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P. A. Hollingsworth, Justice.
The appellant was convicted by a jury of aggravated robbery and being a habitual offender, and received a sentence of sixty years imprisonment. This appeal is from those proceedings. The case is before us under Sup. Ct. R. 29 (1) (b).
On August 9, 1983, at approximately 7:00 PM, two employees of the Sears Store in Pine Bluff were leaving work when they heard the burglar alarm ringing. Upon reentering the store, they were confronted by a man wearing a mask who at gunpoint forced them to lie down on the floor. He tied one of the employees’ hands with tape and forced that employee to lie down in the freight elevator. The other employee was forced to take the man to the safe. Police officers responding to the burglar alarm arrived at the store and fired a shot at the masked man, who then broke through a plate glass window and fled from the store. He was apprehended across the street from Sears and identified as the appellant by both employees.
Ark. Stat. Ann. § 41-2102 (Supp. 1983) provides that a person commits aggravated robbery if with the purpose of committing a theft or resisting apprehension, he employs or threatens to employ physical force immediately upon another and he is armed with a deadly weapon, or represents by word or conduct that he is so armed. The appellant’s conduct fits the statutory definition in that he was in Sears for the purpose of committing theft and he held a gun on the employees, thereby threatening to employ physical force. The fact that the crime was not successful is of no consequence since we have held that nothing need be taken from the victim to sustain an aggravated robbery conviction. Sanders v. State, 274 Ark. 525, 626 S.W.2d 366 (1982). The facts present here are substantial evidence to support the charge.
The appellant’s second argument is that the evidence presented at trial does not support the severity of the sentence. We have previously stated that “except in capital cases, we do not review the severity of a sentence within the lawful maximum and not affected by error in the trial, that determination having been committed to the jury by the Constitution and statutes.” Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982) and Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982). Here the objection to the sentence is not based on an error committed in the trial, but rather is a plea for leniency because the appellant did not actually harm the two employees. The sentence is within the legal maximum set by the legislature.
The appellant next argues that the trial court erred in considering his past charge of burglary and kidnapping as two separate offenses for purposes of the habitual offender statute. After the jury returned a verdict of guilty, the State introduced certified copies of the judgments and commitments in three prior felony convictions: (1) A-27591, United States District Court, Northern District of Georgia (plea of guilty/bank robbery/August 4, 1972); (2) 8-12314, Clayton County Superior Court (plea of guilty/burglary/August 9, 1974); and (3) CR 78-352, Jefferson County Circuit Court (plea of guilty/aggravated robbery/July 13, 1979). Appellant objected to the introduction of the Clayton County conviction because, according to him, the federal robbery and state burglary charges arose out of the same incident.
We have reviewed the record and find it confusing as to whether the two charges arose out of the same incident. However, we need not decide that issue as there is no indication that appellant was prejudiced by the introduction of the convictions. Even assuming that the convictions in A-27591 and 8-12314 should have been considered as one prior conviction, there was clear evidence of two prior felony convictions before the court. Thus, the enhanced punishment was authorized under Ark. Stat. Ann. § 41-1001 (1) (Supp. 1983).
The appellant’s fourth argument on appeal is that the trial judge erred in refusing to dismiss a juror for cause. During voir dire, one of the jurors revealed that he had been a victim of a robbery two years ago. The appellant asked that the juror be excused for cause, and the trial court refused. The appellant then used one of his peremptory challenges to excuse the juror. The appellant asserts that he was forced to use a peremptory challenge which he “might properly have used at a different occasion.” We have previously held that in order to preserve this issue for appeal, the appellant must have exhausted his peremptory challenges and must state for the record that there is an individual sitting on the jury that he would have stricken if he had another peremptory challenge. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). There is no error shown here as appellant’s counsel accepted the twelve jurors who were ultimately seated, and he has not shown that the appellant was compelled to take any undesirable juror. Isom v. State, 280 Ark. 131, 655 S.W.2d 405 (1983).
We affirm. | [
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Darrell Hickman, Justice.
Johnny Dale Bone, manager of a Radio Shack store in Little Rock, Arkansas, was fired or quit as a result of an investigation of irregularities in the operation of his store. Bone sued his employer alleging intentional infliction of mental distress as a result of the investigation. He also claimed that he was later slandered by another employee. The jury returned a verdict against Tandy Corporation, the parent company of Radio Shack, for $5,000 for slander, $9,000 for infliction of emotional distress and $100,000 in punitive damages. Tandy appeals and Bone cross-appeals.
The appellants raise seven points on appeal, two of which are meritorious and require us to reverse the judgment and remand the case for a new trial. The appellee raises five questions on cross-appeal, one of which has merit.
Over the objection of the appellants, the court gave AMI 2217, a standard jury instruction, which concerns punitive damages. We held in Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979), that this instruction was designed to be used in cases of neligence, not in cases such as this one which involve an intentional tort. Just as we did in Ford Motor Credit Co., supra, we reverse and remand the case for a new trial because of this error.
The appellee argues that the appellants did not make a proper objection to this instruction because no instruction was proffered in substitution. There is no such requirement. All that is required to preserve an objection for appeal regarding an erroneous instruction of law is to make a timely objection and state valid reasons for the objection. ARCP Rule 51. The appellants did both.
The trial court was also wrong in commenting on the weight to be given certain evidence offered by the appellants in the form of computer printouts. The court stated that the evidence was double hearsay and “terribly, terribly suspect.” When the appellants moved for a mistrial, the court gave a mild admonition to the jury to disregard the court’s remark. The Arkansas Constitution prohibits trial judges from commenting to the jury regarding matters of fact which are within the province of the jury. Art. 7 § 23 Ark. Const. (1874). The admonition given the jury by the court is as follows:
Ladies and Gentlemen, they are scolding me because I’m talking about the legal significance of it. You ladies and gentlemen don’t pay any attention to what the court says about this. It’s just a legal question. You don’t let that influence you in your weighing of the evidence which you are receiving.
That admonition could not cure the remarks by the trial court whose words and opinions are undoubtedly given a good deal of weight by a jury.
At the request of the appellants, the court instructed the jury that statements, although slanderous, may be privileged when made without malice, in good faith, and relate to a subject bearing upon the employment relationship. There was no basis for giving this instruction. The alleged statement in this case was made by an employee to a customer who inquired of Bone’s whereabouts. In essence the statement was that Bone had been fired for stealing. The jury had no circumstance before it which would give rise to the defense of privilege. See Dillard Dept. Stores, Inc., v. Felton, 276 Ark. 304, 634 S.W.2d 135 (1982).
Aside from these questions and other questions which we must discuss, the most difficult question before us is Bone’s main cause of action which he describes as the intentional infliction of mental distress and which we have called the tort of extreme outrage.-The appellants argue that there is no substantial evidence that would support a finding of intentional infliction of mental distress or extreme outrage and request that the judgment be reversed and dismissed. In reviewing this question on appeal, we must examine the evidence in the light most favorable to the appellee, who, in this case, is Johnny Dale Bone. We affirm if there is any substantial evidence to support the finding of the jury. Taylor v. Terry, 279 Ark. 97, 649 S.W.2d 392 (1983). We find there was in this case as we will explain.
We first examined the question of outrage in M.B.M. Co. v. Counce, 286 Ark. 269, 596 S.W.2d 681 (1980), where we said:
. . . .[0]ne who by extreme and outrageous conduct wilfully or wantonly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress.
By extreme and outrageous conduct, we mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. See Restatement of the Law, Torts, 2d 72, § 46, Comment d.
In Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982), we found no outrageous conduct and emphasized the conduct complained of must be both extreme and outrageous. We said:
The new and still developing tort of outrage is not easily established. It requires clear-cut proof. ‘Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ (Italics supplied.)
In two cases we have held that a case was made for the jury of extreme outrage. In M.B.M. Co. v. Counce, supra, an employee was suspected of stealing but was told she was being laid off because of too many employees. She was later told she must submit to a polygraph test before she would receive her last paycheck. Although she passed the test, $36 was deducted from her final paycheck as her share of the missing money. She was denied unemployment benefits due to the reasons given by her employer for her dismissal. In a more recent case, the owner of a cemetery that held itself out as supplying perpetual care, caused exposure of vaults by excavation work and travel across the graves, all with such callous disregard that it was found to be outrageous conduct. Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984).
Not all courts are in agreement about the tort of outrage and how to treat it. As stated in 38 Am. Jur. 2d, Fright, Shock, and Mental Disturbance, § 13:
In respect of the right to maintain an action for a bodily injury or illness resulting from a mental or emotional disturbance, the authorities are in a state of dissension probably unequaled in the law of torts.
We have taken a somewhat strict approach to this cause of action. Recognition of this new tort should not and does not open the doors of the courts to every slight insult or indignity one must endure in life. For example, abrasive profanity alone is not sufficient reason to have a cause of action. W. Prosser, The Law of Torts, § 12 (4th Ed. 1971); see also Brooker v. Silverthorne, 111 S.C. 553, 99 S.E. 350 (1919); Food Fair, Inc. v. Anderson, 382 So. 2d 150 (Fla. Dist. Ct. App. 1980). But see Curnett v. Wolf, 244 Iowa 683, 57 N.W.2d 915 (1953) and 15 ALR2d 108 (1951).
The relevant facts are as follows. Johnny Dale Bone was hired in early 1983 as the manager of a Radio Shack store in Little Rock, Arkansas. Brooks Robbins was his assistant. Bone said he suspected that Robbins was stealing, but felt he could not prove it. He did send a memorandum to his superior regarding the unsatisfactory conduct of his employee. Bone was informed on two occasions by his supervisor that certain practices in the store were not satisfactory. On August 13, 1983, his supervisor, Mr. Max Griswold, and two security people came to the store at 9:30 a.m. to conduct an investigation. Bone and Robbins knew the investigation was going to be made. They were questioned at thirty minute intervals during the day. According to Bone, the security men cursed him, threatened him, and refused on two occasions during the questioning to allow him to take medication. Bone said, however, he was not touched by the security people. Brooks Robbins testified that he admitted to the investigators he was guilty of theft and was fired on the spot. That afternoon, about 3:30 p.m. after the questioning, Bone was asked to take a polygraph examination and he consented. However, he was in a highly agitated condition and he said he again requested that he be allowed to take his medication, which was a tranquilizer. It is conceded he was denied the request because it might affect the outcome of the test. Bone was taken to another location in Little Rock to take the test, but he hyperventilated. Paramedics were called. Bone recovered sufficiently to be taken home by Griswold. He returned to work the next day but could not continue. He called a psychiatrist for help and was eventually hospitalized on August 23. He remained in the hospital about a week and never returned to work. Bone’s attorney wrote the appellants in August informing them that suit would be filed. The appellants offered testimony that Bone was terminated because he failed to return from medical leave.
According to the evidence, Bone had been taking Valium for at least three years and had a prescription for it from a psychiatrist. The psychiatrist, who treated Bone for the hyperventilation and anxiety, testified that Bone suffered from a personality disorder which made him more susceptible to stress and fear than someone who did not have the personality disorder. He said that Bone had paranoid trends and episodes in which he is nearly, but not completely, psychotic and unable to function effectively with other people socially. He said that Bone had a low tolerance for frustration. Bone had first sought the services of a psychiatrist when he was in a federal penitentiary in 1979.
The appellants’ evidence was contradictory: Bone was not cursed or called names during the questioning. One of the officers testified that the questioning began about noon and he did not know Bone took Valium until they were leaving to take the polygraph test and Bone then requested it. Bone told him then that he took it in the evening to relax. He told Bone it would be best if he could do without it because it would affect the polygraph test and Bone agreed.
Bone’s suit was based on the fact that he was interrogated most of the day at 30 minute intervals, alternating between him and his assistant without a break for lunch, he was denied his Valium or medication when he was obviously under emotional stress, and the interrogators cursed him, accused him of stealing and threatened to have him arrested.
Was the employer’s conduct extremely outrageous? Bone knew that he was going to be interrogated about the operations of the store before the security men arrived. There were serious deficiencies in the operation of the store. Bone knew that he was responsible for the operation of the store and would have to account for any discrepancies. Furthermore, Bone did not object to the polygraph examination and, in fact, agreed to take it. Fie returned to work the next day and stated that he still wanted to take the polygraph examination. The fact that he was questioned, the way he was questioned and requested to take a polygraph examination would not be outrageous conduct on the part of an employer investigating possible theft, serious inventory shortages, and unacceptable business practices as the employer had evidence of here. The conduct on the part of the employer that does give us difficulty is the undisputed evidence that Bone was obviously undergoing a good deal of stress, requested his Valium or medication, and was denied that privilege. The employer was on notice at that point that Bone may not have been a person of ordinary temperament, able to endure a stressful situation such as he was placed in without injury.
In Givens v. Hixon, supra, we noted that the defendant knew nothing about the plaintiff’s heart condition or the fact he was easily upset. Also, in the case of M.B.M. Co. v. Counce, supra, we adopted the standard that “[t]he emotional distress for which damages may be sought must be so severe that no reasonable person could be expected to endure it.” See also Prosser, supra, p. 50.
If the employer in this case had been completely ignorant of Bone’s condition, it may be that Bone would not have a case of extreme outrage. However, the employer was not completely ignorant of Bone’s temperament nor for that matter diligent in learning about Bone’s background. The employer discovered shortly after Bone was employed that he had lied on his application about his criminal record and had been convicted of a felony. His supervisor did not bother to find out what the conviction was for. The supervisor said that if he had learned that it was for selling heroin he would have terminated Bone. He could have easily discovered this information and perhaps more about Bone’s background.
More importantly, we have to take Bone’s testimony at its face value in examining the legal question before us. Bone said that on at least three occasions during the day he requested that he be permitted to take his medication. At one time he said he reached for a drawer to get it and the drawer was slammed shut by one of the investigators. He said that before he went to take the polygraph test he was “begging” to take it. His supervisor admitted that Bone requested that he be allowed to take his Valium before the polygraph test was to be administered. One of the investigators testified that he intended to place Bone and the other employee in a somewhat stressful situation. So we do not have a situation of an employee of ordinary emotional stamina, and we do not have a situation in which the employer was totally ignorant of the physical or emotional condition of the appellee as was in Givens- v. Hixon, supra. It was for the jury to decide whether under the circumstances it was outrageous conduct for the employer to deny Bone his medication and to continue to pursue the investigation knowing Bone was on medication or Valium. We emphasize that the notice to the employer of Bone’s condition is the only basis for a jury question of extreme outrage. Whether Bone’s testimony was credible, whether he had intentionally lied to his employer , whether the employer was reasonable in denying him his medication, and whether, considering all the circumstances, the employer was guilty of outrageous conduct that proximately caused emotional distress to Bone were all questions for the jury. Because of the evidence we have outlined, there would be substantial evidence to support a verdict for outrage.
The jury also found that Bone had been slandered when an employee of Radio Shack told a customer that Bone had been fired for stealing. The appellants argue on appeal that there was insufficient evidence of slander. We do not agree. A customer testified an employee, he assumed to be the manager, told him the former manager had been fired for stealing. Two other witnesses testified an employee told them that Bone was fired for reasons that he did not “want to get into right now.” All inferences must be taken in the light most favorable to the appellee and from this evidence the jury could easily have found slander. See Arkansas Ass. Telephone Co. v. Blankenship, 211 Ark. 645, 201 S.W.2d 1019 (1947).
The appellants argue that the trial court erred in refusing to give an instruction that the jury could take into account Bone’s lack of good character and reputation in assessing any damage to his reputation. This argument was made based on the evidence of Bone’s conviction in federal court. Bone admitted the conviction during direct examination. This is not evidence of Bone’s reputation. Specific instances of wrongdoing are not reputation for bad character or opinion evidence that is contemplated by such an instruction. See 2 D. W. Louisell and C. B. Mueller, Federal Evidence § 143 (1978).
Appellants argue that it was wrong to allow Bone to deny that he was actually guilty of a crime for which he had been convicted. A witness cannot offer evidence which would amount to a retrial of that prior conviction. Jones v. State, 277 Ark. 345, 641 S.W.2d 717 (1982). Bone should not have been allowed to try to demonstrate his innocence, but this is an issue of relevancy and the trial judge is permitted a wide range of discretion. Jones v. State, supra.
Another point raised by appellant concerns hearsay. Bone testified that at one point he had been told by his probation officer to put “no” if he were asked on an employment form whether he had been convicted of a felony. The objection was properly overruled. This is not an example of hearsay since Bone was not offering the statement to prove whether the probation officer so directed him but instead he was offering it to prove his motive in so filling out the form. This was also a discretionary ruling.
On cross-appeal Bone argues that the trial court erred in not entering the rate of interest on the judgment, which he contends should have been ten percent from the date of the judgment, according to Ark. Stat. Ann. § 29-124 (Repl. 1979). This is a matter which can be corrected upon retrial.
Bone argues that the trial court erred in permitting introduction of the appellee’s employment application and cross-examination regarding his prior employment history because they were irrelevant. Bone admitted he lied on the employment form and, therefore, the trial judge did not abuse his discretion in admitting the form.
Bone also argues that the court erred in refusing to direct a verdict for him on the appellants’ counter-claim for $28,000 in inventory losses. No motion for a directed verdict appears in the record. Bone (cross-appellant) therefore cannot raise the court’s failure to grant it. As part of this point Bone also argues it was error for the court to instruct the jury that Bone owed appellants a fiduciary duty. There was no error since Bone was the appellants’ employee and agent in this case, as manager of their store, and, thus, owed them a fiduciary duty. See H. Resuchlein and W. Gregory, Handbook of the Law of Agency and Partnership, §§ 4, 67 (1979); Restatement (Second) Agency § 220 (1958); 53 Am. Jur. 2d Master and Servant § 97 (1953). Bone argues that his employment contract controls any duty he owed and that it provides that an employee will be liable for losses due only to gross negligence or dishonesty. The contract contains no such limitation; it merely recites that if there are losses occasioned by the dishonesty or gross negligence of the employee, then the employer has the right to deduct the losses from the employee’s wages.
The final issue, raised on cross-appeal, involves records. Immediately after this incident, the appellants conducted an inventory by computer and offered into evidence the results of computation in the form of certain printouts. An objection was made that these printouts were hearsay. Bone here argues they were prepared after notice of suit and for the purposes of testimony at trial and could not be admissible under Rules of Evidence 803 (6). The trial court, in its discretion, allowed the printouts to be admitted, and we cannot say the decision was clearly wrong.
The appellee also argues that the appeal should be dismissed because of violation of Supreme Court Rule 9. We find no such violation.
The case is remanded for a new trial.
Reversed and remanded.
For example, Bone had difficulty explaining the sale to a customer of a piece of merchandise which involved a check made payable directly to him which noted it was in “repayment of a loan.” Bone testified that the equipment was his and not the property of Radio Shack, but he could not explain why the notation was made on the check. Bone said he denied throughout the investigation that he was guilty of any theft or committed any intentional dishonest act.
The evidence revealed that Bone had lied to his employer in several instances. On his employment application form, .he marked “No” in answer to whether he had been convicted of a felony. In fact, he had been convicted of distributing heroin and sentenced to the federal penitentiary. He marked that he was a high school graduate when actually he had only completed the ninth grade. He explained that he had a graduate equivalency diploma and thought that the question permitted the answer he gave. He conceded that he lied when he noted that he had completed one year of college. He had not. His employer did not know that he had been under medication or taking Valium for at least three years. Bone testified that he was not asked at the time of his employment if he had ever been treated by a psychiatrist. | [
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George Rose Smith, Justice.
On June 1, 1982, after a hearing in open court, the trial judge accepted Welch’s negotiated plea of guilty to a charge of conspiring to commit capital murder and imposed the recommended sentence of 20 years. In July, 1983, Welch filed this petition for postconviction relief under A.R.Cr.P. Rule 37. The petition was denied after a hearing at which Welch was represented by retained counsel. Among eight grounds for relief alleged in the petition, three are now argued as points for reversal.
First, it is said that the petition should have been granted for ineffectiveness of counsel at the original hearing on the plea of guilty. At that hearing Welch stated that he was guilty. That must still be his position, for he has not testified or even alleged otherwise. At the post-conviction hearing he produced no evidence to show that his conviction is not reliable. It is therefore unnecessary for us to examine the alleged ineffectiveness of counsel, for Welch could not have been prejudiced. Crockett v. State, 282 Ark. 582, 669 S.W. 2d 896 (1984).
Second, it is argued that the trial judge accepted Welch’s guilty plea without fully explaining to him all the elements of the offense and the possible minimum and maximum sentences, as required by Rule 24.4. There is no substance to this argument. The judge explained to Welch that he was charged with having conspired with others to promote the commission of the capital murder of Wade K. Smith and that the range of punishment was not less than 5 nor more than 50 years or life and/or a fine not to exceed $15,000. Thus the record contained a prima facie showing of substantial compliance with the Rule. Welch was in jail for a year awaiting trial and consulted with his attorneys some 25 times before the plea of guilty and the sentence was negotiated. He has not testified or even alleged that he was misled by any misconception of the charge or of the range of punishment. Despite a trial judge’s failure to comply strictly with the Rule in accepting a plea of guilty, deficiencies may be supplied at the postconviction hearing. Deason v. State, 263 Ark. 56, 562 S.W.2d 79, cert. den. 439 U.S. 839 (1978). The key question is whether the plea of guilty was made intelligently and voluntarily. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982). Here that question must, on the record, be answered in the affirmative.
Third, complaint is made of the trial judge’s denial of a motion to recuse himself at the Rule 37 hearing. No constitutional or statutory ground for disqualification is even suggested. Ark. Const., Art. 7, § 20 (1874); Ark. Stat. Ann. § 22-113 (Repl. 1962). Instead, the motion to recuse was based upon two circumstances supposedly indicating bias. (1) The trial judge had recently presided at the trial of the victim’s wife, who had allegedly employed two or more persons to commit the murder. The judge mentioned some facts brought out at that trial in questioning Welch to determine whether he was in fact guilty. Under Rule 24.6 it was the trial judge’s duty to make that determination. It is not shown that his having presided at the other trial was in any way a disqualification. Nor was the judge under any duty to take the witnss stand, as requested, and explain his mental processes in accepting the plea. (2) Complaint is made that after the original plea had been accepted at the hearing in open court, Welch was brought back to court the next day, sworn, and asked if his answers to the questions put to him the day before would still be the same. He said they would be. Since a plea of guilty need not be made under oath, the second proceeding was unnecessary and certainly does not indicate that the trial judge was so biased as to call for his recusal at the Rule 37 proceeding.
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Steele Hays, Justice.
This case comes to us on appeal from a delaratory judgment against the appellant, Connie Grogg, in favor of Colley Home Center, Inc. and National Mortgage Corporation of America. The only question is whether Arkansas or Oklahoma law governs an installment loan contract, between the parties for a mobile home purchased in Oklahoma and delivered to Grogg in Arkansas. The contract called for twelve percent interest which would render the indebtedness void under Arkansas, law. The Chancellor found the parties intended that Oklahoma law applied and upheld the contract. We affirm.
The first contact between the parties occurred in July of 1978 when Grogg visited the sales lot of Colley Mobile Homes Sales in Barling, Arkansas. None of the mobile homes located on this lot suited her and she was told by a representative of Colley’s that they maintained a separate lot in Roland, Oklahoma and she might find what she wanted there. She drove to the Oklahoma lot that afternoon and chose a 1978 mobile home. She negotiated for the purchase of the home with Don Boshears, the manager of the Oklahoma lot, and signed a contract for its purchase. It was later found that an identical 1979 model, already purchased for the Roland lot and en route to Oklahoma, was temporarily at the Arkansas lot. Boshears called Grogg and offered to sell the later model for the same price, thereby saving her transportation and delivery costs. Grogg agreed and the 1979 model was delivered and set up at a mobile home park in Arkansas.
All negotiations except the telephone call, the signing of all documents, including the assignment of the contract to National Mortgage, occurred in Oklahoma. The down payment was made in Oklahoma and the remaining balance was financed by National of Texas, all payments to be sent to National in Dallas. Colley treated the Roland lot as a separate business operation at all times, maintaining a separate account for that operation. The payment delivered to the manufacturer for the 1979 home was made out of the Roland bank account, and the payment received from National Mortgage when the contract was assigned was deposited to the Roland account. Approximately the same number of homes were offered for sale on each lot. It is not disputed that Colley was never properly qualified through the Secretary of State’s office to do business in Oklahoma, however, Colley did have a mobile home dealer’s license from the State of Oklahoma for its Roland operation prior to commencing business at that location. We also note the home was delivered to an Arkansas location, Arkansas sales taxes were paid on the transaction, the U.C.C. filing was done in Arkansas, the home was licensed and titled in Arkansas, the license fee charged was based on Arkansas licensing fees, the insurance on the home was written in Arkansas and after the purchase, Grogg bought accessories and repair items from Colley at Barling.
Since Cooper v. Cherokee Village Development Co., 236 Ark. 37, 364 S.W.2d 158 (1963), our cases have followeda consistent and reasonable approach to the difficult area of multistate contracts, specifically those involving usury. In Cooper we noted that in determining what law governs the validity of a multistate contract we had on different occasions applied three different theories: 1) The law where the contract was made; 2) the law where the contract was to be performed in its most essential features; and 3) the law of the state which the parties intended to govern the contract. We noted, too, in Cooper a consistent preference for the law of the state that would make the contract valid rather than void. An exception to the application arises, however, when the issue of usury is involved and the laws of another state become a sham for charging a higher rate and avoiding the harsh penalty applied by our law. We addressed this conflicts problem in Cooper where the parties had agreed that New York law would govern the contract. We found all three theories pointed to the law of New York rather than Arkansas and said: “This is not a case of a cloak for usury or where the parties to a wholly Arkansas contract have sought to avoid the Arkansas usury laws by having the validity of the contract determined by the laws of a state having no substantial connection with the contract.” In Snow v. C.I.T. Corp. of the South, 278 Ark. 554, 647 S.W.2d 465 (1983), our most recent case dealing with the same issue, we reached the same result, applying the law that upheld the contract, but where not all theories pointed to the same state. In Snow the transaction had a direct connection with four states: Arkansas, where the contract of sale was negotiated between the president of an Arkansas drilling supply company and an Arkansas resident; Tennessee, where the actual seller, a dealer, had the rig for sale and where the contract documents were signed; Georgia, where the finance company had its principal office and completed the sale by signing the documents, and (whose laws governed the transaction by agreement); and Kansas, where the rig was delivered and used by Snow. With the transaction having a direct connection with four states, we held that the choice of Georgia law was not unreasonable and, like Cooper, we found the selection of Georgia law was not a cloak to avoid Arkansas’ usury laws.
In Yarbrough v. Prentice Lee Tractor Co., 252 Ark. 349, 479 S.W.2d 549 (1972), a case very much like this one, an Arkansas resident purchased a tractor and truck from Prentice, a Louisiana seller, which assigned the note to a Louisiana bank. There was conflict in the testimony but it appeared the negotiations and excution of the contract took place in both states while the equipment was delivered and used in Arkansas. We found no particular act would establish one state’s contacts as being more significant than the other. Citing Cooper, we held where both states’ laws were applicable we would apply the law that would make the contract valid rather than void where it was not a wholly Arkansas contract, nor an attempt to avoid the Arkansas usury penalty through the laws of a state having no substantial connection to the contract. We also found the parties had dealt with each other for a number of years and although there was no evidence the previous contracts were all similar to the one at issue, it was difficult to conceive that the parties entered into these prior contracts with the intention they be construed under the law of Arkansas for if that were the case, cancellation would likely have been previously sought. This, we found, justified an inference that the intention was to subject the agreement to Louisiana law.
In this case, as in Yarbrough, we find there are substantial connections to either Arkansas or Oklahoma to allow the laws of either state to govern the transaction and absent a showing of the usurious cloak we will choose the law which will uphold the contract’s validity. Such choice is based on a presumption that the parties intend to contract with reference to the law that would uphold, rather than invalidate, their contract. See Dupree v. Virgil R. Cross Mortgage Co., 167 Ark. 18 (1924); Wilson-Ward v. Walker, 125 Ark. 404 (1916). In addition to this presumption we have the fact that Grogg without solicitation or any underhandedness on the part of the appellee sought out the Oklahoma place of business, all the negotiations for the purchase occurred in Oklahoma (extending over a period of four months), all of the many documents were executed in Oklahoma, the primary contracts stated clearly the place of execution as Oklahoma, and on the face of the contracts the interest rate of twelve percent was obviously stated in clear, unambiguous terms. It was not until almost five years later that Gross, by her own account, was alert enough to notice the interest rate was twelve percent, and raise the usury issue. Yet at the hearing she testified that she had assumed from the beginning that it was “an Arkansas deal, you know; it was delivered in Arkansas, and I lived in Arkansas, I thought the Arkansas law would govern. ” It is not a strained inference to find that Grogg then, at the time of the making of the contract was aware of Arkansas interest limits and knew or should have known that she was signing a contract for twelve percent interest, yet made no protest until she filed suit almost five years later. The situation is similar to Yarbrough where there had been no previous objection under earlier contracts which acted to justify an inference and bolster the presumption that the intention was to subject the agreement to the state that would validate the contract.
The appellant points to two items in the contracts she contends indicate a contrary in test of the parties: Statements that l)aU.C.C. filing statement must be filed with this state; 2) insurance must be acquired by a company authorized to do business in this state. We note that the forms were standard forms supplied by National Mortgage of Texas, and obviously were not prepared with the thought in mind of a multistate transaction of this sort which requires a U.C.C. filing where the property will be located, which in this case was Arkansas. Also, Grogg apparently acquired insurance through an out-of-state company that was authorized to do business in Arkansas but that does not compel us to conclude that “this state” in that context dictates Arkansas law as the parties intent. These points are of too little significance to rebut the presumption and the supporting factors discussed above to conclude that the parties intended Arkansas law to govern. Under the facts in this case and the presumption of intent, we cannot say that the finding of the trial court that the parties intended Oklahoma law to govern, was clearly erroneous.
This is not a case of a wholly Arkansas contract where there has been an attempt to avoid the usury law by substituting the law of a state with no substantial connection with the contract. We have already noted the legitimate connections of Oklahoma to this contract and the parties intent. The appellant has made no showing nor does the evidence suggest a cloak of usury surrounding the transaction and neither was there any evidence of enticement, solicitation, overreaching or any unconscionable act by the appellees. Under these circumstances, we will choose the law of the state that will make the contract valid rather than void.
Affirmed.
Purtle, J., dissents. | [
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P. A. Hollingsworth, Justice.
The appellant, A1 Stamper, was adjusting a high tension spring on a garage door when the aluminum winding sleeve broke, causing him to lose the vision of his right eye. The appellant filed suit against Aluminum & Zinc Die Cast Co., (A & Z), the manufacturer of the winding sleeve; APCO Power-Unit Corp., (APCO), the seller; and Windsor Door Co., (Windsor), the distributor. The jury found that the appellant was guilty of negligence in making the adjustment which was a proximate cause of his injury. This appeal is before us under Sup. Ct. R. 29(1 )(m) because it presents a question as to products liability.
The appellant raises two issues on appeal. First he claims the trial court erred in admitting into evidence the testimony and videotaped deposition of Gerald Sanders. The appellant’s second argument challenges the trial court’s denial of his motion for new trial. We find no merit in either issue and affirm the trial court.
The appellant first argues that the trial court erred in admitting into evidence the testimony and videotaped deposition of Gerald Sanders, subrogation agent for the appellant’s workers’ compensation carrier, Aetna Insurance Co.
After the appellant was injured, the spring plug that fits inside the spring that opens the garage door was delivered to Sanders. He in turn mailed the part to Asa Morton, the appellant’s expert, for analysis. After his examination, Morton mailed the part back to Sanders along with his report. Sanders claimed he never received the part. The spring plug was missing for over three years. About a month before the trial of this case, while Sanders was talking to an attorney inolved in the litigation, the part came rolling out of his desk drawer. Mr. Sanders’ testimony at the trial essentially repeated the above-recited facts. The videotape was of Mr. Sanders’ office and was used to show the jury where the part was lost. There was no reference made in front of the jury to the fact that Mr. Sanders was a subrogation agent, and nothing in the videotape indicated that his office was in an insurance company. Nevertheless, the appellant argues that Mr. Sanders’ testimony was irrelevant and should have been excluded.
The appellant attempted to have the testimony excluded through a motion in limine. The appellees argued that the testimony was important to their defense and suggested that it would be used to show that the part was altered or damaged while it was missing, or that the claimed loss of the part was a bad faith allegation.
The trial judge, after a hearing, admitted the testimony for the narrow purpose of discussing the loss of the part. He prohibited arjy mention of Mr. Sanders’ occupation, the type of office in the videotape, or that an insurance company had compensated the appellant. At trial, the appellees never raised the question of the alteration of the missing part, nor did they argue that its loss was deliberate.
Although we agree with the appellant that the testimony and videotape deposition are seemingly lacking in relevance, we are unable to determine that any prejudice resulted to the appellant because of the admission of the testimony. We have long held that we reverse for prejudicial error only. Aetna Indemnity Co. v. Little Rock, 89 Ark. 95, 115 S.W. 960 (1909).
The appellant’s second point concerns the trial court’s denial of its post-trial motions for a new trial or a judgment notwithstanding the verdict. The appellant argues that the jury’s verdict was based on a statement made by defense counsel in closing arguments which presented facts outside of the trial record. In his closing argument, A & Z’s attorney argued that since the winding bar hole was seven feet ten inches above the ground, a six-foot ladder and a two-foot winding bar would make it possible for the winding bar to strike the ladder and break the spring’s casting. The appellant argues that the height of the winding bar hole above the ground was not in the trial record. The appellant objected to the defense attorney’s statement and the trial judge admonished the jury that the remarks of attorneys are not evidence. Nevertheless, the appellant argues the remark was highly prejudicial in that it enabled the jury to agree with one of the defense experts, Dr. Courtney Busche, who testified that the winding bar hit an object after the appellant released it.
Although the appellant now claims that the attorney’s statement was highly prejudicial, he did not request a mistrial after the remark was made. Instead, he appeared satisfied with the court’s admonition. In Howe v. Freeland, 237 Ark. 705, 375 S.W. 2d 666 (1964), the appellant also objected to a statement made during closing argument. The court in that case admonished the jury and on appeal, the appellant claimed that those statements inflamed the minds of the jurors, causing them to reach an excessive verdict. We stated:
We find no reversible error. Admittedly, the court admonished the jury to consider only evidence in the record each time that counsel for appellant objected. This apparently satisfied counsel, since he did not complain that the court’s admonition was insufficient, nor did he move for a mistrial. It was only after an adverse judgment had been rendered that the assertion was made that the court’s admonition was insufficient.
See also, Sterling Stores, Inc. v. Martin, 238 Ark. 1041, 386 S.W.2d 711 (1965). A trial court is accorded great latitude in correcting any prejudicial effect of argument by counsel, and we do not reverse unless it appears that prejudice resulted from the improper argument and the court’s admonition was insufficient to remove the prejudicial effect from the jurors’ minds. Buckeye Cellulose Corp. v. Vandament, 256 Ark. 434, 508 S.W.2d 49 (1974).
Here, the appellant claims that the jury’s verdict was based solely on the alleged improper statement made by a defense attorney. The appellant fails to note however, that the jury heard the testimony of Asa Morton, the appellant’s expert, and James Robert Kattus, Windsor’s expert, to the effect that the part was defective. We have held that the weight of the evidence and the credibility of a witness are matters for the jury and not for this court. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). The jury here apparently chose to believe the testimony of one of appellees’ experts, Dr. Busche, over that of the other two experts. We have held that, “it is the exclusive province of the jury to determine the value and weight to be given the testimony of expert witnesses, and the jury is authorized to believe or disbelieve the whole or any part of such expert witnesses’ testimony.” U.S. Borax & Chemical Co. v. Blackhawk Warehousing & Leasing Co., 266 Ark. 831, 586 S.W.2d 248 (1979). We stated in The Western Union Telegraph Co. v. Byrd, Adm’x, 197 Ark. 152, 122 S.W.2d 569 (1938), that:
Where there is a conflict in the evidence the determination by the jury of the issues is conclusive. “The fact that this court would have reached a different conclusion ... or that they (the judges) are of the opinion that the verdict is against the preponderance of the evidence, will not warrant the setting aside of a verdict based upon conflicting evidence.” (citation omitted).
We find that the jury could reasonably have based its verdict on the testimony, rather than on the defense counsel’s remark during this closing argument. Therefore, we affirm the trial court’s denial of the appellant’s motions.
The appellant makes two other arguments which we will address briefly. First, he claims that the defense counsel’s statement during closing arguments was made in deliberate bad faith. We find no evidence to support this allegation.
Second, in the conclusion to his brief, the appellant states that this court should direct a verdict in his favor based upon the admission of liability by the defendant Windor’s expert witness. In their answser to appellant’s complaint, Windsor denied liability. Although Windsor’s expert testified that the part was defective, that did not amount to an admission of liability by Windsor. We held in The Western Union Telegraph Co., supra., that a party is not bound by the testimony of a witness introduced by him. Rather, we stated, it is for the jury to decide what weight to give the testimony. The jury here apparently decided to disregard Windsor’s expert testimony.
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Per Curiam.
The petitioner’s request for reconsideration of the Petition for Writ of Prohibition is denied.
Purtle, Dudley and Hollingsworth, JJ., would grant. | [
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P. A. Hollingsworth, Justice.
The appellee, Edward Erxleben, as Director of Purchasing for the State of Arkansas, invited bids on April 7, 1981, for the printing of Volumes 269, 270, and 271 of the Arkansas Reports. The contract was awarded to the lowest bidder, United Services of Arkansas Inc., on April 24, 1981. At the time its bid was accepted, United Services had forfeited its charter for failure to pay its franchise tax. The appellee did not have actual knowledge of their defunct status at the time the contract was awarded. The appellant, General Publishing Co., Inc., submitted the néxt lowest bid and protested the director’s action in awarding the contract. The protest was denied and the State honored the contract, even after being notified of United Services’ failure to pay its franchise tax.
United Services paid the taxes and was reinstated after the contract was awarded but before the work was completed. The contract was fully performed and United Services was paid by the appellee, Julia Hughes Jones, the state auditor. The appellant filed a lawsuit challenging the appellees’ actions. The trial court dismissed the action on a motion for summary judgment filed by the appellees. It is from that action that this appeal is brought. This case comes to us under Sup. Ct. R. 29 (1) (a) & (c) because it involves interpreting the Arkansas Constitution and Arkansas statutes.
The trial judge granted the appellees’ motion for summary judgment on the grounds that no justiciable controversy existed, and the appellant was seeking in impermissible advisory opinion on a moot question.
Volumes 269,270 and 271 of the Arkansas Reports have already been printed and United Services has been paid for its work. Therefore, the question of determining who is the proper party to be awarded the contract is moot. We do not ordinarily decide moot issues, Mabry v. Kettering, 92 Ark. 81, 122 S.W. 115 (1909), and will not here. We agree with the trial court and affirm.
Affirmed.
Purtle and Dudley, JJ., not participating. | [
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Webb Hubbell, Chief Justice.
Appellant Donnie Lynn Lair was found guilty by a jury of burglary and attempted rape and sentenced to concurrent terms of imprisonment of 20 and 30 years. Appellant argues three points for reversal. We find no error and affirm the judgment.
In June, 1983, appellant did some yard work for a Ft. Smith resident. He returned to her home about midnight and forced his way into the house. Appellant beat the woman and knocked her onto the floor. As he was holding the victim down, she seized a gun from a coffee table and shot him once in the hand. Appellant took the gun away from the victim and threatened to shoot her. He asked her to have sex with him and removed her clothing and took down his pants, but she persuaded him to wait until she had bandaged his hand. The victim finally convinced appellant to leave by saying that her brother would arrive soon. A medical examination later indicated that the victim had suffered a broken jaw in the attack.
Appellant moved for a mistrial after the prosecutor said to a venireman during voir dire, “Right, and if he’s found guilty, he’ll be sentenced in accordance with what the judge says, and normally in a case this severe, it would be penitentiary time.” The motion was denied.
A mistrial is a drastic remedy to be used only where any possible prejudice cannot be cured, and we will not reverse a decision denying a motion for mistrial absent an abuse of discretion or a showing of manifest prejudice. Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983); Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982); Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). After the court refused to grant the mistrial, the prosecutor reiterated that sentencing in Arkansas was in the province of the jury, and that none of the questioning was directed at forcing the juror to determine the punishment before having all the evidence. Moreover, the appellant failed to move to excuse the juror for cause or to exercise a peremptory challenge. See Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981). Jurors are presumed unbiased. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). There is nothing to indicate that appellant was prejudiced by the denial of his motion for mistrial.
The victim told the police that appellant said during the attack, “One good thing about it, you didn’t scream — you didn’t scream and holler like the others did.” Appellant made a motion in limine seeking to exclude from evidence any reference to the appellant’s comment. The motion was denied and the victim was allowed to testify to what the appellant said to her.
Appellant contends that the introduction of this evidence fails to meet our two part test for admissiblity of evidence of prior acts as set forth in Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). Although statements by the accused during the criminal episode arguably may not need to conform to the requirements for admissibility under Ark. Unif. R. Evid. Rules 403 and 404 (b), we do not have to reach this issue because the evidence is admissible under the test set forth in Price.
In Price we said that the evidence in question must first have independent relevance to the main issue or a material point. Second, the relevance of the evidence must be balanced against the danger of undue prejudice to the defendant. Here, we find that the evidence had independent relevance to show appellant’s state of mind and intent with regard to both the burglary and the attempted rape.
Appellant’s statement to the victim was part of the res gestae; as such, it was presumptively relevant and admissible. Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983). Moreover, the State is entitled to introduce evidence showing all circumstances which explain the act, show a motive for acting, or illustrate the accused’s state of mind even if other criminal offenses are brought to light. Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984); Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982); See also Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984).
The trial court has the discretion to balance evidence of prior bad acts with the possibility of undue prejudice to the appellant. Absent an abuse of the discretion, which we do not find in this case, the trial court’s conclusion regarding the admissibility of the evidence must stand. Price v. State.
Appellant’s third point for reversal is that the trial court erred in refusing to give his proposed jury instructions and verdict forms. Appellant’s proffered instructions and verdict forms offered the j ury the option of sentencing the appellant to imprisonment for not less than six (6) years nor more than thirty (30) years; probation for a period not to exceed five (5) years; payment of a fine not to exceed fifteen thousand dollars ($15,000); restitution; or imprisonment and a fine. After hearing arguments of counsel and reviewing the standard AMCI instructions and verdict forms, the trial court overruled appellant’s objection and refused the offer. The Court gave the standard instructions and forms but permitted counsel to argue probation or a suspended sentence to the jury.
Ark. Stat. Ann. § 41-802 (Repl. 1977) provides in pertinent part:
Role of Court and jury in sentencing. — (1) If a defendant is found guilty of an offense by the jury, the jury shall fix punishment as authorized by this Article [§§ 41-[ XXX-XX-XXXX ]]. (2) Except as provided in Chapter 13 [J 41-1301 — 41-1309], the Court shall fix punishment in any case where: . . .
In Gardner v. State, 263 Ark. 739, 761, 569 S.W.2d 74 (1978), we held that “[o]bviously the word ‘court’ in the context in these sections refers to the j udge, and not the j udge and j ury, just as it does in the context of our previous decisions on the subject.” The significance of the Gardner decision is not altered by the addition of new sentencing options made available to the court by recent amendments to Ark. Stat. Ann. § 41-803 (Supp. 1983).
The jury has no authority to grant probation. See Rood v. State, 4 Ark. App. 289, 630 S.W.2d 543 (1982); Ark. Stat. Ann. § 41-1201 et seq. (Repl. 1977). In Killman v. State, 274 Ark. 422, 425, 625 S.W.2d 489 (1981), we noted that “[s]ection 41-1201 sets out the criteria for the court in making a determination as to suspension or probation.. . .Therefore, questions of mitigation are properly presented to the court which has the responsibility of sentencing after the maximum punishment is fixed by the jury.” See also Heard v. State, 272 Ark. 140, 147, 612 S.W.2d 312 (1981).
We have consistently held that non-model instructions are to be given only when the trial court finds that the AMCI instruction does not accurately state the law or is inapplicable. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). The instruction given by the court here correctly set out the law and the range of sentencing upon conviction for burglary and attempted rape. Arguments for probation are properly addressed to the trial court after the jury has reached its verdict in accordance with the applicable instructions.
Affirmed. | [
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Webb Hubbell, Chief Justice.
After a hearing held August 16, 1982, the trial court accepted a plea of guilty from appellant, Vernon Dale Travis, to a charge of first degree murder and imposed the recommended sentence of twenty years. Appellant subsequently filed a Rule 37 petition for post-conviction relief. The trial court denied relief after a hearing at which Travis was represented by appointed counsel. On appeal appellant alleges ineffective assistance of counsel. We affirm.
On April 15, 1982, appellant was charged with capital murder and counsel was appointed to represent him. At a hearing on May 4, 1982, appellant announced he did not want that attorney to represent him and would not cooperate with him. The court cautioned appellant about the hazards of self-representation, but appellant insisted on representing himself if he could not have another atttorney. On August 10, 1983, the court appointed another attorney, who was then present with appellant on August 16, 1983, when a guilty plea was entered to a reduced charge of first degree murder pursuant to a plea agreement.
Appellant first contends he was denied effective assistance of counsel. He alleges his first attorney was inexperienced and neither his first nor his second attorney advised him on the law concerning his sentence. At the plea hearing of August 16, 1982, appellant admitted that he had had adequate time to discuss his case with his second experienced attorney and that he was present at the discussions between the prosecutor and defense counsel concerning the sentence associated with the plea bargain. When questioned by the court, appellant replied that this information was correct. Counsel is presumed competent, and the burden of overcoming that presumption is on appellant who must show more than mere errors, omissions, mistakes, improvident strategy, or bad tactics. United States v. Cronic, _ U.S. _, 104 S. Ct. 2039 (1984). Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).
It is unnecessary, however, for us to examine the alleged ineffectiveness of counsel absent a showing that appellant’s conviction was unreliable. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). See Also Strickland v. Washington, _ U.S. _, 104 S. Ct. 2052 (1984). At the post-conviction hearing, appellant merely asserts he was not guilty, a statement unsupported by any substantial evidence. Moreover, appellant’s counsel testified: “He did admit to me the killing of Frank Harris, I believe his name was, or I would never pled him guilty, and I stated that in the record.” The record reflects that no evidence was introduced at the Rule 37 hearing to contradict appellant’s admission of guilt in open court and his similar admission to his attorney. Since there is no reasonable doubt about appellant’s guilt or the reliability of his convictions, appellant has suffered no prejudice. The failure to prove either deficient performance by counsel or prejudice suffered defeats a claim of ineffective assistance of counsel. Welch v. State, 283 Ark. 281, 675 S.W.2d 641 (1984).
Appellant next alleges error in the trial court’s refusal to recuse himself from the Rule 37 hearing. The same judge who presides over a defendant’s trial may also preside over a post-conviction proceeding; disqualification is discretionary and will not justify reversal absent an abuse of discretion. Woods v. State, 278 Ark. 271, 644 S. W. 2d 937 (1983).
Appellant last argues insufficient evidence to support his conviction. The record reflects that appellant understood the rights he was waiving by his entry of a guilty plea and that he entered the plea of his own free will. In open court appellant admitted that after premeditation and deliberation he caused the death of the victim. Defense counsel also stated that: “He [appellant] has discussed with me the details of the killing. He has admitted that to me, has told me why.” A. R. Crim. P. 24.4
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Darrell Hickman, Justice.
The convictions of Stanley and Susan Lackey for rape have to be reversed because of the admission of inadmissiable and prejudicial evidence before the jury.
The trial judge first permitted the State to elicit evidence that the appellants had given marijuana to three children, aged five, six, and eleven. The judge then decided that the evidence was not admissible and admonished the jury to disregard it. The court should have granted a mistrial. For that reason the judgment is reversed and the cause remanded for a new trial.
The testimony of the victim, a sixteen-year-old who knew the appellants, was essentially the State’s case. During her cross-examination she conceded that there had been “friction” between her family and the appellants. Using this as grounds, the State endeavored to show the cause of the friction through testimony of the victim. The record reads:
VICTIM: When Stanley Joe gave my two little—
DEFENSE COUNSEL: I’m going to object, Your Honor.
PROSECUTING ATTORNEY: He asked about the friction.
[Counsel approached the bench].
DEFENSE COUNSEL: What she’s about to say, I’ll have to move for a mistrial. We’ve had a marijuana case pending here and if she goes into the marijuana case, I’m going to move for a mistrial. That’s what its leading up to.
PROSECUTING ATTORNEY: He asked the question, Judge.
THE COURT: You’re going to have to be careful. Go ahead. She can answer the question.
[Before the jury],
PROSECUTING ATTORNEY:. . ,[W]hat caused the friction between Mr. Lackey and [victim’s father]?
VICTIM: Mr. Lackey give my two little cousins and my sister some dope. My cousins were five and six and my sister was eleven.
# # #
DEFENSE COUNSEL: I move for a mistrial. That is highly prejudicial. It is not involved in the rape case at all.
THE COURT: Denied.
# # #
[Before the jury].
DEFENSE COUNSEL: This information is based on solely on hearsay. I renew my motion of a mistrial.
THE COURT: Your motion for mistrial will be denied.
DEFENSE COUNSEL: I would like to ask the court to give the jury a precautionary warning to disregard the testimony of [victim] since it was based on hearsay and its not personal knowledge. It has no bearing on the rape case.
PROSECUTING ATTORNEY: We don’t have any objection to that, Judge.
THE COURT: I think I should.
PROSECUTING ATTORNEY: I have no objection to that.
THE COURT: Ladies and gentlemen of the jury, there has been certain testimony just presented to you involving friction between one of the defendants and [victim’s father]. I’m going to advise you at this time that that testimony should be disregarded by you. What may have happened between [victim’s father] and the defendant previously has no bearing on the charge of rape. It should not be considered by you at all. Just wipe it out of your minds and disregard it.
The trial court undoubtedly realized that the evidence was totally irrelevant and prejudicial and tried to correct the error with an admonition. Evidence of other crimes has long been considered the type that has no place in a trial. Ark. Stat. Ann. § 28-1001, Rule 404(b) (Repl. 1979). Since Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), we have consistently held that admission of such evidence is cause for a new trial. Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981); McCoy v. State, 270 Ark. 145, 603 S.W.2d 418 (1980); Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979), cert denied, 447 U.S. 923 (1980); Moser v. State, 266 Ark. 200, 583 S.W.2d 15 (1979); Rios v. State, 262 Ark. 407, 557 S.W.2d 198 (1977); Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971). The admonition in this case was useless, the damage having been done. See Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983). The mere mention of “friction” by the defense was no reason to allow this type of evidence before the jury. The trial judge recognized that after the fact. The error can only be cured by a new trial.
The other arguments are obviously meritless. The victim’s testimony provided substantial evidence of guilt. Corroboration of the victim’s testimony is not required in a rape case. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981).
The attempt by the defense to introduce evidence that the victim had sexual intercourse with a third person within five days before the incident was merely an attempt to avoid the purpose of the Rape Shield Act. Ark. Stat. Ann. §§ 41-1810.1 et seq. (Repl. 1977 and Supp. 1983). The issue arose when the defense attempted to show that the victim had lied about such intercourse. A medical witness testified that sperm might live for several days, the inference being that the sperm found in the victim might not be Stanley Lackey’s. Consent was not an issue, nor was the evidence admissible for purposes of impeachment. To allow it would simply mean that the Rape Shield Act could be circumvented. The defense was merely trying to manufacture a colloquy whereby it could introduce evidence of the victim’s prior sexual experience. The relevance of that evidence to the issues of the case was questionable and its probative value was minimal in comparison to its prejudicial character. Ark. Stat. Ann. § 41-1810. 2. The argument that the trial judge initially ruled one way with respect to the proof and later reversed himself is of no consequence. At first he allowed the victim to testify whether she had had intercourse shortly before the incident. Subsequently he ruled fhat if she answered, “no.” then no further inquiry could be made. The judge’s first ruling was right; it was not relevant evidence.
Reversed and remanded.
Hays, J., dissents.
Dudley, J., not participating. | [
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Darrell Hickman, Justice.
Walters was convicted of kidnapping and sentenced to 60 years imprisonment. On appeal he assigns two errors: a prior conviction was improperly used to enhance his punishment (he had four prior convictions), and the court improperly refused to instruct the jury on the lesser included offense of attempted aggravated robbery.
The appellant virtually concedes that our decisions in Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981), and Washington v. State, 273 Ark. 482, 621 S.W.2d 216 (1981), preclude his first argument on appeal, because they make it plain that a prior conviction can be used for enhancement regardless of when the crime is committed or the conviction obtained, prior to or after the charge in question, so long as the conviction was had before the conviction for the offense in question. However, we cannot consider the argument of the appellant. The question was not raised to the trial judge, and the record does not reflect when the offense in question occurred. This court does not consider arguments raised for the first time on appeal. Taylor v. Patterson, 283 Ark. 11, 670 S.W.2d 444 (1984).
The second argument has no merit for two reasons. The appellant did not ask for the jury to be instructed on what may have been the lesser included offense of aggravated robbery, but attempted aggravated robbery. The jury could not have, on the evidence before it, returned a verdict of guilty for attempted aggravated robbery, only kidnapping. The appellant got into the automobile of Ms. Marlene Thomas at a gasoline filling station ostensibly for a ride to his damaged motorcycle, located somewhere on the highway. Once in the car, the appellant pulled a knife and held it at Ms. Thomas’ stomach while holding the back of her neck with the other hand. He made her drive the vehicle for a distance and told her that he needed her car to get out of town. She eventually managed to open her door and fall out of the car. She flagged down a car behind her, and the appellant ran away.
Appellant’s argument focuses on the provision in the kidnapping law, Ark. Stat. Ann. § 41-1702 (Repl. 1977), which states:
(1) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of: ... .
(c) facilitating the commission of any felony or flight thereafter; ....
In this case, the State charged the kidnapping occurred in one of two ways: for the purpose of terrorizing Ms. Thomas or facilitating the commission of a felony. The jury did not have to find the kidnapping occurred in connection with a felony. The appellant cites, as analogous, cases involving capital murder where we have said the proof of capital murder necessarily involves proof of the underlying felony; therefore, the felony is a lesser included offense of capital murder, and the. appellant cannot be convicted of both. Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). However, appellant did not seek an instruction on what may have been the underlying felony of aggravated robbery, but rather an instruction on attempted aggravated robbery. The evidence was that appellant stuck a knife to the victim’s stomach, held the back of her neck and ordered her where to drive. At that point his conduct went beyond any attempt to “employ or threaten to employ physical force upon another” for the purpose of committing theft, Ark. Stat. Ann. § 41-2103 (Repl.. 1977). The jury could not have returned a verdict convicting appellant of attempted aggravated robbery. His conduct constituted the offense itself, if anything. Therefore, the appellant’s argument must fall.
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Webb Hubbell, Chief Justice.
The Arkansas Office of State Purchasing sent to forty-three potential vendors, including Appellee, Horton Printing Company, an invitation to bid on certain printing for the General Assembly, including letterhead, envelopes, and memo pads. Appellee’s bid, the only qualified bid submitted, was then presented to the Legislative Printing Committee for consideration, but the bid was rejected because it was fifty percent higher than the cost of the previous year’s contract. The Committee then asked for and received a proposal to do the printing from the Arkansas Department of Correction Prison Industries. The Correction Department’s representatives quoted a price of $15,920.54 for the letterhead, envelopes, and memo pads, an amount forty-five percent less than Appellee’s bid for the same items. The Committee designated that the printing be obtained from the Correction PrintinguShop without rebidding, and the Office of State Purchasing notified Appellee that its bid was rejected.
Appellee then filed its complaint in Pulaski County Chancery Court seeking injunctive and declaratory relief. The printing was delivered by the Prison Industries and was paid by a transfer of funds. Because the printing had been delivered, the issues before the court were limited to a declaratory judgment and were tried on stipulated facts. Appellee claimed that pursuant to Amendment 54 of the Arkansas Constitution the Office of State Purchasing could not obtain printing for the General Assembly from another state agency without competitive bids. The chancellor found that Amendment 54 mandates that printing for the General Assembly can not be obtained from Prison Industries without a competitive bidding and award procedure. We reverse.
Prior to Amendment 54 the acquisition of printing used by the State of Arkansas was limited by Article 19, Section 15 of the Arkansas Constitution which required all printing contracts be awarded to the lowest responsible bidder.
This court has considered Article 19, Section 15 in several cases. In Ellison v. Oliver, 147 Ark. 252, 227 S.W.2d 586 (1921), the court considered a contract for reprinting of the Supreme Court Reports. The legislature had appro priated funds to continue to pay for printing under a two year contract rather than advertise for bids on a new contract at a higher cost. The court held a contract not approved by the auditor as required by Article 19, Section 15 was void, and the legislature had no power to pay for the work when no bids were taken.
We interpreted “printing” in Article 19, Section 15 to permit the state to use office duplicating machines in Parkin v. Day, 250 Ark. 15, 463 S.W.2d 656 (1971).
We construed Article 19, Section 15 and Act 452 of 1973 in Gray v. Gaddy, 256 Ark. 767, 510 S.W.2d 269 (1974). Act 452 sought to limit the scope of Article 19, Section 15 by narrowly defining “printing” and “stationery” to permit procurement of some items without bidding. We held Act 452 unconstitutional insofar as it restricted the definitions of “printing” and “stationery” because Article 19, Section 15 addressed “all stationery, printing . . . .”
Following the decision rendered in Gray v. Gaddy, supra, Amendment 54 was submitted by the legislature to the voters and was passed in the General Election of 1974. Amendment 54 changed the language in Article 19, Section 15 from “All . . . printing . . . for the use of . . .” to “The printing . . . purchased by the General Assembly . . . .”
The chancellor found that Amendment 54 requires all printing “purchased” from any source be based on competitive bids, even if that source is another state agency. This interpretation of Amendment 54 would not effect any change from Article 19, Section 15. If a change occurs in language, a change was intended in the result. 2A Sutherland, Statutory Construction, § 45.12 (4th Ed., 1972); Glover v. Henry, 231 Ark. 111, 115, 328 S.W.2d 382 (1959).
When the General Assembly received the printing it ordered, funds were transferred to the Prison Industries Fund Ark. Stat. Ann. § 13-2612 (Supp. 1983). Although the act which requires state agencies under specific circumstances to obtain goods from Prison Industries calls this transaction a purchase (Ark. Stat. Ann. § 46-237 (Repl. 1977), in fact what occurs is that the determined value of the goods is transferred from one state account to another account. A purchase is a transmission of property from one person to another by voluntary act and agreement on valuable consideration. Black’s Law Dictionary 1110 (5th ed. 1981). A purchase is not a bookkeeping entry transferring money from one state account to another.
The Arkansas Constitution is a limitation upon and not a grant of power to the legislature. Wells v. Purcell, 267 Ark. 456, 464, 592 S.W.2d 100 (1979); Jones v. Mears, 256 Ark. 825, 510 S.W.2d 857 (1974). Absent the limitation contained in Amendment 54, the legislature would not be required to submit printing contracts for public bids. Amendment 54 limits only purchases by the General Assembly, not transfers of funds from one state agency to another.
After a review of the history of legislation and litigation involving Arkansas’ attempts to perform some of its own printing, and after consideration of the change in the language in Amendment 54 form “All . . . printing” to “The printing . . . purchased”, we conclude that Amendment 54 requires competitive bidding for printing purchased from commercial printers, but permits the state to produce its own duplicating and printing without submitting a bid.
Our construction of Amendment 54 gives effect to the change in the language from Article 19, § 15 to Amendment 54, and still maintains the safeguards necessary to insure economy of state funds. Our construction is also consistent with opinions from other states. Director of Department of Agriculture and Environment v. Prison Industries Association of Texas, 600 S.W.2d 264 (Tex. 1980); Associated Industries of Alabama, Inc. v. Britton, 371 So.2d 904 (Ala. 1979).
Reversed.
Hickman and Purtle, JJ. dissent. | [
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P. A. Hollingsworth, Justice.
The Arkansas Bar Association through its Interest on Lawyers’ Trust Accounts Committee petitioned this Court to establish a program permitting the collection of interest on lawyers’ trust accounts and the disbursement of such interest by the depository institutions involved to an Arkansas nonprofit corporation. The recipient corporation would then apply these funds to such tax exempt purposes which serve the public interest.
This proceeding has been before us previously when the Arkansas Bar Association in an earlier petition requested this Court to consider the establishment of an Interest on Lawyers’ Trust Accounts program (hereafter “IOLTA”). That petition was denied. In Re: The Matter of Interest on Lawyers’ Trust Accounts, 279 Ark. 84, 648 S.W.2d 480 (1983). At that time, we determined that the establishment of an IOLTA program, while a commendable and worthwhile objective, could not be approved, inasmuch as the element of client consent was not present. This comes before us as an original proceeding seeking to invoke the constitutional power of this Court to regulate the practice of law and professional conduct of attorneys in Arkansas. Ark. Const, amend. 28 (1938).
On April 9,1984, in response to the petition now before us, we issued a per curiam opinion inviting interested parties to comment in support of or in opposition to the petition. The principal responses in support have been from the original petitioners and one attorney. There was one response filed in opposition on April 18, 1984. We do not view this minimal response as a lack of interest in this subject but rather note that interested parties expressed their views in the prior proceeding.
We also note that at the present time, there are IOLTA programs in twenty-two states. Arizona, Minnesota and California have mandatory programs in which all lawyers with trust accounts are required to participate, but in the remaining nineteen states these programs are voluntary. Of these twenty-two states, there are eleven that have operational programs where interest income has been received and the figures range from a low of $1500 in Idaho (implementation date January 1, 1984) to a high of $4,900,000 in California (implementation date March 1, 1983). In three states, money has been distributed for legal services to the poor: Florida - $1,573,090; New Hampshire - $123,000; and Colorado - $28,500. While the results have been uneven due to such factors as population and implementation dates, the potential for generating funds for public service needs and projects is apparent.
The proposal before us is in essence patterned after the Florida program and provides for attorney participation on a voluntary basis.
The Internal Revenue Service, in Revenue Ruling 81,209, has determined that interest income earned on lawyers’ trust accounts under the Florida IOLTA program will not be taxable income to the clients. The key to the determination by the Internal Revenue Service is that the client cannot control by consent or veto whether his or her nominal or short-term funds may be placed by the attorney in an IOLTA account. If client consent were required, then under the long-standing doctrine of “assignment of income,” first articulated in Lucas v. Earl, 281 U.S. 111 (1930), the client would be taxed on the income. Further requirements are that the organizations receiving the IOLTA income must be tax exempt under Section 501(c)(3) of the Internal Revenue Code, and such must be used for approved charitable and public service purposes which must comport with applicable Treasury Regulations and Revenue Rulings.
With the authorization of “NOW” accounts, (interest-bearing checking accounts) there is now a viable vehicle for holding clients’ trust funds, in small amounts, or for relatively short periods of time, in an interest-bearing account which is payable on demand. The Board of Governors of the Federal Reserve System has specifically ruled in the case of the Florida IOLTA program that “NOW” accounts can be used by participants in the program.
The Code of Professional Responsibility of the American Bar Association mandates the treatment of clients’ trust funds through Disciplinary Rule 9-102 and was adopted by per curiam order of this Court on June 21, 1976, to become effective July 1, 1976. The rules mandate that clients’ funds held by an attorney must be segregated into a clearly labeled trust account unless they are fees and advances for costs and expenses. These trust account funds as to each individual client, are either nominal in amount or are to be held for only a short period of time. In those cases in which these funds are more than nominal in amount or are to be held for longer periods, the client may instruct the attorney to place the funds in an interest-bearing account for the credit of the client. Absent such instructions or a joint agreement with the client, and faced with the complex and expensive accounting problems inherent both in the investment of these funds and in the apportionment of their earnings among individual clients, attorneys have typically deposited clients’ funds in noninterest-bearing commercial bank checking accounts.
In our previous decision, we expressed concern about these funds being used to generate income for a purpose without the owner’s consent and indicated that participation in the program must be conditioned upon notice to and approval by the clients whose funds are so used. We now wish to modify that ruling for the following reasons.
At present, the earnings of funds held in trust accounts can benefit neither the attorney nor the client, but simply redound to the benefit of the depository institution. The underlying concept of the IOLTA program is that while the interest generated by each client’s trust account funds is too small to warrant payment to the client, the collective interest generated by the lawyer’s trust account as a whole may be substantial. The interest produced by the trust accounts of all practicing attorneys in Arkansas would be a very significant source of income for the benefit of public interest programs related to the legal profession. The funds in question are not now available to Individual clients, and for practical reasons cannot be made available to them. To the extent that funds do and can benefit individual clients, the proposed changes do not alter those practices.
Second, the IRS stated that the tax treatment being sought for the program would be approved so long as clients could in no way and to no degree control the creation or destiny of earnings generated on their attorney-held funds. The approval was conditioned upon the removal of all client control over the placement of funds and over any interest from which the client could never benefit either because the amounts on deposit were too small or were to be held for only a short duration.
Taking these factors into account we find that the public good will be advanced and many public benefits will flow from the adoption of a voluntary program designed to generate interest on lawyers’ trust accounts. We conclude, therefore, that the petitioner’s proposal should be adopted subject to modifications by intervening orders of this Court and subject to the following:
1. That interest be made available under the program only on a voluntary basis — that is, on the basis of willing participation by attorneys and law firms, whether proprietorships, partnerships, or professional corporations.
2. No earnings from the funds may be made available to the attorneys or firms.
3. Clients may specify that their funds are to be deposited in interest-bearing accounts for their benefit as long as these funds are neither nominal in amount nor to be held for a short period of time.
4. Client consent is not an element of the IOLTA program. However, attorneys and law firms participating in the program shall inform their clients of their participation by sending to each client a notice, in the form set out below, providing information concerning the new procedures and the uses of trust earnings.
5. Clients’ funds which are nominal in amount or to be held for a short period of time by attorneys and law firms not participating in the IOLTA program must be retained in noninterest-bearing, demand accounts.
6. The qualified recipient of interest earnings on lawyers’ trust accounts should be a newly created Arkansas nonprofit corporation to be governed by a Board of Directors comprised of the Chief Justice and two Associate Justices, five members of the lay public appointed by the Governor of Arkansas, three lawyers appointed by the President of the Arkansas Bar Association, and the President of the Arkansas Bar Association; twelve (12) in all. With the exception of the Chief Justice, the two Associate Justices and the President of the Arkansas Bar Association, terms of the directors should be on a staggered basis.
7. The qualified recipient, an Arkansas nonprofit corporation, should be required to obtain such Internal Revenue certificates of exemption from income taxes as necessary to insure that no participating lawyer or any affected client be charged with or taxed upon any interest paid on funds in a trust account which is used in participation with the program. The qualified recipient, an Arkansas nonprofit corporation, should allocate net income from this program to the following:
(a) For legal aid to the poor;
(b) For student loans and scholarships;
(c) For improvement of the administration of justice;
and
(d) For such other purposes as the Court may from time to time approve and as meet the qualifications hereinabove prescribed.
8. After a lawyer has notified the bank of intention to participate in the program in writing, the bank should transmit interest earnings directly to the authorized recipient, should make periodic reports of earnings and disbursements to the lawyer, and should be permitted to make reasonable charges for such services against the interest earnings of the respective accounts.
9. The determination of whether a client’s funds are nominal in amount or to be held for a short period of time rests in the sound judgment of each attorney or law firm.
10. This Court, after the program has been implemented for a reasonable length of time, may impose guidelines upon what constitutes funds “held for a short period of time” or funds “nominal in amount.”
It is so ordered.
NOTICE
In conformity with the Arkansas Code of Professional Responsibility, this law firm maintains an interest bearing trust account where client funds, which are nominal in amount or to be held for a short time, are deposited.
If funds belonging to you are deposited in this firm’s trust account, any interest earned therefrom will be forwarded by the depository bank to a non-profit organization who will dispense the funds to provide legal aid to the poor, to provide funds for student loans and scholarships, to improve the administration of justice and for such other programs as may be specifically approved from time to time by the Supreme Court of Arkansas for exclusively public purposes.
This law firm will receive no part of such interest and no individual will benefit therefrom unless in connection with the above stated purposes as approved by the Arkansas Supreme Court.
Florida, California, Idaho, Kansas, Maryland, Colorado, New Hampshire, Minnesota, Oregon, Nevada, Virginia, Illinois, Oklahoma, Delaware, North Carolina, New York, Hawaii, Utah, Vermont, Georgia, South Dakota, and Arizona.
Act 477 of 1977 as amended by Act 558 of 1983 identifies community action organizations serving the low income citizens of Arkansas. Three of the five lay members appointed by the Governor shall be representatives of low income persons from a list recommended to the Governor by the nineteen (19) existing community action organizations.
Proposed Notice To Client-Arkansas-8/1984 | [
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George Rose Smith, Justice.
This suit for a declaratory judgment was brought against the State Medical Board by the Arkansas State Nurses Association, a professional association whose membership includes about 100 “registered nurse practitioners,” a branch of the nursing profession created by Act 613 of 1979. Ark. Stat. Ann. §§ 72-746 (e) and 72-754 (f) (Repl. 1979). The suit seeks to invalidate the Medical Board’s Regulation 10, as an unauthorized and illegal attempt to regulate registered nurse practitioners. This appeal from the circuit court’s declaratory judgment upholding the Medical Board’s regulation comes to the Supreme Court under Rule 29 (1) (c).
Ever since the passage of Act 128 of 1913 registered nurses have been licensed and regulated by law in Arkansas. Act 613, cited above, created a new class of nurses, registered nurse practitioners, consisting of registered nurses who have gone a step farther by taking postgraduate courses in an accredited school of nursing and by being licensed as registered nurse practitioners by the State Board of Nursing. Under the 1979 act nurse practitioners are authorized to engage in the usual practices of registered nurses and also, under the direction of a licensed physician, to engage in other activities specified by the State Board of Nursing.
The Medical Board’s Regulation 10, now challenged, provides that whenever a physician employes an R.N.P. the physician must file prescribed forms with the Medical Board setting forth his own professional qualifications and experience in addition to those of the R.N.P., describing how the R.N.P.’s services are to be utilized, and listing all other physicians to whom the R.N.P. will be responsible in the absence of the employing physician. The following paragraphs in Regulation 10 are critical to this dispute:
(3) No physician licensed to practice medicine in the State of Arkansas shall employ more than two (2) licensed Registered Nurse Practitioners at any one time; nor shall such physician assume responsibility for collaborating with or directing the activities of more than two (2) Registered Nurse Practitioners at any one time.
(6) Violation of this regulation shall constitute “malpractice” within the meaning of the Arkansas State Medical Practices Act and shall subject the violator to all penalties provided therein.
Paragraph (4) of the regulation provides that an exemption from the restriction to two R.N.P.’s may be granted to a physician in case of undue hardship, after a hearing, but no such exemptions had been sought when this case was heard below.
We find the regulation to be invalid insofar as it restricts the number of R.N.P.’s that may be employed by a physician or a group of physicians and declares that a violation of the restriction is malpractice. The legislature has not even attempted to delegate to the State Medical Board the authority to define punishable malpractice. Quite the contrary, the legislature specified in the Medical Practices Act the sixteen instances of unprofessional conduct for which a physician’s license to practice medicine may be revoked or suspended. Ark. Stat. Ann. §§ 72-613 and -614. The matter of hiring too many R.N.P.’s does not fall within the malpractice statute by even the most liberal construction of its language. The Medical Board had no authority to create a non-statutory basis for the revocation of a physician’s license.
In the second place, Regulation 10 is arbitrary on its face, so clearly so that testimony about its purpose or effects could not change or justify the plain meaning of its language. The matter of arbitrariness is not specifically argued in the appellant’s brief, but when the general public’s interest is being represented by one party in a class action such as this one, we do not permit the party to waive any point that should be considered. See Parker v. Laws, 249 Ark. 632, 460 S.W.2d 337 (1970). This is necessarily the rule, for otherwise the public’s right to raise other defects in the statute or regulation might be foreclosed by the doctrine of res judicata. McCarroll v. Farrar, 199 Ark. 320, 134 S.W.2d 561 (1939). If there were any possibility that further testimony might establish the validity of Regulation 10, we would remand the case for additional proof, as is our practice. Ark. Motor Vehicle Commn. v. Cliff Peck Chevrolet, 277 Ark. 185, 640 S.W. 2d 453 (1982). Here the language of the regulation is so exact that we can conceive no such possibility.
The Nurses Association argues that the purpose of the regulation is to restrict the number of R.N.P.’s that may be licensed. In response, Dr. Verser, a member of the Medical Board for 32 years and its secretary for 30, testified that the Board was not attempting to limit the number of R.N.P.’s, only to see that they are adequately supervised. Without the regulation, he said a doctor might hire 20 R.N.P.’s in different areas of a city and let them do the practice while he was on the golf course.
We are not persuaded by the Medical Board’s protestations. As for a doctor’s neglecting his patients to go play golf, the Board already has specific authority to discipline a physician for “grossly negligent or ignorant malpractice.” § 72-613 (g). Moreover, if one doctor can adequately and effectively supervise two nurse practitioners, it is not reasonable to suppose that a group of ten doctors cannot supervise more than two equally well. The reality is that at a time when there is a need for additional medical care in some parts of the state, the effect of Regulation 10 would be to discourage registered nurses from becoming nurse practitioners, for the regulation would undeniably limit the number of jobs available to them. In a closely analogous case, the 1977 legislature created a classification called “physician’s trained assistants,” who were described by Dr. Verser as performing essentially the same functions as nurse practitioners. In the 1977 act creating physician’s assistants the legislature prohibited any one physician from employing more than two such assistants, but that limitation was not extended to groups of two or more physicians practicing together, as Regulation 10 seeks to do. §§ 72-2001 and -2014. We are not convinced that the Medical Board has the authority to adopt a restriction which the legislature did not adopt in a similar situation.
Reversed.
Hollingsworth, J., not participating.
Hickman, J., and Special Justice Julian Fogleman, dissent. | [
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P. A. Hollingsworth, Justice.
The appellant, Edward Teon Douthitt, was charged with aggravated robbery. On the day of trial, the appellant pled guilty and was sentenced to thirty years in prison with the stipulation that he serve at least one-third of the sentence. The appellant filed a motion for post-conviction relief, alleging ineffective assistance of counsel. A hearing was held, and the motion was denied. It is from that decision that this appeal is brought. We affirm.
The appellant argues that the evidence shows that his attorney advised him that he would not be sentenced to more than seven years if he pled guilty, and that he would only actually have to serve one-sixth of that time. The appellant testified at the evidentiary hearing that his attorney told him he would not receive a longer prison sentence than the others involved in the same crime received. The appellant maintains that, he was prejudiced by his attorney’s remarks because he would have taken his chances with the jury if he had known that there was any chance he would receive a thirty year term.
Counsel is presumed competent, Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982), and to prove ineffective assistance of counsel, appellant must overcome that presumption and show by clear and convincing evidence that he was prejudiced by his counsel’s actions. McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984). On appeal, we reverse the trial court’s denial of post-conviction relief only if the trial court’s findings are clearly against the preponderance of the evidence. Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984). The evidence here supports the trial court’s findings.
The record reveals that when the appellant pled guilty, he was informed by the trial judge that he was subject to a minimum term of ten years and a maximum term of fifty years and a fine of $15,000. The guilty plea statement signed by the appellant again set out the minimum and maximum prison terms and included a statement which read as follows:
I declare that no officer or agent of any branch of government. . ., nor my lawyer (emphasis added), nor any other person, has made any promise of any kind to me or within my knowledge to anyone else, that I will receive a lesser sentence, or probation, or any other form of leniency if I plead “Guilty,” except as to the recommendation contained herein on the plea agreement offered by the prosecuting attorney.
The portion of the statement where the plea and sentence recommendation is set out is blank since there was no plea agreement involved in the appellant’s plea. At his sentenc ing, the appellant was informed for the third time of the possible sentences he could receive. He refused the opportunity to make a statement before formal sentencing and, after the thirty year sentence was imposed, he made no comment.
At the evidentiary hearing on the Rule 37 petition, the appellant’s testimony about his attorney’s statements to him was as follows:
Q: I would like for you to tell the Court in your own words the events that led up to your guilty plea and your eventual sentence to (30) years?
A: Well, I asked the attorney if I had a ch— what chances I had and he said I probably didn’t have a change to beat it. And I said, “What chance would I have of — or what probably I would get if I plead guilty?” And he said, “You shouldn’t get over (7) year, no one else did.” I said, “Fine, if I can get something of that nature, well, let’s go plead guilty.” . . .
Q: . . . Did your attorney, at the time you were considering your plea, explain various options as far as minimum and maximum terms and the amount ot time that you would likely have to spend in jail if you pled guilty?
A: Well, no, uh, I didn’t uh — the only thing is that, uh, you know, the reason he said that — he said that, you know, everyone else involved — no one got over (7) year, and you shouldn’t — you shouldn’t either, you know, more than likely. And I said, “Well, fine,” you know. Of course, uh — . . .
Q: All right, Mr. Douthitt, the day that you were here for your plea, I believe that the Judge asked you if your were satisfied with your attorney and you did answer yes, is that correct?
A: Yes____
Q: Okay. You indicated that the attorney told you that more than likely you wouldn’t get any more than the others that were involved?
A: Yes.
Q: But you knew that there was some different involvement as far as you were concerned and as far as they were concerned, is that correct?
A: Yes.
Q: Okay. Were you aware of the fact that the attorney couldn’t promise or guarantee you what Judge Eddy was going to do?
A: No, I wouldn’t aware — well, I guess I was yes. He — .
Q: Did you read that, or was it read to you before you signed the Guilty Plea Statement?
A: I presume I did.
Q: Did you read this form?
A: Oh, yes; yeah, I read that. . . .
Q: Well, at the time he [the attorney] told you that, [that he would likely receive seven years] did you feel that was his guess?
A: Well, I just, uh, as I guess you’d call it an expert opinion. I guess if you call it a guess, you can.
The appellant’s attorney also testified at the hearing. He stated that the appellant asked him, “What do you think my chances are if I plead guilty?” He replied, “Well, the Judge gave Riley (7) years, and Riley is the one that actually did the robbery. And I don’t know what he would do, but you know, I don’t think it would be much more than what Riley got.” When asked if he had made any “actual promises or guarantees, ’ ’ the attorney answered, “I have not done that in (30) years, because the Judge is the only one who can pronounce the sentence; I cannot.”
The trial judge ruled against the appellant at the close of the hearing and stated:
I don’t see anything in the conduct of your defense and your representation ... or his advice and consultation that would constitute ineffective assistance of counsel in this matter and your petition will be denied. What went on between you and him goes on a lot of times between lawyer an client. You weigh your chances, you make a decision, you take your chances. And as far as I am concerned, you live with the results. No one can know beforehand what will be imposed in such a situation. And I don’t believe [the attorney] promised you that you would get no more than (7) years. I do believe seven years was mentioned, but I do believe it is normal to talk about a certain number of years anytime you enter a plea of guilty. In your instance you under guessed it.
We agree. We have stated many times that “[a] showing of improvident strategy, mere error, omission or mistake will not suffice to establish counsel’s incompetence.” McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984); Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). Here, theattorney was mistaken about the amount of time that the appellant would receive if he pled guilty. That in itself is insufficient to overcome the presumption that counsel is competent.
Furthermore, in Moore v. State, 273 Ark. 231, 617 S.W.2d 855 (1981), we held that the appellant did not prove ineffective assistance of counsel in a Rule 37 petition where the appellant failed to indicate that he was dissatisfied with his attorney on the two occasions that he had an opportunity to do so. We stated in Moore that:
In Horn v. State, 254 Ark. 651, 495 S.W.2d 152 (1973), we dealt with a similar question of whether statements by counsel concerning the possible sentence that could be received at trial amounted to ineffective assistance of counsel. There we found that the trial court had questioned the defendant on this very matter to make certain that the plea was freely and voluntarily made. We held that Horn could not claim ineffective assistance of counsel since he had the opportunity to raise this issue prior to his plea, and the same is true for Moore.
The same is also true for the appellant in this case.
Affirmed.
Dudley, J., not participating. | [
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George Rose Smith, Justice.
The appellant, Marvin Brandon, was found guilty of rape and burglary and was sentenced as an habitual offender to consecutive sentences of 30 and 10 years. The sufficiency of the evidence is not questioned, the testimony not even having been abstracted. Our limited examination of the record discloses ample substantial proof to support the verdicts.
We shall consider together the appellant’s two related arguments for reversal: (1) The trial court failed to appoint counsel for Brandon within a reasonable time, and (2) after that delay the court abused its discretion in denying counsel’s motion for a continuance on the morning the trial began.
The pertinent facts are not in dispute. The crimes were committed in Wilmot on May 28, 1983. Brandon was arrested at the scene. On May 31, a Dr. Gambel, employed by Delta Counseling and Guidance in Mondcello, apparently called the Wilmot chief of police and said that he had examined Brandon since his release on parole three weeks earlier, that Brandon was not responsible for his actions, and that he should be sent to the State Hospital for a 30-day evaluation. The prosecuting attorney learned about Dr. Gambel’s call and obtained a court order by which Brandon was sent to the State Hospital on June 13. Dr. Rosendale submitted a brief staff report finding that Brandon had no major mental disorder but was malingering, that at the time of the offense he did not lack the capacity to be criminally responsible, and that he could cooperate in his defense.
The case was to be tried on November 10. By reason of a court clerk’s oversight, C.C. Gibson III was not notified of his appointment as defense counsel until October 21, when he received notice of his appointment together with the prosecutor’s discovery material and a copy of Dr. Rosendale’s brief report. On October 28 Attorney Gibson filed a motion for continuance, alleging generally that he needed more time to prepare for trial.
The motion for continuance was among ten motions presented in chambers before the selection of the jury began. Defense counsel appeared to be well prepared. Seven of his motions were sustained. Two others, touching on trivial points, were denied and are not relied upon as a basis for reversal.
The motion for continuance was discussed at length. Defense counsel stated to begin with that he had not “had adequate time to properly and fully evaluate the psychological problems of the defendant at the time of the crime, in a manner that would be meaningful.” As the colloquy proceeded, it developed that on the Monday before the trial began on Thursday, the prosecutor had told defense counsel about Dr. Gambel’s call to the police chief. On Tuesday the prosecutor received the State Hospital’s complete file, which we think shows beyond any doubt that Brandon was competent and attempted to mislead the examining doctors into believing that he was not. On Wednesday, the day before trial, defense counsel received that complete hospital file. He discussed it with the prosecutor on the telephone that day and agreed that subpoenas for Dr. Gambel and Dr. Rosendale might be withdrawn, because the defense did not intend to rely on mental disease or defect as a defense. Attorney Gibson candidly admitted during the colloquy that he had so informed the prosecutor, adding: “The only reason I bring it up is I have not had adequate time to fully examine the validity of that defense.” The court ruled succinctly: “Now, that was a choice you made, Mr. Gibson, and I’m going to deny your motion.” That denial is the principal basis for the appellant’s argument.
The case is so remarkably similar to Russell v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977), as to be controlled by that decision. There, as here, defense counsel was not notified of his appointment until three weeks before the trial. There, as here, a motion for continuance for insufficient time to prepare for trial was denied. There the sentence was 45 years, here it is 40. We first repeated our familiar rules that the matter of continuances is within the trial court’s sound discretion and that the appellant has the burden of showing an abuse of discretion. We then went on to say, in words peculiarly applicable to the case at bar:
Assuming that Russell’s attorney did not receive notice of his appointment until November 10, he has failed to show any abuse of discretion. Even though the notice indicated that the appointment covered six different charges against Russell, as he suggests, the trial court was never advised, either when the motion was presented, or by motion for new trial, what the attorney failed to do that could have been done, or what he did that he would not have done, if he had been afforded more time. Although we could hardly find an abuse of discretion upon some basis not presented to the trial court, appellant does not even suggest here what effect the time limitation had upon his defense. The only prejudice he mentions is the 45-year sentence imposed.
In the present case Attorney Gibson narrowed the scope of his motion for continuance by saying frankly: “The only reason I bring it up is I have not had adequate time to fully examine the validity of [the defense of mental disease or defect].” Hence under our familiar rules that is the only basis for continuance now before us. It may be that on the day of trial defense counsel had not had sufficient time to evaluate the available proof of mental disease or defect. After that, Brandon testified in his own defense and appeared to be normal. During the 30 days allowed for filing a notice of appeal the defense counsel had ample time to study the State Hospital file in detail and to find out what Dr. Gambel would have testified. As in Russell, no possible additional reason for a continuance was presented to the trial court, nor “does counsel even suggest here what effect the time limitation had upon his defense.” In short, no prejudice has been shown. We do not order a new trial except for prejudicial error.
Affirmed.
Hubbell, C.J., and Purtle and Hollingsworth, JJ., dissent. | [
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P. A. Hollingsworth, Justice.
The petition for rehearing is denied. This substitute opinion is issued to replace the opinion of June 11, 1984, for clarification of issues raised by the Attorney General and appellees.
The appellees, Eddie Bush and Ernest Collard, in the course of their jobs as patrolmen for the Arkansas Highway Police, stopped a tractor-trailer truck at night on Highway 1 near DeWitt, Arkansas, to weigh the vehicle. As they finished weighing the truck, a second tractor-trailer stopped in the opposite lane to be weighed. The trucks completely blocked the travel portion of the highway. While the trucks were so stopped, the decedent, J. C. Carter, ran into the back of one of the trailers and received injuries which ultimately resulted in his death. The decedent’s executrix, the appellant Jodine Carter, brought a suit for wrongful death against Bush and Collard and against Commercial Union Insurance Co. The suit asked for the proceeds from the insurance policies both Bush and Collard had in force covering their own personal vehicles. In the alternative, the appellant sought the proceeds from the uninsured motorist insurance coverage provided to the decedent by Commercial Union.
The trial court dismissed the cause of action with prejudice as to Bush and Collard pursuant to Ark. Stat. Ann. § 13-1420 (Supp. 1981) which bars civil suits against state governmental employees. There was apparently no disposition of the case as to the insurance company. This case comes to us on appeal under Ark. Sup. Ct. R. 29(1 )(c) because it involves the construction of a statute. We reverse.
The appellees argue that the issue raised by the appellant was not raised before the trial court and is being presented for the first time on appeal. However, the appellant made substantially the same argument in a memorandum brief submitted to the trial court. Therefore, the argument is properly presented.
The appellant is also attempting to collect on an insurance policy issued to the decedent by Commercial Union. In the trial judge’s order dismissing the appellant’s complaint, no mention was made of the status of the suit as to Commercial Union. Since there is no final, appealable order in the record, that portion of the appellant’s argument which is directed to Commercial Union is not properly before us and will not be discussed.
The appellant’s principal contention, and the only one we will consider, is whether § 13-1420 operates as a complete bar to suits against governmental employees or whether it grants such immunity only to the extent that said employees do not have liability insurance coverage or to the extent that the injured party is not insured. We do not decide in this opinion whether or not the appellees were in fact negligent or whether their insurance policies would cover this situation if they were negligent. We are merely deciding whether or not the appellant can maintain an action against the appellees. We hold that she can.
The appellant would be unable to maintain an action against the officers if she was actually attempting to sue the State of Arkansas under Art. 5, § 20, of the Arkansas Constitution which provides that the State “shall never be made defendant in any of her courts.” However, we have allowed lawsuits to be filed against police officers when the matter involves a negligent action caused by the officer’s violation of a duty imposed upon him by law in common with all other people — as where a policeman violates a traffic rule and causes an accident. Kelly v. Wood, Judge, 265 Ark. 337, 578 S.W.2d 566 (1979); Grimmett v. Digby, Circuit Judge, 267 Ark. 192, 589 S.W.2d 579 (1979).
The difficulty in this case arises because of Ark. Stat. Ann. § 13-1420 (Supp. 1981) which provides:
Officers and employees of the State of Arkansas are immune from civil liability for acts or omissions, other than malicious acts or omission, occurring within the course and scope of their employment.
The trial court held that this provision precluded a lawsuit against the appellees, since they were acting in their official capacity when they stopped the two tractor-trailers. We are holding that an employee of the State.of Arkansas who had liability insurance to cover negligence in the operation of a motor vehicle can be sued directly and tne insurance company held liable for damages caused by the employee’s negligent acts, even though the employee at the time is in the performance of duties as a state employee. While this is consistent with our decision in Grimmett, the Legislature has enacted a statute pertinent to this case. The title of Act 586 of 1981 reads:
An Act to Require the Arkansas State Claims Commission to Hear All Claims Regardless of Insurance Coverage; to Provide That a Claimant Must Exhaust All Remedies Against Insurers Before Filing a Claim with the Claims Commission; to Prohibit the Claims Commission from Hearing Subrogation Claims; to Grant Civil Immunity to State Employees for Non-Malicious Acts Occurring within the Course and Scope of Their Employment; to Require the Claims Commission to Refuse Consideration of a Claim if the Subject Matter of That Claim Has Been Before Any Court of Law or Equity and That Court Has Rendered a Final Judgment or Order; and for Other Purposes.
The relevant sections applicable to this case are:
SECTION 3. If the Arkansas State Claims Commission awards damages to a claimant who has received benefits under any policy of insurance, the premium of which has not been paid by or on behalf of the claimant, the Commission shall reduce its award by the amount of insurance benefits received by the claimant. The Arkansas Claims Commission shall not reduce awards for damages to a claimant who has received benefits under a policy of insurance the premium of which has been paid by or on behalf of the claimant.
SECTION 5. Officers and employees of the State of Arkansas are immune from civil liability for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.
SECTION 8. Emergency. It is hereby found and determined by the General Assembly that the State Claims Commission does not now hear claims when the injured party has received partial compensation from an insurer; that such policy is inequitable and that this Act is immediately necessary to provide such equitable treatment.
This Act is codified as Ark. Stat. Ann. § 13-1420 et seq. (Supp. 1981).
There is another pertinent Act applicable to this case, Act 543 of 1977. The title reads:
An Act Authorizing the State of Arkansas to Pay Actual Damages Adjudged Under Certain Circumstances Against Officers or Employees of Arkansas State Government, or Against the Estate of Such an Officer or Employee; Defining the Extent of Applicability of the Act; and for Other Purposes.
The relevant sections applicable to this case are:
SECTION 1. The State of Arkansas shall pay actual, but not punitive, damages adjudged by a state or federal court, or entered by such a court as a result of a compromise settlement approved and recommended by the Attorney General, against officers or employees of the State of Arkansas, or against the estate of such an officer or employee while acting without malice and in good faith within the course and scope of his employment and in the performance of his official duties.
SECTION 3. Damages payable under this Act shall be reduced to the extent that the officer or employee has been indemnified or is entitled to indemnification under any contract of insurance.
This Act is codified as Ark. Stat. Ann. § 12-3401 et seq. (Repl. 1979).
Statutes enabling the public to seek redress against government officials, as both these statutes do, are enacted to benefit the public. We have held that such statutes are to be interpreted most favorably to the public. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). We have also held that any interpretation of a statute which avoids opportunities to evade the act is favored in the law. Sturdivant, Adm’x v. City of Farmington, 255 Ark. 415, 500 S.W.2d 769 (1973). We can observe both of these rules if we hold that § 13-1420 is not to be construed to provide governmental immunity since that is controlled by § 12-3401. Although it is a general rule of construction that a repeal by implication of the earlier statute is accomplished whenever the legislature enacts a subsequent, conflicting statute, Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964), it is also a rule that our function is to ascertain and give effect to the intent of the legislature. Berry, supra. We held in Berry that the “reason, spirit, and intention of the legislature . . . shall prevail over its letter . . .especially. . . where adherence to the letter would result in absurdity or injustice, or would lead to contradiction, or would defeat the plain purpose of the law.”
These Acts recognize the reality that state employees are being sued in our state and federal courts and being held liable for damages. The provisions of the Acts allow state employees to be held liable for negligent acts which occur during the course and scope of their employment and in the performance of official duties where an employee has liability insurance. Act 543 of 1977 provides for a way of paying claims adjudged against employees who have no insurance to pay the claim or the claims exceed the limits of the employee’s coverage. In no instance are the employees to incur any personal liability for their nonmalicious acts.
The trial court in this case held that the two state employees in question were immune from suit under Ark. Stat. Ann. § 13-1420 (Supp. 1981). Wereverse the trial court’s dismissal of the appellees from this lawsuit and remand this case for further proceedings not inconsistent with this opinion. | [
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George Rose Smith, Justice.
This is an action by the appellants, husband and wife, against Arkansas Blue Cross & Blue Shield to recover damages partly for breach of contract and partly for the tort of outrage. In response to a motion by Blue Cross the trial judge entered a partial summary judgment dismissing the complaint as to all tort claims, on the ground that Blue Cross is a benevolent nonprofit corporation that is immune from tort liability. Blue Cross has asked us to dismiss the Tulios’ appeal from the partial summary judgment because it is not a final appealable judgment. We agree and dismiss the appeal.
The original complaint was against Blue Cross as the sole defendant and sought damages for breach of contract, alleging that Blue Cross had wrongfully canceled Tulio’s medical insurance policy and terminated his membership in Blue Cross. By amendment to the complaint the plaintiffs alleged that Blue Cross’s cancellation of the policy had been accomplished in such an outrageous manner as to subject Blue Cross to compensatory and punitive damages in tort. On the day after the entry of the partial summary judgment the plaintiffs again amended their complaint by bringing in Blue Cross’s liability insurers as additional defendants and also bringing in certain officers and employees of Blue Cross, who are alleged to be liable in tort.
Inasmuch as there are both multiple claims and multiple parties in the case, the partial summary judgment is not an appealable order because it does not satisfy the requirements of ARCP Rule 54 (b), which reads:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicatingall the claims and the rights and liabilities of all the parties.
The purpose of the above paragraph, as explained in the Reporter’s Notes, is “to prevent piecemeal appeals while portions of the litigation remain unsolved.” Such a corrective provision has been badly needed in Arkansas. It is not possible to harmonize our decisions about the appeal-ability of orders when only one of several issues has been decided in the trial court. The uncertainty in our former decisions is typified by the case of Independent Insurance Consultants v. First State Bank, 253 Ark. 779, 489 S.W.2d 757 (1973), where the majority opinion, the concurrence, and the dissent stated three different points of view, with supporting citations to our own cases.
Litigation involving multiple parties and multiple issues has become more and more common now that actions in contract and in tort may be joined in a single complaint, now that strict liability is recognized, and now that nonresident defendants may be brought in under the long-arm statutes. Partial summary judgments, as in this case, are also becoming more and more common as the trial courts and counsel seek to confine the actual triál of complex litigation to the really important, controverted issues. In the situation that has developed, Rule 54 (b) should eliminate doubts about what is or is not a final appealable order, so that, as the Reporter’s Notes state, “a party will always know whether a judgment in a Rule 54 (b) situation is ripe for appeal.”
The Rule, which applies only when there are multiple claims or multiple parties, requires two things: First, the trial court must direct the entry of a final judgment as to one or more but fewer than all of the claims or parties. Whether the judgment is in fact final is apparently to be determined under Ark. R. App. P. 2. Second, the trial court must make an express determination that there is no just reason for delay, which has been construed to mean that there must be some danger of hardship or injustice which would be alleviated by an immediate appeal. Campbell v. Westmoreland Farm, 403 F.2d 939 (2d Cir. 1968). Should there be an uncertainty about the trial court’s intent, clarification may be sought during the 30 days allowed for the notice of appeal. Fundamentally, however, the policy of the rules is still to avoid piecemeal appeals, so that the discretionary power vested in the trial court is to be exercised infrequently, in harsh cases. Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d § 2653. Here the discretionary power was not exercised, for the judgment that we are asked to review does not satisfy either of the two requirements essential to its appealability.
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Richard B. Adkisson, Chief Justice.
After being sued on account for hospital medical services, appellants, John and Mary Jackson, filed a third party complaint against appellees for medical malpractice in connection with the medical service rendered by the hospital. Appellees answered by stating that the Jacksons had failed to comply with Ark. Stat. Ann. § 34-2617 (Repl. 1962) which provides for a sixty day notice of intent to sue in all actions for medical injury. Since the Jacksons admittedly had not complied with the notice statute, the trial court granted appellees’ motion to dismiss. On appeal we affirm.
The Jacksons initially ask this Court to reconsider the constitutionality of the notice statute in light of decisions from other jurisdictions. Therefore, once again it is argued that Ark. Stat. Ann. § 34-2617 is unconstitutional because it (1) denies equal protection of the laws (Ark. Const, art. II, § 3; U.S. Const, amend. XIV), (2) denies prompt access to the courts (Ark. Const, art. II § 13), (3) constitutes special legislation (Ark. Const, art, V, § 25), and (4) violates the privileges and immunities clause of both the United States (U.S. Const, amend. XIV) and the Arkansas Constitutions (Ark. Const, art. II, § 18). We considered and rejected these arguments in the case of Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983). There we held that, “[t]he statute bears a fair and substantial relation to the object of the legislation, which is to encourage the resolution of claims without judicial proceedings, thereby reducing the cost of resolving claims and consequently the cost of [malpractice] insurance.” This position was reaffirmed in the recent case of Simpson v. Fuller, 281 Ark. 471, 665 S.W.2d 269 (1984). We see no reason to reconsider these arguments.
Appellants next argue that Ark. Stat. Ann. § 34-2617 is constitutionally infirm because it violates Ark. Const, art. VII, §§ 1 and 4 which places superintending control over all inferior courts in the Supreme Court. We disagree. These sections of the Constitution do not expressly or by implication confer on this Court exclusive authority to set rules of court procedure. See Cox and Newbern, New Civil Procedure: The Court that Came in from the Code, 33 Ark. L. Rev. 1 (1979).
Appellants further argue that Ark. Stat. Ann. § 34-2617 is in direct conflict with ARCP Rule 3; therefore, the Supersession Rule which specifically supersedes any rules in conflict makes this statute ineffective. This is not so. Ark. Stat. Ann. § 34-2617 simply adds an additional step to the proper commencement of a medical injury case provided under ARCP Rule 3.
Affirmed.
Hickman, Purtle and Hollingsworth, JJ., dissent. | [
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Darrell Hickman, Justice.
The petitioners ask us to review an order of the Chancery Court of Logan County, entered after a hearing, on the sufficiency of signatures to an initiated measure to be referred to the voters of Logan County. We deny the writ.
The proposal was to repeal a county ordinance which levied a one cent sales tax. Susan Hixson, the county clerk, examined the petitions for ten days and certified that there were sufficient signatures. She found 1,291 signatures to be valid, and 667 signatures to be invalid. The Logan County Election Commission had certified that at the last general election 8,577 votes had been cast for the office of circuit clerk. By law, an initiated or referred county measure must contain valid signatures of 15% of that figure, which in this case is 1,287. Since there were four more valid signatures than required, the clerk certified the question to the election commission to be placed on the ballot in the forthcoming election.
Four taxpayers filed suit in Logan County Chancery Court to prevent the certification, alleging among other things that some of the signatures were not made in the presence of the affiant attesting to the petition. All necessary parties were joined, including the county clerk and the board of election commissioners. The petitioners asked to intervene as the real parties in interest since they represented those who proposed the initiated act.
One of the requests made to the chancery court by the intervenors was that the court order that the tally sheets of the 1982 general election be protected and counted. The allegation was that the 1982 certification of the number of votes for the circuit clerk position was incorrect; that, in fact, the figure of 8,577 votes certified was the number of votes cast in the governor’s race, and not the number cast in the circuit clerk’s race which was uncontested. The trial court refused to so order and accepted the certification as the binding figure. After hearing the testimony of the circuit clerk, which is in the partial record before us, and evidently the testimony of others not in the record, the chancery judge found twelve petitions totally null because “some or all of the signatures appearing on such petitions were not executed in the presence of the persons verifying such petitions.” He also ordered the clerk to recount two petitions which she had nullified because of forgeries. See Ark. Stat. Ann. § 17-4011(8) (Repl. 1980). No question is raised regarding this finding of the court.
According to the petitioners’ request to us, the net result of the trial court’s order was that 151 signatures were thrown out so that the petitions will fall short of the number of signatures required by 147. But the trial court remanded the matter to the circuit clerk to recount the signatures pursuant to the order, and, in the event the clerk finds an insufficient number of signatures, the proponents are allowed ten additional days in which to solicit and add signatures in accordance with Ark. Stat. Ann. § 17-4011(9) for the 1986 General Election. That order was entered October 22, 1984.
From that order comes this petition which asks us to do two things. First, we are asked to order the chancery court to get the actual tally sheets and determine the number of votes cast for circuit clerk and then certify that to be the actual number of votes cast in that race, instead of the number that was previously certified. Next, we are asked to overturn the chancellor’s ruling which threw out several petitions because all of the signatures were not actually witnessed by the affiant. We cannot say the chancellor was clearly wrong in either instance and the requested relief is denied. (The request is for a writ of certiorari, mandamus, or prohibition, and is treated as a petition for a writ of certiorari.)
The county board of election commissioners certified the votes almost two years ago and that certification is entitled to at least a presumption of correctness. Pogue v. Grubbs, 230 Ark. 805, 327 S.W.2d 4 (1959). In Rogers v. Mason, 246 Ark., 1, 436 S.W.2d 827 (1969), we held that official returns are prima facie correct. There is no evidence that there has been an election within the two years since. The election commissioners are only required to hold the ballots and certifications in custody for safekeeping for six months. In fact they are supposed to destroy them after six months. Ark. Stat. Ann. § 3-802 (Repl. 1976). The county clerk admits, however, that she does have the ballots. The evidence offered the trial court regarding the actual votes in the circuit clerk’s race was exactly the same number certified to have been cast in the race for circuit clerk, an uncontested race. The county clerk testified that the votes cast for circuit clerk were “probably not” the same number as had been cast in the governor’s race.
Considering the circumstances of the case and the evidence before us, we cannot say the trial court was clearly wrong in denying the request. First, there is the presumptive validity of the certification. Second, there is the fact that no .official or individual has kept the ballots and certifications secure from tampering who is charged by law with that duty. Third, this request was made at a very late date. The petitioners knew or should have known the number of certified votes needed to qualify an initiated act. Undoubtedly they did know because 600 more than the required number were submitted to the clerk. It was not until this lawsuit was filed that this extraordinary relief was requested. So we cannot say as a matter of law that the chancellor was wrong in refusing to allow the petitioners to invalidate the certification by the election commissioners.
The other issue before us is the trial court’s finding which threw out entirely several petitions because the affiant did not see, the attestants sign. The petitioners claim that the chancellor was wrong because in some instances the affiants merely said that they did not actually see all the persons sign in their presence. Conceding that fact, we cannot find fault with the chancellor’s action. Amendment 7 to the Arkansas Constitution provides: “Petitions may be circulated and presented in parts, but each part of any petition shall have attached thereto, the affidavit of the persons circulating th,e same, that all signatures hereon were made in the presence of the affiant. . . .” (Emphasis added).
In Sturdy v. Hall, 201 Ark. 38, 143 S.W.2d 547 (1940), we considered this very question and said:
The circulator of the petitions is the sole election officer, in whose presence the citizen exercises his right to sign the petition. The circulator must take affidavit that each signature is genuine, and if this affidavit is shown to be false, the petition loses its prima facie verity.
# * *
If, therefore, the circulator of a petition makes affidavit that the signatures are genuine which were not signed by the petitioner himself, he has made a false affidavit, and when it is shown that the affidavit attached to a particular petition is false, that petition loses the presumption of verity.
Since the trial court found the affidavits false he was not wrong as a matter of law in excluding entirely the petitions of those affiants. At that point the burden was placed on the proponenets of the petitions to accept as sufficient all the names on a petition where the circulator’s affidavit was shown to be false. No argument is made that proof exists which would require us to set aside the trial court’s decision. Therefore, a writ of certiorari would not be in order.
Writ denied.
Purtle, J., dissents.
She examined a total of 116 separate petitions, and excluded some because of forgery. She testified that she thought she excluded 20 such petitions, but the record shows 22 were actually nullified. Another three were also nullified because the verifications were not notarized. For every signature not counted, a reason was given; usually it was because there was no record of voting registration.
The legality of allowing the petitions to be used in a later election is not before us. | [
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Steele Hays, Justice.
Appellant, Willie Davis Young, was charged with the offense of aggravated robbery. There was more than substantial evidence presented to sustain a conviction including the identification of appellant by the two victims of the robbery and a signed written statement by the appellant detailing his perpetration of the crime. The appellant’s only defense was a denial of any knowledge of the robbery and a claim that he had continuously been under the influence of drugs on the day of the robbery. He was tried and convicted, found to be an habitual offender and sentenced to forty years imprisonment. Appellant argues four points for reversal, none of which has merit.
Appellant first argues that the trial court erred in not declaring a mistrial following his appearance before the jury during voir dire in prison garb. After the jury was seated appellant moved for a mistrial. The trial court denied the motion stating that it was not timely, and had it been made earlier the problem could have been corrected. The appellant argues that under Estelle v. Williams, 425 U.S. 501 (1976), the state cannot, consistent with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothing. We refused to find error on this same argument in Holloway, Welch & Campbell v. State, 260 Ark. 250, 539 S.W.2d 435 (1976), where we noted that Estelle found the defendant’s constitutional rights were violated only when he was compelled to wear identifiable prison clothing. In Holloway we found the defendants had waived their right to object as they had twice rejected the trial court’s offer to allow them to change clothes and the record did not reflect the “distinctive” and “identifiable” attire required under Estelle, but only that the defendants were dressed in matching blue trousers and blue shirts.
In this case, the uniform was unquestionably distinctive and the trial court made no offer to the appellant to change clothes, but neither of these distinctions brings this case within the proscription of Estelle. As noted in Holloway, the critical factor in Estelle which brought about a violation of constitutional rights was the compulsion to wear the prison garb. Although Estelle recognized the potentially prejudicial effect of a prison uniform, it did not find the practice inherently prejudicial absent the element of compulsion. The court noted that the judicial focus upon compulsion was due to instances frequently arising where the defendants preferred to appear in prison garments for tactical reasons.
Here, appellant waived his right against being so compelled. The right not to be attired in prison clothes can be waived as occurred in Estelle by failure to object and in Holloway by refusal of the trial court’s offer of civilian clothing. Appellant in this case waived his right by not making his objection at the first opportunity to do so. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Haight v. State, 259 Ark. 478, 533 S.W.2d 510 (1976). Appellant made no objection throughout the jury selection process and not until the jury was seated did he object. The trial court was correct in denying the motion on the basis of untimeliness. Additionally, although the appellant argues that he had no other clothes available to him, he made no showing whatsoever that he was forced to wear the prison attire, that a continuance was requested or that any request for other clothes was denied or that any such request was ever made. And as pointed out in Estelle, there was no duty on the part of the trial court to make any inquiry. “Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of the trial judges and counsel in our legal system.” Estelle at 512.
Appellant next argues that the trial court erred in not declaring a mistrial following a statement by one of the state’s witnesses concerning an offer by the defendant to enter a plea agreement. At the end of the direct examination of the manager of the drugstore that was robbed, the following exchange took place:
Q. Mr. West, is the man that robbed you with this pistol seated in this courtroom?
A. Yes, he is.
Q. Would you walk over to where he is and point him out for the jury?
A. This gentleman here.
Q. With the bandage on his foot?
A. Yes, sir.
Q. Okay, thank you. Take your seat back. There’s no doubt in your mind?
A. No doubt in my mind.
Q. Okay.
A. Plus his defense counsellors came down to the store and wanted to plea bargain —
MR. ROBERTS: Objection, Your Honor.
THE COURT: The objection will be sustained.
Q. Let’s don’t go any further with that.
THE COURT: Please disregard anything about plea bargaining. It has no place in this trial.
The appellant argues that under our case law and Ark. Unif. R. Evid. R. 410 , making evidence of withdrawn pleas and offers inadmissible, the trial court erred by not granting a mistrial. Our case law and the law generally, is clear that when such a reference is made by the trial court or the prosecutor, the prejudice is difficult to cure. Wilson v. State, 253 Ark. 19, 484 S.W.2d 82 (1972); Weinsteins’ Evidence, § 410-03, p. 410-31-32. There is less certainty however when a statement referring to a plea offer is made inadvertently by a witness who bears no official relationship to the prosecution.
Knowing the primary purpose behind this rule sheds some light on the appropriate course to follow. Weinstein, supra, states: In the case of offers to plea, the soundest rationale is similar to that under Rule 408, dealing with offers to compromise — that is to say, the criminal prosecution system depends on pleas of guilty to dispose of the bulk of cases and frank discussion of such pleas should not be discouraged. § 410-01, p. 410-19. In U.S. v. Grant, 622 F.2d 308 (8th Cir. 1980) the court notes the goal of Rule 410 as stated by the Advisory Commission on the Federal Rules of Criminal Procedure: “. . . to permit the unrestrained candor which produces effective plea discussion between the attorney for the government and the attorney for the defendant or the defendant when acting pro se.” Weinstein also says: “Where government counsel or the trial court deliberately interjects information about the existence of the withdrawn plea the prejudice would seem to be incurable. The defendant, in view of the clarity of Rule 410, is in effect deliberately being tried by means declared to be unfair. If the information is deliberately elicited by the government attorney or relied upon in his argument there is thus adequate basis for a new trial.” § 410-03, p. 410-31-32.
The primary reasons for the rule then, lose much of their force when the statement is an inadvertent one by a witness. The purposes of encouraging candor and confidence in plea negotiations and preventing the defendant from being deliberately tried by unfair means will not be undermined by such remarks. While it is desirable to protect the plea bargaining process by the avoidance of prejudice to the defendant from such statements, the drastic remedy of a mistrial may be an inappropriate remedy for the curing of any prejudice that might occur. Rather, the question in most cases would more appropriately be left to the discretion of the trial court. Weinstein states: “Unlike matters of widespread knowledge — such as the existence of liability insurance — the probability of an inadvertent or unintentional disclosure of the withdrawn plea by an unsuspecting witness is not significant. Nevertheless, the automatic retrial should not be granted if in fact it is perfectly clear the disclosure was inadvertent and reference to the plea did not affect the verdicts.” § 410-03, p. 410-32. If it is determined then that the remark was inadvertent, and limited in its prej udicial effect, the trial court should admonish the j ury to disregard the testimony, the traditional procedure to cure any prejudice that occurs as the result of a nonresponsive answer and potentially prejudicial and inadmissible testimony in general. Queary v. State, 259 Ark. 123, 531 S.W.2d 485 (1976); Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978); Roach v. State, 255 Ark. 773, 503 S.W.2d 467 (1973). We said in Queary, "The law is that when a witness, in answer to a proper question, gives a nonresponsive answer stating matter that is incompetent and inadmissible as evidence, the trial court, on motion, should strike out the answer or as much of it as is improper, and direct the jury to disregard it as evidence in the case.”
In this case, the reference to plea bargaining was clearly inadvertent, unsolicited and made by a lay witness. The statement related by the witness did not even refer to a traditional plea bargaining situation between the prosecutor and the defendant or his attorney, but rather an exchange between the defense counsel and a lay person where there would not be the expectation on the part of the defendant for the security granted by the rule in the official plea negotiations. The reference was short, the witness cut off, and the jury immediately and clearly admonished by the trial court to disregard the testimony. There is no requirement for a mistrial in this situation and the matter was properly within the discretion of the trial court. Under the circumstances of this case, there was no error in denying the motion for a mistrial and any prejudice that might have occurred was cured by the trial court’s admonition to the jury.
Appellant argues for his third point that the trial court erred in not declaring a mistrial following statements he made during cross-examination concerning the length of the sentence he would receive. The sentencing range he made reference to was that which he would be facing as an habitual offender. Appellant argues the statement alerted the jury prematurely to his habitual offender status and violated the structure of the sentencing procedure under Ark. Stat. Ann. § 41-1005 for habitual offenders and thereby denied him the right to a fair and impartial trial. The point was not timely raised and will not be considered on review. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).
As his last point appellant argues that an instruction on robbery should have been given as it is a lesser included offense of aggravated robbery and based on the evidence at trial it is clear that the jury could have found the appellant guilty of robbery. Appellant has misstated a conclusion of the facts in this case and the law. In Lovelace v. State, 276 Ark. 463, 637 S.W.2d 548 (1983) on a virtually identical set of facts the appellant raised the same argument which we rejected. We noted that there was no doubt from the evidence at the trial that a pistol was used in the commission of the offense. We cited Hill v. State, 276 Ark. 300, 634 S.W.2d 120 (1983) and said that if there is any evidence to support the giving of the instruction on the lesser included offense it must be given, but if there is no rational basis for acquitting the appellant of aggravated robbery and convicting him of the lesser offense of robbery, the lesser instruction need not be given. We found no rational basis for the lesser included offense because of the uncontrovertible evidence that a gun was used in the robbery. We said, “The appellant was guilty of aggravated robbery or nothing at all. Therefore it was not error to refuse to instruct on the lesser included offense.” The same is true in this case. The employment of a gun in the robbery was never denied, challenged or controverted. Appellant’s only defense was a denial of any memory of the crime and that he was under the influence of drugs on the day of the robbery. As in Lovelace, the appellant here was either guilty of aggravated robbery or nothing at all. As there was no rational basis for giving the instruction on the lesser included offense of robbery, there was no error in the court’s denial of the appellant’s requested instruction.
Affirmed.
Purtle, J., dissents.
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P. A. Hollingsworth, Justice.
Fred Selz and Floyd Fulkerson organized a joint venture to purchase and resell the 251 acre Clark farm for potential profits of $50,000 a year forever. The Clarks would sell for $414,000 with $120,000 down payment. In the spring of 1974, several parties were contacted about participating in this joint venture and the eventual amounts paid and percentages of ownership are as follows:
Ralph Cotham: $48,000 - 20% (Trustee for C. W. Abrams, Nash Abrams, Frank Lyon, Gene Wallace, and O. H. Wilkerson)
Bill Floyd: $24,000 - 10% (Trustee for Little Rock OBGyn Pension Trust)
Sam Strauss: $24,000 - 10% (Trustee for Lee and Bruce Thalheimer)
Fred Selz: $24,000 - 10% (Trustee for his children, his rabbi, and Floyd Fulkerson)
They are appellees in the instant case.
The remaining 50% was acquired by the appellant Harry McDermott. The appellees agreed to advance the down payment of $120,000 and appellant executed a promissory note for $60,000, which was his portion of the down payment, payable in five years at 8% to the appellees. Under the written joint venture agreement, McDermott was also to furnish front end money for engineering and road costs and was to be responsible for overseeing sales, bookkeeping and other activities necessary for development of the property. Pursuant to the agreement, all funds received except sales commissions, would be used to pay the balance of the purchase price for the 251 acres and development expenses. Fifty percent of the profits remaining after these disbursements would be paid to McDermott and the other 50% to the appellees as their interests appear above. Fred Selz, as agent for the joint venture, purchased the farm and made the $120,000 down payment. At the closing Selz and Fulkerson received a commission for the sale in the amount of $41,415. Appellant failed to pay the promissory note when due and appellees brought suit on May 1, 1981. Appellant counterclaimed that the note was usurious or that he was entitled to recover for his services rendered and to recover for the commission obtained by Selz and Fulkerson.
The trial court found that Selz and Fulkerson earned the 10% commission and the payment of the commission was disclosed to the joint venturers or ratified by them; that appellant was not entitled to recover for his services and that the note was not usurious. The case is before us pursuant to Rule 29(1 ){l).
We affirm.
We discuss the points for reversal in the order the appellants raised them.
The appellants ask us to find that the trial court erred in not holding that an undisclosed commission received by a joint venturer must be shared with the other members.
Selz and Fulkerson had an agreement with the seller of the property that they would receive a 10% commission for the sale. Selz and Fulkerson organized the joint venture to purchase then resell the land. At the closing, they received their commission. Appellant alleges that the receipt of this commission was a secret, except to Bill Floyd, and that 80% of the venturers did not know about it.
The law is clear that an undisclosed commission received by one joint venturer must be shared with the other members of the joint venture. Toney v. Haskins, 7 Ark. App. 98, 644 S.W.2d 622 (1983); Jones v. Kinney, 146 Wis. 130, 131 N.W. 339 (1911). The question in this case is whether the commission was undisclosed.
Appellant states that he did not know of the commission until the first hearing in this cause. He asserts that he did not attend the closing, and he did not receive a copy of the closing statement which disclosed the payment of the commission. The offer and acceptance also contained a clause about thp commission. Appellant signed the offer and acceptance as the buyer. Selz also signed as agent. Appellant contends that the clause was not on the offer and acceptance when he signed it and that it was typed in later. Assuming this were true, the record reflects the appellant had been in possession of the offer and acceptance with the clause long before the complaint was filed against him. He did not complain of this commission before then. The issue basically is one of credibility. We must yield to the trial court’s discretion on that issue. The trier of facts is in a much better position to observe the demeanor of the witnesses and we will not set aside the court’s findings of fact unless they are clearly erroneous. Commercial Union Ins. Co. v. Sanders, 272 Ark. 25, 611 S.W.2d 754 (1981). A.R. Civ. P. Rule 52 (a).
The second point raised by the appellants is that the trial court erroneously refused to allow appellants to introduce defendants’ exhibits 18 and 19 into evidence.
Appellants’ Exhibit 18 was a letter and an attached contract of sale to Frank Lyon concerning appellants’ oral offer to sell Lyon joint venture property. Since the contract was unsigned, appellees objected to its introduction and the trial court sustained.
Appellants’ Exhibit 19 was a contract of sale of joint venture property to Ralph Cotham based on appellants’ oral offer. Again the contract was not signed; appellees objected and the trial court sustained.
Appellant testified that he thought both Lyon and Cotham had accepted his offer. Appellant argues that the documents should have been admitted because they were relevant due to the fact that the offer and acceptance to buy the land was in dispute.
Unif. R. Evid. 901, Ark. Stat. Ann. § 28-1001 (Repl. 1979) requires the authentication or identification of a document as a condition precedent to admissibility. One means of authentication or identification is in Rule 901 (b)(1) which allows a document to be authenticated by the testimony of a witness with knowledge that a matter is what it is claimed to be.
This means of authentication was used by the appellants. Mr. McDermott testified as to the identity of these documents. As the person who drafted the documents and letter, he has the requisite knowledge of the documents. The fact that the party proponent supplied the authentication does not go to the admissibility although it may go to the weight of the evidence. United Bilt Homes, Inc. v. Elder, 272 Ark. 496, 615 S.W.2d 567 (1981). The exhibits should have been admitted.
In reviewing the record on this point, it appears that the lower court made the following finding:
The Court finds that the individual joint venturers, including McDermott, agreed that each would have a right to reserve for future purchase a lot or lots. The testimony clearly shows that any payment for such lots would not be due until the entire project was completed and an election made at that time by the joint venturer to purchase or not purchase the particular lot.
However, appellants must demonstrate that a substantial right was affected by the trial court’s excluding these exhibits. Unif. R. Evid. 103 (a), Ark. Stat. Ann. § 28-1001 (Repl. 1979). We cannot find that the trial court’s error in excluding these exhibits was prejudicial to the appellants.
The appellants’ third point is that there was no competent evidence before the lower court of an enforceable oral agreement that allowed some joint venturers to ignore their written contracts of sale and some joint venturers an option at the end of the joint venture to purchase joint venture property.
Appellant sold lots to himself and some of the appellees. These contracts of sale stated that the interest and principal were to bé paid out of the profits. When it became time to distribute the profits after the Clark note was paid, appellant deducted the principal and interest on the lots purchased by the joint venturers from their share of the distribution. Appellant applied his share of the distribution to his note payable to the appellees. The appellees objected to paying for the lots out of the profits. The trial court found:
Payment for lots reserved by the members of the joint venture are not due at this time and will not be due until the election to purchase that lot by the members of the joint venture at such time as the project is completed.
Appellants’ second and third points are intertwined and a review of the record reveals the following evidence was presented. Ralph Cotham understood that the members had the right to reserve the lots for future use. The payment could come out of the first profits or as agreed upon at the time of the election. This oral agreement was not contained in the contract. For that reason, Cotham did not sign the contract. As Frank Lyon’s financial advisor, Cotham advised Lyon not to sign the contract, which he did not.
The joint venturers had at least two meetings where the purchase of lots was discussed before the execution of the contracts. In reviewing the record, there was testimony that there was an oral agreement to the effect that the members could reserve a lot for future purchase which, upon election, would be paid for out of the profits distributed when the joint venture dissolved. This testimony is not contrary to the written contracts in that they contain the clause “or as otherwise agreed,” It is reasonable to assume this is referring to the oral agreement of the joint venturers. The contract also states that the lots should be paid for out of the profits. The oral agreement does not conflict with this because the lots would be paid for out of the profits distributed upon dissolution of the venture.
There is evidence to support the trial judge’s finding that there was an oral agreement to reserve lots. The members were not held to the terms of the contract but rather used these instruments to reserve the lots for future purchase. There is no prejudice by the erroneous exclusion of Defendant’s Exhibits 18 and 19. The error is harmless because it was not prejudicial to the rights of the appellant. Arkansas Public Service Commission v. Yelcot Tel. Co., 266 Ark. 565, 585 S.W.2d 362 (1979).
The fourth point raised by appellants is whether appellant was entitled to charge the joint venturers for his sales labor, bookkeeping labor, and other developmental expenses.
A joint venture is a relationship founded entirely upon contract. C.J.S., Vol. 48A, Joint Ventures, § 14. When a contract exists, that document will be controlling as to what was the parties’ intention. The joint venture agreement states that appellant would be responsible for overseeing sales, bookkeeping, and other developmental expenses, and the funds received from the joint venture would be used to pay for these expenses. According to the agreement, appellant was not required to perform these duties himself, but to supervise. The group had agreed to pay someone else to perform the duties.
The general rule is that no member of a joint venture is entitled to any compensation for services rendered by him for the venture unless the contract so provides. C.J.S., Vol. 48A, Joint Ventures, § 35, p. 460. In this case, the contract did not so provide. The venturers only agreed to appellant overseeing these duties in exchange for the loan. There was no agreement for appellant to perform these duties himself. He volunteered his services to the venture.
Appellant also requests reimbursement for the money he expended on shotgun shells, skeet, liquor and automobile expenses. These items were for the purpose of entertaining prospective buyers. The general rule is a party to a joint venture may, if in accord with the agreement, obtain reimbursement from the other parties for expenses incurred in the ordinary course of the enterprise. C. J.S., § 36. Appellant claims these items were part of the developmental expenses for which the appellees agreed to reimburse him.
The appellees contend that there is a proviso to the above stated rule. The expense must be one of the venture and not a contractual duty. The expenses the appellant wants to recover for are of a personal nature, and not for the benefit of the venture. The developmental expenses considered were the road and engineering costs. Appellant has been reimbursed for these expenses. Also, the appellant contracted to-oversee these duties. Thus, he may have been obligated under the contract.
The contract has a clause which requires the appellees’ consent to any expenditure appellant was to make as a condition precedent. Appellees contend that appellant did not have their consent or even ask for it as to the above claimed expenses.
The trial court’s findings were:
that Mr. McDermott is not entitled to a management fee or to any commission for sales made by him. Mr. McDermott personally drafted the agreement and the note and the language of the agreement itself clearly provides that the venture is liable only for “sales commissions paid to others.” Mr. McDermott was a party to this agreement. The testimony otherwise makes it clear that he was not entitled to any commission or management fee.
[F]rom the evidence the only expense items which the venture is required to reimburse McDermott for, both under the terms of the contract and the testimony to the court, and including development expenses or otherwise, are expenses for engineering and road construe tion, for which McDermott has been reimbursed.
We are of the opinion that the trial court did not commit error in this finding.
In their final point, the appellants ask us to find that the note was usurious. The appellees loaned the appellant the money to join the venture. At the time of the loan transaction, appellant agreed to oversee the sales, bookkeeping and developmental expenses. Appellees loaned appellant $60,000 at an interest rate of 8%. Appellant argues that the value of his services, when added to the interest rate, causes the loan to be usurious.
At the outset, it should be noted that appellant cites no authority for this alleged error in his initial brief. Without any authority as support for his argument, the issue may not be reviewable. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
This Court has held that a collateral contract entered into contemporaneously with a contract for lending and borrowing of money, where the collateral agreement is in itself lawful and made in good faith, does not invalidate the contract for the loan as usurious. This is true even if its effect might be to exact more from the borrower than the sum which would accrue to the lender from a legal interest rate. Commercial Credit Plan v. Chandler, 218 Ark. 966, 239 S.W.2d 1009 (1951).
Appellant claims his services are worth approximately $231,000 and $45,000 in expenses. Given the appellees have benefited from appellant’s services and labor, if this benefit is more than the sum of the legal rate of interest, the note would not be usurious. There is no evidence that the contract was not made in good faith and the purpose of the contract is lawful. The requirements of the above case have been satisfied, thus, the note is not usurious.
If a collateral agreement is entered into by a debtor and creditor and the creditor is benefited from it, the loan is not usurious if there is no usuriouis intent. Blalock v. Blalock, 226 Ark. 75, 288 S.W.2d 327 (1956). There is no evidence of usurious intent in the case at bar. Even if there were, appellant drafted the note, thus, he should not be allowed to benefit from his own fraud. Perry v. Shelby, 196 Ark. 541, 118 S.W.2d 849 (1938).
Affirmed.
Hays, J., not participating.
Purtle, J., dissents. | [
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Per Curiam.
Petitioner L. V. Blakely pleaded guilty in 1981 to second degree forgery. He was fined $250 and given a five year suspended sentence. The suspended sentence was revoked in 1982 and petitioner was sentenced to ten years imprisonment and fined $1,000. The Court of Appeals affirmed. Blakely v. State, CACR 83-64 (October 26, 1983). He now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37.
Petitioner contends that the trial court erred when it imposed a sentence of ten years and a $1,000 fine upon revocation of his suspended sentence because he was led to believe that the sentence upon revocation would be equal to the fine and term of suspended sentence imposed when he pleaded guilty. The legality of petitioner’s sentence was raised on appeal. Since the question was decided adversely to him, he cannot reargue it under Rule 37. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). He also raises in the petition the admissibility of his confession and the question of whether it was proper for the state to bring up his prior conviction, but these issues too were addressed on appeal and are also not cognizable in a petition for postconviction relief.
Petitioner alleges as error that (1) he was deprived of a fair proceeding by the “rush to judgment;” (2) he had made restitution and paid the $250 fine, which is probably an attack on the legality of the sentence after revocation; (3) there was insufficient evidence to revoke the suspended sentence; (4) a statement he made to a police officer should have been suppressed; (5) an unspecified exhibit was wrongfully admitted into evidence; (6) the prosecutor made the prejudicial remark that petitioner was going to prison as a pro; and (7) a witness’s testimony was incompetent. These issues could have been raised in the trial court and on appeal. Matters not raised in accordance with the controlling rules of procedure are waived, unless they present questions of such fundamental nature that the judgment is rendered void. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981). As none of the allegations made by petitioner is sufficient to render the judgment in his case void, the issues have been waived.
Petitioner makes the general statements that his sentence was imposed in violation of the constitution and laws of the United States and this State and that he was denied effective assistance of counsel, but he does not offer any factual support for the assertions. Allegations without factual basis do not justify an evidentiary hearing. Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978).
Petitioner contends finally that his plea of guilty was “unlawfully induced or not voluntarily made without complete understanding of the nature of the charge, and consequences of plea.” It is not clear whether petitioner is claiming that he was denied effective assistance of counsel when he entered his plea. If so, the burden rests on him to demonstrate ineffective assistance of counsel. United States v. Cronic, _ U.S. _, 104 S.Ct. 2039 (1984). Petitioner fails to meet this burden because he does not explain how counsel erred. A violation of the right to effective counsel can be shown only by pointing to specific errors by counsel. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). Merely stating without substantiation that the plea was unláwfully induced and involuntary does not demonstrate that counsel was ineffective or that the plea was otherwise invalid.
Petition denied.
Adkisson, C.J., Purtle and Hollingsworth, JJ., dissent. | [
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Robert H. Dudley, Justice.
The appellants refused to submit to an audit of their tax records. The Commissioner of Revenues made estimated determinations of the sales tax and income tax due which appellants contested before the Board of Hearings and Appeals of the Revenue Division of the Department of Finance and Administration. The Board upheld the commissioner’s estimate and appellants did not appeal. The commissioner then filed Certificates of Indebtedness for the delinquent taxes with the circuit clerk. Writs of execution were issued and the sheriff levied upon appellants’ property. The appellants then filed this original suit in circuit court contending that they were entitled to schedule a five hundred dollar personal property exemption under Section 2 of Article 9 of the Constitution of Arkansas. The trial court found the argument to be without merit and refused to schedule an exemption. We affirm. Jurisdiction is in this court under Rule 29 (1) (a).
Section 1 of Article 9 provides a two hundred dollar personal property exemption for persons who are not the head of a family. Section 2 provides a five hundred dollar personal property exemption for persons who are the head of a family. The Section 1 exemption is from process issued by any court “for the collection of any debt by contract.” The similar Section 2 exemption is from process issued “from any court on debt by contract.”
Both exemptions apply to debts incurred as the result of a contract. State v. Williford, 36 Ark. 155 at 160 (1880). They do not apply to a liability created by statute. Buckley v. Williams, 84 Ark. 187, 105 S.W. 95 (1907). The appellants’ debt for delinquent taxes is a liability created by statute. Ark. Stat. Ann. Title 84, Chapters 19 and 20. The debt was not incurred as the result of a contract, either express or implied, thus appellants are not entitled to the claimed exemptions.
Affirmed. | [
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Steele Hays, Justice.
Twin City Bank has appealed from a j udgment entered on a j ury verdict against it in favor of Kenneth and Vicki Isaacs for damages sustained from the bank’s wrongful dishonor of the Isaacs’ checks resulting in a hold order against their account for a period of approximately four years.
On Sunday, May 13, 1979, the Isaacs discovered that their checkbook was missing. They reported the loss to Twin City promptly on Monday, May 14, and later learned that two forged checks totalling $2,050 had been written on their account and honored by the bank on May 11 and 12. The sequence of events that followed is disputed, but the end result was a decision by the bank to freeze the Isaacs’ checking account which had contained approximately $2,-500 before the forgeries occurred. A few checks cleared Monday morning before a hold order was issued leaving the balance at approximately $2,000. Mr. Isaacs had been convicted of burglary and the initial hold on the account was attributable to the bank’s concern that the Isaacs were somehow involved with the two forged checks. The indi vidual responsible for the forgeries was charged and convicted soon after the forgeries occurred and on May 30,1979 the police told the bank there was nothing to connect the Isaacs with the person arrested. Two weeks later the police notified the bank a second time they could not connect the Isaacs to the forgeries. The bank maintains it continued to keep the account frozen on the advice of its attorneys. However that may be, the Isaacs were denied their funds for some four years. The Isaacs filed suit in Mid-June of 1979 for wrongful dishonor of their checks and wrongful withholding of their funds.
The jury awarded the Isaacs $18,500 in compensatory damages and $45,000 in punitive damages. The bank made a motion for a new trial pursuant to ARCP Rule 59, which was denied. From that denial the bank brings this appeal contending error on three grounds: 1) Misconduct of a juror at trial, 2) the trial court’s refusal to give two requested instructions, and 3) jury error in assessing excessive damages contrary to the evidence and the law.
The bank’s arguments with respect to juror misconduct and the refusal of two instructions requested by it are readily answerable. It is urged that one of the jurors, who had indicated on voir dire that she was not acquainted with the Isaacs, was seen in conversation with them during a break in the trial. At the suggestion of the bank’s attorneys the Isaacs were questioned in chambers and it was learned the juror had asked Kenneth Isaacs (who had testified earlier he lived on Sheila Drive) if he knew the Whitehead family. He answered that he thought he knew the family, but wasn’t sure. The bank cites us to Zimmerman v. Ashcroft, Admn., 268 Ark. 835, 597 S.W.2d 299 (Ark. App. 1980), but the two cases have little in common. In Zimmerman, two jurors had failed to answer on voir dire whether they were involved in litigation in which counsel for either side were participants, when in fact they were involved. Here, there is no suggestion that the juror did not respond truthfully to questions asked on voir dire. The bank insists the trial judge should have questioned the juror about the incident, rather than simply offering that opportunity to counsel for the bank, who demurred for fear of incurring resentment by the juror. But decisions of this sort must rest largely with the discretion of the trial court and there was no error in the refusal to grant a mistrial. Mistrial is an extreme remedy to be resorted to only where the error is so prejudicial that justice cannot be served by continuing. Back v. Duncan, 246 Ark. 494, 438 S.W.2d 690 (1969).
The bank submits the jury should have been instructed in accordance with tendered instruction No. 15 and AMI No. 2229, both of which were properly refused by the trial court. The first would have told the jury that the Isaacs had the burden of proving their damages, and if they failed in that burden its verdict should be for the bank. But the burden of proof was covered by AMI 202 and 203 and the instruction offered was plainly slanted toward the bank, and was not in compliance with our Per Curiam Order dated April 19,1965, that when instructions are used which do not appear in AMI, they shall be “simple, brief, impartial, and free from argument.” See Arkansas Model Jury Insturctions, 2d Ed., p. xxxi.
With respect to AMI 2229, we find no error in the refusal of the instruction. Whether the bank was entitled to any instruction or mitigation based on the evidence is arguable, but in any event the instruction presented was not appropriate to the proof. AMI 2229 deals with physical damage to real or personal property and is intended to follow AMI 2221, which must include the appropriate property damage claim covered by AMI 2222 through 2228. None of these was used by the court and the damage instruction given the jury (AMI 2201) included only losses pertaining to money wrongfully withheld, mental anguish and financial loss. See Reynolds v. Ashbranner, 212 Ark. 718, 207 S.W.2d 304 (1948); Bovay v. McGahhey, 143 Ark. 135, 219 S.W.2d 1026 (1920).
On the issue of damages, the bank maintains there was insufficient evidence to support the $18,500 award for mental anguish, for loss of credit and loss of the bargain on a house, that the award of punitive damages should not have been given at all as there was not only insufficient proof of actual damages but insufficient evidence of malice or intent to oppress on the part of the bank. The bank does not challenge the sufficiency of the evidence of its wrongful dishonor, but contends only that there was no evidence to support an award of damages. These arguments cannot be sustained.
The statute upon which this suit was based is Ark. Stat. Ann. § 85-4-402:
Bank’s liability to customer for wrongful dishonor — A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item. When the dishonor occurs through mistake liability is limited to actual damages proved. If so proximately caused and proved damages may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case.
The jury was instructed that if they found the bank liable they were to fix the amount of money which would compensate the Isaacs “for any of the following elements of damage sustained which were proximately caused by the conduct of Twin City Bank: 1) Any amounts of money wrongfully held by the defendant and remaining unpaid 2) any mental anguish and embarrassment suffered by the plaintiffs 3) any financial losses sustained by the [Isaacs].”
Initially, there can be no serious question as to certain losses: the $2,000 wrongfully withheld by the bank for four years, and the value of two vehicles repossessed because the Isaacs’ did not have access to their funds, resulting in a loss of approximately $2,200. Additionally, after the account was frozen the bank continued to charge the account a service charge and overdraft fees on checks written before the forgeries but presented after the account was frozen. The bank does not refute these damages but argues there is no showing of any financial deprivation from loss of credit or loss of the bargain on a house the Isaacs wanted to buy, and insufficient proof of mental anguish. We find, however, that in addition to the losses previously mentioned, there was sufficient evidence to sustain damages for mental suffering, loss of credit, and sufficient demonstration of some loss attributable to the inability to pursue the purchase of a home.
Mental suffering under § 4-402 of the Uniform Commercial Code is relatively new and has not been frequently addressed by other courts, but of those a majority has allowed recovery. Morse v. Mutual Federal Savings and Loan, 536 F. Supp. 1271 (Mass. 1982); Farmers & Merchants State Bank of Krum v. Ferguson, 617 S.W.2d 918 (Tex. 1981); North Shore Bank v. Palmer, 525 S.W.2d 718 (Tex. 1975); Kendall Yacht Club v. United California Bank, 50 Cal. App. 3d 949, 123 Cal. Rept. 848 (1975); and see White, Summers, Uniform Commercial Code (1980 2d ed.) § 17-4, p. 675. In general, the type of mental anguish suffered under § 4-402 does not need to rise to the higher standard of injury for intentional infliction of emotional distress. Wrongful dishonors tend to produce intangible injuries similar to those involved in defamation actions. See State Bank of Siloam Springs v. Marshall, 163 Ark. 566, 260 S.W. 431 (1924). Damages of this kind are more difficult to assess with exactness. In Wasp Oil v. Arkansas Oil and Gas, 280 Ark. 420, 658 S.W.2d 397 (1983) we noted the general rule that damages may not be allowed where they are speculative, resting only upon conjectural evidence, or the opinions of the parties or witnesses, but there are instances where damages cannot be proven with exactness. In Wasp we recognized a different rule applies when the cause and existence of damages have been established by the evidence, that recovery will not be denied merely because the damages cannot be determined with exactness. We went on to say the plaintiff in the case at bar was not trying to prove the latter sort of damage such as mental anguish as a result of defamation, but loss of income.
Decisions upholding recovery for mental suffering under the code have found injury resulting from circumstances comparable to this case. In North Shore Bank v. Palmer, supra, for example, a $275 forged check was paid from Palmer’s account. After the bank knew or should have known the check was forged, it charged Palmer with the $275 check and later wrongfully dishonored other checks. Part of the actual damages awarded was attributed to mental suffering for the “embarrassment and humiliation Palmer suffered from having been turned down for credit for the first time in his life.”
In Morse v. Mutual Federal Savings and Loan, supra, $2,200 was awarded for “false defamatory implications arising from temporary financial embarrassment.” And in Farmers & Merchants State Bank of Krum v. Ferguson, supra, the plaintiff’s account in the the amount of $7,000 was frozen for apparently one month for reasons not stated. The plaintiff was awarded $25,000 for mental anguish, $3,000 for loss of credit based on a denial of a loan, $5,000 for loss of time spent making explanations to creditors, and $1,500 for loss of use of his money. The court justified the mental suffering award because the dishonor was found to be with malice — the bank had failed to notify Ferguson that the account was frozen, some checks were honored while others were not, and the bank continued to withdraw loan payments due it during the entire time.
In this case, prior to the forgery incident the Isaacs’ credit reputation with Twin City Bank was described by the bank as “impeccable” and the freezing of their funds had a traumatic effect on their lives. They obviously lost their credit standing with Twin City, and were unable to secure credit commercially at other institutions because of their status at Twin City. The Isaacs had to borrow from friends and family, and were left in a precarious position financially. They did not have use of their $2,000 for four years. The allegation relative to the loss of a house resulted from the dishonor of an earnest money check for a home they were planning to buy, ending prospects for the purchase at that time. Though there may have been insufficient proof of loss of the bargain on the house, as the bank argues, nevertheless this evidence was admissible as an element of mental suffering. The denial of credit contributed to some monetary loss as occurred in Ferguson, supra, in addition to its being a reasonable element of mental suffering as was found in Palmer, supra. There was also testimony that the financial strain contributed to marital difficulties leading at one point to the filing of a divorce.suit. The suit was dropped but there was testimony that the difficulties caused by the bank’s action caused substantial problems in the marriage. Finally, the Isaacs lost equities in two vehicles repossessed as a result of the withholding of their funds. One of these, a new van, was repossessed by Twin City in June, 1979, before a five day grace period for a current installment had expired.
We believe there was substantial evidence to support the verdict. The jury heard the evidence of the amount wrongfully withheld, the loss of two vehicles, credit loss through loan denials, loss of the use of their money for four years, the suffering occasioned by maritial difficulties, the inability to acquire a home they wanted, and the general anxieties which accompanied the financial strain. We recognize that our holding today presents some conflict with pre-code law by allowing recovery without exactness of proof as to damages. In State Bank of Siloam Springs v. Marshall, supra, a suit based on the predecessor to § 85-4-402, we stated that the plaintiff must show the facts and circumstances which occasioned the damage and the amount thereof. However, Marshall itself recognized the nature of the damages in this action, and § 85-4-402, although similar to its predecessor, has additional language which impliedly recognizes mental suffering and other intangible injuries of the type noted in Wasp, supra, as recoverable under this statute. See White, Summers, supra § 17-4, p. 675. To the extent that exactness in proof is not required, the law as stated in Marshall is displaced by § 85-4-402.
The bank’s objection to the award of punitive damages is threefold: a) The instruction on punitive damages was in accordance with AMI 2217, which is intended for use in negligence cases and not applicable here; b) there was not evidence that the bank acted intentionally or with malice; and c) the verdict of $45,000 was excessive. However, wt address only the question of the excessiveness of the verdict as the other points were not raised in the trial court by objection to the instruction. Crowder v. Flippo, 263 Ark. 433, 565 S.W.2d 138 (1978); Dodson Creek Inc. v. Walton, 2 Ark. App. 128, 620 S.W.2d 947 (1981); ARCP Rule 51.
In Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961), we noted the elements that may be considered in assessing the amount of punitive damages, recognizing that the deterrent effect has some correlation to the financial condition of the party against whom punitive damages are allowed. In view of the circumstances in their entirety presented by this case, we cannot say the amount awarded was grossly excessive or prompted by passion or prejudice. See First National Bank v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984); Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972); Volger v. O’Neal, 226 Ark. 1007, 293 S.W.2d 629(1956).
The judgment is affirmed.
Hollingsworth, J., not participating. | [
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Robert H. Dudley, Justice.
Appellee, James E. Cheek, Jr., retired as fire chief after twenty-three years of service with the El Dorado Fire Department. A retired fireman is entitled to a monthly retirement benefit equal to one-half of the salary attached to the rank held at the time of retirement. Ark. Stat. Ann. § 19-2204 (Repl. 1980 and Supp. 1983). In addition, a retired fireman is entitled to a lump sum payment for a limited amount of unused accumulated sick leave. Ark. Stat. Ann.§ 19-1720 (Repl. 1980 and Supp. 1983). Appellee asked the Board of Trustees of the El Dorado Firemen’s Relief and Pension Fund to consider the lump sum payment for unused accumulated sick leave as part of his salary in fixing the amount of his monthly retirement benefit. The board refused and appellee filed suit for declaratory judgment. The trial court ordered the board to include the lump sum payment for sick leave in determining the amount of the retirement benefit. We reverse. Jurisdiction is in this court pursuant to Rule 29 (1) (c) since the case involves the interpretation of an act of the General Assembly.
The statute creating the monthly retirement benefit, Ark. Stat. Ann. § 19-2204, provides that a retired fireman is entitled to be paid a monthly pension “equal to one-half of the salary attached to the rank” held at retirement. The statute creating the lump sum payment for unused accumulated sick leave, Ark. Stat. Ann. § 19-1720, provides that it is payable only upon retirement. Obviously, a sum payable only upon retirement is not a part of the regular salary attached to the rank.
The statutory language providing that a retired fireman is "entitled to be paid a monthly pension equal to one-half of the salary attached to the rank” was first used in Section 4 of Act 491 of 1921. However, neither sick leave nor lump sum payment for unused accumulated sick leave was statutorily provided for firemen until 1971. See Act 241 of 1971. Ark. Stat. Ann. §§ 19-1718 and 19-1720 (Repl. 1980). Thus, the General Assembly could not have intended to include payment for unused accumulated sick leave in its 1921 concept of the word "salary.” Since the statutory language has remained the same since 1921, we can only conclude that the legislative intention has remained the same. The word “salary,” as used in the Firemen’s Relief and Pension Fund Act, does not include payment for unused accumulated sick leave.
The appellee alternatively contends that, even if the statute does not provide that the lump sum payment constitutes salary, he has a vested right to have it included as salary since it was done for others in the past and was a factor in his continued employment. The argument is without merit because one cannot gain a vested retirement right from an unauthorized administrative procedure which is contrary to statute. Board of Trustees of the State Police Retirement System v. Halsell, 271 Ark. 815, 610 S.W.2d 881 (1981).
Reversed. | [
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Steele Hays, Justice.
Appellant, John Campbell, was charged and convicted of five separate crimes, receiving a sentence of life imprisonment for one and a total of fifty years for the other four, the sentences to run concurrently. He filed a Rule 37 petition for post-conviction relief alleging ineffective assistance of counsel and failure of the trial court to reject his guilty plea. The trial court denied the petition for relief and we affirm.
Appellant’s allegations arise from a hearing on March 23, 1982 which resulted in his changing a not guilty plea to one of guilty on all charges. He had originally pleaded not guilty to the first four charges on January 8, 1982, by reason of mental disease or defect. He was then examined by a psychiatrist from Ozark Mental Health Center and found to be without psychosis and competent to stand trial. While awaiting trial on these charges, he was charged with second degree battery involving an incident in the county jail. At the Rule 37 hearing appellant’s attorney testified he’d had a number of discussions with appellant after the arraignment on the first four charges and although he tried to dissuade him, the appellant told him he wanted to plead guilty. The attorney was aware that appellant had been previously hospitalized in Texas for mental disorders and in one of their last meetings told appellant he would ask the court to order additional mental evaluation. Appellant still wanted to plead guilty, but told his attorney to make the motion and if the Judge would not agree to send him to the hospital, he would enter a guilty plea. At the March hearing the attorney made a request for further evaluation on the grounds of incompetency to stand trial. The court denied the request and told the attorney he could file a motion on that point but did not “see any reason to send him on down there.” The attorney then told the court the appellant wanted to change his plea in regard to all the charges. During the sentencing phase, the attorney presented information on appellant’s prior mental problems in Texas as a mitigating factor.
The appellant contends that, as the attorney had information about the appellant’s prior history of mental problems, he was under a duty to pursue the leave granted by the court to file a written motion for further evaluation on those grounds. Additionally, he argues, having some question of the appellant’s competency, the attorney should have prevented the appellant from pleading guilty.
The issue here is whether the plea was entered intelligently and voluntarily with the advice of competent counsel. The appellant has the burden of showing that the assistance or advice he received was not within the range of competence required of lawyers in criminal cases, and there is a presumption that counsel is competent that must be overcome. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982). We will reverse the denial of a Rule 37 petition only if the findings are clearly against the preponderance of the evidence. Thomas v. State, supra; Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981).
Under the circumstances of this case we do not find any merit to appellant’s allegations. The Texas reports stated that appellant was not psychotic and the attorney testified in essence that were he to draw attention to the reports, contrary to appellant’s assertion, it would probably confirm the previous evaluation on the appellant and would not be helpful in trying to obtain additional information. The attorney’s failure to pursue further evaluation does not fall outside the range of competence expected of lawyers in criminal cases. First, the attorney’s action in not filing the motion can be viewed as strategy and we have consistently held that matters of trial strategy open to debate by experienced counsel are not grounds for relief under our postconviction rule. McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984); Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). Second, in two other cases where appellants argued similarly that the attorney should have pursued an insanity defense or presented additional evidence of insanity in the sentencing phase, the trial courts ruled as was done here. See Thomas, supra; Henderson v. State, 281 Ark. 401, 664 S.W.2d 451 (1984). The court in Thomasioxmd that evidence already presented was sufficient to establish that there was no insanity defense and in Henderson that the appellant did not demonstrate how the additional evidence would have negated findings already presented. ,In this case, more substantial evidence than that in Thomas was presented to show competency and the appellant does not show how the evidence of his prior history in Texas would have negated the findings of the evaluation that had already been presented. Absent a showing of prejudice, a claim of ineffective assistance of counsel will not prevail. Strickland v. Washington, - U.S. -, 104 S.Ct. 2052 (1984).
As to appellant’s second point under this argument, he recognizes that under A.R.Cr.P. 25.2 the decision to enter a guilty plea ultimately rests with the defendant, which is what occurred here. The attorney had sufficient discussions with the appellant to learn that appellant wanted to enter a guilty plea and never testified that he thought appellant incompetent. It would be plainly contrary to Rule 25.2 for him to have resisted the plea which appellant wanted to make.
Appellant’s second argument is that the trial court, aware of appellant’s prior history of mental problems, erred in failing to reject the guilty plea. For the reasons already stated, the court was under no duty to halt the proceedings because of questionable competency of the appellant. His competency had already been determined and there was nothing in the information relayed to the court that contradicted any of the findings by the evaluation already presented or that would give the court cause to question the appellant’s competency.
The judgment is affirmed. | [
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Darrell Hickman, Justice.
The appellant was convicted of four counts of aggravated robbery and sentenced to thirty years on each count, the sentences to run consecutively. The only argument made on appeal is that the trial court was wrong in permitting the victims to make in-court identifications, because they were inherently unreliable. We find no merit in this argument, and Banks’ conviction and sentence are affirmed.
The four counts of aggravated robbery were made because Banks and another man robbed four women about 11:30p.m. on July 14, 1983, near the Excelsior Hotel, Little Rock, Arkansas. The women left the hotel and, as they were approaching their vehicle that was parked on a nearby street, they saw two men sitting on the curb in front of the car. As they reached the car, the men pulled bandanas over the lower part of their faces and one of the men grabbed one of the victims, pushed her into the car on top of another woman, who was in the driver’s seat, and demanded their purses at gun point. The women finally surrendered their purses and the men fled on foot. The matter was reported to the police and it was investigated. A man named Johnny Henderson reported to the police that he was an eyewitness to the incident and was acquainted with the defendant Banks and identified him as being one of the men. The next day the women went to the police station to make a statement and view photographs of possible suspects. The defendant’s picture was not among the photographic spread. One victim thought she could identify one of the men. The women could not give the police very accurate descriptions of the men who robbed them. Six days after the robbery the women were asked to view a lineup. Each woman viewed the lineup separately and three of them made positive identifications of Banks as being one of the men who robbed them. There was testimony that one of the police officers told one of the victims that she had identified a man who was also picked by an eyewitness. There is no evidence that the police prompted the victims in any way before they viewed the lineup.
Whether an in-court identification meets constitutional standards is essentially for the trial court to decide. We reverse the trial judge only if his decision is clearly erroneous. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983); Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). The question is whether or not the in-court identification has been tainted impermissibly by a previous suggestive lineup. We cannot say in this case that the court was clearly wrong in allowing the in-court identification to go to the jury. There is nothing in our judgment to suggest that the lineup was so unfair as to taint the later in-court identification nor that the trial court was wrong in ruling that the in-court identification was reliable. The complaint as to the lineup is largely to the officer’s remark to one of the women that she had identified the same man an eyewitness did. The testimony was conflicting as to whether or not this statement was made. We have held that such a comment, if it was in fact made, is improper but, when made after the selection, is not prejudicial. Perry v. State, supra. Furthermore, even when a pretrial procedure is improper, the in-court identification is improper only if, under the totality of the circumstances, the judge determines there is a likelihood of misidentificadon. Perry v. State, supra. Factors for determining reliability of the in-court identification include whether the victims had sufficient opportunity to view the defendant, the time lapse between the crime and the identification, the level of certainty of the identification, and the accuracy of the prior description of the criminal. Hogan v. State, 280 Ark. 287, 657 S.W.2d 534 (1983).
The main argument of the appellant as to reliability is that the women gave poor descriptions arid they were not in a position to view these defendants when they were robbed because most of them paid no attention to the men sitting on the curb until after they had raised the bandanas over a portion of their faces. Of course, people do not expect to be robbed and the descriptions by victims are often vague and indefinite. However, these victims were in a position to view their assailants; three of them said they could positively identify Banks and did so in a lineup and later in court. There is no reason to disturb the trial court’s ruling and the judgment is affirmed.
Affirmed. | [
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Richard B. Adkisson, Chief Justice.
On July 3,1982, at about 12:30 a.m. appellee, Earl Leo Price, age 53, drove onto the premises of the American Motel in Magnolia, Arkansas, to air up a tire on his truck. Appellant, Floyd Pursley, age 59, lived on the adjoining property and was sitting under his carport talking to his wife when Price drove up. Pursley had been drinking. Pursley yelled to Price, “Hey man, how about turning your lights out? You’re blinding us over here. ’ ’ Price proceeded to air up his tire. Pursley repeated his request, but when Price failed to respond, he went to his pick-up and got his “varmint gun’’ out. As Price was driving off, Pursley fired several shots at his truck. Price stopped, fell in the seat (because he thought he was dead), crawled from his truck to the motel, and telephoned the police.
Price filed suit, and the jury returned a verdict for damages to the truck in the amount of $367.28) for mental anguish damages in the amount of $20,000.00, and for punitive damages in the amount of $30,000.00. On appeal Pursley argues that the trial court erred in admitting testimony as to his reputation for violence when drinking.
The record reflects that Pursley testified on direct examination that he had never shot at anybody and that he had never had any problem other than a speeding ticket in his life. The police officer who investigated the altercation testified for Price in rebuttal that Pursley had a reputation in the community for violence when he was drinking. When a proponent opens the door to a line of questioning, the opposing party may fight fire with fire by introducing rebuttal testimony on that issue. McCormick, Handbook of the Law of Evidence § 57 (1972). By testifying to his past exemplary conduct Pursley thereby opened the door to the admission of rebuttal evidence, otherwise inadmissible, concerning his reputation for peacefulness. We do not hold or imply that Ark. Unif. R. Evid. 404 is abrogated, but we conclude that under the circumstances of this case, the trial court did not abuse its discretion in admitting the testimony.
Appellant further argues that the reputation testimony was produced without a proper foundation. Appellant’s timely objection to the testimony on this ground was sustained. But appellant failed to move to strike the testimony; therefore, the issue is not preserved for appeal.
Appellant last argues that the jury verdict for mental anguish damages in the amount of $20,000.00 and for punitive damages in the amount of $50,000.00 was so great as to demonstrate passion and prejudice on the part of the jury and to shock the conscience of this Court. We do not agree. Appellant’s conduct was completely unacceptable and repugnant to normal response in civilized society. This Court has previously held that the amount of damages growing out of mental anguish is ordinarily left to the determination of the jury. W.U. Tel. Co. v. Blackmer, 82 Ark. 526, 102 S.W. 366 (1907). Punitive damages constitute a penalty and must be sufficient not only to deter similar conduct on the part of the same tortfeasor, but they must be sufficient to deter any others who might engage in similar conduct. Matthews v. Rodgers, 279 Ark. 528, 651 S.W.2d 455 (1985).
Affirmed.
Purtle, J., dissents. | [
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P. A. Hollingsworth, Justice.
This is a divorce case. Once again the Court must interpret our statute governing the division of property in divorce cases. Ark. Stat. Ann. § 34-1214 (Supp. 1983). The basic question here is whether we recognize the appellee’s “enhanced business career” as marital property under our present statute.
When the parties married in 1964 appellant, Judith Lynn Meinholz, had a bachelor of science degree and appellee, Ludwig Hugo Meinholz, had recently immigrated to the United States from Germany. While the appellee was not completely fluent in English, he was competent enough with the language to acquire several jobs. He is presently employed by Riceland Foods in an executive capacity and earns approximately $47,000 a year. From the time of the marriage until the divorce in 1982, the appellant generally took care of homemaking and the appellee took care of moneymaking. The sole exception was a period in 1965 when the appellant taught school for a year when the couple lived in New Jersey. They lived together for eighteen years, during which they had two sons, ages now 16 and 13.
In April 1982, Ludwig Meinholz sued for divorce; his wife filed a counterclaim also seeking a divorce. The decree granted a divorce to Mrs. Meinholz; ordered that the family home be sold when the children reach majority and the proceeds, divided; directed Mr. Meinholz to pay alimony until January 1, 1990, and child support for the minor children; divided the personal property, including two IRA accounts, and a profit sharing pension plan for Mr. Meinholz at Riceland Foods; and did not find Mr. Meinholz’s “enhanced business career” marital property subject to distribution under our present statute. We agree with the chancellor on failing to recognize the “enhanced business career” as marital property. However, we reverse and remand on the other points discussed by us and order the chancellor to fashion a decree not inconsistent with this opinion. The appeal comes to us under Ark. Sup. Ct. R. 29(l)(c).
The appellant’s first argument is that the chancellor erred in failing to recognize the appellee’s “enhanced business career” as marital property subject to distribution. Her testimony on this point indicates she gave up her ambition to be a counselor and instead became a homemaker because she and Mr. Meinholz agreed they were a partnership working toward the common goal of establishing his career. There was also testimony that she has a degenerative disc disease which prevents her from doing certain jobs that require extensive manual labor.
The appellant analogizes her situation to the “professional license” cases where one spouse works while the other obtains a professional degree and few assets are acquired so that when the couple divorces an inequity has arisen since the professional spouse’s increased earning potential no longer inures to the benefit of the other spouse. She maintains that the increased earning capacity is the same whether such capacity was enhanced by increased education or increased skills and asks this Court to recognize such capacity as marital property.
The appellee argues that he never prevented his wife from seeking her separate educational goals or from working after they were married. Furthermore, he maintains that his wife is a bright, articulate woman with a college degree and is physically and mentally equipped to work.
The appellant cites several professional license cases in support of her argument. In Inman v. Inman, 578 S.W.2d 266 (Ky. App. 1979) the court said, “[T]he husband’s increased earning power, represented by his degree, should indeed be counted as marital property where there is no accumulated marital property and the spouse who subsidized the degree is ineligible for maintenance.” Here, the appellant is eligible for maintenance and there is accumulated marital property. Furthermore, the Inman court said that one important factor to consider in determining whether a marital property classification is proper is to consider the extent to which the nonlicense-holder has already or otherwise benefited financially from his or her spouse’s earning capacity, or is eligible for maintenance. Both of these factors are important in this case in that here, the appellant has been married to the appellee for eighteen years and has already reaped benefits from her husband’s increased earnings. This is unlike the typical professional license case where the divorce occurs at the point where the increased earnings begin. Also, as already mentioned the appellant here is eligible for maintenance and in fact has been ordered to receive it in the form of alimony by the trial court. On the extent of Mrs. Meinholz’s disability, there was conflicting testimony. Where there are conflicts in testimony, we defer to the judgment of the trial judge as to the credibility of the witnesses because of the superiority of his position in making that determination. Weber v. Weber, 256 Ark. 549, 508 S.W.2d 725 (1974).
Appellee does not contest the appellant’s third and fourth points on appeal. He concedes that when the house and the remaining marital property are sold, the television set in his possession should also be sold at that time. Similarly on point four, the appellee agrees that a Singer sewing machine, six kitchen chairs, a microwave oven, and a used recliner chair were gifts or property owned by the appellant prior to the marriage and are therefore within the exception to marital property. On remand, the chancellor will include these agreements in his decree.
This appeal involves another distribution problem on which we have issued an opinion recently. The appellant is arguing that the chancellor erred by awarding Mr. Meinholz his Riceland Foods pension plan. In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), this Court stated:
We now realize that we have inadvertently failed to recognize the new concept “of marital property,” created by Act 705 of 1979, as amended. That statute defines marital property as all property acquired by either spouse subsequent to the marriage with exceptions not important here. Section 34-1214 (Supp. 1983). That law directs that all marital property be distributed equally unless the court finds that division inequitable . . .
Under the recent holdings of the Supreme Court, spouses must be treated equally in the absence of a valid reason for making a distinction. Our 1979 law was enacted pursuant to that mandate and must be construed in harmony with that intent. It is easy to demonstrate that the legislative purpose will be frustrated if controlling differences are drawn between pensions vested and currently payable and those that are vested but payable in the future.
Our record in the present case is sparse on this point and the Riceland Foods pension plan is not an exhibit. However, it is clear that Mr. Meinholz’s pension rights are vested in that he will be entitled to enjoy the financial benefits in or about 2003 when he reaches sixty years of age, whether or not he continues in his present employment. At the time of trial, there was $7,959 in this fund.
We agree with the view affirmed by the New Jersey Court in Kikkert v. Kikkert, 438 A.2d 317 (1981):
It [the pension] is the result of direct or indirect efforts expended by one or both parties to the marriage — it is additional compensation for services rendered for the employer and a right acquired during the marriage. Hence, equitable considerations mandate its inclusion for distribution where, as here, the employee has already qualified for benefits and the other spouse, during the marriage, has foregone enjoyment of that additional compensation represented by the cost of the plan whether or not it requires employee contributions. Each spouse had the same expectation of future enjoyment with the knowledge that the pensioner need only survive to receive it.
Similarly with the IRA accounts, the amounts are known or easily attainable and those benefits have vested. There should be no distinction between appellee’s and appellant’s accounts. They are both marital property and should be included for distribution.
The appellant’s next contention is that the trial court erred by not requiring the parties to share equally in all repairs and maintenance to the home. The chancellor’s decree is ambiguous as to this point. In Paragraph 1, he states that Mrs. Meinholz shall be responsible for all utilities, routine maintenance and repairs and shall keep the house in a condition at least as good as it now exists. In the next section under that paragraph, he states that the parties shall jointly share the expense of taxes, insurance, and other routine maintenance. We held in Strang v. Strang, 258 Ark. 139, 523 S.W.2d 887 (1975), that the husband was ordered to pay half of any major repairs necessary in the upkeep of the homeplace because “[t]he 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.” On remand, the chancellor will modify the decree to provide that the parties share equally in the costs of all repairs and maintenance to the home.
The other issue raised by the appellant that we will discuss is the matter of attorney’s fees. Ark. Stat. Ann. § 34- 1214 (Supp. 1983) provides that all marital property shall be distributed one half to each party unless the court finds such a division to be inequitable in which case the court must state its basis and reasons for not dividing the marital property equally. We view the purpose of this statute as making the parties equal. We find no compelling reason to pay the wife’s attorney’s fees automatically unless the chancellor finds it to be Suitable. We will not disturb the trial court’s finding absent clear abuse. We find no such abuse here.
The chancellor and the parties did not have the benefit of our holding in Day when this case was heard. Equity and fair play require a remand to the trial court. Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984). The chancellor can correct other errors alleged by the appellant on remand. We reverse and remand for further proceedings by the chancellor and for the decree to be modified consistent with this opinion.
Affirmed in part; reversed in part and remanded.
Hickman, J., concurs in part, dissents in part.
Purtle, J., dissents in part.
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Per Curiam.
Petitioner entered a negotiated plea of guilty in July, 1983, to four counts of aggravated robbery, theft by receiving and a felon-in-possession-of-a-firearm charge. He was sentenced to a total of 40 years in prison on the aggravated robbery counts and four years on the theft and felon-in-possession charges. Soon thereafter petitioner filed a petition to vacate the pleas under A.R.Cr.P. Rule 37. An order was entered denying the petition on October 7, 1983. No appeal was taken.
Petitioner next filed a petition to withdraw the pleas pursuant to A.R.Cr.P. Rule 26.1. The trial court denied the motion, stating that motions pursuant to Rule 26.1 must be made prior to sentencing. The court also said that if the petition were considered as a petition to proceed under Rule 37, petitioner had already had one such petition denied and the second petition was denied for the reasons stated in the order denying the first petition. Petitioner mailed a notice of appeal of the denial of the Rule 26.1 petition to the circuit clerk but it did not reach its destination until three days after the 30 days for filing a notice of appeal had elapsed.
Petitioner now seeks a belated appeal. He contends that there is a "grace period” which grants an allowance of time for items to be transported in the mail. He also contends that the notice of appeal would have been mailed earlier if he had been afforded competent legal advice.
The Rules of Appellate Procedure, Rule 4 (a), provides that a notice of appeal shall be filed within 30 days of the entry of the order of judgment. There is no grace period as petitioner contends. Appellants, even those who proceed pro se, are responsible for following the rules of appellate procedure. Ignorance alone does not excuse an appellant of his responsibility to conform to the rules. Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); Grain v. State, 280 Ark. 161, 655 S.W.2d 425 (1983).
We also note that a petitioner whose Rule 37 petition is denied is not entitled to a second such petition unless the first was denied without prejudice. Rule 37.2 (b). Post-conviction petitions which raise grounds for relief cognizable under Rule 37 are considered petitions to proceed under Rule 37, regardless of the label given them by the petitioner. The trial court therefore could simply have dismissed the Rule 26.1 petition as being a subsequent Rule 37 petition.
Motion denied. | [
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George Rose Smith, Justice.
The plaintiff, Nettie Pauline Dortch Davis, and the defendant, Virginia Dorazio, are sisters who are tenants in common of certain lands inherited from their father, Robert L. Dortch. In August, 1978, Mrs. Davis brought this partition suit in the Lonoke Chancery Court with regard to 110 acres of the common property, the complaint alleging that the land could not be divided in kind and asking that it be sold. Mrs. Dorazio’s answer admitted the cotenancy but asserted that the parties were in such unequal bargaining positions that a partition by sale would be oppressive.
After a hearing on May 24, 1979, the chancellor entered a decree on September 5, 1980, ordering partition and appointing three commissioners to divide the land in kind if possible and, if not, to report back to the court. After a long delay the commissioners reported on June 3, 1983, that the 110 acres cannot be divided in kind for a number of reasons, one being that there is a large house on the land. The chancellor approved the report on the same day and ordered a sale. Mrs. Dorazio, however, filed a pleading objecting to the proposed sale, asserting that the commissioners’ report was merely advisory, and asking that she be given an opportunity “to present evidence to refute the Report of the Commissioners as is her right.”
Chancellor Jim Hannah set the matter for a hearing on July 21, 1983. Counsel for the plaintiff appeared with the commissioners, prepared to defend their finding that the 110 acres cannot be divided in kind, but opposing counsel offered no testimony to the contrary, despite the request for an opportunity to do so. Instead, counsel merely stated, with no supporting proof or offer of proof, that the 110 acres comprised only part of the land owned in common by the two sisters, and “our position is that if partition is required, we want and we think we are entitled as a matter of law the entire acreage owned as tenants in common be partitioned, and that’s simply our position today.” The trial judge expressed his inability to understand why the point had not been raised four years earlier. His ensuing order found that the defendant had been given the opportunity to present evidence and had declined, denied the motion to stay the sale, and set a new date for the sale. The defendant filed a notice of appeal to the Court of Appeals and obtained a stay in the trial court by making a supersedeas bond.
When the record was filed on the last day of the full seven months allowed by law, the appellant filed with it a motion to remand the case for a new trial, on the ground that a transcript of the hearing held in June, 1979, could not be obtained. In opposing the motion to remand, the appellee argues that notice of appeal should have been given within 30 days after partition was ordered in September, 1980. The appellee has also filed a motion to affirm as a delay case. The Court of Appeals certified both motions to us, as involving the construction of procedural rules and statutes. Rule 29 (l)(c).
Both motions must be denied.
First, the motion to remand. The notice of appeal was timely, for the 1980 order appointing commissioners was not a final order. Hence the notice of appeal filed in 1983 brings up for review earlier interlocutory orders in the case.
Even so, nothing would be accomplished by a remand. It must be emphasized that an admitted cotenant has an absolute right to a partition of the property. Ward v. Pipkin, 181 Ark. 736, 27 S.W. 2d 523 (1930). Mrs. Dorazio originally opposed the partition because the parties’ bargaining positions were supposedly unequal, but we have said that a party’s absolute unconditional right to partition cannot be defeated by a showing that a partition would be inconvenient, injurious, or even ruinous to an adverse party. Schnitt v. McKellar, 244 Ark. 377, 389, 427 S.W. 2d 202 (1968). Hence if any proof about the parties’ positions was actually introduced at the 1979 hearing, it could not be controlling.
Alternatively, the 1979 hearing might have touched upon the other issue raised by the answer — whether the 110 acres can be divided in kind. Mrs. Dorazio has certainly had her day in court on that issue. She requested a hearing for the express purpose of refuting the commissioners’ finding and then declined to offer proof on the subject. She is not entitled to still another opportunity to explore that issue.
Finally, there has in fact been no proper showing of any need to remand the case for a new trial. Counsel argue, on the basis of our holding in Holiday Inns v. Drew, 276 Ark. 390, 635 S.W. 2d 252 (1982), that a new trial is required when the record cannot be prepared (in that case because the court reporter’s equipment malfunctioned). Our procedural rule, however, contemplates that when, as here, a transcript is unavailable, the appellant may prepare a statement of the evidence “from the best means available.’’ Ark. R. App. P. 6 (d). Here the lawyer who represented Mrs. Dorazio at the May, 1979, hearing has merely stated, in a two-sentence affidavit, that although he recalls the witnesses who testified he cannot recall the substance of their testimony. Since the witnesses themselves would be the best means of reconstructing their testimony, we find no showing of diligence. Moreover, we cannot help noting that after Mrs. Davis’s absolute right to partition has been delayed in the courts for six years, the appellant is asking that the whole process be started again on account of an omission not shown to have any subtantial materiality. To sustain such a contention would be a miscarriage of justice.
Second, the motion to affirm as a delay case. A motion of this kind is recognized both by statute, Ark. Stat. Ann. § 27-2141 (Repl. 1979), and by our own rules. Rule 4. Even so, both the statute and the rule require that counsel for the appellee endorse on the record a statement that be believes the appeal is prosecuted for delay. No effort has been made to comply with this requirement. The requirement, being penal, must be strictly observed; so it is not our practice to penalize an appellant for delay when the requirement has not been met. Hollaway v. Pocahontas Fed. S. & L. Assn., 230 Ark. 310, 323 S.W. 2d 204 (1959). The motion to affirm must be denied.
The two motions are denied, and the case is returned to the Court of Appeals for further proceedings.
Adkisson, C.J., and Hickman, J., not participating. | [
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Per Curiam.
The petition for Writs of Certiorari and Mandamus is denied.
Purtle and Hollingsworth, JJ., would grant. | [
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John I. Purtle, Justice.
Appellant was tried before a jury as an habitual offender on a charge of theft by receiving and was sentenced to 20 years in the Arkansas Department of Correction and fined the sum of $10,000. After giving notice of appeal the attorney for appellant dismissed the appeal by and with the expressed consent of the appellant. Subsequently the present counsel initiated a timely Rule 37 hearing wherein it was alleged that the statute pursuant to which appellant was tried is unconstitutional; that the court erred in trial procedure; that appellant did not knowingly and intelligently waive his right to appeal; and that the appellant was denied effective assistance of counsel. We do not agree with any of these arguments.
The facts upon which the conviction and sentence are based are not involved in this appeal. All four arguments presented by appellant are matters of law and procedure. The appellant was tried on charges of theft by receiving and of being an habitual offender. During the course of the trial appellant was asked questions relating to his past criminal activities. The guilt and penalty determinations were submitted to the jury at the same time with the consent of the appellant. The constitutionality of Ark. Stat. Ann. § 41-2206(3) (Repl. 1977) was not challenged at the trial. After being notified that he did not have to testify, the appellant took the stand for the apparent purpose of refuting the presumption that appellant knew the merchandise in question was stolen. The statute and AMCI 2206 state that the unexplained possession of recently stolen property may be considered as evidence of guilt. The trial attorney made practically no objections to any matter presented by the state.
The first argument by the appellant is that Ark. Stat. Ann. § 41-2206(3) and AMCI 2206 are unconstitutional. It is argued that they violate Article 2, Sec. 8 of the Constitution of Arkansas and Amendment 5 to the Constitution of the United States. Specifically it is argued that AMCI 2206 is in conflict with AMCI 111. This court upheld the consti tutionality of the statute here in question in the case of Newton & Stricker v. State, 271 Ark. 427, 609 S.W.2d 328 (1980).
It was not prejudicial error for the court to submit to the jury both the guilt and sentence questions at the same time. Spears, Cassell & Bumgarner v. State, 280 Ark. 577, 660 S.W.2d 913 (1983). Neither may this question be considered on an appeal of denial of post conviction relief. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). The appellant and his counsel specifically agreed that both the guilt and sentence questions would be presented to the jury at the same time.
The appellant’s other points for reversal will be considered together since they involve claims of ineffective assistance of counsel. During the trial appellant took the stand in his own defense. During direct examination he was asked, “Do you have any previous convictions?” His reply was, “I’ve been in and out of trouble ever since I was about 14 years old.” It is obvious that the strategy of defense counsel may well have been to “lay the cards on the table.” The strategy could have been to reveal to the jury, prior to cross examination, the record and convictions which would no doubt be inquired about by the state. The plan may well have been intended to present to the jury a man who had “learned his lesson” from his prior experiences with criminal activities and who. was now a “new person.” Trial counsel was not ineffective for failure to raise the constitutionality of Ark. Stat. Ann. § 41-2206 and AMCI 2206 because this court had previously decided the question in the case of Newton & Stricker v. State, supra.
The record on appeal of the original conviction was due to be filed in this court no later than April 20, 1983. The record was certified by the circuit clerk on February 14,1983. Both the trial attorney and the attorney retained for appeal testified that appellant indicated a desire to drop the appeal even before the transcript was finished. The appellant signed a request for withdrawal of his appeal, on May 3,1983. The attorney who was to do the appeal testified that he would have followed through with the appeal had appellant not requested that it be withdrawn.
Neither mere errors, omissions or mistakes nor improvident strategy or bad tactics will suffice to prove ineffective assistance of counsel. In order to establish ineffective assistance of counsel it must be shown that the appellant was prejudiced, and clear and convincing evidence must be presented that the ineffective assistance resulted in appellant’s failure to receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). The United States Supreme Court recently held that our standards set out in Blackmon are proper standards to be used in determining effective assistance of counsel. Washington v. Strickland, _U.S. _, 104 S. Ct. 2052 (1984).
Affirmed. | [
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P. A. Hollingsworth, Justice.
The appellees were awarded compensatory and punitive damages against the appellant, Petrus Chrysler-Plymouth, Inc., (Petrus) after a fire destroyed a 1975 Dodge Ramcharger purchased by the appellees from the appellant. Petrus raises seven issues in its appeal from the j ury’s verdict. This appeal is before us under Sup. Ct. R. 29 (1) (o) as it presents questions in the law of torts and contracts. We affirm.
On June 9,1979, Mr. and Mrs. Davis, the appellees, test drove the Ramcharger. As it was being driven by the appellees, it began to smoke from underneath the dash. When they returned it to the lot, they told the salesman what had happened. They then negotiated an agreement and signed a buyer’s order dated June 9. Under the agreement, Petrus was to “repair wiring” “adjust clutch” and “fix hood latch.”
Two days later, on June 11, Petrus contracted with Wimberly’s Gulf Service Center for the repair work. Ray Wimberly testified at trial that he told Jean Dolan, who works for Petrus, that the vehicle’s wiring harness needed to be repaired or replaced. He also testified that she told him they were only going to show the vehicle and she wanted him to get the air conditioner and the radio working. He stated that she told him that if someone bought it and the wiring still gave them trouble they could bring it back and fix it at another time. Mr. Wimberly replaced the switch and made the repairs on the air conditioner wires, but he did not replace the wiring harness.
Mr. Davis returned to Petrus to take possession of the vehicle on June 11. It had not been repaired so he did not take delivery, but returned on June 13. The clutch still had not been repaired, but he testified that the salesman told him the wiring harness had been replaced. Petrus gave Mr. Davis a $100 check for him to use to repair the clutch. Mr. Davis signed a second buyer’s order dated June 11, 1979, which contained the handwritten notations, “as is” and “paid $100.00 for repair of clutch.”
Ón June 15, while Mrs. Davis was driving the Ram-charger, it started smoking from underneath the dash, caught fire, and was heavily damaged.
The Davises brought suit when they were unable to resolve the matter with Petrus. A jury awarded them $10,700 for compensatory damages and $5,000 for punitive damages.
On appeal, the appellant argues that: (1) the trial court erred in failing to grant their motion for directed verdict; (2) the trial court erred in allowing appellees to introduce oral testimony to vary and contradict the terms of the written contract between the parties; (3) the trial court erred in instructing the jury on the question of breach of warranty; (4) the trial court erred in giving the damage instruction because there was no evidence of probable cause; (5) the trial court erred in instructing the jury on punitive damages; (6) the trial court erred in directing a verdict for the appellees on the question of abuse of process; and (7) there was no substantial evidence to support the verdict of the jury. We find no merit in any of the appellant’s contentions.
The crux of the appellant’s first argument is that the trial court should have granted their motion for a directed verdict because of the appellees’ failure to prove the existence of a defect and that the defect caused the damage. There was conflicting testimony as to the probability that the cause of the smoke coming out from under the dashboard on the test drive was the same as the cause of the fire that subsequently destroyed the vehicle. However, we review the evidence in the light most favorable to the appellees. Norman v. Gray, 238 Ark. 617, 383 S.W.2d 489 (1964). Since it is within the province of the jury to believe the appellees’ theory over the appellant’s version, we only consider whether there is any substantial evidence to support the jury’s findings. Id.
We have adopted the doctrine of strict liability in torts in products liability cases. See Ark. Stat. Ann. § 85-2-318.2 (Supp. 1983). This however, does not change the burden of proof as to the existence of a defect in a product. Southern Co. v. Graham Drive-In, 271 Ark. 223, 607 S.W.2d 677 (1980). Such proof may be by circumstantial evidence. Id. In Southern Co., we stated:
It is true, as appellant argues, that liability cannot be based on mere conjecture and guess, (citation omitted). However, in the absence of direct proof of a specific defect, it is sufficient if a plaintiff negates other possible causes of failure of the product, not attributable to the defendant, and thus raised a reasonable inference that the defendant as argues here, is responsible for the defect.
Futhermore, in Harrell Motors, Inc. et al v. Flancery, 272 Ark. 105, 612 S.W.2d 727 (1981), we stated that:
proof of the specific defect is not required when common experience tells us that the accident would not have occurred in the absence of a defect. In such a situation there is an inference the product is defective, and it is up to the manufacturer to go forward with the evidence.
Here, we find there was ample evidence from which the jury could have inferred that the vehicle was defective when sold to the appellees, and that that defect ultimately resulted in the fire which destroyed the vehicle.
The appellant’s second argument is that the trial court erred by allowing the appellee, Mr. Davis, to tesify about the meaning of the notation “as is” which was on the contract. Mr. Davis testified that “as is” referred to a second handwritten notation which appeared immediately below and which read “Paid $100.00 for repair of clutch.” The appellant maintains that the two terms were two separate thoughts and were in no way related to each other. Therefore, the appellant argues that Mr. Davis’ testimony was introduced to contradict or vary the terms of the written contract, which is contrary to the parol evidence rule.
We have held that the parol evidence rule requires the exclusion of all prior or contemporaneous, oral or written evidence that would add to or vary the parties’ integrated written contract, which is unambiguous. Walt Bennett Ford, Inc. v. Dyer, 4 Ark. App. 354, 631 S.W.2d 312 (1982). In Pollock v. McAlester Fuel Co., 215 Ark. 842, 223 S.W.2d 813 (1949), we held that:
evidence of previous negotiations between the parties is admissible to prove the meaning of written words, not by showing that the parties intended them to mean something different from what other persons at the same time and place and dealing with the same subject matter would attach to them, but to prove that the parties.were dealing in regard to a matter or to secure an object, or under circumstances where local usage would give a particular meaning to the language; or in case the local meaning is ambiguous, to show that the parties attached one appropriate meaning to their words, rather than another equally appropriate meaning.
Here, the words “as is” and the reference to the payment for the clutch appear in the same portion of the contract and were added to the contract at the request of the appellee, Mr. Davis. His testimony as to the meaning of the two terms does not vary or contradict the written contract but merely explains the relation between the two terms. The evidence was admissible.
The appellant’s third and fourth arguments are essentially renewed attacks on the sufficiency of the evidence. Since we already dealt with that question in our response to the first issue, we will not discuss it again. Furthermore, the appellant cites no case law to support his position and essentially reiterates the same argument. We held in Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977), that we would not consider “assignments of error on appeal that are unsupported by convincing argument or authority, unless it is apparent without further research that they are well taken.”
The appellant next argues that the trial court erred in giving a punitive damages instruction because there is no evidence upon which to base a finding that the appellant’s conduct would naturally or probably result in injury. We have held that commercial fraud requires punishment as a deterrent and that “ if there is evidence tending to show that the tortfeasor intentionally performed a deliberate act with the intention of misleading a prospective purchaser about a material matter to his injury, it is proper to permit the jury to consider awarding punitive damages.” Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980); Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). There was evidence that appellant knew the wiring in the automobile was defective, and the appellant was told that the wiring should be replaced. Appellant took another course of conduct that was a misrepresentation and caused injury to the appellees.
The appellant’s sixth contention is that the trial court erred in directing a verdict for the appellees on the question of abuse of process. In the case at bar, there was absolutely no evidence that appellees did anything improper in connection with this lawsuit, either before it was instituted or after.
The appellant’s final point once again goes to the sufficiency of the evidence to support the verdict of the jury. We have already dealt with that issue, and affirm the trial court.
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Per Curiam.
Appellant Cecil Knappenberger was charged with second degree murder in the death of Wiley Johnson. He was found guilty of manslaughter and sentenced to ten years imprisonment. We affirmed. Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983) (amended on denial of rehearing March 28, 1983). We subsequently granted permission to proceed in circuit court pursuant to A.R.Cr.P. Rule 37 on allegations of ineffective assistance of counsel. After a hearing, the trial court found that petitioner had not been denied effective assistance of counsel. This appeal is from that finding.
On appeal from the denial of a petition for postconviction relief we reverse only if the findings of the court are clearly against the preponderance of the evidence. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). The only issues in this appeal are whether counsel’s assistance was ineffective by virtue of his advising appellant to confess to the crime and in failing to object to the autopsy report and the testimony of witnesses Sherrod and Bristow. We conclude that counsel was not incompetent and affirm.
Appellant said in a pretrial statement and at trial that the victim Wiley Johnson angrily approached his truck on a lonely road and j erked open the door, saying he was going to kill him. Appellant said that to protect himself, he shot Johnson once in the leg. The blast from appellant’s shotgun struck an artery causing Johnson to back off and appellant fled in his truck leaving Johnson on the road. According to a state trooper who gave first aid to the victim, Johnson declared he was dying and said appellant had shot him. Johnson bled to death before help could arrive.
Appellant’s trial counsel testified that after talking to petitioner he believed his best defense to be justification. When counsel formed his theory of the defense, he was aware that there had been a dying declaration and that petitioner had told his sister that he shot Johnson. Evidence was also available to show that petitioner was having an affair with a married woman with whom Johnson may also have been romantically involved. On the day petitioner shot Johnson, petitioner told the woman’s husband Richard Sherrod that both he (the appellant) and Johnson had been seeing Sherrod’s wife. Later in the day, Johnson told appellant that a person could get killed telling things like that. Soon thereafter, Johnson stopped petitioner and was shot by him. Another potential witness said that petitioner had told her that he was afraid of losing Mrs. Sherrod, whom he planned to marry, to Johnson. Richard Sherrod had heard petitioner refer to Johnson as a “son of a bitch” who was the cause of the problems between Sherrod and petitioner. The fact that there was substantial evidence of petitioner’s guilt even if he gave no statement is significant in assessing counsel’s advice because what counsel knew at the time he advised petitioner is pertinent, not what evidence the State eventually decided to present at trial. Clearly, the State did not offer the evidence that was available only because the issue had become whether appellant acted in self-defense.
Counsel at first advised petitioner to remain silent. He advised him to give a statement only after weighing the evidence against him and considering the likelihood that self-defense could succeed as a defense in view of the facts of the case. (It may even be said that the strategy was a success in light of the j ury’ s finding him guilty of manslaughter rather than second degree murder.) Once counsel decided in his professional judgment that justification was a plausible defense, he adopted a trial strategy which included petitioner’s making a statement and testifying at trial in line with the contents of the statement to point out to the jury that he had consistently been forthright and honest. There is no doubt that other attorneys could advance other strategies which might not include giving a statement and claiming justification, but this in itself does not make counsel ineffective. See Scantling v. State, 271 Ark. 678, 609 S.W.2d 925 (1981). Matters of trial tactics and strategy which can be a matter of endless debate by experienced advocates are not grounds for postconviction relief. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1975). Petitioner himself made the point that counsel’s decision was a matter of debatable trial tactics by calling as witnesses at the postconviction hearing several experienced attorneys who said they would have handled the defense differently. The State countered with attorneys who testified that counsel had employed sound trial strategy.
With regard to counsel’s failure to object to the autopsy report and to the testimony of witnesses Sherrod and Bristow, counsel’s testimony at the Rule 37 hearing indicates that the decision not to object was also a tactical one, based on the premise that petitioner had nothing to hide from the jury. Also, petitioner has failed to demonstrate that there was any sound basis for an objection or that he was unduly prejudiced by the failure to object. A showing of prejudice is required before postconviction relief is appropriate. Strickland v. Washington, _ U.S. _, 104 S.Ct. 2052 (1984).
The United States Supreme Court recently provided guidelines for assessing attorney performance in the area of investigation of a defense. These guidelines are applicable to petitioner’s case.
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. Strickland v. Washington.
At most petitioner has established that not all attorneys would have pursued the defense of justification or allowed him to give a pretrial statement. The benchmark forjudging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington. We cannot say here that counsel’s tactical decisions denied him a fair trial.
Petition denied.
Purtle and Hollingsworth, JJ., dissent. | [
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John I. Purtle, Justice.
The trial court dismissed appellee, one of three defendants, from a tort action which was brought by the widow and heirs of one of appellee’s employees. Appellants argue on appeal that the heirs of decedent may pursue a wrongful death action for mental anguish and punitive damages for an intentional tort committed by the employer even though the Workers’ Compensation benefits ordinarily is the exclusive remedy for physical injury to an employee. We uphold the ruling by the trial court.
The complaint filed by the widow and heirs of decedent, who died from self-inflicted gunshot wounds, alleged that the employer, appellee, and two supervisory employees pursued a course of conduct which constituted intentional and negligent infliction of emotional distress and mental and emotional assault on decedent. It is fair to state that the complaint was framed to allege an intentional tort was committed by the two employees and that such acts were imputed to appellee by virtue of respondeat-superior, master-servant, and the principal-agent relationship. The complaint alleged further that the Workers’ Compensation law did not supplant the common law remedy sought. The complaint also acknowledged that the widow and the two minor children made a claim for workers’ benefits and entered into a joint petition which was approved by the Commission. The other heirs did not execute the joint petition.
All three defendants filed motions to dismiss on grounds that the complaint did not state a cause of action because the widow had received benefits pursuant to the Workers’ Compensation Act and that appellants were estopped as a matter of law because they had elected to pursue benefits under the Workers’ Compensation Act. The court rejected the motions of the two employees but granted appellee’s motion by stating: “That the Motion to Dismiss filed by the Defendant, Orbit Valve Company, Inc., should be and is hereby granted.” It is from this dismissal that appellants appeal.
The only matter for consideration on this appeal is whether the widow and children, or other heirs of decedent have a claim against the employer for damages resulting from decedent’s death. The employer-employee relationship is not disputed for the purposes of this appeal, We treat the dismissal of the employer as having been based upon the employer-employee relationship and the Workers’ Compensation Act as being the exclusive remedy. The complaint did not allege that appellee committed or commanded these acts which were allegedly committed by the two fellow employees. Therefore, if the employer did not commit, command or authorize these acts, then they were not intentional from his viewpoint. Larson’s Workmens’ Compensation, Sec. 6821. It is true that an employer cannot feloniously assault an employee and relegate the injured employee to his remedies under the Workers’ Compensation Act. Heskett v. Fisher Laundry & Cleaners Company, Inc., 217 Ark. 350, 230 S.W.2d 28 (1950). After a willful and intentional assault by an employer on an employee the injured employee may elect to sue the employer at common law for the injury inflicted. Heskitt, supra. The general rule is that an injured employee’s right to recover for job-related injuries is exclusively under the Workers’ Compensation Act. However, when the employee is able to show actual, specific and deliberate intent by the employer to injure him, he may avoid the exclusive remedy under the Workers’ Compensation law and proceed in a common law tort action. Griffin v. George’s, Inc., 267 Ark. 91, 589 S.W.2d 24 (1979).
Whenever an employee is injured by the willful and malicious acts of his employer he may treat the acts of the employer as a breach of the employer-employee relationship and seek full damages in a common law action. However, he must elect one or the other. Heskett, supra. The mere fact that an employer’s supervisory employee injures another employee by inflicting an intentional tort is not cause to allow a common law action for damages against the employer. To do so would open the door to a flood of tort actions simply because an employee could merely allege the tortfeasor was a notch above him and. thereby evade the Workers’ Compensation law restrictions. An election once made and pursued to recovery prevents a subsequent claim to the other type of relief. Here the widow elected to make a claim under the Workers’ Compensation Act. She cannot now return to a common law action against the employer for damages. The joint petition executed by appellant before the Workers’ Compensation Commission stated in part: “The Claimants contend that their husband and father sustained a compensable injury arising out of and in the course of his employment ...” Appellants then accepted $19,625 as a complete settlement for all claims arising pursuant to the Workers’ Compensation Act. The rights granted by the Act are “exclusive of all other rights and remedies of such employee, his legal representative, dependents, or next [of] kin or anyone otherwise entitled to recover damages from such employer ...” Ark. Stat. Ann. § 81-1304 (Supp. 1983).
In the present case the other heirs are in the same position as the widow and children as to the dismissal of the complaint for failure to state a cause of action which would exempt the claim against the employer from the exclusiveness of the Workers’ Compensation Act. The acts of the other employees are not automatically imputed to the employer. Before an action may be sustained there must be allegations of willful and intentional acts by the employer or it must be alleged that he directed, authorized or commanded his other employees to do the wrongful acts. Neither allegation was contained in the complaint.
We recognize that Owens v. Bill & Tony’s Liquor Store, 258 Ark. 887, 529 S.W.2d 354 (1975) held that the mere filing of a common law action did not prevent a subsequent claim for benefits under the Workers’ Compensation Act. Here, however, the claim for benefits resulted in a settlement of the claim pursuant to the Act. In such a case we hold that the election prevents a subsequent claim under the common law.
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Per Curiam.
The petition for Habeas Corpus on behalf of Leonard Ginter is heard and considered this date. Although it does not appear that Cassius Lee Peacock is a licensed attorney, the petition is considered as having been filed by Leonard Ginter.
In view of the fact that this matter has been considered by the entire Court on June 4, 1984 and June 18, 1984, it is determined that to grant the petition would be contrary to the views of a majority of the Justices on this Court and would be improper.
Petitioner and the state appeared and argued their case. Although Leonard Ginter has been held in a county jail for 14 months without trial, his trial is now scheduled for August 27,1984. He is not entitled to release because the trial court and the majority members of this Court have held he is not illegally detained according to the record before this Court. This order is without prejudice to^any point petitioner wishes to present on appeal.
Writ denied. | [
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Darrell Hickman, Justice.
The question before us is whether a security interest in certificates of deposit, perfected by possession, is superior to a judgment against the owner of the certificates. The trial court was right in holding the possessory security interest superior.
The appellant obtained a judgment of almost $27,000 against the appellees M & C Manufacturing and Ruby Carraway on July 16, 1982. Prior to the judgment Mrs. Carraway had assigned eleven certificates of deposit to the First State Bank of Warren to secure a loan and the bank held these certificates. Five of the certificates were issued by the Warren Bank and six by another bank. The certificates were all either non-negotiable or non-transferable, or both. The bank was served with a writ of garnishment, and it answered claiming its lien.
The appellant’s argument is that the bank did not file security agreements to perfect its claims as required by the Uniform Commercial Code. Ark. Stat. Ann. § 85-9-302 (Supp. 1983). The appellees concede that security agreements were not filed but argue it was not necessary.
The parties agree that the case hinges on whether the certificates are “instruments” as defined in the Uniform Commercial Code since security interests in instruments are perfected through possession. Ark. Stat. Ann. § 85-9-305 (Supp. 1983). Ark. Stat. Ann. § 85-9-105 (1) (i) (Supp. 1983) provides:
‘Instrument’ means a negotiable instrument, or a security or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment; ....
We agree with the weight of authority in holding that a certificate of deposit is an “instrument.”
In First National Bank in Grand Prairie v. Lone Star Life Insurance, 524 S.W.2d 525 (Tex. App. 1975), a bank held a non-negotiable C.D. pursuant to a security agreement. One of the issues, as in the case at bar, was whether possession was sufficient to perfect the security interest. The court held that the C.D. was an instrument because it evidences a right to payment of money and is transferable by delivery of possession in the ordinary course of business. See also Citizens National Bank of Orlando v. Bornstein, 374 So.2d 6 (Fla. 1979); Wightman v. American Nat. Bank of Riverton, 610 P.2d 1001 (Wyo. 1980). The fact that the certificates were non-negotiable and non-transferable in no way prevents them from being instruments because Ark. Siat. Ann. § 85-9-105 (1) (i) provides an instrument is “ . . . any other writing which evidences a right to the payment of money” and indeed that describes a certificate of deposit.
Affirmed. | [
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P. A. Hollingsworth, Justice.
William and Jerrine Estes, cross-appellants, were injured in an automobile accident, from which they incurred medical expenses in excess of $4,000, and William Estes sustained loss of earnings in excess of $7,280. They were insured by the crossappellee, Travelers Insurance Co., under a policy covering two motor vehicles, the 1975 Lincoln which they were occupying and a 1960 Ford. The policy provided $20,000 in personal injury coverage for each accident, including a maximum of $2,000 in medical benefits and fifty-two weeks of income disability ata maximum of $ 140 per week. This is the minimum required by statute. See Ark. Stat. Ann. § 66-4014 (a) and (b). For coverage under the medical benefits a premium of $ 11.00 was charged on the Lincoln and $6.00 on the Ford. The premium for the income disability was $4.00 on both vehicles. Travelers paid to both Esteses the sum of $2,000 as reimbursement of medical expenses and to William Estes the sum of $7,280 under the wage loss benefit coverage of the Personal Injury Protection Endorsement of its policy. Both of the Esteses have sustained damages substantially in excess of these amounts. Since the Esteses’ injuries exceeded the amount payable under one claim, they presented a claim for benefits under the other coverage provision. Travelers denied the claim and the Esteses brought suit. The trial court held that Mr. and Mrs. Estes were not entitled to benefits under more than one of the coverage provisions. Our jurisdiction is under Rule 29( 1 )(c). We agree and affirm.
It must be emphasized that the issue in this case is not that of construing the Travelers policy because it unequivocally prevents “stacking” by providing that the insurer’s liability for medical expenses for each person is limited to $2,000 no matter how many cars are covered by the policy. Counsel for the cross-appellants admits that in the first paragraph of his brief:
At the outset, cross-appellants acknowledge that the language contained in the endorsement attached to the policies involved here would, if enforced, prevent the stacking of coverages. That language is not, however, authorized by the statute making this coverage mandatory and therefore cross-appellants urge that it must be disregarded. Therefore what is presented here is a question of statutory interpretation rather than one of policy construction.
In quoting the pertinent parts of the statute, we italicize the words relied on by the cross-appellants:
Every automobile liability insurance policy covering any private passenger motor vehicle issued or delivered in this State shall provide minimum medical and hospital benefits ... to the named insured and members of his family residing in the same household injured in a motor vehicle accident, to passengers injured while occupying the insured motor vehicle, and to persons struck by the insured motor vehicle, without regard to fault, as follows:
(a) Medical and Hospital Benefits. All reasonable and necessary expenses for medical, hospital and other specified services up to an aggregate of $2,000 per person. [Ark. Stat. Ann. § 66-4014 (Repl. 1980).]
# # *
The coverages provided in Section 1 [above] shall apply only to occupants of the insured vehicle and to persons struck by the insured vehicle . . . and to none other. Provided, however, said coverages shall not be applicable, or payable, if the prescribed minimum coverages are afforded to said occupants . . . either as a named insured or additional insured under another valid and collectible automobile insurance policy. [§ 66-4016.]
The cross-appellants make a single argument: The statute requires every automobile liability policy to provide $2,000 in medical benefits to the named insured and resident members of his family “inj ured in a motor vehicle accident. ” That means, it is argued, that all family members must be covered if they are injured in a motor vehicle accident, regardless of whether the insured vehicle is involved. Counsel goes on to say:
Had separate policies of insurance been issued on the two vehicles covered by the single policy issued by cross-appellee, and had each policy contained an endorsement repeating the language of Ark. Stat. Ann. § 66-4014 verbatim, there would appear to be no question but what each insured vehicle was entitled to benefits under both policies. That result should not be different because the two coverages were combined in a single policy, rather than single policies being involved.
The fatal flaw in this argument is its total disregard of section three of the no-fault statute (§ 66-4016, quoted above), which provides in the clearest possible language that the medical expense coverage required by section one (§ 66-4014, on which the cross-appellants rely) “shall apply only to occupants of the insured vehicle . . . and to none other.” Here the cross-appellants paid two premiums for the medical expense coverage on their two cars, an $11 premium for $2,000 of insurance on their 1975 Lincoln and a $6 premium for like insurance on their 1960 Ford. Mr. and Mrs. Estes were not and could not have been occupants of both vehicles when they were hurt. They were in the Lincoln at the time and were covered as occupants of that “insured vehicle.” They were not in the Ford and cannot claim to be covered as occupants of that insured vehicle.
The cross-appellants’ reliance on Kansas City Fire & Marine Insurance Co. v. Epperson, 234 Ark. 1100, 356 S.W.2d 613 (1962) is misplaced. That case did not involve a construction of the no-fault statute. The issue there was solely a matter of interpreting the policy. That policy provided for the payment of $1,000 in medical expense for the insured and members of his family “injured in any automobile accident, regardless of whether either insured vehicle was involved.” Since the company had collected two premiums, one of $7.20 and the other of $4.20, for that comprehensive coverage, the court held that where the medical expense exceeded $2,000, the company was liable under both the $1,000 coverages. That was true, however, not because of the wording of the statute but because of the wording of the policy. The policy now before us expressly excludes such stacking.
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George Rose Smith, Justice.
The appellant Kenneth Jones and Dennis Williams, both aged 19, were jointly charged with burglary and aggravated robbery. They were tried separately. After Williams had been convicted, the appellant Jones was tried, found guilty, and sentenced as an habitual offender to concurrent terms of 30 years for burglary and life for aggravated robbery. There is no merit in the four arguments for reversal.
On May 3, 1983, the victim, Ruby Davis, aged 78, was living with her elderly husband in Dermott. He left home at about 8:00 p.m. on a brief errand. As he backed out of the driveway he saw Dennis Williams and Kenneth Jones using a public telephone across the street.
After Davis's departure the two young men rang the doorbell and forced their way in when Airs. Davis opened the door. Kenneth brutally attacked Mrs. Davis, demanding to know where her money was, while Dennis ransacked the house and found about $390. Mrs. Davis suffered a fractured skull, a brain injury paralyzing her left leg, a broken nose, an injured eye, and head injuries. She was hospitalized for a month and used a wheel chair after that. At the trial she identified Kenneth as her attacker.
Dennis was tried first and elected to testify at his trial. He said he and Kenneth had entered the house together. Kenneth grabbed Mrs. Davis, but Dennis ran to the back of the house, found the money, and fled. He said he did not see Kenneth hit Mrs. Davis and did not know until later that she had been hurt.
In the present case the State called Dennis as a witness, but in effect he refused to testify against Kenneth, saying he did not want to talk about the occurrence and was trying to forget it. From the record:
Q. Now who helped you [commit the crime]?
A. I’m through with that. I don’t want to talk about it no more.
Q. You don’t want to talk about it. You’ve talked about it before, haven’t you?
A. That’s right.
Q. You all of a sudden have a loss of memory?
A. You could say that.
In view of Dennis’s refusal to testify, the trial court permitted the State to introduce the record of his earlier testimony.
Before passing upon an objection raised during the selection of the jury, we will consider the appellant’s argument that the record of Dennis’s prior testimony was not admissible. That may have been true before our legislature adopted the Uniform Rules of Evidence, but such prior sworn statements are now admissible as substantive evidence in criminal cases. Ark. Stat. Ann. § 28-1001, Rule 801(d)(l)(i) (Repl. 1979). The Rule requires that the declarant be subject to cross-examination at the later trial, as Dennis was, and that his testimony be inconsistent with his earlier testimony.
The appellant argues that since Dennis professed to be unable to remember Kenneth’s part in the crime, that disclaimer was not “inconsistent” with his former testimony. Such an argument has been rejected repeatedly with respect to the identical federal rule, from which our rule was copied. We agree with this typical statement of the view taken by the federal courts:
The trial court has considerable discretion in determining whether testimony is “inconsistent” with prior statements; inconsistency is not limited to diametrically opposed answers but may be found in evasive answers, inability to recall, silence, or changes of position.
United States v. Russell, 712 F. 2d 1256 (8th Cir. 1983). To much the same effect is this language from United States v. Distler, 671 F. 2d 954 (6th Cir. 1981):
Thus, when a witness remembers events incompletely, or with some equivocation at trial, it is not improper to admit a prior statement that otherwise complies with the limitations of Rule 801(d)(1). . . . Determinations such as these are properly left to the discretion of the trial court, and that discretion was not abused here.
Perhaps it is true, as Weinstein suggests, that the prior testimony might not be admissible if the witness had suffered amnesia and genuinely could not remember the original occurrence. Weinstein’s Evidence, § 801(d)(1)(A) [04] (1981). On the record in this case, however, the basic rule controls. The trial court did not abuse its discretion in permitting the use of Dennis’s prior testimony.
Second, the prosecutor’s expectation of using Dennis’s earlier testimony had led to a defense objection during the selection of the jury. On voir dire the prosecutor explained to several veniremen that Dennis Williams had been convicted of the same crime, that Dennis had testified at his own trial, and that the prosecutor did not know what his testimony as a witness for the State would be; it might differ from his original testimony. The prosecutor, stating that he did not want the jury to hold the prior conviction against Kenneth Jones, asked if the veniremen could weigh Dennis’s two statements, if conflicting, and give his testimony the credibility they thought it deserved. Defense counsel asked for a mistrial on the ground that the jury should not have been told that Dennis had been convicted as an accomplice to the crime on trial. That particular objection is not argued on appeal, but it is insisted that a mistrial should have been declared because the jury was “saturated” with references to the possibility that the accomplice’s testimony might not be the same. Counsel argue tlrat it is “absolute error” to allow the State to inquire about evidentiary matters during the voir dire. No supporting authority is cited.
The trial judge has wide discretion in controlling the questions to be asked on voir dire. See Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). That is necessarily the rule, for the range of permissible inquiries and the diversity of legitimate questions are so great as to make it impossible to lay down rigid rules governing counsel’s examination of jurors. Relevancy and good faith are surely essential, but we do not perceive the absence of either in this case.
As to the relevancy, the voir dire is not limited to matters that might disqualify the juror, but also is to enable counsel to decide whether a peremptory challenge should be used. Cochran v. State, 256 Ark. 99, 505 S.W.2d 520 (1974). Here the prosecutor explained that he wanted to know whether a juror might “block out” the prior testimony because Dennis was a convicted felon. The prosecutor did not seek any commitment from the jurors except that they weigh the accomplice’s possibly conflicting testimony to determine its credibility. As to good faith, there is no indication whatever of bad faith. To the contrary, the prosecutor stated that Dennis’s being a convicted felon would come out on the witness stand (as it did), and “I’m not asking you in any way to hold that against this defendant, because he deserves a trial of his own by his own jury.” We find no abuse of the trial judge’s discretion in controllling the voir dire nor any indication that the jury was prejudiced by learning in advance a fact that was repeated again and again during the State’s case: that Dennis and Kenneth committed the crime together.
Third, it is argued that the sheriff should not have been allowed to testify that Dennis had told him that he had been at Rose’s Place in Dermott-at about 10:00 p.m. on the night in question, had gone to a gambling house for 15 minutes, and had ridden to McGehee with Rob Plumer. The testimony was certainly hearsay, but it was also of no importance. Kenneth’s defense, supported by his witnesses, was that he had been with several other persons either in Dermott or in McGehee from about 7:30 to midnight and could not have committed the crime in Dermott at eight o’clock. The challenged hearsay did not contradict that defense nor prove anything relevant. We do not see how it could have been prejudicial, nor does counsel point out any possible prejudicial effect.
Fourth. The trial was bifurcated, Kenneth having been charged as an habitual offender with two prior convictions. After the first stage of the trial resulted in verdicts of guilty, proceedings were had in chambers for a determination of the prior convictions. Since the enactment of Act 252 of 1981, that determination, at least when the evidence is undisputed, is to be made by the trial judge out of the hearing of the jury. Ark. Stat. Ann. § 41-1005 (Supp. 1983); AMI Criminal 7000 (1982).
When the court is to determine previous convictions, a duly certified copy of a record of a previous conviction is sufficient proof. § 41-1003. That proof was introduced in chambers in this case, in the form of certified copies of judgments showing that Kenneth Jones had pleaded guilty to theft of property in 1980 and to burglary in 1981. Those judgments were examined by the trial judge, were marked as exhibits, and are in the record. The proceedings were then resumed in open court, where the judge used AMCI 7001-A to inform the jury of the two convictions and submit the matter of punishment to the jury.
It is quite apparent that defense counsel did not understand the in-chambers procedure mandated by Act 252, for after the jury retired he put his objections into the record in language we quote in part:
There’s been no introduction of evidence as to prior convictions, and that the Judge unduly commented on the evidence without the documents being entered into evidence, and for these reasons we object [to his being] sentenced under the specific statute in addition to our objection awhile ago, state that no prior conviction properly proves that the jury properly considered it. . . . Notice that this is in chambers, and you don’t introduce evidence in chambers, you introduce evidence for the jury to [see], ... If they had attempted to introduce the evidence in the courtroom as properly required instead of out in the back room, the proper objection would have been made. You don’t introduce evidence for the jury in the back room. You introduce it in the courtroom, for them to look at it.
On this fourth point counsel’s brief, as we understand it, makes essentially two arguments. First, it is contended that the court did not have the hearing contemplated by Section 41-1005 (2), because the certified copies of the judgments were not formally introduced in evidence. The copies, however, were regular on their face, were examined by the court, were marked as exhibits, were placed in the record, and were the basis for the court’s instruction to the jury in the language of AMCI 7001-A, submitting the enhanced ranges of punishment. If this was not a literal compliance with the requirements, and we think it was, it was certainly a substantial compliance. Nothing essential was omitted.
Second, it is contended that the defendant was not given an opportunity to controvert the evidence of previous convictions, a right recognized by Section 41-1005 (2). Counsel, however, was present during the entire proceeding in chambers and had the opportunity to Offer whatever evidence he had. That he did not offer any was not due to any action by the judge but rather to counsel’s mistaken belief that an additional hearing had to be held in open court. Finally, an insuperable flaw in this contention is counsel’s failure to make any proffer of the proof that he supposedly wanted to introduce. Absent such a proffer, we cannot send the case back for a new trial that might prove wholly unnecessary for want of any competent evidence to rebut the prima facie proof of previous convictions. The proffer is vital.
Pursuant to the statute and rules governing appeals from a sentence of life imprisonment, we have examined the record and find no prejudicial error to which an objection was made.
Affirmed.
Purtle, J., dissents. | [
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Steele Hays, Justice.
This suit comes to us on appeal by Ozark Kenworth, Inc., appellant, from a suit brought by Johnny Neidecker, appellee, who was awarded damages by a jury for breach of warranty and fraud in connection with the sale of a truck to Neidecker.
In March 1980, Neidecker purchased from Kenworth a Peterbilt truck represented as a 1978 model. The truck was sold “as is” with all other warranties excluded. In May, Neidecker was stopped by the Illinois State Police for being overweight. A check on the vehicle showed it had either a 1975 or 1976 Caterpillar engine, a 1971 frame and a 1978 Peterbilt cab. Neidecker then went back to Kenworth to seek redress but was told by Kenworth there was nothing they could do. Neidecker had by this time paid $10,500 to Kenworth but stopped all further payments and evidently made payments instead to an escrow account at a bank. Neidecker continued to use the truck for six months, incurring repair bills totaling $13,888. In October, 1980 Kenworth repossessed the truck as a secured party under § 85-9-503 of the Uniform Commercial Code. The truck was in a repair shop and had been burned from unknown causes. Kenworth took possession of the truck and sold it for salvage.
Kenworth first argues that the court erred by not granting, a directed verdict on the issue of Neidecker’s revocation of acceptance. Kenworth submits Neidecker merely tried to renegotiate the contract, and his subsequent use of the vehicle for six months waived any revocation that might have been made. However, the evidence was such that the jury could have found revocation under the circumstances. A directed verdict is proper only when there is no substantial evidence from which the jurors, as reasonable persons, could find the issues for the party opposing the motion. Sharp Co. v. N.E. Ark. Planning and Consulting Co., 275 Ark. 172, 628 S.W.2d 559 (1982).
Neidecker testified as follows concerning his attempt to revoke the contract:
NEIDECKER: Yes, sir, and I asked him if he would make up the difference, make it up, because I would not pay him, I couldn’t because it was not a 1978 Peterbilt. Would he make up the difference on it, something, you know, for me to revoke that agreement. We had to make out another one, and it wasn’t his problem he said, so, at that time I left.
Q: Did you indicate anything about the contract?
NEIDECKER: Yes, sir, I sure did. I asked him, you know, to make a different contract and everything; there wasn’t nothing he could do about it. . .
Kenworth’s manager, Rick Scott, testified as follows:
Q: When Mr. Neidecker came in to complain, after he had been stopped by the state police in Illinois, did you tell him there’s — you got what you paid for and there’s nothing I can or will do about it?
SCOTT: I told him there was nothing I could do for him, correct.
Q: And if he had made any statement past that point, it would have been to no avail, because that was your position that you couldn’t do anything for him?
SCOTT: That’s correct.
After his meeting with Scott, Neidecker stopped making any payments to Kenworth.
Neidecker was twenty-one years old. He had just gone into business for himself with the purchase of this truck. Comment 5 to § 85-2-608 states: “The content of the notice [of revocation] under subsection (2) is to be determined in this case as in others by considerations of good faith, prevention of surprise, and reasonable adjustment . . . Following the general policy of the Article, the requirements of the content of notification are less stringent in the case of a non-merchant buyer.” We think there was sufficient evidence presented from which the jury could have found revocation.
As to the use of goods after revocation, that circumstance does not necessarily constitute a waiver of revocation, but the courts are divided on this issue. Anderson, Uniform Commercial Code (1983) discusses the point and after noting that some courts have found such use as cancelling a revocation, notes in part:
Other courts hold that the post-revocation use does not affect the revocation of acceptance where the continued use was reasonable as when it was explained on the ground of mitigating damages, inability to effect cover, the buyer’s waiting for instruction from or removal of goods by the seller, economic necessity or as a reasonable way of protecting the goods in which the buyer had a security interest for the recovery of the purchase price.
Anderson, Id. § 2-608:46
The continued use of the goods does not cancel a prior rejection where the seller had wrongfully refused to accept the buyer’s rightful rejection of a mobile home and the seller knew that all the money of the buyer was invested in the home. “While the use of the home [by the buyer] was wrongful as against the seller, such use was the direct result of the oppressive conduct of the sellers in not allowing the buyers to reject, and we do not believe that it is necessary to conclude that use of the goods cancelled the rejection.” [Jones v. Abriani, 350 N.E.2d 635 (1976)]
Anderson, id. § 2-606:33.
This court has not yet addressed the issue, but we believe the better view is represented by those cases which held such use will not invariably cancel revocation . The issue is determined on a case by case basis, with the reasonableness of post-revocation use being the underlying consideration, taken in conjunction with a consideration of all the other elements necessary to effect a justifiable revocation. In this case, the jury had before it the fact that Kenworth flatly refused to acknowledge any breach or to accept any revocation and the jury could have found Neidecker’s use under the circumstances was reasonable. It would not, therefore, have been proper to direct a verdict on behalf of Kenworth.
Further, Kenworth maintains the court improperly instructed the jury on the issue of revocation of acceptance. The instructions were a recitation of § 85-2-602 with the omission of 2(a) from that section. With the omitted portion in italics, § 85-2-602 reads in its entirety:
85-2-602. Manner and effect of rightful rejection. — (1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.
(2) Subject to the provisions of the two (2) following sections on rejected goods,
(a) after rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller; and
(b) if the buyer has before rejection taken physical possession of goods in which he does not have a security interest under the provisions of this Article [subsection (3) of Section 2-711 ], he is under a duty after rejection to hold them with reasonable care at the seller’s disposition for a time sufficient to permit the seller to remove them; but
(c) the buyer has no further obligations with regard to goods rightfully rejected.
(3) The seller’s rights with respect to goods wrongfully rejected are governed by the provisions of this Article on seller’s remedies in general.
Kenworth contends the issue of use and dominion of the goods was a fact question for the jury, that the instructions led the jury to believe that there was no further duty after revocation, nor that Neidecker was under any obligation to discontinue use or exercise of control or ownership. The instructions, however, did tell the jury under § 2-602(b) that the appellee was “under a duty after rejection to hold them with reasonable care ...” and did not, as Kenworth argues, imply that Neidecker had no further duty after revocation.
This issue, too, is new. In light of our discussion of the previous argument, we conclude that it was error for the question of Neidecker’s use of the truck after revocation not to have been submitted to the jury as to its reasonableness. Nor was the instruction offered by Kenworth correct, which makes the objection insufficient to justify reversal. Dickerson Construction Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979).
Kenworth claims error in the trial court’s failure to dismiss Neidecker’s claim under the Federal odometer statute. Neidecker’s original complaint was filed in October, 1980 and on March 3,1983, appellee amended his complaint to include a claim under the Federal odometer law. The statute has a two year limitation, which had run, but under ARCP Rule 15(c), relation back is allowed if the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, which is true in this case. Rule 15(a) allows an amendment at any time if the court determines that no prejudice or undue delay would result if allowed. Kenworth contends it was prejudiced by allowing the amendment as appellant filed its third party complaint on February 24, 1983, against Darrell Meredith (from whom Kenworth had purchased the truck) and a suit by Kenworth over against Meredith was precluded because of Neidecker’s delay. It is settled that Rule 15(c) is to be liberally construed in allowing amendments, but the liberal construction applicable to Rule 15 is limited when prejudice to the adverse party is affirmatively shown. The doctrine of relation back should not be allowed when it operates to cut off a substantial right or defense to new matter introduced by the amendment although connected with the original cause of action. 61A Am. Jur. 2d §§ 310, 311, 314, 337. In this case Kenworth was prejudiced by allowing the amendment, as a defense and a substantial right was denied by its not being able to bring a suit over against the third party defendant.
Kenworth’s other arguments are related and we address them together. It argues error by the court in improperly admitting evidence of incidental and consequential damages, denying a directed verdict and a motion for JNOV on those damages, submitting the issues of damages to the jury, and denying a directed verdict on the issue of liability for breach of warranty of description and fraud. The jury award was $10,500 for breach of express warranty and $13,888 for fraud and misrepresentation.
The truck was sold “as is” all warranties excluded, and the only warranty available to the appellee was a breach of warranty of description i.e. the truck was sold “as is,” a 1978 model while it was, “as is,” a 1976 model. Kenworth contends the only evidence presented was repair bills incurred during the six months following revocation and no causal connection was shown between either the breach of warranty or the misrepresentation — that the appellee put on no evidence to establish that these bills would not have been incurred had the truck been a 1978 model and not a 1976 model.
The measure of damages for breach of warranty and for misrepresentation is the difference between the value of goods received and the value as warranted. See § 85-2-714 and § 85-2-721. Consequential and incidental damages may be recoverable in appropriate circumstances. Here, there was no evidence presented to prove damages for breach of warranty, nor did the instructions given on breach of warranty and fraud state what that measure of damages was. The only instruction given on the measure of damages was for incidental and consequential damages under § 85-2-715. Kenworth is correct that consequential damages must be proximately caused by the seller’s breach or misrepresentation as the jury was so instructed. See § 85-2-715 (2), Consequential Damages. No such proof was offered, which left the issue to speculation. Neidecker contends, however, that these repairs would not have been necessary if Kenworth had made any attempt to cure its breach, but as we have said, Neidecker presented no proof that such would be the cáse. Neidecker urges that these repair bills are recoverable because they were made in connection with maintaining the truck after he revoked his acceptance. This claim falls under § 2-715 (1), Incidental Damages, but appellee cites no authority for such damages and we have found none that goes so far as to allow recovery for incidental damages or consequential damages on comparable facts, nor does the expectation of recovery for such repairs seem reasonable in these circumstances.
As to the denial of a directed verdict on breach of warranty and fraud we find there was sufficient evidence presented to go to the jury on liability on both of these issues. However, an essential element for both claims requires proof of damages proximately caused by the breach or misrepresentation or proof of difference in value. As discussed above, proof was lacking on both counts. With no proof of causal connection between the breach of warranty or the misrepresentation and no proof of the difference in value between the truck received and the truck as warranted, we must agree with Kenworth that the proof was insufficient on the issue of incidental and consequential damages, and on the issue of liability for breach of warranty and fraud.
A problem remains, however, on the issue of revocation, the result of a purely mechanical error, but one which prevented all of Neidecker’s damages from being properly presented to the jury. The jury was instructed on what was required to revoke acceptance and that if such revocation were found the buyer could recover so much of the purchase price as had been paid. However, there was no verdict form supplied on which the jury could record such a finding and make an award for recovery of money paid. The $10,500 awarded for breach of warranty suggests that the jury did find revocation as that was the exact amount Neidecker prayed for in his complaint that had been paid to Kenworth. But we can neither make that assumption nor can we correctly hold, as was discussed above, that any award was proper under the breach of warranty claim for want of proof. We therefore remand the case for a determination on the issue of revocation and what damages are recoverable if justifiable revocation is found.
Reversed and remanded.
Dudley, J., not participating.
We also note that Comment 1 to § 85-2-608 points out that the Code no longer speaks or operates in terms of rescission and the remedy is now dealt with as revocation of acceptance.
See cases cited in Anderson, id. § 2-608:46.
In Snow v. C.I.T. Corp. of the South, 278 Ark. 554, 647 S.W.2d 465 (1983) we went as far as recognizing that under the Code, holding the goods and not tendering them back to the seller will not cancel a previous revocation and cited Anderson, id. § 2-618:18: “If the buyer has paid for the goods in advance or has incurred any expense or damages for which the seller is liable, the buyer, upon making a rightful revocation of acceptance is entitled to hold the goods until he has been paid. That is, the code in such a case gives the buyer a security interest in the goods. Snow at 278. | [
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Robert H. Dudley, Justice.
The nine appellants were each found guilty of violating the Omnibus DWI Act of 1983. The sentences of appellants Carson, Corkran, Fluiatt and Hawkins were enhanced because each had a prior conviction. The other appellants were sentenced as first offenders. These appeals come to this court under Rule 29(l)(c) and are consolidated pursuant to Rule 3, A.R.App.Pro. because common questions of law are involved. We affirm the convictions of those appellants sentenced as first offenders but reverse the convictions of those given enhanced sentences.
Over the objections of appellants Carson, Corkran, Fluiatt and Hawkins, the trial court admitted certificates of prior convictions into evidence and, on the basis of the prior conviction documents, punishment was enhanced. None of the documents reflect that appellants were represented by counsel at their prior trials. The ruling was erroneous. A prior conviction cannot be used collaterally to impose enhanced punishment unless the misdemeanant was represented by counsel or validly waived counsel. Baldasar v. Illinois, 446 U.S. 222 (1980); State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984). Waiver of counsel may not be presumed from a silent record. McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974). Accordingly, we reverse and remand the cases of these four appellants.
Since appellants Carson, Corkran, Fluiatt and Hawkins will be retried, we will also address another poin t of this appeal which will again arise at their new trials. These four appellants’ prior convictions were for violating the older statutes relating to driving while under the influence of intoxicants, Ark. Stat. Ann. §§ 75-1027 through 1031.1. Under these older statutes, there was a presumption that one was under the influence of intoxicants if his blood alcohol content was. 10% or more. The 1983 statute has made driving with a blood alcohol content of. 10% or more illegal, per se. Appellants argue that there is a difference between driving while under the influence of intoxicants and driving while intoxicated, and that a prior conviction for driving while under the influence should not be counted as a prior offense for driving while intoxicated. There is no merit in the argument. Both laws declare that drivers with a blood alcohol content of. 10% or more constitute a threat to public safety. The legislative intent under the Omnibus D WI Act of 1983 was to enhance penalties by using convictions under the older act. § 75-2501(b) states in pertinent part:
... all pleas of guilty and nolo contendere and all findings of guilty of driving while intoxicated within three (3) years prior to the effective date of this Act shall be counted in determining the number of prior offenses for the purposes of enhancing the penalties provided by this Act. . . .
The above part of the act uses the word intoxicated rather than under the influence. However, § 75-2502 (a) defines intoxicated as “influenced or affected by the ingestion of alcohol . . .” The emergency clause also demonstrates the legislative intent;
It is hereby found and determined by the Seventy-Fourth General Assembly that the act of driving a motor vehicle while under the influence of intoxicating alcoholic beverages or drugs constitutes a serious and immediate threat to the safety of all citizens of the State . . . (emphasis added.).
Therefore, upon retrial, previous convictions for driving while under the influence of intoxicants may be used as prior offenses for enhancement purposes under the 1983 act.
All appellants raise other points of appeal. They contend that the failure of the state to preserve samples of their breath tests for later testing constitutes a denial of their right to due process. This argument also is without merit. The Due Process Clause of the Fourteénth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce breath analysis tests at trial. California v. Trombetta, _ U.S. _, 104 S.Ct. 2528 (June 11,1984). Appellants additionally contend that the failure to preserve the samples denied them their Sixth Amendment confrontation rights. However, since neither citation of authority nor convincing argument is given and since it is not apparent without further research that the point is well taken, we do not consider the issue. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
Appellants next contend that the Omnibus DWI Act of 1983, Act 549, Ark. Stat. Ann. §§ 75-2501 through 75-2514, is unconstitutional on its face and as applied. They make four arguments of unconstitutionality. First, they argue that § 75-2503(b) establishes a conclusive presumption of guilt because it provides that it is unlawful for any person to drive with .10% or more by weight of alcohol in his blood.
The subsection does not lessen the state’s burden of proof. Each defendant is presumed innocent until the state proves beyond a reasonable doubt that he is guilty of committing the prohibited act of driving with . 10% or more alcoholic content in the blood. The state has a rational basis in protecting public safety and to that end the General Assembly has determined that a driver with a blood alcohol content of .10% or more constitutes a serious and immediate threat to the safety of all citizens. This act is simply a reasonable means of protecting the public safety. The appellants were innocent until the state proved beyond a reasonable doubt that the appellants were driving and that their blood alcohol measurement was . 10% or more. People v. Ziltz, 98 Ill. 2d 38, 455 N.E.2d 70 (1983).
Second, appellants contend that the act is unconstitutional because the .10% standard of § 3 (b) is vague. Both the Fourteenth Amendment to the United States Constitution and article 2, section 8 of the Arkansas Constitution declare that no person shall be deprived of life, liberty or property without due process of law. It has been recognized for over 80 years that due process requires some level of definiteness in criminal statutes. Note, Due Process Requirements of Definiteness in Statutes, 62 Harv. L. Rev. 77, fn. 2 (1948). Due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt. State v. Bryant, 219 Ark. 313, 241 S.W.2d 473 (1951); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 68-69 (1960); Note, Due Process Requirements of Definiteness in Statutes, 62 Harv. L. Rev. 77-78 (1948).
The subsection setting .10% as the standard meets both requirements. First, it gives a fair warning of the prohibited conduct. Due process requires only fair warning, not actual notice.
Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.
McBoyle v. United States, 283 U.S. 25, 27 (1931).
The standard is the same in Arkansas. Trice v. City of Pine Bluff, 279 Ark. 125, 129, 649 S.W.2d 179 (1983). The subsection fairly warns a person of ordinary intelligence that he is in jeopardy of violating the law if he drives a vehicle after consuming a quantity of alcohol. Second, a clear standard is set for police enforcement. In addressing the same issue, the California Supreme Court stated:
. . ,[T]he statute could not be more precise as a standard for law-enforcement. (Freund, The Use of Indefinite Terms in Statutes (1921) 30 Yale L.J. 437, 437.) It gives no discretion whatever to the police, and thus is not susceptible of arbitrary enforcement. . . . Indeed, the very precision of the standards assures the statute’s validity in this respect. (Cf. Note, The Void-for-Vagueness Doctrine in the Supreme Court, (1960) 109 U.Pa.L.Rev. 67, 90-91.) (citation omitted)
Burg v. Municipal Court, 673 P.2d 732, 740 (Cal. 1983).
Appellants’ third argument is that the act is an unconstitutional violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and Article 2, Sections 8 and 10 of the Constitution of Arkansas because the .10% standard of § 3 (b) is arbitrary, capricious and unreasonable. They contend that there is no legal or scientific basis for the legislative determination that .10% blood alcohol content constitutes a dangerous level of alcohol.
The state has broad police powers to protect its citizens from real dangers. Driving while intoxicated is such a real danger. South Dakota v. Neville, _ U.S. _, 74 L. Ed. 2d 748 (1983). The only issue is whether driving with a blood alcohol measurement of .10% or more scientifically bears a reasonable relationship to the legitimate state interest in protecting the safety of its citizens. The California Supreme Court has clearly answered the question:
. . . Scientific evidence and sad experience demonstrate that any driver with 0.10 percent blood alcohol is a threat to the safety of the public and to himself. (Gray, Attorney’s Textbook of Medicine (3d ed. 1983) §§ 133.52-133.52(3) [all individuals suffer impairment at 0.10 percent blood-alcohol content]; State v. Franco, supra, 96 Wash. 2d 816, 639 P.2d 1320, 1322 [abundant scientific evidence that at 0.10 percent blood alcohol all persons are significantly affected and will have lost at least one-quarter of their normal driving ability]; People v. Lewis (1983) 148 Cal. App. 3d 614, 617, 196 Cal. Rptr. 161; People v. Schrieber (1975) 45 Cal. App. 3d 917, 924, 119 Cal. Rptr. 812; People v. Lachman (1972) 23 Cal. App. 3d 1094, 1098, 100 Cal. Rptr. 710; People v. Perkins (1981) 126 Cal. App. 3d Supp. 12, 21, 179 Cal. Rptr. 431; Greaves v. State, supra, 528 P.2d 805, 807; Coxe v. State (Del. 1971) 281 A.2d 606, 607; Oversight into the Administration of State and Local Court Adjudication of Driving While Intoxicated: Hearings Before Subcom. on Courts of Sen. Com. on the Judiciary, 97th Cong., 1st Sess. (1981) Serial No. J-97-79, pp. 99-101 [hereinafter Hearings Before Subcom. on Courts] [statement of Dr. Roger P. Maickel, noting that typically vision impairment begins at 0.03-0.08 percent blood alcohol and becomes significant in all subjects at 0.10 percent; reaction-time impairment begins at 0.04 percent; judgment of distance, dimensions and speed at 0.08 percent; coordination and memory at 0.10 percent].) Section 23152, subdivision (b), represents a legislative determination to that effect. (Accord, Greaves v. State, supra, 528 P.2d 805, 807; Coxe v. State, supra, 281 A.2d 606, 607; State v. Gerdes, supra, 253 N.W.2d 335, 335-336; State v. Clark (1979) 286 Or. 33, 593 P.2d 123, 126; State v. Basinger, supra, (1976) 30 N.C. App. 45, 226 S.E.2d 216, 218; People v. Fox (N.Y. Just. Ct. 1976) 87 Misc. 2d 210, 382 N.Y.S. 2d 921, 925-926; cf. Erickson v. Municipality of Anchorage (Alaska App. 1983) 662 P.2d 963, 969-970, fn. 3.) Indeed, the available scientific information would support an even lower figure. (Hurst, Estimating the Effectiveness of Blood Alcohol Limits (1970) 1 Behav. Research Highway Safety 87; Ross, Deterring the Drinking Driver (1982) pp. 2-3; Jones & Joscelyn, Alcohol and Highway Safety 1978, op. cit. supra, pp. 35-50; Hearings Before Subcom. on Courts, supra, pp. 99-101; Gray, Attorneys’ Textbook of Medicine (3d ed. 1983) §§ 133.52-133.52(3). At least two states and several foreign countries have established standards between O. 05 percent and 0.08 percent. We have no difficulty concluding that the 0.10 percent figure fixed by section 23152, subdivision (b), is rationally related to exercise of the state’s legitimate police power. (Roberts v. State, supra, 329 So.2d 296, 297.)
The .10% standard is reasonable and bears a direct relationship to the state’s interest in protecting its citizens.
Appellants’ fourth argument is that the act unconstitutionally allows the police officer, rather than the prosecuting attorney, to file the charge. On the misdemeanor cases before us on these appeals, the argument is without merit. However, we issue a caveat that the argument may well be meritorious in felony cases.
Article 2, Section 8 of the Constitution of Arkansas provides that no one shall be held to answer a criminal charge unless on the presentment or indictment of a grand jury except for those cases which the General Assembly shall make cognizable by Justices of the peace, or courts of similar jurisdiction. Justice of the peace courts and similar jurisdiction courts have jurisdiction only of misdemeanors. See Ark. Stat. Ann. § 22-709, 22-724 and § 22-801 (Repl. 1962). Amendment 21 provides that offense which had to be filed by grand jury indictment may now be filed by an information by the prosecuting attorney.
Delivered December 21, 1984
Since all appellants are charged with misdemeanors and since only felonies are required to be brought by indictment or information, the act, as applied to these appellants, does not violate the Constitution of Arkansas.
Appellants also argue that the act constitutes an unlawful delegation of judicial power to the administrative branch. The argument is predicated upon the act giving the Arkansas Department of Health the authority to select and approve the chemical tests for blood alcohol content.
The mere fact that the Department of Health selects the method of testing does not delegate to it the power to find one guilty. State v. Melcher, 655 P.2d 1169 (Wash. App. 1983). The sole authority to find a defendant guilty of violating this act remains with the judicial branch.
The appellants filed motions asking that their sentences be suspended. The trial court ruled that he did not have the authority to suspend their sentences since the sentencing provisions of the act are mandatory. §§ 75-2504 and 75-2505. Appellants contend that a general statute authorizes the trial court to suspend or probate sentences. See Ark. Stat. Ann. Title 41, Chapter 12 (Repl. 1977 and Supp. 1983). The trial court was correct because where a special act applies to a particular case, it excludes the operation of a general act upon the same subject. Saline County v. Kinkead, 84 Ark. 329, 105 S.W. 581 (1907).
The appellants do not argue, and we do not consider, the constitutionality of the provision stating that judges may not suspend execution of sentences.
Affirmed in part; reversed in part. | [
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John I. Purtle, Justice.
The Crawford County Probate Court entered an order distributing the remaining balance of the estate of J. Fred Alexander who died in 1956. We agree with the appellants that the probate court did not have jurisdiction to partition the estate as was done in the order of distribution here under consideration.
The testator left his widow one-half of his estate free and clear of all debts, taxes and other incumbrances. The other half of this estate was to pay all charges against the property and estate with the balance of the half interest of the estate to be set up in trust for testator’s children. The widow was given wide power as trustee of the estate. Her authority included invasion of the corpus if necessary. The facts of this case are set out in more detail in Alexander v. First National Bank of Fort Smith, 278 Ark. 406, 646 S.W.2d 684 (1983); Alexander v. First National Bank of Fort Smith, 275 Ark. 439, 631 S.W.2d 278 (1982) and Alexander Ex’x v. Alexander, Ex’x, 262 Ark. 612, 561 S.W.2d 59 (1978).
The only issue before us is whether the probate court had jurisdiction to make disposal of the real estate as it did.
The order of the court below concluded with the statement, “The Petition for Distribution of Real Property should be granted.” It is obvious from the disposition that the court actually partitioned the property. It had been previously determined by the trial court and approved by this court that the appellants owned 40.8% of the 4 separate farms which remained in the estate. The trust owned the other 59.2% of the real property. The mineral rights were distributed in undivided interest in accordance with the above stated interest. However, the land was not subject to precise distribution in kind. The court awarded two farms to the appellant widow and two farms to the trust and ordered the trust to pay the difference in cash. Thus the order was not a distribution but a partition which the probate court had no authority to grant. Gibson v. Gibson, 266 Ark. 622, 589 S.W.2d 1 (1979). The probate court is a court of limited jurisdiction and it must receive its powers by specific grants of authority from the legislature.
Since the case must be reversed and remanded it is unnecessary to discuss other matters argued on appeal. Although it may appear to be a waste of money and time we are bound by the law to return the case to the trial court with instructions to proceed in chancery for partition of the estate. For almost 30 years this case has languished in the courts because the appellants have generally stubbornly refused to abide by the orders of the court and the expressed intent of the testator.
Reversed and remanded.
Hickman, J., concurs.
Hubbell, C.J., not participating. | [
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Darrell Hickman, Justice.
Alva Donald Allard was convicted of aggravated robbery of the Town and Country Motel, which is south of Rogers, Arkansas. He was sentenced to 40 years imprisonment.
His conviction must be reversed because the clerk of the court read to the jury the original indictment which, in addition to the charge for aggravated robbery, included two counts of theft by receiving. This was at the beginning of the trial, and the appellant moved immediately for a mistrial, which the court should have granted because there was no way this jury could hear the case and remove from its mind the fact that the appellant was also charged with two counts of theft by receiving. The trial judge tried to admonish the jury and cure the error, but it is not the sort of error that can be so cured. He could not tell the jury it was a false statement, because it was not — the charges were pending. He could only point out that this trial was on an aggravated robbery charge. From the beginning, this defendant was not clothed with one of the constitutional benefits afforded all defendants in a criminal case, a right to a fair and impartial jury.
In Miller v. State, 239 Ark. 836, 394 S.W.2d 601 (1965), we were presented with a similar problem. The defendants had entered pleas of guilty to part of the charges in an indictment and not guilty to others. The prosecuting attorney was allowed to read that part of the charge to which the defendants had pleaded guilty. We held this was reversible error, as it destroyed the impartiality of the jury and denied the defendant due process of law. We have consistently reversed cases in which other charges or convictions were improperly brought to the attention of the jury. Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984). In two other Arkansas cases we held that the trial judge had not abused his discretion in denying a mistrial when testimony as to other offenses was introduced. However, in those cases the testimony was invited by the defense. Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984); Hayes v. State, 278 Ark. 211, 645 S.W.2d 662 (1983).
Two other arguments are raised but they are meritless. Appellant contends he was denied the constitutional right against self-incrimination in the introduction into evidence of a photograph, showing him in a ski mask, which had been rolled up, and glasses, and in his being instructed by the court to put on the glasses in the presence of the j ury. He further argues that the probative value of the picture and his wearing the glasses was outweighed by the danger of unfair prejudice.
The evidence of Allard’s guilt was substantial. There were three eyewitnesses to the robbery, all being in the motel office when it was robbed. They all identified Allard at the trial. He is an older man, in his fifties or sixties (he told an officer he was 50). He entered the motel wearing a ski mask, but it was not pulled down over his face. Instead he wore it as a toboggan (a cap), rolled up, covering only the top of his head. Allard wore glasses which had dark frames and, according to one witness, had a .25 caliber automatic pistol. Two women, who worked in the office were eyewitnesses. They were unable to make a positive identification looking at photographs; however, they described the robber to a police officer who composed a likeness using an identikit.
Apparently, nothing happened in the meantime until on July 4, when one of the eyewitnesses was in a laundromat and heard a man talking; she testified she knew it was the robber; she got a good look at him and was positive. She called her employer, who called the police. An officer came immediately to the laundromat. Allard followed the officer to the station where he was told he was suspected of the robbery, was read his rights, and interrogated. Allard denied he owned a gun or robbed the motel. He said he could not recall if he was in Rogers on the date in question. A search of his vehicle produced a green ski mask with a yellow stripe, which was identified positively by the witnesses as just like the one the robber wore. A .25 caliber automatic pistol was found in the glove compartment of the vehicle and was identified by two eyewitnesses as exactly like the one used by the robber. He was arrested after the officers found the gun. He was wearing glasses when arrested.
The defense objected to a photograph being introduced as evidence, showing Allard in the ski mask, which was rolled up and worn as a toboggan, and wearing glasses described by the eyewitnesses. The purpose of the photograph was to bolster the testimony of the eyewitnesses and show they gave good descriptions of the robber to the policemen and to the officer who created the composite using the identikit. A similar objection was made when Allard was requested to put the glasses on when one of the eyewitnesses testified and identified him. Allard did not wear glasses to the trial. The argument made in both instances was regarding the prejudicial effect only. It was purely a discretionary decision for the trial judge, and we cannot say he abused that discretion. Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973). The overwhelming weight of authority is that similar evidence is admissible. One collection of all the cases on the subject of requiring a defendant to put on clothes or assume certain poses is contained in 3 ALR 4th 374 (1981). Three Arkansas cases that bear on the point are: Urquhart v. Slate, 273 Ark. 486, 621 S.W.2d 218 (1981); Coffey v. State, 261 Ark. 687, 550 S.W.2d 778 (1977); Williams v. State, 239 Ark. 1109, 396 S.W.2d 834 (1965).
The judgment is reversed and the cause remanded for the error first discussed.
Reversed and remanded.
Purtle, J., concurs. | [
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Darrell Hickman, Justice.
On appeal the appellants argue only that Act 656 of 1983, which sets the minimum salaries of the Marshall, Arkansas, municipal court judge and clerk, is unconstitutional in that it deprives the rural citizens of Searcy County equal protection and due process under the law. That contention was not raised below. The only constitutional argument below was in the appellants’ answer where they averred that Act 656 was special or local legislation in violation of Amendment 14 to the Arkansas Constitution.
The trial court’s decision that Searcy County is liable to pay one-half of the minimum salary requirements of Act 656 is affirmed because we do not consider arguments raised for the first time on appeal, even those arguments that are constitutional in nature. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980).
Affirmed. | [
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Temporary Writ of Mandamus is granted. The bondsman may surrender the defendant without cause pursuant to Ark. Stat. Ann. § 43-716 (Repl. 1977) only if the consideration for making the bond is returned to the defendant.
Adkisson, C.J., Purtle and Hays, JJ., concur.
George Rose Smith, J., dissents. | [
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Webb Hubbell, Chief Justice.
Appellants Robert Bruce McQueen and Charles Edward Kelly were each charged in the Washington County Circuit Court with several counts of aggravated robbery and theft of property. Following a motion for severance, appellants were tried separately. Appellant McQueen was convicted of four counts of aggravated robbery and four counts of theft of property and sentenced to sixty years imprisonment. Appellant Kelly was convicted of five counts of aggravated robbery and five counts of theft of property and was sentenced to two hundred years imprisonment. The convictions are consolidated for appeal.
On January 25, 1983, an employee of a Spee-Dee Mart was held up by a man wearing a red ski mask and a tan corduroy jacket and carrying a silver western-style gun. The man told the employee to take all the money, which totalled about $300.00 in cash, and put it in a sock. On February 10, 1983, the same clerk was held up again by a similar looking man wearing a blue coat and red ski mask and carrying the same type gun who took approximately $150.00 in cash from the store. On February 5, 1983, an employee of Wilco Food Mart was held up by a man wearing a red ski mask and a brown jacket and carrying a chrome-plated revolver. On February 25, 1983, an employee of a Conoco station was robbed by a man wearing a red ski mask, a beige corduroy jacket and carrying a silver-plated western-style pistol. Approximately $600.00 in cash was taken from the station. After the man left, the employee heard a car start and leave the area. On March 25, 1983, an employee of Economy Liquor Store was robbed by two men. The shorter man was wearing a blue jacket and ski mask and carried a chrome- plated revolver; the taller man was wearing a brown jacket and a ski mask and carried a .22 caliber rifle. The shorter man asked for money and took cash in the amount of about $2,600.00. After the man left, the employee observed a Cordoba automobile with a dark top and white body leaving the scene.
On appeal, appellant McQueen argues that his conviction should be reversed because the only evidence presented by the State to connect him to the crimes charged was his confession in which he admitted he was a partner in four of the armed robberies. McQueen contends that because there was no corroboration of his confession by independent evidence, he is entitled to reversal. A confession of a defendant must be accompanied by other proof that the offense was committed. Ark. Stat. Ann. § 43-2115 (Repl. 1977). The State need only prove, however, that the crime was committed by someone. Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981); Deering v. State, 273 Ark. 347, 619 S.W.2d 644 (1981). The testimony of the employees of the four stores which were robbed provided ample proof that the crimes had been committed.
In addition, there was circumstantial evidence that pursuant to a valid search warrant officers seized from McQueen’s trailer a green backpack which contained a brown corduroy jacket and red ski mask which were identified as being exactly like those worn during the robberies. The police also obtained two coats and a .25 caliber gun from appellant’s brother. McQueen’s confession indicated that he took those items to his brother’s house after the last robbery. The two coats and the gun were identified as being identical to those involved in the robbery at Economy Liquor Store. McQueen also owned a 1976 Cordoba. A Cordoba was specifically identified as having been driven away from Economy Liquor just after the robbery.
Finally, McQueen’s stepson testified that McQueen and Kelly would take a knapsack containing a jacket, ski mask and gloves and leave together at night. The next day he would see an article in the newspaper about a robbery having taken place. The stepson also identified a .22 pistol that belonged to McQueen which was identified as having been used in some of the robberies. Evidence is no less substantial because it is circumstantial. Surridge v. State, 279 Ark. 183, 650 S.W.2d, 561 (1983). Appellant McQueen’s argument that there was no corroboration of his confession is without merit, and we affirm his conviction.
Appellant Kelly argues that the trial court erred in its refusal to suppress $640.00 cash seized at his residence pursuant to a legally valid search. The cash seized was not itemized on the warrant although the officer had knowledge that cash had been taken at the robberies and Kelly had been seen with a large roll of cash.
The plain view doctrine permits the admission of seized evidence if: (1) the initial intrusion was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent. A.R.Cr.P. Rule 14.4. Heard v. State, 272 Ark. 140, 144, 612 S.W.2d 312 (1981); Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977). There was no argument made by the appellant that the search did not take place pursuant to a valid warrant or that the cash was not discovered inadvertently; thus, the only issue for the trial court’s consideration was whether the incriminating nature of the bundle of money was immediately apparent. The $640.00 was found in the upstairs portion of the house where appellant Kelly had a bedroom. The officers conducting the search knew that cash had been taken in the robberies of the Spee-Dee Mart, Wilco Food Mart, the Conoco station, and Economy Liquor Store. They had also received information before the search that one of the subjects had a large roll of cash in his pocket.
It was within the province of the trial court to weigh these facts in determining whether the incriminating nature of the roll of cash was apparent to the officers who discovered it. We must affirm the trial court’s determination of admissibility unless its decision is “clearly against the preponderance of the evidence.” State v. Osborne, 263 Ark. 554, 566 S.W.2d 139 (1978). The trial court is in the best position to weigh all the factors relating to admissibility, including the credibility of the testimony, the nature of the offense, the economic condition of the premises being searched, and other factors in determining whether an item seized is incriminating in nature.
In Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977), a drug related search was conducted pursuant to a warrant. While on the premises officers seized a plastic bag containing $807.00 along with other items of stolen property. We reversed the conviction on the two counts of theft by receiving because there was no testimony that the discovery of stolen goods was inadvertent and there was no showing that the officers making the search had knowledge of any particular stolen items at appellant’s residence. Therefore, the incriminating nature of the articles seized was not immediately apparent.
In this case, there was testimony that the discovery of the $640.00 was inadvertent. The officer who discovered the cash knew that a large sum of cash had been stolen and also knew that appellant Kelly had been seen with a large roll of cash even though there is nothing in the record to suggest that the officers went to the residence to look for cash. However, once they were on the premises and came upon the roll of cash, the trial court’s determination that the incriminating nature of the $640.00 was immediately apparent is not clearly against the preponderance of the evidence. We also affirm appellant Kelly’s conviction.
Affirmed. | [
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John I. Purtle, Justice.
This is an appeal from the Circuit Court of Independence County where appellant was convicted of driving while under the influence of intoxicating liquor. The issue on appeal is whether appellant was in "actual control’ ’ of his vehicle within the meanings of the DWI Statute. We hold that he was not.
On October 31, 1982, appellant was found asleep in his automobile which was parked with the motor not running, in the driveway of a business near the highway. His keys were in the seat of the vehicle by appellant’s side. At the time of the alleged offense Ark. Stat. Ann. § 75-1027 was in effect and reads as follows: "It is unlawful and punishable as provided in Section 3 [§ 75-1029] of this Act for any person who is under the influence of intoxicating liquor to drive or be in actual control of any vehicle within this State.”
Under the circumstances of this case we hold that appellant was not in actual control of his vehicle within the meaning of the statute. He may not have been the person who drove the vehicle to where it was parked. If he drove it to the place where it was found he may have become intoxicated later. Criminal laws are to be strictly construed in favor of the accused. Lewis v. State, 220 Ark. 259, 247 S.W.2d 195 (1952). We are without authority to declare an act to come within the criminal laws of this state by implication. Lewis v. State, supra.
Reversed and dismissed.
Adkisson, C.J., and Hickman, J., concur.
Dudley, J., not participating. | [
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George Rose Smith, Justice.
J. H. Brown brought this suit in 1982 to obtain partition of a 55-acre tract of land in Saline County. The complaint alleged that Brown and Dr. Harlan H. Hill owned the land as tenants in common at the time of Dr. Hill’s death in 1965, that Mrs. Hill received her husband’s half interest under his will, and that Brown was entitled to partition. Mrs. Hill’s answer denied that Brown had any interest in the land and asserted title in Mrs. Hill by adverse possession and by reason of Dr. Hill’s having acquired whatever interest Brown had had in the property.
Upon trial the chancellor found the issues in Brown’s favor. The court ordered partition by public sale, with Mrs. Hill to be reimbursed for her mortgage and tax payments. For reversal Mrs. Hill argues that she proved title by adverse possession and the court erred twice in excluding testimony about Dr. Hill’s acquisition of Brown’s half interest. Our jurisdiction is under Rule 29 (1) (c), an issue being the interpretation of a Uniform Rule of Evidence.
First, the proof is insufficient to sustain a claim of adverse possession as between tenants in common. Brown and Hill bought the property in 1963, each paying half of the $4,000 down payment. Several monthly payments were made from a Brown & Hill partnership bank account. The record title was still in the two names at Hill’s death in 1965. Mrs. Hill, however, included the entire tract in her inventory of the estate, paid the outstanding mortgage, and has paid the taxes every year. Although the land is fenced, it does not have a dwelling on it, is largely pastureland, and has not been in anyone’s actual possession for seven successive years.
Tenants in common each have an equal right to possession; so one tenant’s possession is deemed permissive and does not become adverse until he gives actual notice of a hostile claim to his cotenant or commits such open acts of hostility that knowledge of his adverse claim must be presumed. Hirsch v. Patterson, 269 Ark. 532, 601 S.W.2d 879 (1980). We infer from the inventory that Mrs. Hill and Griffin Smith, the attorney for the estate, did not know the state of the record title. Mrs. Hill herself made no claim of ownership to Brown. Smith testified that after Hill’s death he talked to Brown about some farm equipment, that he told Brown that the estate did not recognize any interest or claim he might have, and that “I did tell him that if he had any evidence of ownership, I’d be happy to look it over and there was no intention to bar him from any rights that he might have.” Those statements do not amount to the flat assertion of absolute ownership that the law requires as between tenants in common.
The two remaining arguments for reversal pertain to the admissibility of Mrs. Hill’s hearsay evidence that Hill purchased Brown’s half interest. Brown denies such a purchase. He testified that he used to see Hill two or three times a week and had a good relationship with him. He said that after the two men bought the land he cleared up the property, had a pond put in, sowed and fertilized grass in the pasture, repaired the fences, and installed a gate. He said Hill told him just b.efore his death that he need not make payments on the note or the taxes.
Counsel for Mrs. Hill first sought to rebut Brown’s proof by calling Mrs. Hill and Smith to testify that after Hill’s death they had each seen a $2,500 check among Hill’s papers, with a notation on the check or on the stub that it was for Brown’s interest in the land. That testimony was inadmissible. Its only purpose was to show that Hill had made a written statement on the check or stub that he had bought Brown’s interest in the land. Such a statement falls squarely within the statutory definition of hearsay and was properly excluded. Uniform Evidence Rule 801, Ark. Stat. Ann. § 28-1001 (Repl. 1979).
Second, it is argued that the court should have allowed Mrs. Hill and Smith to testify that before Hill’s death he told each of them that he had bought Brown’s interest in the land. Counsel concedes that the proffered proof is hearsay and does not fall within any of the common-law exceptions to the hearsay rule that are enuimerated in Uniform Rules 803 and 804. It is insisted, however, that Hill’s statements should be treated as coming within a brand-new exception inserted at the end of both those Rules. The new paragraphs read as follows:
Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more, probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statements into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
The new paragraph does not spell out a specific exception to the general prohibition against hearsay. Instead, it lists several matters to be considered as conditions to the admissibility of hearsay not falling within a recognized exception. The substance of this catch-all provision was added by Congress when it adopted the Federal Rules of Evidence. The provision was not intended to throw open a wide door for the entry of judicially created exceptions to the hearsay rule. To the contrary, the new exception is to be narrowly construed. That is made plain by this paragraph in the report of the Senate’s Advisory Committee:
It is intended that the residual hearsay exceptions will be used very rarely, and only in exceptional circumstances. The committee does not intend to establish a broad license for trial judges to admit hearsay statements that do not fall within one of the other exceptions contained in rules 803 and 804 (b). The residual exceptions are not meant to authorize major judicial revisions of the hearsay rule, including its present exceptions. Such major revisions are best accomplished by legislative action. It is intended that in any case in which evidence is sought to be admitted under these subsections, the trial judge will exercise no less care, reflection and caution than the courts did under the common law in establishing the now-recognized exceptions to the hearsay rule.
S. Rep. No. 93-1277, 93rd Cong., 2ndSess. 1,20, reprinted in 1974 U.S. Code Cong. & Ad. News 7051, 7066.
The cases that have been decided under the new rules have given weight to the views expressed by the congressional committee. Two cases in particular deserve mention. The first preceded the Federal Rules, but it was cited by the committee as illustrative of the purpose of the residual exception. Dallas County v. Commercial Union Assur. Co., 286 F.2d 388 (5th Cir. 1961). The issue was whether or not charred timbers in the dome of a courthouse, which had collapsed, had been burned by lightning. The court approved the introduction of a newspaper account, printed 58 years earlier, describing a fire in the new courthouse being constructed. Although the news story did not fit any exception to the hearsay rule, the court admitted it and stressed its obvious trustworthiness: “It is inconceivable to us that a newspaper reporter in a small town would report there was a fire in the dome of the new courthouse — if there had been no fire.”
A second case, decided under the Federal Rules, is United States v. Medico, 557 F.2d 309 (2nd Cir. 1977). There a bank employee was allowed to testify that about five minutes after the bank had been robbed, he answered a knock on the bank’s door by a man he merely recognized as a bank customer. The bank employee, upon opening the door, saw a young man sitting outside in a car giving the customer the make and license number of the getaway car. The customer relayed the information to the witness, who wrote it down on his checkbook. Although the identity of the bank customer and of the young man could not be determined, the court emphasized the reliability and probable accuracy of the witness’s testimony in allowing him to narrate the incident.
Both these cases carried out the intent giving rise to the new residual exception. All the common-law exceptions to the hearsay rule are based either upon necessity or upon some compelling reason for attaching more than average credibility to the hearsay. A statement against interest, for example, is accepted because whatever a person says to his own disadvantage is apt to be true. Consequently any new exception must have, in the language of the Rule, circumstantial guarantees of trustworthiness equivalent to those supporting the common-law exceptions.
In the case at bar the testimony rejected in the trial court would have shown that Hill had said he had acquired Brown’s interest. Far from such a statement’s being attended by inherent guarantees of its trustworthiness, the opposite is true. Hill’s statement was self-serving. He could not be cross-examined about it. The proffered hearsay could readily have been fabricated. We discern no basis for applying the new residual exception in this case. The trial court was right in excluding the testimony.
Affirmed.
Dudley, J., not participating. | [
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John I. Purtle, Justice.
Appellant was convicted by the Grant County Circuit Court for violation of the Game and Fish Commission’s regulations relating to the use of fishing nets. The trial court held that Ark. Stat. Ann. § 47-411(F) (Repl. 1977) was unconstitutional inasmuch as it attempted to override Amendment 35 to the Arkansas Constitution which authorizes the Game and Fish Commission to regulate, control and manage the fish, game and wildlife resources of the State. Appellant argues that the court erred in holding Ark. Stat. Ann. § 47-411(F) unconstitutional. He argues in the alternative that if the statute is unconstitutional, he had the right to rely on the statute until it was declared unconstitutional and was therefore not guilty of the charges against him. We do not agree with appellant’s arguments.
The facts of this case are not disputed. The illegal nets owned and used by appellant were in a private impoundment known as Clearwater Lake. The appellant and other property owners adjacent to the lake were joint owners. The nets here in question were in the water immediately behind the appellant’s back yard.
This court has already held that Amendment 35 gives the Game and Fish Commission exclusive authority to regulate sale of fish from private waters. The Legislature is divested of powers to regulate fish and wildlife except for making appropriations and to increase annual resident hunting and fishing licenses. Farris v. Arkansas State Game and Fish Commission, 228 Ark. 776, 310 S.W.2d 231 (1958). In Farris we held that fish farmers may utilize the fish raised in domestic waters for any purpose they desired, so long as it was not in violation of the regulations of the Game and Fish Commission.
The only undecided issue in this case is whether appellant is entitled to the protection of the unconsti tutional statute. By enacting Ark. Stat. Ann. § 47-411(F) the General Assembly attempted to prohibit the Game and Fish Commission from regulating the harvesting of fish from privately owned waters. The facts of this case clearly establish Clearwater Lake as waters excepted by the statute from regulation by the Game and Fish Commission. The General Assembly has simply been divested of this power by Amendment 35. Arkansas Stat. Ann. § 41-206(3)(a) (Repl. 1977) allows an affirmative defense to violations of statutes, afterwards determined to be invalid, provided the actor engaged in the conduct in reasonable reliance upon the validity of the statute. In the present case the actor was not aware of the existence of the statute at the time of the violation. Appellant’s argument here that he relied upon Ark. Stat. Ann. § 47-411(F) is too late. Even if the constitutionality of the Act had been argued below he could not prevail because the record clearly reveals he neither relied upon the invalid statute nor did he plead it as an affirmative defense. Finley v. State, 282 Ark. 146, 666 S.W.2d 701 (1984).
Affirmed. | [
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Per Curiam.
Petitioner Billy Joe Walker was convicted in circuit court of theft by receiving and sentenced as a habitual offender to 30 years imprisonment. A fine of $15,000 was also imposed. He appealed the conviction to the Court of Appeals. Before the Court of Appeals rendered a decision, petitioner asked that the appeal be dismissed so that he could proceed under A.R.Cr.P. Rule 37. The Court of Appeals granted the motion, noting that petitioner would have to proceed in the Supreme Court for postconviction relief.
Rule 37.2 (a) provides:
If the conviction in the original case was appealed to the Supreme Court or Court of Appeals, then no proceedings under this rule shall be entertained by the circuit court without permission of the Supreme Court.
The rule does not specify whether “appealed” denotes simply filing a notice of appeal or denotes only those cases affirmed on appeal, but we interpret it to mean that a case must be affirmed before it becomes necessary to have our permission to proceed in circuit court. If an appeal is dismissed before final disposition, jurisdiction returns to the trial court to consider petitions for postconviction relief.
Accordingly, since petitioner does not need our permission to file a Rule 37 petition in the circuit court, this petition is dismissed without prejudice.
Petition dismissed. | [
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P. A. Hollingsworth, Justice.
This case presents the sole issue of the proper amount of attorneys’ fees to be awarded the appellant’s attorneys. The facts giving rise to this appeal are as follows. The appellant had a $130,000 insurance policy through the appellee, insuring his chicken house against direct loss by hail. In January 1978, the appellant’s chicken house collapsed after being covered with an accumulation of sleet. The appellee refused to pay for the loss, contending that sleet was not covered by the policy. The appellant then filed suit which resulted in a jury verdict in favor of the insurance company. Appellant then appealed to this Court and we reversed, holding that sleet and hail were synonymous under the insurance policy. Southall v. Farm Bureau Mutual Insurance Co. of Ark., 276 Ark. 58, 632 S.W.2d 420 (1982). Appellee then tendered its policy limits, $130,000, plus a twelve percent statutory penalty, $15,600, and six percent interest from sixty days after the date of the loss, $37,978, a total of $183,578. The question of attorneys’ fees was submitted to the trial court, and after holding a hearing in which expert testimony and other evidence was presented, the court granted appellant attorneys’ fees of $40,944. The appellant is appealing that award, claiming it is inadequate. The appellee has filed a cross-appeal claiming the award is grossly excessive. This appeal is before us under Sup. Ct. R. 29 (l)(j) as it involves a case which has previously been appealed to this Court.
Appellant asks us to award an amount in attorneys’ fees of $73,431 (forty percent of $183,578) because this amount would fully reimburse him under his fee agreement with his attorneys. While appellant does not propose that we adopt a rule whereby we simply ratify the plaintiff’s fee contract once liability has been found in insurance cases, he does urge us to adopt what the trial court characterized as the “made whole theory” for his case. The trial court rejected the theory that the governing statute requires the appellant to receive a complete recovery so as to recover fees in accordance with the contract into which he and his attorneys entered. We affirm on both the appeal and cross-appeal.
The Legislature, not the courts, enacted Ark. Stat. Ann. § 66-3238 (Repl. 1980) providing for an award of a reasonable attorney’s fee against an insurer who wrongfully refuses to pay under an insurance policy. Our task is simply to carry out this legislative command. The computation of allowable attorneys’ fees under the statute is governed by familiar principles. These factors include the experience and ability of the attorney and the time and work required of him, the amount involved in the case and the results obtained, the fee customarily charged in the locality for similar legal services and whether the fee is fixed or contingent. Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 514 S.W.2d 224 (1974). While courts should be guided by these factors, we have consistently held there is no fixed formula to be used in determining the reasonableness of a fee. New Hampshire Ins. Co. v. Quilantan, 269 Ark. 359, 601 S.W.2d 836 (1980); Federal Life Insurance Company v. Hase, 193 Ark. 816, 102 S.W.2d 841 (1937).
Appellant urges us to adopt a “made whole’’ result here because the fee requested passes the test of reasonableness in view of the factors in Rummell, and the fee represented the best offer from among the several lawyers he consulted. We do not read our cases to require us to compute fees mechanically and without question on the basis of a fee contract between the parties. It remains our duty to fix a fee that is reasonable. Automatic acceptance of a lawyer’s contract with a client would be an abdication of our duty to supervise the conduct of the bar and do justice to the losing as well as the winning side. Avalon Cinema Corporation v. Thompson, 506 F. Supp. 526 (E.D. Ark. 1981).
There was an evidentiary hearing in the trial court which primarily consisted of the testimony of appellant’s attorneys and two other local attorneys. The testimony that was elicited reflected that the attorneys were highly respected in the legal community. There was also testimony and evidence about the number of hours spent. On this factor the trial court’s task would have been aided had the time records of Mr. Jackson and Mr. Miller, the appellant’s attorneys, been more precise. Time apparently was added up for blocks or groups of dates and services, and since appellant had the burden of proof on the issue of attorneys’ fees, the trial court could not assume that certain types of services would require a certain amount of time. The award of an attorney’s fee is a matter for the sound discretion of the trial court and in the absence of abuse, its judgment will be sustained on appeal. Rummell, supra. In reviewing the record before us, we conclude that the fee as awarded by the trial court was appropriate.
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Steele Hays, Justice.
This is an appeal brought by Carl Linell from a conviction for the capital murder of Charles and Louise Misho and the attempted capital murder of Austin Patterson, who survived a bullet wound to the stomach. All three were shot with a small caliber weapon around 7:00 p.m. on January 12, 1983 during the commission of an aggrevated robbery outside the 79 Bar and Grill in Pine Bluff.
Five days later Carl Linell, Carvin Thompson and Mamie Guy Curry were charged with the crimes. Thompson entered into a plea agreement for a sentence of life without parole and agreed to testify for the state. Linell was tried on July 11,1983, convicted and sentenced to life without parole for two counts of capital murder and twenty years for attempted capital murder, the sentences to run consecutively. Charges against Mamie Guy Curry were dismissed for lack of evidence. The appellant raises seven points for reversal, none of which are persuasive.
Carl Linell argues the trial court abused its discretion by not excusing one of the jurors for cause. The juror had indicated on a questionnaire that his business had been robbed and there had been acts of violence against his family. When asked if these events would make him predisposed about crime one way or another, the juror responded, “No, in a case like this, as serious as it is, I certainly wouldn’t be predisposed.” He said that he was not biased and would be fair and impartial. Appellant contends there is a clear assumption that the juror was biased and as he had used all his peremptory challenges, it was reversible error to hold a biased juror competent. The cases appellant cites to support his contention involved implied, rather than actual, bias. Implied bias arises by implication of law and its liberally construed in criminal cases. See Ark. Stat. Ann. § 43-1920; Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Henslee v. State, 251 Ark. 125, 471 S.W.2d 352 (1971). An entirely different standard applies to actual bias, which is the issue here. When actual bias is in question, the qualification of a juror is within the sound discretion of the trial judge because he is in a better position to weigh the demeanor of the prospective juror’s response to the questions on voir dire. Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983). Jurors are assumed to be unbiased and the burden of demonstrating actual bias is on the appellant. Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1953). In Jeffers we found no proof of bias where jurors on appellant’s panel had also served as jurors in a trial for the murder of the prosecutrix’s sister, and in Allen we found no abuse of discretion in the court’s refusal to excuse veniremen who knew two police officers expected to testify, but who could lay aside their friendship and weigh the testimony as that of a stranger.
Appellant Linell has not demonstrated actual bias and asks that we assume such bias was present. The juror was questioned on the issue and his responses were satisfactory to the trial judge. On review we are not in a position to assume actual bias, or to say that the trial court’s discretion was abused in holding otherwise.
The second and third arguments are essentially one. Linell contends his cross examination of accomplice Carvin Thompson on prior inconsistent statements about the shooting was unduly restricted and this denied him the right to be confronted with the witnesses against him under the Sixth Amendment to the Constitution. The appellant complains that he should have been permitted to cross examine Thompson on the statements to point out for the jury the incorrect details in each statement and how Thompson’s story changed as he was fed information by the police. He cites Arkansas Uniform Rules of Evidence, Rule 613 (b) and previous cases to support his position. Rule 613 (b) provides in pertinent part:
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require.
Neither the rule nor the cases support the arguments. Rule 613 (b) provides for the introduction of prior inconsistent statements and gives the witness the opportunity to deny or explain the statements, which was done in this case. The cases cited only support the theory of application of Rule 613 (b) and neither the statute nor those cases give any support for the type of cross examination appellant argues is appropriate.
All prior statements were read to Thompson, which he acknowledged and admitted were not true. He was cross examined on the circumstances surrounding the statements and the court allowed considerable latitude before limiting the questioning, including the repeated suggestion that Thompson’s statements were influenced by the police. In Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980), a similar argument was made by the appellant as to undue restriction of cross examination while impeaching the state’s witness, the victim. The trial court sustained the objection to a question it found repetitious and argumentative and we upheld the ruling. We noted Ark. Unif. R. Evid. 611 (a) gives the trial court reasonable control over the mode of interrogating witnesses so as to avoid needless consumption of time and to protect the witness from harassment. The appellant has provided no supporting authority, nor does he show how his defense would have been fostered by this line of questioning. The issue he wanted was brought before the jury and the most that can be said of the point is that he was not permitted to question as extensively as he might have liked. But that right is not unlimited where discretion is not abused.
Appellant suggests that he was entitled to introduce evidence of other robberies committed by Carvin Thompson for which the state had elected not to file charges. But neither the proffer nor the ruling appear in the abstract and we will not consider the argument. Rule 9 (d) Rules of the Supreme Court and the Court of Appeals. Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982); Byers v. State, 267 Ark. App. 1097, 594 S.W.2d 252 (1980); Vail v. State, 267 Ark.App. 1078, 593 S.W.2d 491 (1980); Ellis v. State, 267 Ark.App. 690, 590 S.W.2d 309 (1979).
Two other closely related points are treated as one: Appellant’s motion for a directed verdict should have been granted because the testimony of the accomplice, Carvin Thompson, was not sufficiently corroborated and because the evidence did not support the verdict. The arguments are lacking, however, as there was substantial evidence to support the verdict and appellant’s connection with the crime was established by proof beyond that supplied by the accomplice.
Carvin Thompson testified that he and the appellant had been drinking beer and playing dominos with Mamie Guy Curry at Eva Cato’s house on January 12. Sometime around dark, he said, Mamie, appellant and he left to go to a liquor store on Highway 79. He had a shotgun and Linell had a pistol and while Mamie Guy Curry was in the liquor store they decided to rob someone. After walking Mamie Guy Curry to Eva Cato’s house they went back and waited near the 79 Bar and Grill. When a pickup truck pulled in Linell shot both occupants of the truck (the Mishos) and a third individual (Patterson) who came out of the bar to investigate the noise. They ran back to Eva Cato’s house with the purse and billfold of the victims, where they removed their clothing, which Mamie Guy Curry concealed in a bathroom cabinet. The purse was placed behind a couch and later retrieved by Linell.
Appellant relies on our statute, Ark. Stat. Ann. § 43-2116 (Repl. 1977):
A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. Provided, That in misdemeanor cases a conviction may be had upon the testimony of an accomplice.
The test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice is disregarded, there is other, independent evidence to establish the crime and connect the defendant with its commission. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983);Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960). The corroborating evidence may be circumstantial, so long as it is of a material nature and tends to connect the defendant with the crime. Pollard v. State, 264 Ark. 753, 574 S.W.2d 656 (1978); Roath v. State, 185 Ark. 1039, 505 S.W.2d 985 (1932). False statements to the police by the defendant may constitute corroborating evidence. Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980).
The independent evidence of Linell’s involvement in the crime is entirely sufficient. The victims were shot with the pistol which was in his possession, according to Eva Cato’s testimony, immediately after Linell and Thompson returned to her house from what had been thought to be a trip to the liquor store. She said they both removed their outer clothing, which was hidden, and Mamie Guy Curry concealed Linell’s pistol in her bra. She said Linell put a woman’s purse behind her couch and took it with him when he left. Linell gave conflicting versions to the police of his whereabouts on the evening of the crimes and other evidence placed him in the vicinity of the crimes at the time they occurred. We have no difficulty in determining that independent, material evidence was offered which connected appellant to the crimes for which he was convicted.
Finally, appellant insists the trial court erred in seating a death qualified jury, citing Grigsby v. Mabry, 569 F. Supp. 1273 (1983). However, we have rejected the premise of death qualified juries in several cases, notably in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983).
We find no prejudicial error in any other matters brought to our attention under Rule 11 (f).
Affirmed.
Purtle and Hollingsworth, JJ., dissent.
Eddington v. State, 225 Ark. 929, 286 S.W.2d 473 (1956); Comer v. State, 222 Ark. 156, 257 S.W.2d 564 (1953); Humpolack v. State, 175 Ark. 786, 300 S.W. 426 (1927); Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889). | [
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BRANDON J. HARRISON, Judge
hMagaly Delacruz appeals the termination of her parental rights to her two children, A.B. and A.D. In particular, she challenges the circuit court’s finding that termination of her parental rights was in the children’s best interest. We affirm.
In August 2013, the Arkansas Department of Human Services (DHS) petitioned for emergency custody of four-year-old A.B. and three-year-old A.D. after their mother, Delacruz, was arrested for endangering the welfare of a minor, criminal trespass, domestic battery, and interference with emergency communication. Delacruz also tested positive for methamphetamine at the time of her arrest. The Washington County Circuit Court placed the children in the custody of Anna and Jose Guevara, family friends with whom Delacruz and the children had been living, and ordered Delacruz to have no contact with | ¡.either the children or the Guevaras. In the probable-cause order, the court noted that the Guevaras had a “secondary guardianship” of the children as a result of a 2009 Family in Need of Services case. The court required Delacruz to pass three random and consecutive drug screens before she would be allowed visitation with the children.
The children were adjudicated dependent-neglected in October 2013 due to parental unfitness. Delacruz was ordered to participate in individual counseling, have a drug-and-alcohol assessment and follow the recommendations, submit to random weekly drug screens, obtain and maintain stable housing and employment, and pay child support in the amount of $74 bi weekly. The children remained in their placement with the Guevaras.
A review hearing held in February 2014 revealed that Delacruz was incarcerated, and the court noted- that she had not complied with any of the court’s orders or the case plan. The court continued its previous orders for Delacruz and the no-contact order between her and the children. The court also authorized visitation with the maternal grandparents and the maternal aunt every other Sunday, subject to the Guevaras’ approval, and noted that “[o]nce day visits go well, if [the] Guevaras agree, visits can be overnight for one night, with Delacruz grandparents.”
After a permanency-planning hearing in July 2014, the court changed the goal of the case to adoption. The permanency-planning order noted that Delacruz had been incarcerated since 24 October 2013 and had not complied with any of the court’s orders or the case plan. The order also noted that visitation between the maternal grandparents and the children “may continue at the discretion of the Guevar-as.” DHS filed a petition |sfor termination of parental rights in August 2014, alleging three statutory grounds. On 30 October 2014, Delacruz filed a motion for visitation, explaining that she had been released from prison on 22 August 2014 “and since that time has been in compliance with all the court orders and the case plan, making significant progress toward completion of all requirements.” Delacruz requested that she be allowed to attend visitation with the maternal grandparents and that visitation be allowed every Sunday. This motion was not ruled on, however, and the termination hearing was held on 24 November 2014.
Miranda Collins, the DHS caseworker on this case, testified that Delacruz had not started or completed any services before her incarceration in October 2013 and that, since her release from prison, she had been partially compliant with the case plan but had still not completed a drug- and-alcohol assessment or submitted to weekly drug screens. She explained that Delacruz had not seen the children in fifteen months, including the two and a half months after the children had been taken into custody but before she was incarcerated. Collins opined that Delacruz had not progressed in reunification or demonstrated the ability to protect the children. She also stated that the Guevaras were interested in adopting the children.
On cross-examination, Collins stated that she had not observed any of the visits between the grandparents and the children. She explained that when the case was opened, DHS did not approve placement of the children with the grandparents because there was a true finding from 1994 on the maternal grandmother for cuts, bruises, and welts; substance-abuse possibility; and abuse with a deadly weapon. She stated that she did not know if DHS would have approved placement with the grandparents if the true | ¿finding had not been there. She also expressed concern about where the children would sleep if placed with the grandparents.
Jose Guevara testified that he wanted the children to remain in his custody and to pursue adoption. He acknowledged that the children visited the maternal grandparents once a week, which was “fine,” but stated that he and his wife did not want that relationship to continue. He stated that the grandparents had not provided any support for the children but that they had bought toys or clothes for the children on occasion.
Roberta Delacruz, the maternal grandmother, introduced a notification from DHS, dated 17 November 1994, stating that there was no credible evidence of child maltreatment with regard to her and her husband. Roberta testified that she saw the children every other week but “would like to see them all the time.” She also agreed that she and her husband had not provided monetary support for the children but that they had bought toys and clothes.
Delacruz testified that since her release from prison on August 22, she had passed several drug screens and maintained employment. She expressed her wish to follow the case plan and get her children back and opined that she could provide a safe and stable home for the children. Delacruz stated that she had been paying her court-ordered child support of $74 biweekly since August but that she was a year behind on payments and that her work schedule had prevented her from obtaining a drug-and-alcohol assessment or submitting to weekly drug screens.
Julie Moody, the CASA volunteer assigned to the case, testified that she had visited the children in the Guevaras’ home and that she had no concerns about the living |,^conditions or the Guevaras’ ability to meet the children’s health and safety needs. She also testified that she had observed visits with the maternal grandparents and that, in her opinion, continued visits with the grandparents were not in the best interest of the children “because of statements made by [A.B.].” Finally, Moody opined that Delacruz was not in a position to adequately care for the children because, she had not maintained stable housing or employment for an adequate period of time.
After hearing closing arguments from counsel, the court found that Delacruz was not in compliance with the court’s orders and was unfit. It also found that any further contact with Delacruz could be harmful to the children’s health and safety. The court ordered no further contact with the maternal grandparents. In the termination order, the court reiterated that there would be “no contact and no closure visit between the juveniles and the maternal grandparents.” Delacruz appeals.
A circuit court’s order that terminates parental rights must be based on findings proved by clear and convincing evidence. Ark.Code Ann. § 9-27-341(b)(3) (Supp. 2011); Dinkins v. Ark. Dep’t of Human Seros., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is proof that will produce in the fact-finder a firm conviction on the allegation sought to be established. Dinkins, supra. On appeal, we will not reverse the circuit court’s ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. \RId. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the circuit judge to assess the witnesses’ credibility. Id.
Here, Delacruz does not challenge the statutory grounds for termination, nor does she challenge the circuit court’s findings on potential harm or adoptability. Instead, she argues that in determining best interest, the circuit court can consider additional factors, including the loss of a relationship with a grandparent, and that in this case, it was not in the children’s best interest to “abruptly terminate the relationship between the children and their maternal grandparents” via the termination of her parental rights. She takes issue with the testimony of Miranda Collins, the DHS caseworker, who failed to provide “factually sound evidence” to support the circuit court’s best-interest deter mination, and she also criticizes the fact that there was “no evidence ... in regard to the children’s wishes or the depth of their relationship with the grandparents or the Guevaras.” (Emphasis in original.) She also contends that the maternal grandparents provided material support, in the form of clothes and toys, and emotional support throughout the case and had unsupervised visitation with the children.
In support, Delacruz cites two cases: Caldwell v. Arkansas Department of Human Services, 2010 Ark. App. 102, 2010 WL 374482, and Lively v. Arkansas Department of Human Services, 2015 Ark. App. 131, 456 S.W.3d 383. In both cases, this court held that termination of a father’s parental rights was not in the children’s best interest, in part due to close relationships between the children and the paternal grandparents.
DHS argues that Delacruz abandoned any argument regarding the children’s adoptability and that the evidence supports the court’s finding of potential harm. DHS 17also distinguishes Caldwell and Lively, noting that in those cases, only the fathers’ parental rights were terminated and the mothers remained the children’s permanent custodians, meaning that adoption was not a goal in those cases. In this case, however, the goal was adoption, and the rights of the mother and the putative fathers were terminated.
Regarding Delacruz’s evidentiary concerns, she did not object to Collins’s testimony and offered no evidence of her own as to the children’s wishes or the depth of their relationship with the grandparents. We also agree with DHS that the cases cited by Delacruz are distinguishable; not only did those cases involve only one parent’s rights being terminated, but also the grandparents were significantly involved in the children’s lives. In Caldwell, we explained that “the termination of appellant’s rights endangers A.C.’s relationship with her grandmother, Sharon Caldwell, which the circuit court found to be the most stable influence on A.C. Both the DHS caseworker and Lisa Caldwell testified that it was in A.C’s best interest that the relationship between Sharon Caldwell and A.C. continue.” 2010 Ark. App. 102, at 7, 2010 WL 374432. And in Lively, we noted that “the children’s relationship with their paternal grandparents appears to be one of the most stable influences in their lives, and termination of Jonathan’s parental rights jeopardizes that relationship.” 2015 Ark. App. 131, at 8, 456 S.W.3d 383, 388.
In this case, Delacruz failed to demonstrate a close bond between the children and the maternal grandparents. In fact, contrary to the facts in Caldwell, the circuit court heard testimony that continued visits with the grandparents would not be in the children’s best interest. We are not persuaded by Delacruz’s argument and hold that the circuit court did not clearly err when it terminated Delacruz’s parental rights.
| RAffirmed.
Gruber and Vaught, JJ., agree.
. There is no explanation in the record of the content of A.B.’s statements. | [
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PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [SALINE COUNTY CIRCUIT COURT, NO. 63CR-09-315]
PER CURIAM
bln 2010, David L. Vance was found guilty of raping his fourteen-year-old daughter and was sentenced to 240 months’ imprisonment. We affirmed. Vance v. State, 2011 Ark. 392, 384 S.W.3d 515. Vance then filed in the trial court a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). The petition was denied, and this court affirmed the order. Vance v. State, 2012 Ark. 254, 2012 WL 1950406 (per curiam).
On April 16, 2015, Vance filed in this court the pro se petition that is now before us seeking leave to proceed in the trial court with a petition for writ of error coram nobis. After a judgment has been affirmed on appeal, a petition filed in this court for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis only after we grant permission. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam).
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Cromeans v. State, 2013 Ark. -273, 2013 WL 3179379 (per curiam). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. McDaniels v. State, 2012 Ark. 465, 2012 WL 6218480 (per curiam). We have held that a writ of error coram nobis is available to address certain errors that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Charland v. State, 2013 Ark. 452, 2013 WL 5968924 (per curiam) (citing Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam)). The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Chestang v. State, 2014 Ark. 477, 2014 WL 6065634 (per curiam); McFerrin v. State, 2012 Ark. 305, 2012 WL 3366058 (per curiam). The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Wright v. State, 2014 Ark. 25, 2014 WL 260993 (per curiam). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
In his petition, Vance contends that the prosecution at his trial withheld exculpatory evidence from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Vance identifies the withheld evidence as bloody sheets and couch covers. He notes that this court, in the decision affirming the judgment, referred to the victim’s awakening one morning and noticing Rvaginal bleeding and to Vance’s engaging in intercourse with the victim on a couch. Vance points to testimony at trial where a witness testified that the sheets from the bed where the victim was raped were not seized by authorities, probably because the rape was alleged to have been committed two months prior, and that there was no effort to obtain the sheets for forensic testing even though blood evidence can sometimes be found after repeated washings. Vance contends that the failure to seize the evidence amounts to withholding material evidence that could have established his innocence. Vance’s claim is essentially that the State failed to collect all the evidence that could have been obtained that would have been favorable to the defense.
A Brady violation is established when evidence favorable to the defense is wrongfully withheld by the State. Pitts, 336 Ark. 580, 986 S.W.2d 407. In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court revisited Brady and declared that, when the petitioner contends that material evidence was not disclosed to the defense, the petitioner must show that “there is a rea sonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” 527 U.S. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). In Strickler, the Court also set out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler, 527 U.S. 263, 119 S.Ct. 1936; Buchanan v. State, 2010 Ark. 285, 2010 WL 2210923 (per curiam).
Vance has not established a Brady violation. First, he has not met his burden of establishing that there was evidence withheld that meets the threshold requirements of a Brady L violation; that is, evidence that was both material and prejudicial such as to have prevented rendition of the judgment had it been known at the time of trial. Wilson v. State, 2014 Ark. 273, 2014 WL 2566110 (per curiam).
Moreover, Vance has not shown that any actual evidence in existence that could have exonerated him was suppressed by the State. Vance does not contend that the State had possession of the- sheets and couch covers and, either deliberately or inadvertently, kept those items, or the results of forensic testing on those items, from the defense. The defense knew at the time of trial that the victim reported having been raped while in a bed and also on a couch. The defense, through the questioning of a witness, made it known that the State had failed to seize the bed sheets to determine if blood evidence could be obtained from them and thus suggested to the jury that the evidence against Vance was insufficient to establish the offense charged.
It is clear that, rather than raise an allegation within the purview of Brady, Vance’s assertion that the State should have tried to obtain evidence from the sheets and couch covers constitutes a claim that the evidence in his case was not strong enough' to sustain the judgment. See Patrick v. State, 2014 Ark. 15, 2014 WL 197794 (per curiam). In any criminal trial, however, the defense may contend that the State did not acquire sufficient evidence to support the charge against the defendant. This contention is not the equivalent of arguing that the State wrongfully withheld material evidence under Brady. Brady does not encompass claims that the evidence was insufficient to sustain the judgment, and issues concerning the sufficiency of the evidence are not cognizable in coram-nobis proceedings. Philyaw v. State, 2014 Ark. 130, 2014 WL 1096201 (per curiam). The |squestion of the sufficiency of the evidence is to be settled at trial and on the record on direct appeal. Id.; Sims v. State, 2012 Ark. 458, 2012 WL 6061927 (per curiam).
In his final ground for the writ, Vance states the following: “An alibi is not part of the four categories for a writ of error coram nobis the petitioner would his actual innocent claim.” He then states that the exact dates on which the rapes were alleged to have occurred were not set out and that he was admitted to a hospital with an injury on May 16, 2008, and not released until June 30, 2008. Vance does not explain the ground further, and it is well settled that it was his burden as the petitioner to explain his claim for relief inasmuch as the application for coram-no-bis relief must make a full disclosure of specific facts relied upon. Maxwell v. State, 2009 Ark. 309, 2009 WL 1423908 (citing Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004)). It will suffice to say that the ground, as stated by Vance, does not demonstrate a ground for relief within the scope of a coram-nobis proceeding.
Petition denied.
. When a judgment has been affirmed, a petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis is docketed in this court under the docket number for the direct appeal. | [
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BRANDON J. HARRISON, Judge
|, The Pulaski County Special School District and Arkansas School Boards Association (collectively called the “school district”) appeal the Arkansas Workers’ Compensation Commission’s decision to award Jeremy Laster temporary total-disability benefits. We affirm.
I. Background
For the past five to six years, Jeremy Laster has worked for the Pulaski County Special School District as a lighting specialist in the maintenance department. He typically performs manual labor from 6:30 a.m. until 5:00 p.m. On the Wednesday, Thursday, and Friday before Memorial Day weekend in May 2013, Laster worked at Sylvan Hills Middle and High School digging ditches and putting pipe in the ground. He claimed to have injured himself while on the job and pursued a compensation claim.
|2Laster testified at the administrative hearing that he experienced “serious” back pain beginning late Friday night or early Saturday morning, that it worsened over the weekend despite treating it with over-the-counter pain medicine, and that he went to St. Vincent’s emergency room around 10:00 p.m. on Sunday night because he just “could not stand it.” Last-er’s mother testified that she met Laster at the emergency room and he was “just about in. tears” and “could not walk.”
Laster was not scheduled to work on Memorial Day or the next day, which was Tuesday (May 28). On Tuesday, Laster saw his regular family physician, Dr. Roberts, to evaluate his ongoing back pain. On Wednesday morning (May 29), a day he. was scheduled to work, Laster text messaged his immediate supervisor and told him that he could not work that day. The record contains a Form AR-N “Employee’s Notice of Injury” from Laster, dated Wednesday 29 May 2013. Laster described his injury on the AR-N form as “riding ditch-witch bouncing around & pulling PVC pipe in ditch. Back & leg pain started in ... 5-24-13. Ended up in ER on 5-26-13.” The form has a “received” stamp dated 4 June 2013.
Laster’s immediate supervisor, Franklin Thomas, testified before the ALJ that he “had no idea” that Laster was “claiming a back injury or anything at work” when Laster missed work through Friday May 31. Thomas reportedly told Laster that he needed a doctor’s excuse before he returned to work, which was on June 7 or 8.
Laster received medical treatment for his back at Concentra on 5 June 2013. The records from the Concentra visit state, “Patient is a 32 year old male employee of Pulaski County Special School Dist[rict] who complains about his Back which was injured on ja5.24.2013_ Patient states: ‘was digging a ditch and pulling pipe thru the ditch.’” Laster was diagnosed with “lumbar radiculopathy” and “disc protrusion with nerve root compression L3/L4.” An MRI showed a herniated disk on Laster’s left side at L3-4. Laster continued to work for the school district until having surgery in August 2013 to correct the herniated disc.
Laster testified at the administrative hearing that he had no previous back or spinal problems and that he had not been to a doctor for any back problems before May 2013. One of Laster’s medical records reported that he .had some right-side low back pain in the past. But Laster denied that statement when questioned about it at the administrative hearing; he said that the medical record’s account was either a mistake or a miscommunication. On cross-examination, the school district’s counsel elicited the following testimony from Laster:
Counsel: Now, when I asked you in your deposition at what point and time and what day you were injured, you described it as Friday; is that right?
LasteR: Yes, sir.
Counsel: Ok. Is that the day you claim you were hurt?
Laster: Yes, sir, that’s the day we were pulling on pipe and really doing a bunch of digging here and there.
Counsel: And that was leading into the holiday weekend, which was Memorial Day and Riverfest and all of that?
LasteR: Correct.
Counsel: Ok. Now, the time of day, I asked you when you thought that was, and you said you thought it was probably between 2:00 and 4:00 that afternoon; is that right?
LasteR: Yes. Yes, sir.
|4Counsel: Okay. So it would be Friday, the 24th between 2:00 and 4:00 in the afternoon was when you believed you were hurt; is that right?
LasteR: Yes, sir.
Later, on recross-examination, defense counsel questioned Laster about a letter from his attorney:
Counsel: Now, your attorney also sent-a letter to me indicating that you claimed you were injured pulling wire and riding a ditch witch; do you see that?
Laster: Yes.
Counsel: And he’s got on [there] May 22nd, May 23rd, and May 24th.
Laster: Okay.
Counsel: All right. But you’re telling us here today, it was May 24th, that Friday.
Laster: I would just assume. I would assume it was either riding the ditch witch or when we pulled on that pipe.
Counsel: Okay. And that’s a guess?
Laster: You know, a lot goes on in three days when you’re digging a ditch and trying to—
Counsel: Sure, and I guess that’s part of my point is you’re assuming that’s what injured your back, correct?
Laster: Yes, I mean, yeah. I mean—
Counsel: Because you really don’t know, do you sir?
Laster: No.
After considering all the testimony and medical evidence, the ALJ concluded that “the evidence discloses that [Laster] always attributed his injury to his employment activities” and that Laster proved “he sustained an injury to his back on May 24, 2013, | ^arising out of and in the course of his employment which caused internal harm to his body, in the form of an HNP at L3-L4 ... and that the injury was caused by a specific incident.” The Commission adopted and affirmed the ALJ’s opinion. The school district’s sole point on appeal is that the Commission erred in holding that Laster sustained a compensa-ble injury arising out of and in the course of his employment.
II. Discussion
In reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences in the light most favorable to the Commission’s decision and affirm if it is supported by substantial evidence. Smith v. City of Ft. Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether this court might have reached a different result from the Commission. Id. If reasonable minds could have reached the Commission’s result, then we affirm. Id.
This case was tried as an accidental injury case, not a gradual-onset one. So Laster had the burden to prove, by a preponderance of the evidence, that he sustained an “accidental injury ... arising out of and in the course of employment Ark. Code Ann. § 11 — 9—102(4)(A)(i) (Repl. 2012). An injury is ‘accidental’ only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]” Ark. Code Ann. § ll-9-102(4)(A)(i). In Edens v. Superior Marble & Glass, our supreme court held that “identifiable by time and place” meant subject to identification and did not require the claimant to specify the exact time of the occurrence. 346 Ark. 487, 492, 58 S.W.3d 369, 373 (2001). A claimant’s inability to specify the exact date and the precise time of the | (¡accidental injury is a credibility issue that the Commission may weigh. Pafford Med. Billing Servs., Inc. v. Smith, 2011 Ark. App. 180, 381 S.W.3d 921. Still, Laster must show a causal relationship between his employment and the injury. Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 72 S.W.3d 889 (2002). Whether the causal connection exists is a fact question the Commission settles. Jeter v. B.R. McGinty Meek, 62 Ark. App. 53, 59, 968 S.W.2d 645, 650 (1998).
The school district argues that Laster has failed to identify how he was injured at work, as shown by his testimony on recross-examination, so substantial evidence cannot support the Commission’s compensable-injury finding. The school district points out that Laster did not notice any particular event at work that could have caused his injury (for example, he never said that he felt his back “pop” or something to that effect); nor did he display any physical problems at work or report any on-the-job injury until early June. In the school district’s view, these are reasons to reverse the Commission.
We disagree. Laster’s testimony was that he told his supervisor, Franklin Thomas, that he hurt his back riding equipment and pulling pipes. At the administrative bearing, Thomas confirmed that Laster was involved in putting pipe together and trenching ditches that week at work and that he knew Laster to be an “honest individual.” Supervisor Thomas agreed that the equipment Laster was using “jerks you pretty good” and that sometimes with the pipe “you got to strain a little bit and pull on it.” This corroborates Laster’s account that he was pulling wires through the pipe on Friday, that the work was “strenuous,” and that he had to pull “with all [his] might.” The documentary evidence in the record consistently supports these accounts — or so the Commission could have treasonably concluded— because the documents list the cause of Laster’s May 24 back injury as “being jarred by a piece of equipment;” or “digging and pulling pipe;” or “digging a ditch and pulling pipe.” There was no evidence of a non-work related injury or event that contradicts Laster’s claim that he injured himself, at work, while digging ditches or pulling pipe between 2:00 p.m. and 4:00 p.m. on 24 May 2013.
We hold that substantial evidence supports the Commission’s compensable-inju-ry finding and the resulting benefit award. We have previously held that a claimant’s inability to specify the exact date of an injury is a credibility issue that the Commission may weigh, and so it follows that Laster’s struggle to pinpoint exactly how he was injured — whether it was from bouncing around on a “ditch witch,” or “straining on pulling the pipe,” or a combination of the two — was also a credibility issue the Commission could weigh and ultimately resolve in Laster’s favor. The Commission’s conclusion is reasonable; no one else provided a contravening story or account of how Laster was injured. See Pafford, supra (occurrence and cause of claimant’s injury were corroborated by the medical evidence); see also Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 168, 72 S.W.3d 889, 890 (2002) (claimant’s shoulder was sore but he continued to work and pain increased over several months; injury was work-related and accidental). Laster’s arguably inconsistent testimony on reeross-examination does not necessarily defeat his case, given Laster’s unrebutted account of events as a whole and the supporting medical evidence. Reasonable minds could conclude that Laster’s May 24 back injury was caused by his strenuous activity, at work.
|sThe school district also argues that the Commission “faile[d] to' take into consideration the notice defense raised by Appellants.” But the school district did not obtain a ruling on this issue, so it is not preserved for review. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000).
III. Conclusion
Substantial evidence supports the Commission’s decision that Laster’s herniated disc was an accidental injury arising from his employment with the school district. We therefore affirm its decision.
Affirmed.
Virden and Hixson, JJ., agree. | [
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WAYMOND M. BROWN, Judge
_JjA Pulaski County jury found appellant Omar Griffis guilty of first-degree murder, and two counts of attempted first-degree murder. He was sentenced, with an enhancement for committing a felony with a firearm, to an aggregate term of 540 months’ imprisonment. On appeal, appellant argues that the evidence was insufficient to support his convictions; that the trial court committed reversible error by preventing him from introducing direct evidence of his alleged accomplice’s criminal history; and that the court committed reversible error by granting the State’s motion in limine to prevent him from introducing circumstantial evidence of third-party liability. We affirm.
| ^Appellant's first argument is that the evidence was insufficient to support his convictions. More specifically, he contends that there was no “in-court evidence that he is the person who shot Terry London or the other shooting victims.” He also argues that “the circumstantial evidence introduced at trial was not sufficient to eliminate theories of culpability consistent with [his] innocence.”
Appellant moved for a directed verdict at the conclusion of the State’s case, stating, “There has been no credible evidence that Omar Griffis was in possession of a gun, and no scientific evidence to corroborate any of the other statements.” He renewed his motion without putting on a defense. A motion for a directed verdict is a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether .the verdict is supported by substantial evidence, which is evidence of such certainty and precision to compel a conclusion one way or another. We review the evidence in the light most favorable to the appellee, considering only the testimony that tends to support the verdict.
Rule 33.1(a) of the Arkansas Rules of Criminal Procedure requires a motion for directed verdict to state the specific grounds therefor. A party is bound by the scope of the arguments made at trial and may not enlarge or change those grounds on appeal. Here, | .¡appellant’s directed-verdict motion was based on his possession of a firearm. Consequently, the only issue before us on appeal is the evidence of appellant being in possession of a gun.
Randy Goins testified that he was a visitor at 824 Allis Street on July 17, 2012, when a green Cadillac pulled in front of the residence. He stated that appellant got out of the back seat and pointed a gun to Brandon Reed’s head. According to Goins, Reed hit appellant’s hand, but the gun did not go off at that time. He stated that appellant began to shoot toward the carport. Richard Swain testifiéd that he was home at 824 Allis Street on July 17, 2012. He said that Reed, Terry London, and Goins were also at the residence on that date. According to Swain, appellant came up in a Cadillac, got out of the back passenger door, and just started shooting. Swain stated that he was shot in the leg, left shoulder, and left thigh. Detective Tommy Hudson testified that he worked a homicide at 824 Allis Street the summer of 2012. He said that London was found deceased in the carport from a gunshot wound to the head. He stated that he subsequently developed appellant as the suspect.
Here, two eyewitnesses testified in court that appellant was the shooter, and their credibility was a matter for the jury to assess. We hold that the testimony identifying appellant as the shooter, thereby placing a gun in his hands on the date in question, is sufficient evidence to support his convictions.
Appellant’s second argument is that the trial court erred by preventing him from presenting the criminal history of his former codefendant, Marcus Simmons. According to appellant, this prevented him from presenting a full and complete defense that he was not the 14 guilty party. The decision to admit or exclude evidence is within the sound discretion of the trial court, and we will not reverse that decision absent a manifest abuse of discretion. ■
The State objected to appellant’s reference to Simmons’s criminal history during appellant’s opening statements. When the State objected, appellant offered no reason why. this evidence was necessary or relevant. Therefore, he is making this argument that he was prevented from presenting a full and complete defense for the first time on appeal. We will not consider issues on which the trial court has not had the opportunity to rule which are raised for the first time on appeal.
Additionally, appellant failed to proffer the evidence that he contends was improperly excluded. To challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so the appellate court can review the decision, unless the substance of the evidence is apparent from the context. Appellant’s failure to proffer the evidence he believed should have been introduced prevents our review.
Appellant’s third argument is that the trial court erred in granting the State’s motion in limine to prevent him from introducing circumstantial evidence of third-party' liability. | ¡-.According to appellant, he should have been allowed to introduce evidence that Goins had an assault weapon in his car parked across the street from the crime scene. Appellant contends that this information would have allowed the jury to decide whether Goins had the “intent to shoot or cause the death of ‘someone.’ ” Furthermore, appellant argues that because the evidence “presented at [his] trial was insufficient to eliminate Randy Goins as the person who accidently shot the victims in this case, the trial court abused its discretion in not allowing [him] to introduce circumstantial evidence related to Randy Goins’[s] ‘third party guilt.’ ”
Appellant contends that Goins’s possession of multiple weapons was relevant under Zinger v. State. Under Zinger, evidence of a third party’s guilt is admissible only if there is direct or circumstantial evidence linking the third person to the actual perpetration of the crime. Evidence which speaks solely to motive or opportunity is insufficient to create a reasonable doubt of the defendant’s guilt. Appellant did not make this Zinger argument to the trial court. Therefore, it is not preserved for appeal.
Even if the argument was preserved, we would affirm the trial court’s decision to grant the State’s motion to exclude the evidence. The excluded evidence did nothing more than attempt to offer a motive or opportunity for a third party to commit the murder. There was nothing in the excluded evidence that could have implicated Goins, either directly or | fiCircumstantially, in the murder of London or the shooting of the other two victims. Affirmed.
Gruber and Whiteaker, JJ., agree.
. This is the second time this case has been before us. We originally ordered supplementation of the record and rebriefing. Farrelly v. State, 70 Ark. App. 158, 15 S.W.3d 699 (2000).
. Farrelly v. State, 70 Ark. App. 158, 15 S.W.3d 699 (2000).
. Id.
. Id.
. See also Williams v. State, 375 Ark. 132, 289 S.W.3d 97 (2008).
. Id.
. Green v. State, 2013 Ark. 497, 430 S.W.3d 729.
. Boykins v. State, 2013 Ark. App. 463, 2013 WL 4748027.
. Biggs v. State, 2014 Ark. 114, 2014 WL 1096053 (per curiam).
. Brown v. State, 2012 Ark. 399, 424 S.W.3d 288.
. Goins was in possession of a nine millimeter gun, which he had a permit to carry, while he was at the residence on Allis Street. He testified that once appellant began shooting, he fired two or three shots at appellant. Goins subsequently ran from the scene and was stopped about a block away. His gun and magazine were secured by police. His vehicle was towed and searched, and the search turned up another weapon and other magazines. All of the items were tested against the spent shells left at the crime scene and none were a match. Initially thought to be a suspect, Goins became a witness. The murder weapon was never found.
. 313 Ark. 70, 852 S.W.2d 320 (1993).
. Id. | [
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LARRY D. VAUGHT, Judge
| ¶Appellant, Eric Martin, appeals the Randolph County Circuit Court’s termination of his parental rights to his son, J.M. On appeal, he argues that the court erred in denying his request for a continuance of the termination hearing and that there was insufficient evidence that the Department of Human Services (DHS) had provided him with enough time to reunify with J.M. We affirm.
Martin is the biological father of J.M., born October'29, 2012. At the time of J.M.’s birth, Martin was incarcerated. Martin was released, but he was again incarcerated on August 21, 2013. He was released on May 29, 2014. He reported to DHS on June 2, 2014, set up a paternity-testing appointment, and began parenting classes. He completed paternity testing on June 12, 2014, which confirmed that he was the biological father of J.M. He was scheduled to attend a second parenting class and a DHS staffing on July 14, 2014, but he did not.appear. Martin stated that he had misunderstood the time of the appointments. The ^parenting class was rescheduled for the following day, and the staffing was rescheduled for July 22. Martin did not appear for either appointment. On July 31, 2014, the DHS caseworker went to Martin’s home and provided him with information about reunification services that would be provided to him. At that time, he failed a drug screening; he tested positive for THC and benzos. DHS employees then tried to call him multiple times to reschedule the parenting class and the staffing, but he did not return their calls. On August 13, 2014, DHS learned that Martin had been arrested and was incarcerated again. On August 18, Martin contacted his DHS caseworker from jail and asked her to visit him. On August 21, the DHS worker went to the Randolph County jail and spoke with Martin regarding his case. She informed him that the termination-of-parental-rights (TPR) petition had been filed and that there was a TPR hearing set for September 30. .She advised him that, if there were relatives interested in taking J.M., they should contact her for a home study. On September 10, DHS learned that Martin’s probation had been revoked and he was serving a sentence in the Arkansas Department of Correction (ADC). The DHS case worker testified that, during the brief period when Martin was not incarcerated, he never exercised visitation with or sent anything to J.M.; he also never sent the child anything. No relatives ever contacted DHS about a home study.
At the beginning of the termination hearing on November 18, 2014, Martin moved for a continuance. He stated that he would be released from the ADC in March 2015. He also stated that his father wanted to complete a home study in order to take J.M. The court denied the motion.
|3On December 9, 2014, the court entered an order terminating Martin’s parental rights to J.M. The court found that J.M. had lived outside the home for at least twelve months and that Martin had willfully failed to provide significant material support in accordance with his means or to maintain meaningful contact with J.M. Specifically, the .court found that Martin had not maintained a relationship of any kind with J.M., even when Martin was not incarcerated. The court further found that other factors had arisen subsequent to J.M.’s placement in DHS custody that demonstrated that placement with Martin would be contrary to J.M.’s health, safety, or welfare and that Martin’s incapacity or indifference to remedy those issues prevented placement of J.M. with him. Specifically, Martin did not follow through with parenting classes or attend staffing appointments. He did not abstain from drugs and alcohol. He did not comply with the terms of his probation and was subsequently incarcerated. The court also found that Martin had subjected J.M. to aggravated circumstances, and that there was little likelihood that further services to Martin would result in successful reunification. Martin filed a timely notice of appeal.
We review termination-of-parental-rights cases de novo. Thompkins v. Ark. Dep’t of Human Servs., 2014 Ark. App. 413, at 2, 439 S.W.3d 81, 83. At least one statutory ground must .exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Id. (citing Ark.Code Ann. § 9-27-341 (Supp. 2013)). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Id. at 2, 439 S.W.3d at 83. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id.
Martin’s first argument on appeal is that the trial court erred in denying his motion for a continuance. A motion for continuance should be granted only upon a showing of good cause. Butler v. Ark. Dep’t of Human Servs., 2010 Ark. App. 570, at 4, 2010 WL 3422456. We will not reverse a denial of a motion for continuance absent an abuse of discretion amounting to denial of justice. Smith v. Ark. Dep’t of Human Servs., 93 Ark. App. 395, 401, 219 S.W.3d 705, 708 (2005). Lack of diligence by the moving party is a suffi- dent reason to deny a motion for continuance. Id., 219 S.W.3d at 708. Additionally, we will not reverse absent a showing of prejudice from the denial of the motion for continuance. Id., 219 S.W.3d at 708. Here, the trial court did not abuse its discretion, and Martin cannot demonstrate prejudice. Martin did not request the continuance until the beginning of the termination hearing, which demonstrated a lack of diligence sufficient to support the denial. Moreover, there was no prejudice because Martin’s past behavior indicated that, even if the court allowed a continuance until he was released from prison, he was not likely to follow through with all of the steps necessary for reunification. Finally, although the DHS worker had advised Martin months earlier that, if there was a relative interested in placement, the relative should contact DHS and get a home study. This was never done. Despite knowing that Martin was incarcerated and that J.M. was in foster care, Martin’s father made no efforts to obtain custody of J.M. prior to the termination hearing. The trial court’s decision to deny Martin’s request for a continuance was not an abuse of discretion.
| ¿Martin next argues that there was insufficient evidence that DHS had provided him with sufficient time to utilize reunification services and attempt to reunify with J.M. The court explicitly found that, despite being free for several months, Martin failed to follow through with reunification services. He never exercised visitation, never sent J.M. letters, never provided material support, and did not refrain from drug and alcohol use or criminal activity. The goal of the termination statute is to provide permanency for the minor child, Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328, 332, 255 S.W.3d 505, 507 (2007), which would have been thwarted had the court granted Martin’s request for an indefinite extension of time. Finally, Martin has not challenged the court’s findings as to the statutory grounds for termination or J.M.’s best interest. Therefore, Martin has asserted no legal basis for reversal of the trial court’s order terminating his parental rights to J.M. See Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798, at 8, 378 S.W.3d 290, 295 (explaining that termination of parental rights is a two-step process that requires the circuit court to find that the parent is unfit based on at least one statutory ground for termination and that termination is in the best interest of the child).
Affirmed.
Harrison and Gruber, JJ., agree.
. The order also terminated the parental rights of Kevin Richey as to J.M.’s half sister. The mother’s rights as to both children had been previously terminated. None of those terminations are at issue in this appeal. | [
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Larry D. Vaught, Judge.
Appellant Carolyn Williams appeals from a default judgment entered against her in Phillips County Circuit Court. We reverse and dismiss.
On March 27, 2000, appellee Citibank sued Williams for $3547.18 due on an account. A summons was issued for Williams, but Citibank was unable to serve her. On the 121st day after the complaint was filed, Citibank asked the trial court to extend the time for service. The trial court granted an extension, and Williams was served within the extended period.
Twenty-two days after Williams was served, she moved to dismiss Citibank’s complaint on the ground that it had not been served on her within 120 days of filing, as required by Rule 4(i) of the Arkansas Rules of Civil Procedure. Thereafter, Citibank moved for a default judgment based on the fact that Williams’s responsive pleading was filed outside the twenty-day period mandated by Ark. R. Civ. P. 12(a). On January 9, 2002, the trial judge entered a default judgment and awarded Citibank $3547.18, plus $298.95 in costs, $3113.04 in prejudgment interest, and attorney fees of $355.00. Williams now appeals.
Rule 4(i) of the Arkansas Rules of Civil Procedure provides in pertinent part:
If service of the summons is not made upon a defendant within 120 days after the fihng of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s own initiative. If a motion is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause.
Rule 4(i) has been interpreted to mean that, if the plaintiff fails to serve the defendant within 120 days of the date the complaint was filed or does not move for an extension of time within that same period, dismissal of the plaintiffs complaint is mandatory. See Kangas v. Neely, 346 Ark. 334, 57 S.W.3d 694 (2001); Southeast Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998). The service requirements of Rule 4 must be strictly construed, and compliance with the requirements must be exact. Southeast Foods, Inc. v. Keener, supra. In the case before us, it is undisputed that the motion for extension was filed on the 121st day. Therefore, in accordance with Rule 4(i) and the cases interpreting it, Citibank’s complaint should have been dismissed.
Citibank claims that Williams waived her argument regarding insufficiency of service because, once she was served, her response to the complaint was untimely. Citibank relies on the case of Southern Transit Co. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (1998). There, a defendant who had been improperly served filed an untimely answer and later, in a response to a motion for a default judgment, asserted for the first time the defense of improper service. The supreme court held that the defense was waived. However, the court’s holding was not based on the untimeliness of the defendant’s answer but on the fact that the defendant did not assert insufficiency of service in its initial responsive pleading, as required by Rule 12(h)(1) of the Arkansas Rules of Civil Procedure.
By contrast, in the case before us, Williams raised the insufficiency of service defense in her first pleading, although her pleading was untimely. Her untimeliness, however, does not constitute a waiver under these circumstances. See J&V Restaurant Supply & Refrigeration Co. v. Supreme Fixture Co., 76 Ark. App. 505, 69 S.W.3d 881 (2002) (holding that defense of lack of personal jurisdiction was not waived by asserting it in an untimely responsive pleading). See also Dunklin v. First Magnus Fin. Corp., 79 Ark. App. 246, 86 S.W.3d 22 (2002).
Citibank also argues that Williams may not set the default judgment aside unless she shows a meritorious defense. See Ark. R. Civ. P. 55(c). Citibank is incorrect. Judgments rendered without valid service are void, and a defendant need not show a meritorious defense to set aside a void judgment. See Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990).
For the reasons stated, we reverse the trial court’s entry of a default judgment without reaching appellant’s remaining arguments. As for our disposition of the case, we note that, in Kangas and Keener, supra, the supreme court reversed and dismissed with prejudice because the statute of limitations on the plaintiffs action had run. The record in this case is not sufficiently developed to allow us to determine whether Citibank’s action is now time barred. Therefore, although we reverse and dismiss, we do so without prejudice.
Reversed and dismissed.
Robbins and Baker, JJ., agree. | [
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Karen R. Baker, Judge.
Appellant, Horticare Landscape Management, employed appellee, Jerome McDon- aid, to perform physical labor related to landscape work. His duties included stacking rocks, planting trees, building beds, and any other assigned tasks. On June 30, 1999, appellee was landscaping at a plaza on Chenal Parkway. Appellant had ten to twelve employees working on the project that day. Appellee was performing dirt work, which included operating a bobcat front end loader and loading dirt onto a dump truck. The dirt was being dumped into an area on the plaza for leveling. The truck bed would be raised to allow the dirt to slide out the back of the truck and be dumped onto the ground. At about 10:00 a.m., appellee approached the side of the truck with the bed raised to make sure that the dirt was being emptied properly. The door of the truck hit him under his right arm, slid down his ribs and bounced offhis right hip. Appellee landed on his left side, striking the ground from his left hip downward. He stated that the pain was so overwhelming that he was unable to answer a coworker’s initial inquiries as to whether he was okay.
Appellee’s immediate supervisor drove him to appellant’s designated medical provider, St. Vincent’s Family Clinic. After receiving medical treatment for his right rib area, appellee was furnished medicine and directed to remain off work until July 2, 1999. He contacted appellant prior to his scheduled release to return to work and requested permission to remain off work until the Fourth of July holiday, and subsequently returned to work on July 7.
Appellee then worked for appellant for approximately two more weeks, discharging his regular employment duties. The basis for the termination of appellee’s employment on July 21 did not relate to the June 30 incident. After leaving appellant’s employ, appellee worked for approximately three months for a tree landscaping business. Appellee testified that he sustained no injury while employed there.
Appellee next secured employment with Midwest Dry Wall where he performed the duties of a metal stud framer and sheet rock hanger working up to seventy hours a week. In mid-December, 1999, appellee began experiencing pain in his left hip area. He described the onset of his symptoms as beginning as a dull ache and gradually increasing until the pain became unbearable. While he was able to continue his job duties for a period of time, performance of those duties became increasingly difficult as a result of his left leg pain, even with the constant use of over-the-counter pain relievers. Eventually, Dr. Charles Clark, a Pine Bluff orthopedic physician, began treating appellee.
While under Dr. Clark’s care, appellee underwent additional diagnostic studies, including an MBJ of his left hip. The MR.I disclosed a herniated disc and an avascular necrosis Grade I in appellee’s left leg and hip. Appellee was referred to Dr. Simpson, a neurosurgeon, who referred him back to Dr. Clark for treatment of the left hip. Although appellee continued to attempt to work after beginning treatment with Dr. Clark on January 25, 2000, he became unable to stand for prolonged periods or to climb ladders. Because of his inability to perform required job activitities, including climbing, Midwest Dry Wall terminated his employment in February 2000. Appellee sought employment which did not involve standing or climbing. The final medical report in the record by Dr. Clark on September 7, 2000, indicates that the avas-cular necrosis of appellee’s left hip was at a Grade IV. Dr. Clark recommended a total hip replacement.
Testimony indicated that the only fall or blow to appellee’s left hip occurred on June 30, 1999, when he fell after being struck by the door while employed by appellant. He has undergone treatment under the care of Dr. Clark for the diagnosed avascular necrosis of the left hip. Dr. Clark associated the June 30, 1999, injury with the condition of the left hip in various correspondence as follows:
After today’s visit of May 9, 2000, Mr. McDonald noted that he needed clarification on the etiology of his AVN. We have addressed this question before, and the most likely source of his disease is trauma. The only trauma that he can relate, that is associated with this, was work related.
The only history that he gives that is cogent, seems to be related to trauma. Most likely at that time, it would have felt like a con tusion that initially would have resolved, and then his pain would have progressed after that, in an insidious fashion.
Since there are no other risk factors that seem applicable at this point in time, I would say that the most likely cause, therefore, is trauma.
[I]t is my feeling that Mr. McDonald was probably able to work up until the time the hip pain became debilitating, which was about a month prior to his seeing me. My guess would have been that it would have been four to five months before this became as symptomatic as it did, and this would be typical for avascular necrosis. . . . The avascular necrosis has now advanced to Grade III and IV changes. The need for a total hip, I think, is imminent at this point in time. I went so far as to recommend that we do this in August of this year, due to the persistent pain. However, multiple problems with worker’s compensation have delayed treatment to date.
The Commission found that the injury was compensable and that the June 30, 1999, incident was the cause of the injury.
Appellant argues that there is no substantial evidence to support the Commission’s finding that appellee’s avascular necrosis of the hip was a compensable consequence of his bruised right rib six months earlier. Appellant’s argument inaccurately characterizes the injury as arising out of appellee’s injury to the rib. That is not the case. The Commission found that the injury to the hip arose out of the same incident that caused the rib injury, not that the hip injury was a direct result of the rib injury.
Our question then becomes whether substantial evidence supports the Commission’s decision that appellant sustained a compensable injury to his left hip as a result of the June 30, 1999, incident. We hold that substantial evidence supports that conclusion.
When reviewing a decision of the Arkansas Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999). The issue is not whether this court might have reached a different result from the Commission. Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995).
In making our review, we recognize that it is the function of the Commission to determine credibility of witnesses and the weight to be given their testimony. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). In order to prove a compensable injury a claimant must prove, among other things, a causal relationship between the injury and the employment. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997). Objective medical evidence is necessary to establish the existence and extent of an injury but not essential to establish the causal relationship between the injury and a work-related accident. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). Objective medical evidence is not essential to establish the causal relationship between the injury and a work-related accident where objective medical evidence establishes the existence and extent of the injury, and a preponderance of other nonmedical evidence establishes a causal relation to a work-related incident. Wal-Mart Stores, Inc. v. Van Wagner, supra; Wal-Mart Stores, Inc. v. Leach, 74 Ark. App. 231, 48 S.W.3d 540 (2001).
In this case, Dr. Clark’s medical evidence clearly establishes the existence of an injury that was becoming progressively worse with a delay of medical treatment caused by problems with payments by the workers’ compensation carrier. As we emphasized in Stephens Truck Lines v. Millican, supra, to require objective medical findings to prove non-medical elements of compensability would defeat the overriding legislative intent, which is to pay timely benefits to all legitimately injured workers. Dr. Clark clearly stated his belief that the June 30 incident was the cause of the condition, and other testimony established unquestionably that appellee was struck, fell, and received initial treat ment for the rib injury. Dr. Clark specifically acknowledged that a delay of symptoms, followed by a steady degeneration of appel-lee’s condition, was consistent with his diagnosis.
Under these circumstances, sufficient evidence supports the Commission’s finding, and we accordingly affirm.
Robbins and Vaught, JJ., agree. | [
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Karen R. Baker, Judge.
A Drew County jury convicted appellant, Robert Earl Cherry, of manufacturing methamphetamine, simultaneous possession of drugs and firearms, possession of drug paraphernalia with intent to manufacture methamphetamine, possession of anhydrous ammonia in an unlawful container, and possession of ephedrine and pseudoephedrine with intent to manufacture. He was sentenced to a total of forty years’ imprisonment in the Arkansas Department of Correction. None of Mr. Cherry’s arguments have merit, and we accordingly affirm.
Facts
On July 6, 2000, investigators for the Arkansas State Police, the Tenth Judicial District Drug Task Force and the Drew County Sheriffs Department executed a search warrant at Mr. Cherry’s residence, including several outbuildings on his property. They found the following items during the search: an improperly labeled small compressed-gas cylinder with a flaky blue residue around the valve fitting which indicated it had contained anhydrous ammonia; glass jars with methanol, guaifenesin, ephedrine, pseudoephedrine, and methamphetamine residues; scales, soft-drink bottle caps with tubing running through them; thirteen cans of engine starting fluid; denatured alcohol; a loaded Ruger 9 mm handgun; $3,060 found behind a piece of paneling; a radio scanner with a list of law enforcement frequencies; a radio frequency detector that would emit a sound that would indicate to the user that a person in the area was wearing a wire; thirty-seven pages of recipes for manufacturing methamphetamine; coffee filters with residue; and multiple packages of pseudoephedrine pills.
After the execution of the warrant, Mr. Cherry was taken into custody. Arkansas State Police Criminal Investigator Buck McKelvey and Special Agent in charge of the Tenth Judicial District’s Drug Task Force, Brent Reaves, conducted a custodial interrogation of Mr. Cherry. Both officers testified that the appellant read, understood, and signed a Miranda-ñghts waiver form indicating that he was aware of his rights, wished to waive those rights, and would voluntarily make a statement. At the time, Mr. Cherry was a forty-two-year-old, self-employed mechanic and a high school graduate. He never asked for an attorney. In his statement, Mr. Cherry admitted to using and selling methamphetamine and identified his most recent use of methamphetamine as the night before, admitted getting the anhydrous ammonia from a farmer’s tank, and buying the chemicals from Wal-Mart. Iinvestigator McKelvey testified that, although Mr. Cherry said he had ingested methamphetamine the night before, he did not appear to be intoxicated at the time of the interview.
Sufficiency of the Evidence
A motion for directed verdict is a challenge to the sufficiency of the evidence. We address this issue first because the Double Jeopardy Clause precludes a second trial when a judgment of conviction is reversed for insufficient evidence. E.g. Coon v. State, 76 Ark. App. 250, 253, 65 S.W.3d 889, 890 (2001). The test for determining sufficiency of the evidence is whether substantial evidence supports the verdict. Hatley v. State, 68 Ark. App. 209, 213, 5 S.W.3d 86, 88 (1999). Evidence is substantial when it is forceful enough to compel a conclusion and goes beyond mere speculation or conjecture. Wortham v. State, 65 Ark. App. 81, 82, 985 S.W.2d 329, 329 (1999). Circumstantial evidence can be sufficient to sustain a conviction when it excludes every other reasonable hypothesis consistent with innocence. Mace v. State, 328 Ark. 536, 539, 944 S.W.3d 830, 832 (1997). The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Ross v. State, 346 Ark. 225, 230, 57 S.W.3d 152, 156 (2001).
Here, Mr. Cherry argues that there was insufficient evidence of manufacturing methamphetamine because there was no evidence of lithium and that lithium was necessary to the manufacturing process. This argument is without merit. The State’s expert in forensic chemistry testified that Mr. Cherry .was using the lithium/sodium method of manufacturing methamphetamine. However, he also testified that during the manufacturing process, when using this method, lithium acts as a catalyst and is consumed during the process. He concluded that there would be no lithium left to be found or tested. This testimony sufficiently explained the absence of lithium upon which Mr. Cherry based his argument.
Mr. Cherry also argues that there was insufficient evidence of simultaneous possession of drugs and firearms because he was arrested outside his residence and there were only trace amounts of methamphetamine. This argument is similarly without merit. A person commits the offense of simultaneous possession of drugs and firearms if he commits a felony violation of Ark. Code Ann. § 5-64-401, or attempts, solicits, or conspires to commit a felony violation of § 5-64-401 while in possession of a firearm. See Ark. Code Ann. § 5-74-106(a)(1) (Repl. 1997). It is a felony violation of Arkansas Code Annotated § 5-64-401 to possess, manufacture, or attempt to manufacture methamphetamine. Ark. Code Ann. § 5-64-401 (a)(l)(i) (Repl. 1997). The statute does not require that methamphetamine actually be produced from the manufacturing process to sustain a conviction because a felony violation of the statute includes attempted manufacture of methamphetamine. Harris v. State, 73 Ark. App. 185, 187, 44 S.W.2d 347, 349 (2001).
In this case, a loaded weapon was found in Mr. Cherry’s kitchen near items used to manufacture methamphetamine. To sustain a conviction, the State must show that the accused possessed a firearm and a nexus between the firearm and the drugs. Manning v. State, 330 Ark. 699, 703, 956 S.W.2d 184, 187 (1997). “For use” as a firearm includes the term “readily accessible for use.” Rabb v. State, 72 Ark. App. 396, 403, 39 S.W.3d 11, 16-17 (2001). The accused does not actually have to be present where the drugs and firearms were found because his possession may be constructive. Darrough v. State, 330 Ark. 808, 811, 957 S.W.2d 707, 708 (1997). The State did not have to show that Mr. Cherry physically possessed the handgun in order to sustain a conviction for its possession if the gun’s location was such that it was under Mr. Cherry’s dominion and control. See id. The gun in Mr. Cherry’s kitchen next to items used to manufacture methamphetamine sufficiently meets that burden.
Mr. Cherry also questions the sufficiency of the evidence regarding his possession of anhydrous ammonia in an unlawful container. His argument emphasizes that prosecution witnesses testified that it was possible that chemicals and/or gases other than anhydrous ammonia could have produced the bluish tarnish found around the brass fittings of the gas cylinder found at Mr. Cherry’s residence, but the State’s expert witness also testified that the discoloration of the fittings was consistent with it having contained anhydrous ammonia. Although the substance in the tank was not analyzed to prove it was anhydrous ammonia, Mr. Cherry confessed to taking anhydrous ammonia from a farmer’s tank. In the absence of any other reasonable explanation, the jury could conclude that there was sufficient evidence that the substance in the container was anhydrous ammonia.
Mr. Cherry also argues that not all of the elements necessary for production were present and that all the items that were present had ordinary and legal usages. Therefore, he contends, there was insufficient evidence of possession of drug paraphernalia with intent to manufacture. This argument also fails. A person commits the offense of possession of drug paraphernalia with intent to manufacture methamphetamine if he uses, or possesses with intent to use, drug paraphernalia to manufacture metham phetamine. Ark. Code Ann. § 5-64-403(c)(5) (Supp. 2001). The term “drug paraphernalia” specifically includes items such as scales and balances, cutting agents, bowls, containers, and mixing devices. See Ark. Code Ann. § 5-64-101-(v)(5), (6) & (8) (1997 Repl.). These items have ordinary and legal usages, and the fact-finder must determine whether the object is drug paraphernalia considering all logically relevant factors and evidence such as the following: (1) statements by an owner or by anyone in control of the object concerning its use; (2) prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance; (3) the proximity of the object, in time and space, to a direct violation of the controlled substances act; (4) the proximity of the object to controlled substances; (5) the existence of any residue of controlled substances on the object; (6) direct or circumstantial evidence of the intent of the owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to manufacture a controlled substance; (7) instructions, oral or written, provided with the object concerning its use; (8) expert testimony concerning its use. Ark. Code Ann. § 5-64-101(v)(l) et. seq. (Repl 1997).
In this case, the State introduced two, two-quart containers containing a clear liquid with an ether odor; two containers containing an organic solvent and white sediment; a quart glass pill-soaking container containing sediment consisting of methanol, guaifensin, ephedrine; a glass jar containing a tan substance that tested positive for methamphetamine; a one-gallon glass jar containing a methamphetamine solution; thirteen cans of starting fluid that contained ether and three containers of denatured alcohol, which are used to extract the methamphetamine; coffee filters, Liquid Fire, salt, funnel, plastic lids with holes punched through them, and plastic tubing used to make the HCL generator and to separate the liquid from the solid. Sufficient evidence was presented to the jury from which they could conclude that Mr. Cherry possessed these items for the purpose of manufacturing methamphetamine.
Relying upon the same premise that not all of the elements necessary for production of methamphetamine were pre sent, Mr. Cherry argues that there was insufficient evidence to sustain his conviction for possession of ephedrine with intent to manufacture. Ark. Code Ann. § 5-64-1102(a)(1) (Supp. 2001) provides that it is unlawful for a person to possess ephedrine, pseudo ephedrine, or phenylpropanolamine or their salts, optical isomers, or salts of optical isomers with intent to manufacture methamphetamine. Possession of more than five grams of these prohibited substances is prima facie evidence of the intent to manufacture methamphetamine. Ark. Code Ann. § 5-64-1101(b) (Repl. 1997). The total amount of pseudoephedrine found at Mr. Cherry’s residence was 7.5 grams. Clearly, when considered with the other evidence, there was sufficient evidence from which the jury could conclude that Mr. Cherry possessed ephedrine with intent to manufacture.
Suppression of Custodial Statement
In addition to his arguments regarding the sufficiency of the evidence, Mr. Cherry asserts that the trial court erred in denying his motion to suppress his custodial statement. In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. E.g., .Wright v. State, 335 Ark. 395, 403-04, 938 S.W.2d 397, 401 (1998). The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding the custodial statement is for the judge to determine, and we defer to the superior position of the trial judge in matters of credibility. Id.
We find no error in the trial court’s denial of the motion to suppress. Arkansas State Police Criminal Investigator Rick McKelvey and Special Agent Brent Reaves participated in the custodial interrogation of Mr. Cherry after the execution of the search warrant at his residence. They testified that Mr. Cherry read, understood, and signed a Miranda-rights waiver form and that he never asked for an attorney. Furthermore, it appeared to them that he understood each provision of the rights form he signed and he did not appear to be mentally impaired by the drugs he stated he had ingested the night before. Although Mr. Cherry asserts that his confession was obtained under circumstances indicative of coercion, he cites no facts or legal argument to support that assertion, and we need not consider it. See Johnson v. State, 71 Ark. App. 58, 79, 25 S.W.3d 445, 458 (2000).
Accordingly, we find no merit to Mr. Cherry’s arguments and affirm.
Stroud, C.J., and Neal, J., agree. | [
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Wendell L. Griffen, Judge.
Bobbie and Donald Holland appeal from an order denying their motion for an extension of time to perfect service of process on the appellees, Stephen Lefler, Ken Meachum, White County Medical Center, and Virginia Insurance Reciprocal Group, made under Rule 6(b)(2) of the Arkansas Rules of Civil Procedure. Appellants argue that the trial court erred in finding that Ark. R. Civ. P. 6(b)(2) was not applicable to the initial service of a complaint, which had not been served within the 120-day period prescribed by Ark. R. Civ. P. 4(i). We disagree and affirm.
On July 25, 2001, appellants filed a complaint against appellees under the Arkansas Medical Malpractice Act, Ark. Code Ann. § 16-114-201, et seq., alleging that appellants suffered damages as a result of appellees’ negligence in performing surgery on Bobbie Holland. Under Rule 4(i) of the Arkansas Rules of Civil Procedure, appellants had until November 26, 2001, that is, 120 days from the date the complaint was filed, to serve appellees with a copy of the complaint. However, appellants did not perfect service of process on appellees within this 120-day period. On November 28, 2001, appellants filed a motion for additional time to obtain service on appellees, but on November 30, 2001, the trial court entered an order, on its own initiative, dismissing appellants’ case without prejudice for failure to make service or to file a motion to extend time within 120 days of filing the complaint as required under Rule 4(i). The appellants moved to have the trial court reconsider their previous motion to extend time for service of process and set aside the order of dismissal. They argued that Ark. R. Civ. P. 6(b)(2) gives a trial court discretion to permit an act to be done after the specified period for doing the act has expired if the failure to act was the result of mistake, inadvertence, surprise, excusable neglect, or other just cause. The trial court denied appellants’ motion to reconsider based on its conclusion that Rule 6(b)(2) was not applicable to the initial service of a complaint and that under Rule 4(i) it lost jurisdiction over the case when appellants failed to either serve appellees or'file a motion for extension of time to serve within 120 days after filing the complaint. This appeal followed.
Appellants first argue that the trial court erred when it held that Ark. R. Civ. P. 6(b)(2) is inapplicable to the initial service of a complaint. Appellants state that whether a plaintiff can use Rule 6(b)(2) to seek an extension of time to obtain service on a defendant where the plaintiff has neither served the defendant nor sought an extension of time to serve within 120 days after filing the complaint is a question of first impression for this court.
The resolution of this issue requires us to analyze Rule 4(i) and Rule 6(b) of the Arkansas Rules of Civil Procedure. Court rules are construed using the same means, including canons of construction, as are used to construe statutes. Moon v. Citty, 344 Ark. 500, 42 S.W.3d 459 (2001). The first rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Yamaha Motor Corp. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001). When the language of the statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Burcham v. City of Van Burén, 330 Ark. 451, 954 S.W.2d 266 (1997). Issues of statutory construction are reviewed de novo; however, absent a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999).
Arkansas Rule of Civil Procedure 4(i) provides in pertinent part:
Time Limit for Service. If service of summons is not made upon a defendant within 120 days after filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause.
Rule 4(i) is clear and unambiguous when it states “if service of summons is not made upon a defendant within 120 days after filing of the complaint, the action shall be dismissed.” (Emphasis added.) Appellants concede that the trial court acted properly in dismissing their case under Rule 4(i) because they did not serve appellees and did not file a timely motion to extend time for service. However, appellants argue that the trial court had discretion to consider their motion for an extension of time to serve process under Rule 6(b), although their request was made more than 120 days after the initial complaint was filed.
Arkansas Rule of Civil Procedure 6(b) provides in pertinent part:
Enlargement. When by these rules or by a notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the Court for cause shown may at any time in its discretion ... (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of mistake, inadvertence, surprise, excusable neglect, or other just cause, but it may not extend the time for taking an action under Rules 50(b), 52(b), 59(b), (d) and (e), and 60(b), except to the extent and under the conditions stated in them.
Appellants contend that Rule 6(b) can be used to extend time for service of a complaint after the 120-day time requirement under Rule 4(i) has expired if the failure to serve was the result of mistake, surprise, excusable neglect, or other just cause because Rule 6(b) does not specifically exclude Rule 4(i) from its application, as it does other rules. As a basis for seeking an extension under Rule 6(b), appellants asserted below that they had “just cause” for failing to obtain service. While appellants state that the question of the sufficiency of their reasons is not an issue on appeal, they argue that whether they had just cause under Rule 6(b)(2) was a matter the trial court should have considered.
Arkansas courts have not addressed whether Rule 6(b) can be used to extend the time to obtain service once the 120-day period for service prescribed in Rule 4(i) has expired. However, the supreme court has held that the service requirements under Rule 4(i) must be strictly construed, and compliance with them must be exact. Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001). Service of process under Rule 4(i) must be accomplished within 120 days after the filing of the complaint unless the plaintiff has filed a motion to extend time prior to the expiration of the deadline. Id. If service is not obtained within that time and no timely motion to extend is made, dismissal of the action is mandatory. Id. Consequently, if a trial court is required to dismiss an action because a plaintiff has failed to serve a defendant or to file a timely motion to extend service, it follows that, in accordance with the language of Rule 4(i), the trial court loses jurisdiction over that case and no longer has discretion to take action on the case after the expiration of the 120-day period.
Although under Rule 6(b) a trial court is permitted to enlarge the time period to act upon a motion made after the expiration of the specified period, for cause shown, Rule 6(b) does not apply where a trial court has no jurisdiction to act. If, under Rule 4(i), a trial court must dismiss an action for lack of service or failure to file a timely motion to extend time for service, then that trial court loses its jurisdiction to take any further action in that case. This necessarily means the trial court would lack jurisdiction even to consider a request to extend service made pursuant to Rule 6(b), let alone exercise discretion to enlarge the time to complete service. In this case, appellants failed to serve the appellees and did not file a motion to extend time for service within the 120-day period. The trial court was required to dismiss their case and did not have the authority or jurisdiction to consider appellants’ request to extend the time to obtain service made under Rule 6(b).
Appellants argue next that under the Federal Rules of Civil Procedure, a plaintiff who does not comply with the 120-day period for service under Fed. R. Civ. P. 4(m) can obtain additional time to obtain service under Fed. R. Civ. P. 6(b)(2) provided the plaintiff shows good cause for the failure, and that where the Arkansas Rules of Civil Procedure are nearly identical or substantially the same as the federal rules, federal precedent and commentary should be accorded significant precedential value. Appellants correctly state that where there have been similarities between our rules and the federal rules, we have considered the federal courts’ interpretation of federal rules to be of significant precedential value. Smith v. Washington, 340 Ark. 460, 10 S.W.3d 877 (2000). The federal courts have held that a plaintiff can seek additional time to serve a complaint under Fed. R. Civ. P. 6(b)(2), which is substantially similar to our Ark. R. Civ. P. 6(b). Braxton v. United States, 817 F.2d 238 (3rd Cir. 1987); Nelle v. Ciotti, 151 F.R.D. 568 (E.D. Pa. 1993).
However, Fed. R. Civ. P. 4(m) is not substantially similar to our Rule 4(i) and has no precedential value. Federal Rule Civil Procedure 4(m) provides:
Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. (Emphasis added.)
Unlike Arkansas Rule of Civil Procedure 4(i), which mandates dismissal of the action if service or a motion to extend time is not made within the required time period, Fed. R. Civ. P. 4(m) specifically grants the federal courts the authority to extend the time of service upon a showing of good cause.
Based on the language in our Rule 4(i), we conclude that a plaintiff cannot use Rule 6(b) to enlarge the time to obtain service when the plaintiff has not complied with the requirements of Rule 4(i), which the Arkansas courts have strictly construed and held that compliance with must be exact. Accordingly, we hold that the trial court did not err in denying appellants’ motion for extension of time to serve process made after the 120-day period for service under Rule 4(i) had expired.
Affirmed.
Robbins and Bird, JJ., agree.
Although appellants’ complaint was dismissed without prejudice, they initiated this appeal seeking relief under Ark. R. Civ. P. 6(b), instead of refiling their complaint, because the applicable statute of limitations had run on their cause of action barring them from refiling the complaint. Kangas v. Neely, 346 Ark. 334, 57 S.W.3d 694 (2001) (holding that a dismissal under Ark. R. Civ. P. 4(i) is without prejudice unless the suit is otherwise barred by the applicable statute of limitations, then the dismissal is with prejudice). Here, the applicable statute of limitations on appellants’ cause of action ran on July 26, 2001, and the case was dismissed on November 30, 2001.
The good cause reasons set forth were that plaintiffs’ counsel was unable to identify the agent for service of process of separate defendant, White County Medical Center; counsel became deeply involved in a capital murder trial and aggravated robbery trial set for trial on November 28, 2001; on November 26, 2001, the last day to perfect service, counsel was called to an emergency hearing about the aggravated robbery case; and co-counsel on plaintiffs’ case was sick with the flu and stomach virus and was out of the office the week of November 26, 2001. | [
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Karen R. Baker, Judge.
Appellant, Heather Robbins, appeals from an order by the circuit court, juvenile division, placing permanent custody of her daughter, Jessika, with the child’s paternal grandparents. On appeal, she argues that there was no evidence to support the court’s finding that awarding custody of the juvenile to the grandparents was necessary to protect the health and safety of the juvenile. We reverse.
Appellant and her husband were separated for approximately three years, and both parties shared custody of their child, Jessika, on their own terms. Although the two had not divorced, they each maintained relationships with other people. Heather’s partner was Keegan Stahl. In November 2000, Jessika’s father caused the fifing of a FINS petition based upon allegations by his girlfriend’s sister that Keegan Stahl was sexually abusing Jessika. At an emergency hearing on November 7, 2000, the court granted temporary custody to Jessika’s father. At a FINS adjudication hearing on November 16, 2000, the judge ordered that temporary custody remain with the father. At that hearing, Jessika’s father testified that he had taken Jessika to the hospital when he learned of the possible sexual abuse; however, no evidence of sexual abuse was found. After an interview with a detective, Jessika’s father was told that there was not enough evidence to proceed with a sexual abuse case. Heather testified at the hearing that she had previously lived with her mother, but that she had moved in with her uncle, who lived alone, the night before. She also stated that she was working at Chick-Fil-A and had been employed there about a month and a half. While in her father’s custody, Jessika was taken by him to five with her paternal grandparents in Keifer, Oklahoma.
At a review hearing on August 6, 2001, the judge placed temporary custody of Jessika with her paternal grandparents. Jes-sika’s father testified that the reason he had taken Jessika to five with his parents was that he and his girlfriend had “gotten kicked out” of their apartment for fighting. At this same hearing, Heather testified that she and Keegan Stahl were no longer together, and he had been out of the picture since May. At the conclusion of the hearing, the trial judge stated that the reason for giving Jessika’s father custody was due to the allegations of abuse by Stahl; however, that problem had remedied itself because he was no longer in the picture. Nonetheless, due to Jessika’s father getting kicked-out of his apartment, the trial judge placed custody with the paternal grandparents and ordered DHS to conduct a check of Heather’s home, as well as Jessika’s father’s and the grandparents’ homes.
The custody hearing was set for September 4, 2001. At that hearing, Heather testified that she had gotten her life together. She no longer had a relationship with Keegan Stahl, and she had a stable household. She also testified that she was currently living with her uncle, although she had previously moved back in with her mother again.- She also had stable employment at Braum’s, and she was getting a stable form of transportation that afternoon. She was fired from her previous job of cleaning houses because she did not have transportation. She acknowledged that she had not notified DHS of her latest move, but that she planned to do so in order for DHS to conduct a check of her new home per the judge’s order.
Jessika’s paternal grandmother testified that Jessika was living with her because Jessika’s father was kicked out of his apartment; however, she was willing to let Jessika live with her. She stated that Jessika has problems with separation after her weekly visits with her mother; visitations were only allowed for one hour per week. The trial judge concluded that both of Jessika’s parents lacked stability and awarded permanent custody to Jessika’s paternal grandparents. Heather was given visitation every other Tuesday for two and one half hours, and each parent was ordered to pay the minimum child support. The FINS case was closed by this order.
Arkansas Code Annotated section 9-27-328(b) (Supp. 1999) provides in pertinent part that:
(b) When the court orders a juvenile removed from the custody of a parent, guardian, or custodian and placed in the custody of the department or other licensed agency responsible for the care of juveniles or with a relative or other individual, excluding commitments to youth services centers or juvenile detention facilities, the court shall make these specific findings in the order:
(1) Whether the removal of the juvenile is necessary to protect the health and safety of the juvenile, and the reasons therefor;
(2) Which family services were made available to the family before the removal of the juvenile;
(3) What efforts were made to provide those family services relevant to the needs of the family before the removal of the juvenile, taking into consideration whether or not the juvenile could safely remain at home while family services were provided;
(4) Why efforts made to provide the family services described did not prevent the removal of the juvenile;
(5) Whether efforts made to prevent the removal of the juvenile were reasonable, based upon the needs of the family and the juvenile; and
(6) Whether the removal is in the best interest of the juvenile.
In the case before us, the trial judge’s order consisted of the following written findings:
[P]lacement of Jessika Robbins, dob 4/14/97, with her grandparents, Kathy and Steve Robbins, was necessary to protect the health and safety of the juvenile due to both parents’ instability. The Court further finds the following: that DHS provided services to the family before custody was placed with the grandparents, that DHS was ordered to visit the mother’s home before this review hearing but mother had moved three days before the review and did not notify DHS to enable the department to visit her home; that the efforts of DHS were reasonable; that due to the instability of both parents and the lack of a home study on mother’s home due to mother’s failure to advise DHS, placement of custody of the juvenile with the grandparents is in the best interest of the juvenile.
It is clear from the order on its face that the trial judge failed to make the written findings required by the statute. Further, the evidence in the case does not support the findings that were made in the order. First, there is no evidence as to the rea sons why it was necessary to remove Jessika in order to protect her health and safety. Second, there is no evidence of services offered to the family. There is no evidence of any assistance in areas such as job placement, housing, or transportation. Consequently, there was no evidence of why those services failed or the reasonableness of any services provided. The mother in this case was initially deprived of custody due to the allegation of sexual abuse of Jessika by her boyfriend. This allegation was never proven. The “lack of stability” relied on by the trial judge in her findings is apparently a reference to the fact that the mother had changed jobs and residences; however, the State saw no need to deprive her of the custody of her other infant daughter, Jessika’s half-sibling, due to health and safety issues. Thus, even if the trial judge had made the written findings required by the statute, there is no evidence to support those findings.
The order appealed from in this case is an order granting permanent custody to a third party. This is evident from the trial judge’s award of permanent custody, visitation, and child support, and her closing of the FINS case. Awarding permanent custody to a third party is analogous to a permanent guardianship. As a general rule, there must be a finding of unfitness of the natural parents in order to give custody to a third party. See Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990); Greening v. Newman, 6 Ark. App. 261, 640 S.W.2d 463 (1982); Parks v. Crowley, 221 Ark. 340, 253 S.W.2d 561 (1952).
It is well settled that our law establishes a preference for the natural parent in third-party custody cases and that preference must prevail unless it is established that the natural parent is unfit. See Schuh, supra; Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988); Perkins v. Perkins, 266 Ark. 957, 589 S.W.2d 588 (1979); Greening, supra. This preference applies in guardianship cases as well. See Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000) (holding that a preference in Ark. Code Ann. § 28-65-204 (Supp. 2001) is given to the natural parent if that parent is determined to be suitable and qualified by the probate court).
In Schuh, our supreme court reversed the decision of the trial judge in the absence of a finding that the mother was an unfit parent and, on remand, directed the trial court to the very section of the statute that is at issue in the case before us, making it clear that there must first be a finding of unfitness of the natural parents before awarding permanent custody to a third party. Generally, the prime concern and controlling factor in child custody cases is the best interest of the child. Schuh, supra, (citing Tucker v. Tucker, 207 Ark. 359, 180 S.W.2d 571 (1944); Jones v. Jones, 13 Ark. App. 102, 680 S.W.2d 118 (1984)). When a third person seeks to deprive a parent of custody, she cannot do so without first proving that the parent is not a suitable person to have the child. Id. (citing Riley v. Vest, 235 Ark. 192, 357 S.W.2d 497 (1962)). There was no finding in this case that Jessika’s natural parents were unfit; moreover, no such finding could be supported by the evidence in this case.
In Schuh, our supreme court stated that:
The law recognizes the preferential rights of parents to their children over relatives and strangers, and where not detrimental to the welfare of the children, they are paramount, and will be respected, unless special circumstances demand that such rights be ignored. . . . Courts are very reluctant to take from the natural parents the custody of their child, and will not do so unless the parents have manifested such indifference to its welfare as indicates a lack of intention to discharge the duties imposed by the laws of nature and of the state to their offspring suitable to their station in life.
Schuh, 302 Ark. at 307, 788 S.W.2d at 741 (quoting Parks v. Crowley, 221 Ark. 340, 253 S.W.2d 561 (1952) (citations omitted)).
The findings required by Arkansas Code Annotated section 9-27-328(b) (Supp. 1999) were not made by the trial judge in this case and could not be supported by the evidence. Further, when permanent custody is granted to a third party, there must be a finding of unfitness as to the natural parents. Because these required findings were not made and the record will not support such findings, we must reverse.
Hart, Jennings, and Vaught, JJ., agree.
Neal and Roaf, JJ., concur.
Stroud, C.J., and Griffen and Crabtree, JJ., dissent.
This is further evident from the State’s letter, as the adversarial party, to the trial judge. The letter stated that it is “the position of our office that the Prosecutor’s Office has no stake in the outcome of the appeal and expresses no opinion as to who should have custody of the minor child. Therefore we will not be fifing a brief on the issue.” | [
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Andree Layton Roaf, Judge.
Charles Clements was convicted of third-degree battery, a misdemeanor, in a bench trial. However, at a later sentencing hearing, he was sentenced to five years’ probation and 100 hours of community service, and was ordered to pay a $500 fine and court costs, and a judgment and disposition order was subsequently entered for second-degree battery, a felony. On appeal, Clements argues 1) that there is insufficient evidence to support the third-degree battery verdict, and 2) that the written conviction and sentence he received for second-degree battery is illegal on its face because he was convicted instead of third-degree battery. Clements’s sufficiency argument is not preserved for our review; however, we affirm the conviction as modified to reflect that it is for third-degree battery, and remand for resentencing.
Clements was charged with second-degree battery arising from a November 7, 2000, incident in which it was alleged that he disciplined his daughter, Tonya, with a coat hanger. At trial, Tonya testified that on the morning in question, her father swatted her with a plastic coat hanger near her shoulder blades because she refused to put her tennis shoes on for school. She further stated that where she was hit stung and that a mark was left on her back. She stated her father was a school bus driver for her school, that she and her sister rode the bus he drove, and that all three of them would leave the house at 6:00 a.m. so that her father could pick up the other children in time for school. She also stated that once she got to school, she told Officer James Kesterson about what happened and that another officer came and took pictures of her back.
Officer Kesterson of the Pulaski County Sheriffs Office also testified for the State, and stated that on the morning of November 7, 2000, before he began teaching his DARE program to the class, Tonya came up to him, gave him a note, and told him to read it after class. After class, Kesterson read the note, took Tonya to the assistant principal’s office, and asked her what she wanted to talk about. After listening to Tonya, Kesterson stated that he asked the principal and vice principal to examine her back to see if there were any injuries. He testified that he also checked her back and observed what appeared to be blood under the. skin, within a deep, red mark on her back. Pictures of Tonya’s back were admitted into evidence, and the State then rested.
At the conclusion of the State’s case, defense counsel moved for a directed verdict on the grounds that the State failed to make a prima facie showing of second-degree battery in light of the supreme court’s ruling in Sykes v. State, 57 Ark. App. 5, 940 S.W.2d 888 (1997). Counsel specifically stated that the State’s evidence did not amount to the “impairment of physical condition or infliction of substantial pain” required by the definition of “physical injury” contained in Ark. Code Ann. § 5-1-102 (Repl. 2002). The trial court denied the motion.
Charles Clements then testified on his own behalf. He testified that on the morning of November 7, 2000, Tonya wanted to walk to a friend’s house to catch the bus, but that he refused to allow her to do so because it was too dangerous. He stated that Tonya had left her tennis shoes at her friend’s house as well. He stated that she got really angry about not being allowed to go and refused to get ready to get on the bus. Clements testified that after he got the bus started and put his youngest child on the bus, he came back inside to get Tonya and her sister, but that Tonya still wanted to walk to her friend’s house. He stated that he swatted Tonya on her back with the hanger to get her to get on the bus, and she complied. Clements also testified that they were running late and that he had to get the kids on the bus. He stated that he did not think of using the hanger as punishment, but as a way of getting Tonya on the bus.
At the close of all the evidence, defense counsel renewed the motion for directed verdict, and also requested that the charge be reduced to battery in the third degree. Both requests were denied, and the State then made rebuttal argument, after which defense counsel requested a presentence report. According to the abstract and record, the trial court then announced, “Okay. I’m finding he is guilty of battery in the third degree, presentence report will be ordered.” At a sentencing hearing approximately one month later, the trial court announced a sentence of five years’ probation, and a judgment written was subsequently entered reflecting a conviction for “battery second degree” and imposing sixty months’ probation. Clements appeals from this judgment and sentence.
Motions for a directed verdict are treated as challenges to the sufficiency of the State’s evidence. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999). On appeal, the issue is whether there is substantial evidence, i.e. evidence that will support a conviction, without a trier of fact being required to resort to mere speculation. Id. Evidence is viewed in the light most favorable to the State, and only evidence that supports a verdict is considered. Id.
Clements first argues that there was insufficient evidence to support his conviction for battery in the third degree because the evidence fails to prove that the force he used in disciplining his daughter fell within the definition of “physical injury” as defined by Ark. Code Ann. § 5-1-102 (Repl. 1997). He relies on Sykes v. State, 57 Ark. App. 5, 940 S.W.2d 888 (1997), in which this court reversed a second-degree battery conviction involving a grandmother who spanked her grandson with a phone cord. We held that the force applied by the grandmother fell within the exception provided by Ark. Code Ann. § 5-2-605(1) (1993) for the use of physical force by a guardian toward a child when the force is appropriate and reasonable for maintaining discipline. Clements further argues that although his conviction was for third-degree battery, a misdemeanor, the judgment entered and sentence imposed was for second-degree battery, a Class D felony. He asserts that because the sentence is thus illegal, he may raise this issue for the first time on appeal, and requests that in the alternative, if this court affirms his conviction for third-degree battery, we reduce his sentence of probation from five years to one year, the maximum authorized for a misdemeanor conviction.
In response, the State asserts that Clements’s motion for directed verdict addressed only the sufficiency of the evidence in regard to second-degree battery, and Clements should be barred from challenging the sufficiency of the evidence for third-degree battery. The State alternatively contends that the evidence is sufficient to support the conviction based on the definition of physical injury in Ark. Code Ann. § 5-1-102(14) (2001). Regarding the discrepancy between the trial court’s oral pronouncement of conviction at trial and the subsequent sentence imposed and judgment entered, the State contends that the trial court’s sentence controls, citing Standridge v. State, 290 Ark. 150, 717 S.W.2d 795 (1986), and thus the oral announcement of five years’ probation, and the subsequent entry of written judgment for second-degree battery should stand. The State does not address the significance of the court’s oral finding of guilt of only third-degree battery made at the conclusion of the trial.
We agree with Clements’s argument that the trial court’s pronouncement of verdict controls over the later sentence and written judgment. The State’s focus is upon the sentence announced by the court at the sentencing hearing while Clements’s argument goes to the conviction announced a month earlier by the trial court, which is at odds with both the sentence later imposed and written judgment entered. In Penn v. State, 57 Ark. App. 333, 945 S.W.2d 397 (1997), a case cited by Clements and more analogous than the authorities cited by the State, this court held that a trial court’s oral granting of a motion for directed verdict in a bench trial constituted an acquittal, and, based on the double-jeopardy clause, reversed and dismissed a conviction the trial court later entered. As in Penn, Clements argues that the trial court’s oral pronouncement of guilt for third-degree battery was an acquittal of the charge of second-degree battery, and former jeopardy considerations preclude treating the trial court’s oral pronouncement as simply a misstatement.
Because we agree that Clements’s conviction was for third-degree battery, we need not address the merits of his sufficiency argument. We agree with the State that Clements’s motion to the trial court addressed only second-degree battery, and Clements does not argue on appeal that the evidence was insufficient to support a conviction for second-degree battery. Moreover, at the close of his case, Clements renewed his motion for directed verdict and requested in the alternative that the trial court reduce the count to third-degree battery, further indicating that his motion was not directed to the lesser offense. Consequently, Clements has waived the opportunity to challenge on appeal the sufficiency of the evidence to support the third-degree battery conviction, and the issue is not preserved for our review. See Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). Additionally, Clements was granted one of the forms of relief he requested; therefore, he cannot complain about this favorable outcome on appeal. See Sweat v. State, 307 Ark. 406, 820 S.W.2d 459 (1991).
Although Clements has requested that we reduce his sentence to one year of probation, we deem it best to reverse and remand this case to the trial court for entry of a corrected judgment for conviction of third-degree battery and resentencing according to the trial court’s discretion.
Affirmed as modified, and remanded for resentencing.
Vaught and Crabtree, JJ., agree. | [
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George Rose Smith, Justice.
The appellant was found guilty of having sold, in September of 1974, an obscene film in violation of Ark. Stat. Ann. §§ 41-2729 et seq. (Supp. 1973). The jury fixed her punishment at a fine of $2,000 and imprisonment for two years. For reversal the appellant questions the constitutionality of the statute and the accuracy of the trial court’s instructions to the jury.
Section 1 of the statute, Act 411 of 1967, reads as follows:
Hereafter, it shall be unlawful for any person knowingly to exhibit, sell, offer to sell, give away, circulate, produce, distribute, attempt to distribute, or have in his or her possession any obscene film. [Ark. Stat. Ann. § 41-2729.]
It is first argued that the quoted language is constitutionally overbroad, because it makes mere possession of an obscene film a criminal act, contrary to the holding in Stanley v. Georgia, 394 U.S. 557 (1969). Even though the appellant was charged with the sale of an obscene film rather than with its mere possession, she argues that she has standing to question the asserted overbreadth, for otherwise the continued existence of the statute would tend to suppress constitutionally protected rights. Gooding v. Wilson, 405 U.S. 518 (1972).
A complete answer to this argument lies in the separability of that part of the statute prohibiting the possession of an obscene film. Section 3 of the Act declares possession to be a misdemeanor, but the other prohibited acts (all of which involve conduct affecting some other person) are declared to be felonies. Ark. Stat. Ann. § 41-2731. We cannot say that the two provisions are so interwoven and so interdependent that the legislature would not have passed one without the other. To the contrary, it appears to be reasonably certain that the lawmakers would have prohibited the enumerated felonies even if the misdemeanor provision had been known to be invalid. Hence the latter is separable and does not affect the constitutionality of the felony provisions. Levy v. Albright, 204 Ark. 657, 163 S.W. 2d 529 (1942).
In harmony with the Supreme Court’s decision in Miller v. California, 413 U.S. 15 (1973), we have held that our statute is not so vague as to be invalid. Herman v. State, 256 Ark. 840, 512 S.W. 2d 923 (1974), cert. den., 420 U.S. 953 (1975); Gibbs v. State, 255 Ark. 997, 504 S.W. 2d 719 (1974). The appellant argues that all three of those decisions are wrong and should not be followed, and, in effect, that the concept of obscenity cannot be defined with sufficient precision to meet constitutional standards. Needless to say, we are bound by the Supreme Court’s language in Miller. We find no reason to modify our own decisions in Herman and Gibbs. And we are by no means persuaded that the First and Fourteenth Amendments exempt traffic in obscene materials from any legislative control whatever.
Lastly, the appellant argues several asserted errors in the trial court’s detailed instructions to the jury. It is first contended that the court should not have deleted certain words (which we have italicized) from a defendant’s requested instruction telling the jury that a film cannot be deemed obscene unless it is without ideas or serious literary, artistic, political, or scientific or educational or entertainment value or other social importance. A single objection was made to the court’s several deletions, which of course did not shift to the court the burden of deciding that some but not all of the deletions were proper. Hence it is enough for us to observe that there was certainly no error in taking out the word “ideas,” else the jury would have been erroneously told that no film having ideas can be obscene.
The court was not required to strike out a reference to “contemporary community standards” in the State’s general instruction defining the issues. A similar reference was approved in Jenkins v. Georgia, 418 U.S. 153 (1974). Moreover, the same phrase was used in the appellant’s instruction number 3, which the court gave.
Three essential elements of the offense, to be proved by the State, were explained in the appellant’s requested instruction number 1. It is argued that the court should not have modified the third element by adding the phrase that we have italicized: “That the Defendant had knowledge of, or reasonably should have known, the nature, character, and content of the motion picture.” The modification, however, could not have been prejudicial in the case at bar, because precisely the same language was included in a much more explicit explanation of guilty knowledge in instruction number 17-A, which the court gave at the appellant’s own request:
The law requires that the defendant acted knowingly. This means that the State must prove beyond a reasonable doubt that the defendant had guilty knowledge. In other words, the proof must show, beyond a reasonable doubt, that the defendant knew or reasonably should have known the contents of the box which housed the motion picture were obscene, as specifically defined, to give the defendant fair notice of what material is prohibited.
Unless the proof establishes such knowledge beyond a reasonable doubt, the defendant must be acquitted.
We have considered all the arguments presented by the appellant and find them to be without merit. She appears to have received a fair trial, according to law.
Affirmed. | [
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John A. Fogleman, Justice.
This is the second appeal by the three heirs of Carrol W. Price who are the step-children of his widow and administratrix, Edith M: Price, in their efforts to force her to account for her thirteen-year administration on his estate and to obtain their share of the property of their father who died December 4, 1960. See Price v. Price, 253 Ark. 1124, 491 S.W. 2d 793. On the first appeal we disallowed the widow’s claim that the entire 3.62-acre tract on which the deceased had operated a trailer park in Jacksonville constituted her homestead. We also held that the widow was entitled to her proportionate part of the rents from that portion of the land not a part of the homestead along with the rents from the homestead itself, citing Ark. Stat. Ann. § 62-2501.3 (Repl. 1971) and Mayo v. Arkansas Valley Trust Co., 132 Ark. 64, 200 S.W. 505. We took pains to point out the duty of the administratrix, as a fiduciary, to act toward the heirs in the utmost good faith. We remanded the case for further proceedings. It is essential to the treatment of the points for reversal that we outline these proceedings in considerable detail.
Appellee’s first inventory was filed on May 29, 1973. One acre of the 3.62-acre tract, which constituted a trailer park at the time of the death of Carrol Price and has been operated as such ever since, was listed as homestead at a value of SI,850. Edith M. Price, as widow, incorporated into her inventory as administratrix an application to have this tract reserved from sale as homestead “as directed, by the March 5, 1973 opinion of the Supreme Court of Arkansas.” The remaining 2.62 acres was listed with the value “undetermined”. Personal property was listed at a total value of $327.50. Appellants filed exceptions, alleging that the widow was entitled to no more than one quarter of an acre as homestead, saying the value of the property was far in excess of $2,500, and that the personal property was grossly undervalued. On November 8, 1973, the widow, for the first time, filed a petition for allotment of dower, saying that she was entitled to 1.21 acres in addition to the homestead claimed in the inventory which she alleged had been duly reserved from sale “pursuant to Price v. Price, 253 Ark. 1124, [491 S.W. 2d 793].” Appellants responded, denying the allegations relating to the homestead.
On March 19, 1974, appellants filed their petition for removal of appellee and revocation of her letters, alleging that she had consistently failed to perform her duties and had not only failed to file a timely inventory, but had filed a grossly erroneous one, that she had claimed a homestead interest in the real estate in excess of the statutory limitation and in knowing violation of this court’s opinion on the previous appeal, and that she had not only failed to satisfactorily account for all the personal property of the estate, but had made no effort to make an accurate and true accounting.
On March 28, 1974, the court appointed Richard Adair, Myron Traylor and Bart Gray as commissioners to lay off and designate the widow’s dower by metes and bounds. The report of these commissioners was filed April 5, 1974. It described 1.21 acres as dower, saying that these lands have an estimated value of one-third of the 3.62 acre tract. On May 2, 1974, the probate court entered an order confirming the report of the commissioners. Exceptions to the report were filed May 8, 1974, alleging that the property was not susceptible to division in kind, that the commissioners failed to view the property and merely signed a report presented to them by Edith M. Price, that the commissioners failed to take into account the income from the respective parcels of the tract and that the whole tract should be rented out pursuant to Ark. Stat. Ann. § 62-716 (Repl. 1971) with one-third of the rentals paid to the widow as dower.
On August 2, 1974, Mrs. Price filed an accounting to cover the period from January 1, 1961, ending December 31, 1973. It was not in any respect in compliance with the re quirements of Ark. Stat. Ann. § 62-2803 and 2804 (Repl. 1971) and little nearer the form prescribed for an accounting than was the one before us on the earlier appeal. It does not comply with the requirements for an accounting mentioned in our opinion on that appeal. In this accounting the widow again claimed all the personal property as widow’s allowances. She showed rentals of the real property totaling SI5,984.69, relying completely upon her individual income tax returns, which she considered too bulky to attach. She claimed that one half or more of the rentals were attributable to the one acre she claimed as homestead and that S3,684.47 was the portion of rents due her as dower, leaving only $2,-584.66 for which she was accountable. In this accounting she said that there was due each stepchild the sum of S66.27 per year but that substantial duties she performed in operating the trailer camp greatly exceeded this amount and requested that the court allow her a reasonable compensation for such services on account of the real property, and asked allowance of fees for her attorney and an accountant employed by her without court authorization. She stated that, prior to the date set for hearing on the accounting, “the administratrix will file a petition for statutory allowances and a petition to sell the real property of the estate.”
Exceptions were filed August 9, 1974. Appellants alleged that the accounting was not in statutory form or in compliance with requirements for accounting; denied the allegations as to widow’s allowances, alleging that certain personal property was the property of the trailer court business; denied the widow’s entitlement to one acre as homestead; claimed interest; denied that the widow was entitled to the proportions of the rent she claimed; denied her right to employ counsel on her own terms and an accountant without permission of the court.
On August 16, 1974, appellee filed a petition alleging that it was necessary and to the best interest of the estate that its real property be sold subject to homestead and dower of the widow. On the same date, she filed a petition for award of all furniture, furnishings, appliances and related items necessary for family use and additional property of the value of SI,500. It was ordered that the petition for sale of the real estate be heard on September 3, 1974.
On August 20, 1974, a petition was filed by appellants demanding that the probate clerk appoint three commissioners pursuant to Ark. Stat. Ann. § 62-603 (Repl. 1971) to appraise the homestead claimed, and praying that the same be sold if valued in excess of $2,500. On the same date the Clerk of the Probate Court appointed Bartus M. Gray, James Peacock and Doug Wilkinson as commissioners to appraise the homestead. Still on the same day, appellants filed their response to the petition of the administratrix for sale of the real estate, alleging once more that the widow was entitled to no more than one-quarter acre of the real estate as homestead, and that the petition alleged no statutory grounds for the sale. They also filed a response to the petition for statutory allowances, asking that the widow be denied statutory allowances because of her mismanagement of the estate, conversion of rents and profits and failure to account.
On August 28, 1974, appellee filed her objections to the appointment of commissioners to appraise the homestead, saying that summons on the petition was not served on her; that the time fixed for trial and disposition was too short to permit compliance; that she had filed an accurate description of the one acre of land claimed as her homestead “as directed by the opinion of the Supreme Court in the case of Price v. Price, 253 Ark. 1124, 491 S.W. 2d 793”; that the homestead was duly reserved from sale and that such claim of homestead was served on appellant Roland Price on May 29, 1973; that on May 2, 1974, an order assigning dower was entered, no appeal was taken from this order approving the report of the commissioners, and that more than 90 days had elapsed since its entry; and that no notice was given to Edith M. Price concerning the appointment of commissioners.
Also on August 28, 1974, the appraisement of the commissioners was filed stating that the fair market value of the one acre claimed by Mrs. Price as homestead was $29,403. On the next day the administratrix moved the court to strike the appraisement because it was filed after Mrs. Price had filed objections to the petition for appraisal and because the one-acre homestead had become vested in the widow and reserved from sale on May 29, 1973.
A hearing was held on September 3 and 4, 1974, apparently on all pleadings. At the very outset the probate judge questioned the completeness of the accounting, and appellants objected to testimony by appellee to vary, explain or contradict the accounting filed.
It was agreed that the three commissioners who signed the appraisal of the homestead, if called to testify, would verify the statements made in the appraisal. Appellee objected to the testimony of the commissioners who laid off dower, however, on the ground that no motion to set aside the order of May 2, 1974, approving the report of the commissioners, had been filed within 90 days. Actually, it appears that the objection was that the hearing on appellants’ exceptions to the order on the report of the commissioners had not been heard within 90 days after it was entered, so it had become final insofar as action of the trial court was concerned because of the provisions of Ark. Stat. Ann. § 22-406.3 (Supp. 1973).
Mrs. Price testified that the value of her services would be such that there wouldn’t be anything left after deducting that value from the rents. She presented her Exhibit 1, which was a statement of net income from the trailer park as disclosed by her individual income tax returns. The exhibit was prepared by an accountant on the assumption that the returns (which he did not prepare) were correct. The accountant said that no books had been kept on the operation but that Mrs. Price had in her possession a lot of receipts and paid bills. He had attempted to allocate rents to the one-acre “homestead” and the remaining lands simply on the basis of Mrs. Price’s statement that the rents from the homestead exceeded one-half of the total.
Mrs. Price admitted a tendency to “draw a blank” when she was questioned “fast” and an inability to “remember things”. She could recall that she had testified both in 1962 and in 1972 that she had commingled the proceeds collected from the property and her social security payments, yet she claimed that virtually all expenditures she made, including those for improvements and Repairs to the property, had been made from money she received as social security and that she used the rent proceeds only when she paid a large liability which exceeded her balances from social security payments. She had testified in 1972 that after she paid water bills, she supposed that the remaining $560 per month from rents went for groceries. She did say then, however, that she did have to pay for whatever needed repairing. In 1962, she had testified that the improvements were made from the profits of the business and her money from social security. Her latest testimony still indicates a commingling of funds.
When it was pointed out that, since the net income shown by the accountant was taken from Mrs. Price’s individual income tax returns, substantial amounts taken as depreciation on those would actually result in a credit to the administratrix for those amounts, her attorney volunteered that the compensation to which she was entitled would far exceed any net amount accruing to the beneficiaries plus depreciation. The probate judge appropriately commented that this was speculation.
Other testimony and proceedings will be referred to in treatment of the specific points for reversal, in all of which we find merit.
I
THE TRIAL COURT ERRED IN ALLOWING THE ADMINISTRATRIX’ CLAIM OF HOMESTEAD, AND REFUSING TO ORDER A SALE OF THE HOMESTEAD PURSUANT TO ARK. STAT. § 62-601.
We do not agree with appellants that the value of the tract claimed as homestead, as between the widow and heirs, is to be determined on the date it is claimed by the widow. The Alabama case relied upon by appellants, Moore v. Scharf, 17 So. 933, 110 Ala. 518 (1895), is really not in point. It involved construction of Alabama statutes involving a debtor’s, not a widow’s, homestead in a case involving an issue as to whether the value of the debtor’s homestead should be determined at the time of trial or at the time it was claimed by the debtor. The court determined that the critical time in that case was the time of trial. The Alabama courts have repeatedly held, however, that the value of the homestead, when claimed by a widow, is to be determined as of the date of decedent’s death. Alford v. Claborne, 229 Ala. 401, 157 So. 226 (1934); Walton v. Walton, 256 Ala. 236, 54 So. 2d 498 (1951); Matthews v. Matthews, 253 Ala. 116, 43 So. 2d 131 (1949); Haynes v. Haynes, 236 Ala. 331, 181 So. 757 (1938); Sims v. Kitchens, 233 Ala. 484, 172 So. 638 (1937); Gray v. Weatherford, 227 Ala. 324, 149 So. 819 (1933); Ticer v. Holesapple, 226 Ala. 271, 146 So. 614 (1933).
The Supreme Court of Nebraska has also held that the value at the date of the decedent’s death governs, relying upon what it called the well settled rule that this value governs when a creditor claims that the homestead exceeds the statutory limit on value. These holdings are harmonious with our result in O’Connell v. Sewell, 191 Ark. 707, 87 S.W. 2d 985, where we held that the children’s homestead extended to an entire 160-acre tract owned by their mother at the time of her death, to the exclusion of her widower’s curtesy rights, because the entire tract was worth only $480 when she died, disregarding the fact that its value had substantially increased because of royalties from an oil lease. But appellants’ reliance is not placed solely upon this contention. They contend, and we agree, that the evidence clearly shows that the homestead claimed was in excess of $2,500 in value.
We pointed out on the first appeal that the burden was on the widow to establish the value and extent of the homestead and that she could not unilaterally and summarily select the part she claimed as homestead out of the whole tract in arbitrary or capricious disregard of the rights of others. Appellee seems to have proceeded upon the theory that this court directed that she claim one acre as her homestead. There is no justification for this position. We specifically pointed out that the homestead right was limited to a value of not more than $2,500, if in excess of one quarter of an acre. Where it exceeds that value, it is limited to one quarter acre. See also Art. 9, § 5, Constitution of Arkansas. Barnhart v. Gorman, 131 Ark. 116, 198 S.W. 880.
It is significant that Mrs. Price testified at the hearing in 1962 that the property was in the industrial area inside of Jacksonville city limits only two blocks from the interstate highway on the access road and that two apartments on the property brought $50 per month each in rents. At the 1972 hearing, prior to the first appeal, she directed her attention to the one-fourth acre upon which the dwelling house she and her husband were living in at the time of his death was located, saying that two apartments and one trailer space thereon were then renting for $190. At the hearing in September 1974, her son, whom she called as a witness, said that only one of these apartments was on the one acre she claimed as homestead and the other was on the tract she claimed as dower. The apartment he said was on this one acre seems to have been in the Price dwelling house, according to the testimony of Mrs. Price in 1962. Mrs. Price testified that the one acre claimed as homestead was the best property to rent. Her eighteen-year-old son testified that there were nine trailer spaces and one apartment on the one acre Mrs. Price had claimed as homestead, and six trailer spaces and one apartment on the 1.21 acres she claimed to have been assigned as dower. On the remaining lands, which he said were susceptible to flooding, there were three trailer spaces and room for two others, but no gas line to those spaces. He said all spaces rented for the same amount, but that the spaces on the one-acre homestead were rented most of the time and that most vacancies occurred on the lands the widow did not claim as either dower or homestead. He said the one acre claimed as homestead had 339 feet of frontage. It seems clear from the testimony that the dwelling house is located on the most valuable part of the property if the street frontage is included.
There was absolutely no evidence to support the $1,850 value assigned by Mrs. Price to the one-acre tract claimed by her. It was demonstrated by cross-examination of Mrs. Price that she had no basis at all for that figure. She admitted that it was the most valuable part of the property and that she did not know what it was worth when her husband died. When pressed, she “supposed” that she and her attorney decided what the one acre was worth and agreed on the figure used. She recalled that some of the original tract had been sold for highway right-of-way, but could not remember the consideration.
The probate judge, after hearing this evidence, held that, under our holding on the first appeal, Mrs. Price was entitled to the one acre claimed by her, saying that it was not worth more than $2,500 at the time of Carrol Price’s death. In this, he was clearly in error. When appellants’ attorney protested that they had not presented their proof on the point, the court permitted them to offer it, apparently as a proffer.
Appellant, Sandra Price Clark, testified that she was thirteen years of age when her father died and that the trailer park had been built by her father, brother, sister and herself and that her father had paid about $2,000 for the real estate. She remembered that her father had sold a strip 12’ x 250’, directly in front of the acre claimed as homestead by Mrs. Price, to the highway department for right-of-way for $4,000 in 1957. She said that the gross rental on that one acre amounted to about $300 per month when her father died. She was of the opinion that the one acre had a value of $10,000 to $20,000 at the time of her father’s death.
Patsy Price Norris was twenty years of age when her father died. She said that the trailer park was then only five years old and in good condition, and that it enjoyed 90% occupancy of the 25 trailer spaces. She said that the property then had a value of $20,000 and that the claimed homestead took up two-thirds of the frontage. She referred to the “Texaco property” on the other side of the freeway which she said sold for $142,000 for one acre. She said that she had held a job in the real estate business at one time and had a general familiarity with the income approach to property evaluation. Using this approach, by rule of thumb, she used a $10 per month net per trailer space and assigned a value of $14,400 to the one acre. She said that when her father died the net income per space was at least $10 per month.
After hearing this testimony, the probate judge seemed to be in doubt about his previous ruling, and said that it remained undecided whether the whole property should be sold and $2,500 given the widow in lieu of homestead or whether the homestead should be set aside to her. Nevertheless, the court ordered a sale of the property, pursuant to appellee’s petition, subject to the dower and homestead the widow had claimed.
Even though we might find weaknesses in the value evidence on behalf of appellants, it, together with admitted facts relating to location and advantages of the property, certainly preponderates over that of Mrs. Price, which had no reasonable basis at all.
It is clear to us that the widow has failed to meet the burden of showing that she was entitled to more than one-fourth acre homestead. It is also clear that she has borne this burden for nearly 15 years and that appellants’ contention that she was not entitled to more than one-fourth acre should have been well known to her, at least since a hearing held on June 8, 1972. At that hearing her own attorney questioned her specifically about the buildings located on the quarter acre on which her dwelling house was located. It is not absolutely clear from the record that Mrs. Price claimed that she was entitled to more than one-fourth acre as homestead prior to her brief on the first appeal. She chose not to offer any testimony of the value of the one acre she claimed as homestead other than her own at the hearing which resulted in the order from which this appeal is taken, in reliance upon the contention that the homestead was allowed by the county clerk on May 29, 1973, the same day Mrs. Price’s claim was filed and that this claim was approved by the Probate Judge on June 1, 1973 by an endorsement “Examined and Approved.” This endorsement appears on the reverse side of appellee’s inventory and we certainly cannot assume that it had the effect of allowing the homestead listed in the inventory or foreclosing the right of appellants to object. This they did pursuant to § 62-603. The one-acre tract claimed by Mrs. Price did not vest in her merely by the clerk’s reservation under § 62-602 (Repl. 1971). This statute does not provide for vesting until commissioners appointed upon the written application of an interested person have reported and then the clerk’s entry vesting title is subject to contest in the probate court. Ark. Stat. Ann. § 62-604 — 608 (Repl. 1971).
Appellee’s attorney did state that there were witnesses standing by who would testify that this acre was worth less than $2,500 but came no nearer to actually offering her testimony than an unsuccessful attempt to obtain appellants’ stipulation that one of them would testify that the tract was worth $1,500. Under these circumstances, appellee is in no position to complain if we limit our consideration to testimony that was offered in the trial court, when the record is clear that she had ample opportunity to put other testimony in the record without prejudice to her other contentions. Otherwise, this matter could shuttle back and forth between the probate court and this court for an indeterminable additional period of years.
We cannot say, however, that the court erred in not ordering a sale under Ark. Stat. Ann. § 62-605. The commissioners erroneously fixed the value, so a sale upon that basis would have been erroneous. In any event, the widow is entitled to have one quarter of an acre on which the dwelling house is situated exempted from sale.
II
THE TRIAL COURT ERRED IN ALLOWING THE DOWER CLAIM OF THE ADMINISTRATRIX.
The error in confirming the allotment of dower is obvious, unless we accept appellee’s contention that appellants were barred by passage of 90 days after the order approving the commissioner’s report without appellants’ objections having been heard. The objections were well taken. There is not even a pretense that the commissioners followed the statutes. See Ark. Stat. Ann. § 62-711 (Repl. 1971). Their testimony shows that Mrs. Price approached each of them separately with a plot plan with the homestead she claimed and the dower to be allowed already laid out, and that little if any regard was given to property values, the only consideration being that 1.21 acres was one-third of the area of the whole tract. Two of the commissioners signed the report only upon the representation of Mrs. Price that the heirs had agreed to this allotment. Only one of them even viewed the property. The layout was drawn by one of Mrs. Price’s sons.
Appellee’s reliance upon Ark. Stat. Ann. § 22-406.3 as a bar to appellants’ objections is misplaced. This section was a part of Act 358 of 1969, by which the “term of court” concept was abolished for chancery and probate courts. The section invoked only made final orders and decrees of a probate court have the same force and effect upon the expiration of 90 days after their filing with the clerk as they would previously have had upon expiration of the term of court at which rendered. This is not such an order. In the first place the order alloting dower recited that it was entered over the objections of' appellants. Within six days thereafter the exceptions of appellants were filed. There was considerable discussion about the reasons these exceptions were not earlier heard but the probate judge finally ruled that the order had not become final, but sustained the report of the commissioners on the merits.
We need not concern ourselves with the correctness of the court’s holding in this regard, because the expiration of the term has not had the same significance in probate courts as in others since the adoption of the Probate Code. The drafters obviously knew that there was need for greater flexibility in that court in regard to finality of orders in the process of administration of an estate. For good cause, the probate court may vacate or modify any order, or grant a rehearing thereon (except for any order as to which an appeal has been taken, or motion to set aside an order of probate of a will after the time allowed for contest) at any time within the time allowed for appeal after the final termination of the administration of the estate of a decedent. Ark. Stat. Ann. § 62-2015 (Repl. 1971). When an appeal is taken from the order of final distribution, all prior appealable judgments and orders to which appellant has filed objections within 60 days after the order or judgment was rendered, with certain exceptions not here applicable, may be reviewed on appeal. Brooks v. Baker, 242 Ark. 128, 412 S.W. 2d 271. Thus, the fact that appellants did not appeal from the order approving the commissioner’s report prior to the probate court’s final order, even though they might have done so, does not constitute a bar to the present appeal. Authorities and statutes which might indicate to the contrary but antedate the Probate Code are not controlling.
It is true that after cross-examining each of the three commissioners extensively appellee moved to strike their testimony on the ground that no appeal had been taken from the order assigning dower. The court’s ruling seems ambiguous. The court did not grant the motion as to any witness. As to the first, the probate judge simply said, “Let it go in for the record.” As to the second, the probate judge indicated that he understood the motion and remarked, “We will let it go in for the record.” As to the third and last, the court simply said that the motion would be noted. Even if this ambiguous language can be taken as excluding this testimony, it would have been improperly excluded, for the reasons just stated. Appellate review in probate cases is de novo, just as it is in equity. Ark. Stat. Ann. § 62-2016 g (Repl. 1971). On trial de novo on appeal in chancery cases, improperly excluded evidence will be considered. Greer v. Davis, 177 Ark. 55, 5 S.W. 2d 742; Adams v. Adams, 177 Ark. 374, 6 S.W. 2d 290.
Ill
THE TRIAL COURT ERRED IN ACCEPTING THE ADMINISTRATRIX’ PURPORTED ACCOUNTING FOR THE YEARS 1961 — 1973.
It was only after a petition to cite the administratrix to show cause why she should not be removed that she condescended to file an accounting some fifteen months after the remand in the first appeal. In spite of the fact that she testified at the 1972 hearing that she had all receipts for the past ten years and all the books and records, she listed only the net income without any attempt to state the extent and amount of expenditures for which she claimed credit and without attaching any vouchers, receipts or any documentary evidence of any kind, satisfying herself that whatever might be shown to be due by her should be offset by compensation due her.
In spite of the probate judge’s obvious dissatisfaction with appellee’s actions, expressed by his questioning the failure of the accounting to cover the period up to the date of its filing, and by his saying that the accounting was otherwise incomplete, that the widow’s attempt to offset the value of her services against the rents, without showing the amount due her, was speculative, that it looked as if she should be removed so someone could make an accounting that a judge could make “heads or tails of”, that the whole thing was a confused, conglomerated mixup and that no one could tell to what she or the other parties were entitled, and, after hearing Mrs. Price’s testimony, that the accounting was not sufficient and that it looked as if she should have to show gross income and expenses, he somehow was eventually sufficiently satisfied by this odd approach to approve the accounting.
Appellee puts great store upon her offer in the trial court of two file folders containing copies of paid bills and receipts. This offer was not made until after the hearing on the accounting had been concluded, when neither appellants nor their attorney had any opportunity to examine them. She also accords great significance to the fact that she had previously furnished appellants’ counsel with copies of her personal income tax returns and that they were made a part of her accounting at the hearing. Even so, she did not abstract these returns after appellants had failed to do so. Disregarding this, they do not comply with Ark. Stat. Ann. § 62-2804 in many respects. There are no vouchers. They are not in any way referred to in her “Accounting of Personal Representative” except to reflect the income she had received from the trailer home park and apartments. Examination of those returns discloses that a deduction for depreciation of the improvements on this property and on items of personal property that she claimed and such items as “Utilities” are shown in a lump sum. On the first appeal, we pointed out the deficiency in the purported accounting and the requirements to be met. We have no hesitation in holding that the present accounting is also deficient in many of the same respects. Mrs. Price has obviously failed to recognize that, as administratrix, she has duties and responsibilities to the heirs of Carrol Price as a fiduciary. The order approving the accounting must be set aside.
IV
THE TRIAL COURT ERRED IN ORDERING THE REAL PROPERTY OF THE ESTATE SOLD SUBJECT TO THE DOWER AND HOMESTEAD CLAIMS OF THE ADMINISTRATRIX.
Perhaps it is in the best interest of the estate that the real property of the estate be sold. We do not agree with appellants that it can be sold only to pay debts. See Ark. Stat. Ann. § 62-2704 (Repl. 1971). Doss v. Taylor, 244 Ark. 252, 424 S.W. 2d 541. Furthermore, we are not sure that the estate has no debts. We recall that we affirmed a judgment fixing a lien on the property in favor of Mrs. Price for debts of decedent paid by her on the previous appeal. We do not know whether these are a part of the disbursements for which appellee seeks credit, in view of the obscurity of the identity of these items. At any rate, we are sure that neither of the parties would desire or receive any benefit from a sale until matters pertaining to dower and homestead are settled, so the court’s order of sale will be set aside.
V
THE TRIAL COURT ERRED IN GRANTING THE WIDOW STATUTORY ALLOWANCES AND REFUSING TO MAKE SUCH ALLOWANCES TO APPELLANT, SANDRA PRICE CLARK.
We really cannot say that appellants have demonstrated reversible error in the matter of statutory allowances. Appellants complained that the personal property had been undervalued. Testimony by one of them was to the effect that some property was not listed. Still the widow was entitled to dower in the personalty to the extent of one third. Ark. Stat. Ann. § 61-202 (Repl. 1971). She valued the total at $327.50. As we understand the abstract of the record it. appears that appellants claim the personal property had a value of approximately $2,345. Of this, Mrs. Price would have been entitled to $781.67 leaving only $1,563.33. The law governing widow’s'allowances at the time of Carrol Price’s death allowed her all furniture, furnishings, appliances, implements and equipment reasonably necessary for family use and occupancy. Sec. 10, Act 255 of 1951. Again using appellants’ values, these items would total some $1,590. She then would have been entitled to an additional $1,500 in personal property for herself and the minor children (Sec. 10, Act 255 of 1951), two of which were her own sons. Of course, some part of the allowances should have gone to appellant Sandra Price Clark, but it seems to us that those items to which the widow was entitled in her own right exceeded the total value of the personal property, even if we apply the values appellants would have us use.
Of course, it is necessary that we reverse the orders and judgments of the probate court before us on appeal, except as to the widow’s rights in the personal property, and remand the case for further proceedings. In this connection it has become obvious that appellee is unsuitable for the discharge of the trust involved in acting as personal representative and that she has failed to perform duties required of her by law. Her unsuitability to act as personal representative is demonstrated by the fact that, as administratrix, she has persistently acted in the furtherance of her own interests in a manner to deprive her step-children of any benefits from their rights in their father’s property and that she has been recalcitrant about compliance with her fiduciary responsibilities and the directions of the court. She has failed to file a satisfactory account, in spite of the fact that the probate judge admonished her about,this some thirteen years ago. We do not see how this matter can ever be concluded as long as Mrs. Price remains as administratrix. We remand the case for further proceedings with instructions to the Probate Court of Pulaski County to remove Mrs. Price as administratrix of the estate. See Ark. Stat. Ann. § 62-2203 (Repl. 1971). Obviously, she cannot be allowed compensation in an indefinite amount by simply saying that her services are worth more than the heirs, collectively, are entitled to, as she persistently contends. Her entitlement to compensation is very questionable in view of Ark. Stat. Ann. § 66-2208 c (Repl. 1971), the fact that the real property has not, (at least prior to the court’s order of sale) become an asset in the hands of the personal representative, [See Ark. Stat. Ann. § 62-2401 (Repl. 1971)] the fact that she has not been authorized to operate a business [See Ark. Stat. Ann. § 62-2410 (Repl. 1971)], and the fact that she will receive and retain all the personal estate of the decedent. Nevertheless, the trial court has never made any determination as to the amount or elements of compensation of appellee, so this question may be determined upon remand.
The judgment is reversed and the cause remanded for proceedings consistent with this opinion and with our opinion on the earlier appeal.
Byrd, J., not participating.
By her response to a request for admissions, Mrs. Price confirmed this statement. | [
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Annabelle Clinton Imber, Justice.
The Arkansas Court sAppeals tice. captioned case to this court pursuant to Ark. Sup. Ct. R. l-2(b)(2) and (5). We accepted certification in order to determine whether the defenses of collateral estoppel or res judicata bar a paternity action against a third party following the entry of two divorce decrees that reflect inconsistent findings on the issue of the child’s paternity. We decline to reach the merits of this appeal because the trial court order did not cover all of the parties and their respective claims as required by Ark. R. Civ. P. 54(b). Accordingly, we must dismiss this appeal without prejudice.
John and Merigayle Triplett were married on February 13, 1982, and Megan Triplett was born on November 23, 1988. The Tripletts were subsequently divorced February 26, 1992, and Merigayle was granted custody of Megan. The divorce decree awarded John visitation rights and ordered him to pay child support and to be responsible for all of Megan’s ordinary medical and dental expenses.
On February 14, 1993, John and Merigayle remarried, but they divorced once again, pursuant to a decree filed on January 20, 1998. In the second divorce, John challenged his paternity of Megan. After DNA paternity testing was performed which excluded John as Megan’s biological father, the trial court found as a matter of fact that John is not Megan’s father.
On August 12, 1998, the Office of Child Support Enforcement (OCSE) filed a paternity action against appellee, Christopher Willis, based upon the results of a DNA paternity test which revealed a 99.98 percent probability that Willis is Megan’s biological father. Willis denied that he is the father of Megan and affirmatively pleaded the defenses of res judicata, collateral estoppel, and waiver based upon the February 26, 1992 Triplett divorce decree. Willis filed a cross-claim for damages and injunctive relief against Merigayle Triplett based upon allegations of fraud and outrage. He also requested that John Triplett be joined in the action so that he could try his cross-claims of fraud and outrage against both John and Merigayle Triplett simultaneously, and so that John’s paternity could be declared. The trial court agreed that paternity had been established by the 1992 divorce decree and dismissed the paternity action against Willis in an order entered on April 21, 1999. OCSE now appeals the trial court’s dismissal of its paternity action against Willis. '
An order that fails to adjudicate all of the claims as to all of the parties, whether presented as claims, counterclaims, cross-claims, or third party claims, is not final for purposes of appeal. Ark. R. Civ. P. 54(b); Shackelford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998); State v. Morrison, 318 Ark. 563, 885 S.W.2d 900 (1994); Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994). Although Rule 54(b) provides a method by which the trial court may direct entry of final judgment as to fewer than all of the claims or parties, where there is no attempt to comply with Rule 54(b) the order is not final and we must dismiss the appeal. Ark. R. Civ. P. 54(b); State v. Morrison, supra; Maroney v. City of Malvern, supra. The failure to comply with Rule 54(b) is a jurisdictional issue that we are obligated to raise on our own. Shackelford v. Arkansas Power & Light Co., supra; State v. Morrison, supra; Maroney v. City of Malvern, supra.
In the case before us, the order from which appeal is taken dismisses OCSE’s paternity action against separate defendant Christopher Willis, appellee here. The order, however, does not address appellee’s cross-claims for fraud and outrage against separate defendant Merigayle Triplett. According to the plain language of Rule 54(b), an order which fails to dispose of pending cross-claims in an action is not final for purposes of appeal. Ark. R. Civ. P. 54(b); Maroney v. City of Malvern, supra. In a review of the record, we find no other orders entered by the trial court disposing of the cross-claims. Although there is some indication that appellee wished to abandon his cross-claims upon entry of an order dismissing OCSE’s paternity action against him, those cross-claims remain pending until the trial court enters an order disposing of them. Shackelford v. Arkansas Power & Light Co., supra. No such order has been entered in this case; nor has there been a Rule 54(b) certification. Consequently, we are without jurisdiction and must dismiss this appeal without prejudice so that the trial court may enter a final order as to the pending cross-claims.
Appeal dismissed without prejudice. | [
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PER CURIAM.
Jimmy Easley and Vickey Wagner Easley, IAM. appellants in this matter, have filed a second amended motion for rule on clerk to enable them to file a record late in a criminal case. Counsel for the Easleys, Winston C. Mathis, accepts full responsibility for failing to file the record in timely fashion. Appellants previously filed a similar motion for rule on clerk, but it was denied because there was no information in the supreme court clerk’s office that the record had been tendered. It has now been brought to this court’s attention that the record was tendered but under an erroneous number. The record has now been tendered under the correct docket number. Appellants’ attorney, Winston C. Mathis, admits in the motion that the record was not timely filed 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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J. Fred Jones, Justice.
Harry Scoggins was convicted of larceny by bailee at a jury trial in the Crawford County Circuit Court and was sentenced to the penitentiary for a period of one year in accordance with the jury verdict. On appeal to this court Scoggins has designated the following points on which he relies for reversal:
“1. The Trial Court erred in overruling defendant’s demurrer.
2. The Trial Court erred in permitting the Prosecuting Attorney to amend the information at the beginning of the trial to change the date of the alleged offense from January 17th to January 22, 1975.
3. The Trial Court erred in refusing to grant defendant a continuance after preparation of his defense was in conformity with the original charge.
4. The Trial Court erred in permitting appellant to be tried on a felony when there was no allegation in the information that an amount had been taken in excess of $35.00 which would have been necessary to charge a felony.
5. The Trial Court erred in violating defendant’s constitutional rights by admitting into evidence a statement taken from the appellant without his having been warned that he did not have to incriminate himself and which statement was turned over to the Prosecuting Attorney for prosecution immediately and on the same date with charges being filed the next day.
6. The Trial Court erred in permitting evidence of value of goods taken when there was no allegation of value in the information.
7. The Court erred in refusing to give appellant’s requested instruction No. 3.”
We find no merit in the appellant’s assignments 2, 3 and 5.
The trial court permitted a change in the information to allege the offense was committed on January 17 rather than January 22 as originally alleged in the information and refused to grant a continuance because of the change. Under Ark. Stat. Ann. § 43-1015 (Repl. 1964) a statement in the information or indictment as to the time the alleged offense was committed is not material, further than as a statement that it was committed before the time of finding the indictment, except where the time is a material ingredient in the offense. See Crabtree v. State, 238 Ark. 358, 381 S.W. 2d 729 (1964). The granting of the appellant’s motion for continuance was within the sound discretion of the trial court and we find no abuse of his discretion under the facts in this case. See Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500 (1973) and cases there cited.
The appellant’s contention under his fifth point is likewise without merit. The statement made by appellant which was admitted into evidence was made to a private investigator who questioned the appellant concerning grain feed losses sustained by the appellant’s employer. Such statement when so made does not fall within the protection against self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution as set out in Miranda v. Arizona, 384 U.S. 436 (1966) and as argued by the appellant. The Miranda decision is cited more often than it is quoted, but in that case the court said:
“Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
In the case at bar the appellant was not in custody and he gave his statement to the agent employed by his employer in an effort to find out what was going, with the grain involved in this case. No questions were initiated by law enforcement officers in connection with the appellant’s statement and he was not deprived of his freedom of action in any significant way at the time his statement was made.
Returning now to appellant’s contentions under the other points he has raised, we conclude that the trial court erred in putting the appellant to trial for a felony (grand larceny) under the information as drafted. The information under which the appellant was charged is not abstracted but it simply charged him with “the crime of Larceny by Bailee committed as follows, to-wit:
The said Harry Scoggins in the County and State aforesaid on the 17th day of January, 1975, did unlawfully and willfully
obtain lawful possession of feed belonging to the O K Feed Mills, Inc. from the farm of Odell Shores and thereafter knowingly converted said feed to his own use contrary to the conditions under which the same shall have been obtained. Said act was in violation of Ark. Stat. Ann. 41-3929 ”
The proof was to the effect that Scoggins was a delivery truckdriver for O K Feed Mills, Inc. who furnished chicken feed in truck load lots to broiler producers and, when feed was left over at the broiler houses, upon feeding out or the sale of the broilers, it was part of Scoggins’ duties to pick up the surplus feed and deliver it back to his employer’s warehouse. The evidence is to the effect that Scoggins went into the hog raising business on a fifty-fifty profit sharing basis with another individual, and that he converted his employer’s feed to the hog production operation.
Ark. Stat. Ann. § 41-3929 (Repl. 1964) under which the appellant was charged in the information provides as follows:
“Any person who shall lawfully obtain possession as bailee of any money, goods, vehicle, aircraft, chose in ac tion, or property of any character or description including farm produce and livestock, whether or not such possession was obtained gratuitously or for a consideration, who shall thereafter knowingly receive, dispose of, conceal, convert, keep, or use said property as above described contrary to the provisions of the agreement or conditions under which the same shall have been obtained, shall be deemed guilty of larceny to the degree depending upon the value of the property involved as fixed by law, and upon conviction thereof shall be punished as in cases of larceny.”
Ark. Stat. Ann. § 41-3901 (Repl. 1964) defines larceny as the felonious stealing, taking and carrying, leading, riding or driving away the personal property of another, and the penalty for larceny as set out in § 41-3907 is as follows:
“Whoever shall be guilty of larceny when the value of the property stolen exceeds the sum of Thirty-five ($35.00) Dollars, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one [1] nor more than twenty-one [21] years. And when the value of the property stolen does not exceed the sum of Thirty-five ($35.00) "Dollars, by imprisonment in the county prison or municipal or city jail not more than one [1] year, and shall be fined in any sum not less than Ten ($10.00) Dollars nor more than Three Hundred ($300.00) Dollars.”
Thus, it is seen that the larceny of property in value of more than $35 constitutes grand larceny or a felony, and if the value is less than $35, the crime is petit larceny which is a misdemeanor.
In the case of Kightlinger v. State, 105 Ark. 172, 150 S.W. 690, the defendant was indicted, convicted and sentenced to imprisonment in the penitentiary for a term of six months for selling certain property upon which a mortgage lien existed. The appellant was indicted under a statutory provision which made it an offense for any person to sell or otherwise dispose of any property on which certain liens existed, among them a lien created by virtue of a mortgage, with intent to defeat the holder thereof in the collection of his debt secured thereby, it was further provided in the Act that a person convicted of such an offense should be deemed guilty of a felony where the debt secured by such lien exceeds the sum of $10, and the property so sold or otherwise disposed of exceeded in value the sum of $10. The Act provided that where the debt secured by the lien did not exceed the amount of $10, or where the property sold or otherwise disposed of did not exceed the sum of $10, then the person should be deemed guilty of a misdemeanor. The indictment in the Kightlinger case simply alleged, in apt and comprehensive language, that the defendant had sold certain property which was therein described, upon which a lien existed by virtue of a certain chattel mortgage executed by him, and that such sale was made without the consent of the mortgagee; but the indictment did not allege the value of the property which was sold nor the amount of the debt secured by the mortgage. The defendant interposed a demurrer to the indictment but the demurrer was overruled by the trial court. In reversing the judgment of the trial court, this court said:
“Under the provisions of the above statutes, the defendant could be guilty of a felony only where the property disposed of exceeded in value the sum of $10 and the debt secured by the mortgage exceeded in amount the sum of $10. The value of the property disposed of and the amount of the debt secured by the mortgage are therefore, of the very essence of the offense of which defendant was convicted. The offense is a graded crime, and the value of the property and the amount of the debt are elements in the punishment thereof.
When value is an element in the punishment of an offense, it must be alleged in the indictment, and it is immaterial what the crime is. Thus, in cases of larceny, the value of the article stolen must be alleged unless the statute makes the stealing of a particular thing itself a felony. Houston v. State, 13 Ark. 66; Ware v. State, 33 Ark. 567; Walker v. State, 50 Ark. 532; Shappard v. State, 42 Ala. 531; Davis v. State, 40 Ga. 229; Rapalje on Larceny and Kindred Offenses, § 109; 1 Bishop’s New Crim. Proc., §§ 541, 567; 12 Enc. Pl. & Prac. 996. Every indictment, for whatever offense, must set out all the facts which in law may influence the punishment for the commission thereof. The principle is thus stated in 2 Bishop’s New Crim. Proc., § 48: ‘If the punishment to be inflicted is greater or less, according to the value of the property, the value must be stated in the indictment, because every indictment for whatever offense must set out every fact which the law makes an element in the punishment thereof.’ 1 Wharton, Crim. Law, § 1003; Bishop on Stat. Crimes, § 427.
The punishment fixed for the crime of selling mortgaged property is influenced by and dependent upon the value of the property sold and the amount of the debt secured by the mortgage thereon, and these facts must necessarily be set out in the indictment in order to charge an offense under the above statutes.
It follows that the court erred in overruling the demurrer to the above indictment. For this error the judgment is reversed, and this cause is remanded with directions to sustain the demurrer to said indictment and for further proceedings.”
It is true, as stated by the state in its brief, that Ark. Stat. Ann. § 43-1006 (Repl. 1964) provides the language of an indictment must be certain as to the title of the prosecution, the name of the court in which the indictment is presented, and the name of the parties, and that it shall not be necessary to include statement of the acts constituting the offense unless the offense cannot be charged without doing so; that it also provides for a bill of particulars setting out the act or acts upon which it relies for conviction, when requested to do so. The state then cites Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304 (1943) for the proposition that it was not necessary to state the value of the property stolen in an information charging the commission of grand larceny. The information in Underwood did charge grand larceny and we did point out in that case that grand larceny is not defined or distinguished from petit larceny by statutory definition, but that the statute merely provides different punishment; a felony penalty in cases where the value of the property stolen is more than $10 (Now more than $35), and a misdemeanor penalty where the value is less than $10 (now less than $35). We pointed out in Underwood that the theft of property of such value to incur the felony penalty has been designated by court opinion as grand larceny and the theft of property of the lesser value designated petit larceny. In other words, in Underwood we held, in effect, that since grand and petit larceny have been so well and so long defined and distinguished as felonies and misdemeanors. by judicial decision, the charge of grand larceny in an indictment or information charges theft of such value to constitute a felony and such charge without stating value is good on demurrer.
It is true that the appellant in the case at bar could have ascertained by bill of particulars whether he was being charged with a felony or a misdemeanor under the statute, but we are of the opinion that since the value of the property involved went to the essence of the charge in the case at bar, the duty was on the state to properly advise the appellant as to whether he was charged with a misdemeanor or a felony before requiring him to plead to the charge.
Ark. Stat. Ann. § 43-1009 (Repl. 1964) provides that:
“An indictment, except in cases mentioned in the next section, must charge but one offense, but, if it may have been committed in different modes, and by different means, the indictment may allege the modes and means in the alternative.”
Section 43-1010 provides for the joinder of offenses but grand larceny and petit larceny charged under the single charge of larceny is not among them. A very practical reason why the burden is on the state to either charge grand larceny, or petit larceny, or state the value of property taken, or otherwise couch the information in terms that would advise the accused of whether he was charged with grand or petit larceny before he is required to plead to the indictment or information, is that the accused might desire to plead guilty to a mere misdemeanor carrying a maximum penalty of $300 and one year in the county or city jail, whereas, he would desire to put the state on its proof where the maximum penal ty is 21 years in the penitentiary.
It only follows from the statutorily graded offense of “larceny” that an information simply charging the accused with the crime of “larceny” would of necessity include the lesser of the two grades, petit larceny, but might or might not include the greater grade, grand larceny. Consequently, such information would be good on demurrer as to the lesser offense, petit larceny.
It is, of course, elementary law that a charge of grand larceny carries with it and includes the lesser offense of petit larceny, but a charge of petit larceny does not carry with it and include the offense of grand larceny. An accused may be convicted of the lesser offense under proper instructions when charged with the greater offense, but he cannot be convicted of the greater offense (a felony) when only charged with the lesser offense (a misdemeanor). An accused must be charged with a felony before he is convicted of having committed one.
We conclude, therefore, that the trial court erred in permitting the appellant to be put to trial on a felony when he was not charged with having committed one.
The judgment is reversed and the cause remanded. | [
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John A. Fogleman, Justice.
Appellant challenges the reasonableness of a Si0,000.00 allowance to Willie Rummel for attorney’s fees under Ark. Stat. Ann. § 66-3238 (Repl. 1966). No evidence was presented on the matter. The allowance was made by the trial judge after considerable argument of counsel on the subject. No issue is raised as to the propriety of this procedure. But see, Union Central Life Insurance Co. v. Mendenhall, 183 Ark. 25, 34 S.W. 2d 1078. Cf. Unionaid Life Insurance Co. v. Bank of Dover, 192 Ark. 123, 90 S.W. 2d 982.
The fee allowance must be reasonable. Ark. Stat. Ann. § 66-3238. Aetna Life Insurance Co. v. Taylor, 128 Ark. 155, 193 S.W. 540. Trammel, One State’s Experience with the Statutory Remedy for Insurer’s Delays - A Problem in Payment, 10 Ark. L. Rev. 439, 462 (1956). Under the circumstances here, however, the judgment must be affirmed unless appellant demonstrates, or the record shows, that the allowance is excessive. American Insurance Co. of Newark v. Dutton, 183 Ark. 595, 37 S.W. 2d 875; Union Life Insurance Co. v. Brewer, 228 Ark. 600, 309 S.W. 2d 740.
The fee is allowed only to reimburse an insurance policyholder or beneficiary for expenses incurred in enforcing the contract and to compensate him in engaging counsel thoroughly competent to protect his interests. John Hancock Mutual Life Insurance Co. v. Magers, 199 Ark. 104, 132 S.W. 2d 841; Vaughan v. Humphreys, 153 Ark. 140, 239 S.W. 730, 22 A.L.R. 1201. It is not the property of the attorney, but is indemnity to the litigant. John Hancock Mutual Life Insurance Co. v. Magers, supra; Vaughan v. Humphreys, supra. The purpose of the statute is to permit an insured to obtain the services of a competent attorney and the amount of the allowance should be such that well prepared attorneys will not avoid this class of litigation or fail to devote sufficient time for thorough preparation. Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S.W. 2d 829. it is contemplated that the allowance should not be a speculative or contingent fee but that it be such a fee as would be reasonable for a litigant to pay his attorney for prosecuting such a case. Old Republic Insurance Co. v. Alexander, supra.
In Old Republic we enumerated as pertinent factors to be considered in a case such as this the time and amount of work required of the attorney, the ability to meet the issues that arise and the sum recovered or the amount involved in the action. Similar factors to be used as guides to determining reasonableness of a fee are set out in the Code of Professional Responsibility promulgated by the American Bar Association and adopted by this court. See DR 2-106 (B); EC 2-18. They are:
1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
2. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
3. The fee customarily charged in the locality for similar legal services.
4. The amount involved and the results obtained.
5. The time limitations imposed by the client or by the circumstances.
6. The nature and length of the professional relationship with the client.
7. The experience, reputation, and ability of the lawyer or lawyers performing the services.
8. Whether the fee is fixed or contingent.
Similar treatment of the problem is given by Prof. Ray Trammell in One State’s Experience with the Statutory Remedy for Insurers - Delays - A Problem in Payment, 10 Ark. L. Rev. 439 (1956).
There is no fixed formula or policy to be considered in arriving at such fees other than the rule that the appropriately broad discretion of the trial court in such matters must not be abused. Federal Life Insurance Company v. Hase, 193 Ark. 816, 102 S.W. 2d 841.
Usually we recognize the superior perspective of the trial judge in assessing the applicable factors, because of his intimate acquaintance with the record and the quality of service rendered. Old Republic Insurance Co. v. Alexander, supra; Great American Indemnity Co. of New York v. State, 231 Ark. 181, 328 S.W. 2d 504; North River Insurance Co. v. Thompson, 190 Ark. 843, 81 S.W. 2d 19. We have not hesitated, however, to reduce allowances we deem excessive because we cannot find adequate support for them when the entire record of the case is before us. Aetna Life Insurance Co. v. Spencer, 182 Ark. 496, 32 S.W. 2d 310; Maryland Casualty Co. v. Maloney, 119 Ark. 434, 178 S.W. 387, L.R.A. 1916A 519. See also, Old American Life Insurance Co. v. Williams, 241 Ark. 250, 407 S.W. 2d 110.
In this case, the circuit judge only had the pleadings in the case and the actual trial along with the recognized skill and ackowledged experience of appellee’s attorney and that of his adversary as a basis for making this important determination. Without any disparagement of the ability and services of appellee’s attorney or discounting the skill of his adversary, we do not think these elements afford adequate basis for the $10,000.00 figure fixed by the circuit judge. We, too, resort to inspection of the record in reviewing trial court actions in this regard. Metropolitan Casualty Insurance Co. v. Chambers. 136 Ark. 84, 206 S.W. 64.
The complaint consisted of only two pages which stated the case’s rather simple issue, which was one of fact. It was whether or not appellee was entitled to benefits of $270.00 a month for total disability under a group policy issued by appellant, after they had been discontinued on the theory that Rummell was no longer permanently and totally disabled within the terms of the policy. The policy provision involved provided that the monthly payments continued after two years of disability preventing the performance of the duties of the insured’s own work, only if the disability prevented him from working in any reasonable occupation for which he was or might become fitted by education, training or experience. Thus, the only issue was whether appellee was prevented from working in any such occupation and it was resolved against appellant by the jury verdict.
Policy terms were stipulated. During the one-day trial the appellee presented the testimony of a rehabilitation counselor for the Department of Social Rehabilitation Services and the depositions of a diagnosing physician, in addition to his own. The only evidence offered by appellant was the expert opinion of an examining physician, given by deposition.
The only instructions given by the court were AMI, Civil, 102, 103 and 202, and one offered by appellee stating the effect of the pertinent policy provision.
Appellee seeks to justify the fee allowed upon the following bases: the fee was contingent in the sense that, had the judgment gone against him, his attorney would not have received any compensation; the amount involved in the litigation was $50,000; the fee allowed was a smaller percentage of the amount involved than in almost all of the numerous cases collected by appellant; considerable time and effort were expended in preparation for trial; and the circuit judge had evaluated the quality of his attorney’s skill and experience as rising far above that of the ordinary lawyer.
Appellant correctly contends that the fee should not be contingent, i.e., contingent upon the outcome of the case. Aetna Life Insurance Company v. Taylor, 128 Ark. 155, 193 S.W. 540. Mutual Life Insurance Co. v. Owen, 111 Ark. 554, 164 S.W. 720; Merchants Fire Insurance Co. v. McAdams, 88 Ark. 550, 115 S.W. 175. This basis of support for the allowance thus falls.
It does not follow, however, that the amount involved is not an element to be considered, along with the difficulty of the issues. We can agree that the testimony abstracted and the 9-3 jury verdict are indicative of the exercise of a high degree of skill in factual presentation and persuasiveness on the part of appellee’s counsel. Some difficulty arises in arriving at the amount of recovery in terms of the ultimate impact of the verdict upon future benefits. No one contends that the jury verdict for $1,350.00, the monthly payments then accrued, is the amount to be considered for fee allowance purposes. Unquestionably, this factor encompasses the future benefits which are to be paid as a result of the judgment in this case. Pacific Mutual Life Insurance Co. of California v.Jordan, 190 Ark. 941, 82 S.W. 2d 250. However, measuring this amount does present problems. We do not feel justified in accepting appellee’s estimate of $50,000.00 in benefits, based upon a total of $38,070.00 which would be paid by his 65th birthday on March 17, 1985 (when the impact of Social Security benefits would, under policy provisions and existing law, reduce the payments) and the indeterminate amount of benefits he might draw for the remainder of his life expectancy extending to 1994 under recognized mortality tables for normal adults. This estimate includes the penalty recovered and, at the same time ignores the present value of the future benefits and the testimony of appellant’s medical witness that a diabetic, as appellant was, had a life expectancy less than normal. Even following appellee’s assumption that his life expectancy is normal and that payments will continue after his 65th birthday at the rate of $100.00 a month, present value would not exceed $31,000.00 on the basis of a 6% interest rate. Not only does this figure fail to fully support appellee’s estimates, we cannot say that any of our previous cases treated by the parties afford us a sufficient comparison to be controlling. We find nothing affording any satisfactory means by which the time and effort spent in preparation for trial can be measured with any degree of accuracy. We are unaware of resort to this important factor in the trial judge’s award, as his only reference to any guideline was his consideration of the responsibility assumed by the attorney in accepting employment and preparation for trial. These factors alone do not, in our opinion, support the amount allowed. Still, we are unable to accept the vague suggestions of appellant as to the appropriate allowance. We certainly do not agree that a fee of $1,500.00 is adequate, even though we have to rely upon the trial judge’s knowledge and experience, and our own, to arrive at any amount that will cover all essential factors and insure that thoroughly competent attorneys will neither avoid such litigation nor fail to appropriately prepare for its trial. We cannot, in all due deference to the trial judge’s evaluation and in the light of our own knowledge on the subject, approve a fee allowance in excess of $5,000.00. It is our usual practice to modify the judgment by reducing the amount allowed. Mutual Life Insurance Co. of N.Y. v. Owen, 111 Ark. 554, 164 S.W. 720. We accordingly modify the judgment by reducing the allowance to that amount and affirm the judgment as thus modified.
Harris, C.J., and Byrd and Holt, JJ., dissent. | [
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George Rose Smith, Justice.
The appellant Orkin is engaged in the pest control business in many states. The appellee Weaver worked for Orkin, as a sales and service representative, from 1965 until he was discharged in 1973 for having failed to file reports of his calls upon customers. Within a week Weaver re-entered the pest control business, in partnership with another former Orkin employee. Orkin then brought this suit to enforce, by injunction, a provision in Weaver’s contract of employment by which he agreed not to engage in the pest control business in certain areas for a period of two years after the termination of his employment by Orkin. The chancellor denied relief, finding the contractual provision to be invalid. We agree with his decision.
Inasmuch as Orkin relies upon our holding in Orkin Exterminating Co. v. Murrell, 212 Ark. 449, 206 S.W. 2d 185 (1947), we may conveniently use that opinion as a basis for our discussion of this case. There Murrell had resigned as the manager of Orkin’s Little Rock office and had gone into the pest control business for himself. Murrell’s contract, as compared to Weaver’s, was less restricted as to time — one year instead of two years — but was broader as to territory. We sustained the contract, upon proof that trade secrets, special training, confidential information, and access to lists of customers were involved. We need only compare the facts in the Murrell case to the facts in this case, which are practically undisputed.
First, trade secrets and confidential information. More than 25 years ago, when Murrell was decided, there may have been such esoteric data, but according to the present record that condition no longer prevails. Training in the field is available at the college level, in Arkansas. Technical manuals upon the subject can be purchased. The Arkansas Association of Pest Control is a source of information to its members. The pesticides used in the business are available upon the open market to the public in general. Federal law requires that directions for their use be set forth on the label. The witness Henry, who was Orkin’s manager when Weaver was discharged, testified:
Q. Now, in your opinion, while this man was an employee of yours at Orkin Exterminating Company, did he have access to any trade secrets?
A. Really, I don’t believe you would call them trade secrets. It was just information that the company felt should be kept confidential. But information that if you wanted to research all facilities that are available you could come up with it.
Q. Not information that Orkin and Orkin alone had, is that correct?
A. That’s right.
In Rector-Phillips-Morse v. Vroman, 253 Ark. 750, 489 S.W. 2d 1 (1973), we held that such information — “confidential” in the sense that no company voluntarily opens its records to its competitors — is not secret information in a case such as this.
Next, the matter of special training. Weaver worked for Orkin for more than seven years, during which he attended four or five training schools. He testified: “I wouldn’t call it special training. I mean, if you have been to one meeting you have been to all of them. ” That testimony is not contradicted. There is nothing to suggest that Orkin did anything more than train its own employees, as a matter of self-interest, to be proficient in their jobs. There is no proof that similar training was not readily obtainable elsewhere.
Finally, in Murrell we stressed the former employee’s “access to all records, customers’ lists and credit ratings.” Murrell, however, was a branch manager and as such had access to all records in the office. By contrast, Weaver was a route man who was familiar only with the list of some 250 customers that he serviced every month. That familiarity was essential to the performance of his duties. Orkin’s witness Richardson, its Pine Bluff manager at the time of the trial, readily admitted that he could not think of any salesman for any company in the United States who did not have contact with customers.
In Murrell we noted that Orkin’s former employee solicited and procured “a large number” of its best customers. In the case at bar Orkin proved that it had between 702 and 850 customers who subscribed to its monthly pesticide service, plus 4,000 subscribers to its annual termite service. In its case in chief Orkin proved that Weaver obtained exactly one of its customers after he left Orkin (but it was shown later in the case that the customer in question was not even in the area protected by the contract). Weaver readily admitted, in response to questions by his own attorney, that he was servicing 18 persons or firms that “might” have been Orkin’s customers. Thus the proof at the time of trial, almost a year after Weaver’s discharge, was that he had obtained at most 18 out of the 702 monthly customers that Orkin had. Orkin’s manager admitted, however, that the company lost about 40% of its customers every year, by normal attrition.
The basic flaw in Orkin’s position is that its contract, according to its own proof, is directed not against unfair competition but against competition of any kind on the part of its former employees. Upon this point Orkin introduced its current manager, Richardson, who explained the reason for the contract, in these words:
The main reason is, you take a man, you train him in the business, you send him out to service a customer, and they develop a personal contact with the customers, personal relationships, then should they leave for any reason and go in a business of their own they still have this personal contact which means that they have the ability, the opportunity to take a customer from us as their own.
Orkin’s other witness, its former manager, Henry, testified:
Q. And this agreement was strictly an agreement that was to, in your opinion, hold down competition by former salesmen and former employees, is that correct?
A. I believe that’s absolutely the only reason for it.
Q. It had nothing to do with the trade secrets and confidential information?
A. No, sir.
Precisely the same point of view is urged in Orkin’s brief in this court: “. . . preventing a former employee from competing against his employer and using the training, skills and information acquired from his employer is a valid reason for restriction.”
If Orkin’s position is sound, then any employer in any business devoted to selling — whether the sales be of insurance, real estate, clothing, groceries, hardware, or anything else — can validly prohibit its former salesmen from engaging in that business within the vicinity for as long as two years after the termination of employment. Needless to say, the law does not provide any such protection from ordinary competition. Vander Werf v. Zunica Realty Co., 59 Ill. App. 2d 173, 208 N.E. 2d 74 (1965); Renwood Food Products v. Schaefer, 223 S.W. 2d 144 (Mo. App., 1969); Grace v. Orkin Exterminating Co., 255 S.W. 2d 279 (Tex. Civ. App., 1953); Lakeside Oil Co. v. Slutsky, 8 Wis. 2d 157, 98 N.W. 2d 415 (1959); Herbert Morris, Ltd. v. Saxelby, [1916] A.C. 688, Ann. Cas. 1916D, 537.
Orkin also relies upon a paragraph in the contract which recites that if a court should find the territorial restrictions to be unreasonable, then the restrictions are to be limited to any portions of the entire territory that were worked by the employee during any period of 90 days or more within the last twelve months preceding the termination of the agreement. We need not discuss this point, because of the invalidity of this contract is not due only to the territorial restrictions. (And see Rector-Phillips-Morse v. Vroman, supra.)
Finally, after studying the language of the contract we cannot say that the chancellor was wrong either in awarding Weaver two weeks’ separation pay or in denying him two weeks’ vacation pay.
Affirmed on direct and cross appeal.
Harris, C.J., not participating.
Fogleman, J., dissents. | [
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John A. Fogleman, Justice.
In this case, the Insurance Commissioner, after holding a hearing relative to previously approved rate filings of The Travelers Indemnity Company for voluntary private passenger automobile coverages of bodily injury and property damage liability, medical payments and physical damage, purportedly acting pursuant to Ark. Stat. Ann. §§ 66-3107, 66-3112 (Repl. 1966) and other provisions of the Arkansas Insurance Code and Ark. Stat. Ann. § 5-708, 709 (Supp. 1973) and other provisions of the Arkansas Administrative Procedure Act, issued his order directing reduction of the rate of Travelers voluntary private passenger automobile coverages of bodily injury and property damage liability and medical payments by 17% and physical damage by 17.7% effective May 1, 1974. Upon review, the circuit court held that the commissioner had the authority to make the order, but found no substantial evidence to support the commissioner’s order, even though he did find a preponderance of substantial evidence to justify a premium rate reduction of 10%, and entered judgment accordingly.
The judgment in this case must be reversed for the same reason that we today affirm the judgment of the circuit court in Monroe v. Insurance Services Office of Ark., 257 Ark. 1018 522 S.W. 2d 428 (1975). In view of this reversal, we feel that it is appropriate that we decide another question raised on cross-appeal. The trial court held that its judicial review was governed by Ark. Stat. Ann. § 66-3134 (Repl. 1966) and not by Ark. Stat. Ann. § 5-713 (Supp. 1973). Under the circumstances prevailing here, we agree with the circuit judge.
After the Insurance Commissioner’s order was entered, Travelers filed a petition for review in the Circuit Court of Pulaski County, alleging that its motion for appeal had been filed with the appellee, and a transcript of the proceeding filed with the Clerk of the Circuit Court, but appellee had asserted that the exclusive procedure for judicial review was prescribed by Ark. Stat. Ann. § 5-713. Appellant then stated that this petition was filed without conceding that appellee was correct in his contention. The record sustains appellant’s allegations.
We reject appellee’s argument on this point without hesitation. He contends that § 66-3134, a section of the Insurance Code enacted in 1959 is in irreconcilable conflict with the Administrative Procedure Act [Ark. Stat. Ann. § 5-701 et seq (Supp. 1973)] enacted in 1967, and thereby repealed. However desirable this result might be, without considering the effect of a general act on a special act or of a special act on a general one, the legislative intent is clear to us. The plain words of the Administrative Procedure Act in Ark. Stat. Ann. § 5-713, covering judicial review of an ad judication by an agency subject to the act, are, “Nothing in this Section shall be construed to limit other means of review provided by law.” If words have not lost their meaning, this sentence means exactly what it says and appellant was entirely within its rights when it sought judicial review under the appropriate Insurance Code Section. In Arkansas Savings & Loan Assn. Bd. v. Corning Savings & Loan Assn., 252 Ark. 264, 478 S.W. 2d 431, the circuit court from which the appeal from action of the board was taken had held that the Arkansas Administrative Procedure Act supplemented but did not repeal Ark. Stat. Ann. § 67-1811 (Repl. 1966), governing appeals from the action of that board. We said there that the Administrative Procedure Act provided an alternate appellate procedure and jurisdiction, and did not repeal § 67-1811.
The judgment is reversed on appeal and affirmed on cross-appeal. | [
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J. Fred Jones, Justice.
We have reconsidered this case in the light of Lewis v. City of New Orleans, 415 U.S. 130 (1974), as directed by mandate of the United States Supreme Court in its one sentence decision of April 15, 1974. The dissenting opinion of Mr. Justice Blackmun, in which the Chief Justice and Mr. Justice Rehnquist joined, sets out the facts in more detail than we did in our original opinion, Lucas v. State, 254 Ark. 584, 494 S.W. 2d 705. The facts are not germane to the issue now before us and they will not be recited again here.
The statute under which the appellants were convicted, Ark. Stat. Ann. § 41-1412 (Repl. 1964), was Act 30 of the Arkansas Legislature for 1909. It was entitled “An Act to Better Protect the Public Peace,” and it has served its purpose for more than 50 years without question as to its constitutionality until now.
We find no comparison between Ark. Stat. Ann. § 41-1412 (Repl. 1964) and the New Orleans Municipal Ordinance 828 M. C. S. § 49-7 struck down as unconstitutional in Lewis v. City of New Orleans, supra. The New Orleans Ordinance provided as follows:
“It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.”
Aside from the ambiguity in the word “opprobrious”, as pointed out in Lewis, the New Orleans Ordinance would have made it unlawful and a breach of the peace to curse, revile or use obscene language toward or with reference to any member of the city police while in the actual performance of his duty regardless of when, where, or to whom the language was used or addressed. Furthermore, the New Orleans Ordinance provided a one sided violation. It was apparently designed to protect the police force against unguarded and overemphatically expressed criticism of its members in the performance of their duty regardless of when, or where, or to whom the language was addressed, and regardless of whether the language arose from incitement, anger or frustration. In other words, the New Orleans Ordinance protected members of the police force from the use of the described language toward, or with reference to them, but did not protect the public from the same language used by any member of the city police while in the performance of their duty even when addressed directly to a member of the public who might be involved. Such is not the wording, effect or intent of Ark. Stat. Ann. § 41-1412 (Repl. 1964). Mr. Justice Powell concurring in the result reached in Lewis v. City of New Orleans, supra, clearly sets out the constitutional deficiencies in the New Orleans Ordinance, but we are of the opinion its deficiencies do not apply to Ark. Stat. Ann. § 41-1412 (Repl. 1964) as interpreted and applied by the courts of this state.
Under Ark. Stat. Ann. § 41-1412 (Repl. 1964) the language must be profane, violent, vulgar or abusive and must be directed toward or about any other person in his presence or hearing. Such language must in its common acceptation be calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or assault. When a police officer is involved, this statute applies to language used by a police officer, as well as to the language used to a police officer. It is a matter of common knowledge that many assaults, both simple and aggravated, and also many homicides, have their origin in profane, violent, vulgar, abusive or insulting language addressed to or about another person in his presence or hearing. It is also common knowledge that such language used by members of the police, when addressed to a member of the public, results in resisting arrest and more important, results in a loss of respect for law and order.
In our original opinion, Lucas v. State, supra, we attempted to distinguish Ark. Stat. Ann. § 41-1412 (Repl. 1964) from the Georgia statute, § 26-6303, struck down in Gooding v. Wilson, 405 U.S. 518 (1972). We are still of the opinion that “opprobrious words or abusive language tending to cause a breach of the peace,” as was used in the Georgia statute, is much broader than the “profane, violent, vulgar, abusive or insulting language . . . which language in its common accéptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault,” as used in the Arkansas statute, § 41-1412, supra. Unlike the standard fixed by the jury in applying the Georgia statute as was-exemplified in the case of Fish v. State, 52 S. E. 737, where the Georgia Supreme Court held that a jury question was presented under the statute by the language: “You swore a lie,” as pointed out in Gooding, supra, this court (Arkansas Supreme Court) narrow ed the language of the Arkansas statute as early as 1918 in the case of Holmes v. State, 135 Ark. 187, 204 S.W. 846. In Holmes the prosecuting witness, Hatch, was very much offended at the conduct of some boys in the community frequently calling him by the nickname “Taters” and other similar nicknames. In that case the trial court, among other instructions, gave one to the jury submitting to them for determination the question of whether or not the language used was such as in its common acceptation was calculated to arouse a person to anger and cause a breach of the peace. In reversing the judgment of the trial court and dismissing the charges, this court said:
“Counsel for appellant insist that the instruction should not have been given and that the evidence was not sufficient to warrant a conviction, in that the language used by the boys does not come within the statute. It will be observed that the statute defines the character of language constituting the offense as ‘profane, violent, abusive or insulting language * * * which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace,’ etc. The language used must be in its nature ‘profane, violent, abusive or insulting’ and it must be of that character which ‘in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault.’ It is not sufficient that the language used gives offense to the person to whom or about whom it is addressed, but is must be that which in its ordinary acceptation is calculated to give offense and to arouse to anger.
In State v. Moser, 33 Ark. 140, the defendant was accused of directing toward another person the language ‘go to hell, God damn you,’ and in passing upon the question of the guilt of the defendant, this court said that the language used was certainly profane, but that it was a question for the jury to determine whether the words were used under such circumstances as was calculated to arouse to anger the person to whom the words were addressed. In the present case the word used towards Hatch was neither profane, violent, abusive nor insulting, and was not in its common acceptation calculated to arouse a person to anger. The fact that Hatch became offended at the application to him of the nickname does not make the language such as is insulting according to its common acceptation. * * * It did not carry the implication of unlawful conduct or moral turpitude on the part of the person toward whom it was used. It was undoubtedly offensive to him and he showed his irritation repeatedly, but the statute was not intended to reach cases where persons by the use of harmless nicknames or in a spirit of fun make use of nicknames or expressions which, although they are not calculated in their common acceptation to arouse anger, do in fact give offense because of the peculiar sensibilities of the person to whom or about whom the words are used. It may be considered bad taste for men or boys to indulge in such practice, but the law was not intended to reach such cases. We know that even innocent amusement at the expense of others sometimes brings about a breach of the peace, but those are not the things which the law meant to reach by this statute. It is only the language of the kind referred to which is calculated in its ordinary acceptation to arouse to anger or cause a breach of the peace that the statute denounces.
Our conclusion is, therefore, that the testimony in the case, given its strongest force, does not establish an offense under the statute. The judgment of the circuit court is reversed and the charge against each of the defendants is dismissed.”
Thus is is seen, and we so hold, as was indicated in Smith v. Moser, supra, that before a person may be properly charged with an offense under the statute, the profane, violent, vulgar or abusive language alleged to have been employed must be such as in its common acceptation is calculated to arouse to anger, etc. and the only question for determination by the jury is whether the accused employed such language, and whether it was calculated to arouse to anger, etc. Surely no one would suggest that in order to pass constitutional muster in sustaining the convictions in the case at bar, it would be necessary for the statute to set out the exact language employed by the appellants in this case. We adhere to our former opinion that Ark. Stat. Ann. § 41-1412 (Repl. 1964) should be measured by the reasonable and common sense rules announced in Chaplinsky v. New Hampshire, 315 U.S. 568.
We conclude, therefore, that Ark. Stat. Ann. § 41-1412 (Repl. 1964) is constitutional in the light of Lewis v. City of New Orleans, supra, and that the judgment of the trial court in this case should be reaffirmed.
The judgment is affirmed.
George Rose Smith, Brown and Byrd, JJ., dissent. | [
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George Rose Smith, Justice.
Felix Green appeals from a verdict and judgment awarding the two appellees, John D. Toney and Block Realty Company, a $10,000 real estate broker’s commission for having procured the purchaser for a 20-acre tract of land sold by Green. Green contends primarily that he was entitled to a directed verdict, on the ground that there was no substantial evidence that the brokers’ services contributed to the ultimate sale of the property. We agree with the trial judge’s conclusion that the proof presented a jury question.
The facts are not essentially in dispute. In 1970 John B. May, the eventual purchaser of the land, was a contractor engaged in building apartments. Harold Dreyfuss, an associate or employee of Block Realty Company, had previously assisted May in finding property suitable for development. In the spring of 1970 May was in the market for an apartment-complex site. He turned to Dreyfuss for assistance.
Dreyfuss discussed the matter with Toney, another real estate broker, who was acquainted with Green and knew that Green owned a suitable 38-acre tract. On May 22, 1970, the parties signed an option agreement, pursuant to which May paid $1,000 for a six-month option to purchase 20 acres of Green’s land for $100,000. The agreement obligated Green to pay a $10,000 commission to Toney and Block upon the exercise of the option.
It was May’s practice to obtain an option upon a piece of land and then attempt to arrange financing for its purchase and development. In this instance he was unable to obtain financing within the six months. Shortly before the expiration of that period Green called May and learned that he would not be able to exercise the option.
Dreyfuss died before the expiration of the option. After that Toney continued his efforts to sell the property and found two prospective buyers. He testified that on January 7 or 8, 1972, he submitted an offer for the entire 38 acres that met all of Green’s stipulations. Green, according to Toney, declined that offer for “personal reasons.” Green (who is himself in the real estate business) testified that if he had sold the property to Toney’s prospect he would have paid a commission. Green was not asked to explain his personal reasons for rejecting the offer. Only four or five days later, on January 12, Green agreed to sell the 38-acre tract to May for $200,-000, which Green admits to have been his price all along for the whole tract. The appellees’ $10,000 commission, however, is based only upon the twenty acres covered by the option.
Green, in the trial court and again here, disclaims liability upon the twofold basis that the sale was not completed within the six-month term of the option and that the brokers’ efforts were not a factor in the final sale. As to the first aspect of the argument, May’s failure to exercise his option is not conclusive. If May had bought the property five minutes after the expiration of the option the brokers’ right to a commission could hardly be disputed, while if the purchase had been made five years later Green’s position would be equally strong. Between the extremes there is a middle ground that falls within the jury’s province.
A parallel situation involving an option agreement was considered in Cole v. Crump, 174 Mo. App. 215, 156 S.W. 769 (1913). There the broker found a prospect who agreed to a 65-day option to purchase the land at $60 an acre, but that prospect did not actually buy the property until four months after the expiration of a one-year extension of the option, and then he paid an increased price. In holding that a jury question was presented the court declared that though the broker “did not personally obtain the extension of the option, and though he was not actively participating when the deal was finally closed, and though the final conveyance was made after the option had expired as an enforceable obligation, he is nevertheless entitled to his commissions if it appears to the satisfaction of the jury that he was the procuring cause of the sale, and defendants received the benefit of his services thereabout. This is true, even though defendants subsequently consummated the transation with the purchaser under a modified agreement with him whereby the original price of $60 per acre was advanced to $65.” Another similar case, recognizing the broker’s right to recover although the sale was made after the expiration of the option to purchase, is Freeman v. Kinston Mfg. Co., 233 F. 58 (4th Cir. 1916).
As to the second phase of Green’s argument, there is substantial evidence to support the jury’s conclusion that the brokers were the procuring cause of the sale to May. It is undisputed that the brokers first brought May into the picture, as a prospective buyer. The jury may have concluded that Green’s unexplained rejection of one of the brokers’ prospects, followed by his acceptance of another within a few days, was an effort to avoid the payment of a commission. Inasmuch as the appellees claim compensation only with regard to the original 20 acres, it is immaterial that the final sale included other property. Belyeu v. Hudson, 179 Ark. 657, 17 S.W. 2d 865 (1929); Chandler v. Gaines-Ferguson Realty Co., 145 Ark. 262, 224 S.W. 484 (1920).
We do not consider our decision in Johnson v. Knowles, 169 Ark. 1089, 277 S.W. 868 (1925), to be controlling. There the broker’s prospect positively rejected the property at first and changed her mind later after she had occupied it as a tenant. Our conclusion was: “The sale in the present suit did not result from any act or course of conduct whatever of the plaintiff. ” No such unequivocal statement can be made upon the proof in the case at hand. The controlling issue was for the jury’s determination.
We find no error in the trial court’s instructions to the jury. Instruction 6 submitted the issues essentially as we have discussed them; there was no request that there be included an explanation of the possibility that the brokers had abandoned their efforts to sell the land to May. Green also complains of the court’s refusal to give two of his proffered instructions. Both of them, however, suggested that the brokers could not recover unless May exercised his option to purchase within the six months allowed. We have already seen that such a contention is not sound.
Affirmed.
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Carleton Harris, Chief Justice.
Kathy Johnson, Ad-ministratrix of the Estate of her husband, Ben Johnson, instituted suit in the Pulaski County Circuit Court against Arkansas Kraft Corporation, hereafter called Kraft, appellant herein, alleging that on September 1, 1970, the deceased, an employee of Chicago, Rock Island & Pacific Railroad Company, hereafter called Railroad, was killed when he was struck by pulpwood logs which fell from a railroad car; further, that the pulpwood had been loaded on the train by Kraft employees who had been negligent in the loading operation in such a manner that the pulpwood had fallen from the car. Recovery was sought on behalf of the estate, appellee’s widow, and one minor child, in the total amount of $601,936.32. Kraft answered, subsequently amending its answer, denying each and every material allegation except that the accident did occur, pleaded that the injuries resulting in Johnson’s death were caused or contributed to by his own negligence and that, in the alternative, the injuries resulted from a risk or risks which Johnson assumed. On trial, the jury rendered a judgment in the amount of $35,000 for the widow, $45,000 for the daughter, and $1,960.00 for the estate, a total of $81,960.00. The court entered a total judgment for $81,936.32, and from such judgment comes this appeal. For reversal, four points are alleged which we proceed to discuss in the order listed.
“I.
THE COURT ERRED IN ALLOWING PLAINTIFF TO ADVISE THE JURY THAT A PRIOR SETTLEMENT HAD BEEN REACHED BETWEEN PLAINTIFF AND A THIRD PARTY, CHICAGO ROCK-ISLAND & PACIFIC RAILROAD COMPANY.”
Since Ben Johnson was an employee of a railroad company, his personal representative had a cause of action against the railroad under the Federal Employer’s Liability Act for negligence resulting in the death of the decedent. Such an action was filed (prior to the litigation now before us) in Federal District Court under which an FELA recovery was sought. However, prior to trial of that case, appellee and the railroad settled for a total of $79,500.00. Prior to trial of the instant litigation, counsel for appellee disclosed an intention to inform the jury that the appellee had filed a separate suit against the railroad which had been settled for $79,500.00, and this was done over the objections of the appellant. It is argued that the court’s action in permitting the amount of this settlement to be disclosed to the jury constituted error, appellant asserting that the proper procedure was for the jury not to be apprised of the settlement, but instead, the court should credit the amount of any judgment against Kraft with the settlement amount. As authority for this position, Kraft relies upon Walton v. Tull, 234 Ark. 882, 356 S.W. 2d 20. There, Tull had sued several alleged tortfeasors for personal injuries arising out of an automobile accident but prior to trial, Tull settled his cause with one of the defendants. Subsequently, one of the defendants attempted to introduce the settlement to the jury which the trial court did not permit. On appeal, we upheld this action pointing out that though in Giem v. Williams, 215 Ark. 705, 222 S.W. 2d 800, the payment by one joint tortfeasor was considered by the jury, we did not hold that procedure to be proper in all cases. In affirming, we stated:
“The fact of settlement might have had some slight bearing upon Tull’s credibility, but this reason for admitting the proof is outweighed by the arguments for its exclusion. The evidence would have informed the jury that one of the defendants had admitted liability and might also have been used as a basis for an argument that Tull had accepted the amounts of the settlement as fair compensation for his injuries. The Uniform Contribution Among Tortfeasors Act contemplates that each tortfeasor will be credited with amounts paid by other joint tortfeasors, Ark. Stat. 34-1004, but the statute is silent about how the matter is to be handled.”
In Giem, mentioned in the previous citation, the ad-ministratrix brought suit against Giem, a general contractor, and suit was also filed against a subcontractor. The subcontractor (Tune) was dismissed as a defendant prior to the trial following his payment to the administratrix of the sum of $4,000 in return for a covenant not to sue. At the trial, Giem introduced into evidence the settlement between the subcontractor and the plaintiff. When the jury awarded the plaintiff a verdict in the amount of $8,500, Giem moved the court to credit the verdict with the $4,000 which the subcontractor had paid in settlement. The motion was denied and on appeal we affirmed, stating:
“Appellants had the right, under Section 34-1007, Ark. Stats, of 1947, to make Tune a third-party defendant, even after the appellee had dismissed as to him. But, instead of availing themselves of the said section, appellants evidently decided to proceed under Section 34-1004, Ark. Stats, of 1947, which reads: ‘Release of one tortfeasor — effect on injured person’s claim — A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.’
“At all events, as between appellants and appellee, appellants in the trial of the case before the jury obtained the full benefit of the above-quoted section by introducing into evidence, proof as to the amount of money that appellee received from Tune. Certainly, in such circumstances, appellants were not entitled to have the court — after the verdict — make the allowance again.”
In Woodard v. Holliday, 235 Ark. 744, 361 S.W. 2d 744, West Bend, a joint tortfeasor, settled with the plaintiffs and a covenant not to sue was executed. On appeal, this court cited the provisions of Section 4 of the Uniform Contribution Among Tortfeasors Act, Ark. Stat. Ann. § 34-1004 (Repl. 1962), and then stated:
“This statute was approved by this court in Giem v. Williams, 215 Ark. 705, 222 S.W. 2d 800. In that case evidence as to the amount paid by one of the joint tortfeasors was introduced into evidence at the trial of the other tortfeasor. After the verdict, the court correctly refused to reduce the amount of the. verdict by the amount paid by the other tortfeasor prior to trial, since the jury was advised of the settlement and the amount prior to reaching its verdict. [Our emphasis]. As the court said in that opinion:
‘At all events, as between appellants and appellee, appellants in the trial of the case before the jury obtained the full benefit of the above-quoted section by introducing into evidence, proof as to the amount of money that appellee received from Tune. Certainly, in such circumstances, appellants were not entitled to have the court — after the verdict — make the allowance again. ’ (Emphasis ours.)
“In the instant case, the trial court refused appellant permission to introduce evidence of West Bend’s settlement payment to appellees, but after verdict the trial court, under the theory that the law of joint tortfeasors applied, correctly credited the judgment with the $5,000 payment, since, the jury had no knowledge of the. West Bend settlement and therefore assessed the total damages of appellees." [Our emphasis].
Appellant argues that Walton v. Tull, supra, prohibits the disclosure of the Rock Island settlement to the jury, apparently contending that since Walton was handed down subsequent to Giem, the latter is controlling. We do not agree. In the first place, there is nothing in Walton which overrules Giem. The court only commented that we did not hold that the Giem procedure was proper in all cases. Walton v. Tull, supra, was handed down on March 26, 1962 (rehearing denied April 30, 1962), and the fact that Giem was not overruled is emphasized by Woodard (handed down on November 19, 1962) in the just quoted language from that case. Furthermore, in Bailey v. Stewart, 236 Ark. 80, 364 S.W. 2d 662 (February 11, 1963), the language of the opinion clearly denotes that Giem has not been overruled, though the point there in issue was not affected by either Giem or Walton. We said:
“The Giem case and the Walton case, relied upon by the trial judge, do not quite reach the point at issue. In the former we held that where the jury had been informed of a compromise payment made by another tortfeasor its amount should not have been subtracted from the verdict, as the jury had already taken it into consideration. In the Walton case we indicated (and later declared, after the trial below, in Woodard v. Holliday, 235 Ark. 744, 361 S.W. 2d 744) that such a deduction would be proper where the jury had not been told about the settlement made by the other tortfeasor.”
Actually, this court has never reversed a judgment on either basis, i.e., the jury was told, or not told, about settlement with another tortfeasor.
Appellant asserts that it was particularly prejudiced because, when the settlement was disclosed, it tended to negate in the jury’s mind the validity of two defenses it had raised, viz., contributory negligence and assumption of risk. Appellant says that the jury, having been apprised that the railroad had admitted liability, obviously concluded that the railroad did not believe the deceased was con-tributorily negligent or had assumed the risk of riding next to an overloaded freight car. It is alleged that the defense of assumption of risk was particularly weakened since under FELA (45 USC Section 54), the defense of assumption of risk was not available to the railroad; also, that under FELA, contributory negligence does not bar recovery of one who is more than 50% negligent but only diminishes it in proportion to his negligence. We are not impressed with this argument. The comment under Arkansas Model Jury instructions - Civil - § 1921 (1974) points out that the joinder of an FELA action with a common law action has been repeatedly sustained. Kraft offered instructions as to the railroad’s duty of care which were given by the court, and there was nothing to prevent additional instructions advising the jury of the law under FELA, had it so desired. Appellant was not deprived of these defenses and it certainly cannot be assumed that the jury ignored the instructions on contributory negligence and assumption of risk.
On the whole, we fail to see how prejudice occurred. Let it be remembered that Kraft could have made the railroad a third party defendant as it was entitled to do even though appellee had settled with the railroad. This, Kraft chose not to do, but instead desired to follow the strategy that as long as the settlement was not in evidence, it could argue that the railroad was the negligent party in the case and should have been sued instead of appellant. However, with the settlement being shown, appellant was still in a position to argue that it was not liable for it could point out to the jury that the railroad had already admitted that it was responsible for Johnson’s death; that it had paid $79,500 because it was liable, and certainly it could argue that the railroad would not have paid had some other company been the responsible party. In fact, this would seem to be a stronger argument than the argument appellant was deprived of making.
Be that as it may, comparatively speaking (as between appellant and appellee), the injustice to appellee would have been much more pronounced (than to appellant) had the jury not received the information about the settlement, for if the jury had not been so informed after its verdict had been reached, appellant would have asked that the amount of settlement with the railroad be credited on the amount of the judgment obtained against it. Under Woodard, this would have been proper and appellee would have wound up with an approximate $500 judgment against Kraft (for herself and daughter), or a total judgment of $80,000. This certainly would have been more unjust to appellee than any prejudice claimed by appellant, for Johnson was a 25-year-old brakeman, with an excellent work record, who had just been promoted to conductor, and with a life expectancy of 44 years.
Mr. Joseph A. Krenz, Jr., an actuary, using a 5% interest rate, testified that, considering expected earnings per annum of $13,000 to $17,000, and considering contribution to his family each year in the amount of $9,000, the amount (present value) that would have been contributed to his family over the period of his life expectancy, would be $158,964.84. It is interesting to note that this amount is within less than $2,500 of the total amounts received by appellee from the railroad settlement and the judgment against Kraft, the latter judgment also including $1,936.82 for the estate. This seems to be a clear and decisive indication that the jury, in fixing damages against Kraft, took into full consideration the settlement with Rock Island.
Though not argued by appellant, it has been suggested in conference that the court did not specifically tell the jury that the plaintiff was only entitled to one recovery of total damages and that in reaching the determination of total damages, the jury should keep in mind the $79,500 settlement with the railroad, and that total damages would include this settlement figure. The short answer to this suggestion is that there is no contention by appellant that such an instruction should have been given, or that any more comprehen sive wording should have been used when the jury was informed of the settlement. Nowhere in appellant’s brief is such an argument presented. In other words, such a position was neither taken at the trial court level nor is it set forth here. No citation of authority is necessary in saying that, aside from jurisdiction, we do not reverse cases on theories not presented by appellant to either the trial court or this court. For that matter, the fact that appellant made no motion to credit the judgment for appellee with the amount of the railroad’s settlement (see footnote 2) reveals Kraft knew the jury fully understood that any verdict reached for appellee should be in addition to the railroad compromise. Certainly, the motion would otherwise have been made.
Be that as it may, it is evident that the jury knew exactly the purpose of acquainting it with the railroad settlement.
Under the facts mentioned, considering the overall picture, we hold that no error was committed.
II.
In making this argument, appellant assumes, for purposes of argument, that it was negligent in loading the railroad car by stacking the pulpwood above the bulkheads. It is then asserted that the act of the railroad, in accepting this car, constituted the efficient intervening cause of the decedent’s death. The principal case relied upon is Cowart, Administratrix v. Casey Jones Contractor, Inc., 250 Ark. 881, 467 S.W. 2d 710. There, an action for wrongful death was instituted by the widow of a deceased employee of Bechtel Corporation, a building contractor. Recovery was sought against Casey Jones Contractor, Inc., that company supplying heavy duty lifting cranes to contractors. It was asserted that the defendant company had leased a dangerous and defective crane to Bechtel, the crane not being equipped with certain safety devices designed to prevent the mechanism from spinning during lifting operations. The Bechtel employee was killed when such spinning occurred, knocking him from the crane to the ground. We held that the actions of decedent’s employer (Bechtel) constituted an efficient, independent, and intervening proximate cause which superseded or broke the causal connection of the negligence, if any, of appellee. However, the facts there were far different from those at hand. The opinion sets out those facts.
“In the case at bar it is undisputed that the crane had been on the job site and out of the appellee lessor’s control for at least three to four weeks; that the crane was assembled on the job site and operated by the decedent’s employer, during which time the appellee exercised no control over the crane’s operation. Further, that decedent’s employer was aware during this three to four weeks of use that the two safety devices were not on this crane; that, knowing this, decedent’s employer directed him to work with or about this crane in the lifting of heavy structural steel which, according to the record, is the only time during the three to four weeks it had been so used; and that decedent’s employer admitted that it was customary, in the absence of these safety devices, to take ‘the back lay out of the cable’ before it is sent up.”
In the case before us, the railroad car had only been in possession of the railroad for a few hours, and there was no proof that employees of the railroad were aware, before the accident, that the car was improperly loaded.
It appears to us that if the car was negligently loaded by Kraft, the railroad’s negligence was its failure to discover the negligence of Kraft. We like the reasoning of the Supreme Court of Ohio in Pennsylvania Railroad Company v. Snyder, 45 N.E. 559, where a switchman (Jesse Snyder) was an employee for the Lake Shore and Michigan Southern Railway Company. Snyder was injured when he fell from a boxcar and it developed that the handhold on the ladder which was attached to the side of the car was missing. Because of this defect, he lost his balance and fell. This railway car had been furnished to Lake Shore by the Pennsylvania Railroad Company, the owner of the car. The Pennsylvania Railroad appealed a judgment against it obtained by Snyder, contending that its negligence in furnishing a defective car was not the proximate cause of Snyder’s injury for the reason that the causal connection was broken by the interven ing negligence of Lake Shore in failing to inspect the car and discover the defect. On appeal, the court said that Lake Shore Railroad was clearly negligent, but it then continued as follows:
“But it does not follow that, because the Lake Shore Company is liable for the damages sustained by the plaintiff below, the plaintiff in error may not be also. To reliéve the latter from the consequences of its negligence, it is not enough that the act of the Lake Shore Company was nearest in the order of events to the injury, nor that, without it, the injury would not have occurred. To have that effect it must have been the efficient, independent, and self-producing cause, disconnected from the negligence of the plaintiff in error. The causal connection is not broken ‘if the intervening event is one which might in the natural course of things be anticipated as not entirely improbable, and the defendant’s negligence is an essential link in the chain of causation.’ It is not essential to the liability of the plaintiff in error that its negligence should be the sole cause of the injury; but if that result was produced by the negligence of both companies, each contributing a necessary condition to the result, either or both might be held responsible at the election of the party injured. Neither could claim exoneration on account of the fault of the other. The negligence of the plaintiff in error was undoubtedly the primary cause. If it had not furnished the defective car, the injury could not have occurred.”
An instruction on intervening cause was properly given to the jury, and certainly we cannot say, as a matter of law, that there was no jury question on this issue.
III.
It is contended that the court should have directed a verdict on grounds of the deceased’s contributory negligence and assumption of risk. It is argued that the condition of the flat car (loaded with pulpwood), which contained two vertical bulkheads, one at each end of the car, was such that Johnson either knew of the height of the pulpwood in relation to the bulkheads, or should have known. All of the evidence in the case was circumstantial evidence, as will be discussed under Point IV, and while, pershaps, there were some circumstances that favor appellant’s position, they certainly were not such as to justify a directed verdict. Let it be remembered that the defense of contributory negligence, like assumption of risk, is an affirmative defense, and the burden of proof is upon the defendant. Aluminum Company of North America v. Ramsey, 89 Ark. 522, 117 S.W. 568. Also, as stated in McDonald v. Hickman, 252 Ark. 300, 478 S.W. 2d 753,’ “It is not our province to compare the negligence of the litigants when fair-minded men might reach different conclusions in the matter.”
As to assumption of risk, we find no evidence in the record that Johnson was actually aware of the dangerous condition of the cars, and without such knowledge, the doctrine cannot apply. In McDonald v. Hickman, supra, this court said:
“Assumption of risk, a harsh doctrine, depends upon actual knowledge and appreciation of the danger. As Prosser puts it: “Knowledge of the risk is the watchword of assumption of risk” Under ordinary circumstances the plaintiff will not be taken to to assume any risk of either activities or conditions of which he is ignorant. Furthermore, he must not only know of the facts which create the danger, but he must comprehend and appreciate the danger itself.’ Prosser on Torts, § 68 (4th ed., 1971). See also the Restatement of Torts (2d), § 496 D (1965), where it is stated: ‘The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates. In this it differs from the objective standard which is applied to contributory negligence.’ ”
The court instructed the jury on comparative negligence and assumption of risk and these issues were accordingly before that body in its deliberations. We cannot agree that a directed verdict should have been granted on the basis of these defenses.
IV.
Finally, it is contended that there was no substantial evidence that Johnson’s death was caused by any act of appellant, and it is asserted that appellee’s case rests entirely upon conjecture and speculation. It is true that no one saw a falling log strike Johnson, nor that anyone observed him fall from the train. It is asserted that though there was evidence that there was a pile of pulpwood in the area where drag marks left by the deceased began (Johnson was dragged approximately 423 ft. aftef hitting the ground), this condition was commonly found as a result of the switching operations of the various trains using the depot and there was no direct proof that these logs had fallen from this particular train; furthermore, that during the backing up of the train (while Johnson was still alive) some pulpwood had fallen from one of the cars in the same area where the fallen pulpwood was found.
Of course, as pointed out in Arkma Lumber Company v. Luckett, 201 Ark. 140, 143 S.W. 2d 1107, it is not necessary that an injury to established by direct proof, but if the circumstances are such to justify an inference on the part of the jury that the negligent conditions alleged produced the injury complained of, recovery can be had. We said, quoting an earlier case, “It will be sufficient if the facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred.” There was evidence that Johnson fell from the stirrup located on the right front end of the air dump car on which he was riding, and evidence that the logs in the car directly in front of the air dump car were loaded well above the bulkhead.
Mike Lanahan, Manager of Safety for Rock Island Railroad, went to the scene of the accident within two hours and conducted an investigation. He testified that from the point of the first drag marks to the point where Johnson’s body was found was approximately 423 ft.; that he saw a number of logs (pulpwood) on the right-of-way to the west of the area where the drag marks started. The witness stated that the center of the distribution of the area of the logs was between 12 ft. and 20 ft. west of the first sign of Johnson’s body being dragged. The next day, Lanahan returned to the scene and examined the car from which the pulpwood had allegedly fallen, the car being in the same location and in the same condition (except for the surfaces at the top of the bulkhead) that it was on the previous day immediately following the accident. “The day before when I climbed up on the car I noticed, oh, six or eight fragments of loose bark lying on top of that horizontal steel sheet next to the wood liner and on the top of the steel braces you see going to the right of the picture.” Lanahan testified that if the bark had gotten on the bulkhead at the time the car was being loaded, it would have blown off prior to the accident due to the wind or vibrations from the movement of the train, and that such bark was gone the day after the accident. Lanahan said that the logs in the pulpwood car directly in front of the air dump car were loaded considerably above the bulkhead, and photographic exhibits likewise reveal that the pulpwood on this car was stacked above the bulkhead; it would appear that these logs would have been directly above Johnson who, as stated, was riding on the stirrup. Lanahan stated that in his nine years of investigating accidents, he had never seen a cluster of logs (approximately 13) deposited on the railroad right-of-way like the one under discussion, and he was very positive that the car was overloaded. Medical evidence reflected that a wound on the right side of decedent’s head was consistent with his having been struck by a log, although it could also have occurred from the head bumping the crossties. In Hawkins v. Missouri-Pacific Railroad Company, Thompson, Trustee, 217 Ark. 42, 228 S.W. 2d 642, this court said:
“A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiff’s evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury.”
Certainly, in line with Hawkins, we cannot say that this evidence was so insubstantial that reasonable men could not possibly find the issues for the plaintiff. When all the circumstances are viewed, and giving appellee’s evidence its highest probative value, we think, and hold that a jury question was presented.
Affirmed.
Byrd, J., not participating.
It was agreed that the jury’s award on behalf of the estate was in excess of the damages proven and the amount was reduced by agreement.
From the record:
“ATTORNEY FOR DEFENDANT:
In Chambers and prior to the commencement of the trial, the defendant objects generally and specifically to any and all statements, testimony and references to any settlement between plaintiff and the deceased employer railroad company arising out of the Federal Court lawsuit brought about as a result of the accident giving rise to this litigation for the reason that same would be prejudicial to the defendant’s position in this cause.
“ATTORNEY FOR PLAINTIFF:
The plaintiff would like to have the record reflect that its intentions to announce the settlement and the amount of it to the jury is in response to defendant’s contention that it is entitled to a credit for the settlement.
“ATTORNEY FOR DEFENDANT:
I would contend the proper handling would be for no mention to be made with respect to settlement and the Trial Court to simply credit it on any amount returned by the jury.
“THE COURT:
Objection overruled.”
The court gave the following instruction:
“If you decide for the administration [rix] on the question of liability against Arkansas Kraft Corporation, you must fix the amount of money which will reasonably and fairly compensate the wife, child and estate for those elements of damages which you find were proximately caused by the negligence of Arkansas Kraft Corporation.” [Our emphasis].
St. Louis-San Francisco Ry. Co. v. Bishop, 182 Ark. 763, 33 S.W. 2d 383. | [
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John A. Fogleman, Justice.
Appellant was injured when struck by a motor vehicle driven by Alfred C. Henderson, the agent, servant or employee of Stuart’s Muffler Shop. The incident occurred in the intersection of .Broadway and Eighth Street in Little Rock, which is controlled by traffic lights. When struck, appellant was walking in a painted crosswalk provided for pedestrians. Appellant’s sole point for reversal is the failure of the circuit judge to include Ark. Stat. Ann. § 75-627 (b) (Repl. 1957) as a part of AMI 601 (Violation of Statute or Ordinance as Evidence of Negligence) as she requested. We find no error and affirm.
The statute which appellant insists should have been included in the instruction is a part of § 76 of Act 300 of 1937 and reads thus:
(b) whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.
Sec. 76 is a part of Art. X of the Act, which is entitled “Pedestrians’ Right & Duties.” Sec. 75 is the opening section of that article. It reads:
Section 75. Pedestrians Subject to Traffic-Control Signals. Pedestrians shall be subject to traffic-control signals at intersections as heretofore declared in this act, but at all other places pedestrians shall be accorded the privileges and shall be subject to restrictions stated in this article.
We take § 75 to be the introductory provision of this article and to govern the remaining sections including 76 (b). The latter section could not be applicable because of the traffic control signals at the intersection. Thus, we cannot say that appellant was “accorded the privileges” of § 76 (b) to the extent that Henderson could have eeen held guilty of a violation of the statute simply because he overtook and passed a vehicle stopped at the crosswalk to permit appellant to cross the roadway. For this reason, there was no error in the trial court’s refusal to include § 76 (b) in the instruction. This does not mean that a jury might not have found that appellant’s conduct constituted negligence. It simply means that the court properly refused to tell the jury that a driver’s overtaking and passing a vehicle stopped to permit appellant to pass was, in and of itself, evidence of negligence.
Since we make this disposition of the case on the merits, we do not consider appellee’s argument that the judgment should be affirmed because of appellant’s failure to designate sufficient record for review of the point relied upon by her and because of her failure to file a statement of the points to be relied upon, after having filed a less-then-complete record.
The judgment is affirmed. | [
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ROBERT L. Brown, Justice.
This appeal is from an order ice. summary judgment in favor of the appellees, Stewart Essex and Turpin Funeral Home. The appellants, Carl Crockett, Monica Crockett, and Michael Crockett (“the Crocketts”), who were the plaintiffs before the trial court, contended in their direct appeal that the trial court erred in granting summary judgment in favor of Essex and the funeral home. The court of appeals in a four-to-two decision agreed that the trial court’s summary judgment order should be reversed. Crockett v. Essex, 69 Ark. App. 45, 9 S.W.3d 561 (2000). Essex and the funeral home petitioned this court for review pursuant to Ark. Sup. Ct. R. 2-4(c), and we granted the petition. When we grant a petition for review, we consider the matter as if the appeal had originally been filed in this court. See Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). We affirm the trial court and reverse the court of appeals.
On August 19, 1997, Dorothy Lee Baker Crockett died in Arkansas County. She was the wife of Carl Crockett and the mother of Monica and Michael Crockett. Carl Crockett contracted with Turpin Funeral Home in Stuttgart to provide funeral and burial services. Stewart Essex is the funeral director of Turpin Funeral Home. On August 21, 1997, the funeral service for Dorothy Crockett took place at the funeral home, followed by her burial.
On January 2, 1998, the Crocketts filed a second amended complaint against Essex and the funeral home. In that complaint, they alleged the following conduct by the defendants in connection with Dorothy Crockett’s funeral:
• that Essex had urged participants to hurry and shorten the funeral service at the funeral home;
• that Essex hurried the hearse to the gravesite, leaving some mourners who would have been in the funeral procession behind and driving in excess of sixty-five miles per hour;
• that Essex and the employees and agents of the funeral home acted annoyed and hurried the burial service;
• that Essex, in an attempt to speed up the burial, put a disabled family member in another family member’s car and drove the vehicle over graves and grave stones; and
• that during the burial service, Essex got in his car and talked on his cellular telephone for an extended period of time.
The Crocketts claimed that these were negligent and intentional acts committed by Essex and the funeral home which were extreme and outrageous and resulted in emotional distress. They further claimed that the acts constituted a willful breach of contract. The Crocketts prayed for compensatory and punitive damages. Next, the Crocketts propounded interrogatories to Essex, which he answered under oath. According to the supplemental abstract filed by the appellees in this case, Essex gave the following answers:
INTERROGATORY NO. 22: Were you operating the hearse from Turpin Funeral Home to the Crockett gravesite on 8/21/97? If so, please state:
(a) Your best estimate of the top speed the hearse attained on the way to the Crockett gravesite?
(b) Whether the procession behind the hearse was orderly?
(c) The approximate distance between Turpin Funeral Home and the Crockett gravesite.
ANSWER: Yes.
(a) We try to maintain highway speed so not to interfere with other traffic.
(b) As far as I could tell.
(c) Twenty-Five (25) miles.
INTERROGATORY NO. 23: What is your best estimate of the time that elapsed between the time the Crockett service at Turpin Funeral Home ended and when the hearse departed for the gravesite?
ANSWER: Thirty (30) minutes.
Essex and the funeral home moved for summary judgment on the basis that the Crocketts had failed to establish any of their asserted causes of action, and they asked for dismissal of the complaint. Following arguments by counsel, the trial court entered an order granting the appellees’ motion for summary judgment.
In their appeal, the Crocketts claim that the trial court erred in granting summary judgment because their complaint did state a cause of action for the tort of outrage. We begin by observing that counsel for the Crocketts waived any argument concerning breach of contract at the hearing before the trial court. We further observe that no argument regarding a negligence claim is made in this appeal, and we conclude that the Crocketts have abandoned any claim that summary judgment was erroneously granted for that cause of action as well. We, thus, consider the Crocketts’ contention that their outrage claim should have survived a grant of summary judgment as their sole ground for reversal.
In this connection, the Crocketts maintain that the trial court granted a dismissal in its order because that is what the appellees asked for in their motion. Dismissal, they point out, is generally associated with a motion under Rule 12(b) of the Arkansas Rules of Civil Procedure. We disagree with the Crocketts’ argument. The motion in this matter was styled as one for summary judgment, and the motion asserted that the Crocketts had failed to establish any of their causes of action; not that they had failed to state a claim for relief. In addition, we presume that the trial court considered matters outside the pleadings, such as Essex’s answers to interrogatories, unless the court specifically excluded them. Martin v. Arthur, supra; Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). Consideration of matters outside the pleadings would convert a motion to dismiss into one for summary judgment in any event. Id. We conclude, accordingly, that the motion and subsequent order are for summary judgment, even though the motion sought “dismissal” of the Crocketts’ complaint.
In the case of Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997), this court set forth our standards of review for summary judgment appeals:
In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.
Renfro v. Adkins, 323 Ark. 288, 295, 914 S.W.2d 306, 309-10 (1996) (internal citations omitted); Cash v. Lim, 322 Ark. 359, 360-62, 908 S.W.2d 655, 656-57 (1995); Oglesby v. Baptist Medical Sys., 319 Ark. 280, 284, 891 S.W.2d 48, 50 (1995). Once a moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must demonstrate a genuine issue of material fact by meeting proof with proof. Renfro v. Adkins, supra.
Milam, 321 Ark. at 261-262, 937 S.W.2d at 656. Furthermore, the moving party may present pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, to support the burden of showing entitlement to summary judgment as a matter of law. See Stockton v. Sentry Ins., 331 Ark. 507, 989 S.W.2d 914 (1999); see also Ark. R. Civ. P. 56 (2000).
We turn then to the merits of this appeal and begin with a discussion of our caselaw relating to the tort of outrage. Two years ago, we described the elements of a tort-of-outrage claim:
To establish an outrage claim, a plaintiff must demonstrate the following elements: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was “extreme and outrageous,” was “beyond all possible bounds of decency,” and was “utterly intolerable in a civilized community”; (3) the actions of the defendant were the cause of the plaintiff’s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). The type of conduct that meets the standard for outrage must be determined on a case-by-case basis. Hollomon v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996). This court gives a narrow view to the tort of outrage, and requires clear-cut proof to establish the elements in outrage cases. Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996). Merely describing the conduct as outrageous does not make it so. Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996). Clear-cut proof, however, does not mean proof greater than a preponderance of the evidence. Croom, 323 Ark. 95, 913 S.W.2d 283.
McQuay v. Guntharp, 331 Ark. 466, 470-471, 963 S.W.2d 583, 585 (1998). We have taken a strict approach in determining the validity of outrage cases, and recognized that “the tort of outrage should not and does not open the doors of the courts to every slight insult or indignity one must endure in life.” Travelers Ins. Co. v. Smith, 338 Ark. 81, 89, 991 S.W.2d 591 (1999), citing Tandy Corp. v. Bone, 283 Ark. 399, 405, 678 S.W.2d 312, 315 (1984).
Three of our outrage cases which deal with death appear especially pertinent to the instant case. They are: Travelers Ins. Co. v. Smith, supra; Neff v. St. Paul Fire and Marine Ins. Co., 304 Ark. 18, 799 S.W.2d 795 (1990); and Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984). In Travelers, the burial of the deceased was delayed by the insurance company’s failure to move with dispatch to have the requested autopsy performed. Due to this delay, the body was not embalmed, and it deteriorated to such an extent that the family could not have an open casket at the funeral. The family members reported that the delay in burial had caused extreme emotional distress, including anxiety over the lost chance to say farewell to their father and nightmares.
In our decision in Travelers, we recognized that a quasi-property right in dead bodies vests in the nearest relatives of the deceased and that the rights to possession, custody, and control of the body for purposes of burial are within the protection of the law. We noted in our decision that courts have recognized that there is a right to a decent burial, corresponding to the common-law right to bury one’s dead in order to maintain public health and human decency. Mindful of the importance in which our society and the common law have held the family’s right to bury their dead, and the civil liability imposed for the wrongful interference with that right, we held that the trial court correcdy denied a directed verdict in favor of the insurance company on the outrage claim.
The second case that bears mention is Growth Properties I v. Cannon, supra, where we affirmed compensatory and punitive damages for the tort of outrage. In that case, the cemetery owners constructed a french drain and in the process drove heavy equipment across several gravesites, which exposed the vaults of the plaintiffs’ deceased relatives. When the family members complained, one employee for the contractor countered that they should not return to the cemetery until the work was completed. We affirmed the damages awarded and emphasized that the construction company had alternative means to accomplish the drainage project which would not have involved desecration of the graves.
Finally, there is the case of Neff v. St. Paul Fire and Marine Ins. Co., supra. In Neff, a mother gave birth at a Fayetteville hospital to a stillborn fetus. The hospital released the fetus to the husband and father, who later that evening was arrested for DWI in Huntsville in the next county. Both the husband and the fetus were placed in the county jail. When the mother complained, a hospital employee told her that she could go to Huntsville to claim the fetus. We held that this activity by the hospital did not constitute the tort of outrage. We stated that the hospital had the right to release the remains to the husband-father, who was more at fault in his conduct than the hospital. We affirmed the grant of summary judgment in favor of the insurance carrier for the hospital.
The allegations in the case before us are that the funeral service and burial orchestrated by Essex and the funeral home were conducted in a hurried manner, that the hearse was driven too fast to the grave, that a disabled family member was taken by car over the graves of unknown persons, and that Essex talked on a cellular phone in his car for a prolonged period of time during the burial. The answers to interrogatories submitted by Essex contain an explanation for the speed maintained by the driver of the hearse. He explained that the funeral home tried to maintain highway speed so as not to interfere with other traffic; that as far as he could tell the procession behind the hearse was orderly; that it was about twenty-five miles from the funeral home to the grave site; and that the hearse did not leave the funeral home until thirty minutes after the service. The Crocketts presented no proof to refute Essex’s answers to interrogatories, which were submitted under oath.
While the conduct of the funeral home and Essex as its director may have been rude and illustrative of a lack of professionalism, we cannot say that the conduct was so extreme and outrageous as to be beyond all possible bounds of decency, and to be utterly intolerable in a civilized society. The body was not mishandled as was the case in Travelers Ins. Co. v. Smith, supra. Nor were the graves of deceased family members desecrated, which occurred in Growth Properties I v. Cannon, supra. We do acknowledge that family members of a deceased person are understandably more sensitive and vulnerable following the death of a close relative, rendering them more susceptible to outrageous conduct. But the facts asserted in this case simply cannot support an action for outrage.
Affirmed. | [
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PER CURIAM.
Appellant Albert Allen Dirickson, by and through AM. attorney, has filed a motion for belated appeal. His attorney, Norman G. Cox, admits by motion that the appeal was not timely filed 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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TOM GLAZE, Justice.
This case was initially submitted to this tice. the constitutionality of the Grandparents Visitation Rights Act, see Ark. Code Ann. § 9-13-103 (Repl. 1998), but before the court could consider the case on its merits, the court was confronted with whether the order from which the grandparents, Charles and Angela Young, appealed was a final order, and whether the Youngs had filed a timely record in accordance with Rule 5 of the Arkansas Rules of Appellate Procedure— Civil. We requested the Youngs and the Department of Human Services (DHS) to submit briefs on these two issues. See Osburn v. Arkansas Dep’t of Human Servs., 340 Ark. 201, 8 S.W.3d 533 (2000). They have done so, and upon reviewing their respective arguments, we conclude we must dismiss this appeal.
Because the Youngs have failed to file their record in a timely manner, that failure alone procedurally bars the Youngs from proceeding, so we need not consider and decide if the lower court’s August 2, 1999, order terminating the Youngs’ visitation rights was a final order from which they may appeal under Ark. R. App. P.— Civil 2, and Ark. R. Civ. P. 54(b) (1999).
After the trial court entered its August 2, 1999 order, the Youngs filed a timely notice of appeal on August 31, 1999. See Ark. R. App. P. — Civ. 4(a) (1999). However, after filing the notice of appeal, the Youngs were then obliged to file their record with the Supreme Court Clerk within ninety days from August 31. That ninety-day deadline ended on November 29, 1999. See Ark. R. App. P.— Civ. 5(a) (1999). Alternatively, the Youngs were required to seek an extension of time under Ark. R. App. P. — Civ. 5(b), and that extension was required to be entered before the expiration of the fifing period as originally prescribed. The trial court’s order extending the time in which to file the record was not entered until December 2, 1999, after the time in which to request such an extension had already expired. Indeed, the Youngs themselves never requested an extension. For these reasons, the Youngs are now procedurally precluded from pursuing their appeal. See Mitchell v. City of Mountain View, 304 Ark. 585, 803 S.W.2d 556 (1991). As this court has previously explained, the purpose of Rule 5 is to efiminate unnecessary delay in the docketing of appeals, and compliance with the rule is expected so that lawsuits may proceed as expeditiously as possible. See Alexander v. Beaumont, 275 Ark. 357, 629 S.W.2d 300 (1982).
For the reasons above, we dismiss this appeal.
ThorntonJ., not participating.
Our earlier per curiam opinion in this case incorrectly recited August 20, 1999, as the date of filing the notice of appeal. | [
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LAVENSKI R. SMITH, Justice.
The State filed this interlocutory appeal ice. Carroll County Circuit Court’s pretrial order suppressing evidence of drug activity seized from Appellee Jerry Dean Howard’s residence and property in rural Carroll County. The trial court found the search warrant invalid due to its inaccurate property description. The State contends the trial court erred as a matter of law due to the rural nature of the property. It contends that naming the owner of rural property is sufficiently particular under Arkansas law. The State appealed this case to the court of appeals, which certified it to this court pursuant to Arkansas Supreme Court Rule l-2(d).
Facts
On the morning of May 31, 1998, Carroll County Sheriff Deputy Greg Lester prepared a search warrant with a supporting affidavit. Lester also signed the affidavit for the search warrant. Deputy Lester then presented them to Municipal Court Judge Kent Coxsey, who signed the search warrant based on the representations made under oath by Lester and in the affidavit. The affidavit and warrant both described the property to be searched as follows:
The residence located at Route #2 on County Road #517, Berryville, AR, a one story, off-white single family dwelling located on the northeast side of County Road #517, outbuildings located on this same property, the pond and surrounding area (suspected to be commonly owned by Jimmy and Jerry Howard), and vehicles located on this same property, currently occupied by Jerry Howard, Venus Howard, Sue Howard, and Cody Howard.
Thereafter, Lester, Officer Marr, and other officers from the Carroll County Sheriff’s Department executed the warrant on Jerry’s residence and property and on his brothers residence and property in Carroll County, with the search turning up evidence of methamphetamine manufacturing and other drug activity. Police arrested and the prosecutor charged Jerry, his brother Jimmy, who also lived in a house on the same county road, Brenda Kay Proctor, Susan Greer Howard, Steve Orion Howard, and Cody Howard with several drug-related crimes in an information filed on July 31, 1998.
Jerry’s attorney filed a motion to suppress the evidence obtained in the search, and the trial court held hearings April 19, 1999, and May 10, 1999. During the hearings, the State presented testimony from Officers Lester and Marr and Judge Coxsey regarding the collection of evidence for and issuance of the affidavit and search warrant. The defense then presented testimony by Jerry and Steve Howard, and presented a videotape depicting the county road and property owned by Jerry.
According to the testimony of Officer Lester, the Carroll County Sheriff’s Department first received a phone call from an informant approximately one year before this search was conducted regarding possible drug activity taking place at Jimmy’s residence. Then, about three weeks before the search of the property, the department began receiving “many” calls, approximately ten to fifteen calls, from informants telling the officers that the Howards, specifically Jimmy Howard, were manufacturing methamphetamine at their houses.
Officer Lester testified that a few days before the search was conducted, he questioned a confidential informant, informant #175, who had just been arrested. The informant indicated that she had just been to Jimmy’s residence and that Jimmy was manufacturing methamphetamine. In order to test the veracity of this informant’s information, Officer Lester questioned the informant about the location and layout of Jimmy’s residence. Officer Lester testified that he had knowledge of the details of this residence because he had served an eviction notice, or notice of detainer, on Jimmy at his residence. Officer Lester testified that the details the informant provided indicated to him that she had, in fact, been at Jimmy’s residence and that she had witnessed illegal activity taking place.
With regard to the warrant for Jerry’s residence, Officer Lester testified that he supported the affidavit for the search warrant by references to the anonymous phone calls to the sheriff’s department and by “inadvertent confidential informants” who had been to the residences. These “inadvertent” informants were people Officer Lester heard speaking on an audio tape regarding another drug suspect, and these informants spoke of the Howard residences “on the mountain.” After an objection by the defense that this information was not in the affidavit for the warrant, Officer Lester then testified that he based the affidavit for the search of Jerry’s residence on the information provide by confidential informant #175.
On cross-examination, Officer Lester indicated that he did not include a house number or residence address on the warrant for the search of Jerry’s house because he did not think that there were any other houses on the county road besides Jerry’s house and Jimmy’s house. He indicated that another house, Sue Howard’s sister’s house, was close to the Howards’ houses but was on a different county road. Officer Lester also indicated that he described Jerry’s house as a one-story, off-white, single-family dwelling located on the northeast side of County Road #517. He also indicated that the pond was described as being part of Jimmy’s property and Jerry’s property, and that a large metal shed was actually across the county road although that was not indicated in the affidavit. Officer Lester indicated that he included all of the outbuildings, in general, in both of the affidavits for warrants, and that the confidential informant who gave him his information did not indicate that there were any drugs or drug activity in the metal shed or building across the county road from the property.
Regarding the residents of the two houses searched, Officer Lester indicated that he knew that Jerry and his wife Susan, and their son Steve lived in Jerry’s house, and that possibly Venus, Jerry’s and Susan’s daughter, did too. Officer Lester also indicated that he knew that Jimmy, Brenda, and Cody Howard lived in Jimmy’s house, despite the fact that the affidavit and warrant indicated that Jerry, Venus, Susan, and Cody Howard lived in Jerry’s house. Officer Lester testified that he did not look at any deeds to determine who actually owned the property, nor was he aware that these tracts of land were part of a subdivision. He indicated that the department believed that both Jimmy and Jerry jointly owned the property, but he also indicated that the wooden shed allegedly containing the methamphetamine lab was on Jimmy’s property. Officer Lester testified that he was part of the team that searched Jimmy’s house, not Jerry’s house.
Judge Coxsey testified that he signed the search warrant based on the fact that he believed that there was probable cause to search the named premises. Officer Marr next testified, and he indicated that he was part of the team that searched Jerry’s house and property. According to Officer Marr, the confidential informant told him and Officer Lester that she had seen the production of methamphetamines in a shed behind Jerry’s house, as well as sales being made at both residences, and paraphernalia at both residences and in some outbuildings on the property approximately one week before she spoke to the officers. Officer Marr also testified concerning the information received from the confidential informant, and he stated that the informant indicated that the Howards were working back and forth between Jimmy’s and Jerry’s houses and property. Officer Marr indicated that the informant told him that a methamphetamine “cook” took place in the shed behind Jerry’s house, and he acknowledged that that would have been a different story than the one the informant told Officer Lester that the “cook” had taken place in the shed behind Jimmy’s house down by the pond. Officer Marr testified that they did not know who owned the shed or pump house by the pond, and that they took no steps to investigate on whose land that building was located. Officer Marr also indicated that he could not provide a reason why Cody Howard was listed as a resident of both Jimmy’s and Jerry’s houses, and he acknowledged that Cody could not be a resident of both despite the fact that he was listed on both affidavits and warrants as such.
The defense presented testimony from Jerry, who noted that he owned both residences at issue in the warrants. He took over the bank loan on Jimmy’s land to avoid foreclosure. Jerry testified about a videotape he made for the hearing which shows the county road from the beginning to his residence. Jerry testified that several houses are located along the road, including his and Jimmy’s, as well as Gail Howard’s house, a house owned by someone named Chris, Brandon Smith’s house, Sam Dada’s house, and James and Kay McNutt’s house. Jerry also testified regarding the location of several outbuildings on his and Jimmy’s property. Finally, Steve Howard testified regarding his presence at the search of Jerry’s house.
After the hearing, the circuit judge issued his four-page decision filed June 21, 1998, finding that the search warrant did not sufficiently describe the property to be searched. As such, the court suppressed the evidence seized in the search of Jerry’s and Jimmy’s property. The State appealed this ruling on June 24, 1999, to the court of appeals, which certified it to this court for review.
Standard of Review
In reviewing a case involving the suppression of evidence, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling is clearly erroneous or against the preponderance of the evidence. State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999); Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998). In making this determination, we view the evidence in the light most favorable to the appellee. Fouse, supra; Langford, supra. The State urges this court to use a de novo standard of review, arguing that the trial judge applied the incorrect law when ruling that the search warrant was defective in its description of the property. The State cites State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991), for the proposition that where the matter to be decided is principally one of law, the Court may conduct a de novo review. The State argues that because the court did not find that the defendant’s name alone on the search warrant for a rural piece of property was sufficient to identify the property, the court did not apply the law correctly, and this court must now review the case de novo. We decline the State’s invitation. The Blevins court noted and applied the general standard of review in suppression cases recited above.
The only issue on appeal is whether the warrant sufficiently described the property to be searched. The trial court, in suppressing the search, held that the warrant was defective “for failure to particularly describe the place to be searched and the things to be seized as required by ARCrP 13.2 (b) (iii).” Specifically, the court noted that the deviation by the officers in this case was so great that there was substantial risk of the wrong property being searched. The court also found that the violation was “willful” because the officers could have easily obtained the correct description and location of the property.
In this interlocutory appeal, the State argues that the search warrant in this case was sufficient under constitutional requirements and under the Arkansas Rules of Criminal Procedure. The State contends that merely naming the owner of rural property is sufficiently particular to describe the property to be searched, and any descriptive errors in the warrant do not make the warrant invalid. The State avers that the attack on the warrant by Howard was a technical attack, and that this court disfavors those. Furthermore, the State argues that even if the totality-of-circumstances standard of review was appropriate, suppression was unwarranted. The State notes the police had no doubt about which property was to be searched because two of the officers conducting the search had been to this property previously, these officers had personally met with the drug informant before the warrant was issued, and Howard admitted that the property was his. Overall, the State argues that despite the fact that there were other houses on the same road as Howard’s house and despite the fact that the warrant described Howard’s house color incorrectly, as well as incorrectly described an outbuilding’s location, the warrant was still valid because the possibility of misidentification was small.
Although not addressed by the parties, we are compelled to address the application of Ark. R. App. P. — Crim. 3 to the instant appeal. Under this rule of appellate procedure, when the State files an interlocutory appeal from the trial court’s grant of a defendant’s motion to suppress evidence under Rule 16.2, an initial inquiry of this court must be whether the appeal involves the correct and uniform administration of justice and of the criminal law. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995); State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997). Section (a) of the rule outlines the permissive grounds for State interlocutory appeals in criminal cases. We have many time stated that the State’s ability to appeal is not a matter of right but limited to those cases described under Rule 3. Bowden v. State, 326 Ark. 266, 931 S.W.2d 104 (1996); State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997).
As we stated in Stephenson, supra:
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).
Stephenson, 330 Ark. at 595. Therefore, where the resolution of the State’s attempted appeal turns on the facts of the case and would not require “interpretation of our criminal rules with widespread ramifications,” acceptance of the State’s appeal is not allowed under Rule 3. Gray, 330 Ark. at 368-B (supplemental opinion on denial of rehearing). An appeal that raises the issues of application, not interpretation, of a statutory provision does not involve the “correct and uniform administration” of justice or the criminal law. Jones, supra. The court in State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997), explained this by noting that
[w]here the trial court acts within its discretion after making an evidentiary decision based on the facts on hand or even a mixed question of law and fact, this court will not accept an appeal under Ark. R. Crim. P. 36.10 (now Ark. R. App. P. — Crim. 3(c).
Hart, 329 Ark. at 585-586 (citing Harris, 315 Ark. at 597; State v. Mazur, 312 Ark. 121, 123, 847 S.W.2d 715 (1993) (quoting State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992)).
We hold that in the instant case that the State has not demonstrated that the appeal of this matter involves the correct and uniform administration of the law and is, therefore, dismissed.
Dismissed.
Glaze, J., dissents.
Rule 3(a) states in pertinent part:
(a) An interlocutory appeal on behalf of the state may be taken only from a pretrial order in a felony prosecution which (1) grants a motion under Ark. R. Crim. P 16.2 to suppress seized evidence, (2) suppresses a defendant’s confession, or (3) grants a motion under Ark. Code Ann. § 16-42-101 (c) to allow evidence of the victim’s prior sexual conduct. The prosecuting attorney shall file, within ten (10) days after the entering of the order, a notice of appeal together with a certificate that the appeal is not taken for the purposes of delay and that the order substantially prejudices the prosecution of the case. Further proceedings in the trial court shall be stayed pending determination of the appeal.
(c) When a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the trial record to be made and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal. (Emphasis added. | [
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PER CURIAM.
James Dunham, a state-salaried, part-time public defender for the Fifth Judicial District, was appointed by the trial court to represent appellant Roy Don Tester, an indigent defendant, in this criminal case. Following a jury trial that concluded on September 2, 1999, Tester was convicted of first-degree murder and capital murder and sentenced to two terms of life imprisonment in the Arkansas Department of Correction. A notice of appeal from the judgment of conviction was timely filed and the record has been lodged with our clerk.
Mr. Dunham now asks this court to relieve him as counsel for Tester and to appoint new counsel for Tester in this criminal appeal. In support of his motion to be relieved, Mr. Dunham asserts that he will not be compensated by the Arkansas Public Defender Commission for work performed in the appeal of this matter. Fie further asserts that he is ineligible for compensation by this court pursuant to our recent opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). Under these circumstances, we grant Mr. Dunham’s motion to be relieved for good cause shown. Mr. Mark M. Henry will be substituted as attorney for appellant Roy Don Tester in this matter. | [
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ROBERT L. Brown, Justice.
The appellant, Bruce Lee ticeappeals pro . from denial of his petition for postconviction relief under Ark. R. Crim. P. 37. He raises multiple issues in support of his petition for a new trial, but none of them has merit. We affirm the order of the trial court.
In 1996, Rowbottom was tried with standby counsel on one count of possession of methamphetamine with intent to deliver, one count of possession of marijuana with intent to deliver, one count of possession of drug paraphernalia, one count of felon-in-possession-of-a-firearm, and one count of simultaneous possession of a controlled substance and firearm. He was convicted on all counts and sentenced to a concurrent term of forty-five years in prison. We affirmed the convictions and the sentence. Rowbottom v. State, 327 Ark. 76, 938 S.W.2d 224 (1997). On April 2, 1997, Rowbottom filed the Rule 37 petition which is the subject of this appeal. On the same day, he moved for leave to file an amended and enlarged Rule 37 petition. The trial court denied his motion, and on December 4, 1997, the trial court entered its order denying the petition in toto without first conducting a hearing.
Rowbottom first contends in this appeal that the trial court erred in denying him leave to file an amended Rule 37 petition in excess of the ten page limit provided in Ark. R. Crim. P. 37.1(e). He further claims that without fifteen additional pages raising five new issues, as he requested, his constitutional rights were violated. We disagree. Our Rules of Criminal Procedure do allow for the amendment of Rule 37 petitions, but only with leave of the court. Ark. R. Crim. P. 37.2(e). And with regard to expanded page limits, this court has held that limiting Rule 37 petitions to ten pages in length is an entirely reasonable restriction on petitioners for postconviction relief and does not violate their due process rights. See Washington v. State, 308 Ark. 322, 823 S.W.2d 900 (1992). In the instant case, the trial court found that Rowbottom failed to set forth any legitimate ground or justification for filing the enlarged petition. Similarly, on appeal, he fails to present us with any cogent reason for why the trial court’s finding was clearly erroneous. We affirm the trial court on this point.
On a second procedural point, Rowbottom contends that he was entitled to a hearing before the trial court on his Rule 37 petition and that it was error for the trial court to deny him a hearing. Again, we disagree. Our rules provide on this point:
If the petition and files and record of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any part of the files, or records that are relied upon to sustain the court’s findings.
Ark. R. Crim. P. 37.3(a).
In reliance on this rule, this court has held that a court is not required to conduct an evidentiary hearing if it can conclusively determine from the record that the petitioner’s contentions are meritless. Stewart v. State, 295 Ark. 48, 746 S.W.2d 58 (1988); see also Brown v. State, 291 Ark. 143, 722 S.W.2d 845 (1987) (trial court must look at entire record when denying a petition without a hearing). Here, as will be shown subsequently in this opinion, virtually all of the points raised in the Rule 37 petition are barred from our consideration for failure to raise them before the trial court at the original trial. Hence, the trial court did not err in failing to conduct an evidentiary hearing.
There is one issue, however, that Rowbottom contends is a fundamental claim which he was not required to raise at the original trial in order to preserve it. That is his double-jeopardy claim. Rowbottom is correct on this point. In Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988), this court held that it was not appropriate to raise trial errors, including constitutional errors, for the first time in a Rule 37 proceeding. At the same time, we acknowledged in Finley that issues that are “so fundamental as to void the judgment absolutely,” will not be waived by failure to raise them at trial. 295 Ark. at 363, 748 S.W.2d at 647, citing Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987).
Two of our later cases touched on this issue. In Jeffers v. State, 301 Ark. 590, 591, 786 S.W.2d 114 (1990), this court explained:
A ground sufficient to void a judgment of conviction must be one so basic that it renders the judgment a complete nullity, for example, a judgment obtained in a court lacking jurisdiction to try the accused, or a conviction obtained in violation of an accused’s rights against double jeopardy. (Emphasis ours.)
Additionally, in Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996), the issue involved in the Rule 37 petition was denial of a trial by a jury of twelve members. In Collins, we noted that we had made an exception to our general rule that errors, including constitutional errors, must be raised before the trial court and on direct appeal. That exception is for errors that are so fundamental as to render the judgment of conviction void and subject to collateral attack. Citing Finley v. State, supra; Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980). We concluded that the right to a twelve-member jury was a fundamental right, the violation of which rendered the judgment void and subject to collateral attack.
It is true, as the State points out, that in Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996) (plurality opinion), we held that denial of counsel is an issue that must be raised on direct appeal to be preserved and not for the first time in a Rule 37 petition. Still and again, we have stated to the contrary regarding trial by jury and double jeopardy. We hold, therefore, that double-jeopardy protection is a fundamental right and that Rowbottom can raise his double-jeopardy claim for the first time in his Rule 37 petition.
We turn next to the question of whether his double-jeopardy rights have been violated. The apposite statute reads:
(a) When the same conduct of a defendant may establish the commission of more than one (1) offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense if:
(1) One offense is included in the other, as defined in subsection (b) of this section....
(b) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(1) It is established by proof of the same or less than all of the elements required to establish the commission of the offense charged....
Ark. Code Ann. § 5-1-110(a)(1) & (b)(1) (Repl. 1997).
The two statutes at issue in the instant case are Ark. Code Ann. § 5-64-401(a)(l)(i) (Supp. 1999) (possession with intent to deliver a controlled substance) and Ark. Code Ann. § 5-74-106 (Repl. 1997) (simultaneous possession of drugs and firearms). Section 5-64-101(a)(l)(i) reads:
(a) Except as authorized by subchapters 1-6 of this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance.
(1) Any person who violates this subsection with respect to:
(i) A controlled substance classified in Schedules I or II, which is a narcotic drug or methamphetamine, and by aggregate weight, including adulterants or diluents, is less than twenty-eight grams (28 g.), is guilty of a felony and shall be imprisoned for not less than ten (10) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding twenty-five thousand dollars ($25,000). For all purposes other than disposition, this offense is a Class Y felony.
Ark. Code Ann. § 5-64-401 (a)(l)(i) (Supp. 1999). Section 5-74-106 reads:
(a) No person shall unlawfully commit a felony violation of § 5-64-401 or unlawfully attempt, solicit, or conspire to commit a felony violation of § 5-64-401 while in possession of:
(1) A firearm....
Ark. Code Ann. § 5-74-106(a)(l).
At first blush, it would seem that trial and conviction for these two offenses violates §§ 5-l-110(a)(l) and (b)(1) because possession of a controlled substance with intent to sell is an included offense within simultaneous possession of a controlled substance and a firearm. In a case that is somewhat analogous to the case at hand, we held that a defendant/appellant could not be convicted of both felony murder with aggravated robbery as the underlying felony, and aggravated robbery separately, because such a double conviction violated § 5-l-110(a)(l). See Ballew v. State, 298 Ark. 175, 766 S.W.2d 14 (1989).
Our analysis, however, does not end with the Ballew case. Both the United States Supreme Court and this court have made it
clear that it is the legislature that determines crimes, fixes punishments, and has the authority to impose cumulative punishments for the same conduct. See Missouri v. Hunter, 459 U.S. 359 (1983); Albernaz v. United States, 450 U.S. 333 (1981); Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996). In Sherman, we said:
The United States Supreme Court has stated that legislatures are free under the Double Jeopardy Clause to define crimes and fix punishments, but that courts may not impose more than one punishment for the same offense. Brown v. Ohio, 432 U.S. 161 (1977). That Court has further stated that, “Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, ..., the question under the Double Jeopardy Clause whether punishments are multiple is essentially one of legislative intent.” Ohio v. Johnson, 467 U.S. 493, 499 (1984).
Sherman, 326 Ark. at 165, 931 S.W.2d at 424-425.
In Missouri v. Hunter, the Court reversed the Missouri Court of Appeals and held that Hunter’s double jeopardy rights had not been violated. At trial, Hunter had been convicted and sentenced for both armed criminal action and first-degree robbery. The Missouri Court of Appeals held that armed criminal action and first-degree robbery constituted the same offense under Blockburger v. United States, 284 U.S. 299 (1932). The Court reversed after concluding that there was no double jeopardy violation. In reaching this conclusion, the Court stated: “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Id. at 366.
The Court then held:
Our analysis and reasoning in Whalen [v. United States 445 U.S. 684 (1980),] and Albernaz lead inescapably to the conclusion that simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen is not a constitutional rule requiring courts to negate clearly expressed legislative intent. Thus far, we have utilized that rule only to limit a federal court’s power to impose convictions and punishments when the will of Congress is not clear. Here, the Missouri Legislature has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments.
Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.
Id. At 368-369.
In the case' before us, the issue is whether the General Assembly intended for the two offenses to be separate offenses where the same conduct violates two statutory provisions. See Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995). Proscription against simultaneous possession of drugs and firearms is found in the Arkansas Criminal Gang, Organization, or Enterprise Act. Act 1002 of 1993. In that Act, the General Assembly stated its reasons for enacting this section was to deter and punish ongoing organized criminal activity and “to provide for penalties that will punish and deter organized ongoing criminal activity.” Ark. Code Ann. § 5-74-102; see also McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). But in addition to that, what is most telling is that § 5-74-106 specifically refers to committing a violation of § 5-64-401, while possessing a firearm. The General Assembly has thereby made it clear in our judgment that it wishes to assess an additional penalty for simultaneously possessing controlled substances and a firearm. We hold that there was no double jeopardy violation.
The remaining issues raised by Rowbottom in his Rule 37 petition are:
• Denial of counsel at trial because he did not voluntarily and intelligently waive counsel.
• Failure to suspend trial proceedings for a mental evaluation.
• Ineffective assistance of counsel by standby counsel.
• Failure to charge under the criminal information and to instruct the jury on the essential elements of simultaneous possession of drugs and a firearm under § 5-74-106(a).
• Discovery violation by the prosecution for not disclosing its intention to introduce a vitamin and preservative.
• Erroneous rulings by trial court on admissibility of evidence.
• Improper closing argument by prosecutor.
• Improper use of prior conviction for impeachment.
• Improper use of prior conviction for enhancement of sentence.
All of these issues axe waived due to Rowbottom’s failure to raise them either at trial or on direct appeal. Mackey v. State, 286 Ark. 188, 690 S.W.2d 353 (1985). In the case of his contention that he received ineffective assistance of counsel, his abstract of the testimony, objections, and rulings fails to advise this court sufficiently of any deficiency. See Ark. Sup. Ct. R. 4-3 (b).
Affirmed.
CORBIN, J., not participating. | [
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ROBERT L. Brown, Justice.
The appellant, Charles A. stice. from a judgment of conviction for six counts of rape, following a resentencing in which he was sentenced to three life terms and three forty-year terms. The three life terms were fixed to run concurrently With each other, as were the three forty-year terms. The three forty-year terms, however, were to run consecutively to the life terms. Walls now appeals on grounds that the trial judge, Judge Lance Hanshaw, was biased at the resentencing hearing and should have recused or, alternatively, permitted him to withdraw his guilty and nolo contendere pleas. We hold that there was no abuse of discretion in Judge Hanshaw’s denial of the recusal motion or in his denial of Walls’s second motion to withdraw his guilty and nolo contendere pleas. We additionally conclude that based on the record before us, it appears that Judge Hanshaw has violated the Arkansas Code of Judicial Conduct. Accordingly, we direct the clerk of this court to forward a copy of this opinion to the Arkansas Judicial Discipline and Disability Commission for action.
This is the second appeal we have had on Walls’s sentencing. In Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999) (Walls I), which was handed down by this court on March 4, 1999, we held that Judge Hanshaw had abused his discretion when he allowed testimony about the Stocks murders to be introduced as part of victim-impact evidence and then stated at sentencing that he held Walls responsible for those murders when he set Walls’s sentence. We, accordingly, reversed the sentences and remanded the case to the trial judge for resentencing. It is the subsequent resentencing that is at issue in this appeal.
The chronology of events is important to our resolution of this matter. On January 22, 1998, Judge Hanshaw conducted a sentencing hearing following Walls’s plea of guilty to five counts of rape and a plea of nolo contendere to one count of rape. Walls had been a boy scout leader, and the rapes were perpetrated against boy scouts under his care. On February 4, 1998, Judge Hanshaw sentenced Walls to four life terms and two forty-year terms, with all sentences to run consecutively.
On the day of the sentencing, Judge Hanshaw made statements to reporters from two television stations. Channel 7, the ABC affiliate in Little Rock, reported that Judge Hanshaw stated he had sent to prison more than half a dozen young men who were victimized by Walls. That same day, according to Channel 11, the CBS affiliate in Little Rock, Judge Hanshaw met with the victims of the rapes and the victims’s families and gave them a book, The Wounded Heart: Hope for Adult Victims of Childhood Sexual Abuse.
The sentences meted out by Judge Hanshaw on February 4, 1998, were appealed to this court. On March 4, 1999, this court handed down Walls I in which we reversed the sentences and remanded the case for resentencing, as already discussed. On March 4, 1999, Judge Hanshaw told a reporter for Channel 4, the NBC affiliate in Little Rock, that he did not base Walls’s sentence on the Stocks murders and that the Stocks murders had nothing to do with the sentence. Also on that date, Judge Hanshaw told a Channel 11 reporter that the Walls sentences were within the parameters of the sentencing guidelines. A petition for rehearing was filed by the State, and it was denied by this court on April 15, 1999.
After we remanded this case to Judge Hanshaw, Walls filed several motions. On June 4, 1999, Walls moved forjudge Hanshaw to recuse because (1) he was tainted by the prejudicial evidence introduced at the first sentencing hearing, (2) he made public comments to the media exhibiting prejudice, and (3) he held an improper ex parte meeting with the victims and their families and gave them a book. Walls asserted that Judge Hanshaw had violated the Arkansas Code of Judicial Conduct and could not be fair at resentencing. He stated that any resentencing would be “politically motivated.”
Also on June 4, 1999, Walls moved to withdraw his pleas of guilty and nolo contendere under Ark. R. Crim. P. 26.1(a), on grounds that Judge Hanshaw was biased and that the resentencing would constitute a manifest injustice. On June 9, 1999, Judge Hanshaw declined to recuse and denied the motion for withdrawal of the guilty and nolo contendere pleas. Walls renewed the motions and asked for a hearing to present evidence, including videotapes depicting his public comments to the television stations and the ex parte meeting. That motion was denied on June 21, 1999. On June 22, 1999, Walls petitioned this court for a writ of prohibition to halt the resentencing on grounds that Judge Hanshaw was biased. We denied the petition without prejudice to raise the issue in a direct appeal.
On June 23, 1999, Judge Hanshaw conducted a resentencing hearing. Only two witnesses testified: Karen Knox, the mother of one victim, and Joy Cook, who worked for the prosecutor’s office and who testified about Judge Hanshaw’s meeting with the victims and their families on January 22, 1998, and the gift of the book, The Wounded Heart. Following the hearing, Judge Hanshaw sentenced Walls to three life terms and three forty-year terms. After his pronouncement of sentence, Judge Hanshaw permitted Walls to proffer into evidence the videotapes of the judge’s comments to television reporters.
Walls’s central issue on appeal is that Judge Hanshaw erred in failing to recuse from this case prior to the second sentencing hearing. Walls concentrates on the errors committed by the judge at the first sentencing hearing, where prejudicial testimony was permitted into evidence. He further emphasizes the public comments made by the judge to the news media as well as the ex parte meeting with the victims and their families and the gift of the book. Walls points to the Arkansas Code of Judicial Conduct and specifically to three canons:
Canon 1 — A judge shall uphold the integrity and independence of the judiciary.
Canon 2 — A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
Canon 3 — A judge shall perform the duties of the judicial office impartially and diligently.
Under the rubric of Canon 3, Walls urges that Judge Hanshaw violated (1) subsection B(7) by initiating ex parte communications with the victims and their families following the first sentencing on February 4, 1998, without the presence of defense counsel, and (2) subsection B(9) by publicly commenting on a pending proceeding on both February 4, 1998, and March 4, 1999, when the comments might reasonably be expected to affect the outcome of the proceeding or affect its fairness. We agree, as already stated, that based on what we have before us, there appear to be violations of the Judicial Code.
That leaves us with the question of whether a violation of the ethical rules set out in the Judicial Code manifests or equates to bias and, thus, ineligibility to preside over the Walls resentencing. We conclude that Judge Hanshaw’s apparent ethical lapses do not decide the bias issue. As an initial matter, this court has been resolute in holding that reversal and remand due to error by the trial judge do not automatically require recusal of the trial judge who erred. See, e.g., Wilson v. Neal, 341 Ark. 282, 16 S.W.3d 228 (2000). A judge has a duty to sit on a case unless there is a valid reason to disqualify. Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). In addition, this court does not presume bias on the part of a trial judge but rather presumes impartiality. Wilson v. Neal, supra; Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998); Skokos v. Skokos, 332 Ark. 520, 968 S.W.2d 26 (1998). The decision to recuse lies within the discretion of the judge, and to decide whether there has been an abuse of discretion, we review the record to see if prejudice or bias was exhibited. Black v. Van Steenwyk, supra; Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997); Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994).
We discern no bias on the part of Judge Hanshaw in his resentencing so as to warrant a third sentencing. We address the March 4, 1999, statements first. Judge Hanshaw’s comments that he was not influenced by the Stocks murders and that the terms fixed were within the sentencing guidelines, while inappropriate and ethically suspect under the Judicial Code, fall more into the category of disagreement with this court’s decision rather than bias. But in addition to that, we glean from the record no suggestion of prejudice on the part of Judge Hanshaw towards Walls after Walls I. On the contrary, at the resentencing hearing, Judge Hanshaw permitted counsel for Walls to proffer videotapes of the televised newscasts for the record, although the proffer was not timely and occurred after sentencing. He further reduced the sentence on one count from that handed down at the first sentencing hearing and ran some of the sentences concurrently. The new sentences were within the statutory limits.
We turn then to the statements made by Judge Hanshaw during the first Walls sentencing on February 4, 1998, and the public comments and ex parte meeting that same day. Canon 3E(1) does provide that a judge shall disqualify himself “in a proceeding in which the judge’s impartiality might reasonably be questioned....” However, we have held that recusal is a matter that is discretionary with the trial judge, and we will not reverse unless the trial judge abuses that discretion. Black v. Van Steenwyk, supra; Dolphin v. Wilson, supra; Reel v. State, supra. Plus, as already cited, we do not presume prejudice on the part of the trial judge. Wilson v. Neal, supra. On the contrary, we presume that the trial judge is impartial. Id. In the instant case, mere suspicion or conjecture that the judge’s heart and mind were so tainted by events that occurred more than a year earlier that he could not view the matter afresh on remand is not enough. We take as a given that a judge is able to preside over a matter on remand with a clean slate, absent proof or some indication to the contrary. The record in this matter simply does not support Walls’s contention that Judge Hanshaw was biased towards him at the resentencing. For all of these reasons, we hold that the trial judge did not abuse his discretion in declining to recuse in this matter.
There are two other issues raised by Walls for reversal. The first is that Judge Hanshaw’s failure to recuse for all the reasons already stated violated his due process rights. Walls, however, failed to obtain a ruling on this point from the trial judge and, thus, has waived the issue for purposes of appeal. Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997). Furthermore, Walls cites us to no authority in support of his constitutional argument. He simply makes the bald statement that his due process rights have been violated. That conclusory statement is not enough, and this court will not develop the constitutional issue for him. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998).
Walls finally contends that he should be able to withdraw his guilty and nolo contendere pleas due to bias on Judge Hanshaw’s part, because that equates to manifest injustice under Ark. R. Crim. P. 26(a)(1). Again, Walls presents this court with no convincing authority to support the contention that Judge Hanshaw abused his discretion in disallowing a withdrawal of his pleas. Ayers v. State, supra. And because we hold that there was no proof of bias so as to warrant recusal, Walls’s argument of manifest injustice is substantially undercut.
The record has been reviewed in his case for other reversible error pursuant to Ark. Sup. Ct. R. 4-3 (h), and none has been found.
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W.H. “Dub” ARNOLD, Chief Justice.
Louise Maxey appealed stice. Compensation Commission holding that she was not. permanently and totally disabled, but that she was entitled to benefits for a 35 percent wage-loss disability. The Second Injury Fund cross-appealed, arguing that the Commission erred in awarding appellant wage-loss benefits on a scheduled injury. Appellee Tyson Foods took the position that the Commission did not err in finding that appellant failed to prove permanent and total disability, but did not address the Second Injury Fund’s argument.
The Court of Appeals disagreed with appellant on her claim of disability degree and affirmed the Commission. Maxey v. Tyson, Inc., 66 Ark. App. 301, 991 S.W.2d 624 (1999). Further, the court agreed with cross-appellant, the Second Injury Fund, that since Ark. Code Ann. § 11-9-521 (g) (Supp. 1997) exempts the employer from paying any wage-loss disability for a scheduled injury in the absence of permanent total disability, it also exempts the Second Injury Fund. In other words, a claimant who is not entitled to wage-loss disability benefits from his employer or its insurance carrier cannot be entitled to benefits from the Second Injury Fund. Id.
Appellant/cross-appellee, Louise Maxey, then petitioned this Court for review of the decision of the Court of Appeals that reversed on cross-appeal the decision of the Full Commission that she was entitled to wage-loss disability on a scheduled injury pursuant to Ark. Code Ann. § 11-9-525 (Supp. 1997). Ms. Maxey contends that this petition involves an issue of first impression in this State. We granted appellee’s petition for review pursuant to Ark. Sup. Ct. R. l-2(e).
During oral argument of this matter, appellant asked this court to consider the Commission’s entire decision, including its finding that she was not permanently and totally disabled. This court has the discretion to review an appeal decided by the Court of Appeals on application by a party. Ark. Sup. Ct. R. l-2(e). Moreo ver, the factors we consider in determining whether to grant a petition to review neither control nor fully measure our discretion. See id.; see also Dugal Logging, Inc. v. Arkansas Pulpwood Co., 336 Ark. 55, 984 S.W.2d 410 (1999). Accordingly, although Ms. Maxey initially requested reversal only in regard to the issue of the liability of the Second Injury Fund, we will consider the case on petition for review in its entirety.
Standard of Review
We have held that upon a petition for review, we consider a case as though it had been originally filed in this court. Woodall v. Hunnicutt Construction, 340 Ark. 377, 12 S.W.3d 630 (2000); White v. Georgia-Pacific Corporation, 339 Ark. 474, 6 S.W.3d 98 (1999); Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). We view the evidence in a light most favorable to the Commission’s decision, and we uphold that decision if it is supported by substantial evidence. Id.; Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). 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. Pickett, 336 Ark. at 518, 988 S.W.2d at 5; ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).
Pacts and Procedural History
At the time of the hearing in 1997, Ms. Maxey was sixty-eight years old, had a tenth-grade education, no vocational training, and her past work experience consisted of working on a farm, in a flower shop, as a sales clerk in a clothing store, and for appellee Tyson Foods. Ms. Maxey testified that she began working for Tyson in 1984 and performed various jobs. She had been on the “debone line pulling chicken tenders,” a floor person cleaning up, assisting on the production line, and keeping load records. On January 27, 1989, Ms. Maxey sustained a compensable injury to her lumbar spine, underwent two surgeries, and was left with a 12 percent physical impairment to the body as a whole.
When Ms. Maxey was released to return to work after her back injury, she was restricted from bending and lifting, and she was placed on the “shell line.” She said a maintenance man made a stool especially for her so she could sit or stand as she needed. She also wore a back brace and took pain medication as needed. She said, in general, she did quite well that way.
In 1995, while still employed with Tyson, Ms. Maxey developed bilateral carpal tunnel syndrome, and she has had two surgeries on each wrist. After the most recent surgery on her right wrist, Ms. Maxey developed an infection that has never completely healed. When she was released to return to work on May 14, 1997, with a 15 percent impairment to her hands, Ms. Maxey was told by the plant manager that there was no job available within her restrictions, and she was terminated as of May 30, 1997.
Ms. Maxey testified that she then attempted to work as a WalMart “greeter,” but being on her feet all day and having to pull baskets for customers caused her severe pain and she had to quit. She testified that she can no longer squeeze anything, open a jar, peel a potato, push a vacuum, lift any cookware, or clean her house. Her hands stay sore and hurt constantly. The administrative law judge found Ms. Maxey to be permanently and totally disabled.
The Commission reversed, and reduced Ms. Maxey’s disability from total to 35 percent, based upon her compensable injuries together with her age, education, and work experience, along with all other matters which may be considered in assessing wage loss. It found that she had skills transferable to the “service sector” of employment where she had experience, and that there were numerous jobs where her restrictions of sitting or standing as needed could be accommodated. The Commission dismissed Ms. Maxey’s unsuccessful attempt to work at Wal-Mart as insufficient to prove a total inability to earn meaningful wages.
Merits of the Case
On appeal, Ms. Maxey argues that the Commission’s analysis was flawed and that reasonable minds could not reach the decision that the Commission reached. We agree and hold that the Commission’s decision to reduce Ms. Maxey’s disability from permanent and total to 35 percent was in error and must be reversed.
The claimant, Ms. Maxey, is now a seventy-year-old woman, who possesses only a tenth-grade education and no vocational training. Ms. Maxey’s doctor, Dr. E.F. Still, opined that “obviously she is not going to be able to do anything as far as repetitive work is concerned and [doubts] seriously if she is going to be able to do anything that has anything of substance such as heavy lifting, etc.” Although Ms. Maxey did attempt to return to work at Tyson, she was told that there was no work available within her restrictions. As stated previously, she thereafter attempted to work for Wal-Mart as a “greeter,” but was unable to remain on the job for any appreciable length of time due to the problems with her back and hands.
Ms. Maxey testified that currently her days consist of watching television, eating at her cousin’s café, and driving around town. She is unable to perform housework and relies on her daughter to do it for her. She further testified that she occasionally uses prescription pain medication three to four times per day and uses over-the-counter sleep-aids in order to ease the pain she suffers.
In short, when taking into consideration the claimant’s limited education, employment skills, and her relatively advanced age, coupled with the effects of no less than six surgeries (two to the back, and four to the hands), which she underwent in an attempt to return to work, in addition to the testimony of her doctor, we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission, finding that Ms. Maxey was anything less than permanently and totally disabled. For these reasons, we hereby reverse the Full Commission’s decision to reduce Ms. Maxey’s disability status from permanent and total to 35 percent. Likewise, the Court of Appeals decision in Maxey v. Tyson, Inc., 66 Ark. App. 301, 991 S.W.2d 624 (1999), affirming the Full Commission, is hereby reversed. As such, the cross-appeal by the Second Injury Fund is, therefore, moot and need not be addressed, particularly since the attorney for the Second Injury Fund conceded, during oral argument of this case, that the Second Injury Fund would be fiable in the event this court determined that Ms. Maxey was permanently and totally disabled.
Reversed. | [
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J. Fred Jones, Justice.
The appellants Dan W. Fortner and Sharon Lee Holcombe were convicted at a jury trial in the Pulaski County Circuit Court on information filed by the prosecuting attorney charging them with selling an obscene motion picture film in violation of Ark. Stat. Ann. § 41-2729 (Supp. 1973). The appellant Fortner was fined $2,000 and sentenced to three years in the penitentiary, and the appellant Holcombe was fined $2,000. The appellants rely on the following points for reversal:
“The court erred in refusing to grant defendants’ supplemental motion to dismiss.
The court erred in refusing to grant defendants ’ motion to dismiss.
The trial court erred in denying defendant Holcombe’s motion for directed verdict at the conclusion of the state’s case.
The closing argument of the attorney for the state was improper and so prejudiced defendant Holcombe that the conviction must be reversed.
The trial court erred in refusing to give certain jury instructions requested by defendants and in giving certain jury instructions over the objection of defendants.”
Ark. Stat. Ann. § 41-2729 (Supp. 1973) provides as follows:
“Hereafter it shall be unlawful for any person knowingly to exhibit, sell, offer to sell, give away, circulate, produce, distribute, attempt to distribute, or have in his or her possession any obscene film.”
Section 41-2729, supra, makes the enumerated acts un lawful but Ark. Stat. Ann. § 41-2731 (Supp. 1973) makes the selling of obscene films a felony and mere possession a misdemeanor. The appellants argue that the statute is unconstitutionally overbroad because it makes mere possession of an obscene film a criminal act. This same argument was thoroughly rejected in our recent decision in the case of Smith v. State, 258 Ark. 549, 528 S.W. 2d 360 (1975), and we find no merit to that contention here. For a more thorough discussion on this point see Levy v. Albright, 204 Ark. 657, 163 S.W. 2d 529 (1942), cited in Smith, supra.
In support of their assignment that the trial court erred in refusing to grant their motion to dismiss, the appellants recite three reasons, separately designated as “A,” “B” and “C.” They contend under “A” that § 41-2729, supra, as judicially construed, is vague and indefinite and thus violative of due process in that it does not provide fair notice of what is prohibited. They argue under “B” that wholly aside from the difficulties in determining what standards obtain in Arkansas, the “new Miller” test is exquisitely vague and lacking in the precision necessary in legislation touching upon First Amendment rights; and, they argue under “C” that the information charged only that the defendants, on a particular date, at a certain business location, did sell an obscene motion picture film, and that the information is constitutionally insufficient. The arguments under reasons “A” and “B” were advanced and rejected in Smith v. State, supra, and we find no merit in the appellants’ contention under “C.”
Ark. Stat. Ann. § 43-1006 (Repl. 1964) reads as follows:
“The language of the indictment must be certain as to the title of the prosecution, the name of the court in which the indictment is presented, and the name of the parties. It shall not be necessary to include statements of the act or acts constituting the offense, unless the offense cannot be charged without doing so. Nor shall it be necessary to allege that the act or acts constituting the offense were done wilfully, unlawfully, feloniously, maliciously, deliberately or with premeditation, but the name of the offense charged in the indictment shall carry with it all such allegations. The State, upon re quest of the defendant, shall file a bill of particulars, setting out the act or acts upon which it relies for conviction.”
The appellants do not deny that the information satisfies the statutory requirements but they contend that the information does not set forth facts which would enable the appellants to plead an acquittal or conviction in bar of future prosecution for the same offense. The appellants cite two cases, Hagner v. United States, 285 U.S. 427 (1932), and United States v. Debrow, 346 U.S. 374 (1953), in support of this argument. In both cases the United States Supreme Court upheld the validity of criminal indictments because they gave the defendants sufficient notice of their alleged crimes. Indeed, the test set forth in Hagner and quoted in Debrow indicates that it is the court record and not the indictment alone which forms the basis for a plea of former jeopardy. In these cases the court said:
“The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and ‘sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.’ Cochran v. United States, 157 U.S. 286; Rosen v. United States, 161 U.S. 29.”
We find no merit in the appellants’ second assignment.
We must agree that the trial court erred in denying defendant Holcombe’s motion for directed verdict at the conclusion of the state’s case. It is true that a verdict should be directed only when there is no factual issue to go to the jury. Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822 (1972). But as we view the record in the case at bar, there was no evidence from which the jury could have found, without resorting to surmise and conjecture, that the appellant Holcombe had knowledge that the film sold was an obscene film, as required for conviction under § 41-2729, supra. The appellant Holcombe correctly asserts that there was no direct evidence that she was even present during the conversation in which the appellant Fortner described the film to the investigating officer. There was testimony that she was the person who put the money from the sale into the cash register, and there was also testimony that the cash register was located on a counter which was in front of the film racks from which the obscene film was selected. The evidence indicates that Holcombe was employed as a clerk in the place, and it is easy to surmise that she knew what was going on and what was being sold from the film rack where she worked as cashier. Juries, however, are not permitted to indulge in surmise and conjecture in arriving at a guilty verdict in the trial of one accused of crime. A jury verdict of guilty must be based on competent evidence and there is no evidence in the record that Holcombe knew anything about the content of the film or how it compared with the “peep shows” in the back part of the place. Having concluded that the judgment must be reversed as to Holcombe, we do not reach the appellants’ fourth assignment since the argument complained of is not likely to occur at a new trial.
The appellants contend that the trial court erred in giving certain jury instructions requested by the state and in refusing certain instructions requested by the defendants. With the exception of the instruction on scienter contained in the state’s instruction No. 1 given by the court in the case at bar, the alleged errors pertaining to the instructions also arose in Smith v. State, supra, and were decided adversely to the appellants’ contention. The portion of the instruction objected to reads as follows:
“As used herein, ‘Knowingly’ means having general knowledge of, or reason to know, or a belief which warrants further inspection or inquiry of the character and content of a film which is reasonably susceptible of examination by the defendant.”
The felony statute under which the appellants were charged was Act 411 of 1967, Ark. Stat. Ann. §§ 41-2729 — 41-2731 (Supp. 1973). This Act did not define scienter. The above portion of the instruction vigorously objected to, was apparently lifted from Act 133 of 1969 entitled “AN ACT Prohibiting the Sale or Loan of Pornographic Literature to Minors ...,”a misdemeanor statute digested as Ark. Stat. Ann. §§ 41-2732 — 41-2734 (Supp. 1973), where scienter is defined under § 41-2732 (g) as follows:
“ ‘Knowingly’ means having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of [sic] both.”
We are of the opinion that the trial court went further than he should have gone in adding to the state’s instruction No. 1 the phrase: “or a belief which warrants further inspection or inquiry of the character and content of a film which is reasonably susceptible of examination by the defendant.” We do not pass upon the use of this language as part of an instruction in a case arising under §§ 41-2732 — 41-2734, supra, because that is not the situation in the case before us. Here the appellants were charged under the felony statute, § 41-2729, and we are of the opinion that to sustain a conviction thereunder, scienter requires more than a mere belief which warrants further inspection or inquiry. The appellants’ own requested instructions No. 1 and No. 16, which were given by the trial court, if not in conflict with the state’s instruction No. 1, certainly added no clarification to all the instructions. The appellants’ instruction No. 1 was given as follows:
“Three essential elements must be proved in order to establish the offense charged in the Information as violation of Arkansas Statutes 41-2729:
FIRST: That the motion picture charged in the Information is obscene, as I shall shortly explain the meaning of that term to you.
SECOND: That the Defendant exhibited, sold or offered to sell the motion picture charged as obscene in the Information.
THIRD: That the Defendant had knowledge of or reasonably should have known the nature, character, and content of the motion picture.
The burden is upon the Prosecution to prove beyond a reasonable doubt each of the essential elements of the crime; the law never imposes a duty upon any defendant in a criminal case the burden of calling any witnesses or producing any evidence.”
The appellants’ requested instruction No. 16 was given as follows:
“The mere fact alone that a defendant knew the contents of the motion picture film, if you should find such a fact, does not for that reason alone justify a conclusion that the said defendant knew that the character of the film herein was conceivably obscene in the Constitutional sense.”
The judgments as to both appellants are reversed and this case remanded for a new trial.
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RAY THORNTON, Justice.
Appellant Robert Paul Reynstice. first-degree murder and sentenced to life imprisonment for the shooting death of his neighbor, Michael Ramsey. Reynolds’s counsel filed a no-merit brief on appeal, and we affirmed the conviction and sentence in Reynolds v. State, No. CR 95-1343, slip op. (Ark., May 13, 1996)(per curiam). Reynolds subsequently filed a petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37, raising two claims of ineffective assistance of counsel. The Boone County Circuit Court denied relief. Reynolds now appeals from that order, and, because we agree that the failure to object to erroneous jury instructions amounted to a denial of the Sixth Amendment right to effective counsel, we reverse the trial court’s findings and remand the case for a new trial.
The sufficiency of the evidence was not challenged on direct appeal or in the postconviction proceedings; the testimony was uncontradicted that Reynolds fired five shots from a semi-automatic rifle at his victim as he drove past Reynolds’s house. At trial, Reynolds’s defense was insanity: that at the time of the killing, as a result of mental disease or defect, he lacked the capacity to conform his conduct to the requirements of law or to appreciate the criminality of his conduct. See Ark. Code Ann. § 5-2-312 (Repl. 1997). Reynolds was charged with the crimes of first-and second-degree murder as well as manslaughter, and the jury returned a verdict of guilty of murder in the first degree. The erroneous instruction given to the jury on the first-degree murder charge was:
Robert Reynolds is charged with the offense of murder in the first degree. To sustain this charge, the State must prove beyond a reasonable doubt that Robert Reynolds, with the purpose of causing the death of or serious physical injury to Michael Ramsey, did cause the death of Michael Ramsey.
A person acts with the purpose with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.
Serious physical injury means physical injury that created a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of any function of any bodily member or organ (emphasis supplied).
This instruction does not require proof of the elements of the crime of first-degree murder in order to convict a person of that crime.
The pertinent elements of first-degree murder are set out in Ark. Code Ann. § 5-10-102 (Repl. 1997) as follows:
(a) A person commits murder in the first degree if:
% ‡ ‡
(2) With a purpose of causing the death of another person, he causes the death of another person....
Id.
By contrast, the required pertinent elements of second-degree murder are set out in Ark. Code Ann. § 5-10-103 (Repl. 1997) as follows:
(a) A person commits murder in the second degree if:
í{c % ‡ :fc
(2) With the purpose of causing serious physical injury to another person, he causes the death of any person....
Id. (emphasis added). As given to the jury, this instruction would allow a conviction of first-degree murder to be rendered upon proof of only the elements required for a conviction of second-degree murder. Rather than allowing a choice between a conviction of first-degree murder or of the lesser offense of second-degree murder, the jury was instructed that it could convict Reynolds of first-degree murder upon a finding that the purpose required for second-degree murder had been proven. This erroneous instruction would allow Reynolds to be convicted of first-degree murder upon proof that his purpose was to cause “serious physical injury.” The fundamental issue presented to us in this appeal from the denial of a Rule 37 petition is whether counsel’s failure to object to the erroneous instruction, or to bring the issue forward on direct appeal, constituted a deficient performance that so prejudiced Reynolds that he was deprived of a fair trial.
Postconviction proceedings under Rule 37 provide a remedy against unjust imprisonment. The rule enables our courts to correct a manifest injustice. As we have stated, Rule 37 is a narrow remedy designed to prevent wrongful incarceration under a sentence so flawed as to be void. Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999). We will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.
The criteria for assessing the effectiveness of counsel were enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), which provides that when a convicted defendant complains of ineffective assistance of counsel he must show that counsel’s representation fell below an objective standard of reasonableness and that but for counsel’s errors the result of the trial would have been different. Id. We have adopted the rationale of Strickland and held that:
To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial.
Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).
Here, the trial court found, and the State does not contest, that an erroneous instruction of the law was given to the jury. The failure of Reynold’s counsel to object to the flawed instruction was a deficient performance of his duties as counsel. We then must ask whether the deficient performance prejudiced the defense. In Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996), we held that in cases involving a trial court’s giving of an erroneous instruction in cases involving the trial mechanism, “we will not require the appellant to demonstrate prejudice.” Id. In the case before us, it is apparent that counsel’s deficient performance in not objecting to the erroneous instruction prejudiced the defense, because the jury was given an erroneous instruction that Reynolds could be found guilty of first-degree murder based upon a finding of a purpose to cause serious physical injury, as required for the crime of second-degree murder.
The next question is whether these errors were so serious as to deprive Reynolds of a fair trial. In Thomas v. State, supra, we said:
In reviewing the denial of relief under Rule 37, this court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt in that 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 (citations omitted).
Id.
Here, the jury was given the elements of second-degree murder and instructed that it could find Reynolds guilty of first-degree murder based upon those elements. We have expressed the distinction between the analysis that takes place on direct appeal when an erroneous instruction is submitted to the jury, and the analysis that we apply to evaluate an ineffective assistance of counsel claim. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). On direct appeal from a case involving an erroneous instruction, the “harmless error” standard of review is appropriate, but in a postconviction challenge we must also consider whether, but for counsel’s error, there is a “reasonable probability” that the outcome of the trial would be different. See Thomas, supra.
In Hall, a case involving a postconviction challenge, we concluded that the defendant had failed to show that but for his counsel’s deficient performance, the jury would have reached a different decision. There we considered multiple instructions on charges including capital murder, second-degree murder, and other lesser charges. We cited with approval the language of the Eighth Circuit in United States v. West, 28 F.3d 748 (8th Cir. 1994):
This court’s precedent ... highlights the importance of reviewing an allegedly faulty jury instruction in context with the entire jury charge and the entire trial. See United States v. McMillan, 820 F.2d 251, 256 (8th Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 234, 98 L.Ed.2d 193 (1987). In McMillan, this court examined a criminal jury instruction that, if viewed in isolation, appeared to remove one element of the government’s burden of proof. Id. Nevertheless, this court determined that two other proper jury instructions and the context of the whole trial corrected any error in the isolated erroneous instruction, and thus the jury charge as a whole properly conveyed the government’s burden to the jury.
Id. We also observed that Hall, as well as the cases Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983) and Moore v. State, 252 Ark. 526, 479 S.W.2d 857 (1972), involved circumstances where “the erroneous instruction was obviously cured by other instructions.” Id.
Similarly, in Sasser, we pointed out the distinction between that case and the facts in Sullivan v. Louisiana, 508 U.S. 275 (1993), which dealt with a structural defect in the constitution of the trial mechanism, more particularly an erroneous instruction upon the State’s burden of proof. In Sullivan the Court determined that the harmless-error standard of review could not be applied because to do so would force the appellate court, inappropriately, to speculate about what a jury would have done, had it been properly instructed. Id. In Sasser, we distinguished Sullivan because, in Sasser, there were multiple instructions, and the error was not so serious as to deprive the appellant of a fair trial and a reliable finding of guilt. Id.
In the case before us, instructions as to what elements must be proven to support a conviction for first-degree murder were flawed, not by omission of a required element for such a conviction, but by the addition of a specific instruction allowing the conviction for first-degree murder to be rendered upon the proof of only that lesser intent required for second-degree murder. For us to decide that there might have been sufficient evidence to support a conviction of the greater crime would deprive Reynolds of his right to a trial by jury on the charge of first-degree murder. Due process requires that an “accused shall enjoy the right to a speedy and public trial, by an impartial jury.” U.S. Const, amend. 6. The United States Supreme Court, in United States v. Gaudin, 515 U.S. 506 (1995), stated that:
We have held that these provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.
Id. (citing Sullivan, supra). The Gaudin Court continued: “The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged....” Id.
In the case sub judice, the jury was not required to decide whether Reynolds caused the death of another based upon his intent to cause another’s death. We can only speculate how the jury would have resolved this question if it had been instructed to do so. However, we recognize that the jury might have based its conviction for first-degree murder upon findings of only the elements required for second-degree murder.
It is not necessary for us to decide, whether this error was such a fundamental structural error that it would be inappropriate to even conduct a harmless-error analysis. Here the flawed instruction was not corrected or rendered harmless by other instructions as in Hall, supra, or Sasser, supra. Unlike those cases, the error here is not the omission of an element of the crime but the addition of an instruction that specifically allows conviction upon a lesser showing of intent, thereby denying Reynolds the right to a jury trial on the elements upon which a conviction for first-degree murder must be predicated.
An accused has the right to a jury verdict beyond a reasonable doubt on the elements of the crime. See Gaudin, supra. In Sullivan, the Supreme Court wrote the following: “The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in the trial was surely unattributable to the error.” Id., (citing Rose v. Clark, 478 U.S. 570 (1986)) (emphasis added).
Because of the flawed instruction, the State was relieved of the responsibility to prove beyond a reasonable doubt every element of the crime of first-degree murder. As recognized by the Arkansas Court of Appeals in Beasley v. State, 29 Ark. App. 104, 777 S.W.2d 865 (1989), an erroneous modification of a model jury instruction “telling the jury that actual ownership was not necessary to convict appellant on the possession of firearm charge was prejudicial and warrants reversal....” Id. To the same effect see Justice Scalia’s concurring opinion in California v. Roy, 519 U.S. 2 (1996), where he states:
As we held in Sullivan v. Louisiana, [supra] a criminal defendant is constitutionally entitled to a jury verdict that he is guilty of the crime, and absent such a verdict the conviction must be reversed, “no matter how inescapable the findings to support that verdict might be.” A jury verdict that he is guilty of the crime means, of course, a verdict that he is guilty of each necessary element of the crime. Formally, at least, such a verdict did not exist here: The jury was never asked to determine that Roy had the “intent or purpose of committing, encouraging, or facilitating” his confederate’s crime.
The absence of a formal verdict on this point cannot be rendered harmless by the fact that, given the evidence, no reasonable jury would have found otherwise. To allow the error to be cured in that fashion would be to dispense with trial by jury.
Id. (citations omitted).
We hold that the trial court’s finding denying Reynolds postconviction relief based on ineffective assistance of counsel was clearly erroneous. Counsel’s failure to object to the erroneous instruction ahowing conviction for first-degree murder upon proof of only the elements required for a conviction of second-degree murder is sufficient to undermine confidence in the outcome of the trial, and establishes a reasonable probability that the outcome of the trial would have been different but for counsel’s deficient performance. The erroneous instruction was not an error of omission cured or corrected by other charges to the jury so as to properly convey the State’s burden to the jury. Accordingly, we set aside Reynolds’s conviction and sentence without addressing his remaining allegations of error, remanding this case for a new trial.
Reversed and remanded.
BROWN, J., not participating. | [
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John A. Fogleman, Justice.
Only one question is in volved on this appeal. That is whether the placing of a wall box containing electrical equipment on a pole located upon unplatted and unimproved property constitutes commencement of a building within the meaning of Ark. Stat. Ann. § 51-607 (Repl. 1971). The trial court found that the electrical materials purchased on February 5, 1973 were for the purpose of establishing a power unit on a pole adjacent to the site of a home to be constructed on the premises and, since the installation of the pole and a power unit occurred prior to the recording of a mortgage, the installation constituted the commencement of the building as a matter of law. We disagree and reverse the judgment.
We have previously considered the meaning of the words “commencement of [the] buildings or improvements” in Ark. Stat. Ann. § 51-607, the section of the statute relating to establishment of priorities of mechanics’ and materialmen’s liens. In order to constitute “commencement” sufficient to establish lien priority the work done must be such as to make it obvious that improvements on the property are being commenced or are underway. It means some visible or manifest action on the premises to be improved making it apparent that the building is going up or other improvement covered by the statute is to be made. Clark v. General Electric Company, 243 Ark. 399, 420 S.W. 2d 830. Mark’s Sheet Metal Inc. v. Republic Mortgage Co., 242 Ark. 475, 414 S.W. 2d 106. Removing the foundations of old buildings on the premises, commencment of leveling operations and the establishment of cut and fill elevations are not sufficient evidence of commencement. Clark v. General Electric Company, supra. An inspection and measurement of the premises and the placing of a wooden peg to determine the location of a proposed house on the premises are not sufficient. Marks Sheet Metal, Inc. v. Republic mortgage Company, supra.
The question of priorities in these cases is rendered more difficult because of the strong equities favoring both parties. These equities are conflicting and competing. In considering them, it is imperative that we remember that basically the evidence of titles to, and liens upon, real estate is required to be a matter of record. The mechanics’ and materialmen’s lien statute provides a notable and appropriate exception. But in order that the exception prevail, it is essential that the mechanic or materialman bring himself within the terms of the statute. We have not yet gone so far as to hold that, in order to establish priority, there must be actual excavation for a basement or foundation or that the labor or materials involved must be such as could afterward become a component part of the structure, as many jurisdictions have. Clark v. General Electric Company, supra. But it has been held that the driving of stakes to indicate the line of foundations and the digging or scraping away dirt to bring one corner down to the proper level would not constitute commencement of a building. Kelly & Martin v. Rosenstock & Stein, 45 Md. 389 (1876). It had been previously held in the same jurisdiction that driving pegs in the ground, and laying it off for buildings could not be regarded as a commencement of the building within either the letter or spirit of the law. Brooks v. Lester, 36 Md. 65 (1872). Staking out the foundation line was held insufficient in Conrad & Ewinger v. Sturn, 50 Iowa 470 (1879). The placing of lumber on the premises and the building of a fence enclosing the premises were not sufficient to justify the court in giving priority to the furnisher of the materials over a recorded mortgage. Middletown Savings Bank v. Fellowes, 42 Conn. 36 (1875).
It is clear that work simply preparatory to future building operations does not constitute the “commencement of [a] building”. The installation of the power pole and wall box was only a preparatory step and did not constitute the commencement of a building, under our statute, which would give priority to the materialman over a subsequently recorded construction money mortgage.
The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
Byrd and Holt, JJ., dissent.
Jones, J., not participating. | [
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Conley Byrd, Justice.
Appellant Roger Hill was convicted of selling a controlled substance (marijuana) and given a ten year sentence. For reversal he makes the following contentions:
“I. The trial judge improperly permitted a witness subpoenaed by the defense to assert the privilege against self-incrimination.
II. It was prejudicial error to allow the prosecuting attorney to repeatedly describe the appellant as a drug pusher in his closing argument when there was no reference to such term in the evidence and no reason for it to be inferred therefrom.”
The record shows that Larry Jackson, an undercover agent, went by appellant’s house to see his roommate. While talking to appellant in front of his apartment some young boys came by and asked appellant if he had a “lid”. Appellant told them “yes” and went into his apartment with the boys. When the boys left, appellant made inquiry as to why Jackson wished to see the roommate. When Jackson explained that he desired to purchase some marijuana, appellant invited him into the apartment. Inside the apartment appellant got an athletic traveling bag containing 25 to 30 lids of marijuana. Jackson purchased two lids for $30.00. Inside the apartment was a Negro male that introduced himself as Dewight. Dewight told Jackson that he had bought a “lid” from appellant.
At the trial appellant called as a witness Lisa Roddy. After ascertaining that Lisa Roddy knew Larry Jackson, appellant asked her, “Has Mr. Jackson, in your presence, in your view, ever attempted to smoke a marijuana cigarette or anything you think or know contain marijuana?” To this and other questions of like nature, the witness pleaded the Fifth Amendment. The record shows that Lisa Roddy was under indictment at the time on drug charges.
POINT I. We find no merit in appellant’s contention that the witness was improperly permitted to plead the Fifth Amendment. It was pointed out in Emspak v. United States, 349 U.S. 190, 75 S. Ct. 687, 99 L. Ed. 997 (1955), that to “sustain the privilege ... it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question, or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”
POINT II. Under the record presented it appears that appellant was fairly active in the sale of marijuana and consequently we cannot say the State’s characterization of appellant as a “drug pusher” was not fair comment on the evidence.
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Lyle Brown, Justice.
Appellants here, who were defendants below, are the estate of Olen Spann, deceased; Creed Spann, Executor of the Estate of Olen Spann, deceased; Wendle Adcox, John L. Vassaur, and Joe Hickerson. The latter three are tenants of the Spann estate. The appellee here and plaintiff below is W. H. Kennedy & Son, Inc., cotton-brokers. The interpleader is Federal Compress & Warehouse Company.
The principal issue before the chancellor was whether a written contract between a cotton farmer (Olen Spann) and a cotton merchant (Kennedy) is of a personal nature so as to be terminated by death of one of the parties (Spann). The chancellor held that death did not terminate the contract and ordered the interpleader to deliver the cotton to Kennedy & Son, Inc.
Appellants here contend (1) that the court erred in finding the contract between the late Olen Spann and W. H. Kennedy & Son required Olen Spann estate to plant any cotton, and (2) erred in finding that the contract was enforceable against the tenants of the estate of Olen Spann.
The facts are largely undisputed. During his lifetime Olen Spann entered into a contract dated January 30, 1973, for the sale by Spann and the purchase by Kennedy of “all and only those bales of cotton produced and ginned from approximately 375 acres located on the farm owned by Spann”. The contract was styled “PURCHASE AGREEMENT 1973-74”. Spann died on April 20, 1973 before any cotton had been planted and his son, Creed Spann, Executor, was appointed personal representative of the estate. In due time the executor entered into a lease agreement with Adcox and Vassaur, and they, in turn, sublet a portion of the Spann lands to Joe Hickerson. The cotton was actually produced far in excess of 375 acres referred to in the contract and is now in the possession of Federal Compress & Warehouse Company, the interpleaders here.
We come now to the principal question, that is, whether the executor and his tenants are legally obligated to perform under the contract and deliver the cotton in the warehouse for the use and benefit of appellee, Kennedy & Son, Inc. It should be here stated that the executor was aware of the contract before planting time, and the lessees and their subtenant were aware of the contract before they accepted the agreement to plant and harvest the crop for the executor.
Our attention is first directed to Ark. Stat. Ann. § 62-2410 (Repl. 1971): “Unless a testator shall otherwise direct by his last will and testament, a personal representative shall have authority to continue any business in which his decedent may have been engaged at the time of his death, for a period not exceeding one month following the date of the granting of his letters, without obtaining an order of the court; and if such business be that of conducting farming operations he may so continue the same for a period of three months or until the end of the calendar year in which the death of the decedent occurred, whichever shall be longer.” The foregoing statute indicates that the probate law favors the completion of a work contract in force on the death of the testator.
In the field of the subject matter before us we find this statement in 3 Williston on Contracts, §411: “In the absence of express agreement to the contrary there will be no such requirement [of personal performance] if the' duty is of such character that performance by an agent will be substantially the same thing as performance by the obligor himself. The performance in such a case is indeed in legal contemplation rendered by the original obligor, who is still the party liable if the performance is in any respect incorrect.”
Applying the above stated general principle to the facts of this case, we cannot escape the conclusion that the contract between Spann and Kennedy is binding upon Spann’s personal representative. First, the evidence reflects that the cotton lands in Jefferson County, particularly in the area of the Spann lands, are some of the best in the mid-south. This creates a situation where there is a demand for good cotton acreage. Second, even though the testimony indicates that confidence is an important factor in the cotton-producer and cotton-merchant relationship, and that Kennedy had this confidence in Spann, the testimony also reflects that there are many other cotton producers living or having interests in the general vicinity of the Spann lands that are competent and reliable growers, including the two tenants of the Spann estate for 1973. J. W. Kennedy, President of W. H. Kennedy &. Son, Inc., testified that he had individual contracts with both defendants, Vassaur and Adcox whereby they agreed to sell and he agreed to buy their cotton for the 1973 crop year. The evidence is rather conclusive that, even though the personal representative was not a skilled cotton farmer, he had no difficulty in securing capable and reliable tenants to farm the land and fully and completely comply with the contract his father had made. There is certainly no question raised by the parties to this litigation that the tenants were not thoroughly competent. In fact, they produced more cotton than was called for in the contract with Kennedy.
Of course it is true that the identity of the producer is important to the cotton buyer at the time he enters into the contract to purchase cotton. It is without doubt important, just as it is important to know with whom one is dealing whenever any contract is entered into. It is important that the farm has good land which will produce the quality of cotton contemplated; to know that he has the equipment, or can get it, to produce the crop; that he is responsible financially and can secure adequate financing; and basically all the considerations that are relevant to any contract. But these considerations do not make it a “personal service” contract. For example, those same considerations were present in the following situations where the contracts were enforced against the estate of the deceased contracting party:
National Surety Company v. George E. Greece Lumber Company, 60 F. 2d 847 (CCA 10th, 1932) (Contract to carry on logging operation); Burch v. Bush & Co., 181 N.C. 125, 106 S.E. 489 (1921) (Contract to cut timber and manufacture it into lumber according to specifications); Cates v. Cates, 268 Ala. 6, 104 So. 2d 756 (1958) (Contract to haul milk); In Re Burke’s Estate, 198 Cal. 163, 244 P. 340 (1926); MacKay v. Clark, 5 Cal. App. 2d 44, 42 P. 2d 341 (1935) (Building contracts); Whidden v. Sunny South Packing Co., 162 So. 503 (Fla. 1935) (Planting, cultivating and harvesting citrus fruit); Calif. Packing Corp. v. Lopez, 279 P. 664 (Cal. 1929) (Asparagus cropping contract).
Further factual evidence that the contract in question was not a contract which could be performed only by Olen Spann, is the fact that the appellee, W. H. Kennedy & Son, Inc., entered into the same type contract with literally hundreds of cotton farmers in the cotton producing areas in Arkansas and Louisiana. The proof is that Kennedy purchased on forward cotton contracts approximately 92,000 acres of cotton production which would represent several hundred contracts. John Tharp, cotton merchant, with Harlow Sanders & Co., Inc., cotton merchant of Pine Bluff, testified that his firm negotiated in the neighborhood of 500 contracts of this type in 1973. Charles E. Hart, president of Hart Cotton Company, Inc., a cotton merchant of Pine Bluff, estimated that his firm was involved in some 700 contracts for the 1973 crop year. It is safe to say, therefore, that cotton merchants in Pine Bluff alone entered into literally thousands of contracts of the very same type as the Kennedy contract for the 1973 cotton crop.
Appellant next argues that if there was a contract between the Spann estate and Kennedy, it does not reach the tenants of the estate on the lands of Olen Spann. In other words it is argued that the tenants áre in no manner bound to make delivery of the cotton. The tenants Adcox, Vassaur and Hickerson, testified, and were corroborated by Creed Spann, that all of them were aware of the Spann-Kennedy contract when they leased the land. The court made specific findings in regard thereto and they are fully supported by the testimony of the named witnesses. The sum and substance of the testimony was that the tenants considered themselves bound by the contract if the estate was bound. Here is what the court said: “In other words, defendants, Adcox, Vassaur and Hickerson, entered into a lease contract with the personal representative with full knowledge of the Spann-Kennedy contract and they agreed to deliver the cotton from the lands to Kennedy if it should be determined that the Spann-Kennedy contract was valid.”
Finally, appellant makes this argument: “The second consideration upon which the court might have concluded that the estate of Olen Spann was obligated for cotton grown by its lessees on the estate lands would have to do with the theory of title to the goods contracted for. To some degree, the Uniform Commercial Code bears on this issue.”
Appellants cite Ark. Stat. Ann. § 85-2-105, 106, and 107 and conclude from those sections of the UCC “it is apparent that ‘growing crops’ are goods within the meaning of the Code and are susceptible to contracts for sale”.
Also, crops which have not been planted may be included in the definition of “future goods”. Ark. Stat. Ann. § 85-2-105 (2) [Add. 1961]; 85-2-501 [Add. 1961]; 2 Anderson, Uniform Commercial Code (2d ed.) 63, Sales, § 2-501:9, 501:10. The only effect in this case, however, would be that the contract, instead of constituting a present sale, would operate as a contract to sell at a future time. Ark. Stat. Ann. § 85-2-105 (2), 106. When a decedent has entered into a contract for sale of personal property which has not been performed, his executor may be compelled to execute a bill of sale pursuant to the terms of the contract. Contractual obligations which survive the death of the obligor are binding on his executor in his representative capacity and enforceable against the estate, and it is the duty of the executor to carry out such contracts and compliance may be enforced unless they are personal in nature and personal performance by the decedent is of the essence of the contract. 31 AM JUR 2d § 158, Executors and Administrators, § 318; 33 CJS 1168, Executors and Administrators § 189.
Even if the UCC provisions are applied, the issue remains the same, i.e., whether there was a contractual obligation enforceable against his estate. We have said there was.
Affirmed.
Harris, C.J., not participating.
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Conley Byrd, Justice.
At issue here is the validity of Acts 1953, No. 559 [Ark. Stat. Ann. §§ 67-1401 et seq (Repl. 1966)]. That Act makes it unlawful for any nonresident person, partnership or corporation to “engage in the business of lending money in the State of Arkansas by means of advertising over the radio, through the mails or by any other means of advertising” unless the nonresident posts a bond in the amount of $5,000, designates an agent for service and files a notice with the State Bank Department of an intention to engage in the business of lending money. Section 5 provides that any loan made either under the act or contrary thereto “shall be held to be an Arkansas Contract” and Section 6 makes null and void any contract made contrary to the Act.
The facts giving rise to this litigation were stipulated. Appellee, Nancy Murchison, a resident of Arkansas, went across the state line to appellant’s office in Arkoma, Oklahoma, and borrowed a stipulated sum of money. Since that time she has made no payments thereon and is in default. The loan arrangement is valid under the laws of Oklahoma. Appellant, Pioneer Finance Company, is an Oklahoma Corporation engaged in the business of lending money and as such does considerable advertising in the Fort Smith, Arkansas newspapers, Southwestern Bell Telephone Directory, etc.
The trial court held the Oklahoma loan contract void under Acts 1953, No. 559, and rendered judgment for appellee. Hence this appeal.
As can be seen from the foregoing recitations, the Act here in question imposes burdens upon nonresident lenders that are not applied to resident lenders.
Appellee recognizes that the transaction here involved is controlled by the commerce clause of the United States Constitution but relies upon Head v. New Mexico Board, 374 U.S. 424, 83 S. Ct. 1759, 10 L. Ed. 2d 983 (1963), as making this a permissible police regulation relating to the health, life and safety of the citizens of the State of Arkansas. In this connection appellee points to the annotation of the Head case appearing at 10 L. Ed. 2d 1388 as follows:
“Although it was suggested in some early commerce clause cases that any burden imposed upon interstate commerce by a state or municipality was unconstitutional, or that any “direct” or “substantial” burden on interstate commerce was unconstitutional, the currently accepted view is that a state or municipality, in regulating advertising, may constitutionally impose a burden on interstate commerce if there is (1) a sufficient local interest in the matter regulated, and a reasonable exercise of the ‘police power,’ (2) no discrimination against interstate commerce, and (3) no disruption of required uniformity as to regulation of interstate commerce.
Thus, in upholding advertising regulations the courts have often emphasized that (1) there was a substantial local interest in the matter regulated, and the ‘police power’ to regulate such matters as those affecting health, safety, and morals was reasonably exercised; (2) there was no discrimination against nonresidents or against interstate commerce; and (3) there was no disruption of required uniformity. On the other hand, where advertising regulations have been considered unconstitutional as applied to interstate commerce, it has been insufficient local interest in the matter regulated, or that there was interference with an area of interstate commerce which, if regulated at all, required uniformity of regulation.”
Appellee to get around the nondiscrimination requirement then argues:
“Applying the second part of the test to the instant case, there is no discrimination against interstate commerce because in effect this statute is simply making it impossible for a foreign lender who solicits loans from Arkansas residents by advertising to lend money at a higher interest rate than 10% and still enforce its contracts, just as Arkansas lenders are prohibited from doing. Whether a state unconstitutionally discriminates against commerce is to be determined, not by the ostensible reach of its language, but by its practical operation.”
In this argument appellee erroneously assumes that the prohibition set forth in Acts 1953, No. 559, is limited to contracts in excess of 10% interest per annum. As we read the Act it would void a non interest bearing contract.
Having demonstrated that the Act discriminates against interstate commerce, it follows that we must hold that it is invalid. Consequently, we need not reach the other arguments made with respect to the invalidity of the Act.
Reversed and remanded with direction to enter judgment according to the stipulated facts.
John A. Fogleman, Justice, concurring. I concur in the result. The first issue raised on this appeal questioned the applicability of Act 559 of 1953 [Ark. Stat. Ann. § 67-1401 - 1406 (Repl. 1966)]. The appellant does not have a place of business in Arkansas. It makes loans to Arkansas residents who come to apply for them at its offices in Arkoma and Sallisaw, Oklahoma. Appellee came to appellant’s place of business on September 24, 1973, and borrowed a sum of money and executed a promissory note and a security agreement. Act 559 makes it unlawful for a nonresident person, partnership, firm or corporation to engage in the business of lending money in the State of Arkansas by means of advertising without complying with the act. Ark. Stat. Ann. § 67-1401. It also provides that any such person, partnership, firm or corporation engaged in the business of lending money in the State of Arkansas by means of advertising shall be considered doing business in this state. Ark. Stat. Ann. § 67-1402. The engaging in the business of lending or attempting to lend money in the State of Arkansas without complying with the act is a misdemeanor. Ark. Stat. Ann. § 67-1404. It makes null and void any contract made contrary to the provisions of the act. Ark. Stat. Ann. § 67-1406. The loan was not made in Arkansas. The act is clearly not applicable in this case.
This being the case, there is no reason or justification for treatment of the constitutional issue. For more than 75 years this court had said that it would not and should not consider constitutional questions unless the answers were so necessary to a decision in the case that it could not otherwise be decid ed. We said so as late as 1972 in Board of Equalization v. Evelyn Hills Shopping Center, 251 Ark. 1055, 476 S.W.2d 211. The court discovered an exception theretofore non-existent in Arkansas in Wood v. Goodson, 253 Ark. 196, 485 S.W. 2d 213. That exception “is where the settlement of the controversy involves a matter of public importance.” I don’t know what this means, and I doubt that my brethren do. It seems to me that it will lead to ad hoc, case by case, decisions as to whether a question is of sufficient “public importance” to justify the court in exercising its power to construe the constitutions of Arkansas and the United States. It will inevitably produce whimsical and inconsistent determinations dependent upon current personnel of the court and its collective mood of the moment - something the judiciary should abhor as an impediment to the successful operation of a constitutional, tripartite government, and the rule of law.
Judicial restraint should be greatest when the judicial department is called upon, as it is here, to strike down a statute adopted by the legislative department, the primary policy making branch in our system of government and the repository of all powers of government not reserved to the people or assigned to another government or department of government.
I can only reiterate the protest I have registered in such cases as Grimmett v. State, 251 Ark. 270-A, 476 S.W. 2d 217; Wood v. Goodson, supra; GAC Trans-World Acceptance Corp. v. Jaynes Enterprises, Inc., 255 Ark. 752, 502 S.W. 2d 651.
In Wood v. Goodson, supra, we were called upon to strike down a judicial act, not a legislative one, as we are here. I submit that the public importance of the decision here is far less than was the case in Board of Equalization v. Evelyn Hills Shopping Center, supra, and in many other cases where this court has properly avoided the opportunity to exercise its powers to decide constitutional questions, particularly where doing so results in striking down a solemn enactment of a coordinate, coequal department of government.
If the loan had been made in Arkansas we would not have been presented with the constitutional question in this case. The loan would have been challenged as usurious. At least, we would have the matter before us in a different factual context. | [
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George Rose Smith, Justice.
This is a dispute between a general contractor and one of its subcontractors. In 1973 the principal appellant, Professional Builders & Realty Company, a corporation owned by Leonard Coyle, was the general contractor engaged in the construction of the Royal Manor Apartments, in Jefferson county. Coyle orally subcontracted the foundation and carpentry work to the appellee, B.J. Powell, for the total sum of $112,000.
Under the agreement Powell was entitled to request part payments or “draws” as the work progressed. Powell’s first three draws, totaling $52,148, were duly paid. Coyle, however, refused to honor the fourth request, taking the position that the amount sought was excessive and that Powell was not properly performing his contract. Powell then quit the project and brought this suit for $21,712.59 as the balance due for his past performance. After an extended trial the chancellor found that Coyle was at fault in failing to honor the fourth request or at least in failing to enter into negotiations about the amount due. This appeal is from a decree awarding Powell a judgment and lien for $16,290.22 as the amount still due for his part performance of the subcontract.
For reversal Coyle first contends, in substance, that Powell was himself in default when he quit the job, because the delays and other conditions about which he complained were the result of his own defective performance of his subcontract. Neither side questions the controlling rule of law, that a subcontractor’s right to abandon his contract for nonpayment of a requested installment depends upon which party was actually in default at the time. Tech-Neeks v. Francis, 241 Ark. 390, 407 S.W. 2d 938 (1966).
The weight of the evidence supports the chancellor’s conclusion that here it was the principal contractor who was at fault when Powell abandoned the work. Powell testified that other subcontractors failed to do their jobs properly and on schedule, resulting in costly delays in Powell’s performance of his own subcontract. Coyle testified that under the Coyle-Powell oral contract it was Powell’s responsibility to supervise the project as a whole and to require all subcontractors to stay current in their work. Powell denied having assumed that responsibility.
Powell’s version of the parties’ understanding is the more reasonable of the two. It was unquestionably Coyle’s duty to employ all the subcontractors; Powell had no authority in that respect. Even though Coyle insisted that Powell was to supervise the other subcontractors, Coyle readily admitted that Powell had no real power to discharge that responsibility. This excerpt is from Coyle’s testimony:
Q. He [Powell] had no supervision over them, as far as being able to tell them, “Now, I want you out here on this job at 8:00 Monday morning”?
A. Now, that would be part of it, as far as supervision and having them there on time or at the time he wants them.
Q. It would be part of his job to alert them that he needs them there at a certain time?
A. Yes, sir.
Q. But as far as having any authority to order them there or face the consequences, he would not have any sanction he could apply against them if they didn’t cooperate?
A. No, sir.
Q. He would be just another subcontractor?
A. Right.
* * * *
Q. Now, if there had been difficulty, Mr. Powell would have contacted you, and you would have dealt with the subcontractor?
A. Yes, sir.
Viewing the record as a whole we agree with the chancellor’s belief that the overall progress of the work was the general contractor’s responsibility. It follows that Powell was not in default by abandoning his contract owing to adverse conditions over which he had no control.
The appellants’ remaining contentions relate to the chancellor’s method of computing Powell’s damages. Those damages were necessarily hard to prove with precision, because Powell complained of many delays that occurred over a period of several months. The chancellor adopted, we think properly, the view expressed in Story Parchment Co. v. Paterson Parchment Paper Co.. 282 U.S. 555 (1931):
It is true that there was uncertainty as to the extent of the damage, but there was none as to the fact of damage; and there is a clear distinction between the measure of proof necessary to establish the fact that petitioner had sustained some damage, and the measure of proof necessary to enable the jury to fix the amount. The rule which precludes the recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount.
What the chancellor did in this case was to base his computation of damages upon the four requested draws made by Powell in the course of the work. The first three requests were paid by Coyle without question, but we do not agree with the appellants’ argument that the chancellor treated that fact as establishing an estoppel against the appellants. Instead, we think the chancellor took the requests to be the best proof of Powell’s damages. The requests were made contemporaneously as the work progressed, when firsthand information was available. Powell testified that in preparing the re quests he inspected the job site and used percentage figures that he had discussed with Coyle. Coyle’s ready payment of the first three draws certainly suggests that their amount was not decidedly out of line with the progress of the work. Moreover, the testimony of the witness Ferguson, who made inspections for the agency, that was financing the project, tends to support Powell’s figures. Finally, the chancellor reduced the amount of the fourth requested draw from i -,- 900 to $8,000, apparently giving some weight to Coyle’s general statements that he thought Powell had been overpaid on some of the draws.
In this situation, where a builder or subcontractor has been prevented by the owner or general contractor from completing the work, the courts have recognized two alternative measures of damages. The plaintiff may elect to rely upon the contract and claim the full amount of the agreed price, less what it would have cost him to complete the construction. Or the plaintiff may seek a recovery on a quantum meruit basis, his damages then being the reasonable value of his performance. Corbin, Contracts, § 1094 (1964); Williston, Contracts, § 1454 (3d ed., 1970); Restatement, Contract, § 346(2) (1932); Petropoulos v. Lubienski, 220 Md. 293, 152 A. 2d 801 (1959).
Here the chancellor, as we interpret his detailed opinion, adopted the quantum meruit approach and sought to determine the reasonable value of Powell’s contribution to the project, above what he had been paid. After studying the record we cannot say that the chancellor’s determination of damages is clearly against the preponderance of the evidence. To the contrary, his award appears to effect substantial justice. We note the appellants’ suggestion that the cause be remanded with instructions for a new trial, but in chancery cases it is our usual practice to render final judgment upon the proof that the parties have seen fit to introduce. Wilborn v. Elston, 209 Ark. 670, 191 S.W. 2d 961 (1946). We find no reason to depart from that practice in this case.
Affirmed. | [
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PER Curiam.
Appellant Arley David Mathis, by and through am. attorney, has filed a motion for rule on clerk. His attorney, Robert Scott Parks, states in the motion that the order extending time for filing the record was entered 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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RAY THORNTON, Justice.
This case is before us on petition stice. Arkansas Court of Appeals, pursuant to Ark. Sup. Ct. R. l-2(e). In Jones v. Abraham, 67 Ark. App. 304, 999 S.W.2d 698 (1999) (hereinafter “Jones IF), the court of appeals affirmed the trial court’s dismissal of appellants’ suit to enforce an oral contract to make a will. Appellants then petitioned this court for review, contending that the chancellor erred in holding appellants to a heightened standard of proof to survive a motion to dismiss and on other grounds. Appellees filed a cross-appeal. We granted appellant’s petition for review, and we affirm on both the appeal and the cross-appeal.
I. Facts
When John Turner Abraham died in 1949, he was survived by five children, each of whom was to receive one-fifth of his substantial estate. His daughter, Frances Abraham, was the personal representative of the estate, but never filed an accounting, while continuing to manage the estate until her death in 1993. In the early 1970s, her three brothers filed claims against her for failure to file any inventory and accountings for the estate.
Frances had a better relationship with her sister, Sarah, and when Sarah became ill with cancer, Frances moved in to help care for her. In 1973, Sarah wrote a note to Frances transferring her one-fifth share in the estate to Frances “to pay on my debt to you.” Sarah died in 1975, survived by her husband and three children. Her children, appellants in this case, contend that, based on their mother’s conveyance of her one-fifth share to Frances, Frances promised to leave all of her estate to them upon Frances’s death.
At the time of Sarah’s death in 1975, each of the three brothers continued to have a one-fifth interest in their father’s estate. In 1979, Frances paid her brother, Henry, $112,500 for his share, then paid her brother, William, $150,000 for his share, and later conveyed property worth $130,000 to her brother, Fairfax, for his share. In 1979, following these acquisitions, Frances executed a will leaving one-half of her estate to the appellants. In 1980, Fairfax died, then William died in 1987, and Henry died in 1989. Their children are appellees and cross-appellants in this case.
In 1987, Frances executed another will, revoking the 1979 will, and devised her entire estate in equal one-fourth shares to be distributed per stirpes to the children of each of her four siblings. Following Frances’ death in 1993, Sarah’s three children contested this division of the estate, contending that it violated the alleged oral agreement requiring Frances to make a will devising all of the estate to them. The trial court granted appellees’ motion for summary judgment, and the court of appeals determined that the trial court erred in granting summary judgment and reversed and remanded. Jones v. Abraham, 58 Ark. App. 17, 946 S.W.2d 711 (1997) (“Jones F).
Following remand, appellants proceeded to trial in the chancery court on their assertion that Frances had violated the terms of an oral contract to make a will. The chancellor granted appellees’ motion for directed verdict after appellants rested their case. Appellees requested judgment for attorneys’ fees and costs, including costs which accrued after the entry of an offer of judgment. The chancellor denied these requests, and both parties appealed.
The court of appeals affirmed the trial court by a three-to-three decision, and we granted petition for review. On de novo review, we have concluded that the trial court reached the correct result in granting the motion to dismiss and that the ruling should be affirmed, notwithstanding the trial court’s mistaken use of the wrong standard of proof for granting a Rule 50 motion to dismiss. The trial court’s decision in the cross-appeal is also affirmed.
II. Contemporaneous-Objection Rule
In Jones II, the court of appeals did not reach the merits of appellants’ first three points on appeal because it sua sponte cited the “contemporaneous-objection rule” as a ground for denying appellate review of the chancery court’s order of dismissal. Id. Of the two cases cited by the appellate court in support of requiring a contemporaneous objection to the judgment or findings in chancery, neither case is apposite. Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996) is a case from circuit court, and Moses v. Dautartas, 53 Ark. App. 242, 922 S.W.2d 345 (1996) does not address the issue.
We further note that the appellate opinion is in conflict with Morrow v. Morrow, 270 Ark. 31, 603 S.W.2d 431 (1980). In Morrow, we interpreted Ark. R. Civ. P. 46, and held that because appeals from chancery are reviewed de novo, there is no requirement of contemporaneous objections to the findings, conclusions, and decree of the court to obtain review on appeal. Id. For those reasons, we have concluded that the requirement for a contemporaneous objection is not applicable to this case, and Jones II is overruled on this point.
III. Standard of Review
When we grant a petition to review a case decided by the court of appeals, we review it as if it were originally filed in this court. Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998); Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997). All of the issues raised in the court below are before the appellate court for decision, and trial de novo on appeal in equity cases involves determination of fact questions as well as legal issues. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). We will uphold the chancellor’s decision unless it is clearly erroneous. Id.
IV Motion for Directed Verdict
The fundamental issue on appeal is whether the chancellor properly granted appellees’ Rule 50 motion to dismiss. It is well established that, in ruling on a motion for directed verdict, the trial court views the evidence most favorably to the non-moving party and gives that evidence its highest probative value, taking into account all reasonable inferences deducible from it. In determining whether to grant or deny a motion to dismiss, the chancellor must determine whether the evidence would be sufficient to present to a jury if the case were a jury trial. Swink v. Giffin, 333 Ark. 400, 970 S.W.2d 207 (1998).
The chancellor failed to use the proper standard in granting the motion to dismiss. Rather than using the “sufficient evidence” test for motions for directed verdict, he relied upon McDonald v. Petty, 254 Ark. 705, 496 S.W.2d 365 (1973). The McDonald case stands for the proposition that a heightened standard of “clear, cogent, satisfactory, and convincing evidence” is required to determine whether an oral contract to make a will is valid. Id. In McDonald, we stated:
We have long recognized that an oral contract to make a will to devise or a deed to convey real estate is valid when the testimony and evidence to establish such a contract is clear, cogent, satisfactory and convincing. Williams v. Robinson, 251 Ark. 1002, 476 S.W.2d 1 (1972).
Id. The evidence “must be so strong as to be substantially beyond reasonable doubt.” Crowell v. Parks, 209 Ark. 803, 193 S.W.2d 483 (1946). Although the standard enunciated in the McDonald case is applicable to the proof required to establish an oral contract at the conclusion of a case, the standard to be applied to determine whether a Rule 50 motion for directed verdict should be granted during the trial is whether there was sufficient evidence to present to a jury in a jury trial. Swink, supra.
Here, the trial court erred in applying the “clear, cogent, satisfactory, and convincing” standard, rather than the “sufficient evidence” standard, to its consideration of appellant’s motion to dismiss. Notwithstanding this mistake, the trial court will be affirmed where it reaches the right result, even though it may have announced the wrong reasons, and the reviewing court is not constrained by the trial court’s rationale but may go to the record for additional reasons to affirm. State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999).
V. Oral contract to make a will
In our de novo review, we must determine whether sufficient evidence had been presented to the chancellor to support the submission to a trier of fact the question of whether there was an oral contract to make a will between Sarah Klerekoper and Frances Abraham. To survive the motion to dismiss, appellants were required to produce sufficient evidence of the essential elements of an oral contract. Crump & Rodgers Co. v. Southern Implement Co., 229 Ark. 285, 316 S.W.2d 121 (1958)(citing Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950)). We have explained “mutual obligations” as follows:
A contract to be enforceable must impose mutual obligations on both of the parties thereto. The contract is based upon the mutual promises made by the parties; and if the promise made by either does not by its terms fix a real liability upon one party, then such promise does not form consideration for the promise of the other party. ‘[MJutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound’ [citation omitted]. A contract, therefore, which leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other.
Townsend v. Standard Indus., Inc., 235 Ark. 951, 363 S.W.2d 535 (1963) (citations omitted). Mutual promises that constitute consideration for each other are the classic method of satisfying the doctrine of mutuality. J.L. McEntire & Sons, Inc. v. Hart Cotton Co., 256 Ark. 937, 511 S.W.2d 179 (1974).
Based upon our de novo standard of review, we hold that there was not sufficient evidence of mutual obligations for an alleged oral contract between Sarah Klerekoper and Frances Abraham to withstand a motion to dismiss. The trial court was not presented with any written evidence that supported the existence of an oral agreement between the two sisters. The complaint alleges that on or about May 1, 1973, Frances Abraham orally agreed to make a will, leaving all of her property to the children of her sister, Sarah Klerekoper, in return for Sarah’s conveying her one-fifth interest in the J.T. Abraham estate to Frances. After Sarah’s conveyance, it appears that at the time of the alleged agreement, Frances held two-fifths of the J.T. Abraham estate. However, in 1979, after acquiring her three brothers’ interests in the estate, Frances executed a will in which she bequeathed one-half of her estate to appellants. This is contrary to the alleged oral agreement. In 1987, Frances executed a second will that divided her estate into equal one-fourth shares to be distributed to the survivors of each of her siblings. This will is also contrary to the alleged oral agreement.
It was undisputed that Sarah Klerekoper executed documents wherein she voluntarily relinquished to Frances her one-fifth interest in the J.T. Abraham Estate. Sarah executed a “Release of all Claims” in 1974. In this document, Sarah warrants that no other inducements or promise had been made to her in order to induce her to execute the document. It is also undisputed that Sarah prepared a handwritten letter to Frances, dated May 5, 1973, that requests that her one-fifth interest be transferred to Frances “to pay on my debt to you.” These exhibits are written evidence that defeat the notion that Sarah’s transfer was consideration for the performance of an alleged oral contract to make a will. A promise to make a will, where no consideration is shown, will not be enforced. Watts v. Mahon, 223 Ark. 136, 264 S.W.2d 623 (1954).
Appellant Jean Klerekoper Mallet alluded to the agreement between her deceased mother and her aunt in her testimony. She testified that “[Frances] said my mother was going to leave her part of the J.T. Abraham estate to Frances and Frances was going to take care of it. Frances then said what was left of the estate when she passed away would go to my brother, my sister, and me.” However, Ms. Mallet further testified that she had personal knowledge of her uncles’ settlements with Frances. She stated, “When her brothers took Frances to court, they got the part of the J.T. Abraham estate they wanted. I believe that was after my mother [Sarah] died. When Frances told me she was going to leave everything to me, I didn’t know what that would have included. I don’t know whether she had possession of her brother’s portion of the J.T. Abraham estate at that time.”
Appellant Joseph Klerekoper testified that he “never heard anything from Frances about an agreement between Frances and Sarah,” but he did hear about the agreement from his deceased mother. Julia Klerekoper Jones testified that Frances told her prior to 1977 that she would leave her estate to Sarah’s children. Ms. Jones also stated that “[t]here is no writing to prove the agreement I say Frances had with my mother.”
Maurice Klerekoper, Sarah’s husband, testified that Sarah gave her one-fifth interest to Frances by way of a quitclaim deed. He said it was his understanding that Frances would give his children a two-fifths portion of the J.T. Abraham estate. He further testified that he never had any discussions with Frances about the agreement that she and his wife allegedly made.
Appellants proffered the testimony of three disinterested witnesses, who testified that Frances told them she intended to leave her estate to the Klerekoper children. Although the chancellor found all of these proposed witnesses to be credible, he found that “none of these witnesses were able to provide testimony about the existence of any contract between Frances and Sarah or knowledge as to the alleged consideration between Frances and Sarah for the contract.”
Additionally, John Reed testified that Frances told him she bought out her brothers’ interest in the J.T. Abraham estate, and that Sarah gave her interest to Frances. Mr. Reed testified that he was present during a meeting in the late 1970’s between Frances, her attorney, and his legal secretary. Mr. Reed testified that Frances said she bought out her brothers’ interests, and that she had her sister’s [Sarah’s] interest. Mr. Reed further testified that Frances said that, at her death, her property would go to Sarah’s children. However, Mr. Reed’s testimony does not show that Frances’s statement of her intent to give property to Sarah’s children was in consideration of Sarah’s gift to her.
On cross-examination, Mr. Reed testified that it was his understanding that Frances Abraham planned to give appellants her two-fifths portion of the J.T. Abraham estate “simply because she wanted to.” While Mr. Reed’s testimony reflected Frances’s acknowledgment of Sarah’s gift to her, and her intent to leave property to Sarah’s children, his testimony does not demonstrate a quid, pro quo, or a mutual obligation, between Frances and Sarah. None of the witnesses provided evidence as to alleged mutual promises between the two sisters. We are left with the written statements that Sarah’s transfer of her one-fifth share was merely a gift to Frances.
The trial court correctly determined that an element of the contract — exactly what property Frances allegedly agreed to convey to the Klerekoper children — was not proven. In our de novo review, we have concluded that there was not sufficient evidence to support the existence of an oral contract to make a will. We further find that the chancellor’s decision to grant appellee’s motion to dismiss was not clearly erroneous.
VI. Hearsay evidence
Appellants contend that the trial court erred in refusing to admit testimony of third parties to establish Sarah’s intent to make an oral contract with her sister. At trial, several witnesses were prepared to testify to Sarah’s intent in transferring her one-fifth interest to Frances. The chancellor ruled that this evidence was inadmissible as hearsay. Appellants appeal his ruling, arguing that the testimony is admissible under the state-of-mind hearsay exception under Ark. R. Evid. 803(3). This hearsay exception provides in pertinent part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(3) A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
In most circumstances, Ark. R. Evid. 803(3) allows for the admission of state-of-mind testimony concerning a victim’s intent to do something in the future. Nicholson v. State, 319 Ark. 566, 892 S.W.2d 507 (1995). We have extended the state-of-mind hearsay exception to situations involving a decedent’s intent to dispose of property when the statements occurred near the death of the declarant. See Easterling v. Weedman, 54 Ark. App. 22, 922 S.W.2d 357 (1996).
The testimony at issue constitutes multiple hearsay. Appellants proffered third-party testimony of statements assertedly made by Sarah Klerekoper purportedly to show Sarah’s intent in giving her one-fifth interest to Frances. However, the testimony was also directed toward proving Frances Abraham’s intent to bequeath her property to appellants. This testimony constitutes hearsay under Ark. R. Evid. 801(c), as it was being proffered for the truth of the matter asserted. Hearsay is inadmissible except as provided by law or by the rules of evidence. Ark. R. Evid. 802. Statements by an out-of-court declarant, both of which are repeated in court by a witness, are inadmissible unless each part of the combined out-of-court statements conforms with an exception to the rule excluding testimony in the form of hearsay. Ark. R. Evid. 805. In this case, Ark. R. Evid. 803(3) permits testimony relating to Sarah’s state of mind, but it does not permit testimony about Sarah’s statements for the purpose of establishing what Frances’s state of mind was. Therefore, the chancery court properly excluded this testimony.
VII. Cross-appeal
As their first allegation of error, cross-appellants argue that this appeal should be dismissed because cross-appellees did not timely and properly docket their record. Under Ark. R. App. P.— Civil 5(a), the record must be filed with the clerk of the Arkansas Supreme Court and docketed therein within ninety days from the filing of the first notice of appeal, unless the time is extended by order of the trial court. Cross-appellants present no convincing argument and no case law on the subject. They merely raise the issue with the court. We have said that when a party cites no authority or convincing argument on an issue, and the result is not apparent without further research, the appellate court will not address the issue. See Webber v. Arkansas Dep’t of Human Servs., 334 Ark. 527, 975 S.W.2d 829 (1998); Country Corner Food & Drug, Inc. v. First State Bank, 332 Ark. 645, 966 S.W.2d 894 (1998).
However, the timely filing of a notice of appeal is essential to our jurisdiction. LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980). In this case, it appears that the record was properly filed. The trial court’s order was entered on January 29, 1998. The notice of appeal was timely filed on March 2, 1998. Appellants properly filed a motion for extension of time for filing of record on May 29, 1998. The order granting that extension of time was filed on June 1. A subsequent order, entered on July 21, 1998, granted another extension of time until August 29, 1998, which was on a Saturday. The record then was filed on the following Monday, August 31, 1998. Filing the record on the following Monday is proper under Ark. R. App. P. — Civil 9. Furthermore, the trial court had authority to grant these extensions of time under Ark. R. App. P. — Civil 5(b). For these reasons, we observe that the record was properly filed with this Court.
As their second allegation of error, cross-appellants argued that the chancellor erred in his denial of attorneys’ fees and costs under Ark. Code Ann. § 16-22-308 (Repl. 1999). In his order, the chancellor stated that he denied the attorneys’ fees for the following reasons:
I am going to grant defendants’ motion to dismiss the plaintiffs’ case. I hope the parties and attorneys understand that I am not na've about this matter. Mr. Abraham left an estate in 1949. He left a Will. I personally believe that there have been more deceptions and more broken promises and more breaches of fiduciary duties and trusts than anybody in this room could possibly ever know or that any judge in the State of Arkansas could ever straighten up. I believe plaintiffs were acting in good faith in trying to enforce what they believe were one of those promises. Plaintiffs’ attorneys did an excellent job under the constraints of Arkansas law and the rules of evidence and the fact that they were trying to prove something that occurred years and years ago with deceased witnesses. For that reason, I am not going to award any attorneys’ fees or costs to any party in this action.
The decision of whether to award attorneys’ fees in a contract case is governed by Ark. Code Ann. § 16-22-308 which provides in pertinent part:
In any civil action to recover on ... breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasona ble attorney fee to be assessed by the court and collected as costs. [Emphasis added.]
The operative word in this statute is may. 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. Chrisco v. Sun Industries Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). A trial court is not required to award attorney’s fees and, because of the trial judge’s intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing party’s counsel, we usually recognize the superior perspective of the trial judge in determining whether to award attorney’s fees. Chrisco, supra. The decision to award attorneys’ fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998); Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). A grant of attorney’s fees is an issue within the sound discretion of the chancellor and will not be disturbed on appeal absent an abuse of discretion. Burns, supra. In this case, we conclude that the chancellor did not abuse his discretion in denying attorneys’ fees and costs.
As their third allegation of error, cross-appellants also argue that they should have been awarded attorneys’ fees under Ark. Code Ann. § 16-22-309 (Repl. 1999) and Ark. R. Civ. P. 11. This argument is unfounded. In order to prevail on a claim for attorneys’ fees, the movant must show, in essence, that there was a complete absence of a justiciable issue of law or fact raised by the opposing party. Ark. Code Ann. § 16-22-309 (b). Cross-appellants never specifically requested that the chancery court award them attorney’s fees pursuant to Ark. Code Ann. § 16-22-309. A party will not be heard to complain on appeal that the trial court did not grant him a particular kind of relief if he did not request it. Fine v. City of Van Buren, 237 Ark. 29, 371 S.W.2d 132 (1963).
Ark. R. Civ. P. 11 provides for sanctions; however Rule 11 requires that a motion for sanctions be made separately from other motions or requests. The separate motion must also describe the specific conduct alleged to be violative of Rule 11. Cross-appellants never requested that the chancery court impose Rule 11 sanctions. Therefore, they are procedurally barred from obtaining attorneys’ fees on this theory.
Cross-appellants also argue that the chancery court erred in denying their motion styled, “Offer of Judgment,” which they hied on October 16, 1997. Cross-appellants filed this motion pursuant to Ark. R. Civ. 68. In pertinent part, cross-appellants’ offer of judgment states:
The [cross-appellants] offer to withdraw any claim for judgment for their attorneys’ fees and costs against the [cross-appellees] in exchange for the [cross-appellees’] dismissal of their lawsuit filed herein.
If this offer is accepted, the [cross-appellees] shaE be entitled to receive one-third of one-fourth of the net value of the estate of Frances Abraham to be calculated at the date of final distribution, as set forth in the Last WiE and Testament of Frances Abraham....
If this offer is not accepted by the [cross-appeEees] and [they] do not receive an award at trial of an amount in excess of the sum represented by this offer, then the [cross-appeEees] shaE be hable to the estate for all costs accrued hereafter and the estate shaE seek judgment for the same as provided by [Ark. R. Civ. P.] 68.
Ark. R. Civ. 68 provides in pertinent part:
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to aEow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued.
The purpose of Rule 68 is to provide a means by which a defendant can compel the plaintiff realistically to reassess his claim and thereby, perhaps, persuade plaintiff to settle. See Darragh Poultry & Livestock Equipment Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804 (1988).
The chancellor denied cross-appellants’ motion for costs based on their October 1997 offer of judgment. Cross-appellants made a settlement offer of “one-third of one-fourth of the net value of the estate of Frances Abraham,” which was no greater than the minimum amount that cross-appeEees were to inherit under Frances Abraham’s last will executed in 1987. The three appellants were to inherit one-fourth of Frances Abraham’s estate under the 1987 will. Rule 68 is not applicable where a defendant makes an offer of settlement that is no greater than the minimum amount that the plaintiff can recover. The trial court was correct in its ruling.
Finally, cross-appellants argue as an additional reason for affirmance the doctrine of accord and satisfaction. We need not consider their argument because, if we affirm a judgment on one ground, we need not consider alternative grounds for affirmance. Barnhart v. City of Fayetteville, 335 Ark. 57, 977 S.W.2d 225 (1998).
On October 25, 1999, appellees filed a separate petition for taxation of costs and attorneys’ fees, which is denied for the reasons stated above.
We affirm on appeal, and on the cross-appeal.
ARNOLD, C.J. and Brown, J., not participating.
The difficulty of presenting sufficient evidence for an oral contract to make a will has been reflected in the articulation of public policy considerations by the legislature in enacting Ark. Code Ann. § 28-24-101 (1987). While this statute is not relevant to the disposition of this case, we note that following its adoption in 1981, contracts to make a will or devise, if executed after June 17, 1981, can only be established by: “provisions of a will stating material provisions of the contract; or [a]n express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or [a] writing signed by the decedent evidencing die contract.” Id. | [
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PER CURIAM.
Appellant Johnny J. Pemberton filed a notice M. appeal from his criminal conviction on December 14, 1999. Rule 5(a) of the Arkansas Rules of Appellate Procedure provides that a record must be filed within ninety days of the filing of the first notice of appeal unless the time is extended by the trial court. Subsection (b) of the Rule provides that the trial court may extend the time for filing the record with this court if the order of extension is entered before the expiration of the original filing period. On March 9, 2000, Appellant, by his attorney, Greg Fallon, filed a motion for extension of time to file the record. The trial court did not grant Appellant’s motion until March 16, 2000, after expiration of the original filing period.
Mr. Fallon admits in the instant 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. Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam) (citing Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam)). Accordingly, the motion for rule on the clerk is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). | [
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Frank Holt, Justice.
This case arose from a head on collision in which two people were killed. A jury convicted appellant on two counts of involuntary manslaughter, Ark. Stat. Ann. § 41-2209 (Repl. 1964), and assessed his punishment at two years on each count in the State Department of Correction. Appellant first asserts for reversal of the judgment that the deputy clerk and the court improperly commented upon appellant’s right to remain silent. We must agree as to the comment by the court.
After the jurors were selected and sworn, the following discussion occurred:
THE COURT: All of the witnesses in this case, please stand and be sworn. Defendant is now in jeopardy.
(A deputy clerk, Mrs. Shipman, asks that the defendant be sworn, along with witnesses in the case.)
MR. LINEBERGER: I think we have the right to have him sworn at a later time.
THE COURT: Sure. Sure. He doesn’t have to take the stand at all if he doesn’t want to.
Appellant objected and asked for a mistrial which was refused.
In Russell v. State, 240 Ark. 97, 398 S.W. 2d 213 (1966), we said:
If the accused is to have the unfettered right to testify or not to testify he should have a correlative right to say whether or not his silence should be singled out for the jury’s attention.
In Mosby v. State, 249 Ark. 17, 457 S.W. 2d 836 (1970), the trial court commented during voir dire that the jury would be instructed at the close of the trial. There the court said “[O]ne of the instructions will be concerning the situation that the defendant did testify and in the event he didn’t testify concerning that situation.” In holding this constituted prejudicial error, we said:
Based upon the record before us, we cannot say whether the remarks of the court upon voir dire were invited or not. So, in that state of the record, the fact that the trial court brought appellant’s silence or non-silence as a witness to the jury’s attention during voir dire rather than during final instructions is of no consequence. The appellant’s ‘correlative right to say whether or not his silence should be singled out’ was infringed upon just the same. The prerogative of so alerting the jury was exclusively within the option of the appellant.
In the case at bar, the appellant’s right to testify or not to was brought to the jury’s attention by the court. That unfettered right belongs to appellant. The state argues that Russell and Mosby are inapplicable because the court’s remark was invited by appellant’s attorney. We cannot agree. His attorney was merely stating correctly that the appellant had “the right” to be sworn later.
Appellant next asserts that the trial court erred in allow ing an excused witness to be recalled to the stand. Pursuant to Ark. Stat. Ann. § 43-2021 (Repl. 1964), both parties invoked the “rule.” The court then excluded the witnesses from the courtroom. A policeman testified for the state. He was excused by the state “to return to his duties.” However, unknown to the parties, he remained in the courtroom and heard other testimony before his presence was observed. Over appellant’s objection, the officer was recalled by the state and gave additional testimony which rehabilitated his earlier testimony.
The appellant relies on our recent cases. Reynolds v. State, 254 Ark. 1007, 497 S.W. 2d 275 (1973); and Vaughn v. State, 252 Ark. 505, 479 S.W. 2d 873 (1972). The appellee responds that it was discretionary with the court in permitting the witness to testify again upon recall. Cluhb v. State, 230 Ark. 688, 326 S.W. 2d 816 (1959); and Harris v. State, 171 Ark. 658, 285 S.W. 367 (1926). Suffice it to say that the witness’ presence in the courtroom after testifying is not likely to occur again upon a retrial.
Appellant next asserts that the court erred in permitting an investigating officer to give his opinion as to the direction the two vehicles were traveling when they collided. There was no eyewitness to the accident. A state policeman, who investigated approximately five accidents a week for eleven years, observed the skid marks and the resting places of the vehicles involved. When asked “[W]hat did you physically observe, officer,” he responded that appellant’s “vehicle was traveling toward Fayetteville.” In the circumstances, we cannot. agree that this experienced officer’s testimony, based upon his observation of the physical evidence at the scene, was speculative and invaded the province of the jury with respect to a factual issue.
Appellant next asserts that the trial court erred in allowing testimony about appellant’s blood analysis. Appellant’s contention is that a proper chain of custody was not proven. The blood sample was taken, sealed and labeled by a lab technician in the presence of a state police officer. The sample remained in the officer’s custody until it was delivered to Lt. Karl Martens of the Springdale Police Department. Martens testified that he put the sample in the refrigerator and stayed in the room until he made the analysis. After completion of the analysis, the vial was placed in an unlocked storage cabinet. There is no evidence of any tampering with the vial. Any access to it by others, in the circumstances, would bear only upon the credibility or weight of the evidence.
Appellant contends that the blood sample was drawn at a doctor’s request and, therefore, the doctor-patient privilege prevails. Ark. Stat. Ann. § 28-607 (Supp. 1973); and Ragsdale v. State, 245 Ark. 296, 432 S.W. 2d 11 (1968). The lab technician testified that the blood sample was taken by him at a doctor’s request. However, the investigating officer disputed this and testified that it was done only at his direction and in his presence. Furthermore, there is absolutely no evidence that the sample was taken for purposes of medical treatment. We find no merit in this contention.
Appellant also asserts that the state failed to prove that the blood test was performed according to methods approved by the Arkansas State Board of Health and Ark. Stat. Ann. § 75-1046 (b) and § 75-1031.1 (c) (Supp. 1973). There is evidence of substantial compliance with the Health Department rules and pertinent statutes. A qualified lab technician drew the sample. Pursuant to Arkansas State Department of Health rules (AP-210), he cleansed the skin with a nonalcoholic solution. The sample was placed into a container with an anticoagulent arid sealed pursuant to AP-213. The technician, who was familiar with these rules, labeled the vial as to the time it was drawn, the date and appellant’s name. AP-213. Pursuant to AP-215, the officer, who requested the sample, observed the extraction in order to testify as to authenticity. Lt. Martens refrigerated the sample when he obtained possession. AP-214. He is a certified operator and used a certified gas chromatograph for the analysis, a method approved by AP-315.
AP-210 requires that the sample be collected within two hours of the alleged offense. In this case, the most accurate testimony as to the time of the accident was 9:30 p.m. However, the victims were not administered to in the emergency room of the hospital until 11:30 p.m. The blood sample was drawn from appellant about 12:40 a.m. Lt. Martens testified on cross-examination that the longer one waits to run the blood alcohol test the percentage of alcohol decreases. Certainly, appellee has shown substantial com-plience and no prejudicial error is demonstrated.
Finally, appellant asserts that the trial court erred in overruling appellant’s motion for a directed verdict. In Burks v. State, 255 Ark. 23, 498 S.W. 2d 336 (1973), we reiterated our well established rule:
.... a directed verdict is proper only when no fact issue exists and on appeal we review the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence.
Shortly before the accident, a witness observed appellant at a liquor store. To him, appellant acted drunk. “I told the man that I didn’t think that he was able to drive, and he told me to worry about my own business.” The liquor store is between the site of the accident and Prarie Grove. The state policeman observed the physical evidence, as previously indicated, and testified appellant was traveling toward Fayetteville. Another witness, on cross-examination, testified that appellant told him he was on his way to Springdale, which is in the Fayetteville direction. To travel toward Fayetteville, the proper lane of travel would be the right lane. The accident, a head on crash, occurred on the left side of the highway near the shoulder. In the other car were two people, who lived at Prairie Grove, and were pronounced dead on arrival at the hospital. The weight of alcohol in appellant’s blood was 0.16 percent, which is above the level considered to be a presumption that a person is intoxicated. Ark. Stat. Ann. § 75-1031.1 (a) (3) (Supp. 1973). The appellant was found within a few minutes following the accident unconscious and alone in his car which was on fire. The impact was so terrific that it left broken glass, debris and oil where it occurred. It appears from the exhibits that both cars were completely demolished. One witness testified that it took him approximately five minutes to extricate the appellant from his car.
It must be said that a jury could infer that the appellant was alone and driving toward Fayetteville. In Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733 (1974). we said:
.... the question whether circumstantial evidence excludes every reasonable hypothesis other than an accused’s guilt is usually for the jury, and no greater degree of proof is required where the evidence is circumstantial. (Citing cases.) It is only when circumstantial evidence leaves the jury, in determining guilt, solely to speculation and in conjecture that we hold it insufficient as a matter of law. (Citing cases.) In testing its sufficiency, we must view it in the light most favorable to the state.
We are of the view the evidence is not insubstantial as a matter of law and that it constituted a factual issue for the jury’s determination.
Reversed and remanded for the error indicated. | [
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J. Fred Jones, Justice.
A. C. (Jack) Walker died on November 12, 1969, and Betty Walker Yarbrough was appointed administratrix of his estate in compliance with her petition alleging that she was the only daughter and sole surviving heir of Mr. Walker. The appellant, as Bonnie Black Walker, filed a petition in the probate court alleging that she was the widow of Mr. Walker and that her minor child, Janet Elaine, was a daughter and heir of Mr. Walker and as such was entitled to a one-half interest in his estate after the expenses of administration, and her own dower interest were set aside. The appellant prayed that her dower interest in the property of Mr. Walker be set aside and awarded to her and that their daughter, Janet Elaine, be awarded her one-half interest in the remainder of Mr. Walker’s estate. Bonnie’s petition was based on an alleged common-law marriage. The probate judge found that Bonnie failed to establish a valid common-law marriage with Mr Walker. He dismissed her petition and decreed that Betty Walker Yarbrough was the sole surviving heir of Mr. Walker and was entitled to his estate.
On appeal to this court Bonnie and Janet Elaine rely on two points for reversal: First, they contend that the chancellor erred in finding that A. C. (Jack) Walker and Bonnie Black Walker were not common-law husband and wife and, second, they contend that there was substantial evidence Janet Elaine was the daughter of A. C. (Jack) Walker and that he recognized her as such. We do not reach appellants’ second point because we are of the opinion the chancellor was correct in finding that A. C. (Jack) Walker and Bonnie Black Walker were not common-law husband and wife.
Bonnie’s petition, insofar as the child is concerned, is based on Ark. Stat. Ann. § 61-141 (b) (Repl. 1971) which reads as follows:
“If a man have a child or children by a woman, and afterward shall intermarry with her, and shall recognize such child or children to be his, such child or children shall be deemed and considered as legitimate.”
It is conceded by all parties concerned that Mr. Walker and Bonnie were never married in a civil or religious ceremonial marriage and apparently the parties recognize that before Bonnie or her child, Janet Elaine, would be entitled to share in Mr. Walker’s estate, it would be necessary to prove that Mr. Walker had intermarried with Bonnie.
The evidence is to the effect that Mr. Walker was approximately 65 and Bonnie was approximately 34 years of age when they met in Hot Springs in 1958 or 1959. Mr. Walker owned farmland with a house thereon near Russellville and also maintained a house trailer at different locations in Hot Springs. Bonnie owned her home in Hot Springs and she and Mr. Walker entered into an illicit relationship and periodic illegal cohabitation in Hot Springs and on his farm near Russellville, and the relationship continued intermittently until about 1967.
The child Janet Elaine was born to Bonnie on August 28, 1963. There is considerable conflicting evidence directed to the question of whether Mr. Walker was the father of the child and to his acknowledgment that he was the father of the child as well as to his acts and intentions concerning her welfare. We find it unnecessary to discuss this evidence because this case turns on the question of whether Mr. Walker and Bonnie ever married. Common-law marriages, of course, are not permitted in Arkansas and the question narrows down to whether or not a marriage was contracted between the parties outside the state of Arkansas which would be recognized in this state under Ark. Stat. Ann. § 55-110 (Repl. 1971) which reads as follows:
“All marriages contracted without this State, which would be valid by the laws of the State or country in which the same were consummated, and the parties then actually resided, shall be valid in all the courts in this State.”
The evidence on this point is to the effect that in 1966 Mr. Walker took Bonnie and her daughter on a trip to California where they spent four or five days with relatives in that state and returned to Arkansas through the state of Colorado where they also spent five or six days visiting with Bonnie’s relatives in that state. The evidence is also to the effect that Mr. Bob Chandler had lived with Mr. Walker in his home near Russellville and they had become quite good friends. In 1966 Mr. Chandler was in the automobile business at De Queen, Arkansas, and Mr. Walker visited with him on different occasions. Chandler testified that Mr. Walker brought Bonnie and the child to De Queen in 1966. He said he knew that Bonnie and Walker were not married and he mentioned that fact to Mr. Walker. He said Mr. Walker first told him that he and Bonnie had married in Old Mexico, but that he then inquired about the marriage laws in Oklahoma as well as other states and he directed Mr. Walker to consult an attorney in De Queen.
The evidence is to the effect that prior to making the trip to California, Mr. Walker and Bonnie Mae Hawthorn made application in Sevier County for a marriage license and license was issued on May 9, 1966. Bonnie said Mr. Walker carried the marriage license with them on their trip to California and surrendered the license unused upon their return to Arkansas.
The appellant argues that she and Mr. Walker succeeded in contracting a common-law marriage, primarily in the state of Colorado which recognizes common-law marriages, and that the marriage so contracted should be recognized in Arkansas. We are of the opinion that the evidence falls far short of proving the consummation of a marriage contract entered into in the state of Colorado or any other state.
The evidence in this case is as consistent with concerted effort and intention to avoid a marriage contract as it is in ent ring into and consummating one. According to Bonnie Mae’s own testimony, she and Mr. Walker simply entered into an illicit relationship at Hot Springs, Arkansas, in about 1959 and continued that relationship at intervals for about ten years. She said that in 1967 she refused to go to Russellville with Walker and excerpts from her testimony are as follows:
“Q. At that time you refused to come to Russellville with him did you not?
A. Í had been working on my house at Alpine. Yes, sir, I did. I told him he could just take me back to. Alpine and he could go his way which was up at Russellville to Betty or to Mrs. Edna Walker and Myra. And then in uh - September of ’67 I went to work. I went to work at the Ouachita Hospital which that means 1 was not staying up at Russellville. I was staying then in Hot Springs but Jack was still in and out with me at my house on Alpine, 116 */2.
* * *
Maybe a week or two weeks he’d be gone. And then he would be back. But as far as living with him, I considered myself living with him even if he was in and out because that was his way of doing things.”
Bonnie said she and the child went on a trip to California and back through Colorado with Mr. Walker. She said she had been with him to El Paso, Texas, and Old Mexico. She said they first visited Walker’s niece, Imajean Carney, in California. She said they occupied the same room and bed in a guesthouse at Mrs. Carney’s home and told Mrs. Carney they were married. On this point Bonnie testified as follows:
“Q. Now did you represent — did you tell Mr. and Mrs. Carney that you were married?
A. Yes, sir.
Q. How were you introduced when you were in California?
A. Well, I don’t really remember how Jack put it, but he was always saying I was his nurse, and his wife, and just everything. And I was. Even a painter, a plumber, 1 don’t know what else. I’ve even helped him mow the grass.
Q. Did Mrs. Carney introduce you and Mr. Walker to any of her friends out there?
A. Her friends?
Q. Yes.
A. Oh, she had a neighbor, but I couldn’t remember the neighbor’s name that came over that lived close to her. She did but I couldn’t.
Q. Do you know how she introduced you?
A. I don’t remember her words, no, sir.”
Bonnie also said they spent one night in a motel in California and also visited a nudist colony.
“Q. Will you tell us, please, what was said at the nudist colony concerning your marriage?
A. Well, Jack — he asked Jack if that was his wife and he said yes. And Jack had to sign the register. He signed it Bonnie Black, Janet and Jack Walker. Maybe he said A. C. Walker. I don’t know. We got the little card, Bonnie and Jack Walker, I believe. Three day visit or something like that.”
Bonnie said they also visited with Russell Cannon in California. She said they occupied the same bedroom in the Cannon home and told Cannon they were married.
“Q. Did you all stay in the same room at Russell Cannon’s house?
A. Right.
Q. Did you all represent to Russell Cannon that you were married?
A. Yes.
Q. Did Russell Cannon introduce you as man and wife?
A. I can’t recall. We were at his shop almost every day but I don’t know if anybody come in.
Q. And you all had Janet with you at the time?
A. Janet was with me.
Q. Then after you left Russell Cannon’s house where did you go?
A. Oh, we went to uh — my aunt’s, Cheyenne Wells. We stopped somewhere overnight. I don’t just remember, in Arizona I believe. But I don’t know where it was, but we did s,'op, make one stop between California and my aunt’s. And my aunt was in the hospital and we went to my cousin’s in Arapaho, Colorado, and she lives sort of out in the country, and she had a place in town which town is a little wide spot in the road. And Jack and I and Janet stayed at her house in town. And they were out on the farm.
Q. This is Mrs. Irwin, is that correct?
A. Right, Mary Francis.
Q. Did you and Jack tell Mr. and Mrs. Irwin that you were married?
A. Yes, sir.
Q. Did you all live together at her house in town?
A. Yes, sir.
Q. With Janet?
A. With Janet.
Q. And you stayed there I believe almost a week, is that right ?
A. Well could be. I don’t remember just how many days.
Q. Did your cousin introduce you as husband and wife to her friends there in Arapaho?
A. Yes, sir.
Q. And Mrs. Walker, you and Jack Walker actually never went through a marriage ceremony, did you?
A. We never said I do in front of Justice of the Peace or minister but other than that we went through blood testk and all of that. Got the license and everything.
Q. All right, now I believe that one time you all went to Mexico for the purpose of getting married, is that correct?
A. Right.
Q. Would you tell us what happened on that time?
A. Oh, we went to Mrs. Douglas’s in El Paso and she went with us over into Mexico with the —
Q. Did you do anything toward completing the marriage?
A. Well we had our blood tested again in El Paso, Texas and I was with Jack except I wasn’t with him. Mrs. Douglas — I went over with him but I never did —Jack never did want me around him when he was talking about business with anyone and he went in several places, and what they talked about, I just couldn’t say. I presume I know what they went in there for to talk about but I wasn’t with him.
Q. In any event you went across the river into Mexico but you did not complete the marriage there as far as the legal formalities?
A. No, sir.” (Emphasis added).
On cross-examination Bonnie testified in part as follows:
“Q, When do you say you and Jack entered into a common-law marriage?
A. Well I would say when we first started living together and having sexual intercourse.
Q. In Arkansas, Hot Springs and Russellville?
A. Right.
Q. All right, and that’s when you are.telling the court it occurred?
A. Well if I understand your question right.”
On cross-examination Bonnie testified that the trip to El Paso, when they visited Mrs. Douglas, was in December, 1966, after their trip to California.
Mr. Russell Cannon testified in part as follows:
“Q. You’ve heard Mrs. Black's testimony that she and Jack and Janet visited in your home in California?
A. Yes, sir.
Q. Sometime in the summer of 1966?
A. Yes, sir.
Q. Do you recall that visit ?
A. Yes, sir.
Q. Mr. Cannon, do you recall anyone introducing Jack and Bonnie as husband and wife?
A. No, sir.
Q. Do you remember him referring to her as his wife?
A. No, sir.
Q. Do you remember anyone saying anything about her being his wife in his presence?
A. No, sir.
Q. Did you introduce them to any of your friends?
A. Did I introduce them to any of my friends?
Q. Yes.
A. No, sir, I don’t think so.
Q. Do you remember how long they were there?
A. Probably four or five days, six days.
Q. What were the sleeping arrangements while they were there?
A. Well Bonnie and this baby slept in my wife’s bedroom, and I slept with my uncle, and my wife slept in the daybed.
Q. You mean you slept with Jack Walker?
A. Yeah.
Q. He your uncle?
A. Yeah.
Q. This was the sleeping arrangements when you were in California?
A. Yes, sir.
Q. Was that the only time they were at your house?
A. Yes, sir.
* # *
Q. Did you ever talk with him about his relationship with Bonnie Black and Janet? Other than —
A. Other than just asking who she was and he said she was his nurse. He couldn’t live alone. Had sugar diabetes and he’d pass out.”
Mrs. Irwin testified on interrogatories that she and Bonnie are first cousins; that Bonnie and Walker spent three or four days in her home in Colorado in 1966. She said Bonnie told her they were married but that Mr. Walker did not. She said they occupied the same bedroom while there and that she introduced them to Guy Cuttler as husband and wife.
Several deeds and mortgages executed by Walker as well as Bonnie were introduced into evidence and they were separately signed by Walker as well as Bonnie as single and unmarried persons. Bonnie retained her name as “Black” on her Social Security identification. The child’s birth certificate recited her name as “Black,” and this was never changed.
The appellant cites Darling v. Dent, 82 Ark. 76, 100 S.W. 747, and Stilley v. Stilley, 219 Ark. 813, 244 S.W.2d 958, as precedent for recognizing out of state common-law marriages as legal marriages in Arkansas. These cases are readily distinguishable from the case at bar. In Darling there was uncon-troverted testimony that Mr. Darling and Mrs. Williams went to Texas with the intent of obtaining a divorce for Mrs. Williams and getting married. Mr. Williams died and Mrs. Williams described an actual marriage ceremony in Texas followed by continuous cohabitation as husband and wife for about eight months in Texas, followed by about eleven years in Arkansas until Darling’s death.
In Stilley, supra, the parties were ceremoniously married in Arkansas and went to Kansas where their five children were born. Mrs. Stilley obtained a divorce in Kansas and was awarded the custody of the children and child support. She returned to Arkansas and by amended complaint in chancery court alleged that she was under age at the time of the marriage and prayed that the marriage be canceled as absolutely void and of no effect. We held, in effect, that Mrs. Stilley had ratified the Arkansas marriage, even if it were void, by living with Mr. Stilley as husband and wife for nine years in Kansas (a common-law marriage state) and bearing five children and obtaining a divorce in which the decree recited that they were married.
The appellant also relies on the Colorado case of Taylor v. Taylor, 10 Colo. App. 303, 50 P. 1049, as setting out the requirements for a valid common-law marriage in that state. The Taylor case was also relied on in the Nebraska case of In Re Binger’s Estate, 63 N.W.2d 784. The pertinent facts as well as the statutory law in that case were almost on all fours with those in the case at bar. In Binger’s Estate an invalid marriage was performed in Missouri and a Colorado common-law marriage was relied on and in issue. In that case the Nebraska Court said:
“ [P]laintiff argued that after her legal impediment had been removed, there was a common-law marriage which we should recognize by virtue of the law and decisions of Colorado, concededly a common-law state.
That contention is predicated upon section 42-117, R.R.S.1943, which provides: ‘All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, shall be valid in all courts and places in this state.’ The question is then whether or not under the circumstances of this case there was any valid common-law marriage in Colorado, which this state should recognize. We conclude that there was not.
Plaintiff claims that there was a common-law marriage in Colorado because upon three pleasure trips respectively, one in October 1947, one in June 1950, and one in September 1951, she and decedent twice attended conventions and once visited relatives in Colorado for 3 or 4 days each trip. On such occasions they either registered at a named motel as husband and wife, or stayed with relatives, where they slept in the same bed, cohabited, and were introduced to or by friends and relatives as husband and wife, after which they returned to their home in Weeping Water. No claim is made that they ever actually resided or had a domicile in Colorado or in any other state except Nebraska. There is no evidence that any of such trips to Colorado were made for the purpose of changing their domicile or residence to that jurisdiction or contracting a common-law marriage while they were in that state, or that while there any agreement was ever made by them to become husband and wife, or that they ever thought that such was necessary to give their marriage any validity.”
In Binger’s Estate, supra, the Nebraska Court cites and comments on several decisions from other states and in reference to the Colorado cases, said:
“Plaintiff relies upon the above cases, but they are all distinguishable. 7’he parties therein all lived in and were bona fide residents of Colorado where as such they, in good faith, intending to be married, continuously cohabited, and held themselves out as husband and wife in that state for long periods of time. Here the parties, who were at all times bona fide residents of this state where common-law marriage is invalid, simply took short pleasure trips across the state line without ever intending to contract or contracting a common-law marriage in Colorado as required by its laws.”
We approve the language and adopt the reasoning expressed by the Washington Supreme Court as quoted by the Nebraska Court in Binger’s Estate as follows:
“In State ex rel. Smith v. Superior Court, 23 Wash.2d 357, 161 P.2d 188, 192, the court said:‘We concur in the view of the trial court that where parties cohabit illicitly in the state of their residence and who happen to temporarily sojourn — only a few days in the case at bar — in a state where common law marriage is recognized, even if during those few days they hold themselves out as man and wife, those parties cannot by that conduct alone become legally man ard wife.
‘Parties who live for years in illicit relationship in a state in which they were domiciled will not find themselves married to each other if they happen to sojourn for a short time and hold themselves out as man and wife in a state where common law marriage is recognized.’ ”
There is no evidence in the record that Bonnie and Walker ever contracted a marriage without this state, within the meaning of Ark. Stat. Ann. § 55-110, supra.
The judgment is affirmed.
Byrd, J., concurs.
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ANNABELLE CLINTON Imber, Justice.
This workers’ compensation stice. Petition for Review from an opinion of the Arkansas Court of Appeals. Appellees, Regal Ware and CNA Insurance Co., contend that the Court of Appeals erroneously reversed the decision of the Workers’ Compensation Commission. In Crudup v. Regal Ware, Inc., 69 Ark. App. 206, 11 S.W.2d 567 (2000), the Court of Appeals held that a medical opinion addressing the compensability of Mr. Crudup’s carpal tunnel syndrome satisfied the statutory requirement that such opinions be stated within a reasonable degree of medical certainty. " We disagree and reverse the decision of the Arkansas Court of Appeals. The decision of the Workers’ Compensation Commission is affirmed.
Michael Crudup has been employed by Regal Ware, Inc., since he graduated from high school in 1982. He works on the assembly lines of department 20 where cookware is packaged into boxes. On any given day, employees working on the lines in department 20 may be assigned to any of the four lines in the department. According to testimony, the four lines require substantially the same work, but lines three and four move at a slower pace than the others. The cookware that is packaged in line four is heavier than the other lines. On most days, Mr. Crudup testified that he worked on line one or line two. When working on lines one and two, Mr. Crudup was responsible for placing cardboard diecuts around the pans that came down the assembly line and putting them into boxes with the covers for the pans. Manipulating the diecuts required use of the wrists and knuckles to bend the cardboard into position.
In 1996, Mr. Crudup developed pain in his wrist while working on the lines. Regal Ware referred him to the company doctor, who discovered a ganglion cyst. The company accepted compensability and paid benefits for the surgery to remove the cyst. Mr. Crudup missed no work as a result of the cyst removal, although he was placed on lighter duty following the surgery. After he returned to regular duty, Mr. Crudup noticed renewed difficulty with his wrist, similar to what he had experienced before the surgery.
On April 4, 1997, Mr. Crudup informed his shift supervisor that he was unable to perform his assigned duties because of the swelling and pain in his right wrist, and he sought treatment independently from Dr. Harold Betton. Dr. Betton ordered electrodiagnostic studies that indicated mild carpal tunnel syndrome in Mr. Crudup’s right wrist. Dr. Betton then referred Mr. Crudup to Dr. Michael Moore. After unsuccessful conservative treatment, Dr. Moore performed carpal tunnel release surgery on Mr. Crudup’s wrist on July 2, 1997. Mr. Crudup returned to work on September 9, 1997, and has continued to work for Regal Ware since that time.
Mr. Crudup filed a workers’ compensation claim seeking temporary total disability benefits, medical benefits, and an attorney’s fee. Regal Ware controverted Mr. Crudup’s claim for compensation in its entirety. The administrative law judge denied compensation in an order filed on October 31, 1997, finding that Mr. Crudup failed to prove by a preponderance of the evidence that he suffered a compensable injury in the form of carpal tunnel syndrome while employed by Regal Ware. Mr. Crudup appealed the ALJ’s determination to the Workers’ Compensation Commission, which affirmed the ALJ in an opinion filed on May 15, 1998. In denying compensation, the Commission relied in part on its conclusion that Mr. Crudup failed to prove that his gradual onset injury was caused by rapid and repetitive motion pursuant to Ark. Code Ann. § 11-9-102(5) (A) (ii) (a) (Repl. 1996).
On May 21, 1998, this court held in Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998), that proof of rapid and repetitive motion is not necessary for a finding of compen sability on a claim involving carpal tunnel syndrome. In light of this holding, Mr. Crudup promptly filed a motion for reconsideration of his claim before the Commission. The Commission granted his motion and vacated its May 15, 1998, opinion. Upon reconsideration, the Commission again denied compensation in an opinion filed on March 18, 1999. In its second opinion, the Commission held that Mr. Crudup failed to sustain his burden of proving that his carpal tunnel syndrome constituted (1) an aggravation or recurrence of the 1996 injury, or (2) a new gradual onset injury. Notably, the Commission found that Dr. Moore’s medical opinion addressing compensability was not given within a reasonable degree of medical certainty as required by Ark. Code Ann. § ll-9-102(16)(B) (Repl. 1996). This finding specifically pertained to a letter written by Dr. Moore on April 16, 1997, that contained the following report regarding a causal connection between Mr. Crudup’s work at Regal Ware and his injury:
I had a long discussion with Mr. Crudup regarding his medical condition as it related to work. He reports that he performs work which requires repetitive lifting and gripping. I cannot definitively state that the work he performs at Regal Ware is a primary cause of carpal tunnel syndrome, however, if Mr. Crudup does perform repetitive work, it is likely this activity could precipitate, or aggravate, his symptoms. Finally, if I could review Mr. Crudup’s work requirements, it would be easier to determine if the carpal tunnel syndrome could be related to this work activity.
The Arkansas Court of Appeals reversed the decision of the Commission, holding that it was not supported by substantial evidence. Crudup v. Regal Ware, Inc., 69 Ark. App. 206, 11 S.W.2d 567 (2000). In reaching this conclusion, the Court of Appeals determined that Mr. Crudup sustained a compensable injury arising out of and in the course of his employment and that Dr. Moore’s opinion addressing compensability was stated within a reasonable degree of medical certainty. Regal Ware petitioned this court for review of that determination, arguing that the Court of Appeals erred in holding that Dr. Moore’s opinion was stated with a reasonable degree of medical certainty. In light of our recent decision in Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000), we must agree.
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. Frances v. Gaylord Container Corp., supra; Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997). 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, 981 S.W.2d 91 (1998). Substantial evidence exists if fair-minded persons could reach 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. Frances v. Gaylord Container Corp., supra; McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997). We consider, therefore, if a substantial basis exists for the denial of benefits to Mr. Crudup under the facts presented to the Commission.
Mr. Crudup alleges three alternative theories of compensability regarding his carpal tunnel syndrome. He argues that the injury is either a recurrence of his 1996 compensable injury, an aggravation of the 1996 injury, or a new gradual onset injury. A recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). The only evidence which Mr. Crudup presented concerning a causal connection between the 1996 ganglion cyst injury and the 1997 carpal tunnel syndrome was his own testimony that the two injuries caused pain in the same area of 1 :s wrist and that he had been to see the company nurse and complained about pain in his right wrist several times after the cyst removal surgery in 1996. However, testimony by the company nurse, Brenda Fleming, directly contradicts Mr. Crudup’s testimony. Ms. Fleming testified that she did not recall Mr. Crudup coming to her office after the surgery to talk about his wrist. Furthermore, her files did not contain any documentation of such complaints after the 1996 surgery. It is within the Commission’s sole discretion to determine the credibility of each witness and the weight to be given to their testimony. General Elec. Railcar Repair Servs. v. Hardin, 62 Ark. App. 120, 969 S.W.2d 667 (1998); Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989). We therefore conclude that there is a substantial basis for the Commission’s ruling that Mr. Crudup failed to prove that his condition constituted a recurrence of the prior injury.
Mr. Crudup also contends that his carpal tunnel syndrome is an aggravation of the 1996 injury. An aggravation is a new injury resulting from an independent incident. Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). An aggravation, being a new injury with an independent cause, must meet the requirements for a compensable injury. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998). The Commission found that Mr. Crudup failed to show an independent incident. In the absence of such proof and medical evidence linking Mr. Crudup’s carpal tunnel syndrome with his 1996 ganglion cyst injury, there is a substantial basis for the Commission’s ruling that Mr. Crudup failed to prove that his condition constituted an aggravation of the prior injury.
Finally, Mr. Crudup claims that he is entitled to compensation for a new gradual onset injury. To sustain this claim for compensation, Mr. Crudup is not required to prove that his carpal tunnel syndrome was caused by rapid and repetitive motion, but he must prove by a preponderance of the evidence that: (1) the injury arose out of and in the course of his employment; (2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death; and (3) the injury was a major cause of the disability or need for treatment. Ark. Code Ann. § U-9-102(5)(A)(ii) & (E)(ii) (Repl. 1996). Steveson v. Frolic Footwear, 70 Ark. App. 383, 20 S.W.3d 413 (2000); Kildow v. Baldwin Piano & Organ, supra. Finally, a compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(5) (D) (Repl. 1996); Kildow v. Baldwin Piano & Organ, supra.
In denying benefits, the Commission found that Mr. Crudup failed to prove that his injury was the major cause of his disability or need for treatment as required by Ark. Code Ann. § ll-9-102(5)(E)(ii) (Repl. 1996). We agree with the Court of Appeals that this finding was erroneous. Based upon the uncontroverted evidence in this case, Mr. Crudup’s injury, i.e., carpal tunnel syndrome, was the major cause of his need for treatment and release surgery and his resulting disability.
However, in addition to satisfying the “major cause” requirement, Mr. Crudup must prove a causal connection between his employment and the injury. Kildow v. Baldwin Piano & Organ, supra. Regal Ware argues that Mr. Crudup failed to prove by a preponderance of the evidence that his carpal tunnel syndrome was work-related, and that, as such, the decision of the Commission is supported by substantial evidence. We agree.
The only evidence that Mr. Crudup presénted to the Commission to support a causal relationship between his work and his carpal tunnel syndrome was the April 16, 1997, letter written .by his physician, Dr. Moore, which stated:
I cannot definitively state that the work he performs at Regal Ware is a primary cause of carpal tunnel syndrome, however, if Mr. Crudup does perform repetitive work, it is likely this activity could precipitate, or aggravate, his symptoms. Finally, if I could review Mr. Crudup’s work requirements, it would be easier to determine if the carpal tunnel syndrome could be related to this work activity.
(Emphasis added.) Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § ll-9-102(16)(B) (Repl. 1996). In Frances v. Gaylord Container Corp., we held that “expert opinions based upon ‘could,’ ‘may,’ or ‘possibly’ lack the definiteness required to meet the claimant’s burden to prove causation pursuant to § ll-9-102(16)(B).” 341 Ark. at 533, 20 S.W.3d at 284.
Dr. Moore’s medical opinion, like that which we rejected in Frances v. Gaylord Container, supra, is nothing more than a statement of theoretical possibility. He states only that Mr. Crudup’s working conditions could have caused his symptoms. We must therefore conclude that Dr. Moore’s opinion lacks the requisite definiteness required by § ll-9-102(16)(B). In fact, Dr. Moore’s statement that a review of Mr. Crudup’s work requirements would make it easier “to determine if the carpal tunnel syndrome could be related to this work activity” indicates that he had not yet formed an opinion regarding a causal connection. Despite the fact that Regal Ware provided Dr. Moore with a description of Mr. Crudup’s work activities, the record does not demonstrate that any more definite opinion was ever given by Dr. Moore. Consequently, we hold that Dr. Moore’s medical opinion was insufficient to support a finding of compensability.
The record in this case reflects no other evidence establishing a causal relationship between Mr. Crudup’s employment and his carpal tunnel syndrome. Although it was undisputed that his employment requires quick hand and wrist movements throughout the day, such evidence by itself was not sufficient to establish that his carpal tunnel syndrome condition was caused by his work. Likewise, because the burden of proof remained with Mr. Crudup, Regal Ware was not required to introduce evidence establishing that his carpal tunnel syndrome was not work-related. Under these circumstances, we hold that the Commission’s decision displays a substantial basis for the denial of benefits^ Accordingly, we reverse the Court of Appeals and affirm the decision of the Workers’ Compensation Commission.
Affirmed.
Glaze, J., not participating. | [
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PER CURIAM.
On March 22, 2000, the Arkansas Court of IAM. denied motions for attorneys’ fees in the captioned cases. Between April 3, 2000, and April 7, 2000, motions for reconsideration were filed in the Court of Appeals by several state-salaried public defenders. On May 2, 2000, the Court of Appeals certified the motions for reconsideration to this court pursuant to Ark. Sup. Ct. R. l-2(b)(4)-(5) and (d)(2). We accepted certification, and, for the reasons stated below, we must deny the motions for reconsideration.
In Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), we held that the public defender statutes and the Regular Salary Procedures and Restrictions Act prohibit this court from compensating state-salaried public defenders for work done on appeal. Counsel in the above-styled actions, all of whom are state-salaried public defenders, urge this court to reconsider its application of Rushing to their circumstances and grant compensation for appellate work in the above cases. Counsel, in their separate motions, urge three primary reasons for distinguishing Rushing. First, counsel argue that Rushing should not apply to the work for which they seek compensation because they are all part-time, trial public defenders. Second, they argue that Rushing should only be applied prospectively to cases which were not pending when it was handed down. Finally, counsel argue that the funds awarded by this court would not be used to compensate public defenders as in Rushing, but rather would be used to pay “ghost writers” or to compensate counsel for time and resources taken from their private practice. Although we regret that counsel may be caused some hardship by this court’s rulings, we cannot, consistently with the governing statutes, grant their motions for reconsideration.
As counsel asserts, we denied compensation for appellate work in Rushing v. State to a full-time, state-salaried public defender. Therefore, counsel argue that Rushing does not apply to part-time public defenders. We disagree. Certainly, public-defender positions may be either full-time or part-time. Ark. Code Ann. § 16-87-304(c) (Supp. 1999). However, we did not distinguish between part-time and full-time public defenders in Rushing v. State, supra. Nor did we limit our holding to only full-time public defenders. Rather, we held that state-salaried public defenders were not eligible for additional compensation by this court for work done on appeal. Rushing v. State, supra. It is true that a part-time public defender is authorized to engage in the general practice of law. Ark. Code Ann. § 16-87-304(c) (Supp. 1999). However, the General Assembly did not distinguish between full-time and part-time public defenders when it made the salaries of public defenders subject to the state pay plan. Ark. Code Ann. § 16-87-305 (Supp. 1999). For that reason, both full-time and part-time public defenders are subject to the restrictions of the Regular Salary Procedures and Restrictions Act, codified at Ark. Code Ann. § 19-4-1601 et seq. It is this restriction which causes us to deny counsels’ motions for attorneys’ fees:
No employee authorized by the General Assembly shall receive from appropriated or cash funds, either from state, federal, or other sources, compensation in an amount greater than that established by the General Assembly as the maximum annual salary for the employee unless specific provisions are made therefore by law.
Ark. Code Ann. § 19-4-1601(b)(3)(C) (Repl. 1998). The statute further states that:
no person drawing a salary or other compensation from one (1) state agency shall be paid salary or compensation, other than actual expenses, from any other agency except upon written certification to and approval by the Chief Fiscal Officer of the State and by the head of each agency, stating that: (1) the work performed for the other agency does not interfere with the proper and required performance of the person’s duties; and (2) combined salary payments from the agencies do not exceed the larger maximum annual salary of the line-item position authorized for either agency from which the employee is being paid.
Ark. Code Ann. § 19-4-1604 (Repl. 1998).
Specific provision has been made by law allowing part-time public defenders to engage in the general practice of law, and therefore receive compensation in addition to their state salaries for such work. Ark. Code Ann. § 16-87-304(c) (Supp. 1999). However, there is no specific provision allowing public defenders, whether part-time or full-time, to receive additional compensation from this court or any other state agency for work done in the performance of their duties as public defenders. Counsels’ argument that because they are authorized to receive additional compensation for work as private counsel they may also receive compensation from this court is without merit. Without specific authorization to the contrary, we cannot compensate state-salaried public defenders, either full-time or part-time, for work done in that capacity on appeal. See Rushing v. State, supra.
Counsel next argue that Rushing should be applied only prospectively, allowing compensation for appellate work performed by public defenders prior to that decision. They argue that we created a new rule in Rushing that cannot be applied retroactively to prevent compensation for work done in the above cases. Counsels’ argument is in error. It is true that prior to our decision in Rushing, we compensated public defenders for work done on appeal just as we compensated private counsel appointed to represent indigent criminal appellants under Ark. Sup. Ct. R. 6-6. Following Rushing, we no longer do so. However, we did not create a new rule in Rushing. The change in this court’s practice is the result of statute. The Regular Salary Procedures and Restrictions Act was in full force and effect at the time the appeals at issue were filed with this court. We are not applying it retroactively. Although counsel point this court to instances where we have applied new rules or changes in the rules only prospectively in order to prevent the working of a hardship following our decisions, those cases involved the application of common-law principles or rules promulgated by this court. See, e.g., Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997); Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996); Wiles v. Webb, 329 Ark. 108, 946 S.W.2d 685 (1997). In this instance, we are faced with a duly enacted statute that prohibits the action sought by counsel. We cannot ignore the statute governing this matter. We must apply its provisions where applicable even if those cases arose prior to our decision in Rushing. The Regular Salary Procedures and Restrictions Act, in conjunction with the public defender statutes, is the law in this matter that prevents the compensation sought by counsel. It is being applied prospectively.
Finally, counsel argue that their motions for attorneys’ fees should be granted in these matters because the public defenders will not actually receive the compensation. They assert that individuals, variously described as “law clerks,” “briefing assistants,” or “ghost writers,” actually performed the appellate work at issue and will be given all of the compensation awarded by this court. The difficulty with this argument is that the court is not asked to compensate these “ghost writers.” Rather, we are asked to compensate the public defenders. What they do with that compensation once they receive it is not relevant under the statutes as we interpret them. The statute reads “No employee . . . shall receive . . . compensation. . . .” Ark. Code Ann. § 19-4-1601(b)(3)(C). Arkansas Code Annotated section 19-4-1604 (Repl. 1998) prohibits this court, as an agency of the state, from paying compensation to the public defenders in the absence of the conditions therein specified.
Nor is it persuasive that counsel at times diverted resources and time from their private practices in order to work on these appeals. The counsel before this court are not here as private counsel. They were appointed to represent indigent criminal defendants in their capacities as public defenders. The fact that these part-time public defenders also engage in private practice does not change the fact that they were acting in their capacities as state-salaried public defenders in the cases at issue. Consequently, they are governed by the public defender statutes and the Regular Salary Procedures and Restrictions Act. Ark. Code Ann. § 16-87-201 et seq. and § 19-4-1601 et seq.
The motions for reconsideration of motions for attorneys’ fees are denied.
We do not attempt to interpret Ark. Code Ann. § 19-4-1604 (Repl. 1998) at this time except to note that there is no evidence that the requirements for receiving compensation from two state agencies have been met in the cases at issue. | [
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W.H. “DUB” Arnold, Chief Justice.
Appellant, Randy ustice. challenging a decision of the Workers’ Compensation Commission denying his claim for medical expenses and additional temporary total-disability benefits. In a published opinion dated January 26, 2000, the Court of Appeals reversed and remanded the Commission’s decision. See Davis v. Old Dominion Freight Line, Inc., 69 Ark. App. 74, 13 S.W.3d 171 (2000). Pursuant to Ark. Sup. Ct. R. 2-4 (2000), we granted review of the appellate court’s decision. We affirm the Court of Appeals, and we reverse and remand the Commission’s decision because it fails to display a substantial basis for the denial of relief.
Background
The parties agree that on April 4, 1996, Davis sustained a compensable right-ankle injury while working for appellee, Old Dominion Freight Line, Inc. On September 11, 1996, Dr. Jay Lipke performed a surgical repair of a partial dislocation of Davis’s peroneal tendons. Subsequently, Dr. Lipke diagnosed Davis with a blood clot, which required hospitalization and anticoagulant medication. As of November 1, 1996, Dr. Lipke’s notes indicated that Davis’s wound was well-healed, his ankle demonstrated a good range of motion, and there was no evidence of subluxation of the tendon. Dr. Lipke also remarked that he anticipated that Davis would be released to return to work when the blood-clot condition stabilized.
Unfortunately, on approximately November 13, 1996, Davis aggravated the surgical repair when he stepped awkwardly on his ankle to avoid stepping on his two-year-old niece. At the time of the incident, Davis heard a loud pop. He returned to Dr. Lipke, who treated the new injury as a sprain. However, Dr. Lipke noted on December 2, 1996, and December 9, 1996, that the incident disrupted the prior surgical repair because Davis’s healing process was incomplete.
As a result of the November injury, Davis sought additional workers’ compensation benefits. In response, Old Dominion asserted that the November 1996, incident constituted an independent intervening cause, barring an award of additional benefits. Following a hearing, the Administrative Law Judge agreed with Old Dominion and concluded that Davis had failed to prove entitlement to additional benefits. Davis appealed the ALJ’s decision to the Workers’ Compensation Commission, which affirmed and adopted the ALJ’s findings.
Following the Commission’s decision affirming the ALJ’s denial, Davis 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 because it had applied the wrong legal standard to determine whether the November 1996 incident constituted an independent intervening cause. Significantly, the appellate court concluded that although the legislature expressed an intent, via Act 796 of 1993, to overrule “all prior opinions or decisions of any administrative law judge, the Workers’ Compensation Commission, or courts of this state contrary to or in conflict with any provision of this act,” that (1) that declaration was not a blanket repeal of all prior decisions on the subject of independent intervening causes, and (2) preexisting case law regarding independent intervening causes remains in force for new act cases.
In support of its decision reversing the Commission, the Court of Appeals cited with approval its prior decisions in Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998) (holding that new act has not changed the relevant analysis of independent-intervening-cause cases), and Guidry v. J. & R Eads Constr. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984) (decision under prior act finding that claimant’s activity triggering subsequent complication must be “unreasonable under the circumstances” to be an independent intervening cause).
From the appellate court’s decision reversing and remanding the Commission, comes the instant appeal. In their petition for review from the Court of Appeals’ decision, appellees and the Arkansas Self Insurers Association, as amicus curiae, argue that (1) Act 796 unambiguously declared the legislature’s intent to repeal all prior opinions, decisions, and case law in conflict with the new act, (2) the appellate court’s reliance on Carter and Guidry was misplaced, and (3) Ark. Code Ann. section 11 — 9—102(5)(F) (iii) (Repl. 1996), specifically controls the proper disposition of the instant case and dictates denial of additional benefits. In response, Davis argues that the. legislature merely intended to repeal all prior inconsistent case law.
I. Substantial evidence
Appellant’s first point on appeal challenges the sufficiency of the evidence supporting the Commission’s decision denying him additional benefits on the basis that his November 1996 accident was an independent intervening cause. 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)). Moreover, 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. 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, as here, the Commission denies benefits because it determines that 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).
Here, the parties agree that Davis sustained a compensable ankle injury in April of 1996. Following his surgery in September of 1996 and treatment for a blood clot in November of 1996, Davis testified that his doctor informed him that once the blood-clot treatment stabilized, he could return to work within approximately two to four weeks from November 1. Consistent with that testimony, Dr. Lipke’s November 1, 1996, report states that Davis’s wound was “well healed” and that Davis demonstrated “good range of motion” with “no evidence of subluxation of the tendon.” Dr. Lipke’s report also confirmed that although Davis would remain temporarily totally disabled until his next scheduled appointment in one month, once his blood-clot anticoagulant therapy was well stabilized, Davis could probably return to work, “in the next two to four weeks.” According to Davis, Old Dominion continued to pay him workers’ compensation benefits for four weeks following the November 1 doctor’s appointment, representing the projected healing period as indicated by Dr. Lipke.
Davis also admitted that he sustained a nonwork-related injury to the same anide a few days before November 13, 1996. Davis then sought treatment from Dr. Lipke. According to his November 13, 1996, report, Dr. Lipke remarked that Davis “was doing well until the other day when his two-year-old niece snuck behind him and twisted his right ankle. There was a loud pop evident. He’s had significant swelling since that time.” Given that Davis acknowl edged that the subsequent injury was nonwork related, we must decide whether the Commission applied the correct legal standard to determine whether that injury constituted an independent intervening cause. Therefore, we address the merits of appellant’s second point on appeal in order to resolve the first.
II. Section H-9-I02(5)(F)(iii)
The heart of the instant appeal concerns the interpretation of the legal standard of review set forth in Ark. Code Ann. section 11 — 9—102(5)(F)(iii) (Repl. 1996), now codified as section 11-9-102(4)(F)(iii) (Supp. 1999). Section U-9-102(5)(F)(iii) states that:
Under this subdivision (5)(F), benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant.
(Emphasis added.) Significantly, when the construction of a statute is at issue, we will presume that the General Assembly, in enacting it, possessed the full knowledge of the constitutional scope of its powers, full knowledge of prior legislation on the same subject, and full knowledge of judicial decisions under preexisting law. McLeod, Comm’r of Revenues v. Santa Fe Trail Transp. Co., 205 Ark. 225, 168 S.W.2d 413 (1943). We must also give effect to the legislature’s intent, making use of common sense and giving words their usual and ordinary meaning. Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993).
Although the parties agree that the November 1996 injury was caused by a nonwork-related event, they disagree as to whether the incident was an independent intervening cause. In support of the Commission’s decision, appellees refer to the history of the independent-intervening-cause doctrine. In 1984, the Court of Appeals adopted the principle that if there is a causal connection between a primary compensable injury and the subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity of the claimant that is “unreasonable under the circumstances.” Guidry v. J. & R. Eads Constr. Co., 11 Ark. App. 219, 223, 669 S.W.2d 483, 485 (1984) (citations omitted).
Subsequently, the legislature enacted Act 796 of 1993, with the purpose of annulling pre-1993 Commission and court decisions interpreting and applying the pre-1993 act. Appellees also note that prior to Act 796 of 1993, the workers’ compensation laws did not address the term “independent intervening cause.” Therefore, according to appellees, Act 796 was an unambiguous rejection of all prior case law, including Guidry. Since Davis’s injuries occurred after the effective date of Act 796, appellees assert that the Commission applied the correct legal standard.
In response, Davis argues that this interpretation of section 11-9-102(5)(F)(iii) makes any analysis illusory because all nonworkrelated incidents that prolong disability or need for treatment would automatically be deemed independent intervening causes as a matter oflaw. Further, Davis contends that section 11-9-102(5) (F)(iii) is actually a codification of preexisting case law and, specifically, the Guidry test. We agree. In Guidry, the appellate court held that:
... — not only can there be an independent intervening cause without negligence or recklessness on the claimant’s part, but unreasonable conduct on a claimant’s part may create an independent intervening cause which would otherwise not exist.
(Emphasis added.) Guidry, 11 Ark. App. at 224, 669 S.W.2d at 486. Similarly, the legislature expressed in section 11-9-102(5) (F) (iii) that:
... a nonwork-related independent intervening cause does not require negligence or recklessness on the part of the claimant.
The statutory language at issue tracks the language in Guidry but leaves the standard of unreasonableness intact.
Moreover, we must assume that the legislature was aware of Guidry when it enacted section 11-9-102(5) (F) (iii), and of Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998), when it recently enacted amendments to the Workers’ Compensation Act in 1999. The legislature simply elected not to change existing law regarding independent intervening causes. In the absence of a statutory definition of independent intervening cause, we conclude that the legislature adopted the legal standard established and applied in prior Commission decisions and case law.
In conclusion, we hold that the Commission’s decision failed to display a substantial basis for the denial of relief because it failed to apply the correct legal standard to determine whether appellant’s November 1996 accident constituted an independent intervening cause. Accordingly, we reverse the Commission’s decision and remand for further action consistent with this opinion.
Glaze and Smith, JJ., dissenting. | [
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