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Andree Layton Roaf, Judge.
Appellant Jaclin Bou-dreaux appeals from the trial court’s order changing her minor daughter’s surname from Boudreaux to Mauterstock. On appeal, Boudreaux argues that the trial court’s decision is clearly erroneous. We reverse.
Jaclin Boudreaux and Jacob Mauterstock are the parents of Kaylee, born November 30,1997. The parties have never married, and paternity was established in April 1999. The April 1999 order established that Jacob owed child support, and he was ordered to make payments to the Office of Child Support Enforcement and to provide health insurance for Kaylee. Jacob, however, did not maintain contact with Jaclin or Kaylee, and had not established a relationship with Kaylee until 2001, when Jaclin and Kaylee returned to Arkansas from Florida and Jaclin initiated contact with Jacob. Since Jaclin and Kaylee’s return to Arkansas, Jacob has established a positive relationship with Kaylee, exercising regular visitation with her and paying child support.
On June 24, 2002, Jacob filed an amended petition for change of custody, asserting that since July 2001, he has had physical custody of Kaylee fifty percent of the time; that he enjoys a more stable lifestyle; and that he had learned to care for and nurture Kaylee. The amended petition also requested that Kaylee’s last name be changed from Boudreaux to Mauterstock.
At the hearing on the petition, the trial court heard testimony from several witnesses related to the change of custody issue. Jacob testified that he is now married; that he and his wife, Erica, have a son; that he pays child support and medical expenses; and that he and Jaclin have a cordial relationship and have no problems cooperating with each other regarding visitation. There was no additional testimony presented by Jacob or any of the witnesses called on his behalf regarding his request for name change.
During presentation of her case in defense of the request for change of custody and name change, Jaclin testified only that she did not believe that Kaylee’s name should be changed to Mauter-stock; that Kaylee has had the name Boudreaux for six years; that Kaylee told her that she did not want her name to be changed to Mauterstock; and that there was no reason that Kaylee’s name should be changed.
At the conclusion of the hearing, the trial court continued custody of Kaylee with Jaclin, but modified the visitation schedule. The trial court held that Kaylee’s name should be changed from Boudreaux to Mauterstock, stating, “[I]f there was ever going to be a name change, now would be the time to do it. Keelee [sic] is not going to get any younger. You know, if we go on longer and decide at a later time then those negative issues would arise so I’m going to grant the motion to change her last name to Mauter-stock.” Counsel for Jaclin requested further findings from the trial court on the name change issue, and the trial court found:
[s]he clearly wants Mr. Mauterstock to have a relationship with the child ... he has had a relationship with the child. In fact, part time having half custody of the child. We looked at those circumstances that you talked about, we’ve all discussed that neither one of them have a negative connotation with either last name. There would be no embarrassment to the child to have either last name. While she’s had the name for almost six years, if we were to change it when she’s twelve years old, that might be a litde different, but you know, the only people that she’s been Boudreaux with are her family. She’s had litde time at school. That can be done at school without a great deal of difficulty. He’s paid child support, he is trying to maintain a relationship with his child and it is real hard for someone to understand that this is my daddy but he has a different last name than I do.
Regarding the last finding, counsel for Jaclin requested that the trial court consider that changing Kaylee’s name to Mauterstock would have the same effect on her because she would then have a different last name from her mother. The trial judge responded that the decision would remain; however the trial court’s order stayed implementation of the name change pending this appeal.
Where an order has been entered changing a minor child’s surname, the proper question on appeal is whether the party has demonstrated that such a change is in the best interest of the child considering factors enumerated in Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999). The factors are: (1) the child’s preference; (2) the effect of the change of the child’s surname on the preservation and development of the child’s relationship with each parent; (3) the length of time the child has borne a given name; (4) the degree of community respect associated with the present and proposed surnames; (5) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; (6) the existence of any parental misconduct or neglect. Id. This list is not exhaustive, and the trial court may consider other relevant factors when determining which surname would be in the child’s best interest. Bell v. Wardell, 72 Ark. App. 94, 34 S.W.3d 745 (2000).
In cases involving change of a minor child’s surname, the moving party has the burden of demonstrating that the change is in the child’s best interest. Where there is a full inquiry into the implication of the Huffman factors and a determination is made with due regard to the best interest of the child, the trial court’s decision will not be reversed unless it 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.
With these principles in mind, we consider the case before us. In this instance, Mauterstock presented no evidence regarding his request for name change other than what could be gleaned from the testimony regarding his petition for change of custody. There was no evidence whatsoever presented on several of the factors to be considered by the trial court. Moreover, the mere fact that the child would have a last name different from her father does not establish that it is in her best interest that her name be changed. Accordingly, Mauterstock had the burden of proving that a name change is in Kaylee’s best interest, and, considering the Huffman factors, Mauterstock did not go forward with evidence sufficient to meet that burden. The trial court did not have before it an adequate inquiry into the implications for the minor child of the name change, and the decision granting the name change under these circumstances is thus clearly erroneous.
Reversed.
Bird and Robbins, JJ., agree. | [
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John B. Robbins, Judge.
Appellant William R. Fields and appellee Patricia Ann Fields were divorced by a decree dated July 19,1999, and entered on September 2,1999. The divorce decree ordered an equal division of the parties’ extensive assets. On November 2, 1999, Ms. Fields filed a petition for contempt and to show cause, and on August 18, 2000, a petition for contempt and modification. A hearing was held on January 29, 2001, and on March 5, 2001, the trial court entered an order continuing the case pending an audit to be conducted by a qualified auditor selected by agreement of the parties. On August 21, 2001, Ms. Fields filed another motion for contempt, to show cause, and for modification.
At a hearing held on April 7, 2003, Jack Bottoms, a certified public accountant selected by the parties, gave testimony relating to his analysis of how the assets should be divided. In conducting his accounting, Mr. Bottoms reviewed a twenty-one-page proposed order that had previously been agreed on by the parties. The paragraph of the proposed order pertaining to Mr. Fields’s IRA provides:
The William Fields IBA (Retirement) was valued at $2,261,984.98, as ofjuly 19,1999, and Ms. Fields is entitled to fifty percent (50%) of said sum or $1,130,992.49 plus interest at ten percent (10%) per annum from and after July 19, 1999, to the date of transfer to Ms. Fields’s account which transfer occurred on February 3,2000. Interest from and after July 19,1999, to December 30, 1999, was $50,817.04 ($309.86 per day for 164 days). The sum of $1,181,809.53 should have been transferred to Ms. Fields as of December 30, 1999. Since the transfer did not occur until February 3, 2000, an additional interest of $10,535.24 ($309.86 per day for 34 additional days to February 3, 2000) should have been transferred to Patricia Fields as of February 3, 2000, which sum will accrue interest at the rate of ten percent (10%) from and after February 4, 2000. On February 3, 2000, Mr. Fields transferred the sum of $1,275,163.10 into Ms. Fields’ IBA. for which Mr. Fields is entitled to credit.
Mr. Bottoms testified that he left the February 3, 2000, IRA transfer of $1,275,163.10 totally off ofhis accounting because the assets were transferred in a like-kind exchange. He thus concluded that Mr. Fields was not entitled to any credit for the transfer.
On August 12, 2003, the trial court entered the order from which Mr. Fields now appeals. On appeal, Mr. Fields takes issue with two of the trial court’s findings. First, he argues that the trial court erred in accepting Mr. Bottoms’s accounting to the extent that no credit was awarded for the February 3, 2000, IRA transfer. Next, Mr. Fields argues that the trial court erred in requiring him to pay the entire $11,129.30 fee charged by Mr. Bottoms, where the parties had expressly agreed to each pay half. We affirm on the first point, but we reverse the trial court’s decision to the extent that it holds Ms. Fields responsible for the entire accounting fee.
Mr. Fields’s first argument is that the trial court erred in refusing to enforce the parties agreement pertaining to division of the IBA. He argues that it is clear that the parties did not intend for the transaction to be treated as a like-kind distribution, and that the trial court was bound to accept their agreement that Ms. Fields was only entitled to interest on the sum of the IBA as ofjuly 19, 1999, through the February 3, 2000, date of distribution. Mr. Fields notes that the parties specifically agreed in writing that he would be given credit for the overpayment when he transferred $1,275,163.10 into Ms. Fields’s IRA account.
We do not agree that the trial court committed reversible error when it deviated from the parties’ agreement on the distribution of Mr. Fields’s retirement account. The trial court is not bound by a stipulation entered into by the parties, and it is within the sound discretion of the trial court to approve, disapprove, or modify an agreement. Rutherford v. Rutherford, 81 Ark. App. 122, 98 S.W.3d 842 (2003). The parties came to disagree on some of the terms of the twenty-one-page proposed order, and the order was never signed or entered by the trial court. The divorce decree provided, “Any stock held in the [IRA] shall be divided by reference to date of purchase and costs. The division will be an In kind division of stocks and cash.” Mr. Fields failed to distribute one-half of the IRA account, as directed by the divorce decree, until more than six months after the decree was entered. Under the trial court’s interpretation of its decree, Ms. Fields was entitled to one-half of the value of the IRA at the time of distribution. We think the trial court’s interpretation was reasonable, and under the facts of this case we hold that it did not abuse its discretion in failing to give Mr. Fields credit for any overpayment.
Mr. Fields’s second argument is that the trial court erred in ordering him to pay the entire accounting fee charged by Mr. Bottoms. We agree. At the January 29, 2001, hearing, appellee’s attorney stated to the court, “We are going to agree to employ a certified public accountant” who “will be paid by the parties.” On July 23, 2001, appellee’s attorney sent a letter to appellant’s attorney requesting that appellant pay half of the existing fees. At the April 7, 2003, hearing, appellee’s attorney asked the trial court to address the accounting fees, appellant’s attorney responded, “There’s no question we’re obligated to pay half of those,” and appellee’s counsel answered, “That’s fine.” Even after the trial court issued a letter opinion requiring Mr. Fields to pay the entire fee, Ms. Fields responded to Mr. Fields’s motion for reconsideration and asserted:
Mr. Bottoms clearly understood he was not working one side of the case.
The settlement agreement, which previously [appellant’s counsel] argued did not exist, now he wants to argue does exist. The agreement, if accepted, provided among other things for an equal division on the accountant fees.
One of the Exhibits introduced as evidence is a Transcript in which [appellant’s counsel] agreed Mr. Fields would pay one-half of the accountant’s fees while the work was in progress; however, Mr. Fields never paid and only pays when forced to pay.
Ms. Fields consistently agreed to pay half of the fees, and never asked the trial court to rule otherwise.
While a trial court may refuse to enforce a parties’ agreement, a trial court’s decision cannot be arbitrary or groundless. See Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). In this case the parties repeatedly agreed to each pay half of the fees because Mr. Bottoms was hired by the parties and was working for both sides. The trial court gave no explanation for deviating from the agreement, and we see no rational basis for its action in this regard. We hold that the trial court’s decision requiring Mr. Fields to pay the entire accounting fee was arbitrary and groundless, and amounted to an abuse of discretion. Therefore, we remand to the trial court with instructions to enter an order requiring each party to pay half of the accounting fees.
Affirmed in part; reversed and remanded in part.
Stroud, C.J., Griffen, and Vaught, JJ., agree.
Hart and Baker, JJ., concur in part; dissent in part.
The appellee argues that the order being appealed from was not a final, appealable order, and thus that this appeal should be dismissed. She asserts that there are unresolved issues, which include final division of certain stocks and allocation of the marital debt. However, we disagree because the order resolves these issues. For an order to be final, it must not only decide the rights of the parties, but also put the court’s directive into execution, ending the litigation or a separable part of it. Capitol Life & Accident Ins. Co. v. Phelps, 72 Ark. App. 464, 37 S.W.3d 692 (2001). When an order appealed from reflects that further proceedings are pending that do not involve merely collateral matters, the order is not final. Id. Applying these standards, we have concluded that any potential further proceedings are collateral in nature and that the August 12,2003, order is final for purposes of appeal.
The dissenting opinion suggests that we err in reversing a finding of contempt by the trial court. Although Ms. Fields sought a finding of contempt in this matter, the trial court did not address the issue of contempt. Consequently, neither do we. | [
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Andree Layton Roaf, Judge.
Tonya and William Smith appeal from orders denying their motions for summary judgment and granting appellee Farm Bureau Mutual Insurance Company of Arkansas, Inc.’s (Farm Bureau) motion for summary judgment. Farm Bureau had sought a declaratory judgment that there was no coverage or duty to defend a claim the Smiths brought against a third party for personal injuries resulting from an explosion in a camper trailer. On appeal, the Smiths assert that (1) the trial court erred in denying their motion for summary judgment because an exclusionary clause contained in Farm Bureau’s insurance policy was inapplicable since the camper trailer was not subject to registration; and (2) the trial court erred in granting Farm Bureau’s motion for summary judgment because the camper trailer was not subject to registration, there existed a genuine issue of material fact regarding whether or not the camper trailer was subject to registration, and, in the alternative, the language in the exclusion is ambiguous and creates a jury question. We reverse and remand.
Appellant Tonya Smith was injured when a propane tank exploded in the camper trailer she and her husband William were using as a residence. The camper is non-motorized, but has wheels and a tongue, which can be used for towing. It was located on the property of Elmer and Edna Partain, one of the Smith’s grandparents, when the explosion occurred. The Smiths had received the camper from William’s father, Richard Smith, and it was moved a short distance to the Partain residence by a pickup truck. According to Tonya Smith, she was not sure whether the camper trailer was designed for travel, but the record indicates that it had been previously used for camping trips, and had been towed behind a pickup truck on the public roadway to the camping site. The camper had not been used for two years prior to the Smiths’ using it as a residence. It was not registered in Arkansas, but bore Missouri tags.
On October 11, 2000, Elmer Partain attempted to repair a butane heater inside the camper, and directed Tonya Smith to light the heater. An explosion occurred and Tonya sustained personal injuries. The Smiths sued Elmer Partain, asserting negligence. The Partains’ homeowner’s insurance policy is issued by Farm Bureau. Section II of the policy addresses coverage for “Personal Liability Protection.” It provides
Subject to the limits of liability shown on your declaration, [Farm Bureau] will pay all sums, except punitive damages, arising out of any loss which [the insured, Elmer Partain] become(s) legally obligated to pay as damages because of bodily injury or property damage covered by this policy.
If a claim is made or a suit is brought against you for damages because of bodily injury and/or property damage covered by this policy we, will defend you at our expense, using the lawyers of our choice. We are not obligated to defend you after we have paid an amount equal to the limit of our liability. We may investigate or settle any claim or suit as we think appropriate.
The policy also provides that each person who sustains bodily injury is entitled to protection when that person is “on an insured premises with your permission.” Section II also contains “Exclusion” provisions, which provides in pertinent part:
Unless special permission for coverage is granted by endorsement, certain types of losses are not covered by your policy. Under Personal Liability Coverage and Medical Payments to Others Coverage, we do not cover:
1. bodily injury or property damage arising out of the ownership, maintenance, or use of:
* * *
(b) a motor vehicle. This exclusion does not apply to golf carts while used for golfing purposes, or motorized lawnmowers when used to service your residence premises;
The policy defines “motor vehicle” as:
a. a motorized land or amphibious vehicle designed for travel on or off public roads «-subject to motor vehicle registration;
b. a trailer or semi-trailer designed for travel on public roads and subject to motor vehicle registration. It does not include a boat or utility trailer not being towed by or carried on a motorized vehicle;
* * *
e. any vehicle while being towed by or carried on a motorized vehicle;
(Emphasis added.)
Relying on the exclusionary provisions of the policy, Farm Bureau filed a complaint against both the Partains and the Smiths for declaratory judgment, requesting that the circuit court declare that there existed no coverage or duty to defend under the policy. Farm Bureau then filed a motion for summary judgment, and the Smiths filed a response to the motion and a cross-motion for summary judgment.
In its motion for summary judgment, Farm Bureau stated that it had denied Tonya Smith’s claim for bodily injury because the insurance policy “explicitly excludes coverage for bodily injury or property damage arising out of the ownership, maintenance or use of a motor vehicle.” Farm Bureau asserted that the “1978 Holiday Rambler was a motor vehicle designed for travel on public roads and was subject to motor vehicle registration as set forth in the policy.” Therefore, Farm Bureau concluded, no genuine issue of material fact existed. Farm Bureau provided as exhibits to its motion, the policy, the negligence complaint filed by Tonya Smith against Elmer Partain, the Smiths’ and Partains’ answers to interrogatories and requests for admissions, and depositions of Richard Smith and Tonya Smith.
In his deposition, Richard Smith testified that Tonya and William were to use the camper as a residence until they bought a house. The camper did not have a motor and was not capable of self-propulsion. When it was transported for the Smiths, the camper was pulled approximately three-quarters of a mile on a public road. It was not registered, and had not been used for several years. Richard Smith stated that he could not say whether or not the camper had ever been registered, but that it had a Missouri license on it. He also stated that the previous owner, his wife’s ex-husband, never indicated that the camper had been used in transportation or on any highway.
Tonya Smith also testified that the trailer had not been used in several years; that she and her husband were using the camper temporarily; that it did not have an engine; that it appeared to be capable of travel because it had a tongue where it could be hooked to a hitch; and that she did not know whether it had been registered.
The Smiths asserted in their response and cross-motion for summary judgment that the “non-motorized residential camper trailer in this case is not ‘designed for travel on public roads and subject to motor vehicle registration.’ Therefore, it falls outside the policy exclusion.” They argued that as a matter of law, Farm Bureau’s motion should be denied and that their motion should be granted. The Smiths argued that because the camper was not driven along a highway and was being used as a residence, it is not subject to registration. They further argued that any transportation of the camper on the public highways was incidental to its intended use.
In support of their cross-motion, the Smiths attached the affidavit of Fred Porter. Porter, the Administrator of the Office of Motor Vehicles, Arkansas Department of Finance and Administration, stated, “If a camper is not driven or moved on a highway in the State of Arkansas, and if it is used on a piece of property as a residence, it is not required to be registered or licensed by the State of Arkansas.”
Farm Bureau denied that the camper was not subject to registration. It argued that Porter’s affidavit was insufficient because it did not specifically identify the camper at issue in this case. Farm Bureau also asserted in its response to the Smiths’ motion for summary judgment that if the camper was not a motor vehicle, but rather a residence, there would still be no coverage because the camper was not “an insured residence” under the policy, an alternative argument that it did not raise in its motions for summary judgment and does not make on appeal.
The trial court first denied both motions for summary judgment. Subsequently, the Smiths filed a second motion for summary judgment. They argued that the policy excluded coverage if the camper trailer was both “designed for travel on public roads and subject to motor vehicle registration,” that the camper was not subject to registration, and that the policy exclusion thus did not apply. They argued that Porter testified that the camper was not subject to registration unless it was being towed, and noted that the camper was being used as a residence. They further argued that, because the policy did not specifically address when the “subject to registration” requirement applied, it should be construed against Farm Bureau, with all doubts and inferences given to the insured. The Smiths attached a copy of the policy, a copy of Porter’s deposition, excerpts from Tonya Smith’s deposition, and incorporated by reference the parties’ previous motions for summary judgment and exhibits attached thereto.
In Porter’s deposition, he stated that one of his job duties involved making a determination of whether a motor vehicle or trailer must be registered. “The phrase ‘subject to registration’ means a vehicle that must be registered under the Arkansas vehicle registration laws.” According to Porter’s deposition, a non-motorized camper trailer that is being used as a residence on a parcel of land is not subject to registration because it is not being used on the roads and highways in the state of Arkansas. Fie stated that a camper sitting on a piece of property is not subject to registration until it is put on the roads. Even then the camper would only be subject to registration during the time in which it was being towed, after which the registration can be transferred away.
Porter admitted in his deposition that he had not seen the camper in question, but stated that based on the information provided by the Smiths’ counsel, the camper would qualify as a “semi-trailer.” A semi-trailer is a trailer that has some of its weight carried on a towing unit, and some of the weight carried on the vehicle itself. Porter concluded that the camper in this case would be subject to registration while being towed, but not subject to registration while it was placed on the property in question.
Farm Bureau responded to the Smiths’ second motion for summary judgment and renewed its motion for summary judgment. The motion essentially denied the Smiths’ assertion that the camper was not subject to registration and was not a motor vehicle designed for travel on the public roads. Farm Bureau further contended that the language at issue was clear and unambiguous; that there existed no genuine issue of material fact in regard to whether it owed any coverage or duty to defend; and that it was entitled to summary judgment as a matter of law.
The trial court issued orders denying the Smiths’ motion for summary judgment and granting the motion as to Farm Bureau. The court found that the policy did not provide coverage for Smith’s injuries or a duty to defend; that there was no genuine issue of material fact in this regard; and that Farm Bureau was entitled to summary judgment as a matter of law. The Smiths appeal the orders denying their motion for summary judgment and granting Farm Bureau’s motion for summary judgment.
On appeal, the Smiths argue that the trial court erred in both denying their motions for summary judgment and in granting summary judgment to Farm Bureau. Summary judgment should be granted only when it is clear that there are no genuine issues of material fact, and the party is entitled to judgment as a matter of law. Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002).
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 review, we must determine whether there are any genuine issues of material fact. Id. In our review, we consider whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. All proof is viewed in the light most favorable to the party resisting the motion, with all doubts and inferences resolved against the moving party. Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981).
The law regarding construction of insurance policies is well settled. Castaneda v. Progressive Classic Ins. Co., 357 Ark. 345, 166 S.W.3d 556 (2004). Once it is determined that there is coverage, it must be determined whether the exclusionary provisions in the policy eliminate coverage. Id. Exclusionary endorsements must adhere to the general requirements that the insurance terms must be expressed in clear and unambiguous language. Id. If the language is unambiguous, we give effect to the plain language of the policy. Id. If the language is ambiguous, then we resort to the rules of construction. Id. The construction and legal effect of a written contract are matters to be determined by the court. Smith v. Prudential Property and Casualty Ins. Co., 340 Ark. 335, 10 S.W.3d 846 (2000). Provisions of an insurance policy are construed most strongly against the insurance company, which prepared it. Id. If reasonable construction can be given to the policy, which would justify recovery, it is the court’s duty to do so. Id. If the language of the policy is susceptible to two interpretations — one favorable to the insured and one favorable to the insurer, then the interpretation most favorable to the insured must be adopted. Id.
Ordinarily, the question of whether the language of an insurance policy is ambiguous is one of law to be resolved by the court. Nichols v. Farmer, 83 Ark. App. 324, 128 S.W.3d 1 (2003) (citing Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001)). Where, however, parol evidence has been admitted to explain the meaning of the language, the determination becomes one of fact for the jury to determine. Id. Where there is a dispute as to the meaning of a contract term or provision, be it an insurance or other contract, the trial court must initially perform the role of gatekeeper, determining first whether the dispute may be resolved by looking solely to the contract or whether the parties rely on disputed extrinsic evidence to support their proposed interpretation. Id. As Justice George Rose Smith explained, “[t]he construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence.” (Emphasis added.) Southhall v. Farm Bureau Mut. Ins. Co., 276 Ark. 58, 632 S.W.2d 420 (1982). Thus, 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. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001). On the other hand, where the parties go beyond the contract and submit disputed extrinsic evidence to support their proffered definitions of the term, this is a question of fact for the jury. Id. In the latter situation, summary judgment is not proper. Id.
An order denying a motion for summary judgment is only an interlocutory order and is not appealable. City of North Little Rock v. Garner, 256 Ark. 1025, 511 S.W.2d 656 (1974). Review of certain interlocutory orders is allowed in conjunction with the appeal of a final judgment. Id. Thus, an order denying summary judgment may be reviewable in conjunction with an appeal of an order granting summary judgment. See id.
In Wilson v. McDaniel, 247 Ark. 1036, 449 S.W.2d 944 (1970), the supreme court stated, “certain interlocutory orders are reviewable in conjunction with a final judgment; an order granting summary judgment is a final order, and therefore is appealable.” In Wilson, supra, both parties had filed motions for summary judgment, and the trial court granted summary judgment to the appellees, which effectually denied summary judgment to the appellants. The supreme court stated that, although the denial of the appellant’s motion for summary judgment was interlocutory, it was necessary to discuss the appellant’s alleged grounds for summary judgment in order to show that there were unresolved material issues, which could only be disposed of after a trial. Accordingly, we will consider both the Smiths’ and Farm Bureau’s grounds for summary judgment in deciding if summary judgment was proper in this case.
With these principles in mind, we consider the Smiths’ arguments regarding the grant of summary judgment to Farm Bureau. The relevant provision of the Farm Bureau policy at issue excludes from liability and medical-payment coverage bodily injury arising from use of a “motor vehicle.” Farm Bureau’s definition of “motor vehicle” includes definitions for both motorized and nonmotorized vehicles. Unlike the motorized vehicle definition, a trailer or semi-trailer must be both designed for travel on public roads and subject to motor vehicle registration to be excluded. (Emphasis added.) However, one must further examine the relevant Arkansas statutory provisions to determine whether and under what conditions a vehicle or other object is “subject to” motor vehicle registration. In this regard, Ark. Code Ann. § 27-14-703 (Repl. 2004) provides in pertinent part:
Every motor vehicle, trailer, semitrailer, and pole trailer when driven or moved upon a highway and every mobile home shall be subject to the provisions of this chapter except:
* * *
(2) Any vehicle which is driven or moved upon a highway only for the purpose of crossing such a highway from one (1) property to another[.]
(Emphasis added.) “Semitrailer” means every vehicle with or without motive power, other than a pole trailer, designed for carrying persons or property and for being drawn by a motor vehicle and so constructed that some part of its weight and that of its load rests upon or is carried by another vehicle. Ark. Code Ann. § 27-14-210 (b) (Repl. 2004).
The camper trailer in this case is best categorized as a semi-trailer. It meets the definition of Ark. Code Ann. § 27-14- 210(b), and Porter testified that the camper trailer would be classified as a semi-trailer. Richard Smith explained that when moved, the camper trailer was attached to the back of a pickup truck and towed to its destination. Tonya Smith described a tongue on the camper trailer that could be “hitched” to another vehicle for towing. Porter also explained that based on the information he received, the camper trailer would be classified as a semi-trailer because only part of its weight rests on the towing vehicle.
Thus, under the plain language of Farm Bureau’s policy, coverage for injuries arising out of operation or use of a nonmo-torized semitrailer is excluded when the semi-trailer is “designed for travel on the public roads and is subject to registration.” The phrase is conjunctive and requires proof of both clauses. However, on appeal, the Smiths argue against the effectiveness of the exclusionary clause only with regard to the “subject to registration” language.
We agree with the Smiths that the policy language, when coupled with the relevant statutory provisions, does not clearly exclude liability coverage for a semitrailer used solely as a residence. Farm Bureau in essence contends that the exclusion clause be broadly construed to include the “type of’ trailer that is “capable of’ being registered pursuant to Arkansas motor vehicle laws. However, the definition employed, in contrast with that for motorized vehicles, which encompasses vehicles designed for travel on or off public roads, or subject to motor vehicle registration, is not so clear and explicit as Farm Bureau would suggest. (Emphasis added.)
The Smiths also provided the opinion testimony of the Administrator of the State Office of Motor Vehicles in support of their defense to Farm Bureau’s motions and their own motions for summary judgment, who unequivocally stated that the camper trailer in question was not subject to registration based upon its use as a residence. Moreover, the relevant Arkansas statute states that a semitrailer shall be “subject to registration” only “when driven or moved upon a highway,” providing a temporal aspect to the term in question that is absent from the interpretation put forth by Farm Bureau.
Here, although both parties went beyond the four corners of the policy, and relied upon some extrinsic evidence to support their respective interpretations, this extrinsic evidence was not in conflict. Accordingly, it was the trial court’s duty to determine whether the policy language was ambiguous, and we agree that the trial court erred in failing to find that it was ambiguous.
Reversed and remanded for further proceedings to determine damages.
Pittman, Hart, and Robbins, JJ., agree.
Baker, J., concurs.
Vaught, J., dissents.
Although the Partains were parties to the declaratory-judgment action, they do not appeal from the trial court’s granting of summary judgment. | [
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George K. Cracraft, Chief Judge.
C. R. Appollos appeals from a decree of the Clark County Chancery Court dismissing his complaint and quieting appellees’ title to a tract of land. We find no error and affirm.
The facts necessary to our decision are not in dispute. It was stipulated that appellees had record title to the Southeast Quarter of the Southwest Quarter of Section 30, Township 7 South, Range 22 West in Clark County and had paid taxes on it since 1927. Prior to 1950, appellant’s predecessor in title had enclosed a one-acre tract of appellees’ land and grazed cattle on it under circumstances that vested title in appellant’s predecessor by adverse possession. In 1953, however, appellant’s predecessor ceased to use the land for any purpose and permitted it to return to its natural state as timber land. By 1973, when appellant acquired the property, the land was no longer enclosed. The record indicates that, since 1953, the only act of dominion over the property performed by appellant was the cutting of several trees. During the same period, appellees bladed fire lanes, painted lines, and did several controlled burns. From the evidence, the chancellor found that appellees had reestablished title to the one-acre tract prior to the commencement of the action and quieted appellees’ title against the claims of appellant.
Although we review chancery cases de novo on the record, we do not reverse the decision of the chancellor unless his findings are clearly against the preponderance of the evidence, giving due deference to his superior position to judge the credibility of the witnesses and the weight to be given their testimony. Hicks v. Flanagan, 30 Ark. App. 53, 782 S.W.2d 587 (1990); Clark v. Clark, 4 Ark. App. 153, 632 S.W.2d 432 (1982); Ark. R. Civ. P. 52 (a).
Appellant contends that the chancellor erred in finding that appellees had reestablished title to the property by adverse possession, arguing that appellees’ acts of ownership and actual possession of the tract after 1973 were only fitful and insufficient to overcome appellant’s constructive possession as holder of the legal title. We need not reach the merits of appellant’s specific argument because, upon our de novo review of the record, we find a compelling reason to conclude that appellees had reacquired the property by adverse possession.
Arkansas Code Annotated § 18-11-102 (1987) provides that unimproved and unenclosed land shall be deemed to be in the possession of the person who pays taxes on it for at least seven years in succession, provided that he has color of title. See Charles v. Pierce, 238 Ark. 22, 378 S.W.2d 213 (1964). The possession contemplated by this section has the same effect as if the person paying the taxes had been in actual, adverse possession of the land for the full seven-year period. Smith v. Boynton Land & Lumber Co., 131 Ark. 22, 198 S.W. 107 (1917). Payment of taxes under color of title for more than seven years on unenclosed and unimproved property confers title by limitation. Buckner v. Sewell, 216 Ark. 221, 225 S.W.2d 525 (1949); Reynolds v. Snyder, 121 Ark. 33, 180 S.W. 752 (1915). See Burbridge v. Bradley Lumber Co., 214 Ark. 135, 215 S.W.2d 710 (1948). The payment of taxes under this section constitutes an eviction of all others who claim to be in constructive possession. See Union Sawmill Co. v. Pagan, 175 Ark. 559, 299 S.W. 1012 (1927).
The fact that appellees’ record title was divested by adverse possession, or that the land had once been enclosed by appellant’s predecessors and improved, does not mandate a different result. In Moore v. Morris, 118 Ark. 516, 177 S.W. 6 (1915), on facts peculiarly similar to those here, the court declared:
We are of the opinion, also, that even if DeMoss or his heirs acquired title by adverse possession, that title was reacquired by the original owners, the Lester heirs, by payment of taxes under color of title under the Act of March 18, 1899 [Ark. Code Ann. § 18-11-102]. The undisputed evidence is that Lester and his heirs paid taxes on the land continuously up to the time it was sold to appellant. Their paper title, which constituted absolute title up to the time the ownership was wrested from them, if at all, by the adverse occupancy of DeMoss, continued thereafter at least as color of title, and the payment of taxes while the land was in a wild state and unoccupied restored the title to them by adverse possession according to the terms of the statute.... The statute applies only to “unimproved and unenclosed land;” that is to say, land that is wild and in a state of nature. This does not mean, however, that the lands must never have had any other status, for improved lands may be permitted to return to a state of nature. The statute relates to the condition of the lands at the time the payment of taxes is made under color of title, regardless of the former state of the lands; and if at that time they are unimproved and uninclosed, that is to say in a wild state as before the improvements were first made, then they fall within the terms of the statute and such payments amount to occupancy which will in course of time ripen into title by limitation. Fenton v. Collum, 104 Ark. 624.
Moore, 118 Ark. at 523-24, 177 S.W. at 8 (emphasis added) (footnote omitted). See also Beshea v. Vlazny, 228 Ark. 559, 309 S.W.2d 28 (1958), Wimberly v. Norman, 221 Ark. 319, 253 S.W.2d 222 (1952); Horn v. Blaney, 268 Ark. 885, 597 S.W.2d 109 (Ark. App. 1980).
Here, the property returned to its natural state by 1953 and ceased to be enclosed by 1973. Appellees, under color of title, made payment of taxes on the land for more than seven years thereafter. Therefore, we conclude that the chancellor correctly held that appellees’ legal title had been reacquired by adverse possession.
Affirmed.
Mayfield and Rogers, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this worker’s compensation case was the appellee’s employer, and it accepted an October 10,1986 injury as compensable and further accepted a twenty-percent (20%) permanent partial disability and paid benefits accordingly. However, the appellant controverted any benefits in excess of twenty-percent (20%) permanent partial disability and argued that the appellee was not permanently and totally disabled as a result of her October 10, 1986, injury. A hearing was held before an administrative law judge (ALJ) who noted that the appellant controverted benefits in excess of 20 % permanent partial disability, determined that the appellee is permanently and totally disabled, and ordered the appellant to pay all reasonable hospital and medical expenses arising out of the October 10, 1986, injury. The appellant appealed this decision to the full Commission, which adopted the administrative law judge’s opinion. From the Commission’s decision, comes this appeal.
On appeal, the employer raises three points for reversal: first, that the Commission failed to make sufficiently detailed findings to allow for a meaningful review by this Court; second, that there was no substantial evidence to support the findings of the administrative law judge which were adopted by the full Commission, and that the ALJ incorrectly shifted the burden of proof to the employer; and third, that the appellee was offered but refused suitable light work and therefore was not entitled to benefits in excess of her twenty-percent (20 %) permanent partial impairment. We disagree with the employer’s arguments and we affirm.
As to the argument that the Commission’s findings were insufficient to permit meaningful review by this Court, we simply do not find this to be the case. In the case at bar the Commission issued a brief opinion which set out the specific findings of the administrative law judge, and affirmed and adopted the administrative law judge’s opinion as the decision of the Commission. Under Arkansas Law, the Commission is permitted to adopt the administrative law judge’s decision. See Odom v. Tosco Corp., 12Ark. App. 196, 672 S.W.2d 915 (1984). Moreover, in so doing the Commission makes the findings and conclusions of the administrative law judge also the findings and conclusions of the Commission. See Lybrand v. Arkansas Oak Flooring Co. and Liberty Mutual Insurance Co., 266 Ark. 946, 588 S.W.2d 449 (1979). Therefore, for purposes of our review, we consider both the administrative law judge’s order and the Commission’s order. In this case the administrative law judge went into great detail in his opinion and set out the circumstances of the case and the evidence supporting his findings; therefore we find that the findings of fact made by the administrative law judge and adopted by the Commission are sufficiently detailed to enable this Court to determine whether or not the Commission’s findings are supported by substantial evidence.
The appellant asks us to overrule St. Vincent Infirmary v. Carpenter, 268 Ark. 951, 597 S.W.2d 129 (Ark. App. 1980). It argues that the St. Vincent decision should not be allowed to stand because it permits the Commission to “rubber stamp” the administrative law judge’s decision. We do not agree. In St. Vincent, this Court held that the Commission met its obligation to find the facts by adopting the administrative law judge’s decision and that, by adopting the administrative law judge’s decision, the Commission made sufficient findings for purposes of our review. We are mindful of the Commission’s duty to conduct a de novo review on the basis of the record as a whole when deciding any issue. Ark. Code Ann. § 11-9-704 (1987). However, after conducting such a review, the Commission may adopt the administrative law judge’s findings which are identical to those arrived at by the Commission. See e.g. Southwest Pipe and Supply and Ins. Co. of North America v. Hoover, 13 Ark. App. 144, 680 S.W.2d 723 (1983), see also Odom, supra. We find no merit in the appellant’s argument, and we decline to overrule St. Vincent, supra.
In its next argument the appellant contends, first, that there is no substantial evidence to support the Commission’s decision, and second, that the burden of proof was improperly shifted to the employer. In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, we review the evidence in the light most favorable to the Commission’s findings, and we must affirm if there is any substantial evidence to support these findings. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). We may reverse the Commission’s decision only when we are convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion arrived at by the Commission. Snow v. Alcoa, 15 Ark. App. 205, 691 S.W.2d 194 (1985).
Viewed in the light most favorable to the Commission’s findings, the record reveals that the claimant was fifty-nine years old at the time of the accident; that she had worked for the employer for fourteen years; that she had not been diagnosed as having osteoporosis until her work-related accident; and that, several weeks following her accident at work, there was a subsequent incident in which her back popped and she experienced pain and muscle spasms similar to that which she had experienced after her October 10, 1986, fall.
On October 21,1986, the claimant sought medical attention and, at the request of Dr. Joseph, the company doctor and the claimant’s treating physician, x-rays of the claimant’s back were taken by Dr. Elliot, a radiologist. These x-rays did not reveal a fracture but did show osteoporotic change. Dr. Joseph noted, however, that following an incident at home on November 1, 1986, while the claimant was sitting on a commode, she felt a pop in her back and experienced pain and muscle spasms and that she was seen in an emergency room where repeat lumbar x-rays revealed a questionable slight compression fracture. The x-rays were followed up with a CT scan which confirmed the fracture.
The claimant was also seen by Dr. Weber, who noted in this medical report dated June 12,1987 that he x-rayed the claimant and found compression fractures and severe osteoporosis. He stated that because of the fractures, her age, and her osteoporosis, she was 100 % impaired but that if all she had were the fractures incurred in the line of her normal work, her impairment would be ten to twenty percent to the body as a whole, and that a rate of twenty percent to the body as a whole could be attributed to her work injury.
Medical records from Dr. Staggs, who first examined the claimant on September 27, 1988, corroborate the diagnosis of Drs. Joseph and Weber. Specifically, Dr. Staggs states in his medical report that the claimant’s x-rays confirm severe osteoporosis and compression fractures, that the claimant has been at 100% disability since the diagnosis, and that she will never improve. He stated that, because of the pain, he saw no likelihood of her being gainfully employed.
The claimant was also seen by Dr. Jordan on February 8 and April 10, 1989. He concluded that the compression fractures were secondary to the osteoporosis, that she was unable to do any appreciable work at that time because of these problems, and that he did not anticipate that she would be able to return to any productive activity.
The only contrary medical evidence is an entry by Dr. Jordan, dated April 10, 1989. He stated that there was inadequate medical evidence to link the fractures or the claimant’s present condition to the October 10, 1986 fall.
The Commission has the duty of weighing medical evidence as it does any other evidence and, if the evidence is conflicting, the resolution of the conflict is a question of fact for the Commission. Mack v. Tyson Foods, Inc., 28 Ark. App. 229, 771 S.W.2d 794 (1989). Moreover, the testimony of medical experts is an aid to the Commission in its duty to resolve issues of fact, and it has the duty to use its expertise and experience in translating that testimony into findings of fact. C.J. Horner Co. v. Stringfellow, 14 Ark. App. 138, 685 S.W.2d 533 (1985). As noted earlier, we may reverse the Commission’s decision only when we are convinced that fair-minded persons with the same facts before them could not have reached the same conclusion arrived at by the Commission, Snow, supra, and in this case we cannot so conclude. We hold that there is substantial evidence to support the Commission’s finding that the claimant proved by a preponderance of the evidence that she is permanently and totally disabled as a result of her injury arising from her work-related accident on October 10, 1986.
As to the argument that the administrative law judge incorrectly shifted the burden of proof to the employer, we find that this was not done. The opinion sets forth the employer’s contention and then states that “[t]he medical evidence when read in its entirety does not support that conclusion.” This statement is followed by the administrative law judge’s findings with regard to the medical evidence after which he concludes that “the claimant has proven by a preponderance of the evidence that she is permanently and totally disabled as a result of her injury in the course and scope of her employment on October 10, 1986.” We read these as findings indicating that the administrative law judge found that the preponderance of the evidence showed a causal connection between the claimant’s fall at work and the claimant’s compression fractures and we perceive no shift in the burden of proof.
The appellant next argues that the claimant was offered suitable work which she refused and that her award should not exceed twenty percent permanent partial impairment. The appellant cites Ark. Code Ann. § 11-9-526 (1987) as support for its contention. This statute provides that “[i]f any injured employee refuses employment suitable to his capacity offered to or procured for him, he shall not be entitled to any compensation during the continuance of the refusal, unless in the opinion of the commission, the refusal is justifiable.” In this case it is undisputed that the job specifications were designed under the supervision of Dr. Joseph, whose work restrictions allowed the claimant to lift and carry twenty pounds frequently and thirty pounds occasionally. However, the appellant admits that the job was formulated without consideration of Dr. Weber’s report which stated that the claimant was 100% disabled. We think that this constitutes substantial evidence from which the Commission could determine that the claimant’s refusal of the job was justifiable because the job was unsuitable. Furthermore, Ark. Code Ann. § 11-9-526 (1987) provides that a claimant who unjustifiably refuses suitable work would not be entitled to any compensation. (Emphasis added.) Here the appellant argues that the claimant is not entitled to benefits in excess of her permanent partial disability of 20 percent to the body as a whole and the controlling authority cited for this argument is Ark. Code Ann. § 1 l-9-522(b) (1987) which states:
(b) In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his future earning capacity. However, so long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident, he shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.
Under these circumstances we do not think that the job offered to the claimant, disregarding the question of whether or not she received the offer, is reasonably obtainable in light of the job specifications as we have previously discussed.
Affirmed.
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Melvin Mayfield, Judge.
Appellant, Student Loan Guarantee Foundation of Arkansas, Inc. (SLGFA), appeals an order of the Pulaski County Circuit Court holding it liable to appellee, Barnes, Quinn, Flake & Anderson, Inc. (Barnes, Quinn) for a $26,000.00 real estate commission. For reversal, appellant argues the circuit judge erred in holding (1) that the contract was ambiguous and (2) that the property purchased by the foundation constituted “office space.”
On February 18, 1988, Ronald L. Nichoalds, executive director of SLGFA, a nonprofit corporation which guarantees loans for Arkansas students, entered into an agreement with Ramsay Ball, of Barnes, Quinn, which provided:
The Student Loan Guarantee Foundation of Arkansas (SLGFA) wishes to engage Barnes, Quinn, Flake & Anderson, Inc. as its Exclusive Agent to assist the SLGFA in locating office space in the Little Rock area.
The term of this Exclusive Agency agreement shall be for nine months from the date of your acceptance of the agreement. In consideration of our working exclusively through your firm, you will assist us in determining our criteria, survey the Little Rock market for alternative solutions, assist in evaluating the alternatives, and negoti ate on behalf of SLGFA. In the event that you have an agency relationship with the selling party, you will disclose this upon presentation of the particular property.
The fee to Barnes, Quinn, Flake & Anderson, Inc. is to be paid by the building or property owner. Furthermore, it is our understanding that there are no additional fees involved in any work that you may do for us unless mutually agreed to prior to the commencement of such work.
Your acceptance of this agreement should be indicated below.
On September 22, 1988, Barnes, Quinn filed suit in Pulaski County Circuit Court alleging that SLGFA had purchased the “Shack” property located in Little Rock at Third and Victory Streets, across the street from the foundation’s current offices, for $260,000.00, without the use of the services of Barnes, Quinn. It was alleged that this violated the exclusive agency agreement (set out above) and that Barnes, Quinn was entitled to a commission of $26,000.00 based on the purchase price.
SLGFA answered, admitting that it had purchased the “Shack” property, but denying that Barnes, Quinn was entitled to a commission. SLGFA affirmatively alleged that the property purchased did not constitute “office space” within the meaning of the contract between the parties; and, in any event, that the contract specified that all fees due were to be paid by the seller of any property purchased.
At trial Dickson Flake, one of the owners of Barnes, Quinn, testified that he had been informed by an employee of the firm, Ramsay Ball, that SLGFA was in need of increased office space and that Ball intended to contact SLGFA to see if Barnes, Quinn could be of assistance. Flake said he subsequently reviewed a proposed letter contract which Ball had prepared, made some alterations to it, and approved the firm’s commitment as set out in the letter. (At this point, Barnes, Quinn introduced into evidence the letter agreement which we quoted above.) Flake explained that pursuant to this agreement Barnes, Quinn surveyed existing buildings for purchase, and office sites for development, and presented a report to SLGFA. Also, he said, some potential properties were shown Mr. Nichoalds. Flake testified that his firm was subsequently asked to locate immediate emergency space suitable for a computer facility, and the firm ultimately negotiated, on behalf of SLGFA, a one-year lease of office space in the First Federal Building for which Barnes, Quinn was paid a fee of approximately $2,000.00 by First Federal.
Flake testified that his firm was asked to find this interim office space in March of 1988. After this, in late April of 1988, he learned from Ramsay Ball that SLGFA was negotiating to purchase the “Shack” property, and he and Ball had a meeting with Nichoalds and Connie Meskimen, general counsel for SLGFA. Flake explained his firm’s position that negotiations by SLGFA for the “Shack” property would come under the terms of the contract his firm had with SLGFA. He said he was instructed that Barnes, Quinn was not to contact Claude Carpenter, the owner of the “Shack” property; that Barnes, Quinn was to take no part in the negotiations; and that SLGFA’s in-house counsel would be its sole representative in that transaction. Flake said he was presented with a copy of the signed letter agreement of February 18, 1988, and asked to sign the following clause typewritten on the bottom:
The foregoing agreement is not intended to create an agency agreement between SLGFA and Barnes, et. al. for any real estate purchase by the SLGFA, or for any office space which the SLGFA may undertake to build during or subsequent to the expiration of this agreement.
According to Flake, he refused to execute this addendum to the original contract.
Flake acknowledged that the letter agreement of February 18,1988, called for Barnes, Quinn to collect its commission from the seller of the property, but he said he explained to SLGFA’s representatives that “if we were prevented by the Foundation from being involved and they were explicitly instructing us not to contact Mr. Carpenter, then we were — we would be unable to collect our fee from the seller.” Flake said that his firm was entitled to a $26,000.00 commission based upon 10% of the purchase price of $260,000.00. He said this was the normal fee for undeveloped property. Flake also testified that the Little Rock Capitol Zoning District requires one parking space for each 300-400 square feet of office space; that office space without parking is virtually valueless; and that, in his opinion, a parking lot acquired to complement or be used in connection with an office building constitutes office space.
Mr. Flake also testified that after SLGFA purchased the “Shack” property, it leased a building that was managed by Barnes, Quinn. This building was located a block and a half to two blocks west of the existing SLGFA offices. The “Shack” property was between SLGFA’s existing offices and the building it leased through Barnes, Quinn. The lease was for five years and was entered into after SLGFA had purchased the “Shack” property. Barnes, Quinn was not acting for SLGFA in this transaction but was being paid to manage the building that was leased.
When this case was tried on September 28,1989, Mr. Flake testified that the building leased to SLGFA was being used for office space. Also, at that time, the “Shack” property was being used as a parking lot, according to Flake’s testimony. He also admitted that there was not an office building on that property on the day of trial, and he agreed that the property was not office space as it then existed. He did testify, however, that he was told by either Mr. Meskimen or Mr. Nichoalds that the “Shack” property was being acquired “for the purpose of their expansion.” He was not told that they were going to build a building on it, but he inferred that they were going to use it for office space. He also admitted that SLGFA could hold the property for a while and then sell it, and that would be land speculation; but he said if the property is used to support an expansion of their existing office facilities “it is office space.”
James E. Hathaway, Jr., a Little Rock real estate agent, was called as a witness by Barnes, Quinn. He testified that he was familiar with the “Shack” property and knew that someone had spent some money on the property, and it was now a fairly nice parking lot. He said in his opinion it was “office space” because it was being used in connection with SLGFA’s office building.
Ronald L. Nichoalds testified that he was employed by SLGFA as its executive director. He said that they had needed office space badly and, without the approval of the board of directors, he executed the letter agreement of February 18,1988. He said as a result of the agreement, SLGFA subsequently executed a one-year lease for offices in the First Federal Building. In regard to the “Shack” property, he said when it was purchased it had an old restaurant building and two “concrete-like block buildings” on it; these were all torn down and they spent about $30,000.00 in turning the property into a parking lot. He said the property was originally purchased because it was an attractive investment property close to the state capitol complex; because it was an attractive building site; and because resale was an option. However, he said it was currently being used as a parking lot; that SLGFA had no long-term plan for the property except for parking; and that there have been no building plans drawn up for the site. Nichoalds said he told Ramsay Ball at the outset that he preferred to move out of the area where SLGFA was then located. Consequently, he said Ball did not show him anything in the area until SLGFA’s directors decided to look for space to lease. He admitted that the agreement with Barnes, Quinn covered the acquisition of “office space,” but he said the “Shack” property was not purchased for “office space” and was currently being used as a parking lot — not as “office space.”
Based upon the above testimony, and other testimony which we need not summarize, the trial court found for Barnes, Quinn. The pivotal finding of fact made by the judge was that “the acquisition of the property across the street from its office site defeated the agreement of the parties on failure of the Student Loan Guarantee Foundation to secure the payment of a commission required by its undertaking with the Plaintiff.” In Manzo v. Park, 220 Ark. 216, 247 S.W.2d 12 (1952), the court said it is a breach of contract for the owner to sell property he has granted another the exclusive right to sell, and this will render the owner liable for such damages as the other person may prove he sustained. See also Earls v. Long, 224 Ark. 57, 271 S.W.2d 784 (1954) (owner who wrongfully cancels the exclusive listing is liable for damages). The same principle would allow Barnes, Quinn to recover in the instant case if SLGFA’s purchase of the “Shack” property breached the exclusive agency agreement between them. While SLGFA has not questioned the amount of the recovery allowed, it does question the right of Barnes, Quinn to recover in any amount.
It is SLGFA’s contention that the purchase of the “Shack” property did not breach its contract with Barnes, Quinn because the “Shack” property was not “office space.” SLGFA argues that the letter agreement with appellee, Barnes, Quinn was not ambiguous, and the trial court erred in allowing parol evidence to explain or vary the meaning of the term “office space” used in the agreement. The appellant also argues that even if the term “office space” was ambiguous, the trial court’s finding that the “Shack” property constituted “office space” ws clearly erroneous.
Prior to the taking of testimony, counsel for appellant made a motion in limine. During the course of the ensuing discussion the judge said to counsel for appellant:
Well, let me say this. If you are saying that you don’t want him amending the contract by parol evidence, then I would agree that... if it is a formal contract, you can’t amend that by some sort of parol evidence. However, as I said, I think you can introduce parol evidence to, lack of a better term, ferret out ambiguity.
And the discussion finally concluded with these remarks by the judge:
Well, for the purpose of the record here, I will deny his motion. As I say, the only thing I’m trying to do here is make sure that the record shows the purpose of the Court in denying his motion, and that is that I — to the extent that it would be introduced for the purpose of amending a formal contract, the Court is not going to receive it, or is not going to treat it in that fashion, but he will treat it with the idea that if it introduces — by its introduction it introduces to the Court an ambiguity into the contract, then the Court will consider it for substantial evidence, all right?
During the testimony of the first witness, counsel for appellant made several objections on the grounds that the questions by counsel for the appellee were attempts to vary or explain the written contract by parol evidence and eventually the court gave appellant’s counsel a continuing objection to questions which might violate the parol evidence rule.
We agree with the appellant’s contention that its agreement with the appellee was not ambiguous and that the trial court erred in allowing parol evidence to explain or vary the meaning of the term “office space” used in the agreement. As pertinent to this case, Webster’s Ninth New Collegiate Diction ary (1983) defines the word “office” as a “place where a particular lcind of business is transacted or a service is supplied,” and “space” is defined as “an extent set apart or available.” The American Heritage Dictionary (2d College ed. 1982) defines “office” as “a place in which business, clerical or professional activities are conducted,” and “space” is defined as “an area provided for a particular purpose.” Black’s Law Dictionary (5th ed. 1979) defines “office” as “a place for the regular transaction of business or performance of a particular service.” Obviously, a parking lot will not meet these dictionary definitions pertaining to “office space.”
In C & A Construction Company, Inc. v. Benning Construction Company, 256 Ark. 621, 509 S.W.2d 302 (1974), the parties had entered into a written agreement which provided that the appellee would “receive $20,000 for supervision which will be added to the actual cost figure.” The court set out the following general rules about the construction of contracts.
When contracting parties express their intention in a written instrument in clear and unambiguous language, it is our duty to construe the written agreement according to the plain meaning of the language employed.... However, where the meaning of a written contract is ambiguous, parol evidence is admissible to explain the writing. . . . Ambiguities are both patent and latent. When, on its face, the reader can tell that something must be added to the written contract to determine the parties’ intent, the ambiguity is patent; a latent ambiguity arises from undisclosed facts or uncertainty of the written instrument. .. . However, the initial determination of the existence of an ambiguity rests with the court and if ambiguity exists, then parol evidence is admissible and the meaning of the term becomes a question for the factfinder.
256 Ark.at 622 (citations omitted). The court held that the contract was unambiguous; that it provided a definite amount for supervision; and that the parol evidence rule would not allow oral evidence to change the written contract. The court said: “Had the appellee’s president and owner intended, as he now contends was their verbal understanding, that his salary should be in addition to the $20,000 for supervision, the written contract could easily have so reflected.”
A similar situation exists in the present case. Here, we think the term “office space” is clear and unambiguous; therefore, it is our duty to construe the written agreement in this case “according to the plain meaning of the language employed.” The written agreement provides that SLGFA wishes to engage Barnes, Quinn as its exclusive agent “to assist SLGFA in locating office space.” This is the assignment that Barnes, Quinn accepted, and the truth of the matter is that Barnes, Quinn negotiated a five-year lease by SLGFA of office space in a building that Barnes, Quinn managed, which was located within two blocks of SLGFA’s existing offices, and the “Shack” property is simply a parking lot between the buildings.
Because the written agreement in this case was unambiguous, the testimony of Mr. Flake and Mr. Hathaway, which was somewhat corroborated by Mr. Carpenter, that a parking lot used in connection with office space is itself “office space” violated the parol evidence rule. To allow such testimony presents the same problem addressed in Arkansas Rock & Gravel Company v. Chris-T-Emulsion Company, 259 Ark. 807, 536 S.W.2d 724 (1976), where the court said:
The trouble is, this argument runs squarely into the parol evidence rule. That is a rule of substantive law, which prevents a party from proving a prior or contemporaneous oral agreement that contradicts the written contract. Hoffman v. Late, 222 Ark. 395, 260 S.W.2d 446 (1953). It is true that when the language of a contract is ambiguous, proof of oral negotiations is admissible to show that the language was intended to have “any particular meaning that the words will reasonably bear.” Kerr v. Walker, 229 Ark. 1054, 321 S.W.2d 220 (1959). But the rule does not allow a party to prove by oral testimony that clear and unambiguous words were subjectively intended to have a meaning not fairly attributable to them. The remedy in that situation is a suit for reformation of the contract. Restatement, Contracts, § 230 (1932).
259 Ark. at 810. So, we think the opinion testimony that a parking lot used in connection with office space is itself office space should not have been considered by the trial judge under his ruling on appellant’s motion in limine and under his ruling which granted appellant’s counsel a continuing objection to questions which might violate the parol evidence rule.
While the trial judge did not make an express finding on the issue, he apparently thought the term “office space” was ambiguous. However, to give effect to the testimony that a parking lot used in connection with office space is itself office space is wrong for another reason in addition to the violation of the parol evidence rule. That reason is demonstrated by the case of Kerr v. Walker, 229 Ark. 1054, 321 S.W.2d 220 (1959), where the Arkansas Supreme Court explained:
It is true that prior negotiations between the parties are admissible to show that ambiguous language in the contract was intended to have any particular meaning that the words will reasonably bear, or, if that particular meaning cannot be assigned to the language, to show a mutual mistake that requires a reformation. . . . But such testimony must relate to an understanding that was common to both parties; it is not permissible to show the uncommuni-cated subjective interpretation that one party or the other placed upon the language of the agreement.
229 Ark. at 1057 (citations omitted). In the present case, we do not believe the evidence shows that SLGFA understood or agreed that a parking lot used in connection with office space was itself office space.
The appellee, however, relies upon the evidence that Mr. Flake was asked to execute an addendum to the original contract which would provide that the original agreement was not intended to create an agency agreement for any real estate purchase by SLGFA, or any office space it might undertake to build, during or subsequent to the expiration of the original agreement. Appellee argues that this shows that SLGFA “acknowledged that the ‘Shack’ property, whether used as a parking lot for offices or as a building site, fell under the contract.” There are two problems with that argument. First, it does not negate the application of the parol evidence rule. In Hoffman v. Late, 222 Ark. 395, 260 S.W.2d 446 (1953), the court pointed out that “the practical justification for the rule lies in the stability that it gives to written contracts; for otherwise either party might avoid his obligation by testifying that a contemporaneous oral agreement released him from the duties that he had simultaneously assumed in writing.” The Hoffman case was relied upon by the court in the C & A Construction Company case, supra, in pointing out that verbal evidence “cannot” alter the terms of an unambiguous written agreement.
And in the second place, we do not agree that the attempt to get the appellee to execute the addendum to the original contract “acknowledged” that the purchase of the “Shack” property “fell under” the original contract. The addendum was drawn and presented to Barnes, Quinn after Mr. Nichoalds of SLGFA learned that Mr. Ball of Barnes, Quinn said they would expect a commission if SLGFA purchased the “Shack” property directly from Claude Carpenter. Also, there was evidence that SLGFA asked Carpenter to pay the fee to Barnes, Quinn, but again, this was after SLGFA representatives learned that Barnes, Quinn representatives were going to insist that it would be entitled to a commission if SLGFA purchased the “Shack” property directly. We believe that a clear preponderance of the evidence shows that both of these incidents were simply attempts to avoid a problem about a commission in the event SLGFA purchased the “Shack” property.
Moreover, we do not agree with the appellee’s view of the effect of statements or inferences, supposedly made by representatives of the appellant, that the “Shack” property was being purchased for expansion or remodeling of SLGFA’s existing office facilities. To hold that this evidence shows that the “Shack” property was “office space” would not only violate the parol evidence rule, but would also be clearly erroneous. SLGFA had a written agreement which clearly stated that any fee due Barnes, Quinn would be paid by the owner of any building or property that Barnes, Quinn located and SLGFA purchased for “office space.” We do not believe this evidence shows that the “Shack” property purchased by SLGFA in the summer of 1988, which it made into a parking lot by the expenditure of approximately $30,000.00, and which was being used as a parking lot at the time this case was tried in the fall of 1989, was purchased for “office space” as that term was used in the agreement of the parties.
Reversed and dismissed.
Danielson, J., agrees.
Cooper, J., concurs. | [
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James R. Cooper, Judge.
The appellant in this civil case is a home improvement company incorporated in Arkansas. The appellant retained the services of the appellee, a South Carolina attorney, for the purpose of collecting money from a South Carolina customer. There was a dispute as to the fee agreement between the appellant and the appellee and, on June 20, 1988, a South Carolina court entered a default judgment against the appellant in the amount of $2,278.10 plus interest. The appellee subsequently sought registration of the foreign judgment in Arkansas; the appellant objected, raising an affirmative defense and attacking the judgment for want of jurisdiction. At the registration hearing the appellee moved for summary judgment and the trial court granted the motion. From that decision, comes this appeal.
On appeal the appellant advances two points: first, that there was not proper service of process on the appellant pursuant to the laws of South Carolina; and second, that the trial court erred in granting the appellee’s motion for summary judgment. We* disagree, and we affirm.
As to the appellant’s argument that South Carolina was without jurisdiction, we note that jurisdiction is a permissible ground for attacking a foreign judgment and is therefore properly raised in a registration hearing. See Dolin v. Dolin, 9 Ark. App. 329, 659 S.W.2d 954 (1983). The appellant contends that South Carolina failed to obtain personal jurisdiction over it because the South Carolina Secretary of State, acting as the appellant’s agent for service of process, failed to strictly comply with a South Carolina service of process statute which provided: “proof of service shall be by affidavit of compliance filed, together with copy of process, with the clerk of the court in which the action or proceeding is pending. There shall be filed with the affidavit of compliance, the return receipt signed by such foreign corporation or other proof of delivery. . . .” S.C. Code Ann. § 15-9-240(b)(2) (1981). The appellant cites Bi-State Energy, Inc. v. Tidewater Compression, Inc., 19 Ark. App. 148, 718 S.W.2d 117 (1986), in support of its argument that South Carolina must strictly comply with the statute. We think this case is inapplicable because Tidewater involved jurisdiction in Texas courts and cited Texas case law which required Texas courts to strictly comply with its statutes dealing with service on foreign corporations. In the case before us, South Carolina law is applicable and the appellant cites no South Carolina authority to support its contention that South Carolina law requires strict compliance with its statutes dealing with service on a foreign corporation or that substantial compliance is insufficient for valid service. Our review of applicable South Carolina statutes, rules of procedure, and case law shows that South Carolina Rule of Civil Procedure 4(g) provides that failure to make proof of service does not affect the validity of the service. This rule also provides that “[i]f service was by mail, the person serving process, shall show in his proof of service the date and place of mailing, and attach a copy of the return receipt. . . showing whether the mailing was accepted, refused or otherwise returned.” The South Carolina Court of Appeals cited this statute in Beckham v. Durant, 387 S.E.2d 701 (S.C. App. 1989), in which the court, addressing an appellant’s argument that failure to file proof of service within a ten day period, as provided by Rule 5(d) S.C.R.C.P., nullifies the service or extends the period of time for a defendant to answer. The court noted that “Rule 4(g) S.C.R.C.P., specifically states, ‘Failure to make proof of service does not affect the validity of the service.’ Thus, failure to make proof of service within a ten day period of service, likewise, would not affect the validity of service.” We think that this case provides insight into South Carolina’s view of proof of service requirements.
The record before us shows that a letter from the South Carolina Secretary of State dated May 14, 1988, addressed to the appellant, reciting the summons and complaint were enclosed, and sent restricted delivery, was filed with the Williamsburg County, South Carolina Court on September 14, 198 8. In addition, a letter from the Secretary of State, dated May 2, 1988, addressed to the appellee and enclosing the signed returned receipt, dated May 17, 1988, was filed in the Williamsburg County Court on June 6, 1988. We think that the Arkansas chancellor could find that these two letters, filed along with the signed return receipt, constituted the information required for adequate proof of service under South Carolina law. Furthermore, we think that the chancellor could find in light oí Beckham, supra, that despite the Secretary of State’s failure to file an affidavit of compliance, there had been substantial compliance with the statute giving South Carolina jurisdiction over the appellant. The appellant was afforded the opportunity to offer evidence to support his allegation of lack of jurisdiction, and since the chancellor found jurisdiction with the South Carolina Court, and since there is no dispute that the judgment was regular on its face and duly authenticated, we find that the judgment was entitled to registration. Springwind Farms, Inc. v. McLane Co., 21 Ark. App. 257, 731 S.W.2d 784 (1987).
The appellant also asserts that the chancellor erred in granting summary judgment because there was an issue of material fact, raised by the assertion of accord and satisfaction as an affirmative defense. In support of this assertion the appellant cites Ark. Code Ann. § 16-66-608 (1987) which provides:
Any defense, setoff, counterclaim, or cross-complaint, which under the law of this state may be asserted by the defendant in an action on foreign judgment, may be presented by appropriate pleadings and the issues raised thereby shall be tried and determined as in other civil actions.
The appellant maintains that pursuant to this statute the issue of accord and satisfaction must be considered. The record shows a check from the appellant to the appellee in the amount of $ 150.00 dated October 6, 1987. It is clear from the complaint filed in South Carolina that the South Carolina court and the appellee credited the appellant with this payment. Furthermore, the June 6, 1988, judgment was obviously entered subsequent to this payment. Under these circumstances, the appellant’s assertion of accord and satisfaction is merely an attempt to relitigate an issue already determined by the South Carolina court. We have held that Ark. Code Ann. § 16-66-608 (1987) does not permit the relitigation of any issue finally determined by the foreign court because those matters are foreclosed. Dolin, supra. Therefore, we find that the issue of accord and satisfaction was foreclosed and the trial judge did not err in granting summary judgment.
Affirmed.
Danielson and Jennings, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Ida Mae Hardin appeals from an order of the Arkansas Workers’ Compensation Commission denying her claim for benefits. We find sufficient merit in one of appellant’s points for appeal to warrant reversal and remand.
It is undisputed that, on December 24, 1987, appellant slipped and fell in the course and scope of her employment with Southern Compress Company, appellee. On January 12, 1988, appellant underwent surgery for a fractured right ankle. Appellee paid benefits for those medical expenses incurred by appellant through January 11,1988, but controverted appellant’s claim for temporary total and permanent partial disability benefits, along with medical benefits, incurred as a result of her fractured right ankle. Affirming and adopting the findings of fact and conclusions of law made by the administrative law judge, the Commission denied benefits.
Appellant first contends that the Commission erred in not making proper findings of fact. We agree. On appellate review of workers’ compensation cases, the extent of our inquiry is limited to a determination of whether the findings of the Commission are supported by substantial evidence. Even where a preponderance of the evidence might indicate a different result, we will affirm if reasonable minds could reach the Commission’s conclusion. College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988); Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989).
Absent necessary findings of fact, this court cannot make a meaningful review of the Commission’s decision. When the Commission fails to make specific findings upon which it relies to support its decision, reversal and remand of the case is appropriate. Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986).
Here, the Commission stated:
[W]e find that the claimant has failed to sustain her burden of proof. Specifically, we find from a preponderance of the evidence that the Findings of Fact made by the Administrative Law Judge are correct and they are, therefore, adopted by the Full Commission.
Therefore, we affirm and adopt the September 27, 1989, decision of the Administrative Law Judge, including all findings and conclusions therein, as the decision of the Full Commission on appeal. This claim is respectfully denied and dismissed.
Although the Commission may specifically adopt the findings of fact made by the administrative law judge, see ITT/Higbie Mfg. v. Gilliam, 34 Ark. App. 154, 807 S.W.2d 44 (1991), the administrative law judge in this case failed to make the findings necessary for us to review whether there is substantial evidence to support the decision of the Commission. The administrative law judge merely summarized the testimony of the witnesses; he did not make findings of fact based on that testimony. As we are unable to determine from the record the factual basis upon which the Commission denied appellant’s claim, we cannot ascertain whether the Commission correctly applied the law and denied benefits. See Green House, Inc. v. Arkansas Alcoholic Beverage Control Div., 29 Ark. App. 229, 780 S.W.2d 347 (1989). We therefore remand the case for the Commission to make the specific findings of fact upon which it relied in making its decision.
Reversed and remanded.
Mayfield and Rogers, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant Silvicraft, Inc. appeals a decision of the Lincoln County Chancery Court refusing to hold that deeds from appellee First State Bank of Gould to appellee Blagg, and from Blagg to appellee Southeast Timber Co., are void.
The evidence showed that Kenneth Berzent Blagg and his wife Mabel Sue (Blagg) declared Chapter 12 bankruptcy. On November 16,1988, as part of the bankruptcy settlement, Blagg executed a warranty deed to 60.0 acres of property to First State Bank of Gould (bank) and retained a thirty-day right of first refusal (option to repurchase) at a price equal to any offer from a third party to the bank. On February 15,1989, the bank offered the property for sale at auction and appellant Silvicraft, a timber company, was the high bidder, offering $121,000.00 for the 600 acres. The bank and Silvicraft executed a contract of sale subject to the right of Blagg to exercise his option to repurchase by the stated date of March 21, 1989.
On March 20, 1989, Blagg executed a contract to sell his option to repurchase to Southeast Timber Company, Inc. (Southeast). By this contract Southeast guaranteed to cut a minimum of $97,000.00 worth of timber from the property and agreed that when it had completed harvesting the timber Blagg would have an option to repurchase the property from Southeast. However, the bank refused to deed the property directly to Southeast because that would not comply with the bankruptcy agreement. Blagg then exercised his option to repurchase from the bank and on March 21, 1989, the bank deeded the property to Blagg for $121,000.00, and Blagg immediately executed a warranty deed to Southeast.
Silvicraft then filed suit against Southeast and the bank seeking a temporary restraining order to prevent Southeast from harvesting any timber from the property; to set aside the conveyance from the bank to Blagg and the conveyance from Blagg to Southeast and to have the deeds declared null and void; and for an order requiring the bank to specifically perform its contract to convey the property to Silvicraft at the price it bid at the auction. The Blaggs, necessary parties to the suit, were joined in a subsequent amended complaint when they were released from the protection of the bankruptcy court. The trial court denied the temporary restraining order and subsequently refused to set aside the conveyance from the bank to Blagg or the conveyance from Blagg to Southeast or to require the bank to convey the property to the appellant.
On appeal, appellant contends that in order for Blagg’s option to repurchase from the bank to be valid it must not violate the rule against perpetuities; that to avoid violating the rule against perpetuities, the option, which has no expiration date, would have to be personal to Blagg, thereby expiring at his death; that therefore the option, if personal to Blagg, could not be sold by him, and consequently, the contract to sell the option to Southeast was void.
The rule against perpetuities prohibits the creation of future interest or estates which by possibility may not become vested within the life or lives in being, plus 21 years, from the time of the creation of the interest. This is a rule of property in Arkansas. Hendriksen v. Cubage, 225 Ark. 1049, 1055, 288 S.W.2d 608 (1956). In Roemhildv. Jones, 239 F.2d 492 (8th Cir. 1957), it was held that an option to repurchase which contained no language extending the option beyond the specific grantor and grantee was personal and did not violate the rule against perpetuities. 239 F.2d at 496. In Broach v. City of Hampton, 283 Ark. 496, 677 S.W.2d 851 (1984), the Arkansas Supreme Court held that where there was no language in a deed which extended a repurchase option to the heirs or assigns of the holder of the option, or did not otherwise indicate the option extended beyond the life of the holder, the rule against perpetuities was not violated. 283 Ark. at 499. See also Estate of Johnson v. Carr, 286 Ark. 369, 691 S.W.2d 161 (1985).
In the case at bar, there is nothing to suggest that the Blagg option to repurchase from the bank extended to the Blagg heirs or assigns, or that it was binding beyond the lives of the Blaggs. Paragraph 4.09 of the Second Amended and Substituted Debtors Chapter 12 Plan provided in pertinent part:
First State Bank of Gould, Arkansas (Class IX). Debtors and secured creditor have also agreed that Debtors will deed this property to this Class IX fully secured creditor for a credit of $200,000 which will pay in full Note No. 19692 .... As part of this deedback arrangement, Debtors will have a right of first refusal in connection with the ultimate disposition of Tract VI. Debtors shall have thirty (30) days after actual notice of the terms of said offer is communicated to them to match any offer of purchase which this secured creditor voted to accept.
Clearly, this option was personal to Blagg and did not violate the rule against perpetuities. Thus appellant is correct in its reasoning that Blagg could not sell his option to repurchase from the bank to appellee Southeast.
Appellant then argues that because Southeast furnished the money which Blagg used to exercise his option to repurchase from the bank, and because Blagg then deeded the property to Southeast, both deeds are void and the bank should be ordered to specifically perform its real estate contract with the appellant. As part of this argument, the appellant contends that the trial court violated the parol evidence rule by allowing Blagg and certain representatives of Southeast to testify that their intent was to transfer only the timber rights to Southeast and for Blagg to retain the land.
Appellant points out that the parol evidence rule excludes testimony regarding prior or contemporaneous agreements which would vary the terms of the express written agreement of the parties, City of Crossett v. Riles, 261 Ark. 522, 549 S.W.2d 800 (1977); Prudential Insurance Company of America v. Stratton, 14 Ark. App. 145, 685 S.W.2d 818 (1985); Sterling v. Landis, 9 Ark. App. 290, 658 S.W.2d 429 (1983); and argues that, although the court correctly ruled that the agreement by Blagg to sell his option to repurchase to Southeast was void, the court erred in allowing testimony that the warranty deed from Blagg to Southeast was actually a timber deed whereby Blagg retained ownership of the land.
However, we do not think this testimony violated the parol evidence rule as far as the appellant was concerned because it was a stranger to the agreement. This is clearly the holding in Sterling v. Landis, supra, and this is the holding in the following cases cited by the appellees: American Bank v. Wegener, 776 S.W.2d 922 (Mo. App. 1989) (rule excluding extrinsic evidence sought to be introduced for purpose of affecting a written instrument is applied only where the controversy is between the parties to the instrument or their privies); Denha v. Jacob, 446 N.W.2d 303 (Mich. App. 1989) (parol evidence rule cannot be invoked either by or against a stranger to the contract); Tropicana Products, Inc. v. Shirley, 530 So.2d 493 (Fla. App. 1988) (one not a party to the agreement cannot argue that parol evidence to interpret the agreement is incompetent); Green v. Grant, 635 P.2d 236 (Colo. App. 1981) (parol evidence can be used to vary a contract when the litigation is between a party to the contract and a stranger thereto).
Moreover, we think the testimony complained of was irrelevant. When Blagg exercised his option with the bank and repurchased the property, appellant lost any interest it had in the property. Even if Blagg’s agreement to sell or transfer the option to repurchase the property was void, the record contains a warranty deed from the bank to Blagg and a warranty deed from Blagg to Southeast. Blagg’s Chapter 12 bankruptcy plan did not require Blagg to exercise the option to repurchase from the bank in any particular manner. There was no requirement with regard to Blagg’s method of financing his repurchase. There was no prohibition concerning to whom Blagg could sell the property after he had exercised his option to repurchase it. Apparently, the appellant wants us to hold that because Blagg first contracted to sell his option to Southeast, and because Southeast arranged financing which enabled Blagg to exercise his option to repurchase, Blagg’s sale to Southeast was really a sale of Blagg’s option to repurchase and therefore void. The trial judge did not make such a finding and we do not think his decision was clearly against the preponderance of the evidence.
It is true that the trial court held that “the parties’ testimony made clear that... the intention of the parties was that Mr. Blagg would have the land and Southeast would have the timber.” But if this finding was based upon inadmissible parol evidence, there is still ample evidence in the record that Southeast got a deed from Blagg which conveyed legal title to the land that Blagg got from the bank by virtue of Blagg’s option to repurchase. We will sustain the trial judge’s decision if it is right, even though he gives the wrong reason. Broach v. City of Hampton, 283 Ark. 496, 677 S.W.2d 851 (1984); Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979); Morgan v. Downs, 245 Ark. 328, 432 S.W.2d 454 (1968).
Appellant also argues that the trial court erred in failing to exclude hearsay evidence. Most of the evidence appellant regards as hearsay came in at some point without objection. Primarily, the appellant complains that the trial judge was mistaken in holding that all statements by all parties are admissible. Appellant points to Ark. R. Evid. 802(d)(2) and says that admissions by a party opponent are not hearsay but that the statement must first be made by a party-opponent and then be offered against the party, not on his behalf. Although appellant is correct in theory, we do not see any real way to single out the hearsay statements that were objected to that are not part of — or in response to — statements that are not hearsay. Furthermore, we do not think appellant was prejudiced by any hearsay evidence heard by the trial judge in this case. We do not reverse for error that is not prejudicial. Hibbs v. City of Jacksonville, 24 Ark. App. 111, 749 S.W.2d 350 (1989).
Affirmed.
Danielson, J., not participating. | [
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Melvin Mayfield, Judge.
On May 21, 1987, appellant pleaded guilty to a charge of burglary and imposition of sentence was withheld for a period of five years conditioned upon compliance with certain conditions, one of which was to refrain from violating any law punishable by imprisonment. On October 18, 1989, a petition to revoke was filed which alleged appellant had violated the terms of his suspended imposition of sentence by possessing a controlled substance (crack cocaine), and on that same date an information was filed charging appellant with violating the statute prohibiting possession of such a substance.
On January 16, 1990, the court, by agreement, heard the revocation petition and the possession charge together using the same evidence for each case. At the conclusion of the hearing, the court revoked the suspended imposition of sentence and sentenced appellant to six years in the Arkansas Department of Correction. Appellant was also found guilty of possession of a controlled substance and was sentenced to three years on that conviction, to be served consecutively to the six-year sentence.
On appeal, appellant argues that the trial court erred in its failure to suppress as evidence the crack cocaine contained in a matchbox which was found in the appellant’s jacket pocket as a result of a “pat down” made by a policeman. It is appellant’s contention that this evidence was seized as a result of an illegal search. Specifically, it is contended that the officer did not have grounds to form a “reasonable suspicion” that appellant was involved in criminal activity; therefore, the officer’s stop of appellant was unlawful and the cocaine should have been suppressed as evidence.
We first note that the exclusionary rule is generally not applicable to revocation proceedings. Dabney v. State, 278 Ark. 375, 646 S.W.2d 4 (1983); Queen v. State, 271 Ark. 929, 612 S.W.2d 95 (1981); McGhee v. State, 25 Ark. App. 132, 752 S.W.2d 303 (1988). Based upon the authority of these cases, we think the trial court’s revocation should be affirmed under the circumstances of the instant case. However, we do not think the trial court erred in refusing to suppress the cocaine as evidence in this case, therefore, we also affirm the conviction for possession.
At trial, Mark Johnson testified that he had been working for fifteen months as a patrol officer for the North Little Rock Police Department. He said he first came in contact with the appellant on May 11, 1989, at approximately 9:30 to 9:45 p.m. while making an extra patrol through the Dixie Addition. Officer Johnson testified that this is basically a residential area, and “we get more calls there than other places in the city.” He also testified that at roll call at the start of his shift, it is pointed out where extra patrol might be needed and “things to be on the lookout for,” and in May of 1989, the police department was getting complaints, several times a week, about drug trafficking in the Dixie Addition, and at roll call these complaints were talked about.
On the night of May 11, Officer Johnson had been through the Dixie Addition one time and several male subjects ran from him. Because of that, two more units were called, and when they went back through the area, the appellant and three or four other males were standing in front of the abandoned grocery store located in the 800 block of E Street/ The officers had received information about drug trafficking at the corner of Ninth and E Streets. So, the officers approached the men in front of the abandoned building to see what they were doing and asked them for identification. While the officers were approaching, one of the men walked away. The officers then patted down the other individuals to check for weapons. Johnson said this was for the officers’ own protection because he had on several occasions arrested people in this area who had guns on them.
Johnson patted down the appellant and felt something hard in his right jacket pocket. Johnson then reached into the pocket and found two matchboxes. One was empty and the other contained three rocks of what the officer thought was crack cocaine, so he arrested the appellant. It was stipulated that a chemist would testify that the substance in the box tested positive for cocaine.
The appellant correctly argues that stopping and detaining a person is controlled by Ark. R. Crim. P. 3.1 which provides in pertinent part:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lav/fulness of his conduct.
Also, as appellant points out, the meaning of the term “reasonably suspects” as used in Ark. R. Crim. P. 3.1, supra, is defined in Ark. R. Crim. P. 2.1 as “a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” The appellant also recognizes that we are dealing with an area of the law which has been greatly influenced by the United States Supreme Court decision of Terry v. Ohio, 392 U.S. 1 (1968). In fact, the Commentary following Ark. R. Crim. P. 2.1 points out that Rules 2 and 3 of our Rules of Criminal Procedure are characteristic of those generated by the Terry v. Ohio decision. These rules were discussed at length by the Arkansas Supreme Court in Hill v. State, 275 Ark. 71, 80, 628 S.W.2d 284 (1982), cert. denied, 459 U.S. 882 (1982), where it was said:
The courts have used various terms to describe how much cause or suspicion is necessary or reasonable in order to stop a person or vehicle. The common thread which runs through the decisions makes it clear that the justification for the investigative stops depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity. U.S. v. Cortez, 449 U.S. 411 (1981); Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587 (1981); Terry v. Ohio, 392 U.S. 1 (1968).
The appellant contends, however, that in the instant case “Officer Johnson’s stop failed the ‘reasonable suspicion’ test as there were not specific, particularized, and articulable reasons indicating involvement by the appellant in criminal activity.” Since we do not agree, rather than attempting to compare the facts in various cases with the facts in this case, we will discuss the general principles we think the cases on this point teach.
To start with, we point out that in reviewing a trial judge’s decision on a motion to suppress, this court makes an independent determination based upon the totality of the circumstances but will reverse the trial court’s ruling only if that ruling was clearly against the preponderance of the evidence. Campbell v. State, 294 Ark. 639, 642, 746 S.W.2d 37 (1988); Dees v. State, 30 Ark. App. 124, 128, 783 S.W.2d 372 (1990).
The United States Supreme Court has said that the Fourth Amendment bars only unreasonable searches and seizures and in determining reasonableness, “we have balanced the intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Maryland v. Buie, 494 U.S _, 108 L.Ed. 2d 276, 284, 110 S.Ct. 1093, 1096 (1990). In United States v. Cortez, 449 U.S. 411, 417 (1981), the Court said that terms like “articulable reasons” are not self-defining and “fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account.” The Court also said:
The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person.
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behaviour; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
449 U.S. at 418. And in Tillman v. State, 275 Ark. 275, 280, 630 S.W.2d 5 (1982), the Arkansas Supreme Court stated:
In United States v. Brignoni-Ponce, 422 U.S. 873 (1975), the court dealt with the problem of the United States Border Patrol’s authority to stop automobiles near the Mexican border. Referring to Terry v. Ohio, the court said:
The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. (Emphasis supplied.)
Although the appellant in the instant case primarily contends that the police officer’s stop was unlawful, the appellant does state that the officer’s search was “far more extensive” than was reasonably necessary. Ark. R. Crim. P. 3.4 provides that when a law enforcement officer has detained a person under Ark. R. Crim. P. 3.1 whom the officer “reasonably suspects” is armed and presently dangerous to the officer or others, the officer may “search the outer clothing of such person” and may seize any “weapon or other dangerous thing” which may be used against the officer or others. The rule also provides that “in no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.” In Hill v. State, supra, the Arkansas Supreme Court quoted with approval the following from Terry v. Ohio:
We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.
275 Ark. at 81. In United States v. Alvarez, 899 F.2d 833, 839 (9th Cir. 1990), the court said:
The decision to frisk Alvarez for weapons was similarly justified. “Police are entitled to take steps to assure that the person stopped is not armed.” Greene, 783 F.2d at 1368. “The purpose of the Terry frisk is ‘to allow the officer to pursue his investigation without fear of violence.’ ” United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982).
In United States v. Laing, 889 F.2d 281 (D.C. Cir. 1989), the court made the following statements in discussing the stop and weapon-search permissible in a Terry v. Ohio situation:
The amount of force used to carry out the stop and search must be reasonable, but may include using handcuffs or forcing the detainee to lie down to prevent flight, United States v. Taylor, 716 F.2d 701, 708-09 (9th Cir. 1983) or drawing guns where law officers reasonably believe they are necessary for their protection. E.g., United States v. Merritt, 695 F.2d 1263, 1272-74 (10th Cir. 1982) cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed. 2d 286 (1983). Factors that may justify an investigative stop, a search for weapons, or the escalated use of force include the time of day, the “high-crime” nature of the area, an informant’s tips that persons might be armed, furtive hand movements, flight or attempted flight by the person sought to be detained, and a pressing need for immediate action. Adams, 407 U.S. at 147-48, 92 S.Ct. at 1924; White, 648 F.2d at 39-40, 43.
889 F.2d at 285-86.
Applying our Rules of Criminal Procedure and the general principles of the above cases to the evidence in this case, we believe the trial court could find that Officer Johnson reasonably suspected that the men in front of the abandoned building were engaging in drug use or traffic. Johnson’s testimony dis closes specific, particularized, and articulable reasons for his suspicion. This is especially true when we consider that Johnson had fifteen months’ experience as a patrol officer, much of which was in the Dixie Addition, and that he had information and reports from the police department which, as the Court said in United States v. Cortez, supra, should be weighed “not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” We also believe the trial court could find from the evidence in this case that under our Rules of Criminal Procedure and the principles of the above cases, Officer Johnson, in the Dixie Addition after dark, performing the job he was assigned to do, was justified in patting the appellant down to determine whether he was carrying a weapon. And when we consider that the Fourth Amendment, by which the law in this case is guided, only bars unreasonable searches and seizures, we think it clear that promotion of the legitimate governmental interests in preventing crime outweighs any intrusion on the appellant’s Fourth Amendment rights in this case. Maryland v. Buie, supra; Miller v. State, 21 Ark. App. 10, 727 S.W.2d 393 (1987). The fact that the conduct observed by the officer is consistent with innocence will not preclude a legitimate stop. See United States v. Price, 599 Fed. 2d 494, 502 (2nd Cir. 1979) (“It must be rare indeed that an officer observes behavior consistent only with guilt and incapable of innocent interpretation.”). In the instant case, we cannot say the trial judge’s decision was clearly against the preponderance of the evidence.
Although our inquiry might end here, we briefly discuss one other point. We have in our conference discussed whether Officer Johnson legally opened the matchbox found in appellant’s pocket. While it seems clear that an ordinary gun or weapon would not fit into a matchbox, this does not mean that the officer did not have the right to open the matchbox. Under Ark. R. Crim. P. 3.4, he was authorized to seize “any weapon or other dangerous thing” which “may” be used against the officer. The matchbox was not part of the record filed in this court; therefore, we do not know its size, but even a “penny” matchbox could hold a razor blade. Moreover, it occurs to us that the trial court would be in a better position than we are to judge whether a “dangerous thing” could fit into the matchbox. One court has upheld the taking of a shotgun shell from a defendant’s pocket because it could be used as a weapon as it could be detonated by any sharp object. People v. Atmore, 13 Cal. App. 3d 244, 91 Cal. Rptr. 311 (1970). And in Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980), our supreme court held that a controlled substance found in a bottle which was in a sack in the appellant’s pant’s pocket was admissible as evidence when the bottle was found during a Terry v. Ohio pat-down search. The court also cited as authority a Kansas case “where marijuana concealed in the defendant’s socks was admitted in evidence because weapons are often concealed in a defendant’s socks.”
However, even if the officer could not open the matchbox because he could not reasonably suspect it contained “any weapon or other dangerous thing,” he could certainly know from its sound and feel that it did not contain matches. And it surely must be true that, under all the circumstances shown by the evidence in this case, the officer would have reasonable cause to believe the box contained a controlled substance of some type. An officer may arrest a person without a warrant if he has reasonable cause to believe the person has committed a felony. Johnson v. State, 21 Ark. App. 211, 730 S.W.2d 517 (1987). See also Ark. R. Crim. P. 4.1(a)(i).
Reasonable cause exists where facts and circumstances, within the arresting officer’s knowledge and of which he has reasonably trustworthy information, are sufficient within themselves to warrant a man of reasonable caution to believe that an offense has been committed by the person to be arrested.
Johnson, 21 Ark. App. at 213. With the matchbox lawfully in his hand and with reasonable cause to believe it contained a controlled substance, Officer Johnson could arrest the appellant and, as incident to the arrest, he could seize the contraband in the matchbox. Id. at 214. In Horton v. State, 262 Ark. 211, 555 S.W.2d 226 (1977), the appellant was arrested upon probable cause based upon the information of a reliable informer that appellant had in his possession a matchbox containing 20 papers of heroin. The box was retrieved by the arresting officers, and they opened the box and removed the heroin. Both the arrest and seizure were held valid. See also Holmes v. State, 262 Ark. 683, 561 S.W.2d 56 (1978).
Affirmed.
Cracraft, C. J., Jennings and Rogers, JJ., concur in part and dissent in part. | [
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Terry Crabtree, Judge.
The appellant was charged with two counts of aggravated assault, but he was found guilty in a jury trial of the lesser-included offenses of first-degree assault for which he was sentenced to concurrent terms of thirty days in jail and fined $1,000. On appeal, he argues that the trial court erred in giving self-defense instructions for the jury to consider with regard to aggravated assault but not to any of the lesser-included offenses. We find no reversible error and affirm.
The charges levied against appellant arose from an incident that occurred on July 24, 2001, in which appellant admittedly brandished a gun in the presence of victims Lonnie Massey and Sheaquonea Hinton. Mr. Massey, a Kirby vacuum-cleaner salesman, testified that he and Ms. Hinton, a trainee, parked in front of appellant’s house, which he approached while Ms. Hinton remained in the car. He said that he knocked and appellant answered the door but that appellant was not receptive to the offer of having his carpet cleaned for free and that appellant became upset and used profanity during the encounter. Massey said that he told appellant that he did not have to be rude, and he began walking back to the car. He said that appellant followed and threw something at him and that, as he was reaching for the door handle of the car, appellant nudged him in the chest. Appellant then got between Massey and the car, angrily telling Massey to get off his land. Massey said that he told appellant that he would leave if appellant would get out of his way and that appellant responded, “Well, I’ve got something that will take care of you.” Massey said that he got in the car and that appellant kicked one of the doors, leaving a dent. He drove down the street, which was a dead end, and turned around. Massey related that, as he was driving back past appellant’s house, he saw appellant coming quickly across the yard with a gun in his hand. He said that appellant cocked it and pointed it in the direction of the car. Massey then pushed Ms. Hinton’s head down, ducked, and drove to a nearby church parking lot where he called the police. He said that Ms. Hinton quit a few days later. There was testimony that her whereabouts were unknown and that officers had not been able to serve her with a subpoena for trial.
Appellant’s version of events was markedly different. He testified that he heard someone approaching the house and that he went to the front door where he saw Massey with his hand on the door handle. Appellant said that Massey opened the door and let himself into the house. Appellant said that he told Massey that he was not interested in having his carpet cleaned. He said that he thought Massey had left but that Massey returned a second time. He said that he told Massey again that he was not interested. Appellant said that Massey came back a third time several minutes later and let himself inside the house again. Appellant said that he had been polite the first time Massey came inside but that he became increasingly angry the second and third times. Appellant said that he then forced Massey outside with his chest and told Massey to get off of his property. He said that, as Massey walked away, Massey stopped, turned, grabbed his crotch and said, “Fuck you.” Appellant said that this made him even madder and that he began yelling at Massey to leave. He said that Massey walked to the car but that he stopped and turned towards him with his fists up, as if he were ready to fight. He said that Massey then put his right hand in his pocket. Appellant said that he then put his own hand in his rear pocket and told Massey that his hand had better be empty when he removed it from his pocket. He said that Massey fiddled around for a minute and then got in the car. He said that Massey then spun out and almost ran over him. He said that Massey then pulled into a neighbor’s driveway where he saw Massey “bending over doing something.” He said that Massey then pulled out of the driveway and started driving slowly down the street. Appellant said that he moved towards his truck where he kept a gun. He said that Massey then pulled into his yard and that Massey had his hands up and that he thought he saw a weapon. He said that he then retrieved his gun and stood behind the door of his truck. He said that Massey sat there for a few seconds and then left.
In discussing jury instructions, the trial court agreed that the jury was to be given instructions on the charged offense of aggravated assault, as well as the lesser-included offenses of first-, second-, and third-degree assault. The court also ruled that appellant was entitled to have the jury instructed on the defense of justification, and the court proposed to give AMCI 704 and 705 which, respectively, pertain to the use of force and deadly force in defense of persons. However, the court’s instructions applied these defenses only to the charge of aggravated assault. Appellant argued that the defenses should also apply to the lesser-included offenses, and by way of proffer, appellant asked that the instructions be redacted to delete the reference to “aggravated assault” so that the instructions would apply to all of the offenses. The trial court declined appellant’s request and gave the instructions that made justification a defense only to the offense of aggravated assault. Appellant contends that the trial court’s ruling was in error. We disagree.
It is well established that one requesting a jury instruction must prepare and submit to the court a correct instruction, and where he fails to do so, he is in no position to argue on appeal that the request should have been granted. Wood v. State, 20 Ark. App. 61, 724 S.W.2d 193 (1987). The appellant may not complain of the refusal of the trial court to give an instruction which is only partially correct, as it is his duty to submit a wholly correct instruction. Coleman v. State, 12 Ark. App. 214, 671 S.W.2d 221 (1984). The instructions appellant proposed were not wholly correct because justification cannot be interposed as a defense to the offenses of first- and second-degree assault.
A person is justified in using force or deadly force only if he “reasonably believes” that the situation necessitates the defensive force employed. Ark. Code Ann. §§ 5-2-606 and 5-2-607 (Repl. 1997). Both first-degree and second-degree assault are committed if the accused acts “recklessly.” Ark. Code Ann. §§ 5-13-205 and 5-13-206 (Repl. 1997). The defense of justification with its requirement of reasonableness is inconsistent with the element of recklessness found in these assault offenses. See Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000); Kendrick v. State, 6 Ark. App. 427, 644 S.W.2d 297 (1982); accord Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001). Thus, Arkansas Code Annotated section 5-2-614 (Repl. 1997) provides that justification is not available as a defense to an offense for which recklessness suffices to establish culpability. See Harshaw v. State, 71 Ark. App. 42, 25 S.W.3d 440 (2000), aff'd Harshaw v. State, supra. As is stated in the Original Commentary to § 5-2-614, formerly Ark. Stat. Ann. § 41-514:
Section 41-514 applies to situations in which force is recklessly or negligently employed. Under such circumstances the defense of justification cannot be successfully interposed in a prosecution for an offense established by proof of reckless or negligent conduct.
Therefore, appellant was not entitled to justification instructions with regard to first- and second-degree assault, and the trial court did not err iii refusing an instruction that would have made justification a defense to those offenses.
Affirmed.
Griffen and Vaught, JJ., agree. | [
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Andree Layton Roaf, Judge.
Marqueta Miller appeals the trial court’s grant of summary judgment in favor of the Kroger Company and Lisa Baker, a Kroger employee (Kroger). Miller had sued Kroger for malicious prosecution, outrage, and false imprisonment after she was acquitted in municipal court of a shoplifting charge arising from an incident at a Kroger store. On appeal, Miller argues that the trial court erred in granting summary judgment on all three causes of action, and that genuine issues of material fact exist with respect to each cause. We agree that the trial court erred in granting summary judgment with respect to the claim of malicious prosecution, and reverse and remand as to that count.
The evidence in this case was primarily in the form of deposition testimony and a transcript of Miller’s municipal court trial. The incident arose on September 25, 1999, when Miller was shopping at the Kroger store on Salem Road in Conway, Arkansas. After shopping and checking out, Miller admittedly left the store with three paperback books and a large magazine that she had not purchased. Miller claimed to have placed the items in her basket while shopping. Whether Miller placed the merchandise in or under her purse is in dispute. Miller testified that the items were under her purse in the child-seat portion of the shopping cart. She testified that the checker also placed bagged groceries in the seat, further obscuring the books, and that she in essence forgot about the items or did not realize that they had not been checked. Miller further claimed and provided a demonstration that the four books would not have fit inside her purse. Lisa Baker, the assistant manager at Kroger, testified that she observed Miller place the items inside her purse. Baker asked another employee to phone the police while she followed Miller and Jeremy Crabb, a clerk who assisted with Miller’s cart, outside. Baker further testified that she could see a portion of the magazine “sticking out” when Miller was at the checkout stand.
After Miller and Crabb left the store, Baker stopped Miller and asked about the books. Baker and Crabb testified that Miller removed the items from inside her purse and gave them to Baker. However, Miller testified that she retrieved the items from beneath the purse. The conversation that took place between the two women is also in dispute. Miller eventually voluntarily reentered the store with the understanding that she was to fill out some paperwork. When Baker asked Miller to climb some steps to an office in order to fill out the paperwork, Miller stated that she was unable to climb stairs due to a medical condition. Both Crabb and Miller testified that Baker offered to call an ambulance to assist Miller in climbing the stairs; however, Baker denied ever making this statement.
Officer Jon Cole soon arrived at the store and took Miller into custody. She was handcuffed in the upstairs office and made to walk down the stairs and out past the checkout area with her hands cuffed behind her back. Officer Cole testified in the municipal court proceedings that Miller’s purse was pretty full and that he “personally [didn’t] see how the items could fit inside the purse,” and advised Miller to take a picture of the purse. After being released from police custody several hours later, Miller returned home. She suffered a heart attack the following morning.
Miller was charged with shoplifting, or theft of property. At her trial in Conway Municipal Court, in which Officer Cole testified favorably in her defense, she was found not guilty. Miller then filed suit against Kroger for malicious prosecution, false imprisonment, and outrage. After discovery, the trial court granted summary judgment in favor of Kroger on the theory that probable cause existed as a matter of law because it was undisputed that Miller left the store with at least “partially concealed” merchandise and without permission, Miller voluntarily returned to the store to resolve the matter, and Kroger’s conduct did not rise to the level required to sustain a claim for outrage. This appeal followed.
It is well settled that summary judgment is regarded simply as one of the tools in a trial court’s efficiency arsenal; however, the granting of the motion is only approved when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admission on file is such that the nonmoving party is not entitled to a day in court, that is, when there is not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). Summary judgment is not proper “where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ.” Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (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. Id., citing Rowland v. Gastroenterology Assoc., P.A., 280 Ark. 278, 657 S.W.2d 536 (1983).
Miller first argues that the trial court erred in granting summary judgment on the count of malicious prosecution. In order to prevail in a claim of malicious prosecution, a plaintiff must prove the following elements: (1) a proceeding instituted by the defendants against plaintiff; (2) termination of the proceeding in favor of plaintiff; (3) absence of probable cause on the part of the defendants; (4) malice; and (5) damages. See South Ark. Petrol. Co. v. Shiesser, 343 Ark. 492, 36 S.W.3d 317 (2001).
The trial court found that Miller failed to establish the absence of probable cause. At the hearing and in its brief in support of summary judgment, Kroger contended that Miller’s malicious prosecution claim should fail because probable cause existed as a matter of law, based upon the shopkeeper presumption found in Ark. Code Ann. § 5-36-102(b) (Repl. 1993), which provides as follows:
The knowing concealment, upon his person or the person of another, of unpurchased goods or merchandise offered for sale by any store or other business establishment shall give rise to a presumption that the actor took the goods with the purpose of depriving the owner, or another person having interest therein.
Kroger further relied upon Kroger Co. v. Standard, 283 Ark. 44, 670 S.W.2d 803 (1984). In Standard, the supreme court reversed the plaintiffs judgment where Standard had knowingly concealed a ham in a sack, stapled it shut with a credit slip, and attempted to leave the store without paying for it. However, in Wal-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 681 S.W.2d 359 (1984), the supreme court, in affirming the trial court’s submission of the appellee’s claim for malicious prosecution to the jury, distinguished the case from Standard, stating:
The question the court is initially presented with is the issue of probable cause for the arrest and prosecution of the appellee. “The test for determining probable cause is an objective one based not upon the accused’s actual guilt, but upon the existence of facts or credible information that would induce a person of ordinary caution to believe the accused to be guilty.” Unless both the facts and the reasonable inferences to be deduced from those facts are undisputed, this issue is to be submitted to the jury.
The appellant, relying upon Kroger Co. v. Standard, supra, contends that the trial court erred as a matter of law in submitting the issues of malicious prosecution and false imprisonment to the jury. This reliance is not well founded. The Kroger Co. court found the appellant had the benefit of the shoplifting presumption, which arises with the knowing concealment of unpurchased items. Applying, in conjunction, this presumption, and the testimony of the appellee, the court held that there was not substantial evidence that Kroger failed to exercise the ordinary caution exhibited by the reasonably prudent merchant.
Assistant manager Caudle testified he was able to see the pen at all times during the period he was observing the appellee. The shoplifting presumption did not arise here and thus, the appellee did not have to overcome the burden imposed by Rule 301. The appellant did have probable cause for the initial stop of the appel-lee to question her with respect to the pen. However, it can not be held, as a matter of law, that the appellant thereafter exercised ordinary caution in these circumstances. Once the decision to stop was made, the prosecution of appellee was automatic, according to appellant. There was no effort made to listen to, or believe, the explanation proffered by appellee because there was nothing she could have said that could have changed the appellant’s decision to prosecute. And additionally, the appellant continued with the prosecution after the recommendation was made by the city attorney that the action be dismissed.
While those facts, as were all others, were undisputed, they were susceptible to different inferences. The submission of the issues of false imprisonment and malicious prosecution to the jury was entirely appropriate in these circumstances. [Citations omitted.]
We agree with Miller that the evidence in this case is in dispute as to whether there was a “knowing concealment, upon [her] person . . . of unpurchased goods. . . .” Crabb testified that he heard Miller state that “she had done nothing wrong” and say that the items had been under, rather than inside, her purse when she was initially stopped by Baker. Baker herself testified that the magazine was partially visible to her at the checkout counter. The trial court, in granting summary judgment, found only that Miller left the store with “at least partially concealed merchandise.” Miller contends that the merchandise was inadvertently left under her purse while Kroger employees assert that it was inside the purse. The facts in dispute in this case thus render it distinguishable from the facts in Standard, supra, in which a ham had been knowingly concealed by being stapled inside a bag. These disputed facts are material to the issue of whether Miller knowingly concealed the four books with the purpose of taking the items from the store without paying for them. Moreover, as in Yar-brough, Baker testified that after stopping Miller, she had no choice or discretion not to pursue Miller’s prosecution, and stated:
The Kroger policy with regard to shoplifting is to make 100% sure that the person has taken merchandise. If I have any doubt, I am not supposed to stop them. ... It is Kroger’s policy to always call the police and ask them to arrest the suspect if the suspect is guilty. It is the corporate policy that whenever a shoplifter is detained, the police are to be called to arrest the suspect. I am not given a choice. If I apprehend a shoplifter, I call the police, always.
Thus, as in Yarbrough, once Baker made the decision to stop Miller, arrest and prosecution was automatic. The arresting officer’s testifying favorably to Miller in her municipal court proceedings can also be likened to the prosecuting attorney’s recommendation to dismiss the case in Yarbrough. Accordingly, we hold that the trial court erred in granting summary judgment to Kroger on the claim of malicious prosecution.
Miller next argues that the trial court erred in granting summary judgment on the claim of false imprisonment. Miller contends that Kroger employees induced her to return to the store under false pretenses and that she was held against her will for close to an hour before the police arrived, an excessive period of time. It is not in dispute that Miller left the store with unpurchased goods, voluntarily returned to the store, and was aware when she did so that Baker had declined to simply allow her to pay for the items. In The Limited Store, Inc. v. Wilson-Robinson, 317 Ark. 80, 876 S.W.2d 248 (1994), the supreme court in reversing a jury verdict in favor of the plaintiff for false imprisonment, stated:
It is well established that the restraint constituting a false imprisonment may be by threats of force which intimidate the plaintiff into compliance with orders. Although the plaintiff is not required to incur the risk of personal violence by resisting until force is actually used, it is essential that the restraint be against the plaintiff’s will. Submission to the mere verbal direction of another, unaccompanied by force or threats of any character, does not constitute false imprisonment. If one agrees of one’s own free choice to surrender freedom of motion, as by accompanying another voluntarily to clear oneself of suspicion, rather than yielding to the constraint of a threat, then there is no imprisonment. [Citations omitted.]
Id. at 84, 876 S.W.2d at 250-51.
In granting summary judgment, the trial court found that Miller voluntarily returned to the store in order to resolve the matter. Miller testified in her deposition, “I voluntarily went back inside,” and that Baker was “adamant” that she was not going to simply let her pay for the books. Miller further testified that by the time the paperwork was completed, the officer who arrested her had arrived. In sum, Miller did not present any evidence of threats of force or that she was restrained against her will, and the trial court properly granted summary judgment on this count.
Miller’s final argument is that the trial court erred in granting summary judgment on the claim of outrage. In support of her argument, Miller asserts that Baker testified falsely when she stated that she placed the books in her purse and cites to Kroger’s actions in forcing her to walk up a flight of steps to the office, refusal to allow her to call her son so she could get a needed insulin shot, and forcing her to walk down the stairs and exit the store in handcuffs. Miller contends that she suffered physical and emotional injury as a consequence of Kroger’s actions. As Kroger points out, Miller testified that after selecting the books and magazine and placing them in the child seat, she removed two paperback books of her own and other items from her purse to retrieve her checkbook and grocery list, and that Baker must have viewed her replacing these items in her purse and believed them to be the Kroger items. Miller testified that she told Baker she felt ill, but declined Baker’s offer to call an ambulance. Kroger argues that, to the extent Miller’s assertion of false testimony presenting a claim for defamation, any statements given to police were related to Miller’s prosecution and privileged pursuant to Routh Wrecker Service Inc. v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998), and that at most, Baker may have been mistaken about what she observed.
In Faulkner v. Arkansas Children’s Hospital, 347 Ark. 941, 69 S.W.3d 393 (2002), the supreme court recently restated the standard for the tort of outrage:
There are four elements that are necessary to establish liability for the tort of outrage: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was “extreme and outrageous,” was “beyond all possible bounds of decency,” and was “utterly intolerable in a civilized community;” (3) the actions of the defendant were the cause of the plaintiffs distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. In sum, this court has taken a very narrow view of claims of outrage. [Citations omitted.]
Dillard’s Department Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993), is similar to the instant case because the outrage claim arose out of accusations of theft. In the Dillard case, a sales manager believed he had observed Ms. Adams, a customer, switch the price tags on two bathing suits and then purchase the one with the lower price tag. As Adams was leaving the store, the manager and a security guard stopped her, identified themselves as “Dillard’s security,” and asked her to accompany them to the rear of the store. In a manager’s office, Adams was confronted about switching the price tags, but denied any wrongdoing. The store manager and the police were called. The store manager questioned Adams, took her picture, and told her she was banned from the store. The police issued her a citation and escorted her from the store. The entire incident lasted twenty minutes to an hour. The supreme court stated:
[W]e have addressed outrage in a cautious manner. Our recognition of this tort is not intended to “open the doors of the courts to every slight insult or indignity one must endure in life.”
We cannot say Ms. Adams presented sufficient evidence for a jury instruction on the tort of outrage. Ms. Adams testified the entire incident lasted less than an hour. During that time she was not physically touched, and while Dillard’s employees may have questioned her in a confrontational manner, there is no evidence that their tone was abusive or harassing. Ms. Adams testified that Ms. Hallmark initially confronted her in a professional manner and in such a way as not to draw the attention of any other customers.
We do not mean to say that Dillard’s employees’ actions were merely a “slight insult.” We recognize Ms. Adams may well have suffered mental distress as a result of them. She was accused of a crime of which she was not convicted. We cannot, however, find in the facts alleged or shown the kind of extreme degree of outrageous conduct “as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society.” Whatever the merits of the claim of Dillard’s and Ms. Hallmark as to Ms. Adams’s conduct (and we assume no merit in them for purposes of this appeal) nothing that was done constituted conduct fitting our definition of “outrage.”
Id. at 305-06, 867 S.W.2d at 443-44.
Applying this standard for the tort of outrage, we cannot say that Miller’s evidence is sufficient to sustain her claim. Miller acknowledged that Baker could have seen her replacing several of her own books and other items in her purse after she had removed the books at issue from the Kroger shelves and believed them to be the property of Kroger. The stairs to the office were described as several steps, a landing, and several additional steps. The incident, as in Dillard’s Department Store, Inc. v. Adams, supra, lasted from twenty minutes to an hour, and there is no evidence that Kroger, rather than the Conway policeman, made the determination to arrest Miller instead of issuing a citation. In sum, we cannot say that Kroger’s conduct as described by Miller displays the kind of “extreme degree” of outrageous conduct required to survive the motion for summary judgment brought by Kroger. Consequently we affirm the trial court’s ruling as to this count.
Affirmed in part, reversed and remanded in part.
Neal, Gladwin, Griffen, and Hart, JJ, agree.
Stroud, C.J., Pittman, Robbins, and Crabtree, JJ., would grant rehearing and affirm. | [
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Terry Crabtree, Judge.
In this workers’ compensation case, the Commission affirmed and adopted the decision of the administrative law judge to deny benefits to the appellant, Edna Cross. The Commission found that appellant failed to prove by a preponderance of the evidence that she sustained either a specific-incident injury or a gradual-onset injury to her back. On appeal, she asserts that the Commission erred as a matter of law in denying her claim for “temporary total disability benefits and medical benefits because there was no objective finding of the injury.” Specifically, appellant argues that objective medical findings are not necessary for the Commission to award temporary total disability benefits pursuant to a gradual-onset injury. We affirm.
Appellee Magnolia Hospital began employing appellant as a registered nurse in 1990. She testified that she was trained to work in many areas of the hospital but was assigned to the intensive care unit. She described her physical job duties in great detail and explained her various activities that required lifting, stooping, bending, pushing, and pulling.
Appellant underwent surgery to her back in 1998 for a condition unrelated to her employment. The pre-surgery radiology report from the Magnolia Hospital dated May 17, 1998, revealed degenerative bone and joint changes and degenerative disc disease at L5-S1. Appellant’s treating neurosurgeon, Dr. Scott Schlesinger, interpreted the pre-surgical myelogram and CT scan as revealing a left L4-5 disc herniation with nerve-root compression and an osteophyte and spondylosis at the L5-S1 level. During surgery on June 9, 1998, Dr. Schlesinger located and removed a large disc herniation at the L4-5 level. After five weeks of recovery, appellant returned to work. In his report dated June 29, 1998, Dr. Schlesinger limited appellant to lifting no more than forty pounds for three months.
After being released to return to work, appellant presented to her family physician, Dr. Fred Murphy, with complaints of low-back pain on October 27, 1998. She again returned to Dr. Murphy with complaints of back pain on August 27, 1999. After this visit, she did not complain of lower-back pain upon her visits to Dr. Murphy until January 2, 2001. Appellant testified at her hearing about several incidents at work in which she developed back pain. Appellant completed several Quality Management Performance Reports detailing each incident occurring at work. However, the medical records reveal that she only sought medical treatment for lower-back pain related to one of these incidents.
On appeal, she does not challenge the Commission’s determination that she did not sustain a compensable injury resulting from a specific incident. Furthermore, she does not challenge the Commission’s determination that she did not sustain a compensa-ble injury resulting from gradual onset. For our review, she only asks us to decide whether the Commission erred as a matter of law in requiring her to provide objective medical findings to support her entitlement to temporary total disability benefits. Appellant’s argument fails for two reasons.
First, appellant misunderstood the Commission’s determination. The Commission only required her to provide objective medical findings in support of her alleged compensable injury. The requirement that a compensable injury be established by medical evidence supported by objective medical findings applies only to the existence and extent of the injury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
Second, appellant’s argument is misplaced; it presupposes that she sustained a compensable injury. In this case, the Commission rejected her arguments that she sustained a compensable injury resulting from a specific incident or from gradual onset. Without an initial finding of compensability, a claimant cannot be awarded temporary-total disability benefits or additional medical treatment. See Ark. Code Ann. § ll-9-102(4)(D) (Supp. 1999). Although objective medical findings are not directly necessary for the Commission to award temporary-total disability benefits, such findings are required for the underlying injury to be compensable. Williams v. Prostaff Temporaries, 64 Ark. App. 128, 979 S.W.2d 911 (1998), aff'd, Williams v. Prostaff Temporaries, 336 Ark. 510 (1999). Because appellant did not establish that she sustained a compensable injury, she cannot be entitled to temporary total disability benefits.
We affirm.
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John F. Stroud, Jr., Chief Judge.
This appeal involves the allocation of the burden of proof in a dispute over the priority between a vendor’s hen and materialmen’s liens. We affirm.
Appellees James and Carole Owens sold a house in Union County, Arkansas, to Alaverene Peace in December 2000, for $325,000, with a $25,000 down payment. Appellees financed the remainder and retained a vendor’s lien to secure payment of the balance. Appellants Del Mack Construction, Inc.; Electronic Alarm Company; Storey Floor and Carpet, Inc.; and Quality Electric Company asserted liens totaling $55,437.23.
Peace defaulted on her obligations to appellees, and appellees filed suit to foreclose their vendor’s lien. Appellees named appellants as defendants and asserted that appellants’ liens were subordinate to appellees’ vendor lien. Appellants filed answers to the complaint admitting that they claimed interests in the property but denying that those .interests were subordinate to appellees’ interest.
At trial, the parties stipulated that a balance of $296,000 was owed on the purchase price. Appellants presented the testimony of Peter Emig, a certified appraiser, as their valuation expert. Emig testified that he valued the property as of two separate dates: December 14, 2000, the date appellees conveyed the property to Peace, and August 30, 2001, the date Peace quitclaimed the property back to appellees. He testified that, in his opinion, the property was worth $147,000 in December 2000 and worth $210,000 as of August 30, 2001. He testified that the $63,000 increase in value was due primarily to the improvements. He also testified that he appraised the property at $300,000 in March 2001 but stated that this figure included the house and 17V2 acres of property. He testified that the $63,000 increase was based upon the value of the house and only one acre of land. He also testified that some of the work remained uncompleted but that he took this into consideration. He also explained his methodology and assumptions made, as well as his disagreements with appellees’ appraiser.
Appellees presented the testimony of Ron Robinson, a licensed certified general appraiser, as their valuation expert. He testified that he used the same dates as Emig for purposes of his valuations. His valuation as of December 2000 was $232,000 and his valuation as of August 30, 2001, was $197,000. He testified that one consideration was that the house was in a completed state in December 2000, while the work was incomplete in August 2001. He testified that he was not asked to determine the cost of completing the work necessary to make the house livable. He also testified that he did not visit the property until November 2001 and that he based his appraisals on conversations with other persons, including appellees. He also explained his methodology and assumptions made, as well as his disagreements with appellants’ appraiser.
Appellee Carole Owens testified as to changes in the property from the time of the December 2000 sale to the time of trial, such as trees being removed and a carport being demolished, and opined that the property was in worse condition and worth less than when it was sold to Peace. She stated that she had not obtained estimates of the cost of completing the house so that it could be resold.
Following trial, the trial court took the matter under advisement and issued a letter opinion on March 7, 2002. In its opin ion, the trial court noted that the parties agreed that the Arkansas Supreme Court’s decision in Simmons First Bank v. Bob Callahan Services, Inc., 340 Ark. 692, 13 S.W.3d 570 (2000), set out the applicable law. The trial court noted that Simmons First Bank interpreted the materialmen’s lien statutes, Ark. Code Ann. §§ 18-44-101 to -135 (1987 and Supp. 2001), as providing that suppliers have a priority over a prior mortgage to the extent that the improvements made to the property with the materials furnished enhanced the value of the property. The trial court placed the burden of proof on appellants and found that, although both experts were credible, “there is not a preponderance of the evidence to cause a conclusion that the unfinished work enhanced the value of the property.” The trial court then foreclosed the vendor’s lien and ordered the property sold, free of the claims for materialmen’s liens. Judgment was entered on March 25, 2002. The trial court denied appellant Quality Electric Company’s motion for reconsideration in which Quality Electric argued that appellees had the burden of proving that the improvements did not enhance the value of the property. This appeal followed.
This court reviews equity actions de novo. Simmons First Bank, supra. Moreover, we will affirm the trial court’s findings unless the findings are clearly erroneous. See Ark. R. Civ. P. 52(a); see also Adkinson v. Kilgore, 62 Ark. App. 247, 970 S.W.2d 327 (1998). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Smith v. Parker, 67 Ark. App. 221, 998 S.W.2d 1 (1999).
Appellants have filed a joint brief in which they argue one point: the trial court erred in placing the burden of proof upon appellants. As noted above, the parties agreed that Simmons First Bank v. Bob Callahan Services, Inc., 340 Ark. 692, 13 S.W.3d 570 (2000), set out the applicable law. The court in Simmons First Bank held that the materialmen’s hen statutes provide a priority to the extent that the materials furnished for improvements enhanced the value of the property. The Simmons First Bank court remanded the case to the trial court to conduct a hearing to determine the value of the property prior to the improvements and the value of the property with the improvements and ordered that the proceeds from the sale of the property be distributed first to the supplier to the extent of the increase in value and then to the owner. Simmons First Bank did not specifically answer the issue in the present case, i.e., who has the burden of proof.
The consistent rule has been to place the burden on the supplier to show that the materials for which he claims a Hen were used in the improvement on which a Hen was sought. E. C. Barton & Co. v. Neal, 263 Ark. 40, 562 S.W.2d 294 (1978); Stone Mill & Lumber Co. v. Finsterwalder, 249 Ark. 363, 459 S.W.2d 117 (1970); Lyle v. Latourette, 209 Ark. 721, 192 S.W.2d 521 (1946); Half Moon Gin Co. v. E. C. Robinson Lumber Co., 207 Ark. 483, 181 S.W.2d 239 (1944); Reiff v. Redfield Sch. Bd., 126 Ark. 474, 191 S.W. 16 (1916); Marianna Hotel Co. v. Livermore Foundry & Mach. Co., 107 Ark. 245, 154 S.W. 952 (1913); Ragsdell v. Gazaway Lumber Co., Inc., 11 Ark. App. 188, 668 S.W.2d 60 (1984). This is because, under Ark. Code Ann. § 18-44-101 (Supp. 2001), the Hen does not attach until the materials supplied are actuaHy used and incorporated into the improvement. Half Moon Gin Co. v. E.C. Robinson Lumber Co., supra. If the rule were otherwise, it would render meaningless the provision of Ark. Code Ann. § 18-44-110(b)(1) (Supp. 2001) that the materialmen’s Hen extends only to the enhancement of the value of the improvement for which the materials were used. We believe that this rule makes sense because the supplier is the party with the knowledge of the value of the materials and labor furnished for the improvement. We also believe that this conclusion is bolstered by section 18-44-101(a) (Supp. 2001), which provides:
Every contractor, subcontractor, or material supplier . . . who supplies labor, services, material, fixtures ... in the construction or repair of an improvement to real estate ... by virtue of a contract with the owner . . . upon complying with the provisions of this sub-chapter, shall have ... a hen upon the improvement and on up to one (1) acre of land upon which the improvement is situated. . . .
(Emphasis added.) In construing an earlier version of this statute, the Arkansas Supreme Court held that the burden was upon the supplier to prove that his claim came within the reach of the statute. Royal Theater Co. v. Collins, 102 Ark. 539, 144 S.W. 919 (1912). The court reasoned that a materialmen’s lien exists only by statute and, the power to obtain a lien being given by the statute, no one can obtain a lien unless he comes within the provisions of the statute. Id. The general rule is that, between conflicting liens, the one first filed of record shall have priority. Ark. Code Ann. § 18-40-102 (1987); Sims v. McFadden, 217 Ark. 810, 233 S.W.2d 375 (1950). The materialmen’s lien statute, Ark. Code Ann. § 18-44-110(b)(1), makes it clear that it is an exception to the “first in time, first in right” rule. See BB&B Constr. Co. v. F.D.I.C., 316 Ark. 663, 875 S.W.2d 48 (1994). If appellants in the present case cannot prove that the materials and labor they furnished increased the value of the property, they would not have a Hen under the statute. Royal Theater Co. v. Collins, supra.
Appellees rely on Stone Mill & Lumber Co. v. Finsterwalder, supra, as support for their argument that the trial court correctly placed the burden of proof upon appellants. Appellants, however, argue that Stone Mill & Lumber Co. v. Finsterwalder is not applicable because that case did not involve a dispute between the suppfier and a mortgage owner. While it is true that Stone Mill & Lumber Co. v. Finsterwalder did not involve the mortgage holder, it did hold that, as part of estabfishing its lien, the supplier must allege and prove that the materials furnished were used in the improvement.
Appellants also argue that the trial court abdicated its responsibility under Simmons First Bank, supra, by not determining the extent to which the improvements increased the value of the property. Appellants also suggest that the trial court should appoint a master to conduct a hearing to determine “whether and to what extent” the improvements increased the value of the property. Appellants’ phrasing in this manner suggests that they recognize that not all improvements will increase the value of the property, especially those that remain unfinished. The trial court’s decision was, effectively, a decision that appellants failed to prove that the improvements increased the value of the property. The trial court had the testimony of two conflicting expert opinions, and it decided that both experts were credible. When the evidence is evenly poised, judgment shall be against the party with the burden of proof. See Hays v. Williams, 115 Ark. 406, 171 S.W. 882 (1914); see also Ark. Code Ann. § 16-40-101 (1999). In this case, the trial court resolved the conflicts in the expert testimony in favor of appellees.
Affirmed.
Pittman and Baker, JJ., agree.
Peace also filed an answer in which she stated that she had filed bankruptcy and had no objection to an in rem judgment being entered against the property.
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John F. Stroud, Jr., Chief Judge.
Appellants, Heritage Baptist Temple and Utica National Insurance Company, appeal the Workers’ Compensation Commission’s grant of benefits to appellee, Tammy Robison. On appeal, they contend that the Commission’s determination that appellee sustained a compensable aggravation of her preexisting condition is not supported by substantial evidence. We affirm the Commission’s decision.
Robison, a nursery worker in appellant Heritage Baptist Temple’s day-care center, suffered an admittedly compensable injury on March 7, 2000, when she crawled under a baby bed to retrieve an object for a child. Robison testified that when she stood up, she had a lot of pain in her hip and down her leg. Although she mentioned it to her supervisor at the time, Robison said that she did not think it was serious, and she did not seek medical treatment until almost two weeks later. On March 20, 2000, Robison saw Dr. Michael Sung, reporting pain in her right hip and leg, neck, and left shoulder. Dr. Sung treated Robison with medication, ordered x-rays, and scheduled an MRI. At follow-up visits on March 31 and April 4, Dr. Sung’s notes indicate that Robison was still having lower back pain; he then referred her to Dr. Blankenship, an orthopedic physician. Robison saw Dr. Blankenship on April 7 and reported that she crawled under a crib and “twisted” her lower back. She also reported pain in her lower extremities. Upon examination, Dr. Blankenship diagnosed Rob-ison with “acute lower back pain with tight lower extremity radiculopathy, possibly on a discogenic basis.”
The MRI performed on April 12 was normal. Robison returned to Dr. Blankenship on April 13, and he ordered a triple-phase bone scan, which was performed on April 19. The bone scan found increased activity at the level of the anterior-superior iliac spine on the right, with increased uptake at the level of the right anterior-superior iliac spine. The bone-scan report from the radiographer stated that an avulsion injury of the sartorius was suspected. Robison returned to Dr. Blankenship on April 26, and he recommended an MRI of the right hip and right anterior-superior iliac crest area in light of the bone-scan findings. The second ■ MRI, performed on April 28, found abnormal signal intensity within the anterior-superior margin of the right iliac bone involving the anterior-superior iliac spine. The report stated that the findings were worrisome for an intrinsic lesion near the anterior-superior iliac spine and recommended a CT scan of this region.
A CT scan of the pelvis/right hip was performed on May 12. This scan revealed a lytic lesion within the anterior aspect of the right iliac crest. Robison returned to Dr. Blankenship on May 15 with some slight tenderness in the anterior superior iliac spine area. In light of the results of the CT scan, Dr. Blankenship referred her to Dr. Berry Thompson, who examined her that same day. After examination and review of the medical reports, Dr. Thompson’s impression was that the lytic lesion probably represented an enchondroma in the area of the anterior-superior iliac spine. In his letter of May 15, Dr. Thompson stated:
The increased uptake on the bone scan would suggest that she fractured into it at the time of her on the job injury. I believe that it does need excision by curettage for treatment and to confirm the diagnosis. It is my opinion that while the underlying lesion is not directly related to her on the job injury, the fracture into it is and this represents a pre-existing condition with an aggravation at work. The aggravation accounting [sic] for more than 50 percent of the problem and thus does qualify under workers’ compensation laws to be covered.
Dr. Thompson performed surgery on Robison on July 31, 2000, and the biopsy revealed a benign bone tumor, a fibrous dys-plasia, instead of a fracture. However, in his deposition testimony, Dr. Thompson stated that there had been ample time for a fracture to have healed. Although he did not see evidence of a healed fracture at the time of the surgery, he stated that the surgical findings did not change his opinion that the tumor was made symptomatic by Robison’s work-related incident. He said that he would not expect a fibrous dysplasia to become symptomatic without some trauma.
Dr. Bruce Safman, an independent consultant, reviewed Robi-son’s medical records and came to the conclusion that there was no supporting evidence in the medical records that any pathology to the anterior portion of the iliac crest occurred at the time of Robi-son’s injury. However, upon review of Dr. Sung’s notes, Dr. Safman conceded that he was unable to state whether Robison’s condition was caused by the admittedly compensable injury:
Based on the lack of information in the notes, I have no basis on which to determine whether of not there was any iliac crest pain initially. It is not known whether Dr. Sung’s reference to right “hip” pain referred to the iliac crest or not. Thus, I believe that we will have to accept the patient’s verbalization that her symptoms are related to her initial injury, as there is no good documentation regarding the specific localization of her pain no [sic] the findings on her initial examinations between March 20th and April 4, 2000.
Our standard of review in workers’ compensation cases is well-settled. We view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commis sion’s findings and affirm the decision if it is supported by substantial evidence. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Geo Specialty, supra.
“In workers’ compensation law, an employer ‘takes the employee as he finds him,’ and employment circumstances which aggravate pre-existing conditions are compensable.” Nashville Livestock Comm’n v. Cox, 302 Ark. 69, 73, 787 S.W.2d 664, 666 (1990). An aggravation of a preexisting noncompensable condition by a compensable injury is, itself, compensable. Oliver v. Guardsmark, Inc., 68 Ark. App. 24, 3 S.W.3d 336 (1999). An aggravation is a new injury resulting from an independent incident. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). An aggravation, being a new injury with an independent cause, must meet the definition of a compensable injury in order to establish compensability for the aggravation. Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996).
Arkansas Code Annotated section 11-9-102(4) (A) (i) (Supp. 1999) defines “compensable injury” as
An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence.
A compensable injury must be established by medical evidence supported by “objective findings.” Ark. Code Ann. § 11-9— 102(4)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16) (A) (i).
Appellants argue that in the present case, no medical evidence of an injury was presented in connection with the bone tumor. In support of their contention, they point to the deposition testimony of Dr. Thompson, who testified that such lesions become symptomatic when aggravated by a fracture or muscle loosened from the bone; however, he also testified that when he performed the surgery, he saw no evidence of a fracture or a healed fracture, or of torn or loosened muscle. They contend that Dr. Thompson’s opinion that there was an injury was simply speculation and conjecture because he found no' evidence of an injury while performing the surgery and because the surgery did nothing to repair any injury, but instead only removed the preexisting tumor.
Appellants also contend that the speculation of an injury stemmed from a positive bone scan, which Dr. Thompson testified usually indicated an injury. Appellants categorize the bone-scan results in this case as only indicating the lesion because no injury was seen by Dr. Thompson when he performed the surgery.
We disagree with appellants’ contentions. Dr. Thompson testified in his deposition that the bone lesion was not the only objective finding, that there was a positive bone scan that he described as “hot,” which showed an increased uptake; he stated that such a bone scan “suggested that if that was the major factor, that suggested it was an acute injury.” Based upon this positive bone scan, Dr. Thompson determined that Robison needed surgery, and the surgery revealed that the bone tumor was benign. The positive bone scan is an objective medical finding of injury that was out of Robison’s control, and it formed the basis for the recommendation of surgery. Furthermore, Dr. Thompson also testified that although he did not find evidence of a fracture or a healed fracture at the time he performed Robison’s surgery, the surgical findings did not change his opinion that the bone tumor was made symptomatic by the work-related incident. We hold that substantial evidence exists to support the Commission’s determination that Robison sustained an aggravation of her preexisting condition. Therefore, we affirm the award of benefits to Robison.
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Andree Layton Roaf, Judge.
Appellant Tyrone Simpson was convicted by a jury of second-degree murder and sentenced to twelve years’ imprisonment. On appeal, Simpson argues that the trial court abused its discretion by refusing to allow lay-opinion testimony by an eyewitness that the shooting was accidental. We agree that the trial court erred, and we reverse and remand.
Simpson was charged with first-degree murder in connection with the shooting death of Rufus Lytle, which occurred on October 20, 2001. At trial, the State called as a witness James Lytle, a brother of the victim and an owner of Lytle’s Grocery and Arcade, the establishment where the shooting took place. Lytle testified that, on the evening of October 20, there was a fight taking place in the back room, known as the poolroom, of the store. Lytle stated that he went from the poolroom into the front room of the store and encountered Simpson, who was carrying a shotgun. Lytle testified that he told Simpson that he did not need to be in the store with a shotgun, but that Simpson remained there pointing his shotgun in the air and trying to see what was going on in the poolroom. While talking to Simpson, Lytle stated that his brother, Ralph Lytle, Sr., came into the store carrying a shotgun. According to Lytle, Ralph came up behind Simpson and struck him on the side of the head with the butt of the gun. As Simpson fell to the floor, Lytle testified that Simpson’s gun discharged, striking another brother, Rufus Lytle, in the head and killing him. Lytle stated that both Simpson and Ralph immediately left the premises.
On cross-examination, Simpson asked Lytle, “What kind of shooting would you characterize this as?” The State objected, arguing that the question called for a conclusion and invaded the province of the jury to determine the circumstances of the shooting. Simpson replied that it was permissible for a witness to a shooting to testify as to whether in his opinion, the shooting was accidental or intentional. The trial court sustained the objection and disallowed the testimony, stating that it was not demonstrated that the testimony would be helpful to the jury and that it invaded the province of the jury for a layperson to testify as to the ultimate conclusion. Simpson was allowed to proffer the expected testimony of Lytle. In the proffered testimony, Lytle stated that he witnessed every moment of the events surrounding the shooting and that he would characterize the shooting as an accident. Lytle testified that in his opinion, Simpson was not intending to shoot the gun when he fell.
Simpson’s sole argument on appeal is that the trial court erred in refusing to allow the opinion testimony of the eyewitness. The decision on whether to admit relevant opinion evidence rests in the sound discretion of the trial court, and the trial court’s ruling will not be reversed absent an abuse of discretion. Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). Arkansas Rule of Evidence 701 (2002) permits lay witnesses to testify in the form of opinions or inferences, as long as those opinions or inferences are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. Testimony in the form of an opinion or inference that is otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Ark. R. Evid. 704 (2002); Marts v. State, supra. Although opinion testimony on the ultimate issue is admissible, if the opinion mandates a legal conclusion or “tells the jury what to do,” the testimony should be excluded. Marts v. State, supra (citing Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990)). For example, an opinion by an expert witness in a medical malpractice case that a doctor was not negligent was held to be inadmissible because it did not merely embrace the ultimate issue, but was tantamount to telling the jury what result to reach. Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1982).
Simpson contends that the proffered opinion in this case, which was that the shooting was accidental, was rationally based on James Lytle’s perception, that it would have been helpful to a clear understanding of his testimony or a determination of a fact in issue, and that it does not mandate a legal conclusion. As support for his argument, Simpson cites Mathis v. State, 267 Ark. 904, 591 S.W.2d 679 (Ark. App. 1979). In Mathis, the defendant was convicted of second-degree murder for the shooting death of his girlfriend. According to the testimony of an eyewitness, the parties were arguing, and the defendant went to get his gun. The witness placed herself in between the defendant and his girlfriend, and she testified that the defendant then reached around and shot his girlfriend. The witness was allowed to testify that in her opinion, the shooting was not accidental. On appeal, the defendant argued that the trial court erred in allowing an opinion on the ultimate issue. He also argued that her opinion was not rationally based on her perception because it went to his state of mind and not to something that could be perceived by her senses. This court held that the opinion was properly admitted, finding that the opinion was rationally based on her observations of the struggle and that it was helpful to the trier of fact to know whether the eyewitness felt the shooting was accidental. Id. We stated that opinion testimony is no longer viewed as “usurping the function of the trier-of-fact” and that the “trier of fact considers the opinion along with the other evidence and determines the weight to be attached to the testimony.” Id. at 907, 591 S.W.2d at 681.
Also, in Salley v. State, supra, police officers were allowed to testify that the defendant appeared to be “shooting to kill,” when he pointed the handgun at one of the officers. The court found that this type of testimony is quite different from an expert who utilizes established facts and from those facts makes a conclusory statement that the actor was “negligent” or “guilty of malpractice.” Id. at 283, 796 S.W.2d at 338; see also Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984) (finding officer’s testimony that the defendant was intoxicated was admissible although it embraced the ultimate issue, since it did not mandate a legal conclusion); Tillman v. State, 275 Ark. 275, 630 S.W.2d 5 (1982) (finding that the trial court properly admitted a witness’s opinion that a car had backed out of a driveway just before he saw it, where the witness’s observations as to the car’s position relative to the driveway and as to its movement provided a rational basis for his opinion).
Here, Lytle testified that he observed every moment of the events leading up to the shooting by Simpson, and he observed Simpson’s fall and the discharge of the gun. Lytle described the fall and the subsequent shooting as happening so quickly that he was not sure if Simpson had even hit the ground when the gun fired. Thus, the proffered opinion that the shooting was accidental is rationally based on Lytle’s perception of the events. The State argues that this case can be distinguished from Mathis, supra, because Lytle did not know where the victim was before the shooting. However, Simpson’s actions, not the victim’s, were the ones relevant to the issue in this case. Thus, the State’s argument that Lytle did not observe the entire transaction is without merit. In addition, this opinion would have been helpful to a clear understanding of his testimony describing the shooting, since he testified that “it happened so fast” that he could not say whether the shot went off before or after Simpson fell to the ground. Given Simpson’s defense that the shooting was accidental, this opinion testimony would also have been helpful to a determination of a fact in issue, namely, whether Simpson committed first-degree murder or some other lesser-included offense. Therefore, this opinion testimony is proper under Ark. R. Evid. 701.
The trial court’s ruling that it would have “invaded the province of the jury” for Lytle to testify as to the ultimate conclusion in this case is contrary to the holding in Mathis v. State, supra. As in Mathis, the opinion in this case would not have mandated that the jury reach a certain conclusion. Instead, the jury should have been able to consider this opinion along with all of the other evidence and determine the weight to be attached to the testimony. Id. Thus, the trial court abused its discretion in excluding this testimony.
Finally, we note that other jurisdictions have reached a different conclusion when considering whether lay opinion testimony is admissible under analogous circumstances. United States v. Skeet, 665 F.2d 983 (9th Cir. 1982) (holding witness should not be allowed to give opinion as to whether shooting was accidental where jury could be put into a position of equal vantage with the witness for drawing the opinion); State v. Turner, 136 Idaho 629, 38 P.3d 1285 (2001) (holding that opinion testimony that shooting was accidental was properly struck where witness testified to facts and circumstances surrounding the shooting, and jurors from their common experience and knowledge could draw their own conclusions about whether shooting was an accident); State v. Parks, 71 Or. App. 630, 693 P.2d 657 (1985) (holding witness’s opinion that shooting was an accident not admissible where witness was not better able than jury to reach a conclusion on that issue); Fairow v. State, 943 S.W.2d 895 (Tex. Ct. App. 1997) (holding opinion from witness as to whether shooting was accidental not admissible because it would not be helpful from a witness able to articulate his perceptions in great detail, thus increasing the likelihood that the jury could form its own opinion). These authorities, while soundly reasoned, are not in fine with the holdings in Mathis v. State, supra, and Salley, supra, where admission of opinion testimony about the accidental nature of a shooting was upheld even though the witness appeared to testify to sufficient facts and circumstances to allow the jury to form its own opinion. We therefore' must reverse and remand.
Reversed and remanded.
Pittman and Neal, JJ., agree. | [
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Terry Crabtree, Judge.
This appeal challenges the Faulkner County Circuit Court’s order holding that part of the estate of Worth Harrison, who died in 1995, must be distributed according to the law applicable to intestates, denying the executor, appellant Maurice Harrison’s, petition for an accounting of alleged partnership assets, and awarding attorney’s fees to appellee Ronald Harrison.
Procedural History
Worth’s 1992 will was admitted to probate. In paragraph II, it mentioned his children, appellant Maurice Harrison, appellees Ronald Harrison and Robert Harrison, and Peggy Harrison:
I do hereby recognize Ronald Harrison and Robert Harrison, as my natural heirs, however, and nonetheless, I decline to give, devise or bequeath any of estate, real or personal, to said heirs. I do hereby recognize Maurice Harrison, and Peggy Ann Harrison as my natural heirs, however, and nonetheless, I decline to give, devise or bequeath any of my estate to them, except as herein directed.
In paragraph III, Worth gave a life estate in his home and its surrounding eighty acres to his wife, Mamie Harrison. He also gave her a one-third interest in his personal estate; the remaining two-thirds were bequeathed to Maurice and Peggy. In paragraph IV, he devised real property in Faulkner County to Peggy.
The wording of paragraph V is the basis of this dispute. It stated:
In the event that Mamie Harrison, should predecease me, I then give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal and wherever situated, after payment therefrom of all estate, death and inheritance taxes due from my estate, to my son, Maurice Harrison.
Mamie, however, did not predecease Worth, and the lack of a residuary clause disposing of Worth’s estate if Mamie survived Worth prompted Ronald to file this action for construction of the wiE. In his petition, Ronald asserted that the residue of Worth’s estate should be distributed according to the rules of intestate succession (divided equaEy to his sole heirs, Ronald, Robert, Maurice, and Peggy). Maurice, however, contended that Worth intended to disinherit Ronald and Robert regardless of whether Mamie survived him. He urged the judge to construe the wiU in accordance with the presumption against intestacy and to excise the phrase “in the event that Mamie Harrison should predecease me” from paragraph V.
Maurice also filed a counterclaim against Ronald, aEeging that, at the time of his death, Worth owned a one-half interest in a cattle-farming partnership, and requesting an accounting from Ronald. Maurice also included this purported one-half interest in the estate’s inventory. In response, Ronald argued that the partnership had not operated since 1972, when he had purchased Worth’s interest, for which he had made payments to Worth from 1972 to 1984. Ronald moved for an award of attorney’s fees and costs pursuant to Ark. R. Civ. P. 11, arguing that appeUant’s petition for an accounting lacked any factual or legal basis and was intended to punish Ronald for filing the petition to construe the wiU.
The judge issued findings of fact and conclusions of law addressing the construction of the wiU and the petition for a partnership accounting. He stated:
The Court is bound by rules of construction of wills as provided by statute and precedent and is aware of the strong presumption against partial intestacy. The cardinal principle of will interpretation is that the testator’s intent governs and that intention is to be gathered from the four corners of the instrument. Gifford v. Estate of Gifford, 305 Ark. 46, 805 S.W.2d 71 (1991). If at all possible we will broaden or enlarge a residuary clause to avoid intestacy. Cook v. Estate of Seeman, 314 Ark. 1, 858 S.W.2d 114 (1993). 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. Park v. Holloman, 219 Ark. 288, 195 S.W.2d 546 (1946).
Viewing the will on its four corners, the Court finds that there is no residuary clause in the testator’s will. If it was the intent of the testator to disinherit all of his children except Maurice Harrison if he died before Mamie Harrison, the will fails to so provide. Whether it was a mistake by the testator or the attorney preparing the will, the Court must look at the language expressed in the will and not what might have been his intent. Further, Paragraph V could be construed to disinherit all the testator’s children, including Maurice. The testator’s intent is not clear and the Court declines to re-write the will by excising clear language of the will.
Therefore, that part of the estate not disposed of by the will shall be distributed as provided by law with respect to the estates of intestates.
The judge also found that the purported partnership terminated more than twenty years before Worth died and stated that the executor’s claim was “without merit.”
Ronald then moved for an award of attorney’s fees under Ark. Code Ann. §§ 16-22-308 and 16-22-309 (Repl. 1999). In his order, which incorporated his findings of fact and conclusions of law, the judge awarded Ronald $5,000 in attorney’s fees without explaining the basis of the award.
Arguments
Maurice contends that the trial judge erred in finding that the residue of the estate must pass according to the law of intestacy; in awarding attorney’s fees to Ronald; and in admitting into evidence some documents offered by Ronald to rebut Maurice’s claim that the estate held an interest in the cattle farm.
The Will
Maurice argues that the trial judge erred in refusing to excise the phrase “in the event that Mamie Harrison should predecease me” from paragraph V of the will. He contends that Worth obviously intended to disinherit Ronald and Robert, that this phrase is “an absurdity,” and that the will should be construed as leaving the residue of the estate to him alone. He relies on the rules of law that a testator is presumed to dispose of his entire estate and that wills are to be interpreted so as to avoid partial intestacy unless the language compels a different result. Maurice states: “In this case we have a perfectly clear residuary clause clouded only by an absurd introductory phrase.”
We agree with the trial judge’s recitation of the law. In the interpretation of wills, the paramount principle is that the intent of the testator governs. Carpenter v. Miller, 71 Ark. App. 5, 26 S.W.3d 135 (2000). The testator’s intent is to be gathered from the four corners of the instrument itself. Id. However, extrinsic evidence may be received on the issue of the testator’s intent if the terms of the will are ambiguous. Edwards v. Farm Bureau Mut. Ins. Co., 308 Ark. 349, 823 S.W.2d 903 (1992); Carpenter v. Miller, supra. An ambiguity has been defined as an indistinctness or uncertainty of meaning of an expression in a written instrument. Carpenter v. Miller, supra. 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. Rufty v. Brantly, 204 Ark. 32, 161 S.W.2d 11 (1942). Extrinsic evidence may be admitted only for the purpose of showing the meaning of the words selected by the testator and not to show what the testator meant. Roy v. McComb, 232 Ark. 769, 340 S.W.2d 381 (1960). Although the use of extrinsic evidence is appropriate when the will expresses an intent, it is inappropriate when the instrument expresses no intent. David Terrell Faith Prophet Ministries v. Estate of Varnum, 284 Ark. 108, 681 S.W.2d 310 (1984). These principles were explained in Park v. Holloman, 210 Ark. 288, 291, 195 S.W.2d 546, 547 (1946):
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.
The general rule against partial intestacy is an artificial rule of construction that is to be resorted to when the intent of the testator cannot be determined by giving the words used their usual meaning; it has no application when the language of the instrument compels a different result. Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977). The rule against partial intestacy is not used unless there is some ambiguity. Chlanda v. Estate of Fuller, 326 Ark. 551, 932 S.W.2d 760 (1996). Furthermore, opposed to that aid to construction is the statutory presumption against the disherison of a child. Armstrong v. Butler, supra. The presumption against intestacy is subordinate to the statutory presumption against disherison. Id.
In Cook v. Estate of Seeman, 314 Ark. 1, 858 S.W.2d 114 (1993), the supreme court held that an exclusionary clause in a will lacking a residuary clause did not control intestate property held by the testatrix. The court acknowledged that the cardinal principle of will interpretation is that the testator’s intent governs, that such intention is to be gathered from the four corners of the instrument, and that, if at all possible, the court will broaden or enlarge a residuary clause to avoid intestacy. Nevertheless, the court stated:
Yet, here, there is no residuary clause disposing of the balance of the decedent’s estate so intestacy as to the residence is unavoidable. Our statutes provide that any part of the estate “not disposed of by will shall be distributed as provided by law with respect to the estates of intestates.” Ark. Code Ann. § 28-26-103 (1987).
Although there are no Arkansas cases deciding whether the intent to disinherit should affect distribution of intestate property, we have mentioned this issue on one occasion. In Quattlebaum v. Simmons Nat’l Bank, 208 Ark. 66, 184 S.W.2d 911 (1945), we stated in obiter dictum, “The fact that a person is disinherited by the will does not prevent his sharing, as heir at law or distributee, in property, a legacy or devise of which has failed by lapse.” Quattlebaum, 208 Ark. at 69, 184 S.W.2d at 913 (Citation omitted).
We hold that although the will excluded the appellants from the estate, it did not alter their entitlement under the laws of intestate succession, provided in Ark. Code Ann. § 28-26-103 (1987).
314 Ark. at 3-4, 858 S.W.2d at 115-16.
Although Maurice argues otherwise, we see no meaningful distinction between this case and Cook v. Seeman. We also disagree with Maurice’s contention that, except for the “absurdity,” the will contains an effective residuary clause. On the contrary, it contains an omission because it fails to provide for disposition of the remaining assets of the estate in the event that Mamie survived Worth. Therefore, we hold that the residue was not disposed of by the will and that it should be distributed according to the law applicable to intestates. See Ark. Code Ann. § 28-26-103 (1987).
Attorney’s Fees
Maurice argues that the judge erred in awarding attorney’s fees to Ronald under either Ark. Code Ann. § 16-22-308 or § 16-22-309 (Repl. 1999).
Arkansas Code Annotated section 16-22-308 provides for the award of attorney’s fees in certain civil actions:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
Maurice argues that this statute does not provide for an award of fees for an accounting in the context of a partnership. In response, Ronald asserts that it does, because a partnership is based upon a contract. It is our conclusion that fees were properly awarded under this statute.
A partnership is defined in Ark. Code Ann. § 4-42-201 (Repl. 2001) as “an association of two (2) or more persons to carry on as co-owners a business for profit. . . .” A partnership is a legal relationship, in the nature of a finite entity, arising out of contract. 59A Am. Jur. 2d Partnership § 1 (1987). It is often defined as a contract of two or more competent persons to place their money, effects, labor, and skill in business and to divide the profit and bear the loss in certain proportions. Id. at § 3. A partnership is a contractual relationship that may vary, in form and substance, in an almost infinite variety of ways. Frank v. R.A Pickens & Son Co., 264 Ark. 307, 572 S.W.2d 133 (1978). The accounting sought by appellant, therefore, necessarily involved the terms of the partnership agreement and the parties’ rights created by that agreement. We thus affirm the award of fees. Because we hold that fees were allowed under Ark. Code Ann. § 16-22-308, it is not necessary for us to also determine whether an award of fees was justified under Ark. Code Ann. § 16-22-309.
Admission of Evidence
As his final point, Maurice contends that the judge erred in admitting into evidence certain documents that rebutted the claim that the estate had an interest in the partnership. At trial, Maurice objected to their introduction on the ground that the documents had not been appended as exhibits to the answer to his counterclaim, as required by Ark. R. Civ. P. 10(d), which provides: “A copy of any written instrument or document upon which a claim or defense is based shall be attached as an exhibit to the pleading in which such claim or defense is averred unless good cause is shown for its absence in such pleading.” The documents were admitted, over Maurice’s objection, as evidence supporting Ronald’s claim that he purchased his father’s interest in the partnership in the 1970s.
Maurice has cited no case holding that the failure to append such exhibits to a pleading should prevent their introduction into evidence at trial. The admission of evidence is at the discretion of the trial judge, and this court will not reverse absent an abuse of that discretion and a showing of prejudice. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). Maurice does not argue that these exhibits were not relevant, unauthenticated, or otherwise inadmissible. Additionally, he has demonstrated no prejudice resulting from their admission. Even without the supporting documents, Ronald’s testimony was sufficient to demonstrate that the partnership terminated in 1972 and that he purchased Worth’s interest. The testimony of Ronald’s wife, Sue, supported his testimony. We believe that the general rule leaving this question to the trial judge’s discretion should apply, and we find no abuse of discretion.
Affirmed.
Stroud, C.J., and Neal, J., agree.
Ronald introduced canceled checks, check registers, loan documents, receipts, and tax returns to support his position. | [
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John F. Stroud, Jr., Chief Judge.
Appellant, Honoré Newberg, slipped and fell while attending a wedding reception at appellee’s facility on April 29, 2000, and she sustained injuries as a result of this fall. Newberg filed suit against appellee, Next Level Events, Inc., alleging that her injuries were a result of appellee’s negligence. Appellee filed a motion for summary judgment, which was granted by the trial court. Appellant now appeals, arguing that the trial court erred in granting appellee’s motion for summary judgment. We agree with appellant that summary judgment was inappropriate; therefore, we reverse the grant of summary judgment and remand the case for trial.
The standard of review utilized in determining whether a motion for summary judgment was properly granted was set forth by this court in Little Rock Electrical Contractors, Inc. v. Entergy Corp., 79 Ark. App. 337, 341-42, 87 S.W.3d 842, 845 (2002):
We no longer refer to summary judgment as a drastic remedy and now regard it as one of the tools in a trial court’s efficiency arsenal. We will only approve the granting of summary judgment when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to its day in court because there are not any genuine issues of material facts remaining. All proof submitted must be viewed in the light most favorable to the nonmoving party, and any doubts must be resolved against the moving party. However, it is well settled that once the moving party has established a prima facie entitlement to summary judgment, the burden shifts to the nonmoving party to meet proof with proof and demonstrate the existence of material fact. If there is evidence from which an inconsistent hypothesis might be drawn and reasonable minds might differ, then summary judgment is not proper.
(Citations omitted.)
In its motion for summary judgment, appellee makes the following statements: “That plaintiff was deposed on August 7, 2001 at the office of her counsel where she was unable to state any facts sufficient to find liability on part of Defendant. That specifically, plaintiff stated that no foreign substance was observed on the floor where she fell. Also, she stated that she had no knowledge that Defendant was aware of any substance or had put any substance in that place.” This motion was made prior to any discovery being made on appellant’s behalf.
After discovery, appellant rebutted appellee’s motion for summary judgment with the affidavit of another guest at the wed-, ding reception, Charles Williamson, who stated that he had slipped on the same step; that the step was slick; and that he had commented to another guest that he believed that the situation was dangerous. Appellant also relied upon the deposition of Steve Shadid, the owner of appellee. In his deposition, Shadid stated that appellee used a standard Johnson & Johnson wax on the floor, that it was applied by mop, and that it did not require buffing. He said that the area where appellant fell was waxed that day and would have taken about twenty minutes to dry; that he did not slip on the step after the floor had been waxed that day; and that no one had reported any problem to him about the slipperiness of the step. Shadid said that in applying the wax, the floor is mopped and the wax is left on the floor. He said that the floor is stripped approximately every three and one-half months, but there is no set schedule; it is stripped on an as-needed basis and when the facility’s schedule will allow it. Shadid did not know when the floor was last stripped, but speculated that it had probably been stripped in January or February. Appellant also presented the affidavit of her attorney, who had an opportunity to examine a label from the wax product at appellee’s attorney’s office. The label could not be reproduced because it was printed on clear plastic. In this affidavit, appellant’s attorney stated that the product was marketed under the name “Floor Science Premium Universal Sealer/Finish,” and that the label contained the following instructions: “Before recoating: dust mop or sweep, deep scrub floor using Floor Science cleaner, rinse floor before applying finish. Removal: remove using Floor Science stripper coded #1 red.” Appellant argued that appellee failed to properly clean the floor prior to applying the wax.
At the hearing on the motion for summary judgment, appel-lee’s attorney also argued that appellant admitted in her deposition that she had consumed an alcoholic beverage prior to her fall; appellant’s attorney contended that there was no indication of intoxication. Appellant’s attorney argued that appellee did not comply with the directions on the liquid-wax label. Appellee’s attorney countered that the precautions on the label that could lead to product failure or slippery conditions, namely using the product on floors coated with paste wax that had not been removed, diluting the product, using the product on cold floors, or reusing previously used product, had all been met by appellee. Appellant’s attorney stated that there was no direct proof that failure to follow the directions caused excess slipperiness, but there was evidence that appellee did not follow the directions and did not strip the floor on a regular basis.
In granting appellee’s motion for summary judgment, the trial judge stated:
I am going to grant your motion for summary judgement. ... I don’t see proximate cause. I don’t think there is a nexus that’s been established at this state, proof meeting proof, that the actual slippery floor, failure to follow those conditions caused the floor to be slippery. I think that there is some evidence that there was floor being slippery [sic] by the fact that [appellant] testified to that and also [appellant’s] witness. ... I think [appellant’s attorney] has proved that the Plaintiff [sic] was negligent. But I think the problem that I have that there is no proximate cause between the negligence and the damages. There is nothing that I see that would suggest that the negligent actions of the Defendant actually caused the floor to be slippery. There is circumstantial evidence that she fell, but I think that the cases are pretty strict in saying that the fact that the floor is slippery is not enough, and the fact that she fell is not enough of a nexus between the two.
In Capel v. Allstate Insurance Co., 78 Ark. App. 27, 42, 77 S.W.3d 533, 543 (2002), we held:
To demonstrate a prima facie cause of action in tort, a plaintiff must establish that damages were sustained, that the defendant was negligent, and that the defendant’s negligence was the proximate cause of the damages sustained. Proximate cause is “a cause which, in a natural and continued sequence, produces damage, and without which the damage would not have occurred.” Proximate cause is typically a fact question; however, when the evidence opposing the motion for summary judgment is insufficient to raise a question of fact, summary judgment is appropriate. Proximate cause may be shown by direct or circumstantial evidence if the facts proved are of such a nature and are so connected and related to each other that the conclusion may be inferred.
(Citations omitted.)
Mere proof that a floor is slippery will not defeat summary judgment; there must be proof of a substance on the floor such as water, grease, or wax. Kelley v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997). In National Credit Corp. v. Ritchey, 252 Ark. 106, 110, 477 S.W.2d 488, 491 (1972), our supreme court quoted, with approval, the following language from Nicola v. Pacific Gas & Electric Co., 50 Cal. App.2d 612, 123 P.2d 529 (1942):
If wax, or as in the present case, both wax and soft soap, are applied to the floor, it must be in such manner as to afford reasonably safe conditions for the proprietor’s invitees, and if such compounds cannot be used on a particular type of floor material without violation of the duty to exercise ordinary care for the safety of invitees, by reason of the dangerous conditions they create, they should not be used at all. Of course slipperiness is an elastic term. From the fact that a floor is slippery it does not necessarily result that it is dangerous to walk upon. It is the degree of slipperiness that determines whether the condition is reasonably safe. This is a question of fact.
Although the facts in Richey arose in the context of the denial of a directed-verdict motion at a jury trial, we find that the supreme court’s analysis is pertinent to our decision as to whether or not summary judgment was properly granted in that it held that in determining whether a condition is reasonably safe, the degree of slipperiness is a question of fact. If that question is sufficient to withstand a motion for directed verdict, surely it presents a question of fact sufficient to allow appellant to have the opportunity to present her case in court.
The supreme court upheld the reasoning set forth in Richey, supra, in Thompson v. American Drug Stores, 326 Ark. 536, 539, 932 S.W.2d 333, 335 (1996):
In slip-and-fall cases involving a foreign substance on the floor, the plaintiff must prove either that the presence of the substance upon the floor was the result of the defendant’s negligence, or, that the substance had been on the floor for such a length of time that the defendant’s employees knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). A plaintiff may also allege that a defendant has been negligent in cleaning or waxing a floor. In National Credit Corp. v. Ritchey, 252 Ark. 106, 477 S.W.2d 488 (1972), we quoted, with approval, . . . language from Nicola v. Pacific Gas & Electric Co., 50 Cal. App.2d 612, 123 P.2d 529 (1942):
We also impliedly recognized such a theory of recovery in J.M. Mulligan’s Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1989), but said that the plaintiff did not prove her case.
In the present case, appellee admitted that the floor had been waxed on the day of the event; therefore, there was no question that a substance, wax in this case, was present on the floor. Although appellee puts forth appellant’s admission in her deposition that she had consumed some alcohol prior to her fall, appellant also places into question whether appellee’s failure to follow the instructions for applying the wax caused the floor to become slippery, causing her to fall. We hold that summary judgment was inappropriate under the facts presented because there is a question of fact as to whether the wax or the manner in which it was applied was the proximate cause of appellant’s fall.
Reversed and remanded.
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Larry D. Vaught, Judge.
Appellant Wal-Mart Stores, Inc., appeals a jury verdict awarding appellees John Kilgore and Kelli Ann Kilgore a total of $840,000. On appeal, appellant argues that the circuit court erred by (1) refusing to grant appellant’s motions for a directed verdict, and (2) preventing appellant from cross-examining appellee John Kilgore, as an exception to the collateral-source rule, in order to impeach his testimony that his medical expenses were personally paid. We affirm.
Appellee John Kilgore presented a prescription for Cephal-exin and Claritin D 24 Hour at the Siloam Springs Wal-Mart pharmacy on or about November 19, 1998. Instead of receiving his prescription, however, he mistakenly was given a bag containing medication meant for another customer who also had the last name “Kilgore.” The medicine he received was Triamterene Hydrochlorothiazide, commonly used as blood pressure or fluid retention medication, and Synthroid, used to treat thyroid disorders. Appellee John Kilgore took each of the medications for approximately two days, allegedly ingesting six Triamterene Hy-drochlorothiazide capsules and two Synthroid pills. The mistake was discovered by appellee Kelli Ann Kilgore after her husband’s symptoms did not improve.
Appellees filed a negligence suit against appellant on November 20, 2000, alleging that the medication error resulted in post-traumatic stress disorder for appellee John Kilgore. At the conclusion of appellees’ case, appellant moved for directed verdict, which was denied by the circuit court. Appellant renewed its motion for directed verdict at the close of all evidence, but the motion was again denied. After a four-day trial, the jury returned a total verdict in favor of appellees in the amount of $840,000.
Judgment was entered on September 12, 2002. Subsequently, appellant filed a motion for judgment notwithstanding the verdict or in the alternative (1) a motion for a new trial, or (2) a motion for a remittitur, all of which were denied by the circuit court. From the decision of the circuit court comes this appeal.
I. Denial of Appellant’s Motions For Directed Verdict
Appellant failed to properly preserve its first argument for review. Rule 50(a) (2003) of the Arkansas Rules of Civil Procedure requires that a party moving for a directed verdict state specific grounds in order to bring the issue to the trial court’s attention. See Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003). In the instant case, appellant failed to make a sufficiently detailed motion for directed verdict, stating in pertinent part that “the plaintiff hasn’t made the cause of action in this case because he hasn’t showed negligence and the negligence all falls on the plaintiff at all opportunities to not take the medicine.” Appellant never articulated that the basis for its motion was the alleged technical failure of the experts to opine with a “reasonable degree of medical certainty” in connection with the element of proximate cause. Appellant’s failure to specify in what respect the evidence was deficient caused the motion not to be specific enough to preserve the issue for appeal.
Nevertheless, even if this argument had been preserved for appeal, appellant could not prevail on this issue. A directed-verdict motion is a challenge to the sufficiency of the evidence, and when reviewing a denial of a motion for a directed verdict, this court determines whether the jury’s verdict is supported by substantial evidence. See, e.g., D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 76 S.W.3d 254 (2002). Substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond mere suspicion or conjecture. Id. A trial court is to evaluate the motion for directed verdict by deciding whether the evidence would be sufficient for the case to go to the jury. See Wal-Mart Stores, Inc. v. Tucker, supra.
To establish a prima facie case of negligence, the plaintiff must demonstrate that the defendant breached a standard of care, that damages were sustained, and that the defendant’s actions were a proximate cause of those damages. Barriga v. Arkansas & Missouri R.R. Co., 79 Ark. App. 358, 87 S.W.3d 808 (2002). “Proximate cause” is defined, for negligence purposes, as that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Id. Appellant alleges that the circuit court erred by failing to grant its motion for directed verdict because the appellees failed to establish proximate cause.
Appellant argues that this case is an action for damages from a medical injury resulting from a misfilled prescription, which is governed by the Medical Malpractice Act, and that appellee’s burden of proof is fixed by Ark. Code Ann. § 16-114-206 (1987). In interpreting Ark. Code Ann. § 16-114-206, the supreme court has held that in any action for medical injury, the plaintiff must prove the applicable standard of care; that the medical provider failed to act in accordance with that standard; and that such failure was a proximate cause of the plaintiffs injuries. See Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002). In such cases, it is not enough for an expert to opine that there was negligence that was the proximate cause of the alleged damages. Id. The opinion must be stated within a reasonable degree of medical certainty or probability. Id.
Appellees called two witnesses to testify that the ingestion of the medication mistakenly dispensed by appellant was the proximate cause of Mr. Kilgore’s post-traumatic stress disorder. Appellant claims that neither of the medical experts testified regarding proximate cause with the requisite degree of medical certainty, and without it, the jury was forced to speculate regarding the proximate cause of Mr. Kilgore’s injury. Accordingly, appellant claims that the underlying jury verdict is not supported by substantial evidence and that the circuit court’s denial of appellant’s motions for directed verdict and post-trial motion for judgment notwithstanding the verdict should be reversed and the case dismissed.
Appellees called Mr. Kilgore’s physician, Scott Stinnett, M.D., and asked him to offer his opinion regarding the direct cause of Mr. Kilgore’s post-traumatic stress disorder, to which he opined:
Q. Do you have an opinion as to the cause of his posttraumatic stress disorder?
A. His symptoms, again, post the incident with the medication. He had not had symptoms prior to that.
Appellant claims this testimony was not sufficiently specific, but appellees point to Dr. Stinnett’s testimony that post-traumatic stress disorder tends to occur after a particular event toward a particular time, from a specific cause, and that a medication error would possibly be such a cause. They assert that Dr. Stinnett made it clear that post-traumatic stress disorder occurred as the result of a specific cause, and further that his testimony leaves no doubt as to what the specific cause was in Mr. Kilgore’s case — the ingestion of the wrong medication or learning the possible negative physical effects of doing so.
Additionally, appellees called clinical psychotherapist Rodney Goodsell on the issue of proximate cause, and the following testimony occurred:
Q. Do you have an opinion as to what caused the posttraumatic stress disorder?
A. Yes, sir, I do.
Q. And what is that opinion?
A. I believe that he was, uh, from an overactive thyroid.
Q. As a result of the medication error?
A. Yes, sir.
Appellant contends that these responses fall short of the requisite language needed to establish proximate cause by medical injury. Appellant claims that simply having symptoms after an event occurred does not prove that the event was the proximate cause of the symptoms. Also, appellant maintains that neither of the experts qualified his answer as to the standard “within a reasonable degree of medical certainty,” and thus failed to establish proximate cause. Appellant asserts that although the appellees brought the case as a simple negligence suit and never pled the Medical Malpractice Act in their complaint, they still asked their experts to opine at a higher level, within a reasonable degree of medical certainty, but that the experts failed to do so.
We hold that this is a simple negligence claim, and that as such, “expert testimony is required only when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, when the applicable standard of care is not a matter of common knowledge, and when the jury must have the assistance of experts to decide the issue of negligence.” Watts v. St. Edward Mercy Med. Ctr., 74 Ark. App. 406, 49 S.W.3d 149 (2001). Mr. Kilgore ingested the wrong medicine, provided to him by appellant’s pharmacist. Later he learned that he had taken the wrong medicine and that it could have seriously injured or killed him. Appellees correctly assert that the jury could reasonably conclude that this information was the trauma that led to his post-traumatic stress disorder and that there was substantial evidence to support that conclusion.
Further, in a pre-trial response to a motion in limine to exclude testimony from one of appellant’s experts, appellant specifically asserted that this is not a medical malpractice case and that Ark. Code Ann. § 16-114-206 is irrelevant. Appellees argued that appellant should not be allowed to “have it both ways,” and that the circuit court proceeded with the case as an ordinary negligence action “by invitation” of the appellant.
Arkansas does not require any specific “magic words” with respect to expert opinions, and they are to be judged upon the entirety of the opinion, not validated or invalidated on the presence or lack of “magic words.” See Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). Even in medical malpractice cases proximate cause may be shown from circumstantial evidence, and such evidence is sufficient to show proximate cause if the facts proved are of such a nature and are so connected and related to each other that the conclusion may be fairly inferred. See Stecker v. First Commercial Trust Co., 331 Ark. 452, 962 S.W.2d 792 (1998). Appellees maintain that the traumatic event in this case was either Mr. Kilgore taking the wrong medication or learning that his taking it could have caused him serious harm. Whichever it was is immaterial, as the two are so interconnected.
Based on our standard of review, we hold that there was substantial evidence as to the elements of the negligence claim so as to survive appellant’s motion for a directed verdict. We affirm on this point.
II. Collateral-Source Testimony
The collateral-source rule prohibits the admissibility of evidence showing that the injured person received payments from another source, unless relevant for some purpose other than mitigation or reduction of damages. Ebbing v. State Farm Fire & Cas. Co., 67 Ark. App. 381, 1 S.W.3d 459 (1999). There are four limited exceptions to the rule, as set out in Montgomery Ward & Co., Inc. v. Anderson, 334 Ark. 561, 976 S.W.2d 382 (1998) (citing Evans v. Wilson, 279 Ark. 224, 650 S.W.2d 569 (1983)):
They are cases in which a collateral source of recovery may be introduced (1) to rebut the plaintiffs testimony that he or she was compelled by financial necessity to return to work prematurely or to forego additional medical care; (2) to show that the plaintiff had attributed his condition to some other cause, such as sickness; (3) to impeach the plaintiff s testimony that he or she had paid his medical expenses himself; (4) to show that the plaintiff had actually continued to work instead of being out of work, as claimed. [Evans v. Wilson], 279 Ark. at 226, 650 S.W.2d at 570.
334 Ark. at 566, 976 S.W.2d at 384-85.
Appellant argues that this case falls squarely within this third recognized exception to the collateral-source rule. Appellee John Kilgore testified that his prescriptions were personally costing him between $600 and $630 per month, and that it was a cost he would have to bear as long as he was on medication. He also stated that he arrived at the prescription cost because he and his wife personally paid for the medication and he had calculated the cost of the prescriptions based on these payments, he claimed to have canceled checks evidencing the amount he had personally paid.
Appellant asserts that the appellees did not pay the above-referenced prescription costs, but rather paid roughly fifty-two dollars a month in insurance co-payments, a fraction of those costs. The remaining portion was otherwise covered by insurance. Appellant contends that the jury was, in effect, misled by this testimony into believing that the cost was personally incurred by appellees. It was also this testimony that served as the basis for testimony from a certified public accountant regarding future prescription costs. Appellant argues that this resulted in an unfair gain by presenting an image that appellees would be paying for the future medical costs. Accordingly, appellant asserts it should have been allowed to cross-examine appellees on this issue for impeachment purposes of the alleged false and misleading testimony.
As previously mentioned, appellant relies on Evans v. Wilson, supra, for the premise that proof of a plaintiff s collateral income may be admissible to impeach a plaintiffs testimony that he had paid his medical expenses himself. Id. (citing Fahler v. Freeman 241 N.E. 2d 394 (Ind. App. 1968)). Although this exception has been mentioned in at least two Arkansas Supreme Court cases, it was not applied in either Montgomery Ward & Co., Inc. v. Anderson, supra, or Evans v. Wilson, supra, nor does appellant cite any other Arkansas case where the sole issue related to the plaintiff s credibility with regard to the amount of damages.
Appellant attempts to draw a distinction between a plaintiff testifying that he felt “obligated” to pay a medical bill, see Patton v. Williams, 284 Ark. 187, 680 S.W.2d 707 (1984), as compared to Mr..Kilgore, who repeatedly testified that he actually did pay the full amount of the prescription every month and would continue to incur the cost as long as he was on the medicine. Appellant maintains that this testimony misrepresented both current and future cost obligations, and without it, there would have been no factual basis in the record to support the accountant’s present-value calculation. Appellant alleges that the circuit court’s enforcement of the collateral-source rule in the instant case was an abuse of discretion and a reversible error.
Based on the reasoning in Patton v. Williams, supra, appellee John Kilgore was entitled to testify as to the amount of his prescription bills although they actually may have been paid, at least in part, by a collateral source. The exceptions to the collateral-source rule that exist are to prevent a party from taking unfair advantage of an insurance exclusionary rule. For an exception to apply, the use of the exclusionary rule must be misleading on some point other than whether there is insurance. Id. When a person incurs medical expenses or prescription costs, he or she is responsible to pay the bill. Appellees correctly assert that whether those expenses are paid for from cash in his or her wallet, money from friends, or proceeds from an insurance policy does not matter. Id. The individual is still entitled to say that he paid them. Id.
Here, appellant’s counsel requested to cross-examine appellee John Kilgore about how much he paid for the medication, which would have detailed that he and his wife were paying fifteen dollars or seven dollars for the insurance co-payment on the medicine. For the exception to apply, the information had to come in for some other purpose than merely to show that there was insurance. Appellant attempted to utilize this exception to the collateral-source rule solely for the purpose of mitigating its damages. It is just this type of practice that the collateral-source rule prohibits. To hold otherwise would eviscerate the core protection of the collateral-source rule. Accordingly, we affirm on this point.
Affirmed.
Stroud, C.J., and Bird,J., agree.
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Andree Layton Roaf, Judge.
Jerry M. Surratt appeals from the trial court’s order interpreting a provision in the parties’ 1988 settlement agreement that pertained to the division of his military retirement benefits. The trial court found that the agreement required Jerry to continue paying appellee Barbara Joe Surratt a sum equal to one-half of the amount of his military retirement income as of the time of the parties’ 1988 divorce, despite the fact that Jerry’s disability rating had been subsequently increased to 100%, with a resulting change in his monthly income to 100% disability pay. On appeal, Jerry argues that the trial court erred in construing the property-settlement agreement as obligating him to make monthly payments to Barbara, even though he receives only military disability benefits, because: (1) the Uniformed Services Former Spouses’ Protection Act (Act) prohibits it; (2) Barbara has remarried, and thus, is ineligible for alimony; (3) the property-settlement agreement, having been drafted by Barbara’s attorney, should have been construed against her. We affirm on all points.
The parties entered into a property-settlement agreement that was incorporated into their 1988 divorce decree. At the time of the divorce, appellant Jerry Surratt was drawing both military retirement and disability benefits, having been rated 20% disabled. The settlement agreement provided in part:
Barbara shall be entitled to receive one-half of Jerry’s military monthly retirement income as it was at the time of the Complaint for Divorce being filed and that should there be any cost of living increases that Barbara will be entided to one-half of the same. That the said retirement income will not fall below the amount that Jerry was receiving at the time of filing this suit even if Jerry’s disability retirement increases. Jerry will receive 100 per cent of the monthly retirement income that is related to and labeled as disability income and Barbara shall receive one-half of the balance of the monthly retirement income as stated above as well as any increases thereto but never will receive less than the amount that Jerry is receiving as of the day of the Complaint being filed and that Barbara will be paid directly from the U.S. Government, if possible and in the e venfthaC the regular retirement reduced belowlhe amount Jeny is receiving at the time of filing' then Jen y shall pay the difference.
The parties placed their initials beside the phrase that was marked out, which stated: “and in the event that the regular retirement reduced below the amount Jerry is receiving at the time of filing then Jerry shall pay the difference.”
The Department of Veterans Affairs notified Jerry in July 2001 that he had received a 100% disability rating, retroactive to November 2, 2000, and that he would henceforth receive an increase in his disability benefits.with a concurrent termination of his military retirement pay. Barbara received her share of Jerry’s retirement benefits until August 2001, after which she received nothing. Barbara filed a petition for citation of contempt against Jerry in January 2002 and sought judgment for the arrearages. In response, Jerry argued that, according to the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408 (2000 and Supp. I), Barbara was ineligible for any share of his disability income, and that, because she had remarried, she could not receive alimony.
At the hearing, both parties testified about their understanding of the property-settlement agreement. Barbara testified that she had believed that Jerry would be obligated to continue paying her at least as much as she received at the time of the divorce, even if Jerry later received only disability pay. She said that Jerry had, in fact, told her that the agreement obligated him to do so. She also stated that her attorney had explained to her that the phrase that had been marked through had the same effect as the preceding sentences. Jerry testified that he is now receiving 100% disability income of $2,229 per month and that his understanding was to the contrary, that, if the “government” could not pay Barbara directly, she would not get anything. The trial court ruled that the property-settlement agreement, which became part of the divorce decree, guaranteed a minimum payment to Barbara and anticipated that Jerry would continue to receive his disability payments. The trial court entered an order awarding judgment in the amount of $5,976.95 to Barbara for the arrearages and finding that the property-settlement agreement obligated Jerry to make monthly payments of $483 until the arrearages are paid and, thereafter, monthly payments of$383, representing one-half of the amount of the retirement pay at the time of the divorce decree. That order is the basis for this appeal.
The standard of review in equity cases is de novo. Tyson Foods, Inc. v. Conagra, Inc., 349 Ark. 469, 79 S.W.3d 326 (2002). We review both law and fact and, acting as judges of both law and fact as if no decision had been made in the trial court, sift the evidence to determine what the finding of the trial court should have been and render a decree upon the record made in the trial court. Id. The trial court’s findings of fact will not be reversed unless they are clearly erroneous. Id.
In Arkansas, military-retirement benefits are marital property. Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984). In 1982, Congress enacted the Uniformed Services Former Spouses’ Protection Act, which provides that a court may treat disposable “retired pay” as the property of the member and his spouse in accordance with the law of the jurisdiction of that court. 10 U.S.C. § 1408(c)(1). The United States Supreme Court held in Mansell v. Mansell, 490 U.S. 581 (1989), that the Act excludes from division in divorce military retired pay that has been waived to receive veterans’ disability benefits, leaving the state courts free to divide only “disposable” retired pay.
Since Mansell, a number of Arkansas cases have addressed issues relating to division of assets where one of the parties to a divorce is receiving veterans’ disability benefits. In Murphy v. Murphy, 302 Ark. 157, 787 S.W.2d 684 (1990),.the husband’s entire military pension was drawn as disability payments amounting to $1,554 per month, and the chancellor noted this fact in ordering him to pay $361 per month to the wife. On appeal, the husband argued that the chancellor erred in requiring him to pay alimony out of his disability benefits. Although it agreed that the wife was not entitled to direct payments for alimony under the Act, because the husband had no disposable retirement pay as defined in that Act, and his disability benefits were unavailable to the wife for alimony payments,- the Arkansas Supreme Court rejected his argument. It stated: “Even so, such conclusions do not preclude the trial court from ordering appellant to pay alimony, and once awarded, the FSPA does not relieve a retiree from paying such alimony obligations. See 10 U.S.C. § 1408(d)(6) (1982).” 302 Ark. at 159, 787 S.W.2d at 685.
In Womack v. Womack, 307 Ark. 269, 818 S.W.2d 958 (1991), the Arkansas Supreme Court affirmed the chancery court’s award of a $19,402 judgment to the wife and its finding that the husband was in contempt of the prior 1985 divorce decree, which had stated that the husband was to pay the wife $425 per month, one-half of the husband’s military disability benefits, as permanent alimony “in lieu of her right to receive said amount as a distribution of marital property.” 307 Ark. at 269-70, 818 S.W.2d at 959. On appeal, the husband argued that the chancellor had actually made a property division of his disability benefits in violation of the Act. Citing Murphy v. Murphy, supra, the supreme court disagreed, noting that the chancellor had made an award of alimony and nothing more; he did not order a division of the husband’s benefits, nor did he direct that alimony be withheld from them. The court held that the Act’s exclusion of disability benefits from division or alimony does not prevent a trial judge from awarding alimony or relieve a military retiree of satisfying that obligation.
We dealt with the Act in Hapney v. Hapney, 37 Ark. App. 100, 824 S.W.2d 408 (1992). After twenty-four years of marriage, the parties were divorced, and the husband’s military retirement was found to be marital property subject to division. By agreement of the parties, the wife was awarded $300 per month as her share of his retirement pay. Later, the husband’s disability benefits were increased, causing a concomitant reduction in his military retirement pension. After the husband elected to take an increase in his disability benefits, which caused his retirement benefits to be reduced to $400 per month, the direct payments to the wife were reduced to $200, pursuant to the terms of the Act. The wife filed a petition for contempt in the chancery court, and the chancellor found the husband in contempt and entered a judgment for the arrearages.
One of the husband’s arguments on appeal was that the chancellor violated the Act by awarding the wife military retirement pay that he had waived in order to receive disability benefits. We disagreed, explaining:
We find no merit to this contention. Although the United States Supreme Court has held that the Uniformed Services Former Spouse’s Protection Act does not permit state courts to treat certain military retirement pay, waived by the retiree in order to receive (or increase) Veteran’s disability benefits, as property divisible upon divorce, Mansell v. Mansell, 490 U.S. 581 (1989), the appellant’s argument lacks merit because the record in the case at bar does not demonstrate that the $300.00 per month award constituted a division of his Veteran’s disability benefits. The divorce decree did not purport to award the appellee a portion of the appellant’s disability benefits, but instead was limited to the appellant’s military retirement benefits. Moreover, as noted earlier, in the order appealed from the chancellor found that the appellee’s agreement to accept $300.00 per month, in lieu of the larger amount to which she was entitled, was made in consideration of concessions made in the parties’ overall property settlement, including other matters relating to the division of marital property and alimony. Because the parties’ original agreement, as submitted to the chancellor and incorporated into his decree, has not been included in the abstract before us, we are unable to determine the percentage of the $300.00 award which was based on military retirement benefits, as opposed to other consideration, or to say that the chancellor erred in so construing the agreement of the parties. Under these circumstances, we regard the chancellor’s action as a clarification of the award which was originally intended, rather than a modification, and the appellant has presented no evidence demonstrating that the chancellor’s interpretation is clearly erroneous. See Ford v. Ford, 30 Ark. App. 147, 783 S.W.2d 879 (1990). Based on this record, we cannot say that the chancellor’s interpretation of the decree is clearly wrong, and we affirm.
37 Ark. App. at 102-03, 824 S.W.2d at 409-10.
The supreme court dealt with the Act again in Ashley v. Ashley, 337 Ark. 362, 990 S.W.2d 507 (1999). The parties were divorced in 1994, and the wife was awarded alimony of $90 per month and one-half of the husband’s disposable military retirement pay as her share of the marital property. At the time of the divorce, the husband was rated 30% disabled and received disabil ity benefits. He appealed from that rating and ultimately was rated as 100% disabled. He chose to waive his retirement pay so that he could receive full disability benefits, which reduced his disposable retirement pay to $30 and caused the government to stop sending payments to the wife. The wife filed a complaint in chancery, seeking reinstatement of the $428.25 payment previously ordered and for arrearages. In the alternative, she pled that, if such relief was denied, her original alimony award should be increased. Relying on Hapney v. Hapney, supra, the chancellor reinstated the $428.25 payments and awarded her $5,396.65 in arrearages. On appeal, the supreme court held that the chancellor had violated the Act in enforcing the wife’s originally-assigned share of the husband’s disposable retirement pay. However, it remanded the case to permit the trial court to consider the wife’s request for an increase in alimony.
We find Ashley v. Ashley to be distinguishable from this case because, in Ashley, there was no indication that the parties entered into a property-settlement agreement. Here, the parties did enter into such a contract, and Barbara’s bargained-for property rights flowing from that contract are the basis for her claim.
Thus, in the Arkansas cases in which such payments were ordered to be continued, they were deemed to be alimony, or alimony was used as a replacement for their termination. The next question, therefore, is whether such payments may be continued in situations such as this, where the payments are not in the nature of alimony but, instead, are periodic distributions of marital property pursuant to a settlement agreement.
We believe that there is a sound basis for concluding that, in this case, the payments should be continued. Since Mansell v. Mansell, supra, was decided, postjudgment waivers of retirement pay have caused problems for courts across the nation, see Krempin v. Krempin, 70 Cal. App. 4th 1008, 83 Cal. Rptr. 2d 134 (1999), and there is a growing trend to ensure that former spouses’ property interests are protected in the event of a future award of disability benefits to the service member. Id. A majority of state courts, on one theory or another, take equitable action to compensate the former spouse when that spouse’s share of the retirement pay is reduced by the other spouse’s postjudgment waiver of retirement benefits. Id. In some cases, the contracts contain indemnity provisions, and the courts have given the spouse the benefit of the original bargain or order with respect to retirement pay, even if the service member’s disability benefits would be a source of the payments. Id. Because the service member is free to satisfy the indemnity obligation with assets other than the disability benefits, there is no division of those benefits in contravention of Mansell v. Mansell, supra. Id.; see Scheidel v. Scheidel, 129 N.M. 223, 4 P.3d 670 (Ct. App. 2000).
Even in the absence of indemnity provisions, the courts have reached the same result, finding that the service member has breached the agreement and should not be permitted to profit by that breach. In such cases, the following statement is typical:
The judgment in this case does not divide the defendant’s VA disability benefits in contravention of the Mansell decision; the judgment merely enforced the defendant’s contractual obligation to his former wife, which he may satisfy from any of his resources. Nothing in 10 U.S.C. § 1408 or in the Mansell case precludes a veteran from voluntarily entering into a contract whereby he agrees to pay a former spouse a sum of money that may come from the VA disability benefits he receives..
Krapf v. Krapf, 439 Mass. 97, 108, 786 N.E.2d 318, 326 (2003); accord Abernethy v. Fishkin, 699 So. 2d 235 (Fla. 1997). Generally, such cases hold that, when a settlement agreement divides military retirement benefits, the nonmilitary spouse has a vested interest in his or her portion of those benefits as of the date of the court’s decree. See Johnson v. Johnson, 37 S.W.3d 892 (Tenn. 2001). That vested interest cannot thereafter be unilaterally diminished by an act of the military spouse. Id.; accord Harris v. Harris, 195 Ariz. 559, 991 P.2d 262 (Ct. App. 1999); Dexter v. Dexter, 105 Md. App. 678, 661 A.2d 171 (1995); see also Hillyer v. Hillyer, 59 S.W.3d 118 (Ct. App. Tenn. 2001).
In light of these decisions, we reject Jerry’s argument that the trial court’s action violated the Act. In this case, the settlement agreement, divorce decree, and the trial court’s order of enforcement did not purport to divide his disability benefits. Therefore, the Act and Mansell v. Mansell were not violated, and the nature of the sources with which Jerry may satisfy his contractual obligation to Barbara are beside the point. When the parties entered into the settlement agreement, Barbara received a vested property interest in her right to a portion of Jerry’s retirement benefits. Jerry could not, by later waiving those benefits in order to receive disability payments, unilaterally deprive Barbara of her property. Thus, we affirm the trial court’s interpretation of the settlement agreement and its enforcement of Barbara’s rights pursuant to it.
Characterizing the payments at issue as alimony, Jerry also argues that Barbara cannot receive them because she has remarried. It is true that Ark. Code Ann. § 9-12-312(a) (Repl. 2002) states in relevant part that, when a decree is entered that orders the payment of alimony, unless otherwise ordered by the court or agreed to by the parties, the liability for alimony shall automatically cease upon the remarriage of the person who was awarded the alimony. However, the payments at issue are not equivalent to alimony. The settlement agreement, divorce decree, and the order from which this appeal arises did not refer to alimony. Instead, these payments are properly characterized as periodic distributions of marital property. See Johnson v. Johnson, supra. We therefore reject this argument.
Construction oj the Agreement
In his third and final point, Jerry argues that the settlement agreement is ambiguous because of the phrase that was marked out and thus, having been drafted by Barbara’s attorney, must be construed against her. Questions relating to the construction, operation, and effect of such agreements are governed, in general, by the rules and provisions applicable in the case of other contracts generally. Sutton v. Sutton, 28 Ark. App. 165, 771 S.W.2d 791 (1989). The trial court has the power to construe, clarify, and enforce the parties’ settlement agreement. See Rogers v. Rogers, 83 Ark. App. 206, 121 S.W.3d 510 (2003); Grider v. Grider, 62 Ark. App. 99, 968 S.W.2d 653 (1998). In regard to the construction of terms in an agreement, the initial determination of the existence of an ambiguity rests with the trial court. Pittman v. Pittman, 84 Ark. App. 293, 139 S.W.3d 134 (2003). When a contract is unambiguous, its construction is a question of law for the court. Fryer v. Boyett, 64 Ark. App. 7, 978 S.W.2d 304 (1998). A contract is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. Id. When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. Pittman v. Pittman, supra.
While this property-settlement agreement may not be a model of clarity, see Johnson v. Johnson, supra, we do not believe that it is ambiguous. In our view, even without the clause that was redacted, it is susceptible to only one reasonable construction: that Jerry is obligated to pay Barbara, at a minimum, one-half of the amount that he was receiving as retirement pay at the time of the divorce, regardless of whether he continues to draw “disposable retired pay,” as defined in the Act. Barbara was to receive payment directly from the government “if possible.” However, Jerry assumed a personal obligation to continue these periodic distributions of marital property to Barbara, even if they could not legally be paid directly by the military. We hold that the settlement agreement unambiguously requires Jerry to continue these payments, and because the agreement is not ambiguous, it need not be construed against Barbara.
Affirmed:
Hart and Crabtree, JJ., agree.
To receive disability benefits, a military retiree must waive the corresponding amount of retired pay. Because disability benefits are exempt from federal, state, and local taxes, there is an incentive to waive retired pay in favor of disability pay. See Mansell v. Mansell, 490 U.S. 581 (1989). | [
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Olly Neal, Judge. Appellant,
Clarendon National Insurance Company, (Clarendon) appeals the grant of the appellees’, Stanley Roberts and Rick Turman, motion for summary judgment. Clarendon raises the following issues on appeal: (1) the trial court erred when it failed to find that the policy language was a condition precedent to coverage and that the appellees had failed to comply with the language of the policy; (2) the trial court erred in finding that there was an enforceable insurance contract when the appellees failed to pay the insurance premium. We affirm.
The appellees own thoroughbred racing horses. Clarendon is an insurance company that issues animal mortality policies. The appellees had an animal mortality policy with Clarendon that provided coverage for all of their animals. The policy also contained an automatic extension provision that provided for coverage of subsequently acquired animals.
On February 5, 2000, the appellees purchased a horse, “Ack-adackadoo,” at a $20,000 claiming race. During the race, the horse was injured and had to be put to death that same day. The appellees notified Clarendon’s agent of the acquisition and loss on February 28, 2000. Clarendon denied coverage, contending that the terms of the automatic extension provision were not complied with, in that the appellees had failed to pay the premium on the new acquisition and failed to provide notice of the acquisition within five days of the actual acquisition. The appellees filed suit alleging that the policy provided automatic coverage. Both parties moved for summary judgment. Clarendon argued that compliance with the terms of the automatic extension provision was a condition precedent to coverage. The appellees argued that notice was irrelevant because the automatic extension provision provided for automatic coverage.
The trial court denied Clarendon’s motion for summary judgment and granted the appellees’ motion for summary judgment. The trial court found that the policy provided automatic coverage and awarded the appellees $20,000 for their loss. Clarendon only appeals the grant of the appellees’ motion for summary judgment.
Normally, on a summary-judgment appeal, the evidence is viewed in the light most favorable to the party resisting the motion, and any doubts and inferences are resolved against the moving party. Tunnel v. Progressive Northern Ins. Co., 80 Ark. App. 215, 95 S.W.3d 1 (2003). But in a case where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Id. When parties file cross-motions for summary judgments, as was done in this case, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. Id.
The policy language at issue provides:
C. AUTOMATIC EXTENSION FOR SECTION III COVERAGE
1. If YOU insure all of YOUR animals (that YOU insure) with US, all animals subsequently acquired through claiming or bona fide auction will be covered automatically by this policy. OUR limit of liability for such animals will not exceed the lesser of:
a. the claiming price or the final bid; or
b. $50,000.00
2. This amount of insurance
a. will apply only to YOUR interest in the animal; and
b. is subject to OUR receiving notice that insurance is desired within 5 calendar days from time of acquisition, and in consideration of the premium paid.
(Emphasis added.) A cardinal rule of insurance law is that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer. Keller v. Safeco Ins. Co., 317 Ark. 308, 877 S.W.2d 90 (1994). Any ambiguity found in the insurance contract is to be construed against the insurer since the insurer wrote the policy without any consultation with the insured. Countryside Cas. Co. v. Grant, 269 Ark. 526, 601 S.W.2d 875 (1980). An ambiguity exists when a provision is susceptible to more than one reasonable interpretation. Keller v. Safeco Ins. Co., supra.
Clarendon argues that the failure to give notice of either the acquisition or loss of the horse within five days prevented any recovery under the policy. Clarendon further argues that compliance with the terms of the provision was a condition precedent to coverage. In contrast the appellees read the provision as providing automatic coverage for a period of five days following the acquisition of an animal; they further interpret the language to read that notice of acquisition and loss is only necessary to support proof of loss and a demand for payment. The appellees also read the provision as requiring them to notify Clarendon prior to expiration of the five-day automatic insurance period if they desire to extend coverage beyond the five-day period.
The language in the provision here at issue is susceptible to either interpretation; therefore, the language in the provision is ambiguous. Thus, construing the language of the provision against Clarendon, we hold that under the facts herein, the horse was insured at the time of acquisition pursuant to the automatic insurance provision. The horse was also insured at the time of the loss, which was only a few minutes after the horse’s acquisition. At no time prior to the loss did the horse become uninsured.
In Horace Mann Mutual Casualty Co. v. Bell, 134 F.Supp. 307 (W.D. Ark. 1955), the district court interpreted an automatic insurance provision involving newly acquired vehicles. The district court held that despite having partial coverage on the newly acquired vehicle with another company the insured was not precluded from having coverage under the automatic insurance policy that was at issue. The district court explained:
[TJhere is nothing to require the insured to insure his newly acquired vehicles with the company in order to take advantage of the 30-day automatic insurance on the new vehicle. For that matter, he may wait 30 days, having free automatic insurance during that time, and then purchase insurance on the new vehicle from another company.
Id. at 312. The provision at bar is analogous to an automatic insurance provision found in an automobile policy; therefore, appellees did not have to do anything to take advantage of the five-day automatic insurance coverage, and following the expiration of the five-day automatic insurance period, appellees were free to explore other insurance opportunities.
Clarendon also argues that the trial court erred when it found there was an enforceable contract of insurance on the horse when the appellees had failed to tender an insurance premium. An insurance policy is a contract between the insurer and insured. Southern Farm Bureau Cas. Ins. Co. v. Craven, 79 Ark. App. 423, 89 S.W.3d 369 (2002). The premium is the consideration for the insurance. Farm Bureau P. H. v. FM. Bureau Mut. Ins. Co., 335 Ark. 285, 984 S.W.2d 6 (1998). In situations involving automatic insurance on vehicles, it has been said that the consideration is the premium or premiums paid by the insured on his previously owned vehicles. Horace Mann Mut. Cas. Co. v. Bell, supra. As stated earlier, the present situation is analogous to that involving automatic insurance on a vehicle. Accordingly, the proper consideration was the premium or premiums paid by the appellees on their other animals. Therefore, the parties had an enforceable contract.
We hold that the trial court did not err when it failed to find that the policy language was a condition precedent to coverage and when it found that there was an enforceable insurance contract. Therefore, the trial court’s grant of the appellees’ motion for summary judgment was proper, and we affirm.
Affirmed.
Stroud, C.J., and Crabtree J., agree. | [
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Andree Layton Roaf, Judge.
Appellant, David M. Dye, was tried and convicted by a jury of twenty-three counts of possession of child pornography and three counts of rape. He was sentenced to consecutive terms of imprisonment totaling 250 years in the Arkansas Department of Correction. Dye argues on appeal that the trial court abused its discretion in denying his motion to dismiss based on the running of the statute of limitations.
Dye.sold a used computer to Ms. Tia Smith, who later discovered that its hard drive contained hundreds of pictures of child pornography. A search warrant was issued for Dye’s home. Officers uncovered more depictions of child pornography in a locked footlocker. Some of the photos were of Dye engaging in sexual acts with young boys from his local area. The mothers of the boys identified them. One victim, B.A., identified himself in some of the photographs and established that they were taken around 1983 or 1984, when he was five or six years of age.
Prior to trial, Dye moved to dismiss the rape charges, arguing that the six-year statute of limitations in effect at the time of the rapes had expired. See Ark. Stat. Ann. § 41-104 (Repl. 1987). In response, the State contended that Acts 484 and 586 of 1987, which were passed before the offenses involving B.A. were barred by § 41-104, extended the statute of limitations for offenses involving minors, and applied retroactively to allow prosecution of Dye for the offenses involving B.A. The trial court agreed with the State and denied Dye’s motion to dismiss.
On appeal, Dye relies heavily on Morton v. Tullgren, 263 Ark. 69, 563 S.W.2d 422 (1978), which holds that a strong presumption exists that statutes are not to be retroactively applied unless there is a clear legislative intention that they be so applied. Id. at 73, 563 S.W.2d at 425. See also City of Cave Springs v. City of Rogers, 343 Ark. 652, 37 S.W.3d 607 (2001). Specifically, statutes of limitation ought to be construed as prospective in operation “unless otherwise expressed or that they cannot have the intended operation by any other than a retrospective construction.” Morton v. Tullgren at 74, 563 S.W.2d at 425 (quoting Baldwin v. Cross, 5 Ark. 510 (1844)). In the present case, we find that the General Assembly intended to retroactively apply Ark. Code Ann. § 5-1-109(h) (Supp. 2003), and, thereby, extend the six-year statute of limitations for rapes involving minor victims.
Acts 484 and 586 of 1987, now codified at Ark. Code Ann. § 5-l-109(h), provide that if the six-year statute of limitations for rape has expired, “a prosecution may nevertheless be commenced ... if, when the alleged violation occurred, the offense was committed against a minor, the violation has not previously been reported to a law enforcement agency or prosecuting attorney, and the [six-year statute of limitations] has not expired since the victim has reached the age of eighteen (18).” The General Assembly expressly stated that the purpose of the statute was to “extend” the statute of limitations. Further, the General Assembly stated in the preambles of Acts 484 and 586 that “in many instances, child victims are threatened or intimidated to prevent the prompt reporting of abuse or sexual offenses,” and that “it is in the best interest of the State to extend the statute of limitations for certain offenses involving child victims.” It appears that the express purpose for the enactment of Ark. Code Ann. § 5-1-109(h) was to extend the statute of limitations for offenses that might have already occurred, but, because of the tender age of the victims, had not yet been reported. Therefore, the trial court did not err in denying Dye’s motion to dismiss because the General Assembly intended that the amendment apply retroactively.
Arkansas case law also provides that no one has any vested right in a statute of limitations until the bar of the statute has become effective. Morton v. Tullgren, supra; Horn v. Horn, 226 Ark. 27, 287 S.W.2d 586 (1956); Pinkert v. Lamb, 215 Ark. 879, 224 S.W.2d 15 (1949). The General Assembly may also validly enlarge the period of limitations and make the new statute, rather than the old, apply to any cause of action which has not been barred at the time the new statute becomes effective. Morton v. Tullgren; also Hill v. Gregory, 64 Ark. 317, 42 S.W. 408 (1897). The critical question is one of legislative intent. Id.
Having already determined that the General Assembly expressly intended the amendment to apply retroactively in order to protect minors, we hold that the present case was not barred by the six-year statute of limitations. The victim was born on March 25, 1978, and was abused during either 1983 or 1984, which would have resulted in the previous statute of limitations running during 1989-90. However, the 1987 amendment to the statute tolled the running of the statute of limitations until six years after the victim reached majority. Therefore, Dye had no vested right in the statute, and the charges were timely filed.
Affirmed
Pittman and Neal, JJ., agree. | [
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Robert J. Gladwin, Judge.
This is an appeal from the August 19, 2002, order of the Jefferson County Circuit Court that found appellee owed to appellant $45,645.64 on its note and mortgage. We must dismiss this appeal because not all of the claims against all of the parties have been resolved, and there has been no proper certification pursuant to Ark. R. Civ. P. 54(b) (2003) that would render the order herein final and appealable.
When multiple parties are involved, Ark. R. Civ. P. 54(b) provides that a trial 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 its express direction for the entry of judgment. If the court makes such a determination, it must execute a certificate in compliance with the requirements of Rule 54(b). See Stouffer v. Kralicek Realty Co., 81 Ark. App. 89, 98 S.W.3d 475.
In Fisher v. Citizens Bank of Lavaca, 307 Ark. 258, 819 S.W.2d 8 (1991), our supreme court noted that Rule 54(b) is intended to permit review before the entire case is concluded, but only in those exceptional situations where a compelling, discernible hardship will be alleviated by an appeal at an intermediate stage. In Davis v. Wausau Ins. Co., 315 Ark. 330, 867 S.W.2d 444 (1993), the supreme court emphasized that the trial court must make an express determination that there is no reason to delay an appeal, stating that the court must factually set forth reasons in the final judgment, order, or the record, which can then be abstracted, explaining why a hardship or injustice would result if an appeal is not permitted. The Davis court specifically gave notice that under the terms of Rule 54(b), the final judgment, order, or record must contain specific facts supporting the trial court’s determination that there is some danger of hardship or injustice that would be alleviated by an immediate appeal.
In the case before us, the judgment does not include specific findings of any likely danger of hardship or injustice that could be alleviated by an immediate appeal. The Rule 54(b) certificate attached to the order of the trial court makes one factual statement: “That Norma Rutledge is owed a total of $45,645.64 on the note executed by the Plaintiff in 1993.” The court then recites the language of Rule 54(b) that “there is no just reason for delay of the entry of a final judgment . . . In Fisher, supra, the court stated that merely tracking the language of Rule 54(b) will not suffice. In order to determine that there is no just reason for delay, the trial court must find that a likelihood of hardship or injustice will occur unless there is an immediate appeal and must set forth facts to support its conclusion. Davis, supra. That factual underpinnings supporting a Rule 54(b) certification may exist in the record is not enough; they must be set out in the trial court’s order. Id.
The failure to comply with Rule 54(b) presents a jurisdictional issue that we will raise on our own. Barr v. Richardson, 314 Ark. 294, 862 S.W.2d 253 (1993). Because the Rule 54(b) certificate executed in this case does not conform to the requirements of the rule and the relevant case law, it is ineffective to certify the appeal. Accordingly, we dismiss the appeal without prejudice to refile upon entry of an order that complies with Rule 54(b).
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Robbins and Neal, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a summary judgment awarded appellee, National Bank of Commerce of Pine Bluff (NBC), on a guaranty agreement. From the matters included in the record on appeal, it is undisputed that appellants were stockholders in McCauley Aviation, Inc., an Arkansas corporation with its principal place of business in Pine Bluff. In order to obtain a $180,000.00 line of credit with NBC, the appellants, on February 22, 1982, executed a'guaranty agreement which provided in pertinent part as follows:
For value received and in consideration of advances made or to be made, or credit given or to be given, or other financial accommodation from time to time afforded or to be afforded to McCauley Aviation, Inc. (hereinafter designated as “Debtor”), by NATIONAL BANK OF COMMERCE OF PINE BLUFF,. . . the undersigned hereby jointly and severally guarantee the full and prompt payment to said Bank at maturity and at all times thereafter of any and all indebtedness, obligations and liabilities of every kind and nature of said Debtor to said Bank (including liabilities of partnerships created or arising while the Debtor may have been or may be a member thereof), howsoever evidenced, whether now existing or hereafter created or arising, whether direct or indirect, absolute or contingent, or joint or several, and howsoever owned, held or acquired, whether through discount, overdraft, purchase, direct loan or as collateral, or otherwise; and the undersigned further agree to pay all expenses, legal and/or otherwise (including court costs and attorney’s fees, paid or incurred by said Bank in endeavoring to collect such indebtedness, obligations and liabilities, or any part thereof, and in enforcing this guaranty). The right of recovery, however, against the undersigned is limited to — DOLLARS ($_) plus interest on all loans and/or advances hereunder and all expenses hereinbefore mentioned.
The space for a dollar limitation on the guaranty was left blank.
McCauley Aviation, Inc. had several other loans with appellee which were secured by collateral, financing statements, and security agreements. In 1985 McCauley Aviation went into bankruptcy. Appellee was apparently paid in full on all of McCauley Aviation’s promissory notes except one for $98,456.39 secured by an airplane. After receiving authorization from the bankruptcy court, appellee repossessed the airplane, sold it, relying on the guaranty agreement, and then, sued appellants for the deficiency. Summary judgment was granted appellee for $52,593.61 principal, plus interest, and attorney fees.
On appeal, appellants first argue that the guaranty is too ambiguous to be enforceable because a material term, the limit of the sum guaranteed, was omitted. On the other hand, appellee contends that the guaranty agreement is complete without the insertion of a limitation on the amount guaranteed; that a limitation is not an essential term of a guaranty agreement unless the parties specifically agree to a limitation; and that as executed the guaranty is an unconditional, unlimited guaranty, securing all McCauley Aviation’s debts to NBC.
In National Bank of Eastern Arkansas v. Collins, 236 Ark. 822, 370 S.W.2d 91 (1963), the court said that a guaranty has been defined as a collateral undertaking by one person to answer for payment of a debt of another; that a guarantor is entitled to a strict construction of his undertaking and cannot be held liable beyond the strict terms of his contract; and that a guarantor, like a surety, is a favorite of the law and his liability is not to be extended by implication beyond the express limits or terms of the instrument, or its plain intent. See also, Lee v. Vaughn, 259 Ark. 424, 534 S.W.2d 221 (1976). However, a guaranty contract, like any other contract, must be interpreted according to its language, if clear and unambiguous. Bank of Morrilton v. Skipper, Tucker & Co., 165 Ark. 49, 263 S.W. 54 (1924). In ascertaining the meaning of the language of a contract of guaranty, the same rules of construction control as apply in the case of other contracts. In accordance with such rules it is important, if possible, to determine and give effect to the intention of the parties as ascertained by a fair and reasonable interpretation of the terms used and the language employed, read in the light of the attendant circumstances and the purposes for which the guaranty was made. Ouachita Valley Bank v. DeMotte, 173 Ark. 52, 291 S.W. 984 (1927).
Although there are no Arkansas cases on point, we find guidance in two cases from other states cited by the appellee. In North Carolina National Bank v. Corbett, 271 N.C. 444, 156 S.E.2d 835 (1967), a woman had signed a guaranty for her husband to obtain a line of credit. The guaranty secured “any and all notes, drafts, obligations and indebtednesses of Borrower,” and provided that “the amount of principal at any one time outstanding for which the undersigned shall be liable as herein set forth shall not exceed the sum of $_” The court considered the issue to be whether the failure to insert in the guaranty a limitation on the guarantor’s liability rendered the instrument void. It concluded that:
The blank space and the antecedent wording provided the guarantor opportunity to limit her liability for her husband’s debts. She executed the agreement without inserting any limitation. She cannot, thereafter, ex parte, alter the terms of the agreement. The guaranty is to pay the notes .... Its terms are clear, free of ambiguity. Consequently, there is nothing for the Court to construe. The meaning becomes a question of law.
156 S.E.2d at 837.
In another case cited by the appellee, Cessna Finance Corporation. Meyer, 575 P.2d 1048 (Utah 1978), the facts were remarkably similar to those in the case at bar. Intermountain Flight Center, Inc., had defaulted on its debt to Cessna Finance Corporation and filed a petition in bankruptcy. Cessna repossessed the collateral, sold it, and filed suit for a deficiency judgment against the guarantors. The trial court ruled as a matter of law that the guarantor’s liability was based on an unlimited and continuing guaranty; that the agreement was valid; and that the failure to place a figure in a blank and thereby limit the guarantor’s liability to a specific sum indicated unlimited liability. On appeal, it was argued that the guaranty agreement was not enforceable because the provision was left blank. The appellate court specifically noted that the appellant claimed that the amount limiting liability was an essential element to the guaranty agreement and that the failure to include this term caused the contract to fail for lack of mutual assent. The court then stated:
The unfilled blank, if not essential to the understanding between the parties, may be rejected as unnecessary and mere surplusage if it appears that the omission was intended. In the instant case, the appellant was eager to obtain financing from the respondent and, therefore, volunteered to execute the guaranty agreement. The agreement was a form contract and was given to the guarantors to fill in. The guarantors did fill in all the blanks except the one that limited their liability and duly executed the document. Respondent had no obligation to limit the amount of liability; that was for the guarantors to do if they so desired. If any of them had wanted to limit his obligation, he could have done so by filling in that blank on the form agreement.
575 P.2d at 1050-51.
In the case now under consideration, the guaranty agreement stated “the undersigned hereby . . . guarantee the full and prompt payment ... of any and all indebtedness, obligations and liabilities of every kind and nature of said Debtor to said Bank.” We find this language to be clear and unambiguous. It means that the guarantors’ liability is unlimited unless a figure is written in the blank placing a dollar limit on their liability. This interpretation is consistent with the factual situation which the record shows surrounded the making of the agreement — that appellants wished to establish a line of credit with appellee Bank. If appellants had chosen to limit their liability, they could have easily placed a figure in the blank before executing the agreement. The record shows they had ample time to do so, as the document was mailed to them to execute, thus giving them time to study it and even have it examined by their attorney.
Appellants rely heavily on the dissenting opinion in Shamburger v. Union Bank of Benton, 8 Ark. App. 259, 650 S.W.2d 596 (1983), in support of their position that when a guaranty contract is ambiguous, parol evidence is not admissible to clarify the ambiguity, and that an ambiguity in a contract must be construed against the drafter. However, we need not discuss the difference between the majority and minority views in Shamburger since the rules of law involved there are simply not applicable in this case. Here, the trial court found the guaranty contract to be clear and unambiguous, not requiring further evidence to ascertain the meaning of the parties, and we agree with the trial court’s conclusion.
Appellants also argue that the trial court erred in granting summary judgment in favor of appellee because there was no meeting of the minds as to the amount guaranteed and this is an essential term of the contract. In considering a motion for summary judgment, a judge may consider pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, to determine whether there is a genuine issue as to any material fact and whether the moving party is entitled to summary judgment. Hallmark Cards, Inc. v. Peevy, 293 Ark. 594, 739 S.W.2d 691 (1987); ARCP Rule 56(c). Summary judgment is an extreme remedy and will be granted only when there is no genuine issue of material fact before the court; all proof must be viewed in the light most favorable to the party resisting the motion; and any doubts and inferences must be resolved against the moving party. First National Bank of Wynne v. Hess, 23 Ark. App. 129, 743 S.W.2d 825 (1988). However, parties are presumed to have read and understood their contracts. In Connelly v. Beauchamp, 178 Ark. 1036, 13 S.W.2d 28 (1929), the court stated the rule as follows:
The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention, if it can be done consistently with legal principles. The parties should always be bound for what they intended to be bound for, and no more. The intention of the parties means, however, the intention as shown by the contract, and not what they may have had in mind but did not express. The law presumes that the parties understood the import of their contract and that they had the intention which the terms of the contract manifest.
178 Ark. at 1042. See also, Rodgers v. Lyon, 256 Ark. 323, 507 S.W.2d 95 (1974). Here, there are uncontradicted affidavits that appellants were experienced business persons and were dealing with appellee at arms length. We find they are bound by the terms of the guaranty.
Since we have concluded that the contract was clear and unambiguous and that limiting the amount of the guaranty was a nonessential term, it follows that granting appellee summary judgment was proper.
Affirmed.
Corbin, C.J., and Coulson, J., agree. | [
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James R. Cooper, Judge.
This is a guardianship case concerning Tracy Trammell, a minor born March 23,1977, who was orphaned in 1985. In a proceeding held on February 9,1987, the trial court vested permanent guardianship of Tracy in the appellees. From that decision, comes this appeal.
For reversal, the appellants contend that the trial court abused its discretion in permitting an ex parte temporary guardianship proceeding to be held without justification; that the trial court erroneously continued the temporary guardianship beyond the ninety days permitted by statute; and that the trial court abused its discretion when, at the permanent guardianship hearing, it refused to permit the appellants either to review the guardian ad litem’s report or to cross-examine the guardian ad litem. We find no prejudicial error, and we affirm.
The record shows that the appellee, Helen Isom, is Tracy’s maternal aunt; the appellants are Tracy’s paternal grandparents. The appellees assumed custody of Tracy upon learning of the death of her parents. On July 22, 1985, two days after Tracy’s parents died, the appellees filed a petition in the trial court seeking appointment as temporary guardians of their niece’s person and estate. The appellants filed an objection to the appellees’ petition on August 7,1985. By agreement, the parties subsequently adopted a practice whereby Tracy lived with the appellees, but visited the appellants every other weekend. This arrangement continued until September 1, 1986, when the appellants failed to return Tracy to the appellees, and enrolled her in the Higden schools in Cleburne County, near the appellants’ home. Tracy had been enrolled in and attending school in Clinton the previous week. In an ex parte proceeding conducted on September 2,1986, the appellees sought and obtained an order appointing them Tracy’s temporary guardians. The appellants filed a petition to set aside the temporary guardianship on October 20, 1986, and asked that they be appointed as Tracy’s guardians. At a hearing held on November 24, 1986, the appellees filed a petition for the appointment of a permanent guardian. The appellants objected to the filing of the petition on the morning of the hearing, and the trial court continued the proceedings. On December 17, 1986, the trial court entered an order appointing a guardian ad litem. On February 9,1987, after a hearing at which the appellants, the appellees, and the guardian ad litem were present, the trial court vested permanent guardianship in the appellees.
The appellants first argue that it was an abuse of the trial court’s discretion to permit an ex parte temporary guardianship proceeding to be held in the absence of evidence to support a finding that there was imminent danger to Tracy’s life or health or of loss, damage or waste to her property as required by Ark. Stat. Ann. § 57-840 (Repl. 1971) [Ark. Code Ann. § 38-65-218 (1987)]. In their next point for reversal, the appellants cite the ninety-day limit on the duration of a temporary guardianship found in the above-referenced statutes for the proposition that the trial court erred in extending the temporary guardianship beyond the statutory limit of ninety days. We find both issues to be moot.
The temporary guardianship terminated upon entry of the order vesting permanent guardianship in the appellees. Even assuming that both of the arguments covering the temporary guardianship advanced by the appellants are meritorious, reversal of the temporary guardianship at this point would have no practical effect. Error is no longer presumed to be prejudicial, and the appealing party bears the burden of demonstrating prejudicial error. Cycle Center v. Allen, 14 Ark. App. 215, 686 S.W.2d 808 (1985). The appellants contend that they were prejudiced by the temporary guardianship in that, as a result of that order, Tracy spent additional time in the appellees’ household, a factor considered by the trial court in awarding permanent guardianship to the appellees. We find no merit in this contention. It is clear that the appellees had already had de facto custody of Tracy for over one year at the time the temporary guardianship was awarded. Moreover, we are unwilling to order the trial court to redetermine permanent guardianship without considering the ill effects of disrupting Tracy’s established home life and the relationships she has developed with the appellees since the death of her parents. The continuity of care is a significant factor in assessing the best interests of the child in a child guardianship case, Bennett v. McGough, 281 Ark. 414, 664 S.W.2d 476 (1984), and the best interest of the child is the paramount consideration when appointing a guardian for a child. Marsh v. Hoff, 15 Ark. App. 272, 692S.W.2d270 (1985). In the absence of evidence to show that irregularities in the temporary guardianship proceedings caused the trial court to err in determining that it was in Tracy’s best interest to vest permanent guardianship in the appellees, we hold that any error that may have resulted in those proceedings was harmless.
Next, the appellants contend that the trial court erred in refusing to permit them either to review the guardian ad litenis report or to cross-examine the guardian ad litem. Linda Collier, an attorney, was appointed as guardian ad litem for Tracy in an order entered December 17,1986. The order did not specify Ms. Collier’s duties as guardian ad litem. It is clear that Ms. Collier prepared a report or recommendation which she intended to present to the trial court; the appellants asked to be shown the report at the permanent guardianship hearing. Ms. Collier stated to the trial court that she had such a report in her possession, but that only her secretary and herself had seen the report. She further stated that, if filing the report would subject her to cross- examination, she would prefer not to present the report so that she could continue to act as an advocate for her client. The appellants argued that Ms. Collier was acting in the nature of a fact-finder for the trial court in her capacity as guardian ad litem, and that the report should thus be presented and subject to inspection. The trial court ruled that the report or recommendation would not be presented, stating that:
[T]he Court is relying on Ms. Collier to represent the best interest of the child. And, if the Court feels that the best interest of the child is not to testify, not to make the report where she would be subject to cross-examinations, then the Court is not going to require her to make such a report.
The appellants contend that the preparation of a report or recommendation for the trial court shows that Ms. Collier was in fact functioning as a court-appointed expert, and that, under A.R.E. Rule 706, the parties were thus entitled to cross examine her and be advised of the findings contained in her report. We do not agree that Rule 706 is applicable, however, because we find no indication in the abstract to show that Ms. Collier’s report or recommendation was prepared at the direction of the trial court. The trial judge stated that he appointed the guardian ad litem to represent the child, and the order appointing Ms. Collier did not impose upon her the duty of acting as a court-appointed expert. The function of a guardian ad litem appointed to represent a minor is discussed in Kimmons v. Kimmons, 1 Ark. App. 63, 68, 613 S.W.2d 110 (1981), where we said that:
[A] guardian ad litem if appointed should be allowed an adequate opportunity to investigate the case, should be permitted to call his witnesses at trial and to cross examine those witnesses called by the parties. In short, he should be permitted to represent his child client as he would any client in preparation for and at trial.
It is well-settled that an attorney who is to serve as an advocate in a disputed action should refrain from testifying. Aetna Casualty and Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1984); Enzor v. State, 262 Ark. 545, 559 S.W.2d 148 (1977). It is thus apparent that Ms. Collier’s effectiveness as a guardian ad litem would have been largely destroyed had she been required to testify at the hearing. See Kimmons v. Kim- mons, supra. Here, the trial judge determined that Tracy’s best interest would be served by refusing to accept the report or recommendation, thus shielding Ms. Collier from cross-examination and allowing her to continue to serve as an advocate at the hearing. Since the report was not presented to the trial court, and in the absence of evidence to show that the report was prepared at the trial court’s direction, we hold that the trial court did not err in refusing to permit the appellants to see the report or to cross-examine the guardian ad litem.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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James R. Cooper, Judge.
The appellant, Associated Natural Gas Company (ANG), a wholly-owned subsidiary of Arkansas Power and Light Company (AP & L), appeals from an order of the Arkansas Public Service Commission granting it a rate increase of $311,202.00 on its request for an increase of $992,948.00. ANG’s application was filed on December 20, 1985, and if granted in full, would have increased rates for its customers in Arkansas by 6.56%.
The appellant seeks reversal of the Commission’s decision on four points. First, ANG contends that the 6.52 % return on equity allowed it by the Commission is arbitrary and not based on substantial evidence; specifically, ANG contends that the use of “double leverage” in determining its return on equity is inappropriate in this case or, at the very least, the method was incorrectly applied. Second, ANG contends that the adoption of the “modified balance sheet approach” to estimate its working capital requirement is incorrect and is not supported by substantial evidence. Third, ANG claims that the Commission’s disallowance of a particular item of payroll expense is erroneous. Finally, ANG contends that the elimination of certain expenses claimed by it is arbitrary and not supported by substantial evidence.
We agree with ANG that the application of the concept of double leverage in these particular and unique circumstances is error and, therefore, we reverse on that point. We affirm the Commission’s decision in all other respects.
Our review of appeals from the Public Service Commission is limited by the provisions of Ark. Stat. Ann. Section 73-229.1 (Supp. 1985) [Ark. Code Ann. Section 23-2-423(c)(3), (4), and (5) (1987)], which defines our standard of review as determining whether (1) the Commission’s findings of fact are supported by substantial evidence; (2) the Commission has regularly pursued its authority; and, (3) the order under review violated any right of the appellant under the laws or Constitution of the State of Arkansas or the United States. When this Court reviews such cases, we give due regard to the expertise of the Commission, which derives its ratemaking authority from the Arkansas General Assembly. The Commission has broad discretion in choosing an approach to rate regulation and is free, within its statutory authority, to make any reasonable adjustments which may be called for under particular circumstances. General Telephone Co. v. Arkansas Public Service Commission, 272 Ark. 440, 616 S.W.2d 1 (1981);Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 18 Ark. App. 260, 715 S.W.2d 45 (1986). In light of these considerations as to our standard of review, we now turn to the issues presented by appellant on appeal.
ANG first argues the Commission’s finding allowing it a return on equity of only 6.52 % is arbitrary, unreasonable, unjust and confiscatory and is not based on substantial evidence. Specifically, ANG argues that it was error for the Commission to apply what is known as double leverage to ANG; to ignore the greater risk to ANG stockholders which results from application of double leverage; and, to rely on historical growth data to find a 13% return on AP & L’s common equity.
The fact that ANG is a wholly-owned subsidiary of AP & L makes calculation of its required return on equity more difficult because its stock is not publicly traded; therefore, double leverage was used here to impute to the subsidiary corporation (ANG) as its return on equity the parent corporation’s (AP & L’s) overall cost of capital and thereby provide a means to calculate the return on equity for ANG. Double leverage recognizes that in most cases it is probable that all sources funding a parent corporation’s capital structure contribute relatively to the purchase of equity in the subsidiary corporation. Indeed, this Court and the Arkansas Supreme Court have recognized double leverage as a valid tool for the Commission to use. General Telephone Co., supra; Arkansas Public Service Commission v. Lincoln-Desha Telephone Co., 271 Ark. 346, 609 S.W.2d 20 (1980); Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 267 Ark. 550, 593 S.W.2d 434 (1980).
In Arkansas Public Service Commission v. Lincoln-Desha Telephone Co., supra, the Arkansas Supreme Court said:
Corporations are usually financed partly with debt capital and partly with equity capital. “Leverage” is a financial term used to describe the situation in which a corporation is funded by debt in addition to the equity supplied by the stockholders. A corporation is said to be “leveraged” to the extent that debt is included in its capital structure. The leverage arises from the advantage gained by equity holders through the rental of capital at a lower rate than the return they receive on their equity. Thus, we see that by use of leverage the equity owners are able to earn an overall rate of return in excess of the cost of capital. The added earnings above the costs inure to the benefit of the stockholders as they then receive a higher rate of return than if the institution had been financed entirely by equity.
271 Ark. at 348-49, 609 S.W.2d at 22.
The parties do not dispute the validity of the concept of double leverage as a general proposition, but the appellant argues that because of the undisputed facts surrounding ANG’s acquisition by AP & L, the existence of double leverage between AP & L and ANG is impossible, and is in fact illegal, and therefore the application of the concept in the calculation of ANG’s required return on equity is inappropriate. We agree.
Associated Natural Gas Company was engaged in supplying gas service to customers in the State of Missouri until 1953, when it was acquired by Arkansas-Missouri Power Company (Ark-Mo Power), a utility which sold both electricity and natural gas in Arkansas and Missouri. Even after the acquisition of ANG, state regulatory agencies treated ANG and Ark-Mo Power independently. This situation existed until the early 1970’s, when Middle South Utilities, Inc., a public utility holding company, bought Ark-Mo Power, thereby acquiring 100% ownership of ANG’s common stock. Middle South Utilities also owns all of the common stock of Arkansas Power & Light Company, an electric utility, and as a condition of the acquisition by Middle South, the Securities and Exchange Commission required Middle South to dispose of Ark-Mo Power’s gas operations within one year. Apparently, Middle South was unable to comply with this requirement, and in 1976, it sought revocation of the divestiture requirement. The SEC declined to waive the divestiture order but suggested that Ark-Mo consolidate all of the gas operations of Ark-Mo and Associated Natural Gas into ANG. This was accomplished in 1978. Ark-Mo then operated as an electric utility, and ANG operated as its wholly-owned subsidiary gas utility until 1981, when AP & L merged with and absorbed all of Ark-Mo’s operations. In effecting the absorption of Ark-Mo and the acquisition of ANG’s common stock, AP & L swapped its own first mortgage bonds to Ark-Mo bond holders in a debt-for-debt swap. Middle South exchanged AP & L common stock for Ark-Mo common stock in order to accomplish the equity side of the merger.
Ernest L. McKenzie, ANG’s vice-president, chief financial officer, secretary, treasurer, and a member of its board of directors, was personally involved in virtually all of the transactions outlined above and testified in great detail as a witness in the hearings below. The important essence of McKenzie’s testimony is that the acquisition of ANG by AP & L was a non-cash transaction involving the swap of bonds for bonds and stock for stock; that it is impossible for borrowed funds to have been used by AP & L to purchase ANG common stock; that, since AP & L acquired ANG, it has purchased no additional stock nor has it loaned any money to ANG; and that the gas operations of ANG have remained strictly separate from the electric operations of its parent company, AP & L, since the parent-subsidiary relationship came into being.
We agree that the use of double leverage was inappropriate in this case because of one critical fact: none of Arkansas Power & Light Company’s debt could possibly have been used to finance its acquisition of ANG. Arkansas Power & Light was prohibited by law from using debt to purchase ANG; therefore, it is impossible for AP & L’s debt to leverage down to ANG. It is inappropriate to use AP & L’s overall cost of capital to determine ANG’s cost of equity, because AP & L’s investment in ANG’s stock cannot consist of anything but a portion of AP & L’s equity capital. An elementary premise on which the application of double leverage depends is missing from this case, i.e., that a parent corporation has debt-funding available to it which may be used to purchase the subsidiary corporation’s stock.
The PSC claims that ANG’s argument makes a mistaken assumption that no debt was used by AP & L to fund its investment in ANG. The PSC contends that all capital dollars are fungible, i.e., they cannot be traced to their source, and each dollar is an inseparable element of every financial transaction. While we agree that, as a general proposition, all dollars in a company’s capital structure are fungible, we cannot accept the argument that the concept of fungibility should be recognized in this particular case because doing so would be absolute fiction. We hold that, because it is a factual and legal impossibility for double leverage to exist between this parent and this subsidiary corporation, as proven by the unrefuted evidence, the application of the concept of double leverage to this subsidiary corporation to ascertain its cost of equity for ratemaking purposes is inappropriate.
Because we hold that the application of double leverage is inappropriate in these particular circumstances, we do not need to address the appellant’s two remaining issues concerning its increased risk as a result of double leverage and the return on equity used for ANG’s parent company by the Commission.
We now turn to the appellant’s contention that the use of the Modified Balance Sheet Approach (MBSA) to compute ANG’s working capital is incorrect. The MBSA is a relatively new ratemaking tool, but it has been used with approval in other cases. General Telephone Co. of the Southwest v. Arkansas Public Service Commission, 23 Ark. App. 73, 744 S.W.2d 392 (1988), aff'd, 295 Ark. 595, 751 S.W.2d 1 (1988). The use of the Modified Balance Sheet Approach to determine working capital in this case was not impermissible, and the appellee’s use of it is supported by substantial evidence.
Working capital is the cash and other non-plant investment in assets a utility must maintain in order to meet its current financial obligations and provide utility service to its customers in an economical and efficient manner. Since at least part of working capital represents a contribution from investors, an amount is generally included in the calculation of a utility’s rate base upon which a return is allowed.
Generally, the working capital allowance is derived through a device known as a “lead/lag study,” which attempts to measure the advances and delays involved with expenses and revenues associated with a company’s operations on a day-to-day basis. ANG submitted a lead/lag study in this case, which was accepted by the PSC staff subject to some adjustments. The staff additionally used an MBSA but advocated adoption of ANG’s lead/lag study subject to staff’s adjustments. The Commission rejected the lead/lag study as submitted by ANG and also rejected the adjusted lead/lag study advocated by the PSC staff because “a lead/lag must separately provide the amounts of working capital assets on a jurisdictional basis and the working capital liabilities on a total company basis.” Neither the appellant nor the staff used total company liabilities and instead used Arkansas-only jurisdictional assets and liabilities. The appellant argues that our decision in Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 19 Ark. App. 322, 720 S.W.2d 924 (1986), prevents the use of Arkansas-only jurisdictional assets and total company liabilities. That decision is not applicable here.
In Southwestern Bell, supra, we required that consistent treatment be given all components of a public utility’s capital structure. We held there that the use of Arkansas-only customer deposits along with total-company equity, debt, accumulated deferred income taxes and investment tax credits in calculating the company’s weighted cost of capital was inconsistent and reversed and remanded on that basis. Here, no such inconsistency exists: liabilities were treated consistently on a total-company basis, and assets were treated consistently on an Arkansas-only basis. We hold that the Commission’s decision to use Arkansas-only assets and total company liabilities in preparing the MBSA to determine working capital is supported by substantial evidence and does not run afoul of this Court’s directives in Southwestern Bell.
The appellant’s argument that the MBSA was not properly prepared is without merit. Our Supreme Court addressed this identical issue in General Telephone Co. of the Southwest v. Arkansas Public Service Commission, 295 Ark. 595, 751 S.W.2d 1 (1988), and affirmed the disallowance of “return on return.” From our review of the record, we cannot say that the Commission’s refusal to allow a return on return in this case was improper.
Next, ANG claims that the MBSA adopted by the Commission erroneously included a liability consisting of $631,364.00 of “quick turn-around” accumulated deferred income taxes (ADIT) in ANG’s capital structure. ANG contends that the Commission should have accepted the testimony of its own witness, who testified that the tax timing differences will average out to zero in the short-term period. The PSC staff contends, on the other hand, that the amount of ADIT included by the Commission was fairly representative of a normal level of ADIT and was, therefore, proper, because ADIT is a source of cost-free capital.
As we pointed out in General Telephone, supra:
It is apparent that no particular methodology is precise and that a determination of working capital is in many respects an exercise of discretion as to what particular method yields the most fair and equitable result in each case. Without question, the particular amount of working capital allowance, along with the particular methodology used to derive that amount, is a matter of educated opinion, expertise, and informed judgment of the Commission and not one of mathematically demonstrable fact.
As the trier of fact in rate cases, it is within the province of the appellee to decide on the credibility of the witnesses, the reliability of their opinions, and the weight to be given their evidence. The appellee is never compelled to accept the opinion of any witness on any issue before it. The appellee is not bound to accept one or the other of any conflicting views, opinions, or methodologies. Arkansas Public Service Commission v. Continental Telephone Co., 262 Ark. 821, 561 S.W.2d 645 (1978).
General Telephone, 23 Ark. App. 83. From our review of the evidence, we cannot say that the appellee’s acceptance of this tax adjustment is not supported by substantial evidence. Once the appellate court determines the appellee’s factual findings are supported by substantial evidence, we defer to the expertise of the Commission. General Telephone, 295 Ark. supra.
ANG contends that the PSC erroneously disallowed a payroll expense adjustment proposed by ANG to permit it to recover expenses associated with a newly-created position of vice-president of marketing carrying with it a salary of $70,000.00 per year. Ark. Stat. Ann. Section 73-217.5 (Supp. 1985) [Ark. Code Ann. Section 23-4-406 (1987)] provides in pertinent part as follows: “. . . [t]he Commission shall permit adjustments to any test years. . . to reflect the effects on an annualized basis of any and all changes and circumstances which may occur within twelve months after the end of such test year where such changes are both reasonably known and measurable.” Here, the PSC staff argued against inclusion of ANG’s proposed adjustments because the person selected to fill the position in question did not begin work until about two weeks following the end of the pro forma year.
In Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 18 Ark. App. 260, 268, 715 S.W.2d 451, 455 (1986), we said:
It seems logical that a point or period in time must be fixed during the ratemaking process at which the interjection of variables must cease and rate calculations committed to paper. Only then can there be an element of certainty in this often uncertain process.
The adjustment proposed by ANG and rejected by the Commission in this case is the very type of dispute which Section 73-217.5 [Code Section 23-4-406] was designed to prevent. While the action of ANG in establishing a position and setting the salary for the position occurred at the very end of the twelve-month period following the end of the test year, the record reflects that the expenses associated with that position were not to be incurred during that pro forma year. The Commission’s refusal to allow ANG’s expense adjustment was correct. See General Telephone, supra.
Finally, ANG complains that the rejection of certain expenses associated with billings from Middle South Services, a corporation providing services to affiliates of Middle South Utilities Company, is error. Staff witness Lewis proposed elimination of $32,298.00 of these expenses, and the Commission adopted his recommendation in its final order. Company witness McKenzie testified in order to explain the expense items eliminated by Lewis, who claimed that the expenses were associated with lobbying efforts, did not benefit ratepayers, or were simply not justified by the appellant.
ANG has the burden under Ark. Stat. Ann. Section 73-237 (Repl. 1979) [Ark. Code Ann. Section 23-2-417 (1987)] to justify the rate application it filed with the Commission. Here, the Commission accepted the recommendation of the staff witness and was apparently unpersuaded by the explanations offered by the company witness as to the reasonableness of the expenses disallowed. Since the Commission is the trier of fact, it is within its province to assess the credibility of the witnesses, the reliability of their opinions, and the weight to be accorded the evidence presented by the witnesses. Arkansas Public Service Commission v. Continental Telephone Co., 262 Ark. 821, 561 S.W.2d 645 (1978). We cannot say from the record before us that the Commission’s acceptance of witness Lewis’ expense disallowance recommendation was incorrect.
We reverse and remand the decision of the Commission with respect to the use of double leverage in these particular and unique circumstances, with the sole consideration on remand to focus on the appropriate methodology by which the appellant’s return on equity may be calculated and then included in its rate of return calculations. In all other respects, the decision of the Commission is affirmed.
Affirmed in part, reversed in part, and remanded.
A method known as the “discounted cash flow” (DCF) formula is often used to derive a corporation’s return on equity and depends on market information for its application. Walnut Hill Tel. Co. v. Arkansas Public Service Comm’n, 17 Ark. App. 259, 709 S.W.2d 98 (1986).
The parties agree that the Public Utilities Holding Company Act and applicable rules and regulations of the Securities and Exchange Commission prohibit such transactions.
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George K. Cracraft, Judge.
In 1971, Donna Shipman, then less than a year old, was placed in foster care by order of the juvenile court of Perry County. In late 1986, she had moved into the home of Edwin and Jerreld Boudra, who had been social workers at the orphanage in which she had originally resided but had never been appointed her guardians or custodians. In March of 1987, Donna requested that she be permitted to reside permanently in the home of a sister in Chicago, Illinois. The Arkansas Department of Human Services (Department) was requested by the Boudras to assist them in obtaining the necessary order to comply with her request. The petition was filed by the Department in the Probate Court of Perry County to accomplish that purpose.
At a March 20,1987, hearing on the petition it was agreed by the parties and the court that before a permanent change of residence was ordered the Department should provide round-trip transportation for the child for a summer visit of six weeks or less with the sister in Chicago to determine if her desire was genuine. It was determined that if after that time she still desired to live in Chicago a permanent order would be considered at a hearing to be held in August.
The trial court ordered that temporary custody be placed in the Boudras, that the Department provide the necessary transportation for the trip and request home studies of the minor’s two sisters in Chicago from the appropriate agency in the State of Illinois, and that the child not be permitted to leave until a favorable report on the home of at least one sister was received. The court stated that the petition for a permanent change of residence would be considered after the summer visit. The court further stated that, before the permanent change was effected, the Department should have obtained such necessary medical, dental, and orthodontic examinations, to enable the child to go to Chicago with her medical treatment and records completely up to date. A written order was prepared by the attorney for the Department and entered by the court on April 7,1987, containing all those directives except a specific provision concerning the medical records at the time of any permanent transfer. The order merely provided that the Department should provide “Protective Services,” a term the attorney understood to encompass any services the child might need and an order which would enable the Department to obtain the necessary funding for those services.
The minor went to Chicago on June 22 and returned on July 25, stating that she had changed her mind and wished to continue to reside in the home of the Boudras.
At a hearing held on August 21, 1987, the Department announced to the court the child’s determination to remain in Arkansas and asked that the order directing Protective Services and naming the Boudras as the custodians of the child be continued. The court announced that it would hold a hearing to determine whether there had been compliance with its order of April 7. After a short hearing the court summarily adjudged two Department social workers and its attorney in criminal contempt and ordered them incarcerated in the county jail until they made specific monetary deposits with the clerk or sheriff. He indicated that he would, however, continue the custodial arrangement with the Boudras and the order that the agency furnish the child with the necessary Protective Services including necessary medical and dental services.
Although the court ordered the attorney for the Department to prepare a precedent for entry on those orders and present it to him by August 27, the court instead prepared and signed its own order holding the parties in contempt on August 26. It rejected the order submitted by the appellant’s attorney, filed its order holding the Department employees in contempt on August 28, and entered its own order on the merits on September 4. Both orders of the court contained findings that the Department had failed to comply with the court’s previous orders to obtain home studies on both of the minor’s sisters in the State of Illinois, and obtained a written report on only one of them. It found that the previous order failed to reflect its orders for medical, dental, and orthodontic examinations and that this failure resulted in neither medical nor orthodontic examinations being performed. It further found that the Department did not offer appropriate services to the minor. The three persons held in contempt were unaware that the separate order of contempt had been filed on August 28, and a notice of appeal from the order of September 4,1987, was filed. The notice of appeal was on behalf of the Department and made no mention of the two social workers or the attorney or that they wished to appeal from an order holding them in contempt.
On appeal the Department contends that the recited findings contained in the order of September 4, are not supported by the evidence and are clearly erroneous. The only evidence in the record on the subject of home studies reflects that the Department did request, and obtain in writing, a favorable report on the home of one sister before the minor departed. Both social workers testified that they had requested additional home studies on both homes and had been verbally informed by the Illinois agency that the conditions in both homes were favorable for the visitation. They testified that, although they indicated that both home studies were urgently needed, they were informed that due to the Illinois agency’s heavy work load a written report could not be transmitted for four or five months but that one would follow. There was no competent evidence that would support a finding that the failure to obtain the written reports on both homes was due to any fault or neglect on the part of the social workers. Rather, it is clear that the only finding the evidence would support is that the failure was due solely to the inability of the corresponding agency in Illinois to complete the work requested by the Department pursuant to the court’s order.
Nor was there any evidence to support a finding that the medical and orthodontic examinations had not been performed. At the March hearing the court specifically directed that at the time the child permanently moved to Chicago her medical records should be up to date, including an orthodontic examination and such orthodontic treatment as may be found necessary. The child never moved to Chicago permanently. There was evidence that immediately upon returning from her summer visit she was examined by her regular physician and treated by a dentist. The dentist performed some dental work, scheduled an appointment for additional work, and reported that the child was not a proper candidate for orthodontic treatment because her teeth did not contain enough “points.” Her custodian testified that the Department had provided for all of the necessary medical and dental needs.
While we agree that the trial court’s findings as to any alleged failure by the Department in the performance of its duties are wholly unsupported by any competent evidence, the error does not warrant reversal. The Department petitioned the probate court to appoint the Boudras as the continuing custodians of the child and to continue its order that the Department provide the child with Protective Services. The court entered just such an order. We find no prejudice that resulted from the erroneous findings by the court.
The two Department social workers and its attorney contend that the evidence as recited herein is insufficient to sustain a finding that they acted in such a manner as to undermine the dignity, integrity, or public respect for the courts, or warrant an adjudication of criminal contempt. They argue that in any event the summary manner in which the court made the adjudication was in total disregard of both statutory and judicial declarations that persons accused of criminal contempt committed outside the court’s view must be first notified by a writing, sufficiently definite to inform them to a reasonable degree of certainty of the charge against them, and then be afforded a reasonable time and opportunity to prepare and defend themselves against the charge. Ark. Code Ann. § 16-10-108(c) (1987) (formerly Ark. Stat. Ann. § 34-903 (Repl. 1962)); Edwards v. Jameson, 283 Ark. 395, 677 S.W.2d 482 (1984). They argue that the trial court’s total disregard of these rules and basic concepts of justice and fair play deprived them of due process of law and an opportunity to present a defense.
While we agree that the action of the trial court was inexcusable and could not withstand appellate review, we reluctantly must conclude that the propriety of that action is not properly before us for review. The notice of appeal filed in this case stated that the Department of Human Services appealed from the court’s order entered on September 4,1987. It made no reference to the two social workers or attorney or that they were taking an appeal from the August 28 order holding them in contempt.
For over a century the proper manner for seeking review of contempt matters was by certiorari, because the statutes made no provision for appeals. In Frolic Footwear, Inc. v. State, 284 Ark. 487, 683 S.W.2d 611 (1985), the supreme court recognized that this was an anomaly since Rule 3 of the Arkansas Rules of Appellate Procedure now provides that appeal is the proper mode for review of all judgments and orders. The court declared that in the future contempts would be reviewed as appeals but gave no guidance other than that “we . . . shall regard them as being governed by the statutes [and rules] pertaining to appeals.” 284 Ark. at 490, 683 S.W.2d at 612-13. Rule 3 provides that appeals are to be taken by filing a notice of appeal which shall specify the party or parties taking the appeal and the order appealed from.
Although it is readily apparent that the employees of the Department intended to appeal from their convictions of criminal contempt, we have held that a notice of appeal must be judged by what it recites and not what it was intended to recite. Garland v. Windsor Door, 19 Ark. App. 284, 719 S.W.2d 714 (1986). It must state the parties appealing and the order appealed from with specificity, and persons not named as parties to the notice and orders not mentioned in it are not properly before the appellate court. It is now our settled rule that a contemnor, not a named party in the original proceeding but held in contempt of the court’s orders, must file a notice of appeal in his own right, specifying that he is appealing from the order holding him in contempt. Marsh v. Hoff, 15 Ark. App. 272, 692 S.W.2d 270 (1984); Williams v. Williams, 12 Ark. App. 89, 671 S.W.2d 201 (1984).
Nor is there merit in the argument that the failure to file a proper notice should be excused because the accused parties were not aware that the trial court had entered its own order holding them in contempt on August 28. The rule of general application would require them to keep abreast of the filings in the case and hold them accountable for having failed to do so. However, there are at least two exceptions to that rule applicable to notices of appeal. Rule 4(a) of the Arkansas Rules of Appellate Procedure provides that the trial court in any case may grant an extension up to an additional sixty days for filing the notice where there is a showing that the person desiring to appeal failed to receive notice of entry of the judgment. Rule 36.9 of the Arkansas Rules of Criminal Procedure allows the supreme court to grant an even longer extension in criminal cases “when a good reason for the omission is shown” within eighteen months of the commitment. The record does not disclose that application for extension of time was made under Ark. R. App. P. 4(a) or has yet been made under Ark. R. Crim. P. 36.9.
Affirmed.
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James R. Cooper, Judge.
The appellants, Dallas Hatley and Charley Hatley, appeal an order of the Drew County Chancery Court granting summary judgment to the appellee Aetna Casualty and Surety Company in the appellants’ suit for proceeds of an insurance policy. On appeal, the appellants argue that the trial court erroneously applied Arkansas law. We disagree.
The appellants are the owners of a parcel of improved land in Drew County and entered into an installment contract to convey the land to Ronald Payne in June of 1985. The contract contained the following clause:
The Buyer shall also carry fire and hazard insurance on the building located on said land in an amount of at least as much as the unpaid principal balance owed hereunder, with a loss payable clause in the policy in favor of the Sellers, showing their interest in said real property.
In July 1985, Payne secured an insurance contract with Aetna for a face amount of $30,000.00. Payne was the only insured listed on the policy and no one was listed under the mortgage section. The appellants’ interest in the property was not referred to at any place in the policy. The policy included a standard, or union, mortgage clause which provided as follows:
12. Mortgage Clause.
The word “mortgagee” includes trustee.
If a mortgagee is named in this policy, any loss payable under Coverage A or B shall be paid to the mortgagee and you, as interests appear. If more than one mortgagee is named, the order of payment shall be the same as the order or precedence of the mortgages.
If we deny your claim, that denial shall not apply to a valid claim of the mortgagee, if the mortgagee:
a. notifies us of any change in ownership, occupancy or substantial change in risk of which the mortgagee is aware;
b. pays any premium due under this policy on demand if you have neglected to pay the premium;
c. submits a signed, sworn statement of loss within 60 days after receiving notice from us of your failure to do so. Policy conditions relating to Appraisal, Suit Against Us and Loss Payment apply to the mortgagee.
If the policy is cancelled by us, the mortgagee shall be notified at least 10 days before the date cancellation takes effect.
If we pay the mortgagee for any loss and deny payment to you:
a. We are subrogated to all the rights of the mortgagee granted under the mortgage on the property; or
b. at our option, we may pay to the mortgagee the whole principal on the mortgage plus any accrued interest. In this event, we shall receive a full assignment and transfer of the mortgage and all securities held as collateral to the mortgage debt.
Subrogation shall not impair the right of the mortgagee to recover the full amount of the mortgagee’s claim.
The parties to this case stipulated that Payne subsequently burned the dwelling on the land and later pled guilty to arson. The appellants then demanded that the appellee pay them an amount equal to their interest in the property; when the appellee denied their claim, the appellants filed suit and requested that they be declared mortgagees of the property or, alternatively, third-party beneficiaries or equitable lienors under the policy of insurance. They also sued Payne and requested that he be declared to have no interest in the insurance policy proceeds. Personal jurisdiction was never obtained over Payne.
The parties entered into joint stipulations, and both submitted motions for summary judgment. The appellants offered Payne’s affidavit in support of their motion, wherein he stated that, when procuring the insurance policy, he intended to designate the appellants as the loss payees in the mortgage clause but had neglected to do so. The trial court granted the appellee’s motion for summary judgment.
Summary judgment is granted in accordance with ARCP Rule 56. That rule provides in part that such a judgment may be rendered where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affida vits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Summary judgment is an extreme remedy which should be allowed only when it is clear that there is no issue of fact to be litigated. Johnson v. Stuckey & Speer, Inc., 11 Ark. App. 33, 665 S.W.2d 904 (1984). This was clearly an appropriate case for summary judgment.
The appellants argue that Payne’s destruction of the property could not defeat their claim under the policy because of the wording and effect of the standard mortgage clause. It is generally held that, under a standard or union mortgage clause, the rights of the mortgagee are not affected by any act done by the insured; where the policy is issued in pursuance of a requirement in the mortgage, the mortgagee is entitled to the proceeds, although he was not informed of the issuance of the policy and had no knowledge of it until after the fire. National Bedding & Furniture Industries, Inc. v. Clark, 252 Ark. 780, 481 S.W.2d 690 (1972).
Where the policy contains this form of mortgage clause, the mortgagee has an independent contract with the insurer which can not be defeated by improper or negligent acts of the mortgagor. The policy provisions apply to the mortgagee so that acts of the mortgagee which are in contravention with conditions and limitations will bar the mortgagee’s recovery. Clearly, both the mortgagor and mortgagee have distinct and dissimilar rights where the policy contains such a standard union mortgage clause.
5 G. Couch, Cyclopedia of Insurance Law Section 29:65 (Rev. ed. 1984).
We disagree with the appellants’ assertion that the mortgage clause in the policy in question protected them from the consequences of Payne’s arson. Here, the appellants were not listed as insureds or as mortgagees in the policy, nor was any reference made to their interest in the property. “[T]here is a presumption that parties contract only for the benefit of themselves, and a contract will not be considered as having been made for the use and benefit of a third party unless it clearly appears that such was the intention of the parties.” Fireman’s Fund Insurance Co. v. Rogers, 18 Ark. App. 142, 145, 712 S.W.2d 311 (1986). The wording of the insurance contract in question reveals that its mortgage clause is applicable only “[i]f a mortgagee is named in this policy . . .” By its terms the policy precludes the application of the clause to the appellants.
The appellants argue, however, that the “covenant to insure” doctrine remedies the defect in the appellants’ efforts to be recognized under the policy. They argue that, because of the requirement in the installment sale contract that Payne supply insurance on the property for the benefit of the appellants, the appellants have an equitable lien against the proceeds of the policy regardless of whether they were mentioned in it. Where an insurance policy is procured by a mortgagor under an agreement to insure for the mortgagee’s benefit, the proceeds recovered by the mortgagor are held in trust for the mortgagee. The mortgagee has an equitable lien on the proceeds of the insurance for the satisfaction of his mortgage, regardless of whether the policy is made payable to him. National Bedding, supra; see also Sharp v. Pease, 193 Ark. 352, 99 S.W.2d 588 (1936).
It is well settled that if a sales contract contains a covenant or condition that the property shall be kept insured by the conditional purchaser for the benefit, protection, or better security of the conditional seller, and the former breaches the agreement by taking out insurance in his own name without assigning it or making it payable to the conditional seller, the agreement to insure, upon loss, creates an equitable lien on the insurance proceeds in favor of the conditional seller as against the conditional vendee to the extent of the former’s interest in the destroyed or damaged property.
44 Am. Jur. 2d Insurance Section 1741 (1982).
This equitable doctrine does not, however, provide a basis for recovery for the appellants because, as indicated above, their rights to the proceeds of the policy in question are no greater than Payne’s, who, because of his act of arson, could not recover. See Insurance Co. of North America v. Nicholas, 259 Ark. 390, 533 S.W.2d 204 (1976). Further, the equitable lien theory asserted by the appellants is not supported by the presence of the standard mortgage clause in the policy since, as in Insurance Co. of North America, supra, at 392, that clause was never activated, “because no mortgagee was named in the policy (as the clause required).” We also find the cases cited by the appellants are not persuasive, because none of them apply the “covenant to insure” doctrine in situations where the insured was not entitled to any proceeds of the policy.
756 S.W.2d 457
Affirmed.
Cracraft and Jennings, JJ., agree.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING SEPTEMBER 14, 1988
Per Curiam. Petition for rehearing is denied.
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John E. Jennings, Judge.
Appellant, Billy Don Lively, was charged with delivery of a controlled substance, cocaine, in violation of Ark. Stat. Ann. § 82-2617 (Repl. 1976) (now Ark. Code Ann. § 5-64-401 (1987)). The case was tried to the circuit court, sitting without a jury. Lively was convicted and sentenced to a term of 10 years imprisonment.
Appellant does not argue that the evidence is insufficient to establish that he sold cocaine but argues on appeal that he is entitled to reversal because the State failed to prove that cocaine is a “controlled substance” or that cocaine is a “narcotic drug.” We disagree and affirm.
The statute under which appellant was convicted, Ark. Stat. Ann. § 82-2617, provides in pertinent part:
(1) Any person who violates this subsection with respect to:
(i) a controlled substance classified in Schedule I or II which is a narcotic drug... is guilty of a felony and shall be imprisoned for not less than ten (10) years . . .For all purposes other than disposition, this offense is a class Y felony.
Arkansas Statutes Annotated § 82-2602 (Repl. 1976) provides that the commissioner shall administer the Controlled Substances Act and may add or delete substances from the schedules. Arkansas Statutes Annotated Section 82-2601(x) (Repl. 1976) (now Ark. Code Ann. § 5-64-101(x) (1987))defines the “commissioner” as the director of the Arkansas Department of Health or his duly authorized agent. Section 82-2606 (Repl. 1976) (now Ark. Code Ann. § 5-64-205 (1987)) establishes criteria to be used by the commissioner in placing substances in Schedule II. At the time of the offense the applicable Department of Health regulations listed cocaine as a controlled substance in Schedule II.
Arkansas Statutes Annotated § 82-2601(o)(4) (Repl. 1976) (now Ark. Code Ann. § 5-64-101(o)(4) (1987)) provides:
(o) “Narcotic drug” means any of the following. . .
(4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances
Thus, cocaine is defined as a “narcotic drug” under an Arkansas statute and is made a Schedule II controlled substance under the terms of a board regulation adopted in accordance with the statute.
In Johnson v. State, 6 Ark. App. 78, 638 S.W.2d 686 (1982), we said:
Appellant contends that as this regulation was not tendered for judicial notice or otherwise proved in the trial court we are required to reverse his conviction on jurisdictional grounds. It is not necessary to introduce evidence of statutes in this state. The court judicially knows them. [Citations omitted.] Nor is it necessary to introduce evidence of regulations of the State Health Department promulgated pursuant to statutory authorization. Courts take judicial notice of such rules and regulations of boards and agencies which are adopted pursuant to law. [Citations omitted.] As the regulation listing Meperidine as a Schedule II controlled substance was a matter within the judicial knowledge of the trial court it was not error for him to exercise the jurisdiction conferred by the regulation.
6 Ark. App. at 81, 638 S.W.2d at 688.
Appellant concedes that the trial court could have taken judicial notice of either matter but argues that it is error to do so absent a request by the state. He cites St. Paul Insurance Company v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980). There, in discussing a department of health regulation, the court said:
Judicial notice may be taken of that regulation, but the proper procedure is for the party relying on such judicial notice to aid the court or administrative law judge by calling attention to the regulation. Turnage v. Gibson, 211 Ark. 268, 200 S.W.2d 92 (1947); Unif. R. Evid. 201(d), Ark. Stat. Ann. § 28-1001 (Repl. 1979).
This portion of Touzin stands only for the proposition that one who has a legal argument based upon a state regulation should call the trial court’s attention to the regulation or risk being precluded from relying on it on appeal. The case at bar is not governed by Ark. R. Evid. 201 as that rule governs only judicial notice of adjudicative facts. The statute and regulations involved in this case do not constitute “adjudicative facts.” See United States v. Coffman, 638 F.2d 192 (10th Cir. 1980); United States v. Gould, 536 F.2d 216 (8th Cir. 1976). Even if this case were governed by Rule 201, that rule expressly authorizes the court to take judicial notice whether requested or not. Ark. R. Evid. 201(c).
Appellant also cites Pascall v. Smith, 263 Ark. 428, 569 S.W.2d 89 (1978). In Pascall the supreme court held that it had erred in taking judicial notice of what was clearly an adjudicative fact when the matter had not been raised in the trial court. Pascall has no application to the facts of this case.
We hold that it was unnecessary for the State to offer evidence to the trial court, sitting without a jury, that cocaine was listed by the Health Department as a Schedule II controlled substance or that cocaine is classified by the legislature as a narcotic drug.
Affirmed.
Mayfield and Coulson, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant, Gregory Sweat, was convicted of possession of a controlled substance, marijuana, with intent to deliver, and sentenced to eight years in the Arkansas Department of Correction and a fine of $6,000.00.
The evidence showed that a confidential informant identified a house at 817 Cartwright Street in Jonesboro, Arkansas, as a place where he could buy drugs. State Police Officer Roger Perry testified that on May 6, 1986, the informant entered that residence and made a controlled buy for police. Officer Perry described a controlled buy as one in which an informant is first searched to make sure he has no drugs or money on his person; he is then given a specific amount of money on which the serial numbers have been recorded and is sent to make the drug purchase, all the while being kept under visual surveillance and frequently wearing a voice monitor; when he returns and turns the contraband over to officers, he is again searched to make sure he is holding nothing back.
On the basis of the confidential informant’s controlled buy on May 6, a search warrant was obtained for the house at 817 Cartwright Street, where officers testified appellant lived. Officer Perry testified at trial that he obtained the warrant about 4:00 p.m.; telephoned the residence three times before getting an answer; then went to the residence about 9:00 p.m. with several other officers to conduct the search. There was testimony that appellant answered the door, was read his Miranda rights and let the officers into the house to search. When the officers arrived, there were two men in a car parked in the driveway and inside the house were appellant, his sister, and two other men. Shortly thereafter, appellant’s mother returned home and told officers she was the owner of the house.
In the northwest bedroom, officers found a large bundle of money, $1,126.00, in a dresser drawer containing women’s clothing. In the roll of money was a twenty dollar bill and a ten dollar bill that Officer Perry had given the informant that morning for the purpose of the controlled buy.
A chest in the other bedroom contained men’s clothing and two sandwich bags with marijuana in them. In the refrigerator, officers found two Ziploc bags containing marijuana, with $100.00 in one bag and $45.00 in the other. On the kitchen table, they found a set of scales and a package of cigarette rolling papers. In a canister on top of the freezer was more marijuana.
On appeal, it is argued that there was not substantial evidence to support the verdict. In reviewing the question of the sufficiency of the evidence in a criminal case, this court views the evidence in the light most favorable to the appellee and affirms the judgment if there is substantial evidence to support the findings of the trier of fact. Lane v. State, 288 Ark. 175, 702 S.W.2d 806 (1986); Harris v. State, 15 Ark. App. 58, 689 S.W.2d 353 (1985). Substantial evidence is that which is of sufficient force and character that it will, with reasonable and material certainty and precision compel a conclusion one way or the other, without resorting to speculation or conjecture. Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984). The fact that evidence is circumstantial does not render it insubstantial. Small v. State, 5 Ark. App. 87, 632 S.W.2d 448 (1982).
The case law is clear that actual or physical possession of the contraband is not required. Wade v. State, 267 Ark. 1101, 594 S.W.2d 43 (1980). Possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). If evidence is presented that indicates joint occupancy and occupancy is the only evidence the state offers to prove possession, there must be some additional link between the accused and the contraband. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982); Cary v. State, supra. Possession and control may be established by circumstantial evidence but such evidence must exclude every other reasonable hypothesis beyond a reasonable doubt. Whether that has been done is usually for the jury to determine, Deviney v. State, 14 Ark. App. 70, 685 S.W.2d 179 (1985), and, on appeal, the standard of review is one of substantial evidence. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).
In Cary v. State, supra, the Arkansas Supreme Court considered the sufficiency of the evidence against an appellant who was one of three occupants of an apartment where heroin had been discovered. The court said:
Constructive possession of a controlled substance means knowledge of its presence and control over it.. . . Neither actual physical possession at the time of arrest nor physical presence when the offending substance is found is required .... As a matter of fact, neither exclusive nor physical possession is necessary to sustain a charge if the place where the offending substance is found is under the dominion and control of the accused. [Citations omitted.]
259 Ark. at 517. The court also quoted from a California case as follows:
Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.
259 Ark. at 517. The court in Cary also made clear the following:
When the evidence of possession is purely circumstantial, there must be some factor, in addition to joint occupancy of the place where narcotics are found, linking the accused with the narcotic in order to establish joint possession.
259 Ark. at 518.
In the instant case, there was some evidence to indicate that the appellant did not live with his mother at 817 Cartwright and that he had a brother in prison to whom the men’s clothing found in one of the bedrooms might belong. However, there was other evidence to show that appellant did occupy the house with his mother. Two law enforcement officers testified that the appellant lived there, and there was testimony that the appellant opened the door and let the officers in when they came to execute the search warrant. There was testimony that the appellant had been seen at this house on numerous occasions by both his friends and by police officers. And one of appellant’s own witnesses testified that if he wanted to find appellant at home, “I would have went to his house ... on Cartwright.” It is the province of the trier of fact to resolve any conflicts in the testimony and to determine the credibility of the witnesses, Austin v. State, 268 Ark. 373, 596 S.W.2d 691 (1980), and the fact finder’s conclu sion on credibility is binding on the appellate court, Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). We think there was sufficient evidence from which the jury could find that appellant lived with his mother in the house on Cartwright Street.
However, as we have seen, joint occupancy of the house is not, by itself, sufficient to support a finding that appellant was in constructive possession of the marijuana found in that house. A recent decision of the Arkansas Supreme Court explained the matter as follows:
We agree the evidence might not have been sufficient had the only evidence been that the contraband was found in some portion of a structure occupied by the appellant and others. In Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982), we reversed a conviction for possession of drugs found in a bedroom. The reversal came, in part, because there was no testimony showing whose bedroom it was, and the residence in question was occupied by several persons. However, in Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976), we held that joint occupancy coupled with “some factor . . . linking the accused with the narcotic” is sufficient. 259 Ark. at 518,534 S.W.2d at 236.
Denton v. State, 290 Ark. 24, 26, 716 S.W.2d 198 (1986).
Therefore, in the instant case, our next question is whether there is evidence of some factor in addition to joint occupancy that will support a finding of constructive possession by appellant of the marijuana found by the officers in the house on Cartwright. We think there is substantial evidence to make the necessary link.
We start with the evidence that there was a total of more than two ounces of marijuana found in the house, and under Ark. Stat. Ann. § 82-2617(d) (Supp. 1985) [Ark. Code Ann. § 5-64-401 (1987)], the possession of more than one ounce creates a rebuttable presumption that the marijuana is possessed with intent to deliver. Some of the marijuana was found in the refrigerator and on top of the freezer — common areas of the house which all occupants would be presumed to use. In addition, drug paraphernalia was found on the kitchen table. The officers also found almost $ 1,300.00 in the house. Some of this money was with the marijuana in the refrigerator and some in a dresser drawer containing women’s clothing. Included with the money found in this drawer were some marked bills which had been used by the informant to purchase marijuana at this house on the very same day of the search. Moreover, Officer Perry testified that before the officers went to the house to execute the search warrant, he telephoned the house three times before getting an answer. The third time, a female answered and he asked for the appellant and a man came to the telephone. Perry testified that he told the man he wanted to buy some marijuana and “he said he didn’t know me.”
From the above evidence, we think the jury could have found that marijuana was being sold from the house on Cartwright Street and that the appellant knew this and was an active participant in the enterprise. We think that all of this, plus the marijuana found in the chest containing men’s clothing, constitutes substantial evidence to support the appellant’s conviction.
Affirmed.
Cooper and Jennings, JJ., agree. | [
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George K. Cracraft, Judge.
The sole issue presented by this appeal is whether a constable is authorized to make an arrest and issue a valid citation charging one with the offense of driving a motor vehicle while intoxicated, first offense, which is committed in his presence within the township for which he was elected. We conclude that he is.
Walter H. Credit was stopped, arrested, and issued a citation to appear and answer the charge of driving a motor vehicle while intoxicated. The arrest was made in Danley Township, Faulkner County, Arkansas, by a duly elected constable of that township who personally observed the conduct for which the appellant was charged. The appellant does not contend that the evidence was not sufficient to sustain his conviction of the offense but argues only that the trial court erred in not granting his motion to dismiss the charge on the ground that the constable lacked authority to arrest him or issue a citation for the offense. We disagree and affirm the conviction.
The authority for constables to make arrests is found in Ark. Code Ann. § 16-19-301 (1987) (formerly Ark. Stat. Ann. § 26-210 (Repl. 1962)). That section provides that constables shall be conservators of the peace, shall suppress riots, affrays, fights, and unlawful assemblies, and shall make arrests for such breaches of the peace. It further provides that, “[i]f any offense cognizable before a justice of the peace in his township is committed in his presence, the constable shall immediately arrest the offender and cause him to be dealt with according to law.”
Article 7, § 40, of the Arkansas Constitution declares those matters which shall be cognizable before a justice of the peace. It provides that justices of the peace shall have original and concurrent jurisdiction with other named courts as to specific civil matters and “such jurisdiction of misdemeanors as is now, or may be, prescribed by law.” The legislature has vested in justices of the peace “jurisdiction in all [criminal] matters, less than felony,” provided that the circuit courts shall have concurrent jurisdiction in all such cases. Ark. Code Ann. § 16-88-101(a)(3)(B) (1987) (formerly Ark. Stat. Ann. § 43-1405 (Repl. 1977)). The offense of driving while intoxicated is less than a felony, unless one is found guilty of a fourth or subsequent offense occurring within three years of the first one. Ark. Code Ann. § 5-65-111 (1987) (formerly Ark. Stat. Ann. § 75-2504 (Supp. 1985)). As the appellant was charged with driving while intoxicated, first offense, he was charged with less than a felony.
Appellant contends that a municipal court has been established in the City of Conway, Faulkner County, Arkansas, and that the legislation allowing for its creation abolishes all criminal jurisdiction of justices of the peace in those counties in which municipal courts are established. See Ark. Code Ann. §16-17-206(a)(2) (1987) (formerly Ark. Stat. Ann. § 22-709 (Repl. 1962)). His reliance on Albright v. Karston, 206 Ark. 307, 176 S.W.2d 421 (1943), as supporting this argument is misplaced. Albright declared that the only change that legislation made in the jurisdiction of justices of the peace over criminal matters was to deprive them of jurisdiction over misdemeanors occurring “in townships affected by the act.” The court later declared that, although municipal courts have countywide jurisdiction of misdemeanors, that jurisdiction is concurrent with that of the justices of the peace in all townships except the township in which the municipal court sits. Therefore, only in the township in which the municipal court sits is its jurisdiction exclusive of the jurisdiction of justices of the peace. Lee v. Watts, 243 Ark. 957, 423 S.W.2d 557 (1968); Logan v. Harris, 213 Ark. 37, 210 S.W.2d 301 (1948).
Here the arrest was made in Danley Township by a constable for that township who observed the occurrence. Although the record does not disclose the township in which the City of Conway is located, courts may take judicial notice of political subdivisions and divisions and locations of townships within counties. Lee v. Watts, supra; St. Louis, Iron Mountain & Southern Railway Co. v. State, 68 Ark. 561, 60 S.W. 654 (1901). We therefore note that the City of Conway is not located in Danley Township, and conclude that the arrest and the citation issued by the constable in this case were lawful and sufficient to sustain the conviction.
Appellant finally contends that the action of the constable could not be sustained in any event because, as he was not qualified to act as a “law enforcement officer” under Ark. Code Ann. §§ 12-9-101 etseq. (1987) (formerlyArk.Stat. Ann. §§42-1001 et seq. (Repl. 1977)), any official action taken by him as a police officer is to be held as invalid. We disagree. The Act on which appellant relies purports to apply only to appointed officers, and constables, as officers “elected by a vote of the people,” are not subject to its provisions. Ark. Code Ann. § 12-9-102(1) (1987) (formerly Ark. Stat. Ann. § 42-1001(a) (Repl. 1977)).
Affirmed.
Corbin, C.J., and Mayfield, J., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes from Searcy County Circuit Court. Appellant, Sterling Timothy Mullins, appeals his conviction of murder in the second degree and the sentence imposed therefor. We find error and reverse and remand.
A felony information was filed March 23, 1987, charging appellant with murder in the first degree, a violation of Arkansas Code Annotated § 5-10-102 (Supp. 1987) (formerly Ark. Stat. Ann. § 41-1502 (Supp. 1985)). Appellant was found guilty on the reduced charge of murder in the second degree in violation of Arkansas Code Annotated § 5-10-103 (1987) (formerly Ark. Stat. Ann. § 41-1503 (Repl. 1977)) and was sentenced to ten years imprisonment and a fine of $5,000 plus costs. From this conviction and fine, comes this appeal.
For reversal, appellant asserts the following: (1) The trial court erred in failing to direct a verdict for appellant; (2) the trial court erred in allowing Dr. Fahmy A. Malak to testify as to the blood type of Thomas Lafoon; and (3) the trial court erred in not granting a mistrial after Officer Cornett alluded to offering a polygraph examination to the defendant.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Nelke v. State, 19 Ark. App. 292, 720 S.W.2d 719 (1986). Although we find reversible error on other grounds, we will address appellant’s challenge to the sufficiency of the evidence prior to considering any alleged trial error as required by Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The court must consider all evidence, including any which may have been inadmissible, in the light most favorable to the appellee and affirm if there is substantial evidence to support the verdict. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable and material certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Phillips v. State, 17 Ark. App. 86, 703 S.W.2d 471 (1986).
The evidence reflects that on December 30, 1986, a fire destroyed Thomas Lafoon’s residence in a rural area north of Marshall, Arkansas. The skeletal remains of Mr. Lafoon were found among the debris. While investigators were at the scene on that day, appellant approached the victim’s homesite on foot then turned and walked in the opposite direction. Keith Cornett, an investigator for the Arkansas State Police, saw appellant and shouted for him to come back. Mr. Cornett’s testimony reveals that appellant was nervous, his stomach was jerking, and his coat had what appeared to be blood stains on it.
A1 Castro, an investigator for the Searcy County Sheriffs Office walked up at that time and after asking questions determined that appellant knew the victim and helped him unload and move a couch into his home the night before.
At that time, appellant was taken to the sheriff’s office for questioning. Appellant then gave his first statement identifying himself and signing his rights form with the alias name of Jeffery Shipley. During this questioning, appellant related that on the evening of December 28, 1986, the victim came to his house asking for help unloading a couch. Appellant had company but agreed to help the victim the following night. Appellant asserted that on December 29,1986, he helped his brother cut wood then went to the victim’s home between 5:30 p.m. and 6:00 p.m. to help with the couch. Appellant alleged that the victim was asleep and drunk when he arrived. Appellant said they drank vodka and then he left the victim asleep on the couch and went home at 8:00 p.m. or 9:00 p.m. and also went to sleep. He alleges he was told of the fire on December 30, 1986, at about 2:30 p.m.
During the first statement, appellant did not know how he got blood on his coat. He explained that he got the cuts on his hand and the scratch over his eye while cutting wood but could offer no explanation for the other injuries and bruises on other parts of his body.
Appellant was interviewed again on the following day, December 31,1986, and offered a new statement explaining the events on December 29,1986. He said that he laid his jacket over a chair inside the victim’s home while they moved the couch. While bringing the sofa through the patio sliding door, the victim tripped and fell through the door knocking the glass inside the house. The victim allegedly received several small cuts which could have gotten on appellant’s jacket in the fall.
A third interview was scheduled for appellant to take a polygraph test; however, he refused to take the test when the officer informed appellant that he knew his real name was Sterling T. Mullins rather than Jeffery Shipley.
R.C. Rea with the Arkansas Forestry Commission testified that he arrived at the scene of the fire at approximately 1:30 p.m. on December 30, 1986, and estimated that the fire had been burning at least twelve hours based upon the weather and breeze conditions.
Marlee Stancell, who lives near the victim’s home, testified that he heard a gunshot between 8:00 p.m. and 9:00 p.m. on December 29, 1986, followed by an explosion at 2:00 a.m. on December 30, 1986. Mr. Stancell stated that the shot sounded like it came from a high-powered rifle.
Expert testimony was presented that the victim died as a result of a .22 caliber bullet wound to the left side of his head. Also, there was evidence that the victim was right-handed and it would have been virtually impossible for him to commit suicide considering the location of the wound and path of the bullet. Five firearms were found in the remains, including a .22 caliber gun with nine spent cartridges. Other physical evidence at the scene indicated that the glass from the patio door was outside the house rather than inside. The evidence revealed that the victim had blood type O and appellant blood type A. The blood on appellant’s jacket and left boot was blood type O. On his right boot, blood type A was found.
The fact that appellant used an alias evidenced a consciousness of guilt. Kidd v. State, 24 Ark. App. 55, 748 S.W.2d 38 (1988). Also, appellant related different versions of the events prior to the victim’s death and for the blood stains on his jacket. The Arkansas Supreme Court has held that a defendant’s false, improbable and contradictory statements explaining suspicious circumstances may be considered by the jury as proof of guilt. Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987); Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986).
Appellant argues that the facts of this case are insufficient to support his conviction. We disagree. Guilt need not always be proven by direct evidence. Circumstantial evidence can present a question to be resolved by the trier of fact and be the basis to support conviction. Yandell v. State, 262 Ark. 195, 555 S.W.2d 561 (1977). We have often said that the fact that evidence is circumstantial does not render it insubstantial. See, e.g., Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987). The jury is allowed to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. Payne v. State, 21 Ark. App. 243, 731 S.W.2d 235 (1987).
Viewing the above and all evidence of record in the light most favorable to appellee, we find substantial evidence from which the jury could have found appellant guilty of second degree murder without resorting to surmise and conjecture. Therefore, we affirm as to appellant’s first point for reversal.
Secondly, appellant argues the trial court erred in allowing Dr. Fahmy Malak to testify as to the victim’s blood type. We agree. During direct examination the State elicited information from Dr. Malak regarding the victim’s naval records which were in Dr. Malak’s possession. The court overruled appellant’s hearsay objection and, under A.R.E. Rule 803(6) (business records exception), allowed Dr. Malak to testify from the victim’s naval records, that his blood type was O. Further Dr. Malak testified that blood type O was identified on appellant’s jacket.
Allowing Dr. Malak to testify from the naval records of the victim might have been accomplished under A.R.E. Rule 803(6) (business records exception) or Rule 803(8) (public documents exception), among other possible exceptions to the hearsay rule. The hearsay exception rules require that certain foundation requirements be established before records may be admitted into evidence. Here, the victim’s naval records were not introduced into evidence; therefore, we cannot determine if there was compliance with the foundation requirements. For the reasons stated above, we find the trial court erred by overruling appellant’s objection.
Lastly, appellant argues that the trial court erred in not granting a mistrial after Officer Cornett alluded to offering a polygraph examination to appellant. We agree. During direct examination, the officer stated that he asked appellant “if he would take a polygraph exam.” Appellant’s counsel objected and the court admonished the jury to “not put any degree of evidentiary value on the word ‘polygraph.’ Simply play like it didn’t exist.”
A mistrial is an extreme remedy which should be resorted to only where there has been an error so prejudicial that justice cannot be served by continuing the trial and there is no other method by which the prejudice can be removed. Daley v. State, 20 Ark. App. 127, 725 S.W.2d 574 (1987). The question on appeal is whether the trial court abused its discretion in failing to grant a mistrial. Ellis v. State, 4 Ark. App. 201, 608 S.W.2d 871 (1982).
Both parties agree that the settled rule in Arkansas is that polygraph tests are not admissible in criminal cases without mutual agreement, and absent such agreement or justifiable circumstances, any reference to a polygraph test constitutes error. See Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980). Appellee admits that the officer’s statement regarding the polygraph was not admissible, yet argues that it did not result in prejudice so pronounced as to warrant a mistrial.
In Van Cleave, the court found that reference to the test during closing argument was not prejudicial because the polygraph was mentioned twice during the trial by a witness, without objection. In the case at bar, the polygraph was only mentioned during Officer Cornett’s testimony. From this testimony, the jury could only conclude that appellant refused to take the polygraph test or that he took the test but failed. Under these circumstances, the trial court abused its discretion in refusing to grant a mistrial.
For the reasons stated, the judgment against appellant is reversed and the case remanded.
Reversed and remanded.
Cracraft and Jennings, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
Appellant, James R. Phillips, appeals a decision of the Sebastian County Circuit Court revoking his suspended sentence imposed on a plea of guilty, entered July 21, 1986, to a charge of one count of possession of amphetamines with intent to deliver and one count of possession of drug paraphernalia. We affirm.
A petition to revoke was filed April 8, 1987, alleging appellant failed to pay the fine and costs imposed as a condition of his suspended sentence. Additionally, the petition alleged that on April 3,1987, appellant committed the offenses of possession of a controlled substance with intent to deliver and possession of drug paraphernalia, thereby violating the terms of his suspended sentence. The trial court conducted two hearings which clearly establish that appellant and his vehicle were stopped and searched on April 3,1987, based upon information received from reliable police informants. The arresting officer testified that he was informed that appellant and another person would be coming to Fort Smith in appellant’s vehicle with Arkansas license NWJ-388, in possession of a quantity of a controlled substance, methamphetamine. The officer testified that the search revealed hypodermic syringes, small plastic bags containing off-white residue, marijuana residue and partially smoked marijuana cigarettes in the back of appellant’s truck, additional controlled substances and similar drug paraphernalia under the front seat, as well as a substance which tested to be methamphetamine in appellant’s wallet. The officer also testified that appellant had needle marks on his arm.
In addition, an employee of the prosecuting attorney’s office testified that appellant was in arrears in paying the fine and costs assessed in his 1986 conviction. The testimony reveals that even though appellant was required to pay $100.00 monthly, no payments were received after December 6, 1986, leaving an unpaid balance of $1,146.25. This testimony was substantiated by a deputy sheriff whose job includes keeping circuit court records of fine payments. His records reveal that appellant made only four $100.00 payments prior to his 1987 arrest.
Appellant’s wife testified that they were unable to make regular payments on appellant’s fine and costs. In support of this contention, she testified that appellant became self-employed in the latter part of 1986 causing irregularity of income. She also testified that their child had surgery during this period of time and they were responsible for their financial obligations, as well as support for appellant’s brother and sister. Appellant’s wife also stated that she was aware of appellant’s drug habit but did not know how much of his income was expended to maintain that habit. Also, she was not surprised that appellant had $800.00 on his person at the time of his 1986 arrest and $ 100.00 at the time of his 1987 arrest. Appellant made a statement at the second hearing acknowledging his drug addiction problem.
Appellant raises the following two points for reversal: (1) The trial court failed to prepare and furnish to the appellant a written statement of the evidence relied on and the reasons for revoking appellant’s suspended sentence; and (2) the trial court erred in finding that the State proved by a preponderance of the evidence that the conditions of appellant’s suspended sentence were violated.
We will first address appellant’s argument that the judgment of the trial court is contrary to the preponderance of the evidence. Appellant argues that he made bona fide efforts to acquire the resources to pay his fine and costs, and his inability to pay is excusable because of his numerous and substantial obligations. Furthermore, appellant questions the sufficiency of the evidence of the crimes of possession of a controlled substance and possession of drug paraphernalia resulting from the 1987 arrest.
In a hearing to revoke, the State bears the burden to prove the violation of a condition of the suspended sentence, and on appellate review, the trial court’s findings are upheld unless they are clearly against the preponderance of the evidence. Cavin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984). A determination of preponderance of the evidence turns heavily on questions of credibility and weight to be given the testimony and in that respect we defer to the superior position of the trial court. Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986). Furthermore, the rules of evidence do not apply to proceedings for granting or revoking probation. Fitzpatrick v. State, 7 Ark. App. 246, 647 S.W.2d 480 (1983).
Based upon the evidence presented in the instant case, we cannot say that the court’s findings that appellant violated the conditions of the judgment suspending imposition of sentence were clearly against the preponderance of the evidence with regard to the 1987 crimes being questioned by appellant in this appeal. Additionally, as to appellant’s argument that his inability to pay the fine and costs was due to excusable circumstances, we defer to the superior position of the trial court and affirm its findings.
Appellant also argues that the trial court erred by not furnishing him a written statement of the evidence relied on and the reasons for revoking his suspended sentence as required by Arkansas Code Annotated 5-4-310(b) (5) (1987) (formerly Ark. Stat. Ann. § 41-1209(2) (Repl. 1977)).
We have held that when an error is alleged, prejudice must be shown, since we do not reverse for harmless error. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985). One purpose of the written statement in question is to permit the defendant to know the precise basis of the trial court’s decision so that he or she may conduct an intelligent appeal. See Hawkins v. State, 270 Ark. 1016, 607 S.W.2d 400 (1980). Here, the defense has failed to show the prejudicial effect of not receiving a written statement. Appellant was amply informed of the court’s reason for setting aside his suspended sentence. Appellant received two separate hearings on the petition to revoke which set out in detail the alleged violations of the conditions of his suspended sentence. He attended both hearings and even made a statement at the latter. Accordingly, the trial court must be affirmed on this point.
Affirmed.
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Pulaski County Circuit Court, Third Division. Appellant, Robert Whitfield, appeals from the order dismissing his appeal of the decision rendered by the Little Rock School District Board of Education regarding termination of his employment. We affirm.
Appellant, a second grade teacher in the Little Rock School District, received a letter from his principal, Mary Guinn, on January 9, 1986, alleging that he had grossly neglected his responsibility to handle behavior problems and disruptions on twelve occasions despite prior conferences on the matter. The letter noted that failure to correct the problem would necessitate probationary status pursuant to the Professional Negotiations Agreement (hereinafter “PNA”), an agreement between the Little Rock School District (hereinafter “District”) and the Little Rock Classroom Teacher’s Association, and requested that appellant discuss the matter with her as soon as possible. On February 21,1986, Principal Guinn notified appellant in writing that he was being placed on 60 days probation in accordance with Article VI, Section B of the PNA for failing to render efficient and competent instructional service. The letter referred to deficiencies in planning, instructional procedures, handling behavior problems, classroom organization and management, record keeping, report handling and other concerns. Pursuant to the PNA and in conformance therewith, appellant filed a grievance with Principal Guinn alleging that he was improperly evaluated in violation of Article XIX, Section F of the PNA and requested that his probation be rendered invalid. Principal Guinn notified appellant on March 3, 1986, that she agreed that a procedural error had been made and removed appellant from probationary status. On March 4, Principal Guinn, after obtaining authorization from the superintendent of schools, notified appellant that he was suspended from employment with pay in accordance with Article VI, Section C of the PNA. In a letter dated March 24, Principal Guinn stated that “the reason for your suspension is that five (5) fights occurred in your classroom prior to 12:45 p.m. on March 4, 1986. You were observed on three out of the five fights to be standing in the middle of the classroom as though you had neighter [sic] seen nor heard anything.” The letter also informed him that a conference was held on the same day with a parent of one of his students who alleged that appellant threw a wastebasket at her child.
Appellant filed a grievance alleging a violation of Article VI, Section B which allows 60 contract days to remedy deficiencies in efficient and competent service. Appellant asserted that the suspension was in reprisal for the grievance filed successfully against Principal Guinn. The grievance was presented to his principal, the superintendent of schools and finally to the Little Rock District Board of Education (hereinafter the “Board”). The grievance was denied at all levels on the basis that the incidents occurring on March 4, 1986, were conduct sufficient to warrant the suspension. Pursuant to Arkansas Code Annotated § 6-17-1510(d) (1987) the decision rendered by the Board was appealed to Pulaski County Circuit Court. The trial judge, sitting as a jury, affirmed the Board’s decision and dismissed the appeal. From that judgment comes this appeal.
For reversal, appellant alleges that the circuit court erred by dismissing appellant’s claim that the Little Rock School District breached the PNA. We disagree. Appellant essentially argues that under the terms of the PNA he was entitled to 60 contract days to remedy the deficiencies for which he was terminated because his actions were improperly characterized as conduct seriously prejudicial to the best interest of the school system.
Appellee argues that the Board’s decision must be upheld unless it was arbitrary, capricious or discriminatory pursuant to the Teacher Fair Dismissal Act. Appellee asserts that the PNA is merely a voluntary effort on the part of the District to define the relationship between the District and its teachers. However, pursuant to Arkansas Code Annotated § 6-17-204(a) (1987) the personnel policies of each district are incorporated as terms of the employment contract and are binding upon both parties unless changed by mutual consent. Although the PNA may have been a voluntary effort on the part of the District, it is policy which is to be incorporated pursuant to the statute. The standard of arbitrary and capricious under the Teacher Fair Dismissal Act may be displaced where the incorporated policies govern the issue of teacher dismissal and expand the teacher’s rights by contract. As the supreme court recently noted in Murray v. Altheimer-Sherrill Public Schools, 294 Ark. 403, 743 S.W.2d 789 (1988), as a matter of contract law and fair dealing a teacher may reasonably expect the district to comply substantially with its own declared policies even though such policies do not have the force of law. Id. at 410, 743 S.W.2d at 792 (quoting Maxwell v. Southside School Dist., 273 Ark. 89, 618 S.W.2d 148 (1981)). Whether a provision of the PNA was violated in the present case is a matter of contract law, and traditional contract principles apply to teacher employment contracts. See Maddox v. St. Paul School Dist., 16 Ark. App. 112, 697 S.W.2d 130 (1985). We will reverse only if we find, on review of the trial court’s decision, that the court’s findings were clearly erroneous. Murray at 406, 743 S.W.2d at 790.
Teacher dismissal is governed by Article VI of the PNA. The two sections of Article VI pertinent to this appeal deal with the termination and non-renewal of tenured teachers and teacher suspension. Section B regarding the termination and non-renewal of tenured teachers states in pertinent part:
1. A tenure teacher will not be discharged or non-renewed for arbitrary or capricious reasons or without justification. The annual contract of all teachers on tenure shall be renewed unless the following procedure has been pursued
a. Any teacher who is not rendering efficient and competent service shall be given written notice of the particular areas in which such service is considered to be inefficient and incompetent. ... A teacher, so charged, will be given sixty (60) contract days to remedy the alleged deficiencies.
Section C, under which appellant was charged, governs teacher suspension and states in pertinent part:
The contract of any teacher who engages in conduct seriously prejudicial to the best interest of the school system may be suspended with pay at any time. Upon suspension, the teacher will receive a list of the specific charges that led to the suspension.
Appellant alleges that he was discharged for not rendering efficient and competent “service” under Section B(l)(a) rather than “conduct” seriously prejudicial to the best interest of the school system under Section C and was thus entitled to 60 days probation. However, he offered no proof at the trial court level that the Board deviated from an established definition in classifying his deficiencies as “conduct” rather than “service.” Instead, he now urges on appeal that we adopt the standard of remediation used by other jurisdictions to differentiate the two terms. The remediation standards cited are mandated by statute in the respective jurisdictions. We have no comparable statute and adoption of such standard would amount to legislating by this court.
The question of whether certain actions constituted “conduct” or inefficient “service” is one of fact to be resolved by the trier of fact; in this case, the Board. On appeal to the circuit court, the trial judge must be satisfied that there was substantial evidence to support the Board’s characterization of appellant’s actions as violative of Article VI Section C. In the absence of proof that the provisions were interpreted differently by the Board in this case than in others, appellant failed to meet his burden that the provisions were violated. We cannot say that the trial court’s finding that the appeal should be dismissed based upon the evidence presented is clearly erroneous.
Affirmed.
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John E. Jennings, Judge.
General Waterworks Company of Pine Bluff (GWPB) applied to the Arkansas Public Service Commission for a rate increase to produce additional revenues of $726,230.00, which would represent an increase of about 17.98 %. The PSC granted appellant an increase of $255,627.00. Both of appellant’s points for reversal relate to the appellee’s treatment of the financial relationship between appellant and its parent corporation, General Waterworks Corporation (GWC), a holding company whose assets consist of General Waterworks Company of Pine Bluff and other utility and business operations nationwide. We affirm the decision of the Arkansas Public Service Commission.
Arkansas Code Annotated Section 23-2-423(c)(3), (4), and (5) (1987) defines and limits our scope of review:
(3) The finding of the commission as to the facts, if supported by substantial evidence, shall be conclusive.
(4) The review shall not be extended further than to determine whether the commission’s findings are supported by substantial evidence and whether the commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or of the State of Arkansas.
(5) All evidence before the commission shall be considered by the court regardless of any technical rule which might have rendered the evidence inadmissible if originally offered in the trial of any action at law or in equity.
And our Supreme Court recently stated:
While we would reverse a decision where confiscatory rate making was evident, Public Service Comm’n v. Continental Tel. Co., 262 Ark. 821, 561 S.W.2d 645 (1978); Chicago M. St. P. Ry. Co. v. Minnesota ex rel. Railroad & Warehouse Comm., 134 U.S. 418 (1890), we are not concerned with the method the commission used, and the court of appeals approved, to determine the rate needed to supply the company adequately with working capital. General Tel. Co. v. Arkansas Public Service Comm’n, 272 Ark. 440, 616 S.W.2d 1 (1981).
* * * *
As long as the decision falls within the “zone of reasonableness” we cannot find it was confiscatory. Public Service Comm’n v. Continental Tel. Co., supra.
General Telephone Co. of the Southwest v. Arkansas Public Service Comm’n, 295 Ark. 595, 599-600, 751 S.W.2d 1 (1988).
The appellant calculated its adjusted test year rate of return on its rate base to be 8.41 %. After hearings on the application, the Commission calculated the test year return to be 7.34% instead of 8.41 % and increased the allowed rate to 8.58 %. In this appeal, appellant seeks relief which would increase its allowed return on rate base to 9.09% and give it additional revenue of about $75,000.00.
Because appellant is a wholly-owned subsidiary of GWC, its stock is not publicly traded. Therefore, the calculation of an allowable fair return on GWPB’s stockholder’s equity is accomplished through the use of “double leverage.” Double leverage means that the overall cost of capital for the parent corporation is the cost of equity to be allowed the subsidiary company in calculating the rates the subsidiary may charge its consumers. Double leverage carries with it an implicit recognition of the concept of fungibility of funds, in the sense that all the shareholder’s equity and all the various liabilities of the parent company are not identifiable or traceable and aggregately fund the assets of the subsidiary. The validity of the concept of double leverage has been recognized in several cases and is not in question here. General Telephone Co. of the Southwest v. Arkansas Public Service Comm’n, 23 Ark. App. 73, 744 S.W.2d 392 (1988), aff'd, 295 Ark. 595, 751 S.W.2d 1 (1988); see also General Telephone Co. v. Arkansas Public Service Comm’n, 272 Ark. 440, 616 S.W.2d 1 (1981); Arkansas Public Service Comm’n v. Lincoln-Desha Telephone Co., 271 Ark. 346, 609 S.W.2d 20 (1980).
In applying the principle of double leverage, it is first necessary to derive the parent corporation’s overall cost of capital, which is then imputed to the subsidiary as its cost of shareholder’s equity. Two items involved in that calculation, Accumulated Deferred Income Taxes (ADIT) and deferred income items relating to income to be realized in the future from installment sales of corporate property, are at issue here. The appellant also disagrees with the classification of these items on the liabilities side of GWC’s balance sheet, from which appellant’s cost of equity is derived.
ADIT is an item recognized on a company’s books to provide funds to meet contingent tax liabilities in the event that proceeds from sales of property are not reinvested in such a manner as to avoid tax liability. The Commission accepted the recommendation of the PSC Staif that ADIT and deferred income items booked by the parent corporation (GWC) as liabilities be included in the cost of capital calculation as cost-free. Appellant contends that ADIT may not be considered a cost-free source of capital because the amounts booked are, in reality, part of the capital gain realized on the sale of property and, as such, should be considered as an asset despite the fact that they appear on the liability side of the balance sheet. Further, appellant contends that, even if GWC’s ADIT is included in its cost of capital calculation, it would carry a potential cost consisting of interest payable to the Internal Revenue Service if the tax liability is not avoided by qualified reinvestment. Appellant also argues that the balances of the deferred income accounts on GWC’s books, likewise booked as liabilities, should not be included as zero-cost sources of capital at all or, alternatively, should carry a cost equivalent to the return on equity the PSC allowed the shareholder (GWC) in this case, which is 11.77%.
The appellee essentially contends that inclusion of ADIT and deferred income balances in the parent corporation’s cost of capital calculation is proper on the basis that, if something is booked as a liability, then it is a liability, and all liabilities represent funding sources available to fund various corporate assets, one of which in this case is GWPB. This concept that the right side of the balance sheet (liabilities) fund the left side (assets) is one of the bases of a working capital methodology known as the “Modified Balance Sheet Approach” (MBSA). The use of the MBSA to determine the working capital requirement of a utility has been discussed in previous decisions of this Court and our Supreme Court. General Telephone Co. of the Southwest v. Arkansas Public Service Comm’n, 23 Ark. App. 73, 744 S.W.2d 392 (1988), aff'd, 295 Ark. 595, 751 S.W.2d 1 (1988). While the MBSA was not applied to determine GWC’s working capital here as it was in those cases (although the MBSA apparently was applied to appellant, GWPB, for that purpose) its basic premise, that all liabilities are to be treated alike, controlled the PSC’s treatment of GWC’s funding sources in this case. The Commission found that the appellant’s position as to these liabilities on its parent corporation’s books would require tracing of specific items of capital funding sources which would, of course, be inconsistent with the concept of fungibility of funds.
We do not accept the company’s position that the ADIT bear interest which must be paid to the IRS. Because ADIT represent only a contingent liability, the cost associated with that liability cannot be determined unless and until a taxable event occurs.
Although the appellee was presented with expert testimony by the appellant in support of its position in this case, there was also testimony from expert witnesses which supports the result reached by the Commission. From our review of the record, we cannot say that the PSC’s findings as to nature and cost of ADIT and deferred income accounts were not supported by substantial evidence. On review, our inquiry is concluded if the factual determinations of the Commission are supported by substantial evidence and are not confiscatory. General Telephone, supra. Because the result reached in this case cannot be said to be confiscatory and the findings of the Commission are supported by substantial evidence, we affirm.
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Melvin Mayfield, Judge.
Delbert Bass appeals a judgment on a guaranty agreement for appellee, Service Supply Company, Inc. On appeal, appellant argues that the trial court’s findings are clearly erroneous. We disagree and affirm.
Since approximately 1970, appellant and his wife, Mary Bass, were the sole shareholders of a corporation entitled Bass Plumbing, Heating & Cooling, Inc. Appellee later began selling materials to Bass Plumbing, Heating & Cooling on open account. After a period of time, in 1983, appellant signed a guaranty agreement for credit extended by appellee to Bass Plumbing, Heating & Cooling. This guaranty provided as follows:
I/WE HEREBY AUTHORIZE SERVICE SUPPLY COMPANY, INC. THE RIGHT TO RECEIVE ANY INFORMATION PERTAINING TO MY/OUR CREDIT WITH THE ABOVE REFERENCES, BANKS, OTHER CREDITORS OR CREDIT BUREAUS. GUARANTY IS GIVEN BY THE UNDERSIGNED TO SERVICE SUPPLY COMPANY, INC., HEREINAFTER CALLED THE COMPANY, IN ORDER TO INDUCE IT TO EXTEND CREDIT TO, OR OTHERWISE BECOME THE CREDITOR OF THE APPLICANT. I/WE HEREBY GUARANTEE TO THE COMPANY THE PROMPT PAYMENT, WHEN DUE, OF EVERY CLAIM OF THE COMPANY WHICH MAY HEREAFTER ARISE IN FAVOR OF THE COMPANY AGAINST THE APPLICANT. THIS IS A CONTINUING GUARANTY AND SHALL REMAIN IN FORCE UNTIL REVOKED BY ME/US BY NOTICE IN WRITING TO THE COMPANY, BUT SUCH REVOCATION SHALL BE EFFECTIVE ONLY AS TO CLAIMS OF THE COMPANY WHICH ARISE OUT OF TRANSACTIONS ENTERED INTO AFTER ITS RECEIPT OF SUCH NOTICE. THIS OBLIGATION SHALL COVER THE RENEWAL OF ANY CLAIMS GUARANTEED BY THIS INSTRUMENT OR EXTENSIONS OF TIME OF PAYMENT THEREOF, AND SHALL NOT BE AFFECTED BY ANY SURRENDER OR RELEASE BY THE COMPANY OF ANY OTHER SECURITY HELD BY IT FOR ANY CLAIM HEREBY GUARANTEED. I/WE CERTIFY THAT I/WE HAVE READ, UNDERSTAND, AND AGREE TO THE TERMS AND CONDITIONS ABOVE AND ON THE REVERSE SIDE OF THIS APPLICATION.
In signing the guaranty, appellant did not indicate his title or position with Bass Plumbing, Heating & Cooling. After the guaranty was signed, appellee continued to sell materials on open account to Bass Plumbing, Heating & Cooling. In 1986, Bass Plumbing, Heating & Cooling changed its name to Bass Mechanical Contractors, Inc. No other changes were made in the corporate structure, and notices were sent to the corporation’s creditors informing them of the name change. Bass Mechanical Contractors continued to purchase materials on open account from appellee.
In 1987, appellee sued appellant as personal guarantor for the debts of Bass Mechanical Contractors in the amount of $19,398.61 and relied upon the guaranty executed by appellant in 1983. After trial, the circuit court found that there was proper consideration for appellant’s guaranty because appellee promised to extend credit to the company although they were under no obligation to do so; that appellant signed the guaranty in his individual capacity; and that the name change of the corporation was not a material change and did not extend appellant’s liability beyond the express limits or terms of the guaranty agreement. Judgment was entered for appellee in the amount of $18,010.98 plus interest and costs.
For his first point, appellant argues that the circuit court’s finding that there was adequate consideration for the guaranty agreement is clearly erroneous and clearly against a preponderance of the evidence. The findings of fact of a circuit court sitting as a jury will not be reversed on appeal unless clearly against a preponderance of the evidence, and in making that determination, we give due regard to the superior opportunity of the trial court to judge the credibility of the witnesses and the weight to be given their testimony. Shelter Insurance Co. v. Hudson, 19 Ark. App. 296, 720 S.W.2d 326 (1986).
A guaranty is a collateral undertaking by one person to answer for the payment of a debt of another; for a guarantor to become liable under a guaranty of payment, there need only be a failure of the primary obligor to make payment. First American National Bank v. Coffey-Clifton, Inc., 276 Ark. 250, 633 S.W.2d 704 (1982). See Cleveland Chemical Co. of Arkansas, Inc. v. Keller, 19 Ark. App. 7, 716 S.W.2d 204 (1986). A guaranty contract may be supported by sufficient consideration so long as there is a benefit to a principal debtor or guarantor, or a detriment to the guarantee. Shamburger v. Union Bank of Benton, 8 Ark. App. 259, 650 S.W.2d 596 (1983). Consideration is any benefit conferred or agreed to be conferred upon a promisor to which he is not lawfully entitled, or any prejudice suffered or agreed to be suffered by a promisor other than such as he is lawfully bound to suffer. McIlroy Bank & Trust Co. v. Comstock, 13 Ark. App. 13, 678 S.W.2d 782 (1984).
Appellant argues that there was no consideration to support the guaranty because appellee had extended credit to Bass Plumbing, Heating & Cooling for years before 1983, and no further benefits or incentives were given to the corporation to induce appellant to sign the guaranty agreement in 1983. We disagree. When appellant signed the guaranty agreement in 1983, appellee was not legally obligated to extend further credit to Bass Plumbing, Heating & Cooling. After appellant signed the agreement, appellee did in fact extend further credit to the corporation. The trial court’s finding that this was sufficient consideration for the guaranty is not clearly erroneous or clearly against a preponderance of the evidence, and we affirm on this point.
For his second point, appellant argues that the trial court erred in finding that the guaranty, to pay the debts for Bass Plumbing, Heating & Cooling, could be extended to require payment of the debts of Bass Mechanical Contractors. “The rule in Arkansas with respect to an interpretation of a guaranty agreement is that the guarantor is entitled to have his undertaking strictly construed and he cannot be held liable beyond the strict terms of his contract.” Shamburger, supra, at 262. Moore v. First National Bank, 3 Ark. App. 146, 623 S. W.2d 530 (1981). In Moore, we followed the well-settled principle that a material alteration in the obligation assumed, made without the assent of the guarantor, discharges him.
In the case at bar, appellant points out that he refused to execute a new guaranty at appellee’s request after the corporation’s name was changed. We are not persuaded by this argument. The guaranty agreement, which appellant admitted signing, stated that it was a continuing guaranty and would remain in force until revoked by the guarantor by notice in writing to appellee. Appellant admitted at trial that he had not revoked this guaranty in accordance with its terms. Further, appellant made the following admission of fact which was introduced into evidence:
4. Admit that Bass Mechanical, Inc. formerly known as Bass Plumbing, Heating & Cooling, Inc. owes to Plaintiff [appellee] the sum of $19,398.61. If you deny this request then please state in detail why you deny it and also state how much the said Bass Mechanical Contractors, Inc. formerly known as Bass Plumbing, Heating & Cooling, Inc. does owe to Plaintiff. DENIED. Corporate records indicate that the corporation is indebted at no more than $18,010.98 to plaintiff.
The evidence shows that the name change of Bass Plumbing, Heating & Cooling, Inc., to Bass Mechanical Contractors did not change the identity of the corporate entity to which appellee extended credit. As Mary Bass admitted at trial, the name change was effected “[s]imply because we were doing real good. We thought it would be a very professional sounding name. . . . That’s all there was to it.” Other than the change of name, no changes were made in the structure of the corporation.
Generally speaking, a change in the corporate name does not make a new corporation, and, whether effected by special act or under a general law, has no effect on the identity of the corporation, or on its property, rights, or liabilities .... The corporation continues, as before, responsible in its new name for all debts or other liabilities which it had previously contracted or incurred, and is also entitled to enforce contracts made or other liabilities incurred to it before the change; so, the enforceability of a contract of guaranty is not affected by a change in the name of the corporation in whose favor the guaranty runs, [footnotes omitted]
18 C.J.S. Corporations Section 171 f(l) (1939). “An authorized change in the name of a corporation has no more effect on its identity as a corporation than a change of name of a natural person has upon his identity; the corporation’s identity remains unchanged.” 18A Am. Jur. 2d Corporations Section 288 (1985).
We find no error in the trial court’s finding that appellee was not extending appellant’s liability beyond the express terms of the guaranty agreement.
Affirmed.
Cooper and Coulson, JJ., agree. | [
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Per Curiam.
Jody Hernandez filed her motion in this court to remand this record to the Workers’ Compensation Commission because the order appealed from is not a final one. We agree.
Petitioner perfected an appeal to the Workers’ Compensation Commission from an order of the administrative law judge denying her claim for benefits against Simmons Industries and Allen Canning Company. Allen Canning Company filed a motion before the Commission praying it be awarded costs against the appellant, as provided in Ark. Code Ann. § 11-9-714 (1987) (formerly Ark. Stat. Ann. § 81-1330 (Repl. 1976)), because the claim against it had been asserted by Hernandez without reasonable grounds. The Commission denied the motion on a finding that reasonable grounds did exist. Allen Canning Company appeals from that ruling. No determination of the merits of Jody Hernandez’ claim against either employer has been made by the Commission.
For an order to be appealable, it must be a final order. Ark. R. App. P. 2. To be final, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter in controversy. This rule applies equally to appeals from the Workers’ Compensation Commission. H. E. McConnell & Son v. Sadle, 248 Ark. 1182, 455 S.W.2d 880 (1970); Samuels Hide and Metal Co. v. Griffin, 23 Ark. App. 3, 739 S.W.2d 698 (1987). In Griffin, this court cited with approval the rule contained in 3 A. Larson, The Law of Workmen’s Compensation § 80.11 (1983), which declares that interlocutory decisions and decisions on incidental matters are not reviewable for lack of finality, and that ordinarily an order of the Commission is reviewable only at the point where it awards or denies compensation. The Commission’s order appealed from in this case concerned a purely incidental issue and did not dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter in controversy. Therefore, it falls within the general rules as set out above and is not a final appealable order.
This appeal is dismissed without prejudice and the case remanded to the Workers’ Compensation Commission for further proceedings. | [
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Melvin Mayfield, Judge.
The appellant in this case was convicted in the Elkins Municipal Court for driving while intoxicated. On appeal to circuit court, he was again convicted. In his appeal to this court, the appellant argues that the City of Elkins could not be the plaintiff in a criminal prosecution for violation of a state law; that it could not be the plaintiff in a case where the offense occurred outside the city limits; and that the circuit court had no jurisdiction to change the plaintiff to the State of Arkansas in the appeal from municipal court. We do not agree, and we affirm the conviction.
By stipulation, the record shows that on January 25,1987, at approximately 2:18 a.m., appellant was westbound on Highway 45 near Goshen, Arkansas, and Washington County Deputy Otis Harris was eastbound on the same road. As Deputy Harris approached appellant’s vehicle, he observed appellant’s car cross the center line of the road, move back to the right side, then go off onto the shoulder of the road. Deputy Harris turned around and followed appellant’s car for a short time. He observed it cross the center line again, and saw it sway in the east-bound lane as it traveled east. Harris stopped appellant and noticed a strong odor of alcohol about him. Appellant admitted he had consumed a “couple of beers.” Harris administered field sobriety tests which appellant failed. He was then taken to the Washington County Sheriff’s Office and given a breathalyzer test.
The stipulation states that appellant’s rights were read to him and that the breathalyzer test was administered on a properly certified and standardized machine by an officer certified to perform the test. Appellant registered 0.15%. He was found guilty of D WI and sentenced to pay a fine of $ 150.00, court costs of $306.75, his driver’s license was suspended for 90 days and he was ordered to attend safe driving school. We take judicial notice that the City of Elkins is in Washington County, and it is stipulated that appellant was arrested in that county but outside the city limits of Elkins.
In his appeal to this court appellant first argues that the City of Elkins cannot be plaintiff in a criminal prosecution for violation of state law because Rule 1.5 of the Arkansas Rules of Criminal Procedure provides:
All prosecutions for violations of the criminal laws of this state shall be in the name of the State of Arkansas, provided that this rule shall in no way afFect the distribution, as provided by law, of moneys collected by municipal courts.
The Arkansas Supreme Court recently considered this issue in Urich v. State, 293 Ark. 246, 737 S.W.2d 155 (1987).
That municipal courts may exercise jurisdiction over state misdemeanor violations is settled law. Article 7, § 1 of the Arkansas Constitution provides:
The judicial power of the State shall be vested in one Supreme Court, in circuit courts, in county and probate courts, and in justices of the peace. The General Assembly may also vest such jurisdiction as may be deemed necessary in municipal corporation courts
Ark. Stat. Ann. § 22-702 establishes municipal courts and § 22-709 grants jurisdiction to municipal courts over misdemeanors.
The same issue was raised in Ex Parte Hornsby, 228 Ark. 975, 311 S.W.2d 529 (1958), where the petitioner was convicted in municipal court of violating a state DWI statute. We found the argument without merit, citing Ark. Stat. Ann. § 22-709.
293 Ark. at 247. It would have been correct to have styled this case in municipal court as “State of Arkansas v. Jimmy Dale Graham” and this might have prevented this appeal; however, the style naming the plaintiff as the “City of Elkins” did not affect the court’s jurisdiction to try the crime charged.
Next, appellant argues that the City of Elkins cannot be the plaintiff in a case where the offense happened outside its city limits. It was stipulated that appellant was arrested in rural Washington County. The first sentence of Ark. Stat. Ann. § 22-709 (Repl. 1962) [Ark. Code Ann. § 16-17-206(d) (1987)] provides:
The municipal courts shall have original jurisdiction coextensive with the county wherein the said court is situated ....
See also, Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1984).
Finally, appellant argues that the circuit court had no jurisdiction to change plaintiffs in an appeal from a municipal court. Actually, the real party in interest was not changed because the city, county and state were each interested in the prosecution of the crime. Furthermore, the Constitution of the State of Arkansas, Article 7, § 14 provides that:
The circuit courts shall exercise a superintending control and appellate jurisdiction over county, probate, court of common pleas and corporation courts and justices of the peace, and shall have power to issue, hear and determine all the necessary writs to carry into effect their general and specific powers, any of which writs may be issued upon order of the judge of the appropriate court in vacation.
Thus, the circuit court had jurisdiction to try this case and the style of its judgment “State of Arkansas, County of Washington” was proper.
Affirmed.
Cooper and Coulson, JJ., agree. | [
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James R. Cooper, Judge.
The appellant was convicted in the Municipal Court of Jacksonville of driving while intoxicated, first offense. The appellant appealed to circuit court, where, after a de novo bench trial, he was again found guilty and he was sentenced to seven days in the county jail, with six days suspended; fined $150.00; and his driver’s license was suspended for ninety days. The appellant argues three points on appeal: that the court erred in finding that he was in control of a vehicle; that the trial court erred in finding that there was reasonable suspicion to justify the police officer’s detention of him; and that the trial court erred in finding that he was intoxicated. We affirm.
The record reveals that the appellant was arrested on March 15, 1987. Dwight Rushing, a deputy with the Pulaski County Sheriffs office, testified that, at 3:00 a.m., he was routinely checking businesses located in his patrol area when he saw a red pickup truck sitting in the parking lot of the Dixie Food and Fun Bar. He observed that the motor was running and the lights were on. After checking the building to make sure there had not been a break-in, he approached the car and saw the appellant either “asleep or passed out” in the front seat of the truck and woke him up. Deputy Rushing stated that it was difficult to wake the appellant and he “had to beat on the door and window for a while.”
When the appellant got out of his truck, Deputy Rushing noticed that he smelled of alcohol and stumbled. Deputy Rushing gave the appellant a field sobriety test which the appellant failed.
Testifying in his own behalf, the appellant explained that he was a truck driver and had just gotten in from California that day and that he went by the Dixie Bar to see a friend. The appellant stated that he got to the bar at 9:00 p.m. and that he had three to four drinks before leaving at 11:00 p.m. The appellant explained that he had tried to get his girlfriend to come and get him, but that she was unable to and that because he was too tired to drive he went out to his truck to sleep for awhile. The appellant testified that the motor was on so that he could run the heater. He denied that the headlights were on when the officers arrived and testified that they were turned on by the police officers. The appellant refused to take a breath test.
The appellant’s first and third arguments are challenges to the sufficiency of the evidence. On appeal we are required to view the evidence in the light most favorable to the State and affirm if there is substantial evidence to support the verdict. Holt v. State, 15 Ark. App. 269, 692 S.W.2d 265 (1985). Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other; it must force or induce the mind to pass beyond a suspicion or conjecture. Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984). The appellant first argues that he was not in actual control of the truck, and cites Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984), in support of his argument. In Dowell it was held that an occupant of a car was not shown to be in actual control of the car in which he was found asleep. An important factor in Dowell was that the keys to the vehicle were found on the seat at the time of arrest. See Roberts v. State, 287 Ark. 451, 701 S.W.2d 112 (1985). We disagree that Dowell is applicable to the appellant’s case and are persuaded by the State’s contention that the facts in this case more closely resemble those in Roberts, supra, and Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985). In Wiyott, the occupant of the car was found asleep, and when he was awakened by police officers, he reached for his keys which were in the ignition and then attempted to start the car. In the present case, not only were the keys in the ignition, but the truck’s motor was running. As the Supreme Court noted in Wiyott, the person convicted could have awakened at any moment and started the car, and that he was in as much control of the vehicle as an intoxicated person can be. 284 Ark. at 402.
The appellant further contends that there are three methods by which it can be proven that a person is in physical control of a vehicle and that none of these methods were used in his trial. In Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985), the Supreme Court listed the methods: (1) observation by the officer; (2) evidence of intent to drive after the moment of arrest; or (3) a confession by the defendant that he was driving. However, Azbill is distinguishable because in that case the driver was found outside the car, not in it. The Court also stated in Azbill that control of the vehicle can by shown by circumstantial evidence. 285 Ark. at 101. Here the deputy directly observed the appellant in his truck, with the keys in the ignition and the motor running. We hold that the evidence was sufficient to establish that the appellant was in control of his vehicle.
For his third point for reversal, the appellant argues that the trial court erred in finding that he was intoxicated. The appellant refused to take a breath test so there was no evidence at trial as to the level of alcohol in the appellant’s system. Arkansas Statutes Annotated § 75-2502(a) (Supp. 1985) states:
“Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, or a combination thereof, to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians.
Now codified at Ark. Code Ann. § 5-65-103 (1987).
We hold that there was sufficient evidence to find that the appellant was intoxicated. Deputy Rushing testified that when the appellant got out of his truck he detected the odor of alcohol and the appellant stumbled getting out of the truck. In the field sobriety test, the appellant was asked to touch his nose and he missed and touched his moustache area. The appellant could not stand on one leg without using his arms to balance himself and he failed the eye gaze nystagmus test. Furthermore, the appellant admitted that he had been drinking. We do not find it significant that Deputy Rushing, on cross-examination, admitted that the appellant’s actions could have been the result of having just been awakened from a deep sleep, because the officer also stated that he did not believe that was so in the appellant’s case.
The appellant’s second argument, which we are addressing last, concerns whether Deputy Rushing had a reasonable suspicion which justified his detaining the appellant. Arkansas Rules of Criminal Procedure Rule 3.1 allows an officer to “stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation or danger to property.” It is the appellant’s contention that Deputy Rushing did not have reasonable suspicion that the appellant was involved in criminal activity at the time he knocked on the window of the appellant’s car. He asserts that it was not until he stepped out of his car that the suspicion arose that he was intoxicated.
We do not agree that this case involves the authority of a police officer to make an investigatory stop based on reasonable suspicion in accordance with A.R.Cr.P. Rule 3.1, but involves the question of the extent of permissible interruption a citizen must bear to accommodate a law officer who is investigating a crime under A.R.Cr.P. Rule 2.2. In Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982), the Arkansas Supreme Court stated:
The practical necessities of law enforcement and the obvious fact that any person in society may approach any other person for purposes of requesting information make it clear the police have authority to approach civilians.
There is nothing in the Constitution which prevents the police from addressing questions to any individual. However, the approach of a citizen pursuant to policeman’s investigative law enforcement function must be reasonable under the existent circumstances and requires a weighing of the government’s interest for the intrusion against the individual’s right to privacy and personal freedom. To be considered are the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter.
274 Ark. at 543 (citations omitted); see also McDaniel v. State, 20 Ark. App. 201, 726 S.W.2d 688 (1987). Arkansas Rules of Criminal Procedure Rule 2.2 outlines the authority of a police officer to request cooperation. Rule 2.2 provides in part:
(a) A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.
When we weigh the facts and circumstances in this case we find that the police officer’s actions were reasonable. Deputy Rushing stated that he was in the area at 3:00 in the morning to check the businesses located there for possible break-ins. When he first saw the appellant’s truck, he noticed that the motor was running and the headlights were on. He testified that he first thought that the bar had been broken into and went to check the building. Finding no evidence of a break-in, he went over to the appellant’s truck, and that is when he first noticed the appellant laying in the front seat of the truck. Deputy Rushing said that he thought the appellant was “asleep or passed out.” Although he did not see any blood or physical injuries, Deputy Rushing did not know if the appellant was ill, drunk, or merely asleep. Given these circumstances we believe that Deputy Rushing, as part of his community caretaking function, was justified in knocking on the appellant’s window to question him and make an inquiry. See Lipovich v. State, 265 Ark. 55, 576 S.W.2d 720 (1979).
Affirmed.
Coulson and Jennings, JJ., agree. | [
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James R. Cooper, Judge.
On June 23,1986, the appellant entered a guilty plea to a charge of possession of a controlled substance with intent to deliver and received five years probation. On August 20,1987, the Pike County Circuit Court granted the State’s petition to revoke the appellant’s probation and he was sentenced to ten years in the Arkansas Department of Correction. On appeal, the appellant argues four points: that the trial court erred in denying the motion to suppress evidence allegedly obtained as a result of an illegal arrest; that condition seven in the conditions of probation which requires the appellant to subject himself to a search at any time is unconstitutional; that evidence used to revoke his probation was seized during an illegal search; and that the court erred in allowing a crime laboratory report to be introduced into evidence. We disagree with the appellant’s arguments and affirm.
The record reveals that on February 11, 1987, Sheriff George Riley went to the appellant’s residence because he “understood” that the appellant had controlled substances in his home and he wanted to search for them. Sheriff Riley was accompanied by Officer Dickie Branch and Jim O’Neil, a member of the county quorum court. When they arrived at the appellant’s house, Sheriff Riley began talking with the appellant who was in his yard splitting wood. According to Sheriff Riley, when he told the appellant that they were there to search for drugs, the appellant ran toward the door of his trailer. Sheriff Riley testified that they followed the appellant and that he could see green vegetable matter on the living room table when the appellant opened the front door. The officers entered the trailer, scuffled with the appellant, and, after subduing and handcuffing him, searched the trailer. Besides the green matter, which was later tested and found to be marijuana, three guns were found.
The appellant testified that when he was told that his home was to be searched, he asked the Sheriff to wait outside while he got a shirt. The three men followed him onto the porch, according to the appellant, and after he had entered the trailer and latched the door, the officers forced their way in and searched the home. Officer Riley stated that he believed he had the authority to search the appellant’s home without a search warrant pursuant to condition seven of the appellant’s written conditions of probation which provides:
7. The defendant shall, during the period of probation submit his person, place of residence or vehicle to search and seizure at any time of the day or night, with or without a search warrant, whenever requested to do so by the probation officer or any law enforcement officer.
The appellant first argues that he was arrested illegally because the officers did not have reasonable cause to arrest him. Arkansas Statutes Annotated § 41-1208(2) (Repl. 1977) [Ark. Code Ann. § 5-4-309 (1987)] provides:
(2) At any time before the expiration of a period of suspension or probation, any law enforcement officer may arrest a defendant without a warrant if the officer has reasonable cause to believe that [the] defendant has failed to comply with a condition of his suspension or probation.
(Emphasis added). We disagree with the appellant’s contention that the officers did not have “reasonable cause” to believe that he had violated a condition of his suspension of probation.
The appellant testified that he did not consent to the search and that he tried to prevent the officers from searching without a warrant. Because one of the conditions of the probation was that the appellant subject himself and his home to being searched, the appellant’s refusal gave the officers “reasonable cause to believe that the appellant had failed to comply with a condition of his probation.” We therefore find that the actual arrest, occurring a few minutes later, was not illegal.
The appellant argues next that condition seven is unconstitutional. However, the appellant does not cite any convincing authority for this proposition; he vaguely alludes to various constitutional and statutory provisions which are only tangentially related to the issues. Assignments of error, unsupported by convincing argument or authority, will not be considered on appeal unless it is apparent without further research that they are well taken. Reynolds v. State, 18 Ark. App. 193, 712 S.W.2d 329 (1986).
The appellant argues in his third point that the trial court should have suppressed the evidence seized in his home because the search was unlawful. It is the appellant’s contention that the officers needed a search warrant to conduct the search of his home.
The appellant and the State both cite the case of Griffin v. Wisconsin, 483 U.S _, 107 S.Ct. 3164 (1987). In that case the United States Supreme Court upheld the warrantless search by probation officers of a probationer’s home. In its opinion, the Court pointed out the difference between a search conducted by a probation officer, who is concerned with both public interests and the welfare of the probationer, and a search conducted by a police officer. However, Griffin was not a revocation case; the evidence gathered by the probation officer was used to convict the probationer of a state weapons offense. Therefore, we do not find Griffin to be controlling.
We have said many times that the exclusionary rule does not apply to revocation proceedings, at least where there has been a good faith effort to comply with the law. Carson v. State, 21 Ark. App. 249, 731 S.W.2d 237 (1987); Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (Ark. App. 1980). However, an analysis of “good faith” is not required here because the officers had the authority to search the appellant’s home pursuant to the conditions of probation. We find that the trial court was correct in its refusal to grant the appellant’s motion to suppress.
The appellant’s last argument concerns a report prepared by the Arkansas State Crime Laboratory which indicated that the green vegetable matter seized from the appellant’s home was marijuana. The appellant contends that because the report was hearsay and violated the best evidence rule, it was error to allow the State to introduce it into evidence. The appellant’s argument has no merit because the Rules of Evidence are not applicable in revocation proceedings. Felix v. State, 20 Ark. App. 44, 723 S.W.2d 839 (1987).
We find that the trial court did not err in refusing to suppress the evidence found in the appellant’s home or in allowing the crime laboratory report to be introduced into evidence and, accordingly, we affirm the revocation of the appellant’s probation.
Affirmed.
Jennings and Mayfield, JJ., agree. | [
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John E. Jennings, Judge.
Appellant, Joseph McGhee, pled guilty, in August of 1986, to theft by receiving and was placed on five years probation. Two of the conditions of his probation were that he was not to commit any further crime and not to possess firearms.
On September 30, 1987, the Ouachita County Sheriffs Department obtained a search warrant from a municipal judge based on information it had received that appellant was in possession of stolen VCR’s, T.V.’s, video cameras and video tapes. The subsequent search of appellant’s home turned up no stolen property, but the officers did find a small quantity of cocaine and two firearms, one of which was a sawed-off shotgun. Appellant was arrested and charged with possession of cocaine and being a felon in possession of a firearm. The State also filed a petition to revoke his probation.
A pre-trial suppression hearing was held. The circuit judge ruled that the warrant was invalid and that the evidence obtained as a result of the search was inadmissible in the primary criminal proceedings against the appellant. The court also ruled, however, that the evidence would be admissible in the revocation proceeding. After a hearing on the petition to revoke, appellant’s probation was revoked and he was sentenced to six years imprisonment. His sole argument on appeal is that the court erred in refusing to exclude the evidence obtained in the search in the revocation proceeding. We disagree and affirm.
The trial court was obliged to exclude the evidence obtained as a result of the unlawful search in the substantive criminal proceedings against appellant under Mapp v. Ohio, 367 U.S. 643 (1971). While it is true that probationers have certain rights under the due process clause of the fourteenth amendment, it is equally clear that those rights are not nearly so extensive as those guaranteed to a defendant in a substantive criminal proceeding. Morrissey v. Brewer, 408 U.S. 471 (1972).
The courts of this state have uniformly refused to extend the exclusionary rule to probation revocation proceedings. Dabney v. State, 278 Ark. 375, 646 S.W.2d 4 (1983); Schneider v. State, 269 Ark. 245, 599 S.W.2d 730 (1980); Carson v. State, 21 Ark. App. 249, 731 S.W.2d 237 (1987); Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (Ark. App. 1980). As the supreme court said in Schneider, this is the view of the great majority of jurisdictions.
The United States Court of Appeals for the Third Circuit considered the issue in United States v. Bazzano, 712 F.2d 826 (3rd Cir. 1983). The court noted that of the seven federal courts of appeal that had considered the question whether the exclusionary rule is applicable to probation revocation proceedings, all but the Fourth Circuit had concluded that it is not. The Court explained its reason for adopting the majority rule:
In our view, excluding from such proceedings reliable evidence bearing on a probationer’s rehabilitation would contribute little to deterring constitutional violations while impeding society’s interest in protecting itself against convicted criminals who have abused the liberty afforded them.
The Arkansas Supreme Court has reasoned similarly. “It has been observed that in such a situation the exclusion of illegally obtained evidence from a prosecution of the new offense should ordinarily be a sufficient deterrent to unlawful police activity.” Dabney v. State, 278 Ark. at 377, 646 S.W.2d at 5.
It is true that the Arkansas Supreme Court, as well as this court, has suggested, by way of dicta, that there may be exceptions to the general rule that the exclusionary rule is inapplicable in probation revocation proceedings. In Harris, we said that the exclusionary rule would be inapplicable in revocation proceedings “at least where there has been a good-faith effort to comply with the law.” 270 Ark. at 638, 606 S.W.2d at 95. In Dabney, supra, the court suggested that the exclusionary rule might be applicable if it appeared that the officers’ primary purpose was to seek revocation of the defendant’s probation. Other courts have suggested the possibility of a similar exception. See e.g., Bazzano, 212 F.2d at 832. Other suggested possible exceptions to the general principle that the exclusionary rule is inapplicable in probation revocation proceedings include cases involving harassment by the police, United States v. Farmer, 512 F.2d 160 (6th Cir. 1975), and official misconduct which shocks the conscience of the court. People v. Williams, 186 Colo.72, 525 P.2d 463 (1974).
During the course of the search the cocaine was found by an officer in a Crown Royal bag. Appellant argues that because the bag was not large enough to hold any of the items sought in the search, the scope of the invalid warrant was exceeded, and that this establishes bad faith so as to warrant the application of the exclusionary rule. It is not at all clear that the scope of the warrant was exceeded, but even if it was we do not think this asserted misconduct, in the absence of some indication that it was the purpose of the police to obtain the revocation of appellant’s probation, would require the application of the exclusionary rule.
Finally, appellant contends that the State has the burden of proving “good-faith” or else the exclusionary rule will apply. That is true in a prosecution for a new criminal offense in which the exclusionary rule is ordinarily applicable and the good-faith exception established in United States v. Leon, 468 U.S. 897 (1984), is claimed to apply. In a probation revocation proceeding, however, the situation is just the opposite, i.e., the exclusionary rule will not apply unless the probationer demonstrates some exception. In Harris v. State, supra, the probationer argued that the State had the burden of introducing into evidence the written affidavit and search warrant. We rejected this contention.
We hold that the trial court did not err in declining to apply the exclusionary rule under the facts of this probation revocation proceeding.
Affirmed.
Cooper and Mayfield, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from the Union County Chancery Court. Both parties appeal from the decree and order filed of record January 19, 1988. We affirm in all respects.
Herman and Phoebe Franklin were married December 12, 1957. The parties separated on or about October 9,1984, and Mr. Franklin petitioned the court for absolute divorce. The case was heard on August 24, 1987, and a decree awarding divorce was filed January 19, 1988. The decree also disposed of the parties’ property and awarded bi-monthly alimony to Mrs. Franklin.
For reversal, appellant, Herman Franklin, raises the following five points: (1) The chancellor erred and abused his discretion in awarding alimony to Mrs. Franklin; (2) alternatively, the chancellor erred in the amount of alimony awarded; (3) alternatively, the chancellor erred in awarding alimony retroactively; (4) the chancellor erred in failing to adjudicate marital property as of October 9, 1984; and (5) the chancellor erred in awarding Mrs. Franklin an unequal division of marital property. Appellee, Phoebe Franklin, filed a cross-appeal asserting the following two points: (1) The chancellor erred in refusing to allow Mrs. Franklin to name a contingent alternative payee on the retirement benefits; and (2) the chancellor abused his discretion in failing to award Mrs. Franklin an attorney’s fee.
Appellant’s first three points regarding the alimony will be treated together. The award of alimony in a divorce action is not mandatory but is a question which addresses itself to the sound discretion of the chancellor and the appellate court will not reverse absent a clear abuse of that discretion. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). There are many factors which may be considered in determining whether to allow alimony and fixing the amount to be allowed.
Among [the factors] are the financial circumstances of both parties, the financial needs and obligations of both the couple’s past standard of living, the value of jointly owned property, the amount and nature of the income, both current and anticipated, of both husband and wife, the extent and nature of the resources and assets of each that is “spendable,” the amounts which, after entry of the decree, will be available to each of the parties for the payment of living expenses, the earning ability and capacity of both husband and wife, property awarded or given to one of the parties, either by the court or the other party, the disposition made of the homestead or jointly owned property, the condition of health and medical needs of both husband and wife, the relative fault of the parties and their conduct, both before and after separation, in relation to the marital status, to each other and to the property of one or the other or both, the duration of the marriage and even the amount of child support.
Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980).
The record reflects that the parties were married twenty-seven years prior to their separation. During the period of separation Mrs. Franklin was diagnosed as having multiple sclerosis. Prior to the final hearing Mrs. Franklin resigned from her job due to her inability to properly perform her duties resulting from her health problems. The chancellor found that because of her health and her limited vocational skills, Mrs. Franklin’s opportunity to realize gainful employment and to acquire capital assets was poor. We cannot say that such a finding is clearly erroneous. The record also reveals that Mr. Franklin has steady employment from which he nets approximately $33,000 per year and receives various other benefits in connection with his employment. We cannot conclude under these circumstances that the chancellor abused his discretion in awarding alimony to Mrs. Franklin.
The same factors are considered in determining the amount at which to fix the payments. See, id. Using the Arkansas Domestic Relations Manual support chart as a guide, the chancellor awarded Mrs. Franklin bi-monthly alimony of $244. Appellant contends that the chancellor erred in using the chart because it is designed for use only in situations where the court awards child support to a custodial parent of dependent children, and that the chancellor did not consider his “spendable” income as enunciated in Boyles. It is clear that the chancellor considered many of the factors enunciated in establishing the amount of alimony. Furthermore, while Mrs. Franklin presented testimony regarding her expenses such as rent and insurance, it does not appear that Mr. Franklin put on any proof regarding his “spendable” income. Although “spendable” income is one of the factors the chancellor may consider, he is unable to consider something not before him. Finally, the chancellor stated that he was using the support chart as a guide. The suggestions for use of the chart, appended thereto, provide that a dependent custodian should be counted as two dependents as a guide in determining support. Although Mrs. Franklin is not a custodian, we find no error in using the chart as a guide and cannot say that the chancellor abused his discretion in fixing the amount of alimony at $244 bi-monthly.
Mr. Franklin also argues that the chancellor abused his discretion in awarding alimony retroactively, as of the day following his first letter opinion in the matter. Although the alimony award could not be enforced until the entry of the decree, see ARCP Rule 58, the date on which it begins to accrue is a decision within the broad discretion of the chancellor. Appellant has cited no authority which convinces us that the chancellor abused his discretion in this instance.
Next appellant argues that the chancellor erred in failing to adjudicate marital property as of October 9,1984, the date of separation. In support of his argument, appellant cites Ford v. Ford, 272 Ark. 506, 616 S.W.2d 3 (1981). However, in Ford, the supreme court merely upheld the chancellor’s unequal division of property, noting that his findings properly addressed the criteria to be considered under the statute in effect at the time. Contribution of each party in acquisition, preservation or appreciation of marital property is a factor to be considered. Although the chancellor in Ford seemed to rely heavily on the wife’s lack of contribution during the five and one-half years of separation, the supreme court’s decision did not imply that the property was not marital property subject to division, nor did it imply that the contribution factor was to be controlling. It is clear from decisions of both our court and the supreme court that assets acquired after separation and prior to a grant of divorce are marital property, and are to be divided giving due consideration to the factors enunciated in Arkansas Code Annotated § 9-12-315(a)(1)(A) (Supp. 1987) (formerly Ark. Stat. Ann. § 34-1214(A)(1) (Supp. 1985)). See, e.g., Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987); Lee v. Lee, 12 Ark. App. 226, 674 S.W.2d 505 (1984). We find no error in awarding Mrs. Franklin an interest in assets acquired by Mr. Franklin after separation.
Both parties raise issues on appeal regarding the division of property and the arguments will be treated together. The applicable statute provides as follows:
(a) At the time a divorce decree is entered: (1)(A) All marital property shall be distributed one-half (¥¿) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration:
(i) The length of the marriage;
(ii) Age, health, and station in life of the parties;
(iii) Occupation of the parties;
(iv) Amount and sources of income;
(v) Vocational skills;
(vi) Employability;
(vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;
(viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and
(ix) The federal income tax consequences of the court’s division of property.
(B) When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the order entered in the matter.
Ark. Code Ann. § 9-12-315(a)(l) (Supp. 1987) (formerly Ark. Stat. Ann. § 34-1214(A)(l)).
Mr. Franklin asserts error in the chancellor’s unequal division of property in the case at bar. Prior to disposition of the parties’ property, the chancellor stated in the decree that he based his decision upon the parties’ twenty-seven year marriage, Mrs. Franklin’s deteriorating health, her poor opportunity to realize gainful employment and to acquire capital assets, and her limited vocational skills. His findings are amply supported by the record. Mr. Franklin attaches special significance to the fact that the chancellor stated that he found an unequal division to be “appropriate” rather than “equitable.” However, we find no such significance in his choice of words and cannot say that the chancellor’s findings that the circumstances warranted an unequal division of property, were clearly erroneous.
Mrs. Franklin, in her first point on cross-appeal, argues that the chancellor erred in refusing to allow her to name a contingent alternative payee on her share of the retirement benefits. The chancellor awarded Mrs. Franklin a share of various retirement benefits of Mr. Franklin’s but stated that if she predeceased Mr. Franklin her share was to revert back to Mr. Franklin. Mrs. Franklin argues that, in effect, she was given only a life estate in the benefits. We agree that is the effect of the chancellor’s ruling. However, we see no error in awarding such a life estate as part of an unequal distribution. As discussed above, prior to disposition of any property the chancellor specifically stated that he was awarding an unequal property division and stated his reasons for so doing. Had the chancellor stated that he was awarding an equal division of property, we would have a different issue before us. We cannot say that the chancellor erred in the manner in which he chose to distribute the property.
Finally, Mrs. Franklin argues that the chancellor erred in failing to award attorney’s fees. We disagree. The trial court has considerable discretion in the allowance of attorney’s fees in a divorce case, and in the absence of clear abuse, the chancellor’s fixing of an attorney’s fee will not be disturbed on appeal. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). Unless the chancellor finds it to be equitable, there is no compelling reason for the husband to automatically pay the wife’s attorney’s fees. Id. Upon our review of the record, we cannot say that the chancellor clearly abused his discretion in failing to award attorney’s fees to Mrs. Franklin.
Affirmed.
Cracraft and Mayfield, JJ., agree.
In Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982), the Arkansas Supreme Court deleted the relative fault of the parties as a factor considered by the court with regard to alimony. | [
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Melvin Mayfield, Judge.
This appeal results from the trial court’s entry of a default judgment against appellant, Liberty Life Insurance Company. Appellant raises three points for reversal: (1) the default judgment should be set aside because a defective summons was served upon appellant and appellant has a meritorious defense to the complaint; (2) the answer of codefendant Insurex Agency, Inc. inures to the benefit of appel lant; and (3) just cause existed for appellant’s failure to file a timely answer. Because we find that codefendant Insurex’s answer did plead a defense common to appellant, we reverse and remand.
The appellee filed suit against the appellant alleging that she was the beneficiary in a certificate issued by appellant, pursuant to its group insurance policy, insuring the life of appellee’s deceased husband. Appellee alleged that she should have judgment against appellant for the amount provided by the certificate and, in the alternative, judgment against the codefendant In-surex. The issue presented in this case is whether the answer filed by the codefendant asserted a defense common to appellant and went to the merits of the whole cause of action. In Firestone Tire & Rubber Co. v. Little, 269 Ark. 636, 599 S.W.2d 756 (Ark. App. 1980), we said:
In 78 A.L.R. 939 is found a statement as follows:
The courts are agreed with practical unanimity that in actions against several defendants jointly, where the defense interposed by the answering defendant is not personal to himself (as is the defense of infancy, coverture, or bankruptcy on the part of the pleader), but common to all, as where it goes to the whole right of the plaintiff to recover at all, as distinguished from his right to recover as against any particular defendant, or questions the merits or validity of the plaintiffs entire cause of action in general, or his right to sue, such defense, if successful, inures to the benefit of the defaulting defendants both in actions at law and suits in equity, with the result that final judgment must be entered not merely in favor of the answering defendant, but also in favor of the defaulting defendants.
In71 C.J.S., Pleadings, Section 117, at p. 268isfound the statement as follows:
While as a general rule one defendant cannot in his answer assert the rights of a codefendant who does not answer, a defense which goes to the merits of the whole case as tending to show no cause of action in plaintiff may, when pleaded by one defendant, inure to the benefit of his codefendants.
It is not every answer filed by a defendant that inures to the benefit of a nonanswering codefendant. It is only when the answering defendant answers an allegation directed at and common to his nonanswering codefendant. The purpose and effect of an answer by general denial is to put the plaintiff to proof on each of the allegations made in the complaint.
269 Ark. at 642-3.
In Arkansas Electric Co. v. Cone-Huddleston, 249 Ark. 230, 458 S.W.2d 728 (1970), the Arkansas Supreme Court stated, “Commercial [non-answering defendant] timely requested its insured, Cone-Huddleston, to file an answer in the former’s behalf and to defend, as it was contractually obligated to do. Of course the defenses would be identical and Commercial Union’s liability would be predicated on Cone-Huddleston being liable.” 249 Ark. at 231. In Southland Mobile Home Corp. v. Winders, 262 Ark. 693, 561 S.W.2d 280 (1978), however, the Arkansas Supreme Court distinguished its holding in Arkansas Electric.
The appellees are mistaken in arguing, on the basis of the result reached in Rogers v. Watkins, 258 Ark. 394, 525 S.W.2d 665 (1975), that there must be a derivative liability in order for the answer of one defendant to inure to the benefit of another. That was the situation in Rogers, but the rule is not confined to that state of facts. The true test is whether the answer of the non-defaulting defendant states a defense that is common to both defendants, because then a “successful plea .... operates as a discharge to all the defendants but it is otherwise where the plea goes to the personal discharge of the party interposing it.” [Citations omitted] Here the effect of the manufacturer’s answer was to deny the plaintiffs’ allegations of negligence and breach of warranty. That denial went to the existence of the plaintiffs’ cause of action, asserted a defense common to both defendants, and therefore inured to the benefit of the appellant.
262 Ark. at 694.
In Allied Chemical Corp. v. Van Buren School District No. 42, 264 Ark. 810, 575 S.W.2d 445 (1979), the appellants argued that codefendant Celotex’s timely answer brought their case within the rule that any defense filed by one defendant, common to a codefendant, inured to their benefit. The Arkansas Supreme Court responded:
Here Celotex filed a timely answer, preserving its objection to venue, and asserted that the appellees’ complaint did not state sufficient facts to constitute a cause of action, denied the allegations of appellee’s complaint, interposed the statute of limitations as a complete defense .... These denials by Celotex’s answers went to the existence of appellee’s cause of action and asserted defenses common to both appellants which inured to their benefit.
264 Ark. at 815.
In the present case, the appellee alleged separate causes of action against appellant and defendant Insurex. The allegation as to defendant Insurex is that it misrepresented the fact that appellee’s husband would be covered under his employer’s group policy with appellant. The appellee did not allege joint and several liability as to Insurex and appellant but asked for relief against Insurex, if appellee was not successful on her claim against appellant.
Appellee’s specific claim against appellant is based upon waiver and estoppel. In paragraph 11 of her amended complaint, appellee specifically alleges:
That [appellant], Liberty Life Insurance Company, by their actions in accepting premiums for the life insurance coverage on Robert Lewis Forsythe [appellee’s husband], as well as the medical care coverage, and also in honoring all claims for medical care coverage under the policy, should be found to have waived any right to deny coverage under the policy, and should be stopped [sic] from denying coverage under same.
In response to this allegation, defendant Insurex answered,
“[t]his defendant can neither admit nor deny the allegations contained in Paragraph 11 of the Amended Complaint, as said allegations are directed toward Liberty Life Insurance Company, but this defendant would demand strict proof of said allegations if its rights are to be affected.” Thus, defendant Insurex did not answer for appellant. Nevertheless in paragraphs 16 & 17 of its answer, defendant Insurex further pleads:
For further defense, the defendant, Insurex Agency, Inc., alleges that the [appellee] is barred from recovery in this case on the ground that Richard Lewis Forsythe specifically misrepresented his employment status in February of 1985 by stating that he worked a minimum of thirty hours per week and that he was an active, full-time employee, all of which induced Liberty Life Insurance Company to show him as an insured. . . . This defendant avers that the plaintiff is barred from recovery on the basis of the misrepresentation of Richard Lewis Forsythe, which representations void any coverages to which he or his beneficiary might otherwise be entitled.
17. The plaintiff is estopped to claim the benefits of life insurance coverage on the life of Richard Lewis Forsythe because of the above-described misrepresentations as to the work status of Richard Lewis Forsythe.
Thus, we think it clear that the defenses of misrepresentation of employment status and estoppel pled by Insurex were defenses common to Insurex and appellant, Liberty Life. Therefore, the timely answer of Insurex inures to the benefit of Liberty Life, and it was error to enter default judgment against appellant.
Reversed and remanded.
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Conway County Circuit Court. Appellant, Odis Ross, administrator of the estate of Robert Ross, Jr., appeals from a judgment finding that Robert Ross, Jr. is the father of appellee Dorothy Moore’s children, Tracy Moore and Dexter Moore. We reverse and remand.
This suit was initiated in Conway County Circuit Court by the State in the name of appellee. Appellee did not wish to file the action but was required to do so in order to continue receiving welfare benefits. The action was heard by the county court and Robert Ross was adjudged to be the father of Dexter and Tracy Moore. Mr. Ross appealed the judgment to the circuit court, but died prior to the case being called. The cause of action was revived in the name of Odis Ross, Administrator of the Estate of Robert Ross, Jr., Deceased, by order filed of record June 16, 1987. The case was heard de novo July 8,1987, by the circuit judge sitting without a jury. A judgment entered July 21, 1987 adjudged Robert Ross, Jr. to be the natural father, of Dexter Moore and Tracy Moore. From this judgment, comes this appeal.
For reversal, appellant alleges in his only point that the evidence was insufficient on behalf of the appellee to establish paternity.
We have held that in a bastardy proceeding brought against a living putative father, the mother’s burden of proof is nothing more than a mere preponderance of the evidence, since the proceeding is civil in nature rather than criminal even where the action is bought in the name of the State. McFadden v. Griffith, 278 Ark. 460, 647 S.W.2d 432 (1983). In contrast, one who claims to be the illegitimate child of a deceased person seeking to share in the decedent’s estate must prove paternity by clear and convincing evidence. Lewis v. Petty, 272 Ark. 250, 613 S.W.2d 585 (1981). The differing standards present a novel issue with regard to the facts in the case at bar. As noted above, the case was heard in county court while Mr. Ross was living. Ms. Moore’s burden of proof in that proceeding was clearly to establish paternity by a preponderance of the evidence. The decision of the county court was appealed to circuit court pursuant to Arkansas Code Annotated § 9-10-106(d) (1987) (formerly Ark. Stat. Ann. § 34-701.1(b) (Supp. 1985)). However, prior to the case being called in circuit court, Mr. Ross died. The State revived the action and pursued the appeal in circuit court. The initial question is which burden was applicable in the circuit court proceeding.
Upon appeal of a bastardy action from county court, a trial de novo without a jury shall be conducted by the judge of the circuit court. Id. A de novo trial has been defined as trying a matter anew; the same as if it had not been heard before and as if no decision had been previously rendered. Black’s Law Dictionary 392 (5th ed. 1979).
Because the matter was tried anew before the circuit judge after the putative father died, the reasoning of the supreme court in McFadden seems equally applicable in the analogous situation before us. In McFadden, the court explained that a higher standard of proof is required where one claims to be the illegitimate child of a deceased person because the death of the man charged with having fathered the child has deprived the estate of its most valuable witness. Id. at 461,647 S. W.2d at 432. The same is true in a bastardy proceeding against the estate of a deceased putative father. For this reason, Ms. Moore was required to establish paternity by clear and convincing evidence before the circuit judge. Thus, the question on appeal is whether the trial judge’s finding that paternity was proved by clear and convincing evidence is clearly erroneous. ARCP Rule 52(a).
Clear and convincing evidence has been defined as evidence so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted. Reed v. Reed, 24 Ark. App. 85, 749 S.W.2d 335 (1988). Viewed in the light most favorable to the appellee, the evidence reflects that Dorothy Moore testified that she had sexual relations with Robert Ross, Jr. when the two children were conceived and that during the time these children were conceived she did not have sexual relations with any other man. She also stated that Mr. Ross brought presents for them on holidays and sometimes gave them money when school started. During her testimony, she stated that a blood test had been performed in connection with these proceedings. However, for reasons unknown, the test results were not made part of the record. Several witnesses testified on behalf of the estate, all of whom generally testified that Mr. Ross had never acknowledged paternity of the children to them, nor were they otherwise aware of the alleged paternity.
The trial judge accepted Ms. Moore’s testimony as undisputed because none of appellant’s witnesses were able to affirmatively deny that Robert Ross was the father of the children. However, such acceptance seems questionable in light of the fact that the deceased would have been the only witness available to affirmatively deny paternity. Mr. Ross clearly denied having fathered the children in his answer to the complaint. Ms. Moore also testified that he denied the children were his in the prior court proceeding. The trial judge’s finding that Ms. Moore’s testimony was undisputed is clearly erroneous under these circumstances, and appellee’s attorney so conceded in his oral argument of the case before this court. The trial court, in ruling upon the paternity issue stated: “I find that Robert Ross is the father of these two children based upon the testimony, the scant testimony I have on the matter.” We believe the trial judge was clearly wrong in finding that the “scant” evidence adduced at trial rose to the level of clear and convincing proof.
Although appellant asks that the case be reversed and dismissed, we find it appropriate in this situation to remand. As the supreme court stated in Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983), when a trial record discloses a simple failure of proof, justice demands that we remand the cause and allow plaintiff an opportunity to supply the defect unless it clearly appears that there can be no recovery. See also, Colonial Life and Accident Ins. Co. v. Whitley, 10 Ark. App. 304, 664 S.W.2d 488 (1984). Here, the evidence might well have been much more developed than it was and it is not clear that there can be no recovery. Therefore we believe a remand is the appropriate course.
We would also note that despite appellee’s failure to file a notice of appeal, she asserts that the trial judge erred in not allowing the testimony of Joe Cambiano. Mr. Cambiano was the attorney for Robert Ross, Jr. prior to his death. Appellee sought to present evidence through Mr. Cambiano regarding conversations he had with Mr. Ross prior to his death. However, Mr. Cambiano’s proposed testimony was not proffered into the record. Error may not be predicated upon a ruling that excludes evidence unless the substance of the evidence is proffered. Ark. R. Evid. 103.
Reversed and remanded.
Cracraft and Mayfield, JJ., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Garland County Circuit Court. Appellant, Wesley Griffin, appeals his conviction of interference with a law enforcement officer with the use of a firearm, a violation of Arkansas Code Annotated § 5-54-104 (1987) (formerly Ark. Stat. Ann. § 41-2804 (Repl. 1977)), and the sentence imposed therefor. We affirm.
An information was filed June 11,1987, charging appellant with interference with a law enforcement officer and criminal trespass in that he did unlawfully, feloniously and knowingly employ and use deadly physical force against a law enforcement officer employing a firearm in furtherance of said felony. Further, the information charged that appellant did unlawfully and purposely enter the premises of another person against the peace and dignity of the State of Arkansas. Prior to trial, the State nolle prossed the criminal trespass charge.
Before arraignment, appellant filed a notice putting into issue his fitness to proceed and that he would rely on the defense of mental disease or defect. On the same day, appellant filed a motion requesting a court-ordered mental examination at the state hospital.
A hearing was held on appellant’s motion, and the court ordered that appellant undergo a preliminary evaluation at the Ouachita Regional Mental Health Center due to the extended delay required for admission to the state hospital. In the court’s examination order, the center was directed to make a written report and findings in accordance with Arkansas Code Annotated § 5-2-305(d) (Supp. 1987) (formerly Ark. Stat. Ann. § 41-605(4) (Repl. 1977)). After examination and in response, the center wrote a letter stating that they were “unable to come up with a consensus” in answering the questions posed and recommended a complete evaluation at Rogers Hall.
At the arraignment on August 6, 1987, the court directed that appellant be examined at the state hospital because of the health center’s recommendation. Following an exchange of inquiries and responses with appellant, the court allowed appellant to withdraw his defense of mental defect and set a hearing date for the trial.
On September 2,1987, a pre-trial hearing was conducted in chambers on the morning of trial to determine if appellant was mentally capable to withdraw his incompetency defense and for consideration of another matter not pertinent to this appeal. After finding appellant competent to withdraw his defense, the trial ensued. Appellant was found guilty as charged by the jury and sentenced to ten (10) years imprisonment.
Lack of mental capacity is an affirmative defense. Ark. Code Ann. § 5-2-312 (1987) (formerly Ark. Stat. Ann. § 41-601 (Repl. 1977)). Affirmative defenses can be withdrawn; however, the inherent nature of the mental defect defense, once asserted, requires the court to examine closely a defendant’s ability to take his competency out of issue. Although appellant argues the trial court erred in finding him fit to proceed and continuing with trial, we must first determine whether the court erred in allowing appellant to withdraw his affirmative defense of mental disease or defect. This presented a question of fact for the trial court and it is well settled that findings of fact by a trial judge will not be set aside by this court unless clearly erroneous. Arkansas Blue Cross and Blue Shield, Inc. v. Fudge, 12 Ark. App. 11, 669 S.W.2d 914 (1984). Thus, on appeal our inquiry is whether the court was clearly erroneous in allowing the withdrawal of the incompetency defense and proceeding to trial. The record supports the fact that the court did not err in this regard.
At the arraignment in the case at bar, the court generally acknowledged that the case could not proceed to trial on the basis of the health center’s letter and for that reason directed that appellant be taken to Rogers Hall for a complete mental evaluation. At that time, appellant expressed his wish to withdraw his defense and the court advised him that whether or not to proceed with his defense was a decision only he and his attorney could make and thereupon gave them time to confer. When the arraignment continued, the court allowed the withdrawal and found appellant fit to proceed.
Appellant argues under Pate v. Robinson, 383 U.S. 375 (1966) that the health center’s letter created a “bona fide doubt” as to his competency to stand trial. In Pate, the Supreme Court held that the defendant was constitutionally entitled to a hearing on the issue of his competency to stand trial because the facts and evidence presented to the trial court raised a “bona fide doubt” as to the defendant’s competency as is required under Illinois statutory law. We agree that in the instant case the health center’s letter may have created a bona fide doubt as to appellant’s competency. However, such an argument is misplaced since the court, in the case at bar, conducted a hearing prior to trial which complied with the procedural due process requirements set out in Pate. During a pre-trial hearing on the morning of trial, the court considered the propriety of appellant’s withdrawal of his incompetency defense before allowing the case to proceed.
On the record before us, the trial court properly allowed appellant to withdraw his defense. The court had appellant before him at two separate hearings and observed his demeanor, made inquiry of him, and considered his responses. A review of appellant’s testimony at various stages of this case, supports the court’s allowance of the withdrawal. Not only did appellant inform the court that he was able to cooperate and discuss his case, witnesses, and defenses with his attorney; he emphatically stated his desire not to go to Rogers Hall but to proceed to trial. Upon this basis, the trial court found appellant fit to proceed and we cannot say the court was clearly erroneous in allowing appellant to withdraw his incompetency defense prior to trial.
Furthermore, under Arkansas Code Annotated § 5-2-305(a)(2) (1987) (formerly Ark. Stat. Ann. § 41-605)(l)(b) (Repl. 1977)), the court may raise the incompetency defense on its own at any time it has “reason to doubt” a defendant’s fitness to proceed. Here, an examination of the record reveals that the court saw nothing which gave it reason to doubt appellant’s fitness to proceed. At trial, appellant participated in his own defense, testified regarding the events which gave rise to his arrest, and was cross-examined by the State. Upon this record, appellant has failed to demonstrate that he was prejudiced by the court finding him fit to proceed and continuing with the trial.
Affirmed.
Cracraft and Cooper, JJ., agree. | [
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Per Curiam.
The appellant has filed a Motion for Additional Costs seeking to recover for the premium paid by it on the supersedeas bond posted in this case pending the decision on appeal.
While the appellant prevailed in this court and is entitled to its costs on appeal, we have been cited no authority, and we know of none, which authorizes the premium on a supersedeas bond to be taxed as costs.
In 20 C.J.S. Costs § 367 (1940), it is stated:
In general, money paid as premiums for appeal or stay bonds is taxable as costs only when and in the amount provided by statute or rule of court.
Although there is some authority to the contrary, the general rule is that money paid to a surety company for becoming surety on an appeal or stay bond is not taxable as costs, in the absence of some statutory provision or rule of court specifically authorizing it, particularly where the bond was not ordered by the court.
See also 5 Am. Jur. 2d Appeal and Error § 1019.4 (Supp. 1988).
Motion denied. | [
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James R. Cooper, Judge.
The appellant in this criminal case was convicted in the Municipal Court of Clinton, Van Burén County, Arkansas, of the offense of driving while intoxicated. He appealed this conviction to the Circuit Court of Van Burén County for trial de novo. The circuit court’s local rules required the appellant to file his proposed jury instructions on December 3, 1987. The appellant failed to do so on that date, but did file proposed instructions the next day, December 4,1987. Trial was set for December 7,1987. Both parties appeared on that date and announced that they were ready for trial. The trial court, sua sponte, found that the appellant’s jury instructions were not timely filed under the local court rule; ordered the appeal dismissed; and remanded the case to municipal court. From that decision, comes this appeal.
For reversal, the appellant contends that the trial court erred in dismissing his appeal to circuit court because the dismissal denied him the right to a jury trial. We agree, and we reverse.
The State contends that the issue is not properly before us because the appellant did not object to the dismissal. The proceedings in the circuit court have not been transcribed. The circuit judge’s order recites that both parties were present and ready for trial, but does not indicate whether the appellant’s counsel objected or whether he had an opportunity to do so. Similar facts appear in Harrell v. City of Conway, 296 Ark. 247, 753 S.W.2d 542 (1988), and Weaver v. State, 296 Ark. 152, 752 S.W.2d 750 (1988). In both cases, the same circuit judge dismissed an appeal from a municipal court conviction on his own motion because the appellants did not comply with the same local rule governing jury instructions. The Supreme Court nevertheless held that the dismissal issue could be presented for the first time on appeal because the trial court’s sua sponte dismissal prevented either side from presenting arguments. 296 Ark. at 249-50. We think those cases stand for the proposition that, even in the absence of an objection, an argument that a trial court’s sua sponte dismissal was erroneous will be addressed on appeal unless the record affirmatively shows that the appellant had an opportunity to present the argument to the trial court. Therefore, we will consider the issue on its merits.
Again, the facts of Harrell and Weaver are helpful. In Weaver the appellant failed to submit any proposed jury instructions. When he appeared ready for trial, he informed the trial court that he considered the instructions proposed by the State to be adequate. The trial court dismissed Weaver’s appeal from his municipal court conviction on the ground that Weaver was in violation of the local rule requiring the defendant to prepare all instructions applicable to the defendant’s case. 296 Ark. at 153-54. On appeal, Weaver argued that the trial court deprived him of his constitutional right to a jury trial, as no jury is available in municipal court. The Supreme Court held that the local rule had been unreasonably applied and reversed. 296 Ark. at 155-56. The Weaver Court recognized that there were limitations on local rules: “ [t] wo of these limitations are that such local rules must not contravene a valid statute or be unreasonable.” 296 Ark. at 155, quoting Letaw v. Smith, 223 Ark. 638, 268 S.W.2d 3 (1954). The Court noted that the application of the local rule caused Weaver to lose access to the circuit court, and cited authority for the proposition that a local rule should neither be elevated to the status of a jurisdictional requirement, nor be applied in a manner which defeats altogether a litigant’s right of access to the court. 296 Ark. at 156, citing Lyons v. Goodson, 787 F.2d 411 (8th Cir. 1986).
In Harrell, the appellant failed to file a complete set of proposed jury instructions, although those instructions which were submitted were timely filed, and proposed instructions were filed by the State. The trial court dismissed Harrell’s appeal on its own motion for failure to file adequate jury instructions under the local rule. The Supreme Court reversed, noting that Ark. Code Ann. § 16-89-107(b)(1) (1987) and § 16-96-lll(a) (1987) provided the appellant with the right to a jury trial, and holding that the dismissal was an unreasonable application of the local rule because it denied Harrell his statutory right to a jury trial. 296 Ark. at 249-50.
We think that these cases stand for the proposition that a local rule may not be applied in a manner which contravenes a valid statute or is otherwise unreasonable. Weaver v. State, supra; Harrell v. City of Conway, supra. Although the instant case presents a somewhat different fact situation in that here the appellant did submit instructions differing from those proposed by the State, rather than failing to submit any instructions or submitting inadequate instructions as in the cases cited above, we find no meaningful distinction between the facts of this case and those presented in Weaver and Harrell, supra. The essential question under the rules enunciated in those cases is whether the local rule was applied in such a manner as to contravene a statute or completely defeat a litigant’s right of access to the court. In the case at bar the appellant was denied his statutory right to a jury trial, see Harrell, supra, and was completely denied access to the court. The local rule was thus improperly applied, and we reverse and remand for a trial on the merits.
Reversed and remanded.
Mayfield and Coulson, JJ., agree.
Stevenson’s trial was held December 7,1987. The local rule at issue in that case was effective at that time, although local rules were abolished by the Supreme Court’s revocation of Ark. R. Civ. P. Rule 83 by per curiam dated December 21,1987, which went into effect on March 14, 1988. Weaver v. State, 296 Ark. 152, 154 (1988). | [
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George K. Cracraft, Judge.
Edward Respalie appeals from that part of a decree of divorce granting custody of the parties’ three minor children to Barbara Respalie. We find no error and affirm.
A suit for divorce was filed by Mrs. Respalie in September of 1985. No action was taken on the complaint for a considerable period of time during which the custody of the children was in constant dispute. In November of 1986, a temporary order was entered in which the court directed that the custody of the older child, Rachel, remain with the mother and the other two children be in the custody of Mr. Respalie until further orders of the court and pending reports from the Department of Human Services as to the conditions of the homes of the two parties.
At a hearing on the divorce in December of 1986 it was announced that, although the reports from the Department had not been received, the court should have the benefit of them and would permit such additional testimony as the parties might wish to be taken with reference to the reports. At that hearing appellee testified that she could provide adequate living conditions for all three children and would do so. There was evidence that she was able to fully provide for their physical and emotional needs. She admitted in the course of her testimony that for the past year she had resided with a man to whom she was not married, and that she had no immediate plans to marry him. Appellant testified that he was better able to provide for the needs of the children and would do so. He admitted that he had also lived with a woman while the children were with him but stated that he had broken off the relationship.
Subsequent to the hearing, reports of the Department were filed with the court, without objection to their being considered. The report on the home of the appellee was favorable, and stated that all three of the children were living with the appellee in pleasant and well-kept surroundings. The older child stated that her father had caused her to have two black eyes and a concussion, and that she had returned to live with her mother. The Department further reported that there had been a substantiated report that appellant had sexually abused the four-year old girl, April. It also investigated complaints that appellant had been giving his children intoxicating liquors, not providing them with food, not sending them to school, and not providing utilities or water in the home. It reported that all subsequent attempts to contact appellant for home visits had failed and that he had refused to attend scheduled meetings at the Department’s offices. The report stated that after being interviewed on the abuse complaints appellant took the children to their mother, informed her that she should have custody of all the children, and removed himself to the State of New York. The Department recommended that none of the children be placed with appellant. The report concluded: “Due to the instability that John and April have endured, especially in the last few weeks, and the harm that is indicated by the substantiated sexual abuse complaint, this agency recommends that custody of the children be granted to Barbara Respalie.”
The court then entered a decree of divorce in which custody of the three children was granted to appellee subject to reasonable visitation rights in the appellant. Appellant then filed a motion asking the court to reconsider its order with respect to custody and to permit him to rebut the content of one of the Department’s reports. After a hearing the court denied the motion, finding no change in circumstances warranting modification. The testimony taken at that hearing was not preserved in the record and is not the basis for argument on appeal. Appellant argues only that the trial court erred in granting custody to appellee while living with a man to whom she was not married and that the award was not in the best interest of the children.
While our courts have never condoned a parent’s promiscuous conduct or lifestyle when conducted in the presence of a child, we have recognized the distinction between those human weaknesses and indiscretions which do not necessarily adversely affect the welfare of the child and that moral breakdown leading to promiscuity and depravity which does render one unfit to have custody of a minor child. Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986); Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). Here there was evidence that the mother adequately provided for the needs of the children and was a good mother to them. There was no evidence that the man with whom she lived was other than kind and good to the children, or that his presence in the home was presently affecting them adversely. There was evidence that appellant did not adequately provide for their physical needs while in his care and had sexually and physically abused them.
The chancellor was in a superior position to assess the situation and the effect appellee’s conduct would have on the children’s welfare. We have often recognized that there is no case in which greater deference should be given the chancellor’s position, ability and opportunity to see and evaluate the evidence than those involving the welfare of minor children. Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981). Chancellors cannot always provide flawless solutions to unsolvable problems, especially where only limited options are available. Although the conditions in which these children are placed are not ideal, we cannot conclude that the chancellor’s order does not more adequately provide for the welfare of these children than any option then available to him.
Affirmed.
Corbin, C.J., and Jennings, J., agree. | [
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James R. Cooper, Judge.
The appellant was convicted by a jury of manslaughter and was sentenced to seven years in the Arkansas Department of Correction. On appeal he argues three points: that the trial court failed to exercise its discretion in determining whether the appellant should be sentenced under the Alternative Service Act, Ark. Stat. Ann. § 43-2339 et seq. (Supp. 1977) [Ark. Code Ann. § 16-93-501 et seq. (1987)]; in the alternative, if this Court finds that the trial court did exercise its discretion, the trial court abused its discretion in refusing to sentence the appellant according to the Act; and that this Court should modify the appellant’s sentence because the trial court’s sentencing procedure was erroneous. We find that the trial court did err in failing to exercise its discretion.
The appellant was charged with first degree murder after he shot and killed his roommate, Rusty Powell. After a trial on February 25, 1987, the jury returned a verdict of guilty on the lesser included offense of manslaughter. According to the record, at the time of the shooting the appellant was nineteen years old and had no previous criminal convictions.
On March 2, 1987, the appellant’s attorney informed the prosecuting attorney that he intended to request sentencing under the Act, and, according to the defense attorney, the prosecutor stated that he had no objections. The appellant’s attorney also spoke with the trial court’s docket coordinator and informed her that he had several requests concerning sentencing.
The appellant’s attorney then tried to get a blank judgment and commitment form so that he could prepare it. After several requests to the prosecutor’s office, the appellant’s attorney received a blank form on March 31. The appellant’s attorney learned the next day that an order had been prepared by the prosecutor and submitted to the trial court. On April 3,1987, a motion was filed requesting that the appellant be sentenced according to the Act and a hearing was scheduled (apparently by the docket coordinator) for April 17.
On April 10, the appellant’s attorney learned that the appellant had been transferred from the Faulkner County Jail to the Arkansas Department of Correction. The record reflects that the judgment and commitment order was filed April 8. The appellant’s attorney then filed a motion on April 16, requesting that the appellant be present for the hearing on April 17.
At the hearing, the trial court stated that it had continued the hearing because the prosecutor had not yet responded to the motion filed the previous day. Later, the appellant’s attorney asked about a new hearing date. In response the trial court stated that he thought he had lost jurisdiction of the case and any relief would have to come from the Arkansas Department of Correction.
It is the appellant’s contention that Ark. Stat. Ann. § 43-2342 (Repl. 1977) [Ark. Code Ann. § 16-93-507 (1987)] requires the trial court to exercise its discretion when considering whether to apply the Act and failure to do so is error. We agree.
We will not disturb a trial court’s exercise of discretion unless it is abused, but the statute does contemplate that discretion will actually be exercised. We cannot sustain the sentence until that step has been taken. Turner v. State, 270 Ark. 969, 606 S.W.2d 762 (1980). We think that it is evident that the trial court did not exercise any discretion in this case because the order was entered prior to the scheduled hearing on the issue.
The State argues the trial court lost jurisdiction of the case once the judgment and commitment order had been entered and the appellant remanded to the custody of the Arkansas Department of Correction. A trial court cannot alter a valid sentence once it has been put into execution, and the issuance of a commitment puts the sentence into execution, Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987). However, we hold that the trial court erred in signing the commitment without exercising its discretion, especially in light of the fact that a hearing had been scheduled on the sentencing issue raised by the appellant.
.We need not consider the appellant’s alternative argument that the trial court abused its discretion in declining to sentence under the Act because we have found that the trial court failed to exercise its discretion. Furthermore, we think it would be improper for us to alter the appellant’s sentence. The Act plainly states “if it shall appear to the trial court that such person may be an eligible offender . . . .” Clearly, it is the function of the trial court, not the appellate court, to make this determination. We therefore reverse the appellant’s sentence and remand for sentencing in accordance with the appropriate statutes.
Reversed and remanded.
Jennings, J., concurs. | [
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Sam Bird, Judge.
Charles D. Smith appeals a decision of the Workers’ Compensation Commission holding that he had failed to prove by a preponderance of the credible evidence that he injured his back in a compensable fall that occurred on September 20, 1994. Appellant argues the decision is not supported by substantial evidence.
The appellant, a thirty-six-year-old man, was injured when a “man-lift” he was riding broke, and he fell thirty-five to forty feet. At first all he could feel was his legs hurting “real bad,” and he couldn’t get up. Appellant was immobilized and taken by ambulance to the emergency room at the University of Arkansas Medical Center (UAMS) where it was determined that his only injury was to his right knee. He was hospitalized overnight and sent home the next day in a thigh-to-ankle brace.
Appellant testified that he took physical therapy for several months and throughout that entire time he was telling his doctor, his physical therapist, and Ms. Judy Nelson, a nurse identified in a letter as the case manager for Systemedic Corporation who telephoned him to check on his progress, that he was having pain in his lower back. Dr. J. Michael Gruenwald, an orthopaedist and knee specialist, referred him to Dr. Glen Pait, a neurosurgeon. From x-rays Dr. Pait diagnosed appellant with degenerative disc disease of “obscure etiology.” Appellant said after his visit to Dr. Pait nothing more was said or done about his back.
Appellant was released to return to light-duty work on May 25, 1995. Appellee placed him in a small air-conditioned room called a scale room where he weighed incoming and outgoing trucks and dumped the load on incoming trucks by controlling levers in the office.
Appellant recounted that one morning in early June 1995, as he was leaving for work, his porch was wet with dew, his cane slipped, and he fell on his buttocks. The same day he changed scale rooms, and when he started to sit down at the desk in the new room, a shelf on the wall hit him in the upper back. Appellant said he doubled his pain pills and kept on working.
Then, according to appellant, on June 14, 1995, he sat down in a broken chair in one scale room, hit his upper back on the shelf in the other scale room, and his pain became unbearable. He said his back throbbed every time he breathed. He was taken by ambulance to the emergency room at Stuttgart Memorial Hospital. He was admitted and spent seven days in the hospital. He never returned to work.
In September 1995, appellant had arthroscopic surgery on his knee by Dr. James S. Mulhollan of the Arkansas Knee Clinic in Little Rock. After the surgery his knee was better, but he still could not put his full weight on it, and his back was still hurting.
Appellant testified that he and his family physician, Dr. Jerry D. Morgan of Stuttgart, could not accept the diagnosis that he had degenerative “bone” disease, as reported by Dr. Pait, so Dr. Morgan referred him to Dr. F. Richard Jordan, a Litde Rock neuro logical surgeon. Dr. Jordan did a CT scan but said other diagnostic testing would have to be postponed until appellant lost a great deal of weight.
The medical records show that appellant was treated at the UAMS emergency room on September 20, 1994, for an injury to his right knee secondary to a fall. On October 25, 1994, appellant was again seen at the UAMS emergency room, this time for abdominal pain. March 22, 1995, was the first time back pain was mentioned by Dr. Gruenwald. He reported that appellant was complaining of pain across his right buttock and weakness in his right leg. He thought that appellant might have some nerve impingement and referred appellant to the neurosurgery department for an evaluation. On April 4, 1995, appellant was examined by Dr. Pait, who reported that x-rays showed degenerative disc disease at L4-5 and L5-S1.
On May 22, 1995, Dr. Gruenwald wrote a letter “To Whom It May Concern” stating that appellant was under his treatment for knee and low back pain. In a similar letter dated June 21, 1995, Dr. Gruenwald stated that appellant was suffering from “right patellofemoral syndrome and low back disorder,” and that appellant’s back condition had been treated for a week at Stuttgart Memorial Hospital. According to counsel for both appellant and appellee, they had made several attempts to get copies of appellant’s medical records from Stuttgart Memorial Hospital but neither was successful.
The record also contains a report dated July 27, 1995, of Dr. William F. Hefley in which he says appellant is a new patient who complains of knee pain and a back injury from a fall. Finally, there is a letter from Dr. F. Richard Jordan, a neurological surgeon, to Dr. Jerry Morgan, of Stuttgart, dated July 31, 1995, which describes appellant’s fall down the grain shaft and states:
His major injury was to the right knee and it has not yet recovered. He walks with a cane because of that. The low back pain was noticed at the time of the first injury but the knee pain was so severe as to overwhelm it. However, as the knee has recovered the back seems to have worsened and it has gotten much worse over the last two months with radiation into the right hip and upper thigh but not any further down the leg ... .
His CT scan of the lumbar spine shows a transitional vertebra at L5 where there appears to be a facet joint on the left only and above that at the L4-5 level there is a very abnormal facet on the right where it appears that a piece has broken off the lateral aspect of the joint.
I believe his back symptoms are from the damaged facet joint. He is too large to investigate further with an MRI and his iodine allergy precludes myelography. For the time being I have simply suggested that he lose 80 pounds.
The administrative law judge held that the evidence “preponderates that [appellant] registered complaints relative to his low back, and attributed same to his compensable injury of September 20, 1994, prior to June 1995.” The Commission reversed. In its opinion the Commission delineated certain dates in the medical records that mention appellant complaining of back pain, and concluded that they were too vague, remote, and not supported by objective evidence to support a finding that appellant hurt his back at the time of his fall down the grain shaft.
Appellant argues that the Commission erred in finding that he had failed to prove by a preponderance of the credible evidence that his low back problems were causally related to his fall on September 20, 1994, or that they were a compensable consequence of his compensable knee injury. He points to his own testimony that shortly after he got home from the hospital his back was hurting so bad that he could not even get around with crutches; he required a walker. He also said he mentioned his back pain to Dr. Gruenwald when he went for his first visit, that Dr. Gruenwald said he would refer appellant to a back doctor, but it was a couple of months before he saw Dr. Pait. Appellant described his back pain “like a giant catch.” He also contends that Dr. Jordan’s finding of a broken bone in his back confirms a traumatic injury.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979); Crossett Sch. Dist. v. Gourley, 50 Ark. App. 1, 899 S.W.2d 482 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996); Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Milligan v. West Tree Serv., 57 Ark. App. 14, 941 S.W.2d 434 (1997); Willmon v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996); Bearden Lumber Co. v. Bond, 1 Ark. App. 65, 644 S.W.2d 321 (1983).
The record shows that appellant was either examined or had tests performed at UAMS on September 27, 1994 (x-rays, right knee); October 25, 1994 (ER); January 11, 1995 (Dr. Gruenwald, knee exam); January 18, 1995 (MRI of right knee); February 1, 1995 (follow-up exam of knee); March 14, 1995 (x-ray, abdomen); and March 22, 1995 (Dr. Gruenwald, note to refer to neurosurgery for back pain evaluation). On none of these dates except the last one is there any mention of appellant complaining of back pain. Furthermore, the lumbar-spine x-rays taken when appellant saw Dr. Pait surely would have shown such severe defects as “a transitional vertebra at L5 where there appears to be a facet joint on the left only and above that at the L4-5 level there is a very abnormal facet on the right where it appears that a piece has broken off the lateral aspect of the joint.” Dr. Jordan’s letter dated July 31, 1995, does refer to a CT scan, which is objective evidence that by that time there was something severely wrong with appellant’s back. However, there is absolutely nothing in the record to connect it to the September 1994 fall. Therefore, we find that the record contains sufficient evidence to support the decision of the Commission.
Affirmed.
Robbins, C.J., Rogers and Meads, JJ., agree.
Roaf and Crabtree, JJ., dissent. | [
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Sam Bird, Judge.
Eugene Ester appeals a decision of the Workers’ Compensation Commission holding that he was not entitled to benefits for his work-related injury because he failed to prove by a preponderance of the credible evidence that his injury was not substantially occasioned by the use of illegal drugs. Appellant argues that the Commission’s decision is not supported by substantial evidence and that Ark. Code Ann. § 11-9-102(5)(B)(iv) (Repl. 1996) violates his constitutional rights to equal protection and due process.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979); Crossett Sch. Dist. v. Gourley, 50 Ark. App. 1, 899 S.W.2d 482 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996); Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993).
Arkansas Code Annotated section 11-9-102(5) (B)(iv) (Repl. 1996) provides:
“Compensable injury” does not include:
(iv)(a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.
(b) The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.
(c) Every employee is deemed by his performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee’s body.
(d) An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician’s orders did not substantially occasion the injury or accident.
In the instant case, the evidence showed that appellant drove a truck delivering materials for appellee National Home Centers. On Tuesday, March 28, 1995, early in the afternoon, the truck appellant was driving failed to negotiate a curve on an exit ramp of 1-40 and turned over. Lumber littered the highway. The police officer who investigated the accident testified that there were no adverse weather conditions; that he smelled no alcohol on appellant; that there were 150 feet of “scuff” marks on the road but no skid marks; and that appellant was going too fast for conditions.
Appellant sustained a broken leg and was taken by ambulance to Arkansas Baptist Medical Center where they performed a “rapid urine drug screen” for alcohol, illegal drugs, and prescription drugs used in contravention of a physician’s order. There was evidence that appellant had been given morphine before the urine for the drug screen was obtained. The drug screen was positive for opiates and cocaine metabolites.
Appellant testified that, for the first time in several years, he had smoked cocaine the Friday night before the Tuesday accident. He had worked all day on Monday, and he had gone to work at six a.m. the day of the accident. He said he had made several deliveries and driven approximately 300 miles without mishap before the accident. He had then gone to Quality Lumber and picked up the load he was carrying when the accident happened. Appellant claimed that the lumber had been loaded improperly and had shifted, causing his truck to turn over. However, appellant admitted that he and a fork-lift driver had strapped the load down themselves.
The administrative law judge noted that the positive drug screen raised a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s order. However, he found that, “other than the positive drug screen, there is simply no other evidence to show that the accident was substantially caused by the use of illegal drugs.” The Commission reversed and held that appellant had failed to rebut the presumption that the injury was caused by illegal drugs. The Commission also considered and rejected appellant’s argument that Ark. Code Ann. § 11-9-102(5) (B) (iv) violated his constitutional rights of due process and equal protection. Therefore, benefits were denied.
On appeal, appellant first argues that the Commission’s decision is not supported by substantial evidence because the Commission improperly disregarded his testimony, and because a cocaine metabolite is not cocaine. Appellant’s brief contains a great deal of technical information about cocaine, its psychoactive component, its metabolites and their significance. However, there is no indication in the record that this evidence was ever presented to the Commission. Arkansas Code Annotated section 11 — 9— 705(c)(1)(A) (Repl. 1996) requires all oral evidence or documentary evidence to be presented to the Commission at the initial hearing on a controverted claim. See Chambers v. Int’l Paper Co., 56 Ark. App. 90, 938 S.W.2d 861 (1997); Death & Permanent Total Disability Trust Fund v. Whirlpool Corp., 39 Ark. App. 62, 837 S.W.2d 293 (1992). All legal and factual issues should be developed at the hearing before the administrative law judge. American Trans. Co. v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983); Walker v. J & J Pest Control, 6 Ark. App. 171, 639 S.W.2d 748 (1982). Consequently, we do not consider the technical evidence in appellant’s brief.
Neither can we agree with appellant’s assertion that the evidence was not sufficient to raise the statutory presumption or deny benefits on that basis. On January 21, 1998, we handed down two opinions affirming the Commission’s conclusion that marijuana metabolites in a person’s urine was sufficient to invoke the rebuttable presumption that the injury or accident was substantially occasioned by the use of the drug. Graham v. Turnage Employment Group, 60 Ark. App. 150, 960 S.W.2d 453 (1998); Brown v. Alabama Elec. Co., 60 Ark. App. 138, 959 S.W.2d 753 (1998). In the instant case the Commission held:
After weighing the claimant’s uncorroborated testimony regarding the nature and extent of his drug use and his uncorroborated [testimony] regarding his interpretation of the cause of his accident, as well as Officer Nunn’s testimony regarding the accident scene, and all other evidence properly in the record, we find that the claimant failed to prove by a preponderance of the credible evidence that his accident and injury were not substantially occasioned by the use of cocaine.
After noting that it gave appellant’s testimony little weight, and that neither the weather nor mechanical failure played any part in appellant’s single-vehicle accident, the Commission stated further:
Consequently, we find that the greater weight of the credible evidence establishes that the claimant’s accident was attributable to impaired judgment (either through excessive speed under the conditions or inattentiveness), and we find that the greater weight of the credible evidence in the record indicates that the claimant’s impairment was caused by the use of cocaine.
Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. Weaver v. Whitaker Furniture Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996). See also Eagle Safe Corp. v. Egan, 39 Ark. App. 79, 842 S.W.2d 438 (1992). We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Milligan v. West Tree Serv., 57 Ark. App. 14, 941 S.W.2d 434 (1997); Willmon v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992). We find the Commission’s decision to be supported by substantial evidence.
Appellant also argues that the statute is unconstitutional because the presence of drug metabolites is not rationally related to intoxication or impairment since it bears no relationship to the effect of the drug on the body, and therefore, it is an arbitrary classification. Appellant cites case law that holds that under these circumstances the statute violates equal protection. It appears that no medical evidence was presented to the Commission explaining the effect of cocaine on the body, what its psychoactive agent is, how long the psychoactive effect lasts, how it is metabolized, how long it takes to be metabolized, in what form it is excreted, or how long traces of it are excreted.
A statute is presumed to be constitutional, and all doubts about constitutionality must be resolved in favor of constitutionality. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987). The party challenging the legislation has the burden of proving that the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts. Arkansas Hosp. Ass’n v. Arkansas State Bd. of Pharmacy, 297 Ark. 454, 763 S.W.2d 73 (1989); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). On an equal protection challenge to a statute, it is not the appellate court’s role to discover the actual basis for the legislation. Instead, we are merely to consider whether any rational basis exists that demonstrates the possibility of a deliberate nexus with state objectives, so that the legislation is not the product of utterly arbitrary and capricious government purpose and void of any hint of deliberate and lawful purpose. Id. The Commission is required to rule on constitutional questions that are properly before it in order to provide the appeals court with fact-findings sufficient to decide the constitutional issue. Green v. Smith & Scott Logging, 54 Ark. App. 53, 922 S.W.2d 746 (1996).
The Commission resolved the equal protection and due process challenge by pointing out that (1) the rebuttable presumption is consistent with, and rationally related to, the legitimate purpose of placing the burden of production on the party with greater access to relevant evidence since the claimant is generally in a better position to know in advance whether drug testing will indicate the presence of illegal drugs in his body at the time of the injury, and (2) a positive test for marijuana and cocaine metabolites in urine samples creates a sufficiently reasonable inference of impairment so as to support the presumption that the injury was caused by drug use. Another potential reason for the presumption that provides a rational basis of a deliberate nexus with state objectives is to promote a drug-free workplace. Therefore, the Commission’s conclusion that the statute is constitutional is correct.
Affirmed.
Jennings and Crabtree, JJ., agree.
These two cases have been accepted for review by the Arkansas Supreme Court. [Reporter's note: See 334 Ark. 32 and 334 Ark. 35 (1998).] | [
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John F. Stroud, Jr., Judge.
This appeal arises from a summary judgment entered in a declaratory judgment action in Garland County, Arkansas, in favor of appellee, B&L Products, Inc., against appellant, Tri-State Insurance Company. We attempted to certify this appeal to the supreme court, but certification was refused. We affirm.
Appellant issued a commercial general liability (CGL) insurance policy to appellee in 1994. The policy provides coverage for any “ ‘ [a] dvertising injury’ caused by an offense committed in the course of advertising [appellee’s] goods, products, or services.” In 1995, a company called Geographies, Inc., filed the underlying copyright-infringement action against appellee in federal court in the State of Washington. The copyright action involves paper products produced by appellee that are known as “Koolnotes” and paper products produced by Geographies that are known as “Geo-Notes.” Geographies learned that OfficeMax, a large retailer of office and school supplies, was selling appellee’s Koolnotes, which according to Geographies were virtually identical to its GeoNotes.
Appellant refused to defend the underlying lawsuit on behalf of appellee, contending that the claim did not arise out of “advertising” as provided in the insurance policy. On March 8, 1996, appellee filed a complaint for declaratory judgment in the circuit court of Garland County, Arkansas, asking that the court declare that appellant must provide a full defense in the underlying copyright-infringement case and that appellant must fully indemnify appellee with respect to the underlying action, including costs, attorney’s fees, expenses, and any judgment that might issue in the underlying action.
On October 7, 1996, appellant filed its motion for summary judgment, asserting that there were no genuine issues of material fact and that it was entitled to summary judgment as a matter of law. Appellee responded to the motion for summary judgment and filed its own countermotion for the same, agreeing that there were no genuine issues of material fact but asserting that it, rather than appellant, was entitled to summary judgment. The trial judge entered summary judgment in favor of appellee.
Appellant raises three points of appeal: (1) appellee failed to introduce in the declaratory judgment action the insurance policy and underlying copyright-infringement complaint as required by Rules 10(d) and 56(c) of the Arkansas Rules of Civil Procedure; (2) the underlying copyright-infringement complaint contains no allegation that appellee engaged in advertising activities; and (3) the underlying copyright-infringement complaint contains no allegation that appellee’s copyright infringement was caused by advertising activities.
Under the first point, appellant argues that Rule 10(d) of the Arkansas Rules of Civil Procedure requires that a copy of the written instrument be attached as an exhibit to the pleading that asserts a claim or defense based upon the written instrument. Since appellee failed to attach the insurance policy and the underlying copyright-infringement complaint to its complaint for declaratory judgment, appellant argues that the trial court erred in granting summary judgment pursuant to Rule 56(c) of the Arkansas Rules of Civil Procedure. We disagree.
Neither party argued to the trial court that any pertinent language from the policy or the underlying complaint was missing. Moreover, in oral arguments before this court appellant’s counsel was candid in responding to our questions on this point and acknowledged that the pertinent language from the policy and the underlying complaint was before us. In short, both parties moved for summary judgment in this case, alleging that there were no genuine issues of material fact, and both have acknowledged to this court that all pertinent provisions of the underlying complaint and insurance policy are before this court. We find no prejudicial error that would require us to reverse on this point. See Jefferson v. State, 328 Ark. 23, 941 S.W.2d 404 (1997).
Under the second point, appellant argues that the term “advertising” includes only promotional activities that are directed to the public at large; that it does not include a salesperson’s one-on-one solicitation for sales; and that the underlying complaint in the Washington case did not allege that appellee engaged in “advertising” activities. We disagree.
The pertinent policy language provided coverage against any “ ‘ [a] dvertising injury’ caused by an offense committed in the course of advertising [appellee’s] goods, products, or services.” The term “advertising injury” is defined in the policy as:
[an] injury arising out of one or more of the following offenses: (a) Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services; (b) Oral or written publication of material that violates a person’s right of privacy; (c) Misappropriation of advertising ideas or style of doing business; or (d) Infringement of copyright, title or slogan.
The term “advertising” is not defined in the policy, and we have found no Arkansas cases defining the term in the context of a CGL policy.
Appellee’s product promotion was not aimed at the general public, but rather at a small, targeted market of large retailers. Appellant contends that appellee’s one-on-one sales solicitation cannot constitute “advertising” because it is not aimed at the public at large. Appellant acknowledges in its reply brief, however, that “some dictionaries include definitions of ‘advertising’ that require public dissemination and other definitions that do not.” In attempting to give this term its plain, ordinary, and popular meaning in the context of this case, members of this court have also viewed the term differently. We therefore regard the term as ambiguous in the context of this case and construe it against the appellant as the drafter of the policy. Hartford Fire Ins. Co. v. Carolina Cas. Ins., 52 Ark. App. 35, 914 S.W.2d 324 (1996). Construing the term “advertising” in the manner urged by the dissent would mean that appellee could never recover under this provision of the insurance policy because its product market is a relatively small group of large retailers, not the public at large. Accordingly, under the circumstances presented in this case, we find no error in the trial court’s finding that the manner in which appellee promoted its product falls within the meaning of the term “advertising” under the policy, even though the product advertising was not aimed at the public at large.
Moreover, appellant acknowledges that the pleadings in the underlying action generally determine an insurance company’s duty to defend. Madden v. Continental Cas. Co., 53 Ark. App. 250, 922 S.W.2d 731 (1996). An insurer must defend the case if there is any possibility that the injury or damage may fall within the policy coverage. Id. It is the allegations made against the insured, however groundless, false, or fraudulent such allegations may be, that determine the duty of the insurer to defend the litigation against its insured. Id.
Paragraph nine of the underlying copyright-infringement complaint provided in pertinent part:
On information and belief, since at least as early as July 13, 1995, B&L, with full knowledge of Geographies’ rights, has been infringing Geographies’ copyrights in and relating to the Subject Works by using, reproducing, displaying, distributing, marketing, and offering for sale unauthorized copies of each of the Subject Works. Among other things, B&L has been manufacturing, distributing, and offering to sell memo pads under the mark KOOLNOTES which are copies of the Subject Works ....
The prayer for relief in the underlying complaint provided in pertinent part:
[That appellee] be enjoined from . . . marketing, offering, selling, disposing of, licensing, leasing, transferring, displaying, advertising, reproducing, developing, or manufacturing any work derived or copied from any of the Subject Works ....
We find no error in the trial court’s finding that the underlying complaint contained sufficient allegations of appellee engaging in “advertising” activities.
Under its last point, appellant argues that the underlying complaint contains no allegation that appellee’s copyright infringement was caused by advertising activities. Appellant argues that coverage only extends to an advertising injury that is “caused by an offense committed in the course of advertising [the insured’s] goods, products or services,” and that the policy’s causation requirement was not satisfied in this case because the in-person sales talk, even if regarded as “advertising,” was not the cause of the alleged copyright infringement.
Paragraph nine of the underlying complaint alleges that appellee “has been infringing Geographies’ copyrights in and relating to the Subject Works by using, reproducing, displaying, distributing, marketing, and offering for sale unauthorized copies of each of the Subject Works.” (Emphasis added.) The prayer for relief asks that appellee “be enjoined from . . . marketing, offering, selling, disposing of, licensing, leasing, transferring, displaying, advertising, reproducing, developing, or manufacturing any work derived or copied from any of the Subject Works . . . .”
Once again, we find no error in the trial court’s finding that the underlying complaint contained sufficient allegations that appellee’s copyright infringement was caused by its advertising activities.
Affirmed.
Meads, J., agrees.
Robbins, C.J., and Arey, J., concur.
Jennings and Roaf, JJ., dissent. | [
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John E. Jennings, Judge.
The only issue raised on appeal in this divorce case is whether the award of alimony was excessive. We hold that it was and modify the award.
Appellant Jack Mitchell and the appellee, Martha Mitchell, married in 1972. A daughter was born in 1989. By October 1996, Mr. Mitchell had become romantically involved with another woman and moved from the parties’ home. Mrs. Mitchell sued for divorce.
The parties entered into a property settlement agreement, dividing their property equally. After a hearing the court granted Mrs. Mitchell the divorce, approved the property settlement agreement, awarded $897.00 per month as child support, and awarded $3,000.00 per month as alimony.
An award of alimony is not mandatory, but is solely within the trial court’s discretion. Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997). If alimony is awarded, it should be set at an amount that is reasonable under the circumstances. Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996). The amount of alimony awarded lies within the sound discretion of the chancellor. See Ducharme v. Ducharme, 316 Ark. 482, 872 S.W.2d 392 (1994). It follows that in setting the amount of alimony, the chancellor may consider a range of acceptable alternatives.
The purpose of alimony is to rectify, insofar as is reasonably possible, the frequent economic imbalance in the earning power and standard of living of the divorced husband and wife. Drummond v. Drummond, 267 Ark. 449, 590 S.W.2d 658 (1979). The primary factors to be considered are the need of one spouse and the ability of the other spouse to pay. Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990). Many factors are considered in setting the amount of alimony. Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). Ordinarily, fault or marital misconduct is not a factor in an award of alimony. Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982). The chancellor’s award of alimony will not be reversed absent an abuse of discretion. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).
In the case at bar, the parties had been married for twenty-four years and both are in good health. The parties equally divided almost $400,000.00 in total assets.
Mr. Mitchell has a master’s degree in hospital administration and works as a hospital administrator. His gross income at the time of trial was approximately $129,000.00 per year with a net take-home pay of $83,000.00. Mrs. Mitchell has a master’s degree in food and nutrition and has worked as a hospital dietician. Since the birth of the parties’ daughter, Mrs. Mitchell has stayed at home and earned approximately $1,300.00 per year. At the time of the divorce she was not employed.
During the pendency of the divorce, Mrs. Mitchell received $3,000.00 per month as support for herself and her daughter. At trial she submitted a list of expenses totaling $3,700.00 per month. This included anticipated future expenses which the chancellor declined to consider, leaving a total of $2,800.00 as the monthly expenses for Mrs. Mitchell and the child.
Neither this court nor the supreme court has ever attempted to reduce the amount of alimony to a mathematical formula. Presumably, it has been thought that the need for flexibility outweighs the corresponding need for relative certainty.
After considering all the appropriate factors, we conclude that the amount of alimony awarded was excessive. Under these circumstances, and on de novo review, we may set the amount of alimony. See Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982); Dingledine v. Dingledine, 258 Ark. 204, 523 S.W.2d 189 (1975). In the case at bar we find that alimony should be set at $2,100.00 per month.
Affirmed as modified.
Pittman and Stroud, JJ., agree. | [
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Andree Layton Roaf, Judge.
This is an appeal from a jury verdict in favor of the appellees, who were plaintiffs in a negligence case. The jury found that Ira Lowe, deceased, was negligent in causing the death of the appellees’ sixteen-year-old son in an automobile accident, and awarded $500,000 in compensatory damages and $500,000 in punitive damages. The punitive damages were awarded based upon willful and wanton conduct by Lowe, who was intoxicated when the accident occurred. The appellant’s sole point on appeal is that the trial court erred in excluding the testimony of one of his witnesses because of violation of the rule of sequestration. We agree that the trial court erred, and reverse and remand.
On a rainy day in April 1993, Ira Lowe and Tommy Ralph were involved in an automobile accident. Ralph was killed instantly when his car struck Lowe’s vehicle. Lowe and one of Ralph’s passengers, Jamie Owens Mooney, were injured and were transported to the hospital for medical treatment.
Ralph’s parents, Mike and Cleta Ralph, subsequently filed suit against Lowe. Some time after the commencement of the lawsuit, Lowe died, and the action was continued against his estate. At trial, there was evidence that Lowe was intoxicated, and there was also testimony that Ralph had been “goofing off’ immediately prior to the accident by jerking the steering wheel back and forth. There was also testimony that Ralph’s car hydroplaned and he lost control of the car before hitting Lowe. In a deposition taken before he died, Lowe testified that he pulled off onto the shoulder of the road and stopped when he saw Ralph’s car coming towards him. However, there was conflicting testimony at trial as to whether Lowe’s vehicle was straddling the center line of the road when the accident occurred, or completely in his own lane of traffic.
Mooney testified at trial. She stated that Lowe’s car was stopped in the middle of the road at the time of the accident. Mooney was the only witness who placed Lowe in the center of the road at the moment of impact. Trooper Jerry Roberts, one of the officers at the scene of the accident, also testified. He stated that, based on his observation of the final resting place of the vehicles, the location of debris and scuff and gouge marks on the road surface, the accident occurred in Lowe’s lane of traffic.
Roberts was later recalled, and during his direct examination, one of Lowe’s witnesses, Anita Kramers, heard approximately thirty minutes of his testimony before Lowe’s attorney became aware she was in the courtroom. Lowe’s attorney immediately interrupted the proceedings and informed the court of her presence. Ralph’s attorney then objected to allowing her to testify because she violated Ark. R. Evid. 615, the witness sequestration rule. The trial court ruled that although her actions were innocent, he had no discretion in the matter and was required by law to exclude her testimony. Kramers’ testimony was then proffered for the record. Her testimony directly contradicted that of Mooney. In her proffer, she stated that she was the emergency medical technician who transported Lowe and Mooney to the hospital after the accident. She stated that, at the hospital, Mooney told her that Ralph had been “goofing off’ when his car hydroplaned, Ralph lost control of the car, crossed the center line, and hit Lowe’s car. Kramers further stated that Mooney admitted that the accident was Ralph’s fault and not Lowe’s fault. At the close of all the evidence, the jury found in favor of Ralph and awarded damages.
Lowe’s sole point on appeal is the trial court committed reversible error when it excluded Kramers’ testimony. He asserts that her testimony was crucial in that it would have impeached Mooney’s testimony. He contends that the trial court has only very limited discretion to exclude the testimony, and should have utilized other available sanctions. We agree.
Rule 615 of the Arkansas Rules of Evidence provides:
At the request of a party the court shah order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
Rule 615 was invoked upon oral motion by Lowe, and Kramers violated the sequestration rule when she sat in the courtroom and listened to a portion of Trooper Roberts’ testimony.
Both parties assert that Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987), is controlling. We agree that it is controlling, and further conclude that it mandates reversal of this case. Blaylock involved a tort action for alienation of affection. The appellant was sued for allegedly engaging appellee’s wife in a homosexual relationship. Following appellee’s opening statement, his daughter approached opposing counsel and stated that she wanted to testify because the appellee’s opening statement was untrue concerning appellant’s conduct toward the couple’s children. The daughter was called as a witness, however, the trial court excluded her testimony because of violation of Rule 615. The supreme court reversed, stating that the three possible methods of enforcement available to the trial judge when a violation of the sequestration rule has occurred are: (1) citing the witness for contempt; (2) permitting comment on the witness’s noncompliance in order to reflect on her credibility; and (3) refusing to allow her testify. In addition, the court stated that the trial court has very narrow discretion in refusing to allow the testimony of a witness who violates the rule, and the discretion can only be exercised when the noncompliance occurs with the consent, connivance, or procurement by a party or his attorney. The court stated that since the daughter was an important witness, as conceded by both parties, it was not harmless error to exclude her testimony.
In Lowe’s case, there was no evidence of the consent, connivance, or procurement by appellant or his attorney. In fact, Lowe’s attorney immediately informed the court when he learned that Kramers was present in the courtroom. His attorney asserted that Kramers heard no testimony that was pertinent to her own testimony, which was impeachment testimony. During voir dire, Kramers testified that she was unaware that she was not to be in the courtroom, and that when she arrived at the courthouse, someone from the clerk’s office had told her to go in the courtroom. Moreover, the trial court stated that Kramers’ actions were absolutely innocent and unintentional, and there was no allegation of any misconduct by the appellant or his attorney. Finally, the testimony of Kramers contradicts the testimony of Mooney, the only witness who placed Lowe’s car in the center of the road. The exclusion of her testimony was clearly prejudicial to Lowe. Under the circumstances, it was reversible error for the trial court to exclude Kramers’ testimony, and we reverse and remand for a new trial.
Reversed and remanded.
Arey and Stroud, JJ., agree. | [
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John B. Robbins, Chief Judge.
Appellant Claude Riley appeals the decision of the Ashley County Chancery Court that held him in contempt for failure to pay certain obligations provided for under the terms of a property settlement agreement that was incorporated into the parties’ divorce decree in 1983. His ex-wife, appellee Christine Riley, filed a motion for contempt on December 12, 1996, alleging that appellant had failed to pay numerous debts that he had agreed to pay in their property settlement agreement. After considering the case, the chancellor found that appellant was in contempt for failure to abide by the agreement as to payments that he should have paid within the applicable five-year statute of limitations. The debts' left unpaid were mortgage payments on the house where appellee and the children lived, life insurance premiums, and health insurance premiums. Burial insurance premiums were also delinquent, but they were found to be outside the statute of limitations. This appeal resulted. Though we review chancery cases de novo on appeal, we will not reverse the findings of fact of a chancellor unless the decision was clearly erroneous. Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997). We affirm.
When the parties divorced in 1983, appellant conveyed to appellee by warranty deed their residence in Hamburg, Arkansas, and agreed to pay all monthly mortgage payments on that property. He further agreed to pay certain life insurance premiums and all hospital and medical insurance premiums so long as the children were entitled to support and as long as appellee lives, provided she does not remarry.
Payments on the house ceased when appellant filed bankruptcy in 1989. The house was subject to foreclosure, and to save her home appellee was forced to refinance the mortgage through a credit union and make payments of $300 per month. Appellant had failed to pay more than $19,000 of monthly mortgage payments and property taxes at the time of the hearing.
Both parties agree that since the property settlement agreement is an independent contract, a five-year statute of limitations applies to the monthly mortgage installments. Ark. Code Ann. § 16-56-111 (1987). Because appellee filed her motion for contempt on December 12, 1996, any payments due prior to December 12, 1991, were barred by the statute of limitations. The chancellor so found, and appellee does not contest this finding.
Appellant asserts, though, that since he discontinued payments as early as 1989, and perhaps even in 1988, appellee’s cause of action is barred because she did not bring her cause of action until later than five years after his initial failure to pay. Appellee responds by stating that failure to pay each monthly mortgage payment as it became due was a cause of action unto itself. The chancellor determined that when an obligation is made payable by installments, the statute of limitations runs against each installment as it became due and unpaid. See Karnes v. Marrow, 315 Ark. 37, 864 S.W.2d 848 (1993); Wilson v. Wilson, 231 Ark. 416, 329 S.W.2d 557 (1959). The chancellor’s decision was not clearly erroneous, and appellant’s argument on this point fails for that reason.
Appellant next argues that the chancellor erred when he ordered appellant to pay the monthly mortgage installments because the debt had been refinanced and was serviced by a new lender. His argument is that this constitutes rewriting the property settlement agreement. This argument is not well founded. The settlement agreement did not specify to whom the payment would be made or on what terms; the parties agreed that appeEant would pay the mortgage and taxes on the house, period. Furthermore, it was due to appeEant’s faüure to perform his obligations under the terms of this agreement that a new mortgage was obtained by appeEee so that she would not lose her home. Enforcement of the agreement was proper. We cannot say that the chanceEor’s decision was clearly against the preponderance of the evidence.
We do not address appeEant’s argument that this debt should be extinguished by bankruptcy. While obligations for alimony, support, and chüd support are not dischargeable, obligations that are in the nature of a property settlement are. In re Ramey, 59 B.R. 527 (Bankr. E.D. Ark. 1986). In determining how to characterize a debt from a divorce situation, the question is what was the intent of the parties at the time of the divorce. See Boyle v. Donovan, 724 F.2d 681 (8th Cir. 1984). However, this determination is for the bankruptcy court, not this court, to decide. Ramey, supra. We note that as of the date this case was filed in our court, appeEant was seeking a determination of the dischargeability issue in the bankruptcy court, the proper forum for that determination. In re Williams, 703 F.2d 1055 (8th Cir. 1983); In re Pierce, 142 B.R. 308 (Bankr. E.D. Ark. 1992). Furthermore, the order appealed from did not address dis-chargeability, and the chancellor’s findings noted that the bankruptcy discharge “is not considered.”
The other two obligations at issue on appeal are the life and medical insurance premiums that appellant obligated himself to pay. These were also subject to the five-year statute of limitations. Appellee does not quarrel with this finding. Appellant asserts the same arguments concerning dischargeability as he posited with regard to the mortgage payments, and we dispose of this argument in the same fashion.
Affirmed.
Rogers and Crabtree, JJ., agree. | [
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John F. Stroud, Jr., Judge.
This is an adoption case in which James Lee Reid, appellant and natural father of the adopted child, challenges the adoption on the grounds that 1) he received no notice of the petition for adoption and 2) the petition was neither signed nor verified by the person seeking the adoption. Appellees Gregory S. Frazee, who is the adoptive father, and his wife, the child’s natural mother, ask that the adoption stand or, alternatively, that the case be remanded for a hearing on the merits of the petition for adoption. We find that appellant was entitled to notice; therefore, we reverse and remand for a hearing on the merits.
Appellant and Jacqueline L. Reid were divorced by decree of the District Court of Douglas County, Kansas in 1989, when their only child was one and one-half years old. The district court granted primary custody to the child’s mother, who later married Gregory Frazee and became Jacqueline Frazee. Appellant was ordered to pay $275 a month support and maintenance until the child reached the age of eighteen. On September 5, 1995, Mr. and Mrs. Frazee, who had lived in Arkansas for five years, filed in the Probate Court of Pope County a petition to adopt the child. After a hearing on October 12, 1995, the court granted the petition for adoption. The decree of adoption included the finding that appellant’s consent to the adoption was not required.
We now address the points on appeal.
I. Whether appellant was entitled to notice of the adoption proceedings.
Adoption proceedings were unknown to the common law, so they are governed entirely by statute; because they are in derogation of the common law, the statutes are strictly construed and applied. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992). Arkansas Code Annotated § 9-9-207 (Repl. 1993) provides in part:
(a) Consent to adoption is not required of:
(1) A parent who has deserted a child without affording means of identification or who has abandoned a child;
(2) A parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significandy without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree.
When a petitioner alleges that a person entitled to notice cannot be located, the court shall appoint an attorney ad litem who shall make a reasonable effort to locate and serve notice upon the person entitled to notice, and upon failing to so serve actual notice, the attorney ad litem shall publish a notice of the hearing directed to the person entided to notice in a newspaper having general circulation in the county. Ark. Code Ann. § 9-9-212(a) (Repl. 1993). A person who wishes to adopt a child without the consent of the parent must prove by clear and convincing evidence that the consent is unnecessary. King v. Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997).
Appellees alleged in their petition for adoption, as they do on appeal, that the consent of appellant was not required because he had for one year or more failed significantly, without justifiable cause, to communicate with the child; for one year or more failed to provide for the financial care and support of the child as directed by law or judicial decree; and had abandoned and deserted the minor child. At the hearing on the petition to adopt, the child’s mother testified that she had done what could be done to notify appellant of the petition for adoption. She stated that certified letters sent to his last two known addresses in Kansas had been returned unclaimed, and that she believed appellant might have recently moved to California. She also testified concerning the absence of contact between appellant and the child and the absence of support for over a year.
The probate court found that the natural father had failed to comply with the divorce decree’s requirement to keep the child’s mother informed of his address. The court also found that appellant’s consent to the adoption was not required because for a period of one year preceding the date of the filing of the petition he a) had failed significantly, without justifiable cause, to visit and communicate with the child; and b) had failed to provide financial care and support for the child as directed in the decree of divorce. The probate court granted the petition for adoption upon finding that it was in the best interest of the child to do so.
Appellant subsequently filed a petition to set aside the decree of adoption on the ground that he had not received notice of the hearing on the petition to adopt. He denied the allegations upon which appellees asserted that his consent was not required, and he asserted that appellee Ms. Frazee knew his whereabouts. He alleged that at a meeting of bankruptcy creditors approximately eighteen days before the petition for adoption was filed, she and he discussed his plan to return to California to live with his mother. He further alleged that Ms. Frazee knew his mother’s address.
In appellees’ response to appellant’s petition to set aside the decree of adoption, Ms. Frazee admitted attending the bankruptcy meeting but denied any discussion of appellant’s move to Califor nia. Appellees filed an affidavit in which Ms. Frazee referred to a visit by the child to his paternal grandmother in California in the summer of 1995 and stated that she could not verify whether appellant telephoned the child in California.
Appellant also filed a motion for summary judgment asking that the decree of adoption be set aside because 1) the petition was neither signed nor verified by appellee Gregory Frazee; and 2) appellant had no notice of the adoption hearing, nor was an attorney ad litem appointed for him. At a hearing on his motion for summary judgment, appellant pointed out defects in the adoption proceeding. The probate court denied the motion for summary judgment upon finding that appellant was not entitled to receive notice or give his consent because of his actions in failing significantly and without just cause to communicate with the child, or to provide for the child’s care and support as set out in Arkansas Code Annotated section 9-9-207(a) (2). Further, the court dismissed, with prejudice, appellant’s petition to set aside the final decree of adoption, and the court confirmed the final decree of adoption.
Appellant argues on appeal that the trial court erred in making findings of fact without affording him the opportunity to present his side at a hearing on the merits to determine whether his consent to adoption was required. Fie states that if he had received notice of the proceedings, he could have appeared and presented his side of the case. Then, he continues, the probate court could have appropriately ruled on whether his consent was required and could have decided whether the adoption should go forward without his consent. Appellees respond that appellant is an absentee father who willfully failed to support or communicate with his child, and who abandoned and deserted his child. They point to testimony, affidavits, and responses to interrogatories that support their position. They assert that the fact that appellant did not receive notice by certified letter is the fault of appellant and not of appellees.
We agree with appellant that the court erred in entering its order of adoption without affording him an opportunity to appear and present his response to the petition for adoption. The critical aspects of this case are that appellant did not receive notice of the petition to adopt nor was an attorney ad litem appointed to represent his right to receive notice. Arkansas Code Annotated § 9-9-212(a) (Repl. 1993) mandated that, once appellees alleged that they could not locate him, his interests were to be protected by the appointment of an attorney ad litem who should make a reasonable effort to locate him and serve notice upon him. The statute is not discretionary. All findings of the probate court regarding support, communication, and abandonment were therefore improperly entered. We also think that the two letters sent to appellant’s Kansas address did not constitute a good faith effort to notify appellant of the petition to adopt his natural child, particularly when appellee Ms. Frazee knew that his mother lived in California.
We reverse and remand for a hearing to determine whether appellant’s consent to adoption was required. We need not reach the parties’ arguments concerning support and communication because those issues will be determined by the probate court after a full hearing on the merits of this issue.
II. Whether the statutory requirements for the filing for the petition of adoption and the granting for the decree of adoption have been met.
Arkansas Code Annotated section 9-9-210(a) (Repl. 1993) specifies that certain information be stated in a petition for adoption signed and verified by the petitioner. Appellant complains that appellee Mr. Frazee did not sign and verify the petition, nor did his testimony at the hearing on the petition to adopt cure this defect. He notes that in a 1997 affidavit appellee Ms. Frazee stated that she signed her husband’s name and that the signature was notarized by a notary public who knew it not to be genuine. Appellees Mr. and Ms. Frazee point out that they were both petitioners for the adoption. They contend that the wife signed her husband’s name with his permission and further contend that her testimony at the adoption hearing verified the allegations in the petition.
We need not address this issue because we reverse and remand on the first point on appeal, and the probate court now clearly has jurisdiction to hear this adoption proceeding.
Reversed and remanded.
Ardy and Roaf, JJ., agree. | [
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John Mauzy Pittman, Judge.
This case involves the sale of standing timber by appellant Walter Buford to appellees Jim Alderson and Donna Alderson, d/b/a Alderson Lumber Company. The timber was located on eighty acres of land owned by appellant Buford. Pursuant to the terms of the sale agreement, Alderson had one year from September 22, 1994, to harvest the timber. Buford appeals the amended judgment that the Cross County Chancery Court entered against him in which the court awarded Alderson damages of $35,700.90 for the timber that his company was not able to harvest. We affirm the chancery court’s amended judgment.
Below, the chancery court prepared a memorandum opinion setting forth its findings of fact. In this opinion, the chancery court summarized the material facts of this case, in pertinent part, as follows:
The facts are basically undisputed. In a nutshell, Alderson Lumber Company [bought] the timber off 80 acres of land owned by Mr. Buford. The timber deed granted to Alderson Lumber Company a period of one year to remove the timber. The timber deed was not recorded. Mr. Buford sold the 80-acre tract before the one-year period had expired. The purchaser of the land ordered Alderson Lumber Company off the land. Alderson Lumber Company filed suit against Mr. Buford for breach of contract and prayed for its lost profits as damages ....
Alderson Lumber Co. employees began harvesting the trees around October 1, 1994. They worked in the woods until approximately December 1st when the winter rains forced them from the woods. They started back to work on the 80-acre tract in the spring of 1995.
On April 14, 1995, Mr. Buford, along with his co-tenants, sold the 80-acre tract to Mr. Willard G. Burks and his wife. Mike Alderson [appellee Alderson’s son] first learned of the sale when Mr. Burks told him to leave the woods. Mr. Buford never gave notice to Mike Alderson nor Alderson Lumber Company that the land had been sold. He never asked them when the timber cutting would be finished. Mr. Buford testified that he thought the timber cutting was finished when he received the [purchase price] because Mike Alderson had told him that he could not pay him until the logs were harvested. Mr. Buford was paid on or about November 16, 1994.
On appeal, Buford presents a very narrow allegation of error. According to Buford, the chancery court erred in characterizing the transaction at issue as a contract for the sale of timber. Buford asserts that the transaction was not a contract but was, instead, his delivery of a deed to the timber to appellee Alderson in return for $17,200; therefore, he argues, he is not hable to appellee Alderson for breach of a contract to sell the timber at issue because there was no contract between them to be breached. We note that the deed by which Buford conveyed the timber to Alderson contained the following warranty provision, “that [Buford], his heirs, successors and assigns, will warrant and defend unto the Grantee, his heirs, successors and assigns, the title and quiet possession to said timber and trees and to the land whereon they are located, against the claims of all persons whomsoever.” We note further that Buford conveyed the eighty acres at issue to the Burkses by a warranty deed that did not make any mention of his previous sale of the timber on the acreage to appellee Alderson.
Assuming, without deciding, that Buford’s characterization of his transaction with appellee Alderson as the delivery of a timber deed is correct, we conclude that the chancery court did not err in awarding damages to appellee Alderson. The chancery court’s award of damages was correct, given the warranty provision of the timber deed Buford delivered to Alderson and given the Arkansas Supreme Court’s case of Koonce v. Fordyce Lumber Co., 123 Ark. 85, 184 S.W. 440 (1916). Koonce is on all fours with the material facts of this case.
In Koonce, the Arkansas Supreme Court stated:
The [Fordyce] lumber company purchased the timber on the lands in question in 1908 from appellants and the same was conveyed to them by a warranty deed granting twenty years in which to remove the timber. On July 11, 1913, appellant Koonce conveyed his one-half undivided interest in the lands to appellant, McKee, by deed without reserving or excepting the timber therefrom. On February 13, 1914, McKee conveyed to R.S. Treadway and W.J. Key without any exception or reservation of the timber and the deed was recorded on the 28th of February. This deed contained some lands on which the right of the lumber company to cut timber had expired, and a Hen was retained therein to secure the unpaid purchase money and subsequently on March 23, 1914, McKee and wife executed a quit claim deed to said grantees releasing the vendor’s hen. On March 19, 1914, Treadway and Key conveyed all the standing timber on the lands to Cox and Richardson, who in the suit of the lumber company against them, were held to be innocent purchasers thereof, and entitled to the timber, after which decree appellee company instituted this suit. Its deed to the timber was not recorded until April 13, 1914.
Appellants first demurred to the complaint for misjoinder of parties and upon the demurrer being overruled, answered admitting the making of the conveyances of the timber and lands at the time alleged and stated that the deed from Koonce to McKee of the one-half interest in the land was not intended to and did not convey the timber, which both parties knew belonged to the lumber company and was only intended to convey the lands, that therefore no reservation or exception of the timber was made therein; that upon the making of the deed to Treadway and Key, it was understood between the parties that the timber upon the lands was not conveyed although no exception or reservation was contained in the deed; that said grantees knew that the lumber company was the owner of the timber.
They denied any liability to the lumber company for the loss of the timber and alleged that if any damage or loss was suffered, it was on account of the failure of the company to record its deed to the timber, which they supposed had been recorded. The timber conveyed to the lumber company by appellants’ deed and lost to them by their subsequent conveyances of the land without reservation or exception of the timber as set out, was shown to be worth the sum of $3,500. Koonce and McKee testified denying any intention to wrong the lumber company or deprive it of the timber sold to it by the later conveyances of the land, each testifying that they notified the grantees down to and including Tread-way and Key that the timber belonged to the lumber company and did not pass with the conveyance of the land. They also stated that they had no information that the timber deed was not recorded and in fact supposed it had been recorded before making such conveyances.
.... Their [appellants’] testimony also shows that they had no intention in fact or rather did not make the conveyance of the land to the last grantees for the purpose of defrauding the lumber company of the timber already conveyed to it as they supposed its deed was of record and would protect its interest. However, this may be, it is unquestionably true that the conveyance of the land conveyed the timber standing thereon and that this fact was well known to appellants in making the deeds thereto. They also knew that their conveyances of the land contained no reservation or exception of the timber thereon from the grant, and were chargeable of course with knowledge that the conveyances of the land without such reservation or exception of the timber, carried the timber and would have effect to defeat their prior conveyances of the timber to the lumber company if said timber conveyance was not of record and the lands were afterwards granted to a bona fide purchaser without notice of it. Their affirmative action in making such conveyances without proper exceptions and reservations to protect their grantee of the timber whose deed might not have been and was not recorded, had the same effect to defeat its right and defraud the grantee of the timber as though they had intended the result effected, and for which they must be held answerable. They were owners as tenants in common, each of an undivided half of the lands upon which the timber stood, and conveyed the timber thereon to the lumber company by a warranty deed granting twenty years time for its removal, and their warranty was broken, and their grantee appellee, deprived of the timber by a bona fide purchaser through their subsequent conveyances of the lands within said time without reservation or exception of the timber, for the loss of which they became hable. Whether the action be regarded arising out of contract or sounding in tort, the effect is the same, since the damage would not have resulted but for their subsequent conveyances of the land without reservation or exception of the timber ....
Koonce v. Fordyce Lumber Co., 123 Ark. at 85-87, 89-90.
For the reasons set forth by the Arkansas Supreme Court in Koonce, we affirm the amended judgment entered by the Cross County Chancery Court in this case.
Affirmed.
Rogers and Neal, JJ., agree.
We note that no argument has been made concerning the application or effect of Ark. Code Ann. § 4-2-107 (Repl. 1991), or of Ark. Code Ann. § 4-2-312 (Repl. 1991). | [
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John B. Robbins, Chief Judge.
Appellant High Capacity Products appeals the Workers’ Compensation Commission’s award of benefits to appellee Gwendel Moore for a rapid repetitive injury she received while working for appellant’s electrical meter-box manufacturing company. Appellant asserts there is no substantial evidence to support the Commission’s findings. We disagree and affirm.
Moore, a thirty-eight-year-old woman, worked for appellant for approximately five years. She used an air gun to assemble blocks with a quota goal of one thousand units per day. She was required to assemble each block by using an air-powered appliance to attach two nuts to each block. She would hold the parts of the unit with her left hand and work the air gun with her right hand. She averaged using the air gun to attach a nut every fifteen seconds, according to the testimony of her supervisor. The majority of her time was consumed in this quota assembly. Her job required three maneuvers to be repeated in succession all day: assembling the separate parts, using the air-compressed equipment to attach the parts together with nuts, and throwing the units into a box.
She testified she had experienced two prior injuries due to her employment with appellant and that it had accepted and paid for both instances. The injuries were strains in the same location. Neither past injury had left her debilitated to the point that she was unable to return to work at full capacity. With the more recent of those injuries, she saw the company doctor and her own doctor in August 1994 for left shoulder and neck pain. She received treatment for a cervical strain and was released to return to work. She admittedly experienced pain in her shoulder and neck between August 1994 and March 7, 1995. It was only the last incident, the one at issue before us, that appellant declined to accept.
On March 7, 1995, early on in her shift she reported neck and shoulder pain to her immediate supervisor. Her testimony reflected that she had experienced no other trauma or accident to her shoulder and neck other than the prior injury sustained at work for this employer. She testified that the routine of “just constantly working and lifting and pulling on the [air gun] machine and holding the parts” caused her shoulder and neck pain to recur to such a degree that she finally reported it on that day, March 7, 1995.
The immediate supervisor corroborated this testimony, recalling not a specific incident of injury, but only that Moore reported hurting in her left shoulder and neck. That supervisor told her to report this to the woman in higher command. That person told Moore to go to her family physician, not the company doctor.
Moore did see her physician, Dr. Pinkerton, on March 10th, and he diagnosed a cervical strain. He began conservative treatment of her injury, including physical therapy, and ordered an MRI for evaluation of her cervical problem. The MRI revealed spondylosis, a degenerative condition related to use and age, but no significant cervical findings for purposes of her complaints. He took her off work on April 7, 1995.
On April 20, 1995, she was referred to a neurosurgeon, whose examination revealed a two-thirds capacity in the range of motion of her neck. His opinion was that she suffered a cervical strain, and he too recommended physical therapy. By June 1995, she had seen an orthopedic surgeon. His evaluation was that she had a cervical muscular/ligamentous injury that could take weeks or months to resolve. Another physician evaluated her for potential trigger point injections for relief. When seen by Dr. Jacob Abraham at The Pain Clinic, he diagnosed chronic myofascial cervical pain. She continued to see Dr. Abraham off and on until September 6, 1995, when he no longer had any services to offer her.
To prove a rapid repetitive motion injury, Moore had the burden of proving by a preponderance of the evidence that the injury:
(1) arose out of and in the course of her employment;
(2) caused internal or external physical harm to the body requiring medical services;
(3) was caused by rapid repetitive motion;
(4) was the major cause of the disability or need for treatment.
See Ark. Code Ann. § 11-9-102(5) (Supp. 1997); see also Lay v. United Parcel Serv., 58 Ark. App. 35, 944 S.W.2d 867 (1997). The injury must also be established by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(5)(D) (Supp. 1997). Objective findings are those findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16) (Supp. 1997).
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Commission’s findings and affirm if the decision is supported by substantial evidence. White v. Frolic Footwear, 59 Ark. App. 12, 952 S.W.2d 190 (1997). Substantial evidence is that evidence a reasonable mind might accept as adequate to support a conclusion. Mikel v. Engineering Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). A decision of the Commission is reversed only if we are convinced fair-minded persons using the same facts could not reach the conclusion reached by the Commission. Id. In our review, we recognize that this court defers to the Commission in determining the weight of the evidence and the credibility of the witnesses. Id. The issue is not whether we may have reached a different conclusion or whether the evidence might have supported a contrary finding. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). Furthermore, on appeal to this court, we review the decision of the Commission and not that of the administrative law judge. Thornton v. Bruce, 33 Ark. App. 31, 800 S.W.2d 723 (1990). In this case the ALJ denied benefits and the Commission reversed that decision. We have applied this standard of review and find there to be substantial evidence to support the Commission’s findings.
Given the fact that Moore testified that she suffered no other injury or trauma to her left shoulder and neck, other than the earlier compensated injuries to the same location while in the same job, the Commission had substantial evidence to find she sustained a compensable injury arising out of and in the course of her employment for appellant. Objective measurable findings included the documented moderate spasms with “large palpable triggers” on at least two doctor visits in August 1995. This court and the Commission have accepted muscle spasms as objective findings. University of Arkansas for Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997); see also Daniel v. Firestone Bldg. Prods., 57 Ark. App. 123, 942 S.W.2d 277 (1997). “Spasm” is defined in Stedman’s Medical Dictionary 1304 (23d ed. 1976) as: “(1) An involuntary muscular contraction .... (2) Increased muscular tension and shortness which cannot be released voluntarily and which prevent lengthening of the muscles involved; [spasm] is due to pain stimuli to the lower motor neuron.” This constitutes an objective finding pursuant to § 11-9-102(16) for purposes of this injury. See University of Arkansas for Med. Sciences, supra.
Rapid Repetitive Motion
This court has had the opportunity in recent cases, not available to the Commission at the time it rendered its opinion, to develop somewhat that area of the workers’ compensation law concerning what constitutes rapid repetitive motion. We think the Commission correctly applied the statutory requirement and that there is substantial evidence to support the Commission’s finding that Moore’s injury was caused by rapid repetitive motion. None of the cases mirror the situation and circumstances of appellee herein. Nonetheless, we believe that this is the most compelling case demonstrating rapid repetitive motion presented to this court to date. We have stated that a claimant need not prove exact or almost exactly the same movement again and again to show “rapid repetitive motion.” Baysinger v. Air Sys., Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996). Multiple job tasks, when considered together, could satisfy the statutory requirements. Id. There was testimony presented that her assembly duties required her to ensure one nut to be in place on an average of every fifteen seconds during the majority of her shift. We find this to be substantial evidence to support the Commission’s award of benefits.
Major Cause
“Major cause” means more than 50% of the cause of the disability or need for treatment and it is established by a preponderance of the evidence presented to the Commission. Ark. Code Ann. § ll-9-102(14)(A) (Repl. 1996). Appellant asserts that an expert, meaning a physician, must state what the major cause was. However, the legislature did not so limit the acceptable evidence that could be considered.
The Commission determined that Moore was a credible witness and believed that she had suffered no other injury to her left shoulder or neck other than due to her activities in her work for appellant. She consistently told medical providers of past injury to the same location. Appellant makes much of the fact that her chiropractor, treating her for a subsequent automobile accident in November 1995, was unaware of her prior left shoulder and neck injury. This is irrelevant to her claim for benefits, though, since her benefits expired in September 1995.
The Commission observed that there was no evidence brought out to contradict the testimony that she suffered no other injury. Contrary to appellant, we do not believe that this observation shows an improper shifting of the burden of proof, though perhaps inartfully stated by the Commission in its opinion. The preponderance of the evidence indicated that the sole cause, therefore certainly the major cause of the disability or need for treatment, was the injury that resulted from her work activity. We cannot say the Commission erred in this respect for there is substantial evidence to support its finding.
Temporary Total Disability
Moore was awarded temporary total disability benefits from April 7, 1995, until September 6, 1995, when her healing period ended. When an injured employee is totally incapacitated from earning wages and remains in her healing period, she is entitled to temporary total disability benefits. Arkansas State Highway & Transp. Dep’t. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1991). The healing period ends when the employee is as far restored as the permanent character of the injury will permit. Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996). The determination of when the healing period has ended is a factual one and will be upheld on appeal if there is substantial evidence to support it. Id. After undergoing months of physical therapy, medication, and injection treatments, no physician had any additional treatment to offer her after September 6, 1995. The Commission had evidence that the doctor who stated it could take weeks or months to recover from this cervical strain injury, orthopedist Dr. Giller, wrote this in a letter to her treating physician, Dr. Pinkerton, who had referred her to him.
She remained off work while she sought these medical treatments, so there was no need for any of the subsequent treating physicians to opine that she should be off work. Though there was one small “RTW: 5-18-95” notation on a visit to Dr. Pinkerton, he subsequently continued to see Moore and treat her. Moore testified that she had never been released to return to work. We cannot say that Moore was not temporarily and totally disabled from the last day she worked in April 1995 until September 6, 1995, when no further treatment could help her.
Affirmed.
Crabtree, J., agrees.
Rogers, J., concurs. | [
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Margaret Meads, Judge.
David L. McKissick appeals the decision of the Board of Review which denied him benefits on the basis that he was discharged from last work for misconduct connected with the work. At issue in this case, which is submitted without supporting briefs, is whether the Board’s finding of misconduct is supported by substantial evidence. We affirm.
Appellant was employed by J.B. Hunt Transport as an over-the-road truck driver. On June 14, 1996, while driving for his employer, appellant’s truck struck a car which was stopped on the side of the interstate in heavy fog, totaling the car. Appellant was not cited for this accident, but the company considered it a major preventable accident and placed him on one year’s probation. Appellant was advised in a post-accident review with his employer that in the future, when he encountered adverse weather conditions, he should reduce his speed or stop until conditions improved. Further, appellant was assured there would be no adverse consequences if he had to stop due to bad weather as long as he contacted his fleet manager and kept him informed about the situation. Appellant signed the post-accident review report acknowledging that he was on probation for one year and agreeing to decrease his speed to meet driving conditions. He was cautioned that he was subject to termination in the event of another preventable accident during the probationary period.
Appellant’s second accident occurred on April 30, 1997, while he was still within his probationary period. This accident occurred when appellant’s truck sideswiped a tanker truck in high winds on the interstate, and he was cited for careless driving. In his post-accident review following this incident, appellant admitted that he was traveling at fifty-eight or fifty-nine miles per hour. Evidence revealed that the employer’s trucks are governed at fifty-nine miles per hour. Although he had been instructed to decrease his speed or to stop during inclement weather, appellant was driving as fast as the truck would travel. Appellant was discharged the day after the second accident occurred.
At the Appeal Tribunal hearing, appellant admitted that he had received copies of the employee’s and the driver’s manuals, and that he had read and understood them. Relevant portions of the J.B. Hunt Driver’s Manual were introduced into evidence at the hearing. Under the heading “Actions Which May Result In Termination Without A Prior Warning,” the following is listed: “Major preventable accident or more than one minor preventable accident.” Representatives of the employer testified that although they considered the first accident to be major, the company decided to give appellant further training and the opportunity to continue driving.
Additionally, “Receipt of reckless or careless driving citation” is listed under the heading “Actions Which Result In Automatic Termination,” in the driver’s manual. The record clearly reflects that appellant’s ticket from the second accident was for careless driving.
Our standard of review in employment security cases is well-settled. This court reviews the findings of fact of the Board of Review in the light most favorable to the prevailing party, only reversing where the findings are not supported by substantial evidence. Dray v. Director, 55 Ark. App. 66, 930 S.W.2d 390 (1996). Substantial evidence is such evidence that a reasonable mind would find adequate to support a conclusion. Id. The credibility of the witnesses and the weight to be accorded their testimony are matters to be resolved by the Board of Review. Anderson v. Director, 59 Ark. App. 266, 957 S.W.2d 712 (1997). Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).
Arkansas Code Annotated § ll-10-514(a) (Repl. 1996) provides that an individual shall be disqualified for benefits if he is discharged for misconduct in connection with the work. “Misconduct,” for purposes of unemployment compensation, involves: (1) disregard of the employer’s interest; (2) violation of the employer’s rules; (3) disregard of the standards of behavior which the employer has the right to expect; and, (4) disregard of the employee’s duties and obligations to his employer. Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996). There is an element of intent associated with a determination of misconduct. Mere good-faith errors in judgment or discretion and unsatisfactory conduct are not considered misconduct unless they are of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or intentional disregard of the employer’s interest. Id. Whether an employee’s acts are willful or merely the result of unsatisfactory conduct or unintentional failure of performance is a fact question for the Board to decide. Id.
Considering the facts of this case, we find that appellant manifested a substantial disregard of both his employer’s interest and his own duties and obligations as an employee when he exceeded a safe driving speed under high-wind conditions, particularly since he had been counseled to either slow down or stop during inclement conditions, had agreed in writing to do so, and was on probationary status. We cannot say that there was not substantial evidence to support the Board of Review’s determination that appellant was terminated for misconduct connected with the work.
Affirmed.
Bird, Rogers, and Crabtree, JJ., agree.
Robbins, C.J., and Roaf, J., dissent. | [
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D. Franklin Arey, III, Judge.
The White County Circuit Court awarded appellee Candy Stevens compensatory and punitive damages, costs, and a reasonable attorney’s fee against appellant, Odom Antennas, Inc. The award of compensatory damages was based on alternative theories, breach of contract and a claim for retaliation under the Arkansas Civil Rights Act of 1993; the award of punitive damages was based upon a violation of the Arkansas Civil Rights Act. Appellant argues that the trial court erred when it determined that the employment agreement was valid and enforceable; that the award of punitive damages is not supported by an award of compensatory damages; and that there is insufficient proof as to the number of appellant’s employees, so that punitive damages could not be calculated under the Arkansas Civil Rights Act. We affirm.
Bill Thornton, Odom’s chief executive officer, persuaded Stevens to come work for the company. She moved from Washington, D.C., to Beebe and began work on July 11, 1994, with the tide of Executive Director. Her duties included securing financing to help overseas customers and handling personal matters assigned by Thornton. Thornton testified that Stevens was a “perfect employee” for the first couple of months of employment.
On September 8, 1994, Stevens presented Thornton with an employment agreement that she prepared. He asked her a question, they discussed it, and then they both signed the agreement. It provides that “Employer agrees to employ the full-time services of a professional and administrative nature of the Employee . . . and the Employee agrees to accept employment from the Employer . . . .” The agreement outlines Stevens’s compensation and benefits, and in paragraph 5 states: “In the event of termination of employment for any reason, other than voluntary termination on the part of Employee, the Employer agrees to separation pay equal to one (1) year [sic] salary.”
Stevens and Thornton agree that their relationship began to worsen almost immediately after the agreement was signed. Thornton testified that Stevens began to be absent too much, and that she was causing “chaos” with the other employees. He alleged that he fired her for a number of reasons, including (1) not cancelling an advertising order, (2) telling an Arkansas Development Finance Authority employee that Odom was not interested in any of its programs, (3) not setting her own priorities, and (4) having a bad attitude.
Stevens, on the other hand, claims that she was ultimately fired because she would not he for Thornton in an Equal Employment Opportunity Commission investigation. She testified that Thornton told her not to talk to the EEOC investigator, but she did so anyway, giving the investigator examples of what was happening at the office. She also gave two or three employees articles on sexual harassment.
Thornton asked Stevens to leave the company on Monday, September 19, 1994. He said that he did not trust her; she refused to leave, citing her contractual obligation. The next day Thornton gave Stevens a signed note that informed her that her employment was terminated.
Stevens sued for breach of the employment agreement, and sought to recover her salary for one year and benefits. She subsequently amended her complaint to add a claim for retaliation and termination in violation of the Arkansas Civil Rights Act, Title VII of the Federal Civil Rights Act of 1964, and common law wrongful discharge.
The trial court awarded Stevens a year’s salary on her breach of contract claim, with an attorney’s fee and costs. The trial court found that Stevens stated a claim for retaliation under the Arkansas Civil Rights Act, and that she was entitled to compensatory damages in the same amount as awarded on the breach of contract claim. However, the trial court did not allow Stevens to recover this same sum twice; rather, the trial court awarded Stevens a year’s salary in the amount of $36,400 under the alternative theories. The trial court awarded Stevens punitive damages on her Arkansas Civil Rights Act claim; that amount was limited to $50,000 under Ark. Code Ann. § 16-123-107(c) (Supp. 1997), based on a perceived number of employees at Odom.
Odom first argues that the trial court erred by determining that the employment agreement was a valid and enforceable contract. Odom contends that the agreement does not obligate Stevens to do anything; thus, her promise to perform is illusory, and there is no valid consideration on her part supporting a contract.
This argument raises the issue of mutuality of obligation. The essential elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations. Hunt v. McIlroy Bank & Trust, 2 Ark. App. 87, 616 S.W.2d 759 (1981). The concept of “mutual obligations” has been explained by our supreme court as follows:
A contract to be enforceable must impose mutual obligations on both of the parties thereto. The contract is based upon the mutual promises made by the parties; and if the promise made by either does not by its terms fix a real liability upon one party, then such promise does not form a consideration for the promise of the other party. “. . . [MJutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound.” A contract, therefore, which leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other.
Townsend v. Standard Indus., Inc., 235 Ark. 951, 954, 363 S.W.2d 535, 537 (1963)(quoting El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184, 131 S.W. 460 (1910)) (citations omitted). Mutual promises that constitute consideration for each other are the classic method of satisfying the doctrine of mutuality. J.L. McEntire & Sons, Inc. v. Hart Cotton Co., 256 Ark. 937, 511 S.W.2d 179 (1974).
The employment agreement satisfies the doctrine of mutuality because it contains mutual promises that are consideration for each other. Odom “agrees to employ the full-time services of a professional and administrative nature” of Stevens. In turn, Stevens “agrees to accept employment from” Odom. Stated another way, Stevens agreed to work for Odom, by rendering “professional and administrative services.” This is not an illusory promise on Stevens’s part; she is agreeing to work for Odom, in a particular capacity, in return for stated consideration. Cf. Keith v. City of Cave Springs, 233 Ark. 363, 344 S.W.2d 591 (1961)(a promise to supply all of the services that a promisee may thereafter order is not an illusory promise; instead, it is a very definite promise that creates a large power in the promisee).
Odom insists that it is necessary to construe the employment agreement against Stevens in order to resolve this issue. We disagree. If there is no ambiguity in the language of the employment agreement, then there is no need to resort to rules of construction. See Koppers Co. v. Missouri Pac. R.R. Co., 34 Ark. App. 273, 809 S.W.2d 830 (1991). The determination of whether a contract is ambiguous is a matter of law. Arkansas Burial Assoc. v. Dixon Funeral Home, Inc., 25 Ark. App. 18, 751 S.W.2d 356 (1988). The quoted provisions of the employment agreement are not ambiguous; therefore, resort to rules of construction or to Stevens’s subjective interpretation of the employment agreement is not necessary.
Odom argues that the trial court’s award of punitive damages was not proper, because the trial court did not award compensatory damages under the Arkansas Civil Rights Act. The trial court’s Amended Findings of Fact and Law state:
Under ACA 16-123-101 . . . Stevens is entitled to compensatory damages in the sum of the total salary and all perks of the contract between the parties. However, the Court interprets the contract to the figure of one’s salary regardless of the reason for termination. The amount awarded under ACA 16-123-107 is the same amount awarded under the contract action. [Stevens] cannot collect both amounts.
Plaintiff is entitled to punitive damages, attorney fees and costs for violation of ACA 16-123-101 et seq.
Thus, the trial court awarded compensatory damages under alternative theories: breach of contract and Stevens’s Arkansas Civil Rights Act retaliation claim.
Because the trial court did award compensatory damages under the Arkansas Civil Rights Act, its award of punitive damages on that same cause of action was proper. Punitive damages would be improper in the absence of an award of compensatory damages for the underlying cause of action. See Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988). Here, there is an award for damages on the underlying cause of action; compensatory damages were awarded under the Arkansas Civil Rights Act. Thus, punitive damages on that same cause of action are proper.
It is of no significance that the trial court awarded compensatory damages on alternative theories. We read the trial court’s Amended Findings of Fact and Law as actually awarding compensatory damages under the Arkansas Civil Rights Act; it goes on to prohibit a “double recovery” of the same sum. Since compensatory damages were awarded for retaliation, an award of punitives for that same reason is proper. See Bell, supra.
The trial court awarded punitive damages under Ark. Code Ann. § 16-123-107(c). Odom argues that there was no proof as to the number of its employees, which is necessary to calculate punitive damages under § 16-123-107(c). Therefore, Odom argues that the award of punitive damages was in error.
Stevens’s claim for retaliation was based on Ark. Code Ann. § 16-123-108(a). See Theresa M. Beiner, An Overview of the Arkansas Civil Rights Act of 1993, 50 Ark. L. Rev. 165, 191 (1997). If a cause of action for retaliation is proven, § 16-123-108(c) provides that the “remedies and procedures available in § 16-123-107(b) shall be available . . . .” See Beiner, supra, at 195. Section 16-123-107(b) allows a recovery of “compensatory and punitive damages, and, in the discretion of the court, [recovery of] the cost of litigation and a reasonable attorney’s fee.” Section 16-123-107(c) is not applicable.
Although the trial court incorrectly applied 16-123-107(c), instead of 16-123-107(b), the award of punitive damages should still be sustained. “It has long been the rule in Arkansas that a trial judge’s decision will not be reversed if he reached the right result, even though he gave an erroneous reason.” Moose v. Gregory, 267 Ark. 86, 90-91, 590 S.W.2d 662, 665 (1979). Here, the trial court had the authority under § 16-123-107(b) to award punitive damages; Odom does not contend that punitive damages were not justified at all. Therefore, we affirm the trial judge’s award of punitive damages. This result renders Odom’s argument concerning proof of its number of employees irrelevant on appeal, since § 16-123-107(b) does not require this proof.
Affirmed.
Stroud and Roaf, JJ., agree.
We note that Stevens was fired in 1994, but the General Assembly did not enact a statutory cause of action for retaliation until 1995. See § 16-123-108 (originally enacted as Act 480 of 1995). This point was not raised below. Because we do not think this point raises a question of subject matter jurisdiction, it will not be considered here. See Leinen v. Arkansas Dep’t of Human Serv., 47 Ark. App. 156, 886 S.W.2d 895 (1994); Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987). | [
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Wendell L. Griffen, Judge.
Erika Matlock appeals a Compensation Commission that denied benefits for injuries suffered when she fell while returning to her work station at Arkansas Blue Cross Blue Shield after a trip to the restroom. Appellant argues that the Commission erroneously interpreted Act 796 of 1993 when it determined that she was not performing employment services when she was injured and, therefore, that her injury was not compensable. She also contends that the Commission’s decision is not supported by substantial evidence. We hold that the Commission’s finding that appellant was not performing employment services when she sustained injuries from the fall is not supported by substantial evidence, nor does the Commission’s opinion display a substantial basis for denial of the relief sought. We specifically hold that the Commission erred in construing Arkansas Code Annotated section 11-9 — 102(4) (B) (iii) (Supp. 1999) to require a denial of benefits under the facts of this case. Thus, we reverse the Commission’s decision and remand for a determination of appellant’s benefits. In reaching this decision, we serve notice that our statement in Beaver v. Benton County, 66 Ark. App. 153, 156, 991 S.W.2d 618, 620 (1999), that “the personal-comfort doctrine is no longer the law,” was obiter dictum. Finally, we take this opportunity to list some factors that should be instructive to the Commission, employers, workers, and their legal counsel in determining whether an employee’s activity falls within the course of employment.
Background Facts
The parties strongly disagree on whether the Commission correctly found that appellant was not performing employment services when she fell on stairs while returning from the tenth-floor restroom to her ninth-floor workstation. However, appellant’s account regarding the underlying facts is not controverted. Appellant testified that she began working for Blue Cross Blue Shield in January 1999 as an overpayment clerk. At around 9 o’clock a.m. on January 29, 1999, appellant left her desk on the ninth floor to use the restroom. The ninth-floor restroom was occupied, so she went to the restroom on the tenth floor. While returning to resume work on the ninth floor, appellant fell on the stairs and sustained a contusion to her left knee, strained her right ankle, and injured her back. The back injury was eventually diagnosed by Dr. David L. Reding, a Litde Rock neurosurgeon, as a small disc rupture at IA-SI on the right, for which Dr. Reding recommended conservative treatment. Appellant testified that she was off work for almost three months (from April 5 until July 6, 1999) for her back problem.
Appellant filed a workers’ compensation claim. Her employer controverted the claim, contending that appellant was not performing employment services when the accident occurred. The record of the hearing before the Commission’s Administrative Law Judge (ALJ) consists of appellant’s testimony and medical exhibits. The ALJ denied the claim, and appellant appealed to the Commission. The Commission affirmed, relying on our statement in Beaver v. Benton County, supra, that “the personal-comfort doctrine is no longer the law.” The Commission also found that “an alleged injury sustained while an employee is going to or from the bathroom, while no employment duties are being carried out, is not compen-sable under Act 796 of 1993.” This appeal followed.
I. Standard of Review and Relevant Legal Authority
When a workers’ compensation claim is denied, the substantial-evidence standard of review requires us to affirm the Commission if its opinion displays a substantial basis for denial of the relief sought by the worker. See McMillian v. United States Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997); see also Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991). In determining the sufficiency of the evidence to sustain the findings of the Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. See Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. See Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988).
II. “Employment Services”and the “Personal Comfort” Doctrine
Our analysis begins with Arkansas Code Annotated section 11-9-102(4)(A)(i) which defines a “compensable injury” as follows:
[a]n accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence; ....
The parties apparently agree that appellant suffered an accident involving harm to her body. Their dispute centers on whether appellant’s injury was one “arising out of and in the course of employment” in view of Arkansas Code Annotated section 11-9-102(4)(B), which prescribes what is not a “compensable injury.” Specifically, the statute reads:
(B) “Compensable injury” does not include:
(iii) Injury which was inflicted upon the employee at a time when employment services were not being performed ....
Thus, the critical inquiry is whether appellant was performing “employment services” within the meaning of the statute when she fell while returning to her work station after using the restroom.
The “employment services” requirement was added to the Arkansas Workers’ Compensation Law by Act 796 of 1993. The general rule precluding worker’s compensation benefits for acts performed by employees solely for their own benefit does not apply to acts of personal convenience or comfort; in this regard, the “personal comfort” doctrine — also sometimes referred to as the “personal convenience” exception — was developed to provide coverage when an employee is injured while talcing a brief pause from labors to minister to the various life necessities such as satisfying thirst, eating, discharging bodily wastes, protecting oneself from excessive heat or cold, or cleansing oneself. Although technically the employee’s actions do not contribute directly to the employer’s profits, compensation is justified under the “personal comfort” exception on the rationale that the employer indirectly benefits in the form of better work from a happy and rested worker, and on the theory that such a minor deviation does not take the employee out of the employment. Under the doctrine, acts that do not conflict with specific instructions and that are normally expected for an employee to indulge in under the conditions of the work, are considered incidental to employment duties within the course of employment. See 1A Larson, The Law of Workmen’s Compensation, § 21.10 (1990). See also 82 Am. Jur. 2d, Workers’ Compensation, § 283.
In Lytle v. Arkansas Trucking Services, 54 Ark. App. 73, 923 S.W.2d 292 (1996), our court quoted Professor Larson’s treatise concerning the “personal comfort” doctrine or exception as follows:
Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or unless, in some jurisdictions, the method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment.
Id. at 54 Ark. App. at 79, 923 S.W.2d at 295.
The boundaries of the personal-comfort exception in Arkansas were blurred when Act 796 became effective on July 1, 1993. See Ark. Code Ann. § 11-9-704(c)(3) (Repl. 1996). Act 796 also contains the following declaration of legislative intent at Ark. Code Ann. § 11-9-1001:
It is the specific intent of the Seventy-Ninth General Assembly to repeal, annul, and hold for naught all prior opinions or decisions of any administrative law judge, the Workers’ Compensation Commission, or courts of this state contrary to or in conflict with any provision of this act. In the future, if such things as the statute of limitations, the standard of review by the Workers’ Compensation Commission or courts, the extent to which any physical condition, injury, or disease should be excluded from or added to coverage by the law, or the scope of the workers’ compensation statutes need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers’ Compensation Commission, or the courts.
While our opinion in Lytle mentioned the “personal comfort” doctrine, it did so in the context of a claim that predated Act 796 (the Lytle worker was a truck driver who alleged an injury sustained on July 3, 1992). However, unlike pre-Act cases, post-Act cases require a determination that the worker was injured while performing “employment services,” a requirement that is unique to Arkansas.
We first addressed the meaning of “employment services” in, Olsten Kimberly Quality Care v. Pettey, 55 Ark. App. 343, 934 S.W.2d 956 (1996), a post-Act case involving a nurse’s assistant whose job required her to care for patients in their homes. Pettey was injured in an automobile accident while en route from her employer’s offices to the home of a patient. The Commission held that her accident constituted, a compensable injury within the meaning of Act 796. We agreed with the Commission’s reasoning that because “traveling was an inherent and necessary incident of the appellee’s required employment activity, the appellee was performing employment services while en route from her employer’s office to the patient’s home.” Id. at 55, 934 S.W.2d at 958. Our supreme court affirmed .the decision and approved the reasoning we employed, as indicated by the following excerpt from Justice Corbin’s opinion:
The fact that Appellee had yet to begin her nursing duties that day does not preclude our conclusion that she was nonetheless performing employment services at the time of the accident. Whether she was being directly compensated for her travel is not pertinent to our decision, as the facts of this case clearly demonstrate that travel was a necessary part of her employment. Further, such travel was clearly for the benefit of Appellant, as its business livelihood depended upon the in-home care of patients provided by its nursing assistants.
328 Ark. 381, 386-87, 944 S.W.2d 524, 527 (1997) (emphasis added).
Next, we affirmed the Commission after it decided that a worker was not entitled to compensation for an injury sustained when she fell on ice in her employer’s parking lot while walking from her car to begin work as a preschool day-care teacher. See Hightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159, 943 S.W.2d 608 (1997). Our decision in that case was premised on the going- and-coming rule which ordinarily denies compensation to an employee while he or she was traveling between home and the job based on the reasoning that employees with fixed hours and places of work are generally not considered to be in the course of their employment while traveling to and from work.
In Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), we affirmed the Commission’s decision denying benefits for injuries sustained to a worker who tripped over a rolled-up carpet while walking to a designated smoking area. Our opinion cited the supreme court’s decision in Olsten Kimberly Quality Care v. Pettey, supra, which affirmed our position that an employee performs “employment services” when the employee engages in the primary activity that he or she was hired to perform or in incidental activities that are inherently necessary for the performance of the primary activity. Regarding the claimant’s argument that the smoking break advanced the employer’s interest by allowing her to relax which, in turn, helped her to work more efficiently throughout the rest of her work shift, Judge Pittman wrote as follows:
We are not unsympathetic to this argument. Under former law, the definition of compensable injury did not include a strict requirement that the injury occur while the worker was performing employment services, and a claimant’s activities at the moment of injury were relevant only to the separate and broader question of whether the injury arose out of and in the course of the employment. ... It is clear that, under former law, appellant’s injury while en route to the break area would have been in the course of her employment pursuant to the personal-comfort doctrine. ... It may be true that the interests of both workers and employers would be better served by a more uniform application of an administrative remedy than they would be by the uncertainty inherent in a tort claim based on premises liability. Nevertheless, the legislature, rather than the courts, is empowered to declare public policy, and whether a law is good or bad, wise or unwise, is a question for the legislature, rather than the courts. ... In the present case, Act 796 of 1993 applies and, although appellant’s break may have indirectly advanced her employer’s interests, it was not inherently necessary for the performance of the job she was hired to do. Consequently, we hold that the Commission did not err in finding that appellant was not performing employment services when she was injured.
Id, at 138-39, 970 S.W.2d at 304 (citations omitted).
Our six-judge decision in Beaver v. Benton County, supra, also affirmed the Commission’s finding that a worker hired as an investigator of noncustodial parents for enforcement of child-support obligations was not performing employment services when she slipped on a wet floor and fell as she was approaching the buffet during a lunch break while attending a work-related seminar at the Holiday Inn Civic Center in Fort Smith. Judge Rogers’ majority opinion cited our decisions in Hightower, supra, and Lytle, supra, before adding the following statement:
However, the personal-comfort doctrine is no longer the law. Now, Act 796 of 1993 applies and, although the claimant’s break may have indirecdy advanced her employer’s interests, it was not inherently necessary for the performance of the job she was hired to do. Consequently, we held in Harding that the Commission did not err in finding that appellant was not performing employment services when she was injured.
We agree with the Commission that the fact that the appellee [employer] paid for the lunches is of no moment, and it was inconsequential that appellee encouraged the group to eat together when viewed against all of the other evidence. There is substantial evidence to support a finding that appellant was not advancing her employer’s interest when she was on her lunch break walking to the buffet.
Beaver v. Benton Co., 66 Ark. App. 156-57, 991 S.W.2d at 620-21 (emphasis added).
In a concurring opinion in Beaver, Judge Bird cited our decision in Crossett School District v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999), where we affirmed the Commission’s decision awarding benefits to a claimant who fell on ice in the employer’s parking lot while retrieving her reading glasses from her car. The claimant was a reading media resource teacher whose duties required her to work on three different elementary campuses under the supervision of the librarian. Shortly before the bell rang to begin the school day, she went to her assigned library. The librarian directed claimant to make some puppets for use as an instructional aid. The instructions for this project were printed in very fine print. When claimant discovered that she did not have her reading glasses, she obtained permission from her supervisor to call her husband to bring her glasses to her. Upon calling her husband, she learned that her glasses were in her automobile. After retrieving the glasses from her automobile located on the school parking lot, claimant slipped on ice and fell, breaking her leg.
We affirmed the Commission’s finding that appellee was “performing employment services” when walking from her car to the building after retrieving her glasses. Judge Crabtree set forth the following reasoning for our decision:
Arkansas Code Annotated section 11-9-102(5) (B) (iii) states that compensable injury does not include an “injury which was inflicted upon the employee at a time when employment services were not being performed. . . .” The question before this court is whether retrieving reading glasses required to complete a duty of employment is an employment service.
The appellant relies on Hightower v. Newark Public Sch. Sys., 57 Ark. App. 159, 943 S.W.2d 608 (1997), in which a day care worker slipped in the parking lot on her way to report to work. That case is distinguishable in that the claimant in Hightower was injured before she began her employment services that day. In this case, the appellee had reported to work, had supervised children before the bell rang beginning school, was given an assignment after reporting to the librarian, and injured herself in efforts taken to complete the assignment. Those facts constitute substantial evidence that appel-lee was performing employment services at the time of her injury.
Id. at 65-66, 984 S.W.2d at 834.
Judge Bird’s concurring opinion in Beaver, supra, also cited our decision in Fisher v. Poole Truck Line, 57 Ark. App. 268, 944 S.W.2d 853 (1997). In that case we reversed the Commission’s decision denying benefits, and held that a truck driver who was injured in an automobile accident while transporting the results of a mandatory urine test was performing employment services. Citing Crossett Sch. Dist. v. Fulton, supra, and Fisher v. Poole Truck Line, supra, Judge Bird emphasized that the employees in those cases were not “performing his or her assigned work tasks at the time of the injuries, yet the injuries were found to be compensable.” Beaver, 66 Ark. App. at 158, 991 S.W.2d at 721 (Bird, J., concurring).
We affirmed the Commission’s decision to deny benefits in Coble v. Modern Bus. Sys., 62 Ark. App. 26, 966 S.W.2d 938 (1998). That case involved a corporate trainer whose job required her to travel to branch locations throughout the company. While on assignment in Peoria, Illinois, the trainer decided to locate a shopping mall on her lunch break to purchase a pair of pantyhose because the pair she was wearing had developed a noticeable run. Upon arriving at the mall, the trainer noticed that she lacked time to complete her purchase and attempted to return to the office. While trying to turn around on a highway, the trainer’s vehicle was struck by a motor home, leaving her with multiple injuries, including a head injury that rendered her unable to work. Her employer contended that her claim was not compensable. The Commission agreed and denied benefits after finding that the trainer was not performing “employment services” at the time the accident occurred. In affirming that decision, then Chief Judge Robbins wrote:
In the instant case, there was evidence that Ms. Coble was not required to replace hosiery during the workday in the event of a run, nor was she even expected to do so. In addition, she admitted that she would not have made the trip if her trainee had not requested a lunch break; she was prepared to continue the training despite the condition of her pantyhose. On her break from work, she was free to do whatever she wanted to do, and it was solely her decision to proceed to the mall. Under these circumstances, we agree that her decision to drive to the mall was personal in nature, was not a requirement or essential component of the services she provided, and did not constitute “employment services” for purposes of the new Act.
Id. at 31-32, 966 S.W.2d at 941.
However, we reversed the Commission and remanded for benefits in Shults v. Pulaski County Sp. Sch. Dist., 63 Ark. App. 171, 976 S.W.2d 399 (1998). The worker in that case was a building custodian at an elementary school in Jacksonville, Arkansas, who fell while entering the building at the start of the workday, resulting in a fractured right knee cap. One of the worker’s duties upon arriving at work was to disarm the building security system. He fell while running into the building after observing that the alarm system had already been disarmed. The Commission denied benefits, reasoning that merely entering onto the premises of one’s employer was not sufficient to bring one within the employment services provision of Act 796. Judge Meads addressed that reasoning as follows:
Although that is a correct statement of the law, we disagree that appellant was “merely entering upon” the employer’s premises. Upon appellant’s arrival at Tolleson Elementary School, his first duty as building custodian was to check the alarm system. We believe this duty was an activity that carried out the employer’s purpose or advanced the employer’s interests, and therefore constitutes employment services. Whether or not the alarm system had already been disarmed on the day of appellant’s accident is not dispositive, because appellant did not know this until he stepped into the building to check the system for himself. Therefore, we find that appellant did sustain a compensable injury because he sustained an injury to his knee at a time when employment services were being performed.
Id., at 173-74, 976 S.W.2d at 401.
We also reversed the Commission and remanded for an award of benefits in Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999). There we held that a food-service worker was performing employment services when she suffered a fall during a paid break. The Commission denied benefits based on its view that the worker was not performing employment services because she was reaching for an apple to personally consume, and was not assisting student diners, or “otherwise benefitting the employer,” when she slipped and fell. We held that decision to be without a substantial basis, stating as follows:
We hold that appellant was performing employment services at the time she was injured based on the fact that appellant was paid for her fifteen-minute breaks and was required to assist student diners if the need arose. Appellant’s employer gleaned benefit from appellant being present and required to aid students on her break. . . . Unlike the employer in Harding, the University of Arkansas required Ray to be available to work during her break and paid her for the time she was on break, presumably because she was required to help students. The University of Arkansas was clearly benefitted by Ray’s being in the cafeteria and available for students during her paid break. The benefit was not tangential as in Harding, but was directly related to the job that Ray performed and for which she was paid. In distinguishing Harding, we specifically note that, unlike the break in Harding, the appellee employer in this case furnished food for its resting employees and paid them for the break to induce them to be available to serve students even during the break period.
Id. at 180-81, 990 S.W.2d at 560-61 (emphasis added).
Finally, the supreme court reversed and remanded our decision affirming the Commission’s denial of benefits in White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). White was a forklift driver whose duties primarily consisted of continually loading four veneer dryers with lumber. While on his way to smoke a cigarette during a work break, he slipped and fell on a step covered with algae as he attempted to step through a door located in front of a dryer. The Commission denied benefits after finding that White failed to prove that he was performing employment services at the time of his injury. We affirmed, holding that there was a substantial basis for the Commission’s decision to deny benefits on the finding that the worker was not performing employment services at the time of his injury and that the injury was not compensable under the personal-comfort doctrine.
On review by the Arkansas Supreme Court, the employer repeated its argument that the accident occurred when no employment services were being performed. Writing for a unanimous court, Justice Corbin addressed the employer’s position as follows:
In the present matter, Georgia-Pacific argues that White was on a personal break and not performing any employment services; thus, his injury is not compensable. This argument ignores the fact that someone had to monitor the dryers, whether it be White or a relief worker. Because there was no relief worker provided, White was forced to remain near his immediate work area in order to monitor those machines. If one of the dryers needed to be loaded or his supervisor needed him for some reason, White would have been forced to return to his forklift immediately. Georgia-Pacific’s argument also ignores the fact that White’s supervisor instructed him to take a break “when he could.”
We believe the present situation is analogous to the facts presented in Ray, 66 Ark. App. 177, 990 S.W.2d 558. In Ray, appellant was . . . entided to two unpaid thirty-minute breaks and two paid fifteen-minute breaks each day. During one of her paid breaks, appellant slipped and fell as she was getting a snack from the cafeteria for her own personal consumption. The Commission denied appellant’s claim for disability benefits after determining that she was not performing employment services at the time of her injury The court of appeals reversed the Commission’s decision, noting that White was paid for her fifteen-minute breaks and was required to assist student diners if the need arose. Based on those facts, the court of appeals held that the employer gleaned benefit from appellant being present and required to aid students on her break. Likewise, in this matter Georgia-Pacific also gleaned benefit from White remaining near his work station in order to monitor the progress of the dryers and immediately return to work if necessary.
While it is true that White was not loading the dryers at these times, he was in fact monitoring them, which was a required part of his job duties. White testified that it was necessary to watch the dryers and load them as the need to do so arose. It was this fact that necessitated the presence of a relief worker. Due to the fact that Georgia-Pacific failed to provide such relief staff, it was necessary for White to monitor the dryers, even it was time for one of his breaks.
Id., at 479-80, 6 S.W.3d at 100-02 (emphasis added).
III. Principles Emerging From “Employment Services” Decisions and the Dictum in Beaver v. Benton County
Our review of appellate decisions applying the “employment services” requirement of Act 796 demonstrates several principles. First, while the “personal comfort” or “personal convenience” cases involve disputes regarding whether the workers were performing “employment services” when their accidents occurred, the “employment services” requirement prescribed by Act 796 simply reflects the broader requirement that an accident must occur in the course of employment to be compensable. This involves deciding whether the accident occurred “within the time and space boundaries of the employment, when the employee is carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly.” White v. Georgia-Pacific Corp., 339 Ark. at 478, 6 S.W.3d at 100 (quoting Olsten v. Kimberly Quality Care v. Pettey, supra.)
Second, although it is true that “personal comfort” or “personal convenience” cases raise the “employment services” question, our court and the supreme court have held that workers are entitled to compensation benefits based on injuries from accidents that occurred when they are not performing actual job tasks, see Ray v. University of Arkansas, supra; Crossett School District v. Fulton, supra, and even when the accident occurred away from the employer’s premises, see Fisher v. Poole Truck Line, supra. The fact that a worker is injured while attempting to satisfy a personal need is not, per se, dispositive regarding whether she was performing employment services when the accident occurred. See Ray v. University of Arkansas, supra. Similarly, the fact that a worker is not directly compensated for the activity engaged in when an accident occurs for which workers’ compensation benefits are sought is not controlling as to whether the worker was performing employment services. See Olsten Kimberly Quality Care v. Pettey, supra. On the other hand, merely walking to and from one’s car, even on the employer’s premises, does not automatically constitute performing employment services. See Hightower v. Newark Pub. Sch. Sys., supra. In other words, whether a worker performs employment services and sustains an accident within the course of employment is a factual question which is to be resolved based upon the circumstances of each case, not on blanket notions of “personal comfort” or “personal convenience.”
The decisions on the employment services question also compel us to acknowledge that the statement in Beaver v. Benton County, supra, “the personal-comfort doctrine is no longer the law,” was unnecessary to our decision in that case. It is certainly understandable that the Commission quoted our statement; after all, it is part of the opinion in Beaver. Yet, as previously mentioned, the controlling inquiry is not whether an injury occurred while the worker was engaged in personal-comfort activity, per se. Thus, it is not conclusive that the accident occurred while the worker was returning from a personal errand to obtain reading glasses, going to get an apple to consume while on an authorized work break, or going to smoke. Rather, the critical inquiry is whether the activity advances the employer’s interest.
IV Factors Relevant to Determining the Employment Services Question
Whether a worker was performing employment services within the course of employment depends on the particular facts and circumstances of each case. The controlling test has not changed since our decision in Olsten Kimberly Quality Care v. Pettey, supra (stating the inquiry as whether the employee is “engaged in the primary activity that [s]he was hired to perform or in incidental activities that are inherently necessary for the performance of the primary activity.”) The difficulty arises from the fact that Act 796 does not define factors to guide employers, workers, their legal counsel, and the Commission in determining what constitutes “employment services.” That omission by the General Assembly may well have been intentional. After all, given the vagaries of industries, work settings, working conditions, and workers, any blanket definition would be either so imprecise as to be meaningless or unworkably rigid and narrow. Whatever “employment services” means must be determined within the context of individual cases, employments, and working relationships, not generalizations made devoid of practical working conditions.
Our decisions show that no single feature of the employment relationship is determinative of whether conduct falls within the meaning of “employment services.” However, the factors that may be relevant in reaching that determination include:
1. Whether the accident occurs at a time, place, or under circumstances that facilitate or advance the employer’s interests (Shults v. Pulaski Cty. Sp. Sch. Dist.; Fisher v. Poole Truck Line);
2. Whether the accident occurs when the employee is engaged in activity necessarily required in order to perform work (Olsten Kimberly Quality Care v. Pettey);
3. Whether the activity engaged in when the accident occurs is an expected part of the employment (Shults v. Pulaski Cty. Sp. Sch. Dist.);
4. Whether the activity constitutes an interruption or departure, known by or permitted by the employer, either temporally or spatially, from work activities (White v. Georgia-Pacific Corp.);
5. Whether the employee is compensated during the time that the activity occurs (Ray v. University of Arkansas);
6. Whether the employer expects the worker to cease or return from permitted non-work activity in order to advance some employment objective (Ray v. University of Arkansas).
As we said in Franklin v. Arkansas Kraft, Inc., 5 Ark. App. 264, 270, 635 S.W.2d 286, 289 (1982), regarding the factors bearing on. whether one is an independent contractor or an employee for purposes of determining workers’ compensation coverage, “[t]hese are not all the factors which may conceivably be considered in a given case, and it may not be necessary in some cases for the Commission to consider all of these factors.” 5 Ark. App 270, 635 S.W.2d 289. In some cases these and other factors will weigh more heavily than in others. It is the Commission’s responsibility as trier of fact to determine whether and to what degree these or other factors demonstrate that the accident occurred when the employee was engaged in the primary activity that he or she was hired to perform or in incidental activities inherently necessary for the performance of the primary activity. On appellate review, our duty will be to determine whether the Commission’s decision in a given case is supported by substantial evidence.
In setting forth these factors for analyzing disputed claims about whether employment services were performed, we are not engaging in judicial legislation in contravention of the legislative intent expressed at Ark. Code Ann. § 11-9-1001. We are neither liberalizing nor narrowing the meaning of “employment services.” Our task is to review the record to determine whether substantial evidence exists to support the Commission’s findings on that subject. But those findings must turn on facts and factors germane to the course-of-employment question. They cannot and should not be made in the abstract. It is patendy improper to summarily pronounce that all claims involving “personal comfort” or “personal convenience” accidents are outside the course of employment and, therefore, are noncompensable without regard for the underlying facts. By the same logic, it is improper to hold that all personal-comfort or personal-convenience accidents are within the course of employment and are compensable, no matter what the facts in individual cases may be. By now, it should be common knowledge that determining the relevant factors for finding the facts in disputed cases is a singularly judicial function rather than legislation.
When we apply the factors set forth above to the case at hand, we are compelled to hold that the Commission erred in concluding that appellant was not performing employment services when she fell on the stairs of the employer’s office building while returning to resume work for the employer after going to the restroom. The fact that Matlock was not performing a job task when she fell, while forcefully argued by the appellee and emphasized by the Commission in its opinion, is not controlling on whether she was within the course of the employment when she fell. Just as the teacher in Fulton was not performing a job task when she fell on ice while returning to resume work after retrieving her reading glasses from her automobile in the employer’s parking lot, Matlock was not performing a job task when she fell while returning to resume work after going to the restroom.
Nevertheless, Matlock was manifestly advancing the employer’s interest by returning to work after an authorized or permitted rest period. She had gone to a restroom provided by the employer on her floor, found it occupied, proceeded to another restroom provided by the employer on a nearby floor, and was returning to resume the employer’s work when the accident occurred that resulted in her injuries. Her conduct in returning to her desk was entirely consistent with the employer’s interest in advancing the work. Nothing about that conduct suggests an attempt to deviate from the employment, whether temporally (as in the duration of her stay in the restroom) or spatially (as in the proximity or remoteness in distance between appellant’s fall and her work station). There is no fact that even remotely supports an inference, let alone a factual finding or conclusion of law, that appellant was violating or undermining any interest of the employer by going to the restroom or by returning to her work station. Everything in the record before us indicates that Matlock was engaged in conduct permitted by the employer, if not specifically authorized by the employer, and that the employer provided restroom facilities on its premises.
We should not forget as judges what we know as intelligent humans. Restroom facilities are provided in work settings because eliminating bodily toxins and wastes are natural and ordinary biological processes. Employers provide restroom facilities for the'benefit of their customers, to be sure. But they also provide those facilities to accommodate their workers so as to avoid the work interruptions and delays that would certainly occur if workers were forced to leave the employment premises in order to find a public restroom at some distance from the work, their supervisors, and customers. The strict-construction requirement of Act 796 does not obligate the Commission and courts to ignore biology, anatomy, or human physiology. Nor does it require that we review workers’ compensation claims and appeals as simply a matter of determining whether the worker was performing a job task when the accident occurred.
We are also guided by Justice Corbin’s observation in White v. Georgia-Pacific Corp. concerning the lack of evidence to support the Commission’s decision. Justice Corbin wrote:
We cannot ignore the fact that what seems to be lacking the most in this case is the type of substantial evidence needed to support the Commission’s decision.
This court has previously addressed the issue of what constitutes substantial evidence in the context of a workers’ compensation case. In Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979), this court stated:
Substantial evidence has been defined as “evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture." Ford on Evidence, Vol. 4, § 549, page 2760. Substantial evidence has also been defined as “evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.”
Id. at 479-80, 6 S.W.3d at 101 (emphasis added, citations omitted) (quoting Aluminum Co. of America v. McClendon, 259 Ark. 675, 535 S.W.2d 832 (1976)).
In White, the supreme court mentioned that the employer presented no evidence to rebut the worker’s testimony on several critical points. In this case, the employer presented no testimony to rebut appellant’s testimony that (1) that she left her work to go to the restroom on the ninth floor about 9 o’clock a.m.; (2) that the restroom was occupied on the ninth floor; (3) that she went to the tenth floor to use the restroom; (4) that she slipped and fell on the stairs while returning from the tenth floor; (5) that there was no policy regarding whether and when she could or could not go to the restroom; (6) that she fell while “coming back to my work station”; and (7) that she reported her accident to her unit leader when she returned to her desk (“because my supervisor was not there yet, and she told me she thought that I should tell him and then fill out a form, an accident form”). There is nothing in the record to suggest that appellant’s restroom break was unauthorized, was taken for a purpose forbidden by the employer or contrary to the employer’s interests, or that it was a sham or pretext for what was really a deviation or departure from the employment.
The strict-construction mandate of Act 796 and the requirement that we view the evidence in a light most favorable to the Commission’s decision and uphold that decision if it is supported by a substantial basis for denying relief do not change the requirement that the Workers’ Compensation Commission must have, in fact, a substantial basis for denying a claim for benefits. As the supreme court stated when it reversed our decision affirming the Commission’s denial of benefits in Georgia-Pacific Corp., supra, the substantial-evidence test “is not satisfied by evidence which merely creates a suspicion . . . .” Based on the record in this case, we cannot say that there is substantial evidence supporting the Commission’s decision. The Commission’s opinion does not display a substantial basis for the denial of relief merely on the strength of a “finding” that an alleged injury sustained while an employee is going to or from a bathroom, while no employment duties are being carried out, is not compensable under Act 796 of 1993.
The rule of strict construction is not the enemy of common sense and does not require a literal interpretation leading to absurd consequences; such a reading should be discarded in favor of a more reasonable interpretation. Aeroquip, Inc. v. Tilley, 59 Ark. App. 163, 954 S.W.2d 305 (1997). This is especially true when the Commission’s “finding” derived from such a literal interpretation has no evidentiary basis. Accordingly, we reverse the Commission’s decision that appellant was not performing employment services when she fell while returning to her work station from the employer’s restroom. The case is remanded to the Commission for determination of benefits.
Hart, Bird, Neal, Crabtree, and Baker, JJ., agree.
Robbins, Vaught, and Roaf, JJ., dissent.
A review of the laws of other jurisdictions reveals that the personal-comfort doctrine is recognized as a general rule of workers’ compensation law, and acts of personal comfort and convenience are typically held as incidental to employment and compensable. For instance, New York courts recognize that an injury may be work-related even when the employee is not actively engaged in the duties of employment. See Kaplan v. Zodiac Watch Co., 232 N.E.2d 625 (1967). In resolving the issue of compensability, the New York courts determine whether the injury was in any way attributable to the environment into which the employee was brought into by the employment. See id. Also, Iowa courts consider the personal-comfort doctrine as satisfying a requirement that an injury occur within the course of employment. See Miedema v. Dial Corp., 551 N.W.2d 309 (1996). Once an injury is proven to occur within the course of employment, Iowa law requires that the claimant also prove that the injury arose out of the employment. See id. | [
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JOHN F. Stroud, Jr., Chief Judge.
Calvin Campbell was I convicted by a Pulaski County jury of residential burglary and ^battery in the first degree with regard to an incident that occurred on December 10, 1998; he was also charged with the rape of a nine-month-pregnant woman in connection with that incident, but the jury deadlocked on that charge, forcing the trial judge to declare a mistrial. In the second trial on the charge of rape, Campbell was convicted by a jury and sentenced to forty years in the Arkansas Department of Correction.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3 (j) of the Arkansas Rules of the Supreme Court and Court of Appeals, appellant’s counsel has filed a motion to withdraw on the grounds that the appeal is without merit. Counsel’s motion was accompanied by a brief purportedly referring to everything in the record that might arguably support an appeal, including a list of all rulings adverse to appellant made by the trial 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. The clerk of this court furnished appellant with a copy of his counsel’s brief and notified him of his right to file pro se points; appellant has not filed any points. For the reason explained below, we must return this case to appellant’s counsel to supplement the record.
In the notice of appeal, counsel for appellant designated “the entire record, including any audio or visual recordings, but excluding voir dire and opening and closing arguments, except for objections during same, as [the] record of appeal in this case.” Rule 4-30) (1) of the Rules of the Supreme Court provides:
Any motion by counsel for a defendant in a criminal or a juvenile delinquency case for permission to withdraw made after notice of appeal has been given shall be addressed to the Court, shall contain a statement of the reason for the request and shall be served upon the defendant personally by first-class mail. A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial 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. The abstract section of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the trial court.
Although this rule does not specifically require that the entire record be provided on appeal, we must also look to Anders, supra, for guidance. In that case, our United States Supreme Court held:
[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel —• then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. 'On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
386 U.S. at 744. (Emphasis added.)
In Smith v. Robbins, 528 U.S. 259 (2000), the Supreme Court’s most recent discussion regarding the procedures for withdrawing from a case that has no meritorious points to be raised on appeal, the Court held that the Anders framework is only one method of ensuring that indigents are afforded their Constitutional rights, and the states may craft procedures that are superior to, or at least as good as, the procedure outlined in Anders 528 U.S. at 276. However, the Supreme Court, in discussing the various approved approaches to requests for withdrawing from appeals having no merit, appears to say that all of the methods require that both the attorney and the appellate court review the entire record as a component of affording the criminal defendant his Constitutional rights. See, e.g., McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 (1988) (holding that the appellate court must satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client’s appeal and has correctly concluded that the appeal is frivolous).
We are unable to conduct “a full examination of all the proceedings to decide whether the case is wholly frivolous” as required by Anders without the complete record before us on appeal. Consequently, we return this case to appellant’s counsel to supplement the record on appeal to include the portions of the record originally omitted and, if necessary, to file a substitute brief that addresses any objections contained in those parts of the record.
Remanded to supplement record.
Pittman and Jennings, JJ., agree.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
CA CR 01-29
_S.W3d_
Court of Appeals of Arkansas Divisions IV and I
Opinion delivered August 29, 2001
William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender.
Mark Pryor, Att’y Gen., by: Lauren Heil, Ass’t Att’y Gen., for appellee.
John F. STROUD, Jr., Chief Judge.
Calvin Campbell was convicted by a Pulaski County jury of the rape of a nine- month-pregnant woman and sentenced to forty years in the Arkansas Department of Correction. This case was filed with this court pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court- of Appeals, and appellant’s counsel asked to be allowed to withdraw from the case on the ground that there was no merit to an appeal. On June 27, 2001, without determining whether or not there were meritorious issues for appeal, we remanded this case to supplement the record with the portions originally omitted by direction of appellant’s counsel in the notice of appeal. Appellant’s counsel filed a petition for rehearing and subsequently filed a motion to amend the petition for rehearing on the basis of changed circumstances. We deny the petition for rehearing.
In the petition for rehearing, appellant’s counsel argues that our order of remand to supplement the record to include all portions of the record is based upon an erroneous interpretation of the law and the Rules of the Arkánsas Supreme Court and Court of Appeals; that this court added a condition to Anders that is not required by that case or our state rules; and that inclusion in the record of portions of the trial omitted because no objections were raised would serve no practical purpose because reversal would be precluded by the failure to make an objection. Counsel also contends that other cases before the appellate courts in which Anders briefs were filed and decisions were issued excluded voir dire and opening and closing statements except for adverse objections made during those portions of the trial; that the record on appeal is that which is abstracted and that all matters not essential to the decision of the questions presented by appeal are to be omitted from the record; and that by requiring the entire record, this court is essentially adopting a “plain error” rule, which is not recognized in Arkansas, with limited exception. Additionally, the Attorney General filed a response to the original petition agreeing with appellant’s position that requiring transcriptions of portions of the trial where there were no adverse rulings would serve no “practical purpose,” would result in more costly appeals, and may cause public money to be spent unnecessarily.
Counsel for appellant contends that the record on appeal is that which is abstracted, see Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001), and that all matters not essential to the decision of the questions presented by appeal are to be omitted from the record. See Ark. R. App. P. — Civ. 6(c). It is true that these directives are applicable to appeals made based on the merits of the case. However, these rules are not applicable in Anders briefs, where the attorney contends that in spite of the appeal taken because his clients insists, there is no merit to the appeal and it is “wholly frivolous,” .that the attorney should be discharged, and that should be the end of the pursuit of the appellant’s rights unless he wants to file points on appeal pro se. This court has an entirely different obligation in a no-merit appeal. Instead of reviewing only the parts of the record that the lawyer puts before us, in a no-merit appeal we are bound to perform a full examination of all the proceedings to decide if the case is “wholly frivolous.”
Rule 4 — 3(j)(l) of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas governs the procedure for filing no-merit appeals, and that rule provides, in pertinent part:
A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial 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. The abstract section of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the trial court.
(Emphasis added.)
However, this rule is not the only framework we must follow in reviewing no-merit appeals; we are also bound by the United States Supreme Court case law of Anders, supra, and its progeny. This is made clear by our supreme court in Buckley v. State, 345 Ark. 570, 48 S.W.3d 534 (2001), in which it stated, “If appellant’s counsel intended to withdraw, he should have filed a brief and a motion to be relieved as counsel, pursuant to Anders v. California, 386 U.S. 738 (1967) and our Rules 4-30(1), stating that there is no merit to the appeal.” 345 Ark. at 571, _ S.W.3d at _. See also Johnson v. State, 345 Ark. 357, 45 S.W.3d 844 (2001). Therefore, although Rule 4-30 does not specifically require that the entire record be provided on appeal, we must also look to Anders, supra, and the subsequent case law for guidance.
In Anders, our United States Supreme Court held:
[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court, not counsel, then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
386 U.S. at 744. (Emphasis added.)
Counsel for appellant argues that requiring portions of the proceedings where no objections were made to he included in the record would serve no purpose because any such error would not be a basis for reversal if no objection was made. It is alleged that the practical effect of our ruling is to adopt the “plain error” rule in Anders briefs. This is incorrect.
We acknowledge that cases in which Anders briefs have been filed using the notice of appeal that designates less than the entire record on appeal have been previously decided by this court. However, the instant case is perfectly illustrative of the reason we must have the entire record before us to determine if indeed there are no meritorious issues and that the appeal would be “wholly frivolous.” In the motion to amend petition for rehearing on the basis of changed circumstances, appellant’s counsel states:
In order to avoid delay in the resolution of the case, in the event the Court denied the petition for rehearing and the supreme court denied relief, counsel asked the court reporter to prepare the missing portion of the record as soon as possible so that it could be filed expeditiously. Counsel received the supplement to the record from the circuit clerk on July 19, 2001.
Upon reviewing the supplement [of the previously omitted portions of the record], counsel has discovered that, despite Appellant’s specific instruction in the notice of appeal that the record include all portions of the voir dire in which objections were raised, the court reporter failed to include in the original record an objection that was decided adversely to Appellant during voir dire. Consequently, counsel is prepared to file the supplement and a substituted brief to address this adverse ruling in the Anders brief, in accordance with this Court’s directive.
(Emphasis added.)
Nevertheless, counsel still contends that the grounds asserted in her petition for rehearing are meritorious because our order constitutes unauthorized rulemaking. This argument has no merit. Clearly, as pointed out above, our supreme court demands that we look at Anders and our Rule 4-3 (j) together when reviewing no-merit appeals, and Anders likewise directs that the court determine whether a case is wholly frivolous after a “full examination of all the proceedings.” 386 U.S. at 744.
Although not the basis for our remand, we must also note that the notice of appeal in the instant case does not even comply with our Rule 4-3(j)(l). The notice of appeal directs the court reporter to exclude “voir dire and opening and closing arguments, except for objections during same,” while the rule is not limited solely to “objections.” The rule directs that the abstract shall contain “all rulings adverse to the defendant.” The prior sentence makes clear that this includes not only objections but also motions and requests.
In the present case, the omission of this adverse ruling against appellant during voir dire, discovered only after appellant’s counsel was ordered by this court to obtain the entire record of the proceedings in appellant’s case, is the perfect example of why the entire record is required to be presented to the court for review with Anders briefs. Anders requires that the appellate courts make a full examination of all proceedings in order to make a determination of whether the case is wholly frivolous. This directive ensures that there are indeed no issues that would support an appeal on the merits of the case before allowing an attorney to withdraw from representation of a criminal defendant. This crucial obligation can neither be delegated to the attorneys, nor can it be left to court reporters to determine whether an objection, motion, or request was decided adversely to the defendant. As to the position stated by the Attorney General, if compliance with the law as established by the United States Supreme Court to protect the rights of indigent defendants in criminal proceedings requires the expenditure of more public funds to provide a full record to this court, then so be it. For these reasons, the motion for rehearing is denied.
Motion for rehearing is denied.
Hart, Jennings, Neal, and Vaught, JJ., agree.
Pittman, J., concurs. | [
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Olly Neal, Judge.
Appellant Keziah G. Watts appeals from the trial court’s decision granting appellee summary judgment in her medical malpractice action. In her complaint, appellant alleged that appellee’s failure to diagnose her broken hip for three days after she was admitted to the hospital caused a worsening of her injury, additional pain and suffering, and additional medical expenses. After a hearing on appellee’s motion for summary judgment, the trial court concluded that appellant “failed to present any evidence by a qualified medical expert that the delay, if any, was the proximate cause of damage to the plaintiff. Consequently the defendant has failed to meet proof with proof so as to create a genuine issue of material fact.” From that ruling comes this appeal. We reverse.
For the most part, the facts of this case are accepted by both parties. Appellant alleges that on Saturday, October 19, 1996, she fell in her home and that after the fall she was unable to walk or stand. Appellant was transported to the appellee’s emergency room where she was seen by Dr. Steve Nelson. At the insistence of her son-in-law, appellant was admitted from the emergency room to the hospital. Appellant never underwent a physical examination to determine whether she had a broken hip.
Appellant was to be released on Tuesday, October 22, 1996. As her daughter was helping her to put on her clothes, appellant “yelped” in pain. Appellant told her daughter that her leg was hurting and had been hurting since she was admitted to the hospital. An x-ray was subsequently taken that showed appellant had suffered a broken hip. Appellant was given her first dose of pain medication on October 22, but had to wait approximately three days for surgery because she was taking Coumadin, a blood thinner.
In her complaint appellant alleged that appellee’s failure to timely diagnose her broken hip caused damages including medical expenses, injuries, pain and suffering; scars and disfigurement; and care-taking expenses. Appellee subsequently moved for a summary judgment, contending that appellant had failed to provide any expert testimony to prove that any breach of the applicable standards of care by any of appellee’s employees was a proximate cause of injuries suffered by appellant. In support of its motion, appellee submitted the deposition testimony of Dr. Gary Edwards. Dr. Edwards testified that assuming that the fracture occurred prior to her admittance to the hospital, the delay from the evening of the 19th until the 22nd when the x-ray was taken, did not in any way cause her fracture to be worse than it would have been if it had been discovered in the emergency room, and that he was not aware of any damages that she suffered or sustained as a result of the delay. Dr. Edwards also testified appellant did not complain to him of any pain prior to the taking of the x-ray.
Appellee also presented the affidavit testimony of Dr. Nils K. Axelsen, an orthopedic surgeon, who stated that there are occasions where a broken hip does not produce pain. Dr. Axelsen stated that it is not unusual for a patient who has suffered the type of injury as appellant not to experience any initial pain. Notably, the court supported its ruling with Dr. Axelsen’s statement that a review of appellant’s chart showed no indication that appellant complained of hip or groin pain during her first few days of hospitalization.
Appellant offered her daughter’s testimony that appellant told her that her leg had been hurting since the 19th. Further, in deposition testimony, Dr. Steve Nelson testified “...more likely than not that it would be painful... I would think that generally hip fractures are painful.”
Summary judgment is appropriate when there is no genuine question of material fact to be litigated. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 660 (1997). Once the moving party established a prima facie entidement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet “proof with proof’ and demonstrate a genuine issue of material fact. Sanders v. Bailey Community Human Services Public Facilities Board, 330 Ark. 675, 956 S.W.2d 187 (1997). On appellate review, we determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. Keller v. Safeco Ins. Co. of Am., 317 Ark. 308, 877 S.W.2d 90 (1994). Any doubts and inferences must be resolved against the moving party. Kelly v. National Union Fire Ins. Co., 321 Ark. 329, 937 S.W.2d 660 (1997).
The Arkansas Medical Malpractice Act is codified at Ark. Code Ann. §§ 16-114-201 through 209 (1987). In Blankenship v. Burnett, 304 Ark. 469, 803 S.W.2d 539 (1991), our supreme court stated:
Section 16-114-206(a) specifies that in any action for medical injury, the plaintiff must prove the applicable standard of care; that the medical provider failed to act in accordance with that standard; and that such failure was a proximate cause of the plaintiffs injuries.
The statute implements the traditional tort standard of requiring proof that “but for” the tortfeasor’s negligence, the plaintiff s injury or death would not have occurred.
We have held that the proof required to survive a motion for summary judgment in a medical malpractice case must be in the form of expert testimony. Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48 (1995). It is simply not enough for an expert to opine that there was negligence that was the proximate cause of the alleged damages. Aetna Casualty & Sur. Co. v. Pilcher, 244 Ark. 11, 424 S.W.2d 181 (1968). The opinion must be stated within a reasonable degree of medical certainty or probability. Montgomery v. Butler, 309 Ark. 491, 834 S.W.2d 148 (1992).
Our courts have also held, however, that expert testimony is not necessary per se in every medical malpractice case. Our law is well-settled that expert testimony is required only when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, when the applicable standard of care is not a matter of common knowledge, and when the jury must have the assistance of experts to decide the issue of negligence. Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995) (citing Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987)). To emphasize that expert testimony is not required in every medical-malpractice case per se, the court in Hasse v. Starnes, M.D., 323 Ark. 263, 915 S.W.2d 675 (1996) repeated a statement from Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970), that was quoted in Davis v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972):
The necessity for the introduction of expert medical testimony in malpractice cases was exhaustively considered in Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944). There we held that expert testimony is not required when the asserted negligence lies within the comprehension of a jury of laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it. On the other hand, when the applicable standard of care is not a matter of common knowledge the jury must have the assistance of expert witnesses in coming to a conclusion upon the issue of negligence.
Id. at 926, 481 S.W.2d 712-13.
In this case, expert testimony is not needed to support appellant’s argument that she suffered pain from October 19 to October 22. Here all the experts presented by appellee testified that appellant’s injury was not worsened by the delay. Drs. Edwards and Axelsen testified that appellant’s chart did not indicate that she complained of any pain prior to October 22, but that claim is refuted by the hospital record. The abstract reveals that on October 21, appellant told someone that her left leg and foot were still sore, indicating that she stated that they were sore previously. Moreover, Dr. Axelsen’s statement that injuries of the type suffered by appellant do not always cause initial pain does not support the conclusion that appellant did not suffer any pain. Dr. Nelson testified: “...more likely than not that it would be painful... I would think that usually hip fractures are painful.” In fact there was no reason for appellant to bring an expert to say that her type of injury sometimes causes initial pain because the opinions of Dr. Nelson and Dr. Axelsen state just that.
The evidence in support of this judgment decision comes down to the doctors saying no damage was caused by the three-day wait; appellant stating that she was in pain; her medical records providing some support for this claim; and the opinions of Dr. Nelson and Dr. Axelsen that these types of injuries generally cause pain. We hold a fact question was presented by this evidence, and reverse and remand.
Reversed and remanded.
Jennings, Robbins and Baker, JJ., agree.
Pittman, J., concurs.
Bird, J., dissents. | [
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Karen R. Baker, Judge.
The appellant, James W Berry, was convicted of felony driving while intoxicated in violation of Ark. Code Ann. § 5-65-103 (Repl. 1997). At the conclusion of a bench trial, the circuit court sentenced appellant to twelve months in the Arkansas Department of Correction, fined him $1,000, required him to pay court costs of $300, and suspended his driver’s license for four years. Appellant raises two points on appeal. First, appellant argues that Officer King of the Pangburn Police Department was not authorized to detain him outside the officer’s jurisdiction and doing so amounted to an illegal arrest. Second, appellant argues that enhancing punishment for the offense of driving under the influence of intoxicants by reference to prior convictions before the effective date of the enhancement statute, as applied to appellant’s facts, violates the constitutional prohibition against ex post Jacto law. We affirm.
On September 11, 1999, Officer Robbie King of the Pang-burn Police Department was traveling on State Highway 16, returning to his department in Pangburn. Approximately one mile out of Searcy, and ten to twelve miles outside of Pangburn, Officer King arrived upon an accident. A car, which had apparently lost control, struck a tree, and was in the ditch on the side of the road. When Officer King stopped to investigate, he realized it was his sister’s car, and he immediately called for assistance from the White County Sheriffs Department. Deputy John Smith of the White County Sheriffs Department arrived, and he called dispatch to send Trooper Ray Ervin of the Arkansas State Police. A wrecker was called to remove the vehicle. During removal of the vehicle, the wrecker completely blocked the roadway. Trooper Ervin asked Deputy Smith and Officer King to assist with traffic control by setting up a temporary road block at each end of the accident scene while the roadway was obstructed. As appellant approached the road block, Officer King waved his arms and yelled for appellant to stop. When appellant finally stopped the vehicle, Officer King advised him of the road block.
During the encounter, Officer King noticed the smell of intoxicants and saw a beer can on the passenger seat. Officer King detained appellant and radioed Deputy Smith to inform him of the situation. Deputy Smith asked Officer King to hold the driver until he could get to that end of the accident and requested that Officer King check his sobriety. Upon noticing appellant’s bloodshot eyes and the manner in which he was staggering, Officer King performed a breath test on appellant and waited for Deputy Smith. Officer King’s involvement with appellant ended when Deputy Smith arrived and assumed responsibility. After the wrecker cleared the roadway and another wrecker service picked up appellant’s car, Officer King returned to Pangburn. Officer King testified that his department had a written policy allowing officers to assist other departments outside Pangburn’s jurisdiction with a supervisor’s authorization. Officer King further testified that he was the supervisor on duty that evening.
Appellant was charged with driving while intoxicated in violation of Ark. Code Ann. § 5-65-103. The State proved that appellant had three prior DWI convictions on November 19, 1994; April 16, 1995; and August 29, 1999, to enhance the punishment for the September 11, 1999, DWI offense, making it a felony. As a result, appellant was convicted of felony driving while intoxicated on June 12, 2000.
It is unclear what remedy appellant seeks on appeal. Appellant merely requests that this court find that “the detention of the appellant by Officer King amounted to an illegal arrest or, in the alternative, that Act 1077 as applied to the appellant violated the ex post facto law.” Even assuming that appellant is correct in that he was illegally arrested, an invalid arrest may call for the suppression of a confession or other evidence, but it does not discharge a defendant from the responsibility of the offense. Urquhart v. State, 30 Ark. App. 63, 782 S.W.2d 591 (1990) (citing Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989)), see also Lamb v. State, 21 Ark. App. 111, 730 S.W.2d 252 (1987) (affirming defendant’s conviction of driving while intoxicated where an officer had the authority to issue a citation even though outside her jurisdiction). Appellant makes no argument to this court which would support overturning his conviction based upon an allegedly illegal arrest. Thus, we do not reach the merits of appellant’s first point because appellant failed to request any form of proper relief. Cf. Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993) (affirming appellant’s conviction where appellant improperly requested a mistrial rather than admonition to the jury).
Appellant’s second point is equally unavailing. Appellant argues that Ark. Code Ann. § 5-65-111 (b)(3) (Supp. 1999), which allows the State to use prior DWI convictions within five years of a subsequent DWI arrest to enhance the penalty, as applied to appellant’s facts, violates the prohibition against ex post facto law. For enhancement purposes, the prior law only allowed the State to consider DWI convictions from the past three years. Ark. Code Ann. § 5-65-111 (b)(3) (Repl. 1997). The current revision of Ark. Code Ann. § 5-65-111 (b)(3) allows the State to consider DWI convictions over the previous five years. Pursuant to the statute, the State used appellant’s prior convictions on November 19, 1994; April 16, 1995; and August 29, 1999, to enhance the punishment for the September 11, 1999, DWI offense. The prior convictions resulted in a felony for appellant’s fourth offense of driving while intoxicated.
Appellant contends that the State is attempting to revive the previous convictions of November 19, 1994, and April 16, 1995, and that they had expired under the old law and cannot be revived or brought back to life to be used against appellant by the State once these convictions were gone. However, our supreme court has addressed a similar issue in Sims v. State, 262 Ark. 288, 556 S.W.2d 141 (1977). In Sims, the court held that enhancement of punishment for the offense of driving while under the influence of intoxicants by reference to prior convictions occurring before the sentence enhancement statute was effective did not involve prohibited application of ex post facto law. Id. In Sims, the defendant had been convicted of DWI on July 9, 1974, and November 2, 1974. Id. at 288, 262 S.W.2d at 141-42. He was charged with DWI again on March 26, 1976, and pursuant to Act 931 of 1975, he was charged as a third-time violator. Id. The defendant argued that because the two prior offenses were committed before the effective date of the Act, enhancing the penalty was an ex post facto law as to him. Id. at 142, 262 S.W.2d at 289. The court rejected the argument, noting that the offense for which he was being charged occurred after the effective date of the Act and that the Act gave notice that any future offense would subject offenders to increased penalties. Id.
The same is true in the case at hand. Appellant was charged with his fourth DWI on September 11, 1999. The effective date of the amendment to the statute was July 30, 1999. Therefore, appellant had notice that any future offense would subject him to increased penalties, and the enhancement of penalties in this case for appellant’s fourth DWI offense did not violate the prohibition against ex post facto law.
Affirmed.
Robbins and Vaught, JJ., agree. | [
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Karen R. BAKER, Judge.
Appellant, Marilyn Sue McGrew Moore, has appealed a Crawford County Circuit Court order granting a motion to dismiss on the basis that the circuit court lacked jurisdiction over a joint petition approved by the Administrative Law Judge. Appellant has five arguments on appeal. First, appellant argues that the trial court erred in granting the appellee’s motion to dismiss because it is the only forum that has jurisdiction over the matter. Second, appellant argues this action was appropriately filed as an action for breach of contract. Third, appellant argues the trial court erred in dismissing this action because the existence of a contract is a question of fact. Fourth, appellant argues that the trial court erred in dismissing this action because she is entitled to relief under Ark. Code Ann. § 23-79-208 (Repl. 1999). Fifth, appellant argues that in the event the court finds that the plaintiff cannot proceed under Ark. Code Ann. § 23-79-208, she is still entitled to recover an attorney’s fee under Ark. Code Ann. § 16-22-308. We affirm.
Appellant was employed by Health Management Associates (HMA) on May 2, 1997, when she sustained an injury. As a result, appellant incurred two surgeries, one on the lower back and one to the neck. The Workers’ Compensation Commission required that appellee, Wausau Insurance Company, as the workers’ compensation carrier for HMA, pay appellant the benefits she was entitled. Subsequently, the two parties entered into a joint petition agreement.
The joint petition agreement stated that appellant was to receive a sum of $25,000, attorney’s fees of $6,000, and all related and authorized medical expenses. The Administrative Law Judge approved the petition, and both the award and the attorney’s fee were paid directly to appellant. However, the medical expenses were not paid, allegedly because the bills were misplaced by appellee.
Appellant then brought this action in Crawford County Circuit Court for breach of contract. Appellee responded by filing a motion to dismiss arguing the circuit court lacked jurisdiction. The motion was granted and this appeal followed.
Appellant first argues that the trial court erred in granting the appellee’s motion to dismiss because it is the only forum that has jurisdiction over this matter. She is incorrect. Arkansas
Code Annotated section 11-9-805 (b)(1) and (2) (R.epl. 1996) states that, “[i]f the commission decides it is for the best interests of the claimant that a final award be made, it may order an award that shall be final as to the rights of all parties to the petition. Thereafter, the commission shall not have jurisdiction over any claim for the same injury or any results arising from it.” Thus, it is only when a final award is made by the Commission in approving a joint petition that the Commission loses its jurisdiction over “any claim for the same injury or any results arising from it.” Stratton v. Death & Permanent Total Disability Trust Fund, 28 Ark. App. 86, 770 S.W.2d 678 (1989) (citing Sayre v. Second Injury Fund, 12 Ark. App. 238, 674 S.W.2d 941 (1984)). Our supreme court in Jacob Hartz Seed Co. v. Thomas, 253 Ark. 176, 485 S.W.2d 200 (1972) noted that,
[t]he necessity for extreme caution in approving such settlements . . . lies in the fact that any award based thereon finally concludes all rights of the parties, even foreclosing any right of appeal from the order of approval. This is the only procedure under our act which leaves the claimant without any further remedy, regardless of subsequent developments.
253 Ark. at 179, 485 S.W.2d at 202. (Emphasis supplied.)
The language quoted above makes it clear that the finality of a joint petition settlement is viewed from the claimant’s standpoint, and it is the claimant’s right to proceed further that is extinguished. Stratton, supra. However, there must be finality before claimant’s right to proceed is extinguished and the jurisdiction of the Commission ends.
The Commission has continuing jurisdiction over orders which are not final, because there is not a specific award. To be final, the order must dismiss the parties from the court, discharge them from the action, or conclude their rights as to the subject matter of the controversy. American Mut. Ins. Co. v. Argonaut Ins. Co., 33 Ark. App. 82, 801 S.W.2d 55 (1991). When the Commission makes findings only with respect to the issue of causation without determining questions relating to the amount and duration of compensation, such as healing period, disability, or reasonable medical expenses, the order is not final. St. Paul Ins. Co. v. Desota, 30 Ark. App. 45, 782 S.W.2d 374 (1990). Our supreme court has further pointed out that an order “which establishes the plaintiffs right to recover, but leaves for future determination the exact amount of his recovery, is not final.” Farms v. Jones, 28 Ark. App. 90, 770 S.W.2d 680 (1989) (quoting Ark. State Highway Comm. v. Kesner, 239 Ark. 270, 278, 388 S.W.2d 905, 911 (1965)). In the case at hand, the order required appellee to pay “outstanding medical bills related to the lumbar and cervical injuries and the foot up to the date of this joint petition.” The order failed to provide an amount that appellant was to receive; thus, it was not a final order. In this situation, the Commission retains jurisdiction for any further proceedings necessary to achieve finality.
Furthermore, this court discussed the purpose of Ark. Code Ann. § 11-9-805 stating that,
[cjonceding entirely that one avowed and worthwhile objective of Section 19(1) is to protect the claimant in joint petition settlements, it should be noted that there is another objection of Section 19, also to be valued, and that is the achieving of finality where the parties have reached a fair compromise-hence, the proviso that the Commission will have no further jurisdiction.
Bradford v. Arkansas State Hospital, 270 Ark. 99, 105-06, 603 S.W.2d 896, 900 (Ark. App. 1980). In this case, appellant and appellee entered into a joint petition, which was subsequently approved by the Administrative Law Judge. However, finality was not achieved because the joint petition did not specify what medical expenses were to be paid, nor did it set out a specific award relating to those expenses.
We hold that the circuit court, in this instance, correctly concluded that it is without jurisdiction. Our supreme court in Baldwin v. Club Products Co., 302 Ark. 404, 790 S.W.2d 166 (1990), held that the circuit court did not have jurisdiction to determine what was a “reasonable and necessary” expense pursuant to an order or award of the Commission. In Baldwin, the parties could not resolve a dispute over whether the employer and its carrier in a workers’ compensation case were required to pay certain bills under an earlier order requiring it to pay “any and all reasonable and necessary medical and related expenses.” 302 Ark. at 405, 790 S.W.2d at 167. The claimant filed a motion to enforce the Commission’s order in circuit court. 302 Ark. at 406, 790 S.W.2d at 167. The circuit court ruled that it was without jurisdiction to settle the dispute and the Arkansas Supreme Court affirmed. Id. Here, just as in Baldwin, the circuit court correctly determined that it did not have jurisdiction.
Because we hold the circuit court was correct in finding that it lacked jurisdiction, we do not address appellant’s remaining arguments.
Affirmed.
Jennings and Robbins, JJ., agree. | [
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John Mauzy Pittman, Judge.
Appellant Patrick Miller appeals from the trial court’s denial of his motion to set aside a default judgment. He makes several arguments, none of which have merit. We therefore affirm.
Patrick Miller was president and a shareholder of Diamond Lakes Marine, Inc. Diamond Lakes was engaged in the business of selling boats and other marine equipment in Garland County. Its inventory financing was provided by appellee Transamerica Commercial Finance Corporation by virtue of a 1997 inventory security agreement. The agreement provided that appellee would advance money to Diamond Lakes to acquire inventory and that Diamond Lakes would grant appellee a security interest in the inventory and other items.
On the same day that the corporation executed the inventory security agreement, appellant and his wife, Terri Miller, executed a guaranty contract that permitted appellee to proceed against them should Diamond Lakes default on its obligations. Such a default occurred in 1999, causing appellee to file suit against the Millers, Diamond Lakes, and another marine dealer, North Malvern Marine. The complaint sought repossession of collateral from Diamond Lakes and North Malvern Marine and judgment for $2,809,907.33 against the Millers on their guaranty agreement. As an exhibit to the complaint, appellee appended an exhibit labeled “Outstandings,” consisting of approximately 450 inventory items totaling over $2.6 million in value. Appellee also filed, contemporaneously with the complaint, the affidavit of its regional manager Bryan Alsobrooks, the person responsible for the Diamond Lakes account. Alsobrooks stated that Diamond Lakes was in default in the amount of $2,809,907.33, and was in possession of collateral believed to have a value of $2,607,881.52.
Within ten days of the lawsuit being filed, Diamond Lakes filed for bankruptcy. The Millers never answered the complaint. As a result, a default judgment was entered against them on July 26, 1999, for $2,701,708.72 (certain credits were allowed). On September 16, 1999, Patrick Miller moved to set aside the default judgment. The trial court refused to do so, and Miller appeals from that ruling.
When a party against whom a judgment for affirmative relief is sought fails to plead or otherwise defend as provided by the Rules of Civil Procedure, a default judgment may be entered against him. See Ark. R. Civ. P. 55(a). Default judgments are not favorites of the law and should be avoided when possible. B&F Engineering v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). When a trial judge denies a motion to set aside a default judgment, we must determine on appeal whether the trial judge abused his discretion. See id.
Appellant argues first that the default judgment entered against him is void because appellee failed to serve him with the summons and complaint. He bases his argument on an affidavit in which he stated that he had no recollection of being served and did not believe he was personally served. Default judgments rendered without proper service are judgments rendered without jurisdiction, and are therefore void. See Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990); Wilburn v. Keenan Cos., Inc., 298 Ark. 461, 768 S.W.2d 531 (1989).
We hold that there was sufficient evidence in this case to prove that appellant was served. Appellant did not appear and testify at the hearing on his motion, but the deputy who served him did, and he testified as follows:
Q.: Do you know a gentleman named Patrick Miller?
A.: Yes, I do.
Q.: I’m showing you from the Court file here a document that purports to be a summons to Patrick Miller. Could you tell me if you’ve seen this document before?
A.: Yes, I have.
Q.: Okay, and what were the circumstances?
A.: I served Mr. Patrick Miller a copy of this on the 22nd of June at 10:40 a.m. and I have signed it.
Q.: Okay, and do you recall doing this?
A.: Yes, sir, I do.
Q.: Okay, and was it just this one page or what was with this?
A.: It was a Restraining Order...
Q.: Was there a complaint with it?
A.: ... and a complaint. Yes, sir.
The deputy’s testimony that he served the complaint and summons on Miller was unequivocal. Whether his testimony was believable was a matter for the trial judge to decide. The judge obviously found the deputy to be a credible witness, and we defer to his superior ability in that regard. See Eagle Bank & Trust Co. v. Dixon, 70 Ark. App. 146, 15 S.W.3d 695 (2000). Appellant attempts to reduce the impact of the deputy’s testimony by pointing out that, on cross-examination, he stated that he had served appellant so many times that he could not identify each and every instance. That testimony does little to impeach the deputy’s precise recollection of his service upon appellant in this instance.
Appellant also contends that the default judgment should have been set aside because appellee failed to serve him with Bryan Alsobrooks’s affidavit. It is true that the affidavit was not served on appellant, though it should have been, pursuant to Ark. R. Civ. P. 5(a). However, appellant is unable to show how appellee’s failure to serve him with this affidavit justifies relief from the operation of the default judgment. He points to nothing in Ark. R. Civ. P. 55 or Arkansas case law to the effect that failure of a plaintiff to serve any papers filed after the complaint requires a default judgment to be set aside. Additionally, there is nothing in the affidavit that could not have been gleaned from the complaint that was served on appellant on June 22. The affidavit, like the complaint, stated that Diamond Lakes was in default in the amount of $2,809,907.33, and both referred to the possibility that a deficiency judgment could exist upon the sale of collateral. Thus, appellant has not shown how appellee’s failure to serve the affidavit on him affected the entry of the default judgment. We do not consider assignments of error that are unsupported by convincing authority or argument. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).
The sufficiency of the Alsobrooks affidavit, as proof of damages, is also challenged by appellant. Generally, a default judgment establishes liability but not the extent of damages. See Tharp v. Smith, 326 Ark. 260, 930 S.W.2d 350 (1996). Thus, proof must be presented as to the amount of damages. Id. However, there is an exception to the proof requirement in a suit on an account where a verified statement of the account is filed with the complaint. Id.; Ark. Code Ann. § 16-45-104 (Repl. 1999). Here, appellee filed a statement listing the outstanding inventory items and an affidavit certifying the amount of the debt. In a suit on an account, the affidavit of the plaintiff, duly taken and certified, that the account is just and correct shall be sufficient to establish the account unless the defendant denies under oath the correctness of the account, in which case the plaintiff must prove the account by other evidence. See Ark. Code Ann. § 16-45-104 (Repl. 1999). Appellant did not deny the correctness of appellee’s verification (although he did state in an affidavit that the judgment against him was “grossly inflated”); therefore, the verification was sufficient to support the default judgment award.
Appellant further complains that the affidavit was insufficient because it did not state the amount of a possible deficiency judgment. This is incorrect because the affidavit reflects an approximate $200,000 difference between the amount owed and the value of collateral. Appellant also points to the fact that, while substantial collateral existed that could reduce the total amount owed, judgment was entered against him for over $2,700,000. First, there is evidence that appellant’s liability on the judgment will be reduced by the sale of collateral. Appellee’s attorney assured the trial judge of this in open court. In fact, a partial satisfaction of judgment was entered on April 11, 2000, as the result of the sale of collateral, and the balance due was reduced to $1,039,163.63. Secondly, the guaranty agreement executed by appellant permits appellee to seek judgment against him for the full amount of the debt, irrespective of any attempts to realize on collateral.
Next, we address appellant’s argument that he is entitled to the benefit of the automatic stay obtained by Diamond Lakes in its bankruptcy action. Diamond Lakes filed its petition for Chapter 11 bankruptcy (later converted to Chapter 7) on June 30, 1999. Thereafter, a stay was imposed, prohibiting creditors from the continuation of any judicial proceedings “against the debtor.” See 11 U.S.C. § 362 (1994 and Supp. V 1999). Appellant claims that appellee should have obtained relief from the stay before obtaining a default judgment against him. However, appellant was not the debtor in the bankruptcy action, so the stay was not applicable to an action against him. We have held that an automatic stay in bankruptcy is not for the benefit of a guarantor. See Aluminum Co. of America v. Higgins, 5 Ark. App. 296, 635 S.W.2d 290 (1982); Van Balen v. Peoples Bank & Trust Co., 3 Ark. App. 243, 626 S.W.2d 205 (1981).
Appellant’s next argument is that an answer filed by Diamond Lakes inured to his benefit. Diamond Lakes, despite its bankruptcy filing, remained a named defendant in the circuit court case. On September 16, 1999, the same day that appellant moved to set aside the default judgment, Diamond Lakes filed an answer denying the allegations in appellee’s complaint. Appellant now hopes to take advantage of the common-defense doctrine, which provides that a timely answer filed by a co-defendant inures to the benefit of a defaulting co-defendant. See Sutter v. Payne, 337 Ark. 330, 989 S.W.2d 887 (1999).
We hold that the common-defense doctrine is not applicable in this case because appellant did not show that his co-defendant’s answer was timely. Diamond Lakes’s answer was filed approximately eighty-six days after Diamond Lakes was served, making it untimely under our Rules of Civil Procedure, as the trial judge specifically found. The common defense doctrine applies when a co-defendant files a timely answer. Although federal law provides bankruptcy trustees an extension of time to file pleadings on behalf of a debtor, see 11 U.S.C. § 108(b) (1994), we are unable to determine, given the record before us, if Diamond Lakes met the requirements of that statute. The issue was not developed below, nor does appellant raise the issue on appeal. Failure to make an argument on appeal constitutes a waiver of that argument. Seay v. Wildlife Farms, Inc., 342 Ark. 503, 29 S.W.3d 711 (2000). Further, when an argument is not raised in the trial court, it is not considered on appeal. Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996).
Finally, appellant argues that the default judgment should have been set aside on the grounds of inadvertence and excusable neglect. Fie claims that attorney David Goldman, who represented Diamond Lakes, represented him also, and that he relied on Goldman to protect his interests in the case. Goldman’s failure to do so, he says, constituted excusable neglect. As proof of his contention, appellant refers to a bankruptcy court order, which mentions that Goldman had an unspecified conflict of interest in representing Diamond Lakes. Appellant cannot show how Goldman’s conflict concerning Diamond Lakes prevented him from filing a timely answer on behalf of appellant. Appellant also refers to a comment made by the bankruptcy judge from the bench that Goldman was negligent in his representation of appellant. We do not consider that comment because it is not in the record before us. The only relevant matter that appellant has shown is the statement in his affidavit that he had been represented by Goldman since 1994. There is no showing that he actively sought Goldman’s representation in this case, nor is there any showing of the circumstances surrounding the failure to file an answer. These factors distinguish this case from Burns v. Shamrock Club, 271. Ark. 572, 609 S.W.2d 55 (1980), upon which appellant relies. In fight of this lack of proof, we cannot say that the trial judge abused his discretion in refusing to set aside the default judgment.
Affirmed.
Stroud, C.J., and Jennings, J., agree.
We dismissed Miller’s first appeal pursuant to Ark. R. Civ. P. 54(b) because the claims against Diamond Lakes and North Malvern Marine remained pending. Miller returned to circuit court and obtained an order that complies with Rule 54(b).
Rule 5(a) provides that all papers filed subsequent to the complaint shall be served on each party. Although the rule does not require service on parties that are in default, appellant was not in default when the affidavit was filed on June 21. | [
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Andree Layton Roaf, Judge.
Coran Auto Sales (“Coran”) appeals the circuit court’s award of a judgment for $4,660 in a bench trial. Appellee, Peter Scott Harris, successfully sued Coran for fraud in municipal court, alleging that Coran sold him a vehicle with an incompatible replacement engine, and had told him the engines were the same. On de novo appeal, the circuit court awarded judgment to Harris, but did so on the basis of revocation of acceptance. On appeal, Coran argues that the circuit court erred because revocation of acceptance was neither pled nor proven, and by awarding Harris the full purchase price while allowing him to also retain the vehicle. We agree that the trial court erred in finding that there was a revocation of acceptance and reverse and dismiss.
On October 28, 1997, Scott Harris purchased a 1991 Mitsubishi Eclipse from Coran Auto Sales for $4,950. Coran had had the engine replaced with an engine from a 1996 Hyundai Sonata. At trial, Harris and his father, David Harris, both testified that Richard Coran, the owner of Coran Auto Sales, told them that the engine had been replaced. David Harris stated that when he asked Coran if the engine was compatible, Coran said, “You bet, they are the same engine.” David stated that he was originally told that the new engine had a ninety-day warranty, but when they were signing the papers to purchase the car, Coran told them he had the engine too long on the lot, so the warranty had expired. Scott Harris purchased an extended warranty at Coran’s suggestion.
Approximately twenty-eight days later, Harris began experiencing problems with the car. Harris testified that he contacted Coran, who told him to contact the company that issued the warranty. When the warranty company did not provide coverage, Harris again told Coran he was having problems. Coran told him to go to Conway Imports where the engine had been installed. David Harris said he went with Harris to Conway Imports and were told that they did not honor any kind of warranty. Approximately six weeks after he purchased the car, Harris took it to Larry Reynolds, a mechanic at L&L Auto Service.
Reynolds testified that he ran a computer diagnostic check that discovered electronic problems with the sensors as a result of an incompatible engine, and that eventually, the computer system would be ruined if the engine was not replaced. Though the car was drivable, Reynolds testified that it would be very difficult to drive because it was getting too much fuel. Reynolds further testified that he did not think that Coran “would be out of line to rely on their (Conway Imports) representations in regard to foreign car parts and motors.”
Fred Spikes, the Conway Imports mechanic who installed the replacement engine, testified that when he installed the motor, he changed the sensors on the engine, and the car ran “fine.” He admitted that he represented under oath, on January 27, 1998, that the engine was compatible with the car and then said, “[s]ometimes it will work out, sometimes it won’t.” He stated if he was brought an engine that would not work appropriately in a car, he would normally notify the customer, and he did not notify Coran that there was a problem.
Coran testified that neither Harris nor his father inquired about the compatibility of the engine when Harris bought the car. Coran stated the only problem Harris had with the car was with two tires, which Coran replaced. He stated Conway Imports found an engine for the car, that he paid $1350 for it and that he relied on Conway Imports’ representation that the engine was compatible because he was not a mechanic. Coran stated he thought Conway Imports should be the party in court because he sold the car “as is” to Harris. Coran also said that he gave Harris all the paperwork on the engine when he sold him the car. Coran stated that he did not know the nature of the problems with the car until the small-claims court case, and Daniel Harris also testified that they did not advise Coran that the engine was incompatible.
At the close of Harris’s case, Coran moved for a directed verdict arguing Harris had not proven fraud. Harris’s counsel responded that Harris relied on statements Coran made about the engine and Coran breached the implied warranty of merchantability. The trial court stated that other parties needed to be brought into the lawsuit and that was a problem when people represent themselves in small-claims cases. The parties agreed to continue the case, however, no additional parties were added. The trial court ultimately awarded judgment to Harris and stated in a letter opinion:
It is my conclusion that Mr. Harris should prevail on this Complaint against Coran Auto Sales. My reasons for that finding are that Mr. Coran directed that a new engine be placed into the vehicle. He sold it as a vehicle with a new engine. However, it is clear from the testimony that the engine which was installed in the vehicle lacked the appropriate wiring harness and other accessories to make it operate in a proper manner. The case law is clear that a automobile dealer is responsible for the product which he sells. See specifically, Currier v. Spencer, 299 Ark. 182 (1989), O’Neal Ford, Inc. v. Early, 13 Ark. App. 189 (1985), and Union Motors, Inc. v. Phillips, 241 Ark. 857 (1967).
These cases are replete with language indicating the responsibility of the dealer even in spite of contractual attempts to negate any warranties on a claim of revocation of acceptance. It is my conclusion that revocation for acceptance should be granted and the plaintiff restored the purchase price of the automobile plus the costs of this action.
The standard of review in civil cases where the trial judge, rather than a jury, sits as trier of fact is whether the judge’s findings were clearly erroneous or clearly against preponderance of evidence. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Wade v. Arkansas Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999).
Coran argues that the trial court committed error in finding revocation of acceptance because Harris only pled fraud in his complaint. Coran asserts this amounted to unfair surprise as he did not have notice that Harris was claiming revocation of acceptance. In his small-claims complaint, Harris alleged fraud, and the facts he stated in support of the claim were that he had problems with the engine because it was not compatible, that Coran said the engine was compatible, and the warranty he purchased from Coran did not cover the engine problems. There were no further pleadings filed in circuit court, and Harris did not amend his complaint.
Arkansas Rule of Civil Procedure 8(a) provides that a pleading “shall contain (1) a statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the pleader is entitled to relief, and (2) a demand for the relief to which the pleader considers himself entitled.” In addition, it is well recognized that pleadings are to be liberally construed and are sufficient if they advise a party of its obligations and allege a breach of them. Deitsch v. Tillery, 309 Ark. 401, 405, 833 S.W.2d 760 (1992). This court has held that, although pleadings are required so that each party will know the issues to be tried and be prepared to offer his proof, Rule 15(b) of the Arkansas Rules of Civil Procedure provides that issues not raised in the pleadings but tried by express or implied consent of the parties shall be treated in all respects as if they had been pled. In re Estate of Tucker, 46 Ark. App. 322, 881 S.W.2d 226 (1994). However, this court will not imply consent to conforming the pleadings to the proof merely because evidence relevant to a properly pled issue incidentally tends to establish an unpled one. Heartland Community Bank v. Holt, 68 Ark. App. 30, 3 S.W.3d 694 (1999).
It is undisputed that Coran did not expressly consent to litigating the issue of revocation of acceptance, the basis for the trial court’s judgment. Further, the small-claims complaint did not advise Coran of any claim other than fraud.
Arkansas Code Annotated section 4-2-608 (Repl. 1991) provides:
(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it:
(a) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
(b) Without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.
Here, while Harris did present testimony that the car was nonconforming, he presented no testimony that he revoked his acceptance of the car. In fact, none of the abstracted testimony establishes that Harris attempted to revoke acceptance of the car. The only evidence presented about contacts that Harris had with Coran after he purchased the car was that Harris and his father called Coran to tell him the engine did not work properly and attempted unsuccessfully to utilize the extended warranty purchased by Harris to address the problems. In the record before us, the issue of revocation of acceptance was neither pled, tried by express or implied consent of the parties, nor proven by the evidence, and the trial court erred in awarding judgment on this basis.
Harris asks us, alternatively, to affirm the trial court’s judgment based on the fraud or misrepresentation theory that was pled. However, Harris is asking for affirmative relief. The trial court’s letter opinion is silent in regard to this cause of action. Harris did not request further findings from the trial court on the issue and did not file a contingent cross-appeal should this court reverse on direct appeal. Consequently, we cannot address this argument. See Schrader v. Bell, 301 Ark. 38, 781 S.W.2d 466 (1989). Although this court can affirm a trial court’s ruling if it reaches the right result for the wrong reason, Marine Servs. Unlimited, Inc. v. Rakes, 323 Ark. 757, 918 S.W.2d 132 (1996), we cannot act as a fact-finder in cases appealed from circuit court. Wildman Stores v. Carlisle Dist. Co., 15 Ark. App. 11, 688 S.W.2d 748 (1985). Here, the evidence presented on the issue of fraud was controverted. When there are issues of credibility and conflicting testimony, we defer to the superior position of the factfinder to resolve those questions. Maloy v. Stuttgart Mem’l Hosp., 316 Ark. 447, 872 S.W.2d 401 (1994). The trial court not only made no findings of fraud in this case, but held for Harris on another theory not pled, creating the inference that Harris failed to persuade the trial court in regard to the fraud allegation. Cf. Maloy, supra (holding trial court’s failure to make findings in ruling for plaintiff created inference that defendant’s testimony failed to persuade the court). Accordingly, we must reverse and dismiss this case.
Griffen and Vaught, JJ., agree. | [
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John B. Robbins, Judge.
On September 30, 1997, appellee Carl Jones sustained an injury to his head and neck when he fell forward into a large piece of timber while working for appellant Polk County. Polk County accepted his injuries as compensable, and paid all reasonable medical expenses as well as temporary total disability benefits. However, Polk County controverted Mr. Jones’ claim that he was entitled to benefits for a permanent partial impairment. A hearing was held, and the only permanent partial impairment rating introduced into evidence was a ten-percent rating assigned by Dr. Thomas Florian. The Workers’ Compensation Commission refused to consider the rating assigned by Dr. Florian because it was not supported by objective findings as required by Ark. Code Ann. § 11 — 9—704(c)(1)(B) (Repl. 1996), and further because, in arriving at the rating, Dr. Florian considered complaints of pain in violation of Ark. Code Ann. § 11 — 9—102(16) (A) (ii) (Repl. 1996). However, the Commission consulted the AMI Guides and determined that, based primarily on objective findings of disc her-niations or bulges at the C3-C4, C4-C5, and C6-C7 levels, Mr. Jones was entitled to compensation for an eight-percent permanent-impairment rating. Polk County now appeals from this award.
For reversal, Polk County first argues that the Commission committed reversible error in independently assessing a permanent-impairment rating based on a document that was not in the record. Next, it contends that, even if the extrajudicial review of the AMA Guides was permissible, the eight-percent rating assigned by the Commission was not supported by substantial evidence. We affirm.
Mr. Jones testified on his own behalf at the hearing. He stated that, on September 30, 1997, he was loading timber into a truck at a lumber yard, and the next thing he remembered was waking up at the hospital. He was told that he had fallen and struck his head and was unconscious for more than four hours. Subsequent to the accident, Mr. Jones was treated by several doctors, and Dr. Florian found that he reached maximum medical improvement on October 27, 1998. Mr. Tones was returned to work with restrictions on April 1, 1999.
A CT scan and myelogram were performed on January 21, 1999. Subsequent to the tests, Dr. J. Michael Standefer reported:
Radiographic studies: Previous studies have been reviewed including the patient’s recent myelogram and post myelogram CT scan, the results of which are basically normal. There is mild disc bulging at several levels, but this does not appear to be of any pathological significance. Degenerative change is modest.
However, Dr. Ismail H. Ihmeidan expressed a contrary view, noting small central disc herniations at the C3-C4, C4-C5, and C6-C7 levels. Dr. Robert Fisher reported, “The myelogram is interpreted as showing mild ventral indentation of the secal sac at CS-4, 4-5, and possibly C6-7.” He further reported, “CT of the cervical spine in the post myelogram state was obtained and interpreted by Dr. Ihmeidan as ‘small focal disc herniations at CS-4, 4-5, and C6-7.’ ”
In its opinion awarding the permanent impairment rating, the Commission reasoned:
[T]he absence of any appropriate medically assessed degree of permanent physical impairment does not automatically preclude the claimant from being entitled to benefits for permanent physical impairment. Under the current Act, as amended by Act 796 of 1993, it is the duty and obligation of this Commission to determine the existence and appropriately assess the extent of permanent physical impairment, rather than the medical experts.
The medical evidence does show the presence of “objective and measurable physical findings” sufficient to support the existence of permanent physical impairment. These findings are in the form of small central focal disc herniations or bulges at the levels of C3-4, C4-5, and C6-7 with mild ventral indention of the thecal sack. These findings are noted on the myelogram and post CT myelogram performed on January 21, 1999.
The American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition), provide a method for the assessment of a specific percentage or degree of permanent physical impairment based solely upon these objective and measurable physical findings. Table 75, Section II. C. and F. on page 113 provides for a permanent physical impairment of 8% to the body as a whole for the observed findings of unoperated herniated discs at multiple levels.
Polk County’s first point on appeal is that the Commission went beyond the scope of its statutory powers when it engaged in extrajudicial review of a document neither included nor referenced in the record. It is undisputed that the section of the AMA Guides relied on by the Commission was not introduced into evidence by either party.
The appellant cites Ark. Code Ann. § 11-9-704(c)(2) (Repl. 1996), which provides, “When deciding any issue, administrative law judges and the Commission shall determine, on the basis of the record as a whole, whether the party having the burden of proof on the issue has established it by a preponderance of the evidence.” It also cites Ark. Code Ann. § 11-9-711(b)(4)(A) (1996), which gives this court the authority to reverse the Commission’s decision if the Commission acted without or in excess of its powers. Arkansas Code Annotated section ll-9-704(c)(3) (Repl. 1996) provides that, “Administrative Law Judges, the Commission, and any reviewing court shall construe the provisions of this chapter strictly.” The appellant submits that, construing the statutes strictly, we must reverse the Commission’s decision because it was not based on the record as a whole, and because the Commission exceeded its authority in going beyond the record.
The Commission correctly stated in its opinion that the AMA Guides must be used in assessing an anatomical impairment. See Ark. Code Ann. § ll-9-522(g)(l)(A) (Repl. 1996); Arkansas Workers’ Compensation Rule 34. However, in the instant case, the section of the AMA Guides upon which the Commission relied in assessing an anatomical-impairment rating was not part of the record, and was not referenced in any of the medical opinions. Notwithstanding this fact, we hold that the Commission did not err in relying on the AMA Guides.
In arriving at our decision, we are cognizant of the precedent we set in Hope Livestock Auction Co. v. Knighton, 62 Ark. App. 74, 966 S.W.2d 943 (1998). In that case, the claimant sought benefits for a bipolar disorder and thus was required to comply with Ark. Code Ann. § 11-9-113(2) (Repl. 1996), which provides:
No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychiatrist or psychologist and unless the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.
In its opinion awarding benefits for the mental illness, the Commission stated:
[Ajlthough the psychiatrist never testified claimant’s diagnosis of bipolar specifically meets the Diagnostic and Statistical Manual of Mental Disorders, when we review this manual we find that the diagnosis of bipolar I disorder satisfies this statutory requirement.
However, we reversed, announcing:
The Commission’s de novo review is confined to the record established by the ALJ. The extrajudicial review of documentation not introduced into evidence was error. We reverse and remand for further findings.
62 Ark. App. at 78, 966 S.W.2d at 946.
We now overrule Hope Livestock Auction Co. v. Knighton, supra, to the extent that it prohibits the Commission from referring to a manual that is not in the record when by law the manual must be consulted to decide an issue in dispute. The Workers’ Compensation Act of 1993 directed the Commission to adopt an impairment-rating guide to be used in the assessment of anatomical impairment, and the Commission adopted the AMA Guides. Thus, in all cases where entitlement to a permanent impairment is sought by the claimant but controverted by the employer, it is the Commission’s duty to determine, using the AMA Guides, whether the claimant met his burden of proof. This being the case, we hold that the Commission can, and indeed, should, consult the AMA Guides when determining the existence and extent of permanent impairment, whether or not the relevant portions of the Guides have been offered into evidence by either party.
Polk County also contends that the Commission exceeded the scope of its authority when it assessed its own impairment rating rather than relying solely on its determination of the validity of ratings assigned by physicians. We disagree. It is the duty of the Commission to translate evidence into findings of fact. Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994). In the instant case, the Commission was authorized to decide which portions of the medical evidence to credit, and translate this medical evidence into a finding of permanent impairment using the AMA Guides.
Polk Country’s remaining argument is that, even if the Commission was authorized to consult the AMA Guides, substantial evidence does not support its assignment of an eight-percent permanent-impairment rating. It notes that there were conflicting medical opinions as to the existence of herniated discs, and submits that there was no medical opinion stated within a reasonable degree of medical certainty as required by Ark. Code Ann. § 11 — 9— 102(16) (B) (Repl. 1996). Polk County further asserts that Mr. Jones failed to establish that his compensable injury was the major cause of his impairment as required by Ark. Code Ann. § 11-9-102(5)(F)(ii)(a) (Repl. 1997). Finally, appellant contends that, even if a permanent impairment raring was warranted, the Commission erred in awarding an eight-percent rating instead of a six-percent rating.
Polk County’s remaining argument is without merit. It correctly asserts that an award by the Commission will not be affirmed on appeal unless it is supported by substantial evidence. See Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998). Flowever, we find that substantial evidence supports the Commission’s ruling.
While there was conflicting medical evidence in this case, it is well settled that it is the Commission’s duty to resolve such conflicts. See Inskeep v. Emerson Elec. Co., 64 Ark. App. 101, 983 S.W.2d 132 (1998); Chamberlain Group v. Rios, 45 Ark. App. 144, 871 S.W.2d 595 (1994). Dr. Ihmeidan diagnosed disc herniations at three levels, and the Commission was free to give weight to his opinion. While it is true that medical opinions addressing permanent impairment must be stated within a reasonable degree of medical certainty, Dr. Ihmeidan’s opinion met this requirement in that he was not equivocal in his assessment of permanent impairment in the form of herniations.
We also reject appellant’s contention that Mr. Jones failed to prove that his compensable injury was the major cause of his impairment. As the Commission correctly noted, there was not evidence as to any other possible causes for the herniations, and no evidence that Mr. Jones experienced any significant neck problems prior to the work-related accident. Thus, the Commission did not err in finding that Mr. Jones satisfied the “major cause” requirement.
Finally, we find that the eight-percent rating arrived at by the Commission is supported by substantial evidence. The Commission based this award on an excerpt from page 113 of the AMA Guides, where it indicates that three-level, unoperated-on disc lesions constitute an eight-percent impairment when associated with moderate to severe degenerative changes. The appellant urges that, at most, the Guides authorize a six-percent rating because Mr. Jones’ degenerative changes were none to minimal. Mr. Jones was diagnosed with “modest” degenerative changes, and this supports the rating assigned by the Commission.
Affirmed.
Stroud, C.J., Hart, Jennings, Crabtree, and Baker, JJ., agree.
There is no dispute on appeal regarding the rating assigned by Dr. Florian. He correctly consulted the AMA Guides to the Evaluation of Permanent Impairment (4th ed. 1993) in arriving at the 10% aggregate rating. However, he assigned a 5% rating as a result of the neck injury based on “continuous muscle guarding” but “no evidence of radiculopathy and no loss of structural integrity,” and the remaining 5% rating was for moderate to marked headaches. The Commission properly refused to accept the ratings offered by Dr. Florian because they were based on subjective criteria and not objective findings as mandated by the Workers’ Compensation Act. | [
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John B. ROBBINS, Judge.
James Brown appeals from his convictions for second-degree battery and committing a terror-istic act. His points for reversal are: 1) his convictions on both charges arose from the same conduct and constitute double jeopardy, 2) the State failed to prove that he caused serious physical injury to the victim, and thus the trial court erred in denying his motions for directed verdict, and 3) the trial court erred in denying his motion for a mistrial. We find no error and affirm.
On October 27, 1997, appellant allegedly fired multiple shots from a rifle into a van that was being driven by his wife, Shirley Brown. He was charged with first-degree battery, a Class B felony (count 1), and committing a terroristic act, a Class Y felony (count 2), with regard to Shirley Brown.
At the close of the State’s case and at the close of all of the evidence, appellant moved for a directed verdict, asserting that the State failed to prove that Mrs. Brown suffered serious physical injury. He also moved at the close of the evidence to compel the State to elect between counts 1 and 2 so as to identify which alleged offense it wished to proceed on with regard to Mrs. Brown. Appellant argued that both charges were based on the same conduct. The trial court denied appellant’s motions.
The trial court instructed the jury regarding first, second, and third-degree battery and committing a terroristic act. The jury retired, deliberated, and found appellant guilty of second-degree battery and committing a terroristic act. During the sentencing phase, the jury sent several notes to the trial judge questioning its sentencing options. Appellant moved for a mistrial, arguing that the jury was confused. The trial court denied the motion. Appellant was sentenced to serve 120 months for his conviction for committing a terroristic act, and was ordered to pay a $1.00 fine for second-degree battery.
Arguments Not Preserved for Appeal
Although appellant raises his double-jeopardy argument first, preservation of the appellant’s right to freedom from double jeopardy requires us to examine the sufficiency of the evidence before we review trial errors. See Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994). Appellant argued in his motion for a directed verdict that the State failed to prove that he caused serious physical injury to Mrs. Brown, proof of which was necessary to sustain a conviction for both first-degree battery and a Class Y conviction for committing a terroristic act. The State maintains that appellant’s argument is not preserved for appeal because he did not properly challenge the sufficiency of the evidence with regard to the elements of second-degree battery.
We agree. Appellant was originally charged with first-degree battery, but the jury was instructed with regard to first, second, and third-degree battery. First-degree battery requires proof of purposefully causing serious physical injury to another by means of a deadly weapon. See Ark. Code Ann. § 5-13-201 (a)(1) (Repl. 1997). Second-degree battery is a lesser-included offense of first-degree battery, and may be shown by proof of either purposefully causing physical injury to another, purposely causing serious physical injury to another person by means of a deadly weapon, or by recklessly causing physical injury to another person by means of a deadly weapon. See Ark. Code Ann. §§ 5-13-202(a)(l)-(3).
Under Arkansas law, in order to preserve for appeal the sufficiency of the evidence to support a conviction of a lesser-included offense, a defendant’s motion for a directed verdict must address the elements of the lesser-included offense. See Moore v State, 330 Ark. 514, 954 S.W.2d 932 (1997); Webb v. State, 328 Ark. 12, 941 S.W.2d 417 (1997). Appellant moved for a directed verdict only on the ground that there was insufficient proof of serious physical injury and did not address the remaining elements under the second-degree battery statute. Therefore, we hold that his challenge to the sufficiency of the evidence is not preserved for appeal.
Similarly, we hold that appellant’s argument that his convictions for both committing a terroristic act and second-degree battery violate Arkansas Code Annotated section 5-1-110(4) and (5) (Repl. 1997) is not preserved for appeal. Subsection (a)(4) provides that a defendant may not be convicted of more than one offense if the offenses differ only in that one is designed to prohibit a designated kind of conduct generally and the other offense is designed to prohibit a specific instance of that conduct. Subsection (a) (5) provides that a defendant may not be convicted of more than one offense “if the conduct constitutes an offense defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.”
Appellant argues in his brief that the second-degree battery statute specifically prohibits individuals with various mental states from causing injury to other persons, whereas the statute prohibiting the commission of a terroristic act prohibits the general act of shooting or projecting objects at structures and conveyances in order to protect both the property and the occupants. He further argues that, pursuant to section (a)(5), that the single act of shooting was a continuing course of conduct. However, appellant did not raise these specific objections below and we decline to address issues raised for the first time on appeal. See Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998).
Sufficiency of the Evidence
We do address, however, the sufficiency of the evidence as to serious physical injury as it relates to committing a terroristic act, Class Y felony. This crime is defined in Ark. Code Ann. § 5-13-310 (Repl. 1997), and the jury was instructed to consider the following relevant portions of that statute:
(a) For purposes of this section, a person commits a terroristic act when, while not in the commission of a lawful act:
(1) He shoots at or in any manner projects an object with the purpose to cause injury to persons or property at a conveyance which is being operated or which is occupied by passengers[.]
(b)(2) Any person who shall commit a terroristic act as defined in subsection (a) of this section shall be deemed 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.
A motion for directed verdict challenges the sufficiency of the evidence. Ayers v. State, 334 Ark. 258, 268, 975 S.W.2d 88, 93 (1998). On review, the appellate court views the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the appellee and affirms if there is substantial evidence to support the conviction. Wilson v. State, 56 Ark. App. 47, 48, 939 S.W.2d 313, 314 (1997). Substantial evidence is that which has sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Smith v. State, 337 Ark. 239, 241, 988 S.W.2d 492, 493 (1999). Only evidence that supports the conviction will be considered. McDole v. State, 339 Ark. 391, 396, 6 S.W.3d 74, 77 (1999).
Serious physical injury is an injury that “creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.” Ark. Code Ann. § 5-1-102(19) (Repl. 1997). Ms. Brown testified that she was hit by gunfire in the buttocks area; that, as a result, part of her intestine was removed; that she had to wear a colostomy bag for three months after the shooting; that she stayed in the hospital for nine days; and that she incurred nearly $30,000 in medical expenses. Not only did she lose part of a bodily organ, her intestine, but she lost function, as well, to such an extent that she needed a colostomy bag for three months. That is substantial evidence of serious physical injury. See also Henderson v. State, 291 Ark. 138, 722 S.W.2d 842 (1987). Moreover, whether injuries are temporary or protracted is a question for the jury. Lum v. State, 281 Ark. 495, 499, 665 S.W.2d 265, 267 (1984); Harmon v. State, 260 Ark. 665, 670, 543 S.W.2d 43, 46 (1976). The trial court properly denied the appellant’s motion.
Double Jeopardy
At the close of the State’s case, appellant’s attorney made the following argument:
[W]e are at the point in this trial where the State must choose whether it’s going forth with battery in the first degree and terror-istic act. But the terroristic act count involving Mrs. Brown ... is based upon the same or - well, actually the same facts and circumstances as the battery in the first-degree charge, the distinction being one is a Class [B] felony and one is a Class Y.
In other words, the same facts that you would use to convict someone of battery in the first-degree and the facts in this case are identical to those that you would use for a terroristic act.
At the conclusion of the evidence, appellant’s attorney renewed his plea to the trial judge:
We would move to dismiss, again and renew our motion stating that the terroristic act, the count describing the terroristic act, is a duplicate or duplicative of the first degree battery charges in-on the facts of this case; that in effect we are trying this man, we would be submitting it to the jury on two counts that would require the same identical facts for a conviction.
[I]t’s unfair to the defendant to-to have it submitted to the jury on both counts, when he could be convicted of both counts, when, in reality, it’s one set of facts and one act and one act only.
While not expressly stated, it is implicit that appellant’s counsel argued that he was being prosecuted twice based upon the same conduct. He maintains that the offense of committing a terroristic act includes all of the elements of committing second-degree battery. Therefore, he argues, second-degree battery is a lesser-included offense of committing a terroristic act, and he cannot be prosecuted under both charges.
We disagree with appellant’s argument. An accused may be charged and prosecuted for different criminal offenses, even though one offense is a lesser-included offense, or an underlying offense, of another offense. Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996). However, a defendant so charged cannot be convicted of both the greater and the lesser offenses. Id.; see also Ark. Code Ann. § 5-1-110(a) (Repl. 1993). Under the statute, the trial court should enter the judgment of conviction only for the greater conviction. See Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1993). The trial court is clearly directed to allow prosecution on each charge. Id. It is when the jury returns guilty verdicts that the defense should move the trial court to limit the judgment of conviction to one charge. Id. “Only at that time will the trial court be required to determine whether convictions can be entered in both cases.” Id. at 282. In the instant case, rather than waiting until the jury returned its verdicts and moving the trial court to limit conviction to only one charge, appellant attempted to prematurely force a selection on the State. The trial court did not err in denying his motions at the times that they were presented.
Even were we to consider appellant’s double-jeopardy argument on the merits, we would hold that no violation occurred. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects a defendant from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. See Muhammed v. State, 67 Ark. App. 262, 998 S.W.2d 763 (1999). Appellant premises his argument on (3). It appears that appellant presumes that the only finding that could reasonably be reached from the evidence was that Mrs. Brown was shot only once. Therefore, for this one act, appellant is being punished twice.
We disagree because the State, in both its opening and closing statements, told the jury that it intended to prove, and did prove, that Mr. Brown fired multiple shots at Mrs. Brown’s van and that Mrs. Brown was personally hit twice. The State introduced evidence of this through the testimony of the victim, Mrs. Brown. Consequently, appellant’s convictions for second-degree battery and committing a terroristic act are not constitutionally infirm because they are based on two separate criminal acts.
Our supreme court held in McLennan v. State, 337 Ark. 83, 987 S.W.2d 668 (1999), that committing a terroristic act is not a continuous-course-of-conduct crime. That is, when multiple shots are fired, each shot poses a separate and distinct threat of serious harm to any individual within their range. Each of the defendant McLennan’s shots required a separate conscious act or impulse in pulling the trigger and was, accordingly, punishable as a separate act. Id. McLennan was convicted of three counts of committing a terroristic act for firing a handgun three, quick, successive times into his former girlfriend’s kitchen window, though no one was injured. The supreme court stated that had he fired his weapon and injured or killed three people, “there is no question that multiple charges would ensue.” Id. at 89.
Likewise, in the instant appeal, the jury was presented with evidence from which it could conclude that Mr. Brown fired at least nine rounds from the vehicle he was driving, blowing out the windshield of his own vehicle, causing multiple gunshot holes and damage to the back, side, and front of Mrs. Brown’s van, and successfully hitting his wife’s body twice with gunfire. Indeed, Mr. Brown testified before the jury that he was not trying to tell them that this course of events did not happen; he just wanted them to take into consideration why it happened, which was because he was angry at her for having an affair with a co-worker and he just “snapped.” It was for the jury to conclude what exactly occurred that day. Thus, each of the two bullets that penetrated Mrs. Brown would comport with each of the two guilty verdicts that the jury rendered. Thus, the prohibition against double jeopardy was not violated in this case.
Motion for Mistrial
During the sentencing phase of the trial, the jury sent four notes to the trial court. The first note concerned count 3, which is not part of this appeal. The second note asked what the minimum fine was for first-degree battery and committing a terroristic act. The third note asked with regard to committing a terroristic act (count 2) whether appellant could be sentenced to probation, a suspended sentence, or to a term fewer than ten years. The fourth note asked, with regard to count 2, what would happen if the jury failed to agree to a prison sentence. Appellant moved for and renewed a motion for mistrial based on the jury’s confusion with regard to its sentencing options, also arguing that the notes indicated that he was not receiving a fair and impartial trial. The trial court denied his motions.
Appellant maintains that the jury tried to refuse sentencing and attempted to sentence him outside the statutory minimums. He argues that the only option left by the trial court was to either grant a mistrial or “force” the jury to sentence him to serve ten years, the minimum sentence for a Class Y felony. After appellant was sentenced, a handwritten note signed by all twelve jurors was delivered to the trial court recommending that count 2 be reduced or suspended. He argues this is “compelling evidence” that he did not receive a fair trial. The State maintains that appellant has not produced a record by which it is apparent that he suffered prejudice as a result of the questions asked by the jurors. See Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995).
It is well-settled that a mistrial is an extreme remedy that should be granted only when the error is beyond repair and cannot be corrected by curative relief. See Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999); Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). Our supreme court has held that a mistrial is a drastic remedy which should only be used when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when fundamental fairness of the trial itself has been manifestly affected. See Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996). The trial court has wide discretion in granting or denying a motion for a mistrial, and the appellate court will not disturb the court’s decision absent an abuse of discretion or manifest prejudice to the movant. See Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998).
It was appellant’s burden to produce a record demonstrating that he suffered prejudice. See Gatlin v. State, supra. As the State argues, appellant has failed to do so. The trial court apparently refused to inform the jury that they could suspend appellant’s sentence or place him on probation. However, the trial court did not err in this regard, as a court cannot suspend imposition of a sentence or place a defendant on probation for Class Y felonies. See Ark. Code Ann. § 5-4-301 (a)(1)(C).
It is obvious from the record that the jury was sympathetic toward appellant and was searching for a legal method by which to show him leniency. The record simply demonstrates that the trial judge properly did not allow the jury to attempt to sentence appellant to a term less than the statutory minimum or to a condition such as probation or a suspended sentence that is statutorily prohibited. Appellant cannot demonstrate prejudice under these circumstances. Therefore, we hold that the trial court did not err in refusing to grant appellant’s motion for a mistrial.
Affirmed.
Jennings, Crabtree, and Baker, JJ., agree.
Pittman, J., concurs.
Hart, Griffen, Neal, and Roaf, JJ., dissent.
He was also charged and found guilty of another count of committing a terroristic act with respect to a second victim (count 3). Appellant appeals only his convictions for counts 1 and 2 involving Mrs. Brown.
The State initially argues that this court cannot review the element’s of second-degree battery because appellant did not abstract the second-degree battery instruction. However, each of the battery instructions, including the second-degree battery instruction, is clearly abstracted in appellant’s brief. | [
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Sam BIRD, Judge.
Appellant Eve Elaine Lawson was charged with first-degree murder. A jury convicted her of second-degree murder, and she was sentenced to twenty years in the Arkansas Department of Correction. She appeals the conviction based upon the following alleged errors by the trial court. First, she contends that because she is deaf, she was entitled to the assistance of an interpreter before the police took her statement and at the hearing on her motion to suppress her statement. She also contends that she was denied effective assistance of counsel because her attorneys failed to secure rights to the assistance of an interpreter and because her attorney did not present evidence during the sentencing phase. In addition, she contends that the prosecutor violated her Fifth Amendment rights against self-incrimination when he informed the jury during his opening statement that Lawson would be stating that the crime was committed in self-defense. She also contends that she is entitled to a new trial because improper contact between a juror and the family of the victim deprived her of her right to an impartial jury. And, she contends that her Sixth Amendment rights were violated because of her trial attorney’s conflict of interest. We affirm.
On May 20, 1998, Lawson was arrested for the murder of Russell Lynn Rogers. She gave a statement to police that day admitting that she had shot Rogers in the head, but contending that she did so after he kidnapped her and mentally abused her. She stated that she was scared to leave Rogers’s home because he would find her and kill her. After she shot him, she went to Rogers’s neighbors’ house and told them what had happened and asked to use the phone to call the police. In this statement, she contends that she called the police and told them what had happened. Before her trial, Lawson moved to suppress the statement, contending that the statement was not freely made because she was under extreme duress and confusion at the time she was interrogated by the police.
The court conducted a hearing on Lawson’s motion to suppress. Alex Sylvester, a criminal investigator with the Arkansas State Police, was the first to testify and stated that prior to conducting the interview, in which Lawson’s statement was made, he advised Lawson of her Miranda rights. He stated that Lawson freely and voluntarily discussed the shooting with him, describing in detail what occurred at Rogers’s residence the night of the shooting. Sylvester stated that he took Lawson’s statement in a small room and that he did not have any difficulty communicating with her and that she could hear him “fine.” Sylvester stated that when Lawson made the statement, the tape recorder did not work initially and, therefore, only half of Lawson’s statement was recorded.
Joan Demmitt, an Arkansas State Trooper, testified that she transported Lawson to jail on the night of the shooting, but that she did not question Lawson. She stated that she was present when Lawson’s rights were read to her.
Dewayne Luter, an investigator with the state police, testified that he was present during Lawson’s interview and was present when she was advised of her rights. He stated that Lawson did not ask for the interview to cease or request an attorney.
James Isham, the sheriff of Scott County, testified that he went to Rogers’s home on May 20 to investigate the shooting after the dispatcher contacted him regarding the incident. He then read the dispatcher’s report into evidence. The report stated that the dispatcher, Michael Oakes, had received a call about a homicide on May 20 from Nicole Falconer, in which Falconer informed Oakes that Lawson had told her that she shot Rogers. The dispatcher asked Falconer to ask Lawson to come to the phone. Lawson identified herself to Oakes and then asked him to speak louder, telling him that she was hearing-impaired. Lawson informed Oakes that she had been abducted by Rogers, that Rogers had been abusive, and that she had shot him in the head.
Lawson was present at the suppression hearing. Her counsel did not ask for, nor was she provided, the assistance of an interpreter. The court denied her motion to suppress.
In the prosecutor’s opening statement, he stated to the jury:
Now, as you’re aware, the defendant in this case, Eve Lawson, is charged with the first-degree murder of Russell Rogers. The State alleges that on or about May 20th of 1998, the defendant, with the purpose of causing the death of another person, did in fact cause the death of Russell Rogers. The evidence is going to show that the defendant placed a .22 caliber four-shot Derringer to the victim’s head, Russell Rogers, while he was asleep in his bed at his residence. Now the defendant would have you believe that this was in self-defense.
Lawson objected to this statement and moved for a mistrial, contending that she had not yet decided whether to testify and that the prosecutor’s statement was going to force her to testify, in violation of her constitutional right not to have to testify. The court denied the motion, stating that the prosecutor should clarify that he was referring to what Lawson had said in her statement.
During the trial, Lawson was provided assistance for her hearing impairment. At the trial, there was testimony from Oakes, the dispatcher, who stated again that Lawson had informed him that she had shot Rogers in the back of the head. Jason Daggs, a deputy sheriff for the Scott County Sheriffs office, testified that he responded to a call concerning a shooting at Rogers’s residence. He testified that when he arrived at the scene, he was met by Lawson, who informed him that she had shot Rogers. James Isham, sheriff, testified that when he arrived at the trailer where Rogers lived, Lawson surrendered to the police.
Sylvester testified at trial, again stating that Lawson was advised of her Miranda rights and indicating that she understood them before giving her statement. Sylvester then testified regarding Lawson’s statement. He stated that she had told him that Rogers had kidnapped her, that he had verbally abused her and had knocked her against a table, and that she admitted killing Rogers. He stated that at no time did Lawson state that she had been sexually abused by Rogers. In addition, she stated that Rogers had asked her “to take that gun and shoot him and take him out of all of his pain.”
Jason Falconer, a neighbor of Rogers, testified that Lawson had come to his home asking to use the phone and stating that she had shot Rogers. Nicole Falconer, Jason’s wife, also testified that Lawson had informed her that she had shot Rogers.
Lawson testified that she was abducted by Rogers and sexually abused for three days before she killed him. She also stated that she had a hearing impairment and that she had informed officials throughout the proceeding of her impairment. She stated that while she was giving her statement, the officers asked her questions that she could not really understand. She stated that part of the time, she could not hear the questions.
The jury found Lawson guilty of second-degree murder, and she filed a motion for a new trial. After moving for and being granted substitution of counsel, Lawson filed an amended motion for a new trial, contending that because she was deaf, she was entitled to an interpreter at the time of her arrest; that she was entitled to an interpreter at all stages of her criminal proceeding, including the suppression hearing; that during the trial, a juror was repeatedly speaking to members of the victim’s family; that Lawson’s trial attorney had a conflict of interest because of his concerns about his son’s election to the office of prosecuting attorney; and that she had not received effective assistance of counsel as there were no witnesses presented on her behalf at the sentencing phase of the trial. Attached to the motion was an affidavit by Jerry Parker in which he stated that during Lawson’s trial he observed a juror talking to Rogers’s family on several occasions.
A hearing on Lawson’s motion for a new trial was held. John Everett, an attorney, testified that because Lawson’s first attorney did not raise the issue of her hearing impairment at any stage of the proceeding, specifically in the motion to suppress, she received ineffective assistance of counsel. He also stated that it appeared that her second counsel, trial counsel, had a conflict of interest in representing her. In addition, Everett stated that it was “most unusual for some evidence not to be presented at the sentencing stage, assuming Lawson had no history of violence, no propensity for violence, and no record.”
Everett testified that Lawson is deaf and that the only way someone is able to communicate with her is by speaking “directly and distinctly and loudly where she can see you, see your lips, she can pick it up, most of it. But if you’re not facing her, if you’re speaking in normal, conversational tones, and particularly if you’re not facing her, she doesn’t have a clue what you are saying.”
Lawson’s mother, Flora Belle Lawson, testified that her daughter contracted encephalitis that caused her hearing loss when she was a teenager. She said that she went to the police station the day of the shooting and informed the police that her daughter could not hear. She also testified that she was not in the courtroom when her daughter was found guilty because she expected to testify but was not called as a witness.
Juanita Scroggins, Lawson’s aunt, testified that she saw a juror speak to members of the victim’s family, but that she did not hear what was said. She also testified concerning Lawson’s hearing impairment.
Tom Tatum, Sr., testified that he was Lawson’s trial attorney. He stated that during his first meeting with Lawson, he learned that she had a hearing loss and that she could not hear certain tones, but that he would not consider her to be deaf. He stated:
When we got down to trial time I wanted to make sure that Lawson was afforded the opportunity to hear everything that was going on in the courtroom. That’s when I petitioned the court to ask the court for some special assistance. We tried the amplification, got the equipment. Eve told me that that wouldn’t work. So I came up with this “real-time” idea, which worked real well for her.
He also stated that during the trial he made a statement to a friend of his, “Am I losing any votes?” He said that the statement was an “old joke that goes way, way back,” and he stated that at the time of the trial, no election was taking place. In addition, he stated that the comment by the prosecuting attorney that Lawson was going to claim self-defense did not affect her decision to testify and that she had already decided to testify.
Sylvester testified at the hearing on the motion for a new trial that he was not made aware by dispatcher Oakes that Lawson had a hearing problem. He stated that she informed him that he needed to face her so that she could read his lips, but that she understood what he was saying. He stated that she did not indicate that she could not understand him. He stated that when she gave her statement, the room was quiet with no distractions, and Lawson was sitting real close to him. He stated that he felt that she could understand everything that he was saying. In addition, he stated that Lawson did not ask him to speak up. The court denied Lawson’s motion for a new trial, and she brings this appeal.
For her first point on appeal, Lawson contends that because she was hearing-impaired, she was entitled to an interpreter before the police took her statement. She states that she informed the police that she had a hearing impairment and that her statutory rights under Ark. Code Ann. § 16-89-105 (1987) were violated when the police took her statement without providing her with the assistance of an interpreter.
When a denial of a motion to suppress is challenged, we make an independent determination based upon the totality of the circumstances. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1987). We reverse only if the denial is clearly against the preponderance of the evidence. Id.
Arkansas Code Annotated section 16-89-105(c) states that a person is entitled to assistance when he is deaf and in-custody, rather than someone who is hearing-impaired and the subject of a criminal trial, which is covered under Ark. Code Ann. § 16-89-104(a) (1987) and will be discussed later in this opinion. Section 16-89-105(c) states:
In the event a person who is deaf is arrested and taken into custody for any alleged violation of a criminal law of this state, the arresting officer and his superiors shall procure a qualified interpreter in order to properly interrogate the deaf person and to interpret the person’s statement. No statement taken from the deaf person before an interpreter is present may be admissible in court.
Arkansas Code Annotated section 16-10-127(e)(l) (Repl. 1999) defines a deaf person as “a person with a hearing loss so great as to prevent his understanding language spoken in a normal tone.” In Hollamon v. State, 312 Ark. 48, 55, 846 S.W.2d 663, 667 (1993), the supreme court found no error in the trial court’s use of the Black’s Law Dictionary, 6th ed. (1990), definition of a “deaf person” as “any person whose hearing is totally impaired or so seriously impaired as to prohibit the person from understanding oral communications when spoken in a normal conversational tone.”
Lawson contends that she should have been provided the assistance of an interpreter when her statement was taken because she is considered to be deaf under the statutory definition and the definition in Hollamon and because she informed the police that she was hearing-impaired before her statement was taken and when her statement was taken. The State contends that she did not object to this below and, therefore, her argument is not preserved for appeal. We agree that her argument is not preserved. In her motion to suppress, she made no mention of the fact that her statement should be suppressed because she was hearing-impaired. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998); McNeely v. State, 54 Ark. App. 298, 925 S.W.2d 177 (1996).
Even if this argument were preserved for appeal, her abstract does not demonstrate that she presented proof that she is deaf. We agree that the abstract is replete with testimony that Lawson suffers from a hearing loss. However, she has offered no evidence that her hearing loss would qualify her as deaf under either the Hollamon or the statutory definition. Lawson has not shown that she could not understand oral communications when spoken in a normal conversational tone. Even though Lawson had stated to the dispatcher and the investigating officers that she was hearing-impaired, she gave no indication to the officers that she did not understand them or the proceedings. In addition, Sylvester, the investigating officer who took Lawson’s statement, testified that even though she informed him that she was hearing-impaired, she did not appear confused, she had no trouble communicating, and she appeared to be able to hear him. In addition, after she told the dispatcher that he needed to speak up, because she was hearing-impaired, she gave no indication that she had trouble answering the questions that followed. After her Miranda rights were read to her, Lawson initialed the form showing that she understood them. There was no testimony from any of these officers that they were not speaking in a normal conversational tone.
For Lawson’s second point on appeal, she contends that because she was not provided the assistance of an interpreter during the hearing on her motion to suppress, her constitutional and statutory rights were violated. Arkansas Code Annotated section 16-89-104(a) states, in pertinent part,
(a) Every person who cannot speak or understand the English language or who because of hearing, speaking, or other impairment has difficulty in communicating with other persons, and who is a defendant in any criminal action or a witness therein, shall be entided to an interpreter to aid the person throughout the proceeding.
Lawson argues that because she informed the police officers that she had a hearing impairment, she was entitled to assistance at the suppression hearing. She argues that because she was not provided an interpreter, this court must reverse her conviction. She asserts that in People v. Doe, 602 N.Y.S.2d 507 (1993), the court reversed a conviction of an appellant who was not provided assistance and held, “A defendant is entitled to hear 100% of the proceedings.” Lawson asserts that she had a hearing loss far greater than that suffered by the defendant in People v. Doe, supra.
The State contends that Lawson’s argument is not preserved for appeal in that she did not make this argument below. We agree with the State because at no time did Lawson object to the proceedings, contending that she was deaf. An appellate court will not consider an argument that was not presented to the trial court. Tucker v. State, 336 Ark. 244, 983 S.W.2d 956 (1999); Britt v. State, supra; Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998); McNeely v. State, supra.
For her third point on appeal, Lawson contends that she was denied effective assistance of counsel because her attorneys did not secure an interpreter at the suppression hearing, which was a violation of her statutory and constitutional rights, and that because of this violation she is entitled to a new trial. Lawson contends that an interpreter should have been secured for her during the suppression hearing and that her attorneys should have moved to suppress the statement because an interpreter was not secured. She argues, “The suppression of that statement would have completely altered the manner in which the state attempted to prosecute [her], and the absence of the statement in evidence would have rendered it likely that [she]would not have testified, and would not have been convicted.”
In accordance with Strickland v. Washington, 466 U.S. 668 (1987), when claiming that she received ineffective assistance of counsel, an appellant must show that her counsel’s conduct was deficient and that the deficient conduct was prejudicial. To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). This requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Id. Petitioner must also show that the deficient performance prejudiced his defense; this requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. Unless the 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.
The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. To rebut this presumption, the appellant 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., that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. In making a determination on a claim of ineffectiveness, the totality of the evidence before the fact-finder must be considered. Id. The reviewing court will not reverse the denial of postconviction relief unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Id.
Under the test established in proving ineffective assistance of counsel, Lawson must show that her attorney was deficient, making errors so serious that he was not functioning as counsel. We agree that because there was evidence that Lawson suffered from a hearing impairment, pursuant to Ark. Code Ann. § 16-89-104(a), she should have been provided an interpreter to aid throughout the proceeding. However, we cannot say that the outcome would have been different had an interpreter been provided. In other words, Lawson has not shown that there is a reasonable probability that the jury would have had a reasonable doubt respecting guilt. Lawson admitted to the Falconers, to the dispatcher, and to the police that she shot Rogers. Based upon the totality of the evidence before the jury, we cannot say that the absence of the interpreter undermined the confidence in the outcome of the trial.
Lawson also contends that she received ineffective assistance of counsel because her attorney failed to call any witnesses during the sentencing phase of the jury trial. She argues that her counsel was ineffective in that he did not provide witnesses during the sentencing phase that Lawson had no prior history of violence, had an excellent character, had overcome a serious illness, and had coped with a serious hearing disability. Decisions regarding witness testimony are matters of trial strategy. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). A lawyer’s choice of trial strategy that proves ineffective is not a basis for meeting the test for ineffective assistance of counsel. State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998). In Pyle v. State, supra, the supreme court held that absent a showing of how the witnesses could have changed the outcome of the trial, there was not a claim for ineffective assistance of counsel when a defendant’s attorney did not call certain witnesses during the sentencing phase. In the case at bar, Lawson has not shown that the testimony of the witnesses, including her mother and aunt who were ready to testify, would have changed the outcome of the trial.
For her fourth point on appeal, Lawson contends that her Fifth Amendment right against self-incrimination was violated when the prosecutor stated in his opening statement that she was relying on self-defense as a defense to the charge. Lawson objected, moving for a mistrial. The court denied the motion. On appeal, she contends that by making this statement, the prosecutor forced her to testify. Our standard of review in granting a mistrial was stated in Gaines v. State, 340 Ark. 99, 113, 8 S.W.3d 547, 556 (2000):
A mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected. The trial court has wide discretion in granting or denying a motion for a mistrial, and absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal. [Citations omitted.]
The prosecution in a criminal case is prohibited from commenting on a defendant’s post-arrest, post-Miranda warning silence. Doyle v. Ohio, 426 U.S. 610 (1976). However, we do not find that the prosecutor’s comment in his opening statement was a violation of Doyle, in that the prosecutor’s comment was based upon evidence that he expected to be produced at trial, i.e., Lawson’s statement given to the police in which she alleged that she was kidnapped and abused. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996).
Also, as the State points out, even if we found that the prosecutor’s comment was a Doyle violation, a mistrial should not be granted because a limiting instruction to the jury would cure any prejudice. See Cagle v. State, 68 Ark. App. 248, 6 S.W.3d 801 (1999). The failure to request a cautionary instruction should not inure to the appellant’s benefit on appeal. Id. In the case at bar, Lawson did not request a cautionary instruction.
For her fifth point on appeal, Lawson argues that improper contact between a juror and a member of the victim’s family deprived her of her right to an impartial jury. She argues that improper contact between a juror and a family member of the victim is presumptively prejudicial and requires a new trial. The burden was on the appellant to prove that a reasonable possibility of prejudice resulted from juror misconduct, and prejudice is not presumed in such situations. Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993). Whether unfair prejudice occurred is a matter for the sound discretion of the trial court. Id.
Lawson filed with her motion for new trial an affidavit given by Jerry Parker, who stated that he saw a member of the jury talk with the family of the victim on several occasions during the trial. He stated that he did not know what was being said and that he just assumed the communication was to members of the victim’s family. Glen Stanfield, the victim’s stepfather, testified that he was not aware that a juror spoke with any member of the family. Juanita Scroggins, Lawson’s aunt, stated that she saw a juror talking with members of Rogers’s family, but that she did not know the juror’s name or what she said.
The testimony of these witnesses does not demonstrate that any prejudice resulted. In fact, it was not proven that a juror spoke with the family. Parker simply testified that he just assumed that the juror was talking to the family members. In addition, Scroggins did not know what the juror said to the family. Therefore, we find that the court did not abuse its discretion in finding that Lawson had failed to prove that the contact, if any, by a juror with the family of the victim was inappropriate or in violation of the court’s admonishment to the jury.
For Lawson’s sixth and final point on appeal, she contends that her Sixth Amendment rights were violated by a conflict of interest on the part of her trial counsel. She maintains that during a break at the trial, her counsel, Tom Tatum, Sr., was overheard asking Don Frost, a relative of the victim, “Am I losing any votes?” She states, “This [sic] significance of this comment arose from the fact that trial counsel’s son was entering a contested race for the position of county prosecutor, and defense counsel was worried that his representation of Lawson might impact negatively on the success of his son’s election campaign.”
In order for Lawson to be granted postconviction relief when alleging a conflict of interest, she must prove that an actual conflict of interest existed and that the conflict adversely affected her. Myers v. State, 333 Ark. 706, 972 S.W.2d 227 (1998). Lawson notes that, for relief to be granted, she has to show that the established conflict of interest actually affected the adequacy of the representation. Dawan v. Lockhart, 31 F.3d 718 (8th Cir. 1994).
Tatum testified that he was not involved in a campaign at the time of the trial and that the comment was an old private joke between himself and a friend. We cannot say that the court erred in finding that Lawson has not proven that her trial counsel had an actual conflict or that she was prejudiced by the comment or the alleged conflict.
Affirmed.
Baker and Roaf, JJ., agree. | [
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Sam Bird, Judge.
In September 1988, appellees Tim and Kelly Harris purchased 160 acres in Conway County from appellants Doyce and Peggye Winningham, who retained an adjacent tract of land. As part of the transaction, appellees gave the Winninghams a recorded easement, which provided:
THAT TIM HARRIS AND KELLY HARRIS, HUSBAND AND WIPE, for good and valuable considerations receipt of which is hereby acknowledged does [sic] grant, to DOYCE WINNINGHAM AND PEGGYE WINNINGHAM, husband and wife the right to enter upon said lands of TIM HARRIS AND KELLY HARRIS, husband and wife situated in Conway County, Arkansas, to-wit:
A right of way over and across the North 30 feet of the SW1/4 of Section 4, Township 8 North, Range 15 West described as beginning at the Northwest corner of said SW1/4 and run along the North line of said SW1/4 to the Northeast Corner of said SW1/4. This 30 foot right of way to be used for road purposes.
TIM HARRIS AND KELLY HARRIS, Husband and wife covenants [sic] that they are the owners of the above described lands and there are no restrictions or impediments to its grant of the right of way easement contained herein.
That DOYCE WINNINGHAM AND PEGGYE WIN-NINGHAM, Husband and wife their heirs and assigns forever shall hold harmless TIM HARRIS AND KELLY HARRIS, their heirs and assigns against loss, damage or injury resulting from the use of the above described right of way easement and the rights granted herein.
DOYCE WINNINGHAM AND PEGGYE WINNING-HAM, Husband and wife by accepting the right of way easement, does [sic] for themselves, their successors and assigns hereby agree that in the event that it shall abandon or terminate its use of the right of way easement granted hereby or use for purposes other than such grant, that the right of way easement granted hereby and any and all rights appurtenant thereto shall thereupon terminate and revert to TIM HARRIS AND KELLY HARRIS, Husband and wife.
In June 1997, Doyce and Peggye Winningham sold the property adjacent to appellees to appellants Denny Lee and Rebecca Winningham. After appellees refused to permit Denny Lee and Rebecca Winningham to make improvements to the easement, appellants filed this action in the Conway County Chancery Court, seeking a declaration that the easement given to Doyce and Peggye Winningham was appurtenant to the land and therefore transferrable to their successors in title.
At trial, appellees argued that the easement could not be conveyed because it was an “easement in gross” and, therefore, personal to Doyce and Peggye Winningham. The chancellor found the easement to be ambiguous and permitted the introduction of extrinsic evidence to establish its meaning.
Doyce Winningham testified that he had intended to be able to transfer the easement whenever he sold the property. He admitted that he had caused the easement to be prepared and that he was experienced in real estate deals. Denny Lee Winningham testified that he would not have agreed to purchase the property if he had not believed that he could use the easement across appellees’ property. Tim Harris testified that they had granted the easement to the Winninghams for their personal convenience and had not intended to convey any rights to any subsequent owners of Doyce and Peggye Winningham’s property.
The chancellor found the easement to be in gross and personal to Doyce and Peggy Winningham and that it did not, therefore, pass with the land. On appeal, appellants argue that the chancellor’s finding of an easement in gross is erroneous.
An appurtenant easement runs with the land and serves a parcel of land known as the dominant tenement, while the parcel of land on which the easement is imposed is known as the servient tenement. Riffle v. Worthen, 327 Ark. 470, 939 S.W.2d 294 (1997). An easement in gross, however, is personal to the parties; it does not have a dominant tenement because it benefits a person or an entity, and not the land. Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995); Merriman v. Yutterman, 291 Ark. 207, 723 S.W.2d 823 (1987). When an easement is annexed as an appurtenance to land, whether by express or implied grant or reservation, or by prescription, it passes with a transfer of the land, even though it may not be specifically mentioned in the instrument of transfer. Carver v. Jones, 28 Ark. App. 288, 773 S.W.2d 842 (1989); Wallner v. Johnson, 21 Ark. App. 124, 730 S.W.2d 253 (1987). An appurtenant easement is incapable of existence separate and apart from the particular land to which it is annexed. Carver v. Jones, supra.
Interpretation of a deed is required if it does not specify whether an easement is appurtenant or in gross. Riffle v. Worthen, supra. When interpreting a deed, the court gives primary consideration to the intent of the grantor. Id.; Sides v. Beene, 327 Ark. 401, 938 S.W.2d 840 (1997); Wilson v. Brown, supra. When the court is called upon to construe a deed, we will examine the deed from its four corners for the purpose of ascertaining that intent from the language employed. Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998). The court will not resort to rules of construction when a deed is clear and contains no ambiguities, Barnes v. Barnes, 275 Ark. 117, 627 S.W.2d 552 (1982), but only when the language of the deed is ambiguous, uncertain, or doubtful. Bennett v. Henderson, 281 Ark. 222, 663 S.W.2d 180 (1984). When a deed is ambiguous, the court must put itself as nearly as possible in the position of the parties to the deed, particularly the grantor, and interpret the language in the light of attendant circumstances. Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974). The determination of the intent of a grantor is largely a factual one, and the appellate court will not reverse a chancellor’s determination of a factual matter unless it is shown to be clearly erroneous or clearly against the preponderance of the evidence. Wylie v. Tull, 298 Ark. 511, 769 S.W.2d 409 (1989).
The distinction between appurtenant easements and easements in gross normally depends upon the unique facts of each individual case. In Rose Lawn Cemetery Ass’n, Inc. v. Scott, 229 Ark. 639, 642, 317 S.W.2d 265, 267 (1958), the grantor conveyed his interest in property “EXCEPT a strip of land 25 feet wide . . . which is reserved as a roadway for use of the parties hereto.” The supreme court held that the language created an easement in gross that was personal to the parties.
In Merriman v. Yutterman, supra, the supreme court held that “[T]he forty (40) foot driveway from Free Ferry Road, three hundred (300) feet Northward, shall be kept open for the common use of the devisees in this will” created an easement that was personal to the parties; it did not run with the land.
In Wilson v. Brown, the statement, “Grantor reserves unto himself a parking and driveway easement,” was held to create an easement that was appurtenant to the land. The court stated: “It stands to reason . . . that a development company would reserve the easement to run with the restaurant property so as to enhance its marketability. Indeed, it is illogical, as the chancellor concluded, to think that a development company was interested in an easement solely for personal use.” 320 Ark. at 245, 897 S.W.2d at 548. In Fort Smith Gas Co. v. Gean, 186 Ark. 573, 55 S.W.2d 63 (1932), and Field v. Morris, 88 Ark. 148, 114 S.W. 206 (1908), the supreme court held that easements limited to certain individuals were easements in gross.
In the instant case, the chancellor explained his reasoning:
After carefully reviewing the Post-Trial Briefs filed by the parties’ respective attorneys and having researched the issue of whether the easement in question is appurtenant or in gross, and based primarily upon the decision of the Arkansas Supreme Court in Riffle v. Worthen, 327 Ark. 470, 939 S.W.2d 294 (1997), due to the lack of words of inheritance in the granting clause of the Easement Document, the Court finds that an easement in gross was created and thus did not run with the land in the conveyance from Doyce and Peggye Winningham to Denny Lee and Rebecca Winningham. The use [of] the term “heirs and assigns” in the third paragraph of the Easement Document pertains to holding harmless the grantors against loss, damage or injury resulting from the use of the subject right of way and extends the liability of the grantees to their heirs and assigns. Likewise, the fourth paragraph of the Easement Document regarding the termination of the easement, merely extends the agreement regarding termination or abandonment to grantees, heirs and assigns.
In Riffle v. Worthen, supra, the Arkansas Supreme Court noted that the language of a quitclaim deed was clear and unambiguous when it stated, “Grantors also convey to the Grantees the right of ingress to and egress from said public road across the Grantors’ intervening lands.” However, the actual conveyance of the land stated, “Grantors ... do hereby grant, convey, sell and quitclaim unto . . . Grantees, and unto their heirs and assigns forever, all our right, tide, interest and claim in and to the foEowing lands lying in Pulaski County, Arkansas[.]” The Arkansas Supreme Court held that the use of the words “heirs and assigns forever” included in the granting clause of the conveyance of the land but absent in the clause conveying the easement indicated that the intent of the grantors was to convey only a personal right of access or an easement in gross.
In the instant case, the clause granting the easement across the Harris property contains the words “grant, to DOY CE WINNINGHAM AND PEGGYE WINNINGHAM, husband and wife the right to enter upon said lands . . . .” However, clauses later in the easement specifically name “DOYCE WINNINGHAM AND PEGGYE WINNINGHAM, Husband and wife their heirs and assigns forever . . . .” and “DOYCE WINNINGHAM AND PEGGYE WINNINGHAM, Husband and Wife . . . does for themselves, their successors and assigns hereby agree . . . Because these words of inheritance are included in some of the subsequent clauses in the easement but are missing in the actual granting clause indicates that the easement was intended to be personal to Doyce and Peggye Winningham. Thus, we find that the chancellor’s decision is not clearly erroneous or clearly against the preponderance of the evidence, and we affirm the decision that the easement at issue is an easement in gross.
Affirmed.
Pittman and Griffen, JJ., agree. | [
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Margaret Meads, Judge.
This case involves a dispute over a private-way easement. On May 8, 1963, the John Matthews Company filed of record in Pulaski County, Arkansas, a replat of Lot 16, Block 49, Lakewood, dividing it into Lots 16 and 17, and a plat and bill of assurance of Lot 17, Block 49, Lakewood that contained the following language:
Grantor herein, its successors and assigns, reserves a private way over and across the extreme northwest portion of Lot 17, Block 49, LAKEWOOD, which private way is more particularly described as, having a frontage of 29 feet, more or less, on the southeast fine of Shore Point Road, extending from Shore' Point Road easterly 16.5 feet along the south fine of said Lot 5, Block 50, thence southerly 56.2 feet across the west part of said Lot 17, Block 49, to the northeast corner of said Lot 16, Block 49, thence northwesterly 55 feet along the northeast line of said Lot 16, Block 49, to Shore Point Road, all as shown on said attached plat, which private way, being a part of said Lot 17, Block 49, LAKEWOOD, shall be forever appurtenant to and may be used as a private way or private road exclusively by the owners of said Lots 16 and/or 17, Block 49, LAKEWOOD, their heirs, successors and assigns forever.
Appellant, Viola Wilson, purchased Lot 16 in 1964 and used part of the common private way to construct a concrete driveway. Several years later, appellees, Fremont and Altha Johnston, purchased Lot 17 and, in constructing their own driveway, added on to the existing concrete drive appellant had built in the private way. A strip of land included in the private way, roughly ten feet wide and thirty feet long, was not paved and remains in its natural state. This strip of land (the “property”) is the focus of appellant’s lawsuit.
Over the years, appellant used the property to gain access to her backyard for various tasks such as moving sod and firewood to the backyard, delivering lumber for a shed, servicing the air conditioner, and bringing her riding lawn mower to the front yard. Appellees occasionally objected to such use and had asked that parked vehicles be moved off the property. Due to the ruts caused by service trucks and the frequent muddy condition of the property, appellant decided that she would pave the property. However, because appellees objected to her use of the property and to the paving, appellant filed a complaint for declaratory judgment and injunction in Pulaski County Chancery Court to determine her rights with regard to the property. She also requested that she be allowed to pave the remaining portion of the private way and to extend the privacy fence already in existence on her property.
After a hearing, the chancellor determined that although both parties used the property for driveways to their respective homes, for thirty-one years the property had been maintained as a “buffer,” and appellant could not utilize the property for anything other than a “buffer.” Appellant’s requests to pave the property and to extend her privacy fence were denied. Moreover, the chancellor found that appellees have the responsibility of maintaining the “buffer” and ordered that they could not take any action that would detrimentally affect appellant’s property. Appellant contends on appeal that the chancellor erred in narrowing the width of the private-way easement that was defined by metes and bounds in the recorded plat.
Although this court tries chancery cases de novo on the record, we will not reverse unless we determine that the chancery court’s findings of fact were clearly erroneous. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). Upon our de novo review, we hold that the chancellor was clearly erroneous in restricting appellant’s right to use the entire area of the easement as a private way.
An easement is a property right and as such is entitled to all the constitutional safeguards afforded to other property rights. Southwestern Bell Tel. Co. v. Davis, 247 Ark. 381, 445 S.W.2d 505 (1969). In general, an express easement may be created by a written instrument. Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987).
The grant of an easement normally will control its location if the location is specified therein. The grant should identify an easement’s location with specificity. In other words, the description of the easement requires such that a surveyor can go on the land and locate the easement from such description. . . .
25 Am. JuR.2d, Easements and Licenses § 74 (1996).
In addition, an appurtenant easement runs with the land and serves a parcel of land known as the dominant tenement, while the parcel of land on which the easement is imposed is known as the servient tenement. Winningham v. Harris, 64 Ark. App. 239, 981 S.W.2d 540 (1998). Thus, in this case we are concerned with an express easement, created by the metes and bounds description contained in the bill of assurance filed of record for Lot 17, Block 49, Lakewood. Because the land upon which the private way is located is owned by the appellees, their land is the servient tenement, and appellant’s private way is the dominant tenement.
Appellant argues that the chancellor erroneously applied the law pertaining to undefined easements in reaching his decision that appellant was not allowed to use the ten- by thirty-foot strip of property included in her private way; we agree.
Although we acknowledge that an easement that is not described by metes and bounds or defined with specificity is subject to “lines of reasonable enjoyment,” see, e.g., Howard v. Cramlet, 56 Ark. App. 171, 939 S.W.2d 858 (1997), that is not the situation in the case at bar. Here, there is an express easement specifically established by metes and bounds for use as a private way by both appellant and appellees, and the chancellor can neither diminish the area nor restrict the usage of this private way.
The chancellor also clearly erred in taking into consideration the fact that the area had not been constantly used by appellant as a means of ingress and egress to her backyard and in determining that the area was a “buffer.” We agree with the reasoning of the South Dakota Supreme Court in Salmon v. Bradshaw, 173 N.W.2d 281 (S.D. 1969), wherein the court held that owners of the servient tenement could not restrict the dominant tenement owner’s use of an express easement. The court ruled:
Plaintiffs are accordingly entided to the free and uninterrupted use and enjoyment of the entire easement area for the clearly expressed purposes of the grant. The includes the “last inch as well as the first inch.” It is immaterial whether or not plaintiffs made use of the full rights of the easement area in the past. Where “the language of the grant clearly gives the grantee a right in excess of the one actually used, such right would still exist notwithstanding the exercise of a lesser privilege.” An easement created by an express grant is not lost by mere nonuser or partial use.
173 N.W.2d at 285 (citations omitted).
For the reasons cited above, we find that appellant is entitled to use the entire area of the easement as a private way. The chancellor’s findings that the ten- by thirty-foot strip of property within the easement must be used as a “buffer” only and that appellant is not entitled to use the property as a private way are clearly erroneous; therefore, we reverse the chancellor on this point.
As to the chancellor’s denial of appellant’s request to pave the remainder of the private way, appellant has not cited to this court, and we have been unable to find, any law that would specifically allow her to pave the property. However, we note that appellant, as the owner of the dominant estate, is responsible for preparation, maintenance, improvements and repair of the way “in a manner and to an extent reasonably calculated to promote the purposes for which it was created . . . causing neither an undue burden upon the servient estate nor an unwarranted interference with the rights of common owners . . . .” Barraclough v. AP&L Co., 268 Ark. 1026, 1030, 597 S.W.2d 861, 863 (Ark. App. 1980) (citations omitted). Appellant, in addition,
has the right to do everything necessary to preserve the easement, and the right to repair a way is fully established . . . The question of what acts of repair are reasonable in the use and enjoyment of an easement is one of fact in each particular case, and depends on the extent and character of the lawful use of the easement. Craig v. O’Bryan, 227 Ark. 681, 686, 301 S.W.2d 18, 21 (1957) (citing Doan v. Allgood, 141 N.E. 779 (Ill. 1923)).
In Barraclough, supra, this court also pointed out that the general rule which provides that once the character of an easement is fixed, no material alterations can be made in the physical conditions which are essential to the proper enjoyment of the easement except by agreement, is a restriction on the owner of the servient estate rather than on the owner of the dominant estate. Thus, we hold the chancellor clearly erred in finding that appellees are responsible for maintaining the easement. Appellant is the one who bears this responsibility, and she may do whatever is necessary to preserve the easement, including reasonable repairs and improvements. As to the specific question of whether or not appellant may pave the remainder of the easement, we remand this issue to the chancellor to determine whether this is a reasonable repair.
As to the issue of whether appellant may place a fence along the edge of the private way, we cannot say the chancellor was clearly erroneous. As a general rule,
[A] grant of an easement or right of way does not, by implication, include the right to have such way kept open to the sky for light and air, and the grant is not interfered with by building over the way, provided there is no interference with reasonable use of the easement as a passageway. . . . Of course, if a structure is contrary to the terms of grant of way, it cannot lawfully be erected; if the grant shows an intention of the parties that the way should not be interfered with by overhead obstructions, such intent will be given effect.
25 Am. JuR.2d, Easements and Licenses § 99 (1996). Further, in the case of an easement by grant, the creation is evidenced by the language and circumstances of the grant, and the extent of the easement is to be ascertained from the language construed in the light of relevant circumstances. Jordan v. Guinn & Etheridge, 253 Ark. 315, 485 S.W.2d 715 (1972).
Here, the easement was granted as a private way for use by the owners of both Lots 16 and 17. The easement does not contemplate a fence being erected in conjunction with the parties’ use of the property as a private way. Moreover, if appellant were allowed to construct a fence, it would restrict appellees’ use of the property as a private way because the fence would block their access to the property and interfere with their reasonable use of the easement as a private way. Therefore, we affirm the chancellor on this issue.
Reversed in part; remanded in part; affirmed in part.
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John E. Jennings, Judge.
Douglas Jobe has appealed from the decision by the Workers’ Compensation Commission that denied his claim for workers’ compensation benefits based on a finding that Jobe’s incisional hernia injury caused by repetitious heavy lifting over a gradual period of time was not a “compensable injury” within the meaning of Ark. Code Ann. § 11-9— 102(5)(A)(ii)(a) (Supp. 1997). Jobe contends that the record does not contain a substantial basis for the decision denying his claim for benefits. We affirm.
Jobe worked for Wal-Mart in the shipping department at its warehouse distribution center in Searcy, Arkansas, and testified that he was in excellent health before September 6, 1994. Some four months or so before September 1994, Jobe transferred to the nonconveyable area. Production in the nonconveyable area con sisted of 125 boxes or pieces of merchandise per hour involving such cumbersome, large, and heavy items as air conditioners and home entertainment centers. Jobe testified that when he handled that merchandise it would frequently impact against his abdomen or stomach.
Sometime in 1989, Jobe underwent an appendectomy after his appendix ruptured. He denied suffering any residual pain or symptoms in his abdominal region after the 1989 appendectomy. Jobe could not identify a specific event or occurrence on September 6, 1994, that involved an injury. However, he testified that at one point during the day he went to the bathroom and noticed blood in his stool. He also noticed that he had to stop and rest on account of dizziness, which he thought was heat related. His sensation of fatigue and dizziness increased to the point that he was concerned about losing consciousness while driving home from work on September 6, 1994. While bathing at home after work that day, Jobe felt a sensation as if he had been struck in the stomach with a sledgehammer. That sensation was followed by severe rectal bleeding. He was rushed to the emergency room of Baptist Medical Center where he ultimately came under the care and treatment of Dr. Charles Rogers, Jr., a Little Rock surgeon, because of the bleeding in his GI tract.
Dr. Rogers eventually diagnosed Jobe’s condition as an inci-sional hernia caused by gradual deterioration of the tissue surrounding the old appendectomy incision and Jobe’s heavy lifting at Wal-Mart. Repeated surgical attempts to repair the condition have been tried without success. Jobe testified at the hearing before the Commission’s administrative law judge that he has undergone at least thirteen surgical procedures and has not worked since September 6, 1994. Dr. Rogers’ opinion concerning the nature, origin, and cause of Jobe’s condition and that it was caused by the heavy lifting done at Wal-Mart is not disputed in the record. However, the administrative law judge denied Jobe’s claim for temporary total disability benefits from September 6, 1994, to a date yet to be determined, as well as his claim for medical benefits associated with his incisional hernia. The ALJ found that Jobe’s injury was neither a hernia within the meaning of Ark. Code Ann. § 11-9-523 nor a gradual-onset compensable injury caused by rapid repetitive motion within the meaning of Ark. Code Ann. § 11-9-102(5)(A)(ii)(a). The Commission affirmed and adopted that decision.
When the Commission denies coverage because a worker has failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission if its opinion displays a substantial basis for the denial of relief. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997). In determining the sufficiency of the evidence to sustain the findings of the Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988).
The Commission held that the claim is controlled by the definition of “compensable injury” found in the Workers’ Compensation Law as it was revised by Act 796 of 1993. That definition is codified at § 11-9-102(5)(A) and reads, in pertinent part, as follows:
“Compensable injury” means:
(i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence;
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition;
(ib) A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence;
(c) Hearing loss which is not caused by a specific incident or which is not identifiable by time and place of occurrence;
(iii) Mental illness as set out in § 11-9-113;
(iv) Heart, cardiovascular injury, accident, or disease as set out in § 11-9-114;
(v) A hernia as set out in § 11-9-523.
Both parties acknowledge that appellant’s injury does not meet the requirements for a hernia injury as set out in § 11-9-523, and that it does not constitute an “accidental” injury (meaning one caused by a specific incident and identifiable by time and place of occurrence) within the meaning of § 11-9-102(5)(A)(i). Thus, we must review the Commission’s decision to determine whether the record provides a substantial basis for its finding that Jobe failed to prove that the incisional hernia caused by gradual heavy lifting at Wal-Mart was a compensable injury caused by rapid repetitive motion.
The Commission adopted the opinion of the ALJ that relied upon Jobe’s testimony that the production schedule required him to handle 125 nonconveyable items per hour. Jobe testified that the work was not rapid, that it was too slow for him, and that he was accustomed to faster work on a conveyor line where merchandise was back to back. Based upon that testimony, the Commission concluded that Jobe failed to prove that his incisional hernia was caused by rapid repetitive motion; his work was repetitive but not rapid. We have previously observed that rapid repetitive motion claims require proof that tasks associated with an injury be repetitive and that the repetitive motion be rapid. Lay v. United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 867 (1997).
In our view, the Commission’s opinion displays a substantial basis for its denial of the relief sought.
Affirmed.
Bird and Roaf, JJ., agree.
Griffen, J., concurs.
Pittman and Neal, JJ., dissent. | [
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Judith Rogers, Judge.
Appellant is appealing from the revocation of his suspended sentence. On appeal, he argues that the trial court erred in sentencing him to serve more than the time remaining on the original sentence imposed by the trial court. We affirm.
On February 2, 1995, appellant entered a plea of guilty to breaking or entering. An order entitled “Judgment and Commitment Suspended Sentence” entered on February 8, 1995, provided:
[Appellant] is hereby sentenced to serve a term of (5) five years in the Arkansas Department of Correction.
However, imposition of sentence is suspended conditioned on [appellant’s] paying the fine and court cost ordered herein, and [appellant] is placed under the supervision of a probation officer of the Adult Probation Department, and [appellant] shall comply with their rules and regulations and with all conditions or probation prescribed by the Court.
The trial court then entered a subsequent order purporting to amend the previous order on the State’s motion to convert the fine to restitution payments.
On July 31, 1996, the State filed a petition to revoke. On December 16, 1996, appellant entered a guilty plea to the petition, and the trial court sentenced him to five years, with imposition of the sentence suspended.
On August 4, 1997, the State filed another petition to revoke. After a revocation hearing, the trial court concluded that appellant had violated the conditions of his suspended sentence and sentenced him to the Arkansas Department of Correction for the balance of the suspended sentence imposed on December 16.
Appellant’s sole argument on appeal is that his current sentence is illegal because the trial court actually imposed a sentence and then suspended execution of the sentence in the February 1995 order. He contends that as a consequence any sentence imposed upon revocation was limited to the remainder of the sen tence imposed in 1995, rather than the balance of the suspended sentence imposed in December 1996. We address only appellant’s specific argument on appeal.
Appellant relies on the holding in Lewis v. State, 62 Ark. App. 150, 970 S.W.2d 299 (1998), as support for his argument. However, that opinion was reversed by the Arkansas Supreme Court in Lewis v. State, 336 Ark. 469, 986 S.W.2d 95 (1999). The defendant in Lewis entered a plea of guilty pursuant to Act 346 of 1975, the First Offenders Act, codified at Ark. Code Ann. § 16-93-303 (Supp. 1997). His punishment was “fixed at three (3) years in the Arkansas Department of Correction, with imposition of said sentence suspended” conditioned on Lewis’s compliance with the terms of supervised probation. Upon revocation, the trial court sentenced Lewis to ten years of imprisonment, with seven years suspended.
Lewis argued that the sentence imposed was illegal because the trial court sentenced him to a period of imprisonment greater than the fixed term remaining on the suspended sentence. His argument was based on the premise that the trial court actually sentenced him to three years of imprisonment rather than placing him on probation, and that because the trial court then suspended the three-year sentence, it could not later revoke the suspended sentence and impose a new sentence.
The supreme court held that Lewis clearly entered his guilty plea pursuant to the probation terms under Act 346, and was given probation conditions that specifically referred to the act under which no adjudication of guilt or sentence is imposed. The court further noted that although Lewis’s original order indicated that the three-year term was “fixed” by the trial court, the order provided that imposition of sentence was suspended — not that execution of the sentence was suspended. The court held that the trial court correctly sentenced Lewis since once the State was able to show by a preponderance of the evidence that Lewis failed to comply with the conditions of his probation, the trial court was authorized to impose any sentence on him that might have been imposed originally for the offense of which he was found guilty. See Ark. Code Ann. § 5-4-309 (d) and (f) (Repl. 1997).
Judgments are generally construed like other instruments; the determinative factor is the intention of the court, gathered from the judgment itself and the record, including the pleadings and the evidence. DeHart v. State, 312 Ark. 323, 849 S.W.2d 497(1993). In the case at bar, the 1995 order indicated that imposition of sentence was suspended — not that execution of the sentence was suspended, and that the suspension was conditioned upon appellant’s compliance with certain terms. Here, as in Lewis, the trial court’s usage of the language suspended imposition of sentence reveals that the trial court intended no sentence to be entered, and showed only that appellant was required to comply with the conditions of his suspended sentence. See Lewis, 336 Ark. at 475, 986 S.W.2d at 99. Thus, we conclude that it was the intention of the trial court to suspend imposition of appellant’s sentence, not impose an actual sentence.
Appellant entered a plea of guilty to a class D felony, breaking or entering, for which the term of imprisonment is not more than six years. See Ark. Code Ann. § 5-4-401 (a) (5). Thus, consistent with § 5-4-309 (f), the trial court properly sentenced appellant to forty-seven months and nineteen days of imprisonment, a term less than the six years to which it could have originally sentenced him.
Affirmed.
Hart and Stroud, JJ., agree. | [
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SAm Bird, Judge.
Pierre Weaver was charged with three counts of exposing another person to HIV in violation of Ark. Code Ann. § 5-14-123 (Repl. 1993). He was found guilty of one count and was sentenced to thirty years in the Arkansas Department of Correction. That case was affirmed by this court. See Weaver v. State, 56 Ark. App. 104, 939 S.W.2d 316 (1997). Before a trial was held on the remaining two counts, appellant filed a motion to suppress his medical records that he alleged were obtained in violation of the Arkansas Rules of Criminal Procedure 16.2, Rule 503 of the Arkansas Rules of Evidence, and the state and federal constitutions. The court denied the motion, and, pursuant to Ark. R. Crim. P. 24.3, the appellant entered a conditional plea of guilty. He was sentenced to thirty years on each count to be served concurrently and also concurrent to the previous thirty-year sentence on the other conviction. He brings this appeal arguing that the court erred in denying his motion to suppress the introduction of his medical records.
After two people tested positive for HIV and reported that they believed they had contracted it from appellant, he became a suspect, and the Sebastian County Prosecuting Attorney drafted a prosecutor’s subpoena to obtain appellant’s medical records from the Sebastian County Health Department.
A hearing was held on his motion to suppress, and Archie Goins, an officer with the Fort Smith Police Department, testified that the prosecuting attorney had asked him to pick up the medical records of the appellant by serving the subpoena on the Sebastian County Department of Health. He stated that the department accepted a subpoena and later called him to pick up a packet containing the records, and that he delivered the sealed packet to the prosecuting attorney’s office. He said that the prosecutor was the one who issued the subpoena and who directed him to obtain the records.
Appellant argues that the medical records were illegally obtained in violation of his Fourth Amendment rights because the State did not procure the records with a valid search warrant. Appellant also argues that the prosecutor abused her subpoena power. We disagree and hold that the court’s ruling denying the motion to suppress was not clearly against the preponderance of the evidence because a search warrant was not needed in this case. The prosecutor obtained the information through the proper use of the prosecutor’s subpoena power. The General Assembly has stated that this particular kind of information can be obtained by a prosecutor by using a subpoena. Ark. Code Ann. § 20-15-904 (Repl. 1991).
When reviewing a denial of a motion to suppress, this court must make an independent determination based upon the totality of the circumstances. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998); Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998); Muhammad v. State, 64 Ark. App. 352, 984 S.W.2d 822 (1998). We reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Green v. State, Thompson v. State, Muhammad v. State, supra. In making this determination, we view the evidence in the light most favorable to the State. Green v. State, Thompson v. State, Muhammad v. State, supra.
Arkansas Code Annotated section 16-43-212(a) (1987) states:
(a) The prosecuting attorneys and their deputies may issue subpoenas in all criminal matters they are investigating and may administer oaths for the purpose of taking the testimony of witnesses subpoenaed before them. Such oath when administered by the prosecuting attorney or his deputy shall have the same effect as if administered by the foreman of the grand jury.
The subpoena power of the prosecuting attorney was statutorily created by the General Assembly to implement the power of prosecutors to bring criminal charges by information. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). It was designed to take the place of a grand jury. Id. The emergency clause of the statute states that it was enacted to enable prosecutors to properly prepare criminal cases. Id. Prosecuting attorneys have an affirmative duty to investigate crime. Streett v. Stell, 254 Ark. 656, 495 S.W.2d 846 (1973). The prosecutor’s power to subpoena must be used only for a prosecutor’s investigation. State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986). The police do not have the authority to issue subpoenas. Id. The prosecutor’s power to subpoena must only be used as an investigatory tool and not as a tool for a police investigation. Id. In Echols v. State, supra, the prosecutor subpoenaed school records of one of the appellants. The court found that he did so in order to investigate and prepare for trial. Therefore, he did not abuse his subpoena power.
In the case at bar, Goins testified that the records were not subpoenaed for police purposes, but that he merely acted as a courier by delivering the subpoena to the health department and by delivering the records to the prosecutor’s officer. The prosecutor stated that she had subpoenaed the records in order to investigate reports that the appellant had exposed others to the HIV virus in violation of Ark. Code Ann. § 5-14-123. Because the prosecu tor used the subpoena as a tool for her investigation, and not for police purposes, we cannot say that the court erred in denying appellant’s motion to suppress.
A search warrant in this case was not needed since a prosecutor is at liberty to procure such information through the use of a subpoena. Arkansas Code Annotated § 20-15-904 states:
(a) A person with Acquired Immunodeficiency Syndrome (AIDS) or who tests positive for the presence of Human Immunodeficiency Virus (HIV) antigen or antibodies is infectious to others through the exchange of body fluids during sexual intercourse and through the parenteral transfer of blood or blood products and under these circumstances is a danger to the public.
(b) A physician whose patient is determined to have Acquired Immunodeficiency Syndrome (AIDS) or who tests positive for the presence of Human Immunodeficiency Virus (HIV) antigen or antibodies shall immediately make a report to the Arkansas Department of Health in such manner and form as the department shall direct.
(c) All information and reports in connection with persons suffering from or suspected to be suffering from the diseases specified in this section shall be regarded as confidential by any and every person, body, or committee whose duty it is or may be to obtain, make, transmit, and receive such information and reports. However, any prosecuting attorney of this state may subpoena such information as may be necessary to enforce the provisions of this section and 5-14-123 and 16-82-101, provided that any information acquired pursuant to such subpoena shall not be disclosed except to the courts to enforce the provisions of this section. (Emphasis added.)
Because the prosecutor was investigating a crime, and because the General Assembly has stated that prosecuting attorneys are privy to the information in the medical records when investigating cases involving HIV exposure in violation of Ark. Code Ann. § 5-14-123, we hold that a search warrant was not needed; therefore, the court did not err in denying the appellant’s motion to suppress.
Affirmed.
Neal and Crabtree, JJ., agree.
The appellant did not object to the introduction of his medical records when they were entered into evidence at the trial in which he was found guilty of one count. See Weaver v. State, supra. | [
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Margaret Meads, Judge.
Appellant, Bill Crawford d/b/a Crawford Builders, Inc., appeals from an order granting summary judgment to appellees.
On November 16, 1995, appellant signed a contract with James Culp, Superintendent of the Lee Country School District, for asbestos abatement and soffit covering at Strong Elementary School. Appellant agreed to do the work for the sum of $27,500. On May 31, 1996, appellant filed a complaint in chancery court for specific performance alleging that he began performance of the parties’ contract on November 30, 1996, and finished the contract within a reasonable time thereafter. He also alleged that appellees were indebted to him in the amount of $27,500, plus interest, had breached the contract by failing to pay for the work performed, and had been unjustly enriched by their failure to pay. On September 26, 1996, the suit was transferred to circuit court. Appellees filed a motion for summary judgment on May 15, 1997, and the motion was granted. On appeal, appellant argues that the trial court erred in granting summary judgment because (1) appellees failed to meet their burden of proof pursuant to Ark. R. Civ. P. 56; (2) appellant was not allowed to depose appellees pursuant to Ark. R. Civ. P. 30; and (3) the Lee County School Board had ratified the contract.
Summary judgment is authorized by Ark. R. Civ. P. 56(c) when the “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact.” It is well setded that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact, and the moving party is entided to judgment as a matter of law. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). In considering a motion for summary judgment, the court views the facts in the fight most favorable to the party against whom the judgment is sought; all inferences are drawn against the moving party. Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990). Once a moving party establishes 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 genuine issue of material fact. Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997).
Appellant’s complaint alleged breach of contract and unjust enrichment. In their motion for summary judgment, appellees averred that the alleged contract was void and unenforceable. They admitted that James Culp signed the purported contract and that appellant began performance, but asserted that the alleged contract was not presented to the Board of Directors of the Lee County School District until their January 1996 meeting, at which time the Board declined to approve the contract. Appellees also asserted that appellant failed to post the bond Arkansas law requires from a contractor doing work on a public building.
Attached to appellees’ motion were the affidavits of James Culp and J. Harvey Shaw, president of the Lee County School Board. Mr. Culp asserted that during November 1995, contractors were performing roofing work on Strong Elementary School; that appellant was the lowest bidder to remove asbestos material and soffit covering the school; that he intended to present the contract to the school board at its December meeting, but because of illness did not do so until January; that he told appellant that the contract was contingent upon school board approval, but appellant began work without contacting him to determine whether approval had been obtained; that appellant removed the asbestos and soffit material, but did not replace it with vinyl or aluminum; and that appellant failed to post a bond with the school board prior to beginning work. Mr. Shaw asserted that appellant removed the soffit material, but the project was incomplete because the outer covering was not replaced; that appellant failed to post bond prior to beginning work; that the first time the school board became aware that appellant had performed work was at the January 1996 meeting; and that the board declined to approve the contract because work had been started without school board authority.
At the hearing on appellees’ motion, appellant argued that his complaint alleged both breach of contract and unjust enrichment. He argued that the contract was ratified by the school board in that its members knew the work was being done and had hired a quality-control agent to oversee appellant’s work. Appellant asserted that while the work was being done, appellees in effect sat back and watched, and appellees received a benefit by having the asbestos removed. He further argued that appellees do not dispute that they were unjustly enriched by appellant’s work, that there had been no objection to his claim of unjust enrichment, and that the claim had not been challenged. Appellant said that he wanted to proceed on his claim for unjust enrichment and breach of contract, and that he should be paid.
On November 18, 1997, the trial court entered an order granting summary judgment on the finding that the contract was not valid or enforceable because it was not approved or ratified by the school board and no bond was provided. Appellant’s complaint was dismissed with prejudice.
We first address appellant’s second argument on appeal. Appellant argues that the trial court erred in granting summary judgment because he was not allowed to depose appellees pursuant to Ark. R. Civ. P. 30. Appellant says that on January 21 and March 31, 1997, he requested that appellees be made available for deposition on three alternate dates; that appellees’ counsel would not allow the depositions to be taken before the summary-judgment motion was decided; and that because his request was denied he was not allowed to proceed further in the development of his case.
In support of his argument, appellant relies on First National Bank v. Newport Hospital & Clinic, Inc., 281 Ark. 332, 663 S.W.2d 742 (1984), a medical malpractice case in which our supreme court held that the trial court erred in granting summary judgment before discovery was complete. However, in that case the supreme court stated that there was no suggestion of a lack of diligence in discovery efforts. Here, appellant filed a motion on May 15, 1997, which requested among other things that the court order appellees to be made available for depositions. In their response and brief in support of that response, appellees admitted that there had been several requests for discovery. However, appellant failed to obtain a ruling on this issue. Moreover, no hearing was held or further motions submitted on the issue of discovery, and appellant failed to bring up the matter of discovery in either his response to appellees’ motion for summary judgment or at the hearing on the motion. The burden of obtaining a ruling is on the movant, and objections and matters left unresolved in the trial court are waived and may not be relied upon on appeal. Carpetland of N.W. Ark., Inc. v. Howard, 304 Ark. 420, 803 S.W.2d 512 (1991).
Further, appellant failed to file an affidavit substantiating the fact that he was having problems gathering facts to support his opposition to summary judgment, as provided under Ark. R. Civ. P. 56(f). Had he done so, the trial court might well have postponed a decision on summary judgment pursuant to Rule 56(f) so that the depositions could have been taken. See Jenkins v. International Paper Co., Inc., 318 Ark. 663, 887 S.W.2d 300 (1994).
Appellant’s first and third arguments are related. Appellant’s first argument is that the trial court erred in granting summary judgment because appellees failed to meet their burden of proof. We first address this argument with respect to appellant’s claim for breach of contract, and we address his third argument regarding ratification under this point.
Appellant’s argument, as we understand it, is that the trial court erred in granting summary judgment on the breach-of-contract issue because there was a question of fact regarding whether the Lee County School Board ratified the contract. Appellant contends that he put forth sufficient facts to dispute appellees’ allegation that they were not aware that the work was being done. He says the work was performed outside, and appellees were able to see him doing the work. Further, appellant argues that to ensure appellant was doing the work contracted for, appellees contracted with and paid Murdock Enterprises for quality-control services for asbestos abatement. Therefore, according to appellant, one can only conclude that appellees knew work was being performed by appellant. We do not agree that appellees failed to meet their burden of proof in regard to appellant’s contract claim.
In affidavits attached to their motion for summary judgment, appellees averred that roofing work was being done at the school during November 1995, and that the school board did not become aware of appellant’s activities at the school until their January 1996 meeting. Appellant filed no affidavits, depositions, or other proof on this issue. Thus, appellant failed to meet proof with proof and demonstrate the existence of a genuine issue of material fact on this issue.
In regard to appellant’s argument that appellees contracted with Murdock Enterprises for quality-control services for asbestos abatement, there is nothing to confirm that this contract was entered into by appellees. In appellant’s brief in support of his response to appellees’ motion for summary judgment, appellant states that appellees hired a quality-control agent to supervise or monitor the work being done by appellant. Attached to the brief is a purported contract for quality-control services for asbestos abatement at Strong Elementary School. The services were to include evaluation of “AHERA” management plan, review of sited areas, coordination of bid proceedings, and a final report upon project completion. Also attached to the brief are several checks to Murdock Enterprises from appellees. However, these documents are neither verified nor attested to; the purported contract bears no signatures; and the checks predate appellant’s contract with appellee.
Therefore, we cannot find that the trial court erred in granting summary judgment on the issue of breach of contract. However, that does not dispose of the argument regarding appellant’s claim of unjust enrichment.
In City of Damascus v. Bivens, 291 Ark. 600, 602-03, 726 S.W.2d 677, 679 (1987), our supreme court stated:
We find that the unjust enrichment principle is firmly embedded in Arkansas law in the context of work performed pursuant to illegal contracts made by political subdivisions such as cities and counties. We alluded to it as recently as 1980 in a case where we ultimately found a valid contract to exist. McCuistion v. City of Siloam Springs, 268 Ark. 148, 594 S.W.2d 233 (1980). We have permitted restitution based on unjust enrichment even when the associated contract was “void.” City of Little Rock v. The White Co., 193 Ark. 837, 103 S.W.2d 58 (1937); International Harvester Company v. Searcy County, 136 Ark. 209, 206 S.W. 312 (1919). Cf. Revis v. Harris, 219 Ark. 586, 243S.W.2d 747 (1951).
Further, a claim in quantum meruit is generally made under the legal theory of unjust enrichment and does not involve the enforcement of a contract, and a quantum meruit claim can succeed even when it is argued, in the alternative, pursuant to a contract that has been declared void. Sanders v. Bradley Cty. Human Servs. Pub. Fac. Bd., 330 Ark. 675, 956 S.W.2d 187 (1997). Our supreme court has allowed quantum meruit recovery after a contract with a government entity was declared invalid, Damascus, supra, and where a county kept purchase money for material purchased, retained ownership of the materials and, as a bar to recovery, asserted that no appropriation had been made. Yaffe Iron & Metal Co. v. Pulaski County, 188 Ark. 808, 67 S.W.2d 1017 (1934). In order for the legal theory of unjust enrichment to pertain, there must be some enrichment or benefit to the party against whom the claim is made. Sanders, supra.
Here, appellant alleged that he had performed the work called for by the contract. Appellees presented no proof on this issue and failed to address it in their summary-judgment motion. See Sublett, supra. Indeed, not only did appellees fail to challenge appellant’s unjust enrichment claim in their motion, but Mr. Culp’s affidavit submitted in support of the motion asserted that appellant removed the asbestos and soffit material, and Mr. Shaw’s affidavit also asserted that appellant removed the soffit material. We therefore reverse and remand for trial on appellant’s claim of unjust enrichment.
Affirmed in part; reversed and remanded in part.
Robbins, C.J., and Stroud, J., agree. | [
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John B. Robbins, Chief Judge.
Appellant Cathy Need-ham appeals the Workers’ Compensation Commission’s denial of permanent partial disability, wage loss, and additional benefits pursuant to Ark. Code Ann. § ll-9-505(a) (Repl. 1996), arguing that there is no substantial basis for the denial of the claim. We disagree with her arguments and affirm the Commission.
Appellant worked for appellee Harvest Foods at its store in Batesville, Arkansas, when she suffered a cervical injury at C6-7 in an automobile accident on June 29, 1993. She healed from that off-the-job injury and returned to work in January 1994. On May 6, 1994, she was injured at work while lifting a twenty-pound bag of dog food. A small compression fracture was located at C7. Though controverted on the basis that it was a recurrence of the old injury, the claim was later determined to be a compen-sable aggravation of the prior injury, and benefits were awarded that flowed from the claim. During the controversion of compen-sability, appellee declined to return appellant to work because its position was that this was not work related and that the union contract mandated that employees injured off the job would not be returned to work if they had restrictions. Upon a finding that the injury was compensable, the administrative law judge awarded appellee all reasonably related medical expenses, temporary total disability, permanent partial disability, and wage loss. Though requested, she did not receive additional benefits pursuant to Ark. Code Ann. § 11-9-505(a). She appealed to the Commission, and appellee cross appealed. The Commission reversed the administrative law judge in part, holding that appellant was not entitled to permanent partial disability benefits or wage-loss benefits, but affirmed denial of additional benefits under § ll-9-505(a). She appeals.
When reviewing decisions 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 uphold those findings if they are supported by substantial evidence. Toney v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different result than the one reached by the Commission or whether the evidence would have supported a contrary finding. Hope Livestock Auction Co. v. Knighton, 62 Ark. App. 74, 966 S.W.2d 943 (1998). If reasonable minds could reach the result shown by the Commission’s decision, we must affirm the decision. Id. We find there to be a substantial basis for the denial of appellant’s claim.
Appellant argues that the Commission erroneously denied her additional compensation. The statute in question is Ark. Code Ann. § ll-9-505(a), entitled Additional Compensation — Rehabilitation, which states:
(a)(1) Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee’s physical and mental limitations, upon order of the commission, and in addition to other benefits, shall be Hable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of such refusal, for a period not exceeding one (1) year.
(2) In determining the availability of employment, the continuance in business of the employer shall be considered, and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall control.
Before Ark. Code Ann. § ll-9-505(a) applies, several requirements must be met. The employee must prove by a preponderance of the evidence that he sustained a compensable injury; that suitable employment that is within his physical and mental limitations is available with the employer; that the employer has refused to return him to work; and that the employer’s refusal to return him to work is without reasonable cause. Toney, supra.
The Commission denied her these additional benefits because it found that appellee had a good-faith belief that appellant’s current injury was a recurrence of the injuries received in her earlier non-work related motor vehicle accident. The Commission further found that appellee was a party to a union contract that contained a provision that an injured employee must be released without restrictions for full duty before being eligible for reinstatement, because light-duty work was limited to employees with work-related injuries. While on appeal the parties argue whether the subject provision of the collective bargaining agreement was properly proven or conceded, inasmuch as the agreement was not made part of the record, we fail to see its relevance.
First, the contract provision as found by the Commission merely requires that fight-duty work for injured employees be given only to employees who were injured in job-related inci dents. Likewise, § ll-9-505(a)(l) is applicable only to employees who were “injured in the course of employment.” Thus, the union contract did not provide any greater cause for refusing to return appellant to a light-duty job than the statute does. Secondly, the requirement of § ll-9-505(a)(2) that the provisions of any collective bargaining agreement must be taken into account in determining whether suitable employment for an injured employee is available only pertains to the matter of seniority. The issue of seniority was not addressed in the union contract provision argued before the Commission. Consequently, the union contract is simply irrelevant for purposes of this appeal.
There is, however, substantial evidence in the record to support the Commission’s finding that the appellee did not refuse appellant fight-duty work without reasonable cause. Although appellee had contested the compensability of appellant’s May 6, 1994, injury on the ground that this injury was not incurred in the course of appellant’s employment, controversion of the compensability of an employee’s injury, alone, does not establish a reasonable cause for refusing to return an injured employee to work as provided by § 11-9-505(a)(1). The reason or reasons for controverting the compensability of an employee’s claim must be reasonable. Here, the Commission had before it the report of Dr. C. Lowry Barnes, who examined appellant at the request of appellee within a week of her May 6 injury, which stated:
I explained to her that I was unsure whether or not this would be covered under workers’ compensation, as this seems to be the same problem that she has had previously. She actually said that she did not initially think that it was worker’s comp and wanted to see her own doctor, but she was asked to see the “company doctor.”
Consequently, we hold that there was substantial evidence before the Commission that supports its finding that appellee had reasonable cause in refusing to return appellant to a light-duty position following her injury, notwithstanding the fact that the injury was subsequently determined to be compensable.
Appellant next argues that there is no substantial basis to support the denial of permanent partial and wage-loss disability benefits. We disagree. Her physician had given her a four percent anatomical rating to the body as a whole due solely to a non-operable herniated disc at C6-7. The car accident, by appellant’s testimony, “totaled” her car after being struck from the rear and ruptured a disc in her neck. The doctor’s notes indicate: “It is my opinion that Ms. Needham has a partial permanent impairment related to the C6-7 disc. This is a non-operative condition from which she has residuals. Her partial permanent impairment rating would be 4% for a nonoperatively treated herniated disc.” “She does have residuals of her herniation and a partial permanent impairment rating of 4% related to a nonoperatively treated cervical herniated disc.” “Concerning the causalgia of her current problems, it is a combination of a disc injury followed by a compression fractures [sic]. There are 2 specific injuries.” Because this herniation predated the compensable aggravation and because this rating is for the non-work-related event, there was substantial evidence upon which to deny any permanent partial impairment rating.
Because we find that there is a substantial basis to deny permanent partial disability benefits, we need not address appellant’s argument regarding wage-loss disability benefits. In order to be entitled to any wage-loss disability in excess of permanent physical impairment, the claimant must first prove by a preponderance of the evidence that she sustained permanent physical impairment as a result of the compensable injury. Ark. Code Ann. §11-9-102(F)(ii)(a); see Smith v. Gerber Prods., 54 Ark. App. 57, 922 S.W.2d 365 (1996).
Affirmed.
Neal and Crabtree, JJ., agree. | [
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Andree Layton Roaf, Judge.
Derrick L. Allen was convicted in a bench trial of second-degree battery and resisting arrest, stemming from an altercation that he had with North Little Rock police officers. For the felony battery offense, he received three years’ probation and 120 days in the Pulaski County Jail, to run concurrent with a nine-month sentence imposed by the trial court for the misdemeanor resisting-arrest offense. Allen’s sole point on appeal is that the evidence was insufficient to sustain his second-degree battery conviction. We agree, and affirm as modified.
On the evening of September 12, 1996, Allen, a seventeen-year-old senior at North Little Rock High School West campus, attended a North Little Rock High School East campus football game wearing sunglasses and headphones. Ken Kirspel, principal of the East campus, and Gary Goss, the athletic director, advised Allen of a school policy that prohibited wearing sunglasses and headphones on school grounds. Allen initially removed his sunglasses and headphones, but later put them back on. When Kir-spel and Goss subsequently encountered Allen again wearing the prohibited items, they informed him that he would have to leave the game.
Allen refused to comply, and several uniformed, off-duty North Little Rock police officers came to assist them. Because a nearby exit gate was locked, the officers attempted to lead Allen to another exit through the stadium manager’s office. A struggle ensued in the office when the officers attempted to place Allen under arrest. Before he was subdued, Allen got one arm free and raised it in a threatening maimer; one officer testified that he saw Allen strike Officer James Bona, the victim of the battery, on the top of his head.
During the altercation, Officer Bona sustained several abrasions to his upper forehead that he described as “oozing” blood. While acknowledging that he did not notice the injury until it was called to his attention by other officers and that the injury did not cause him to be unable to perform his duties, he nonetheless described the pain from his injuries as “stinging pretty good.” Officer Bona was later examined at a hospital, but did not receive stitches or pain medication for his injuries.
When Allen moved for directed verdict at the conclusion of the State’s evidence, the trial court denied the motion, finding that Officer Bona suffered an impairment of physical condition because he had to stop what he was doing and go to the hospital.
On appeal, Allen argues that the evidence was insufficient to establish that he caused physical injury to Officer Bona. Relying on Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983), Allen asserts that the evidence is insufficient to sustain his conviction because Officer Bona’s description of his pain indicated that it was not substantial, that he did not require medical treatment, and that he opined that the injury did not render him unable to perform his duties.
In resolving the question of the sufficiency of the evidence in a criminal case, this court views the evidence in the light most favorable to the State and affirms the judgment if there is any substantial evidence to support the finding of the trier of fact. Armstrong v. State, 35 Ark. App. 188, 816 S.W.2d 620 (1991). 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. In order for the court to have found Allen guilty of second-degree battery in violation of Ark. Code Ann. § 5-13-202(a)(4)(A) (Repl. 1997), the State was required to prove: “(4) [H]e intentionally or knowingly without legal justification cause[d] physical injury to one he knows to be: (A) [a] law enforcement officer . . . while such officer ... is acting in the fine of duty . . . .”
Arkansas Code Annotated section 5-1-102(14) (Repl. 1997) defines “physical injury” as the impairment of physical condition or the infliction of substantial pain. Pain is a subjective matter and difficult to measure from testimony. Sykes v. State, 57 Ark. App. 5, 940 S.W.2d 888 (1997). In determining whether an injury inflicts substantial pain, the fact-finder must consider all of the testimony and may consider the severity of the attack and the sensitivity of the area of the body to which the injury is inflicted. Id. The fact-finder is not required to set aside its common knowledge and may consider the evidence in fight of its observations and experiences in the affairs of fife. Id.
First, Kelly v. State, supra, is clearly analogous. In that case, this court found the evidence insufficient to support a jury verdict convicting the defendant of battery in the third degree because the evidence did not show that the injuries to the victim caused him “substantial pain,” or “impairment, ” where the injury did not require medical attention and was described by one witness as a “fingernail scratch.” 7 Ark. App. at 136, 644 S.W.2d at 642. In Kelly, the victim suffered his injury when the defendant stabbed him in the shoulder through his clothes. Id. The case is silent as to whether the victim testified as to how painful the injury actually was. Certainly the injury in the instant case is no more extensive than the knife wound in Kelly.
By comparison, in Johnson v. State, 28 Ark. App. 256, 773 S.W.2d 450 (1989), this court upheld a battery conviction by finding that a police officer had sustained a physical injury by virtue of the infliction of substantial pain despite his only injury being what a doctor described as a “superficial abrasion” to his little finger. As in the instant case, the officer had sought a medical examination of the injury after the incident and resumed his duties afterward. However, Johnson is readily distinguishable from the instant case by the severity of the injuries. In Johnson, the victim testified that the defendant took his left hand and beat it against the pavement “five, six, seven times,” and that “the pain was intense.” 28 Ark. App. at 257, 773 S.W.2d at 451. Further, the pain actually affected the officer’s job performance, as he testified, “When the pain got to me I had to turn loose of his hand,” and stated that he was required to wear a splint for two days, did not regain full use of his finger for a week, and could write only with pain. Id. By comparison, Officer Bona testified that he did not even notice the injury until after Allen had been subdued and his fellow officers called his attention to it. The injury did not impair Officer Bona in his job performance. The fact that he had to have his injury checked at the hospital was apparently not even his idea, but rather required by his supervisor, and the only reason that he did not return to the stadium after finishing at the hospital was because the game was over. Here, in denying Allen’s “directed verdict” motion, the trial court found only that Officer Bona suffered a physical impairment under the meaning of the statute because he had to leave the job site and declined to find that he suffered substantial pain. While the State correctly contends that pain is a subjective matter and that bruises and scrapes can cause substantial pain, significandy, neither Officer Bona nor the trial court characterized this injury as causing substantial pain. Further, we cannot say from the record before us that the testimony describing the injury and the pain associated with it rises to the level of “infliction of substantial pain.”
Moreover, there is also insufficient evidence to support a finding of impairment of physical condition. Although there are no reported cases in which the affirmance of a battery conviction is based solely on this alternative means of establishing physical injury, this court found sufficient evidence of both the infliction of substantial pain and the impairment of physical condition in Hundley v. State, 22 Ark. App. 239, 738 S.W.2d 107 (1987). In Hundley, the victim, a police officer, was stabbed completely through the shoulder with a three-inch knife and testified that afterward he felt faint, experienced chest pains and difficulty in breathing, and sought treatment at an infirmary. This court held that these symptoms, in addition to evidencing substantial pain, showed the “temporary impairment of physical condition.” 22 Ark. App. at 243, 738 S.W.2d at 110. In the instant case, we have no symptoms whatsoever on which to base a finding of impairment.
As far as considering the evidence in fight of the factors fisted in Sykes v. State, supra, the severity of the attack and the sensitivity of the area of the body to which the injury is inflicted, it is significant that Officer Bona did not even remember being struck by Allen. Accordingly, we have here only a scuffle involving at most a single blow, and Allen’s conduct, while unlawful, was hardly a severe attack.
As to the disposition of this case, in Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994) the supreme court stated,
[w]here the evidence presented is insufficient to sustain a conviction for a certain crime, but where there is sufficient evidence to sustain a conviction for a lesser included offense of that crime, this court may “reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it ... at some intermediate point, remand the case to the trial court for the assessment of the penalty, or grant a new trial either absolutely or conditionally.
The evidence in this case would clearly sustain a conviction for assault in the second degree. Arkansas Code Annotated section 5-13-206 (Repl. 1997) provides:
(a) A person commits assault in the second degree if he recklessly engages in conduct which creates a substantial risk of physical injury to another person.
(b) Assault in the second degree is a Class B misdemeanor.
We therefore modify the judgment of conviction to the lesser-included offense of assault in the second degree under Ark. Code Ann. § 5-13-206, and reduce Allen’s concurrent sentence to the maximum allowable for Class B misdemeanors, ninety days. See Ark. Code Ann. § 5-4-401(b)(2) (Repl. 1997).
Affirmed as modified.
Meads, Stroud, and Jennings, JJ., agree.
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Judith Rogers, Judge.
This is a case in which appellants were found liable for conversion, trespass, and the wrongful cutting of timber. The circuit judge, sitting as factfinder, awarded appellees damages of $18,211.90. Numerous issues are raised on appeal and cross-appeal. We find no error and affirm.
On July 5, 1991, Ellena Goodwin, part-owner of sixty acres in Union County, executed a timber-cutting agreement with Arkansas Timber Corporation. The agreement provided that Arkansas Timber would cut and remove certain timber on the land, with the provision that the contract must be complied with by July 5, 1992. On April 8, 1992, before the expiration of the deadline, Ellena Goodwin executed a timber deed on the same land to appellee Arkansas Pulpwood Company, for which she was paid $5,000. Neither Arkansas Timber nor Arkansas Pulpwood knew of the other’s transaction with Goodwin.
Sometime in 1992, appellant Dugal Logging entered into a verbal agreement with Arkansas Timber to harvest the trees on the Goodwin tract. It is not known exacdy when Dugal began its harvesting operation, but it is undisputed that the cutting and hauling were not completed before the July 5, 1992, deadline. Weight tickets from various mills revealed that deliveries occurred between July 7 and July 20, 1992. Among the mills that purchased the logs were appellants Anthony Forest Products Company, LTM Chips, Inc., and Riverwood International USA, Inc. Anthony paid Dugal $9,380.80 for the logs it purchased; LTM paid $13,816.85; and Riverwood paid $9,150.58, for a total of $32,348.23.
After Dugal received payment from the. mills, it forwarded $12,541.20 to Arkansas Timber for stumpage, i.e., the right to enter upon the land and cut trees. At about this same time, Arkansas Pulpwood, unaware that the trees on the Goodwin tract had already been harvested, began preparations to cut the trees pursuant to its April 8, 1992, timber deed. Upon discovering what had occurred, it filed suit against Arkansas Timber in Union County Circuit Court alleging a wrongful cutting of timber. By amended complaint, Arkansas Pulpwood added Dugal Logging, Meshell Timber, and the three above-named mills as defendants, charging them with conversion and trespass. These defendants filed cross-claims, seeking judgment over in the event they should be held Hable: Dugal against Arkansas Timber; Riverwood against Meshell; and LTM, Anthony, and Meshell against Dugal.
The remaining parties in the case were added by joinder. During the pendency of the lawsuit, Dugal filed a motion for joinder, claiming that Ellena Goodwin was not the titled owner of the sixty acres upon which the timber had stood. Dugal alleged that other persons, including the heirs óf W.R. McHaney, appellees herein, were indispensable parties. The trial court agreed and ordered joinder.
Trial was held on September 17, 1997, during which testimony was taken and voluminous documentary evidence presented. Thereafter, the trial judge issued an extensive, carefully-reasoned letter opinion. He found that, at the time of the timber cutting, the ownership interests in the sixty acres were as follows: Ellena Goodwin, one-fifth; Sallie Mae Hardy Freeman (Ellena’s sister), one-fifth; and the McHaney heirs (McHaney was a grantee of Goodwin’s three other siblings), three-fifths. He further found that, although Dugal began cutting the timber before the July 5, 1992, deadfine, the substantial majority of the work was done after the deadline. Dugal was therefore held liable for trespass and conversion. Arkansas Timber and the three mills were also held liable for conversion. However, the judge determined that the parties’ acts were not intentional, such as would justify the imposition of exemplary damages pursuant to Ark. Code Ann. § 18-60-102 (1987).
Compensatory damages were calculated by the trial judge as follows: the price Dugal received from the mills for the timber, $32,348.23, less Dugal’s cost of harvesting, $14,136.33, for a total of $18,211.90 awarded to appellees jointly and severally against appellants. Prejudgment interest was added from July 20, 1992, to the date of trial. When all cross-claims were figured in, the ultimate judgment fell upon Dugal and Arkansas Timber. Additionally, Dugal was awarded $12,541.10 on its cross-claim against Arkansas Timber, representing the amount Dugal had paid for stumpage.
Ten issues are presented on appeal. The first two concern a motion to dismiss the appeal and a challenge to the circuit court’s jurisdiction. The next two concern the merits of the case, and the final six involve the trial judge’s award of damages.
Appellees and one of the appellants, Riverwood, argue that the appeal should be dismissed because a motion to extend time for fifing the record was improperly granted. We certified this case to the Arkansas Supreme Court for resolution of this issue, and certification was accepted. See Dugal Logging, Inc. v. Arkansas Pulpwood Co., Inc., 335 Ark. 546, 983 S.W.2d 126 (1998). On January 14, 1999, the supreme court denied the motion to dismiss the appeal and reassigned the remainder of the case to this court. See Dugal Logging, Inc. v. Arkansas Pulpwood Co., Inc., 336 Ark. 55, 984 S.W.2d 410 (1999). The issue has thus been decided, and we need not address it further.
Next, appellant Dugal argues that the circuit court had no power to determine the ownership of the land upon which the timber was grown. Dugal claims, without citation to authority, that determination of ownership of real property is the exclusive province of the chancery court, apparently referring to the rule that a quiet title action,, brought by one in possession of land, is to be filed in chancery court. See Carter v. Phillips, 291 Ark. 94, 722 S.W.2d 590 (1987). However, this was not a quiet title action. Proof of ownership in the property was submitted as part of the conversion and trespass counts. Each of those counts requires proof of an interest in the property converted or trespassed upon. See Graysonia-Nashville Lumber Co. v. Wright, 117 Ark. 151, 175 S.W. 405 (1915); Gardner v. Robinson, 42 Ark. App. 90, 854 S.W.2d 356 (1993). Thus, determination of ownership of property was not the main thrust of the lawsuit. This was a tort action of a type not generally cognizable in chancery. See Chamberlain v. Newton County, 266 Ark. 516, 587 S.W.2d 4 (1979). See also Palmer v. Sanders, 233 Ark. 1, 342 S.W.2d 300 (1961), holding that, in a conversion suit brought in circuit court, it was proper to present evidence as to ownership of the converted property.
We also note that Dugal filed no motion to transfer the case from circuit to chancery court. As between law and equity, any objection to jurisdiction is waived in the absence of a motion to transfer unless the court is wholly without jurisdiction, as in the case of a chancery court trying a criminal case or a probate matter. First Nat’l Bank v. Arkansas Devel. Finance Authority, 44 Ark. App. 143, 870 S.W.2d 400 (1994). See also Stolz v. Franklin, 258 Ark. 999, 531 S.W.2d 1 (1975), holding that appellant’s objection to chancery court jurisdiction in an ejectment case was waived when no motion to transfer was made.
Based upon the forgoing, we hold there was no error in the trial judge’s exercise of jurisdiction.
We turn now to the merits of the case. The first matter to be addressed is whether there was sufficient evidence to prove ownership of the timber land. As we stated earlier, proof of ownership or the right to possession of property is necessary for the maintenance of trespass and conversion actions. Graysonia-Nashville Lumber Co. v. Wright, supra; Gardner v. Robinson, supra; Big A Warehouse Distributors, Inc. v. Rye Auto Supply, Inc., 19 Ark. App. 286, 719 S.W.2d 716 (1986). At trial, appellees presented several deeds into evidence that traced the chain of title to the sixty acres to one Allen Hardy. Probate records from the guardianship proceeding of Sallie Mae Hardy Freeman revealed that Freeman and Ellena Goodwin were two of Allen Hardy’s five children, the other three being Henry, Will, and Mary. The probate records stated that Allen Hardy was deceased. Other deeds in evidence showed that Henry, Will, and Mary deeded their share of the sixty acres to W.R. McHaney. From this evidence, the trial court determined that Goodwin and Freeman each had a one-fifth interest in the land, and that McHaney’s heirs had a three-fifths interest.
Dugal argues that use of the probate records to establish a chain of title was improper, citing Easterling v. Weedman, 54 Ark. App. 22, 922 S.W.2d 735 (1996). In Easterling, the issue concerned the alleged negligence of an insurance agent in establishing an annuity. Appellee, in an attempt to prove the amount of his damages, entered probate documents into evidence showing the amount of the annuities. We held that the documents were hearsay and thus inadmissible.
Easterling is not applicable in this case because appellants made no objection on the basis of hearsay. The objection at trial, which was half-hearted at best, concerned the probative value of all the documents used to establish chain of title. A party cannot change his argument on appeal. Blocker v. Blocker, 57 Ark. App. 218, 944 S.W.2d 552 (1997). Additionally, appellants told the trial court that they had no problem with appellees’ evidence so long as it was being offered to prove that those prosecuting the lawsuit had an interest in the land.
It is important to remember that the primary purpose of this action was not to establish ownership of property but to determine if a wrongful cutting of timber had occurred. The evidence presented by appellees, while it may have proved weak in a quiet title action, was sufficient for the purposes of this lawsuit.
We next address appellants’ claim that, because Dugal began cutting timber before July 5, 1992, he should have been allowed a reasonable time in which to complete the job. Bobby Dugal, owner of Dugal Logging, testified that he did not remember when he began cutting on the Goodwin tract. He admitted that all hauling tickets were dated after the July 5 deadline. He said that the timber that was hauled beginning July 7 could have been cut that day or it could have been cut several days before. He acknowledged that most of the time he began hauling immedi ately after getting on a tract. The trial judge found that Dugal began cutting before July 5 but that the substantial majority of the work occurred after July 5.
In bench trials, the standard of review on appeal is whether the trial judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998).
The wording of the timber-cutting agreement between Goodwin and Arkansas Timber is especially important on this issue. The contract granted Arkansas Timber the right to cut and remove trees. It further provided that Arkansas Timber agreed to cut and remove trees and that it would have “until July 5, 1992, to comply with all the above stated terms.” It is the duty of courts to enforce contracts as written and in accordance with the ordinary meaning of the language used and the overall intent and purpose of the parties. Hancock v. Tri-State Ins. Co., 43 Ark. App. 47, 858 S.W.2d 152 (1993). The language used in .this contract does not indicate that Arkansas Timber or its assigns, if they began cutting trees before the deadline, would be allowed to complete the majority of the work after the deadline.
Appellants cite several older cases in which a timber-cutter was allowed a reasonable period after his contractual deadline in which to complete his job. See Griffin v. Anderson-Tully Co., 91 Ark. 292, 121 S.W. 297 (1909); Indiana & Arkansas Lumber & Mfcting. Co., 89 Ark. 361, 116 S.W. 1173 (1909); and Plummer v. Reeves, 83 Ark. 10, 102 S.W. 376 (1907). However, those cases are distinguishable from the case at bar. Not only did they involve different contractual language, in each of them, all or most of the trees had been cut before the deadline, leaving only the hauling to be completed.
Based upon the forgoing, we cannot say that the trial judge’s findings on the merits of the case were clearly erroneous.
The remaining issues concern the trial judge’s award of damages. Appellants argue first that prejudgment interest should not have been awarded because appellees’ damages were not ascertainable with reasonable certainty. We disagree. To support an award of prejudgment interest, damages should be reasonably ascertainable both as to time and amount. Mitcham v. First State Bank of Crossett, 333 Ark. 598, 970 S.W.2d 267 (1998). If a method exists for fixing the exact value of a cause of action at the time of the occurrence of the event that gives rise to the cause of action, prejudgment interest should be awarded. Killam v. Texas Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990). Put another way, where the amount of damages is definitely ascertainable by mathematical computation or if the evidence furnishes data that makes it possible to compute the amount without reliance on opinion or discretion, prejudgment interest should be awarded. Woodline Motor Freight v. Troutman Oil Co., 327 Ark. 448, 938 S.W.2d 565 (1997).
The criteria for awarding prejudgment interest were met in this case. The last shipment of logs taken by Dugal to the mills occurred July 20, 1992, thus providing an exact date upon which the conversion was complete and giving the trial judge an exact time from which to begin the running of prejudgment interest. Further, the amount of appellees’ damages was capable of exact determination by use of mathematics rather than opinion or discretion. The amounts paid to the mills and the costs incurred by Dugal were capable of being ascertained at the time appellees’ cause of action arose.
Appellants rely on Kutait v. O’Roark, 305 Ark. 538, 809 S.W.2d 371 (1991), in support of their argument. There, appellant trespassed on appellee’s land and wrongfully removed shale, rock, and ground. The trial court awarded approximately $25,000 as damages but refused to award prejudgment interest. The supreme court upheld that decision. However, it did not hold that prejudgment interest was never recoverable in such a case. The basis for the holding was appellee’s failure to specify a time when the trespass occurred and his vagueness with regard to the amount of damages he suffered. Appellee claimed that the trespass occurred “over the course of several weeks” during the summer and fall of 1985 and that “several thousand yards” of shale, rock, and ground were removed. By contrast, the trespass and conversion in this case occurred during a specified period of time and the amount of damages was capable of exact determination during that time.
Appellants’ next argument is that the trial judge failed to follow the rule for measuring damages in a wrongful cutting case, as set out in Burbridge v. Bradley Lumber Co., 218 Ark. 897, 239 S.W.2d 285 (1951). In fact, Burbridge deals with a different type of wrongful cutting case. It concerns the situation in which a converter adds value to the timber by turning it into, lumber or ties. In such situations, if the conversion was unintentional, the victim of the conversion is entitled to the value of the timber as enhanced less the converter’s costs. The timber in this case was not enhanced, but was taken directly to the mill as it was cut. Nevertheless, the trial judge followed the general idea in Burbridge by awarding the value of the timber less Dugal’s costs. We find no error on this point.
Appellants also argue that, as a component of the cost of harvesting, Dugal should have received credit for the $12,541.20 paid to Arkansas Timber for stumpage. Had the trial judge allowed such a credit, appellees’ recovery would have been $5,670.70 rather than $18,211.90. We find no error on this point because the trial judge awarded Dugal judgment against Arkansas Timber for $12,541.20, thereby placing the burden of recovering this amount on a joint tortfeasor rather than the injured parties.
Finally, appellants argue that a judgment should have been entered against Ellena Goodwin for the $5,000 she received from Arkansas Pulpwood, with the appellants being given credit for that amount. No authority is cited nor any convincing argument made on this point. Further, the trial judge stated in his letter opinion that the $5,000 was not at issue in this proceeding. In any case, appellants offer no reason why those who were adjudged liable for the tortious conduct in this case should benefit by a judgment against one who was not adjudged Hable.
On cross-appeal, we first consider appeUees’ claim that the trial judge erred in finding appellants were unintentional trespassers and converters. Had the court found otherwise, Dugal would not have been allowed to deduct his cost of harvesting the trees. See Burbridge v. Bradley Lumber Co., supra. The issue of intent is a question of fact. Undem v. First Nat’l Bank, 46 Ark. App. 158, 879 S.W.2d 451 (1994). A trial judge’s finding of fact will not be reversed unless clearly erroneous. McQuillan v. Mercedes-Benz Credit Corp., supra. There was evidence in the case from which the trial judge could have concluded that Dugal was never shown a copy of the timber-cutting agreement and never knew or had reason to know of the deadline. Under the circumstances, we cannot say that the trial judge’s finding that the wrongful cutting was due to a mistake rather than willful or intentional conduct was clearly erroneous.
Appellees also question the manner in which the trial judge calculated Dugal’s costs. Dugal testified that his logging costs were $9.60 per ton, an amount which included a profit, and $20 per cord for pine pulpwood. The trial judge used these figures to compute $14,136.33 in costs that Dugal was allowed to deduct. Appellees argue that Dugal should have offered evidence of his exact out-of-pocket costs.
The record as abstracted does not reveal that appellees objected to the method used by the trial judge in calculating Dugal’s costs, nor does it reveal that they challenged or rebutted Dugal’s figures during their examination of him. The argument is thus being made for the first time on appeal, and we do not consider such arguments. Meadors v. Meadors, 58 Ark. App. 96, 946 S.W.2d 724 (1997).
Affirmed on direct appeal and cross-appeal.
Hart and Stroud, JJL, agree.
Dugal’s sale to Riverwood was accomplished through a purchase order contract held by appellant Meshell Timber Company, Inc. Dugal paid Meshell $1,033.13 for the privilege of using the contract.
Separate appellant Anthony Forest Products, in its answer to appellees’ third amended complaint, requested that the case be transferred to chancery court. Anthony does not urge this argument on appeal, and Dugal cannot benefit from an objection made on behalf of another defendant. See generally Smith v. State, 308 Ark. 603, 826 S.W.2d 256 (1992). | [
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John E. Jennings, Judge.
Ruby Worley brings this appeal from the circuit court’s order dismissing her appeal from county court because she neglected to file the affidavit required by Ark. Code Ann. § 16-67-201 (c) (1987). Appellant raises two issues on appeal. First she contends that the appellee waived the affidavit requirement. Second she argues that the appeal was nonetheless perfected because the circuit clerk accepted the record and her payment of filing fees. We find merit in the first issue raised and reverse and remand for trial.
By order of January 2, 1998, the county court approved the formation of the River Oaks Water Improvement District, the appellee. Appellant, proceeding pro se because her attorney had died, filed a timely notice of appeal from that decision. The appeal was lodged in the Garland County Chancery Court. On March 16, 1998, counsel for appellee wrote the court asking for an expedited hearing on the ground that the case concerned a matter of public interest. On March 26, appellant filed a pleading objecting to appellee’s request, and she made demand for a jury trial based on her understanding that the appeal to “circuit court” was de novo. On April 3, the court granted appellee’s request for an expedited hearing and scheduled it for April 24. On April 21, appellant filed a motion in which she questioned the jurisdiction of the chancery court and asked for the case to be transferred to circuit court. On the day of the hearing, appellee filed a motion to dismiss the appeal in which it argued that dismissal was appropriate because the chancery court lacked jurisdiction and because appellant’s notice of appeal failed “to state with specificity any points of Appeal and thus is defective and the appeal should be dismissed.” By order of April 24, the chancellor transferred the appeal to circuit court.
On April 27, 1998, appellee filed a motion to dismiss the appeal in the circuit court on the ground that appellant had failed to file the affidavit required under Ark. Code Ann. § 16-67-201 (c) (1987). Appellant responded to the motion arguing that appellee had waived this requirement. After a brief hearing, the trial court granted appellee’s motion to dismiss by order dated May 26, 1998, holding that the filing of the affidavit was a jurisdictional requirement. Appellant filed a motion for reconsideration in which she argued that the appeal was perfected without the affidavit because the record and fees had been accepted by the circuit clerk. The court denied appellant’s motion, and this appeal followed.
Arkansas Code Annotated section 16-67-201 (a) (1987) provides that appeals from county court shall be granted as a mat ter of right to the circuit court “by the party aggrieved filing an affidavit and prayer for an appeal with the clerk of the court in which the appeal is taken.” Subsection (c) of the statute provides that the aggrieved party “shall swear in the affidavit that the appeal is taken because the appellant verily believes that he is aggrieved and is not taken for vexation, or delay, but that justice may be done him.” Early case law provided that the filing of the appeal affidavit was a jurisdictional prerequisite. Town v. Wilson, 7 Ark. 386 (1846); McJenkin v. State Bank, 7 Ark. 232 (1846); Bank of the State v. Hinchcliffe, 4 Ark. 444 (1842). The court subsequently took a different view and held that the affidavit was not a jurisdictional requirement in that its fifing was for the sole benefit of the opposing party and could be waived. Stricklin v. Galloway, 99 Ark. 56, 137 S.W. 804 (1911); Elder v. Crabtree, 59 Ark. 177, 26 S.W. 817 (1894); Wilson v. Dean, 10 Ark. 308 (1849). Cf. Moore v. Mears, 273 Ark. 411, 619 S.W.2d 662 (1981). Such a waiver occurs when the opposing party appears and takes substantive steps in the matter without moving to dismiss the appeal on that ground. Tuggle v. Tribble, 173 Ark. 392, 292 S.W. 1020 (1927); Wulff v. Davis, 108 Ark. 291, 157 S.W. 384 (1913).
Here, appellee asked for and received an expedited hearing and filed a motion to dismiss for reasons other than appellant’s failure to file the affidavit. Under these circumstances, we hold that appellee waived this requirement and that the trial court erred in dismissing the appeal. Because we reverse on this point, it is not necessary for us to address appellant’s second argument.
Reversed and remanded.
Rogers and Griffen, JJ., agree. | [
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Terry Crabtree, Judge.
The appellant, Rushun Foster, entered conditional guilty pleas in two cases pursuant to Arkansas Rule of Criminal Procedure 24.3(b). In CR 97-1704, appellant pleaded guilty to possession of cocaine with intent to deliver, simultaneous possession of drugs and firearms, maintaining a drug premise, possession of drug paraphernalia, and possession of marijuana. These charges arose from the execution of a search warrant of a residence on January 2, 1997. In CR 97-1279, appellant pleaded guilty to possession of cocaine with intent to deliver, possession of drug paraphernalia, and maintaining a drug premise. These charges arose from the execution of a second search warrant of the same residence on January 13, 1997. On appeal, appellant argues that the lower court erred by failing to suppress the evidence obtained by police officers during the execution of the two search warrants.
In reviewing the denial of a motion to suppress evidence, we make an independent examination based upon the totality of circumstances and reverse only if the decision is clearly against the preponderance of the evidence. Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997). We recognize that the Fourth Amendment incorporates the common-law requirement that police officers must knock and announce their identity before entering a dwelling. Wilson v. Arkansas, 514 U.S. 927 (1995). In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous, futile, or that it would inhibit the investigation of the crime by, for example, allowing the destruction of evidence. Hale v. State, 61 Ark. App. 105, 968 S.W.2d 627 (1998).
Appellant asserts that the facts in the affidavit supporting the search warrant executed on January 2 were stale and that the affidavit did not state sufficient facts to justify a no-knock search. Appellant failed to argue below that the facts in the affidavit supporting the search warrant were stale. The appellate court has repeatedly held that it will not address arguments, even constitutional arguments, raised for the first time on appeal. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997).
It is the duty of a court confronted with the question to determine whether the facts and circumstances of a particular entry justified waiving the knock-and-announce requirement. Hale, supra. Here, the circuit court found that the no-knock entry was appropriate in fight of the officers’ reasonable suspicion that knocking and announcing their presence would have been dangerous. We will not reverse that finding unless it is clearly against the preponderance of the evidence. Id.
Detective Johnny Gravett testified that after a confidential informant conducted a drug buy at the residence for the police, the informant told Gravett that there were weapons in the house and that gaining access to the house would be difficult. Gravett’s affidavit also contained generalizations about the possi bility that evidence could be destroyed and that officers’ safety could be compromised if the police knocked and announced themselves before entry. These generalizations alone are not enough to justify waiving the knock-and-announce requirement. See Richards v. Wisconsin, 520 U.S. 385 (1997). However, knowing that weapons were seen inside the residence, we believe that the police officers could have been endangered if they knocked and announced themselves. Therefore, based upon the totality of the circumstances, we believe that a no-knock entry was justified.
Next, appellant argues that the warrant authorizing the January 13 search did not authorize a no-knock search, and therefore, it was unlawful. In compliance with the warrant, this search was conducted at night. Upon review of the record, we find that the police officers complied with the knock-and-announce requirement. Detective Ralph Breshears testified:
The police announced their presence and said, ‘Litde Rock Police Search Warrant,’ and I heard a very large crash from the rear of the residence and several on my squad began to scream they had a subject running. The SWAT team went on and made entry into the residence and attempted to secure the residence while we pursued [appellant, who had] jumped through the back window and fled on foot.
In this instance, the police entered the residence only after they had announced themselves and their purpose and heard a crash from inside the house.
Even assuming that the police did not properly knock and announce themselves, we believe that their entry was justified. In order to conduct a no-knock search, it is not necessary that the search warrant specifically dispense with the knock-and-announce requirement, because the reasonableness of the officers’ decision to make a no-knock entry may be evaluated as of the time of the entry. See Richards, supra. Here, Detective Breshears indicated that he had seen weapons in the house during the first search only days before, that the weapons had been readily accessible to the occupants of the house, and that the occupants of the house had an unrestricted view of its surroundings. In fight of this, the officers acted reasonably in their no-knock entry to ensure their safety and to pursue appellant, who was attempting to flee. As a result, we fail to see how the trial court erred.
We cannot say that the trial court’s rifling on the motion to suppress was clearly against the preponderance of the evidence. We believe that the two no-knock entries into appellant’s home were reasonable under the circumstances.
Affirmed.
Bird and Neal, JJ., agree. | [
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Andree Layton Roaf, Judge.
Judith M. Mow (Mrs. Mow) appeals an order by the Columbia County Chancery Court granting judgment on the pleadings to appellee William S. Mow (Mr. Mow) and dismissing with prejudice her motion to modify the parties’ divorce decree. Her motion was filed ninety-one days after the entry of the final decree and sought relief pursuant to the provisions of Rule 60 of the Arkansas Rules of Civil Procedure. On appeal, Mrs. Mow argues that the chancellor’s decision was clearly erroneous because she pleaded facts relating to fraud practiced by her ex-husband that met the standard of proof required by Rule 60(c)(4) of the Arkansas Rules of Civil Procedure. We agree that the chancellor properly denied Mrs. Mow the relief she sought, but for a different reason than stated by the chancellor, and we affirm.
The Mows married on June 25, 1991, and separated on March 30, 1997. Mr. Mow filed a petition for divorce on March 31, 1997, and that same day, Mrs. Mow, who was not represented by counsel, waived service and appearance, and consented to a property-settlement agreement. A divorce decree that incorporated by reference the property settlement agreement and contained a permanent injunction against harassment by the respective parties was filed for record on May 7, 1997. On July 27, 1997, Mr. Mow petitioned the court to enforce the restraining order. Mrs. Mow filed her response on August 6, 1997, ninety-one days after the entry of the decree, and that same day, in a separate pleading, moved to modify the divorce decree. In that motion she alleged that in the execution of the property settlement agreement she was not represented by legal counsel, was suffering with depression and alcoholism for which she had been hospitalized, had been locked out of the marital residence, and had been required by Mr. Mow to go to his attorney’s office under a threat that her child from a previous marriage would be taken away from her permanently. She also alleged that Mr. Mow represented to her that the proposed settlement was a fair division of the assets of the marriage, but that she later determined that she did not receive an equal share. In his response to Mrs. Mow’s motion, Mr. Mow denied the allegations of fraud and overreaching and prayed that the motion be dismissed for want of equity and merit and, in the alternative, for failure to state a claim upon which relief could be granted pursuant to Rules 12(b) and 9(b) of the Arkansas Rules of Civil Procedure.
After discovery, in which Mrs. Mow did not materially add to the body of facts relating to the allegations of fraud and overreaching, Mr. Mow moved for judgment on the pleadings, pursuant to Rule 12(c) of the Arkansas Rules of Civil Procedure, and his motion was granted. The trial court found that Mrs. Mow failed to plead sufficient facts that Mr. Mow practiced the kind of fraud that would allow the court to set aside a judgment after ninety days pursuant to Rule 60(c) of the Arkansas Rules of Civil Procedure and dismissed Mrs. Mow’s motion with prejudice.
On appeal, Mrs. Mow argues that the chancellor’s decision to dismiss her motion with prejudice was clearly erroneous because she met the standard of proof required by Rule 60(c). She cites Ward v. McCord, 61 Ark. App. 271, 966 S.W.2d 925 (1998) (quoting United States v. Throckmorton, 98 U.S. 61 (1878)), for the proposition that setting aside a decree pursuant to Rule 60(c) is appropriate “where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced upon him by his opponent,” and contends that hers is just such a case. Moreover, referring to the examples of extrinsic fraud listed in Throckmorton, she contends that Mr. Mow’s promise that he would “take care of her” in the property settlement agreement constituted a “false promise of compromise.”
Mrs. Mow further asserts that the instant case is distinguishable from Ward v. McCord, supra, in which this court reversed the granting of a new trial on a property setdement that was entered into after the appellant had fraudulently concealed assets, because in the instant case, only ninety-one days had elapsed since the entry of the decree whereas in Ward, six years had elapsed. She also contends that Alexander v. Alexander, 217 Ark. 230, 229 S.W.2d 234 (1950), another case in which a chancellor’s decision to vacate an order was overturned on appeal, is distinguishable because the “cited concern” that there would be “no end to the litigation” is not present in the instant case. Her arguments are without merit.
Rule 60(c)(4) states:
(c) Grounds for Setting Aside Judgment, Other Than Default Judgment, After Ninety Days. The court in which a judgment, other than a default judgment [which may be set aside in accordance with Rule 55(c)] has been rendered or order made shall have the power, after the expiration of ninety (90) days after the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:
(4) For fraud practiced by the successful party in obtaining the judgment.
Ark. R. Civ. P. 60(c). In Parker v. Sims, 185 Ark. 1111, 51 S.W.2d 517 (1932), the supreme court explained the type of fraud that will warrant the setting aside of a judgment:
The law is settled that the fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. It must be a fraud practiced upon the court in the procurement of the judgment itself.
185 Ark. at 1116, 51 S.W.2d at 519-20 (citations omitted). The fraud for which a decree will be canceled must consist in its procurement and not merely in the original cause of action. First Nat’l Bank v. Higginbotham Funeral Serv., Inc., 36 Ark. App. 65, 818 S.W.2d 583 (1991). It is not sufficient to show that the court reached its conclusion upon false or incomplete evidence, or without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which was, or might have been, an issue in the proceeding before the court which resulted in the decree assailed. Id. The party seeking to set aside the judgment has the burden of showing that the judgment was obtained by fraud, and the charge of fraud must be sustained by clear, strong, and satisfactory proof. Id.
Here, the fraud that Mrs. Mow complains of apparently lies in her claim that she should have gotten a better deal in the property settlement. She does not dispute that she agreed to the property settlement, but contends only that she should have been treated better by her estranged husband. Accordingly, the fact that an agreement was indeed reached simply does not allow a conclusion that there was a false promise to compromise. Therefore, the fraud that Mrs. Mow alleges, if indeed it is fraud, is clearly intrinsic, not extrinsic, and Ward v. McCord, supra, is strong authority for affirming the chancellor in the instant case. In Ward, we held that fraudulent concealment of marital property was “intrinsic fraud.” Here we have litde more than Mrs. Mow’s claim that Mr. Mow promised to be fair, but failed to give her an equal share of the marital assets, which is not remarkably different from the situation in Ward.
However, in affirming the chancellor’s disposition of Mrs. Mow’s motion, we note that a motion is not a pleading as defined by the Arkansas Rules of Civil Procedure. See Ark. R. Civ. P. 7 & 10. Nonetheless, in our de novo review of the record we have concluded that Mrs. Mow’s motion received all due consideration. “Although it is not clearly prescribed in the rules, presumably the Court must either hold a hearing for argument of a motion or must direct or permit other response by the respondent.” David Newbern, Civil Practice and Procedure § 10-3 (2d ed. 1993); Ark. R. Civ. P. 6(c), 7(b)(1). “Most motions resulting in orders require a hearing, and occasionally, evidence may be presented.” Newbern, § 16-5.
In the chancellor’s letter opinion to the parties’ attorneys he stated: “This matter was set for hearing on May 6, 1998, at 1:30 p.m. At that time, both of you announced that as the issues were adequately pled and briefed, that there was no need for a hearing and that the Court could review the file and make its findings.” The letter opinion further stated that the chancellor determined that Mr. Mow’s motion for judgment on the pleadings should be granted because Mrs. Mow had failed to “fact-plead her allegation of fraud as required under Rule 12(b)(6).”
Because we can affirm the chancellor if we determine that he reached the right conclusion even if for the wrong reason, we need not consider the propriety of granting a judgment on the pleadings with respect to a motion. As stated earlier, even if Mrs. Mow’s allegations can be said to amount to allegations of fraud, it would amount to intrinsic fraud and, as such, would not provide a basis for relief under Rule 60(c). Both parties submitted briefs to the court and agreed that their motions could be decided without a hearing. Under the circumstances, Mrs. Mow’s motion received due consideration as contemplated by our rules of civil procedure, and it was appropriate for the trial court to deny the motion and the relief she requested.
Affirmed.
Robbins, C.J., and Crabtree, J., agree. | [
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Andree Layton Roaf, Judge.
Kal Ishmael appeals the provisions in a Crittenden County Chancery Court divorce decree that awarded his ex-wife Sally Rose Ismail a portion of her attorney fees and suit money and require that his visitation with his minor child be supervised. On appeal, Kal argues that the chancellor erred in 1) ordering him to pay Sally’s attorney fees and in setting the amount so ordered; and 2) requiring supervised visitation. We affirm.
When Kal met Sally they were students at Memphis State University. Sally’s studies there led to her becoming a Certified Public Accountant; Kal opted instead to attend various pilot training programs in pursuit of an apparently as yet unrealized career in aviation. Kal and Sally married on June 6, 1985, after Sally became pregnant with the parties’ only child, Benjamin, who was bom on January 20, 1986.
The parties separated in 1990, and Sally filed, then dismissed, a divorce action in Tennessee. Around this time, Kal, a native of Egypt, made to Sally the first of what was apparently repeated threats to take Benjamin out of the country and never let her see him again. Kal left Arkansas and moved to Port Huron, Michigan, where he lived and occasionally worked as a “financial advi-sor” for his brother-in-law, Dr. Khattab M. Joseph, a successful vascular surgeon.
The parties entered into marriage counseling with psychologist Dr. Walter R. Houston, a self-styled Christian family therapist. According to Dr. Houston, Kal initially denied, but later admitted, that he had threatened Sally with taking Benjamin out of the country and never letting her see him again.
Kal apparently continued to resist the dissolution of his marriage, and he initially acquiesced to the terms of a reconciliation agreement, dictated by Sally, that required of Kal that he not take Benjamin out of the country without prior authorization of the court; that he formally renounce his Egyptian citizenship; that he surrender his passport to Sally’s attorney; and that he secure the agreement by a $50,000 cash bond deposited in the credit union managed by Sally’s father and a pledge of the equity in the home owned by Dr. Joseph, which Sally believed to be approximately $50,000 to $60,000. Kal, however, never followed through on the reconciliation agreement, and the parties never again co-habitated.
According to Sally, on the advice of her attorney, who told her that she would get a “better deal” in Arkansas, she petitioned for divorce in Crittenden County, on May 26, 1992. In her complaint, she alleged that Kal threatened to take Benjamin out of the country and never allow her to see the child again. In addition to seeking full custody, the petition prayed that Kal’s visitation be restricted and that a mutual restraining order be granted that would enjoin the parties from “bothering or harassing the other and/or removing the parties’ children [sir] from the jurisdiction.” On May 27, 1992, Sally caused to have entered an ex parte order restricting Kal’s visitation so as to allow it to be exercised only in her presence. The order also granted her temporary use and possession of the marital residence. On October 6, 1992, a mutual restraining order was entered that enjoined the parties from “disposing of any assets owned by the parties without prior Court approval and more particularly to the withdrawal of any funds from any bank account that either party may have ... in amounts over $1,000 without prior Court approval.”
Sally then undertook a determined effort to find and lay claim to some or all of the money that Kal handled for Dr. Joseph. To this end, she hired as many as five private investigators in Michigan and Florida, who located several bank accounts into which Kal had deposited hundreds of thousands of dollars of Dr. Joseph’s money. In preparation for the divorce proceedings, Sally had her legal team depose several bank employees in Michigan who had knowledge of Kal’s transactions. These accounts were held in names other than Kal Ishmael and under social security numbers that were different from his. Kal admitted that he worked these deceptions to keep Sally from getting her hands on the money.
After a two-day hearing in September of 1996, in which the out-of-state witnesses testified by deposition, the chancellor took the matter under advisement. On February 11, 1998, a decree was finally filed for record. It dissolved the marriage on the grounds of general indignities; granted Sally full custody of Benjamin; awarded Sally use and possession of the marital home until Benjamin reaches the age of eighteen or graduates from high school; awarded the parties the automobiles and personal property then in their possession; made an equitable distribution of the parties’ bank account; continued the supervised visitation established in the 1992 ex parte temporary visitation order based on a finding that unsupervised visitation with Kal posed an abduction risk; established child support at $75 per month based on a finding that Kal was unemployed; and awarded Sally $15,000 in attorney fees, $2,500 in suit money, and $58.75 in costs. The award of attorney fees represented approximately half of what Sally claimed to have expended in her case. The suit money reflected the amount of an expert witness fee charged by Philip Schwartz, an attorney who specializes in international matrimonial law. Schwartz had testified by deposition that if Kal abducted Benjamin and fled to Egypt, it would be difficult and costly, if not impossible, for Sally to get him back. The chancellor also made a specific finding that Kal did not own any of the funds contained in the Michigan bank accounts that he had opened and declined to find him in contempt for removing these funds from the accounts that he had opened.
Kal first argues that the chancellor erred in ordering him to pay Sally’s attorney’s fees and suit money, and in fixing the amount thereof. Citing Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983), and Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998), for the proposition that a chancellor must consider the financial means of the parties in his decision to award attorney fees, he asserts that the $17,558.75 in attorney fees and costs that he was ordered to pay is more than his net worth and more than twice his annual income. Further, he recites that during the pendency of the divorce, the most money that he ever made in a year was in 1992, when he made $16,088, while in comparison, Sally’s salary at the time of the hearing was $36,586. Kal also notes that the property settlement from the marriage left him with a 1985 Toyota; half-interest in the equity in the $85,000 marital residence, which he could not realize until after Benjamin turns eighteen; a judgment for $3,500; and $136,000 in debts. Furthermore, Kal contends that “an enormous majority” of Sally’s legal fees were incurred in a futile effort to discover marital property, an issue that she lost on. Kal acknowledges that the standard of review for the award of fees is daunting, but contends that the award of fees in this case should be reversed because it was clearly erroneous. We disagree.
A chancellor has considerable discretion to award attorney’s fees in a divorce case. Gavin v. Gavin, 319 Ark. 270, 890 S.W.2d 592 (1995). In determining whether to award attorney’s fees, the chancellor must consider the relative financial abilities of the parties. Anderson v. Anderson, supra; Paulson v. Paulson, supra; see also Lee v. Lee, 12 Ark. App. 226, 674 S.W.2d 505 (1984). In setting the amount of fees awarded, it is well settled that the chancellor is in a better position to evaluate counsel’s services than an appellate court, and, in the absence of clear abuse, the chancellor’s award of an attorney’s fee will not be disturbed on appeal. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).
Here we find no abuse of discretion. Although Kal apparently had no present employment, he testified that he had secured his commercial pilot’s license at a cost of more than $100,000. Furthermore, Kal’s purported lack of funds was no deterrent to his flying to Europe and the Middle East with a regularity that made him unable to recall with specificity an overnight stay in London only few months before. Moreover, although the amount of the attorney’s fees awarded in this case is considerable, we note that it was less than the total fees incurred by Sally. Furthermore, while Sally’s attempt to lay claim to the several thou sand dollars that Kal controlled ultimately proved unsuccessful, the circumstances created by her much-traveled estranged husband nonetheless could reasonably have been considered by the chancellor in making his fee award. See Grant v. Grant, 254 Ark. 1060, 497 S.W.2d 255 (1973)(upholding a large attorney fee award where the appellee had expended a significant sum of money to hire private investigators to help prove the appellant had committed adultery on his many business trips).
For his second point, Kal argues that the chancellor “became incensed” at what he perceived to be Kal’s dishonesty as evidenced by the fact that the chancellor “unreasonably chastised” him about his testimony. He contends that in so doing, the chancellor lost sight of the best interest of the child, the “polestar” for making judicial determinations concerning custody and visitation matters. He argues that while he was purported to have first threatened to abduct Benjamin in 1987, he has had the child alone many times since then and never acted upon these alleged threats. He also denies ever having made such a threat. He urges this court to find him credible, where the chancellor did not, and believe him when he testified “reasonably” that he would not remove Benjamin from America because it would ruin his and his son’s life and that supervised visitations were detrimental to his relationship with his son. Finally, Kal asserts that the chancellor ignored Sally’s lack of credibility as established by the fact that she testified that he controlled all the family money yet he proved that she signed ninety-four percent of some 1,480 checks. This argument fails to persuade.
The governing principle for making judicial determinations concerning custody and visitation is the best interest of the child. Marler v. Binkley, 29 Ark. App. 73, 776 S.W.2d 839 (1989). While chancery cases are tried de novo on appeal, the chancellor’s decision will not be reversed unless it is shown that his decision is clearly against the preponderance of the evidence. Id. Because there are no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties and their witnesses carry as great a weight as one involving the custody of children, this court defers to the chancellor’s determination as to the credibility of the witnesses. Id.
This court cannot revisit a finding concerning a witness’s credibility on appeal, so even if the order of supervised visitation turned solely on the fact that the chancellor believed Sally when she said that Kal threatened to take Benjamin out of the country and did not believe him when he denied it, we would have to affirm the chancellor. There is, however, more in the record to uphold the chancellor’s ruling on this issue. Specifically, Dr. Houston testified that, in the course of his providing counseling to Kal and Sally, Kal admitted threatening Sally with Benjamin’s abduction.
Here, preventing Kal from abducting Benjamin was obviously an important consideration for the trial court in establishing and maintaining supervised visitation; indeed, Kal himself testified that removing Benjamin from America would ruin the child’s life. Accordingly, we find that it is simply disingenuous to assert that the chancellor failed to consider the best interest of the child in ordering supervised visitation. We are not unmindful of the fact that Kal failed to act on his threat despite ample opportunity to do so, over a period of several years. However, during this time he was actively seeking reconciliation with Sally, an eventuality that is obviously foreclosed to him now. Deferring as we must to the superior position of the chancellor to determine the credibility of the witnesses, we are unable to conclude that the chancellor erred when he ordered that Kal’s visitation with Benjamin continue to be supervised. See Lowell v. Lowell, 55 Ark. App. 211, 934 S.W.2d 540 (1996).
Affirmed.
Pittman and Hart, JJ., agree. | [
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Olly Neal, Judge.
Gary Frigon appeals from an order of the Jefferson County Chancery Court finding that two withdrawals made by Frigon from his pension plan should be included as income for setting his child-support obligation. We cannot say that the chancellor abused his discretion in making his findings of fact and, therefore, affirm.
On June 14, 1991, the trial court entered a divorce decree pursuant to a complaint for divorce filed by Frigon on May 29, 1991. Frigon and appellee, Sue Frigon, had been married 13 years at the time the divorce decree was entered and were both practicing physicians in the Pine Bluff, Arkansas area. Frigon later relocated to Bentonville, Arkansas where he established a new medical practice. In a partial property-setdement agreement, appellee was awarded custody of the parties’ minor child and, in turn, Frigon agreed to pay appellee $1,750 per month for child support. The trial court, however, reserved jurisdiction to enforce matters of custody and support upon the petition of either party.
On October 24, 1994, the trial court entered an order in regard to a motion for modification of support and visitation filed by Frigon. Upon agreement of the parties, the trial court ordered Frigon to pay child support in the following manner:
(a) Beginning October 1, 1994, the amount of monthly child support to be paid by Gary Frigon for the benefit of [the parties’ child] is reduced to $1,000.00 per month. This amount of child support shall continue until March 30, 1996.
(b) On or before April 1, 1996, Gary Frigon shall calculate the amount of his child support for the next twelve-month period based on the following formula: [Frigon’s] child support shall be equal to 13 percent of his gross adjusted income as reflected on his federal income tax return, less deductions for federal, state, self-employment taxes. Additionally, if [Frigon’s] federal income tax return includes a deduction for a payment made to [Frigon’s] pension account, the amount of that pension payment shall be added to his net income for purposes of determining child support. (Emphasis added.)
(d) If [Frigon’s] actual earnings for 1995 reflect that [Frigon’s] monthly child support obligations for the period between October 1, 1994, and March 30, 1995, should have been either more than or less than $1,000 per month, [Frigon] shall adjust his child support payment for the next twelve-month period to include or deduct the amount of underpayment or overpayment made in that preceding eighteen-month period.
(e) The base amount, with appropriate adjustments, shall be paid until April 1997, at which time the amount of child support will be recalculated based on [Frigon’s] 1996 earnings. The parties will continue to use the methodology provided herein to determine the amount of child support that [Frigon] shall pay on a yearly basis.
(f) [Frigon] shall begin paying the adjusted amount of child support on April 1 of each year. Further, on April 1 of each year, the parties shall enter into an interim order setting forth the amount of child support for the following year. At the time the interim order is entered, [Frigon] will also provide [appellee] with a copy of his federal income tax returns, along with his schedule C. [Frigon] will be allowed to deduct from his federal income tax returns all information relating to any earnings of his present wife, Sandi Frigon. After entry of the interim order, which shall not be prejudicial to either party, [appellee] will have thirty days to file a petition challenging the increase or decrease in child support. If [appellee] does not petition the court during this period of time, the child support set forth in the interim order shall become the amount to be paid by [Frigon] until the following year.
On February 7, 1997, the trial court entered an interim order to adjust Frigon’s child-support obligation based on Frigon’s 1995 tax return and the formula set out in its 1994 order. The trial court stated that Frigon’s 1995 tax return reflected that his net income was $51,800, or $4,316.67 monthly. Thereafter, the trial court applied 13% to Frigon’s monthly income and established that his child-support obligation was $561.17 per month. On March 3, 1997, appellee filed a petition to object to the calculations set forth in the February 7 order. She alleged that the calculations used to determine the appropriate child support from October 1994 to April 1996 were incorrect and that the same calculations should not be used to determine child support from April 1996 to April 1997. Appellee affirmatively pled that Frigon’s 1995 income information was incomplete and that she had not received information on Frigon’s 1996 income. Frigon denied that the 1995 information was incomplete, but admitted that the 1996 information had not been forwarded to appellee.
In an amended petition filed on November 5, 1997, appellee prayed for the trial court to determine any arrearage of child support in 1995, 1996, and 1997, and to determine the methodology used to calculate the child-support payments.
On March 25, 1998, appellee filed a letter brief to the trial court asserting that Frigon’s pension withdrawal of $71,000 in 1995, and a withdrawal of $42,500 in 1996, should be included in calculating Frigon’s 1995 and 1996 income for child-support purposes. Appellee contended that, as a result, Frigon incurred an arrearage of $7,298 in child support as of October 1997. In his letter brief, Frigon asserted that his pension contributions should be treated as income in the year they were made, but not in the year they were withdrawn. The trial court, however, found that the parties agreed that Frigon’s child support would be equal to 13% of his gross adjusted income as reflected on his federal income tax return, less federal, state, and self-employment taxes. The trial court also found that the agreement of the parties mirrored the child-support guidelines established by the per curiam opinion of Arkansas Supreme Court on October 25, 1993, and that if Frigon’s federal income tax return included a deduction for a payment made to his pension account, the amount of that pension payment would be added to his net income for purposes of child support. We note that the $42,500 and $71,000 withdrawals from Frigon’s pension plan were not from any deductions on which child support had been calculated. Thus, the trial court found that the two pension withdrawals from Frigon’s pension plan should be considered as income for setting Frigon’s child-support obligation. The trial court concluded that the parties intended that Frigon’s future contributions to his pension plan be included as income to Frigon for setting his child support. Nearly one month later, the trial court determined that Frigon’s total child-support arrearage was $12,023 as of March 31, 1998.
Frigon argues that the child-support provision in the 1994 order addresses only contributions to his pension plan, which he agrees should be added back to his adjusted gross income. He contends that the order, however, is silent as to the treatment of withdrawals from his pension plan and that he has overpaid $12,287.24 in the years of 1995 and 1996, as reflected in the February 1997 order. Frigon further contends that the chancellor’s findings have the effect of allowing an inequitable modification to the property-settlement agreement between the parties because a portion of the contributions made to his pension plan was partly monies he received from the property settlement.
The amount of child support lies within the sound discretion of the chancellor, and the chancellor’s findings will not be disturbed on appeal in the absence of a showing of an abuse of discretion. Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997).
In this case, there is no case law that directly addresses whether income for purposes of child support should include a withdrawal from the pension plan of the noncustodial parent. However, Arkansas has established child-support guidelines to determine the sum that a noncustodial party must pay to meet his or her child-support obligations. See In re Guidelines for Child Support, 314 Ark. 644, 863 S.W.2d 291 (1993). In 1993, Arkansas established that income for the purposes of child-support calculations was identical to the definition of income stated in the Federal Internal Revenue Code, which states that “except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items: . . . (11) Pensions; . . . 26 U.S.C. § 61(a) (1994).
Here, the 1994 order is not controlling because it is silent as to pension funds acquired by Frigon before the order was filed. However, we must point out that the terms of the 1994 order do not conflict with the 1993 child-support guidelines established by the Arkansas Supreme Court, in that monies available to Frigon in 1995 and 1996 should have been accessible to the parties’ child for support purposes. Both the 1993 guidelines and the 1994 order provide that Frigon’s federal income tax return would be the basis for determining income for his child-support obligation. Although Frigon argues that the trial court, in effect, modified the parties’ property-setdement agreement by including his pension withdrawals as income for child-support purposes, we have stated that the chancellor always retains jurisdiction and authority over child support as a matter of public policy, and that, no matter what an independent contract states, either party has the right to request modification of a child-support award. Warren v. Kordsmeier, 56 Ark. App. 52, 938 S.W.2d 237 (1997); Terry v. Terry, 28 Ark. App. 169, 771 S.W.2d 321 (1989).
Therefore, we conclude that the trial court did not abuse its discretion in finding that the withdrawals from Frigon’s pension plan are included as income for determining child support.
Affirmed.
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John B. Robbins, Chief Judge.
This case concerns a boundary-line dispute. Appellant Ode Ward appeals the order of a Craighead County chancellor that dismissed Ward’s 1996 complaint against appellees Mike Adams, his wife Rebecca Adams, and Buddy Frank Smith, which asserted that Ward had acquired ownership of a disputed thirty-foot strip of property by acquiescence or by adverse possession. Appellant argues that this finding of the chancellor was clearly erroneous. We disagree and affirm.
Chancery cases are reviewed de novo on appeal. Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998). We will not reverse a chancellor’s finding of fact in a boundary line dispute case unless the finding is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Id. The location of a boundary line is a question of fact. Id. In reviewing a chancery court’s findings of fact, we give due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be accorded their testimony. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996).
The undisputed facts in this case indicated that Ms. Henson, Mr. Staggs, and Mr. Ward owned adjacent parcels of land, and that Ms. Henson had the most northerly of the tracts. Just to the south was Mr. Staggs’ property, and just south of Mr. Staggs was the land owned by appellant Ward. Directly to the east of the eastern boundary lines of these three properties was the land belonging to the appellees. Appellees grew wheat on their land; appellant grew cotton on his. The question in this case pertains to the location of their common boundary line. Aerial photographs of this farm land taken yearly by the Agriculture and Soil Conservation Service were introduced indicating a relatively straight line from north to south along the three properties that abutted the land of appellees. Appellees contended that the big oak tree, with which all parties were familiar, was located thirty feet inside their western boundary line. Appellant contended that an old fence line and four stumps, which were essentially in line with the big oak tree, marked the boundary. The difference between these two contentions was a thirty-feet-wide strip of land. The most recent survey prepared indicated that the appellees’ position was correct.
There were scores of witnesses at the hearing on this case. Appellee Mike Adams and many of the people who had farmed the land for appellees testified that everyone recognized an old fence line that had long been gone and a pecan tree in Ms. Henson’s yard as being on the boundary line. The land had been farmed for many, many years following this line, according to their testimony. The same type of testimony was elicited from appellant and his witnesses who claimed that Mr. Adams had encroached upon their land, and that the established boundary was in fine with the big oak tree, that being at the edge of Mr. Adams’s field. This essentially came down to a question of credibility and comparison of surveys. Weighing the evidence and giving the witnesses whatever credibility determinations they deserved, we cannot say that the chancellor erred in dismissing appellant’s complaint.
Adverse Possession
To establish title by adverse possession, the one claiming title bears the burden to prove that he had been in possession of the property continuously for more than seven years and that his possession was visible, notorious, distinct, exclusive, hostile, and with intent to hold against the true owner. Moses v. Dautartas, 53 Ark. App. 242, 922 S.W.2d 345 (1996). The proof required as to the extent of possession and dominion may vary according to the location and character of the land. Id. Whether possession is adverse to the true owner is a question of fact. Id. We need not discuss this point with any length because it is abundantly clear that there was no asserted adverse use for the required seven years.
Acquiescence
The case-law principles that govern whether a boundary line has been established by acquiescence are well settled. Whenever adjoining landowners tacitly accept a fence line and thus apparently consent to that as their property line, it becomes the boundary by acquiescence. Walker v. Walker, 8 Ark. App. 297, 651 S.W.2d 116 (1983). A boundary line by acquiescence is inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. Warren v. Collier, 262 Ark. 656, 559 S.W.2d 927 (1978); Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993). The period of acquiescence need not last for a specific length of time, but it must be for “many years” or “a long period of time” sufficient to sustain the inference that there has been an agreement concerning the location of the boundary line. See Seidenstricker v. Holtzendorff, 214 Ark. 644, 217 S.W.2d 836 (1949). This period varies with the facts of each case, just as all circumstantial evidence does, unlike the seven years required to take land by adverse possession, which is a statute of limitations for commencement of an action to recover land adversely possessed. See Ark. Code Ann. § 18-61-101 (a) (1987). Moreover, establishment of a boundary fine by acquiescence does not require adverse possession of the land by one party. See Morton v. Hall, 239 Ark. 1094, 396 S.W.2d 830 (1965). When the adjoining landowners occupy their respec tive premises up to the line they acquiesce in as the boundary for a long period of time, they and their grantees are precluded from claiming that the boundary thus acquiesced in is not the true boundary, although it may not be. Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972). A boundary line may be established by acquiescence whether or not preceded by a dispute or uncertainty as to the boundary line. Id. Where a boundary line by acquiescence can be inferred from other facts presented in a particular case, a fence line, whatever its condition or location, is merely the visible means by which the acquiesced boundary line is located. See Camp v. Liberatore, 1 Ark. App. 300, 615 S.W.2d 401 (1981). While appellant makes a better case for acquiescence than adverse possession, we cannot say that the chancellor erred in finding that Mr. Ward faded in carrying his burden of proof to show that there was a boundary by acquiescence.
Mr. Adams and his witnesses testified that the post that marked the true fine had been moved over thirty feet to the big oak tree in 1995. He contended that the true fine was thirty feet west of the big oak tree and in line with a pecan tree in the yard of Ms. Henson. One farmer in particular testified that in 1967, when he plowed the field for appellee’s predecessor in tide, he had to plow around the oak tree, and he remembered that the oak tree was between the seventh and tenth row in from the edge of the field. Witness after witness on behalf of appellee testified in the same manner.
It is appellant’s position that the eastern boundary of his property and Ms. Henson’s is a straight line, because they appear straight in the aerial photographs. Therefore, he argues that it is inconsistent that Ms. Henson prevailed on her adverse possession claim to a thirty-foot strip and that he did not prevail. However, appellant ignores that Ms. Henson, since her purchase of her land in 1988, mowed the strip of land that was contrary to the survey, and she had a building and plants and a flag pole on that strip of land. There was evidence that appellees came on to her land, digging up the soil in 1996, contrary to her established ownership since 1988. This was open, notorious, and clearly adverse to any claim by appellees. This is why she prevailed.
In addition, the tract of land between appellant’s and Ms. Henson’s, owned by the Staggs, was judicially determined to be in line with what the chancellor determined in this case. This boundary line runs south from a pecan tree growing in Ms. Henson’s yard — a landmark that multiple witnesses testified was used as a marker when plowing or tilling the land.
Appellant also mischaracterizes the clarity of the aerial photographs. The photographs were taken from such a distance that the plats of land appear in a quilt-like pattern. In our de novo review, we could not discern where any of the landmarks in question lay. The chancellor agreed that the boundary lines appeared to be in a “relatively straight line north and south between the properties,” but went on to state that “it would be difficult, if not impossible, for the court or anyone else to ascertain with any surety the angle from which the photos were taken, or the altitude, and or to calculate any distance shown from the middle of the big tree to the crops growing, east or west. An aerial photograph taken from an angle of even a few degrees to the east or west could create a totally different appearance of the crop fines and their location, as evidenced by the photos.” We do not find his conclusion regarding the photographs to be clearly erroneous.
While appellant makes much of the fact that some of appellees’ witnesses testified that there were wooden posts in fine with the big oak tree, he neglects to point out that those references were to periods of time after which appellees allege that appellant had moved those posts over thirty feet to the east, contrary to the true boundary fine. Consequently, this is of no help to appellant since it only goes to prove that appellant attempted to change the boundary fine just before litigation began.
We cannot say that the chancellor clearly erred in this case, and therefore we affirm.
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John Mauzy Pittman, Judge.
This case concerns a transaction in which appellant deeded 200 acres of land to appellees. Approximately two years after the transaction, appellant filed suit in Jefferson County Chancery Court to have the deed construed as a mortgage rather than a sale. The case went to trial, and the chancellor found that the deed effected a conveyance, not a mortgage. Appellant appeals from that ruling, raising three issues. We find no error and affirm.
Appellant, a former legislator, businessman, and the holder of a real estate broker’s license since 1984, owned 200 acres of what was primarily timber land in Jefferson County. He was in the habit of procuring funds by deeding the land to another for cash and retaining an option to repurchase. In 1993, he made such an arrangement with Dr. W.D. Brainard. By 1995, the arrangement required appellant to pay Dr. Brainard $26,000 or lose the land. Appellant approached several persons about borrowing money to pay off the Brainard debt and several other debts. One man, Shelby Taylor, offered to buy the land for $85,000. Appellant rejected this option and instead approached appellee Joe Ratliff. On September 28, 1995, the two men entered into the transaction that is the subject of this case. Appellant executed a deed conveying the 200 acres to appellees, subject to the terms of an Offer and Acceptance containing the following relevant provisions: Joe Ratliff, referred to as “Buyer”, was to “pay $36,000 for the property in cash.” Appellant, referred to as “Seller” was given a one-year option to “repurchase” the property for $41,000, plus reimbursement of reforestation expenses, not to exceed $10,000. He was also given the option, within the two years following, to repurchase the property by paying $5,000 per year to keep the option alive. Finally, appellant reserved for himself, for as long as the repurchase option was in effect, hunting rights on the land and the exclusive use of a deer camp.
In 1996, appellant paid appellees $5,000 to extend his option to repurchase the property. In March 1997, a fire allegedly caused by a Union Pacific train damaged 130 acres of timber on the property. A dispute arose between appellant and appellees as to who would benefit from a tort claim to be asserted against Union Pacific. Appellant filed suit, asking that he be declared the equitable owner of the property and that appellees be declared mortgage holders. Appellees answered that the deed between the parties evidenced a purchase rather than a loan, making them the outright owners of the property and owners of the claim against Union Pacific.
After a hearing, the chancellor held that appellant had not met his burden of proving by clear and convincing evidence that the transaction was meant to be a loan rather than a sale. He declared appellees owners of the land at the time of the fire loss and the proper recipients of any recovery from Union Pacific.
Appellant’s first argument is that the chancellor erred in finding the parties’ transaction was a sale rather than a mortgage. A grantor may show that a deed, absolute on its face, was intended only to be security for the payment of a debt and thus was in actuality a mortgage. Newport v. Chandler, 206 Ark. 974, 178 S.W.2d 240 (1944); Duvall v. Laws, Swain & Murdoch, P.A., 32 Ark. App. 99, 797 S.W.2d 474 (1990). A court of equity will treat a deed, absolute in form, as a mortgage when it is executed for the loan of money or as security for a debt. Nelson v. Nelson, 267 Ark. 353, 590 S.W.2d 293 (1979). However, the law presumes that a deed, absolute on its face, is what it appears to be. Davis v. Davis, 48 Ark. App. 95, 890 S.W.2d 280 (1995). The party claiming that a deed is in fact a mortgage has the burden of proving it. Id. The evidence establishing the transaction as a mortgage must be clear, unequivocal, and convincing. Wensel v. Flatte, 27 Ark. App. 5, 764 S.W.2d 616 (1989). Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction of the allegations sought to be established. Balch v. Leader Federal Bank, 315 Ark. 444, 868 S.W.2d 47 (1993).
On appeal, chancery cases are reviewed de novo, but we will not reverse the chancellor’s findings unless they are clearly erroneous. Brown v. Cole, 27 Ark. App. 213, 768 S.W.2d 549 (1989). Our test on review in a case such as this one is not whether we are convinced that there is clear and convincing evidence to support the chancellor’s findings but whether we can say that the chancellor’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Davis v. Davis, supra.
The question of whether a deed absolute on its face, when construed together with a separate agreement or option to repurchase, amounts to a mortgage or a conditional sale depends on the intention of the parties in light of all attendant circumstances. Duvall v. Laws, Swain & Murdoch, P.A., supra. The chancellor may consider the written terms of the parties’ contract, the circumstances of the parties, the property conveyed, its value, the price paid for it, defeasances, and the acts and declarations of the parties. Wimberly v. Scoggin, 128 Ark. 67, 193 S.W. 264 (1917).
The parties’ proof at trial reveals circumstances that point to the transaction’s character as a mortgage as well as circumstances that point to its character as a conditional sale. Appellant testified that he did not regard the transaction as a sale. He stated that he told appellee Joe Ratliff he did not want to sell the property, and he turned down an offer from Shelby Taylor to buy the property for $85,000. He presented expert testimony that the land was worth approximately $100,000, considerably more than the $36,000 paid by appellees. He also testified that, during the period when appellees held legal title, he made improvements on the deer camp located on the property. On the other hand, appellee Joe Ratliff testified that he had refused to loan money to appellant, but told him that he (Ratliff) would buy the property. Ratliff estimated the value of the land to be $40,000. He presented evidence that, at the time the transaction was closed, he and his wife paid a prorated portion of the 1995 property taxes and paid the 1996 taxes on October 9, 1997, the day before they were due. They also paid an additional premium for liability insurance on the property and defended a lawsuit involving a road on the property. Although appellees did not reforest the land, they spoke with a surveyor and the Forestry Department about reforesting in the future. Finally, they presented the testimony of Jimmy Dill, president of the Pine Bluff Title Company. Dill testified that he issued an owner’s title insurance policy rather than a mortgagee’s policy and that he took other steps that were indicative of a sale, such as using real-property-transfer tax stamps and issuing a 1099 tax form.
When evidence in a case is conflicting or evenly poised or nearly so, the judgment of the chancellor who had the opportunity to see and hear the witnesses in evaluating the evidence is persuasive. O’Bannon v. O’Bannon, 268 Ark. 823, 597 S.W.2d 825 (Ark. App. 1980). In reviewing questions such as the one presented in this case, great weight should be given to the opinion of the chancellor. Davis v. Davis, supra. In light of the language used in the parties’ deed and contract, appellant’s familiarity with real estate transactions, and the circumstances surrounding the case, we cannot say that the chancellor’s finding was clearly erroneous.
It is also noteworthy that appellant and appellees agreed at trial that appellees could not have forced appellant to pay the consideration named in the Offer and Acceptance for reconveyance. When such payment cannot be compelled, the transaction is generally regarded as a conditional sale. See Newport v. Chandler, supra; Duvall v. Laws, Swain & Murdoch, P.A., supra.
The final two points on appeal concern the trial court’s finding that appellees were entitled to the setdement proceeds with Union Pacific and appellant’s claim that the transaction was usurious. Because these issues are dependent upon resolution of the first issue in appellant’s favor, we need not address them.
Affirmed.
Robbins, C.J., and Crabtree, J., agree.
Appellant exercised his option to repurchase the land from appellees on October 1, 1997, several months after the fire.
A factor that distinguishes this case from Ehrlich v. Castleberry, 227 Ark. 426, 299 S.W.2d 38 (1957). | [
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John Mauzy Pittman, Judge.
The appellee accepted a position as president and chief operating officer of Worthen Banking Corporation in February 1994. The terms of his employment were established by a written agreement executed in July 1994. One of the terms of the agreement provided that, upon acceptance of appellee’s application for membership at the Little Rock Country Club, the employer would reimburse him for the initiation fee. After commuting for a short time from St. Louis, Missouri, to Little Rock, Arkansas, appellee moved his family to Little Rock in August 1994, and promptly applied for membership with the Little Rock Country Club. Worthen was acquired by appellant Boatmen’s Arkansas, Inc., in February 1995, pursuant to an agreement whereby Boatmen’s would become responsible for Worthen’s obligations, including Worthen’s employment agreement with appellee. Appellee was terminated after the acquisition. In January 1997, nearly two years after appellee’s termination, appellee’s application for membership at the Little Rock Country Club was accepted. Appellee requested that appellant reimburse him for the initiation fee; appellant refused to do so, and appellee filed the present lawsuit, alleging that Boatmen’s was obligated to pay the initiation fee under the terms of his employment agreement with Worthen. The circuit judge entered an order granting appellee’s motion for summary judgment, concluding that the obligation to reimburse appellee for the initiation fee became fixed at the time of his application to Little Rock Country Club. From that decision, comes this appeal.
For reversal, appellant contends that the trial judge erred in concluding that the obligation to reimburse appellee for the initia tion fee accrued upon appellee’s application for membership to the Little Rock Country Club. We agree, and we reverse and remand.
Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Cottrell v. Cottrell, 332 Ark. 352, 965 S.W.2d 129 (1998). The issue in the present case turns on the interpretation of a written agreement. A contract is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. Singh v. Riley’s, Inc., 46 Ark. App. 223, 878 S.W.2d 422 (1994). Our examination of that agreement leads us to conclude that it is unambiguous; therefore, its construction is a question of law for the court. Fryer v. Boyett, 64 Ark. App. 7, 978 S.W.2d 304 (1998). When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. Hampton Road, Inc. v. Miller, 18 Ark. App. 9, 708 S.W.2d 98 (1986). Different clauses of a contract must be read together and the contract construed so that all of its parts harmonize, if that is at all possible. Pate v. U.S. Fidelity and Guaranty Co., 14 Ark. App. 133, 685 S.W.2d 530 (1985). The intention of the parties is to be gathered not from particular words and phrases but from the whole context of the agreement. Id.
The employment agreement at issue in the present case provides, in pertinent part, that:
The terms and conditions of your at will employment are reflected below:
COMPENSATION
• Base Salary: $20,000 monthly (annual equivalent: $240,000)
• Car Allowance: $800.00 monthly plus mileage reimbursement for business-related trips outside a 25 mile radius
• Country Club Membership:
Reimbursement via payroll of membership dues at Chenal Country Club; reimbursement of appropriate, business-related expenses via Accounts Payable. Upon acceptance of your application for membership at the Litde Rock Country Club, WBC will reimburse you for the Initiation Fee; membership dues; and appropriate business-related expenses. In addition, concurrent with commencement of your Litde Rock Country Club membership, you will reimburse WBC for the transfer fee related to the Chenal membership and will discontinue such membership.
CHANGE-OF-CONTROL: SEVERANCE BENEFITS
In the event of a change-of-control which results in your termination within one (1) year of your effective date of employment, you will be entitled to receipt of the minimum executive severance benefit of twenty-four weeks of compensation. Such severance benefits, as well as the determination of “change-of-control” and resulting termination, shall be subject to and defined by the Worthen Banking Corporation Employee Protection Plan (EPP). Should a change-of-control and resulting termination occur subsequent to one (1) year of Worthen Banking Corporation service, you will receive severance benefits per the EPP or other established Severance Plan for WBC Executives in effect at the time of termination.
RELOCATION
• Expenses for locating new residence:
• Temporary living expenses:
• New residence purchase assistance:
• Sale of former residence:
Physical Move:
A review of the entire agreement shows that there were three pertinent sections dealing with payments to be made to appellee, and that these sections bear a logical relation to the time when the employer’s duty to make these payments would arise. The benefits enumerated under the “relocation” section of the agreement were clearly designed to secure appellee’s presence in Little Rock and thereby permit him to perform the duties of his employment; consequently, it follows that the employer’s duty to make payments under this section would accrue immediately upon appellee’s acceptance of employment. The benefits listed under the “severance” section of the agreement were, by their terms, to be payable only following appellee’s termination. It is equally clear that the benefits comprising the “compensation” section of the agreement were those benefits that the employer would be obligated to pay so long as appellee remained employed by the corporation. Reimbursement of appellee’s country club expenses was provided for in this section of the agreement, as were appellee’s salary and other items to be disbursed through the employer’s payroll. The parties agree that appellee was an employee at will. The right of an employee at will to compensation generally rests upon the performance of services and, upon termination of the employment, the employer has no duty to pay future wages. See Tumblin v. Gratech Corp., 448 So.2d 179 (La. Ct. App. 1984). Were we to adopt a contrary view, it would follow that the employer would be obligated not only to reimburse appellee for the initiation fee (an expense incurred nearly two years after the termination of his employment), but would also be obligated in perpetuity to reimburse appellee for his annual membership dues. We hold that, under the terms of the agreement, appellant’s obligation to reimburse appellee for the initiation fee would accrue only if appellee remained employed at the time appellee’s application was accepted. Consequently, we reverse and remand for further consistent proceedings.
Reversed and remanded.
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Sam Bird, Judge.
In each of these two cases, appellants Garry Metcalf and John Warren appeal the dismissal of their appeals to the Miller County Circuit Court under the Arkansas Teacher Fair Dismissal Act. Although the cases were not consolidated for trial or for appeal, the facts are essentially the same, the arguments are the same, and they were submitted simultaneously to this court. Therefore, we dispose of them in this one opinion.
Appellants argue on appeal:
I. The Arkansas Supreme Court erroneously construed Ark. Code. Ann. § 6-17-1506(a) in holding that a teacher may not avail himself of the appeal provisions of the Arkansas Teacher Fair Dismissal Act when he has entered into a “superseding contract” with the District. McCaskill v. Ft. Smith Public School District, 324 Ark. 488, 921 S.W.2d 945 (1996).
II. The court should reverse the award of attorney fees granted to the District if the trial court is reversed and the case is remanded for a decision on the merits.
We affirm.
In the spring of 1996, Garry Metcalf was head basketball coach at Arkansas High School and part-time assistant football coach in the Texarkana School District. In the spring of 1996, John Warren was head junior-high coordinator, head football coach for the eighth and ninth grade, ninth-grade basketball coach, and head baseball coach at Arkansas High School. Both men were also certified teachers and had teaching responsibilities.
In early 1996, both men were notified that the superintendent planned to recommend that they be reassigned. Metcalf was to become head coach of the girls track team for the 1996-97 school year; Warren was to become assistant junior-high football coach and assistant junior-high track coach for the 1996-97 school year. Both men requested a hearing before the Texarkana School Board and, after a lengthy hearing, appellants were reassigned. Neither of appellants suffered a pay reduction, and each maintained his classroom duties.
In June 1996, Metcalf and Warren appealed to the Miller County Circuit Court. In October, appellants signed new contracts with the district.
At their trials in circuit court, each of the appellants argued that the reassignment amounted to a nonrenewal of his contract and that the district had failed to comply with the Teacher Fair Dismissal Act and its own personnel policies. The circuit judge held that the Arkansas Supreme Court case of McCaskill v. Fort Smith Public School District, supra, controlled the cases and that, since appellants had signed new contracts with the district, they had no right to appeal to circuit court under the Arkansas Teacher Fair Dismissal Act. Their appeal to this court followed.
Arkansas Code Annotated section 6-17-1506 (Repl. 1993) provides:
(a) Every contract of employment made between a teacher and the board of directors of a school district shall be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the next school year succeeding the date of termination fixed therein, which renewal may be made by an endorsement on the existing contract instrument, unless by May 1 of the contract year, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed or, unless during the period of the contract or within ten (10) days after the end of the school year, the teacher shall deliver or mail by registered mail to the board of directors his or her resignation as a teacher, or unless such contract is superseded by another contract between the parties.
Arkansas Code Annotated section 6-17-303 (Repl. 1993) provides, “District school boards shall have authority to assign and reassign or transfer all teachers in schools within their jurisdiction upon the recommendation of the superintendent.”
In McCaskill, supra, our supreme court construed Ark. Code Ann. § 6-17-1506(a) and stated, “[Pjursuant to the very terms of section 6-17-1506(a), by appellant’s signing the 1990-91 contract, the 1989-90 contract was superseded and the notice requirements of The Teacher Fair Dismissal Act no longer applied.” In response to an argument of appellant, the court stated further, “Appellant simply cannot sign a superseding contract and then wait well past the Act’s limitation period for contesting the nonrenewal.” 324 Ark. at 493-94, 921 S.W.2d at 948.
At oral arguments, appellants contended that the contracts they signed in October 1996 were “new” contracts rather than “superseding” contracts. However, in his brief before this court, each appellant concedes that “Appellant did indeed sign a superseding contract. McCaskill was the law of the land in Arkansas and the trial judge was bound to follow it.”
Appellants ask us to reverse the decision of the Arkansas Supreme Court in McCaskill. The Arkansas Court of Appeals is not at liberty to overturn a decision of the Arkansas Supreme Court. See Conway v. State, 62 Ark. App. 125, 969 S.W.2d 669 (1998); Nelson v. Timberline Intl., Inc., 57 Ark. App. 34, 942 S.W.2d 260 (1997); Cheshire v. Foam Molding Co., 37 Ark. App. 78, 822 S.W.2d 412 (1992); Myles v. Paragould School District, 28 Ark. App. 81, 770 S.W.2d 675 (1983).
Because we are unable to provide appellants with the relief requested, we do not consider their argument to reverse the award of attorneys’ fees.
Affirmed.
Pittman, J., agrees.
Rogers, J., concurs. | [
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Josephine Linker Hart, Judge.
The parties married on July 14, 1990, and separated March 7, 1995. At the divorce hearing held on August 6, 1997, the Chancellor awarded appellee the divorce and ordered a division of property. Appellant contends the Chancellor erred by: (1) dividing equally shares of stock, sureties, and other investments; (2) dividing equally the net proceeds from the sale of the marital home; and (3) dividing equally appellant’s savings plan and retirement benefits that accrued during marriage.
All issues presented in this appeal deal with the division of property. In reviewing such cases, we affirm the findings of the chancery court unless these findings are clearly erroneous. Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993). We affirm the decision of the chancery court on issues (2) and (3). We affirm in part, reverse in part, and remand on issue (1).
A. Stocks
Appellant was employed by United States Tobacco, Inc. (“UST”). As a benefit of employment, appellant received options to purchase stock in UST. Five options were granted prior to the marriage. Of those five, three were exercised during the marriage. The appellant received six options during the marriage and exercised only one of these during the marriage. The chancellor, disregarding the options, ruled that all stock, securities, and other investments owned and retained by the parties from July 14, 1990, until August 6, 1997, be divided equally between the parties.
Five options are at issue in this case. Four of those options were granted prior to July 14, 1990, the date the parties were married, and one option was granted after their marriage.
The options were issued and exercised as follows:
Option Grant Exercise Date Number Loan Purchase Price
1. 06/06/86 10/09/90 1200 8,962.50 $10,162.50
2. 07/22/87 06/25/90 1200 0.00 17,100.00
3. 04/13/88 08/27/90 1600 0.00 24,600.00
4. 09/28/89 12/02/92 1000 0.00 13,781.25
5. 08/27/90 12/02/92 1200 0.00 17,812.50
The fifth option was granted on August 27, 1990, approximately one month after the parties were married, and is therefore a marital asset. Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510 (1983); Cate v. Cate, 35 Ark. App. 79, 812 S.W.2d 697 (1991). In Richardson, the court ruled that stock options constitute martial property if acquired during the marriage. The court further stated that the value of the option is the difference between the cost of exercising the option and the market value of the stock.
The fifth option was exercised on December 2, 1992, for a purchase price of $17,812.50. The option price was $14.84 per share and the market value on the exercise date was $33.56. Appellant sold sufficient shares at the market price to pay the commission cost and the option price for the shares. Appellant testified that he retained 300 shares of UST from that transaction. The 300 shares were later sold and the proceeds were used to purchase stock in a company known as “MSU.” The MSU stock acquired in this transaction is marital property, and the Chancellor properly awarded appellee one-half of those shares.
Appellant’s first option was granted on June 6, 1986, and was exercised on October 9, 1990. The option price was $8.47 per share and the market value on the exercise date was $30.56. Because the market price per share had increased by $21.09, the 1200 shares of UST had a value of $36,672.00 on the date of purchase. Appellant paid $1,200.00 cash toward the purchase price of $10,162.50 and financed the remaining balance of $8,962.50. Appellant’s use of marital funds in the purchase of this stock entitles appellee to an interest in the stock to the extent that marital funds were expended to purchase shares of stock. Id. Appellee’s interest does not extend to the benefits appellant acquired before marriage through his ownership of options. Appellant is entitled to receive as premarital property the difference between the purchase price granted in the option and the market price the parties would have paid for stock without the option. Had the parties spent $10,162.50 for stock at the market price of $30.56 per share, they would only have been able to purchase 332.5 shares of stock. Appellee is entitled to receive one-half of the shares that marital funds purchased, or 166.25 shares. The appellant is entitled to the benefit of the option or 867.5 shares as his premarital property and one-half or 166.25 of the shares purchased with the marital funds for a total of 1033.75 shares of stock.
The second option was granted on July 22, 1987, and was exercised on June 25, 1990, approximately one month before the marriage. The money exercised from that stock option was used to purchase U.S. Treasury stripped coupons on October 10, 1990. On December 21, 1992, the appellant sold the stripped coupons to purchase 150 shares of Wal-Mart stock, which he sold on November 13, 1996. With these proceeds, appellant purchased 339 shares of stock in MSU and 188 shares of stock in Sybase, Incorporated. This money is traceable and is nonmarital property. Ark. Code Ann. § 9-12-315(b) (Repl. 1998).
The third option was granted on April 13, 1988, and exercised on August 27, 1990. The option granted appellant the right to purchase 1600 shares of UST. This option was premarital property even though it was exercised after the date of the marriage. The option price was $15.38 per share for a total purchase price of $24,600. The market value of each share on the date the option was exercised was $29.69. Had the parties purchased 1600 shares at the market price, they would have paid $47,500.80; however, the option price allowed appellant to purchase the shares for $24,600. He paid for the shares by selling a portion of them at the market price and retained the remainder of the shares. Appellant then sold those shares, which were his premarital property, and used the proceeds, approximately $20,000, to remodel the marital home. Appellant received the money from the sale of the stock in August 1990, one month after the marriage. The deed to the marital home is in the name of both appellant and appellee. When property is placed in the names of a husband and wife, a presumption arises that they own the property as tenants by the entirety. This presumption can be overcome only by clear and convincing evidence that a spouse did not intend a gift of one-half interest to the other spouse. Boggs v. Boggs, 26 Ark. App. 188, 761 S.W.2d 956 (1988). When appellant invested his separate funds in the marital home, and that home was deeded in the names of both parties, a presumption arose that appellant intended a gift to appellee of an equal interest in the premarital funds he placed in the home. Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1975). Since appellant failed to rebut this presumption at trial, his separate interest in the funds was extinguished when appellee’s name was placed on the deed.
The fourth option was granted on September 28, 1989, and exercised on December 2, 1992. The option was for 1000 shares of UST at a purchase price of $13.78 per share. The market price per share on the exercise date was $33.56. Appellant sold sufficient shares at the market price to pay the commission cost and the option price for the shares. From this option, appellant retained over 300 shares of UST stock. Appellant then sold the UST stock and purchased stock in MSU. The option was premarital property, and the exercise of the option was effected without expending any marital funds. The net gain from the exercise of the option is appellant’s separate property because appellant was able to trace the ownership of the MSU stock through the sale of the UST stock. The increase in the market value of $33.56 above the $13.78 option price enabled the appellant to sell at the market price, pay for the option cost and the selling expenses, and use the difference to acquire stocks without using any marital funds to complete the transaction.
B. Real Estate
The Chancellor ordered the real property to be sold and the proceeds to be divided equally between the parties after payment of the mortgage and the expenses of the sale. Appellant seeks to be reimbursed for monies expended on improving the marital home with monies obtained through the exercise of a premarital stock option. As previously set forth in this opinion, the marital home was deeded in the joint names of the parties. The appellant’s expenditure of premarital funds on the marital home is presumed a gift.
Appellant failed to provide evidence to overcome the presumption. Appellant was unable to specify the exact amount he contributed to the remodeling of the home, and he did not produce any documentation to trace the expenditures claimed as premarital money. In Ramsey, the Arkansas Supreme Court held that when property is purchased in the names of both parties, a presumption arises that the party who invests funds in joint property intends a gift to his or her spouse of an equal interest in those funds. This presumption can only be overcome by clear and convincing evidence. Appellant’s proof did not overcome the presumption. The Chancellor did not err in requiring that the home be sold and the net proceeds from the sale be divided equally between the parties.
C. Retirement
Appellant had an employee retirement plan from which benefits were payable to him after he obtained the age of fifty-five. Appellant asserts that the plan had not vested because he could not obtain benefits therefrom until he reached age fifty-five. The Chancellor awarded appellee one-half of the retirement benefits accrued during the marriage. The Chancellor was correct. In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), the Arkansas Supreme Court held that a retirement plan that is vested but payable sometime in the future is a property right that is subject to division.
D. Savings
Appellant also invested in an employee savings plan. Appellant’s employer matched every dollar appellant invested in the plan. Appellee testified that she and appellant decided to invest in appellant’s savings plan because her employer’s savings plan only matched twenty-five percent of every dollar she invested. Appellant argues that the money contributed by his employer was a gift to him and, therefore, nonmarital property. The Chancellor awarded appellee one-half of the savings benefits contributed by appellant and by appellant’s employer during the course of the marriage. Appellant would not have received matching funds had he not been an employee and entitled to the benefits of his employer’s savings plan. The matching funds paid by the employer into appellant’s savings account are an employee benefit, not a gift.
We reverse and remand in part and affirm in part.
Robbins, C.J., and Jennings, J., agree. | [
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John Mauzy Pittman, Judge.
The appellants in this specific-performance case, Tulsi Bharodia and Amratben Patel, executed a contract whereby they agreed to purchase appellees’ house for $425,000. Various conflicts arose, and appellants attempted to withdraw from the agreement. Appellees sued for specific performance and, after a hearing, the chancellor ordered appellants to specifically perform the contract. From that decision, comes this appeal.
For reversal, appellants contend that the chancellor erred in denying their summary-judgment motion based on election of remedies; in granting specific performance where appellees had already elected a different remedy by refusing to return the earnest money; in retaining jurisdiction where appellees had an adequate remedy at law; in failing to give effect to the contractual provision requiring appellees to provide a disclosure statement; in granting specific performance where appellees were in violation of the terms of the contract; and in awarding attorneys’ fees in the exact amount of the earnest money. We find no error, and we affirm.
The transaction out of which this appeal arises began on August 3, 1994, when appellants offered to purchase appellees’ house for $425,000. Appellants extended their offer to appellees by filling in the pertinent blank spaces in a four-page form contract provided to them by their real estate agent. When appellants made their offer, they deposited $5,000 in earnest money with appellees’ real estate company. The next day appellees accepted the offer.
The parties’ contract contains a provision that requires the seller to make a timely disclosure to the buyer of the condition of the house. In pertinent part, this provision states:
Seller will provide to Buyer a disclosure about the condition of the Property which will contain information that it is true and correct to the best of the Seller’s knowledge. The disclosure will be presented to Buyer within three (3) business days of acceptance of this offer. Buyer has three (3) business days after receipt of disclosure to accept or reject said disclosure. If Seller fails to provide the disclosure in a timely manner, or if Buyer finds the disclosure unacceptable within three (3) business days after receipt, this contract may be declared null and void by the Buyer, with Buyer to receive a refund of the earnest money.
It is undisputed that appellees failed to comply with this provision of the contract when they failed to make the requisite disclosure to appellants by August 9, 1994, which was three business days after the date upon which the offer was accepted.
On August 15, 1994, appellants delivered to appellees’ real estate agent a writing entitled “Addendum To Offer and Acceptance.” In the addendum, appellant Bharodia stated that appellants wished to be released from the contract because the house had many structural defects and needed a great many repairs. Appellants attached to the addendum a report prepared by an inspector that they had hired to examine the house. Significantly, no mention of appellees’ failure to provide a disclosure statement was made in this addendum; instead, the issue was not raised until September 9, 1994, when appellants’ counsel sent appellees’ real estate company a letter requesting that appellees return to appellants their $5,000 in earnest money.
Appellees’ real estate company interpled appellants’ $5,000 in earnest money into the registry of the chancery court. In April 1995, appellees filed in chancery court a complaint requesting specific performance of the contract. In May 1995, appellants filed an answer to appellees’ complaint. In their answer, appellants pled as a defense to specific performance that appellees had failed to comply with the provision of the contract requiring them to make a written disclosure of the condition of the house within three business days of appellees’ acceptance of the offer to purchase the house.
Trial was held in April 1997. After hearing the testimony of the parties, the real estate agents involved in the transaction, and other witnesses, the chancellor took the case under advisement. On July 14, 1997, the court handed down an order granting appellees’ request for specific performance. In its order, the court found that appellees had breached the contract provision requiring them to make a written disclosure of the condition of the house within three business days of their acceptance of appellants’ offer. However, the court found that appellants waived their right to declare the contract void. The court set forth this finding in its order as follows:
[Appellants] in terminating the contract on August 15, 1994, did not list as one of their reasons the failure to receive the sellers’ disclosure statement .... The Court finds that [appellees] have the burden of proof to show that the [appellants] received the sellers’ disclosure statement. There is no signed receipt by [appellants] of receiving the disclosure statement and no corroborating evidence that [they] actually received the document. Since the burden of proof is on [appellees] to prove that [appellants] received the document, the Court finds that [appellees] failed in their burden of proof. Therefore, the Court finds that [appellants] did not receive the sellers’ disclosure statement.
[Appellants] terminated the contract with [appellees] by stating that there were alleged structural defects in the home. [Appellants] did not give as one of the reasons for termination the failure to receive the disclosure statement. Even though [appellants] had a right to terminate the contract for not receiving the disclosure statement, the Court finds [appellants] waived their right to terminate the contract using that as a reason ....
The court also entered an order awarding appellees’ counsel an attorney’s fee of $5,000.
The standards we apply when we review a chancery court’s decision are well established. Although we try chancery cases de novo on the record, we do not reverse unless we determine that the trial court’s findings of fact are clearly erroneous. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). In reviewing a chancery court’s findings of fact, we give due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Id. A chancery court’s finding of fact is clearly erroneous when, although there is evidence to support the court’s decision, after looking at all the evidence we are left with a definite and firm conviction that a mistake has been committed. Bishop v. Bishop, 60 Ark. App. 164, 961 S.W.2d 770 (1998); Lowell v. Lowell, 55 Ark. App. 211, 934 S.W.2d 540 (1996). Furthermore, we do not reverse a trial court’s determination that a party breached a contract unless we conclude that the trial court’s determination was clearly erroneous. See Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997); Jocon, Inc. v. Hoover, 61 Ark. App. 10, 964 S.W.2d 213 (1998).
Appellants first contend that the chancellor erred in denying their summary-judgment motion based on election of remedies. We are unable to address this issue, however, because in the absence of special circumstances not applicable here, the denial of a motion for summary judgment is not subject to review on appeal. Daniels v. Colonial Ins. Co., 314 Ark. 49, 857 S.W.2d 162 (1993).
Appellants next contend that the chancellor erred in granting specific performance where appellees had already elected a different remedy by refusing to return the earnest money. Appellants argue that appellees elected the remedy of keeping the $5,000 in earnest money, and that appellees are therefore barred by the election-of-remedies doctrine from seeking a different remedy, i.e., specific performance of the contract. Election of remedies is an affirmative defense that must be specifically raised by defendants in their answer, and failure to do so results in a waiver of the right to assert the defense at trial. Strout Realty, Inc. v. Burghoff, 19 Ark. App. 176, 718 S.W.2d 469 (1986). Here it is clear that appellants did not raise the election-of-remedies defense in their answer, and that the issue was not considered until well into the litigation when the question was broached by the chan cellor. Given appellants’ failure to raise this issue in the original responsive pleading, we find no error on this point.
Next, appellants argue that the chancellor erred in retaining jurisdiction where appellees, as vendors of the property, had an adequate remedy at law. We do not agree. Our supreme court has long held that, where an estate or interest in land is the subject matter of the agreement, the jurisdiction of a court of equity to enforce specific performance is undisputed and does not depend upon the inadequacy of the legal remedy in the particular case. See, e.g., Dickinson v. McKenzie, 197 Ark. 746, 126 S.W.2d 95 (1939).
Appellants next contend that the chancellor erred in failing to give effect to the contractual provision permitting appellants to declare the contract null and void if appellees failed to provide a disclosure statement in a timely manner. The chancery court recognized that the contract contained such a provision, but found that appellants had waived their right to declare the contract void because appellants failed to make any mention of appellees’ failure to comply with the disclosure provision in their August 15, 1994, written addendum to the contract in which they asked to be released from their duty to buy the house. Instead, appellants merely stated in the addendum that they wanted to be released from the contract because of the many structural problems that were discovered after they had the house inspected on August 7, 1994. We think that the chancellor’s finding of waiver is supported by the facts and the law. Arkansas courts have held that a party may waive a breach of contract by the other side, yet still be liable for his own subsequent breach of the contract. Southern Pipe Coating, Inc. v. Spear & Wood Mfg. Co., 235 Ark. 1021, 363 S.W.2d 912 (1963). It has also been held that a party with knowledge of a breach of contract by the other party waives the right to insist on a forfeiture when he allows the other party to continue in performance of the contract. Grayson-McLeod Lumber Co. v. Slack-Kress Tie & Stave Co., 102 Ark. 79, 143 S.W. 581 (1912); Stephens v. West Pontiac-GMC, Inc., 1 Ark. App. 275, 647 S.W.2d 492 (1983). Finally, it has been said that:
Where a party advances a particular reason for his conduct or decision arising under a contract, he cannot afterward advance another reason to the detriment of the opposing party. Where a party refuses to perform the contract on the ground of a specific breach by the other party he waives all other breaches then known to him.
17A C.J.S. Contracts § 492(1) (1963). Here, appellants knew three days after signing the agreement that appellees had failed to timely provide the disclosure statement, but based their attempted repudiation of the contract on other grounds. Furthermore, by failing to specify the lack of a disclosure statement as grounds for refusal to perform the contract, and by instead grounding their refusal on the alleged structural defects disclosed by their inspection, appellants encouraged further action by appellees. Appellees had a contractual right to repair any defects revealed by appellants’ inspection of the premises. In furtherance of this right, appellees incurred expenses by hiring an engineer to perform an additional inspection of the house to determine its structural integrity and to recommend repairs that would be reasonably necessary to assure the continued structural performance of the house. Appellees’ engineer prepared his report on August 24, 1994, and appellees at all times expressed their willingness to repair the defects in the home. It was not until approximately two weeks after appellees incurred this expense that appellants raised, for the first time, the failure to provide a disclosure statement as grounds for their refusal to perform the contract.
It has been held that a party to a contract who intends to insist on a forfeiture must do so at once, and that the forfeiture will be waived if the other party is permitted to proceed with performance. Arkansas Municipal Bond Bureau, Inc. v. Fouke Special School District No. 15, 203 Ark. 677, 158 S.W.2d 28 (1942). Moreover, a party to a contract containing a time limit for performance will not be permitted to deny liability because the contract was not performed within the specified time if, after the expiration of that time limit, he induces the other party to continue in performance of the contract. Id. Although it is true, in the present case, that appellants refused to perform the contract, they based that refusal on the existence of structural defects that appellees had a contractual right to cure. We think that appellants, by basing their refusal to perform on such defects, induced appellees to continue performance of the contract by engaging an engineer to recommend necessary repairs. In most cases, the issue of whether or not a waiver occurred is a question of fact, Bright v. Gass, 38 Ark. App. 71, 831 S.W.2d 149 (1992), and under these circumstances, we cannot say that the chancellor’s finding of waiver was clearly erroneous.
Next, appellants contend that the chancellor erred in granting specific performance where appellees were in violation of the terms of the contract. This point for reversal, in essence, asks us to review the case de novo and reverse on the grounds that the chancellor’s order of specific performance was inequitable. However, because appellants’ arguments under this point hinge on their assertions that they did not waive appellees’ failure to provide a disclosure statement and that appellees were not entided to specific performance because they had an adequate remedy at law, we need not address this point further because we have already decided those issues adversely to appellants.
Finally, appellants contend that the chancellor erred in awarding attorneys’ fees. With regard to the chancery court’s award of a $5,000 fee to appellees’ counsel, we note that pursuant to statute a trial court may award attorney’s fees to the prevailing party in an action involving breach of contract. Ark Code Ann. § 16-22-308 (Repl. 1994). Furthermore, the decision whether to award fees and how much to award is a discretionary determination that will be reversed only if the appellant can demonstrate an abuse of discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998). Here, appellees requested attorneys’ fees in excess of $35,000, and we cannot say that the chancellor’s award of $5,000 in attorneys’ fees was an abuse of discretion.
Affirmed.
Bird and Meads, JJ., agree.
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Josephine Linker Hart, Judge.
This is a breach-of-contract case. Appellee, Arkansas Pulpwood Company, Inc., signed a contract with appellant, Terri Santifer, to purchase standing timber on a sixteen-acre tract that she and her husband, appellant Mike Santifer, owned. The timber contract that appellee and Terri Santifer signed had a warranty-of-title provision that appel- lee alleged appellants breached. According to appellee, appellants had breached the warranty-of-title provision because another timber company had an unrecorded deed, without an acknowledgment, to the timber that it had purchased from the appellants’ predecessor-in-title. Appellee sued appellants in Ouachita County Circuit Court and sought damages of $16,500. The circuit court, sitting as the trier-of-fact, returned a verdict in appellee’s favor and awarded appellee the $16,500 in damages it requested. The circuit court entered a judgment in appellee’s favor, which appellants challenge on appeal. We affirm the judgment as to appellant Terri Santifer and reverse and dismiss the judgment as to appellant Mike Santifer.
In July 1997, appellee fried an amended complaint against appellants in Ouachita County Circuit Court. Therein, appellee alleged that in August 1996, pursuant to a contract, it purchased from Terri Santifer for $10,000 the timber located on certain land that she owned. Appellee alleged further that the timber contract had a warranty-of-title provision that Terri Santifer breached. Appellee alleged that Terri Santifer breached the warranty-of-title provision in that a predecessor-in-tifle to her land, William Marks, had previously conveyed the timber thereon to a third party, the Becton Timber Company, Inc. Appellee alleged further that “[appellant] Mike Santifer was involved in this transaction, acquiesced to the sale, made certain representations to [appellee] and is hable with Terri Santifer for the breach of warranty of tide.” With regard to damages, appellee stated in its complaint, “As a result of [appellants’] breach of warranty-of-title in the timber deed, [appellee] is entitled to recover judgment against the [appellants] for the damages suffered by [appellee]. Those damages consist of $16,500.00 paid by [appellee] to Becton Timber Co., Inc. to settle Becton’s prior claim and ownership of the timber.”
In August 1997, appellants filed an answer to appellee’s amended complaint. In essence, appehants denied that they had breached the warranty-of-title provision of the timber contract. In January 1998, the case went to trial before the circuit court. After hearing the testimony of several witnesses, including appellants and a co-owner of appellee, the circuit court allowed counsel to submit posttrial briefs and took the matter under advisement. On March 27, 1998, the circuit court issued a letter opinion setting forth findings of fact and conclusions of law. Therein, the circuit court set forth its finding that Terri Santifer had sold standing timber to appellee pursuant to a timber contract and that she had breached the warranty-of-tide provision in the contract in that another timber company, the Becton Timber Co., had an unrecorded deed to the timber when she sold the timber to appel-lee. Moreover, the court found that appellant Mike Santifer was liable for breach of the contract’s warranty-of-title provision even though he had not signed the contract. The court also found that appellee was entitled to $16,500 in damages. Subsequently, on April 13, 1998, the circuit court caused to be entered a judgment in appellee’s favor that incorporated its letter opinion. It is this judgment that appellants challenge on appeal.
Appellants raise three allegations of error. First, they assert that the circuit court erred in concluding that appellee was not estopped from claiming that they had breached the warranty-of-title provision of the timber contract. In addition, they maintain that the circuit court erred in awarding appellee $16,500 in damages. Finally, appellants contend that the circuit court erred in finding appellant Mike Santifer Hable for breach of the warranty-of-tide provision of the timber contract even though he did not sign the contract.
The standard that we apply when we review a judgment entered by a circuit court after a bench trial is well estabHshed. We do not reverse such a judgment unless we determine that the circuit court erred as a matter of law or we decide that its findings were clearly against the preponderance of the evidence. Riffle v. United Gen. Title Ins. Co., 64 Ark. App. 185, 984 S.W.2d 47 (1998). Disputed facts and determination of the credibility of witnesses are within the province of the circuit court, sitting as the trier of fact. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d. 464 (1998).
Appellants’ first allegation of error is procedurally barred from our review. Appellants assert that the circuit court erred in failing to conclude that appellee was estopped from recovering damages based upon their breach of the warranty-of-title provision in the timber contract at issue. In essence, appellants base their estoppel argument on testimony by John Dawson, III, a co-owner of appellee, in which he admitted Mike Santifer had told him that L.D. Becton had a deed to the timber at issue, which he had obtained from appellants’ predecessor-in-title, William Marks, and that appellant Mike Santifer had told him that L.D. Becton’s timber deed had expired. Appellants failed to raise this estoppel theory in their initial answer to appellee’s complaint and also failed to raise it in their answer to appellee’s amended complaint. Estoppel is an affirmative defense and, as such, must be raised at trial by the defendant in his or her answer or by an amendment thereto. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997). However, the affirmative defense of estoppel can be raised at trial, even though the defendant failed to plead it in his answer, by the express or implied consent of the parties. Id.; Arkansas Dept. of Human Servs. v. Cameron, 36 Ark. App. 105, 818 S.W.2d 591 (1991). Even if appellants raised the estoppel issue by an implied amendment of their answer to appellee’s amended complaint, they are still procedurally barred from obtaining review of this issue because they failed to obtain a ruling from the circuit court on it. Examination of the circuit court’s order, its letter opinion, and its rulings during trial shows that the appellants never obtained a ruling on the estoppel issue that they present to us. Because they failed to do so, our review of this allegation of error is barred. See Killam v. Texas Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990).
For their second allegation of error, appellants contend that the circuit court erred in awarding appellee damages of $16,500. According to appellants, appellee was not entitled to $16,500 in damages because it failed to take reasonable steps to mitigate damages after appellee discovered that appellants had breached the warranty-of-tide provision of the timber contract at issue. Appellants’ allegation of error in this regard is meritless because they failed to put before the circuit court proof of the manner in which appellee could have taken action to mitigate its damages and proof of the amount of damages that might have been avoided had appellee taken such action. See Minerva Enterprises, Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992).
Finally, appellants assert that the circuit court erred in determining that appellant Mike Santifer was liable for breach of the warranty-of-title provision in the timber contract at issue. With regard to Mike Santifer’s liability, the circuit court set forth the following findings of fact and conclusions of law in its March 27, 1998, letter opinion:
Another issue concerns the liability of [appellant] Mike Santifer. The written contract between these parties was signed only by Terri Santifer. The document prepared by [appellants] included Mike Santifer as a signatory, but this document was revised at the direction of [appellants] to list only the name of Terri Santifer. The reason for deleting the name of Mike Santifer was that Mike Santifer had had financial difficulties and the presence of his name on a public record by which he would receive certain monies might cause the attachment of those monies by creditors. All of the negotiations associated with this agreement were between [appellee] and Mike Santifer. [Appellee] agreed to accommodate [appellants] in this regard and list only Terri Santifer on the contract, even though Mike Santifer should have been listed because of his curtesy interest. [Appellee] relied upon the representations of [appellants] and as a result has been damaged. [Appellants] are, therefore, estopped to claim that Mike Santifer should not be held hable. Accordingly, [appellant] Mike Santifer is jointly and severally Hable with Terri Santifer.
At trial, appellee’s co-owner, John Dawson, III, testified that in August 1996, appellee paid Terri Santifer $10,000, pursuant to the timber contract at issue, for the timber described therein. Mr. Dawson testified further that he negotiated the purchase of the timber with Mike Santifer only and that Mike Santifer told him that he owned the land upon which the timber was located and that he had recently purchased it. He also testified that after he and Mike Santifer finished their negotiations for the purchase of the timber, appellee’s “office” prepared a timber contract that stated Mike Santifer and Terri Santifer were grantors. Moreover, he testified that appellants’ lawyer had redrafted the timber contract so as to note only Terri Santifer as the grantor. With regard to why appellants’ counsel made this change in the timber contract, Mr. Dawson stated, “[Appellants’ attorney] advised us that Terri Santifer was the one that had to sign . . . come to find out later that Mr. Santifer had some hen or something with the State and owed the State money and he didn’t want this timber money to be caught up in that so he wasn’t going to sign the timber deed.”
At trial, on direct examination, Mike Santifer stated that he and his wife had purchased the sixteen acres, on which the timber at issue was located, from William Marks in May 1996. On cross-examination, Mike Santifer admitted that he had a state tax Hen against him and that was the reason he did not want his name on the timber contract and did not want his name on the check that appellee used to pay for the timber. He also admitted that if his lawyer had not advised him not to sign the timber contract, he would have done so. Moreover, he admitted that when he was negotiating the sale of the timber with appellee’s co-owner, John Dawson, III, he was speaking on behalf of himself and his wife and he also admitted that he felt as much a party to the timber contract as his wife.
The circuit court erred in concluding that Mike Santifer was estopped from denying his liability for breach of the warranty-of-title provision. Four elements are necessary to establish estoppel. They are: 1) the party to be estopped must know the facts; 2) the party to be estopped must intend that his conduct be acted on or must act so that the party asserting the estoppel had a right to believe it was so intended; 3) the party asserting the estoppel must be ignorant of the facts; and 4) the party asserting the estoppel must rely on the other’s conduct and be injured by that rebanee. City of Russellville v. Hodges, 330 Ark. 716, 957 S.W.2d 690 (1997).
With regard to the first element of estoppel ■— knowledge of the facts — there was no proof before the circuit court that appellant Mike Santifer knew Becton Timber Company’s timber deed was valid when appellee entered into the timber contract with his wife, Terri. John Dawson, III, admitted that appellant Mike Santifer told him that he believed Becton Timber Company’s deed had expired before appellee purchased the timber at issue from Terri Santifer. Appellee never proved that appellant Mike Santifer did anything with regard to Becton Timber Company’s deed except tell what he believed to be the truth about it, which was that it had expired. Moreover, with regard to the fourth element of estoppel — reliance on the other’s conduct —■ there was no proof before the circuit court that appellee purchased the timber at issue in rebanee on assurances from Mike Santifer that, despite his not signing the timber contract as a grantor, he would warrant the good title of the timber at issue. In summary, the circuit court would have been correct if it had merely concluded that appellant Mike Santifer was estopped from denying that he had told John Dawson, III, that Becton Timber Company’s timber deed had expired, but it erred in concluding that he was estopped from denying his liability for breach of the warranty-of-title position of the timber contract.
For the reasons set forth above, we affirm the judgment at issue as to appellant Terri Santifer and reverse the judgment as to appellant, Mike Santifer, and dismiss.
Affirmed in part and reversed and dismissed in part.
Rogers and Stroud, JJ., agree.
We note that appellants could have, but did not, challenge the correctness of this conclusion of law by arguing on appeal that Becton Timber Company’s timber deed was invalid because it was unacknowledged and unrecorded and, therefore, would not prevent appellee from having good title to the timber as a bona fide purchaser, pursuant to Ark. Code Ann. § 14-15-404(b) (Repl. 1998). | [
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John B. Robbins, Chief Judge.
Noe Garza was charged with possession of marijuana with intent to deliver, to which he pleaded not guilty on May 29, 1996. His trial was set for October 14, 1996, and he was released from jail on June 12, 1996, after appellant A-l Bonding posted a $75,000.00 bond. On October 2, 1996, Mr. Garza was to appear at a preliminary hearing, but failed to do so. Johnny Rockett, a representative of A-l Bonding who attended the hearing, was directed to find Mr. Garza and return him to jail. A warrant was issued for Mr. Garza’s arrest because of his failure to appear, and the prosecuting attorney was ordered to commence forfeiture proceedings on the bond.
A-l Bonding received a letter on January 8, 1997, advising it that a forfeiture proceeding was set for hearing on May 7, 1997. Mr. Rockett appeared at the May 7, 1997, hearing and explained to the trial court that A-l Bonding had made numerous unsuccessful attempts to apprehend Mr. Garza, who had apparently absconded to Mexico. Mr. Rockett testified that “[w]e have made five trips to south Texas” and that Gary Kennedy went into Mexico and located Mr. Garza, but they needed more time to extradite Mr. Garza by legal means. Mr. Rockett predicted that A-l Bonding could have Mr. Garza returned to jail in thirty to forty-five days, and he estimated that around $15,000.00 had already been spent in their attempts at picking him up.
At the conclusion of the May 7, 1997, hearing, the trial court announced that “the bond will be forfeited.” It ordered the deputy prosecuting attorney to prepare an order forfeiting the bond, but leaving open the issues of the amount of expenses incurred by A-l Bonding in attempting to apprehend Mr. Garza, and whether A-l Bonding would be given credit for those expenditures against the $75,000.00 forfeiture. The trial court then scheduled a hearing for June 25, 1997, for the purpose of determining the extent of any credit for A-l Bonding’s expenses.
On May 20, 1997, A-l Bonding returned Mr. Garza to the county jail. At that time, Mr. Rockett and a deputy sheriff signed a “Bond Surrender Agreement,” which purported to relieve A-l Bonding of all liability on the bond.
On June 18, 1997, a written judgment for forfeiture of the bond was filed in the circuit clerk’s office, pursuant to the directive of the trial court on May 7, 1997. Then, on June 25, 1997, A-l Bonding filed a motion to amend findings of fact, to set aside judgment, and for new trial. In its motion, A-l Bonding asked that the judgment be set aside because Mr. Garza was returned to the county jail before the judgment was filed. A-l Bonding also requested a new trial, and all other relief to which it may be entitled. The trial court continued the scheduled June 25, 1997, hearing until August 6, 1997, for the purpose of addressing these issues as well as any possible setoff in A-l Bonding’s favor as a result of its expenses incurred in attempting to apprehend Mr. Garza.
At the August 6, 1997, hearing, A-l Bonding took the position that no judgment was entered on May 7, 1997, and that there was not an effective bond forfeiture prior to Mr. Garza’s return on May 20, 1997. Mr. Rockett testified that, after the May 7, 1997 hearing, he was under the impression that they had an extension of time to apprehend Mr. Garza. Mr. Kennedy testified that, had he known the forfeiture was final, he would not have continued to pursue the matter. He then discussed the expenses involved in his efforts, which included several trips to south Texas and Mexico, hotel expenses, cellular phone expenses, and printing expenses for “reward” posters. Mr. Kennedy also indicated that he had to pay informants and the Mexican Federales, and had to employ an International Interdiction Recovery Team at a price totaling 55% of the bond. Although Mr. Kennedy produced no documentation of any expenses, he estimated that they exceeded $60,000.00.
After the August 6, 1997, hearing, the trial court found that while the June 18, 1997, order was not final and appealable, it was only because the issue of setoff expenses had been left open for resolution at a subsequent hearing. The trial court found that the bond had already been forfeited, and that this issue was res judi-cata. Although the trial court denied all of A-l Bonding’s motions, it allowed a $15,000.00 setoff for funds expended in apprehending Mr. Garza.
A-l Bonding now appeals from the trial court’s decision, and raises two arguments for reversal. First, it contends that, because Mr. Garza was surrendered before a judgment or forfeiture was entered, the trial court was without authority to forfeit the bond. In the alternative, A-l Bonding argues that the trial court abused its discretion in failing to award the full expenses incurred in its efforts to apprehend Mr. Garza.
For its first argument, A-1 Bonding cites Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989), in which our supreme court held that a judgment is not effective until it is “entered” as provided by Ark. R. Civ. P. 58; merely announcing the judgment from the bench is insufficient. A-1 Bonding asserts that, while the trial court announced the bond forfeiture on May 7, 1997, the judgment was not entered until after Mr. Garza had been returned to the county jail, and this fact rendered the judgment ineffective.
Arkansas Code Annotated section 16-84-114 (Supp. 1997) provides, in pertinent part:
(a)(1) At any time before the forfeiture of their bond, the surety may surrender the defendant, or the defendant may surrender himself, to the jailer of the county in which the offense was committed.
(2) However, the surrender must be accompanied by a certified copy of the bail bond to be delivered to the jailer, who must detain the defendant in custody thereon as upon a commitment and give a written acknowledgment of the surrender.
(3) The surety shall thereupon be exonerated.
Arkansas Code Annotated section 16-84-201 (Supp. 1997) provides:
(a)(1)(A) If the defendant fails to appear for trial or judgment, or at any other time when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court may direct the fact to be entered on the minutes, and shall promptly issue an order requiring the surety to appear, on a date set by the court not less than ninety (90) days nor more than one hundred twenty (120) days after the issuance of the order, to show cause why the sum specified in the bail bond or the money deposited in lieu of bail should not be forfeited.
(B) The one hundred twenty-day period begins to run from the date notice is sent by certified mail to the surety company at the address shown on the bond, whether or not it is received by the surety.
(2) The order shall also require the officer who was responsible for taking of bail to appear, unless:
(A) The surety is a bail bondsman; or
(B) The officer accepted cash in the amount of bail.
(b) The appropriate law enforcement agencies shall make every reasonable effort to apprehend the defendant.
(c)(1) If the defendant is surrendered, arrested, or good cause is shown for his failure to appear before judgment is entered against the surety, the court shall exonerate a reasonable amount of the surety’s liability under the bail bond.
(2) However, if the surety causes the apprehension of the defendant, or the defendant is apprehended within one hundred twenty (120) days from the days of receipt of written notification to the surety of the defendant’s failure to appear, no judgment or forfeiture of bond may be entered against the surety, except as provided in subsection (e) of this section.
(d) If, after one hundred twenty (120) days, the defendant has not surrendered or been arrested, prior to judgment against the surety, the bail bond or money deposited in lieu of bail may be forfeited.
(e) If, before judgment is entered against the surety, the defendant is located in another state, and the location is known, the appropriate law enforcement officers shall cause the arrest of the defendant and the surety shall be liable for the cost of returning the defendant to the court in an amount not to exceed the face value of the bail bond.
(f) In determining the extent of liability of the surety on a bond forfeiture, the court may take into consideration the expenses incurred by the surety in attempting to locate the defendant and may allow the surety credit for the expenses incurred.
Although A-1 Bonding submits that Ark. Code Ann. § 16-84-114(a)(3) (Supp. 1997) entitles it to complete exoneration, we find otherwise. Arkansas Code Annotated section 16-84-114(a)(1) (Supp. 1997) provides that, to be entitled to complete exoneration, the defendant must be surrendered before forfeiture of the bond, and here that did not occur. Although the judgment against A-l Bonding was not entered until after Mr. Garza was surrendered, the forfeiture became effective when announced'on May 7, 1997. The trial court in this case correctly complied with Ark. Code Ann. § 16-84-201 (c)(1) (Supp. 1997), which provides for the exoneration of a reasonable amount of the surety’s liability if he is surrendered before judgment is entered. Mr. Garza was surrendered after the forfeiture but prior to entry of the judgment, and the trial court credited A-l Bonding with $15,000.00 against the $75,000.00 forfeited bond in accordance with the above statutory authority.
A-l Bonding’s remaining argument is that the trial court failed to award the full expenses incurred in its efforts to apprehend Mr. Garza. It notes that, at the August 6, 1997, hearing, Mr. Kennedy estimated these expenses to be more than $60,000.00
Pursuant to Ark. Code Ann. § 16-84-201 (f) (Supp. 1997), the trial court took into consideration the expenses incurred by A-l Bonding, and determined that they totaled only $15,000.00. A trial court’s decision in this regard will not be reversed absent an abuse of discretion, see Liberty Bonding Co. v. State, 270 Ark. 434, 604 S.W.2d 956 (1980), and in the case at bar we find no abuse of the trial court’s discretion. At the May 7, 1997, hearing, Mr. Rockett estimated the expenses at $15,000.00. While Mr. Kennedy later testified that over $60,000.00 was expended in recovering Mr. Garza, he produced no documentation of any of the asserted expenses, and the trial court was not obligated to accept his testimony given that it is its duty to judge the credibility of the witnesses. See Shibley v. State, 324 Ark. 212, 920 S.W.2d 10 (1996).
Affirmed.
Neal and Crabtree, JJ., agree. | [
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Margaret Meads, Judge.
On August 18, 1997, Zachary Daniel, a juvenile, was adjudicated dehnquent for the offenses of sexual abuse in the first degree and failure to appear, and an order to that effect was filed of record the following day. A disposition hearing was set for August 27, 1997. The behavior comprising the basis for the sexual-abuse charge occurred on June 24, 1996, when appellant was fourteen years old. The State has filed a motion to dismiss the appeal on the basis that the order from which appellant appeals is not a final appeala-ble order. We agree; therefore, we dismiss the appeal.
The requirement that an order be final to be appealable is a jurisdictional requirement. K. W. v. State, 327 Ark. 205, 937 S.W.2d 658 (1997). The purpose of the finality requirement is to avoid piecemeal litigation. Id. An order is final if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy; the order must put the judge’s directive into execution, ending the litigation, or a separable branch of it. Id.
Appellant filed his Notice of Appeal on September 18, 1997, appealing the August 19 adjudication order. However, the August 19 order specifically stated that appellant was to return to court on August 27, 1997, for a disposition hearing. By agreement of the parties, the disposition hearing was continued to September 8, 1997, at which time appellant was committed to the Arkansas State Hospital/Sexual Offender Program. Appellant argues, without citation to any authority, that the September 8 hearing and disposition order were collateral matters and that the August 19 order constituted a final order. We disagree. When an order provides for a subsequent hearing, that provision prevents the order from being a final order. See Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992). There was no final, appealable order in the present case until the entry of the September 8, 1997, disposition order.
In his response to the State’s motion to dismiss, appellant attached a copy of the September 8 order, and we deemed the record to be supplemented with this order. However, as the State properly points out, this inclusion does not cure the jurisdictional defect. A notice of appeal must designate the judgment or order appealed from, Ark. R. App. P. — Civ. 3(e) (1998), and orders not mentioned in a notice of appeal are not properly before the appellate court. Arkansas Dep’t of Human Servs. v. Shipman, 25 Ark. App. 247, 756 S.W.2d 930 (1988). Because the final appealable order was not designated in appellant’s notice of appeal, and because the August 19, 1997 order that was designated in appellant’s notice is not a final order, we cannot reach the merits of appellant’s argument regarding the adjudication hearing.
Appeal dismissed.
Robbins, C.J., and Stroud, J., agree. | [
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D.P. Marshall Jr., Judge.
This car-wreck case was tried only on damages. The focus was plaintiff Stephen More-head’s injuries. At trial, and over defendant Lee Battles’s objection, Morehead testified about his recent treatment by a doctor not revealed in his discovery responses. Morehead had answered the discovery approximately two years before trial and had not supplemented his responses about the additional medical treatment. This new doctor and treatment came as a surprise to everyone but More-head. After the verdict, Battles unsuccessfully sought a new trial with a Rule 59 motion and then a Rule 60 motion to vacate the judgment. Battles’s timely appeal presses several points. The dispositive question is this: Did the circuit court make an error of law about a constructive fraud in Morehead’s incomplete discovery responses, and thus abuse its discretion by denying Battles relief under Rule 60? Downum v. Downum, 101 Ark. App. 243, 247, 274 S.W.3d 349, 352 (2008) (standard of review). It did. The undisputed facts and governing law establish that a constructive fraud occurred when Morehead did not fulfill his duty of supplementing his discovery responses about his medical treatment. We therefore reverse the judgment and remand for a new trial.
I.
Taking multi-tasking to a new level, Battles backed his car through an intersection while talking on his cell phone and watching television. Morehead was driving through the intersection in his pick-up truck pulling a trailer with a boat on it. The collision damaged Morehead’s vehicles and hurt him. The impact twisted and banged him around, injuring Morehead’s right shoulder, neck, and right arm.
Morehead’s injuries were the hub of this case. Battles’s interrogatory no. 16 asked Morehead for “the names and addresses of all physicians who have examined or treated you for injuries received in the occurrence,” the examination and treatment dates, his doctors’ “findings,” their charges, and the reason for each exam. Morehead’s response listed two doctors, two radiologist groups, and three other medical entities. Battles’s interrogatory no. 35 asked Morehead to supplement his responses: “Will you supplement your answers to these interrogatories upon receipt of any information which would alter, amend or supplement your previous answers?” Morehead responded: “Plaintiff will comply with Arkansas Rules of Civil Procedure.” Morehead did not verify his answers as required by Rule of Civil Procedure 33(b)(1) & (2). His lawyer signed and served them approximately two years before trial. Battles also served a request for production of documents, asking Morehead to produce copies of all relevant narrative medical reports. In response, Morehead attached an authorization for Battles to gather the medical records.
Battles conceded liability. He neither attended trial nor testified. The only issues tried were the nature and extent of Morehead’s injuries and property damage. Several of Morehead’s doctors, including Dr. Russell Burton (his primary physician) testified by video deposition. Battles hired a medical expert, who reviewed Morehead’s medical records and testified about his injuries. Morehead testified in detail about his injuries and medical treatment. One of the injury issues was whether Morehead had a torn rotator cuff. An MRI indicated one, and as his lawyer put it in his opening statement, early in Morehead’s medical treatment “everybody thought . . . he’s got a rotator cuff tear.” An arthro-gram and surgery revealed no such tear. In his opening, More-head’s counsel explained these facts and said that his client did not have a rotator-cuff tear.
At the end of his redirect testimony, Morehead asked his lawyer: “Can I add one thing?” Counsel agreed and Morehead said: “Dr. Burton sent me to Dr. Thomas for a test on some nerves here not long ago. Dr. Thomas did tests on me •— this was two months ago or three months ago. He told me, said, ‘You have a torn rotator cuff. You need to go back and get an MRI.’ ”
Battles’s counsel sought a bench conference and moved for a mistrial based on the undisclosed medical treatment. The circuit court denied the motion, saying that the nondisclosure went to Morehead’s credibility. Under further questioning from his lawyer, Morehead testified he was still having problems with his shoulder. When specifically asked if he was claiming that he had a rotator-cuff tear from this accident, Morehead responded, “No. I’m just telling you that’s what I was told and . . . that’s just what I was told.” At a second bench conference, the court suggested that Battles’s lawyer ask Morehead why he did not provide her all his medical bills. She did, and Morehead said that she had not asked for them and he had never met her until that morning. He also said that he did not pursue Dr. Thomas’s statement about the torn rotator cuffbecause he would “never, ever again have a shoulder operated on.” Then Morehead said twice that Battles’s counsel “probably” had the bill from Dr. Thomas and ended by saying: “You have the bill, I’ll bet you.” At the end of another bench conference, the circuit court again denied relief. The court concluded that “the failure to provide complete discovery is — it goes to the credibility of the party . . . that’s failed to do that.”
The jury returned a general verdict for Morehead and awarded him $8,000.00 for property damage and $200,000.00 for bodily injuries. His medical bills were approximately $25,000.00. Battles filed timely motions under Rule 59 and Rule 60. He supported his Rule 60 motion with Dr. Thomas’s belatedly obtained records. Morehead had seen this doctor approximately six months before trial on referral from Dr. Burton. The records did not contain a diagnosis of a torn rotator cuff. The circuit court denied any post-trial relief.
II.
This record demonstrates a constructive fraud. Downum, 101 Ark. App. at 247-49, 274 S.W.3d at 352-53 (elements). The undisputed facts show that Morehead’s unsupplemented interrogatory response misrepresented his treatment by omitting any reference to Dr. Thomas. Battles justifiably relied on the response in preparing his defense on the core issue in the case, Morehead’s injuries. And he was prejudiced by not having Dr. Thomas’s records in hand during Morehead’s volunteered testimony and by not having them before trial to craft a defense based on all the evidence. Ibid.
The fraud was constructive, rather than actual, because the record does not show an intent to deceive. Morehead’s lawyer was as surprised by the revelation of Dr. Thomas’s treatment and purported opinion as everyone else. “[Constructive fraud, sometimes called fraud in the law, may exist in the complete absence of dishonesty of purpose, evil intent, or moral guilt.” Downum, 101 Ark. App. at 248, 274 S.W.3d at 352; see also Roach v. Concord Boat Corp., 317 Ark. 474, 476, 880 S.W.2d 305, 306-07 (1994). “[Constructive fraud is based on a breach of a legal or equitable duty that the law declares to be fraudulent because of its tendency to deceive others.” Downum, 101 Ark. App. at 248, 274 S.W.3d at 352.
Rule of Civil Procedure 26(e)(1) imposed a legal duty on Morehead to supplement his discovery responses if any of them got stale. His response to interrogatory no. 16 did. When Morehead’s lawyer made the response about two years before trial, and listed the doctors, the answer was no doubt complete. But the Rule requires a party to do more. “A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Ark. R. Civ. P. 26(e). Morehead’s response was incomplete. Dr. Thomas’s treatment of Morehead was not made known to Battles in any way. Morehead recognized his duty when he responded to Battles’s interrogatory about supplementary answers. Morehead, however, did not follow through on complying with our Rules about supplementary discovery responses.
Dickson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005) is on point and controlling. In that divorce case, the husband omitted some Exxon stock from his list of assets in his discovery responses and in his testimony. The omission was discovered several years later. On the wife’s Rule 60 motion to modify the decree, the circuit court concluded that the husband’s omission — even if unintentional — worked a constructive fraud, which justified modifying the decree. 361 Ark. at 250, 206 S.W.3d at 232-33. The supreme court affirmed in no uncertain terms, relying in large part on the husband’s incomplete discovery responses. 361 Ark. at 247-48, 250-51, 206 S.W.3d at 231-34. Just as Dickson’s wife was entitled to know about all his assets in response to her discovery request, Battles was entitled to know about all Morehead’s treating doctors in response to his discovery request.
Morehead acknowledges his Rule 26 duty to supplement, but argues that Battles likewise had a duty to inquire diligently. If Battles had asked Dr. Burton — the primary treating doctor — about other doctors during his deposition, Morehead says, then everyone would have learned about Dr. Thomas before trial. Morehead is correct, but this is only half the point. Battles propounded timely and targeted interrogatories and requests for production. Those discovery requests satisfied Battles’s duty of diligence in these circumstances. “[A person] may not omit inquiry and examination” and then complain that the resulting silence left him uninformed. Kinkead v. Union National Bank, 51 Ark. App. 4, 15, 907 S.W.2d 154, 160 (1995) (quotation omitted). Battles did not omit inquiry. His discovery triggered Morehead’s duty to respond and seasonably supplement pursuant to Rule 26(e)(1).
Morehead presses hard that, for several reasons, his failure to supplement did not prejudice Battles. He points out that Dr. Thomas did not diagnose a rotator-cuff tear, and thus his proof on this issue would have been cumulative to the other doctors’ final opinions. Morehead says that he did not seek any damages for this kind of injury. Finally, Morehead pointed out at oral argument that Dr. Thomas’s evaluation related mostly to carpel tunnel syndrome, a condition unrelated to the accident and irrelevant to the issues at trial.
We are persuaded, however, that prejudice occurred. First, the rotator-cuff issue was muddy because of the doctors’ unanimous preliminary impression based on the MRI, Morehead’s continued shoulder pain, and Morehead’s testimony. When asked if he was claiming that this accident caused the tear, Morehead said “[n]o.” But then he immediately told the jury that Dr. Thomas had told him his rotator cuff was indeed torn. He said that he still had problems with his shoulder. Later, Morehead repeated that “in [Dr. Thomas’s] opinion” he had a torn rotator cuff. Morehead’s incomplete discovery response took an arrow from Battles’s quiver: he did not have the tell-tale records to use in responding to Morehead’s testimony about Dr. Thomas’s purported diagnosis. Second, Morehead also insisted that Battles actually had Dr. Thomas’s records — “[y]ou have the bill, I’ll bet you” — when in fact Morehead had not disclosed this doctor’s treatment. This insistence turned Morehead’s discovery omission into an arrow for him, an arrow he used against Battles.
Third, Dr. Thomas’s records were not entirely cumulative. They were the only way of responding to Morehead’s testimony about Dr. Thomas’s opinion. They would have helped clear up the rotator-cuff issue. And they addressed another injury issue. Dr. Burton had given varying opinions about whether Morehead suffered from cervical radiculopathy — disease of the cervical nerve roots, often manifesting as neck or shoulder pain. Dor-land’s Illustrated Medical Dictionary 1562 (30th Ed. 2003). In 2003 and in 2006 Dr. Burton diagnosed this condition, while in 2007 he said it did not exist. As best we can tell, Dr. Thomas did the 2007 testing that confirmed no cervical radiculopathy. Battles was entitled to have the benefit, before trial, of Dr. Thomas’s testing and opinions on that injury issue too.
Finally, apart from these particulars, there is a general and more important point. What to make of Dr. Thomas’s records in the case as a whole was Battles’s choice, not Morehead’s. But Battles never got to make that choice. This is precisely the bind that Rule 26(e)(1) aims to prevent. This error went deeper than Morehead’s credibility. His failure to supplement deprived Battles of the opportunity to formulate his side of the case on the key issue — Morehead’s injuries — based on all the medical evidence before trial. This lost opportunity is also why Morehead is mistaken in his argument that a limiting instruction could have cured any prejudice here. Morehead’s failure to supplement his list of doctors has legal consequences: this constructive fraud entitles Battles to a new trial.
III.
There are some loose ends. Battles also argues that the verdict was excessive. We need not and do not reach this issue. Battles makes two other arguments for reversal. We address and reject them because these issues may arise on retrial.
First, remarks about Battles’s race. Recall that Battles did not appear for trial. Morehead’s opening statement described Battles as “a young black man who was driving a large black Cadillac” and later referred to him as “the black fellow driving this car.” During his examination of a police officer, Morehead again referred to Battles as the black man driving the Cadillac. Battles did not object to any of these statements. His silence waived the issue. Our supreme court has held that comments more derogatory than these can be cured by a timely objection and a cautionary instruction. E.g., Day v. Ferguson & Wheeler, 74 Ark. 298, 299-301, 85 S.W. 771, 772-73 (1905). Our review of the record also convinces us that the remarks here were inadvertent. We nonetheless emphasize for the bar that racial stereotypes have no place in our courts of equal justice under law.
Second, disputed references to insurance. The jury was not told that Nationwide was a party or that Morehead’s complaint sought underinsured coverage. But Morehead made several references in opening and closing to the fact that Battles’s medical expert often testified for, and was paid by, insurance companies. Without objection, Morehead even introduced a copy of a letter that the doctor had sent to four hundred insurance companies soliciting business as an expert. References to insurance coverage during trial can be unfairly prejudicial. E.g., Hacker v. Hall, 296 Ark. 571, 575-77, 759 S.W.2d 32, 34-35 (1988). Morehead’s disputed references in this case, however, were to the doctor’s clients, not coverage. These references were close to the line but not over it. They were fair comments on the proof. No reversible error occurred.
Reversed and remanded.
Pittman, C.J., and Heffley, J., agree.
The Rule as quoted reflects an amendment effective in May 2006. The current version of Rule 26(e) was in effect in 2007 when Morehead was treated by Dr. Thomas and at the trial. The 2006 amendment clarified and strengthened litigants’ duty to supplement discovery responses. Addition to Reporter’s Notes, 2006 Amendment. Though it was worded differendy, the Rule in effect in 2005 when Morehead answered this discovery imposed the same duty to supplement. Morehead argues that the Rule requires only truthfulness of the responses when given and prohibits a knowing concealment of information. Those standards, however, were changed by the 1999 amendment to Rule 26(e). Addition to Reporter’s Notes, 1999 Amendment. | [
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Karen R. Baker, Judge.
Appellant, Sam N. Johns, appeals
from an order of the Mississippi County Circuit Court finding that he willfully and contemptuously failed to pay the child-support arrearage and a second order sentencing him to 180 days in the Mississippi County Jail. Mr. Johns has two arguments on appeal. First, Mr. Johns argues that the trial court erred in finding him in contempt for failing to pay child support when the action was barred by the statute of limitations because the youngest child was more than twenty-three years of age when the motion for contempt was filed. Second, Mr. Johns argues that the trial court erred in finding him in contempt for not making payments on a child-support arrearage when the order from which Ms. Johns sought contempt did not direct or require him to pay a certain amount. We disagree with Mr. Johns’s arguments and affirm.
The parties were divorced on July 24, 1981. Mr. Johns was ordered at that time to pay child support. As of June 29, 1982 — less than one year after the child-support order was entered — Mr. Johns was in arrears on his child support. In November 1986, another order was entered granting judgment against Mr. Johns in the sum of $14,340 plus interest at the rate of ten percent per annum. On July 6, 1995, an order was entered directing Mr. Johns to pay $200 per month in child support and an additional $100 per month toward his arrearage. On May 6, 1999, an order was entered determining Mr. Johns’s arrearage, as of March 4, 1999, to be $40,337.81. This order also denied Mr. Johns’s statute-of-limitations defense and denied Mr. Johns’s request for a reduction in the monthly amount of $300.
On June 7, 1999, the trial court entered an order acknowledging the court’s previous order of May 6,1999, where Mr. Johns was found to be in contempt and was given until May 28, 1999 to pay $5,000 or be incarcerated for 180 days; denying Mr. Johns’s motion for reconsideration; finding that Mr. Johns remained in willful violation of a prior court order despite his ability to pay; and granting Mr. Johns’s motion to stay only upon the condition that he post a cash bond in the amount of $5,000.
On April 7, 2006, Ms. Johns filed a motion for contempt. In that motion, Ms. Johns alleged that Mr. Johns ceased making payments on the child-support arrearage in March 2005 and that he should be held in contempt for his willful refusal to comply with court orders regarding payment on the arrearage. Mr. Johns filed a response to Ms. Johns’s motion for contempt on June 15, 2006, alleging specifically that the action to collect the prior judgment was barred by the statute of limitations.
On June 4, 2007, the court entered an order finding that Mr. Johns willfully and contemptuously failed to pay the child-support arrearage; that Mr. Johns’s explanation for refuting the amount of child support was not credible; and that sentencing was delayed in order to allow Mr. Johns to purge himself of contempt by payment of$15,000 by June 8, 2007, and the payments of the balance of the arrearage in installments of not less than $500 per month until the arrearage, principal and interest was paid in full. Mr. Johns filed a notice of appeal from the June 4 order.
On July 13, 2007, the trial court entered an order finding that Mr. Johns did not appear for sentencing; finding the testimony to be that Mr. Johns had not purged himself of the arrearage and debt; and sentencing Mr. Johns to 180 days in the Mississippi County Jail. Mr. Johns also filed a notice of appeal from the July 13 order.
The May 6, 1999 judgment provided that Mr. Johns owed an arrearage of $40,337.81 and directed him to continue to pay as previously ordered by the court the sum of $300 each month to cure the arrearage. Mr. Johns argues that the contempt action filed April 7, 2006, seeking enforcement of the 1999 judgment, was barred by the statute of limitations, because the parties’ youngest child was older than twenty-three years of age when the 2006 contempt action was filed.
The statute relied upon by Mr. Johns states in pertinent part that “[i]n any action involving the support of any minor child or children, the moving party shall be entitled to recover the full amount of accrued child support arrearages from the date of the initial support order until the filing of the action.” Ark. Code Ann. § 9-14-236(b) (Repl. 2008). The “initial support order” is “the earliest order, judgment, or decree entered in the case by the court or by administrative process that contains a provision for the payment of money for the support and care of any child or children.” Ark. Code Ann. § 9-14-236(a)(3). The statute defines “accrued child support arrearages” as “a delinquency owed under a court order or an order of an administrative process established under state law for support of any child or children that is past due and owing.” Ark. Code Ann. § 9-14-236(a)(l). An “action” is defined as “any complaint, petition, motion, or other pleading seeking recovery of accrued child-support arrearages.” Ark. Code Ann. § 9-14-236(a) (2). The action for collection of child-support arrearages, however, may only be brought “at any time up to and including five (5) years beyond the date the child for whose benefit the initial child support order was entered reaches eighteen (18) years of age.” Ark. Code Ann. § 9-14-236(c).
Mr. Johns’s reliance on this statute of limitations, however, is misplaced. Here, Ms. Johns was not bringing an action to recover accrued child-support arrearages from an initial support order. Rather, she was seeking enforcement of a judgment, and therefore, a separate statutory provision applied. See Ark. Code Ann. § 9-14-235 (Repl. 2008). That provision provides that [i]f a child support arrearage or judgment exists at the time when all children entitled to support reach majority . . . the obligor shall continue to pay an amount equal to the court-ordered child support . . . until such time as the child support arrearage or judgment has been satisfied.” Ark. Code Ann. § 9-14-235(a) (emphasis added). A “judgment” is defined as “unpaid child support and medical bills, interest, attorney’s fees, or costs associated with a child support case when such has been reduced to judgment by the court or become a judgment by operation of law.” Ark. Code Ann. § 9-14-235(e). Thus, it is this section governing the collection of judgments that is applicable, and not the section relied upon by Mr. Johns, which governs actions for child-support arrearages from an initial support order. Accordingly, Ms. Johns may seek enforcement of the judgment without regard to the statute of limitations relied upon by Mr. Johns. Further, our interpretation is born out by Malone v. Malone, 338 Ark. 20, 991 S.W.2d 546 (1999). There, the Arkansas Supreme Court held that Ark. Code Ann. § 9-14-235 “imposes no limitations on the enforcement” of child-support judgments. Id. at 26, 991 S.W.2d at 550.
Moreover, to interpret Ark. Code Ann. § 9-14-236 to encompass enforcement of judgments would lead to absurd results. If we were to interpret the statute so as to preclude enforcement of judgments after the child has turned twenty-three years old, then certain persons may be inclined to not satisfy the judgment and wait until the child’s twenty-third birthday to avoid paying the judgment. Moreover, as previously discussed, this would conflict with Ark. Code Ann. § 9-14-235. We do not interpret statutes so as to reach an absurd conclusion that is contrary to legislative intent. See, e.g., Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003).
Mr. Johns also asserts that the trial court erred in finding him in contempt for not making payments on a child-support arrearage when the order from which Ms. Johns sought contempt did not direct or require him to pay a certain amount. The disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt. Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991). The general rule is that before a person may be held in contempt for violating a court order, that order must be in definite terms as to the duties thereby imposed and the command must be expressed rather than implied. Id. We will not reverse a trial court’s finding of civil contempt unless that finding is against the preponderance of the evidence. Rogers v. Rogers, 80 Ark. App. 430, 97 S.W.3d 429 (2003).
There is nothing indefinite about Mr. Johns’s monthly child-support obligation. As of May 6, 1999, there was an outstanding arrearage of child support in the amount of $40,337.81 and the court had previously issued an order directing Mr. Johns to pay the sum of $300 per month, thereby denying his request that the $300 per month payment be reduced. In a June 4, 2007 order, the court found that Mr. Johns had ceased his monthly payments in March 2005, although he acknowledged to the court that he was aware of the May 6, 1999 order. The court found that he willfully and contemptuously failed to pay the child-support arrearage, which as of the June 4 order totaled $46,714.52, with Mr. Johns having paid only $24,300 on the arrearage. Mr. Johns offered no explanation except that he thought he did not owe anything. This is not a case where Mr. Johns misunderstood his obligation due to an indefinite order; it is simply a case of his failure to fulfill his obligation to cure the arrearage on past-due child support. The trial court provided Mr. Johns with repeated opportunities to purge himself of the contempt; however, Mr. Johns did not take advantage of the court’s offering. Therefore, the trial court’s determination that Mr. Johns was in contempt was not against the preponderance of the evidence.
Affirmed.
Hart and Heffley, JJ., agree. | [
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Wendell L. Griffen, Judge.
Sheila Blair appeals from her conviction for driving while intoxicated (DWI). She argues that her conviction should be reversed because the State failed to prove that she was driving a vehicle or that she was driving while intoxicated. Because an eyewitness identified appellant as the driver and sufficient circumstantial evidence proved that she was intoxicated, we affirm her conviction.
Background Facts
Appellant was arrested for DWI after police investigated a report made by a citizen, George Brooks. Brooks testified that he observed a silver compact car stopped under a red light at an intersection. Despite the fact that there was no place to turn left, the car’s left-signal light was blinking. Brooks said that other drivers were forced to go around the car, which remained stationary through a light change.
Concerned, Brooks followed the car when it finally moved forward. He saw the car weave over the center line, causing oncoming traffic to pull over to avoid being hit. When the car pulled into a driveway, Brooks also pulled aside. When the driver began to attempt to re-enter the roadway, Brooks exited his car, put his hands on the hood of the other car, and told the driver to stop.
Brooks went to the driver’s side of the vehicle and spoke to the driver, who had lowered the window. He identified appellant as the driver, and testified that appellant was the only person in the car. According to Brooks, appellant “smelled like a brewery.” He told appellant that she could either permit him to call his wife to drive appellant home or he would report appellant to the police. Appellant replied, “Call ’em,” and drove from the driveway, slinging gravel as she went. Brooks made a written note of her license plate number and then contacted the police.
Benton Police Officers Jeffrey Parsons and Eric Porter responded to the call. Parsons testified that the call concerned a white, intoxicated female driving erratically in a silver Honda. Approximately six minutes later, the officers arrived at the address to which the Honda’s license plate was registered. Appellant’s car was parked in the space between her neighbor’s driveway and her own; Porter testified that he saw the brake light flash as they approached appellant’s vehicle.
Appellant exited the car from the driver’s seat, with the keys in her hand. By the time the officers approached her, she was on her front porch. She carried some brown paper bags, one of which contained an empty beer can and several unopened beer cans. Parsons said that appellant’s eyes were watery and bloodshot and that he could smell intoxicants on her breath; Porter similarly described her eyes as “bloodshot and glassy.”
Parsons asked if appellant had been drinking. She admitted that she had, but she said that her son drove her to her house and then left. She explained that her son had taken her to Wal-Mart, but she had no Wal-Mart bags. Parsons said that appellant’s speech was slurred. After Parsons spotted some prescription bottles in plain view in one of her bags, appellant told him that she took Xanax three times per day.
Parsons administered the horizontal-gaze nystagmus test (HGN test), which indicated that appellant was intoxicated. Parsons explained that three or more “clues” on the HGN test constitutes a 71% likelihood of impairment. He further explained that appellant showed all six clues. Next, Parsons administered a one-leg stand test, which requires a person to stand on one leg and count aloud while looking at her feet. During this test, appellant lowered her foot down three times and once used her arms to balance herself. She agreed to blow into a portable breath tester, but Parsons testified that she purposely covered the mouthpiece with her tongue to cause a lower reading.
Appellant was arrested and placed in the back of the police car. At that point, her minor son, Colton Thomas, arrived. Appellant pleaded with Colton to tell Parsons that he had driven her home. Parsons said that Colton refused, saying, “I’m sorry, Mom, I’m not going to do that.” Appellant became upset and yelled at her son.
When they arrived at the police station, appellant made what Parsons called an “exaggerated” sucking noise with her mouth and told the officer that she had a mint in her mouth. When he instructed her to spit it out, she attempted to spit behind a pillar of the building. He then instructed her to spit it out in his view. When she spat, the officer saw no mint on the ground; he checked her mouth but found nothing. Even so, Parsons waited twenty minutes before administering the blood-alcohol test.
Appellant blew into the machine as instructed, but as the display approached the .08 level, she stopped blowing. After appellant did that several times, Parsons was required to begin the test again. On the second test, the officer finally obtained a reading of .075. By this time, a little more than one hour had passed from when the officers first encountered appellant.
Carrie Nelson, who works in the Saline County Sheriffs Department, collected a urine sample from appellant. She described appellant as “real slow, slow speech, slow movements.” Allison Beekman, a forensic toxicologist with the Arkansas State Crime Laboratory, testified that appellant’s urine sample revealed the presence of Xanax. Beekman said that when alcohol is consumed with Xanax, it increases the depressive effects of alcohol.
Colton testified on his mother’s behalf. Colton, who was seventeen, claimed that he was the person driving appellant’s car, and that he picked up appellant at work. Appellant worked in the hair salon located inside of Wal-Mart. Colton said that she had groceries with her, and that he drove her to the liquor store. He claimed that he “missed the red light” because he was “messing with the radio.” He said that he swerved because he and his mom were arguing over the fact that he was “messing with the radio.”
Colton said that a man followed them to appellant’s boyfriend’s house, and that appellant got out of the car and spoke to the man. Colton said that he took appellant home, where his girlfriend was waiting, then unloaded the groceries, leaving appellant’s car keys on the table. He and his girlfriend thereafter left in his work truck to get gas, and returned to find appellant in the back of the police car.
When questioned about whether he refused to tell the officers at the scene that he had been driving appellant’s car, Colton admitted that appellant told him to tell the officers that he had been driving. He agreed that appellant was “pretty upset.” But, in contrast to Parsons’s testimony, Colton claimed that he told Parsons, “I’m not saying I’m driving her right now and I’m not saying I’m not ... I said I’d tell them later.”
At the close of the State’s case-in-chief, appellant moved for a directed verdict, arguing that “the State has failed to meet its burden of showing that the defendant has been driving or that she has been driving while she was intoxicated.” The trial court denied the motion, and further denied appellant’s renewal on the same grounds. The jury found appellant guilty of DWI and sentenced her to serve ten years’ imprisonment.
Discussion
Appellant now argues that the circuit court erred in denying her motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. See Thomas v. State, 92 Ark. App. 425, 214 S.W.3d 863 (2005). On appeal from the denial of a motion for a directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is that evidence that is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Circumstantial evidence may constitute substantial evidence, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id. We consider only the evidence supporting the guilty verdict and view the evidence in the light most favorable to the State. Id. Determinations of credibility are left to the trier-of-fact. Id.
Appellant was convicted of driving while intoxicated, in violation of Ark. Code Ann. § 5-65-103 (Repl. 2005), which provides:
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time the alcohol concentration in the person’s breath or blood was eight-hundredths (0.08) or more based upon the definition of breath, blood, and urine concentration in § 5-65-204.
Appellant first argues that the State failed to present substantial evidence that she was the driver because the police did not see her driving, because she did not confess to driving, and because there was no evidence of her intent to drive after the moment of arrest. See Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985) (citing the foregoing as ways in which the State may prove the identity of the driver). This argument fails because the State is not required to prove that a law enforcement officer actually witnessed the intoxicated person driving or exercising control over the vehicle; rather, the State may make that showing by circumstantial evidence. See Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994). Similarly, the State is not required to prove that the defendant confessed or prove that she possessed an intent to drive drunk.
Here, there was both direct eyewitness testimony and circumstantial evidence proving that appellant was the driver. Brooks identified appellant as the driver who was behind the wheel of the car that he had observed stopped at the red light and later observed swerving. After appellant stopped, he spoke with her and then saw her drive away after she challenged him to contact the police. In addition, Officer Porter saw the brake light flash on appellant’s car before appellant exited the car from the driver’s side with the keys in her hand. This constituted substantial evidence to establish that appellant was the driver. See, e.g., Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998) (holding that the defendant either operated or was in actual physical control of the vehicle where he was discovered by police walking away from a one-vehicle accident involving his truck, where he had the truck keys in his pocket, and where there was testimony that he had been driving the truck shortly before his encounter with police).
Appellant’s second argument is that the State failed to prove that she was intoxicated because her blood-alcohol content was .07, below the legal limit. In response to Parsons’s testimony that she attempted to obstruct the blood-alcohol testing process, she argues that she was not cited for refusal to submit to any of the tests.
This argument, too, fails. Proof of blood-alcohol content, although admissible as evidence tending to prove intoxication, is not necessary to sustain a DWI conviction. See Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985). A blood-alcohol level of more than .04 but less than .08 does not give rise to a presumption that the defendant was intoxicated, but may be considered with other competent evidence in determining whether she was intoxicated. Ark. Code Ann. § 5-65-206(a)(2) (Supp. 2007).
A person is “intoxicated” if she is influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination of alcohol, a controlled substance, or an intoxicant, to such a degree that her reactions, motor skills, and judgment are substantially altered and she, therefore, constitutes a clear and substantial danger of physical injury or death to herself and other motorists or pedestrians. Ark. Code Ann. § 5-65-102(2) (Repl. 2005). The observations of police officers with regard to the smell of alcohol and actions consistent with intoxication can constitute competent evidence to support a DWI charge. See Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999).
In sum, based on the eyewitness testimony identifying appellant as the driver, appellant’s admission that she had been drinking, her blood-alcohol reading, the failure of her field tests, the manner in which she drove the vehicle, and the witnesses’ observations regarding her inebriated condition, the jury could have reasonably concluded that she was driving while intoxicated. See, e.g., State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996) (affirming a DWI conviction where the defendant’s blood-alcohol content was .06 percent, where police officers testified that there was no doubt in their minds that defendant was intoxicated, where they observed defendant’s slurred speech and red and glassy eyes, and one officer smelled the odor of intoxicant on the defendant, who admitted to him that he had “had a few”). Here, although appellant’s son testified that he was the driver, his testimony could have readily been discounted by the jury. As appellant is his mother, he is an interested witness, and notably, his testimony contradicted the statement he made to the officers, as well as Brooks’s testimony.
Finally, the fact that appellant was not cited for refusal to submit to the test is of no moment because she did not refuse to submit to testing. What appellant did was to deliberately delay Parsons in obtaining a successful test result by blatantly interfering with the testing. By the time a successful result was obtained, more than one hour had passed, and her blood-alcohol content had dropped to only .07. If the refusal to be tested is admissible evidence on the issue of intoxication and may indicate the defendant’s fear of the results of the test and the consciousness of guilt, see Johnson v. State, supra, then a defendant’s attempts to prevent accurate testing surely may be considered as similar proof of guilt.
Affirmed.
Bird and Glover, JJ., agree.
Appellant has either been convicted of or has pleaded guilty to ten DWIs in twelve years, seven of which occurred over the past five years.
We do not read the officer’s testimony to suggest that a suspect may defeat a breathalyzer test by simply holding her breath when the reading approaches the .08 level. Rather, the officer’s testimony established that appellant repeatedly stopped her air flow in an apparent attempt to prevent the breathalyzer from registering a sufficient volume of breath to test her blood-alcohol content. We emphasize that our decision does not turn on whether appellant’s efforts to interfere with testing were or could have been successful. Even futile efforts to interfere with blood-alcohol testing may be considered as proof of guilt. | [
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Andree Layton Roaf, Judge.
Vick L. Pannell appeals an order from Garland County Chancery Court modifying the amount of child support that he was obligated to pay to his ex-wife, Linda K. Pannell, for his son Jody. On appeal, Vick argues that the chancellor erred in: 1) not dismissing the modification petition because Linda failed to submit an affidavit of financial means; 2) using a means of calculating his income that was not recognized or authorized by Arkansas law; and 3) ruling in favor of an increase in support based on the evidence adduced at the hearing. We affirm.
Jody, who was born on January 22, 1980, is the Pannells’ only child. In a divorce decree entered on June 23, 1982, Linda was awarded custody of Jody, and Vick’s support obligation was set at $70 per week. The decree was modified by an order dated October 20, 1982, which raised Vick’s support obligation to $336.30 per month, beginning on October 1 of that year. Linda sought no further increases in support until 1997.
On February 10, 1997, Linda filed a petition for an increase in child support commensurate with Vick’s current earnings from River City Sales and Marketing, a subchapter S corporation that he established in 1988, and in which he is the sole shareholder. In the hearing on the petition, Vick requested of Linda the support affidavit required by child-support guidelines promulgated by the supreme court. When Linda’s trial counsel admitted that he had not prepared the affidavit, Vick objected to the introduction of any testimony regarding her income or expenses, and the trial court sustained the objection.
Vick’s income tax return for 1996 was entered into evidence without objection. Because the return was jointly filed with Vick’s current wife and because the income reflected therein was earned through Vick’s wholly-owned S corporation, the parties disagreed as to the characterization of the income for the purposes of calculating support.
Vick testified that although prior to 1997, his present wife drew no salary, she worked sixty hours per week in the corporation. Additionally, while he did not dispute that he had a good year in 1996, he testified that his year-end projections for 1997 were considerably less due to several reversals in his business. Vick valued the loss in business at $367,012. He also testified that while the company made $162,028 in 1996, his CPA only projected profits of $3,734 in 1997. Vick also claimed that of the $184,000 in pre-tax profit that his company showed in 1996, he actually kept none of it. He also claimed that he kept the full $100,000 in after-tax income in his business and essentially only realized his $25,000 per year salary, which yielded $384.70 per week in take-home pay. Vick, however, admitted that his corporation had purchased approximately $100,000 worth of registered quarter horses that he personally rode, an airplane that he piloted, and a Porsche and a succession of BMW's for his company cars.
An accountant for the firm that prepared the tax returns for Vick’s corporation, Arlene Baltz, testified that although Vick’s company made $184,000 in pre-tax profit, that total was calculated on the “accrual” basis and that the after-tax profit was tied up in inventory and accounts receivables. She admitted, however, that Vick had complete control over the amount of these earnings that would be retained by the company. She also testified that Vick claimed $42,000 in depreciation of business assets in 1996, and estimated that $51,000 would be claimed in 1997. Baltz further testified that Vick’s corporation paid $178,275 in compensation to officers, which all went to Vick as its only corporate officer. According to Baltz, based on his 1996 tax return, after subtracting taxes and social security payments from his gross income and dividing by 52, Vick had weekly compensation of $4,758.77. She stated, however, that the profit projections were very meager for 1997. Vick’s income for child-support purposes in 1997 was projected to be only $21,550.
In his order filed on December 22, 1997, the chancellor raised Vick’s support to $1,457.11, beginning with the month of February 1997, when the petition for increase was filed. The order also recited that the payments were to continue through May of 1999, the month that Jody is expected to graduate from high school. The decree incorporated by reference the chancellor’s findings announced from the bench, which included his method of calculating the amount of support. The chancellor started with Vick’s after-tax income in 1996, $247,456.32, which was derived from the total income listed on Vick’s personal income tax return, $406,150, less $158,753.68 that he paid in federal and state income taxes and FICA. Although the chancellor stated that he suspected that Vick might have manipulated the estimated earnings for 1997, he added Vick’s projected after-tax income for 1997, $21,550, to the 1996 total, and divided by two. He then took thirteen percent of that total and calculated the monthly portion to arrive at Vick’s monthly support obligation. The chancellor also specifically rejected Vick’s argument that support should not have been calculated based on the 1996 tax return, because it was a joint return, finding that if Vick’s current wife had been an employee, her income would have been reflected on a W-2 or 1099.
Vick first argues that the plain language of section IV of the supreme court’s per curiam order, In re Administrative Order No. 10: Arkansas Child Support Guidelines, 331 Ark. 581 (1997), hereinafter “support guidelines,” mandates that the Affidavit of Financial Means shall be used in all cases where a level of support is being set. Further, citing Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988), he contends that the relative income of the parties is a relevant consideration for the trial court, and he asserts that the Affidavit of Financial Means is designed to promote the consideration of all relevant factors. Accordingly, he argues that the chancellor’s failure to require the exchange of the affidavit prior to the hearing constitutes reversible error. This argument is without merit.
Section VI of the support guidelines states:
The Affidavit of Financial Means shall be used in all family support matters. The trial court shall require each party to complete and exchange the Affidavit of Financial Means prior to a hearing to establish or modify a support order.
It is true that the plain language of this section imposes a duty on the chancellor to require that the parties exchange affidavits, but this fact is not dispositive of this issue. As noted above, when Linda’s trial counsel admitted that he had not prepared an affidavit, Vick objected to the introduction of any testimony regarding her income or expenses, and the trial court sustained the objection. It is worth noting that Linda’s trial counsel offered to quickly prepare an affidavit, but Vick did not pursue the offer. Accordingly, Vick is entitled to no relief on appeal because he was the prevailing party on this issue in the trial court and because he received all the relief he requested. Berry v. St. Paul Fire & Marine Ins. Co., 328 Ark. 553, 944 S.W.2d 838 (1997).
Citing Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993), Vick next argues that it is “axiomatic” that a child-support obligation must be based on the current net income of the obligor. Vick contends that the chancellor ignored “overwhelming” evidence of the cyclical nature of his business and failed to consider the plummet in gross revenues occasioned by the loss of several major accounts. He further asserts that in this court’s de novo review it should look to the support guidelines in force at the time the order was entered, find that the proper level of support is only $338 per month, and because it only represents a $2 increase over what he was currently paying, dismiss the petition because there has been no material change in circumstances since the filing of the last support order.
In the alternative, Vick argues that if this court finds no error in the chancellor’s averaging methodology, we should find that the chancellor erred in considering undistributed income retained by his wholly owned S corporation because it gives a completely distorted view of his annual disposable income. Citing Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998), as authority, he asserts that the chancellor erred in not excluding undistributed retained earnings. Based on this approach, he contends that his annual disposable income for 1996 should have been found to be $146,486.32, and when averaged with his 1997 income of $21,550, his support obligation should be calculated based on $84,018. He contends that this court should lower his support obligation to fifteen percent of this sum, which is $1050.23. Neither argument has merit.
The amount of child support a chancery court awards lies within the court’s sound discretion, and we will not disturb the chancellor’s child-support award absent an abuse of discretion. Jones v. Jones, supra. Regarding the calculation of income of a self-employed payor, section III c. of the support guidelines state:
For self-employed payors, support shall be calculated based on last year’s federal and state income tax returns and the quarterly estimates for the current year. Also the court shall consider the amount the payor is capable of earning or a net worth approach based on property, life-style, etc.
(emphasis added). Furthermore, the support guidelines authorize the court to impute income if the payor is working below full earning capacity. Support guidelines sec. Ill d.
Regarding Vick’s argument that the chancellor erred by averaging his 1996 and 1997 incomes, we hold that this methodology does not constitute an abuse of discretion. The plain language of the guidelines requires the court to calculate support based on the previous year’s tax returns and the current year’s estimates. It is undisputed that the chancellor did exactly that. The support guidelines are, in essence, rules promulgated by the Arkansas Supreme Court, and court rules are construed using the same means, including canons of construction, that are used to interpret statutes. Anderson v. Anderson, supra. Because the support guidelines are remedial in nature, they must be broadly construed so as to effectuate the purpose sought to be accomplished by its drafters. See Files v. Arkansas State Hwy. & Transp Dep’t, 325 Ark. 291, 925 S.W.2d 404 (1996). The intent of the drafters is determined from the ordinary meaning of the language used. Leathers v. Cotton, 332 Ark. 49, 961 S.W.2d 32 (1998). Common sense tells us that if the supreme court did not want the previous years’ income tax returns to be at least part of the basis for calcu lating support obligations for self-employed payors, it would not have made consideration of them mandatory.
Furthermore, Vick’s rebanee on Jones v. Jones, supra, is misplaced. In that case, we rejected the appellant’s argument concerning entitlement to an income-tax refund for the year prior to the entry of the support order because the appellant failed to bring up a record that demonstrated trial court error. Jones did not involve construction of the support guidelines.
We similarly reject Vick’s invitation to recalculate his support obligation after excluding his corporation’s retained earnings. Our decision in Anderson v. Anderson, supra, does not control here. In Anderson, we affirmed a chancellor’s decision not to deduct from his income the income tax a support obligor paid on the retained earnings of an S corporation in which he held only a twenty-five percent interest. The chancellor had ruled that the obligor’s prorated share of the S corporations’s retained earnings would not be counted as income for the purpose of calculating the support obligation. The issue in the instant case is clearly different. Moreover, while it is true that in Anderson v. Anderson, supra, we affirmed a chancellor’s determination of a support obligation that was calculated after he excluded an S corporation’s retained earnings, the chancellor in that case nonetheless found that retained earnings constituted income for child-support purposes, but also found that the payor “rebutted the presumption that the amount reflected by the child-support chart after including income from retained earnings is the just amount of child support to order in this particular case.” In the instant case, the chancellor also found that the retained earnings were income, but found no reason to deviate from the support guidelines. Furthermore, unlike the minority shareholder obligor in Anderson, Vick is the sole owner of his S corporation and, as such, has complete control over the retained corporate earnings.
Finally, Vick argues that merely presenting evidence of the specified change in the obligor’s income is insufficient to establish a material change in circumstances warranting an increase in child support. He contends that there was no substantial evidence apart from financial documents and evidence of an affluent lifestyle to warrant an adjustment of his support obligation. He again points to Linda’s failure to submit a support affidavit as a reason for her failure to prove such an entitlement. Furthermore, he asserts that Linda wholly failed to present any proof as to his income at the time the current support order was entered in 1982, and, citing Ritchie v. Frazier, 57 Ark. App. 92, 940 S.W.2d 892 (1997), he contends that this failure of proof should have been fatal to Linda’s petition. We disagree.
Vick’s reliance on Richie v. Frazier, supra, is misplaced. In Richie, the appellee moved to dismiss the appellant’s petition to increase child support, alleging a failure to prove what appellee’s income was at the time the existing support order was entered. Id. In the instant case, Vick made no such motion. Consequently, we hold that he is raising this argument for the first time on appeal and consistent with our well-settled law, we decline to consider it. Irvin v. Irvin, 47 Ark. App. 48, 883 S.W.2d 862 (1994). Moreover, Ark. Code Ann. § 9-14-107(c) (Repl. 1998) provides that “[a]n inconsistency between the existent child support award and the amount of child support that results from the application of the family support chart shall constitute a material change of circumstances sufficient to petition the court for review and adjustment of the child support obligated amount according to the family support chart.”
Affirmed.
Jennings and Bird, JJ., agree.
We note that the version of the support guidelines in effect at the time of the hearing mandated that fifteen percent be used in this calculation. In re Administrative Order No. 10: Arkansas Child Support Guidelines, 331 Ark. 581 (1998). However, Linda did not object to the use of thirteen percent at the hearing, and she has not put this issue before us in a cross appeal. | [
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John B. Robbins, Chief Judge.
Appellant B.W. Dalton suffered an injury to his lower back while working for appellee Allen Engineering on March 26, 1987. Allen Engineering accepted the claim as compensable and paid medical benefits, which included compensation for back surgery. Several rounds of litigation followed, and the appellee was ultimately ordered to compensate Mr. Dalton for a 15% permanent anatomical impairment and 25% wage-loss disability. Since the injury, Mr. Dalton has continued to take prescription medication for pain. The controversy in this appeal pertains to approximately $3100 that Mr. Dalton spent on these prescription drugs between March 8, 1996, and April 25, 1997. Mr. Dalton sought compensation for these expenses after the appellee refused to reimburse him. After a hearing on the issue, the Commission refused to award any compensation, finding that continued drug treatment during the time period at issue was no longer reasonable or necessary treatment for the compensable injury. Mr. Dalton now appeals, arguing that the Commission’s denial of additional medical benefits was not supported by substantial evidence.
When the Commission denies a claim because of the claimant’s failure to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). A decision by the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).
Mr. Dalton was the only witness at the hearing before the Commission. He testified that, in 1987, he was working for the appellee when a piece of equipment fell on him and injured his spine. At the time of the accident he was on an assignment in Georgia, and he subsequently received medical treatment in that state. He underwent surgery, began seeing Dr. Austin Grimes in 1990, and continued under his orthopedic care until 1994, when he was referred to a general practitioner, Dr. H.R. Duckworth. Dr. Duckworth continued to treat Mr. Dalton through the date of the hearing.
While under the care of Dr. Grimes, Mr. Dalton underwent conservative measures including therapy and medication. The medication prescribed by Dr. Grimes included Voltaren, Parafon, Zantac, and Darvocet. In late 1993, Dr. Grimes told Mr. Dalton that he had nothing else to offer him and referred him to Dr. Duckworth for further prescriptions. Since that time, Dr. Duck-worth has continued to prescribe the same medication that Mr. Dalton was receiving under the care of Dr. Grimes.
Mr. Dalton testified that he has pain in his lower back that goes down into his hip, and muscle spasms that shoot into his left leg and foot. He indicated that any kind of lifting or pushing exacerbates the pain. As for the drugs that he takes, Mr. Dalton testified, “I have to take medication and probably will need it for the rest of my life.”
Dr. Grimes gave a deposition in which he discussed the extent to which Mr. Dalton should have continued taking the medication. He testified:
In November of 1994 I said that he should not be taking all that Darvocet. I have not changed my opinion other than to qualify it by saying that I don’t know what the situation is currently so I don’t know whether he needs it or not. Darvocet is a narcotic pain medication. It has addiction potential. Most physicians try to get the patient away from that type of medication.
All four of these drugs are consistent with a back pain complaint, and they are frequendy prescribed. Darvocet is not a major narcotic, but at the same time, it is an addicting drug. The other medications are not considered addictive drugs. Darvocet is not a medication that we feel any hesitancy in prescribing short term. But if the medication is continuing to be prescribed it attacks the symptoms and not the problem.
Despite Dr. Grimes’s reservations regarding the medication that he expressed in 1994, he also stated in his deposition:
I would defer to Dr. Duckworth with respect to Mr. Dalton’s present prescription medications and treatment. The doctor seeing the patient must make the decision as to when to change medications.
There are all sorts of methods of dealing with problems of continuing taking medications when it is probably not doing as much good as it has in the past. It becomes more of a crutch than an actual benefit. But neither this gentleman nor anyone else, should be cut off cold turkey from their medications.
Shortly before the hearing, Dr. Duckworth referred Mr. Dalton to a pain center program, and Dr. Grimes had this to say about it:
I responded in November of 1994 that I did not believe that taking this much medication was necessary seven years after the incident. Mr. Dalton has been referred to the pain center. I think the fact that he has been referred to the pain center is justification enough to whatever physician had written the orders for these drugs. The problem is that pain is subjective. The fact that he is being referred to a pain management center I think is reason enough to fill these medications at this one particular time. Normally, with pain center referrals, medication is stopped. After he is seen in the pain center program, I think the medications should stop. Only one person should write prescriptions for the patient and whatever pain center management should be instituted from there. Additional medication prescriptions are not written in order to avoid interference with the treatment program.
I would agree with the idea that he is requiring pain medication and should be seen in a pain management clinic.
In a letter written on December 13, 1994, Dr. Duckworth stated:
The last time that I saw the patient was September 2, 1994 at which time he was still having low back pain which appeared to be lower back muscle spasm. His medications were prescribed as follows: Zantac 150 mg. b.i.d., Voltaren 75 mg. b.i.d., Darvocet N 100 q four hours PRN for pain, and Parafon Forte 500 mg. b.i.d.
I agree with Dr. Grimes that seven years after this accident that his medication intake may be excessive. Probably he will need the Zantac if he continues to take the Voltaren. Darvocet and Parafon Forte should be taken only on a PRIST basis. Also I feel that possibly a cheaper medication could be substituted for the Voltaren and the results would be equal. Certainly he doesn’t need to take 100 Darvocet N per month as was indicated in your communication.
After reviewing Dr. Grimes’s deposition in this matter, Dr. Duck-worth gave the following opinion in a letter dated April 23, 1997:
I reviewed the oral deposition as given by Dr. Austin Grimes of Little Rock. I essentially agree with the testimony of Dr. Grimes in regard to the above workman’s comp case. The last time I saw Mr. Dalton he seemed to have considerable pain either real or imagined. As you know there is no simple way of determining a patient’s level of pain. After seeing the patient I feel that his medication level is justified.
I do think that Mr. Dalton should be in a pain control clinic or center. I think that they should be allowed to prescribe the necessary treatment for Mr. Dalton.
In denying compensation for the oral medication prescribed by Dr. Duckworth between March 8, 1996, and April 25, 1997, the Commission relied on the opinions of Drs. Duckworth and Grimes. It noted that, as early as November 1994, Dr. Grimes expressed the belief that Mr. Dalton’s medication was excessive. It also referenced Dr. Duckworth’s letter of December 1994, in which he agreed that the medication may be excessive and indicated his willingness to limit the prescriptions. As for Dr. Grimes’s testimony regarding the pain center program, the Commission found that he was recommending prescription medication one time only prior to admission into the program, rather than ongoing medication. In denying additional benefits, the Commission stated, “The opinions of Dr. Grimes and Dr. Duckworth support a finding that it is excessive for the claimant to be taking this medication over eleven years after his compensable injury.”
For reversal, Mr. Dalton argues that there is no substantial evidence to support the Commission’s finding that the medications prescribed were excessive and, thus, noncompensable. He notes that both Drs. Grimes and Duckworth were authorized treating physicians, and that neither gave the opinion that he should not be taking any medication. Indeed, Mr. Dalton continued his drug treatment under the supervision of Dr. Duckworth, who continued to prescribe the medication for the alleviation of his work-related back condition. Under these circumstances, Mr. Dalton submits that the continued treatment was reasonable and necessary.
The appellant bears the burden of proof in establishing entitlement to benefits under the Workers’ Compensation Act and must sustain that burden by a preponderance of the evidence. Morrow v. Morrow, 5 Ark. App. 260, 635 S.W.2d 283 (1982). The medical benefits owed under the Workers’ Compensation Act are only those that are reasonable and necessary. Ark. Code Ann. § 11-9-508(a) (Repl. 1996). In the instant case, we find that the Commission erred in refusing to award any benefits for Mr. Dalton’s continuing pain medication.
There is a substantial basis to support the finding that not all of the claimed treatment was reasonable and necessary in light of some of the opinions expressed by Drs. Grimes and Duck-worth. However, there is no substantial basis to support the Com mission’s finding that none of the claimed treatment was compensable, because at no time did either of appellant’s physicians give an opinion that the drug treatment should have been eliminated altogether. Instead, both doctors agreed that some prescription medication was necessary, and suggested only that the dosages may have been excessive. Indeed, in denying benefits, the Commission relied on the fact that the treatment was excessive, but never found that all of the treatment was unreasonable and unnecessary.
Even back in November 1994, Dr. Grimes only thought that Mr. Dalton should not be taking all of the medication being prescribed; he did not say that he should be cut off entirely. Indeed, he stated in his deposition that “neither this gentleman nor anyone else, should be cut off cold turkey from their medications.” And, while Dr. Duckworth generally agreed in 1994 that the medications should be reduced, he continued to prescribe the full doses, which demonstrated that he thought the full medication was still necessary to treat the back pain. Then, in April 1997, Dr. Duck-worth stated, “After seeing the patient I feel that his medication level is justified.” In his deposition, Dr. Grimes stated, “I would defer to Dr. Duckworth with respect to Mr. Dalton’s present prescription medications and treatment.”
Mr. Dalton clearly established the need for further medication, and there was no evidence to the contrary. Therefore, we reverse and remand for the Commission to determine, if it can, in the performance of its fact-finding function, the extent of medication that was not excessive and the cost of such medication.
Reversed and remanded.
Pittman, Hart, and Rogers, JJ., agree.
Jennings and Bird, JJ., dissent. | [
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Josephine Linker Hart, Judge.
Appellant, Woodunique, Inc., appeals from the Arkansas Board of Review’s award of unemployment benefits to appellee Calvin L. Alley after the Board found that Alley left his last work because of a personal emergency of compelling urgency after making reasonable efforts to preserve his job rights. We reverse and remand the award because substantial evidence does not support the Board’s conclusion that Alley made reasonable efforts to preserve his job rights.
The relevant unemployment-benefit statute provides in part that “an individual shall be disqualified for benefits if he or she voluntarily and without good cause connected with the work left his or her last work.” Ark. Code Ann. § 1 l-10-513(a)(1) (Supp. 2007). The statute, however, further provides in part that “[n]o individual shall be disqualified under this section if after making reasonable efforts to preserve his or her job rights he or she left his or her last work . . . [d]ue to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification.” Id. § 11 — 10—513(b)(1).
At the Arkansas Appeal Tribunal hearing, Alley testified that during his employment with Woodunique he lived at a residence closer to his work, but he left his employment to return to his Fort Smith residence to care for his parents. He testified that it was approximately 150 miles from his place of employment to Fort Smith, so “in cases of an emergency if I had to be here really quick it just wasn’t practical.” He further testified that he did not request a medical leave of absence from his employer in order to attend to his parents, explaining that “[i]t was an emergency, I really had to get up here.” Gene Dunn, a shop foreman for Woodunique, testified that Alley called and told him that he would be “going back to Fort Smith so that he could watch after his parents” and would not be returning to work. Further, he testified that Alley did not request a medical leave of absence and just stated that he would be going back to Fort Smith.
In its summary of evidence, the Board noted that the written record contained a claimant statement. In that statement, Alley wrote that his father was eighty-eight years old, had cancer of the esophagus, and suffered from dementia and that his mother was eighty-five years old and had heart problems that on several recent occasions had caused her to fall. He also stated that his parents lived alone and needed his daily assistance at their home in Fort Smith. The Board also cited another claimant statement in the record where Alley stated that there was no emergency on the day he quit but that he had “just got to the point I had to leave the job and come and care for my parents” and he “could not afford to continue working there due to the distance.” Further, he stated that his “sister was trying to take care of them but it got to the point I had to come back, leave my job, to take care of things here.” Also, he stated that he “did not ask for a leave because it never crossed my mind.”
In its findings of fact and conclusions of law, the Board stated that “the health problems of [Alley’s] parents had become so critical that the parents were in imminent risk of severe injury or imperiling episodes of dementia” and that Alley “could not timely respond to his parents’ emergencies if he continued his employment.” The Board found that Alley quit due to an emergency of compelling urgency. Further, it found that “because the length of time that [Alley] need[ed] to be away from the area of the work was indefinite, requesting a leave of absence would have been impractical,” noting further that the “law does not require that a claimant make futile efforts to preserve his or her job rights.” It concluded that he left his last work “because of a personal emergency of compelling urgency, after making reasonable efforts to preserve his job rights.”
The Board’s findings of fact must be supported by substantial evidence upon which a particular conclusion could reasonably have been reached. Western Sizzlin of Russellville, Inc. v. Dir. of Labor, 30 Ark. App. 141, 783 S.W.2d 875 (1990). Substantial evidence does not support the Board’s decision because Alley — though he was required to do so by statute — made no effort to preserve his job rights. Recognizing that statutory requirement, we have previously held that a claimant must make reasonable efforts to preserve his or her job rights, such as by requesting a leave of absence. See id. (reversing award of benefits where claimant made no efforts to preserve job rights by requesting a leave of absence); Morse v. Daniels, 271 Ark. 402, 609 S.W.2d 80 (Ark. App. 1980) (reversing denial of benefits where claimant with sick parents preserved her job rights by requesting a leave of absence). Here, Alley did not make such a request. While the Board suggests that requesting a leave of absence would have been impractical and would have constituted a futile effort to preserve his job rights, there is simply no evidence in the record regarding what Woodunique’s response to such a request might have been. Thus, the Board’s conclusion is not supported by substantial evidence. See Gordos Arkansas, Inc. v. Stiles, 16 Ark. App. 30, 696 S.W.2d 320 (1985) (reversing award of benefits where there was no evidence to support the conclusion that any attempt to obtain a leave of absence would have proved a futile gesture). Alley’s decision to quit, however well-intentioned, was his own decision — he no longer wanted to be employed. Accordingly, we reverse and remand.
Reversed and remanded.
Gladwin, Robbins, Bird, and Hunt, JJ., agree.
Griffen, J., dissents. | [
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Margaret Meads, Judge.
Harold and Syble Barker married on November 9, 1970, and separated on March 3, 1997. A decree of divorce was entered in the Union County Chancery Court on April 9, 1998, granting appellant a divorce, dividing appellant’s pension equally between the parties pursuant to a qualified domestic relations order, awarding appellee alimony of $100 per week, and dividing the marital property unequally in favor of appellee due to appellant’s depletion of the parties’ savings account shortly before he filed for divorce. Appellant appeals the $100 per week alimony award, asserting that the chancellor abused his discretion in determining the amount of alimony to be paid. We agree, and we reverse and remand this issue to the chancellor.
An award of alimony is not mandatory, but is solely within the chancellor’s discretion, and such an award will not be reversed absent an abuse of that discretion. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). If alimony is awarded, it should be set at an amount that is reasonable under the circumstances. Mitchell v. Mitchell, 61 Ark. App. 88, 964 S.W.2d 411 (1998). The purpose of alimony is to rectify, insofar as is reasonably possible, the frequent economic imbalance in the earning power and standard of living of the divorced parties in light of the particular facts of each case. Id.; Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998).
The primary factors to be considered in awarding alimony are the need of one spouse and the other spouse’s ability to pay, Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996), but certain secondary factors may be considered in setting the amount of alimony. See, e.g., Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980); Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997). These secondary factors include (1) the financial circumstances of both parties, (2) the amount and nature of the income, both current and anticipated, of both parties, and (3) the extent and nature of the resources and assets of each of the parties. Id. Ordinarily, fault or marital misconduct is not a factor in an award of alimony. Mitchell, supra.
In the present case, the parties had been married for approximately twenty-seven years. Both parties are retired; appellant receives $675 per month from his Teamster’s pension and $872 monthly in Social Security benefits, and appellee receives $447 per month in Social Security benefits. There are no other sources of income. At the hearing, the chancellor ordered the marital home to be sold; because appellant had failed to preserve marital assets by spending most of the parties’ savings at casinos, he further ordered that appellee receive the first $7,500 in profit from the sale of the house, with the balance of the profit, if any, to be divided equally. The remainder of the personal property was divided equally among the parties, with the exception of those items that were non-marital property. The chancellor ruled appellant’s pension was marital property and ordered that it be divided equally between the parties. In awarding alimony, the chancellor’s order provides, “There is a substantial disparity in incomes of these parties and [appellant] should pay to [appellee] the sum of $100.00 per week alimony.”
Without the alimony award, adding each party’s Social Security check and one-half of the pension yields the following monthly income:
$872.00 + 337.50 = $1209.50 Appellant:
$447.00 + 337.50 = $ 784.50 Appellee:
We agree that these figures reflect a substantial disparity in the incomes of the parties, and therefore we find that an alimony award is justified.
However, the chancellor’s award has resulted in an even greater disparity in the parties’ incomes and has not rectified the economic imbalance between the parties. Taking into consideration the alimony award ordered by the chancellor, the parties’ monthly income is:
Appellant: $1209.50 - $433.40 = $ 776.10
Appellee: $ 784.50 + $433.40 = $1217.90
Appellee argues that the chancellor awarded her alimony to compensate for appellant squandering the parties’ retirement savings immediately prior to filing for divorce. We disagree. The chancellor addressed that concern separately when he ordered that appellee be given the first $7,500 in profit from sale of the marital home. The sole basis stated by the chancellor for awarding alimony was to address the substantial disparity in the parties’ income.
For the reasons stated above, we find that the chancellor abused his discretion in ordering appellant to pay $100 per week alimony, and we reverse and remand to the chancellor for a determination of the proper amount of alimony.
Reversed and remanded.
Hart, Rogers, and Stroud, JJ., agree.
Bird and Griffen, JJ., dissent. | [
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Subsets and Splits