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Carleton Harris, Chief Justice.
By application filed with the Arkansas Transportation Commission, Mistletoe Express Service of Oklahoma City, appellee herein, sought a certificate of public convenience and necessity as a motor carrier, intrastate in “express service” limited to shipments not exceeding 350 pounds. The application embraced 14 separate and distinct routes of a wide area of this state. Originally, 19 companies protested at the hearings held by the commission, and 36 witnesses testified on behalf of the public. Subsequent to the conclusion of the hearing, the commission granted the application with certain modifications, and from that order, appellants appealed to the Pulaski County Circuit Court. Upon that court’s affirmance of the commission order, appellants have appealed to this court. For reversal, appellants rely upon one point, viz-, “That the judgment of the Pulaski Circuit Court, Second Division, made and entered herein, is contrary to the preponderance of the evidence of record, insofar as it relates and pertains to the specific routes and points served by the appellants, and public convenience and necessity have not been proved for these routes and points.” In other words, protestants’appeal relates only to those routes affecting its operations.
In granting authority requested by Mistletoe, the commission made the following pertinent findings:
“(1) No shipment shall exceed 350 pounds from any one consignor to any consignee on any one day; (2) The holder shall be precluded from filing volume rates. Its charge shall be graduated from 1 pound to 100 pounds and shipments exceeding 100 pounds shall be assessed at the weight times the applicable 100 pound rate. ***
“Applicant is a wholly owned subsidiary of the Oklahoma Publishing Company. It has operated over 40 years as a motor common carrier of general commodities moving in express service. Intrastate service is conducted in Kansas, and it holds certain interstate operations between points in Texas, Oklahoma, Kansas and Missouri. An application for interstate authority in Arkansas which generally duplicates the intrastate authority sought in this application was approved by I.C.C. on July 12, 1973, Docket No. MC 42405 (sub 29). *** It proposes to handle primarily small shipments, including articles of unusual value. Rates proposed will be generally higher than those of other motor carriers asserting that freight artificial mínimums and single shipment charges make higher freight charges at lesser weight. It will have no minimum charge but will have a progressive rate structure beginning at one pound and progressing by pounds to 100 pounds. Its liability for loss or damage would be limited to $50.00 per shipment or fifty (50) cents per pound unless a higher value is declared in which event a charge would be made for excess value declared.
“Operating schedules will be published showing arrival times and departures which will be changed only upon notice to the public. Service will be provided five days a week with deliveries on Saturday morning. Daily schedules will be provided from Fort Smith to Little Rock, Little Rock to Pine Bluff and Hot Springs, and Fort Smith to Paris, Booneville, Waldron and Greenwood. An agent will be provided at each service point who will perform an overnight delivery service. A company terminal would be established at Little Rock to which would be assigned four road units and five pickups. One pickup would be based at Pine Bluff, Hot Springs, El Dorado, Magnolia and Camden; Texarkana would be assigned two pickups and one road unit. It is planned to initially base three road units at Fort Smith, one each at Rogers, Pine Bluff, El Dorado, and Magnolia. Applicant has a consistent safety program under the direction of a safety supervisor.”
It was then stated that the rates which applicant proposed to apply were based upon the block system used by REA Express, and this system was explained. The commission then extensively reviewed the testimony of a large number of witnesses, followed by a review of the operations of those protesting, including appellants, it being pointed out that figures rendered by these companies, projected on an annual basis, reflected that, as to Superior, about 0.7% of the company’s annual revenues would be subject to diversion by the granting of the application, about 2.1% of Garrison Motor Freight, Inc. would be subject to diversion, and 5.7% of Midway’s revenues would be subject to diversion. The following findings were then made:
“The Commission feels that the service proposed by the Applicant is a new and additional service which is different from the service of the general commodity carriers, bus companies, and small parcel carriers. This is in line with requirements that a certificate of public convenience and necessity may be granted only when existing service is inadequate, or additional service would benefit the general public, or the existing carriers have been given an opportunity to furnish the additional service required and have failed to do so. The proposed service of the Applicant differs from the service of general commodity carriers in that there is no minimum charge and more convenient schedules áre offered in the service proposed by the Applicant. It is well established that if the primary or sole justification for a grant of authority is that existing rates are too high, or that the proposed service will be less expensive to shippers, the application will be denied. ***
“Upon consideration of all evidence of record, and of the briefs filed by counsel, we find: Applicant is fit, willing and able financially and otherwise properly to perform the proposed service; that present and future public convenience and necessity require the proposed service to the extent hereinafter authorized, and, that the application should be granted as ordered, and in all other respects denied.”
In arguing for reversal, appellant calls attention to the fact that it is a rule of universal application in transportation matters that rates are not a factor to be considered in applications seeking certificates of public convenience and necessity, unless such rates are so excessive as to constitute an embargo of the involved traffic. We agree with this argument, and accordingly a discussion of the cases cited by appellant is not necessary. The commission itself apparently gave but little consideration to this phase of the case, stating that minimum rates were only considered as to some small items where the proof reflected that the minimum charge imposed by common carriers exceeded the value of the items shipped which, in the case of some shippers, had resulted in inability to solicit certain small accounts.
It is argued that there has been no showing that existing motor carrier service is inadequate to meet the reasonable transportation requirements of the supporting shippers, and that complaints have pertained only to minimum rates upon small weight shipments. Perhaps at this point, it would be well to review the applicable law in transportation cases. In the landmark case of Santee v. Brady, 209 Ark. 224, 189 S.W. 2d 907, we said:
“This court tries this case de novo, and renders such judgment as appears to be warranted and required by the testimony. Such is the provision in §2020, Pope’s Digest, and the holding in Mo. Pac. Rd. Co. v. Williams, and also in Potashnick Truck Service v. Mo. & Ark. Transportation Co.
‘The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required.’ ”
It was then pointed out that public convenience and necessity should be the first consideration and the interest of public utilities already serving the territory secondary. We then quoted 42 C.J. 687 with approval, as follows:
“‘The necessity for the proposed service must be considered as well as the added convenience thereof, although the word “necessity” is not used in this connection in the sense of being essential or absolutely indispensable, but in the sense that the motor vehicle service would be such an improvement of the existing mode of transportation as to justify or warrant the expense of making the improvement.’”
Subsequently, in the same opinion, we restated the general rule and emphasized the word “or” as follows:
“‘The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required.’ (italics our own.)
“The opportunity to the existing carriers is in the disjunctive sense of ‘or’ rather than the conjunctive ‘and.’ In other words, the certificate may issue if public convenience and necessity be shown, even if there be already existing service [Our emphasis], provided the Commission finds either:
a. that the present service is inadequate; or
b. that additional service would benefit the general public; or
c. that the existing carrier has been given an opportunity to furnish additional service as may be required.”
The present permit comes under “b”, i.e., additional service would benefit the general public. As pointed out by the commission, the general effect of the testimony of most of the witnesses who appeared in support of the application was that they were not presently receiving pickup and delivery service and the witnesses mentioned the slowness of general freight service, together with inconsistent delivery periods and the inconvenience and limitations (size and weight limitations) imposed by bus carriers and U.P.S.
The proposed service differs in several respects. As far as schedules are concerned, Mistletoe proposes to provide overnight and same-day service on published schedules which are to be rigidly observed in its operations. The service of the freight lines does not have an established schedule and the evidence shows that deliveries vary from overnight to two to three days. Mistletoe will furnish local pickup and delivery service at each point served while appellants provide local pickup and delivery service in only a few of the larger cities. Likewise, Mistletoe will have a representative in each town served while appellants provide this service only in the cities where they maintain terminals. While the minimum rate of the freight lines precludes some shippers of small items from using these common carriers, actually shipments over 150 pounds carried by Mistletoe will exceed charges of appellants. It also appears that shippers of the small items, prior to the approval of Mistletoe’s application, were largely using bus and small package carriers (not parties to this appeal) with the result that the permit to Mistletoe, even if it should obtain all the traffic at issue (which is hardly likely), would not really deprive the freight lines of any great amount of business. This is reflected by the evidence of the revenues appellants derive from their respective businesses annually.
Appellants suggest that it is doubtful that the commission has jurisdiction to limit the proposed service to shipments not exceeding 350 pounds, but no authority is cited, nor is any provision of the act mentioned in support of this contention.
We conclude that the finding by the commission that the service proposed is a new and additional service, different from the service of the general commodity carriers, and will benefit the general public, is not against the preponderance of the evidence.
Affirmed.
Holt, J., not participating
Garrison protested routes 1, 2 and 3 of the application as follows:
“1. Between Fort Smith and Conway, over U.S. Highway 64.
2. Between Fort Smith and Harrison, over U.S. Highway 71 to Rogers; thence over U.S. Highway 62 to Harrison.
3. Between Conway and Pine Bluff, over U.S. Highway 65. Since the application seeks the authority to serve intermediate points, Little Rock is involved in Route 3.”
Superior Forwarding Company, Inc., covered the following routes:
“3. Between Little Rock and Pine Bluff.
4. Between Little Rock and Sheridan.
5. Between Pine Bluff and Sheridan.
7. Between Little Rock, Benton, Malvern and Arkadelphia.
9. Between Little Rock, Benton and Hot Springs.
10. Between Pine Bluff and Hot Springs.
Serving all intermediate points upon the foregoing routes.”
Midway Motor Freight Lines, Inc. was interested in the following:
“5. Between Fort Smith and Texarkana, Arkansas.
7. Between Texarkana and Little Rock, Arkansas.
10. Between DeQueen and Little Rock, Arkansas.”
This was the authority sought.
The common carriers have a minimum charge of about $6.00 for each item, irrespective of the weight.
United Parcel Service.
It is also interesting to note that though possessing the authority, the record reflects that Garrison does not render any service between Little Rock and Pine Bluff, nor between some additional points in Eastern Arkansas. | [
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John A. Fogleman, Justice.
This appeal questions the holding of the chancery court that appellant’s claim for compensation for removal of his junkyard to a place more than 1000 feet from Highway 82 constituted a suit against the state. Under the circumstances, we agree with appellant that it was not.
For a better understanding of the issues and our opinion, we should examine the statute under which the Arkansas State Highway Commission, the appellee here and plaintiff below, proceeded and our decision in Arkansas State Highway Commission v. Turk’s Auto Corp., Inc., 254 Ark. 67, 491 S.W. 2d 387. The pertinent portion of the statute, Act 640 of 1967, Ark. Stat. Ann. § 76-2517 (Supp. 1973), reads:
“The Commission is authorized and empowered to require the screening of any junkyard by natural objects, plantings, fences, or other appropriate means so as not to be visible from the main traveled-way of any Interstate or Primary State Highway, and authorized and empowered to require the removal from sight of any junkyard not so screened which is so visible from the main traveled-way of such Interstate or Primary State Highway. Provided, that when the Commission determines that the topography of the land will not permit adequate screening or the screening would not be economically feasible, then just compensation shall be paid for the relocation, removal or disposal of the following junkyards: (a) those lawfully in existence on October 22, 1965; (b) those lawfully along any highway in this State made a part of the State Highway System on or after October 22, 1965, and before the effective date of this Act (June 29, 1967]; and (c) those lawfully established on or after the effective date of this Act. The Commission is hereby given the option of relocation, removal or disposal of affected junkyards and is also hereby authorized to make such payments, when in the best interests of the State. No compensation shall be paid for the relocation, removal, or disposal of any junkyards except those enumerated in this section;...”
Appropriate language from Arkansas Highway Commission v. Turk’s Auto Corp., Inc. follows:
The appellant, by a petition for mandatory injunction, sought to require the appellee, at its own expense, to screen its junkyard or remove it 1000 feet from the adjacent highway right-of-way. The appellee responded by asserting Ark. Stat. Ann. § 76-2513 et seq. (1971 Supp.) (Act 640 of 1967), which gives the appellant the asserted authority, is illegal, unconstitutional and void in that it purports to authorize the appellant to take appellee’s property without due process of law and adequate compensation. The chancellor held the statute unconstitutional as applied to the appellee because it is in violation of our constitution which prohibits the taking of private property for public use without just compensation. For reversal the appellant contends “[T]hat the trial court erred in holding Act 640 of 1967 unconstitutional as applied to the appellee, * * * and by denying and dismissing the appellant’s petition for a mandatory injunction pursuant to the aforesaid act.” We agree with the chancellor.
*****
It appears that for approximately twenty years this type of operation was conducted at the present location. The appellee has owned and operated this business since October 1, 1965, or before the enactment of the present legislation. The business fronted upon an existing highway within the city limits of West Helena, Arkansas. In 1966 or a year before the present Act, appellant, at its expense, constructed and completely screened the 500’ frontage of appellee’s salvage operation adjacent to the then existing highway so that the salvage yard was invisible to the traveling public. This screen was approximately 10’ in height. About two years later the Helena Loop or bypass was constructed adjacent to another portion of appellee’s property. This resulted in another public exposure of the existing junkyard. The appellant erected a transparent type chain link fence approximately 6’ in height along the 677' frontage of this bypass. Subsequently, the appellant, pursuant to the rules and regulations as authorized by the provisions of Act 640 of 1967, demanded that appellee effectively screen the renewed exposure of its operation from the view of the traveling public. According to the appellee, its business investment totaled $100,000 and it would require an expenditure by it of approximately $7,000 to comply with the type of screen that the appellant had constructed at its own expense a few years previously on the other side of appellee’s property. Appellee had insufficient space to “move back 1000 feet.”
The narrow issue posed is whether the imposition of this expense upon the appellee is a taking or exaction of his property rights without just compensation and due process of law.
It is undisputed that at the time of the enactment of the Act in question the appellee was conducting a lawful business. Article Two, Section 22, of the Constitution of our State provides:
“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation.”
It was aptly said in Ark. State Highway Comm. v. Union Planters National Bank, 231 Ark. 907, 333 S.W. 2d 904 (1960):
“ ‘The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking . . . We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.’ ”
*****
In the case at bar, we do not construe Bachman v. State, supra, as being broad enough to permit the enactment and enforcement of legislation which would require the appellee, whose business was in lawful existence at the time of the passage of this Act, to be burdened with the expense of screening his property upon the relocation of the highway. The Act actually recognizes that just compensation “shall be paid” to the owner of a junkyard in certain circumstances. It provides “that when the Commission determines that the topography of the land will not permit adequate screening or the screening would not be economically feasible, then just compensation shall be paid for the relocation, removal or disposal” of junkyards lawfully in existence. Appellee’s junkyard was lawfully in existence when the Act was enacted. Since the Act provides that, in the above enumerated instances, the owner “shall” be justly compensated, it is difficult to perceive why appellee should be required to screen his lawful business from public view without just compensation. We agree with the chancellor that the imposition of the cost of the screening upon appellee would be a deprivation of his vested property rights without just compensation and therefore, is unconstitutional as applied to him.
With this background, we review the history of the litigation. On October 29, 1970, the Highway Commission filed a petition for mandatory injunction against Foster. By this petition appellee asked that the court require appellant to screen his junkyard in accordance with its rules and regulations, so it would not be visible from the main travelway of Highway 82, or, in the alternative, if this could not be effectively done, to remove it a distance of 1000 feet from the right-of-way of the highway. A decree was entered on December 20, 1971, upon default by failure of Foster to file an answer. The decree followed the prayer of the petition and required him, within 35 days, to either screen thejunkyard or remove it.
After Foster was ordered to show cause why he should not be held in contempt for failure to comply with the court’s order, he filed an answer and motion, alleging that, in compliance with the court’s decree, he had removed and relocated his junkyard, that the same was legally in existence prior to October 22, 1965, and asked that a hearing be held to determine the just compensation due him. Appellee responded, alleging that appellant was not legally entitled to compensation for removal and relocation of thejunkyard and prayed that the motion for compensation be denied. No contention was made that appellant’s pleading was a suit against the state in the response or its supporting brief. Appellant filed a reply, alleging that thejunkyard had been located for many years prior to October 22, 1965 on one acre owned by him and ten acres leased to him; that he had been given the alternative to remove and relocate his junkyard, that he, in good faith, relied upon the alternative; that appellee knew at all times that he was moving to a new location; that he, in good faith, thought he would be compensated; that appellee is es-topped from contending that the junkyard could have been screened; that the portion of the act providing that appellee must find that the topography was not such that screening would adequately serve the statutory purpose or that screening would not be economically feasible is arbitrary, unreasonable and unconstitutional, being in violation of his rights under §§21 and 22, Art. 2 and § 1, Art. 7 of the Constitution of Arkansas and Amendment 14 of the Constitution of Arkansas. Appellant again asked that a hearing be conducted to determine the amount of compensation due him.
On August 19, 1974, a hearing was had on Foster’s mo tion. Appellant testified that he had run a junkyard at the site on Highway 82 for about 20 years before he was ordered to remove it and he could not move 1000 feet from the highway and remain on the site. He said that he had there about 300 junk cars, 200 tons of scrap iron, a junk dragline, seven loads of used pipe, 5 old tractors without wheels, and a lot of other scrap metal on the yard.
There was no evidence that the Highway Department had ever made any determination, one way or the other, about the feasibility of screening the site. Its pleadings and the decree entered in the alternative are definite indications that no such determination had been made. Its “Environmental Control Coordinator Director” testified to the obvious fact that the department could pay compensation under Act 640 of 1967 if the yard existed prior to the passage of the act and could not feasibly be screened. Although witnesses for both sides testified that the site could feasibly be screened, an expert witness called by appellant testified that it would cost SI 7,000 to screen the old location. There was no other evidence as to the cost of screening. Appellant testified that he was unwilling to undergo the expense of screening someone else’s land. He also said that he did not have enough room to move the junkyard 1000 feet from the right-of-way and still remain on this 11-acre tract. He said that the reason it took nine months to complete the removal and relocation was due to extremely bad weather conditions, the necessity for clearing underbrush and trees, digging a drainage ditch, building a road to the new site, which was low and swampy, and the difficulty experienced in moving the junk from the old site, which was also muddy and boggy.
Appellee contended that Foster had stood by and permitted the Highway Commission to appropriate his property or damage it, without making compensation therefor, so that his attempt to recover compensation was an action to compel the state to redress a past injury and a suit against the state prohibited by Art. 5 § 20 of the Arkansas Constitution.
There is no doubt about Foster’s having a vested proper ty right in the use of the premises on which he had operated the junkyard for twenty years. See Blundell v. City of West Helena, 258 Ark. 123, 522 S.W. 2d 661 (1975). Regulation which unduly invades this right runs afoul of constitutional due process requirements and prohibitions against the taking of private property without just compensation. Arkansas State Highway Commission v. Turk’s Auto Corp., Inc., 254 Ark. 67, 491 S.W. 2d 387; Bachman v. State, 235 Ark. 339, 359 S.W. 2d 815; Arkansas State Highway Commission v. Union Planters Bank, 231 Ark. 907, 333 S.W. 2d 904. An action under Ark. Stat. Ann. § 76-2513 et seq. (Supp. 1973) is in the nature of an eminent domain action, and may constitute the taking of private property rights entitling the affected property owners to just compensation. Arkansas State Highway Commission v. Turk’s Auto Corp., Inc., supra. We held in Turk’s Auto that the proceeding for mandatory injunction constituted a taking there. The same procedure here also constitutes a taking for which Foster was entitled to compensation.
Appellee’s argument that appellant’s claim for compensation in this proceeding made the state a defendant in the action in violation of Art. 5 § 20 of the Arkansas Constitution is not well taken. Appellant did not institute the action and the petition for mandatory injunction, when we look to its substance and prayer, itself performed the same function as a complaint in an eminent domain action, since appellant’s vested property rights for which he was entitled to just compensation were being taken by the proceeding. It would be just as logical to say that a landowner who claimed the right to just compensation in an eminent domain action instituted by appellant was making the state a defendant in its courts. When the state becomes a suitor in her own courts, she is subject to the same restrictions as a private suitor, is treated as any other litigant and must submit to and abide by the results. Arkansas State Highway Commission v. Partain, 193 Ark. 803, 103 S.W. 2d 53; Arkansas State Highway Commission v. Roberts, 248 Ark. 1005, 455 S.W. 2d 125; Arkansas Game & Fish Commission v. Parker, 248 Ark. 526, 453 S.W. 2d 30; Arkansas State Highway Commission v. McNeil, 222 Ark. 643, 262 S.W. 2d 129. There was no immunity from liability in this case. See Arkansas State Highway Commission v. Turk’s Auto Corp., Inc., supra. Furthermore, appellant’s answer and motion did not constitute a counterclaim, as appellee contends, anymore than a similar pleading in an eminent domain action would have, so Arkansas Department of Corrections v. Doyle, 254 Ark. 102, 491 S.W. 2d 602, relied upon by appellant, does not apply.
Although appellee does not specifically argue that appellant’s failure to File an answer within the statutory period bars his recovery, or constituted such standing by and permitting the state agency to take his property without compensation, as would relegate him to the State Claims Commission for relief, it has been suggested in our consultations. Appellant did not stand by and observe the taking and then institute an action to recover just compensation or to require the state to File a condemnation action or intervene in a pending suit between the state and other landowners, as was the case in authorities relied upon by appellee. The undisputed evidence is that Foster attended court time after time to report his activities in complying with the mandatory injunction.
The time for answer simply has no signiFicance, except as appellant’s acknowledgment that the state had a right to require him to screen his junkyard or move it. No answer is required in a suit by the state taking private property, unless the owner intends to claim special damages. Arkansas State Highway Commission v. Lewis, 243 Ark. 943, 422 S.W. 2d 866.
When the condemnor is put on notice of injuries which naturally flow from its taking, the damages resulting are not special damages. Arkansas State Highway Commission v. Lewis, supra; Arkansas Cent. R. Co. v. Smith, 71 Ark. 189, 71 S.W. 947. The special damages which must be pleaded in eminent domain proceedings are those which could not have been contemplated at the time of the taking. Bentonville R.R. v. Stroud, 45 Ark. 278; Fayetteville and Little Rock Ry. Co. v. Hunt, 51 Ark. 330, 11 S.W. 418; Ft. Smith & Van Buren Bridge Dist. v. Scott, 103 Ark. 405, 147 S.W. 440. See also, Arkansas State Highway Commission v. Lewis, supra. The only purpose of requiring the landowner to plead special damages is to avoid surprise. Arkansas State Highway Commission v. Dixon, 247 Ark. 130, 444 S.W. 2d 571. In sustaining judgments for elements of damages in cases in which no answer was filed, the important consideration has been whether the condemnor was taken by surprise and whether it made a specific objection on that account. See Arkanaas Louisiana Gas Co. v. McGaughey, 250 Ark. 1083, 468 S.W. 2d 754; Arkansas State Highway Commission v. Lewis, supra; Arkansas State Highway Commission v. Dixon, supra; Ft. Smith & Van Buren Bridge Dist. v. Scott, supra; Railway v. Hunt, 51 Ark. 330, 11 S.W. 418.
There is absolutely nothing in this record to suggest that it could not and should not have been contemplated that appellant was entitled to damages for complying with the mandatory injunction. Appellant had not then specified or intimated that it sought to require screening only. The chancery court’s order was in the alternative. When Foster moved for a hearing to determine the amount of his compensation he stated that he had removed and relocated his junkyard. His testimony that he met with the chancery judge and the Highway Department attorneys four or five times, reporting his progress and obtaining extensions of time because weather conditions impeded his moving, stands undisputed. Appellant was not surprised. It merely pleaded that Foster was not entitled to “any compensation for the removal of junked cars and other salvage from the premises in this cause pursuant to the order of the Court.” The first mention of the adequacy of screening came in a brief filed by appellant in support of this response in which appellant argued that “the yard is as flat as a table and would readily lend to removal or screening”. (Emphasis ours.)
Surprise was never asserted at the hearing and not a single objection was made by appellee to Foster’s testimony, in the course of which he detailed the reason for his removal of the yard, the reason why screening would not be economically feasible, and the cost and expenses incurred. Furthermore, not a single objection was made to the testimony of Foster’s expert witness who stated his opinion as to the cost of moving the junkyard and the cost of screening the original site.
Foster testified that the cost of removal was $27,540. His expert witness testified that under normal conditions the cost would be $16,800. In arriving at this figure he did not take into account the inclement weather conditions or the muddy condition of the two sites on that account. Neither did he consider 100 days’ use of a bulldozer to remove the junked cars from one site to the other. Foster testified that the bulldozer rental value was $50 per day and that the driver, normally earns $15 per hour. Nobody else testified on the subject.
The decree of the chancery court is reversed. This is a case, however, that we feel should be remanded to the trial court because the chancery court decided the case on the wrong legal theory. See Rebsamen Company Inc. v. Arkansas State Hospital Employees Federal Credit Union, 258 Ark. 160, 577 S.W. 2d 845 (1975). In order to do equity between the parties, the chancery court shall hear such additional testimony as the parties may offer on the subject in order to determine the amount of just compensation to appellant.
It is so ordered.
The Chief Justice and Jones, J., dissent. | [
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Georue Rose Smith, Justice.
This dispute arises from a written lease which contained two different options entitling the lessee to purchase the leased premises from the lessors. The lessee (the appellee) brought suit for specific performance, asserting its right to exercise the first option in the lease, under which the purchase price would be $75,000. The lessors contended that the lessee could exercise only the second option, under which the purchase price would be $125,-000. This appeal is from a decree upholding the tenant’s contention.
The facts are not in controversy. In 1954 Dr. and Mrs. Shelby Atkinson owned the property in question, consisting of three lots in downtown North Little Rock. The land, with its improvements, was then worth some $35,000. The parties executed a ten-year lease, expiring September 10, 1964, by which the owners leased the property to the appellee, a corporation, which agreed in the contract to remodel and im prove the property and to use it as a funeral home. At the end of the initial term the lessee exercised an option by which the lease was extended for ten more years, expiring September 10, 1974.
Paragraph 13 of the lease contains the two options to purchase. That paragraph first grants to the lessee an option to purchase the property for $75,000. The option is not to be effective until twenty years from the commencement of the lease “and may be exercised by the Lessee giving notice of its intention to purchase, in writing, at least ninety (90) days prior to the expiration of this lease agreement.” Paragraph 13 then provides that in the event the lessors desire to sell the property at any time during the existence of the lease or any extension thereof, the lessee shall be given preference and have the option to purchase the property at a price equal to the highest bona fide offer obtained by the lessors.
Dr. Atkinson died in 1954. The appellants, his widow and a bank, are the trustees under his will. In the summer of 1973, when the lease had more than a year to run, the tenant decided to spend some $33,000 upon an addition to its funeral home. The lease required that such an addition be approved by the lessors. On July 19, 1973, the tenant wrote to the bank, asking for that approval and going on to say: “I would also like for you to review our lease and tell me if we may advise the estate of Dr. Atkinson at this time that we intend to purchase the property, or must we wait until 90 days before the expiration-date of the lease?” 7'he bank approved the addition. Its letter added that the bank was reviewing the lease and would advise the lessee about the option to purchase, but no such advice was ever given.
In January of 1974 the bank listed the property for sale with a real estate agency, but the lessee was not informed of that action. On February 18 the lessee sent the bank positive written notice that the lessee was exercising its option to buy the property for $75,000. On March 4 the bank wrote to the lessee, acknowledging “that you have exercised your option to purchase said property.” The bank added, however, that it had elected to sell the property under the second option, that it had listed the property with a realtor, and that when a bona fide offer is obtained “you shall be notified and given an opportunity to purchase the property at that price.”
On March 21 the lessee filed this suit for specific performance of its contract to buy the property for $75,000. On September 6, four days before the expiration of the lease, the lessors filed a pleading stating that they had obtained an offer of $125,000 for the property and asking, in substance, that the lessee either meet that offer or relinquish its claim. The chancellor, as we have said, sustained the appellee’s right to purchase the property for $75,000.
The chancellor was right. In both logic and justice the appellee’s position is demonstrably superior to that of the appellants. More than a year before the expiration of the lease the appellee announced its intention to buy the property and, with the lessors’ approval, spent $33,000 in improving it. In due time the appellee gave the required written notice of its decision to purchase the property, thereby converting its option into a binding executory contract. See Trieschmann v. Blytheville Steam Laundry, 148 Ark. 237, 230 S.W. 3 (1921); Butler v. Richardson, 74 R. I. 344, 60 A. 2d 718 (1948); Sinclair Ref. Co. v. Allbritton, 147 Tex. 468, 218 S.W. 2d 185, 8 A.L.R. 2d 595 (1949). Thus the appellee unequivocally bound itself to buy the property at the agreed price of $75,000.
By contrast, the lessors committed themselves to nothing. Their action in listing the property for sale was purely unilateral and subject to cancellation at any time. In the circumstances the lessee’s irrevocable exercise of the first option to purchase necessarily had the effect of terminating any right that the lessors might otherwise have had to assert a cause of action under the alternative clause in Paragraph 13 of the lease.
Affirmed.
Fogleman, J., not participating. | [
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Elsijane T. Roy, Justice.
Appellants in this appeal, Michael Walker and Anthony Bell, were arrested on September 25, 1975, and charged with the murder of Marcelia L. Dillman which occurred during the course of a robbery. The State waived the death penalty. A jury found appellants guilty of first degree murder and they were sentenced to life imprisonment.
For reversal appellants rely upon several points. One assignment of error by both appellants is their assertion that they were entitled to separate trials either as a matter of right or because of the facts and circumstances of this particular case. Ark. Stat. Ann. § 41-4702 (Supp. 1973) designates as a capital felony “the unlawful killing of a human being when committed in the perpetration of * * * robbery.”
Ark. Stat. Ann. § 43-1802 (Repl. 1964), in part relevant to appellants’ contention, provides that “when two or more defendants are jointly indicted for a capital offense, any defendant requiring it is entitled to a separate trial. . .’’In Vault v. Adkisson, 254 Ark. 75, 491 S.W. 2d 609 (1973), it was pointed out that an appellant can invoke the procedure of a separate trial “as a matter of right” only when “the accused upon conviction is subject to the imposition of the death penalty.” Here the State waived the death penalty, a step which forecloses Walker’s plea for severance as a matter of right.
The alternative reason given by appellants for severance is that under the circumstances of this case it was an abuse of discretion for the trial court to refuse to grant severance because of the cross implicating aspect of their confessions.
Michael Walker’s statement was that he, Tony Bell and Wesley Long were riding around with some other “dude” and they were talking about robbing a store. Wesley told the “dude” to pull into the side of a store and the others got out while he (Walker) stayed in the car. Tony Bell was standing not far from the corner of the store and the other two went inside. He heard a shot from the store; then the others returned to the car. While driving home Wesley Long divided up the money and Tony Bell got some and he (Walker) got about $40.
Anthony Bell’s statement was essentially the same except he stated while riding around they “decided” to rob a store; identified the store as the Magic Market; Wesley Long got Mike’s gun and that he (Bell) stayed outside the store as lookout. After the shot the three ran and got in the car and on the way home they split the money, of which he received about $60 or $70 and Mike got about the same amount. Wesley told him a few days later the woman in the store had died.
In Mosby v. State, 246 Ark. 963, 440 S.W. 2d 230 (1969), the problem of cross-implicating confessions was raised, and we held that the unfairness inherent in such confessions could be avoided by either the granting of a separate trial or by deletion of the offending portion of the confession. The appellee made such deletions here. However, on cross- examination the State used undeleted confessions in the form of questions for the purpose of impeaching the credibility of the appellants, both of whom voluntarily took the stand. The trial court admonised the jury to consider these questions and answers as going only to credibility of appellants. Since both appellants testified the device of cross-examination enabled the appellants to avail themselves of every opportunity to refute any testimony adverse to their position. This satisfies the requirements of Bruton v. U.S. 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), in that confrontation is assured by virtue of the fact that here, unlike the situation in Bruton, both appellants had the opportunity to cross-examine on any information contained in the confessions. See also Miller v. State, 250 Ark. 199, 464 S.W. 2d 594 (1971). This same reasoning controls Appellant Walker’s contention that the trial court erred in denying his motion for a mistrial based upon the reading of Appellant Bell’s statement, which mentioned Walker, during the State’s cross-examination of Bell. The trial court warned the jury that such a statement could not be used in assessing guilt but only in assessing Bell’s credibility. Appellant Walker was able to counter the contents of the statement by his own testimony.
In United States ex rel Duff v. Zelker, 452 F. 2d 1009 (2nd Cir. 1971), cert. denied 406 U.S. 932, 92 S. Ct. 1807, 32 L. Ed. 2d 134 (1972), the court applied the rule on interlocking confessions and said:
We reject appellant’s claim that the admission of the written statements of Ferguson and Hill violated the rule of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The statements were similar to Duff’s own confessions, written and oral, which placed him at the scene with a fair implication of knowing participation. When the defendant’s ‘confession interlocks with and supports the confession of’ the co-defendant, there is no violation of the Bruton rule.
The Zelker case is quoted with approval in our case of Stewart & McGhee v. State, 257 Ark. 755, 519 S.W. 2d 733 (1975), cert. denied October 6, 1975.
Both appellants contend that their confessions were secured through coercion and were thus inadmissible. The standard controlling voluntariness of a confession has been expressed by this court in several cases. See Watson v. State, 255 Ark. 631, 501 S.W. 2d 609 (1973); Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968) and Mitchell v. Bishop, 248 Ark. 427, 452 S.W. 2d 340 (1970). Our latest expression of the test to be employed when involuntariness of confession is at issue is found in Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). There we said that:
. . . [I]n each case we will make an independent determination based upon the totality of the circumstances and that the trial judge’s finding of voluntariness will not be set aside unless it is clearly against the preponderance of the evidence, which we take to be the same standard of review as the ‘clearly erroneous’ rule followed by the federal courts, (citations omitted)
The burden is on the State to demonstrate that the confessions herein were “freely and understandably made without hope of reward or fear of punishment.” Harris, supra. In determining the voluntariness of an in-custody statement we have suggested that the following factors be considered:
. . ,[T]he age and the intellectual strength or weakness of the defendant, the manner in which he is questioned, the presence or absence of threats of harm or inducements in the form of promises or favor (citations omitted), and the delay between the advice of constitutional rights required by Miranda and the giving of the confession, (citations omitted)
Watson, supra.
One of the officers advised Appellant Walker that he would be better off if he made a statement - “got it off his conscience” - or words to this effect. However as in Degler, supra, there was no showing of how it would help and no offer of leniency or promise of favors, so this statement alone would not invalidate the voluntariness of the confession.
In accordance with the mandate of Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), the trial court conducted a hearing out of the presence of the jury and determined the appellants’ confessions were voluntary.
Appellants contend their confessions were extracted by physical brutality in the case of Michael Walker and psychological inducement in the case of Anthony Bell. The detectives involved in the actual interrogation deny having used any force on the appellants in order to secure a confession. The trial judge heard the testimony of the witnesses and observed their demeanor on the witness stand, an opportunity denied us as we review the cold record. Applying the guidelines articulated in Watson, supra, we cannot say that the appellants were not possessed of sufficient age or intellect to enable them to perceive and understand both the nature of the charge against them and the rights to which they were entitled concerning recourse to counsel. Both signed statements reflecting their understanding of the fact that they were to be provided counsel if they so desired at any time during the proceedings.
In Evans v. State, 251 Ark. 151, 471 S.W. 2d 346 (1971), the court said:
It is a firmly established rule of law that a defendant can intelligently waive his constitutional right to counsel. (citing cases)
Appellants Bell and Walker were 19 and 18 years old respectively at the time the confessions were made and both could read and write. Detective Thomas testified Bell told him that he had been to the eleventh grade, and Walker testified that he had a twelfth grade education. They were apprised of their constitutional rights and stated that they understood and voluntarily waived them.
In contrast to appellants’ allegations of physical abuse and psychological pressure Detectives Rounsavall, Harrison, Thomas and Best emphatically declared that no undue pressure or device was used to secure confessions from appellants.
Their interrogation was intermittent and lasted ap proximately four hours. There was some dispute as to whether appellants were shown a photograph of the victim and a statement by Long implicating them prior to their confessions. None of these circumstances, however, should call for suppression of these confessions. In Vaughn v. State, 252 Ark. 505, 479 S.W. 2d 873 (1972), the trial court’s determination that a confession was voluntarily given was upheld even though the appellant had been questioned intermittently for a period of about twelve hours. In Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311 (1969), a case involving a boy sixteen, the court noted that “ [b]y the great weight of authority a minor is capable of making an admissible voluntary confession, there being no requirement that he have the advice of a parent, guardian, or other adult.” In Deglerv. State, supra, the court held that the fact the appellant was shown a statement made by another implicating the appellant and the fact that the appellant was shown a photograph of the victim did not require reversal of the trial court’s finding of voluntariness of the confession.
We said in Mullins v. State, 240 Ark. 608, 401 S.W. 2d 9 (1966) issues of “conflicting testimony between appellant and the officers made a question of fact to be decided by the court pursuant to Act 489 of 1965.”
Act 489 was codified in Ark. Stat. Ann. § 43-2105 (Supp. 1973) and provides for the court’s determination away from the jury, by a preponderance of the evidence, of whether a confession has been made voluntarily. The court concluded the confessions were voluntary in Denno proceedings of some length. Furthermore, the court submitted the issue to the jury instructing inter alia: “If you find that Michael Walker’s confession was not voluntarily made, then you should find him not guilty.” (The court gave a corresponding instruction for Appellant Bell.)
Here we have the testimony of the officers that the confessions were.voluntary - the Denno proceedings from which the trial judge found the confessions were voluntary - and finally the jury verdicts of guilty indicating the jury found the confessions were voluntary. Certainly it cannot be said that the trial judge’s findings are so “clearly erroneous” or so clearly against the preponderance of the evidence as to require a reversal in this case.
Appellant Bell also submits as error the State’s failure to produce at trial all material witnesses connected with his confession, citing in support of his position Smith v. State, 254 Ark. 538, 494 S.W. 2d 489 (1973). The facts in Smith are inapposite because in Smith a material witness to the question of the voluntariness of a confession Was absent from the Denno hearing, as well as the trial itself.
Here, even though Detective Rounsavall was not called by the State in the trial proper, he testified in the Denno proceeding, and the court determined the confession was voluntary. Since it is the court’s responsibility to decide the issue of voluntariness, not the jury’s, and since the court did hear the testimony of all the material witnesses at the Denno hearing, it was not error for the State not to call Detective Rounsavall to testify at the trial. Walker v. State, 253 Ark. 676, 488 S.W. 2d 40 (1972).
Appellant Walker also contends the trial court asked prejudicial questions of his attorney, Garner Taylor, called as a witness by co-defendant Bell. The questions posed by the court to attorney Taylor touched upon Walker’s physical appearance while in jail. The Denno hearings took place out of the presence of the jury, thus eliminating any risk of the trial court’s queries having any prejudicial impact on the jurors at that time. Regarding some questioning of attorney Taylor by the court during the trial itself, the court indicated that Taylor was free to decline to answer at any time if he was of the opinion his testimony would prejudice his client in any way. A trial judge “has the right and the duty to ask questions to clear up an obscurity in the testimony or even to develop facts in regard to some feature of the case he feels has not been properly developed. ” Jordan v. Quinn & Etheridge, 253 Ark. 315, 485 S.W. 2d 715 (1972). It cannot be said from the record that the court’s questions in this instance generated that quantum of influence which would sway a jury toward a decision of guilt.
Another point urged by Appellant Walker as grounds for reversal is the trial court’s denial of appellant’s request that Dr. Worthie R. Springer, Jr. be allowed to testify as to appellant’s medical history. It appears that the doctor first saw the appellant a week after Walker was interrogated by the officers on September 25, 1974.
Dr. Springer’s visitor’s pass was dated October 3, 1974, and no one can see a prisoner without such a pass. The doctor was allowed to testify that Appellant Walker had suffered contusions, abrasions and sprains, evidencing physical abuse, but he did not know when the injuries occurred nor by whom they were inflicted. If he had been allowed to testify as to medical history it would have reflected Walker told him that he was physically abused by the interrogating officers.
On this point, we note that on September 26th, the day after the alleged physical abuse occurred, attorney Taylor saw both appellants and his testimony was that he did not see any signs of physical abuse (blood and bruises) on either appellant. This testimony would be more significant than Dr. Springer’s because the doctor did not see appellant Walker until a week after the alleged mistreatment.
Furthermore, we find no error in the court’s refusal to allow Dr. Springer to testify as to the medical history which Appellant Walker had related to him but about which Dr. Springer had no personal knowledge. Hogan v. Nichols, 254 Ark. 771, 496 S.W. 2d 404 (1973).
Appellant Walker’s last two alleged errors are that the trial court erred in denying appellant’s motion for a directed verdict and that the evidence is insufficient to sustain the conviction. The motion for directed verdict was based on the allegation that there was no corroboration of the testimony of the accomplice. In Pitts v. State, 247 Ark. 434, 446 S.W. 2d 222 (1969), referring to Ark. Stat. Ann. § 43-2116 (Repl. 1964), we said:
In construing the statute we have held that the test of the sufficiency of the corroboration whether, ‘if the testimony of the accomplice is eliminated from the case,’ the other evidence establishes the required connection of the accused with the commission of the offense, (citation omitted)
In the instant case the confession of Appellant Walker provided the “other evidence” needed to effect the “required connection of the accused with the commission of the offense.” See also Petron v. State, 252 Ark. 945, 481 S.W. 2d 722 (1972). The same analogy would be applicable to Bell if he had raised the objection.
As to the sufficiency of the evidence, there was testimony of an accomplice to this crime corroborated by the voluntary confessions of the appellants. This evidence is sufficient to sustain the convictions of the appellants. On appeal, the court reviews the evidence and all reasonable inferences deducible therefrom in light most favorable to the appellee and affirms if there is any substantial evidence to support the trial court’s findings.
In Stewart & McGhee v. State, supra, the appellants were charged with murder in the perpetration of an attempt to commit robbery. There we said:
. . .[U]pon appellate review, it is firmly established that we consider that evidence which is most favorable to the appellee, with all reasonable inferences deducible therefrom, and affirm if any substantial evidence exists to support the jury verdict. Miller v. State, 253 Ark. 1060, 490 S.W. 2d 445 (1973).
Having considered every objection and assignment of error as we are required to do by Ark. Stat. Ann. § 43-2725 (Supp. 1973) we find no error requiring reversal.
Affirmed.
George Rose Smith, J., dissents. | [
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John A. Fogleman, Justice.
The appellants, the husband and the guardian of Yvonne Gambill, brought this action for damages assertedly resulting from medical malpractice. After an extended trial there was a verdict for the defendant, Dr. Stroud. The principal question on appeal is whether we should modify our prevailing “same or similar locality” rule in malpractice cases, by which a physician, surgeon, or dentist is held only to the standard of competence that obtains in his own locality or in a similar locality. The rule is fully stated in AMI 1501, which the trial judge gave over the plaintiffs’ objections. AMI Civil 2d, 1501 (1974).
In discussing the issues of law that are presented we need not describe in detail the serious injuries suffered by Mrs. Gambill. The appellee and another surgeon were prepared to operate upon the patient in a Jonesboro hospital, for the removal of a thyroid cyst. The operation was not performed because, after the patient had been put under anesthesia, she suffered a cardiac arrest (and later respiratory arrest) that resulted in serious and irreversible brain damage. The plaintiffs’ claim against the anesthesiologist was settled before trial. It is not argued that there was no substantial evidence to support the verdict.
The evidence disclosed that Dr. E. B. Sparks, the anesthesiologist who participated, told Dr. Stroud that the patient was ready for surgery, but the procedure was stopped immediately after Dr. Stroud made an incision and found that Mrs. Gambill’s blood was “very dark.” This blood coloration is indicative of an inadequate oxygen supply in the blood. On the evidence admitted, there was a jury question as to Dr. Stroud’s negligence.
Appellants offered the testimony of Dr. James Mayfield and Dr. George Mitchell, Jonesboro anesthesiologists, Dr. Sparks, also of Jonesboro, Dr. Charles W. Quimby, an anesthesiologist who practices and teaches at Vanderbilt University Hospital and Dr. Davis A. Miles, a Little Rock neurologist, who testified that he was familiar with the standards of practice in Jonesboro or similar communities. Dr. Quimby had taught and practiced anesthesiology for five years at the Medical Center in Little Rock, during which time he conducted statewide seminars relating to types and techniques of anesthesia for general practitioners, surgeons, obstetricians and anesthesiologists. He had obtained a law degree from the University of Pennsylvania in 1959. There is no indication that any witness offered by plaintiffs was not permitted to testify, or that any pertinent testimony of any medical witness for plaintiffs was excluded. Appellants state in their brief that it was uncontroverted that the standards of medical practice in Jonesboro, Little Rock and Memphis were comparable. Appellants did not offer any instruction in lieu of AMI 1501. All of the parties tried this case under the same or similar locality rule.
In spite of the failure of appellants to show how they were prejudiced in the introduction of evidence or to offer an instruction expressing their theory of the proper test of negligence in a medical malpractice case, they did make a specific objection to reference to locality. We might well conclude our discussion on the instruction on the failure to offer a modified or substitute instruction. See Wharton v. Bray, 250 Ark. 127, 464 S.W. 2d 554. We consider the objection to support the contention that the locality rule is obsolete. We think, however, that the same or similar locality rule articulately expressed in AMI 1501 is proper, adequate, viable and not unduly restrictive on the evidence a plaintiff may introduce. In spite of its abandonment in some jurisdictions and limitations in others, it may well be the majority rule. See 61 Am. Jur. 2d 239, Physicians & Surgeons, § 116; 70 CJS 950, Physicians & Surgeons, § 43; Restatement of the Law, Torts 2d (1965) 73, § 299A. It has been recently applied in many jurisdictions. See e.g., Goedecke v. Price, 19 Ariz. App. 320, 506 P. 2d 1105 (1973); Peters v. Gelb, 303 A. 2d 685 (Del. Super. 1973); Bailey v. Williams, 189 Neb. 484, 203 N.W. 2d 454 (1973); Karrigan v. Nazareth Convent & Academy Inc., 212 Kansas 44, 510 P. 2d 190 (1973); Burton v. Smith, 34 Mich. App. 270, 191 N.W. 2d 77 (1971); McBride v. U.S., 462 F. 2d 72 (9 Cir., 1972).
The thrust of appellants’ argument is that the rule set out in AMI 1501 is no longer applicable to modern medicine, because doctors practicing in small communities now have the same opportunities and resources as physicians in large cities to keep abreast of advances in the medical profession, due to availability of the Journal of the American Medical Association and other journals, drug company representatives and literature, closed circuit television, special radio networks, tape recorded digests of medical literature, medical seminars and opportunities for exchange of views between doctors from small towns and those from large cities where there are complexes of medical centers and modern facilities.
However desirable the attainment of this ideal may be, it remains an ideal. It was not shown in this case, and we are not convinced, that we have reached the time when the same postgraduate medical education, research and experience is equally available to all physicians, regardless of the com munity in which they practice. The opportunities for doctors in small towns, of which we have many, to leave a demanding practice to attend seminars, and regional medical meetings cannot be the same as those for doctors practicing in clinics in larger centers. It goes without saying that the physicians in these small towns do not and cannot have the clinical and hospital facilities available in the larger cities where there are large, modern hospitals, and medical centers or the same advantage of observing others who have been trained, or have developed expertise, in the use of new skills, facilities and procedures, of consulting and exchanging views with specialists, other practitioners and drug experts, of utilizing closed circuit television, special radio networks or of studying in extensive medical libraries found in larger centers.
The rule we have established is not a strict locality rule. It incorporates the similar community into the picture. The standard is not limited to that of a particular locality. Rather, it is that of persons engaged in a similar practice in similar localities, giving consideration to geographical location, size and character of the community. Restatement of the Law, Torts, 2d, 75 Comment g, § 299A. The similarity of communities should depend not on population or area in a medical malpractice case, but rather upon their similarity from the standpoint of medical facilities, practices and advantages. See Sinz v. Owens, 33 Cal. 2d 749, 205 P. 2d 3, 8 ALR 2d 757 (1949). For example, appellants state in their brief that it was uncontroverted that the medical standards of practice in Jonesboro, Little Rock, and Memphis are comparable. Thus, they could be considered similar localities. The extent of the locality and the similarity of localities are certainly matters subject to proof. Modern means of transportation and communication have extended boundaries but they have not eliminated them. See Sinz v. Owens, supra; Tvedt v. Haugen, 70 N.D. 338, 294 N.W. 183 (1940), 132 ALR 379. The opportunities available to practitioners in a community are certainly matters of fact and not law and may be shown by evidence under our own locality rule.
Our locality rule is well expressed in Restatement of the Law, Torts 2d (1965) 73, § 299A, viz:
Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.
It is fallacious to say that our locality rule permits a doctor in one place to be more negligent than one in another place. It is a matter of skill that he is expected to possess, i.e., the skill possessed and used by the members of his profession in good standing, engaged in the same type of practice in the locality in which he practices, or a similar locality. The similar locality rule prevents highly incompetent physicians in a particular town from setting a standard of utter inferiority for the practice of medicine there. Restatement of the Law, Torts 2d, 75, Comment e, § 299A. See also 3 Sherman & Red-field on Negligence 1532, § 617 (1941).
One of the ideas suggested in appellants’ argument is that a national standard of care should be observed. This is also unrealistic. We cannot accept that premise as a matter of law and we certainly do not take the theory that such a standard exists to Be so well established that it can be judicially noticed. If it does factually exist to any extent, or in any case, then certainly it can be shown by evidence. If the medical profession recognizes that there are standard treatments, which should be utilized nation-wide this fact should be readily susceptible of proof under the similar locality rule, because the skill and learning should be the same and all localities would be similar. See Annot, 37 ALR 3d 420, 425; Peters v. Gelb, 303 A. 2d 685 (Del. Super. 1973); Rucker v. High Point Memorial Hospital, Inc., 285 N.C. 519, 206 S.E. 2d 196 (1974); Hundley v. Martinez, 151 W. Va. 977, 158 S.E. 2d 159 (1967). The same may be said for any region exceeding the boundaries of a particular city or town. This is much more likely to be true in cases where a specialist, and not a general practitioner like Dr. Stroud, is involved. See Prosser, Law of Torts (4th Ed.) 164, 166, Ch. 5, § 32; Naccarato v. Grob, 384 Mich. 248, 180 N.W. 2d 788 (1970); McGulpin v. Bessmer, 241 Ia. 1119, 43 N.W. 2d 121 (1950). For this reason, cases cited by appellant which involved specialists are of little persuasive weight. After all, in all but the obvious cases of negligence, the question whether the defendant physician has applied that degree of skill and learning which the law requires him to possess is dependent upon medical testimony. Davis v. Kemp 252 Ark. 925, 481 S.W. 2d 712.
One of the difficulties with the strict locality rule was the tendency to apply it as a rigid, exclusionary rule of evidence, rather than a definition of a standard of care required of a physician. Of course the standard does necessarily have a relationship to the admissibility of evidence. See Couch v. Hutchison, 135 S. 2d 18 (Fla. App. 1961). But the similar locality rule is not necessarily so restrictive, and an expert witness need not be one who has practiced in the particular locality or who is intimately familiar with the practice in it in order to be competent to testify if the appropriate foundation has been laid to show that he is familiar with the standards of practice in a similar locality, either by his testimony or by other evidence showing the similarity of localities. For examples of such witnesses held competent and testimony held admissible under a similar locality rule, see Dunham v. Elder, 18 Md. App. 360, 306 A. 2d 568 (1973); Sinz v. Owens, supra; Iterman v. Baker, 214 Ind. 308, 15 N.E. 2d 365 (1938); Kirchner v. Dorsey, 226 Iowa 283, 284 N.W. 171 (1939); Turner v. Stoker, 289 S.W. 190 (Tex. Civ. App., 1926); Riley v. Layton, 329 F. 2d 53 (10 Cir., 1964); Sales v. Bacigalupi, 47 Cal. App. 2d 82, 117 P. 2d 399 (1941); Dickens v. Everhart, 284 N.C. 95, 199 S.E. 2d 440 (1973).
It is also suggested that modern transportation and communications have so extended the borders of the locality as to bring the physician in a smaller community within the boundaries of a larger community where appropriate treatment may be assured to a patient, even though the physician in the small town be unable to give it because of limited facilities or training. Here again, the appropriate community standard may require that these doctors send such patients as may be taken to such larger centers, but when this is not practicable, the small town doctor should not be penalized for not utilizing means or facilities not reasonably available to him. This, too, is a fact question which may be inquired into under our similar locality rule. Furthermore, there is nothing in the instruction that limits the locality to the limits of a city. Lewis v. Johnson, 12 Cal. 2d 558, 86 P. 2d 99 (1939). It may be comprised of a much larger district or area, depending upon the particular facts and circumstances. See Warnock v. Kraft, 30 Cal. App. 2d 1, 85 P. 2d 505 (1938); Kirchner v. Dorsey, supra. For e.g., it might be established by evidence that Jonesboro is a part of a locality that also includes Memphis, Tennessee.
It also seems that appellants have overlooked the impact of better medical education, modern technology, and improved means of travel and communication upon the law as it now exists. If the impact is as great as they theorize then no change in the law is necessary. See Peters v. Gelb, 303 A. 2d 685 (Del. Super. 1973). These factors have already elevated the degree of skill and learning ordinarily possessed and used by members of the medical profession in every locality, if that premise is correct.
It has also been suggested that we should adopt a standard of care and skill based upon that of the “average qualified practitioner” and permit consideration of the medical resources available to the practitioner as a circumstance in determining the skill and care required. Not only would this put a jury in a predicament as to how to arrive at an “average” but it seems to us that requiring the skill of the “average qualified practitioner” automatically makes approximately one-half of the doctors guilty of malpractice. The question is not one of the “average” or “medium” skill, but of the minimum common skill. Prosser, Law of Torts, 165, Ch. 5, § 32. See Restatement of the Law, Torts, 2d, 75, Comment e, § 299A. As pointed out heretofore, the availability of medical resources already has had a bearing upon the question of similarity of localities and, to some extent, upon the establishment of the boundaries of a locality.
As a subordinate contention the appellants argue that the court should not have allowed the jury to take the typewritten instructions into the jury room because these appellants objected to that procedure. The statute requires only that the court deliver a copy of the instructions to the jury when counsel for all parties so request. Ark. Stat. Ann. § 27-1732.1 (Repl. 1962). That does not mean that any party has an absolute veto power when all parties do not agree. The question is still one falling within the trial court’s discretion, as it was before the present statute was adopted. Rutledge v. State, 222 Ark. 504, 262 S.W. 2d 650 (1953). We find no abuse of discretion in this case.
The judgment is affirmed.
Byrd, J., concurs.
George Rose Smith, Jones and Roy, JJ., dissent.
In this very case, appellants’ expert witness, Dr. Quimby, was permitted to testify, over the vigorous objections of appellee, that the problems encountered in the Gambill case are specific and unique and that the treatment of such cases is well known and clear-cut and that there was a deviation from this “norm” which was basic whether in New York City or Jonesboro, Arkansas.
See Tvedt v. Haugen, 70 N.D. 338, 294 N.W. 183 (1940).
We certainly are not unaware of the difficulties experienced by small towns and rural communities in attracting qualified physicians. A complete abolition of the locality rule would certainly add to these difficulties. | [
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Conley Byrd, Justice.
Appellant Helen Bartlett, following back surgery in the Memorial Hospital, North Little Rock, Arkansas, became infected with staphylococcus aureau coagulase positive, sensitive to many antibiotics. Based upon the depositions of Mrs. Bartlett, her husband and mother, hospital records, and the affidavits of the hospital administrator and Mrs. Bartlett’s treating physician, the trial court granted summary judgment in favor of appellee, Argonaut Insurance Companies, the hospital’s insurance carrier, Ark. Stat. Ann. § 66-3240 (Repl. 1966). For reversal the appellants, Mrs. Bartlett and her husband, Earl Bartlett contend:
“POINT I. The trial court erred in holding as a matter of law that res ipsa loquitur is not applicable.
POINT II. The trial court erred in holding that expert testimony is necessary to show a hospital used substandard housekeeping procedures.
POINT III. The trial court erred in granting summary judgment for appellee.”
The affidavit of I. Leighton Millard, M.D., Mrs. Bartlett’s treating physician is as follows:
“4. Medical and scientific matters relating to the prevention, discovery and control of staph infections are not commonly known and relate to subjects which require medical and scientific knowledge for a proper understanding.
5. Based upon my qualifications as a physician, upon my medical and scientific knowledge of staph infections, upon my personal knowledge of precautions taken by Memorial Hospital and similar hospitals in this community to prevent, discover and control staph infections, and after my review of the hospital records relating to the hospitalization, treatment and operation of Helen Bartlett, the Complaint filed in Cases No. 34- 71 and 37-73 of the Circuit Court of Van Burén County, Arkansas, and the depositions of Helen Bartlett, Orval Earl Bartlett and Ruthie Ezell, I find no evidence of negligence on the part of Memorial Hospital, its agents, servants or employees, and find no evidence of a breakdown of the aseptic or sterile techniques recognized and used by the hospitals in this community.
6. One of the known hazards to hospitalization and to conducting surgical procedures is post-operative infection. In spite of the use of the finest of aseptic and sterile techniques in hospitals and operating rooms, such as was in use at Memorial Hospital before and during the period of time in which Helen Bartlett was a patient, the staph germ which caused her infection cannot be eliminated. It is impossible for medical science, at this state of development, to guarantee against this staph infection. Post-operative infections are relatively common since there is an open wound during surgery and since the existence of the staph germ cannot be completely eliminated from the air and operating rooms. The patient or any other person could have brought the staph germ into the operating room and it would have been impossible to have prevented it. Even a mask on the face of all personnel in the operating room cannot eliminate the staph germs. The staph germ which caused Helen Bartlett’s infection could have entered her body in many ways and from many sources.
7. It is, therefore, my opinion that the infection which Helen Bartlett sustained was one of those unfortunate infections which occur in a significant percentage of cases which medical science, at this state of development, has been unable to prevent.”
The counter-affidavits filed in response to the motion for summary judgment stated in effect that the several counts in the complaint “are supported and will be supported at trial by substantial evidence to show that Memorial Hospital: (A) failed to exercise due care in the prevention and control of staphylococcus; and (B) followed poor housekeepirtg techniques which contributed to the growth and spread of staphylococcus.”
POINT I. We find no merit in the contention that res ipsa loquitur should be applied in this hospital infection case. \s pointed out in the affidavit of Dr. Millard, it is impossible for a hospital to be in complete control of a staph germ which may be brought in by the patient. Consequently, since a hospital cannot be said to be in complete control of that which the patient himself may carry, it follows that res ipsa loquitur cannot be applied. See Dollins v. Hartford Accident & Indemnity Co.. 252 Ark. 13, 477 S.W. 2d 179 (1972).
POINT II. The only proof in the record is the uncontroverted affidavit of Dr. Millard that the prevention, discovery and control of staph infections are not commonly known and relate to subjects which require medical and scientific knowledge for a proper understanding. Consequently, we cannot say that the trial court erred in holding that expert testimony is necessary to show that a hospital used substandard housekeeping procedures. See also, Aetna Casually & Surety Co. v. Pilcher, 244 Ark. 11, 424 S.W. 2d 181 (1968), to the same effect.
POINT III. We find no merit in the contention that the trial court erred in granting a summary judgment. The depositions of the Bartletts were to the effect that the hospital floors were not swept every day and that some of the nurses wore their hospital uniforms from home, but there is no proof by the appellants to show that such conduct on the part of the hospital was a proximate cause of the staph infection. With reference to the respondent’s duty to respond to a motion for summary judgment in Booth v. McCord, 248 Ark. 1213, 455 S.W. 2d 868 (1970), we said:
“It is well settled that, once a moving party establishes a prima facie case for relief by affidavits and other supporting documents, the adverse party must remove the shielding cloak of formal allegations in pleadings and demonstrate the existence of a genuine issue of material facts. Ark. Stat. Ann. § 29-211 (Supp. 1969); Mid-South Ins. Co. v. First National Bank of Fort Smith, 241 Ark. 935, 410 S.W. 2d 873; Deam v. O. L. Puryear & Sons, Inc.. 244 Ark. 18, 423 S.W. 2d 554. Mere allegations in a response to the motion are not sufficient, unless supported by showing facts admissible in evidence or otherwise showing how the respondent will support his contentions that issues of fact exist.”
Affirmed. | [
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LeRoy Autrey, Special Justice.
Joseph H. Weston, the editor and publisher of the Sharp Citizen, a weekly newspaper of Cave City, has appealed his conviction in the Clay County Circuit Court of the crime of criminal libel as defined in Section 41-2401 et. seq., Arkansas Statutes. The infor mation under which Weston was convicted alleged that he had on November 30, 1973, published in the Sharp Citizen “a false, malicious and defamatory libel” which “tended to impeach the honesty, integrity, veracity and reputation of . . . Liddell Jones,” the Sheriff of Clay County. The information charged and the undisputed evidence showed that the offending article in the Sharp Citizen was headlined as follows:
“SHARP CITIZEN MAKES A MISTAKE IN REPORTING STORY OF CORNING AND DISCOVERS THAT NARCOTICS RACKET FLOURISHES IN CLAY COUNTY AND CORNING UNDER DIRECTION OF SHERIFF LIDDELL JONES, AN APPOINTEE OF GOVERNOR DALE BUMPERS.”
The article below this headline included the following statement:
“In the meantime, however, we also discovered that law enforcement in Clay County has dropped to a low level again under the direction of the present sheriff, Liddell Jones, appointee of Governor Dale Bumpers who took office following the passing away of Sheriff Pond. It was Sheriff Liddell Jones and his deputies who made the threats of violence to witnesses of the death of Street Shaw.”
Mary D. Shaw, the widow of Street Shaw, deceased, testified that shortly after her husband had been shot and killed on October 11, 1973, Weston had come to her house for an interview to find out how her husband had been killed. Mrs. Shaw testified that she gave Weston the information which is set forth in the above set out newspaper headline and article. She said that she told Weston that William Donald, who was in jail wher her husband was killed, told her that he could get dope from Sheriff Jones.
Sheriff Jones had served as Sheriff of Clay County for about 15 months, succeeding Sheriff Bill Pond who had been killed in an accident. He testified that he had made the complaint against Weston; that the offending headline and the story appearing in the Sharp Citizen were false; that since he had been sheriff he had made arrests and pursued prosecutions in 20 to 30 drug and narcotics violations; and that he had been subjected to some degree of ridicule, scorn and public hatred from the offending headline and article in the Sharp Citizen.
The trial court jury instructions included the usual instructions in criminal prosecutions and the following:
COURT’S INSTRUCTION NO. 3
“It is unlawful, a crime, and a felony for any person to maliciously defame, either by writing, printing, or by signs or pictures or the like tending to blacken the memory of one who is dead, or impeach the honesty, integrity, veracity, virtue or reputation or to publish the natural defects of one who is living and thereby expose him to hatred, contempt and ridicule as set out in Section 41-2401 of the Arkansas Statutes. ”
COURT’S INSTRUCTION NO. 5
“In all prosecutions for libel the truth may be given in evidence in justification thereof.”
The Court refused the below set out instructions requested by the appellant:
REQUESTED INSTRUCTION NO. 1
“You are instructed that there are situations in which the law protects the author of a defamatory statement from prosecution for Criminal Libel. Where this protection is afforded a privilege is said to exist and even though the statement made be untrue, the author may not be subjected to criminal prosecution unless the statement was published with actual knowledge of its falsity or with reckless disregard of whether it was false or not. One area in which such a privilege exists is the area of comment upon matters of public concern or criticism of the official conduct of public officials.
“The Constitutional guaranty of freedom of speech and of the press, contained in the First Amendment, prohibits the imposing of criminal sanctions for truthful criticism of public officials, and criminal liability may be imposed for false defamatory criticism of the official conduct of a public official only if the statement is made with express malice, which is defined as actual knowledge that the statement is false, or a reckless disregard as to whether or not it is true or false.”
REQUESTED INSTRUCTION NO. 2
“When we speak of express malice in criminal libel case the term has a very distinct meaning apart from its ordinary use. A statement made with express malice is one made with actual knowledge that it is false or with reckless disregard of whether it is false or not. Therefore, even if you find that the statement was false and was made out of hatred you must acquit the defendant unless you also find beyond a reasonable doubt that the defendant either knew the statement to be false or published it with a reckless disregard of whether it was false or not. To find the statement was vehement, caustic, or unpleasantly sharp is not enough.”
The jury’s verdict found the appellant guilty and fixed his punishment “at a fine of $4,000.00 and/or imprisonment in the penitentiary for a period of three months.” The judgment of the Court provided that the appellant should “be fined, in accordance with the verdict returned by the jury, $4,-000.00, and that he be imprisoned in the state penitentiary for a period of three months.”
The appellant contends that his conviction should be dismissed on the grounds that Arkansas Statutes, Section 41-2401 et. seq. , is violative of the rights guaranteed under the First and Fourteenth Amendments to the Constitution of the United States in that the statute (a) does not require that a statement alleged to be libelous be false, (b) does not require that the allegedly libelous statement be made with actual malice when the statement refers to a public official or a matter of public concern, and (c) is so vague, general and indefinite in its terms that it fails to apprise one of the conduct proscribed. Appellant also contends that the Trial Court erred in refusing the appellant’s requested instructions 1 and 2 above set out and that the Trial Court erred in entering judgment and pronouncing sentence on the jury’s verdict.
The appellee contends (a) that the appellant’s requested instructions 1 and 2 correctly states the constitutional limitation on a prosecution for criminal libel; (b) that the Trial Court’s refusal to give instructions requested by the appellant resulted in the statute being unconstitutionally applied to the appellant; and (c) that this case should be reversed and remanded for a retrial. The appellee contends that “a judicial restriction of the statutory scheme in compliance with the holdings of the United States Supreme Court will avoid the necessity of striking the statute in question as unconstitutional, and then the statute will have only been unconstitutionally applied to the appellant.”
Appellant’s requested instructions 1 and 2 above set out follow the rule established by the U. S. Supreme Court in Garrison v. Louisiana, 379 U.S. 64, 78; 85 S. Ct. 209, 217 (1964). There the Court held that the Louisiana defamation statute was invalid under the First and Fourteenth Amendments to the Constitution of the United States. In so holding the Court applied the rule laid down in a civil libel case brought by a public official, New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964). In Garrison, the U.S. Supreme Court held that the Louisiana defamation statute was unconstitutional because it directed punishment for true statements made with “actual malice,” contrary to the rule laid down in New York Times, and in addition:
“The statute is also unconstitutional as interpreted to cover false statements against public officials. The New York Times standard forbids the punishment of false statements, unless made with knowledge of their falsity or in reckless disregard of whether they are true or false. But the Louisiana statute punishes false statements without regard to that test if made with ill-will; even if ill-will is not established, a false statement concerning public officials can be punished if not made in the reasonable belief of its truth.”
Like the Louisiana defamation statute in Garrison, Arkansas Statutes, Section 41-2401 et. seq., fails to prohibit punishment for truthful criticism. Section 41-2403, Arkansas Statutes, provides that truth “may be given in evidence in justification,” but this falls short of the New York Times rule which “absolutely prohibits punishment for truthful criticism.” Garrison v. Louisiana, 379 U.S. 64, 78; 85 S. Ct. 209, 217. Under the rule laid down in Garrison, truth is a defense even when the offending publication is not made “with good motives and for justifiable ends” as provided in Article 2, Section 6, of the Arkansas Constitution.
Also, like the Louisiana defamation statute in Garrison, the Arkansas criminal libel statute fails to prohibit punishment for false statements regarding public officials, “unless made with knowledge of their falsity or in reckless disregard of whether they are true or false.” Nowhere in the Arkansas criminal libel statute is there any exception for criticism of a public official.
The appellee argues that this Court may limit the application of the Arkansas libel statute so that it meets the requirements of the First and Fourteenth Amendments to the U.S. Constitution as laid down by the U.S. Supreme Court in New York Times and Garrison, but this Court must reject the appellee’s argument. While this Court must strive to uphold the constitutionality of a statute, it may riot read words into a statute to save its constitutionality. This rule was well expressed in Board of Commissioners of Red River Bridge District v. Wood et al, 183 Ark. 1082, 40 S.W. 2d 435, 438 (1931) as follows:
“The rule requiring courts to uphold the statute, if there is any doubt as to whether the power of the Legislature exists under the Constitution, does not authorize the court to read words into the statute even to save its constitutionality. If the statute does not violate the Constitution, or if there is any doubt about whether it does or not, it is the duty of the court to uphold the statute, but, if there is no doubt about the statute being in conflict with the Constitution, then it is the duty of the court to uphold the Constitution and declare the act void, and it is only in cases where the language of the act will bear two constructions that the court is justified in adopting a construction that will sustain rather than one which will defeat it.”
Clearly this Court has no authority to legislate or to construe a statute to mean anything other than what it says, if the statute is plain and unambiguous. Burrell v. State, 203 Ark. 1124, 160 S.W. 2d 218 (1942); Johnson v. Lowman, 193 Ark. 8, 97 S.W. 2d 86 (1936). The language of the statute here involved is clear and unambiguous, and this Court has no authority to amend the statute to conform to the rules laid down by the U.S. Supreme Court in New York Times and Garrison.
In Commonwealth v. Armao, 286 A. 2d 626, 632 (1972) the Supreme Court of Pennsylvania held that the Com monwealth’s criminal libel statute was unconstitutional because (1) the statutory language made no provision for truth being an absolute defense and (2) no recognition was given in the statute to the reckless disregard and knowing falsity standards mandated by the U.S. Supreme Court in New York Times and Garrison. In rejecting the argument of the Commonwealth that the Court should construe this criminal libel statute to make it meet the requirements of the First and Fourteenth Amendments to the U.S. Constitution, the Court there stated:
“The Commonwealth urges us to in effect re-draft the criminal libel statutes in accordance with First Amendment requirements. To accede to this request would be to undertake a wholly inappropriate judicial activity amounting to judicial legislation. See State Board of Chiropractic Examiner v. Life Fellowship of Pennsylvania, 441 Pa. 293, 300, 272 A. 2d 478, 482 (1971); Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 320, 196 A. 2d 664, 667 (1964). Nor can we perceive any possible means of merely severing out the invalid portions of the statutes, for not only must the legislative body have intended the statute or section to be separable, but also the act must be capable of separation in fact. See Saulsbury v. Bethlehem Steel Co., supra, at 320-321, 196 A. 2d at 666-667.”
The above set out jury instructions numbered 3 and 5 given by the Trial Court correctly stated the statutory law, but the Arkansas criminal libel statute is unconstitutional under the rulings of the U.S. Supreme Court in New York Times v. Sullivan, supra, and Garrison v. Louisiana, supra.
Reversed and dismissed.
Fogleman, J., not participating.
Arkansas Statutes, “Section 41-2401 Libel Defined. A libel is a malicious defamation, expressed either by writing, printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, veracity, virtue, or reputation, or to publish the natural defects, of one who is living, and thereby expose him to public hatred, contempt and ridicule.
“Section 41-2402 Penalty for Libel. Every person, whether writer, printer or publisher, convicted of the crime of libel, shall be fined in any sum not exceeding five thousand dollars (15,000.00) and may also be imprisoned, not exceeding one (1) year at the discretion of the jury who shall pass on the case; and when any such case shall be decided without the intervention of a jury, then at the discretion of the Court.
“Section 41-2403 Truth as justification for libel. In all prosecutions for libel under the provisions of the prepeding sections, the truth thereof may be given in evidence in justification.”
Article 2, Section 6, of the Arkansas Constitution provides:
“The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such rights. In all criminal prosecutions for libel the truth may be given in evidence to the jury; and, if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party charged shall be acquitted.” | [
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Carleton Harris, Chief Justice.
This is a divorce case between Rosemary Lockley, appellant herein, and David Orr Lockley, appellee. Questions presented are the validity of property transactions between the two; the jurisdiction of the trial court in entering an in rem order as to title to lands located in another state; the granting of a divorce to appellee, and the refusal to grant appellant a divorce on her counterclaim.
Appellee was formerly married to Sedella Lockley (according to the complaint, for more than 40 years) , sister of appellant, such marriage being terminated by the death of Sedella on August 17, 1972. There were no living children of the marriage, the only child having died as a baby. Appellant came down for the funeral and returned to her home in Michigan. In January, 1973, appellee went to Leslie Michigan to get appellant who returned to Arkansas with him for the purpose, according to appellant, of helping him take care of his income tax. Rosemary brought with her her 13-year-old daughter, Beverly. Appellant’s five other children were left with an older married son. The two were married in February, 1973. Prior to the marriage, two of the younger children came to Arkansas. According to Rosemary, they first separated about two months after the marriage. . She remained away four or five days, but returned at the behest of Mr. Lockley. Thereafter, she again left appellee and on that occasion instituted suit for divorce in the Cross County Chancery Court. Complaint was filed on May 22, 1973. She apparently remained away for about a week before returning to the Lockley home. Lockley owned a farm in Cross County, on which the home is located and on May 31, 1973, this property was conveyed by Lockley to himself and Rosemary as tenants by the entirety. Subsequently, on June 15, 1973, a house was purchased in Leslie, Michigan, the property being conveyed to appellee and appellant as tenants by the entirety. After making the purchaser *he parties returned to Arkansas, and Rosemary, after rerfwning at the Arkansas home for only a few days, left, and returned to Leslie. Thereafter, Lockley instituted the present suit for divorce. Appellant counter-claimed, seeking a divorce and property rights. On trial, after the taking of testimony, the court rendered rather comprehensive findings in which it awarded a divorce to Mr. Lockley on grounds of indignities, rejected the charges (hereinafter discussed) made by Rosemary against appellee, found that appellant had deliberately induced Lockley to place the title to the Cross County property in the parties as tenants by the entirety; found that the same situation existed as to the Michigan property, and the court, in its order, set aside the deed from Lockley to himself and Rosemary to the Cross County property, and vested the title to the home in Michigan in Lockley alone. The court, however, apparently recognized that this last action was of doubtful validity and accordingly an alternative order was also entered giving Lockley a lien against the Michigan property to the full extent of the purchase price. As to personal property, a new automobile, which had been given to Rosemary soon after the marriage, was given to appellant, and appellee was ordered to pay to her the sum of $5,000 in cash. From the decree so entered, appellant brings this appeal. For reversal, four points are asserted which we proceed to discuss in the order listed.
THE TRIAD COURT ERRED IN SETTING ASIDE THE DEED FROM THE APPELLEE-HUSBAND TO THE APPELLEE AND THE APPELLANT-WIFE AS AN ESTATE BY THE ENTIRETY TO PROPERTY LOCATED IN CROSS COUNTY, ARKANSAS.”
The court rendered its Finding No. 1 as follows:
“1. This case is an outstanding example of the folly of quick marriages, and particularly those which occur shortly after the death of the spouse to whom one of the parties has been married many years. The plaintiff and his former wife had lived together many years, and apparently happily. Shortly after she died, the plaintiff and the sister of the deceased, Rosemary, the defendant herein, established contact, and their marriage took place on February 17, 1973. It was only a short time before Rosemary left, and filed suit for divorce. After persuasion she came back for a short time. During this time she persuaded the plaintiff to place the title to his Cross County farm, which included his home, in both their names. She also persuaded him to withdraw cash from bank accounts in Arkansas, and to purchase with those funds a home in Michigan, title being taken in both their names. Also, the plaintiff bought the defendant a car during this period, as well as gave her cash monies.”
Mr. Lockley, who can neither read nor write, other than print his name, testified that appellant was dissatisfied and that she said if the property were placed in their joint names, she could “do better.” Appellee stated that his wife said she could handle the business better than he could because of his lack of education; that he realized that he needed help, and he believed what appellant said and relied upon it. He also said that Rosemary told him that the title in both names would be beneficial as to inheritance tax in that money would be saved and that he believed her and relied upon such information. Mrs. Lockley said that she originally came to Arkansas to help appellee with his income tax, testifying that he stated he would pay her to render such aid. She said that she wrote all the checks for purchases made, and that appellee had total bank accounts of about $68,000 in three different banks; that there were 120 acres in the home property valued at approximately $300.00 per acre, a well-furnished three bedroom brick house with modern conveniences; that the house would be valued at $35,000 or $40,000. Admittedly, all the money mentioned had been acquired by Mr. Lockley. Appellant said she filed the divorce complaint about the time she talked to her daughter Beverly about the actions of Mr. Lockley. According to her testimony, appellee had been making advances toward this 13-year-old girl and he had made various purchases of personal items for the daughter. She said that she had seen him kissing the daughter on the neck but that her husband said “I love her just like a daddy”, but this statement did not conform to her daughter’s comments. Appellant stated that after talking with Beverly she left her husband and went to her brother’s home; that he came and talked with her several times endeavoring to get her to come back to him; that he said if she would come back “he would change everything over.” She said that she finally agreed to return, but set out certain conditions. Appellant added that he told her that he didn’t want his people to have the property, “When I die I want you to have it.” Within a few days, the deed to the Cross County property was executed.
Appellant’s brother, a resident of Cross County, also testified but his testimony added but little to the question now under discussion.
Certainly, we cannot say that the chancellor’s finding was against the preponderance of the evidence. It is very apparent that Lockley wgs almost totally uneducated; that he knew little of business matters; that he recognized and believed his wife was better able to handle such transactions as evidenced by the fact that admittedly she wrote all checks. The testimony from both parties makes it clear that he wanted her to return to live with him. In Harbour v. Harbour, 103 Ark. 273, 146 S.W. 867, this court stated:
“If it be true that she married and started in with the deliberate intention to simulate an affection she did not feel for a man much older than herself in order that she might acquire the title to his property and despoil him of it and drive him from the home he had purchased and conveyed to her in his utter reliance upon her affection, loyalty and faithfulness to him, or if she later formed such a design and pursued it with such intention to the consummation proved herein, we do not see why it was not such a fraud against his rights that equity should relieve against it.”
Further, quoting from an Oklahoma case, we added:
“The majority of cases between man and wife where questions arising out of constructive fraud, undue influence, or a violation of confidence reposed are involved are generally those wherein the wife sues to secure relief from contracts, gifts, and transactions entered into under the influence of the husband; the cases quoted from above, however, and some others cited are those where the husband was the victim. The principle controlling the rule for relief under either situation is the same. It is that influence has been acquired and abused; confidence reposed and betrayed. It is of no consequence that the one deceived is a man, and the other party a woman. Difference in sex does not create the equities, nor alter the rule. It is the confidential relationship existing between the parties and the fact that the acts done spring from it which create the equities. In the case at bar it appears that the sole consideration for the transfer of this property from the husband to the wife was the affection and confidence which he had in her as his wife. She was not a stranger to him, nor did she pay him any valuable consideration for the property. As he doubtless viewed it, their relationship made them virtually one person, and it was probably a matter of indifference to him whether the title to the property was in her or himself. They were to jointly use it as a continuing, harmonious family. He did not give it to her, nor did she receive it, in contemplation of divorce and separation; the transaction had its life and being in the sacred relationship of husband and wife. Without this it would never have taken place.”
In its Finding No. 5, the court stated:
“The court finds that Rosemary deliberately induced Mr. Lockley to place the title to the Cross County property in their names as tenants by the entirety, with the knowledge that she did intend to continue to live with him as man and wife. The court further finds that the same state of affairs is true as to the home in Michigan. Rosemary should not be permitted to profit by these unconscionable actions. Therefore, the court finds that the deed from Mr. Lockley to himself and Rosemary will be set aside.”
A circumstance that seems indeed pertinent in determining this litigation is that appellant agreed to go back to Lockley, even though her daughter told her that he had made improper sexual advances to her; still further, appellant testified that appellee had abused her (appellant) sexually, stating that he “mutilated” her. Now, if these things had happened, particularly the former, the love of a parent for a child being what it is, it is difficult to see how appellant could have resumed her relationship with appellee, and the fact that she subsequently left him a third time permanently, within three weeks after this deed was executed, is a potent circumstance indicative of the fact that she set out to acquire whatever property rights could be cajoled out of Mr. Lockley. We find no error in the ruling as to the Cross County property-
“II.
THE TRIAL COURT ERRED IN ENTERING AN IN REM ORDER OPERATING DIRECTLY UPON THE TITLE TO LANDS LYING IN THE STATE OF MICHIGAN BY REFORMING A DEED VESTING TITLE IN APPELLEE-HUSBAND ALONE OR IN GIVING HIM A LIEN AGAINST SUCH PROPERTY LOCATED IN THE STATE OF MICHIGAN.”
The facts leading to the purchase of the property in Michigan are pretty well covered in the discussion under the preceding point. At the same time that Mr. Lockley was endeavoring to persuade appellant to return to him and discussed with his wife the Cross County property, he also agreed to purchase property in Leslie, Michigan. Appellant stated that Lockley told her he knew what it would take to make her happy, and that would be to return to Michigan; that they went to Leslie, Michigan for the purpose of buying § home. She said that appellee had never been in Michigan éxcept when he drove there to get her and take her back to Arkansas. The two looked at a house, liked it, and made the purchase for the sum of $34,000 which was drawn from Mr. Lockley’s bank accounts. This purchase took place on June 15, 1973, and the parties after staying there for a day or two, returned to Arkansas.
Lockley stated that his wife wanted to buy property in Michigan since some of her children were going to school there, and that she said they would live there for about three years until the children were out of school and that they would then return to Arkansas to live. Lockley said that he believed her and they made the trip, found the property that she liked and purchased it as she desired, i.e., “She wanted it in mine and her name and I put it there.” While, as previously stated, this record is most confusing, it does appear that they stayed in Michigan for one or two nights, returned to Arkansas and, according to Lockley, appellant left the day after they arrived in Arkansas. At any rate, only a few days elapsed. Again, we do not find, for the same reasons enumerated under the preceding point, that the chancellor’s finding should be overturned. However, the court erred in its disposition of the property. The finding was as follows:
“The court finds that, from an equitable standpoint, title to the home in Michigan is vested in Mr. Lockley alone, and the deed to it should be reformed to that effect. In the alternative, if this cannot be accomplished, then Mr. Lockley is given a lien against the Michigan home in dollars to the full extent of the purchase price.”
This transfer of title cannot be accomplished under the method employed by the chancery court. As stated by Dr. Robert A. Leflar, distinguished professor of law, in American Conflicts Law, § 173, p. 427:
“The only state which can, by operation of law and apart from the act of the parties, transfer title in land out of one person and into another is the state where the land lies.”
In § 174, p. 428, it is stated:
“Although the courts of one state are without power to issue any judgment or decree directly affecting title to land in another state, it is permissible for them to issue in personam judgments and decrees in suits involving foreign land. *** The court’s decree for the plaintiff is good so long as it merely orders the defendant to execute conveyance, and does not purport to pass the title in the extrastate land. The conveyance executed under the legal duress of such a decree is recognized as valid. A court’s power to issue decrees for conveyance of foreign land is not limited to suits on contracts, but may be exercised in any case in which an in personam right to have conveyance is discoverable.”
In our own case of Tolley v. Tolley, 210 Ark. 144, 194 S.W. 2d 687, the court held that a Kansas divorce decree awarding certain Arkansas realty to the wife involved an attempt by the Kansas court directly to adjudicate title to property outside the jurisdiction of Kansas, and was not effective in this state. The Kansas decree awarded the land to the wife, “free and clear of all claims and liens of the defendant.” In discussing the case, this court said:
“The judgment of the District Court of Wyandotte county, Kansas, contained this language: ‘It is further ordered and decreed that plaintiff be and she is hereby awarded the following described real estate, to-wit: The southeast quarter (!4) of the southeast quarter (V\) of section ten (10), township seven (7) north, range five (5) west, consisting of forty (40) acres of land, more or less, in White County, Arkansas, free and clear of all claims and liens of the defendant.’ This was a decree in rem by the Kansas court, attempting to settle title to real estate in Arkansas by operating directly on the title. The full faith and credit clause of the United States Constitution does not afford any sanctity or force in the State of Arkansas to such judgment of the Kansas court, because the Kansas court was without jurisdiction to vest title to Arkansas real estate in the form in which this judgment was rendered. Fall v. Eastin, 215 U.S. 1, 30 S. Ct. 3, 54 L. Ed. 65, 23 L.R.A., N.S., 924, 17 Ann. Cas. 853. In that case just cited, Mr. Justice McKenna, speaking for the United States Supreme Court, quoted from the earlier case of Watts v. Waddle, 6 Pet. 389, 8 L. Ed. 437: ‘It is not in the power of one state to prescribe the mode by which real property shall be conveyed in another. This principle is too clear to admit of doubt.’ In speaking of the full faith and credit clause, Mr. Justice McKenna said: ‘This provision does not extend the jurisdiction of the courts of one state to property situated in anoth-
“In 27 C.J.S. 1287 the rule is stated: ‘sincejurisdiction to render a judgment in rem inheres only in the courts of the state which is the situs of the res, a divorce decree which attempts to settle the title to lands in another state, by operating directly on the title, and not by compelling the holder of the title to convey, is void and not res adjudícala of the same claim in an action between the same parties and involving the same land.’
“And in 17 Am. Juris. 369 this appears: ‘The rule is well established that in divorce proceedings the courts of one state cannot, by their decree, directly affect the legal title to land situated in another state, . . .’
“And in Leflar on ‘Conflict of Laws, ’§119, the rule is stated: ‘The only state which can, by operation of law and apart from the act of the parties, transfer title in land out of one person and into another is the state where the land lies.’”
See also Kendall v. Crenshaw, 116 Ark. 427, 173 S.W. 393. In the Michigan case of Parkinson v. Guilloz, et al, 231 N.W. 89, the Supreme Court of Michigan said:
“The evidence consisted of plaintiff’s testimony, taken by deposition, and the introduction of records and opinions of the California courts, which are claimed to be res adjudicata. In Guilloz v. Parkinson, 204 Cal. 441, 268 P. 635, the court held that plaintiff did not hold the lots in trust for defendant. The decision authorized a personal decree, but expressly recognized that the title to the lots was determinable only by the courts of this state. The decision is not res adjudicata here.”
Here, Mrs. Lockley was not directed to execute a deed to Mr. Lockley conveying the Michigan property; rather, the court itself divested Mrs. Lockley of title, and it was without authority to do so. Of course, the alternative set out by the court was also beyond its authority. It follows that this portion of the decree will have to be reversed.
“III.
THE DIVORCE GRANTED TO APPELLEE-HUSBAND ON HIS COMPLAINT IS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE.”
The trial court found as follows:
“3. The court finds that a divorce should be awarded to Mr. Lockley on the grounds of indignities. While the corroboration of Mr. Lockley’s testimony is rather slight, this court cannot be blind to the circumstantial evidence set out above. When all of the testimony of all of the witnesses, including Rosemary herself, is put together with the actual facts and circumstances, this court must conclude that Mr. Lockley is entitled to a divorce.
“4. The court rejects the charges made by Rosemary against Mr. Lockley.”
We agree that the corroborating evidence offered by Mr. Lockley was slight, but we are also of the opinion that considering the findings of the court, and the circumstances reflected by the evidence, we cannot say that his decision in granting a divorce was erroneous. Of course, we have said numerous times, so numerous as to require no citation of authority, that corroboration in contested divorces need only be slight. What are the circumstances in the present case? First, let it be pointed out that the court specifically rejected the charges made by appellant against appellee. Let it be remembered that the chancellor heard and saw all of these witnesses, an advantage we did not have, and his rejection of the accusations made by Mrs. Lockley is quite significant, for if the charge made by appellant to Mr. Lockley that he was making improper advances to her daughter was not true, this was an extreme indignity that would “cut to the quick”. That we consider there was excellent reason for the chancellor to disbelieve this testimony, has already been indicated in our earlier discussion pointing out that it is unusual for a woman to return to her husband if such abuse of a child has taken place. Strongly indicating her feelings toward this husband, even though she returned to his abode, was her statement in court, “I would have rather been dead than live with him.” Of course, we daresay most any husband denied the conjugal relationship, would consider this a gross indignity. Her testimony, throughout the evidence definitely leaves the impression that she looked upon him with loathing, and held him in complete contempt. Of course, leaving him, and returning soon thereafter, as well as instituting suit against him, were indignities if there was no just cause for the leaving and the institution of the suit. The fact that she returned on these occasions, and dismissed her complaint, denotes that these actions were perhaps not justified. At any rate, we are. unable to say that the chancellor’s findings were against the preponderance of the evidence on this point.
“IV.
THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT-WIFE A DIVORCE ON HER COUNTERCLAIM.”
Of course, under the finding in Point III, there is really no need to discuss this contention, for if Mr. Lockley was entitled to a divorce because of indignities, it necessarily follows that Mrs. Lockley was not so entitled. Beverly Beegle, the daughter, sustained her Mother’s allegations to a degree, stating that Lockley pinched her between the legs and on her breast, and that he had put his hands under her blouse touching her breasts. It has already been pointed out that the court did not accept testimony relative to this charge and we certainly cannot say, from the printed record, that it should have been accepted. Of course, though denying the divorce, the court did find:
“Mr. Lockley did marry Rosemary, although foolishly, and she did live with him for a short time. Therefore, he should not be permitted to escape unscathed. Therefore, the court will permit Rosemary to retain the automobile, and any household belongings purchased while they were married which are presently in her possession. Any belongings which she took with her which belonged to Mr. Lockley and/or his former wife should be returned to Mr. Lockley. In addition, Mr. Lockley will be ordered to pay Rosemary the sum of $5,000.00 in cash.”
For the reasons set forth under Point II, that portion of the decree is reversed and the cause remanded for further orders or proceedings; furthermore, because of our reversal on this point, the chancellor may, if he deems it proper, reconsider the distribution of assets.
It is so ordered.
The record is confusing in this respect. Appellee testified that he was 55 years of age at the time of trial and that he was married to Sedella for more than 40 years. This, of course, would mean that he was 14 or 15 years of age at the time of this marriage. According to the marriage license, appellee was 60 years of age at the time of his marriage to Rosemary.
Appellant had seven children by her first marriage to Charles Beegle, from whom she was divorced.
The record in this case is very difficult to follow. Different dates and different months are mentioned as the time of the separation.
Appellant’s suit for divorce was dismissed on June 11, four days before the Michigan property was acquired.
From the record:
“Before we got married everything — he told me we would stay and he would will the house to Beverly, he would give Beverly the house, everything would go to Beverly. I told him I didn’t want it, so it was Beverly. Everywhere he went he took Beverly. He never asked me to go, it was always Beverly and he loved Banana cake and he would come in and ask her first to bake one, he never asked me to. I would go to cook and he would come in and take over. It wasn’t because I didn’t want to cook, he didn’t want me to cook, if he wanted anything done he asked Beverly. He bought for Beverly, he didn’t buy for me. Well, I wasn’t jealous but it hurt me to think he would do that on her birthday he bought her a cake and an eighty-eight dollar ($88.00) bicycle. When mine came around he bought me a 39* pair of house shoes and a box of powder.”
From the record:
“Anyway, my agreement when I went back to him was that I had lost all respect for him. ‘I don’t think I can live with you as a wife because of what you have done.’ I said, ‘I have not got a cent, I have got no place to go, I’ll come back and I will try but I will be watching every move you make and you know that I will.’ I said, ‘You are to stay away from Beverly, you are to treat Clark [a son] right and I will do my part, I will make you a wife if you will let me. ’ He said, ‘I know we have never been man and wife but we will this time, I’ll do anything for you if you will come back,’ so I went back.
#**
“He immediately demanded I start sleeping with him and I told him I couldn’t, every time I look at you, I know you know that I know what you have done. I said, ‘when I look at you I think of that and I can’t respect you and I can’t respect you and I can’t sleep with you until I respect you. You’ve got to take me back on them terms’, and he said he would. I said that maybe later on I could grow to feel like I did at first, that I would want you as a husband. He said, ‘I will stay with you under any circumstances.’”
Thomas v. Thomas, 27 Okla. 784, 109 Pac. 825.
It is not clear from this language whether the court meant that Lockley changed the title because he thought his wife intended to continue to live with him, or whether the language has reference to Mrs. Lockley. If the latter is true, it is obvious from the findings in the case that the sentence “That she did intend” was a mistake and meant “that she did not intend”.
One rather puzzling fact was not developed. The evidence reflects that Mr. Beegle, the former husband of appellant, stayed in the same house with Mrs. Lockley overnight (in the home of appellant’s sister), though not in the same room, but there is no evidence of any illicit conduct. There is no explanation of why Mr. Beegle was in Arkansas. The record indicates that this occurred after appellant left the Lockley home for the second time. | [
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George Rose Smith, Justice.
This is a Rule 1 petition by which the appellant Byler seeks to withdraw his plea of guilty to a charge of second-degree murder, on the grounds that he did not validly waive the assistance of counsel and did not intelligently and voluntarily enter the plea of guilty. The Honorable John L. Anderson, circuit judge, accepted the plea after a brief hearing on April 4, 1973. The Honorable Elmo Taylor, circuit judge, denied Byier’s Rule 1 petition after a more extensive hearing on February 2, 1974. This appeal is from the latter order.
We defer for the moment a statement of the facts now before us, because this case can best be understood in the light of fairly recent developments in this area of the criminal law.
A convenient starting point is Rule 11 of the Federal Rules of Criminal Procedure, governing federal district courts. That Rule, as revised in 1966, reads:
A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of noto contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea. [Federal Rules of Criminal Procedure, Rule 11.]
In McCarthy v. United States, 394 U.S. 459 (1969), the district court failed to observe the Rule’s directive that the judge personally inquire whether the defendant understands the nature of the charge against him and is aware of the consequences of his plea. The Supreme Court held that the omis sion entitled the defendant to an opportunity to plead anew. A month later the court refused to make the McCarthy rule retroactive. Halliday v. United States, 394 U.S. 831 (1969).
Another month later, in Boykin v. Alabama, 395 U.S. 238 (1969), two dissenting judges asserted that the Boykin majority had in effect made Federal Rule 11 binding upon the States as a matter of constitutional law. Although we do not construe the Boykin majority opinion to be that far-reaching, the court unquestionably held that State trial judges must determine whether pleas of guilty are intelligently and voluntarily made and, further, that such a determination cannot be presumed from a silent record.
The clearest and most detailed discussion of recommended procedures is to be found in the American Bar Association’s “Standards Relating to Pleas of Guilty” (1968). In quoting those sections of the Standards that are especially applicable to the case at bar we are not to be understood as making them inflexibly binding, to the letter, upon the trial courts of this State, either retrospectively or prospectively. The draftsmen of the Standards say themselves: “The responsibility of the judge varies, depending upon such circumstances as the complexity and comprehensibility of the indictment and the defendant’s intelligence, education, age, and experience.” Commentary, Section 1.4(a). Nevertheless, we must observe that compliance with the Standards will go far toward achieving the twofold purpose of (1) assuring justice both to the accused and to the public and (2) minimizing the dreary necessity of having to reconsider in postconviction proceedings points that should have been set at rest when the plea of guilty was accepted.
We quote those parts of Section 1 of the Standards that are particularly pertinent to this case:
1.4 Defendant to be advised by court.
The court should not accept a plea of guilty or nolo con-tendere from a defendant without first addressing the defendant personally and
(a) determining that he understands the nature of the charge;
(b) informing him that by his plea of guilty or nolo con-tendere he waives his right to trial by jury; and
(c) informing him:
(i) of the maximum possible sentence on the charge, including that possible from consecutive sentences;
(ii) of the mandatory minimum sentence, if any, on the charge; and
(iii) when the offense charged is one for which a different or additional punishment is authorized by reason of the fact that the defendant has previously been convicted of an offense, that this fact may be established after his plea in the present action if he has been previously convicted, thereby subjecting him to such different or additional punishment.
1.5 Determining voluntariness of plea.
The court should not accept a plea of guilty or nolo con-tendere without first determining that the plea is voluntary. By inquiry of the prosecuting attorney and defense counsel, the court should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what agreement has been reached. If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court. The court should then address the defendant personally and determine whether any other promises or any force or threats were used to obtain the plea.
1.6 Determing accuracy of plea.
Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as may satisfy it that there is a factual basis for the plea.
1.7 Record of proceedings.
A verbatim record of the proceedings at which the defendant enters a plea of guilty or nolo contendere should be made and preserved. The record should include (i) the court’s advice to the defendant (as required in section 1.4), (ii) the inquiry into the voluntariness of the plea (as required in section 1.5), and (iii) the inquiry into the accuracy of the plea (as required in section 1.6).
We turn now to the facts in the case at hand. Byler, a middle-aged man, had only a first-grade education. He cannot read or write. Jimmy Zomant, the victim of the asserted homicide, died of a gunshot wound on March 31, 1973. On April 2 Byler was charged by information with second-degree murder. On April 4 Byler appeared before the court without counsel and pleaded guilty. The hearing, transcribed upon less than three typewritten pages, could hardly have taken more than five minutes. Before pleading guilty Byler was asked nine questions, all of which he answered either “Yes, sir,” or “No, sir.” There was no testimony.
Seven of the nine questions had to do with the appointment of an attorney for Byler and are not. now directly pertinent. By his responses Byler acknowledged that he did not have an attorney, that he understood that the court would appoint one for him, that he did not want an attorney, and that he waived his right to have one.
The other two questions, the first being dual in form, were the only inquiries touching upon whether Byler’s plea of guilty was intelligently and voluntarily made. Both questions were put by the prosecuting attorney, not by the court:
Mr. Raff: Mr. Byler, do you understand the elements of the charge against you? Do you understand what your defenses would be?
Mr. Byler: Yes, sir.
# }jc # # #
Mr. Raff: You also understand, sir, that you are waiving your constitutional right to a trial by jury to determine the issues that are involved and the charges that have been brought against you? You understand that, too, don’t you, sir?
Mr. Byler: Yes, sir.
Byler than pleaded guilty. The court, upon the prosecuting attorney’s recommendation, sentenced Byler to imprisonment for ten years. No statement or explanation of the minimum or maximum penalty had been made.
It is apparent that the court’s procedure in accepting Byler’s plea of guilty did not meet the minimum requirements laid down in Boykin v. Alabama, supra, much less the more detailed safeguards contemplated by the quoted Standards. The key question is whether the deficiencies were supplied by the record made at the second hearing.
At that hearing Byler, testifying in his own behalf, asserted on direct examination that he could not read or write, that he had been knocked in the head shortly before the earlier hearing and didn’t know what he was saying, that he had been arrested for a felony in 1946, that he did not know the lesser included offense (s) in the charge of second-degree murder, that he did not understand the law of self-defense, and that before entering the plea of guilty he had not had an opportunity to discuss the charge with an attorney.
On cross-examination Byler admitted that he was convicted of first-degree murder in 1946. (That conviction was reversed and the cause remanded for a new trial. Byler v. State, 210 Ark. 790, 197 S.W. 2d 748 [1946]. The present record is silent as to the further proceedings in that case.) Byler acknowledged that he had a lawyer in the earlier case and that he understood, in the cross-examiner’s words, “what the elements of murder were, what you were accused of, and what that meant . . .?” Byler’s answer: “Yes, sir.”
The court then questioned Byler, who supplied a few details about the 1946 trial, such as the surnames of his lawyer and of the prosecuting attorney. The court then asked about the present charge of second-degree murder. Byler was evasive, saying that he had been knocked in the head “at the party when it happened” and that he had been drinking; but the fact remains that the record contains no admission by Byler, other than his plea of guilty, that he actually committed the crime with which he was charged. See section 1.6 of the quoted Standards.
At the close of the hearing Judge Taylor stated his findings that Byler, though illiterate, was not ignorant and was smarter than he pretended to be; that Byler knew what he was doing when he waived his right to an attorney; and that his statement about having been knocked in the head (which was disputed by the jailor) was untrue. Those findings are amply supported by the proof.
The difficulty is that the trial court made no finding whatever upon the second point raised by Byler’s Rule 1 petition and argued by his attorney at the hearing; that is, that Byler’s plea of guilty was not made intelligently and voluntarily. The omission is readily understandable, for the record falls fatally short of meeting even the minimum showing required by the Boykin decision. Byler actually received no information at all at the first hearing. No one explained to him such essential but difficult legal matters as the definition of second-degree murder, the defenses to that charge, or its lesser included offenses. There is nothing even to hint that he was aware of the minimum or maximum penalty for the offense charged. No facts were brought out either with regard to the asserted homicide or with regard to Byler’s part in it.
In this court the State argues simply that Byler, even though illiterate, must have known all those things, because he was found guilty of first-degree murder 27 years before the second homicide took place. Upon the meager record before us such a conclusion could be reached only by means of speculation and guesswork. No such finding was made by the trial court, undoubtedly because the State adduced no proof to support such a conclusion. In the light either of the Boykin ruling or of the cited Standards we can find no basis for denying the appellant’s Rule 1 petition.
The judgment is reversed and the cause remanded with directions that the appellant be permitted to withdraw his guilty plea, with such further proceedings as may be appropriate.
Harris, C. J., and Byrd, J., dissent. | [
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Frank Holt, Justice.
A jury found appellant guilty of robbery and also that the robbery was committed with the use of a firearm. On appeal, appellant only challenges the validity of the 15 year sentence which was imposed by the court for the use of a firearm in the commission of the robbery. Appellant first asserts, through present court appointed counsel, there is no substantial evidence to support the jury’s finding that a firearm was used in the commission of the felony.
On appellate review, in determining the sufficiency of the evidence, it is well established that we ascertain that evidence which is most favorable to the appellee and affirm if any substantial evidence exists. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974). In the case at bar, the 90 year old robbery victim testified that appellant and one of his two companions forcibly took his billfold and a small gun from his back pocket. He identified appellant, the only one of the trio on trial, as holding the pistol on him. The victim further testified that he was hit in the head with the pistol or something that was “iron.” Certainly, this evidence alone amply supports the jury’s finding that appellant employed a firearm as a means of committing the robbery.
Appellant next contends that the trial court erred in imposing a sentence for the use of a firearm during the commission of a felony instead of allowing the jury to set the sentence. The jury returned a verdict of guilty of robbery and fixed appellant’s punishment at 21 years imprisonment. At the same time, in response to an interrogatory, the jury affirmatively found that the robbery was committed with the use of a firearm. Thereupon, the court assessed an additional 15 year sentence which is authorized by Ark. Stat. Ann. § 43-2336 (Supp. 1973). The sentence was made consecutive which is required by § 43-2337. Appellant correctly argues that any punishment for violation of this statute should be set by the jury and not by the court and is contrary to our decisions. Johnson v. State 249 Ark. 208, 458 S.W.2d 409 (1970); Redding v. State, 254 Ark. 317, 493 S.W. 2d 116 (1973); and Cotton v. State, 256 Ark. 527, 508 S.W. 2d 738 (1974). However, we find no merit in this contention since no objection was made to the court’s action. Consequently, the issue cannot now be raised for the first time on appeal. Ark. Stat. Ann. § 43-2725.1 (Supp. 1973); Ford v. State, 253 Ark. 5, 484 S.W. 2d 90 (1972); Robinson v. State, 256 Ark. 675, 509 S.W.2d 808 (1974); and Williams v. State, supra.
Appellant next contends that the information did not properly charge him with the use of a firearm in the commission of a felony in violation of § 43-2336, supra. Therefore, the court erred in submitting that issue to the jury. The robbery information, in pertinent part, reads:
The said defendant on the 12th day of January, 1974, in Jefferson County, Arkansas, did then and there wilfully, unlawfully, feloniously, violently and by force and in-- timidation, armed with a pistol, take approximately $125.00 in money, the property of David Montague.(Emphasis ours.)
In Johnson v. State, supra, we found two procedural defects, one of these being that “the use of a firearm was not alleged in the information.” In Redding v. State, supra, the opinion recites that the defendant was charged with the “crime of robbery with the use of a firearm.” There we said that the procedural defect of not alleging in that information the use of a firearm did not exist. In the case at bar, even though the use of a firearm was not alleged as a separate count or paragraph, a casual reading of the information reflects that it unambiguously asserts and gives notice to appellant that the robbery was committed by the use of a firearm. By Initiated Act #3 of 1936, Ark. Stat. Ann. § 43-1006, § 43-1008 (Repl. 1964), which relaxed the common law technical pleading requirements, it is only necessary to name the offense and the defendant in charging an offense and it is unnecessary to state the acts constituting the offense “unless the offense cannot be charged without doing so.” Henderson v. State, 255 Ark. 870, 503 S.W.2d 889 (1974); and Estes v. State, 246 Ark. 1145, 442 S.W.2d 221 (1969). See also Thompson v. State, 205 Ark. 1040, 172 S.W.2d 234 (1943). Here the information was certain as to the name of the court, the county in which the alleged offense was committed, the defendant’s name and the name of the offense: i.e., robbery. It was unnecessary to allege the acts constituting the offense of robbery. However, the information stated with certainty that the robbery was committed with the use of a firearm. We hold the information sufficient. Furthermore, the record here reveals no objection to the information or the manner of the submission of the issue, the use of a firearm, to the jury. As indicated previously, the issue cannot be raised for the first time on appeal.
Moreover, if appellant’s counsel construed the words “armed with a pistol” in the information as being descriptive rather than constituting a possible enhancement of sentence, he certainly was apprised sufficiently when the court submitted the interrogatory to the jury as to whether the alleged offense was committed by the use of a firearm. Although we hold the information sufficient, the better practice would be that the allegation of the use of a firearm be worded with greater specificity to obviate the argument in a case such as the one at bar.
Appellant finally asserts for reversal he was denied effective assistance of counsel because appointed counsel failed to object to the procedure used in charging (the information) and imposing the sentence for the use of a firearm in the commission of a felony. As previously discussed, we are of the view the information sufficiently informed the appellant of the charge of using a firearm, which by statute results in an enhancement of a sentence upon a robbery conviction. § 43-2336, supra. As to the court’s imposition of the additional sentence following the jury’s finding, in answer to an interrogatory, that a firearm was used by the appellant, he correctly asserts, as previously discussed, that this did not comport with the procedure prescribed in Redding v. State, supra, and Cotton v. State, supra. However, as appellant acknowledges, it is necessary to object to the court’s action and when no objection is made, as here, the issue cannot be raised for the first time on appeal. We recognize that our federal constitution mandates that the defendant have the benefit of effective assistance of counsel. Franklin and Reid v. State, 251 Ark. 223, 471 S.W.2d 760 (1971). However, we have held that the defendant shoulders the burden of demonstrating that his counsel’s alleged incompetence constituted prejudicial error and, further, the mere showing of “errors, omissions or mistakes, improvident strategy, or bad tactics” is not alone sufficient. Counsel is accorded a broad latitude in exercising his judgment for a client’s defense. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973); Clark v. State, 255 Ark. 13, 498 S.W.2d 657 (1973).
In Leasure v. State, supra, we said:
[W]e will presume, in the absence of a contrary showing, that: a duly licensed, appointed attorney is competent; a charge of inadequate representation can prevail only if the acts or omissions of an accused’s attorney result in making the proceedings a farce and a mockery of justice, shocking the conscience of the court, or the representation is so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of and correct it.
See also Credit v. State, 247 Ark. 424, 445 S.W.2d 718 (1969); and Poole v. United States, 438 F.2d 325 (8th Cir. 1971); and Slawek v. United States, 413 F.2d 957 (8th Cir. 1969). The strategy and tactics used during a trial involve the elements of trial counsel’s discretion and judgment, which very well might be such that skilled and experienced counsel would honestly disagree. Johnson v. State, supra.
In the case at bar, we cannot say that the appellant, through his counsel, could have been unaware of the possible enhancement of his sentence by the use of a firearm which was alleged in the information. Neither can we say confidently that the failure of appellant’s counsel to object to the additional punishment for the use of the firearm demonstrated a farce and a mockery of justice. It could very well be, inasmuch as the jury had imposed the maximum sentence for robbery, that the strategy and judgment of appellant’s counsel was dictated by the belief the trial court would, most likely, be more lenient in the imposition of a sentence for the use of a firearm than would the jury. Certainly, it is not for us to say this was improvident strategy.
Appellant urges us to abandon our standard or test of competence of counsel and adopt the “reasonably competent” attorney standard which a few other jurisdictions, the cases from which are cited, follow. This we decline to do. If we should dc so, we think it would result in disrupting the established function of a trial judge. The lawyer’s part in a trial is adversary advocacy. The part of the judge is impartiality to insure fairness and delineate the law. “It is no part of the judge’s function to evaluate the relative efficacy of trial tactics” which “would destroy the concept of an impartial judge, a concept basic to our system. ” Mitchell v. United States, 104 U.S. App. D.C. 57, 259 F.2d 787 (1957), cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958). There it was recognized the supervision by a judge of trial counsel’s judgment upon tactical problems could very well invade the accused’s constitutional right to the assistance of counsel. To the same effect is Leasure v. State, supra. Suffice it to say, however, that under either standard, in the case at bar, we cannot say that appellant was denied effective assistance of counsel.
Affirmed.
Smith, Brown, and Byrd, JJ., concur. | [
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John A. Fogleman, Justice.
Benny West was charged with first degree murder and held without bail from November 7, 1970 to April 1972, at which time bail was set at $50,000. Bail was reduced to $25,000 in July 1972, and on August 3, 1972, he was released on bail. A jury found him guilty of second degree murder on June 5, 1973, and he was sentenced to 21 years. O January 14, 1974, he filed a motion for modification of his sentence by crediting him with his pretrial confinement. On November 4, 1974, the circuit judge granted his motion by reducing the sentence in the judgment entered to a sentence of 19 years, 3 months and 5 days, after finding that pretrial incarceration amounted to 1 year, 8 months and 25 days. This was not a suspension of part of the sentence, as appellant suggests.
Appellant contends that this action was not in accordance with Ark. Stat. Ann. § 43-2813 (Supp. 1973). We do not agree.
It is appellant’s contention that the court should have directed that appellant’s sentence start on a date 1 year, 8 months and 25 days prior to the date of the jury verdict. We are unable to see how this result is dictated by § 43-2813. That section reads:
Computation of Sentence. Time served shall be deemed to begin on the day sentence is imposed, not on the day a prisoner is received by the Department of Correction and shall continue only during the time or times in which a prisoner is actually confined in a county jail or other local place of lawful confinement or while under the custody and supervision of the Department of Correction; provided, however, that the sentencing judge may in his discretion direct, when he imposes sentence, that time already served by the defendant in jail or other place of detention, shall be credited against the sentence.
It seems to us that the trial judge’s action is exactly in accord with the statutes. Nothing whatever in the language of the statute directs or permits the judge to make the sentence effective retroactively, and we are aware of nothing that would make the statute or its application by the trial judge in this case run afoul of “equal protection” guarantees. Appellant cited no authority for his argument that the procedure deprives him of Fourteenth Amendment equal protection.
He has presented an ingenious argument that he is discriminated against by reason of the fact that under Ark. Stat. Ann. § 43-2807 (c) (Supp. 1973) one who was sentenced to 21 years who had not been incarcerated prior to trial would be eligible for parole after seven years, while he would have served 6 years, 5 months and 2 days in the Department of Correction, and 1 year, 8 months and 25 days in pretrial jail confinement, or a total of 8 years, 1 month and 27 days. Assuming that each started receiving maximum “good time” credit from the beginning of his sentence, the difference, according to appellant, would be 3 years and 6 months, as against 3 years, 2 months and 16 days plus his pretrial jail time for a total of 4 years, 11 months and 11 days. The disparity in “good time” credit clearly does not deny Fourteenth Amendment equal protection to appellant. McGinnis v. Royster, 410 U.S. 263, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1973).
The rationale of Royster is also applicable to the disparity in minimum parole eligibility time. In McGinnis the court passed on a New York statute which, in effect, denied “good time” credit for presentence incarceration in county jails. Under the statute “good time” was awarded for good behavior and efficient performance of duties during incarceration. Minimum parole date was calculated by subtracting the greatest amount of good time that could be earned from the minimum sentence of an indeterminate term, and the statutory release date, by subtracting the greatest amount of good time that could be earned from the maximum sentence of an indeterminate term. The statute came into play in McGinnis because it explicitly forbade any “good time” credit for time spent in jail in calculating the minimum parole dates. If the appellees in McGinnis had been entitled to “good time” credit for their presentence confinement they would have been entitled to appear before the parole board at least three months earlier than they would otherwise. Insofar as the end result is concerned, the problem here and the principle involved are essentially the same. The mere fact that the court acted in strict compliance with a statute that makes no reference to “good time” credit, and McGinnis involved a statute that made the distinction makes no real difference. The court in McGinnis held there was no denial of equal protection because the distinction, having arisen in the course of the state’s sensitive and difficult effort to encourage for its prisoners constructive future citizenship while avoiding the danger of releasing them prematurely upon society, called for classifications to meet a practical problem of government, which need only be upon a rational basis, even though they may actually result in rough accommodations. The important question is whether the challenged distinction rationally furthers some legitimate, articulated state purpose. The legitimate purpose in McGinnis was found in the different purposes, usages and facilities in state prisons and county jails. On the one hand there is, whatever deficiencies there may be, a rehabilitative program and objective in state prisons, but none in county jails, which are designed as places of detention only. See Ark. Stat. Ann. § 46-100, 103, 107, 116, 117 (Supp. 1973). There are laws and regulations which require the state to evaluate an inmate’s progress toward rehabilitation in a state prison by observation and evaluation of conduct and performance in determining parole eligibility, but none in county jails. See Ark. Stat. Ann. §§ 43-2806 •— 9,46-103, 116, 117, 120, 120.1, 120.2, 120.3. And, as pointed out by Mr. Justice Powell in speaking for the U.S. Supreme Court in McGinnis, it would hardly be appropriate to undertake rehabilitation of one held in pretrial detention who was still cloaked with the presumption of innocence. These differences furnish a rational justification both there and here for the distinction made in promoting a legitimate state purpose to afford adequate observation of an inmate’s conduct and rehabilitative progress before he is considered for parole.
We note that, in entering its order, the trial court appended a direction that the Arkansas Board of Corrections give no credit to appellant for the time of pretrial confinement in determining parole eligibility. This portion of the order is not attacked on appeal, probably because the court’s action without this direction would likely produce the same result. Suffice it to say that we do not think the court had the discretion and power to direct the board’s action in this respect under existing law, even though it may once have had. See Ark. Stat. Ann. § 43-2807 (Supp. 1973). We consider it only to constitute a recognition by that court of the underlying reasons for the distinction of which appellant is complaining. Be that as it may, the significant questions before us are whether the court followed the dictates of the statute covering “jail time” credit, whether he abused his discretion in doing so, and whether the statute, as written or applied, violates equal protection requirements. Our answer is in the negative to all except the first, so the judgment is affirmed. | [
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Lyle Brown, Justice.
Appellant Downtowner Cor poration instituted this suit to require Gordon Scott to account for profits from the operation of the Red Apple Inn during a period from June 1, 1972, through November 7, 1972. The critical issue in the case is which party is entitled to the profits made during the stated period.
Downtowner Corporation owned a large land development at Eden Isle, Arkansas, which included Red Apple Inn, a resort hotel, and related recreational enterprises. On March 1, 1972, Downtowner gave Block Investment Company an option to purchase the entire Eden Isle properties. Negotiations toward that end began to go forward and in late May it appeared that the sale was near closing.
Scott, manager of the Red Apple Inn, learned of those negotiations in March 1972. Since Block’s interest was mainly in the land development, appellee reached a separate agreement with Block to purchase Red Apple Inn if and when it was acquired from Downtowner. The Scott-Block agreement was expressed in a written offer dated May 4 and accepted by Block on May 8. It was essential to Scott that he have the benefit of the profitable summer months to offset the loss which would expectedly occur in the winter months. The contract contained a provision to that effect. Thereafter, various officers of Downtowner, at different times, became aware of the Scott-Block agreement.
On May 31 Downtowner sent Loel Holder, an employee, to Red Apple Inn to conduct an inventory and accounting of receivables and cash on hand. Afterwards Holder signed a memorandum prepared by Scott’s attorney and dated May 31, to which was attached a typed schedule reflecting a summary of the audit and inventory. That document in most part contained language identical to Scott’s May 4th contract with Block, including the following:
Scott to assume all obligations incurred after June 1, 1972, except depreciation and taxes or other assessments and Scott to have the benefit of all income accrued and earned during that portion of time between June 1, 1972, and closing date.
The purpose of Holder’s visit, the scope of his authority,
and the effect of the May 31st memorandum are in dispute. Downtowner contends Holder was sent to establish certain values as of May 31 so that at its closing with Block the sale of Red Apple Inn would be retroactive to that date. Down-towner contends Holder was a part-time accountant who had no authority to bind Downtowner to a contract. Scott contends Holder was sent to turn over the operation of the Inn to him, Scott, pursuant to his contract with Block. Scott contends he also had assurance from a Downtowner official, Mr. Perkins, that Downtowner would sell the Inn to Scott if the Block-Downtowner deal was not consumnated.
On July 12 Holder again went to Red Apple Inn and effected a “reconciliation of funds”, in essence giving Down-towner credit for funds collected prior to June 1 but earned thereafter, such as advance deposits. The balance owing Downtowner was $13,605.26 and Scott gave Holder a check in that amount.
From June 1 until November 7 Scott operated the Inn independent of any real control by Downtowner, although some objections were voiced to Scott in June by Fred Eydt, Vice President of Operations for Downtowner. During that period Scott retained the income, paid the daily expenses, and placed the receipts in accounts he had set up under his sole control. Downtowner continued to pay taxes, insurance, and mortgage payments totalling over $59,000.
During that summer the sale from Downtowner to Block began to fall apart and in early September negotiations finally were terminated. Scott then submitted Downtowner a written offer which was substantially the same contract Scott had made with Block. Following a refusal of that offer there were further negotiations and Scott and his attorney thought a meeting of the minds had been reached. On November 7 Downtowner officials went to Eden Isle and assumed control of the Inn from Scott and put in a new manager. An inventory was taken at that time to establish cash on hand and accounts receivable which Downtowner retained. Scott retained the profits and all records of his operation from the period June 1 through November 7. In December Downtowner sent Scott a number of bills incurred during his operation and he paid them.
In January 1973 Downtowner brought this action against Scott for an accounting of the profits of his operation. Scott answered and counterclaimed, seeking recovery for certain capital improvements and for receivables collected and retained by Downtowner which had been earned prior to November 7. The chancellor found that a contract existed between the parties either expressly, by ratification, or by es-toppel, whereby Sbott would operate the Inn, not as an employee or agent of Downtowner, but as an independent operator under which Scott would retain what he made or assume any loss incurred. The petition for accounting was consequently denied. As to Scott’s counterclaim, the chancellor found that if Scott was entitled to any recovery thereunder it should be retained by Downtowner as rent.
We cannot agree with the chancellor’s conclusions while at the same time conceding that the suit presented a difficult and novel question for which no parallel can be found in any prior decision. We find there was in fact an agreement based on the sincere belief of all parties that a sale to Scott would be consummated and that such sale would be retroactive to June 1. That agreement allowed Scott to get the advantage of the summer business; however, the retention of those profits was conditioned on the closing of a sale to Scott.
In the first place the testimony of Scott warrants such a conclusion. The chancellor propounded this question to Scott: “Were you working on the theory all the time when you were running this business that you were going to buy the business?” Scott answered in the affirmative. At another point in his testimony Scott testified: “I assumed I would end up owning the property involved”. Scott also conceded there was no discussion as to who would get the net profits during his period of operation. He said he was standing on the written documents.
In further support of our conclusion we examine the written instruments introduced into evidence. The first one is the offer to purchase executed by Scott and addressed to Block. It provided that in the event the sale was not consummated by June 1, the operation and management would be turned over to Scott on that date and he would retain the profits accruing between June 1 and closing date. Then, under date of May 31 Scott executed a memorandum to Down-towner, to Block, and to the banks which proposed to finance Scott. It was in effect an amendment to the written offer of May 4. It provided, among other things, that the operation and management of the Inn would be transferred to Scott on June 1 and that he would thereafter retain all profits until closing date. Again, under date of September 12, 1972, after the proposed sale to Block had collapsed, Scott made a written offer to Downtowner. Therein it was stated that Scott would retain all income accrued and earned from June 1, 1972, until closing date. We think it abundantly clear there had to be a closing of the sale to Scott before he was unconditionally entitled to retain the summer profits.
Appellant Scott finds himself in a position which is untenable, namely, that he was entitled to the profits from the operation, come what may, and regardless of whether there was ever a closing of any sale of the property to him. Again, the agreement to buy and sell was not open-ended; it was based on a contingency of a closing.
The principle of estoppel is of no benefit to Scott; that is because we find no estoppel. There can be no estoppel because Scott did not show that he relied on representations, inaction, or silence of Downtowner to his detriment. Bowlin v. Keifer, 246 Ark. 693, 440 S.W. 2d 232 (1969). As to representations, Scott concedes that the only representations made about the profits were contained in the recited contracts. As to inaction or silence there was no occasion for Downtowner to speak out about the profits until the sale to Scott collapsed. Furthermore, there is no evidence in the record that Scott suffered any detriment.
Nor can we find any evidence that Downtowner committed any act of ratification whereby Scott was vested with the sole right to the profits during his period of operation. It is undisputed that if a closing had been effected then Scott was entitled to the profits; therefore, there was no cause for Downtowner to demand the profits until the sale became an impossibility.
The chancellor laid stress on the memorandum of May 31 from Scott to Downtowner and seems to conclude that since the instrument was approved for Downtowner by Holder, it constituted a contract between the parties. If it be conceded that the instrument did form a contract between the parties, we simply cannot interpret it to mean that Scott was entitled to the profits of a sale which was never consummated.
The cause is remanded with directions to conduct an accounting of the operation from June 1 to November 7 and to enter judgment accordingly. In that connection it is noted Downtowner appears to concede in its brief that in an accounting Scott should be credited with his salary “and possibly an extra amount should he be able to establish services over and above those he had previously exerted in operation of the Inn as well as credit for expenditures or improvements of a capital nature made in good faith. ...”
Reversed and remanded.
BYRDj., dissents. | [
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Carleton Harris, Chief Justice.
This action is based on a claim under a policy of insurance covering a Caterpillar bulldozer. W. D. Frisby, appellee herein, was issued a policy of insurance by New Hampshire Insurance Company, appellant herein, granting certain coverage in the amount of $7,000, coverage including “collison of the equipment with any other vehicle or object, upset, overturn (excepting as may be caused by or resulting from landslide)”, such policy being in effect at all times hereinafter mentioned. On October 1, 1973, George Black, Jr., an employee of appellee, was operating the said bulldozer at a farm a few miles from El Dorado, and a little after 9:00 A.M. Black, backing the dozer up near the edge of a field in high grass for the purpose of getting in front of some brush, backed over and struck a valve or gauge which protruded above the ground 10 to 14 inches, and which was attached by a connecting pipe to a 20 inch pressurized transmission line, containing liquid propane. This caused a rupture permitting the gas to escape. A white cloud immediately spurted upward, and covered the bulldozer. Black cut off the motor, ran to the telephone and called Frisby. Frisby went to the scene and found the dozer frozen, “covered with ice and the gas was still going up.” The Caterpillar was covered with ice and was frozen to the ground. According to Frisby:
“We immediately moved another dozer of ours to the scene and began trying to pull it off away from the place where it was frozen to the ground and, of course, the tracks were just solid ice. The tracks wouldn’t move and there wasn’t any way to move it. *** Well, we have a D-5 caterpillar and we was trying to pull it with a winch on it, also Texas Eastern had two winch trucks there. We had those hooked to it. *** We called a real big winch truck in and with our dozer and these other trucks we managed to break it loose and it didn’t roll. It just skidded, just slid on the ground, and we got it back up near the road.”
The dozer did not completely thaw until the third day, and according to appellee, the engine block was “busted in several spots”, the radiator completely frozen and cracked, and other damage, the cost of repairs exceeding coverage under the policy. Appellant denied liability and Frisby instituted suit for $6,750.00, together with 12% penalty, reasonable attorney’s fee, interest and costs. The company answered asserting that the loss was not directly caused by collision with an object, and therefore not covered within the terms and provisions of the policy. At the close of appellee’s case, appellant resting without the introduction of any evidence, the company moved for a directed verdict which was denied and the jury returned a verdict for the full amount sought. From the judgment entered in the amount of $6,-750.00, together with 12% penalty in the amount of $810.00, $1,500.00 attorney’s fee, making a total judgment of $9,-060.00, together with costs, appellant brings this appeal. For reversal, it is simply asserted that damage by freezing was not loss or damage directly caused by collision with an object.
Appellant relies upon Mercury Insurance Company v. McClellan, 216 Ark. 410, 225 S.W. 2d 931, and Habaz v. Employers’ Fire Insurance Company, 243 F. 2d 784. We do not find either case to be pertinent to the issue at bar. In the first case (which was actually a consolidation of two cases), a truck was being repaired in a garage in Warren, when a devastating tornado struck the city, destroying the garage building and substantially damaging the truck. In the other suit which had been consolidated for trial, a parked automobile was picked up by the tornado, rolled over several times, blown into the top of a tree, and completely destroyed. No coverage for loss arising from a windstorm or tornado was provided in the policy, and this court held that since the tornado was the efficient and proximate cause of the damage, and there being no windstorm coverage, there was no liability on the part of the company. The second case involved a cloudburst in Hot Springs, and subsequent flooding conditions. The owner of a shop on Central Avenue suffered quite a bit of damage to his merchandise from the water. He held a policy of insurance with an extended coverage endorsement, the endorsement providing “Loss by aircraft or by vehicles shall include only direct loss resulting from actual physical contact of an aircraft or a vehicle with the property covered hereunder or with the building containing the property covered hereunder ***.” The opinion cites the plaintiff’s (appellant’s) contention as follows:
“The pleadings, admissions, answers to interrogatories and appellant’s pre-trial deposition established that as the time of the flood an automobile was propelled by the force of the flood waters onto the sidewalk in front of appellant’s place of business in such a manner that it diverted flood waters against the door of appellant’s shop, that the door was thus caused to break down, letting water into the shop with the resultant damage. Flood water entered some but not all of the other buildings on Central Avenue in the vicinity of the appellant’s shop. The automobile that lodged in front of appellant’s shop struck the front of the building, causing a slight crack in one of the small white tiles below one front show window but no water entered the building on that account. All of the water entered through the door opening, some little distance from the automobile itself.”
The court held that the striking of the building by the automobile was not the cause of the damage; rather, the damage was occasioned by the flood water, which was the proximate cause of the whole occurrence.
These situations are not present in the litigation now before us. Here, the initiating cause of the damage to the tractor was the striking of the valve, this collision with the valve, in itself, setting in motion the events, without the intervention of any independent force, which damaged the bulldozer; the damage would not have occurred except for the bulldozer breaking the valve-gauge. Certainly, the striking of the valve by the bulldozer was a collision with an “object” and the damage sustained was, as stated in the policy, “directly caused by the risks and perils insured against.”
In Blashfield Automobile Law and Practice, Volume 7, § 312.4, p. 487, it is stated:
“An ‘object’ may be defined as any tangible thing, visible or capable of discernment by the senses, which offers an impediment or resistance to another object.”
In Washington Fire & Marine Insurance Co. v. Ryburn, 228 Ark. 930, 311 S.W. 2d 302, we held that damages to a truck which slipped off the highway and plunged into a ditch filled with water were caused by the collision of the truck “with another object”. “Directly caused” has been construed to be fairly synonymous with the term “proximately caused.” Gulfport Portland Cement Co. v. Globe Indemnity Co., 149 F. 2d 196. We have defined “proximate cause” as “A cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.” See AMI 2d Ed., § 501, p. 39.
In accordance with what has been said, we hold that the damage to the bulldozer was occasioned by the collision with an object, and the loss is thus covered under the provision of the policy, heretofore referred to. Appellee is awarded an additional attorney’s fee in the amount of $750.00 for services rendered in this court.
Affirmed.
The liquid propane froze when exposed to the atmosphere.
There was a $250.00 deductible. | [
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Conley Byrd, Justice.
The only issue here is the right of the mortgagors, appellants James E. Bentley, et ux, to redeem from a foreclosure decree sale to a third party at any time prior to an order of confirmation of the sale. The particular foreclosure decree here involved gave the mortgagors ten days from the date of the foreclosure decree to redeem the property — after the expiration of the ten day period the commissioner in chancery was directed to advertise and sell the property.
On the date of sale appellees Thomas W. Parker and Nell Parker, his wife and Jack B. Carter and Martha G. Carter, his wife were the successful bidders in the amount of $24,500.00. The total judgment of Capital Savings & Loan Association was for only $21,713.91. Before the sgle was submitted to the court for confirmation, the mortgagors tendered the total amount of the judgment and court costs into the registry of the court and asked to redeem the property. The trial court reluctantly denied the redemption and hence this appeal. We agree with the trial court.
In Martin v. Ward, 60 Ark. 510, 30 S.W. 1041 (1895), we stated the matter in this language:
“The only question in this case is whether a right of redemption remains to the mortgagor of real estate after a decree of foreclosure and a sale of the mortgaged property thereunder. In the absence of a statute giving this right to the mortgagor, his equity of redemption is barred by the decree and sale. The object of the proceeding to foreclose is to cut off the equity of redemption which exists in the mortgagor, and a sale under a valid decree of foreclosure must have this effect unless the legislature has extended the right of the mortgagor, so that he may redeem after sale.”
We there held that the Act of March 17, 1879, did not extend the right of redemption to a mortgagor under a foreclosure decree. It was there pointed out, however, that a “...court in its decree may, and usually does, allow a reasonable time for the mortgagor to pay the amount adjudged against him and redeem the property.”
The cases of Pope v. Wylds, 167 Ark. 40, 266 S.W. 458 (1924) and Jermany v. Hartsell, 214 Ark. 407, 216 S.W. 2d 381 (1949), involved cases in which the foreclosure decree had provided that the redemption could be made at any time before confirmation. Of course such cases are not controlling under the decree here which allowed only ten days for redemption after the foreclosure decree.
Obviously the time for redemption must be left to the sound discretion of the trial court. If the redemption is cut off before sale date, it tends to give credence to judicial sales and to prevent collusion between the mortgagors and unsuccessful bidders at the sale who have second thoughts on the value of the property. However, if the redemption is permitted at any time before confirmation of the sale, then there may be some lack of incentive for competitive bidding at the sale.
Affirmed. | [
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CaRLETON HARRIS, Chief Justice.
This litigation relates to Ark. Stat. Ann. § 75-913 (Repl. 1957), the guest liability statute. Loretta K. Ray was injured and the two-year-old child of appellants was killed when the car in which they were riding with appellee, Sherry D. Mock, struck a tree and overturned. Carl Ray, Individually and as Administrator of the Estate of his young daughter, together with Mrs. Ray, instituted suit for damages against appellee, but after presentation of the evidence on their behalf to the jury, the trial court directed a verdict in favor of Mrs. Mock. From the judgment so rendered, appellants bring this appeal.
The proof reflects that Mrs. Ray and Mrs. Mock had made arrangements to meet their husbands in Pisgah, Arkansas to attend a musical performance on the night of May 5, 1972. The two ladies went to Pisgah in an automobile being driven by Mrs. Mock. Upon arrival, they were unable to locate their husbands, and apparently there was no musical being presented. After searching for the husbands, they finally saw them parked on the side of the road near Antoine. According to Mrs. Ray, appellee was rather “peeved” at her husband for his failure to be present at the meeting place and did not stop where the husbands were parked, but proceeded on toward Arkadelphia. The witness said that as they came into a curve, she observed that Mrs. Mock was driving “too fast”; that she looked at the speedometer and Mrs. Mock was driving 90 miles per hour; that this speed was attained on a straight stretch just before reaching the curve. Mrs. Mock lost control of the automobile and it crashed into a tree, killing the child. In their brief, appellants emphasize three acts in support of their contention that there was sufficient evidence of wilful and wanton misconduct on the part of Mrs. Mock to send the case to the jury. It is first pointed out that appellee was peeved at her husband because she had been unable to locate him, and that this anger influenced her in operating the car at a high speed. Second, the testimony on the part of appellants reflects that Mrs. Mock was driving up to 90 miles per hour and had passed a sign indicating a curve and a 45 mile per hour suggested safe speed just prior to the collision. Thirdly, it is observed that Mrs. Ray testified that she told appellee “She couldn’t make the curve going that fast, and she could slow down, or she could let me and the baby out.”
We are of the view that the trial court erred in granting the directed verdict. In McCall v. Liberty, 248 Ark. 618, 453 S.W. 2d 24, this court, citing an earlier case, Harkrider v. Cox, 230 Ark. 155, 321 S.W. 2d 226 (1959), said:
“It is only when fair minded men could not differ as to the conclusions to be drawn from the evidence that a plaintiff is entitled to an instructed verdict.”
The essence of an action under the host - guest statute is the requirement that a plaintiff prove wilful and wanton misconduct on the part of the defendant driver, and we have said that to constitute wilful misconduct, there must be a showing of “a conscious failure to perform a manifest duty in reckless disregard of natural or probable consequences to the life or property of another.” McCall v. Liberty, supra.
Here, there was evidence that an upset or angry motorist was driving 90 miles per hour on a road containing curves, with a two-year-old child in the automobile, and we are definitely of the opinion that these circumstances presented a jury question, i.e., we feel that the situation was one wherein fair-minded or reasonable men could differ as to the degree of negligence. Of course, it may well be that appellee can present evidence which will convince the jury that Mrs. Mock’s operation of the car was not wilful or wanton as that term has been construed — but again, this is a fact question, and accordingly one for a jury to determine, rather than the trial court.
Appellants also urge the court to adopt what they term the “modern trend of law” by holding that a two-year-old child, since it does not voluntarily accept a ride in an automobile, cannot be classified as a guest. Of course, if this contention be true, a showing of simple negligence on the part of appellee would be sufficient. A discussion of this point is unnecessary since this question was before the court in Tilghman, Administrator v. Rightor, 211 Ark. 229, 199 S.W. 2d 943, and we held that in defining a guest, the statute, presently Ark. Stat. Ann. § 75-914 (Repl. 1957) , makes no exception in favor of a minor, and it thus follows that appellants’ contention is without merit.
In accordance with the reasoning set out under the first point, the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
It is'so ordered.
FOGLEMAN, J., concurs.
This statute is identical with § 1303, Pope's Digest oflhc Statutes of Arkansas, in effect when Tilghman was decided. | [
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Carleton Harris, Chief Justice.
This proceeding to revoke appellant’s probation arises from undisputed facts and presents solely a question of statutory construction. Appellant first came before the trial court on a burglary and grand larceny charge in 1969. The trial court refused to accept appellant’s guilty plea, however, and instead placed him on “court probation” for three years. In September, 1970, appellant committed a second burglary, and this offense resulted in the court rendering two separate sentences for appellant. With respect to the 1969 burglary, the trial court revoked appellant’s “court probation” by accepting his plea of guilty, and placing him on probation for a period of five years, dating from September, 1970, in accordance with the provisions of Ark. Stat. Ann. § 43-2331 (Supp. 1973). In respect to the 1970 burglary, the trial court sentenced appellant to three years, with two suspended. In April, 1975, appellant was convicted in the Fort Smith Municipal Court of possession of marijuana, driving without a driver’s license, and failure to answer a summons, and the prosecuting attorney petitioned the trial court to revoke appellant’s probation on the 1969 offense. The trial court granted the petition and sentenced appellant to four years in the Department of Correction. From the judgment so entered, appellant brings this appeal, arguing that the length of his probation for the 1969 burglary violated the five-year limit placed on probation by Ark. Stat. Ann. § 43-2331 (Supp. 1973).
We do not agree with appellant in his argument. The controlling Arkansas decision on the question of “court probation,” utilized by the Sebastian County Circuit Court on the 1969 charge, is Maddox v. State, 247 Ark. 553, 446 S.W. 2d 210. There, the trial court postponed the acceptance of Maddox’s guilty plea for one year, conditioned upon his good behavior. Within two months, Maddox had committed other crimes, and the trial court revoked the “court probation” and accepted his plea of guilty to the initial charge, giving him a twelve year sentence. Maddox appealed, contending that because the trial court had given him a “one year probation,” he could not be sentenced to any period longer than one year. We rejected the argument, holding that the use of “court probation” to postpone acceptance of a guilty plea did not limit the trial court’s discretion as Maddox later violated the terms of the probation. This was the principal question in Maddox, i.e., whether the court was limited to its one year probation, or had the authority to render the sentence that was rendered. We said that the controlling fact is when the plea is accepted. Further, from the opinion:
“We perceive no language in this statute nor in any case cited to us that limits the power and the discretion of the trial court to delay the acceptance of a plea. In the case at bar we cannot say that one year is an unreasonable length of time to defer acceptance of a plea. ***
“Should we accept appellant’s argument we would circumscribe and severely handicap our trial judges in their efforts to determine when their trust and compassion should be exercised for the ends of justice and the best interest of the public as well as the defendant. The future of deserving individuals, especially youthful offenders, who come before our sentencing courts should not be jeopardized by such a narrow construction as urged by the appellant. Nor do we agree with the appellant that the sentence imposed is excessive since it exceeded one year. The sentence was within the statutory limits which are from 1 to 21 years.”
The cited language explains clearly the benefits of “court probation,” and we observe no reason why we should now render the narrow construction suggested by appellant.
The facts in the instant case and Maddox are virtually identical, each case involving the same informal “court probation” procedure. Only the statute cited by appellant is different — § 43-2331 instead of § 43-2324. However, Maddox still controls because the applicability of § 43-2331, limiting probation to five years, is conditioned upon the very first line of that section, “Upon entering a judgment of conviction *** the court may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.” [Our emphasis.] No judgment of conviction for the first offense was entered until September, 1970, and the period of probation for that first offense thus commenced in September, 1970. It is readily apparent that the April, 1975 offense was clearly within that five year period.
Affirmed.
Byrd, J. dissents.
Under the “court probation” procedure, the trial court retains jurisdiction over one admittedly guilty of a felony, but gives him a chance to rehabilitate himself, by a formal refusal to accept his guilty plea. By retaining jurisdiction, however, the trial court can revoke the “probation” by accepting the plea at a later time, if the person commits another offense.
The court could also have rendered this sentence under Ark. Stat. Ann. § 43-2324, and actually did not state which section was invoked.
Nor can’we say that three years is an unreasonable length of time.
Actually, it appears that the court had been very lenient with Cantrell. In June, 1973, a petition was filed requesting that probation be set aside because of the fact that Cantrell had been convicted in Municipal Court at Fort Smith for the offense of DWI and no driver’s license, being fined in the sum of $173.00. The court, however, did not revoke the probation. Again, in April, 1974, Cantrell was convicted of disturbing the peace and public drunkenness, fined $75.00 for the former offense and $50.00 for the latter, and the prosecuting attorney sought revocation of the probation. This petition was also denied. | [
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George Rose Smith, Justice.
This zoning case presents a question of constitutional law. The appellee, as the owner of a gasoline service station in Fayetteville, applied to the appellant Board of Adjustment for a variance that would permit the appellee to erect at its service station an advertising sign exceding in size the limit of 75 square feet fixed by the zoning ordinance. The Board unanimously denied the request. On appeal the circuit court reversed the Board’s decision, holding that the 75<-foot limitation is invalid on its face, in view of other provisions in the ordinance. Whether that holding is correct is the only question before us.
The ordinance contains ejxtensive and detailed provisions governing a wide variety of signs that are permitted or prohibited in differing zoning districts. We need not set forth the numerous restrictions imposed by the ordinance, but we do stress the fact that the appellee is challenging a single provision in a very comprehensive zoning ordinance.
This controversy centers upon the city’s distinction between a “business sign,” which relates to goods or services available on the premises where the sign is situated, and an “outdoor-advertising sign,” which relates to goods or services available elsewhere. Business signs are not to exceed 75 square feet in size, though there may be one on each face of a building. Outdoor-advertising signs cannot be more than 25 feet long or 12 feet high, so that a maximum area of 300 square feet is possible.
The basic power of a municipality to regulate the size and location of billboards and other commercial signs has been sustained in so many jurisdictions that it would be a waste of time and effort to cite the cases. Such regulations have been upheld upon many grounds* including^the promotion of traffic safety, the control of potentially hazardous structures, and the fundamental considerations of city planning and city beautification that underlie the zoning concept itself. We have sustained simple regulations'affecting signs. Seiz v. City of Hot Springs, 194 Ark. 544, 108 S.W. 2d 897 (1937); Berkau v. City of Little Rock, 174 Ark. 1145, 298 S.W. 514 (1927).
Moreover, the particular distinction now before us, between on-site and off-site advertising signs, has almost invariably been held to be constitutional. In a recent case, Cromwell v. Ferrier, 19 N.Y. 2d 263, 279 N.Y.S. 2d 22 (1967), the Court of Appeals had this to say: “. . . petioner argues that the legislative distinction between identification signs [on-site] and nonaccessory signs [off-site] is unreasonable and discriminatory. Neither Bond [a prior N.Y. case] nor any other decision of this court has dealt specifically with this point but numerous cases from other jurisdictions have had occasion to do so. In nearly all, zoning ordinances which have distinguished between accessory and nonaccessory signs have been upheld, providing that the distinctions were applied in a reasonable manner.”
Perhaps the leading opinion upon the point is that of Justice Brennan in United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 93 A. 2d 362 (1952). There the controlling legislative measure prohibited all off-site signs and enacted many restrictions upon the size and location of on-site signs. The court upheld the law, pointing out that a business sign is in actuality part of the business itself, but an outdoor advertising sign lacks that characteristic and is therefore subject to different treatment.
It goes without saying that in the case at bar the ordinance is presumed to be constitutional and the burden of showing its invalidity is upon the appellee. Rebsamen Motor Co. v. Phillips, 226 Ark. 146, 289 S.W. 2d 170, 57 A.L.R. 2d 1256 (1956). The appellee offered no proof whatever to support its contention that the ordinance is unreasonably discriminatory. Our inquiry is thus limited to the face of the ordinance, with every presumption being in its favor.
It is argued that since the appellee’s proposed sign would advertise the service station, the appellee is therefore an advertiser and must be treated precisely the same as outdoor advertisers (who are permitted to erect signs as large as 300 square feet). This argument illustrates the fallacy in the appellee’s position. The on-site business sign and the off-site outdoor billboard fall into different categories, are erected for different purposes, and are subject to different regulations. As Justice Brennan pointed out: “The business sign is in actuality a part of the business itself, just as the structure housing the business is a part of it, and the authority to conduct the business in a district carries with it the right to maintain a business sign on the premises subject to reasonable regulations in that regard as in the case of this ordinance.” United Advertising, supra.
The outdoor advertising sign, on the other hand, is not maintainable as a matter of right; such signs have been prohibited altogether. See the extended discussion in General Outdoor Adv. Co. v. Department of Public Works, 289 Mass. 149, 193 N.E. 799 (1935). The controlling issue is not that of comparing the city’s regulation of on-site signs with its regulation of off-site signs. Instead, the question is whether the 75-foot limitation upon business signs is unreasonable and arbitrary. The question is plainly one of fact, upon which the record is wholly and fatally devoid of proof.
A related argument is that since the appellee could buy a lot across the street from its service station and erect a 300-foot billboard there, it has a right to erect a similar sign upon the service station site. That argument was rejected injustice Brennan’s opinion and, inferentially, in the Cromwell case, where it was urged by the dissenting judges. The flaw in the argument lies in its disregard of the fundamental differences between on-site signs and off-site signs.
The trial court, in holding the restriction to be void on its face, declared that “the harm done by large signs is the same, regardless of who puts them up.” The appellee makes a similar contention. We cannot agree with such a generalization, which would ultimately invalidate all billboard regulation. The purpose of the Fayetteville ordinance and similar legislation is obviously to reduce the number and size of billboards and other signs, else there would be no point in the enactment. In case after case large signs have been excluded from residential districts, parks, recreation areas, highway frontages, and the like, without regard to “who put them up.” As we have seen, the proprietor of an on-site business is subject to restrictions reasonably appropriate to his situation. Here there is no proof that the Fayetteville ordinance is an unreasonable or arbitrary measure. By contrast, the ordinance which was invalidated in Sunad, Inc. v. City of Sarasota. 122 So. 2d 611 (Fla., 1960), cited by the appellee, placed no limit whatever upon the size of on-site signs. The court rested its decision on esthetic considerations and on that basis found no reason to distinguish one large sign from another. That is not our basis for upholding the Fayetteville zoning restrictions.
Reversed.
Byrd, J., dissents. | [
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Frank Holt, Justice.
Appellant petitioned the probate court to vacate a final order of adoption in which he adopted appellee’s natural child. The court denied and dismissed appellant’s petition. We first consider and find no merit in appellant’s contention for reversal that the action of the court was not supported by the evidence.
In 1966 the appellant and the appellee were married. At the time of this marriage, appellee had a four year old daughter. A final order was rendered in 1969 approving appellant’s adoption of this child. The parties were divorced in 1973 and appellant was ordered to pay child support. Appellant then sought to set aside the adoption order contending he neither consented to nor signed the petition and his signature was a forgery.
Appellant testified that he never discussed with appellee the adoption of her child and the first that he knew about the adoption order was in 1973 during the divorce action. He denied that he ever signed the verified petition or in any manner consented to it. He admitted that his signature on the petition and verification “looks a great deal like my signature.” His explanation of the similarity to his real signature was that “[I]t could have been traced on a clear piece of paper.” His wife had access to his proper signature. He admitted that since their marriage in 1966, the child had used his name. It is undisputed that a birth certificate was issued showing him as the father following the adoption. He admitted that two exhibits introduced into evidence, other than the adoption papers, contained his genuine signatures. Another exhibit (a yellow sheet of paper) contained a series of his signatures which were made for the benefit of the court. Appellant admitted that he was trying to set aside the adoption of the child because he didn’t think he should pay child support.
The appellee testified that she and the appellant had discussed his adopting her daughter before their marriage and it was his desire to do so. Subsequent to the marriage, he directed her to have the necessary legal papers drafted which she did. Appellee testified that she “definitely” saw appellant sign the petition in their home and he never questioned the adoption until the divorce proceeding which required him to pay child support. She paid for the adoption proceeding because “whichever bill was due we paid it.” Neither party accepted the cqurt’s offer to submit the various signatures to a handwriting expert.
The appellant had the burden of proof to sustain his allegation that his signature in the adoption proceeding was a forgery or fraudulent. As we have so often said, the trial court is in a much better position to resolve conflicting evidence since it observes and hears the witnesses. We only have before us the printed record. Appellant has neither discharged his burden of proof by showing fraud by clear, cogent and convincing evidence nor by a preponderance of the evidence. Clay V. Brand, 236 Ark. 236, 365 S.W.2d 256 (1963).
Appellant’s next two contentions for reversal are to the effect that the adoption proceeding is null and void because the appellant admittedly did not sign the notarized petition in the presence of a notary public. Appellant and the appellee did not separate for approximately four years after the rendition of the final order of adoption during which time the child resided with them. Ark. Stat. Ann. § 56-112 (Repl. 1971), in pertinent part, provides:
No action shall be brought to set aside an Adoption Decree for any procedural or jurisdictional defect except within two (2) years after its rendition, if the adopted person has, in fact, lived with the adopting parents that length of time ....
Since the appellant’s adopted child resided with them for longer than two years following the final adoption order, we find no merit in appellant’s contentions as to the procedural defect.
Affirmed. | [
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J. Fred Jones, Justice.
This is an appeal from a circuit court order overruling a demurrer and dismissing parts of a cross-complaint or counterclaim.
The appellee-plaintiffs as Mayor and city councilmen of the City of Paragould, together with appellee-plaintiffs Harris and Smith as newly elected water and sewer commissioners, filed suit in circuit court against the appellant-defendants as individuals and as water and sewer commissioners, and as members of a class of property owners in Water and Sewer Improvement District No. 3 of the City of Paragould.
The ten page complaint traced the legislative and ordained history of Improvement District No. 3 and alleged that under the provisions of the state law and municipal ordinances, Improvement District No. 3 had fulfilled the purpose of its creation and that by operation of law the ownership of the water and sewer system and its facilities had reverted to the citizens of Paragould, to be operated under the supervision and control of the governing body of the City of Paragould. The complaint then alleged that the defendant-commissioners had refused to recognize Harris and Smith as newly elected members of the commission; that they had neglected and refused to account to the City of Paragould, through its Mayor and city council, as to any of the official acts of the commission pertaining to the finances and operation of the water and sewer system of the city; had failed to keep accurate records of business transactions and had in fact usurped the offices of Harris and Smith, and had refused to permit the city council to inspect or copy water and sewer records.
The amended complaint then prayed for a declaratory judgment determining the ownership and right to manage and control the water and sewer system of the City of Paragould, and for an order directing the defendant-appellants Keeton and Gardner to cease the usurpation of the offices rightly belonging to Harris and Smith; for a mandatory injunction requiring the defendants to make available to the plaintiffs and the citizens of Paragould, access to the records of the water and sewer commission, and requiring them to comply with ordinances of the City of Paragould, and to render an accounting to the City of Paragould for the receipts and disbursements of funds passing through their hands as such commissioners, and to make certain reports to the city council.
The appellant-defendants filed a general demurrer to the complaint alleging that it did not state facts sufficient to constitute a cause of action and praying that the complaint be dismissed. The appellants then filed a 50 page brief in support of their demurrer and it is included in the record on this appeal. The appellee-plaintiffs made request for admissions and in response thereto, the appellant-defendants refused to admit or deny any of the requests made by the plaintiff-appellees until after their general demurrer was acted on by the trial court.
The appellant-defendants then filed an answer and cross-complaint in which they, in effect, denied each material allegation in the complaint. The defendant-appellants alleged in subsections (a) and (b) of Section VIII of what they termed a “Taxpayer's Cross-Complaint Against the Plaintiffs” that the city council had passed an ordinance in which a provision provided that the operation of the water works and sewer system and collection of revenues therefrom, should be under the control of the water and sewer system “heretofore established and presently functioning in the City. ” They then alleged that the board, so referred to in the ordinance, was the same board as the named defendants; that the plaintiffs were estopped to challenge the authority of said board because of their contractual obligations set out in the ordinance, and that the Acts and ordinances relied on by the appellee-plaintiffs were unconstitutional and void.
In subsections (c) through (k) the cross-complaint then alleged various acts amounting to misfeasance and non-feasance in office by the Mayor and city council in connection with many collateral and unrelated matters and in connection with many collateral and unrelated matters and in connection with the employment of special counsel rather than using the services of the city attorney in procuring the passage of unconstitutional legislation and prosecuting frivolous lawsuits, some of which were against the directors of Improvement District No. 3. The appellants also alleged in these subsections that the Mayor was receiving salary in excess of constitutional limit, and they prayed personal judgments for reimbursement and for injunctive relief.
As a separate item in response to appellees’ motion to strike the above subsections of the cross-complaint, the appellant alleged conflicts of interest between the appel-lees and their special counsel and moved for a show cause order against the attorneys for violation of the canons of professional ethics.
The order appealed from in this case recites as follows:
“On this 23rd day of April, 1974, court being in session, there came on to be heard the defendants’demurrer, the plaintiffs’ motion to strike defendants’ demurrer, defendants’ motion to dismiss request for admissions, plaintiffs’ motion to strike portions of defendants’ counterclaim cross-complaint, and defendants’ motion to show cause why Canons of Professional Ethics are not being violated, plaintiffs appearing by and through their attorneys, Cathey, Brown, Goodwin and Hamilton, and defendants appearing by their attorneys, Rhine and Rhine. The court, having reviewed pleadings, the motions with exhibits attached thereto, having heard statements of counsel and being fully advised in the premises, does find and order that:
1. Defendants’ demurrer should be and hereby is overruled and denied.
2. Subparagraphs c, d, e, f, g, h, i, j and k of paragraph VÍÍÍ of the defendants' answer and counterclaim should be and they hereby are dismissed without prejudice to the rights of the defendants or any of them to file suit in a separate case concerning the allegations contained therein in a court of competent jurisdiction.
3. The defendants’ motion to show cause why Canons of Professional Ethics are not being violated should be and it hereby is dismissed as not being within the competent jurisdiction of this court in this proceeding.
4. The defendants should be and they hereby are granted twenty days from this date within which to file further responsive pleading or further proceeding in this matter.
5. To the actions and orders of this court defendants do except and object, which exceptions and objections are hereby noted of record, and the defendants did note their intention to appeal the court’s ruling to the Supreme Court of the State of Arkansas.
IT IS SO ORDERED.”
Upon appeal to this court the appellants set out the points they rely on for reversal as follows:
“The lower court erred when it overruled appellants’ demurrer to the complaint filed by the appellees which complaint prayed for a declaratory judgment and information in the nature of quo warranto and other relief in an attempt to enforce City'of Paragould Ordinance 904, an ordinance to create a municipal water and sewer commission to take over the ownership, operation, and control of the water facilities of the City of Paragould now owned and controlled by Water Improvement District No. 3 of Paragould, Arkansas, with the authority to ‘sell any property, real or personal, not necessary to be used in the operation of the facility within its supervision.’
(A) The City Council of Paragould, Arkansas, had no legislative powers expressly conferred or fairly implied to pass Ordinance 904 and Ordinance 904 is a void ordinance.
(B) Section VII of Ordinance 904 violates the Constitution of the State of Arkansas and the Fifth Amendment of the Constitution of the United States.
(C) Ordinance 904 is in direct conflict with Special Act 487 of 1923 which is still in full force and effect.
The lower court erred when it dismissed the defendants’ (appellants’) ‘cross-complaint’ and referred to the ‘cross-complaint’ as a ‘counterclaim.’
The lower court erred when it dismissed without hear ing defendants’ motion ‘to show cause why the canons of professional ethics are not being violated by the appellees’ attorney.’
We are unable to consider the points relied on by the appellants because this is an appeal from an interlocutory order and not from a final order or judgment disposing of the issues.
As early as 1915 in the case of Davis v. Receivers St. L. & S. F. Rd. Co.. 117 Ark. 393, 174 S.W. 1196, the defendant demurred to a complaint and the court sustained the demurrer. In the case at bar, as was recited in Davis, “no judgment was rendered dismissing the complaint of the plaintiffs and not even a judgment for cost was rendered.” In Davis we held that when the trial court sustained the demurrer, the plaintiff had his election to amend his complaint, or, to rest on his complaint and permit final judgment to be rendered dismissing his complaint and then appeal. In so holding, we said:
“It is well settled in this State that no appeal lies where there is no final judgment. The order of the court sustaining the demurrer was not a final judgment but was interlocutory, merely.”
See also the more recent case of Spruill v. Hamilton, 207 Ark. 468, 181 S.W. 2d 35, and cases cited therein.
The appellants simply argue the merits of the cause under their contention that the trial court erred when it overruled their demurrer to the complaint, and in their reply brief they argue that this court should sustain their demurrer and they state, in part, as follows:
“The appellees contend that the order of the lower court was not a final order and not appealable. * * * [I]n this case, the order entered by the lower Court did dismiss appellants’ demurrer, and also dismissed the appellants’ Cross-Complaint. Certainly this lower court order was final as to the Cross-Complaint, and to force these appellants into a trial without a final adjudication on the ‘Cross-Complaint Question,’ and if after the alleged cause of action is heard in the lower court, then the question of the Dismissal of the Cross-Complaint is again submitted to this Court, and this Court finds that the Cross-Complaint should not have been dismissed, a great injustice would be forced on these appellants.”
The appellants’ argument in this connection has been answered contrary to their contention in at least three decisions of this court. In Security Mtg. Co. v. Bell, 175 Ark. 128, 298 S.W. 865, the appellee-defendant filed separate demurrers to Sections 2 and 3 in the first paragraph of Section 4 of the complaint. The trial court sustained the demurrer to Section 3 and the first paragraph of Section 4, but overruled it as to Section 2. The appellant refused to plead further and the complaint was dismissed as to Section 3 and the First paragraph of Section 4 from which order the plaintiff appealed. We held in that case that an objection and exception (at that time required) to the ruling of the court sustaining a demurrer to the third section and fourth paragraph of the complaint fully saved the point on review and adjudication of the whole action, and in that case we quoted from Davie v. Davie, 52 Ark. 224, at p. 227, 12 S.W. 558, and said:
“ ‘The object of the limitation is to present the whole cause here for determination in a single appeal and thus prevent the unnecessary expense and delay of repeated appeals.’
As the appeal must be dismissed for being prematurely taken, we refrain from passing upon the issues determined upon demurrer until the whole case is brought before us on appeal properly taken and prosecuted.”
In Renner v. Progressive Life Ins. Co., 191 Ark. 836, 88 S.W. 2d 57 (1935), the trial court entered an order sustaining a demurrer to part of a complaint and granting a motion to dismiss as to other portions of the complaint. In that case we said:
“The effect of the foregoing order was to dismiss
appellant’s complaint in part only, and to retain a substantial part thereof for trial. In Security Mortgage Company v. Bell, 175 Ark. 128, 298 S.W. 865, reading from the second headnote, we stated the applicable rule as follows: ‘An appeal from an order dismissing a cause as to certain paragraphs, but leaving the paragraph which presented a triable issue, held prematurely taken, since the issues should have been tried and objections to the demurrer urged on the final appeal from the whole action.’
Appellant’s cause being dismissed in part only this appeal is prematurely prosecuted, and must be dismissed.”
In the very recent case of Ind. Ins. Consultants v. 1st State Bk., 253 Ark. 779, 489 S.W. 2d 757, the trial court granted a motion for summary judgment and in so doing dismissed an intervention. After notice of appeal was filed, the trial court corrected its order to show only a partial dismissal of the intervention pertaining to the $21,000 item in issue, and the appellant contended that the trial court lacked jurisdiction to correct its order after the filing of notice of appeal. We found no merit to the contention and in that case we said:
“We do not reach the merits of the other points argued by appellant for lack of a final order. In Renner v. Progressive Life Insurance Co., 191 Ark. 836, 88 S.W. 2d 57 (1935) and Security Mortgage Co. v. Bell, 175 Ark. 128, 298 S.W. 865 (1927), we pointed out that an order dismissing a complaint in part and leaving a part which presented a triable issue was not an appealable order.”
The appeal in this case is dismissed without prejudice.
Fogleman, J., concurs in part and dissents in part. | [
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John A. Fogleman, Justice.
Appellant James H. Coleman sought credit for time spent in pretrial incarceration by petition for postconviction relief under Criminal Procedure Rule 1. Credit was denied by the circuit court which sentenced him. We affirm.
Coleman was found guilty of robbery by a jury on October 12, 1973, and sentenced to five years in the Department of Corrections pursuant to the jury verdict. He contended that since the sentence was imposed by the jury, the conclusion that he was denied credit for time spent in jail prior to his trial is inescapable. Yet we have no means of knowing whether the jury was aware of the time he had spent in jail.
The trial judge found that appellant was first confined on the charge of robbery on March 30, 1973, that bail was fixed at $5,000, but that appellant remained in confinement until the date of his trial, and held that he was not entitlted to credit for this time spent in jail. Coleman testified that he was unable to make bond because he did not have the money and had no property to put up as security for bail. The judge noted that the record disclosed the following: on May 7, 1973, Coleman’s case was passed to enable him to employ a lawyer; on May 15, the public defender was appointed to represent him; on June 4, Coleman entered a plea of not guil ty and waived trial by jury, whereupon the case was set for trial before the court without a jury on July 18; on July 16, the case was passed until September for setting, on motion of Coleman; and on August 29, the case was set for jury trial on October 12.
Our statute on the subject provides that the matter of allowing credit for time spent in pre-trial incarceration is addressed to the discretion of the trial court. Ark. Stat. Ann. § 43-2813 (Supp. 1973). We held in Shelton v. State, 255 Ark. 932, 504 S.W. 2d 348 that when the sentence imposed plus the time spent in jail awaiting trial did not exceed the maximum penalty, a prisoner is not entitled as a matter of right to credit for the full time spent in jail. As we recognized, however, in Smith v. State, 256 Ark. 425, 508 S.W. 2d 54, constitutional standards prevent the exercise of this discretion when it results in an accused’s being held in jail awaiting trial solely because of his indigency. Of course, it seems clear that appellant was endeavoring to employ a lawyer and first asserted his indigency after his case was passed to enable him to do so. And then, after having waived trial by jury, he withdrew his waiver on the eve of trial, and demanded trial by jury, resulting in the necessity of a resetting and the delay occasioned thereby. It can be plainly seen these delays were not due solely to his indigency, and the allowance of credit on his sentence for whatever time elapsed because of his actions certainly was discretionary with the trial court. It seems possible however, that some of his pretrial incarceration may have been due solely to his indigency.
There is nothing in the record to indicate that Coleman ever sought credit for his jail time in the trial court. Postcon-viction relief is not available to an accused who could have asserted the ground of his attempted collateral attack in the trial court before sentence was pronounced, but did not. Johnson v. State, 253 Ark. 1, 484 S.W. 2d 92; Murphy v. State, 255 Ark. 398, 500 S.W. 2d 394; Clark v. State, 255 Ark. 13, 498 S.W. 2d 657; Cooper v. State, 249 Ark. 812, 461 S.W. 2d 933, Ballew v. State, 249 Ark. 480, 459 S.W. 2d 577; Cox v. State, 243 Ark. 60, 418 S.W. 2d 799.
Our statutes cover sentencing procedures very thoroughly. See Ark. Stat. Ann. §§ 43-2301 - 2305 (Repl. 1964, Supp. 1973). Of course, there is a presumption of regularity attendant upon every judgment of a court of competent jurisdiction. Norrell v. Coulter, 218 Ark. 870, 239 S.W. 2d 280; Cutsinger v. Strang, 203 Ark. 699, 158 S.W. 2d 669; Stumpff v. Louann Provision Co., 173 Ark. 192, 292 S.W. 106; Hooper v. Wist, 138 Ark. 289, 211 S.W. 143. This strong presumption of validity applies to criminal convictions and sentences, which entitles them to every reasonable intendment in their favor. State v. Plum, 14 Utah 2d 124, 378 P. 2d 671 (1963); State v. Superior Court, 82 Ariz. 237, 311 P. 2d 835 (1957); State v. Cowan, 25 Wash. 2d 341, 170 P. 2d 653 (1946); Paul v. State, 177 S. 2d 537 (Fla. Ct. App. 1965); People v. Tannehill, 193 C.A. 2d 701, 14 Cal. Rptr. 615 (1961); People v. Crispell, 60 N.Y.S. 2d 85, 185 Misc. 800 (1945. See also, Smith & Parker v. State, 194 Ark. 1041, 110 S.W. 2d 24; 24 CJS 656, Criminal Law, § 1605 (7). In the absence of any showing to the contrary, it will be presumed that a sentence is pronounced and that the circuit court did its duty according to the statutes unless the failure to do so appears upon the face of the record. Brickey v. State, 148 Ark. 595, 231 S.W. 549; Brown v. State, 13 Ark. 96. See also, Morrison v. State, 159 Ark. 323, 251 S.W. 873.
After a jury verdict has been returned, §§ 43-2301, 2303 require that the court must ask the defendant if he has any legal cause why the judgment shall not be pronounced according to the verdict. The privilege is commonly known as the right of allocution. Even when the record is silent, it is to be assumed that such a statute was followed by the trial court, in the absence of evidence showing that it was not. Nahas v. State, 199 Ind. 117, 155 N.E. 259 (1927); State v. Hunter, 82 S.C. 153, 63 S.E. 685 (1909). See also, 1 Freeman on Judgments (5th ed.) 830. On collateral attack, the burden of showing non-compliance with such a statute is upon the accused. People v. Sheehan, 4 A.D. 2d 143, 163 N.Y.S. 2d 313 (1957); 24 CJS 656, Criminal Law § 1605 (7). See also, State v. Terry, 98 Kan. 796, 161 P. 905 (1916). In this case, it does not appear from the face of the record, and there is certainly no evidence to show, that the court did not afford to appellant the opportunity to ask for credit for his jail time prior to sentencing or that any objection was ever offered to the pronouncement of the sentence without crediting the pretrial jail time against the term imposed by the jury.
Since the appellant has failed to make the required showing, the judgment is affirmed. | [
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Lyle Brown, Justice.
Appellant is the county clerk of Searcy County. Appellees constitute the board of election commissioners of Searcy County. John A. Griffith timely filed with appellees his petition to have his name placed on the ballot as an independent candidate for county judge. Appellant requested of the commissioners that the petitions be turned over to him to the end that he could compare them with the voter registration list to determine the adequacy of the petitions. His request was denied. Appellant filed his petition for a writ of mandamus to compel the transfer of the petitions to his possession. This appeal is from a denial of that petition.
Appellant did not show a clear legal right to a writ of mandamus to compel the commissioners to turn the petitions over to him. Such a showing is a necessary prerequisite to the granting of such a writ. In Naylor v. Goza, 232 Ark. 515, 338 S.W. 2d 923 (1960) we said:
Since * * * the purpose of a writ of mandamus is not to establish a legal right but to enforce one which has already been established, it is essential to the issuance of the writ that the legal right of plaintiff or the relator to the performance of the particular act of which performance is sought to be compelled must be clear, specific, and complete, or, as otherwise stated, plaintiff or the relator must have a clear and certain legal right to the relief or remedy sought by the writ; and, according to some decisions, the right to the writ must be clear, undoubted and unequivocal, so as .not to admit of any reasonable controversy.
The method of filing as an independent candidate is prescribed by Ark. Stat. Ann. § 3-105 (Supp. 1973). Among other things it is provided that “The sufficiency of any petition filed under the provisions hereof may be challenged in the same manner as provided by law for the challenging of Initiative and Referendum petitions”. The same section provides that the petitions shall be directed to the official with whom certificates of nomination are required to be filed. Certificates of nomination for county office must be filed with the county election commissioners. Ark. Stat. Ann. § 3-121 (Supp. 1973). We have held that the county election commissioners have the right to determine the prima facie sufficiency of the petitions. We set out that the determination was to be made by counting the number of signers and comparing the total with the number required by law. With that action, we said the powers of the commissioners are at an end. We said a challenge to the petitions would have to be in a legal proceeding begun by an action to enjoin the commissioners from certifying the proposed candidate. Carroll v. Schneider, 211 Ark. 538, 201 S.W. 2d 221 (1947). The present statutory law is substantially the same as when Carroll was handed down.
We are unable to say the Legislature intended to strip the election commissioners of their authority as related in Carroll. Certainly we cannot say that under the status of the proceedings at the time the petition for mandamus was filed, appellant had a clear legal right to mandamus.
Affirmed. | [
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Carleton Harris, Chief Justice.
David Strode, appellant herein, was charged with assault with intent to kill and on trial was convicted by a jury, receiving a sentence of seven years imprisonment. From the judgment entered in accordance with the jury verdict, Strode brings this appeal. For reversal, it is asserted that “The method and proceedings used in the selection of the jury amounted to a denial of a fair and impartial trial and due process of law guaranteed by the Constitutions of the State of Arkansas and of the United States.” Actually, this argument covers two asserted errors.
To understand the contentions, it is necessary to point out certain background facts. The current charge against appellant relates to an alleged assault made on Harvey Dean Henshaw on December 7, 1973. Appellant was also charged with assault with intent to kill James Hamblin on December 8, 1973. The assault charge relating to Hamblin was tried on January 17, 1974, and Strode was convicted, this court affirming such conviction. The same jury panel which had been used in this January trial was likewise in use for the trial of Strode in the Henshaw case, which went to trial in February, 1974. It is the contention of appellant that the use of the same panel which had heard the prior case approximately a month earlier, the jury having returned a verdict of guilty in that case, deprived him of the fair and impartial trial guaranteed by the Constitutions of the United States and the State of Arkansas. While the trial court excused the particular 12 persons who served as jurors in the Hamblin assault charge, appellant argues that this step by the court was not sufficient to remove any bias, and a motion was made to quash the entire jury panel, or in the alternative, all members of the panel who were present for the trial of the earlier case. This motion was denied. In arguing here that the trial court erred in its ruling, appellant says:
“We know that the previous panel must have consisted of, at least twenty-four jurors. We find in the record that all but three members were questioned on Voir Dire in the previous trial The charge was the same, the defendant was the same, the only difference being that the victim was a different one.
“Common, ordinary, ‘horse sense’ tells one that these jurors would be unable to eradicate, from their minds, all things learned and impressions made, during the first trial of appellant only about a month before.”
We do not agree. In Montaque v. State, 219 Ark. 385, 242 S.W. 2d 697, Montaque insisted that he did not obtain a fair trial because he was required to select a jury from a panel which had, immediately prior to his trial, heard him vigorously denounced and his credibility violently attacked in another case. James Thompson had been convicted of an assault on Montaque and counsel for Thompson had denounc ed Montaque to the same jury panel with numerous uncomplimentary terms and phrases.
The jurors, when interrogated on voir dire, stated that they had formed no opinions from the previous trial as to the credibility of Montaque, and said that they could try the charge against Montaque impartially. After peremptory challenges had been used, the court refused to quash the remaining members of the panel, i.e., those members who were on the Thompson petit jury, and appellant asserted error. On appeal, we held contrary to the contention of Mon-taque, stating:
“The trial court is given a large discretion in determining the bias or prejudice of a juror as affecting his qualifications to serve in any particular case. In Lane v. State, 168 Ark. 528, 270 S.W. 974, we held: ‘The question of the impartiality of the jury, as guaranteed by the Constitution, Art. 2, § 10, is a judicial question of fact within the sound discretion of the trial court. ’
“Jurors must be presumed to possess the qualifications required under §§ 39-208 and 39-206 of the statutes (Ark. Stats., 1947) and that is ‘persons of good character, of approved integrity, sound judgment, and reasonable information.’ We find no abuse of the trial court’s discretion here. The jurors appear to have been carefully examined on their voir dire as to possible bias or prejudice against appellant and each answered that he had none.”
The record of the present trial does not contain the voir dire examination, and we do not know what questions were asked the members of the panel. Of course, if actual bias were shown, a juror would be disqualified, but there is no contention by appellant of actual bias on the part of any member of the panel, nor is it even shown that any tentative opinions had been formed. In Rowe v. State, 224 Ark. 671, 275 S.W. 2d 887, this court said:
“While it is true that some of the veniremen said that they had formed tentative opinions based upon newspaper reports or what some one had told them, all who were accepted stated that they could and would be guided solely by the testimony, giving to the defendant the benefit of all doubts that the law defines. There was no error in accepting these men. It is no longer practicable in an intelligent society to select jurors from a psychological vacuum or from a stratum where information common to the community as a whole is lacking.”
As previously stated, there is no showing here that any member of the panel possessed any actual bias. The argument is really that members of the panel should be assumed to be biased because they were members of the same panel that served in the first Strode trial.
The second phase of appellant’s argument relates to the fact that in the current case, Strode was originally charged along with a co-defendant, his brother, Walter Strode. Prior to the commencement of the trial, Walter Strode moved for a severance, such motion being denied by the court. After counsel for Walter had used two peremptory challenges to remove two members of the panel, and appellant had exercised one peremptory challenge, the court changed its view, and granted the motion for severance. The two jurors who had been excused by Walter were then, by order of the trial court, returned to the jury panel and the court ruled that appellant had only used his one challenge and was entitled to seven more. Appellant argues that this constituted error, stating:
“A juror challenged peremptorily can have a ‘good’ taste in his mouth and might not be that fair and impartial juror guaranteed by the Constitution of the United States and the State of Arkansas.
“Such procedure, necessarily, makes it imperative that the defendant challenge all such jurors which may be drawn from the box. This precludes his right to otherwise have a free hand at peremptory challenges.”
The record reflects that after appellant had used four of his seven challenges, the panel was exhausted and additional jurors were summonsed. The record is thereafter silent as to whether further peremptory challenges were exercised, and we do not know whether appellant exhausted all eight challenges to which he was entitled under the law. Accordingly, it cannot be contended that he was forced to go to trial with a jury composed of some individuals who were biased. For, to make such a contention, it was necessary that he exhaust his challenges. See Trotter and Harris v. State, 237 Ark. 820, 377 S.W. 2d 14, and the numerous cases cited therein.
Appelant’s contentions have been closely examined, and we find no prejudicial error.
It follows that the judgment of the Washington County Circuit Court should be affirmed.
It is so ordered.
The opinion was -handed down on October 28, 1974, but was not published-.—
The record only discloses that in pre-trial proceedings the attorney for appellant, referring to Strode’s first trial, stated:
“If my memory serves me correctly, we worked through all but three members of this panel on voir dire examination. Each of them heard the charge levied against David Strode. During voir dire there were certain questions regarding Assault with Intent to Kill in that particular case, mentioned to the jury. The jury understood further that — it is defendant’s firm belief that each member of that jury panel would have heard results of the case, whether they served on the actual jury or not.” | [
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J. Fred Jones, Justice.
The appellant, Bo Boshears, was an employee of the Arkansas Racing Commission and was injured when he was struck by an automobile as he was crossing the street on the way to his regular place of employment after going to a cafe to obtain some grapefruit juice to be consumed with his lunch.
Mr. Boshears filed a claim with the Workmen’s Compensation Commission and the claim was denied by a Referee on the ground that he was not within the course of his employment at the time of his injury. The Referee’s opinion was adopted word for word by the full Commission. He attempted to appeal the decision of the Commission to the Pulaski County Circuit Court and the appeal was denied because of the exclusive jurisdiction in the Workmen’s Compensation Commission under Act 462 of 1949, Ark. Stat. Ann. § 13-1407 (Repl. 1968). Certiorari was then granted by the circuit court — the appellant contending that Act 462 was violative of the equal protection clause of both the Arkansas and the United States Constitutions. The circuit court found that Act 462 of 1949 was not in violation of the equal protection clause of the Arkansas Constitution, Art. 2, § 3, or the Fourteenth Amendment of the United States Constitution. The circuit court found the Act to be constitutional and the decision of the Workmen’s Compensation Commission to be final.
It is apparently conceded in the case at bar that the claim against the Arkansas Racing Commission amounted to a claim against the state but the appellant contends that Act 462 of 1949 is unconstitutional, as above stated, because it denies a state employee the right to appeal from the decision of the Workmen’s Compensation Commission; and, “constitutes an invidious discrimination that has no correct, reasonable and/or proper legislative policy of purpose to justify said exclusion. That said discrimination is arbitrary, capricious, and has no rational or compelling reason for its existence.” The appellant contends that the right of appeal from a decision of the Workmen’s Compensation Commission is “a fundamental right” and since state employees constitute a “suspect group,” the state must prove an overriding state interest before it can deny such “fundamental right.” The appellant then argues that there was no proof of such overriding or compelling state interest offered in this case.
Article 5, § 20, of the Arkansas Constitution provides as follows:
“The State of Arkansas shall never be made defendant in any of her courts.”
Most of the cases coming before us involving Art. 5, § 20, supra, have to do with whether the particular suit actually amounts to a suit against the state, and in Watson v. Dodge, 187 Ark. 1055, 63 S.W. 2d 993, we held that any suit, whether in law or in equity, which has for its purpose and effect, directly or indirectly, of coercing the state is one against the state. In Pitcock v. State, 91 Ark. 527, 121 S.W. 742, 134 Am. St. 88, we held that the trial court acquires no jurisdiction where the pleadings show that a suit is in effect one against the state. The decisions in these cases are beside the point because, as already stated, it is not questioned that the claim in this case at bar was a claim against the state.
Claims against the state for personal injuries and property damage have been the subject of considerable legislation since the Legislature ceased dealing directly with such claims and transferred these duties to administrative boards such as the Special Claims Commission under Act 227 of 1935. The Special Claims Commission was later abolished by the creation of the State Board of Fiscal Control under Act 53 of 1945, which in turn was divested of its jurisdiction over claims against the state by the creation of a State Claims Commission under Act 276 of 1955, Ark. Stat. Ann. § 13-1401 (Repl. 1968). None of these Acts provided for judicial review but they were careful to avoid conflict with Art. 5, § 20, of the Constitution, supra, by language indicating exclusive jurisdiction in the administrative tribunal. The 1935 Act did provide that the action of the Commission “shall be subject to review only by bill in the General Assembly.”
By Act 462 of 1949 as amended, and digested as Ark. Stat. Ann. § 13-1407 (Repl. 1968), the Arkansas Legislature set up a special fund in the state treasury from which to pay claims allowed against the state to injured state employees and provided that the claims for injuries and death sustained by state employees while in the course of their employment with the state or any of its agencies, departments or institutions, arising out of or occurring within the course of such employment should be considered on the same basis and under the same provisions of the Arkansas Workmen’s Compensation Act, as applied to injured employees in private industry and the duty of administering the Act was placed on the Workmen’s Compensation Commission. This Act, § 13-1407, provides in part as follows:
“From the effective date of this act [March 19, 1963], the Workmen’s Compensation Commission shall have exclusive jurisdiction, as herein limited, of all claims against the State of Arkansas and its several agencies, departments, and institutions, for personal injuries and deaths of employees and officers of the State of Arkansas and its agencies, departments and institutions, arising out of and in the course of employment or service, and occurring on or after the effective date of this act [March 19, 1963]. Awards for such injuries and deaths shall be made by the Workmen’s Compensation Commission in the same amounts and on the same terms and conditions as if such injuries and deaths had arisen out of and in the course of private employment covered by the Workmen’s Compensation Act [§§ 81-1301 —81-1349] and the procedure to be followed in the presentation, hearing and determination of such claims shall in all respects be the same as in claims for compensation for injuries and deaths arising out of and in the course of private employment covered by the Workmen’s Compensation Act, except that the actions taken by the Workmen’s Compensation Commission with respect to the allowance or disallowance of any claim, in whole or in part, shall be final and binding upon all parties thereto, and shall not be subject to judicial review. The General Assembly shall at each biennial session appropriate, from such sources as it may see fit, a sum sufficient to satisfy such claims as are or probably will be payable during the following fiscal biennium under awards made under this section. The Workmen’s Compensation Commission shall direct the distribution of this fund and disburse same upon its vouchers issued against same.
There is hereby created in the Treasury of the State of Arkansas, a special fund to be known as the Workmen’s Compensation Revolving fund. All sums appropriated by the General Assembly pursuant hereto shall be deposited by the State Treasurer to the account of this special fund. The Workmen’s Compensation Commission shall draw all vouchers against this fund in payment of awards made by it under this act [§§ 13-1401 — 13-1413].
For the purposes of this act, the State of Arkansas shall be considered a self-insurer and shall be exempt from all fees and tax as such. [Acts 1949, No. 462, § 7, p. 1289; 1951, No. 373, § 3, p. 881; 1963, No. 521, § l,p. 1611.]” (Emphasis added).
The Act further provides (§ 13-1409) that upon the allowance or disallowance of such claim the Workmen’s Compensation Commission should immediately transmit a copy of its findings to the state comptroller (Director of Administration) and interested parties, and in the event that award should be made, the Workmen’s Compensation Commission should immediately take the necessary steps to pay the award and all expenses incidental to such claims from any funds previously made available for such purpose.
The appellant’s argument that § 13-1407, supra, violated “traditional” equal protection is without merit. In upholding the validity of a Sunday closing law, in the case of McGowan v. Maryland, 366 U.S. 420 (1961), the United States Supreme Court explained the “traditional” approach to equal protection as follows:
“Although no precise formula has been developed, the Court had held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrele vant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
Sovereign immunity question in the case at bar as embodied in Art. 5, § 20, supra, is very similar to that involved in the Illinois case of Raschillo v. Industrial Commission, 47 Ill. 2d 359, 265 N.E. 2d 663 (1970), and in that case the Supreme Court of Illinois said:
“The General Assembly drafted this statute which contained the distinction between State employees and private employees in accord with the doctrine of sovereign immunity. It cannot be said that the General Assembly in complying with the Illinois State constitutional doctrine of sovereign immunity created an invidious discrimination. The basis for the distinction between State employees' and private employees being that of following such a constitutional mandate was wholly rational and did not contain arbitrary classifications so as to abridge the equal protection guarantee. ...”
The appellant in the case at bar cites several cases under the Administrative Procedure Act, Ark. Stat. Ann. § 5-701, et seq. (Supp. 1973), wherein various state agencies were defendants in court action. In Hickenbottom v. McCain, Comm’r of Labor, 207 Ark. 485, 181 S.W. 2d 226 (1944), we pointed out that if the relief prayed should have been granted, it would have imposed no obligation on the state and, therefore, was not a suit against the state.
The appellant’s contention that state employees belong to a “suspect class” and that the right of appeal is a “fundamental right” is also without merit. We may accept as valid the appellant’s argument that legislation which establishes classification does not carry with it the presumption of constitutionality under an equal protection challenge where the class it establishes is “suspect, ” and that in such situations the state must demonstrate a compelling interest for the legislation. There are a number of court decisions that would tend to support the appellant in this argument such as race where the membership of the class is an accident of birth as in Loving v. Virginia, 388 U.S. 1 (1966); indigency as in Griffin v. Illinois, 351 U.S. 12 (1956); alienage as in Graham v. Richardson, 403 U.S. 365 (1971); illegitimacy as in Gomez v. Perez, 409 U.S. 535 (1973); and sex as in Frontiero v. Richardson, 411 U.S. 677 (1973). The appellant has cited no case and we have found none in which state employees as a class have been determined to constitute a class that is “suspect” within the context of appellant’s argument. As to appellant’s argument pertaining to a “fundamental” right to an appeal, the concept of “fundamental” right with respect to equal protection under the Fourteenth Amendment was considered by the United States Supreme Court in the case of San Antonio School District v. Rodriquez, 411 U.S. 1 (1973), where the court, quoting from Shapiro v. Thompson, 394 U.S. 618 (1968), said:
“ ‘The Court today does not ‘pick out particular activities, characterize them as ‘fundamental’ and give them added protection. . . .’ To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to that right no less protection than the Constitution itself demands.’ ”
In Griffin v. Illinois, supra, the United States Supreme Court said:
“It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all.”
See also Blanc v. United States, 244 F. 2d 708 (2d Cir. 1957) where, in refusing judicial review of an administrative denial of the appellant’s claim under the Federal Employees’ Compensation Act, the Court of Appeals for the Second Circuit said:
“Though it may be informal, agency action which amounts to a genuine, fair consideration of a claim for benefits and not merely an arbitrary flouting of it, satisfies constitutional requirements and precludes further court review. The appellant appeared by her attorney at the hearing before the Appeals Board. Its decision and order as filed contains a comprehensive statement of the facts and of its plausible reasons for the affirmance of the denial of the claim. By no stretch can it be fairly said that its action was arbitrary or capricious.”
In the case of Ortwein v. Schwab, 410 U.S. 656 (1973), an Oregon statute required a $.25 filing fee before a public welfare agency decision would be subject to judicial review. In upholding the Act under the due process clause, the United States Supreme Court said:
“These appellants have had hearings. The hearings provide a procedure, not conditioned on payment of any fee, through which appellants have been able to seek redress. This court has long recognized that, even in criminal cases, due process does not require a State to provide an appellate system. McKane v. Durston, 153 U.S. 684, 687 (1894); see Griffin v. Illinois, 351 U.S. 12, 18 (1956); District of Columbia v. Clawans, 300 U.S. 617, 627 (1937); Lindsey v. Normet, 405 U.S. 56, 77 (1972).”
We conclude, therefore, that Act 462 of 1949 as amended (§ 13-1407), simply makes the Arkansas Workmen’s Compensation Commission a “claims commission” in connection with claims by state employees for injuries or death growing out of their employment by the state and provides that in administering its duties in connection with such claims, the Workmen’s Compensation Commission shall apply the compensation law as it relates to private industry. We hold that Act 462 of 1949 does not violate the equal protection clauses of the Arkansas or United States Constitutions, and that the judgment of the circuit court should be affirmed.
The judgment is affirmed. | [
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John A. Fogleman, Justice.
The sole point for reversal of this will contest is stated thus:
Anderson Coleman’s second will is offered as a counterclaim, and therefore, the statute of limitation is not applicable.
The factual background and the issue on appeal are concisely stated by appellant. Appellee apparently concedes the correctness of this statement. It is as follows:
Anderson Coleman died on April 12, 1967. During his lifetime, he married twice. His first marriage was to Donar Coleman. On the 24th day of January, 1956, Anderson Coleman executed a will whereby Donar Coleman was to be devised certain property at his death. Donar Coleman pre-deceased Anderson Coleman and sometime after her death, Anderson Coleman married Clara Coleman. On the 4th day of November, 1966, Anderson Coleman executed a will whereby Clara Coleman was to be devised certain property at his death.
On April 10, 1972, Cecil Coleman, a son of Anderson Coleman, filed a Petition to Probate Will and Appointment of Personal Representative and proffered the first will of Anderson Coleman. This was one day short of the running of the five-year statute of limitation for fil ing of a will. Order for Appointment of Executor was made by this Court on April 11, 1972.
Clara Coleman, second wife of Anderson Coleman, was given Notice to Surviving Spouse on April 10, 1972. Clara Coleman then petitioned to set aside the first will and the Order appointing Cecil Coleman executor of the estate. Petition set out that a second will existed and revoked the first will filed by Cecil Coleman.
Cecil Coleman by Reply alleged that the statute of limitation had run against the will offered by Clara Coleman and should not be probated.
On May 16, 1972, Clara Coleman filed Petition for Probate of Will and Appointment of Personal Representative and proffered the will of Anderson Coleman dated November 4, 1966.
The court found that the second will of Anderson Coleman was not timely filed and that it was barred by the five-year statute of limitation. That the first will of Anderson Coleman was timely filed but when the second will was made the first will was revoked and that the estate of Anderson Coleman, deceased, would pass by descent and distribution.
It was therefore so ordered by the court.
Clara Coleman contends that this cause was not original with her and the second will proffered by her is the same as a counterclaim and that the statute of limitation does not run against the counterclaim.
A summarization of appellant’s argument is that the subsequent will offered for probate by her was not barred by the five-year statute [Ark. Stat. Ann. § 62-2125 (Repl. 1971)] because it was not asserted in an effort to obtain affirmative relief, but as a counterclaim against the will offered by Cecil Coleman. She contends that a counterclaim is not barred if pleaded as a defense to a cause of action asserted against the pleader, provided the counterclaim was not barred by the statute of limitations when that cause of action arose. A ready answer to this contention is that the counterclaim statutes [Ark. Stat. Ann. § 27-1121, 1123, 1124 (Repl. 1962)] have no application to a proceeding to probate or contest a will.
It is quite true that the Probate Code of 1949 provides that procedure shall be the same as that followed in courts of equity. Ark. Stat. Ann. § 62-2004 (e) (Repl. 1971). We have uniformly applied such procedures in probate proceedings since Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225. See also, Umberger v. Westmoreland, 218 Ark. 632, 238 S.W. 2d 495; Price v. Price, 253 Ark. 1124, 491 S.W. 2d 793. It is true that this court has been authorized by Ark. Stat. Ann. § 62-2007 (Repl. 1971) to prescribe rules of procedure in probate courts but it has never seemed necessary to do so, because the procedures of chancery courts, presided over by the same judges as the probate courts, have seemed adequate. But, even in a court of equity, the counterclaim statute would not apply in this type of proceeding, so it does not apply here.
A counterclaim is defined as a claim by a defendant against a plaintiff. Ark. Stat. Ann. § 27-1123, defining a counterclaim, is a part of the Civil Code of Arkansas, adopted in 1869. There are two types of proceedings under the Civil code. One is a civil action, the other is a special proceeding. Civil Code §2, Ark. Stat. Ann. § 27-105 (Repl. 1962). A civil action is an ordinary proceeding in a court of justice by one party against another for the enforcement or protection of a private right or the redress or prevention of a private wrong. Civil Code § 3, Ark. Stat. Ann. § 27-106 (Repl. 1962). It is commenced by the filing of a complaint and causing summons to be issued. Civil Code § 58, as amended, Ark. Stat. Ann. § 27-301 (Repl. 1962). The other type of proceeding is called a special proceeding. All proceedings not covered by the definition of a civil action are special proceedings. Civil Code § 4, Ark. Stat. Ann. 27-107 (Repl. 1962).
The pleading provisions of the civil code apply to the prosecution of actions both at law and in equity, but not in special proceedings. Civil Code §§ 13, 106, Ark. Stat. Ann. §§ 27-215 (Repl. 1962), 27-1102 (Repl. 1962). Some proceedings in probate court are civil actions, e.g., proceedings by which a claim against the estate of a deceased person is reduced to judgment. Bright v. Johnson, 202 Ark. 751, 152 S.W. 2d 540. Others are special proceedings, not civil actions, so that the extension of exemption from the statute of limitations which applies to civil actions does not apply. Nelson v. Cowling, 89 Ark. 334, 116 S.W. 890. There are plaintiffs and defendants in civil actions only. Civil Code §§ 1, 2, Ark. Stat. Ann. § 27-201, 203 (Repl. 1962). Since a counterclaim can only be a claim by a defendant against a plaintiff, it can be asserted only in a civil action.
There is no right to contest a will, except as provided by statute. Manning v. Manning, 206 Ark. 425, 175 S.W. 2d 982. A will contest is not a civil action, but is a special proceeding. Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W. 2d 321. In Rockafellow, we held a statute making a spouse of a party in a civil action incompetent to testify inapplicable to a will contest for this reason.
There are no plaintiffs and defendants in a will contest, and it is not instituted by the filing of a complaint. This was the case in the Civil Code, which applied to probate courts only in civil actions and had separate provisions governing will contests. See Civil Code §§ 24, 806, § 513. While those provisions governing will contests have been superseded by the Probate Code of 1949, the nature of the proceedings has not.
The proceedings for probate of a will are governed by Ark. Stat. Ann. § 62-2101 et. seq. (Repl. 1971). The proceedings for contest of a will are governed by Ark. Stat. Ann. § 62-2113-2126 (Repl. 1971). Nowhere is there any indication that either proceeding is a civil action as distinguished from a special proceeding. There are no plaintiffs and defendants. No summons is required. The counterclaim statute simply has no application.
That is not to say that one offering a subsequent will has no rights. Such a person may object to the probate of a prior will. Ark. Stat. Ann. 62-2113, 2116 (Repl. 1971). The provisions of § 62-2116 (b) have particular application here. It is there provided that:
WHERE ONE WILL ALREADY ADMITTED OR ADMINISTRATION GRANTED. If, after a will has been admitted to probate or after letters of administration have been granted, a petition for the probate of a will of the decedent, not theretofore presented for probate, is filed, the court shall determine whether the former probate or the former grant of letters should be revoked and whether such other will should be admitted to probate or whether the decedent died intestate.
Thus it will be seen that in this case there were two issues, i.e., (1) should the probate of the former will be revoked and (2) should the subsequent will be admitted to probate. Under the provisions of Ark. Stat. Ann. § 62-2114 (Repl. 1971), a contest on the ground that another will has been discovered must be filed both (1) before final distribution and (2) within the time stated in Ark. Stat. Ann. § 62-2125. Sec. 62-2125 prohibits the admission of a will to probate unless application for its probate was made to the probate court within five years from the death of the testator, with certain exceptions, none of which apply here.
Appellant did not present the will she now asserts as the last will of Anderson Coleman within five years from the death of the testator. This was too late.
The judgment is affirmed.
Procedures for probate and contest of wills were separately set out in Civil Code, § 513. | [
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Conley Byrd, Justice.
This is an appeal from a $300,-000 default judgment entered in a personal injury action in favor of appellee Marilyn Jean Barnett, Administratrix of the Estate of Carl Dewayne Barnett, deceased, and against appellant Reo Moving & Storage Company of Illinois and its driver Appellant Willie L. Robertson. Appellants rely upon the following points for reversal:
“POINT I. The trial court erred in finding that the appellants should not be permitted to plead to the complaint notwithstanding that time for pleading had expired.
POINT II. The trial court erred in entering judgment against appellants because a co-defendant, Clarence Poole, had filed an answer which inured to the benefit of appellants.
POINT III. Appellants should have been permitted to remove the case to Federal Court.
POINT IV. The court erred in admitting evidence as to damages for loss of parental guidance.
POINT V. The judgment is excessive.
POINT I. Appellants admittedly received proper service of the summons and complaint sometime around October 24, 1973. Appellant Reo Moving & Storage Company (hereinafter referred to as “Reo") promptly turned its summons and complaint over to its insurance broker Lindquist Burns Insurance Agency. William Leonard of the Lindquist Burns Insurance Agency mailed the summons and complaint to R. E. Potter, Ltd., through whom “Reo’s” liability coverage with U.S.F.&G. had been obtained. R. E. Potter, Ltd., is apparently a general ageni for U.S.F.&G. Potter told U.S.F&G.’s claim department that he had delivered the summons and complaint to U.S.F.&G.’s adjuster Mr. Ward Chase. Ward Chase denies that Potter delivered the summons and complaint. At any rate “Reo” had thirty days within which to answer the complaint, but due to the neglect or default of its insurance agents, no answer or response to the complaint was made until December 19, 1973. Appellants in both the trial court and here contend that their failure to answer within time was caused by “excusable neglect, unavoidable casualty and other just cause” within the meaning of Ark. Stat. Ann. § 29-401 (Repl. 1962). That statute provides:
“Judgment by default shall be rendered by the Court in any case where an appearance or pleading, either general or special, has not been filed within the time allowed by this Act; provided, that the Court may for good cause allow further time for filing an appearance or pleading, if application for granting further time is made before expiration of the period within which the appearance or pleading should have been filed; and that nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause.”
Appellants quote from decisions of this court prior to Acts 1955, No. 49, and from decisions of other courts construing similar statutes to the effect that the delay in responding to the complaint came about through “excusable neglect, unavoidable casualty or other just cause. ” The history of the lax procedure before Acts 1955, No. 49, and the effect and purpose of the change brought about by Acts 1955, No. 49, can be found in Walden v. Metzler, 227 Ark. 782, 301 S.W. 2d 439 (1957), and Pyle v. Amsler, Judge, 227 Ark. 785, 301 S.W. 2d 441 (1957). The effect of the 1957 Amendment, Acts 1957, No. 53, which provided: “. . . that nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause,” has been considered in Interstate Fire Insurance Co. v. Tolbert, 233 Ark. 249, 343 S.W. 2d 784 (1961); Moore, Adm'x v. Robertson, 242 Ark. 413, 413 S.W. 2d 872 (1967); and Ryder Truck Rental v. Wren Oil Dist. Co., 253 Ark. 827, 489 S.W. 2d 236 (1973). We can see little difference between the neglect of the agents and employees involved in Interstate Fire Insurance Co. v. Tolbert, supra, and in Ryder Truck Rental v. Wren Oil Dist. Co., supra, and the agents to whom “Reo” entrusted its affairs. Consequently, we must hold that the trial court did not err in finding that appellants’ conduct did not amount to “excusable neglect, unavoidable casualty or other just cause.”
POINT II. Appellants contend that an answer filed by a third defendant, Clarence Poole inured to their benefit and that because thereof the trial court erred in entering the default against them. We find no merit in this contention because the issue is raised for the first time on appeal. Furthermore, there were separate allegations of negligence against Poole that did not arise out of any relationship of indemnity, master and servant, or principal and agent such as was involved in Arkansas Electric Co. v. Cone-Huddleston, 249 Ark. 230, 458 S.W. 2d 728 (1970).
POINT III. Appellants contend that since they did not know about the voluntary non-suit against Poole until they received the precedent for judgment, the trial court erred in not setting aside the default judgment so that they could remove the case to Federal Court on diversity of citizenship. We find no merit in this contention, because as pointed out in Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574, 74 S. Ct. 290, 98 L. Ed. 317 (1953), a state court’s procedural provisions cannot and do not control the privilege of removal granted by federal statute.
POINT IV. Appellants objected to any evidence for loss of parental guidance of the five children left by the decedent on the ground that there was no allegation in the complaint on that issue.
The allegation in appellee's complaint on that issue was as follows:
“. . . that his wife, Marilyn Jean Barnett and five minor children suffered and sustained severe pecuniary injuries, suffered severe mental anguish and the wife suffered loss of consortium as a result of the death of her husband.”
Appellee recognizes that under our prior cases, Helena Hardwood Lumber Co. v. Maynard, 99 Ark. 377, 138 S.W. 469 (1911), that before one could recover for loss of parental care and guidance the matter must have been specifically pleaded. However, to avoid that requirement, appellee points to AMI 2215 and our per curiam order of April 19, 1965, to the effect that an AMI instruction should be used where applicable unless the trial court finds that it does not accurately state the law.
Our per curiam order of April 19, 1965, was neither an attempt nor was intended to affect or to change pleading requirements. We note also that, appellee’s interpretation has not been given to the per curiam order by the members of the drafting committee of AMI — see article by Henry Woods in 20 Ark. L. Rev. 73, 80, wherein it is specifically recognized that before the instruction on loss of parental guidance can be given it must be specifically pleaded.
In both Starks v. North Little Rock Policemen’s Pension and Relief Fund, 256 Ark. 515, 510 S.W. 2d 305 (1974), and Kohlenherger, Inc. v. Tyson’s Foods, Inc., 256 Ark. 584, 510 S.W. 2d 555 (1974), we pointed out that because a default judgment is in the nature of a forfeiture, a judgment by default must strictly conform to and be supported by the allegations of the complaint. Of course, when appellee’s pleading is tested by that rule, we find that the issue of loss of parental guidance was not sufficiently pleaded to permit the introduction of proof in connection therewith.
However, the error of the trial court in admitting the evidence does not necessarily require an outright reversal of the whole judgment. At the conclusion of the evidence the record shows that in arriving at the total amount of the judgment the trial judge, before whom the case was tried without a jury, determined that he would allow $100,000 for loss of contributions, funeral bills and the value of the pickup truck that was destroyed; $50,000 to the widow for loss of consortium and mental anguish; and $30,000 for each of the five children. Of course, the error in admitting the evidence as to loss of parental guidance involved only the $30,000 item for each of the five children and if this element be stricken from the judgment by remittitur then the balance of the judgment can stand.
POINT V. Appellants here argue that the award of $200,000 for mental anguish is not supported by the record. We need not determine this issue since under Point IV, supra, appellee must enter a remittitur for $150,000 or the case will be remanded for a new trial. We do not consider the $50,000 award to the wife for mental anguish and loss of consortium as excessive on the record before us.
If within 17 days the appellees enter a remittitur for $150,000 — (i.r. $30,000 for each of the five children) the judgment will be affirmed. Otherwise the judgment will be reversed for a new trial.
Affirmed on condition of remittitur. | [
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George Rose Smith, Justice.
In this condemnation case the Highway Commission appeals from a verdict and judgment fixing the landowners’ compensation at $4,000. The testimony of the landowners’ expert witness, a professional appraiser with 44 years’ experience, amply supports the verdict. Nor was there any error in the court’s refusal to strike the “before” value testimony of Carlton A. Smith, one of the owners. He had lived in the community for 27 years and had watched the sales of land in the area through the years. He valued his farm at $2,000 an acre and stated on cross-examination, without objection, that he had been offered that amount for his land. Such an offer, like hearsay, is not admissible as proof of value, but we have held that hearsay testimony, if not objected to, may support a verdict. Ark. State Highway Commn. v. Bradford, 252 Ark. 1037, 482 S.W. 2d 107 (1972). An offer falls in the same category. It was not shown that the offer in question was not an adequate basis for Smith’s opinion.
Affirmed. | [
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Frank Holt, Justice.
Appellant was convicted by a jury of second degree kidnapping in violation of Ark. Stat. Ann. § 41-2308 (Supp. 1973). His punishment was assessed at three years in the State Department of Correction. We first consider appellant’s contention for reversal that the evidence was insufficient to justify the verdict and, therefore, the court erred in not directing a verdict of acquittal. We cannot agree.
It is well established that on appeal we consider only that evidence, and all reasonable inferences deducibie therefrom, which is most favorable to the appellee and if it is substantial, we affirm. Witham v. State, 258 Ark. 348, 524 S.W. 2d 244 (1975); and Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974). The prosecutrix identified the appellant as the individual who kidnapped her on August 7, 1969. She testified that the appellant, a stranger, came to her door asking for a drink of water, which she provided. When she complied with his second request, he jerked her from the doorway of her house, dragged her around the house and said he was going to take her with him. He told her she was going to “stay all night with him.” She continued to resist and he threatened her by placing a knife to her throat, saying he would kill her if she did not “get over the fence.” After crossing the fence, he drag¿ i her into a field on the other side of another fence and into the edge of some woods. During this time he asked her “if I wanted to do anything.” Following her refusal and continued entreaties, he returned her to the house. During her struggle with the appellant, she noticed the name “Billy” tattooed on his shoulder. Several other witnesses identified appellant as being in the rural area within approximately four miles of the scene of the kidnapping some two days before the alleged offense. It appears he was a nonresident hitchhiker attempting to locate a relative in the community. There were witnesses who testified that the physical condition of the field near the house indicated the struggle described by the victim. We hold the evidence was amply substantial to support thejury’s verdict. The appellant’s alibi that he was in another state at the time was a matter for the jury to consider in resolving the conflicting evidence.
We next consider appellant’s assertion that the court erred in not striking the testimony of certain witnesses who observed, as previously indicated, the appellant in the vicinity a few days before the alleged kidnapping. It is appellant’s argument that the testimony of these witnesses is neither material nor relevant to the issue because his whereabouts two days before the crime has no relation to the proof of his committing the crime. We disagree. It is well settled that evidence is relevant and admissible if it tends to prove an issue or constitute a link in the chain of proof, even if other evidence is required to supplement it. Harris v. State, 239 Ark. 771, 394 S.W. 2d 135 (1965); Williams v. State, 237 Ark. 569, 375 S.W. 2d 375 (1964); Glover v. State, 194 Ark. 66, 105 S.W. 2d 82 (1937); Tullis v. State, 162 Ark. 116, 257 S.W. 380 (1924); and Austin v. State, 14 Ark. 555 (1854).
Appellant also contends that the court erred in admitting into evidence two photographs of the appellant which were taken approximately two years after the alleged offense. We disagree. One of the photographs depicts the name “Billy” on the left upper arm. The victim testified that she observed this tattoo during her struggle. Another picture showed the words “Crime don’t pay” tattooed on his chest. The photographer identified the pictures as being an accurate representation of the appellant in 1970. A witness who observed the shirtless appellant in the vicinity a few days before the offense testified that he noticed the chest tattoo and that the photograph was a correct representátion of what he saw at that time.
The test of whether photographs are admissible as evidence is the fairness and correctness of the portrayal of the subject depicted. Also the. admissibility of photographs is largely within the sound discretion of the trial court, which we do not disturb unless there is an abuse of discretion. Wheeler, Adm’x v. Delco Ben., 237 Ark. 55, 371 S.W. 2d 130 (1963). In the case at bar, we are of the view the photographs properly met the requisite standard and the court did not abuse its discretion.
Neither can we agree with appellant that he was denied the right to a speedy trial. Appellant invokes the terms of Ark. Stat. Ann. § 43-1708 (Repl. 1964) and argues that he was not brought to trial as the statute requires before the end of the second term of the court having jurisdiction of the offense. The trial court found the appellant was not denied a speedy trial inasmuch as he refused to waive extradition from another state where he was serving a prison term and that the Arkansas officials had acted in good faith in attempting to extradite him. In fact, it is admitted that the appellant was “during all this time, resisting his return to Arkansas for trial.” Appellant cannot refuse to waive extradition and at the same time contend he is being denied a speedy trial within the terms of our two term discharge statute. § 43-1708, supra. Thorne v. State, 247 Ark. 346, 445 S.W. 2d 481 (1969). Cf. Morris v. Wyrick, Warden, 516 F. 2d 1387 (8th Cir. 1975).
Subsequent to appellant’s brief by his counsel, the appellant additionally contends, pro se, that Ark. Stat. Ann. § 43-1602 (Repl. 1964) requires the kidnapping charge filed against him on December 5, 1974 (five years after the allege.d offense) be dismissed. This statute provides that an indictment or information in a felony, such as here, be filed within three years of the commission of the offense. The court found, however, that the original information (which it appears could not be found) was filed within the three year statutory limitation. There is no contention the court’s finding is contrary to the evidence. Furthermore, Ark. Stat. Ann. § 43-1604 (Repl. 1964) provides that whenever a defendant is a nonresident, as here, the time limitation does not apply. Grayer v. Stale, 234 Ark. 548, 353 S.W. 2d 148 (1962).
Affirmed. | [
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GEORGE Rose Smith, Justice.
The appellant, charged with second-degree murder in the shooting of his wife, was found guilty by the jury and was sentenced to imprisonment for ten years. For reversal he contends that the trial court should have directed a verdict in his favor and that the court was in error in its rulings upon the admissibility of certain evidence.
With respect to the directed verdict counsel for the appellant mistakenly assume that we may consider only the evidence that had been introduced when the State rested its case in chief. The appellant, however, did not stand upon the motion for a directed verdict which was made at that time. Instead, he introduced proof, including his own testimony, to establish his defense. By that procedure the original motion for a directed verdict was waived; the sufficiency of the evidence must be determined upon the entire record. Crow v. State, 248 Ark. 1051, 455 S.W. 2d 89 (1970).
There is ample proof to support the verdict. The jury had grounds for disbelieving Brewer’s assertion that he accidentally shot his wife while cleaning his pistol. To begin with, there were admittedly two shots, which makes it unlikely that both were accidental, as Brewer testified. The State showed that, depending upon whether the gun was cocked, it took either 8 or 14 pounds of pressure to pull the trigger. The police arrived at the scene almost immediately, but they found no equipment for cleaning a gun. The decedent was shot at close range. Finally, there had been marital difficulties between the couple. Brewer had contracted a venereal disease three different times; in one instance he had infected his wife.
It is argued that the State’s proof was incomplete, because Dr. Moser, who performed an autopsy and determined the cause of death, was unable to say that the body which he examined was that of Brewer’s wife. Dr. Moser, however, took pictures of the body, the pictures being received in evidence. On cross-examination Brewer identified one of the pictures as that of his wife. Thus any defect in the State’s proof was corrected later in the trial.
We cannot sustain the appellant’s contention that the State failed to establish a continuous chain of possession with respect to the cartridges that the police found at the Brewer home, where the homicide occurred. Officer Martin, who first took charge of Brewer’s pistol, said that “it had four shells in it, and two had been shot.” Brewer’s argument assumes that the officer was referring to only four shells; but upon the testimony as a whole the jury could readily have found that the officer was talking about six shells. Indeed, his field notes made at the time refer specifically to six cartridges, and the testimony given by other witnesses in the chain of possession is to the same effect. When the testimony is considered in its entirety no gap in the chain is established.
It is insisted that one of the State’s witnesses, Mrs. Garrison, was allowed to testify about the contents of an insurance policy in violation of the best evidence rule. The witness, who was the personnel manager at the plant where Mrs. Brewer had worked for a short time before her death, testified that under the company’s insurance plan for its employees Mrs. Brewer had been insured for $4,000, plus double indemnity. It is now argued that the insurance policy should have been produced by the State.
We find no error. The best evidence rule does not apply strictly to collateral matters. Lin Mfg. Co. of Ark. v. Courson, 246 Ark. 5, 436 S.W. 2d 472 (1969). McCormick’s treatise on Evidence, § 234 (2d ed., 1972), points out that some writing plays a part at nearly every turn in human affairs. It becomes impracticable to forbid any reference to a writing without its being produced in court. McCormick goes on to say that although the concept of collateralness defies precise definition, three principal factors should be considered. “These are: the centrality of the writing to the principal issues of the litigation; the complexity of the relevant features of the writing; and the existence of genuine dispute as to the contents of the writing.” Id.
The appellant’s present argument fails on all three points. The group insurance policy had a bearing only upon possible motive, not an essential element in the State’s case. The face amount of an insurance policy is not such a complex matter that the writing itselt must be examined before the amount can be determined with reasonable certainty. Finally, the record contains no indication that there was any genuine dispute about the extent of the coverage. The objection was a purely technical one, which the trial court properly overruled.
We have considered the appellant’s brief in its entirety and find no prejudicial error.
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John A. Fogleman, Justice.
This is the second appeal in this case. On the prior appeal we affirmed the action of the circuit court dismissing appellant’s counterclaim, which we found to be an impermissible counterattack upon a judgment of a Texas court which appellee sought to have registered under the Uniform Enforcement of Foreign Judgments Act [Ark. Stat. Ann. § 29-801 et seq (Repl. 1962)]. Purser v. Corpus Christi State National Bank, 256 Ark. 452, 508 S.W. 2d 549. We there concluded that the act provided a summary judgment procedure in which the judgment defendant could raise only those defenses, counterclaims and cross-complaints which might have been asserted in an action on the foreign judgment under pre-existing law of this state. The counterclaim and set-off then asserted was an attempt to recover from the judgment creditor compensatory and punitive damages in tort for alleged conversion of business and malicious prosecution. But we noted that appellant had not alleged fraud or lack of jurisdiction in his counterclaim and setoff, also noting that the pleading constituted a collateral attack on the judgment, which in the absence of allegations of fraud or lack of jurisdiction, either of the subject matter or the parties, could not be raised in the registration proceedings.
After the mandate of this court was filed in the circuit court, appellant filed an amended counterclaim, alleging lack of jurisdiction of the Texas court over the person of appellant, and praying that the judgment be set aside and held void. He also asked judgment against appellee as prayed in the original counterclaim and setoff. Appellee moved to quash (strike?) appellant’s amended pleading, asserting that the matter was res judicata, because the matter set forth therein had been argued by appellant on the prior appeal and on his petition for rehearing. Appellee responded that the dismissal of its original counterclaim was specifically entered “without prejudice” and that this court had noted the absence of any allegation of fraud or lack of jurisdiction, and, therefore, the law.of the case is that an allegation of lack of jurisdiction will support a counterclaim. The circuit court dismissed the amended counterclaim and directed appellant not to again assert, or attempt to assert it “against the plaintiff in this action”. On the same day, appellee moved for summary judgment on its petition for registration of the Texas judgment. The motion was supported by an affidavit of Henry Nuss, an attorney for appellee that, after a motion by appellant to quash service upon him in the Texas court had been overruled, appellant’s attorney requested that the trial court reconsider its order that Nuss had consented and that another hearing was held on the motion, at which appellant’s contentions were argued by his attorney. In less than ten days after the motion for summary judgment was made, the circuit judge granted the motion and registered the judgment. The reason given for the premature entry of judgment was that the judge did not feel that any meritorious defense was available to appellant.
We do not agree with appellant that the law of the case is that he may assert his counterclaim, if he alleges that the Texas court was without jurisdiction. We pointed out in the first appeal that the recovery appellant sought in the tort action was not the proper subject of a counterclaim in a proceeding to register the foreign judgment. Insofar as that phase of the case is concerned the law of the case does govern and there was no error in dismissing the counterclaim insofar as it related to the tort action. This leaves a question pertaining to the allegation that the judgment is void for want of jurisdiction of the Texas court. That question was also raised by appellant’s answer and was an issue in the case.
The motion for summary judgment was supported by the affidavit of Nuss which tended to show that the same jurisdictional question had been raised in the action in which the judgment sought to be registered was rendered. There was no contravention of the statement in that affidavit. In the absence of contravention, statements in the affidavit should be taken to be undisputed and true for the purposes of the motion. Coffelt v. Arkansas Power & Light Co., 248 Ark. 313, 451 S.W. 2d 881; Jones v. Comer, 237 Ark. 500, 374 S.W. 2d 465; Sleeper v. Sweetser, 247 Ark. 477, 446 S.W. 2d 228; Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76. If indeed they are true, Purser raised the same jurisdictional question in the Texas court he is seeking to raise here.
Summary judgment is an extreme remedy which should be granted only when it is clear that there is no genuine issue of fact to be litigated. Deltic Farm & Timber Co. v. Manning, 239 Ark. 264, 389 S.W. 2d 435; Wirges v. Hawkins, 238 Ark. 100, 378 S.W. 2d 646. The notice requirements were not complied with. They are not mere formalities and should not be treated so lightly as to deprive a party of an opportunity to present rebutting evidence and argument. Georgia Southern & F. Ry. Co. v. Atlantic Coast Line R. Co., 373 F. 2d 493 (5 Cir., 1967). Courts of the Eighth Circuit have required strict com pliance with these requirements of the rule. See Twin City Federal Savings & Loan Assn. v. Trans-America Insurance Co., 491 F. 2d 1122 (1974). The importance of notice and hearing has been emphasized by many authorities. In pointing out the reason Rule 56 FRCP requires ten days service rather than five days required by Rule 6 (d), Wright and Miller say at p. 451, Vol. 10, Federal Practice & Procedure, § 2719:
The extended time period for service of the motion is especially important in the Rule 56 context because it provides an opportunity for the opposing party to prepare himself as well as he can with regard to whether summary judgment should be entered. In theory, the additional time ought to produce a well-prepared and complete presentation on the motion to facilitate its disposition by the court. In addition, since opposition to a summary judgment motion often is a difficult task, usually involving preparation of both legal and factual arguments as well as affidavits, and since the results of failure are drastic, it is felt that the additional time is needed to assure that the summary judgment process is fair.
Yet, we have not gone so far as some courts have in holding that a trial court is without jurisdiction to render a summary judgment in less than ten days. See Adams v. Campbell County School District, 483 F. 2d 1351 (10 Cir., 1973); Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 480 F. 2d 607 (10 Cir., 1973). See also, Bowdidge v. Lehman, 252 F. 2d 366 (6 Cir., 1958); Enoch v. Sisson, 301 F. 2d 125 (5 Cir., 1962). We have already taken the position that failure to hold a hearing on such a motion is not always fatal to a summary judgment, when the party against whom the judgment is rendered is not prejudiced. Sherman v. Keene, 256 Ark. 850, 510 S.W. 2d 870.
There was error in the premature entry of the judgment in this case and unless it is manifest that the error is not prejudicial, we should reverse. Even though appellant has registered a timely and appropriate objection in this cause and has been effectively prevented from filing counter-affidavits, it seems clear that appellant has not been prejudic ed and that the circuit judge correctly stated that no meritorious defense was available to the appellant under the circumstances disclosed by the record.
In granting a motion for summary judgment, the court must find from the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed, 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. Ark. Stat. Ann. § 29-211 (c) (Supp. 1973). In considering the motion the court was not confined to consideration of affidavits filed with the motion but could search and review the entire record, including all pleadings and exhibits filed in the case. Adamson v. Bowker, 85 Nev. 115, 450 P. 2d 796 (1969); Lundberg v. Backman, 9 Utah 2d 58, 337 P. 2d 433 (1969); Davis v. Travelers Insurance Company, 196 N.W. 2d 526 (Iowa, 1972); Northwestern National Bank of Sioux City v. Steinbeck, 179 N.W. 2d 471 (Iowa, 1970); Thompson v. Abbott, 226 Ga. 353, 174 S.E. 2d 904 (1970); Brown v. Pointer, 390 Mich. 346, 212 N.W. 2d 201 (1973); Thomas v. Signal Insurance Company, 236 S. 2d 874 (La. App., 1970); Schy v. The Susquehanna Corp., 419 F. 2d 1112 (7 Cir., 1970), cert. den. 400 U.S. 826, 91 S. Ct. 51, 27 L. Ed. 2d 55. See also, Smoot v. State Farm Mutual Automobile Insurance Co., 299 F. 2d 525 (5 Cir., 1962); Goldsmith v. American Food Services, Inc., 123 Ga. App. 353, 181 S.W. 2d 95 (1971); Brevard v. Barkley, 12 N.C. App. 665, 184 S.E. 2d 370 (1971); Riggins v. County of Mecklenberg, 14 N.C. App. 624, 188 S.E. 2d 749 (1972).
There was evidence other than the affidavit of Nuss in the case showing clearly that appellant had appeared in the Texas court in which the judgment was rendered to raise the jurisdictional question appellant seeks to pursue in resisting the registration of the judgment. An exhibit in support of appellee’s motion to quash the counterclaim originally filed by appellant was a certified copy of the entire proceedings before the Texas court. It shows clearly that: on April 19, 1971, appellant through the attorney representing him here, filed a motion to quash the service on the grounds he now asserts, with a supporting brief; the motion was heard and overruled; that order was set aside, the motion reheard and again denied.
In his abstract of the record on the former appeal, appellant included the following statement:
In due time, the nonresident defendant, specially appearing for the sole and only purpose of questioning the jurisdiction of the Texas Court, filed a Motion to Quash service on the grounds that he was a nonresident and did not sign the postal return receipt, nor served with copies of the notes (TR. 29-30). But this Motion was overruled on July 14, 1972 (TR. 32-33).
Defendant did not plead further, and on August 29, 1972, the Texas Court entered a judgment by default against defendant in the sum of $72,825.33, with interest and costs. (TR. 34).
It was proper for the court to consider the exhibit to the motion to quash. When we consider it, we agree with the circuit judge that no meritorious response was available to appellant. The admitted appearance of appellant in the Texas court for the purpose of quashing service would have had the effect of giving that court jurisdiction of his person for the purpose of quashing service on any ground that he asserted or might have asserted in his motion. Since he appeared in that court for that motion, he is estopped from asserting in this action not only the reasons alleged in his motion there, but any reasons he might have set up as grounds for quashing the service and the judgment of that court on the question is conclusive and not subject to collateral attack in the Circuit Court of Sebastian County. Ederheimer v. Carson Dry Goods Co., 105 Ark. 488, 152 S.W. 142.
In view of the entire record and appellant’s statement, we have no hesitation in holding that the premature entry of judgment was not prejudicial to any right of appellant, since the jurisdictional question was the only potential issue.
The judgment is affirmed. | [
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Conley Byrd, Justice.
At issue in this Workmen’s Compensation litigation are the rights and priorities between the decedent’s widow and his two dependent children by a prior marriage to the compensation benefits. The record shows that at the time of the death of Gary L. Byars he had an average weekly wage of $160. He left surviving him his widow, the appellee Sherri Jean Byars, age 21 and two children by a prior marriage, William Edward Byars, born August 27, 1968 and Gary Lynn Byars, Jr., born October 16, 1970. The Commission applied a “pro rata” method of appropriating the maximum $63 benefit by awarding the widow $33.92 per week and awarding to the mother of the children, co-appellant Myrtha Lynn Cox, for the use and benefit of the children the sum of $29.08 per week. The Commission also denied the widow’s application for a lump sum settlement. The circuit court reversed the Commission and directed that the widow was entitled to 35% of the decedent’s average weekly wage or $56.00 per week and that the award to the children should be reduced to $7.00 per week. The circuit court also held that the Commission abused its discretion in denying the widow’s application for a lump sum award. Both the employer and Myrtha Lynn Cox have appealed.
The Workmen’s Compensation Act (Int. Meas. 1948 No. 4) with respect to lump sum settlements, Ark. Stat. Ann. § 81-1319 (k) (Repl. 1960), provides:
“Whenever the Commission determines that it is for the best interest of the parties entitled to compensation . . . the liability of the employer for compensation may be discharged by the payment of a lump sum equal to the present value of all future payments of compensation computed at four (4%) per centum discount, compounded annually. ...”
In view of the tender age of the two minor children by the previous marriage and the fact that the widow was only 21 at the time of the hearing, we cannot say that the Commission abused its discretion in denying the lump sum award.
With respect to the amount of compensation to be paid to the beneficiaries, The Workmen’s Compensation Act, Ark. Stat. Ann. § 81-1315 (Repl. 1960 [Int. Meas. 1948 No. 4 § 15]) provides:
“(c) Subject to the limitations as set out in section 10 [§ 81-1310] of this act, compensation for the death of an employee shall be paid to those persons who are wholly dependent upon him in the following percentage of the average weekly wage of the employee, and in the following order of preference.
First. To the widow if there is no child, thirty-five (35) per centum, and such compensation shall be paid until her death or remarriage.
To the widower if there is no child, thirty-five (35) per centum, and such compensation shall be paid during the continuance of his incapacity or until remarriage.
Second. To the widow or widower if there is a child, the compensation payable under the First above, and fifteen (15) per centum on account of each child.
Third. To one child, if there is no widow or widower, fifty (50) per centum. If more than one child, and there is no widow or widower, fifteen (15) per centum for each child, and in addition thereto, thirty-five (35) per centum to the children as a class, to be divided equally among them.
Fourth. To the parents, twenty-five (25) per centum each.
Fifth. To brothers, sisters, grandchildren and grandparents, fifteen (15%) per centum each.
(d) . ..
(e) Apportionment of benefits. Where, because of the limitation in subsection (c) of this section, a person or class of persons cannot receive the percentage of compensation specified as payable to or on account of such persons or class, there shall be available to such person or class that proportion of such percentage as when added to the total percentage payable to all persons having priority or preference, will not exceed a total of sixty-five (65%) per centum, which proportion shall be paid (1) to such person, or (2) to such class in equal shares unless the Commission determines otherwise in accordance with the provisions of subdivision (f) of this section.”
When this Workmen’s Compensation claim arose, Section 10 of The Workmen’s Compensation Act, (Ark. Stat. Ann. § 81-1310 (b) [Supp. 1973]), had been amended to read:
“Compensation payable to the dependents for the death of an employee shall not exceed sixty-five (65) per centum of the employee’s average weekly wage at the time of the accident, and shall not be greater than sixty-three dollars ($63) per week. ...”
A look at subsection (c), supra, shows that the First preference is for the widow only “if there is no child.” Clearly the widow here does not fit into the First classification of preference because here there are two children involved. The Second classification reads “Second, to the widow or widower if there is a child ... .” A widow with a child then, under the plain words of the statute, clearly falls into the Second classification. The statute continues “ . . . the compen sation payable under the First above ... . ” Here the widow is given the thirty-five (35) percent compensation as provided in the First classification. She is not given the priority of the First classification. She is given only the thirty-five (35) percent compensation. Continuing with the statute “ . . . and fifteen (15) per centum on account of each child.” Note that the statute uses the word “and”. It does not use other words that would show a preference of the widow over the children. It places the widow and the children upon equal footing. They are both given the same priority of classification. The right of one is not superior to the right of the other. However, the widow and the children are given priority over other claimants in the Third, Fourth and Fifth classifications.
Since the widow and the deceased’s dependent children both belong to the “Second” order of preference then subsection (e) supra, provides the method for apportioning the compensation benefits when the total allowances under subsection (c), supra, exceed the maximum disability benefits payable under Section 10, supra.
To avoid the apportionment of any benefits payable to her, the widow relies upon the construction given to act 319 of 1939, also known as “The Workmen’s Compensation Law” in Gunnells v. Gunnells, 203 Ark. 632, 158 S.W. 2d 54 (1942). In that case the deceased employee was survived by a widow and five minor children. The facts do not state definitely but apparently the deceased’s children were also the children of the widow. The stipulated facts showed that decedent’s average weekly wage was $34.61 and that 65% thereof would exceed the $20.00 maximum then allowed by The Workmen’s Compensation law. In holding against the contentions of the appellant as next friend of the children and in favor of the widow, we said:
“The appellants contend that the commission and the lower court erred in holding that there were no payments due to the minor children in their own right, and also in holding that the amount payable to the widow should not be reduced to her pro rata part of the total payment due as provided in § 15 (e). We are unable to agree with these contentions. While this act is not as clear and definite as it might be, our construction of the language in § 15 and all subdivisions thereof coincides with the holding of the commission and the lower court. Under this construction the right of a widow to receive 35 per cent of the average weekly wages of her deceased husband, provided that sum does not exceed $20 per week, is prior to all other claims. In addition to the money payable to a widow in her own right, where r,he qualifies under paragraphs (1) and (3) of subsection (c) she is entitled to receive additional compensation of 10 per cent of the average weekly wages for each minor child under 18 years of age, provided the total payment shall not exceed 65 per cent of the average weekly wages of the deceased, and provided the payment shall in no event exceed $20 per week.
In view of our interpretation of the pertinent language of this act. we have concluded that the appellee widow would have been entitled not only to 35 per cent of the average weekly wages of her deceased husband, but also to the additional 30 per cent thereof claimed for the children, had said 65 per cent of the average weekly wages of the deceased not exceeded the maximum allowance of $20 per week. Since 65 per cent of the average weekly wages of her deceased husband at the time of his fatal injury exceeded $20 per week, she is entitled to the full $20 per week.”
While we must admit that our present Section 15 (c) is similar to the provisions of Act 319 of 1939, that was involved in the Gunnells case, supra, there is still some difference in the language of the two Acts. For instance we find it impossible to construe the present Act as permitting a widow to qualify under both the First and second priorities of subsection (c). In fact it would appear that if the drafters of subsection (c) had intended for the widow to take Frst priority over all other claimants, then there would have been no need to put her in the Second order of preference nor any reason to again mention the widow’s rights.
Furthermore, should we consider our present subsection (c) to be identical with the provisions of Act 319 of 1939, we would overrule the Gunnells case. Under that decision, a teenage widow could cut out all Workmen’s Compensation benefits to a whole houseful of minor children by a previous marriage any time the deceased employee’s average weekly wage exceeded $200. We cannot believe that the intent of Initiated Measure 1948, No. 4 was to disenfranchise all dependent children by a prior marriage in favor of a second wife.
Reversed and remanded with directions to reinstate the Commission’s order.
Fogleman, J., dissents. | [
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PER Curiam.
On May 14, 1997, Danny Lee Ragsdale was am. guilty by a jury in the Circuit Court of Greene County of terroristic threatening in the second degree and sentenced to a term of seventy-two months’ imprisonment. An appeal bond in the amount of $25,000 was set. Ragsdale’s retained attorney, Richard Grasby, filed a notice of appeal on May 28, 1997. An appeal was not perfected, and Ragsdale now seeks to proceed with a belated appeal of the judgment pursuant to Rule 2(e) of the Rules of Appellate Procedure — Criminal, which permits a belated appeal in a criminal case in some instances.
Our Administrative Order No. 8, § III, provides that upon conviction and sentencing of the defendant the prosecuting attorney shall be responsible for completion of the judgment and commitment order. Administrative Order No. 8, § III, further provides that the judgment and commitment order shall be submitted to the circuit judge for signature and filed with the clerk. For some reason not disclosed by the partial record lodged with the motion for belated appeal, the judgment and commitment order in this case was not entered-of-record with the circuit clerk until October 7, 1999, approximately twenty-nine months after sentence was pronounced. We take judicial notice that Ragsdale was not committed to the Arkansas Department of Correction to begin serving his sentence until February 8, 2000, which suggests that he remained free on bond until that time.
Although Rule 2 provides that a motion for belated appeal must be filed within eighteen months of the date sentence was pronounced in those cases where the judgment was not entered within ten days of the pronouncement of sentence, we will consider Ragsdale’s motion for belated appeal because his attorney had filed a notice of appeal and an appeal bond had been set. Under these circumstances, Ragsdale may well have believed that the appeal was ongoing.
At the time Ragsdale was convicted, Ark. R. App. P.— Crim. 2(b) provided that a notice of appeal was invalid if filed before the judgment was entered. Nevertheless, it is clear from the filing of the notice of appeal and the setting of an appeal bond that Grasby knew his client desired to appeal. See Gay v. State, 288 Ark. 589, 707 S.W.2d 320 (1986). Rule 16 of the Rules of Appellate Procedure — Criminal provides in pertinent part:
Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.
Under no circumstances may an attorney who has not been relieved by the trial court abandon an appeal where he is aware that the convicted defendant desires to appeal. The direct appeal of a conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to consider his first appeal when counsel has failed to follow mandatory appellate rules. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994); see Evitts v. Lucey, 469 U.S. 387 (1985). To extinguish a defendant’s right to appeal because of his attorney’s failure to follow rules would violate the Sixth Amendment right to effective assistance of counsel. Evitts v. Lucey, supra. See also Pennsylvania v. Finley, 481 U.S. 551 (1987). It cannot be determined from the partial record whether Mr. Grasby took any steps to learn whether the notice of appeal he filed was timely or whether the record was being prepared by the court reporter. Indeed, it appears from the partial record before us that once Ragsdale was convicted and released on appeal bond, neither Grasby nor the prosecutor did anything further with respect to the matter until October 7, 1999, when the prosecutor apparently filed the judgment with the clerk.
Because the proper disposition of the motion for belated appeal in this case requires findings of fact which must be made in the trial court, we remand this matter to the circuit court for an evidentiary hearing on the issues of why the judgment and commitment order was not promptly filed with the clerk, whether Mr. Grasby abandoned the appeal, and whether Ragsdale knew that the appeal was not being pursued.
Furthermore, because Ragsdale has appended to the motion for belated appeal an affidavit of indigency and seeks to proceed in forma pauperis if he is allowed to proceed with an appeal, the trial court is also directed to take testimony on whether Ragsdale is now indigent. The burden of estabhshing indigency is on the defendant claiming indigent status. In considering whether an appellant is indigent, which is a mixed question of fact and law, some of the factors to be considered are: (1) income from employment and governmental programs such as social security and unemployment benefits; (2) money on deposit; (3) ownership of real and personal property; (4) total indebtedness and expense; (5) the number of persons dependent on the appellant for support; (6) the cost of the transcript on appeal; and (7) the likely fee of retained counsel for an appeal if counsel’s fee has not already been paid. Hill v. State, 305 Ark. 193, 805 S.W.2d 651 (1991). Able-bodiedness, the level of education of the appellant, and whether the appellant is incarcerated are also to be considered. An appellant need not be destitute to qualify as an indigent. Hill, supra.
The trial court is directed to enter Findings of Fact and Conclusions of Law within sixty days and submit the findings and conclusions to this court with the transcript of the evidentiary hearing.
Remanded.
Oil June 24, 1999, the rule was amended by per curiam order to provide that a notice of appeal filed after the verdict but before judgment is entered is timely. | [
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Frank Holt, Justice.
Appellant instituted this eminent domain action for the acquisition of some of appellees’ lands which were needed for the relocation of an existing highway fronting upon appellees’ homesite. The appellee, Gerald Cook, and his expert value witness estimated appellees’ damages at $10,000 and $7,000 respectively. Appellant’s witness estimated damages at $1,500. The jury awarded $8,-750 as just compensation. For reversal appellant contends that the “before” valuation of the landowner and his value witness, as revealed on cross-examination, is devoid of a fair and reasonable basis. Therefore, there is no substantial evidence to support the verdict.
In determining whether a verdict is supported by substantial evidence we review the testimony in that light which is most favorable to the appellee and indulge all reasonable inferences favoring the support of the judgment. Ark. Hwy. Comm'n v. Duff. 246 Ark. 922, 440 S.W. 2d 563 (1969). Appellee lived in the area all of his life and acquired the property in question approximately nine months before appellant began acquisition proceedings. He purchased the twenty acres involved as a homesite as well as pasture land for his cattle. The appellant, in relocating the highway from the front of appellees’ property, acquired a strip of land containing 2.17 acres which bisected the twenty acre tract. This resulted in leaving appellees’ home, his barn and other improvements on approximately four acres that existed between the old road and the new highway. This left approximately thirteen acres, his pasture land, completely separated from his barn and other facilities.
The appellee landowner testified that he had purchased the twenty acre tract for $10,000 and estimated the fair market value at the time of the taking nine months later at $25,000. On cross-examination he justified this before taking value on the basis that he had spent $6,000 improving the home before moving into it, had built a pond and had “cleaned up” some of the property. The relocation of the road had cut through and destroyed his pond. He lost the use of his barn for the thirteen acre residual tract except by transpor ting hay across the new highway or driving the cattle across it to the barn. According to him he would have to be “hauling all the time.” “I wouldn’t have time for nothing else.” It was necessary to lease other lands to pasture his cattle. He testified the price of property “goes up each year around here” and he considered himself “lucky” to have purchased the twenty acre tract for SI0,000.
Appellant in its original brief asserts that this testimony does not constitute a fair and reasonable basis for the landowner’s before value estimate. Appellant agrees that a landowner is a competent witness to testify as to the value of his land simply because he owns it. Ark. State Hwy. Comm’n v. Jones, 256 Ark. 40, 505 S.W. 2d 210 (1974). However the landowner must relate a satisfactory explanation on cross-examination to justify his value estimate. Ark. Hwy. Comm’n v. Duff, supra. In the case at bar the thrust of appellant’s argument relates primarily to the recent purchase of the property and the asserted inflated value placed upon it by appellee at the time of appellant’s acquisition. The difference between the recent purchase price of the property and the before value placed upon it by the landowner is only one item to be considered. The most critical thing that can be said about this disparity is it would tend to weaken the landowner’s opinion which is a credibility factor for the jury to determine. We said in Ark. State Hwy. Comm’n v. Russell, 240 Ark. 21, 398 S.W. 2d 201 (1966), the cross-examination must elicit evidence that demonstrates a witness “had no reasonable basis whatever for his opinion evidence.” Certainly it was not demonstrated in the case at bar there was no fair and reasonable basis whatever to support the landowner’s opinion.
Appellant also contends that the opinion of the expert value witness was not predicated upon a fair and reasonable basis with respect to the “before” value. He attributed $8,500 as the value to the improvements and $13,000 for the land. The court, on appellant’s motion, disallowed his estimate of improvements as he was not sufficiently familiar with its recent condition. It appears that this witness was a lifelong resident of the county and had been engaged for 46 years in the abstract business. At the same time he had kept himself informed about land transactions in the area and had “traded” land around this particular area including pasture land, homesites, etc. He said the land in question was approximately two miles or three minutes from the city limits of the county seat and that “land is very hard to find around Hampton.” On cross-examination he placed a value of $650 an acre on the land. Suffice it to say that this witness testified with respect to similar sales that a two acre homesite within one-half mile of appellees’ land sold for about $600 an acre and five acres in the vicinity of appellees’ property sold for $1,000 an acre. It appears that there were no improvements upon these two tracts of land. The similarity in size is only one factor in considering comparable sales. We are unwilling to say that appellent’s cross-examination of this witness destroyed his opinion evidence of any fair and reasonable basis. Therefore, the court properly refused to strike his testimony.
Appellant next asserts that the court erred in refusing to remove from the jury’s consideration the price paid for land by a condemnor (the county) in the vicinity. It is true that in Yonts v. Public Service Company of Ark., 179 Ark. 695, 17 S. W. 2d 886 (1929), we held it was impermissible on direct examination to elicit evidence as to what a condemnor paid for other lands in the area in order to establish the true market value of lands being acquired. However, in Ark. State Highway Comm ’n v. Kennedy, 234 Ark. 89, 350 S.W. 2d 526 (1961), we held that, although what a condemnor paid for property in the area is not a fair criterion of the true market value, the rule is not a prohibition against that type of knowledge the witness may possess. There we held that such value evidence elicited on cross-examination was not reversible error inasmuch as the court gave an admonitory instruction to disregard it. In Ark. Power & Light v. Harper, 249 Ark. 606, 460 S.W. 2d 75 (1970), testimony was elicited from a witness on cross-examination concerning a purchase made in the area by a condemnor. There we held the court was correct in refusing to strike the testimony inasmuch as “ [0]ne is not permitted to speculate by participating in the development of evidence and then demanding that it be stricken when it proves unfavorable.” We further observed that “perhaps appellant [condemnor] would have been entitled to a similar [admonitory] instruction had it so requested.” There it was not demonstrated whether the purchase by the condemnor in the area was by a condemnation proceeding or negotiation. Neither is it demonstrated in the case at bar. Additionally, here the value witness admittedly testified that in forming his opinion he did not take into consideration the purchase by the county of the two acre tract for $1,500 per acre. On further cross-examination he testified that a three acre tract in the vicinity of the county purchase sold for $1,-650 per acre or in excess of the county purchase per acre.
In Russell, supra, we held it was not prejudicial error where the condemnor elicited on cross-examination that the witness had taken into consideration an inadmissible offer in forming his opinion. There we said that during cross-examination one “is not entitled to embark upon a fishing expedition with immunity from any unfavorable information he may elicit. He acts at his peril in putting a question that may evoke an answer damaging to his own case.” In approving this right of a witness on cross-examination to say he had considered an offer of sale in forming his opinion, we overruled to that extent Ark. Highway Comm’n v. Wilmans, 236 Ark. 945, 370 S.W. 2d 802 (1963).
In the case at bar, as indicated, and in Harper, supra, the inadmissible testimony was elicited on cross-examination and the manner of acquisition by the public agency was not shown. Additional factors exist here. The witness admittedly did not consider the county purchase in forming his opinion. The witness further testified on cross-examination that a sale in the vicinity of the county purchase exceeded in purchase price per acre that paid by the county. Finally the court fully instructed the jury as to the meaning of the term “fair market value” as being a negotiated transaction between a willing seller and a willing buyer with neither being forced to sell or buy. In these circumstances we cannot say with confidence that the failure to admonish the jury as requested by appellant was prejudicial. At most the asserted error was harmless.
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Charles M. Conway, Special Justice.
The appellant, Sam A. Weems, has appealed from a judgment of the Circuit Court of Arkansas County, Northern District, rendered on November 14, 1973, finding him guilty of unprofessional conduct as an attorney at law, canceling his attorney’s license and barring him from engaging in the practice of law in this State.
From the entire record including the pleadings and transcript of testimony in this case, we find the pertinent facts to be as follows:
The Supreme Court Committee on Professional Conduct, hereinafter referred to as the “Committee”, after receiving information, commenced an investigation of the alleged professional misconduct of Sam A. Weems, a licensed attorney in Arkansas engaged in the practice of law principally in Prairie County and Arkansas County. The appellant was notified of the charges of professional misconduct and that a hearing would be held before said Committee. A hearing was had before the Committee where the appellant appeared in person, the charges were fully presented and thereafter the Committee filed a complaint in the Circuit Court of Arkansas County, Northern Division. A trial being had, judgment was entered against the appellant, which is the subject of this appeal. The complaint alleged three (3) charges of gross professional misconduct against the appellant; Charge I arising from representation of Roe Minton, sometimes referred to as “Minton”, Charge II arising from representation of Leroy, Catherine and Vivian Van Houten, sometimes referred to as “Van Houten”, and Charge III arising from representation of Thurston National Insurance Company, sometimes hereinafter referred to as “Thurston”.
Roe Minton Charge.
Roe Minton, of Hazen, Arkansas, employed the appellant to represent him in a claim on a health insurance policy against the Prudence Mutual Casualty Company, hereinafter referred to as “Prudence”. The appellant thereafter, as attorney for Minton, filed suit against Prudence and on January 3, 1970, secured a consent judgment in favor of Roe Minton for $5,000.00. Prudence was placed in receivership and on May 17, 1971, the appellant received a check from the receiver for $5,000.00, payable to the order of “Roe Minton and Sam A. Weems, Attorney”. Appellant did not promptly notify Roe Minton of the receipt of these funds, and on the same day caused an endorsement of Roe Minton’s name to be placed on the draft and deposited it in the appellant’s checking account at the Citizens Bank of Carlisle, Carlisle, Arkansas, hereinafter referred to as “Carlisle Bank”. Roe Minton did not authorize the endorsement of the draft. (Appellant contends otherwise as will be hereinafter discussed.) The checking account in the Carlisle Bank was not identified as a trust account and was the depository of other funds belonging to the appellant and checks were drawn by appellant on said account for the payment of monies owed by the appellant to other clients, personal expenses, and business expenses. Thereafter, Roe Minton, in order to pay his bills, borrowed Twelve Hundred Dollars ($1,200.00). In January, 1972, the appellant, with Roe Min-ton and Mrs. Minton, at a cafe in De Vails Bluff in discussing Minton’s insurance claim stated: “Now you understand your money is up there but we are not going to accept it until they pay you the back premiums and interest on those back premiums that they are supposed to pay.” The appellant did not say that he had received the money. Two weeks later, on January 22, 1972, Roe Minton died without receiving payment from the appellant. On the Saturday following the burial of Roe Minton, Mrs. Minton called the appellant to inquire if Roe Minton’s death would interfere with the collection of the money from the insurance company and the appellant stated, “No ma’am, I have already contacted them and they are ready to settle, and you should be getting a check in a few days”. When the check did not arrive from the appellant, Dwight Minton, son of Roe Minton, went to the office of Mr. Max Sears, the receiver for Prudence, at which time he was shown the original check for $5,000.00 made by the receiver payable to Roe Minton and Sam A. Weems, attorney, which had been deposited in Sam Weems’ account in the Carlisle Bank on May 17, 1971. Thereafter, on February 24, 1972, the appellant caused to be delivered to Mrs. Minton a check payable to her in the amount of $3,333.34, drawn on the trust account of Sam A. Weems, attorney, with the notation thereon “insurance settlement less legal fees”. From the date of the receipt of the $5,000.00 from the receiver of Prudence on May 17, 1971, until delivery of the check for $3,-333.34 to Mrs. Minton on February 24, 1972, there were occasions when the funds on deposit in the Carlisle Bank and all other accounts of appellant in other banks, including a trust account in the Farmers and Merchants Bank, did not have sufficient funds therein to pay the $3,333.34 owed to Roe Minton or his estate.
The appellant did not have the authority to use Roe Minton’s money, and the appellant borrowed money in order that the check sent to Mrs. Roe Minton could be honored. The appellant had a trust account in the Farmers and Merchants Bank in Des Arc, Arkansas, from the time the receiver’s check was deposited in Sam Weems’ personal account until February 24, 1972, and the appellant knew the purpose of a trust account.
The Van Houten and Thurston Charges.
Catherine Van Houten and Vivian Van Houten, wife and daughter respectively of Leroy Van Houten, were injured while driving in a motor vehicle belonging to Leroy Van Houten as a result of a collision with Loretta Thompson. Leroy Van Houten employed the appellant as an attorney to represent Van Houten and his wife and daughter in their claim against Loretta Thompson. Leroy Van Houten’s automobile was insured by Thurston National Insurance Company, and it employed the appellant to represent it in a subrogation claim for damage to the motor vehicle against Loretta Thompson, who was insured by Allstate Insurance Company, hereinafter referred to as “Allstate”. On July 14, 1970, appellant filed suit in Prairie Circuit Court as attorney for the Van Houtens for their claims, and as attorney for Leroy Van Houten on the subrogation claim of Thurston. Subsequent to the filing of the suit, the appellant and the adjusters for Allstate negotiated for a settlement of the claims of all Van Houtens, including the subrogation claim of Thurston. On September 30, 1971, Allstate wrote three drafts and thereafter delivered the same to the appellant. One draft in the amount of $5,300.00 was payable to “Leroy and Catherine Van Houten, individually and as husband and wife, Route 1, Stuttgart, Arkansas; and their attorney, Sam Weems, Des Arc, Arkansas”. One draft in the amount of $2,-500.00, was payable to “Vivian Van Houten, Route 1, Stuttgart, Arkansas; and her attorney, Sam Weems, Des Arc, Arkansas”. One draft in the amount of $1,205.93, was payable to “Thurston National Insurance Company, 3102 West Markham Street, Little Rock, Arkansas; and their attorney, Sam Weems, Des Arc, Arkansas”. Each draft reflected thereon that it was in full settlement of any and all claims . . . arising out of the accident on June 17, 1970, in Little Rock, Arkansas. The appellant endorsed his own name on each of said drafts and thereafter, without notice and without authority, endorsed the names of Vivian Van Houten, Thurston National Insurance Company, and Leroy Van Houten and Catherine Van Houten on their respective drafts. The endorsements of the clients’ names were written so as to appear to not have been made by the appellant in order that the bank would not question the endorsements. The appellant deposited all three drafts in his account in the Carlisle Bank. None of the clients authorized the endorsement of the drafts. The checking account in the Carlisle Bank was the same account used for the deposit of the Roe Minton draft.
At the time appellant deposited the three drafts into his account at the Carlisle Bank and commenced using the funds as his own, neither the Van Houtens nor Thurston had been advised by appellant of the proposed aggregate settlement, the total amount of the settlement, nor the participation of each client in the settlement. On October 28,1971, Allstate by letter to Vivian Van Houten requested that she confirm the issuance of the draft of September 30, 1971, to her and Sam Weems in the amount of $2,500.00. Leroy.Van Houten on behalf of Vivian Van Houten replied that she had no knowledge of the draft and requested advice as to “why this claim has not been settled and if any offer of settlement has been made by you in regard to the damage to my father’s car and in regard to the injury to my mother”. Thereafter, Leroy Van Houten was requested by the appellant to execute a release for all the Van Houten claims for the sum of $6,-000.00, which amount the appellant offered to pay by personal check. Mr. Van Houten refused the offer and thereafter the appellant asked the Van Houtens to execute a release for $7,800.00. Leroy Van Houten became suspicious as to how much money Allstate was willing to pay for the claims. Leroy Van Houten met with Sam Weems and John Butram, adjustor for Allstate, on December 29, 1971, at which time Mr. Butram explained what he was willing to pay on behalf of Allstate for the settlement of all of the Van Houten claims and the Thurston claim. Mr. Van Houten did not agree to settle and thereafter on December 30, 1971, met with Mr. Butram in his office in Little Rock and for the first time saw copies of the drafts Allstate had issued on September 30, 1971, which had been endorsed and deposited by the appellant in his account. Mr. Van Houten secured the withdrawal of the appellant as his attorney and thereafter settled his claim against Allstate for the amount of $7,800.00 which Allstate paid the Van Houtens. The appellant repaid Allstate $7,500.00 on December 22, 1971, and the remaining $300.00 shortly thereafter.
No representative of Thurston ever saw the original draft from Allstate payable to it, and no representative of Thurston authorized the endorsement of the draft by appellant. Thurston had no knowledge that the claim had been settled until December 14, 1971, when they were so advised by Mr. Butram of Allstate. It was not until January 24, 1972, that Sam A. Weems paid Thurston the sum of $803.96 by check drawn on his account at the Carlisle Bank, which amount represented the balance due Thurston on its total claim after subtracting therefrom one-third (1/3) as attorney’s fees. Thurston never complained to the Committee on Professional Conduct.
The trial court concluded that Mr. Weems had violated Arkansas Statute §25-401, (Repl. 1962), Canon 1, Canon 9, Disciplinary Rules 1-102(A) (4), (6); 9-102(A) (2); and 9-102(B) (1), (3), (4), on each of the three (3) Charges, and also Canon 5 and Disciplinary Rule 5-106 on Charges II and III. From our examination of the entire record in this case, we are unable to say that the findings of the trial court, and its judgment entered thereon, were against the weight of the evidence, except for violation of Canon 1 in Charge I. Violation of Canon 1 was not alleged in Charge I.
The appellant contends that the scope of appellate review should be wider than heretofore existing on appeal from the decisions of the circuit and chancery court, and cites Rule V of the Rule of the Supreme Court, Regulating Professional Conduct of Attorneys at Law as follows: “. . . On appeal, the matter shall be heard de novo upon the record made before the trial judge, and this court shall pronounce judgment as in its opinion, should have been pronounced below.” Appellant contends that this means the appellate court is in no way committed to findings of the court below even if supported by the evidence, and should make independent findings of fact, drawing its own conclusions from the evidence, except where there is a conflict in direct facts and only the demeanor and credibility of the witness is the remaining gauge upon which a decision could result.
In Hurst vs. Bar Rules Committee of the State of Arkansas, 202 Ark. 1101, 155 SW 2d 697 (1941), the court held that proceedings for disbarment of an attorney are not criminal but civil in their nature, and as such are governed by the rules applicable to all civil actions, and hence it is required that the material allegation in such cases be established only by prepondernace of the evidence and not beyond a reasonable doubt. Further, the court said: “it seems to us that, in view of the present rules of procedures relating to disbarment, this court on appeal should give even greater weight to the findings of the lower tribunal. . .”. We reaffirm the teachings in the Hurst case, supra.
This Court’s proper task is to inquire whether the determination of the trial court was contrary to the weight of the evidence, and must affirm the judgment of the trial court if it is not against the preponderance of the evidence.
The appellant contends that he promptly notified Roe Minton of receipt of the $5,000.00 check from the receiver of Prudence, and that he had oral authority from Minton to endorse his name on the check and deposit the same and to hold the money until a complete collection could be had. A close reading of the transcript does not support the contention of the appellant. Appellant testified, “My arrangement with Mr. Minton was that when a check would come in that he would sign it and I would sign it and we would have to let it clear before we distributed any funds. We notified Mr. Min-ton of this one and he called me right after, as I recall . . . ”. Further, in appellant’s testimony, he testified as follows, “As soon as he received this particular letter, (defendant’s exhibit 10), he called me . . . ”.
The appellant received the $5,000.00 check on May 17, 1971, as reflected in a letter from the appellant of that date to the receiver which states, “I am in receipt this date of your check in the amount of $5,000.00 re: Mr. Minton’s claim.” The check for $5,000.00 reflects the endorsement of the Citizens Bank on May 17, 1971, and was therefore deposited on or before that date. The appellant testified that he gave written notification, defendant’s exhibit 10, to Roe Minton and that thereafter Minton called and gave authority to appellant to endorse and deposit the check. Had the appellant written and mailed the letter to Minton as he claimed, notifying him of receipt of the check on May 17, 1971, the same day he deposited the check in the Carlisle Bank, any call made by Roe Minton authorizing such deposit could only have been made after the written notification had been received by Minton by mail.
Also, defendant’s exhibit 10, which the defendant introduced in trial, was dated May 19, 1971, which the appellant stated was not the true date of the letter. The testimony also reveals that his usual practice with regard to copies was to make a tissue copy or to make a photocopy of the original letter. The proffered exhibit was neither a tissue copy of the original letter nor a photocopy of the original letter. It was a photocopy of a tissue copy. The learned trial judge gave no credence to defendant’s purported notice, finding that it was no doubt a fabrication and having been made as an afterthought in an attempt to implement a cover-up. Considering all the evidence with regard to this exhibit, we conclude that the circuit judge was not in error in finding that no notice of the receipt of the funds was given Roe Minton and that the appellant was unauthorized to endorse and deposit the check in his account.
With regard to notice of receipt of the funds and authority to endorse the check payable to the Van Houtens, the Van Houtens testified that they had no notice of receipt of the funds and that they did not authorize the endorsement of the check by the appellant. Although the appellant testified that he did give notice and was authorized by Leroy Van Houten to endorse the checks, ali the circumstances of the case, including the fact that Leroy Van Houten wrote Allstate inquiring about his settlement and that of his wife and daughter, lead us to conclude the circuit judge was not in error in finding no notice to and no authority from the Van Houtens.
Appellant testified that, with regard to Thurston, he had authority by reason of prior dealing with Thurston wherein he represented them and they had authorized him to endorse checks payable to them. Appellant did not produce other evidence of prior representation of Thurston. The representatives of Thurston testified that the appellant had never represented Thurston prior to this matter, and that no one in authority had authorized the endorsement by appellant and deposit of the check in the appellant’s account. They stated further that the first knowledge they had of the receipt of the check was when they were notified of it by Allstate. We conclude that the circuit judge was not in error in finding that there was no notice to nor authority from Thurston.
The appellant contends that the committee must elect to either proceed according to Ark. Stats. Ann. § 25-411 and § 25-413 (Repi. 1962) or by the Rules Regulating Professional Conduct of Attorneys, and must state such election formally.
Rule X of the Rules Regulating Professional Conduct of Attorneys is as follows:
“RULES AND SUPPLEMENT TO STATUTES. The rules adopted shall not be deemed exclusive of, but as supplemental to, the statutes of the State of Arkansas. The committee may invoke the statutes or proceed hereunder if it should elect to do so.”
Appellant has cited no authority to support his position that election must be stated. It is apparent in the case at bar, that the Committee chose to proceed as provided by the Rules, and a formal statement of election is unnecessary.
The power to regulate and define the practice of law is a prerogative of the Judicial Department as one of the divisions of government. Arkansas Bar vs. Union National, 224 Ark. 48, 273 SW 2d 408 (1954). Amendment 28 to the Constitution of the State of Arkansas reads,
“The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.”
The Court has adopted substantive rules relating to professional conduct and procedural rules relating to the enforcement thereof. The acts of the Legislature with regard to regulating and defining the practice of law are to be considered to be in aid of the judicial prerogative and not in derogation thereof. Arkanaas Bar vs. Union National, supra.
Appellant next contends that “essential facts” to the jurisdiction must appear in the record, and that the Rules require that the complaint “shall set forth the specific facts constituting the alleged misconduct”, citing Monks vs. Duffle, 163 Ark. 118, 259 SW 735, (1924). The complaint alleges that the Supreme Court Committee on Professional Conduct, as authorized by this Court, is charging in the Circuit Court of Arkansas County, the appellant, a licensed attorney engaged in the practice of law in Prairie County and Arkansas County, with gross professional misconduct. It further states that the complaint was filed after a hearing of which the appellant received notice, and at which appellant appeared, and the matters pertaining to the charges were fully presented and the committee found violation of statutes, Canons, and Disciplinary Rules. The complaint further charges that the appellant was guilty of gross professional misconduct in representing a stated client against a stated third party concerning a stated claim, for a stated period of time at a stated place, and that with regard to said representation his conduct violated certain statutes, Canons, and Disciplinary Rules proscribed by the Supreme Court. The “essential facts” required by Monks vs. Duffle, supra, appear in the record.
Does the complaint “set forth the specific facts constituting the alleged misconduct” required by Rule IV of the Rules Regulating Professional Conduct of Attorneys? The final paragraph of each of the three charges in the complaint alleges violation of a particular statute, Cannons, and Disciplinary Rules. The final paragraph of each of the three charges clearly relates to the acts of appellant in his representation of the stated client in a particular matter. Each charge informs the appellant of “specific facts” with sufficient clarity in order to permit him to prepare his defense, and, once the charge is determined, to constitute res judicata of the matter under consideration Rule IV of the Rules Regulating Professional Conduct of Attorneys is satisfied.
The appellant contends that Rule IV requires that the basis of the original complaint of professional misconduct, i.e. affidavit of complaint or statement that a member of the committee had information, is required. We do not agree. As pointed out in Armitage vs. Bar Rules, 223 Ark. 465, 266 SW 2d 818 (1954), the purpose of the procedure before the committee is to sift substantial charges from those without serious implication, and where serious, to allow the attorney a hearing, and if found in violation to bring formal charges by complaint. The rules have as their purpose the creation of a Committee to maintain the highest standards of ethical conduct in the practice of law. This purpose can best be served if there is free and easy access of information regarding the activities of members of the Bar. It is for this reason that the rules permit investigation on information from any source. Investigation by the Committee may be commenced without an affidavit being signed by the client. The nature or the form of the information which causes the committee to commence the investigation is not jurisdictional and a statement of the source is not required.
The appellant contends that with respect to alleged violations of Disciplinary Rules l-102a(4)4 and (6)6, the evidence which would show that appellant “engaged in conduct involving dishonesty, fraud, deceit or misrepresenation, or engaged in any other adverse conduct” is not of sufficient degree or certainty or character to constitute the required culpability. We do not agree. In all three charges, there was active concealment of the receipt of funds. The endorsement of the drafts was deceitful and the use of the money for his own purposes dishonest. Advising Roe Minton that he was not going to accept the money at a time when he had already deposited the same in his bank account and seeking to obtain a release for $6,000.00 from the Van Houtens at a time when $7,800.00 had already been received by him and placed in his bank account was dishonest, deceitful, fraudulent, and a misrepresentation of the true facts. The intention to permanently deprive the clients of the appropriated funds is not necessary, and the action of the appellant in dealing with his clients was a continuing one of fraud, deceit, misrepresentation, and dishonesty. The appellant had the benefit of the use of the clients’ money and deprived them of its use to their damage.
The trial judge entered a permanent disbarment order. Although the charges proved against the appellant are serious and demonstrate an unfitness to practice law, we feel that in view of all the circumstances of the case the judgment should be modified.
We conclude that Sam A. Weems should be disbarred as an attorney at law for a period of three years for a period from November 14, 1973, the date the judgment of the Trial Court was entered, and that his license and right to practice law in the State of Arkanaas should be revoked. Further, should Sam A. Weems, at the end of the period of disbarment, make application for readmittance to the practice of law, the State Board of Law Examiners shall at that time determine his fitness to practice law.
It is so ordered.
William K. Ball, Special Justice, concurs. Byrd and Holt, JJ., disqualified. | [
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John A. Fogleman, Justice.
Appellee Virginia Smith is the widow of Clarence C. Smith, who died on March 4, 1972 of cancer which had caused him to be totally disabled after June 18, 1970. Smith had been employed by Moore Ford Company for a number of years. He was covered by a group life and health insurance policy issued by Mid-West National Life Insurance Company, predecessor of Progressive National Life Insurance Company, covering the employees of Moore Ford Company. On January 1, 1971, a new group policy covering these employees was obtained by Moore Ford Company. This policy, providing certain medical benefits and $6,000 life insurance to employees of Moore Ford was issued by appellant, Peoples Protective Life Insurance Company.
This appeal involves the question whether Clarence C. Smith came within the coverage of a group life and health insurance policy issued by Peoples Protective Life Insurance Company to Moore Ford Company. Appellant contends that the judgment against it should be reversed because:
I
There was no coverage for Smith under the Peoples Protective policy.
II
Smith’s ineligibility under the group policy was not waived.
Mid-West issued a group health and life insurance policy to Moore and a certificate to Smith, with appellee as beneficiary. When Peoples Protective issued the policy sued on, it also issued a certificate to Smith, with appellee as beneficiary. The Mid-West policy, which lapsed for nonpayment of premiums about 20 days after the Peoples Protective policy was issued, contained a provision by which premiums were waived in case of total disability.
The Peoples Protective policy contained the following pertinent provisions:
DECLARATIONS PAGE 1
2. All Full-Time Employees to be eligible are all active employees less than 65 years of age. Full-Time employees shall be those who work 30 or more hours a week for the employer.
3. (A) All present Full-Time Employees who have completed 1 month employment on the Effective Date of this Policy shall be eligible immediately; all other Full-Time Employees shall be eligible upon completion of 1 month employment.
PART I ELIGIBILITY
An Eligible Employee shall be an employee of the Employer and of any subsidiary and any affiliate company who qualifies under Statements 2 and 3 of the Declarations Page for whom benefits are indicated in Statement 6 of the Declarations Page.
PART II EFFECTIVE DATE OF INSURANCE
If any Eligible Employee is required to contribute toward the premium for all or a part of his insurance as indicated in Statements 7 and 9 of the Declarations Page, each such employee, as a condition to becoming insured for such contributory insurance, shall make written request to the Employer on a form approved by the Company and shall agree thereon to contribute the amount required for the insurance to which he is or may become entitled. The effective date of such insurance for such an Eligible Employee, subject to the further provisions of the Part, shall be as follows:
1. If such request for insurance is made by the employee on or before the date he becomes eligible, the effective date shall be the date he becomes eligible.
2. If such request for insurance is made by the employee within 31 days after he becomes eligible, the effective date shall be the date of his request or
3. If such request for insurance is made by the employee after the end of 31 day period following the date he is eligible or is made after a previous termination of insurance because of failure to make his contribution when due, the employee shall be required to submit evidence of insurability, including good health, satisfactory to the Company and without expense to it. The effective date of his insurance shall be a date designated by the Company after the Company determines the evidence to be satisfactory.
In any case in which the employee is not actively at work on the date his insurance would otherwise become effective, the effective date of his insurance shall be the date of his return to full-time work.
EMPLOYER NOT COMPANY'S AGENT:
The Employer shall in no event be considered the agent of the Insurance Company for any purpose under this Policy.
AMENDMENT AND CHANGES:
No agent is authorized to alter or amend this policy, or to waive any conditions or restrictions herein, or to extend the time for paying a premium. This policy may be amended at any time by mutual agreement between the Employer and the Company without consent of the employees insured, but without prejudice to any loss incurred prior to the date to which premiums have been paid. No person except the President, Vice President, or Secretary, or Assistant Secretary of the Company has authority on behalf of the Company to modify the policy or to waive any of the Company's rights or requirements.
It was shown that, after Smith became disabled, he went to work again in July, 1970, and worked for some five or six weeks, but that he was not working when the Peoples Protective policy was issued or at any time thereafter. Both policies were contributory. As long as Smith worked, his portion of the premiums due Mid-West (later Progressive) was withheld from his pay. Thereafter, Smith paid the full premium to Moore Ford Company and Moore remitted it to its insurance carrier along with the premiums paid on other employees. His name was never stricken from the records of Moore Ford as an active employee. He was reported to appellant by Moore Ford as if he were a full-time employee. In January 1971, when its policy was issued, the certificate issued to Smith by Peoples Protective recited life insurance benefits of $6,000. Appellant paid a claim submitted by Smith for medical expenses when Smith was treated in a hospital after the issuance of its policy.
United Financial Services was an agent for Mid-West and for Peoples Protective. Hale Allen was President of the agency and Scott Goodman was a stockholder and soliciting agent of United Financial Services. United Financial Services received an “override” on all policies written by it for Mid-West. Goodman was paid commissions by United Financial Services. Hale Allen, president of the agency, testified that it had no authority to extend coverage beyond the terms of the policy. Scott Goodman negotiated both the Mid-West and Peoples Protective policies. According to Smith's daughter, Goodman advised the Smith family that a change in insurance carriers was contemplated by Moore Ford, but that, because of the non-cancellable clause in the Mid-West policy, they should never let his name be dropped from the group, and that they should continue to pay the premiums, regardless of benefits or costs.
Sometime prior to the issuance of the Peoples Protective policy to Moore Ford Company, Progressive National had discontinued the writing of health policies and requested a change in carriers but had been willing to continue the coverage if Moore desired that it do so. Hale Allen, president of United Financial Services, notified Progressive National of the change in carriers. The death benefits under the earlier policy terminated January 20, 1971, but Smith, who was 62 years of age, was not eligible for extended insurance which would have been available to him had he been under 60. Even though several claims had been filed by Smith under this policy, there had been no waiver of premium, to which Smith would have been entitled upon termination of employment by total disability. This company was never notified that Smith’s employment was terminated. He had a privilege of conversion of the life insurance coverage under this policy by applying to Progressive National.
Scott Goodman was aware that Smith had terminal cancer and sometime between June and December 31, 1970 had a conversation with the employee of Moore Ford who kept the company records with regard to claims and premiums on the group insurance policies. According to her, Goodman said that he had told the Smith family to continue the coverage and pay the premium directly to Moore Ford.
There was no evidence that Peoples Protective was ever actually notified of Smith’s condition, except by the medical claims submitted to it.
I
The basic premise of the circuit court’s holding that there was coverage is that Peoples Protective Insurance Company assumed all coverage previously afforded under the Mid-West contract, and that there was no evidence tc the contrary. We respectfully disagree with the learned circuit judge. In the first place, appellee had the burden of proving coverage. State Farm Fire & Casualty Co. v. Rice, 241 Ark. 201, 406 S.W. 2d 880; Southern Farm Bureau Casualty Insurance Co. v. Reed, 231 Ark. 759, 332 S.W. 2d 615, Phoenix Assurance Co., Ltd. v. Loetscher, 215 Ark. 23, 219 S.W. 2d 629; State Farm Mutual Automobile Insurance Co. v. Belshe, 195 Ark. 460, 112 S.W. 2d 954; Atlas Life Insurance Co. v. Bolling, 186 Ark. 218, 53 S.W. 2d 1, 46 C.J.S. 399, Insurance, § 1316 (6); 19 Couch on Insurance 2d 639, § 79:344 (1968). Annot: 68 A.L.R. 2d 8, 145; 68 A.L.R. 2d 150, 204 (1959).
The policy clearly defined eligibility for coverage. There is no evidence that Smith ever qualified for coverage under the policy. He could not have qualified for coverage until the date of his return to full-time work — which never came. See Hargraves v. Continental Assurance Co., 247 Ark. 965, 448 S.W. 2d 942. We find no substantial evidence that appellant assumed the Mid-West coverage. It is quite clear that Scott Goodman was a soliciting agent only and that neither United Financial Services nor Hale Allen had the authority to issue policies or extend coverage beyond the terms of the policy. The only evidence on the subject is the testimony of Allen, who categorically stated that all policies sold by United Financial Services were subject to approval by the home office, that all premiums were paid directly to the company and that United Financial Services was an agent which could sell policies and collect commissions on the sale. He said that he had not suggested that his agency had the power to waive contractual terms, or to issue insurance on risks otherwise unacceptable to Peoples Protective or to infer that United Financial Services was a general agency empowered to issue policies. This not only fails to constitute evidence of actual authority, it falls far short of showing any basis for a finding of ostensible authority to bind the company. Certainly, it cannot be said that Scott Goodman had any such authority, even if the ambiguous statement attributed to him could be stretched to carry an inference that coverage of Smith was greater than indicated by the terms of the policy.
The only evidence relating to the assumption by Peoples Progressive of Mid-West obligations was given by Hale Allen in response to this question by appellee’s attorney:
Can you tell me whether or not as a matter of practice that when one policy is terminated and another one is taken up that the second company takes up the claims for the first one and continues the coverage?
The response was admitted over appellant's objection, with a statement by the circuit judge that the objection was probably correct. The answer and further testimony on this score was as follows:
As a matter of practice, yes, in transfering one group case from one carrier to another you don't expect to have a lapse in coverage.
By Mr. Matthews (claimant’s attorney):
Q. In other words, if you’re going to write insurance for a business or something you’ve got to continue their coverage, is that not right?
A. Yes sir.
This testimony was not admissible, but it was obviously considered by the circuit judge in reaching his conclusions. Even if admissible it was not substantial evidence of assumption of the risk on Smith. To have been sufficient, the evidence must have shown that the custom was certain, uniform, definite and known. St. Louis I.M. & S. Ry. Co. v. Wirbel, 108 Ark. 437, 158 S.W. 118. It must have been known to both parties or of such widespread usage that the contract will be presumed to have been made in reference to it. Ben F. Levis, Inc. v. Collins, 215 Ark. 172, 219 S.W. 2d 762.
Although evidence of custom may be shown to explain an ambiguity in a contract, it cannot be invoked to defeat, contradict, or vary express terms of the contract. Farmers Cooperative Association v. Phillips, 243 Ark. 809, 422 S.W. 2d 418; Arkansas Power & Light Co. v. Thompson, 191 Ark. 171, 83 S.W. 2d 838; Lindsey v. Pierce Petroleum Corporation, 181 Ark. 841, 28 S.W. 2d 56; Ozark Badger Co. v. Roberts, 171 Ark. 1105, 287 S.W. 401. Muse v. Eastham, 141 Ark. 295, 217 S.W. 15. It is not admissible to defeat or vary the plain and unambiguous terms of an insurance contract. Runyan v. Runyan, 101 Ark. 353, 142 S.W. 519.
Appellee bore the burden of proving that Peoples Protective assumed the obligations of Progressive National on the insurance contract issued by Mid-West, and that burden could not be met by incompetent evidence. Capital Fire Insurance Co. v. J. H. Davis & Son, 93 Ark. 179, 124 S.W. 520. Appellee did not meet her burden of proof.
II
The trial court’s finding of waiver and estoppel was bas ed upon two statements of a claim for medical benefits filed on two forms furnished by appellant. The first claim submitted in February 1972 was rejected and returned because medical bills necessary to support the claim were not attached. On the first form Smith’s disability was described as “Cancer-asso-Sarcoma.” In a blank opposite the words “First full day unable to work” the response “March, 1970” was written. Thereafter, the second claim form submitted was received by appellant on March 21, 1972, some 17 days after Smith’s death. This claim was paid, but the form did not contain any statement at all about the time Smith was first unable to work. There was no suggestion in either form that Smith did not work many full days after March, 1970, or that he was disabled from that date on. As a matter of fact he was not. The undisputed evidence shows that Smith worked during 1970 in June, perhaps July, and possibly even later. It was entirely possible, so far as appellant knew, that Smith had worked at a time which made him eligible.
Although the circuit court recognized that the doctrine of waiver and estoppel cannot be invoked to extend coverage and thereby bring into existence a contract not made by the parties, it held that the payment of a claim for medical benefits brought the doctrine into play. We agree that coverage in a contract of insurance cannot be extended by waiver or estoppel, but not that the payment of medical expenses changed the situation so as to accomplish this result. This proposition is thoroughly treated in 18 Couch on Insurance, 2d 32, 33, §§ 71:39, 71:40, viz:
$$$$$
The doctrine of waiver or estoppel cannot be given the effect of enlarging or extending the coverage as defined in the contract, nor can it create a contract of insurance, since a cause of action cannot be based on a waiver.
The doctrine of waiver or estoppel, based upon the conduct or action of the insurer, is not available to bring within the coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom, and the application of the doctrine in this respect is to be distinguished from the waiver of, or estoppel to deny, grounds of forfeiture. That is, conditions going to the coverage or scope of the policy, as distinguished from those furnishing a ground for forfeiture, may not be waived by implication from conduct or action, without an express agreement to that effect supported by a new consideration.
*****
A cause of action cannot arise on the theory of es-toppel. This follows from the fact that an estoppel is defensive in character. It does not create a cause of action. Its function is to preserve rights and not to bring into being a cause of action.
An insurer may waive a defense by his conduct and become estopped to thereafter assert it, but in any case estoppel operates to preserve rights already acquired and to prevent forfeitures or avoidance of duties, but not to create new rights or new causes of action.
Similarly, it has been said that the doctrine of es-toppel is protective only and may be invoked as a shield but not as a weapon of offense. It is not effective to create a cause of action and should not be used for gain or profit.
Smith was excluded from coverage by specific language in the policy. In Hartford Fire Insurance Co. v. Smith, 200 Ark. 508, 139 S.W. 2d 411, we said:
***** -phe doctrine of waiver and estoppel cannot be asserted to extend coverage under a contract in which it was excluded by specific language. Miller v. Illinois Bankers’ Life Ass’n., 138 Ark. 442, 212 S.W. 310, 7 A.L.R. 378; Mutual Ben. Health & Acc. Ass’n. v. Moore, 196 Ark. 667, 119 S.W. 2d 499; John Hancock Life Insurance Co. v. Henson, [199 Ark. 987], 136 S.W. 2d 684.
A contention similar to those of appellee was considered and rejected in Bankers National Insurance Co. v. Hembey, 217 Ark. 749, 233 S.W. 2d 637. We said:
It is true that prior to institution of this suit appellant rejected appellee’s claim of disability on the exclusive ground that hernia was an excepted risk, and this exception clause was not specifically pleaded. If Part A, when considered in connection with Part E, merely dealt with a ground of forfeiture, appellant might be held to have waived such forfeiture under the rule that where an insurer denies liability for a loss on one ground, at the time having knowledge of another ground of forfeiture, it cannot thereafter insist on such other ground if the insured has acted on its asserted position and incurred prejudice or expense by bringing suit, or otherwise. 29 Am. Jur., Insurance § 871. But Part A, as related to Part E, sets forth the scope or coverage of the policy and not merely a condition, the breach of which may be a ground of forfeiture. The rule is that, while a forfeiture of benefits contracted for may be waived, the doctrine of waiver or estoppel cannot be invoked to extend the coverage and thereby bring into existence a contract not not made by the parties. Miller v. Illinois Bankers’ Life Ass’n., 138 Ark. 442, 212 S.W. 310. Hartford Fire Ins. Co. v. Smith, 200 Ark. 508, 139 S.W. 2d 411; 45 C.J.S. Insurance, § 674a. Cases pointing out this well recognized distinction are collected in an annotation in 113 A.L.R. 857. We, therefore, conclude that appellee was not entitled to disability benefits under Part E of the policies.
In Life & Casualty Insurance Company of Tenn. v. Nicholson, 246 Ark. 570, 439 S.W. 2d 648, we said:
It is well settled in this state that the doctrines of waiver and estoppel, based upon the conduct or action of the insurer, cannot be used to extend the coverage of an insurance policy to a risk not covered by its terms or expressly excluded therefrom. Hartford Fire Insurance Co. v. Smith, 200 Ark. 508, 139 S.W. 2d 411; Metropolitan Life Insurance Company v. Stagg. 215 Ark. 456, 221 S.W. 2d 29; Bankers National Insurance Co. v.Hemby, 217 Ark. 749, 233 S.W. 2d 637. This is not a case where forfeiture is attempted by the insurance company but is a question as to the extent of the coverage of the policy. Consequently, there is no support for a finding of waiver.
Later, in Batesville Insurance & Finance Company v. Butler, 248 Ark. 776, 453 S.W. 2d 709, we made these appropriate remarks:
Butler’s second point on cross-appeal is that U.S.F. & G. should be estopped from denying the coverage in question because of the representations of its agent, the Batesville Insurance & Finance Co., Inc. In making this argument, Butler has shown us no reason to overrule our many decisions holding that the doctrines of waiver and estoppel, based upon conduct or action of an insurer, cannot be used to extend coverage of an insurance policy to a risk not covered by its terms or expressly excluded therefrom. Life & Casualty Insurance Co. v. Nicholson, 246 Ark. 570, 439 S.W. 2d 648 (1969). Furthermore, the only authority, apparent or otherwise, shown to have been delegated to the agent was to countersign and issue policies and riders on printed forms when the proper premium was paid. This falls far short of apparent authority to extend the risk contained in a printed policy by an oral representation as suggested by cross-appellant.
In view of these authorities, the evidence pertaining to the payments of a claim cannot constitute substantial evidence of coverage, even if it could be said to have any probative force in that regard.
Since there is no substantial evidence to support the judgment holding Peoples Protective liable to appellee, we must reverse that judgment. That part of the case has been fully developed, so it must be dismissed.
Appellee cross-appealed, however, from that part of the judgment dismissing her complaint against Progressive National and Moore Ford Company. No reason for the dismissals is. given in the judgment or the court's memorandum opinion. It appears, however, that the basis for this action may have been the finding that Peoples Protective had assumed the coverage formerly afforded Progressive National. Appellee quite frankly states that her cross-appeal is an alternative to an affirmance and that she has been unable to determine whether it is proper. Appellee has not stated any basis for holding Moore Ford liable to her. The mere allegation in her complaint that Moore Ford’s failure to pay premiums or transfer coverage is hardly sufficient. Nothing in the evidence shows that Moore Ford failed to pay any premiums or that it had any obligation to transfer coverage.
The basis asserted in appellee’s complaint for holding Progressive National Insurance Company liable appears to be the provision for waiver of premiums in case of total disability, coupled with a conversion clause in the policy originally issued by Mid-West and with a clause for extended death benefits. The “extended insurance” provisions were not available to Smith, because he did not become totally disabled before he became 60 years of age. Furthermore, no proof of total disability required by these provisions was ever furnished Progressive National. Smith never applied for conversion of the group life insurance under the Mid-West policy as required by the unambiguous terms of the policy.
Appellee, as cross-appellant, had the burden of demonstrating to this court that the trial court committed error in dismissing the complaint as to cross-appellees. Holt v. Holt, 253 Ark. 456, 486 S.W. 2d 688; Poindexter v. Cole, 239 Ark. 471, 389 S.W. 2d 869. Every judgment of a court of competent jurisdiction is presumed right unless the party aggrieved affirmatively shows it was erroneous. Clow v. Watson, 124 Ark. 388, 187 S.W. 175. See also Embry v. Neighbors, 139 Ark. 313, 213 S.W. 741. Appellee has also failed to meet this burden.
Since we find no basis for liability of either Peoples Protective Insurance Company, Progressive National Insurance Company or Moore Ford Company, and since the case has been fully developed, we must dismiss the action. The judgment is reversed on direct appeal, affirmed on cross-appeal and the cause is dismissed.
Jones and Byrd, JJ., dissent as to the reversal.
Holt, J., not participating.
Goodman denied that he had anything to do with the change of carriers or even knew of it until after it had been accomplished. In stating the facts, however, we have drawn all possible inferences and resolved all conflicts favorably to the appellee. Goodman admitted having advised the Smith family when he went to the home to fill out a medical claim form at a time not later than the early fall of 1970, that there were conversion privileges under the Mid-West policy. | [
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John A. Fogleman, Justice.
Mrs. Billie C. Wilson had been executive director of the Union county chapter of the American Red Cross for 28 years preceding December 12, 1971. Part of her duties included taking emergency calls at her home after usual working hours. She was also charged with the sole responsibility for providing Christmas decorations to various nursing homes in the El Dorado area. On December 12, 1971, Mrs. Wilson was in her attic, where the Christmas decorations were customarily stored, when her telephone rang. When she heard it, she gathered up a bundle of the decorations and proceeded down the attic stairway and, on her way down, she slipped and fell and suffered serious injuries. Upon her claim for Workmen’s Compensation benefits, the Commission awarded her permanent and total disability. The award was affirmed by the trial court. On appeal, the only contention made by appellants is that there was no substantial evidence to support the award. We find that there was and affirm.
Mrs. Wilson testified that just before the telephone rang she was in the process of gathering the decorations stored there for the purpose of taking them, on the following day, to the Red Cross office at the El Dorado City Hall for making an inventory of them, in order to ascertain what purchases were needed for that year, as she did every year. Before the telephone rang, she had not taken any of the decorations downstairs. Mrs. Wilson had no way of knowing or showing whether the phone call she never answered was a personal one or a Red Cross emergency call. The Commission found that the evidence was clear that appellee was engaged in duties required of her by the American Red Cross at the time of her injury and that her injury arose out of and in the course of her employment.
Appellants argue that, since it was not shown and was impossible to know, that the telephone call pertained to appellee’s duties, the evidence suppporting this finding of the Commission is not substantial. They say her carrying the bundle of decorations downstairs was merely incidental to the primary purpose of answering the telephone.
We agree with appellants that a claimant bears the burden of proving that his injury was the result of an accident that arose in the course of his employment, and that it grew out of, or resulted from the employment. We do not agree, however, with their argument that the Workmen’s Compensation Act does not mandate that the Commission view the evidence liberally in favor of the claimant. To the contrary, the Commission, in considering a claim, must follow a liberal approach and draw all reasonable inferences favorably to the claimant. Holland v. Malvern Sand & Gravel Co., 237 Ark. 635, 374 S.W. 2d 822. It was the duty of the Commission to draw every legitimate inference possible in favor of the claimant and to give her the benefit of the doubt in making the factual determination. Brower Manufacturing Co. v. Willis, 252 Ark. 755, 480 S.W. 2d 950; Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487. The same rules apply, of course, in determining whether the accident grew out of and occurred within the course of the employment. Brooks v. Wage, 242 Ark. 486, 414 S.W. 2d 100.
The question, on appeal to the courts, remains the same as on other questions, i.e., was there any substantial evidence upon which the Commission could reasonably make the factual determination. We have said that an injury arises out of employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury, and that it is enough if there be a substantially contributory causal connection between the injury and the business in which the employer employs the claimant, but it need not be the sole or proximate cause. Simmons National Bank v. Brown, 210 Ark. 311, 195 S.W. 2d 539.
Mrs. Wilson’s presence in her attic was attributable to the performance of her duties. The decorations had to be carried downstairs by her at some time. She did pick up some of them to take down when the phone rang and did proceed down the stairway carrying them. Under these circumstances, it is of little consequence whether the nature of the telephone call was personal or business. This court is committed to a view of the term “arising out of and in the course of the employment” which requires a liberal application to allow compensation. Tinsman Manufacturing Co. v. Sparks, 211 Ark. 554, 201 S.W. 2d 573. In Tinsman, we held that slight deviations from the duties of employment do not remove employees from coverage of the act. See also Cox Bros. Lumber Co. v. Jones, 220 Ark. 431, 248 S.W. 2d 91; Williams v. Gifford-Hill & Co., 227 Ark. 340, 298 S.W. 2d 323. Language in these opinions seems to make the consent or acquiescence of the employer a controlling factor in reaching a conclusion that the deviation does not eliminate coverage, in spite of the fact that in Cox Bros. Lumber v. Jones, the acquiescence was only evidenced by the employer’s testimony that the employer had no objection to the employee’s crossing the railroad tracks on which he was killed for anything he needed.
There is respectable authority holding that an injury to one, whose duties include answering telephone calls, by falling downstairs while answering a personal private telephone call, is not prevented from “arising out of and in the course of his employment.” In Re Cox, 225 Mass. 220, 114 N.E. 281 (1916). Of the same tenor are Kent v. Kent, 202 Iowa 1044, 208 N.W. 709 (1926) and Holland-St. Louis Sugar Co. v. Shraluka, 64 Ind. App. 545, 116 N.E. 330 (1917) where the same liberal view entertained by this court is emphasized; Adams v. Colonial Colliery Co., 104 Pa. Super. 187, 158 A. 183 (1932) where the “slight deviation” test was applied; and Parisi v. City of Niagra Falls, 245 App. Div. 884, 282 N.Y.S. 310 (1935) where the consent or acquiescence of the employer was given significance.
We find it unnecessary to decide, in this case, whether, under the authority of our cases, a deviation from the regular course of employment must necessarily be with the consent and acquiescence of the employer to be so slight as to be con sidered incidental to the employment. In this case the duty of answering telephone calls was imposed upon appellee. Neither she, nor any other such person should be expected to have the prescience which would be necessary to discriminate between personal calls and business emergency calls in determining whether to answer. The duty imposed upon her was, to say the least, evidence of acquiescence in her answering her telephone, even if she had to go down the stairway from her attic to do so. When this evidence is coupled with the fact that appellee did carry with her a part of the decorations she had to take downstairs sometime that day, we find very substantial evidentiary support for the award.
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George Rose Smith, Justice.
This appeal involves the forfeiture of a bond in a criminal case. The appellant Schaaf is a professional bondsman. The appellant Craig was formerly in that business. On September 19, 1973, the two men made a $7,369.23 bail bond for John A. Jones, who was charged in the Cleburne Circuit Court with “hot check and false pretense.” On November 26 the court entered an order declaring a forfeiture of the bond in its full amount. This appeal is from a later order refusing to set aside the forfeiture. The appellants contend that under the statutes they are entitled to complete exoneration as a matter of right.
The facts are simple and not in dispute. Jones was arrested in Hempstead County and was taken to Columbia County, where he had written a bad check. There were additional charges pending against Jones in other counties. The appellants made a number of bail bonds for Jones, including the one now in issue and a $10,000 bond in connection with charges in Van Burén County. Van Burén and Cleburne counties are both in the 14th Judicial District.
Jones had been directed to appear in the Cleburne Circuit Court on October 8, 1973, but he left the state to avoid that appearance. The court entered an order finding that Jones had failed to appear and directing the two bondsmen to appear on November 26 and show’ cause why the bond should not be forfeited.
The bondsmen at once printed and circulated fliers seeking Jones’s apprehension. As a result of that action Jones was picked up at Winfield, Iowa. The two bondsmen drove to Winfield, paid a $500 reward, and returned Jones to Arkansas, where he was first placed in the Van Burén county jail on November 13 and then transferred to the Cleburne county jail.
Acting upon advice of counsel, the bondsmen did not appear in court on November 26, to show cause why the bond should not be forfeited. On that date the court entered an order declaring a forfeiture of the bond. A hearing upon the bondsmen’s motion to set aside the forfeiture was had on December 27. As a result of that hearing the court set aside the forfeiture of the $10,000 bond in the Van Burén County case, where restitution had been made, but refused to set aside the Cleburne County forfeiture.
The appellants, in insisting upon a right to complete exoneration, rely upon Ark. Stat. Ann. § 43-716 (Repl. 1964). We think, however, that three sections of the statutes, all being parts of the Criminal Code of 1868, must be considered. Those sections are:
Section 43-716. At any time before the forfeiture of their bond, the bail may surrender the defendant, or the defendant may surrender himself, to the jailer of the county in which the offense was committed; but 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; and the bail shall thereupon be exonerated.
Section 43-723. If the defendant fail 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 thereupon the bail-bond, or the money deposited in lieu of bail, is forfeited.
Section 43-729. If, before judgment is entered against the bail, the defendant is surrendered or arrested, the court may, at its discretion, remit the whole or part of the sum specified in the bail-bond.
Section 43-716, relied upon by the appellants, is not applicable to the facts of this case. That section simply enables the bondsman to avoid liability by surrendering the defendant before there has been any failure on his part to appear in court. That was the situation in all four of the cases cited by counsel for the appellants: Ex parte Graham, 150 Ark. 236, 234 S.W. 176 (1921); Hester v. State, 145 Ark. 347, 224 S.W. 618 (1920); Carter v. State, 43 Ark. 132 (1884); Sternberg v. State, 42 Ark. 127 (1883). In Sternberg, for example, the bondsman had the sheriff re-arrest the defendant in January, 1882. After that the sheriff either released the defendant or allowed him to escape. At a subsequent forfeiture proceeding in June the trial court held the surety liable, on the ground that he had not taken a written acknowledgment from the sheriff. We reversed that holding, finding compliance with the statute.
In the case at bar the other two quoted sections are controlling. Under section 43-723, when Jones failed to appear on October 8 and the court entered that fact upon its record, the bond was, in the language of the statute, thereupon forfeited. The show-cause order did not abrogate the statutory forfeiture. It merely afforded the bondsmen an opportunity to be heard with respect to a total or partial remission of the forfeiture, under section 43-729.
At that hearing the trial judge expressed his disapproval of professional bonds and indicated that it was not customary in his district for such bonds to be accepted. The law, however, favors the bondsman. As we said in Central Casualty Co. v. State, 233 Ark. 602, 346 S.W. 2d 193 (1961): “It is well settled that the giving of bail bonds is to be encouraged, not only because the accused is ordinarily entitled to his freedom before trial but also because the state is relieved of the expense of maintaining the prisoner until the case can be heard. . . . ‘The purpose of requiring bail bonds is not to enrich the treasury, but to secure the administration of justice.’ ” In that case the accused had been only a few hours late in arriving for his trial, a blizzard having delayed his airplane flight. We reduced the forfeiture from $7,500 to $750, stressing the defendant’s almost total freedom from fault.
The case at bar presents a more serious issue than that raised in the case just cited. Here the bondsmen permitted their principal to leave the state to avoid trial and failed to appear at the November 26 hearing upon the show-cause order. Even so, the bondsmen were successful in finding the defendant and returning him to custody. The record does not indicate what additional costs and expenses were incurred by the county. We have concluded that a forfeiture of $2,500 is sufficient to secure the administration of justice in this case.
The order of forfeiture is reduced to $2,500 and, as so modified, is affirmed.
Fogleman, J., dissents in part. | [
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TOM Glaze, Justice.
This appeal arises from a Garland County tice. dismissal of a lawsuit between Ouachita Trek and Development Company (“OTDC”) and Lynn and Martha Rowe. The chancellor had originally granted specific performance in favor of OTDC, but after a series of attempts to close on the property failed, she dismissed OTDC’s suit. For the reasons set out herein, we affirm.
In May of 1992, OTDC and the Rowes entered into an option agreement which provided for the sale of land on Blakely Mountain in Garland County owned by the Rowes in three forty-acre tracts of land, that the Rowes had not previously sold to others. This land constituted about seventy acres of land altogether. In order to extend the length of the option agreement, OTDC purchased two additional tracts of property in those three forties on July 7, 1993, on which date the parties also entered into another purchase and option agreement. This second purchase and option agreement provided for an initial term of fifteen months and was set to expire on October. 7, 1994, unless OTDC exercised a provision contained in the agreement to extend the expiration of the agreement for another six months, or until April 7, 1995, during which time OTDC was to purchase an additional 2.3 acre tract of property. OTDC properly extended the expiration of the agreement until April 7, 1995, by purchase of the additional 2.3 acres in July of 1994.
On April 7, 1995, OTDC gave notice to the Rowes that it intended to exercise its right to purchase all of the land contained in the three forty-acre tracts which the Rowes had not previously sold. The parties proceeded toward a closing on the optioned property set for July 25, 1995, but the closing did not occur. According to the Rowes, OTDC had insisted on terms that were different from those contained in the original agreement. In October of 1995, OTDC filed suit against the Rowes in Garland County Chancery Court, seeking specific performance of the purchase and option agreement and damages suffered due to the faded July 1995 closing.
The basis of the complaint was the parties’ differing interpretations of several provisions of the purchase and option agreement, including the method by which OTDC could exercise the option, what acreage was to be included in the option, which properties were intended to be included in the provision allowing OTDC a first option to reacquire property previously sold by the Rowes subject to their right to reacquire, how a resale and release clause was to be interpreted and implemented, who had responsibility for the roads to the optioned property (and the extent of that responsibility), and other matters.
The case was tried before Garland County Chancellor Vicki Cook in October of 1997. On January 27, 1998, she issued a letter order in which she granted specific performance to OTDC; however, she awarded no damages or attorneys’ fees. OTDC prepared a precedent, which was signed by the chancellor on March 30, 1998, and entered it on that same date. Also on March 30, a closing date was set for June 1, 1998.
On April 10, 1998, the Rowes filed a motion under Rules 52(b), 59, and 60 of the Arkansas Rules of Civil Procedure to amend the precedent, asserting that the precedent prepared by OTDC contained language that was not in the chancellor’s letter order. In response, on June 15, 1998, the trial court entered an amended order, correcting the March 30 order to reflect what was contained in its original letter order.
The parties did not close on June 1, and on June 23, 1998, the Rowes filed a motion pursuant to Ark. R. Civ. P. 70, asserting that OTDC had failed to comply with the court’s orders with respect to closing and that OTDC’s cause of action should be dismissed. A hearing on the motion was held on August 21, 1998, and the chancellor ordered the parties to close on September 21, 1998, or she would grant the Rowes’ Rule 70 motion. On September 14, 1998, another hearing was held to discuss closing documents. OTDC filed a “Motion to Determine Closing Documents” on September 18, asking the court to determine that the mortgage and promissory note it submitted were the documents that best reflected the previous orders of the court; this order was never ruled on by the court.
Closing did not occur on September 21, and the Rowes entered a motion to dismiss on September 28. A hearing was held on October 12, at the close of which the trial court granted the Rowes’ motion and dismissed OTDC’s cause of action. The-same day, she granted OTDC’s motion for stay pending appeal on the condition that OTDC post a supersedeas bond. OTDC timely filed a notice of appeal, and now raises six points for reversal. Because we find that none of these points has merit, we affirm the chancellor’s dismissal of the matter; however, we do so for a reason different from the one given by the chancellor. We discuss this point further below. In addition, the Rowes filed a notice of cross-appeal, in which they assert that this court should remand the matter to the trial court for entry of judgment in the amount of the supersedeas bond which OTDC never posted.
We hear chancery cases de novo on the record, but will not reverse a finding of fact by the chancellor unless it is clearly erroneous. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000) (citing Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998); Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993)). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Ross Explorations, Inc. v. Freedom Energy, 340 Ark. 74, 8 S.W.3d 511 (2000). The evidence on appeal, including all reasonable inferences therefrom, and the findings of fact by a judge must be reviewed in a light most favorable to the appellee. McKay, 340 Ark. at 176, 8 S.W.3d at 528 (citing Looper v. Madison Guar. Sav. & Loan Ass’n, 292 Ark. 225, 729 S.W.2d 156 (1987)).
For its first point on appeal, OTDC argues that the trial court erred in entering an amended precedent on June 15, 1998, urging that the Rowes waived all objections to the March 30 order during the hearing held on that date. In addition, OTDC asserts that the trial court lost jurisdiction to enter a new precedent when the court failed to rule on the Rowes’ April 10, 1998, motion pursuant to Rules 52, 59, and 60 within thirty days; because of this failure, OTDC contends that the Rowes’ motion was deemed denied on May 10, 1998.
The basis of the Rowes’ motion was a discrepancy between the language of the precedent prepared by OTDC and that of the letter order written by Chancellor Cook. The letter order, dated January 27, 1998, ordered the Rowes “to bring the roads to these three tracts within a reasonable level or performance on or before 90 days after the closing by taking all steps necessary for the roads to be paved and accepted by the County.” (Emphasis added.) The precedent prepared by OTDC, however, read that the Rowes had “responsibility for maintaining and improving the roads. . . and shall have 90 days from January 27, 1998, to improve and pave these roads up to the point sufficient to comply with the Garland County requirements ...” (Emphasis added.)
Pursuant to Ark. R. Civ. P. 60, the Rowes’ motion alleged mistake or oversight in the preparation of the precedent, and asked the trial court to amend the precedent to delete any language requiring them to pave the roads. Rule 60(b), at the time this case was originally heard, provided as follows:
To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a . . . chancery . . . court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk.
Ark. R. Civ. P. 60(b) (1999).
Thus, corrections of mistakes or errors, or efforts to prevent the miscarriage of justice, may be made within ninety days of the original order. The amended order in the instant case was entered on June 15, 1998, less than ninety days (actually, seventy-seven days) from the original order on March 30, 1998. Because OTDC attempted to mislead both the trial court and the Rowes by inserting the improper language about paving the roads into the precedent it prepared, the court properly amended the order under Rule 60 to prevent the miscarriage of justice.
OTDC raises the additional argument that the Rowes waived any objection to the language in the precedent when they announced “no objections” to the precedent at the March 30 hearing. However, one cannot waive something that one is unaware of. The Rowes never agreed to pave the roads over the property, yet OTDC inserted the language quoted above into the precedent. At the March 30 hearing, the trial court asked counsel for OTDC if he had tracked the language of the letter opinion; the attorney responded that he had. When asked if he had any objections, counsel for the Rowes stated that “if [the precedent is] the same one that I’ve seen previously,” he had none. Counsel for OTDC stated that “[t]he only thing that was sent was a new signature page which allows you to fill in the date for it because that had been left off.” This material misrepresentation prevents OTDC from arguing waiver at this time.
Thus, the chancellor was correct when she entered an amended order that properly stated that the Rowes only had to maintain the roads until the county would accept them for paving, correcting the order entered on March 30 which ordered the Rowes to pave the roads. Rule 60 permits such oversights to be corrected within ninety days; this amended order was entered in seventy-seven days, well within the time allotted.
OTDC’s second point on appeal is that the trial court erred in its interpretation of the resale and release clause in the purchase and option agreement. The clause in question reads as follows:
It is the understanding of the parties that OTDC may hold the property described herein ... for resale to the public. ROWE agrees to accommodate OTDC in its best efforts to resale [sic] any and all property South of Heritage Trail, and accordingly, after exercising the option, ROWE agrees to release their lien upon any portion of the property contracted for sale to third parties upon the payment of FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00) per acre. The parties further agree to a payment or reduction of the principal amount owed for that portion.
In her June 15, 1998, amended order, the chancellor interpreted this language to mean that “the down-payment, once paid by [OTDC], shall operate to provide security to defendants for the entire transaction. After the down-payment, any payment of $5,000.00 or more will entitle the plaintiff to a release of lien at the rate of $5,000.00 per acre as stated in the agreement.” At the August 21, 1998, hearing, the court found that “the monthly payments would be made and the $5,000.00 would be additional if there was going to be a release.” Reiterating her order in a September 15, 1998, letter, she wrote that “[a]fter the down payment, any payment of $5,000.00 or more will entide [OTDC] to a release of hen at the rate of $5,000.00 per acre as stated in the agreement.” Thus, her conclusion was that payments of $5,000.00 beyond the monthly principle and interest payments, after the down payment was made, would operate to do two things: 1) reduce the principle amount owed, and 2) entitle OTDC to a release of one acre of land from the Hen retained by the Rowes.
OTDC contends that the trial court’s interpretation is erroneous and argues here, as it did to the court below, that “any payment” of $5,000.00 includes the monthly instaHments and should warrant a release of Hen. In addition, OTDC urges that the trial court’s “verbal interpretation” of this language at the August 21 hearing amended its earlier ruHng. However, we do not find this argument persuasive. The chanceHor’s interpretation of the resale and release clause — that any additional payment of $5,000.00 over the monthly principle and interest payment would release an acre from the Hen — is a common-sense one, and her statements at the August hearing merely clarified her earlier written ruling. We cannot say that her decision was clearly erroneous, and thus, we do not reverse on this point.
For its third point on appeal, OTDC argues that the trial court erred by failing to include certain property, referred to by the parties as the “church property,” as part of the property to be acquired pursuant to the purchase and option agreement. The purchase and option agreement contained language to the effect that the Rowes had reserved rights to reacquire property in the area previously sold by them and had agreed to assign those rights to OTDC, in the event OTDC exercised its purchase option. The property that OTDC contended came within this reservation of rights was a ten-acre tract previously conveyed by gift from the Rowes to their church.
After hearing testimony and reviewing the documentary evidence presented during the trial, the chancellor found that the church property was not part of the acreage included in the purchase and option agreement. First, she found that the property had not previously been sold by the Rowes; rather, it had been a gift to their church for which no consideration had been paid on its return to the Rowes. In addition, she noted that the legal description of the land in the agreement provided for 61.65 total acres, more or less, which, when multiplied by the resale and release price of $5,000.00 per acre, was roughly consistent with the total agreed purchase price of $300,000.00. In addition, she pointed to exhibits which did not depict the church property on them. Testimony from the Rowes, including Martha Rowe’s diary, also supported their contention that the church property was not shown on the plat attached to the parties’ agreement; nor did the contract refer to the property directly or indirectly. Based on this evidence, the chancellor concluded that the contract did not include the church property.
The chancellor’s decision appears well-founded on the testimony and evidence presented at trial. Especially convincing is the fact that the property to be sold encompassed approximately sixty acres and was to be sold for $300,000.00 (or 60 x $5,000.00 per acre, the value assigned in the resale and release clause). Had the ten-acre church property been included, the sale price should have been roughly $50,000 higher. This court has repeatedly held that it will not reverse a chancellor’s findings of fact unless they are clearly erroneous; in this case, given the chancellor’s superior position to view all the evidence, it cannot be said that she clearly erred.
OTDC’s fourth argument on appeal is that the trial court erred in failing to require the Rowes to pave all of the roads to the optioned property, or in the alternative, in failing to award damages based on the Rowes’ failure to pave the roads. First, OTDC relies on the March 30, 1998, order it prepared in which the Rowes were given ninety days from January 27, 1998, “to improve and pave those roads.” However, this was the language that the trial court properly corrected by removing it in the June 15 amended order, and OTDC cannot rely on it now.
Second, OTDC urges that even under the June 15, 1998, order, the Rowes were directed to bring the roads to the three tracts of land “within a reasonable level of performance on or before ninety days after the closing by taking all steps necessary for the roads to be paved and accepted by the county” (emphasis original in OTDC’s brief). Basically, OTDC claims that the Rowes had not done what they could to get the county to accept the roads. On this point, however, the chancellor ultimately decided that since there had been no closing, and thus no way to determine when ninety days from closing would be, this issue was not ripe. For that reason, she refused to award damages to OTDC. Again, we cannot say that this decision was clearly erroneous.
The fifth point of OTDC’s argument is that the trial court erred by denying its attorneys’ fees pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1999). In her order, the chancellor noted that the decision whether to award attorneys’ fees is within the court’s discretion, and she found that since neither party was entitled to damages, both parties were to be responsible for their own attorneys’ fees.
In Chrisco v. Sun Industries, 304 Ark. 227, 800 S.W.2d 717 (1990), this court was very clear on the subject of attorneys’ fees and a trial court’s discretion with respect to whether or not to grant them. The Chrisco court stated the following:
Our general rule relating to attorney’s fees is well established and is that attorney’s fees are not allowed except when expressly provided for by statute.
[Ark. Code Ann. §] 16-22-308 addresses attorney’s fees in certain civil actions and provides in pertinent part as follows:
In any civil action to recover on . . . breach of contract, . . . the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.
(Emphasis added.)
The word “may” is usually employed as implying permissive or discretional, rather than mandatory, action or conduct and is construed in a permissive sense unless necessary to give effect to an intent to which it is used. We find, within the context in which the word “may” is employed in this case, that section 16-22-308 is permissive and discretional with the trial court.
* * * *
We have also previously noted that due to the trial judge’s intimate acquaintance with the record and the quality of service rendered, we usually recognize the superior perspective of the trial judge in assessing the applicable factors. Accordingly, an award of attorney’s fees will not be set aside absent an abuse of discretion by the trial court.
Chrisco, 304 Ark. at 229-30, 800 S.W.2d at 718 (internal citations omitted).
The chancellor was involved in this lawsuit from its beginning, and no doubt is intimately familiar with the performance and quality of service rendered by counsel for both parties. Her decision was certainly based on her familiarity with the case, and OTDC has not proven that she abused her discretion in refusing to award fees.
OTDC’s final point on appeal is that the trial court erred by dismissing with prejudice its entire cause of action after the closing failed on September 21, 1998. The chancellor purported to dismiss the action pursuant to the Rowes’ motion under Ark. R. Civ. P. 70. The language of Rule 70, however, does not provide for dismissal. That rule reads as follows:
If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act, and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party. . . . The court may also in proper cases adjudge the party in contempt.
Although Rule 70 does not provide a mechanism for dismissal, we nonetheless affirm the chancellor’s decision to dismiss OTDC’s cause of action for another reason. Here, OTDC sought specific performance, an equitable remedy. See Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000); Hardy Constr. Co. v. Arkansas State Hwy. & Transp. Dep’t., 324 Ark. 496, 922 S.W.2d 705 (1996). However, one of the most basic maxims of equity is that he who seeks equity must do equity. See Cardiac Thoracic & Vascular Surgery, P.A. v. Bond, 310 Ark. 798, 840 S.W.2d 188 (1992).
Arkansas cases extending back more than seventy years have recognized that a party who breaches a contract cannot compel specific performance of that same contract by the other party. Moody v. Kahn, 174 Ark. 1072, 298 S.W. 353 (1927). Here, OTDC continually insisted on improper language, not only in the precedent it prepared, but also in the closing documents it tried to have the Rowes sign. With OTDC, the chancellor was confronted with a party who sought specific performance of the parties’ agreement, but OTDC repeatedly rejected the chancellor’s interpretations of the agreement that she deemed were necessary to carry it out. Thus, the chancellor in the instant case was correct to dismiss OTDC’s suit for specific performance. In so holding, we adhere to the recognized rule that this court will affirm a trial court when it has reached the right result, even if for the wrong reason. State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999) (citing Malone v. Malone, 338 Ark. 20, 991 S.W.2d 546 (1999); Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998); Marine Servs. Unlimited, Inc. v. Rake, 323 Ark. 757, 918 S.W.2d 132 (1996)). In sum, because the circumstances in this case do not support the granting of specific performance, we agree that the chancellor correctly dismissed OTDC’s cause of action.
We next turn to the Rowes’ cross-appeal, in which they argue that we should remand the matter to the lower court for entry of a judgment in the amount of $60,000.00, the amount of the supersedeas bond OTDC was to post with the chancery clerk on or before October 26, 1998 ■ — ■ two weeks after the trial court’s order dismissing OTDC’s cause of action. The trial court’s order directed OTDC to submit its surety bond pertaining to its appeal or dismiss the appeal forthwith. OTDC never posted a surety bond, nor did the Rowes object to or move to dismiss OTDC’s appeal.
On appeal, OTDC argues that there was no necessity for it to post a supersedeas bond in order for it to maintain its interests in the property at issue. OTDC contends that its interests were sufficiently protected by having filed a lis pendens when it filed its original action. The Rowes offer no reason why they did not move to enforce OTDC’s posting of a bond, but instead, ask that we remand the matter for the trial court to enter a judgment for $60,000.00 — the bond amount that was to be posted by October 26, 1998. The Rowes cite no legal authority that supports their proposition, and we have stated on occasions too numerous to count that we will not consider the merits of an argument if the appellant fails to cite any convincing legal authority in support of that argument, and it is otherwise not apparent without further research that the argument is well taken. Matthews v. Jefferson Hospital Ass’n, 341 Ark. 5, 14 S.W.3d 482 (2000).
Rule 8(c) of the Rules of Appellate Procedure — Civil states that whenever an appellant desires a stay on appeal, he or she shall present to the court for its approval a supersedeas bond which shall have such surety or sureties as the court requires. Rule 8(c) further provides that the bond shall be to the effect that appellant shall pay to appellee all costs and damages that shall be affirmed against appellant on appeal; or if appellant fails to prosecute the appeal to a final conclusion, or if such appeal shall for any cause be dismissed, that appellant shall satisfy and perform the judgment, decree, or order of the trial court.
Here, while OTDC initially requested a stay pending an appeal, it later decided no stay was needed to protect its interests. As previously noted, once OTDC chose not to seek a stay under Rule 8, the Rowes took no action when the October 26, 1998, date for posting bond passed. We believe the circumstances and the argument put forth here by the Rowes fall short of showing their entitlement to a remand and entry of judgment.
For the above reasons, the order of the chancellor dismissing OTDC’s cause of action is affirmed, and the cross-appeal of the Rowes is dismissed.
IMBER, J., not participating.
Rule 60 was amended in 2000 to reflect this court’s decision in Lord v. Mazzanti, 339 Ark. 25, 2 S.W.3d 76 (1999), in which we held that clerical errors could be corrected by the court “at any time.” Corrections of errors or mistakes or to prevent the miscarriage of justice must still be made within ninety days.
OTDC’s point heading on this issue mentions Ark. Code Ann. § 16-22-302, but their brief assigns error only under § 16-22-308. Thus, our analysis is pursuant to this latter section. | [
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Carleton Harris, Chief Justice.
Appellant, Leodis Randle, was charged by Information with the crime of burglary and the trial court, sitting as a jury, found Randle guilty and fixed his punishment at three years confinement in the Arkansas Department of Correction. From the judgment so entered, appellant brings this appeal. For reversal, six points are alleged, and we proceed to a discussion of the.contentions.
It is asserted that the evidence was not sufficient to sustain the conviction. The proof reflects that Officer McGill of the Little Rock Police Department answered a burglary alarm at approximately 7:45 p.m., on December 8, 1972, at the Sol Alman Company. Upon arrival, he found a hole in the wall of the building approximately one and one-half feet in diameter. While other officers went inside the building to investigate, McGill remained outside, and discovered Randle crawling out of the hole. Appellant was then placed under arrest and taken to the police unit. After entering the building, McGill observed that the office door, which was in the rear of the structure, “had been bursted open and several of the desk drawers had been gone through, and two fifths of whiskey was sitting just outside the office door.” Alman, owner of the building, testified that when he left his place of business on the afternoon of December 8, “everything was normal.” Upon returning to the building, the owner testified that a hole had been “knocked in the east side door” and this condition did not exist when he had left the building in the afternoon. He corroborated the evidence that the office had been “ransacked and drawers overturned, and it looked as though someone were going through all the drawers and files, and it was in disorder, disarray.” The State rested and appellant offered no evidence.
We do not agree that the evidence was insufficient to support the verdict, and this contention is answered by our case of Scates and Blaylock v. State, 244 Ark. 333, 424 S.W. 2d 876, where we said that a larcenous intent could fairly be inferred from the facts. We also referred to an earlier case, Clay v. State, 236 Ark. 398, 366 S.W. 2d 299, wherein it was stated, “We have held that the offense of burglary is complete even though the intention to commit a felony is not consummated.”
In Scates, we pointed out that the defendants were found inside a locked cafe containing amusement and vending machines, when they had no permission or lawful right or reason to be there. Here, appellant had no lawful right or reason to be in the Alman building; he was found there after office hours; although no tools were found in his possession, there is testimony that the hole was present, which was not there when the building was secured. Of course, as mentioned, the testimony reflected that the office appeared to have been thoroughly “ransacked”. The evidence was sufficient to sustain the conviction.
It is asserted that two terms of court had elapsed between the date of the filing of the information and the judgment of conviction, and the charges against defendant should have been dismissed under the provisions of Ark. Stat. Ann. § 43-1708 (Repl. 1964). This contention is unsound for three reasons. In the first place, we have held that a proper construction of the statute contemplates two terms of court passing in addition to the term in which the defendant is indicted. See O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618. In addition, the record reflects that two of the applications for continuance were made on motion of the appellant, and these delays could not be held against the State. Not only that, appellant had been released on bail and the applicable statute is, therefore, Ark. Stat. Ann. § 43-1709 (Repl. 1964) which provides that one on bail shall be discharged (unless the delay happened on his application) if he is not brought to trial before the end of the third term of the court in which such indictment is pending. See also State v. Davidson, 254 Ark. 172, 492 S.W. 2d 246.
It is next asserted that the defendant did not waive a jury trial but the transcript is clear to the effect that appellant appeared in person and by his attorney, and on motion of the appellant, the jury was waived.
It is next alleged that the State “apparently withheld information beneficial to the defendant since the result of the interrogation of him was not revealed.” The quick answer to this contention is that the record does not reveal any motion by appellant for discovery, or bill of particulars. Ark. Stat. Ann. § 43-2011.2 (Supp. 1973) provides the procedure for discovery and appellant did not avail himself of the provisions of this statute.
It is contended that the record does not reflect that the defendant was advised of the nature and possible effects of the charge against him or of his rights under the law. We disagree. The Information clearly sets out the burglary charge against Randle and the transcript also reflects that the defendant and his attorney were present at arraignment “and the defendant is called to the bar of the Court and informed of the nature of the charge filed herein,” and a plea of not guilty was entered.
Finally, it is asserted that Federal constitutional rights were violated, but no additional argument is presented, and we find no merit in the contention.
It follows, that the judgment should be, and hereby is, affirmed.
The court desires at this time to call attention to the first sentence of Rule 9 (f) which has not been complied with in this case, and which reads as follows:
“Arguments shall be presented under subheadings numbered to correspond to the outline of points to be relied upon.” This is not the first time that this rule has been violated, nor is present counsel the only attorney to violate it. The six points relied upon for reversal are set out individually as required by subsection (c); however, the argument under all points, covering two and one-half pages, is “mingled” together under the general heading, “Argument”, and even then such argument is not consecutively set forth, as stated in the points. The purpose of Rule 9 (c) and (f) is to aid the court in following the arguments, and to enable it to determine whether there is merit in any alleged point of error. To “dig out” the particular sentence or paragraph which deals with a specific asserted point is discomfiting and burdensome. Preparation of a brief in the manner described above can only create confusion. Nothing herein said is meant to imply that an attorney cannot argue points that are interlinked (where one can hardly be argued without including the other), and likewise, it is, of course, entirely proper to mention that a particular point was covered by the argument under a preceding point, for we desire no reiteration. Accordingly, we take this occasion to urge the members of the Bar of Arkansas to follow strictly the procedures mentioned in these rules which will substantially aid this court in handling its work load more efficiently and expeditiously.
By Act 185 of 1955, the General Assembly amended the statute to read'that the offense of burglary is committed on the unlawful breaking or entering with the intent to commit any felony, or larceny.
The attorney representing appellant on appeal is not the same attorney who represented him on trial. | [
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J. Fred Jones, Justice.
The appellant Gerald D. Fowler, a real estate broker doing business as Ozark Hills Realty, brings this appeal from a judgment of the Pulaski County Circuit Court sustaining an order of the Arkansas Real Estate Commission suspending the appellant’s broker license for a period of six months because of unprofessional conduct, and misrepresentations, in violation of Ark. Stat. Ann. § 71-1307 (a), (c), (h) and (j) (Repl. 1957). The pertinent portions of the statute provide as follows:
“The Commission may upon its own motion . . . suspend or revoke any license issued under the provisions of this Act [§§ 71-1301 — 71-1311]; at any time. . . the licensee in performing or attempting to perform any of the acts mentioned herein is deemed to be guilty of:
(a) Making any substantial misrepresentation, or
* * *
(c) Pursuing a continued and flagrant course of misrepresentation or making of false promises through agents or salesmen or advertising or otherwise, or
* * *
(h) Being unworthy or incompetent to act as a real estate broker or salesman in such manner as to safeguard the interests of the public, or
* * *
(j) Any other conduct whether of the same or a different character from that hereinbefore specified which constitutes improper, fraudulent or dishonest dealing.”
From the uncontradicted testimony, including, that of the appellant, the facts appear as follows: In February, 1973, the appellant entered into a purchase contract with Mr. and Mrs. Farwell for the purchase of about 365 acres of land in Carroll County. He made a downpayment on the property and went into possession of it. He had about 100 acres of the land adjacent to the highway platted or surveyed off into five acre plots and designated this area as “Zion Hills’ Acres.” He formed a corporation as “Zion Hill Corporation.” He then began attempting to sell the plots and did sell one plot to a Mr. DeNegri for approximately $5,000 cash and attempted to transfer title by use of a “Bill of Sale” form designated for use in the transfer of title to personal property rather than by a deed form designated for the transfer of title to real property. After Mr. DeNegri consulted an attorney, the Farwells executed a warranty deed transferring title direct to DeNegri who obtained a quitclaim deed from the appellant. The bill of sale was witnessed on March 6, 1973, and the warranty deed was dated March 13, 1973.
The appellant passed examination for a realtor’s license on January 9, 1973, and his license was issued on March 14, 1973. No improvements whatever were made on the land by the appellant but he began an advertising campaign through brochures mailed to prospective purchasers in other states. One such brochure was mailed to Victor I. Lypke on May 15, 1973, and it recited in part as follows:
“a distinctive new retirement and resort community —
ZION HILLS’ ACRES
developed by - ZION HILL CORPORATION of Eureka Springs, Arkansas - Rt. #2 - Box 730 72632 ZION HILL CORPORATION is making available FIVE ACRE MINI-PLANTATIONS and MINI-RANCH HOMESITES for ‘COUNTRY LIVING AT ITS’ BEST’
—with improvements and services—
OZARK HILLS REALTY — offers through exclusive listings these FIVE ACRE MINI-PLANTATIONS and MINI-RANCH HOMESITES — Also only through Ozark Hills Realty we have any size location of Zion Hills’ Acres, from V2 Acre lots (1 Vi acre-2 acre) to 5 Acre Mini-Plantations — Homesites CASH OR TERMS AVAILABLE * * *”
Mr. Victor I. Lypka was one of several persons who responded to the appellant’s advertisements and the appellant followed up with letters to Mr. Lypka. One such letter to Mr. Lypka was dated April 14, 1973, and read in part as follows:
“This is to acknowledge receipt of your note requesting information concerning Zion Hills’ Acres. We are sure that you saw our ad in the Eureka Springs paper. The ad read, ''Vi acre in the beautiful Ozarks for $100.00 with water, electricity, and paved roads. UNBELIEVEABLE? But possible through and in an introductory investment plan. We will do just that by your investment in Zion Hills’ Acres.’ The second page of this letter will explain that investment plan in detail. This will give the person investing his money a 10% to 15% per year return in the form of a Vi acre lot in the beautiful Ozarks with utilities.
Zion Hills’ Acres is a new development in the Ozarks, a short distance from Tablerock Lake, one of the nation’s most popular lakes and top bass lake of the nation. Zion Hills’ Acres is choice land for the person who likes country living at its best.
Zion Hill Corporation must limit this investment offer to the first 10 persons taking advantage of the offer.”
An undated letter to Mr. Lypka read in part as follows:
“We have listed for sale a development in the Ozarks known as Zion Hills’ Acres. This development known as Zion Hills’ Acres is nestled in and surround[ed] by mountains on the nearby edge of Tablerock Lake. The development is along Arkansas state highway #23, just 8 miles north of Eureka Springs, Ark.
* * *
This development has been subdivided into 5 acre tracts and are now available for those looking for their location in the Ozarks. The developer, Zion Hill Corporation, is improving each tract of land by running water, electrici ty, and paved roads to each one. Telephone service is available to each tract.
Zion Hill Corporation has asked our sales firm to extend a special offer to the first 10 persons interested in purchasing a 5 acre tract. This offer is for a limited number in this way — by that person purchasing a 5 acre tract on an investment opportunity for cash and then letting our real estate firm subdivide your 5 acre tract into smaller lots, leaving you a Vz acre lot to keep for your own. As we sell your lots, we will pay to you all of the money that you have paid for the whole 5 acres except $100.00. If you choose, you may keep the whole 5 acres. We will sign a contract with you on this plan.
What does this mean for you — it means that you can get a Vz acre lot in the Ozarks with water, electricity and paved roads for only $100.00 cost. We will sign a contract with you to resell your lots and pay back your total cost-less $100.00 that you paid for your 5 acre tract. All that we ask is that you simply take advantage of this offer by contacting us and looking into it further. What you will gain is a Vz acre lot in the beautiful Ozarks, valued at $2,500 and up with utilities for only $100.00 by investing in Zion Hills’ Acres. You have this oportunity by contacting us immediately.”
Under date of July 20, 1973, the appellant caused to be published in the Carroll County Tribune an advertisement reading in part as follows:
“Farms Ranches
Businesses Lake Properties Plus
a distinctive new retirement and resort community—
ZION HILL CORPORATION is making available five acre MINI-PLANTATIONS and MINI-RANCH HOMESITES for ‘COUNTRY LIVING AT ITS’ BEST’ — with improvements and services— PAVED ROADS — PRIVATELY OWNED WATER WELLS — ELECTRICITY — TELEPHONE SERVICE — L. P. GAS — RECREATIONAL AREA — SENSIBLE AND PROTECTIVE RESTRICTIONS
OZARK HILLS REALTY”
On appeal to this court the appellant relies on the following points for reversal:
“A. The Circuit Court of Pulaski County erred in finding the Arkansas Real Estate Commission’s actions against Appellant were not in violation of Arkansas Statutory provisions and procedures relating to the activities of real estate brokers. Appellant did not receive proper notice of the charges brought against him.
B. The Circuit Court of Pulaski County erred in upholding the Arkansas Real Estate Commission’s findings of fact and conclusions of law, as said findings and conclusions did not meet the requirements of Section 5-710 (b), Arkansas Statutes.
C. The Circuit Court of Pulaski County, Arkansas erred in finding that there was substantial evidence of record to support the decision of the Arkansas Real Estate Commission and that said decision did not constitute an attempt to discriminate against Appellant.”
In support of his first assignment the appellant argues that he did not receive proper notice of the charges brought against him by the Arkansas Real Estate Commission as required by two sections of the Administrative Procedure Act, Ark. Stat. Ann. §§ 5-708 and 5-712 (Supp. 1973), the pertinent provisions of which are as follows:
“§ 5-708. Administrative adjudication. — In every case of adjudication:
(a) All parties shall be afforded an opportunity for hearing after reasonable notice.
(b) The notice shall include:
0) A statement of the time, place, and nature of the hearing;
(2) A statement of the legal authority and jurisdiction under which the hearing is to be held;
(3) A short and plain statement of the matters of fact and law asserted.
§ 5-712. Licenses. — (c) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct warranting the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. ...”
The crux of appellant’s argument is that the appelleeCommission’s order and notice of hearing charged him with engaging in certain real estate broker’s activities before he had a valid Arkansas license, but that he was found to have violated § 71-1307 (a), (c), (h) and (j), supra, a statute which prohibits certain conduct by holders of Arkansas real estate broker licenses. Therefore, the appellant argues, the order and notice did not provide him with the true basis of the proceedings against him, which he needed to adequately defend himself. The order and notice of hearing is set out in appellant’s brief as follows:
“The Arkansas Real Estate Commission, on its own motion, has determined that there is sufficient evidence to charge Gerald D. Fowler d/b/a Ozark Hills Realty, a licensed real estate broker in the State of Arkansas, with violation of the following sections of the Real Estate Licensing Law and Commission regulations: Ark. Stat. Ann. §§ 71-1301, 71-1307 (a), (b), (c), (d), (e), (h), (j) and Regulations Nos. 39, 41, 42, and 43. These charges are based upon the following facts and allegations:
1. By an instrument entitled ‘Bill of Sale’ and dated March 6, 1973, Gerald D. Fowler and Peggy Sue Fowler purported to sell certain real estate in Carroll County, Arkansas, to Albert DeNegri. Said instrument by its specific language is intended to convey only ‘personal property’ and is incapable of conveying interest in realty-
2. Although Gerald D. Fowler represented to Albert DeNegri that the realty sought to be conveyed by the Bill of Sale was owned by Gerald D. Fowler and Peggy Sue Fowler, the realty was in fact owned by Ola Farwell and Maye Farwell.
3. In advertising property known as ‘Zion Hills’ Acres,’ Gerald D. Fowler utilized ‘blind ads.’ He represented that prospective purchasers could buy a Vi acre lot for $100.00 without revealing the prerequisite of a $10,-000.00 investment.
4. Gerald D. Fowler performed the foregoing acts, and others, before he held a valid Arkansas license as a real estate broker.
The Arkansas Real Estate Commission has determined that it should conduct a hearing to determine whether the real estate broker’s license issued to Gerald D. Fowler d/b/a Ozark Hills Realty should be revoked or suspended.
Under and pursuant to the provisions of Act 434 of Acts of Arkansas of 1967 and Ark. Stat. Ann. § 71-1308, notice is hereby given that a formal hearing regarding the charges and allegations set out herein will be held in the office of the Commission, 1311 West Second Street, Little Rock, Arkansas, at 11:00 a.m., on Monday, July 9, 1973. Gerald D. Fowler may be heard in person or by counsel and may offer such witnesses, affidavits, documentary evidence and/or depositions in defense of the above charges as he may reasonably desire.
ORDER AND NOTICE OF HEARING (AMENDED)
Paragraph 3 is amended as follows:
3. In advertising property known as ‘Zion Hills’ Acres,’ Gerald D. Fowler utilized ‘blind ads.’ He represented that prospective purchasers could buy a Vz acre lot for $100.00 without revealing the prerequisite of a $10,-000.00 investment. Said advertisements also falsely represented ‘Zion Hills’ Acres’ had the following improvements and services: paved roads, privately owned water wells, electricity, telephone service, recreational area.
A formal hearing regarding the charges and allegations set out herein will be held ... at 3:30 p.m. on Monday, September 10, 1973.”
We find no merit in the appellant’s contention. The first paragraph of the order and notice set out the statutes appellant was accused of violating and § 71-1307, supra, was included. The rest of the order set out the transactions in which the violation allegedly occurred. Furthermore, the appellant’s testimony and the exhibits which he submitted at the hearing indicate that he was prepared to answer the charges against him. In NLRB v. Mackay Radio & T. Co., 304 U. S. 333 (1937), the United States Supreme Court was confronted with a similar situation in which an employer was found guilty of an unfair labor practice which it contended was not within the issues of the violation charged. The charge alleged that the employer discriminated against five men by its refusal to rehire them, but the employer was found guilty of discrimination in discharging the men. In that case the court said:
“While the respondent was entitled to know the basis of the complaint against it, and to explain its conduct, in an effort to meet that complaint, we find from the record that it understood the issue and was afforded full opportunity to justify the action of its officers as innocent rather than discriminatory.”
The appellant next argues that the Real Estate Commission’s findings of fact and conclusions of law were im properly stated under the Administrative Procedure Act because they were neither expressed in statutory language or accompanied by a statement of facts supporting the findings. As a result, the appellant argues, a reviewing court has no way of knowing what specific facts the Commission relied upon in ordering the suspension of appellant’s license and therefore, cannot properly find whether the Commission’s conclusions were based upon substantial evidence. Appellant cites Ark. Sav. & L. Ass’n Bd. v. Central Ark. Sav. & L. Ass’n, 256 Ark. 846, 510 S.W. 2d 872 (1974), and First State Bldg. & L. Ass’n v. Ark. S. & L. Bd., 257 Ark. 599, 518 S.W. 2d 507 (1975), in support of this argument.'In the first place Ark. Stat. Ann. § 5-710 (b) (Supp. 1973) does not require findings of fact to be couched in statutory language as appellant contends. The statute, as already pointed out, says:
“In every case of adjudication, a final decision or order shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. . .” (Emphasis added).
The two cases relied on by the appellant turned on the failure of the administrative agency to set out the underlying facts. In First State Bldg. & L. Ass’n v. Ark. S. & L. Bd., supra, and the recent case of First Fed S. & L. Assoc. v. Ark. S. & L. Assoc. Bd., 257 Ark. 985, 521 S.W. 2d 542 (1975), we found the administrative agency decisions in violation of § 5-710 (b) because the findings of fact only paraphrased statutory language and did not state the underlying facts. The Real Estate Commission did set out its findings of fact in the case at bar and certainly the record supports its findings.
As to his third assignment of error, the appellant first contends that the Real Estate Commission’s decision cannot be supported because the statute under which it was reached, § 71-1307, only applies to activities of real estate licensees, and that at the time of the alleged wrongful acts the appellant was not so licensed. It is true that the unprofessional behavior alleged in the transaction with Albert DeNegri occurred before the appellant actually received his license on March 14, 1973. But even if the appellant were correct in his contention as to that transaction, the alleged acts in misrepresenting the price, services and improvement on the property clearly occurred after the license was issued to the appellant.
The appellant testified that he used the bill of sale form in the DeNegri transaction simply because he did not have an “Offer and Acceptance” form. He readily admitted there were no streets, water wells or utility lines on the property. He said utility lines ran along the highway adjacent to the property and that he intended to be personally responsible for building streets and drilling wells if, when, and as he sold the plots. He first testified that he had entered into a contract for the construction of streets but then admitted that he had not.
In support of his contention that there was no substantial evidence to support the findings and decision of the Commission, the appellant argues that there were two possible interpretations of the advertisements concerning services to and improvements on the property. One, that they were presently installed and available, and two, that they would be installed and made available in the future. The advertisements and letters, supra, on their face certainly would lead one to believe that service facilities and improvements therein set out, were already in place and ready for use.
The judgment is affirmed. | [
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Lyle Brown, Justice.
Appellant Nora Veasey sued appellee Roscoe Daniel Joshlin for personal injuries and property damages arising from an automobile collision. A settlement in the case was reached but Nora Veasey subsequently retracted her commitment to settle. The trial court held that the agreement, reached between the attorneys and with the consent of the parties, was binding and consequently not subject to rescission. Judgment was entered for the amount of the settlement. Nora Veasey concedes that the law concerning the validity of a compromise settlement is adverse to her position; however, she contends that she was denied her constitutional right of trial by jury. Ark. Const., art. 2, § 7.
On April 5, 1974, Joshlin’s attorneys submitted to Ms. Veasey’s attorneys an offer to settle the case for 112,500. Three days later Ms. Veasey’s attorneys submitted to her the offer. She accepted it and authorized her attorneys to consummate the settlement. The case was scheduled for trial on April 9 and Mrs. Veasey’s attorneys notified the clerk to remove the case from the trial docket. Joshlin’s attorneys im mediately transmitted the check and release to Ms. Veasey’s attorneys. Thereafter, and on April 12, Ms. Veasey called her attorneys and informed them that she changed her mind and wanted to retract the settlement. In her testimony at the hearing on motion for entry of judgment, Ms. Veasey testified that after deliberating on the offer for “a day or so” she notified her attorneys to effect the settlement; but then she talked to her husband and it was decided that the amount offered was too small. There was no contention of fraud or overreaching.
Judge Miller concisely stated the rule in McKenzie v. Boorhem, 117 F. Supp. 433 (1954):
Under the Arkansas law, an attorney has no implied authority to enter into a compromise agreement. Turner Furnishing Goods Company v. Snyder, 201 Ark. 699, 146 S.W. 2d 913; Cullin-McCurdy Construction Company v. Vulcan Iron Works, 93 Ark. 342, 124 S.W. 1023. However, when a client gives his attorney specific authority to enter into a compromise agreement, such an agreement, if entered into by the attorney, is valid and binding. Byford v. Gates Brothers Lumber Company, 216 Ark. 400, 225 S.W. 2d 929; Moore v. Murrell, 56 Ark. 375, 19 S.W. 973; 30 A.L.R. 2d, 944-958; 5 Am. Jur., Attorneys at Law, § 98, Pages 318-329; 7 C.J.S. Attorney and Client, § 105, p. 928 et seq.
Ms. Veasey’s contention that the entry of the judgment deprived her of a jury trial is wholly without merit. By her action in deliberately authorizing a settlement she, of course, waived a formal trial.
Affirmed. | [
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PER CURIAM
The appellant, James J. Kelly, apparently wishing to practice law without taking and passing the bar examination, filed a complaint in the circuit court against “Robert L. Rodgers [Rogers], Secretary and Law Examiner Board.” No service of process appears to have been had, but Rogers filed a demurrer to the complaint. The court sustained the demurrer and dismissed the complaint. We affirm.
The complaint states no facts constituting a cause of action against Rogers, who is secretary of the State Board of Law Examiners, or anyone else. The practice of law is not a profession open to a person simply because he wishes to engage in it. “The right to practice law is not an absolute right, but a privilege only.” Wernimont v. State ex rel. Little Rock Bar Assn., 101 Ark. 210, 142 S.W. 194, Ann. Cas. 1913D, 1156 (1911). Kelly’s complaint states no facts showing either that he is entitled to take the bar examination or that he is entitled to practice law as a matter of constitutional right.
Affirmed.
Fogleman, J., not participating. | [
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J. Fred Jones, Justice.
The question on this appeal is whether certain specified paper, plastic and styrofoam products are exempt from the Arkansas Gross Receipts tax under Ark. Stat. Ann. § 84-1904 (i) (Repl. 1960).
The facts appear as follows: The appellee, Little Rock Paper Company, is a wholesaler of paper and plastic products in Arkansas. Many so-called “fast food” restaurants purchase from the appellee certain paper, plastic and styrofoam containers and other items which the restaurants use in dispensing their food and drink products to the buying public. The specific items involved in this case case are separately designated as follows:
“A. Paper and styrofoam cups in various sizes used for coffee, soft drinks and other liquids-
B. Paper and plastic lids for such cups;
C. Paper bowls and wrappers used for pies and pastries;
D. Paper boats and sacks used for French fried potatoes;
E. Paper plates;
F. Paper wrappers, boxes, and foil wrappers used as containers for sandwiches;
G. Paper and plastic containers for cole slaw, baked beans, etc.
H. Plastic lids for such containers.
I. Paper buckets and boxes used for fried chicken.
J. Paper and plastic straws and stirrers;
K. Plastic tableware and utensils;
L. Paper napkins and premoistened towelettes.”
The appellant, Richard R. Heath, as Director of the Department of Finance and Administration, collected the gross receipts tax from the appellee paper company on the sale of the above products. The tax was paid under protest and the paper company filed its petition in chancery to recover the tax so paid pursuant to Ark. Stat. Ann. § 84-1911 (Repl. 1960). The chancellor held the items exempt and on appeal to this court the Director relies on the following point for reversal:
“The various items of tangible personal property purchased by members of the Arkansas Restaurant Association are not exempt from Arkansas Gross Receipts tax pursuant to Section 84-1904 (i).”
Ark. Stat. Ann. § 84-1904 (i) (Repl. 1960), under which the exemptions are claimed in this case, reads as follows:
“Gross receipts or gross proceeds derived from sales for resale to persons regularly engaged in the business of reselling the articles purchased, whether within or without the State, provided that such sales within the State are made to persons to whom sales tax permits have been issued as provided in section 12 [§ 84-1913] of this act.
Goods, wares, merchandise, and property sold for use in manufacturing, compounding, processing, assembling or preparing for sale, can be classified as having been sold for the purposes of resale or the subject matter of resale only in the event such goods, wares, merchandise, or property becomes a recognizable, integral part of the manufactured, compounded, processed, assembled or prepared products. Such sales of goods, wares, merchandise, and property not conforming to this requirement are classified for the purpose of this act [§§ 84-1901 — 84-1904, 84-1906 — 84-1919] as being ‘for consumption or use.’ ”
It is well settled that the clear Legislative intent in the passage of § 84-1904 (i), supra, was to exempt purchases that are made for the purpose of resale, to the end that the same property will not be twice subjected to the same tax. Hervey v. Southern Wooden Box, 253 Ark. 290, 486 S.W. 2d 65; Hervey v. International Paper Co., 252 Ark. 913, 483 S.W. 2d 199.
In Wiseman v. Ark. Wholesale Grocers’ Ass’n, 192 Ark. 313, 90 S.W. 2d 987 (1936), we denied a tax exemption upon the purchase of wrapping paper, paper bags and twine to be used in the retail sale of groceries. We reasoned in that case that grocers buy such wrapping materials for consumption in the course of their own business rather than for resale.
In McCarroll, Comm’r of Rev. v. Scott Paper Box Co., 195 Ark. 1105, 115 S.W. 2d 839 (1938), it was stipulated that Wortz Biscuit Company, a manufacturer, purchased paper boxes to be used in the sale of prepackaged cakes, cookies, etc. Wortz also sold the same products in bulk at a lower price. The paper boxes became a component of the product which was sold in the box to the jobber, retailer, and ultimately to the consumer. The cost of the box measured into, and became an element in the cost to the final consumer. In that case we said:
“It is clear that the Wortz Company sells at wholesale to a retailer a package of its manufactured products — not a quantity of cakes or cookies or crackers enclosed in a box it has consumed.”
In that case we also said:
“Expressed differently, the Wortz Company proposes to prepare, box, and offer in the market at wholesale the particular commodities in question. It buys flour, sugar, soda, salt, shortening, flavoring, etc., as ingredients. None of these components is taxable under act 154 when purchased for the purposes mentioned. The plan of sale, however, calls for wrapping or enclosure in individual cartons at the time of manufacture; and it is for the latter purpose that purchase of pasteboard boxes is made.”
The appellant in the Scott Paper Box Co. case relied on Wiseman v. Ark. Wholesale Grocers’ Ass’n, supra, but Wiseman was distinguished in the Scott Paper case in language as follows:
“In the Wiseman case the wrapping paper, bags, and twine were sold for convenience of retailers in manually wrapping or enclosing bulk commodities. The price of a dozen oranges, a peck of potatoes, a roast, and other merchandise customarily found in a retail grocery store, is predetermined either by weight or count, without reference to the attributes of delivery.”
In Hervey v. Southern Wooden Box, supra, we held that paper cups sold to the Coca Cola Bottling Company for use in its automatic vending machines were exempt from the tax, but that wooden boxes sold to the bottling company for the delivery of bottled drinks were not exempt.
In the case at bar the sales were made to various members of the Arkansas Restaurant Association primarily engaged in the “fast food” business. Mr. Wesley Hall, the president of Minute Man of America, Inc., testified that the Minute Man chain of restaurants operates on a self-service and pick-up basis under which food is purchased for consumption on the premises or to be carried out. He said that because of public demand for speed and convenience of service, Minute Man package services all its products in the various paper, plastic and styrofoam containers listed in the complaint, and pays sales tax on its purchases of the various items listed in the complaint. He said that paper cups, lids and straws are purchased solely for use in the sale of soft drinks at retail; that these drinks are compounded by Minute Man personnel and after the customer pays therefor, the Minute Man personnel puts the lid on the container, adds a straw and the assembled product is delivered to the customer. He said the components of a 16 ounce Coke currently cost Minute Man 6.6 cents; that the cup, lid and straw make up 55.3% of the cost, or 3.65 cents, and the cost of each compo nent, including the container, lid and straw, is passed on to the consumer. He said the same procedure is used in the sale of a deep dish apple pie. He said the pie is placed in a single serving paper cup and a lid, a plastic spoon and paper napkin are added thereto. He said the same procedure was used in connection with such items as hamburgers and French fries. He said the French fries are sold in paper trays with wrapper, napkin and fork added, and that these compoents make up 20% of the product cost and 5.8% of the retail selling price. He said that the wrapper on the container for French fries served the same purpose as the lid on the beverage containers, and that the fork and napkin are provided solely for the convenience of the customer. He said that the food products sold by Minute Man are placed in the containers for delivery to the customer after the food itself is actually prepared.
On cross-examination Mr. Hall said that a customer at Minute Man has an option of receiving coffee in a paper cup, styrofoam cup, or a china cup, and that the charge for the cup of coffee is the same in spite of the containers available to the customer. He said that if a customer chooses not to take a lid or straw in the purchase of a soft drink, there is no price reduction for the product. He said that straws, napkins and items of that nature are not necessary items in preparing beverage products for sale but are offered to the customer as a convenience. He said the food wrappers for hamburgers and sandwiches have the name of the firm on them, and that the paper cups, napkins and paper bags used for carrying items out of the eating establishment have advertising printed on them.
On redirect examination Mr. Hall said that soft drinks sold by Minute Man automatically include a straw and lid and it is then up to the customer to decide whether or not the straw and lid leave the premises or stay on the premises.
Mr. Marvin D. Johnson, Jr., president of some of the Kentucky Fried Chicken outlets in Arkansas, testified as to the procedure in the sale of Kentucky Fried Chicken products substantially as did Mr. Hall. He said the Kentucky Fried Chicken products are placed in different size containers and sold to the customer under order designation such as “dinner box,” “bucket of chicken,” etc. He said that the dinner box contained three pieces of chicken, cole slaw, mashed potatoes and gravy, each in a four ounce container with a lid. He said two rolls, a spoon, a towelette and a napkin are also added, and the cost of the paper products is included in the overall price charged the customer. He said that potato salad and cole slaw were made up at the various Kentucky Fried Chicken outlets and delivered to the customer in a 16 ounce paper salad container with a plastic lid. He said that the Kentucky Fried Chicken outlets are not manufacturers of “fast food” products but are retailers; that the outlets purchase raw chicken and then cook the chicken and place it in the boxes for sale at each retail outlet. He said Kentucky Fried Chicken retail outlets do utilize paper bags for containers for boxed chicken, and that paper bags when so used, are not unlike the utilization of paper bags in retail grocery stores.
Mr. Richard W. Sherwood, president of W. G. W. Cor° poration, trading as “Burger King,” testified as to the procedure in packaging and selling that corporation’s products substantially as did Mr. Hall and Mr. Johnson. He said Burger King is a national chain of franchised restaurants and operates on a self-service and pick-up basis because the bulk of its trade is carry out. He said that each of the three Arkansas Burger King locations holds a gross receipts tax permit and pays a three per cent sales tax on the total revenue taken in at the three locations.
We conclude that the chancellor was correct as to items A, B, C, D, F, G, H and I, but on trial de novo we reverse as to items E, J, K and L. We are of the opinion, under the evidence in this case, the paper and styrofoam cups used for dispensing coffee, soft drinks and other liquids, and the paper and plastic lids for such cups; the paper bowls and wrappers used in the dispensing of pies and pastries; the paper boats and paper covers used for French fried potatoes; paper wrappers, boxes, and foil wrappers used as containers for sandwiches; the paper and plastic containers for cole slaw, baked beans, etc., and the plastic lids for such containers; and the paper buckets and boxes used for fried chicken are all items exempt under our reasoning in McCarroll v. Scott Paper Box Co. and Hervey v. Southern Wooden Box, supra, but we hold that paper plates; paper and plastic straws and stirrers; plastic tableware and utensils; paper napkins; brown paper sacks and premoistened towelettes are subject to the tax under our reasoning in Wiseman v. Ark. Wholesale Grocers’ Ass’n. supra.
The decree is affirmed as to items A, B, C, D, F, G, H and I, and is reversed as to items E, J, K and L.
Affirmed in part; reversed in part.
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Carleton Harris, Chief Justice.
Cíete Callaway, Jr., appellant herein, was found guilty of murder in the second degree by a jury which fixed his punishment at 21 years confinement in the Arkansas Department of Correction. From the judgment so entered, appellant brings this appeal. For reversal, five points are relied upon which we proceed to discuss, though not in the order set out by appellant.
It is contended that the verdict is not supported by substantial evidence. We disagree. The evidence on the part of the state was that on May 24, 1974, Frank Smith was sitting on his porch around 11:00 P.M. talking with a friend, Morris Bigelow, when a car came around the corner; someone fired from the car, and Bigelow, frightened, left immediately. Eva Jean Cook, who lived “a house away” from Smith testified that she heard Smith talking on his porch before the shooting and after the shots, she went to the Smith premises, observing Cíete Callaway with a shotgun in his hands, Smith lying at the corner of the house near the porch. Before calling the police and an ambulance, the witness stated that she heard Cíete say, “I told you I was going to kill you, you son of a b...” She said that Callaway then got in his car and left. The witness testified that she heard two shots, seeing the first one fired, and subsequently hearing a second. Callaway was arrested at 11:45 P.M., and told the arresting officer that he was on his way to the police station. Officer Edrington testified that appellant had a 12-gauge shotgun, with three loaded shells, the gun normally holding five shells, and not being plugged. Callaway contended that he acted in self-defense. He said that he had observed Smith earlier passing by his house, and that he then went in and obtained his shotgun; that he was fearful since Smith had earlier shot him, and had threatened to kill him. He said that when he drove in front of Bigelow’s house, he saw Smith “coming around the house”; that Smith hollered, “ ‘Hey Red,’ and when he said that I went to shooting. ’ ” Appellant added that Smith had his hand in his pocket and when the latter said that he wanted to talk to appellant, “I went to shooting.” He said he shot Smith the second time because “I didn’t want him to kill me.” The jury is the fact-finder, and it is apparent the evidence was sufficient to sustain the conviction.
It is next asserted that the trial court erred in allowing the state to introduce a statement of appellant made a short time after the shooting of Smith. According to Lt. James Cowart, Callaway was arrested at 11:45 P.M., informed of his rights under Miranda at 12:08 A.M. and after appellant had first executed a waiver, wherein he acknowledged that he had been advised of his rights, the waiver form also listing same, his statement was taken beginning at 12:20 A.M. The statement was subsequently transcribed and Callaway, after suggesting certain corrections, and initialing same, signed the statement. The court conducted a Denno hearing in chambers and found that the statement was voluntarily made.
It is argued that Callaway has no formal education and can only write his name because his sister taught him to do so, and that appellant did not understand his rights when he signed the waiver. Complaint is also made that his statement was taken too soon after the offense occurred. The answers to the questions in the written statement pretty well reflect that they were the actual answers of appellant without any prompting and, while he may not have had much formal education, it is evident that he understood the statement for two corrections were made. The complaint that the statement was taken too soon is a little unusual since most complaints in this category are that defendants are held for too long a period of time before any statement is taken. Certainly, there is no showing that Callaway was taken advantage of, or treated unfairly, due to the statement being made within the hour. Appellant had not been wounded, and according to the testimony, appeared to be in full possession of his faculties and “very calm”.
There is no contention that appellant was mistreated or coerced into signing the statement; in fact, the defense offered no testimony at the Denno hearing. We find no merit in the argument.
It is next contended that the court permitted the state to impeach its own witness, Eva Jean Cook, and that this constituted error. This point is somewhat difficult to understand. The witness had made a statement to the officers after the shooting and part of her testimony was slightly different from a statement that had been made in the written statement. Actually, considering the testimony given by the witness, heretofore set out, the conflict was minor, but she was asked about this conflict by the state’s attorney, the prosecutor referring to the statement that she had made. Defense counsel objected to the use of the statement, declaring that he had not seen it, whereupon the court directed the prosecutor to furnish counsel with a copy. The next objection was that leading questions were being asked and the court commented that the state’s attorney was only trying to refresh the memory of the witness. The prosecutor commenced reading from the statement, but the court stopped counsel, and at the request of defense counsel, ordered the portion read stricken from the record.
We do not agree that the questioning of the witness constituí fed an effort to impeach her testimony for the witness never denied giving the written statement, nor any of its contents. To the contrary, she agreed that she had made the statement and she testified that it was the truth; it appeared that the witness had simply forgotten the particular fact that she was being interrogated about. We find no violation of Ark. Stat. Ann. §§ 28-706 and 28-708 (Repl. 1962).
It is asserted that the trial court committed error in allowing the state to deliver to the jury transcribed written statements of appellant’s alleged confession while the tape containing appellant’s statement was being played, “said tape being the best evidence.” Callaway’s statement had been recorded on tape and was subsequently reduced to writing by a stenographer, who did not testify at the trial, and who was not present when the tape was made. Copies of the statement reduced to writing were passed out to members of the jury. Counsel for appellant objected, stating:
“If Your Honor, please, I would object, and ask that the recording is the best, the tape is the best evidence.
THE COURT:
Yes, sir. The tape is the best evidence, and it is my understanding the State proposes to play the tape.
Is this correct?
MR. SMITH:
Yes, Your Honor.”
The same objection was subsequently reiterated, overruled, and the tape was played, the jurors all having a copy of the transcription.
Here, on appeal, it is argued that error was committed in permitting the jurors to read copies of appellant’s statement, while the tape was being played, because, says appellant, this procedure permitted undue emphasis to be placed on the statement. Appellant cites the Oklahoma case of Bonicelli v. Stole, 339 P. 2d 1063 (Okla. Cr. App.) and Duggan v. State, 189 So. 2d 890 (Fla. App.). Both of these cases hold that to permit written transcripts of a tape to be furnished to the jury is error, contrary to the rules against repetition, improper emphasis, and hearsay. The question has never been presented to this court. As to the objection made (in effect being that the written statements were hearsay), we find no merit for the reason that the statement was signed by appellant and changes in the statement initialed by him. It will be noted that the objection made does not go to the question of improper emphasis or undue repetition and this objection not having been made, we cannot pass upon the issue.
Finally, it is alleged that the trial court erred in not allowing appellant to snow the full extent of the seriousness of the wounds received when shot by Smith on February 9, 1974, and in not allowing Solomon Witherspoon, a witness on behalf of appellant, to relate threats made on that date that he intended to kill appellant. Dr. Gene M. Townsend, called by appellant, testified that he had treated Callaway early on the morning of February 9, 1974. From the record:
“Q. Can you describe to the jury the gunshot wounds and where he was shot?
‘. Well, yes, sir. He had one gunshot wound in the left flank area, and one in the left side of the face. And, I don’t recall, but he may have had a flesh wound in the left shoulder. That’s a vague recollection. It was of no medical significance, and I didn’t write it down if he did. But he had these two which were of considerable significance. The one in the left flank pursued a course upward and to the right, fragmenting the spleen, perforating the front and back of the stomach, completely tearing out the left lobe of the liver, penetrated the pericardium, which is the sac around the heart, and came to rest just to the right of the breastbone. The one in his . . . The wound of entrance in his left face was just in front of his left ear, and there was no wound of exit.”
Counsel for the state then announced that he was objecting to the line of questioning, stating that it was irrelevant and immaterial. The court said that it considered the testimony of the doctor relevant to the extent of the number of times that the man was shot, the fact that he was shot, but the subsequent treatment was not relevant. The examination then proceeded as follows:
“Q. What bullets did you state that you removed from him?
A. I removed both of those that I described, the one into his left face and the one that entered through the left flank.
Q. Did you remove the bullet in his head through his nostril? ***
A. Yes, sir. I removed the one from the face through his nostril. It had lodged in his posterior pharynx.
Q. And the one that went into his flank, where did you remove that from?
A. Just to the right of the breastbone.
Q. To the right of the right breastbone?
A. Just to the right of the . . . The breastbone is in a center line. It’s just to the right side.
Q. And he has been a patient of yours all during this time?
A. Yes, sir.
Q. And still is a patient?
A. Well, not in connection with that. He’s over that injury.”
It thus appears that the doctor gave a pretty thorough description of the injuries and the only complaint reflected by the record was that the doctor was not permitted to testify to “the seriousness of it” and “the defendant’s suffering.” Of course, when the doctor said that two of the wounds were of “considerable significance”, he was testifying as to the seriousness of the wounds, and he could hardly have testified himself as to appellant’s suffering.
Solomon Witherspoon testified on behalf of the appellant as to events which occurred on February 9. After telling about the shooting, Witherspoon testified further:
“And Frank come in the back door there. He went out to load his gun. I come out — out from there with Frank. So, he said he loaded his gun and when he run out, he run out of bullets, and so the boys ...”
At this point, the state objected to the testimony as being irrelevant, while counsel for defendant said he was trying to show Smith’s intent, “reloading the gun, trying, wanting to kill him.” Of course, the testimony quoted reveals the gun was reloaded and implies the purpose of the reloading. At any rate, counsel apparently accepted this ruling. Thereafter, appellant’s counsel inquired of the witness if Frank Smith made any statements that he would kill Cíete Callaway. An objection by the state was sustained and this concluded the testimony of Witherspoon.
We hold there was no error, it being sufficient to point out that no proffer of Witherspoon’s testimony was made and we accordingly do not know what answer the witness would have given. Dixon v. State, 228 Ark. 430, 307 S.W. 2d 792.
On the whole case, we find no reversible error.
Affirmed.
The evidence reflected that on February 9, 1974, Smith, Callaway, and several other persons, were gambling and that an altercation arose between Smith and appellant. On that occasion, Smith shot Callaway several times and Callaway spent about a month and a half in a hospital before recovering from wounds administered in the shooting.
.Miranda v. Arizona, 384 U.S. 436.
Jackson v. Denno, 378 U.S. 368. | [
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J. Fred Jones, Justice.
This is an appeal by Hoyt Rounsaville and his wife from a circuit court judgment for damages to the Rounsaville land following condemnation by the appellee Arkansas State Highway Commission in connection with the acquisition of right-of-way for Interstate 540 in Van Burén, Crawford County, Arkansas.
The appellants owned an 80 acre tract of land on the outskirts of Van Burén and the appellee took fee title to .13 acres by condemnation and deposited $50 into the registry of the court as just compensation. The appellant owners prayed damages in the amount of $20,000. A jury trial resulted in a verdict in favor of the appellants landowners for $250 and judgment was entered thereon.
The appellants rely on a single point for reversal as follows:
“The trial court erred in overruling objections to certain testimony of the appellee’s expert [Mr. McMurrough].”
Mr. Robert Geliy testified as an expert for the appellant landowners. He said that in his opinion the highest and best use of the property was for development purposes; that in his opinion the 80 acre tract prior to the taking on August 3, 1966, had a fair market value of $750 per acre, or a total of $60,000; that following the taking, and by reason thereof, the fair market value of the remaining 79.87 acres was reduced to a fair market value of $500 per acre or $39,925, making a difference of $20,065 as damages to the tract caused by obstructions which would prevent the normal flow of building or development in the direction of the Rounsaville tract. Mr. Geliy testified on cross-examination and also on redirect examination that he considered some sales of comparable land in the vicinity of the Rounsaville land in arriving at his opinion as to the market value of the Rounsaville land.
The owner Mr. Rounsaville testified that prior to the taking his property was worth around $800 per acre and that immediately after the taking, and by reason thereof, its value was reduced to $350 per acre, leaving a difference in the fair market value in the amount of $36,000 as his damages and just compensation.
Mr. Ken McMurrough, an expert appraiser who testified for the appellee Highway Commission, said that he made a market study in arriving at his opinion as to the market value of the Rounsaville property. He said that after making a market study of the sales in the general area, he formed an opinion as to the market value of the Rounsaville property. He said he considered the property to have a before taking value of $47,000. He said the property was partially in a creek bottom and partly on upland, and that he considered approximately 60 acres of the property suitable for residential development which he considered to have a value of $500 per acre. He said that about 20 acres of the property was low, creek bottomland which he considered to be of strictly agricultural value he estimated at $250 per acre. He said that the . 13 of an acre taken by the Highway Commission was in a low area of a creek bottom and that he did not consider the taking as having an adverse effect on the remainder of the land. He said that in his opinion the value of the area taken was less than $50, which he rounded off then at a value of $50, and that the remaining land had an after taking value of $46,950.
On direct examination Mr. McMurrough testified in part as follows:
“Q. In making your study at the time of the project being in progress up there, did you make a market study in regard to the value of the land of Mr. Rounsaville as well as other lands?
A. Yes, sir. I made a market study of the market value in the general area.
Q. All right, did you consider other sales in the near vicinity of Mr. Rounsaville?
A. Yes, sir. I considered sales of property, similar property, either in whole or in part to the Rounsaville property.
Q. All right, will you refer there, and I will ask you in regard to a sale from VanZandt to Sagely. Did you consider this?
A. That was one of the sales that I considered in my valuation to the Rounsaville property, it being in fair proximity to the subject property.”
Mr. McMurrough was then asked and testified as to the sales of other lands in the area having similar characteristics as the Rounsaville tract. He then testified as follows in regard to one of the sales in the vicinity:
“Q. Okay, did you check the court records to verify this sale?
A. I verified this from the Circuit Clerk’s records in the court house and also talked to Mr. VanZandt.”
The appellants objected to the witness testifying that he talked with the original owners and purchasers of the property in regard to the sale price on the ground that the testimony was hearsay as to value, and then the record appears as follows:
“Q. All right, Mr. McMurrough, the sale from Mr. VanZandt to Sagely, will you refer to your records and I’ll ask you again if you checked the court records to see if this was made a public record, this sale?
A. This sale took place on April the 6th, 1966, it’s recorded in Book 256 at Page 20, in the Circuit Clerk’s records, Crawford County, and this is Mr. VanZandt to Mr. Sagely, eight and three-tenths acres for a consideration of—
MR. ROBINSON: Now, Your Honor, I object. The question he asks was is it on the records and he has testified it’s in the records, yet any further testimony is not responsive to the question.
THE COURT: All right, we’ll let him ask the question. I’m sure he will.
MR. DIAL: Q. Mr. McMurrough, was the consideration shown in the court records?
A. I’m not sure whether the consideration was indicated in the deed records; however, this sale and all the other sales that I have testified here today, or will testify to, I have either talked to the buyer or the seller and got verification from both of them about the circumstances surrounding these sales to determine that they were fair, arms-length transactions and the consideration was verified by either the buyer or the seller or the realtor making the sale, and in addition to that, I think the most of the sales, maybe all of them I testified to here today, have been testified to in this court at the time of my appraisals.”
Mr. Ken McMurrough, the expert appraiser who testified for the Highway Commission, and whose testimony is questioned on this appeal, was qualified as an expert by over 12 years employment as a staff appraiser for the Highway Department and prior to that he was in the insurance and real estate business for six or seven years. He was a licensed real estate broker and had appraised property in all sections of Arkansas. His qualifications as an expert were not questioned in this case.
The actual crucial question presented was whether Mr. McMurrough’s testimony as to amounts paid in the sale of comparable land was admitted as independent evidence of value of the land being condemned. Now, had he testified that VanZandt sold similar land to Sagely for $600 per acre and, therefore, since the land was comparable to the land condemned, the market value of the condemned land was $600 per acre, such testimony would have presented a different question than the one that is presented and, perhaps, such evidence as stated in Nichols on Eminent Domain, vol. 5, § 21.3 [1], “must be proved with as much formality as any other material fact. ...” But it must be remembered that in this case McMurrough was testifying as an expert witness and his opinion testimony as to the value of the land involved would have been admissible strictly as opinion testimony without further qualification as to how he arrived at his opinion.
In Nichols on Eminent Domain, vol. 5, § 21.3 [2], is found the following:
“Even in the states which reject sales of similar lands as independent evidence of value, it is usually held that on cross-examination of an expert witness testifying as to value, for the purpose of testing his knowledge of the market value of land in the vicinity, he may be asked to name such sales of property (and the prices paid therefor), as have come to his attention. ...”
Of course, the sale of similar lands as independent evidence of value has been so thoroughly accepted in Arkansas that the citation of cases is not necessary. In the case of People v. Alexander, 27 Cal. Rptr. 720, 212 Cal. App. 2d 84, the court said:
“The specific question involved is whether in describing comparable sales the witness may rely for the facts upon his own investigation of records in the recorder’s office, and in the courts, the stamps upon deeds and the statements of those who personally participated in the sales. The important evidentiary point involved is whether or not the opinion of value which the witness has given is sustained by proper reasons. From a practical standpoint, if each person previously involved in effecting comparable sales should have to be called to the stand to establish the detailed facts of such sales, it would lengthen litigation of this kind out of all reason and would make it almost impossible for the State or defending landowners to make a proper showing as to valuation opinion within a reasonable time and at reasonable expense. Therefore, within proper limits, facts acquired by hearsay and used by a valuation expert in support of his conclusion that certain sales are comparable and therefore furnish support for his opinion concerning value have been customarily received in evidence in this state. In People ex rel. Dept. of Public Works v. Donovan, 57 Cal. 2d 346, 19 Cal. Rptr. 473, 475, 369 P. 2d 1, 4, it is said:
‘An expert may detail the facts upon which his conclusions or opinions are based, even though his knowledge is gained from inadmissible or inaccurate sources. (Betts v. Southern California etc. Exchange, 144 Cal. 402, 77 P. 993; McElligott v. Freeland, 139 Cal. App. 143, 33 P. 2d 430.)’ ”
In the case of United States v. 18.46 Acres of Land, etc., 312 F. 2d 287 (1963), a part of a dairy farm was being condemned and the difference in fair market value of the property involved was the measure of damages. The owner testified to $30,000 before and $15,000 after the taking, and his expert testified to $30,000 and $20,000. The government’s expert testified $27,000 and $24,500. The jury returned a verdict of $12,000. The government’s expert testified that the best method of arriving at market value was the use of comparable sales and the court held this to be the rule generally recognized. The expert witness stated that he “found four farms, one of them immediately adjacent that had sold only the year before.” At this point the counsel for the appellee objected to the witness stating any price with respect to the comparable sale on the ground that it would be hearsay. The trial court ruled that any answer was hearsay unless the witness was present when the deal was consummated. In reversing the district court, the United States Court of Appeals, Second Circuit, quoting from United States v. 5139.5 Acres of Land, Etc., 200 F 2d 659, at page 662, said:
“ ‘Cases can readily be imagined where the court in its discretion should exclude evidence of this sort because of remoteness in time of the sales or because the property sold was not similar to that being valued, but it should not ordinarily be excluded under the hearsay or best evidence rules. * * * Ordinarily evidence as to facts of this sort given by an expert as the basis of his opinion as to value comes with a sufficient guaranty of trustworthiness to justify the relaxation of the hearsay and best evidence rules.’ ”
The court then continued:
“In the case at bar, the court excluded evidence of the comparable sales as hearsay and not in the exercise of discretion, but had the court done the latter, we think exclusion of the evidence would also have been erroneous on the state of the record before us.”
In the case of United States v. 5139.5 Acres of Land, Etc., 200 F. 2d 659, the government had condemned some land and had deposited $30,300 as just compensation. A jury verdict fixed the value of the tract at $64,762.62. The government appealed alleging error in the rejection of testimony. In reversing the judgment of the district court, the United States Court of Appeals for the Fourth Circuit said:
“One of the witnesses for the government who had testified as an expert was asked as to sales of similar lands in the community near the time of the condemnation which he had taken into consideration in arriving at his estimate of value. He proposed to testify as to a number of sales which he had learned of in his investigation and which he had verified by examination of the land records in the county. This testimony was excluded because the records were not produced or the persons who had participated in the sales called as witnesses. This, we think, was error. While the admission of testimony of this sort was a matter very largely within the sound discretion of the trial judge, the exclusion here rested, not upon a sound exercise of that discretion, but upon an erroneous application of the hearsay and best evidence rules. The witness within reasonable bounds should have been allowed to give the jury the facts upon which his opinion as to value was based; and it would unduly hamper the production of such testimony and needlessly prolong the trial to require that the sales be proved with the particularity that would be necessary in suits to enforce the contracts relating thereto. The hearsay and best evidence rules are important, but they should not be applied to prevent an expert witness giving in a reasonable way the basis of his opinion. As said by this court in United States v. 25.406 Acres of Land, 4 Cir., 172 F. 2d 990, 993, certiorari denied 337 U.S. 931, 69 S. Ct. 1496, 93 L. Ed. 1738, ‘Testimony as to value would be worth little or nothing, if witnesses were not allowed to explain to the jury their qualifications as experts and the reasoning by which they have arrived at the expert opinion to which they testify; and the rule is that they may thus give the grounds of their opinions. Wigmore on Evidence 2d Ed. sec. 562; Lewis, Eminent Domain 3d ed. Sec. 654.’ ”
In the Kentucky case of Stewart v. Commonwealth, 337 S.W. 2d 880, the landowner was awarded judgment of $63,000 as the value of her property in a condemnation proceeding. The property owner appealed contending that the award was inadequate because of prejudicial error in the exclusion of certain evidence relating to the sale of comparable property. A part of the evidence alleged to have been erroneously excluded included the testimony of a real estate expert which was excluded on the ground that his information was based on hearsay. In reversing the trial court, the Supreme Court of Kentucky on this point said:
“It is quite often true that the most thorough, comprehensive and accurate professional appraisals are based almost entirely on ‘hearsay’ in the legal sense of the word. Persons who appraise or deal in real estate professionally make it their business to keep abreast of current transactions. The value of an appraisal depends very largely on the manner in which it is developed. It is of importance to the court and jury to know how it was made and on what information it was based. If some or all of that information was acquired by hearsay, but through the customary channels of the trade, or by methods recognized as standard in the making of appraisals, we see no useful purpose in a rule of absolute exclusion. Therefore, confining the effect of this opinion to witnesses whose qualifications include experience in appraising or dealing in real estate as a business, we hold that testimony as to the prices paid in comparable sales is not inadmissible merely because it is secondary or hearsay evidence. Since Mr. Hennessy was professionally qualified as an appraiser and real estate broker, the fact that he had verified the prices by personal contact with the purchasers was a sufficient basis to admit his testimony on the comparable sales.”
We are of the opinion that the trial court did not abuse his discretion or commit reversible error in admitting the testimony of Mr. McMurrough under the record before us in this case. Furthermore, most of Mr. McMurrough’s testimony which the appellants contend was error had already been testified to by the appellants’ own expert witness Mr. Geliy. Of course, Geliy’s testimony, as to comparable land values, was elicited on cross-examination without objection and, the appellants seem to concede that his testimony was admissible because it was elicited on cross-examination. In any event, the validity of Geliy’s testimony as to the price on comparable sales is not questioned. Geliy testified that the sale from VanZandt to Sagely was 1,290 acres and McMurrough said it was 1,205 acres. Geliy said the Burns to VanZandt sale was $600 per acre and McMurrough testified that it was $600 per acre. Both witnesses testified that in the Tankersly to Edwards transaction the sale price was $345 per acre. Consequently, if the court had committed error in the admission of McMurrough’s testimony on the ground of hearsay, it would have been harmless error in the light of Geliy’s testimony. See Kansas City S. R. Co. v. Morrison, 103 Ark. 522, 146 S.W. 853 (1912); Mine LaMotte Lead & S. Co. v. Con. Ant. Coal Co., 85 Ark. 123, 107 S.W. 174 (1907); Nelson v. Busby, 246 Ark. 247, 437 S.W. 2d 799 (1969); Bower v. Murphy, 247 Ark. 238, 444 S.W. 2d 883 (1969).
The judgment is affirmed. | [
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PER CURIAM.
The State brings this Motion for Rule on the IAM. alleging that the Clerk of the Court improperly declined to file the State’s petition for review of the court of appeals’s decision denying the State’s motion to dismiss in this case. From the pleadings, it appears that there is a dispute as to whether appellee perfected a conditional plea of guilty in order to preserve his right to appeal. The court of appeals’ decision to deny the motion to dismiss will permit that court to review that question as it considers the merits of the appeal. In these circumstances, we do not review the denial of a motion for dismissal by the court of appeals. The court of appeals has determined that it will review this case on its merits and the Clerk of the Court correcdy declined to lodge the State’s petition; therefore, we deny the State’s motion for Rule on the Clerk.
Motion denied. | [
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TOM GLAZE, Justice.
Petitioner Tammy Cunningham files ipetition ce. us requesting we issue a writ of prohibition to the Benton County Circuit Court, ordering it to dismiss a felony count of manufacturing methamphetamine. We accepted jurisdiction of this matter under Rule l-2(a)(3) and Rule 1-2(b)(1),(2),(3), and (5) (1999). Basically, Cunningham had a felony conviction and charge filed against her and pending in Missouri and Arkansas at the same time. She now claims Arkansas authorities violated the Interstate Agreement on Detainers (IAD), Ark. Code Ann. § 16-95-101, Article 111(a) (1987), by failing to bring her to trial within the statute’s limitation period of 180 days after she notified the Arkansas prosecuting attorney of her place of imprisonment in Missouri and requested a final disposition of the Arkansas felony charge. Cunningham’s contention is without merit; therefore, we deny her petition.
On September 22, 1997, Cunningham was convicted in Missouri of possession of a controlled substance and sentenced to three years; she commenced serving that sentence on November 13, 1998. On December 12, 1997, the Benton County Prosecuting Attorney obtained an arrest warrant against Cunningham for the methamphetamine charges. The Arkansas drug crimes were alleged to have occurred on October 13 and 15 of 1997 — after her Missouri conviction, but before she started serving her term in prison in that state on November 13, 1998. On December 15, 1998, Cunningham, while in a Missouri correctional center, signed an Interstate Detainer Agreement, which was mailed to the Arkansas prosecutor and received by him on December 23. The agreement on detainer notified the prosecutor of Cunningham’s request that a final disposition be made of the Arkansas drug charge pending against her. On February 24, 1999, Cunningham was brought to Arkansas and placed in jail, after which she was formally charged and arraigned in early March 1999. While Cunningham was in Arkansas, Missouri released her on parole on March 26, 1999.
On July 12, 1999, the Benton County Circuit Court appointed counsel for Cunningham, and four different trial settings were scheduled by the court between July 12 and September 27, 1999. All trials were continued, and those continuances were charged against Cunningham. On September 27, Cunningham moved to dismiss the Arkansas drug charge, arguing the State had violated the IAD 180-day limitation period. She claimed the 180-day period commenced when the Benton County Prosecutor received her notice on December 23, 1998, and ended on June 21, 1999. She points out that not only had she not been brought to trial within 180 days from the receipt of her notice in Arkansas, but also over 200 days had expired before she was even appointed defense counsel.
The State rejoined that the IAD-limitation period was inapplicable after Missouri authorities placed Cunningham on parole on March 26, 1999, and that Arkansas’s speedy-trial rule and limitation period of twelve months applied to her felony charge. See Ark. R. Crim. P. 28.1 and 28.2 (1999). The State submits Arkansas’s speedy-trial time commenced when Cunningham was incarcerated on February 24, 1999. Under the State’s view, Cunningham needed to be tried on or before February 24, 2000. Thus, because all continuances of Cunningham’s trial have been attributable to her since July 12, 1999, the State asserts Arkansas’s speedy-trial limitation has not, as yet, expired. We agree.
Article 111(a) of Arkansas’s Interstate Agreement on Detainers, see § 16-95-101, is the provision upon which Cunningham relies, and it reads in relevant part as follows:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
In analyzing the IAD, we first note that it represents a compact among 48 states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States. See Cuyler v. Adams, 449 U.S. 433 (1981). The IAD is a congressionally sanctioned interstate compact within the Compact Clause, U.S. Const, art. I, § 10, cl. 3, and thus is a federal law subject to federal construction. Id. The Supreme Court in Carchman v. Nash, 473 U.S. 716, 719 (1985), stated that the purpose of the IAD is “to encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.” It has also been stated that the IAD is “only concerned that a sentenced prisoner who has entered into the life of the institution to which he or she has been commit ted for a term of imprisonment not have programs of treatment and rehabilitation obstructed by numerous absences in connection with successive proceedings relating to pending charges in another jurisdiction.” United States v. Roberts, 548 F.2d 665, 670-71 (6th Cir.), cert. denied, 431 U.S. 931 (1977).
The issue to be decided is whether Cunningham continued under the term of her imprisonment for IAD purposes after Missouri released her on parole. The courts having construed Article 111(a) have generally stated that once a prisoner is released on parole, he or she is no longer in the class of prisoners covered by the IAD. See United States v. Black, 609 F.2d 1330 (9th Cir. 1979); see also United States v. Saffeels, 982 F.2d 1199 (8th Cir. 1992) (when revocation of prisoner’s parole was pending, even though prisoner was in jail awaiting trial, his status was no different than that of a pretrial detainee, and “by its own terms, Article III [of the IAD] only applies during the period when a prisoner continues to serve a term of imprisonment”); cf. United States v. Reed, 620 F.2d 709 (1980) (neither a pretrial detainee nor a parole violator has a sufficient interest in the rehabilitation programs of his confining institution to justify invocation of the IAD); United States v. Harris, 566 F.2d 610 (8th Cir. 1977) (where court held IAD did not apply to a pretrial detainee who was awaiting trial and not subject to imprisonment term, and stated the IAD appears plainly limited to a prisoner — serving a term of imprisonment).
State cases have held similarly. For example, in State v. Dunlap, 290 S.E.2d 744 (N.C. App. 1982), the court held that, upon the release of a defendant on parole from prison in New York before the expiration of the 180-day period, the IAD no longer governed defendant’s right to a speedy trial. The Dunlap court explained that the defendant’s right to a speedy trial was fully protected under North Carolina’s Speedy Trial Act, and it further reasoned that once the defendant was released on parole, the cloud of the detainer no longer had an adverse effect on the prisoner’s status within the prison. See also Womble v. State, 957 S.W.2d 938 (Tenn. Crim. App. 1997) (protections of the Compact do not extend to a defendant who has been placed on parole in the sending state; the plain language of the Compact indicates that a “term of imprisonment” does not include a term of parole); State v. Foster, 812 P.2d 440 (Or. App. 1991) (when defendant was released on parole, the relevant term of imprisonment ended).
While not cited to us, our research reveals the case of Snyder v. Sumner, 960 F.2d 1448 (9th Cir. 1992), where the court held that the IAD continued to apply to a prisoner when he or she was paroled by the sending state while awaiting trial in the receiving state. The court further concluded that once the defendant had been received by the receiving state, the IAD’s limitation period started to run and could not be turned off by a grant of parole by the sending state. The Snyder court expressed its concern that to hold the IAD inapplicable in these circumstances would undermine the Act’s purposes by giving the receiving state a way to bypass the requirements of the IAD. We simply do not share the Snyder court’s concerns that the IAD’s requirements can or will be so easily manipulated by the states, but more importantly, we believe that the rationale in Snyder ignores the plain language contained in Article 111(a) of the Act, which, by its own terms, provides the IAD only applies during the period when a prisoner continues to serve a term of imprisonment.
In conclusion, we acknowledge Cunningham’s reliance on Loane v. State, 12 Ark. App. 374, 677 S.W.2d 864 (1984). There, the defendant had been serving a sentence in Oklahoma when an information was filed against him in Arkansas and he was brought to this state pursuant to the IAD. While in Arkansas, the defendant was paroled by Oklahoma authorities and released on bond in this state. For that reason, the trial court ruled that Rule 28.1, rather than the IAD, provided the speedy-trial rules to be applied from the time of the defendant’s release on bond. The court of appeals disagreed, holding that the trial court erred when it refused to apply the IAD speedy-trial rules just because the defendant was out on bond. The court of appeals extracted from Blackmon v. Weber, 277 Ark. 393, 642 S.W.2d 294 (1982), the fact that the defendant there had been out on bond, yet this court had “held that the speedy-trial rules of the [IAD] still applied.” Loane, 12 Ark. App. at 376.
In short, while Loane might be read to support Cunningham’s position, that decision made no mention of the Supreme Court’s Cuyler holding, nor was the Loane court given the benefit of the arguments and other legal authorities of which we have been apprised in this appeal. Nonetheless, to the extent our decision conflicts with Loane, that decision is overruled.
For the reasons above, we deny Cunningham’s petition.
We note that in Snyder the Ninth Circuit Court of Appeals reversed the district court which relied on United States v. Black, 609 F.2d 1330 (9th Cir. 1979), cert. denied, 449 U.S. 847 (1980). The lower court decided the IAD no longer applied when Snyder was paroled. The Snyder court distinguished its earler Black decision by stating that defendant Black lost his IAD right because he was sent to the receiving state to serve a sentence already imposed. | [
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Frank Holt, Justice.
A jury first determined appellant guilty of grand larceny. Then pursuant to the habitual offender act, Ark. Stat. Ann. § 43-2328 (Supp. 1973), documents evidencing four previous convictions were introduced and appellant's punishment was assessed by the jury at 31 Vi years, the maximum, in the Department of Correction. Appellant asserts for reversal that the court erred in allowing the jury to consider as evidence of prior convictions two documents which do not reflect whether the appellant was represented by or had validly waived counsel. The state with commendable candor concedes this is error.
Appellant’s court appointed and present counsel objected to the introduction .of these two deficient documents. However, they were admitted into evidence on the basis that they reflected appellant had received a jury trial. Therefore, it presumably would appear that appellant was represented by counsel. It is well settled that “presuming waiver of counsel from a silent record is impermissible.” Burgett v. Texas, 389 U.S. 109 (1967). The introduction of a previous conviction document, where that record concerning representation is “silent,” is prejudicial error. Roach v. State, 255 Ark. 773, 503 S.W. 2d 467 (1973); Richards v. State, 254 Ark. 760, 498 S.W. 2d 1 (1973); Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600 (1972); and Burgett v. Texas, supra.
Appellee urges that a practical and appropriate procedure now would be to remand the cause for an eviden-tiary hearing by the trial court similar to that in Jackson v. Denno, 378 U.S. 368 (1964), to determine if appellant was represented by or validly waived counsel during the trials of his two out of state convictions. By Ark. Stat. Ann. § 43-2105 (Supp. 1973), following Denno, a confession of a defendant is not admissible into evidence for a jury’s consideration until the court has first held an in chambers hearing and there determined by a preponderance of the evidence that the confession was free and voluntary. When determined as being admissible our statute requires that thereupon “[I]ssues of fact shall be tried by a jury. ...” In Kagebein v. State, 254 Ark. 904, 496 S.W. 2d 435 (1973), we recognized that Denno and our statute are for the purpose of preventing a jury from hearing an involuntary confession. There we said “[I]t is not intended to restrict evidence a jury may hear after a court determination of voluntariness has been made. The defendant still has the constitutional right to Ir ve his case heard on the merits by a jury, including the weignt and credibility the jury might give to the voluntariness of the confession.”
The state says, however, in the case at bar, that upon a remand it is willing to shoulder the heavy burden of proof in a Denno hearing to convince the trial court beyond a reasonable doubt that the appellant was represented by or validly waived counsel at the time of his previous convictions. If the state meets that burden of proof with respect to the admissibility of the deficient documents, then the state asserts appellant’s sentence should stand and would comport with appellant’s constitutional rights. If, however, the burden of proof is not met, then the state would have the election to retry the appellant or accept the minimal enhancement of his sentence based upon the two documents to which no objection was made. We cannot agree with this suggested procedure.
Ark. Stat. Ann. § 43-2330.1 (Supp. 1973), our habitual criminal statute, reads in pertinent part:
The following trial procedure shall be adhered to in cases involving habitual criminals:
(1) The jury shall first hear all the evidence pertaining to the current charge against the defendant and shall retire to reach its verdict as to this charge, based only upon such evidence; *** [which was done in the case at bar]
(2) If the defendant is found guilty, the same jury shall sit again and hear evidence of defendant’s prior conviction(s). Provided, that the defendant shall have the right to deny the existence of any prior conviction (s), and to offer evidence in support thereof. (Emphasis ours.)
Certainly, it is for the trial court to determine the preliminary issue as to admissibility of the evidence. Cantrell v. State, 117 Ark. 233, 174 S.W. 521 (1915). The court should not now be asked to do indirectly what it could or should not do directly at the initial trial; i.e., determine the truthfulness or veracity of the admittedly infirm documents without that issue being determined by the jury. Cf. Cantrell v. State, supra. That is an issue which our legislature clearly intended for the jury’s determination once the trial court finds it admissible. Citations are not necessary to the effect that we have consistently held that a statute, which is penal in nature, as here, must be strictly construed.
Appellant’s counsel had a right to rely upon our previous decisions interpreting this statute and the procedure followed. Wilburn, supra. When the prior convictions were introduced, counsel properly objected and pointed out the constitutional infirmity. In Denno the defendant testified before the jury as to his version of his confession. According to Wilburn, it was unnecessary for appellant to testify or introduce any evidence, neither of which he did, since the documents were, as admitted, constitutionally defective. The burden was upon the state to offer proper documents or evidence before the jury to correct the defects. Our state and federal constitutions guarantee appellant the right to confront and cross-examine adversary witnesses. The jury, by this highly penal statute should be allowed, if requested, to weigh the credibility of these witnesses on a most vital and crucial fact issue.
In the case at bar, in accordance with our well established procedure when an infirm document of a previous convic tion is admitted as evidence, we reduce appellant’s sentence. Roach v. State, supra, Richards v. State, supra, and Wilburn v. State, supra. Here we reduce appellant’s sentence to a total of four years (one year minimum for grand larceny [Ark. Stat. Ann. § 41-3907 (Repl. 1964)], plus three years for the two unquestioned previous convictions) to remove any possibility of prejudicial effect to the appellant resulting from the two defective documents concerning previous convictions. If the state, through the attorney general, desires to accept this reduction within seventeen calendar days, the judgment is affirmed as modified. Otherwise, the judgment is reversed and remanded.
Affirmed upon acceptance of modification.
Harris, C.J., and Fogleman and Brown, JJ., dissent. | [
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DONALD L. Corbin, Justice.
The State appeals from the stice. Court’s order denying the State’s motion for reconsideration and granting Appellee Raphel Jerome Cherry a new trial. For reversal, the State argues that the trial court abused its discretion in granting Cherry a new trial. This court has jurisdiction of the present matter pursuant to Ark. Sup. Ct. R. 1-2(a)(2) and (8), as well as Ark. R. App. P. — Crim. 3. We find no merit in the State’s argument, and thus, affirm the decision of the trial court.
The record reflects that Cherry was convicted of first-degree murder following a two-day jury trial and was sentenced to life in prison. Following his conviction and sentencing, Cherry filed a motion for a new trial, pursuant to Ark. Code Ann. § 16-89-130 (Repl. 1987), alleging juror misconduct. The allegations involving jury misconduct were brought to the trial court’s attention by Patrick Hart, an alternate juror. Hárt told the court bailiff that he did not believe that Cherry had received a fair trial. Mr. Hart reported to the bailiff that the jurors had been discussing the case during various breaks in the trial even though the trial court had admonished them not to discuss the case. Mr. Hart also reported that some of the jurors had made up their minds with regard to Cherry’s guilt before the case was submitted to them. The bailiff reported this information to the trial court, who in turn notified counsel.
The State resisted Cherry’s motion for a new trial on the ground that he made no assertion of prejudice. Moreover, the State argued that there was no precedent for granting a new trial resulting from juror misconduct where such conduct was not the result of extraneous prejudicial materials or improper outside influence. The trial court conducted a hearing on September 23, 1999, and each of the twelve jurors, plus Mr. Hart and the bailiff were called to testify. The trial court properly limited the scope of the examination to matters that took place prior to formal deliberations, and did not allow either party to examine the jurors with regard to matters involving the jury’s actual deliberations.
Mr. Hart testified under oath that jurors had repeatedly discussed the case during breaks in the trial. According to Mr. Hart, the first time jurors discussed the case was before the State had rested its case. Mr. Hart also testified that prior to the time that the defense presented its case, jurors discussed the fact that Cherry was probably guilty because of the simple fact that his brother testified against him, even though the judge instructed them that such testimony could not be considered because it was improperly admitted. Seven out of the twelve jurors admitted to either hearing or participating in conversations about the trial prior to the time formal deliberations began. While most of these jurors could not recall specifics about these conversations, they admitted to discussing the facts of the case, as well as the evidence. Some of the jurors also admitted that they overheard discussions regarding Cherry’s guilt or innocence. Each juror denied, however, that any of these conversations had affected their ultimate decision to convict Cherry.
After hearing the testimony and weighing the credibility of the witnesses, the trial court found that Cherry was entitled to a new trial. The trial court found credible Mr. Hart’s testimony that some jurors had made up their minds before formal deliberations had begun. The trial court also noted that it had repeatedly instructed the jury not to discuss the case, but that they did so in contravention of his instructions. The State then filed a motion asking the trial court to reconsider its decision, arguing that Cherry failed to demonstrate that he was prejudiced by the jurors’ misconduct. The State also attempted to attack Mr. Hart’s veracity by submitting affidavits from some of the jurors. These affidavits stated that after Hart testified at the new-trial hearing, he returned to the waiting room and told some of the jurors that he did not tell on anyone and that the judge and bailiff had approached him and started asking questions about the case. The State argued that this inconsistent recitation of the sequence of events proved that Mr. Hart’s testimony was not credible. The trial court denied the motion and this appeal followed.
This court has said that a decision on whether to grant or deny a motion for new trial lies within the sound discretion of the trial court. Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997). We will reverse a trial court’s order granting a motion for a new trial only if there is a manifest abuse of discretion. Id. A trial court’s factual determination on a motion for a new trial will not be reversed unless clearly erroneous. Clayton v. State, 321 Ark. 602, 906 S.W.2d 290 (1995). The State argues as its only point on appeal that the trial court abused its discretion by granting Cherry a new trial. In urging this court to reverse the trial court’s grant of a new trial, the State submits three reasons as to why the trial court’s decision was an abuse of discretion: (1) the grant of new trial was erroneous absent a finding of prejudice; (2) any finding of prejudice based on Mr. Hart’s testimony was erroneous; and (3) a new trial was not warranted. We disagree.
We recognize at the outset that the present appeal is somewhat extraordinary. First of all, this situation is not governed by Ark. R. Evid. 606(b), because the jurors were not questioned about matters involving their formal deliberations. Rather, the hearing focused on discussions that occurred prior to formal deliberations. Thus, the United States Supreme Court’s holding in Tanner v. United States, 483 U.S. 107 (1987), is not controlling. In Tanner, the United States Supreme Court held that it was not error for the district court to refuse to conduct an evidentiary hearing at which jurors would testify about drug and alcohol use during the trial. In so holding, the Court stated that under the federal rules of evidence a verdict may not be impeached by jury testimony on matters involving jury deliberations. Second, the jury misconduct that occurred here did not involve the consideration of extraneous prejudicial information, nor were there any allegations that an improper outside influence affected the jury deliberations. While those are certainly the most common types of jury misconduct, they are not exclusive types of misconduct that warrant relief.
In the present appeal, we are faced with intrajury misconduct that occurred prior to the jury beginning formal deliberations. Seven of the twelve jurors admitted that they either participated in or overheard conversations about the case prior to formal deliberations. Some of those jurors believed that those conversations took place after the defense rested, but others were unable to recall exactly when the conversations occurred. Mr. Hart testified, however, that the discussions took place every time the jurors were left alone together. While most jurors could not recall the specific context of these discussions, a review of the jurors’ testimony reveals the following:
Q Okay. Do you recall what was said?
A Not specific details. I seem to recall that some of the evidence was talked about like the keys, presence of the keys, the glass at the rear door.
Q I want to ask you. Do you think it affected other persons in the jury room as what they talked about?
A Not being the other people, I really don’t know. The only facts that — they just discussed the evidence that was presented and tried to clear up some points about some of that evidence....
Q Okay. So, they expressed their point of view about the case and the facts presented prior to this case being decided?
A Yes, sir.
Q Okay. And you don’t know how that impacted on their decision?
A No, sir, I don’t.
Q And this discussion was about the facts of the case?
A Yes.
Q Okay. And discussion by more than one juror?
A Yes.
Q Several jurors, in fact?
A Yes.
Q Probably what? Eight or ten or so?
A No. I’d say maybe three to five.
Q ... These three to five jurors might have formed an opinion about guilt or innocence, is what you’re saying?
A Yes.
These comments, considered in light of Mr. Hart’s testimony that some jurors had already decided the case, clearly support a finding that there was a reasonable possibility of prejudice that resulted from the premature discussions about the facts, issues, and evidence in the case.
Following allegations of juror misconduct, the moving party bears the burden of proving that a reasonable possibility of prejudice resulted from any such juror misconduct. Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993); Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992). We will not presume prejudice in such situations. Id. The moving party must show that the alleged misconduct prejudiced his chances for a fair trial and that he was unaware of the bias until after the trial. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). Whether unfair prejudice occurred is a matter for the sound discretion of the trial court. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990).
Here, the trial court found Mr. Hart’s testimony that some jurors had prematurely decided the issue of Cherry’s guilt to be credible, and we cannot say this was error, let alone manifest error. This issue turned on the credibility of witnesses, and this court has repeatedly held that the issue of witness credibility is for the trial judge to weigh and assess. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998); Myers v. State, 333 Ark. 706, 972 S.W.2d 227 (1998). Accordingly, this court will defer to the superior position of the trial court to evaluate the credibility of witnesses. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997).
We agree with the State that a defendant is entitled to a fair trial, not a perfect trial. See Clayton, 321 Ark. 602, 906 S.W.2d 290. Cherry, though, was deprived of even a fair trial. In arguing that Cherry failed to demonstrate that he was prejudiced by the jury misconduct, the State fails to recognize that the prejudice in the case at bar stems from the fact that some jurors may have made up their minds about Appellee’s guilt or innocence before the case was submitted to them. According to Hart’s testimony, this may have occurred prior to the time the State had rested its case, and thus, before Cherry had a chance to present his defense. For even one juror to prematurely decide a defendant’s guilt before hearing all the evidence and being instructed on the law, deprives that criminal defendant of his right to a fair and impartial jury. Moreover, by discussing the case prematurely, those jurors who had already made up their minds could have possibly influenced others who were undecided about Cherry’s guilt.
In order to receive a new trial, Cherry was not required to demonstrate exactly how he was prejudiced; rather, he only needed to prove that there was a reasonable possibility of prejudice. See Larimore, 309 Ark. 414, 833 S.W.2d 358. Once Cherry demonstrated this possibility of prejudice, the trial court could not sit idly by and do nothing. The fact that this problem arose in a posttrial situation left the trial court with only one option, to grant Cherry a new trial. Section 16-89-130(c)(7) (Repl. 1987) provides in part:
(c) The court in which a trial is had upon an issue of fact may grant a new trial when a verdict is rendered against the defendant by which his substantial rights have been prejudiced, upon his motion, in the following cases:
(7) Where, from the misconduct of the jury, or from any other cause, the court is of [the] opinion that the defendant has not received a fair and impartial trial. [Emphasis added.]
Thus, it was clearly within the trial court’s discretion to grant Cherry a new trial.
We reject the State’s argument that the trial court erred in finding prejudice. The federal courts of appeals’ treatment of intrajury misconduct is enlightening to the situation at hand. The courts of appeals have previously held that jury misconduct involving premature discussions may prejudice a defendant. See United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998), cert denied, 526 U.S. 1007 (1999); United States v. Resko, 3 F.3d 684 (3rd Cir. 1993). In Resko, during the course of the trial, a juror approached the court’s bailiff and reported that members of the jury had engaged in premature discussions. The bailiff reported this to the trial court, who in turn informed counsel. After rejecting counsel’s motion for individualized voir dire of the jury panel, as well as a motion for a mistrial, the trial court called the jurors en masse, told them of the problem, and requested each juror to fill out a questionnaire. The questionnaire consisted of the following two questions:
1. Have you participated in discussing the facts of this case with one or more other jurors during the trial? Yes_ No_
2. If your answer to Question No. 1 is “Yes,” have you formed an opinion about the guilt or non-guilt of either defendant as a result of your discussions with other jurors? Yes_ No_
All twelve jurors answered “yes” to the first question and “no” to the second question. The trial court did not inquire further, and the trial resumed with the defendants ultimately being convicted.
On appeal, the Third Circuit concluded that the trial court erred by declining Resko’s motion to engage in further inquiry to determine whether the jurors had maintained open minds. The court pointed out that the prohibition against jurors discussing the case before they have heard both the evidence and the court’s legal instructions is a generally accepted principle of trial administration. The court then set forth several reasons for the prohibition on premature deliberations. For example, the court pointed out that the jury system is meant to involve decision making as a collective, deliberative process, and premature discussions among individual jurors may thwart that goal. Also, requiring the jury to refrain from prematurely deliberating the case in a criminal matter helps protect a defendant’s right to a fair trial under the Sixth Amendment, as well as his or her due-process right to place the burden on the government to prove its case beyond a reasonable doubt. We are persuaded by this reasoning.
Another federal case discussing the issue of intrajury misconduct is United States v. Nance, 502 F.2d 615 (8th Cir. 1974). In Nance, the court of appeals held that it was not an abuse of discretion for the trial court to deny a motion for a new trial. In so holding, however, the court pointed out that the only testimony regarding juror misconduct came from the defendant’s counsel, and was thus hearsay. None of the jurors were questioned about their participation in discussions during the course of the trial. In addition, although an alternate juror reported the premature discussions to defense counsel after the case had been submitted to the jury, defense counsel did not report this to the court until after an unfavorable verdict had been rendered. Unlike the present situation, the court in Nance pointed out that the alternate juror stated that despite the alleged discussions, no juror had firmly made up his mind. Again, the prejudice in this case stems from the fact that some jurors not only made up their minds about whether Cherry was guilty, but also discussed those opinions with other jurors, in essence thwarting the collective, deliberative decision-making process of the jury.
In sum, the trial court was faced with evidence that jurors had discussed the facts in the case, as well as the evidence. As egregious as such conduct may have been, we cannot say that standing alone, it would have been enough to support a finding of prejudice. However, when this conduct is considered in light of the testimony that some jurors prematurely formed a conclusion about defendant’s guilt and then discussed those conclusions with other jurors, it does support a finding of prejudice. In light of the foregoing, we cannot say the trial court manifestly abused its discretion in granting Cherry a new trial.
Affirmed.
Glaze, Imber, and Smith, JJ., dissent. | [
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George Rose Smith, Justice.
This is a postconviction petition under Criminal Procedure Rule 1. In 1967 the appellant McDonald was charged with first degree murder in the shooting of a Little Rock police officer. McDonald, represented by three retained attorneys, entered a negotiated plea of guilty, the prosecutor having waived the death penalty. A jury, empaneled pursuant to Ark. Stat. Ann. § 43-2152 (Repl. 1964), fixed McDonald’s punishment at life imprisonment.
Almost seven years later McDonald filed the present petition, asserting that he was denied the effective assistance of counsel. At the Rule 1 hearing McDonald testified in his own behalf. The State introduced the testimony of two of McDonald’s former attorneys and of two officers who were present when McDonald made a confession of guilt soon after his arrest. After the Rule 1 hearing the trial judge made detailed findings of fact and concluded that there was no merit in the petition. This appeal is from that ruling.
McDonald’s present attorneys argue primarily that this court, in measuring the effectiveness of counsel, should adopt a standard of reasonable competence instead of the standard that we have previously approved, as in Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973): “A charge of this sort [ineffective representation] can prevail only if the acts or omissions of the attorney result in making the proceedings a farce and mockery of justice, shocking the conscience of the court, or if the representation is so patently lacking in competency or adequacy that it becomes the duty of the court to be aware of and correct it.”
There are two answers to the appellant’s contention. First, not all of the federal courts have abandoned the “mockery of justice” standard. For example, in a recent case, United States v. Hager, 505 F. 2d 737 (1974), the Court of Appeals for the Eighth Circuit explained that the mockery of justice standard “is not meant to be an impenetrable obstacle to any meaningful analysis of the facts of the particular case. ” The court then quoted with approval this language from its earlier opinion in McQueen v. Swenson, 498 F. 2d 207 (1974):
Stringent as the “mockery of justice” standard may seem, we have never intended it to be used as a shibboleth to avoid a searching evaluation of possible constitutional violations; nor has it been so used in this circuit. It was not intended that the “mockery of justice” standard be taken literally, but rather that it be employed as an embodiment of the principle that a petitioner must shoulder a heavy burden in proving unfairness.
Secondly, McDonald has not met the burden of proving ineffective representation, no matter what standard is applied. At the Rule 1 hearing McDonald did not deny having killed the officer; in fact, his testimony did not even touch upon the circumstances surrounding the homicide. McDonald merely stated that he did not really want to plead guilty, that he was persuaded by his attorneys to do so, and that they did not explain the possibility of his being convicted of murder in the second degree. It is also argued now that the defense lawyers were at fault in not interviewing every witness for the State.
The overwhelming weight of the proof is contrary to McDonald’s testimony. One of his former attorneys testified that the State’s case had been one of the strongest he had ever seen: McDonald admitted having shot the officer without warning; witnesses heard the shot and saw McDonald leaving the scene; the ballistics report was affirmative. Capital punishment was then in effect. McDonald had a criminal record. The attorneys interviewed some of the officers and had copies of the witnesses’ statements. There is no showing whatever that additional interviews would have revealed facts favorable to McDonald.
For from two to three weeks the attorneys spent most of their time working on the case — preparing for trial and seeking a waiver of the death penalty, which was all that McDonald was interested in. The prosecutor repeatedly refused to make that concession unless the police department would agree to it. According to the attorneys, McDonald was thrilled and pleased when the negotiations were finally successful. It is also significant that McDonald waited almost seven years, and until after the Supreme Court’s invalidation of existing capital punishment statutes, before expressing his dissatisfaction with his lawyers’ handling of his case. Upon the record now before us we must conclude that the trial judge’s findings are supported by the great preponderance of the proof.
Affirmed.
Jones, J., not participating. | [
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PER CURIAM.
Appellant Gregory Donald has filed a motion RIAM. appeal. The record reflects that the judgment and commitment order was filed on November 9, 1999, but that the notice of appeal was not filed until January 18, 2000. Appellant’s counsel, Charles S. Gibson, has filed an affidavit pursuant to Ark. R. App. P. — Crim. 2(e) admitting responsibility for the failure to timely file the notice of appeal.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Pack v. State, 336 Ark. 268, 983 S.W.2d 126 (1999) (per curiam); Brewer v. State, 334 Ark. 234, 973 S.W.2d 482 (1998) (per curiam); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). A copy of this per curiam opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
Motion granted. | [
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PER CURIAM.
On May 4, 2000, the Circuit Court of IAM. County, Sixth Division, entered an order ruling that Mr. James F. Valley shall not be certified as a candidate for State Representative, District 99, in the Democratic primary election to be held on May 23, 2000. The court further ordered that if the ballots for the primary have already been printed, any votes cast for Mr. Valley shall not be counted.
On May 9, 2000, Mr. Valley filed a notice of appeal from the May 4 order. On May 9, Mr. Valley also filed a petition for writ of certiorari, requesting that a stay of the May 4, 2000, order be granted. In Mr. Valley’s notice of appeal, he designated the entire record for the appeal, but stated he had unsuccessfully attempted to contact the court reporter, Ms. Ellen Kuciejski, regarding the transcript and to make the necessary financial arrangements.
On May 10, 2000, the Phillips County Board of Election Commissioners responded stating, among other things, that Mr. Valley’s petition and motion for stay be denied, and that his motion to expedite appeal be rejected. Respondent Circuit Judge David Bogard, by the Attorney General’s office, requests Mr. Valley’s claims for relief be rejected, and, more particularly, submits that Mr. Valley’s request for a writ of certiorari be denied because his remedy is one of appeal. The Secretary of State and the State Board of Election Commissioners have filed a response on May 10, 2000, essentially taking no position with regard to Mr. Valley’s eligibility as a candidate for the office of State Representative, District 99.
Finally, Respondent Arnell Willis filed his response on May 10, 2000, requesting Mr. Valley’s requests for relief be denied. Additionally, he joins other respondents in stating that the appeal record in this matter is grossly incomplete, because no transcript and exhibits have been filed or properly requested.
On May 11, 2000, our court issued a writ of certiorari to the court reporter in an attempt to expedite rendering a decision before the May 23, 2000 primary election, even though Mr. Valley’s notice of appeal failed to confirm that he ordered the transcript and made financial arrangements required by the court reporter pursuant to Ark. Code Ann. § 16-13-510(c) (Repl. 1999). See Ark. R. App. P. — Civil 3(e) (2000). Instead, as noted above, Mr. Valley asserted in his notice of appeal that he attempted, but failed, to make the required arrangements for the record. Court reporter, Ms. Ellen Kuciejski has submitted her affidavit on this date, May 12, 2000, averring that Mr. Valley, to date, has not made arrangements for the record in this appeal.
Under Ark. R. App. P. — Civ. 3(e) (2000), it is required that the notice of appeal provide that financial arrangements had been made with the court reporter. While Mr. Valley’s appeal is not rendered void, Mr. Valley’s failure to comply with Ark. R. App. P. — 3(e) makes it impossible for this court to expedite this matter in order to decide it before the May 23 primary election. See Wilson v. Cook, 318 Ark. 520, 886 S.W.2d 593 (1994) (requests for accelerated proceedings and application for temporary relief were denied because the transcript could not be filed in time to decide the case before the scheduled election). In the instant case, Mr. Valley has failed to show he has made proper arrangements for the record, and we are unable to determine when a full record can be provided so this court can establish a briefing schedule. For these reasons, we deny Mr. Valley’s requests to a stay and to accelerate this appeal. This court’s May 11, 2000, writ of certiorari was improvidently issued and is withdrawn. | [
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DONALD L. Corbin, Justice.
This is an interlocutory appeal brought by tice. pursuant to Ark. R. Crim. P. 3(a)(1). For reversal, the State argues that the trial court’s order was clearly against the preponderance of the evidence because there was probable cause to support the traffic stop "of Appellee Terry Lynn Guthrie. As it is required to do pursuant to Rule 3(c), the Attorney General maintains that the correct and uniform administration of the criminal law requires our review of the trial court’s suppression order. We disagree.
The record reflects that on February 21, 1999, at approximately 3:16 a.m., Gentry Police Officer David Bates witnessed Guthrie pulling out of the driveway at Jackie’s Beauty Shop onto Highway 12. Officer Bates continued down Highway 12 until he reached the Gentry city limits and then turned around. He initially indicated that there was no reason for him to be suspicious when he first noticed Guthrie attempting to pull out of the driveway. Upon redirect, however, Officer Bates testified that he suspected Guthrie may have been an impaired driver because of the way he attempted to pull out of the driveway at the beauty shop.
After Officer Bates turned around, he came into contact with Guthrie a second time. He stated that while following Guthrie along the highway, he noticed Guthrie cross the center fine. Officer Bates initially stated that Guthrie was approximately one foot over the center line. Upon examination by the court, however, the officer admitted that he was unsure of exactly how far Guthrie had traveled over the center line. He also admitted that such information was not recorded in his incident report.
Officer Bates also testified that Guthrie was traveling approximately seventeen or eighteen miles per hour in a thirty-five mile per hour speed zone. He decided to pull Guthrie over after witnessing at least one of the vehicle’s driver’s side tires leave the pavement when the driver made a right turn. Officer Bates testified that he turned on his lights after Guthrie made the right-hand turn onto Little Street. Officer Bates stated that he did not know who he was pulling over, but later admitted that once Guthrie got out of his vehicle, he recognized him and knew him to be a convicted felon. Officer Bates testified that Guthrie immediately got out of his vehicle and began acting nervous. Officer Bates called for backup and Officer Joe Savage was dispatched to the scene of the stop.
Officer Bates asked Guthrie if he had any weapons in his vehicle, and Guthrie admitted to having a gun in his truck. While Officer Savage retrieved the gun, Officer Bates placed Guthrie under arrest. Officer Bates then conducted a pat-down search of Guthrie and discovered a black bag containing methamphetamine and empty baggies. Thereafter, Officer Savage, who is a trained canine handler, walked his canine around the exterior of Guthrie’s vehicle. The canine alerted on the outside passenger door. Officer Savage discovered a briefcase in the backseat of the vehicle that contained additional methamphetamine, twenty-one grams of marijuana, drug paraphernalia, and $3,322.52 in cash. The police also discovered an organizer and a spiral notebook containing names with dollar amounts beside them.
Guthrie’s testimony contradicted Officer Bates’s account of the stop and search. Guthrie claimed that the officer did not turn his lights on or approach him until after he had already turned into his driveway, exited his vehicle, and begun to open his gate. Guthrie testified that Officer Bates told him that he had gone left of center and seemed to be driving slow. Guthrie told the officer that he had been driving slow because he thought he had a flat tire. Officer Bates asked Guthrie for his vehicle registration, and Guthrie began to look in the truck for it. According to Guthrie, Officer Bates asked him to get out of the vehicle and then the officer began puffing Guthrie toward his squad car. Guthrie also claimed that the officer began going through his pockets at this time. Guthrie denied ever giving the police permission to retrieve the gun from his vehicle or to search the vehicle
Guthrie’s stepdaughter Miranda McCarver testified that she was watching television when she saw headlights through a window. Believing it to be her stepfather, Miranda stated that she looked out the window and saw Guthrie start to open the gate, at which time a police car pulled up. According to Miranda’s testimony, the police car’s lights were not on when the car first pulled up. Miranda also testified that she saw the officer pull at her stepfather and search his pockets.
Guthrie was charged with two counts of possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and felon in possession of a firearm. Guthrie filed a pretrial motion seeking to suppress the contraband seized from his vehicle. After conducting the foregoing suppression hearing, the trial court determined that there were not reasonable grounds to support the stop of Guthrie and thus granted Guthrie’s motion to suppress. Further proceedings in this matter have been stayed, pending the outcome of this appeal.
As an initial issue, this court must determine whether the State has properly brought this interlocutory appeal under Ark. R. App. P. — Crim. 3. See State v. Donahue, 334 Ark. 429, 978 S.W.2d 748 (1998). There is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. The former is a matter of right, whereas the latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Rule 3. See Bowden v. State, 326 Ark. 266, 931 S.W.2d 104 (1996).
This court recently outlined the limited instances in which the State may bring such appeals:
We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals “which are narrow in scope and involve the interpretation of law.” State v. Banks, 322 Ark. 344, 345, 909 S.W.2d 634, 635 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994). Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916).
State v. Stephenson, 330 Ark. 594, 595, 955 S.W.2d 518, 519 (1997). Thus, where the resolution of the issue on appeal turns on the facts unique to that case, it cannot be said that the appeal is one requiring interpretation of our criminal rules with widespread ramifications. See State v. Gray, 330 Ark. 364, 955 S.W.2d 502, supplemental opinion on denial of reh’g, 330 Ark. 368-A, 958 S.W.2d 302 (1997); State v. Harris, 315 Ark. 595, 868 S.W. 2d 488 (1994). An appeal that raises the issue of application, not interpretation, of a statutory provision does not involve the correct and uniform administration of the criminal law. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995). Furthermore, this court will not accept an appeal by the State where the trial court has acted within its discretion after making an evidentiary decision based on the particular facts of the case or even a mixed question of law and fact. Id.
Here, the State does not assert that the trial court incorrectly interpreted the law or that the outcome of this appeal will set important precedent. In the conclusion of its brief, the State argues that the court’s ruling was clearly erroneous because the court misapplied a rule of criminal procedure and constitutional law. In other words, the State is arguing that based on the facts and circumstances of this case, the trial court did not correctly apply the law. Such an argument is not a basis for an appeal by the State under Rule 3(c).
The dissent suggests that this court should consider the merits of the State’s appeal based solely on the “striking similarities” between the present matter and State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526, supplemental opinion on denial of reh’g, 340 Ark. 318-A (2000). The only similarity between the two cases, however, is the fact that both were interlocutory appeals brought by the State challenging the trial courts’ orders suppressing evidence. The similarities end there. Sullivan involved a review of the trial court’s ruling regarding the legality of both a stop and a search. In deciding to suppress the evidence, the trial court made a specific finding that the stop was valid but that the subsequent arrest and vehicle search were not. Sullivan involved a specific Fourth Amendment issue, namely pretextual arrest, and our review of that case was necessary to ensure the correct and uniform administration of the criminal law. Indeed, the trial court concluded that the officer’s decision to physically arrest Sullivan, rather than issue traffic citations, was based on the officer’s recognition of Sullivan as someone involved in narcotics.
Here, the trial court simply found that there were no reasonable grounds to support the stop of Guthrie. The trial court made absolutely no findings regarding the arrest and search of Guthrie’s vehicle. Nothing in the trial court’s ruling implicated any specific Fourth Amendment issues; rather its ruling amounts to nothing more than a run-of-the-mill probable-cause determination. Resolution of the issue in this appeal does not require our interpretation of the criminal rules. See Gray, 330 Ark. 364, 955 S.W.2d 502. Instead, the State is asking us to assume the role of factfinder and reevaluate the trial court’s decision on an evidentiary matter. This we will not do.
In upholding the trial court’s suppression order in Stephenson, 330 Ark. 594, 955 S.W.2d 518, this court stated that it would not engage in a search for error where any determination it made would not set precedent or serve as a guide in future prosecutions. Likewise, we decline to engage in a search for error in the present case. Ultimately, the trial court based its determination to suppress the evidence on the facts and circumstances surrounding this stop. This was a fact-intensive matter for the court to resolve after receiving the evidence and weighing the credibility of the witnesses. The trial court made no broad ruling that would impact future cases or have widespread ramifications on the law surrounding probable cause to make a vehicle stop. Therefore, our review of the suppression order is not required because the correct and uniform administration of the criminal law is not at issue. Accordingly, the State’s appeal is dismissed.
Glaze, Imber, and Smith, JJ., dissent. | [
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LAVENSKI R. Smith, Justice.
Appellant Martha S. Davis petistice. review a court of appeals decision affirming a Randolf County child-support order. The chancellor ordered Davis to pay $70.00 per month in child support to her ex-husband for their two children. Davis’s sole source of income is a monthly Supplemental Security Income (“SSI”) check from the federal government in the amount of $494. Davis argues that federal law both expressly and impliedly preempts any Arkansas law that might impose a child-support obligation on her SSI benefits. We reverse.
Facts
Davis and her ex-husband Randy Davis (“Randy”) were married on January 31, 1981. The Davises had two children during the course of their marriage. In March 1988, Randy sued for divorce in Randolph County Chancery Court. Davis answered and counterclaimed for divorce. The couple ultimately reached a property-settlement agreement in the matter. In the property settlement, the parties agreed that Randy would have custody of the two children. They also agreed that Davis would not pay child support because she was unemployed. The chancery court entered the divorce decree on April 10, 1989.
Nine years later, on April 17, 1998, the Office of Child Support Enforcement (“OCSE”) intervened in the matter. In the interim Randy assigned his rights to OCSE to pursue child support from Davis. In its petition to set child support, OCSE requested that Davis pay current and past support, secure and maintain health insurance for the children, and be responsible for one-half of the medical costs not paid by insurance. Davis answered the petition on May 8, 1998, and alleged that she was disabled due to paranoid schizophrenia and only identified her sole income source as $494 per month in SSI benefits.
Chancellor Tom Hilburn held a brief hearing on June 16, 1998. Counsel for the OCSE questioned Davis about the use of her monthly SSI check. Davis testified that $400 of her monthly check is paid to her sister, with whom she lives, for rent, groceries, and cigarettes, while the remaining $94 is used for medication for her mental illness. No other witnesses were called nor other evidence submitted.
At the hearing’s conclusion, Davis’s attorney sought and received permission to brief the issue of SSI’s availability for child-support awards. In her brief, Davis noted the federal government’s purposes in creating the SSI program. She pointed out that Congress intended SSI to provide a minimum level of subsistence income to recipients. Davis also argued that federal law prohibits the garnishment, levy, execution on, or other legal process against benefits. Davis noted that Arkansas does not specifically require such a taking of SSI benefits, and that most other states prohibit the use of SSI benefits in child-support cases. OCSE responded by arguing that this Court, in a per curiam dated September 25, 1997, ordered that child-support payments could come out of “any form of payment” to an individual. OCSE argued that because SSI is “income” due Davis, it qualifies as a “form of payment” and should be subject to child-support withholding. OCSE argued that Davis uses her money for food, shelter, and luxuries such as cigarettes, but has failed to support her children. OCSE further argued that it is not trying to “execute, levy, attach, or garnish” Davis’s SSI, noting that 42 U.S.C. §§ 407(a) and 1383(d)(1) do not allow income withholding on SSI benefits, but that it is merely trying to set support payments from the “income” Davis receives.
The chancellor filed his order on August 4, 1998, requiring Davis to pay $70 per month in support, specifically noting that Davis smokes perhaps one pack of cigarettes a day. The court found that $70 was reasonable, and that $36 per year should be paid in administrative fees. The court further found that Davis should pay $35.75 in filing fees. Davis filed her notice of appeal on August 28, 1998.
On November 17, 1999, the court of appeals affirmed the chancellor’s Order of Support. Specifically, the court of appeals determined that income is “any form of payment, periodic or otherwise, due to an individual, regardless of source” citing this court’s per curiam order, which is now Arkansas Supreme Court Administrative Order Number 10. The court of appeals thus reasoned that SSI is income subject to child-support payments. The opinion compared SSI to veteran’s disability benefits, see Belue v. Belue, 38 Ark. App. 81, 828 S.W.2d 855 (1992), and social security disability benefits, see Kimbrell v. Kimbrell, 47 Ark. App. 56, 884 S.W.2d 268 (1994), which are subject to child-support awards. The appellate court thus struck a delicate balance between a child’s need for support and a parent’s need for a subsistence level of income in the child’s favor. Additionally, the court of appeals determined that federal law does not preempt state law in domestic-relations matters including child support taken from federal SSI benefits. Davis petitioned this court for review of this case, and the parties filed supplemental briefs for our consideration.
Standard of Review
Upon a petition for review, we consider the case as though it were originally filed in this court. Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999); Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999); ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998); Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). We have held many times that although we review chancery cases de novo on the record, we will not reverse a finding of fact by the chancellor unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). Further, in reviewing a chancery court’s findings, 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. Holaday v Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996); Riddick v. Street, 313 Ark. 706, 858 S.W.2d 62 (1993); see also, Anderson v. Holliday, 65 Ark. App. 165, 956 S.W.2d 173 (1999); Jennings v. Buford, 60 Ark. App. 27, 958 S.W.2d 12 (1997).
Federal Preemption
In her petition for review, Davis argues that federal law expressly and impliedly preempts any Arkansas law which might impose a child-support obligation on Davis’s SSI benefits. Davis further argues that allowing a chancellor discretion over SSI benefits in child-support proceedings undermines the federal law, and the chancellor’s decision undercuts needed national uniformity in the law of child-support obligations. OCSE, in turn, argues that federal law does not preempt state law on this issue, and that Congress’s intent on this issue is ambiguous and unclear. Furthermore, OCSE again makes a distinction between allowing SSI benefits to be “garnished” and ordering that the parent pay child support out of those benefits without actual “garnishment,” reasoning that federal law does not prohibit such orders. Upon review, we hold that federal law does prohibit state court ordered child-support payments exclusively from SSI benefits.
As a rule, the federal government leaves domestic relations matters within the exclusive province of the states. See Rose u Rose, 481 U.S. 619 (1987). However, the Supreme Court in Rose acknowledged that in some“rare” occasions preemption does apply. Specifically, preemption is justified when Congress has “positively required by direct enactment” that state law be preempted. Rose, 481 U.S. at 625 (citing Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979)). The Rose court noted that “before a state law governing domestic relations will be overridden, it “must do ‘major damage’ to ‘clear and substantial’ federal interests.” Rose, 481 U.S. at 625 (citing Hisquierdo, 439 U.S. at 581, quoting United States v. Yazell, 382 U.S. 341, 352 (1966)).
Although there is no direct enactment exclusive to SSI exempting it from state child-support orders, there is specific, clear federal law limiting state court authority generally with respect to SSI and Social Security Disability (“SSD”) payments. Congress expressly protected Social Security benefits from legal process in 42 U.S.C. § 407 and § 1383(d)(1). Section 407 states,
§ 407. Assignment; amendment of section
(a) The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
(b) No other provision of law, enacted before, on, or after April 20, 1983, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.
(c) Nothing in this section shall be construed to prohibit withholding taxes from any benefit under this subchapter, if such withholding is done pursuant to a request made in accordance with section 3402(p)(l) of the Internal Revenue Code of 1986 [§26 U.S.C.A. 3402] by the person entitled to such benefit or such person’s representative payee.
This section protects SSI and SSD benefits against transfer or assignment in law or equity and states that they are not subject to “execution, levy, attachment, garnishment, or other legal process.” (Emphasis added.). This would include state child-support withholding orders as the OCSE concedes. However, since the enactment of § 407, Congress has carved out a limited exception for child-support purposes in 2 U.S.C. § 659. There, Congress consented to income withholding, garnishment, and similar proceedings for enforcement of child-support and alimony obligations from federal moneys payable based on “remuneration from employment.” That statute states:
§ 659. Consent by the United States to income withholding, garnishment, and similar proceedings for enforcement of child support and alimony obligations
(a) Consent to support enforcement
Notwithstanding any other provision of law (including section 407 of this title and section 5301 of Title 38), effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the Armed Forces of the United States, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to withholding in accordance with State law enacted pursuant to subsections (a)(1) and (b) of section 666 of this title and regulations of the Secretary under such subsections, and to any other legal process brought, by a State agency administering a program under a State plan approved under this part or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony. (Emphasis added.)
Notably, the exception created by 2 U.S.C. § 659 applies only to moneys “the entitlement to which is based upon remuneration for employment.” This exception could not apply to federal SSI benefits. SSI benefits are not remuneration for any past or present employment. No premiums, deposits, or other payments have been paid to qualify for them. Put simply, SSI is federal welfare for the poorest of the nation’s citizens.
The Supreme Court explained the purpose of SSI benefits in Schweiker v. Wilson, 450 U.S. 221 (1981). There, the court stated:
In October 1972, Congress amended the Social Security Act (Act) to create the federal Supplemental Security Income (SSI) program, effective January 1, 1974. 86 Stat. 1465, 42 U.S.C. § 1381 et seq. This program was intended “[t]o assist those who cannot work because of age, blindness, or disability,” S. Rep. No. 92-1230, p. 4 (1972), by “setfting] a Federal guaranteed minimum income level for aged, blind, and disabled persons,” id., at 12.
The SSI program provides a subsistence allowance, under federal standards, to the Nation’s needy aged, blind, and disabled. Included within the category of “disabled” under the program are all those “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” § 1614 (a) (3) (A) of the Act, 42 U.S.C. § 1382c(a)(3)(A).
SSI, like SSD, requires that an applicant file for benefits and prove that he or she is disabled from performing any “substantial gainful activity” or sustained work for pay. However, SSI and SSD differ substantially. Under SSD, the applicant seeks “insurance” benefits based upon payments withheld from his paychecks. To qualify, the applicant must have paid into the program at least five out of the prior ten years, or twenty out of forty quarters. SSI recipients, however, either never paid this “premium” or never paid enough into the system to qualify for SSD. In other words, the benefits an SSI recipient receives are not based on how much he paid into the system, but instead how much he or she needs to maintain “a Federal guaranteed minimum income level for aged, blind, and disabled persons.” Schweiker, supra. Currently, for Davis, that amount is set at $494.00 monthly.
Although distinct, SSD and SSI can interrelate. This interplay illustrates the Congressional intent underlying SSI. For instance, if a disabled worker draws $300 per month in SSD based on their employment history, their monthly income is $194 below the Federal guaranteed minimum income level for aged, blind and disabled persons. Based upon the amount that the person paid into the Social Security system during the years they worked, he or she may also be entitled to an additional $194 to raise him or her to the “Federal guaranteed minimum income level” for a disabled person. Maintenance of this minimum income level is thus the fundamental purpose of SSI. As stated in the federal regulations governing SSI,
The basic purpose underlying the supplemental security income program is to assure a minimum level of income for people who are age 65 or over, or who are blind or disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level. The supplemental security income program replaces the financial assistance programs for the aged, blind, and disabled in the 50 States and the District of Columbia for which grants were made under the Social Security Act. Payments are financed from the general funds of the United States Treasury. 20 C.F.R.. § 416.110.
Given its purposes, we find that subjecting SSI payments to state court child-support orders would do “major damage” to a clear and substantial federal interest.” Therefore, we hold that the sovereign immunity exception created by § 659 does not apply to SSI benefits. See, e.g., Tennessee Department of Human Services, ex rel. Young v. Young, 802 S.W.2d 594 (Tenn. 1990).
In Administrative Order of the Court Number 10, we defined “income” as:
Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, worker’s compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for:
1. Federal and state income tax;
2. Withholding for Social Security (FICA), Medicare, and railroad retirement;
3. Medical insurance paid for dependant children, and
4. Presently paid support for other dependents by Court order.
This definition is intentionally broad and designed to encompass the widest range of potential income sources for the support of minor children. The trial court and appellate court interpreted “income” under Order 10 to include SSI payments from the federal government.
We hold, however, that although SSI comes within the definition of income for child-support purposes, it is not subject to state court jurisdiction. Congress has made no sovereign immunity exception for non-remunerative federal benefits such as SSI. Hence, those benefits remain free from “execution, levy, attachment, garnishment, or other legal process.” We thus join the majority of the states that have addressed this issue and hold that Arkansas courts cannot order child-support payments based upon income from federal SSI disability benefits.
Reversed and remanded.
Arnold, C.J., dissenting.
We note that the responsibility of a parent to provide for the support of their minor children is as the supreme court has stated, “a moral imperative. ” Certainly, parents can do by choice what the law cannot command. In the case of disabled parents living exclusively on subsistence income, with rare exception, there is little choice.
Thirty-eight states exempt SSI benefits from inclusion in a calculation of gross income for child support purposes. Those states are: California, Georgia, Iowa, Nebraska, New Mexico, Wisconsin, Rhode Island, Alabama, Alaska, Arizona, Colorado, Connecticut, Delaware, Hawaii, Indiana, Kansas, Louisiana, Maine, Maryland, Michigan, Missouri, Montana, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, Wyoming. | [
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Conley Byrd, Justice.
The appellant Robert Clark was convicted on two counts of delivering a controlled substance (marijuana). For reversal he contends among other things that the trial court erred in not directing a verdict in his favor and in the manner of selecting the jury.
We find the evidence sufficient to sustain the conviction. Appellant’s defense was entrapment, and a fact question was raised as to whether he did what he was already willing and ready to do or whether the criminal design originated with the undercover officer.
The trial court had available for purposes of this trial a panel of 27 petit jurors. Prior to the trial the trial court had required all of the petit jurors to fill out a written questionnaire which contained such information as the juror’s name and address, his spouse’s name, the occupation of both the juror and his spouse and whether the juror had been a complaining witness in a criminal proceeding. The questionnaires were filled out under oath and were available to the lawyers in attendance upon the court at least one full work day before the trial. During the voir dire, the trial court would not permit appellant’s counsel to go over these same questions with the jurors. However, the trial court did permit and expect appellant’s counsel to ask other questions of each petit juror during the voir dire. From the panel of 27 petit jurors the trial court caused 12 jurors to be drawn and seated. Each juror was then examined by the State and then by the appellant. However, under the procedure used by the trial court all twelve jurors had to be examined before any peremptory challenges were permitted, and following the examination of the 12 jurors, the State then had to exercise its peremptory challenges and then appellant was required to make his challenges. After a juror was once accepted, the trial court would not permit a peremptory challenge to be exercised against such juror. After some of the original 12 jurors called had been stricken by peremptory challenges, the trial court would cause additional jurors to be called to make a total of 12. This procedure was continued until 12 jurors had been selected. Appellant attacks the jury selection as hereinafter set out.
First: Appellant contends that he was denied a full drawn panel of 24 jurors. We find no merit in this contention. The statute, Ark. Stat. Ann. § 39-216 (Repl. 1962), upon which appellant relies as requiring a panel of 24 jurors has been repealed by Acts of 1969, No. 568. The number of jurors to be selected for the panel is left to the discretion of the Circuit Judge. See, Ark. Stat. Ann. § 39-209 (Supp. 1973).
Second: We find no merit to appellant’s contention that the trial court erred in not permitting him to ask again the simple questions that had been answered on the jury questionnaire. Ark. Stat. Ann. § 39-226 (Repl. 1962), provides:
“In all cases, both civil and criminal, the court shall examine all prospective jurors under oath upon all matters set forth in the statutes as disqualifications. Further questions may be asked by the court, or by the attorneys in the case, in the discretion of the court.”
We note that the record shows that appellant’s counsel was permitted to examine each juror extensively enough to make any challenges for cause or peremptorily and also to sufficiently familiarize himself with any communication problems that a juror might have.
Third: Appellant contends that the trial court erred in not requiring the State to first accept or reject each juror as he was examined. The statute involved, Ark. Stat. Ann. § 43-1903 (Repl. 1964), being Criminal Code § 193, provides:
“In a prosecution for felony, the clerk, under the direction of the court, shall draw from the jury box the names of twelve [12] petit jurors, who shall be sworn to make true and perfect answers to such questions as may be asked them touching their qualifications as jurors in the case on trial, and each juror may be examined by the State and cross-examined by the defendant, touching his qualification. If the court decide he is competent, the State may challenge him peremptorily or accept him, then the defendant may peremptorily challenge or accept him. If not so challenged by either party, he shall stand as a juror in the case, and each of the twelve [12] jurors shall be examined and disposed of in like manner. If any of said jurors are disqualified or challenged, the clerk shall draw from the box as many more as may be required, and as often as may be required, until the jury shall be obtained, or the whole panel exhausted.”
It can be seen from this statutory scheme that the State is first required to accept or reject an individual juror before the defendant is required to accept or reject an individual juror. A number of cases beginning with Lackey v. State, 67 Ark. 416, 55 S.W. 213 (1900), have consistently given this construction to the statute, supra. The State to sustain this conviction does not contend that the procedure used is authorized by statute but argues that appellant has not demonstrated any prejudice. Of course, the rule is that prejudice is presumed from an error unless the contrary affirmatively appears, Crosby v. State, 154 Ark. 20, 241 S.W. 380 (1922). Furthermore, since the State here exercised 4 of its 6 and the appellant 5 of his 8 peremptory challenges on the first 12 jurors drawn from the panel, it at once becomes obvious that it was an advantage to the State to be able to examine all of the next 9 jurors before exercising its last two challenges — i.e., it could peremptorily challenge the least desirable of the nine jurors instead of rejecting them one at a time. Consequently, we must hold that the trial court erred in requiring the appellant to examine all of the jurors drawn from the panel each time before the State was required to either accept or reject a juror.
Fourth: We find no merit in appellant’s contention that the trial court should have permitted him to peremptorily challenge a juror already seated in the box. See Jeffries v. State, 255 Ark. 501, 501 S.W. 2d 600 (1973).
Appellant makes a number of other arguments which we do not reach as they are not likely to arise on a new trial.
Reversed and remanded for new trial. | [
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Conley Byrd, Justice.
This litigation arises out of the covenant assessments contained in the bill of assurance of a planned community development for the maintenance and operation of specified common properties developed for the use and benefit of all property owners in the platted area. The litigants are the appellants, George C. Kell, Jr. and Sharon A. Kell, his wife, property owners, and the appellee, Bella Vista Village Property Owners Association, a non profit corporation organized to act as trustee for the property owners. The matter was submitted to the trial court upon the pleadings and the testimony of John A. Cooper, Jr. and James A. Hatcher. The trial court held the assessments valid and secured by a continuing lien upon the land. Based upon that holding the trial court entered a judgment foreclosing the delinquent and unpaid assessments in favor of appellee. For reversal, the appellants raise the issues hereinafter discussed.
POINT 1. Appellants here contend that since the property constituted their homestead under Article 9, § 3 of the Constitution of Arkansas, their property is not subject to the lien of the assessments. The particular section of the declaration in the bill of assurance, which is challenged, provides:
“... The annual and special assessments, together with such interest thereon and costs of collection thereof as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made.”
The foregoing language is equally as strong and specific as a mortgage provision extending the lien thereof to future advances, and we can see no reason why the language employed should not be considered as creating a continuing lien on the property for future assessments.
POINT 2. The appellants here argue that they are not bound to pay the annual assessments because the covenant does not run with the land. We find no merit in this contention. See Neponsit Property Owners’ Ass’n v. Emigrant Industrial Sav. Bank, 278 N.Y. 248, 15 N.E. 2d 793, 118 ALR 973 (1938). Furthermore, the proof here shows that the common properties to be maintained add a value to each lot or living unit subject to the covenants.
POINT 3. Even though the record shows that the lien created by the bill of assurance was recorded, the appellants argue that they are not bound by the lien created thereby because they were not orally advised that such a lien existed. We find no merit to this contention. See Ark. Stat. Ann. § 16-114 (Repl. 1968), which makes the recording of such instruments constructive notice to all persons.
POINT 4. Appellants contend that the covenant constitutes a perpetuity contrary to Article 2, § 19 of the Constitution of Arkansas. The bill of assurance provides that the assessment covenant will remain outstanding for a term of 26 years and for successive ten year periods thereafter, until an instrument is signed and recorded by the then owners of two thirds of ¿he lots or living units. We find no merit to this contention. See Lowry v. Norris Lake Shores Development Corporation, 231 Ga. 549, 203 S.E. 2d 171 (1974). There is nothing here which keeps the property from vesting.
POINT 5. Under Article III, Section 2 of the declaration in the bill of assurance, the developer is classified as the only Class “B” member of the property owners association, and as such, it is entitled to ten votes for each lot or living unit of which it is the record owner. However, insofar as any action to increase the annual assessments is concerned, the Class “B” member only has a veto over such assessments, and its votes are not counted against the Class “A” members, such as appellants. Such class distinctions are ordinarily up held among corporate shareholders, and in the absence of authority to the contrary, we can see no reason why such a veto power over increased assessments should be prohibited in matters involving private contract rights.
POINT 6. The allegation that the assessments amount to an unlawful delegation to tax in violation of Article 2, § 23 of the Constitution of Arkansas overlooks the fact that the assessments here arise out of contract and that they constitute a benefit to the property owner. Other courts recognize that such assessments are not an unlawful delegation of the State’s taxing power, Henlopen Acres v. Potter, 36 Del. Ch. 141, 127 A. 2d 476 (1956).
POINT 7. Appellants contend that the purposes for which the assessments are made are so vague and indefinite that they amount to a restraint on alienation. The “Covenant for Maintenance Assessments” insofaras here applicable provides:
“ARTICLE X
Covenant For Maintenance Assessments
Section 1. Creation of Lien. The Developer for each Lot and Living Unit owned by it within The Properties hereby covenants and each Owner of any Lot or Living Unit by acceptance of a deed therefor, or by entering into a contract of purchase with the Developer, whether or not it shall be so expressed in any such deed, contract of purchase, or other conveyance, shall be deemed to covenant and agree to pay to the Club: (1) annual assessments of charges; (2) special assessments for capital improvements, such assessments to be fixed, established and collected from time to time as hereinafter provided. The annual and special assessments, together with such interest thereon and costs of collection thereof as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made.
Section 2. Purpose of Assessments. The assessments levied hereunder by the Club shall be used exclusively for the purpose of promoting the recreation, health, safety, and welfare of the residents in The Properties and in particular for the improvement and maintenance of properties, services and facilities devoted to this purpose and related to the use and enjoyment of the Common Properties and the improvements situated upon The Properties, including, but not limited to, the payment of taxes and insurance thereon, and repair, replacement, and additions thereto, and for the cost of labor, equipment, materials, management and supervision thereof. The limitation aforesaid shall not preclude the use of assessments levied hereunder for maintenance of roads and streets within The Properties, even though same have been dedicated to the public.
Section 3. Basis and Maximum of Annual Assessments. Until the year beginning January, 1970, the annual assessment shall be $60.00 per Lot or Living Unit. From and after January 1, 1970, the annual assessment may be increased by vote of the members, as hereinafter provided, for the next succeeding three years and at the end of each such period of three years for each succeeding period of three years. Unless the annual assessment shall be increased as aforesaid, it shall remain at $60.00 per Lot of Living Unit.
The Board of Directors of the Club may, after consideration of current maintenance costs and future needs of the Club, fix the actual assessment for any year at a lesser amount. Likewise, the Board of Directors of the Club may, after consideration of the lack of improvements as to lots in a certain area, fix the actual assessment for any year as to these particular lots at a lesser amount.
Section 4. Special Assessments for Capital Improvements. In addition to the annual assessments authorized by Section 3 hereof the Club may levy in any assessment year a special assessment, applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction, unexpected repair or replacement of the roads and streets within The Properties, even though same may have been dedicated to the public, and also a described capital improvement upon the Common Properties, including the necessary fixtures and personal property related thereto, provided that any such assessment shall have the assent of 51% of the votes of each class of members who are voting in person or by proxy at a meeting duly called for this purpose, written notice of which shall be sent to all Members at least 30 days in advance and shall set forth the purpose of the meeting. The Board of Directors of the Club may, after consideration of lack of improvements as to lots in a certain area, fix the assessment for any year as to these particular lots at a lesser amount.
Section 5. Change in Basis of Maximum of Annual Assessments. Subject to the limitations of Section 3 hereof, and, for the purpose therein specified, the Club may change the maximum and basis of the assessments fixed by Section 3 hereof prospectively for any such period provided that any such change shall have the assent of 51% of the votes of each Class of Members who are voting in person or by proxy, at a meeting duly called for this purpose, written notice of which shall be sent to all Members at least 30 days in advance and shall set forth the purpose of the meeting.”
As we read the foregoing provisions, the annual assessments are levied for the purposes of improvement and maintenance of the properties held for the joint use of the properties which include “the payment of taxes and insurance thereon, and repair, replacement, and additions thereto, and for the cost of labor, equipment, materials, management and supervision thereof.” Of course, for these purposes the appellee acts as a trustee for the use and benefit of ?he property owners. In such capacity it has some discretion as to expenditures, but under those circumstances, a property owner would have recourse in a court of equity to prevent any arbitrary or capricious action on the part of appellee. By virtue of this recourse in equity for relief, the covenants contain a formula from which assessments can be determined, and for these purposes, the assessments are not vague and indefinite and do not constitute a restraint on alienation.
The courts that have considered such assessments have upheld them where the purpose of the assessments has been stated so that a formula for the calculation of the amount thereof can be determined. See Rodruck v. Sand Point Maintenance Commission, 48 Wash. 2d 565, 295 P. 2d 714 (1956). Likewise, such assessments have been struck down as a restraint upon alienation where the covenants do not contain a formula for the calculation of the amount of the assessment. See Peterson v. Beekmere, Incorporated, 117 N.J. Super. 155, 283 A. 2d 911 (1971), and the cases from other jurisdictions cited therein. The courts that have considered the matter of assessment covenants have also refused to enforce such covenants when they do not apply alike to all units in the same subdivision enjoying the benefits to the common properties, Peterson v. Beekmere, Incorporated, supra. The reason is that the property bound by such covenants would be forced to tender larger proportionate amounts through assessments although such non-contributing neighbors would enjoy the same benefits.
When we consider the foregoing authorities, the term “a described capital improvement” in Article X, § 4 requires some discussion. If it is construed to mean the erection of any future improvement that the majority desire (such as an astrodome), then it clearly would amount to a restraint on alienation and would be void. However, the term “a described capital improvement” can be construed to mean those improvements described by the covenants and necessarily contemplated in the use or enjoyment thereof, such as an additional water tower to supply sufficient water pressure for domestic use and fire protection for some or all of the property owners. Applying the latter usage, the term “a described capital improvement” would furnish a sufficient formula for the calculation of the amount of the special assessment and would not constitute a restraint on alienation. Since, in the interpretation of contracts, we are to give a written contract, susceptible to more than one interpretation, a construction that will make it valid, it follows that when the term “a described capital improvement” is given the latter interpretation, we must uphold this Article X, § 4 provision as being valid and binding.
The provisions in Sections 3 and 4 of Article X, supra, providing that appellee may, after consideration of the lack of improvements as to lots in a certain area, fix the actual assessment for any year as to these particular lots at a lesser amount” appears to be invalid since the owners thereof have the same privilege of using the common facilities as do any of the residents of improved lots.
The foregoing invalid provisions can easily be separated from the valid provisions. Since the bill of assurance contains a severability clause and since the assessments here are not affected by the invalid provisions, we find that it does not impair or otherwise invalidate the annual assessments for maintenance and repair.
POINT 8. The contention of appellants that the property owners’ association has no standing to enforce the covenant to pay annual assessments is without merit. See Neponsit Property Owners' Ass’n v. Emigrant Industrial Sav. Bank, supra.
Affirmed as modified.
Roy, J., not participating. | [
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George Rose Smith, Justice.
The petitioner, as prosecuting attorney of the Fifth Judicial District, seeks a writ of prohibition to terminate proceedings by a special grand jury in Faulkner County, impaneled by direction of the respondent as circuit judge of the district. The petitioner alleges that the order impaneling the special grand jury exceeds the authority of the circuit court and is therefore void. Three questions are raised by the pleadings in this court and discussed in the parties’ briefs.
First, does the petitioner, as prosecuting attorney, have standing to question the method by which the grand jury was selected? We have no doubt that he has. It is his statutory duty to “commence and prosecute” civil and criminal actions in which the State or any county in his circuit may be concerned. Ark. Stat. Ann. § 24-101 (Repl. 1962). If the grand jury proceedings are void it is clearly appropriate for the prosecuting attorney to commence and prosecute an action to avoid the waste of the taxpayers’ money necessarily involved in the futile trial of criminal cases that might be tainted with reversible error from the very outset.
Second, is the writ of prohibition the proper remedy? We have no doubt that it is. A basic purpose of the writ is to prevent a court from exercising a power not authorized by law, when there is no other adequate remedy. State ex rel. Purcell v. Nelson, 246 Ark. 210, 438 S.W. 2d 33 (1969). If the circuit court in this instance is exercising its authority in a manner contrary to law, prohibition is the only remedy to provide prompt and effective relief in the public interest.
Third, was the circuit judge’s method of impaneling a special grand jury contrary to law? We have no doubt that it was. There is no dispute about the facts. A regular grand jury selected according to law was in session at the May, 1975, term of the Faulkner Circuit Court. On July 2 the circuit judge discharged that grand jury. On July 15 the judge ordered the county sheriff to select 25 grand jurors from the county. That is the special grand jury whose legality is at issue.
The respondent’s action is defended on the basis of our holding in a number of cases, especially the Rowland case: Rowland v. State, 213 Ark. 780, 213 S.W. 2d 370 (1948), cert. den. 336 U.S. 918 (1949); Brewer v. State, 137 Ark. 243, 208 S.W. 290 (1918); Wilburn v. State, 21 Ark. 198 (1860); and Straughan v. State, 16 Ark. 37 (1855). In some of those cases we recognized that in certain circumstances the circuit court could cause a grand jury to be selected not according to the statutes but “in the exercise of its inherent constitutional right.” Rowland v. State, supra. Neither the origin nor the extent of that inherent constitutional power is made clear by the decisions. Moreover, the court recognizes that even that inherent authority is subject to legislative control. For instance, in Rowland we cited Wilburn as authority for the existence of the inherent constitutional right, but in Wilburn the court took pains to say: “Whatever practical inconvenience may result from this construction, it must be remembered that the whole subject is within the control of the legislature, and that we have no authority to sanction a departure from what would seem to be an imperative provision of the statute.”
Even though the General Assembly apparently tolerated the courts ’ exercise of the asserted inherent power, the basic decisions were rendered in 1855 and 1860. That was shortly before the adoption of the Fourteenth Amendment and the better part of a century before the Supreme Court began to interpret that Amendment as severely limiting the freedom of the States in the selection and composition of grand juries and petit juries.
However long the legislative silence with regard to jury selection may have continued in Arkansas, it certainly ended in 1969, when Act 568 made the use of the jury wheel mandatory in the selection of grand and petit jurors. Ark. Stat. Ann. §§ 39-101 to -108 and 39-201 to -220 (Supp. 1973). That statute was obviously intended by the General Assembly to put an end to the possible constitutional infirmities in the earlier systems of jury selection. That the jury- wheel method of selection is imperative is made plain by Section 26 of Act 568: “No person shall be summoned to serve as a grand or petit juror who has not been selected under the provisions of this Act, unless this requirement is waived by the parties.” § 39-218. We cannot reasonably interpret the words “No person” to mean 25 persons, as the respondent’s argument would have us do.
We are not overlooking counsel’s reliance upon Ark. Stat. Ann. § 43-934 (Repl. 1964), which provides that when a grand jury is not in session the circuit court in its discretion may, by an order entered of record, impanel a special grand jury. That statute, originally part of the Revised Statutes of 1838, was amended by Initiated Act 3 of 1936. We do not construe it to exempt the courts from all legislative control in the matter of selecting special grand juries. The selection must still be made according to the governing statutes. Consequently the jury-wheel law was effective to fill the gap left by Section 43-934, even though the jury-wheel act did not receive the two-thirds vote that is required to amend an initiated act. There was no amendment, simply an implementation.
It follows from what we have said that the circuit court was without authority to impanel a special grand jury without complying with the safeguards and procedures contained in the 1969 act requiring the use of the jury wheel in the selection of grand juries and petit juries.
The writ of prohibition is granted.
Jones and Byrd, JJ., concur. Fogleman, J., dissents. | [
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LeRoy Autrey, Special Justice.
On August 20, 1973, Sammy A. Weems, the prosecuting attorney for the 17th Judicial District, reported to Circuit Judge W. M. Lee of that District that the investigation of an alleged crime of arson in the burning of the home of Doyle Owen in Prairie County had implicated the prosecuting attorney and requested that the Court convene a grand jury to investigate the matter. This report by Weems was made just before the commencement of a hearing before the Circuit Court at the conclusion of which Weems was disbarred but allowed to continue in the office of prosecuting attorney.
On December 20, 1973, the Court appointed William F. Sherman, a lawyer residing in Pulaski County, as special prosecutor to conduct an investigation of the alleged arson with authorization to issue subpoenas, to appear before grand juries, to prosecute any persons indicted, and to serve with the full powers of a prosecuting attorney in the State of Arkansas. On motion submitted by Special Prosecutor Sherman and over the objection of Prosecuting Attorney Weems, the Circuit Court on March 6, 1974, ordered that Thomas Woolsey be required to give testimony pertaining to the alleged arson of the Owen home on the condition that no testimony or other information compelled under the order could be used against Woolsey in any criminal case pursuant to the provisions of Act 561 of 1973.
A special grand jury was empaneled by Circuit Judge Lee on March 13, 1973, and charged with the investigation of the alleged arson of the Owen home. Special Prosecutor Sherman appeared before the special grand jury and presented evidence including the testimony of Woolsey. The grand jury on March 15, 1974, issued an indictment charging Prosecuting Attorney Weems and Owen with arson and a second indictment charging Weems, Owen and Woolsey with conspiracy.
Weems first objected to the appointment of Sherman as special prosecutor on January 29, 1974, and Circuit Judge Lee on February 11, 1974, overruled the objection, basing the Court’s authority to appoint a special prosecutor under the circumstances of the case presented on three concepts, namely: “(1) by inference under Statute 24-108, (2) by agreement or consent of the elected prosecutor, (3) by inherent authority of his office . . . .”
After the indictments issued by the grand jury, Circuit Judge Lee on his own motion disqualified himself in this matter, and Judge John L. Anderson was assigned by this Court as a special judge for the trial of these cases. Thereafter, Weems and Owen filed formal motions and objections to the appointment of Sherman as special prosecuting attorney and these motions were overruled. This petition for writ of prohibition followed.
In support of the petition for a writ of prohibition, Weems and Owen make the following contentions:
(1) The circuit court does not possess any inherent authority to appoint a special prosecuting attorney to serve in place of a prosecuting attorney, a constitutional officer of the State.
(2) Section 24-108, Arkansas Statutes, enacted in 1838, does not provide for the appointment of a special prosecuting attorney until there has been an indictment of the prosecuting attorney.
(3) Section 24-108, Arkansas Statutes, is unconstitutional because (a) the special prosecuting attorney is to be paid only if he obtains a conviction, (b) this statute violates the doctrine of separation of powers, and (c) a constitutional officer can only be removed by impeachment or joint address as provided for in Article XV of the Arkansas Constitution.
(4) Weems did not agree to the appointment of Sherman as special prosecuting attorney and, furthermore, could not contractually convey his office to another person.
(5) Section 24-117, Arkansas Statutes, providing that the court can appoint an attorney at law to prosecute for the State when the regular prosecuting attorney has neglected or failed for any reason to attend to the courts of the circuit, is wholly inapplicable to this situation.
(6) Even if the circuit court has authority to appoint a special prosecuting attorney, such attorney must be a resident of the district and Sherman is not a resident of the 17th Judicial District.
(7) A special prosecuting attorney cannot utilize the provisions of Act 561 of 1973 to grant immunity to a witness since this authority is granted only to the prosecuting attorney.
(8) Even if the Court has authority to appoint a special prosecuting attorney to handle the case against Prosecuting Attorney Weems, there is no authority for the appointment of a special prosecuting attorney to prosecute Owen, a private citizen.
Article 7 of the Arkansas Constitution entitled “Judicial Department” provides in Section 24 for the election of a prosecuting attorney for each judicial circuit. This Court held in Smith v. Page, 192 Ark. 342, 91 SW2d 281 (1936), that a prosecuting attorney is a constitutional state officer acting in a quasi judicial capacity. There is no constitutional, statutory or case law authority supporting the Petitioners’ claim that the prosecuting attorney is a member of the Executive Department of the State. In fact, Article 6, Section 1, of the Constitution as amended by Amendment 37, Section 1, specifically provides that the officers of the Executive Department are Governor, Lieutenant Governor, Secretary of State, Treasurer, Auditor, Attorney General and Commissioner of State Lands.
Article 15, Section 1, of the Arkansas Constitution provides that all State officers, judges and prosecuting attorneys shall be liable to impeachment and removal from office for high crimes and misdemeanors and gross misconduct in office, and that “an impeachment whether successful or not, shall be no bar to an indictment”. In Speer v. Wood, 128 Ark. 183, 193 SW 785 (1917), this Court held that a prosecuting attorney who had been indicted could not, under the State Constitution, be suspended or removed from his office even though an amended statute included the prosecuting attorney with county and city officials who could be suspended by the Circuit Court upon indictment. However, the prosecuting attorney in that case was subsequently prosecuted on the grand jury indictment by a special prosecutor. Speer v. State, 130 Ark. 457, 198 SW 113 (1917).
Since prosecuting attorneys and other State officials may be indicted and tried for alleged criminal activities whether there is an impeachment or not, there must be some way within the framework of our State’s legal system for the prosecuting attorney to be indicted and tried even when the alleged crime occurs within the same judicial district in which he is elected the prosecuting attorney. Section 24-108, Arkansas Statutes, provides that it is the duty of the Court to appoint an attorney to “conduct the prosecution” when there is an indictment of the prosecuting attorney, but this statute makes no provision for the appointment of an attorney to assist the grand jury in the investigation of the alleged crime or in the drafting of an indictment. Section 24-117, Arkansas Statutes, provides that if a prosecuting attorney shall neglect or fail to attend to the courts of the circuit and to prosecute as required by law, it is the duty of the court to appoint an attorney to “prosecute for the State during the term”. A literal reading of the statutory provision expresses an intent that a special prosecutor shall be appointed only when the prosecuting attorney both fails to attend court and to prosecute as required by law. Here again, the statutory provisions fall short of providing authority for the circuit court to appoint a special prosecuting attorney to assist the grand jury when the elected prosecuting attorney is allegedly involved in the commission of a crime.
The absence of specific statutory authority for the appointment of a special prosecuting attorney under the circumstances of this case does not mean that the court is without authority to do what justice, reason and common sense dictate must be done. In other jurisdictions where there was the same lack of statutory authority for the appointment of a special prosecuting attorney under circumstances such as those here presented, the courts have held that there is an inherent power in the courts to make such an appointment. We hold that the Arkansas Circuit Courts also have such inherent power.
In State, ex rel. Thomas, Pros. Atty. v. Gessner, et al, Judges, 123 Ohio St. 474, 478 (1931), the judges of Mahoning County, Ohio, without notice to the prosecuting attorney, empaneled a special grand jury to investigate the alleged criminal conduct of the prosecuting attorney and appointed three members of the Ohio Bar to serve as special prosecutors. The Ohio prosecuting attorney in his petition for writ of prohibition raised many of the same objections here raised by the prosecuting attorney. In response to these objections, the Ohio Supreme Court said:
“It must be borne in mind that this proceeding is not one for the removal of the prosecuting attorney from office, or to appoint another prosecuting attorney in his place; neither is it an effort to appoint an assistant to the prosecuting attorney. The appointment of an assistant implies that such assistant would be under the direction of the prosecuting attorney himself. If there is any virtue in the proceedings which have resulted in the selection of counsel to aid and advise the grand jury, that virtue must be found in the selection of counsel who would be entirely independent of any influence on the part of the prosecuting attorney himself.
“There being no definite specific statutory provision for a finding of the temporary disqualification of the prosecuting attorney, it only remains to inquire whether the court possesses inherent power in the premises.
“It is not doubted that the court of common pleas has the power to call a grand jury into session and to instruct it. In the opinion of this court, there is no question of the right of the court to appoint counsel to aid and advise the grand jury concerning the matters presented to it, provided such counsel absent themselves from the jury room during the deliberations and the taking of the vote upon questions being determined by it.”
For other authorities upholding the inherent authority of the court to appoint a special prosecutor when the State’s attorney is under investigation, see Williams v. State, 188 Ind. 283. 123 NE 209 (1919), State v. Jones, 306 Mo. 437, 268 SW 83 (1924), 31 ALR 3rd 953, 986-988 (1970) and 65 Yale Law Journal 209, 216, 217.
In Commonwealth v. McHale, 97 Pa. 397, 406 (1881), the Supreme Court of Pennsylvania held that an act of 1866 enabling the court to appoint a special district attorney for the conduct of a case was not voided by the passage of a new constitution in 1874 making the district attorney a constitutional officer. In reversing the lower court which had quashed the indictments on the grounds that they were not signed by the district attorney, the Court said:
It was urged, however, that the indictments were properly quashed because not signed by the district attorney. They were signed by Guy E. Farquhar, Esq., who was specially appointed by the court to try these cases, under the Act of 12th March 1866, Pamph. L. 85. The appointment appears to have been regularly made in accordance with the provisions of said act, and was eminently proper, as the district attorney was a candidate at the general election at which the alleged frauds were committed, and which frauds, it is stated, increased his vote. It would therefore have been a breach of professional and official propriety for him to have acted as district attorney in these cases. But it is said the appointment was illegal because the Constitution adopted since the act of 1866 was passed, makes the district attorney a constitutional officer, and as such he cannot be stripped of his powers by the legislature. There is little force in this suggestion. While the legislature may not abolish the office, it can control the officer. They can regulate the performance of his duties, and punish him for misconduct, as in the case of other officers. And where he neglects or refuses to act, or where, from the circumstances of a given case, it is improper and indelicate for him to act, it is competent for the legislature to afford a remedy. This is all that the Act of 1866 does, and we think its provisions are not obnoxious to any constitutional provision.” (Emphasis Supplied).
The adoption by the State of Arkansas of the Constitution of 1874 making the prosecuting attorney a constitutional officer did not void the provisions of Section 24-108, Arkansas Statutes, passed in 1838 which provides for the appointment of a special prosecutor to prosecute the prosecuting attorney. Section 24-117, Arkansas Statutes, which provides for the court appointment of a special prosecuting attorney under certain circumstances was passed by the 1875 legislature. In Speer v. Wood, Supra, this court noted that the act under discussion was passed by the Legislature of 1877, which assembled less than three years after the adoption of the 1874 Constitution and contained members of the Constitutional Convention. The Legislature of 1875, no doubt, also contained members of the Constitutional Convention and must have intended that making the prosecuting attorney a constitutional officer did not prevent the appointment of a special prosecutor when the prosecuting attorney fails to attend court and to prosecute according to law.
The Petitioners argue that Section 24-108, Arkansas Statutes, is unconstitutional because it provides that if the prosecuting attorney is convicted, the attorney conducting the prosecution “shall be entitled to receive the sum of Fifty Dollars ($50.00) out of the salary” of the prosecuting attorney. In support of this proposition, the Petitioners rely chiefly on the decision of the U. S. Supreme Court in Ward v. Village of Monroeville, Ohio, 409 US 57, 93 S. Ct. 80 (1972), in which the court held that it was a denial of due process to subject a person’s liberty or property to the judgment of a court, the judge of which could benefit from the payment of a fine by the defendant. The case here before the Court does not involve a judge, but a prosecuting attorney, and no authority has been cited from any jurisdiction supporting the contention that a prosecuting attorney may not be paid a fee from the fine imposed upon a defendant whom he has successfully prosecuted. However, this Court does not pass on the broad question of whether such an arrangement for the payment of the prosecuting attorney may or may not be violative of due process. While the amount here involved is so small as to be inconsequential when compared to the overall expense of prosecuting the prosecutor, we note that the fee portion of the statute is severable from the remainder; and should it later be held unconstitutional that portion of the statute can easily be severed without affecting the remainder. Consequently, if error, it would be harmless error.
The Petitioners’ contention that the special prosecutor must be a resident of the judicial district in which he is appointed to serve is without merit. The two specific provisions for the appointment of a special prosecuting attorney are found in Sections 24-108 and 24-117, Arkansas Statutes. These sections only require that the special prosecutor be an attorney at law. When the Court, in the exercise of its inherent power under the circumstances presented by this case, appoints a special prosecuting attorney, there does not appear to be any reason why the Court should be limited to the appointment of an attorney who is a resident of the judicial district. It is likely that attorneys who are members of the same local bar as the prosecuting attorney may seek to avoid appointment as a special prosecuting attorney under the circumstances here presented, and the Court may, in the exercise of reasonable discretion, select an attorney from some other area of the State to so serve. Article 7, Section 24, of the Arkansas Constitution provides for the election of a prosecuting attorney by qualified electors of each circuit and quite logically provides that the person, learned in law, who is elected shall be a resident of the circuit from which he is elected. This constitutional provision clearly has no application to the appointment of a special prosecutor.
Also without merit is the Petitioners’ contention that a special prosecutor may not act as prosecuting attorney under the provisions of Act 561 of 1973 in which the prosecuting attorney is authorized to request an order of the Court to require that a person testify upon being granted immunity. A special prosecutor does not displace the prosecuting attorney from his constitutional office, but in order for him to be effective in the investigation and prosecution of the matters for which he has been appointed, he must have the right to proceed in the same manner as the prosecuting attorney. Section 43-919, Arkansas Statutes, provides that “no person except the prosecuting attorney, and the witnesses under examination, are permitted to be present while the grand jury are examining a charge”. In Bennett v. State, 62 Ark. 516, 36 SW 947 (1896), an attorney acting for the prosecuting attorney went into the grand jury room and examined witnesses. In finding no violation of the statute, we stressed the fact that the attorney acted in the prosecutor’s stead. Other cases to the same effect are Tiner v. State, 109 Ark. 138, 158 SW 1087 (1913), and Coon v. State, 109 Ark. 346, 160 SW 226 (1913).
Doyle Owen was indicted with Weems on the charge of arson and with Weems and Woolsey on the charge of conspiracy. Obviously, Weems and any deputy prosecuting attorney appointed by him are disqualified in the prosecution of the case against Owen and the case against Woolsey. The inherent power of the Court to appoint a special prosecuting attorney to investigate a charge, to assist the grand jury and to prosecute the prosecuting attorney, surely includes the right to appoint a special prosecutor to investigate, assist the grand jury, and prosecute a person charged as a co-conspirator with the prosecuting attorney.
The petition for writ of prohibition is denied. For good cause shown, an immediate mandate is ordered.
Holt, J., disqualified. | [
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Conley Byrd, Justice.
The sole issue on this appeal is whether appellant Robert Daniel Smith, an indigent, is entitled to credit for jail time served by him prior to conviction.
The record shows that appellant was held in custody from December 8, 1973, until the date of his trial before the court on January 11, 1974. The record also shows that appellant was sentenced and committed to the penitentiary for 15 years upon a charge of robbery with a firearm without being given the opportunity to show why he should not receive the full 15 year sentence.
Thus unlike Coleman v. State, 257 Ark. 538 518 S.W. 2d 487 (1975), the record shows appellant was not given the right of allocution and consequently, we cannot indulge in the presumption that the trial court did its duty according to law or that it exercised its discretion pursuant to Ark. Stat. Ann. § 43-2813 (Supp. 1973), in denying jail time, Shelton v. State, 255 Ark. 932, 504 S.W. 2d 348 (1974). Consequently, this case seems to be controlled by Smith v. State, 256 Ark. 425, 508 S.W. 2d 54 (1974), where we pointed out that the denial of jail time solely because of the indigency of the defendant amounts to an unconstitutional discrimination based on wealth, absent some “compelling government interest.”
Reversed and remanded with directions to give credit for jail time. | [
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George Rose Smith, Justice.
This is a petition by William H. Howell for a writ of certiorari to review the order of the Miller Chancery Court finding Howell guilty of criminal contempt of court and sentencing him to serve ten days in jail. We stayed the enforcement of the order pending our review of the proceedings — a review that has been delayed by the court reporter’s inability to transcribe the testimony promptly. The petitioner contends that the trial court erred in finding him guilty of an offense not specified in the order requiring him to show cause why he should not be punished for contempt of court. We find the petitioner’s contention to be sustained by the record.
On December 3, 1971, the trial judge, sitting as a chancellor on exchange, granted a divorce to the petitioner’s wife and awarded her the custody of the couple’s two-year-old daughter, Susan, with certain visitation rights in the father. Various post-decretal hearings appear to have been held. The present controversy arises from such a hearing held on July 31, 1973, at which the court approved a proposed trip that the petitioner Howell desired to take with his daughter.
No testimony was taken at that hearing. Opposing counsel had jointly conferred with their clients and had agreed upon detailed plans for the trip. It was expected that Mr. Howell and Susan would be gone for about twelve days, stopping at specified places in Oklahoma, at Fayetteville, Arkansas, and at Marshall, Missouri. It was contemplated that Howell’s mother, who lived in Oklahoma, would travel with her son and granddaughter for about seven days, including a four-day stop at Fayetteville. Howell’s older brother (a doctor) was also to join the group.
The trip was completed as planned, except that Howell’s mother was unable to be absent from her job and consequently did not accompany the others, as expected. Upon Howell’s return to Texarkana his former wife filed a motion that he be cited for contempt, on the ground that he had failed to make certain telephone calls that he had agreed to make and that Howell’s mother had not been present for at least two days during the trip. In response to that motion the trial judge issued an order directing Howell to appear and show cause why he should not be held in contempt “for his failure to comply with the plan for visitation approved by the Court on the 31st of July, 1973."
At the hearing upon the contempt charge Howell explained that his mother had been unable to leave her job. Needless to say, that was not Howell's fault. He also testified, without contradiction, that at the joint conference with the lawyers, before the trip, he had explained that his mother had a new job and might not be able to make the trip. That possibility, however, was not explained by anyone to the court when the plans were approved.
At the close of the hearing the trial judge found Howell guilty of contempt, upon the sole ground that he had not told the court on July 31 that his mother might not be able to leave her job. The judge pointed out that Howell is an attorney and had a duty to be open with the court and not permit his own lawyer to mislead the court.
We cannot sustain the conviction for criminal contempt. Such a charge must be established by proof beyond a reasonable doubt. Blackard v. State, 217 Ark. 661, 232 S.W. 2d 977 (1950). The accused is entitled to be informed with reasonable certainty of the facts constituting the offense, so that he can present his defense. Taliaferro v. Taliaferro, 252 Ark. 1078, 483 S.W. 2d 189 (1972).
Here there was no notice, either in the motion for citation or in the show-cause order, that Howell was being charged with a failure to inform the court of his mother’s possible inability to leave her work. Had that charge been made, Howell might have engaged additional counsel to act for him, so that his own attorney would be free to testify in his behalf, perhaps taking the blame himself. We cannot say that Howell was not prejudiced by being found guilty of a criminal charge of which he had no notice and therefore no fair opportunity to prepare his defense.
The writ of certiorari to review the trial court's order is granted, and the order is set aside. | [
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George Rose Smith, Justice.
This is an action in replevin brought by the appellee, a finance company engaged in business at Arlington, Virginia. The appellant is the owner of a garage at Bentonville, Arkansas. The parties assert rival claims to a Rover sedan that had been owned by Sam R. Laws. The issue, upon facts that do not seem to have yet been fully developed, is that of priority between the finance company’s security interest in the Rover and the appellant’s possessory claim to the vehicle. The trial judge, sitting as a jury, upheld the finance company’s priority and entered a money judgment against Henson, on the ground that the vehicle had unaccountably disappeared while it was in Henson’s possession.
We state the facts most favorably to the appellee. In the latter part of August, 1972, Laws brought a disabled Rover to Henson’s garage at Bentonville. Efforts to repair it were not successful. Henson sold Laws a 1964 Lincoln car, on credit, for $595. Laws promised to have the money within a week and left the Rover as security for the debt. Some two months later Laws brought back the Lincoln, which, according to Henson, had “busted rings” and would not start. Apparently Laws had obtained a license for the Lincoln by registering it in Colorado. Upon Henson's refusal to rescind the sale without having been paid, Laws departed, leaving both cars.
On November 2, 1972, which was apparently a few days later, an employee of the appellee finance company telephoned Henson and asserted a first lien against the Rover under a chattel mortgage that had been executed by Laws in Virginia more than a year earlier. Henson informed the caller that he planned to sell the Rover on November 4 to satisfy his claim.
On November 3, the day after that telephone call, Robert Blaylock, an employee of Arkansas Automobile Recovery, acting for the finance company, went to Henson’s place of business to take possession of the Rover. Blaylock offered to pay any repair bills that were owed on the Rover, but Henson refused to accept the offer or to surrender the vehicle, which was then on the premises.
On November 7 the finance company filed this action in replevin to recover the Rover. That afternoon one of the company’s attorneys accompanied a deputy sheriff to Henson’s garage to serve the writ of replevin. Henson stated that he did not know where the Rover was, though he said he had not sold it. At the trial Henson again disclaimed any knowledge of the Rover’s whereabouts.
The trial judge found that Henson “wrongfully held possession of the [Rover] owned by the plaintiff on November 2, 1972, and that the plaintiff was entitled to possession at that time.” The court awarded the appellee a judgment against Henson for $1,750.63, which was the unpaid balance upon the plaintiff’s mortgage and also the agreed value of the Rover.
We cannot sustain the court’s finding that upon the facts shown the appellee’s claim is prior to that of the appellant. All that the finance company relies upon is a chattel mortgage that is not shown to have been filed, pursuant to the Uniform Commercial Code, either in Virginia or in Arkansas. Without such a filing the appellee’s security interest has not been perfected. Ark. Stat. Ann. § 85-9-302 (Supp. 1973). The appellee argues that the record contains no proof that its chattel mortgage was not duly filed, but it is elementary that the appellee, as the plaintiff, had the burden of proving its right to prevail.
On the other hand, Henson had possession of the Rover when, as found by the circuit court, he “wrongfully” refused to surrender it. The Code, recognizing the validity of a common-law pledge, provides that a security interest in goods may be perfected by the secured party's taking possession of the collateral. Ark. Stat. Ann. § 85-9-305. Goods, as far as this case is concerned, are defined to include all things that are movable at the time the security interest attaches. § 85-9-105. Thus the common-law validity of a possessory lien is carried forward in the Code. See Anderson, Uniform Commercial Code, §§ 9-302:10 and 9-305:4 (2d ed., 1971); Ruud, Secured Transactions: Article IX, 16 Ark. L. Rev. 108, 125 (1961).
It follows that the trial court was in error in giving priority to the appellee’s chattel mortgage. The cause must therefore be remanded for a new trial, which may involve a re-examination of any or all issues. Clark v. Ark. Democrat Co., 242 Ark. 497, 413 S.W. 2d 629 (1967); Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S.W. 393 (1906). Therefore we need not discuss issues that depend upon the development of the proof, such as the appellee’s standing if its mortgage was actually filed or the effect of either party’s compliance with our motor vehicle title registration act. See Ark. Stat. Ann. § 85-9-302(4) and § 75-160 (Supp. 1973).
Reversed and remanded for a new trial. | [
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George Rose Smith, Justice.
In November, 1972, the plaintiff’s decedent, Carrie Lovett, was fatally injured by an uninsured motorist as she was walking across a street in Little Rock. Mrs. Lovett was covered by $10,000 uninsured-motorist clauses in each of two automobile insurance policies: One, a policy issued to Mrs. Lovett by the appellee Equity Mutual upon Mrs. Lovett’s own car and, two, a policy issued by the appellant Allstate upon Mrs. Lovett’s husband’s car. Both policies provided coverage for the named insured and for his or her spouse. Liability being admitted, the only remaining question in the case is whether Equity Mutual is liable for the entire $10,000, as Allstate contends, or the two insurance companies are liable for $5,000 each, as the trial court held. We affirm.
As far as this case is concerned, the two policies are identical. Both contain excess insurance coverage, but counsel for the rival companies agree that excess coverage is not involved here. What is involved is a pro rata provision that is common to both policies and reads as follows:
Except as provided in the foregoing [excess coverage] paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of this insurance and such other insurance.
Allstate argues that Equity Mutual is the primary insurer because Equity Mutual issued the policy upon Mrs. Lovett’s own car. We need not determine whether that argument would have merit if Mrs. Lovett’s car had been involved in the fatal accident, for that is not the fact. At the time of her death Mrs. Lovett was a pedestrian. The pro rata clause contains no language peculiarly applicable to that situation. Instead, the controlling provision limits liability “if the insured has other similar insurance available to him and applicable to the accident.’’ Both policies had that provision; so we do not see why either company should bear the entire loss. That conclusion, upon similar facts, was reached in Box v. Doe, 221 So. 2d 666 (La. App., 1969), cert. den., 254 La. 457, 223 So. 2d 868 (1969). To come to any other conclusion we should have to read into the policies something that is not there.
Affirmed. | [
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George Rose Smith, Justice.
This is a petition for a writ of habeas corpus filed by the appellee, Lula Mae Stracner Lipe, as the mother and next friend of Michael Stracner, a minor born January 26, 1956. The defendants are the State Department of Public Welfare and the Arkansas Children’s Colony Board, the latter now designated as the Arkansas Board of Mental Retardation. Ark. Stat. Ann. § 59-1003 (Repl. 1971). The petition alleges that Michael is unlawfully detained in custody at the Children’s Colony, in Conway.
The petition was filed in the Pulaski Circuit Court and was presented to Judge William J. Kirby. Judge Kirby issued a writ of habeas, directed to the above named defendants and returnable to himself. The defendants objected to the proceedings, on the ground that the writ should have been made returnable to the circuit court of Faulkner county, where Michael is detained. The trial court overruled that objection and ultimately entered a final order finding that Michael had been improperly committed to the Children’s Colony. The order directed that Michael be released “to the custody of Lula Mae Stracner Lipe, mother and next friend.”
The defendants were right in their objection to the court’s jurisdiction. The Pulaski circuit court had jurisdiction to issue the writ, it is true; but that jurisdiction did not rest, as the appellee argues, upon the statute fixing Pulaski county as the venue for actions against State officers. Ark. Stat. Ann. § 27-603 (Repl. 1962). Instead, the court’s jurisdiction was proper under the statute which provides that the Supreme, circuit, or chancery court’s power to issue writs of habeas corpus shall be coextensive with the State. Ark. Stat. Ann. § 34-1702 (Repl. 1962). In State v. Ballard, 209 Ark. 397, 190 S.W. 2d 522 (1945), we relied upon that statute in sustaining the Independence chancery court’s authority to issue the writ, even though it was directed to the custodian of a person in Saline county.
The question here, however, is where the writ should have been made returnable. The statute provides that the writ is to be directed “to the person in whose custody the prisoner is detained, and made returnable . . . before the Supreme, circuit or chancery judges of the county in which it may be served.” Ark. Stat. Ann. § 34-1710. Hence the controlling question is the identity of “the person in whose custody the prisoner is detained.”
We construe the statute to mean the person, usually an officer of some sort, having physical custody of the prisoner. “Habeas corpus,” literally translated, means, “You have the body.” In the few cases in which the issue has arisen, the courts have stressed physical custody in determining venue. Gibson v. Wood, 209 Ga. 535, 74 S.E. 2d 456 (1953); McBurnett v. Warren, 208 Ga. 225, 66 S.E. 2d 49 (1951); Love v. Love, 188 Kan. 185, 360 P. 2d 1061 (1961); Logan v. Rankin, 230 Miss. 749, 94 So. 2d 330 (1957).
Our statutes seem to be based upon that point of view, which has obvious practical advantages. The person having custody of the prisoner may be designated merely by the name of his office, if any. § 34-1711. Service is to be on the person to whom the writ is directed, “or, in his absence from the place where the prisoner is confined, on the person having him in immediate custody.” § 34-1713. The language just quoted suggests that the person to whom the writ is directed will ordinarily be found at “the place where the prisoner is confined.” Neither the officers of the State Department of Public Welfare nor the members of the Board of Mental Retardation (who are appointed by Congressional districts, § 59-1004) would ordinarily be found at the Children’s Colony, in Conway. We conclude that the Superintendent of the Arkansas Children’s Colony, a position created by statute, §§ 59-1101 and 59-1113, best fits the statutory designation of the person in whose custody Michael is detained. It may be observed that the same approach was followed by the litigants in the Ballard case, supra, where the writ was directed to the Superintendent of the Training School for Girls, which fixed the venue in Saline county.
It is appropriate for us to add, in the hope of avoiding needless litigation, that this habeas corpus proceeding is not one for the determination of custodial rights as between Michael’s parents. It simply tests the legality of his detention at the Children’s Colony. The issue of custody has been repeatedly before the Pope chancery court, where it originally arose in the parents’ divorce case brought in 1967, when Michael was 11. If the Faulkner circuit court finds the Colony’s detention to be illegal, custody will be determined by the prior orders of the Pope chancery court. Under our law the circuit court is not the proper forum for the determination of child custody, which often gives rise to litigation extending over many years, as conditions change. That jurisdiction is vested in the chancery courts.
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J. Fred Jones, Justice.
Billy J. Strang and Mary Alice Strang were husband and wife until that relationship was dissolved by action of the Sebastian County Chancery Court in a divorce decree awarded to Mrs. Strang on December 31, 1970. Three children were born as a result of the marriage and their custody was awarded to Mrs. Strang with the usual right of visitation by Mr. Strang. The 1970 decree then provided as follows:
“(6) The Estate by the entirety in all real estate owned by the parties is hereby dissolved and vest[ed] in said parties as tenants in common wheresoever located.
(7) Plaintiff is entitled to all right granted to the wife under Ark. Stat. 34-1214 except such interest in real estate provided for in paragraph (6) above.”
On January 11, 1972, Mrs. Strang filed a motion to modify the decree and in her motion she stated as follows:
“ [P]laintiff states that she was awarded all of the rights granted to the wife under Ark. Stat. 34-1214. In accordance with said Arkansas Statute, the wife after having been granted a Divorce against the husband was entitled by law to one-third of the defendant’s personal property absolutely, and one-third of all of the lands that defendant was seized of an estate of inheritance at any time during the marriage for this plaintiff’s life. That this defendant was the owner in fee to 60 acres of real estate in Section 6, Township 12, Range 27 in Sequoyah County, Oklahoma and fee owner in and to 60 acres of real estate in Section 7, Township 12, Range 27 in the County of Sequoyah, Oklahoma, on the date this plaintiff was awarded a Decree of Divorce from this defendant. That the Decree filed of record in this cause should be modified to show that this plaintiff is the record owner of an undivided one-third interest in and to the 120 acres of real estate owned by the husband and the specific property description should be set forth in detail. Further, this defendant should be ordered and directed to convey by quitclaim deed to the plaintiff a one-third undivided interest in and to said real estate.”
The original decree dated December 31, 1970, was rendered by a different chancellor than the one who finally entered the order from whence comes this appeal. After considerable correspondence between the attorneys and the chancellor, the chancellor on September 30, 1974, entered a final 11 page order, the pertinent parts of which appear as follows:
“(4) Plaintiff, will have the use, and possession of the homeplace, and with Defendant paying the existing monthly home mortgage payments, and up to $50.00 per month on the monthly utilities thereon. Plaintiff shall be responsible for the routine and ordinary upkeep and minor repairs on the homeplace. As the parties own said homeplace as tenants in common, the parties shall share equally in the cost of any major alterations or major repairs. However, no expense for major alterations, major repairs, or damages shall be incurred by the Plaintiff without having first conferred with the Defendant and obtaining his agreement if Plaintiff expects Defendant to share in the cost thereof, concerning the work required to be done; and each of the parties having opportunity to arrange for the completion of the major alterations and major repairs in a satisfactory manner at the lowest cost available. The Court expressly finds that the cost of re-painting the homeplace would be considered a major cost of upkeep and that the parties should equally share in the cost thereof. The Plaintiff shall have the right to make any and all repairs at her own expense to improve the property and without notice to this Defendant.
(5) Further, the Court finds that Plaintiff is entitled to a one-half undivided interest as a tenant in common in the following described realty in which previous ownership by tenants by the entirety has hereinbefore been dis solved: * * * [Lengthy description of the property]. [I]n Sequoyah County, State of Oklahoma, consisting of approximately 318 acres, together with all oil, gas, coal and all minerals in, under and upon said lands, said Warranty Deed being found in Deed Book 291, at Page 105, office of the County Clerk, Sequoyah County, Oklahoma.
Lot 34, Southbrook Addition to the City of Fort Smith, Arkansas situated in Fort Smith District of Sebastian County, Arkansas, said Warranty Deed being found in Deed Book 183, at Page 129, office of the Circuit Clerk, Fort Smith, Arkansas.
(6) Further, the Court finds that the Defendant is ordered and directed to convey to this Plaintiff a one-third interest for life in the following described realty located in the State of Oklahoma acquired by the parties during their marriage with title in Defendant’s name only, and ownea by Defendant on the 24th day of November, 1970:
The Southwest Quarter of the Northeast Quarter (SW Va NE Va ) and the West Half of the Southeast Quarter of the Northeast Quarter (W'A, SE!4, NE!4), Section 6, Township 12 North, Range 27 East, and the Northwest Quarter of the Northeast Quarter (NW!4, NE Va ) and North Half of the Southwest Quarter of the Northeast Quarter (SW /a , NE!4) of Section 7, Township 12 North, Range 27 East, situated in Sequoyah County, Oklahoma, said Warranty Deeds being found in Deed Book 293, at Page 522 and Deed Book 305, Page 451, in the office of the County Clerk, Sequoyah County, Oklahoma.
The Court finds that the Defendant be and is hereby ordered to convey said interest to Plaintiff within 15 days after the entry of this Order herein so that her interest therein might be of record. The Court further finds that upon demand by Plaintiff, Plaintiff is entitled to receive the value of this one-third life interest in said described Oklahoma property computed in accordance with the statutory tables set out in Arkansas Statute Annotated Section 50-705. The Court retains jurisdiction over this cause for the purpose of determining the fair market value for said acreage should an Agreement not be reached by the parties herein.
(7) The Court finds that the Defendant be and is hereby directed and ordered to pay to the Plaintiff the sum of $1,156.66 which is Plaintiff’s one-third interest in the accepted or agreed sale value of the personal property owned by this Defendant on November 24, 1970, amounting to $3,470.00. The Court finds that in order to do equity in this cause, Plaintiff’s interest in Defendant’s personal properties should be determined as of the time suit was filed in this cause. The Defendant did execute certain security agreements on the 16th day of November, 1970 which were filed of record on the 2nd day of December, 1970, but it is noted that Defendant satisfied said liens on March 2, 1971. That such action on the part of Defendant was during the pendency of this suit for divorce and designed to defeat or diminish Plaintiff’s property interest. The Court, therefore, finds that Plaintiff’s interest should not be reduced by the amounts of said security agreements for to do so under the circumstances of this case would be inequitable. The Defendant is directed and ordered to pay said sum of $1,156.66 to the Plaintiff within thirty days subsequent to the entry of this Order.
Further, the Court finds that the Plaintiff is entitled to a one-third interest absolutely in the following properties: Pontoon boat, mineral, calf feeder, miscellaneous tools, chest/chain saw, electric stove, and quail incubator. These items shall be appraised forthwith and sold within twenty days after the entry of the precedent for Order in this cause unless either party in the interim desires to purchase the other party’s interest therein and does so. The Court further finds that the photographic equipment, bed springs and mattress, iron bed rail, piano, dehumidifier, books, portable heaters, and household goods and furnishings are to remain with the respective parties as having heretofore been distributed to each other as personal effects or as part of the household goods or furnishings awarded to the Plaintiff for her use and that of her minor children.”
The chancellor retained jurisdiction for such orders as might be necessary in the future and awarded an attorney’s fee in the amount of $100 and the cost of the action against the appellant-defendant.
On appeal to this court Mr. Strang assigns error under five points stated as follows:
“The chancellor erred in awarding the appellee the use and possession of the homeplace while requiring the appellant to pay the existing home mortgage payments in the amount of $77.65 per month and up to $50.00 per month for utilities, and one-half the cost of any major alterations and repairs in addition to requiring him to pay child support and alimony in the amount of $100.00 per week.
The chancellor erred in applying Arkansas law to determine the appellee’s interest in the appellant’s separate real property located in Oklahoma.
The chancellor erred in failing to apply the law to the facts when he found that the appellee’s interest in the appellant’s personal property should be determined as of the time suit was filed rather than on the date of the decree for divorce.
The chancellor erred in requiring the appellant to pay appellee’s attorney’s fees and court costs.
The chancellor erred in finding that the appellee is en titled to a one-third interest absolutely in the following properties: Pontoon boat, mineral calf feeder, miscellaneous tools, chest, chain saw, electric stove, and quail incubator, and further erred in ordering that said items be appraised and sold inasmuch as on the date of the decree of divorce the appellant’s liabilities exceeded his assets and the appellee should only be entitled to one-third of appellant’s equity interest.”
We are unable to say that the chancellor abused his discretion as contended by Mr. Strang under his first assignment. The chancellor’s finding that Mr. Strang had an annual income of approximately $20,000 is supported by the evidence. The ages of the three minor children are 10, 9 and 8 years. The chancellor reduced the estate by the entirety in the Fort Smith homeplace to a tenancy in common and awarded Mrs. Strang the possession. Mr. Strang was directed to continue the mortgage payments of $77.65 on balance owed on the homeplace and to pay $50 per month on the utility bills. He was ordered to pay $100 per week alimony and child support to be allocated equally between Mrs. Strang and the three minor children, which would amount to $25 per week for each of them. Mr. Strang was ordered to pay one-half of any major repairs necessary in the upkeep of the homeplace.
The mortgage payments and major repairs on the property would increase and protect Mr. Strang’s undivided one-half interest in the property as well as that of Mrs. Strang, and Mrs. Strang would actually receive only about $88.82 per month benefits under the decree in addition to the $100 per month in alimony. The overall money award, aside from possible major repairs on the property, would amount to approximately $6,731 per year, or approximately one-third of Mr. Strang’s annual net income. While we consider the amounts of these awards quite generous under the evidence in this case, we are unable to say that the chancellor’s findings and order in connection therewith are against the preponderance of the evidence, or that he abused his discretion in making them.
As to appellant’s second point, Ark. Stat. Ann. § 34-1214 (Repl. 1962) provides in part as follows:
“In every final judgment for divorce . . . where the divorce is granted to the wife the court shall make an order that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and the wife so granted a divorce against the husband .. . shall be entitled to one-third [1/3] of the husband’s personal property absolutely, and one-third [1/3] of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property both real and personal, to which such wife is entitled.....”
This section then provides that when the court is satisfied that such real estate is not susceptible to division in kind without great prejudice to the parties interested, the court .shall order a sale of said real estate to be made by a commissioner to be appointed by the court for that purpose, at public auction to the highest bidder upon terms and conditions fixed by the court. The proceeds of such sale then to be paid into the registry of the court and divided between the parties. This section then provides that such judgment or decree shall be a bar for claim of dower in any of the lands or personalty of the husband.
In Beene v. Beene, 64 Ark. 518, 43 S.W. 968, we pointed out that the purpose of this statute was to put an end to controversies as to dower right in divorce actions and, as we interpret the chancellor’s order in the case at bar, he was simply attempting to determine and set aside to the wife the property she was legally entitled to as a matter of law and in lieu of her inchoate right of dower. The original decree simply recited that “she was entitled to all right granted to the wife under Ark. Stat. 34-1214.” The appellant has correctly quoted Lefiar, American Conflicts Law, § 234, (1968), but the appellant’s separate, real property involved in the case at bar, was acquired after marriage and § 235 of Lefiar states as follows:
“If new property is acquired after marriage by purchase or exchange for property previously owned by one or both of the spouses, every state agrees that the title, or at least the equitable title, in the new property is the same as that which existed in the predecessor property. Apart from that, if the newly-acquired property be immovable, there is no doubt that in the absence of a controlling prenuptial contract the whole law of the situs determines what marital interests exist in it.”
This statement from Leflar is not in conflict with § 174 having to do with the power of state courts to issue judgments or orders pertaining to lands in other states where, under the subtitle, “Actions Concerning Extrastate Land,” appears the following statement:
“As an incident to divorce proceedings also, an in personam order may be issued against the husband requiring him to convey extrastate land to his wife in lieu of dower. ”
This section begins with the statement:
“Although the courts of one state are without power to issue any judgment or decree directly affecting title to land in another state. ...”
As we interpret the chancellor’s decree in the case at bar, that is exactly what the order attempted to do: directly affect title to land in another state. The right of dower has been abolished in Oklahoma and the law of Oklahoma is quite different from § 34-1214, supra. 12 Okla. Stat. Ann. § 1278 provides as follows:
“When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden name if she so desires, and also to all the property, lands, tenements, hereditaments owned by her before marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony out of the husband’s real and personal property as the court shall think reasonable, having due regard to the value of his real and personal estate at the time of said divorce; which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or in installments, as the court may deem just and equitable. As to such property, whether real or personal, as shall have been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall make such division between the parties respectively as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof. In case of a finding by the court, that such divorce should be granted on account of the fault of aggression of the wife, the court may set apart to the husband and for the support of the children, issue of the marriage, such portion of the wife’s separate estate as may be proper.”
It thus appears that under Oklahoma law a wife has no inchoate right of dower in her husband’s property as is the situation in Arkansas and, therefore, the Oklahoma Legislature has not provided for disposition of such right in her husband’s lands in the event of divorce. On the contrary the Oklahoma Legislature in § 1278, supra, has vested a very comprehensive equitable power in courts concerning the husband’s real estate in connection with the award of alimony and child support. See Gardenshire v. Gardenshire, 2 Okla. 484, 37 P. 813 (1894); Haddad v. Haddad, 152 Okla. 264, 4 P. 2d 110. We conclude, therefore, that the chancellor erred in the case at bar in not applying the Oklahoma law in determining the property rights of the parties in this case.
As to the appellant’s third point, we are unable to say the chancellor erred. A wife does not acquire, by marriage, an inchoate right of dower in the personal property of her husband. Hewitt v. Cox, 55 Ark. 225, 15 S.W. 1026 (1891); Featherston v. Hartford Fire Ins. Co., 146 F. Supp. 535. Under ordinary circumstances where property subject to division in a divorce case is mortgaged, each takes subject to the mortgage. Crosser v. Crosser, 121 Ark. 64, 180 S.W. 337. However, in the case of Wilson v. Wilson, 163 Ark. 294, 259 S.W. 742, we held that where a husband, in contemplation of his wife’s suit for divorce, fraudulently conveyed his land and departed from the state taking his personal property with him, the value of the property so taken should be considered in determining her share of his property, and the same declared to be a lien on the land so fraudulently conveyed. In Dowell v. Dowell, 207 Ark. 578, 182 S.W. 2d 344, we held that where testimony supported a finding that a chattel mortgage was executed in fraud and to defeat the wife’s marital rights, the wife was entitled to her interest in the personalty free from the mortgage. See also Austin v. Austin, 143 Ark. 222, 220 S.W. 46.
The parties stipulated that the value of the personal property involved in the appellant’s third point had been sold and its value amounted to $3,470. The evidence was to the effect that the appellant had from time to time borrowed money from his Federal Employees Credit Union and on November 16, 1970, he executed a security agreement to the credit union covering some of the property involved. We find it unnecessary to set out the testimony pertaining to the transaction in detail. The chancellor saw the parties as they testified in the case and we are unable to say his findings as to the fraudulent intent of the appellant were against the preponderance of the evidence.
We are inclined to agree with the appellant as to his fifth point contending that the chancellor erred in finding that the appellee was entitled to a one-third interest absolutely in a pontoon boat, mineral calf feeder, miscellaneous tools, chest, chain saw, electric stove and quail incubator and in ordering said items to be sold. The appellee was awarded the household furniture and other items for the use of herself and her children and we think it only equitable that the appellant be awarded his mineral calf feeder, miscellaneous tools, chest, chain saw, electric stove and quail incubator. We find no error in the chancellor’s award of a one-third interest value in the pontoon boat to appellee, and we find no error in the chancellor’s award of attorney’s fee and court costs.
The decree is reversed as to the two 60 acre tracts of land individually owned by the appellant in Oklahoma. The appellee has no interest in this property. The decree is reversed as to the calf mineral feeder, miscellaneous tools, chest, chain saw, electric stove and quail incubator. These items are awarded to the appellant. One-third the value of these items is surely no more than two-thirds the value of furniture and other items awarded to the appellee.
In all other respects the decree is affirmed. The Appellee’s attorney is awarded a fee of $500 for his services in this court and the appellant is hereby ordered to pay said amount.
Affirmed in part, reversed in part.
Dissenting Opinion on Denial of Rehearing delivered June 23, 1975
See 84 Okla. Stat. Ann. § 214 | [
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George Rose Smith, Justice.
This litigation presents a decidedly novel fact situation. In January of this year the appellants, Marvin Loy and his wife, brought this suit to enjoin the City of Hot Springs from interfering with the Loys’ possession of a house and lot on which they had occupied as their home for more than 20 years. The city asserted title to the property under a warranty deed by which the Hot Springs Humane Society of Garland County, a charitable corporation, purportedly conveyed the property to the city on October 11, 1973. The chancellor entered a decree in favor of the city, finding that the deed was valid and that the Loys had no standing to maintain the suit. The Loys were ordered to vacate the property within 30 days. In this court the Loys question both grounds for the decree.
In 1945 the Garland Circuit Court, upon a petition signed by twelve persons, entered an order incorporating the “Hot Springs Humane Society of Garland County, Arkansas,” as a charitable corporation. The articles of incorporation defined the purposes of the Society as being to provide a shelter for dumb animals, to supervise the care and regulation of animals in Hot Springs, to raise money by subscription, membership dues, donations, or otherwise, to buy, sell, and own property, and to engage in other related activities.
In 1952 the Society employed Marvin Loy as its Animal Control Officer. Loy’s compensation consisted of a monthly salary and the right to occupy the property now in question, rent free. The Society had purchased that property, for $2,-000, with its own funds. Through the years the Society’s income was derived from gifts, annual contributions (referred to as membership dues) in whatever amount the various donors chose to give, dog license fees, and, in some years, monthly contributions of $200 by the city and $100 by the county. An animal shelter was maintained upon the property until 1969.
The Society’s affairs were largely conducted by three or four devoted persons, who served as officers. Finally, in 1969, the city adopted an animal control ordinance, established its own animal shelter, and superseded the Society in its field of activity. Loy was employed by the city from 1969 until 1971 and continued to occupy the property now in dispute. The city terminated Loy’s employment in 1971, but he remained in possession of the house and lot. By then the Society had become totally inactive. All its records had been destroyed, but the title to the property in issue was still in the Society.
In August of 1973 the city began taking steps to acquire the land. A “Petition for Reinstatement”, directed to the circuit court, was prepared. The petition recited the Society’s incorporation in 1945, the city’s subsequent operation of an animal shelter, and the Society’s ownership of the property now in question, which assertedly was not being used for any public purpose. The petition then alleged that “it is necessary to formally reinstate this corporation so that title to this property may be legally conveyed to the CJity of Hot Springs, Arkansas to be used for public purposes.” (The city’s answer in the case at bar asserts that it intends to lease the property to the Garland County Retarded Children’s Association.) The petition concluded with a prayer that the circuit court reinstate the Society so that it could convey title to the city. At the end of the petition there were blank lines for 12 signatures.
The two people who had been serving as president and secretary of the Society when it ceased to function were still residents of Hot Springs, and testified at the trial, but they were not given notice of the proposed petition to the circuit court. Instead, the petition was signed, at the mayor’s request, by 12 persons who happened to go into the mayor’s office upon business of their own. All 12 testified that they had never been members of the Society and had never contributed to it. In October the petition was presented to the circuit court, by someone not identified in the record, in an ex parte proceeding. The court entered an order reinstating the corporation “for the purpose of adopting a resolution authorizing the transfer of this property to the City of Hot Springs.”
On the night of October 11 seven of the twelve signers of the petition met in the mayor’s office. They elected a president and a secretary, who then executed a warranty deed, for a recited consideration of one dollar, conveying the property to the city. There is no contention that the city actually paid any consideration for the deed.
Upon the foregoing facts we cannot sustain the trial court’s decree. Ordinarily, it is true, the plaintiff in a suit involving the possession of land must recover upon the strength of his own title. We have held, however, that a plaintiff’s prior peaceable possession entitles him to recover land from a mere trespasser or interloper. Wyatt v. Griffin, 242 Ark. 562, 414 S.W. 2d 377 (1967); Vanndale Spec. Sch. Dist. No. 6 v. Feltner, 210 Ark. 743, 197 S.W. 2d 731 (1946). Thus the Loys are not necessarily without standing to maintain this suit.
The question is whether the city’s claim of title rises above that of an interloper. It does not. Exact rules are essential to the determination of the title to land. Here the Society originally purchased the property with its own funds. The city acquired no legally enforceable interest in the land either by its own contributions to the Society, which were not exclusive of other contributions made by the county and by individual donors, or by the city’s ultimate assumption of responsibility for the care of stray animals. Needless to say, a lawyer examining the abstract of title could not approve municipal ownership based upon such nebulous considerations.
There remains only the deed executed by the “reinstated” charitable corporation, pursuant to the circuit court’s order.We think that proceeding to have been void, and therefore open to collateral attack, for want of jurisdiction over the Society. Black v. Burrell, 175 Ark. 1138, 1 S.W. 2d 805 (1928); Crittenden Lbr. Co. v. McDougal, 101 Ark. 390, 142 S.W. 836 (1911). The 12 signers of the petition had no semblance of authority to act for the Society. They were volunteers who acted as the city’s puppets in ostensibly obtaining the Society’s property without notice to its surviving officers and without the payment of any consideration whatever. The law provides for the dissolution of defunct corporations, but it cannot be said that the procedure followed here, even if motivated by complete good faith, had the effect of divesting the Society’s title.
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Lyle Brown, Justice.
Harold Dean Hewitt is the principal owner of Springdale Liquors, Inc., which operates seven retail liquor outlets in the city of Springdale. Appellee Thelma Gage is the only other owner and operator of a liquor store in that city. One of Hewitt’s outlets was located at 610 West Emma Street. The Alcoholic Beverage Control Commission (ABC) authorized the transfer of the liquor permit covering that location to 2100 West Sunset. The latter address appears to be approximately across the street from Ms. Gage’s operation. Ms. Gage petitioned the circuit court to invalidate the ABC order and was granted a summary judgment. Hewitt and Springdale Liquors appeal.
Appellee’s motion for summary judgment was submitted upon her complaint and admissions of fact executed by appellant Harold Hewitt. It was revealed by those documents that Hewitt owned an interest in more than one retail liquor permit. On the basis of that undisputed fact the court granted summary judgment, citing Ark. Stat. Ann. § 48-310.2 (Supp. 1973) which was enacted in 1971, Act 106:
No retail liquor permit shall hereafter be issued, either as a new permit or as a replacement of an existing permit, to any person, firm or corporation, if such person, firm or corporation has any interest in another retail liquor permit, regardless of the degree of such interest.
We think the summary judgment was appropriate. The clear effect of the ABC order was to replace a permit previously issued for 610 West Emma Street with one covering the premises at 2100 West Sunset. And, as we have said, Hewitt, at the time of the replacement, owned an interest in several other stores. Appellants adroitly argue that the only thing which took place was the ABC inter-office “transfer” of a permit from one address to another. We cannot agree; in fact we can conceive of no clearer example of the replacement of a liquor license and we unhesitatingly conclude that the statute was written to cover just such a situation.
Appellants devote a considerable portion of their brief to the proposition that Ark. Stat. Ann. § 48-312 (Repl. 1964) has been repealed by implication. It reads:
A permit issued to any person, pursuant to this section, for any premises shall not be transferable to any other person or to any other premises or to any other part of the building containing the permitted premises. It shall be available only to the person therein specified, and only for the premises permitted and no other. [Acts 1935, No. 108].
The quoted statute is not pertinent to a resolution of the case at bar. In awarding the summary judgment the trial court did not pass judgment on the repeal or non-repeal of Section 48-312. Even if that section has been repealed (which issue we do not reach) appellants are still faced with the prohibition set forth in Section 48-310.2 supra.
Appellants contend that the entry of a summary judgment was an abuse of discretion. It is asserted (1) that without the record made before the ABC being furnished the trial court, the latter could not determine whether a new permit or a replacement permit was issued Hewitt. The argument is without merit. The admission of facts specifically states that the ABC transferred the liquor business operated at 610 West Emma to 2100 West Sunset. It is significant that appellants filed no counter-affidavits to the motion for summary judgment. Then (2) appellants say that it was error to determine that only one conclusion could be drawn from the facts. We find no merit in the argument and mention it only to inform appellants that we have not overlooked it.
Finally, appellants argue that their motion to dismiss appellee’s petition to the circuit court should have been granted. The argument is based on the fact that appellee did not file in the circuit court a copy of the proceedings before the ABC. That was not necessary. Acts of 1973, Act No. 189 is compiled as § 48-311 (Supp. 1973). Paragraph (E) provides that an appeal from any order of the ABC shall be taken to the circuit court and tried de novo. Appellee pleaded that she be granted a trial de novo. Hence the record made before the ABC became immaterial. Furthermore, had the appeal been taken under the provisions of the Administrative Procedure Act it would have been the duty of the ABC — not the aggrieved party — to “transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review”. Ark. Stat. Ann. § 5-713 (Supp. 1973). The ABC was fully aware of appellee’s petition because the individual members were served with summons.
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Elsijane T. Roy, Justice.
Appellee Arkansas Communities, Inc. (ACI) is a real estate development company owning and developing property on Lake Catherine in Hot Spring and Garland Counties. The subdivision Diamondhead was incorporated in February 1969, and contains about 6,000 acres of land.
In April 1970, ACI entered into an agreement with Westinghouse Credit Corporation (Westinghouse) to afford financing for purchasers of Diamondhead lots. From April 1, 1970, to February 1973, approximately 1,049 sales were made and from these sales installment contracts were sold to Westinghouse, others were sold to Southern Credit Corporation and the balance of approximately 230 contracts were retained by ACI.
The president of ACI testified that appellant purchased two lots on installment sales contracts on June 14, 1970. The contracts called for down payments of $450 and $1,500, respectively. The down payments were never paid, and after 27 months her contract was canceled for nonpayment.
Appellant then brought this action alleging her contracts were usurious and that improper late charges were made. She also alleged common questions of law and fact exist and sought to represent all purchasers of lots who signed retail installment contracts with ACI. For relief appellant demanded that all installment contracts purchased by Westinghouse be canceled and set aside and the lands described in such contracts be conveyed free and clear to all purchasers.
Her complaint also seeks as a class action recovery for violation of the Truth in Lending Act, for illegal repossession of lots and for unjust enrichment.
The chancellor indicated approximately 833 separate installment contracts would be involved in this case, and he ruled it could not proceed as a class action.
Appellant appeals to this Court for a reversal of that ruling or alternatively requests a writ of certiorari or a writ of mandamus directing the chancellor to permit the case to proceed as a class action.
Appellant’s first contention is that the order of dismissal prohibiting the suit from proceeding as a class action is a final and appealable order. We agree with appellant. Although Mrs. Ross’ individual suit was not ended by the chancellor’s order, the action on behalf of the class members was ended. Thus, a distinct and severable branch of the case has been finally determined. Parker v. Murry, 221 Ark. 554, 254 S.W. 2d 468 (1953), and Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974).
Appellant contends her action is properly brought as a class action under Ark. Stat. Ann. § 27-809, which provides as follows:
Where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring all before the court within a reasonable time, one or more may sue or defend for the benefit of all.
On March 17, 1970, the financial vice president of ACI wrote to Westinghouse and proposed to sell to Westinghouse “all notes receivable generated from lot sales” at a discount to yield Westinghouse “a reasonable return (14% per annum simple interest, initially),” and Westinghouse accepted the proposal.
Although the retail installment contract executed by each purchaser contains an interest rate of 10% per annum, appellant contends she has made a prima facie case of usury because of the agreement between ACI and Westinghouse at 14% per annum as indicated.
In her brief and in oral argument appellant placed great reliance upon the case of Vasquez v. Superior Court of San Joaquin County, 94 Cal. Rptr. 796, 484 P. 2d 964 (1971). In Vasquez 37 plaintiffs had each executed two separate contracts, one for the purchase of a food freezer and the second for a frozen food pack allotment. The plaintiffs sued for rescission of the contracts for fraudulent misrepresentation on behalf of themselves and others similarly situated. The California Supreme Court granted a writ of mandamus to compel the trial of the case as a class action.
We find no analogy between the sale of a freezer and the sale of a lot with its many variables. There were established prices on the food freezers and frozen food pack allotments and no established prices on the lots in Diamondhead subdivision. Most sales of the lots were at prices considerably below the suggested list price. As the chancellor pointed out in his opinion:
Here we are dealing with real property, it’s not like a refrigerator or automobile where the price can be established by competition or in the general course of trade. Real property is an item which can be bought or sold for any price obtainable and there’s no established price upon it.
California has extended the scope of its class action statute more than the courts have in Arkansas and more than several other jurisdictions which will be cited herein.
Arkansas cases construing our class action statute seem to follow the more limited application. The Arkansas statute is a codification of the equitable doctrine of virtual representation. Lightle v. Kirby, 194 Ark. 535, 108 S.W. 2d 896 (1937); Baskins v. United Mine Workers, 150 Ark. 398, 234 S.W. 464 (1921).
To maintain a class action there must be an ascertainable class and a community of interests among the members of that class.
The interest of appellant is the right to have the validity of her individual contract determined. She has no interest in the validity or invalidity of the contracts of any other purchaser. Similarly no other purchaser has any interest in her contract. Their rights being several there cannot be a class action as there is not a common bond or common claim and each will stand or fall on its own individual merit.
The theory underlying a proceeding as a class action is that of virtual representation. Under such a proceeding all members of the class are bound by the result of a litigation and any attempt by such members to bring claims subsequently would be barred by res judicata. We considered this proposition in the case of Connor v. Thornton, 207 Ark. 1113, 184 S.W. 2d 589 (1945). An action had been brought by Ted Wynia and other homeowners against defendants D. P. and R. E. Thornton claiming damages caused by soot and other substances arising out of the operation of their sawmill. A jury verdict was rendered for defendants and there was no appeal. Subsequently, Connor brought an action against the Thorntons for damages arising from the operation of this same sawmill. At the trial level even though the case was not brought as a class action it was held that the previous case bound the instant plaintiffs on the theory of virtual representation and thus the matter was res judicata. On appeal the matter was reversed with directions to proceed to trial. This Court commented:
In the very nature of things, there would have been difficulty in prosecuting it as such, because values of the several properties were different, distances from homes to the mill varied, and damage would probably be in ratio to proximity of the property to the mill. . . .
We pointed out that although the cause of damage might have been common, nevertheless the causes of action would all be separate and independent with each cause being determined on its own separate individual facts. Ark. Stat. Ann. § 27-801 provides that every action must be prosecuted in the name of the real party in interest. The factual situation in this case does not warrant a deviation from this requirement.
Class actions are in derogation of the general rule of procedure and in addition to commonality of questions of law and fact it should be shown that the procedure is superior to other available methods for the fair and efficient adjudication of the controversy.
Moreover this Court must be realistic in its appraisal of the situation and we cannot ignore the serious practical problems which would arise if we allowed the case to proceed as a class action. Considerable expense would be involved. How could the limited staff of the chancery court take care of the necessary proceedings, answer the inquiries for further information on the 833 transactions and keep the members of the class advised as to the status of the case thereafter? It is apparent a maze of procedural difficulties would be encountered. Although practical aspects of a case are not controlling on this Court’s decision they are among the factors to be considered.
In the case of Colbert v. Coney Island, Inc., 97 Ohio App. 311, 121 N.E. 2d 911 (1954), three plaintiffs attempted to br ing a class action alleging that they had been denied admission to an amusement park. In analyzing the statutory provisions, the court said:
The three plaintiffs herein obviously have a sympathetic interest in each other’s cause of action, but neither has any legal interest in the relief sought by each other. A common and important question of law is presented by each of the plaintiffs in which they have a community of interest, but their respective causes of action are separate and distinct. * * * Neither of the plaintiffs have any interest in the “subject of the action” of the other. (Emphasis supplied)
The rationale for disallowing a class action is well expressed in Fisher v. Health Insurance Plan of Gr. New York, 67 N.Y. Misc. 2d 674, 324 N.Y.S. 2d 732 (1971).
Separate wrongs to separate persons, though committed by similar means and pursuant to a single plan, do not alone create a common or general interest in those wronged. (Society Milion Athena, Inc. v. National Bank of Greece, 281 N.Y. 282, 22 N.E. 2d 374; Brenner v. Title Guarantee & Trust Co., 276 N.Y. 230, 11 N.E. 2d 890). Class actions may not be maintained when the asserted wrongs are individual to the different persons and each aggrieved person may determine for himself the remedy he will seek and may be subject to a defense not available to the others. (Gaynor v. Rockefeller, 15 N.W. 2d 120, 256 N.Y.S. 2d 584, 204 N.E. 2d 627).
The case at bar involves separate transactions, separate prepurchase negotiations with relatively different degrees of success in each, resulting in different prices on different lots. Each purchaser allegedly aggrieved may determine for himself the remedy he will seek and the defenses which he may or may not interpose, including usury.
Class action was denied in the case of Graybeal v. American Savings & Loan Association, 59 R.F.D. 7 (1973). There certain borrowers brought a class action on behalf of all persons who borrowed on their homes from defendant lending insitutions. Plaintiffs’ alleged breach of contract, unjust enrichment? usury, violations of the Consumer Credit Protection Act and violations of the Sherman Act.
The court held:
Plaintiffs’ breach of contract and unjust enrichment causes of action clearly involve questions of law or fact which will necessarily require answers based on each individual loan contract .... (Emphasis supplied)
* * * *
Again, the individual questions predominate over questions common to the proposed class. Whether the interest charged on a particular loan contract was usurious must be determined borrower by borrower, contract by contract.
Appellant grounds her own and the class action charges of usury on the caveat issued by this Court in the case of Hare v. General Contract Purchase Corporation, 220 Ark. 601, 249 S.W. 2d 973 (1952). By commenting on the application of the Hare case we do not imply that we are in any way determining the merits of the usury question. However, to determine if there are different factual questions to be passed on by the chancellor as to each transaction it is necessary to consider Hare.
Commonality is the key word in determining the propriety of a class action. However, the commonality required in a class action includes facts as well as law, and here we do not have uniformity of facts in the different sales.
In Hare we said:
(2) If the seller, whether he has quoted two prices to the purchaser or not, subsequently transfers the title documents to an individual or company which is engaged in the business or purchasing such documents, at a price which permits the transferee to obtain more than a return of 10% of its investment, then a question of fact arises as to whether the seller increased his case price with the reasonable assurance that he could so discount the paper to such individual or finance company. If that reasonable assurance existed, then the transaction is in substance a loan, and may be attacked for usury. (Emphasis supplied)
The phrase “then a question of fact arises as to whether the seller increased his cash price” is crucial in determining what appellant must establish for her individual claim and on behalf of each other purchaser of the lots whom she seeks to represent. One cannot be charged with having increased a price without showing that there was a price established. This is the first requirment of the Hare caveat. At the time appellant purchased her lots there had been no price established as to the lots.
Some of the lots had suggested prices which were supplied to the salesmen. Nevertheless actual sales were made at prices determined by bargaining back and forth. The negotiations were separate as to each individual customer. Once the price was agreed upon the customer could purchase the lot at that price for cash or by paying that price in installments evidenced by note or contract bearing 10% simple interest per annum. Moreover, very few sales, whether cash or financed, were sold at the suggested list price. Without determining facts in each individual transaction the chancellor could not ascertain if appellee increased such price to cover a discount bringing the transaction within the Hare caveat. It must also be established in each separate transaction that each salesman involved had not only increased the price to cover the discount but had reasonable assurance that a given finance company would in fact purchase the note or contract. Westinghouse had 10 days after receipt of a contract to accept or reject it. Whether the interest charged was usurious would necessarily have to be decided by the chancellor on a contract by contract basis.
In Lindsey v. Mid-State Homes, 239 Ark. 257, 388 S.W. 2d 551 (1965), in discussing the facts we said:
Jim Walters sold houses to appellants for a certain sum; a small amount was paid on the purchase price, the balance to be paid in monthly installments; a little less than 10% per annum was charged as interest on the unpaid balance. Jim Walters sold the notes for the unpaid balance to Mid-State Homes, Inc., its wholly owned subsidiary, at a discount of 20%. Appellants contend that the transactions amounted to usury under the decision in Hare v. General Contract Purchase Corporation, 220 Ark. 601, 249 S.W. 2d 973. (Emphasis supplied)
In Lindsey we also stated:
Under the decision in the Hare case, a situation of this kind gives rise to the question of whether the transaction is usurious. The chancellor held that it was not usurious and we cannot say the chancellor’s finding of fact is against the preponderance of the evidence.
Although very little of appellant’s brief is devoted to the Truth in Lending aspect of the case, having found that a class action would not be proper under the usury allegations of the complaint, we find many more variables in this contention and it would be even less appropriate for a class action. ACI and Westinghouse are required by the Truth in Lending Act to disclose to prospective customers the method of computing the amount of any default, delinquency or similar charges payable in event of late payments. It is quite evident there is even less “commonality” in these claims.
In Ratner v. Chemical Bank New York Trust Company, 329 F. Supp. 270 (S.D. N.Y. 1972), a Truth in Lending case, the court denied a credit card holder bringing the action for himself and others the right to proceed as a class action. Judge Marvin Frankel pointed out in Ratner the incentive of class action benefits is unnecessary in view of the Act’s provisions for a $100 minimum recovery, payment of costs and a reasonable fee for counsel. Furthermore, he stated that the allowance of this as a class action was essentially inconsistent with the specific remedy supplied by Congress.
For the foregoing reasons we affirm the chancellor’s holding that this case is not a proper class action.
Fogleman, J., concurs.
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J. FRED JONES, Justice.
This is an appeal by James L. Edrington from a chancery court decree denying his habeas corpus petition for the custodial possession of two minor children from his former wife and mother of the children, Barbara Edrington Fitzgerald. In 1962 Edrington obtained a divorce from the appellee in Jefferson County Kentucky while he was stationed in that state as a member of the Armed Forces. The custody of the two children, a boy then one year of age and a girl then seven months of age, was awarded to him by consent in the divorce decree.
Edrington was transferred to the state of Maryland in January, 1967, and since his retirement from the Armed Forces in 1972, he has resided in the state of Indiana. The children have lived with him in Maryland and Indiana except for visitation periods with their mother. The appellee mother married Fitzgerald in 1968 and has lived in the state of Arkansas since her remarriage. None of the parties have resided in Kentucky since 1967. The battle over the custody of the children in this case has been a continuous one extending through the courts of Kentucky, Maryland, Indiana and Arkansas and over a period of twelve years, the entire life of the children. Of course the children are the primary casualties.
The original divorce decree and many of the numerous subsequent court orders are not in the record before us but the history of the litigation is set out in a detailed “Findings of Fact and Conclusions of Law” filed on July 24, 1969, by the Jefferson Circuit Court in Kentucky denying one of Mrs. Fitzgerald’s petitions for change in custody. The pertinent portions of this ten page document are as follows:
“This action came before the Court following the filing of an amended and supplemental complaint by the defendant seeking change of custody of the two infant children of the parties.
On December 14, 1962, a judgment of divorce was entered incorporating an agreement awarding the plaintiff the custody of the two children, who are now seven and eight years of age respectively, and awarding the defendant the right of reasonable visitation.
Following several abortive efforts by the defendant to secure custody of the children an agreement was entered on June 1, 1965, ordering temporary custody to the defendant from June 1, 1965, to September 1, 1965. On November 5, 1965, another amended and supplemental counterclaim was filed by the defendant praying for the permanent custody of the children. The Court entered its findings of fact and conclusions of law on May 6, 1966, retaining custody with the plaintiff and awarding custody during the summer months to the defendant with support to be paid her at that time at the rate of 1120 per month.
Sergeant Edrington, plaintiff in this action, a member of the United States Army Air Force, was transferred to the Andrews Air Force Base in December, 1966, and reported there on January 19, 1967. He has been living there since that time with- his present wife whom he married on October 15, 1964, in Florida, and his two children by his first marriage, the subject matter of this action, and her child by a previous marriage and the child born of his present union.
# * *
in the year 1968 the defendant had moved to Maryland and lived within five miles of the residence of the plaintiff. * * * [FJriction arose which resulted in the employ ment of attorneys in Maryland by both of them. As a result, the defendant filed in the Maryland Court a petition for modification of visitation rights requesting that she be given Christmas visits. An order was entered on December 23, 1968, by the Prince George Circuit Court granting the plaintiff in this action custody of the minor children during the period of one week prior to the beginning of school in the fall until one week after the ending of school in the summer, granting Mrs. Fitzgerald custody for one week after closing of school in the summer until one week prior to the starting of school in the falL Other provisions were made in the order, the principal of which was that the mother should have the right of visitation with the children commencing Christmas of 1968 and every even numbered year thereafter from December 26 until the evening prior to the resumption of school and commencing Christmas of 1969 and every odd year thereafter from the first day of the Christmas school vacation until December 26.
* * *
Acting pursuant to this order the defendant took the children to Arkansas. She did not return them on the date specified in the Maryland order. The plaintiff was compelled to go to Arkansas to seek relief there. He received an order of the Arkansas Court following a hearing directing the defendant to turn the children over to him forthwith. This order was dated January 26, 1969. The following day the defendant removed the children to Atlanta, Georgia. She then spent about two weeks with them there and then came to Kentucky to this Court to file her amended and supplemental complaint. The children were finally delivered over to the plaintiff on February 14, 1969. . . .
An order was entered by the Prince George Circuit Court on January 28, 1968, holding Mrs. Fitzgerald in contempt of that Court for failure to comply with the order of December 23, 1968. The order further provided that Mrs. Fitzgerald’s rights of custody, visitation privileges, and support payments referred to in said order were held suspended until further orders of that Court.
* * *
The conduct of the defendant seems to this Court to be one of self-help in taking the law into her own hands. She deliberately disobeyed the orders of the Maryland Court and the Arkansas court. She and her present husband are not persons of limited means nor are they unversed in the field of domestic relations law. They were represented by lawyers in Maryland. They were represented by a lawyer in Louisville. They had counsel in Arkansas. The conduct of the defendant appears to this Court to be not only contemptuous of two other Circuit Courts of this nation but indicative of a campaign of harassment which is made possible by the financial resources of her new husband.
* * *
These children need more than anything a firm fixed base and periods of visitation with their secondary custodian which will not basically disturb their relationships with their primary custodians. The motion for a change in custody is overruled.
* * *
It is believed to be appropriate at this time to comment upon the jurisdiction of this Court and on the Doctrine of Forum Non Conveniens. This Court, of course, has jurisdiction under the continuing jurisdiction rule. See Batchelor v. Fulcher, 415 S.W. 2d 828 (Ky., 1967). As pointed out in that case, there are three concurrent bases of jurisdiction in cases of child custody. They are: domicile of the child in the state,.presence of the child in the state; and personal jurisdiction over the contending parties. In this case the only real contact that this Court has with the parties arises out of the previous proceedings in this Court and neither one of them lives in Kentucky nor do the children.
In the case of Walden vs. Johnson, 417 S.W. 2d 220 (Ky. 1967) at Page 223 it was pointed out that the right to control infants should be exercised only when a state has acquired a recognizable parens patriae interest in the child predicated upon bona fide residence or domicile. The domicile of the Edrington children and their residence is in Maryland. The Maryland Court has every advantage over this Court in being able to enlist the help of neighbors, doctors, teachers and other persons who are familiar with the living conditions of the Edrington children in making any further determinations of what is best for them. These observations are made purely for the purpose of obviating future litigation in this Court subject to the condition that the Maryland Court will hold that it does have jurisdiction over the subject matter notwithstanding the presence of the plaintiff on a military base in that state, it being the understanding of this Court that the matter has been raised in the Maryland Court by Mrs. Fitzgerald and will be adjudicated by that Court.”
Mrs. Fitzgerald appealed this decision to the Kentucky Court of Appeals and that court in affirming the trial court, among other things, said:
“Appellant’s next point questions the propriety of that part of the judgment relating to future jurisdiction of this controversy. While the judgment does not mention this question, it adopts the findings of fact and conclusions of law which suggest that the Maryland courts should logically have jurisdiction. In dealing with this question the chancellor said: ‘These observations are made purely for the purpose of obviating future litigation in this Court subject to the condition that the Maryland Court will hold that it does have jurisdiction over the subject matter * * * . ’ It was unnecessary that the chancellor embody this language in his findings, although it may have been a gratuitious and beneficial ‘observation.’ Of course, this part of the judgment is not binding on any court of the Commonwealth in the future for the simple reason that we cannot foretell future circumstances and conditions that may determine the question of jurisdiction.”
It appears that Mrs. Fitzgerald continued to file petitions or motions for change in custody and visitation rights in the Jefferson Circuit Court while she was a resident of Arkansas and Mr. Edrington and the children resided in Indiana. On December 20, 1973, the Kentucky Court entered an order reciting that Edrington and his Indiana counsel had been notified of the hearing by registered letter delivered on December 16. The order recited that Mrs. Fitzgerald resides in Arkansas; that she had driven 600 to 800 miles to Kentucky for the hearing on her motion and if the motion should be granted, she would have to drive to Indiana for the children before returning with them to her home in Arkansas. The court then, by order signed by The Honorable Richard A. Revell, Judge, recited as follows:
“The respondent, Barbara Fitzgerald (formerly Edrington) may have the two infant children, James L., Jr. and Marcelle, with her for visitation purposes from December 20, 1973, until January 7, 1974, or such time as school reconvenes, if earlier, and for such purposes may take said children with her out of the State of Indiana to her home in Arkansas. The respondent shall be responsible to see that said children are returned to their father, the petitioner, on the day before school begins.”
On December 21 Mrs. Fitzgerald filed the Kentucky Court order in the Washington County Indiana Circuit Court and on short notice to James Edrington’s Indiana attorney, obtained an order of the Indiana Court giving full faith and credit to the Kentucky Court order and obtained an order from the Indiana Court for the delivery of the possession of the children to her. The order provided in part as follows:
“That the Sheriff of Washington County forthwith pick up the children, James L. Edrington, Jr. and Marcelle Sabrina Edrington, and deliver them to the possession of Barbara M. Fitzgerald for visitation in accordance with the Judgment of the Jefferson Circuit Court.
This judgment may be executed immediately.”
The possession of the children was delivered to Mrs. Fitzgerald under this order and she returned with them to her home in Arkansas.
Instead of returning the children to Mr. Edrington in Indiana on January 7, as directed and ordered by both the Kentucky and Indiana Courts, Mrs. Fitzgerald on January 7, 1974, again filed a motion in the Jefferson Circuit Court for a change in custody. On January 28, 1974, the Jefferson Circuit Court entered an order which, among other things, extended the visitation period to March 11, 1974, when the motion for change in custody would be heard and ordered Mr. Edrington to reimburse Mrs. Fitzgerald certain expenses in traveling from her home in Arkansas to the Kentucky Court hearing.
On January 17, 1974, in connection with Mrs. Fitzgerald’s petition for possession of the children under the Kentucky Court order, the Washington Circuit Court in Indiana made the following “Entry:”
“It is therefore ORDERED, ADJUDGED AND DECREED as follows:
1. That the Defendant James Edrington has been in compliance with all prior orders of the Circuit Court of Jefferson County, Kentucky, and the Circuit Court of Prince George’s County, Maryland, in bringing the parties’ minor children into the State of Indiana.
2. That the Defendant James Edrington and the parties’ minor children are residents and domiciliaries of the State of Indiana.
3. That the Washington Circuit Court has jurisdiction of the Defendant and the parties’ minor children, by virtue of their residence and domicile.
4. That the Washington Circuit Court does now accept jurisdiction of this cause and all matters pertaining to the present and future custody of the parties’ minor children.
5.That the Plaintiff’s, Barbara M. Fitzgerald’s, peti tion shall be denied.
6. That the order of this Court heretofore entered on the 21st day of December, 1973, granting full faith and credit to the Kentucky judgment is in error and is hereby set aside and declared null and void.
7. That the parties ’ minor children have not been returned to the Defendant James Edrington, as promised to the Washington Circuit Court by Plaintiff’s counsel, and that the children shall now be immediately returned to the Defendant’s custody.
8. That the parties’ minor children are being illegally detained in the State of Arkansas or the State of Kentucky and that said children shall be immediately returned to the Defendant.”
Edrington filed his petition for habeas corpus in the Lonoke County Chancery Court. A hearing was had thereon on February 14, 1974, and on February 21 the chancellor entered a decree denying the petition. Apparently the chancellor felt that the Kentucky rather than the Indiana Court had jurisdiction in this case, and the Kentucky Court order rather than the Indiana Court order was entitled to full faith and credit in this case.
On trial de novo we are of the opinion the chancellor should have granted the petition for habeas corpus. Even if this were truly a conflict of laws case requiring a determination of whether full faith and credit must be given to a foreign court order or decree, we have held contrary to Mrs. Fitzgerald’s interest in this case.
In the case of Keneipp v. Phillips, 210 Ark. 264, 196 S.W. 2d 220, Mrs. Phillips was divorced from her former husband in Indiana in 1944 and the custody of a child was awarded to her. After her marriage to Mr. Phillips she became domiciled in Fayetteville, Arkansas, and in August, 1945, she brought the child to Arkansas where he lived with her and his stepfather. On September 11, 1945, the child’s father in Indiana applied to the Indiana Court that had rendered the divorce decree for a modification of the decree for custody of the child and, on September 26, 1945, an order was entered by the Indiana Court modifying its former decree as to custody and awarding the custody of the child to his aunt, Mrs. O. M. Dennison, as requested by the father. There was no personal service on Mrs. Phillips in Indiana in connection with the modification order. On November 14, 1945, the appellants, father and aunt of the child, filed suit as plaintiffs in the Washington Chancery Court of Arkansas to have the custody of the child awarded to the aunt as was decreed by the Indiana Court. The Washington Chancery Court denied the petition and in affirming the decree on appeal to this court we said:
“As to the effect to be given the modified decree, supra, procured by appellant, husband, while his son and former wife were residents of Fayetteville, Arkansas, the general rule, as well as that declared here by this court, is that it has no extraterritorial effect beyond the boundaries of Indiana where it was rendered, and that when the domicile of a child is changed and it becomes a citizen of another state, as in the present case, such child is no longer subject to the control of the courts of the first state. In the Tucker v. Turner case, supra, this court announced the rule, continuing the quotation from § 417 Ruling Case Law, supra: ‘Nor is a decree of a court of one state awarding the custody of a child binding upon the courts of another state under the full faith and credit clause of the federal constitution after the child had become domiciled in the latter state. Such a decree as to a child has no extraterritorial effect beyond the boundaries of the state where it is rendered, and the courts of the second state will not remand the child to the jurisdiction of another state, especially where it is against the true interest of the child. The reason for this rule is found in the fact that children are the wards of the court and the right of the state rises superior to that of the parents. Therefore, when a child changes his domicile and becomes a citizen of a second state, he is no longer subject to the control of the courts of the first state.’ ”
The Kentucky Circuit Court recognized as far back as July, 1969, that all the parties including the children had become nonresidents of the state and that court’s only jurisdiction at that time was based on the original divorce proceeding more than eleven years ago. It is true that the Kentucky trial Court went further than was necessary to the issues before it in reciting the three concurrent bases for jurisdiction in cases of child custody as set out in Batchelor v. Fulcher, 415 S.W. 2d 828, but that court concluded that the courts in the state of the children’s domicile were best suited and equipped to determine their custody on changed conditions, and we reach the same conclusion.
It is conceded by all parties concerned that the bona fide domicile of Mr. Edrington is in Indiana and that of Mrs. Fitzgerald is in Arkansas where they have lived for some time. It is also obvious that Mr. Edrington has the legal custody of the children and they have lived with him in Maryland and Indiana at all times except while visiting Mrs. Fitzgerald in Arkansas under temporary court orders of Maryland and Indiana where Mr. Edrington and the children were domiciled.
The length of this opinion is occasioned by the fact that Mrs. Fitzgerald is domiciled in this state and the custody of the children will be subject to judicial review for some time before they reach their majority. It is thought that perhaps this opinion may be of some value as a guide in avoiding quick orders on short notice and possible future litigation in this case. The decree of the chancellor is reversed and this cause is remanded with directions to grant the petition for habeas corpus, together with the necessary orders for enforcing same.
Reversed and remanded.
BROWN, J., concurs.
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J. Fred Jones, Justice.
This is a workmen’s compensation case in which a most unusual situation is presented on appeal.
The appellant-claimant, Edward Ethridge, was 14 years of age in July, 1971, when he lost part of a finger by accidental injury while working on a cotton picking machine in the course of his employment. The record does not contain the initial claim filed on behalf of the claimant but the record indicated it was filed against “Alexander Brown Associates.” The style of the proceedings before the Commission was “Alexander Brown Associates, Uninsured Employer.” Apparently the notice of the claim and notice of hearing went to Alexander Brown, at least Mr. Brown appeared at the hearing and testified.
It appears that in 1964 Mr. Brown had formed a corporation designated “Alexander-Brown, Inc.” for the stated purposes of owning and leasing motor vehicles for transporting property as a common and contract carrier and to buy, sell and otherwise deal in gasoline and oil products, and to buy and sell barrels, tanks and pumps for the storage and distribution of such products, and to acquire land and buildings in connection therewith. It appears that Mr. Brown owned this corporation. It further appears that several months after the injury, a limited partnership was formed between Alexander-Brown, Inc. and a number of individuals, and that the partnership was designated “Alexander Brown & Associates.”
At the compensation hearing Alexander Brown & Associates was represented by counsel who contended that the partnership, Alexander Brown & Associates was not in existence at the time of the injury, and that the claimant was actually employed by “Alexander-Brown, Inc.” The appellant-employee testified and so did Mr. Brown. The appellant testified that Mr. Brown hired him through Mr. Brown’s son; that Mr. Brown directed his work on cotton picking machines and that Mr. Brown paid him his hourly wages. Mr. Brown testified that he purchased a number of used cotton picking machines and was having them disassembled, cleaned up, and the parts painted with the idea of leasing some of the machines and selling some of the parts, and using some of the parts to repair other machines.
The pertinent portions of the findings, conclusion and award of the Commission appear as follows:
“On or about July 29, 1971, the claimant was an employee of George Alexander Brown d/b/a Alexander-Brown, Inc.; Brown & Associates, Inc.; and George Alexander Brown, individually; and the claimant was earning at that time an average weekly wage of $58.00 per week which would entitle him to a compensation rate of $37.70 per week.
* * *
The first question to be decided herein is who exactly was the claimant’s employer. The claimant testified that he was working for Mr. George Alexander Brown and was working on a cotton picking machine owned either by Mr. Brown or Mr. Brown’s company. Mr. George Alexander Brown testified that he had hired the claimant and that the claimant was assisting with refurbishing work on the cotton pickers owned by Alexander-Brown, Inc., which company he owned. The claimant was confused as to the exact name of the company for which he was working and the testimony introduced certainly shows why this confusion existed. Mr. Brown apparently engages or engaged in several overlapping ventures and used different corporation and individual names almost interchangeably. The one constant feature herein is that Mr. Brown himself was in charge of all of these operations and he testified that he did hire the claimant to work on machinery owned by Alexander-Brown, Inc.
As to whether the respondent is a proper party herein, the record clearly shows that Alexander Brown Associates existed at the time of claimant’s injury, not as a legal entity, but rather as one of several terms used in reference to various business enterprises owned by Mr. Brown. The fact that Mr. Brown claimed to be a corporation and was not makes him nothing more than an individual with a fancy name. Therefore, when the claimant filed his claim against Alexander Brown and Associates, he. was, in effect, filing a claim against Alexander Brown, individually. (Our emphasis).
* * *
The respondent is hereby ordered to pay to the claimant temporary total disability benefits in the amount of $37.70 per week beginning on July 30, 1971 and running through September 6, 1971. Respondent is to receive credit for any such benefits heretofore paid and all benefits due not heretofore paid will be paid at one time.
Respondent is further ordered to pay to the claimant permanent partial disability benefits in the amount of $37.70 per week for a period of \1 Vi weeks beginning on October 15, 1972. All such benefits due, not heretofore paid, will be paid at one time.
Respondent is further ordered to pay all reasonable medical expenses incurred by the claimant as a result of this accidental injury to his finger up to the time of his final release from treatment by Dr. Thomas Rooney.
Pursuant to Section 10 (e) of the Arkansas Workmen’s Compensation Act, the respondent is ordered to pay double the compensation benefits awarded herein.
The respondent is further ordered to pay to claimant’s attorney, Mr. Dewey Moore, Jr., the maximum attorney’s fee based upon this entire award.”
Upon appeal to the circuit court, that court entered an order as follows:
“On this day comes on for hearing the appeal from the judgment of the Arkansas Workmen’s Compensation Commission rendered on April 10, 1974, and entered of record on that date, claimant Ethridge appearing by his attorney, Dewey Moore, and respondent appearing by his attorney, Dale Price; and from a review of the record compiled in the Workmen’s Compensation Commission and other matters and things before the Court, the Court finds:
That the entity designated as the respondent in the Commission hearing is not a legal entity against whom an award could be made and that this matter be remanded to the Workmen’s Compensation Commission for such further proceedings as it may deem appropriate. ”
On appeal to this court appellant Ethridge designated the point he relies on as follows:
“The findings of the Workmen’s Compensation Commission that Alexander Brown and Associates was, in fact, a proper party to the action and that George Alexander Brown is liable to appellant for the compensation benefits claimed is supported by a preponderance of the evidence, and the circuit court erred in not confirming the award.”
Perhaps the confusion in this case could have been avoided if the employer had complied with the record and report requirements of Ark. Stat. Ann. §§ 81-1333 and 81-1334 (Repl. 1960). Be that as it may, Ark. Stat. Ann. § 81-1325 (Repl. 1960) pertains to appellate review by the circuit courts in workmen’s compensation cases and subsection (b) reads in part as follows:
“Upon the appeal to the circuit court no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the Commission, within its powers, shall be conclusive and binding upon said court. The court shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the order or award, upon any of the following grounds, and no other:
1. That the Commission acted without or in excess of its powers.
2. That the order or award was procured by fraud.
3. That the facts found by the Commission do not support the order or award.
4. That there was not sufficient competent evidence in the record to warrant the making of the order or award.”
Ark. Stat. Ann. § 81-1318 (Repl. 1960) provides for the filing of claims with the Commission within the statutory periods therein set out, and § 81-1323 (a) provides as follows:
“Within ten [10] days after a claim for compensation has been filed, the Commission shall notify the employer and any other interested person of the filing of such claim.”
Subsection (b) of this section provides in part as follows:
“The Commission shall make or cause to be made such investigation as it considers necessary in respect to the claim, and upon application of any interested party or on its own motion, shall order a hearing thereof. If a hearing on such claim is ordered, the Commission shall give the claimant and other interested parties ten [ 101 days’ notice of such hearing served personally upon the claimant and other interested parties, or by registered mail.”
Apparently the Commission’s reference to the “respondent” in its findings and award was confusing to the circuit court. We are of the opinion, however, that the circuit court’s order of remand would be confusing to the Commission. The circuit court apparently was guided more by the style of the claim before the Commission than by the substance of the Commission’s findings.
Whether Mr. Brown appeared at the hearing in response to notice served personally or by registered mail makes no difference in this compensation case. It is perfectly clear from the record that Mr. Brown was before the Commission and testified. It is also clear that the Commission’s findings were based on substantial evidence. As we read and interpret the Commission’s findings, the Commission simply found that Mr. Brown was doing business as Alexander Brown & Associates at the time of the appellant’s injury, long before the limited partnership by that name was formed, and that Alexander Brown was the appellant’s employer and the actual respondent in the case.
The appellee does not question the finality of the circuit court order. As we interpret the order, it found as a matter of law the respondent was not a legal entity against whom the Compensation Commission could make an award. The claimant’s injury occurred in 1971. The record is silent as to the cause of delay in this case and we can see no good reason for additional delay in remanding the case to the Commission for restyling the claim or beginning all over again.
The judgment is reversed and this cause remanded to the circuit court with directions to affirm the Commission’s award against Alexander Brown.
Reversed and remanded. | [
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J. Fred Jones, Justice.
The appellants, Joe Baldridge and his wife, own two lots with a residential building thereon at the corner of Cypress and D Streets on Park Hill in North Little Rock. Cypress Street is one block west of John F. Kennedy Boulevard, which is a divided four-lane thoroughfare, hereafter referred to as JFK. D Street crosses JFK and is one of the two streets carrying traffic from Park Hill west down Park Hill to Levy. The property for one-half block or 150 feet on each side of JFK is zoned C-3 or heavy commercial. All property west of Cypress, and that portion east of Cypress for a distance of one-half block or 150 feet, is zoned R-2 or residential.
Mr. and Mrs. Baldridge petitioned the North Little Rock Planning Commission to have their property rezoned from R-2 to C-l or light commercial. The petition was denied by the planning commission and also by the city council. The chancery court, on appeal, held that the action of the city council in denying the petition was not arbitrary and capricious and the petition was also denied by the chancellor. On appeal to this court Mr. and Mrs. Baldridge designate the points on which they rely for reversal as follows:
“Arkansas case law supports the contention of the appellants.
The trial court’s finding that the planning commission’s and board of adjustment’s refusal to rezone was not arbitrary is against the preponderance of the evidence.
Rezoning of appellants’ property from R-2 to C-l constitutes the highest and best use of the property.”
The Baldridges produced witnesses who testified that the highest and best use of their property would be for light commercial and as a buffer between the business property fronting on JFK and the residential property west of Cypress Street. The respondent-appellees produced witnesses who testified that the present zoning classification of the area involved was the result of long and deliberate study; that the streets west of JFK are not located or designed to accommodate a business area and that the area is entirely residential, which is its highest and best use. As in the usual situation in zoning cases, some neighboring property owners objected to the re-classification, while others said they had no objection.
All three of the appellants’ points really depend on their argument that the “Pfeifer Rule” announced in Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883 (1935), requires a reversal of the chancellor’s decree as a matter of law. The appellants point out that in Pfeifer we said: “any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. When a business district has been rightly established, the right of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property.” The appellants apparently interpret this quote as a rule of law to be rigidly and literally applied to all residential property in all residential zones where the residential property involved abuts upon or is adjacent to, property in a business district or zone which has been rightly established. The appellants have quoted correctly from our opinion in Pfeifer, but the above quoted language is not the unwieldy, rigid rule of law to be applied in all cases as the appellants appear to argue.
The primary question involved in Pfeifer was whether the property involved was actually a part of a residential district or had become a part of an expanding business district laid out by an ordinance passed under authority of Act No. 6 of the Third Extra Session of the 44th General Assembly in 1924. This Act only contained five short paragraphs reading as follows:
“Section 1. It is recognized and hereby declared that the beauty of surroundings constitutes a valuable property right which should be protected by law, and that this is particularly true of residential sections where people have established their homes.
Section 2. Cities of the first class are hereby authorized to establish zones limiting the character of buildings that may be erected therein, and that such zones may be of three classes; first, portions of the city where manufacturing establishments may be erected or conducted; second, portions of the city where business other than manufacturing may be carried on; third, portions of the city set apart for residences.
Section 3. When the city council shall have laid off such zones it shall not be lawful for anyone to construct or carry on within a given zone any business not authorized by the ordinance of such city establishing the same, unless with special permission granted by the council of said city, or by a commission which it may create for the purpose of determining whether an exception shall be made in the particular instance; and such exceptions shall be made only for good cause, and in case of abuse the adjacent property owners shall have the right to appeal to the courts of chancery to protect their property from depreciation by reason of the setting up of such exceptional business within the zone.
Section 4. The city council of such city shall have power to pass ordinances limiting the height of buildings in the zones created by it, so that the beauty of monumental buildings may not be impaired by the contrast.
Section 5. This act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist, and this act shall take effect and be in force from and after its passage.”
The language we used in Pfeifer applied to the facts of that case under the statutory law then applicable. In the continued application of the “Pfeifer Rule” the evidentiary facts in Pfeifer should not be overlooked or ignored. The so-called “Pfeifer Rule” as above set out did not spring full grown as a separate and distinct rule of law in the Pfeifer decision. It drew its substance from the facts in that case and should only be applied as a rule of law in, and to, similar factual situations. For the context in which the “Pfeifer Rule” came into being, we quote a more complete statement from Pfeifer as follows:
“Giving due effect to the statements and opinions of all the witnesses, we are of the opinion that the evidence establishes very clearly and beyond controversy that the locality in question is a business district which has been well established, and which is now expanding, the expansion having reached the point where appellees are constructing their building. There is substantial evidence tending to show that the value of some of the adjacent residence property will be depreciated on account of the lessening of usable value of the property for residence purposes, but we do not think that this affords justification for interfering with the gradual expansion of the business district, which has already been established. As the size of the business district grows, it ceases to be a residence district to that extent within the purview of the zoning ordinance, and any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. When a business district has been rightly established, the rights of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property.”
In reaching the conclusion that the property involved in Pfeifer was in an established expanding business district, we pointed out very pertinent evidence as follows:
“The building to be constructed ... is situated near the center of the block, fronting north on Prospect Avenue, between Palm and Beech Streets. There is an alley running north and south through the center of the block, and this building adjoins the alley on the west side. There is a residence west of the building on the northwest corner of the block, and the wall of the building is within about eight or ten feet of the residence. The rear end of this building will come within about fifteen feet of a residence fronting on Palm Street. Across the alley from the building of appellees there is a residence building, and a brick store building is on the corner of Prospect and Beech Streets. The whole of the block on the east, fronting north on Prospect, is built up with two-story business buildings, and on the north side of Prospect the corresponding block is thus built up, and also the east half of the block on the north side of Prospect, in front of the block where appellees’ building is situated, is covered with business structures. The other half of the block is occupied by two residences.”
Aside from the changes in the law since 1925, we had a quite different factual situation in Pfeifer than we have in the case at bar. In Pfeifer the property was similarly situated to what would have been the situation concerning the appellants’ property in the case at bar, if the appellants’ property had fronted on JFK. In Pfeifer a proposed business building, to front on Prospect Avenue, was involved and there were only two other residential buildings in the same block fronting on Prospect. One of the residences was on the corner west of the property involved and the other residence was east of it across the alley running north and south through the center of the block. A business building had already been built on the northeast corner of the block and the next block east was solid business property.
In the case at bar all of the property fronting east on JFK is zoned for business and all the property on the west side of the blocks and fronting on Cypress is zoned residential. It is recognized by all parties concerned that if the appellants’ petition had been granted, their property would have constituted the first and only property zoned for business west of the half blocks fronting on JFK. There was evidence that two blocks north of the appellants’ property a parking lot for a business fronting on JFK extended back to Cypress Street, but this property was not zoned for a parking lot or other business. We are, therefore, of the opinion that residentially zoned property which happens to be adjacent to business zoned property is not automatically entitled to rezoning as business property as a matter of law under Pfeifer. To hold otherwise would be illogical and could easily defeat the entire purpose of municipal zoning, in that a string of business establishments could be driven through any residential neighborhood by the simple process of touching each other. Such is not the intent of the zoning laws and such is not the intent of the so-called “Pfeifer Rule.”
Since our decision in Pfeifer we have attempted to point out in other cases that the “Pfeifer Rule” does not apply with equal force and rigidity to each and every case regardless of the location of the property or the direction of business expansion. In the case of City of Little Rock v. Parker, 241 Ark. 381, 407 S.W. 2d 921 (1966), the petitioner sought a rezoning of property from an A-l family residential classification to an F-commercial classification. The city council denied the petition and the chancellor found the council’s action arbitrary under the “Pfeifer Rule.” In reversing the chancellor’s decree this court referred to the drastic changes in the purpose and wording of zoning laws since Pfeifer, specifically referring to Act 186 of the Acts of the General Assembly of 1957, Ark. Stat. Ann. § 19-2825 (Supp. 1965), and in so doing we said:
“It is apparent that the passage of Act 186 of 1957, to some degree, necessarily modified our holding in Pfeifer, for a strict and literal interpretation of all the language in that case would certainly result in nullifying the effort by a city to coordinate development of lands, and, more than that, in effect, would nullify Act 186. The right and responsibility for classifying the various areas in the city are with the zoning authorities, and their decision will only be distrubed if it is shown that they acted arbitrarily. Lindsey v. City of Camden, 239 Ark. 736, 393 S.W. 2d 864.”
The so-called “Pfeifer Rule” was applied in the case of City of West Helena v. Davidson, 250 Ark. 257, 464 S.W. 2d 581 (1971), but in that case the facts were similar to those in Pfeifer. In the Davidson case, referring to the language in Pfeifer, we said:
“We think this language is applicable to the case at bar in view of the fact that appellees’ property is practically surrounded by established commercial activities which border on both sides of a major highway having a traffic count of approximately 15,000 vehicles per day.”
In Metropolitan Trust Co. v. NLR, 252 Ark. 1140, 482 S.W. 2d 613 (1972), both the city council and the chancery court refused to rezone family residential property (R-l) to a commercial zoning classification (C-3), and in reversing the chancellor’s decree, we again applied the “Pfeifer Rule,” but in doing so we said:
“The subject property, the southwest quadrant of this intersection, is the only quadrant zoned residential. The other three quadrants are zoned commercial. The northwest quadrant, which is directly across McCain Boulevard from appellant’s property, is the present construction site of the largest regional shopping center in the state. This mall contains more than 50 acres and is designed to serve a trading area of approximately 75 miles. The commercially zoned quadrant abuts a multifamily residential area. The commercially zoned northeast quadrant abuts a light industrial area separated only by the city limit boundary. The southeast quadrant, zoned for commercial use, abuts farm land outside the city limits. The subject property was incorporated into the city a few years ago and became classified as residential (R-l). Before the incorporation, its use was unrestricted. From May, 1967, until the end of 1968, the property was the site of a commercial sales business. It has never been used for residential purposes and is now vacant. . . .
* # *
In the case at bar, we need not reiterate the evidence which we have detailed to the effect that appellant’s property is in the midst of an established commercial district and borders upon two intersecting 4-lane thoroughfares with a heavy traffic count. Further, this diamond shaped intersection was designed and constructed to accommodate heavy traffic. Also, it appears undisputed that the present classification for residential purposes is not suitable for this 22-acre tract. Neither does it appear from a preponderance of the evidence that the proposed rezoning would be detrimental to adjacent property owners.”
The appellants rely upon Davidson and Metropolitan Trust Co., supra, in support of their argument that the “Pfeifer Rule” should be rigidly applied to the case at bar. We conclude that the “Pfeifer Rule” like many other rules of law, especially in equity cases, should be applied only in conjunction with a thorough examination of the facts in the particular case. In Davidson and Metropolitan Trust Co. the involved property was referred to as “almost surrounded” in one case and “in the midst of an established commercial district” in the other case. In the case at bar the appellants’ property is adjacent to an established business district with a high lattice metal fence separating it from the business property, and the appellants’ requested rezoning is the first attempt to invade for business purposes the residential zone area west of JFK.
As to appellants’ second point, the meaning of the word “arbitrary” in connection with zoning was recently defined in the case of W. C. McMinn Co. v. City of Little Rock, 257 Ark. 442, 516 S.W. 2d 584 (1974), wherein we said:
“This Court, while recognizing that the word ‘arbitrary’ has several definitions, has recognized the following as the most generally accepted usage: ‘Arising from unrestrained exercise of the will, caprice, or personal preference; based on random or convenient selection of choice, rather than on reason or nature.’ City of Little Rock v. Parker, 241 Ark. 381, 407 S.W. 2d 921. Then we have held that ‘arbitrary’ also means decisive but unreasoned action and that ‘capricious’ means not guided by steady judgment or purpose. City of Little Rock v. Habrle, 239 Ark. 1007, 395 S.W. 2d 751.”
In the case of Olsen v. City of Little Rock, 241 Ark. 155, 406 S.W. 2d 706 (1966), we said:
“In a case of this kind the chancellor should sustain the city’s action unless he finds it to be arbitrary. No matter which way the chancellor decides the question, we reverse his decree only if we find it to be against the preponderance of the evidence. City of Little Rock v. Garner, 235 Ark. 362, 360 S.W. 2d 116 (1962).”
We are unable to say that the chancellor’s decree in the case at bar was against the preponderance of the evidence.
The decree is affirmed.
Brown and Byrd, JJ., dissent. | [
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JOHN A. FoGLEMAN, Justice.
Appellant filed a motion for post-conviction relief under Criminal Procedure Rule 1 from his conviction of forgery and uttering on October 9, 1973 in a trial in which he was represented by the public defender. No appeal was taken. The only ground for reversal of the circuit court judgment denying appellant relief is the assertion that the court erred in refusing to admit some paper, which he asserts, without support in the record, would have established that he was not released from the Texas State penitentiary until after the crimes of which he was found guilty had been committed. No explanation is offered for appellant’s failure to appeal.
Criminal Procedure Rule 1 was not designed to permit review of mere error in the conduct of a trial and it is not a substitute for a direct appeal. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657. The rule permits review only to determine whether a sentence is subject to collateral attack for violation of constitutional rquirements or statutory enactments or for other such reasons. Thacker v. Urban, 246 Ark. 956, 440 S.W. 2d 553. Even if we should hold that the paper (of which no proffer was made ) was admissible, either as an official document or a business record (and we do not) this would not afford any basis for relief under our rule governing post-conviction relief. Errors in ruling on competency of evidence are not a basis for collateral attack under Criminal Procedure Rule 1.
The judgment is affirmed.
It is true that appellant’s counsel asked to be permitted to introduce this paper, but no proffer was made for the record, so it is impossible for us to know its content or review the court’s ruling, even if it were otherwise admissible. See Cy Carney Appliance Co. v. True, 226 Ark. 961, 295 S.W. 2d 768, 61 A.L.R. 2d 1264; Arkansas State Life Ins. Co. v. Allen, 166 Ark. 490, 266 S.W. 449; 7. .7. Ellis & Co. v. Farrell, 146 Ark. 274, 225 S.W. 349. | [
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Lyle Brown, Justice.
This action involves the issue of auto theft liability under a contract issued to appellees Phillip H. Switzer and Roderick D. Switzer, by appellant, State Farm Fire and Casualty Company. The chancellor held that the auto had been stolen by Hazel, wife of Roderick, and removed by her to Yakima, Washington. Based on the finding of theft, judgment was rendered in favor of Phillip Switzer for the lien he claimed against the truck as a result of his sale of the truck to Roderick Switzer.
There is little dispute about most of the essential facts. Roderick Switzer orally purchased the truck from his brother, Phillip, in July, 1972. It was agreed that Ovid Switzer, father of Roderick, would pay Phillip $1,000 on behalf of Roderick’s interest in the truck; also, Roderick would pay to Phillip the amount of an indebtedness owed to GMAC, being approximately $1,000. Roderick was to repay Ovid after Roderick had finished paying the balance owed GMAC. Shortly thereafter, Phillip and Roderick made application to appellant’s local agent for insurance. On that instrument Roderick showed that he was to be the operator “100 per cent”; however, he also listed his wife, Hazel, as an operator.
Subsequent to the issuance of the policy domestic difficulties arose between Hazel and Roderick Switzer. On or about September 19, 1972, Hazel packed her belongings in the truck and drove from Crossett to Yakima, Washington, the previous home of the couple. The trip was made without prior notice to Roderick. There were later telephone conversations between the couple, Hazel making no pretense to conceal her location. No serious effort was made to seek return of the truck. A divorce was granted Roderick in November, 1972.
Phillip paid GMAC the balance owed the latter on the truck and took an assignment of GMAC’s lien. Of the SI,000 which Ovid Switzer agreed to pay Phillip for his equity in the truck, Ovid Switzer made two payments totaling $200.00; that left an unpaid balance of $800 and Ovid Switzer made no further payments after the truck was removed to Yakima, Washington. Totaling the amount paid GMAC and the $800 unpaid by Ovid Switzer, the trial court found that Phillip suffered a loss of $1,592.27, for which he had an equitable lien on the truck, and entered judgment against appellant in that amount. Roderick dismissed his complaint at the close of the case.
Phillip testified that he notified the National Automobile Theft Bureau about the taking of the car. He said he looked for the truck in El Dorado, Arkansas, with the help of the police. He testified that he found out about the truck being kept in Yakima; he conceded he made no effort to get it back.
Roderick testified he notified the local sheriff of the taking of the vehicle. He said he gave Phillip two addresses at which Hazel might be found in Yakima. One of those addresses was the motel at which Hazel was working as manager. About Hazel’s use of the truck, he conceded he listed Hazel as one of the users. He said he told the insurance agent “that Hazel Switzer would drive the truck occasionally. As far as I was concerned and as far as State Farm is concerned, she was an authorized operator of that vehicle.” Subsequent to arrival in Yakima, Hazel called and told Roderick she wanted to keep the truck. “I assumed she was claiming an interest in the truck. I made no effort to get the truck”. Hazel Switzer wrote the checks for the payments made to GMAC, apparently on the joint bank account of husband and wife.
The parties to this action agree that the principal crucial question around which liability of State Farm revolves is whether the taking of the truck by Hazel Switzer and the removal thereof to Yakima, Washington, amounted to a theft. Hazel claimed some interest in the truck. She testified that she took the truck to Washington “because she had gone into her marriage with a car which she no longer had and with more than she was taking out of it [the marriage] ”. Thus she asserted a claim of right and asked Roderick to mail the registration papers to her. Also, the vehicle was not entirely within the classification of “the personal property of another”. Additionally, the legal title to the truck was never changed from Phillip; the payment from Roderick and Hazel and the payment from Ovid for the benefit of Roderick gave Roderick and Hazel an equitable interest in the vehicle. Hazel’s right to drive the truck without restriction was listed in the application for insurance by Roderick. Apparently a warrant was never issued against Hazel for theft. And, finally, there was no effort to repossess the truck made by either of the Switzers, notwithstanding they were apprised of the exact location of the vehicle. Under the peculiar circumstances of this case it is more reasonable to assume that Hazel took the truck under a claimed right than it is to assume her taking constituted a felonious theft. This being a chancery case, we try it de novo.
Reversed and dismissed. | [
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Lyle Brown, Justice.
This action concerns the ownership of a patented slate placer mining claim in Polk County described as the W Vi of SW !4 of NW XA of Sec. 20, T. 3 S, R. 28W. For their title the appellants, the Herrings, who brought this suit, rested their title on a deed from a trustee in bankruptcy in Oklahoma City. Appellees based their title on a deed which passed title out of M. E. Herring. The chancellor held that the subject lands were not processed through the bankruptcy proceedings involving the estate of M. E. Herring and the title of Howard and Paul Brawdy was therefore superior to that of Michael M. Herring and wife, appellants herein.
We shall refer to the described twenty acres as deeded lands. Technically it is appropriate to refer to the twenty acres as a patented slate placer mining claim. That is because it was so patented by the United States Government. A patent to a placer claim passes to the holder title to the surface. 54 Am Jur 2d § 83, Mines and Minerals. If land is located and held as a placer mining claim under the act of Congress it is a mining claim before patent in every sense of the word and it does not cease to be a mining claim when by a patent from the government the fee is transferred to the locator or his assigns. Berentz v. Belmont Oil Co., 84 P. 47 (1906).
In 1960 M. E. Herring, father of appellant Michael M. Herring, acquired an option to purchase the twenty acres in question plus some mining claims staked and claimed on government land adjacent to the twenty acres of fee or private land. The option expired on December 16, 1960, but was kept alive by $50.00 monthly installments under the extension lease.
M. E. Herring had a close acquaintance with appellee Paul Brawdy. The latter drove Herring around on trips, and Brawdy loaned Herring money to make the monthly installments to extend the option. In April 1961, at the invitation of Mr. Herring, who was old and having money troubles, Paul Brawdy took assignment of the option for approximately $2,500 and expenses to clear title; Brawdy obtained title to the twenty acres plus assignment to him of the option of the mining claims heretofore mentioned.
After obtaining title to the twenty acres and assignment of the mining claims, Paul Brawdy learned of a bankruptcy proceeding in federal court in Oklahoma City involving M. E. Herring and the appellant Michael M. Herring, among others, and some companies in which the Herrings had some interest.
The trustee in bankruptcy caused Paul Brawdy to be made a party to the bankruptcy proceedings and Brawdy was directed to show cause why he should not be required to turn over the twenty acres of fee land and the mining claims in Arkansas. At this time Paul Brawdy had deeded the twenty acres to his brother, appellee Howard Brawdy, but the deed was for the purpose of securing the brother who had advanced money to Paul Brawdy, and the deed to Howard was unrecorded until a later date. In any event Paul Brawdy and his attorney joined issue in the Oklahoma City bankruptcy proceeding and litigated the twenty acres plus the mining claims. After the show cause order the proceedings concerning the bankruptcy and the twenty acres may be succinctly described. On May 22, 1962 there was a hearing in the United States District Court on the show cause petition. An order was issued therein vesting legal title in certain described properties, real estate and mining claims in the trustee. The twenty acres with which we are concerned was misdescribed as the S Vz of the SW !4, NW 14.
On October 2, 1964, the U. S. District Judge in Oklahoma City, having jurisdiction over the bankruptcy proceedings, heard a petition by the trustee for an order authorizing him to sell at private sale for cash the subject twenty acres. That petition was granted, the sale was confirmed and the trustee executed a deed to appellant Dorothy E. Herring to the twenty-acre tract of land, the subject of this litigation.
From an examination of all the entries made in the bankruptcy proceedings it is clear to us that those proceedings included the twenty-acre tract and that all parties so understood it. This is especially true when we consider the fact that the twenty acres consisted of a patented slate placer mining claim, and it was evident to all concerned that the court was reaching out after all the mining claims held by the bankrupt. The fact that an accurate description of the twenty acres was erroneous in one of the documents is not fatal. In Wilson v. Spring, 38 Ark. 181 (1882) we said:
All attorneys and land agents are well aware of the multiplicity of mistakes which take place in the description of land by fractions of sections and by townships and ranges, and base lines and meridian lines. The changes of fractions and numbers and cardinal points are so constant, and in illegible or careless manuscripts mistakes are so frequent with the most careful, that courts should not hesitate to make the proper corrections where they are indeed obvious.
We think it is evident that the failure to include the twenty acres in one of the bankruptcy court documents with a proper description should have been treated by the chancellor to be a misprision and that the court-approved trustee deed to Mrs. Herring constituted good title as against appellees, the Brawdys.
Reversed and remanded. | [
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Frank Holt, Justice.
This case results from a collision involving appellee’s diesel Mack tractor-tank trailer and appellant’s pickup-cattle trailer. The jury found appellant negligent and awarded appellee $20,000 for damages to its vehicle and $5,578 for lost profits. Appellant’s only contention on appeal is that damages for loss of use are not recoverable. Therefore, appellant asserts that the trial court erred in instructing the jury as to lost profits.
The tractor-trailer, the only one owned by appellee, was used on daily short hauls to transport fuel from a supplier to appellee’s truck stop. Appellant agrees that the rig was irrepairably damaged. Appellee promptly attempted to find a replacement by bidding on a used one and, also, ordering a new truck of the same model as the damaged one. A strike, however, prevented action on the bid. Other tractor-tank trailers were immediately available. However, they were considerably more expensive and did not meet appellee’s need for a particular type vehicle, which is a tractor designed to pull two tank trailers. It was unique equipment known as a “West Coast” model. Approximately six months after the accident, appellee received the new truck it had ordered. Several days later, appellee was notified that it was the high bidder on the used truck. Since appellee then had two trucks and needed only one, it sold the used truck. During the six months’ period that appellee was without the use of the special type equipment, it contracted with an independent carrier to haul its daily fuel supply. The record shows that this expense reduced its monthly earnings by SI,758.76. The reasonableness of the time in acquiring the needed replacement and speculation as to the loss of profits are not questioned on appeal. As indicated, the loss of profit based upon loss of use of this vehicle is the only issue presented.
In Jones v. Herrin, 252 Ark. 837, 481 S.W.2d 362 (1972), we adhered to our cases that an individual could not recover compensation for loss of use of a vehicle pending repair of the damages caused by a wrongdoer. However, we recognized “that there is some merit” in allowing recovery. The concurring justices said that our rule denying the loss of use of a vehicle as an element of damages “. . . . is demonstrably unjust, especially when, as here, the plaintiff customarily uses the vehicle in his business. Such an award is essential if the injured person is to be made whole.” Subsequently, in Sharp v. Great Southern Coaches, Inc., 256 Ark. 773, 510 S.W. 2d 266 (1974), we recognized and approved the recovery of compensation for loss of use as an element of damages where a commercial vehicle was partially damaged and enunciated the criteria in making that determination. The owner was allowed the income lost while the truck was being repaired, citing Ark. Const. Art. II, § 13 (1874), which in pertinent part reads:
Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character . , . .
We further said:
We note that we ordinarily recognize loss of use as an element of damages where the detention of other types of property is involved, McDanial v. Crabtree, 21 Ark. 431 (1860), and Continental Gin Co. v. Clement, 176 Ark. 864, 4 S.W.2d 901 (1928). When our prior decisions with reference to the compensability of loss of use of a vehicle are considered along with the criticism that has been leveled at fhem, Jones v. Herrin, supra, together with the inconsistent position we have taken when loss of use of other property is involved, we find that our former decisions with reference to the compensability for loss of use of a vehicle were somewhat arbitrary and should be overruled when only a partial destruction is involved.
Appellant correctly asserts that Sharp, supra, awards loss of use only when a partially damaged vehicle is involved. Appellant is correct in stating that numerous jurisdictions refuse to allow loss of use where the vehicle is totally destroyed, as here, and must be replaced. See 18 ALR3d 497; Blashfield, Automobile Law and Practice, 15 § 480.4. The denial of such relief apparently stems from the historical limitations on the action of trover at common law. Nashban Barrel & Con. Co. v. G. G. Parsons Trucking Co., 49 Wis. 2d 591, 182 N.W. 2d 448 (1971); 18 ALR 3d, § 9, p. 519.
The most recent cases, and seemingly just approach, allow recovery for loss of use where, as here, upon proper pleading and proof, there is total destruction of the vehicle. The recovery is subject to the reasonableness of time required for replacement and unspeculative lost profits. See Nashban Barrel & Con. Co. v. G. G. Parsons Trucking Co., supra; Dennis v. Ford Motor Company, 332 F. Supp. 901 (W.D. Pa. 1971); Daniel v. Kerby, Ky., 420 S.W. 2d 393 (1967); New York Central Railroad Company v. Churchill, 140 Ind. App. 426, 218 N.E. 2d 372 (1966); Laney Tank Lines, Inc. v. United States, 237 F. Supp. 205 (E.D. S. Ca. 1965); and 18 ALR3d, § 9, p. 519. In New York Central Railroad Company v. Churchill, supra, a tractor-trailer unit was totally destroyed. The court allowed damages for loss of use. The owner was awarded the reasonable rental value of a rig during the time needed to replace the destroyed vehicle.
There seems to be no logical reason to allow loss of use as was awarded in Sharp and not extend it in the case at bar. Appellant negligently damaged appellee’s .truck and it took six months, after diligent effort, to replace it because of its unique design. During this period, appellee suffered pecuniary loss, if the truck had been severely damaged, but repairable, our rule, as announced in Sharp, would unquestionably be applicable. The main consideration in Sharp was to make the plaintiff whole, a concept which certainly is not novel.
Affirmed.
Jones and Byrd, JJ., dissent. | [
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John A. Fogleman, Justice.
On this appeal, appellants seeks to sustain service of process on the appellee-defendant (under the “longarm” provisions of the Uniform Interstate and International Procedure Act [Ark. Stat. Ann. § 27-2501 — 2507 (Supp. 1973)]) in her divorce action. The chancery court denied appellant a divorce, holding that, even though appellee had actually received the notice given, service on him had not been completed. We agree.
Service was attempted by the issuance by the clerk of a writ labelled “summons” but in the form of a warning order. By affidavit filed in the case the clerk deposed that she had served this process, to which a copy of the complaint was attached, on appellee by certified mail and had received a return receipt therefor. This receipt was attached to the affidavit. It showed that a letter from the clerk for delivery to the addressee only had been directed to Leslie Leverne Jenkins, c/o Clyde Jenkins, Route 1, Louisville, Illinois. The receipt was signed “Leslie Jenkins.”
Appellant places her sole reliance upon § 27-2502 B and 27-2502 C 1(a) which reads:
B. Personal jurisdiction based upon enduring relationship. A court may exercise personal jurisdiction over a person domiciled in, organized under the laws of', or maintaining his or its principal place of business in, this State as to any cause of action.
C. Personal jurisdiction based upon conduct.
1. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s (a) transacting any business in this state;
We readily reject the idea that appellee, either by marriage to appellant or by living with her in Arkansas, was in any sense of the word transacting any business in the state on which personal jurisdiction over appellee could have been exercised by the chancery court. Furthermore, the provisions of §27-2502 B are not applicable, because there is no showing whatever that appellee is, or for that matter ever was, domiciled in the State of Arkansas.
The order of the chancery court is affirmed. | [
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J. Fred Jones, Justice.
This is an appeal by Searcy County from a circuit court judgment which reversed an order of the county court on appeal, and granted certain claims filed by the appellee Billy Joe Holder, as sheriff of Searcy County, which claims had been denied by the county court. On appeal to this court Searcy County has designated the points on which it relies for reversal as follows:
“. . . the court erred in allowing claims Nos. 11815, 11814, 11816 as they are barred by Arkansas Statutes Ann. § 27-2001 (Supp. 1973).
. . . the court erred in allowing the claims made for the deputy sheriff car expense in that such claims were not proper and are not authorized by law.”
We now discuss the assignments in the order designated and we shall confine our discussion to the designated points. As to the first point, Sheriff Holder filed claim No. 11611 and it was disallowed by the county court on May 1, 1973. He filed claims No. 11683 and 11753 and they were disallowed by the county court on June 29, 1973. On August 1, 1973, Sheriff Holder refiled the previously disallowed claims as claims No. 11814, 11815 and 11816. These claims filed on August 1, 1974, were disallowed by the county court on the same date they were filed, and Sheriff Holder perfected his appeal to the circuit court on January 30, 1974.
It was the county’s contention that the six month statute of limitations for appeals from county court orders to the circuit court under Ark. Stat. Ann. § 27-2001 (Supp. 1973) started running from the date the claims were first denied by the county court, and that the appeal filed on January 30, 1974, was filed too late. It was the sheriff’s contention that the appeal time under the statute, started running from August 1, 1973, when the claims were again denied by the county court. The circuit court agreed with the sheriff and rendered judgment accordingly and in so doing, we conclude that the circuit court erred.
The pertinent portion of § 27-2001 provides as follows:
“Appeals shall be granted as a matter of right to the circuit court from all final orders and judgments of the county court ... at any time within six (6) months after the rendition thereof, . . . the clerk of the circuit court shall forthwith order an appeal to the circuit court... at any time within six (6) months after the rendition of any other judgment or order, and not thereafter.”
When the time in which an appeal must be taken is fixed by statute, the provision which limits the time is jurisdictional in nature, and the appeal must be taken within the time designated. Bank of El Paso v. Neal, 181 Ark. 788, 27 S.W.2d 1024; Camden Gas Corp. v. Camden, 183 Ark. 583, 37 S.W.2d 74; Edgmon v. Edgmon, 193 Ark. 1076, 104 S.W.2d 452. See also Tilsworth v. Mayfield, Judge, 241 Ark. 641, 409 S.W.2d 500.
As to the appellant’s second point, claims No. 11817, 11818, 11910, 11967, 12178, 11265 and 11266 were filed by the sheriff for expenses for a deputy sheriff’s car and were denied by the county court. The orders denying these claims were timely appealed to the circuit court and the circuit court rendered judgment therefor. It was the county’s contention that there was no statutory authority for allowing these claims and it was the sheriff’s contention that the claims were legitimate and should be paid under authority of § 64 of Act 610 of the Acts of the Legislature for 1973.
Act 610 is entitled “AN ACT to Fix the Salaries or Remunerations of the Sheriffs of the Various Counties of the State of Arkansas; and for Other Purposes.” Section 64 of the Act pertains to Searcy County and provides as follows:
“(64) Searcy County — Salary or remuneration and Deputies as now provided by law, plus the further and additional sum of $4,800.00 for Deputy Hire, payable on a monthly basis out of the County General Fund, Sheriff’s car expense of $3,600.00 annually payable on a monthly basis out of the County General Fund. Said Sheriff shall be allowed $4.00 per day per person for feeding prisoners.
Plus the further and additional sum of $4,800.00 for second Deputy hire, paid on a monthly basis out of County General Funds. A car furnished with radio equipment, shall be furnished by County for use of Sheriff’s Department. Expenses for said car shall be paid from County General Fund.
Plus the additional hiring of part-time radio operator at the rate of $2,400.00 annually to be paid from excess fees and commissions.
All other excess fees and commissions shall be paid into the County General Fund.”
It was the county court’s position that the last two sentences in the second paragraph of § 64, supra, “A car furnished with radio equipment, shall be furnished by County for use of Sheriff’s Department. Expenses for said car shall be paid from County General Fund,” were the only authority the county had for paying expenses of a car for the sheriff’s department; and, that the phrase “said car” referred only to a car belonging to, and purchased by, the county for use of the sheriff’s department.
It appears from the abstract of the record that under a previous mandamus order from the circuit court, Searcy County had placed an order for an additional automobile furnished with radio equipment in compliance with § 64 of Act 610. It appears that pending delivery of the automobile, the sheriff substitued a privately owned automobile so equipped, for use in the department by one of the deputies, and that the claims were for gasoline used in connection with the operation of said automobile. The amounts or the integrity of the claims is not questioned.
We are of the opinion that the county court placed too narrow construction on the statutory authority for “furnishing a car” with radio equipment and that the circuit court did not err in the judgment it rendered on these claims.
The judgment is reversed as to claim No. 11814 in the amount of $490, claim No. 11815 in the amount of $645 and claim No. 11816 in the amount of $486., In all other respects the judgment is affirmed.
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J. Fred Jones, Justice.
This is an appeal by Albert C. Kruzich and other residents of West Memphis, Arkansas, from a decree of the Crittenden County Chancery Court denying their petition for a return of money they paid for fuel adjustment charges added to their electric bills, and denying their petition for a permanent injunction restraining the appellee, West Memphis Utility Commission, from collecting fuel cost adjustment charges for electric services. The question presented is primarily one of law stated by the appellants in the point they rely on as follows:
“The chancellor’s holding, that although a schedule of rates for the several services furnished by the appellee was established by city ordinance, said rates may be amended by resolution of the city council to allow appellee to pass on to its consumers indefinite and increased operating expense, was contrary to the law and the evidence.”
The facts appear as follows: Prior to 1954 the City of West Memphis purchased the privately owned electric power distribution system in West Memphis. In December, 1954, the appellee-defendant, West Memphis Utility Commission, was created by Municipal Ordinance No. 292 under authority of Act 562 of the Acts of 1953, Ark. Stat. Ann. §§ 19-4051 through 19-4060 (Repl. 1968). The utility rates in effect at the time of purchase were adopted under Ordinance No. 292 and were confirmed from time to time by additional ordinances in connection with bond issues.
The City of West Memphis purchases its electrical energy at wholesale from the privately owned Arkansas Power and Light Company and distributes the energy through its own distribution system to its local consumers. The last contract between the Arkansas Power and Light Company and the City of West Memphis was dated February 2, 1967, and was for a period of 20 years, with an automatic year to year extension clause in the absence of notice to the contrary. The contract between the city and AP&L provided that both the company and the city reserved the right to seek amendments as to increase or decrease in the rates and charges set forth in the contract in accordance with law, from any state or federal regulatory body having jurisdiction thereof; and further provided, that the charges and payments for electric service, required to be paid by the city under the agreement, should be made only from the gross revenues of the city electric system as a necessary expense of its operation. The cost of electrical energy to the city increased from time to time and the city through the Commission absorbed the additional cost until September 20, 1973, when by Resolution No. 472 the city authorized the West Memphis Utility Commission to pass on to the consumer the fuel cost adjustment increases included in the cost of electric power from AP&L.
Only a portion of the original Ordinance No. 292 is exhibited in the record and it reads as follows:
“The board shall, with the approval and confirmation of the city council, make a schedule of rates for the several services and for the different classes of consumers, and shall make such rates for the service rendered as will enable them at all times to pay operating expenses, interest, sinking funds requirements, amortization payments, reserve for working capital, remunerations and replacements, casualties and other fixed charges, and in the event service is furnished consumers or users outside the city, the rates charged such persons shall not necessarily be as low as the rates charged within the city. The commission, by and with the approval and confirmation of the city council, shall have the right to change the schedule of rates for utilities in the city and outside the city from time to time as in their judgment may be necessary or proper. Any rates approved by the city council shall be sufficient to provide for payment of all bond maturities or other indebtedness issued against the utility or constituting a lien against the systems or the revenue therefrom, including reserves therefor and provide for all expenses of operation, and rcplacemeñt and maintenance of the plants or systems."
That portion of Resolution No. 472 complained of by the appellants reads as follows:
“The City Council of the City of West Memphis authorizes fuel cost adjustment increases included in the cost of electrical power from Arkansas Power and Light Company to the West Memphis Utility Commission and/or the City of West Memphis be passed on to the ultimate consumer on bills or statement, from said Commission in direct proportion to the amount of power ultimately consumed by the respective customers of the West Memphis Utility Commission.”
The appellants argue that since the original rate schedule was authorized by municipal ordinance, it cannot be changed by municipal resolution. The appellee argues that the fuel cost adjustment charges fluctuate from month to month and are not actually a change in rate schedule. It argues that the additional costs are of a temporary nature; that the approval and confirmation by the city council is in the nature of an administrative act and may be accomplished by resolution. The chancellor agreed with the appellee and we agree with the chancellor.
In McQuillin, Municipal Corporations, rev. vol. 5, § 15.01, is found the following statement:
“While the term ‘ordinance’ has been used in various senses, the term is generally used, in this country, to designate a local law of a municipal corporation, duly enacted by the proper authorities, prescribing general, uniform, and permanent rules of conduct, relating to the corporate affairs of the municipality."
In § 15.06 McQuillin says:
“The general rule is that where a charter commits the decision of a matter to the council or legislative body alone, and is silent as to the mode of its exercise, the decision may be evidenced by resolution.”
And, at § 1.5.02 McQuillin distinguishes resolutions and ordinances as follows:
“A ‘resolution’ is not an ‘ordinance,’ and there is a distinction between the two terms as they are commonly used in charters. A resolution ordinarily denotes something less solemn or formal than, or not rising to the dignity of, an ordinance. The term ‘ordinance’ means something more than a mere verbal motion or resolution, adopted, subsequently reduced to writing, and entered on the minutes and made a part of the record of the acting body. It must be invested, not necessarily literally, but substantially, with the formalities, solemnities, and characteristics of an ordinance, as distinguished from a simple motion or resolution.
A resolution in effect encompasses all actions of the municipal body other than ordinances. Whether the municipal body should do a particular thing by resolution or ordinance depends upon the forms to be observed in doing the thing and upon the proper construction of the charter. In this connection it may be observed that a resolution deals with matters of a special or temporary character; an ordinance prescribes some permanent rule of conduct or government, to continue in force until the ordinance is repealed. An ordinance is distinctively a legislative act; a resolution, generally speaking, is simply an expression of opinion or mind concerning some particular item of business coming within the legislative body’s official cognizance, ordinarily ministerial in character and relating to the administrative business of the municipality. Thus, it may be stated broadly that all acts that are done by a municipal corporation in its ministerial capacity and for a temporary purpose may be put in the form of resolutions, and that matters upon which the municipal corporation desires to legislate must be put in the form of ordinances.”
See also Charles S. Rhyne, Municipal Law, § 9, at p. 226.
Act 562 of 1953, Ark. Stat. Ann. §§ 19-4051 through 19-4060 (Repl. 1968), is the charter authority for the creation and function of the appellee commission in this case. Section 19-4051 provides that a city of the first class may, by the enactment of an ordinance, create a commission to operate, control and supervise such of its municipally owned light plants as may be prescribed by an ordinance and which are not already being operated by a commission created by or pursuant to valid special or local acts of the Arkansas Legislature.
Section 19-4053 authorizes the city council, by proper ordinance, to create a body consisting oí live members for the purpose of directing, managing and controlling the operation of the plants and directs the terms and manner of selecting the commissioners, and the manner for filling vacancies on the commission.
Section 19-4055 provides for the manner in which the board shall be organized and § 19-4056, pertaining to the powers of the board, reads as follows:
“Said board or boards created pursuant to the provisions of this act [§ 19-4051 — 19-4060) shall have the full power to operate and control the plant or plants entrusted to its direction by the city ordinance creating said board as provided in Section 1 [§ 19-4051] hereof and, subject to such restrictions as may be prescribed in the ordinance creating said board or boards, said board or boards shall have full power to buy and pay for out of the earnings or revenues of said plants for the welfare and benefit of the citizens and inhabitants of the Municipal Corporation, and may purchase and pay for out of the revenues derived from the operation of such power plants, all necessary equipment needed in the operation of such plants, for such lands as may be necessary and may also sell any property, real [or] personal, not necessary to be used in the operation of the plant or plants; but shall not sell or rent the right to own, use and operate the necessary equipment of such plant or plants.” (Our emphasis).
Section 19-4057 provides that subject to such restrictions or Imitations as may be imposed by municipal ordinances, the board or boards created pursuant to this act shall have plenary powers with reference to the selection, supervision and payment of compensation for all employees required in the operation of the plant provided:
“that nothing herein contained shall be construed to limit or impair the rights of the City Council to approve any rates or charges for electric, water or sewer service and provided further that any ordinance passed by the City Council may make additional provisions for the control and operation of Light, Water or Sewer Plants, may provide a limitation as to salaries or wages to be paid by said Board including salaries to be paid to members of said Board lor their services as members thereof.”
This section then provides that unless otherwise limited or authorized by city ordinances, the salaries to be paid to the members of the board should be $10 a month or $5 for each meeting, whichever shall be the lesser sum.
It will be noted that this Act does not expressly authorize the commission to fix rates to be charged for electric services as does a later act, Act 115 of 1957, Ark. Stat. Ann. § 19-4061 through 19-4082 (Repl. 1968), pertaining to the creation of commissions for the operation of waterworks and distribution systems or electrical plants and systems where the city had owned and been operating same for a period often years; but in the 1953 Act, under which the appellee commission was created, § 19-4058 of the statute provides as follows:
“Except as its powers may be limited by city ordinance, the board shall have the same rights and powers with reference to the nature, extent and performance of its duties and with reference to the employment of employees and other necessary assistants as is now provided by law with reference to the Boards of Commissioners of Municipal Improvement Districts.” (Our emphasis).
Of course, prior to the 1953 and 1957 Acts, cities of the first class were authorized to construct and operate plants and systems for the distribution of public utilities through boards of commissioners of municipal improvement districts and the powers of such commissioners, as referred to in § 19-4058, supra, are found in Ark. Stat. Ann. § 20-315 (Repl. 1968) as authorized by Act 242 of 1949, as follows:
“ * * * As long as the Commissioners continue to operate such water and electric light districts they shall make an annual report to the City or 1 own Council showing in detail all receipts and disbursements made by them; and as long as they continue such operation they shall have the right to fix the rates to be paid by consumers of water and electric light or power, and such rates shall be fixed as nearly as possible at amounts which will pay the bonds of the district [as they mature, so as to relieve the real property of the district] as far as possible from the burden of taxation therefor. From the rates fixed by the Board, any property owner may take an appeal to the circuit court of the county, which shall confirm or set aside said rates as it finds just, and if it sets aside rates fixed by the Board, it shall itself fix rates which will be reasonable and adequate for the purposes aforesaid.”
We are of the opinion that when the city council of West Memphis enacted the initiatory Ordinance No. 292 in 1954, as authorized by Act 562 of 1953, the commission was invested by the statute with such authority therein conferred, subject only to “such restrictions as may be prescribed in the ordinance creating the board,” as provided in § 19-4056, supra, and “except as its powers may be limited by city ordinances,” as provided in § 19-4058, supra. The only limitation placed upon the administrative duties and authority of the board by Ordinance No. 292 was that the municipal council reserved the right to approve and confirm the rate schedule and any changes therein by the commission.
The powers thus conferred upon the commission were derived directly from the Legislature and subject only to such restrictions the municipal council might impose by ordinance. The only restriction the city council saw fit to place on the commission was that in exercising its powers conferred by the Legislature, the commission do so with the “approval and confirmation” of the city council. The statute does not provide for or direct the manner in which the city council must approve and confirm the actions of the commission pertaining to rates or changes therein. In fact, the legislative Act does not require that the action of the commission in this area be approved or confirmed at all.
We are of the opinion, therefore, that the rights to approve and confirm thus reserved in Ordinance 292 pertained to the administrative functions of the commission under authority granted by the Legislature and the right to approve and confirm, as reserved in the ordinance, was simply a restriction placed on the administrative rights and duties of the commission as from time to time performed by it. We conclude that such approval and confirmation were legally expressed in this case by resolution and did not require the more solemn, formal and permanent form of a municipal ordinance.
The decree is affirmed.
Byrd, J., dissents. | [
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Donald L. Corbin, Justice.
Appellant Renate Hapney appeals stice. Arkansas Workers’ Compensation Commission denying her claim for benefits for a ruptured cervical disc from her employer, Appellee Rheem Manufacturing Company. The Commission found that Mrs. Hapney had failed to meet her burden of proof that she suffered a compensable injury. The Arkansas Court of Appeals affirmed the Commission’s decision, by a tie vote, in Hapney v. Rheem Mfg. Co., 67 Ark. App. 8, 992 S.W.2d 151 (1999). We granted Mrs. Hapney’s petition for review of that decision pursuant to Ark. Sup. Ct. R. l-2(e)(i). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999).
Standard of Review
In appeals involving claims for workers’ compensation, we view the evidence in a light most favorable to the Commission’s decision and affirm the decision if it is supported by substantial evidence. Id.; Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Williams v. Prostaff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). There may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Brower Mfc. Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. White, 339 Ark. 474, 6 S.W.3d 98.
Facts
The record reflects that Mrs. Hapney has been employed by Rheem since 1984, where she primarily worked as a press operator. On Friday, February 2, 1996, Mrs. Hapney was transferred to an assembly line and given new job duties that required her to attach two metal plates to air conditioning units. Specifically, these duties consisted of using an orr to line up the screw holes and then using a screw gun to place six screws in each unit. In order to complete her assigned task, Mrs. Hapney stated that she had to bend down six times and turn her heck a little when attaching the plates to each unit. Mrs. Hapney worked a nine-hour shift on that day and assembled a total of 316 units. According to her calculations, Mrs. Hapney would have bent down over 1,800 times that day.
Mrs. Hapney testified that while performing her job duties, her neck and right arm began to hurt, but that she was able to complete her shift. According to Mrs. Hapney, the pain progressively worsened, and eventually she was unable to move her head. She also reported experiencing numbness in her right arm. Mrs. Hapney reported to Dr. Carson, Rheem’s company doctor, on Monday February 5, 1996: Dr. Carson put her on restriction or light work, but then completely took her off work on February 13. Mrs. Hapney remained off work until September 3, 1996.
Mrs. Hapney was referred to the Holt Krock Clinic on February 15 where she was examined by Dr. William Sherrill. Dr. Sherrill ordered a cervical MRI on March 29, and it revealed disc herniation at C5-6 and some protrusion at C6-7 resulting in spinal stenosis. Thereafter, Dr. Sherrill arranged for Mrs. Hapney to see a neurosurgeon, Dr. Luis Cesar. Dr. Cesar recommended that Mrs. Hapney undergo an anterior cervical fusion at C5-6. In a letter dated October 11, 1996, Dr. Cesar reported that to the best of his knowledge the major cause of Mrs. Hapney’s problem was the February 2 injury. This opinion refuted Dr. Cesar’s earlier opinion that Mrs. Hapney’s disability may have been related to a previous shoulder injury sustained on April 19, 1993.
Mrs. Hapney admitted that she had previously suffered an injury in April 1993, which resulted in shoulder surgery, and that she had experienced neck pain on occasion ever since. She further stated, however, that the pain she began experiencing on February 2 was different and more severe than any other pain she had previ ously experienced. Moreover, none of Mrs. Hapney’s medical records from the 1993 injury indicate that she suffered from any problems with her cervical spine.
A hearing was held before an administrative law judge (ALJ) on October 29, 1996. In a January 31, 1997 opinion, the ALJ found that Mrs. Hapney had proven that her neck injury was compensable under the gradual-onset exception for both rapid repetitive motion injuries and back injuries, as codified at Ark. Code Ann. § 11 —9— 102(4)(A)(ii)(a) or (b) (Supp. 1999). Rheem appealed the ALJ’s decision to the Commission.
After conducting a de novo review of the entire record, the Commission concluded that Mrs. Hapney had failed to prove that she sustained a compensable injury because the gradual-onset exception for back injuries does not extend to injuries of the cervical spine. The Commission found, however, that the rapid repetitive motion exception is applicable to cervical injuries, but ultimately determined that Mrs. Hapney failed to meet her burden of proof under this exception. Specifically, the Commission opined that while Mrs. Hapney was required to perform her movements every 1.89 minutes, this was not a sufficiently high rate of speed to satisfy the rapid requirement. Finally, the Commission found that Mrs. Hapney had also failed to prove that she sustained a specific incident injury, identifiable by time and place. Mrs. Hapney now appeals this order.
Injury to Cervical Spine
For her first point on appeal, Mrs. Hapney argues that the Commission erred in determining that the gradual-onset exception for back injuries as set forth in section 11-9-102(4) (A) (ii) (b) does not apply to the injury she suffered to her cervical spine. Under this provision, “compensable injury” means:
(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:
(b) A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence [.]
The term “back injury” is not defined. Mrs. Hapney argues that it would be absurd to limit the meaning of back as found in the statutory provision to only the lower part of the spine. On the other hand, Rheem argues that if the legislature had intended injuries such as Mrs. Hapney’s to be compensable under this exception, then they would have made reference to injuries to the spine or would have included a provision for neck injuries in the statute.
The issue before us is one of statutory construction. We note at the outset that the term “back injury” as stated in section ll-9-102(4)(A)(ii)(b) is ambiguous and requires us to resort to the tools of statutory construction. A cardinal rule of statutory construction is to give effect to the intent of the legislature. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998); Citizens to Establish a Reform Party v. Priest, 325 Ark. 257, 926 S.W.2d 432 (1996). In considering the meaning of a statute, we consider it just as it reads, giving the words their ordinary and usually accepted meaning. Nelson v. Timberline Int’l, Inc., 332 Ark. 165, 964 S.W.2d 357 (1998). In ascertaining legislative intent, this court may examine statutory history as well as conditions contemporaneous with the time of the enactment, the consequences of interpretation, and all other matters of common knowledge within this court’s, and in this case the Commission’s, jurisdiction. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998); Priest, 325 Ark. 257, 926 S.W.2d 432.
This court recognizes its duty to stricdy construe workers’ compensation statutes pursuant to Ark. Code Ann. § 11 — 9— 704(c)(3) (Repl. 1996). See Lawhon Farm Servs., 335 Ark. 272, 984 S.W.2d 1. Strict construction means narrow construction and requires that nothing be taken as intended that is not clearly expressed. Id., citing Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993). The doctrine of strict construction requires this court to use the plain meaning of the language employed. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). Even in light of this strict construction requirement, we believe that the Commission erred in excluding an injury to the cervical spine from the gradual-onset exception for back injuries.
Critical to our determination is the fact that pursuant to Ark. Code Ann. § 11-9-519 (Supp. 1999), the Commission has adopted the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993) to be used in the assessment of anatomical impairments. A review of the Guides reveals that in assessing impairments, there is no specific set of guidelines for back injuries. Instead, the Guides addresses such impairments in the context of the spine. In describing the musculoskeletal system, the Guides states that the upper extremity, the lower extremity, the spine, and the pelvis are each to be considered a unit of the whole person. The Guides goes on to state that the spine normally consists of twenty-four vertebrae. The cervical region has seven vertebrae, Cl through C7; the thoracic region has twelve vertebrae, T1 through T12; and the lumbar region has five vertebrae, LI through L5. While Appellee attempts to distinguish this case by arguing that the “neck” and “back” are two different units under common parlance, such an argument ignores the fact that the Commission is not to consider impairments in terms of common parlance, but rather based on the factors enumerated in the Guides. The Guides does not treat impairments in terms of neck and back injuries, but rather as injuries to the spine. It is important to note that while Mrs. Hapney referred to her pain in terms of neck pain, the medical evidence submitted in this case diagnosed Mrs. Hapney in terms of an injury to her cervical spine, not her neck.
A review of both general and medical dictionaries further reveals that the terms “back,” “spine,” and “neck” are commonly used interchangeably. Webster’s New World Dictionary 99 (3d College Ed. 1988) defines back in relevant part as:
1. the part of the body opposite to the front; in humans and many other animals, the part to the rear or top reaching from the nape of the neck to the end of the spine.
2. the backbone or spine.
“Neck” is defined as “that part of a human or animal joining the head to the body, including the part of the backbone between the skull and the shoulders.” Id. at 906. Finally, “spine” is defined as “the spinal column; backbone.” Id. at 1292. The Sloane-Dorland Annotated Medical-Legal Dictionary 74 (1987) defines “back” as “the posterior part of the trunk from the neck to the pelvis; called also dorsum. See also spine; and vertebra.” Clearly, these definitions indicate that the back encompasses that region of the body beginning at the neck.
Finally, at least one other jurisdiction has addressed a similar issue. In Newberg v. Thomas Indus., 852 S.W.2d 339 (Ky. App. 1993), the Kentucky Court of Appeals, in reviewing a workers’ compensation claim, held that the cervical vertebrae are part of the worker’s back. There, as here, an argument was made that there was a popular and common distinction between “back” and “neck.” The court rejected this argument, pointing out that the legislature had adopted the Guides, which states that the back may be divided into three regions: the cervical, dorsal, and lumbar regions. Id. at 340, 341. In a footnote to its opinion, the court noted that the Guides had been revised, but concluded that such revision did not change the court’s analysis of compensability.
Based on the foregoing, we cannot say that fair-minded persons would reach the same conclusion as the Commission that the gradual-onset exception for back injuries does not encompass injuries to the cervical spine. Thus, we reverse and remand this matter to the Commission to determine whether Mrs. Hapney has met her burden of proof with regard to the other elements of compensability set forth in section 11-9-102. Having reached this conclusion, we need not address the remaining points on appeal.
Reversed and remanded.
Glaze and Brown, JJ., dissent.
At the time this case was before the Commission and the court of appeals, this statute was codified at Ark. Code Ann. § ll-9-102(5)(A) (Repl. 1966).
As previously pointed out, an MR.I revealed that Mrs. Hapney suffered from disc herniation at C5-6 and some protrusion at C6-7 resulting in spinal stenosis. | [
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Carleton Harris, Chief Justice.
On August 17, 1948, the City Council of Forrest City passed Ordinance No. 611, entitled, “An Ordinance fixing the time for the filing of referendum petitions as provided for by Amendment No. 7 to the Constitution of the State of Arkansas, and for regulating the procedure thereon.” Pertinent provisions of the Ordinance read as follows:
“SECTION 1. All referendum petitions under Amendment No. 7 to the Constitution of the State of Arkansas must be filed with the City Clerk within thirty days after the passage of the measure upon which the referendum is sought. ***
“SECTION 3. If the City Council finds that such petition is signed by the requisite number of petitioners, it shall order a special election to determine by a vote of the qualified electors whether the ordinance shall stand or be revoked. The date for such election shall be not less than ten days after the order therefor has been made by the Council, and said election shall be had and conducted as general municipal elections held in the City of Forrest City.”
Further provisions require that any ordinance referred to the people and defeated shall be expunged from City Council records. An emergency clause is also attached.
On October 4, 1949, the City Council passed Ordinance No. 634, entitled, “An Ordinance to create a Board of Civil Service Commissioners of the City of Forrest City, Arkansas, to prescribe the manner of conducting trials by the Civil Service Commission, providing a right of appeal, and for other purposes.”
On January 7, 1975, the Council again passed an ordinance, being Ordinance No. 1340, entitled, “An Ordinance to repeal the Civil Service Commission; to provide for appointment of the Chief of Police and Fire Chief, to provide redress of grievances; and for other purposes.”
Appellant, Harley B. Lewis, Secretary of the Civil Ser vice Commission of Forrest City, along with other qualified electors of the City, prepared, circulated, and filed a petition protesting the passage of the Ordinance and petitioning that the Ordinance be referred to the electors of the City as provided by law. This petition was filed with the City Clerk on January 20, 1975, who found that the petition was sufficient, a requisite number of petitioners having signed, for referral. Thereafter, at its regularly scheduled meeting on February 4, 1975, the Council, recognizing the sufficiency of the petitions, passed Resolution No. 321, referring Ordinance No. 1340 to the next regular general election to be held on November 2, 1976.
Thereafter, Lewis, as Secretary of the Civil Service Commission, instituted suit in the Circuit Court of St. Francis County, seeking a writ of mandamus, and following a show cause order to the Council, a hearing was conducted on February 27, 1975, and the court entered its order dismissing the complaint with prejudice. From this judgment, appellant brings this appeal. For reversal, two points are relied upon to the effect that the court erred in holding that a writ of mandamus will not issue under the circumstances, and that the court erred in sustaining the appellee’s arbitrary, capricious, and unreasonable application of the intent and purpose of Amendment No. 7 to the Constitution of the State of Arkansas by setting the election date twenty-one months from the date of the order. Since these are related points, we discuss them together.
Ordinance No. 1340 first repeals Ordinance No. 634, which sets up the Civil Service Commission and thereafter provides that the Chief of Police and Fire Chief shall be appointed by the Mayor, subject to approval by the City Council, and that these police and fire officials, respectively, have sole authority to establish ranks within the departments, and hire and fire personnel therein; that any person aggrieved shall have the right to request a hearing before the City Council, whereupon the Council shall forthwith set a hearing upon said matter at a subsequent meeting of the Council.
In dismissing the complaint, the trial court made, inter alia, the following findings:
“6. That Amendment No. 7 of the Constitution of the State of Arkansas provides that if the referendum power is invoked as to any measure passed by a city or town council, such city or town council may order election upon said referendum at either regular or special election; that Ordinance No. 611 of the City of Forrest City provides that the date for such election be not less than ten (10) days after the order therefor has been made by the council; and the order therefor in this case has been made by the Council for a special date more than ten days after such order.
“7. That the specific date for setting of such election is a matter of legislative discretion, which has been exercised by the City Council in this case; a Writ of Mandamus will not issue to control a public officer or legislative body in a discretionary act.”
Pertinent provisions of Amendment No. 7 provide:
“Municipalities may provide for the exercise of the initiative and referendum as to their local legislation. ***
“All measures initiated by the people, whether for the State, county, city or town, shall be submitted only at the regular elections, either State, congressional or municipal, but referendum petitions may be referred to the people at special elections to be called by the proper official, and such special elections shall be called when fifteen per cent of the legal voters shall petition for such special election, and if the referendum is invoked as to any measure passed by a city or town council, such city or town council may order a special élection.”
We are of the opinion that the court erred in not granting the petition for writ of mandamus. It is very true, as pointed out by the learned circuit judge, that the matter of setting a date for the election is normally a matter of legislative discretion — but only to a degree. In the present instance, it would appear that the date set would, in effect, nullify the intent of Amendment No. 7, and the intent of Or dinance No. 611, which was passed by the Council, pursuant to the provisions of Amendment No. 7.
Appellees depend upon the fact that Ordinance No. 611, though providing that a special election shall not be less than ten days after the order therefor has been made by the Council, makes no requirement that such election shall be set at any particular time thereafter. This is true, but we are confident that the electors, in passing Amendment No. 7, had in mind that controversial legislation should be acted upon by the voters within a reasonable time. In the case of Cochran, Mayor v. Black, 240 Ark. 393, 400 S.W. 2d 280, this court succinctly stated our views on Amendment No. 7, as follows:
“We are firmly committed to a liberal construction of constitutional Amendment No. 7, bearing in mind the purpose of its adoption and the object it sought to accomplish. This amendment provides a necessary and potent protection against ill-advised, oppressive or improvident legislative functions, and actions of the electors thereunder, in attempting to obtain relief, should not be thwarted by strict or technical construction. [Our emphasis.] We are neither authorized nor remotely inclined to disturb the proper application of this wholesome constitutional reservation of power to the people.”
Here, to say that the Council acted properly in setting the referendum election twenty-one months after the request for a referendum, would be to say that the Council could thwart, by strict or technical construction of Amendment No. 7, the relief sought by appellants. Actually, if the Council has the authority to set an election twenty-one months away (which technically speaking, might be true), it has the authority to set such election three or more years away. Can it really be said that the date set by the Council is within the spirit of the framers of Amendment No. 7? Was it not their intent to provide a remedy for dissatisfied citizens within an appropriate time period? We think these questions can only be answered in the affirmative, but the action of the City Council does not afford affirmative relief._
Let it be borne in mind that Ordinance No. 611, passed back in 1948, was still in effect at the time the petitions were circulated, and certainly appellants had every right to rely on that Ordinance in seeking a referendum. Appellees argue that the City Council had full authority to repeal Ordinance No. 611 and though they say it was complied with, it is also implied in their brief that this Ordinance may well have been repealed by Resolution No. 321 which set the referendum election at the time of the next general election on November 2, 1976. Such an argument can be of no aid to appellees for several reasons, but one reason is amply sufficient. The Resolution was not even passed until after appellants, in reliance upon Ordinance No. 611, had filed their petition. In other words, when the petition was filed, unquestionably Ordinance No. 611 was the pertinent law to follow. Certainly, when one is acting in good faith in following the current city statute, he is not to be penalized. For that matter, the trial court recognized the validity of the Ordinance which is reflected from the court’s findings, already quoted. And, it will be observed that the decision was rendered on the basis of the fact that the Council set the election more than ten days after its order (as provided by 611), and the matter of setting the date (in the trial court’s opinion) was a matter of legislative discretion.
The principal argument advanced by appellees is that mandamus will not lie to control a public official in a discretionary act. However, as already pointed out, such discretion is not unlimited, and cannot be used to, in effect, do away with the right granted by Amendment No. 7. This court so held in the case of Kirkwood v. Carter, County Judge, 252 Ark. 1124, 482 S.W. 2d 608, where we said that'the purpose of a writ of mandamus is not to establish legal rights or measure the discretion of public officials, but to enforce a right after it is already established, or to enforce the performance of a duty. There, the question concerned the duty of the County Board of Election Commissioners to determine the number of voting precincts in the county where as many as 300 votes were cast, and to start and continue good faith negotiations for the purchase of voting machines. We said:
“It is definitely suggested by the overall record in this case, that the Faulkner County Board of Election Commissioners simply did not agree with the electorate of Faulkner County as to the wisdom of spending tax money for voting machines. The record indicates that instead of "proceeding in an orderly and businesslike manner toward finding ways and means of carrying out the duties of their office under the law and the mandate of the people, the Commissioners did just the opposite by seeking ways and means of avoiding the performances of their duties under Act 465 and under the mandate of the people of Faulkner County. ***
The trial court simply ordered the members of the Board of Election Commissioners to initiate and file a plan to purchase or lease-purchase voting machines and showing the number of voting machines to be purchased or lease-purchased. There were no duties to be performed by the county judge in connection with the purchase of the voting machines when the petition for the writ of mandamus was filed in this case, and the hearing was conducted thereon, so the trial court was correct in sustaining the demurrer. We are of the opinion that the trial court’s order directing the members of the Board of Election Commissioners to initiate and file a plan for the purchase of voting machines means, and should have recited, that they shall do so forthwith.” [Our emphasis.]
We held the writ proper but added that the Commissioners [should] “start the performance of their duties thereunder forthwith, and continue such performance in good faith until their statutory duties are fully performed.”
It is apparent that in Kirkwood this court considered that the Board was “dragging its feet” and that it was seeking ways and means of avoiding performance of its duties. The setting of a date for the referendum twenty-one months away is so unusual as to suggest that the Council simply desired to delay a vote by the people on the question of whether the Forrest City Civil Service Commission should be abolished. It is our view that the affirmance of this judgment would completely frustrate the intent of the people in passing Amend ment No. 7, as it applies to referendums. Our statement in Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W. 2d 350 (1975), is here entirely apropos, “Statutes enacted for the public benefit should be interpreted most favorably to the public.”
For the reasons herein set forth, the judgment is reversed and the cause remanded with directions to the St. Francis County Circuit Court (First Judicial Circuit) to issue its writ directing the City Council of Forrest City to set the referendum election, involved herein, within a reasonably prompt period of time.
It is so ordered.
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J. Fred Jones, Justice.
This is an appeal by Ferd Hand from a declaratory judgment holding that Ark. Stat. Ann. § 70-802 (Supp. 1973) did not apply to a franchise existing between Hand and the appellee H & R Block, Inc. and, consequently, it was not necessary to pass on the constitutionality of § 70-802. The appellant urges three points on which he relies for reversal designated as follows:
“The lower court erred in holding section 70-802 inapplicable to the subject franchise agreement because the plain meaning of the language of the statute requires it to apply to the subject franchise agreement.
The lower court erred in holding section 70-802 inapplicable to the subject franchise agreement because a construction of the statute in light of the legislative intent requires it to apply to the subject franchise agreement.
The lower court erred in holding section 70-802 inapplicable to the subject franchise agreement because such construction circumvents the social benefit sought to be achieved by the statute.”
The facts in this case appear as follows: On August 13, 1969, H & R Block, Inc. entered into a franchise agreement with a Mr. Whitaker of Fort Smith, Arkansas, whereby H & R Block granted to Whitaker a franchise to use the service mark and trade name “H & R Block” in Paris, Arkansas, for a period of five years in connection with Whitaker’s business of preparing income tax returns for the general public. This franchise agreement was for a period of five years with option to renew. On August 13, 1970, with the consent of H & R Block, Whitaker assigned his rights under the franchise agreement to the appellant Ferd Hand and one Jim Randall. In 1971 the Arkansas General Assembly enacted Act 252 which made it unlawful for a franchisor to charge an Arkansas franchisee a royalty fee greater than the lowest royalty fee charged franchisees in other states. In 1973 the General Assembly amended § 2 of the 1971 Act with the pertinent provision of the Act, as amended, (Ark. Stat. Ann. § 70-802 [Supp. 1973]) reading as follows:
“After the effective date [January 30, 1973] of this Act, in granting a new franchise for use of a service mark, trade mark or trade name in Arkansas, it shall be unlawful for a franchisor to charge a franchisee a royalty fee which is greater than that which the franchisor customarily charges other franchisees in the United States for similar new franchises granted contemporaneously. ”
On September 21, 1973, H & R Block entered into a separate agreement designated “Major Franchise Agreement” with James W. Randall and the appellant Ferd Hand, whereby Hand and Randall were given the exclusive right in the same Paris, Arkansas, area formerly awarded to Whitaker, to use the name “H & R Block” and the service marks “The Income Tax People,” “America’s Largest Tax Service,” “Executive Tax Service,” “Nation’s Largest Tax Service” and any other name or service marks that may be adopted by Block or registered by Block.
On September 31, 1974, H & R Block filed its complaint praying a declaratory judgment under Ark. Stat. Ann. §§ 34-2501 — 34-2512 (Repl. 1962) to obtain a declaration of the rights and “other legal relations” including a declaratory judgment as to the constitutionality of § 2 of Act 252 of the 1971 General Assembly as amended by Act 21 of 1973, § 70-802, supra. The prayer of the complaint was as follows:
“[PJlaintiff respectfully prays for a judgment declaring that Section 2 of Act 252 of the 1971 Arkansas General Assembly, as amended, does not apply to the agreement dated September 21, 1973 (Exhibit 3), or in the alternative declaring Section 2 of Act 252 of the 1971 Arkan sas General Assembly, as amended, to be unconstitutional. ...”
The judgment of the trial court recites in part as follows:
“6. the relationship existing between the plaintiff, as franchisor, and the defendant and James W. Randall, as franchisees, under the agreement dated August 13, 1969, and the assignment dated August 13, 1970, did not become a ‘new franchise’ by virtue of the agreement dated September 21, 1973 (Exhibit 3 to the Complaint), within the meaning of the term ‘new franchise’ in § 70-802;
7. the acts of the plaintiff in executing and entering into the agreement dated September 21, 1973 (Exhibit 3 to the Complaint), did not constitute ‘granting a new franchise’ within the meaning of the terms ‘granting a new franchise’ in § 70-802 of 1973;
9. this Court does not imply the assignments will always be treated as this assignment has been treated, however, restricted to the facts of this case, Section 70-802 does not apply to the franchise set forth and described in the agreement dated September 21, 1973 (Exhibit 3 to the Complaint), as the Court construes it as being an amendment or modification of an existing franchise involving substantially the same parties and the same territory, with no additional fee being charged.
10. Inasmuch as the Court has found and concluded that § 70-802 does not apply to the franchise existing between the parties, it is not necessary to determine the constitutionality of § 70-802.
In accordance with the foregoing findings of fact and conclusions of law IT IS THEREFORE ORDERED, ADJUDGED AND DECLARED that Act 21 of 1973 (Ark. Stats. Ann. § 70-802 [Supp. 1973]) does not apply to the franchise between the parties which is set forth and described in the agreement dated September 21, 1973, (Exhibit 3 to the Complaint).”
Block successfully argued before the trial court, and unsuccessfully argues here, that the so-called “Major Franchise Agreement” between Block and the appellant dated September 21, 1973, was only an extension of the franchise to Whitaker dated August 13, 1969, and subsequently transferred to the appellant Hand. It is agreed that the agreement entered into on September 21, 1973, was in violation of § 2 of Act 252 in that the franchise royalty fee charged was greater than the lowest royalty fee charged in other states; but, Block argues that since the “Major Franchise Agreement” of September 21, 1973, was only an extension of the August 13, 1969, franchise agreement, neither agreement was affected by the subsequent amendment to the Act which became effective January 30, 1973. The trial court agreed with the appellee Block on this point but we do not.
Ark. Stat. Ann. § 70-801 (a) (Supp. 1973) provides as follows:
“ ‘Franchise’ shall mean every aspect of the relationship created between a franchisor and franchisee by an ora! or written agreement or understanding or series of agreements, understandings, or transactions which involve or result in a continuing commercial relationship by which a franchisee is granted or permitted to offer, sell or distribute the goods or commodities manufactured, processed or distributed by the franchisor or to use a service mark, trade mark or trade name owned by the franchisor.”
In reaching its decision that the “Major Franchise Agreement” of September 21, 1973, did not constitute the “granting a new franchise” within the meaning of the term “granting a new franchise” in § 70-802, supra, the trial court pointed out that the “Major Franchise Agreement” of 1973 involved substantially the same parties and the same territory and that no additional fee was charged. We do not so construe the September, 1973, agreement. The August, 1969, franchise agreement was between Block as franchisor and J. O. Whitaker of Fort Smith, Arkansas, as franchisee. The September 21, 1973, agreement was between Block as franchisor and Ferd Hand and James Randall of 4310 Cen tral Avenue, Hot Springs, Arkansas, as franchisees. The “Major Franchise Agreement” contains other pertinent differences including a “Cancellation of Prior Understandings” provision as follows:
“This Agreement expresses fully the understanding by and between the parties hereto and all prior understandings, or commitments of any kind, oral or written, as to this franchise and any matter covered by this Agreement are hereby superseded and cancelled, with no further liabilities or obligations of the parties with respect thereto except as to any monies due and unpaid between the parties to this Agreement at the time of the execution of this Agreement.”
The agreement also contains a “Release of Prior Claims” provision as follows:
“By executing this Agreement, Franchisee, individually and on behalf of Franchisee’s heirs, legal representatives, successors and assigns, and each assignee of this Agreement by accepting assignment of the same, hereby forever releases and discharges Block, its officers, directors, employees, agents and servants, including Block’s subsidiary and affiliated corporations, their respective officers, directors, employees, agents and servants, from any and all claims relating to or arising under any franchise agreement or agreements between the parties and executed prior to August 31, 1973, including but not limited to any and all claims, whether presently known or unknown, suspected or unsuspected, arising under the antitrust laws of the United States or of any State.”
The appellee attempts to classify a “franchise” as defined in § 70-802 as something more than a contract or agreement and argues in effect that a franchise which once comes into being remains the same franchise regardless of subsequent agreements. We are of the opinion and so hold that the “Major Franchise Agreement” entered into on September 21, 1973, constituted a “new franchise” within the meaning of the statute. This conclusion brings us to the alternative question presented on this appeal of whether § 2 of Act 252 is unconstitutional and we are of the opinion that it is.
In Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634 (1973), we announced certain basic principles which must be kept in mind when determining the constitutionality of an Act of the Legislature and we set out those principles as follows:
“The first of these is that the legislature’s power is limited only by the state and federal constitutions. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85; Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279; McArthur v. Smallwood, 225 Ark. 328, 281 S.W. 2d 428; Gipson v. Ingram, 215 Ark. 812, 223 S.W. 2d 595. The next is that a presumption of constitutionality attends every such act. Redding v. State, 254 Ark. 317, 493 S.W. 2d 116; Bush v. Martineau, 174 Ark. 214, 295 S.W. 9. All doubt must be resolved in favor of constitutionality. Redding v. State, supra; Busk v. Martineau, supra. Another principle is that if it is possible for the courts to so construe an act that it will meet the test of constitutionality, they not only may, but should and will, do so. Davis v. Schimmel, 252 Ark. 1201, 482 S.W. 2d 785; McLeod v. Santa Fe Transportation Co., 205 Ark. 225, 168 S.W. 2d 413. Another way of stating this elementary rule is that every reasonable construction must be resorted to in order to save the statute from unconstitutionality. Bush v. Martineau, supra. See also Redding v. State, supra.”
The basis for the challenge to the statute, § 70-802, supra, is that it effects a deprivation of property rights without due process of law, contrary to the Fourteenth Amendment of the Constitution of the United States. Block argues that the right of the owner to fix a price at which his property shall be sold or used is an inherent attribute of the property itself, and, as such, within the protection of the due process of law clauses of the Fifth and Fourteenth Amendments, and cites Tyson & Brother v. Banton, 273 U.S. 418 (1927), in support of this contention. The Tyson case involved a New York statute which attempted to limit the price ticket brokers could charge over and above the price printed on amusement tickets and the Supreme Court did hold in Tyson as Block now argues. Ap parently, however, the public interest became more pronounced in the sale and distribution of amusement tickets in New York during the intervening years between the Tyson decision in 1927 and 1964, because in the 1964 case of Gold v. Dicarlo, 235 F. Supp. 817 (S.D.N.Y. 1964), Tyson was overruled and the court held that a New York statute which set the maximum price for which brokers could sell tickets to amusements was not a denial of property rights without due process, and that decision was affirmed by the United States Supreme Court, 380 U.S. 520 (1965). It was noted in Gold v. Dicarlo that abuse existed in the resale of tickets and that the public interest required state control.
As a general rule, it is well settled that the state may regulate private property rights or contract rights through a valid exercise of its police power, including the regulation of prices. Nebbia v. New York, 291 U.S. 502 (1934). In Goldblatt v. Hempstead, 369 U.S. 590 (1962), the United States Supreme Court upheld the validity of an ordinance which regulated a sand and gravel business. In that case, in connection with the police power, the court said:
“The term ‘police power’ connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard ‘reasonableness,’ this Court has generally refrained from announcing any specific criteria. The classic statement of the rule in Lawton v. Steele, 152 U.S. 133, 137 (1894), is still valid today:
‘To justify the State in . . . interposing its authority in behalf of the public, it must appear, first, that the interests of the public . . . require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.’ ”
The validity of Block’s property rights in its name here involved is not questioned. So the issue, as we see it in the case at bar, is whether § 70-802 is within the valid exercise of police power. Specifically, does the interest of the public require the interference with the franchisor’s and the franchisee’s right to contractually set their own price? In Willys Motors v. Northwest Kaiser-Willys, 142 F. Supp. 469 (D. Minn. 1956), in upholding a state law which prohibited the cancellation of a franchise agreement without just cause, the court said:
“That the economic interests of a state may justify the exercise of its protective power notwithstanding interference with contracts is a proposition now well established. See Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. at page 531, 69 S. Ct. 251.
There is one important proviso which must be met before legislation which impairs contractual obligations can be upheld; that is, the legislation in question must be enacted for a public, as contrasted with a private, purpose. See Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 438 S. Ct. 231, 78 L. Ed. 413; Worthen Co. v. Thomas, 292 U.S. 426, 431, 432, 54 S. Ct. 816, 78 L. Ed. 1344; Worthen Co. ex rel. Board of Com’rs, etc. v. Kavanaugh, 295 U.S. 56, 60, 55 S. Ct. 555, 79 L. Ed. 1298; Western States Utilities Co. v. City of Waseca, 242 Minn. 302, 65 N.W. 2d 255; compare Veix v. Sixth Ward Building & Loan Ass’n, supra, with Treigle v. Acme Homestead Ass’n, 297 U.S. 189, 56 S. Ct. 408, 80 L. Ed. 575.”
In State v. Hurlock, 185 Ark. 807, 49 S.W. 2d 611 (1932), in upholding the constitutionality of an act requiring the licensing of real estate brokers, this court said:
“It is true that the police power can only be exercised to suppress, restrain, or regulate the liberty of individual action, when such action is injurious to the public welfare.”
In Ark. State Hwy. Comm’n v. Ark. Power & Light Co., 231 Ark. 307, 330 S.W. 2d 77 (1959), in forbidding the Highway Commission from requiring the power company to move some of its poles for public use without just compensation, we said:
“The police power should not be indiscriminately or un* necessarily used. In Beaty v. Humphrey, 195 Ark. 1008, 115 S.W. 2d 559, this court said: ‘The police power of the State is one founded in public necessity, and this necessity must exist in order to justify its exercise.’
No case has been cited to us, and our own research has revealed none, wherein the police power of a state has been used to regulate the price to be agreed upon by contracting parties solely for the benefit of one of the parties. In every instance of such regulation under the police powers, it appears justified only because some broad public interest required it. In the landmark case of Nebbia v. New York, supra, the Supreme Court of the United States for the first time held a state price “fixing” law not in violation of due process. The statute involved in that case established a maximum and minimum price for the retail sale of milk in New York. The court sustained the invocation of the police power because of the significance of the industry to the public health, welfare and interest involved, saying:
“The production and distribution of milk is a paramount industry of the state, and largely affects the health and prosperity of its people. Dairying yields fully one-half of the total income from all farm products. Dairy farm investment amounts to approximately $1,-000,000,000. Curtailment or destruction of the dairy industry would cause a serious economic loss to the people of the state.”
There are many other federal court decisions and decisions from other states, both pro and con, as to the validity of statutes enacted under the police power but they all turn on the particular statute as related to the facts of the particular case, and the extent to which the public interest, peace, health or welfare were involved, was the final deciding factor in all of them.
The valid exercise of police power in price regulation and control has been upheld and approved by this court when a broad public interest is protected. In Concrete, Inc. v. Arkhola Sand & Gravel Co., 230 Ark. 315, 322 S.W. 2d 452 (1959), the Arkansas Unfair Practices Act, which made it un lawful for one engaged in the distribution of a commodity of general use or consumption to discriminate between different sections, communities or cities or portions thereof, with intent to destroy competition, by selling at a lower rate in one such section than in another, was upheld, and in that case we said:
“The appellee’s assumption that this is a price fixing statute is erroneous. Dunnell v. Shelley, 38 Cal. App. 2d 118, 100 P. 2d 830. The purpose of the Act, as stated in Ark. Stat. § 70-313, is to safeguard against the creation or perpetuation of monopolies and to foster and encourage competition by prohibiting unfair and discriminatory practices by which fair and honest competition is destroyed or prevented. We think the means adopted are reasonable and appropriate to promote the purposes mentioned.”
Although in Concrete, Inc, supra, we cited the purpose of the Act as stated therein, scienter was mentioned in the Act, and the public interest was to prevent monopolies by stifling and eradicating competition by prolonged and ruinous price wars. In the case of Gipson v. Morley, Comm’r of Revenues, 217 Ark. 560, 233 S.W. 2d 79 (1950), a statute controlling the minimum prices of intoxicating liquors was upheld. In that case Justice Lefiar, speaking for the majority, said:
“[T]he courts of Arkansas, like those of all American states, have sustained these monopolistic grants of special privilege on the ground that it is within the competency of the legislature to determine under the police power what regulatory rules are needful in controlling a type of business fraught with perils to public peace, health and safety as is the liquor business.”
The purpose of the statute challenged in the case at bar is set out in the emergency clause, Section 8 of the original Act 252 of 1971 as follows:
“It is found by the General Assembly that franchisors as described in the Act for adequate fees, have licensed Arkansas corporations and citizens to use their trade names and formulae; that in some instances the licensing agreements contain provisions requiring such franchisees to pay a greater royalty for the use of a trade name than is charged to franchisees doing business under the same trade name in other states, and that in some instances, franchisors collect advertising fees from franchisees which are not expended for advertising purposes; and that only by the immediate passage of this Act can this situation be remedied. Therefore, an emergency is hereby declared to exist and this Act, being necessary for the preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”
We consider the case at bar more in point with Noble v. Davis, 204 Ark. 156, 161 S.W. 2d 189, and Union Carbide and Carbon Corp. v. White River Distributors, Inc., 224 Ark. 558, 275 S.W. 2d 455. In Union Carbide the manufacturer of Prestone antifreeze attempted to control the price for which it was to be sold in Arkansas under a provision of Act 92 of 1937, the so-called “Arkansas Fair Trade Act.” We held the provision unconstitutional as outside the police powers of the state and followed our reasoning in Noble v. Davis, supra. Consequently, we shall not review the Union Carbide decision further since our reasoning in Noble v. Davis so nearly coincides with our reasoning in the case at bar. In Noble the constitutionality of Act 432 of 1941 authorizing the state board of barber examiners to fix a minimum price for barber services was involved. In that case we refused to follow Nebbia v. New York, supra, and its progeny since the price regulation under Act 432 was outside the police power of the state. We quote at length from Noble since it sets out our reasoning in that case and also in the case at bar. In Noble we said:
“That portion of § 1 of said Act 432, above quoted, where the Legislature declared that the purpose of the act is the protection of the public health, safety, etc., is the declaration of a non-existent fact. The fact that the Legislature so declared the purpose of the act does not make it so, if, in fact, the declared purpose has no substantial connection with the real purpose of the act. The real and only purposes of the act were to confer power on appellants to establish (1) minimum price schedules for barbers; (2) minimum commissions to be paid to barbers for their services; and (3) opening and closing hours for barber shops. Now just what connection these three purposes have with the ‘protection of the public safety, health, welfare and general prosperity,’ or with either of them is difficult to perceive. How can the price a barber charges for a haircut or shave, or the commission the owner pays the barbers, or the hour the shop opens or closes affect the public safety, health, welfare or prosperity? Such connection is visionary and not real. In line with what we have just said, Am. Jur., vol. 11, p. 1077, it is said: ‘The mere assertion by the Legislature that a statute relates to the public health, safety, or welfare does not in itself bring that statute, within the police power of a state, for there must always be an obvious and real connection between the actual provisions of the police regulations and its avowed purpose and the regulation adopted must be reasonably adapted to accomplish the end sought to be attained. A statute or ordinance which has no real, substantial, or rational relation to the public safety, health, moral or general welfare is a palpable invasion of rights secured by fundamental law and cannot be sustained as a legitimate exercise of the police power. One application of the familiar rule that the validity of an act is to be determined by its practical operation and effect and not by its title or declared purpose, is that a constitutional right cannot be abridged by legislation under the guise of police regulations. The exercise of the power must have a substantial basis and cannot be made a mere pretext for legislation that does not fall within it. The Legislature has no power, under the guise of police regulations, arbitrarily to invade the personal rights and liberty of the individual citizen, to interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations, or to invade property rights.’ ”
The above language in Noble is applicable to § 2 of Act 252 of 1971 as amended, Ark. Stat. Ann. § 70-802, in the case at bar. It must be remembered that § 70-802 is not confined to the franchises sold by the appellee Block but the statute applies to all new franchises for use of a service mark, trade mark or trade name in Arkansas. The statute applies to motel and quick food business as well as the income tax and other businesses. We can only construe the statute as an attempt to insure to Arkansas franchisees a minimum price for a franchise. As we interpret § 70-802, it simply attempts to insure to Arkansas businessmen who purchase a franchise for the use of a service mark, trade mark or trade name, that they shall receive such franchise at the lowest price in the nation without relation to the public safety, health, moral or general welfare. Consequently, we hold that Section 2 of Act 252 of 1971 as amended, Ark. Stat. Ann. § 70-802 (Supp. 1973), is unconstitutional.
The judgment of the trial court is, therefore, affirmed.
Fogleman, J., concurs.
Section 3 of the Act had to do with money collected for advertising and not used for that purpose. The Act contains a severability clause and Section 3 is not challenged or before us on this appeal.. We are only concerned with Section 2 as amended. | [
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PER CURIAM.
Appellant James Hutts, by and through his attorney, has filed a motion for rule on clerk. His attorney, John C. ■ Riedel, states in the motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Conley Byrd, Justice.
The jury found appellant, Gerry Kent Dillaha guilty of burglary and grand larceny and fixed his punishment on each charge at 21 years in the penitentiary. For reversal he relies upon the following points.
“POINT I. The trial court erred in allowing appellee to introduce into evidence guns carried by persons other than appellant, which guns had relevance neither to the crimes charged nor in connection with appellant.
POINT II. Because of appellee’s highly prejudicial statements to the jury of matters outside of the record, the trial court should have granted appellant’s motion for mistrial and erred in failing to do so.
POINT III. Statements of appellant made shortly after an illegal arrest were improperly admitted into evidence.
POINT IV. Evidence of property of others found in appellant’s vehicle was improperly admitted into evidence.”
The record shows that the burglary and grand larceny occurred at the clinic of Dr. Charles Tucker located just north of Ash Flat near the intersection of Highways No. 167 and No. 62. During the early morning hours of May 26, 1973, two men, Thomas E. Norton and Richard K. Stone were observed in the clinic by a deputy sheriff. The sheriff Ray Martin lives north of the clinic toward Hardy. When he received the summons from his deputies for help he drove from his home directly to the clinic on Highway No. 167. As the sheriff topped the hill where he could view the clinic he saw a slow moving vehicle going south on Highway No. 167, turn right on Highway No. 62 and proceed in a like manner toward Salem. After Norton and Stone had been apprehended and the sheriff had determined that they were from Little Rock, he immediately began to look for their getaway vehicle. About that time a slow moving vehicle came down Highway No. 62 from Salem and proceeded slowly toward Hardy on Highway No. 167. The sheriff stopped appellant at that time and after determining that he was from Little Rock arrested him. At the jail appellant was given the Miranda warnings and placed in a cell some distance from Norton and Stone. While the sheriff was outside the jail he heard Norton yell to appellant, “Gerry, why didn’t you get to hell out of here while you could?” Appellant’s response was; “I didn’t know where you fellows were.” Other proof in the record shows that Ash Flat has a population of only 200 people and that appellant’s vehicle was the only vehicle on the highway for approximately an hour. The sheriff also testified that he had investigated a number of burglaries and that when adults were involved there was always a “get-away” vehicle.
POINT I. We find no merit in appellant’s contention that the guns found in the clinic belonging to Norton were not admissible in evidence. Stone testified for the State that the parties left Little Rock in appellant’s automobile for the purpose of “ripping off a drug store” and that appellant knew that the guns were in the car. Stone further testified that the plan was for him to enter the building with Norton waiting outside for the purpose of shooting anyone who showed up. Thus the guns were admissible to corroborate the testimony of an accomplice and to show that the parties had acted pursuant to a plan or scheme. In the cases relied upon by appellant such as Long v. State, 240 Ark. 687, 401 S.W. 2d 578 (1966), the weapons there erroneously admitted in evidence were neither used nor possessed for the commission of the crime.
POINTS III & IV. Under these points appellant contends that since the arrest was illegal the evidence obtained as a result thereof was improperly admitted — i.e. part of the fruit of the poisonous tree, Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). As we view the record there was probable cause for the arrest made by the sheriff.
POINT II. During the prosecuting attorney’s argument to the jury the following occurred:
“Dr. Tucker and my law partner grew up together down at Oil Trough, but to his old friends and maybe some of you all know him as Bo — Bo and I have known each other for several years now and after court yesterday he went with me to get some gas up the way, I was afraid I couldn’t get home and back. He said, ‘Terry, I hope you realize and I hope that jury realized I could have gotten killed in a deal like this.’
MR. POST: We object to that, Your Honor. This is not in evidence, we feel that it is a prejudicial error for the prosecutor to mention it, and we ask for a mistrial.
BY THE COURT: The objection will be sustained and that will be taken from the Jury’s consideration. The jury will be instructed to disregard that statement. The motion for mistrial will be overruled. You may proceed. MR. POYNTER: My point is, ladies and-gentlemen, I tell you that for illustrative purposes anyway.”
The statement by the prosecuting attorney is not supported by the record. In fact if such testimony had been offered, it should have been excluded as irrelevant. The effect of the prosecutor’s statement was to transmit a direct appeal from a local doctor for the obvious purpose of appealing to the jury’s passions and prejudices. In reversing a similar appeal to passions and prejudices in Adams v. State, 229 Ark. 777, 318 S.W. 2d 599 (1958), we quoted from Holder v. State, 58 Ark. 473, 25 S.W. 279 (1874), as follows:
“. . . ‘A prosecuting attorney is a public officer ‘acting in a quasi judicial capacity. ’ It is his duty to use all fair, honorable, reasonable and lawful means to secure the conviction of the guilty who are or may be indicted in the courts of his judicial circuit. He should see that they have a fair and impartial trial, and avoid convictions contrary to law. Nothing should tempt him to appeal to prejudices, to pervert the testimony, or make statements to the jury which, whether true or not, have not been proved. The desire for success should never induce him to endeavor to obtain a verdict by arguments based on anything except the evidence in the case and the conclusions legitimately deducible from the law applicable to the same. To convict and punish a person through the influence of prejudice and caprice is as pernicious in its consequences as the escape of a guilty man. The forms of law should never be prostituted to such a purpose.’ ”
Because of the improper remarks of the prosecuting attorney we find that the trial court erred in not declaring a mistrial.
Reversed and remanded. | [
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John A. Fogleman, Justice.
The City of Hot Springs entered into a contract on July 11, 1967, with McGeorge Contracting Company, Inc., for earth work and paving for the Hot Springs Municipal Airport for a consideration of $704,277.95. In the contract McGeorge agreed to furnish a bond, with approved surety, guaranteeing the performance of the contract, as required by the laws of Arkansas, to be conditioned on full and complete performance of the contract and for the payment of all labor and materials and guaranteeing “the work against workmanship or materials for a period of one year after completion.” The contract provided that the surety must be a surety company of financial resources satisfactory to the City of Hot Springs. McGeorge and appellee National Surety Company, as surety, executed a bond by which they bound themselves to The City of Hot Springs, as obligee and owner, incorporating the basic contract by reference. This bond contained the following clause:
*** No suit, action, or proceeding shall be brought on this bond except by the Owner after six (6) months from the date final payment is made on the Contract, nor shall any suit, action or proceeding be brought by the Owner after two (2) years from the date on which the final payment under the Contract falls due.
The work under the contract was substantially completed on or about August 15, 1968. Deterioration in the runway was discovered April 20, 1969, and the airport manager notified McGeorge and its paving subcontractor, Mid-State Construction Company. Representatives of the subcontractor patched cracks which had appeared in the runway and final payment was made on May 13, 1969. Subsequently, additional cracking and deterioration became apparent to appellants, who notified McGeorge and Mid-State. No remedial action was taken and appellants brought suit for specific performance of the contract on July 16, 1973, against both McGeorge and Mid-State, making appellee a party defendant, as the surety on the bond. The surety company answered, pleading the statute of limitations. The cause of action was then transferred to the circuit court, after which appellants amended their complaint to seek recovery of damages. Appellee then moved for summary judgment, relying upon the clause in the bond quoted above. The court granted the motion and dismissed the complaint of appellants as to National Surety Corporation. Hence this appeal.
Unless we can say that the clause relied upon by appellee is inoperative, we must affirm. Appellants contend that the statute of limitations of five years set out in Ark. Stat. Ann. § 37-237 (Supp. 1973) was the applicable limitation on its action and that the attempted two-year limitation in the bond was void as against public policy.
Appellants first argue that they were not parties to the bond and so were not bound by its limiting clause. It is difficult to understand how the City is bringing suit on a bond required by its contract with McGeorge without having accepted it. In the first place, acceptance may be presumed from appellants’ retention of the bond, at least when that is coupled with appellants’ permitting the contractor to enter upon the performance of his contract without objecting to the bond he tendered. Graves v. The Lebanon National Bank, 73 Ky. (10 Bush) 23 (1873); McIntosh v. Dakota Trust Co., 52 N.D. 752, 204 N.W. 818, 40 ALR 1021 (1925); Fiala v. Ainsworth, 63 Neb. 1, 88 N.W. 135, 93 Am. St. Rep. 420 (1901), See also, Mailers v. Crane Co., 92 Ill. App. 514 (1900) afmd 191 Ill. 181, 60 N.E. 804 (1901). But by bringing suit on the bond, appellants by necessary implication, have treated it as acceptable or have ratified it. McIntosh v. Dakota Trust Co., supra; Tidball v. Eichoff, 66 Tex. 58, 17 S.W. 263 (1886); Bird v. Washburn, 10 Pick (Mass.) 223 (1830). The fact of acceptance and the bringing of suit implies an assent to the terms and conditions of the instrument. See Merchants National Bank v. Detroit Trust Co., 258 Mich. 526, 242 N.W. 739, 85 ALR 350 (1932); Tidball v. Eichoff, supra. It has been aptly said that beneficiaries of a bond take it as they find it. Horne-Wilson, Inc. v. National Surety Co., 202 N.C. 73, 161 S.E. 726 (1932).
We cannot agree that the limitation provided in the surety bond is so unreasonable as to be against public policy. Of course, the parties were free to contract for a limitation of the time within which actions might be brought on their contractual undertaking, which was shorter than is prescribed by the applicable statute of limitations, so long as the stipulated time was not unreasonably short and the agreement did not contravene some statutory requirement or rule based upon public policy. St. Louis Southwestern Rwy. Co. v. Haynie, 120 Ark. 26, 179 S.W. 170; Kansas City Southern Rwy. Co. v. Bull, 120 Ark. 43, 179 S.W. 172; Missouri & N. Ark. R.R. Co. v. Ward, 111 Ark. 102, 163 S.W. 164; Dwelling House Ins. Co. v. Brodie, 52 Ark. 11, 11 S.W. 1016, 4 LRA 458; Phillips v. Mosaic Templars of America, 154 Ark. 173, 241 S.W. 869; Hafer v. St. Louis Southwestern Rwy. Co., 101 Ark. 310, 142 S.W. 176. Such provisions are often called a condition precedent to an action on the contractual undertaking.
Insofar as this action is concerned there is no statutory prohibition against such a requirement. The bond guaranteeing workmanship and materials is a common-law obligation, not a bond required by statute, and appellants correctly contend that the applicable statute of limitations bars the action after five years. See Ark. Stat. Ann. § 37-237 (Supp. 1973); State v. Western Surety Co., 223 Ark. 344, 266 S.W. 2d 835. A period of time so short as to amount to an abrogation of the right of action would be unreasonable. See Annot., 121 ALR 758 (1939), 6 ALR 3d 1197, 1202, 1204 (1966). But it is implicit in the decisions on the subject that the stipulated period is not unreasonable if the time allowed affords a plaintiff sufficient opportunity to investigate his claim and prepare for the controversy. See Annot., 6 ALR 3d 1197, 1202.
Numerous bonds of contractors engaged in private or public construction providing a limitation period no longer than that involved here have been upheld as reasonable and not violative of public policy. See, e.g., John M. Kelley Contracting Co. v. United States Fidelity & Guaranty Co., 278 F. 345 (3 Cir., 1922); Horne-Wilson, Inc. v. National Surety Co., 202 N.C. 73, 161 S.E. 726 (1932); Landis & Young v. Gossett & Winn, 178 S. 760 (La. Ct. App. 1937); Hale & Sons v. Stone Eng. Co., 14 Tenn. App. 461 (1932); McGarry v. Seiz, 129 Ga. 296, 58 S.E. 856 (1907); Rechtsteiner v. National Surety Co. of N.Y., 44 Cal. App. 774, 187 P. 34 (1919). See also, Annot., 6 ALR 3d 1197, 1222, 1240.
We are not impressed with appellants’ argument that public policy in respect to this bond is declared by Ark. Stat. Ann. § 66-3323 (Repl. 1966), prohibiting delivery of a life insurance policy containing such a clause. But the restriction of this statutory provision to life insurance contracts and its placement in the chapter of the Arkansas Insurance Code relating only to contracts of life insurance and annuities are indicative of a legislative intention to narrowly restrict the application of the statute to those contracts specifically nam ed. We have heretofore declined to apply legislation prohibiting such contractual limitations in insurance contracts beyond the scope of the language of the prohibitory statute. See Liebe v. Sovereign Camp, W.O.W., 205 Ark. 540, 170 S.W. 2d 370; Phillips v. Mosaic Templars of America, supra. It is also notable that the Insurance Code contains a provision voiding limitations on actions against sureties on bonds filed by an insurer, as a condition precedent to its doing business in this state, to a period shorter than that provided by the applicable statute. Ark. Stat. Ann. § 66-3232 (Repl. 1966). If the General Assembly had intended .that this policy be applicable to all bonds and all corporate sureties, it would certainly have not restricted the application of this section in the chapter covering all insurance contracts other than named exceptions.
We are certainly unable to say that the limitation contained in the bond in this case is unreasonable or unduly restrictive. Final payment was made on. May 9, 1969. The guarantee was for only one year after completion. It was alleged by appellants that the work was substantially completed on or about August 15, 1968. One year from that date still left more than one year and eight months for the bringing of this suit. This certainly should have given appellants ample time within which to investigate and prepare their suit against appellee, particularly when, as here, deterioration and cracking had appeared and repairs had been necessary prior to final payment.
The circuit judge correctly held that appellee’s motion for summary judgment was well taken, so the judgment is affirmed. | [
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Robert L. Brown, Justice.
This case is before us on ticfollowing e. grant of appellant Allyson Hunt’s petition to review an unpublished supplemental opinion of the court of appeals. The issue on review is whether the non-marital stock of appellee Bryan Hunt should be used to satisfy the margin debt he owes to Smith Barney or whether that debt should be deemed marital debt to be shared equally by the parties.
On December 17, 1987, Allyson Hunt and Bryan Hunt were married, and during the course of their ten-year marriage, they had four children. On June 18, 1997, Bryan Hunt filed for divorce, and on November 19, 1997, a divorce decree granting him a divorce and custody of the four children was entered. During their marriage, Bryan Hunt held several upper level management positions at J.B. Hunt Transport, Inc., while Allyson Hunt acted mainly as a homemaker. The salient points of the divorce decree regarding division of property are these:
• Bryan Hunt is to pay Allyson Hunt alimony at the rate of $2,750 a month for five years.
• Allyson Hunt is to keep her separate personal property, including certain furniture, paintings, jewelry, and clothing.
• 9,572 shares of J.B. Hunt Transport Co. are marital stock, while all remaining shares of J.B. Hunt stock held by Bryan Hunt are non-marital property (approximately 250,000 shares).
• 250 shares of Hunt Capital Corporation are marital stock to be divided evenly.
• A promissory note from Layton Stewart made payable to Bryan Hunt in the amount of $450,000 is marital property.
• 300 shares of Best Motor Company are marital property to be divided evenly. $2,170,000 borrowed from J.B. Hunt and Johnelle Hunt is a debt of the company.
• A federal income tax refund in the amount of $43,063 and an Arkansas state income tax refund in the amount of $13,823 are marital property.
• The parties’ residence at 5505 Bryant Place in Springdale is marital property.
• The following margin debts of Hunt Capital Corporation and Bryan Hunt are marital debts to be divided equally:
Smith Barney $649,584
John Tyson 3,000
Nations Bank 63,328
Montgomery Securities 132,794
Bear Stearns 247,594
• Bryan Hunt’s partnership interest in Hunt Capital Partnership in the amount of 25% of the profits and 50% of the losses is marital property.
• Bryan Hunt is to pay the cost of future counseling for Allyson Hunt, her health insurance for three years, and her attorney’s fees.
Following entry of the divorce decree, Allyson Hunt moved (1) to amend the divorce decree so as to have her share of one-half of the marital assets and all of her separate property transferred to her immediately, and (2) to hold Hunt Capital Corporation solely liable for all of the margin debt. The chancery court granted the transfer of the marital property but denied the request concerning the margin debt.
Allyson Hunt appealed the divorce decree to the court of appeals and raised several points. Initially, the court of appeals affirmed the chancery court across the board in an unpublished opinion. Hunt v. Hunt, CA 98-766 (March 3, 1999). On rehearing, the court of appeals entered an unpublished supplemental opinion, wherein it granted Allyson Hunt’s petition in part and denied it in part. Hunt v. Hunt, CA 98-766 (July 7, 1999). At issue was the marital debt arising out of the margin debt of Hunt Capital Corporation associated with the investment houses of Bear Stearns, Merrill Lynch, Montgomery Securities, and Smith Barney. Margin debt generally accrues, where the purchaser buys stock and finances part of the purchase price by borrowing against the stock purchased. Louis and Seligman, Fundamentals of Securities Regulation, p. 707 (Little Brown & Co. 1995).
The court of appeals found that the chancery court did not err in holding Allyson Hunt responsible for one-half of this margin debt. However, the court of appeals went further and held that the non-marital stock pledged by Bryan Hunt as collateral for the margin accounts of Bear Stearns, Merrill Lynch, and Montgomery Securities should be used first to satisfy the margin debts. The court of appeals denied the petition for rehearing with respect to the margin debt owed by Bryan Hunt to Smith Barney and stated that the money resulting in this debt was used (1) to pay part of the purchase price of the residence in Springdale, (2) to pay part of the furnishings for that residence, and (3) to pay living expenses. Two of the six court of appeals judges dissented from this decision and would have ordered Bryan Hunt’s non-marital stock to be used to pay the Smith Barney debt also.
We initially note that the court of appeals’s supplemental opinion holding that the non-marital stock of Bryan Hunt be used to satisfy the margin debts owed to Bear Stearns, Merrill Lynch, and Montgomery Securities is not at issue in our review and, thus, stands as a modification of the divorce decree. The point, which is the subject of this review, is whether Bryan Hunt’s non-marital stock should also be used to pay the margin debt he owes to Smith Barney.
Allyson Hunt asks this court to determine that Bryan Hunt’s non-marital stock in J.B. Hunt Transport Services, Inc. held in his personal Smith Barney account (#165-23869-11) be used to satisfy the margin debt owed to Smith Barney or, alternatively, that she not be held responsible for this debt. She disputes the fact that the loans made on this Smith Barney account were used to pay for household or living expenses and claims that during their marriage, Bryan Hunt derived substantial income each month from his employment at J.B. Hunt Transport Co. which was used for their living expenses. She maintains that the chancery court should have made an unequal division of property, which it had the authority to do under Ark. Code Ann. § 9-12-315 (Repl. 1998). Moreover, she contends that Bryan Hunt offered to pay all of the margin debt prior to the divorce decree, including the debt he owed to Smith Barney. Finally, she contends that she is being saddled with payment of one-half of the $649,584 Smith Barney margin debt when she has not been given sufficient assets or income from the marital estate to satisfy that debt.
Bryan Hunt merely points to his testimony at trial where he stated that the Smith Barney loan was used to pay cost overruns on construction of the residence which totaled almost $400,000; to pay for furnishings in the home which totaled approximately $200,000; and to support the parties’ standard of living. He further claims that any offer by him to pay all margin debt was made in a proposed pretrial property division, which is not binding, and he concludes that the chancery court did not err by attempting to make an equal distribution of assets and debts.
We begin by observing that this court reviews chancery cases de novo on the record, and we will not reverse a finding of fact by the chancery court unless it is clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). In reviewing a chancery court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Myrick v. Myrick, supra.
All marital property must be distributed equally under our divorce law unless the chancery court finds such a division to be inequitable. Ark. Code Ann. § 9-12-315(a)(l)(A); Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988). The chancery court has the authority to make an unequal division of marital property under the statute. If an unequal division is made, the court must take the following factors into consideration: the length of the marriage; age, health and station in life of the parties; occupation of the parties; amount and sources of income; vocational skills; employability; estate, liabilities, and needs of each party and opportunity of each to further the acquisition of capital assets and income; contribution of each party in the acquisition, preservation, or appreciation of marital property, including services as a homemaker; and the federal income tax consequences of the court’s division of property. Ark. Code Ann. § 9-12-315(a)(l)(A)(i-ix).
In the instant case, the chancery court found that Bryan Hunt’s margin debt in Smith Barney account #165-23869-11 was a marital debt due to the benefit bestowed on both parties by these loans. That benefit was made clear by Bryan Hunt’s testimony where he stated that this Smith Barney debt was incurred to finance cost overruns on the construction of the parties’ residence, for furnishing the house, and generally to pay for the parties’ lifestyle and living expenses. Allyson Hunt did not refute this in her own testimony and, indeed, confirmed the high cost of the house and the furnishings. Allyson Hunt, however, now urges this court to follow its caselaw. She claims that this court has sanctioned an unequal division of property, when the husband’s non-marital property or high income warranted such a result. She directs our attention specifically to Hale v. Hale, 307 Ark. 546, 822 S.W.2d 836 (1992), and Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510 (1983).
Neither case, however, provides precedent for the instant case. In Hale, for example, we affirmed the chancery court’s recognition that the husband had formally volunteered in a mortgage agreement to put up 119 acres of non-marital land as security for the parties’ consolidated debt loan. Under these facts, we agreed with the chancery court that this mortgaged land should be used to satisfy that debt. Similarly, in Richardson, we affirmed the chancery court’s division of property and debts which took into account the husband’s high income. We refused to hold that the chancery court had clearly erred in that regard.
In the case before us the extent of Bryan Hunt’s monthly income is at issue as well as the profitability of the various marital assets. The chancery court heard the testimony of the parties and other witnesses and sought to produce an even division of the assets and debts. Allyson Hunt adduces the Hale and Richardson cases as authority for reversing the chancery court in the instant case. How ever, in both of those cases, we affirmed the division of property by the chancery court and held that that court had not erred. Likewise, we conclude that the findings of the chancery court in dividing the assets and debt in the case at hand are not clearly erroneous.
We additionally note that the Smith Barney account in dispute in this review (#165-23869-11) was in the name of Bryan Hunt and not in the name of Hunt Capital Corporation, as the other margin accounts at issue before the court of appeals appear to have been. The record shows account activity in this Smith Barney account for the years 1996 and 1997. For a two-month period in 1996, J.B. Hunt Transport Services stock was placed in the Smith Barney margin account, but it was not in the margin account during 1997. There is nothing in the record to support the proposition that the J.B. Hunt Transport Services stock was pledged as security or collateral for the Smith Barney margin debt. Indeed, Allyson Hunt does not argue that it was. Rather, she contends that fairness dictates that the non-marital stock be used to pay off the debt.
In her petition for review, Allyson Hunt argued for the first time that the chancery court erred in not following a statute, which she contends is on point. That statute reads:
No bargain or contract made by any married person, in respect to his or her sole and separate property or any property which may come to him or her by descent, devise, bequest, purchase, or gift or grant of any person, and no bargain or contract entered into by any married person, in or about the carrying on of any trade or business, under any statute of the state, shall be binding upon his or her spouse, or render his or her person or property in any way liable therefor.
Ark. Code Ann. § 9-11-508 (Repl. 1998). This statute also formed the basis for the dissent to the supplemental opinion in the court of appeals. In support of her argument, Allyson Hunt points to Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991), and Davis v. Baxter County Reg’l Hosp., 313 Ark. 388, 855 S.W.2d 303 (1993). Neither Medlock nor Davis were divorce cases, however, where the propriety of the division of marital property was at issue. Rather, both cases involved the common-law doctrine of necessaries and the impact of § 9-11-508 on that doctrine. A statute that deals with spousal liability to third-party creditors is not controlling on the issue of marital debt associated with division of property in a divorce case. They are simply two disparate and distinct matters. We conclude, therefore, that § 9-11-508 is inapposite and note once more that Allyson Hunt did not raise the statute in support of her position to the chancery court or initially to the court of appeals but only did so in her petition for review before this court.
We turn, finally, to the overarching argument made by Allyson Hunt that her share of the Smith Barney debt is staggering, and the marital assets she has received and her potential for enhanced monthly income are meager by comparison. She alludes to the high mortgage debt on the residence which consumes any equity and the personal debt owed to J.B. and Johnelle Hunt by Best Motor Company. As for her interest in the Layton Stuart promissory note, her counsel at oral argument characterized that as virtually worthless, because it is being offset by another obligation in a comparable amount. With respect to the marital property she has received, she values that at only $115,000.
We will not speculate on the earning potential of Best Motor Company, the future viability of the Layton Stewart promissory note, or the value of any other marital asset received by Allyson Hunt. Suffice it to say that the chancery court thoroughly examined this matter as is evidenced by the record in this case and examined the credibility of the witnesses. The court of appeals then modified the divorce decree with regard to payment of Hunt Capital Corporation’s margin debt in a manner with which we take no issue. We further observe that should the economic situation of Allyson Hunt change, her award of alimony may be subject to modification. Ark. Code Ann. § 9-12-314(a) (Repl. 1998); Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (1998).
We affirm the divorce decree as modified by the court of appeals.
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LAVENSKI R. SMITH, Justice.
Appellant, Steven Anthony Sera appeals stice. eight criminal counts related to three sexual encounters involving the use of the drug Rohypnol with two women in Monticello, Arkansas. Sera raises five points on appeal, including challenges to the sufficiency of the evidence, the trial court’s admission of evidence under Ark. R. Evid. 404(b), the constitutionality of the Arkansas Rape Shield Statute, the admission of certain expert testimony, and the admission of a videotape depicting three sexual encounters involving Sera and three different apparently unconscious women, including one of the victims. The court of appeals certified this case to us because the constitutionality of the rape-shield statute is at issue. We affirm.
Facts
The facts in this case are extensive. The trial record contains nearly 3100 pages of pleadings, testimony and exhibits. A thorough factual summary is required because a challenge has been made to the sufficiency of the evidence. In late summer of 1996, Sera lived with his wife and daughter in Dallas, Texas. There, Sera owned and operated Chandler Lumber Company, named after his daughter. After hearing of the closing of a lumber mill in Warren, Arkansas, Sera began visiting Warren to explore purchasing the property. Sera eventually bought the property and started a mill division of his company in Warren.
The first five counts of the criminal information filed against Sera involve Tammy Deal. Toward the end of August or early September, during one of Sera’s visits to Warren to set up the mill, he and a friend went out one night to a local Warren bar called Spanky’s. While there, Sera met Deal, and the two spoke for several minutes. The next day Sera sent flowers to Deal. Deal testified that Sera’s gift surprised her. She stated that Sera began calling her at work to ask her out. Initially, she did not accept the invitations, but eventually agreed to date, believing that he was divorced. Soon Sera began buying her clothes and jewelry, including lingerie from Victoria’s Secret. On one occasion, he sent her flowers with a card attached which read, “Every woman needs to know that someone finds them interesting, intelligent and attractive.” On another occasion, he sent her a flower arrangement with a card that read, “I’m leaning more towards one of the best things that ever happened. All my love, Steven.”
When Sera was in Warren on business, he usually resided at one of two bed-and-breakfasts, the Burnett House or the Colvin House. Sera testified that he and Deal mainly spent their time together at the bed-and-breakfasts, often just sitting on the porch and talking. Deal testified that they spent very little time together before the first of the two episodes charged in this case. Deal testified that the two did not start a sexual relationship until after her birthday which was just before Thanksgiving. She indicated their consensual encounter took place at the Burnett House. Sera testified that during the course of their relationship he and Deal were intimate on several occasions.
Deal testified that the first occasion she spent any significant time alone with Sera occurred one afternoon in October when her cousin, Teresa Waters, offered to watch Deal’s two sons. Deal told Sera about this, and Sera offered to take Deal to Monticello for the afternoon. Throughout the trial, the facts surrounding this trip are referred to as the “Monticello incident.” Deal agreed and dropped her children off at her cousin’s house. Deal testified that Sera placed a six-pack of beer in a cooler in the trunk of his car. During the trip to Monticello, Sera pulled off the road and asked Deal if she wanted a beer. She agreed, and he stepped to the back of the car to get the drink. Deal testified that he remained at the rear of the car for quite some time which prompted her to ask what was taking him so long. He responded that he was mixing a drink for himself. When he returned, he handed Deal the beer, and they continued driving. The couple pulled over again after Deal finished the first beer, and Sera got her another one. Deal testified that from that point she did not remember much of the remainder of the trip back from Monticello. Sera later told her she consumed two or three more of the beers on the way back. Deal has no memory of this or most of the events of the afternoon. According to Deal, the next thing she clearly remembered was going to her cousin’s house to pick up her children.
The couple next went on a trip together to a casino in Green-ville, Mississippi. Deal testified that they both consumed alcohol, and that she did not remember much about the ride back to Warren. Her next memory was waking up on the couch in the living room the next morning at the Burnett house. Again, Deal testified that Sera insinuated that she had had too much to drink the day before.
The couple’s third out-of-town trip involved a trip from Warren to Little Rock for dinner at the Macaroni Grill restaurant. According to Deal, Sera bought two individual cans of beer on the way to Little Rock, and that she drank one of them, and took a few drinks from the other. During dinner, Deal recalls drinking a glass of wine and a glass of water. Towards the end of dinner, Deal left the table to go to the bathroom. According to Deal’s testimony, she returned to the table and finished her water, and soon thereafter began to feel ill. Her last recollection of the evening was walking to the car in the restaurant parking lot. She testified that she did not recall any of the 100-mile trip home to Warren, and that the next time she was aware, she was waking up in bed with Sera the next morning at the Burnett House. She continued to feel sick for the rest of the day and evening, with stomach cramps and nausea. During trial, the parties referred to this third trip as the “Macaroni Grill incident.”
According to Deal, the couple’s one and only consensual intimate encounter occurred in November around the time of her birthday. Sera had given Deal several birthday presents, including a pearl necklace and earrings, and the couple met at the Burnett House before Sera went out of town on a business trip. Deal testified that Sera did not videotape their tryst and that she was conscious throughout. She further recalled that she returned to the Burnett House to see Sera the next evening on his invitation, but that he was not there.
Deal concluded her testimony by relating to the jury an account of her last contact with Sera. In early December, she went to the Burnett House to return some of the presents Sera had given her. Deal recounted that when she approached the Burnett House, she observed Sera holding an unconscious woman in his arms while trying to unlock the door. Deal recognized this woman as Jackie Haygood. Haygood is the other victim in this case. According to Deal’s testimony, she greeted Sera, who acted “startled” and “nervous.” Deal spoke, saying, “I see you have your hands full.” Sera responded that he would call her the next morning, and then she left.
At the time, Deal assumed Haygood must have been drunk and had passed out. The events Deal witnessed on the steps of the Burnett House that night underlie the three remaining counts of the eight counts charged against Sera. These counts involve the attempted rape, kidnapping, and introduction of a controlled substance into Haygood by Sera.
At trial, Haygood testified to the events leading up to what Deal witnessed on the Burnett house steps. Sera’s contacts with Haygood coincided with his business trips to Warren during the second half of 1996. Sera became friends with Haygood through his acquaintance with her husband, Gary. Gary was an employee of Sera’s company, and Haygood assisted the company to get its mill offices established. According to both Sera and Haygood, Sera understandably spent considerable time with Haygood and her husband, because they worked together. Sera testified that he considered Haygood a very close friend and even called her “Little Sis.” Haygood also testified that she thought of Sera as a good friend.
According to Haygood, on December 12, 1996, Sera arranged for Haygood’s husband to be out of town overnight on a business trip to some out-of-state mills. That evening, Sera and Haygood drove to Little Rock to buy supplies for the office, a trip which had been planned for several days. Sera and Haygood stopped in Pine Bluff on the way to Little Rock to buy some alcohol. Sera purchased a small bottle of tequila and eight premixed margaritas. Sera put the drinks in an ice chest in the back of his Range Rover. Haygood testified that she drank one of the premixed margaritas out of the bottle, and the two split some of the others. By Haygood’s count, she drank one, poured one out in Little Rock, Sera poured one out, and three-and-a-half were left the next day.
After they returned to Warren from Little Rock and unloaded some of the supplies in the truck, Haygood called her husband from the mill at approximately 9:25 to 9:30 p.m. to let him know that she was home from her trip. Haygood testified that when she walked out of the mill office, Sera had lowered the tailgate to the truck, and was holding two plastic cups with tequila in them. Sera handed Haygood one of them. Sera admitted that he had put one or two Rohypnol tablets and a Vicodin-EX analgesic in one of the cups. He testified that he prepared that particular drink for himself. However, it is undisputed that he gave the drink containing the narcotics to Haygood who d ank it. Immediately, she noticed a gritty substance in the bottom of the cup. According to Haygood, she promptly asked Sera what he had put in her cup. He denied that anything was in the cup. According to his testimony, he initially denied putting anything in her cup, but knew that he was going to have to explain things to the Haygoods and his business partner. According to Haygood’s testimony, she soon felt the effects of the drugs, and could not remember going home that evening. A short time later, Tammy Deal observed an unconscious Haygood in Sera’s arms at the Burnett house as mentioned above.
Sera testified that once he realized what had happened, he decided he needed to take her home. He denied taking her to the bed-and-breakfast where he was staying on that trip, and-contended that Deal lied when she testified that she saw Sera holding Haygood and trying to open the door that night at the Burnett House. According to Sera’s testimony, he drove Haygood home and took her into her house. There, he met the Haygood’s son, Chad, who helped Sera put Haygood into bed. Chad acknowledges greeting Sera and helping his unconscious mother to bed. Chad recalled Sera telling him that Haygood had had too much to drink that night. Chad also testified that Sera brought Haygood into the house at approximately 9:45 or 10 p.m. When Sera returned to his car, he called Haygood’s husband and told him that he had taken Haygood home and put her to bed because she was drunk. However, he did not tell Haygood or her husband that had allowed her to unknowingly ingest narcotics.
Haygood’s next memory was waking up in her bed the next morning and feeling very sick and very uncoordinated. She could not remember how she got there. Haygood testified that she called Sera and again asked what he had given her. Again, he blamed her condition on over drinking, which she denied. Haygood actually rode with Sera to work that day, but testified that she felt bad the whole day. That evening, knowing something had happened, Haygood saw her doctor who took a urine sample to be sent to a lab and tested. The test later returned showing a positive indication of Rohypnol in Haygood’s urine.
Haygood and Sera had several contacts over the following days. The Haygoods informed Sera as well as Sera’s business partner about the drug-screening results. After learning of this, Sera fired Haygood, but later apologized for doing so. According to Haygood, Sera called her house repeatedly begging her not to pursue the matter because he would “lose everything” if she did. Ultimately, Sera sold the company to his partner to be relieved of the situation.
As these events unfolded in Arkansas, others transpired in Texas. Another female witness, Melanie Hataway, testified extensively about her contacts with Sera. Hataway is the third of the three victims depicted on the videotape introduced by the State. According to Hataway, she met Sera on November 8, 1996, at a restaurant in Dallas. Hataway testified that Sera approached her in the restaurant and began talking to her. The two then carried on a conversation for most of the evening. Hataway testified that she asked him if he had a girlfriend. He replied that he did in California, but that after meeting Hataway, he knew that his girlfriend would not be happy because he felt that Hataway was “someone special.” According to Hataway, Sera insisted that she join his group for dinner, and then, when she began to order, told her to order the most expensive item on the menu. Ultimately, the couple did not stay for dinner, but went to another restaurant where they had several drinks and danced. Hataway then went home.
The following Monday, Sera sent Hataway a large bouquet of flowers and began calling her at work. On Wednesday of that week, Sera sent a box to Hataway’s office containing presents of clothing and lingerie. The box had a note attached to it which read, “Melanie, every woman needs to know that someone finds them intelligent, interesting, and extremely attractive. Always, Steven.” Hataway testified that Sera represented that he broke off the relationship with his girlfriend in California because he felt strongly about his relationship with Hataway.
Although they spoke on the phone almost daily, Hataway did not see Sera again until she agreed to go to New Orleans on an overnight trip on November 22, 1996. Sera rented two hotel rooms, and the couple flew down together. Upon arriving at the hotel, Hataway changed clothes in her room, and when she was finished, Sera presented her with a pearl necklace. Hataway admits that she had consensual sex with Sera that night, but denies that the encounter was videotaped. The couple returned to Dallas on Saturday, and Hataway drove Sera to his house, where Sera’s wife, Nancy, met him at the door. According to Hataway, Sera led her to believe that Nancy was really his ex-wife and that she only stayed in Dallas when she was passing through to pick up or drop off Chandler. At that time, Nancy was seven months pregnant with the Sera’s second child.
The following Monday, Sera sent Hataway the shirt he had been wearing on Saturday, sprayed with the cologne he wore. Attached was a note which read, “Melanie, something to sleep in while I’m gone. All my love, Steven.” When Hataway went home to New York for Thanksgiving, Sera sent presents for her family. He also sent her a copy of a children’s book, which Sera called his daughter’s favorite. Another present in that package was a set of pearl earrings. The couple continued to speak frequently and at length on the telephone.
On December 2, 1996, Hataway went to Sera’s house for dinner, and met Sera’s brother, Tony. Again, Sera gave Hataway another children’s book, and then showed her most of the house. On this occasion, Hataway acknowledges having consensual sex with Sera in Sera’s house but denies any consent to it being videotaped.
On December 4, 1996, Hataway planned to attend a charity event with friends, and Sera invited himself to go along. At the event, Sera fixed Hataway’s drinks in a “special glass” from a special bottle of champagne behind the bar. The couple ultimately got into an argument because, according to Hataway, Sera was becoming too friendly with some of her female friends. The two left the restaurant and got into Sera’s car and, according to Hataway, that was the last thing she remembered until she woke up in bed naked, feeling sick with stomach cramps. Hataway testified that she drove herself to the hospital at approximately 3 or 4 a.m., but fell asleep in the waiting room. She was awakened by a nurse who told her to either check in or go home, so Hataway went home. Upon returning home, Hataway called Sera and questioned him about what had happened. Hataway testified that Sera asked her if she was breathing alright, which she said she was, and then he came over. Ultimately, Sera implied Hataway had had too much to drink.
Hataway testified that she and Sera saw each other a couple of times after that, but that after the week of December 6, 1996, he just “disappeared.” Hataway testified that she did not hear from him again until January 5, 1997. Over the following weeks they met a few times for dinner and to go to a Dallas Mavericks basketball game on January 17, 1997. Hataway testified that she drank one glass of wine at the game, and started another glass, but began to feel bad. She testified that she remembered leaving the game, but that her next memory is waking up the next morning, and seeing Sera walk into her bedroom. Hataway testified that she asked him what happened, and that he told her again that she had had too much to drink. She disputed this, noting that she only had two glasses of wine. He left soon after. Hataway did not see Sera again.
All of these apparently isolated events eventually became related and took on a more sinister light after Sera’s wife, Nancy, filed for divorce in Texas. She did so after learning of Sera’s affair with Melanie Hataway. According to Hataway, she received a message from Nancy Sera on January 18, 1997, in which Nancy explained that Sera and Nancy were married and that Nancy was over seven months pregnant. Nancy requested that Hataway call her. Hataway did not call Nancy, and attempted to avoid Sera’s calls for several days. Finally, she spoke to Sera on January 24, 1997, and told him that she did not want to see him anymore. Hataway testified that Sera, at first, acted confused and stated that he thought they had a good relationship. Hataway then told Sera that she knew Nancy was still married to him and that she was pregnant. According to Hataway, Sera called Nancy a “lying bitch” and claimed that they had not been intimate for over a year and that the child was not his. After this conversation, Sera showed up at Hataway’s apartment several times, but Hataway refused to answer the door.
Nancy testified that until mid-1996, she believed she and Sera had a strong marriage, and she became pregnant with the couple’s second child in July, 1996. She testified that Sera was “thrilled” with the news. But, by early 1997 she suspected Sera was having an affair, and confirmed this during the Hataway incident. According to Nancy, in December 1996, a man came to the door, and Sera pretended to be his own brother, Tony, when he spoke to the man. She identified the person at the door as Fred Daugherty. Daugherty later became the private investigator for Nancy’s divorce attorney. According to Nancy, she found the videotape sometime in mid-June 1997 after she and Sera had separated. Sera’s testimony contradicted her and he contended that Nancy found the tape much earlier. Nancy explained that she had gone to their house (she was living in an apartment at the time) to get the video camera Sera had purchased to record an upcoming family event. Nancy still had a key and thus access to the home. After returning to her apartment, she checked the videotape in the camera and saw the videotaped incidents of Sera with three women including her own younger sister, Patty Coleman. Nancy called her divorce attorney who told her to give the tape to Daugherty who in turn gave it to the police after having copies made.
Nancy also testified that once when she cleaned out Sera’s suitcase after a trip, she found a bottle labeled “Rohypnol,” and she hid the bottle with several pills in it. When Sera looked for his pills, he became very upset when he could not find them, according to Nancy. Nancy eventually gave this bottle to Daugherty in the course of his investigation. Daugherty had it copied onto some VHS tapes at a video store where he took many of his work projects.
When Nancy confronted Sera about the tape and told him that she had taken it to the police, he told her that if she didn’t get the tape back, he would go to jail. He then took their daughter Chandler and left town for several days. Nancy and Daugherty returned to the house some time later, and Daugherty searched the house and took packets of medicine from Sera’s shaving kit.
The Colleyville, Texas, police department reviewed the tape. They contacted Hataway who came down and viewed the tape. After witnessing it, she became physically sick according to the testimony of an Officer Badillo of the Colleyville police. The Texas authorities contacted their Arkansas counterparts when they suspected an Arkansas resident might be included on the tape. They were correct. Tammy Deal was eventually identified as one of the women appearing on the tape. She, too, expressed disgust and shock upon being informed of her appearance on the videotape.
On July 14, 1997, the Bradley County prosecutor filed original charges against Sera consisting of six counts arising out of incidents with Haygood and Deal, the two Arkansas victims. Several pretrial motions were filed by the State and the defense. In particular, Sera filed motions to declare the rape-shield statute unconstitutional and to exclude the testimony and evidence from Hataway and Coleman. The State amended the felony information on December 15, 1997, to then state eight counts. A brief summary of those counts follows:
Counts one and two:
1. Administering or causing to be ingested, inhaled or otherwise introduced into Tammy Deal a Schedule IV controlled substance, Rohypnol — Class C felony;
2. Engaging in sexual intercourse or deviate sexual activity with Tammy Deal when she was incapable of consent due to the drugs without her knowledge or consent — Class Y felony.
Counts three, four, and five:
3. Administering or causing to be ingested, inhaled or otherwise introduced into Tammy Deal a Schedule IV controlled substance, Rohypnol — Class C felony;
4. Restraint of Tammy Deal without consent for the purposes of engaging in sexual intercourse, deviate sexual activity or sexual contact with her — Class B felony;
5. Engaging in sexual intercourse or deviate sexual activity with Tammy Deal when she was incapable of consent due to the drugs without her knowledge or consent — Class Y felony.
Counts six, seven, and eight:
6. Administering or causing to be ingested, inhaled or otherwise introduced into Jackie Haygood a Schedule IV controlled substance, Rohypnol — Class C felony;
7. Restraint of Jackie Haygood without consent for the purposes of engaging in sexual intercourse, deviate sexual activity or sexual contact with her — Class B felony;
8. Engaging in conduct intended to culminate in the commission of the offense of rape upon Jackie Haygood — Class Y felony.
The trial court held a pretrial hearing to determine if the testimony of Hataway and Coleman should be excluded. After the hearing, the trial court denied the defense’s motion to exclude the evidence in an order on December 19, 1997. The trial court later held another hearing to determine the constitutionality of the rape-shield statute and the admission of certain evidence under that statute on February 17, 1998. In due course, the trial court denied Sera’s motions.
The jury trial began on March 10, 1998, and continued six days. During the trial, the State presented numerous witnesses, including Haygood and her son Chad, Nancy Sera, Daugherty, Deal, Waters, Coleman, Officer Badillo, and Hataway. Other relevant State witnesses included two experts, Dr. Mahmoud ElSohly and Dr. James Tolliver, who testified regarding the history and effects of Rohypnol.
According to Coleman’s testimony at trial, the episode on the tape involving her must have occurred one night when Sera visited Coleman in Springfield, Missouri, where Coleman was in college. According to Coleman, Sera called her at school and told her that he was coming through Springfield and that he wanted to take Coleman and some of her friends out for the evening in a limousine. He also told Coleman that he wanted her to go shopping for a new outfit and new pajamas for the evening, and to get her hair done. He was going to rent two rooms at a hotel for them to stay in, and that Coleman could have a friend stay with her in her room. According to Coleman, Sera told her not to tell her parents that he was passing through Springfield.
The evening began with Sera, Coleman, and a group of her friends riding in the limousine to Branson, Missouri, where the group had dinner. Coleman recalls that they drank some alcohol on the way down to Branson, and that Sera mixed her drinks. Coleman remembers having two or three drinks on the way to Branson. On the way back to Springfield after dinner, Coleman only recalls one drink, and then falling asleep in the limo. Her next memory was waking up in Sera’s hotel room wearing one of his t-shirts. Coleman testified that she felt very tired. Sera told her that she drank too much. Coleman testified that when she left the hotel with Sera to go back to her dormitory, she saw a tripod in the back seat of his car, and remembered seeing a camera or a red dot. Coleman testified that at no time did she agree to have intercourse with Sera or agree to be videotaped.
In response to Coleman’s assertions, Sera testified that he and Coleman had an ongoing sexual relationship which included contact in Missouri and in Texas when Coleman came to visit. Sera testified to several encounters with Coleman, and testified that they, too, had videotaped these episodes. Sera also testified that the two had taken still photographs of one another, and the Nancy had found these photos and burned them in the fireplace. Sera stated that Nancy was aware of his relationship with her sister. Sera testi fied that on the night that he took Coleman and her friends to dinner in Branson, Coleman drank several drinks on the way to and from Branson. He testified that she passed out from the alcohol, and he helped her to bed.
Dr. ElSohly, a pharmacologist who created a test for HoffmanLaRoche, the manufacturer of Rohypnol, to detect the presence of Rohypnol in human test samples, testified regarding the pharmacological effects of the drug. Dr. ElSohly testified that Rohypnol is in the class of drugs called benzodiazepines, a class which includes Valium, and that the effects of the drug on the human body can include hypnosis, or sleep, total muscle relaxation, and loss of memory. Dr. ElSohly also described the test he developed to detect the presence of Rohypnol metabolites in urine samples to determine if and when someone had ingested the drug. It was this test that Dr. ElSohly’s private lab conducted on Haygood’s urine sample sent to them by Dr. Pennington, Haygood’s physician in Warren.
Regarding that test, Dr. ElSohly testified that a person in his lab conducted the test and found the presence of the metabolites, and that he reviewed the test results and signed off on them before returning the results to Dr. Pennington. Finally, Dr. ElSohly testified that after reviewing the videotape of the episodes involving Coleman, Deal, and Hataway, he believed that it was possible that these women were under the influence of Rohypnol, but could not rule out different drugs, as well.
Dr. Tolliver, a pharmacologist with the Drug Enforcement Agency, testified extensively regarding his familiarity with Rohypnol and his studies and research projects on the drug. Dr. Tolliver testified that Rohypnol is not legal in the United States, but that it is sold outside of the country in countries such as Mexico. Dr. Tolliver testified that as part of his job with the DEA, he has studied the uses of the drug in medical fields, as well as how the drug was being misused in the United States. Dr. Tolliver noted the he has participated in several workshops in Virginia regarding the use of Rohypnol in sexual-assault cases, and he testified regarding his experience and knowledge about the five main effects of the drug on the human body. He, too, indicated that Rohypnol will cause hypnosis, reheve anxiety, have an anti-convulsive effect, relax skeletal and smooth muscles, and cause anterograde amnesia, which is the failure to remember things that happen while under the influence of the drug. Dr. Tolliver testified that depending on the amount of the drug taken and at what point the drug is taking effect, a person can be talking and functioning and still not be able to remember what happened during that time. Because Rohypnol is a depressant, its effects can be as far-reaching as causing death when too large a dose is ingested. This is caused by the depression of the respiratory system, making it difficult or impossible to breathe. Furthermore, Dr. Tolliver stated that combining Rohypnol with another drug such as alcohol causes a magnification of the effects of the drug. This can cause a deeper state of unconsciousness, it would require a greater amount of stimulus to awaken the person affected by the drug. Fie pointed out that the onset of the reaction to the drug can take anywhere from fifteen to thirty minutes, depending on whether the drug is taken in tablet form or whether it is ground up into a powder-like substance. In addition, Dr. Tolliver stated that his studies on the drug included dissolving it into several types of alcoholic drinks, and he noted that the drug would “fizz” in carbonated drinks until dissolved while it would not in uncarbonated drinks. Dr. Tolliver testified that one of the side effects of the drug was gastrointestinal problems and cramping, and that this effect could be increased when the drug is combined with alcohol or other drugs. Finally, Dr. Tolliver, after viewing the videotape, opined that he believed that the victims’ behavior was consistent with the effects of Rohypnol. He did not believe that alcohol, in the amounts taken as indicated by the victims, would produce the effects he saw on the videotape.
At the close of the State’s case, Sera moved for directed verdict as to count one, count three, and count five. Sera contended there was no evidence on count one or count three that Sera introduced a drug into Deal. Also, he argued that count five should be dismissed because there was no evidence that deviate sexual activity took place. The State responded arguing that the expert testimony showed the victim’s behavior was consistent with Rohypnol ingestion and that she regained consciousness in the defendant’s bed dressed only in a t-shirt. The State also pointed to evidence from other witnesses which indicated a pattern and plan by Sera. The court denied Sera’s motion.
The defense presented testimony from seventeen witnesses in its case. Sera testified on his own account. His brother, Tony, testified regarding his impressions about Sera’s relationships with Nancy, Hataway, and Coleman. Tony testified that he knew of Sera’s affair with Hataway, but he noted that he did not tell Nancy about it. Tony also testified that he was aware that Coleman had a “romantic” relationship with Sera. Again, however, he did not tell Nancy about this alleged affair. He testified that he saw the purported nude photographs of Coleman and Sera.
Sera’s defense also included the testimony of Mike Narisi, a video and production expert, who testified regarding the videotape. According to Narisi, the original 8mm videotape was the tape used to record the three sexual encounters, but that the tape was edited somehow between the second and third episodes. Narisi testified that the episodes themselves had not been edited, and that the break between the first and second episodes was the natural break caused by the video camera. However, the edit between the second and third episodes was completed by some other type of editing machine, such as a VCR or professional editing equipment, and that it was impossible to tell whether this edit was completed by Sera, who would have had the capability to do the edit, or some other person. Narisi testified that it would be impossible to determine what was edited out of the tape.
At the close of the defense’s case, Sera renewed his directed-verdict motion. In addition to the three counts raised earlier, he attempted to add counts two (rape) and four (kidnapping) to the motion neither of which were raised in the prior motion. The trial court again denied the motion, and the case went to the jury. The jury convicted Sera on all eight counts, and sentenced him to a term of years on each respective count totaling eighty-five years. The jury recommended the sentences run concurrendy. The longest single sentence was thirty years for rape. Count five involving Deal in the “Macaroni Grill” incident was the only rape conviction. Sera appealed his conviction on March 30, 1998, in a timely manner.
Sera raises five points on appeal. The first point is a challenge to the sufficiency of the evidence on counts three, four, and five involving one of two prosecuted incidents involving Tammy Deal. Sera’s second point alleges that the trial court erred in admitting Rule 404(b) evidence, including evidence of two separate incidents involving two other victims from Missouri and Texas. Sera contends that the evidence should not have been admitted because it was used by the jury to prove Sera’s guilt, not just to show a pattern of behavior. Sera’s third point challenges the constitutionality of the Rape Shield Statute, codified at Ark. Code Ann. § 16-43-101. He contends that the statute was improperly adopted or is unconstitutional or, in the alternative, that the trial court misapplied it to exclude evidence pertaining to one of the victims, Jackie Haygood. In his fourth point, Sera argues that the trial court erred in allowing one of the State’s experts to testify regarding the effects of Rohypnol on people and regarding the results of the urine test on Haygood. Finally, Sera argues that the trial court erred in admitting the videotape because of tampering.
Standard of Review
A directed-verdict motion is a challenge to the sufficiency of the evidence. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999); Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). We consider sufficiency of the evidence before addressing other alleged trial errors. The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. On appeal, we will review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support the verdict. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Only evidence supporting the verdict will be considered. It is important to note that the court will make no distinction between circumstantial and direct evidence when reviewing for sufficiency of the evidence. However, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Whether the evidence excludes every hypothesis is left to the jury to determine. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). Guilt may be proved in the absence of eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994).
The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the trial court, and we will not reverse absent a showing of manifest abuse. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 520 U.S. 1244 (1997). Corre spondingly, the trial court has the discretion to determine whether prejudicial evidence substantially outweighs its probative value, and its judgment will be upheld absent a manifest abuse of discretion. Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998).
Our State’s statutes are presumed constitutional, and the burden of proving otherwise is placed on the party challenging the legislative enactment. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997); McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). We resolve all doubts in favor of a statute’s constitutionality. Golden v. Westark Community College, 333 Ark. 41, 47, 969 S.W.2d 154 (1998).
A ruling of admissibility under the rape-shield statute will not be overturned absent clear error or a manifest abuse of discretion. Graydon v. State, 329 Ark. 596, 953 S.W.2d 45 (1997). The admission of expert testimony under Ark. R. Evid. 702 is reviewed under an abuse-of-discretion standard. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). We will not reverse a trial court’s ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). We will not reverse the trial court’s ruling on the admission of evidence absent an abuse of discretion. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998); Smith v. Galaz, 330 Ark. 222, 953 S.W.2d 576 (1997); Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992).
I. Sufficiency of the Evidence
In his first point, Sera argues that as to counts three, four, and five, all involving the “Macaroni Grill” incident with Deal, that the jury had insufficient evidence on which to convict him of introduction of a controlled substance into Deal (count three), kidnapping Deal (count four), and rape (count five). Sera first attempts to clarify for which counts he sought directed verdicts. He avers that his directed-verdict motion dealt exclusively with the “Macaroni Grill” incident and that the clear purpose of the motion was to challenge the evidence for allegations which did not appear on videotape and for which he was convicted of rape. Regarding the “Macaroni Grill” incident, Sera argues that the evidence is purely speculative in that there were no witnesses, and Deal herself could not say whether she had engaged in intercourse that night. Sera argues that since the evidence showed Deal had been drinking it was more likely that she had too much alcohol to drink than that she had been drugged. Sera points out that Deal’s testimony acknowledged that in this incident, as well as the “Monticello” incident and the trip to the casino in Greenville, Mississippi, that she had been drinking. Sera argues that Deal testified that she maybe had drunk too much on the trip to Greenville when she had a lapse in memory, but that Sera has not been charged with that incident. Sera contends that the only evidence regarding the “Macaroni Grill” incident includes Deal’s testimony that she vaguely remembers feeling sick at the restaurant after dinner, going to the car from the restaurant, and waking up in the Burnett House wearing a long t-shirt of Sera’s and feeling sick to her stomach. Sera maintains that the only “evidence” used to support these convictions stems from the Rule 404(b) evidence admitted regarding Sera’s pattern and plan with other alleged victims, but that this type of evidence cannot be used to prove guilt.
The State counters by first arguing that Sera did not make a sufficient directed-verdict motion at the close of the State’s and of the defense’s cases to preserve this argument for appeal. Specifically, the State notes that while Sera argues on appeal that the challenge in the directed-verdict motion was on counts three, four, and five, that the actual challenge at trial was on counts one, two, and five, involving the “Monticello” incident charges. The State also notes that at the close of all of the evidence, Sera’s renewed directed-verdict motion sought to “add” for exclusion the drugging counts and the kidnapping counts as to Deal. As such, the State argues that Sera did not preserve the challenge to the sufficiency of the evidence on these counts because he failed to properly raise them in his motion for directed verdict. With respect to Sera’s directed-verdict motion as to count four (kidnapping), we agree with the State that he has failed to preserve it for appellate review. Sera did not raise count four in his initial directed-verdict motion; in order to preserve sufficiency of evidence as an issue for appellate review, it must be raised at the close of the State’s case and renewed at the close of all the evidence. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); See also, Ark. R. Crim. P. 33.1. Appellant failed to do this with regard to the kidnapping charge. Therefore, the sufficiency challenge was not preserved. However, we hold as to counts three and five that Sera did preserve challenges to the rape and introduction of a controlled substance in conjunction with the “Macaroni Grill incident.”
On the merits of the sufficiency argument, the State argues that sufficient evidence does exists to affirm the jury’s convictions. The State details three episodes involving Deal, including the “Monticello” incident, which was depicted on the videotape, the Greenville trip, and the “Macaroni Grill” incident, which is the subject of this sufficiency challenge. The State notes that Deal testified that in each incident, she was given a drink or several drinks mixed by the defendant and that in each incident she had lapses in memory and felt sick. Regarding the “Macaroni Grill” incident, Deal testified that she only drank approximately one-and-a-half beers and a glass of wine at dinner, but began to feel sick afterwards. She testified that she had a lapse in memory immediately after leaving the restaurant and woke up the next morning in a bedroom at the Burnett House, dressed in a long t-shirt. Deal testified that she felt sick, and remained sick for the rest of the day. The State also details evidence of other encounters that Deal had with Sera, as well as evidence regarding Sera’s encounters with other alleged victims. The State asserts that Sera admitted to having Rohypnol, and that he admits “accidentally” drugging Jackie Haygood, who experienced the same symptoms that Deal experienced during the “Macaroni Grill” incident. The State notes that Sera’s explanation to each alleged victim was that they had consumed too much alcohol, despite the fact that in most instances, the victims testified that they had not had much to drink. The State notes that, based upon the expert testimony, Deal would not be able to remember the “Macaroni Grill” incident because Rohypnol prevents victims from recalling most or all events once the drug takes effect. The State argues that reversing the conviction based on Deal’s inability to recall the events of that night would allow Sera to have “planned, executed and been held blameless for the ‘perfect rape’.” The State argues that Sera’s statements about Deal were improbable statements explaining suspicious circumstances and, therefore, are admissible as proof of guilt, citing Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Furthermore, they are admissible as indicative of attempts to conceal a crime. Brown v. State, 311 Ark. 579, 847 S.W.2d 1 (1993). Finally, the State argues that the jury could have been confused about which episode was depicted on the videotape, and that variances and discrepancies in the proof go to the weight and credibility of the evidence, and are matters for the fact finder to decide. In addition, the State argues that if this court determines that the evidence was not sufficient to support a rape conviction, the charge can be reduced to one of attempted rape.
Regarding the sufficiency of the evidence on counts three and five, we hold the evidence to be sufficient. The evidence was not such that the jury was reduced to mere speculation and conjecture. It was not speculation for the jury to believe Deal’s testimony that she had not had too much to drink. Nor was it conjecture for the jury to believe that Deal’s lack of memory was due to a documented side effect of Rohypnol ingestion known as anterograde amnesia. As Dr. Tolliver, testified, “While you are actually under the effect of the drug, you may not remember some of the things you do or some of things that are done to you or what conversations you have or what is, what your experiences are.” Dr. Tolliver further stated, “You can actually be functioning. You can be talking. You can be carrying on a conversation just like we are now and you may remember a litde bit of it or you may, even may remember all of it or you may remember none of it or you may remember part of it.” Regarding the “Macaroni Grill” incident, Dr. Tolliver stated that Deal’s complaints of not being able to remember the trip home from the restaurant, and the stomach pains and cramping she experienced, would also be consistent with Rohypnol ingestion, especially when taken with alcohol. The sickness she felt was consistent with Deal’s experience after the “Monticello” incident in which the videotape shows unequivocally that she was unconscious throughout most of the sexual encounter and, in fact, snored occasionally. The evidence showed that during the relevant time period Sera had access to the drug Rohypnol. Clearly, Sera had the opportunity, the scheme, or plan in place, and he had already carried it out on one prior occasion with Deal. The jury could reasonably conclude that Deal’s surprise awakening the next morning in Sera’s bed in a state of relative undress to be consistent with sexual activity of a nonconsensual nature.
Sera offered to the jury a hypothesis consistent with his innocence, i.e., that Deal merely had too much drink, that no sex occurred, and that Deal was participating in a conspiracy against him. However, the jury did not have to accept it as a reasonable hypothesis and apparently rejected it. We cannot say that they did so without substantial evidence. We havelong held that the trier of fact is free to believe all or part of a witness’s testimony. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). The credibility of witnesses is an issue for the jury and not for this court. Marta v. State, 336 Ark. 67, 74, 983 S.W.2d 924, 928 (citing Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998)). Further, the jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. Bell, supra.
II. Arkansas Rule of Evidence 404(b)
In his second point on appeal, Sera argues that the trial court erred in admitting evidence under Ark. R. Evid. 404(b) because, while the court carefully analyzed the competing interests in making its Rule 404(b) determination, the admission of the evidence was more prejudicial than probative, resulting in a guilty verdict based on this evidence. Specifically, Sera notes that the trial court conducted a “lengthy 404(b) hearing” and issued a seven-and-one-half page order allowing in the videotape evidence and the testimony of Hataway and Coleman. However, Sera argues that the trial court erred in determining that this evidence was more probative than prejudicial under Ark. R. Evid. 403. Sera maintains that the fact that the jury convicted him of rape in the “Macaroni Grill” incident clearly shows that the jury used the Rule 404(b) evidence as proof of guilt. The State argues that the videotape and testimony of Hataway and Coleman were offered to show Sera’s modus operandi, a legitimate and permissible reason for admission of the evidence under Rule 404(b). Because each episode with each victim was so similar, the evidence was highly probative and far outweighed any prejudice.
Two evidentiary rules come into play when considering whether prior acts of the defendant will be admitted: Rule 404(b) and Rule 403. First, Rule 404(b) controls when other crimes, wrongs, or acts may be admitted into evidence despite the general exclusion. Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
We have previously recognized that this list of exceptions is not exclusive but instead represents examples of circumstances where other acts are admissible and relevant. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994). Under Rule 403, evidence of prior crimes, wrongs, or acts, even if admissible under Rule 404(b), will not be admitted if the admission of -such evidence is substantially outweighed by the danger of unfair prejudice. Id. In order to be admissible under Rule 404(b), the evidence must be “independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible with a proper cautionary instruction by the court.” Lindsey, supra, at 138. If the appellant did not ask for a cautionary instruction, he can claim no error on appeal. Id. In addition, the prior uncharged act to be admitted must have a “very high degree of similarity” with the charged crime. Edwards, supra.
When a trial court has admitted evidence under 404(b), we will not reverse absent a showing that the court manifestly abused its discretion. McGehee, supra. Sera acknowledges that the court thoroughly and thoughtfully considered the matter and determined that the evidence was both relevant and less prejudicial than probative. However, Sera considers the court to have abused its discretion. We disagree. In considering modus operandi, we do consider conduct in an unrelated incident against a third party. See, e.g., Dillon, supra.; Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987). The test used by this court is uniqueness of the methodology employed and striking similarity. Id. Indeed, in this case there was a striking similarity in Sera’s conduct with respect to each of the women who testified. The evidence introduced through and about Coleman and Hattaway was highly relevant to prove Sera’s modus operandi, scheme, or plan, from the initial courting of each of these women to the manner in which he ended each of the sexual episodes on the videotape with a similar degrading sex act. Each woman testified similarly to the way he flattered them, showered them with gifts, mixed their drinks, and his common explanation for their lost memories. We cannot say the trial court abused its discretion in admitting this evidence.
III. The Arkansas Rape Shield Statute
For his third point on appeal, Sera makes a two-part argument under Ark. Code Ann. § 16-42-101, also known as the Arkansas Rape Shield Statute. First, Sera argues that testimony he offered in which he alleged that he and Haygood had engaged in oral sex several weeks before she drank the Rohypnol-laced drink should not have been excluded because it was relevant under Ark. R. Evid. 401-403. Second, Sera argues that the statute was improperly adopted by the legislature or is unconstitutional under the separation of powers doctrine and his Sixth Amendment rights to produce witnesses, testify, and present a defense.
The State responds on this point by noting that this case illustrates precisely the prudence of a rape-shield statute. The legislature enacted it to prohibit a defendant from raising uncorroborated accounts of previous sexual encounters with the victim. The State argues that the alleged evidence of a prior sexual encounter was irrelevant where Haygood denied the encounter and Sera denies even attempting to have sex with Haygood in the episode at issue in the trial. Furthermore, regarding the legitimacy of the statute, the State argues that this court has the prerogative to adopt the rape shield statute as a rule, but that the court has also deferred to and acknowledged the legislature’s responsibility for amending the statute and has even recognized appeals under the statute in the criminal procedure rules. Finally, this court has recognized that the right to present a defense is not without limitation, and that this statute is an authorized limitation in appropriate circumstances of that right.
The State is correct that the trial court’s exclusion of evidence of the victim’s prior sexual conduct was proper. Ark. Code Ann. § 16-42-101 regulates the type of evidence that can be admitted in a case involving sexual offenses. The statute defines “sexual conduct” as “deviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined by § 5-14-101.” Under § 5-14-101, these terms all involve some form of physical touching by a perpetrator against a victim. In criminal prosecutions for sexual crimes, the rape-shield statute prohibits the introduction of
opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person, evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
Ark. Code Ann. § 16-42-101(b). In order to introduce information that may fall under the statute, the defendant is required to file a motion in the trial court at least three days prior to trial, after which the court will hold a hearing to determine the relevancy and admissibility of the information. Ark. Code Ann. § 16-42-101 (c). Sera did so, but the trial court ruled that the only purpose in offering this evidence was to cast Haygood in a bad light. Such is the case here, in that the allegation of a prior oral sexual encounter between Sera and Haygood, which Haygood denies, has nothing to do with the episode prosecuted in this case. First, the allegation of the prior encounter is the very type contemplated to be excluded under the statute. Sera asserted at the pretrial hearing on admission of the evidence that introduction of the alleged encounter would show why he spent time with Haygood. However, Sera had already testified that he, along with Haygood’s husband, and Haygood were working together to set up the lumber mill in Warren and thus spent considerable time together during the set-up of the mill. Second, Sera’s defense to the episode prosecuted in counts six, seven, and eight was that he “mistakenly” drugged Haygood with Rohypnol meant for himself, and that he had no intention of committing any sexual act with Haygood. This explanation renders the introduction of any prior alleged sexual encounter with Haygood completely irrelevant. As such, the trial court properly rejected the admission of the evidence under the statute.
We also reject Sera’s challenges to the constitutionality of the rape-shield statute. We have previously determined that the rape-shield statute is constitutional and that it does not violate due process or equal protection rights. See Kemp v. State, 270 Ark. 835, 606 S.W.2d 573 (1980); See also, Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979); Dorn v. State, 267 Ark. 365, 368, 590 S.W.2d 297 (1979). We do not view the statute as having supplanted this court’s rulemaking power and ability to control the courts. Sera offers no authority that this court has shown any inclination to reject the rape-shield statute as a legislative intrusion into the court’s province.
IV Expert Testimony
In his fourth argument, Sera argues that the trial court erred in allowing one of the State’s experts, Dr. ElSohly, to testify as to the effects of Rohypnol on people, and as to Haygood’s urine sample test results since he did not conduct the test. On the first point, Sera argues that the trial court should not have allowed Dr. ElSohly to testify regarding the effects of Rohypnol on people because, by his own admission, he had not studied the effects of Rohypnol on humans. On the second point, Sera argues that Dr. ElSohly should not have been able to testify regarding the results of Haygood’s urine test because he, himself, did not perform the test and none of the “safeguards” were present, but instead he just read the report of the test which was performed by someone in his lab.
To the contrary, the State argues that the trial court did not abuse its discretion in allowing Dr. ElSohly to testify because he is a recognized expert in the field of pharmacology, the science of the effect of drugs on the human body. Moreover, he had studied the effects of the drug. Although he acknowledged that he had not viewed a person under the influence of the drug. He had, however, researched and read studies detailing the effects on people. Furthermore, the State argues that this court will allow an expert to testify regarding evidence made known to him before trial, and that case law also recognizes that an expert who supervised a technician performing a test could testify about the results after independent review of those results.
Ark. R. Evid. Rules 702 and 703 govern the admission of testimony of expert witnesses. Rule 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Rule 703 states:
The facts or data in the particular case upon which .an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Whether a witness qualifies as an expert in a particular field is a matter within the trial court’s discretion, and we will not reverse such a decision absent an abuse of that discretion. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997); Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997). If some reasonable basis exists demonstrating that the witness has knowledge of the subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Id. The general test of admissibility of expert testimony is whether it will assist the trier of fact in understanding the evidence presented or determining a fact in issue. Ark. R. Evid. 702; Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997); Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). In addition, expert testimony must be relevant and not misleading or confusing to the jury. Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). In determining the relevance of the testimony, the proponent must show that the evidence is reliable and sufficiently related to the facts of the case to aid the trier of fact in resolving the dispute. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).
We hold that Dr. ElSohly was properly qualified as an expert in the field of pharmacology, and specifically on the matter of the drug Rohypnol. In fact, as Dr. ElSohly testified, his private lab was hired by Hoffman-LaRoche, the drug manufacturer of Rohypnol, to develop testing procedures to detect the presence of the drug in humans. Dr. ElSohly’s testimony detailed the physiological effects of the drug on humans. Dr. ElSohly’s familiarity with the effects of the drug came from his testing and research. He noted that Rohypnol was found to actually induce hypnosis, total muscle relaxation, total loss of sensation, and total loss of memory. He, like Dr. Tolliver, noted that the combination of Rohypnol and alcohol serves to magnify the effects of the drug. Furthermore, based on his knowledge of the physiological effect of the drug on the human body, he found that the testimony offered by the victims was consistent with the ingestion of the drug and the resulting disabilities produced by the drug. When asked if he had an opinion about whether the victims on the tape had ingested Rohypnol, Dr. Elsohly testified that while he couldn’t specifically say that they had ingested Rohypnol in particular, he could say that their conditions were consistent with being under the influence of a drug that produces similar results to Rohypnol.
As noted above, if some reasonable basis exists demonstrating that the witness has knowledge of the subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Mace, supra. Here, it is clear that Dr. ElSohly has developed a far-reaching knowledge of the drug and its effects. The fact that he has never witnessed a person under the influence of the drug would go to the credibility of the evidence, not the admissibility7. “Once an expert witness is qualified, the weakness in the factual underpinning of the expert’s opinion may be developed upon cross-examination and such weakness goes to the weight and credibility of the expert’s testimony.” Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30 (1999) (quoting Suggs v. State, 322 Ark. 40, 43, 907 S.W.2d 124, 126 (1995) (citing Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir.), cert. denied, 426 U.S. 907 (1976)).
Regarding Dr. ElSohly’s testimony on the results of the urine test, the State points out that Goff, supra, is almost directly on point. In Goff, the defendant argued that the expert in that case should not have been allowed to testify regarding the results of a DNA blood test because the test had been performed by technicians under the supervision and control of a different supervisor who had prepared the DNA report. Goff argued that it was objectionable hearsay to allow the expert to testify concerning the test results and opinions in the report. In other words, the expert, using the supervisor’s report, gave an opinion about the DNA results.
In finding that the trial court did not abuse its discretion in allowing the expert’s testimony into evidence at trial, we noted that the expert supervised the person who performed the test and independently reviewed the test results. Under their office protocol, the expert had to approve all results and conclusions that are reached at that lab. The court noted that under Ark. R. Evid. 703 an expert can render an opinion based on facts and data otherwise inadmissible, including hearsay, as long as they are of a type reasonably relied upon by experts in the field. In addition, when an expert’s testimony is based on hearsay, we have held that the lack of personal knowledge on the part of the expert does not mandate the exclusion of the testimony, but instead it presents a jury question as to the weight of the testimony. Scott v. State, 318 Ark. 747, 888 S.W.2d 628 (1994).
Such was the case here as Dr. ElSohly independently reviewed the urine sample results and signed off on the test results. Furthermore, Dr. ElSohly developed the very testing procedures used to detect the metabolites indicating that Rohypnol is present in the sample. The trial court did not abuse its discretion in allowing Dr. Elsohly to testify about the test results. It was for the jury to weigh the credibility of the evidence based on the fact that he did not actually perform the test, but instead reviewed the testing procedures and signed off on the report.
V. Admission of the Videotape
Sera’s final issue on appeal is his contention that the trial court erred in admitting the videotape showing three episodes in which Sera engaged in intercourse and performed other sex acts with three women who are all indisputably unconscious. Sera argues that the evidence was uncontroverted that the tape had been edited and altered and, therefore, the tape was inadmissible as being unreliable. Sera asserts that the full videotape would have shown all three women being fully aware when the taping began, and only becoming unconscious during the middle of the taping of each episode. The State counters this argument by noting that Sera’s testimony is in irreconcilable conflict with that of the victims depicted on the videotape who all testified that they were never aware that they were being taped and did not ever consent to being taped. The State further notes that Sera’s own expert indicated that Sera was the original “editor” of the tape and, as such, the judge could conclude that Sera did all of the editing. Finally, the State argues that Sera did not dispute what was on the videotape, thus authenti eating the tape himself pursuant to Ark. R. Evid. 901(a). Any testimony concerning the alleged editing goes to the weight the jury should give the evidence.
Rule 1001 of the Arkansas Rules of Evidence includes “video tapes” in the definition of admissible items at trial. Rule 1002 requires the original to be produced, if available. This rule states:
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by [rules adopted by the Supreme Court of this state or by] statute.
Rule 1003 details when duplicates may be admitted, and states:
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity or continuing effectiveness of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
On appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion nor will we reverse absent a showing of prejudice. Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 519 U.S. 898 (1996). The real dispute here arises from the testimony of Sera’s witness who testified that it appeared that the videotape had been edited. The expert, Mike Narisi, testified on two occasions. He first testified before the State showed the video when the defense made an objection to the admissibility of the tape because of the alleged alterations. After the trial court ruled that the tape was admissible, Narisi testified during Sera’s case, and again alleged that the tape had been edited. On both occasions, Narisi testified that he owned a video production company and had spent twenty-five years in the video and television industry. Narisi testified that he viewed both the original and a copy of the tape, and found only one instance of an “edit” which he believed was not performed using the video camera. He testified that the scenes themselves showed no editing, and that the break between the first and second episodes was accomplished by turning the video camera off and then back on. However, Narisi testified that the break between the second and third episodes was accomplished by a different piece of video equipment, perhaps a VCR or more sophisticated piece of equipment, but that it was impossible to tell who made the edit or how it was done.
Based on this testimony, it appears that the expert only saw one point of dispute on the tape but was not able to give any definitive details regarding how that edit occurred. In fact, by his testimony, it appears that Sera was as likely as any other person to have performed the edit. Furthermore, the edited portion only relates to the break between the second and third episodes, but the episodes themselves, especially the first and second, were not altered according to the expert. Narisi testified that from the beginning of the first episode to the end of the second episode, any pauses or breaks were accomplished by using the video camera stop or pause functions.
Sera cites several cases for the proposition that this court has excluded film or videotape when the “conditions they claimed to represent were sufficient to make the file and videotape inadmissible.” Sera cites Utley v. Heckinger, 235 Ark. 780, 362 S.W.2d 13 (1962) and Carr v. Suzuki Motor Co., 280 Ark. 1, 655 S.W.2d 364 (1983), both of which dealt with the admissibility of evidence on film. In Carr, we reversed the trial court and excluded film evidence which contained a reenactment of a wreck prepared by one of the parties. We found that the film was prejudicial and misleading under Rule 403. The film in that case was not a film of the actual event, but a recreation. In Utley, we determined that a “day-in-the-life” film showing a victim of a car wreck walking with a cane should be excluded in part because the last few feet of the film showed the victim walking faster than she was actually moving. While the trial court gave an instruction to the jury to not consider the last section of the film, we determined without giving a reason that it was better not to show that part of the film at all. These cases are distinguishable from the instant case on the facts. In Carr, the film offered into evidence did not depict the actual events at all, but instead recreated inconsistendy the original crash. In Utley, while the film was of the victim, the last few feet of film misrepresented her actual condition. Neither situation is present here. Instead, the videotape in this case depicts the actual events in each episode without any editing of the episodes themselves. By Sera’s own testimony, these episodes depict the actual events which occurred on each occasion. Whether more occurred before or after these episodes would go to the credibility of the witnesses, as Sera testi fled that each woman was active before and after the videos were shot, and each woman testified that she had no idea that she was being filmed or that she had even had sexual relations with Sera on those occasions. The jury could make a reasonable judgment on the actions of the participants during the scenes contained in the videotape.
Sera further attempts to argue that this case is similar to Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997), in which we found that evidence admitted at trial on the type of drug found on the defendant was improperly admitted. In Crisco, we addressed a chain-of-custody dispute in that the drugs described by the seizing officer were very different from the drugs described as being tested by the lab. While this court determined that there was no significant break in the chain of custody, the descriptions of the seized and tested drugs was so substantially different as to render the evidence inadmissible. Here, however, the testimony regarding the evidence of possible editing of the tape still does not alter the fact that Sera verified the authenticity of the action taking place on the tape. We find no error in the admission of the videotape nor in any of the other points raised by Sera on appeal and accordingly, affirm.
Affirmed.
BROWN and Imber, JJ., concurring in part and dissenting in part.
ROBERT L. Brown, Justice.
I agree with every aspect of tmajority ice. except one. I fail to see how the evidence was sufficient to prove the rape of Tammy Deal in the “Macaroni Grill” count.
The State presented the following evidence to prove the Macaroni Grill rape:
• That Tammy Deal drank one-and-a-half beers and a glass of wine at dinner and began to feel sick later.
• That she does not remember anything after leaving the restaurant until the following morning when she woke up at the bed-and-breakfast in Warren.
• That she was dressed in a long t-shirt when she awoke at the bed-and-breakfast and felt ill the rest of the day.
There was no proof of any sexual encounter offered in connection with this incident. The video tapes depicted proof of rapes involved in other counts.
The State argues that proof of other criminal wrongs such as the Rohypnol-induced rapes of Ms. Deal in the Monticello count and Jackie Haygood as well as Patty Coleman in Missouri, which involved similar surrounding circumstances, provide substantial evidence that Ms. Deal was raped following dinner at the Macaroni Grill. The foundation for the State’s position is Ark. R. Evid. 404(b) which reads:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
What Rule 404(b) does not say is that proof of other crimes can be used to prove that a particular criminal act was committed.
What is absent in the State’s case is any proof that the act of rape ever occurred. Rule 404(b) may provide for proof of intent based on other criminal wrongs but not proof of the act itself. In every criminal case, the State must prove corpus delicti, that is, that an unlawful injury occurred. 1 CHARLES E. TORCIA, WHARTON’S CRIMINAL law, § 28 (15th ed. 1993); Johnson v. State, 298 Ark. 617, 770 S.W.2d 128 (1990). The primary reason that the State must prove corpus delicti is to insure that a person is not convicted of a crime that was never committed. Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990).
We run a great risk when we presume criminal conduct and convict a person for a crime based on other similar crimes committed by that person, when there is no proof that the criminal act ever occurred. This court has made it clear that we do not presume criminal conduct; rather, that is a matter of proof for the State. Johnson v. State, 198 Ark. 871, 131 S.W.2d 934 (1939); see also Ark. Code Ann. § 16-89-lll(d) (1987) (confession must be supported by proof a crime was committed). The State’s burden was to prove the act of rape in connection with the Macaroni Grill count and this it failed to do. I would reverse the judgment of conviction for rape in the Macaroni Grill count.
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Annabelle Clinton Imber, Juin this criminal case.
This is the second appeal in this criminal case. appellant, Johnny Paul Dodson, appeals his second conviction for the offenses of possession of a controlled substance (methamphetamine) with intent to deliver and possession of a controlled substance (marijuana). He asserts five points of error. We find no error and affirm.
Mr. Dodson was arrested during a traffic stop in Brinkley, Arkansas, while driving a car that was owned by Gwen McCullum. Mr. Dodson was accompanied by two other passengers: James Martin and Ricky Bennett. Officer Ed Randle of the Brinkley Police Department had stopped the vehicle driven by Mr. Dodson after he observed the vehicle make a right turn at a high rate of speed without a turn signal, and after he noticed something being thrown out of the passenger window, which later turned out to be a cigarette butt. The officer approached the driver’s side of the vehicle and asked to see Mr. Dodson’s driver’s license. Mr. Dodson responded that he did not have a driver’s license. Shortly thereafter, Officer Randle ordered Mr. Dodson and his passengers out of the car. Mr. Dodson was then taken into custody and placed in the officer’s patrol unit.
When the vehicle no longer had any occupants, Officer Randle could see a brown leather satchel sticking out from under the right side of the passenger’s seat, where Mr. Bennett had been sitting. During a search of the vehicle, Officer Randle opened this leather satchel and found green vegetable matter that field-tested positive for marijuana and “a granule type matter, kind of off-white brownish” that field-tested positive for methamphetamine. The methamphetamine had been packaged in several smaller packets and then placed inside the leather satchel. Upon finding the contraband, Officer Randle glanced toward his patrol unit and saw some wild movement. He returned to his unit, removed Mr. Dodson from the vehicle, and noticed a large bulge in the crotch area of Mr. Dodson’s pants. In order to be sure the bulge was not a weapon, Officer Randle reached inside Mr. Dodson’s pants and found $6,000.00 cash.
Mr. Dodson was charged by information with three felony offenses, namely possession of methamphetamine with intent to deliver the substance, Class Y felony; possession of marijuana, Class C felony, and being a felon in possession of a firearm, Class D felony. He was also charged with two traffic violations. Mr. Dodson was tried before a jury and convicted on all counts with the exception of the firearm charge. Judgment was entered by the trial court, sentencing him to a term of imprisonment for fifty years. We affirmed that judgment in Dodson I, but stated that “nothing in this opinion should be construed as prohibiting Appellant from filing a proper petition for postconviction relief pursuant to A. R. Cr. P. 37.” Dodson I, 326 Ark. at 644, 934 S.W.2d at 202.
On February 3, 1997, Mr. Dodson filed a petition for post-conviction relief pursuant to Ark. R. Crim. P. 37 in the Circuit Court of Monroe County and alleged ineffective assistance of counsel. The trial court entered an order on June 16, 1997, which granted the Rule 37 petition and granted Mr. Dodson a new trial. Prior to his second trial, Mr. Dodson filed a motion in limine seeking to suppress all items seized during the search of the car. That motion was denied by the trial court after it held a suppression hearing on February 8, 1999. Mr. Dodson’s second jury trial began on February 10, 1999, and culminated in his second conviction on the felony offenses of possession of methamphetamine with intent to deliver and possession of marijuana, and the misdemeanor traffic offenses. He was sentenced to twenty-five years in the Arkansas Department of Correction on the felony offense of possession of methamphetamine with intent to deliver, and he received fines totaling $5,300 on the other felony and misdemeanor offenses. On appeal, Mr. Dodson raises five points of error.
1. Sufficiency of the Evidence
Mr. Dodson contends that his motion for a directed verdict of acquittal on the drug possession charges should have been granted. Although this argument is Mr. Dodson’s fifth point on appeal, the preservation of an appellant’s right to freedom from double jeopardy requires that we review the sufficiency of the evidence before addressing other alleged trial error. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); Lee v State, 326 Ark. 229, 931 S.W.2d 433 (1996). Specifically, Mr. Dodson contends that “if the testimony of Ricky Bennett is disregarded, as argued in [Mr. Dodson’s second point on appeal], the proof at trial was insufficient to establish [Mr. Dodson’s] constructive possession of the drugs.” However, in determining the sufficiency of the evidence, we review all of the evidence that was introduced at trial, and we disregard any alleged trial errors. Lee v. State, supra; Eichelberger v. State, 323 Ark. 551, 916 S.W.2d 109 (1996). Consequently, the testimony of Ricky Bennett cannot be excluded from our review of the sufficiency of the evidence. By making his argument contingent on the exclusion of Mr. Bennett’s testimony, Mr. Dodson apparently concedes that there was substantial evidence to support the drug convictions when Mr. Bennett’s testimony is considered.
We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). 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 resort to speculation or conjecture. Id.
It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). Possession of drugs can be proved by constructive possession. Id. Although constructive possession can be implied when the drugs are in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Id. There must be some other factor linking the accused to the drugs:
Other factors to be considered in cases involving automobiles occupied by more than one person are: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused’s personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion or control over it; and (5) whether the accused acted suspiciously before or during the arrest.
Id. at 207, 884 S.W.2d at 600.
In this case, there was joint occupancy of the automobile, but Mr. Dodson exercised dominion or control over the vehicle, in that he was the driver. Furthermore, although the contraband was not found on the same side of the vehicle where Mr. Dodson was sitting, it was found in close proximity to Mr. Dodson. Moreover, Mr. Dodson acted suspiciously during his arrest, as evidenced by Officer Randle’s testimony that Mr. Dodson was making wild movements while seated in the patrol unit. Additionally, Officer Randle found approximately $6,000 in cash hidden on Mr. Dodson’s person. All of these factors link Mr. Dodson to the drugs that were found in the car. Finally, when we consider the testimony of Ricky Bennett in the light most favorable to the State, there was substantial evidence of Mr. Dodson’s possession of the drugs. According to Mr. Bennett’s testimony, he had previously testified at his own trial that his uncle, Mr. Dodson, handed him the drugs that were found under the seat. Based on this record, we cannot say that the trial court erred when it denied Mr. Dodson’s motion for a directed verdict.
2. Authentication of Evidence
Mr. Dodson argues that the admission into evidence of (1) a small Ziplock bag containing several smaller bags of off-white particles, and (2) a report by the Arkansas State Crime Laboratory identifying the contents of the Ziplock bag as methamphetamine, was an abuse of discretion by the trial court. In support of this argument, he asserts that the State failed to properly authenticate the substance in the Ziplock bag because of varying descriptions of the substance by State’s witnesses. In response, the State suggests that Mr. Dodson’s argument is barred because his abstract only indicates that he made a general objection to the challenged exhibits when they were offered into evidence. We agree.
The record on appeal is confined to that which is abstracted. Martin v. State, 337 Ark. 451, 989 S.W.2d 908 (1999). It is the appellant’s burden to provide both a record and an abstract sufficient for appellate review. Porter v. Porter, 329 Ark. 42, 945 S.W.2d 376 (1997). We will not entertain an argument when it cannot be determined from the abstract what arguments were made to the lower court. Id. Here, Mr. Dodson’s abstract merely states that the challenged exhibits “were admitted into evidence over the objection of the defendant.” From such general language, we cannot determine what arguments were made to the lower court. Furthermore, this court has made clear that a specific objection is necessary in order to preserve an issue on appeal. Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998).
We note that Mr. Dodson’s abstract indicates that his motion for a directed verdict was partially based on “the discrepancy of descriptions of the controlled substance [.]” We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). Thus, Mr. Dodson was not challenging the admissibility of particular evidence when he sought, by a directed-verdict motion, to have the charges dismissed because of the State’s purported failure to authenticate the challenged exhibits. According to Mr. Dodson’s abstract, this appeal is the first time he argues that the challenged exhibits were inadmissible because of the State’s alleged failure to authenticate them. We will not address arguments raised for the first time on appeal. Tucker v. State, 336 Ark. 244, 983 S.W.2d 956 (1999). Even if Mr. Dodson’s directed-verdict motion were interpreted as an authentication objection to the admissibility of the challenged exhibits, his argument would be barred because, according to his abstract, the authentication objection was not made when the State offered those exhibits into evidence. Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992).
We therefore conclude that Mr. Dodson is procedurally barred on the authentication issue. Accordingly, we must affirm on that issue.
3. Fifth Amendment Privilege
Mr. Dodson next argues that the trial court erred when it allowed the State to call Mr. Dodson’s nephew, Ricky Bennett, as a witness. Specifically, he contends that the trial court should have allowed Mr. Bennett to invoke his Fifth Amendment privilege against self-incrimination. Alternatively, Mr. Dodson asserts that the trial court erred when it refused to grant a mistrial during Mr. Bennett’s testimony.
Mr. Bennett was a passenger in the car that Mr. Dodson was driving when he was arrested. Mr. Bennett was also arrested and charged with possession of drugs. He was, however, tried separately and acquitted of possession of the drugs found in the satchel under the passenger seat, but convicted of possession of drugs found on his person. Mr. Bennett’s trial occurred after Mr. Dodson’s first trial and before the second trial.
The State called Mr. Bennett as a witness at Mr. Dodson’s second trial. Upon taking the stand, Mr. Bennett immediately asserted his Fifth Amendment right not to incriminate himself. After the trial court allowed the State to begin its direct examination of Mr. Bennett, he answered several questions about events leading up to the traffic stop. However, when the State asked whether anything transpired between the witness and Mr. Dodson just before the vehicle was stopped by the police officer, Mr. Bennett once again asserted his Fifth Amendment privilege against self-incrimination. At that point, Mr. Dodson objected to the trial court ordering Mr. Bennett to answer the State’s question. Mr. Dodson also moved for a mistrial on grounds that the State improperly called Mr. Bennett as a witness knowing that the witness would invoke his Fifth Amendment privilege. The State responded that Mr. Bennett did not have the right to invoke the Fifth Amendment because he had already been acquitted of possession of the drugs found in the satchel. Thus, according to the State, he was not in jeopardy and could not incriminate himself on that drug charge. Mr. Dodson countered that Mr. Bennett had given conflicting testimony at his own trial and at Mr. Dodson’s first trial, such that he could be charged with perjury if he were forced to affirm either of his prior statements. The trial court overruled Mr. Dodson’s objection and denied his motion for mistrial.
The State proceeded with its direct examination of Mr. Bennett. Although the trial court instructed the witness to answer the State’s questions, he persistently refused to respond to the State’s questions regarding his prior testimony, and, at one point, began once again to assert the Fifth Amendment in response to the State’s questions. The trial court then removed the jury from the courtroom and allowed questioning to continue outside of the jury’s presence. The trial court also advised Mr. Bennett that he would be held in contempt of court if he persisted in asserting the Fifth Amendment. Mr. Bennett stopped invoking the Fifth Amendment at that point, but continued to be unresponsive. The State’s questioning continued until Mr. Bennett finally testified that someone had handed him the package and he put it under the seat that night. He could not, however, say whether his uncle, Mr. Dodson, was the person who handed him the package. While he admitted to testifying at his own trial that Mr. Dodson gave him the package, Mr. Bennett now testified that he could not recall who gave him the package.
The State’s questioning of Mr. Bennett resumed thereafter in the presence of the jury:
Q. Mr. Bennett, on the night of September the 11th, 1995, where did you get the drugs that were found beneath your seat on the passenger side of that vehicle?
A. In my testimony in my trial, I stated that those drugs were handed to me by my uncle.
Q. Is that the truth as you recall it?
A. That is my testimony at my trial that happened at my trial.
Q. Is that the truth as you recall it, sir?
A. That was my testimony.
The State then tendered the witness, and Mr. Dodson’s attorney proceeded to conduct a thorough and extensive cross-examination of Mr. Bennett. During that cross-examination, Mr. Bennett admitted that he had given conflicting testimony regarding the drugs in the leather satchel:
Q. ... [I]n October of 1995, two months after this occurred, you gave sworn testimony that you knew nothing about any drugs, didn’t you?
A. Yes, sir.
Q. That no one ever conversated about any drugs, no one ever said anything about any drugs, you didn’t know how they got into the car. I’m sorry?
A. Yes, sir.
Q. But then in your trial in June, you said that someone threw the drugs and hit you in the chest, is that right?
A. Yes, sir.
Q. Is there anyway to know if you’re telling the truth if (sic) the first time you gave sworn testimony or the second time? I’m sorry? Your testimony was directly opposed, wasn’t it? One was “I don’t know where the drugs came from.” The other one was “They were someone else’s drugs,” isn’t that right?
A. (Inaudible response.)
Q. Answer out loud please.
A. Yes.
Q. Now, you don’t want to say they were your drugs, do you? If they were your drugs, you could be looking — you could have been looking at 10 to 40 or life, couldn’t you? Answer out loud please [.]
A. Yes, sir.
On redirect-examination, the State asked Mr. Bennett “what is right now is [sic] the truth. Where did these drugs come from?” Mr. Bennett responded that “[m]y testimony that I gave in my trial that I said my uncle gave me the drugs or handed the drugs to me...” was the truth. Mr. Dodson then closed with the following recross-examination:
Q. So as I understand this, that is the truth today?
A. Yeah.
Q. According to Ricky Bennett. And according to Ricky Bennett when this was fresh in your mind in 1995, the truth was that you didn’t know any drugs were in the car, wasn’t it?
A. Nope, that’s right.
Q. That’s exacdy what you testified to back then, didn’t you?
A. What I testified.
Q. You didn’t see anybody with any drugs, you didn’t know any drugs were in the car, you didn’t know anything about satchel; isn’t that right?
A. That’s right.
Q. Which truth do we believe?
Finally, Mr. Bennett’s testimony concluded when the trial judge questioned the witness as follows:
The COURT: Mr. Bennett, I have just this one question. I believe you testified — today, you have testified, that at your trial your uncle gave you the drugs that were found under the seat. Is that true?
The Witness: Yes, it is.
On appeal, Mr. Dodson contends that the refusal of the trial court to recognize Mr. Bennett’s invocation of the Fifth Amendment was error, “resulting in the forced adoption by the witness of testimony favorable to the State.” The State responds that Mr. Dodson does not have standing to assert Mr. Bennett’s Fifth Amendment rights. We agree.
A witness’s right not to incriminate himself or herself is personal, and another person does not have standing to assert a violation of the witness’s Fifth Amendment rights. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988); Shinsky v. State, 250 Ark. 620, 466 S.W.2d 911 (1971). Consequently, Mr. Dodson does not have standing to assert that Mr. Bennett’s right not to incriminate himself was violated. In addition to asserting Mr. Bennett’s Fifth Amendment rights, Mr. Dodson also contends that he was deprived of his own Sixth Amendment right to confront witnesses against him when the State was allowed to call Mr. Bennett knowing that he would invoke the Fifth Amendment.
We have held that neither the prosecution nor the defense is permitted to call a witness knowing that the witness will claim his testimonial privilege. Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990); Kiefer v. State. 297 Ark. 464, 468, 762 S.W.2d 800, 801 (1989). In Kiefer, we went on to explain that the “evil in this situation lies not in the mere calling of a witness but in the asking of a series of questions, each of which she refuses to answer on privilege against self-incrimination grounds, thus creating the equivalent of testimony in the minds of the jurors.” Id. at 469, 762 S.W.2d at 802 (citing Sims v. State, 4 Ark. App. 303, 631 S.W.2d 14 (1982) and Douglas v. Alabama, 380 U.S. 415 (1965)). Likewise, in Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985), we adopted the following language in holding that the trial court erred when it allowed the prosecutor to call a witness even though both the court and the prosecutor knew that the witness would be advised to invoke her Fifth Amendment privilege against self-incrimination:
The evil in the non-testimony of such a witness is not the mere calling of the witness, but the obvious inferences drawn by a jury to a series of questions, to all of which the witness refuses to answer on Fifth Amendment grounds. In that case the questions themselves “may well have been the equivalent in the jury’s mind of testimony.” Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 13 L.Ed.2d 934, 937 (1965). Such improper questioning, not technically being testimony at all, deprives an accused of his right to cross-examine the witnesses against him as guaranteed by the Confrontation Clause of the Sixth Amendment to the federal constitution [made obligatory on the states by the Fourteenth Amendment.] Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Douglas v. Alabama, supra.
Foster v. State, 285 Ark. at 370, 687 S.W.2d at 832 (quoting from Sims v. State, supra). Thus, allowing the State to call a witness while knowing that witness will invoke his or her Fifth Amendment privilege, deprives the defendant of his Sixth Amendment right to cross-examine the witnesses against him.
In Douglas v. Alabama, the witness called by the State invoked his privilege and refused to answer questions. Douglas v. Alabama, 380 U.S. 415 (1965). The trial judge ruled that the privilege was not applicable and ordered him to answer, but the witness persisted in refusing to answer. Id. The trial judge then allowed the State to treat the witness as a hostile witness and conduct a cross-examination, during which the State produced an alleged confession signed by the witness and proceeded to read from the document “under the guise of cross-examination to refresh [the witness’s] recollection” Id. at 416. The State’s attorney would pause after every few sentences and ask the witness if he had made the statement, and each time, the witness would assert the privilege and refuse to answer. Id. This form of questioning continued until the entire document had been read. Id. The United States Supreme Court held that the “petitioner’s inability to cross-examine [the witness] as to the alleged confession denied him the right of cross-examination secured by the Confrontation Clause.” Id. at 419. The witness’s reliance upon the privilege created a situation in which the jury might improperly infer that the statement had been made and that it was true. Id. Due to the fact that the State’s attorney was not a witness, the inference from his reading that the witness made the statement could not be tested by cross-examination. Id. Similarly, the witness could not be cross-examined on a statement imputed to him but not admitted by him. Id.
The instant case is distinguishable from Douglas v. Alabama. There, the Court stated that “effective confrontation of [the witness] was possible only if [he] affirmed the statement as his. However, [he] did not do so, but relied on his privilege to refuse to answer.” Id. at 420. Here, while the witness initially attempted to rely on his privilege, he eventually began to cooperate and, in the end, affirmed his earlier testimony. Moreover, Mr. Dodson’s attorney was able to fully cross-examine Mr. Bennett about the conflicting testimony he had given at his own trial and at Mr. Dodson’s first trial. Thus, Mr. Bennett affirmed his earlier testimony, and Mr. Dodson accomplished effective confrontation of the witness. We therefore hold that Mr. Dodson was not deprived of his Sixth Amendment right to cross-examine the witness. Accordingly, we affirm on this point.
4. Trial Court’s Statement to the Jury
Mr. Dodson argues that the trial court erred in making the following statement to the jury during voir dire: “ . . . with possession of Schedule IV controlled substance namely marijuana in violation of Arkansas Code Annotated 5-64-101, a Class C felony ...” According to Ark. Code Ann. § 5-64-401(c), possession of marijuana is a class C felony only if it is the defendant’s third or subsequent drug conviction. Mr. Dodson contends therefore that the trial court’s reference to a class C felony effectively told the jury that he had two prior drug convictions, and thereby violated the principle that prior convictions should not be disclosed to the jury until guilt is determined. In response, the State suggests that Mr. Dodson’s argument is barred because he failed to abstract the trial court’s statement to the jury or his objection to the statement. We agree.
The challenged statement appears for the first time in the argument portion of Mr. Dodson’s brief. The record on appeal is confined to that which is abstracted and cannot be contradicted or supplemented by statements made in the argument portions of the briefs. Jones v. State, 327 Ark. 85, 937 S.W.2d 633 (1997). In addition, transcript or record references in the appellant’s argument are no substitute for a proper abstract. Id. Mr. Dodson also states for the first time in the argument portion of his brief that the trial court made the statement “over the objection of the Appellant,” but “such scattered references are not a substitute for a proper abstract.” Moncrief v. State, 325 Ark. 173, 176, 925 S.W.2d 776, 778 (1996). Accordingly, we must affirm on this point without reaching the merits.
5. Admonishment by the Trial Court
For his final point on appeal, Mr. Dodson asserts that the trial court improperly admonished the jury after the State made an untimely objection to Mr..Dodson’s closing argument. The State responds that this point must be affirmed because Mr. Dodson did not abstract his closing argument, the State’s objection, and the trial court’s admonition to the jury. The State is correct. This failure to abstract precludes us from considering Mr. Dodson’s final point on appeal. See Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995).
Affirmed.
Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996) (Dodson I).
Officer Randle testified at the suppression hearing that Mr. Dodson reached toward a gun that another officer had seen in the back seat of the vehicle. This action by Mr. Dodson prompted Officer Randle to draw his weapon and order Mr. Dodson and his passengers out of the vehicle. Officer Randle then proceeded to search the vehicle in order to make sure that there were no other weapons or contraband items in the vehicle. | [
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TOM Glaze, Justice.
This case involves an original action brought by ce. Arkansas Judicial Discipline & Disability Commission (Commission) against Judge Morris Thompson, recommending that Thompson be removed from office for having willfully violated the Canons of the Code of Judicial Conduct. When Thompson was elected in November 1992 as Sixth Judicial Circuit Judge, Fifth Division, and took office on January 1, 1993, he was co-counsel representing Jacqueline Ford in a personal injury claim and Ada Gant (and other family members) in a wrongful-death suit. These claims were pending in Louisiana, and Judge Thompson remained involved in these two matters after he was judge. His involvement later led to a complaint being filed against him with the Commission.
During the Commission’s investigation of the Ford and Gant complaint, other possible Code violations unfolded. After considerable discovery and responses were exchanged between the Commission and Judge Thompson, the nine-member Commission directed that three of its members conduct a hearing regarding the formal allegations filed against Judge Thompson, and it instructed the three-member panel to make its findings and recommendations to the full Commission. The hearing commenced on October 20 and ended on October 22, and following the hearing, on November 15, 1999, the panel made its findings and recommendations to the full Commission. The panel determined that convincing evidence showed that Judge Thompson had willfully violated the Canons of the Judicial Code, and had also violated Arkansas statutory law. The panel listed the following violations:
(1) When representing Ford in her personal injury case after January 1, 1993, Judge Thompson willfully violated Canon 4G of the Code by practicing law after he became a full-time judge. The same canon was violated by Judge Thompson when representing Ada Gant and others after January 1, 1993, in their wrongful death litigation.
(2) In connection with Ford’s claim, Ford and Judge Thompson had executed a subrogation agreement with the Southern Council of Industrial Workers (Southern Council) for medical expenses paid on Ford’s behalf, and, contrary to Canons 1 and 2A of the Code, Judge Thompson willfully failed to honor the agreement.
(3) Judge Thompson willfully violated Canons 4A, D, H, and I and Ark. Code Ann. §§ 21-8-203 and -204(b)(1) (R.epl. 1996), by failing to properly file reports of outside income on the financial interest statement required to be filed with the Secretary of State.
(4) Judge Thompson willfully violated Canons 1 and 2A of the Code by writing fifty-nine insufficient checks between 1993 and 1997.
(5) Judge Thompson further violated Canons 1 and 2A by failing to pay his federal income taxes, even though he had received sufficient income to pay them.
(6) Judge Thompson violated Canons 1 and 2A and Ark. Code Ann. § 16-10-410(b)(3) (Repl. 1999), when he violated Ark. Code Ann. § 27-14-306 (Repl. 1994), by placing the license tag belonging to his 1981 Toyota on his Ford pickup truck.
The Commission additionally requests that we consider a seventh point: Whether Judge Thompson violated Rule 1.15 of the Model Rules of Professional Conduct because he deposited client funds in his “operating account,” rather than a “trust account.” Considerable testimony was taken on this point, but no specific mention of it is made in the Commission’s findings. Judge Thompson concedes that we have the authority under Rule 12D of the Rules of Procedure of the Arkansas Judicial Discipline & Disability Commission (1999), to consider whether he violated Rule 1.15, since we are considering his removal. Thus, we will address the Rule 1.15 argument, as well.
On December 9, 1999, the full Commission reviewed the panel’s six findings of fact and its recommendations, and unanimously concluded that the facts were proven by clear and convincing evidence, that Judge Thompson willfully violated Canons 1, 2A, 4A, 4D(2), 4G, 4H, and 41 of the Code, and that such violations were prejudicial to the administration of justice. The Commission further stated that, while some of the offenses and findings, standing alone, may have warranted a lesser sanction, the seriousness of the others, along with the sheer number of violations committed over such a lengthy period of time, left no other alternative than to recommend Judge Thompson’s removal from office.
After the Commission entered its findings and recommendations, it filed them and its record with this court, and the matter was docketed for expedited consideration. See Rule 12 of the Discipline and Disability Rules (1999). The Commission and Judge Thompson have now filed their briefs, participated in oral argument, and the case is submitted to us for decision. Upon review of the entire record, we may accept, reject, or modify, in whole or in part, the Commission’s findings and recommendations. Rule 12E. In short, our standard of review in this matter is one of de novo review, and we will not reverse the Commission’s findings unless they are clearly erroneous. See Ark. R. Civ. P. 52(a); cf. Mays v. Neal, 327 Ark. 302, 938 S.W.2d 830 (1997), and Finch v. Neal, 316 Ark. 530, 873 S.W.2d 519 (1994). In considering the Commission’s findings and recommendations and Judge Thompson’s responses to them, we will review each of the seven violations argued and set out above. Judge Thompson also raises several due process issues regarding the three-member panel, including an evidentiary ruling it made. We will discuss those matters after discussing and deciding the substantive findings.
I. Whether Judge Thompson violated Canon 4G of the Judicial Code by engaging in the practice of law after he assumed the bench on January 1, 1993.
Canon 4G provides that a judge shall not practice law or appear in any court within this state, and the commentary to this Canon notes that the prohibition “refers to the practice of law in a representative capacity under Ark. Const, art. 7, § 25.” However, Judge Thompson relies on the Canon’s language, “shall not practice ... in any court within this State,” and argues this phrase is not defined by the Judicial Code, and he does not fall within its prohibition. He claims that he never appeared as counsel in any court, nor did he practice law within Arkansas. Thompson further cites an Oregon case, In Re Piper, 534 P.2d 159 (Or. 1975), and advisory opinions from Florida, New York, and Kentucky for the proposition that an attorney elected to a judgeship may complete his or her legal work after assuming the bench. While we harbor considerable doubt that the authority cited by Judge Thompson is on all fours with the case here, we need not explore those situations in other jurisdictions because not only does our law specifically prohibit the practice of law by judges, but this court has also defined and decided what is meant by, and is included within, the term “practice of law.” In Undem v. State Board of Law Examiners, 266 Ark. 683, 587 S.W.2d 563 (1979), this court stated the following:
It is quite true that the practice of law is not confined to services by an attorney in a court of justice; it also includes any service of a legal nature rendered outside of courts and unrelated to matters pending in the courts. (Citations omitted.) It is uniformly held that writing and interpreting wills, contracts, trust agreements, and the giving of legal advice in general constitute practicing law. (Emphasis added.)
In concluding that, under Arkansas law, a judge cannot practice law after he is elected to and assumes the bench, we now review the evidence bearing on whether Judge Thompson’s activities after he took office on January 1, 1993, involved the practice of law.
Regarding the Ford case, Judge Thompson served as co-counsel with Brenda Brown, a Louisiana attorney. Thompson submits that he advised Ford concerning settlement, and she accepted a settlement offer in December 1992. He argues that all the work performed after December 1992 was “clerical” and did not fall within the proscription of “practicing law.” The evidence presented to the Commission failed to support Judge Thompson’s claim. For example, between January 4 and 13 of 1993, opposing defense counsel, Bruce M. Mintz, sent Judge Thompson a receipt and release for Ms. Ford and her husband to sign and for Thompson to approve as their attorney; included, too, was a motion and order of dismissal with prejudice which Judge Thompson was requested to approve as one of the Fords’ attorneys. Mintz also enclosed a check dated January 4, 1993, in the amount of $150,000.00. On January 13, 1993, Judge Thompson met with the Fords in his judge’s chambers where they discussed and signed and approved the above documents, and afterwards, Thompson accompanied the Fords when they negotiated the check. On January 19, 1993, Judge Thompson faxed a letter to his Louisiana co-counsel Brenda Brown, confirming their fee arrangement, and the next day he sent Brown a cashier’s check along with a letter, written on his judicial stationery, wherein he directed Brown to approve the order of dismissal and gave her directions on closing the case. Unquestionably, these activities that took place in Arkansas involved legal advice, and the documents identified him as the Fords’ attorney. Judge Thompson’s actions in bringing the Fords’ case to a resolution easily fall within the definition of practicing law, and the Commission’s decision so finding is correct.
When investigating the Ford matter, the Commission discovered Judge Thompson had also continued to represent Ada Gant and other family members concerning their wrongful-death case filed in Louisiana. While Judge Thompson disputes many of the Commission’s allegations and findings that resulted in the Commission’s decision that he willfully violated Canon 4G by continuing to practice law on the Gants’ behalf after January 1, 1993, there is clear and convincing evidence that he did, indeed, represent the Gants as their co-counsel as late as November 1994 — one year and eleven months after being sworn in as a judge.
It is undisputed that, on December 30, 1992, Judge Thompson participated in several depositions involving the Gant case. Thompson and his Louisiana co-counsel Brenda Brown and Pamela Blankenship represented the Gants, and Louisiana attorneys David Nelson and Haynes Harkey represented the defendants. After the depositions ended, the attorneys discussed setdement. After Harkey returned to his office, he claimed, and later testified, that Judge Thompson informed Harkey that he had received “special dispensation” from a “senior judge” that would allow him to finish the Gant case. Harkey further averred that he memorialized that conversation by memorandum to associate defense counsel, Bruce Mintz, in order to summarize what had transpired on the day of the depositions. The Commission apparently believed Harkey’s version of what was said. That being true, since Arkansas’s judicial branch has no trial judge denominated as “senior judge” who could give such dispensation, the Commission could have reasonably concluded that Judge Thompson offered a false cover to give a reason why, as a newly elected judge, he intended to represent the Gants until the conclusion of their case.
Although Judge Thompson urges that he had advised opposing counsel that he would no longer be involved in the case, the evidence undermines that assertion. Judge Thompson testified that he closed his law office in December 1992, and sent his motion to withdraw as an attorney in the Gant case to his co-counsel. Nonetheless, that motion was never filed with the Louisiana court, and the evidence shows that Judge Thompson continued to participate until the Gant case’s conclusion. In fact, the record reflects that legal correspondence and documents concerning the Gant case continued to be exchanged between Judge Thompson, opposing counsel, and the Louisiana court’s clerk between January 1993 through October 1994. Defense counsel Mintz testified that she was sure she did not receive any written or verbal communication that Thompson no longer represented the Gants or Fords after he took the bench. Defense counsel David Nelson also could not recall Judge Thompson saying he was no longer involved in the Gant case.
On March 17, 1993, Mark Ackley, an adjuster for defendant St. Paul Fire & Marine Insurance Company, called Judge Thompson at his judicial office, after Ackley was unable to contact Blankenship; during the call, Ackley and Judge Thompson discussed proposed settlement of the Gant matter. Ackley sent Judge Thompson a fax setting out the settlement terms, and the fax was directed to “Judge Thompson.” Ackley said that, in his conversation with Thompson, Thompson never told him that he could not settle the case; nor did he refer Ackley to another attorney. Ackley said the Gant case was settled on March 24, 1993, and co-counsel Blankenship signed Thompson’s name along with her own on the release documents, which the evidence shows Judge Thompson gave Blankenship authority to do. Thompson signed this signature authorization as “Judge Morris Thompson” and had mailed it to defense attorney Bruce Mintz. Prior to the signing and approval of the March 31 release, Judge Thompson had written and disbursed checks to his clients, but he advised his clients not to negotiate the checks until he received the settlement check and it had cleared his account. These checks were written on Judge Thompson’s “operating account” at Union National Bank. Although Judge Thompson argues he did not deal with these clients and disputes these findings made by the Commission, Thompson’s own testimony concedes their verity when he acknowledged the clients had negotiated checks written on his account. Moreover, the operating account used by Judge Thompson contained the legend, “Morris W. Thompson P.C. Law Firm.”
In April 1993, Judge Thompson received a $150,000 settlement check. He, Blankenship, and their clients endorsed the check, and Judge Thompson deposited the check in his operating account. Judge Thompson paid the court reporters and his co-counsel their expenses and fees, and he also sent a check to the Louisiana court clerk to cover future costs in the Gant lawsuit. The record further reflects that Judge Thompson still had contact with co-counsel Blankenship and opposing counsel Nelson after the March and April activities involving the Gant matter. In this respect, Judge Thompson contacted Blankenship on about twenty occasions between August 14, 1993, and November 4, 1994, and he spoke with defense attorney Nelson on November 29, 1993. As we similarly concluded above regarding the Ford case, we believe the record also amply supports the Commission’s finding that Judge Thompson practiced law when he continued to represent the Gants after he ascended to the bench on January 1, 1993.
Judge Thompson argues that, even if he violated Canon 4G, he did not do so willfully. In short, Judge Thompson submits that he made a good-faith interpretation of Canon 4G, and, in doing so, believed he could finish his law practice after he took office. He urged before the Commission, and argues here, that he reached the opinion that he could perform clerical activities in order to complete his law practice. However, as we have already concluded, our review of the work he performed revealed he was performing more than ministerial or clerical acts, but instead, his actions constituted the active practice of law, which is clearly prohibited under Ark. Const, art. 7, § 25, and Canon 4G. In addition, we cannot ignore the testimony of opposing counsel Haynes Harkey, who said Judge Thompson had received “special dispensation” from a “senior judge” who allowed him to finish the Gant case. The Commission had the right to believe Harkey’s testimony as being true, and because no such dispensation procedure is permitted in Arkansas, it could further reasonably infer that Judge Thompson’s false statement to Harkey was offered to explain or justify his unlawful practice of law.
II. Whether Judge Thompson violated Canons 1 and 2A by failing to honor the subrogation contract he and Ms. Ford executed with the Southern Council of Industrial Workers.
Canon 1 and 2A of the Code of Judicial Conduct read as follows:
Canon 1. A judge shall uphold the integrity and independence of the judiciary.
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.
Canon 2. A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
During his representation of Ms. Ford, both Judge Thompson and Ford executed a subrogation agreement with Southern Council on September 3, 1991, whereby the Council paid for the medical treatment or services Ford incurred. These monies were paid from the Council’s Industrial Workers Health and Welfare Fund, and Judge Thompson and Ford agreed to reimburse the fund for any recovery. As already mentioned above, Judge Thompson settled Ford’s claim in December 1992 and January 1993 for $150,000.00, but neither Judge Thompson nor Ford reimbursed Southern Council’s fund. In fact, Judge Thompson kept $50,000.00 of the recovery as attorney’s fees. Southern Council filed suit in federal court against Judge Thompson and Ford, and it obtained a judgment in the amount of $29,971.00. The federal court ruled that Judge Thompson had intentionally exercised control over funds inconsistent with Southern Council’s rights and held that he converted the Council’s funds. Judge Thompson did not appeal that determination, but instead argued that, in defending against Southern Council’s lawsuit, he had simply believed that the obligation owed Southern Council belonged to Ford, not him. However, such an explanation fails to explain how he could have avoided responsi bility for the debt when he joined in signing the agreement to reimburse the Council. Nor does Judge Thompson satisfactorily address and rebut the federal court’s decision finding a knowing conversion on his part, which was not appealed. Based on this evidence, we are unable to say the Commission was clearly erroneous in finding Judge Thompson violated Canons 1 and 2A.
III. Whether Judge Thompson willfully violated Canon 4 of the Code of Judicial Conduct and Ark. Code Ann. §§ 21-8-203 and -204(b)(1) (Repl. 1996), by failing to properly report his outside income and financial interests to the clerk of the Arkansas Supreme Court and the Secretary of State.
Canon 4H(2) provides as follows:
(2) Public Reports. A judge shall report the date, place and nature of any activity for which the judge received compensation, and the name of the payor and the amount of compensation so received. The judge’s report shall be made at least annually and shall be filed as a public document in the office of the Clerk of the Supreme Court.
The commentary to Canon 41 refers to the foregoing canon, stating in pertinent part that Section H requires a judge to report all compensation the judge receives for activities outside judicial office. The Commission found, and Judge Thompson does not dispute, that Judge Thompson did not report or list the attorney’s fees he received in 1993 from the Ford and Gant settlements, nor did he list the following attorney’s fees or income he received in 1993 from other attorneys or clients: Marvin L. Harris (approximately $8,431.00), Woodson Walker referral fees ($4,956.96), Willard Proctor referral fees ($3,865.68), and income from Willard Proctor from the Fred Douglas Trust ($4,596.56).
The Commission further found Judge Thompson failed to report other outside income he received between January and December of 1994; that compensation was the following:
(1) Attorney’s fees received from James Rhodes in the amount of $4,586.00.
(2) Attorney’s fees received from Willard Proctor in the amounts of $2,016.00, $6,060.25, and $6,849.31.
(3) Attorney’s fees from the Arkansas Municipal League in the sum of $5,400.00.
(4) Attorney’s fee from the Needham, Johnson, Lovelace, and Johnson Law Firm in Texas in the amount of $160,000.00.
The Commission finally concluded on this point that Judge Thompson failed to file any outside-income report with this court’s clerk in 1996, nor did he file a statement of financial interest with the Secretary of State in 1996 as required by Ark. Code Ann. §§ 21-8-203 and -204 (Repl. 1996). Section 21-8-203 emphasizes the purpose of disclosure-of-income requirements, providing such reports are essential to the efficient operation of government and to minimize the opportunities for conflicts of interest. Ark. Code Ann. § 21-8-202 (Repl. 1996) imposes a fine of up to $500.00 for the failure to file an income report and designates the violation of §§ 21-8-203 and -204 to be a misdemeanor.
While Judge Thompson seems to argue that Canon 4H’s reporting requirements are ambiguous, we believe they are quite clear — a judge shall, at least annually, report the date, place and nature of any activity for which he or she received compensation and report the amount and the person who paid the compensation. The preamble of the Judicial Code instructs that when the Code uses “shall” or “shall not,” it is intended to impose binding obligations, the violation of which can result in disciplinary action. Fifing such information allows interested persons and the public to have knowledge concerning whether a judge has any conflicts of interest when the judge conducts judicial business. Although Judge Thompson refers us to a Michigan State Bar advisory opinion that suggests a new judge need not disclose payments from his or her former law firm, so long as the payments are made with respect to work done when the judge was still in practice, such is not legal precedent, but more importantly, the opinion, as set out, is wholly inconsistent with the language and purposes of Canon 4H adopted by our court and the Arkansas law embodied in §§ 21-8-203 and - 204.
IV. Whether Judge Thompson violated Canons 1 and 2A of the Code of Judicial Conduct, by issuing insufficient checks on his operating account for the purchase of goods, services, and the payment of debts.
Judge Thompson argues that, while he did not watch his account as closely as would have been prudent, he only had twenty-one checks returned as insufficient. He also asserts that, contrary to the Commission’s finding, he had overdraft protection.
First, in reviewing the record, we readjudge Thompson’s own testimony where he admitted on direct examination that fifty-nine checks had been returned to him as insufficient between 1993 and 1997. He also agreed that his ability to sit on cases involving “hot checks” had been compromised. Second, although he claims to have had overdraft protection, bank officials disagreed. Obviously, the best proof on this point is that fifty-nine checks were returned insufficient over a five-year period, and no overdraft protection was extended to make those checks good. Third, other evidence presented to the Commission showed what could be labeled a willfulness on Judge Thompson’s part in failing to satisfy those businesses that received his insufficient checks. For example, he gave a check to Pop-a-Top Liquor in the amount of $15.16 which was returned for insufficient funds. The store owner said that he tried to contact Judge Thompson by telephone and mail, but received no response until the store contacted the prosecuting attorney, seeking an arrest warrant. Judge Thompson paid the debt only after the prosecuting attorney’s office contacted him. In addition, Judge Thompson wrote an insufficient check to Sam’s Wholesale Club for the amount of $317.29. A Sam’s representative averred the store called Judge Thompson’s home number four times and got no answer. The last two calls revealed Judge Thompson’s phone had been disconnected, so Sam’s sought an arrest warrant, and like the case with Pop-a-Top, Judge Thompson paid only after the prosecuting attorney’s office notified him that an affidavit for an arrest warrant had been filed.
Although judges should be independent, they must comply with the law, including the provisions of Arkansas’s Judicial Code. See commentary to Canon 1. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility, and conversely, violation of the law and the Code diminishes public confidence in the judiciary and thereby does injury to the system of government by law. Again, we conclude the record before us supports the Commission’s findings showing Judge Thompson violated the Code by his issuing insufficient checks as described above. Cf. Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999) (where Officer Smith admitted he wrote checks to merchants without knowing how much money was in his account at the time, that he received notice of the returned checks, and that he failed to rectify the wrongs suffered by the merchants without judicial intervention, the Commission’s termination of Smith was supported by substantial evidence).
V. Whether Judge Thompson violated Canons 1 and 2A of the Code of Judicial Conduct, by failing to pay his 1994 federal personal income tax.
The Commission found that, on October 28, 1996, Judge Thompson was assessed $86,936.91 as delinquent federal income tax for the year ending 1994, and the Internal Revenue Service filed a notice of Federal Tax Lien on Judge Thompson and his wife. The Commission found Judge Thompson’s failure to pay his income taxes violated the Code because he had the money in 1994 to pay the taxes, but chose not to do so. In support of its findings, the Commission found Judge Thompson had received a referral fee in 1994 in the amount of $160,000.00 but placed $100,000.00 in a Merrill Lynch account and used the balance to pay other debts rather than his taxes.
Judge Thompson’s sole response on appeal is that he made his decision to utilize his resources to pay off “old pressing financial obligations” and to pay his tax obligation by installment. On this point, Judge Thompson would be correct, at least to the extent that, if he had insufficient funds to pay all his debts, he should be able to schedule the best debt-payment plan he could. However, Thompson does little in the way of argument to point to evidence that rebuts the Commission’s findings that he had sufficient funds to pay his 1994 taxes. It is especially noteworthy that Judge Thompson had $100,000.00 to put in a Merrill lynch account. In reviewing his testimony before the Commission, Judge Thompson merely said that, when he told the IRS of his assets and liabilities, he “imagined” the IRS knew he had the account. While this non-payment of federal income tax issue is a close one, we are not inclined to set aside the Commission’s findings that Thompson’s conduct violated Canons 1 and 2A. We do note at this stage that, if this issue was the only violation before us, it would not be one that would invoke a sanction for removal from office.
VI. Whether Judge Thompson violated Canons 1 and 2A, by operating a motor vehicle with a fictitious license plate tag.
On June 18, 1997, Judge Thompson was stopped by the police and given a citation for exhibiting a fictitious license plate tag in violation of Ark. Code Ann. § 27-14-306 (Repl. 1994), a misdemeanor. Judge Thompson admitted he placed a license plate tag from a 1981 Toyota on his 1982 Ford pickup truck. However, he said that he was restoring the truck and only drove it to the mechanic shops or garages for needed work. While Judge Thompson urges that he made no attempt to deceive anyone concerning his judicial status, the purpose for attaching the fictitious license tag was to mislead law enforcement officers to believe the truck was properly registered. Such misconduct on Judge Thompson’s part clearly violated Canons 1 and 2A.
VII. Whether Judge Thompson violated Rule 1.15 of the Model Rules of Professional Conduct, by depositing client funds in a personal account rather than an identifiable trust account.
While the Commission did not directly consider this issue, both Judge Thompson and the Commission agree we can do so when considering the removal of a judge. Rule 12D of the Judicial Discipline and Disability Rules provides as follows:
D. Scope of Discipline. The Supreme Court, when considering removal of a judge, shall determine whether discipline as a lawyer also is warranted. If removal is deemed appropriate, the court shall notify the judge, the Commission and the Supreme Court Committee on Professional Conduct and give each an opportunity to be heard on the issue of the imposition of lawyer discipline.
Model Rule 1.15 is the rule we are asked to consider, and it reads in pertinent part as follows:
(a) All lawyers shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.
(1) Funds of a client shall be deposited and maintained in one or more identifiable trust accounts in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. The lawyer or law firm may not deposit funds belonging to the lawyer or law firm in any account designated as the trust account, other than the amount necessary to cover bank charges, or comply with the minimum balance required for the waiver of bank charges.
It is undisputed that, sometime after January 1993, Judge Thompson allowed his attorney’s trust account to elapse, but he maintained a personal or what he specifically referred to as an “operating account” in order to “clean up” his debts.
In handling the Ford and Gant settlements, Judge Thompson conceded that he deposited the settlement checks or drafts in his operating account, and disbursed checks to his clients. However, Judge Thompson suggested his failure to use a trust account to deposit the Ford and Gant funds was not his usual practice, and he only did so to complete his prior law business. On cross examination, however, Judge Thompson was shown a number of checks made out to him and other clients prior to when he took office. The checks bore the names of Bertha Chambers, Vivian Lamini, Gertie Mason, Irma Reshada, Diana Cross, and Diana Brickman, and he admitted those checks were deposited in his operating account and he had “technically” commingled his clients’ monies with his. Based on this evidence and Judge Thompson’s admissions, we must conclude that he violated Model Rule 1.15, and such violation will be considered by this court in the Commission’s recommendation to remove Judge Thompson from office.
We have thoroughly discussed and decided the seven findings and Code violations the Commission has made, but before we address the Commission’s recommendation bearing on Judge Thompson’s removal, we must consider Thompson’s due process arguments.
Thompson first contends that his due process rights were violated because his discipline hearing was held before a three-person panel rather than the full nine-member Commission. Citing Mathews v. Eldridge, 424 U.S. 319 (1976), he argues generally that procedural due process requires a hearing before an impartial decision maker be provided at a meaningful time and in a meaningful manner, prior to a governmental decision which deprives individuals of a liberty or property interest. He suggests that he was not offered a fair opportunity to be heard at a meaningful time or manner because all nine members did not hear the evidence first hand. He also claims he was somehow prejudiced because five of the nine Commission members, due to their term expirations, had departed the Commission, so their replacements on the Commission (when the Commission made its final findings and recommendations) were not present earlier when the probable cause and factfinding hearing rulings were made. In other words, Thompson says he was denied a fair and meaningful hearing because the five new commissioners were not privy to all of the proceedings that previously had transpired in his case.
The Commission rejoins by stating Judge Thompson has no protected property interest in the judicial office he holds, so due process is not an issue. Although we do not totally agree with the Commission’s response, we do agree that neither Judge Thompson nor the Commission offers sufficient citation of legal authority or convincing argument for us to decide this question. See Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000); Ellis v. Price, 337 Ark. 542, 990 SW.2d 543 (1999). In oral argument, Judge Thompson agreed that he had no legal authority suggesting the three-member panel hearing utilized by the Commission in any way violated procedural due process. We are not inclined to delve into this legal issue without briefs and argument that better develop this issue.
Suffice it to say, Rule 11C provides for a formal disciplinary hearing before the full Commission, or a three-member panel as a factfinder, and Rule 11D states that the proceeding shall be recorded verbatim. If a panel conducts the hearing, it must submit its findings and recommendations, together with the record and transcript to the full Commission. See Rule 11D and F of the Discipline and Disability Rules. And when the panel is the factfinder, the full Commission may make findings of fact independent from those offered by the panel. Id. at F. Such procedure ensures that the full Commission has before it all of the record of the formal proceedings, and each member is reserved the power to review the disciplinary proceeding and reach findings separate from those made by the panel.
Judge Thompson next asserts that his due process rights were violated when the Commission considered allegations that were not part of the formal statement of charges. He argues that, after his probable cause hearing, the Commission dismissed several evidentiary issues later utilized to support some of the Commission’s findings and recommendations. However, he fails to show when or where in the record these dismissals appear, and we are unable to find them through our independent search. In short, Judge Thompson has failed to preserve this argument. See Western Foods, Inc. v. Weiss, 338 Ark. 140, 992 S.W.2d 100 (1999); Brown v. Arkansas State (HFACR) Licensing Bd., 336 Ark. 34, 984 S.W.2d 402 (1999). However, even if the record reflected such dismissals, he has not shown how they would have prejudiced his case, since other evidence presented to the Commission amply supports the Commission’s findings.
Judge Thompson’s final due process argument is that Circuit Court Judge David Bogard and all other circuit court judges serving in the Sixth Judicial Circuit had disqualified themselves when they were requested to preside on earlier cases involving Judge Thompson. One case was about four years ago and involved a wholly different matter than the case now before us. The second case was filed by Judge Thompson to prevent the Commission’s discovery requests during its investigation of Thompson which led to the filing of the disciplinary proceeding now before us. Judge Bogard was appointed to the Commission after these earlier cases, but when Judge Bogard and the two other Commission panel members commenced the formal discipline hearing in this matter, Judge Thompson raised the possibility of Judge Bogard’s disqualification. He suggested to Judge Bogard that, since Bogard had previously recused in other cases involving Judge Thompson, he might wish to do so in this proceeding. Judge Bogard rejected Judge Thompson’s suggestion, stating that, in the earlier situations, he merely felt uncomfortable in sitting as a presiding judge on a friend’s and co-worker’s case, and Judge Bogard considered Judge Thompson both. In retrospect, Judge Bogard said that he “might not have disqualified,” because his earlier recusals were not ones based on a feeling that he could not be impartial or unbiased. Judge Bogard posited that, unless the Commission had some concern over his prior favorable relationship with Judge Thompson, Bogard believed that he could be fair to both parties. The Commission offered no objections.
Judge Thompson cites Canon 3E(1) of the Code of Judicial Conduct which in relevant part provides that a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. Judge Thompson argues simply that Judge Bogard’s prior recusals called Judge Bogard’s impartiality into question; therefore, he should be disqualified.
This court has held that, in cases where judges have been asked to disqualify, judges are presumed to be impartial, and the person seeking disqualification bears a substantial burden in proving otherwise. See Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998); Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). We have further held that the decision to recuse is within the trial judge’s discretion, and it will not be reversed absent abuse. Here, Judge Bogard took the time to explain why he had previously recused from sitting on prior matters involving Judge Thompson, that those reasons did not include any bias or impartiality he had towards Judge Thompson, and that he had a fair and open mind and heart that would permit him to participate as a panel member in the case. After Judge Bogard’s declarations, Judge Thompson presented no evidence to show or prove bias on Judge Bogard’s part or that Judge Bogard in any way abused his discretion in deciding not to recuse. Thus, we uphold Judge Bogard’s ruling on this issue.
In disposing of Judge Thompson’s due process arguments, we turn finally to Judge Thompson’s last separate point where he asserts that the three-member panel erred by allowing Denny Reynaud, the Commission’s investigator, to testify to what Judge Thompson argues was inadmissible hearsay evidence.
The Commission called Reynaud as a witness, and he began his testimony by saying the Commission had received a letter from an attorney named Mary Thomason, who alleged that Judge Thompson was practicing law without a license. Thomason represented Mrs. Ford in the federal lawsuit in which Southern Council sued Ford and Judge Thompson, as co-defendants, alleging they failed to honor their subrogation agreement. Judge Thompson objected to Reynaud’s reference to Thomason’s statements as being hearsay and that such testimony prejudiced Judge Thompson by attempting to use Reynaud’s testimony to prove the matters asserted by Thomason. We do not agree. The Commission offered Reynaud’s testimony to show only that it was Thomason’s letter that caused the Commission to initiate an investigation into whether Judge Thompson represented Ford before and after he assumed the bench. The panel correcdy overruled Judge Thompson’s objection, since, contrary to Thompson’s assertion, the Commission did not offer Thomason’s letter or statements to prove Judge Thompson was practicing law improperly, but instead to show why it initiated an investigation into whether Judge Thompson was improperly practicing law. Wal-Mart Stores, Inc. v. Dolph, 308 Ark. 439, 825 S.W.2d 810 (1992); see also Ark. R. Evid. 801(c) (1999). As fully discussed above, Judge Thompson did unlawfully practice law not only by representing Ms. Ford, but also by representing Gant and others as well.
In conclusion, we now consider the Commission’s recommendation that Judge Thompson’s Code infractions compel his removal from office. The Commission stated its recommendation as follows:
While some of the offenses set forth above may have warranted a lesser sanction as an isolated event, the seriousness of some of the other offenses as well as the sheer number of violations committed over such a lengthy period of time, leave no other alternative than to recommend to the Supreme Court of Arkansas that Respondent, Morris W Thompson, be removed from office as Circuit Judge of the Sixth Judicial Circuit, Fifth Division, of the State of Arkansas.
In our de novo review as set out above, we have emphasized that evidence which convincingly proved Judge Thompson had violated the Judicial Code, the Arkansas Constitution, and Arkansas statutory laws. Judge Thompson, on the other hand, has repeatedly taken the position that he made a good-faith and reasonable interpretation of these controlling canons and laws, and his interpretations negated any suggestions that he violated these provisions “willfully.” Consequently, Judge Thompson argues we should reject the Commission’s recommendation for his removal from office. Alternatively, he urges the imposition of the lesser sanction of reprimand.
Much of Judge Thompson’s argument is disturbing and somewhat difficult to follow. While he denies any willful or intentional violation of the canons or laws, the record clearly shows he knowingly violated misdemeanor laws when he utilized fictitious license tags to his personal advantage and caused the prosecuting attorney’s office to persuade him to pay insufficient checks. Also, while he claims his good faith attempt to comply with other Code violations with which he was charged, the evidence clearly undermines such argument. As previously stated, Arkansas constitutional law prohibits judges from “practicing law,” and Arkansas case law has clearly defined that term to include the actions taken by Judge Thompson in this case. Nonetheless, Judge Thompson never sought legal advice on this point, but instead followed his own favorable view of the law. In doing so, he not only continued to represent clients, he also conveyed an erroneous explanation to an opposing counsel that he had received special dispensation from a senior judge to finalize his law practice. It is fair to say that each time Judge Thompson had a question regarding the canons or law, he held his own counsel and decided that his actions were' lawful or permissible in the circumstances. As pointed out earlier, when the text of the Judicial Code uses “shall” or “shall not,” it is intended to impose “binding obligations.” However, when Judge Thompson was confronted with Canon 4’s mandate that he file a public report listing compensation from extra-judicial activities, he rejected its application to his special circumstance. Finally, we note Judge Thompson offered a self-serving interpretation of why he refused to honor his and his client’s subrogation agreement with Southern Council, but that interpretation totally ignores the federal judge’s decision that Judge Thompson knowingly converted the Council’s funds and the fact that no appeal was taken from that decision.
We believe the Commission’s recommendation that Judge Thompson should be removed is the right one. It is not unlike the decision handed down recently in Disciplinary Proceedings Against Anderson, 981 P.2d 426 (Wash. 1999). There, the Supreme Court of Washington, in determining the appropriate sanction for judicial misconduct, considered the following:
(a) whether the misconduct is an isolated instance or evidenced a pattern of conduct;
(b) the nature, extent and frequency of occurrence of the acts of misconduct;
(c) whether the misconduct occurred in or out of the courtroom;
(d) whether the misconduct occurred in the judge’s official capacity or in his private life;
(e) whether the judge has acknowledged or recognized that the acts occurred;
(f) whether the judge has evidenced an effort to change or modify his conduct;
(g) the length of time of service on the bench;
(h) whether there have been prior complaints about this judge;
(i) the effect the misconduct has upon the integrity of and respect for the judiciary; and
(j) the extent to which the judge exploited his position to satisfy his personal desires.
In concluding its review of Judge Anderson’s case, the Washington Supreme Court ordered his removal for (1) continuing to serve as president of three corporations for ten months after being sworn in as judge, (2) continuing to participate in the sale of a business belonging to the estate of a deceased client, (3) and failing to report loan payments on his vehicle made by a personal friend to whom the business had been sold.
Once again, the record reflects that Judge Thompson, in each circumstance involved, relied on his own legal interpretation of the canon and law involved, and without exception, he chose the option which benefited or was most favorable to him. Even at this stage, Judge Thompson fails to accept responsibility for those acts that conflicted with any of the canons or laws in issue. The preamble of the Judicial Code undergirds and compels this court to establish a high standard when reviewing a judge’s misconduct and to ensure its fair and uniform compliance. The preamble in relevant part provides the following:
Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.
* * *
The text of the Canons and Sections is intended to govern conduct of judges and to be binding upon them. It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system.
The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of judges. They should also be governed in their judicial and personal conduct by general ethical standards. The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.
For these reasons, we hereby order Judge Thompson’s removal from office. Pursuant to Rule 12D of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission, we also forward a copy of this opinion to the Supreme Court Committee on Professional Conduct for a hearing on the issue of imposition of lawyer discipline.
IMBER, J., not participating.
One Commission member joined in the Commission’s recommendation that Judge Thompson should be removed, but stated that, while the Commission member agreed that all the violations had occurred, he did not believe Judge Thompson’s failure to honor Southern Council’s subrogation agreement or his failure to pay his federal income tax violated Canons 1 and 2A.
An individual amicus, who is an elector residing in the sub-district from which Judge Thompson was elected, filed a brief in this appeal. The amicus brief does not address the findings or arguments raised, but appears largely to caution or remind the court that any decision that displaces an elected judge will impact innocent parties (voters). The amicus brief also alludes to the consent decree entered in the federal district court case, Hunt u. State, No. PB-C-89-406 (E.D. Ark. 1991).
We note the commentary mistakenly refers to art. 7, § 24. It is art. 7, § 25 which provides that judges of the supreme, circuit, or chancery courts shall not, during their continuance in office, practice law or appear as counsel in any court, State or Federal, within this State.
Co-counsel Pamela Blankenship stated that she did not file Judge Thompson’s motion because she thought it would disrupt negotiations. Blankenship did discharge her other co-counsel, Brenda Brown, in the Gant case.
Judge Thompson’s failure to comply with Model Rule 1.15 comes within Canon 2A, especially since he violated the Arkansas Constitution and Canons when he continued to practice law after he ascended to the bench. Accordingly, Judge Thompson’s and the Commission’s agreement to consider this issue on appeal is appropriate.
Besides his ability to seek legal advice from counsel, Judge Thompson also could have requested advice from the Judicial Ethics Advisory Committee under Section 5 of Act 791 of 1991.
In ordering Judge Anderson’s removal, the Washington court actually rejected the recommendation of the Washington Commission on Judicial Conduct that the judge be censured and suspended without pay for four months. | [
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Frank Holt, Justice.
The appellants, who comprise the Sebastian County election commission were mandamused by the trial court to create two separate quorum courts in that county,.i.e., the Greenwood District, the appellee, and the Fort Smith District in accordance with the provisions of Act 128 of 1975. Appellants contend that the trial court erred in holding Section 13 of that Act constitutional. It is appellants’ argument that this section of the Act is in irreconcilable conflict with our recent Amendment 55 to the Constitution of Arkansas (1874). We must agree.
It is true as appellee argues that Sebastian County has had two separate districts for one hundred years (Greenwood and Fort Smith) with each having its own quorum court. This is so because our state constitution contains a unique provision with respect to Sebastian County. Article 13, Section 5 provides “Sebastian County may have two districts and two county seats, at which county, probate and circuit courts shall be held as may be provided by law, each district paying its own expenses.” In Jewett v. Norris, 170 Ark. 71, 278 S.W. 652 (1926), we observed:
Obviously the purpose of the provision of the Constitution set out above was to make valid and constitutional subsequent legislation like that which had been stricken down **** [or] was declared unconstitutional.
See Patterson v. Temple, 27 Ark. 202 (1871); and Jones, ex parte, 27 Ark. 349 (1871). In Scaramuzza v. McLeod, Commr. of Revenues, 207 Ark. 855, 183 S.W. 2d 55 (1944), and Jewett, supra, we recognized that both of these districts of Sebastian County are as distinct and separate as are two counties with respect to jurisdiction in matters of local concern and fiscal affairs.
In 1974, as indicated, Amendment 55 to our constitution was approved. The pertinent provisions are:
Section 1. (a) A county acting through its Quorum Court may exercise local legislative authority not denied by the Constitution or by law. ****
Section 2. (a) No county’s Quorum Court shall be comprised of fewer than nine (9) justices of the peace, nor comprised of more than fifteen (15) justices of the peace. The number of justices of the peace that comprise a county’s Quorum Court shall be determined by law. The county’s Election Commission shall, after each decennial census, divide the county into convenient and single member districts so that the Quorum Court shall be based upon the inhabitants of ithe county with each member representing, as nearly as practicable, an equal number thereof.
(b) The Quorum Court may create, consolidate, separate, revise, or abandon any elective county office or offices except during the term thereof; provided, however, that a majority of those voting on the question at a general election have approved said action. ****
Section 4. In addition to other powers conferred by the Constitution and by law, the Quorum Court shall have the power to override the veto of the County Judge by a vote of three-fifths of the total membership; fix the number and compensation of deputies and county employees; fill vacancies in elective county offices; and adopt ordinances necessary for the government of the county. The Quorum Court shall meet and exercise all such powers as provided by law. ****
At the 1975 legislative session, the legislature enacted Act 128. Section 13 provides:
Notwithstanding any other provision of this Act, any county in the State which on the effective date of this Act is divided into two districts and has a separate levying or quorum court for each district, shall continue to have separate levying or quorum court for each district and the provisions of this Act relating to the quorum court shall be applied in each district of such counties the same as if such districts were separate counties.
We fully recognize that historically and legally the Greenwood District, appellee, and the Fort Smith District since 1874 have consistently been treated as separate counties for certain purposes. However, the 1974 Amendment 55 to our constitution contains provisions that are patently inconsistent and incompatible with these two districts continuing to have separate quorum courts which is provided by Section 13 of Act 128. In particular, Section 2 (b), supra, provides “[T]he Quorum Court may create, consolidate, separate, revise, or abandon any elective county office or offices except during the term thereof. ...” Section 4, supra, provides that the quorum court shall have the power to “fix the number and compensation of deputies and county employees; fill vacancies in elective county offices; and adopt ordinances necessary for the government of the county.” Amendment 55 makes no provision for any county to have more than one quorum court. It makes no reference whatever to a county being divided into districts as does Article 13, Section 5.
It is apparent from reading Amendment 55 that it is in the nature of a home rule amendment which gives to each county much local legislative authority. Sebastian County has had, as other counties, only one set of county officials. We are unable to construe Amendment 55 as being intended to permit the creation, consolidation, or abandonment of any county office by a dual authority — two quorum courts. Further, we do not think the intent of the people in enacting Amendment 55 was that two quorum courts in a county rather than one would determine the number and compensation of deputies, county employees, and fill any vacancy that might occur in a county wide elective office. Also, the amendment provides that each county have not less than nine and not in excess of fifteen justices of the peace to constitute its quorum court. It is readily apparent from a population standpoint that one district might have only nine and the other district might have fifteen. Naturally, this would pose considerable conflict with reference to the discharge of a quorum court’s duties with respect to the county offices.
Appellee asserts that “[I]t is apparent that no thought was given to Sebastian County’s unique position until the enabling legislation was considered and at that time it was expressed in clear and unequivocal terms, in Section 13 of Act 128. ...” We have held that where provisions are omitted from a constitutional amendment which is proposed by the legislature, as here, either by design or mistake, the courts have no power to supply them. Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656 (1912). Likewise, in the case at bar, we cannot supply a provision to Amendment 55 that would permit each of the districts to have a separate quorum court.
Reversed and remanded. | [
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Frank Holt, Justice.
The appellant Alcoholic Beverage Control Board granted appellant Smith’s petition to transfer a retail liquor license to within 200 yards of appellee church. The trial court reversed the Board’s action pursuant to Ark. Stat. Ann. § 48-310 (Repl. 1964) which, in pertinent part, reads:
No new permit shall be issued for the location of a business within two hundred (200) yards of any church
Appellants assert for reversal that this statute § 48-310 (§ 2 of Act 352 of 1939) was illegally enacted by the legislature. Therefore, the appellant Board’s “Regulation #124” (as authorized by Ark. Stat. Ann. § 48-203 [c] [Repl. 1964]), which requires the retail outlet to be only in excess of 100 yards (and not 200 yards) from church property, is controlling as to the required distance. Appellants rely upon Matthews v. Bailey, Governor, 198 Ark. 830, 131 S.W. 2d 425 (1939), to the effect that Act 352 is invalid. The appellee, however, argues that Matthews is not the latest expression on the validity of the Acts enacted in 1939 and that decision is no longer authoritative or binding. We agree with the appellants that § 48-310 is invalid.
On January 4, 1939, the governor appointed the Honorable Paul Gutensohn to fill a vacancy in the Arkansas State Senate. This procedure, however,'was in direct conflict with a mandate by the electorate as reflected by Amendment 29, § 1, Ark. Const. (1874). Two months previous to the appointment this constitutional Amendment was enacted and in pertinent part reads: “Vacancies in the office of **** the general assembly **** shall [not] be filled by the governor.” Subsequent to this obviously invalid appointment, the senate enacted Act 352 of 1939 (§ 48-310) by a vote of 18 to 11. It is stipulated that Gutensohn’s vote was one of the 18. Therefore, without his vote the Act would not have received the necessary majority vote of the senate as is required by Art. 5, § 2, Ark. Const. (1874). Now, after approximately 36 years, the validity of this particular Act is squarely presented for the first time by this appeal. Bell v. Adams, 243 Ark. 895, 422 S.W. 2d 691 (1968). However, we are not without precedent as to the validity of a legislative act voted upon by Gutensohn during the 1939 session. In Matthews, supra, the issue was whether the emergency clause of Act 4 of 1939 was validly adopted. Gutensohn’s vote constituted the required majority. We held that he was neither a de jure nor de facto senator. We said:
It will be conceded that the governor has not the power to appoint members of the Legislature, and has never had. As an express condemnation of the policy of appointing, Amendment No. 29 to the Constitution was adopted November 8, 1938, and became effective thirty days thereafter.
In determining Gutensohn was not a de facto official, we further said:
We find no case of our own holding that legislation enacted by the vote of a stranger to the Senate or the House is sacrosanct.
There are no instances where it has been said that designation by appointment contrary to the Constitution shall have the force of election, or that the admitted right of the Senate and the House to judge of the qualifications, returns and election of members goes to the extent of nullifying the Consitution. Those elected to the General Assembly take an oath to support the Constitution, and there is no presumption that senators and representatives do not intend to adhere to the basic, law, and they do attempt to obey it.
‡ ‡ ‡ $ The general rule is that when an official, person or body, has apparent authority to public office, and apparently exercises such authority, and the person so appointed enters on such office, and performs its duties, he will be an officer de facto, notwithstanding there was want of power to appoint in the body or person who professed to do so, or although the power was exercised in an irregular manner.
Then we emphatically said:
In the instant case there was no apparent authority to appoint Gutensohn; and, although the latter served energetically and with a high degree of intelligence, the service was not that of of a senator; nor could he have been a de facto officer in view of the want of apparent authority by the appointive agency.
In Trussell v. Fish, 202 Ark. 956, 154 S.W. 2d 587 (1941), the county assessor appointed an ineligible deputy. We held that since the assessor had the appointive authority, although exercised improperly or ineffectively, the appointee deputy was a de facto official, citing Matthews, supra, but distinguishing it on the basis that the appointing officer there had neither actual nor apparent authority.
Appellee vigorously asserts that Matthews was overruled either specifically or by implication in Pope v. Pope, 213 Ark. 321, 210 S.W. 2d 319 (1948). (See also Howell v. Howell; Stevens v. Stevens, 213 Ark. 298, 208 S.W. 2d 22 [1948] which followed the reasoning in Matthews with reference to dejure and de facto officials.) In Pope the issue was the validity of Act 42 of 1947 where the legislature created a division of chancery court and at the same time appointed a chancellor to serve in this division.
The court held in Pope and Howell-Stevens that the naming of a chancellor was unconstitutional and beyond the legislature’s power. However in Pope, contrary to Howell-Stevens, we held the chancellor named by the legislature to a de jure position constituted a de facto official and, therefore, the chancellor’s acts as a judge were lawful.
We cannot agree with appellee that Matthews, when applied to the case at bar where the pertinent facts are vir tually identical, is not binding and controlling. In Matthews we said it is an invalid appointment and contrary to our constitution. In doing so we declined to give a de facto status to this appointment because there was not even “apparent authority” for the governor to make the appointment. In fact, the appointment was specifically prohibited by a very recent amendment.
It is stipulated, as was said in Matthews, that although the senate is the “sole judge" of the qualifications and election of its members, Ark. Const., Art 5, § 1, there was no finding by the senate that Gutensohn was a member of that body. Neither was he compensated as other members. Only by a special act of the legislature was payment provided. Furthermore, we have construed Amendment 29 as being an “express condemnation” by the people as to the practice of the governor to appoint members to the general assembly. Matthews. We are unwilling to recede from our decision in Matthews and specifically hold that it has not been overruled, either specifically or by implication, since the issue there, as here, concerned the validity of the appointment by the governor to the legislature. We unequivocally held the appointment was without apparent authority and contrary to the constitution. Therefore, the appointee’s vote was that of a “stranger”„and without a de facto basis. It is well established that the legislature is deemed cognizant of our decisions respecting statutory interpretation whenever it enacts legislation. The legislature, during the intervening 36 years since our decision in 1939, has met biennially and sometimes in extraordinary sessions. Apparently it has not considered it necessary to correct the obviously invalid 1939 enactment. To the contrary, the appellant Board has continued to exercise its legislative authority in formulating regulations such as the pertinent one in the case at bar. Regulaion 124 as authorized b.y § 48-203 (c).
It follows that it becomes unnecessary to discuss appellant’s other contention that the trial court had no jurisdiction in that appellee did not comply with the terms of the Administrative Procedure Act.
Reversed and remanded.
Harris, C.J., dissents. | [
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PER CURIAM.
Phillip Todd Chenowith was convicted of multiple counts of kidnapping and rape, and one count of aggravated robbery in connection with criminal episodes involving prostitutes that occurred on March 15, 1993, and March 30, 1993. He received Ufe sentences for the rape convictions and terms of years for the other offenses. This court affirmed his conviction and sentence in Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995). Chenowith subsequently filed a timely petition for postconviction relief in which he alleged that his trial counsel was ineffective for fading to move for a dismissal because of a violation of the speedy-trial rule, and for fading to introduce the testimony of Chenowith and several alibi witnesses. The circuit court denied relief, and Chenowith now appeals that order. We find no error and affirm.
To prevad on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct fads within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting gudt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).
The following dates and periods of time are relevant to the speedy-trial issue:
March 30, 1993 — Date of arrest
August 30, 1993-September 24, 1993 — First period found excludable by the circuit court as a continuance that was granted to Chenowith.
September 25, 1993-January 18, 1994 — Second period found excludable by the court as a continuance granted to the State to obtain material evidence.
January 18, 1994-May 4,1994 — Third period found by the circuit court to be excludable because of congestion of the trial docket.
August 17, 1994 — Date Chenowith was tried.
The speedy-trial period began on the date of Chenowith’s arrest. Ark. R. Cr. P. 28.2(2)(a). The number of days that passed between the date of his arrest and the date of his trial totaled 505 days. Accordingly, if Chenowith’s counsel had moved for a dismissal, he would have made a prima facie showing of a violation of the rule, and the burden would have shifted to the State to show good cause for the delay. Jones v. State, 329 Ark. 603, 951 S.W.2d 308 (1997). Whether or not counsel was ineffective, therefore, would depend on whether the State would have been able to prove there would have been excluded periods sufficient to bring Chenowith’s trial within the speedy-trial period. In making this determination, we must apply the version of Rules 28.1 through 28.3 that was in effect at the time of Chenowith’s trial.
August 30, 1993-September 24, 1993 (25 days)
The circuit court first concluded that the period from August 30, 1993, to September 24, 1993, could be excluded pursuant to Rule 28.3(c), which provides that “the period of delay resulting from a continuance granted at the request of defendant or his counsel...” shall be excluded in computing the time for trial. The court found that a continuance was granted until October 6, 1993, but that the period chargeable to Chenowith was limited to September 24, 1993, because on that date, the State sought a continuance in order to allow for DNA testing.
There is no indication in the criminal docket that Chenowith was granted a continuance on August 30. While this is contrary to Rule 28.3(i), which requires that “(a)ll excluded periods shall be set forth by the court in a written order or docket entry,” this court has also held that it will uphold excluded periods without a written order or docket entry when the record itself demonstrates the delays were attributable to the accused and where the reasons were memorialized in the proceedings at the time of the occurrence. Goston v. State, 326 Ark. 106, 930 S.W.2d (1996).
The State argues that other documents in the record support the circuit court’s finding that Chenowith requested a continuance. The first of these is a trial notice that indicates that the trial has been “reset by attorney” to October 6, 1993. The other document is a computer printout that indicates the trial was “reset at the request of the defendant.” The computer printout also indicates that on August 30, 1993, the cases against Chenowith and his co-defendant, David Harder, were severed for trial. Chenowith subsequently received a trial notice for October 6, 1993. Under these circumstances, it appears that Chenowith requested the continuance until that date. The circuit court correctly concluded that this period could be excluded pursuant to Rule 28.3(c).
September 25, 1993-January 18, 1994 (116 days)
The next period excluded by the circuit court was September 25-January 18, 1994, when the State sought a continuance in order to obtain DNA testing. The circuit court concluded that this period could be excluded pursuant to Rule 28.3(d)(1), which provides that a continuance granted at the request of the prosecuting attorney shall be excluded in computing the time for trial if the “continuance is granted because of the unavailability of evidence material to the state’s case, when due diligence has been exercised to obtain such evidence and there is reasonable grounds to believe that such evidence will be available at a later date.”
The continuance was granted during a hearing that took place on September 24, 1993. At that time, the State alleged that DNA testing was necessary only as to one of Chenowith’s alleged victims. Although there was a discussion about whether the prosecutor and defense counsel would jointly move for the continuance, Chenowith’s attorney, at the conclusion of the hearing, stated unequivocally that it was not a joint motion. After it was clear that it was not a joint motion, the prosecutor then stated, “(T)his is on the State’s motion and therefore speedy trial will not be tolled on it.” The events that occurred during the hearing were described by the trial court in the following docket entry:
9/24/93 ■ — ■ D appd u>/ atty. State’s motion to do DNA testing granted.
The next hearing regarding the DNA evidence occurred on December 20, 1993. At that time, the prosecutor informed the court that her office learned from the FBI that “testing was still in progress.” The prosecutor then requested more time in order for the DNA tests to be completed. The trial court granted the State’s request. The docket entry that pertains to this hearing reads:
12/20/93 — D app’d w/atty. report reset.
The last hearing that involved the DNA evidence occurred on January 18, 1994. During that hearing, the prosecutor informed the court that the FBI could not complete the DNA tests because “there was not enough DNA submitted to complete a full DNA analysis.” The State then requested that the case be set for trial. The case was then set to begin on May 4, 1994. The events of this hearing were recorded in the following docket entry:
1/18/94 — D app’d w/atty. FBI unable to do DNA testing.
In his brief, Chenowith contends that the circuit court was clearly erroneous when it excluded the time period between September 24, 1993, and January 18, 1994. First, he points to the prosecutor’s statement at the close of the hearing on September 24, when she declared that the period should not be excluded, and the' trial court’s apparent agreement with that statement. Chenowith also suggests that the fact that the DNA tests were never completed indicates a lack of due diligence on the part of the State.
The ability of the State to use this period to overcome a motion for dismissal does not depend on the statements of the prosecutor at the close of the hearing, but rather, on its ability to prove the criteria in Rule 28.3(d)(1): (1) the evidence sought is material to the State’s case; (2) the State has exercised due diligence to obtain the evidence; and (3) there are reasonable grounds to believe that such evidence will be available at a later date. The tests were no doubt sought by the State in order to establish a genetic link between Chenowith and the samples that were collected in the rape kit that was performed on one of the victims. The materiality of that evidence is demonstrated by the fact that once it was established that the tests could not be performed, the charges involving the victim were dismissed. Further, the fact that the DNA tests could not be completed does not necessarily indicate a lack of due diligence on the part of the State, as the tests needed to first be attempted before it could be determined that the samples were insufficient. Accordingly, the State would have met the criteria for the application of Rule 28.3(d)(1), and the 116 days from September 24, 1993-January 18, 1994, could have been excluded under the rule.
In its order, the circuit court also found that the period between January 18, 1994, and May 4, 1994, could be excluded due to congestion of the trial docket. We need not discuss this ruling, however, as it is clear that the two excluded periods that occurred between September 24, 1993, and January 18, 1994, were sufficient to bring Chenowith’s trial within the time period provided by the rule.
In summary, if Chenowith’s attorney had filed a motion to dismiss pursuant to the speedy-trial rule, the State would have been able to prove that the 25-day period between August 30, 1993, and September 24, 1993, and the 116-day period between September 24, 1993, and January 18, 1994, would have been properly excluded under Rule 28.3. When these periods are subtracted from the 505 days that passed between Chenowith’s arrest and trial, the result is 364 days. For speedy-trial purposes, Chenowith was tried within a year of his arrest, and his attorney did not perform deficiently when he did not move for a dismissal of the charges.
Chenowith next argues that his attorney was ineffective for failing to put forth an adequate defense. Specifically, Chenowith argues that his counsel was ineffective for (1) misrepresenting, during his opening statement, that he would call three witnesses; (2) for failing to introduce the testimony of alibi witnesses; and (3) for refusing to allow Chenowith to testify in his own behalf. Chenowith further alleges that the prejudice from counsel’s failure is indicated in the result of his co-defendant’s trial, in which the alleged witnesses testified and an acquittal was obtained.
During the postconviction hearing, Chenowith testified that he informed his attorney of alibi witnesses who could have established that on March 15, 1993, the first date that the offenses allegedly occurred, he was at his home in Leslie, Arkansas. Chenowith also stated that his attorney knew of his desire to testify and told him that he would introduce his testimony. Chenowith further testified that during his opening statement, his attorney told the jury that he was going to call three witnesses. Chenowith testified that he did not know of counsel’s decision not to introduce his testimony, or the testimony of the two alibi witnesses, until he rested the defense case without calling a single witness.
Chenowith’s attorney testified that while he interviewed the alibi witnesses and had them present and ready to testify during the trial, he had concerns about the accuracy of their testimony. He also testified that he did not offer an alibi defense because he thought it would be inconsistent with his cross-examination of the victims, in which he sought to establish that their encounters with Chenowith were consensual. Consent, according to counsel, was the defense that Chenowith himself had claimed prior to trial. Counsel further stated that he filed a motion in limine to prevent the State from impeaching Chenowith with any one of his ten prior convictions, but when that motion was unsuccessful, he advised Chenowith not to testify. Regarding the representations he made about the wit nesses he planned to introduce for the defense, counsel testified that he could not remember the contents of his opening statement.
Chenowith first argues that his counsel performed deficiendy when he told the jury, during his opening statement, that he was going to call three witnesses. According to Chenowith, when counsel failed to follow through with this plan, it suggested to the jury that the defense “had something to hide.” He then cites United States v. Johnson, 531 F.2d 169 (3rd Cir. ); cert. denied, 425 U.S. 997 (1976) for the proposition that such a misrepresentation satisfies the first prong of the Strickland analysis.
We first note that the only indication we have that counsel made such a statement during his opening remarks is Chenowith’s testimony during the postconviction hearing. The opening statements were apparently never transcribed for the direct appeal. Accordingly, we have no record of the alleged misrepresentation.
Even so, we conclude that this argument has no merit. Chenowith’s reliance on United States v. Johnson is not persuasive. In that case, the defense attorney told the jury during his opening remarks that he would present alibi evidence when in fact he knew, at the time he made those representations to the jury, that the testimony could not be introduced. The court stated, “(u)nder the facts of this case, we agree that a lawyer of normal competence would have recognized the danger of such a promise knowing that no alibi witness would be available and the petitioner would not testify.” The court concluded, however, that Johnson was not prejudiced because the remark was isolated and because the jury was instructed that they could not draw any adverse inferences from Johnson’s decision not to testify. In this case, Chenowith contends that his trial counsel made a similar misrepresentation to the jury, and that it was neither isolated nor cured by an appropriate jury instruction.
Johnson would not support a finding of deficient performance in this case. While the Court of Appeals for the Third Circuit concluded that counsel’s opening remarks would constitute deficient performance, a footnote in the opinion stated the following caveat:
We do not intimate, however, that a lawyer of normal competence could not promise to produce evidence in his opening statement and then change his mind during the course of the trial and not produce the promised evidence. By trial counsel’s own admission, this did not occur in this case.
Johnson, 531 F.2d at 176. During the postconviction hearing, Chenowith’s counsel testified about his assessment of the evidence at the close of the State’s case:
The Defense strategy that we had used was that these girls consented to these acts. And I felt like on cross examination we had brought out a lot of things in that favor, that they voluntarily got in the car, that they discussed price, that all this kind of thing. That whatever they gave them a ride home. I thought all of that really the jury would consider it should have at least reduced the charges substantially....But I didn’t put on any more witnesses because I didn’t think it got any better and it could only get worse.
Other evidence introduced during the postconviction hearing indicated that the alibi witnesses were present and ready to testify. Accordingly, this case differs from Johnson in that it is apparent that Chenowith’s attorney was ready, if necessary, to proceed with a defense. The fact that he decided, after reflecting on the State’s case, to not go forward with a defense does not render his performance constitutionally deficient. Rather, it is an example of a strategic decision by counsel, and we have consistently held that matters of trial strategy and tactics, even if arguably improvident, are not grounds for a finding of ineffective assistance of counsel. State v. Clemmons, 334 Ark. 440, 976 S.W.2d 923 (1998); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993).
Chenowith’s next argument, that counsel was ineffective for fading to introduce alibi witnesses, overlaps with the first. It can be resolved in a similar manner. The decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999); Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client. Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996). When assessing an attorney’s decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that exper ienced advocates could endlessly debate, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Johnson 325 Ark. 44, 924 S.W.2d 233. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland. State v. Dillard, supra.
Chenowith offered the testimony of only one of the alibi witnesses during the postconviction hearing. Lisa Garrison, Chenowith’s girlfriend, could have testified that Chenowith was with her in Leslie, Arkansas on the morning of March 15, 1993. She stated that Chenowith watched their daughter as she ran errands, and she produced a check that she wrote that morning. The other alleged alibi witnesses, Jessie and Colleen Hightower, did not testify at the postconviction hearing.
We affirm the circuit court’s denial of this claim as a matter of trial strategy. Chenowith did not introduce the testimony of all of the alibi witnesses he claims should have been called during his trial, and therefore, he has not sustained his burden of proving that his attorney’s strategic decision to refrain from calling those witnesses and rely on the consent defense was professionally unreasonable. Furthermore, Ms. Garrison and the Hightowers could have only established an alibi for March 15, 1993, only one of the dates that Chenowith was accused of engaging in criminal activities. As for the check that Ms. Garrison wrote as she ran errands on the morning of March 15, it could only prove that she was in Leslie, Arkansas that morning.
In his last argument, Chenowith contends that his trial counsel was ineffective for refusing to allow Chenowith to testify in his own behalf. According to Chenowith, he did not know that his attorney would not introduce his testimony until he rested the defense. Chenowith contends that he had a constitutional right to decide whether or not to testify, and that his counsel interfered with that right when he refused to put his client on the stand. Chenowith’s attorney testified that he did not “refuse” to put Chenowith on the stand, but that he advised Chenowith not to testify because of his record of ten prior felony convictions.
The accused has the right to choose whether to testify in his own behalf. Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988). Counsel may only advise the accused in making the decision. Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984). The decision to testify is purely one of strategy. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985).
The testimony is conflicting on the issue of whether Chenowith made the decision, pursuant to counsel’s advice, to refrain from testifying or whether counsel misled Chenowith into believing he would testify and then refused to introduce his testimony at the appropriate point of the trial. The circuit court, in concluding that this was an issue of trial strategy, apparently resolved the conflict and found that Chenowith’s attorney advised him not to testify. We are bound by this finding because the resolution of credibility issues is within the province of the trial court. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).
Under the circumstances of this case, counsel’s advice was not professionally unreasonable. After the trial court denied counsel’s motion in limine the State could have impeached Chenowith’s alibi testimony with his ten prior felony convictions.
Affirmed.
Counsel’s representation during opening remarks was not isolated because at the close of the State’s case, when the trial court asked him the number of witnesses he intended to call, he stated “three. | [
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DONALD L. Corbin, Justice.
Appellant Eleanor Matstappeals ice. of the Arkansas Workers’ Compensation Commission denying her claim for benefits for bilateral carpal tunnel syndrome from her employer, Appellee Jefferson Hospital Association. The Commission found that Appellant failed to prove by a preponderance of the evidence that her injury arose out of and in the course of her employment with Appellee, and that a work-related injury was the major cause of her disability and need for medical treatment. The Arkansas Court of Appeals affirmed the Commission’s decision, by a tie vote, in Matthews v. Jefferson Hospital Ass’n, 67 Ark. App. 55, 991 S.W.2d 629 (1999). We granted Appellant’s petition for review of that decision pursuant to Ark. Sup. Ct. R. l-2(e)(i). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). We affirm the Commission’s decision.
In appeals involving claims for workers’ compensation, we view the evidence in a light most favorable to the Commission’s decision and affirm the decision if it is supported by substantial evidence. Id.; Ester v. National Home Ctrs., Inc., 335 Ark. 356, 981 S.W.2d 91 (1998). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Williams v. Prostaff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). There may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972). See also Arnold v. Tyson Foods, Inc., 64 Ark. App. 245, 983 S.W.2d 444 (1998). In other words, we will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Pickett, 336 Ark. 515, 988 S.W.2d 3; Ester, 335 Ark. 356, 981 S.W.2d 91. With this standard in mind, we examine the Commission’s findings.
The Commission’s opinion reflects that Appellant first became employed with Appellee on March 1, 1981. She held a number of administrative positions with Appellee over the years. At the time of her claim, Appellant was employed as a receptionist and assistant to the administrator of the Davis Life Care Facility. She had held that position since August 1992. While employed at the Davis Facility, Appellant sought workers’ compensation benefits for symptoms of bilateral carpal tunnel syndrome that she reportedly began experiencing in February 1996. Appellant ultimately came under the care of Dr. John Lytle, an orthopedist. Dr. Lytle diagnosed Appellant as having bilateral carpal tunnel syndrome. He also observed a cystic-type mass in one of her hands. Dr. Lytle performed carpal-tunnel-release surgery on Appellant’s right wrist on December 31, 1996. The medical evidence submitted to the Commission consisted of a letter to Appellant’s counsel from Dr. Lytle and five office notes recorded by Dr. Lytle. In an office note dated January 9, 1997, Dr. Lytle wrote: “This is, in my opinion, a work-related problem from her long-term history of being a typist.”
A hearing was held before the administrative law judge (ALJ) on April 16, 1997. In a September 2, 1997" opinion, the ALJ denied Appellant’s claim on the ground that she failed to demonstrate that she sustained a compensable injury established by objective medical evidence. Appellant then appealed to the Commission.
After conducting a de novo review of the entire record, the Commission concluded that Appellant “failed to show by the greater weight of the credible evidence that she sustained carpal tunnel syndrome arising out of and in the course of her employment” with Appellee. The Commission found that Dr. Lytle’s opinion that her injury was causally related to a long-term history of employment as a typist was based on an erroneous impression that Appellant engaged in some form of hand-intensive job duties for Appellee. In making this finding, the Commission relied on Appellant’s testimony that she performed various work activities at the Davis Facility including answering telephone calls; handling all filing, photocopying, payroll, and personnel records; interviewing applicants; keeping minutes of all meetings; working with Medicare and Medicaid forms; and running various errands for the facility. The Commission also pointed to Appellant’s testimony that only twenty-five to forty percent of her time was spent typing. The Commission thus found that Dr. Lyde’s opinion regarding the etiology of Appellant’s injury was based on a misunderstanding of her actual work duties at the Davis Facility.
The Commission also relied on inconsistencies in Appellant’s testimony regarding the onset of her symptoms. On direct examination, Appellant testified that she first experienced pain and numbness in her right arm and hand in February 1996, while she was at home laying in bed. On cross-examination, however, Appellant testified that she had previously felt numbness in her right hand in 1994, while exercising at a health club. Dr. Lytle’s opinion made no reference to Appellant’s 1994 symptoms, leading the Commission to infer that his diagnosis was not based on an accurate history. The Commission thus concluded that Dr. Lytle’s opinion was entitled to very little weight.
The court of appeals affirmed the Commission’s decision primarily on the basis that Appellant’s argument, which consisted of only two paragraphs, failed to cite any convincing argument or relevant citation of authority. Additionally, the court of appeals noted that Appellant’s brief erroneously relied on the ALJ’s findings rather than the findings of the Commission.
On review to this court, Appellant’s argument is again only two paragraphs long. The only legal authority cited by Appellant does not provide any support for her argument; rather, it merely sets out the relevant standard of review. Thus, given the lack of any convincing argument or legal authority, we, too, affirm the Commission’s decision. We have stated on occasions too numerous to count that we will not consider the merits of an argument if the appellant fails to cite any convincing legal authority in support of that argument, and it is otherwise not apparent without further research that the argument is well taken. See, e.g., Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000); National Bank of Commerce v. Dow Chem. Co., 338 Ark. 752, 1 S.W.3d 443 (1999). Moreover, as noted by the court of appeals, Appellant’s argument challenges only the findings of the ALJ, not those made by the Commission. The ALJ’s findings are irrelevant for purposes of this appeal, as we are required by precedent to review only the findings of the Commission and ignore those of the ALJ. See, e.g., Scarbrough v. Cherokee Enters., 306 Ark. 641, 816 S.W.2d 876 (1991); Graham v. Turnage Empl. Group, 60 Ark. App. 150, 960 S.W.2d 453 (1998); Crawford v. Pace Indus., 55 Ark. App. 60, 929 S.W.2d 727 (1996). We thus affirm the Commission’s decision.
Brown and Thornton, JJ., dissent.
SMITH, J., not participating.
Pursuant to Ark. Sup. Ct. R. 2-4, when a petition for review is granted, the parties are required to file fourteen additional copies of the briefs previously submitted to the court of appeals. Additionally, any party may request permission to submit a supplemental brief. No such request was made by Appellant here. | [
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J. Fred Jones, Justice.
This is an appeal by Arkansas State Highway Employees Local 1315 from an order of the Pulaski County Circuit Court denying a petition for a writ of mandamus directing the Arkansas State Highway Commission to deduct union dues from the salaries and wages of the members of appellant Employees Local 1315.
The appellant contends that the trial court erred in dismissing its petition and argues that under Ark. Stat. Ann. § 13-349 (B) (7) (Supp. 1973) it is entitled to the relief prayed; that the statute places a mandatory duty on the Commission to deduct union dues from wages when requested by the employee, and the Commission has no discretion in failing or refusing to do so when so requested. That portion of the provision of the statute on which the appellant relies, reads as follows:
“Deductions from the payrolls of State employees, both regular and extra help, shall be permitted only for the following purposes:
(7) payment of union dues when requested in writing by State employees.”
The question before the trial court was whether this statutory provision was mandatory or permissive, and the question before us on appeal is whether the trial court erred in determining that it was permissive and not subject to mandamus. Ark. Stat. Ann. § 13-349 (B) (Supp. 1973) is a part of the “General Accounting Procedures” Law pertaining to public finances as finally digested following several legislative Acts and amendments.
Ark. Stat. Ann. § 13-349 (A) (Supp. 1973) pertains to monthly, weekly and hourly salaries, and subsection (B) in its entirety reads as follows:
“PAYROLL DEDUCTIONS. Deductions from the payrolls of State employees, both regular and extra help, shall be permitted only for the following purposes: (1) withholding taxes; (2) social security contributions; (3) contributions to any State Retirement System or approved plan of deferred compensation; (4) group hospital and medical and life insurance deductions; (5) payments to State employees’ credit unions; (6) value of maintenance (prerequisites); (7) payment of union dues when requested in writing by State employees; (8) purchase of United States Government Savings Bonds; and (9) for such other purposes as specifically authorized by law, but not enumerated in this subsection. Provided, that such deductions as arc authorized by this subsection shall be made in compliance with rules, regulations and procedures established by the Chief Fiscal Officer of the State.”
The legislative history and overall purpose of the statute are of some value in determining whether this payroll deduetion provision of the statute is mandatory or permissive and, thus, whether its enforcement is subject to the extraordinary remedy of mandamus.
The original Act 412 of 1955 was entitled:
“An Act to Provide for and Establish General Accounting Procedure for the State of Arkansas and Its Agencies, in Connection with Budget and Pre-Audit Practices, the Recording of the Receipts and Expenditures of State Funds, and Other General Fiscal Transactions."
The purpose of the Act, as recited therein, was as follows:
“(A) To establish budget making procedure and define the duties and responsibilities in connection therewith of the Executive and Legislative Departments of the state government.
(B) To provide for certain budget controls in order to prohibit deficit spending.
(C) To establish and define a system of pre-audit procedure for the expenditure of all state funds.
(D) To establish regulations and uniform procedure for the preparation of payrolls and other disbursement documents for state agencies; and to promulgate rules and regulations with respect to travel, revolving and petty cash funds, reimbursements and other general fiscal transactions.
(E) To further define the powers and duties of the State Comptroller, and the additional duties of the State Auditor and State Treasurer in connection with general accounting procedure and fiscal practices.”
Section 5 of the 1955 Act set up budget controls and provided for each agency to file certain information with the State Comptroller for an allotment system promulgated by the Comptroller with the approval of the Governor.
By Act 165 of 1963 Section 5 of Act 412 of 1955 was amended by adding a new paragraph providing in part as follows:
“(2) The State Comptroller shall describe and explain to each State agency the requirements of the General Assembly in connection with the disbursements of appropriations made available to the agency, and particularly the procedure to be followed in establishing budget accounts within the item of appropriation for ‘maintenance and general operation.' For the purpose of uniformity in procedure, and in order to carry out the intentions of the General Assembly in providing for such budget controls, the State Comptroller shall have the power and authority to make reasonable rules and regulations in connection with all budget practices, and shall have the authority to establish standards for, and set our definitions of the terms used in, the itemized listings of the proposed budget for ‘maintenance and general operation’ as provided for in the appropriation act for each State agency, and for such other items of appropriations as are classified by Section 11 of this Act.”
Section 11 of the 1955 Act recited the purpose of expenditure analysis and budget control, and designated certain classifications under which the appropriations of the General Assembly should be classified. The general classifications so designated were for personal services including regular salaries and extra help, maintenance or general operation, grants and aid, permanent improvements and construction and special appropriations and allotments. Section 13 (B) provided that the State Comptroller should establish a system of classifying the disbursements of state funds in accordance with the object and purpose of such expenditures, and required that he “shall prepare an expenditure code manual covering the system of classifying expenditures, and shall supply all state agencies with a copy of the same.”
By Act 165 of 1963 section 11 of the 1955 Act was also amended pertaining to classification for personal services under regular salaries and extra help and the payroll deduction provision was added to this classification as follows:
“(A) Personal Services — For Regular Full-Time or
Part-Time State Employees:
(A-l) Regular Salaries. This classification shall be applicable to all salaries for state employees where the number and maximum amounts of such salaries are established by law, as provided by Article 16, Section 4 of the Constitution of the State of Arkansas.
(A-2) Extra Help. This title shall be applicable to all part-time or temporary employees, as provided for by law; and unless specifically provided for by the appropriation measure, the number and rates of pay for such temporary employees shall not exceed, at any one time, those established by law for regular salaries for comparable services for the agency having such appropriation for Extra Help.
(A-3) Payroll Deductions. Deductions from the payrolls of state employees, both regular and extra help, shall be permitted only for the following purposes: (1) withholding taxes; (2) social security contributions; (3) retirement systems; and (4) group hospital and medical insurance deductions, w'here paid in their entirety by the insured state employees; provided that the payroll for any agency shall not contain more than one group deduction for such hospital and medical insurance for any given pay period.”
By Act 86 of 1965 subsection (A-3) of section 11 of the 1955 Act was amended to “Permit Payroll Deductions from the Salaries of State Employees for Payments to State Employees’ Credit Unions,” and provided as follows:
“SECTION 1. Subsection (A-3) of Section 11 of Act 142 of 1955, as amended, the same being Sub-Section (A-3) of Section 13-311 of the Arkansas Statutes of 1947, is hereby amended to read as follows:
‘(A-3) Payroll Deductions. Deductions from the payrolls of state employees, both regular and extra help, shall be permitted only for the following purposes: (1) withholding taxes; (2) social security contributions; (3) retirement system; (4) group hospital and medical insurance deductions, where paid in their entirety by the insured state employees; provided that the payroll for any agency shall not contain more than one group deduction for such hospital and medical insurance for any given pay period; and (5) payments to state employees’ credit unions.' ”
By Act 133 of 1967 section 11 of the 1955 Act was again amended to read as follows:
“ ‘Payroll Deductions. Deductions from the payrolls of state employees, both regular and extra help, shall be permitted only for the following purposes: (1) withholding taxes; (2) social security contributions; (3) retirement systems; (4) group hospital and medical insurance deductions, where paid in their entirety by the insured state employees; provided that the payroll for any agency shall not contain more than one group deduction for such hospital and medical insurance for any given pay period; payments to state employees’ credit unions; and (5) payment of union dues when requested in writing by state employees.
SECTION 2. This Act shall take effect July 1, 1967.”
This Act was approved February 23, 1967. Subsection (A-3) of the 1955 Act was again amended in the same 1967 session of the Legislature by Act 487, approved April 4, 1967, and this Act in its entirety reads as follows:
“AN ACT to Amend Act 412, Arkansas Acts of 1955, as Amended, Section 11 (A-3) [Ark. Stats. (1947) Section 13-311 (A-3)]; to Authorize Deductions From the Salaries of Employees for Value of Employees Maintenance; and for Other Purposes.
Be It Enacted by the General Assembly of the State of Arkansas:
SECTION 1. Act 142, Arkansas Acts of 1955, as amended, Section (A-3) [Ark. Stats. (1947) Section 13-311 (A-3)] is amended to read as follows:
‘Payroll Deductions. Deductions from the payrolls of state employees, both regular and extra help, shall be permitted only for the -allowing purposes: (1) withholding taxes; (2) social security contributions; (3) retirement systems; (4) group hospital and medical insurance deductions; (5) payments to state employees’ credit unions; (6) value of maintenance (prerequisite) as determined by the governing board, commission or head of a state agency; and (7) payment of union dues when requested in writing by state employees.'
SECTION 2. All laws and parts of laws in conflict with this Act are hereby repealed.
SECTION 3. The provisions of this Act shall be effective as of February 1, 1967, other than Item 7, above, which shall become effective July 1, 1967.
SECTION 4. It has been found and determined by the General Assembly that Public Law 89-601 establishes certain minimum wage and overtime payment requirements for certain state agencies, and that the value of maintenance (prerequisite) received by an employee is a definite factor in determining his rate of pay, especially in establishing uniformity of payment for comparable duties and responsibilities, therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of public peace, health and safety shall be in full force and effect from and after its passage and approval.
APPROVED: April 4, 1967."
By Act 876 of 1973 the “General Accounting Procedures” law of 1955, with all amendments thereto, was outright repealed and the entire subject was covered in this one comprehensive Act with section 23 (B) of this Act reading as follows:
“PAYROLL DEDUCTIONS. Deductions from the payrolls of State employees, both regular and extra help, shall be permitted only for the following purposes: (1) withholding taxes; (2) social security contributions; (3) contributions to any State Retirement System or approved plan of deferred compensation; (4) group hospital and medical and life insurance deductions; (5) payments to State employees' credit unions; (6) value of maintenance (prerequisites); (7) payment of union dues when requested in writing by State employees; (8) purchase of United States Government Savings Bonds; and (9) for such other purposes as specifically authorized by law, but not enumerated in this subsection. Provided, that such deductions as are authorized by this subsection shall be made in compliance with rules, regulations and procedures established by the Chief Fiscal Officer of the State."
Section 28 of this Act, under “Rules and Regulations, provided as follows:
“The Chief Fiscal Officer of the State is hereby empowered to make, amend, and enforce, such reasonable rules and regulations, not inconsistent with law, as he shall deem necessary and proper to effectively carry out the provisions of this act and the public policy as herein before set forth; and the same shall be published in an ‘Administrative Procedures Manual' and distributed to the various State agencies."
This Act was made effective from and after July 1, 1973, and section 33 of the Act provides as follows:
“This Act repeals and replaces Act 412 of 1955 and all laws amendatory thereto. (Sections 13-301, et seq. Ark. Stats. Ann.)”
As already stated, this case comes to us on the denial of a petition for writ of mandamus' and, of course, mandamus is not a writ of right but is directed to the sound discretion of the court, and the parties applying for it must show a specific legal right and the absence of any specific legal remedy. Goings v. Mills, 1 Ark. 11. See also Fitch v. McDiarmid, 26 Ark. 482; State v. Bd. Dir. School Dist. of Ashdown, 122 Ark. 337, 183 S.W. 747.
In Ark. State Highway Comm’n v. Otis & Co., 182 Ark. 242, 31 S.W. 2d 427, the legislative Act involved was stated as follows:
“Section 1 of act 153 of the Acts of 1929 provides that, as soon as possible, the commission shall ascertain the amount of the valid outstanding indebtedness provided for in the act.. To ascertain means to find out or to determine the amount of such indebtedness. In the discharge of the mandate of the statute, it became the duty of the commission to determine the amount and validity of the claims presented.”
Twenty-four of the twenty-six claimants under this Act had reduced their claims to judgments and it was admitted that the claims of the other two claimants were correct as to amounts and the balances due upon them. In a mandamus action brought by the claimants the Highway Commission contended that according to the construction it placed upon the Act under which the claims accrued, it concluded it could not legally pay the claims. During the progress of the trial an opportunity was given the Commission to ascertain the validity and amount of each claim and the Commission refused to do so. The trial court awarded a writ of mandamus against the Arkansas State Highway Commission and adjudged that it should pay the amount of the claims. In reversing the judgment of the trial court on abuse of its discretion, this court said:
“Mandamus is an extraordinary remedy which is awarded not as a matter of right but in the exercise of a sound judicial discretion. It is resorted to for the purpose of securing judicial or ^wcii-judicial action, and not for determining in advance what that action shall be. A party to be entitled to the right must show that he has a clear, legal right to the subject-matter and that he has no other adequate remedy. Merritt v. School District, 54 Ark. 468, 16 S.W. 287; Rolfe v. Spybuck Drainage Dist. No. 1, 101 Ark. 29, 140 S.W. 988; Patterson v. Collinson, 135 Ark. 105, 204 S.W. 753; Snapp v. Coffman, 145 Ark. 1,223 S.W. 360; Duncan Townsite Co. v. Lane, 245 U.S. 308, 38 S. Ct. 99; and Ex parte Wagner, 249 U.S. 465, 39 S. Ct. 317.”
In 55 C.J.S. § 64, at p. 104, is found the following language:
“The duties which will be enforced by mandamus must be clear legal duties, that is, duties which are clearly, specifically, and peremptorily enjoined by law.”
And at p. 108 of this section is found the following:
“It is not sufficient that a statute or ordinance should merely authorize or permit an act to be done to authorize the issuance of a writ of mandamus to compel the performance of the act; the statute must be mandatory and not merely permissive, and must not confer any discretion in the matter; and it has been held that mandamus should not issue to enforce a duty gathered by doubtful inference from a statute of uncertain meaning.”
By the above citations we are not saying that the appellant pursued the wrong remedy in the case at bar, nor do the appellees make such contention. What we do say, however, is that before we can reverse the trial court in its refusal to grant a petition for mandamus, we must find that the duties, the performance of which are sought to be mandated, are clear legal duties specifically and peremptorially enjoined by law, and that the trial court abused its discretion in denying the petition for the writ. We arc unable to reach such conclusion in the case at bar.
From a careful examination of the language employed in Ark. Stat. Ann. § 13-349 (B) (Supp. 1973), as that subsection was amended from time to time, and when examined in the light and context of the entire Act, we are forced to the conclusion that the “payroll deduction” provision as confined to § 13-349 (B) is permissive rather than mandatory. Certainly we cannot say it is clearly mandatory.
This subsection of the statute had the attention of the Legislature at least on five different occasions. As first enacted in 1965, the wording was that “Deductions from the payrolls of state employees, both regular and extra help, shall be permitted only for the following purposes.” This wording was never changed as additional purposes were added to the ones for which payroll deductions were first permitted.
Deduction for union dues was the only item or purpose requiring request, or authority, from the employee and certainly if deductions for union dues were mandatory upon written request of the employee under purpose No. 7, deductions would be mandatory for the remaining eight purnnse« where no requests are required. We are forced to the conclusion that under this statutory provision payroll deductions are permitted for the purposes therein enumerated and are not permitted for any other purposes nor required.
It would appear that the entire payroll deduction provision of the statute was enacted for the protection of state employees against payroll deductions except for the purposes therein enumerated. The ninth purpose added to the list in § 23 (B) of the 1973 Act, supra, lends credence to such overall purpose interpretation. The wording of this added purpose with our own emphasis and bracketed comments states: “(9) for such other purposes as specifically authorized [not required] by law, but not enumerated in this subsection [obviously subsection (B)]. Provided, that such deductions as are authorized [not required] by this subsection [(B)] shall be made in compliance with rules, regulations and procedures established by the Chief Fiscal Officer of the State.”
As above set out, the State Comptroller, and later the Chief Fiscal Officer of the State, was given considerable latitude in devising rules and regulations for the actual disbursement of money appropriated for the various state agencies and departments by the Legislature, and it would appear that the 1973 Act charged the State Fiscal Officer with establishing rules, regulations and procedures for the payroll deductions he was authorized to permit.
The judgment is affirmed.
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Robert L. Brown, Justice.
The appellants, Anthony and stice. paternal grandparents of Tyler Davis Johnson, who is the child of appellee Melissa Tompkins and appellants’ deceased son, Jeffrey Johnson. Melissa Johnson, now Tompkins, and Jeffrey Johnson were divorced shortly after Tyler’s birth, and Melissa Johnson retained custody of Tyler. She then married Kenneth Tompkins in 1992. On September 25, 1998, Jeffrey Johnson died, and on December 30, 1998, Kenneth Tompkins, with the consent of Melissa Tompkins, filed a petition to adopt Tyler in the Saline County Probate Court. On January 6, 1999, the Tompkinses sent notice to the Johnsons that the petition for adoption had been filed and that a hearing on the matter had been set. On January 20, 1999, the Johnsons filed a response to the adoption petition. They asserted that the adoption would not be in Tyler’s best interest, and they asked the court to deny the petition. The Tompkinses then filed a motion to strike the response and contended that the Johnsons were not parties who were required to consent to the adoption under Ark. Code Ann. § 9-9-206 (Repl. 1998). Thus, according to the response, the Johnsons were not entided to file a responsive pleading.
On April 20, 1999, the adoption hearing was held. At the hearing, the Johnsons maintained that they should be allowed to present evidence on whether the adoption would be in Tyler’s best interest. The probate court found that while the applicable statute (Ark. Code Ann.. § 9-9-212(g) (Repl. 1998)), required notice to grandparents in adoption cases, it did not grant them an opportunity to be heard or to present evidence on the matter. On May 3, 1999, the trial court entered an order granting the adoption. In that same order, the probate court awarded visitation rights to the Johnsons.
The Johnsons urge in this appeal that they had a statutory right to be notified of the adoption and that, accordingly, due process affords them the additional right to be heard in the proceeding on whether the adoption is in the best interest of the child. They point specifically to § 9-9-212(g), the notice statute, but they also rely on this court’s decision in Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981). The Quarles decision, they contend, supports their position that they should have been afforded an opportunity to present evidence on the merits of the adoption. The Tompkinses counter that § 9-9-212(g) affords grandparents the opportunity to request visitation rights but not the authority to contest the adoption on the merits as an intervening party.
Section 9-9-212(g) provides:
When one (1) parent of a child or children is deceased, and the parent-child relationship has not been eliminated at the time of death, and adoption proceedings are instituted subsequent to such decease, the parents of the deceased parent shall be notified under the procedures prescribed in this subchapter of such adoption proceedings.
This court has consistently held that adoption statutes are to be stricdy construed and applied. See, e.g., Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994); Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992). Moreover, in Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981), this court said: “any rights existing in grandparents must be derived from statutes....” Id. at 304, 619 S.W.2d at 620.
It is clear that under § 9-9-912(g), the Johnsons had a right to notice of the adoption proceedings. And they received the required notice. But the statute does not grant to grandparents a right to intervene or a right to be heard in adoption proceedings. Under a strict construction analysis, we have no doubt that had the General Assembly intended to include a right to be heard by notified grandparents, it could easily have done so. Indeed, the General Assembly has specifically granted an opportunity to be heard together with the right to notice in other contexts. See, e.g., Ark. Code Ann. §§ 9-9-220 (Supp. 1999) (relinquishment and termination of parent and child relationship); 9-9-224 (Supp. 1999) (child born'to unmarried mother); 9-17-401 (Repl. 1998) (petition to establish support order).
The Johnsons are correct that in Quarles v. French, supra, this court held that under the facts of that case, the grandparents could be heard. But the facts in that case were different. In Quarles, we addressed the issue of whether the appellants, who were grandparents, had standing to intervene in the adoption proceedings for their grandchildren, who were children of their deceased child. The appellants’ son had died after he and his wife, the appellee, had divorced. The appellants were awarded full custody of their grandchildren for a period of approximately nine months under an order of the chancery court. Custody was later returned to the mother, but the grandparents were given weekend visitation rights. Later, the mother remarried and her husband sought to adopt the children. The grandparents were given statutory notice of the proceedings, and they moved to intervene. The probate court denied the motion and entered a final decree of adoption.
In reversing that decision, this court said that the question to be resolved is “do the visitation rights previously granted them by the chancery court confer a sufficient interest in the adoption proceeding that appellants have standing to intervene?” Quarles, 272 Ark. at 53, 611 S.W.2d at 758. We then noted that in at least two previous decisions, we had held that grandparents standing in loco parentis had a sufficient interest in the adoption of natural grandchildren to entide them to intervene in an adoption proceeding. Id. (Citing Cotten v. Hamblin, 234 Ark. 109, 350 S.W.2d 612 (1961); Nelson v. Shelly, 268 Ark. 760, 600 S.W.2d 411 (Ark. App. 1980)). This court also found it important that the grandparents were parties to the earlier custody proceeding and had specific visitation rights granted to them by the chancery court. We noted that the decree of adoption would extinguish those rights without an opportunity to be heard. We then concluded:
This decision is restricted to the narrow principle that grandparents who have been granted visitation pursuant to Ark. Stat. Ann. § 57-135 have a sufficient interest in adoption proceedings to intervene for the limited purpose of offering such evidence as may be relevant to the focal issue, i.e., whether the proposed adoption is in the best interest of the children.
Id. at 54, 611 S.W.2d at 759.
We followed this same approach in Cox v. Stayton, supra. The Cox case involved adoption proceedings for three children. The children had been taken from the custody of their parents and were temporarily placed in the custody of their grandparents, who were the appellants in the case. The children were later placed with foster parents. When the foster parents sought to adopt the children, the grandparents attempted to intervene to show that the adoption would not be in the best interest of the children. The trial court allowed the intervention but granted the adoption of each of the children. On appeal, the grandparents argued that the adoption statutes were unconstitutional because they deprived grandparents of their rights to the grandchildren without due process of law. This court found no merit to this argument and said:
The appellants’ argument fails to identify a foundation or basis for the alleged rights which they claim have now been lost. Before we may apply the tests of constitutionality, there must be a showing of some right or interest which is protected by the Constitution. Here we find none. As we have pointed out previously, at common law grandparents have no presumptive right to custody or adoption of their grandchildren, nor even a right of visitation, absent an order of the chancery court. We are drawn to the conclusion that any rights existing in grandparents must be derived from statutes, as in Ark. Stat. Ann. § 57-135 (Supp. 1979), or conferred by a court of competent jurisdiction pursuant to statutes. (Citations omitted.)
Of paramount importance in this case, as in all adoption and custody matters, is what is in the best interest of the child. Quarles, above. In the present case, the appellants have been allowed to intervene in the adoption proceeding to present whatever evidence may have been relevant to the best interest of these children. Having had that opportunity, their rights have been preserved to them.
Id. at 304-305, 619 S.W.2d at 620-621.
The present case does not fall within the ambit of these decisions for several reasons. In both Quarles and Cox, the grandparents had had court-ordered visitation rights prior to the adoption proceedings and also at one time had had legal custody of their grandchildren. This court held that because the grandparents stood in loco parentis to their grandchildren in both cases, they had standing to intervene in the adoption proceedings. In the case before us, however, the Johnsons have never had custody of Tyler. Custody has remained at all times with Melissa Tompkins. Further, while in their response to the petition for adoption the Johnsons alleged that they had visitation rights prior to the filing of the adoption petition, these rights were not court-ordered. Instead, the visitation rights were the result of a mutual agreement between the parties while the Johnsons’ son was still alive. Melissa Tompkins discontinued those grandparental visits following the death of Jeffrey Johnson. We conclude that because the Johnsons had no court visitation rights regarding Tyler prior to the initiation of the adoption proceedings and had never stood in loco parentis to their grandchildren, this court’s reasoning in Quarles and Cox does not apply.
Without a statutory grant enabling the Johnsons to be heard on the issue of Tyler’s adoption or caselaw supporting their due process claim, there is no basis for reversing the probate court’s order.
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John A. Fogleman, Justice.
Appellant Swaim was found guilt of delivery of a controlled substance. He was arraigned August 23. 1973, on the charge, which was filed June 19, 1973. He entered a plea of not guilty. Thereafter he employed Larry R. Froelich, who had been admitted to the practice of law in Texas, but not in Arkansas, to represent him. Pretrial motions on behalf of appellant were filed by Froelich on September 7 and September 18. On Monday, October 1, 1973, the date set for trial of the case, the circuit judge forbade Froelich to participate in the proceedings, except by advising his co-counsel William H. Howell during recesses of the trial.
While the record is not as clear as it might be, it seems that the judge had originally approved the representation of Swaim by Froelich, so long as this attorney was associated with local counsel admitted to practice in Arkansas. Sometime during the week preceding the trial date, the judge advised Froelich that he was uninformed about Froelich’s credentials. Later the judge called the Supreme Court clerk’s office and learned that Froelich had not been admitted to practice in Arkansas. He also learned that Froelich had a Fayetteville telephone number listed in the name of “Howell & Froelich”. When the case came on for trial, the judge advised Froelich, who seems to have been a resident of Arkansas, that he was engaging in the unauthorized practice of law in Arkansas and asked him not to participate in the trial in any way, except in the advisory capacity previously mentioned. When Froelich objected the judge said that he would have the sheriff keep Froelich out of the courtroom. Howell, who was present, protested that he could not go to trial. The trial judge and Froelich sharply disagreed about their prior understanding concerning Howell’s participation. The judge understood that Froelich had said that Howell was associated in the case and would take over the trial. Froelich denied this and admonished Howell not to go to trial. The judge then stated: “We are going to trial. You just make your record.” Howell then moved for a continuance, stating that he was an associate and partner of Froelich, that Froelich had made the investigation of the case and interviewed the witnesses, that Howell’s only participation in the preparation for trial had commenced on the preceding Friday, when he began doing research and working with Froelich, and that he felt that he could not adequately represent Swaim as “lead counsel" upon such short notice. After defendant's motion to quash the jury panel had been denied, the trial proceeded after a noon recess. The defense was entrapment. During the trial, the court noted that a secretary had been bringing messages to Howell into the courtroom during the morning when the motion to quash the jury panel was being heard.
After trial, appellant requested an evidentiary hearing on a motion for new trial, without success.
Appellant asserts that he was denied the effective assistance of counsel, and that the court abused its discretion in failing to grant a continuance and erred in failing to grant a hearing on his “post-conviction” motions. We have concluded that Swaim was prejudiced by the denial of his motion for a continuance by reason of the fact that he was thereby denied effective assistance of counsel.
It is rather apparent that there was a misunderstanding between Froelich and the circuit judge of which both Howell and Swaim were unaware prior to the trial date. It seems clear that not even Froelich knew that he would be completely barred from the courtroom during the trial until the court’s pronouncement at the very time the trial was scheduled to commence. We cannot agree that the opportunity for conferences during recesses of the trial afforded an adequate opportunity for Howell to avail himself of the knowledge and information acquired by Froelich in trial preparation. We cannot say that Howell or Swaim was guilty of any lack of diligence in the matter. We are not prepared to say that the record in the case dispels any thought that Howell was not adequately prepared.
Appellant attempted to attack the composition of the jury panel by a motion to quash, and sought to support his motion by the testimony of an expert mathematician. Howell’s examination of this witness failed to elicit critical testimony which would have tended to show that the disparity between the makeup of the jury panel and a cross-section of the community, as reflected by the expert's sampling of the voter registration list, could only have resulted from systematic exclusion. After presenting the testimony of the mathematician and of the jury commissioners, Howell had requested that, because of the handicap under which he was operating, he be given a short recess. He stated, for the record, that since he had not talked with the mathematician about his testimony prior to the convening of the court, he was uncertain that he had brought out the essential factors. After the jury was empanelled and sworn, the court granted Howell a 15-minute recess. Thereafter, Howell asked that the motion to quash be “reopened” and the mathematician be recalled for further testimony. When the prosecuting attorney objected, the court refused to grant this request, but permitted Howell to make a statement for the record. In that statement Howell said that the witness, if recalled, would testify that the chances that the particular disparity would occur without discrimination were 820,866,000 to 1.
The only other time, prior to the presentation of evidence, the court afforded Howell to enhance his information about the case and the theories of the defense, was a noon recess from 11:50 a.m. to 1:30 p.m. This recess followed a hearing on a motion in limine as well as the proceedings-relative to the motion to quash the jury panel, but preceded the making of opening statements. The court also recessed the trial until 9:00 a.m., October 2, after the state, having presented the testimony of three witnesses, had rested sometime during the afternoon of October 1.
On several occasions, Howell attempted to elicit testimony pertaining to the entrapment defense through leading questions or offered testimony that was improper for the purposes he stated. Some of these will be later discussed in connection with other points for reversal. These errors could well be attributable to Howell's lack of preparation for trial.
Swaim was entitled to have a record made on his motion to quash the jury panel adequate for appellate review of the federal constitutional question he raised, and to be represented at trial by an attorney whose pre-trial preparation enabled him to develop a trial strategy and to plan the appropriate trial tactics for overcoming the effect oi evidence he might anticipate would be presented on behalf of the state, and for carrying the burden of proving entrapment. It matters not that it may appear to us, on the record made, that the contentions of appellant on these issues are without merit. It does concern us that the attorney did not have adequate opportunity to acquaint himself with Swaim’s version of the case, the state’s evidence, the knowledge possessed by defense witnesses and the underlying theory of the defense.
In reviewing the denial of motions for continuance based upon alleged inadequacy of time for preparation for trial by a defendant’s attorney, we have been hesitant about finding an abuse of discretion, because of the superiority of the trial judge’s perspective, his grasp of the particular situation and his knowledge of developments which are not matters of record. See Therman v. State, 205 Ark. 376, 168 S.W. 2d 833. Before holding that there has been abuse, we view the totality of the circumstances, particularly on the question of prejudice. See Wolfe v. State, 255 Ark. 97, 498 S.W. 2d 878.
We find little help from opinions in cases where the inability of counsel to prepare for trial was attributable to the defendant’s negligent or dilatory action. Neither can we rely upon those cases wherein prejudice was not alleged or shown. This case is also unlike those in which the inadequacy of trial counsel’s preparation was not called to the judge’s attention before the trial commenced. In this case, Swaim, the most interested party involved, cannot be held to blame. Even if it might be said that he should have employed an attorney admitted to pratice in Arkansas, we cannot hold him totally responsible when even the circuit judge was misled as to the status of Froelich. Certainly he cannot be said to have been privy to the misunderstanding between Froelich and the circuit judge. Upon the totality of the circumstances and the necessary emphasis upon a defendant’s right to the effective assistance of counsel, we have concluded that the motion for continuance should have been granted and that the judgment must, for this reason, be reversed.
We find no error upon consideration of those remaining points for reversal asserted by appellant which are likely to arise upon a new trial.
One Jimmy Brewer was called as a witness by appellant. Howell asked leading questions of the witness and the prosecuting attorney’s objections were sustained. Appellant sought to justify this type of examination on the basis that Brewer, who had testified that he had to “work a few deals” in order to get marijuana charges against him dropped, was a hostile witness. According to appellant, Brewer occupied the same position as a government agent would and, because of this, was a hostile witness.
Leading questions on direct examination are allowed under special circumstances which make it appear that the interests of justice require it. Ark. Stat. Ann. § 28-705 (Repl. 1962). Determination whether special circumstances justify direct examination of a witness by leading questions is a matter lying within the sound judicial discretion of the trial judge. Southern Cotton Oil Co. v. Campbell, 106 Ark. 379, 153 S.W. 256. One of the special circumstances under which a witness may be asked leading questions on direct examination arises when the witness appears to be hostile to the examiner. Sinclair v. Barker, 236 Ore. 599, 390 P. 2d 321 (1964). It is to be assumed, however, that a witness is not hostile to the party by whom he is called. Ill A Wigmore on Evidence (Chadbourne Rev.) 699, § 909 (1970). Although this assumption may not apply to an adverse party, still he is not necessarily a hostile witness. Sinclair v. Barker, supra. See Superior Forwarding Co. v. Sikes, 233 Ark. 932, 349 S.W. 2d 818. It is only when a witness is patently biased or manifestly appears, or is shown to be, hostile that leading questions are allowable on this ground. Sinclair v. Barker, supra; Rossano v. Blue Plate Foods, Inc., 314 F. 2d 174 (5 Cir.1963).
The determination whether a witness is hostile is to be made by the trial judge, in the exercise of a sound judicial discretion, and may be based upon such circumstances as the demeanor of the witness, his situation and relationship to and with the parties, his interest in the case and the inducements he may have for withholding the truth. Sinclair v. Barker, supra; III Wigmore on Evidence (Chadbourne Rev.) 167, (1970) § 774; A Jones on Evidence (6th Ed.) 97, § 24:12 (1972). See also, Rossano v. Blue Plate Foods, Inc., supra; Superior Forwarding Co. v. Sikes, supra. The mere fact that Brewer was cooperating with the police in investigating suspected illegal drug activities did not necessarily make him so hostile to the defendant that the trial judge had no discretion in determining whether leading questions were allowable. We find no abuse of discretion on the showing made here.
Appellant also asserts that the court erred in sustaining the state’s objection to testimony offered through his witnesses Carnes and Gosnell. He contends that the evidence was admissible on the question of entrapment in that it had a bearing on his state of mind and willingness to engage in criminal conduct at the time of the alleged offense. In the case of Carnes, an objection was sustained as to evidence bearing on threats made against her by Bill Burnett, the officer who arrested Swaim and who engaged in the transaction upon which the charge against Swaim was based. The objection was that the question by which the testimony was elicited was leading. It obviously was. Appellant then attempted to show by this witness that Burnett, who had denied that he carried a gun or threatened or intimidated appellant, had threatened him, using a gun. This evidence was offered as an attack on Burnett’s credibility. On that basis, the trial judge correctly ruled that this was a collateral inquiry and the testimony inadmissible.
Appellant has failed to specifically point out to us the testimony of Gosnell he contends was erroneously excluded or the purpose for which it was admissible. The state suggests that this testimony would have been that Burnett offered to sell drugs to Gosnell. If so, it seems that the testimony would have been irrelevant to the issue and, if an attack on Burnett’s credibility, it was collateral. The state also suggests that it relates to other proffered testimony similar to that offered through the witness Carnes. The relevant inquiry was made by a leading question, to which an objection was sustained. Otherwise, the inquiry was about collateral matters. We find no error in the rulings as to these witnesses questioned here.
The judgment is reversed and the cause remanded for a new trial.
Appellant filed a second motion for an evidentiary hearing on a motion for new trial, accompanied by an affidavit by Howell. We do not consider either this motion or the affidavit. Even though the state briefed the case as if the affidavit was properly before us, we find that the motion and affidavit were filed after appellant had filed his notice of appeal. The trial court correctly held that it had no jurisdiction to act at that time. | [
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George Rose Smith, Justice.
On June 14, 1972, the appellant was fined $10 in the Pine Bluff municipal court, upon a charge of “driving left of center.” Within two weeks he appealed to the circuit court, apparently remaining at liberty on bond. On June 24, 1974, the circuit court set the case for trial on July 18. On July 9 the appellant filed a motion to dismiss the case, on the broad ground that he had been denied a speedy trial as guaranteed by the federal constitution and the state constitution and statutes. On the date set for trial, July 18, the circuit court entered an order dismissing the appeal from the municipal court and directing that a capias issue against the defendant to enforce the municipal court’s judgment. The defendant filed a notice of appeal from that order.
In this court the appellant argues that the trial court should have granted his motion to dismiss the charge, because the case was not brought to trial in the circuit within three terms of court, as required by Ark. Stat. Ann. § 43-1709 (Repl. 1964). To support his argument the appellant relies upon our holding in Holland v. State, 252 Ark. 730, 480 S.W. 2d 597 (1972).
' Upon the meager record before us we cannot sustain the appellant’s contention. In Holland the appellant showed by stipulation and apparently by other proof that three terms of court had elapsed since her arrest and that the delay had not happened upon her application. In the case at bar there is no similar proof. The appellant, as the moving party, had the burden of proving facts to support his motion to dismiss, but there is actually no proof in the record. If a hearing was held, we have no transcript of the proceedings. Apart from the pleadings and the judgment the record contains only a copy of the court’s docket sheet, which contains notations of the order setting the case for trial, of the denial of the motion to dismiss, and of the dismissal of the appeal. There is no showing that the docket sheet was introduced in evidence. A docket notation is not the entry of a judgment and cannot be used to supply a deficiency in the record. Hollaway v. Berenzen, 208 Ark. 849, 188 S.W. 2d 298 (1945). Hence there is no proof that the delay did not happen upon the appellant’s application.
Affirmed. | [
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W.H.“Dub” ARNOLD, Chief Justice.
Appellant, Charles ustice. challenging a decision of the Workers’ Compensation Commission denying his claim for medical expenses and temporary total-disability benefits. In a published decision dated January 19, 2000, the Arkansas Court of Appeals reversed the Commission’s decision. See Frances v. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000). Pursuant to Ark. Sup. Ct. R. 2-4 (2000), we granted review of the appellate court’s decision. Viewed in the light most favorable to the Commission’s decision, we hold that substantial evidence supports the denial of benefits. Accordingly, we affirm the Commission’s decision because we agree that such benefits may not be awarded under the instant facts and in the absence of medical testimony sufficient to satisfy the requirements of Ark. Code Ann. section ll-9-102(16)(B) (Supp. 1999).
The parties agree that on September 23, 1996, Frances was injured while working for appellee, Gaylord Container Corporation. At the time of the accident, Frances had worked for appellee for approximately thirty-four years. According to Frances’s testimony, on the day of the accident he was clearing away paper, broken during processing, from a paper machine when a scanner struck him on his left side, causing him to twist to the floor in an awkward motion to avoid being seriously injured. Following the accident, Frances continued to work until mid-November, when he missed two days of work.
Eventually, Frances sought medical treatment on December 2, 1996, from Dr. Clyde Paulk, who referred him to Dr. Robert D. Dickins, Jr. Following an MRI scan, Dr. Dickins diagnosed Frances with a possible herniation. Frances then began conservative treatment, including physical therapy, and continued to work full-time, until his back condition failed to improve. Ultimately, on September 3, 1997, he underwent surgery and remained off work until January 7, 1998.
Frances’s co-worker, Brian Flamblin, an eight-and-a-half-year employee who worked as third-man on the paper machine for four years, corroborated the September 23, 1996, incident. Specifically, Hamblin testified that Frances’s shirt was torn and that his arm was cut following the incident. Hamblin also recalled that Frances reported the incident to supervisors and completed an accident report with the foreman. Two to three days after the accident, Hamblin observed that Frances “laid up on the counters” because of back pain and that he began walking with a limp.
Randy Womack, a four-year employee who worked as the fourth-hand on the paper machine in September of 1996, testified similarly. Womack reported that Frances told him that the “scanner had caught him.” Womack also observed that Frances’s “arm was bleeding and his shirt was torn” after the accident. Moreover, he related that three days after the accident, Frances told him that his back was hurting and he was feeling numbness in his leg.
Bobby Young, Frances’s auto mechanic, testified that in November of 1996, Frances came in Young’s shop “walking crooked.” According to Young, Frances told him that he had an accident at work and had hurt his back. Young also added that he had been Frances’s mechanic for ten years, and Frances never indicated that he had been hurt any other way.
After Frances filed his claim for workers’ compensation benefits, the Administrative Law Judge determined that the claim was compensable and ordered Gaylord to pay appellant related medical expenses and temporary total-disability benefits from September 3, 1997, through January 7, 1998. Gaylord appealed the ALJ’s decision to the Workers’ Compensation Commission, which reversed the ALJ and found that Frances had failed to prove that his back condition was the result of any work-related accident.
Notably, the Commission also found that Dr. Dickins’s opinion failed to satisfy the requirements of Ark. Code Ann. section 11-9-102(16) (B) (Supp. 1999), which provides that medical opinions addressing compensability must be stated “within a reasonable degree of medical certainty.” The relevant portion of Dr. Dickins’s letter report, relating to causation, states:
As you are aware, the determination of onset of symptoms related to an injury is determined based on the history a patient gives the physician. The description of the injury Mr. Francis sustained is included in my consultation report dated December 6, 1996. The statement that I can make about this is that the mechanism of injury that he describes could produce a lumbar disc injury. The history given that he initially sustained back pain and then four weeks later had recurrent back and leg pain could be consistent with an injury to the disc initially, subsequently followed by the development of a herniation of that disc.
(Emphasis added.)
Following the Commission’s decision reversing the ALJ’s award, Frances appealed to the Arkansas Court of Appeals. The appellate court reversed and remanded the case, reasoning that the Commission had no substantial basis to deny compensability. Although the appellate court agreed that credibility determinations were left to the Commission, it submitted that the Commission was not free to arbitrarily disregard any witness’s testimony. See Frances, 69 Ark. App. at 30, 9 S.W.3d at 553. From the appellate court’s decision reversing the Commission, comes the instant appeal. Notably, when we grant a petition to review a case decided by the Court of Appeals, we review it as if it was filed originally in this court. See Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997) (citing Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996)).
I. Substantial evidence
Appellant’s first point on appeal challenges the sufficiency of the evidence supporting the Commission’s decision denying him benefits. On appeal, this court will view the evidence in the light most favorable to the Commission’s decision and affirm when that decision is supported by substantial evidence. Ester v. National Home Ctrs., Inc., 335 Ark. 356, 361, 981 S.W.2d 91 (1998) (citing Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998); Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997)).
Substantial evidence exists if reasonable minds could reach the same conclusion. Id. Moreover, we will not reverse the Commission’s decision unless fair-minded persons could not have reached the same conclusion when considering the same facts. Id. Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997).
Although appellee Gaylord acknowledges that the September 23, 1996, accident occurred, it contends that Frances’s injuries are not attributable to the accident. In support of its position, appellee cites instances when Frances reported other causes as the source of his condition, including statements to medical providers and insurance carriers that his injury was not work-related. For example, Gaylord points to Frances’s initial statement to his treating physician that his injuries were not work-related. Next, Frances told Dr. Dickins that he had a subsequent work-related accident in November of 1996, which caused his pain. Frances also denied work-relatedness when he applied for group health benefits. Furthermore, Frances suggested to his co-worker Brian Hamblin that his back problem was caused by old age rather than a work-related accident.
Likewise, Gaylord suggests that Frances’s work history disproves a causal link between the September accident and his subse quent injuries. First, Frances continued to work full duty for nearly a year following the incident and missed only two days of work. Second, Frances delayed seeking medical treatment until December 2, 1996, more than two months after the September accident. Third, he delayed surgery until almost a year after the incident. Fourth, following a meeting with supervisors in January of 1997 to discuss his medical treatment plan, Frances informed his employer that he would handle his medical bills privately in lieu of filing a workers’ compensation claim.
In response, Frances suggests that he elected to pay his own way because he was told that if he filed a claim, it would probably be denied and his insurance might stop paying. Apparently confused as to the consequences of signing the workers’ compensation claim forms and seeing appellee’s doctors, Frances opted to continue treatment with his own physicians. In any event, Gaylord argues that these facts provide substantial evidence to support the Commission’s decision to deny benefits. We agree. Viewed in the light most favorable to the Commission’s decision, we conclude that substantial evidence supports the denial of benefits. Accordingly, we affirm the Commission and reverse the Court of Appeals.
II. Section 11-9-102(16)(B)
The second issue before us on appeal concerns the interpretation of the clause “within a reasonable degree of medical certainty,” as set forth in Ark. Code Ann. section 11-9-102(16) (B) (Supp. 1999). At the heart of the instant appeal is Dr. Dickins’s report opining that the accident, as described by Frances, could have caused the herniation and need for surgery. The Commission determined that this opinion fell short of the statutory requirement that opinions must be stated within a reasonable degree of medical certainty. See Ark. Code Ann. § ll-9-102(16)(B) (Supp. 1999). On the other hand, Frances argues that Dr. Dickins’s failure to use the magic words “reasonable medical certainty” does not, by itself, invalidate the opinion. In that vein, Frances cites the Court of Appeals’ decision in Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998).
In Atwood, the Court of Appeals quoted favorably from a Nebraska Supreme Court decision which explained that:
. . . expert medical testimony based on “could,” “may,” or “possibly” lacks the definiteness required to meet the claimant’s burden to prove causation. Our well-known preference for the use of phrases “reasonable degree of medical certainty” or “reasonable degree of probability” is an indication to courts and parties of the necessity that medical expert opinion must be stated in terms that the trier of fact is not required to guess at the cause of the injury.
Atwood, 61 Ark. App. at 196-97, 966 S.W.2d at 913 (quoting Paulsen v. State, 249 Neb. 112, 121, 541 N.W.2d 636, 643 (1996)). Following this direct quote from the Paulsen case, the Atwood court reasoned that although the court expressed a preference for certain phrases:
"... an expert opinion is to be judged in view of the entirety of the expert’s opinion and is not validated or invalidated solely on the basis of the presence or lack of the magic words ‘reasonable medical certainty.’ ”
Atwood, 61 Ark. App. at 197, 966 S.W.2d at 913 (quoting Paulsen v. State, 249 Neb. 112, 121, 541 N.W.2d 636, 643 (1996)).
In its petition for review, Gaylord submitted that the appellate court’s decision in Frances v. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000), was in conflict with Atwood. We agree. In quoting with favor from Paulsen, the Court of Appeals acknowledged in Atwood that medical opinions based upon “could,” “may,” or “possibly” lack the definiteness required to meet the claimant’s burden to prove causation. However, in conflict with that expressed position, the Atwood court determined that a physician’s opinion was sufficient when he opined that although eye exams, before and immediately after the claimant’s injury, would be needed to clearly associate the injury to work-related events, acid “can cause” the claimant’s injury. Atwood, 61 Ark. App. at 197, 966 S.W.2d at 912-13. (Emphasis added.)
We expressly agree with the Nebraska Supreme Court’s decision in Paulsen that expert opinions based upon “could,” “may,” or “possibly” lack the definiteness required to meet the claimant’s burden to prove causation pursuant to section 11 — 9— 102(16(B). Accordingly, we modify and overrule the Court of Appeals’ decision in Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), to the extent that it may be read to permit expert opinion evidence under section ll-9-102(16)(B) to be satis fied by the use of terms such as “can,” “could,” “may,” or “possibly.”
We also note that although Atwood seemingly rejects an expert’s use of the word “could” when stating an opinion within a reasonable medical certainty, it validates an expert’s use of the word “can.” Given this inherent contradiction, it is understandable why Frances chose not to rely on the Atwood decision in support of his argument. Consequently, because Frances never cited or relied upon Atwood, we apply our limited overruling of Atwood retroactively. See Wiles v. Wiles, 289 Ark. 340, 342, 711 S.W.2d 789, 790-91 (1986); see also Looney v. Bolt, 330 Ark. 530, 536-37, 955 S.W.2d 509, 512 (1997). In conclusion, we hold that Dr. Dickins’s opinion that appellant’s work-related accident was the kind of event that could cause his resulting back condition was insufficient to satisfy section 11-9-102(16)(B).
CORBIN and Smith, JJ., concur in part, dissent in part. | [
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Donald L. Corbin, Justice.
This case involves allegations e. unjust discharge by Appellants Donna Stephens and Ray Stewart, two former teachers at the Arkansas School for the Blind (ASB). Appellees in this action are ASB and its individual Board members, Mark Riable, Houston Nutt, William Payne, Sharon Mazzanti, and Tommy Walker. Appellants filed suit in the Pulaski County Chancery Court seeking a declaration that the Board was without authority to terminate their employment pursuant Ark. Code Ann. §§ 6-43-102 and -104 (Repl. 1999); they contended that only the superintendent had the authority to discharge employees. Appellants also sought a fair and impartial hearing before the Board regarding their discharge, as provided in Ark. Code Ann. § 6-43-210 (Repl. 1999). The chancellor found that the Board did not discharge the employees, but that it made a budgeting decision to eliminate altogether the positions filled by Appellants. The chancellor found that once the Board’s decision caused Appellants’ services to no longer be needed, the superintendent discharged them. The chancellor also denied Appellants’ request for a hearing before the Board. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1 — 2(b)(1) & (6), as it presents issues of first impression requiring statutory interpretation. We find no error and affirm.
We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Simmons First Bank v. Bob Callahan Servs., Inc., 340 Ark. 692, 13 S.W.3d 570 (2000); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. Similarly, we review issues of statutory construction de novo, as it is for this court to decide what a statute means. Simmons First Bank, 340 Ark. 692, 13 S.W.3d 570; Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. With this standard in mind, we review the facts of this case.
The record reflects that Appellant Ray Stewart was employed as ASB’s recreational activity leader and Appellant Donna Stephens was employed as an English teacher for the sensory impaired. Appellants’ positions were eliminated by the Board effective February 21, 1997. Prior to this time, there had been discussions in the state legislature about the possibility of combining some of the services for ASB and the Arkansas School for the Deaf. Additionally, various members of the legislature and the Governor’s staff had voiced repeated concerns that ASB’s staff needed to be reduced. A study conducted by the Bureau of Legislative Research, Personnel Review Section, recommended the elimination of numerous positions at the school. Additionally, two members of the legislature repeatedly told Board members and ASB’s superintendent that the school needed to reduce its staff. According to the former superintendent, Dr. Ivan Terzieff, those two legislators were of the opinion that fourteen positions could be eliminated without affecting ASB’s operations. The impression left with the Board and the superintendent was that if they did not take action to reduce the school’s staff, the legislature would.
In January 1997, while Dr. Terzieff was superintendent, the Uniform Personnel Committee of the state legislature recommended that seven vacant positions be eliminated from ASB’s staff. According to Ken Garner, Personnel Director of the Bureau of Legislative Research, the Committee withheld action because there was some level of resistance to the cuts from Dr. Terzieff. Shortly thereafter, however, the Board terminated Dr. Terzieff and replaced him with Jim Hill, who was the school’s principal. Superintendent Hill was then charged by the Board to work with the state legislature in an attempt to reduce the school’s personnel. Following the Board’s instructions, Hill met with Garner. Garner did not direct which positions to eliminate; rather, he expected Hill to use his judgment as an administrator to pick the seven positions, whether they were filled or unfilled. Hill initially recommended the elimination of four unfilled positions and three filled positions, including those held by Appellants. Subsequently, Hill recommended the elimination of an additional filled position, making a total of eight positions.
The minutes of the Board’s February 20, 1997 meeting reflect that Board member Dr. Payne moved to eliminate eight positions: (1) Accountant; (2) Recreational Activity Leader Supervisor (the position held by Appellant Stewart); (3) Recreational Activity Leader II; (4) Administrative Assistant II; (5) Teacher III; (6) Teacher III; (7) Teacher III; and (8) Teacher IV (the position held by Appellant Stephens). Dr. Payne also moved that if his motion was approved, the personnel involved would be relieved of their responsibilities as of the end of the following workday. The motion was seconded, and the Board voted to eliminate the positions. As a result, Hill terminated Appellants the following day, with an additional thirty days’ pay.
During the trial below, Appellants contended that the Board lacked statutory authority to discharge them and that, accordingly, it had acted ultra vires in doing so. They argued that only the superintendent has the power to discharge ASB employees, and that upon such discharge, the employees are entitled to a hearing before the Board to determine whether their terminations were just. Appellants sought relief in the form of a fair and impartial hearing regarding their discharges and a declaration that the Board had no authority to discharge any ASB employee. The chancellor denied the requested relief.
In a well-reasoned opinion, the chancellor found that the Board is charged by statute with the control and management of the school, and that the Board must exercise such powers of supervision and control that are not specifically reserved to the superintendent. See section 6-43-102(a) and (b)(1). On the other hand, the chancellor found that the superintendent is entrusted with the immediate control and management of the school. See Ark. Code Ann. § 6-43-103 (a) (Repl. 1999). As part of the duty of immediate management, the superintendent has “the sole power to remove employees” of ASB and “may remove any employee at any time in [his] discretion for cause, but, in case of removal, he shall report the removal and the ground therefor to the board of trustees.” Section 6-43-104(b).
The chancellor determined that in passing the foregoing provisions, the legislature intended that the Board be in charge of, control, and direct the overall school operations, but that the superintendent be responsible for the day-to-day immediate management of the school. The chancellor found that, in this case, the Board had presented valid management reasons to ehminate some staff positions and free those funds for other purposes. The chancellor found further that the Board’s decision to ehminate these positions was a “budgeting decision,” based on the Board’s behef that the positions were no longer needed. The chancellor relied on section 6-43-210, which provides in part: “The teachers, officers, and employees shall perform such other duties as the superintendent may direct, and when their services are not needed, they shall he discharged.” (Emphasis added.) The chancellor reasoned that this provision was a specific determination by the legislature that ASB employees may be terminated when their positions are no longer needed.
Ultimately, the chancellor concluded:
Although the General Assembly must vote to fund the School’s budget, there is nothing in the statute to indicate the Board does not have the usual power of school boards to control development of its budget and determine priorities for funding. As such, the Board’s decision to ehminate certain positions to free the money for other purposes is not ultra vires. The Board did not discharge the employees. The Board acted properly in making a budgeting and administrative decision which resulted in elimination of the Plaintiffs’ positions. When the Board’s decision caused the Plaintiffs’ services to no longer be needed, the Superintendent determined which employees to terminate and followed through with those terminations.
The chancellor also concluded that Appellants were not entided to a hearing under section 6-43-210, because they did not meet their burden of proof that they were unjustly discharged.
For reversal, Appellants argue that the Board lacked the authority to discharge them, and that the chancellor therefore erred in finding that the Board’s actions were not beyond the scope of its powers. Appellants contend that only the superintendent may discharge employees, pursuant to section 6-43-104, and that upon his doing so, the discharged employees are entitled to a fair and impartial hearing before the Board under section 6-43-210. Appellants assert that all employees discharged by the superintendent, for any reason, are entitled to such a hearing.
The Board, on the other hand, contends that its decision to eliminate the eight positions was a policy decision, going to the heart of its authority to manage the school. The Board submits that it is the legislature’s intention, as evidenced by section 6-43-210, that it manage the school frugally and not staff positions that are no longer necessary. The Board asserts that its decision to eliminate the eight positions from the active-staff budget was based upon its belief that these positions could be eliminated with the least amount of damage to the educational purpose of the school. The Board points to the fact that Appellant Stewart’s position merely pertained to after-school recreation, and that his duties could be performed by other staff members. Similarly, the Board points out that at the time of its decision, ASB had one math teacher, one science teacher, and three English teachers. Thus, the Board asserts that if a teacher’s position was to be eliminated, an English teacher was a logical choice. Of the three English teachers, Appellant Stephens had the least seniority. In short, the Board contends that its decision to eliminate Appellants’ positions did not amount to a discharge of individual employees for cause, such that it would infringe upon the power reserved solely to the superintendent under section 6-43-104. We agree.
The particular statutes at issue here have not been interpreted by this court. The basic rule of statutory construction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute must be construed so that no word is left void or superfluous and in such a way that meaning and effect is given to every word therein, if possible. Id. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Id. Where the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id. (citing State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994)). Statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). As stated above, we are not bound by the decision of the trial court; however, in the absence of a showing that the trial court erred in its interpretation of the law, we will accept that interpretation as correct on appeal. Simmons First Bank, 340 Ark. 692, 13 S.W.3d 570.
Before reviewing the relevant statutory provisions, we note that it is not contended that the Board lacked authority to eliminate the four unfilled positions. Such authority resides within the Board’s statutory duties to manage and control the school, pursuant to section 6-43-102(a). The question then is whether the Board’s decision to eliminate the four filled positions, in addition to the unfilled positions, is tantamount to a decision to discharge the individual employees filling those positions. In other words, does the fact that some of the positions were filled at the time of their elimination change the nature of the Board’s actions, and, if so, did the Board exceed its authority in doing so?
Appellants contend that only the superintendent may discharge employees. Appellants are partly correct. Section 6-43-104(b) provides: “The superintendents shall have the sole power to remove employees of the respective schools and may remove any employee at any time in their discretion for cause, but, in case of removal, he shall report the removal and the ground therefor to the board of trustees.” (Emphasis added.) Thus, the superintendent’s power to discharge employees is limited to situations where there is cause for removal. Section 6-43-104(b) does not provide the superintendent with a carte blanche authority to discharge.
Conversely, section 6-43-210 provides:
The teachers, officers and employees shall perform such other duties as the superintendent may direct, and when their services are not needed, they shall be discharged. However, if the teachers, officers, and employees are unjustly discharged, they shall be entitled to a fair and impartial hearing before the board of trustees. [Emphasis added.]
Construing this provision in its entirety and in conjunction with section 6-43-104(b), it is clear that the legislature envisioned two different types of discharges. The first is the discharge of an employee whose services are no longer needed. This discharge is mandatory, as evidenced by the legislature’s use of the word “shall.” See, e.g., State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999); Fulmer v. State, 337 Ark. 177, 987 S.W.2d 700 (1999); Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986). The second type of discharge is that reserved to the superintendent in section 6-43-104(b) to remove any employee in his discretion for cause. It is this discretionary discharge that may trigger the hearing provided in section 6-43-210. Thus, employees who are mandatorily discharged because their services are no longer needed are not entitled to a hearing to determine whether they were “unjustly discharged.” To interpret section 6-43-210 any other way would lead to an absurdity.
Here, the evidence supports the chancellor’s finding that the Board’s decision to eliminate Appellants’ positions was due to the fact that they were no longer needed, and that the funds were needed to purchase computers and other technical supplies. It is of no consequence that the funds from AppeEants’ salaries could not automaticaEy be used to purchase these supplies. What is significant for purposes of this appeal is that the Board determined that AppeEants’ positions were no longer needed and that the eHmination of their positions would free up monies for the necessary supplies. Their discharges were thus of the mandatory type. As such, AppeEants were not entitled to a hearing under section 6-43-210.
Given our conclusion that AppeEants’ discharges were mandatory, and not discretionary, the question then is whether it is the function of the superintendent or the Board to carry out such mandatory discharges. The answer to this question is not found in the language of section 6-43-210. Nevertheless, we may infer that because this power is not specificaEy reserved to the superintendent, it lies within the authority of the Board. Section 6-43-102(b)(l) provides that the Board “shaE exercise such powers of supervision and control as are not specificaEy reserved to the superintendent.” Section 6-43-104(b) only reserves to the superintendent the discretionary power to remove employees for cause. Accordingly, the authority to discharge an employee whose services are no longer needed resides with the Board, pursuant to section 6-43-102(b)(l). Moreover, this court has observed that “[t]he rule appears to be well established that trustees have not only all powers specifically delegated, but such additional or implied powers that may be necessary to carry out the trust.” Lindsay v. White, 212 Ark. 541, 551, 206 S.W.2d 762, 767 (1947). As the creation or elimination of a position is a function of the Board, it follows that the Board has the authority to determine whether a position is no longer needed. We thus affirm the chancellor’s finding that the Board did not exceed its authority in eliminating Appellants’ positions and causing them to be discharged.
Affirmed.
A third plaintiff, Tina Maxey, took a voluntary nonsuit below. | [
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DONALD L. Corbin, Justice.
Appellant Arkansas Transit stice. carrier in the business of transporting mobile homes in interstate commerce. In February 1987, Appellant applied for workers’ compensation insurance coverage through the Arkansas Assigned Risk Pool. Appellee Aetna Life and Casualty was assigned to provide coverage to Appellant. Appellee issued a policy for the years February 7, 1991, to February 7, 1992, and March 13, 1992, to February 7, 1993. A subsequent audit of Appellant’s payroll records revealed that additional premiums were owed for those years. Appellant refused to pay the additional amounts, and Appellee filed suit in the Pulaski County Circuit Court. The issue was whether certain truck drivers retained by Appellant were employees or independent contractors. The trial court found that they were employees and ordered Appellant to pay insurance premiums in the amount of $108,223.21, plus costs and attorney’s fees. This case was certified to us from the Arkansas Court of Appeals, as presenting an issue of substantial public interest. Hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(4). We affirm.
For its sole point for reversal, Appellant argues that the trial court erred in ruling that the truck drivers were not independent contractors. Our standard of review on appeals from bench trials is whether the trial judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. See Ark. R. Civ. P 52(a); Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. We view the evidence in a light most favorable to the appellee, resolving all inferences in favor of the appellee. Id. Disputed facts and determinations of witness credibility are within the province of the factfinder. Id.
This court has long held that an independent contractor is one who contracts to do a job according to his own method and without being subject to the control of the other party, except as to the result of the work. See, e.g., Johnson Timber Corp. v. Sturdivant, 295 Ark. 622, 752 S.W.2d 241 (1988); Moore and Chicago Mill & Lbr. Co. v. Phillips, 197 Ark. 131, 120 S.W.2d 722 (1938); W. H. Moore Lbr. Co. v. Starrett, 170 Ark. 92, 279 S.W. 4 (1926). On the issue of control, this court has stated:
The governing distinction is that if control of the work reserved by the employer is control not only of the result, but also of the means and manner of the performance, then the relation of master and servant necessarily follows. But if control of the means be lacking, and the employer does not undertake to direct the manner in which the employee shall work in the discharge of his duties, then the relation of independent contractor exists.
Massey v. Poteau Trucking Co., 221 Ark. 589, 592, 254 S.W.2d 959, 961 (1953) (citing Moore and Chicago Mill & Lbr. Co., 197 Ark. 131, 120 S.W.2d 722). There is no fixed formula for determining whether a person is an employee or an independent contractor; thus, the determination must be made based on the particular facts of each case. Id.
The following factors are to be considered in determining whether one is an employee or independent contractor:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
Dickens v. Farm Bureau Mut. Ins. Co., 315 Ark. 514, 517, 868 S.W.2d 476, 477-78 (1994) (citing Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990) (citing Restatement (Second) of Agency § 220)). See also D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (1999). Of the foregoing, the right to control is the principle factor in determining whether one is an employee or an independent contractor. Id. It is the right to control, not the actual control, that determines the relationship. Taylor v. Gill, 326 Ark. 1040, 934 S.W.2d 919 (1996).
The factors pertaining to the nature of the worker’s occupation and whether it is a part of the regular business of the employer comprise the “relative nature of the work” test, recognized in Sandy v. Salter, 260 Ark. 486, 541 S.W.2d 929 (1976). There, this court adopted Professor Larson’s test for examining the relationship between the worker’s occupation and the regular business of the employer. This test requires consideration of two factors: (1) whether and how much the worker’s occupation is a separate calling or profession, and (2) what relationship it bears to the regular business of the employer. The more the worker’s occupation resembles the business of the employer, the more likely the worker is an employee.
In the present case, the evidence demonstrated that during the years in question, Appellant employed truck drivers on its payroll to transport mobile homes from the seller’s location to the buyer’s land. The employee drivers were subject to workers’ compensation coverage, and premiums were paid for them. Appellant also retained a number of truck drivers by contract to transport mobile homes using their own trucks. Appellant asserted that these contract driv ers were independent contractors for whom workers’ compensation coverage was not required.
The trial court concluded that the drivers were employees based, in large part, on the degree of control that Appellant retained over them. Specifically, the trial court found that under the contracts, the drivers agreed to use their trucks exclusively in the business and service of Appellant, and that they could not use their trucks for a “trip lease” without Appellant’s express consent. A “trip lease” is when the driver has the opportunity to haul or deliver for someone else on his trip back to his place of origin. Meanwhile, Appellant had the right to sublease the drivers’ trucks. The trial court also found that: (1) the drivers had to paint their trucks in accordance with Appellant’s specifications and were required to affix Appellant’s insignia or other marks of identification on the trucks; (2) the trucks could only be driven by persons certified by Appellant as acceptable; (3) the drivers were authorized, as agents, to collect the monies due to Appellant for the shipping charges; (4) compensation was contingent upon the drivers providing bills of lading, log books, all tickets, permits, and copies of flagging tickets; (5) the drivers were required to pay all fuel use taxes, but Appellant would receive all credits and refunds on such taxes; and (6) the drivers were responsible for up to $350.00 for damage to the cargo.
Appellant argues that the trial court erred in relying on these contract provisions as bearing on the issue of the right to control. It claims that its contracts provided no more control than that mandated by the Interstate Commerce Commission’s (ICC) regulations. Appellant particularly relies on 49 C.F.R. § 1057.12(c)(1) (1992), which provides in part that equipment leases “shall provide that the authorized carrier lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease.” Appellant asserts that the ICC has never viewed this exclusive-use requirement as having any bearing on the relationship of the parties. See section 1057.12(c)(4). Appellant relies on this court’s holding in Julian Martin, Inc. v. Indiana Refrig. Lines, Inc., 262 Ark. 671, 560 S.W.2d 228 (1978). While we agree that compliance with the ICC’s regulations does not, as a matter of law, determine the relationship between the parties, we believe that Appellant’s reliance on Julian Martin is misplaced.
There, a truck driver was injured while driving a truck owned by White County Ready Mix, leased to Julian Martin, and then subleased for one trip to Indiana Refrigeration Lines. The dispute was between the lessee and the sub-lessee as to which one was the driver’s employer and thus responsible for compensation of his injuries. The lessee argued that the sub-lessee was responsible, in part, because the sub-lessee controlled the driver’s activities under the ICC’s regulations. This court disagreed: “Control of the leased equipment does not operate as such complete control of the driver, as to make the driver the employee of the lessee as a matter oJlaw[.]” Id. at 678, 560 S.W.2d at 231 (emphasis added). The issue of the right to control the method and manner of the work is not a question of law to be determined by ICC regulations. Rather, when there is a “lease of fully operated equipment for the transportation of cargo on the public highways,” the question of the driver’s status is one of fact. Id., 560 S.W.2d at 231-32. Thus, the existence of ICC regulations governing control of the equipment under the lease does not necessarily mandate a finding that the operator is an employee or an independent contractor. The question remains one of fact dependent upon the particular circumstances of each case.
Here, in addition to the facts set out above, the evidence showed that the contract drivers performed the same work as the employee drivers, with the only difference being that the employee drivers were given specific times and dates for pick up and delivery, and they did not have the option of declining particular moves. The contracts were initially for a term of thirty days, but were automatically renewed and continued thereafter unless terminated. Either party could terminate the contract by giving at least ten days’ written notice. The trial court found significant the length of time that these drivers worked for Appellant, with the majority having done so for at least two years. The trial court also found significant the factor that the drivers were not engaged in a distinct occupation or business, as the greater weight of the evidence showed that these drivers did not engage in work other than hauling mobile homes for Appellant. The trial court also found that the work performed by the contract drivers was such an integral part of Appellant’s business, that it could not operate without the contract drivers. The trial court relied on the fact that Appellant is in the business of transporting mobile homes, and that the truck drivers are in the identical business. Thus, the trial court found that the truck drivers’ work bears a significant relationship to Appellant’s business under the “relative nature of the work” test.
Furthermore, contrary to Appellant’s argument, the contracts here exceeded the amount of control specified in the ICC’s regulations. For example, the exclusive-use provision found in section 1057.12(c)(1) does not specifically prohibit use of the trucks by the lessor-owners for trip leases. Indeed, the reason offered by Appellant in support of this provision was not that it was mandated by the regulations, but that Appellant likes to know where the drivers are in case they are needed for another move. Similarly, there does not appear to be any regulation requiring the lessor-owners to act as trustees or agents of the carrier for the purpose of collecting monies due for shipping charges. Thus, viewing the foregoing facts in a light most favorable to Appellee, we cannot say that the trial court was clearly erroneous in finding that the contract drivers were employees.
We find additional support for our holding in the trial court’s determination that Appellant should be estopped from' denying payment of the additional premiums regardless of the drivers’ status. The evidence revealed that workers’ compensation claims were made by five of the contract drivers during the period in question, and those claims were paid by Appellee. In one of those five cases, the trial court found that the claim was signed by Appellant’s vice-president, Winston Chandler, and that Chandler never raised the issue of the driver’s employment status until approximately two years after the claim was made and compensation had been paid. On another claim, the trial court found that Chandler had informed Appellee’s claims adjuster that the company had withheld funds from the claimant’s pay to pay for workers’ compensation insurance. Furthermore, the trial court found that all of the drivers were treated in the same way, as it related to the assignment of jobs, the rate of pay, and the method and manner in which they performed each job. Accordingly, the trial court found that Appellant intended and elected to have the contract drivers, as a group, covered by its policy. Again, we cannot say that the trial court’s ruling was clearly erroneous, and we affirm the judgment.
We do not reduce the judgment, as Appellant requests, by the premium amounts for those drivers working in Alabama, Georgia, Tennessee, and Virginia. It is not apparent that Appellant made this argument below. To the contrary, the abstract reflects that Appellant informed the trial court that it was not controverting the calculations of the premiums and that the only issue was the coverage itself. Accordingly, the issue is not preserved for appeal. See Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999). Likewise, we do not address the additional points raised by the Amicus Curiae. The Amicus Curiae must take the case as it finds it and cannot raise issues not raised by the parties or introduce new issues at the appellate level. See Ferguson v. Brick, 279 Ark. 168, 649 S.W.2d 397 (1983) (per curiam); Mears v. Little Rock School Dist., 268 Ark. 30, 593 S.W.2d 42 (1980); Equilease Corp. v. United States Fidelity & Guar. Co., 262 Ark. 689, 565 S.W.2d 125 (1978). These additional issues were not raised by either party, so they are not preserved for this court’s review.
Lastly, because we affirm the trial court’s determination that the drivers were employees, it is not necessary to review the alternative finding that the drivers were subcontractors. We do find it necessary, however, to point out that even if the drivers were subcontractors, Appellant, as the prime contractor, would not be responsible for payment of workers’ compensation premiums for the subcontractors themselves, but only for those employees of the subcontractors, if any, for whom no compensation coverage was provided. See Ark. Code Ann. § ll-9-402(a) (Repl. 1996); Hollingsworth & Rockwood Ins. Co. v. Evans, 255 Ark. 387, 500 S.W.2d 382 (1973).
Affirmed.
This regulation is now codified as 49 C.F.R. § 376.12(c)(1) (1999). | [
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RAY THORNTON, Justice.
The State brings this appeal tpetition ice. of the decision of the Arkansas Court of Appeals in Montague v. State, 68 Ark. App. 145, 5 S.W.3d 101 (1999), in which the conviction and sentence of appellee Jimmie Don Montague for driving while intoxicated was set aside on the grounds that his conviction for both negligent homicide and DWI violated the double-jeopardy provisions of the Arkansas and United States Constitutions. The court of appeals reached this issue notwithstanding Montague’s failure to raise this argument to the trial court below, and the State sought review of this decision on the grounds that it conflicts with our prior decisions that double-jeopardy claims are not preserved for appeal if they are not raised below. We granted appellant’s petition to review. When we review a decision of the Court of Appeals we review the case as though it had been originally filed in this court. Maloy v. Stuttgart Memorial Hosp., 316 Ark. 447, 8723 S.W.2d 401 (1994), Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979). We agree with the State’s contention and affirm the conviction and sentence below
On the night of July 17, 1997, Montague went to a bar in Fort Smith, where he consumed a number of beers. He was returning home at 5:35 a.m. when he fell asleep at the wheel and crossed the center line, striking Nick Elliott’s car head-on. Elliott was killed. Police investigators took the defendant to the hospital, where an hour after the accident his blood-alcohol level was .12%. manslaughter and DWI, and a jury convicted him of the lesser-A breath test taken an hour following that test showed a blood-alcohol content of .10%. The State charged the defendant with included offense of negligent homicide, as well as the DWI. The jury set the sentence for DWI at twelve months in jail and assessed a $1000 fine and court costs. The jury set the sentence for negligent homicide at six years but recommended that the sentence be suspended, and also assessed a $5000 fine and court costs for that offense. The trial judge sentenced him accordingly and ordered that the sentences run consecutively. It is uncontested that the defendant did not challenge his sentence on the grounds of double jeopardy below.
The defendant appealed his sentence to the court of appeals on the grounds that in Tallant v. State, 42 Ark. App. 150, 856 S.W.2d 24 (1993), the court had held that a driver could not be convicted of both negligent homicide and DWI because the commission of one offense could not be established without the proving of the other. The State responded that the error was not preserved for appellate review because Montague had not raised the issue to the trial court. As pointed out by the State, we note that the defendant’s counsel had specifically sought to dissuade the jury from recommending a term of incarceration in the Department of Correction for negli gent homicide by arguing for a term in the county jail for driving while intoxicated.
Notwithstanding the defendant’s failure to argue a violation of the double-jeopardy provision, the court of appeals reached the merits of this case, basing its opinion upon our decision in Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992), where we held that allegations of void or illegal sentences would be treated similarly to problems of subject-matter jurisdiction: by reviewing such allegations whether or not an objection was made in the trial court. Id. Treating the sentence as void or illegal on double-jeopardy grounds fails to consider a series of our cases in which we have declined to address on direct appeal an appellant’s arguments that a conviction violated double jeopardy where no objection was made to the trial court to set aside the conviction nor any argument made raising the issue of double jeopardy. Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982); Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993); Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994). Had the issue been raised to the trial court, the court could have considered the question whether the defendant’s conduct supported charges for two different offenses, and whether conviction of both crimes might be appropriate without violating the prohibition against double jeopardy. When the jury returned verdicts convicting Montague of both a lesser-included offense of the manslaughter charge, namely negligent homicide, and DWI, the defense counsel did not challenge the sentences, but argued for imposition of jailing on the DWI sentence.
The burden of obtaining a ruling is upon the movant, and unresolved questions and objections are waived and may not be relied upon on appeal. Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995). The circumstances of this case are similar to those in Leavy, supra, and Robinson, supra, where defense counsel sought leniency in the sentence, not to prevent any conviction or sentence at all for one of the offenses charged. Here, there was no motion to set aside the convictions nor any argument relating to double jeopardy. A timely and appropriate objection must be made to preserve an objection on appeal. We have not adopted the doctrine of plain error and we are not persuaded to do so in this case. Robinson v. State, 278 Ark. 516, 648 S.W.2d 444 (1983)(citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980)). The State argues that Montague is confusing the requirements of a direct appeal with those of a proceeding under Rule 37 of the Arkansas Rules of Criminal Procedure. See e.g. Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996); Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989); Watson v. State, 295 Ark. 616, 752 S.W.2d 240 (1988). Under Rule 37 proceedings, we have made an exception for some issues not raised below and preserved on appeal where the error is so fundamental as to render the judgment of conviction void and subject to collateral attack. Collins, supra. But cf. Rowbottom v. State, 341 Ark. 33, S.W.3d (April 13, 2000) (intention of the legislature to create two separate offenses arising from the same conduct can overcome an appellant’s assertion of violation of double-jeopardy provision in Rule 37 proceeding). We make no determination in this case whether a Rule 37 proceeding might be appropriate, but conclude that when the argument of double jeopardy was not raised below, we cannot consider that argument on direct appeal. Accordingly, we affirm the defendant’s conviction and sentence.
Affirmed.
Defense counsel’s argument to the jury at sentencing was:
Here’s another alternative. He can be sentenced to the county jail for up to a year. And let me tell you they don’t give you good time over there. You go for a year you serve for a year. So if you want to give my client time to serve let me suggest I think it would be a much safer environment in the county jail. | [
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Robert L. Brown, Justice.
Appellant, Wal-Mart Stores, Inc., appeals from an order dismissing its First Amended Complaint filed against appellee, Thomas Coughlin. Wal-Mart raises issues on appeal relating to (1) Coughlin’s duty as a fiduciary to disclose material facts before entering into a self-dealing contract, and (2) his fraudulent inducement of Wal-Mart to enter into the Retirement Agreement, which incorporated a Mutual General Release (Release) between the parties, by his failure to disclose material facts and by his affirmative misrepresentations. We agree with Wal-Mart that it sufficiently pled Coughlin’s duty, as a fiduciary, to disclose material facts as well as fraudulent inducement by Coughlin’s affirma tive misrepresentations so as to withstand a motion to dismiss under Rule 12(b)(6) of the Arkansas Rules of Civil Procedure. We further agree that the circuit court made a premature finding of fact in its order of dismissal relating to Coughlin’s fraudulent purpose in connection with the Retirement Agreement and Release. We reverse and remand for further proceedings.
The facts are taken from Wal-Mart’s First Amended Complaint. In 1978, Coughlin began working for Wal-Mart as the Director for Loss Prevention, where he had the responsibility to investigate theft, fraud, and abuse by Wal-Mart associates, suppliers, and others who may have committed these offenses against the company. From 1983 until 2003, Coughlin held various executive positions within Wal-Mart and the company’s Sam’s Club division. He also eventually became a member of the Wal-Mart Board of Directors. During this time, he retained responsibility for management of the Loss Prevention Department. In 2003, Coughlin assumed the position of Executive Vice President and Vice Chairman of the Board of Wal-Mart Stores, Inc. (USA), and later became Vice Chairman of Wal-Mart’s Board of Directors.
In 2004, Wal-Mart announced that Coughlin would retire in 2005. On January 22, 2005, Wal-Mart and Coughlin entered into a Retirement Agreement, which included the Release between the parties, under which Coughlin was to receive millions of dollars in benefits over the ensuing years. In February 2005, after the execution of the agreement, Wal-Mart learned of Coughlin’s fraudulent conduct after a store associate alerted Wal-Mart’s internal investigations group that Coughlin had used a Wal-Mart gift card, issued internally for associate relations, for personal purchases. Through the internal investigation that followed, WalMart learned that Coughlin had abused his position of authority and conspired with subordinates to misappropriate hundreds of thousands of dollars in cash and property through various fraudulent schemes. Three months after Wal-Mart signed the Retirement Agreement and Release with Coughlin, Wal-Mart suspended Coughlin’s retirement benefits.
On July 27, 2005, Wal-Mart filed suit against Coughlin to void the Retirement Agreement and Release and alleged ten claims for relief: fraud, fraudulent concealment, breach of fiduciary duty, conversion, accounting, restitution based on rescission of the Retirement Agreement, declaratory judgment that Coughlin is not entitled to retirement benefits under the Retirement Agreement, restitution based on unjust enrichment, judgment for money had and received by Coughlin, and conspiracy. Coughlin moved to dismiss the complaint for failure to state a claim upon which relief could be granted under Rule 12 (b) (6) of the Arkansas Rules of Civil Procedure. On November 1, 2005, the circuit court dismissed Wal-Mart’s complaint with respect to all allegations occurring prior to the execution of the Retirement Agreement and Release. The circuit court ruled in its order that Wal-Mart had failed to plead specifically that it was fraudulently induced to sign the Retirement Agreement and Release. The court further stated that whether Coughlin had a duty to disclose material facts to Wal-Mart before signing the Retirement Agreement and Release was an issue of first impression in Arkansas and that it would not reach such a conclusion, particularly in light of the Release. In its order, the circuit court said: “the Arkansas trial court is the wrong venue in which to make new case law.”
On November 4, 2005, Wal-Mart filed its First Amended Complaint and added fraudulent inducement of the Retirement Agreement and Release as a new claim for relief. Wal-Mart alleged in that new claim that Coughlin had made repeated misrepresentations to Wal-Mart about his conduct by his execution of Certifications and Disclosures pursuant to SEC regulations and WalMart’s internal policies, which attested to no wrongdoing. Walmart asserted that these misrepresentations induced it to enter into the Retirement Agreement and Release. On January 23, 2006, the circuit court entered its final order, which found that “Wal-Mart failed to specifically plead a nex[u]s between Coughlin’s alleged fraud and the signing of the Release” and dismissed the First Amended Complaint.
I. Fiduciary’s Duty to Disclose
Wal-Mart concedes that the issue of a fiduciary’s duty to disclose improper conduct to the corporation has never been decided in Arkansas. It urges, nonetheless, that this court should bring Arkansas in line with the view held by the vast majority of other state and federal courts. It asserts that this court has long held that corporate officers and directors owe a fiduciary duty to their corporations, but it contends that we now should take the additional step and hold that this duty obligates officers and directors to disclose material facts of past fraud to the corporation before entering into a self-dealing contract. This fiduciary duty, according to Wal-Mart, applies to directors and officers when entering into agreements with the corporation, and it is those directors and officers who have the burden of proving good faith and fairness with respect to the agreement with the corporation. Wal-Mart maintains that Coughlin breached his fiduciary duty of disclosure by concealing his prior theft from Wal-Mart when negotiating and signing his Retirement Agreement and Release.
Coughlin, for his part, does not dispute that he breached his fiduciary duty by stealing from Wal-Mart but rather insists that the Release in the Retirement Agreement bars any “known or unknown” claim Wal-Mart has against him. He contends that Arkansas case law does not support Wal-Mart’s position that fiduciaries have a duty to disclose past fraud to corporations before entering into an agreement with those corporations. Rather, he argues that this state strongly supports freedom of contract between two sophisticated parties and that the general principles of contract law must apply to this case. He contends that Wal-Mart, which insisted that he sign the Release as part of the Retirement Agreement, was capable of excluding claims arising from a breach of the fiduciary’s duty to disclose but chose not to do so. He further contends, and the circuit court agreed, that Wal-Mart’s position regarding a fiduciary’s duty to disclose renders the Release clause moot. Thus, he concludes, Wal-Mart should now be bound by the clear terms of the Release.
This court has stated its standard of review for Rule 12(b)(6) dismissals to be as follows:
We review a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in plaintiff s favor. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entide the pleader to relief.
Biedenharn v. Thicksten, 361 Ark. 438, 441, 206 S.W.3d 837, 840 (2005) (internal citations omitted).
With those principles in mind, we turn to the merits of this issue. Arkansas jurisprudence “imposes a high standard of conduct upon an officer or director of a corporation.” Raines v. Toney, 228 Ark. 1170, 1178, 313 S.W.2d 802, 808 (1958). This court has held that an officer or director of a corporation owes a fiduciary duty to the corporation and its shareholders. See Raines, supra. The high standard of conduct owed by an officer to his corporation has also been codified in the Arkansas Business Corporation Act:
(a) An officer with discretionary authority shall discharge his duties under that authority:
(1) in good faith;
(2) with the care an ordinarily prudent person in a like position would exercise under similar circumstances; and
(3) in a manner he reasonably believes to be in the best interests of the corporation.
Ark. Code Ann. § 4-27-842(a) (Repl. 2001); see also Ark. Code Ann. § 4-27-830(a) (Repl. 2001) (establishing an identical standard of conduct for directors).
This court imposes an even greater duty on a person who serves as both an officer and a director of a corporation. See Raines, supra. We have said that one who owes a fiduciary duty to a corporation may be subject to liability to the corporation for any harm resulting from a breach of his or her fiduciary duty. See Long v. Lampton, 324 Ark. 511, 922 S.W.2d 692 (1996). We have further said that “a director is a ‘fiduciary’ as to any agreements between the corporation and himself individually.” Hall v. Straha, 303 Ark. 673, 681, 800 S.W.2d 396, 401 (1990) (Hall I). The burden of proving that the transaction between the director and the corporation is made in good faith and is fair to the corporation lies with the director. See id. Finally, this court has said that “[i]n the search for inherent fairness and good faith to a corporation and shareholders, conduct of directors must be subjected to ‘rigorous scrutiny’ when conflicting self-interest is shown.” Hall v. Straha, 314 Ark. 71, 79, 858 S.W.2d 672, 676 (1993) (Hall II) (citing Pepper v. Litton, 308 U.S. 295 (1939).
The Release included in the Retirement Agreement provides:
The Associate and Wal-Mart hereby release, acquit and forever discharge each other and (to the extent applicable) their respective directors, officers, shareholders, employees, successors and assigns, of and from any and all liability for claims, causes of actions, demands, damages, attorneys fees, expenses, compensation, or other costs or losses of any nature whatsoever, whether known or unknown, which the Associate or Wal-Mart may have arising out of or in any way related to the Associate’s employment with
Wal-Mart, including, but not limited to, claims for wages, back pay, front pay, promotion or reinstatement opportunities. This release does not, however, preclude the Associate or Wal-Mart from pursuing a claim for breach of the Agreement or the Non-Compete Agreement.
Both parties are correct that the Release in this case is a type of contract between the parties and is interpreted pursuant to the rules of contract interpretation. See Green v. Owens, 254 Ark. 574, 495 S.W.2d 166 (1973). Our standard of review for contract interpretation has been stated often:
The first rule of interpretation of a contract is to give to the language employed the meaning that the parties intended. In construing any contract, we must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the parties themselves viewed it. It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement.
Alexander v. McEwen, 367 Ark. 241, 244, 239 S.W.3d 519, 522 (2006) (internal citations omitted).
We address then the question of a fiduciary’s failure to disclose fraud perpetrated against the corporation and the impact it has on the validity of a subsequent Retirement Agreement and Release. As an initial matter, we conclude that the language of the Release is clear and unambiguous. Despite that clear language, a significant majority of other jurisdictions, both state and federal, have held that a fiduciary owes a duty of full disclosure when entering into a transaction with the fiduciary’s corporation and that the fiduciary’s failure to disclose material facts relating to a mutual release of claims between the parties is sufficient to set aside the release. See, e.g., In re Mi-Lor Corp., 348 F.3d 294, 303 (1st Cir. 2003) (fiduciaries owe a duty of full disclosure of material facts in connection with a self-dealing transaction, and “in the case of a self-dealing release, information about the conduct of the potential recipients of the release is necessary for deciding whether to grant the release.”); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1481 (6th Cir. 1989) (holding that federal law applies to the validity of releases and that federal law at a minimum requires the standards of the Restatement of Contracts 2d § 173, which states “[i]f a fiduciary makes a contract with his beneficiary relating to matters within the scope of the fiduciary relation, the contract is voidable by the beneficiary unless ... all parties beneficially interested manifest assent with full understanding of their legal rights and of all relevant facts that the fiduciary knows or should know”); Shane v. Shane, 891 F.2d 976, 986 (1st Cir. 1989) (a release will not bar subsequent claims if the release was obtained by fraud or misrepresentation, and “where a release is obtained without full disclosure of the relevant facts by one who is under a duty to reveal them, it can be set aside”); Cwikla v. Sheir, 801 N.E.2d 1103, 1112 (Ill. App. 2003) (“Parties in a fiduciary relationship owe one another a duty of full disclosure of material facts when . . . obtaining a release .... [A] severance agreement arising out of a fiduciary relationship is voidable if one party withheld facts that were material to the agreement.... A withheld fact is material if plaintiff would have acted differently had he been aware of the withheld fact.”); Blue Chip Emerald, LLC v. Allied Partners, Inc., 750 N.Y.S.2d 291 (N.Y. App. Div. 2002) (a release is voidable if a fiduciary, in furtherance of his individual interests, fails to make full disclosure of all material facts that could reasonably bear on the corporation’s decision to grant the release); Old Harbor Native Corp. v. Afognak Joint Venture, 30 P.3d 101, 105 (Ala. 2001) (a release is “susceptible to attack under the legal theories of mistake, fraud, and misrepresentation” and a release may be ineffective if a fiduciary breaches his affirmative duty of full disclosure of material facts); Soderquist v. Kramer, 595 So.2d 825, 830 (La. App. 1992) (stating that “[t]he duty imposed on a fiduciary embraces the obligation to render a full and fair disclosure to the beneficiary of all facts which materially affect his rights and interest” and a material question of fact existed as to whether an attorney disclosed to his client the extent of a conflict of interest when obtaining a release as the release would not bar a claim for legal malpractice if full disclosure was not made); Pacelli Bros. Transp., Inc. v. Pacelli, 456 A.2d 325, 329 (Conn. 1983) (a “general release cannot shield an officer or director who has failed in his fiduciary duty to disclose information relevant to a transaction with those whose confidence he has abused”); State ex rel. Hayes Oyster Co. v. Keypoint Oyster Co., 391 P.2d 979, 986 (Wash. 1964) (corporation’s release of former president was not binding because the president had failed to make full disclosure of material facts, and “[a] corporation cannot ratify the breach of fiduciary duties unless full and complete disclosure of all facts and circumstances is made by the fiduciary and an intentional relinquishment by the corporation of its rights”); Norris v. Cohen, 27 N.W.2d 277, 281 (Minn. 1947) (“[A] general release does not extend to claims of which one party thereto was wrongfully kept in ignorance by the other” and “the wrongful concealment of facts by one party to a release affords sufficient ground to the other for setting it aside, particularly where the information concealed is not equally within the knowledge of both parties.”).
The authority adduced by Coughlin, while supportive of his position in certain respects, is distinguishable on the facts. See Fitzwater v. Lambert & Barr, Inc., 539 F.Supp. 282 (W.D. Ark. 1982) (a duty owed by a fiduciary not involved); K3 Equipment Corp. v. Kintner, 233 A.D.2d 556 (N.Y. App. Div. 1996) (some facts suggested that plaintiff corporation should have been aware of fraud by the fiduciary at time release executed); Tolton v. Mac Tools, Inc., 453 S.E.2d 563 (N.C. App. 1995) (fiduciary duty not involved, and no fraud alleged in procurement of release); Ristau v. Wescold, Inc, 868 P.2d 1331 (Or. 1994) (plaintiff conceded that release was not fraudulently induced).
We hold, first, that Wal-Mart sufficiently stated a claim for relief in its First Amended Complaint that Coughlin had a duty as a fiduciary to disclose material facts, including fraud and misappropriation of goods. We further hold that Wal-Mart has sufficiently stated a claim that it would not have entered the Retirement Agreement and Release had it known of Coughlin’s misconduct.
We are persuaded, in addition, that the majority view is correct, which is that the failure of a fiduciary to disclose material facts of his fraudulent conduct to his corporation prior to entering into a self-dealing contract with that corporation will void that contract and that material facts are those facts that could cause a party to act differently had the party known of those facts. We emphasize, however, that this duty of a fiduciary to disclose is embraced within the obligation of a fiduciary to act towards his corporation in good faith, which has long been the law in Arkansas. Stated differently, we are not adopting a new principle of fiduciary law by our holding today but simply giving voice to an obvious element of the fiduciary’s duty of good faith. We reverse the order of dismissal on this point and remand the matter for further proceedings.
In holding as we do, we have considered Coughlin’s arguments that Wal-Mart, which drafted the Release, could have used more precise language in its Release regarding a fiduciary’s duty and that, in any event, the Release should be upheld, as a matter of law, and construed against Wal-Mart as the drafter. On the latter point, however, we have already held in this opinion that the language of the Release is clear and unambiguous. We, furthermore, have considered Coughlin’s contention that Arkansas has strong jurisprudence favoring freedom of contract. Nevertheless, we conclude that it is for a jury to decide whether Coughlin breached his fiduciary duty to disclose material facts to Wal-Mart and whether the parties intended the Release to bar claims of fraudulent inducement related to that duty to disclose.
II. Fraudulent Inducement
The next issue raised by Wal-Mart is a variation of the same theme. Wal-Mart contends that the circuit court erred in giving effect to the terms of the Release before resolving the question of whether Coughlin, by his failure to disclose material facts and his affirmative misrepresentations, fraudulently induced Wal-Mart into signing the contract. Wal-Mart claims that circuit courts should not give effect to the terms of a contract if there is a factual or legal question regarding the contract’s validity. It urges that a contract, which is the product of fraudulent inducement, is void and that the terms of a release in that contract cannot bar a claim by one of the parties who was fraudulently induced into executing the contract. Wal-Mart reiterates, as a further proposition, that the question of whether fraud induced the execution of the Retirement Agreement and Release is a fact question for a jury to decide and that, moreover, the circuit court erred in deciding this issue on a Rule 12(b)(6) or Rule 9(b) motion to dismiss. On this point, Wal-Mart underscores the fact that Coughlin executed annual Certifications and Disclosures for the corporation for eight years, confirming there was no wrongdoing on his part.
Coughlin’s response centers again on the fact that Wal-Mart released all “known and unknown” claims against him, which, he argues, includes any affirmative misrepresentations. He adds that the circuit court correctly found that Wal-Mart failed to plead a specific nexus between Coughlin’s alleged fraud in executing those documents and the signing of the Retirement Agreement and Release.
This court has held that a misrepresentation of facts amounting to fraud can render a release of claims ineffective and, in addition, present a question of fact for the jury. See Malakul v. Altech Arkansas, Inc., 298 Ark. 246, 766 S.W.2d 433 (1989); Creswell v. Keith, 233 Ark. 407, 344 S.W.2d 854 (1961). Furthermore, we have said that releases contained in contracts do not relieve a party of liability for fraud if that party obtained the contract by fraud. See Allen v. Overturf, 234 Ark. 612, 353 S.W.2d 343 (1962).
In order to prove fraud, a plaintiff must prove five elements under Arkansas law: (1) that the defendant made a false representation of material fact; (2) that the defendant knew that the representation was false or that there was insufficient evidence upon which to make the representation; (3) that the defendant intended to induce action or inaction by the plaintiff in reliance upon the representation; (4) that the plaintiff justifiably relied on the representation; and (5) that the plaintiff suffered damage as a result of the false representation. See Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007).
This court has further said regarding fraudulent inducement:
Fraud cannot be an agreement. It is an imposture practiced by one upon another. It may be used as an inducement to enter into an agreement. Defendant does not claim that he entered into an agreement that affects the validity of the contract, but that he was induced by false representations to enter into the contract. If that be true the validity of the contract is not assailed, but its very existence is destroyed. To constitute fraud by false representation there must be a representation of alleged existing fact; that representation must be false in fact; it must be made with intent to deceive, and the person to whom it is made must believe it.
Allen, 234 Ark. at 615-16, 353 S.W.2d at 345 (quoting Scarsdale Pub. Co. v. Carter, 116 N.Y.S. 731, 735 (1909)).
The circuit court ruled in its final order that Wal-Mart failed to plead fraudulent inducement with particularity, as required by Rule 9(b) of the Arkansas Rules of Civil Procedure. We disagree. Wal-Mart clearly pled the following facts supporting fraud in its First Amended Complaint: (1) Coughlin made false representations in the Certifications and Disclosures he submitted pursuant to the Sarbanes-Oxley Act and Wal-Mart’s internal control policy, when he stated that neither he nor the members of his family had received personal benefits from Wal-Mart and that he was not aware of any officer who had committed acts of fraud or violated Wal-Mart’s ethics policy; (2) Coughlin knew that the representations made within the Certifications and Disclosures were false as Coughlin had stolen hundreds of thousands of dollars in money and property from Wal-Mart; (3) Coughlin intended to induce Wal-Mart to act in reliance on these misrepresentations in making decisions regarding Coughlin’s executive responsibilities and his compensation and benefits as Coughlin continually assured WalMart that he was complying with his fiduciary duties as an officer and director; (4) Wal-Mart justifiably relied on these misrepresentations in the Certificates and Disclosures in making decisions to promote Coughlin both as an officer and director and in making the decision to offer Coughlin a lucrative Retirement Agreement; and (5) Wal-Mart suffered damages as a result of the misrepresentations as Wal-Mart would not have entered into the Retirement Agreement and Release except for Coughlin’s misrepresentations. Wal-Mart further pled that Coughlin’s representations in the Certifications and Disclosures were a substantial factor in its decision to sign a Retirement Agreement and Release.
Because Wal-Mart has pled a claim for fraudulent inducement of the Retirement Agreement and Release with particularity, we hold that the circuit court erred in dismissing Wal-Mart’s fraudulent-inducement claims on the grounds that it was insufficiently pled under either Rule 12(b)(6) or Rule 9(b).
We turn then to the issue of whether the Release bars Wal-Mart’s claim that the Retirement Agreement and Release were fraudulently induced by Coughlin’s affirmative misrepresentations. Wal-Mart contends that the circuit court erred in finding that the use of the words “known or unknown” bars its claim for fraudulent inducement of the Retirement Agreement and Release. It asserts that the use of “unknown” does not foreclose the factual inquiry of whether the Release itself was the product of fraud. Coughlin counters that the circuit court found that there was no fraud perpetrated by him specifically for the purpose of procuring the Release. He emphasizes, once more, that Wal-Mart made no inquiry into his undisclosed wrongdoings and that he made no misrepresentation about his past behavior for purposes of obtaining the Retirement Agreement and Release. He echoes the circuit court in arguing that in order to void a contract based on fraud, there must be a specific link or nexus, between the fraud committed and the circumstances surrounding the execution of the contract.
This leads to the core question of what intent is necessary to void the Retirement Agreement and Release. Is an intent to mislead perpetrated over multiple years in documents filed by Coughlin with Wal-Mart and in accordance with SEC Regulations sufficient? Or must the intent to mislead be specifically directed at the Retirement Agreement and Release? Or are the two irrevocably intertwined?
Two Arkansas cases and a decision from the Eighth Circuit Court of Appeals are instructive on this issue. In Wilson v. Southwest Casualty Insurance Co., 228 Ark. 59, 305 S.W.2d 677 (1957), this court held that a release, which purported to bar all claims, “known or unknown,” did not bar a claim that the release was executed because of fraudulent misrepresentation. This court observed in Wilson that the issue of fraud in the procurement of a release was properly a question of fact for the jury. Id. Similarly, in Barry v. Barry, 78 F.3d 375 (8th Cir. 1996), the Eighth Circuit Court of Appeals distinguished between releasing mature fraud claims of which the plaintiff was cognizant and releasing a claim of fraud that induced the plaintiff to sign a release. The Eighth Circuit explained:
[a]lthough the later discovery of additional fraud does not invalidate the release of a mature fraud claim, see Bellefonte Re Ins. Co. v. Argonaut Ins. Co., 757 F.2d 523, 527 (2d Cir.1985), the same principle does not apply when a plaintiff who justifiably relies on fraudulent information is induced to sign a release for fraud claims that she did not know existed.
Barry, 78 F.3d at 381.
Moreover, in Malakul, supra, this court held that misrepresentations made throughout the course of an overarching, fraudulent scheme were sufficient to induce the plaintiffs into signing a release of claims. In that case, the defendants misrepresented to the plaintiffs that they had invented a low pressure distillation system and discovered a way to produce alcohol from waste, thus reducing this country’s dependence on foreign oil. The plaintiffs and defendants signed a partnership agreement and entered into a joint venture for manufacturing this invention, and the plaintiffs invested large sums of money into the venture. The defendants failed to manufacture the invention properly and, instead, deposited the money received from the plaintiffs into their own personal bank account. The plaintiffs later filed suit against the defendants for fraudulent inducement of the partnership agreement. The defendants argued that a release of claims between the parties barred the lawsuit.
This court rejected the defendant’s release argument and said:
[mjisrepresentations amounting to fraud may be shown to set aside a release. Creswell v. Keith, 233 Ark. 407, 344 S.W.2d 854 (1961). It has also been held plaintiffs are entitled to assert the fraud they claim if the entire transaction fatally infects the release upon which the defendants rely. Schine v. Schine, 254 F.Supp. 986 (S.D.N.Y. 1966); see also Fitzwater v. Lambert & Barr, Inc., 539 F.Supp. 282 (W.D. Ark. 1982). Here, [the plaintiff] testified that when he signed the release, he still believed [the defendant’s] representations that he had been putting his share of the money into the venture, that the equipment was free from debt, and that the plant which had been constmcted was a commercial production facility. In short, these misrepresentations, and others, typified the entire transaction or venture which also led to [the plaintiff] signing the release now in issue. Thus, the evidence supports the view that the release was fatally infected by the [the defendant’s] overall fraudulent scheme, and we believe the chancellor was correct in deciding the release was not a valid settlement of the claims of Altech and the [plaintiffs].
Malakul, 298 Ark. at 251-52, 766 S.W.2d at 436-37.
To repeat in part, Wal-Mart alleges in its First Amended Complaint that the misrepresentations contained in the Certifications and Disclosures induced Wal-Mart to believe that Coughlin was complying with his fiduciary duties, and this was a substantial factor in Wal-Mart’s decision to execute the Retirement Agreement and Release. Wal-Mart continues that even if the misrepresentations in the Certifications and Disclosures were not made with the specific intent to induce Wal-Mart to sign the Release, they were part of an overall fraudulent scheme that fatally infected the execution of the Retirement Agreement and Release. Coughlin’s principal contention is that the circuit court correctly ruled that the Certifications and Disclosures were made pursuant to SEC Regulations and internal controls and not with the specific intent of fraudulently inducing Wal-Mart to sign the Retirement Agreement.
The circuit court made the following finding of fact in its final order:
Specifically, Wal-Mart fails to allege how, when, and to whom Coughlin made his Certifications and Disclosures to induce the Retirement Agreement and Release. We believe that these statements were made for a different purpose and lacked any connection to the Retirement Agreement and Release. The Certifications were required by the Sarbanes-Oxley Act and SEC regulations while the Disclosures were required by Wal-Mart’s internal corporate controls. Neither could have been made to induce the Retirement Agreement and Release that was signed at a later date.
The intent of Coughlin to fraudulently induce the signing of the Retirement Agreement and Release by executing the Certifications and Disclosures and the justifiable reliance by Wal-Mart on those documents are critical issues in this case and material issues of fact for the jury to decide. See Tyson Foods v. Davis, 347 Ark. 566, 66 S.W.3d 568 (2002); Creswell, supra. By ruling as it did, the circuit court invaded the province of the jury by determining what Coughlin’s intent was vis-a-vis the Retirement Agreement and Release.
We reverse the circuit court.
III. Conclusion
To summarize, we hold that Wal-Mart specifically pled that Coughlin breached his fiduciary duty to divulge material facts relating to his fraudulent conduct to Wal-Mart prior to executing the Retirement Agreement and Release, so as to withstand a Rule 12(b)(6) dismissal. We reverse the circuit court on this point and remand for further proceedings.
We further hold that fraudulent inducement, both with respect to the duty to disclose and affirmative misrepresentations, was pled with particularity by Wal-Mart in its First Amended Complaint and that a claim was stated. We hold, in addition, that Arkansas law is clear that a release induced by fraud is invalid. The circuit court erred in ruling, as a matter of law, that Coughlin by his affirmative misrepresentations had insufficient intent to fraudulently induce the Retirement Agreement and Release. The question of whether Coughlin, by his actions, exhibited the requisite intent to fraudulently induce the Retirement Agreement and Release is a question of fact for the jury. We reverse the circuit court on this finding as well and remand the case for further proceedings.
Reversed and remanded.
Special Justices Janet Moore and Linda Collier join in this opinion.
Corbin and Danielson, JJ., not participating.
Both parties cite, and the circuit court, in its initial order, relies upon E.I. DuPont De Nemours and Company v. Florida Evergreen Foliage, 744 A.2d 457 (Del. 1999). In that case, the Supreme Court of Delaware held that a release incorporated into a setdement agreement between a plaintiff and defendant in litigation did not bar the plaintiff s claim for fraud in the inducement of the setdement agreement and release. That case, however, did not involve a fiduciary relationship between the parties.
The duty to disclose is ruled upon in the circuit court’s initial order of dismissal entered on November 11,2005. The final order of dismissal dated January 23,2006, brings up all intermediate orders for purposes of appeal. See Ark. R. App. P. - Civ. 2(b) (2006). | [
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Per Curiam.
Appellant Brandon Dwayne Sanders, by and through his attorney, has filed a motion for rule on the clerk. His attorney, Justin B. Hurst, states in the motion that he admits responsibility for falling to timely file the record.
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or there is “good reason.” McDonald v. State, 356 Ark. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he or she has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Hurst has candidly admitted fault. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion granted. | [
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