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George Rose Smith, J.
This is a suit by the appellants, the four children of W. H. Laney, to quiet their title to a tract of about seventy acres lying near the south edge of the city of Little Bock. They claim title (a) under two tax deeds which their father obtained from the state in 1941 and 1944 and (b) by adverse possession. The appellees, Arkansas Beal Estate Company, Inc., and Arkansas Warehouse Corporation, rely upon quitclaim deeds by which they acquired the record title to the land in 1956 and 1957. The chancellor found the tax deeds to be invalid, for want of a good description, and held that the appellants had proven title by adverse possession only to the north seven acres of the tract. In appealing from that decree the appellants insist that they established good title to the entire tract.
The tract is a rectangle, about a half mile by a quarter mile in size, with its longer direction running north and south. A railroad right-of-way runs along the northern boundary and cuts off the northwest corner of the rectangle.
The chancellor’s finding that the appellants have acquired title to the north seven acres is amply sup ported by tbe proof and has not been challenged by cross appeal. This part of the land was occupied by tenants of the Laneys for more than ten years, beginning in about 1944. The principal tenant, Bell, lived in a small house on this parcel from about 1945 until his death in 1952. Bell and his successors raised cotton and vegetables during the years of their occupancy. The proof shows that this north seven acres was completely enclosed, the fence along its southern boundary being an interior cross fence that divided the entire seventy-acre tract into two parts.
In this court the dispute concerns the southern part of the tract. The appellants’ father, W. H. Laney, kept cattle and horses on this part of the land, though perhaps not continuously, from about 1944 until his death in 1951. Small scattered fields were cultivated from time to time, but not for a continuous period of seven years. The chancellor evidently concluded that the land now in controversy had not been physically occupied, in its entirety, by the Laneys and their tenants for a sufficient length of time to vest title by adverse possession.
We think the chancellor overlooked the fact that, according to the decided weight of the evidence, the parcel now in question was continuously enclosed by fences from about 1943 until about 1953. When this enclosure of the land is considered along with the acts of dominion exerted by the Laneys and their tenants all the elements of adverse possession are established.
Several of the Laneys’ former tenants and employees testified in the case. Frank Hardester worked for W. H. Laney for several years. In 1942 or 1943 he helped build the west fence which, together with the older fences, completed the enclosure of the land. After the west fence was built Hardester helped repair the south fence. He testified positively that the entire tract was thereafter completely enclosed by substantial three-wire fences until he left the neighborhood in 1950. One of the appellants, William R. Laney, said that to his knowledge fences were maintained for several years prior to 1949. His brother, Walter Laney, inspected the tract in 1950 and testified that the land was then completely enclosed. H. W. Brown was familiar with the land from 1951 until 1955 and rented it for part of that time. He said that the land was fenced on all sides until he removed the south fence, apparently in 1953, to provide access to other land that he was renting just south of this tract. There was much other testimony relating specifically to various fences along the four sides of the tract, but we need not detail this proof.
The appellants’ abundant testimony is convincingly corroborated by disinterested surveyors whose business it was to know the facts. In 1953 the owners of the Durst land, which adjoined the Laney tract on the east, had their land surveyed by a civil engineer. The ensuing plat showed the greater part of the Laneys’ east fence, and the surveyor testified that he walked along their south fence after finding his point of beginning at the southwest corner of their land. Another independent survey, prepared for the highway department in 1958, showed both the east fence and the west fence on the Laney land. Still a third surveyor, employed by the appellants to prepare a plat to be used at the trial, found portions of the east and west fences in 1959, although by then the wire was badly in disrepair.
The appellees’ proof falls distinctly short of overcoming the strong case presented by the appellants. The appellees’ principal witness was Robert M. Traylor, who, we infer, owns the controlling interest in the two appellee companies. Traylor had known the land since 1943, but prior to 1956 his concern with the property was necessarily casual, for he is not shown to have lived nearby and he did not acquire any interest in the land until 1956. He testified that the land was not fenced during the pivotal decade following 1943. His testimony is contradicted by many witnesses who were more familiar with the land than he was and by the strong evidence given by the various surveyors. In like manner the other testimony adduced on behalf of the ap pellees is insufficient to rebut the appellants’ positive showing of adverse possession for more than seven years.
The decree is reversed and the cause remanded for the entry of a decree quieting title in the appellants and for further proceedings with respect to a sewer line easement claimed by the city of Little Rock. | [
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Carleton Harris, Chief Justice.
The sole question in this litigation is whether appellee is amenable to service under the provisions of Section 27-340, Ark. Stats. (1947), or to state it differently, did the Columbia County Circuit Court acquire jurisdiction over Marco Chemical Company, a foreign corporation, by virtue of service obtained under the authority of that section. Section 27-340 provides as follows:
“Any non-resident person, firm, partnership, general or limited, or any corporation not qualified under the Constitution, and laws of this State as to doing business herein, who shall do any business or perform any character of work or service in this State shall, by the doing of such business or the performing of such work, or services, be deemed to have appointed the Secretary of State, or his successor or successors in office, to be the true and lawful attorney or agent of such non-resident, upon whom process may be served in any action accrued or accruing from the doing of such business, or the perform ing of such work, or service, or as an incident thereto by any such non-resident, or his, its or their agent, servant or employee. Service of such process shall be made by serving a copy of the process on the said Secretary of State, and such service shall be sufficient service upon the said non-resident of the State of Arkansas, provided that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff, or his attorney, to the defendant at his last known address, and the defendant’s written return receipt, or the affidavit of the plaintiff, or his attorney, of compliance herewith are appended to the writ or process and entered in the office of the Clerk of the court wherein said cause is brought. # * * 3?
Appellants, engaged in poultry raising and egg producing, instituted suit against appellee, alleging, inter alia:
‘ ‘ That each of the undersigned obtained from Ark-La Feed and Fertilizer Company of Magnolia, Arkansas, by purchase of otherwise, during the period from January 30, 1958, to about June 1, 1958, poultry feed containing a substance manufactured and sold by the defendant to the said Ark-La, and known as Marcol B-75; that said Mar-col B-75 was a vegetable oil fat sold and delivered by the defendant to the said Ark-La for the purpose of mixing the same with other ingredients into poultry feed; that the said Ark-La used, combined and incorporated Marcol B-75 in the same form in which it was received from and delivered by defendant with other ingredients in the manufacture of its poultry feed in the manner recommended by the defendant.
That upon consuming feed containing said Marcol B-75, sold and delivered by defendant to Ark-La on and after January 28, 1958, poultry belonging to plaintiffs became sick in large numbers; that said sickness was identified as ‘Disease X’ or ‘Water Belly’; * * * that large numbers of poultry died, that large numbers were condemned as unfit for human consumption by the United States Department of Agriculture inspectors; that large numbers were otherwise affected so as to cause great loss of weight and productivity as layers or breeders.
Plaintiffs are informed and believe, and upon such information and belief, allege that said Mareol B-75 contained a dangerous and deleterious substance or injurious element at the time it was sold and delivered by defendant, so that it was not fit to be combined with other ingredients in poultry feed, * * *.
* * * as a result of eating the feed above described, large numbers of poultry belonging to plaintiffs died and that such deaths resulted from poison contained in the feed delivered to these plaintiffs by Ark-La; that such feed was poisonous in that it contained foreign and deleterious substances which were in the fat furnished Ark-La by the defendant, Marco Chemical Company; * * # > J
Various counts of alleged negligence on the part of appellee were recited in the complaint, and appellants sought judgment in the amount of $9,950.63. Service was had upon the Secretary of State as agent for service of Marco Chemical Company, and appellee was notified as provided in Section 27-340. Thereafter, the Company filed its motion to quash the process issued, and to dismiss the complaint, for the reason that it was a foreign corporation, and had not been authorized to transact business intrastate in Arkansas, and had not designated an agent within the State upon whom process could be served.
“At no time material hereto, has it done any business or performed any character of work or services in the State of Arkansas, nor is it now doing so. * * *
The said Secretary of State is not now and never has been an agent of this defendant upon whom process may be served for it. This Court does not have jurisdiction over the person of this defendant and cannot obtain such jurisdiction by virtue of the purported service as aforesaid. * * *
Assumption by this Court of jurisdiction over the person of the defendant Marco Chemical Company by virtue of the summons issued herein and the purported service thereof as alleged in paragraphs 2 and 3 hereof would be to deny said defendant due process of law in violation of the Fourteenth Amendment to the Constitution of the United States and would violate Article VIII, Sec. 3, of the Constitution of the United States, giving to the Congress of the United States the power to regulate the commerce among the several states.”
On hearing, the court held that the motion to quash should be sustained, and upon appellants’ announcing that they elected to stand upon the service of process had, the court dismissed the complaint. From the judgment so entered, appellants bring this appeal.
According to a stipulation entered into between the parties, appellee, Marco Chemical Company, is a foreign corporation, organized and existing under the laws of the state of Texas. It has not qualified to transact business in Arkansas. The company is principally engaged in selling animal feeds and ingredients therefor, and does not now have, nor has it ever had or maintained in the state of Arkansas any office, warehouse, or place of business whatsoever. Nor has it ever maintained within this state any physical facilities or any stock or merchandise. The company has no bank account within this state, and no salesmen or representatives who reside in Arkansas. Dealings with Ark-La Feed & Fertilizer Company have been handled, according to the stipulation, in the following manner:
‘ Orders for its products from Ark-La Feed & Fertilizer Company were either sent by mail addressed to it at its office in Fort Worth, Texas, or were telephoned to it at its said office in Fort Worth. After the order was accepted the sales confirmation was mailed by defendant from Ft. Worth, Texas, to Ark-La Feed & Fertilizer Company in Magnolia, Arkansas. Prices on products other than B-75 were quoted on a basis of delivered Magnolia. The price of B-75 was FOB Fort Worth. Payment was accomplished either by the drawing and depositing of a draft in Ft. Worth, Texas, by appellee on Ark-La Feed & Fertilizer, or as an alternative, Ark-La Feed & Fertilizer Company usually mailed to Marco at Ft. 'Worth, its check in payment of its account. Delivery was accomplished by appellee’s own trucks and drivers, but the drivers did not make any collections for Marco, nor receive for appellee the purchase price for merchandise delivered, or any part thereof, nor did they have any authority to do so. All deliveries were made from Fort Worth, Texas, to Ark-La at Magnolia, Arkansas. * * *
(2)
It was customary for the driver of the appellee’s truck to unload B-75 by means of a pump which was driven by the truck engine so that the product was pumped through a hose or pipes into the receiving tanks of Ark-La Feed & Fertilizer Company.
(3)
At all material times appellee has had business relations with customers in Fayetteville, Springdale, Fort Smith, Rogers, Little Rock, Blytheville, Chatfield, and Hughes, all in Arkansas, and all of which were handled and accomplished in the same manner as its dealing with Ark-La Feed & Fertilizer Company as set out above.
(4)
Appellee mailed from its office in Fort Worth, Texas, to Ark-La Feed & Fertilizer Company a copy of a drawing showing a proposed layout of pipes and tanks for receiving B-75.
(5)
Appellee solicited Ark-La Feed & Fertilizer Company to buy B-75 by mail, telephone, and in person, but no orders were taken by appellee at Magnolia, Arkansas. Appellee furnished Ark-La with literature designed to show the merits of B-75, which literature was published by institutions or representatives of institutions not connected with appellee. This solicitation was in 1956 because of the first delivery of B-75 to Ark-La Feed & Fertilizer Company was on January 28, 1957. Subse quent to January, 1957, a representative of appellee called upon Ark-La Feed & Fertilizer Company on several occasions in the interest of good will and good customer relations. No orders were taken on any of these visits.’’
Appellee vigorously contends that everything done was in interstate commerce; that its activities do not subject it to service of process as provided in Section 27-340, and, in support of the position taken, relies mainly upon our holding in Rodgers v. Howard, Judge, 215 Ark. 43, 219 S. W. 2d 240, the opinion being delivered on April 4, 1949. As a matter of background (which we deem essential to a proper understanding of the issue involved), it should first be pointed out that the United States Supreme Court in International Shoe Company v. State of Washington, et al, 326 U. S. 310, on December 3, 1945, held that a course of activity consisting merely of the solicitation of business, admittedly less than the “doing of business”, subjected the acting foreign corporation to personal jurisdiction based upon constructive service. In 1947, the Arkansas General Assembly passed Act 347 (which includes the language of Section 27-340, heretofore mentioned). Dr. Robert. A. Leñar, Distinguished Professor of Law, then Dean of the University of Arkansas School of Law, in an article appearing in 3 Arkansas Law Review, p. 18, wrote:
“The United States Supreme Court recently held that a course of activity consisting merely of the solicitation of business, which was admittedly less than the ‘doing of business’, in Washington enabled that state to subject the acting foreign corporation to personal jurisdiction based on constructive service. The Arkansas General Assembly may have been motivated by that decision in the enactment of Act 347 of 1947, providing that ‘any non-resident person, firm, partnership ... or any corporation not qualified . . . as to doing business herein, who shall do any business or perform any character of work or service in this State shall (be subject to constructive service) in any action . . . accruing from the doing of such business, or the perform ing of such work, or service. . . .’ The application of this statute was in question in a recent Federal case arising in Arkansas, and it was interpreted as not covering a cause of action arising out of a contract for an agent to solicit business in Arkansas, when the making of the agency contract and the solicitation thereunder were the corporation’s only activities in Arkansas. This interpretation was on the express theory that the statute would be unconstitutional if interpreted to apply to the facts currently involved, since they did not amount to doing business’ in the state. The Washington case was not cited. It is at least possible that a broader interpretation of Act 347, by the state courts, would not only be borne out by the wording of the Act but would, on the authority of the Washington case, be sustained as to its constitutionality by the United States Supreme Court.” In April of 1949, the Rodgers case was decided. Rodgers contended that Campbell Soup Company was amenable to service of process under Act 347, and the Court, noting that the contention posed the difficult question as to the applicability of the rule announced in the International Shoe Company case, said:
“Assuming, but not deciding, that this evidence is properly before us, and that this is the appropriate method for presenting the issue, the transcript reflects that a traveling salesman of the Campbell Soup Company solicited orders from the Stuart Grocery Company in Nashville, Arkansas; that such orders were forwarded by the salesman to the home office of the Campbell Soup Company in New Jersey for acceptance or rejection; that sometimes the Stuart Grocery Company sent its orders direct by mail to the Campbell Soup Company in New Jersey; that upon acceptance of any order by the Campbell Company at its home office in New Jersey (whether the order was obtained by the salesman or sent direct by mail as aforesaid), the shipment from the Campbell Soup Company to the Stuart Grocery Company was packed, marked, and duly identified as for that party, and placed in a railroad carload shipment containing goods for distribution to other purchasers in the Nashville freight territory; that the entire carload moved by rail from New Jersey to the Hunter Transfer Company at Texarkana, Arkansas; that this last-mentioned concern opened the car and then sent to the Stuart Grocery Company its shipment and likewise sent other purchasers their shipments from the said railroad car. In short, the Hunter Transfer Company broke the shipment to less-than-carload lots — all of which was evidently a freight saving device. Stuart Grocery Company paid direct to Campbéll Soup Company in New Jersey.
Because of the activities of the Hunter Transfer Company in Texarkana, Arkansas, petitioner claims that the Campbell Soup Company was doing business in Arkansas, and therefore capable of being brought into the Arkansas courts by service of process on the Secretary of State under Act 347 of 1947, or service on the State Auditor under § 2250, Pope’s Digest. The case of Crawford v. Louisville Silo & Tank Co., 166 Ark. 88, 265 S. W. 355, and Citizens Union National Bank v. Thweatt, 166 Ark. 269, S. W. 955, are authority for our holding against petitioner’s contention. In those cited cases, just as here, a non-domesticated foreign corporation accumulated several shipments into one carload shipment to an Arkansas point, where an agent of such corporation distributed the individual shipments to the various purchasers; and we held that such shipments were interstate commerce and did not constitute ‘doing business’ in Arkansas by the foreign corporation within the purview of our statutes.
* * * Petitioner claims that Act 347 of 1947 changed the rules of law announced in the Crawford-Louisville and Citizens Bank-Thweatt cases, supra, and petitioner urges that the said Act allows the Campbell Company to be sued in a case such as this one, since (1) Hunter Transfer Company was the agent of the Campbell Company to break and subdivide the carload shipment, and (2) such act by the Hunter Transfer Company was done and performed in the State of Arkansas.
* * * We pass this question as one of the unnecessary speculation. Whether the Legislature could validly enact such legislation is not for us to decide at this time. We hold that Act 347 of 1947 was not intended to change the rule concerning the breaking of the journey of interstate shipments as announced in the cases of Crawford v. Louisville Silo & Tank Co. and Citizens Bank v. Thweatt, supra. Until such a change of the rule in these cases be attempted by the Legislature, we need not speculate on its constitutionality.”
Less than three months later, this Court, in Chapman Chemical Co. v. Taylor, et al, 215 Ark. 630, 222 S. W. 2d 820, held that service on appellant, a foreign corporation, under the provisions of Act 347, was valid. There, as here, the foreign corporation argued that it had done no business in this state sufficient to bring it within the provisions of the Act. The facts, as set forth in the opinion, showed that the company sought to introduce the use of 2-4-D in the rice growing area of the state, and to that end, its representatives came into the state and conferred with officers of the Bice Growers Association. A test was made in this state to demonstrate that 2-4-D dust could be distributed from an airplane. From the opinion:
‘ ‘ Chapman brought with him in his automobile from Memphis to Stuttgart in this State a quantiy of the powder or dust, for the purpose of making the test, and he paid the aviator for his services in making it. Chapman had cooperated with state experimental stations in this State in working out projects for the development of uses for the products sold by the Chemical Co. That Company provided literature containing instructions for the use of 2-4-D to local distributors in this State, to be given to prospective users of the Chemical Co. products. It joined Arkansas local distributors in advertising Chemical Co. products in this State, and arranged for the advertisement thereof in a local paper, one-half of the costs of which it paid and finally it brought a suit, now pending against the Elms Co. for the purchase price of the dust the distribution of which by plane gave rise to this law suit.
The case of Frene v. Louisville Cement Co., 77 U. S. App. D. C. 129, 134 F. 2d 511, 146 A. L. R. 926, deals at length and reviews many authorities on the concept of doing business by a foreign corporation. The opinion was written by Justice. Rutledge then an Associate Justice of the U. S. Court of. Appeals for the District of Columbia, now a member of tbe Supreme Court of the United States. It was there said that the mere solicitation of business whether on a casual or occasional or regular, continuous and, long continued basis does not constitute doing business in-.a foreign state, and it may be added that filling orders, thus obtained by shipping goods in interstate comhiercé would not constitute doing business. But it was said in addition, ‘ Consequently it is (not) clear that if, in addition to a regular course of solicitation, other business activities are carried on, such as maintaining a warehouse, making deliveries, etc., the corporation is “present” for jurisdictional purposes. And very little more than “mere solicitation” is required to bring about this result.’
The facts herein recited constitute something more than the creation of good will or solicitation of business, and while it was shown that none of the Chapman products were stored for delivery in this State, it was shown that a portion thereof was actually brought into and delivered in this State by the company’s authorised representatives, in fact, its President, himself, and this was done for the purpose of making the test which was made in this State which induced the sale of the very product, the use of which, for the purpose intended, resulted in the damage for the compensation of which this suit was brought. ’ ’
In the following year (1950), in American Farmers Insurance Co. of Phoenix, Arizona v. Thomason, Guardian, 217 Ark. 705, 234 S. W. 2d 37, in an opinion written by Dr. Leflar (who had, in the meantime, been named Associate Justice of the Court), this Court said:
“In International Shoe Company v. Washington, 326 U. S. 310, it was held that a course of activity consisting merely of the solicitation of business by salesmen, which was admittedly less than the ‘doing of business’, in Washington enabled that state to subject the foreign corporation to personal jurisdiction based on constructive service.”
A footnote at this point reads as follows:
“A statute providing for service in Arkansas on this theory was thereafter enacted, in Act 347 of 1947, Ark. Stats., § 27-340. See 3 Ark. L. Rev. 22-24. There are many cases, both in Arkansas and elsewhere, holding that a state may base jurisdiction upon the doing of the act (less than ‘doing business’) out of which arises the cause of action sued upon” (citing cases).
This, then, is the history of Act 347, and the cases decided thereunder. In the final analysis, appellee depends upon the Rodgers case, and appellants rely upon the Chapman case.
Without hesitation or equivocation, we hold that the instant litigation is controlled by the Chapman case. Not only was the product delivered by the company’s employees (as in the Chapman case), in a company truck, but this truck was especially equipped to make delivery of the product. The stipulation mentions the various activities engaged in by Marcol Chemical Company, and it is noted that deliveries have been made over the state at various times, in addition to several deliveries to Ark-La. In other words, this is not a case of a single, isolated delivery, but consistent sales and deliveries have been made. We think logic unquestionably supports the view taken. Why should a company be permitted to solicit business through personal appeal by its salesmen, sell its product, and make delivery of that product through use of the highways of this state, and to enjoy this privilege without the obligation of defending an action for alleged damages occurring to Arkansas residents because of negligence of the company? This would leave appel lee corporation in the nnnsnal, though enviable, position, of “having its cake and eating it, too.” The legislature undoubtedly intended, in passing Act 347, to liberalize and extend the area in which foreign corporations could be required to answer in Arkansas for damages arising out of the conduct of their activities within this state. While we think the facts in this case are distinguishable from the facts in the Rodgers case, we do not predicate, nor base this opinion, upon that premise. Actually, we are of the view that the Chapman case, in effect, overruled the Rodgers case, though it did not specifically so state. Therefore, as a matter of removing all doubt, we explicitly state that the Rodgers case can no longer be relied upon as authority for foreign corporations to evade the jurisdiction of our courts in factual situations similar to the one at bar.
The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
George Rose Smith, J., not participating.
Emphasis supplied.
The stipulation also reflects that Marco duly registered its products for sale in this state with the State Plant Board as required by Act 108 of 1951; it also filed with the Board quarterly tonnage of its products shipped into the state. Appellants argue and cite authority that this is a further fact which would support their position that Marco Chemical Company was amenable to service in our courts. Since this fact is not considered controlling, we do not enter into a discussion of same.
We think there is a vast difference, on the one hand, in shipping goods or products into the state, and having such products delivered by commercial carrier, and, on the other hand, in delivering the product through company representatives. | [
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Paul Ward, Associate Justice.
Appellee, Erma Jean Baker, as the named beneficiary in an application for insurance applied for by Mrs. Lueva Carroll (now deceased), brought suit against appellant, The National Life and Accident Insurance Company, to recover $750 together with attorney’s fee and the statutory penalty. The cause was submitted to the trial court on the complaint, answer, and stipulated facts. From a judgment in favor of appellee this appeal is prosecuted, seeking a reversal.
Essential Facts. On July 13, 1960 appellant issued and delivered to Mrs. Carroll the following “Conditional Receipt for Premium Deposit”;
Name of Proposed Insured Plan Amount of Deposit
Lueva Carroll PM S $1.96
“$1.96 received of Same (Name of person making payment) as premium deposits on policies of insurance described above for which application is this day made to The National Life and Accident Insurance Co.
“If any policy is issued, the premium deposit for said policy will be applied toward the payment of premiums thereon. If the application for any policy is declined, or if any policy is issued other than as applied for and is not accepted, the premium deposit for that policy will be refunded.
“If both the following conditions are satisfied:
“ (1) the amount of the premium deposit for a policy is at least equal to (a) two weekly premiums on said policy if premiums thereon are payable weekly, or (b) the premium for one full month on said policy if premium thereon are payable monthly or less frequently ; and (2) the proposed Insured is, on the date of said deposit and on the date of any required medical examination, insurable and acceptable in the opinion of the Company’s authorized officers in Nashville, Tennessee under the Company’s rules and practices for the plan, amount of insurance, and premium applied for; then upon the death or bodily injury of the Proposed Insured prior to the Date of Issue of said policy and within thirty-one days of the date of said deposit, the Company will pay the benefit, if any, which would have been payable under the provisions of said policy had its Date of Issue been the date of said deposit.
No benefits shall be payable under the Conditional Receipt for disability from sickness.
No Field Representative of the Company has authority to waive, alter or modify any term of this Receipt, or to bind the company in any way other than as specifically provided in this Conditional Receipt.
This Conditional Receipt is not valid if its date differs from the date of the application, or if any check tendered as a deposit is not honored upon presentation for payment.
THE NATIONAL LIFE AND ACCIDENT COMPANY
(signed) J. S. Cruickshanks
(signature of Licensed Resident
Representative)
Date: 7/13/60 LR 11
DISTRICT DEBIT”
On the back of the receipt was the following “Notice to Holder of Conditional Receipt”:
“This Receipt is valuable. Do not destroy or lose.
“If you do not, within 31 days from the date of the deposit, receive either a policy or the return of your deposit, present this receipt for redemption at the District Office, or the Home Office in Nashville, Tennessee.
THE NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY
“If the Company declines to issue insurance, or if the Proposed Insured or his representative declines to accept a policy issued otherwise than as applied for, the amount deposited must be returned to the person who paid it. Such person will receipt for return of deposit below.
“I acknowledge the return to me of my deposit of $.................. made to The National Life and Accident Insurance Com pany on an application for insurance for which I did not receive a policy.
Date:.................................
Debit No.........................
Proposed Insured, or Person who made deposit, if other than Proposed Insured. District. ’ ’
On the same date, July 13, 1960, Mrs. Carroll paid to appellant’s agent the sum of $1.96 which was sufficient to pay two weekly premiums on the policy when and if issued, and she also signed an application for a $750 life insurance policy to be issued by appellant on certain conditions later discussed. She answered all questions in the application relative to her physical condition, but was not required to be examined by a doctor. All these transactions were between her and appellant’s duly authorized local agent, J. S. Cruickshanks. Appellee was named as beneficiary in the application.
The application for insurance was declined and rejected by appellant at its Home Office in Nashville, Tennessee, prior to July 27, 1960 because Mrs. Carroll was found to be “uninsurable and unacceptable” under its rules and practices. Notice of the rejection of the application reached the local office in Little Bock on Thursday July 28, 1960. On July 30, 1960 Mrs. Carroll died of natural causes. On Monday, August 1, 1960 when the local agent went to the home of Mrs. Carroll to return to her the $1.96 he learned of her death. Thereupon he tendered the money to her daughter, appellee, but she refused to accept it, saying “they” would wait. The money was thereafter deposited in court.
Based on the above facts and the applicable law we have concluded the trial court was in error in rendering judgment in favor of appellee.
To sustain the judgment of the trial court appellee relies almost exclusively on our decision in the case of Union Life Ins. Co. v. Rhinehart, 229 Ark. 388, 315 S. W. 2d 920. However, a casual reading of that case reveals a clear and vital distinction between it and the present case in respect to the facts. A short excerpt from the opinion in the cited ease will suffice to point out the basis on which it was decided:
“The binding receipt specifically sets out the terms and conditions upon which the receipt can be considered void, and that was by a return of the premium. The binding receipt put the insurance into effect as of the date of the receipt . . . provided the applicant was a risk acceptable to the company, and if the applicant was not an acceptable risk the premium was to be returned. The premium was not returned. True, the insurance company had sixty days in which to decide whether to issue a policy, but in the meantime the temporary insurance was in force unless the company voided that risk by returning the premium. This was not done. ’ ’
In other words, according to the receipt in the cited case, the insurance was in effect from the date of issuance and was to remain in effect unless voided by subsequent action on the part of the company.
In the case before us the above mentioned situation was just the reverse. There was to be no insurance until the company took subsequent action, viz: determine Mrs. Carroll to be “insurable and acceptable”. This meaning of the receipt is supported by and is in conformity with other words and clauses contained therein, viz.: It is designated a “conditional” receipt; “if the policy is issued”; “if the application” is declined . . . “the premium will be returned”. If the above language does not make it clear that Mrs. Carroll was to have no protection until the appellant accepted her as insurable, then we are at a loss to know what language would make it clear. Any other interpretation of the English language would cast a cloud of uncertainty on any written contract. After all, insurance appli cations and policies are to be interpreted like other contracts, particularly where there is no ambiguity in the language. This was forcefully stated in Eyring et al v. Kansas City Life Ins. Co., 234 Mo. App. 328, 129 S. W. 2d 1086, where it said:
‘ ‘ But unless such an ambiguity or uncertainty exists there is no more room for construction of an insurance contract, legally and fairly entered into by the parties, than there is for construction of any other contract. ‘The court cannot make contracts for the parties, and it is its duty to enforce them as the parties have made them.’ ”
A situation analogous to the case under consideration in principle and similar as to facts was before this Court in the case of Cooksey v. Mutual Life Insurance Company, 73 Ark. 117, 83 S. W. 317 where Cooksey had signed an application for insurance containing this language:
“I have paid $........................to the subscribing soliciting agent, who has furnished me with a binding receipt therefor, signed by the secretary of the company, making the insurance in force from this date, provided this application shall be approved, and the policy duly signed by the secretary at the head office of the company and issued. ’ ’
The solicitor gave Cooksey a receipt, dated November 27, 1900 which showed $45.96 paid on premium to be returned if the company declined to issue the policy. Cooksey was examined the same day by a physician who recommended acceptance of the application. The application was received by the general agent in Little Bock December 3, 1900 and forwarded to the home office in New York where it was received December 7 and approved again by the physician there in charge. The application was then referred to the inspector of risks who, on December 10, 1960, wrote the Little Bock agent for further information concerning Cooksey’s occupation. Before the investigation was completed and final action was taken by tbe company, Cooksey , died on December 14. Cooksey’s administrator filed suit against tbe company, contending there existed temporary insurance pending the processing period. The trial court directed a verdict in favor of the company. This court, in affirming the trial court, said:
“It is not an unfamiliar custom among life insurance companies in the operation of the business, upon receipt of an application for insurance, to enter into a contract with the applicant in the shape of a so-called ‘binding receipt’ for temporary insurance pending the consideration of the application, to last until the policy be issued or the application rejected, and such contracts are upheld and enforced when the applicant dies before the issuance of a policy or final rejection of the application. It is held, too, that such contracts may rest in parol. Counsel for appellant insists that such a preliminary contract for temporary insurance was entered into in this instance, but we do not think so. On the contrary, the clause in the application and the receipt given by the solicitor, which are to be read together, stipulate expressly that the insurance shall become effective only when the ‘application shall be approved and the policy duly signed by the secretary at the head office of the company and issued’. It constituted no agreement at all for the preliminary or temporary insurance.”
In our opinion the reasoning applied in the above case is controlling here, and calls for a reversal of the trial court.
The Cooksey case has never been overruled but has been cited with approval several times by this and other courts. See: Mutual Life Ins. Co. v. Jordan, Guardian, 111 Ark. 324, 163 S. W. 799; National Union Fire Ins. Co. v. School District No. 55, 122 Ark. 179, 182 S. W. 547; Aetna Ins. Co. v. Short, 124 Ark. 505, 187 S. W. 657; American Ins. Co. v. School District No. 23, 182 Ark. 158, 30 S. W. 2d 217; and, Bellak v. United Home Life Ins. Co., 6 Cir., 211 F. 2d 280. There are numerous cases from other jurisdictions on fact situations very similar to those here, holding that no interim insurance obtains pending acceptance of the applicant as a risk or pending the issuance of a policy of insurance. See: Gonsoulin v. Equitable Life Assur. Soc’y, 152 La. 865, 94 So. 424; Reynolds v. Northwestern Mutual Life Ins. Co., 189 Iowa 76, 176 N. W. 207; The National Life and Accident Ins. Co. v. Fox, 165 Tenn. 264, 54 S. W. 2d 951; Olson v. American Central Life Ins. Co., 172 Minn. 511, 216 N. W. 225; Kronjaeger v. Travelers Ins. Co., 124 W. Va. 730, 22 S. E. 2d 689; Leube v. Prudential Ins. Co. of America, 147 Ohio 450, 72 N. E. 2d 76; and Brancato v. National Reserve Life Ins. Co., 8 Cir., 35 F. 2d 612.
We are aware of the numerous decisions, many of which are cited in 2 A. L. R. 2d at pages 943 et seq., which hold, as this Court holds in the Rhinehart case, supra, that an application and a receipt do create interim insurance; but, generally speaking, these decisions are based on the peculiar wording of such instruments not present in this case. In any event our Court has already chosen the course it desires to pursue and we think it is sound and reasonable.
It follows therefore from what we have said heretofore that the judgment of the trial court should be, and it is hereby, reversed and the cause of action against appellant is dismissed.
Reversed and dismissed.
McFaddin and Johnson, JJ., dissent. | [
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Smith, J.,
(after stating the facts). Two questions are presented. The first is, whether the change of method of payments and extension of time for payments operated to waive the reservation of the title to the machín-' ery. And the second question is, whether the contract of sale shall be construed according to the laws of this State, where a reservation of title is valid against creditors, or according to the laws of Pennsylvania, where -such a reservation is invalid against creditors.
The first question is settled iby the decision of this court in the case of Hollenberg v. Bankston, 107 Ark. 337. We there held, in effect, that a vendor might grant an extension of time, and might -change the manner of payments, without waiving his reservation of title, provided he did not thereby -cancel the -debt thus secured.
The second is the real question in the case. Appellants lay stress upon the provision in the contract that it should not be binding “until accepted by you (Brat-ton) and approved iii writing by the president and -secretary -of the 'Carbondale Machinery ’Company at its home office -in the city -of Carbondale, State of Pennsylvania. ” But the fact must not be lost sight of that, after its installation, the machinery was to (be finally accepted in this State by Bratton and that the whole contract was made with a view to its performance in this State, where the purchase money notes were executed and dated -and were made payable.
It is conceded that, if this contract is to be construed according to the -laws of the State of Pennsylvania, the reservation of the title to the machinery Is v-oid as to the intervening creditors. But shall it be •so construed?
The principle which -controls here was discussed in the case -of Midland Valley Railroad Co. v. Morgan Bolt & Nut Mfg. Co., 80 Ark. 403, where it was said:
‘‘ ‘ The place where -an obligation -originates is often ■accidental; is remote, sometimes receding from spot to spot, as we search for it; and is extrinsic to the essence of the engagement, and to its subsequent development and efficiency.’ 2 Wharton, Conflict of Laws, § 398. ‘It is different, however, with the place of performance, which, enters into the vitals of the obligation, so far as concerns its fulfillment.’ Id. § 399.
“In this case there was an express agreement that part of the material should be delivered at Shady Point, I. T., by appellee to Kelly for nse in construction of appellant’s road in the Indian Territory, and part for like purpose for the road in Arkansas, at Montreal, Arkansas. Notwithstanding there is but .one contract, when it is to be performed in different jurisdictions, the law of each jurisdiction enters into the essence of the performance in the respective jurisdictions. 2 Wharton on Conflict of Laws, § 815a. Therefore the' law of this contract was in Arkansas for so much of it as was to be performed in Arkansas, and in the Indian Territory for so much of it as was to be performed in the Indian Territory. Wharton, supra; -Story on Conflict of laws, § 280, and note.”
It appears that the order for the machinery was accepted by appellee in Pennsylvania and was shipped from that State; but everything else in connection with this transaction was to occur in Arkansas. The final delivery was to take place upon .completion of the plant, when an acceptance was to be given. The provisions of the contract, including' the payment of the notes, were to be porformed here, and this State was, therefore, the place of performance of the contract, and the validity of its provisions will be construed according to the laws of this State.
The decree is therefore affirmed. | [
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Kirby, J.,
(after stating the facts). Appellant contends that the court erred in giving instruction numbered 1, peremptory in effect, taking from the jury consideration of its plea of .the statute of limitations, .and we agree with the contention.
The railroad company brought suit against the Hunter State Biank and H. O. Penrose-, for damages for the wrongful taking of the automobile on December 30, 1909, shipped -over its line to- Wheatley, Arkansas. This suit was begun on the 30th day of April, 1910, against the s-a-i-d appellees -'and appellant did not become- a party thereto until iaf ter the filing of their joint answer on the 7th day of March, 1913, praying -that it be made- a party defendant.
Appellant answered on the- 23d day of April, 1914, denying liability and by amendment on March 3, 1914, pleading the statute of limitations of three- years against appellee’s cause of action. The- amendment of appellee’s complaint, asking judgment in' the alternative against appellant, was not made until after the- hearing of the •cause was begun on March 3, 1914.
The railroad company had the right to the possession of the automobile shipped over its line to shipper’s order, Wheatley, and it was its duty to retain and deliver it' only upon the surrender of its bill of lading therefor. Midland Valley Rd. Co. v. Fay & Egan, 89 Ark. 342. Its agent permitted the taking of the automobile by appellant as the jury found, on December 30, 1910, and its- cause of action arose thereupon. Having the right to the possession of the automobile, it could have retaken or brought .suit therefor, any time after it was wrongfully neceived by appellant, its cause of action being then complete. Rock Island Plow Co. v. Masterson, 96 Ark. 446; Bruil v. Northwestern Mutual Relief Assn., 39 N. W. (Wis.) 529; Nashville, C. & St. L. Ry. v. Dale et al., 68 Kan. 108, 74 Pac. 596; Pennsylvania Co. v. Chicago, M. & St. P. Ry. Co., 144 Ill. 197, 33 N. E. 415.
The suit mot having been commenced against appellant until after the filing of the joint answer of March 7, 1913, praying that it be made a party, was not commenced within three years after the cause of action accrued, December 30, 1909, the date of 'the wrongful taking of the automobile by ¡appellant, .and is barred by the statute of limitation's. Richardson v. Bales, 66 Ark. 452.
Neither appellant company, the consignor 'and consignee, in 'the bill ¡of lading, nor H. O. Penrose, the alleged purchaser, who was to be notified of the arrival of the shipment, had the right to the possession of the automobile, the bill of lading having been transferred to the Blank of Commerce of Little Eock, and the railroad company being responsible for the 'shipment and liable for a failure to ’deliver in accordance with the terms of its contract 'and bill of lading, was bound to know to whom it was delivered. It does not allege .any concealment of its cause of action by the appellant nor does the testimony .show any such fraudulent .concealment of the cause of taction against appellant as would prevent the running of the statute. It shows at most only that the railroad company concluded, that the. automobile was received and taken by appellees ¡and was uninformed of the taking or receipt of it by appellant, which is not sufficient to remove the bar of the statute. Hibben v. Malone, 85 Ark. 584; McKneely v. Terry, 61 Ark. 527.
It follows that the court erred in 'giving said instruction and since the undisputed testimony .shows that more than three years elapsed after the railroad company’s cause of action accrued before suit was commenced against appellant company, the court should have directed a verdict in its favor.
The judgment i.s therefore reversed and the cause dismissed. . | [
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McCulloch, C. J.
This is an action to recover possession of a tract of land in Desha County, .all of the parties claiming title to the land from .a common source. The land was formerly owned toy one Isaac Adair, who executed a deed on June 21, 1887, to his wife, Nancy J. Adair, “and the heirs of her body lawfully begotten.” The plaintiffs, J. J. Rogers and Ida M. Jackson, are the only children of Nancy J. Adair, and the latter executed to the plaintiff, Rogers, on December 5, 1892, a deed of ■gift, conveying her interest in the property to him. On August 13, 1904, plaintiff Rogers and his mother, Nancy J. Adair, executed to the defendants ia deed, conveying the property, and Nancy J. Adair died in the year 1911. These facts are set out in the complaint, and the defendants demurred.
Plaintiff Rogers parted with his title and all interest in the land by executing a conveyance to the defendants. Therefore the trial court was Correct in sustaining a demurrer as to him. It is alleged in the complaint that Rogers signed the deed “to convey only what title she (his mother) had previously conveyed to him, and that he at that time had no other title to convey, he having no further right or title until his mother’s death.” It is argued now that this allegation constituted grounds for transfer of the cause to equity. -
We are ■unable to understand how this allegation can be construed as a statement of facts constituting grounds for equitable relief. It is shown in the complaint that the plaintiff Rogers conveyed away his interest in the land to the defendants, and the language quoted above does not impair the effect of his conveyance or 'afford any grounds for setting it aside.
The case stands in a different attitude so far as concerns the rights of plaintiff Ida M. Jackson. The conveyance of Isaac Adair created what would at common law have constituted an estate tail, but which under the statutes of this State is converted into a life estate with remainder in fee to the persons to whom the estate tail would have passed. Kirby’s Digest, § 735. In other words, Nancy J. Adair took an estate for life with remainder in fee to the plaintiffs, who are her only Children. Wilmans v. Robinson, 67 Ark. 517; Wheelock v. Simons, 75 Ark. 19; Watson v. Wolff-Goldman Realty Co., 95 Ark. 18; Dempsey v. Davis, 98 Ark. 570.
It is argued that the language of the conveylanee brings it within the operation of the rule in Shelley’s case, as discussed in the case of Hardage v. Stroope, 58 Ark. 303, but the language of the conveyance is diff erent and does not fall within the rule. This is fully explained in Wilmans v. Robinson, supra, where the language of the two conveyances, is 'distinguished. It follows, therefore, .that plaintiff Ida M. Jackson is seized in fee simple of an undivided half of the lands in controversy, which interest was by the death of her mother freed from the life estate which encumbered it.
It is urged, however, that the complaint shows on its face 'that the right of action of said plaintiff is barred by the statute of limitation, and for that reason the ruling of the .court in sustaining the demurrer should be affirmed. The statute of limitation can not be raised by demurrer in actions at law, .except in oases where the complaint shows affirmatively, not only that the statutory period has elapsed, but that no. facts exist which takes the case out of the operation of the statute. Collins v. Mack, 31 Ark. 684; Hutchinson v. Hutchinson, 34 Ark. 164; St. Louis, 1. M. & S. Ry. Co. v. Brown, 49 Ark. 253.
We deem it proper, however, in view of the fact that the case must be remanded for further proceedings, to'say that according to the facts set forth in the complaint the .action is not barred. The statute did not begin to run until the death of the life tenant, which occurred less than two years ¡before the action was instituted. Morrow v. James, 69 Ark. 539.
It is insisted that the conveyance toy the life tenant to one of the remaindermen operated as. a surrender of the life estate and extinguished it, and for that reason the statute of limitation began to run in favor of the defendants, who occupied .the lands adversely from the time of the conveyance to them. That is undoubtedly the rule where there is such a surrender of the life estate as extinguishes it by merger into the estate in remainder. “Surrender,” said Chancellor Kent, “is the yielding up. of an estate for life or years, to him that hath the next immediate estate in reversion or remainder, whereby the lesser estate is drowned by mutual agreement.” 4 Kent Comm. (14 ed.) p. 114. The existence of that rule has been recognized by this court. Hayes v. Goldman, 71 Ark. 251. So if there had been a surrender to the remaindermen which extinguished the life estate, the statute of limitation might run against the remaindermen. The conveyance by the life tenant to one of a number of remaindermen who are tenants in common does not, however, constitute a surrender so as to extinguish the life estate, >as there is no merger in that case and the grantee of the life estate holds, as against his tenant or tenants in common, both estates separately. Sperry v. Sperry, 8 N. H. 477. The grantee of the life estate has, under those circumstances, a right to hold the estate for and during the life of the original life tenant and the statute does not toegin to run against another tenant in common until the expiration of that estate.
The judgment is affirmed as to the plaintiff J. J. Rogers, hut reversed as to plaintiff Ida M. Jackson and the cause remanded with direction's to overrule the demurrer to the complaint. | [
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Kirby, J.,
(after stating the facts). It is contended by appellant that it had no knowledge that the cattle necessarily unloaded and collected at Alicia because of the injury to the car in which they were being shipped, were infected with the fever or carried the fever-producing tick, and that there is no evidence tending to show they -were brought from infected territory, nor sufficient to sustain the verdict, .and also that the court erred in giving-instruction numbered 2 for plaintiff.
In said instruction the court told the jury that if the railroad company had in charge a car of cattle from infected territory, which it caused ór permitted to be unloaded at Alicia, and that the cattle of plaintiff were infected with the fever tick and died as a result thereof, and that the infection was communicated to plaintiff’s cattle or to the range, and from the range to plaintiff’s cattle, by the unloading of the car of cattle in charge of the defendant railroad company, or in the driving of said cattle along the road, it should find for the plaintiff.
The district cattle quarantine line of the State runs along the boundary line between Jackson and Lawrence counties, being the southboundary line of Lawrence and the north line of Jackson County. The wreck occurred in Jackson County below the quarantine line, and one of the cattle escaped from the car and was driven to the pen, and the others were carried across the line and unloaded above the line at Alicia in Lawrence County. It is unlawful for any railroad company carrying cattle from other States or Territories- below the quarantine line established by the United States Department of Agriculture or from below the district cattle quarantine line of this State to unload such cattle at any point in the State above the district cattle quarantine line, except such points as are designated by the officials in charge of the enforcement of the law establishing the cattle quarantine. Section 12, Act 409, Acts of 1907. This law also declares that all cattle above the district quarantine line bearing boopMlus anulatus ticks should be considered as affected with a contagious disease.
'Congress by Act of March 3, 1905, chapter 1496, 33 Stat. L. 1264, provided for the establishment of cattle quarantine districts by the Secretary of Agriculture and that cattle or live stock may be moved from a quarantine State or Territory or the quarantined portion of any State or Territory into any other State or Territory under and in compliance with the rules and regulations made 'by the Secretary of Agriculture in pursuance of the act authorizing the establishment of the quarantine district and making it unlawful to move or -allow to be moved any cattle from any quarantine district in any manner or under any conditions other than those prescribed by the -Secretary of Agriculture.
It is contended that the instruction is erroneous because it did not require the jury to find that the company knew or should have known that the cattle which it turned loose and unloaded at Alicia were infected and that the burden was upon appellees to show that appellant had such knowledge or notice of such facts as would make it chargeable with knowledge that the cattle unloaded were infected and liable to communicate the disease within the principle announced in Railway Co. v. Goolsby, 58 Ark. 401.
There is no allegation herein as in that ease that the company knew or had knowledge of -such facts as would make it chargeable with knowledge that the cattle were infected, the allegation being only that the railway com-, pany brought infected cattle into Alicia and unloaded them there and that the infection and disease was thereby communicated to plaintiff’s cattle.
The national law prohibits the -moving and.carrying of cattle from a quarantine State, Territory or district into any other State or Territory, except in compliance with the regulations prescribed by the Secretary of Agriculture, and the State makes it unlawful for a railroad company carrying cattle from any other States or Territories below the quarantine line established by the United States Department of Agriculture or from below-the district cattle quarantine line of the State to unload such cattle at any point in Arkansas above the said district quarantine line, except in accordance with the prescribed regulations. The railroad company is bound to comply with the requirements of -both these laws in the carrying and unloading of cattle which dispenses with any necessity for charging it with knowledge that the cattle brought from below the quarantine line and unloaded above it were infected or infested with the fever tick, and liable to communicate the disease if they were in fact so infected. And if the cattle were carried and unloaded in accordance with the regulations prescribed by the officials charged with the enforcement of these laws, it devolved upon the railroad company to show that fact in justification of its conduct in carrying cattle from below and unloading them above the quarantine line, which would otherwise be unlawful.
The majority of the court, however, is of opinion that there is not sufficient testimony to show that the cattle came from infected territory and communicated the fever, there being nothing tending to show such facts further than that a witness heard the roadmáster say they were Southern cattle and another that they must be, from the peculiar brands upon them. The witness who saw the ticks upon the cattle that were unloaded did not know whether they were fever-producing ticks or not, and his description of their color did not indicate that they were. If the railroad company brought cattle from infected territory or cattle bearing ticks that produced the disease among the plaintiff’s cattle from which they died, it would of course be liable for the damages, but the mere fact that the fever developed among the cattle about Alicia after the car of cattle was unloaded, with further testimony that for some time prior thereto there had been no infection nor fever among the cattle in and around the place, was not sufficient to show that said cattle were infected or from infected territory and communicated the disease to the cattle of plaintiffs. The station at Alicia is within a short distance of the district cattle quarantine line and it is equally as probable that the disease from which plaintiff’s cattle died could have been communicated by cattle or ticks coming’ from below the quarantine line, which was hard by said station.
For the error designated the judgment is reversed and the canse remanded for a new trial. | [
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Smith, J.,
(after stating the facts). We think the remark of the court in regard to the purpose and effect of appellee’s affidavit constitutes prejudicial error which calls for the reversal of the case. The statement of the court may have been true and appellee’s action in making this affidavit may have been authorized 'by appellant; but that is, the very issue the jury was trying, the decision of which would necessarily be controlling in the rendition of their verdict. Appellant was strongly urging that appellee, in making this affidavit, was acting for himself, and not for it, and offered much evidence in support of this position, and the jury should have been permitted to pass upon that contention uninfluenced by any action of the trial court. Appellee had been, permitted to explain this affidavit in detail, and had been sharply cross-examined in regard to it, and an attempt had been made by appellant’s counsel to show by cross-examination that appellee’s version of the transaction was not true, and the remark of the court, upon the formal introduction of the affidavit in evidence, tended, in a measure at least, to sustain appellee in his contention.
The rule which should he 'Observed by trial judges in oases arising before them, where there is a question of the veracity of witnesses, is stated by this court in the opinion in the case of Sharp v. State, 51 Ark. 155, where it was said:
“In .all trials the judge should preside with impartiality. In jury trials especially, he ought to be cautious and circumspect in his language -and conduct before the jury. He should not express or intimate an .opinion as to the credibility of a witness or as to controverted facts. For the jury are the sole judges of fact and the credibility of witnesses; and the Constitution expressly prohibits the judge from charging them as to the facts. The manifest object ef this prohibition was to give to the parties to the trial the full benefit of the judgment of the jury, as to facts, unbiased and unaffected by the opinion of judges. Any expression or intimation of an opinion by the judge as to questions of fact or the credibility of witnesses necessary for them to decide in order for them to render a verdict would tend to deprive one or more of the parties of the benefits guaranteed by the 'Constitution, and would be a palpable violation of the organic law of the State.”
We think,, too, the court should not have permitted Cohn to detail ‘the conversation which he had with appellee in regard to 'the representations which appellee was to thereafter make to appellant to secure the desired extension of time for the payment of the account. It is. said this evidence is not erroneous and prejudicial, because it is admitted that appellee was appellant’s agent, and that appellant is, therefore, bound by these statements. But this is not a suit between appellant and Cohn, and Cohn’s evidence serves to bolster up the self-serving statements of Kempner in this suit against Kempner. The rule which excludes proof of self-serving acts and declarations renders this evidence incompetent. Hamburg Bank v. George, 92 Ark. 472.
For the errors indicated, the judgment of the court below will be reversed and the cause remanded. for a new trial.
Hart and Kirby, JJ., dissent. | [
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Wood, J.
(after stating the facts). The appellant was under no duty to construct and maintain a fence along its right-of-way to prevent cattle that were pastured1 upon the commons from guing upon such right-of-way. The appellee, in permitting his cow to run at large, assumed all the risks incident thereto. Railway Company v. Ferguson, 57 Ark. 16. But the appellant would have no right to allow feed stuff to be emptied or-to accumulate upon its right-of-way in such manner as would be attractive to cattle that might be browsing upon the commons. This would be luring such animals, by reason of their natural instincts, into places of danger; and if appellant did this, it would be negligent. If appellant permitted feed stuff to (be placed upon its right-of-way in such manner as was calculated to attract cattle thereto, it would be liable for damages to the owner of animals that were injured by reason of such negligence. If appellant negligently permitted the fence inclosing its right-of-way to become so out of repair that cattle were injured thereby in attempting to reach feed stuff placed upon its right-of-way in proximity to the defective fence, the appellant would be liable in damages to the owner for such injuries. See Jones v. Nichols, 46 Ark. 207.
Applying the above principles to the facts of this record, appellee, having the burden of proof, has failed to sustain the allegations of his complaint. There is no proof as to how long the defective condition in the fence had existed. There is nothing to show that the defective condition had existed for so long a time as to warrant the inference that appellant had notice of such defective condition and that it was therefore negligent in not having the same repaired before the alleged injury.
It was shown on behalf of appellant that the section foreman and the yardman, whose duties were to keep the fence in repair, did not know that the fence was out of repair at that place until after the injury. They testified that people were continuously cutting the fence. For aught that appears to the contrary, the defective condition in the fence may have existed for so short a time that appellant, in the exercise of ordinary care, could not have repaired the same before the injury to the cow occurred. There is no proof on which to predicate a charge of negligence. Negligence under the circumstances would not be presumed but would have to be affirmatively shown.
For the error in not granting appellant’s motion for a new trial, the judgment is reversed and the cause is dismissed. | [
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Bunn, C. J.
This is an action by the appellee, John F. Williams, as sheriff of Sebastian county, against the appellant special school district, on an itemized account for official services rendered, which is as follows, to-wit:
School District, To John F. Williams, Sheriff, Dr.
Delivering Comm’s to 15 Judges of Flection.....$ 8 00
“ 5 sets of poll books at $2............. 10 00
Collecting returns and ballot box........... 2 00
Attendance election day........................ 3 00
Total.................$23 00
The action was instituted in justice of the peace’s court, where judgment was for defendant school district, and plaintiff appealed to the circuit court, wherein judgment was given for plaintiff, and defendant appealed to this court.
The matter in controversy is, first, whether or not the sheriff was entitled to the fees named in his account at all, and, secondly, if so entitled, is the school district bound by law to pay them?
The election referred to was an election held within and for the special school district of Fort Smith, and was held just after the passage of the act of March 4, 1891, known as “the Australian Ballot Flection Daw,” and it was seemingly held under that law. The school district election law of 1893 had not then been passed ; and it would seem that there was no law in force at the lime under which such elections could have been held, ■unless it was the law of 1891; and even the provisions •of this law did not seem to be as full for this purpose as might be desired. ,
In section 42 of the act of March 4, 1891, the expense of elections is referred to, and the last clause of that section contains this language, to-wit: “Sheriffs being allowed the same fees for services performed hereunder as for similar services for which fees are fixed by law,” Now the fees then fixed by law for similar services, and really identically the same services, that is, for delivering poll books for each township, was two •dollars, and of course for the five polling places in Fort Smith, amounted to the sum of $10, as set forth in the '2nd item for the account herein sued on. This is the •only item in the account which covers fees for services provided by law, coming under the head of similar services within the meaning of the rulings of this court on the subject. The sheriff therefore is entitled to the fees claimed in that item; and the remaining question is, is the school district under legal obligation to pay that much, it appearing that it is not bound for the other items, for the reason stated.
Section 6261 of Mansfield’s Digest, not repealed by the act of 1891, provides that elections for special school districts are to be held at the same places and conducted in the same manner as elections for municipal officers of the city or town constituting the school district, and the returns to be made to the mayor and alderman thereof; and they shall declare the result and so forth. Neither that section nor the act of 1891, provides expressly that the school district shall pay any of these expenses ; but, since the sheriff by general law was entitled to the item named, and since the election was held for the benefit of the district, under the rule that in the absence of specific directions on the subject the beneficiary should pay the legitimate expense incurred, we think the appellant is bound to the extent of the ten dollars charged in the second item. We make no ruling as to the other items, except that the a-pfellant is not bound for them.
If appellee will enter remittitur within 30 days as to all except the ten dollars, the judgment will be affirmed, with cost of appeal to be paid by appellee; otherwise, the judgment is reversed, and cause remanded with directions to proceed in accordance herewith. | [
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ANNABELLE CLINTON IMBER, Justice.
| Appellant Timothy Wallace was convicted by a Saline County jury of two counts of capital murder in the deaths of Brandy Wallace and Billy Hassel. Wallace was sentenced to two consecutive terms of life imprisonment without the possibility of parole. He now appeals, alleging that the circuit court erred in denying the following six motions: 1) the motion to suppress statements he made during a 911 call; 2) a motion for continuance; 3) the motion for change of venue; 4) a motion for mistrial; 5) the motion to suppress his statement to police; and 6) his motion for directed verdict. Because Wallace was sentenced to life imprisonment, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2008). We find no error and affirm.
At approximately 2:23 to 2:26 a.m. on June 26, 2005, Wallace placed a call to 911 |2and advised that he had shot his former wife and a male of her acquaintance. He continued his conversation with 911 dispatch for several hours, threatening to commit suicide and refusing to divulge his location. Deputies with the Saline County Sheriffs Office initiated a search. At approximately 5:30 a.m., Sergeant Mark Kyzer located Wallace in his parked pick-up truck in a rural section of Saline County. The call was transferred from 911 dispatch to Kyzer. Approximately one hour after Kyzer’s arrival, several more deputies arrived on the scene and were instructed by Wallace, through his telephone conversation with Kyzer, to keep at a distance. At approximately 10:15 a.m., after Wallace had spoken with Kyzer for several hours, Detective Michael Frost initiated a conversation with Wallace and persuaded him to surrender. Frost and Kyzer transported Wallace to the Benton Police Department, which had jurisdiction over the investigation of the shootings.
Starting at 11:40 a.m. on the same date, Wallace was questioned at the Benton Police Department by Detective Patrick Baker, who was later joined by Prosecutor Robert Herzfeld. After being read his Miranda rights and signing a waiver-of-rights form, Wallace stated that he had gone to the home he used to share with Brandy without knowing that Hassel was there. He had given Brandy the marital residence in their uncontested divorce, and the divorce decree was filed only nine days earlier. Wallace offered alternating reasons for going to the house, stating that he wanted to retrieve some of his personal belongings, that he wanted to talk to Brandy, that the two had planned to spend the next day together with their children, and that he wanted to get his pistol so that he could kill himself. According |sto Wallace, Brandy initially refused to let him enter the home and then argued with him upon his entry. He claimed that he attempted to leave after retrieving his gun from a bedroom, but was physically attacked by Brandy, who began calling for Hassel. Hassel then attacked Wallace as well. Wallace opened the box containing the gun and began hitting Hassel on the head with the gun. He then removed the gun’s lock, discarded the empty clip, loaded the gun, and began firing. After the initial shooting, Hassel “was trying to get up and said, ‘I’m gonna kill you. I’m gonna kill you,’ ” whereupon Wallace shot Hassel again. He stated that he thought he had shot Brandy accidentally. After the shooting, Wallace left in his truck and called 911 immediately from his cell phone. During the course of the interrogation at the police department, he wrote out a statement to the same effect.''
According to Dr. Daniel Konzelmann, an associate medical examiner at the Arkansas State Crime Laboratory, Brandy suffered four gunshot wounds: one to the right thumb, characterized as a minor injury; one flesh wound to the right shoulder; one serious wound to the right upper arm that was possibly survivable; and one life-threatening wound to the right upper chest. There were also four exit wounds. In the‘ medical examiner’s opinion, the wounds to the thumb and shoulder could have been caused by a single shot. As a result of the wounds, she suffered damage to her lung and a perforated artery, which resulted in a lack of blood flow to the brain. Dr. Konzelmann testified that she probably lost consciousness in less than one minute. Approximately four to six additional minutes would have elapsed before irreversible brain injury set in.
RHassel sustained three gunshot wounds: one flesh wound to the left lower arm, one life-threatening wound to the left lower neck, and another life-threatening wound to the left upper neck, which would have caused a loss of motor functions and a complete inability to defend himself. There were three exit wounds, with the bullet from his left lower neck lodged just under the skin of his right chest. Hassel also suffered blunt force trauma, with scrapes to his forehead, a laceration to the back of his head, and a skin tear over the back of his neck. Dr. Konzelmann stated that these injuries could be considered consistent with the butt of a gun.
Jim Looney, a firearm and tool mark examiner with the Arkansas State Crime Laboratory, testified that three of four bullets recovered from the scene had been fired from Wallace’s gun. Another bullet was too damaged to make a determination. He further testified that seven shell casings recovered from the scene had been discharged from Wallace’s gun.
Wallace was charged with the murders on August 9, 2005. The information alleged that he had caused the deaths of Brandy Wallace and Billy Hassel with the premeditated and deliberated purpose of doing so, in violation of Arkansas Code Annotated section 5 — 10—101(a)(4) (Supp. 2005). The information was subsequently amended three times, to reflect that the State would seek the death penalty, to add a firearm enhancement, and to add the charge of failure to appear. The failure-to-appear charge was later nolle prossed, pursuant to Wallace’s motion for severance. As a result of Wallace’s flight to Canada and sub sequent | ¡¡extradition, the State was forced to waive the death penalty. Wallace’s trial was held on June 12, 13, and 14 of 2007. The circuit court accepted the jury’s recommendation of consecutive life sentences without the possibility of parole. The jury found that Wallace had employed a firearm in the commission of the murders, but the State later waived the firearm enhancement. Wallace filed a timely notice of appeal of the judgment and commitment order.
Motion for Directed Verdict
Wallace asserts on appeal that the circuit court erred in failing to grant his directed-verdict motion. The crux of his argument is that he lacked the requisite premeditation and deliberation for capital murder. He contends that he caused Has-sel’s death in self-defense and that Brandy’s death was an accident. Although Wallace raises this issue as his final point on appeal, double-jeopardy concerns require that we review arguments regarding the sufficiency of the evidence first. Bol- din v. State, 373 Ark. 295, 297, 283 S.W.3d 565, 567 (2008).
An appeal from a denial of a motion for directed verdict is a challenge to the sufficiency of the evidence. Price v. State, 373 Ark. 435, 438, 284 S.W.3d 462, 465 (2008). When reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict was supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond speculation or conjecture. Id. The reviewing court views the evidence |fiin the light most favorable to the verdict and considers only evidence that supports the verdict. Id.
Circumstantial evidence may constitute substantial evidence to support a conviction. Id. The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. This question is for the jury to decide. Id. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id.
Finally, the credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. at 438-39, 284 S.W.3d at 465.
In accordance with Arkansas Code Annotated section 5-10-101(a)(4), a person commits capital murder if he or she causes the death of any person with the premeditated and deliberated purpose of causing the death of another person. This court has long held that the premeditation and deliberation required need not exist for a particular length of time; rather, they may be formed in an instant. Reese v. State, 371 Ark. 1, 3, 262 S.W.3d 604, 606 (2007). Moreover, an accused’s intent or state of mind can rarely be proven by direct evidence. Id. Thus, we have acknowledged that a jury may infer premeditation and deliberation from circumstantial evidence, such as the type and character of the weapon used, the nature, extent, and location of the wounds inflicted, and the conduct of the |7accused. Id. Furthermore, we have consistently entertained the presumption that one intends the natural and probable consequences of one’s actions. Coggin v. State, 356 Ark. 424, 432, 156 S.W.3d 712, 717 (2004).
We hold that the evidence presented by the State was sufficient to support a jury’s inference of premeditation and deliberation. We have already noted the evidence of multiple gunshots. In addition, Dr. Konzelmann testified that at least some of Brandy’s wounds were inflicted at close range. Specifically, the autopsy of her body revealed powder stippling in the areas of her right arm, neck, and cheek, which indicated that the muzzle of the gun was close enough to deposit unburned or partially burned powder on her skin. This finding suggested that the shots were fired from no more than three feet away. We have previously considered evidence of multiple close-range gunshots to be consistent with a conclusion of premeditation and deliberation. See, e.g., id. at 434-35,156 S.W.3d at 719. With regard to Hassel’s injuries, the evidence indicated that the gunshots to his neck originated from behind. This court has upheld findings of premeditation in cases where the evidence showed that a victim was shot multiple times from behind. See, e.g., Farris v. State, 308 Ark. 561, 565, 826 S.W.2d 241, 244 (1992).
Other circumstances present at the crime scene support the jury’s inference of premeditation and deliberation. For example, the State submitted evidence indicating that Brandy was attempting to leave the house before being shot. Photographs showed that Brandy was clutching her keys at the time of her death. In addition, the State introduced |sa recording of a 911 call placed by Brandy, in which she advised dispatch that her former husband was at her house with a gun. Dr. Konzelmann testified to stippling on her right upper and lower arm, which indicated that her arm was flexed at the time she was shot, possibly because she had been holding her cell phone to her ear. Photographs depicted Brandy’s badly damaged cell phone, which appeared to have been hit by a bullet. Dr. Konzelmann also testified about the bullet found just beneath the surface of Hassel’s skin, noting that the wound displayed some scraping around it, indicating shoring. Dr. Konzelmann explained that a shored exit suggests either tight clothing or a flat and unyielding surface against the skin at the time the bullet partially exited, causing the bullet to break the skin and then bounce back beneath the skin’s surface. He testified that Hassel could have been against a wall or on the floor at the time of the infliction of that particular wound.
Wallace nonetheless maintains that his theory of self-defense was supported by the evidence. He notes that the evidence from the crime scene indicated that a fight had taken place, and offers the fact that the bullets entered the bodies from various directions as evidence that he was not taking aim at the victims. However, as previously noted, the jury is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Brunson v. State, 368 Ark. 313, 317, 245 S.W.3d 132, 136 (2006). In doing so, the jury may choose to believe the State’s account of the facts rather than the defendant’s. Id. Moreover, the State introduced evidence refuting | ¡Wallace’s self-defense theory. For example, Detective Baker, who had examined the crime scene, testified that he found no evidence to indicate that more than one gun had been fired in the residence, and that there were no weapons or items that may have been used as weapons near the victims’ bodies. Detective Baker also testified that Wallace did not display any defensive wounds. Dr. Konzelmann testified that neither of the victims’ bodies showed signs of an altercation. Finally, Looney stated that Wallace’s gun functioned properly when he test-fired it and that he did not test the “trigger pull” because there were seven shots, rather than the usual one shot indicating the possibility of an accident.
Lastly, evidence of Wallace’s flight, both immediately after the murders and months later, following his release on bond, further supports the jury’s verdict. It is well settled that flight is probative evidence of guilt. Gillard v. State, 366 Ark. 217, 221, 234 S.W.3d 310, 313 (2006).
In light of this evidence, we cannot say that the jury resorted to speculation and conjecture in reaching its verdict. The circumstances of the crime easily give rise to an inference of premeditation and deliberation. Accordingly, we affirm the circuit court’s denial of Wallace’s motion for directed verdict.
Motion to Suppress 911 Call
Wallace argues that the statements he made during the course of his 911 call should have been suppressed for two reasons: he was in custody at the time the statements were made and had not been given the Miranda warnings, and the sheriffs deputies had offered |10a false promise in order to procure a confession. In response, the State contends that Wallace has failed to demonstrate any error in the circuit court’s ruling, as he has not identified any incriminating statements that were used against him at trial. The State further argues that Wallace’s false-promise argument fails because the promise allegedly made was not, in fact, false.
On appeal of a circuit court’s determination of voluntariness of a confession, we make an independent determination based upon the totality of the circumstances. Clark v. State, 374 Ark. 292, 299, 287 S.W.3d 567, 572 (2008). The ruling is reversed if it is clearly against the preponderance of the evidence, which we have interpreted as being the same standard as the clearly-erroneous standard. Id. Any conflict in the testimony of different witnesses is for the circuit court to resolve. Id. In essence, this court reviews the circuit court’s findings of fact for clear error, and we make an independent, or de novo, determination of voluntariness. Id.
We are unable to fully address Wallace’s Miranda argument, as neither the recording of the 911 call nor the transcript thereof appear in the record. The State indicated at the hearing on Wallace’s motion to suppress that it did not intend to introduce the 911 call during its case-in-chief and would only rely upon it if needed to impeach Wallace’s testimony, should he testify at trial. The State did not attempt to introduce either the recording or the transcript. In fact, counsel for Wallace attempted to introduce the transcript at trial, but the circuit court sustained the State’s objection. In addition, counsel | nfor Wallace elicited cross-examination testimony from Detective Frost regarding the substance of the 911 call. Otherwise, the only evidence of the call introduced at trial showed that it was made, that Wallace threatened suicide and refused to divulge his location, and that he told dispatch of the shootings. Wallace’s counsel cross-examined other witnesses about the 911 call, including Brandy’s brother and Detective Baker; however, neither witness had personal knowledge of Wallace’s statements. In sum, Wallace fails to point to any specific incriminating statement made during the 911 call that was erroneously admitted. Additionally, it was Wallace who attempted to bring out evidence of his statements. He cannot now be heard to complain of that for which he was responsible. -See Womack v. State, 301 Ark. 193, 200, 783 S.W.2d 33, 36 (1990).
Moreover, even assuming that Wallace desired to suppress the fact that the call was made, or the fact that he informed 911 of the shootings, his argument still fails. For the first three hours of the eight-hour 911 call, up until the point at which Sergeant Kyzer located Wallace at approximately 5:30 a.m., it is clear that he was not in custody for Miranda purposes. As best we can tell from the record before us, Wallace spoke only to 911 dispatch during that time. He was alone in his vehicle, and law enforcement was unable to determine his location. Therefore, he could have ended the call at any point and gone wherever he desired. A person is in custody for purposes of the Miranda warnings when he or she is “deprived of his freedom by formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Hall v. State, 361 Ark. 379, 389, 206 S.W.3d 112830, 837 (2005) (quoting Wofford v. State, 330 Ark. 8, 28, 952 S.W.2d 646, 656 (1997)). In resolving the question of whether a suspect was in custody at a particular time, the only relevant inquiry is how a reasonable person in the suspect’s shoes would have understood the situation. Id. For the early portion of the 911 call, Wallace’s freedom of movement was not restrained at all. Thus, the procedural safeguards required by Miranda were inapplicable at that point, and any statements made prior to Kyzer’s arrival were properly admitted.
We also do not find merit in Wallace’s false-promise argument. The alleged false promise with which he takes issue was made by Detective Frost during the standoff and was apparently recorded as part of the 911 call. However, because the 911 call does not appear in the record, the only record of the statement was made during the suppression hearing, when Wallace’s attorney quoted the statement during his cross-examination of Frost: “Did you not say that there’s not a jury in this land that would convict a person being attacked by two people for defending themselves. Because what it bods down to is if you shoot somebody, you’re in fear of your life, man, you’re in the right on that?” Wallace argues on appeal that, due to this false promise, his incriminating statements during the 911 call were not made by free and deliberate choice.
It is well settled that a statement induced by a false promise of reward or leniency is not a voluntary statement. Roberts v. State, 352 Ark. 489, 499, 102 S.W.3d 482, 489 (2003). When a police officer makes a false promise that misleads a prisoner, and the prisoner gives a confession because of that false promise, then the confession has not been made | ^voluntarily, knowingly, and intelligently. Id. In deciding whether there has been a misleading promise of reward or leniency, this court views the totality of the circumstances and examines, first, the officer’s statement and, second, the vulnerability of the defendant. Id.
In examining Frost’s statement, we note that the detective merely promised that a jury would not convict someone who was acting in self-defense. He clearly did not promise that a jury would accept Wallace’s self-defense theory. This court has long held that it is a false promise that renders a confession involuntary. King v. State, 317 Ark. 293, 302, 877 S.W.2d 583, 588 (1994) (citing Tippitt v. State, 285 Ark. 294, 686 S.W.2d 420 (1985)). Because there was nothing false about Frost’s statement, we reject Wallace’s argument and affirm the circuit court’s denial of his motion to suppress.
Motion for Continuance
Wallace next contends that the circuit court erred in denying his motion for continuance made at the beginning of the second day of the three-day trial. One of Wallace’s four attorneys advised that his ear had been stolen the night before and that a number of files, documents, and exhibits pertaining to the case had been inside. The attorney requested time to gather the missing evidence and recompile his notes, emphasizing the importance of his notes for the cross-examination of Detective Baker, who was set to continue his direct examination at the beginning of the second day. Counsel for the State offered to furnish to defense counsel copies of the missing documents and exhibits and _|_y suggested that one of Wallace’s attorneys attempt to recompile the notes for Baker’s cross-examination during his continued direct examination, which would last an estimated three hours. The State also agreed to stipulate to certain evidence regarding phone records that could not be quickly obtained.
The circuit court instructed Wallace’s counsel to recompile the notes during Baker’s direct examination, stating, “I think that will be adequate time. But once the direct examination of Detective Baker is complete, I’ll take that up again.” Following direct examination, Wallace’s counsel proceeded with cross-examination without raising the issue again or requesting a ruling. An appellant must obtain a ruling on his or her argument to preserve the matter for this court’s review. Strong v. State, 372 Ark. 404, 419, 277 S.W.3d 159, 170 (2008). The burden of providing a record sufficient to demonstrate error is upon the appellant. Id. Because Wallace has failed to provide such a record on this issue, we are precluded from addressing the merits of his argument.
Motion for Change of Venue
Wallace next argues that he was denied his right to a fair trial by the circuit court’s denial of his petition for change of venue. He claims that he was not given an impartial jury due to the excessive pretrial publicity in Saline County. Wallace points out that several members of the jury panel stated during voir dire that they had read about the case, seen coverage of the case on television, or heard about the case from other members of the community.
ItsAs a preliminary matter, the State alleges that the circuit court never ruled on Wallace’s petition for change of venue and that the issue is, therefore, not properly preserved for this court’s review. As the State points out, after hearing counsel’s arguments on the petition at a pretrial hearing, the circuit court elected to withhold a ruling until the potential jurors’ answers to questions on voir dire could also be considered. However, at a later pretrial hearing, the court noted that it had already denied the petition. Following questions from counsel, the circuit court elaborated:
Well, what I did was, denied at that time subject to — I said both my review and any other information that y’all want considered. But I did write down that I, I did remember reserving some option to change my mind. But at this point, at that point on April 16th, it was denied. I see no reason to review that at this time unless y’all want me to.
Counsel did not request that the issue be revisited at that time, and the petition for change of venue was not brought up again during the course of the trial. Accordingly, we conclude that the circuit court had denied the motion and that the issue is now properly before us.
The United States and Arkansas Constitutions entitle a defendant to a fair trial. Swindler v. State, 267 Ark. 418, 424, 592 S.W.2d 91, 94 (1979). If, because of pretrial publicity, an impartial jury cannot be seated to try a defendant, his right to a fair trial is violated. Id. However, a change of venue should only be granted when it is clearly shown that a fair trial is not likely to be had in the county. Porter v. State, 359 Ark. 323, 324, 197 |16S.W.3d 445, 446 (2004). This court reviews the denial of a motion for change of venue for abuse of discretion. Id. We conclude that Wallace has failed to meet this burden.
We have held that there can be no error in the denial of a motion for change of venue if the transcript of the jury-selection process shows that an impartial jury was selected, due to the fact that voir dire of the jury provides adequate safeguards against pretrial publicity. Anderson v. State, 357 Ark. 180, 202, 163 S.W.3d 333, 345 (2004). A review of the record in the instant case reveals that an impartial jury was selected. Only three of Wallace’s thirteen jurors (including twelve jurors and one alternate) noted during voir dire that they had heard about the case either through the media or through other members of the community prior to trial. Two of those three jurors maintained that they would be able to set aside their prior knowledge and form an opinion based only on the evidence presented at trial. Wallace moved to strike the third juror for cause, based upon her statement that she would like to hear the defendant’s version of the case during the trial. However, when the State asked further questions of this juror, she stated that she could accept and apply the presumption of innocence and that she could follow the court’s instructions concerning the fact that Wallace was not required to put on proof. Thus, we hold that this jury-selection process yielded an impartial jury free from the potential prejudices caused by excessive pretrial publicity. As we have stated, a defendant is not entitled to jurors who are totally ignorant of the facts surrounding the case, as long as they can set aside any impression they have formed and render a verdict solely on the evidence at trial. Baughman v. State, 353 | l7Ark. 1, 9, 110 S.W.3d 740, 745 (2003).
In addition, we have held that affidavits filed in support of a motion for change of venue that cite little or nothing beyond an affiant’s own conviction that a fair trial is not possible are insufficient to suggest an abuse of discretion. Porter v. State, 359 Ark. at 324, 197 S.W.3d at 447. Wallace’s petition was supported by two such affidavits, which averred that in the affiants’ opinions Wallace would not receive a fair trial in Saline County. This evidence, combined with evidence submitted by Wallace indicating a substantial amount of pretrial publicity, is insufficient to support a conclusion that the circuit court abused its discretion. Accordingly, we affirm the circuit court’s denial of Wallace’s petition for change of venue.
Motion for Mistrial
For his next point on appeal, Wallace contends that the circuit court erred in failing to grant his motion for mistrial. He made the motion following the discovery that prosecutors had inadvertently provided a juror with a copy of the transcript of Wallace’s statement to police that contained notes and highlights made by the prosecutors. The transcripts were provided to each member of the jury while the video of Wallace’s statement was played, but due to an oversight, the copy given to one particular juror had the State’s notes written on it. Wallace argues on appeal that the State’s notations suggested that he was guilty and characterized some of his comments made during the interrogation as admissions of guilt. He maintains that the evidence was inherently prejudicial.
11RWe are again precluded from addressing the merits of this argument. Following the circuit court’s in-chambers questioning of the juror and the court’s decision to excuse that particular juror, counsel for Wallace stated, “I’ll withdraw my motion.” This court has held that when an objection is withdrawn, it is as though the objection was never made. Ramaker v. State, 345 Ark. 225, 232, 46 S.W.3d 519, 523 (2001). Moreover, we will not consider arguments raised for the first time on appeal. Id. at 232, 46 S.W.3d at 524. Therefore, Wallace’s challenge of the circuit court’s denial of his motion for mistrial is not properly before us.
Motion to Suppress Statement to Police
Finally, Wallace argues that the circuit court erred in failing to suppress his statement to Detective Baker. He asserts that the statement was taken in violation of his rights, as he invoked his right to the assistance of counsel by asking if he needed an attorney. Wallace alleges that Baker ignored this question and proceeded to interrogate him. He acknowledges that he signed a waiver-of-rights form but contends that it became invalid after his request for the assistance of an attorney. In response, the State argues that Wallace’s question was not an unequivocal invocation of his right to counsel and was thus insufficient as a basis for the conclusion that Baker should have ceased questioning.
The key question for our consideration is whether Wallace sufficiently invoked his right to the assistance of counsel. The United States Supreme Court has made it clear that when invoking the Miranda right to counsel, the accused must be unambiguous and | ^unequivocal. Holsombach v. State, 368 Ark. 415, 421, 246 S.W.3d 871, 876 (2007) (citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). An equivocal request for counsel does not obligate the police to cease questioning and seek clarification, but interrogation may continue until the suspect clearly requests counsel. Id. As the United States Supreme Court has stated, an accused “must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). Furthermore, “after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.” Id. at 461, 114 S.Ct. 2350.
Here, when Baker asked Wallace if he understood that he had the right to talk to an attorney before any questioning and to have an attorney present with him during questioning, Wallace responded, “Yes sir. Do I need one?” The following colloquy ensued:
Detective Baker: That’s up to you.
Wallace: I don’t know.
Detective Baker: I mean, that’s your right. I can’t tell you yes or no, you know. That’s a decision you have to make for yourself. Do you understand that if you cannot afford to hire an attorney, one will be appointed by the court for you prior to any questioning at no cost to you.
Wallace: Yeah, I understand. I can’t afford one right now.
Detective Baker: Do you understand that if you decide to answer questions now 120you can decide to stop answering questions any time and that you can stop answering questions at any time until you talk to an attorney.
Wallace: Yes, sir.
Wallace then signed to indicate that he understood his rights and signed again to indicate that he waived his rights.
We have previously addressed this precise issue. See Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006); Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994). In Flanagan, the accused, upon being re-Mirandized, asked, “Do I need to call an attorney?” 368 Ark. at 159, 243 S.W.3d at 877. Similarly, in Higgins, the accused was read the Miranda warnings and signed a form indicating that he understood his rights; thereafter, he asked, “Do you think I need a lawyer?” 317 Ark. at 557, 879 S.W.2d at 425. In both cases, upon considering whether such questions constituted an unequivocal request for the assistance of counsel, this court concluded that the reference to an attorney “was surely ambiguous and hardly amounted to the sort of direct request required to invoke [the] Fifth Amendment right to counsel.” Flanagan, 368 Ark. at 160, 243 S.W.3d at 878; Higgins, 317 Ark. at 563, 879 S.W.2d at 428. In Higgins, we likened the accused’s remark to that at issue in Davis v. United States, supra, wherein the accused stated, “Maybe I should talk to a lawyer.” Higgins, 317 Ark. at 562, 879 S.W.2d at 427.
The question Wallace posed to Baker is analogous to the questions at issue in Flanagan and Higgins. As we held in those cases, it did not amount to the type of 121 unequivocal request required to force an interrogating officer to cease questioning. Therefore, we affirm the circuit court’s denial of Wallace’s motion to suppress his statement.
. Rule Jp-3(h) Review
"In compliance'with Arkansas Supreme Court Rule 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Wallace, and no prejudicial error has been found. Boldin v. State, 373 Ark. 295, 283 S.W.3d 565 (2008).
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LARRY D. VAUGHT, Chief Judge.
|,Vance Rollins appeals his two manslaughter convictions that followed an automobile accident resulting in the deaths of Nina and Lawrence Humphrey. He raises several arguments, including insufficiency of evidence, erroneous denial of a motion in limine, and improper admission of evidence. However, the essential question on appeal is whether the proof presented at trial established that Rollins was criminally reckless, a required element of the manslaughter offense. After a careful review of the record and relevant case law, we conclude that it does not. As such, we modify the judgment of conviction to the lesserjincluded2 offense of negligent homi cide and sentence Rollins to the maximum allowed by law on each count.
The trial testimony painted a clear picture of the events immediately preceding this tragic and fatal automobile accident, which claimed the lives of Mr. and Mrs. Humphrey. Just before the accident, Rollins tailgated a vehicle driven by O.J. Williams for approximately fifteen miles. Rollins also drove erratically, repeatedly coming up on Williams’s bumper and then falling back a long distance when Williams slowed in hopes that Rollins would pass. Williams eventually pulled off the road at a CCC camp so that Rollins would pass him. Linda Brewer, who is a nurse, testified that she was traveling north on Highway 7 behind the Humphreys’ vehicle at the time of the collision. She observed Rollins’s vehicle in the oncoming lane of traffic. She noted that Rollins neither slowed nor swerved prior to the collision. Faith Miller, Ms. Brewer’s daughter who was traveling with her, testified that, just prior to the collision, she saw Rollins look over his right shoulder.
Following the collision, Brewer and Miller exited their vehicle to render aid. Brewer assisted Rollins in his attempt to free his passenger from the wreckage. Later, Brewer observed Rollins walking and looking around. After she approached him, she saw him drop some green pills onto the ground. Brewer suggested that Rollins lie down; she saw green pills underneath him at one point after he raised up. Brewer collected several of these pills and tendered them to the police who arrived on the scene.
Trooper Greg McNeese with the Arkansas State Police testified that a Perry County sheriffs deputy gave him the green pills, which he placed in an envelope and secured in his | ¡¡vehicle. He also stated that he found a black bag in the front seat of Rollins’s vehicle that contained clothes, toiletries, and a black case with three pipes in it. Christa Hall, a forensic chemist with the Arkansas State Crime Lab, testified that the green pills recovered at the scene were hydrocodone and acetaminophen and that the three pipes recovered from Rollins’s vehicle tested positive for cocaine and procaine.
Becky Carlisle, a forensic toxicologist with the Arkansas State Crime Lab, testified that the blood samples taken from Rollins tested positive for a defectible amount of cocaine and sertraline, an antidepressant. However, she acknowledged that the blood sample contained less than .05 micrograms per milliliter, the minimum that will register when tested. Carlisle conceded that she could not accurately estimate how long the substances had been in Rollins’s system prior to the collision or whether that level of cocaine in the blood would interfere in any way with his ability to function normally. Carlisle also confirmed that Rollins’s blood sample did not contain hydrocodone or acetaminophen.
At the conclusion of the State’s evidence, Rollins moved for a directed verdict, arguing that the State failed to provide substantial evidence of the element of recklessness. The trial court denied the motion, but agreed to instruct the jury on the lesser-included offense of negligent homicide. Ultimately, the jury found Rollins guilty on two counts of manslaughter and sentenced him to two consecutive four-year terms in the Arkansas Department of Correction.
We first address Rollins’s argument that there was insufficient evidence to support |4his manslaughter convictions on the basis that there was no evidence that he acted recklessly. Rollins was charged with manslaughter pursuant to Ark.Code Ann. § 5 — 10—104(a)(3) (Repl. 2006), which provides that a person com mits manslaughter if he recklessly causes the death of another person. Arkansas Code Annotated § 5-2-202(3) (Repl.2006) provides:
A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
Thus, the relevant inquiry is whether the evidence in the instant case demonstrated that Rollins consciously disregarded a substantial and unjustifiable risk.
The trial evidence established that Rollins was not intoxicated at the time of the accident. This is a closed question. At the time of the accident his system contained none of the substances found in the green pills that he attempted to hide immediately after the accident; he had less than a measurable amount of cocaine in his system; and the mere presence of an illegal substance in trace quantity does not amount to a per se showing of impairment. The fact that Rollins was neither intoxicated nor impaired was evidenced by the fact that the trial court did not instruct the jury on the felony version of negligent homicide, which contains the element of intoxication.
Despite the absence of proof relating to Rollins’s drug-related impairment, the State |fidid introduce proof that he tailgated, looked backward at the bend of a turn, crossed the center line, and drove erratically. Certainly, these acts are all careless, and in the aggregate they go beyond mere inattentiveness. However, in the context of our case law relating to the imposition of criminal liability for deaths caused by automobile accidents, we are convinced that Rollins’s actions constitute negligence, not recklessness.
Our supreme court’s analysis in Hoyle v. State, 371 Ark. 495, 268 S.W.3d 313 (2007), supports our conclusion. In this manslaughter case, the court thoroughly examined the threshold “recklessness” required to satisfy this element of the crime:
At trial, James Gann testified that he believed Hoyle almost ran another vehicle off the road, that Hoyle was extremely talkative at one point and then totally silent immediately prior to the accident, that Hoyle never braked immediately before striking the Dean motor home, and that Hoyle did not attempt to assist any of the victims at the scene of the accident. Trooper Adams testified that his investigation revealed that Hoyle’s truck was originally traveling southbound, while the Dean vehicle was headed northbound, when Hoyle’s vehicle crossed the center line and hit the Dean vehicle at a forty to forty-five degree angle. According to Corporal Adams, the impact of Hoyle’s vehicle pushed the Dean vehicle backwards before Hoyle’s vehicle went through the motor home. Adams also stated that while investigating the crash, he noticed Hoyle sitting by himself on a hill near the accident scene. This evidence coupled with the toxicology report that established that Hoyle had methamphetamine in his system at the time of the accident and Dr. Pappas’s expert opinion that .221 micrograms per milliliter of methamphetamine without a doubt had a negative effect on the driving in this case clearly demonstrates that Hoyle acted recklessly in driving while under the influence of methamphetamine.
We simply do not agree that the jury had to resort to speculation or conjecture in order to conclude that the meth amphetamine in his system so altered his motor skills that it was the cause of the wreck. The foregoing evidence constituted substantial evidence that Hoyle recklessly caused the deaths of Hilda Dean and Gary Dean, in that he consciously disregarded a substantial and unjustifiable risk that death might occur if he operated a commercial vehicle after ingesting methamphetamine, and the | (¡disregard thereof constituted a gross deviation from the standard of care that a reasonable person would observe in Hoyle’s situation.
Id. at 503-04, 268 S.W.3d 313, 319 (2007).
Unlike the facts presented in Hoyle, here, there was no testimony that Rollins seemed impaired or engaged in erratic behavior following the accident. And, there was no evidence that he was intoxicated. These two distinctions are crucial because, according to the holding in Hoyle, this is the type of “substantial” evidence required to support the reckless element of manslaughter when the charged death results from an automobile accident. The Hoyle case tells us that evidence of driving while intoxicated or impaired, or exhibiting extraordinarily erratic behavior, can be sufficient to show one has engaged in a conscious disregard of a substantial and unjustifiable risk that would cause death. However, absent such evidence, we cannot sustain a finding that Rollins was driving knowing that he could cause death, and by continuing to operate his vehicle, he evidenced a conscious disregard of that risk.
The State’s evidence simply does not establish that Rollins knew that his actions — crossing the center line, tailgating, and averting his eyes from the road— presented a substantial and unjustifiable risk that he might hit a car traveling in the opposite direction and kill someone in that car and that he consciously disregarded that risk. However, in order to support the lesser-included offense of misdemeanor negligent homicide, the proof must only show that Rollins should have been aware of that risk and his failure to perceive that risk constituted a gross deviation from the standard of care that a reasonable person would 17observe in the same situation.
Therefore, we engage in a secondary analysis to determine if the facts of this case can sustain a conviction for negligent homicide. The test for determining sufficient proof is whether there is substantial evidence to support the verdict. Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994). On appeal, we review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support it. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id.
The proof of Rollins’s negligence is ample, a conclusion that is supported by both the evidence and Rollins’s own appeal argument. In fact, in Utley v. State, 366 Ark. 514, 237 S.W.3d 27 (2006), our supreme court held, over the strong dissent of our Chief Justice, that crossing the center line is negligence — almost negligence per se. And, in the context of our current case — where we are unable to conclude that as a matter-of-law Rollins’s actions were reckless — we would be remiss if we failed to give at least some attention to the Utley dissent, where Chief Justice Hannah set out in persuasive language the difficulty in linking a criminally culpable mental state to a person who causes the death of another with an automobile. On this subject, and in the context not of recklessness, but of the lesser standard of negligence, Justice Hannah wrote:
Historically, liability for deaths in automobile accidents caused by common negligence have been resolved through civil litigation. Where the death has resulted from mere negligence in driving, criminal liability has not been imposed. “Where there was more than mere negligence, such as in the case of intoxication, high-speed Inflight from police, or negligence that arises from a gross deviation from how a reasonably prudent person would act, criminal liability has been imposed over the course of many years. [Footnote omitted.] While wandering over the centerline is certainly very dangerous, it is an occurrence that, unfortunately, is commonly witnessed in everyday driving. Many dangerous actions that inattentive drivers engage in do not give rise to criminal liability.
It appears that this change results from a change in analysis. Where before the focus was on the culpable mental state of the driver, the focus now is upon the severity of the injury that results. This is at odds with accepted law on criminal liability.
Even though Utley has been convicted of negligent homicide, why he drove over the centerline remains entirely unknown. If under the circumstances, Ut-ley should have been aware of the risk, and his failure to perceive it was a gross deviation from the care a reasonably prudent person would exercise under those circumstances, criminal liability might arise. See, e.g., Hunter v. State, B41 Ark. 665, 19 S.W.3d 607 (2000). However, we don’t know the answer to this question because proof was lacking. We don’t know what Utley perceived. No proof was offered. The State’s argument is simply that there could be no reasonable excuse. The majority agrees. The State argues that “[driving requires constant attention, appropriate responsiveness, and reasonable capability.” The facts of Hunter showed that Hunter knew what the road conditions were and still engaged in the affirmative act of pulling out into an oncoming lane to pass a log truck, on a hill, in the rain, despite double yellow lines statutorily prohibiting passing, and despite the fact that the road spray produced by the log truck was so great he could not see. In Hunter, the proof showed that Hunter perceived and disregarded quite a number of dangerous conditions. All we know in the present case is that Utley pulled at least seven feet into the other lane, and we don’t even know if it was an affirmative act. Even assuming it was inattention, mere inattention in driving has never been the basis of criminal liability until now.
The question that the majority opinion prompts is, are there any circumstances under which criminal liability would not arise if a person dies in an accident caused by a person who crosses the centerline? The answer is now “no.” A person who causes the death of another person when he or she crosses the cen-terline is now strictly liable under the criminal law if the prosecuting attorney chooses to bring a criminal action. While there is ostensibly qualifying language in the majority opinion, that the truck in this case was a garbage truck, characterized as a “large commercial vehicle,” the majority’s analysis will certainly be applied to all vehicles in the near future. This is because the reasoning underlying this opinion is not that the death was caused because a large commercial vehicle was involved but because, as the majority states, | ¡/‘driving on the wrong side of the road presents a substantial and unjustifiable risk that [a person] might hit a car traveling in the opposite direction and kill someone.” Again, I must note, that criminal liability under the negligent homicide statute arises when under the circumstances the person should have been aware of the risk and his or her failure to perceive it was a gross deviation from the care a reasonable, prudent person would exercise under the circumstances. Hunter, supra. There is no such proof in this case.
There is no question that the death of W.R. Purdue is a terrible tragedy, but the death of any person in a motor vehicle accident is a tragedy. The majority concludes that, “[a] person driving a garbage truck around a curve and on a bridge should be aware that driving on the wrong side of the road presents a substantial unjustifiable risk that he might hit a car traveling in the opposite direction and kill someone in that car.” While Utley’s alleged inattention may give rise to liability under the civil law, does it give rise to liability under the criminal law?
What happened to Utley? Did he doze off? Was he changing a CD or the radio? Did his mind wander? All of these acts are certainly acts of negligence, but are they acts of criminal negligence? Are they “a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation,” as required by Ark. Code Ann. § 2-2-202(4) (Repl.1997)? It would appear not.
Utley v. State, 366 Ark. 514, 518-21, 237 S.W.3d 27, 30-32 (2006). Despite the cogent questions raised by the dissent in Utley, the majority opinion is clear and is not only instructive but conclusive in our case. Rollins’s actions, predominantly his singular act of crossing the center line, amounted to negligence of a criminal degree.
Where the evidence presented is insufficient to sustain a conviction for a certain crime, but where there is sufficient evidence to sustain a conviction for a lesser-included offense of that crime, we may “reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it ... at some intermediate point, remand the ease to the trial court for the assessment of the penalty, or grant a new trial either | inabsolutely or conditionally.” Dixon v. State, 260 Ark. 857, 862, 545 S.W.2d 606, 609 (1977). We, therefore, modify the judgments of conviction to the Iesser-in-cluded offense of negligent homicide under Ark.Code Ann. § 5 — 10—105(b)(1) (Repl. 2006) and reduce each sentence to the maximum term of years for a Class A misdemeanor — one year — and the maximum allowable fine — $1,000. Ark.Code Ann. §§ 5-4-401(a)(5) and 5-4-201(b)(l) (Repl.2006).
Affirmed as modified.
GLOVER and MARSHALL, JJ., agree.
. Rollins argues that the trial court erred in denying his motion in limine and admitting certain items into evidence, namely, the results of tests performed on his blood samples, three glass pipes found in his vehicle, and the green pills found at the scene. This question becomes moot based on our resolution of this case, which in no way relied on any of the challenged evidence mentioned. | [
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ROBERT L. BROWN, Justice.
| jThis is an interlocutory appeal by the State of Arkansas from a circuit court order granting appellee Loretta Thread-gill’s motion to suppress. The State asserts that this court has jurisdiction under Arkansas Rule of Appellate Procedure-Criminal 3(a) (2010), which allows interlocutory appeals on behalf of the State from pretrial orders in a felony prosecution which grant motions to suppress seized evidence under Arkansas Rule of Criminal Procedure 16.2. We hold that this court lacks subject-matter jurisdiction over this matter because the circuit court’s order was based on the particular facts of this case, and, accordingly, the correct and uniform administration of criminal law does not require the court’s review, as required by Arkansas Rule of Appellate Procedure-Criminal 8(c). We dismiss the appeal.
At issue in this State appeal is whether the search warrant described the premises to be searched with particularity, which is mandated by Arkansas Rule of Criminal Procedure |213.2(b) (2010). The facts in the case were established at the June 18, 2010 hearing on Threadgill’s motion to suppress and by the affidavit filed in support of the search warrant. Pulaski County Sheriffs Department Investigator Marco Medina was approached by a confidential informant who told him that crack cocaine could be purchased from Tyrone Nutt. The informant told Medina that Nutt lived in the area of 25th Street and Lewis Street in Little Rock and described how such a purchase would take place. The informant then positively identified a picture of Nutt. On August 18, 2009, Medina arranged for the informant to execute a controlled buy from the residence. Medina followed the informant to a home on West 25th Street, and Medina and a surveillance unit watched as the informant entered and exited the home. After these events, the informant met Medina at a predetermined location where the informant gave Medina a substance purchased at the home. Field testing of the substance confirmed that it was crack cocaine.
On August 19, 2009, a second controlled buy was set up for the same house. The informant was taken to the home on West 25th Street, and Medina testified that he waited down the street while the informant went inside the residence. After the second controlled buy, the informant again returned with a substance that field tested positive as crack cocaine. At that point, Medina filled out an affidavit for a search warrant. In his affidavit, he identified a home with an address of “4218 W. 25th Street, Little Rock,” and with an elevated concrete porch. A search warrant was issued based on Medina’s affidavit. The search warrant described the place to be searched as:
|3A single family residence, white in col- or, commonly refered (sic) to as 4218 W. 25th Street, Little Rock, Pulaski County, Arkansas. The residence is on the north side of the roadway with the front of the residence facing south. An elevated concrete porch is affixed to the front of the residence adjacent to the front door of the residence. The numbers 4218 are clearly visible on the east side of the front porch.
On September 3, 2009, the search warrant was executed by Investigator Medina and SWAT team officers. Two grams of crack cocaine were seized from the residence as a result of the search.
After the search, Threadgill and Nutt were both arrested. Both were charged with possession of a controlled substance with intent to deliver, possession of drug paraphernalia, maintaining a drug premises, and two counts of endangering the welfare of a minor in the first degree. Threadgill moved to suppress the evidence obtained from the search pursuant to Arkansas Rule of Criminal Procedure 16.2 and claimed that police officers entered her property without a sufficient search warrant and without any exigent circumstances justifying a warrantless entry. As a result, she maintained that the search was presumptively unreasonable.
The circuit court held a hearing on Threadgill’s motion to suppress. At the hearing, both Investigator Medina and Threadgill testified. Medina stated that he drove the SWAT team to the residence where the informant had purchased crack cocaine and executed the | ¿search warrant. Medina further testified that after the warrant was served on that residence, he noticed that the address was actually 4210 W. 25th Street, not 4218 W. 25th Street as set out in his affidavit and the search warrant. When asked about the discrepancy, Medina testified that after the informant left the residence, he drove by the house quickly and simply misread the address as 4218.
Following this testimony, the circuit court heard testimony from Threadgill. She testified that she had lived at 4210 W. 25th Street for approximately three months before the search. She added that she lived there with her children, her children’s grandmother, and a friend. She stated that Nutt did not live at the residence but came by occasionally to visit their children. Threadgill also identified some pictures of her home that showed her elevated front porch as wood, not concrete, and she identified some pictures of the house next door to her home, which was 4218 W. 25th Street. She pointed out that the 4218 residence is a tan home with brick around the front and a small front porch made of concrete. The 4218 house also had a side door with a concrete porch and the numbers 4218 affixed to the right of the front door and porch.
After hearing the testimony and examining the pictures of the two houses at the suppression hearing, the circuit court heard arguments of counsel. The State contended that although the search warrant identified the wrong address, the remaining description of the residence in the search warrant satisfied the requirement for particularity for the place to be searched. Specifically, the State referred the circuit court to Walley v. State, 358 Ark. 586, 112 S.W.3d 349 (2003), in which this court held that a minor discrepancy in the physical description of the property to be searched is not normally fatal. Id. at 607, 112 S.W.3d at 361. The State added that the police officers would not have been able to see the wooden boards on Threadgill’s porch but that the search warrant described an elevated concrete porch and her home had an elevated porch. Further, the State claimed that the search warrant identified a white house, which was the color of Threadgill’s home, not a tan and brick one like the house next door. Threadgill’s counsel countered that the search warrant referred to the house next to Threadgill’s and that the description given could just as easily have applied to that house and not to her home. Following the hearing, the circuit court granted Threadgill’s motion to suppress the crack cocaine seized from her home. An order to that effect was entered on June 24, 2010.
Under Arkansas Rule of Appellate Procedure-Criminal 3(a) (2010), the State may-take an interlocutory appeal “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.” Rule 3(c) provides:
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.)
The State urges that this court has jurisdiction to hear this appeal because the circuit court erred by interpreting Arkansas Rule of Criminal Procedure 13.2(b) with respect to the particularity requirement and ignored controlling case law, which holds that highly technical attacks on search warrants based on minor discrepancies in a property’s physical description are neither favored by this court nor fatal to the warrant’s validity. We disagree.
As this court has frequently observed, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. See, e.g., State v. Boyette, 362 Ark. 27, 207 S.W.3d 488 (2005); State v. Pruitt, 347 Ark. 355, 64 S.W.3d 255 (2002). The former is a matter of right, whereas the latter is not derived from either the United States or Arkansas Constitution, nor is it a matter of right but is granted pursuant to Rule 3. State v. Nichols, 364 Ark. 1, 4, 216 S.W.3d 114, 116 (2005). Under Rule 3, we accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Id.
As a matter of practice, this court has only taken State appeals that are narrow in scope and involve the interpretation of the law. Nichols, 364 Ark. at 4, 216 S.W.3d at 116. This court does not permit State appeals merely to demonstrate the fact that the trial court erred. Id. Where the resolution of the issue on appeal turns on the facts unique to the case, the |7appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. Id. (citing State v. Williams, 348 Ark. 585, 75 S.W.3d 684 (2002)). This court has added that it will not even accept mixed questions of law and fact on appeal by the State. Nichols, 364 Ark. at 4, 216 S.W.3d at 116. Furthermore, we will not accept an appeal by the State where the circuit court has acted within its discretion after making an evidentiary decision based on the particular facts of the case or even a mixed question of law and fact. Id. at 4, 216 S.W.3d at 117.
We conclude that the issue raised by the State in the case at hand does not impact the uniform and correct administration of law. Rather, this case concerns a circuit court acting within its discretion to make an evidentiary decision after considering the particular facts and circumstances of this case. Indeed, the circuit court’s order granting Threadgill’s motion to suppress says “based upon the evidence and testimony introduced at the hearing held June 18, 2010, the pleadings of the parties, and argument of counsel.” Hence, it is clear that the court’s decision was premised on the facts of this particular case.
Our jurisprudence is not at odds with our decision today. In Nichols, for example, this court refused jurisdiction over an appeal by the State when the underlying issue was whether exigent circumstances compelled a warrantless entry into the ap-pellees’ home. Nichols, 364 Ark. at 1, 216 S.W.3d at 115. In that ease, a law enforcement officer had looked through the window of the house and observed a meth lab in operation. Id. at 2, 216 S.W.3d at 115. After detailing the circumstances surrounding the officer’s entry into the home, this court decided |sthat jurisdiction was improper under Rule 3 for two reasons. First, the circuit court’s decision to exclude the evidence obtained from the warrant-less search necessarily turned on the circuit court’s determination of the credibility of the officer. Id. at 5, 216 S.W.3d at 117. This court, of course, does not weigh or decide the credibility of witnesses. Id. (citing Jackson v. State, 359 Ark. 87, 194 S.W.3d 757 (2004)). As a second point, we noted that the issues surrounding the entry were mixed questions of law and fact and that this court does not accept appeals by the State involving such mixed questions. Nichols, 364 Ark. at 5, 216 S.W.3d at 117.
Likewise, in State v. Howard, 341 Ark. 640, 19 S.W.3d 4 (2000), cited in Nichols, this court lacked jurisdiction over a State appeal where the underlying issue was the adequacy of a property description in a search warrant. The search warrant in that case failed to include an address for a piece of rural property that was searched by police officers but did include a general description of the property. The circuit court found that the search warrant was invalid due to its inaccurate property description. That court specifically found 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).” Howard, 341 Ark. at 646,19 S.W.3d at 8. Much as in the instant case, the State claimed in Howard that the circuit court misinterpreted the Arkansas Rules of Criminal Procedure, that the attack was a technical attack on the search warrant, and that the property description given otherwise adequately identified the property to be searched. Id. at 646, 19 S.W.3d at 9. This court refused jurisdiction, however, and dismissed the appeal, holding that an appeal that raises the issues |9of application, not interpretation, of our criminal rules does not involve the “correct and uniform administration” of justice or the criminal law. Id. at 648, 19 S.W.3d at 10.
The State now urges in the case before us that this court has jurisdiction because the circuit court interpreted the same rule of criminal procedure, Rule 13.2(b)(iii), too narrowly in its ruling and that interpretation affects the uniform administration of justice. In this regard, the State points this court to State v. Earl, 333 Ark. 489, 970 S.W.2d 789 (1998), in which this court accepted jurisdiction of the State’s appeal after the circuit court granted a motion to suppress evidence found in the defendant’s truck following a traffic stop. The issue in Earl, however, was one of interpreting Arkansas Rules of Criminal Procedure 5.4 and 4.1. Furthermore, the opinion recognized that the case was not only about interpretation and application of the rules of criminal procedure, but would establish “important precedent.” Id. at 492, 970 S.W.2d at 790. The Earl opinion, in fact, recognized that this court had not made a direct statement on the issue presented or clarified Arkansas’s law in regard to war- rantless searches of vehicles following a traffic stop. In contrast, the issue before us today involving the particularity of facts set out in search warrants is not a novel issue for this court or one of first impression.
The State further relies on our holding in Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003), to support its contention that an incorrect physical address does not make a search warrant invalid per se. In Walley, the search warrant listed the physical address as 40 Nick Springs Road, rather than 440 Nick Springs Road, and this court ultimately decided not to |,0suppress the search following a direct appeal by the defendant. As the Walley case did not involve a State appeal, there was no analysis of Rule 3 and the jurisdictional point upon which the instant case turns. Accordingly, the Walley case is not precedent for this State appeal.
The circuit judge in the case before us weighed the facts and the credibility of the witnesses and decided that the description of Threadgill’s home was not made “with particularity,” as Rule 13.2(b) mandates. The State essentially contests the circuit court’s finding that the facts set out in the search warrant were not particular enough. That argument by the State merely emphasizes the point that this case was decided on its unique facts and does not involve the interpretation of the law or the uniform administration of justice, as required under Rule 3(c). As this court historically has not recognized appeals from the State which are grounded on the particular facts of the case, we dismiss this appeal.
Dismissed.
. Although Threadgill’s motion alleged that police officers conducted a "warrantless” search of her home, it is clear from the hearing that her argument is that the warrant was ineffective because it referred to the wrong street address and did not identify her home with particularity.
. The court orally denied the motion to suppress the same evidence with respect to Nutt because he had no standing to contest the search. That issue is not part of Threadgill’s appeal. | [
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LARRY D. VAUGHT, Chief Judge.
|, James Hubbard appeals from the judgment entered by the Circuit Court of Sear-cy County in favor of HomeBank of Arkansas, finding that Hubbard’s interest in cattle proceeds was subordinate to Home-Bank’s perfected first lien in the same proceeds. Hubbard argues on appeal that the trial court erred as a matter of law in granting HomeBank “a perfected security interest in the proceeds of [the] sale of cattle to which the bank’s debtor did not have title.” We disagree and affirm.
In 2000, Hubbard and his friend Jack Simpkins entered into an oral agreement for the sale of Hubbard’s cattle and the lease of his farm. Simpkins paid only a portion of the purchase price for the cattle, and Simpkins moved onto Hubbard’s farm where the cattle were located. Simpkins and his wife, in July 2007, borrowed in excess of $1.8 million from HomeBank. To | gsecure the repayment of the loan, the Simpkinses executed and delivered to HomeBank security agreements, which among other things, granted HomeBank a lien on all cattle the Simpkinses owned. HomeBank perfected its lien on the cattle by filing financing statements in the Office of the Circuit Clerk of Searcy County, Arkansas. In late 2008, Hubbard learned that Simpkins was not properly caring for the cattle. In January 2009, Hubbard sold the cattle at auction and received proceeds of $56,500. Hubbard deposited the proceeds into his account at HomeBank.
The Simpkinses subsequently defaulted on their HomeBank loans. HomeBank instituted suits against the Simpkinses (to foreclose its security interest) and against Hubbard (to assert a lien upon the proceeds of the cattle sale). The proceeds of the cattle sale were held in Hubbard’s account at HomeBank pending a bench trial.
Following the trial, the court entered a judgment on March 5, 2010, finding that the Simpkinses were indebted in excess of $1.8 million to HomeBank; that Home-Bank’s loan to the Simpkinses was secured by a perfected lien on the Simpkinses’ property, which included cattle; that Hubbard had an unperfected lien in the cattle; and that Hubbard sold the cattle owned by the Simpkinses and received $56,500 in cattle proceeds. Based oh these findings, the trial court concluded that Hubbard’s unsecured interest in the cattle proceeds was subordinate to HomeBank’s perfected first lien in the proceeds and awarded the proceeds to HomeBank. A judgment including these findings was filed on March 5, 2010, and Hubbard timely appealed on March 25, 2010.
|aBefore we can reach the merits of Hubbard’s appeal, we must take up Home-Bank’s October 6, 2010 motion to dismiss the appeal. In this motion, HomeBank argues that on March 16, 2010, eleven days after the judgment was entered, Home-Bank applied the cattle proceeds from Hubbard’s account to the Simpkinses’ indebtedness, which satisfied the judgment in full. HomeBank pointed out that Hubbard did not request a supersedeas bond or a stay of the judgment pending appeal. Therefore, HomeBank argues, Hubbard voluntarily satisfied the judgment, rendering the appeal moot. In response, Hubbard denies that he voluntarily paid the judgment and argues that HomeBank transferred the funds out of his account without notice and permission.
In Lytle v. Citizens Bank of Batesville, 4 Ark.App. 294, 630 S.W.2d 546 (1982), the appellee argued that the appeal was moot because the appellant had satisfied the judgment. There, the appellant stated that he was unable to post a supersedeas bond due to his financial condition, but when the appellee’s attorney indicated that he was going to execute the judgment, appellant borrowed money to satisfy it. Id., 680 S.W.2d at 547. Appellee claimed that these facts demonstrated that his payment was not voluntary. Id., 630 S.W.2d at 547.
In discussing when a satisfaction of a judgment renders an appeal moot, we stated
Some jurisdictions hold that the payment of a. judgment under any circumstances bars |4the payer’s right to appeal. However, in the majority of jurisdictions, the effect of the payment of a judgment upon the right of appeal by the payer is determined by whether the payment was voluntary or involuntary. In other words, if the payment was voluntary, then the case is moot, but if the payment was involuntary, the appeal is not precluded. The question which often arises under this rule is what constitutes an involuntary payment of a judgment. For instance, in some jurisdictions the courts have held that a payment is involuntary if it is made under threat of execution or garnishment. There are other jurisdictions, however, which adhere to the rule that a payment is involuntary only if it is made after the issuance of an execution or garnishment. Another variation of this majority rule is a requirement that if, as a matter of right, • the payer could have posted a supersedeas bond, he must show that he was unable to post such a bond, or his payment of the judgment is deemed voluntary....
We adopt the majority rule as the better reasoned rule. Thus, if appellant’s pay ment was voluntary, then the case is moot, but if the payment was involuntary, this appeal is not precluded. In applying this rule to the facts at bar, we must determine whether the payment made by appellant was voluntaiy or involuntary. In doing so, we believe that one of the most important factors to be considered is whether appellant was able to post a supersedeas bond at the time he satisfied the judgment. The record supports the conclusion that he could have done so.
Lytle, 4 Ark.App. at 296-97, 630 S.W.2d at 547 (emphasis added). Based on the majority rule, we dismissed the appeal because there was no evidence in the record that showed that the appellant requested the court to set the amount of a supersede-as bond or that showed his financial inability to pay such cost. Id. at 297, 630 S.W.2d at 547. To the contrary, the record demonstrated that the appellant could pay such costs in that he was able to borrow money to pay the judgment in full when faced with the threat of execution of the judgment. Id., 630 S.W.2d at 547. We stated, “[flor whatever reasons, appellant simply chose to forego his right to request a bond in an effort to stay the trial court’s judgment and any subsequent proceedings to enforce it.” Id. at 298, 630 S.W.2d at 547. Therefore, we held that the appellant’s payment was voluntary and dismissed the appeal as moot. Id., 630 S.W.2d at 548.
IsHomeBank, relying upon Lytle, contends that Hubbard’s appeal should also be dismissed. It argues that, as in Lytle, there is no evidence in the record that Hubbard sought to stay HomeBank’s execution of its judgment by seeking a stay or by requesting a supersedeas bond. We agree that Hubbard did not seek to stay the judgment or request a supersedeas bond, but we disagree that these facts are dispositive.
Instead, we liken the instant case to Reynolds Health Care Servs. v. HMNH, Inc., 364 Ark. 168, 217 S.W.3d 797 (2005) and Ward v. Williams, 354 Ark. 168, 118 S.W.3d 513 (2003). In Reynolds Health Care and Ward, after judgments were entered against the appellants, they appealed; however, they failed to post su-persedeas bonds, and the judgments were satisfied. Reynolds Health Care Sens., 364 Ark. at 181-82, 217 S.W.3d at 808-09 (judgment was satisfied when the sheriff levied on and later sold the appellant’s property); Ward, 354 Ark. at 175, 118 S.W.3d at 517 (trial court entered order vesting title to appellee in fee simple absolute). In both cases, the appellees claimed that the appellants’ appeals were moot because the judgments were satisfied. The supreme court rejected the ap-pellees’ arguments, holding that the judgments were not satisfied voluntarily by the appellants. Reynolds Health Care Servs., 364 Ark. at 182, 217 S.W.3d at 809; Ward, 354 Ark. at 182, 118 S.W.3d at 521. The court in these cases, both decided after Lytle, acknowledged that no supersedeas bond was filed by either appellant. Reynolds Health Care Servs., 364 Ark. at 182, 217 S.W.3d at 809 (stating that “ ‘one of the most important factors to be considered’ in determining whether a judgment was satisfied voluntarily is whether a supersedeas bond has been filed”); Ward, 354 Ark. at 182, 118 S.W.3d at 521. However, the voluntariness of the payment remains a factor to be | nconsidered. As stated by the Reynolds Health Care court, “the court must still consider as an additional factor the fact that the judgment was only satisfied as the result of the sheriffs levying a writ of execution on [the appellant’s] property.” Id., 217 S.W.3d at 809.
In the case at bar, Hubbard did not voluntarily pay money to HomeBank to satisfy the judgment. Unlike the appellant in Lytle, Hubbard did not borrow money to pay the judgment. Rather, HomeBank, without notice and authorization, transferred funds out of Hubbard’s account. This action was more akin to the involuntary satisfaction of judgments that occurred in Reynolds Health Care and Ward. Because we hold that Hubbard did not voluntarily satisfy the judgment in this case, we deny HomeBank’s motion to dismiss Hubbard’s appeal.
On the merits, Hubbard’s sole contention is that the trial court erred in granting HomeBank a perfected security interest in the proceeds of the sale of the cattle to which Simpkins had no title. His argument focuses on his point that Simp-kins did not have title to the cattle; therefore, HomeBank’s perfected security interest could not attach to it. He points to his uncontroverted testimony that according to his oral agreement with Simpkins, the title to the cattle did not pass to him until he had paid for them in full, which he had yet to do. He also points out that Arkansas appellate courts have recognized oral agreements for sale of personal property where the seller retains title to the personal property until the purchase price |7is paid. He claims that because he had such an agreement with Simpkins, all Simpkins owned was the right to own cattle after he finished paying the purchase price.
When a ease is tried by a trial court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous, or clearly against the preponderance of the evidence. Pine Meadow Autoflex, LLC v. Taylor, 104 Ark. App. 262, 264-65, 290 S.W.3d 626, 628 (2009). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, when considering all of the evidence, is left with a definite and firm conviction that a mistake has been committed. Robinson v. Villines, 2009 Ark. 632, at 7, 362 S.W.3d 870. However, a trial court’s conclusion on a question of law is reviewed de novo and is given no deference on appeal. Id. at 7, 870 S.W.3d at 874.
Hubbard’s point on appeal focuses on who had title to the cattle. However, title is not material in priority disputes over collateral. Arkansas Code Annotated section 4-9-203(a) (Supp.2009) provides that “[a] security interest attaches to the collateral when it becomes enforceable against the debtor with respect to the collateral, unless an agreement expressly postpones the time of attachment.” This section further provides that one of the three requirements to enforce a security interest against the debtor and third parties with respect to collateral is that “the debtor has rights in the collateral.” Ark. Code Ann. § 4-9-203(b)(2) |s(Supp.2009). Therefore, this section does not require that the debtor, the Simpkinses in this case, have title to the collateral in order for the secured party, HomeBank, to enforce its security interest. What is required is that the debtor have “rights in the collateral.”
While the UCC does not define “rights in the collateral,” in Wawak v. Affiliated Food Stores, Inc., 306 Ark. 186, 812 S.W.2d 679 (1991), our supreme court had the opportunity to construe the term. In Wawak, the appellants (sellers of a supermarket) sought declaratory judgment that their perfected security interest in inventory had priority over the perfected security interest in the same inventory of appellee (supermarket supplier) after the buyer declared bankruptcy. Because both parties had perfected security interests, the issue was whose interest was perfected first. Appellants’ security interest was perfected in April 1986. And while appellee’s security interest was filed in February 1986, appellants claimed that appellee’s security interest did not attach at that time because the debtor did not have rights in the inventory to convey in February 1986. Wawak, 306 Ark. at 188, 812 S.W.2d at 680. More specifically, appellants argued that while they contracted with the debtor for the sale of the supermarket in January 1986, and the debtor took possession and ran the store in February 1986, the final paperwork completing the sale was not completed until April 1986. Id., 812 S.W.2d at 680.
|9Our supreme court disagreed, stating: “Possession of the collateral, accompanied by a contingent right of ownership, has been held sufficient for a security interest to attach.” Wawak, 806 Ark. at 189, 812 S.W.2d at 680-81 (citing First Sec. Bank of Idaho v. Woolf, 111 Idaho 680, 726 P.2d 792 (Idaho App.1986)). The court concluded that the debtor had rights in the collateral in February 1986 based upon his possession and operation of the store (including his responsibility for profits and losses), from January 1986 to April 1986, when the sales transaction was completed. Wawak, 306 Ark. at 188, 812 S.W.2d at 680.
The instant case is very similar to Wa-wak. Hubbard and Simpkins entered into an oral agreement for the sale of the cattle and the lease of a farm in 2000. Simpkins moved onto the property and cared for the cattle until late 2008 or early 2009 when Hubbard sold them. These facts demonstrate that Simpkins had more than mere possession of the collateral. He cared for and maintained the cattle for more than eight years pursuant to an oral sales contract, which established his “rights in the collateral” sufficient for HomeBank to enforce its perfected security interest. Therefore, we affirm the trial court’s finding that Hubbard’s unsecured interest in the proceeds of the sale of the cattle was subordinate to HomeBank’s perfected security interest in the same proceeds.
Affirmed.
GLADWIN and MARTIN, JJ„ agree.
. HomeBank filed a satisfaction of judgment on October 1, 2010.
. Rule 8(a) of the Arkansas Rules of Appellate Procedure — Civil provides that a supersedeas is a written order commanding an appellee to stay proceedings on the judgment, decree, or order being appealed from and is necessary to stay such proceedings. Rule 8(c) provides that when an appellant desires a stay on appeal, he shall present to the court for its approval a supersedeas bond, but it does not require the posting of a bond in order to appeal.
. Hubbard does not challenge the finding that HomeBank perfected its lien on the Simpkins-es' cattle by filing a financing statement or that HomeBank’s perfected security interest trumped Hubbard’s unsecured claim.
. Hubbard cites Dobbins v. Lacefield, 35 Ark.App. 24, 811 S.W.2d 334 (1991); Lake Village Implement Co. v. Cox, 249 Ark. 733, 461 S.W.2d 108 (1970); Holman v. Nutt, 120 Ark. 446, 179 S.W. 811 (1915).
. The three requirements relevant to the instant case are found in Arkansas Code Annotated section 4 — 9—203(b)(1)—(3)(A), which provides that a security interest is enforceable against the debtor and third parties with respect to the collateral if (1) value has been given; (2) the debtor has rights in the collateral or the power to transfer rights in the collateral; and (3) the debtor has authenticated a security agreement that provides a description of the collateral. There are excep tions found in Ark.Code Ann. § 4-9-203(c)-(i), but they are inapplicable here. | [
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JOHN B. ROBBINS, Judge.
11 Appellant Danny Wayne Flippen appeals the order of the Sebastian County Circuit Court that granted the request of appellees Michael and Denise Jones to have Danny specifically perform his contract to purchase Michael’s house and that denied Danny’s request to have the purchase contract rescinded. Danny asserts the following points for reversal: (1) that the trial court clearly erred in ordering specific performance where Danny had an equitable right to rescind based upon Michael’s fraudulent failure to disclose certain defects and an absolute contractual right to rescind; and (2) that even if specific performance were [¡.warranted, the trial court clearly erred in rejecting Danny’s claim that Michael failed to mitigate his damages. We disagree with Danny’s arguments and affirm.
In 2004, Michael purchased a residence located in Fort Smith, Arkansas. The home was built in approximately 1980. During 2008 and 2009, Michael listed the property for sale with realtor Sue Vines of Ron Calhoun and Associates.
In marketing the property, Michael completed a Seller’s Property Information Disclosure Statement and a list of repairs during his ownership for view by potential home buyers. The Disclosure included questions regarding known defects, and Michael marked “no” when asked if he was aware of “prior or existing major structure defects” and “any cracks or settlement in slab, foundation or mason.” But, in the line spaces underneath that section, Michael wrote, “There has been some settling on property & deck. Repairs made to property & deck.” A typed list of prior repairs accompanying this Disclosure stated that, “TO CORRECT SETTLING OF THE DECK SUPPORTS WERE ADDED AND THE DECK WAS SHIMMED TO SOME SUPPORTS THAT HAD SETTLED.”
Danny executed a written offer to purchase the property on January 15, 2009, for $225,000, but Michael countered for a price of $230,000, which was accepted on January 16. The terms of the accepted offer included the right to a ten-day window within which Danny could employ a home inspector to fully examine the property. The inspection clause included a $500 repair limit, which meant that if repair costs exceeded $500, Danny had the option to either accept the property as is with a $500 credit at closing, or terminate the contract and | ^recover his earnest money. The offer included a provision that Danny would have the right to re-inspect all the inspection items immediately prior to closing to determine whether they were in normal working order and to determine whether all the requested and accepted repairs had been made.
Danny hired Lauren Tippett to perform the home inspection. Tippett provided Danny with a report of potential problems including trim separating from the master bedroom wall indicating settling, mold and mildew around an upstairs vent, a leak in the swimming pool, a jack left underneath the house, evidence of new cement pads and beams under the house, cracks in the masonry walls on the west side of the house, unsafe electrical lights hanging underneath the deck, and structural support lacking under the deck. Tippett made a handwritten list of these findings for Danny and specifically told Danny that he should employ an engineer to determine if the home was sufficiently repaired with regard to the structural issues.
Danny did not employ an engineer, but at the end of January, he tendered a list of requested repairs that included items such as the pool, the sprinkler system, and wallpaper, but not the structural issues. The requested repairs far exceeded $500. Michael’s response was to tender a General Addendum on February 3 that reduced the purchase price to $223,000 (a $7000 reduction in lieu of the majority of pool repairs), required Michael to be responsible to pay Luther Stem Pools & Spa for a repair job not to exceed $1,028.18, required Michael to be responsible for the sprinkler and wallpaper issues, and set closing for February 20. Danny signed the Addendum later that day on February 3, accepting those terms.
|4On February 6, Michael signed a six-month apartment lease. Danny returned to the property on February 9 to look over the house with his girlfriend and her daughters. On that viewing, Danny decided he wanted to walk away from the transaction. On February 10, Danny had Vines prepare a Termination of Real Estate Contract Addendum, which he signed, wherein he was prepared to forfeit his $500 earnest-money deposit to Michael. No reasons for termination were stated. Michael did not accept those documents as an agreement on termination.
Michael filed suit for specific performance on February 26. Danny answered and (1) sought rescission based upon Michael’s actual or constructive fraud in failing to disclose material defects in the home and based upon his contractual right to rescind prior to closing, and (2) asserted the defense of Michael’s failure to mitigate any alleged damages. Danny filled out another Termination of Real Estate Contract Addendum, which he sent by facsimile to Vines on March 2 but not to Michael. In that form, Danny sought return of his $500 earnest-money deposit, listing several reasons for termination, none having any relation to the initial list of repairs tendered to Michael. Danny filed amended answers in March and July in opposition to Michael’s complaint. The case was tried to the bench.
The parties each testified about the course of events leading to the lawsuit. Danny’s primary contention was that Michael’s disclosures did not reveal the seriousness of the structural problems and cracking in the masonry. Danny testified that had he known of the severity of those particular problems, he would not have purchased the home at any price. | fiBut, Danny also testified that his inspector told him he needed to hire an engineer to determine with certainty whether the repairs to date had remedied the problems with foundation support and settling, which he simply chose not to do.
The circuit judge found in favor of Michael on specific performance because there lacked any actual or constructive fraud. Specifically, the judge found that Michael revealed settling in his disclosures to prospective buyers; Danny’s home inspector noted the precise foundational issues Danny later contended were concealed from him; Danny chose not to heed his inspector’s recommendation to have an engineer inspect the structural issues to determine the home’s soundness; and even so, Danny went forward instead of terminating the contract at that time. The judge noted that Danny did not list any structural issues in his repair addendum tendered to Michael. The judge found Danny’s testimony at the hearing in direct conflict with the evidence — that being Danny’s claim at the hearing that he would not have offered to purchase the house if he had known of the masonry and foundation issues.
The judge found that Danny’s specifically requested repairs were addressed in the General Addendum upon which he and Michael agreed. He noted that although the form contract contained boilerplate language providing a right to re-inspect prior to closing, he found that it applied to the initial repairs requested and was “not designed to be a never-ending series of inspections which require continued expense by a seller with no ability to trust a buyer to follow through with a purchase.”
| (¡The judge awarded Michael $896.28 for real estate taxes paid, $1620 for unnecessary apartment rental, $1504.44 for mortgage interest, and 6% in prejudgment interest. The judge rejected Danny’s claim that Michael was duty-bound to mitigate his damages by attempting to sell the residence to another buyer, finding that no such duty arises in a specific-performance case related to the sale of real estate until a judicial determination is made that specific performance will not be granted. Danny appeals.
On appeal from a bench trial, we review the findings of the trial court de novo, but we do not reverse unless the findings are clearly erroneous or clearly against the preponderance of the evidence. Munzer v. Kushner, 2010 Ark. App. 196, at 4-5, 375 S.W.3d 647. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. We give due deference to the trial judge’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id.
Specific performance is an equitable remedy compelling performance of a contract on the precise terms agreed upon by the parties. Elder Constr. Co. v. Lane, 2010 Ark. App. 10, at 3-4, 370 S.W.3d 861. Because it is grounded in equity, trial courts have some latitude of discretion in granting or denying that relief, depending upon the inequities in a particular ease. McIllwain v. Bank of Harrisburg, 18 Ark. App. 213, 713 S.W.2d 469 (1986).
Danny contends that he presented a compelling case of fraud on Michael’s part in making false representations about the foundation and structural nature of the home. Even 17assuming that Michael misrepresented the condition of the home, we agree with the trial court that Danny could not have justifiably relied on that representation, nor was he damaged as a result. Justifiable reliance and resulting damages are required elements in a fraud case. Knight v. Day, 343 Ark. 402, 36 S.W.3d 300 (2001).
Danny learned through his own professional inspector’s report of the existence of potential structural and foundational issues, and he was urged to hire a professional engineer to determine whether the structure was sound or needed further repair. Danny had the option to terminate the contract or request those then-well-known potential structural issues to be repaired. Instead, Danny chose to go forward, renegotiating to a lower price and accepting Michael’s offer to repair other items Danny deemed important to fix prior to closing — namely the pool, the sprinkler system, and the wallpaper. And Michael rented an apartment in reliance on the agreed terms. See Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000) (estop-pel may be asserted if seller acts in reliance on buyer’s expression of intent to purchase). Danny’s attempt to rely on an arguably vague owner’s disclosure as an “out” is not compelling. This issue required resolution by the trial court’s weighing the equities, and Danny could not establish that he was fraudulently induced to agree to buy this house. We hold that the trial court did not clearly err in so finding.
As to the duty to mitigate, we hold that the trial court correctly determined that this duty did not arise pursuant to the Mclllwain opinion. Danny does not present any legal authority on point to contradict this statement of the law in Arkansas. Nor does Danny ^specifically take issue with the particular categories or amounts awarded as damages. We hold that the trial court correctly found that Michael did not have a duty to mitigate prior to a determination of whether specific performance of this real estate sale would be ordered.
After our de novo review, we are not left with a distinct and firm impression that a mistake was committed in granting this equitable remedy to Michael. We, therefore, affirm the trial court’s decision.
Affirmed.
PITTMAN and GRUBER, JJ., agree.
. Denise Jones is a named party and appellee, but she did not participate actively in any fashion with regard to this cause of action. While she and Michael Jones remained married, she did not reside in the residence, her name was not on the title, and she permitted Michael to act on her behalf with regard to any matters concerning the residence. For clarity, we will only refer to Michael in the body of this opinion. | [
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DOUG MARTIN, Judge.
| Appellant Johnny Smith appeals from the Workers’ Compensation Commission’s denial of benefits upon finding that Smith failed to establish that he sustained a com-pensable back injury as a result of a fall that occurred on October 2, 2008, or from performing numerous strenuous activities during his employment for appellee Commercial Metals Company (CMC). Smith argues on appeal to this court that the Commission’s decision is not supported by substantial evidence and that the Commission incorrectly applied the law. We affirm the Commission’s decision.
At a hearing before the administrative law judge (ALJ) on November 5, 2009, fifty-one-year-old Smith testified that he had worked for twenty-seven years as a frame assembler in the manufacture of furniture at the Alan White Company pri- or to working for CMC. Smith testified that his work at Alan White involved fastening arms, each weighing | ¡.approximately twenty-five pounds, to the bottom part of couches. Once construction of a piece of furniture was complete, Smith and a co-worker lifted the furniture and stacked the pieces of furniture four high with the assistance of a jack. Smith insisted that he never experienced any difficulty performing his job duties at Alan White.
Smith acknowledged, however, that he saw Dr. David Williams in 2004 with complaints of joint pain and arthritis. Specifically, Dr. Williams’s progress notes indicate that Smith complained of stiffness in his joints and back pain. Moreover, Dr. Williams reported, “[Smith] says he has had pain all over for years.” Dr. Williams noted that Smith was working as an assembler at Alan White at the time of the visit. Smith testified that Dr. Williams prescribed medication, which Smith took but later discontinued and instead used over-the-counter medications to treat his pain.
When the Alan White Company relocated in May 2005, effectively ending Smith’s employment there, Smith filed for unemployment benefits and learned that he was eligible for retraining. Smith attended the University of Arkansas at Hope for two years and became certified in industrial technology. Smith testified that he did not experience aches and pains every day since his treatment with Dr. Williams in 2004; rather, it depended on the activities he performed.
In May 2007, Smith began working for CMC, which manufactures steel joists. Smith worked as both a “rigger” and machine operator. Smith explained that, as a rigger, he was required to lift steel joists, which varied in weight but could weigh several hundred pounds, hover his head with the assistance of co-workers. Smith testified that he also performed the duties of a machine operator, which required cutting steel for the joists and entailed lifting and carrying buckets weighing fifty pounds or more.
On November 25, 2008, while working for CMC, Smith went to Dr. James Cham-bliss complaining of low-back pain that spread to his right hip and radiated down his right leg. Smith was asked by counsel for appellee what precipitated his visit to Dr. Chambliss, and Smith testified:
I was thinking that I had arthritis and that it had gotten worser [sic] or it was getting real bad and I just wanted to know was it the same thing that was happening with me in '04, because I didn’t understand what was going on and that’s what I was thinking that it was.
Dr. Chambliss’s records dated November 25, 2008, indicate that Smith reported that his back pain had started two weeks prior to the visit. In the report, there was no reference to a work-related injury. Dr. Chambliss ordered an MRI, which was performed on December 5, 2008, and showed that Smith suffered from lumbosa-cral degenerative disk disease, along with “a notable right paracentral/foraminal disk bulge at L4-5.” Dr. Chambliss referred Smith to Dr. Lee Buono, a neurosurgeon.
On December 22, 2008, Smith reported to CMC that he sustained a back injury. Smith completed a Form AR-N, on which he listed his date of injury as November 24, 2008, which was the day prior to his first visit with Dr. Chambliss. On the form, Smith related that, on November 23, 2008, he could “hardly get out of bed” and that the pain got worse “from |4there.” Smith also indicated on the form that he did not know he had a back injury and explained that his doctor told him that his back injury had “happened] a little at a time.”
On January 7, 2009, Dr. Buono diagnosed a large right-sided disk herniation at L4-5 that was compressing the exiting L5 nerve root. In his notes, Dr. Buono stated that Smith’s low-back pain and right-sided leg pain “started October 24, 2008, when he was working and he was moving a box at work.” On January 16, 2009, Smith underwent surgery by Dr. Buono to remove the disk herniation and decompress the nerve root. Dr. Buono released Smith from his care with no restrictions on March 16, 2009. Smith was laid off from his employment at CMC on May 29, 2009.
On June 17, 2009, Dr. Buono authored a letter addressed “To Whom It May Concern,” in which he reported that Smith suffered from degenerative disk disease that “was at least in part due to a lifetime of hard labor and heavy lifting on the job.” Similarly, Dr. Chambliss authored a letter dated September 16, 2009, in which he stated:
My first evaluation of Johnnie Smith was November 25, 2008 for symptoms of low back pain with radiation of pain down his right leg. He had reported that the symptoms had started 2 weeks prior to this date while at work. He reports that he does numerous strenuous activities with heavy lifting at his current occupation. He underwent evaluation and treatment of this condition from me and a neurosurgeon. It is my opinion that his condition could have been caused or worsened by his occupation.
On September 29, 2009, Dr. Chambliss reported in a “Physician’s Workers’ Compensation Questionnaire” that Smith told him that he had tripped and fallen on or about October 2, 2008, while employed at CMC. Dr. Chambliss reported that, according to Smith, |fihe lost his footing when stepping up onto a platform while carrying an armful of shop books and “fell hard onto his right side.” The questionnaire reflects that, although Smith was sore, he did not seek medical attention at that time because he did not realize that he was severely injured. The questionnaire also indicates that Smith reported suffering from some general back pain for approximately one month and that he had developed right-leg pain approximately two to three weeks before seeing Dr. Chambliss on November 25, 2008. Also, Smith reported that, since he began working for CMC, he had no problems with his back or legs prior to October 2, 2008. Based on Smith’s history, Dr. Chambliss’s examination, and the diagnostic tests, Dr. Cham-bliss checked “yes” on the questionnaire, indicating that Smith’s back and leg pain was the result of a work-related injury that occurred on October 2, 2008, and was the major cause of his need for treatment.
At the hearing before the ALJ, Smith testified that on October 2, 2008, he was carrying a thick stack of paperwork and books when he tripped and fell to one knee and then over onto his right side. Smith testified that he did not think he was hurt at the time. Smith’s co-worker Johnny Estes testified that, after hearing “a thud,” he turned and saw Smith on his knees. Estes testified that he informed Smith’s supervisor about the incident.
Smith’s supervisor, Lavelle Cole, testified that, although he was not at work on October 2, 2008, he asked Smith about the fall the next day. Cole testified that Smith did not state that he was experiencing any medical problems at that time and Smith did not demonstrate any difficulty performing his job following the incident. Cole further testified |Bthat he recalled Smith mentioning one time following the fall that his back hurt, but Cole was not certain whether he heard this single complaint one month following the fall or three months later.
Larinda Clayton, CMC’s safety and environmental manager, testified that she heard about the incident involving Smith from the corporate office before she heard it from Smith. According to Clayton, Smith did not tell her specifically what had happened to hurt his back, and Clayton testified:
He said that he had been having pain in his leg and that he had had arthritis and that he had been treating with a doctor for that, and it was the doctor, after MRI, who had told him that it was a back injury, and he said that it wouldn’t — he would have filed a claim if he had thought that his back was hurt, but that he just thought it was his arthritis. There wasn’t anything specific that he said that he could attribute it to, because he didn’t know that he had hurt his back.
Clayton testified that months after the initial paperwork was completed, Smith informed her that he had tripped and fallen at work and asked her if she would find documentation to support his claim. Clayton testified that CMC uses ORO (others reminding others) reports, on which employees anonymously note their observations of possible safety concerns. Clayton testified that, in response to Smith’s inquiry, she located an ORO report dated October 2, 2008, that reflected that someone had tripped over a splice bar on a different line than that on which Smith worked. Clayton relayed her finding of the ORO report to Smith.
Smith testified that he arrived at the date of October 2, 2008, as the date on which he fell at work, based on what Clayton told him about finding the ORO report. Smith insisted that he knew he fell at work in October and assumed October 2, 2008, was the date on which |7he fell; however, he denied tripping over a splice bar at CMC in October. Smith further testified that, from the time he first saw Dr. Cham-bliss until he received the MRI results, he did not think his back injury was work related. He further testified that he believed his back injury was work related only after the MRI results indicated he had a bulging disk. When asked by counsel for appellee what made him think his back injury was work related, Smith testified, “Because I knowed [sic] that that was the only place that I had been doing any hard labor or any hard work at, and that’s why I figured that it had to be something that I had done at the job that had caused it.”
The ALJ found that Smith failed to establish by a preponderance of the evidence that his spinal abnormalities were causally related to a fall that occurred on October 2, 2008, or as a result of his performance of numerous strenuous activities in connection with his employment at CMC. In reaching this conclusion, the ALJ determined that Dr. Chambliss’s opinion, which was the best evidence supporting Smith’s contention that his back injury resulted from his fall at work, was entitled to no weight in that the history provided to him by Smith “contains statements of material fact which are not accurate.” The ALJ further rejected Smith’s contention that the major cause of his need for treatment on November 25, 2008, was his employment at CMC. Finding no compensable injury, the ALJ did not address Smith’s request for an award of benefits given that the issues in that regard were rendered | Rmoot. In an opinion dated August 19, 2010, the Commission affirmed and adopted the ALJ’s opinion and findings in a two-to-one vote.
Typically, on appeal to this court, we review only the decision of the Commission, not that of the ALJ. Daniels v. Affiliated Foods Sw., 70 Ark.App. 319, 17 S.W.3d 817 (2000). In this case, the Commission affirmed and adopted the ALJ’s opinion as its own, which it is permitted to do under Arkansas law. Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark.App. 338, 107 S.W.3d 876 (2003). Moreover, in so doing, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. See ITT/Higbie Mfg. v. Gilliam, 34 Ark.App. 154, 807 S.W.2d 44 (1991). Therefore, for purposes of our review, we consider both the ALJ’s order and the Commission’s majority order.
We review a decision of the Commission to determine whether there is substantial evidence to support it. Rice v. Ga. Pac. Corp., 72 Ark.App. 148, 35 S.W.3d 328 (2000). On appeal to our court from a denial of benefits, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000). A substantial basis exists if fair-minded persons could reach the same conclusion when considering the same facts. Farler v. City of Cabot, 95 Ark.App. 121, 234 S.W.3d 352 (2006). Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive | aprovince of the Commission, and when there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Neal v. Sparks Reg’l Med. Ctr., 104 Ark.App. 97, 102, 289 S.W.3d 163, 167 (2008). The Commission may not arbitrarily disregard medical evidence or the testimony of any witness. Roberts v. Whirlpool, 102 Ark.App. 284, 284 S.W.3d 100 (2008).
On appeal, Smith contends that the Commission’s decision is not supported by substantial evidence. We disagree. To prove a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, the claimant must establish by a preponderance of the evidence: (1) an injury arising out of and in the course of employment; (2) that the injury caused internal or external harm to the body which required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in ArkCode Ann. § 11 — 9— 102(16), establishing the injury; and (4) that the injury was caused by a specific incident identifiable by time and place of occurrence. Ark.Code Ann. § 11 — 9— 102(4)(A)(i) (Supp.2009).
A claimant seeking benefits for a gradual-onset injury to the back 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 harm to the body that required medical services or resulted in disability or death; and (3) the injury was the major cause of the disability or need for medical treatment. Wal-Mart Stores, Inc. v. Leach, 74 Ark.App. 231, 48 S.W.3d 540 (2001); ArkCode Ann. § 11-9-102(4)(E)(ii) (Supp.2009). “Major cause” means |inmore than fifty percent of the cause. ArkCode Ann. § ll-9-102(14)(A) (Supp.2009). In addition, as with injuries caused by a specific incident identifiable by time and place of occurrence, objective medical evidence is necessary to establish the existence and extent of the compensa-ble injury. Wal-Mart Stores, Inc., supra.
The Commission concluded that symptoms that began six weeks after Smith’s fall on October 2, 2008, were not “logically attributable” to the fall. The burden is, of course, on the claimant to prove a causal relation between his condition and his employment. Holland v. Malvern Sand & Gravel Co., 237 Ark. 635, 374 S.W.2d 822 (1964). 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. See Wal-Mart Stores, Inc. v. Van- Wagner, 387 Ark. 443, 990 S.W.2d 522 (1999) (citing Stephens Truck Lines v. Millican, 58 Ark.App. 275, 950 S.W.2d 472 (1997)). In Hall v. Pittman Construction Co., 235 Ark. 104, 105-06, 357 S.W.2d 263, 264 (1962) (citations omitted), our supreme court stated:
Cases such as this one present problems that gradually and almost imperceptibly progress from issues of law to issues of fact. If the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the commission’s refusal to make an award. But if the disability does not manifest itself until many months after the accident, so that reasonable men might disagree about the existence of a causal connection between the accident and the disability, the issue becomes one of fact upon which the commission’s conclusion is controlling.
Inin providing his medical history to Dr. Chambliss, Smith gave different accounts of when his symptoms began. Whereas Dr. Chambliss’s records dated November 25, 2008, indicate that Smith began experiencing back pain two weeks before his first visit, the questionnaire Dr. Chambliss completed on September 29, 2009, reflects that Smith had been experiencing back pain for approximately one month and leg pain for two to three weeks prior to the November 2008 visit. Also, Dr. Chambliss’s records from the November 25, 2008 visit contain no mention of Smith’s having suffered any injury related to his employment at CMC, but the questionnaire Dr. Chambliss completed nearly one year after his initial visit identifies the fall at work on October 2, 2008. Given these inconsistencies, the Commission was entitled to find that Smith’s recollection was not trustworthy and that Dr. Chambliss’s opinion was thus entitled to no weight because it was based on Smith’s inaccurate statements.
Further compounding the confusion is Dr. Buono’s office report from January 2009 in which Smith stated that his symptoms began when he was moving a box at work on October 24, 2008. When Smith finally reported a back injury to his employer on December 22, 2008, which was nearly three months after his fall on October 2, 2008, Smith still did not relate the back injury to his fall or any specific incident at work. Neither the more contemporaneous medical reports nor the testimony of Smith’s co-workers indicate that Smith fell hard onto his right side when he tripped on October 2, 2008; rather, the testimony was that Smith fell to his knees. By his own account, Smith did not think he had sustained a work-related injury and did not begin thinking about a specific incident to which his back |12injury might be attributable until after CMC denied his claim for benefits as a result of a gradual-onset back injury. Given the lapse of time between Smith’s fall and the manifestation of symptoms, reasonable men might disagree about the causal connection between Smith’s accident and his disability.
Dr. Buono, who opined that Smith’s degenerative disk disease was due in part to a lifetime of hard labor and heavy lifting on the job, did not attribute Smith’s degenerative disk disease to either an incident at CMC or to his work activities at CMC in general. Further, Smith was employed at CMC for only one and one-half years, while his employment at Alan White spanned a period of twenty-seven years. The Commission found that Smith’s job duties, as he described them, at CMC did not appear to be more strenuous than the job duties he performed for twenty-seven years at the Alan White Company. Also, Smith specifically complained of back pain in 2004 and reported experiencing pain “all over” for years.
Based on the foregoing analysis, as well as our standard of review in viewing the evidence in the light most favorable to the Commission’s decision, we hold that there was substantial evidence to support the Commission’s determination that Smith failed to establish a compensable back injury as a result of a fall on October 2, 2008, or as a result of performing numerous strenuous activities in connection with his employment at CMC.
Smith’s second point on appeal is that the Commission erred in its application of the law with respect to the “major cause” requirement. Smith argues that Dr. Chambliss opined that Smith’s work-related accident was the major cause for Smith’s need for treatment of his |1sback injury and that no other doctor contradicted Dr. Chambliss’s opinion. In making this argument, Smith disregards the Commission’s finding that Dr. Chambliss’s opinion is entitled to no weight. The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Jones v. Wal-Mart Stores, Inc., 100 Ark.App. 17, 262 S.W.3d 630 (2007).
Smith further cites and relies on Parker v. Atlantic Research Corp., 87 Ark.App. 145, 189 S.W.3d 449 (2004), in which this court held that the Commission was clearly wrong in its determination that “major cause” categorically cannot be established by a showing that an asymptomatic preexisting condition became symptomatic, thus requiring treatment, due to a work-related aggravation of that condition. Parker is clearly distinguishable from the case at bar. Although Smith claims that there is “no evidence whatsoever” that he had back problems that required treatment prior to working at CMC, Smith specifically testified that he sought and obtained treatment from Dr. Williams for back pain in 2004. Moreover, Smith’s testimony is supported by Dr. Williams’s progress notes, contained within the record on appeal, in which Dr. Williams noted that Smith had been experiencing pain for several years. In any event, Smith did not raise this argument before the ALJ or the Commission, and we do not consider issues that are raised for the first time on appeal. See Harding v. City of Texarkana, 62 Ark.App. 137, 970 S.W.2d 303 (1998).
Affirmed.
VAUGHT, C.J., and GLADWIN, J., ■ agree.
. The sole dissenting Commissioner would have found that Smith proved that he sustained a compensable back injury and awarded indemnity and medical benefits. | [
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JOSEPHINE LINKER HART, Judge.
|TIan Hunter Doyle appeals from the revocation of his probation for which he received a 120 month sentence in the Arkansas Department of Correction, with 48 months suspended. On appeal, he argues that the trial court erred in “sentencing [him] out of drug court.” We affirm.
On September 13, 2006, Doyle pleaded guilty to commercial burglary, breaking or entering, two counts of theft of property, and first-degree criminal mischief. After he was sentenced to 60 months’ supervised probation, he was referred to the Jackson County Drug Court Program. One of the conditions of his probation was that he abide by all the provisions of the drug-court program.
On three occasions, prior to the revocation that is the subject of this appeal, Doyle 12violated the terms of the drug-court program and received “sanctions.” His first violation was for public intoxication and being a minor in possession of alcohol, and his sanction was five days in the county jail. His second violation was testing positive for cocaine, and his sanction was fourteen days in the county jail. Doyle’s third violation occurred when he again tested positive for cocaine. At that time, the State petitioned to revoke Doyle’s probation. The trial court denied the State’s petition, but it conditioned Doyle’s remaining in the drug-court program on his agreeing to serve one year in a regional punishment facility. The nature of his confinement is disputed in this case; Doyle characterizes it as “incarceration,” while the State contends that the year represented residential drug treatment.
Subsequent to his stay in the regional punishment facility, the State alleged that Doyle again violated the terms and conditions of his probation by being charged with driving while intoxicated, failure to wear a seatbelt, careless and prohibited driving, and for failing a drug test on February 20, 2008. In its amended petition, the State listed these new grounds for revocation as well as his previous violations and his transgressions in the regional punishment | ^facility. At a hearing on this petition, Jackson County Probation and Parole Officer Marcus Guthrie testified that he was supervising Doyle’s probation and caused the revocation petition to be filed. Guthrie testified that Doyle tested positive for cocaine in his February 20, 2008 drug test and introduced certified copies of Doyle’s guilty pleas for DWI, failure to wear a seatbelt, and careless driving. Doyle’s previously assigned probation officer, Brandy Green, also testified about Doyle’s history of violations prior to and including his stay at the regional punishment facility. The trial court revoked Doyle’s probation without making specific findings as to which violation it relied on.
On appeal, Doyle asserts that, upon entry into the drug-court program, he was given a handbook that provided rules governing his sanctions. He argues that according to the rules in the handbook, the trial court was not “authorized” to send him to a regional correctional facility, and therefore the action by the trial court “could only be classified as a probation revocation.” Further, he asserts that in revoking his probation, the trial court relied upon “a number of the same allegations [upon which] it based its imposition of its third sanction,” which constitutes double jeopardy. Doyle also asserts that the trial court’s imposition of the third sanction “breached” its “contract”' with him, which released him from his “obligations.” We find this argument unpersuasive.
In a revocation proceeding, the State must prove its case by a preponderance of the evidence, and on appellate review we do not reverse the trial court’s decision unless it is clearly against the preponderance of the evidence. Anglin v. State, 98 Ark.App. 34, 249 |4S.W.3d 836 (2007). Where multiple offenses are alleged as justification for revocation of probation, the trial court’s finding that revocation is justified must be affirmed if the evidence is sufficient to establish that the appellant committed any one of the offenses. Farr v. State, 6 Ark.App. 14, 636 S.W.2d 884 (1982).
Regarding Doyle’s “double jeopardy” argument, we note that Doyle does not argue that there was insufficient evidence that he committed the offense of driving while intoxicated or that the proof was inadequate that he tested positive for cocaine on February 20, 2008, or that either conduct was not a sufficient basis for revoking his probation. Accordingly, we hold, as we did in Farr, that either ground requires us to affirm and that we need not consider the remaining allegations.
Likewise, we reject his contention that placing him in a regional punishment facility “could only be classified as a probation revocation.” We note that our drug-court statute not only authorizes a one-year treatment program, it mandates that the treatment be “at least (1) year in length.” Ark.Code Ann. § 16-98-201 (Repl.2006). Further, Doyle’s admission at the revocation hearing that he consented to going to the residential drug treatment at the regional punishment facility satisfies the statutory condition that participation in the program be with “agreement of the parties.” Id.
As to Doyle’s arguments concerning the trial court’s failure to abide by the drug-court | fihandbook, we hold that we are precluded from considering it on the merits because Doyle failed to have the handbook admitted into evidence. In Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002), our supreme court stated that when a dispute arises over the meaning of a plea agreement, the appellate court is required to discern the intent of the parties as expressed in the plain language of the agreement viewed as a whole. Without the handbook, we are unable to properly review this issue. It is axiomatic that an appellant bears the burden of producing a record that demonstrates error, and on appeal we do not consider matters outside of the record. Burkhalter v. State, 330 Ark. 684, 956 S.W.2d 171 (1997).
Affirmed.
GLOVER and HENRY, JJ„ agree.
. Included in the record is a document styled "Letter of Completion” that states:
This is to verify that Ian Doyle has completed the Long Term Residential Treatment Program at Northeast Arkansas Community Corrections Center. This program is licensed by the Arkansas Alcohol and Drug Abuse Prevention and certified as a Residential Program by the American Corrections Association.
The letter specifically noted that Doyle "attended all groups and classes in Orientation, Main Treatment, and Relapse prevention/Reentry phases.”
. We are mindful that this court has held that double jeopardy does not strictly apply to revocation proceedings. Lawrence v. State, 39 Ark.App. 39, 839 S.W.2d 10 (1992). | [
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PER CURIAM.
| Appellant Darius Jackson appeals from his conviction for capital murder and his sentence to life imprisonment without parole. Because his brief fails to comply with our rules, we order rebriefing.
Our abstracting rule, provides, in pertinent part:
(5) Abstract. The appellant’s abstract or abridgment of the transcript should consist of an impartial condensation, without comment or emphasis, of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding |2of all questions presented to the Court for decision.... Not more than one page of the transcript shall in any instance be abstracted without a page reference to the transcript. In the abstracting of testimony, the first person (i.e., “I”) rather than the third person (i.e., “He, She”) shall be used. The Clerk will refuse to accept a brief if the testimony is not abstracted in the first person or if the abstract does not contain the required references to the record. Whenever a map, plat, photograph, or other similar exhibit must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and include it in the Addendum with a reference in the abstract to the page in the Addendum where the exhibit appears unless this requirement is shown to be impracticable and is waived by the Court upon motion.
Ark. Sup. Ct. R. 4-2(a)(5). In addition, in life-imprisonment cases, such as this one,
the Court must review all errors prejudicial to the appellant in accordance with Ark.Code Ann. § 16-91-113(a). To make that review possible, the appellant must abstract, or include in the Addendum, as appropriate, all rulings adverse to him or her made by the circuit court on all objections, motions and requests made by either party, together with such parts of the record as are needed for an understanding of each adverse ruling. The Attorney General will make certain and certify that all of those objections have been abstracted, or included in the Addendum, and will brief all points argued by the appellant and any other points that appear to involve prejudicial error.
Ark. Sup. Ct. R. 4-3(h) (2008).
Rule 4-2(b)(3) sets forth the procedure to be followed when an appellant has failed to supply this court with an adequate brief:
(3) Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any ^deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
Ark. Sup. Ct. R. 4-2(b)(3).
In reviewing Jackson’s brief and record, we have found the following deficiencies in his brief, including, but certainly not limited to: (1) the failure to abstract the renewals of his direeted-verdict motion; (2) the failure to abstract the testimony of the State’s rebuttal witness; (3) the failure to abstract objections adverse to Jackson made during closing arguments; (4) the failure to reference the record in certain portions of the abstract; (5) the failure to abstract a certain question posed by the jury; (6) the failure to reproduce in the addendum the exhibits Jackson wished reviewed in conjunction with his arguments on appeal, including his statements to police; and (7) the failure to reference the record in his abstract using the actual page numbers of the record and not the page numbers for each ^hearing or trial transcript. In addition, Jackson’s abstract of his trial is not sequential; instead, portions of the trial are abstracted out of order and are sometimes duplicated, making it difficult to follow the testimony and events of the trial.
Because Jackson has failed to comply with our rules, we order Jackson to file a substituted brief, which complies with our rules, within fifteen days from the date of entry of this order.
Rebriefing ordered.
. We further note some confusion regarding the circuit court's order appointing counsel. Not only does the order find Jackson indigent and appoint the Public Defender as Jackson’s counsel, the order was entered after Jackson's notice of appeal was filed. “After the notice of appeal of a judgment of conviction has been filed, the appellate court shall have exclusive jurisdiction to relieve counsel and appoint counsel.” Ark. R.App. P.-Crim. 16(a) (2008). Thus, it appears that Jackson’s cur rent counsel has not yet been appointed to represent him.
. While the State did, in accordance with our rules, provide a supplemental abstract that included adverse rulings to Jackson that he failed to abstract, these certain objections were not abstracted by either party.
. Instead of reproducing the exhibits, Jackson has merely included the court reporter's introductory page for each exhibit. These essentially blank pages are of no assistance to this court. | [
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JOSEPHINE LINKER HART, Judge.
| iKrissy Thompson appeals from the grant of summary judgment in favor of appellee, Sparks Regional Medical Center (Sparks). On appeal, she argues that the trial court erred in granting summary judgment because she stated a claim under the Emergency Medical Treatment and Active Labor Act (EMTALA) and Sparks owed a duty of care to her. We affirm.
On Friday, March 14, 2008, Thompson suffered a severe degloving injury in a motorcycle accident. An ambulance transported her to the emergency room at St. Edward Mercy Medical Center (St. Edward). Dr. William Paul King, an emergency-room physician at St. Edward, saw Thompson at 6:86 p.m. St. Edward did not have a plastic surgeon on call. Dr. King spoke with plastic surgeon Dr. James Kelly who was on call at Sparks that night; however, Dr. Kelly’s hospital privileges had been revoked at St. Edward, and he refused to 12treat Thompson.
Thompson’s father, who was a registered nurse and nursing supervisor at Crawford Memorial Hospital (Crawford), called the emergency room at Sparks and spoke to charge nurse Jennifer (Kinnemer) Hillis. At the request of Thompson’s father, Hillis called Dr. Kelly at home, and Dr. Kelly informed Hillis that he would not accept Thompson as a patient because she was already being treated at St. Edward. In a subsequent telephone conversation, Hillis informed Thompson’s father that she did not have the authority to admit patients or require a physician to do so. Hillis transferred Thompson’s father to nurse supervisor, Deborah Gale, who confirmed that a nurse did not have the authority to admit patients or refer patients to physicians. She did, however, inform Thompson’s father that he could bring his daughter to Sparks’s emergency room and be treated. Thompson never presented at Sparks.
Subsequently, Thompson’s father spoke to an emergency-room physician at Crawford who called plastic surgeon Dr. Roger Bise who resided in Fort Smith. Dr. Bise arrived at St. Edward fifteen minutes later and began treating Thompson.
Thompson brought suit against St. Edward, Dr. King, Dr. Kelly, Sparks, and five John Doe defendants. She subsequently non-suited Dr. Kelly. After Sparks prevailed in its summary-judgment motion, Thompson non-suited Dr. King, St. Edward, and the John Doe defendants to prosecute this appeal.
Summary judgment is to be granted by a trial court only when it is clear that there Rare no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Jackson v. Sparks Reg’l Med. Ctr., 375 Ark. 533, 294 S.W.3d 1 (2009). Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable minds might reach different conclusions from those undisputed facts. Id. On appeal, we determine if summary judgment was appropriate based on whether the evi-dentiary items presented by the moving party in support of its motion leave a material question of fact unanswered. Id.
Thompson first asserts that the trial court erred in granting summary judgment because she stated a claim under EMTALA. We disagree. EMTALA has provisions that proscribe both “dumping,” the refusal to treat an emergent patient who presents at a hospital, and “reverse dumping,” refusal to accept an appropriate transfer of a patient requiring a hospital’s specialized capabilities. We hold that Thompson did not prove her entitlement to protection under either of these provisions.
Regarding the dumping provisions, EM-TALA states in pertinent part:
In the case of a hospital that has a hospital emergency department, if any individual ... comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either—
(A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or
14(B) for transfer of the individual to another medical facility in accordance with subsection (c) of this section.
42 U.S.C. § 1395dd(a). Simply stated, while Thompson asserts that her father expressed a willingness to go to Sparks for treatment, the undisputed fact is that she remained at St. Edward. We note that in a remarkably similar case, Miller v. Medical Center of Southwest Louisiana, 22 F.3d 626 (5th Cir.1994), the Fifth Circuit held that in order to trigger the anti-dumping provision in EMTALA, the patient must actually “come to” the hospital, notwithstanding the fact that the administrator of a potential gaining hospital called a clinic with inadequate facilities and instructed them not to transport an uninsured patient to his hospital. The Miller court reasoned that the “comes to” phrase was dispositive for two reasons. First, it unambiguously describes the class of individuals that are covered by the statute and where the language is unambiguous “judicial inquiry is complete.” 22 F.3d at 629. Second, ignoring the “comes to” clause would render the clause a nullity, which would violate the rules of statutory construction that require the courts to interpret each part of the statute so as to “not render one part inoperative.” Id. We find the reasoning in Miller to be persuasive. Accordingly, Thompson did not qualify for protection under EMTALA’s anti-dumping provision.
Likewise, we hold that Thompson failed to demonstrate entitlement to protection under EMTALA’s reverse-dumping provisions. EMTALA states in pertinent part:
A participating hospital that has specialized capabilities or facilities (such as burn units, shock-trauma units, neonatal intensive care units, or (with respect 15to rural areas) regional referral centers as identified by the Secretary in regulation) shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual.
42 U.S.C. § 1395dd(g). Thompson does not allege, nor would it be appropriate to do so, that Sparks was the kind of specialized facility such as a burn unit or neonatal intensive care unit that EMTALA contemplates. Furthermore, Thompson did not require any facilities that were not available at St. Edward. Indeed, it is not disputed that she ultimately was successfully treated at St. Edward, notwithstanding Thompson’s claim that the delay in finding a plastic surgeon contributed to the loss of her big toe.
Thompson also argues that the trial court erred in concluding that Sparks could not be held liable under a theory of medical malpractice. She argues that Chatman v. Millis, 257 Ark. 451, 517 S.W.2d 504 (1975), is factually distinguishable and therefore does not control. Rather, she contends that liability may be imposed under our Medical Malpractice Act, which proscribes a healthcare provider from prematurely abandoning a patient. Ark.Code Ann. § 16-114-201(3) (Repl. 2006). We disagree.
The broad holding of Chatman is that a medical provider owed no duty to a person who was not its patient. The supreme court stated that where the defendant doctor “made no examination” of the plaintiff and in fact did not know him or had never seen him, the plaintiff was not a “patient.” Likewise, in the instant case, Thompson did not present at Sparks and was not examined there, and she did not otherwise allege that the hospital or its personnel knew her. Accordingly, we hold that she did not qualify as a patient, and | (¡therefore Sparks owed her no duty of care.
Thompson’s resort to section 16-114-201 does not compel a different result. It states in pertinent part that:
“Medical injury” or “injury” means any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.
(Emphasis added.) Because it is undisputed that Sparks never provided “professional services,” the plain reading of the statute does not impose liability on it for Thompson’s alleged injuries.
Affirmed.
VAUGHT, C.J., and BROWN, J., agree.
. The skin on her right foot, starting just above her ankle was essentially peeled off and her big toe was nearly detached. | [
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M. MICHAEL KINARD, Judge.
1'On August 29, 2007, appellants were jointly tried before a jury on charges of first-degree battery, kidnapping, and pos session of a firearm by certain persons, along with the enhancement offenses of commission of a felony with a firearm and commission of a felony in the presence of a child. Prior to the trial, counsel for appellants objected to the trial court’s reading the commission-of-a-felony-with-a-firearm and commission-of-a-felony-in-the-presence-of-a-child enhancements to the jury. The trial court overruled the objection. Appellants also moved to sever the felon-in-possession-of-a-firearm charge, and the motion was denied. Watkins and Atkins made an objection to the sentencing enhancements being |2read to the jury pri- or to trial, which was overruled. During the trial, Perry moved for a mistrial following a question by the prosecutor to a witness, which was denied. At the close of the State’s evidence, and again at the close of all of the evidence, counsel for appellants moved for directed verdicts, which were denied. After the verdicts were read, but prior to sentencing, appellants moved to have one of the firearm offenses removed, arguing that being sentenced on both constituted double jeopardy. The trial court denied this motion as well.
The jury found Atkins guilty of first-degree battery. Watkins and Perry were found guilty of second-degree battery. All three appellants were found guilty of kidnapping, being a felon in possession of a firearm, and use of a firearm in the commission of a felony. Perry was also found guilty of commission of a felony in the presence of a child. The jury sentenced Atkins to ten years’ imprisonment on the first-degree battery charge. Watkins was sentenced to five years’ imprisonment and Perry was sentenced to two years’ imprisonment on the second-degree battery charge. All three appellants were sentenced to ten years’ imprisonment on the kidnapping charge and five years’ imprisonment on the felon-in-possession-of-a-firearm charge. Perry was sentenced to an additional one year of imprisonment on the commission-of-a-felony-in-the-presence-of-a-child charge. The trial court added an additional fifteen years’ imprisonment to the sentences of all three appellants for commission of a felony with a firearm and ordered that all of the sentences were to be served consecutively.
|RThe charges against appellants stemmed from an incident that began on April 28, 2006. According to the alleged victim, Jason Bobo, he went to Watkins’s home, where he met Perry and Atkins for the first time. When Watkins arrived at the home, he accused Bobo of being involved in an earlier burglary of the home. Bobo testified that, at that point, all three appellants pointed guns at him. Appellants then ordered Bobo to remove his clothes and bound him with his shoelaces. Bobo was then placed in a bathtub where, according to his testimony, appellants beat him with then hands and guns, kicked him, poured hot water on him, poured chemicals on him, forced him to drink an unknown substance, and burned him with a lighter and lit cigarettes. Bobo testified that the incident continued until the next day, when he was able to escape to a relative’s home and contact the police.
Denial of Motions for Directed Verdict
Preservation of Watkins’s and Atkins’s right against double jeopardy requires that we consider their challenges to the sufficiency of the evidence before we consider alleged trial error. Grillot v. State, 353 Ark. 294, 303, 107 S.W.3d 136, 141 (2003). Watkins and Atkins both argue on appeal that the trial court erred in denying their motions for directed verdict. This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence, and will affirm a trial court’s denial of the motion if there is substantial evidence, either direct or circumstantial to support the jury’s verdict. Coggin v. State, 356 Ark. 424, 431, 156 S.W.3d 712, 716 (2004). Substantial evidence is defined as evidence forceful | .¡enough to compel a conclusion one way or the other beyond suspicion and conjecture. Id. The evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict is considered. Id.
Both appellants argue that the State did not produce substantial evidence that they were the ones who kidnapped and injured Bobo. They both state in their briefs that the only substantial evidence submitted by the State was the testimony of Bobo, which they characterize as “exaggerated and inconsistent.” Notwithstanding appellants’ characterization of the testimony, we find that Bobo’s testimony stands as substantial evidence to support the jury’s verdict. Our supreme court has held that the uncorroborated testimony of one state’s witness can be sufficient to sustain a conviction. Gray v. State, 318 Ark. 601, 602, 888 S.W.2d 302, 303 (1994) (citing Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985)). In Gray, an undercover agent and a confidential informant testified against the defendant. The supreme court stated that even if the jury had not believed the undercover agent’s testimony, the testimony of the confidential informant alone would have been sufficient to support the defendant’s conviction. Id.
Likewise, in this case, Bobo’s testimony, if believed by the jury, would be sufficient to satisfy all of the statutory requirements for the offenses for which appellants were found guilty. Bobo specifically identified appellants as the ones who committed the acts to which he testified. In addition, Bobo testified that both Watkins and Atkins were present and pointing guns at him while he was forced to undress and was bound. He also testified that |fiboth Watkins and Atkins caused injury to him while he was in the home. Given this testimony, the jury was not forced to speculate as to whom Bobo claimed kidnapped and injured him or as to whether the alleged acts occurred. Appellants’ arguments are without merit.
Refusal to Dismiss One of the Firearm Charges
Watkins and Atkins argue on appeal that it was error for the trial court to allow them to be tried on both felon-in-possession-of-a-firearm and commission-of-a-felony-with-a-firearm charges. They argue that a trial on both charges amounts to double jeopardy. We previously considered and rejected a similar argument in Davis v. State, 93 Ark.App. 443, 220 S.W.3d 248 (2005).
In Davis, the defendant argued on appeal that his convictions on charges of felon in possession of a firearm and commission of a felony with a firearm violated the double jeopardy clause of the United States Constitution. This court interpreted the supreme court’s decision in Williams v. State, 364 Ark. 203, 217 S.W.3d 817 (2005), to mean that when the commission-of-a-felony-with-a-firearm charge is used to enhance a defendant’s sentence, the double jeopardy clause is not offended. 93 Ark.App. at 447, 220 S.W.3d at 250. Therefore, it was not error for the trial court to decline to dismiss one of the firearm charges.
Denial of Motion for a Mistrial
| (iAU three appellants argue that the trial court erred by denying their motions for a mistrial. During the State’s questioning of Perry, the prosecutor asked the following question: “Well, what did you do down here when you were staying down here? Besides sell dope.” Appellants argue that the prosecutor’s implication that Perry sold drugs required the granting of a mistrial.
A mistrial is an extreme and drastic remedy that 'will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected. Harrison v. State, 371 Ark. 652, 269 S.W.3d 321 (2007). A circuit court has wide discretion in granting or denying a mistrial motion, and absent an abuse of that discretion, the circuit court’s decision will not be disturbed on appeal. Id.
As an initial matter, only Perry made the motion for a mistrial; the other appellants did not join in the motion. It is well established that we will not consider an argument for the first time on appeal. Hutcherson v. State, 74 Ark.App. 72, 77, 47 S.W.3d 267, 271 (2001). Therefore, Perry is the only one who can now raise the issue on appeal. We do not find error in the trial court’s denial of Perry’s motion for a mistrial. Immediately following the question by the prosecutor, the parties went into chambers, and the judge strongly warned the' prosecutor 'against''making any future similar statements. Back in court, the trial court admonished the jury to disregard the prosecutor’s statement. There was other evidence introduced at trial, including Bobo’s testimony and Perry’s own testimony, [vindicating that Perry had a history of being involved with drugs. Therefore, any potential prejudice from the prosecutor’s statement was properly remedied by the trial court.
Sentencing on Enhancement Offenses
All three appellants argue that the trial court erred in imposing the sentence on the enhancement offense of commission of a felony with a firearm instead of having the jury fix the punishment. The State argues that appellants failed to preserve the issue for appeal. We can find no evidence in the record that the appellants’ argument was raised below. Prior to the trial, the following exchange took place between the trial court, counsel for Perry, and the prosecuting attorney:
Mr. Bryant: Speaking again of enhancements, one of those, and I think it’s the Use of a Firearm During the Commission of a Violent Offense, I believe it is. It reads the Judge may sentence. It’s not, it’s enhancement only that the judge can make a finding. I make a motion that’s unconstitutional because it’s contrary to the sentencing provisions of the jury. The Arkansas scheme is the jury does the sentencing. And that is clearly not because that just gives the judge — the statute gives the judge the discretion to make that enhancement
The CouRT: Mr. Garrett, Mr. Easley, whichever one is going to respond.
Mr. Garrett: Judge, we have used that particular statute several times. In each case the jury is the one that has made the decision as to whether there will be an enhancement or not. I knovr that the statute says the judge can, but a judge can also regulate for the jury.
The Court: Do you have an instruction going to the jury on that offense?
Mr. Garrett: I have prepared one, yes.
| 8The Court: That’s what I’m going to do.
This exchange does not contain a clear objection and ruling as to the propriety of the trial court’s imposing the enhancement sentence. The following exchange between the trial court and counsel for the appellants makes it clear that none of them objected prior to sentencing to the trial court’s imposing the sentence:
The Court: Counsel, the Court will submit to the jury all the facts except for the count on the firearm charge. The Court’s going to sentence on the firearm charge. I’m not submitting that to the jury. Any objection? Statutorily that’s what I’m supposed to do. Anything else we need to deal with?
Mr. Bryant: No, Your Honor.
MR. Crain: No.
Ms. Lemons: No, Your Honor.
Appellants had a clear opportunity to object, and failed to do so.
Perry argues that the sentence was void or illegal, and can thus be considered for the first time on appeal. However, pursuant to Arkansas Code Annotated section 5^4-103 (Repl.2006), the trial court can fix punishment when the prosecution and the defense agree that the court may fix punishment. By failing to object when given the opportunity, appellants indicated their agreement with the trial court’s fixing the punishment. Therefore, the sentence imposed by the trial court was not void or illegal, as it was specifically allowed by statute. Appellants were required to raise this issue at trial in order to preserve it for appeal. Their failure to do so precludes this issue from our review. | ¡(Although we cannot address the trial court’s imposition of the additional sentences in this case, we note that it is generally improper for the trial court to sentence on the enhancement provision in place of the jury, pursuant to our decision in Watson v. State, 71 Ark-App. 52, 26 S.W.3d 588 (2000), in which we held that the trial judge lacked the authority to enhance the defendant’s sentence because the defendant was tried by a jury. Id. at 57, 26 S.W.3d at 591.
Reading of the Enhancement Offenses to the Jury
Watkins and Atkins both argue that the trial court erred by reading the enhancement offenses of commission of a felony with a firearm and commission of a felony in the presence of a child to the jury prior to the trial. The trial court read the enhancements to the jury at the opening of the voir dire examination. Arkansas Rule of Criminal Procedure 32.2 states, in relevant part, that “the judge shall initiate the voir dire examination by (i) identifying the parties; and (ii) identifying the respective counsel; and (iii) revealing the names of those witnesses whose names have been made known to the court by the parties; and (iv) briefly outlining the nature of the case.” The extent and scope of voir dire examination is within the sound discretion of the circuit judge, and the latitude of that discretion is wide. Isom v. State, 356 Ark. 156, 171, 148 S.W.3d 257, 267 (2004). The purpose of voir dire examination is to discover if there is any basis for challenges for cause and to gain knowledge for the intelligent exercise of peremptory challenges, not to attempt to commit the jury to a decision in advance. Id. at 173, 148 S.W.3d at 268.
11flBoth Watkins and Atkins argue that it was prejudicial for the trial court to read the enhancements to the jury prior to voir dire. We disagree. Unlike the felon-in-possession-of-a-firearm charge, which was not read to the jury by the trial court, and which would have given the jury prior notice of a felony conviction, the enhancement charges did not give the jury any potentially prejudicial information about appellants. The reading of those enhancements gave the prospective jurors knowledge as to the nature of the offenses al leged, which is necessary for them to have in order for voir dire to be properly conducted. Contrary to Atkins’s argument, the reading of the enhancements did not serve to bolster the other charges because it still left the State with the same burden to prove the individual elements of the felony offenses alleged before the enhancements could be considered. In any event, the jury would have had the same information prior to the termination of the guilt phase of the trial anyway because they received the required jury instructions on the enhancement offenses. We find no error by the trial court on this point.
Refusal to Sever the Felon in Possession of a Firearm Charge
Atkins argues that the trial court erred in refusing to sever the felon-in-possession-of-a-firearm charge from the other charges. A defendant has a right to a severance when two or more offenses have been joined solely on the ground that they are of the same or similar character. Brown v. State, 304 Ark. 98, 99, 800 S.W.2d 424, 425 (1990). Otherwise, granting or refusing a severance is within the discretion of the trial court and the decision by the trial judge will not be disturbed absent an abuse of discretion. Id. A severance j 1Tmotion may be denied if the two offenses were part of a single scheme or plan or if both offenses require the same evidence. Id.
While it does not appear that the two offenses were joined solely on the ground that they were of the same or similar character, we believe that refusing to sever the charges was error in this case because the two charges are not part of the same scheme nor do they require the same evidence. In addition to error, appellants must show some form of prejudice before we can disturb a ruling of the trial court. Smith v. State, 307 Ark. 223, 226, 818 S.W.2d 945, 947 (1991). Our supreme court has declined to conclude that the joinder of a felon-in-possession-of-a-firearm charge along with another felony charge constitutes prejudice by that fact alone in all instances. Sutton v. State, 311 Ark. 435, 441, 844 S.W.2d 350, 354 (1993). Instead, such cases are to be examined individually to determine if the presumption of prejudice has been overcome and whether the trial court abused its discretion.
In Sutton, the supreme court found that the presumption of prejudice was not overcome because the evidence of guilt was weak, the prior felony was not admissible for the purposes of impeachment, and the error was not cured by the instruction on the prior conviction and credibility at the end of the trial. Id. We believe that this case is distinguishable from Sutton.
In this case, there is direct evidence of appellants’ guilt in the form of testimony from Bobo. In addition, there is circumstantial forensic evidence that supports Bobo’s testimony. [ 12Therefore, we do not see the evidence of guilt as “weak” as to either defendant. In this case, the prior convictions of Watkins and Atkins were certainly admissible for the purpose of impeachment, and appellants voluntarily took the stand, with no indication that they felt forced to do so by the inclusion of the felon-in-possession-of-a-firearm charge. In addition, the trial court instructed the jury that it was not to consider evidence of a conviction of a prior felony as proof of guilt on the charges in this case. Therefore, the error by the trial court was not prejudicial to appellants.
Affirmed.
VAUGHT, C.J., and GLADWIN, J., agree.
. Appellants were originally charged with attempted capital murder and engaging in gang activity as well, but these charges were nolle prossed by the State. | [
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JIM HANNAH, Chief Justice.
| iThis appeal arises from the filing of a medical malpractice action. Appellant L.D. Shields appeals an order of the Washington County Circuit Court granting summary judgment in favor of appellees Northwest Medical Center of Washington County and John H. Kendrick, M.D. Shields’s points on appeal are directed not at the granting of the summary judgment, but at his attorney’s representation of him in this matter. During the litigation, Shields’s attorney, Jeffrey G. Malm, filed a motion to withdraw as counsel. Prior to ruling on that motion, the circuit court granted summary judgment in appellees’ favor and ruled that Malm’s motion to withdraw as counsel was moot. On appeal, Shields asserts that the circuit court erred in permitting Malm to continue to serve as his attorney where the |2circuit court was aware that Malm had been discharged by Shields and where a conflict of interest was apparent. He also asserts that the circuit court erred in failing either to strike pro se pleadings or otherwise make an appropriate ruling on the pleadings. Shields claims that, due to his attorney’s conduct and errors of the circuit court, his rights were prejudiced, and he urges this court to reverse the circuit court’s findings and allow him additional time to pursue his cause of action. We affirm the circuit court.
On January 12, 2004, Kendrick performed surgery on Shields’s wife, Harriet. In a subsequent surgical procedure performed on May 4, 2004, Kendrick removed what he referred to as “a large piece of old mesh and Prolene suture” from Ms. Shields’s abdomen. On March 1, 2007, Shields, through his attorney, Malm, filed a medical malpractice action against Northwest and Kendrick, alleging that when Kendrick performed surgery on Ms. Shields on January 12, 2004, he left material inside her abdomen that became infected and kept her wound from healing. Shields attached to his complaint the affidavit of Stevan Van Ore, M.D., who treated Ms. Shields for a number of years as her primary care physician. In reference to the surgery, Van Ore stated that it was “clearly negligence and a breach of the standard of care for the hospital employees to fail to remove the gauze or foreign objects Isfr'omthe wound.”
On or around January 18, 2008, counsel for Northwest notified Malm of his intent to call as an expert witness, Bruce Hansel, Ph.D., Executive Director for Forensic Services at the Accident and Forensic Investigation Group in Plymouth Meeting, Pennsylvania. Northwest provided Malm a copy of the report prepared by Hansel following his examination and analysis of the foreign material removed from Ms. Shields. In Hansel’s opinion, the material was prosthetic mesh from a prior surgery that had been intended to remain in Ms. Shields’s body permanently. Hansel stated in the report that resorbable sutures may have been used, and that once the sutures dissolved, the material could have then migrated.
On January 28, 2008, Malm filed a motion to withdraw as counsel for plaintiff, on the grounds that he had received discovery from Northwest, indicating that the infected material over which the case arose had been tested and was not believed to be wound packing material negligently left by Kendrick, although he did remove the material in May 2004. Malm stated in his motion that he had thirty years of extensive litigation experience, including medical negligence cases, and that his evaluation of the case led him to the conclusion that, the case was not economically viable due to the fact that the material found was in all reasonable probability from one of Ms. Shields’s prior surgeries. Malm stated that, after consulting with medical experts and other attorneys, he believed that pursuing the case |4was “very unwise” and “potentially in bad faith.” Malm further stated that his opinion of the case was “diametrically opposed” to the opinion of Shields, and that this difference of opinion created a “fatal conflict.” Finally, Malm requested that the litigation be stayed for sixty days to give Shields time to employ other counsel.
On January 29, 2008, Kendrick filed a motion for summary judgment based on Shields’s failure to file an affidavit of a general surgeon, as required by Arkansas Code Annotated section 16-114-209; the findings in Hansel’s report; and Malm’s admission that he could find no expert to support Shields’s claims. Kendrick attached to his brief in support of the motion the affidavit of general surgeon Charles Mabry, M.D., who reviewed the medical records and other facts and evidence in the case and concluded that the material removed from Ms. Shields’s abdomen on May 4, 2004, was the prosthetic mesh originally placed in the hernia repair surgery performed by Marc Wittmer, M.D., in 1997. Northwest filed its own motion for summary judgment on February 4, 2008, attaching the affidavit of Mabry and the report of Hansel.
On February 7, 2008, Malm filed a response to the motions for summary judgment, on behalf of Shields, stating that there was no evidence to create a genuine issue of material fact. Malm did, however, advise the court on behalf of Shields, that Shields believed the material tested was not the material removed in May 2004, that there was some “malice” involved, and that the material had been “switched.” Malm stated that he had complied Rwith his legal and ethical duties and obligations in his representation of Shields, and he averred that he would not advance a groundless claim.
On February 12, 2008, Malm forwarded to counsel for Kendrick an order granting summary judgment that was already signed by Malm and counsel for Northwest. Malm asked counsel for Kendrick to sign the order and forward it to the circuit court.
On February 13, 2008, Shields filed a pro se motion to enlarge time for response to motion for summary judgment, request ing a continuance, pursuant to Arkansas Rule of Civil Procedure 56(f), to conduct additional discovery, and requesting that he be given time to hire new counsel. Shields attached to his motion a letter from Wittmer, who stated that the material removed from Ms. Shields in 2004 was shaped differently from the patch he used in the 1997 hernia repair surgery and appeared to be in a different location than where he had originally placed it. Kendrick responded to Shields’s motion to enlarge time, stating that Malm was still the attorney of record for Shields and that Malm had continuously and affirmatively acted as Shields’s attorney by filing pleadings on his behalf. Subsequently, the circuit court entered an order setting a hearing for March 27, 2008, to consider Malm’s motion to withdraw and the appellees’ motions for summary judgment.
On February 14, 2008, Kendrick filed a response to Malm’s motion to withdraw, arguing that summary judgment was warranted and that granting the motion to withdraw would unfairly delay proceedings and would cause unnecessary expense and stress for all | (¡parties. Kendrick requested that the circuit court require Malm to continue as Shields’s attorney until the pending motions for summary judgment could be adjudicated or, alternatively, until substitute counsel appeared for Shields and agreed to proceed with trial, which was scheduled for May 12-16, 2008.
On March 5, 2008, the circuit court held a telephone conference with Malm and counsel for both appellees. In response to the circuit court’s inquiry, Malm stated that he was still Shields’s attorney. Moreover, Malm agreed that summary judgment was appropriate and that his motion to withdraw as counsel was moot. Following the telephone conference, the circuit court entered an order granting appellees’ motions for summary judgment, dismissing Shields’s complaint with prejudice, and denying Malm’s motion to withdraw as being moot.
On the same afternoon as the hearing, Shields submitted a letter to the circuit court, stating that he had received Kendrick’s response to his motion to enlarge time and was unaware that Malm had signed “a motion to dismiss with prejudice” or that Malm had responded to the motions for .summary judgment, on-his..behalf. Shields stated ⅛ the letter that Malm had informed him he was no longer his attorney. In addition, Shields stated that he did not authorize Malm to act on his behalf. The circuit court issued a letter the next day, serving Malm, as well as counsel for appellees, explaining that the Arkansas Code of Judicial Conduct prohibited him from discussing the case. The circuit court stated that it |7had not read the letter after discovering that it was an ex parte communication and noted that the letter would be placed in the case file. This appeal followed.
Attorney Malm’s Continued Representation of Shields
Shields first asserts that the circuit court erred in permitting Malm to continue to serve as his attorney where it was aware that Malm had been discharged by Shields and where a conflict of interest was apparent. In support of this argument, Shields cites Arkansas Rule of Civil Procedure 64(b) and cases interpreting the application of that rule. Rule 64(b) concerns the withdrawal of counsel and the factors the circuit court must consider in determining whether an attorney should be permitted to withdraw from a proceeding or from representation of a party. In this case, the circuit court did not grant Malm’s motion to withdraw; rather, the circuit court denied the motion as being moot. Thus, the circuit court did not consider the merits of Malm’s motion pursuant to Rule 64(b). Accordingly, Rule 64(b) and the cases interpreting that rule are inapplicable to the instant case.
An attorney who appears in court is presumed to be authorized to represent the client. Mobley v. Harmon, 313 Ark. 361, 854 S.W.2d 348 (1993); Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). The burden is on the client to show that the attorney had no authority to appear on his or her behalf. See Pender, supra. This authority can be put in issue only upon a showing of facts tending to indicate a want of authority. See Nunez v. | 8O.K. Processors, Inc., 238 Ark. 429, 382 S.W.2d 384 (1964). Where court records show an entry of a party’s appearance by a regular practicing attorney, evidence of his or her lack of authority must be clear and satisfactory to warrant relief from judgment against the party. See Pender, supra.
Based upon this standard, we must consider whether Shields made a showing of facts tending to indicate that Malm lacked the authority to represent him. Shields asserts that at the point Malm notified the circuit court through his motion to withdraw that his interests had diverged from Shields’s interests, and especially in light of the tone of Malm’s supporting brief, the circuit court should have recognized that Malm was no longer acting in Shields’s best interest, but that he essentially had become his own client, advocating his own position.
Appellees contend that the circuit court did not err in permitting Malm to continue to serve as Shields’s attorney. They assert that, because Malm continuously represented to the circuit court that he was Shields’s attorney and affirmatively acted as Shields’s attorney, he had apparent authority to represent Shields. Appellees also assert that there was no legally cognizable conflict of interest between Shields and Malm. In addition, appellees contend that Malm had an affirmative duty to disclose to the circuit court that Shields’s claims were groundless and could not be pursued in good faith. Finally, appellees state that the circuit court had an affirmative duty to prevent the litigation of a meritless claim.
bUpon review of Malm’s motion to withdraw and brief in support, it does not appear that Malm was advocating his own position, but rather explaining to the circuit court how the attorney-client relationship had deteriorated due to disagreement about whether or not to proceed with the case. Malm explained in his motion that Shields had “opinions regarding the facts which conflict with counsel’s professional opinions, and cannot be proved by any experts available to counsel at this time.” Further, Malm averred that he could not state after reasonable inquiry that the case was well grounded in fact, such that he would be in compliance with Arkansas Rule of Civil Procedure 11. Malm, in his professional judgment, disagreed with Shields about the merits of the case and essentially informed the court that pursuing the case would be frivolous. Thus, Malm used candor toward the tribunal, which as an officer of the court, he is required to do. See Ark. Sup. Ct. R. Profl Conduct 3.3.
Shields also asserts that it was clear from the escalating tone of the multiple motions filed by Malm and defense counsel that Malm was no longer representing Shields, but was enthralled in a personal battle with opposing counsel and looking to drop the case as soon as possible without ruining his reputation, “even if it meant hanging his client out to dry.” While Shields cites to pleadings contained in the addendum of his brief, he does not provide examples of what language he alleges is indicative of the contention between Malm and defense counsel. After reviewing the pleadings, it is clear that Malm was explaining to the 110circuit court that he believed Shields’s case was without merit and that he could not pursue it in good faith. For example, in plaintiff’s response to defendants’ motions for summary judgment, Malm wrote:
Counsel will not pursue the issue that the tested material has been “switched” which is the Plaintiffs theory now. Counsel’s position is that based on the available evidence, the Plaintiff cannot meet his burden of proof on the liability facts regarding the necessary proof to establish, to a reasonable degree of medical certainty, that the material was left inside Ms. Shields by the Defendants, notwithstanding when it may have actually been placed in her. That is irrelevant to the Plaintiffs burden of proof. It is material designed, according to the report, to be left in the body, and there is no medical evidence available to the contrary.
The record reflects that Kendrick opposed Malm’s motion to withdraw as counsel. Kendrick stated that he had already been forced to defend the lawsuit for two years, and if Malm were allowed to withdraw and litigation were stayed, then the case would be delayed for many months. Even so, this has no bearing on what Malm reported to the circuit court — that Shields could not meet his burden of proof. It appears that Malm’s assessment of the case, based upon his professional judgment, was an evaluation of the merits of the case and was not, as Shields suggests, intended to preserve Malm’s reputation.
Shields further asserts that the circuit court erred in allowing Malm to continue to represent him because Shields had fired Malm. Shields contends that the circuit court should have known that he had discharged Malm when Malm noted in a supplemental brief Into his motion to withdraw that Shields had picked up his file and when Shields began filing his own pleadings. Shields also asserts that his attachment of Wittmer’s letter to his motion to enlarge time is direct evidence of discharge because it shows that Shields was producing his own evidence.
Kendrick points out that the motion to withdraw, response to appellees’ motions for summary judgment, and the reply to appellees’ response to motion to withdraw filed by Malm on behalf of Shields contain no statements that Shields had fired Malm. Kendrick adds that Shields himself never informed the circuit court that he had fired Malm. While there is nothing in the record to suggest that Shields fired Malm, there is a suggestion, advanced by Shields, that Malm had discharged Shields as a client. As previously noted, the record reveals that in his letter to the circuit court, Shields claimed that Malm informed him that he no longer represented him. However, the circuit court never read Shields’s letter because it was an ex parte communication.
Here, we cannot say that the circuit court had reason to believe that Shields had fired Malm. Malm continued to represent Shields in court, and there was no reason for the circuit court to believe that Malm did not have the authority to do so. The fact that Shields picked up his case file did not necessarily mean that Shields was no longer employing Malm, as clients may request files from their attorneys. In addition, Shields cites no authority for the proposition that simply filing pro se motions constitutes an act or desire to discharge | ^counsel. Indeed, this court has recognized that circuit courts may choose to hear motions submitted pro se by a client who is represented by counsel. See Monts v. Lessenberry, 805 Ark. 202, 806 S.W.2d 379 (1991). In sum, Shields failed to make a showing of facts tending to indicate that Malm lacked the authority to represent him. Accordingly, we hold that the circuit court did not err in permitting Malm to continue to serve as Shields’s attorney.
Ruling on the Pro Se Motion
Shields next asserts that the circuit court erred in failing either to strike pro se pleadings or otherwise make an appropriate ruling on the pleadings. When a represented party files a pro se motion, the circuit court should exercise its discretion and dispose of the motion by either striking it on the ground that the party is represented by counsel and was thus not entitled to proceed pro se or by otherwise making an appropriate ruling. See, e.g., Monts, supra. Moreover, such motions should be disposed of promptly and made a matter of record. Urquhart v. Davis, 342 Ark. 9, 25 S.W.3d 411 (2000).
In the instant case, Shields’s motion to enlarge time requested time to hire new counsel and a continuance pursuant to Arkansas Rule of Civil Procedure 56(f), which provides:
When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained |13or depositions to be taken or discovery to be had or may make such other order as is just.
Here, the record shows that the circuit court was aware of Shields’s pro se motion to enlarge time when it granted the motion for summary judgment in favor of appel-lees. Thus, it is clear that the circuit court determined that there was no genuine issue of material fact concerning whether appellees were liable for Ms. Shields’s injuries and, therefore, concluded that appel-lees were entitled to summary judgment as a matter of law. By granting summary judgment against Shields, the circuit court effectively denied Shields’s motion to enlarge time, thereby discharging its duty to strike or “otherwise make an appropriate ruling” disposing of Shields’s pro se motion. Finally, we note that Shields does not challenge the circuit court’s granting summary judgment. Therefore, it is unnecessary for this court to address appel-lees’ arguments regarding summary judgment.
Affirmed.
BROWN, IMBER and DANIELSON, JJ., dissent.
. This was the second complaint Malm filed on behalf of Shields. The case was originally filed by Malm on January 6, 2005, on behalf of Shields and his wife; the case was nonsuit-ed in March 2006. Subsequently, Ms. Shields died, and the case was refiled by Malm on March 1, 2007, on behalf of Shields in his individual capacity and as a personal representative of the Estate of Harriet Shields. | [
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DONALD L. CORBIN, Justice.
| ¶Appellant Roger Schubert appeals an order of the Pulaski County Circuit Court granting a directed verdict in favor of Ap-pellee Target Stores, Inc. On appeal, Appellant avers that it was error for the trial court to grant a directed verdict because he presented sufficient evidence to create a fact question as to whether Appellee was negligent. This court assumed jurisdiction of this appeal, as it is a second appeal; hence, our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(7). Because there remains an outstanding party with a potential claim, we must dismiss this appeal.
Only a brief recitation of the facts is necessary, ás the pfertment fact's were set forth in Schubert v. Target Stores, Inc., 360 Ark. 404, 201 S.W.3d 917 (2005) (Schubert I). Suffice it to say, Appellant was employed by J.B. Hunt Transport, Inc., as a tractor-trailer driver. J.B. Hunt contracted with Appellee to provide transportation of its goods. As part of their |2contractual agreement, Hunt was required to provide workers’ compensation coverage for the benefit of both Target and Hunt in the event of an injury to one of Hunt’s employees.
On February 19, 1999, Appellant was dispatched to Appellee’s distribution center in Maumelle. Once there, he hooked up a sealed trailer that had been loaded by Appellee’s employees with bales of cardboard boxes. Appellant then transported the load to an International Paper facility in Mansfield, Louisiana, for recycling. When Appellant opened the trailer doors, a 1,000 pound bale of cardboard fell from the trailer hitting and injuring him. Appellant, a resident of Oklahoma, filed a workers’ compensation claim against Hunt in Oklahoma and was subsequently awarded benefits. He then filed a negligence complaint against Appellee in Pulaski County Circuit Court. The circuit court entered an order of summary judgment in favor of Appellee after finding that Louisiana’s exclusive-remedy doctrine applied and barred Appellant’s negligence suit. This court reversed and remanded the circuit court’s order, holding that the substantive law of this state applied. Id.
Upon remand, Insurance Company of Pennsylvania, who paid worker’s compensation benefits to Appellant, filed a motion to intervene, which was granted. It subsequently filed a “Complaint in Intervention” on March 31, 2008, that stated in relevant part:
Pursuant to Oklahoma law, Plaintiff could “elect whether to take compensation under the Workers’ Compensation Act, or to pursue his remedy against [the third party tortfeasor]” and “if he elects to take compensation under the Workers’ Compensation Act, the cause of action against such other shall be assigned to the insurance carrier liable for the payment of such compensation.” 85 Okl. St. Ann. § 44(a).
| sThe case proceeded to trial, with the circuit court granting Appellee’s motion for directed verdict. In its subsequent order, the circuit court made no mention of the Intervenor or its complaint.
While none of the parties raise this issue, the question of whether an order is final and subject to appeal is a jurisdictional question that this court will raise sua sponte. See Jones v. Huekabee, 363 Ark. 239, 213 S.W.3d 11 (2005). Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure — Civil provides that an appeal may be taken only from a final judgment or decree entered by the trial court. Rule 54(b) of the Arkansas Rules of Civil Procedure deals with the finality of orders in connection with judgments upon multiple claims or involving multiple parties and states in relevant part:
(1) Certification of Final Judgment. 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, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment....
(2) Lack of Certification. Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, 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 judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.
[/Thus, our court has held that under Rule 54(b), an order is not final that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. See S. Farm Bureau Cas. Ins. Co. v. Easter, 369 Ark. 101, 251 S.W.3d 251 (2007). More specifically, this court has held that an order that fails to address an interve-nor’s claim is not a final order. See Richardson v. Rodgers, 329 Ark. 402, 947 S.W.2d 778 (1997).
Here, the Intervenor filed a separate “Complaint in Intervention” asserting, in part, that under the law of Oklahoma, any cause of action that Appellant may have is to be assigned to the Intervenor. As such, there may be issues concerning the intervention that remain outstanding and may be subject to appeal. Appellant has failed to meet its burden of producing a record showing that the jurisdictional requirements of Rule 54(b) have been met.
Finally, we take this opportunity to note that Appellant filed a brief that is not in compliance with Arkansas Supreme Court Rule 4-2(a)(5) and (8), as both the abstract and addendum are deficient. The abstract consists only of “excerpts” of testimony from witnesses and omits relevant portions of the testimony adduced at trial. Moreover, Appellant failed to abstract the directed-verdict motion and response thereto. Rule 4-2(a)(5) requires an abstract of the transcript that consists of “an impartial condensation, without comment or emphasis, of only such material parts of the testimony of the witnesses and colloquies ^between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision.”
In addition, the addendum contains only the order and notice of appeal. The complaint, answer, and other pleadings are not included in the addendum. Rule 4-2(a)(8) provides that the appellant’s brief shall contain an addendum that includes a true legible photocopy of the order or judgment from which the appeal is taken, “along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal.”
Appeal dismissed without prejudice.
IMBER, J., not participating. | [
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DAVID M. GLOVER, Judge.
1 ,This appeal involves approximately five-plus acres of rural lands. Appellant Keith Burns appeals from the order of the trial court quieting title in appellees Milton and Verna Stewart and the Stewart Trust, and denying Burns’s counterpetition to quiet title. Burns contends that he proved both a boundary by acquiescence and title by adverse possession to |2the lands and that the trial court’s rulings to the contrary are clearly erroneous. We disagree and affirm.
The facts and legal issues are straightforward. The parties own lands on either side of the section center line. The disputed lands, 5.9546 acres, lie west of the center line and are bounded by a fence on the western edge. By stipulation, four deeds among the parties, none of which contained metes and bounds descriptions of any lands conveyed, and two surveys— one of the lands on either side of the center line — were introduced.
The case, though, turns on the testimony of three witnesses: appellant Burns, appel-lee Stewart, and Jerry Jackson, Burns’s predecessor in interest.
Some facts are undisputed. Stewart first owned the lands east of the center line when he was nineteen but sold the lands to his distant uncle (Roy Mclnturff) the following year. Mclnturff “strung a fence down through the woods,” which is the fence involved in the dispute in this case. Photos of the fence attached to trees were introduced. Stewart later bought the lands west of the center line, which include the five-plus acres in dispute here. In 1972, Mclnturff deeded the lands east of the center line to Jerry Jackson. Then, in 2003, Jackson conveyed the same lands to Burns. Jackson testified that he thought he had his property surveyed right after he bought it but that he could not find the survey now. Jackson identified a 1987 survey he later had prepared, a copy of which Burns and he agreed was delivered to Burns at the time of sale of the lands to Burns in 2003. The survey stated that fences are generally meandering around the property line. The survey- or’s certificate on the plat stated that the plat was prepared from existing monuments, improvements are as above, |Rand there were no encroachments onto the surveyed tract. The remaining survey was prepared in 2007 at the request of Stewart before this litigation. It was of the 5.9546 acres and was prepared after words were exchanged between Stewart and Burns concerning the boundary line between their adjoining lands.
The use of the fence over the years and the parties’ intentions regarding the fence were developed by disputed testimony from the three principal witnesses. First, Stewart stated he owned the lands west of the center section line at the time his distant relative originally installed the fence in 1962 or 1963, as well as when the fence was later repaired. He did not give permission to build the fence but did not object either because it was his uncle. The fence helped him in keeping his cattle enclosed. He had a couple of conversations with Jackson after Jackson bought the lands from Mclnturff in which he explained that the fence line was not the boundary line. According to Stewart, Jackson agreed that the fence was not the line and the parties further agreed Stewart would put up a new fence, if any, which wasn’t done because of lack of money (for a survey to know where the boundary line was actually located). Jackson was Stewart’s neighbor for thirty-one years (1972-2003), during which time the fence was used as a restraining fence. In 2004, shortly after Burns bought the lands, Stewart told Burns the fence was not the boundary line; that it was not straight; and that a crooked fence cannot be a survey section line. When Stewart had the disputed lands surveyed in 2007 and found out where the quarter section line was, he told Burns he wanted to put a fence on the surveyed boundary line. Further, when the issue arose for Stewart concerning Burns’s claims to the disputed lands, he then asked for and obtained from Jackson a quitclaim Indeed (with a metes and bounds description of the 5.9546 acres enclosed by the old fence line) relinquishing any claims to it.
Next, Mr. Jackson acknowledged that he bought his lands in 1972 and sold them in 2003. Jackson said Mclnturff was elderly and did not show him the lands. He assumed the fence was the boundary line and labored under that misconception for about a year. Then, Stewart told him the fence was not the boundary line. Jackson confirmed in court the discussions between Stewart and him about the fence not being the boundary line. He recalled that Stewart came to him within a year of when he purchased his lands and told him that part of the lands on the east side of the fence were his (Stewart’s). Jackson said he told Stewart that was fine and if he wanted to move the fence he could go ahead and do that. According to Jackson, he did not worry about it because the land was not worth that much. Wherever the boundary line was, it was okay with him. Also, according to Jackson, neither he nor Stewart intended to move the property line. He used the land all the way up to where the fence was and let others do the same for the thirty-one years that he owned it. Jackson stated that, at the time Stewart first approached him, he had “either seen a survey of it or a map some place” that showed it as a straight line. Jackson identified his own 1987 survey of his lands and said he conveyed his lands by deed to Burns with the description being the lands lying east of the property line. Jackson testified that he made no adverse, notorious claims against Stewart for rights to the lands lying west of the center section line. Jackson remembered that he did not walk the lands when he sold to Burns but that they did drive over to the fence line. Responding to the court’s questions, he stated that he did not | ¡¡represent to Burns that everything east of the fence line was his; that what he told Burns was that the fence was not the property line; and that it belonged to Stewart.
In his testimony, Burns identified the eighty-three acres he acquired by deed from Jackson. In contrast to Jackson’s testimony, while stating that Jackson did not view the property with Burns and Peggy Carner, Burns said that Jackson did describe it as fenced. Burns also identified his realtor as telling him the lands were totally fenced. Burns recalled that he, Peggy, and his father and stepmother all walked the lands with Jackson on another occasion before his purchase, at which time they all heard Jackson tell them the lands being sold were totally fenced and included the fence. (None of these persons testified at the trial.) Burns confirmed that Jackson showed him the 1987 survey and that he (Burns) relied on the surveyor’s certification. Burns confirmed that when Stewart came to him within a month of his purchasing the lands and told him the fence was not on the line, he countered to Stewart that he bought the lands with the fence. Burns then took photos of the fence, which were introduced. Burns also stated that Jackson had never disclosed any dispute with Stewart over the property line or that the fence was not the property line, but had Jackson done so, the sale would have stopped right then.
After the parties rested, the trial court explained its decision. It stated that the first thing of importance in analyzing the case was determining what Jackson owned because he could only sell what he owned; although he could tell somebody that he was selling more than he actually owned, thereby defrauding them, Jackson could not actually sell more than he owned. The trial court stated that Jackson’s and Milton’s testimony was undisputed that | fiJackson had not been adversely possessing the property since 1972; that Mcln-turff might indeed have had a claim for title by virtue of adverse possession, and if Mclnturff had conveyed the lands to somebody, there might be a viable lawsuit based on adverse possession (of the five-plus acres in dispute), but there was no evidence that Mclnturff conveyed anything but the description in the warranty deed. So by virtue of the deeds, Mclnturff conveyed only the eighty-three acres. The trial judge then summarized his adverse-possession analysis as follows: “Jackson says hey, that’s all I claim I owned was the eighty-three acres. And based on that, I don’t see — I’m going to — I’m going to find that this is no sufficient evidence to establish any kind of ownership in Mr. Keith Burns to anything other than what’s in the description.” The trial judge went on to say: “I’ve heard testimony about what was represented to [Burns], and my decision is not based on that. It’s strictly based on Jackson couldn’t sell what Jackson didn’t own.” The trial court next explained that it did not see any acquiescence either.
Again quoting the trial judge, “I mean, we’ve got Jackson saying I wasn’t claiming it by — I just was using what I was using. ... Well, acquiescence would require that they both agreed that the line indeed was the boundary line. And I’ve got Mr. Jackson saying I wasn’t claiming it. It was convenient to me, but I wasn’t claiming it.”
[Counsel FOR Burns]: Mr. Jackson didn’t know where the boundary line was and testified to that. What he said was, if Mr. Stewart [Milton] wanted to move what everybody considered to be the boundary line, then he could do it.
The Court: No, no, no, no, that’s the important part. Everybody didn’t consider it. Everybody considered that it was there, but that it was of no significance is what I heard.
|7Equity cases are reviewed de novo on appeal, and we do not reverse a trial court’s findings of fact unless they are clearly erroneous. Steele v. Blankenship, 210 Ark.App. 86, 377 S.W.3d 293 (2010); Clark v. Casebier, 92 Ark.App. 472, 215 S.W.3d 684 (2005). A finding is clearly erroneous when, although there is evidence to support .it, we are left with the definite and firm conviction that a mistake has been made. Clark, supra. In reviewing a trial court’s findings of fact, we give due deference to the trial court’s superior position to determine credibility of the witnesses and the weight to be accorded to their testimony. Id.
The erection and maintenance of a fence at or near the boundary line between adjoining landowners is not enough, in and of itself, to establish a boundary line by agreement and acquiescence. Camp v. Liberatore, 1 Ark.App. 300, 303, 615 S.W.2d 401, 403 (1981). Rather,
[t]he basic question is one of intention: Did the adjoining landowners mean to recognize the fence as the boundary? ... The case hinges on whether or not the old fence and the fence row was an agreed line between the two pieces of property. While the construction and maintenance of a division fence, when mutually regarded as a boundary, may constitute recognition and acquiescence mere existence of a fence between adjoining landowners is not of itself sufficient. There must, therefore, be a mutual recognition of the fence as the dividing line.
(Emphasis added.) Id. (quoting Fish v. Bush, 253 Ark. 27, 484 S.W.2d 525 (1972)).
Here, as explained by the trial judge in his comments from the bench, the only real chance for a change in the property line lay with Mclnturff, but Mclnturff did not convey to Jackson anything beyond what had been conveyed to him. Moreover, Jackson (Burns’s predecessor in interest) testified that he never regarded the fence as the boundary between the two properties. Thus, the trial court had before it testimony from both Jackson and Stewart | sdenying the existence of any mutual agreement to have the fence represent the boundary line between their properties. After reviewing all of the evidence presented to the trial court, we are simply not left with a definite and firm conviction that a mistake was made in finding that Burns did not prove the existence of a boundary by acquiescence.
We also find no clear error in the trial court’s conclusion that Burns did not establish adverse possession of the disputed lands. In order to establish title by adverse possession, the person making that claim has the burden of proving that he has been in possession of the property continuously for more than seven years and that the possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Cleary v. Sledge Props., Inc., 2010 Ark. App. 755, 379 S.W.3d 680. The Arkansas General Assembly enacted certain statutory requirements for proof of adverse possession in Act 776 of 1995, now codified at Arkansas Code Annotated section 18-11-106. Id. In order for a claimant to establish adverse possession under this law, the claimant must prove color of title and payment of ad valorem taxes, in addition to the common-law elements of adverse possession. Id. Adverse possession occurs where possession of specific property is inconsistent with the true owner’s rights and is accompanied by certain acts, including hostility. Id.
As discussed previously, Mclnturff would probably have had the best chance of establishing adverse possession, but he did not convey more lands than were conveyed to him. Jackson, Mclnturffs successor, who sold the same lands to Burns, testified that he always knew that the fence did not represent the boundary line and, based on his conversations with Stewart, he had not claimed anything beyond what had been conveyed to him by deed. |flThere could be no basis for adverse possession based on Burns’s occupancy of the lands because he had not lived there the required seven years prior to this action being brought, and neither was there any prior adverse possession upon which he could tack. Consequently, just as with our discussion pertaining to boundary by acquiescence, we are not left with a definite and firm conviction that the trial court made a mistake in finding that Burns did not prove ownership based upon adverse possession.
Affirmed.
VAUGHT, C.J., ROBBINS, GRUBER, and ABRAMSON, JJ., agree.
WYNNE, J., dissents.
. Bums bought his property with Peggy Simpson Carner; she was named as a code-fendant in the quiet-title action brought by the Stewarts. However, Carner quit-claimed her interest to Bums in March 2006, before the lawsuit was filed. Although Carner was served with the Stewarts’ complaint, she did not answer or appear. Testimony and evidence established that she had no ownership interest in Burns’s property and therefore would have no interest in the outcome of this litigation whether in the complaint or coun-terpetition. Thus, the order on appeal has adjudicated all claims, rights, and liabilities of all parties and is final for purposes of appeal. | [
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JOHN B. ROBBINS, Judge.
| Appellant Michael Lee Layton was convicted in a jury trial of possession of cocaine with intent to deliver, simultaneous possession of drugs and firearms, and being a felon in possession of a firearm. Mr. Layton was sentenced to concurrent prison terms of forty, fifty, and forty years. Appellant’s counsel originally filed a motion to withdraw on the grounds that an appeal would be without merit pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Ark. Sup. Ct. R. 4—3(j)(l). However, in an unpublished opinion we held that an appeal of Mr. Layton’s convictions would not be wholly frivolous, and we ordered rebriefing in an adversary form. See Layton v. State, CACR07-1292 (Ark.App. July 25, 2008).
[ 2Mr. Layton now brings this merit appeal, raising two points for reversal. First, he contends that the trial court erred in failing to grant his motion to dismiss for lack of a speedy trial. Next, he argues that there was insufficient evi dence to support his convictions. We affirm.
Columbia County Sheriff Calvin Knigh-ton testified for the State. Sheriff Knigh-ton testified that he was driving on Highway 371 South toward Louisiana when a car passed him at a high rate of speed. Sheriff Knighton called Deputy Coby Schmittou, who subsequently clocked the car at eighty-two m.p.h. and conducted a traffic stop. The driver of the car was Mr. Layton, and his wife, Josette Layton, was in the front passenger’s seat. The car was registered in the names of both appellant and his wife.
After Deputy Schmittou made the stop, Sheriff Knighton arrived at the scene and gave assistance. Sheriff Knighton heard Mr. Layton tell Deputy Schmittou that he had a weapon in the car, and a loaded gun was found in plain view between the driver’s seat and the console. At that time Mr. Layton was removed from the vehicle and placed under arrest. Sheriff Knighton found a backpack in the rear of the vehicle behind the passenger’s seat, and upon being questioned Mrs. Layton advised that it was her bag. Inside the backpack the police found a Crown Royal bag containing 13.6 grams of crack cocaine and 2.6 grams of marijuana. Also in the backpack was about $400 in cash and several of Mrs. Layton’s personal belongings, some of which contained her name. Sheriff Knigh-ton acknowledged that no fingerprint analysis was conducted, and he did not recall finding any |sitem in the backpack with Mr. Layton’s name on it. Deputy Schmit-tou also testified for the State, and he confirmed that Mr. Layton claimed ownership of the gun.
Appellant’s wife testified against him at the trial. Mrs. Layton testified that they had been married for four years and lived in Louisiana near the Arkansas border. She stated that throughout their marriage they had both been selling crack cocaine out of their home. Mrs. Layton admitted joint ownership of the cocaine seized by the police in the present case, and previously entered a negotiated guilty plea to possession of cocaine with intent to deliver with the condition that she testify against her husband.
Mrs. Layton testified that on the day of their arrest they had driven to El Dorado and bought the cocaine from a man nicknamed Thug. She stated that Mr. Layton went in and purchased the cocaine from Thug at Thug’s grandmother’s trailer. Mr. Layton then gave the cocaine to Mrs. Layton and proceeded to drive toward home. According to Mrs. Layton, she put the cocaine in the Crown Royal bag, and then put that in the arm rest. She stated that she did not place the Crown Royal bag in her backpack, but indicated that Mr. Layton must have done that when they stopped at a gas station and she went inside to pay. Mrs. Layton stated that Mr. Layton knew all of their customers and did most of the selling. She had witnessed him selling cocaine numerous times.
In this appeal, we first address Mr. Layton’s challenge to the sufficiency of the evidence to support his convictions. When a defendant challenges the sufficiency of the evidence, we consider only the evidence that supports the guilty verdict. Walley v. State, |4353 Ark. 586, 112 S.W.3d 349 (2003). The test is whether there is substantial evidence to support the verdict. Id. Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id.
Mr. Layton argues on appeal that his convictions for possession of a controlled substance with intent to deliver and simultaneous possession of drugs and firearms must be reversed because there was no evidence to corroborate his accomplice’s testimony that he was in joint possession of the cocaine or even knew of its presence in the vehicle. Mr. Layton correctly asserts that, pursuant to Ark.Code Ann. § 16-89-lll(e)(l) (Repl.2005), a felony conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Id. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Tate v. State, 357 Ark. 369, 167 S.W.3d 655 (2004). Rather, it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime. Id However, evidence that only raises a suspicion of guilt is insufficient. Id The presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime are relevant facts in determining the connection of an accomplice with the crime. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996).
|sIn the present case, Mr. Layton asserts that other than his wife’s testimony, the State offered no proof that he possessed the cocaine. He notes that the cocaine was found in a backpack belonging to Mrs. Layton, which was located behind her seat in the car. Although appellant was driving the vehicle, he points out that it was registered in both of their names. In Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994), our supreme court held that joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession, and that there must be some other factor linking the accused to the drugs. Mr. Layton submits that other than Mrs. Layton’s testimony there were no factors linking him to the cocaine, and because of this lack of corroboration his directed verdict motions should have been granted with respect to the drug-related charges.
We hold that there was sufficient evidence to support Mr. Layton’s drug convictions. The testimony of his wife that he bought the cocaine and that they were both involved in a drug-dealing operation was corroborated by other evidence that tended to connect Mr. Layton with possession of the drugs. In Mings v. State, supra, the supreme court held that among the factors to consider in a joint-possession case are whether the accused is the owner of the automobile or whether he exercises dominion or control over it. Here, Mr. Layton not only was a co-owner of the car but he was driving it when he was stopped by the police for speeding. There was also testimony that he had been stopped for speeding in the same vehicle two months earlier. Moreover, Mr. Layton admitted to the police that he was in possession of the loaded handgun that was in plain view and easily accessible to him at | f;the time of the stop. Our supreme court has recognized that firearms are considered a tool of the narcotics dealer’s trade. See Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995); Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). Finally, it is undisputed that Mr. Layton was in close proximity to the crimes and was closely associated with his accomplice, to whom he had been married for four years.
In Tate v. State, supra, our supreme court made it clear that while the corroborating evidence must be stronger evidence than that which merely raises a suspicion of guilt, the corroborating evidence in a case such as this need not rise to the level of proof necessary to support a constructive possession conviction. While the corroborating evidence would not have alone been sufficient to support a conviction, we have concluded in the present case that there was sufficient corroborating evidence tending to connect Mr. Layton with the drug crimes. Therefore, we hold that the trial court did not err in denying Mr. Layton’s motions for directed verdict.
17Although technically not an issue pertaining to the sufficiency of the evidence, Mr. Layton also challenges his conviction for felon in possession of a firearm under this point on appeal. He notes that the jury found him guilty of the two drug charges, but was not asked to deliberate and consider whether he was guilty of being a felon in possession of a firearm. Instead, during the sentencing phase, the trial court advised the jury:
Ladies and gentlemen, this morning when we started, I told you that there were two charges pending against Mr. Layton. In fact, there were three charges pending against him. He was also charged with the criminal offense of being a felon in possession of a firearm. By finding him guilty this afternoon of simultaneous possession of drugs and a firearm, you have in effect, also found him guilty of being a felon in possession of a firearm. I tell you that because now you will be asked to render a sentence on all three of those charges.
Mr. Layton asserts that it was not the job of the trial court to make a finding of fact for the jury, that the question of whether he was a felon in possession of a firearm was never presented to the jury, and that the jury never made any finding of guilt on that charge. As such, he requests reversal of that conviction.
Mr. Layton’s argument challenging his conviction for felon in possession of a firearm cannot be reached on appeal because there was no objection made at trial and it has not been preserved for review. In Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992), the appellant argued that he was convicted of a charge not named in the charging instrument, and in affirming the conviction the supreme wrote:
[Ajppellant has not preserved this argument for our review. Appellant did not object to the charging instrument at trial. The trial court was not apprised of the error about which appellant complains and made no ruling for our review. As this |sargument is raised for the first time on appeal, it is not preserved for our review. Mays v. State, 308 Ark. 39, 822 S.W.2d 846 (1992). We point out that while it is true that being convicted of a crime for which one was not charged is a violation of due process, Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990), Hedrick v. State, 292 Ark. 411, 730 S.W.2d 488 (1987), even constitutional arguments are waived when argued for the first time on appeal. Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992).
Id. at 308, 842 S.W.2d at 435.
In the present case, pursuant to Mr. Layton’s motion in limine the State offered no proof of his prior felonies prior to the jury finding him guilty of the two drug-related offenses. During the sentencing phase, without objection, the State admitted five certified felony convictions. Appellant never objected to the manner in which the trial court handled the felon-in-possession charge, nor did he object to the instructions to the jury during sentencing or the sentence returned by the jury. Moreover, during his closing argument at the sentencing hearing, appellant’s counsel acknowledged the prior felony convictions and explained to the jury why these convictions were not revealed during the guilt phase of the trial. The State clearly presented proof of the prior convictions, and proved that Mr. Layton was in possession of a firearm as found by the jury in the guilt phase. There was no objection made below, and we cannot reach the merits of this argument as it is being raised for the first time on appeal.
Mr. Layton’s remaining argument is that the trial court erred in not granting his pretrial motion to dismiss for lack of a speedy trial. Prior to trial, appellant argued to the trial court that he had not been tried within twelve months given that he was arrested on |nJuly 29, 2005, and the trial date was August 22, 2007. The trial court identified several excludable periods and denied the motion. Mr. Layton now contends that he made a prima facie case for a speedy-trial violation and that the State failed to show that the delay was the result of the defendant’s conduct or otherwise justified.
Our supreme court discussed the speedy-trial requirements in Turner v. State, 349 Ark. 715, 720-21, 80 S.W.3d 382, 386 (2002), as follows:
Under Ark. R.Crim. P. 28.1, an accused must be brought to trial within twelve months unless a necessary delay occurs as authorized in Ark. R.Crim. P. 28.3. Gwin v. State, 340 Ark. 302, 9 S.W.3d 501 (2000). This means the accused must be tried within twelve months of the day the charges were filed, except that if prior to that time the defendant has been continuously held in custody, or has been lawfully at liberty, the time for trial commences running from the date of arrest. Ark. R.Crim. P. 28.2. Once a defendant shows his trial took place outside the applicable speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant’s conduct or otherwise justified. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). If a defendant is not brought to trial within the requisite time, Ark. R.Crim. P. 30.1 provides that the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that speedy-trial violation. Ferguson, supra.
Mr. Layton is correct that he made a prima facie case that his speedy-trial right was violated, given that his trial did not occur until 754 days after his arrest. Nonetheless, the trial court’s docket sheet reflects numerous excludable periods, as identified by the trial court prior to trial, the aggregate of which put the trial date within the required twelve-month period.
| l0In particular, the docket sheet reflects that the case was passed from November 17, 2005, through January 5, 2006 (49 days) at the request of the appellant. The case was again passed at appellant’s request from March 2, 2006, through May 4, 2006 (63 days). Mr. Layton failed to ap pear on May 4, 2006, and next appeared 28 days later on June 1, 2006. Under Rule 28..3(e), a period of delay resulting from the absence of the defendant is excluded from computation. Appellant again requested and was granted a continuance from July 6, 2006, through September 7, 2006 (63 days). Finally, the docket sheet reflects that Mr. Layton again failed to appear and his next appearance was not until May 3, 2007, which was 238 days after the last scheduled trial date.
The aggregate of the above excluded periods is 441 days. Mr. Layton was brought to trial'in 754 days, leaving only 313 chargeable to the State. While Mr. Layton complains on appeal that the State offered no argument at the time his speedy-trial motion was made, the docket contained in the record clearly demonstrated that Mr. Layton was timely brought to trial as found by the trial court. Because Mr. Layton was brought to trial within twelve months as calculated under Rule 28, the trial court correctly denied his motion to dismiss.
Affirmed.
GRUBER, GLOVER, and BROWN, JJ, agree.
VAUGHT, C.J., and MARSHALL, J., concur in part; dissent in part.
. Although irrelevant, the dissenting opinion correctly asserts that the ownership of and control of a vehicle occupied by a husband and wife raises no suspicion of criminal activity, and that a man is not normally charged with knowledge of the contents of his wife's purse. Even so, there is something suspicious about owning and driving a car containing 13.6 grams of crack cocaine, and the husband's wife testifying that the husband is a drug dealer and the cocaine in their car had just been purchased for resale. However, reasonable suspicion is not the issue. The issue is whether wife's testimony is corroborated by evidence that in some degree tends to connect husband with the crime. As discussed in our opinion, we hold that there is. And we do not hold that gun possession equals drug dealer as so characterized by the dissent. Rather, the possession of a firearm coupled with ownership and control of a vehicle constitutes evidence tending to connect a person with a large amount of concealed drugs found in that vehicle.
. The trial court mistakenly stated that this continuance was granted on February 2, 2006, but the docket sheet reflects the correct date. | [
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ROBERT J. GLADWIN, Judge.
| Appellant Curtis Donaldson, age fifty-two, appeals his conviction by a Drew County jury on a charge of harassment, pursuant to Arkansas Code Annotated section 5-71-208 (Repl.2005), for which he was sentenced to six months’ imprisonment in the Drew County Jail and fined $1,000. On appeal, he argues that the circuit court abused its discretion by admitting evidence of other allegations of sexual misconduct. He also argues that the circuit court erred when it defined “forcible compulsion” for the jury during the voir dire portion of the trial. We find merit in appellant’s first argument and reverse and remand for a new trial. Additionally, we hold that appellant’s second point on appeal is moot.
'Facts
li>On October 15, 2007, appellant was charged by felony information with two counts of felony-sexual assault in the second degree and one count of attempted felony sexual assault in the second degree, each related to an incident with a different young woman. Pursuant to Arkansas Rule of Criminal Procedure 22.2 (2008), appellant moved to sever the charges based upon the grounds that the charges were not sufficiently the same or similar in character and were not part of a single scheme or plan. After a hearing on November 26, 2007, the circuit court granted the motion to sever the charges in an order entered on December 8, 2007.
Appellant subsequently filed a motion in limine on April 7, 2008, to prohibit the State from bringing the other two severed charges to the attention of the jury, specifically through testimony of the alleged victims, during the trial on the first charge. At an omnibus hearing on April 11, 2008, appellant argued that his fundamental-due-process right to the presumption of innocence, the prohibitions of Arkansas Rule of Evidence 404(b) (2008), and the lack of relevance under Arkansas Rule of Evidence 402 (2008) required that the testimony be excluded.
The circuit court entered an order on April 17, 2008, denying the motion and allowing the evidence of the second and third charges to be introduced at the jury trial on the first charge. The circuit court specifically found the evidence in question to be admissible on the issue of intent— whether appellant sought sexual gratification when he | (¡touched the victim’s breast — an element of the felony-sexual assault in the second-degree charge. Specifically, the circuit court found that the similarities among the three victims’ ages, the fact that they each were employed at the same movie theater where appellant was employed as a security guard, and the pattern of abuse was relevant to the intent element of the offense.
Additionally, during the voir dire portion of the trial, the circuit judge stated to the jury, over objection by appellant’s counsel, that an unconsented touching of another would satisfy the charge’s requirement that it be committed with “forcible compulsion.” The jury convicted appellant, not on the original charge of felony-sexual assault in the second degree, but rather of a lesser crime of misdemeanor harassment.
A judgment and commitment order was entered on April 22, 2008, and appellant filed a timely notice of appeal on the same date. An amended judgment and commitment order was filed on May 5, 2008, to show that it was the result of a jury verdict rather than a plea, and appellant filed a timely amended notice of appeal on May 22, 2008.
I. Admission of Allegations of Sexual Misconduct
Although appellant acknowledges that this case deals with the interpretation and application of Arkansas Rule of Evidence 404(b), he attempts to shift the focus to a review of constitutional considerations of due process and presumption of innocence. We disagree with that assertion and hold that it is, at its core, an evidentia-ry question regarding the ^admissibility of testimony related to other severed charges. Matters pertaining to the admissibility of evidence, and specifically, the admission or rejection of evidence under Arkansas Rule of Evidence 404(b) are left to the sound discretion of the trial court, and we will not reverse absent an abuse of that discretion. Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006); Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005).
According to Arkansas Rule of Evidence 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Such evidence is permissible for various other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Ark. R. Evid. 404(b).
Under Rule 404(b), evidence of other crimes will be admitted if it has independent relevance, and its relevance is not substantially outweighed by the danger of unfair prejudice. Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). As to whether the evidence is independently relevant, it must be relevant in the sense of tending to prove some material point rather than merely trying to prove the defendant is a criminal. Id. Any circumstance that ties a defendant to the crime or raises a possible motive for the crime is independently relevant and admissible as evidence. Jackson v. State, 359 Ark. 297, 197 S.W.3d 468 (2004).
Appellant challenges the circuit court’s decision to admit certain testimony regarding two other allegations of sexual misconduct on the part of appellant. He argues that by fallowing the other two alleged victims’ testimony into evidence, the circuit court essentially allowed Arkansas Rule of Evidence 404(b) to be a “backdoor” to the severance of the three charges provided by Arkansas Rule of Criminal Procedure 22.2.
The first of the three severed charges is the issue in the instant case. It involved an incident with Nichole Hensley, a coworker of appellant,- who . was' nineteen-years old at the time of the incident. The alleged second-degree-sexual assault occurred at Ms. Hensley’s residence, a private place, where no one else was present. Viewing the testimony in the light most favorable to the State, appellant went to Ms. Hensley’s personal residence uninvited. It is undisputed that no one else was present, and that Ms. Hensley answered the door in a state of partial undress. .She allowed appellant into the residence; and while he was there, skin-to-skin sexual contact occurred between them, specifically, appellant touched Ms. Hensley’s breast with his hand. Ms. Hensley admitted that appellant neither used any physical force against her nor threatened her. It appears that he left the premises without incident when Ms. Hensley asked him to leave, and appellant claimed “consent” as his defense. There is no issue regarding appellant’s intent with respect to this particular charge, as he acknowledges that he intended to obtain sexual gratification from the contact with Ms. Hensley.
Count two of the original information was an attempted-sexual-assault charge regarding an alleged incident between appellant and then seventeen-year-old Kristen | (¡Taylor, which occurred on July 12, 2007, approximately two months after the alleged assault against Ms. Hensley. That alleged incident was said to have occurred at a public place, specifically the Monticello Maleo movie theater where both appellant and Ms. Taylor were employed. Ms. Taylor had come to the movie theater with her aunt, uncle, and father. The two men went to see one movie while Ms. Taylor and her aunt saw another movie showing across the hall. Ms. Taylor and her aunt sat next to each other during the movie, and at some point during the movie, appellant came in and sat down next to Ms. Taylor. Her testimony was that appellant put his hand on her leg, below her shorts, and moved his hand upward on her thigh. She explained that he never reached under her shorts or moved his hand that far up because she got up and walked out of the theater.
Appellant maintains that he merely “goosed” Ms. Taylor’s leg at a scary part in the movie. Appellant points out that this alleged incident occurred in a public place with many other people around, including one of Ms. Taylor’s family members. Additionally, there is no claim of consent with respect to this charge; accordingly, appellant contends there was no reason to allow this testimony in to show “absence of mistake” under Rule 404(b).
The third count of the original information involved the alleged second-degree sexual assault of then seventeen-year-old Katie Taylor. Ms. Taylor is not related to Kristen Taylor, but she also worked at the movie theater with appellant. On July 25, 2007, Ms. Taylor was at the Monticello City Park with several of her friends. After Ms. Taylor and a |7friend approached appellant in his truck, Ms. Taylor got in the passenger seat to discuss her friend’s traffic ticket with appellant. Upon exiting the vehicle, appellant asked Ms. Taylor for a hug, which was undisputedly a common practice among all the employees of the movie theater. Ms. Taylor testified that as she reached into the car through the window to hug appellant, he asked her for a kiss. She explained that she initially said “no,” but he continued to hold her and asked again for a kiss. Ms. Taylor testified that she told him she would kiss him on the cheek, but as she put her cheek to his cheek, he reached his arm around her back and grabbed her breast through her clothing. Appellant contends that he merely grazed the side of her breast as she disengaged from the hug. As with count two, the alleged sexual assault at the movie theater, there was no claim of consent by appellant with regard to this incident. Accordingly, appellant claims that there is no basis for attempting to prove there was an “absence of mistake” with this testimony.
Appellant asserts that the only real similarities between the incidents is that the young women were close in age — between seventeen and nineteen — and all knew appellant from working together at the movie theater. He submits that the two other women’s stories have no point of “independent relevance” in regard to the charge that was actually being tried in the instant case. See Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). He claims that the minor similarities are not enough to pass the constitutionally mandated ^prohibition implemented by way of Rule 404(b) that safeguards the presumption of innocence in a criminal case.
Our supreme court noted in Morris v. State, 367 Ark. 406, 240 S.W.3d 593 (2006), that the degree of similarity between the circumstances of prior crimes and the present crime required for admission of evidence under Rule 404(b) is a determination that affords considerable leeway to the trial judge, and may vary with the purpose for which the evidence is admitted. However, appellant reiterates that there was no issue in the charge being tried in the instant case regarding his intent with respect to sexually touching Ms. Hensley in the privacy of her residence. Accordingly, there is no material point to be proved on that subject by utilizing the other two young women’s stories, leaving only one other purpose for it — to show him as a “bad guy.”
Rule 22.2(a) provides a defendant the right to a severance of same or similar crimes joined against him that are not part of a single scheme or plan. Our supreme court stated in Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994), that the purpose of the rule is to give effect to the principle that the State cannot bolster its case against a defendant by proving he has committed other similar offenses. However, Rule 404(b), as currently interpreted, allows evidence of severed charges to come into the one at trial if there is a “similarity” in the commission of the offenses. See Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005). Appellant notes the conflict between the two, and acknowledges that, while the supreme |9court could make a Rule 404(b) exception to Rule 22.2, it has yet to do so. He respectfully submits that until Rule 22.2 is changed, “its letter and more importantly its intent (to keep out other alleged bad acts) ought to be enforced.”
The State strongly refutes appellant’s arguments, and points us to the limiting instruction that the circuit court issued when it became apparent that the other two alleged victims were going to testify about their specific incidents with appellant. The circuit court warned the jury before each young woman testified that the testimony could not be used to prove appellant’s character, but could only be used as evidence of motive, opportunity, intent, or absence of mistake or accident. The State claims that the limiting instruction was sufficient to cure, or at least sufficiently minimize, any prejudicial effect of the alleged victims’ testimony. See Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995). We disagree.
The State also maintains that upon looking at the totality of the testimony, the circuit court properly determined that the testimony from the other two alleged victims was significantly similar to the alleged victim in the first trial to be relevant to show intent to obtain sexual gratification. The State claims that the evidence supports the conclusion that none of the victims would have known appellant had they not worked with him at the movie theater. Further, all three of the young women testified as having viewed appellant linas a grandfather; however, the evidence also indicates that they each called him by his first name, Curtis, which he claims indicates that they considered him to be on their level.
The State urges that the circuit court was free to determine that (1) he intended to establish a rapport of ease with each of them, and (2) he then used the relationships with the girls to touch them inappropriately. In this particular case, appellant’s defense to the charge was that what happened between Ms. Hensley and him was consensual. The State argues that, as such, evidence that he previously had treated two other young female co-workers similarly was independently relevant to establish that appellant sexually assaulted the victim in this case, thus the evidence was properly admitted. See Fells v. State, 862 Ark. 77, 207 S.W.3d 498 (2005).
We disagree. There was no issue of intent with respect to the offense charged in the instant case. This court cannot perceive of any independent relevance that the testimony of the alleged victims in the other two severed charges have in this particular case. This is precisely the type of evidence that Rule 404(b) was designed to exclude. For this reason, the decision of the circuit court is reversed, and the case is remanded for a new trial.
II. Circuit Court’s Comment on Forcible Compulsion
Appellant argues that the circuit court erred when it defined “forcible compulsion” for the jury during the voir dire stage of the trial. Appellant acknowledges, however, that the point may be moot because the jury acquitted him of sexual assault in the second degree, _|jjwhich contained the element of forcible compulsion. Irrespective of that fact, he reminds us that this court has addressed matters on appeal that are likely to arise on retrial as a matter of judicial economy. See Stone v. State, 321 Ark. 46, 900 S.W.2d 515 (1995).
The original charge at issue in this trial was sexual assault in the second degree based upon an information that alleged that he “did by forcible compulsion engage in sexual contact,” a violation of Arkansas Code Annotated section 5-14-125 (Repl. 2006). “Forcible compulsion” means physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person. Ark.Code Ann. § 5-14-101(2) (Repl.2006). However, appellant was eventually convicted on the lesser charge of harassment, pursuant to Arkansas Code Annotated section 5-71-208 (Repl.2005), which contains no such element.
As a general rule, the appellate courts of this state will not review issues that are moot. Dickinson v. State, 372 Ark. 62, 270 S.W.3d 863 (2008). To do so would be to render advisory opinions and this we will not do. Id. A case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id. In other words, a moot case presents no justiciable issue for determination by the court. Id. Furthermore, appellate courts do not sit for the purpose of determining speculative and abstract questions of law or laying down rules for future conduct. Id.
Our supreme court has recognized two exceptions to the mootness doctrine, one of which involves issues that are capable of repetition, yet evade review. See, e.g., Dickinson, \ nsupra. The other mootness exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id. We hold that the instant appeal does not fall within either of the exceptions to the mootness doctrine. Accordingly, we decline to address this issue.
Reversed and remanded.
VAUGHT, C.J., and KINARD, J., agree. | [
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DOUG MARTIN, Judge.
| Appellant William Stacey Gillison (Stacey) appeals from an order of the Chicot County Circuit Court that, among other things, modifies Stacey’s child-support obligations and orders him to pay attorney’s fees for his ex-wife, appellee Mary Carol Talbot Gillison (Carol). We affirm all but one of the issues raised in this appeal; we reverse and remand the award of attorney’s fees for further consideration.
Stacey and Carol were married February 14, 1992, and divorced by decree entered October 4, 2005. Incorporated into the divorce decree was a “Custody, Child Support, and Property Settlement Agreement” (the Agreement). Pursuant to the Agreement, Carol was to have physical custody of the couple’s four children, while Stacey was given “reasonable and liberal visitation rights.” In addition, the Agreement provides that Stacey was to pay child |?support in the amount of $1500 per month for the care and maintenance of the minor children so long as they lived with Carol, and Stacey was “responsible for payment of the costs for the minor children to attend a public or private school [including] the cost for tuition, uniforms, and bus fees.”
The Agreement further provides that Carol and the parties’ minor children be allowed to live in the marital home in Lake Village “until the youngest child graduates from high school or turns eighteen (18), whichever occurs last.” The Agreement contains the following proviso regarding the marital home:
Should [Carol] remarry, live with another person, or move another person into the marital home prior to May of 2013, then the marital home shall be sold or appraised immediately and [Carol] shall pay fifty percent of the equity or appraised value to the William N. Gillison Revocable Trust.
Carol agreed to pay the mortgage payments on the home.
Concerning alimony and spousal support, the Agreement provides that Stacey was to pay Carol $1500 per month as alimony. As each child graduated or completed his or her high school education, the spousal support would be reduced by $375 per month following graduation and would be eliminated entirely no later than May 2013. The Agreement provides that spousal support would terminate immediately if Carol remarried, lived with another man, or moved another man into the marital home.
On February 9, 2009, Stacey filed a motion for contempt in the Chicot County Circuit Court, alleging that Carol had failed to timely make the mortgage payments as required under the Agreement. Stacey sought modification of the Agreement and divorce |sdecree to transfer direct responsibility for the mortgage payments from Carol to Stacey. In addition, Stacey alleged that Carol had violated the divorce decree by moving another person into the marital residence.
Carol filed an answer to Stacey’s motion for contempt in which she admitted that “occasional mortgage payments on the realty have been a few days late,” but she asserted that the reason for the late payments was Stacey’s failure to make his alimony and child-support payments on time. Carol agreed that responsibility for the mortgage payments should be transferred to Stacey, but she denied that the home should be sold.
Carol filed a counterpetition for modification of the Agreement in which she alleged that the monthly child-support payment should be increased to $2500 per month; that the responsibility for the mortgage payments, taxes, and insurance on the marital home should be transferred to Stacey; that the property should be sold and equally divided when the couple’s youngest child reached the age of eighteen and graduated from high school; that alimony payments should remain $1500 per month and never be reduced until they terminated; and that Stacey should be ordered to cease and desist from deducting from his child-support payments expenses associated with taking the children on trips and vacations.
Carol amended her counterpetition on May 21, 2009, asking the court to order Stacey to cease and desist from threatening Carol and the children with stopping the support payments and selling the house. She filed a second amended coun-terpetition on July 1, 2009, asserting that their oldest child had graduated from high school in May 2008, thus reducing [4Stacey’s alimony obligation to $1125 per month. She alleged that Stacey had not paid alimony for the months of June and July 2008 and was thus in arrears. Carol also noted that the child-support agreement does not state that Stacey could automatically reduce his child-support payments when a child graduated from high school or reached the age of eighteen, and she complained that Stacey had unilaterally reduced his child-support payments from $1500 to $1125 per month when their oldest child graduated from high school, without first obtaining permission from the court. Accordingly, Carol alleged that Stacey was $2246 in arrears for the months of June 2008 through July 2009.
The matter proceeded to trial on November 3, 2009, and the circuit court issued a letter opinion on March 23, 2010. The court noted that the couple’s oldest child turned eighteen on March 30, 2008, and graduated from high school in May of that year; in addition, another child, who had been living with Stacey since August 2009, was to turn eighteen in July 2010. The court also pointed out that Carol had not remarried and continued to live in the marital residence with two of the parties’ minor children as well as her one-and-a-half-year-old child by another man, Terry Seaman.
Regarding the marital residence, the court found that the parties stipulated that the Agreement was contractual in nature and independent of the divorce decree. According to the terms of the Agreement, the court stated that the marital home had to be sold only if Carol should remarry, live with another person, or move another person into the marital home prior to May 2013. The court found that none of these contingencies had occurred, |fiso the home should not be sold at that time. The court stated that it “[did] not consider the one and one-half year old child born of [Carol’s] relationship with Terry Seaman as being ‘another person’ as contemplated by the provision prohibiting moving another person into the marital home.” The court did order, however, that Stacey was to take over the mortgage payments and should receive credit for the monthly house payment against his child-support obligation.
Regarding the alimony, the court found that the Agreement was an independent contract and that, in the absence of the occurrence of any of the events specified therein, the court had no authority to modify or terminate alimony. Because Carol had not “remarried, lived with another man, or moved another man into the marital home,” the court found that alimony should not be terminated. The court noted that the oldest child had turned eighteen, and Stacey was thus entitled to reduce the alimony payments by $875 per month beginning in June 2008. The court ruled, however, that Stacey had violated the terms of the agreement by unilaterally reducing his alimony obligation by half during his two months of extended summer visitation during the summer of 2008. Because that provision referenced only child support, not alimony, the court found that Stacey’s reduction in alimony was improper and that he was indebted to Carol for that additional amount.
|fiThe court then considered the question of child support, finding that, pursuant to the Agreement, Stacey was to pay $1500 per month in child support “for as long as [the children] live with [Carol].” Because there was no provision in the Agreement for an automatic reduction in child support when a child reached eighteen years of age and graduated from high school, the court found that Stacey might have been entitled to an adjustment upon proper petition when the oldest child turned eighteen or the second-oldest child moved in with him, but that he had not sought a modification or reduction through the date of the court’s order.
Relying on Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005), the court determined that Stacey was entitled to an automatic termination of his support obligation for the oldest child when the child turned eighteen in May 2008. The court then calculated the amount of Stacey’s child-support obligation from June 2008 through March 2009 for the other three children, concluding that Stacey owed Carol $7070 in child support. The court also found that Stacey was $2520.35 in arrears for the period from April 2, 2009, through the trial date. In making its calculations, the court specifically considered the increase in Stacey’s income, the increased age of the children and their increasing needs, the oldest child’s reaching the age of eighteen, and the second-oldest child’s moving in with Stacey.
Finally, the court denied Stacey’s request to give him an accounting credit or offset for the expenses of the children’s private-school education. The court found that “[e]ducational expense was a matter that was part of the independent agreement or contract |7thoroughly negotiated and entered into by the parties in 2005, and the court declines to grant a deduction from net pay for that expense.”
The court entered an order on May 28, 2010, reflecting the findings made in its letter opinion. Stacey filed a timely notice of appeal on June 17, 2010, and he now raises five arguments for reversal.
Our standard of review for an appeal from a child-support order has been set out frequently: we review equity cases de novo on the record, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Ark. R. Civ. P. 52(a); McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). In reviewing a circuit court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. McWhorter, supra; Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000). As a rule, when the amount of child support is at issue, we will not reverse the circuit court absent an abuse of discretion. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). However, a circuit court’s conclusion of law is given no deference on appeal. Kelly, supra; City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996).
In his first argument on appeal, Stacey contends that the circuit court erred when it “retroactively” modified the child-support order effective June 1, 2008, instead of March 12, 2009, when Carol filed a motion to modify Stacey’s child-support obligation. As noted |8above, the court found that Stacey was correct in assuming that he was no longer responsible for supporting the oldest child once the child turned eighteen in May 2008. See Ark. Code Ann. § 9-14-237 (Repl.2009); Office of Child Support Enforcement v. Tyra, 71 Ark.App. 330, 29 S.W.3d 780 (2000). Given the termination of Stacey’s support obligation by operation of law in May 2008, the court determined Stacey’s current support obligation to the remaining children.
Citing Ward v. Doss, supra, the court determined that Stacey’s support obligation should be calculated from June 2008 for the remaining children, taking into account his income as of that date, and that he should be given retroactive credit or assessed for any amount he paid between June 1, 2008, and March 12, 2009, that exceeded or was less than the amount he owed for the remaining children. Based on the court’s consideration of Stacey’s income as of June 2008, the court calculated that Stacey owed $17,199 but had paid only $10,129; thus, the court found Stacey in arrears for $7070.
On appeal, Stacey argues that the court improperly modified his support obligation retroactively, contending that Ward v. Doss, supra, is inapplicable and that the court clearly erred in calculating “retroactive” child support prior to the date on which Carol filed the motion for modification of support.
In Ward v. Doss, Shelby and Teresa Ward divorced on January 9, 1996, and Teresa was awarded custody of the couple’s three children. Shelby was ordered to make biweekly child-support payments of $220. On August 7, 2003, Shelby filed a motion requesting a [9change of custody for one daughter and a cancellation of child support for the oldest daughter, who had turned eighteen on September 11, 2002, and had graduated from high school. Ward, 361 Ark. at 158, 205 S.W.3d at 769. On September 17, 2003, Shelby filed a motion for abatement of child support and set-off, seeking retroactive credit for child support paid for the oldest daughter after she turned eighteen. Id. The trial court denied his request for retroactive modification of support, and Shelby appealed. Id.
On appeal, the supreme court held that Shelby’s obligation to pay child support for the oldest child terminated by operation of law when she turned eighteen pursuant to Ark.Code Ann. § 9-14-237. The court noted that the statute terminates the obligation to support a child under its terms without any action on the part of the obli-gor. Ward, 361 Ark. at 161, 205 S.W.3d at 772. Thus, the court concluded that
Shelby’s obligation to pay child support for [the oldest child] expired by operation of law on September 11, 2002, when [she] turned eighteen years old and had graduated from high school. However, Shelby’s duty to provide child support for [the other two children] remained. We must reverse and remand this issue for the circuit court to recalculate child support due under the then-applicable Family Support Chart [for those two children] as of [the oldest child’s] eighteenth birthday on September 11, 2002, taking into account Shelby’s income as of that date.
Id. at 162, 205 S.W.3d at 772-73 (emphasis added).
1 inThe circuit court in the instant case specifically referenced this language in making its calculations and reaching its conclusions. Nonetheless, Stacey argues that the court’s actions constituted an impermissible “retroactive modification” of child support. In support of his argument, he cites Yell v. Yell, 56 Ark.App. 176, 939 S.W.2d 860 (1997), in which it was held that, absent a specific finding of fraud in procuring an existing support finding, it is an abuse of discretion to impose a retroactive modification-of-support order beyond the filing date of a petition to modify. Yell, 56 Ark.App. at 179, 939 S.W.2d at 862.
Yell, however, is distinguishable. In that case, the mother (Elizabeth) and father (Garry) had an agreement, incorporated into an August 10, 1988 order modifying their divorce decree, that Elizabeth would obtain primary custody of their child, but Garry would gain significantly expanded visitation rights and would no longer have to pay child support. On June 14, 1994, Elizabeth filed a petition to modify the August 10, 1988 order such that she would begin receiving child-support payments again. The court granted her motion and ordered Garry to pay child support retroactively to 1991, the year Elizabeth resumed full custody of their child. Id. at 177-78, 939 S.W.2d at 861-62.
On appeal, Garry argued that the trial court erred in retroactively imposing a financial obligation for support prior to the date of filing of the petition for modifica tion. This court agreed, holding that retroactive modification of a court-ordered support obligation may be assessed only from the time that a petition for modification is filed. Id. at 178, 939 S.W.2d at 862.
| nHere, however, the circuit court did not act on a petition for modification; rather, when confronted with Stacey’s request for an order providing for an automatic reduction in child support, the court properly acknowledged that the support obligation needed to be adjusted to reflect the fact that Stacey no longer owed support for his oldest child. Having done that, the court then — pursuant to the supreme court’s guidance in Ward v. Doss— recalculated the support for the remaining children as of the date that the oldest child turned eighteen, “taking into account [Stacey’s] income as of that date.” Ward, 361 Ark. at 162, 205 S.W.3d at 773. The circuit court correctly applied case law from our supreme court that was entirely on point; accordingly, we conclude that the circuit court did not abuse its discretion.
In his second point on appeal, Stacey argues that the circuit court erred when it refused to order the sale of the marital home on the grounds that, by having her child by another man live with her, Carol had “move[d] another person into the marital home.” As noted, the Agreement provides that the marital home was to be sold if Carol should “remarry, live with another person, or move another person into the marital home on or prior to May of 2013.” The circuit court found that Carol’s year- and-a-half-old child was not “ ‘another person’ as contemplated by the provision moving another person into the marital home.” On appeal, Stacey argues that the plain and ordinary meaning of “another person” includes a child.
112TMS argument requires us to construe the language of the Agreement. The first rule of interpretation of a contract is to give the language employed the meaning that the parties intended. First Nat’l Bank v. Griffin, 310 Ark. 164, 169, 832 S.W.2d 816, 819 (1992); Cook v. Cook, 2010 Ark. App. 758, 378 S.W.3d 275. It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words or phrases, but from the whole context of the agreement. Griffin, 310 Ark. at 170, 832 S.W.2d at 819. We must look to thé contract as a whole and the circumstances surrounding its execution to determine the intention of the parties. Id. at 170, 832 S.W.2d at 820. Further, in determining the true intentions of the parties, different clauses of a contract must be read together and construed so that all of its parts harmonize if that is possible. Harris v. Harris, 82 Ark.App. 321, 107 S.W.3d 897 (2003); Dodson v. Dodson, 37 Ark.App. 86, 825 S.W.2d 608 (1992).
Here, Stacey argues that “person” means “person,” and thus, bringing a child, who is a person, home from the hospital into the previous marital home triggered the sale clause of the Agreement. Stacey’s argument fails to consider the context of the Agreement as a whole. In particular, a different provision of the Agreement provides that alimony and spousal support were to be eliminated in the event that Carol should “remarry, live with another man, or move another man into the marital home.” (Emphasis added.) Thus, construing the contract as a whole, we can glean that the intent behind using the word “person” in the earlier provision concerning the home was meant to address the concern that | ^Carol might bring “another man” into the marital home. Accordingly, we cannot say that the circuit court abused its discretion in finding that Carol’s decision to raise her new baby in her home did not trigger the sale provision in the “Property” portion of the Agreement.
For his third argument, Stacey contends that the circuit court erred when it declined to grant a deviation from the child-support chart for educational expenses. In its order, the circuit court denied Stacey’s request to give him an accounting credit or offset the expenses of the children’s private-school education. Stacey argued below that, under Arkansas Supreme Court Administrative Order No. 10, educational expense is a relevant factor in determining child support and in deviating from the Family Support Chart. The court rejected Stacey’s motion because “[educational expense was a matter that was part of the independent agreement or contract thoroughly negotiated and entered into by the parties in 2005, and the court declines to grant a deduction from net pay for that expense.” The court specifically stated, however, that it did take that expense into consideration by discounting Stacey’s income.
On appeal, Stacey argues that the court erred in so finding because the “parties’ independent agreement regarding school expenses is irrelevant to the request for deviation.” He relies on language in this court’s opinion in Hyden v. Hyden, 85 Ark-App. 132, 148 S.W.3d 748 (2004), to the effect that the courts “will not countenance requiring the noncustodial parent to pay any more [in educational expenses] than the chart amount requires.” Stacey’s argument is without merit.
| HIn Hyden, the trial court entered an order that directed the father to pay child support of $1430 per month as well as $1221 in alimony. The order also provided that, if the couple’s child attended high school in Little Rock, all costs were to be paid by the mother. If, however, the child went to a military academy in Virginia, each party was to pay one-half of all expenses. The father’s child-support obligation would be suspended and abated during any academic year that the child went to the military academy. Hyden, 85 Ark.App. at 136, 148 S.W.3d at 750. The child began attending the military academy in the fall of 2002, after the father had filed a petition to modify the child-support arrangement in April 2002. The court entered an order in January 2003, finding that both parents were obligated to pay one-half of the expenses associated with the child’s attending the military academy and terminating the father’s $1430-per-month child-support obligation as of April 2002. In addition, the court ordered the mother to pay $536 per month in child support (as the child had moved into the father’s house) and to pay child support during the months when her child-support obligation would otherwise have been abated (i.e., during the academic years when the child was attending school in Virginia). Id. at 136-37,148 S.W.3d at 750.
In so doing, the trial court found that the provision in the previous order regarding the military academy was “in the nature of [child] support,” and thus the court believed it could modify that order. The court found, however, that to modify the previous order of “support,” there would have to be a material change in circumstances, which the court did not believe had been demonstrated. Id. at 137-38, 148 S.W.3d at 751. Thus, the court [ lficoncluded that it would not modify the previous order of “support,” and the mother appealed.
On appeal, this court noted that it was not clear whether the “equal sharing” provision concerning the expenses associated with the military academy was “set by the court or included by agreement of the parties.” Id. at 139,148 S.W.3d at 752. If the provision was by agreement of the parties, the court noted that, while independent contracts dealing with child sup port may be binding upon the parties, they are not binding upon the trial court. Id. Therefore, this court found that regardless of whether the order “represented a contractual agreement of the parties, the trial court was authorized to adjust child support upon a showing of changed circumstances.” Id. at 140, 148 S.W.3d at 752. The court went on to find that there had been a material change in circumstances and therefore concluded that the circuit court erred in finding that it had no authority to modify the July 2001 order. Id., 148 S.W.3d at 753.
This court went on to note that the trial court had specifically pointed out that the mother could not afford to pay one-half of the expenses associated with sending the child to military school. Id. at 141, 148 S.W.3d at 753. Against that backdrop, this court stated the following:
It is a matter within the custodial parent’s right to send or to continue to send his child to any particular school. However, if he chooses to continue sending the child to a $24,000 per year school, he should not expect and we should not countenance requiring the noncustodial parent to pay any more than the [child-support] chart requires. Any school expenses in excess of the child support paid by [the mother] to |1fi[the father] will be the [father’s] responsibility, as it was his or his son’s decision to incur the substantially increased expenses to attend [the military academy].
Id. at 141-42,148 S.W.3d at 754.
Thus, Hyden does not stand for the proposition for which Stacey cites it. The case does not unambiguously hold that a settlement agreement, in which the parties agree that one party should be responsible for educational expenses, is never binding on the parties to the extent that such provision is “in the nature of support.” Rather, on the facts presented in that case, the reviewing court simply did not disagree with the trial court that the agreement to pay educational expenses was “in the nature of support.”
Here, on the other hand, the trial court made a specific finding that Stacey’s agreement to pay educational expenses was part of a fully negotiated contractual agreement that the court declined to disturb. There was no finding — and there is no genuine argument on appeal — that the contractual provision to pay educational expenses was “in the nature of support” that should have been counted as supporting a deviation from the child-support chart. Accordingly, we conclude that the circuit court did not abuse its discretion in declining to find that Stacey’s contributions to the children’s educational expenses warranted a deviation from the child-support chart.
In what is actually Stacey’s final point on appeal, Stacey urges that, in the event this court affirms the circuit court’s application of Ward v. Doss, the circuit court nonetheless erred in “failing to consider” Stacey’s request for a deviation for purposes of calculating child |17support for payment of private-school tuition and expenses. He quotes a sentence from Ward, which stated that, in recalculating support in that case, the trial court’s
order must provide the court’s determination of the payor’s income, reciting the amount of support required under the guidelines, and reciting whether the court has deviated from the Family Support Chart as well as, in the case of a variance from the Chart, a justification of why the order varies as permitted under the statute.
Ward, 361 Ark. at 163-64, 205 S.W.3d at 773.
This argument is little more than a rehashing of Stacey’s complaint that the court did not grant him a deviation for the educational expenses he was ordered to pay. As discussed above, however, the circuit court correctly found that the payment of educational expenses was a matter governed by the independently negotiated contract between the parties. This was clearly a matter that was considered and addressed by the court. Therefore, this argument presents no basis for reversal.
Finally, Stacey contends that the circuit court erred in awarding attorney’s fees to Carol. At the conclusion of its letter opinion, the circuit court awarded Carol $2500 in attorney’s fees. Stacey argues that the circuit court’s award of attorney’s fees was in error because Carol’s attorney failed to move for attorney’s fees at trial. Stacey also complains that, while Carol testified that she had not paid her attorneys, there was neither testimony that she 11shad been billed by her attorneys for the services nor evidence presented of specific fees or costs that were incurred.
We find merit in Stacey’s second argument. The circuit court has the inherent power to award attorney’s fees in domestic-relations proceedings, and whether the circuit court should award fees and the amount thereof are matters within the discretion of the circuit court. Stout v. Stout, 2011 Ark. App. 201, at 10, 378 S.W.3d 844, 850; Miller v. Miller, 70 Ark. App. 64, 14 S.W.3d 903 (2000). In awarding attorney’s fees, the circuit court may use its own experience as a guide and can consider the types of factors set forth in Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). The court need not, however, conduct an exhaustive hearing on the amount of attorney’s fees because it has presided over the proceedings and gained familiarity with the case and the services rendered by the attorney. Stout, supra; Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983).
In the case at bar, however, the trial court awarded attorney’s fees without any discussion whatsoever and without providing any pertinent analysis of the Chrisco factors. If a trial court fails to consider the Chrisco factors when awarding attorney’s fees, we will reverse 119and remand for the trial court to make such an analysis. Stout, supra; see also Bailey v. Rahe, 355 Ark. 560, 142 S.W.3d 634 (2004); S. Beach Beverage Co. v. Harris Brands, Inc., 355 Ark. 347, 138 S.W.3d 102 (2003). Because there is no evidence that any such analysis took place in this case, we reverse and remand the fee award for proper consideration of the Chrisco factors.
Affirmed in part; reversed and remanded in part.
PITTMAN and ABRAMSON, JJ., agree.
. The parties' visitation schedule, incorporated into the Agreement, provided that, if "support” was current, “support shall abate by 50 percent” during Stacey’s periods of extended summer visitation.
. The statute provides that "[ujnless a court order for child support specifically extends child support after these circumstances, an obligor’s duty to pay child support for a child shall automatically terminate by operation of law ... [w]hen the child reaches eighteen (18) years of age unless the child is still attending high school.” Ark.Code Ann. § 9-14-237(a)(l)(A)(i) (Repl.2009).
. Stacey is wrong that Carol never specifically sought attorney's fees. In the May 21, 2009 amendment to her counterpetition for modification of the Agreement, Carol stated that she was "without funds to pay for attorney fees or expenses of litigation. Her attorney has received no retainer and is paying all out-of-pocket expenses. Carol requests the court to award [her] attorney ... a reasonable fee for services and cost of litigation.” Moreover, Carol testified without objection that she had not paid her attorneys.
. The Chrisco factors that may be considered by the trial court are (1) the experience and ability of the attorney; (2) the time and labor required to perform the legal services properly; (3) the amount involved in the case and the results obtained; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged in the locality for similar legal services; (6) whether the fee is fixed or contingent; (7) the time limitations imposed upon the client or by the circumstances; and (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. | [
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RITA W. GRUBER, Judge.
11 Elizabeth and Butch Walchli, the parents of A.W., bring this appeal from an order of the Sebastian County Circuit Court establishing monthly visitation between A.W. and his paternal grandmother, Tanni Morris, and her husband, Joe Morris. The Walchlis bring two points on appeal: first, they contend that the Mor-rises had no standing to pursue an action for grandparent visitation under Ark.Code Ann. § 9-13-103; second, they claim that the circuit court abused its discretion in awarding attorney’s fees to the ad litem and assessing one-half of the fees against the Walchlis. We agree with the Walchlis. Accordingly, we reverse the court’s order granting visitation to the Morrises and order the court to dismiss the Morrises’ motion. We also reverse that part of the court’s order assessing attorney’s fees against the Walchlis.
|2A.W. was born on December 31, 2002, to RayAnn Williams, who was not married at the time but was in a relationship with Butch Walehli. On December 29, 2005, a paternity order was entered establishing Butch as the natural father of A.W. and awarding joint custody to Butch and Ray-Ann, with Butch as the primary custodial parent. No other custody order has ever been entered. RayAnn apparently had little contact with A.W., and he lived with the Morrises during much of his life from infancy until the fall of 2008, when Butch and Elizabeth got married and A.W. began kindergarten.
On December 5, 2008, the Morrises filed a motion for change of custody under the file number used for the paternity/custody case from "2005. On April 13, 2009, the Morrises filed an amended motion for change of custody and, in the alternative, for grandparent visitation pursuant to Ark. Code Ann. § 9-13-103. At some point during the summer of 2009, RayAnn terminated her parental rights to A.W., and on August 13, 2009, A.W. was adopted by Elizabeth Walehli. On January 5, 2010, Butch filed a motion to dismiss the Mor-rises’ motion for custody/visitation, contending that they had no standing to assert grandparent-visitation rights under Ark.Code Ann. § 9-13-103 in light of the adoption and that no other Arkansas statute authorized visitation under the circumstances. The Morrises responded that, in spite of the adoption, A.W. was illegitimate and thus they did have standing under Ark.Code Ann. § 9-13-103.
|3On May 26, 2010, the circuit court held a hearing and denied Butch’s motion to dismiss. As the adoptive mother of A.W., Elizabeth Walehli was added as a party, and the case then proceeded to a bench trial on the Morrises’ motion. On June 30, 2010, the court entered a final order granting the Morrises one overnight weekend visitation per month.
On May 28, 2010, at 11:34 a.m., the court entered an order awarding fees to the attorney ad litem in the amount of $2,895 and requiring the Walchlis to pay half and the Morrises to pay half. Later that day, at 3:12 p.m., a petition for attorney’s fees was filed by the attorney ad litem. The Walchlis filed a response to the petition for fees, objecting to the fees based on the high hourly rate, an allegedly overstated amount of time, and the economic hardship it would place on them. After realizing that the court had already granted the ad litem’s motion, the Walchlis filed a motion to reconsider and set aside the award. The court denied the Walchlis’ motion to reconsider on June 30, 2010. This appeal followed.
I. Arkansas Code Annotated Section 9-13-103
Appellants’ first point on appeal is that their motion to dismiss should have been granted as a matter of law because the Morrises had no standing to proceed under Ark.Code Ann. § 9-13-103. We give no deference to a circuit court’s eon- elusions of law and therefore review this issue of statutory construction de novo on appeal. Pack v. Clark, 2010 Ark. App. 756, 379 S.W.3d 676.
A grandparent’s right to petition for visitation with his or her grandchild, while not available at common law, was created by statute in Arkansas. Linder v. Linder, 348 Ark. 322, 348, 72 S.W.3d 841, 855 (2002). It is limited to those grandparents who meet the statutory requirements set forth in ■ Ark.Code Ann. § 9 — 13—103(b) (Repl.2009), which provides as follows:
(b) A grandparent or great-grandparent may petition a circuit court of this state for reasonable visitation rights with respect to his or her grandchild or grandchildren or great-grandchild or great-grandchildren under this section if:
(1) The marital relationship between the parents of the child has been severed by death, divorce, or legal separation;
(2) The child is illegitimate and the petitioner is a maternal grandparent of the illegitimate child; or
(3) The child is illegitimate, the petitioner is a paternal grandparent of the illegitimate child, and paternity has been established by a court of competent jurisdiction.
The parties agree that the Morrises’ right under this statute, if they have one, derives from section 103(b)(3). Tanni Morris is a paternal grandparent and paternity has been established. The issue is whether A.W. is illegitimate.
The Morrises contend, and the circuit court agreed, that A.W. was illegitimate because he is the illegitimate son of Ray-Ann Williams and Butch Walchli. They argue that illegitimate means “born out of wedlock”; Elizabeth’s adopting him does not change the fact that A.W. was “born out of wedlock.” Citing Ark.Code Ann. § 28-9-209, they contend that the only way an illegitimate child will become legitimate is by the subsequent marriage of the natural mother to the putative father, who recognizes the child as his own. In other words, following the Morrises’ argument to its logical conclusion, A.W. will remain illegitimate forever — in spite of the fact that his legal parents are married and the fact that RayAnn has no legal relationship whatsoever with A.W. — or until Butch marries RayAnn. 15We disagree with the Morrises that A.W. is illegitimate, and we hold that the court erred as a matter of law in so finding.
A.W. is the son of Elizabeth and Butch Walchli, who are married. If Elizabeth were A.W.’s natural mother, there is no question — and no argument from the Mor-rises — that A.W. would be legitimate. We hold that the fact that Elizabeth is A.W.’s mother Through adoption, rather than through natural birth, makes no legal difference for purposes of Ark.Code Ann. § 9-13-103. A.W. is not illegitimate.
The effect of the adoption on the relationship between RayAnn and A.W. was to make A.W. “a stranger” to RayAnn “for all purposes.” Ark.Code Ann. § 9-9-215(a)(l) (Repl.2009). “This includes inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the individual by name or by some designation not based on a parent and child or blood relationship.” Id. The effect of the adoption on the relationship between Elizabeth and A.W. was to “create the relationship of parent and child” between Elizabeth and A.W., as if A.W. were her legitimate blood descendant, “for all purposes including inheritance and applicability of statutes, documents, and instruments, whether executed before or after the adoption is decreed, which do not expressly exclude an adopted individual from their operation or effect.” Ark.Code Ann. § 9-9-215(a)(2). It would require a tortured interpretation of this statute for us to hold that A.W., the legal son of two married parents, is illegitimate because his legal mother obtained that status through |fiadoption rather than by birth. The statute specifically states that adoption creates the relationship of parent and child “for all purposes ... including ... applicability of statutes.”
The Morrises’ sole reliance upon Ark.Code Ann. § 28-9-209 is misplaced. This statute is in the Probate Code and deals with the rights of a child born out of wedlock to inherit from his mother and father. We do not find that it limits our understanding of the word “illegitimate” in interpreting the language set forth in Ark. Code Ann. § 9-13-103. A.W.’s legal parents are married. He is therefore not illegitimate. Because A.W. is not “illegitimate” for purposes of Ark.Code Ann. § 9-13 — 103(b), Tanni Morris had no standing to assert grandparent-visitation rights under that statute, and the circuit court should have dismissed her petition.
II. In Loco Parentis
We also reject the Morrises’ contention that, because they stood in loco parentis to A.W. at times during his life, they were entitled to visitation. While the circuit court noted in its long comments from the bench that, “we have the grandmother who was very involved in the child’s life, the grandmother and grandfather ..., who were standing in loco paren-tis many times,” the court’s order contained no finding that the Morrises stood in loco parentis. Moreover, the court never specifically stated either orally or in writing that visitation was appropriate because the grandparents stood in loco par-entis to A.W. Indeed, the above-quoted remark by the court was followed by its statement that the grandparents |7thus “built a relationship that qualifies under the statute” — that is, the grandparent-visitation statute.
Further, Ms. Morris is A.W.’s grandmother, not a co-parent. The most recent cases affirming an award of visitation on the basis of a petitioner’s standing in loco parentis to a child are Robinson v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140 (2005), and Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731. In Robinson, the trial court awarded visitation to the child’s stepmother in a divorce proceeding. The child’s biological mother relinquished her rights when the child was eight months old, and the stepmother was the only mother the child had ever known. The stepmother had acted as a co-parent with the child’s father for seven years, from the time the child was eighteen months old.
Similarly, in Bethany, the supreme court affirmed a trial court’s order finding that Jones stood in loco parentis to the child and awarding visitation. In Bethany, Jones and her same-sex partner Bethany made the decision to start a family together. Bethany became pregnant through artificial insemination. After the child’s birth in 2005, Jones stayed home with the child as the primary caregiver, and Bethany returned to work. The child referred to Jones as “Mommy” and to Bethany as “Mama.” The parties agreed to continue to co-parent the child after they ended their romantic relationship in 2008. A disagreement over parenting led to the lawsuit. In affirming the trial court’s findings, the supreme court noted that its holding was “grounded in the specific facts of this case.” Id. at 14, 378 S.W.3d at 739. The court rejected Bethany’s argument that its holding would open a floodgate allowing anyone |sto seek visitation with a minor child and cited a Kentucky case for the following statement: “After reciting these pertinent facts, the Kentucky court concluded that the case was distinguishable from the situation where there is a grandparent, a babysitter, or a boyfriend or girlfriend of the parent, who watched the child for the parent, but who was never intended by the parent to be doing so in the capacity of another parent.” Id. at 13, 378 S.W.3d at 739.
These cases are distinguishable. In both Bethany and Robinson, the petitioner’s relationship to the child was as a primary caregiving parent. In both cases, the child had only one custodial, biological parent along with the petitioning, nonbio-logical co-parent. The petitioner in both cases stood in the place of a parent to the child. In this case, Ms. Morris is A.W.’s grandparent. A.W. lives with both of his parents. Although she has been a very actively involved grandparent and has helped Butch by watching A.W. and taking care of him while Butch worked, there was no evidence that Butch intended for Ms. Morris to do so in the capacity of another parent. Butch has always had legal custody over A.W.; Ms. Morris has never had any legal rights whatsoever. The supreme court has made it clear that “at common law, grandparents have no presumptive right to custody ... of their grandchildren and no right of visitation, absent an order of the circuit court.” Henry v. Buchanan, 364 Ark. 485, 490, 221 S.W.3d 346, 349 (2006) (citing Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981)). The court stated further that “any rights existing in grandparents must be derived from statutes.” Id.; see also Troxel v. Granville, 530 U.S. 57, 70, 120 S.Ct. 2054, 147 L.Ed.2d 49 |;,(2000) (stating that “the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance”). In this case, any right the Mor-rises had to visitation was through Ark. Code Ann. § 9-13-103(b). Therefore, we reverse the circuit court’s order and remand for the court to dismiss the Mor-rises’ motion.
III. Fees for Attorney Ad Litem
The Walehlis also contend that the circuit court abused its discretion in awarding excessive fees to the attorney ad litem and in assessing half of those fees against them. A circuit judge may appoint an attorney ad litem when he determines that it will be helpful in a case in which custody is an issue. Ark.Code Ann. § 9-13-101(e)(2) (Repl.2009). The attorney ad litem’s fees “shall be paid from funds appropriated for that purpose to the Administrative Office of the Courts.” Ark.Code Ann. § 9 — 13—101(e)(4). The Administrative Office has established guidelines providing a maximum amount of expenses and fees per hour that will be paid. Ark.Code Ann. § 9 — 13—101 (e)(6). The circuit court may require the parties to pay all or a portion of the fees “depending on the ability of the parties to pay.” Ark.Code Ann. § 9-13-101(e)(5)(B).
In this case, the court did not transmit an order to the Administrative Office of the Courts for payment of the fees. It required the parties to pay all of the fees submitted by the attorney ad litem. From the record, it appears that the court made no determination that the fees complied with the Administrative Office’s guidelines. The court also failed to hold a hearing or make a specific determination regarding the ability of the parties to pay. In light 110of our decision holding that the Morrises had no standing to pursue this case, we hold that it was an abuse of discretion to assess the attorney ad litem’s fees against the Walehlis and reverse that part of the court’s order.
Reversed and remanded.
PITTMAN and ROBBINS, JJ., agree.
. The Morrises eventually filed a motion to intervene in the case in April 2009, which the court granted on July 6, 2009. | [
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DOUG MARTIN, Judge.
| Appellant Hope School District (the District) appeals a decision of the Workers’ Compensation Commission awarding permanent partial disability benefits and a 2% wage-loss benefit to appellee Charles Wilson. Wilson cross-appeals the Commission’s denial of his request for additional temporary total disability benefits and his request for more than a 2% wage-loss benefit. We find no error and affirm.
Wilson worked as a custodian for the District and suffered an admittedly com-pensable injury to his left shoulder on August 17, 2007. The District paid temporary total disability benefits through November 30, 2007. Wilson returned to work on February 19, 2008, and was given a revised schedule of work duties to accommodate his injury. On April 30, 2008, Wilson’s supervisor, Maurice Henry, asked Wilson if he planned to return to work for the ^District the following school year. In response, Wilson signed a “letter of intention” indicating that he did not want to be employed as a custodian for the District during the 2008-2009 school year. Wilson’s employment with the District ended in August 2008.
Wilson’s shoulder injury was treated by Dr. Young, an orthopedic physician. In addition, Dr. Holladay examined Wilson in April 2009 and assigned him an 11% upper extremity impairment that was converted into “a 7% whole-person impairment as residual from the work-related injury.”
Wilson subsequently sought additional temporary total disability benefits for work missed from December 1, 2007, to February 19, 2008. In addition, he sought permanent partial disability benefits associated with the 7% permanent impairment rating he was assigned, wage-loss disability benefits, and additional medical treatment.
After a hearing on December 3, 2009, the administrative law judge (ALJ) entered an opinion on February 25, 2010, denying Wilson’s request for additional temporary total disability benefits; finding Wilson entitled to permanent partial disability benefits and awarding him benefits for a 7% anatomical impairment rating to the body as a whole; finding that Wilson’s claim for wage-loss benefits was not barred by Arkansas Code Annotated section ll-9-522(b); and finding that Wilson’s request for additional medical treatment was reasonable. The District appealed the ALJ’s findings, and the Commission adopted and affirmed the AL J’s decision in an opinion and order entered August 13, 2010. The District filed a timely notice of appeal, and Wilson filed a timely notice of cross-appeal.
| ^Standard of Review
Typically, on appeal to this court, we review only the decision of the Commission, not that of the ALJ. Daniels v. Affiliated Foods Sw., 70 Ark.App. 319, 17 S.W.3d 817 (2000). In this case, the Commission affirmed and adopted the ALJ’s opinion as its own, which it is permitted to do under Arkansas law. See Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark.App. 338, 107 S.W.3d 876 (2003). Moreover, in so doing, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. See Branum, supra. Therefore, for purposes of our review, we consider both the ALJ’s order and the Commission’s majority order.
In appeals involving claims for workers’ compensation, our court views the evidence in the light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. Galloway v. Tyson Foods, Inc., 2010 Ark. App. 610, at 5, 378 S.W.3d 210, 213-14. Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Galloway, 2010 Ark. App. 610, at 5, 378 S.W.3d at 213-14. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm. Id. Where the Commission denies a claim because of the claimant’s failure to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Id.
14Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission, and when there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Neal v. Sparks Reg’l Med. Ctr., 104 Ark.App. 97, 102, 289 S.W.3d 163, 167 (2008). The Commission is not required to believe the testimony of the claimant or any other witnesses but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id.
Direct Appeal
In its first argument on direct appeal, the District argues that the Commission erred in finding that Arkansas Code Annotated sections ll-9-522(b) and 11-9-526 did not bar Wilson’s wage-loss claim. Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. Ark.Code Ann. § ll-9-102(4)(F)(ii)(a) (Supp.2009). In order to receive wage-loss-disability benefits in excess of one’s permanent physical impairment, a claimant first must prove by a preponderance of the evidence that he sustained permanent physical impairment as a result of a com-pensable injury. Bio-Tech Pharmacal, Inc. v. Blouin, 2010 Ark. App. 714, 379 S.W.3d 594; Taggart v. Mid Am. Packaging, 2009 Ark. App. 335, at 4, 308 S.W.3d 643, 646. The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability | fito earn a livelihood. Taggart, 2009 Ark. App. 335, at 5, 308 S.W.3d at 647. In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity. .Ark.Code Ann. § ll-9-522(b)(l) (Repl.2002).
Section ll-9-522(b)(2) goes bn, however, to provide that
so long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his or her average weekly wage at the time of the accident, he or she shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.
The employer bears the burden of proving the employee’s receipt of a bona fide offer to be employed. Ark.Code Ann. § 11 — 9— 522(c)(1).
The District argues that the Commission erred in finding that Wilson did not have a “bona fide and reasonably obtainable offer to be employed” by the District. As mentioned above, Wilson informed the District at the end of April 2008 that he did not want to be employed by the District for the 2008-2009 school year. In addition, the District offered the testimony of Maurice Henry, the District’s Co-Safety and Health/Custodial Supervisor, and Kathryn Montgomery, the District’s Co-Safety and Health/Workers’ Compensation Coordinator. When asked whether, had Wilson not resigned in 2008, he could still be | ^working for the District, Henry answered, “He would have been recommended.” (Emphasis added.) Similarly, when asked whether the District was going to let Wilson continue working in the fall semester of 2008 if he had not retired, Montgomery stated, “He would have been recommended like the rest of the staff.” (Emphasis added.)
On the basis of this testimony, the ALJ and the Commission made the following findings:
The evidence establishes that the claimant was employed on an annual school-year basis. The claimant stopped working in August of 2008 when his 2007-2008 contract ended. In Belcher v. Holiday Inn, 43 Ark.App. 157, 868 S.W.2d 87 (1993), the Court explained that “ll-9-522(b) precludes a claim for wage loss benefits as a matter of law only during such time as the claimant has returned to work, obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than her average weekly wage at the time of the accident.” Consequently, I find that the claimant’s employment at Hope School District was no longer a bar to benefits for wage loss once that employment ended at the end of the 2007-2008 contract in August of 2008.
I also find that the preponderance of the evidence establishes that the claimant did not receive a bona fide offer of employment for any period after he last worked in August of 2008. To the contrary, both Mr. Henry and Ms. Montgomery indicated that had the claimant requested employment for the new school year beginning in August of 2008, he would have been recommended for employment. Clearly, a possible recommendation for employment is not the same as an offer of employment. The statutory bar requires an actual offer of employment. Cross v. Crawford County Memorial Hosp., 54 Ark.App. 180, 923 S.W.2d 886 (1996). No such actual offer was made in this case.
(Emphasis in original.)
This court has noted that there must be an actual offer of employment made by the employer to the employee. Cross v. Crawford County Mem’l Hosp., 54 Ark.App. 130, 135, 923 S.W.2d 886, 889 (1996) (citing Weyerhaeuser Co. v. McGinnis, 37 Ark.App. 91, 824 S.W.2d 406 (1992)). It is the employer’s burden to prove that an actual, bona fide offer was made. Id. (citing Ark.Code Ann. § 11 — 9—522(c)(1)). In Cross, supra, the claimant’s supervisor testified that if the claimant was capable of performing the work, if a job was available, and if the claimant could work eight hours a day, there might be a position for her with the company. Cross, 54 Ark.App. at 135, 923 S.W.2d at 889. This court stated that the evidence showed that any type of job available to the claimant was “speculative and based on future circumstances.” Id. In the present ease, Wilson’s employers stated that he would be “recommended” for a job; there was thus no definitive statement that he would be accepted for employment.
The District points to Wilson’s testimony wherein he stated that he was asked to come back to work (“My principal [Larry Muldrew] asked me to come back, see could I come back”) as evidence that Wilson had a bona fide offer of employment. The District also notes Wilson’s testimony on cross-examination that Mul-drew called Wilson to ask him to come back to work for the 2009 school year. Thus, the District contends that Wilson had a bona fide and reasonably obtainable offer of employment, which Wilson refused. When | sthere are contradictions in the evidence, however, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Flowers v. Ark. State Police, 2010 Ark. App. 99, 377 S.W.3d 339. The issue is not whether this court might have reached a different result from the Commission; the Commission’s decision will not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Mize v. Resource Power, Inc., 99 Ark.App. 415, 416, 261 S.W.3d 477, 478 (2007). The ALJ and the Commission resolved this question in Wilson’s favor, and we do not disturb such resolution here.
Finally, the District argues that Wilson’s voluntary resignation constituted an unjustifiable refusal of suitable employment that should have barred his claim for wage-loss benefits. Citing Arkansas Code Annotated section 11-9-526, the District argues that Wilson “should not be able to create a wage-loss claim by walking away from the work his employer provided and could have continued to provide.” Having determined that Wilson was never given a bona fide offer of employment, however, the question of whether any such offer was justifiably or unjustifiably refused is moot.
In its second point on direct appeal, the District asserts that the Commission’s award of additional medical treatment was not supported by substan tial evidence. Arkansas Code Annotated section ll-9-508(a) (Supp.2009) requires employers to provide medical services that are “reasonably necessary in connection with the injury received by the employee.” The employee has the burden of proving by a preponderance of the evidence that medical | treatment is reasonable and necessary. Richardson Waste, Inc. v. Corcoran, 2010 Ark. App. 816, 379 S.W.3d 77; Owens Planting Co. v. Graham, 102 Ark. App. 299, 284 S.W.3d 537 (2008). What constitutes reasonably necessary treatment under the statute is a question of fact for the Commission. Richardson Waste, supra. Arkansas law is well settled that a claimant may be entitled to ongoing medical treatment after the healing period has ended, if the medical treatment is geared toward management of the claimant’s injury. Patchell v. Wal-Mart Stores, Inc., 86 Ark.App. 230, 184 S.W.3d 31 (2004) (citing Artex Hydrophonics, Inc. v. Pippin, 8 Ark.App. 200, 649 S.W.2d 845 (1983)).
Wilson testified at the hearing that he had ongoing pain in his shoulder and had still, as of that date, not regained full use of the shoulder and could not lift his left arm above his head. Wilson stated that his instructions from his treating physician, Dr. Young, were to return to the doctor if the shoulder continued to bother him. The last report from Dr. Young, dated July 10, 2009, notes that Wilson continued to have some “intermittent discomfort.” Dr. Young stated that, if the shoulder interfered with Wilson’s comfort, activities, or livelihood, “the thing to do would ... be more aggressive with possible surgical intervention,” so he would see Wilson back for follow-up visits.
On the basis of this evidence, the ALJ found that “the record simply does not support the [District’s] contention that additional medical treatment was not necessary after July 10, 2008.” The ALJ thus found that Wilson had established that “continued follow-up with Dr. | inYoung through the date of the hearing and continuing on to a date yet to be determined is reasonably necessary for treatment of [Wilson’s] compensable shoulder injury.”
On appeal, the District argues that the ALJ and the Commission erred in awarding additional medical benefits because the evidence demonstrated that Wilson had “not yet” reached a point where he needed to return to the doctor. According to the District, this rendered the award of additional medical benefits speculative and tantamount to an “advisory opinion about what might be necessary in the future.” The District maintains that the lack of medical evidence beyond Dr. Young’s July 10, 2009 report caused the Commission’s decision to be erroneous.
The District, however, fails to cite any cases in support of its claim that the award of medical benefits was speculative. Arkansas law is well settled that we will not consider the merits of an argument when an appellant fails to cite any convincing legal authority in support of that argument, and it is otherwise not apparent without further research that the argument is well taken. Smith-Blair, Inc. v. Jones, 77 Ark.App. 273, 72 S.W.3d 560 (2002); Matthews v. Jefferson Hosp. Assoc., 341 Ark. 5, 14 S.W.3d 482 (2000).
|nMoreover, the Commission’s decision was based on Dr. Young’s statement that he felt it appropriate to see Wilson in the future if Wilson continued to have pain that interfered with his daily activities. See Patchell, 86 Ark.App. 230, 184 S.W.3d 31 (holding that claimant is entitled to ongoing medical treatment if such is geared toward management of the claimant’s injury). Accordingly, we affirm on this issue as well.
Cross-Appeal
In his first argument on cross-appeal, Wilson argues that the Commission’s refusal to award him temporary total disability for the period between December 1, 2007, and February 19, 2008, was not supported by substantial evidence. Temporary total disability for unscheduled injuries is that period within the healing period in which a claimant suffers a total incapacity to earn wages. Smallwood v. Ark. Dep’t of Human Servs., 2010 Ark. App. 466, 375 S.W.3d 747; Poulan Weed Eater v. Marshall, 79 Ark.App. 129, 84 S.W.3d 878 (2002). The healing period is that period for healing of an accidental injury that continues until an employee is as far restored as the permanent character of his injury will permit, and the healing period ends when the underlying condition causing the disability has become stable and nothing in the way of treatment will improve the condition. Smallwood, supra. The determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Id.; Poulan, supra.
|12As mentioned, the issue is whether Wilson was entitled to additional temporary total disability benefits for the period between December 1, 2007, and February 19, 2008. Dr. Young authored an office note on November 12, 2007, that stated “[l]ight duty is fine. Protected activities with the affected left shoulder.” In addition, on November 30, 2007, Dr. Young signed a return-to-work form that imposed restrictions on Wilson of no lifting over twenty-five pounds and no overhead lifting. The line that said “May return to work on _,” however, was left blank, and the box next to that line was unchecked. Also on November 30, 2007, the District’s Claims Specialist Melody Tipton sent a letter to Wilson and to the District that contained the following:
Dear Mr. Wilson,
I have been notified that Dr. Young has released you to return back to work Monday 12/3/07 with restrictions of no lifting over 251bs and no overhead lifting. You may return to full duty gradually within 3 weeks.
I have spoken with your supervisor Maurice Henry and the school is able to accommodate those restrictions. This letter is to place you on notice to report to work on 12/3/07.
If you have any questions please call me....
Wilson testified at the hearing about what happened after he received the letter from Tipton:
Q: Now, Ms. Tipton, in this letter, says that she’s been notified that Dr. Young has released you to return back to work Monday, December 3rd, with restrictions of no lifting over twenty-five pounds and no overhead lifting, and you may return to full duty gradually within three weeks. Had Dr. Young’s office notified you about that?
113A: No.
Q: As you sit here today, have you ever seen a note that says that he’s going to release you as of December 3rd and have you gradually go back to full duty in three weeks?
A: No.
Q: Now, we have a note here, November 30, 2007, that doesn’t have a return to work date on it. In fact, it’s left blank. Did that come with the letter?
A: No.
Q: So, when you got this letter in certified mail from Ms. Tipton, what did you do?
A: Called my supervisor.
Q: As you can best recount it for us, tell us what occurred in that telephone conversation.
A: I got the letter, I called Mr. Henry, and he said he had a letter, too. I said this says I have to go back to work. Mr. Henry said, how can you go back to work? Man, you’re all messed up.
Q: Did Mr. Henry say that he had a release to return to work from the doctor?
A: No, he did not.
Q: But he had the letter from the insurance company just like you did?
A: Right.
Q: Had anybody from the doctor’s office called to let you know there’d been a change?
A: No.
|14Q: So, at that point, the only information that you had that there had been a change was just what you got in the mail?
A: From Ms. Tipton.
Q: But she didn’t have anything from the doctor’s office in the letter?
A: No. She just sent me that.
Q: So what did Mr. Henry tell you on the phone about what he knew about the letter.
A: He asked me — When I called him, I said, I have a letter from workers’ compensation for me to go back to work, and he said, I got one, too.
Q: Was there any discussion with him about whether he had any documentation about you being released to return to work?
A: No. We just talked about the letter.
Q: Okay. So what did he tell you as far as you coming back to work at that time?
A: Well, we didn’t discuss that.
Q: When you called him, why did you call him?
A: I got a letter and asked him what was it all about.
Q: Okay. Well, did he tell you that he wanted you to come back to work at that time?
A: No.
Q: Did he instruct you that you were supposed to return back to work or—
A: No.
Q: —that he needed to meet with you about setting you up to go back to work or anything?
_Jj¿A: No.
Q: Since you hadn’t heard from the doctor’s office about it, did you know anything about it?
A: No.
Wilson further testified that the first discussion he had with Dr. Young about returning to work was in February 2008, at which time Dr. Young gave him a note releasing him to return to work. That note, dated February 11, 2008, contained the notation that Wilson “[m]ay return to work on 2-12-08” with the same restrictions of no lifting over twenty-five pounds and no overhead lifting. After receiving the note from Dr. Young, Wilson testified that he spoke to Henry and Montgomery, and they agreed to accommodate him at work with those restrictions, memorializing the agreement in a letter and a revised work schedule, both dated February 14, 2008. Because Wilson had a doctor’s appointment on February 12, 2008, however, everyone agreed that he could return to work on February 19, 2008.
Maurice Henry testified that he received a phone call from Melody Tipton in which she stated that Dr. Young’s office had released Wilson to return to work under certain restrictions. After receiving the letter from Tipton stating as much, Henry received a phone call from Wilson, who said that he had not been released by the doctor. Although Henry advised Wilson that the District would accommodate him and that he could return to work on December 3, 2007, Wilson said he was going to see Dr. Young because he had not been | ^released to return to work. Wilson did not get back in touch with Henry to say whether he ever contacted Dr. Young, and he did not return to work until February 2008.
On the basis of this evidence, the ALJ, and subsequently the Commission, found that Wilson’s account of events was not credible. The ALJ noted that Dr. Young’s records contained a document dated November 12, 2007, indicating that Wilson could perform light-duty work and a November 30, 2007 document specifically listing the restrictions of no overhead lifting and no lifting over twenty-five pounds. The ALJ also found it significant that Wilson did not telephone Henry prior to December 3, 2007, and did not call Tipton about the release. Finally, the ALJ pointed out that Wilson did not produce any documentation to prove that Dr. Young took him back off work after generating a document indicating that Wilson could perform light-duty work as of November 12, 2007. Under those circumstances, the ALJ found that the District offered Wilson employment beginning on December 3, 2007, which was suitable to his capacity, and that Wilson’s refusal to return to the offered employment on December 3, 2007, was not justified. Accordingly, the ALJ found that the period of additional temporary disability compensation at issue was barred by Arkansas Code Annotated section 11-9-526.
On cross-appeal, Wilson argues that the ALJ and the Commission erroneously based their decisions that he had been cleared to go back to work on the letter from Melody Tipton, a claims adjuster, rather than on a doctor’s note releasing him to return to work. Wilson argues that the November 30, 2007 document does not literally state that he was |17released to return to work and that he did not receive any documentation that specifically contained a release until the February 12, 2008 note. Therefore, Wilson argues, any refusal to return to work in December 2007 was not unreasonable, and the denial of temporary total disability was erroneous.
In addition to proving that one is totally incapacitated, a claimant must also prove that he remains in the healing period in order to be awarded temporary total disability benefits, and the determination of when the healing period ends is a factual determination to be made by the Commission. Nix v. Wilson World, Hotel, 46 Ark.App. 303, 879 S.W.2d 457 (1994). The Commission also has the duty of weighing the medical evidence as it does any other evidence, and resolving any conflict is a question of fact for the Commission. Id. When reviewing findings of fact made by the Commission, we must affirm if the Commission’s decision is supported by substantial evidence. Woodall v. Hunnicutt Constr., 340 Ark. 377, 12 S.W.3d 630 (2000). When, as here, the Commission denies coverage because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
We do not agree with Wilson that the Commission’s decision fails to display a substantial basis for the denial of relief. Although Wilson claimed that he believed he had not been cleared to return to work until February 2008, the Commission simply did not believe |1shim. Because the determination of the credibility and weight to be given to a witness’s testimony is solely for the Commission, Wilson’s argument on this point is without merit. See Steak House v. Weigel, 101 Ark.App. 81, 270 S.W.3d 365 (2007); Williams v. Brown’s Sheet Metal/CNA Ins. Co., 81 Ark.App. 459, 462, 105 S.W.3d 382, 384 (2003).
Wilson’s second argument on cross-appeal concerns the Commission’s finding that he sustained only a 2% impairment to his wage-earning capacity in excess of the 7% permanent anatomical impairment established by the medical evidence. Pursuant to Arkansas Code Annotated section ll-9-522(b)(l) (Supp.2009), when a claimant has been assigned an anatomical-impairment rating to the body as a whole, the Commission has the authority to increase the disability rating, and it can find a claimant permanently and totally disabled based upon the wage-loss factor. Lee v. Alcoa Extrusion, Inc., 89 Ark.App. 228, 233, 201 S.W.3d 449, 454 (2005). The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Id., 201 S.W.3d at 454. The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant’s age, education, work experience, and other matters reasonably expected to affect his future earning capacity. Id. at 233, 201 S.W.3d at 454; Ark.Code Ann. § 11 — 9— 522(b)(1). In considering factors that may affect an employee’s future earning capacity, we consider the claimant’s motivation to return to work, because a lack of interest or a negative attitude impedes our assessment of the claimant’s loss of earning capacity. Lee, 89 Ark.App. at 233, 201 S.W.3d at 454.
|19In reaching the determination that Wilson suffered a 2% wage loss, the ALJ acknowledged that Wilson “worked with some degree of pain in his left shoulder” from February to August 2008. The ALJ credited Henry’s testimony, however, that Wilson did not complain about his shoulder to Henry while at work during that period. In addition, the ALJ noted that Dr. Young stated that, as of June 30, 2008, Wilson was “doing reasonably well,” could engage in “activities as tolerated,” and had symptoms that were “reasonably well controlled.” The ALJ also commented that Wilson was a sixty-nine-year-old high-school graduate who had worked in custodial jobs for the last forty-five years. Pri- or to his injury,' Wilson had planned to work for the District for two more years and had contemplated retiring when he reached the age of seventy. Thus, the ALJ concluded that, “[a]fter considering [Wilson’s] advanced age, his limited education and work experience, the nature and extent of his injury and impairment, his post-injury earning, and all other relevant factors, I find that [Wilson] sustained a 2% impairment to his wage-earning capacity.” The ALJ noted, however, that Wilson’s decision in May 2008 to not seek a new contract for the 2008-2009 school year impeded his ability to assess the extent of his wage-loss disability after he last worked in August 2008.
Wilson argues on cross-appeal that this decision was “contrary to precedent,” citing Taggart v. Mid Am. Packaging, 2009 Ark.App. 335, 308 S.W.3d 643. In Tag-gart, the claimant (Taggart) was a fifty-seven-year-old woman who had been working in various positions for her employer since 1977. In 2003, Taggart was working as a senior boiler operator and |20earning around $67,000 per year. In December of that year, she sustained a work-related injury that left her incapable of performing the job duties of that position. Tag-gart was terminated in August 2005 because she had been on medical leave for over a year, and the company did not have a job available for her within her physical limitations. After her termination, Tag-gart began studying for an associate’s degree with the intent to take a job as a social worker, at which she could expect to make between $28,000 and $35,000 a year. Id. at 3, 308 S.W.3d at 645. The ALJ awarded Taggart a 20% wage loss, and on appeal, she claimed that the award should have been higher. Id. at 4, 308 S.W.3d at 646.
This court agreed, noting that the claimant was making more than $67,000 a year prior to the accident, and the most she could expect to make as a social worker was $35,000 per year. Thus, the court determined that the ALJ failed to properly consider her pre-injury earnings when determining her wage-loss disability and erred in concluding that her wage-loss disability was no more than 20%. Id. at 5-6, 308 S.W.3d at 647.
In the instant ease, Wilson argues on cross-appeal that, prior to his injury, he was earning $431 per week, and now
he could at best find a job, perhaps as a ticket taker or a cashier at a convenience store, paying minimum wage, if he would find one at all. Minimum wage would pay close to $300 per week, resulting in an income reduction of approximately $141 per week, or roughly thirty percent.
Thus, under Taggart, Wilson claims that he should have been awarded at least 30% wage-loss disability benefits.
|g1At the hearing, however, Wilson did not introduce any testimony or other evidence that he had ever sought or intended to seek any other minimum-wage employment; indeed, he testified that it had been his intention to retire at age seventy in any event. As noted above, when the Commission denies coverage because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Woodall v. Hunnicutt Constr., 340 Ark. 377, 12 S.W.3d 630 (2000). As Wilson failed to put forth any proof that he was entitled to any greater amount of wage-loss disability, we affirm the Commission’s decision.
Affirmed on direct appeal; affirmed on cross-appeal.
GLADWIN, J., agrees.
VAUGHT, C.J., concurs.
. Although the District addresses these arguments under three separate subpoint headings, the arguments are so intertwined that they are addressed together herein.
. The District argues that Wilson’s voluntary decision not to return for the 2008-2009 school year bars his claim for wage-loss benefits under the "clear language” in section 11-9 — 522(b). This section, however, makes no mention of an employee’s decision not to return to work; rather, the "clear language” addresses only situations in which the employee has returned to work, has obtained other employment, or has a bona fide offer to be employed.
. Principal Muldrew was not called to testify at the hearing before the ALJ.
. The District cites Ark.Code Ann. § 11 — 9— 704(c), which provides that ALJs and the Commission shall determine whether a party has met its burden of proof by examining the record as a whole, and Ark.Code Ann. § 11-9-705(c)(l)(A), which provides that all oral or documentary evidence shall be presented at the initial hearing on a controverted claim. These citations, however, offer no support to the District's argument that the Commission’s award of additional medical benefits was somehow speculative. The District also cites several cases in its reply brief regarding the propriety of issuing advisory opinions. However, the District did not raise the issue of ripeness and advisory opinions in its arguments before the AU, and it is well settled that arguments cannot be raised for the first time in one's reply brief. See Maddox v. City of Fort Smith, 346 Ark. 209, 56 S.W.3d 375 (2001). | [
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CLIFF HOOFMAN, Judge.
11 This is the second time that this case has been before this court. The dispute is between a landlord and a bank, Liberty Bank of Arkansas (the successor to Peoples Bank of Paragould), over the proceeds of crops planted by a debtor farmer. The farmer, Don Mathis, operated several farming corporations and rented land from appellants Ben Williams and the Ben Williams, Jr., Family Partnership (referred to collectively as “Williams”) in Clay County in 2001 and 2002. Because Mathis could not pay Williams all of the rent that he owed for 2001, they signed a handwritten agreement on December 18, 2001, providing that Mathis would assign the 2002 crop as payment for money he owed Williams. On April 17, 2002, Williams filed a financing statement in Clay County to perfect his landlord’s lien. The bank loaned Mathis production money and filed financing statements to perfect its security interests in crops grown by his farming corporations on April 15 and June 5, 2002. On ^September 19, 2002, Williams and Mathis entered into another lease agreement, in which Mathis agreed to pay rent on or before December 30, 2002, and Williams terminated the financing statement covering his security interest in Mathis’s crops. Williams later contended that he released his lien because a bank loan officer, Jeff Shelton, had asked Mathis to ask Williams to do so and had promised that the bank would cover Mathis’s rent payments to Williams due in December; Shelton, however, denied making any such promise, and the bank refused to honor Mathis’s rent checks. In our opinion in Williams v. Peoples Bank of Paragould, CA06-25, slip op. at 2-4, 2006 WL 3690738 (Ark.App. Nov. 29, 2006) (unpublished), we set forth the factual and procedural history of the ensuing dispute:
Appellant harvested the wheat in June 2003 and delivered it to appellee Consolidated Grain and Barge Company (CGB). Before CGB paid for the wheat, it learned of the bank’s claim to the proceeds of the 2003 wheat crop and did not pay appellant the crop proceeds.
The bank filed this suit on July 7, 2003, against Mathis’s farms for payment of the amounts due on fourteen promissory notes, asserting that it had a security interest in Mathis’s crops and in the proceeds of the sale of the crops. The bank amended its complaint to add CGB, appellant, and others involved in the 2003 wheat harvest as defendants. On November 17, 2003, appellant filed a counterclaim against the bank and two of its officers and a cross-complaint against CGB. Appellant alleged that Mathis had not paid rent on his farms for one-half of 2001 or for all of 2002; that CGB had breached its contract with him; that the bank had intentionally interfered with his contract with CGB; that CGB and the bank had conspired to avoid paying him for the crops, resulting in the conversion of his property; and that the bank and CGB had committed abuse of process in obtaining an ex parte temporary restraining order preventing CGB from paying appellant. In response, the bank raised several affirmative defenses, including the statute of limitations. CGB responded that appellant had failed to state a claim for relief.
The bank filed a motion to dismiss on December 2, 2003. On March 22, 2004, CGB moved for summary judgment. Appellant amended his counterclaim on April 1¾29, 2004, adding a claim for fraud. The bank raised several affirmative defenses, renewed its motion to dismiss, and moved for partial summary judgment against the Mathis farming corporations. There was a hearing on July 1, 2004, at which the circuit judge asked the parties to brief the issue of lien priority in the crop proceeds and to address whether the description of the collateral on the security agreements and financing statements signed by Mathis were sufficient. Appellant argued that Mathis had no power to transfer rights in the 2003 crop, because the lease had ended on December 31, 2002, when the rent was not paid.
The circuit court granted CGB summary judgment on appellant’s conspiracy and abuse-of-process eláims on August 9, 2004. On September 16, 2004, the court granted partial summary judgment to the bank on appellant’s claims for tortious interference with contract, conversion, conspiracy, and abuse of process and denied summary judgment as to his fraud claim. The court further granted judgment to the bank on the loans to Mathis’s farming corporations.
The court entered a second order for partial summary judgment on November 1, 2004. The court stated that the parties had settled their dispute as to $8,566.18 of the proceeds totaling $37,267.09 from the June 2003 sale of wheat to CGB. The circuit court held that the bank had a valid perfected security interest in the wheat crop sold to CGB in June 2003; that the bank’s security interest was properly described, and that it attached to the wheat when it was planted; that the bank’s security interest was superior to the lien asserted by appellant; and that the bank was entitled to the remaining $28,700.91 from CGB. The court gave appellant thirty days within- which to file an amended counterclaim. Appellant filed an amended counterclaim on November 29, 2004, alleging that Mathis was a holdover tenant, paying no rent, until June 2003. He requested unlawful detainer and quantum meruit damages. The bank renewed its motion for summary judgment on appellant’s fraud claim on January 7, 2005.
On March 10, 2005, the circuit court certified all prior orders granting summary judgment under Ark. R. Civ. P. 54(b), leaving appellant’s breach-of-contract, fraud, and quantum meruit claims to be addressed later. Appellant filed a notice of appeal from that order. On March 29, 2005, the court granted summary judgment to CGB on appellant’s conversion claim.
On appeal, we .reversed the entry of summary judgment because questions of fact remained unanswered regarding the adequacy of the description of the collateral pledged by Mathis, and consequently, whether the bank’s security interest attached or was perfected.
14After our decision reversing the summary judgment,' the case went to trial. Over Williams’s' objection, the circuit court permitted the bank to introduce into evidence a plat of real property in Clay County (which revealed Williams’s extensive real property holdings) and evidence of his longstanding, close business relationship with Mathis. Williams, Shelton, Mathis, and Richard Maxwell (with Consolidated Grain and Barge Company (CGB)), testified. The trial court directed verdicts in favor of the bank on Williams’s claims for the 2001 crop rent, obtaining a signature by deception, tortious interference with contractual relations, conspiracy, abuse of process, intrusion, forfeiture, and conversion. The trial court sent Williams’s fraud claim (for $172,935.81 in unpaid rent checks) and the issue of whether the bank had a perfected security interest in the crop proceeds to the jury. It refused to give Williams’s proffered instruction about the bank’s security interest in the crop proceeds because that instruction erroneously stated that a financing statement must contain a description of the real property on which the crops were grown. The jury (1) found that the bank had a perfected security interest in the 2003 crop proceeds; (2) awarded the $28,700.91 in 2003 crop proceeds held in the registry of the court to Williams; and (3) found that the bank had not committed fraud. The court denied Williams’s motions for judgment notwithstanding the verdict and new trial because of alleged juror misconduct. Williams then pursued this appeal.
|BI. Fraud
Williams first argues that the jury’s finding that the bank did not commit fraud is not supported by substantial evidence. He acknowledges that the evidence on this issue was conflicting but argues that no reasonable person could believe that he would release his lien without a concomitant promise that he would receive what was due to him. Where the sufficiency of the evidence to support a jury verdict is the issue on appeal, the standard of review is whether the verdict is supported by substantial evidence. Mitchell v. Fells, 2010 Ark. App. 663, 376 S.W.3d 543. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. The elements of fraud are (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; and (5) damage suffered as a result of the reliance. Wochos v. Woolverton, 2010 Ark. App. 802, 378 S.W.3d 280. The question is one of fact when the evidence as to fraud is in conflict. Id.
Williams did not allege that Shelton promised him that the bank would honor Mathis’s rent checks but instead based his claim upon Mathis’s statements that Shelton asked Mathis to secure Williams’s release of the financing statement in exchange for that promise. Shelton, however, testified that he never discussed Williams’s lien with Mathis and that he did not speak with Mathis about the rent due to Williams until December 30, 2002 (three months |fiafter Williams had released the hen). The jury obviously believed Shelton’s version of events, which was substantial evidence to support the verdict. A jury has the right to believe or disbelieve all or any part of the testimony at trial, even when the testimony is uncon-tradicted, and is in a superior position to judge the credibility of the witnesses. Sealing Devices, Inc. v. McKinney, 2009 Ark. App. 412, 321 S.W.3d 270. We therefore affirm on this point.
II. Validity of the Bank’s Security Interest Based on the Sufficiency of the Collateral Description
Williams also argues that the trial court erred in denying his motion for directed verdict on the question of whether the bank had a valid, perfected security interest in the crops and their proceeds and that the jury’s finding that the description of the collateral was sufficient was not supported by substantial evidence. Williams contends that the financing statements provided no possible way to determine which lands Mathis was farming that might be covered by the security agreement. He asserts that the. descriptions were vague, did not contain a description of the land, and did not provide a third party with any means of identifying which tracts of land owned by him were subject to the bank’s liens. Williams also argues that the trial court erred in refusing to give his proffered jury instruction about the description of the collateral in the financing statements.
The bank responds that Williams’s argument is moot because he was made whole when the jury awarded him the proceeds from the sale of the 2003 wheat crop, $28,700.91, which, it asserts, was the full measure of damages he could have received if the jury had found the bank had no lien. The bank states that Williams never alleged that he was entitled to any 17damages other than this amount in crop proceeds based on the lien-priority issue, and he has, therefore, received all damages that he claimed on that issue. We agree that these issues are moot for two reasons. First, Williams has received the proceeds of the 2003 wheat crop. Second, even if he had claimed the 2002 proceeds on a lien-priority basis, his termination of his financing statement left him with no perfected security interest in the 2002 crops. See Pruitt v. Dickerson Excavation, Inc., 2010 Ark. App. 849, 379 S.W.3d 766. To the extent that Williams might have had a landlord’s lien (without regard to the UCC) on the 2002 crops, it had expired by the time he filed his counterclaim in November 2003. See Ark.Code Ann. § 18-41-101 (1987).
III. Juror Misconduct
Williams further argues that the trial court erred in refusing to grant him a new trial because of juror misconduct. Arkansas Rule of Civil Procedure 59(a) (2010) provides that a court may grant a new trial for any of several enumerated grounds materially affecting the substantial rights of a party, including: (1) any irregularity in the proceedings by which the party was prevented from having a fair trial and (2) misconduct of the jury. A party moving for a new trial under Rule 59(a)(2) must demonstrate that his rights have been materially affected by the misconduct by showing that a reasonable possibility of prejudice has resulted from the juror misconduct. Campbell v. Hankins, 2009 Ark. App. 479, 324 S.W.3d 358. While prejudice is not presumed, neither is there a requirement that the moving party show actual | ^prejudice. Id. Once a juror has contaminated the jury’s deliberations with extrinsic evidence, a new trial will be warranted if there is a reasonable possibility of resulting prejudice. Id. To require the losing party to prove actual prejudice would place an impossible burden upon him. Id. The trial court’s discretion to grant a new trial under Rule 59 is necessarily broad and will not be overturned on appeal in the absence of an abuse of discretion. Payne v. Donaldson, 2010 Ark. App. 255, 379 S.W.3d 22. Given the standard of review, the trial court’s determination to grant or deny a motion for new trial is almost never overturned on appeal. Campbell v. Hankins, supra.
Arkansas Rule of Evidence 606(b) (2010) precludes inquiry into “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon [the juror’s] or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict[.]” That rule states that a juror “may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” The purpose of the rule is to balance the freedom of secret jury deliberations with the ability to correct an irregularity in those deliberations. D.B. & J. Holden Farms Ltd. P’ship v. Arkansas State Highway Comm’n, 93 Ark.App. 202, 218 S.W.3d 355 (2005).
Williams relied on the affidavit of juror Mark Locke in asserting that the jurors had engaged in misconduct by bringing extraneous information about Mathis’s financial history into deliberations. Locke stated:
19I’am [sic] Mark Locke, I sat on the jury at Corning Arkansas court house the week ending 10-9-09.
In regards to Ben Williams and Don Mathis, excuse my spelling or typing. But as I sat in the jury room with 12 jurors, making a decision, Kaleb McMas-ters and Scott Cato and Darlene Thomson had comments to make about things not evolved [sic] with the case.
McMaster stated while at work at Clay County Electric, had got on the commuter and looked up things pertaining to Don Mathis from his account at the coop and felt that Don Mathis did not deserve the money he was seeking, then Darlene Thomson stated while she worked at 1st National bank had looked at Don Mathis account, and said this is what happens to people with money, then Scott Cato stated he had a race car and the Mathis had a race car, but how the Mathis car was all fixed up and his was not, stating how they did not deserve the money either. I stayed closed mouth and thought I should report this to the proper person, which I have now.
This is what I was told to do, I have felt that I have done the correct thing. I’am [sic] just being honest!
The bank responded by filing the affidavits of jurors Velma Thompson and Scott Cato. Thompson stated that, although she had retired from First National Bank five years previously and had knowledge that Mathis had written bad checks, she had not mentioned this to other jurors; she did not recall other jurors making the statements about Mathis; and she was relieved when the court read the jury instruction about not having to set aside her common knowledge. Cato said that he did not recall any discussion of independent information during deliberations and that he did not recall any juror stating that he or she had looked up information about witnesses during the trial. Even if we found that such extraneous information was im-permissibly considered, in light of the extensive evidence of Mathis’s bankruptcy and debt problems that was introduced at trial, Williams did not demonstrate that a reasonable possibility of prejudice to him had resulted from such extraneous information and | mpersonal opinions. The trial court did not, therefore, abuse its discretion in denying the motion for new trial.
IV. Tortious Inteiference with Contractual Relations and Conversion
Williams argues that the trial court erred in granting the bank’s motion for directed verdict on his claims for tor-tious interference with contractual relations and conversion of all of the crop proceeds, including the 2002 payments received by the bank. Williams pled to the trial court that the bank had converted the 2003 wheat crop proceeds and had interfered with his contract with CGB. On appeal, he argues something different: that the bank interfered with his contract with Mathis and that it converted the rent money that Mathis owed him. It is a basic rule of appellate procedure that a party cannot change arguments on appeal, and we do not address arguments that were not raised below. Taylor v. Producers Rice Mill, Inc., 89 Ark.App. 327, 330, 202 S.W.3d 565, 567 (2005).
V. Evidence of Alleged Debt
Williams also argues that the trial court erred in granting the bank’s motion in limine before trial to exclude evidence of the debt from the 2001 crop year that Mathis owed him. He states that the December 2001 agreement into which he and Mathis had entered granted him a lien in the 2002 crop as security for the crop rent still due from the 2001 season; that it was an acknowledgment that the 2001 farm lease had ended; that the subsequent agreement reached in 2002 did not cancel the crop rental still due for 2001; and that the amount of money owed to him for 2001 crop rentals was an account stated and not subject to dispute. |n Williams further argues that the trial court’s ruling that the bank’s transactions with Mathis before 2002 and after 2003 were relevant was inconsistent with its ruling that the transactions between him and Mathis during these years were not relevant. As a result, Williams states, the jury was not provided with a full picture of what had transpired.
We will not reverse the trial court’s decision to admit or refuse evidence in the absence of an abuse of that discretion and a showing of prejudice. Graftenreed v. Seabaugh, 100 Ark.App. 364, 268 S.W.3d 905 (2007). Arkansas Rule of Evidence 401 (2010) defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
The December 2001 handwritten document did not specifically refer to a 2002 deficiency, but referred to a “deficiency payment on the 2002 crop.” In any event, Williams did not file this document, so any lien that it might have given him was not perfected. When Williams validly terminated his financing statement in September 2002, his security interest in the 2002 crops terminated. We also note that his September 2002 farm lease with Mathis had a merger clause covering prior agreements, and that any 2001 landlord’s lien of Williams’s would have expired by June 30, 2002. See Ark.Code Ann. § 18-41-101. The December 2001 document, as well as Williams’s transactions with Mathis before 2002 and after 2003, were, therefore, no longer relevant to the issues sent to the jury. We affirm on this point.
|12VI. Admission of Clay County Plat Book
Williams contends that the trial court erred in admitting into evidence a 1997 Clay County Plat Book, prepared from tax and other public records, containing plats, by section, township, and range, over his objection that it was inadmissible hearsay. Williams states that the book, which was sponsored by the Clay County Conservation District, was not a governmental publication admissible as an exception to the hearsay rule under Arkansas Rule of Evidence 803(8) (2010), but was simply a commercial publication sold to the general public by Miller Management Services, Inc. The bank, however, relied on Rule 803(17), which provides that “published compilations, generally used and relied upon by the public or by persons in particular occupations” are exceptions to the hearsay rule. Shelton testified that he regularly relied on this book in his work as a loan officer. We hold that the book was admissible under this rule and that the trial court did not abuse its discretion in admitting it.
VII. Evidence of Williams’s Wealth
In his last point, Williams argues that the trial court erred in permitting the bank to introduce evidence of his wealth because it was not relevant and, if it was relevant, its probative value was outweighed by the danger of unfair prejudice. He states that the only possible purpose for admitting this evidence was to cause the jurors to believe that he was a “rich old man seeking more money from the bank.” Even though evidence may be relevant pursuant to Rule 401, it may be excludable under Arkansas Rule of Evidence 403 (2010), which provides, “Although relevant, evidence may be excluded if its probative value is | ^substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The trial court has discretion in determining the relevance of evidence and in gauging its probative value against unfair prejudice, and its decision will not be reversed absent a manifest abuse of that discretion. Graftenreed, supra. The mere fact that evidence is prejudicial to a party does not make it inadmissible; it is only excludable if the danger of unfair prejudice substantially outweighs its probative value. Id. The prejudice referred to in Rule 403 denotes the effect of the evidence upon the jury, not the party opposed to it. Id.
The bank did not introduce evidence of Williams’s wealth — it offered evidence of
his financial transactions with Mathis, which was relevant and not unfairly prejudicial to Williams. Additionally, Williams’s business relationship with Mathis was relevant to their credibility, especially as to Williams’s fraud claim. Williams purchased Mathis’s farmland for over $2 million in Mathis’s bankruptcy proceeding, leased it back to Mathis, and then sold it for a large profit, which Williams gave as an explanation for why he had not pursued this money from Mathis. The trial court did not abuse its discretion in admitting this evidence.
Affirmed.
GLOVER and ABRAMSON, JJ., agree.
. The circuit court directed verdicts in favor of CGB, from which Williams has not appealed.
. Ark.Code Ann. § 18-41-101 provides for a six-month crop lien in favor of a landlord for rent. | [
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McCulloch, C. J.
Appellees, a partnership composed of F. D. Bates and B. J. Chamblin, instituted this action against appellant, a foreign corporation, to recover an amount alleged to be due for the price of certain building material (tiling) sold and delivered under written contract. The total account for the purchase of the tile was $2,050.75, according to prices stated in the contract, subject to a credit for freight paid by appellant, which, the contract provided, was to be refunded, leaving a balance of $1,718.98 claimed to be due by ap-pellees.
Appellant admitted in its answer that the account for the price of the tiling was correct, and pleaded a credit of $562.92 for freight paid, leaving a balance of $1,487.83. It also pleaded a counterclaim for certain items as follows: $165.75, tiling shipped to'another destination and paid for; $387.92, additional cost of using brick instead of tile during the period of delay ih delivery of tile under the contract; $300 for the price of tiling left over on account of having to use brick during the period of delay in deliveries; and the sum of $508, cost of maintaining construction crews during the period of delay. The credits claimed left a balance of $126.16 due appellees, which appellant conceded and offered to pay.
On the final hearing the court rendered a decree in favor of appellees for the amount of the account after crediting the freight claimed in appellant’s cross-complaint, $562.92, and the item of $165.75 for tiling shipped to Little Rock, the decree being for a balance of $1,322.08.
Appellant has'its principal office at St. Louis, and is engaged in building construction. It took a contract to construct a large building in Stuttgart, Arkansas, to be used as a bank and hotel. The plans called for the use of tiling, and appellees, being engaged in the business of selling such material, entered into a contract with appellant to furnish the specified amount of the material for use in tbe building at Stuttgart. There was a written contract between the parties, entered into on November 12, 1919, which specified the terms and the quantity (approximately) of the material, and also contained a provision that said material was “to be shipped about February 20 to E. A. Steininger Construction Company at Stuttgart, Arkansas.” The contract specified the material to be furnished thereunder as follows:
“Quantity Approximately Description Price-
8,800 8x12 interlocking tile, including specials, $ 125.00
15,000 to
17,000 6x12 interlocking tile,
more or less including specials, 125.00
“The 6-inch interlocking to take a reduction in price, provided we can get it made in Arkansas in time for the job.”
There was also a provision that the prices were to be “f. o. b. seller’s plant, freight allowed to destination,” and that the purchaser should pay the freight at destination and take credit for the amount. Another clause in the contract which, it is ■ claimed, is material to the present controversy, reads as follows:
“All promises of delivery are as closely estimated as possible, but seller does not guarantee deliveries, the same being contingent upon strikes, fires, accidents, acts of Providence, and general conditions beyond seller’s reasonable control, and seller shall not be subject to any damages or penalties for delays caused thereby.7’
The account filed with the complaint shows the dates of shipment. The first shipment under the contract was July 9, 1920, ,of 5,000 standard interlocking tiling, and 2,750 standard interlocking tiling’ on the same date; the next shipment was October 11, .2,800 6x12x12 hollow building tile, and the last shipment was on November 8, 1920, 4,000 6-inch interlocking tiling. According to the testimony in the case, the shipment of July 9 did not reach destination until late in August, and the shipment of October 11 did not reach destination until some date in November. The testimony does not show the date of the arrival of the last shipment 'at destination.
Appellant introduced testimony to show that, on account of the delay in shipment, it became necessary to use brick instead of tiling, and that there was an additional expense incrvu d of $387.92 on that account, and that, during the period of delay, the construction crews were held in waiting at an expense of $508, and that when the building was completed there was left over tiling of the value, at cost price, of $300, for which there was no use.
We are of the opinion that appellant established its claim of damages by a preponderance of the evidence, and that it is entitled to recoup thesé damages, if there was a breach of the contract which caused unnecessary delay in delivery of the material.
It is undisputed that there was a suspension of the work at Stuttgart on account of the owners of the building holding up construction for lack of money to make payments, but there is evidence in the record that there was delay caused by the failure of appellees to make shipment of tiling in time. In other words, the proof shows that the work was held up by the failure of ap-pellees to make delivery, and that appellant sustained damages on that account. The other items in the counterclaim, or cross-complaint, are supported by a preponderance of the testimony. The question therefore which remains for decision is whether or not appellees broke the contract with respect to the time of delivery.
The contract specified that deliveries were to bo made about February 20, which was two. months after the date of the contract. According to the undisputed evidence, there was not a single shipment of tiling until July 9, and the shipment did not reach destination until some time in August. It is true that the tiling was not actually needed hy appellant in construction until midsummer, and there was no complaint about the delay until the time approached for the tiling to he put into the building. There is a letter in the record, addressed to appellees on June 7, in relation to shipment, and which contains a notice to appellees that brick-laying would begin within sis weeks or two months after that date, and that material should be on the ground within that time: The first shipment contained only eight-inch tiling, and; according to the evidence, it was necessary to have the six-inch interlocking tiling to he used first. When the first shipment arrived, appellant notified appellees that it could not use the other tiling until the six-inch tiling was received. There was considerable correspondence between the parties from time to time, and appellant was continually insisting upon a shipment of the six-inch tiling. During this correspondence appellees suggested to appellant that 6x12x12 hollow tiling be substituted for the six-inch interlocking tiling at a different price, and, on October 8, appellant wired to appellees its willingness to accept one car -of the hollow tiling as a substitute. In accordance with this agreement a carload of six-inch hollow tiling was shipped on October 11, reaching destination some time in November.
It is obvious from the testimony that there was an unreasonable delay in the shipment of material. Ap-pellees reserved in the contract a period of sixty days within which to deliver the material, but there was no shipment until nearly six months after the stipulated time, and then it was a shipment of eight-inch tiling, which could not be used until after the six-inch tiling had been used. It is true there was no express notice, either in the contract or in the correspondence between the parties, until after the shipment of the eight-inch tiling, that the six-inch tiling would have to be used first, but the contract itself required shipment of all of the material, not merely a part of it, within the time specified. Besides that, appellees were expressly notified, as soon as the eight-inch tiling was received, that it could not be used until after the six-inch tiling had been received and used. There is no satisfactory explanation of the delay after that time.
Appellees offer justification for the delay under the clause of the contract exempting them from damages on account of delays caused by “ strikes, fires, accidents, and acts of Providence, and general conditions beyond seller’s reasonable control.” The testimony does not support appellees’ contention that the unreasonable delay resulted from any such causes. All that is fairly inferable from the testimony is that it was not reasonably convenient for appellees to get the tiling ready for shipment at an earlier date. ■ The language does not justify the interpretation that appellees should be allowed to await their own convenience to furnish the material. The words £‘general conditions beyond seller’s reasonable control” refer to the class of obstacles described in the preceding language, such as strikes, fires, accidents, and acts of Providence. If the contract is to be construed in accordance with the contention of ap-pellees, they were not bound to ship the material unless they could procure it for that purpose, and then it was lacking in mutuality, and was not binding on either party, for that would be, in effect, making the delivery of the material optional with the seller. Weil v. Chicago Pneumatic Tool Co., 138 Ark. 534.
The acceptance of the material on final delivery was not a waiver of the delay. Appellant could have declined acceptance and recovered damages for any differences in the cost of the material. It also had the right to accept the material at the contract price and sue for the delay in delivery.
Our conclusion therefore is that the chancery court erred in not allowing the credits claimed by appellant, so the decree is reversed, and a decree will he entered here reducing the amount of appellees’ ¡recovery to $126.16, the amount tendered by' appellant. | [
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Smith, J.
Appellants were tried on an agreed' statement of facts and convicted of carrying concealed weapons. The substance of the agreed statement of facts is as follows: Each of the defendants carried a pistol as a weapon in the railroad yards belonging to the Missouri Pacific Railroad Comnany, in the city of North Little Rock. They were each then and there engaged in the performance of their duties as special guard in the service of the railroad company for which they had been employed.
The railroad company is a corporation authorized to do business in Arkansas, and was then and there, through its officers and agents, in possession of the premises in question. Said premises consisted of a large parcel of land on which the railroad company was then maintaining vards, consisting of railroad tracks, machine shops, coal houses, storage houses, water tanks, tool houses and other buildings and structures in large numbers, for use as railroad terminals for the cities of Little Rock and North Little Rock, for the purpose of carrying on its business as a common carrier.
It was further agreed that prior to July 1, 1922, said railroad company employed several hundred mechanics, carpenters, machinists and skilled laborers of various kinds, who worked on said premises in the construction and repair of cars, locomotives and other structures belonging to the said railroad company, to keep and maintain the property of said railroad company for the purpose of carrying out its duties as a common carrier. On July 1, 1922, practically all of said workmen quit their work and went out on a strike, in compliance with the orders of the governing bodies of the several unions or crafts of which said workmen were members, and that said strike was in full force from that date until and after the said July 5, 3922. In the progress of said strike said strikers and their sympathizers picketed the said premises of said railroad company, and congregated in large numbers near all regular points of • ingress or egress to said premises, and undertook to persuade and prevent any persons from working in their places as mechanics and craftsmen, as aforesaid, and thus to interfere with the conduct by said company of its business as a common carrier. There were threats of violence against those who undertook to remain in the service' of said railroad company, or to enter said service to take the place of the strikers, and there were acts of violence against such persons.
“The said railroad company undertook to hire other persons to take the place of said strikers, and did hire and have such persons, and put them to work on the premises aforesaid. The officers and managers of said railroad company considered it necessary to station special guards upon said premises for the purpose of protecting the property located on said premises and the persons engaged in the work formerly done by the strikers on said premises, from depredation and injury by the unlawful acts of other persons. For that purpose said railroad company had employed as its servants and agents the defendants, had stationed them on said property, and held them responsible for safeguarding the said, property to the extent of their ability to guard and protect it. They were engaged in the performance • of their duties as such special guards when they carried the pistols as weapons as hereinbefore stated.
“The pistols carried by the defendants were not such pistols as are used in the army or navy of the United States.”
By § 2904, C. & M. Digest, it is made unlawful for any purpose to carry a pistol as a weapon, but there is a proviso that “nothing in this act shall be so construed as to prohibit any person from carrying any weapon when upon a journey or upon his premises.”
It is the insistence of counsel for the appellants that, under the facts recited above, appellants are entitled to the benefit of the exception permitting one to carry a weapon upon his premises. But the majority of the judges do not think so.
No one of these guards had the exclusive possession of the premises, or any part of them, nor did the guards, all together, have the exclusive possession of the premises, or any part of them. The premises were primarily and principally used and occupied by the employees of the company who were engaged in the performance of the labor for which the various buildings of the company were intended.
In 8 R. C. L. p. 293, it is said: “An exception in a statute which permits a person to carry a weapon on his own premises will not be a defense to a prosecution of a servant who at the time is on his master’s premises.”
In 2 McClain on Criminal Law, § 1035, it is said: “Some statutes permit one to carry a concealed weapon on his own premises. .A laborer on the land of another is not within such exception; nor is one upon his own premises when, in fact, he has leased the ■premises to- another without reservation of authoT-ity to enter thereon. The common stairway or halls of a building, occupied by offices of different persons, are not within the description of one’s ‘own property’. So one engaged in supervising the erection of a building for another is not on his own premises. Under a statute not making such an exception, it is no defense that the Aveapon was carried within the curtilage of defendant’s abode. ’ ’
In Kinkead v. State, 45 Ark. 536, the defendant was a contractor engaged in the erection of a certain building for another person, and he was arrested in the building while in the supervision of the work, and a pistol was found, on his person. It was insisted that he came within the exception of the statute alloAving one to carry weapons upon his own premises; but the court said: “The exception only protects such as have an estate or interest in the real property which constitutes the premises. Obviously a builder, having merely a lien for his work and materials, has no such interest.”
The language quoted was somewhat qualified in the case of Clark v. State, 49 Ark. 174, where’the court said that doubtless a tenant in possession of leased premises has such an interest in the premises as to be entitled to the benefit of the exception.
In the opinion of the majority, appellants had no interest or estate in the premises as tenants or otherwise. They were there as employees only. There was no part of the premises the possession of which they did not share with other guards and employees, and they were not, therefore, upon their premises Avithin the meaning of the proviso contained in the statute.
It is true the appellants were upon the premises to exclude certain other persons from the premises, and this is a right which the railroad company had, as the owner of the premises; but, in the opinion of the majority, the exercise of this right did not oner ate to bring them Avithin the exception contained in the statute. It is unlawful to carry weapons, and only those persons may do so who come Avithin the excepted class, and as, in the opinion of the majority, the appellants were not on their own premises, the court below properly adjudged them guilty, and that judgment is affirmed.
Mr. Justice Hart and the writer are of opinion that appellants are within the exception contained in the statute. | [
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Wood, J.
This action was instituted by the appellant against the appellee. The appellant alleged that he is the owner of a certain tract of land, which he described in his complaint; that he acquired title thereto as follows: “Cain, sheriff, to J. E. Massengale, trustee deed, dated September 4, 1908, and recorded in Deed Record Book 3, p. 117.” He alleged that he is a-nonresident of the State, and that Harry M. Woods of Augusta, Arkansas, was his agent, with instructions to pay the taxes on the land, but that he failed to pay same for the year 1914, and the same was returned delinquent for that year; that appellee, Brown, purchased the land at a tax' sale'by the collector of Prairie County on the 10th day of June, 1915, ’ for the taxes of 1914, and on the 25th day of June,' 1917, received a clerk’s deed therefor and had the sainé duly recorded in the records of the Northern District Of Prairie County. He set up that the tax sale was void for the reason that the land was not sold at competitive 'bidding, as required by §'8739 of Kirby & Castle’s Digest;' that' the bidding at the sale was stifled by agreement of the bidders not to bid against each other, but to bid the lands in as a whole, each bidder taking his turn as the land numbers were called, and also because there' was ■ no legal levy of school, county or road taxes in School District No. 10 for the year 1914, and because the clerk erred in charging only the penalty of ten per cent., when the penalty of twenty-five per cent, is required by law. The appellant tendered, in his complaint, the taxes and expenses incurred by the appellee for tax deed, and alleged that the appellee’s deed was a cloud on his title, and prayed- that the deed be canceled.
The appellee answered, and denied the allegations of the complaint. The appellant filed an affidavit that he had tendered the taxes to the appellee. To sustain his complaint, the appellant deraigned title through one W. R. Cain, acting sheriff of Woodruff County, substituted trustee in a deed of trust, by which the land in controversy was conveyed, under a special power - and according to the terms specified in the deed of trust, from the American Sawmill Company, a corporation, to the Massengale Lumber Company.
Testimony was adduced bearing upon the other issues raised in the complaint and answer, but the conclusion we have reached makes it unnecessary to set it forth. The court rendered a decree dismissing thé complaint for want of equity, from which is this appeal.
- Section 10110, Crawford & Moses’ Digest, among other-things, provides as follows: “But no person shall be permitted to question the title acquired by a deed of the clerk of the county court without first showing that he, or the person under whom he claims title to the property, had title thereto at the time of the sale, o.r that title was obtained from the United States or this' State after the sale, and that all taxes due upon the' property have been paid by such person, or the person under whom he claims title as aforesaid.”
The testimony in this record, as abstracted by'the-appellant, does not prove that the American Sawmill Company had any title to the land conveyed by the deed of trust to the Massengale Lumber Company. The allegations of thé complaint show that this, action is an at tack upon the tax deed executed to the appellee by the clerk under the provisions of § 10108 of Crawford & Moses’ Digest, and which was prima facie evidence of title in him. Sec. 10109, C. & M. Digest; Sawyer v. Wilson, 81 Ark. 319; Gammon v. Moore, 83 Ark. 196; Alexander v. Capps, 100 Ark. 488; Newman v. Lybrand, 130 Ark. 424.
It was essential to the maintenance of the appellant’s action that he prove that he or those under whom he holds had title at the time of the sale, or that title was obtained from the United States or this State after the sale. Osceola Milling Co. v. Chicago Lumber Co., 84 Ark. 1. See also Rhea v. McWilliams, 73 Ark. 557. This the appellant did not do. Therefore the decree is in all things correct, and it is affirmed. | [
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Wood, J.
This is an appeal from a judgment sentencing the appellant to imprisonment in the State Penitentiary for a period of one year, on an indictment the charging part of which it as .follows: “In the county aforesaid, on the 12th day of October, 1922, the said Polk Bullard did unlawfully and feloniously keep in his possession a still, without registering the same with the proper United States officer, against the peace and dig-nit}7' of the State of Arkansas.”-
The appellant moved for a continuance on account . of the absence of two witnesses, Addie Smith and Ray Hambrick. The motion was in proper form, and sets up that the indictment was returned against the appellant on February 6, 1923; that J. C. Brookfield was employed as his attorney; that by agreement with the prosecuting attorney on that day the cause was continued until the following Monday to enable appellant’s attorney, who was a member of the Legislature, to return to his duties at Little Rock; that the attorney returned to court on the day of trial, and found that no witnesses for the defendant had been summoned; that the attorney thereupon caused subpoenas to be issued for Smith and Hambrick, who were within the juris-' diction of the court, and that the defendant was put to trial without said witnesses and without sufficient time being granted to the sheriff to summon said witnesses. The motion then set forth the facts which the defendant expected to prove by the witnesses, which were material.
The court overruled the motion, and did not err in so doing, because the appellant fails to show that he had exercised proper diligence to obtain the absent witnesses. Neither the appellant nor his attorney asked that subpoenas be issued for the witnesses before the day of the trial. This he could and should have done. Sheptine v. State, 333 Ark. 230-239; Jackson v. State, 94 Ark. 169.
The appellant contends that the evidence is not sufficient to sustain the verdict. The officers who searched the premises of appellant’s mother, where appellant resided, stated that they searched the barn and .found a copper still in the corn-crib, covered up with shucks. There was what they called a worm with it, and the outfit that sits on a stove — that.is, a cooker. It looked like it had been used. In talking to the appellant about it he said he found it over in a creek somewhere near his place. He stated that he brought it home and intended to .cut it up and put the copper around his stovepipe, that he was building or remodeling. The officers looked around and found another one in the weeds in the corner of the yard, twenty or thirty feet from the house. That was of the milk-can variety — looked like a five-gallon milk-can. There was a worm there. They also found a quart fruit jar of whiskey fifteen feet from this second still. Appellant stated that he found both stills in the creek. They also found a barrel of mash— two gallons in a keg in tire garden near the house — about a thirty-gallon keg. This keg was concealed partly down in the ground, and had a sack, or weeds or something, thrown over it.
This testimony was sufficient to warrant the verdict of the jury. The jury might have found, from this testimony, that the-appellant had in his possession a still in vioiation of the statute. Act 324 of the Acts of 1921, p. 372, sec. 2; Ammons v. State, 12 L. R. 343; Hodgkiss v. State, 12 L. R. 308.
The appellant requested the following prayer for instruction: “The facts alone that the defendant resided with his mother and that a still was found on her premises are not sufficient to warrant conviction in this case, and, unless you find some other fact or circumstance to connect this defendant with the possession or operation of the still or stills, as alleged, your verdict will be for the defendant.”
This instruction singled out a particular phase of the evidence and instructed the jury as to the weight to be given it. The court did not err in refusing this prayer for instruction. “Circuit judges should avoid telling the jury what importance to attach to the evidence or to the absence of it. It is for the jury, and not the court, to determine its importance or its weight.” Pope v. State, 45 Ark. 165; Whitley v. State, 114 Ark. 243.
It could serve no useful purpose to set out the instructions given by the trial court. Suffice it to say the issues of fact were submitted to the jury under instructions that conform to previous decisions of this court, and were correct declarations of law. If the appellant had prayed for a proper instruction telling the jury that they could not convict the appellant unless they found beyond a reasonable doubt, from the evidence, that the appellant had in' his possession a still, he would have been entitled to such instruction. But he did not present such prayer for instruction. We find no reversible error in the record, and the judgment is therefore affirmed. | [
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Humphreys, J.
Appellee instituted suit against appellant in the circuit court of Perry County to recover $240 for failing to collect a check for that .amount drawn on the Bigelow State Bank and deposited with appellant on December 14, .1920. ' The suit was based upon the alleged negligence and carelessness of appellant in not collecting the cheek before the Bigelow Bank failed. It was alleged that the Bigelow. State Bank did not become insolvent until December 22, 1920, and that, had appellant been diligent, it would have collected the check before it failed.
Appellant filed an answer denying the material allegations of the complaint.
The cause was submitted to the jury upon the pleadings, testimony, and instructions of the court, which resulted in a judgment against appellant for the amount claimed, from which is this appeal.
The cause was sent to the jury upon the sole issue of whether or not appellant used due diligence in attempting to collect the check, to which objection was made upon the ground that the instructions submitting the issue excluded the responsibility assumed by appellant in accepting the check for collection. Appellant proved by its cashier that it received the check subject to payment by the bank upon which it was drawn, and assumed no responsibility. The court admitted the proof with reference to the custom of the bank in receiving checks subject to payment by the drawee, and the manner in which presented to the drawee through corresponding banks, but excluded the evidence tending to show what responsi bility, if any, the baiik assumed. .Several instructions were asked by appellant and refused by the court, embracing' the idea that the bank assumed no responsibility in accepting the check for collection. The court excluded the evidence relating to the assumed responsibility of appellant bank, and refused to give instructions embracing the idea that it assumed no responsibility, upon the theory that, while the bank might prove the custom and usage of itself and other hanks in the collection of checks, the law fixes its responsibility in making the collections. The law requires a bank to use due diligence in collecting checks deposited with it for collection. What due diligence is depends on the particular circumstances in each case. At the conclusion of the testimony appellant asked for a peremptory instruction on the ground that the undisputed facts showed that it had used due diligence in attempting to collect the check. It is contended that the court committed reversible error in refusing to instruct a verdict in its favor. The facts are undisputed, and are as follows: On the 14th day of December, 1920, appellee drew a check for $240 on the Bigelow State Bunk, and at the time had on deposit in said bank sufficient funds with which to meet it. On said date he deposited the check with appellant, Perry State Bank, for collection, and received a certificate of deposit for same. On the same afternoon appellant mailed the check to the American Bank of Commerce & Trust Company of Little Bock, Arkansas, its corresponding bank, for collection. It was received by the corresponding bank on the 16th, and on the same day forwarded to the drawee, the Bigelow State Bank, the latter hank being the only hank in Bigelow. In due course of mail the check should have been received by the Bigelow Bank not later than the 17th during banking hours. The record is silent as to why the check was not received by the corresponding bank in Little Bock on the 15th instead. of the 16th of the month. The Perry State Bank is located in the town of Perry, only a short distance from Little Bock, and in the same count}'- -with Bigelow, the two towns being only fifteen or twenty miles apart. The Bigelow State Bank did not acknowledge the receipt of the check and pay same, and the corresponding bank did not demand the prompt return of the check. On December 21 the corresponding bank sent a tracer after the check. On December 22 the Bigelow State Bank became insolvent and was taken over by the Bank Commissioner of Arkansas. The Bigelow State Bank paid all checks presented to it over the counter until taken in charge by said Commissioner, and all checks which were mailed to it, until two or three days before it failed. The deputy bank commissioner found the check in question in the Bigelow Bank when he took over its assets, and returned it to the American Bank of Commerce & Trust Company on December 23. That bank charged it back to the account of appellant bank and returned the check to the latter. Appellant bank charged it back to the account of appellee on December 24, and returned the check to him. Five days elapsed between the time the corresponding bank mailed the check to the drawee and the time it sent the tracer after the check. The record is silent as to why no inquiry was made concerning the nonpayment of the check. The jury might have concluded that it was negligence on the part of the corresponding bank not to inquire concerning the check when it failed to receive a response by return mail from the Bigelow State Bank. The negligence of the corresponding bank was necessarily the negligence of the sending bank. It had selected the corresponding bank as its agent for the collection of the check. The unexplained silence of four or five days was a matter for the jury to consider in determining whether the corresponding bank used due diligence in attempting to collect the check. The corresponding bank not only owed the drawer the duty of presenting the check for payment within a reasonable time, but also the duty of pressing payment upon the drawee until payment was refused, and to promptly notify the sending bank, and through, it the drawer, of the refusal to pay on the part of the drawee. The failure to do these things was a matter to he considered by the jury in determining whether due diligence had been used in attempting to collect the check. It cannot be said, as a matter of law, that the failure to collect the check was not due to appellant’s negligence. This was the only issue arising out of the pleadings and evidence, and the court submitted that issue to the jury under correct instructions.
No error appearing, the judgment is affirmed. | [
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McCulloch, C. J.
This is an action to recover damages sustained by appellant’s intestate, E. C. Choate, by the breaking of a belt at appellee’s cotton gin, which, it is alleged, was caused by negligence of appellee’s employees in failing to properly lace or brad together the ends of the belt. It is alleged in the complaint that Choate was a visitor at the gin on business in which ap-pellee was interested, and at the invitation of the manager of appellee’s business.
The answer contained a denial of the allegations of negligence with respect to the lacing or bradding together of the gin belt, and also denied that Choate was on the premises at the invitation of appellee’s manager, and alleged that Choate was there voluntarily and merely as a licensee.
Choate died during the pendency of the action, ap-pellee was appointed administratrix, and the cause was revived in her name.
At the trial of the cause, after appellant had introduced her testimony, the court peremptorily instructed the jury to return a verdict in favor of appellee. The only question presented therefore is whether or not there was evidence legally sufficient to sustain a verdict in favor of appellant.
Appellee is a domestic corporation, organized in Mississippi County for the purpose of building and operating a public cotton gin at the town of Leachville. it. C. Clioate, a retired merchant and farmer, was the largest stockholder in the corporation, but he was not a director or officer of the company, and was in nowise connected with the management of its affairs.
The gin was completed and put into operation early in October, 1921, and on October 14, according to the undisputed evidence, Choate visited the gin plant and entered the engine room, without the knowledge of any one at the gin. The first one to discover his presence there was the machinist in charge, who testified that he went into the engine room and saw Mr. Choate standing there as if he were examining a pump, and that, as the .belt had broken once before, he was in the act of calling out a warning to Choate when the belt broke loose from the drive-wheel and struck Choate’s hand, breaking the bones in two of his fingers. The gin had been in operation three or four days, and this was Choate’s first appearance at the gin, so far as the testimony in this case discloses. The belt was one which revolved around the drive-wheel, was about seventy-five feet in length, fourteen inches wide, five-ply in thickness, and made of rubber. The ends were fastened together by hooks specialty prepared for that purpose. Originally the belt had been cut too short and had to be spliced by another piece fourteen or sixteen inches in length, and each end of the spliced pieces was fastened to or connected with the main part of the belt by hooks. The proof shows that the hooks were of standard make and in common use for fastening belts, though there is another method adopted by using lace leather. The unfastening of the belt was caused by the hooks pulling ont.
Appellee introduced no testimony, bnt its manager, Rose, and the machinist in charge, G-roves, were introduced as witnesses by appellant, and the testimony of those witnesses was relied upon by appellant as making a case in her favor. Rose testified that several times during the construction of the gin Choate asked him, when they met by chance, how they were getting along at the gin plant; that he made reply to Choate that they were getting along all right, and invited Choate to come down to the plant and look it over. Rose testified that these conversations occurred several times up to about the time, or perhaps after, the gin was started into operation, but the witness was not certain that the conversations occurred after the gin was started. The statements of the witness, as they appear in the transcript, are as follows:
“Q. State whether or not you ever extended to him an invitation to come down to the premises and look the machinery over? A. I had at times. I didn’t that morning. In fact, I didn’t know he was in the gin that morning until he was hurt. I had invited him down at times before that. Q. "Well, was that a general-invitation, or an invitation to come and see certain parts of it? A. Well, I had asked him to come down and look it over.”
On cross-examination the statements of the witness were as follows:
“Q. Mr. Choate was a stockholder? A. Yes sir. Q. One of the largest? A. Yes sir; he was the largest. Q. Was he a 'director in the company? A. No sir. Q. He had nothing to do with the running of the gin? A. No sir. Q. You say that you had invited him to come to the gin? A. Yes sir. Q. That is while yon were building it? A. Yes sir. Q. How did you happen to do that? A. Well, I would be talking to him, and he would say, ‘How are yon getting along down there?’ and I would say, ‘All right,5 and he said, ‘Well, I am coming down and see how you are getting along,’ and I said, ‘All right, come down.’ Q. That would be the extent of your invitation, would it? A. Yes sir. Q. You didn’t know he was there that morning? A. No sir. Q. And he had no invitation from you to be there that morning? A. No sir. Q. You had not invited him to be in there at any time while the machinery was in operation, had you? A. I had just invited him down at different times. Q. Well, did you ever invite him to come down there and stand around while the machinery was in operation? A. Well, I had just invited him down is all. * * * Q. Your invitation was just casually made to him to come down? A. I just invited him to come down and look over the proposition.”
The redirect examination on this subject was as follows: “Q. You say you invited him while the gin was being erected to come down? A. Yes sir. Q. And after it was finished, tell the jury whether you then invited him to come down or not? A. Well, I couldn’t say. I could not say whether it was. after it was finished and we were running or not. He would meet me and ask me how we were getting along, and I would tell him all right, that we were going to start up. Q. State whether or not, after you told him that you were going to start up, you invited him down? A. Well, I invited him in that way.”
Further cross-examination was as follows: “Q. You didn’t invite him because of any benefit to yourself or the gin company, did you, but for his own pleasure and convenience? A. It was just out of courtesy to him. He was a stockholder in the company.”
After the court had announced the ruling that a peremptory instruction in favor of appellee would be given, counsel for appellant was granted permission to introduce additional testimony, and witness Eose was again recalled and made the following statements: “Q. When did you invite him to visit the gin in relation to the time yon commenced running the gin? A. Well, I invited him at times before we started running and some time along about the time we started to running. Q. Mr. Choate owned three or four farms around there and was raising cotton on those farms? A. Yes sir. Q. State whether or not the cotton from those farms was ginned at that gin? A. It was. Q. State whether or not you Invited other farmers around there who were prospective customers of the gin to come down and go through and look it over? A. Yes sir; I had a good many people coming down there. Q. You wanted to advertise the gin, didn’t you? A. Yes. sir.”
The only legitimate inference that can be drawn from the testimony is that Mr. Choate went to the gin on his own business as a stockholder in the corporation, and not in the interest of the corporation itself. He was, ■according to the testimony, invited there, but the Invita- . tion was only for his own purpose and interest, and not for any purposes of the corporation.
Counsel for appellant insist that the case should have been submitted to the jury for the reason that the inference might have been drawn that the corporation was inviting farmers to the plant for advertising pur- ' poses in order to induce them to patronize the gin, but we do not think that the testimony warrants any such inference. There is no testimony whatever in the record that Choate was invited there for any such purpose. On the contrary, the undisputed testimony shows that he was invited to the gin plant upon his own inquiry for the purpose of “looking it over,” as one of the stockholders interested in its . construction and operation. That being true, Choate was a mere licensee while on the premises of appellee for the purpose of inspecting the plant. The fact that he was a stockholder in the corporation did not bar him from recovering damages caused by the negligence of the servants of the corporation, if he was rightfully on the premises otherwise than as a trespasser or a bare licensee. Morbach v. Home Mining Co., 53 Kas. 731, 37 Pac. 124. But if he went to the plant for the sole purpose of looking after his own investment, the corporation itself would have no such interest in the visit as would change his status from a licensee to that of an invitee. It is not always clear, under a given state of facts, as to what inference may he drawn as to a person being a licensee or an invitee, but one of the sure tests is whether or not the owner of the premises is interested in the presence of the visitor.
In the case of Arkansas & Louisiana Ry. Co. v. Sain, 90 Ark. 278, we said that one who went upon a train at a railroad station merely for the purpose of greeting passengers and without the intention to assist them in any way in embarking or debarking, was a licensee and not an invitee.
In St. Louis, Iron Mountain & Southern Ry. Co. v. Wirbel, 104 Ark. 236, we decided that one who went upon the premises of an owner for the purpose of seeking employment, when it was customary to employ help thebe,-was there on business of the owner so as to make him •an invitee and render the owner responsible in damáges for negligence in failing to properly make the premises reasonably safe.
In Chicago, Rock Island & Pacific Ry. Co. v. Russell, 136 Ark. 365, we held that, where the plaintiff went ■ into the railroad station to meet persons who he thought were friends of his from another town, and he was injured by falling down an open and unlighted stairway, he was a mere licensee, and the railroad company was not liable on account of failure to safely maintain the premises.
In Alfrey Heading Co. v. Nichols, 139 Art. 462, where a person had bought firewood at a manufacturing plant and went there for the purpose of hauling it away, and was injured by negligence in the maintenance of the premises, we held that the owner of the plant had such an -interest in the presence of the visitor as to make the transaction one in which the visitor was an invitee rather Limn a licensee, and that the owner was responsible for damages.
According to these tests, there is no escape from the conclusion that, if Mr. Choate went to the premises merely as a stockholder for the purpose of looking over the subject-matter of his investment, he was a mere licensee, and we think that this state of facts is shown by the undisputed evidence. In all of our decisions on the subject — and there are many — we have adhered to the rule that one who goes upon the premises of another as a mere licensee is in the same attitude as a trespasser so far as concerns the duty which the owner owes him for his protection; that he takes his license with its concomitant perils, and that the owner owes- him no duty of protection except to do no act to cause his injury after his presence there is discovered. St. L., I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489; Ark. & La. Ry. Co. v. Sain, supra; C. R. I. & P. Ry. Co. v. Payne, 103 Ark. 227; St. L., I. M. & S. Ry. Co. v. Pyles, 114 Ark. 218; Alfrey Heading Co. v. Nichols, supra; C. R. I. & P. Ry. Co. v. Russell, supra; Mitchell v. Ozan-Graysonia Lumber Co., 151 Ark. 6.
It is unnecessary to discuss any question of negligence of appellee in fastening the belt together, for, since it is found that appellant’s intestate was there as a licensee, and that no affirmative act of negligence was committed after he went upon the premises, there is no liability.
The court was therefore correct in directing the verdict, and the judgment is affirmed. | [
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JOHNSON, J.
The first question is, whether a duebill not payable to order or bearer is assignable. We have no doubt that a due-bill is embraced by the words of the statute, “bonds, bills, and promissory notes.” Geyer,. Dig. 66. The second question is, whether a duebill can be assigned by an agent. Of this we have no doubt, and consider it too clear to require reasoning. Kyd, Bills, 33; Chit. Bills, 198; Poth. Obl. 74, 448. Judgment affirmed.
Story, Bills, 76; Bayley. Bills. 69-74. Bui this must be done in the name of the principal; otherwise the agent will be held personally liable. To bind the principal and exonerate himself, he should regularly sign thus: “A. B. (principal) by C. D., his agent” or “attorney,” as the case may be, or what is less exact, but would suffice, “C. D. for A. B.” Story, Bills, 76. 77: Story, Ag. 153. In commercial and maritime contracts to promote public policy and encourage trade, if it can on the whole instrument be collected that the object is to bind the principal, and not the agent, courts of justice will adopt that construction of it, however loosely or informally expressed. Story, Ag. 154. | [
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COURTNEY HUDSON GOODSON, Justice.
|,Appellant Blake Walden appeals a probation-revocation order from the Sebastian County Circuit Court sentencing him to a term of fourteen years in the Arkansas Department of Correction plus eight years’ suspended imposition of sentence, to run consecutively. On appeal, Walden contends that the fourteen-year sentence imposed upon his revocation is illegal because (1) upon revocation, the circuit court imposed a sentence in excess of the originally imposed suspended sentence; and, (2) the circuit court improperly imposed multiple suspended sentences to run consecutively, despite the fact that his original suspended sentences ran concurrently. In short, Walden contends that the maximum sentence available upon his revocation was eight years’ imprisonment with the two suspended sentences to run concurrently to that term, as opposed to the fourteen-year imprisonment followed by two consecutive terms of suspended sentences imposed by the circuit court. He requests that this court correct his sentence by reducing it to a term of no more than eight years. The court of appeals recommended this case for certification to this court on the basis that it presented an issue of substantial public interest and a legal principle of major importance. This | {.court accepted certification, and our jurisdiction is proper pursuant to Arkansas Supreme Court Rule 4-2(d)(2). We affirm the fourteen-year term of imprisonment and modify the two suspended sentences to run concurrently with each other and with the term of imprisonment.
Walden’s original sentences stem from three difference cases, CR2004-087, a felony hot-check conviction; CR2004-088, a second-degree forgery conviction; and CR2012-470, a possession of drug paraphernalia conviction. In the felony hot-check case and the second-degree forgery case, the trial court sentenced Walden to thirty-six months’ imprisonment with an additional forty-eight months’ suspended imposition of sentence. In June 2010, Walden’s suspended sentences were revoked for these two cases. Upon revocation, he was sentenced to serve an additional thirty-six months’ imprisonment on the hot-check case and an additional forty-eight months’ suspended imposition of sentence on the second-degree forgery case. Then, in 2012, Walden was sentenced to twenty-four months’ imprisonment with forty-eight months’ suspended imposition of sentence for possession of drug paraphernalia in CR2012-470.
On April 23, 2013, the State filed a petition to revoke Walden’s suspended sentences from all three previous convictions. In the revocation petition, the State contended that IsWalden was subject to maximum sentences totaling twenty-two years’ imprisonment. The circuit court revoked Walden’s suspended sentences on each charge and imposed a sentence of fourteen years’ imprisonment for the felony hot-check charge with two additional suspended sentences of forty-eight months to run consecutively to the term of imprisonment and to each other. In total, Walden was sentenced to fourteen years’ imprisonment with an additional eight years’ suspended imposition of sentence beginning after the term of imprisonment ended.
This court views an issue of a void or illegal sentence as being an issue of subject-matter jurisdiction, in that it cannot be waived by the parties and may be addressed for the first time on appeal. State v. Webb, 373 Ark. 65, 281 S.W.3d 273 (2008) (citing Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002); Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992)). A sentence is void or illegal when the circuit judge lacks the authority to impose it. Cross v. State, 2009 Ark. 597, 357 S.W.3d 895. If we hold that a trial court’s sentence was illegal and that the error had nothing to do with guilt, but only with the illegal sentence, we can correct the sentence in lieu of remanding. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003).
In Arkansas, sentencing is entirely a matter of statute. Donaldson v. State, 370 Ark. 3, 257 S.W.3d 74 (2007) (citing Ark. Code Ann. § 5-4-104(a) (Repl.2013) (“No defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter.”)). In stating this general rule, this court has consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime. Sullivan v. State, 366 Ark. 183, 234 S.W.3d 285 (2006).
Although Walden did not raise his argument that the sentence imposed upon revocation was illegal below, this failure is not a procedural bar to our review of his sentence because an appellant can challenge an illegal sentence for the first time on appeal. For purposes of appellate review, the issue of an illegal sentence is not solely whether it is within the prescribed statutory range, but whether the trial court had authority to impose the sentence. Donaldson, supra.
Walden contends that the circuit court’s fourteen-year sentence is illegal because he was only subject to a maximum sentence of eight years based on the suspended sentences he had received in his prior revocation. In addition, Walden contends that, based on the circuit court’s originally imposed suspended imposition of sentence, the maximum sentence he could receive upon revocation for the possession of drug paraphernalia charge was forty-eight months. Combining the suspended sentences for all three charges, Walden asserts that he is subject to a maximum sentence of eight years upon revocation. In contrast, the State contends that Walden was subject to a maximum sentence of twenty-two years based on the maximum sentences available for Walden’s three pri- or convictions and after subtracting the time Walden previously served in the Arkansas Department of Correction.
As we have already mentioned, Walden pled guilty to a felony hot-check charge and a second-degree forgery charge based on crimes that occurred in 2003. Therefore, Act 1569 of 1999 was in effect at the time Walden committed these two crimes. Act 1569 amended Arkansas Code Annotated section 5-4-301 (d) to add a new subsection (d)(2), which at that Ifitime provided:
(d)(1) When the court suspends the imposition of sentence on a defendant or places him on probation, the court shall enter a judgment of conviction only if:
(A) It sentences the defendant to pay a fine and suspends imposition of sentence as to imprisonment or places the defendant on probation; or
(B) It sentences the defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment.
(2) The entry of a judgment of conviction shall not preclude:
(A) The modification of the original order suspending the imposition of sentence on a defendant or placing a defendant on probation following a revocation hearing held pursuant to 5-4-310; and
(B) Modifications set within the limits of § 5-4-303, 5-4-304, and 5^-306.
Moseley v. State, 349 Ark. 589, 595, 80 S.W.3d 325, 328 (2002). We have recognized that, as a result of the addition of subsection (d)(2) by Act 1569 of 1999, trial courts were specifically authorized to modify original court orders and even add penalties to those orders up to the statutory limits. In addition, the Act permitted trial courts to modify sentences during a revocation proceeding if the Act was in effect at the time the original crime was committed. Cf. Moseley, supra (holding that the trial court was within its jurisdiction to modify a probation order upon revocation) with Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003) (holding that Act 1569 did not permit a trial court to modify a sentence during a probation revocation when the original crime was committed prior to the effective date of the Act).
Furthermore, Arkansas Code Annotated section 5-4-309(f) (Supp.2003) was in effect at the time Walden committed his crimes. That section provided:
(A) If the court revokes a suspension or probation, it may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty.
(B) Provided, that any sentence to pay a fine or to imprisonment, when combined Uwith any previous fine or imprisonment for the offense, shall not exceed the limits of § 5-4-201 or § 5-4-401, or if applicable, § 5-4-501.
Ark.Code Ann. § 5-4-309(f) (Supp.2008).
Based on the statutes in effect at the time of Walden’s crimes, trial courts were permitted to modify original court orders, including orders of incarceration followed by suspended sentences, and impose any sentence that might have been imposed originally. Walden’s felony hot-check conviction was a Class B felony subject to a maximum term of twenty years’ imprisonment. Ark.Code Aim. § 5-4 — 401 (a)(3) (Repl.2013). Therefore, upon revocation, the trial court was authorized to modify Walden’s original sentence up to the maximum statutory sentence of twenty years, minus any previous imprisonment imposed, for that charge. The parties do not dispute that Walden has served a total of six years’ imprisonment, three years in his original sentence and three years upon his first revocation, for the felony hot-check conviction. Therefore, the circuit court’s sentence of fourteen years’ imprisonment upon his revocation for the felony hot-check conviction is not an illegal sentence.
As for Walden’s second-degree forgery conviction, it was a Class C felony subject to a maximum sentence of ten years. Ark.Code Ann. § 5-4-401(a)(4) (Repl.2013). Like his felony hot-check conviction, the parties do not dispute that Walden has served a total of six years imprisonment for his second-degree forgery conviction. Therefore, the trial court could [7properly sentence Walden to no more than four years’ imprisonment upon his revocation for second-degree forgery. The four-year suspended imposition of sentence Walden received upon revocation for the second-degree forgery charge is not an illegal sentence.
However, our inquiry into the propriety of the circuit court’s imposed sentences does not end here. Walden maintains that the trial court erred by ordering that he serve his suspended sentences consecutively. In this regard, we turn to Arkansas Code Annotated section 5^ — 307, which governs suspended sentences. That statute provides:
(a) Except as provided in subsection (c) of this section, a period of suspension or probation commences to run on the day it is imposed.
(b) (1) Whether imposed at the same or a different time, multiple periods of suspension or probation run concurrently. (2) The period of a suspension or probation also runs concurrently with any federal or state term- of imprisonment or parole to which a defendant is or becomes subject to during the period of the suspension or probation.
(c) If a court sentences a defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment, the period of the suspension commences to run on the day the defendant is lawfully set at liberty from the imprisonment.
Ark.Code Ann. § 5^-307 (Repl.2013).
As we have noted, sentencing is entirely a matter of statute in this state. Donaldson, supra; Ark.Code Ann. § 5-4-104(a). We construe criminal statutes strictly, resolving any doubts in favor of the defendant. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). We construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous,_|^and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Harness, supra. In construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect derived from the whole. Id. However, we will not interpret a statute, even a criminal one, so as to reach an absurd conclusion that is contrary to legislative intent. Windsor v. State, 338 Ark. 649,1 S.W.3d 20 (1999).
The plain language of section 5-4-307(b)(i) prohibits a circuit court from running Walden’s suspended sentences for second-degree forgery and possession of drug paraphernalia consecutively to each other. Therefore, we hold that Walden’s sentence is illegal to the extent that the trial court ordered multiple periods of suspension to run consecutively, rather than concurrently as required by section 5-4-307(b)(Z).
Finally, we examine the propriety of the circuit court's order running Walden’s suspended sentences for second-degree forgery and possession of drug paraphernalia consecutively with his fourteen-year prison sentence for the felony hot-check conviction. Walden contends that because the circuit court ordered his original sentences for the felony hot-check and second-degree forgery convictions to run concurrently, the court is precluded from ordering those sentences to run consecutively upon revocation. Walden’s argument is misplaced, and we reject his contention that the trial court was not authorized to run the sentences consecutively because his original sentences were to run concurrently. However, we hold that, pursuant to Arkansas Code Annotated section 5-4-307(b)(2), the trial court was not permitted to run two suspended sentences consecutively to the term of imprisonment that |9was imposed for a different charge.
While we have -previously held that a suspended imposition of sentence does not begin to run until after a term of imprisonment ends when both are imposed as a sentence for a single crime, we have not addressed the issue of whether a circuit court may order a suspended sentence for one or more crimes to run consecutively to a term of imprisonment for a separate crime. See Harness, supra (holding that when a defendant is sentenced to a term of imprisonment followed by a suspended sentence for a single offense, the suspended sentence does not commence until the term of imprisonment has ended and, therefore, a circuit court lacks jurisdiction to revoke the suspended sentence during the defendant’s incarceration). The State contends that Arkansas Code Annotated section 5-4-307(c) permits circuit courts to run suspended sentences consecutively to a term of imprisonment imposed for a separate charge. To reiterate, that statute states that if a court sentences a defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment, the period of the suspension commences to run on the day the defendant is lawfully set at liberty from the imprisonment. Ark.Code Ann. § 5-4-307(c). However, section 5-4-307(b)(2) provides that “the period of a suspension or probation runs concurrently with any federal or state term of imprisonment or parole to which a defendant is or becomes subject to during the period of the suspension or probation.” Ark.Code Ann. § 5-4-307(b)(2) (emphasis added). Whereas sec tion 307(c) does not explicitly contemplate sentencing for multiple offenses, the plain language of section 304(b)(2) deals specifically with suspended-sentencing procedures when a defendant is subject to or becomes subject to a term of imprisonment for | ina different offense during the period of the suspension. Pursuant to our rules of statutory construction, we give effect to the specific statute over the general statute. Searcy Farm Supply, LLC v. Merchants & Planters Bank, 369 Ark. 487, 256 S.W.3d 496 (2007). Thus, we hold that section 307(b)(2), rather than section 307(c), applies to Walden’s sentences because he was subject to the term of imprisonment for the felony hot-check conviction during the term of his suspended sentence for the second-degree forgery charge and the possession of drug paraphernalia charge.
We find additional support for this interpretation from our holding in Seamster v. State, 2009 Ark. 258, 308 S.W.3d 567. In that case, the defendant received a sentence of imprisonment for one crime and a suspended sentence for his second crime. During his period of imprisonment, the circuit court revoked his suspended sentence. On appeal, relying on Harness, he contended that the trial court could not revoke his suspended sentence because that sentence did not commence until his release from incarceration. We held that, in accordance with section 5-4-307(b)(2), his suspended sentence ran concurrently with the term of imprisonment and, therefore, the circuit court did have jurisdiction to revoke his suspended sentence during his term of imprisonment.
Finally, we note that when multiple sentences of imprisonment are imposed on a defendant convicted of more than one offense, including an offense for which a previous suspension or probation has been revoked, the sentences shall run concurrently unless, upon recommendation of the jury or the court’s own motion, the court orders the sentences to run consecutively, Ark.Code Ann. § 5-4-403(a). Although the General Assembly has clearly | nprovided that multiple sentences of imprisonment for multiple offenses may run consecutively upon the court’s order, it has not similarly provided that suspended sentences may run consecutively to a term of imprisonment when multiple offenses are involved.
In conclusion, Walden’s sentences for second-degree forgery and possession of drug paraphernalia are illegal to the extent that the circuit court ordered multiple periods of suspension to run consecutively, rather than concurrently as required by section 5-4-307(b)(l). In addition, Walden’s suspended sentences on those same two charges are illegal to the extent that they run consecutively to the imprisonment imposed for his felony hot-check conviction. Because neither issue relates to Walden’s guilt, we can correct the sentence in lieu of remanding. Harness, supra. Therefore, we affirm the circuit court’s sentence of fourteen years’ imprisonment imposed for Walden’s felony hot-check conviction, but modify the forty-eight month suspended sentence for second-degree forgery and the forty-eight month suspended sentence for possession of drug paraphernalia to run concurrently with each other and concurrently with the term of imprisonment imposed for his felony hot-check conviction.
Affirmed as modified.
. Walden committed the acts that resulted in the felony hot-check charge and the second-degree forgery charge in September and October 2003 respectively.
. Walden does not challenge the sufficiency of the evidence supporting the revocation.
. Although we cite to the current replacement volume of the Arkansas Code, we note that the language of § 5-4-401 (Repl.1997), which was the volume in effect at the time of Walden's crimes, has not changed.
. We note that this statute has not been amended since 1975. Therefore, the current volume of the Code is the same as the version that was in effect in 2003 and 2012, when Walden committed the crimes at issue. | [
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BILL H. WALMSLEY, Judge.
_JjIn this case, an express inter vivos trust failed when the settlor died without any readily ascertainable heirs. Bank of America (BA or the trustee) appeals from the judgment of the Randolph County Circuit Court, sitting as the probate court over the estate of the deceased settlor, that ordered the trustee to turn the trust assets over to the administrator of the estate. The court also ordered the trustee to reimburse the estate for expenses it charged the trust after it learned that the estate was opened and to pay attorney’s fees to the trust beneficiaries that had been located. This appeal challenges those rulings. We affirm in part and reverse in part.
|2I. Background
On December 28, 1961, Douglas Kemp created a revocable inter vivos trust for the stated purpose of relieving himself of management responsibility for his estate and placing that responsibility in the control of a professional fiduciary. Through a series of mergers, BA ultimately became the successor trustee. According to the original trust instrument, the assets were to be distributed according to Kemp’s last will and testament upon his death. The trust also provided that, if Kemp died without a will, the trust assets were to be distributed to Kemp’s heirs at law.
In November 1972, Kemp amended the trust to make the trusts of each of his parents beneficiaries. Although his parents predeceased him, Kemp never amended the trust provisions. Kemp died intestate in March 2008 with no readily ascertainable heirs.
Upon Kemp’s death, First National Bank & Trust of Mountain Home (FNB) was appointed special administrator of Kemp’s estate. FNB then contacted BA about having BA turn over the trust assets to FNB or to see if BA wanted to become the administrator of the estate.
In November 2008, BA filed a petition to terminate the trust in Craighead County Circuit Court and also sought permission to distribute the trust assets to the heirs it had | sdetermined and located. The decedent did not live in Craighead County or own any property there.
Although FNB indicated that it would intervene in the Craighead County action, more than a year later, it filed a motion in the Randolph County Probate Court asking that court to order BA to turn over the trust assets to the estate. FNB also sought an accounting by BA. Kemp’s heirs at law later joined in FNB’s motion and also sought an accounting. In its response to the motions, BA asserted that the trust assets were not assets of the estate, that no probate proceedings were necessary to determine Kemp’s heirs at law or to distribute the trust assets directly to the heirs, and denied that the probate court had jurisdiction to order BA to account for its administration of the trust.
By order entered June 1, 2010, the probate court found that upon Kemp’s death, the trust failed because there were no longer any named beneficiaries and a resulting trust came into existence, with the heirs at law becoming the beneficiaries of the trust assets. The court ordered BA to immediately pay the assets of the trust over to the estate. BA was also ordered to file “a full and complete accounting of its management of the [tjrust” for the preceding five years.
BA gave FNB an activity summary for the trust. It also paid over to the administrator the assets of the trust in the amount of $813,030.39. On July 13, 2010, FNB filed an objection, stating that this was not a proper accounting of the trust assets. FNB also reserved the right to file a claim against BA for mismanagement of the trust assets. In doing so, FNB noted that this claim might fall within the purview of the action pending in Craighead |4County.
A hearing was held on FNB’s objection on March 7, 2011, and the court made a ruling from the bench that a full and complete probate accounting was required. The court further found that the assets in the trust were assets of the decedent’s estate. The court also found that fees paid out of the trust after BA became aware that the estate had been opened should not have been charged and that BA should reimburse the estate for these fees in the amount of $48,931.78. The court said that BA’s actions came very close to shocking the conscience of the court and that it would entertain a motion for attorney’s fees within two weeks of the date of the hearing.
On April 6, 2011, BA filed a formal accounting with the probate court.
On July 18, 2011, BA filed a motion for amendment to findings of fact and reconsideration. The motion noted that the order from the March 7, 2011 hearing had not been entered by the probate court. After a September 6, 2011 hearing on the motion for reconsideration, the probate court took the matter under advisement.
The bench ruling from the March 7, 2011 hearing was reduced to a written order and entered on March 4, 2013.
On March 18, 2013, prior to the entry of an order actually awarding the fees, BA filed an objection to the award of fees. According to the objection, the attorney for the heirs did not file a motion for fees as provided by Ark. R. Civ. P. 54(e), but instead filed the motion | ¡¡directly with the court. BA also asserted that it was not notified that the hearing would be for the purpose of determining attorney’s fees and did not receive the motion until after the hearing. At the hearing, the attorney for the heirs was awarded a fee of $8,929.48.
BA filed its notice of appeal from the March 4, 2013 order on March 25, 2013. In the notice, BA specifically listed the June 1, 2010 order as one of the intermediate orders that it wanted reviewed.
The probate court denied the motion for reconsideration by order entered April 12, 2013. The court also reaffirmed its prior rulings. The same day, the court entered its order granting FNB attorney’s fees of $3,031.25 and the heirs a fee of $8,929.48. On April 19, 2013, BA filed an amended notice of appeal to include both April 12 orders.
II. Standard of Review
We review probate matters de novo but will not reverse the probate court’s findings of fact unless they are clearly erroneous. Ashley v. Ashley, 2012 Ark. App. 236, 405 S.W.3d 419. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. We must also defer to the superior position of the lower court sitting in a probate matter to weigh the credibility of the witnesses. Id.
III. Arguments on Appeal
For reversal, BA argues that the probate court lacked jurisdiction to require it to 16transfer non-estate assets to FNB and to file a probate accounting; that the probate court erred in finding its accounting was deficient and that it should repay the estate for expenses properly charged against the trust; and the court erred in requiring it to pay attorney’s fees to the heirs.
IV. Discussion
BA first argues that the probate court lacked jurisdiction over the trust assets and that those assets did not become part of Kemp’s intestate estate upon his death. We disagree. The probate court is a court of special and limited jurisdiction, even though it is a court of superior and general jurisdiction within those limits. Hilbum v. First State Bank, 259 Ark. 569, 5B5 S.W.2d 810 (1976). It has only such jurisdiction and powers as are expressly conferred by statute or the constitution, or necessarily incident thereto. Id. The authority and jurisdiction of probate courts are to be strictly construed. Kidwell v. Rhew, 371 Ark. 490, 268 S.W.3d 309 (2007). The constitution vested in the probate courts exclusive original jurisdiction “in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law.” Ark. Const, art. 7, § 34, as amended by amend. 24, § 1; Hilbum, 259 Ark. at 572, 535 S.W.2d at 812. Thus, the probate court, in the exercise of its jurisdiction to administer the estates of decedents, is authorized to determine what property belongs to the estate. Carlson v. Carlson, 224 Ark. 284, 273 S.W.2d 542 (1954); White v. Toney, 37 Ark.App. 36, 823 S.W.2d 921 (1992).
17This brings us to the question of whether the trust assets became assets of Kemp’s estate upon his death. Our supreme court has addressed a somewhat similar issue and held that a resulting trust arose in favor of the settlor where an express trust failed because it violated the rule against perpetuities. O’Neal v. Warmack, 250 Ark. 685, 466 S.W.2d 913 (1971). A “resulting trust” arose because the inference was that the trustee was not to keep the property; and because no other disposition was made of it, the trustee was required to return the property to the creator of the trust, or to his successors if he was dead. See W. Fratcher, Scott on Tmsts section 404.1 (4th ed.1988). Likewise, other courts have held that where an express trust fails for lack of a dispositive provision, a resulting trust arises in favor of the settlor or the settlor’s estate. Hansen v. Bear Film Co., 28 Cal.2d 154, 168 P.2d 946 (1946); Estate of McReynolds, 800 S.W.2d 798 (Mo.Ct.App.1990); Schenerlein v. Schenerlein, 197 N.E.2d 231 (Ohio Ct.App.1963); Gamble v. Malone, 182 P.3d 171 (Okla.Civ.App.2008); Rainey v. Rainey, 795 S.W.2d 139 (Tenn.Ct.App.1990). See also generally George E. Palmer, The Effect of Indefiniteness on the Validity of Tmsts and Powers of Appointment, 10 UCLA L.Rev. 241, 280-81 (1963); B.P. de R. O’Byrne, Annotation, Disposition of Property of Inter Vivos Tmst Falling in After Death of Settlor, Who Left Will Making No Express Disposition of the Tmst Property, 30 A.L.R.3d 1318 (1970); Restatement (Third) of Trusts §§ 7 cmt. e, 8 (2003). Therefore, the probate court correctly determined that the trust res became an asset of the estate upon Kemp’s death.
For its second point, BA argues that the probate court erred in ordering it to reimburse the estate for expenses BA incurred in the administration of the trust. Contrary to BA’s argument, the probate court did not order BA to reimburse the estate because its accounting |8was deficient. Instead, the court considered the expenses that BA incurred, such as trustee’s fees for itself, its attorney’s fees, and the fees for the heir-locator service it hired to be improper expenses.
Generally speaking, a trustee may incur expenses that are necessary to carry out the purposes of the trust. See Restatement (Second) of Trusts § 188. For example, it is appropriate for a trustee to incur expenses for costs in maintaining or defending a judicial proceeding for the benefit of the trust estate, such as litigation to resist claims that may result in a loss to the trust estate. See id,.; see also 3 Scott on Trusts § 188.4 at 62 (4th ed.1988). When a trustee properly incurs expenses, he is entitled to reimbursement out of the trust estate for such expenses. See Restatement (Second) of Trusts § 244. Where an expense is not properly incurred, however, the trustee is not entitled to reimbursement from the trust estate. See id. § 245. A trustee is not entitled to reimbursement for expenses that do not confer a benefit upon the trust estate, such as those expenses related to litigation resulting from the fault of the trustee. See 3 Scott on Trusts § 188.6 at 70.
With these principles in mind, we turn to BA’s argument. We hold that the court in Randolph County could not properly review the trust’s expenses because those issues were already pending in Craighead County when FNB first sought to have the court in Randolph County exercise control over the trust. The common-law rule on concurrent jurisdiction provides that “[w]here concurrent jurisdiction is vested in different tribunals, the first ^exercising jurisdiction rightfully ae-quires control to the exclusion of, and without interference of, the other.” Foster v. Hill, 372 Ark. 263, 267, 275 S.W.3d 151, 154 (2008) (quoting Patterson v. Isom, 338 Ark. 234, 239, 992 S.W.2d 792, 796 (1999)). “[Wjhen a court of competent jurisdiction acquires jurisdiction of the subject matter of a case, its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of, and no coordinate authority is at liberty to interfere with its action.” Foster, 372 Ark. at 267, 275 S.W.3d at 154 (quoting Askew v. Murdock, 225 Ark. 68, 71-72, 279 S.W.2d 557, 560 (1955)). BA filed its petition in Craighead County, which involved issues surrounding the trust, on November 21, 2008, while FNB did not ask the court in Randolph County to exercise its authority over the trust until more than a year later, on December 3, 2009. Under the common law on concurrent jurisdiction, as of that date, Craighead County had acquired exclusive authority to administer the trust, including determining what were and were not appropriate trust expenses.
This brings us to BA’s final issue concerning the probate court’s award of attorney’s fees to the heirs. With inapplicable exceptions, a probate court may not award attorney’s fees unless authorized by statute. In re Estate of Reimer, 2010 Ark. App. 41, 2010 WL 132348. It is also well settled that probate courts do not have jurisdiction to award attorney’s fees to individual beneficiaries. Swaffar v. Swaffar, 327 Ark. 235, 938 S.W.2d 552 (1997).
The heirs argue that an award of fees is proper as a sanction because BA failed to submit a proper accounting as ordered by the probate court. The heirs cite Arkan sas Code Annotated section 28-52-103(c) and this court’s decision in Hartsfield v. Lescher, 104 Ark.App. | 101, 289 S.W.3d 123 (2008), as authority for the award. The probate court’s order awarding fees to the heirs in the present case was based on their objections to BA’s original accounting. The court also made it clear that the fees were for the purpose of the accounting issue only. Therefore, the only logical conclusion is that the court based its award of fees on section 28 — 52—103(c). However, section 28-52-103(c) is inapplicable in the present case because section 28-52-103 speaks in terms of the personal representative’s duty to file accountings and possible sanctions for failing to do so. BA was not acting as the personal representative when it filed its first accounting that the court deemed improper. Harts-field is likewise inapplicable because it involved a personal representative who failed to account. Because section 28-52-103(c) does not apply to this case, there is no authority for the probate court’s award of attorney’s fees to the heirs.
V. Conclusion
In conclusion, we affirm that the probate court had jurisdiction to determine that the trust’s res became an asset of the estate upon the settlor’s death; however, the court did not have jurisdiction to determine the propriety of the expenses BA paid out of the trusts or to award attorney’s fees to the heirs. Therefore, we reverse the probate court on those issues.
Affirmed in part; reversed in part.
GRUBER and GLOVER, JJ„ agree.
. The parents’ trusts were established on July 1, 1969.
. Kemp’s father died in 1979; his mother died in 1998.
.Ultimately, approximately twenty heirs were located. Eight of these heirs retained counsel and participated in the proceedings below. These eight are the heirs referred to throughout this opinion.
. Apparently, the probate court was concerned that the accounting was not verified, as is required for probate accountings. See Ark.Code Ann. § 28-52-104 (Repl.2012).
. The fees to FNB’s attorney were to be paid by the estate, while the fees to the heirs were to be paid by BA. BA does not challenge the fees awarded to FNB.
. Although this issue may be moot in light of BA's concession at oral argument that it was not seeking to undo the distribution, we nevertheless address the merits.
. Actually, there were three heir-locator services because the administrator, BA, and the heirs each hired their own search firm. We are only concerned with the fees to the firm hired by BA.
. BA notes in its brief that the heirs did not file an objection to the accounting. Nor does the record contain the heirs’ motion for attorney's fees. | [
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ROBERT J. GLADWIN, Chief Judge.
h Stephen Brian Cole appeals the revocation of his probation in the Garland County Circuit Court, where he was sentenced to 120 months’ imprisonment in the Arkansas Department of Correction. On appeal, he argues that the State failed to introduce substantial evidence that he violated a condition of his probation. We affirm.
On March 8, 2010, Cole was charged with domestic battery in the second degree. An order for a mental-health evaluation was entered on March 30, 2010. On August 20, 2010, Dr. Paul Deyoub’s forensic — evaluation report was filed with the court. Dr. Deyoub concluded that Cole did not suffer from a mental disease or defect and could assist in his defense.
Cole pled guilty to second-degree domestic battery on November 8, 2010, after admitting to causing serious physical inju ry to his sixty-four-year-old mother. Pursuant to the plea agreement, he received five years’ probation with the condition, among others, that |2he receive mental-health treatment. He was examined at the Arkansas State Hospital, and that forensic report was filed on November 30, 2010. The report concluded that Cole did not suffer from a mental disease or defect. Cole then began a course of treatment through Day Springs Behavioral Health Services in Hot Springs. On June 11, 2011, Karen S. Wright of Day Springs wrote to Donnie March of the Garland County Probation Office informing him of Cole’s continued treatment at Day Springs. The record shows no other treatment or release by Day Springs.
On August 29, 2011, Cole petitioned for relief from supervision, but the State objected, citing the special conditions of Cole’s probation and the violent nature of his offense. After a hearing, the petition was denied by order filed September 23, 2011. On March 2, 2012, Cole again petitioned for relief from supervision, claiming that medication was the cause of his prior bad behavior. The State filed a response objecting for the same reasons it had objected to the first petition.
While the second motion for relief from supervision was pending, the State filed a petition to show cause on May 7, 2012, alleging that Cole’s probation should be revoked because he had violated a condition of his probation that required him to obtain prior approval before leaving his residence for an extended period of time. The condition states as follows:
8. You must keep your current residential address with the Clerk of this Court [2nd Floor, Garland County Courthouse, Room 207, phone number (501) 622-3760] at all times while you are on probation. In addition, you must notify your supervising officer in advance of any change of address, employment, telephone number, or family status. Prior approval from a ^supervising officer is required for you to change or stay away on an extended basis from your place of residence or to quit your employment.
At the revocation hearing on August 7, 2012, Brent Scrimshire, a probation officer in Garland County, testified that he had supervised Cole’s probation. He explained that Cole’s supervision was minimum, which required Cole to report to probation every three months. He said that one condition of Cole’s probation was to notify probation of any address change. On April 20, 2012, Cole’s mother had contacted Scrimshire stating that Cole needed to go to a treatment center in California. Scrimshire told her that it could be done the following week, but not without permission from Scrimshire’s supervisor. On April 25, 2012, Cole’s mother went to Scrimshire’s office and told him that Cole was in California. Mr. Jonathan Gervasi from A Better Tomorrow in Murrieta, California, sent Scrimshire paperwork confirming that Cole was admitted to that facility. Scrimshire did not approve Cole’s travel to California or his admission into that facility. He said that after he had verified the information, he filed the violation report, and, at first sighting, Cole was arrested.
Cole’s mother, Lois Cole, testified about her son’s mental-health treatment following his placement on probation. She said that she made the decision for her son to go to California. She told the facility in California that her son could not get a travel pass, and she was told that they would not be able to hold a place for her son if she did not bring him right away. She stated that she did not realize that they were running the risk of having her son put in jail because the facility in California told her that their legal department would take care of it.
| ,tAt the close of the evidence, Cole asked that the petition be dismissed because there had not been a showing of a willful violation of the court’s rules. The circuit court denied the motion.
Cole testified at a sentencing hearing held September 4, 2012, and he explained his mental-health condition, acknowledged his mistake “with the hospital in California,” and sought another chance to adhere to the conditions of his probation. At the disposition hearing on October 30, 2012, the circuit court revoked Cole’s probation and sentenced him to ten years’ imprisonment. The circuit court filed findings of fact, which stated that
the Defendant violated Condition Number 8 of his conditions of probation by leaving his approved residence without prior approval of his probation officer. Defendant left the State of Arkansas and traveled to California without permission on or about April 25, 2012, while on probation.
From the sentencing order, Cole filed a timely notice of appeal, and this appeal followed.
In revocation proceedings, the State has the burden of proving that the defendant violated the terms of his probation, as alleged in the revocation petition, by a preponderance of the evidence; this court will not reverse a circuit court’s decision to revoke unless it is clearly against the preponderance of the evidence. Mott v. State, 2013 Ark. App. 529, 2013 WL 5371938. When appealing a revocation, it is the appellant’s burden to prove that the circuit court’s findings were clearly against the preponderance of the evidence. Id. The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Ortiz v. State, 2013 Ark. App. 442, 2013 WL 4557505.
Cole contends that the State failed to introduce substantial evidence that he had violated the condition of his probation that required him to notify his supervising officer in |fiadvance of any change of address and to get prior approval from a supervising officer to change, or stay away on an extended basis from, his place of residence. He claims that the record is void of any testimony that he permanently changed his address. He contends that his scheduled stay at the California facility was for twenty-eight days. He notes that because he was on minimum supervision, his scheduled appointment with probation would have been June 13, 2012. He argues that he would have been discharged from the California facility on May 20, 2012, had he stayed the scheduled twenty-eight days. Thus, he would have been back to his permanent residence before his scheduled meeting with Scrimshire. He asserts that his move was not permanent.
He contends that the trial court’s reasoning “flies in the face” of what he was trying to do — rehabilitate himself by seeking treatment at the California facility. Further, he maintains that there is no requirement in Condition # 8 that he notify the probation office that he is leaving his approved residence. He argues that the only time approval from a supervising officer is necessary is for a change of his approved address or for his plans to stay away on an extended basis. Because he was in California only for fifteen days, he maintains that he was not away for an extended time. Finally, he argues that if there was a violation, it was excusable because he was continuing to seek treatment, which was part of the original terms of probation.
The State contends that the revocation is supported by a preponderance of the evidence, citing Scrimshire’s and Lois Cole’s testimony as set forth above. We agree that the circuit court’s decision is not clearly against the preponderance of the evidence. Condition |fi# 8 requires that Cole obtain prior approval to stay away from his place of residence on an extended basis. He failed to do this, and that was a clear violation of his probation.
Affirmed.
PITTMAN, WYNNE, WHITEAKER, WOOD, and BROWN, JJ., agree.
HARRISON, VAUGHT, and HIXSON, JJ., dissent. | [
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WAYMOND M. BROWN, Judge.
| jAppellant appeals from the Arkansas Workers’ Compensation Commission’s (Commission) reversal of the administrative law judge’s (ALJ) denial of benefits to appellee on finding that appellee proved that he sustained a compensable injury and proved that he was entitled to temporary total-disability benefits and reasonably necessary medical treatment. Appellant’s sole point on appeal is that there was not substantial evidence to support the Commission’s finding that appellee proved that he sustained a compensable injury and proved that he was entitled to temporary total-disability benefits and reasonably necessary medical treatment. We affirm.
Appellee had been employed by appellant as a mechanic for one week on August 31, 2008. On that date, appellee accompanied his brother, Tyler Treadaway, also employed by appellant, on Tyler’s second service call. While on that service call, appellee |2was injured when a tire exploded while he was airing it up. As a result, appellee sustained multiple injuries that required him to be transported by med-flight to a hospital in Memphis where he underwent surgery.
Following the incident, appellee filed a claim for workers’ compensation benefits; however, there is nothing showing the date appellee filed his claim for workers’ compensation benefits, and appellant had no recollection of the same. It is clear from the record that appellant also filed a claim with the Commission regarding appellee’s incident. Nothing in the record shows the date appellant filed his claim; however, it is clear that he learned that he did not have workers’ compensation insurance upon so filing. Following an investigation by the Commission’s Compliance Division, appellant was charged on October 22, 2008, with violation of Arkansas Code Annotated section ll-ÍM06(a) for failure to secure workers’ compensation coverage. He was found to be noncompliant and fined in an order dated December 11, 2008. We note that it is not clear from the record whether appellant contested appellee’s workers’ compensation claim from its initial filing or only after learning that he was not insured.
A hearing on appellee’s claim was held before an ALJ on February 21, 2013. At that hearing, appellee testified, in pertinent part, that he had worked for appellant for one week at the time of the incident; was hired as a diesel mechanic; and had no experience or | straining with truck tires. He further testified that another employee, James, was on call on the day of the incident, although Tyler was called to service a truck; that Tyler said appellant told Tyler to take appellee with him on the call, which Tyler did; and that appellee had completely repaired one tire and was in the process of airing up a second tire when “[that] tire exploded in [his] face.” Finally, he testified that “there was no rule about one person going or two people going” on a service call.
In pertinent part, Tyler testified that appellee was not mentioned when he first received the service call from appellant, but that appellant “approved [Tyler] to take [appellee]” on the service call, “saying something to the effect of sure, take him along” when Tyler called back and requested appellee’s assistance. He went on to testify that appellant did not ask any questions about whether appellee should have been at the site of the incident and “did not criticize or reprimand [Tyler] for taking [appellee].”
Appellant was the final person to testify. In pertinent part, he testified that appellee was not scheduled to work on the day of the incident; that Tyler, not James, was on call as he had the appellant’s personal shop phone, which was always given to the person who was on call; and that he told Tyler no when Tyler asked if appellee could go on the service call. Appellant gave three reasons for saying no to Tyler’s request: (1) appellee was not on call, (2) appellant had a policy of never having more than one person on a service |4call for safety reasons, and (3) appellee was inexperienced with the type of tire involved and therefore was not qualified to work the call.
Appellant testified further that he had “no idea that [appellee] was in the truck” and that he questioned Tyler about appel-lee’s presence at the service call when Tyler called to report the incident, though he did not bring it up when he arrived at the site due to worry for appellee’s well-being. Of note was appellant’s testimony that he paid appellee’s wife “$800 a week for several weeks after” the incident though appellee had only worked for one week at the time of the incident. He only stopped the payments upon learning that appellee’s wife had retained an attorney, at which point he testified to stating “Okay. I’m not paying anymore.”
Following the hearing, the ALJ issued an opinion on May 22, 2013, finding that appellee failed to carry his burden to prove that he had sustained a compensable injury. Following an appeal to the Full Commission, it issued an opinion on October 9, 2013, reversing the ALJ and finding that appellee proved he sustained a compensa-ble injury and proved he was entitled to temporary total-disability benefits and reasonably necessary medical treatment.
This timely appeal followed.
In appeals involving claims for workers’ compensation, we view the evidence in the light most favorable to the Commission’s decision and affirm the decision if it is |fisupported by substantial evidence. Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm.
Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission, and when there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. The Commission is not required to believe the testimony of the claimant or any other witnesses but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief.
The sole issue on appeal is whether there was substantial evidence supporting the Commission’s finding that appellee proved that he sustained a compensable injury and proved that he was entitled to temporary total-disability benefits and reasonably necessary medical treatment. Appellant argues that the Commission erred in its findings of fact and application of the law regarding employment services. Specifically, appellant argues that the fact that “[ajppellee was arguably advancing his employer’s interest at the time of the | (¡accident” did not negate the fact that appellee, according to appellant, was performing employment services outside the time and space boundaries of his employment when the injury occurred. We disagree.
Pursuant to Act 796 of 1993, we are required to strictly construe the workers’ compensation statutes. Act 796 defines a compensable injury as “[a]n accidental injury ... arising out of and in the course of employment.” A compensable injury does not include an “[ijnjury which was inflicted upon the employee at a time when employment services were not being performed.” Act 796 fails, however, to define the phrase “in the course of employment” or the term “employment services.” Thus, it falls to the court to define these terms in a manner that neither broadens nor narrows the scope of Act 796.
Our supreme court has held that an employee is performing “employment services” when he or she “is doing something that is generally required by his or her employer.” This court uses the same test to determine whether an employee was performing employment services as we do when determining whether an employee was |7acting within the course of employment. The test is whether the injury occurred “within the time and space boundaries of the employment, when the employee [was] carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly.” The critical inquiry is whether the interests of the employer were being directly or indirectly advanced by the employee at the time of the injury. Moreover, the issue of whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case.
The parties stipulated to an employee-employer-carrier relationship between appellant and appellee on August 31, 2008. There was no denial by either party that appellee was injured. Likewise, there was no disagreement on the same between the ALJ and the Full Commission. In reversing the ALJ’s decision, the Commission’s decision relied totally on testimony, which was the only non-medical evidence offered by either party. In finding that appellee was directly advancing the employer’s interests at the time of the incident, the Full Commission stated:
[T]he testimony of Tyler Treadaway and Cheyne Treadaway are entitled to significant evidentiary weight, and we find that Tyler and Cheyne’s testimony was more credible than Billy Hill’s testimony.
| ¡Moreover, the Full Commission does not find credible Billy Hill’s assertion that he did not “authorize” the claimant to assist in repairing the truck tires on August 31, 2008.
We note Tyler’s testimony that he, like the claimant, was inexperienced in repairing large truck tires.
The Full Commission noted further appellant’s agreement that V & H Tire benefited from the work appellee performed on August 31, 2008. From this, it is obvious that the Commission’s decision to reverse was based on issues of credibility alone.
As our law currently stands, the Commission hears workers’ compensation claims de novo on the basis before the ALJ, and this court has stated that we defer to the Commission’s authority to disregard the testimony of any witness, even a claimant, as not credible. Because questions of credibility are the exclusive province of the Commission, which is not required to believe the testimony of the appellant or any other witnesses and may choose what it deems worthy of belief, we are foreclosed from determining the credibility and weight to be accorded to each witness’s testimony. Accordingly, we affirm.
Affirmed.
PITTMAN and WYNNE, JJ„ agree.
. Testimony was in conflict regarding whether Tyler was on call, with appellee and Tyler asserting that Tyler was not on call and appellant asserting that Tyler was on call.
. (Repl. 2002).
. Appellant was fined $10,000.00, with $2,500.00 due to the Death and Permanent Total Disability Trust Fund within thirty days of the date of the order and the remaining $7,500.00 suspended with a provision that it would become due if appellant canceled his workers’ compensation coverage. Appellant was also required to pay any valid claims which might have, or may be, filed against him during the period of his non-compliance.
. No last name is given for James.
. Appellee admitted that he never spoke with appellant himself.
. James was only a part-time detail person who would service a small car tire "every once in a while.”
. Appellant also gave a fourth reason, specifically, that he had seen appellee drinking a beer at the shop earlier on the day of the incident.
. Appellant testified that he and Tyler completed the service call while appellee was being transported to the hospital.
. Flynn v. J.B. Hunt Transp., 2012 Ark. App. 111, at 6, 389 S.W.3d 67, 70 (citing Leach v. Cooper Tire & Rubber Co., 2011 Ark. App. 571, 2011 WL 4477865).
. Id.
. Id.
. Hope Sch. Dist. v. Wilson, 2011 Ark. App. 219, at 4, 382 S.W.3d 782, 786 (citing Neal v. Sparks Reg’l Med. Ctr., 104 Ark.App. 97, 102, 289 S.W.3d 163, 167 (2008)).
. Id.
. Wood v. Wendy's Old Fashioned Hamburgers, 2010 Ark. App. 307, at 4, 374 S.W.3d 785, 788 (citing Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 375, 284 S.W.3d 57, 60 (2008) (citing Ark.Code Ann. § 1 l-9-704(c)(3) (Repl. 2002))).
. Id. (citing Ark.Code Ann. § 11 — 9— 102(4)(A)(i) (Supp.2009)).
. Id. (citing Ark. Code Ann. § 11 — 9— 102(4)(B)(iii)).
. Id. (citing Texarkana Sch. Dist., 373 Ark. at 376, 284 S.W.3d at 61).
. Id.
. Wood, supra, at 4, 374 S.W.3d at 788 (citing Texarkana Sch. Dist., 373 Ark. at 376, 284 S.W.3d at 61).
. Gingras v. Liberty Bank, 2011 Ark. App. 65, at 6, 381 S.W.3d 112, 116 (citing Texarkana Sch. Dist., 373 Ark. at 376, 284 S.W.3d at 61 (2008)).
. Id. (citing Texarkana Sch. Dist., 373 Ark. at 376-77, 284 S.W.3d at 61).
. Id. (citing Texarkana Sch. Dist., 373 Ark. at 377, 284 S.W.3d at 61).
. Hudak-Lee v. Baxter Cnty. Reg’l Hasp., 2011 Ark. 31, at 5, 378 S.W.3d 77, 80 (citing Texarkana Sch. Dist., 373 Ark. at 377, 284 S.W.3d at 61).
. Wilson v. Smurfit Stone Container, 2009 Ark. App. 800, at 6, 373 S.W.3d 347, 351 (citing Bray v. Int’l Wire Grp., 95 Ark.App. 206, 235 S.W.3d 548 (2006)).
. Hudak-Lee, supra, at 5, 378 S.W.3d at 80 (citing Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008); Arbaugh v. AG Processing, Inc., 360 Ark. 491, 202 S.W.3d 519 (2005); see also Ozark Natural Food v. Pierson, 2012 Ark. App. 133, 389 S.W.3d 105; Diggs v. Cattlemen's Livestock Market, Inc., 2010 Ark. App. 311, 374 S.W.3d 806). | [
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DAVID M. GLOVER, Judge
hAppellants Kevin Burnett and Larrea-sha Adams argue pro se on appeal that the trial court erred in finding Adams cosigned a promissory note in favor of appellee Rush & Company, Inc. (Rush) and entering a judgment against them in the amount of $15,380.24. They further argue the trial court erred in deftying admission of Adams’s driver’s license into evidence and allowing Rush’s counsel to improperly “testify” about Adams’s license. We affirm.
Rush filed a complaint for breach of contract against Burnett and Adams in June 2014 for default on a promissory note. Both Burnett and Adams denied Adams, had signed the promissory note.
At trial, the evidence presented showed that Rush sold Adams a home in Pulaski County in 20.11. The HUD settlement statement, dated July 29, 2011, indicated the contract sale price for the home was $283,000, with a deposit of $12,500 and a mortgage of $273,750. 12Rush introduced into evidence an installment promissory note dated August 1, 2011, between Burnett and Adams as borrowers and Rush as lender, for the amount of $12,600, with an annual interest rate of eight percent. The note provided installment payments would be made monthly in the amount of $569.86 for principal and interest beginning on September 1, 2011, and continuing until July 1, 2013, at which time the remaining principal and interest would be due in full. The promissory note was secured by the residence Rush had sold to Adams, and it purportedly bore the signatures of both Burnett and Adams. Ben Rush, owner of Rush, testified he financed the difference between the sales price and the mortgage amount for Adams and Burnett because they were unable to obtain financing for the entire purchase price. Ben Rush explained that the promissory note was for $12,600, and the $100 difference between the down payment and the promissory-note amount was for the few extra days of interest. Ben Rush stated Burnett made only one payment on the note. He testified he saw Burnett sign the promissory note, and. while he did not see Adams sign the note, Burnett took the note to Adams to sign and returned it to him, representing to him that Adams had signed it.
Both Burnett and Adams denied Adams had signed the promissory note. Burnett admitted he had signed the note and owed Rush, but claimed Adams knew nothing about the note. Adams denied she had signed the promissory note, and she offered her driver’s license signature as proof that it was not her signature on the promissory note. Rush’s counsel objected to the driver’s license being presented as proof, not only because Adams denied signing the note, but also because the driver’s license signature was not a fair repre-sentationjjof a signature. The trial court stated it did not make much difference because, if Adams did not sign the note or did not know about it, then there was fraud committed. The trial court then ruled in favor of Rush, and Burnett and Adams now appeal.
Our standard of review following a bench trial is whether the circuit court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Steele v. Lyon, 2015 Ark. App. 251, 460 S.W.3d 827. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. The appellate court gives due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Id.
On appeal, Burnett and Adams argue the evidence that Adams signed the note was insufficient. Specifically, they assert the only evidence to show that Adams was a signatory was her name on the signature line, which was refuted by Burnett’s and Adams’s denials that Adams had signed the promissory note. We disagree. Rush presented the promissory note for $12,600, purportedly bearing not only Burnett’s signature but also Adams’s signature; the HUD statement showing the selling price of the house was $283,000, the mortgage was $273,750, and there was a down payment of $12,500; and Ben Rush’s testimony that Burnett had taken the promissory note for Adams to sign and had represented to him that she had signed it. Due to the conflicting evidence presented, this was a credibility determination for the trial court to make. We hold the trial court’s determination that Adams had signed the promissory note was not clearly erroneous.
RBurnett and Adams also challenge the fact that the trial court did not consider Adams’s driver’s license to compare her license signature with the signature on the note. When they attempted to introduce the license, Rush objected, but the trial court' never ruled on Rush’s objection. Because Burnett and Adams did not obtain a ruling, this argument is not preserved for our review; it is an appellant’s burden to obtain a ruling to preserve an issue for appeal, and the failure to do so precludes our review. Hurst v. Arkansas Radiology Affiliates, P.A., 2015 Ark. App. 338, 2015 WL 2438107. Furthermore, even if a ruling had been obtained, Burnett and Adams never proffered Adams’s, driver’s license. 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. Wymer v. Hutto, 2014 Ark. App. 497, 442 S.W.3d 912.
Affirmed..
Whiteaker and Brown, JJ., agree. | [
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JOHN MAUZY PITTMAN, Judge.
| TThis case involves a motor-vehicle accident that occurred on September 10, 2009, in Arkansas. Appellants were traveling on Interstate 30 when they were struck head-on by a vehicle driven by Jerry Adams. Mr. Adams, who was determined to be at fault in that accident, had automobile insurance with a policy limit of $50,000. Appellant Cyrena Hoosier sustained severe injuries and incurred approximately $200,000 in medical bills. Mrs. Hoosier was an insured on an automobile-insurance policy issued by appellee Interinsurance Exchange (AAA) with a limit of $50,000 for damages caused by an underinsured motorist. Appellants brought an action against AAA asserting that they were entitled to underinsured-motorist benefits under their policy. The trial court granted summary judgment to appellee AAA, and this appeal followed. We affirm.
The crucial question in this case is whether the law of California or that of Texas should be applied in interpreting the underinsured-motorist provisions of appellants’ ^insurance policy. The Arkansas Supreme Court has long held that matters bearing upon the interpretation of a contract are to be determined by the law of the place where it is made. Howcott v. Kilboum, 44 Ark. 213 (1884). Appellants were residents of California when their automobile-insurance policy was issued in that state on March 21, 2009, under the auspices of the AAA Automobile Club of Southern California. The policy expiration date was March 21, 2010. Part IV of the insurance contract sets out the terms of the uninsured and underinsured-motorist coverage (Coverage F). The definitions section of Coverage F provides that:
Underinsured motor vehicle — means a motor vehicle which at the time of the accident is either:
(a) insured under a motor vehicle liability policy or an automobile liability insurance policy; or
(b) self-insured; or
(c) covered under a cash deposit or bond posted to satisfy a financial responsibility law;
but for an amount that is less than the limits shown in the declarations for COVERAGE F.
The policy language mirrors the definition of underinsured motor vehicle set out by the California legislature in California Insurance Code § 11580.2(p)(2) (Deering 2009). The meaning of this provision under California law is clear:
| .^Underinsurance coverage does not apply unless the tortfeasor’s vehicle is an underinsured motor vehicle. An under-insured motor vehicle, by definition, is a vehicle insured for an amount that is less than the uninsured/underinsured motorist limits carried by the injured person. Thus, if the tortfeasor is insured for an amount equal to or greater than the uninsured/underinsured limits of the injured person, that person never gets to collect any underinsurance coverage.
State Farm Mutual Automobile Insurance Co. v. Messinger, 232 Cal.App.3d 508, 283 Cal.Rptr. 493, 496 (1991).
In the present case, the tortfeasor (Adams) was insured for liability for bodily injury in the amount of $50,000 per person. The uninsured/underinsured-motorist limits of the injured persons (appellants) were likewise in the amount of $50,000 per person. The amounts being equal, appellants’ underinsured-motorist coverage under their AAA policy was, under California law, never triggered, and they are not entitled to collect any underinsurance amount from AAA. See id.
Recognizing this, appellants assert no claim under California law. Instead, they argue that the provisions of their insurance policy are governed by Texas law because they had moved to Texas three months before the wreck, as reflected on a change to the declarations page of their policy noting that their residence had changed to Houston, Texas, effective June 4, 2009, and that there would be no change to the premium. Appellant Joey Hoosier asserted that, when he went to appellee’s office and notified their insurer of their move, he was told that the policy “was converted to a Texas Policy.” The location of the branch office and the employee to whom Mr. Hoosier spoke were not identified. Appellants argue that this presented a question of material fact that precluded the grant of summary judgment, and that the trial court therefore erred by granting it.
l4Summary judgment may be granted only when there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Nationwide Mutual Fire Insurance Co. v. Citizens Bank & Trust Co., 2014 Ark. 20, 431 S.W.3d 292. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Holt Bonding Co. v. First Federal Bank, 82 Ark.App. 8, 110 S.W.3d 298 (2003). On appeal from the grant of summary judgment, we determine if there are genuine issues of material fact in dispute by viewing the evidence in the light most favorable to the party resisting the motion and resolving any doubts and inferences against the moving party. Nationwide Mutual Fire Insurance Co., supra. As to the issues of law presented, our review is de novo. Id.
Whether appellants’ move caused their California-issued insurance to be “converted to a Texas Policy” is a matter of law, not of fact, and we therefore afford no weight to the asserted hearsay statement of an unidentified branch-office employee in determining whether summary judgment was proper. Instead, we look to the insurance contract itself. Although the policy-change declarations page did reflect a change of residence by appellants, it expressly stated that “[tjhese declarations, together with the contract and the endorsements in effect, complete your policy.” The only reasonable conclusion to be drawn from this language is that the original California policy remained in effect despite appellants’ residence change.
|fiThe only reference to a change of primary residence as affecting a policy provision appears in the “Guaranteed Renewal Endorsement” in which the insurer agreed not to cancel or refuse to renew the policy, but which stated that this agreement would become void upon the occurrence of specific enumerated events, including if “[y]our primary residence is outside the state of California.” Plainly, the agreement that would become void upon such a change of residence was the agreement to guarantee renewal; with respect to the policy per se, the Guaranteed Renewal Endorsement expressly provides that “[a]ll provisions of your policy not affected by this endorsement remain unchanged.”
In the absence of any material change to the policy provisions upon appellants’ change of residence, the only remaining question is whether the change of residence from California to Texas had the legal effect of changing the state in which the insurance policy was issued. Under Arkansas law, it did not. The law of the place where the contract was made prevails. Lincoln National Life Insurance Co. v. Reed, 234 Ark. 640, 353 S.W.2d 521 (1962).
The validity, interpretation and obligation under a policy applied for, executed and delivered to the insured in one state has been held governed by the law of that state, though the insured subsequently moved elsewhere. The laws of the latter place apply only to remedy and procedure.
Id. at 643, 353 S.W.2d at 523.
Affirmed.
GLADWIN, C.J., and WALMSLEY and WOOD, JJ., agree.
HIXSON and BROWN, JJ., dissent.
. " 'Underinsured motor vehicle’ means a motor vehicle that is an insured motor vehicle but insured for an amount that is less than the uninsured motorist limits carried on the motor vehicle of the injured person.” | [
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CLIFF HOOFMAN, Justice.
| Appellant Doralee Chandler and third-party appellant Leslie Steen, in his official capacity as Clerk of the Supreme Court of Arkansas and Arkansas Court of Appeals, (collectively “appellants”) appeal from a Pulaski County Circuit Court’s order, denying Chandler’s petition for writ of mandamus and declaratory judgment and granting the third-party complaint filed by appellee the Honorable Harrison (Harry) G. Foster II (“Foster”). This court has jurisdiction of this appeal under Arkansas Supreme Court Rule 1 — 2(a)(4), as this appeal pertains to elections and election procedures. On appeal, Chandler contends that (1) the circuit court improperly determined that Foster was not “unlicensed” pursuant to Rule VII(C) of the Rules Governing Admission to the Bar (“Rule VII(C)” or “the Rule”), thereby improperly finding that he is qualified to seek the position of circuit judge despite his failure to timely pay his licensing fee four of the six consecutive years prior to the time for taking office, if elected; and (2) the circuit court improperly determined that Foster’s suspension of his license to practice law due to his failure to timely renew his fee was a violation of his due-process rights. Steen also contends on appeal that the trial court erred in declaring Rule VII(C) unconstitutional and should be reversed. We affirm the circuit court.
This case arose after Doralee Chandler, a registered voter residing in Judicial District |i>20 and a candidate for Judicial District 20, Circuit Court Division 5, filed a petition for issuance of a writ of mandamus and for declaratory judgment against Mark Martin, in his official capacity as the Secretary of State for the State of Arkansas; James Bargar, Paul Foster, and Betty Pickett, in their official capacities as the Commissioners of the Faulkner County Election Commission; LC Ratchford, Doyle Ragland, G.C. Blair, in their official capacities as the Commissioners of the Se-arcy County Election Commission; Stephen James, Jim Kirkendoll, and Bob Patterson, in their official capacities as the Commissioners of the Van Burén County Election Commission; and Foster. Subsequently, Chandler filed an amended petition for issuance of a writ of mandamus and for declaratory judgment. In this petition, she alleged that Foster’s license as an attorney in the State of Arkansas was suspended pursuant to Rule VII(C) for 77 days in 2013, from March 2 through May 17; for 64 days in 2012, from March 2 through May 4; for 64 days in 2011, from March 2 through May 4; and for 11 days in 2009, from March 2 through March 11. Therefore, she alleged that Foster was not a qualified or eligible candidate for the circuit judge position as he was not a “licensed attorney” for the constitutionally mandated six-year time period preceding the assumption of the office. As such, she prayed that the circuit court issue a declaratory judgment that Foster was unqualified and an ineligible candidate for the circuit judge position; that the circuit court issue a writ of mandamus to Martin to order him to strike and/or remove Foster from the list of ballot-eligible candidates; and that the circuit court issue a writ of mandamus to the Commissioners of the Faulkner, Searcy, and Van Burén County Boards of Election Commissioners to order them not to tabulate any votes for Foster.
IsMartin, Foster, and Faulkner County Election Commissioners James Bargar, Paul Foster, and Betty Pickett, in their official capacities, filed responses. Additionally, Foster filed a third-party complaint. In his complaint, he alleged that Rule VII(C) was unconstitutional under Article II of the Arkansas Constitution and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, because the Rule automatically suspended his license without procedural due process. Furthermore, he alleged that the letter sent by Steen prior to any suspension mentioned delinquent fees as the only consequénce for failing to pay license fees by March 1. Thus, Foster prayed for the circuit court to deny Chandler’s petition, grant his complaint, declare Rule VII(C) unconstitutional, enjoin Steen from enforcing the automatic suspension of delinquent lawyers from the practice of law, and award him attorney’s fees and costs against Chandler only.
At the hearing, Steen testified that his duties included licensing all lawyers, keeping a list of all lawyers, and collecting license fees. He testified that license fees were due by March 1st of every year, unless that date fell on a weekend, and that delinquency therefore attached on the next day. A form letter is sent out to all licensed attorneys in December, informing lawyers of the due dates for fees. This letter in the past has not included any warning that an attorney’s license is automatically suspended if fees are not paid on time. After an attorney’s license has been automatically suspended for delinquent fees, Steen testified that his office sends a form letter informing a delinquent attorney that the Rule automatically suspended the lawyer from the practice of law and includes the following additional paragraph:
Our records show that you are delinquent in paying your annual license fee, however 14there is certainly the possibility this office made a mistake in posting or receipting your dues. If you think we are in error, please contact us. Otherwise, please remit a check in the amount of $300.00 to insure your good standing.
Furthermore, Steen testified,
[ROSENZWEIG:] Okay. And there is no provision for a hearing before this letter goes out?
[STEEN:] That’s correct.
[ROSENZWEIG:] So, for instance, let’s say that someone had — hypothetically speaking, someone had mailed a check in and it somehow didn’t get there but there’s evidence of mailing, for instance, or FedExing, whatever. That person would not necessarily have an opportunity to say, “Hey, I mailed it” or “you got it” before you — before the letter goes out?
[STEEN:] No. If there’s evidence that somebody has mailed something time-iy-
[ROSENZWEIG:] Yes.
[STEEN:] — as long as the letter is postmarked by March the 1st—
[ROSENZWEIG:] Yes.
[STEEN:] — or over, I will waive the delinquent fee in that regard.
[ROSENZWEIG:] And I understand that. No. My question isn’t whether they owe the delinquent fee or not. My question is let’s say a person mails it on February 28th or 27th or FedEx-es it, but it never gets to you. I mean it just never gets to you and that person doesn’t find out that it never got to you before you send the letter out. There’s no — there’s no provision for a hearing in front of a court?
[STEEN:] There is not, no.
A running list of suspended lawyers is kept on the computer, and Steen testified that approximately 700 to 900 attorneys fail to pay their fees on time each year, which is approximately 8 to 10 percent of all licensed attorneys. Subsequently, Steen testified that, in May of each year, a list of suspended lawyers at that time is sent to all the judges in the state.
Foster also testified at the hearing. He did not contest the dates alleged in which he failed to pay his license fees on time. After the circuit court heard all motions and oral | ^arguments made by the parties, the circuit court announced its ruling, and a written order was filed on April 16, 2014. In a very detailed sixteen-page order, the circuit court found the following in relevant part:
8. Foster has been delinquent in paying the annual fee for his attorney’s license, which is due no later than March 1 of each year. He paid the annual fee, plus a $100 late penalty, on the following occasions: March 7, 2007; March 6, 2008; March 12, 2009; May 4, 2011; May 4, 2012; and May 17, 2013.
9. Pursuant to Rule VII(C) of the Rules Governing Admission to the Bar, Foster’s privilege to practice law pursuant to his law license was automatically suspended for non-payment of the annu al license fee, without prior notice to him, for the following dates: between March 2 and March 7, 2007; March 2 and March 6, 2008; March 2 and March 12, 2009; March 2 and May 4, 2011; March 2 and May 4, 2012; and March 2 and May 17, 2013.
10. Foster’s privilege to practice law pursuant to his law license was automatically reinstated after he paid his license fee and the required $100 late penalty in each instance previously mentioned.
11. Foster was not notified that his privilege to engage in the practice of law pursuant to his license was suspended in any instance before the automatic suspension mandated by Rule VII(C) went into effect.
Conclusions of Law
1. Amendment 80, Section 16(B) to the Constitution of Arkansas states the qualifications and term of office for Circuit Judges as follows: “Circuit Judges shall have been licensed attorneys of this state for at least six years immediately preceding the date of assuming office.”
2. Foster has been a licensed attorney of the state of Arkansas since 1978, and for at least six years immediately before he filed his candidacy for Circuit Judge, Twentieth Judicial District, Division 5. No evidence indicates that he has been an unlicensed lawyer at any time since he was admitted to the Arkansas Bar in 1978.
3. Rule VII(C) of the Rules Governing Admission to the Bar, which states that “[fjailure to pay the annual license fee ... shall automatically suspend the delinquent lawyer from the practice of law in Arkansas,” does not operate to de-license an attorney licensed by the Arkansas Supreme Court. As such, the automatic suspension mandated by Rule
VII(C) during the period that Foster was delinquent in paying his annual license fee did not disqualify him from seeking or holding office as a Circuit Judge for the purposes of compliance with Amendment 80, Section 16(B) to the Constitution of Arkansas. Chandler’s petition for writ of mandamus and declaratory judgment is DENIED.
|fi4. Automatic suspension of Foster’s ability to practice law pursuant to his law license during the periods that he was delinquent in pay the annual license fee, without advance notice and without affording him any pre-suspension opportunity to be heard before the suspension took effect, denied Foster due process of law in violation of the Fourteenth Amendment to the U.S. Constitution. Foster’s third-party complaint to declare Rule VII(C) of the Rules Governing Admission to the Bar unconstitutional and unenforceable is GRANTED.
7. The license to practice law in the state of Arkansas is a privilege that vests one who holds it with a property right protected by the due process provisions of the Arkansas and U.S. Constitutions. As such, suspension of an attorney’s privilege to engage in the practice of law pursuant to his license involves state action that affects important interests of the licensee in pursuing a livelihood, and cannot be validly imposed without procedural due process.
For the foregoing reasons, Chandler’s petition for writ of mandamus and for declaratory judgment is DENIED. Foster’s third-party complaint to declare Rule VII(C) unconstitutional, unenforceable, and enjoined is GRANTED.
Steen and Chandler filed notices of appeal. This case was expedited with the parties filing simultaneous briefs.
Appellant Chandler contends that the circuit court erred in determining that Foster was not “unlicensed” pursuant to Rule VII and in improperly finding that he is qualified to seek the position of circuit judge despite his failure to timely pay-;his licensing fee for four of the six consecutive years prior to the time for taking office, if elected. Chandler specifically contends that Foster is an ineligible candidate under amendment 80, section 16(B) of the Arkansas Constitution (“amendment 80”), because his license was automatically suspended pursuant to Rule VII(C). Foster and the Faulkner County Election Commission disagree. Martin filed a brief in response, but he only explained that the Secretary of State and the County Board of Election Commission are ministerial entities and do not have the power to 17exercise any discretion concerning the eligibility of a candidate. They followed the circuit court’s order and included Foster’s name on the ballot as a candidate. Because the ballots have already been printed and many absentee voters have already marked and returned their ballots with early voting having started on May 5, 2014, appellants’ available remedy is limited under these circumstances, and they request that the circuit court’s decision be upheld.
This court reviews a circuit court’s interpretation of the constitution de novo because it is for this court to determine what a constitutional provision means. Arnold v. State, 2011 Ark. 395, 884 S.W.3d 488; Stromwall v. Van Hoose, 371 Ark. 267, 272, 265 S.W.3d 93, 98 (2007). Furthermore, this court, construes a rule using the same means and canons of construction used to interpret statutes. McNabb v. State, 367 Ark. 93, 238 S.W.3d 119 (2006). Issues of statutory interpretation are reviewed de novo, and this court is not bound by the circuit court’s determination. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179. However, this court will accept a circuit court’s interpretation of the law unless it is shown that the court’s interpretation was in error. Cockrell v. Union Planters Bank, 359 Ark. 8, 194 S.W.3d 178 (2004). The basic rule of statutory construction is to give effect to the intent of the legislature. Calaway v. Practice Mgmt. Servs., Inc., 2010 Ark. 432, 2010 WL 4524659. Where the language of a statute is plain and unambiguous, this court determines legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, this court construes it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. This court construes the statute so that no word is left void, superfluous, or insignificant, and this court gives meaning and effect to every word in the | sStatute, if possible. Id. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, it is unnecessary to resort to the rules of statutory interpretation. Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009). However, this court will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Brock, supra.
Chandler maintains that the circuit court ignored the strict language of Rule VII and amendment 80. Amendment 80, section 16(B) of the Arkansas Constitution provides, “Circuit Judges shall have been licensed attorneys of this state for at least six years immediately preceding the date of assuming office. They shall serve six-year terms.” ■ Furthermore, Rule VII(C) states that a “[fjailure to pay the annual license fee provided in subsection A of this Section shall automatically suspend the delinquent lawyer from the practice of law in Arkansas.”
We addressed this same issue in Kelly v. Martin, 2014 Ark. 217, 433 S.W.3d 896, which is being handed down this same date. In Kelly, John K. Kelly challenged the Honorable Timothy Davis Fox’s eligibility to be a candidate under amendment 80 for a judicial race because Fox’s license to practice law was automatically suspended because Fox failed to timely pay his 2013 license fees pursuant to Rule VII(C). We held that under amendment 80 Fox was a “licensed attorney! ] of this state for at least six years immediately preceding the date” he would assume office because he nevertheless remained a licensed attorney during the period of his suspension and his license was not terminated. Id. In the present case, we also hold that Foster was a licensed attorney during his suspension as required by amendment 80, for the same reasons in Kelly. |;>As such, we affirm the circuit court’s denial of Chandler’s petition for writ of mandamus and declaratory judgment.
Next, appellants Chandler and Steen both contend that the circuit court improperly determined that Foster’s automatic suspension of his license to practice law due to his failure to timely pay his license fee pursuant to Rule VII(C) was a violation of his due process. Chandler argues that a law license is a privilege that Foster voluntarily gave up when he failed to pay his annual fee and that he was, therefore, not entitled to due process. Steen argues that the Rule is constitutional because this court stated in In re Lewis that “[a] member of the Bar is charged with the knowledge that failure to pay the Supreme Court license fee will result in his suspension.” 308 Ark. 610, 611, 826 S.W.2d 264, 264 (1992). Furthermore, he argues in his brief that his office sends a letter to delinquent attorneys before a list is sent to judges in the state and that “the balancing act between any embarrassment felt by the delinquent lawyer versus the interest of this Court in its superintending powers governing the Bar of this State weighs heavily in favor of the validity and constitutionality of this Rule.” Foster and the Faulkner County Election Commission disagree.
Due process requires at a minimum that a person be given notice and a reasonable opportunity for a hearing before he or she is deprived of property by state action. State of Wash. v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999). In that regard, the concept of due process requires neither an inflexible procedure universally applicable to every situation nor a technical concept with a fixed content unrelated to time, place, and circumstance. Id. Instead, what process must be afforded is determined by context, dependent upon the nature 110of the matter or interest involved. Id.
The United State Supreme Court has recognized that “the requirements of procedural due process must be met before a State can exclude a person from practicing law.” Willner v. Comm, on Character and Fitness, 373 U.S. 96, 102, 83 S.Ct. 1175,10 L.Ed.2d 224 (1963). Furthermore, in Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), this court cited with approval to the Kansas Supreme Court.
Attorneys are licensed by the state to practice their profession; but so are other professionals, such as architects, engineers, and physicians. One who practices his profession has a property interest in that pursuit which may not be taken from him or her at the whim of the government without due process.
Arnold, 806 Ark. at 801, 813 S.W.2d at 774 (quoting State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816 (1987)). This court has recognized that the practice of law is a privilege and not a right, but one cannot summarily restrict a lawyer’s ability to exercise the privilege. Donovan v. Sup. Ct. Comm, on Profl Conduct, 375 Ark. 350, 290 S.W.3d 599 (2009). Nevertheless, it is well settled that any protections to a law license are “subject to the very lowest of review under the Due Process and Equal Protections Clauses to the Constitution.” Cambiano v. Neal, 342 Ark. 691, 703, 35 S.W.3d 792, 799 (2000).
In this case, under the plain language of the Rule as interpreted above, no due process is afforded prior to a lawyer’s license being suspended. The Rule states that “[fjailure to pay the annual license fee provided in subsection A of this Section shall automatically suspend the delinquent lawyer from the practice of law in Arkansas.” Although Steen cites to this court’s statement in In re Lewis that “[a] member of the Bar is charged with the knowledge that failure |nto pay the Supreme Court license fee will result in his suspension,” the Rule does not provide a delinquent lawyer notice that he or she is in violation of the Rule before the automatic suspension. See In re Lewis, supra. In other words, a lawyer may know of the Rule but may not be aware, until it is too late, that his or her fee did not reach the clerk’s office. Additionally, we do not find any merit to Chandler’s argument that a delinquent lawyer voluntarily gave up his or her license. Under the Rule, a lawyer’s fee could theoretically get lost in the mail or even be miscredited by the clerk’s office, and a lawyer would have no notice or any opportunity to have the mistake corrected prior to the suspension, even though the mistake was made through no fault of the attorney’s own and clearly was not the product of his or her wish to “voluntarily give up” the license. Therefore, we find that Rule VII(C) is unconstitutional to the extent that it provides for an automatic suspension of a lawyer’s license without procedural due process, and we affirm the circuit court’s ruling on this issue.
112Affirmed.
Special Justices RAYMOND R. ABRAMSON, WOODY BASSETT, and TODD TURNER join in this opinion.
HART, J., concurs in part and dissents in part.
CORBIN, J., dissents.
DANIELSON, BAKER, and GOODSON, JJ., not participating.
. The dissent by Justice Corbin raises three arguments in concluding that the majority errs in holding that Rule VII(C) is unconstitutional to the extent that it provides for an automatic suspension of a lawyer’s license without procedural due process. First, the dissent sua sponte argues that Foster lacks standing. However, this issue was not raised below nor on appeal, and we have repeatedly held that standing is not a question of subject-matter jurisdiction. Chubb Lloyds Ins. Co. v. Miller Cnty. Cir. Ct., 2010 Ark. 119, 361 S.W.3d 809; Foremost Ins. Co. v. Miller Cnty. Cir. Ct., 2010 Ark. 116, 361 S.W.3d 805; Muc-cio v. Hunt, 2014 Ark. 35. Furthermore, even if the parties had raised this argument to the circuit court, any "[arguments made below but not argued on appeal are deemed to be abandoned.” Vibo Corp. v. State ex rel. McDaniel, 2011 Ark. 124, 380 S.W.3d 411. Second, the dissent sua sponte argues that we should have considered whether "Foster's right to run for or hold public office is a protected right or privilege” rather than "Foster’s right or privilege to practice law.” The dissent even admits that the circuit court did not consider this issue, and [i]t is well-settled that this court will not address an argument raised for the first time on appeal, even a constitutional argument.” Brown v. Kelton, 2011 Ark. 93, at 8, 380 S.W.3d 361, 366. Furthermore, the third-party complaint specifically alleged that ”[p]rior to having the privilege to practice law taken, the Plaintiff under the Arkansas Constitution Section 2 and The Fourteenth Amendment to the United States Constitution was entitled to notice, an opportunity to be heard, an opportunity to confront adverse witnesses and a hearing before an impartial decision maker." Finally, the dissent raises the argument that pre-depri-vation notice and opportunity have not always been required and that "prompt post-deprivation review to correct administrative error can satisfy minimal due-process concerns,” citing to Miller v. Ark. Dep’t of Fin. & Admin., 2012 Ark. 165, 401 S.W.3d 466. However, Rule VII(C) fails to provide for either a pre- or post-deprivation opportunity for a hearing and therefore fails to satisfy minimum due process to the extent that a lawyer’s license is automatically suspended.
In her dissent, we also find that Justice Hart errs in finding that the due-process issue raised in Foster’s third-party complaint is moot. However, even if the mootness doctrine did apply under these circumstances, all of this court’s recognized exceptions to the mootness doctrine apply here. | [
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KAREN R. BAKER, Justice.
11 On June 16, 2005, a Pulaski County jury convicted appellant, Robert Leander Stiggers, of first-degree murder and first-degree battery. He was sentenced to forty years imprisonment for the murder conviction and twenty years imprisonment for the battery conviction with the sentences to run consecutively. Stiggers’s convictions and sentences were affirmed in Stiggers v. State, CACR05-1399, 2006 WL 1479890 (Ark.App. May 31, 2006) (unpublished).
Stiggers’s convictions and sentences stem from a January 10, 2003 shooting that occurred in the Hollingsworth Courts neighborhood in Little Rock. Raynaud Muldrew and War dell Newsome were both shot. Muldrew was found in a vehicle, and Newsome was lying near it. Muldrew died as a result of his injuries. Despite being shot in the back of the head, New-some survived his injuries. Immediately after the shooting and at trial, Newsome identified Stiggers as the shooter. The relevant facts, as recounted by the court of appeals in Stiggers’s direct appeal are as follows:
[pSergeant Sidney Allen ... discovered Wardell Newsome lying on the ground near the vehicle. He had been shot four times in the right shoulder and once behind his right ear. While at the scene, Newsome told Sgt. Allen that [Stiggers] was the person who shot him.
... Detectives Eric Knowles and Keith Cockrell questioned Newsome about the incident while he was undergoing treatment at UAMS. Newsome explained that he had borrowed a friend’s car earlier in the evening and picked up Muldrew. He told the detectives that Muldrew had purchased marijuana and then the two of them went to a liquor store to purchase cigarettes and a couple of Swisher cigars. While there, they saw [Stiggers] who asked for a ride to Hollingsworth Courts. [Stiggers] was riding directly behind Newsome in the back seat of the car, and during the ride, [Stiggers] apparently became aggressive and started yelling. Newsome stated that, at one point, he turned around and noticed that [Stiggers] was holding a small handgun. While following [Stig-gers’s] directions into the Hollingsworth Courts neighborhood, Newsome testified that [Stiggers] told them to “say goodnight” and “say your prayers” because he was going to kill them. Newsome indicated that he did not think [Stiggers] was serious because they had known each other and been friends for years.
Newsome explained that, as he pulled into an alley in the residential complex at [Stiggers]’s request, [Stiggers] shot him behind the right ear. He pointed out that he lost consciousness immediately, and when he regained consciousness, he noticed Muldrew slumped over in the front passenger seat. Newsome explained that he then crawled. out of the vehicle to look for help, and a neighbor called the police. Newsome recognized [Stiggers]’s picture in a group of photos presented by Detectives Knowles and Cockrell, and he again identified him as the shooter.
Stiggers, CACR05-1399, slip op. at 1, 2006 WL 1479890.
After the court of appeals issued its mandate, on August 20, 2006, Stiggers filed his initial Rule 87.1 petition in Pulaski County Circuit Court. After several continuances due to issues related to Stig-gers’s representation, on July 2, 2012, Stiggers filed an amended petition and the circuit court held a hearing that same day. On November 16, 2012, the circuit court denied Stiggers’s petition. Stiggers now brings this appeal and presents one issue for review: the circuit court erred by denying Stiggers’s Rule 37.1 petition because Stiggers received unconstitutional ineffective assistance of counsel when his counsel failed to interview Rand call certain witnesses.
“On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this court will not reverse the circuit court’s decision granting or denying post-conviction relief unless it is clearly erroneous. E.g., Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. 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., 402 S.W.3d at 74.” Mason v. State, 2013 Ark. 492, at 1-2, 430 S.W.3d 759, 761.
Our standard of review requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Claims of ineffective assistance of counsel are reviewed under the following standard:
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.
Burton v. State, 367 Ark. 109, 111, 238 S.W.3d 111, 113 (2006) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).
The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The petitioner claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying |4the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. See id. Therefore, Stiggers must first show that counsel’s performance fell below an objective standard of reasonableness and then that counsel’s errors actually had an adverse effect on the defense. Id. Stig-gers must satisfy both prongs of the test, and it is not necessary to determine whether counsel was deficient if Stiggers fails to demonstrate prejudice as to an alleged error. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam).
Further, with respect to an ineffective-assistance-of-counsel claim regarding the decision of trial counsel to call a witness, such matters are generally trial strategy and outside the purview of Rule 37.1. Banks v. State, 2013 Ark. 147. Where a petitioner alleges ineffective assistance of counsel concerning the failure to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Moten v. State, 2013 Ark. 503, 2013 WL 6327549 (per curiam); Stevenson v. State, 2013 Ark. 302, 2013 WL 3946082 (per curiam) (citing Hogan v. State, 2013 Ark. 223, 2013 WL 2295431 (per curiam)). In order to demonstrate prejudice, the petitioner is required to establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. See Carter v. State, 2010 Ark. 231, 364 S.W.3d 46 (per curiam). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment. Id. Finally, “[w]hen assessing an attorney’s decision not to call a particular witness, it must be taken into account [ sthat the decision is largely a matter of professional judgment which experienced advocates could endlessly debate, and the fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Huls v. State, [301 Ark. 572, 785 S.W.2d 467 (1990)]; Du mond v. State, 294 Ark. 879, 743 S.W.2d 779 (1988).” Johnson v. State, 325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996).
We now turn to the sole issue raised by Stiggers. Stiggers’s allegation of ineffective assistance of counsel is that his trial counsel failed to interview four potential witnesses in preparation for Stiggers’s defense or call them as a witness at trial: Eddie Pride, Temika Donley, Kristopher Johnson, and Damika Mitchell. Stiggers contends that these witnesses would have supported his argument that another person, a person named “Jason,” was the shooter. He further asserts that the witnesses’ testimony was admissible under hearsay exceptions but that his trial counsel did not interview or call the witnesses at trial to determine what exceptions applied. Stiggers asserts that the witnesses’s testimony would have impeached the State’s witness. Finally, Stiggers asserts that he was prejudiced by his defense counsel’s failure to call these witnesses.
Stiggers’s theory at trial was as follows: while he was purchasing drugs from the two victims, two unnamed men came up to the vehicle and shot the victims. Stiggers testified at trial that the two men approached the vehicle and let Stiggers run away prior to the shooting, and that as he was running away he heard the gunshots. In sum, Stiggers’s theory of the case was that someone else was the shooter.
Prior to trial, on April 8, 2005, the circuit court conducted a pretrial hearing. The State made a Zinger motion to prohibit Stiggers from eliciting testimony from witnesses regarding “Jason” because the testimony was inadmissible hearsay. The circuit court granted the motion. Stiggers acquiesced to the circuit court’s ruling and agreed that the “Jason” testimony was hearsay, but explained that there could be a chain of events in the testimony where Stiggers could elicit such testimony. Stig-gers complied with the circuit court’s ruling but reserved the right to approach the bench if such circumstances arose. At trial, defense counsel did not call Pride, Mitchell, Donley, or Johnson as witnesses.
In his petition, Stiggers asserted that counsel was ineffective for not interviewing or calling the four witnesses, three of which he alleges would have provided “Jason” testimony. |fiAt the postconviction hearing, Stiggers introduced statements from two of the “Jason” witnesses: Donley and Johnson. The third “Jason” witness, Pride, also provided a statement; however, the circuit court did not accept Pride’s statement because Pride was not known at trial, there was no statement in the case file, and Pride had not testified at a previ ous hearing. Stiggers did not introduce a statement from Mitchell. At the Rule 37 hearing, defense counsel testified that he did not recall interviewing the four witnesses and did not call them as witnesses.
Stiggers first asserts that Eddie Pride would have testified that Newsome told Pride that Stiggers was not the shooter but that it was “Jason.” Second, Stiggers asserts that Donley, Muldrew’s girlfriend, would have testified that Muldrew told her that “Jason” had threatened to kill Mul-drew, Muldrew’s child, and the child’s mother. Third, Stiggers asserts that Johnson would have testified that “Jason” had threatened to kill Muldrew. He contends that Johnson would have testified that he overheard Muldrew on the phone with “Jason” four or five days before the shooting, and heard “Jason” discussing a “bad drug deal” or “theft of drugs” involving “Jason’s” drugs, and threatening to kill Muldrew and others. Fourth, Stiggers contends that Mitchell would have testified that she saw both victims prior to the shooting and that the vehicle’s lights were off, which was contrary to the State’s witness’s testimony.
First, with regard to Pride, although Stiggers testified that he informed his counsel about Pride, defense counsel testified that prior to trial he had likely heard Pride’s name, but did not recall knowledge of Pride’s allegations that Newsome had told Pride that Stiggers was not the shooter. Defense counsel further testified that,
17that certainly would have been something ... very important.... I don’t recall that ever being told to me. If I had been given that information, that would certainly would have been the diligent thing to do, to look for Mr. Pride. I would say if I had recognized that there was possibly a prior statement out there saying that someone else had done it coming from a living witness, I would have absolutely asked him about it.
With regard to Donley and Johnson, defense counsel testified that after reviewing Donley and Johnson’s police statements in the file, he considered both witnesses’s testimony to be in the group of people he categorized as Zinger witnesses and concluded that their testimony would have been inadmissible hearsay. Defense counsel said “My analysis was that it didn’t come in because of Zinger and there were hearsay issues obviously, but beyond that, even beyond the hearsay, the Zinger issue kept it out.”
Finally, with regard to Mitchell’s testimony, defense counsel testified that although he could “see there was some argument” that Mitchell’s testimony regarding the lights in the car being off at the time of the shooting would have helped Stig-gers, he did not recall interviewing Mitchell or making a strategic decision to not interview her. Defense counsel testified that he cross-examined every witness that came near the vehicle regarding the facets of the vehicle, including the surviving witness, Newsome. Defense counsel further testified that there “was a huge amount of discrepancies” in the testimony from witnesses regarding whether the lights were on or off and that he cross-examined every witness.
Here, Stiggers fails to substantiate his claim that counsel was ineffective based on the failure to interview or call the “Jason” witnesses. Stiggers has failed to meet his burden under the first prong of Strickland because he has not demonstrated that his counsel’s performance fell below an objective standard of reasonableness. Additionally, Stiggers has failed to demonstrate [ sthat the “Jason” testimony would have been admissible hearsay and makes conclusory allegations that it may have fit under an exception to hearsay. Further, the record supports that defense counsel’s decision to not interview or call the witnesses was based on reasonable professional judgment. The testimony was inadmissible pursuant to Zinger, as it did no more than create an inference or conjecture as to “Jason’s” involvement, the testimony was hearsay, and Stiggers failed to demonstrate that it was admissible. Nor has Stiggers met the second prong under Strickland because he has failed to demonstrate that he was prejudiced by defense counsel’s failure to interview the witnesses. Stiggers must do more than allege prejudice; he must demonstrate it with facts. Walton v. State, 2018 Ark. 254, 2013 WL 2460191 (per curiam). Here, Stiggers provides no evidence that he suffered any prejudice as a result of counsel’s failure to call the “Jason” witnesses. We find no merit in Stiggers’s claim regarding Pride, Donley, or Johnson.
Finally, with regard to Mitchell’s testimony, as discussed above, our law requires that Stiggers name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Moten v. State, supra. The objective in reviewing an assertion of ineffective assistance of counsel concerning the failure to call certain witnesses is to determine whether this failure resulted in actual prejudice that denied the petitioner a fair trial. Woody v. State, 2009 Ark. 413, 2009 WL 2971758 (per curiam). In order to demonstrate prejudice, Stiggers must establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. Id.
While Stiggers claims that Mitchell’s testimony regarding the vehicle would have discredited Newsome’s testimony, defense counsel testified that he cross-examined every lflwitness that came into contact with the vehicle. Based on the record, we are not persuaded that had defense counsel interviewed and called Mitchell as a witness regarding the lights of the car, the outcome of the trial would have been different.
Stiggers simply did not provide any support for his conclusory claims that counsel was ineffective and made no showing that counsel committed any specific error that prejudiced the defense. See Johnson v. State, 325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996) (“[T]he fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness.”). In reviewing the record before us, we conclude that Stiggers has not met his burden.
Based on the discussion above, we do not find that the circuit court erred.
Affirmed.
. The record does not reflect Jason’s last name.
. A Zinger motion refers to Zinger v. State, 313 Ark. 70, 75-76, 852 S.W.2d 320, 323 (1993), where we held that the standard for admissibility of evidence tending to incriminate other persons in the crime being charged is as follows:
A defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but such evidence is inadmissible unless it points directly to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another’s guilt is inadmissible.
[T]he rule does not require that any evidence, however remote, must be admitted to show a third party’s possible culpability-[EJvidence of mere motive or oppor-
tunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.
Id. (quoting State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988) and People v. Kaurish, 52 Cal.3d 648, 276 Cal.Rptr. 788, 802 P.2d 278 (1990)). | [
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CLIFF HOOFMAN, Judge
| Appellant Joshua Yarbrough appeals from the order of the Johnson County Circuit Court terminating his parental rights to his three children, N.Y. (DOB 8/9/09), D.Y. (DOB 03/21/11), and J.Y. (DOB 04/17/13). On appeal, Joshua challenges the sufficiency of the evidence to support the termination, arguing that there was no evidence that the Arkansas Department of Human Services (DHS) offered appropriate family services in a timely fashion. We affirm.
The facts giving rise to this ease began on November 20, 2013, when DHS received a call from N.Y.’s daycare center with concerns that the child’s mother, Candace Yarbrough, was under the influence of an unknown substance. Candace' admitted that she would fail a drug test, and DHS placed a seventy-two-hour hold on the children. Both Candace and |⅞Joshua tested positive for methamphetamine, amphetamine, marijuana, and opiates. DHS filed a petition for emergency custody on November 22,2013.
An order for emergency custody was entered by the circuit court on November 22, 2013, and a probable-cause order was entered on December 17, 2013. The circuit court ordered Joshua to undergo random drug testing, obtain a drug-and-alcohol assessment and complete all recommendations, attend and complete parenting classes, and obtain and maintain stable housing and employment. Supervised visitation was awarded contingent upon the parents’ negative drug screens.
The adjudication hearing was held on January 7, 2014, and the circuit court found that the children were dependent-neglected based on inadequate supervision due to the Yarbroughs’ drug use. The goal of the case was set as reunification with the parents. At a review hearing in March 2014, Joshua was ordered to attend inpatient drug treatment, and the Yarbroughs were ordered to attend marriage counseling.
Following a June 2014 review hearing, a trial home visit with the children was authorized, and custody was then returned to the Yarbroughs at the August 2014 review hearing. Both parents were ordered to submit to homemaker services. On September 15, 2014, DHS filed an ex parte motion for an emergency change of custody, alleging that Candace was suffering from a delusional mental state, that Joshua was not concerned about her mental state, and that he was unable to ensure. the health and safety of the children. An order granting an emergency change of custody was entered the same day; however, the circuit court returned the children at the probable-cause hearing on October 7, 2014, finding | sthat the emergency conditions necessitating removal no longer existed.
The children were again removed from the Yarbroughs’ custody at the next review hearing on December 16, 2014, because they had both failed hair-follicle drug tests, and would not allow DHS into their home. Joshua was ordered to attend and successfully complete outpatient drug treatment.
A permanency-planning hearing was held in March 2015, and the circuit court continued the goal of reunification with the parents, because it found that DHS had not provided outpatient drug treatment to Joshua as it had previously been ordered to do. The court stated that the issue of reasonable efforts by DHS would be taken under advisement and would be addressed at the next hearing.
At the next review hearing in September 2015, the circuit court found that DHS had made reasonable efforts to provide services to the Yarbroughs to achieve the goal of reunification. The court noted that Joshua was now incarcerated and ordered that he take advantage of the services offered while he was in prison, including substance-abuse treatment. A second permanency-planning order was entered on November 3, 2015, and the goal of the case was changed to adoption, with DHS being authorized to proceed with termination of parental rights. The circuit court again noted in that order that the issue of reasonable efforts by DHS would be taken under advisement and addressed at the next hearing.
A petition for termination of parental rights was filed on November 17, 2015. DHS alleged several grounds for termination, including the failure-to-remedy ground found in Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2015) and the subsequent-factors ground found | Jn Ark. Code Ann. § 9-27-341(b)(3)(B)(vii). The petition further alleged that termination was in the children’s best interest.
The termination hearing was held on February 2, 2016. At the hearing, Susan Geels, the caseworker assigned to the family, testified that DHS had provided services to the parents to accomplish the goal of reunification. Geels stated that Joshua had completed parenting classes and inpatient drug treatment in May 2014. However, he then failed his hair-follicle drug test in November 2014 and was ordered to complete outpatient drug treatment, which he had not done. Geels stated that Joshua had moved out of the family home in January 2015 and that he had relocated first to Ozark, Arkansas, and then to Missouri. She indicated that he had not maintained a stable home during that time and that he had been convicted of delivery of methamphetamine in August 2015. Geels testified that Joshua was currently in a prison boot camp while incarcerated and that he had obtained his GED and had completed a substance-abuse program. She stated that his release date was in June 2016. Accords ing to Geels, DHS believed that it was in the children’s best interest for parental rights to be terminated. She testified that the likelihood of adoption was high because the children’s current foster parents, who were Joshua’s relatives, were interested in adopting all three of them.
Joshua testified that he was currently serving a forty-two-month prison sentence, to be followed by a seventy-two-month suspended imposition of sentence, and that he was involved in a boot-camp program. If he successfully completed that program, Joshua indicated that he could be released as early as March 2016. He testified that he had obtained 1 ¿his GED and had attended substance-abuse education as part of the boot camp. Joshua indicated that he and Candace were still married but-that he was working on getting a divorce. Upon his release from prison, Joshua stated that he was planning to reside with his girlfriend and that her brother had arranged a job for him. He acknowledged that the DHS case had been going on for a long while but asked the circuit court for more time to reunify with his children.
After hearing all of the evidence, the circuit court entered a termination order on February 10, 2016, finding that the subsequent-factors ground for termination had -been proved by clear and convincing evidence. Specifically, the court found that Joshua had been arrested on drug charges nearly two years into the case and that he was currently serving a forty-two-month prison sentence. The circuit court noted that, prior to his incarceration, Joshua did not have stable housing or employment; after his release from prison, Joshua’s plan was to live with his girlfriend and to obtain a job through his girlfriend’s brother, which the court found was also not a stable situation. The court further noted that the two - youngest children had spent more than half of their lives in foster care. The court also found that there was clear and convincing evidence that termination of Joshua’s parental rights was in the best interest of the children based on the likelihood that they would be adopted and the potential harm to their health and safety if they were to be returned to his custody. Joshua timely appealed from the termination order.
A circuit court’s order terminating parental rights must be based on findings proved by clear and convincing evidence. Ark. Code Ann. § 9—27—341(b)(3); Contreras v. Ark. Dep’t of Human Servs., 2015 Ark. App. 604, 474 S.W.3d 510. Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Contreras, supra. On appeal,, the appellate court will not reverse the trial 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. Id. In. determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the trial court to judge the credibility of witnesses. Id.
Pursuant to Ark. Code Ann. § 9-27-341(b)(3)(A), an order terminating parental rights shall be based on a finding by clear and convincing evidence that 'it is in the best interest of the juvenile, including consideration of the likelihood of adoption and the potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent. The order terminating parental rights also must be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-341(b)(3)(B).
The sole ground relied on by the circuit court in this case was the subsequent-factors ground in Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a/), which states as follows:
That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent.
Joshua argues on appeal that the circuit court erred in terminating his parental rights |7because there was no evidence that DHS offered “appropriate family services” in a timely fashion, which he contends is a necessary element of the subsequent-factors ground. He does not otherwise challenge the sufficiency of the evidence supporting this ground for termination, nor does he challenge the circuit court’s best-interest finding. Thus, we need not consider those issues. Benedict v. Ark. Dep’t of Human Servs., 96 Ark. App. 395, 242 S.W13d 305 (2006).
In support of his argument, Joshua points to the March 2015 permanency-planning order in which the circuit court found that DHS had not provided the necessary services because it had not obtained outpatient drug treatment for him as ordered at the December 2014 review hearing. While he recognizes that the circuit court subsequently found at the September 2015 hearing that DHS had made reasonable efforts, he further references the circuit court’s second permanency-planning order in November 2015 wherein the court again stated that it was taking the issue of DHS’s reasonable efforts under advisement to be addressed at the next hearing. Joshua contends that there was no testimony by Geels that this drug treatment was ever offered to him, and he argues that, had DHS complied with its requirement to provide this treatment, it is reasonable to conclude that he would not have later -been arrested for delivery of methamphetamine.
We find that Joshua has waived his argument that DHS failed to offer him appropriate services. While the circuit court did state in its March 2015 order that DHS had failed to offer outpatient drug treatment to Joshua, it then found at the next hearing that DHS had made reasonable efforts to provide services. Also, although the circuit court reserved ruling |son the issue of services at the second permanency-planning hearing in November 2015, it then found that appropriate services had been provided by concluding that the subsequent-factors ground had been proved. Joshua did not .appeal from the circuit court’s previous findings that DHS had made reasonable efforts, nor did he raise this issue at the termination hearing. We have repeatedly held that the failure to appeal .from a circuit court’s prior meaningful-efforts findings precludes us from reviewing those - adverse rulings. See, e.g., Contreras, supra; Brumley v. Ark. Dep’t of Human Servs., 2015 Ark. App. 90, 455 S.W.3d 347; Weathers v. Ark. Dep’t of Human Servs., 2014 Ark. App. 142, 433 S.W.3d 271; Anderson v. Ark. Dep’t of Human Servs., 2011 Ark. App. 526, 385 S.W.3d 373; Fredrick v. Ark. Dep’t of Human Servs., 2010 Ark. App. 104, 377 S.W.3d 306.
Joshua argues that he did not have the opportunity to challenge the circuit court’s previous findings because the orders were not final and appealable. He.also cites to Henson v. Arkansas Department of Human Services, 2014 Ark. App. 225, 434 S.W.3d 371, in which this court held that the appellant’s challenge to a prior finding of aggravated circumstances was not barred on appeal because the previous no-reunificatiori order was not a final, appeal-able order. Básed on Henson, Joshua contends that DHS was required to prove by clear and convincing evidence at the termination hearing that its efforts were meaningful.
We previously rejected a similar argument in Contreras, supra, where we held that Henson did not place any affirmative duty on DHS to reprove factual findings made by the circuit court in earlier orders. We further noted that the appellant in that case had an opportunity to object to DHS’s failure to provide services at the termination hearing- but that-13he had failed to do so. Contreras, 2015 Ark. App. 604, at 8-9, 474 S.W.3d at 515-16. In this case, Joshua also had the opportunity at the termination hearing to raise the issue of whether DHS had provided appropriate services, but he did not do so. Instead, as in Contreras, he merely requested that the circuit court give him more time to reunify with his children. Thus, Joshua has waived the issue of whether appropriate services were provided to him.
Furthermore, Joshua has failed to specify which particular services should have been provided to him by DHS, other than the outpatient drug treatment. According to Geels’s. testimony, Joshua was ordered to undergo outpatient drug treatment in December 2014, but he moved out of the family home in January 2015, first relocating to Ozark and then to Missouri. He was subsequently arrested in July 2015 on the methamphetamine charges, and he remained incarcerated throughout the remainder of the case. At the September 2015 review hearing, Joshua was ordered to participate in any programs, such as drug treatment, that were offered in prison. He does not identify any other services that DHS could have, or should have, offered him while he was incarcerated. Thus, the circuit court’s finding that appropriate services were provided to Joshua was not clearly erroneous, and we affirm the termination of Joshua’s parental rights.
Affirmed.
Gruber and Whiteaker, JJ., agree.
. The circuit court’s order also terminated the parental rights of the children’s mother, Candace Yarbrough, but she is not a party to this appeal. | [
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JOSEPHINE LINKER HART, Justice.
11 John K. Kelly appeals from the Pulaski County Circuit Court’s order finding that Judge Timothy D. Fox was eligible “to be a candidate for the position of Circuit Judge, Judicial District 06, Division 6, Sub-district 6.2, in the election for said judgeship scheduled to be conducted on May 20, 2014.” Specifically, Kelly asserts that Judge Fox was delinquent in the payment of his 2013 annual license fee from March 2 until April 16, 2013. Kelly concludes that because he was delinquent for that period of time, he was not a “licensed attorney” for the six years immediately preceding the date of assuming office, as mandated by amendment 80 to the Arkansas Constitution. Kelly concludes that Judge Fox thus is ineligible to be a candidate. This case was expedited, and the parties were ordered to file simultaneous briefs. The State filed an amicus curiae brief. We may hear this case because it is an appeal pertaining to elections and election procedure. Ark. Sup.Ct. R. 1 — 2(a)(4) (2014). We affirm.
Election proceedings are governed by statute. Zolliecoffer v. Post, 371 Ark. 263, 264, 265 S.W.3d 114, 116 (2007). The two types of election proceedings provided for by statute are pre-election-eligi-bility challenges and post-election, election contests. Id., 265 S.W.3d at 116. A party challenging a candidate’s eligibility to stand for election must bring a pre-election challenge by way of a petition for writ of mandamus and declaratory judgment. Id. at 265, 265 |2S.W.3d at 116. Our statute on pre-election-eligibility challenges provides in part that “[n]o person’s name shall be placed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible at the time of filing, or as otherwise may be provided by law, as a candidate for the office to hold the public office for which he or she is a candidate.” Ark. Code Ann. § 7-5-207(b) (Supp.2013).
Kelly petitioned the circuit court for issuance of a writ of mandamus and for declaratory judgment. Observing that section 16(B) of amendment 80 to the Arkansas Constitution requires that circuit judges “shall have been licensed attorneys of this state for at least six years immediately preceding the date of assuming office,” Kelly asserted that Judge Fox is a candidate for the position of Pulaski County circuit judge, and that the elected candidate for this position would assume office on or about January 1, 2015. Kelly argued that to satisfy section 16(B) of amendment 80, a candidate for the position of circuit judge must have been a licensed attorney in this state since at least January 1, 2009. Kelly alleged that Judge Fox failed to pay his annual license fee, which was due March 1, 2013. Kelly further alleged that Judge Fox’s “license as an attorney in the state of Arkansas was suspended for the period of time between March 2, 2013, and April 16, 2013.” Kelly argued that “[d]ur-ing the period of time” that Judge Fox “was suspended, he was not a ‘licensed attorney,’ ” and thus he was not a licensed attorney for the constitutionally mandated six-year period immediately preceding the date of assuming office. Kelly concluded that because Judge Fox is not a qualified or eligible candidate for the position of circuit judge, his name could not be included on the ballot for this office. Kelly asked the circuit court to issue a declaratory judgment |3finding that Judge Fox was unqualified and ineligible for the position and to issue writs of mandamus ordering the Arkansas Secretary of State and the Commissioners of the Pulaski County Election Commission and the Perry County Election Commission not to include Judge Fox on any ballot as a candidate for circuit judge.
At the hearing on the matter, the evidence established that Judge Fox, who was admitted to the bar in 1981, is currently serving his last year of a six-year term as a circuit judge. Further, to continue to maintain his judicial position, Judge Fox must stand for election in the May 2014 primary. If elected, his term of office 'will begin in January 2015. The evidence also established that Judge Fox’s annual license fee was due March 1, 2013, and that he paid the $200 fee along with a $100 late fee on April 16, 2013.
In its oral ruling, the circuit court found that the evidence established that Judge Fox had been delinquent on his annual license fee. The court found that though Judge Fox had been suspended, this did not constitute a revocation or termination of his license. In its written order, the circuit court found that Fox was an eligible candidate. Kelly appeals from that decision.
Amendment 80, section 16(B) of the Arkansas Constitution, which was adopted by the voters of this state at the November 2000 general election, and which became effective July 1, 2001, provides that circuit judges “shall have been licensed attorneys of this state for at least six years immediately preceding the date of assuming office.” The question presented to this court is the interpretation of the word “licensed” in amendment 80. When interpreting the Arkansas Constitution, we read it as written, and language that is plain and unambiguous is |4to be given its obvious and common meaning. City of Fayetteville v. Washington Cnty., 369 Ark. 455, 468, 255 S.W.3d 844, 853-54 (2007).
Amendment 28 to the Arkansas Constitution provides that the “Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.” The language of amendment 28 “is mandatory, affirmatively imposing upon this Court the duty of making and enforcing rules governing the practice of law and the conduct of lawyers.” In re Sup. Ct. License Fees, 251 Ark. 800, 801, 483 S.W.2d 174, 175 (1972). The Arkansas Constitution must be considered as a whole, and to understand the meaning of any part of it, we must read it in the light of other provisions relating to the same subject matter. Wells v. Riviere, 269 Ark. 156, 165, 599 S.W.2d 375, 379 (1980). Thus, we may determine what it means to be “licensed” under section 16(B) of amendment 80 by considering amendment 28 and the constitutionally mandated rules this court adopted to regulate the practice of law and the professional conduct of attorneys at law.
When this court construes the meaning and effect of a court rule, we use the rules of statutory construction and construe the rule just as it reads, giving the words their ordinary and usually accepted meaning in common language. Richard v. Union Pac. R.R. Co., 2012 Ark. 129, at 4-5, 388 S.W.3d 422, 425. The rules relevant to our discussion of the meaning of the word “licensed” have essentially remained unchanged since the passage of amendment 80. Rule VII of the Rules Governing Admission to the Bar provides that an “annual license fee ... shall be imposed upon each attorney actively licensed to practice law in this State.” Ark. Bar Adm. R. VTI(A) (2013). Further, the rule provides that “[f]ailure to pay the annual | Jicense fee provided in subsection A of this Section shall automatically suspend the delinquent lawyer from the practice of law in Arkansas.” Ark. Bar Adm. R. VII(C). That rule also provides that “[w]here the delinquency is for three years or less, reinstatement may be had by the payment of all such delinquent dues, and a penalty.” Ark. Bar Adm. R. VII(C)(2). Further, the rule provides that “[i]t shall be the duty of the Clerk to maintain a public record of licensed attorneys in the state of Arkansas and a list of all attorneys no longer licensed and the reason therefore, e.g., deceased, suspended, disbarred, surrender of license, inac tive, delinquency of fee, disabled or retired.” Ark. Bar Adm. R. VII(E).
The term “suspension” as it relates to the automatic suspension of a delinquent lawyer from the practice of law in Arkansas for failure to pay the annual license fee was not defined in Rule VII. The plain language of the rule itself indicates that the “suspension” is from the “practice of law.” This court has issued a separate set of rules, the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law. Therein are defined the types of sanctions available to address misconduct, including definitions of “disbarment” and “suspension.” “Disbarment” is defined as the “termination of the lawyer’s privilege to practice law and removal of the lawyer’s name from the list of licensed attorneys.” Ark. Sup.Ct. P. Regulating Profl Conduct § 17(D)(1) (2013). Further, “suspension” is defined as a “limitation for a fixed period of time on the lawyer’s privilege to engage in the practice of law.” Ark. Sup. Ct. P. Regulating Profl Conduct § 17(D)(2). One rule of statutory construction is that all acts passed upon the same subject are in pari materia, and must be taken and construed together. Salley v. Cent. Ark. Transit Auth., 326 Ark. 804, 806, 934 S.W.2d 510, 511 (1996). Thus, we may apply the definition of “suspension” found in section 17 to Rule VII, as these are both rules of this court “regulating the practice of law and the professional conduct of attorneys at law” as provided in amendment 28.
According to these definitions, a “disbarment” terminates the lawyer’s privilege to practice law and results in the removal of the lawyer’s name from the list of licensed attorneys, while a “suspension” constitutes a lesser sanction that only limits the lawyer’s privilege to engage in the practice of law. Rule VII provides that “[f]ailure to pay the annual license fee ... shall automatically suspend the delinquent lawyer from the practice of law in Arkansas.” A “suspension” for failure to pay the annual license fee limits the lawyer’s privilege to engage in the practice of law. Contrasting the definitions of “suspension” and “disbarment,” a lawyer under suspension remains licensed, because that license has not been terminated and has not resulted in the removal of the lawyer’s name from the list of licensed attorneys; it is only the lawyer’s privilege to engage in the practice of law that is limited. Thus, under amendment 80, a lawyer who is suspended for failure to pay the annual license fee continues to be a “licensed” attorney.
Furthermore, this distinction between a licensed attorney and the practice of law may be found in amendment 80 itself. As noted above, under section 16(B) of the Arkansas 17Constitution, circuit judges “shall have been licensed attorneys of this state for at least six years immediately preceding the date of assuming office.” Section 14 provides in part that “Justices and Judges, except District Judges, shall not practice law during their respective terms of office.” Thus, while amendment 80 requires circuit judges to be licensed, that requirement is distinguished from the practice of law.
Kelly notes that, under Rule YII(C)(2), “reinstatement may be had by the payment of all such delinquent dues, and a penalty.” He urges that the word “reinstatement” compels the conclusion that an attorney’s license is being reinstated; therefore, the license was lost. We disagree, as a fair reading of Rule VII indicates that the “reinstatement” is in the form of reinstating the delinquent attorney’s privilege to practice law. In fact, the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law make a distinction between “reinstatement” that follows “any period of suspension from the practice of law,” and “readmission” that follows “disbarment.” Ark. Sup.Ct. P. Regulating Profl Conduct §§ 28, 24. Kelly asserts that the only privilege an attorney receives by being licensed is the ability to practice law, and if that ability is suspended, the attorney does not have a license. However, as these rules show, an attorney who has been suspended from the practice of law may be reinstated, while an attorney who has been disbarred cannot. This distinction Lshows that even if the attorney has been suspended from the practice of law, the license retains a privilege.
We are not unmindful that Rule VII(E) instructs the clerk to maintain a “list of all attorneys no longer licensed and the reason therefore, e.g., deceased, suspended, disbarred, surrender of license, inactive, delinquency of fee, disabled or retired.” It may be suggested that this provision demonstrates that a “suspended” attorney is “no longer licensed.” This interpretation, however, demands too much from this subsection. Rather, the point of maintaining the public record is to provide for the public a list of attorneys, whether they be deceased, suspended, disbarred, license surrendered, inactive, delinquent payment of fee, disabled, or retired, who no longer practice law and the reason therefore. We observe that upon the transfer to inactive status, the attorney is not “entitled to practice in Arkansas.” Ark. Sup.Ct. P. Regulating Profl Conduct § 25(F). The attorney may be reinstated “to active status upon a showing that any disability has been removed and the attorney is fit to resume the practice of law.” Ark. Sup.Ct. P. Regulating Profl Conduct § 25(G). Thus, for an inactive attorney, like an attorney suspended from the practice of law for delinquency, a limit is imposed on the attorney’s entitlement to practice law; however, the privilege to practice law is not terminated and the lawyer’s name is not removed from the list of licensed attorneys. In any event, if there is a conflict, the specific provision in Rule VII(C) that “[f]ailure to pay the annual license fee provided in subsection A of this Section shall automatically suspend the delinquent lawyer from the practice of law in Arkansas” controls over the general statute that merely sets out the clerk’s recordkeeping duties; under the rules of statutory construction, we |9give effect to the specific rule over the general rule. See, e.g., Walden v. State, 2014 Ark. 193, at 10, 438 S.W.3d 864, 871.
Kelly also argues that the doctrine of res judicata precluded the circuit court from ruling against him. He asserts that a different circuit court, in a case involving another candidate for that same judicial seat, considered the same legal issues raised here. He contends that the other court’s ruling supported the position that Kelly takes here, and that Judge Fox and the other candidate are in some fashion in “privity” with one another. We conclude that res judicata does not apply. The true reason for holding that an issue is barred by res judicata is not necessarily the identity or privity of the parties, but is instead to put an end to litigation by preventing a party who has had one fair trial on a matter from relitigating the matter a second time. Crockett v. C.A.G. Invs., Inc., 2011 Ark. 208, at 9, 381 S.W.3d 793, 799. Judge Fox’s eligibility as a candidate was not litigated in the other case.
Accordingly, we conclude that, under amendment 80, even though Judge Fox failed to pay his annual license fee for forty-five days in 2013, he nevertheless remained a licensed attorney during the period of delinquency because his license was not terminated and his name was not removed from the list of licensed attorneys. Because he was a licensed attorney during that period and had been admitted to the bar in 1981, he was, as required by amendment 80, a “licensed attorney[] of this state for at least six years immediately preceding the date of’ the date on which the elected circuit judge will assume office. Thus, we affirm the circuit court’s decision that Judge Fox was eligible “to be a candidate for the position of Circuit Judge, Judicial District 06, Division 6, Sub-district 6.2, in the election for said |injudgeship scheduled to be conducted on May 20, 2014.”
Affirmed.
Special Justices RAYMOND R. ABRAMSON, WOODY BASSETT, and TODD TURNER, join in this opinion.
CORBIN, J., dissents.
DANIELSON, BAKER, and GOODSON, JJ., not participating.
. Judge Fox filed a notice of appeal from the dismissal of his third-party complaint against Leslie Steen in his official capacity as clerk of this court in which Fox asserted that an automatic suspension based on nonpayment of the annual license fee violated due-process provisions of the United States Constitution and the Arkansas Constitution. Fox, however, does not raise on appeal any issue relating to the circuit court’s dismissal.
. The dissent remarks that "the majority improperly goes beyond the plain language of amendment 80, section 16 to reach this result” and then promptly uses a layman’s dictionary to define the word "suspend,” a word that does not appear in that constitutional provision. Further, the dissent’s reliance on a dictionary over our own definition of the word misses the meaning that this court has attributed to the word. Nevertheless, the dissent ultimately adopts our definition.
. The dissent remarks that if an attorney’s right to practicé law is taken away, "that 'license' is not worth the paper it is printed on.” The fallacy of this position can best be demonstrated by the observation that a judge is specifically prohibited from practicing law by amendment 80, section 14. Thus, by the dissent’s logic, upon assuming judicial office, a judge would become unlicensed and ineligible to run for reelection.
. The dissent remarks, "Recently, this court was publicly accused of being results oriented. Never has that been more evident than with today’s decision.” Although every opinion that this court promulgates achieves a "result,” it is disappointing that a justice of this court would resort to this rhetoric. | [
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CLIFF HOOFMAN, Justice.
| jAppellant Peter Brave (“Peter”) appeals from the divorce decree entered by the Pulaski County Circuit Court on December 30, 2011, and the order on a posttrial motion to make additional findings of fact and to reconsider the divorce decree, filed on January 30, 2012. Appel-lee Marie Brave (“Marie”) filed a motion to dismiss the appeal. The court of appeals reversed and remanded the case to the circuit court, after denying the motion to dismiss the appeal, in a 4-2 decision. See Brave v. Brave, 2013 Ark. App. 542, 432 S.W.3d 42 Marie petitioned this court for review, which this court granted, and we accepted jurisdiction of this appeal pursuant to Arkansas Supreme Court Rule 1-2(e). When this court grants a petition for review, we treat the appeal as if it had been originally filed in this court. See McNutt v. Yates, 2013 Ark. 427, 2013 WL 5859515. We granted Marie’s motion to file substituted briefs, and both Marie | ¡.and Peter filed supplemental briefs. On appeal, Peter contends that (1) the circuit court committed reversible error by dividing the goodwill in Brave New Restaurant, despite the testimony largely indicating that the goodwill was personal to him, and (2) the circuit court committed reversible error by “double dipping” into the same stream of his future income when it divided the goodwill of Brave New Restaurant and gave Marie alimony. We deny the motion to dismiss appeal, affirm the circuit court, and vacate the court of appeals’ opinion.
This case arose after Peter filed his complaint for divorce on November 24, 2010. The couple had been married for more than twenty years and have two children. Peter and Marie were co-owners of Brave New Restaurant. The division of the restaurant, specifically any goodwill and characterization thereof, is the subject of this appeal. In the divorce decree filed on December 30, 2011, Peter was ordered to pay $3,000 per month in child support until the last minor child reached 18 or graduated from high school; $5,000 per month in long-term alimony; and $5,000 per month until all of the $420,000, including statutory interest, attributable to the division of the restaurant, was paid in full. The $420,000 represented Marie’s share of the Brave New Restaurant, after the court found that the value of the real estate was $495,000, and the value of Brave, Incorporated d/b/a Brave New Restaurant, including the furniture, fixtures, goodwill and equipment, was $895,000. After deducting the $550,000 debt on the property, the circuit court found that the net value of the business, [ including the real properly, was $840,000.
At the divorce hearing, Peter testified that Marie was a fifty-percent owner of Brave, Inc., and that Marie initially assisted with the restaurant but became less involved after the children were born. Peter introduced the testimony of Gus Dobbs (“Dobbs”), co-owner with his wife of E.K. Williams and Company. Dobbs testified that his company provided accounting and business-consultation services to the Braves. While Dobbs testified that he is not an accountant, his wife is an agent enrolled to practice before the Internal Revenue Service and prepares the tax returns. He prepared an evaluation of the business that was introduced as an exhibit at the hearing. In relevant part, he testified as follows:
[Dobbs:] If you look on page three, you’ll see that I did a EBITDA valuation of the business — EBITDA means before interest, taxes, depreciation and amortization — and derived a value of $819,057 for the business. When I did this valuation, the question that I was asked is if I sold my business how’s it going to come out, and Peter asked me to figure that out for him and so that’s what I did. I figured it out, and the direction that I came from was a little bit different because that question was a different question. That is, you know, if we sold our business, if we got out, I mean what am I going to have left over. That’s— that’s the way that I came about this.
Since I did not value the property, I did not know what that value was and they did not go out and get a property valuation. So, therefore, what I came up with was a difference number because I knew the assets, and liabilities, and the goodwill value, and basically told them that if — you know, that at that point in time if they sold the business that I felt like they could derive $268,877 — you know, after it was all done.
[Ms. James:] Okay. That value includes how much goodwill?
[Dobbs:] The goodwill part is the value of the business, which is $819,057. That has no — no fixtures, furniture, equipment, anything in it. That’s just the business itself.
[Ms. James:] Okay. So, basically, on your report you — there’s $819,057 on number one that says business.
|4[Dobbs:] Right.
[Ms. James:] Okay. And then you had equipment and fixtures at fair, market value of $82,330?
[Dobbs:] Right.
[Ms. James:] Okay. And so if you took goodwill out of this — if I do the math in my head — if you said your grand total was $268,877, but if you took goodwill out of it of $819,057, it would have a negative $550,000 equity; is that correct?
[Dobbs:] That’s a weird way to look at it, but it’s not incorrect.
[Ms. LuekenJ Now, when you prepared this — what you’re calling a business valuation — and you included in there, you said of particular importance is— you know, Peter Brave being part of the business.
[DobbsJ Right.
[Ms. LuekenJ But you made an adjustment when you valued this business by putting in a high salary for him, didn’t you? $120,000?
[DobbsJ I think you’re referring to the adjustment in the adjustment to EBITDA section, and essentially the way it works is — pardon me. You have to take out the present owner and put in the operation of a new owner.
[Ms. LuekenJ Okay. And so you did that?
[DobbsJ I did that, and in my valuation the way my method is that I always put myself in the place of — unless I have a specific buyer, for example, and I was working for the buyer, I put myself in that place and I say okay what’s it going to take. And that’s where that came from.
[Ms. LuekenJ So my question to you again is you have already calculated the replacement for Peter if that business was sold?
[DobbsJ I calculated an operator for the business, and that operator included a somewhat — you know, actually as I told you, two people.
At the circuit court’s hearing announcing its oral ruling, Peter announced, through counsel, his intention to appeal the valuation of the business and to request a stay pending an appeal. Peter subsequently filed a motion to make an additional finding of fact and to reconsider the decree on January 6, 2012, and a hearing on the ■ motion was held on January 30, 2012. In his motion, Peter requested the circuit court to state a specific amount of [ ^goodwill and to reconsider either that the characterization of goodwill should be personal or that the amount of alimony should be adjusted. After the circuit court heard oral argument from both parties, the circuit court announced its ruling, and its ruling from the bench helps to clarify the rationale for its findings in the subsequent written order. The circuit court recognized that personal goodwill has not been expanded to this type of business in Arkansas and that it may be appropriate under certain cases like this one. However, the court stated,
On the other hand, the testimony that came in, in regard to valuation, is not helpful, in my opinion, to the argument that we should recognize personal good will. And this is what I mean, which is ordinarily the testimony that you get in a divorce case about valuing either a business or a practice is testimony that has been developed solely for the purpose of litigation. This case is a little bit different in the sense that the testimony, as I recollect it, was that while Mr. Brave may have asked the witness what he thought the business would be worth for the purpose of litigation, he didn’t phrase it to the witness that way. He just simply said if I want to sell my business, what could I sell it for. Well, here is the deal. From the standpoint of a judge, that’s the perfect witness. The person that comes in to say this is my belief based on my assessment of what this would sell for in the open market. So that was good testimony.
Additionally, the circuit court stated that it was reducing the monthly alimony award from $5,000 to $4,000. Upon further inquiry, the circuit court additionally stated, “I’m saying that I don’t have any basis to allocate it between personal and corporate .... I’m finding it’s corporate since he testified that’s what the business could be sold for.” Furthermore, the circuit court stated that it took Peter’s argument regarding “double dipping” into consideration in reducing the amount of alimony.
On the same day, the circuit court filed an order conforming with its oral ruling, denying the motion to make a specific finding concerning the amount of goodwill, finding that the goodwill is corporate goodwill, denying Peter’s “argument that splitting the goodwill |fiand awarding alimony based on Plaintiffs future income constitutes impermissible ‘double dipping,’ ” and reducing the amount of alimony to $4,000 per month. •
Peter filed his notice of appeal on February 8, 2012. Additionally, Peter filed a motion to stay the judgment on February 16, 2012, and Marie filed a motion for contempt for nonpayment on March 30, 2012. The circuit court filed an order denying the stay pending appeal, ordering Peter to make all back-payments and future payments as set in the divorce decree. Additionally, the circuit court specifically held that “[a]U payments made by Plaintiff to Defendant pursuant [to] the judgment on the restaurant are recognized to be involuntary.” Furthermore, the court denied Marie’s motion for contempt.
Marie filed a motion to dismiss the appeal on April 8, 2013, alleging that this court lacks jurisdiction since Peter made three voluntary payments in partial satisfaction of the judgment. The Arkansas Court of Appeals passed the motion on May 1, 2013, for consideration when the case was submitted. The court of appeals denied Marie’s motion in a footnote in the majority opinion. Since the motion raises issues of jurisdiction, we first address this motion before addressing the merits on appeal.
Marie argues that Peter paid $10,000 on January 1, 2012; $10,000 on February 1, 2012; and $5,000 on February 15, 2012. Marie cites to this court’s holding in Hall v. Hall, as support for her argument. See Hall v. Hall, 2012 Ark. 429, 2012 WL 5583645. In Hall, Justin Hall (“Justin”) was [7ordered to pay his ex-wife, Tammye Hall (“Tammye”), $68,691.84 thirty days after the judgment and another $100,000 almost three months after the judgment. Id. Justin made the first payment and admitted that he did so voluntarily. Id. After Tammye filed a notice of appeal, Justin cross-appealed. Id. This court found that “Justin’s payment was a voluntary acquiescence to the judgment against him” and granted the motion to dismiss the cross-appeal. Id. Justin made a substantial payment in compliance with the judgment, did not try to reserve his rights or attempt to designate that his payment was going to only one part of the judgment, and did not try to post a supersede-as bond or present any argument that he was unable to do so. Id.
Unlike the circumstances in Hall, Peter announced from the beginning his intention to appeal and filed a motion to stay the judgment pending appeal. Furthermore, Peter did not admit that his payments were voluntary as Justin did in Hall. In fact, the circuit court specifically found in its order denying the motion to stay that “[a]ll payments made by Plaintiff to Defendant pursuant [to] the judgment on the restaurant are recognized to be involuntary.” As such, we do not think that Peter’s actions were a voluntary acquiescence to the judgment to bar this appeal, and we deny the motion to dismiss the appeal.
Peter contends in his first point on appeal that the circuit court erred in holding that the goodwill was corporate goodwill and dividing it as marital property rather than holding that it was personal to him. On appeal, divorce cases are reviewed de novo. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). With respect to the division of property, we review the circuit court’s findings of fact and affirm them unless they are clearly erroneous, or against 18the preponderance of the evidence; the division of property itself is also reviewed and the same standard applies. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Kelly v. Kelly, 2011 Ark. 259, 381 S.W.3d 817. We give due deference to the circuit court’s superior position to determine the credibility of witnesses and the weight to be given their testimony. Id.
In Wilson v. Wilson, this court adopted the Nebraska Supreme Court’s analysis regarding whether goodwill is an asset and is marital property subject to division. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).
The court in Taylor pointed to the difficulty that arises in valuing a professional practice when goodwill is likely to depend on the professional reputation and continuing presence of a particular individual in that practice.... [Taylor v. Taylor, 222 Neb. 721, 729, 386 N.W.2d 851, 857 (1986).] In a further discussion of that point, the court said:
[W]here goodwill is a marketable business asset distinct from the personal reputation of a particular individual, as is usually the case with many commercial enterprises, that goodwill has an immediately discernible value as an asset of the business and may be identified as an amount reflected in a sale or transfer of such business. On the other hand, if goodwill depends on the continued presence of a particular individual, such goodwill, by definition, is not a marketable asset distinct from the individual. Any value which attaches to the entity solely as a result of personal goodwill represents nothing more than probable future earning capacity, which, although relevant in determining alimony, is not a proper consideration in dividing marital property in a dissolution proceeding.
Id. at 731, 386 N.W.2d at 858.
We believe the view expressed in Taylor is a sound one, and conclude that, for goodwill to be marital property, it must be a business asset with value independent of the presence or reputation of a particular individual — an asset which may be sold, | transferred, conveyed or pledged. Thus, whether goodwill is marital properly is a fact question and a party, to establish goodwill as marital property and divisible as such, must produce evidence establishing the salability or marketability of that goodwill as a business asset of a professional practice.
Id. at 205-06, 741 S.W.2d at 646-47 (alteration in original).
Peter argues that although Wilson involved goodwill associated with a professional practice, specifically an orthopedic-surgery practice, personal goodwill can also be found in other nonprofessional practices, such as the goodwill associated with Brave New Restaurant. However, even if this court were to assume that personal goodwill could be found in the valuation of the restaurant, we do not find that the circuit court clearly erred in finding that the goodwill was corporate goodwill under these particular facts based on Dobbs’s testimony that he added the goodwill in his valuation of the restaurant if sold on the open market and that he also took into account the replacement of Peter in that valuation. Goodwill is characterized as corporate goodwill and marital properly, subject to division, if the evidence establishes the salability or marketability of the goodwill as a business asset. See Wilson, supra. Thus, based on this court’s standard of review, we affirm the circuit court’s decision on this point.
Peter contends in his second point on appeal that the circuit court erred by “double dipping into the same stream of [his] future income” when it divided the goodwill of Brave New Restaurant in awarding Marie alimony. However, Peter is mistaken. This court’s standard of review regarding an award of alimony is clear and is outlined as follows in Kuchmas:
|1ftAn award of alimony is a question that addresses itself to the sound discretion of the trial court. See McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000); Bums v. Bums, 312 Ark. 61, 847 S.W.2d 23 (1993). This court has held that the trial court can make an award of alimony that is reasonable under the circumstances. See Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996) (citing Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988)).
The purpose of alimony is to rectify economic imbalances in earning power and standard of living in light of the particular facts in each case. Mulling, supra. The primary factors that a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse’s ability to pay. Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988); see also Valetutti v. Valetutti 95 ArkApp. 83, 234 S.W.3d 338 (2006). The trial court should also consider the following secondary factors: (1) the financial circumstances of both parties; (2) the amount and nature of the income, both current and anticipated, of both parties; (3) the extent and nature of the resources and assets of each of the parties; (4) the earning ability and capacity of both parties. See Anderson v. Anderson, 60 ArkApp. 221, 963 S.W.2d 604 (1998). The amount of alimony should not be reduced to a mathematical formula because the need for flexibility outweighs the need for relative certainty. See Mitchell v. Mitchell, 61 ArkApp. 88, 964 S.W.2d 411 (1998).
Kuchmas v. Kuchmas, 368 Ark. 43, 45-46, 243 S.W.3d 270, 271-72 (2006).
Peter’s argument in his second point on appeal is flawed because it again is prem- feed on the fact that the goodwill, which he alleges represents his future earning capacity, used in the valuation of the business was personal goodwill. See Wilson, supra (quoting Taylor, 386 N.W.2d 851). However, as explained in his first point on appeal, the circuit court did not err in finding that the goodwill in this case was corporate goodwill. Furthermore, at the hearing on the motion for reconsideration, the circuit court reduced the alimony to $4,000 per month and specifically stated that it did so after taking Peter’s argument regarding “double dipping” into consideration. As such, we do not find that the circuit court abused its discretion and affirm the order of the circuit court.
Affirmed; motion to dismiss appeal denied; court of appeals’ opinion vacated.
. Since Peter's arguments on appeal involve only the valuation and characterization of any goodwill, a detailed understanding of every issue and each witnesses’ testimony throughout the divorce proceeding is unnecessary.
. On January 9, 2013, the Arkansas Court of Appeals granted an unopposed motion to correct the record on appeal and remanded the case for the circuit court to settle the record. A supplemental record was filed to include all relevant motions and orders that were filed in the circuit court. | [
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COURTNEY HUDSON GOODSON, Justice.
| Appellant Vernell R. Conley appeals the order entered by the Washington County Circuit Court denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. For reversal, he contends that the circuit court erred in finding that he did not receive ineffective assistance of counsel when his trial attorney (1) failed to produce testimony that was promised in opening statement; (2) neglected to make proper motions for directed verdict; and (3) failed to request a severance of the charges. We affirm on the first point; reverse and remand on the second issue with directions to dismiss the charges for possession of a controlled substance and possession of drug paraphernalia; and we do not reach the third point.
By amended felony information, the prosecuting attorney in Washington County charged Conley with delivery of a controlled substance (crack cocaine); possession of a | ¡.controlled substance (marijuana) with intent to deliver; and possession of drug paraphernalia (digital scales). The information also alleged that Conley was an habitual offender with more than four previous felony convictions. Conley stood trial before a jury in the circuit court on August 26, 2010. The State’s evidence disclosed that Conley delivered 0.5813 grams of crack cocaine to undercover police officers, who were associated with the drug task force in Madison and Washington Counties. According to the testimony, the delivery occurred on the evening of September 15, 2009, at a park in Fayette-ville. However, the officers did not arrest Conley until November 6, 2009. On that date, the officers also executed a search warrant at Conley’s home, where they discovered 32.5 grams of marijuana in a plastic bag and a set of digital scales. Both the marijuana and the scales were located in the laundry room on top of a cabinet above the washer and dryer. One officer testified that marijuana was also found in the master bedroom of the home, but there was no further testimony indicating where the marijuana was located in that room. Neither Conley nor any of his family members were at home when the officers arrived to execute the warrant, although the police later transported Conley to the home during the search. An officer also testified that additional surveillance was conducted of the home following Conley’s arrest and that no further drug activity was observed.
The jury found Conley guilty of delivery of crack cocaine and possession of the digital scales, as drug paraphernalia. The jury acquitted Conley of possession of marijuana with intent to deliver and instead found him guilty of the lesser-included offense of possession of marijuana. , At the sentencing phase of trial, the State introduced evidence that Conley had | .¡previously been convicted of twelve felonies. As an habitual offender, he received sentences of sixty years for delivery, six years for possession of a controlled substance, and thirty years for possession of drug paraphernalia. The circuit court directed the possession offenses to run concurrently and that those convictions be served consecutively to the delivery conviction. Conley appealed the convictions and sentences to the Arkansas Court of Appeals, which affirmed. Conley v. State, 2011 Ark. App. 597, 385 S.W.3d 875. Notably, the court of appeals refused to reach the merits of Conley’s sufficiency-of-the-evidence arguments after determining that his directed-verdict motions were not specific enough to preserve the issues raised on appeal.
Thereafter, Conley filed a timely petition for postconviction relief pursuant to Rule 37.1. The circuit court subsequently granted him leave to file an amended petition. In the amended petition, Conley asserted that he was denied effective assistance of counsel because his attorney failed to present a witness after counsel had informed the jury in opening statement that he would produce a witness to testify that the marijuana and the paraphernalia found in Conley’s home did not belong to Conley; because his attorney did not make adequate motions for directed verdict; and because his attorney failed to move for a severance of the possession offenses from the charge of delivery of a controlled substance. After a hearing, the circuit court denied the petition. In its order dated September 18, 2012, the |4court found that trial counsel’s decision not to call the proposed witness was a matter of trial strategy that was in compliance with the provisions of the Arkansas Rules of Professional Conduct. The cir cuit court also ruled that Conley suffered no prejudice from trial counsel’s failure to seek a severance of the offenses or to make sufficient motions for directed verdict. Conley filed a timely notice of appeal from the circuit court’s order.
At the outset, we note that this court does not reverse the denial of post-conviction relief unless the circuit court’s findings are clearly erroneous. Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830.
Our standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. In asserting ineffective assistance of counsel under Strickland, the petitioner first must demonstrate that counsel’s performance was deficient. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. 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. Adams v. State, 2013 Ark. 174, 427 S.W.3d 63. The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Scott v. State, 2012 Ark. 199, 406 S.W.3d 1. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions .of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55.
Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Myers v. State, 2012 Ark. 143, 400 S.W.3d 231. This requires the petitioner to show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. White v. State, 2013 Ark. 171, 426 S.W.3d 911. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Golden v. State, 2013 Ark. 144, 427 S.W.3d 11.
Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29. We also recognize that “there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Anderson v. State, 2011 Ark. 488, at 3-4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052).
As his first point on appeal, Conley argues that he was denied effective assistance of counsel when his attorney failed to produce a witness after telling the jury in opening statement “that you’re also gonna listen to a witness of ours come up and testify as to why the |fimarijuana was not Mr. Conley’s and the drug paraphernalia, okay.” He asserts that counsel’s failure to fulfill this promise constitutes deficient performance that diminished counsel’s credibility in the eyes of the jury and thus damaged his defense on’ all charges.
At the postconviction hearing, trial counsel identified the omitted witness as Conley’s wife, Monica. Counsel explained that he did not call her as a witness because the prosecutor advised that, if she were to testify that the contraband was hers, he would charge her with the felony offenses of possession with intent to deliver and possession of drug paraphernalia. Counsel also stated that Conley had admitted early on that he was guilty and that counsel could not tender Monica as a witness to give perjured testimony. In his testimony at the hearing, Conley confirmed that he and his counsel discussed the strategy of having Monica testify to take responsibility for the marijuana and the scales and that counsel advised against it because she would be charged if she so testified.
The failure to produce evidence promised in opening statement can be an unreasonable and prejudicial decision that denies a defendant effective assistance of counsel. Dunlap v. People, 173 P.3d 1054 (Colo.2007); see also Ouber v. Guarno, 293 F.3d 19 (1st Cir.2002); Harris v. Reed, 894 F.2d 871 (7th Cir.1990); Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988); State v. Moorman, 320 N.C. 387, 358 S.E.2d 502 (1987). The rationale for considering a failure to produce promised evidence as deficient performance is that when counsel primes the jury to hear a different version of events from what he ultimately presents, one may infer that reasonable jurors would think the witness to which counsel referred in his opening statement was unwilling or unable to deliver the testimony he promised. McAleese v. Mazurkiewicz, 1 [7F.3d 159 (3rd Cir. 1993). In other words, a jury is likely to conclude that counsel could not live up to the claims made in opening statement. Harris, supra. Courts also recognize that the failure to produce promised evidence undermines the credibility of the defense. Moorman, supra; State v. Zimmerman, 823 S.W.2d 220 (Tenn.Crim.App.1991).
For instance, in Anderson, supra, the defendant stabbed his estranged wife numerous times after finding her with another man. He admitted that he had killed his wife but argued as his defense that he was guilty of lesser-included offenses to the charge of first-degree murder. In opening statement, counsel promised to call two expert witnesses who would testify regarding the defendant’s mental state that the defendant was “walking unconsciously toward a psychological no exit ... like a robot programmed on destruction.” Anderson, 858 F.2d at 17. Although the statement was based on the reports of the experts who were available to testify, the defense rested the following day without calling the experts. In concluding that counsel’s promise had irreparably damaged the defense case, the First Circuit reasoned that “[t]he first thing that the ultimately disappointed jurors would believe, in the absence of some other explanation, would be that the doctors were unwilling, viz., unable, to live up to their billing. This they would not forget.” Id. The court likened the failure to call the experts to a “speaking silence” that weakened the “vitals of the defendant’s defense.” Id. at 18.
On the other hand, the course of a trial can affect and alter an original defense strategy and may lead to reasonable decisions not to call witnesses who were mentioned in opening statement. Williams v. Bowersox, 340 F.3d 667 (8th Cir.2003). The determination of 18whether counsel was ineffective depends on such factors as the nature and extent of the promises made in opening statement, any strategic justifications for the subsequent decision not to produce the evidence, the explanation provided to the jury for the failure to produce the evidence, the presentation of other evidence supporting the promised theory, and generally, the impact upon the defense at trial and upon the jury. Edwards v. United States, 767 A.2d 241 (D.C.2001). Determining whether the failure to call a promised witness is ineffective assistance of counsel depends on the facts and circumstances of each case. United States v. McGill, 11 F.3d 223 (1st Cir.1993).
This court has addressed the issue on one occasion. In Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per cu-riam), there was no record of opening statements made, but at a hearing on post-conviction relief, Chenowith testified that his trial attorney had told the jury in opening statement that he would call three witnesses to establish an alibi defense to charges of kidnapping and rape. Cheno-with’s trial counsel could not recall what he had said in his opening statement, and he testified that the defense strategy that he had pursued was one of consent. Counsel said that he did not offer an alibi defense because he thought it would be inconsistent with the defense that the encounters had been consensual. We found that there was no ineffective assistance of counsel on the ground that counsel’s failure to pursue the alibi defense was a reasonable defense strategy.
In the present case, we cannot conclude that Conley suffered any prejudice from trial counsel’s remark in opening statement. Conley’s defense to the charges of possession of marijuana with intent to deliver and possession of drug paraphernalia was that he was not in |flpossession of those items. Through cross-examination of the State’s witnesses, trial counsel emphasized that Conley was not the only occupant of the residence and that Conley was not at home when the officers arrived to conduct the search. When considered in context, trial counsel’s statement was an isolated remark, counsel did not identify the witness, nor did counsel disclose in any detail the substance of the proposed testimony. We also note that the jury found Conley guilty of the lesser-included offense of possession of marijuana, which indicates that counsel’s statement had little, if any, impact on the jury. On this record, we are not convinced that the failure to produce the witness undermines confidence in the outcome of the trial. Therefore, we affirm on this point.
Conley next asserts that his trial counsel provided ineffective assistance based on counsel’s failure to make motions for directed verdict sufficient to challenge the sufficiency of the evidence on the charges of possession of a controlled substance with intent to deliver and possession of drug paraphernalia. Noting the court of appeals’ holding that the directed-verdict motions made by counsel were insufficient, he contends that counsel’s deficient performance resulted in prejudice because the State failed to produce substantial evidence that he possessed the marijuana or the digital scales. Conley asserts that this is a case of constructive possession involving the joint occupancy of a home and that the State failed to present any evidence linking him to the contraband.
Where it is asserted that counsel was ineffective for the failure to make a motion or argument, the petitioner must show that the motion or argument would have been meritorious because the failure to make an argument that is meritless is not ineffective | inassistance of counsel. Mitchell v. State, 2012 Ark. 242, 2012 WL 1950257. In the instant case, therefore, Conley must demonstrate that the appel late court would have found that the evidence adduced at trial was insufficient to support a conviction and would have overturned his convictions for that reason. Strain v. State, 2012 Ark. 42, 394 S.W.3d 294. Because the circuit court determined that no prejudice resulted from the failure to make the directed-verdict motions, the appeal of that decision requires us to review whether there was sufficient evidence to support the verdicts.
This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Green v. State, 2013 Ark. 497, 430 S.W.3d 729. In addressing this issue, we consider all of the evidence, including that which may have been inadmissible, in the light most favorable to the State. Fondren v. State, 364 Ark. 498, 221 S.W.3d 333 (2006). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Wells v. State, 2013 Ark. 389, 430 S.W.3d 65. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Stevenson v. State, 2013 Ark. 100, 426 S.W.3d 416.
In drug cases, it is not necessary for the State to prove that an accused physically held the contraband, as possession of contraband can be proved by constructive possession, which is the control or right to control the contraband. Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007). Constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. hoggins v. State, 2010 Ark. 414, 372 S.W.3d 785. However, joint occupancy of the premises alone will Innot be sufficient to establish possession or joint possession unless there are additional factors from which the jury can infer possession. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Those additional factors include (1) that the accused exercised care, control, or management over the contraband; and (2) that the accused knew the matter possessed was contraband. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. This control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found, Loggins v. State, 2010 Ark. 414, 372 S.W.3d 785.
In this case, there was testimony that neither Conley nor any of his family members were at home when the officers arrived to conduct the search. Therefore, it is reasonable to conclude that Conley was not the sole occupant of the home. See Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982) (stating that it was reasonable to assume that the defendant shared the home with his wife, although there was no direct testimony that the wife lived there). The record in this case also shows that the digital scales, which are fiat, and the bag of marijuana were on top of a cabinet in the laundry room. The top of the cabinet was recessed. To further obscure the contraband from sight, the marijuana and the scales were situated behind a decorative object consisting of an axiom made of wooden letters. The evidence thus discloses that the contraband was hidden from view. Based on this evidence, unless there are other factors linking Conley to the possession of the scales and the marijuana, the evidence is not sufficient to support Conley’s convictions for possessing those items. The State maintains that Conley is connected to the contraband because marijuana was also found in the [ ^master bedroom. However, the testimony did not disclose where the marijuana had been found in that room. Other than the fact that marijuana was found there, there is no evidence linking Conley to the possession of that marijuana. Thus, the discovery of marijuana in the bedroom does not establish Conley’s possession of the contraband in the laundry room. The State also relies on the testimony that, once Conley had been arrested, no further drug activity was observed at the home. However, we do not regard this evidence as establishing a connection between Conley and the possession of the marijuana and the scales that were hidden in the laundry room. Consequently, we conclude that the evidence is not sufficient to support Conley’s convictions for possession of a controlled substance and possession of drug paraphernalia. In turn, we hold that trial counsel’s performance was deficient and prejudicial, because had trial counsel made a proper motion for directed verdict, the sufficiency-of-the-evidence argument raised on appeal would have been successful. Accordingly, we reverse and remand with directions to dismiss the charges of possession of a controlled substance and possession of drug paraphernalia. See State v. Thompson, 343 Ark. 135, 34 S.W.3d 33 (2000) (recognizing that the Double Jeopardy Clause prohibits retrial after a conviction has been reversed because of insufficiency of the evidence). See also, e.g., Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986) (reversing denial of collateral relief and dismissing the charges when counsel deemed ineffective for failing to advance a meritorious motion to dismiss based on the lack of a speedy trial; Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984) (same); Clark v. State, 274 Ark. 81, 621 S.W.2d 857 (1981) (same)).
Conley’s final argument is that trial counsel was deficient for not moving to sever the [^possession offenses from the delivery charge. This issue is solely directed to the possession offenses. Because we have already found counsel’s performance deficient with regard to those convictions, and because those charges are to be dismissed, we need not address this claim of ineffective assistance of counsel. See Rackley v. State, 2014 Ark. 39; Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995); Sheridan v. State, 331 Ark. 1, 959 S.W.2d 29 (1998).
Affirmed in part; reversed and remanded in part with directions to dismiss the charges of possession of a controlled substance and possession of drug paraphernalia.
HART, J., concurs.
. Although Conley raised additional allegations of ineffective assistance of counsel in his petition and amended petition, he has not pursued them on appeal. Therefore, those issues are deemed abandoned. Tomavacca v. State, 2012 Ark. 224, 408 S.W.3d 727.
. Conversely, it was necessary for this court to address the first issue on appeal because Conley asserted under that point that trial counsel’s broken promise so damaged trial counsel’s credibility that he was entitled to a new trial on the delivery charge, as well as the possession offenses. Even though we rejected Conley’s argument that he was prejudiced by the broken promise, the issue is one that we are required to consider. | [
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DONALD L. CORBIN, Justice.
|!Appellant, Kylie B. Chitwood, appeals the order of the Benton County Circuit Court granting summary judgment to her father, Appellee, Gordon G. Chitwood, Jr., on her complaint to collect an alleged ar-rearage for child support accrued during the period of February 19, 1999, to May 31, 2004. The order appealed from also dismissed as moot Appellee’s third-party complaint for indemnification against Appellant’s mother, Jane Chitwood. For reversal, Appellant contends that the circuit court erred in two respects. First, Appellant asserts that the circuit court erred in ruling that no arrearage existed because her mother was equitably estopped from collecting the support in a previous lawsuit.- Second, Appellant asserts that the circuit court erred in finding that her needs were met during the challenged period. This is a subsequent appeal, and jurisdiction is properly in this court pursuant to Arkansas Supreme Court- Rule 1-2(a)(7) (2013). Chitwood v. Chitwood, 2013 Ark. 195, 2013 WL 1932916. We find no merit to either of Appellant’s arguments and affirm.
|2The record reflects the following. Appellant was born on October 1, 1990, during the marriage of Appellee and Jane Chitwood. She was the second child born of the marriage, as Appellee and Jane Chitwood also had a son born on September 23,1987. Appellee divorced Appellant’s mother in October 1993, and was ordered to pay child support for both children. On July 26, 2011, Appellant, then age twenty, filed a complaint against Appellee to collect an alleged arrearage in child support that had accrued from February 19, 1999, to May 31, 2004. On August 30, 2011, Appellee filed a third-party complaint against Appellant’s mother seeking indemnification from her should he be required to pay the alleged arrearage.
On February 23, 2012, Appellee filed a motion for summary judgment, arguing primarily that Appellant’s complaint was barred under the law-of-the-case doctrine, based on previous litigation wherein he had prevailed against Jane on her claim for unpaid child support for the same period. Chitwood v. Chitwood, 92 ArkApp. 129, 211 S.W.3d 547 (2005) (affirming circuit court’s finding that Jane Chitwood was equitably estopped from asserting her claim for unpaid support during the same period, February 1999 to May 2004). After a hearing on the motion for summary judgment, the circuit court announced its ruling from the bench and later entered an order granting Appellee’s motion for summary judgment on May 24, 2012.
We dismissed Appellant’s first appeal for lack of a final order. Chitwood, 2013 Ark. 195. The circuit court subsequently entered an amended order, again granting summary judgment to Appellee and also dismissing, as moot, his third-party complaint for indemnification. In the amended, final order now being appealed, the circuit court | <.specifically found “that there was no child support arrearage for the period of time sought in [Appellant’s] Complaint and that there is no arrearage as of this date.” The circuit court’s ruling was based on the previous litigation in which the court of appeals affirmed the circuit court’s decision that Jane Chitwood was estopped from collecting child support for the challenged period. Chitwood, 92 Ark.App. 129, 211 S.W.3d 547. The order also stated as follows:
The Chitwood children’s needs were met during the period of time when [Appel-lee] was not paying child support pursuant to his belief that an agreement had been made that no child support would be due and owing and he would have no relationship with the children. This factual situation was fully resolved by the Court in Chitwood v. Chitwood, CA-04-996 and on appeal in Chitwood v. Chitwood, 92 Ark.App. 129[, 211 S.W.3d 547] (2005).
5. The Court finds that at this point in time, to require [Appellee] to provide funds to [Appellant] would be inequitable.
6. Because there was no arrearage during the period of time for which an arrearage is sought in this Complaint and because there is no arrearage today, the entry of an Order of Summary Judgment is ordered.
Appellant timely appealed from the foregoing order, which was final because it dismissed the third-party complaint as moot.
We review child-support cases de novo on the record, and we do not reverse a finding of fact by the circuit court unless it is clearly erroneous. Hall v. Hall, 2013 Ark. 330, 429 S.W.3d 219. In reviewing a circuit court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. However, we give no deference to a circuit court’s conclusion of law. I Jd. Summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Tillman v. Raytheon Co., 2013 Ark. 474, 430 S.W.3d 698.
Appellant’s first point for reversal of the summary judgment is essentially a challenge to the circuit court’s finding that there was no arrearage because Appellant’s mother was estopped from pursuing the same claim in a previous lawsuit. Appellant argues that the equitable-estoppel defense that Appellee had used successfully in the earlier lawsuit filed by her mother cannot be asserted in this case because Appellee has not presented any facts necessary to satisfy the elements of equitable estoppel against Appellant. Relying on Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952 (1998), Appellant argues further that her mother’s actions did not absolve Appellee of his legal and moral obligation to pay child support. According to Appellant, because Appellee’s obligation to pay support continued to exist during the five-year period that he did not pay support, the arrearage is a legitimate claim for Appellant to pursue now that she has reached the age of majority.
Appellee responds that child support is a singular obligation and that the circuit court correctly determined that there was no arrearage and no cause of action for Appellant to pursue because estoppel had been determined in the previous lawsuit. Specifically, he asserts that, because an order had previously been entered setting the amount of child support he was to pay, the controlling statute governing Appellant’s ability to collect child support upon reaching the age of majority is'Arkansas Code Annotated section 9-14-236 (Repl. 2009). Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 47 S.W.3d 227 (2001). Because | Bthis court has interpreted that statute in Clemmons as providing for only a singular obligation of child support, Appellee maintains that the prior litigation bars the present action.
We conclude that our holdings in Clemmons and Chunn v. D’Agostino, 312 Ark. 141, 847 S.W.2d 699 (1993), are dis-positive of this case and render Appellant’s argument for reversal without merit. In Clemmons, this court considered the two statutes governing when children who have reached the age of majority may maintain an action for child support: Ark. Code Ann. §§ 9-14-105 and 9-14-236 (Repl.2009). This court concluded in Clemmons that section 9-14-105 applies to actions for initial petitions of support and that section 9-14-236 applies to actions for collection of arrearages for support ordered in a prior judgment. This court also concluded in Clemmons that section 9-14-236 “does not place a limitation on who” among the statute’s list of possible parties “can pursue an action for collection of child-support arrearages.” Clemmons, 345 Ark. at 342, 47 S.W.3d at 234. We noted that our case law supported such a conclusion, as this court has had cases in which the custodial parent, the adult child, or the custodial parent, even after the child reached majority, was allowed to pursue collection of the arrearage. See Clemmons, 345 Ark. 330, 47 S.W.3d at 227 (collecting cases). However, we also noted that even though the statute “contemplates one support obligation which may be pursued by different persons at different times,” our cases indicate that “once a child reaches majority, whoever files the collection action first is allowed the right and ability to collect.” Clemmons, 345 Ark. at 344, 47 S.W.3d at 235 (quoting Chunn, 312 Ark. at 145, 847 S.W.2d at 701). Our interpretation of the statute as stated in Clemmons, as well as the cases collected and cited therein, leads to the conclusion that when a custodial |P,parent files suit to collect an arrearage for the support of a minor child, that child may not also sue for the same arrearage once the child reaches majority.
We note that, although some subsections of these statutes have been slightly amended and rearranged, there have been no substantive changes to the statutes since Clemmons was decided. The General Assembly is presumed to be familiar with this court’s interpretations of its statutes, and if it disagrees with those interpretations, it can amend the statutes. Com v. Farmers Ins. Co., 2013 Ark. 444, 430 S.W.3d 655. Without such amendments, however, our interpretations of the statutes remain the law. Id.; Miller v. Enders, 2013 Ark. 23, 425 S.W.3d 723.
Applying these statutory principles as interpreted in Clemmons to the facts of this case, we see that Jane Chitwood was the first to file the action to collect the unpaid support for the five-year period from February 1999 to May 2004. As noted by the court of appeals, Jane Chitwood’s action was filed on April 21, 2003, while Appellant was still a minor. Chitwood, 92 Ark.App. 129, 211 S.W.3d 547. That action concluded with the court of appeals affirming the circuit court’s finding that Jane Chitwood was prohibited by the doctrine of equitable estoppel from seeking to collect child-support arrearages or to enforce any child-support judgment that had accrued through May 25, 2004. As the first to file, Jane Chitwood was thus allowed the right and the ability to collect the alleged arrearage. See Clemmons, 345 Ark. 330, 47 S.W.3d 227. Her attempt failed because it was held that she was estopped from collecting the arrearage. Chitwood, 92 Ark.App. 129, 211 S.W.3d 547. To allow Appellant to subsequently maintain a second, or additional, suit to collect the same support obligation 17would be inconsistent with the singular nature of the child-support obligation. While it is true, as Appellant argues, that she could not have maintained her action until she reached majority, that does not make her claim for support a different one from the one pursued by her mother that was barred. See Chunn, 312 Ark. 141, 847 S.W.2d 699 (concluding that action by adult children was the same claim and barred by their mother’s failure to bring it within the then applicable five-year-limitation period).
In sum, we conclude that the alleged arrearage for the challenged period was a singular obligation of support that has previously been litigated and barred from collection due to the doctrine of equitable estoppel. Chitwood, 92 ArkApp. 129, 211 S.W.3d 547. Because child support is a singular obligation, and because the unpaid support claimed in this case has previously been litigated to the conclusion that it cannot be collected, we cannot say that the circuit court here was clearly erroneous in finding that there is no arrearage and that the prior suit bars the present suit.
As her second point for reversal, Appellant challenges the circuit court’s finding that her needs were met by funds available to her mother during the five-year period that Appellee did not pay child support. On appeal, Appellant emphasizes that the additional funds used to meet her needs did not come from Appellee, but from her mother’s inheritance.
Initially, we note that the facts supporting this finding were undisputed. For, as the circuit court’s order correctly observed, Appellant admitted in her deposition that her and her brother’s everyday needs and expenses were paid during the challenged period. Furthermore, Appellant misreads the operative effect of this finding as a matter of law. The summary ^judgment was appropriately granted because there were no material facts in dispute, and the claim was barred as a matter of law. If the claim is barred as a matter of law, whether Appellant’s needs were met for the challenged period is of no effect.
In conclusion, we note that the circumstances of this case are somewhat unique. The court of appeals held that the mother was estopped from asserting the claim to the support because she had induced the father to enter into an agreement that she knew was unenforceable because she had sought legal counsel on the matter. The arrearage that Appellant attempts to collect here is the same arrearage that her mother had attempted to collect in the previous suit. That her mother’s attempt to collect failed does not change the singular nature of the child-support obligation as contemplated by the statute, section 9-14-236, and recognized in our case law interpreting the statute, Clemmons and Chunn. Appellant’s present suit is barred by her mother’s previous suit. The finding that Appellant’s needs were met during the challenged period of unpaid support was not clearly erroneous and was not the basis for the circuit court’s conclusion that summary judgment should be granted. The summary judgment in favor of Appel-lee is therefore affirmed; accordingly, there is no need for us to address Appel-lee’s arguments concerning the possible revision of the amount of support, any credit for moneys he paid to Appellant after she had reached majority, and the possible transfer of wealth or accumulation of capital that would result.
Affirmed.
BAKER, J., dissents. | [
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DONALD L. CORBIN, Associate Justice.
|, This appeal stems from Appellant Sandra Nance’s conviction and sentence on multiple counts of animal cruelty, as well as entry of a supplemental order determining the costs of care and custody of dogs seized from Nance’s property. Nance argues the following points on appeal: (1) the circuit court erred in denying her motion to suppress evidence gathered from a search of her property; (2) Arkansas Code Annotated section 5-62-106 (Supp.2011), governing the seizure of animals, violates the Fourteenth Amendment to the United States Constitution, and article II, section 8 of the Arkansas Constitution because it allows the taking of property without due process of law; (8) section 5-62-106 violates article IV, section 2, and amendment 80, section 8 of the Arkansas Constitution because it invades this court’s authority to establish rules governing practice and procedure of the courts; and (4). the circuit court erred in refusing to order that all of the seized dogs be returned to her. The State cross-1 ^.appeals, arguing that the circuit court erred in returning those dogs to Nance, which she had not been convicted of abusing, because she had not paid all reasonable expenses for their care as required by section 5-62-106. We assumed jurisdiction of this appeal because it implicates constitutional questions and issues of statutory interpretation; hence, our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(i) and (b)(6) (2013). We affirm the order of the circuit court denying Nance’s motion to suppress evidence, but dismiss the appeal and cross-appeal of the circuit court’s supplemental order.
The record reflects the following facts. On June 26, 2012, an anonymous caller notified employees at the Pulaski County Humane Society (PCHS) that there were dogs at a location on Sentell Loop in Austin that were housed in the sun, with no access to shade, and in excessively hot temperatures. PCHS referred the caller to the Lonoke County Sheriffs Office. An employee of Cabot Animal Services then contacted PCHS and stated that someone had also called there about the condition of some animals at that same location. Kay Simpson, Director of PCHS and also a certified cruelty investigator, asked her board president, Christine Henderson, to drive by the location and check on the dogs. After Henderson expressed some concern, a decision was made that Simpson and Dr. Teresa Medlock, a PCHS veterinarian, would go to the property to see if they could offer the owners any assistance with the dogs.
Two days later, Simpson, Henderson, her husband Jack Henderson, and Dr. Medlock traveled to the Nance property. While en route, Simpson contacted the Lo-noke County Sheriffs Office for assistance, and Sgt. Dennis Sanderson was dispatched to assist the group. |3Simpson also contacted Nance and asked her to meet them at her properly. At that time, Nance was working in a store she owned, “Smoochie Poochies,” located in Searcy, where she sold puppies and dogs from her kennel. When Nance arrived, Simpson told her about the calls they had received and asked Nance if they could walk through the kennel. Nance agreed and during the walk-through, Simpson noticed that many of the cloths used to provide shade for the dogs were tattered, shredded, and hanging down in the cages. She also noticed some large fans through the area that were not working, and one working fan that was tilted upward. When asked, Nance stated that the fans had stopped working a couple of days prior. Simpson also noticed a misting system that was not spraying the dogs. Simpson also noticed that while some of the dogs had clean water bowls, others had pale-green-tinted water or dark green, blackish water.
While investigating, Simpson and Dr. Medlock both noticed that a lot of the dogs were panting but were not barking much, and others were lying in holes they had dug to stay cool. The women also noticed that a large number of the dogs were “brachycephalic dogs,” meaning they have smaller snouts and have a harder time breathing in extreme heat or cold. They also noticed that some dogs had extremely matted fur, which added to the dogs’ heat stress. Simpson and Dr. Medlock both expressed concern about the dogs’ well-being and thought it was best to remove the dogs from the property. As a result, Sergeant Sanderson contacted the Lonoke County prosecutor, who then came to the Nance property. After ^seeing the dogs and the conditions of the kennel, the prosecutor authorized PCHS to seize all the dogs on the property.
Nance was charged by information in the Lonoke County Circuit Court with three felony counts of aggravated cruelty to animals, in violation of Arkansas Code Annotated section 5-62-104, and ten misdemeanor counts of cruelty to animals, in violation of Arkansas Code Annotated section 5-62-108. During the pendency of the criminal action, the State filed a “Motion for Divestment of Custody,” pursuant to section 5-62-106, asking that custody of the dogs be placed with PCHS, which was caring for the dogs. This motion was filed in the criminal action, with its corresponding criminal-docket number. Nance filed a response to the State’s motion and her own “Petition to Determine Custody,” pursuant to section 5-62-106, both also filed with the criminal-docket number. She subsequently filed a corresponding motion seeking to have the circuit court declare section 5-62-106 unconstitutional, and it was also docketed with the criminal-docket number.
Nance also filed a pretrial motion to suppress evidence, asserting that the Lo-noke County Sheriff’s Office had seized approximately 140 dogs from her premises without a search warrant. Moreover, Nance asserted that none of the exceptions to the warrant requirement were applicable and, thus, any evidence related to the seizure should be suppressed. The circuit court denied the motion to suppress, and Nance was tried by a jury on March 12-14, R2013. The jury found Nance guilty of five misdemeanor counts of cruelty to animals. After the jury was unable to agree on sentencing, the circuit court dismissed the jury and scheduled a hearing to take up the issue of sentencing. On March 29, 2013, the court held a sentencing hearing and sentenced Nance to 100 hours of community service at an animal shelter and payment of a $500 fine; both to be completed within sixty days from entry of the court’s order. A written order reflecting the bench ruling was filed of record on June 6, 2013.
After the conclusion of the criminal proceedings, the circuit court held a hearing on April 29, 2013, to address the issue of the costs incurred by PCHS in caring for the dogs, as well as to address cross-motions by the State and by Nance regarding custody of the dogs, and Nance’s motion to declare section 5-62-106 unconstitutional. At that hearing, Nance argued that the State’s petition for custody of the dogs and costs for their care should be denied because she never received any written notice of the seizure of her dogs as required under section 5-62-106. She further argued that section 5-62-106 did not allow the seizure of her dogs, as it applied only to instances in which there is an animal in a vehicle with a person who is arrested or when animals are fighting. According to Nance, even if the statute is construed more broadly, there was still no basis for the seizure of all the dogs, because there was no testimony that any of the non-brachycephalic dogs had been seized pursuant to the statutory subchap-ter.
Nance also raised several arguments in support of her claim that section 5-62-106 was unconstitutional. She argued in relevant part that the statute was unconstitutional, both facially and as applied, because it did not comport with requirements of due process. She |(,further argued that she had never been given notice or an opportunity for a timely hearing and that the statute violated separation of powers because policies, procedures, and practices are solely within the purview of this court, not the legislature.
Thereafter, the circuit court entered a supplemental order denying Nance’s motion to declare section 5-62-106 unconstitutional; ordering her to pay costs to PCHS of $6,425; divesting Nance of custody of the five dogs that she had been convicted of abusing; and ordering the return of the remaining dogs once Nance complied with the court’s orders. Nance filed a timely notice of appeal; the State timely cross-appealed.
As her first point on appeal, Nance argues that the circuit court erred in denying her motion to suppress all evidence related to the seizure of the dogs because the search was made "without a warrant and none of the exceptions to the warrant requirement applied. According to Nance, the State had the burden of proving that consent to the search was freely and voluntarily given and that there was no actual or implied duress or coercion. Nance further argues that the evidence demonstrated that, by the time she gave any consent to search, an illegal entry had already occurred and, thus, any consent that followed such an illegal intrusion was tainted and invalid.
The State counters that the circuit court properly determined that Nance freely consented to the search of her property. The State further asserts that Nance’s argument that the search had already begun is not preserved for review because the circuit court never ruled on that issue; rather, it limited its decision solely to the issue of consent. The State is correct in both regards.
[When reviewing a circuit court’s denial of a motion to suppress evidence, the appellate court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to the inferences drawn by the trial court. Pickering v. State, 2012 Ark. 280, 412 S.W.3d 143. A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. We defer to the circuit court’s superior position in determining the credibility of the witnesses and resolving any conflicts in the testimony. Id.
First, we address the State’s contention that Nance’s argument that any consent she may have given was invalid because it occurred after an illegal entry onto her property is not preserved for our review. In looking at the arguments raised at the suppression hearing and the circuit court’s subsequent ruling, it is clear that the State is correct on the issue of preservation. As previously stated, Nance filed a motion to suppress evidence of the dogs that were seized or any documentary evidence related to those dogs on the basis that there had been an unlawful search conducted without a warrant that tainted the subsequent seizure of the dogs. The circuit court held a hearing on the suppression motion on February 27, 2013. Simpson, Dr. Medlock, and Nance testified at the hearing.
Simpson testified about the calls she had received regarding the dogs on Nance’s property and explained that she went there with the others to check on the dogs and to see if PCHS could offer any assistance. On the way to Austin, Simpson contacted the Lonoke |sCounty Sheriffs Office, and Sergeant Sanderson was dispatched to assist. Simpson testified that she then contacted Nance and told her she was there with a Lonoke County deputy and would like to talk to her about suggestions on caring for the dogs in the hot weather. Nance replied that she was at work and would be there in thirty to forty-five minutes. According to Simpson, when Nance arrived, Simpson introduced herself and told her that PCHS had received some calls about the dogs. She asked Nance if she would walk the group through the kennel so that they could make suggestions on how to improve conditions. According to Simpson, Nance agreed to walk the group through the kennel. Simpson denied that Nance ever asked the group to leave. Moreover, Simpson repeatedly denied that anyone walked through the kennel prior to Nance’s arriving and escorting them.
Dr. Medlock also testified that she was one of the people who went to the Nance property, and stated that she was worried about the excessive heat and some of the breeds of the dogs because they were considered brachycephalic, or “schmuch-nosed dogs,” who cannot ventilate as well as dogs with longer airways. According to Dr. Medlock, she heard Simpson ask Nance for permission to walk through the kennel and heard Nance agree. She stated that Nance led the group through the kennel. Dr. Medlock stated .that it was their usual practice to. wait for law enforcement before entering someone’s property. She confirmed that her report reflected that while they waited, the group could see a large number of dogs in what appeared to be a run-down facility, with much trash and debris littering the property. Dr. Medlock also stated that it was possible to see a lot of the kennel from the road. Dr. Medlock denied that a. decision to seize the dogs had been' made prior to Nance’s arrival.
13Nance was the final witness at the suppression hearing. She testified that she received a call from Simpson who stated that she was at Nance’s and did not want to take her dogs but wanted to give her some suggestions. According to Nance, when she arrived, Simpson and Dr. Medlock were standing on. the gravel beside the kennel gates. Nance stated that Simpson introduced herself and stated that they were going to have to take the dogs because it was too hot. Nance denied that Simpson asked for permission to search the property. She stated that she tried to talk Simpson out of taking the dogs, explaining that they were acclimated to the temperatures and were checked on regularly throughout the day. Nance again stated that she did not give them permission to search the property, but then conceded that she led them through and around the property to try and convince them not to take the dogs. Nance further stated that, by the time she arrived, she did not feel as if there was anything she could do to stop them from taking the dogs. On cross-examination, Nance stated that she asked Simpson if she had a search warrant but denied that she asked them to leave her property.
At the conclusion of the hearing, Nance argued that the State’s theory that she had consented to the search was invalid because she could not have given legal consent when the search had already begun. Nance further argued that it was clear that the group had already made a decision to seize the dogs before she consented to the walk-through. Moreover, Nance argued that there was no voluntary consent given because the presence of a uniformed officer resulted in “coercion] or duress, either actual or implied.”
The court took the matter under advisement and entered a written order denying the motion to suppress on March 7, 2013. In its order, the circuit court ruled that the State had | inproved by clear and positive evidence that, pursuant to Arkansas Rule of Criminal Procedure 11.1, Nance consented to the search and that such consent was freely and voluntarily given and that there was no actual or implied coercion or duress. The court then concluded that there was no violation of Nance’s rights under the Fourth Amendment to the United States Constitution.
Although Nance argued at the suppression hearing that an illegal search had begun before she ever gave any consent, it is clear that the circuit court did not rule on this argument. Instead, the circuit court focused solely on the issue of Nance’s voluntary consent to search. This court addressed the issue of preservation where a party files a motion on multiple grounds and explained as follows:-
In Eastinv. State, 370 Ark. 10, 16, 257 S.W.3d 58,- 63 (2007), this court discussed when multiple arguments are presented by a motion:
It is the appellant’s burden to present a case before the trial court that fully and completely develops all the issues. See Raymond v. State, 354 Ark. 157,118 S.W.3d 567 (2003); Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993). Moreover, it is the appellant’s burden to obtain a clear ruling on an issue from the trial court. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 519 U.S. 898, 117 S.Ct. 246, 136 L.Ed.2d 174 (1996); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 517 U.S. 1226, 116 S.Ct. 1861, 134 L,Ed.2d 960 (1996). In both Misskelley and Bowen, the appellants raised multiple arguments in their motions to suppress. This court refused to reach the merits of those arguments that were not specifically ruled upon by the trial court in denying the motions.
Rounsaville v. State, 372 Ark. 252, 258-59, 273 S.W.3d 486, 491-92 (2008). Thus, our court has made it clear that Nance had the burden of obtaining a ruling on her alternative argument that a search was already underway at the time she gave consent. Her failure to do so precludes this court from addressing that issue.
|nWe turn now to the issue of consent, which is preserved for our review. Arkansas Rule of Criminal Procedure 11.1 (2013) provides that “[a]n officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search or seizure.” Additionally, a consensual search shall not exceed, in duration or scope, the limits of the consent given. Ark. R.Crim. P. 11.3 (2013). The State has the burden of proving by clear and convincing evidence that consent to search was freely and voluntarily given and that there was no actual or implied duress or coercion. Ark. R.Crim. P. 11.1(b). The United States Supreme Court has held that the test for a valid consent to search is that the consent be voluntary, and “[vjoluntariness is a question of fact to be determined from all the circumstances.” Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248^9, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)); see also Welch v. State, 364 Ark. 324, 219 S.W.3d 156 (2005). This court has stated that knowledge of the right to refuse consent to search is not a requirement to prove the voluntariness of consent. Webb v. State, 2011 Ark. 430, 385 S.W.3d 152; Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002).
Here, the testimony on the suppression issue, can readily be summed up by stating that Simpson and Dr. Medlock both testified that Nance gave her consent for the group to walk through her property and look at the kennel. Nance was the only witness who testified to anything contrary, and even then, she conceded that she agreed to allow them to walk through her property, although she asserted that she felt as if she had no choice.
Now, on appeal, Nance continues to argue the evidence in a way to support her contention that her consent was not voluntary. She relies on this court’s decision in State v. | wBrovm, 356 Ark. 460,156 S.W.3d 722 (2004), and asserts that “the sensitivity of the Brown court to, and acknowledgment of, the coercive nature of the presence of law enforcement on the issue of consent applies equally here.” Nance’s argument is wholly misplaced, as Brown is clearly distinguishable. Brown involved three armed officers requesting and receiving consent to search a home without advising a homeowner of his right to refuse consent that resulted in a violation of the homeowner’s constitutional rights. As stated previously, the issue of knowledge of the right to refuse consent does not affect the voluntariness of Nance’s consent.
In sum, after hearing the witnesses and their conflicting testimony, the circuit court ruled that Nance had freely given her consent to search. Thus, it is clear that the circuit court found that the testimony of Simpson and Dr. Medlock was more credible than the testimony of Nance, an interested party. As we stated in State v. Nichols, 364 Ark. 1, 216 S.W.3d 114 (2005), this court has never wavered from its long-standing rule that it is the province of the circuit court, not this court, to determine the credibility of witnesses. Moreover, the record is devoid of any evidence that appellant was coerced into consenting. Accordingly, we cannot say that the circuit court clearly erred in denying Nance’s motion to suppress.
| iSThe remaining points raised by Nance on appeal and by the State on cross-appeal are all challenges to the circuit court’s supplemental order regarding the costs owed by Nance for the care of the dogs and the custody of those dogs. This supplemental order was the result of the motions filed by Nance and the State pursuant to section 5-62-106, as well as motions challenging the constitutionality of that statute. Although not raised by any party, this court must determine as a threshold matter whether the circuit court had subject-matter jurisdiction to consider and rule on those motions. The question of subject-matter jurisdiction is always open for review, cannot be waived, can be questioned for the first time on appeal, and can even be raised by the appellate court. Terry v. Lock, 343 Ark. 452, 37 S.W.3d 202 (2001). If the circuit court lacked jurisdiction, this court also lacks jurisdiction.
Section 5-62-106 governs the disposition of animals seized pursuant to the statutory chapter outlining offenses involving animals, including charges of animal cruelty and aggravated animal cruelty. This section provides in relevant part:
(a)(1) Unless otherwise ordered by a court, for purposes of this subchapter, an animal that has been seized by a law enforcement officer or animal control officer under this subchapter shall remain at the appropriate place of custody for a period of at least, fifteen (15) consecutive days, including weekends and holidays, after written notice is received by the owner.
(4) (A) After written notice is received by the owner or published under subdivision (a)(3) of this section, the owner within fifteen (15) business days may petition the district court having jurisdiction where the animal was seized to determine the custody of the animal.
(B) If a petition is not filed by the owner within the time period prescribed by this section, the prosecuting attorney shall file a petition in the district court to divest |uthe owner of ownership of the animal and, after a hearing, the district court may order the animal transferred to an appropriate place of custody, euthanized, or any other disposition the district court deems appropriate.
Ark.Code Ann. § 5-62-106(a)(i), (a)(4)(A)(B).
Pursuant to the plain language of section 5-62-106, an owner may petition “the district court having jurisdiction where the animal was seized” to determine custody of the animal; or, if no petition is filed by the owner, the prosecuting attorney “shall file a petition in the district court to divest the owner of the ownership of the animal.” ArLCode Ann. § 5-62~106(a)(4)(A), (B). In this case, the State and Nance filed their respective petitions in the circuit court pursuant to this statute. The State filed its motion for divestment of custody in the circuit court criminal action on November 13, 2012, asking that custody of the dogs seized be divested from Nance. On December 6, 2012, Nance filed a response to the State’s motion and a motion to have the dogs returned to her, arguing, in relevant part, that the dogs were seized in violation of her constitutional rights and that the statutory scheme under which the dogs were taken was unconstitutional on its face and as applied. Nance filed a second petition to determine custody of the seized dogs on December 12, 2012, and contemporaneously with this petition, filed a motion to declare section 5-62-106 unconstitutional. Therein, she specifically alleged that the statute was unconstitutional as applied to her. On January 23, 2013, she filed a supplemental motion to declare the statute unconstitutional, further asserting that the section is facially unconstitutional.
It appears from the record, specifically in the respective motions filed by the State and by Nance, that Nance originally filed a petition in the Lonoke County District Court, |1fipursuant to section 5-62-106, requesting the return of her dogs. According to Nance and the State, the district court held a hearing and ultimately ruled that the legislature lacked the authority in section 5-62-106 to establish jurisdiction in the district court. However, there is no official record of what transpired in district court. One of Nance’s pleadings states that the district court order is attached as an exhibit, but no such exhibit is included in the record. Thus, while it appears that Nance tried to originally avail herself of the proper procedure set forth in section 5-62-106, once the district court dismissed her petition for lack of jurisdiction, the proper method for bringing the matter in circuit court would have been to file an appeal of the district court’s order of dismissal in the circuit court, as required by District Court Rule 9 (2013), but this was not done. Simply refiling the petitions in the pending criminal case in circuit court did not somehow confer jurisdiction on the circuit court to consider petitions and arguments related to section 5-62-106.
This court addressed the issue of subject-matter jurisdiction in Hunter v. Runyan, 2011 Ark. 43, 382 S.W.3d 643, explaining in relevant part as follows:
It is well settled that, in Arkansas, subject-matter jurisdiction is considered to be a court’s authority to hear and decide a particular type of ease. Edwards v. Edwards, 2009 Ark. 580, 357 S.W.3d 445 (citing David Newbern & John Watkins, Civil Practice and Procedure § 2:1, at 19-20 (4th ed.2006)). An Arkansas court lacks subject-matter jurisdiction if it cannot hear a matter “under any circumstances” and is “wholly incompetent to grant the relief sought.” Id. at 4, 357 S.W.3d at 448 (quoting J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 352-53, 836 S.W.2d 853, 858 (1992)). An Arkansas circuit court obtains subject-matter jurisdiction when it is conferred under the Arkansas Constitution or by means of constitutionally authorized statutes or court rules. Id.
J^Id. at 10-11, 382 SW.3d at 649-50. Here, subject-matter jurisdiction was conferred by section 5-62-106, and it was conferred in the district court. This jurisdiction would include any authority over the petitions for custody and the related arguments regarding the constitutionality of the statutory scheme. In fact, this court has held that any assertion of a constitutional violation under the Arkansas Constitution and the United States Constitution presupposes that the party is properly within the court’s jurisdiction. See Roberson v. State, 2010 Ark. 433, 2010 WL 4524561; Lineberry v. State, 322 Ark. 84, 907 S.W.2d 705 (1995).
In sum, the petitions for divestment by the State and the petition for custody by Nance filed in the circuit court were in direct contravention of the statutory provision requiring that such petitions be filed in district court. In the absence of any appeal of the district court’s purported order of dismissal to the circuit court, the circuit court lacked jurisdiction to decide the petitions regarding ownership of the dogs or the costs owed for their care. Likewise, because Nance’s challenge to the constitutionality of the statute was so in tertwined with the petitions requesting a determination of custody under section 5-62-106, the circuit court also lacked jurisdiction to rule that the statute was constitutional. Thus, because the circuit court | flacked jurisdiction over the petitions filed pursuant to section 5-62-106 and the issue of the constitutionality of that statute, we likewise lack jurisdiction to review the circuit court’s supplemental order. In so holding, we are cognizant that one of Nance’s arguments challenging the constitutionality of section 5-62-106 is that the General Assembly violated the doctrine of separation of powers in placing jurisdiction in district court where Rule 15.2 of the Arkansas Rules of Criminal Procedure provides for circuit court jurisdiction in matters involving seized property. We do not pass judgment on that issue at this juncture, as we lack jurisdiction to consider the argument.
Affirmed in part and dismissed in part; cross-appeal dismissed.
BAKER and HART, JJ., dissent.
. The temperature that day reached 110 degrees.
. The exact number of dogs seized is not evident from the record. Simpson testified at the suppression hearing that 127 adult dogs and 20 puppies were seized, but that number differs in various pleadings.
. In her argument to this court, Nance makes much ado about the kennel being part of the curtilage and about where Simpson and the others were located on the property when she arrived; however, none of those issues are relevant to the question of consent; rather, they go to Nance’s argument that a search had already begun by the time she arrived. Moreover, the circuit court made no findings that the kennel was part of the curtilage or which part of the property Simpson and the others were on when Nance arrived. Thus, there is no need for this court to consider such issues.
. Normally, a party could seek a declaration of a statute's constitutionality by filing a declaratory-judgment action with the circuit court. This court has recognized that declaratory judgments are used to determine the rights and liabilities of respective parties. Nelson v. Ark. Rural Med. Practice Loan & Scholarship Bd., 2011 Ark. 491, 385 S.W.3d 762. The purpose of the declaratory-judgment statutory scheme "is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Ark.Code Ann. § 16 — 111—102(b) (Repl.2006). Here, however, Nance did not file such an action. She filed a response to the State's petition for divestment of custody, her own motions for return of custody, and in the context of advancing those petitions, she alleged that section 5-62-106 was unconstitutional.
. While the dissent would reach, and goes on to decide, numerous issues outlined therein, not one of those issues was properly raised, argued, or developed below or on appeal. This court should not and does not make an appellant’s argument for her or him. | [
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DONALD L. CORBIN, Justice.
| lAppellant Justin Jamaille Thornton appeals from an order of the Lincoln County Circuit Court convicting him of capital murder, and sentencing him to life imprisonment without the possibility of parole. Thornton’s sole argument on appeal is that the circuit court erred in denying his motions for a directed verdict because there was insufficient evidence to establish that he acted with the requisite intent of premeditation and deliberation. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(a)(2) (2013). We reverse and remand.
Officers with the Lincoln County Sheriffs Office received a call that the body of a black male had been discovered in a ditch on Brooklyn Road. According to Lt. Kenneth Davis, an officer assigned to investigate the case, the victim, later identified as Kwame Turner, had suffered a gunshot wound to the side of his face. Lieutenant Davis also stated that there | ¡¡were scuff marks on the victim’s back indicating that the body had been dragged down to the ditch. Authorities later discovered Turner’s car at an apartment complex in Pine Bluff.
After police developed Thornton as a suspect, they obtained a warrant to search his residence, which sits behind a house on Boston Road. Lieutenant Davis stated that upon arriving at the residence, he noticed grass in the backyard that looked identical to grass found inside the front door of Turner’s vehicle. There was also a blood stain on a back step, as well as what appeared to be blood inside the door. Officers also discovered a bag in the kitchen that contained a towel with red stains, believed to be blood, and a bucket with pinkish water and a mop in the kitchen near the backdoor. There were also several areas of what appeared to be blood on an orange chair in the living room. Also in the living room, investigators discovered a pair of house shoes and a pair of sweat pants, both of which appeared to have blood stains on them. Police found two .45-caliber bullets on a dresser in the bedroom, as well as five bullet casings on the ground about 100 yards away from Thornton’s residence.
Police arrested Thornton on October 2, 2011, at the Executive Inn in Pine Bluff, in a room registered to Alex Reed, a friend of Thornton’s. When police knocked on the door to the room, they heard a male say, “I’m going to lay face-down on the floor.” Thornton initially told police that his name was Jamadle Thompson, but Lieutenant Davis recognized him as Thornton and took him into custody. Thornton was charged by felony information with one count each of capital murder, felony theft of property, possession of a firearm, and abuse of a corpse. The State also alleged that Thornton was subject to a sentence enhancement for using a firearm to commit a felony and as a habitual offender.
1 sPrior to trial, Thornton filed a motion seeking to waive his right to a trial by jury. The circuit court held a hearing to inquire whether Thornton understood the nature of the right he was waiving and whether his waiver was being freely made. At this hearing, the State announced that it agreed to the waiver and as a result would not seek the death penalty. Thornton announced on the record that he understood and that he wished to be tried by the court. Thereafter, the circuit court granted Thornton’s motion.
A bench trial was then held on February 19-21, 2013. At the close of the State’s case, Thornton moved for a directed verdict on all charges. He specifically argued that the State failed to prove that he had murdered Turner. Thornton further argued that there was no proof that he had acted with premeditation and deliberation. The circuit court denied the motion. Thornton was the only defense witness and at the close of all the evidence, he again renewed his motions for a directed verdict. The circuit court denied the motions and took the case under advisement. The court then ruled from the bench that the State had proved the charges of capital murder, possession of a firearm, and abuse of a corpse. But, the circuit court reduced the felony-theft charge to a misdemeanor count of unauthorized use of a vehicle.
The circuit court entered a sentencing order on March 4, 2013, finding Appellant guilty as set forth above. The circuit court sentenced Thornton to life imprisonment without the possibility of parole on the capital-murder charge; 240 months’ imprisonment on the Upossession-of-a-fire-arm charge; 240 months’ imprisonment on the abuse-of-a-corpse charge; and 12 months’ imprisonment in the county jail on the unauthorized-use-of-a-vehicle charge. In addition, the court imposed an additional term of 120 months’ imprisonment as a firearm enhancement, pursuant to Arkansas Code Annotated section 16-90-120. The court ordered that the firearm enhancement and the sentence for abuse of a corpse were to be served consecutively, with the remaining terms to run concurrently. This timely appeal followed.
As his sole point on appeal, Thornton argues that the circuit court erred in denying his motions for a directed verdict because the evidence submitted by the State was insufficient to prove the charge of capital murder. More specifically, Thornton asserts that the State failed to establish that he acted with premeditation and deliberation, which is the requisite intent to establish the crime of capital murder. In support of his assertion, Thornton argues that all of the evidence presented was circumstantial and left the fact-finder to engage in speculation and conjecture in determining guilt. The State counters that the circuit court correctly denied the directed-verdict motions as there was ample proof to establish Thornton’s guilt. The State further asserts that circumstantial proof may constitute sufficient evidence and does so in this case.
Although Thornton moved for a directed verdict, such a motion at a bench trial is a motion for dismissal. A motion to dismiss at a bench trial and a motion for a directed verdict at a jury trial are both challenges to the sufficiency of the evidence. See Ark. R.Crim. P. 3B.1 (2013); Stewart v. State, 362 Ark. 400, 208 S.W.3d 768 (2005). In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by ^substantial evidence, direct or circumstantial. Stevenson v. State, 2013 Ark. 100, 426 S.W.3d 416. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
Circumstantial evidence may constitute substantial evidence to support a conviction. Wallace v. State, 2009 Ark. 90, 302 S.W.3d 580. The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. Such a determination is a question of fact for the trier of fact to determine. Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005). The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Wallace, 2009 Ark. 90, 302 S.W.3d 580.
A defendant commits capital murder, if, with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person. Ark.Code Ann. § 5-10-101(a)(4) (Repl.2013). Premeditated and deliberated murder occurs when the killer’s conscious object is to cause death, and he forms that intention before he acts and as a result of a weighing of the consequences of his course of conduct. Williams v. State, 2011 Ark. 432, 385 S.W.3d 157. Moreover,
[i]n order to prove that an accused acted with a premeditated and deliberated purpose the State must prove: (1) that the accused had the conscious object to cause the death of another; (2) that the accused formed the intention of causing the death before acting; and (3) that the accused weighed in his mind the consequences of a course of | f,conduct, as distinguished from acting suddenly on impulse without the exercise of reasoning power.
Ward v. State, 298 Ark. 448, 451, 770 S.W.2d 109, 111 (1989); see also O’Neal v. State, 356 Ark. 674, 682, 158 S.W.3d 175, 180 (2004) (quoting Ford v. State, 334 Ark. 385, 389, 976 S.W.2d 915, 917 (1998) (“Deliberation has been defined as “weighing in the mind of the consequences of a course of conduct, as distinguished from acting upon a sudden impulse without the exercise of reasoning powers.’ ”)). But, premeditation is not required to exist for a particular length of time. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). It may be formed in an instant and is rarely capable of proof by direct evidence but must usually be inferred from the circumstances of the crime. Pearcy v. State, 2010 Ark. 454, 375 S.W.3d 622.
In reviewing Thornton’s sufficiency challenge, we turn to the evidence adduced at trial. Bobby Humphries, chief latent-print examiner with the Arkansas State Crime Laboratory, testified that he had examined the evidence submitted in this case. This included a plastic-mold impression of a partial shoe print that Lieutenant Davis had discovered near the victim’s body. The mold was sent to the state crime lab, along with a pair of tennis shoes that Davis recovered from Thornton after his arrest. Humphries stated that the pattern in the cast of the print was consistent with the pattern of the Nike shoes Davis recovered when he arrested Thornton. He further stated that the physical size of the heel area of Thornton’s Nike shoe corresponded with the physical size of the cast. However, on cross-examination, Hum-phries explained that he could not state with certainty that it was the Nike shoe that had |7made the print by the victim’s body. He explained that other shoes, including other brands, could have similar patterns.
Kimberly Phillips, a crime-scene technician with the Pine Bluff Police Department, testified that she was called to process Turner’s vehicle after it had been located. She stated that there did not appear to be any blood on the inside of the vehicle, but there did appear to be blood in the trunk and on the bumper. According to Phillips, there were two spent shell casings in the car, one on the driver’s seat and one in the floorboard, as well as two pieces of grass located just inside the left front door. Upon processing the vehicle for evidence, Phillips swabbed areas of the steering wheel, blinker, and gear shift, as well as the areas in the trunk and on the bumper that appeared to be blood stains.
Vickie Jackson testified that she lived in a house on Boston Road near the house where Thornton resided and knew both Thornton and Turner. On the night of the murder, Jackson stated that she did not see Turner but that his car was parked next to Thornton’s, outside Thornton’s house. . Later that evening, between 8:00 and 8:30 p.m., Jackson was walking back from her mother-in-law’s house to her house when she heard a gunshot come from Thornton’s house. She stated that she continued walking and Thornton came to the door and said, “Ms. Vickie, I’m okay. I just dropped my gun. It went off on the floor.” According to Jackson, Turner’s car was still parked outside Thornton’s residence when this happened, but the next morning when she left for work, she noticed that Turner’s car was gone. Jackson stated that as far as she knew, Thornton and Turner got along well.
| ^Marcus Kennedy, a neighbor of Thornton’s, testified that Thornton was his wife’s cousin and that he knew who Turner was and recognized him when he saw him. According to Kennedy, he saw Turner’s vehicle parked at the back door of Thornton’s house, with the rear of the vehicle pulled up next to the doorstep. Kennedy opined that it looked like Thornton was about to load something. Kennedy denied ever hearing a gunshot on the night of the murder. Kennedy also testified that Thornton had previously been at his house target shooting with a .45 High Point semiautomatic weapon. Kennedy further stated that he was not aware of any kind of argument between Thornton and Turner.
Thornton’s cousin, Tyrone Heliums, who also lived on Boston Road, testified that he knew both Thornton and Turner and knew them to be friends. Heliums stated that on September 29, 2011, he saw Turner’s vehicle pulling into a driveway and assumed Turner was going to Thornton’s house. According to Heliums, Thornton later called him and asked Heliums what he was doing. Thornton then met Heli-ums outside and walked with him to Marcus Kennedy’s house. During this walk, Heliums did not notice Turner’s car at Thornton’s residence. He stated that later that same night Thornton called him again and stated that he needed help with something. Heliums went outside, and Thornton was there. The pair began walking toward Thornton’s house and about halfway there, Thornton asked Heliums if he had change for a $100 bill. When Heliums said he did not, Thornton turned and returned home. According to Heliums, when he learned the next day that Turner had been killed, he called Thornton and Thornton stated that he was going to call and make sure people “knew that he didn’t do it.” Hallums further stated that the next time he talked to |9Thornton, Thornton stated that people were saying he had killed Turner and that they were looking for him and that he had guns loaded and ready for them. Thornton called Heliums again that day and said that “when stuff happened in his house something got on the couch.”
Alex Reed testified that on the evening of the murder, between 9:00 and 10:00 p.m., he received a phone call that Thornton was at Reed’s grandmother’s house. Reed went over to pick up Thornton and stated that Thornton was not acting out of the ordinary at that time. According to Reed, Thornton stayed "with him the next two nights, and on the third night, Reed rented Thornton a hotel room at the Executive Inn. Reed stated that he rented the room because Thornton did not have any identification.
Dr. Stephen Erickson, deputy chief medical examiner at the Arkansas State Crime Laboratory, testified that he had performed the autopsy on Turner. He stated that there was a single gunshot wound to the head, with an entrance wound above the left ear and exit wound on the right jaw area. Dr. Erickson opined that it was likely that once the bullet exited the jaw, it entered the right arm and remained there. According to Dr. Erickson, he could not say how far away the gun was when it was fired, but there was no evidence of close range of fire. He further explained that the muzzle of the gun was not close enough to the skin to mark it. He stated that most close-range gunshot wounds are within a foot and a half or two, no more than three feet away. Dr. Erickson also testified that the direction of the wound was from left to right, downward and back to front. Dr. Erickson agreed that it was possible that the victim could have been sitting in a chair and that the angle was consistent with a wound from a bullet that had entered the back of his head, exited his jaw, and entered | inhis arm. While he admitted that there was nothing inconsistent with this scenario in his review, “scene investí- gation has to be decided by a lot more investigation than me.” Dr. Erickson also stated that he ruled the manner of death to be a homicide, or at the hands of another person. On cross-examination, Dr. Erickson stated that there were many possible scenarios to explain the track of this wound.
Zachary Elder, a firearm and tool-marks examiner at the Arkansas State Crime Laboratory, testified that the bullet recovered from the victim was a .45-caliber bullet. Elder opined that, based upon the general characteristics of rifling, the bullet that struck Turner had been fired from a High Point .45-caliber firearm. Elder further stated that he compared that bullet to seven shell casings submitted as evidence and determined that they had all been fired from the same .45-caliber weapon.
Morgan Nixon, a forensic DNA analyst at the Arkansas State Crime Laboratory, testified that a blood sample from the orange chair at Thornton’s residence matched Turner’s DNA, as did the swab of blood from the trunk and bumper of Turner’s car. She further stated that the blood on a sock that had been found on Thornton’s back step also matched Turner’s DNA. She admitted, however, that no forensic evidence had been retrieved from Turner’s car to link Thornton to that car.
Greg Harmon, warden at the Wrights-ville Unit of the Arkansas Department of Correction (ADC), testified that Thornton was incarcerated there while awaiting trial. During that time, Harmon was notified that a suspicious letter had been discovered during a routine mail-room check. There were question marks in place of a return name and Inaddress, and it was addressed to a “Mrs. Hallums,” mother of State’s witness, Tyrone Hallums. The letter stated that Tyrone had helped move Turner’s body and could get into trouble and advised that if anyone talked to police or testified at trial they would be harmed. Because the letter referenced the September homicide and contained threats, Harmon turned it over to ADC officials, who, in turn, submitted it to Lieutenant Davis. Davis showed the letter to Kristi Hunter, who had been Thornton’s juvenile probation officer. When she saw the letter, she immediately stated that she recognized the handwriting as that of Thornton’s. As a result of the investigation into the letter, ADC authorities ordered that Thornton was to be transferred to the Varner Super-max Unit.
Thereafter, Thornton took the stand in his own defense. He stated that he and Turner had been friends since kindergarten and had not had any fights or arguments. According to Thornton, on the day of the murder, he was in Pine Bluff the entire day with a friend, Brianna Christian. Thornton denied that he had ever lived at the residence on Boston Road or that he had seen or talked to Vickie Jackson that day. Thornton stated that she was lying and thus must have had something to do with the murder. He further denied owning a gun or killing Turner.
Clearly, the foregoing evidence establishes that Turner was shot and killed inside Thornton’s house; however, this evidence is insufficient to support a conclusion that Thornton killed Turner with a premeditated and deliberate intent. To establish the requisite mens rea for capital murder, the State was required to prove that Thornton had the conscious object to cause Turner’s death, that such an intention was formed before he acted, and that 112he weighed in his mind the consequences of his course of conduct. See Williams, 2011 Ark. 432, 385 S.W.3d 157.
This court has recognized that intent may be inferred from the circumstances of the crime. Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996). More specifically, this court has held that premeditation and deliberation may be inferred from the type and character of the weapon; the manner in which the weapon was used; the nature, extent, and location of the wounds; and the accused’s conduct. Robinson v. State, 36B Ark. 432, 214 S.W.3d 840 (2005). In this vein, this court has held that evidence of multiple close-range gunshots is consistent with a conclusion of premeditation and deliberation. See Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004). Here, however, Dr. Erickson testified that there was no evidence of close-range fire, and, in fact, he stated that a close range would be anywhere from one to no more than three feet. When asked from how far away the shot could have been fired, Dr. Erickson stated that it “[c]ould be a mile away,” and explained that it would depend on the length of the room.
As to the location of a wound, this court has upheld findings of premeditation in cases where the evidence showed that a victim was shot multiple times from behind. See, e.g., Farris v. State, 308 Ark. 561, 826 S.W.2d 241 (1992). Here, the State asked Dr. Erickson if it was possible that Turner was seated in a chair when the bullet entered the back of his head, and Erickson agreed it was possible. But, he went on to state that even though there was nothing in his review that was inconsistent with such a theory, “the scene investigation has hato be decided by a lot more investigation than me.” Moreover, he admitted on cross-examination that there could be multiple scenarios explaining the trajectory of the bullet.
In trying to demonstrate that the circumstantial evidence presented in this ease was of a sufficient force to compel the conclusion that Thornton acted with premeditation and deliberation, the State relies specifically on the medical examiner’s description of the fatal wound and the location of the blood evidence on the chair in Thornton’s house. The State asserts that there is no likelihood that the gunshot was the result of the gun being dropped or mishandled. Whether the evidence could establish another likely scenario for what transpired inside Thornton’s home is not the proper inquiry, however, where the record in this case demonstrates that the circuit court reached its conclusion by engaging in speculation and conjecture in concluding that Thornton acted with premeditation and deliberation. Specifically, in considering the charge of capital murder, the circuit court stated as follows:
When we talk about capital murder and first-degree murder, they get rather close. And the differentiating difference is premeditation and deliberation. And we’ve defined those two. When we go back again and we consider that the defendant is a reasonably intelligent human being who has been exposed to weapons, who have shot a ,45-caliber pistol, it has been testified to, more than three times, because we have witnesses who have been with him when he has shot them, as such, and he shot them multiple rounds in that. He understands what a .45-caliber pistol will do to a human being and a human head. To take such a weapon and point it toward someone’s head and squeeze the trigger, it is, in this Court’s mind, impossible for one who does not appear to be under the influence of any substances, one who does not have any particular anger or vengness [sic] toward a person, one who is not in a self-defense mode, but to pick up that pistol and walk up behind someone and squeeze a round off into their head, the Court believes you’ve got to give some thought to what this could do. And since there is nothing in the record that shows anything else than an intentional act, that is delib erate. Therefore, the Court finds that in what was done here, the Court concludes that from the record presented in this matter, the defendant | uacted with premeditation and deliberation in causing the death of Kwame Turner, and thus he is guilty of capital murder.
There are two problems with the circuit court’s reasoning. First, while the forensic evidence was consistent with a conclusion that Turner was shot from behind, there was absolutely no evidence that Thornton deliberately picked up a gun, walked behind Turner, pointed the gun at his head, and “squeez[ed] a round off into” Turner’s head. As Dr. Erickson noted, there were multiple scenarios that could account for the bullet’s trajectory.' As previously stated, where a case rests on circumstantial evidence, such evidence must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147.
It is true that whether the evidence excludes every other hypothesis is a question for the fact-finder, here the circuit court. Id. The problem that arises in this instance is that the circuit court, in weighing the evidence, improperly shifted the burden of proof to Thornton. The circuit court concluded that this was a deliberate, intentional act because “there is nothing in the record that shows anything else.” In reaching this conclusion, the circuit court posited that there was no evidence that Thornton was intoxicated, angry, or acting in self-defense and, thus, he must have acted deliberately. But, Thornton was not required to allege or offer proof of any such defenses, particularly where his defense was one of wholesale denial. It is, of course, a fundamental principle of criminal law that the State has the burden of proving the defendant guilty beyond a reasonable doubt. Marks v. State, 375 Ark. 265, 289 S.W.3d 923 (2008). Accordingly, because the circuit court engaged in speculation in | ^determining that Thornton acted with premeditation and deliberation and improperly shifted the burden of proof when weighing the evidence, we must reverse Thornton’s conviction for capital murder. While the evidence cannot sustain the charge of capital murder, we offer no opinion about whether it would sustain a lesser offense. See, e.g., Acuffv. State, 253 Ark. 85, 484 S.W.2d 698 (1972).
Reversed and dismissed.
BAKER and GOODSON, JJ., dissent.
. Thornton does not challenge the sufficiency of the evidence with any of these counts other than the capital-murder conviction. | [
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KENNETH S. HIXSON, Judge.
| TAppellant Charles Smith appeals from an order of the White County Circuit Court entered on February 7, 2013, awarding custody of the parties’ son, D.S., to appellee Christina Hudgins. Charles raises two arguments on appeal. First, he argues that the trial court erred in failing to recuse. Charles also contends that the trial court erred in awarding custody to Christina. We affirm.
On July 20, 2011, D.S. was born out of wedlock to Charles and Christina. The three of them lived together in Benton until Christina moved with the child to Searcy in December 2011. On December 9, 2011, Christina filed a petition for paternity and custody. Christina’s petition was filed by her father, Robert Hudgins, who is an attorney. A temporary hearing fywas held on December 14, 2011, wherein Charles waived the requirement of a DNA test and acknowledged paternity. On January 5, 2012, the trial court entered a temporary order finding Charles to be the father of D.S. and awarding temporary custody to Christina. Charles was awarded visitation to include most weekends and one hour each Tuesday and Thursday night. Charles was also ordered to pay child support.
On August 8, 2012, over Charles’s objection, the trial court entered an order appointing psychiatrist Charles Spellmann to perform a custody evaluation. Dr. Spell-mann conducted psychological evaluations on each of the parties at separate times, and he observed them interact with the child. On September 6, 2012, Dr. Spell-mann authored a letter stating:
Based on my evaluations, it is my opinion that the child will be best cared for by Christina, as she has family members who are available caretakers when needed. Furthermore, the mother is off work during the week and can be a full time mother. A child of this age needs “mothering.” He will appreciate “fathering” as he gets older.
On October 23, 2012, Charles filed a motion asking the trial judge, Craig Hannah, to recuse, alleging at least the appearance of impropriety. In his motion, Charles alleged that Christina had told him that she had communicated with Judge Hannah ex parte regarding the issues in the case. Charles claimed to be in possession of an audio recording corroborating this allegation. On November 6, 2012, Christina responded to the motion to recuse, denying having any such conversation with Charles or having any ex parte contact with the judge. The trial court entered an order denying Charles’s motion to recuse without comment on November 15, 2012.
|sThe final custody hearing was held over two days on November 28 and December 14, 2012. At the outset of the November 28 hearing, Charles renewed his motion to recuse. Charles testified that he was requesting recusal based on communications by Christina stating that she had talked with the judge after the temporary hearing, and also because of the apparent relationship between Christina’s family and Judge Hannah’s family. Charles proffered pages from Facebook purporting to demonstrate a friendship between the Hudgins family and the Hannah family, but these documents were ruled inadmissible by the trial court because they had not been provided in discovery. However, Charles was permitted to testify as to what he viewed on Facebook, which included Judge Hannah himself being listed as one of Christina’s younger brother Michael’s “friends,” as well as a comment by Judge Hannah to a hunting picture posted by Michael. Charles also produced documentation that Judge Hannah had appointed Christina’s father Robert Hudgins as the executor in an unrelated case, and that the two men were codefendants in a federal lawsuit that was later dismissed. In addition, Charles introduced emails from Christina purporting to show a relationship between her family and Judge Hannah’s family. In particular, in response to an email from Charles accusing Christina’s father of using his friendship with the judge to get his way, Christina responded, “he’s not using his friendship,” thereby implying that a friendship existed. In another email, Charles stated that he thought Christina’s brother was friends with Judge Hannah’s children, and Christina responded that “we aren’t doing anything with that family right now.”
|4Christina contradicted Charles and testified that she had not had any communications with Judge Hannah since the case began. Christina further testified that there is no friendship between her father and Judge Hannah, nor is there a friendship between her family and the Hannah family. Christina maintained that she had never socialized with Judge Hannah or his family. The trial court orally denied Charles’s motion to recuse, again without comment, and the custody hearing moved forward.
Christina testified that she and D.S. live in a house in Searcy with her parents and younger brother Michael, who is twenty years old. Christina stated that she cares for D.S. every day, bathing and feeding him, and she described D.S. as a very happy baby. Christina stated that while she and Charles were together, she was D.S.’s primary caregiver.
Christina testified that she is currently employed at a nursing home in Searcy. Her hours are from 11:00 p.m. to 7:00 a.m. four or five nights per week, and she said that her mother takes care of D.S. while she is at work.
Christina stated that throughout their relationship Charles had been threatening and physically abusive toward her, and that he beat her both before and during her pregnancy. Christina acknowledged that she and Charles signed an agreement when D.S. was one month old, stating that Charles would have custody of the child. However, she maintained that Charles threatened her with a gun and forced her to sign that agreement against her will. Christina testified that Charles continues to harass her during the visitation exchanges. She also said that when she gets D.S. back from visitation he has wet diapers with dried feces, smells of cigarette smoke, and is hungry.
^Christina’s father, Robert Hudgins, testified that he attends the visitation exchanges and that Charles videotapes every exchange and does everything possible to make things difficult. On one weekday visitation in March 2012, D.S. had some marks on his head and Charles called the police. Charles refused to give the baby back to Christina until after the police arrived, and the parties had a brief physical confrontation as Christina tried to retrieve the child from Charles. Christina was charged with assault, but the charge was later dropped. A subsequent DHS investigation found no evidence of abuse.
Robert testified that D.S. is very happy and healthy. He said that Christina is an excellent mother and that she raises the child, while other family members are there to help. Robert stated that, prior to the day of the final hearing, they had never needed an outside babysitter for D.S. Robert testified that Christina was eventually planning on moving to another house, but that he loved having her and D.S. at his house and that they were welcome to live there as long as they wanted.
Charles testified that he currently lives in Little Rock and is employed full-time by the Arkansas Army National Guard. Charles works five days a week and occasionally has drill on the weekend. Charles testified that his mother is deceased and his father lives in Texas. Charles stated that he has brothers who live out of state, but he also has a sister living in Sherwood who would be available to help care for D.S. if he were awarded custody. Charles said that he wanted more contact between D.S. and his family.
Charles denied that he ever physically harmed Christina. He acknowledged that there had been violence in their relationship, but he maintained that it was Christina who had | ^assaulted him. Charles stated that he was asking for custody because he did not believe Christina showed natural maternal instincts or could provide an appropriate home.
Charles testified that he spends every minute he can with D.S., and he said that D.S. “is my world.” Charles indicated that he primarily took care of D.S. for the first few months of his life, and stated that he does everything he can do to create a great home and loving atmosphere for the child. Charles also presented the testimony of other witnesses who described him as a great father.
On February 7, 2013, the trial court entered an order establishing paternity, custody, visitation, and child support. The trial court awarded custody of D.S. to Christina, and also ruled that, due to the young age of the child, Charles should be awarded more frequent visitation than would be standard. The trial court awarded visitation to Charles to include every other weekend as well as overnight visitation every Tuesday night until D.S. begins school, at which time Charles will get D.S. on Tuesday evenings until 7:00 p.m. The trial court also ordered Charles to pay child support.
In this appeal, Charles first argues that Judge Hannah should have recused, and that he erred in refusing to do so. He claims that the bias in this case was based upon the relationship between Judge Hannah, appellee’s father Robert Hudgins, and the friendship between their respective families.
In support of his argument, Charles raises multiple issues that allegedly put Judge Hannah’s impartiality into question. These include the trial court’s denial of appellant’s motion to dismiss for improper venue at the outset of the litigation; the alleged ex parte [ 7communications between the judge and Christina; the emails from Christina ostensibly indicating some relationship between her family and the judge’s family; the Facebook pages demonstrating “friends”; the fact that the judge had appointed Robert Hudgins executor in an unrelated case; the fact that the two men were among the codefendants in a federal lawsuit arising from the events in that case; the fact that Robert Hudgins initially represented Christina in this matter; the judge’s appointment of Dr. Spell-mann, who had previously received client referrals from Robert Hudgins, to perform a custody evaluation; and the trial court’s modification of the temporary visitation schedule over appellant’s objection. Charles contends that the appearance of impropriety permeated this case from the beginning, that the above instances demonstrate bias and prejudice, and that Judge Hannah should have recused sua sponte.
Rule 2.11 of the Arkansas Code of Judicial Conduct provides that a judge shall disqualify himself in any proceeding in which the judge’s impartiality might be reasonably questioned, including when the judge has a personal bias or prejudice concerning a party or a party’s lawyer. A trial judge is presumed to be impartial, and a party seeking disqualification bears a substantial burden to prove otherwise. Deere v. State, 59 Ark.App. 174, 954 S.W.2d 943 (1997). A trial court’s decision to recuse is within his or her discretion, and we will not reverse absent a showing of an abuse of discretion. Carmical v. McAfee, 68 Ark.App. 313, 7 S.W.3d 350 (1999). An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial judge. Id. Absent some objective demonstration by the appellant of the trial judge’s prejudice, it is the communication of bias by the trial judge that will cause us 18to reverse his or her refusal to recuse. Id. The mere fact of adverse rulings is not enough to demonstrate bias. Id.
On this record, we hold that Charles failed to meet his burden of demonstrating bias on the part of the trial judge. The trial judge’s denial of appellant’s motion to dismiss was based on testimony that Christina and D.S. lived in White County and thus that venue was proper, and the fact that the judge ruled against Charles on that issue was insufficient to demonstrate prejudice. The only allegation raised in Charles’s written motion to re-cuse was ex parte communications between Christina and the judge, but Christina denied any such communications and the original CD recording submitted by Charles in support of that allegation was unintelligible. Charles claimed to have an altered recording enhanced by a sound engineer to reduce background noise, but- the only copy of the enhanced recording was on Charles’s counsel’s cell phone, which counsel refused to offer as an exhibit. Moreover, the engineer did not testify and the enhanced recording was not authenticated, nor did appellant produce a transcript of the enhanced recording. Hence, the record is void of any intelligible ex parte communication. Although Face-book pages were proffered giving some indication of an acquaintance between the Hannah and Hudgins families, Christina testified that the families did not socialize and that her father was not friends with the judge. None of the instances identified by the appellant, taken individually or collectively, required recusal in this case. Given the presumption of Judge Hannah’s impartiality and the absence of objective proof that he was biased or prejudiced, we conclude that the trial court did not abuse its discretion in refusing to recuse.
1 flCharles next argues that the trial court erred in awarding custody of D.S. to Christina. We, however, do not agree.
Arkansas Code Annotated section 9-10-113(a) (Repl.2009) provides that an illegitimate child shall be in the custody of its mother unless a court of competent jurisdiction enters an order placing the child in the custody of another party. Brimberry v. Gordon, 2013 Ark. App. 473, 2013 WL 4748028. Section 9-10-113(b) provides that a biological father may petition the court for custody if he has established paternity in a court of competent jurisdiction. Id. Custody may be awarded to a biological father upon a showing that (1) he is a fit parent to raise the child; (2) he has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and (3) it is in the best interest of the child to award custody to the biological father. Ark.Code Ann. § 9 — 10—113(c).
In reviewing child custody cases, we consider the evidence de novo, but will not reverse a circuit court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Preston v. Preston, 2014 Ark. App. 58, 2014 WL 245783. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Id. This deference to the circuit court is even greater in cases involving child custody, as a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the -witnesses, their testimony, and the best interest of the child. Id.
Charles correctly asserts that he is a fit parent and has assumed responsibilities toward his child. The issue, then, was what was in the best interest of the child. Charles asserts that he showed that it was in D.S.’s best interest to be placed in his custody. Charles relies on |intestimony putting Christina’s mental stability at issue, as well as Christina’s testimony that she would allow Charles no -visitation beyond that ordered by the court. Charles also takes issue with the custody evaluation of Dr. Spellmann, and in particular Dr. Spellmann’s opinion that due to D.S.’s young age he needed mothering more than fathering. Charles cites Riddle v. Riddle, 28 Ark.App. 344, 775 S.W.2d 513 (1989), where we stated that the “tender years” doctrine, whereby a court presumes the mother to be a more suitable custodian of a child of tender years, has been abolished and that custody should be awarded solely in accordance with the best interest of the child without any gender-based preference.
We hold that the trial court did not err in awarding custody to Christina. There was evidence that Christina had been the primary caregiver during D.S.’s life and was able to provide a suitable home with help from family members to care for him. Although the relationship between the parties is acrimonious and Christina is not willing to allow any visitation beyond that ordered by the trial court, the testimony showed that Christina did comply with the court-ordered visitation schedule. And in the order being appealed Charles has been afforded liberal visitation with his child. Although Dr. Spellmann thought that D.S. needed mothering more than fathering, the trial court made no such finding. In both its ruling from the bench and in its written order, the trial court made its custody determination in part based on its finding that Christina had been the primary caretaker, which is a valid consideration in deciding custody. See Overstreet v. Overstreet, 2013 Ark. App. 710, 430 S.W.3d 857. On our de novo review of this record, we conclude that the trial court’s Infindings as to the best interest of the child and its award of custody to Christina were not clearly erroneous or clearly against the preponderance of the evidence.
Affirmed.
GLADWIN, C. J., and VAUGHT, J., agree.
. Charles subsequently filed a motion to disqualify Christina’s father as her counsel on the basis that Robert was likely to be a material witness in the case. The record shows that Robert never represented Christina at any hearings, and he signed his last pleading on January 26, 2012. After that, Christina was exclusively represented by another attorney. An order relieving Robert as Christina’s counsel was entered on May 31, 2012. | [
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BRANDON J. HARRISON, Judge.
h Linda Vondran and Richard Weathers appeal a Pulaski County Circuit Court order that terminated their parental rights to their child D.V. We affirm.
I. Background
This case started with a telephone call to the state child-abuse hotline. The anonymous caller alleged that Linda Vondran was mentally challenged and unable to care for D.V., a newborn. The Arkansas Department of Human Services (DHS) be gan to investigate these allegations in June 2012 while Linda and D.V. were still in the hospital under observation. DHS’s investigative report states that the hospital staff was concerned about Linda’s behavior and that she had not been feeding the baby. A few days later the hospital admitted Linda into its psychiatric ward because of suicidal ideations. DHS exercised an emergency hold on D.V. Linda’s mental condition and how it affects her ability to care for D.V. is a primary issue in this case. Also at issue here is the behavior of |2P.V.’s father, Richard Weathers. During its initial investigation, DHS learned from Linda that Richard was in prison because he was “mean to her” and had “pulled a knife” on her while she was pregnant with D.V.
The circuit court granted DHS’s ex parte request for emergency custody on 25 June 2012. Three days later the court entered an interim order, requiring that Linda submit to a psychological evaluation and random drug-and-alcohol screenings. The court also ordered DHS to perform DNA testing to see if Richard Weathers was D.V.’s father, and it prohibited Richard from contacting D.V.
In July 2012 the court adjudicated D.V. dependent neglected due to the emergency conditions that led to his removal from his mother’s custody. The court found that Linda was not emotionally equipped to care for D.V. and was admitted to a psychiatric ward because of suicidal ideations. The court found that, based on Linda’s testimony at the hearing, she was “unable to meet minimum requirements of being a parent due to low mental functioning (which was obvious to the Court), particularly given the fact that we are dealing with a newborn child who is 100% dependent on the caregiver to meet his every imaginable need.” The court’s concern for D.V.’s welfare was also fueled by its finding that Linda was a “domestic violence victim and intends to return to her abuser.” The court advised Linda that a reunion with D.V. “will be more difficult for her to achieve” if she remained with Richard, that she did not have an unlimited amount of time to pursúe reunification with D.V:, and that the court had “other means of achieving permanency ... which include[s] termination of parental rights and adoption.” The court granted Linda supervised visitation with D.V. but ordered that Richard have no |scontact with the child upon his release from prison. The court also set the case goal as reunification and approved DHS’s case plan.
At a November 2012 review hearing, the court determined that no progress had been inade. It found that Linda had subjected D.V. to “aggravated circumstances” based on Linda’s testimony and her psychological evaluation. The court was particularly concerned that Linda continued to express suicidal ideations and that she intended to reunite with Richard when he was released from prison. Dr. Paul Dey-oub, who conducted Linda’s psychological evaluation, wrote that Linda’s “IQ was 63, her adaptive ability is just as low, she has no concept how to live independently, how to take care of the baby, how to keep herself and the baby safe, or how to provide for this child ... she is not capable of taking care of this child and the baby should not be placed with her.” In a written order, the court found that DHS had made reasonable efforts to further the goal of reunification, including foster-care placement and board payment, referrals for counseling, a referral for DNA paternity testing, psychological evaluations, and a referral for parenting classes, but that these services were unlikely to result in a successful reunification because of Linda’s limited participation. The court ordered her to follow up on her individual counseling and “get whatever mental health services she can as she needs to be under regular mental health services.” The court also wrote: “the mother has her work cut out for her,” but that it intended to give her more time to try to reunite with D.V. The court’s order also stated that if Richard was determined to be the biological father of D.V., then DHS was to provide services for him too.
|4In December 2012, Linda’s court-appointed attorney moved the court to appoint Linda an attorney ad litem because of concerns about her low IQ and the results of Dr. Deyoub’s psychological evaluation. The court granted the request and appointed a attorney ad litem for Linda.
At the permanency-planning hearing in April 2018 the circuit court changed the case goal from reunification to adoption, concluding that there had been “a lack of material progress” and that a return of D.V. to his mother’s custody would be contrary to his welfare and not in his best interest. The court found that Linda had made a statement about intending to harm D.V. and reasoned that “[i]t appears to the Court that the mother is unable to take care of herself much less a child.”
The permanency-planning order stated that Richard Weathers is D.V.’s biological father and that DHS had submitted reports on Richard. The court considered the results of Richard’s psychological evaluation in its decision to change the case goal from reunification to adoption. Dr. Deyoub diagnosed Richard with borderline intellectual functioning and antisocial-personality disorder. The court relied on Dr. Deyoub’s conclusion that Weathers “is an antisocial individual with a substantial history of criminal activity, domestic abuse, incarceration, drug dealing, and infidelity. Almost every area of his life is affected by his antisocial personality and conduct. I could not think of a worse fate for [D.V.], at 9 months of age, than to be placed with either of these two people [Linda and Richard]. I am not recommending any services for Richard Weathers and recommend no contact with [D.V.] ”
|sThe court ordered Richard to continue in therapy and counseling, attend anger-management counseling at DHS’s expense, attend domestic-abuse counseling at DHS’s expense, attend parenting classes, submit to random drug-and-alcohol screens, clear up his criminal charges, and maintain stable and appropriate housing and income. The court ordered Linda to attend individual therapy and counseling, attend parenting classes, submit to random drug-and-alcohol screens, stay on her medications, and comply with medication management as recommended.
For DHS’s part, the court concluded that it had made reasonable efforts to provide reunification services between the parents and D.V. The court found that DHS had provided referrals for counseling, a referral for DNA paternity testing, psychological evaluations, referrals for parenting classes, worker visits, psychiatric and medication management, drug screens, daycare transportation, car seat, clothes voucher, and medical services.
DHS petitioned to terminate Linda Von-dran’s and Richard Weathers’s parental rights to D.V. in May 2018, and the court held a termination hearing two months later.
II. Termination Hearing
Five witnesses testified during the July 2013 termination hearing. Vicki Lawrence, Linda’s therapist, testified first. She said that Linda had an initial assessment in early May 2013 and had only attended one session since. Lawrence told the court that Richard had refused to bring Linda to therapy, which greatly limited her contact with Linda. The “number-one concern” Lawrence had for Linda was that she was in an abusive relationship with Richard and that she was scared to leave. Lawrence diagnosed Linda as a | fiphysical-abuse victim with major depression and borderline intellectual functioning. She said that Linda recognized that she was unable to take care of D.V. without help. Linda reportedly told Lawrence that she would not consider going to a battered women’s shelter but would consider an “adult-care situation.” Lawrence told Linda that the first step would be to “leave the abusive relationship.” Despite this advice, Linda told Lawrence that she had no immediate plans to separate from Richard.
Richard’s therapist, Kimberly White, testified too. White told the court that she discontinued couples counseling with Richard and Linda after two sessions because Richard was disruptive and inappropriate; she also said that Linda was afraid of Richard. White testified that Richard was dishonest, manipulative, played the victim, was extremely defensive, and did not take responsibility for his decisions. White summarized her time with Richard this way: “[H]is therapy was not successful.”
Shanesha Arbor, the DHS caseworker, also testified during the termination hearing. She said that Linda had visited D.V. consistently while he was in foster care. Linda had obtained a no-contact order after the 2012 knife incident but dropped it when she decided to move in with Richard. She then reportedly told Arbor that she wanted to leave Richard but could not. According to Arbor, Richard and Linda had been living together since March 2013 and they did not report truthfully about their living situation at the permanency-planning hearing. Arbor reported that the home that Richard and Linda shared was well maintained and appropriate, and both parents had adequate sources of income through disability payments.
17Arbor stated, without objection, “I have provided this family counseling, psychological evaluations, drug screens, approved foster home with board payment, day care, transportation, clothing voucher, medical, and DNA testing.” Arbor said that DHS did not believe that Linda is able to care for D.V. on her own because she didn’t seem to have anybody to support her, that the domestic violence between Richard and Linda would create an unstable environment for D.V., and that termination of their parental rights is in D.V.’s best interest. She also told the court that D.V. was an adoptable, normal one-year old child.
Linda testified. As a witness, she admitted lying to the court about, her living situation at the permanency-planning hearing. “I don’t know if it’s okay for [Richard] to hit me. I stay with him because I love him ... I don’t think I want to leave.” She spoke of her desire to parent D.V. but said she needed someone to show her how to change a diaper, how much to feed him, and “just somebody showing me.” She testified that Richard was not a danger to D.V., that she was okay living with Richard, and that she felt she could care for D.V. with some help.
Richard took the witness stand and denied physically abusing Linda. He also spoke of his desire to parent D.V. as he had his other nine kids, the oldest of whom is thirty. He testified that he had a good home and adequate income to care for D.V. He denied having any antisocial traits or anger-management issues. “I’m normal just like everybody else” and “[Linda] will say I’m mean, but it’s only for her best interests.” He acknowledged that Linda would need some “guidance” but believed that “both of us could raise the baby.” On cross-examination, Richard admitted that he pled guilty to | ^aggravated assault against Linda for wielding a knife during a dispute with her while she was pregnant, a plea for which he spent a year in prison. He also admitted returning to jail in 2013.
The court received Richard’s psychological examination as evidence at the termination hearing. That report states that the examiner was concerned that Richard wanted “to dominate a mentally retarded woman, 30 years younger than him.”
In closing arguments, Linda’s attorney told the court: “The only thing we’re asking is just a little more time to investigate possible placement of my client into an adult-services program for the possibility that she could have help in raising her son.” Linda’s attorney ad litem expressed grave concern about Linda’s physical safety and stated,
Your Honor, I can’t imagine that she would be able to take care of this baby in an abusive home without services— without the amount of services that she would need to protect both herself and this child. Sadly, I’m going to have to agree with the recommendation of the department for rights to be terminated. We don’t have the framework necessary to protect my client and this child.
Richard’s attorney asked the court to dismiss DHS’s petition and reinstate the case goal of reunification.
At the hearing’s conclusion, the court terminated Linda’s and Richard’s parental rights. It found clear and convincing evidence that D.V. had been adjudicated dependent-neglected, had continued out of the home for twelve months, and despite a meaningful effort by the Department to rehabilitate the parents and correct the conditions that caused the removal, those conditions had not been remedied. The court further found that after the original petition for dependency-neglect was filed, other issues arose that demonstrated D.V.’s return to his parents was contrary to his health, safety, or welfare and that Richard Land Linda had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate their circumstances. Finally, the court found that Richard and Linda had subjected D.V. to aggravated circumstances— namely, that there was little likelihood that services to the family would result in successful reunification.
For Linda, the court found that “the bottom line is that it is clear from Dr. Deyoub’s report as well as Ms. Lawrence’s report and testimony, that the mother could be given the rest of the time in the world to work on services, and still would not be able to rise to the level necessary to provide the minimum standard of care required to raise her child.” In particular, the court found that Linda intended to stay with an abuser and that dismissing the order of protection was further proof that she intended to remain in a harmful environment.
Richard, according to the court, “lacks credibility, has an extensive criminal history, and denies issues that demand resolution in therapy (specifically, domestic abuse) which works to prevent him from addressing his problems. Whether the Court gave him ninety days or a hundred-eighty days, it would make no difference.”
The court also found by clear and convincing evidence that it was in D.V.’s best interest to terminate Linda and Richard’s parental rights, and it specifically considered the likelihood that D.V. would be adopted and the potential harm to his health and safety if he were returned to his parents’ custody.
III. Legal Analysis
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents; but parental rights will not be enforced to the detriment or |indestruction of a child’s health and well-being. Pratt v. Ark. Dep’t of Human Servs., 2012 Ark. App. 399, 413 S.W.3d 261. DHS must prove the statutory grounds for termination of parental rights by clear and convincing evidence and that termination of parental rights is in the child’s best interest. Id. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction that the allegation has been established. Id. When the burden of proving a disputed fact is by clear and convincing evidence, we ask whether the circuit court’s finding on the disputed fact is clearly erroneous. Id. We defer to the circuit court’s assessment of witnesses’ credibility. Id. Resolving inconsistencies in testimony is best left to the circuit judge. Id. A finding is clearly erroneous when, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id.
A. Linda Vondran’s Argument
Linda specifically argues that the court was fully aware of her mental challenges yet did not ensure that she was offered reasonable accommodations under the Americans with Disabilities Act (ADA). Because DHS failed to provide her with meaningful services, Linda says, all three statutory grounds for terminating her parental rights are unsupported.
Linda acknowledges that she did not raise her ADA argument before this appeal but argues that it falls within the third exception to the contemporaneous-objection requirement set forth in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980) and Baker v. Arkansas Department of Human Services, 2011 Ark. App. 400, 2011 WL 2140380. The exception she presses in this appeal, the third Wicks exception, deals with a court’s duty to intervene, even without an objection, to correct a serious error. The serious error that Linda identifies is that ^neither DHS nor the court provided her with reasonable accommodations under the ADA. Linda cites Baker as authority that supports an application of the Wicks exception in this case. But this court, in Pratt v. Arkansas Dep’t of Human Servs., 2012 Ark. App. 399, at 13, 413 S.W.3d 261, 263 has already distinguished Baker: “the Wicks discussion in Baker arose from an earlier no-merit setting and stands only for the proposition that it may not be frivolous to argue that the Wicks exception to the contemporaneous-objection rule might apply in a termination case where an issue was not preserved.” Our supreme court has never applied a Wicks exception in a DHS termination case when the parents are represented by counsel.
A Wicks exception will not apply absent a flagrant error so egregious that the circuit court should have acted on its own initiative. Pratt, supra. To qualify for ADA accommodations in a DHS case, a parent must demonstrate that she has a mental impairment that substantially limits one or more of her major life activities. Sowell v. Ark. Dep’t of Human Servs., 96 Ark.App. 325, 329, 241 S.W.3d 767, 770 (2006); 42 U.S.C. § 12102(2) (2012). Linda requested some special services for adult-care living arrangements, but her request was not formally made until closing arguments at the close of the termination hearing — and at no point did either of her attorneys raise the ADA accommodations argument. Moreover, the circuit court did not ignore Linda’s mental deficiencies. The court specifically acknowledged them in its adjudication order. The court further acknowledged issues with Linda’s mental status by appointing her an attorney ad litem to represent her in addition to her appointed counsel. The, circuit court | i?did not act in a manner that flagrantly prejudiced Linda so as to justify us applying the third Wicks exception. See Pratt, supra.
Regarding inadequacy of the services DHS provided, Linda points us to her objection at the April permanency-planning hearing that DHS could not provide proof of a counseling referral. She also states that DHS “did virtually nothing to assist” her and that she should have received services from programs specifically geared toward individuals with mental disabilities. Linda did not object, during the termination hearing, to any DHS services-related issue. 'So any issue is waived. Gilmore v. Arkansas Dep’t of Human Servs., 2010 Ark. App. 614, 379 S.W.3d 501. And because Linda has not appealed the court’s permanency-planning order, any objection she made about the counseling referral in April is not preserved. Velazquez v. Ark. Dep’t of Human Servs., 2011 Ark. App. 168, 2011 WL 715659.
To the extent that Linda argues that DHS did not prove the first termination ground because it did not provide her with meaningful access to reunification services under Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(6), we affirm the termination on a different ground because proof of only one statutory ground is sufficient to terminate parental rights. Dawson v. Ark. Dep’t of Human Servs., 2011 Ark. App. 106, 391 S.W.3d 352. The statutory ground that we affirm is the “other factors” ground:
[Ojther factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.
Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Repl.2008).
|1sWe affirm the court’s termination of Linda’s parental rights under section 9-27 — 341(b)(3)(B)(vii)(<x). The court found that after DHS had taken custody of D.V., Linda intentionally dismissed the order of protection, “lied to the court,” moved in with Richard, and refused to leave even though the risk of harm was great. Linda was in an abusive, harmful relationship that she refused to leave even at the cost of not having her child returned to her. She acknowledged as much to the circuit court. She said, “I wouldn’t ask Richard to leave.” Therapist Vicki Lawrence told Linda that the first step to regaining custody of D.V. would be to “leave the abusive relationship” and provided her housing and adult-care options. Linda nevertheless told the court that she saw no reason to leave Richard. We affirm the court’s decision to terminate Linda’s parental rights on the statutory “other grounds” provision given this record.
In a footnote in her brief, Linda states that she does not challenge the court’s best interest finding on adoptability but “denies that D.V. would have been subject to potential harm if returned to her care after the offer of meaningful services.” No authority for this undeveloped proposition is provided, so we do not address it. See Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006). The court’s finding that a termination of Linda’s parental rights was in D.V.’s best interest is therefore affirmed.
B. Richard Weathers’s Argument
Richard argues that DHS did not prove that he failed to comply with the case plan and that DHS did not prove the statutory grounds needed to terminate his rights. He does not challenge the court’s conclusion that a termination was in D.V.’s best interest.
|14A court may terminate a parent’s rights even if the parent has complied with the case plan because parental rights will not be enforced to the detriment of a child’s health and well-being. Friend v. Ark. Dep’t of Human Seros., 2009 Ark. App. 606, 344 S.W.3d 670. The critical question is whether a parent’s completion of the case plan has achieved the goal of making the parent capable of caring for the child. Tucker v. Ark. Dep’t of Human Seros., 2011 Ark. App. 430, 389 S.W.3d 1. As we said earlier, DHS must prove by clear and convincing evidence at least one statutory ground in order to terminate Richard’s parental rights. Ark.Code Ann. § 9-27-341(b)(3)(B). It did so.
We affirm the court’s termination of Richard’s parental rights based on the court’s finding of aggravated circumstances. In our juvenile code, “aggravated circumstances” means that “a child has been abandoned, chronically abused, subjected to extreme or repeated cruelty, or sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification[.]” Ark. Code Ann. § 9-27-303(6) (Repl.2009); Ark.Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A)-(B)(i) (Repl.2009). Here, the circuit court focused on the last facet of aggravated circumstances; it concluded that there was little likelihood that the services to the family would result in successful reunification. Because a termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents, there must be more than a mere prediction or expectation by the circuit court that reunification services will fail. Yarborough v. Ark. Dep’t of Human Seros., 96 ArkApp. 247, 254, 240 S.W.3d 626, 630-31 (2006).
b,We hold that there was clear and convincing evidence that reunification services were unlikely to succeed. Richard never fully complied with the case plan because he refused to participate meaningfully in counseling and prevented Linda from receiving counseling. The court found that Richard had an unrealistic view of his own past and future capabilities, did not understand the significance of his violent tendencies, and refused to acknowledge that he had abused Linda. Richard’s therapist concluded that any attempt to counsel Richard was “not successful.” Dr. Deyoub did not recommend any services for Richard and opined that Richard should have no contact with D.V. The results of Richard’s psychological evaluation, his therapist’s testimony, and even his own testimony support the court’s finding that further services would not likely help Richard and that a termination was necessary to protect D.V.
The court also found that D.V. was likely to be adopted and that D.V. would be in danger if placed with Richard. Richard does not challenge these findings, and we affirm the court’s finding that terminating Richard’s parental rights was in D.V.’s best interest.
IV. Conclusion
The circuit court’s decision to terminate Linda Vondran’s and Richard Weathers’s parental rights as to D.V. is affirmed.
Affirmed.
WOOD and WHITEAKER, JJ„ agree. | [
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BART F. VIRDEN, Judge
| Appellant Frederick Fricks entered a conditional guilty plea in the Nevada County Circuit Court to offenses involving drugs and firearms. He was sentenced as a habitual offender to an aggregate term of thirty years’ imprisonment. On appeal, he argues that the trial court erred in denying his motion to suppress (1) evidence found in a search of his vehicle and (2) an incriminating statement he made while in custody. We affirm.
I. Suppression Hearing
Trooper Aaron Easley with the Arkansas State Police was patrolling Interstate 30 in a “stealth” car on April 22, 2014, at approximately 4:22 p.m. when he observed a black truck with a license-plate tag that he testified “didn’t look right.” Easley explained that laArkansas’s expiration tags are color coded and alternate every three years with yellow, blue, and red. Easley cited as an example that the tags in 2011 and 2014 were yellow. According to Eas-ley,. the “4” on the truck’s yellow, tag “looked a little funny.” When he ran the license plate, he discovered that the tags had expired in 2011. Easley then initiated a stop of the vehicle.
Easley made contact with Fricks, the driver of the truck. Easley relayed to Fricks that someone had taken a “magic marker” and changed the second “1” in “2011” to a “4”. According to Easley, Fricks did not have a driver’s license and said that he had borrowed the truck from a friend. When Easley entered Fricks’s name into NCIC (National Crime Information Center), he learned that Fricks had a warrant for a parole violation. Fricks informed Easley that he was on parole for a drug offense.- Easley confirmed the warrant and was advised to take Fricks into custody. Before the tow truck arrived, Easley and another officer searched the truck. Under the driver’s .seat, Easley found a Smith and Wesson handgun and a box of ammunition. Behind the passenger’s seat, he found a clear plastic bag containing what appeared to be marijuana and a set of scales.
Easley testified that he' completed a form ASP168 in connection With an inventory search at the tow yard about an hour after the initial search where he had secured the contraband mentioned above. Easley stated that he had decided to impound the vehicle as soon as he learned about Frieks’s warrant and reasoned that the vehicle was neither licensed nor insured. Easley said that, anytime the police remove a vehicle from the road, they conduct an inventory pursuant to police policy. The “Law Enforcement Policy Manual” on administrative inventory <of vehicles provides that •
ls[a]n' Arkansas State Police officer directing that a motor- vehicle be seized, towed or impounded as a consequence of an arrest or for other good cause shall conduct an administrative inventory of the motor vehicle pursuant to the following procedures: The Arkansas State Police officer should perform the inventory in the location at which the vehicle is seized, towed from or impounded unless limited by reasons, of safety or practicality. If the inventory is-not conducted prior, to the vehicle being transported, the inventory may be conducted within a reasonable time following seizure, tow ing or impoundment as reasonably necessary for safekeeping of the vehicle and its contents.
Easley said that typically he has the wrecker driver sign the form, and he then gives a copy to the wrecker driver. He said that, when the owner arrives' to pick up his vehicle, the wrecker driver obtains that person’s signature on the copy and mails it to Troop G. Easley testified that this did not happen in the present case because he did not receive the returned copy and could not locate the original.
Special Agent Corwin Battle with the Arkansas State Police testified that he made contact with Fricks at the jail. Although Battle went over a Miranda rights form with- Fricks, Fricks refused to sign it, and the -interview ended. According to Battle, it is common for officers to seize contraband prior to towing a vehicle. He stated that Easley transferred the items seized from Fricks’s truck to him, and he then accompanied Easley to the tow yard to conduct a more thorough search of Fricks’s truck. Easley did not have his inventory book with him in the stealth car, so Battle gave him a brand new book that Battle did not need. Battle said that he saw Easley fill out the inventory form and give a copy of it to the wrecker driver.
Detective Todd Lauterbach with the Hope Police Department testified that he went to the Nevada County jail to speak with Fricks after learning that a stolen gun had been found in Fricks’s vehicle. Lauterbach stated that Fricks told him that he had been given his_[¿Miranda rights but had not invoked his right to counsel. When Lauterbach asked to speak with him, Fricks refused. Lauterbach then informed Fricks that the Arkansas State Police was charging him with theft by receiving and that he could be charged by the Hope Police Department as well. Lau-terbach testified that Fricks then said that he did not remember where he had gotten the gun but that he thought he had bought it from someone in Hope.
Fricks agreed making the statements attributed to him by Lauterbach, but he testified that he had raised the possibility that police could have planted the gun in his truck. Also, he stated that Lauterbach had originally mentioned a burglary. Fricks and his father, the owner of the truck, testified to items of value that had been inside the truck. Fricks’s father testified that a chainsaw worth $500 to $1,000 was missing.
II. Standard of Review
When we review the denial of a suppression motion, this court makes an independent examination of the evidence based on the totality of the circumstances, and we will not reverse the trial judge’s decision unless it is clearly against the preponderance of the evidence. Cooper v. State, 2010 Ark. App. 539, 2010 WL 2612687. We defer to the superior position of the trial court to determine the credibility of witnesses. Bratton v. State, 77 Ark. App. 174, 72 S.W.3d 522 (2002).
III. Discussion
A. Inventory Searches
All warrantless searches are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest on a valid warrant. Bratton, supra. An inventory search is recognized as an exception. Id. Pursuant to this exception, police officers may [(¡conduct a war-rantless inventory search of a vehicle that is being impounded in order to protect an owner’s property while it is in the custody of the police, to ensure against claims of lost, stolen, or vandalized property, and to guard the police from danger. Id. An inventory search, however, may not be used as a guise for “general rummaging to discover incriminating evidence.” Id. The police may impound a vehicle and inventory its contents only if the actions are taken in good faith and in accordance with standard police procedures or policies. Id.
Fricks argues that this inventory search was improper because Easley did not follow police policy in several respects. First, Fricks contends that the State failed to produce the inventory form and did nbt call the wrecker driver to testify in order to corroborate testimony that he had in fact received the form. The failure to introduce the form at the hearing does not mean that Easley did not follow policy. Both Easley and Battle testified that the form was completed and a copy was given to the wrecker driver. The trial court could have believed this testimony such that the wrecker driver’s testimony was unnecessary.
Second, Fricks argues that Easley gave false testimony regarding where he had completed the inventory form. Easley initially said that he had completed it alongside the road, which the dash-cam video disproved, and later claimed that it had been completed at the tow yard. To the extent that Easley’s testimony differed from one hearing to the next, it was for the trial court to resolve any conflicting testimony. Bratton, supra. The testimony indicates that Easley secured the contraband prior to towing the vehicle and completed the inventory form when he conducted a more thorough search at the tow yard. Easley’s roadside search was limited by concerns about safety in that the officers were standing next | fito a busy interstate, which Easley recognized as dangerous on the dash-cam video. Further, Easley said that the inventory was conducted within an hour or so after the vehicle had been towed from the scene, which the trial court could have concluded was “within a reasonable time” pursuant to police policy.
Third, Fricks argues that neither Easley nor Battle could accurately identify items of value found inside the vehicle. Both officers testified to finding several noncon-traband items. Failure to recall every single item that was found in the absence of the missing inventory form does not mean that Easley disregarded police policy. Although Easley’s testimony differed from the testimony of Fricks’s father regarding the value he assigned to certain items, the policy manual does not say how officers are to determine value. Further, we note that Fricks’s father may file a complaint with the police regarding any missing items.
Next, Fricks maintains that the search was investigatory in that Easley ended .the search as soon as he found incriminating items and that the dash-cam video reveals Easley’s true motive when he said, “I just want to get [Fricks] gone so I can get in the vehicle. He’s been arrested for dope, dope, and dope. He’s been arrested for. carrying a weapon.” .
To suppress an inventory search, a defendant must show that the police officers were conducting the inventory search in bad faith for the sole purpose of collecting evidence. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). The presence of an investigatory motive, even if proved, does not invalidate an otherwise lawful inventory search. Bratton, supra. Easley’s comment does not reveal that his motive was solely investigatory or that the search was otherwise conducted in bad faith. Easley testified that he was “pretty sure” there was contraband in the vehicle given Fricks’s demeanor and the fact that he was sweating |7profusely. Easley further stated that Fricks was a large man and that he was afraid that the officers were “going to have a problem” with him if they discovered contraband in - his- presence. Just because Easley suspected that they might find incriminating items because of Fricks’s mention that his parole was related to drags does not invalidate the search. Bratton, supra.
Fricks also maintains that the search was not proper under Ark. R. Crim. P. 12.4 in that it was not a search incident to arrest. We need not address, this argument because we hold' that the evidence was seized in connection with a proper inventory search and that the trial court’s denial of Fricks’s motion to suppress was not clearly against the preponderance, of the evidence.
B. Custodial Statement
Fricks contends that pursuant to Ark. R. Crim. P. 4.5, no law-énforcement officer shall question an arrested person if he has indicated in any manner that he does not wish to be questioned. Fricks argues that he had made it clear to both Battle and Lauterbach that he did not want to be questioned and that “[o]nce the Appellant invoked his right to remain silent to Agent Battle he could not be questioned again by Detective Lauterbach.” Fricks argues that Lauterbach failed to read him his Miranda rights and that he did not immediately end the conversation and instead “continued to make statements” to him.
In determining whether a defendant’s custodial statement was spontaneous, we focus on whether it was made in the context of a police interrogation, meaning direct or - indirect questioning put to the defendant by the police- with the purpose of eliciting a statement from the defendant. Id. A suspect’s spontaneous statement while in police custody is Inadmissible, and it is irrelevant whether the statement was made before or after Miranda warnings because a spontaneous statement is not compelled or the result of coercion under the Fifth Amendment’s privilege • against self-incrimination. Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214. Here, Fricks’s statement was spontaneous and not in response to direct or indirect questioning by police. The trial court could have reasonably concluded that Lauterbach was only informing Fricks of possible charges that could be filed against him and not attempting to elicit an incriminating statement. We hold that the trial court’s decision was not clearly against the preponderance of the evidence.
Fricks further argues that his statement should be suppressed because it was not recorded pursuant to Ark. R. Crim. P. 4.7. The rule does not mandate the recording of all custodial interviews—it says “whenever practical,” and the lack of a recording is not considered in determining admissibility when what is involved is a spontaneous statement. Ark. R. Crim. P. 4.7(b)(2)(D). In any event, Fricks did not make this argument below and did not obtain a ruling on the issue. Therefore, it is not preserved for our review. Calfy v. State, 2015 Ark. App. 169, 2015 WL 1171917; Freeman v. State, 2012 Ark. App. 144, 391 S.W.3d 682.
Affirmed.
Abramson and Gruber, JJ., agree.
. Two suppression hearings were held approximately six months apart. Easley was the only witness at the first hearing, and the trial court denied Fricks’s motion to suppress. A second hearing was held after Fricks had obtained new counsel. At the second hearing, Easley, two other law-enforcement officers, Fricks, and Fricks’s father testified. In addition, a dash-cam video was played. The trial court again denied the motion'to suppress. | [
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ROBIN F. WYNNE, Judge.
111n this one-brief appeal, Kassandra Horton appeals from the circuit court’s order awarding grandparent visitation to appellee Rhonda Freeman, the mother of the minor child’s deceased father. She argues that (1) the trial court erred in awarding grandparent visitation over the objections of the parent; (2) even if the award of grandparent visitation is affirmed, granting appellee the same visitation as a non-custodial parent is excessive; and (8) the trial court “lacked subject matter or statutory jurisdiction” to make any determination concerning grandparent visitation because paternity had not been established by a court of competent jurisdiction. We affirm the award of grandparent visitation and reject the jurisdictional argument, but we reverse the amount of grandparent visitation and remand for the circuit court to reconsider the amount of visitation under the proper standards.
|p,On October 26, 2012, appellee filed a petition for paternity and for grandparent visitation with D.F., born July 23, 2009. In her response, appellant admitted that Dustin had acknowledged paternity of D.F. and that she had admitted under oath that Dustin was the biological father and received Social Security payments on behalf of D.F. A hearing was held on May 29, 2018. Appellee testified regarding her relationship with D.F. She stated that her son Dustin, appellant, and D.F. lived with her and her ex-husband at their home in Osceola from the end of September 2009 until they moved to Hot Springs in April 2010; they moved back in with her in June 2010 and stayed until December 2010. During the times that they lived with her, appellee cared for D.F. consistently. She stated that D.F. did not sleep upstairs with his parents because of the stairs, and she often cared for him when he awoke during the night or when his parents were out. During the day, appellee shared child-care responsibilities with appellant and Dustin. Appellee introduced numerous pictures of her and her family with D.F. She testified that appellant stopped letting her see D.F. in September 2012 after she and appellant got into an argument. Appellee described her frequent visits with D.F. after her son’s death and testified that she loved D.F. and he loved her; that she had the capacity to give D.F. love, affection, and guidance; and that if awarded visitation she would be cooperative. She testified that she was taking the prescription drug Xanax three times a day, that she had gotten a DUI in September 2011, that she spent the night at the hospital on her son’s birthday after his death because she took her medication and then drank four beers, and that she had paid a fine after being convicted of “laying |shands” on her ex-husband; however, she testified that appellant had never raised any of these as concerns prior to cutting off her visits with D.F.
Appellee’s son Justin testified to the close relationship between D.F. and his mother, as well as the rest of the family. He also testified that his brother and appellant lived at a house on Cherry Drive before moving to Hot Springs; he testified that they moved in with his mother when they returned to Osceola and lived with her six to nine months over different periods of time. Denise Ferguson, a close friend of appellee, and Peggy Clark, appel-lee’s sister, testified that appellant, Dustin, and D.F. lived with appellee during the times that appellee had testified to. Ap-pellee’s witnesses all echoed appellee’s testimony that she and D.F. had a close, loving relationship prior to that relationship being cut off by appellant.
Appellant and her uncle, John Horton; her mother, April Lamb; and her cousin, Dana Herriman all testified that appellant and D.F. had never lived with appellee. Appellant testified that D.F. is Dustin’s child and that she and Dustin broke up in June 2010. She stated that she would allow appellee back in D.F.’s life if she ever became stable again. She also testified regarding the reasons she did not think it was right for D.F. to be “constan-dy preached about his daddy.”
In an order entered June 3, 2013, the court granted appellee grandparent visitation and awarded her “visitation with the minor child consistent with the visitation chart currently in use in the Second Judicial District.” The court found that appel-lee had proved a significant and viable relationship with the child (crediting the testimony of appellee and her witnesses over that of appellant and her witnesses) and that it was in the child’s best interest to have visitation with appellee. The court addressed the allegations by appellant that appellee’s | Judgment was questionable due to her use of a prescription drug, a 2011 conviction for DWI, a misdemeanor conviction for battering a former boyfriend, and joking that she smoked marijuana; the court found that, while “[tjhese are not good things, ... these instances of bad behavior would not, of themselves, be a bar to the grant of [appellee’s] statutory right.”
Several posttrial motions were filed in this case. On June 17, 2013, appellant filed a motion for new trial under Rule 59, rehearing/amendment of findings under Rule 52, or to rule on all pending claims and/or to enter a certification under Rule 54(b). Appellee responded. Appellant filed a supplemental motion, which included an emergency motion to suspend visitation on the grounds that the child had been in the custody of appellee’s sister on a family vacation that appellee did not go on and that appellee had left the child in a vehicle unattended.
The court held a hearing on June 26, 2013, and entered an order on July 8, 2013. In the order, the court ruled on appellant’s jurisdictional claim but expressly reserved the remaining issues for a future hearing. Regarding appellant’s claim that the court lacked jurisdiction because paternity had not been established prior to the filing of the petition for grandparent visitation, the court ruled that appellee did not have to prove paternity because appellant had conceded it in her pleadings and in her testimony: Appellant filed a notice of appeal on August 7, 2013, in which she abandoned any pending but unresolved claims.
|BI. Award of Grandparent Visitation
First, appellant argues that the circuit court erred in finding that appellee overcame the statutory presumption that her (appellant’s) decision denying visitation was in the best interest of the child. She challenges both the court’s significant-and-viable-relationship finding and the best-interest finding.
Arkansas’s grandparent visitation statute, Arkansas Code Annotated section 9-13-103 (Repl.2009), provides in part:
(c)(1) There is a rebuttable presumption that a custodian’s decision denying or limiting visitation to the petitioner is in the best interest of the child.
(2) To rebut the presumption, the petitioner must prove by a preponderance of the evidence the following:
(A) The petitioner has established a significant and viable relationship with the child for whom he or she is requesting visitation; and
(B) Visitation -with the petitioner is in the best interest of the child.
(d) To establish a significant and viable relationship with the child, the petitioner must prove by a preponderance of the evidence the following:
(1)(A) The child resided with the petitioner for at least six (6) consecutive months with or without the current custodian present;
(B) The petitioner was the caregiver to the child on a regular basis for at least six (6) consecutive months; or
(C) The petitioner had frequent or regular contact with the child for at least twelve (12) consecutive months; or
(2) Any other facts that establish that the loss of the relationship between the petitioner and the child is likely to harm the child.
(e) To establish that visitation with the petitioner is in the best interest of the child, the petitioner must prove by a preponderance of the evidence the following:
(1) The petitioner has the capacity to give the child love, affection, and guidance;
|fi(2) The loss of the relationship between the petitioner and the child is likely to harm the child; and
(3) The petitioner is willing to cooperate with the custodian if visitation with the child is allowed.
We review domestic-relations proceedings, such as visitation requests, de novo on the record. Bowen v. Bowen, 2012 Ark. App. 403, 421 S.W.3d 339. In reviewing the circuit court’s order, we give deference to the circuit court’s findings and review those findings under the clearly erroneous standard, and we will not reverse unless we are left with a definite and firm conviction that a mistake has been made. Id. This deference is even greater in cases involving children, as a heavier burden is placed on the judge to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id. Further, when visitation is at issue, we will not reverse the circuit court’s decision absent an abuse of discretion. Id.
Appellant disputes the finding that ap-pellee had a significant, viable relationship with the child. Specifically, she asks this court to find her witnesses more credible than appellee’s regarding the amount of time appellee and the child spent together. While appellant and her witnesses testified that she and D.F. never lived with appel-lee, appellee and her witnesses testified that after D.F. was born in July 2009, appellant, her son Dustin, and D.F. all lived with appellee at her home in Osceola from the end of September 2009 until April 2010. During that time, appellee spent significant time caring for D.F. and developed a strong bond with him. Later, appellant, Dustin, and D.F. lived with appel-lee from June 2010 until December 2010. This testimony, which the trial court expressly credited, establishes that |7D.F. lived with appellee for more than six consecutive months. See Ark.Code Ann. § 9-13 — 103(d)(1)(A).
Appellant also disputes the finding that visitation with appellee is in the child’s best interest. Again, she points to the testimony presented by herself and her witnesses and argues that she “has perfectly valid reasons for limiting grandparent visitation.” Appellant asks this court to make a credibility determination that her witnesses should be believed over appellee’s, and also seems to argue that appellee’s taking prescription drugs and personal problems should bar a finding that it was in the child’s best interest to have a relationship with his paternal grandmother. Furthermore, she contends that the only evidence that loss of a relationship "with appellee would harm the child is appellee’s own testimony. Because it is the circuit court’s province to assess the credibility of the witnesses, not this court’s, we affirm on this point. See Bowen, supra.
II. Amount of Visitation
Next, appellant argues that, even if the award of grandparent visitation is affirmed, granting appellee the same visitation as a non-custodial parent is excessive. Appellant contends that the circuit court “abdicated any exercise of discretion in fashioning a schedule applicable to these parties” by “applying] a blanket rule for parents adopted by the judicial circuit.” At the hearing, appellee requested the standard visitation schedule that the circuit court uses, and asked that she have D.F. on the same weekends as her son Justin had his daughter so that the cousins could be together. The court granted her request without explanation.
■ 18The fixing of visitation rights is a matter that lies within the sound discretion of the circuit court. Morris v. Dickerson, 2012 Ark. App. 129, at 4, 388 S.W.3d 910, 912. Abuse of discretion is discretion applied thoughtlessly, without due consideration, or improvidently. Hollingsworth v. Hollingsworth, 2010 Ark. App. 101, at 1-2, 377 S.W.3d 313, 314. Here, we are not convinced that the circuit court exercised its discretion because it appears to have summarily awarded a grandparent the standard visitation schedule used by the judicial circuit for non-custodial parents. Therefore, we reverse and remand for the circuit court to determine what amount of visitation is reasonable under the circumstances.
III. Circuit Court’s Jurisdiction
Finally, appellant argues that the trial court “lacked subject matter or statutory jurisdiction” to make any determination concerning grandparent visitation because paternity had not been established by a court of competent jurisdiction. She concedes in her brief, as she did below, that appellee’s deceased son was D.F.’s biological father and appellee is a paternal grandparent; however, she contends that Ark.Code Ann. § 9-13-103(b)(3)’s requirement that “paternity has been established by a court of competent jurisdiction” in order for an illegitimate child’s paternal grandparent to petition for visitation rights means that the circuit court was without power to award -visitation in this case. Appellant cites no case on point for this proposition. The circuit court addressed this argument in its July 8th order, ruling that because appellant had conceded paternity there was no need for appellee to prove it.
Subject-matter jurisdiction is a court’s authority to hear and decide a particular type of case. Tripcony v. Ark. Sch. for Deaf, 2012 Ark. 188, at 4-5, 403 S.W.3d 559, 561. A court | Jacks subject-matter jurisdiction if it cannot hear a matter under any circumstances and is wholly incompetent to grant the relief sought. Id. Here, the circuit court had the authority to hear the petition for grandparent visitation. Without authority for the proposi tion that an order of paternity entered before the filing of a petition for grandparent visitation is required for the circuit court to acquire subject-matter jurisdiction, we conclude that the circuit court had subject-matter jurisdiction and therefore find no error.
Affirmed in part; reversed and remanded in part.
PITTMAN and BROWN, JJ„ agree.
. D.F.’s father and appellee’s son, Dustin C. Freeman, died on March 4, 2011. Appellee referred to her son as "Bugger” in her testimony.
. We note that an order granting or denying visitation under section 9-13-103 is a final order for purposes of appeal. Ark.Code Ann. § 9-13-103(0(4) (Repl.2009). | [
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LARRY D. VAUGHT, Judge.
[ | Rhonda Ducharme appeals the grant of Jo Lynn and Larry Gregory’s petition to adopt HD, Rhonda’s biological daughter. She argues on appeal that the trial court erred in finding that her consent to adoption was not required under Ark.Code Ann. § 9-9-220 (Repl.2009). Specifically, Rhonda argues that the circuit court erred in finding that she had failed — significantly without justifiable cause — to support HD for at least one year and that HD had been subjected to ongoing abuse and neglect that was irremediable. While we find merit in portions of Rhonda’s appeal, we ultimately affirm the court’s decision to grant the Gregorys’ petition to adopt HD.
There was evidence introduced at the adoption hearing to support the follow ing statements of fact. On October 25, 1999, HD was born to Rhonda, who at the time was unmarried and single. The natural father of HD is believed to be Julio Garcia, a Cuban national living in either Clearwater or Tampa, Florida, address unknown. However, because he was | ^neither listed on HD’s birth certificate nor married to Rhonda at the time of conception and has made no attempt to legitimize the child, the consent of HD’s presumptive natural father is not required for the adoption. Additionally, there have been no filings with the putative-fathers registry relating to the paternity of HD.
The Gregorys are not related to HD but were introduced into her life while Jo Lynn was serving as Rhonda’s Alcoholics Anonymous (AA) sponsor. On September 9, 2005, Rhonda executed and delivered a document consenting to Jo Lynn’s right to care for HD. The document specifically conveyed physical custody, authority for medical care, and discretion to direct the education of HD to the Gregorys. Over the years, the Gregorys would care for the child during periods where Rhonda was either hospitalized, incarcerated, or in treatment for issues resulting from her addiction to alcohol. On August 24, 2011, the Gregorys filed a petition to adopt HD, who also filed a consent document with the court stating that, likewise, she desired to be adopted by the Gregorys and have her name changed to Gregory.
The first hearing relating to the adoption of HD was held on April 5, 2013, where the court considered Rhonda’s request for visitation with her daughter. Laurie Joyner, Rhonda’s counselor, testified that Rhonda was getting help for her alcoholism and was working on improving her parenting skills. Although Joyner could not speak to Rhonda’s past, she testified that Rhonda had a proactive plan for the future and was getting the help needed to recover from her alcohol addiction and the resulting harm that it had caused HD.
At the hearing, HD testified that the last night she had spent with her mother was June 19, 2011, and that on that day Rhonda “had been drinking sherry cooking wine all day.” HD |awent on to state that she woke up that morning at 6:00 or 7:00 and fixed her (already intoxicated) mother breakfast. However, Rhonda remained on the floor and did not join HD for breakfast; she fixed her mother a “noonday” meal and fed it to her. According to HD, that evening, she fell asleep on the couch and around 9:00 p.m., Rhonda confronted her:
She was telling me to pick up my stuff. There wasn’t anything to pick up. She just kept yelling at me. She went into my room, took my clothes out of my closet, and threw them on the floor. She was saying, “Pick up your stuff.” I went back in and picked up everything and put it in the closet. My mom was in the room when I did that. My mom laid her hands on me. She dragged me down the hall by my hair. She was taking me around [eighteen] feet to the back bedroom. She made it back to the bedroom ... and tried to pin me to the wall. She had my hair when she drug me to the other bedroom, and then she took my hand and had my back against the wall. She fell. I got loose....
According to HD, at her mother’s request, the following morning, Jo Lynn came to pick her up. HD was present when her mom told Jo Lynn that HD was not cooperative and that Rhonda didn’t know how long she could restrain herself from putting HD’s head through a wall. HD also testified that Rhonda had physically abused her on at least eight other occasions and that the abuse had escalated from yelling to physical abuse.
HD testified that since she began living with the Gregorys she had spoken with her mom on the phone occasionally, but she did not want scheduled visitation with her mother because she feared for her life; but, she would consider a future relationship (as an adult) with Rhonda, if her mother remained consistently sober.
The court found that Rhonda had been an alcoholic since at least 2003 and denied the visitation request, with the caveat that the Gregorys provide HD with individual counseling and submit to criminal background checks and a home study. The court set the adoption for trial on July 19, 2013.
l4The court began the trial by finding that the Gregorys had raised the rebutta-ble presumption of neglect and abuse of HD in July 2012 and that Rhonda had failed to rebut that presumption. The court found that there had been permanent damage to the mother-daughter relationship and the cause of the harm was irremediable. This finding was based on testimony of witnesses who testified in several hearings during the pendency of the case.
First, the court relied on the testimony of Dena Fraker, who met Rhonda through AA activities in 2003 and 2004. She witnessed Rhonda drunk on several occasions during this time and observed the active role that the Gregorys played in caring for HD when Rhonda was unable to do so.
Michelle Bathon also testified that she had lived next door to Rhonda and HD for about six years between 2004 and 2009 and that she took care of HD when Rhonda was too sick from drinking “cooking sherry and other alcoholic drinks.” She also testified that she transported Rhonda to the emergency room “twenty times or more” when she was ill from alcohol. Bathon further testified that she “then started calling an ambulance to come and get [Rhonda] because she feared she was making it too easy for [Rhonda] to be drunk.” According to Bathon, she assisted in caring for HD when her mother would leave the child unattended for several days at a time and that Rhonda did not arrange care for HD and “just left her alone without care.” Finally, Bathon testified that occasionally Rhonda would have “scary” male visitors in the apartment and that Bathon was “afraid for HD.”
Next, the record shows that Laurie Beckman met Rhonda in 2010 at a dog-adoption event. Beckman allowed Rhonda and HD to move into her home that Christmas. However, 15while Beckman was away from home, Rhonda “stole her cooking sherry and wine and drank it all becoming very drunk on several occasions while in her home.” ' According to Beck-man, she would secrete her wine in a closet to prevent Rhonda from drinking it, but Rhonda eventually discovered it and consumed the stash. Shortly thereafter, Beckman called the police to have Rhonda removed from the home. Beckman also assisted HD with the move, because Rhonda was “too drunk” to help. Beckman also stated that, because Rhonda was either unable or unwilling to take HD to a doctor for medical treatment of a chronic intestinal problem, Beckman took on the responsibility. Finally, Beckman testified that on one occasion, after hearing “thuds, like someone hit the wall and stomping on the floor” she “went to see what was going on and observed [Rhonda] straddling HD on the bed and slapping her.” The incident was reported to the Arkansas Department of Human Services.
Jo Lynn Gregory testified that on June 19, 2011, after Rhonda had been drinking and became engaged in a physical altercation with HD, Rhonda called Jo Lynn and instructed her to come and get HD “before I put her head through the wall.” Jo
Lynn further stated that after the June episode, HD asked the Gregorys to adopt her and had not changed her mind since, testifying two separate times that she wished to be adopted by the Gregorys.
Sandra Allred also provided evidence relating to the adoption. According to All-red, HD was mentally healthy and did not require any therapy — making good grades, living in a good environment, where she is glad to be and wants to remain. Martha Wells, a licensed social worker and home-study specialist, reported that HD was healthy and content in her present surroundings and that the stability should be maintained.
IfiThe trial court agreed, and found that the adoption was advisable and in HD’s best interest. On April 4, 2013, the court granted the adoption and ordered that HD be issued a new birth certificate reflecting Gregory as her surname. It is from this order that Rhonda now appeals. She argues that the trial court erred by allowing her biological child to be adopted by the Gregorys without her consent.
In adoption proceedings, we review the record de novo, but we will not reverse the lower court’s decision unless it is clearly erroneous or against a preponderance of the evidence, after giving due regard to its superior opportunity to determine the credibility of the witnesses. Chrisos v. Egleston, 7 Ark.App. 82, 644 S.W.2d 326 (1983). We have said that in cases involving minor children a heavier burden is cast upon the court to utilize to the fullest extent all its power of perception in evaluating the witnesses, their testimony, and the children’s best interest; that the appellate court has no such opportunity; and that we know of no case in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as one involving minor children. In re Adoption of J.L.T., 31 Ark.App. 85, 788 S.W.2d 494 (1990). When the issue is one of terminating parental rights, the appellate courts have referred to the “heavy burden” upon the party seeking to terminate the relationship. Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984). Adoption proceedings are in derogation of the natural rights of parents, and statutes permitting such are to be construed in a light favoring continuation of the rights of natural parents. Id. at 195, 680 S.W.2d at 708.
As adoptions were unknown to the common law, they are governed entirely by statute. Irvan v. Kizer, 286 Ark. 105, 689 S.W.2d 548 (1985). Our state statutes distinguish between two 17methods by which a child may be adopted: 1) the relinquishment of the right to consent to adoption to a third party, embodied in Arkansas Code Annotated section 9-9-220, and 2) direct consent to adoption by an individual, embodied in section 9-9-208. These two provisions are mutually exclusive, in that they address separate methods by which a child may be adopted and provide different means by which the relinquishment of consent or direct consent may be withdrawn.
Here, the trial court relied on section 9-9-220(c)(2)(B) when dispensing with Rhonda’s right to consent to the adoption. This provision states that “the relationship of parent and child may be terminated by a court order” on the following grounds:
(1) Abandonment as defined in § 9-9-202(7).
(2) Neglect or abuse, when the court finds the causes are irremediable or will not be remedied by the parent.
(B) If the parents have attempted to remedy the causes but have failed to so within twelve (12) months, and the court finds there is no reasonable likelihood the causes will be remedied by the eighteenth month, the failures shall raise the rebuttable presumption that the causes will not be remedied.
According to our statutes, “neglect” means “the failure or refusal, including acts or omissions, of a person legally responsible for the care and maintenance of a child” including failure to provide “necessary food, clothing, shelter, and education required by law, or medical treatment necessary for the child’s well-being.” Ark.Code Ann. § 9 — 9—202(8)(a). Further, “abuse” means “any injury” that is “inflicted by a person upon a child other than by accidental means.” Ark.Code Ann. § 9-9-202(10).
Unfortunately, in this case, there is more than ample evidence that for at least nine years (from 2003 until 2012) Rhonda was addicted to alcohol, and as a result HD was abused and [ ¿neglected for most of her natural life. While the record suggests that Rhonda has managed to be free of alcohol dependence since February 2012, we are convinced that the damage caused to HD from nearly a decade of abuse and neglect cannot be undone by a short bridge of sobriety. HD’s testimony was compelling, and she presented as an extraordinarily mature teenaged girl. She conveyed concern for her mother, coupled with fear for her own life and well-being. She expressed a desire for present-day stability but left open the door for a future, adult relationship with her mother. Based on the credible testimony of HD, which was corroborated by multiple witnesses, we cannot disagree with the trial court’s conclusion that Rhonda failed to rebut the presumption that her consent to the adoption is not required based on her abuse and neglect of HD.
We do, however, take issue with the trial court’s analysis and conclusions of law related to Rhonda’s alleged failure to support HD for a one-year period. Specifically, the trial court’s reading of Fox v. Nagle, 2011 Ark. App. 178, 381 S.W.3d 900, is incorrect. Although not essential for the resolution of this case, we point out the trial court’s error to clarify our holding. In calculating the one-year period of nonsupport that was required to trigger a second ground for a non-consent adoption of HD, the trial court stated that “the one-year period set out may be any one-year period, not merely the one-year period preceding the filing of the adoption.” This is incorrect. The statutory period can only be any one-year period that accrues preceding the filing of the adoption petition. In re Adoption of SCD, 358 Ark. 51, 57, 186 S.W.3d 225, 228 (2004).
1 ¡/Therefore, we affirm the trial court’s decision to grant the adoption of HD to the Gregorys without Rhonda’s consent based solely on the ground that HD suffered irremediable abuse and neglect and the adoption is in her best interest.
Affirmed.
WYNNE and WHITEAKER, JJ., agree. | [
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WAYMOND M. BROWN, Judge.
hln this ordinary-negligence case, Sarah and James Brantley appeal from the Benton County Circuit Court’s denial of their motion for a new trial following a jury’s verdict in favor of appellees Diane Wyatt and Northwest Arkansas Hospitals, LLC (“Northwest”). The circuit court had granted a directed verdict in favor of separate appellees Dr. Scott Smith and Pinnacle Women’s Health Care, PLC, at the close of the Brantleys’ case, and this decision was also at issue in the motion for new trial. The Brantleys argue two main points for reversal of both the directed verdict and the jury’s verdict. We affirm in part and reverse and remand |2in part.
Sarah Brantley was a patient at Northwest in Bentonville for a Caesarian section. After the delivery, an incident occurred where she fell from the operating table while hospital staff were attempting to move her to a gurney for transfer.
The Brantleys filed suit against Northwest, alleging that an unknown nurse or nurses were negligent in causing Brant-ley’s injuries and damages. Northwest denied the allegations.
During discovery, nurse Diane Wyatt was shown in a hospital-incident report as being responsible for the accident. However, Wyatt claimed in her deposition that Dr. Smith pushed Sarah Brantley off the table, causing the fall.
As a result of this testimony, the Brant-leys filed an amended complaint that identified Wyatt as the nurse responsible for Sarah Brantley’s fall. In addition to the allegations against Northwest, the amended complaint also added several entities including Wyatt, Dr. Smith, Pinnacle Women’s Health Care, PLC, and John Does 1-4 as defendants. The allegations against Wyatt and Dr. Smith were stated in the alternative. Wyatt and Northwest separately responded to the amended complaint and denied liability. Dr. Smith filed an answer and denied liability.
Prior to trial, the Brantleys filed a motion seeking a ruling that, due to the nature of Sarah Brantley’s injuries, no expert testimony was necessary. The court granted the motion, finding that the nature of the injuries was within the jury’s common knowledge.
The case proceeded to a jury trial and lasted several days. In opening state ments, the | ^Brantleys’ attorney argued that it was only during Wyatt’s deposition that they learned that Wyatt was claiming that Dr. Smith had pushed Sarah Brantley off the table and that Smith was brought into the case so that the jury could determine who was telling the truth about the incident. Counsel also argued that Wyatt’s claim that Sarah Brantley was gently lowered to the floor was “preposterous” but that it was the jury’s prerogative as to whom to believe.
At the close of the Brantleys’ case, Dr. Smith moved for a directed verdict, arguing that there was no substantial evidence to support the allegation that Dr. Smith had pushed Sarah Brantley off the table. Dr. Smith further argued that the only evidence that Dr. Smith had any role in the fall was the testimony of nurse Wyatt, which he contended was based on assumption, conjecture, and speculation. The circuit court agreed and granted a directed verdict in favor of Dr. Smith and Pinnacle. An order memorializing this ruling was entered during the trial.
At the conclusion of the evidence, the case was submitted to the jury. Eleven members found for Wyatt, and the jury was unanimous in finding for Wyatt on James Brantley’s derivative claim. The circuit court entered judgment on the jury’s verdict.
The Brantleys timely filed their motion for new trial and argued that they were entitled to a new trial because the directed verdict in favor of Dr. Smith was an irregularity that prevented them from having a fair trial, that the verdict was contrary to the preponderance of the evidence, and that it was an error of law objected to by the Brantleys. The circuit court denied the motion for new trial and this appeal followed.
Our supreme court clarified the appellate standard of review for the various motions Rsuch as a motion for directed verdict, a motion for judgment notwithstanding the verdict, and a motion for new trial as follows:
A trial court is to evaluate a motion for directed verdict or a motion for judgment notwithstanding the verdict by deciding whether the evidence is sufficient for the case to be submitted to the jury; that is, whether the case constitutes a prima facie case for relief. In making that evaluation, the trial court does not weigh the evidence; rather, the trial court is to view the evidence in a light most favorable to the party opposing the motion. To the contrary, in evaluating the motion for new trial under Rule 59(a)(6), the trial court must determine whether the verdict or decision is clearly contrary to the preponderance of the evidence. In examining that motion, the trial court is permitted to weigh the evidence. On appeal from the denial of any of these motions, the appellate court affirms the verdict if it is supported by substantial evidence.
Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. A motion for directed verdict should be denied when there is a conflict in the evidence, or when the evi dence is such that fair-minded people might reach different conclusions.
For their first point, the Brantleys argue that the circuit court erred in granting the directed verdict in favor of Dr. Smith. They contend that Diane Wyatt’s testimony was sufficient to get their claim against Dr. Smith to the jury. We agree and hold that the court 15erred in directing the verdict.
In making the motion for directed verdict, counsel for Dr. Smith argued as follows:
So the only evidence that the jury has heard upon which they could return a verdict against Dr. Smith and Pinnacle is the testimony of Nurse Wyatt. And I’m sure the Court recalls her testimony where she first said that Dr. Smith shoved Mrs. Brantley. When pressed by both [the Brantleys’ counsel] and by me, she admitted that she never saw Dr. Smith lay a hand on Mrs. Brantley. She never saw him touch her. And her words were, “I assumed that Dr. Smith had pushed her due to the physics of things.”
Counsel later added that Sarah Brantley testified that she never felt a shove or a push. The Brantleys’ attorney responded by arguing that Wyatt testified that she did not cause Brantley to fall in any way, and that Dr. Smith had to have been the one to push her off the table because nobody else touched her. Counsel acknowledged that there were some challenges to Wyatt’s observations but argued that it was the jury’s province to determine whether to believe her version of the facts.
After considering the arguments, the circuit court ruled as follows:
I don’t think there is any substantial evidence that Dr. Smith had anything to do with this occurrence. As [the Brant-leys’ counsel] points out, the only evidence or testimony to that effect is Ms. Wyatt’s. Not even [Sarah Brantley], herself, believes that Dr. Smith had anything to do with that. Your Motion for a Directed Verdict is grantedf.]
In evaluating a motion for directed verdict, the circuit court may not weigh the evidence or determine the credibility of witnesses, as these matters are within the sole province of the jury. In Long, our supreme court held, based on comments made by the trial court, that the trial court had improperly weighed the credibility of witnesses in granting a | (¡directed verdict in a capital-murder case. The supreme court said that the trial court pointed out numerous inconsistencies in various witnesses’ testimonies and then concluded that the jury would have to engage in too much speculation and conjecture to find appellees guilty of the crimes charged. The circuit court’s comments in this case also crossed that line.
It is important to recall that the circuit court was to review the evidence in the light most favorable to the Brantleys. The focus on Wyatt’s testimony that she “assumed” Dr. Smith pushed Brantley too hard is misplaced because Wyatt clearly testified that Dr. Smith did, in fact, push Brantley off the table. Her testimony about her assumption goes to the manner in which Dr. Smith caused Brantley to fall, not whether he was the cause of her fall. In other words, Dr. Smith caused Brantley to fall from the table either by pushing her too hard or by lifting her too high with the roller board. Likewise, the testimony that Wyatt did not see Dr. Smith place his hands on Brantley goes to the weight to be given her testimony. Another matter for the jury to resolve was the conflict in the testimony between Wyatt and Brantley over whether Dr. Smith pushed Brantley at all.
There was substantial evidence to support a finding that Dr. Smith was negligent. However, the circuit court found that same evidence to be insubstantial after making a credibility determination. Therefore, the directed verdict in favor of Dr. Smith was in error and we reverse.
Having determined that the circuit court erred in directing the verdict in favor of Dr. |.7Smith, the question becomes what is the appropriate remedy. The Brantleys moved for a new trial as to both Dr. Smith and Wyatt, asserting that the erroneous directed verdict enabled Wyatt to make an improper “empty chair” argument to the jury. This error, according to the Brantleys, entitled them to a new trial as to both defendants under Ark. R. Civ. P. 59(a)(1), (8). Wyatt argues that a new trial is not warranted as to her because there is substantial evidence to support the jury’s verdict and, alternatively, that the Brantleys waived the argument by failing to object below. Dr. Smith took no position on this issue, either in his brief or at oral argument. We agree with Wyatt that the issue has been waived.
After the circuit court indicated that it was going to grant the motion, Wyatt’s attorney pointed out that a witness was going to testify for Wyatt that Dr. Smith did push Brantley off the table. Wyatt also argued that the court should not grant the directed verdict in favor of Dr. Smith if a witness was going to testify for Wyatt that Dr. Smith did, in fact, push Brantley off the table. The court ruled that the directed verdict would stand and that there would be no testimony that Dr. Smith caused the accident. Following a discussion as to how the court was going to advise the jury that Dr. Smith had been dismissed, Wyatt further argued that the court’s telling the jury that Dr. Smith was not responsible was prejudicial and incorrect. The court agreed and allowed Wyatt to elicit testimony blaming Dr. Smith for the accident. Counsel for the Brantleys told the court that there was an agreement between him and Wyatt’s attorney that there would be no objection if Wyatt chose to present testimony and argument blaming Dr. Smith. There was no further mention of the “empty chair” defense until the Brantleys filed their motion for new trial and supporting brief.
bWe do not consider arguments that were raised for the first time in a motion for a new trial. Moreover, an appellant may not complain on appeal that the circuit court erred if he induced, consented to, or acquiesced in the circuit court’s position. Therefore, we cannot say that the circuit court erred in denying the Brantleys’ motion for a new trial as to Wyatt and Northwest.
Affirmed in part; reversed and remanded in part.
WALMSLEY J., agrees.
WOOD, J., concurs.
. For convenience, Dr. Smith and Pinnacle Women’s Health Care will be collectively referred to as Dr. Smith.
. The John Does were later dismissed.
.Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 739, 120 S.W.3d 61, 66-67 (2003) (citations omitted).
. The Medical Assurance Co. v. Castro, 2009 Ark. 93, 302 S.W.3d 592.
. Id.
. Id.
. State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992).
. Id. at 252, 844 S.W.2d at 305.
. Tucker, supra.
. Herrington v. Ford Motor Co., 2010 Ark. App. 407, 376 S.W.3d 476.
. Gray v. Moreland, 2010 Ark. App. 207, 374 S.W.3d 178. | [
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RHONDA K. WOOD, Associate Justice
This appeal arises from a dispute involving the restoration of a 1968 Pontiac Firebird. The car owner sued' the body shop that did the repairs for, among other things, breach of express warranty, breach of implied warranty, money had and received, and conversion. The circuit court' ruled that the breach of warranty claims failed for lack of notice and ruled that the other claims failed for lack of proof. We affirm the circuit court’s judgment.
Facts and Procedural History
Ashley Hartness Wanted to restore his 1968 .Pontiac Firebird. He found a body shop to do the work: Restoration Plus, which was owned by Rick Nuckles: Hartness and Nuckles entered into an oral arrangement. Nuckles agreed to give the car a new paint job, perform body work, and install a new electrical system. Hartness would purchase and provide the new parts as needed, while Nuckles and his employees would provide ■ the services. Hartness claimed that Nuckles promised to do “Barrett-Jackson” or show-car Equality work. At trial, Nuckles adamánt ly denied having made any such representation. Even so, it is undisputed that the car entered the Restoration Plus body shop in May 2007.
Over the course of the next two and a half years, Nuckles submitted over nineteen invoices to Hartness, which he paid in cash. Hartness also took the car for a number of test drives and gave Nuckles feedback on the progress and quality of the work. Hartness picked up his car in December 2009, believing the restoration was complete. He returned the car on one more occasion to Nuckles for further repairs. After these final repairs, Hartness picked up and kept the vehicle. Despite deep dissatisfaction with the restoration, he did not notify Nuckles of any further concerns with the . quality of the work until filing a lawsuit against him in September 2012.
Hartness alleged a number of causes of action in his complaint: breach of express warranty, breach of implied warranty, money had and received, conversion, fraud, deceit, and false representation. A bench trial was held. Hartness introduced pictures of his car that he claimed were taken shortly after the car left the body shop. A number of defects were apparent from the pictures, including chipped paint, misaligned doors, and overall shoddy workmanship. Nuckles testified, however, that there was no way the car looked as represented in the pictures when it left the body shop.
The circuit court did not resolve the factual dispute regarding the existence of an express or implied warranty. Instead, the court' found that Hartness- failed to comply with the notice requirement of the Uniform Commercial Code (UCC), which requires a party suing on -a'warranty to notify the breaching party before -filing suit. Ark. Code Ann. § 4-2-607(3)(a) (Repl. 2001). The'court also rejected the remaining claims. Hartness appeals, |aarguing that the UCC-notice requirement applies only to warranties for goods; because his warranty was for services, the notice requirement shouldn’t apply. Hartness also argues that the court should have awarded him damages on his money-had- and-received and conversion claims. We accepted certification from our court of appeals because the issue regarding, notice is one of first impressioij. Ark. Sup. Ct. R. 1-2(b)(1) (2015). ,
Express and Implied-Warranties
We first address whether giving notice is a prerequisite to filing a breach-of-warranty lawsuit in non-UCC cases, As an initial matter, this court has never explicitly ruled whether express and implied warranties apply in a contract for services. It’s true that our commercial code includes express and implied warranties for the sale of goods. Rut outside the new-home construction context, we have never extended implied warranties to contracts that are exclusively for services. We have recognized an express warranty in a services case, but in that particular case, such a warranty was specifically authorized by statute.
The circuit court never ruled whether express and implied warranties applied to a contract to restore an automobile. The court overlooked this preliminary issue and instead addressed whether the notice requirement was satisfied." Since the court did not directly rule Lon the existence of the warranties, nor was it addressed on appeal, the issue is not before us. See Gwin v. Daniels, 357 Ark. 623, 184 S.W.3d 28 (2004) Furthermore, this is a court of appellate jurisdiction, and we do not decide issues not directly or indirectly presented in or decided by the trial court. Id. In any event, it would be premature for this court to decide whether express and implied warranties attach as a matter of law in a contract for ' services; The parties never briefed the issue, whicK has far-reaching implications. Commentators and other jurisdictions are split on whether warranties should apply when the contract is for services rather than goods. Thus,, our discussion below is limited to whether there is a notice requirement if such warranties exist.
Hartness’s argument regarding notice has two components. First, he argues that UCC notice was not required when the contract was for services. Second, he argues that even if , notice was required, his notice was sufficient. The first issue is one of law, which we review de novo. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844. The second issue is one of fact, which we review for clear error. Ark. R. Civ. P. 52(a). Again, taking no position on | ¿whether breach of warranty claims should even exist for a contract that is exclusively for services, we hold that if such warranties do exist, the UCC notice requirements apply.
Under Arkansas’s Uniform Commercial Code, a buyer of goods “must within a reasonable time after he discovers or should have discovered any breach notify the seller of the breach or be barred from any remedy.” Ark.Code Ann. § 4-2-607(3)(a). “[T]he giving of reasonable notice is a condition precedent- to recovery under the provisions of the commercial code and ... the giving of notice must be alleged in the complaint in order to state a cause of action.” Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 797, 888 S.W.2d 303, 305 (1994). One purpose of the notice requirement is to give the seller an opportunity to reduce his damages by curing thé defect. Id. Whether notice under this subsection is sufficient and given in a reasonable amount of time is generally a question of fact. 18 Richard A. Lord, Williston on Contracts § 52:44, 251 (4th ed. 2001); see also AMI — Civil 2507 (2015) (including as an element óf a breach of warranty cause of action whether notice was given in a reasonable time).
This court has often looked to the UCC for guidance on contract principles by analogy. See Graham Const. Co. v. Earl, 362 Ark. 220, 208 S.W.3d 106 (2005). There, we held that an express warranty in a contract for services (namely, construction of a home) takes precedence over implied warranties oh the samé subject. In reaching this conclusion, we looked to the UCC, stating that “[ajlthough the statute is inapplicable to the present cáse because [the statute]. involves' the sale of goods ... the principle should nevertheless apply.” Id. at 229, 208 S.W.3d at 111. We did the same thing in Haase v. Starnes, noting that the UCC “provides guidance on contract principles by analogy.” 323 Ark. 263, 272, 915 S.W.2d 675, 680 (1996). Our court of appeals also has relied on the UCC to impose a notice requirement in breach-of-warranty cases involving the construction of a new home. See Cinnamon Valley Resort v. EMAC Enters., Inc., 89 Ark. App. 236, 202 S.W.3d 1 (2005). Therefore, we hold that if an express warranty or an implied warranty is created in a contract for services, the UCC notice requirement from Ark. Code Ann. § 4-2-607 applies. That is, before filing a lawsuit, a person alleging breach of warranty must give the breaching party reasonable notice or be' barred from any remedy. This holding vindicates the purpose of the notice requirement, which is to allow the opposing party ’an opportunity to reduce his damages by curing the defect. It is also in accord with our state’s well-established practice of reasoning to the UCC by analogy in contracts for services.
Turning to the facts of this case, we hold that the circuit court’s ruling that Hartness failed to give notice of the breach was not clearly erroneous. The testimony at. trial indicated that the -first notice Nuckles received about his alleged breach of a warranty was in the complaint, which was filed thirty-three months after Hartness picked up the vehicle from the body shop and after he had driven the car for almost 1000 miles. This was an unreasonable amount of time. See Mozark Fire, 318 Ark. at 797, 888 S.W.2d at 306 (holding that a second amended complaint, in itself, was insufficient statutory notice for a breach-of-implied warranty claim). Reasonable notice by Hartness would have informed Nuckles exactly how the vehicle failed to live up to Hartness’s expectations. Notice also would have given Nuckles an opportunity to cure any defects and would have allowed him to mitigate any damages. It. also would have given both parties an opportunity to document the 17condition of the car once the restoration was complete. We therefore affirm the circuit court’s ruling that Hartness’s claims for breach of warranty failed for lack of notice.
Money Had and Received (Unjust Enrichment)
Hartness’s next argument is that the court shoüld have granted him relief on his claim for money had and received. An action for money had and received provided the foundation for the doctrine of unjust- enrichment, see Frigillana v. Frigillana, 266 Ark. 296, 307, 584 S.W.2d 30, 35 (1979), and the two actions are essentially the same. See First Nat’l Bank of Dewitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005); Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21, 36 (defining an action based on unjust enrichment identically to one for money had and received). Under the principle of unjust enrichment, a “person should not be permitted unjustly to enrich himself at the expense' of another, but should be required to make restitution of or for, property or benefits received, retained, or appropriated.” Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598, 612, 210 S.W.3d 101, 112 (2005).
Here, the circuit court denied Hartness’s claim for unjust enrichment be cause he presented no evidence regarding his “damages,” ruling that any award would require speculation. Hartness argues on " appeal that this ruling was made in error, highlighting multiple pieces of evidence from trial that support his claim for “damages.” For example, Hartness argues that he submitted evidence regarding the amount it would cost to repair the | «vehicle to its bargained-for condition. In short, Hartness argues that he was entitled to recover based on unjust enrichment because he proved expectation damages.
However, a party is not entitled to expectation damages for unjust enrichment; instead, he is-entitled to restitution. “[SJometimes courts use the term damages when they mean restitution ... [b]ut ... the damages remedy and the restitution remedies are always conceptually distinct.” 1 Dan B. Dobbs, Law of Remedies: Damages-Equity-Restitution § 4.2(3), 581 (2d ed. 1993). “To measure damages, the courts look at the plaintiffs loss or injury; to measure restitution, the courts look at the defendant’s gain or benefit.” Id. A claimant seeking restitution for unjust enrichment can generally recover the value of the benefit conferred upon the party unjustly enriched. See Sanders v. Bradley Cnty. Human Servs. Pub. Facilities Bd., 330 Ark. 675, 956 S.W.2d 187 (1997). The claimant’s burden is to “produce evidence permitting at least a reasonable approximation of the amount of the wrongful gain.” Restatement (Third) of Restitution and Unjust Enrichment § 51 (2011). “If the claimant’s evidence will not yield even a reasonable approximation, the claim of unjust enrichment is merely speculative, and disgorgement will not be allowed ... [and] the claimant’s burden of proof, so described, is ordinarily met as soon as the claimant presents a coherent theory of recovery in unjust enrichment.” Id. at § 51 cmt. i; accord El Paso Prod. Co. v. Blanchard, 371 Ark. 634, 647, 269 S.W.3d 362, 373-74 (2007) (reversing award of restitution for unjust enrichment because award was speculative).
At trial, Hartness failed to present evidence of a reasonable approximation of Nuckles’s wrongful gain. Instead, he focused on the how much it would cost to repair his vehicle to its bargained-for condition. This is not a theory for recovery in unjust enrichment, |3and there was no competent evidence about what gains Nuckles received from the transaction that were unjustified. Because there was no evidence regarding the amount of Nuck-les’s wrongful gain, we affirm the circuit court’s ruling that Hartness could not recover for unjust enrichment.
Conversion
The final issue is conversion. Hartness argues that the circuit court should have granted him. relief on this claim because. Nuckles kept the old parts from the car and never returned them. The court denied this claim because,-, it found, the old parts had been damaged and were generally worthless. The. court ruled that Nuckles simply discarded the old parts near the shop, because he did not see any further use for them.
Cónvérsion is ' a common-law tort action for the wrongful possession or disposition of another’s property. McQuillan v, Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998). To establish liability for the toft of conversion, a plaintiff must prove that the defendant wrongfully committed a distinct act of dominion over the property of another, which is a denial of or is inconsistent with the owner’s rights. Id. Where the defendant exercises control .over .the goods in exclusion or defiance of the owner’s rights, it is a conversion, whether it is for defendant’s own use or another’s use. Id.
| mThis was a bench trial, so the standard of review on appeal is- whether .the circuit court’s findings were clearly .erroneous or clearly against the preponderance of the evidence. Cochran v. Bentley, 369 Ark. 159, 251 S.W.3d 253 (2007); Ark. R. Civ. P. 52(a). We view the evidence in the light most favorable to, the appellee, resolving all inferences in. favor of the appellee. McQuillan, supra. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder, Cochran, supra.
On appeal, Hartness argues that the “greater weight of the evidence demonstrates Nuckles either lost or destroyed parts belonging to Hartness, which resulted in specific damages.” This argument contradicts the testimony of one of Nuck-les’s employees, who testified that the old parts were labelled and damaged parts were discarded outside the body shop. In essence, Hartness argues that we should reweigh the evidence in his favor. But this is something we cannot do. We weigh the evidence in favor of the verdict and leave questions regarding credibility with the fact-finder. Applying these standards, we hold the circuit court’s findings were not clearly erroneous. We affirm on this point. .
Affirmed.
Baker and Goodson, JJ., concur.
Hart, J.y dissents.
. Ark. Code Ann. § 4-2-313 (express warranties); Ark. Code Ann. § 4-2-314 (implied warranty of merchantability); Ark. Code Ann. § 4-2-315 (implied warranty of fitness for a particular purpose).
. See, e.g., Wawak v. Stewart, 247 Ark. 1093, 1100, 449 S.W.2d 922, 926 (1970) (holding that "an implied warranty may be recognized in the sale of a new house by a sellér who was also the builder”).
. See Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996).
. 18 Richard A. Lord, Willison on Contracts § 52:45, 258-59' (4tiued. 2001:) ("There is'a, division of opinion whether the express warranty concepts in the Code are also applicable or may be extended to'service agreements.”). Compare Pepsi Cola Bottling Co. of Anchorage v. Superior Burner Service Co., 427 P.2d 833 (Alaska 1967) (holding that a claim for breach of an implied warranty did not lie in a contract for personal services) with Ellen Taylor, Applicability of Strict Liability Warranty Theories to Service Transactions, 47 S.C. L.Rev, 231 (Winter 1996) (arguing that implied warranties should attach in a contract for services).
. Contrary to the dissent's point of view, this opinion is not advisory. Because the circuit court’s only ruling on the breach of warranty claims was that the claims failed for lack of notice, our jurisdiction is limited to this issue. Further, the answer to this question is neither moot nor academic because our decision will have a practical effect on the parties’ legal rights: whether notice is required will control Hartness’s ability to Sue Nuckles for breach of warranty.
. Hartness also argues that the issue of notice was tried by consent. However, the record reflects that Nuckles raised lack of notice in his motion to dismiss, his motion for a directed .verdict, and in-his posttrial brief. -
. Hartness did present invoices from Restoration Plus that, according to him. constituted evidence of overcharging. But the circuit court obviously did not believe that any of these charges were wrongful or amounted to an unjustified gain for Nuckles. In any event. Hartness argues that his damages for unjust enrichment should be the amount it would take to repair his car; there is no argument that Nuckles should be stripped of his wrongful gain, which is the proper measure of unjust enrichment.
. Perhaps the majority believes that causes of action that sound in contract are the, same as causes of action that sound in tort, It is the practice of this court to selectively recognize common law torts. See, e.g., M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980) (recognizing tile tort of outrage or intentional infliction of emotional distress); see also Goff v. Harold Ives Trucking Co., 342 Ark. 143, 27 S.W.3d 387 (2000) (refusing-to recognize the tort of spoliation of evidence). | [
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LARRY D. VAUGHT, Judge
1 -, William James Cartwright is appealing his conviction by a Chicot County jury of robbery. He argues that the State presented insufficient evidence to support the conviction and that the court erred in refusing to instruct the jury on theft as a lesser-included offense of robbery and in admitting evidence of out-of-state convictions in the sentencing phase. We affirm.
Cartwright admits that on September 27, 2014, he entered & True Value store in Lake Village, saw an employee place a money bag in a cabinet in an office, went into the office, took the money bag, and fled the store with it. Kay Hambers testified' that she was working at the True Value that day, and when she tried to stop Cartwright from leaving with the money bag, he shoved her out of the way. Christopher Johnson testified that he was shopping at the True IgValue that morning when he witnessed Cartwright push Ham-bers and flee the store with the money bag. Johnson chased Cartwright into -the parking lot and tried to grab the bag. Johnson testified that Cartwright swung at him but missed. Shannon Williams, another True Value employee, testified that he chased Cartwright to his car, reached in the driver-side window, and retrieved the money bag off the dashboard as Cartwright began to drive away. Linda Mims testified that she was working as the manager at the True Value store that morning and witnessed the events described above. Captain Bob Graham with the Lake Village Police Department testified that, after interviewing the witnesses, he was able to identify and apprehend Cartwright, who admitted to trying to take the money bag but denied pushing Hambers or attempting to hit Johnson.
Cartwright moved for a directed verdict, arguing that the State had failed to show he used or threatened to use physical force in trying to take the money, which the court denied. The court also denied his request to instruct the jury on theft as a lesser-included offense to robbery. Cartwright was convicted of robbery and fleeing. During sentencing, the court admitted evidence of several prior out-of-state convictions but'refused to allow them to be used as the basis for a sentencing enhancement because there was no evidence that Cartwright had an attorney in those proceedings. The jury sentenced Cartwright to fifteen years for robbery and five years for fleeing and recommended that the sen- fences run consecutively. The jury also recommended restitution in the amount of $5,100.
On appeal, Cartwright argues that the court erred in denying his motion for directed verdict because there was insufficient evidence that he had employed or threatened to employ physical force while attempting to steal the money.
| a A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person.
Ark. Code Ann. § 5-12-102 (Repl. 2013). The criminal code defines “physical force” as any “bodily impact, restraint, or confinement” or “threat of any bodily impact, restraint, or confinement.” Ark. Code Ann. § 5-12-101(1), (2). A robbery is committed when a person, in resisting apprehension for theft, employs physical force or threatens the use of physical force to avoid apprehension. McElyea v. State, 360 Ark. 229, 232, 200 S.W.3d 881, 883 (2005) (citing Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (1979)).
The standard of review is well settled and has been set forth as follows:
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. We have repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence -that supports the verdict. We affirm a conviction if substantial evidence exists to support it. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way. or the other, without resorting to speculation or conjecture.
Sartin v. State, 2010 Ark. App. 494, at 5-6, 2010 WL 2404165 (quoting Gillard v. State, 372 Ark. 98, 100-01, 270 S.W.3d 836, 838 (2008) (internal citations omitted)). Here, there was more than substantial evidence to support the verdict. Several witnesses testified that Cartwright shoved Hambers and swung at Johnson while trying to flee with the money bag. We have consistently held that a shoplifter, who, after having been discovered trying to steal merchandise, shoves or pushes someone in order to escape, has committed robbery. Becker v. State, 298 Ark. 438, 768 S.W.2d 527 (1989); Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984); White v. State, 271 Ark. 692, 610 S.W.2d 266 (Ark. App. 1981). We affirm on this point.
| ¿Cartwright’s second argument on appeal is that the trial court erred in denying his request that the jury be instructed on theft as a lesser-included offense of robbery. On appeal, we must affirm a trial court’s decision to exclude an instruction on a lesser-included offense if there is no rational basis for giving the instruction. Thomas v. State, 2012 Ark. App. 466, at 2, 422 S.W.3d 217, 219. We will not reverse a trial court’s decision regarding the submission of such an instruction absent an abuse of discretion. Id. at 3, 422 S.W.3d at 219. A trial court does not abuse its discretion in denying a proffered jury instruction on a charge that is not a lesser-included offense. See Brown v. State, 347 Ark. 44, 47, 60 S.W.3d 422, 424 (2001).
-We find no merit in Cartwright’s argument because theft is not a lesser-included offense of robbery. The Arkansas Supreme Court explicitly held that theft is not a lesser-included offense of robbery in both Thompson v. State, 284 Ark. 403, 408, 682 S.W.2d 742, 745 .(1985), and Hill v. State, 276 Ark. 300, 302, 634 S.W.2d 120, 121 (1982). In Thompson, the supreme court explained that “[t]heft is the wrongful appropriation of the victim’s property while robbery is the threat of physical harm to the victim. The offenses are of a different nature.” Thompson, 284 Ark. at 408, 682 S.W.2d at 745. Because Thompson was decided pursuant to a common-law rule for determining lesser-included offenses, which was replaced by Arkansas Code Annotated section 5—1—110(b), the supreme court later retreated from Thompson's, reliance on the common-law test. McCoy v. State, 347 Ark. 913, 921, 69 S.W.3d 430, 435 (2002), opinion supplemented on denial of reh’g, 348 Ark. 239, 74 S.W.3d 599 (2002). Under the statute, an offense is a lesser-included offense if it
(1) Is established by proof of the same or less than all of the elements required to establish the commission of the offense charged;
| s(2) Consists of an attempt to commit the offense charged or to commit an offense otherwise included within the offense charged; or
(3) Differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish the- offense’s commission.
Ark. Code. -Ann. § 5-l-110(b), Although we have found no recent cases addressing whether theft is a lesser-included offense of robbery, Arkansas courts have repeatedly held that theft is not a lesser-included offense of aggravated robbery based on much of the same reasoning discussed in Thompson. See Brown v. State, 347 Ark. 44, 47, 60 S.W.3d 422, 424 (2001); Hill, 276 Ark. at 302, 634 S.W.2d at 121.
Accordingly, we hold that theft is not a lesser-included offense of robbery pursuant to Arkansas Code Annotated section 5-l-110(b). The wrongful appropriation of the victim’s property is an essential element of theft, while robbery can be committed without actually taking the property of another, since robbery is defined as employing or threatening to employ physical force upon another with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter. Robinson v. State, 303 Ark. 351, 354, 797 S.W.2d 425, 426 (1990); Ark. Code Ann. § 5-36-103(a)(l); Ark. Code Ann. § 5-12-102(a). Theft, therefore, cannot be proved by less than all the elements required to establish robbery; it requires the additional element of exercising control over the property of another. Theft is also not merely an attempt to commit robbery and does not differ from robbery merely by degree. The offenses are of a different nature, as noted in Thompson. We affirm on this point.
Cartwright’s final argument on appeal is that the trial court erred during the sentencing phase by admitting evidence of his previous out-of-state convictions where they were not accompanied by any assurance that he had been represented by counsel in those proceedings. |fiWe need not reach the merits of this argument because Cartwright cannot demonstrate prejudice, even if admission of the evidence was in error. The jury sentenced Cartwright to fifteen years’ imprisonment for robbery, which is a Class B felony and carries a potential maximum sentence of twenty years’ imprisonment. Similarly,-the jury sentenced Cartwright to five years’ imprisonment for fleeing, which is a Class D felony and carries a potential maximum sentence of six years’ imprisonment. Because Cartwright received less than the statutory maximum sentence on each charge, he cannot show prejudice. Nelson v. State, 2015 Ark. App. 697, at 7, 477 S.W.3d 569, 573; Gillean v. State, 2015 Ark. App. 698, at 28, 478 S.W.3d 255, 272.
Affirmed.
Hixson and Brown, JJ., agree.
. Cartwright was also convicted of fleeing from law enforcement but has not challenged that conviction on appeal. | [
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ROBERT J. GLADWIN, Chief Judge
pThe Mississippi County Circuit Court terminated appellant Marcus Johnson, Sr.’s, parental rights to M.J, born June 29, 2013. Johnson argues on appeal that the trial court erred because it relied on a ground not pled and the alternative ground pled was not proved because there was no evidence of compliance with the Americans with Disabilities Act (ADA). We affirm.
I. Procedural History
Appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect on November 26, 2013, alleging that Gloria Chambers, mother of M.J, had violated a no-contact order and had been arrested, resulting |2in a seventy-two-hour hold being placed on M.J. An ex parte order was signed, and M.J. was placed in DHS custody. On December 2, 2013, a probable-cause order was filed, which found it to be in M.J.’s best interest to remain in DHS custody and for DHS to develop a case plan and provide appropriate services.
M.J. was adjudicated dependent-neglected on February 13, 2014. The order reflects that M.J. was dependent-neglected because there was no legal caregiver for him when Chambers was incarcerated. The goal of the case was to return M.J. to Chambers’s custody, and the adjudication order also reflects that DHS should comply with the ADA because both parents were receiving Social Security Disability benefits (SSD).
In the May 19, 2014 review order, the trial court ordered that “Mr. Johnson’s houseguest shall complete her portion of the home study,” and the goal of the case continued to be the return of M.J. to his mother. The trial court found that DHS had made reasonable efforts to provide services to achieve the goal of the case. The case was reviewed again on August 13, 2014, and the resulting order reflects that the goal of the case remained the same, both parents had completed parenting classes and had watched the video
“The Clock is Ticking”; however, but Johnson had tested positive for THC on August 1, 2014. The parents were ordered to submit to random drug screening, and DHS was found to have made reasonable efforts to provide family services to achieve the goal of the case by ^providing transportation and visitations. Thereafter, the case was continued on October 9, 2014, and again on April 13, 2015, and set for review on June 17, 2015.
II. Petition for Termination of Parental Rights
On July 8, 2015, DHS filed a petition for termination of parental rights alleging that M.J. had been out of the custody of his parent for twelve months and, despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused removal, those conditions had not been remedied, citing Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) (Repl. 2015). To support this ground for termination, DHS alleged that the results of Johnson’s random drug screens were as follows: August 1, 2014, positive for THC; August 19, 2014, positive for THC; October 6, 2014, negative; October 23, 2014, positive for THC, methadone, amphetamine, opiates and PCP; November 7, 2014, positive for THC; January 14, 2015, positive for opiates; March 13, 2015, positive for opiates; April 10, 2015, negative; May 4, 2015, abnormal test; June 10, 2015, positive for THC and cocaine. DHS also alleged that Johnson had two invalid tests—he tried to put soap in a specimen cup and another urine sample was cold—and had been incarcerated multiple times throughout the case. DHS alleged that a home study could not be completed because Johnson and his roommate would not submit to the required background checks as ordered by the circuit court.
DHS further alleged that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that placement of M.J. in the custody of the parent was contrary to his health, safety, or welfare and that, despite the offer of appropriate family services, the .parent had manifested the incapacity or indifference to Uremedy the subsequent issues or factors or rehabilitate their circumstances that prevented the placement of the juvenile in the custody .of the parent. Ark., Code Ann. § 9-r27-341(b)(3)(B)(vii). To support this ground, DHS alleged that Johnson had tested positive for illegal substances on numerous occasions as cited above and had been incarcerated several times during the pen-dency of the case. Also, DHS alleged that Johnson and his roommate had not cooperated in completing a home study. DHS claimed that the potential harm of placing the child with Johnson was that he continued to test positive for illegal substances, and he had “legal issues.”
At the termination hearing on December 14, 2015, Sylvia Ware, a supervisor for DHS, testified that M.J. was taken into custody on November 22,2013, because his mother had been arrested for violating a no-contact order, and he had- been in DHS custody since then. Ware stated that Johnson completed parenting classes, watched “The Clock is Ticking” video, and maintained visitation with M.J. She stated that there were complaints of Johnson being too loud during visitation and that he took his shirt off in the park and allegedly exposed his genital area. Johnson denied this allegation. Ware testified that Johnson had stable income but not stable housing, because he had moved several times during the case. She thought that he was living with his girlfriend at the time of the termination hearing, but neither a background check nor a central-registry check had been performed on the girlfriend. She said that Johnson received $733 per month SSD based on a speech impediment. She testified about the drug screens that Johnson had taken during the pendency of the case and added eight positive results to those listed in the termination petition. She also stated that Johnson had tested positive for cocaine and THC on the date Ifiof the hearing. She said that he had completed only one of the twelve outpatient 'classes recommended based on a drug-and-alcohol assessment. She claimed that she was not aware of a specific offer of transportation to the classes. She said that he claimed that someone had laced his cigarette with cocaine and THC. She also testified that M.J. was adoptable and was already in a preadoptive home, placed together with his sister.
Gregory Watson, a DHS caseworker assigned to Johnson’s case, testified that Johnson was' living in a one-bedroom apartment with his girlfriend but intended to move to a bigger place after he was married. Watson said that he had witnessed visitations with Johnson and M.J., and that Johnson loved and cared about M.J. Watson also stated that he had always asked Johnson if he needed a ride, either to outpatient sessions or to visitation, and had told Johnson to give him a call if he were needed.
Johnson testified that he was M.J.’s father and that he had been living at his current apartment for the last four months. He also testified to two other addresses. where he had lived during the pendency of the case. He said that if M.J. went home with him that day, M.J. .would get the bed, and he and his girlfriend would sleep on two couches. He stated that he did not have diapers, but he would obtain everything if necessary. He said that he and his girlfriend planned on marrying and getting a larger home. He testified that they did not have a car, and he did not drive; however, he had friends and relatives to call on if he needed transportation for his son. He said that he had a high school diploma but drew- SSD for his speech impediment and had never worked in his life. He testified that he had not smoked weed “for a minute. About two or three weeks ....” He explained that he had tested positive because he was around people who “blew weed” in his face. He then stated that he had never |fismoked marijuana but had been around people who blew it in his face. He also said that he thought the cocaine in his system was from someone putting it in his cigarettes, and he denied putting soap in his urine specimen when he was drug tested.
Johnson’s niece, Sadania Byrd, testified that she was thirty-one years old and saw Johnson once a week. She stated that Johnson was a good father and loved his son. She said that she drove Johnson wherever he needed to go and that she had never witnessed Johnson using drugs of any kind.
III. Trial Court’s Termination-of-Parental-Rights Order
The trial court granted DHS’s petition for termination and ruled that M.J. would be adopted if the petition were granted, because he was in a preadoptive placement with his sister. The trial court also found potential harm to the health and safety of M.J. if he returned to the custody of his mother, and she had consented to termination of her parental rights. Further, M.J. had been out of the home for over two years and had not been placed with Johnson due to Johnson’s housing instability, drug usage, lack of reliable transportation, and failure to follow the recommendation of the drug-and-alcohol assessment. The order terminating parental rights was filed on February 19, 2016, and Johnson filed a timely notice of appeal on March 4, 2016.
IV. Applicable Law
The rights of natural parents are not to be passed over lightly; however, parental rights will not be enforced to the detriment or destruction of the héalth and well-being of 17the child. Oldham v. Ark Dep’t of Human Servs., 2015 Ark. App. 490, at 6-7, 469 S.W.3d 825, 829. A trial court’s order terminating parental rights must be based on findings proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Posey v. Ark Dep’t of Human Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews termination-of-parental-rights cases de novo but will not reverse the trial 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. Id. In detérmining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the trial court to judge the credibility of witnesses. Id.
In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the' likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341 (b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). However, only one ground must be proved to support termination. Reid v. Ark. Dep’t of Human Servs., 2011 Ark. 187, 380 S.W.3d 918.
[sJohnson does not challenge the trial court’s finding that termination was in M.J.’s best interest, including consideration of the likelihood that M.J. will be adopted and of the potential harm that would be caused by returning him to Johnson’s custody. He challenges only the trial court’s finding of statutory grounds on which to terminate his parental rights.
V. Grounds for Termination
Johnson argues that because the trial court terminated his parental-rights on a statutory ground not pled, it cannot be said that DHS proved its petition with clear and convincing evidence.. The petition alleged that M.J. had been adjudicated dependent-neglected and had continued
out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the Department to rehabilitate the parent and correct the conditions that caused the removal, those conditions have not been remedied by the parent. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a).
Johnson claims that, in support of this allegation, DHS stated that M.J. had been adjudicated dependent-neglected “due to no legal caregiver as the mother was incarcerated at the time.” He further states that DHS “also asserted factual allega tions” against both parents, and concluded that “[d]espite a meaningful effort by the Department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a).” He points out that, in contrast, the trial court found that DHS proved that M.J. had been out of the noncustodial parent’s home for twelve months and despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions “that prevented the child from safely being placed in the parent’s home, the conditions have not been remedied by the parent.”
| a Johnson claims that DHS failed to plead the ground in the termination petition that was employed by the circuit court at the termination hearing and, thus, that the ground relied on must be excluded. In support, .Johnson cites Dornan v. Arkansas Department of Human Services, 2014 Ark. App. 355; Jackson v. Arkansas Department of Human Services, 2013 Ark. App. 411, 429 S.W.3d 276; and K.C. v. Arkansas Department of Human Services, 2010 Ark. App. 353, 374 S.W.3d 884.
In Doman, our court held as follows:
Due process demands that a parent be notified of the grounds that may constitute a basis for termination; at a minimum, it requires notice reasonably calculated to áfford a natural parent the opportunity to be heard prior to termination of his or her parental rights. Jones v. Ark. Dep’t of Human Servs., 2011 Ark. App. 632; see Jackson v. Ark. Dep’t of Human Servs., 2013 Ark. App. 411, 429 S.W.3d 276 (reversing because Jackson was not placed on notice that he must defend on a particular ground on which termination was based: the department never specifically argued that the trial court should rely on the ground, the trial court took the matter under advisement without ruling from the bench, and the first specific mention of this ground was in the trial court’s order terminating parental rights) (citing Kight v. Ark. Dep’t of Human Servs., 94 Ark. App. 400, 409, 231 S.W.3d 103, 109 (2006)). Here, we agree that the first three statutory grounds found by the circuit court cannot sustain the termination of appellant’s parental rights because she was not placed on notice that she must defend against them.
Id. at 16-17. However, we also held that the fourth ground pled, aggravated circumstances, was a proper basis for termination because the petition specifically alleged as proof of this ground that appellant had not had regular visits with the children since they had gone into care. Id. at 17.
Johnson argues that he had no notice prior to the termination hearing that his parental rights might be terminated on the ground that the child had been out of his custody for twelve months and that he had failed to correct the conditions that prevented the child |infrom safely being placed in his home. He claims that because the trial court relied on that sole ground in terminating his parental rights, the order must be reversed. DHS and the attorney ad litem assert that the subsequent-factors statutory ground was alleged and proved, and on de novo review, this court can affirm the circuit court’s termination decision on any ground that was alleged in the petition and proved. Fenstermacher v. Ark. Dep’t of Human Servs., 2013 Ark. App. 88, 426 S.W.3d 483. We agree, relying on the same reasoning as applied in Dor-nan, supra, and now consider the other statutory ground pled.
VI. Subsequent Factors
Although the trial court did not terminate Johnson’s parental rights on the subsequent-factors ground, it was pled by DHS as a ground supporting termination. But, Johnson argues that it does not offer an alternative basis for this court to affirm. He claims that, under the subsequent-factors ground, DHS must prove that these subsequent factors prevented the return of M.J. to him despite the fact that’ DHS offered “appropriate family services.” Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). Johnson claims that DHS failed to offer sufficient proof in this regard since, he alleges, it is undisputed that no reasonable accommodations were made for him.
He points to the February 13, 2014 adjudication order that specifically directed DHS to comply with the ADA because both parents received SSD. He contends that, despite this directive, there was no evidence that DHS ever investigated the potential accommodations needed to ensure successful reunification of him with his son. He acknowledges that he did not challenge DHS’s failure to comply with the ADA in the trial below, but claims that he is not precluded from raising this issue on appeal, citing Baker v. Arkansas Department of Human Resources, 2011 Ark App. 69, 2011 WL 386974 (where this court ordered rebriefing of a mo-merit brief), and Baker v. Arkansas Department of Human Services, 2011 Ark. App. 400 (where we held that a nonfrivolous argument could have been made that a Wicks exception— no objection required to preserve an issue for appeal where the error is so flagrant and egregious that the trial court should, on its own motion, have taken steps to remedy it—should apply where the indigent parent’s mental disability was at issue). See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
Johnson contends that the trial court and all parties were aware from the time of the adjudication that he received SSD. He claims that his speech impediment would also have been obvious to all parties, and Sylvia Ware, a caseworker for DHS, testified that she was aware that Johnson received SSD. He claims that, despite DHS’s knowledge of his receipt of SSD, no attempt was made by DHS to investigate what accommodations might be needed. Thus, he maintains that the trial court, on its own motion, should have at least inquired into DHS’s compliance with the ADA. He contends that there was no evidence that he was given meaningful access to reunification and family-preservation services as required under section 9-27-341(b)(3)(B)(vii)(a); thus, he asserts that it cannot serve as an alternative basis for the termination of his parental rights.
We hold that Johnson’s failure to follow circuit court orders and his drug use were the subsequent-factors issues, and these failures are sufficient to support a subsequent-factors finding. Cotton v. Ark. Dep’t of Human Servs., 2012 Ark. App. 455, 422 S.W.3d 130. Further, Johnson’s appropriate-family-service challenge must fail because, at every hearing, the circuit court found that DHS had made reasonable efforts, and Johnson never appealed 11gthose findings. Prior to his appeal, Johnson never challenged the appropriateness of any DHS-offered reunification service, and he never argued that there were particular reunification services that DHS should provide. See Emmons v. Ark. Dep’t of Human Servs., 2013 Ark. App. 541, at 5 (where appellant argued that, because he was a quadriplegic, he should have been given, under the ADA, transportation to a drug assessment that he failed to attend, and this court held that the previous orders finding that reasonable services had been provided were not appealed and therefore precluded review on that issue). Finally, Johnson’s failure to follow the orders designed to achieve M.J.’s permanent placement demonstrated an incapacity or indifference to remedy the subsequent fac tors. Myers v. Ark Dep’t of Human Servs., 2011 Ark. 182, 380 S.W.3d 906. Accordingly, we affirm. :
Affirmed.
Virden and Glover, JJ., agree.
. Chambers executed a consent to termination of her parental rights on October 22, 2015, and she is not the subject of this appeal.
. Even though Calvin Taylor was originally listed as M.J.’s legal father in the emergency petition and ex parte order, a paternity test determined that Johnson was M.J.'s father, and the probable-cause order lists Johnson as such.
. D.C., born August 14, 2014) is Chambers’s daughter, but is not the daughter of Johnson, and is therefore not discussed in this appeal. | [
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PER CURIAM
Un May 1998, appellant Lee Charles Millsap, Jr., also known as Solomon Mill-sap, pleaded guilty to capital murder, ter-roristic threatening, and second-degree battery in the stabbing death of his fian-cée. He was. sentenced to life imprisonment without the possibility of parole and two six-year terms to run concurrently with the life sentence. Millsap thereafter sought relief pursuant Arkansas Rule of Criminal Procedure 37.1 (1998), claiming his plea of guilty was the result of ineffective assistance of counsel. The petition was denied by the trial court, Millsap’s post-conviction counsel filed a. no-merit brief, and we affirmed the trial court’s order, holding that the guilty plea had been entered knowingly, intelligently, and voluntarily with the assistance of competent counsel. Millsap v. State, CR-99-437, 2000 WL 1368040 (Ark. Sept. 21, 2000) (unpublished per curiam).
lain 2010, Millsap filed his first petition for coram-nobis relief in the trial court and alleged that he had been denied effective assistance of counsel when he pleaded guilty and that his- postconviction counsel had been ineffective in that he failed to arrange a psychiatric evaluation before the evidentiary hearing on the Rule 37.1 petition took place. The trial court treated Millsap’s allegations as claims that Millsap was insane at the time of trial and that his guilty plea had been coerced and denied relief. We dismissed the appeal because it was clear from the record that Millsap could not prevail. Millsap v. State, 2014 Ark. 493, 449 S.W.3d 701(per curiam).
On September 4, 2015, Millsap filed in the trial court a second pro se petition for coram-nobis relief and raised the following three claims: that he was insane at the time of trial; that the prosecutor withheld evidence of Millsap’s insanity in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and that his guilty, plea was coerced. The trial court found that Millsap had failed to establish a basis for coram-nobis relief. Mill-sap brings this appeal from the order.
Now pending before -this court is Millsap’s motion for use of the record on appeal and for an extension of time to file an abstract, brief, and addendum. When it is clear from the record that the appellant cannot prevail on appeal of an order that denied postconviction relief, we dismiss the appeal. Wheeler v. State, 2015 Ark. 233, 463 S.W.3d 678 (per curiam). As it can be determined from the record that Millsap could not prevail, the appeal is dismissed, which renders the motion moot.
The function of the writ for error coram nobis is to secure relief from a judgment rendei’ed while there existed some fact that would have prevented the rendition of the (judgment had it been known to the trial court and which, through no fault of the defendant, was not brought forward before rendition of the judgment. Newman v. State, 2009 Ark. 539, at 5, 354 S.W.3d 61, 65. A writ of error coram nobis is an extraordinarily rare remedy more known for its denial than its approval. Howard v. State, 2012 Ark. 177, at 4, 403 S.W.3d 38, 42-43. Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Id. We have held that a writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Id. When claiming insanity as a ground for the writ, the burden is on the petitioner who claims mental illness to overcome the strong presumption that the judgment was valid. Noble v. State, 2015 Ark. 215, at 3, 462 S.W.3d 341, 344 (per curiam). Claims that a petitioner either could- have known, or did know, at the time of trial do not provide grounds for issuance of a writ of error coram nobis. Rodgers v. State, 2013 Ark. 294, at 3, 2013 WL 3322344 (per curiam).
Millsap supported his claim that he was insane at the time of trial by challeng- mg the validity of a court-ordered mental evaluation performed by Dr. Susan Doi, a staff psychologist with the Arkansas State Hospital, wherein Dr. Doi concluded that Millsap was not suffering from a major mental disorder and was competent to stand trial. According to Millsap, the mental evaluation performed by Dr. Doi was “devoid of any substantial testing or recognized diagnosis.” Millsap further contended that Dr. Doi measured his IQ to be 73 14but failed to take into consideration the “Flynn Effect,” which, according to Mill-sap, would have reduced hi's IQ by an additional four points. In addressing Mill-sap’s first claim for relief, the trial court reviewed the trial record and found that Millsap had requested a mental-health evaluation, and that a competency hearing had been conducted on December 29,1997, after which “the defendant had been found fit to proceed to trial by this court.” To the extent that the allegations advanced by Millsap could be considered a challenge to the sufficiency of the evidence supporting the finding that he was competent to proceed to trial, such challenges are not cognizable in coram-nobis proceedings. Ventress v. State, 2015 Ark. 181, at 6, 461 S.W.3d 313, 317 (per curiam).
Furthermore, as stated above, allegations set forth in Millsap’s first coram-nobis petition had been construed by the trial court as an insanity claim. This court dismissed the appeal challenging the denial of his first petition and concluded that Millsap had failed to present facts sufficient to demonstrate that there was information not known at the time of trial or which could not have been known at the time of trial that Millsap was incompetent to proceed. Millsap, 2014 Ark. 493, at 4, 449 S.W.3d at 704. In that case, this court relied on information and issues gleaned from Millsap’s Rule 37.1 appeal and found that an insanity defense had been considered by counsel at length, and, therefore, Millsap had failed to establish in his co-ram-nobis petition that there was any information concerning his competence of which the defense was either unaware at the time of trial or could not have uncovered at the time of trial. Id.
In this second coram-nobis petition, Millsap specifically raised an insanity claim and supported his claim by contending .that the competency evaluation that had been ordered |sby the court prior to his scheduled trial contained invalid conclusions unsupported by objective analysis. Clearly, the conclusions contained within that evaluation, including the result of the IQ tests, were known to Millsap, his counsel, and to the sentencing court at the time that Millsap entered his guilty plea. When a petitioner’s competence has been considered. by the sentencing court, there is no showing that there existed some fact extrinsic to the record, unknown to the court or to the petitioner, that would have prevented the rendition of the judgment. Westerman v. State, 2015 Ark. 69, at 4-6, 456 S.W.3d 374, 377 (citing Ridgeway v. State, 239 Ark. 377, 389 S.W.2d 617, cert. denied, 382 U.S. 902, 86 S.Ct. 236, 15 L.Ed.2d 156 (1965) (holding that a psychological examination of the petitioner, which had • been reported to the circuit court, showed that the petitioner’s sanity was an issue presented to the circuit court and could not later be considered on a petition for writ of error coram nobis)). Millsap has alleged no additional facts in this second coram-nobis petition demonstrating that there existed facts extrinsic to the record and unknown to the sentencing court that he was insane at the time he entered a guilty plea. Westerman, 2015 Ark. 69, at 4-6, 456 S.W.3d at 377; see also Williams v. State, 2016 Ark. 92, at 3-4, 485 S.W.3d 254, 256 (per curiam).
In his second claim for relief, Mill-sap alleged that the prosecutor was aware of Millsap’s mental impairment but failed to disclose the information. In support of this claim, Millsap alleged that the prosecutor withheld the following facts from the forensic report: that Millsap was an honorably discharged veteran of the United States Army who had served in the Gulf War; that in 1988, his mother, brother, and adopted sister were killed by a drunk driver; and that he was involved in a serious automobile accident in 1996. Moreover, Millsap alleged that, after he had pleaded guilty to capital murder, the prosecutor nolle |6prossed a rape charge that had been brought against Millsap in an unrelated case' “due to Petitioner’s lacking culpability due to mental disease or defect.” According to Millsap, this demonstrated that the prosecutor had access to and withheld facts demonstrating Millsap’s insanity.
While allegations of a' Brady violation fall within one of the four categories of fundamental error that this court has recognized, the fact that a petitioner alleges a Brady violation alone is not sufficient to provide a basis for error-coram-nobis relief. Smith v. State, 2015 Ark. 188, at 4-5, 461 S.W.3d 345, 349 (per curiam). To establish a Brady violation, three elements are required: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued. State v. Larimore, 341 Ark. 397, 404, 17 S.W.3d 87, 91 (2000). When determining whether a Brady violation has occurred, it must first be established that the material was available to the State prior to trial and the defense did not have it. Cloird v. State, 357 Ark. 446, 452, 182 S.W.3d 477, 480 (2004); The fundamental prerequisite to any Brady claim is establishing that facts were available to the prosecutor which were unknown to the defense at the time of trial. Id.
Clearly, the occurrence of previous events in Millsap’s life were known to him at the time of trial, and Millsap had the opportunity to disclose those facts to Dr. Doi and to the 17trial court before the rendition of the judgment. Millsap’s allegations regarding the basis for the prosecutor’s request to. have, an unrelated rape charge nolle prossed is equally unavailing. We are not required to accept the allegations in a petition for writ of error coram nobis at face value. Goff v. State, 2012 Ark. 68, at 3, 398 S.W.3d 896, 898 (per curiam). Furthermore, when considering a petition for coram-nobis relief, this, court .looks to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof. Isom v. State, 2015 Ark. 225, at 1-2, 462 S.W.3d 662, 663. Millsap offers a docket sheet establishing that the rape charge had been nolle prossed on June 15, 1998, but otherwise provides no evidence supporting his improbable allegation that the charge had been nolle prossed on the basis of incompetency.
In his third claim, Millsap con-tendéd that his guilty plea was coerced because his defense counsel “never formed a theory of defense because his sole objective was to plead the Petitioner out. ... [and] to compel the Petitioner to do his will—that constitutes coercion.” Millsap further alleged that the prosecutor coerced the guilty plea by threatening to seek the death penalty. Millsap did not aver that his plea was the result of fear, duress, or threats of mob violence, which are allegations recognized by this court as cognizable in coram-nobis proceedings. Nelson v. State, 2014 Ark. 91, at 4, 431 S.W.3d 852, 855. Nor has Millsap offered any substantiation that he was subjected to any specific mistreatment such that he was somehow coerced into appearing before the court and entering his plea. Id. Millsap’s allegation that he was coerced due to counsel’s failure to develop a defense strategy amounts to a claim of ineffective assistance of counsel, which is not cognizable in co-ram-nobis proceedings; Millsap, 2014 Ark. 493, at 3, 449 S.W.3d at 704. With respect to IsMillsap’s allegation that he was threatened with a possible death sentence, we have held that the mere pressure to plead guilty occasioned by the fear of a more severe 'sentence is hot coercion. Nelson, 2014 Ark. 91, at 4, 431 S.W.3d at 855.
For the reasons set forth above, Millsap failed to state grounds' for the issuance of a writ of error coram nobis. Accordingly, the trial court did not err in denying the relief sought:
Appeal dismissed;' motion moot.
. In support of this allegation, Millsap attaches a docket report from case number 60CR-97-1267, which indicates that the charge was dismissed by nolle prosequi On January 15, 1998. | [
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HOWARD W. BRILL, Chief Justice
11Appellant Justin Thornton appeals from an order of the Lincoln County Circuit Court convicting him of first-degree murder and sentencing him to a term of •forty years’ imprisonment. On appeal, Thornton contends that the circuit court erred in (1) denying his motion to dismiss the first-degree murder charge because the State did not present sufficient proof of the purposeful-intent element of first-degree murder, (2) denying his motion to dismiss for lack of jurisdiction, (3) denying his motion to dismiss for violation of his right to a speedy trial, (4) denying his motion to dismiss for violation of the Double Jeopardy Clause, and (5) denying his motion to dismiss for violation of his right to due process. We reverse and dismiss.
I. Factual Background & Procedural History
Following a bench trial held in February-2013, the Lincoln County Circuit Court found appellant Justin Thornton guilty of capital murder, felon in possession of a firearm, ^unauthorized use of a vehicle, and abuse of a corpse for which he was sentenced to life without parole plus ten years for his commission of the murder with a firearm. Thornton appealed to this court, arguing that the circuit court erred in denying his motion for directed verdict on the capital-murder charge because the proof failed to establish that he acted with the requisite premeditation and deliberation. Thornton v. State, 2014 Ark. 157, at 1, 433 S.W.3d 216, 217. We held that the evidence was insufficient to support a conclusion that Thornton killed the victim with a premeditated and deliberate intent and, we therefore reversed and dismissed. In doing so, we stated, ‘While the evidence cannot sustain the charge of capital murder, we offer no opinion, about whether it would sustain a lesser offense.” Id. at 15, 433 S.W.3d at 224. The case was handed down on April 10, 2014.
Following the issuance of our-mandate on May. 15, 2014, the State did not refile a murder charge against Thornton; rather, the State filed in the circuit court on May 29, 2014, a “Motion for Court to Consider Lesser-included Offenses.” In its motion, the State argued that, because this court concluded that there was insufficient evidence, to sustain a charge for capital murder, the circuit court should “now consider the lesser included- offenses of murder in the 1st degree, murder in the 2nd degree and manslaughter” and that, “[s]hould the [circuit] court find the evidence sufficient to sustain a conviction for a lesser offense, it should enter a judgment of conviction and sentence the defendant appropriately.” Thornton argued |sthat the State’s motion should be denied because this court did not remand the case to the circuit court for any further rulings or. findings of fact; rather, this court reversed- and dismissed. In. its reply, the State- contended that “[t]he fact that the capital murder conviction was. reversed and dismissed rather than remanded does not have any bearing on whether [the circuit] court can now consider lesser-included offenses ... Because this was a bench - trial instead of a jury trial, the .supreme. court’s decision to grant defendant’s motion and dismiss the capital murder charge, simply puts the [circuit] court back into the position it would have been in-had it dismissed the capital murder charge during the trial.”
The circuit ’ court granted the State’s motion and set a hearing for December 1, 2014. At the hearing, Thornton argued that the circuit court lacked jurisdiction to consider the lesser-included offenses, that the conviction of a -lesser-included offense following the reversal and dismissal of a greater offense violates double-jeopardy principles, that his right to a speedy trial was violated, and that the circuit court denied him due process at the hearing when it did not allow him to argue that there was insufficient evidence to sustain convictions of the lesser-included offenses. The circuit court rejected Thornton’s arguments, ruled that the evidence from the February 2013 bench trial was sufficient to prove that Thornton acted with purpose in causing the death of the victim, and found Thornton guilty of first-degree murder. The circuit court then sentenced Thornton, as a habitual offender, to forty years’ imprisonment for first-degree murder, enhanced by ten years for its commission with al4firearm.
II. Jurisdiction
As a threshold matter, this court must determine whether the circuit court had jurisdiction to hear the State’s “Motion for Court to Consider Lesser-Included Offenses” following this court’s reversal and dismissal in Thornton. This court’s opinion and mandate in 2014 reversed and dismissed Thornton’s conviction for capital murder. Nevertheless, the State contends that the letter and spirit of this court’s opinion and mandate- conferred jurisdiction on the circuit court to consider lesser-included offenses. According to the State, we “invited” the circuit court to hear the State’s “Motion for -Court to Consider Lesser-Included Offenses” when we stated that we “offerfed] no opinion about whether [the evidence] would sustain a lesser offense.” 2014 Ark. at 15, 438 S.W.3d at 224. We disagree. Because the issue of whether the evidence would sustain a, lesser offense was not before the court in 2014, any opinion we offered on that issue would have been advisory. ' It is. not the practice of this court to anticipate future litigation and issue advisory opinions. See Wright v. Keffer, 319 Ark. 201, 203-04, 890 S.W.2d 271, 272 (1995).
Here, the State would have us hold that, in Thornton, when we stated that the case was | ^reversed and dismissed, we meant that the case was reversed and remanded. This we will not do. See Eichelberger v. State, 323 Ark. 551, 557, 916 S.W.2d 109, 113 (1996) (explaining that if substantial evidence was presented, but prejudicial error occurred, the case is reversed and remanded, but “[i]f the evidence [is] insufficient the case is reversed and dismissed”).
We note that the State’s position on appeal is inconsistent with its position in response to Thornton’s pro se petition for writ of mandamus filed on December 17, 2014. In his petition, Thornton sought to have this court direct the circuit judge to enter a new or amended judgment reflecting the dismissal- of the capital-murder charge by this court in Thornton. The State contended that, although Thornton appeared to allege that the Arkansas Department of Correction had not received the mandate in his case, and believed that the opinion issued by this court remanded the case to the circuit court to issue a new judgment-and-commitment order, this court’s opinion did not include a remand to the circuit court. Specifically, the State asserted that this court “did not. remand the .case to the circuit court to enter a new order or take any other action related to the reversed and dismissed capital-murder conviction.” We agreed, stating, “Our decision reversed and dismissed petitioner’s conviction for capital murder; there was no remand requiring any. action by the trial court.” Thornton v. Jones, 2015 Ark. 109, at 2, 2015 WL 1198668 (per curiam).
Thus, we hold that, because the conviction was reversed and dismissed, the circuit court did not have jurisdiction to hear the State’s “Motion for Court to Consider Lesser-Ineluded Offenses.” Accordingly, we reverse and dismiss.
Reversed and .dismissed.
Wood, J., concurs.
Baker, Goodson, and Hart, JJ., dissent.
. The State notes in its brief on appeal that ' the Supreme Court of the United States has left open the question of whether the State could, consistent with the Double Jeopardy Clause of the United States Constitution, try a defendant for a lesser-included offense in the event that the conviction of the greater offense was voided due to insufficiency of the evidence. See Greene v. Massey, 437 U.S. 19, 25 n.7, 98 S.Ct. 2151, 57 L,Ed.2d 15 (1978).
. A person commits murder in the first degree if with a purpose of causing the death of another person, the person causes the death of another person. Ark. Code Ann. § 5-10-102(a)(2) (Repl. 2013).
. The circuit court noted that Thornton’s remaining convictions and sentences were not affected by this court’s reversal and dismissal in Thornton, 2014 Ark. 157, 433 S.W.3d 216. Thus, the amended sentencing order entered December 16, 2014, reflected that Thornton was sentenced to an aggregate total of seventy years’ imprisonment: concurrent terms of forty years' imprisonment for first-degree murder, twenty years’ imprisonment for felon in possession of a firearm, and one year in the county jail for. unauthorized use of vehicle; a consecutive term of twenty years’ imprisonment for abuse of a corpse; and a consecutive term of ten years’ imprisonment for.the firearm enhancement. In , the instant appeal, Thornton challenges only his conviction and sentence for first-degree murder. | [
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PER CURIAM
| |On December 5, 2013, appellant Michael Eugene Rea was found guilty by a Saline County jury of four counts of computer exploitation of a child in the first degree and of twenty counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child for which he was sentenced to an aggregate term -of - 3720 months’ imprisonment. This court affirmed .his convictions and sentences. Rea v. State, 2015 Ark. 431, 474 S.W.3d 493. Rea subsequently timely sought and was denied Arkansas Rule of Criminal Procedure 37.1 (2013) posteonviction relief. Rea lodged an appeal in this court from the denial of posteonviction re lief. Now before this court are Rea’s pro se motion for extension of time to file brief, motion for certified copies of records, and motion to use 12-point typeface.
| pWhen it is clear from the record that the appellant cannot prevail if an appeal of an order that denied postconvictioh relief were permitted to go forward, we dismiss the appeal. Wheeler v. State, 2015 Ark. 233, 463 S.W.3d 678 (per curiam); see also Justus v. State, 2012 Ark. 91. As it is clear from the record that Rea could not prevail on appeal, the appeal is dismissed. The dismissal of the appeal renders the motion for extension of time to file brief and motion to use 12-point typeface moot.
In making a determination on a claim of ineffective assistance of counsel, we assess the effectiveness of counsel under the standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), whereby a petitioner must demonstrate that counsel made errors so serious that it prejudiced the outcome of the trial. Sartin v. State, 2012 Ark. 155, at 2-3, 400 S.W.3d 694, 697-98. Under the Strickland standard, the reviewing court indulges in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. In order to satisfy the prejudice part of the Strickland test, the petitioner must show that counsel’s deficient performance prejudiced the defense, such that there is a reasonable probability that the outcome of his trial would have been different absent counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
lain his Rule 37.1 petition, Rea first argued that his trial counsel was ineffective for failing to file a motion to suppress evidence as fruit of an illegal search and seizure based on two searches—specifically, the search of the CDs contained in his backpack and the search of his home. Rea contends that a third party told the Mal-vern Police Depai'tment that Rea’s backpack was in her vehicle. The Malvern Police Department then took possession of the backpack and contacted Rea to retrieve it, and “[w]ith absolutely no indication of illegal activity, police had no legal authority to search the contents of specific CD’s inside [Rea’s] backpack. Police could have obtained permission or a warrant.” (Emphasis added.) Because counsel did not object to the warrantless search, Rea claimed he was prejudiced by the viewing of the CDs, which constituted an illegal search. The trial court found that—although Rea admitted the backpack was his, he denied ownership of the CDs, some of which had images depicting him and the juvenile victim, T.S.—because Rea denied ownership of the CDs, he did not have standing to assert a Fourth Amendment challenge to their seizm*e. Additionally, the trial court noted that Rea was contacted to come to the Malvern Police Department to retrieve his backpack, which he did not do, and in failing to do so, he abandoned his property. Because Rea abandoned his property, he abandoned his privacy interest in the property and its contents and could not assert a Fourth Amendment challenge. The trial court further noted that the backpack was turned over by a third party, a private citizen, and that a search by a private citizen raises Fourth Amendment concerns only if the person conducting the search acts at the request or direction of the government or is engaged in a joint endeavor with the government. The trial court’s order stated that URea’s failure to retrieve his property required the Malvern Police Department to inventory his property, a process, during which the pornographic images on the CDs were found.
An appellant must have standing to assert Fourth Amendment rights because those rights are personal in nature. Wilson v. State, 2014 Ark. 8, 2014 WL 197886. Whether an appellant has standing depends on whether he manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Wilson, 2014 Ark. 8, at 14 (citing Stokes v. State, 375 Ark. 394, 399, 291 S.W.3d 155, 158 (2009)). Under the Fourth Amendment, evidence should not be excluded unless the court finds that an unlawful search or seizure violated the defendant’s own constitutional rights. Mazepink v. State, 336 Ark. 171, 987 S.W.2d 648 (1999). A defendant’s rights are violated only if the challenged conduct invaded his legitimate expectation of privacy, rather than that of a third party. Id. The proponent of a motion to suppress bears the burden of establishing that his Fourth Amendment rights have been violated. See Gaylord v. State, 354 Ark. 511, 127 S.W.3d 507 (2003).
At trial, Chad Meli, a, special agent with the Arkansas Attorney General’s Office, testified that, prior to the search of Rea’s residence, he had been contacted by the Malvern Police Department regarding items from Rea’s backpack. Pictures were printed from the CDs from the backpack, and Special Agent Meli took some of the printed photos with him to Rea’s residence. A camera, an SD card, and the CDs were taken from the backpack. | sRea testified he had packed a backpack to go with some Mends for a weekend getaway. He had packed clothes, a camera, and an SD ■ card but had not packed any CDs in the backpack. After donating plasma in Little Rock to get some money, his friends left him, taking his backpack, and he did not see his backpack again. Rea testified that someone must have placed the CDs in his backpack because they did not belong to him.
Rea lacked standing to assert a Fourth Amendment challenge to the search and seizure of the CDs. Rea specif ically denied that the CDs belonged to him. See Dixon v. State, 327 Ark. 105, 111, 937 S.W.2d 642, 646 (1997) (Dixon would have personal Fourth Amendment rights to a gun itself found during a traffic stop but had no possessory interest in a truck or canvas bag to grant him standing to challenge the intrusion into the truck or the search of the canvas bag.). Because Rea ’ lacked standing to challenge the search and | (¡seizure of the CDs, his trial counsel was not ineffective for failing to file a motion to suppress regarding those CDs. Where it is asserted that counsel was ineffective for failure to make a motion or argument, the petitioner must show that the motion or argument would have been meritorious because the failure to make a motion or argument that is'meritless is'not ineffective assistance of counsel. Pigg v. State, 2016 Ark. 108, at 7, 486 S.W.3d 751, 756 (per curiam), reh’g denied (Apr. 14, 2016); see Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001). Trial counsel was not ineffective for failing to make a meritless motion to suppress, and the trial court properly denied Rea’s request for relief. See Camp v. State, 2015 Ark. 90, 457 S.W.3d 276 (There is no reason to address both components, the deficiency and prejudice prongs, of the inquiry for ineffective-assistance claims if the defendant makes an insufficient showing on one.).
In his Rule 37.1 petition below, Rea argued trial counsel was ineffective for failing to investigate “probable causé issues” when Special Agent Meli contacted Rea’s probation/parole officer, Ken Ogden, and had Ogden assist in’ a probationary home visit which led to the seizure of property. Specifically, he contends trial counsel was ineffective for failing to suppress the search and seizure of evidence from Rea’s home because the “home-visit” was utilized to circumvent the requirement of probable cause or a warrant.
The affidavit for warrant of arrest included in the record in this appeal indicates that a “home visit was conducted at the residence of Michael Rea, pursuant to the conditions of his probation.” Also included in the record were the terms and conditions of Rea’s probation—signed and dated on June 20, 2011—which included the condition that he submit his “person, place of residence, and motor vehicle to search and seizure at any time, [7day or night, with or without a search warrant, whenever requested to do [so] by any Department of Community Correction Officer.” At his trial, Rea testified -that he read and signed a Miranda waiver form after which he admitted he had taken photographs of T.S. because he believed taking photographs of-a sixteen-year-old was legal because it was a consenting age. Rea further testified that he signed consent-to-search forms for a Travelstar hard drive, a Hitachi hard drive, and a Maxtor hard drive. Rea’s mother allowed the investigators to take a Toshiba laptop. Rea stated that he allowed the investigators to have access to any of the items that they wanted because he had “nothing to hide” and that he “didn’t ask for a warrant ... [he] let them have it.” Rea admitted he was on probation and was a registered sex offender.
Warrantless searches of probationers have been upheld and the supervision of probationers is a “sp'ecial need” of the state, permitting impingement upon privacy that would not be constitutional if applied to the public at large. Williams v. State, 321 Ark. 344, 349, 902 S.W.2d 767, 770 (1995); see also Cherry v. State, 302 Ark. 462, 467, 791 S.W.2d 354, 856 (1990) (per curiam) (citing Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). The special needs of the parole and probation process call for intensive supervision of the parolee and probationer, making the warrant requirement impractical. Here, acts arose that indicated Rea’s involvement with possession of CDs containing child pornography. Although a parole/probation officer’s ability to conduct a warrantless search is not unlimited, ánd such a search must be reasonably conducted, the facts here suggested reasonable grounds to investigate whether Rea had violated the terms of his probation. See Williams, 321 Ark. 344, 902 S.W.2d 767.
| «Contrary to Rea’s assertions, probable cause is not required during a probationary search, and the probationary “home visit” was not a means to. circumvent a warrant requirement—particularly in light of Rea’s consent to search, which he signed granting the investigators permission to search for the electronic evidence that he argued trial counsel should have suppressed. Trial counsel was not ineffective for failure to make a motion or argument where petitioner has failed to show that the motion or argument would have been meritorious, because the failure to make an argument that is meritless is not ineffective assistance of counsel. Sims v. State, 2015 Ark. 363, 472 S.W.3d 107.
In his Rule 37.1 petition, Rea also argued that he suffered “double jeoparcly violations because all offenses charge the same transaction and include elements of the same offense.” He further argued that, although trial counsel moved for a directed verdict “on the issue[,]” referencing Arkansas Code Annotated section 5-27-602 (Repl. 2006), trial counsel was ineffective “for not making a pre-trial motion to dismiss all [b]ut one of each alleged felony offense and Petitioner suffered prejudice by excessive sentence in violation of statute and constitutional protection.” The trial court denied relief, finding that Rea had raised this same argument in his direct appeal, which had been adjudicated and was no longer cognizable.
While a double-jeopardy claim is a fundamental claim that can be raised for the first time in a Rule 37.1 proceeding, Rowbottom v. State, 341 Ark. 33, 37, 13 S.W.3d 904, 906-07 (2000), Rea has previously raised this same argument in his direct appeal, Rea, 2015 Ark. 431, at 7, 474 S.W.3d at 498. See Sherman v. State, 2014 Ark. 474, at 8, 448 S.W.3d 704, 711 (per curiam) (Appellant could have raised double-jeopardy claita for the first time in his Rule 37.1 proceeding but he merely failed to establish any error in his case.). Rea admitted that he “unsuccessfully argued this claim on direct appeal and [this court] denied his claim that section 5-27-602 imposed multiple prosecutions for the same offense in violation of the double jeopardy clause.” Because this court has previously addressed' and upheld the circuit court’s ruling on this very issue, we will not address it again now. See, e.g., Anderson v. State, 2015 Ark. 18, at 7, 454 S.W.3d 212, 218 (per curiam) (Notwithstanding the fact that sufficiency challenges are not cognizable in postconviction proceedings, this court had addressed the sufficiency of the evidence on direct appeal and upheld the judgment.). To the extent Rea contends trial counsel should have made a pretrial motion regarding the double-jeopardy issue, the double-jeopardy issue raised during the directed-verdict motion was clearly unsuccessful in the direct appeal, and trial counsel is not ineffective for failure to make a motion or argument when petitioner has failed to show that the motion or argument would have been meritorious, because the failure to make an argument that is meritless is not ineffective assistance of counsel. Sims, 2015 Ark. 363, 472 S.W.3d 107.
11rtRea also argued in his Rule 37.1 petition that his appellate counsel was ineffective because counsel failed to research and develop an argument on appeal—similar to his double-jeopardy argument regarding section 5-27-602—regard-ing the double-jeopardy issue particular to Arkansas Code Annotated section 5-27-605, which caused him to be prejudiced by the loss of a meritorious argument on appeal. The trial court denied Rea’s claim, finding that he failed to make a sufficient showing that appellate counsel was ineffective. With regard to claims that appellate counsel was ineffective, this court has recognized that a criminal defendant is entitled to. .the effective assistance of counsel on direct appeal. Taylor v. State, 2015 Ark. 339, at 5-6, 470 S.W.3d 271, 275-76. Additionally, this court has explained that counsel’s failure to raise a specific issue must have amounted to error of such magnitude that it rendered appellate counsel’s performance constitutionally deficient under the Strickland criteria. Id. The petitioner must show that there could have been a specific issue raised on appeal that would have resulted in the appellate court’s declaring reversible error. Id. It is petitioner’s responsibility in a Rule 37.1 petition to establish that the issue was raised at trial, that the trial court erred in its ruling on the issue, and that an argument concerning the issue could have been raised on appeal to merit appellate relief. Id. The failure to make a meritless argument on appeal does not constitute ineffective assistance of counsel. Id.
In his direct appeal, this court noted that Rea failed to make
any argument explaining how his multiple convictions under the statute result in a double-jeopardy violation. Although he has quoted the language of the statute, Rea presents no specific argument, as he has for section 5-27-602, that the General Assembly did not intend multiple punishments for the same act. Therefore, addressing a challenge to section 5-27-605 would require this In court to develop an argument on Rea’s behalf. However, this court does not research or develop arguments for appellants.
Rea, 2015 Ark. 431, at 7, 474 S.W.3d at 498. During Rea’s directed-verdict motion, trial counsel argued that Rea “would move on the same basis that we previously articulated with respect to 5-27-602” and that, regarding section 5-27-605, he wanted to “reduce the four counts to actually one count, again, because the statute doesn’t spell it out that each photo ... is its own separate count, that it’s also a continuing course of conduct as we just articulated under 5-11-10 [sic], and it would violate the double jeopardy provisions.”
Notably, Rea’s claim regarding appellate counsel’s ineffectiveness is con-clusory at best. This court will not grant relief on conclusory allegations unsupported by facts because they are insufficient to warrant Rule 37 relief. The burden is entirely on a petitioner to affirmatively support an ineffective-assistance-of-counsel claim with factual substantiation sufficient to overcome the presumption that counsel was effective and to demonstrate that he was prejudiced by counsel’s poor representation. See Chatmon v. State, 2016 Ark. 126, 488 S.W.3d 501, reh’g denied (Apr. 21, 2016). Although raised at trial, Rea made no assertion that the trial court erred or which specific argument appellate counsel should have made on appeal that would have merited appellate relief—outside a general claim that counsel failed to develop an argument and that Rea was prejudiced by losing a meritorious appellate issue. Taylor, 2015 Ark. 339, at 5-6, 470 S.W.3d at 275-76. Simply put, Rea has failed to establish that appellate counsel was ineffective. The record is clear that Rea failed to establish that he was entitled to post-conviction reliéf, and his appeal is dismissed, rendering his motion for extension of time moot.
liaFinally, we address Rea’s motion requesting “certified copies of records,” which should be treated as a motion for copies at public expense. Specifically, he requests certified copies of the Malvern Police Department Offense/Incident Report, Complaint No. 12-010136, Arkansas Attorney General Special Investigations Division Offense/Incident Report, Complaint No. 12-010136, and the trial transcript to help him properly prepare his brief on appeal.
To be entitled to copies at public expense, a petitioner must demonstrate a compelling need for the copies as documentary evidence to support an allegation contained in a timely petition for postcon-viction relief. Champion v. State, 2010 Ark. 82, 2010 WL 569746 (per curiam); Avery v. State, 2009 Ark. 528, 2009 WL 3488399; Bradshaw v. State, 372 Ark. 305, 275 S.W.3d 173 (2008) (per curiam). Rea does not request copies of the record lodged in this postconviction appeal, and he has cited no reason that he should need a copy of the trial transcript at public expense.
When the request for a free copy of the material is made after the direct appeal has been completed, a petitioner is not entitled to free copying of any material on file with this court merely because he contends that he is indigent. See Mendiola v. State, 2013 Ark. 92, 2013 WL 831010 (per curiam); see also Daniels v. State, 2012 Ark. 124, 2012 WL 859701 (per curiam). Whether the appeal was to this court or to the Arkansas Court of Appeals, a petitioner seeking copies at public expense must show a compelling need for the copy to support a specific allegation contained | isin a timely petition for postconviction relief. See Mendiola, 2013 Ark. 92; see also Vance v. State, 2012 Ark. 254, 2012 WL 1950406 (per curiam).
Rea only contends that he requires the use of the certified copies of the two above-noted incident reports—neither of which are contained in the sealed record in Rea’s direct appeal in case number CR-14-555—and a copy of the trial transcript to prepare his brief for appeal but has otherwise made no showing of compelling need. It should further be noted that when material in a direct appeal or other proceeding in this court is placed under seal, it is sealed for good cause after careful consideration. Ward v. State, 2013 Ark. 250, 2013 WL 2460209 (per curiam). Motions to release sealed materials are decided on a case-by-case basis, and Rea’s claim to a copy of the record at public expense falls far short of demonstrating that he is entitled to a copy of any material on file with this court, regardless of whether it be sealed or not. Id.
Appeal dismissed; motions for extension of time to file brief and use 12-point typeface moot; motion for certified copies of record denied.
. This court takes judicial notice of the record on direct appeal. Davis v. State, 2013 Ark. 118, 2013 WL 1091189 (per curiam).
. Rea made no challenge to the search of the backpack itself, to which he arguably had an admitted possessory interest. However, that argument was not raised in Rea’s Rule 37.1 petition below, and he could not raise it on appeal now because he is limited by the scope and nature of the arguments raised below and cannot add additional or factual substantiation on appeal. Echols v. State, 2016 Ark. 225, 492 S.W.3d 846 (per curiam), reh'g denied (July 21, 2016); Ward v. State, 2015 Ark. 325, at 8, 469 S.W.3d 350, 355 (per curiam), reh’g denied (Mar. 31, 2016). Even if he had made the specific Fourth Amendment challenge to the search of the backpack, Rea would have been unsuccessful. The trial court's order noted that the backpack and CDs were abandoned whep Rea failed to retrieve them from the Malvern Police Department. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. Wilson v. State, 297 Ark. 568, 571, 765 S.W.2d 1, 2 (1989) (citing United States v. Colbert, 474 F.2d 174 (5th Cir. 1973)). At trial, Rea admitted he did not see his backpack after leaving the plasma donation center, and, although he was asked by the Malvern Police Department to retrieve the backpack, his failure to do so was a failure to recover or retrieve his personal items, i.e., he abandoned his backpack and the contents therein. See Wilson, 297 Ark. at 572, 765 S.W.2d at 3. By abandoning his backpack, Rea abandoned his rights to privacy, and he no longer had any reasonable expectation of privacy in the property, the backpack, or its contents.. See id.
. This court held that that section -5-27-602 does not impose multiple prosecutions for the same offense in violation of the double jeopardy clause. Instead, the statute permits separate prosecutions for the knowing possession of "any” prohibited photograph or videotape. As stated by the Pennsylvania Supreme, Court in Commonwealth v. Davidson, 595 Pa. 1, 938 A.2d 198, 222 (2007), those who violate a statute by possessing numerous images are "not entitled to a volume discount.” Consequently, the trial court did not err by rejecting Rea’s argument.
. With respect to postappeal motions that seek a copy at public expense of transcripts lodged in an appeal or other material on file with either this court or the court of appeals, this court rules on the motions because such motions are considered to be requests for postconviction relief. Mendiola, 2013 Ark. 92; Daniels, 2012 Ark. 124 (citing Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981) (per curiam)). | [
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RAYMOND R. ABRAMSON, Judge
|, Appellant Gloria Navarrete appeals from a decree granting the adoption of her granddaughter, S.R., to appellee Heidi Creech. On appeal, Navarrete contends that the trial court erred in granting Creech’s adoption petition because (1) Creech’s actions warrant application of the Arkansas clean-hands doctrine and (2) Na-varrete should be considered a “mother” within the meaning of Arkansas Code Annotated section 9-9-201(a)(l) (Repl. 2015). We disagree with Navarrete’s assertions and affirm.
In 2012, Creech worked as a juvenile probation officer at Southwest Arkansas Counseling and Mental Health Center, Division of Youth Services (“Southwest”). F.R., a minor, came under Creech’s supervision in a families-in-need-of-services (FINS) case. When F.R. was eleven years old, she gave birth to S.R., who is the child at issue in this case. Navarrete is the mother of F.R.
|2In February 2013, Creech learned from Navarrete that F.R. had “run off again.” F.R. was eventually located in Gurdon, Arkansas. When Creech and a translator who also worked at Southwest, Beatrice “Betty” Valdez, attempted to return F.R. to Navarrete’s home in Hope, F.R. became hysterical and made allegations that her stepfather had been raping her since she had her child. F.R. did not want to live there and stated that her mother did not believe her about the sexual-abuse accusations. Three days later, F.R. called and asked Creech to take her daughter, S.R., who was five years old at the time. On February 26, 2013, the circuit court heard the emergency petition for the appointment of guardian of the person and the estate of S.R. The court granted Creech guardianship of S.R. on March 5, 2013. F.R. signed an affidavit of relinquishment and termination with power to consent to adoption on May 16, 2018..
On September 9, 2013, Creech filed a petition for adoption of S.R.; F.R.’s consent and waiver forms mandated by statute were attached. On December 16, 2013, Gloria Navarrete filed a motion to intervene and for continuance of the adoption hearing that was scheduled for December 18, 2013. She argued that she stood in loco parentis to S.R. Creech responded, denying that Navarrete stood in loco parentis. On April 23, 2014, the circuit court granted Navarrete’s motion to intervene, finding that she, “at least on the face of the stipulation, had acquired sufficient significant contact with the minor child to have acquired in loco parentis status.”- The circuit court also noted in its order that the best interest of S.R. was of paramount importance in the case, just as it is in all adoption and custody matters.
Briefs were filed in the adoption proceeding, and a hearing on Creech’s adoption | ^petition was held on March 12, 2015. On September 30, 2015, the adoption petition was granted, and a decree of adoption was entered. Navarrete timely filed her notice of appeal on October 30, 2015, and the matter is now properly before this court.
Navarrete first argues that Creech should be precluded from adopting S.R. pursuant to the Arkansas clean-hands doctrine. The clean-hands doctrine bars relief to those who are guilty of improper conduct in the matter in which they seek relief. Nationsbanc Mtg. Carp. v. Hopkins, 87 Ark. App. 297, 190 S.W.3d 299 (2004). Navarrete implies that Creech violated Arkansas Code Annotated section 17-27-102(8) (Repl. 2010), which defines the practice of counseling, and Arkansas Code Annotated section 17-103-103(2) (Supp. 2015), which defines the practice of social work. Navarrete argues that because Creech was engaged in the practice of counseling and social work without a license within the meaning of Arkansas law, she committed criminal acts and ethical violations. There is no merit to this argument.
Navarrete cites to no agency or authority that has ever accused Creech of any ethical violations or criminal liability. No evidence was presented to show that Creech had committed an improper act or wrongdoing in the scope of her employment. Navarrete has failed to provide persuasive authority or argument to support her position. Our supreme court has steadfastly refused to consider an issue that is not supported by convincing argument or citation to authority and that is otherwise not apparent without further research that the argument is well taken. Rose v. Ark. State Plant Bd., 363 Ark. 281, 213 S.W.3d 607 (2005). While Navarrete cites to Arkansas cases that address the clean-hands doctrine, none are relevant, and she makes no persuasive argument as to how the doctrine is applicable here.
Navarrete next argues that because she had established in loco parentis status vis-á-vis S.R., she should be considered a “mother” within the meaning of Arkansas Code Annotated section 9-9-206(a)(1), and therefore the trial court erred in granting Creech’s adoption 'petition without her consent. Navarrete contends that because the word “mother,” as found in Arkansas Code Annotated section 9-9-206(a)(l), is not specifically defined in Arkansas Code Annotated section 9-9-202 as being limited to a biological mother, our court’s strict construction of adoption statutes has less compelling force and effect in the absence of clear and unambiguous statutory language.
We review adoption proceedings de novo, but we will not reverse the trial court’s decision unless it is clearly erroneous or " against a preponderance of the evidence, after giving due regard to it's superior opportunity to determine the credibility of the witnesses. Hollis v. Hollis, 2015 Ark. App. 441, at 6, 468 S.W.3d 316, 320. We give great weight to a trial judge’s personal observations when the welfare of children, is involved. In re Adoption of Lybrand, 329 Ark. 163, 169, 946 S.W.2d 946, 949 (1997). This court has stated that in cases involving minor children, a heavier burden is cast on the court to utilize to the fullest extent all its power of perception in evaluating the witnesses, their testimony, and the children’s best interest; that the appellate court has no such opportunity; and that we know of no case in which the superior position, ability, and opportunity of the circuit court to observe the parties carry as great a weight as one involving minor children. Hollis, supra.
| ^Navarrete cites to several cases that address the concept of in loco parentis in an effort to bolster her argument that her consent was required prior to the adoption. Our supreme court has explained the doctrine of in loco parentis:
The Latin phrase, “in loco parentis,” literally translated, means “in the place of a parent.” Simms v. United States, 867 A.2d 200 (D.C. 2005). This court has defined in loco parentis as “in place of a parent; instead of a parent; charged fac-titiously with a parent’s rights, duties, and responsibilities.” Standridge v. Standridge, 304 Ark. 364, 372, 803 S.W.2d 496, 500 (1991). A person who stands in loco parentis to a child puts himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to a legal adoption. Babb v. Matlock, 340 Ark. 263, 9.S.W.3d 508 (2000). This relationship involves more than a duty to aid and assist, and more than a feeling of kindness, affection, or generosity. Simms, supra.
Daniel v. Spivey, 2012 Ark. 39, at 6, 386 S.W.3d 424, 428.
While the circuit court allowed Navar-rete to intervene on the basis of in loco parentis status, her argument on appeal is that the adoption should not have been granted because she did not give- her consent. Her argument is unpersuasive. The trial court heard testimony and correctly found that the only consents required had been filed and fulfilled. The biological father of S.R. is unknown; F.R., the biological mother, voluntarily terminated her rights to the child by properly executing relinquishment-and-termination-with-power-to-consent documents, entered her appearance, and waived all notice of summons with respect to the proceedings. Pursuant to Arkansas Code Annotated section 9-9-206(a)(l), the only consent required in this case is that of the mother of the minor. F.R., the child’s biological mother, properly gave her consent. No consent was required from Navarrete regardless of whether she stood in loco par-entis.
| nThe ultimate determination of the child’s best interest is the primary consideration of the trial' court. Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988). Here, Navarrete does not challenge the best-interest finding. Her arguments that Creech acted with, unclean hands and that Navarrete’s consent to the adoption was required are both without merit. Accordingly, we affirm.
Affirmed.
Harrison and Kinard, JJ., agree.
. F.R.’s stepfather, Antonio Navarrete, pled guilty to raping her.
. On October 21, 2014, the chief justice of the Arkansas Supreme Court appointed retired Judge Ellen Brantley to hear this case after Judge Randy Wright had recused. | [
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KENNETH S. HIXSON, Judge
| Appellant Harvey Anderson appeals from the termination of his parental rights to his son, M.A., who was born on January 16, 2014. On appeal, Mr. Anderson argues that because he has a disability within the purview of the Americans with Disabilities Act (ADA), the case plan should have been modified to accommodate his disability pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(h; (Repl. 2015). Mr. Anderson contends that appellee Arkansas Department of Human Services’ (DHS’s) failure to make such modifications resulted in premature termination of his parental rights, and that the order terminating his parental rights should be reversed. We affirm.
|2We review termination of parental rights cases de novo. Mitchell v. Ark Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851. At least one statutory ground must exist, in addition to finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Repl. 2015); M.T. v. Ark Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). 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. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). We will affirm a trial court’s finding that'a disputed fact was proved by clear and convincing evidence unless that finding is clearly erroneous. J.T. v. Ark Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).
This case began on October 27, 2014, when DHS filed a motion for emergency custody of M.A. Attached to the petition was an affidavit stating that Marsha Davis had stabbed Mr. Anderson in the faeé with a screwdriver, resulting in Ms. Davis’s arrest for felony domestic battery. The attack occurred in the couple’s home in the presence of the child. Upon inspection of the home, the family-service worker found a plastic baggie containing cocaine residue and a crack pipe. Mr. Anderson smelled of alcohol and had very slurred speech. Based on the information in the affidavit, the trial court entered an ex parte order for emergency custody on the same day DHS’s petition was filed.
|sOn December 12, 2014, the trial court entered an adjudication order finding M.A. to be dependent-neglected based on parental unfitness as to both parents. The goal of the case was reunification. Among other things, Mr. Anderson was ordered to cooperate with DHS, remain drug free, submit to random drug screens, complete parenting classes, and maintain safe and stable housing. DHS was ordered to arrange appropriate visitation.
In a review order entered on April 14, 2016, the trial court found that Mr. Anderson had complied with some of the case plan, but had not visited the child on a regular basis, had tested positive for cocaine, and had not maintained safe and stable housing. In the review order, the trial court directed Mr. Anderson to complete long-term inpatient drug rehabilitation, and ordered that Mr. Anderson be drug-free before being allowed additional visits with the juvenile.
On October 22, 2015, the trial court entered a permanency-planning order changing the goal of the case to termination of parental rights and adoption. The - trial court found that Mr. Anderson had failed to. complete drug rehabilitation as ordered and had tested positive for cocaine on multiple occasions. In the permanency-planning order, the trial court appointed counsel to represent Mr. Anderson.
DHS filed a petition to terminate Mr. Anderson’s parental rights on November 17, 2015. After a hearing, the trial court entered an order terminating Mr. Anderson’s parental rights on February 12,2016.
In the termination order, the trial court found by clear and convincing evidence that termination of Mr. Anderson’s parental rights was in M.A.’s best interest. The trial court also found clear and convincing evidence of three statutory grounds under Arkansas Code |4Annotated section 9-27-341(b)(3)(B) (Repl. 2015). Pursuant to subsection (ii)(a), the trial court, found that the juvenile had lived outside the home of the parent for twelve months and that the parent had willfully failed to maintain meaningful contact with the juvenile. The trial court also found, under subsection (iv), that Mr. Anderson had abandoned the juvenile. Finally, pursuant to subsection (vii)(a), the trial court found that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that placement of the juvenile in the custody of the parent was contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the place ment of the juvenile in the custody of the parent.
Ashley Middleton, a family-service worker assigned to this case, testified that although Mr. Anderson had entered a long-term drug-rehabilitation program, he left the program long before completion. Ms. Middleton further stated that Mr. Anderson had tested positive for cocaine on numerous occasions. Ms. Middleton testified that over the course of this case, Mr. Anderson had “hit and miss” visits with the child and had not visited the child at all since April 2015. The only time Mr. Anderson saw M.A. after April 2015 was when he met briefly with the child when they were both in attendance at the October 2015 permanency-planning hearing. Ms. Middleton indicated that, on her last visit to Mr. Anderson’s home, the home was inappropriate for a child and that there were multiplé people living there and numerous others coming and going. Ms. Middleton stated that M.A. could not be safely returned to Mr. Anderson and that M.A. was adoptable. She | ^recommended termination of Mr. Anderson’s parental rights based on the best interest of the child.
Mr. Anderson testifibd that he has á learning disability and has difficulty reading and writing. He stated that he receives social security disability benefits. Mr. Anderson stated that he requested an attorney from DHS, but was not provided one until the day of the permanency-planning hearing. Mr. Anderson admitted at the hearing that if he were drug tested he would probably test positive for marijuana.
At the termination hearing,. Mr. Anderson’s counsel asserted that Mr. Anderson had “some learning disability” and a limited ability to read and write, which put. him- at a disadvantage. Mr. Anderson’s counsel argued that DHS should have recognized that disadvantage and offered Mr. Anderson appropriate services, which he believed to be the appointment of an attorney at the beginning of the case rather than waiting until the termination hearing. Mr, Anderson’s counsel argued that, because there was no offer of appropriate family services, DHS had failed to meet its burden of proof with regard to the “other factors” ground for termination. The trial court disagreed with Mr. Anderson’s argument, stating:
Mr. Anderson’s reference to a learning disability does not implicate the reasonable accommodations that the Department is tasked with making in the termination context, given that there has been no documentation of how .certain accommodations on the Department’s part would have in any way caused a different result for Mr.. Anderson. His noncompliance with this case plan has been willful. He has refused to participate in drug treatment. He has refused to maintain his sobriety, and he has refused to visit with his child. The court has heard no evidence | fito indicate that [a] learning disability could have been handled in a different way, shape, or form that would have changed the result in terms of his behavior.
The trial court further noted that DHS does not have the ability to provide legal services to the parent, and that nothing prevented Mr. Anderson from obtaining counsel prior to the termination hearing.
In this appeal, Mr. Anderson, argues that his parental rights were terminated prematurely because he has a disability within the purview of the ADA, and that DHS should have modified the case plan to accommodate his disability pursuant to Arkansas Code Annotated section 9-27-341(b) (3) (B) (vii) C&J. Subsection (vii) of the above statute provides, in its entirety, that a trial court may terminate parental rights if it finds by clear and convincing evidence:
(vii)(q) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity of indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent "the placement of the juvenile in the custody of the parent.
(b) The department shall make reasonable accommodations in accordance tvith the Americans with Disabilities Act of 1990, J$ U.S.C. § 12101 et seq., to parents with disabilities in order to allow them meaningful access to reunification and family preservation services.
(c) For purposes of this subdivision (b)(3)(B)(vii), the ability or incapacity to remedy or rehabilitate includes, but is not limited to, mental illness, emotional illness, or mental deficiencies])]
(emphasis added). In the Americans with Disabilities Act, “disability” is defined at 42 U.S.C. § 12102(1) (2009) as:
(A) a physical or .mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment [.]
|7Mr. Anderson asserts that he satisfies the above definition because he has a learning disability that substantially limits his major life activities of reading, writing, and understanding; the English language. He further posits that his caseworker was aware of his disability, but failed to make reasonable accommodations as required by statute, including the possibility of appointing an attorney at an earlier stage in the proceedings to help assist him by explaining to him the case plan and language contained in the trial court’s orders. He contends, that, because DHS failed to make reasonable accommodations for his disability, the order terminating his parental rights should be reversed;' '
We conclude that the argument being raised on appeal was not sufficiently raised and developed before the trial court. In Mr. Anderson’s answer to the termination petition, he made no claim of any disability. In his testimony, Mr. Anderson did not identify what type of disability he has, and stated only that he does not read and write well, despite his signature on a case plan representing that he could read and understand English. There was also no evidence that Mr. Anderson had a “record” of any impairment covered by the ADA or. that he was “regardéd” as having such an impairment. Mr. Anderson’s counsel stated only thát Mr. Anderson had some unidéntified learning disability related to his alleged reading deficiency and that DHS should have recognized his disadvantage and offered appropriate services (as opposed to reasonable accommodations). Mr. Anderson’s counsel never specifically claimed that Mr. Anderson had a disability within the purview of the ADA, nor was the ADA even mentioned at the hearing. The statute Mr. Anderson now relies on, Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(6), was not brought to the trial court’s attention. |sMr. Anderson’s counsel failed to identify what services Mr. Anderson needed, other than to be appointed counsel at an earlier date, but the appointment of counsel is not a service within the capacity of DHS to provide. An argument must be raised and developed before the trial court to be preserved for review. Harrison v. Phillips, 2012 Ark. App. 474, 422 S.W.3d 188. Because the argument Mr. Anderson now raises on appeal was not sufficiently presented and developed to the trial court below, we hold that it has not been preserved for review.
We further , conclude that, even if appellant’s argument had been preserved for review, it could provide no grounds for reversal. The requirement that DHS make reasonable accommodations for a disability is not an overarching mandate applicable to all grounds for termination under Ark. Code Ann. § 9-27-341(b)(3)(B), as contended by the appellant, but is. instead one .of the elements contained only in the “other factors” ground for termination codified at Arkansas Code. Annotated section 9-27-341(b)(3)(B)(vii). In this case, in addition to the “other factors” ground, the trial court found two additional grounds for termination under subsections (ii)(a) (juvenile has lived outside the home for twelve months and parent willfully failed to maintain meaningful contact) and (iv) (parent has abandoned the juvenile). The record showed that Mr. Anderson visited M.A. only sporadically after M.A.’s removal and failed to visit the child at all (save one happenstance meeting at the permanency-planning hearing) during the ten months preceding the ^termination hearing. Only one ground is necessary to terminate parental rights. Lively v. Ark. Dep’t of Human Servs., 2015 Ark. App. 131, 456 S.W.3d 383. When a parent does not challenge all of the trial court’s findings as to statutory grounds for termination, an unchallenged ground is sufficient to affirm the termination order. Id. Mr. Anderson’s only point on appeal challenges DHS’s failure to provide ADA accommodations, and he fails to separately challenge the trial court’s findings as to the other two statutory grounds, either of which supports the termination of his parental rights.
Affirmed.
Vaught and Brown, JJ., agree.
. The child’s mother, Marsha Davis, also had her parental rights terminated. However, Ms. Davis is not a party to this appeal.
. Ms. Davis has remained incarcerated since then.
. In Ms. Middleton’s testimony, she stated that Mr. Anderson never told her he could not read or write, and that he signed a case plan indicating that he could read and understand English. She did, however, acknowledge that Mr. Anderson had mentioned that he has a learning disability.
. The trial court specifically found that Mr. Anderson's testimony was not credible.
. Pursuant to Ark. Code Ann. § 9-27-341(h)(1)(C), the trial court informed Mr. Anderson in the ex parte emergency-custody order that he had the right to counsel. The record does not show that Mr. Anderson asked the trial court to appoint him counsel at any time prior to the permanency-planning hearing, despite his attendance at numerous proceedings before the court. | [
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BRANDON J. HARRISON, Judge.
11 Tracy Sullivan Loveday appeals the termination of her parental rights to three of her children, M.S., A.L., and K.L. She challenges both the statutory grounds for termination and the circuit court’s best-interest finding. We affirm.
On 24 May 2012, the Arkansas State Police Crimes Against Children Division received a report of child maltreatment involving eight-year-old M.S. The report indicated that M.S.’s father, Steven Sullivan, was sexually molesting her and that Sullivan and M.S.’s mother, Loveday, were selling drugs out of their home. Sullivan had recently been in prison for DUI and had been on parole for less than a year. Loveday was on probation for drug charges.
A family service worker interviewed M.S., who reported that her father had been ^sexually abusing her “since before he went to prison” and that her mother had known about the abuse for the past two weeks. Loveday admitted that she had recently been using methamphetamine and had failed a drug screen for THC, meth, and benzodiazepine. Loveday acknowledged that she had learned of her daughter’s abuse about two weeks before the interview but had stayed with Sullivan while trying to “get a plan.” Loveday admitted she was homeless and could not stay at a shelter because of her drug use.
The Department of Human Services (DHS) exercised a seventy-two-hour hold on M.S. and one-year-old twin siblings, A.L. and K.L., on 25 May 2012. On 30 May 2012, DHS petitioned the Lonoke County Circuit Court for emergency custody and a finding of dependency-neglect. The court granted the motion for emergency custody and, in an order dated 26 June 2012, adjudicated the children dependent-neglected. The order noted that DHS had previously been involved with the family and that there had been seven total reports on the family including one true report for substance misuse in 2005. The case goal was reunification with Love-day, and she was granted visitation conditioned upon passing a drug test.
A review hearing in August 2012 revealed that Loveday had completed her drug-and-alcohol assessment and was attending meetings at Little Rock Outreach. The review order also noted that Loveday was submitting to random drugs screens, had failed a drug screen on August 2, and had plans to begin parenting classes. Another review hearing, held in January 2013, noted that Loveday had completed a psychological evaluation but had not completed the twelve hours of relapse prevention recommended as part of her drug- and-alcohol | .^assessment. The order noted that Loveday was living in Pulaski County and reported that she was attending NA/AA meetings, although she had not provided proof of that attendance. The order also stated that Loveday had not contacted DHS since the beginning of December and that her visitation with the children was suspended. And finally, at a permanency-planning hearing held in May 2013, the court found that Loveday had not visited the children or completed any services since December 2012.
On 7 June 2013, DHS and the children’s attorney ad litem filed a joint petition for termination of parental rights. The petition alleged three grounds: (1) the juveniles have been adjudicated by the court to be dependent-neglected and have continued to be out of the custody of the parents for twelve months, and despite meaningful efforts by DHS to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied; (2) other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juveniles to the custody of the parent is contrary to the juveniles’ health, safety, or welfare and that despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors; (3) the parent has abandoned the juveniles. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), (iv), and (vii)(a) (Supp.2011).
At the termination hearing, Loveday acknowledged that she was currently incarcerated on a three-year sentence and that she was not sent to prison until almost a year after her children had been taken out of her custody. She stated that she had not actively participated in the case and that she “didn’t want to sacrifice my life for my kids.” She testified that she |4had quit using drugs in October 2012; but she also stopped visiting the children because she was “on the run from the law.” She also testified that she had now “given her life over to God” and had no desire to do drugs. Loveday said that she expected to be released from prison early due to overcrowding and planned to get a job and a place to live, report to her parole officer, and follow the case plan. She expressed a desire to reunite with the children once she was released but acknowledged that it would take a minimum of six months to establish an adequate amount of stability.
Kristine Phillips, a family service worker who was the original caseworker on this case, testified that, in the beginning, Love-day was somewhat compliant with the case plan, but that drugs were an ongoing issue throughout the case, and after a certain point Loveday quit participating altogether. Leeisha Williams, another family service worker, testified that she was assigned to the case in April 2013. At that time, she explained, Loveday had been out of contact with DHS for six months; and since that time Loveday had not visited the children or called to check on them. Williams agreed that, from DHS’s perspective, nothing else could be done to bring the parents into compliance and that giving more time to them would not be beneficial. She also agreed that Loveday had not shown a “genuine sustainable investment in complying with the case plan goals or court orders.”
The foster mothers for both M.S. and the twins (who were placed together in a foster home) testified that the children were doing well and that they were willing to keep the children permanently. Finally, Kathleen Armstrong, a DHS adoption specialist, testified that she did not see any factors that would prohibit the adoption of the children.
1 sAfter hearing arguments from counsel, the court ruled that it was terminating Loveday’s parental rights. The written order, entered on 8 October 2013, explained that Loveday’s rights were terminated based on the following:
a. [Loveday] has failed to participate in this case nor has she been compliant with the terms of the case plan or the orders of this court and has not remedied the conditions which caused removal. [M.S.], [A.L.], and [K.L.] have remained out of the home of their parents in excess of 12 months and the grounds pertaining to 9-27-341(b)(3)(B)(i)(a) wherein the juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parents for twelve months and despite meaningful efforts by the department to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied by [Loveday].
b. Under Ark.Code Ann. § 9-27-341(b)(3)(B)(viii) The parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juveniles’ life.... [Love-day] is sentenced to 36 months.
e. As to [Loveday] — The Court specifically finds that [Loveday] chose to save herself, rather than her children. There is no sign of progress as to [Love-day’s] drug use. The Court finds that she is not using drugs now, because she is incarcerated. [Loveday] failed to protect her children from Mr. Sullivan even though she knew of the allegations of sexual abuse. [Loveday] is now sentenced to three years in prison and cannot currently care for her children. Before [Loveday] was incarcerated, she failed to remedy the conditions that caused the children to come into care.
The court also found that it was in the best interest of the children that Love-day’s parental rights be terminated, especially considering the potential harm caused by returning the children to their parents’ custody and the children’s adopta-bility. Loveday appealed.
A circuit court’s order that terminates parental rights must be based on findings proven by clear and convincing evidence. Ark.Code Ann. § 9 — 27—341(b)(3) (Supp.2011); Dinkins v. Ark. Dep’t of Human Servs., 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. Proof of only one statutory ground is sufficient to terminate parental rights. Gossett v. Ark. Dep’t of Human Servs., 2010 Ark. App. 240, 374 S.W.3d 205.
On appeal, we will not reverse the circuit court’s ruling unless its findings are clearly erroneous. Dinkins, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the circuit judge to assess the witnesses’ credibility. Id.
Loveday argues that there was insufficient evidence to support the “failure to remedy” ground for termination relied on by the circuit court. See Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a). As explained above, this ground provides that termination is appropriate if the court finds, by clear and convincing evidence, that the juveniles have been adjudicated to be dependent-neglected and have continued to be out of the parents’ custody for at least twelve months, and despite meaningful efforts by DHS to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied.
Loveday contends that the children were removed because she failed to protect M.S. from sexual abuse, her drug use, and her lack of safe housing. She does not dispute that those conditions were present at the time of removal; instead, she argues that those issues had been remedied before the termination hearing convened. She argues that the hearing testimony 17showed that she was clean and sober, that she hoped to soon transfer into a parole program that would assist her with housing and employment, and that she was recent ly divorced from Sullivan, who had abused M.S.
DHS argues that the circuit court’s failure-to-remedy finding was not clearly erroneous. DHS argues that Loveday’s drug use, which was the cause of her neglect of the children, continued for several months even after the children had been taken, which is enough to support a failure-to-remedy finding. See Gutierrez v. Ark. Dep’t of Human Servs., 2012 Ark. App. 575, 424 S.W.3d 329.
We affirm on this point. The circuit court did not credit Loveday’s assertions that she no longer had a drug problem; instead, it found that she was currently not using drugs because she was incarcerated. Nor had Loveday established safe and stable housing for herself and the children before the termination hearing. Thus, we hold that the circuit court did not clearly err in finding that Loveday had failed to remedy the conditions that caused removal. Because we affirm the court’s finding on this statutory ground, and proof of only one statutory ground is sufficient to terminate parental rights, Gossett, supra, we need not address Loveday’s argument concerning the alternative statutory ground relied on by the court in its order.
Loveday also argues that there is a “complete lack of evidence supporting the trial court’s finding that termination was in the children’s best interest.” Specifically, Loveday denies that there was any evidence to show potential harm to the children if returned to her | scare after her release from prison. In its order, the court found that return of the children to their parents could harm the juveniles’ health and safety because the parents “are not appropriate to care for the juveniles.
The parents do not have an appropriate lifestyle. The parents are not a fit and proper parent for the juveniles. Additionally at the present moment they are incarcerated and are unable to care for the children.” The harm referred to in the termination statute is “potential” harm; the circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm. L.W. v. Ark. Dep’t of Human Servs., 2011 Ark. App. 44, 380 S.W.3d 489. The potential-harm evidence, moreover, must be viewed in a forward-looking manner and considered in broad terms. Id.
Loveday argues that the “tremendous progress” she made in the eleven months prior to the termination hearing, and the fact that she had been drug-free since October 2012, show that she was “perfectly fit to take custody of her children within six months of her imminent release.” She also asserts that giving her this additional time to prove that she could raise her children would not be contrary to the requirements or purpose of the Juvenile Code, and she concludes that the court “erred in not giving [her] additional time to show she was capable of maintaining sobriety, to obtain housing and employment, and raise her children.”
In response, DHS argues that potential harm was shown from Loveday’s failure to follow the case plan and court orders, her failure to obtain and maintain stable housing, and her continued use of illegal drugs. See Allen v. Ark. Dep’t of Human Servs., 2011 Ark. App. 288, 384 S.W.3d 7 (noting that appellant’s continued use of illegal drugs showed potential | gharm to the children); L.W., supra (stating that a failure to comply with court orders can indicate potential harm); Latham v. Ark. Dep’t of Health & Human Servs., 99 Ark.App. 25, 31, 256 S.W.3d 543, 547 (2007) (“[T]he trial court did not err in terminating Latham’s parental rights to B.L. where Latham failed to prove that he could provide for one of B.L.’s most basic needs — a stable home.”).
We also affirm on this point. The circuit court’s best-interest determination was based in large part on its assessment of Loveday’s credibility, and we defer to that assessment. Dinkins, supra. In addition, there was no guarantee that Love-day’s release from prison was “imminent” or that she could establish the requisite stability within six months as she insisted. The goal of section 9-27-341 is to provide permanency in a child’s life in circumstances in which returning the child to the family home is contrary to the child’s health, safety, or welfare and the evidence demonstrates that a return to the home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark.App. 328, 255 S.W.3d 505 (2007). A child’s need for permanency and stability may override a parent’s request for more time to improve the parent’s circumstances. Dozier v. Ark. Dep’t of Human Servs., 2010 Ark. App. 17, 372 S.W.3d 849.
Affirmed.
PITTMAN and GRUBER, JJ, agree.
. Steven Sullivan, M.S.’s father, and Scott Lang, A.L. and K.L.’s putative father, also had their parental rights terminated, but they are not parties to this appeal.
. Sullivan testified at the hearing that he and Loveday were divorced the day before the termination hearing. | [
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Humphreys, J.
As best we can gather from the meager statement of the pleadings, proceedings and testimony abstracted in this case, appellant was sued by appellees in the Sebastian circuit court, Fort Smith district, for damages done to their real estate by appellant in demolishing a long concrete block building partitioned off into 8 apartments, each apartment consisting of 2 rooms downstairs and 2 rooms upstairs.
In addition to alleging appellees’ ownership of lots 15 and 16 in block 8 in Fishback Addition'No. 2 to the city of Fort Smith, Arkansas, upon which the long concrete building was constructed it was alleged that appellant without their knowledge and consent and without legal authority in the summer of 1934 entered in and upon said lands and wilfully, maliciously and wantonly removed therefrom the long concrete block building and sold all the materials salvaged therefrom and converted the' proceeds derived from the sale to his own use and benefits; and that at the time he so wilfully, maliciously and wantonly entered upon said premises said appellant knew that appellees were the owners of said property and that appellees did not learn of appellant’s unlawful actions and trespass upon their property until some time in the year 1938.
They alleged and prayed for $4,000 actual damages to their property and $1,000 as exemplary damages. Appellant answered denying the material allegations in the complaint and, as an affirmative defense, alleged that he had authority from the city of Fort Smith to remove said building. He a1 so pleaded that appellees were barred under § 8928 of Pope’s Digest from recovering any damages from him for tearing down and salvaging the building.
At the close of the testimony the court sustained the plea of the statutory bar of Goldia Johnson, Ruby Holder, and Edna Winters and dismissed their complaint over their Objections and exceptions, but they filed no motion for a new trial and prayed no cross-appeal in the case and are, therefore, not any longer interested parties herein.
The court refused to sustain appellant’s plea of the statute of limitations against the claim of Irene Flynn and submitted the issues as between her and appellant upon the pleadings, evidence and instructions of the court to the jury, resulting in a verdict in her favor for $750, from which is this appeal.
The record as abstracted reflects that on the 22cl day of January, 1940, appellees, Goldia Johnson, Ruby Holder, Edna Winters, and Irene Flynn, daughter of Hazel Price, brought this suit against appellant; that appellees ’ mother and grandmother of Irene Flynn executed a will giving each of her 4 daughters, Goldia, Ruby, Edna, and Hazel a life interest in 2 of the apartments together with 25 feet of the lots corresponding to the location of the apartments given to each daughter. The will provided that at the death of each daughter then her particular apartments, with grounds thereto, should vest in the heirs of the body of the respective daughter. The testator, May Granger, died on the 21st day of February, 1929, and after the will was probated the daughters, all then living and of age, entered into the actual possession of their respective apartments and continued to reside therein as their respective homesteads. Hazel Price died in 1930, leaving a daughter by her first husband 12 years of age whose name was Irene Flynn. She became 21 years of age on December 17, 1939. The parties agreed in the course of the trial that May Granger, the mother and grandmother of appellees, was the owner in fee of said property at the time she died.
There is nothing in the record showing that appellees ever sold or transferred their interest in their property to anyone, but the clear inference is that when appellant tore down the building in the summer of 1934 they still owned it; that a short time before appellant .tore down and salvaged the building complaints had been made to the city and the Health Department that the property was in a bad state of repair and a representative of the Board of Health tacked a notice upon the door for appellees to move out in 24 hours or to repair the building and put it in good condition; that they chose to move out, and that a short time thereafter appellant on the advice of the representative of the Board of Health tore down and salvaged the building, but did so without any judicial order or even without a written order or resolution of the Board of Health.
The testimony is in sharp conflict as to the value of appellees’ apartments at the time they were torn down and salvaged. There is some testimony that the entire building was worth $3,500 to $4,000 and that the apartments had been renting for $8 each per month. The disputed issues of fact were submitted to the jury under correct instructions, or at least we must presume so for none of the instructions are abstracted.
In the motion for a new trial which is abstracted exceptions were saved by appellant to practically all the instructions requested and given on behalf of appellees and exceptions were also saved by appellant and carried into the motion for new trial as to instructions requested by appellant and refused by the court. But as stated above since these instructions were not abstracted, we must conclude that they correctly declared the law applicable to the issues and facts’ in the case.
We are unable to say that there is not substantial evidence in the record to support the finding of the jury as to the damage done to appellee’s apartments. Appellee owned an estate in fee in the apartments by inheritance from her mother to whom the apartments had been willed by her grandmother. Her mother also occupied these apartments as a homestead after she acquired title thereto under the will, so appellee was entitled to the rents and profits on these- apartments after her mother died in 1930. They were destroyed without authority by appellant in the summer of 1934, and he then became responsible to her for the rents and profits thereon until she became 21 years of age. Or to put it differently, she had a right to sue appellant for the rents and profits from the time he destroyed the apartments until December 17, 1939, when she attained the age of 21 which was about five and one-half years or, reduced to months, it would be 66 months at $16 per month for the 2 apartments which would amount to $1,056. This does not take into account any amount that would be due to her as punitive damages. She claimed exemplary damages and there is some evidence tending to show that she is entitled to that character of damages. We think, therefore, there is substantial evidence in the record to sustain the verdict of the jury.-
Appellant contends, that the verdict should be reversed because appellee was barred frpm bringing this suit under § 8928 of Pope’s Digest. The injury done to appellee’s property was done during her minority and under said statute she was entitled to bring her suit for the rents and profits within 3 years after she became 21 years of age. She did not become of age until December 17, 1939, anci she brought this suit on January 22, 1940, which was less, than a year after she attained the age of 21. Appellant contends that she was barred unless she brought the suit within 3 years after she attained the age of 18, but that contention does not take into account that she had a homestead interest in addition to her fee estate in the property. This court said in the case of Kessinger v. Wilson, 53 Ark. 400, 14 S. W. 96, 22 Am. St. Rep. 220, that: ‘ ‘ The rule is, where there are two separate rights of entry, the loss of one by lapse of time does not impair the other.” Also, see Shepherd v. Zeppa, Trustee, 199 Ark. 1, 133 S. W. 2d 860, and cases cited therein, and Kitchens v. Wheeler, 200 Ark. 671, 141 S. W. 2d 34.
No error appearing, the judgment is affirmed.
G-bieéin Smith, C. J., dissents on rehearing. | [
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Smith, J.
This suit is a controversy between Rural Special School District No. 3, of Columbia county, as plaintiff, and Magnolia Special School District No. 14, of the same county, as defendant, as to whether sections 15 and 22, township 17 south, range 20 west, are a part of the first-named or of the last-named district..
We will refer to the districts by their numbers, for brevity. District 3 alleged that since April 25, 1927, the sections of land above-described have been assessed for school taxation as being in district 14, and all taxes levied and paid on said assessments have been credited to district 14, whereas said lands should have been assessed as being in district 3, and the taxes credited accordingly. There was' a prayer for the adjustment of taxes so erroneously collected and credited to district 14, and that the assessor be restrained from assessing said lands as being in district 14. There was a prayer also for an accounting of these taxes, indeed, this appears to be the basis upon which the jurisdiction of equity was invoked. The answer filed by district 14 denied that the lands were in district 3, but there was a decree in favor of district 3 awarding the relief prayed, from which is this appeal.
The records of the 'County Board of Education and of the county court are in hopeless confusion and contradiction as to the district of which sections 15 and 22 are a part. This is probably due to the fact that for many years the lands were sparsely settled and prior to the discovery of oil in 1937 of but little value. The tax records show that from 1895 to 1927 the lands, or portions thereof, were variously assessed as being in districts Nos. 1, 3, 4, 14, 21, 31, and 54.
It appears that on March 24, 1924, the county board of education made an order changing the boundary lines of district No. 21 to include all of both sections 15 and 22. It is insisted that this order is void as not having been made upon proper notice, and that proper record thereof was not made.
On July 13, 1927, the county board of education made an order, which appears regular in form and properly entered in county court record “M,” p. 559, by which district No. 21 was dissolved and annexed to district 14. Thereafter, for the year 1927, sections 15 and 22 were assessed as being in district 21, but since then both sections have been assessed as being in district 14, until the institution of this suit, including taxes for the year 1938.
On July 26, 1902, the county court made an order forming and creating district No. 4 out of a part of district 3, which included all of section 22 except 80 acres, but not including any part of section 15.
On July 10, 1908, the county court made an order further subdividing district 3 to form a new district, which was numbered 31. The effect of this order was to take sections 15 and 22 out of district 3, if they were a part of district 3, and placing these sections in district 31.
There was offered in evidence an order of the county court, made July 19, 1913, further dismembering-district 3 and attaching portions of its territory to district No. 72; but that order only confuses, as the territory detached from district 3 and made into district 72 does not include any part of either section 15 or 22.
On April 25, 1927, the county board of education made an order “establishing common school districts numbered 3, 31, 72, and Special School District No. 4, into a Rural Special School District, which was designated as Rural Special School District No. 3, of Columbia county,” which is the plaintiff district and appellee here. This order describes the lands which are included in the new district, designated as Rural Special School District No. 3, and sections 15 and 22, township 17 south, range 20 west, are among the lands described. It is upon this order that plaintiff district-appellee here- — ■ relies to support its contention that the two sections of land in controversy are a part of its territory.
Opposed to this contention is the insistence that sections 15 and 22 did not become a part of Rural Special School District No. 3, for the reason that neither section was then a part of any one of the four districts consolidated into Rural Special School District No. 3. But, as has been said, these two sections were described as a part of the territory formed into Rural Special School District No. 3.
We have, therefore, this situation. The two sections were made a part of district 21, which district was dismembered and annexed to Special 'School District No. 14, this last order having been made on July 13, 1927, this order being subsequent to the order of the board of education, above referred to, made April 25, 1927, in which the two sections were specifically described as being a part of Rural Special School District No. 3, then formed.
Orders such as these are properly reviewable on appeal; but no one has appealed. Such orders, when void upon their face, may be quashed on certiorari; but this is not always done even when they are void.
In the case of Rural Special School Districts Nos. 17 and 95 v. Ola Special School District No. 10, 182 Ark. 197, 31 S. W. 2d 129, certiorari was prayed to quash an order consolidating certain school districts, upon the ground that the order of consolidation had been made without notice. The relief prayed was denied, it being held (to quote a headnote) that “An effort to quash an order or judgment in a matter involving the public interest, such as the consolidation and creation of schools, is a matter resting in the discretion of the court, which should not grant relief unless the remedy is sought within apt time. ’ ’ That holding was reaffirmed in the case of White v. Board of Education of Independence County, 184 Ark. 480, 42 S. W. 2d 989.
In the case of Cotter Special School District No. 60 v. School District No. 53, 111 Ark. 79, 162 S. W. 58, the facts were that the county court had dismembered a special school district, and it was said that the court was without jurisdiction to do so, and on certiorari that order of the county court was quashed. It was there said that “While the issuance of a writ of certiorari generally rests within the sound discretion of the court, yet it should always issue to correct an illegal and void order, unless there are special circumstances to bar those applying for it by laches or estoppel.”
We think the special circumstances of this case are such that appelleé district is not entitled to any relief, equitable or otherwise. In addition to the facts above stated, it appears that for many years sections 15 and 22 were of such small value that no one was much concerned as to the district in which they were assessed, and the number of children living on these sections was so few that they were enumerated in first one district and then another. Some of the small number of children living on 'these lands attended school in one district, while other children attended school in a different district. . But since 1927, the lands have been assessed in district 14, and not elsewhere, and that district appears to have enlarged its school facilities to accommodate the children living on these sections. The situation has changed. Oil was discovered in this territory in 1937, and since that time the lands have become very valuable, and will now afford much revenue to the district of which they are a part. Maps were made for public use showing the division of the county into school districts. One of these was conspicuously posted in the office of the county superintendent of schools, and later in the office of the county examiner of schools. One of these maps was attached to the wall in the assessor’s office for the information of citizens- in making their assessments. An election was held February 1, 1936, authorizing a loan of money to district 14 for the payment of which a tax of one mill was levied annually on all the property of the district.
Each side invokes the aid of various acts designed to cure defective orders in the organization of the school districts of the state. One of the latest of these is act 169 of the Acts of 1931, of which it was said in the case of Common School District No. 42 v. Stuttgart Special School District No. 22, 187 Ark. 119, 58 S. W. 2d 680: “We think that § 54 of act 169 of 1931 is applicable to the order of the county board of education made and entered on March 8, 1930, and that all omissions and irregularities therein, whether by lack of petition or notice, are cured and validated by said act, and that said order of the county board of education of Arkansas county has established the true boundary line between said two districts.”
But these curative acts, if here applied, would cure orders placing §§ 15 and 22 in both districts, and we are of opinion, therefore, that this case must be decided without reference to these curative acts, and we place our decision upon the ground herein previously stated, that is, that it would be inequitable to grant appellee the relief prayed under the facts in this case.
The decree will, therefore, be reversed, and the cause will be remanded with directions to dismiss it. | [
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Humphreys, J.
Appellee, Minnie E. Yadon, was the widow of Jacob C. Yadon, who died in the year 1923 or 1924 leaving said widow and five small children. About the year 1927 or 1928 the widow and children moved from the Greenwood district of Sebastian county to Fort Smith, Arkansas, where they resided as a family, the widow being the head thereof after the death of her husband. So far as this record reflects she did not acquire a home in her own name until August, 1939. At that time she purchased a home for about $600 described as lot 3 in block 47 of Bailey’s Addition to the city of Fort Smith, Arkansas. At the time of the purchase of the property only one child, Mary Yadon, was living with her. Mary had lived with her from birth and moved with her mother to the property her mother bought in Bailey’s Addition and continues to live with her mother in the home. At the time appellee purchased the property she moved her household goods of the value of about $119 into the home and she and her daughter have continued to reside therein since the date of the purchase. The house and all of the furniture in it belonged to appellee. She paid all the utility bills and other bills incident to housekeeping and directed the affairs of the home.
On the 20th day of November, 1939, appellant, as an intervener in a partition suit between appellee and others as plaintiffs and Paul C. Yadon, defendant, of certain property in the Greenwood district of Sebastian county, obtained a judgment against appellee in the sum of $60 and on the third day of October, 1940, he procured an execution on his judgment against appellee in the sum of $67.45 which amount included the judgment, interest and costs and placed same in the hands of the sheriff of Sebastian county, Arkansas, and directed the sheriff to levy on lot 3, block 47 in Bailey’s Addition to the city of Fort Smith, Arkansas, in which appellee and her daughter, Mary, had been residing since August, 1939. It seems that the execution was not levied on appellee’s household goods and furnishings. After the real estate was levied upon, appellee filed a schedule of exemptions with the clerk of the court out of which the execution was issued in regular form claiming said property as her homestead and procured a supersedeas against the execution.
■On November 18, 1940, appellant filed a motion to quash the supersedeas and upon a hearing had on the 12th day of December, 1940, the court overruled the motion to quash the supersedeas from which judgment an appeal has been duly prosecuted to this court.
The testimony reflected by the record was, in substance, to the effect that Mary, who is now residing with appellee, is twenty-five years of age and is the only one of the children still residing with appellee; that she is able to work and does work and contributes what she can out of her earnings toward the maintenance of the home;'that she did that prior to and since attaining her majority; that her mother charged her no board and that there was no arrangement or agreement between them for her to pay any board; that the daughter had never married and was living with her mother just as she had done all her life; that the amount contributed by the daughter to the mother was in the nature of a voluntary gift and not as an exaction on the part of the mother for maintaining and supporting her; that the daughter had never managed or controlled the household affairs; that the relation of mother and daughter existed between them just as it had during the daughter’s entire life.
Appellant contends for a reversal of the judgment-sustaining the supersedeas issued by the clerk against the execution on the ground that Mary, the daughter, had attained her majority before appellee acquired her home and that she was not dependent upon her mother for her support and maintenance.
Appellant contends that the sole question at issue in this case is whether or not appellee, Minnie E. Yadon, was the head of a family at the time the execution in question was issued and levied upon the real estate occupied by her as a home, so as to entitle her to claim the right of exemption provided in art. IX, § 3, of the Constitution of 1874, and § 7178, Pope’s Digest, of the statutes of Arkansas.
Article IX, § 3 of the 'Constitution of 1874 is as follows:
“The homestead of any resident of this state who is married or the head of a family shall not be subject to the lien of any judgment, or decree of any court, or to sale under execution or other process thereon, except such as may be rendered for the purchase money or for specific liens, laborers’ or mechanics’ liens for improving the same, or for taxes, or against executors, administrators, guardians, receivers, attorneys for moneys collected by them and other trustees of an express trust for moneys due from them in their fiduciary capacity.”
Section 7178 of Pope’s Digest is in substance the same as the constitutional provision quoted above.
We think that the social status of the family existed between appellee, the mother, and the daughter, Mary, at the time appellee purchased her home and moved onto the property with her daughter and that the social status of the family was not interrupted simply because Mary had attained her majority at the time the mother purchased her home. It is true that at the time appellee purchased the home, Mary, the daughter, was not wholly dependent upon appellee for her support, but the record reflects that she was partially dependent upon her mother therefor. She paid no rent whatever to her mother for her occupancy in the home and only contributed what she could spare to assist her mother in paying the necessary household expenses. The record shows that she was earning when she worked (and that she worked most of the time) about $13 a week. It may be that she could have bought all of her own clothes and paid board elsewhere out of her earnings, but we do not think it was legally incumbent upon her after attaining her majority and obtaining employment to sever the relationship that existed between her mother and herself. Neither do we think it was legally incumbent upon the mother when the daughter attained her majority to require her to vacate the home or charge her with board simply because she became of age and accepted employment. The status of the family was established thoroughly between the mother and daughter during the twenty-five years they had lived together and that status or relationship certainly entitled the mother to claim that she was the head of a family. In. fact, she was the head of a family under a liberal construction of the constitutional provision and the section of Pope’s Digest above referred to. We said in the case of Franklin Fire Insurance Co. v. Butts, 184 Ark. 263, 42 S. W. 2d 559, that: “It is the settled policy of this court that our homestead laws are remedial and should be liberally construed to effectuate the beneficent purposes for which they were intended.” This rule that a liberal construction must be given to the provisions of our homestead laws was recently reiterated in the case of City National Bank v. Johnson, 192 Ark. 945, 96 S. W. 2d 482.
Under.the rule of liberal construction as to who is the head of a family as used in the constitutional provision aforesaid we think that the head of a family is one in authority where the status or relationship of the family exists. In the instant case, appellee, after the death of her husband, was the one in authority and control of the family and this relationship has never been broken or disintegrated by the removal of all the children from the family circle. One of her children has always resided with, her and was residing with her at the time she purchased the property in question and impressed same as a homestead by actually moving into and occupying same with her daughter.
No error appearing, the decree is affirmed. | [
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Holt, J.
This appeal comes from á decree of the Lincoln chancery court partitioning 320 acres of land.
The land involved lies in sections 21, 15 and 22, Lincoln county, Arkansas, that lying in section 21 is described as: South half (S%) of the northwest quarter (NW]4), northeast quarter (NE%) of southwest quarter (SW%) and southeast quarter (SE%) of southeast quarter (SE1/^) of section 21, in township ten (10) south, range eight (8) west, containing 160 acres, more or less.
And that lying in sections 15 and 22 is described as: South half (S%) of southwest quarter (SW%) of southeast quarter (SE]4) and south half (S%) of southeast quarter (SE1/^) of southeast quarter (SE14) of section 15; north half (N%) of northeast quarter (NE%) and' southeast quarter (SE%) of northeast quarter (NE14) of section 22, all in township ten (10) south, range eight (8) west, containing 160 acres, more or less.
Dr. J. A. Stewart died intestate September 12, 1905, leaving surviving his widow, Mrs. L. A. Stewart, and a daughter, Mrs. A. F. Williams (nee Birdie Stewart), as his sole heir. A brother, Young Stewart, and a sister, Mattie Stewart Tucker, also survived Dr. Stewart, and appellees here are the heirs of this brother and sister.
Mrs. A. F. Williams died intestate November 17, 1931, without issue, leaving surviving her husband, Dr. A. F. Williams, and her mother, Mrs. L. A. Stewart.
Mrs. L. A. Stewart died intestate June 4, 1938, leaving as her sole heirs appellants herein, to whom we shall refer as the Newton heirs.
In its decree the court below held that title to all the land in question vested in Clyde E. Stewart, et al., appellees the blood relatives of Dr. J. A. Stewart, deceased; that the land constituted an ancestral estate and divested any right or interest in said land out of the heirs (appellants here, the Newton heirs) of Mrs. L. A. Stewart, who was the wife of Dr. J. A. Stewart.
The question for review here is whether the court erred in confirming title to the above described land in appellees (the Tucker and Stewart heirs) as the heirs at law of Dr. J. A. Stewart, deceased, as ancestral property, or should have confirmed and vested the title to all or a part of the said property in appellants (the Newton heirs) as the heirs of Mrs. L. A. Stewart, deceased.
It is undisputed that Dr. J. A. Stewart purchased the land described in section 21, swprai, at tax sales prior to his death in 1905, receiving certificates of purchase therefor; that in 1907, more than two years subsequent to his death, seven different tax deeds were issued to the heirs of Dr. J. A. Stewart, conveying this land. All deeds bear the same date and are identical except for the description, consideration, and date of sale, and, among other things, contain the following recitals:
“And whereas, at the time and place aforesaid J. A. Stewart of the County of Lincoln and State of Arkansas, having offered to pay the sum of two dollars and twenty-three cents, being the whole amount of taxes, penalty and costs then remaining due and unpaid on said property, for the whole of said lands, which was the least quantity bid for, and payment having been made by him to said collector, said property was stricken off to him at that price; ...
“And whereas, the legal heirs of said J. A. Stewart, deceased, having produced and presented to me the certificate of purchase executed to him by the collector of revenue of said county;
“Now, therefore, I, H. D. Palmer, clerk of the county court of the county aforesaid, in consideration of the said sum of money to the collector paid, and by virtue of the statutes in such cases made and provided, have granted, bargained and sold, and by these presents do grant, bargain, and sell, unto the said legal heirs of said J. A. Stewart, deceased, his heirs and assigns, the real property aforesaid, and more particularly described as follows, ....
“To have and to hold unto them the said legal heirs of J. A. Stewart, deceased, his heirs and assigns forever; subject, however, to all the rights of redemption provided by law. . . .” '
"We think it clear that under the similar provisions of all of these tax deeds this land was deeded to and vested in Dr. J. A. Stewart’s only heir, his daughter, Mrs. Birdie Stewart Williams, subject only to the widow’s dower. Birdie Stewart Williams having inherited this land from her father, the estate was ancestral and upon her death without issue, followed by the death of her mother, Mrs. L. A. Stewart, who held only a life estate in the land, appellees inherited as the blood relatives of Dr. J. A. Stewart.
In Howard v. Grant, 107 Ark. 594, 156 S. W. 433, the purchaser of certain school land from the state died before paying all of the purchase price. Subsequent to the •purchaser’s death, his widow finished paying the amount due on the purchase price and took a deed from the state in favor of the heirs of James Green, who at the date thereof consisted solely of Jessie Green. The effect of this court’s holding there is that the estate inherited by the daughter, Jessie Green, from the father was ancestral and that the land was not a new acquisition.
The record reflects that some ten years after the death of Dr. J. A. Stewart, Mrs. L. A. Stewart on March 20, 1915, acquired deed to the land described in sections 15 and 22, supra, from A. IT. Newton, administrator of the estate of Mrs. H. E. Newton, deceased, for a consideration of $533.33. There is no evidence that this land was bought for the benefit of Dr. J. A. Stewart’s estate, or out of funds belonging to his estate. The terms of the deed conveyed title in fee to Mrs. L. A. Stewart.
September, 1921, Mrs. L. A. Stewart and Mrs. Birdie Stewart Williams filed suit in the Lincoln chancery court seeking to have quieted and confirmed in them title to the land here involved. They alleged in their petition ownership of the land described in sections 15 and 22 to be in Mrs. L. A. Stewart by virtue of the administrator’s deed to her of March 20,1915; that at his death Dr. J. A. Stewart was the owner and in possession of the land described in section 21; that he acquired this land by purchase at tax sales prior to his death in 1905 and that two years following his death “plaintiffs presented said certificates of purchase to the clerk of Lincoln county and received from him clerk’s tax deeds conveying to these plaintiffs the above described land as the heirs at law of the said J. A. Stewart”; that Dr. Stewart died intestate in 1905 and left surviving his widow, Mrs. L. A. Stewart, and his daughter, Mrs. A. P. Williams (nee Birdie Stewart) as his sole and only heir; and prayed “that the title to said land be confirmed and approved in the plaintiffs and sole surviving heirs at law of the said J. A. Stewart . . . ” A confirmation decree was entered April 4, 1922.
The purpose and effect of this confirmation decree was to confirm in the widow and daughter of Dr. Stewart such title as they claimed to own at the time of the filing of the petition for confirmation, that is the tax deeds to Dr. Stewart and the administrator’s deed to Mrs. Stewart. The petition for this decree recites how the title to this land was acquired, that is by tax deeds to Dr. Stewart for the land described in section 21 and by an administrator’s deed to Mrs. Stewart for the land described in sections 15 and 22. The notice required by law published upon this petition makes plain also that this was the purpose of the confirmation proceeding. The confirmation decree confirmed these titles, that is the tax deeds to Dr. Stewart were confirmed and the administrator’s deed to Mrs. Stewart was confirmed. There was no adjudication in the confirmation decree that all the lands were ancestral, only the lands acquired by the tax deeds, that in section 21 described, supra, could have been ancestral as the administrator’s deed was made long after Dr. .Stewart’s death.
This proceeding is not an attach, collateral or otherwise, upon the confirmation decree. We are only interpreting it and our interpretation is that the decree did only what the petitioners prayed, that is to confirm the tax deeds and the administrator’s deed. Seven of these deeds so confirmed, conveyed title to the heirs of Dr.' J. A. Stewart in the land in section 21, the other deed also confirmed, conveyed title to Mrs. Stewart in the land in sections 15 and 22, so that the heirs of Dr. Stewart have title to the land conveyed to their ancestor, while the heirs of Mrs. Stewart have title to the land conveyed to and confirmed in their ancestor.
For the error indicated, the decree is reversed, and the cause remanded with directions to vest title in appellants, the'Newton heirs, to the land described in sections 15 and 22. - In all other respects, the decree is affirmed.
Costs to be shared equally between appellants and appellees. | [
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Per Ctjriam.
Petitioner asks an order of this court directing her husband, Carl Gray, to pay $50 monthly maintenance, an attorney’s fee, costs, and that a pending-appeal be advanced.
May 22,1941, petitioner was awarded $50 per month, $50 for her attorney, and $15 suit money. An appeal was granted Carl Gray, but was not perfected. The clerk of the chancery court accepted a supersedeas bond, but during the same day indorsed it: “Approved by mistake, and approval set aside.”
June 19 — the day the supersedeas bond was approved and then canceled — the chancery court, when asked to enforce its judgment of May 22 by citation for contempt, found that the defendant was in default, but held that jurisdiction liad been lost, because an appeal bad been prayed. It was also held that the clerk was without authority to recall the supersedeas.
We think the cause should be remanded to the chancery court with directions to assume jurisdiction and make appropriate orders for enforcement of the decree. In East v. East, 148 Ark. 143, 229 S. W. 5, it was held that our statutes provide adequate remedy for the enforcement of decrees for alimony and maintenance in divorce cases. Crawford and Moses’ Digest, §§ 3506, 3509. These sections appear as §§ 4388 and 4391 of Pope’s Digest. In the East case it was said that these statutes authorize imprisonment for refusal to obey the orders of the court and to compel obedience of such orders. Ex parte Caple, 81 Ark. 504, 99 S. W. 830.
In the instant case the trial court’s jurisdiction was not affected by the clerk’s erroneous acceptance of an insufficient supersedeas bond; nor could the judgment be superseded except by authority of the court. The order of the court below was based upon an erroneous application of § 2768 of Pope’s Digest, which relates to the discharge or to the strengthening of defective supersedeas bonds; but that section has application only to appeals to this court which have been perfected. | [
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RITA W. GRUBER, Judge.
1,A jury convicted appellant Donnie Ray Slater of delivery of cocaine, and he was sentenced to forty years’ imprisonment. His sole argument on appeal is that the evidence was insufficient to support the verdict. We agree, and we reverse and dismiss his conviction.
The testimony at trial showed that Officer Houston Talley and Officer David Chastain of the Arkansas State Police, narcotics division, were working with a confidential informant named Lance West. On April 11, 2007, the officers and Mr. West attempted to conduct a controlled buy from Mr. Slater. Officer Talley testified that, before the controlled buy, they searched Mr. West and his truck to make sure that he had no drugs, money, or weapons and then gave him forty dollars for buy money. They also fitted Mr. West with an audio recorder.
They then followed Mr. West to Horton Motor Company, where Mr. Slater worked, Rand parked across the street to conduct surveillance. Mr. West parked his truck in the shop’s parking lot, got out, and went inside the shop. Both officers testified that Mr. West came out of the shop with a black male (who was never identified) and the two men got into Mr. West’s truck. Mr. West started to leave the parking lot when a car pulled into the lot and Mr. West backed up his truck. Mr. West’s passenger got out of the truck and went back inside the shop. At that point, Officer Talley testified that the black, male driver of the other car (later identified as Mr. Slater) got out of his car, approached the driver’s side door of Mr. West’s truck, and went inside the shop with Mr. West’s passenger. Mr. West got out of his truck but stayed outside the building. After a minute, Mr. Slater came back outside and began talking with Mr. West. Officer Talley testified that the two men were behind Mr. West’s truck, that he could see their heads and bodies, and that they were moving around. Neither of the officers witnessed an exchange of anything between the two men. After conversing for three or four minutes, Mr. West got in his truck and left the parking lot. The officers followed him and met at a predetermined location, where Mr. West gave the officers what was later determined to be .22 grams of crack cocaine. Mr. West no longer had the buy money in his possession.
Officer Talley also explained that most of the time when a confidential informant gets in the car and is asked to drive somewhere, that means there are no drugs at that place, and they are going to pick the drugs up somewhere else. He said that he confirmed that this is what Mr. West and the first black male were doing by listening to the audio recording. |sOfficer Chas-tain testified that he could say “according to the audio recording, the first black male didn’t make a sale. No one else was there besides black male number two [Mr. Slater].”
The audio recording was played for the jury. Most of the recording was inaudible. At the beginning of the recording, an unidentified male asked, “Where’s Donnie at?” An unidentified male responded, “He went up the road” and said that he would be back in a minute. An unidentified male asked, ‘What do you need man?” and the response was, “I’m looking for a forty.” Officer Chastain explained that a “forty” generally means forty dollars’ worth of crack cocaine. Later in the recording, an unidentified male said, “Make a left,” and shortly thereafter an unidentified male said, “There’s Donnie right there. Right there.”
Here is the transcript of the recording from that point, beginning at the time that Mr. Slater appears on the scene and ending when Mr. West leaves the parking lot in his truck:
Unidentified Male: Is that Donnie?
Unidentified Male: Right there. It looks like him there.
Unidentified Male: [Inaudible.]
Unidentified Male: [Inaudible.]
Unidentified Male: [Inaudible.] Put a [inaudible] transmission in there.
Unidentified Male: Oh, is ya?
Unidentified Male: Yeah.
Unidentified Male: My tires [inaudible].
Unidentified Male: All right. You want me to pull up there?
| ¿Unidentified Male: No, [inaudible].
Unidentified Male: Meet you at Little John Quick?
Unidentified Male: [Inaudible.]
Unidentified Male: Yeah, everything.
Unidentified Male: How long have you been in business?
Unidentified Male:' About a month. [Inaudible.]
Unidentified Male: How much you want for it?
Unidentified Male: Five hundred dollars for the motor and transmission. [Inaudible] I’ll holler at you. We’ll see you later.
On this evidence, the jury convicted Mr. Slater of delivery of cocaine. On appeal, Mr. Slater contends that the evidence was insufficient to support a conviction because there was no direct evidence that he delivered cocaine to Mr. West and because the jury had to resort to speculation to conclude that Mr. Slater, rather than the oth er unidentified black male, sold the drugs that Mr. West turned over to the officers.
In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict was supported by substantial evidence, direct or circumstantial. Clemons v. State, 2010 Ark. 337, at 2, 369 S.W.3d 710, 712. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other without resort to speculation or conjecture. Id. Circumstantial evidence may be sufficient to support the finding of guilt in a criminal case, but it must exclude every other reasonable hypothesis consistent with | r,innocence. Lockhart v. State, 2010 Ark. 278, 367 S.W.3d 530. Whether the evidence excludes every other reasonable hypothesis is a question for the jury to decide. Clemons, 2010 Ark. 337, at 3, 369 S.W.3d at 712. Upon review, this court’s role is to determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id.
The evidence supporting the verdict in this case is slim. Mr. West was searched before the alleged transaction to ensure that he did not have any drugs and he was given forty dollars as buy money. He returned to the officers after the alleged transaction with about forty dollars’ worth of cocaine and no buy money. While Mr. West was under the officers’ surveillance, he came in contact with two men. He went into the shop with the first man, came out with the man, got into his truck, and the two started to leave the parking lot. At that point Mr. Slater drove up, Mr. West backed up, and the passenger got out of Mr. West’s truck and went inside. Mr. Slater got out of his ear and also went inside the shop. Mr. Slater then came back out, at which time he and Mr. West had a three-or-four-minute conversation. Mr. West got in his truck, left the lot, and met the officers at a predetermined destination.
A mostly inaudible recording of Mr. West’s conversations with these men was introduced into evidence. Officer Talley testified that he confirmed his belief that Mr. West and the unidentified black male were getting into Mr. West’s truck to go get drugs somewhere when he listened to the audio recording. Officer Chastain said that he could tell from the audio recording that the first black male did not make a sale and that Mr. Slater was |fithe only other person there.
What is missing in this case is critical. No one testified that he saw Mr. Slater sell drugs to Mr. West. The confidential informant, Mr. West, did not testify; neither of the surveillance officers saw the drug buy take place; no camera recorded the buy; and the audio recording does not evidence any exchange between any of the men recorded. Also important here is the fact that the confidential informant came into contact with more than one potential seller. Indeed, the only time Mr. West was out of the officers’ observation was when he was inside the shop with the unidentified black male before Mr. Slater ever appeared on the scene.
While we appreciate the officers’ knowledge, training, and experience in these types of drug transactions, we hold that this evidence is not forceful enough to compel a conclusion that Mr. Slater sold drugs to Mr. West. We find it just as likely based on the testimony and audio recording that the unidentified male provided the drugs to Mr. West. Because the evidence fails to exclude every other reasonable hypothesis other than Mr. Slater’s guilt and the jury had to resort to speculation and conjecture in reaching its verdict, we reverse and dismiss Mr. Slater’s conviction.
Reversed and dismissed.
PITTMAN, HART, and BROWN, JJ„ agree.
ROBBINS and WYNNE, JJ., dissent.
. Mr. West passed away before trial. | [
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PHILLIP T. WHITEAKER, Judge
_JjAppellant Gádrian Hill was convicted by a Bradley County jury of breaking or entering into a vending machine and was sentenced by the court to twelve years in the Arkansas Department of Correction. He appeals the sufficiency of the evidence. While he admits there was evidence' of damage to the vending machine, he claims there was no evidence that he actually gained access to the portion of the machine containing the money; therefore, at most, he was only guilty of attempted breaking or entering. Because such evidence is unnecessary, we affirm.
The facts of this case are fairly straightforward. The Warren Police Department was conducting investigations into vending-machine vandalism and theft. The mo-dus operandi was for dispatch to receive a 911 call indicating shots had been fired. When officers were dispatched to the area of interest for the discharge of shots, the vandalism and theft would | aoccur at another location. At approximately 10:20 p.m. on February 6, 2014, a dispatcher received a similar 911 call of the discharge of shots. Suspecting that the phone calls were a diversionary tactic designed to facilitate a vending-machine theft, the officers decided to conduct surveillance on several vending machines in town in addition to responding to the area of interest.
At approximately 2:00 a.m. on February 7, Officer Michael Sharp observed Hill walk up and strike a vending machine with a metallic object. The front of the machine was damaged, and the validator, which verifies paper currency, was detached and turned sideways, providing full access to the money inside. Officer Sharp confronted Hill, who fled. Officer Sharp gave chase and ultimately apprehended Hill. No money had been taken from the machine. '
Hill was subsequently .charged with! breaking or entering, and the foregoing evidence was presented by thé State. At the close of the State’s case, counsel for Hill made a motion for directed verdict arguing that there was no evidence that Hill broke into or entered the machine. Counsel admitted that there was evidence that Hill took a hammer and broke parts of the machine and that there was evidence that it was Hill’s intent to steal the money inside. However, he asserted that Hill’s actions were not sufficient to complete the crime. He argued that, at the time of the officer’s arrival, Hill was still hammering ón the machine in an attempt to gain access and that, even though Hill may have actually been able to access the money at |sthat point, there was ho evidence that he had attempted to do so or that he had obtained' any money from the machine. Instead, he was interrupted by Officer Sharp before he could complete the crime.
The court denied the motion, finding that there was sufficient evidence given the testimony that the machine was-sufficiently damaged to allow full access to the money. Hill renewed his motion at the close of all the evidence and • the court again denied it. The jury subsequently convicted Hill of the charge.
Hill , now appeals his conviction, challenging the sufficiency of the evidence. Challenges to the sufficiency of the evidence to support a conviction are considered in the light most favorable to the State, considering only the evidence in favor of the guilty verdict. Haire v. State, 2010 Ark. App. 89. The conviction is af firmed if supported by substantial evidence, that is, evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The fact that evidence is circumstantial does not render it insubstantial. Geer v. State, 75 Ark. App. 147, 55 S.W.3d 312 (2001). Circumstantial evidence may be used to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion; this determination is a question of fact for the fact-finder. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). The finder of fact is also tasked with determining what portions of the witnesses’ testimony are credible and must resolve all questions of conflicting testimony and inconsistent evidence. Id. The jury is permitted to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence; it is only when circumstantial evidence leaves the jury solely |4to speculation and conjecture that it is insufficient as a matter of law. Deviney v. State, 14 Ark.App. 70, 685 S.W.2d 179 (1985).
Hill was. charged with and convicted of breaking or entering. A-person commits the offense of breaking or entering if he enters or breaks into' any vending machine or product dispenser with the purpose of committing a theft or felony. Ark. Code Ann. § 5-39-202(a)(3) (Repl. 2013). A violation occurs when a container of the sort described in the statute is sufficiently broken or altered so that the contents or inner works of the device become accessible to entry of any kind. Stout v. State, 304 Ark. 610, 616-17, 804 S.W.2d 686, 690 (1991). Whether coins or money are actually removed is irrelevant. Id. What is relevant is the intent of the actor. Intent may be inferred; proof of actual theft is not required. See, e.g., Watson v. State, 358 Ark. 212, 188 S.W.3d 921 (2004) (holding that the jury could infer intent to deprive the owners of property where appellant’s claim that he left the whereabouts of the property on the owner’s answering machine was controverted by the fact that the owners reported the property stolen, the property was not recovered for a week, and the property was recovered by the police, not the owners); Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001) (holding that where videotape showed appellant approaching the gun cabinet six times and walking around and behind the counter three times before opening a display case and removing a gun, there was sufficient evidence for the jury to infer that appellant intended to commit theft); King v. State, 256 Ark. 778, 510 S.W.2d 876 (1974) (holding that there was sufficient circumstantial evidencé to convict appellant of burglary even where appellant claimed that an unidentified person had forced him at gunpoint to break into the building and | ¿where no property was missing from the building); Kendrick v. State, 37 Ark.App. 95, 823 S.W.2d 931 (1992) (holding that, in the absence of evidence of other intent or explanation for breaking or entering an occupiable structure at night, the usual purpose is theft, especially where appellant was seen kneeling by' the back door of the victim’s home and prying at the door with a knife' and attempting to flee when approached).
Here, there was evidence that Hill struck the machine with a hammer to the point that there was full access to the money contained therein. He admitted that he struck the machine with the intent to steal the money contained inside. On this evidence, it was reasonable for the jury to infer that Hill sufficiently broke into the machine with the purpose of committing a theft for the purposes of breaking or entering; it is immaterial that he did not actually take any money from the machine. Accordingly, we find sufficient evidence to support the conviction and affirm.
Affirmed.
Glover and Brown, JJ,, agree.
. Hill was also charged and tried with the breaking or entering of two vending machines that were the subject of an earlier incident. The trial court, however, granted a directed verdict on those two counts at the close of the State’s case. | [
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RITAW. GRUBER, Judge
111smael Raquel-Dieguez was convicted by a jury of delivery of methamphetamine weighing more than 10 grams but less than 200 grams, and he was'sentenced to a term of eighteen years’ imprisonment in the Arkansas Department of Correction. The charge against him arose from a controlled buy in Springdale, ■ Arkansas, on August 22, 2012. He now appeals, raising two points. First, he contends that the trial court abused its discretion by denying his motions for a mistrial because he was denied his rights under the Confrontation Clause and because, of prejudicial statements by the State and the court in rebuttal closing argument. Second, he contends that the trial court erred by receiving into evidence a substance that was not authenticated by a proper chain of custody. We affirm. .
Appellant made the first of several motions for a mistrial after this portion of the State’s opening statement:
The methamphetamine was processed by the local DEA office,' packaged for shipment, | .¿and shipped" down’ to the South Central Laboratory, federal laboratory, in Dallas, Texas. The methamphetamine actually got tested twice. It was found to be an ounce of methamphetamine. It was 99 percent pure. It was methamphetamine. '
Appellant based his mistrial motion on the State’s reference to two tests, “one of which is inadmissible as a matter of law ,.. the analyst who performed that test is not present here at trial to testify and be cross-examined on that testing.” The trial court denied the motion ás well' as appellant’s subsequent motions for a mistrial.
The State’s evidence at trial included testimony by Detective Alex Amaya of the Rogers Police Department, who worked as á task-force undercover officer for the Drug Enforcément Administration (DEA); Hilda Lemus-Orellana, the DEA’s confidential informant who purchased the substance purported to be methamphetamine; and Paul Galat, a..-senior forensic chemist at the DEA’s South Central Laboratory in Dallas, Texas. Over appellant’s objections, the State introduced into evidence both Galat’s September 10, 2014 laboratory report on the substance that appellant had sold-in the controlled buy and a sealed bag containing the tested substance. The report, -which was positive for methamphetamine hydrochloride, contained the following statement: “Amended report to reflect re-analysis. Refer to original laboratory report dated 12-26-2012.” The State did not seek to admit the original laboratory report; nor did it call as a witness the chemist who performed the original analysis.
According to the testimony in this case,’ Hilda Lemus-Orellana and Detective Ama-yaladrove together to a Wal-Mart parking lot after Lemus-Orellana arranged to buy methamphetamine from appellant for $1850. Appellant arrived in his car and Lemus-Orellana got in; she paid him, and he sold her a substance purported to.be methamphetamine. She got back in Ama-ya’s vehicle and put a baggie containing the substance on the console. Amaya field tested “residue in the teeth at the top of the ziplock part of the bag,” which was positive for methamphetamine. After the substance was packaged and weighed by DEA agents, it was sent to the DEA’s South Central Laboratory in Dallas, Texas — which is responsible for analyzing and storing all drug evidence that DEA collects. The substance remained there until it was needed for appellant’s trial.
Paul Galat testified that chemists at the South Central Laboratory accept .only envelopes that have been sealed by DEA agents and sent to the laboratory’s vault. The laboratory’s chain-of-custody report for the substance in this case showed that the substance was stored in the vault after it was received at the laboratory, Galat checked it out and turned it back in, and it later was sent to Arkansas for trial. Galat determined in his testing that the gross weight was 60.8 grams. He performed a marquis-color test that indicated the substance could be methamphetamine and a test that confirmed the presence of methamphetamine. After obtaining a net weight of 27.4 grams — the weight without the packaging — Galat ground the methamphetamine into a fine powder in order to perform instrumental. tests, including a “liquid chromatography” test to determine purity. Galat’s report of his test results— methamphetamine hydrochloride with a purity of 99.2 percent — used the same case number that was on the bag of methamphetamine. Galat said that he could tell that the |4evidence had not been tampered with because the bag had his seal and evidence sticker at the bottom, the agent’s intact seal on the top, and the manufacturer’s seals on the sides, and because everything inside it had Galat’s initials and the date of his analysis.
Outside thé presence of the jury, Galat stated in voir dire that another analyst, Dustin Barr, previously had tested the methamphetamine. Galat confirmed from the chain-of-custody document that Barr had checked out the methamphetamine on November 19-20 and on December 21-26, 2012. Barr prepared his laboratory report on December 26, 2012, and it was approved by the acting laboratory director five days later. Galat had not observed the previous testing but knew that Barr had done it because Barr’s initials were on the bag and he had prepared a report. Galat explained that his supervisor asked him to retest the methamphetamine in order to testify as a witness in this case because a medical condition prevented Barr from traveling.
In closing argument, appellant referred to Barr and to the periods of time that he had checked out the methamphetamine in the laboratory:
[The prosecutor is] going to tell you that .none of this matters. He’s going to tell you not to worry about it. Don’t worry about Mr. Barr. Don’t worry about what happened to the evidence back in 2012 twice, two days, two periods of time, one day, five days over the holidays. Don’t worry about that. It doesn’t matter.
The State responded in . rebuttal closing argument, “You heard [defense counsel] mention Dustin Barr. Why isn’t he here? They didn’t call him,” Appellant objected and moved for a mistrial:
Defense Counsel: Objection. The defendant has no burden whatsoever to call witnesses in this case.
1 .The COURT: You have no burden of proof. But you are allowed to subpoe- ■ na witnesses.
PROSECUTOR: I’ll continue. Wé didn’t call Mr. Barr here. There were rea- • sons. Don’t you think if there-were shenanigans that he would be subpoenaed by the defense? Look closer.
Defense Counsel: We renew our motion for a mistrial. '
The CouRT: Denied.
Appellant then moved for a mistrial on the grounds of confrontation. And again, his motion was denied.
I. Whether the Trial Court Abused its Discretion by Denying Appellant’s Motions for a Mistrial
Appellant contends that the trial court abused its discretion by denying his motions for a mistrial based on violation of his Sixth Amendment confrontation rights and on prejudicial remarks by the State and the court during the State’s rebuttal closing argument. Questions of constitutional interpretation, such as whether there has been a Confrontation Clause violation, are subject to de novo review. E.g., Seely v. State, 373 Ark. 141, 145, 282 S.W.3d 778, 782 (2008). The decision to deny a motion for mistrial is not reversed unless the circuit court abused its discretion. Rodriguez v. State, 2014 Ark. App. 660, at 11, 449 S.W.3d 306, 313.
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Much of the argument in the present case focuses on United States Supreme Court decisions involving the Confrontation Clause and the necessity of witnesses when the | (¡prosecution’s case involves forensic reports.
In Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177, (2004) the Court held that “[t]estimonial statements of witnesses absent from trial are admissible only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”’ Two subsequent cases, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 2710, 180 L.Ed.2d 610 (2011), involved the prosecution’s introduction of forensic reports containing “a testimonial certification, made in order to prove a fact at a criminal trial.” Williams v. Illinois, — U.S. -, 132 S.Ct. 2221, 2223, 183 L.Ed.2d 89 (2012). The prosecution in Melendez-Diaz entered into evidence “certificates of analysis” to show that substances had been analyzed and were found to be cocaine; the certificates consisted of sworn affidavits by analysts who did not testify at trial. 557 U.S. at 308, 129 S.Ct. 2527. The Court determined that the affidavits were testimonial, thereby implicating Melendez-Diaz’s right of confrontation. Id. at 310-11, 129 S.Ct. 2527. In Bullcoming, .where the analyst who performed the tests was on unpaid leave for an unrevealed reason, and another analyst from the same lab testified about the tests, the Court held that “[t]he analysts who write reports that the prosecution introduces, must be made, available for confrontation.” Id. at 2715.
In Melendez-Diaz, supra, the Court recognized the constitutionality of notice-and-demand statutes in states such as Arkansas requiring the prosecution to notify the accused of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period, of time to object to the admission of the evidence absent the analyst’s. appearance at trial. Arkansas Code Annotated section 12-12-313 (Supp. 2013), entitled | ^Records as evidence — Analyst’s testimony, reads in relevant part:
(d)(1) All records and reports of an evidence analysis of the laboratory shall be received as .competent evidence as to the facts in any court or other proceeding when duly attested to by the analyst who performed the analysis.
(2) The defendant shall give at least ten (10) days’ notice prior to the proceedings that he or she requests the presence of the analyst of the laboratory who performed the analysis for the purpose of cross-examination.
(3) Nothing in this subsection shall be construed to abrogate the defendant’s right to cross-examine.
Appellant argues that, because he filed a timely notice “demanding the presence of all forensic analysts that tested the substance for the purpose of cross-examination,” he had a Sixth Amendment right to confront the first chemist about his competency with the procedures, processing, and testing methods that he used. We agree with the State that there was no Confrontation Clause violation. The cases on which appellant relies are distinguishable.
In Bullcoming, a driving-while-intoxicated case, the prosecution introduced “a forensic laboratory report containing a testimonial certification — made for the purpose of proving a particular fact — through the in-court testimony of a scientist who did not sign the certification or perform or observe the‘test reported in the certification.” — U.S. -, 131 S.Ct. at 2710. The Court held that such “surrogate testimony” — concerning alcohol concentration in the accused’s blood — did not meet the constitutional requirement of the Confrontation Clause, Id. “The accused’s right is to be confronted with the analyst, who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.” Id.
[«The prosecution in the present case introduced Galat’s 2014 laboratory report into evidence and did not introduce the original laboratory report from Barr’s analysis. Because the State did not seek to introduce Barr’s report, there was no obligation to make him available for cross-examination. Appellant’s confrontation rights were satisfied by the opportunity to cross-examine Galat on the retesting that he performed. See Melendez-Diaz, 557 U.S. at 311, n.1, 129 S.Ct. 2527 (rejecting the dissent’s suggestion, “that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case”). The circumstances surrounding Barr, .whose absence was explained, and his laboratory report did not fall within the. ambit of Melendez-Diaz, Bullcoming, or Arkansas Code Annotated section 12-12-313.
Appellant also argues that the circuit court abused its discretion by refusing to grant a mistrial fallowing allegedly prejudicial statements by the prosecutor during rebuttal closing argument. Remarks in closing that require reversal are rare and must have appealed tp jurors’ passions. Delatorre v. State, 2015 Ark. App. 498. Furthermore, the State is permitted in rebuttal to comment on matters that were discussed or invited by the appellant’s preceding closing argument. Neble v. State, 26 Ark. App. 163, 170, 762 S.W.2d 393, 397 (1988).
Appellant complains that he was prejudiced by the prosecutor’s statements, “Why isn’t [Barr] here? They didn’t call him,” because the jury was left with the incorrect impression that it was appellant’s duty to secure Barr’s presence at trial. He also argues that the trial court’s IsStatement, “You have no burden of proof. But you are allowed to subpoena witnesses,” incorrectly assigned the burden of producing witnesses for cross-examination to the appellant rather than to the State.
Appellant opened the door to the prosecutor’s statements by referring to Barr multiple times in his closing statement, apparently attempting to show flaws in the chain of custody of the substance tested. Appellant noted Barr’s initials on the bag of methamphetamine; he referred to the statement in Galat’s report, , “this is an amended report to reflect re-analysis, refer to original laboratory report, dated 12/26/2012”; and he characterized dates on the chain-of-custody log when Barr checked out the methamphetamine. as “two unexplained periods of time.” Finally,, he. argued that the prosecutor “will say don’t worry about Mr. Barr or what happened to. the evidence in 2012.” As discussed earlier in this opinion, appellant had no constitutional right to cross-examine Barr. The trial court’s statement that'appellant had no burden of proof but was allowed to subpoena witnesses was a correct statement of law. See Marks v. State, 375 Ark. 265, 273, 289 S.W.3d 923, 929 (2008) (stating the fundamental principle of criminal law that the State has the burden of proving, the defendant guilty beyond, a reasonable doubt). A defendant is not entitled to. rely on the State’s subpoena or witness list for his own defense because the accused is not entitled to rely on discovery as a substitute for his own investigation. Tatum v. State, 2011 Ark. App. 80, at 8, 381 S.W.3d 124, 128.
The circuit court is given broad discretion to control counsel in closing arguments, and appellate courts do not interfere with such discretion absent a manifest abuse of it. E.g., Wetherington v. State, 319 Ark. 37, 41, 889 S.W.2d 34, 36 (1994). The State is allowed to |in“fight fire with fire” once the defendant has opened the door to a line of argument, and what might have been impermissible becomes permissible. Lee v. State, 326 Ark. 529, 532, 932 S.W.2d 756, 759 (1996). Here, the prosecutor addressed appellant’s pointed references to B'arr, responding that the State was not hiding anything by not calling him as a witness and that appellant could have subpoenaed him for questioning.
When there is doubt as to whether the trial court abused its discretion, a failure to request an admonition will negate a mistrial motion. Martin v. State, 2013 Ark. App. 110, at 9, 426 S.W.3d 515, 520. Although .appellant moved for a mistrial, he never sought a jury admonition. .We hold that the trial court did not abuse its discretion by denying appellant’s motions for a mistrial.
II. Whether the Trial Court Abused its Discretion by Admitting the Methamphetamine into Evidence
Appellant argues that the-circuit court abused its discretion by admitting the methamphetamine into evidence because the State failed to establish a chain of custody for the time that Barr handled it. We do not reverse a circuit court’s ruling on the admissibility of evidence absent a showing that the court abused its discretion. Jackson v. State, 2010 Ark.App. 359, at 17-18, 374 S.W.3d 857, 868.
Authentication requirements’ are satisfied if the trial court, in its discretion, concludes that the evidence presented is genuine and that, in reasonable probability, it has not been tampered with or altered in any significant, manner. Chatmon v. State, 2015 Ark. 28, 467 S.W.3d 731; Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001); Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). Nor is it necessary that every possibility of tampering be | neliminated. Crisco, 328 Ark. 388, 943 S.W.2d 582. Minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. Hawkins v. State, 81 Ark. App. 479, 481, 105 S.W.3d 397, 398 (2003). Proof of the chain of custody for interchangeable items like blood or drugs needs to be more conclusive than for other evidence. Id.
Appellant argues that any analyst who handles the actual substance is an indispensable witness, and that the State could not adequately establish the chain of custody of the methamphetamine without Barr’s testimony. To the contrary, we have stated that it is not necessary that “every moment from the time the evidence comes into the possession of a law-enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come in contact with the evidence.” Jackson, 2010 Ark. App. 359, at 17, 374 S.W.3d at 868.
Appellant alleges that the State fáiled to establish a proper chain of custody due to inconsistencies in Barr’s handling of the methamphetamine. Appellant notes a lack of testimony about the time when Barr possessed the methamphetamine and aboüt Barr’s procedures when analyzing it. Appellant alleges that" Barr altered the appearance of the methamphetamine during his analysis, that the weight of the methamphetamine varied between what was recorded by the DEA officers and what the two analysts recorded, and that there were inconsistencies between results of color tests in the field and in the laboratory.
In his testimony, Galat accounted for minor discrepancies in the weight and appearance of the methamphetamine between the time of its arrival at the laboratory and its introduction 11⅞⅛⅛0 evidence at trial. Addressing the differences in weight — Barr reported a gross weight of 59.3 grams and a net weight of 27.9 grams, and Galat reported a gross weight of 60,8 grams and a net weight of 27.4 grams— Galat explained 'that Barr recorded a reserve weight (“what’s left over”) of 27.5 grams, meaning -that he used .4 grams during testing. Thus, there was only a .1 gram difference in the reserve weight recorded by Barr and the net weight recorded by Galat. Galat also explained that the 1.5 gram difference between the gross weights he and Barr recorded occurred because, after Barr initially weighed the substance in its Ziploc bag and recorded the gross weight, he emptied the first bag and put it into a new Ziploc bag. Galat explained that the new bag, along with stickers on it, accounted for the gross-weight differences.
Galat also explained why Barr may have checked the methamphetamine out of the vault twice:
Pit’s not uncommon for us to check out a piece of evidence and not analyze it and turn it back in. Because maybe you check out a piece of evidence, and then your boss wants you to work on this rush that’s going to court the next week. So then you analyze this one and you don’t get to that one, and you turn it back into the vault and you recheck it out.... So it’s not a big mystery or anything.
He explained the many safeguards and layers of security in place at the laboratory to prevent misappropriation or substitution of drugs. He explained that, before he checked out the sealed bag of methamphetamine, he knew that Barr had previously tested the same substance: ■ Barr created a report, his initials were on the sealed bag, and the chain-of-custody statement indicated the exact dates in November and December 2012 that Barr possessed the evidence. •
Galat explained that Barr’s 2012 report did not indicate specific tests he performed 113because, in 2012, the laboratory had not yet switched to a newer computer system in which all analysts listed in their reports every test that was performed. Galat addressed appellant’s allegation that Barr changed the appearance of the methamphetamine, explaining that Barr listed'in his laboratory notes that he ground and sifted the methamphetamine during his analysis — just as Galat did — which Galat described as standard practice and not new.
Finally, appellant argues that different results between the color tests performed in the field and in the laboratory indicate a break in the chain of custody. He points to Crisco v. State, supra, where the substance was described differently by the undercover officer and the chemist, and the State was required to do more to establish the authenticity of the drug tested than merely trace the route óf the envelope containing the substance. -App'el-lant has failed to preserve this argument for appeal because it was not part of his chain-of-custody argument below as to the admission of the methamphetamine. Parties cannot change the grounds for an objection on appeal. E.g., Tavron v. State, 372 Ark. 229, 231, 273 S.W.3d 501, 502 (2008).
The circuit court found that the State established by a reasonable probability that the evidence had not been tampered with. We find no abuse by the circuit court in admitting the methamphetamine into evidence over appellant’s chain-of-custody arguments.
Affirmed.
Gladwin, C.J., and Harrison, J., agree.
. Appellant’s objections included allegations of confrontation violations and an insufficient chain of custody, which we discuss later in this opinion.'
. We note that appellant declined the trial court's offer to redact the portion of Galat’s report that referred to Barr’s earlier analysis. | [
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PHILLIP T. WHITEAKER, Judge.
| jAppellant, Hurt-Hoover Investments, LLC, appeals a Cleburne County jury verdict in favor of the appellees, Lester Ful-mer, Rob Bentley, Robert Best, and Carl Chilson. Hurt-Hoover raises two arguments on appeal: 1) the circuit court erred in denying Hurt-Hoover’s motion to dismiss for improper venue; and 2) the circuit court erred in refusing to allow the drafting attorney to testify about an ambiguity in the parties’ contract. We affirm.
The appellees entered into a “Purchase and Sale Agreement” with Hurt-Hoover by which Hurt-Hoover agreed to purchase the appellees’ ownership interests in H20 Lifts and LBamps, LLC. The contract called for Hurt-Hoover to pay $955,000 for H20, with an initial installment of $400,000 paid in cash. Hurt-Hoover agreed to enter into separate promissory notes with each of the four appellees for the balance. Although Hurt-Hoover paid the initial $400,000, it failed to pay the installments due under the promissory notes. The appellees then sued Hurt-Hoover in the Cleburne County Circuit Court for breach of contract.
Hurt-Hoover answered and moved to dismiss for improper venue, alleging that, under Arkansas Code Annotated section 16-60-111 (Repl.2005), venue was proper in Craighead County, the county of its principal place of business. The circuit court denied Hurt-Hoover’s motion, finding that Arkansas Code Annotated section 16-55-218 (Repl.2005) repealed section 16-60-111 by implication and that venue was therefore proper in Cleburne County, where the individual appellees resided.
The appellees subsequently moved for summary judgment. The circuit court denied the motion, finding that there were genuine issues of material fact concerning the meaning of Paragraph 6.01, an indemnification clause in the “Purchase and Sale Agreement.” Following the court’s denial of the motion for summary judgment, the law firm for Hurt-Hoover filed a motion to withdraw as counsel so that the attorney who had drafted the agreement, Robert Jones, could offer testimony about the meaning of that particular contractual provision. Three days later, Hurt-Hoover also filed a motion for continuance, asking that the jury trial be scheduled for a later date to allow sufficient time for Hurt-Hoover to retain new counsel and for new counsel to have adequate time to prepare for trial. |sThe court denied both the motion to withdraw and the motion for continuance. The matter proceeded to jury trial, and a Cleburne County jury found in favor of the appellees.
On appeal to this court, Hurt-Hoover first contends that the circuit court erred in denying its motion to dismiss based on improper venue. Whether venue is appropriate in a particular county is a matter of law. Lawrence v. Sullivan, 90 Ark.App. 206, 205 S.W.3d 168 (2005); Two Bros. Farm, Inc. v. Riceland Foods, Inc., 57 Ark.App. 25, 940 S.W.2d 889 (1997). The question in this case presents a matter of statutory construction, which we review de novo. Dotson v. City of Lowell, 375 Ark. 89, 289 S.W.3d 55 (2008); McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007). The General Assembly is vested with the power to establish venue under the Arkansas Constitution. Ark. Const, amend. 80, § 10. It is the appellate court’s fundamental duty, as well as a basic rule of statutory construction, to give effect to the legislative purpose set by the venue statutes. Dotson, supra (citing Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995)).
Hurt-Hoover asserts that Arkansas Code Annotated section 16-60-lll(a)(l) governs venue in this proceeding and that the circuit court thus erred in finding that venue was proper in Cleburne County pursuant to Arkansas Code Annotated section 16-55-213(a). Hurt-Hoover maintains, as it did below, that section 16-55-213(a) did not repeal section 16 — 60—111(a)(1) by implication.
Section 16 — 60—111 (a)(1) provides that “[a]n action on a debt, account, or note, or for goods or services may be brought in the county where the defendant resided at the time the cause of action arose.” Ark. Code Ann. § 16-60-lll(a)(l) (emphasis added). Section 16-55-|4213, on the other hand, was enacted as part of the Civil Justice Reform Act of 2003. That venue statute provides, in pertinent part, as follows:
(a) All civil actions other than those mentioned in §§ 16-60-101-16-60-103, 16-60-107, 16-60-114, and 16-60-115, and subsection (e) of this section must be brought in any of the following counties:
(1) The county in which a substantial part of the events or omissions giving rise to the claim occurred;
(2)(A) The county in which an individual defendant resided.
(B) If the defendant is an entity other than an individual, the county where the entity had its principal office in this state at the time of the accrual of the cause of action; or
(8)(A) The county in which the plaintiff resided.
(B) If the plaintiff is an entity other than an individual, the county where the plaintiff had its principal office in this state at the time of the accrual of the cause of action.
Ark.Code Ann. § 16 — 55—213(a) (emphasis added). The supreme court has held that, in enacting this statute, “[t]he general assembly has thus given litigants the choice of venue.” Farm Bureau Mut. Ins. Co. of Ark, Inc. v. Gadbury-Swift, 2010 Ark. 6, 362 S.W.3d 291.
Hurt-Hoover argues on appeal that section 16-55-213(a) did not repeal section 16 — 60—111 (a)(1) by implication. Repeal by implication, as the supreme court has frequently stated, is not favored, and the appellate courts will make every effort to read seemingly conflicting statutes in a harmonious manner if possible. McMickle, 369 Ark. at 325, 254 S.W.3d at 737; Great Lakes Chem. Corp. v. Bruner, 368 Ark. 74, 243 S.W.3d 285 (2006). Repeal by implication is recognized in two situations, however, which will be discussed in more detail herein.
IsFirst, repeal by implication can occur when the provisions of two statutes are in irreconcilable conflict with each other. See Uilkie v. State, 309 Ark. 48, 827 S.W.2d 131 (1992). In Dotson, supra, the supreme court found irreconcilable conflict between section 16-55-213 and section 16-60-116(a). The court held that section 16-60-116(a), the older of the two statutes, provided for venue in a county where a defendant lives at the time the suit is filed. The court further found that section 16-55-213, the newer of the two statutes, fixes venue at the time of the accrual of the cause of action in one of three counties: 1) the county in which a substantial part of the events or omissions giving rise to the claim occurred; 2) the county in which an individual defendant resided; or 3) the county in which the plaintiff resided. The court then stated:
In sum, we are persuaded of this conflict by the fact that the new general default venue statute expressly fixes venue for “[a]ll civil actions,” with certain noted statutory exceptions. It also fixes venue at the time the events giving rise to the cause of action occurred, while the existing general default venue provision fixes venue at the time the cause of action is filed. Both points are evidence of the General Assembly’s intent to adopt a new general venue scheme as a substitute for section 16-60-116(a).
Dotson, 375 Ark. at 94-95, 289 S.W.3d at 59-60. In the present case, it is the newer statute that allows venue to exist in counties where the older statute does not: the county where the plaintiff resided or the county where the events giving rise to the claim occurred. We therefore conclude that this creates an irreconcilable conflict.
Second, repeal by implication can also occur when the legislature takes up the whole subject anew and covers the entire ground of the subject matter of a former statute and evidently intends the latter statute as a substitute. See Uilkie, supra. “Repeal by implication 16⅛ not favored, but Act 649 [the Civil Justice Reform Act] appears to have had that effect on a number of core venue statutes in Title 16, Chapter 60 of the Arkansas Code.” Newbern & Watkins, 2 Ark. Civil Practice & Procedure, § 9:1 (5th ed.). In a footnote accompanying this quote, Newbern and Watkins list section 16-60-111 as among the “apparent victims” of section 16-55-213. Id. at n. 10. We agree. Here, as in Dotson, we determine that section 16-55-213 took up the entire subject matter of venue anew and was intended as a substitute for the former statute. Accordingly, we affirm the circuit court’s decision on this issue.
In its second point on appeal, Hurt-Hoover contends that the circuit court erred in refusing to allow the attorney who drafted the contract between Hurt-Hoover and the appellees to testify about the meaning of Paragraph 6.01, an indemnification provision in the contract. The court found that the language of Paragraph 6.01 created an issue of fact for the jury as to the parties’ agreement on indemnification. Based on this ruling, Hurt-Hoover took the position that Paragraph 6.01 was an ambiguous contract provision. Hurt-Hoover’s attorney subsequently filed a motion to withdraw as counsel so that he could offer testimony about the meaning of the ambiguous contractual provision. Hurt-Hoover also filed a motion for continuance, seeking additional time to find new trial counsel in the event the court granted the motion to withdraw. The circuit court denied the motion to withdraw and |7motion for continuance, stating that the parol-evidence rule would bar the testimony of Hurt-Hoover’s attorney.
Hurt-Hoover filed a motion to reconsider, which the circuit court denied. The court noted that, while the parol-evidence rule would not prohibit the introduction of extrinsic evidence where it would aid the court in interpreting the meaning of a contract — such as when the contract contains terms of art — there was no language in the contract at issue that was a term- of art or that would be so confusing that a jury could not understand it.
Hurt-Hoover argues on appeal that the circuit court erred both in finding that the parol-evidence rule barred its attorney’s testimony and in denying its motion for continuance. Both matters are reviewed for an abuse of discretion. See Armstrong Remodeling & Constr., LLC v. Cardenas, 2012 Ark. App. 387, 417 S.W.3d 748 (we will not reverse a circuit court’s ruling allowing or disallowing evidence on the basis of the parol-evidence rule absent an abuse of discretion); SMG 1054 Inc. v. Thompson, 2014 Ark. App. 149, 2014 WL 792035 (we will not reverse the denial of a motion for continuance absent an abuse of discretion amounting to a denial of justice).
The parol-evidence rule, which is a substantive rule of law rather than a rule of evidence, prohibits introduction of extrinsic evidence, parol or otherwise, which is offered to vary the terms of a written agreement. First Nat’l Bank of Crossett v. Griffin, 310 Ark. 164, 168, 832 S.W.2d 816, 818 (1992). Its premise is that the written agreement itself is the best evidence of the intention of the parties. Id., 832 S.W.2d at 818-19. “It is a general proposition of the common law that in the absence of fraud, accident or mistake, a written | ^contract merges, and thereby extinguishes, all prior and contemporaneous negotiations, understandings and verbal agreements on the same subject.” Id., 832 S.W.2d at 819 (quoting Farmers Coop. Ass’n v. Garrison, 248 Ark. 948, 952, 454 S.W.2d 644, 646 (1970)).
The parol-evidence rule does not, however, prohibit the introduction of extrinsic evidence where it would aid the court in interpreting the meaning of particular language of a contract, such as when the contract contains terms of art or words which have acquired their meaning through a course of dealing or custom or usage. Id. at 168, 832 S.W.2d at 819 (citing Les-Bil, Inc. v. Gen. Waterworks Corp., 256 Ark. 905, 511 S.W.2d 166 (1974)). Nor does the parol-evidence rule prohibit the court’s acquainting itself with the circumstances surrounding the making of the contract. Id. at 169, 832 S.W.2d at 819 (citing Stokes v. Roberts, 289 Ark. 319, 711 S.W.2d 757 (1986); Schnitt v. McKellar, 244 Ark. 377, 427 S.W.2d 202 (1968)).
The test for admissibility of parol evidence is whether the evidence offered tends to alter, vary, or contradict the written agreement or whether it tends to prove a part of the agreement about which it is silent. In re F & M Bldg. P’ship v. Farmers & Merchants Bank, 316 Ark. 60, 871 S.W.2d 338 (1994). Parol evidence is inadmissible if it is offered merely to explain what one party to a written agreement believed a term of the agreement to mean, as opposed to parol evidence offered to show what both parties to an agreement believed one of its terms to mean. Martin v. Martin, 6 Ark.App. 18, 637 S.W.2d 612 (1982); see also Student Loan Guar. Found, of Ark., Inc. v. Barnes, Quinn, Flake & Anderson, 34 Ark.App. 139, 148, 806 S.W.2d 628, 633 (1991) (“[S]uch testimony must relate to an understanding that was IflCommon to both parties; it is not permissible to show the uncommunicated subjective interpretation that one party or the other placed upon the language of the agreement.”).
The circuit court did not abuse its discretion in disallowing the testimony from Hurt-Hoover’s attorney about what the contractual provision meant. Hurt-Hoover proffered the testimony of attorney Robert Jones, who said he had drafted the agreement at the request of Mike Hoover. Hoover asked Jones to include the indemnity provision in the contract in order to protect Hurt-Hoover, as the buyer of the company, against certain liabilities and expenses and to allow Hurt-Hoover to offset any damages against the payments owed under the promissory notes. Jones testified that it was his recollection that the appellees were not represented by counsel, and he did not recall that he had advised the appellees that the purpose of the indemnification provision was for the protection of Hurt-Hoover. Because the proffered parol evidence was intended to show only what one party to the contract— Hurt-Hoover — believed the provision meant, the circuit court did not abuse its discretion in refusing to admit the testimony.
Next, Hurt-Hoover argues that the circuit court should have granted its motion for continuance and motion to withdraw. We do not reach this issue, because the continuance was intended only for the purpose of finding new counsel so Jones could testify. As we have held that it was not error for the circuit court to refuse to admit Jones’s testimony, these arguments are moot.
Affirmed.
GLADWIN, C.J., and WALMSLEY, J., agree.
. Following entry of the judgment, Hurt-Hoover filed a timely notice of appeal. This court previously ordered rebriefing because Hurt-Hoover failed to include the jury-verdict forms in its addendum and had improperly included transcripts of several depositions in its addendum instead of abstracts as required by Ark. Sup.Ct. R. 4-2(a)(5)(A). Hurt-Hoover Investments, LLC v. Fulmer, 2013 Ark. App. 621, 2013 WL 5872316. Hurt-Hoover has corrected these deficiencies.
. In this same footnote, Watkins and New-bern suggest that "one could argue that there is life” in section 16-60-111, because the General Assembly amended the statute in 2007. Id. Hurt-Hoover makes this same contention; however, this argument was not raised before the circuit court, and we will not consider arguments raised for the first time on appeal. Bank of the Ozarks, Inc. v. Walker, 2013 Ark. App. 517, 2013 WL 5273028. Moreover, Hurt-Hoover cites no convincing authority in support of its argument; we therefore decline to address it for that reason as well. Stilley v. Ft. Smith Sch. Disk, 367 Ark. 193, 238 S.W.3d 902 (2006). | [
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DONALD L. CORBIN, Justice.
| Appellant Valerie Bailey brings the instant appeal from an order of the Pulaski County Circuit Court, Special Judge John Cole presiding, granting a declaratory judgment and issuing a writ of mandamus in favor of Appellee Kristen Hulse on the basis that Bailey was not a qualified or eligible candidate for the office of circuit judge pursuant to section 16 of amendment 80 to the Arkansas Constitution. On appeal, Bailey argues that (1) a writ of mandamus was inapplicable and Hulse’s petition should have been dismissed; (2) no rule provides that an administrative suspension of an attorney’s right to practice law constitutes ^revocation or termination of a license for purposes of amendment 80; (3) payment of her delinquent license fees and CLE fees had the effect of reinstating her license; (4) the circuit court erred in its interpretation of amendment 80; and (5) the process of automatic suspension pursuant to Rule VII(C) of the Rules Governing Admission to the Bar violates Bailey’s rights to due process and, thus, the circuit court should have granted her motion for reconsideration.
In her brief to this court, Appellee Hulse counters that the circuit court’s order was proper and should be affirmed because (1) Bailey was not qualified to be a candidate for circuit judge; (2) the arguments presented by Bailey have been waived, are untimely, and are now moot because the ballots for the May 20, 2014 election have already been printed, mailed to absentee voters, and early voting has commenced; (3) Bailey failed to present and request a ruling on any constitutional arguments and, as such, those arguments are not properly before this court.
Appellees, the Perry County Election Commission and the Pulaski County Election Commission, as well as Appellee Secretary of State Mark Martin, take no position on Bailey’s qualifications to assume the office of circuit judge but respond that Bailey’s appeal is untimely because there is no relief available to Bailey, whose name was removed from the ballot.
This court has jurisdiction of the instant appeal pursuant to Arkansas Supreme Court Rule l-2(a)(4) (2013), as it involves issues pertaining to elections and election procedures. We dismiss Bailey’s appeal.
On March 3, 2014, Bailey filed as a candidate for the position of circuit judge, District 06, Division 06, Subdistrict 6.2, which covers parts of Pulaski and Perry Counties. The other |scandidate for this position is the current holder of the office, Circuit Judge Tim Fox. The person elected to this position will assume office on or about January 1, 2015.
Hulse, a registered voter in Pulaski County, filed a petition for writ of mandamus and a declaratory judgment on March 10, 2014. Therein, she alleged, inter alia, that Bailey was not qualified to hold the office of circuit judge because her license to practice law had been suspended “for the majority of the period of time between November 2002 and December 1, 2011.” Thus, according to Hulse, during the periods of time that Bailey’s license was suspended, she was not a licensed attorney; rather, she was a former attorney pursuant to section 22(A) of the Procedures of the Arkansas Supreme Court Regulating the Professional Conduct of Attorneys at Law. Hulse requested a declaratory judg ment that Bailey was not qualified and was ineligible to be a candidate for circuit court judge. She further requested that the circuit court issue a writ of mandamus to Appellees Martin and the Commissioners of the Pulaski County and Perry County Election Commissions ordering that they not include Bailey on any ballot as a candidate for the position of circuit judge or, alternatively, that if she appears on the ballot, that no votes cast for her be counted.
Bailey filed an answer, admitting that her license had been administratively suspended for a period of time because of CLE noncompliance and because of failure to timely pay her annual license fee. Bailey denied that her administrative suspensions rendered her not qualified for the office of circuit judge. She argued that at all relevant times she remained a licensed attorney, and the suspensions were merely a limitation on her ability to practice law. |4In other words, Bailey asserted that the administrative suspension did not result in the loss of her license for purposes of section 16(B) of amendment 80.
The circuit court held a hearing on March 19, 2014. Denise Parks, office manager for the Arkansas Supreme Court Clerk’s office, testified that she has been the keeper of the records related to licensed attorneys for twenty-eight or twenty-nine years. Parks testified that the annual license fee is due every year between January 1 and March 1. When asked what happens if an attorney fails to pay his or her annual fee by March 1, Parks stated that the attorney is “suspended for nonpayment of dues.” Parks further explained that after March 1, an attorney may pay his or her annual fee, plus a $100 penalty, if the delinquency is for less than three years. Parks further opined that when a lawyer is suspended for such nonpayment he or she is not to practice law. According to Parks, an attorney who is suspended for nonpayment may not practice law or take action in the Supreme Court Clerk’s office.
With regard to Bailey’s payment history, Parks testified that the Clerk’s office showed that Bailey had failed to pay her dues and was suspended on March 2, 2002, through November 14, 2002, when she paid her fee and penalty. She was again suspended on March 2, 2004, and did not pay her annual fee or penalty until October 27, 2011, when she paid $2,240 for her annual fees for those years, as well as the applicable penalties.
Hulse called no other witnesses. Bailey then moved for a directed verdict, arguing that Hulse failed to prove that Bailey was an unqualified and ineligible candidate for circuit judge. She further stated that the sole question was whether she had lost her license for CLE noncompliance and failure to pay bar dues and that the evidence demonstrated that “[s]he was | .^reinstated. She always had a law license.” Bailey thus argued that a writ of mandamus was not warranted, as there was no clearly established, undisputed legal right to demonstrate that mandamus should issue.
The circuit court denied Bailey’s motion for a directed verdict. Bailey then called Nancie Givens, director of the Office of Professional Programs, to testify. Givens testified that a CLE suspension is a suspension of a person’s right to practice law. She further stated that it is an administrative suspension, as opposed to a disciplinary suspension. On cross-examination, Givens stated that when a CLE suspension is imposed on an attorney, that attorney may not practice law because his or her license is suspended from doing so. According to Givens, a suspension for nonpayment of the license fee has the same effect. Givens further testified that a suspension by the CLE Board and a suspen sion for nonpayment of the annual license fee both have the same effect as a suspension from the Office of Professional Conduct.
At the conclusion of the hearing, the circuit court took the matter under advisement. Shortly thereafter, the circuit court returned to the bench and announced its ruling, stating in relevant part, as follows:
This is a simple, yet fairly complicated case, in thinking through all of the issues that are involved. It is going to have some policy effects regarding the licensure of attorneys, qualifications to run for office in the State of Arkansas. But I know, and I think everyone in this room, especially those of you who are licensed to practice law know, that the quintessential, and I suppose the only, franchise that is granted by a license to practice law is the right to practice law. And a suspension is a suspension is a suspension; it doesn’t matter whether it’s administrative or whether it’s disciplinary. Once a person’s right to practice law is suspended, that is tantamount to suspending their license. And for the purposes of the 80 Amendment to the Constitution which | (¡required lawyers to be licensed in the State of Arkansas for six consecutive years prior to taking office was adopted, I believe it meant just what it said. And I think that it is essential for a license under that constitutional provision to carry with it the right to practice law. I don’t think you have a license if you don’t have the right to practice law.
The circuit court then announced that it was granting the writ of mandamus and declaring that Bailey was not eligible to seek the office of circuit judge. Upon this announcement, Bailey requested a stay of the writ, pending appeal. The circuit court orally denied the request for the stay. A written order reflecting the rulings of the circuit court was entered that same day, March 19, 2014.
On April 2, 2014, Bailey filed a motion for new trial and reconsideration. She argued therein that the circuit court’s decision was contrary to the law and she therefore requested that the court grant her a new trial and vacate its prior orders granting the writ of mandamus and disqualifying her from the ballot. She then filed an amended motion for new trial or reconsideration on April 15, 2014, alleging that the circuit court’s decision in her case was contrary to a decision by another circuit court that automatic administrative suspensions violate an attorney’s due-process rights because the attorney is not afforded notice or a hearing. Attached to her amended motion was an order entered by the circuit court in Williams v. Byrd, No. 60CV-14-1282, (Pulaski Cnty., 5th Div. Apr. 11, 2014). Thereafter, the circuit court in a letter opinion, filed of record on April 18, 2014, denied Bailey’s motion and amended motion for reconsideration, stating as follows:
I have reviewed the motion and response. I am aware of the two subsequent circuit court decisions taking an opposite view on the late payment issue. Neither considered the CLE question. It would take too much high jingo to bend the constitution or to |7give a second definition to “suspend.” While the cause of a suspension may not reflect on the knowledge, character or competence of the attorney, the effect of a suspension is what counts when related to the constitutional qualification requirement at issue. This is a rule promulgated and adopted by the Supreme Court. Due process is presumptive. Mandamus is proper.
An order reflecting this ruling was entered on April 22, 2014. Thereafter, on that same day, Bailey filed an amended notice of expedited appeal pursuant to Arkansas Supreme Court Rule 6-1.
We turn now to the appeal before us. As a threshold matter, however, we must first determine whether Bailey has properly availed herself of the rules that permit expedited consideration in election cases. Each Appellee argues that her appeal is moot because she failed to pursue relief in this court in a timely manner, and now there is no relief available to her. It is undisputed that the ballots for the May 20 election have already been printed. In fact, prior to the circuit court hearing, all parties stipulated and agreed that March 21, 2014, was the “drop dead” deadline regarding the printing of ballots. Bailey, in a motion to this court, avers that she is not now bound by that stipulation. Whether she is bound by it is irrelevant. The real question is whether Bailey’s appeal is now moot because this court can provide no relief, even were we to agree with her contention that she has always remained a licensed attorney.
It is well settled that the right to contest an election is purely statutory. Oliver v. Phillips, 375 Ark. 287, 290 S.W.3d 11 (2008); Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d 818 (2003). Arkansas Code Annotated section 7-5-207(b) (Supp. 2013) provides the means for a voter to raise a pre-election attack on a candidate’s eligibility to stand for election and | Rfor the removal of an ineligible candidate’s name from the ballot. See Fite v. Grulkey, 2011 Ark. 188, 2011 WL 1587999; Clement v. Daniels, 366 Ark. 352, 235 S.W.3d 521 (2006). Section 7-5-207(b) provides in relevant part:
No person’s name shall be placed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible at the time of filing ... as a candidate for the office to hold the public office for which he or she is a candidate.
This court has consistently recognized that the proper procedure to enforce section 7-5 — 207(b) is an action for writ of mandamus coupled with a request for declaratory relief, which provides prompt consideration of a candidate’s eligibility and, if the candidate is determined to be ineligible, the removal of the candidate’s name before the election. See Tumey v. Daniels, 359 Ark. 256, 196 S.W.3d 479 (2004); Helton v. Jacobs, 346 Ark. 344, 57 S.W.3d 180 (2001).
This court has further recognized that a voter may exercise the right to raise a preelection challenge at any time prior to the general election. Fite, 2011 Ark. 188; Tumey, 359 Ark. 256,196 S.W.3d 479. We have observed, however, that the issue of a candidate’s eligibility under section 7-5-207(b) becomes moot once the election takes place. See, e.g., Oliver, 375 Ark. 287, 290 S.W.3d 11; Clement, 366 Ark. 352, 235 S.W.3d 521; McCuen v. McGee, 315 Ark. 561, 868 S.W.2d 503 (1994). Similarly, we have held that a party may not utilize the process established in section 7-5-207(b) in a post-election challenge. See Zolliecoffer v. Post, 371 Ark. 263, 265 S.W.3d 114 (2007); Pederson, 354 Ark. 716, 128 S.W.3d 818.
19Here, there is no question that when Hulse filed her petition for declaratory relief and writ of mandamus, she was initiating a proper pre-election challenge to Bailey’s qualification to stand for the office of circuit judge. Likewise, no one asserts a lack of compliance with the requirement of Arkansas Rule of Civil Procedure 78 that the circuit court schedule a hearing on the petition within two to seven days. The question of timeliness and, therefore, mootness arises because of Bailey’s delay in pursuing the instant appeal.
The circuit court entered its order granting Hulse’s requested relief on March 19, 2014. All parties were aware that the deadline for printing ballots was March 21, 2014. Once the circuit court granted Hulse’s requested relief and refused to stay its order, Bailey could have availed herself of the provisions of Rule 6-1 and proceeded with an expedited appeal in this court. Likewise, she could have requested this court to enter a stay of the circuit court’s order thus allowing her name to appear on the ballot. As it stands now, however, Bailey does not appear as a candidate for circuit judge on the ballots, which have been printed, mailed to absentee voters, and presented to early voters. In concluding her argument that the circuit court erred and its decision should be reversed, Bailey requests that “Appellee Commissioners be directed to take whatever steps are necessary to restore her name to a ballot for the aforementioned position and for any and all other relief’ to which she may be entitled. Bailey makes no suggestion whatsoever as to-what steps we could order the Commissioners to take to restore her name to the ballot.
Consequently, we find ourselves in a position similar to the one encountered by this court in Ball v. Phillips County Election Commission, 364 Ark. 574, 222 S.W.3d 205 (2006), in |inwhich the court held that a petition challenging the eligibility of a candidate, filed eight days before the election was untimely and therefore moot. In so holding, this court stated as follows:
Simply stated, Ball’s petition was untimely. The candidates’ names were certified on or before August 6, 2004. Ball offers no compelling reason for waiting thirty-eight days to file her petition for writ of mandamus and declaratory judgment to remove Jones’ name from the ballot. If Ball had filed her suit within this thirty-eight day period (or, including the eight days following the September 13, 2004, the forty-six day period), there would have been ample time in which to resolve all relevant issues raised by Ball prior to the September 21, 2004 election.
Id. at 577-78, 222 S.W.3d at 207. The court in Ball concluded that it would not review moot issues because to do so would result in the court rendering an advisory opinion. Id.
The same holds true in the instant case. Bailey could have pursued her “expedited appeal” in a truly expeditious manner. She states no reason for having filed a motion for reconsideration in the circuit court, as opposed to proceeding directly in this court to seek an expedited appeal and stay of the circuit court’s order. She offers not one suggestion for what relief this court can grant that would have any practical effect in light of the fact that the ballots have been printed, and it is axiomatic that this court will not make a party’s argument for her. E.g., Bancorp-South Bank v. Shields, 2011 Ark. 503, 385 S.W.3d 805. Finally, it is true that this court has recognized exceptions to the mootness doctrine in cases where the public interest is involved and where the issues presented are ones likely to recur. See Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998) (addressing issue of whether a violation of the two-to-seven day provision in Rule 78(d) for conducting hearings deprives a circuit court of jurisdiction); Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000) (addressing issues of | n necessary and indispensable parties and venue arising from a primary-election-eligibility contest); Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000) (addressing issue of standing arising from an eligibility contest in a primary election). In the instant case, however, there is simply no compelling public interest that requires us to address the issue of whether the circuit court correctly ruled that Bailey was un qualified and ineligible to run as a candidate for circuit judge, because any such decision by us would amount to an advisory opinion. To the extent that the substantive issue of a candidate’s eligibility to run for circuit judge pursuant to amendment 80, section 16(b) is likely to recur, such issue is properly addressed in the companion cases decided this same day. See Chandler v. Martin, 2014 Ark. 219, 433 S.W.3d 884; Kelly v. Martin, 2014 Ark. 217, 433 S.W.3d 896; and Williams v. Martin, 2014 Ark. 210, 2014 WL 2695501.
Appeal dismissed.
Special Justices RAYMOND R. ABRAMSON and TODD TURNER join in this opinion.
Special Justice WOODY BASSETT concurs in this opinion.
DANIELSON, BAKER, and GOODSON, JJ., not participating. | [
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PHILLIP T. WHITEAKER, Judge
| Appellants Charisma and Joshua Holder appeal a Sebastian County Circuit Court order terminating their parental rights to their seven-year-old daughter, M.H. They contend that the trial court erred in ordering termination without first reviewing testimonial evidence introduced at a previous hearing on the petition to terminate. Because appellants have failed to present sufficient evidence of their claim, we affirm.
A brief procedural history of the case is necessary to the issue on appeal. In March 2014, M.H. was removed from the care and custody of Charisma and Joshua Holder after Charisma attempted suicide and Joshua was found to be under the influence of several illegal substances. The Arkansas Department of Human Services (the Department) filed a dependency-neglect petition within the appropriate division of the circuit court that handled | gjuvenile matters. The circuit court adjudicated M.H. dependent-neglected in May 2014, and M.H. remained in the care of the Department throughout the pendency of the case.
While the case was pending, the judge initially assigned to the case retired, and the case was reassigned. The newly assigned judge presided over a permanency-planning hearing in March 2015. At that time, the court found that the parents had not complied with the case plan and that the goal of the case, should be changed to concurrent goals of reunification and ter? mination/adoption.
The Department filed a petition to terminate the parental rights of both Joshua and Charisma Holder in April 2015; On June 5, 2015, the court commenced a hearing on the petition (1st hearing). The hearing could not be completed that day because, during the course of the hearing, the trial judge discovered a conflict that warranted her recusal. A recusal order was entered, and Judge Spears was assigned to the case.
Judge Spears attempted to reschedule the termination hearing. However, due to several scheduling conflicts, the termination hearing was again continued multiple times and, as a result, another review hearing became necessary. In November 2015, Judge Spears held a review hearing. During this hearing, he received into the record a transcript from the 1st hearing. He also found that the .parents had not complied with the case plan, and he set the continued termination hearing for trial in January.
The termination hearing resumed on January 14, 2016 (2nd hearing).' At the beginning of the 2nd hearing, the Department introduced into evidence a transcript of the 1st hearing and summarized the testimony for the court. After taking additional evidence, Judge hSpears indicated from the bench that he was ordering that the Holders’ parental rights be terminated. An order to that effect was entered on February 4, 2016.
' The appellants challenge the termination order, arguing only one point for reversal: that the trial court failed to consider all the evidence—specifically, the evidence from the 1st hearing—before rendering its decision. They argue that the transcript from the 1st hearing was introduced into the record at the beginning of the 2nd hearing and that because the court ruled from the bench, it obviously did so without considering the transcript. In making this argument, the appellants analogize their situation to “sleeping juror” cases in which the fact-finder has failed to hear or consider all the evidence presented.
However, the appellants fail to provide any evidence, other than sheer speculation, that the trial court did, in fact, neglect to consider the evidence presented at the 1st hearing in making its decision. The transcript of the 1st termination hearing was previously introduced at the November 2015 review hearing presided over by Judge Spears and was discussed by him in the order entered thereafter. Thus, Judge Spears presumably reviewed the transcript at that time. The transcript was reintroduced at the 2nd hearing. While the trial court did render its decision immediately after the conclusion of the hearing and, arguably, perhaps before reviewing the evidence from the previous hearing, the final order was not entered until three weeks later, giving the trial court ample time to review all the evidence. Appellants have introduced no evidence that the court did not do so. Thus, their entire argument is based on speculation and conjecture.
| ¿Moreover, while appellants couch their argument as one of sufficiency, it really is not. They do not argue that there was insufficient evidence to support the court’s ultimate findings;'they simply argue that the trial court did not consider all the evidence before making those findings. Thus, their labeling of this as a “sufficiency” argument is simply incorrect. Because their argument is not one of sufficiency, a contemporaneous objection and a subsequent ruling on the objection was required to preserve the issue for appeal. Counsel did neither. It is well settled that the failure to raise a challenge or obtain a ruling below is fatal to the appellate court’s consideration of an issue on appeal. Anderson v. Ark. Dep’t of Human Servs., 2011 Ark. App. 522, at 8, 385 S.W.3d 367, 371; Bryant v. Ark Dep’t of Human Servs., 2011 Ark. App. 390, 383 S.W.3d 901.
For these reasons, we affirm.
Gruber and Hoofman, JJ., agree. | [
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PER CURIAM
Ixln 2013, the Arkansas Court of Appeals affirmed a judgment reflecting appellant Jonathan Berks’s convictions on charges of second-degree murder and aggravated robbery and his consecutive sentences of thirty years’ imprisonment for each of the two charges. Berks v. State, 2013 Ark. App. 203, 427 S.W.3d 98. After the mandate issued, Berks filed in the trial court a timely, verified petition under Arkansas Rule of Criminal Procedure 37.1 (2015) that challenged, the same judgment. The trial court granted Berks’s motion to file an amended and overlength petition, and later denied and dismissed the petition. Berks filed a request that the order be modified to include omitted issues, and the trial court also denied that motion, finding that the order had adequately addressed the issues in question. This court granted Berks’s motion for belated, appeal of the order on the basis that the trial court had not provided Berks with prompt notice of the order denying the motion for a ruling on omitted issues. Berks v. State, 2015 Ark. 234, 463 S.W.3d 289 (per curiam). That appeal is now before us, and we affirm.
12Berks raises three points on appeal, as follows: (1) that the trial court erred in finding that Berks’s claim that counsel was ineffective for counseling him to reject a plea offer was outside the purview of a Rule 37.1 petition; (2) that the trial court misconstrued his claim concerning evidence of mental defect and disease; and (3) that the trial court’s order was inadequate under Arkansas Rule of Criminal Procedure 37.3(a) in that it did not specify the parts,of the files or records relied upon for the court’s findings. We address the adequacy of the order first.
Under Arkansas Rule of Criminal Procedure 37.3, in order to summarily deny a Rule 37.1 petition without a hearing, the trial court is required to make written findings of fact, which specify any parts of the files or records that are relied on to sustain the court’s findings, and those findings must conclusively show that the petitioner is entitled to no relief. Beverage v. State, 2015 Ark. 112, 458 S.W.3d 243. This court affirms the denial of a Rule 37.1 petition notwithstanding the trial court’s failure to make sufficient findings under Rule 37.3(a) only in two circumstances: (1) when it can be determined from the record that the petition is wholly without merit, or (2) when the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. Turner v. State, 2016 Ark. 96, 486 S.W.3d 757. It is not, however, incumbent on this court to scour the record in a Rule 37 appeal to determine if the petition is wholly without merit. Id. The failure to make sufficient written findings is reversible error. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003).
In this case, some confusion arose from the fact that the trial court’s order addressed all issues raised in the original Rule 37.1 petition, and not just the two issues in the amended |,^petition. The amended petition had culled the vital issues to only two of those claims originally raised, and the trial court’s order declining to modify the order indicated that the order, while addressing these other issues as well, fully addressed the two issues that were raised in the amended petition. As discussed in depth below, the trial court’s findings concerning those two issues were either adequate for our review or the allegations in the petition were such that it was conclusive that no relief was warranted.
In his first point on appeal and his first claim in the amended Rule 37.1 petition, Berks alleges that counsel was ineffective for counseling him to reject a plea offer. Berks asserts that the trial court incorrectly found that this issue was not within the purview of Rule 37 proceedings because the decision to make such a recommendation was a strategic one. Although the trial court did not identify a basis for its finding that the decision was a strategic one, Berks’s allegations in the petition are such that it is conclusive no relief was warranted on those allegations.
This court will not reverse a trial court’s decision granting or denying post-conviction relief unless it is clearly erroneous. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922. 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. Turner, 2016 Ark. 96, 486 S.W.3d 757.
Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rasul v. State, 2015 Ark. 118, 458 S.W.3d 722. To prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient and (2) the deficient performance Uprejudiced his defense. Mister v. State, 2014 Ark. 446, 2014 WL 5494016. Unless a petitioner makes both showings, the allegations do not meet the benchmark on review for granting relief on a claim of ineffective assistance. Houghton, 2015 Ark. 252, 464 S.W.3d 922.
Defendants have a Sixth Amendment right to counsel, and that right extends to the plea-bargaining process. Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). Where trial counsel’s performance is deficient in recommending that the defendant reject a plea offer, the Strickland test is satisfied where the claimant shows a reasonable probability that, but for the defective performance; he and the trial court would have accepted the guilty plea. Id.
Counsel is presumed effective, and allegations without factual substantiar tion are insufficient to overcome that presumption. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. A petitioner claiming deficient performance must show that counsel’s representation fell below an objective standard of reasonableness, and this court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. A petitioner has the burden of overcoming the presumption that counsel is effective by identifying specific acts and omissions that, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.
Berks alleged in the petition that his attorney had brought him an offer from the prosecution for a deal in which the robbery charge was nolle prossed and the State recommended a thirty-year sentence on the murder charge. Berks alleged that he was | ¿facing potential sentences of life plus thirty years if he went to trial and that he was willing to accept the offer, but that counsel convinced him that “even if convicted he would receive a sentence less than 30 years.” Berks’s claim was that he would have accepted the plea offer and would not have rejected the offer but for the faulty advice. To support his allegation of prejudice, Berks points out that, on conviction, he received an aggregate sentence of 60 years’ imprisonment, which was longer than the proposed plea deal.
Berks did not contend that he had not been correctly advised of the maximum potential sentences on the charges if he chose to go to trial, and, instead, he alleged that trial counsel had made an erroneous strategic prediction about the outcome of the trial. Such an erroneous prediction, by itself, is not sufficient to demonstrate deficient performance. Henson v. State, 2015 Ark. 302, 468 S.W.3d 264 (per curiam) (citing Lafler, 132 S.Ct. 1376). Although Berks asserted that the decision to recommend such an outcome at trial was unreasonable because there was gruesome evidence available demonstrating that he had beaten the victim to death, evidence was also presented that Berks believed that the victim had molested his children. Berks, 2013 Ark. App. 203, 427 S.W.3d 98. As we have noted, the Constitution guarantees only that counsel be competent, not omniscient. Robinson v. State, 2016 Ark. 211, 492 S.W.3d 77. Berks failed to plead facts sufficient to support his allegations that counsel’s strategic prediction about the outcome of the trial was | ^unreasonable, and the denial of postconviction relief on this issue was therefore not clearly erroneous.
Berks’s second claim in the amended petition, which is also the basis for his remaining point on appeal, alleged that counsel was ineffective because she was unaware of Berks’s history of mental problems and therefore failed to utilize this information, that is, more specifically, that she failed to raise a diminished-capacity defense. Berks attached to the amended petition what appeared to be a portion of a doctor’s report concerning Berks’s mental condition in 1985. The trial court’s order denying postconviction relief indicated that Berks had .been evaluated by the Arkansas State Hospital and private psychologists before trial, that there was nothing in the record to support a mental disease or defect defense, and that the testimony at trial by Dr. James Money-penny did not support a finding that Berks was not competent or incapable of forming the requisite criminal intent or conforming his behavior to the requirements of the law. Dr. Moneypenny was one of two mental-health expert witnesses called by the defense at trial. Berks takes the position on appeal that these findings failed to address the issue because the trial court did not consider what was lacking in Dr. Mon-eypenny’s testimony and that his allegations supported a finding of ineffective assistance of counsel.
As the State points out in its brief, the trial record establishes that counsel was aware of Berks’s past treatment and that she considered but rejected presenting the affirmative defense of mental disease or defect. We may take judicial notice of the record from the earlier appeal' without need to supplement the record. Adkins v. State, 2015 Ark. 336, 469 S.W.3d,790 (per curiam). Counsel filed a notice of intent to raise such a defense, and she |7had Berks examined by three mental-health experts before reaching the ultimate decision to base the defense'at trial on Berks’s not having committed the crime, thereby choosing not to pursue the mental-disease- or-defect defense.
Although the affirmative defense was not raised at trial, following Berks’s conviction, trial counsel presented two of the private experts retained by the defense, Dr. Moneypenny, a psychologist, and Dr. Bob Gayle, a psychiatrist practicing forensic neuropsychiatry, during the sentencing phase of the trial. Contrary to Berks’s allegation that counsel was .unaware of his mental-health history, counsel elicited testimony from Dr. Gayle that referenced the 1985 evaluation and treatment Berks contends counsel overlooked. The same treatment was also referenced in Dr. Paul Dey-oub’s evaluation report concerning Berks’s mental- health. Dr. Deyoub was a forensic psychologist, acting as the State’s expert, who filed his report in the trial court several months before trial.
A defendant who would assert the affirmative defense of mental disease or defect must show that, at the time he engaged in the charged conduct, he lacked the capacity to (1) conform his conduct to the requirements of the law or (2) appreciate the criminality of his conduct. Ark. Code Ann. § 5-2-312 (Repl. 2013); State v. Lacy, 2016 Ark. 38, 480 S.W.3d 856. Dr. Deyoub specifically addressed the question of whether Berks qualified under the legal criteria of the statute, and, although líe considered Berks’s history of treatment in his evaluation, he concluded that Berks failed to meet the criteria of the statute.
Both Dr. Moneypenny and Dr. Gayle testified that they had not evaluated Berks to determine whether he met the statute’s criteria. Although Dr. Gayle specifically referenced having considered Berks’s- history of treatment, and, although he cautioned that he had not|sconducted his evaluation for that purpose, Dr. Gayle also indicated that, based on the information that he had available to him, he could not have determined that Berks met the criteria for the affirmative defense. Berks provided no supporting facts to establish that Dr. Moneypenny did not have the same treatment history available to him or that he may have reached a different conclusion had he evaluated Berks on the issue.
Berks’s allegations of ineffective assistance for this claim failed to meet his burden of overcoming the presumption that counsel is effective by identifying specific acts and omissions that, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Berks contends that his treatment history was sufficient to support a mental-disease-or-defect defense. Bald statements of a history of psychiatric- treatment, however, are not sufficient to establish the existence of a mental disease or defect. Adkins, 2015 Ark. 336, 469 S.W.3d 790 (citing Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999)).
Two different experts, one whom the defense retained, were unable to determine that Berks met the criteria for the affirmative defense, despite considering the .very information that Berks alleged counsel had failed to utilize. Although Berks contends that it was not reasonable judgment to forgo the mental-disease-or-defect defense, as the trial court correctly noted, the trial record contradicts Berks’s claim that counsel had a valid- basis to support that defense. Where a petitioner would assert ineffective assistance for fail ure to make an argument, the petitioner must show that the argument would have been meritorious because the failure to make an argument without merit is not ineffective assistance of counsel. Sims v. State, 2015 Ark. 363, 472 S.W.3d 107. Berks made no such |9showing. Therefore the trial court’s findings on this final point were sufficient for our review, and we affirm the denial of postconviction relief.
Affirmed.
. As the State contends, the record reflects that no formal plea offer was made, but that there were "communications.’' As indicated, we determine that, regardless, Berks’s allegations were without merit, and it is therefore not necessary for us to determine under what circumstances an offer made informally may be considered or Whether the court would have accepted the offer if formalized. | [
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ROBIN F. WYNNE, Associate Justice
| Thomas Conan Ortega appeals his conviction for rape, for which he was sentenced as a habitual offender to life imprisonment. On appeal, he challenges the sufficiency of the evidence supporting his conviction and argues that the trial court .erred when it refused to submit the jury verdict form by interrogatories. Because appellant was sentenced to life imprisonment, this court’s jurisdiction is pursuant to Arkansas Supreme Court Rule 1—2(a)(2) (2015). We affirm.
Appellant was charged as a habitual offender in the Garland County Circuit Court with rape under two alternative theories: that he engaged in sexual intercourse or deviate sexual activity with another person by forcible compulsion or that the victim was incapable of consent because she was physically helpless. At appellant’s jury trial, the victim testified that on the morning of July 4, 2014, her husband left their home in Mountain Pine to join a motorcycle club, which had been a subject of contention between the couple. That night at around 10:30, she left her cell phone with her children and her stepson in case of an ^emergency and drove to downtown Hot Springs to meet her husband. They had drinks at several. clubs, she became intoxicated, and the couple began to argue. As they were leaving on her husband’s motorcycle, she got off. She expected him to go back to get her, but he drove to his mother’s house; the victim was very upset and was crying hysterically on a curb when appellant approached her. She told appellant that she needed to get to her car, and he offered to help her; he put his arm around her, helping her walk, and they walked together for several blocks to a house on Grand Avenue. They went onto the porch, and appellant, who claimed to live there, knocked on the door. While they were sitting on the porch, appellant tried to kiss her, and she told him, “I can’t kiss you.” At that point, she got up and told appellant that she needed to get home. They walked around to the side of the house, at which point appellant knocked on the door of a smaller house, and the victim saw a Rent-A-Center sign and recognized Central Avenue, where her car was parked. As she. attempted to part ways with appellant, he put her in a choke hold and she passed out. She awoke inside a dumpster, opened the lid, and saw the Rent-A-Center sign. She realized that she had blood on her hands and face and that she was sore in her genital area, and she ran toward Central Avenue seeking help. She collapsed in the street, and two 911 dispatchers in separate vehicles saw her and stopped to help. They testified that they were driving home at around 6:00 a.m. after working a shift, and they -found the victim crying, |svery emotional and upset,, and covered in blood. She stated that she had been raped. She was taken by ambulance to the hospital, and medical staff there collected a rape kit. The nurse testified that the victim had a lot of dirt and debris (such as leaves) in her mouth, her genital area, and her undergarments and clothing. The emergency-room physician who treated the victim testified that she had tenderness and bruising on her neck that were consistent with choking and were not consistent with her wearing a c-collar in the ambulance and upon admission to the hospital. Expert testimony was presented that appellant’s DNA was present on the vaginal swab .from the rape kit. In addition} the jury saw photographs of the victim’s injuries. Detective Patrick Langley testified that he interviewed appellant on July 5, and appellant denied knowing, or having any involvement with, the victim. At that time, Det. Langley photographed injuries to appellant’s leg, arm, torso, and hands; the injuries appeared to be recent, and included scratches and redness. About one month later, Detective Langley interviewed appellant a second time, and he again stated that, he did .not know the victim and did not have any kind of sexual involvement with her.
For his first point on appeal, appellant argues that the trial court erred in denying his motion for directed verdict; he contends that the State failed to present sufficient evidence to support a conviction for rape under either theory—by forcible compulsion or because the victim was physically helpless. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Jeffries v. State, 2014 Ark. 239, at 3, 434 S.W.3d 889, 893. Substantial evidence is evidence forceful enough to compel a conclusion one way or the 14other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Ark. Code Ann, § 5-14—103(a)(1) (Repl. 2013). A person also commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is incapable of consent because he or she is- physically helpless. Ark. Code Ann. § 5-14-103(a)(2)(A). Those terms are defined in our criminal code as follows. “Sexual intercourse” means penetration, however slight, of the labia majora by a penis. Ark. Code Ann. § 5-14-101(11). “Forcible compulsion” means physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person. Id. § 5-14-101(2). “Physically helpless” means that a person is unconscious; physically unable to communicate a lack of'consent; or rendered unaware a sexual act is occurring. Id. § 5-14-101(7). Here, defense counsel made a specific motion for directed verdict at the close of the State’s case, and renewed the motion at the close of all evidence. The circuit court denied the motions.
In his brief, appellant recounts the evidence favorable to his position and asks this court to make credibility determinations. He contends that, “substantial evidence supports an act of consensual sexual intercourse.” Appellant points to evidence that the victim -was angry with her husband; that she had been drinking on July 4 and into the early morning hours of July 5, 2014; that her anger continued when her husband left her “stranded”; that a witness saw her willingly walking down the street with appellant; that- she had no recollection of what had happened between allegedly being choked and waking up in a | fidumpster. Appellant argues that the redness and pain on her neck was due to the c-collar she wore, not appellant choking her, and that any -minor injuries she had were likely, from her fall on Central. Avenue. Regarding the “physically helpless” charge of rape, appellant appears to argue that the evidence was insufficient, to show that the victim was actually too intoxicated to consent to sexual intercourse.
In short, appellant asks this court to disbelieve the victim’s testimony and the other, circumstantial evidence of rape and to believe the defense’s theory of the case. But this court does not make credibility determinations. See Simpson v. State, 355 Ark. 294, 300, 138 S.W.3d 671, 675 (2003) (“[I]t is the sole province of the jury to determine a witness’s credibility, as well as the weight and value of his testimony.”) Furthermore, circumstantial evidence constitutes substantial evidence when every other reasonable hypothesis-consistent with innocence is excluded. Nance v. State, 323 Ark. 583, 591-92, 918 S.W.2d 114, 117 (1996). Here, there was evidence that the victim was unconscious (and thus physically helpless) when appellant forcibly engaged in sexual- intercourse - with her against her-will. Properly viewing the evidence in the light most favorable to the State, we hold that there was substantial evidence of rape under both alternate theories of the case. Therefore, we affirm on this point.
For his second point on appeal, appellant argues that the trial court should be reversed and his case remanded for a new trial because the court erred when it refused to submit the jury verdict form by interrogatories. At trial, the State initially agreed to such a verdict form; it later objected and requested a general verdict form, citing Terry v. State, 371 Ark. 50, 263 S.W.3d 528 (2007). In Terry, the defendant was charged with capital murder under | fithe felony-murder and premeditated- and-deliberated provisions of the statute; the jury rendered a general verdict of guilty, and this court affirmed the conviction. Appellant is correct that the issue of the propriéty of the general verdict form was not addressed in Terry-, however, appellant offered no authority or convincing argument to meet his burden of showing that use of the model verdict form was improper. On appeal, appellant contends that the general verdict form allowed the jury to convict him without a unanimous decision on either alternate theory of rape, and that the court committed revérsible error when it refused his proffered nonmo-del-verdict form requiring the jury to unanimously find him guilty of rape by forcible compulsion, guilty of rape because the victim was physically helpless, or not guilty. In assessing whether a circuit court should have submitted a proffered nonmo-del-verdict form to the jury, this court uses the same standard that it applies when considering whether a proffered nonmodel jury instruction is warranted. Perry v. State, 2014 Ark. 535, 453 S.W.3d 650. This court has held that nonmodel jury instructions are to be given only when the circuit court finds that the model instructions do not accurately state the law or do not contain a necessary instruction on the subject. Id. Further, just because a proffered jury instruction may be a correct statement of the law does not mean that a circuit court must give the proffered instruction to the jury. Id. This court will hot reverse a circuit court’s decision to give or reject an instruction unless the court abused its discretion. Id.
We dp not reach the merits of appellant’s argument because he cites no authority whatsoever in support of his argument and it is not apparent without further research that his argument is well taken. This court has repeatedly held that it will not consider an argument that presents no citation to authority or convincing argument. E.g., Kelly v. State, 17350 Ark. 238, 241, 85 S.W.3d 893, 895 (2002); Strong v. State, 372 Ark. 404, 419, 277 S.W.3d 159, 170 (2008) (“We will not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support and it is not apparent without further research that the argument is well taken.”)
Pursuant to Arkansas Supreme Court Rule 4-3(i), the record has been reviewed for all objections, motions, and requests that were -decided adversely to appellant, and no prejudicial error has been found.
Affirmed.
Goodson, J., concurs.
Danielson and Hart, JJ., dissent.
. The house was later identified as belonging to appellant's brother.
. The victim further testified on cross-examination that the soreness she experienced in her genital area had never happened to her before during "normal, voluntary” sexual intercourse. | [
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BART F. VIRDEN, Judge
hThe parties in, this case divorced after thirty years of marriage. Appellant Michael Nelson argues that the circuit court erred in awarding permanent alimony of $2500 per month to appellee Janice Nelson. Michael also asserts that the circuit court erred in unequally distributing the marital property in favor of Janice, and in ordering him to pay the greater share of the marital debt. We find no error, and we affirm.
I. Facts
On April 10, 2014, Janice Nelson filed for divorce, on the ground of general indignities. Janice requested $4500 per month in alimony and for the court to divide the property and debt. Michael Nelson counterclaimed for divorce, and he requested that Janice’s complaint be dismissed. Michael also requested that the circuit court equally divide the property and the debt, Janice filed an amended complaint for divorce on December 10] 2 2014, alleging adultery and again requested alimony and for the circuit court to divide the property. Michael waived corroboration of grounds.
On April 14, 2015, Michael filed an answer and counterclaim asserting general indignities as grounds for the divorce. He asserted that Janice was a beautician and could derive substantial income from pursuing that career. Michael stated in his complaint that he was unemployed and “lacked ready cash” to pay alimony. He also argued “unclean hands” and that Janice admitted to having had an affair while they were married. Michael also claimed that if the affair had not actually occurred, then Janice committed “intentional fraud in the infliction of mental or emotional distress” by lying about the affair. Michael also asserted that Janice had not stated why she was entitled to alimony.
In her response, Janice denied having had an affair. In an amended complaint, filed on April 20, 2015, Janice stated that she should be awarded alimony because during their thirty-year marriage, Michael had been the primary source of income, with a salary over $200,000 for the past five years. By contrast, her income was around $20,000. She alleged that he had the ability to pay and significantly more education and ability to earn than she did.
On May 15, 2015, the circuit court held a hearing on the matter. Janice testified that she was the caregiver to her six-year-old granddaughter and that she did not receive child support from the child’s parents. She testified that she was a licensed beautician, and she had worked off and on during their marriage; however, most recently and at the time of the hearing, she was the secretary for the City of Warren. Jánice testified that she made around $18,000, and she was receiving food stamps. She testified that her monthly expense^ were around $3500, not including credit card debt, and that her monthly income was around $1500. Michael had been sending her money to pay bills since they separated, but he had ceased sending money in the spring of 2015.
Janice testified that in 2014 Michael spent $13,000 on his girlfriend in one nine-day period; $6000 on jewelry another time; and $3200 during a trip the two took together. She stated that Michael had also bought his girlfriend’s son a car. Janice also testified about the equity in their three homes and about the debt remaining on each of the homes. Janice testified that she had not had an affair but told Michael that she had in order to upset him.
At the hearing Michael testified that due to the nature of his work as a computer consultant, he had lived mostly in hotels over the years which were paid for as part of his work contract. He had become tired of living in hotels and had recently opted to live in a lake house and that his portion of the rent had been $450 a month. At the time of the hearing he was living with friends. Michael estimated that he owed $200,000 on delinquent income taxes from 2013 and 2014. Michael testified that he would have his current salary for four months after the hearing and that he had been offered a job in Orlando for $120,000 a year including moving expenses. Michael stated that his prospects for work were good, just not as good as they had been due to outsourcing his type of work to other countries. Tax returns confirmed that Michael’s income had been over $250,000 in 2009 and 2011.
Michael admitted to the affair with Tina Martin and that he had spent around $45,000 on her and her family in 2013-2014.
On August 21, 2015, the circuit court entered its order. The circuit court granted the divorce to Janice on the ground of adultery. It awarded the marital residence in Warren |4to Janice with the instruction that she would assume the mortgage of $37,000. The circuit court found that the equity in the marital home was $73,000. Michael’s mother’s residence was awarded to Michael, and the circuit court found that the debt remaining on that house was $16,000 and that it had equity of $59,000. The circuit court awarded Janice’s parents’ home to Janice with the debt remaining on that house at $13,000 and the equity amounting to $17,000. The court recog nized that the division of the property was unequal and noted that in apportioning the property ⅛ considered the amount of money from the marital assets that had been spent on Michael’s girlfriend and her family. The circuit court also took into account the fact that Michael had taken the contents of a marital bank account. Both parties, were awarded their cars and personal belongings. Michael received his boat and boat trailer and his motorcycle and its trailer. Michael was awarded the balance of the Bank of America account and half of the AFCU account as well.
The circuit court found that on average over the past five years, Michael had earned around $250,000 per year, and Janice had earned around $18,000 per year. The circuit court noted that. Janice was currently the secretary for the City of Warren and was receiving food stamps to supplement her income.. During the marriage Janice had primarily been a housewife, and Michael had-been, and was currently, a computer technology consultant. The circuit court found that though .Michael had been unemployed for a time, he had been rehired at the same salary as before, and was employed at the time of trial. The circuit court found that Michael had good earning potential.
| ¿The circuit court noted that Janice had filed her own taxes for 2014 and that Michael had failed to file taxes for 2013 and 2014. The circuit court found that Janice had no way of addressing the tax liability; thus, Michael would be solely responsible for his unpaid taxes.
Janice was awarded $2500 a month in lifetime alimony. In awarding alimony, the court considered the need of one spouse and the ability to pay of the other spouse:
[I]n light of the specific facts of this ease and also the secondary factors of the financial needs and obligations of both parties’ past standard of living; the income,-current and anticipated, of the ■parties; the earning capacity of the parties; the disposition made of the marital jointly owned residence; the amounts if which will be available after the entry of the Decree to each of the parties for the payment of living expenses and the length of the marriage.
The court iterated the “gross disparity in earning capacity and actual historical income production of the parties” as the basis for its award of alimony. Janice was also awarded $1500 in attorney’s fees.
On August 28, 2015, Michael filed his notice of appeal. On September 4, 2015, the divorce decree was entered. Michael filed an amended notice of appeal on September 18, 2015. On' appeal Michael asserts that the circuit court erred in awarding permanent alimony, that it erred when it determined the amount of the alimony, and that the circuit court erred when it unequally distributed the property and the debt. We find no error and affirm.
II. Arkansas Supreme Court Rule.j-2(a)(6)
Before we reach our discussion of the merits of this case, we must address an issue arising from Michael’s statement of the case. Arkansas Supreme Court Rule 4-2(a)(6) requires a concise statement of the case without argument. The statement of the case should be sufficient to enable the court to understand the nature of the case, the general fact situation, and the action taken below. Boykin v. Crockett Adjustment Ins., 2012 Ark. App. 685, at 1. Here, Michael’s statement of the case im-permissibly contains argument. Michael makes an argument concerning the unequal distribution of property, the award of alimony, and he makes an accusation against the circuit court- that it issued a “classic one-sided judicial opinion where one party gets the proverbial gold mine, and the other receives the entrance to the mine.” We caution counsel to refrain from such statements in the future because they are prohibited by our rules and inappropriate.
III. Points on Appeal
A. The Duration and the Amount of Alimony
Appeals of domestic-relations proceedings are reviewed de novo. Wadley v. Wadley, 2012 Ark. App. 208, at 2, 395 S.W.3d 411, 413. The decision to grant alimony lies within the sound discretion of the circuit court and will not be reversed on appeal, absent an abuse of discretion. Taylor v. Taylor, 369 Ark. 31, 34, 250 S.W.3d 232, 235 (2007). It should also be noted that the division of marital property and an award of alimony are complementary devices that a circuit court may employ to make the dissolution of the marriage financially equitable. Webb v. Webb, 2014 Ark. App. 697, at 3-4, 450 S.W.3d 265, 268-69. There can be no abuse of discretion, and a circuit court’s decision regarding these issues cannot be overturned unless it can be demonstrated that it exercised its discretion improvidently or thoughtlessly without due consideration. Smithson v. Smithson, 2014 Ark. App. 340, 436 S.W.3d 491.
An award of alimony is not mandatory but rather is discretionary, and the circuit court’s decision regarding any such award will not be reversed on appeal absent an abuse of that discretion. Smithson, supra. This court has recognized that a circuit court is in the best 17position to view the needs of the parties in connection with an alimony award. Id. The purpose of alimony is to rectify the economic imbalance in the earning power and standard of living of the divorcing parties, in light of the particular facts of each case. Id. The primary factors are the financial need of one spouse and the other spouse’s ability to pay, but other factors are the circumstances of the parties; the- couple’s past standard of living; the value of jointly owned property; the amount and nature of the income, both current and' anticipated, of both parties; the extent and nature of the resources and assets of each party; the amount of each party’s spendable income; the earning ability and capacity of both parties the disposition of the homestead or jointly owned property; the condition of health and medical needs of the parties; and the duration of the marriage. Id. The need for flexibility outweighs the need for relative certainty in assessing alimony. Id. If alimony is awarded at all, it should be an amount that is reasonable under all the circumstances. Id.
First, Michael argues that alimony is always modifiable, and that an award of “permanent” alimony potentially runs afoul of amendment 80 to the Arkansas Constitution. He is correct in part. Alimony is always subject to modification. In Vigneault v. Vigneault, 2010 Ark. App. 716, at 8, 379 S.W.3d 566, 571, a post-Amendment 80 case, our court held that the circuit court’s award of permanent alimony was not in error and that the issue of alimony could be revisited:
The parties in this case are in their mid-fifties and are divorcing after a long-term marriage. Appellant has a high-paying job, and during the marriage, the parties enjoyed a comfortable lifestyle. On the other hand, appellee’s best earning potential is limited to an eleven-dollar-per-hour job. Given the parties’ ages, their respective earning capacities, the length of the marriage, and their married lifestyle, we can find no abuse of discretion in the trial court’s decision not to limit the duration of the alimony award. As observed by the circuit court, appellant can seek modification of the award should there be a change in circumstances.
|s(Emphasis added.)
Michael’s argument that the circuit court’s award of permanent alimony should be reversed “as a matter of law” is not well taken. While Michael is correct that there is no such animal as “permanent” alimony, the nomenclature employed by the circuit court does not constitute error. As set forth in the case above, “permanent”—or as in the present case “lifetime”—alimony is just another way of saying that the circuit court has chosen not to limit the amount of time a spouse should receive alimony. We find no error, and we affirm.
Michael also contests the amount of the alimony award: Our court has never reviewed an award of alimony solely on a mathematical-formula analysis. Kuchmas v. Kuchmas, 368 Ark. 48, 46, 243 S.W.3d 270, 272 (2006) (holding that the amount of alimony should not be reduced to a mathematical formula because the need for flexibility outweighs the need for relative certainty). Here, because the circuit court considered the income and earning capacity of both parties, the assets of both parties, their needs and obligations, their past standard of living, and the length of the marriage, we hold that the amount of alimony awarded by the circuit court was not an abuse of discretion, and we affirm. ■
B. Unequal Distribution of Property and Debt
Michael contends on appeal that the circuit court erred when it unequally distributed the marital property. This court reviews division-of-marital-property cases de novo; even though we do so, we will not reverse the circuit court’s findings of fact unless they are clearly erroneous, or against the preponderance of the evidence. Kelly v. Kelly, 2014 Ark. 543, at 5-6, 453 S.W.3d 655, 660. The division of property itself is also reviewed, and the | flsame standard applies. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. In order -to demonstrate that the circuit court’s ruling was erroneous, the appellant must show that the circuit court abused its discretion by making a decision that was arbitrary or groundless. Id.
A circuit court is required to divide the marital estate in a manner that is equitable, but we do not require mathematical precision in doing so. Coatney v. Coatney, 2010 Ark. App. 262, 377 S.W.3d 381. Arkansas Code Annotated section 9-12-315 (Repl. 2015) requires that the circuit court, equally divide marital ¡property between the. parties unless the circuit court finds such a distribution inequitable. If the circuit court finds that an unequal division of the property is appropriate, the court shall make some other division that the court deems equitable taking into consideration (i) the length of the marriage; (ii) age, health, and station in life of the parties; (iii) occupation of the parties; (iv) amount and sources of income; (v) vocational skills; (vi) employability; (vii) estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; (viii) contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and (ix) the federal income tax consequences of the court’s division of property. Id.
When property is divided pursuant to the foregoing considerations, the circuit court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis - and reasons should be recited in the circuit court’s order. See Ark. Code Ann. § 9-12-r 315(a)(1)(B).
I mHere, the circuit court stated that It recognized that it was unequally-distributing the property and that “the court has also considered the amount of money from marital assets defendant has spent on his girlfriend, Tina Martin, as well as his recovery of the balance in the Bank of America account as of December 31, 2014.” Michael testified that he spent about $45,000 of marital funds on his girlfriend, and the circuit court found that bank account had contained about $16,000 when Michael obtained the balance; those two figures totaled about $61,000. Janice received $90,000 in real-estate equity and Michael received $59,000-a difference of $31,000 in assets. Michael asserts that the circuit court’s findings concerning the inequitable division of property were inadequate, arguing that “the only explanation offered by the -'trial court was its statement that’ it had considered the money spent on his girlfriend, Tina Martin, as well as the balance in the Bank of America account .... ” Indeed, the circuit court found that Michael actually ended up ahead by about $30,000 in light of the $45,000 in marital funds spent on Martin and her family and in light of the $16,000 left in the bank account when Michael took- possession of it. Furthermore, the circuit court discussed in its order the great disparity- in the parties’ incomes, Janice’s reliance on food stamps, Michael’s level of education as compared to Janice’s, and Michael’s and Janice’s respective roles during the marriage as breadwinner and housewife.
In light of the above findings, we cannot say that the circuit court’s explanation is inadequate or insufficient. While the circuit court must consider the factors set forth in the statute and state its reasons for dividing properly unequally, it is not required to list each factor in its order or to weigh all the factors equally. See Kelly, supra; Bamburg v. Bamburg, 2011 Ark. App. 546, 386 S.W.3d 31; Hernandez v. Hernandez, 371 Ark. 323, 265 S.W.3d 746 (2007). Furthermore, the specific enumeration of the factors within the statute does not preclude a circuit court from considering other relevant factors, where exclusion of other factors would lead to absurd results or deny the intent of the legislature to allow for the equitable division of property. Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008). The statute requires the circuit court to explain its reasons for not dividing the marital property equally, and the circuit court did just that. We affirm the circuit court’s unequal division of the marital property.
Michael also challenges the circuit court’s unequal division of the marital debt. A circuit court’s decision to allocate debt to a particular party or in a particular manner is a question of fact, and we will not reverse the finding on appeal unless it is clearly erroneous. Fields v. Fields, 2015 Ark. App. 143, at 3, 457 S.W.3d 301, 304. While Arkansas law requires the circuit court to distribute half of the parties’ marital property to each party unless the court finds such a division to be inequitable, there is no presumption that an equal division of debts must occur. Id. The circuit court has authority to consider the allocation of debt in the context of the distribution of all of the parties’ property. Id. The overriding purpose of the property-division statute is to enable the court to make a division that is fair and equitable under the circumstances. Boxley v. Boxley, 77 Ark. App. 136, 142, 73 S.W.3d 19, 23 (2002). The court’s findings as to the circumstances warranting the property division will not be reversed unless they are clearly erroneous. Id. We will not substitute our judgment on appeal as to what exact interest each party should have; we will decide only whether the order is clearly wrong. Id.
|1gHere, the circuit court -found ¡that Janice, who earned around $18,000 per year and had to rely on food stamps, had mo ability to pay the delinquent income taxes from Michael’s salary, which the court found averaged around $250,000 during that time. In allotting the debt, the circuit court also considered Janice’s primary role as a caretaker of the household and the children during their marriage and Michael’s role as the breadwinner. The circuit court found that Michael had “demonstrated a resourceful ability to earn substantial amounts of money[.]” In light of the circuit court’s consideration of the facts of this case, we cannot say that its division of marital debt was clearly erroneous, and we affirm.
Affirmed.
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BART F. VIRDEN, Judge
I,The Washington County Circuit Court terminated the parental rights of appellant John Helvey to his daughter, A.H. (DOB: 11-9-2010). Helvey argues that there was insufficient evidence of grounds to support the termination and that the trial court erred in finding that termination was in A.H.’s best interest because there was insufficient proof of potential harm. We affirm.
I. Termination of Parental Rights
An order forever terminating parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the child, including consideration of the likelihood that the child will be adopted if the termination petition is granted and the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2015). l2The trial court must also find by clear and convincing evidence that one or more statutory grounds for termination exists. Ark. Code Ann. § 9-27-341(b)(3)(B). Those grounds include
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.
(ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to ... have subjected any juvenile to aggravated circumstances.
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a); (ix)(a)(J)(A).
“Aggravated circumstances” means, among other things, that a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(ix)(a)(J)(B)(i).
II. Procedural History
On March 25, 2015, the Arkansas Department of Human Services (DHS) received a report that A.H.’s father had been arrested for two counts of delivery of methamphetamine, possession of drug paraphernalia, and endangering the welfare of a minor in the second degree. The child was left with her paternal grandmother, Lisa Marshall. Marshall appeared to be coherent at the time; however, when DHS contacted Marshall on the telephone, she rambled, and her speech was slurred. DHS administered a Isdrug test, and Marshall tested positive for methamphetamine and THC. DHS placed a seventy-two-hour hold on A.H. and filed a petition for emergency custody and dependency-neglect, which was granted. The trial court subsequently found probable cause to issue the ex parte order, and A.H. was placed in the custody of her maternal grandmother, Tammy Preston. The trial court ordered that there be no contact between A.H. and Marshall.
In a May 22, 2015 order, A.H. was adjudicated dependent-neglected as a result of neglect and parental unfitness. The trial court noted that a protective-services case was first opened on the family in December 2010 due to the parents’ drug use. AH. was permitted to remain in her parents’ custody as long as Preston was living in the. home. In September 2012, A.H. was placed in foster care due to her parents’ continued drug use. Later, custody of the child was given to Preston. In June 2014, A.H. was returned to Helvey’s custody and remained with him until his arrest in March 2015 for drug-related offenses.
On May 28, 2015, DHS filed a motion to terminate reunification services on the basis that Helvey had subjected A.H. to aggravated circumstances. A hearing was held on July 10, 2015, to discuss DHS’s recommendation and for purposes of permanency planning. In granting DHS’s motion, the trial court found that there was little likelihood that services would result in successful reunification because Helvey had not remedied his drug use | ¿despite numerous services; he was incarcerated and facing new drug charges; and it was the second time A.H. had been removed from his custody as a result of his drug use. In the permanency-planning order, the trial court noted that the goal was reunification but established a concurrent goal of adoption. The trial court specifically found that DHS had made reasonable efforts to provide Helvey with services but that A.H. could not be placed with him within a time frame consistent with his daughter’s developmental needs. The trial court again ordered that there be no contact between A.H. and Marshall.
On July 15, 2015, Helvey pleaded guilty to possession of drug paraphernalia and two counts of delivery of methamphetamine. The prosecutor’s “Short Report of Circumstances” indicated that in March 2015, a digital scale, baggies, and a ledger had been found in Helvey’s possession and that Helvey had sold methamphetamine to a confidential informant on two occasions. Helvey was sentenced to serve four years in prison followed by a six-year suspended sentence.
On August 3, 2015, DHS filed a petition to terminate Helvey’s parental rights. A hearing was held on December 16, 2015. Mark Thordsen, a family service worker at DHS, testified that A.H. was bonded to Preston and doing well in school. He testified that he had not received any proof that Helvey had addressed his history of substance abuse or otherwise complied with the case plan, but he did recall that Helvey had told him that he was in drug court and had resolved his criminal issues. Thordsen opined that Helvey had not made significant, measurable progress in the case. He admitted, however, that he had been assigned to A.H.’s case two weeks prior to the hearing. Thordsen further testified that hej^did not believe that there were any services DHS could provide to Helvey at that time in order for AH- to be returned to his custody.
In conjunction with Thordsen’s testimony, DHS offered into evidence an October 16, 2015 report authored by Kerri Adams, the previous family service worker. Adams noted that, while on ADC bond, Helvey was living with his mother and had reported to drug court, participated in AA/NA meetings and drug screens, and completed parenting classes. She further wrote in the report that
[d]espite the services completed by John within his short parole[,] the Department continues to have concerns that John has continued to use and be involved with illegal substances despite being incarcerated multiple times and having' previous open Protective Services cases and a previous Foster Care case with the Department that offered multiple services to remedy the continuing issues involving substance abuse and misuse.
Tammy Preston testified that her daughter Stephanie had died from a drug overdose in 2014. According to Preston, A.H. had lived with her for all but seventeen months of her life and currently calls her “mom.” Preston stated that she thought it was in A.H.’s best interest for Helvey’s parental rights to be terminated. She further said that she would pursue adoption of A.H. if Helvey’s rights were terminated. When asked how she would feel if the court were to instead award her permanent custody, Preston said,
If I had a crystal ball, and I could look into it and see that [Helvey] was gonna be fíne, I would be fine. But knowing that his mom was in drug court two years ago when I had [A.H.] or three years ago and that she still failed her drug test—it’s not that I don’t have faith in programs and things like that, but it’s up to people to make their own choices to- change. And I have to make the choices I make every day to take care of a five-year-old arid make sure that she’s safe and healthy and not around bad things. And it seems that I am the only person in the world to do that for her. And so I don’t think that I should want her to be with somebody that I don’t know is going to do that every day of his life.
| (¡According to Preston, Helvey had been incarcerated three times during A.H.’s life. She said that the first time Helvey went to prison was after both he and Marshall had been arrested for manufacturing methamphetamine and possession of marijuana. After Helvey was released from prison, he lived in her home along with Stephanie and A.H. According to Preston, Helvey was sent back to prison a second time on a parole violation after he had tested positive for drugs. Helvey’s third time in prison was in connection with the March 2015 charges.
Helvey testified that he was currently employed full time but that the job was “kind of slow with the winter” and that he was living with his mother. After his arrest in March 2015, he was free on an ADC bond from August 5 to October 5, 2015. During that time, he sought to participate in drug court because he wanted help with his addiction. Helvey stated that he had also tested negative for drugs, attended AA/NA meetings - almost daily, and completed parenting classes. He was released from prison on November 25, 2015. Helvey conceded that he had been in prison three times during A.H.’s short life and acknowledged, “I know I can’t-have my daughter now.” With regard to the last open DHS case on the family, Helvey testified that he had received help from DHS and had been provided with services. Helvey said that he had also received drug treatment in prison and had participated in group counseling for drug addiction.
At the conclusion of the hearing, the trial court granted DHS’s petition on grounds under section 9-27-341(b)(3)(B)(vii)(a) and (ix)(u). In determining that termination was in A;H.’s best interest, the trial court considered A.H.’s adoptability and the potential harm that could result from returning her to Helvey’s custody.
17III. Standard of Review
Termination-of-parental-rights cases are reviewed de novo. Jackson v. Ark. Dep’t of Human Servs., 2013 Ark. App. 411, 429 S.W.3d 276. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof .that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id. Termination. of parental rights is an extreme remedy and in derogation of a parent’s natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id.
IV. Discussion
A. Grounds
Helvey challenges both grounds on appeal; however, only one ground is necessary to support termination of parental rights. Lively v. Ark. Dep’t of Human Servs., 2015 Ark. App. 131, 456 S.W.3d 383. In finding that A,H. had been subjected to aggravated circumstances under Ark, Code Ann. § 9-27-341(b)(3)(B)(ix)(a),. the trial court determined that there was little likelihood that further services would result in successful reunification with A.H. The trial court considered that Helvey had been provided services by DHS in the past, that he had received drug treatment and counseling in prison, and that, despite | shaving had A.H. removed from his custody on more than one occasion, Helvey continued to use drugs and was incarcerated multiple times for drug use.
According to Helvey, the only evidence to support a finding of aggravated circumstances was the fact that he had relapsed in the past. He contends that this does not automatically mean he will relapse again. Helvey asserts that he had never before participated in drug court and that he was now confident that he would be able to maintain his sobriety. Helvey argues that the trial court did not even consider the documentary evidence or his testimony regarding his present efforts as shown by the trial court’s statements from the bench regarding drug court, which in relevant part were that “it’s not like drug court is some voluntary program .... You go to drug court because they say you got criminal drug charges and you have a drug problem and if you don’t complete it you’re gonna be going to prison.”
Helvey’s sentencing order indicates that entry into and completion of the drug-court program was a condition of Helvey’s suspended sentence. In its order terminating parental rights, the trial court set forth evidence of Helvey’s efforts, e.g., a drug assessment, multiple negative drug screens, sign-in sheets for AA/NA meetings, certificates showing his completion of twelve hours of parenting classes, and proof of his participation in drug court. The trial court discussed drug court and stated that Helvey was fortunate to be in what it considered “a very good program.” The trial court went on to say that “[Hel-vey’s] pretty new in the program. He has, I think his attorney said, another year left to go.”.
Giving Helvey more time is contrary to the statutory mandate to provide permanency for A.H.- The intent of our termination statute is to provide permanency in a laiuvenile’s life in all circumstances where return to the family home is contrary to the juvenile’s health, safety, or welfare, and it appears from the evidence that return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective. Ark. Code Ann. § 9-27-341(a)(3). Further, a child’s need for permanency and stability may override a parent’s request for additional time to improve the parent’s circumstances. Dozier v. Ark. Dep’t of Human Servs., 2010 Ark. App. 17, 372 S.W.3d 849.
Under these circumstances, we cannot say that the trial court clearly erred in terminating Helvey’s parental rights based on aggravated circumstances. Because only one ground was necessary to support termination, we do not address the alternative ground of subsequent factors.
B. Best Interest
The court shall rely on the record of the parent’s compliance in the entire dependency-neglect case and evidence presented at the termination hearing in making its decision whether it is in the juvenile’s best interest to terminate parental lights. Ark. Code Ann. § 9-27-341(a)(4)(B). In considering the best interest of the child, there is no requirement that every factor considered be established by clear and convincing evidence; rather, after consideration of all the factors, the evidence must be clear and convincing that termination is in the best interest of the child. Renfro v. Ark. Dep’t of Human Servs., 2011 Ark. App. 419, 385 S.W.3d 285.
Arkansas Code Annotated section 9-27-341(b)(3)(A) provides that the trial court is required to consider the potential harm to the health and safety of a child that might result from continued contact with a parent. The court is not required to find that actual harm |inwould result or to affirmatively identify a potential harm. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. The potential-harm evidence must be viewed in a forward-looking manner and considered in broad terms. Samuels v. Ark. Dep’t of Human Servs., 2014 Ark. App. 527, 443 S.W.3d 599.
Helvey argues that there was insufficient evidence to support the finding of potential harm. He maintains that the only evidence of potential harm was through the testimony of Thordsen and Preston. He contends that, given Thord-sen’s limited knowledge of the case, his testimony was “of no evidentiary value” and that Preston’s testimony was “self-serving.” This court will defer to the trial court’s evaluation of the credibility of the witnesses. Crawford v. Ark. Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Contrary to Helvey’s assertion, we hold that the trial coúrt properly considered evidence of Helvey’s past behavior in determining that potential harm could befall A.H. in her father’s custody. Past behavior is correctly viewed as a predictor of potential harm that may likely result if a child is returned to the parent’s custody. Dowdy, supra.
Nevertheless, Helvey claims that DHS presented “the bare minimum of evidence” in proving potential harm, which this court has cautioned against. Helvey is referring to a footnote in Renfro in which this court suggested that DHS had presented the “bare minimum” evidence in proving adoptability. Renfro, 2011 Ark. App. 419, at 20, n.3, 385 S.W.3d 285, 295 n.3. Helvey argues that the trial court relied on his history of drug abuse and drug-related crimes and gave no consideration to the fact that -he had sought out and received permission to participate in drug court. There is, however, no indication that the trial court gave no consideration to Hel-vey’s participation in drug court as discussed earlier. | nThe trial court recognized that completion of the drug-court program was a condition of Helvey’s suspended sentence and that whether Helvey could maintain his sobriety was uncertain given that he had another year of drug treatment. Living in continued uncertainty is, itself, potentially harmful to children. Bearden v. Ark Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001).
Helvey further contends that his rights should not have been terminated given that there was a less restrictive alternative available, i.e., permanent custody with Preston. He argues that this negated the compelling need for permanency and that instability was not an issue. Helvey cites Lively v. Arkansas Department of Human Services, 2015 Ark. App. 131, 456 S.W.3d 383, where this court held that the trial court clearly erred in its consideration of adoptability in its best-interest analysis. We said that termination of Lively’s rights would not achieve permanency because the children were already in the permanent care and custody of their mother. Here, Helvey does not challenge the adoptability of A.H. on appeal, and adoptability became an issue when A.H.’s mother died. Helvey cannot equate a parent’s continued custody of a child to A.H.’s placement with her grandmother.
Helvey also cites Cranford v. Arkansas Department of Human Services, 2011 Ark. App. 211, 378 S.W.3d 851, where this court reversed the trial court’s determination that termination of the Cranfords’ parental rights was in their child’s best interest. This court noted that termination would not provide greater stability for the child because he was in the custody of, and being cared for, by his maternal grandparents. This court stated that the child and his parents had lived with the grandparents before the case had begun and that the child would remain with his grandparents regardless of the result of the termination [ ^proceedings. The Cranford case is also distinguishable. In Cranford, the child was never placed with strangers, whereas A.H. was in foster care. Also, the grandparents in Cranford did not ask that the parents’ rights be terminated; whereas here, Preston testified that she thought termination of Helvey’s parental rights would be in A.H.’s best interest.
We recently rejected an argument similar to that raised by Helvey in this appeal. In McElwee v. Arkansas Department of Human Services, 2016 Ark. App. 214, 489 S.W.3d 704, the father argued that the trial court erred in terminating his parental rights instead of choosing the less restrictive option of permanent custody with the child’s paternal aunt. This court noted that a trial court is permitted to set termination and/or adoption as case goals even when a relative is available and requests custody. Arkansas Code Annotated section 9-27-338(c) lists permanency goals in order of preference. The fourth goal is authorizing a plan for adoption with the department’s filing a petition for termination of parental rights unless the juvenile is being cared for by a relative and the court finds that the relative has made a long-term commitment to the child and termination of parental rights is not in the best interest of the juvenile. Ark. Code Ann. § 9-27-338(c)(4)(A) (emphasis added). Permanent custody with a relative is listed after adoption. Ark. Code Ann. § 9-27-338(c)(6). We are therefore not persuaded by Helvey’s contention that Preston’s custody of A.H. prevented the trial court from terminating his parental rights.
[ 1sHelvey further claims that the trial court gave no consideration to facts favorable to him, that the trial court had made up its mind from the beginning that he could not benefit from services given his history of drug use, and that termination of his parental rights was punishment for his past mistakes. There is, however, no evidence to support such assertions.
We cannot say that the trial court clearly erred in finding that potential harm could result if A.H. were to be returned to Helvey’s custody and that termination of parental rights was thus in ,A.H.’s best interest.
Affirmed.
Abramson and Gruber, JJ., agree.
.The report indicated that Helvey had sold methamphetamine in A.H.’s presence.
. THC stands for tetrahydrocannabinol, which is the primary ingredient in marijuana.
. A.H.’s mother, Stephanie Preston, died in September 2014.
. Arkansas Code Annotated section 9-27-365(a)(1)(A) provides that any party can file a motion for no-reunification services at any time.
. While we recognize that there is an ongoing public-policy discussion regarding when and how family, placement should or should not be given priority or preference in these cases, as of now, the legislature has not chosen to alter the statutory language cited above. As such, when the proceedings reach the termination stage, adoption is given preference over permanent custody with a relative. | [
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PER CURIAM
hln 2003, in a bifurcated proceeding, a jury found petitioner Marcus D. Evans guilty of aggravated robbery, theft of property, and being a felon in possession of a firearm. He was sentenced as a habitual offender to an aggregate sentence of 300 months’ imprisonment and ordered to pay $14,000 in restitution. The Arkansas Court of Appeals affirmed. Evans v. State, No. CR-03-944 (Ark. App. Apr. 14, 2004) (unpublished) (original docket no. CACR 03-944).
On August 16, 2016, Evans filed the pro se petition that is now before us in which he seeks reinvestment of jurisdiction in the trial court to consider a petition for writ of error coram nobis in the case. He subsequently filed a pro se motion to subpoena evidence to support his claim that he was misidentified as the perpetrator of the offenses. We find no ground stated that warrants issuance of the writ and deny the petition and the motion.
|aThe function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376.
The victim, Charles Savage, Jr., testified at Evans’s trial that on April 2, 2002, he stopped his SUV at a stop sign, and Evans entered the vehicle and put a gun to Savage’s head. After having Savage drive down the street, Evans ordered him to stop and get out ofjjthe vehicle. Evans searched the SUV while holding the gun on Savage, and he told Savage that if he moved, he would kill him. When Evans began to drive off in the vehicle, Savage ran after him, and Evans fired two shots at him, causing Savage to jump into a ditch. According to Savage, the entire episode lasted close to an hour. A police officer testified that the SUV was later recovered and had been burned.
Evans argued on direct appeal that the convictions for theft of property and aggravated robbery should be reversed because Savage was not a credible witness and there was no corroboration of his testimony. The court of appeals held that credibility was a question for the fact-finder and that the evidence presented by Savage, who identified Evans at trial as the perpetrator, was sufficient, in and of itself, to sustain the judgment.
Evans now contends that the State and the police concealed evidence that several witnesses had given “suspect identification” of him to the police and that Savage did not, in fact, identify Evans as the assailant as was falsely reported before his trial and as was testified to by the police at trial. Evans asserts that the concealment of the witnesses, none of whom are specifically identified, prevented him from questioning the witnesses at trial about the accuracy of the victim’s identification and from subpoenaing the witnesses who could have cast doubt on his guilt. He alleges that the State’s conduct constituted a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which is a ground for the writ.
A Brady violation is established when material evidence favorable to the defense is wrongfully withheld by the State. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662. In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court revisited Brady ánd declared that when the petitioner contends that material evidence was not disclosed to the defense, the ^petitioner must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Strickler, 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)). To determine whether the proposed attack on the judgment is meritorious so as to warrant the granting of permission to reinvest jurisdiction in the trial court to pursue a writ of error coram nobis, this court looks to the reasonableness of the allegations in the petition and to the existence of the probability of the truth to those claims. Isom, 2015 Ark. 225, 462 S.W.3d 662. The mere fact, however, that a petitioner alleges a Brady violation is not sufficient to provide a basis for error-coram-nobis relief. Camp v. State, 2010 Ark. 226, 364 S.W.3d 7 (per curiam). The petitioner must show that the evidence alleged to have been withheld was both material and prejudicial and of such significance that it would have prevented rendition of the judgment had it been known at the time of trial. Id. It is a petitioner’s burden to show that the writ is warranted. Scott v. State, 2009 Ark. 437, 2009 WL 3047239 (per cm riam). This court will grant permission for a petitioner to proceed with a petition for writ of error coram nobis only when it appears that the proposed attack on the judgment is meritorious. Hogue v. State, 2011 Ark. 496, 2011 WL 5589257 (per curiam). We are not required to accept the allegations in a petition for writ of error coram nobis at face value. Charland v. State, 2013 Ark. 452, 2013 WL 5968924 (per curiam).
Evans has not established a Brady violation; nor has he stated a ground within any of the other categories under which a writ of error coram nobis is proper. As stated, the function of the writ is' to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before ¡¡¡rendition of the judgment. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Evans’s allegations that the State concealed evidence are conclusory in nature. He offers no factual substantiation that any .specific, particular evidence was hidden from the defense at. the time of trial. Rather, his claims seem to be based on his belief that the victim was not credible and that there might have been other persons who could have bolstered his defense that he was actually innocent of the offenses. Such conclusory claims concerning evidence omitted from the record are deficient as a basis for coram-nobis relief and do not establish that there is a reasonable probability that the outcome of the proceeding would have been different if the State had disclosed any particular evidence to the defense. For that reason, Evans has not stated a ground for the writ. See Strickler, 527 U.S. at 280, 119 S.Ct. 1936; see also Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227. A coram-nobis proceeding is not a means to contradict any fact already adjudicated in the trial court. See Stenhouse v. State, .2016 Ark. 295, at 4, 497 S.W.3d 679 (per curiam).
Evans devotes much of his petition- to arguments concerning the physical description of the perpetrator, i.e., whether the man had dreadlocks or “low curl” hair, and his “street name.” He points to contradictory trial testimony about the physical description and the street name and alleges that the contradictions indicate deception by the State. Evans argues at length that his actual description did not match the description originally provided by Savage to the police after the robbery. Evans contends that police officers were untruthful about the description and that the State falsified police reports to deceive the defense. Again, Evans provides no proof that the State falsified records or suborned perjury or otherwise acted to hide information from the defense concerning the issues.
Un a related claim, Evans further alleges that the State withheld the names of the persons who provided his name to the State as a suspect in the investigation. As support of the claim, Evans asserts that the State informed the court at a November 3, 2002 probation-revocation hearing pertaining to prior convictions for other offenses that there was a police officer who had identified witnesses who could name Evans as “the suspect’s match,” but that the police officer, in contradiction, testified at Evans’s trial in 2003 that it was Savage who had identified Evans as the assailant. It is clear from Evans s own allegation that Evans was aware in 2002 that there were persons who had identified him as a suspect or as the perpetrator, or may have offered information about him during the police investigation, indicating that those potential witnesses were not hidden from the defense prior to the 2003 trial. Further, his allegations do not establish that there 'was evidence withheld that meets the threshold requirements of a Brady violation that was both material and prejudicial such as to have prevented rendition of the judgment had it been known at the time of trial. See Johnson v. State, 2015 Ark. 170, at 5, 460 S.W.3d 790, 794 (per curiam).
With respect to Evans’s .allegations that witnesses at trial gave false testimony and withheld exculpatory evidence when they testified and that the State was aware of the witnessed conduct, he has again provided no proof that the State knowingly utilized false testimony. Furthermore, we have held that a petitioner’s allegation that a witness gave false testimony at trial does not give rise to a showing of fundamental error that,.requires issuance of the writ. Pinder v. State, 2015 Ark. 423, at 4, 474 S.W.3d 490, 493 (per curiam).
To the extent that the allegations could be considered claims that the evidence was insufficient to sustain the judgment, issues concerning the sufficiency of the evidence or the |7credibility of witnesses are issues to be addressed at trial, and, when appropriate, on the record, on direct appeal. McArthur v. State, 2014 Ark. 367, at 7, 439 S.W.3d 681, 686 (per curiam). The issues are not a basis for coram-nobis relief. Philyaw v. State, 2014 Ark. 130, 2014 WL 1096201 (per curiam).
Petition and motion denied. | [
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RITA W. GRUBER, Judge
■ | Sabrina Hamilton appeals the October 8,2015 order of the Circuit Court of Washington County that terminated her parental rights and the parental rights of Justin Jackson to K.J. (born on March 4, 20,11), B.H.l (born on January 7, 2013), and B.H.2 (born on February 13, 2014). She challenges the circuit court’s findings that the Arkansas Department of Human Services (DHS) had proved that the children would be subject to potential harm if returned to her custody and that there were statutory grounds on which to base termination. Jackson is not a party to this appeal.
In ordering that parental rights be terminated, the trial court must make two findings by clear and convincing evidence: at least one statutory ground must exist, and termination must be in the child’s best interest. Ark. Code Ann. § 9-27—341(b)(3) (Repl. 2015). In making a “best interest” determination, the trial court must consider two factors: the 12likelihood that the child will be adopted and the potential harm to the child if custody is returned to a parent. Ark. Code Ann. § 9-27-341(b)(3)(A). Clear and convincing evidence is such a degree of proof that produces in the fact-finder a firm conviction regarding the allegation to be established. Harbin v. Ark Dep’t of Human Servs., 2014 Ark. App. 715, 451 S.W.3d 231. Our review of a termination of parental rights is de novo. Id. Our inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous; credibility determinations are left to the fact-finder. Id.
On April 1, 2014, DHS exercised an emergency 72-hour hold on 3-year-old K.J., 15-month-old B.H.l, and 2-month-old B.H.2 to protect them from harm. The hold was based on DHS’s determination that the juveniles were in imminent danger due to Hamilton’s exhibiting belligerent, aggressive, argumentative behavior; being under the influence of methamphetamine; and being the children’s only primary custodian. On April 4, 2014, DHS filed a petition for emergency custody and dependency-neglect, accompanied by the affidavit of family-services worker Evelyn Ponce setting forth the following events that occurred on April 1 when she went on an investigation and located Hamilton. Hamilton appeared nervous, her hands were “a little shaky,” and she “turn[ed] her head constantly in a jerky way when speaking.” When Ponce asked her to undergo a drug screen, she refused and became hostile. Jackson was incarcerated at the time. Ponce telephoned her supervisor and was told to take a hold on the three juveniles. Ponce instructed Hamilton to get the children ready. Hamilton began cussing, then agreed to do the drug test, but would not follow through when she was informed that Ponce would need to be present in the restroom. Hamilton again |sbegan cussing and became hostile, so Ponce telephoned the police. Hamilton admitted that her test would be positive for methamphetamine and marijuana. Later, at the DHS office, she agreed to be tested; the results were positive for methamphetamine, amphetamine, and cannabinoids. On April 4, 2014, the court entered an ex parte order for emergency custody of KJ., B.H.l, and B.H.2.
In an April 10, 2014 probable-cause order, the circuit court found probable cause that the emergency conditions necessitating the children’s removal from the parents’ custody continued and that it was contrary to their welfare to be in Hamilton’s custody due to her “unaddressed substance abuse issues.” The ’order required, in part, that she cooperate with DHS, participate in individual counseling, not use illegal drugs or alcohol, have a drug-and-alcohol assessment and follow recommendations, submit to random drug screens, obtain and maintain stable housing and employment, and follow the case plan and court orders. B.H.2 was to remain in DHS custody and in his separate foster home; KJ. was to begin play therapy; KJ. and B.H.l were to be placed with their maternal grandmother, Kathleen Standley, subject to a home study, and—while placed there—Hamilton was to have visitation with K.J. and B.H.l, supervised by Stand-ley.
In a June 9, 2014 adjudication order, the court found that the juveniles were dependent-neglected and at substantial risk of serious harm due to parental unfitness, specifically because of Hamilton’s erratic behavior and positive drug tests on April 1 and because B.H.2 had been malnourished. Hamilton was ordered to cooperate with DHS, participate in individual counseling within 30 days, not use illegal drugs or alcohol, submit to [¿drug screens at least bi-weekly, complete 12 hours of parenting classes within 2 months, obtain and maintain stable housing and employment, and follow the case plan and court orders. B.H.2 was to remain in DHS custody, and K.J. and B.H.l were provisionally placed with Grandmother Standley. The goal of the case was set as. reunification with Hamilton.
In a review order of October 8, 2014, Hamilton was found to be in partial compliance with court orders and the case plan. The juveniles had been removed from provisional custody with Standley and were to remain in DHS custody. Returning them to Hamilton’s custody was found to be contrary to their welfare because her progress was insufficient: she had not yet demonstrated stability or an ability to protect the three juveniles and keep them safe from harm. She had not maintained stable housing, had not “participated in random drug screens as requested,” had violated a court order by having unsupervised contact with her children, and had not completed inpatient drug treatment as recommended. She had maintained stable employment, had participated in counseling, and had completed the parenting classes. The goal remained reunification.
In a permanency-planning order of February 25, 2015, the court ordered that the children remain in DHS custody. The court changed the goal of the case from reunification to adoption and authorized the filing of a petition for termination of parental rights. The court found that Hamilton had not complied with all court orders and the case plan. She had recently been arrested. She had maintained stable housing and employment, had participated | Km counseling, had completed a 6-month hair-follicle test with negative results, had not “participated in all requested drug screens,” and had not “completed inpatient drug treatment.” She had attended visits and submitted to a psychological evaluation, but she had not followed recommendations of the evaluation and had not addressed her substance-abuse and mental-health issues.
A review hearing was conducted in August 2015. In its review order of August 31, 2015, the court noted that the attorney ad litem had withdrawn her petition for termination. The court noted that Jackson had recently been released from prison and found that the parents had. not made sufficient progress. The court found it appropriate to begin supervised in-home visits with Hamilton and Jackson; however, the visits would move to the DHS office “if [K.J.] has increased anxiety or negative reaction to visits being in the home.” The court found that Hamilton was not in compliance with “most” of the court orders and case plan:
[S]he has not submitted to weekly random drug screens; she has changed jobs. She has maintained housing with her mother; she completed parenting classes; she has completed counseling; she obtained a private hair follicle test, which was negative. [K.J.] has special needs & anxiety. <& has diarrhea after visits with Mom—reacting negatively to visits with Mom.
Mom- cannot meet the needs of all of her 4 children. (Newborn ... born 5/27/2015) lives with Mom.)
The goal of the case remained adoption of K.J., B.H.l, and B.H.2.
A second permanency-planning hearing was conducted in September 2015. In its September 24, 2015 order, the court found that Hamilton had not complied with court orders and the case plan in the following ways:
| ^Mother has not submitted to random . drug screens as ordered. Mother failed a drug screen for THC in 2015. This positive drug screen has been sent for confirmation, The lab reported evidence that the urine specimen had been adulterated. THC was not found. Mother has not demonstrated an ability to protect her children and keep them safe from harm. Mother has not demonstrated an ability to meet the needs of her four (4) ■children, as the three children named in this foster care case havé special needs. [K.J.] reacts negatively to visits with Mother.
Again, the goal of the case remained adoption of K.J., B.H.l, and B.H.2.
On October 8, 2015, DHS filed its petition for termination of parental rights, stating that termination was in the best interest of K.J., B.H.l, and B.H.2, and setting forth three statutory grounds for termination:
(i)(a) That the juveniles have béen adjudicated by the court to be dependent-neglected by the Court on June 5, 2014 and have continued out of the custody of the parents for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied by the parents (see A.C.A. § 9-27-841(b)(8)(B)(i)(o)),
(ii)(a) The juveniles have, lived outside the home of the parents for a period of twelve (12) months, and the parent has willfully failed to ... maintain meaningful contact with the juveniles (see A.C.A. § 9-27-341 (b)(3)(B)(ii)(a)),
(vii)(a) That other factors or issues arose subsequent to the filing of the 'original petition for dependency-neglect that demonstrate that placement of the juveniles in the custody of the parent is contrary to the juveniles’ health, safety, or welfare and that, despite the offer of appropriate family services, the parents have manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parents’ circumstances which prevent the placement of the juvenile in the custody of the parents (see A.C.A. § 9-27-341(b)(3)(B)(vii)(a)).
See Ark, Code Ann. § 9-27-341(b)(3)(B) (Repl. 2015).
In a written order of November 24, 2015, the court suspended the visitation of both parents. The court noted that it had “consistently had concerns for the well-being and emotional and physical health of [K.J.] during the life Of this case.” >■
|7The termination hearing was held on January 27, 2016, when K.J, was nearly five, B.H.1 was three, and B.H.2 was almost two. The court granted the petition to terminate at the hearing’s conclusion, finding by clear and convincing evidence that termination was in the juveniles’ best interest and that DHS had proved the three statutory grounds alleged in its petition. The court stated in its written drder that, in determining best interest, the court had specifically considered both the likelihood that the juveniles would be adopted and the potential harm to their health and safety if they were returned to their parents’ custody. Hamilton chai- lenges the finding of potential harm and the existence of the three statutory grounds..
I. Potential Harm
Hamilton first addresses the opinion of family services worker Haley Carson that Hamilton could not . meet the three juveniles’ “special needs” and that none of the three juveniles could be safely returned to her. She disputes three factors to which Carson testified: emotional harm and inability to meet the children’s special needs, drug use, and missed visitations and Hamilton’s arrest.
Hamilton contends that the children had no “special needs” for her to meet. She points to testimony by B.H.2’s pediatrician that early feeding issues after B.H.2’s birth had been resolved and to the preschool director’s testimony that B.H.l’s speech issues from the time he had entered foster care subsequently improved to the point that he was 99 percent understandable. Hamilton concedes that K.J. initially struggled emotionally with her foster-care placement and her relationship with Hamilton and that K.J. had anger outbursts, anxiety, |Rand sleeping issues after visits with her “for a long timé.” She points to testimony by K.J. and B.H.l’s foster mother that K.J.’s issues eventually lessened; that things fell apart a year into the case when the court ordered visits with Jackson; and that K.J, and B.H.l experienced regression issues after their only in-home visit with Jackson present—necessitating an emergency call to the therapist. Hamilton asserts that K.J.’s “special need” was clearly agitated by contact with Jackson rather than Hamilton and that DHS’s approach, which simply ended Hamilton’s visits without addressing KJ.’s ■ need through therapeutic sessions, was counterproductive to reunification.
Hamilton also asserts that the record does not indicate that she used drugs since at least August 2014,17 months before the termination hearing. She points to her challenge of the positive marijuana test results, found to have been adulterated; to negative results of her two hair-follicle tests—one ordered by DHS and a private test that she obtained; to her progress in housing, employment, parenting, and counseling; and to her testimony that she never “flat-out refused” to take drug tests and could not risk losing her job in an effort to comply with test times.
Finally, Hamilton disagrees that her missed visitations and arrest constituted a factor of potential harm and risk to the juveniles. Acknowledging Carson’s testimony of pine missed visits between November 2015 and January 2016, Hamilton points to her own testimony that she had undergone surgery and that she and the baby had been sick for several months before the January hearing. Regarding her arrest, she notes her testimony, that she was detained for failure to appear on an underlying charge of no seatbelt and failure to register her vehicle, that |flshe was detained for only two hours, that her youngest child was with her at the time, and that she took care of the arrest issue after arranging for her mother to provide childcare.
DHS responds that the finding of potential harm is not clearly erroneous for the following reasons. First, Hamilton failed to comply with court orders by not undergoing drug screens as scheduled. She claimed that she could not come in for testing because of work, but only once took advantage of Carson’s offer to reschedule. Hamilton was a no-show for about 70 percent of her drug screens—with ■ 100 percent missed in the 5 months preceding the January 2016 termination hearing—and her second hair-follicle test—the private one— had been in August 2015. Second, Hamilton never obtained stable housing; rather, she chose to live with her mother—where provisional placement had failed. Third, the testimony of KJ.’s therapist, Tammy Pearson; psychiatric nurse practitioner Jennifer Penny; and Maria Johnson, K.J. and B.H.l’s foster mother of 16 months, specifically showed a lack of bond between Hamilton and K. J. ■
DHS notes testimony pertinent to the finding of potential harm. Pearson stated that K.J. rarely mentioned her mother but that when Pearson would bring up the subject, “K.J. will almost immediately become very flat or have a frown on her face. She’ll rub between her eyes as if she has a headache ... very frequently grab her stomach and say she has a stomachache.” Penny testified that during discussions about Hamilton, K.J. would have physical complaints such as stomachache, would appear to be fearful and less secure—looking around the room and darting her eyes. Johnson testified to the following:
[D]uring the life of this case, I did have concerns for K.J. surrounding her visits with her parents or with her mom. Those concerns were anxiety issues, which at the time |inI didn’t realize were—that it was anxiety, the stomachaches, and became aware of an increase of attention-getting things. She said a lot of—-which were strange to me, “My bottom hurts.” She would come up with these crazy different ideas of attention-getting things, wanting me, you know, just wanting me to nurture her, hold her, not wanting to go to sleep, and especially after visits. There wasn’t ever a lot of discussion before visits. She’s never really asked, she’s never cried ... asked for [Hamilton], wanted to go home, but after a visit, when I would take note, there didn’t seem to be a big display, but then afterward or following, ... much increased ... anxiety, outburst behavior, tantrums, sleep issues.
In determining potential harm, which is forward-looking, the court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent’s care and custody. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. There is no requirement that every factor be established by clear and convincing evidence; after consideration of all factors, the evidence must be clear and convincing •that termination is in the best interest of the child. Harbin, 2014 Ark. App. 715, at 3, 451 S.W.3d at 233. Parental rights should not be allowed to continue to the detriment of the child’s welfare and best interest. See J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). The appellate court gives a high degree of deference to the trial court, which is in a far superior position to observe the parties before it. Taffner v. Ark. Dep’t of Human Servs., 2016 Ark. 231, at 6, 493 S.W.3d 319, 324.
The circuit court noted in its order of termination that the juveniles had been in foster care for 668 days; had been traumatized when they were initially removed from their home and again, as to K.J. and B.H.l when they were removed from the provisional foster home of their grandmother due to a roach infestation; and that all three juveniles had made “huge progress” in foster care. The court further found,
|uthat Mother cannot meet the special needs of all four (4) of her children and that although mother is adequately caring for her new baby, ... that Mother cannot meet the needs of her other three (3) children and that the issues which caused these three (3) children to come into -foster care have not been remedied. Throughout this case, the Mother has never once been in full compliance with the case plan and court orders. The children need stability, structure, and permanency; Mother cannot meet these needs. ¡
We hold that the circuit court did not clearly err in finding that K.J., B.H.2, and B.H.1 would be subject to potential harm if returned to Hamilton’s custody.
II. Statutory Grounds
We note that only one statutory ground in section 9—27—341(b) (3) (B) need be proved to support termination. Sims v. Ark. Dep’t of Human Servs., 2015 Ark. App. 137, at 7, 2015 WL 831178. We affirm under the first ground found by the circuit court, the failure to remedy conditions that caused removal.
Hamilton argues that the initial cause of removal was severe drug use, but there was “no evidence” of a remaining drug issue and DHS felt that she could keep her youngest child in the home. We have previously discussed her nearly identical arguments in the potential-harm section of our opinion. We also note that, in determining that Hamilton failed to remedy conditions which caused removal, the circuit court found that she was not in full compliance with the case plan and court orders:
Hamilton still has not submitted to random weekly drug screens (having missed ALL her drug screens (19) since the last hearing). The Court also finds that [she] has missed nine (9) of her scheduled visits since September of 2015. The Court finds that the root cause of this case still has not been remedied by the Mother.
We hold that the circuit court did not clearly err in terminating Hamilton’s parental rights under the failure-to-remedy ground.
| iaWere we to address the court’s finding of the subsequent-factors ground, we would hold that the circuit court did not clearly err. See Cotton v. Ark. Dep’t of Human Servs., 2012 Ark. App. 455, at 11, 422 S.W.3d 130, 138 (holding that a lack of compliance with the case plan and court orders supported termination under this ground).
Affirmed.
Whiteaker and Hoofman, JJ., agree.
. In September 2014, K.J. and B.H.l. were removed from Standley’s home because her home was "infested with roaches” and she was allowing Hamilton to have unsupervised visits with the children—a violation of court orders. | [
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PAUL E. DANIELSON, Justice.
| ] Appellant Ronald A. Britton appeals an order of the Faulkner County Circuit Court convicting him of murder in the first degree and sentencing him to life imprisonment without parole. He argues that the circuit court erred by (1) failing to order a new competency hearing at the time of trial, (2) failing to grant a mistrial after Britton had an episode in front of the jury, and (3) requiring Britton to wear a stun belt, shackles, and handcuffs in order to remain in the courtroom after his outburst. We find no error and affirm.
Because Britton does not challenge the sufficiency of the evidence against him, a brief recitation of the facts is all that is necessary. See, e.g., Fritts v. State, 2013 Ark. 505, 431 S.W.3d 227. On August 14, 2010, Michelle Asher was found dead outside her home in Greenbrier, Arkansas, as a result of blunt force and sharp-force injuries. Britton became a person of interest and a BOLO (be on the lookout) was issued for him. The authorities |alocated him in El Paso, Arkansas.
The State formally charged Britton for the capital murder of Michelle Asher on August 16, 2010, and a jury trial commenced on February 19, 2013. Britton was found guilty of capital murder by a Faulkner County jury. The State waived the death penalty and, therefore, Britton was sentenced to life imprisonment without the possibility of parole. It is from that conviction and sentence that Britton now appeals.
Britton first argues that although he nor his counsel requested a competency hearing at the time of trial, the circuit court erred by not ordering a hearing sua sponte because reasonable doubt existed as to Britton’s competence to stand trial. The State avers that the circuit court was not required to order a competency hearing because Britton had a factual and legal understanding of the proceedings against him, two prior medical opinions had found Britton competent to stand trial, and Brit- ton was able to consult with defense counsel during the trial with a reasonable degree of rational understanding. After a review of the record, we simply cannot say that the circuit court erred.
The conviction of an accused person while he is legally incompetent violates due process. See Jacobs v. State, 294 Ark. 551, 744 S.W.2d 728 (1988) (citing Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). See also Ark.Code Ann. § 5-2-302 (Repl.2013). In order to be competent to stand trial, a defendant must have the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense. See Jacobs, supra (citing Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Speedy v. Wyrick, 702 F.2d 723 (8th Cir.1983)). A trial court should sua sponte order a competency hearing when | .-¡there is a reasonable doubt about the defendant’s competency to stand trial. See Jacobs, supra (citing Campbell v. Lockhart, 789 F.2d 644 (8th Cir.1986)).
The Eighth Circuit Court of Appeals has explained the test for determining whether a trial court should sua sponte order a competency hearing:
Under the rule of Pate v. Robinson, ... a due process evidentiary hearing is constitutionally compelled at any time that there is “substantial evidence” that the defendant may be mentally incompetent to stand trial. “Substantial evidence” is a term of art. “Evidence” encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence 'is “substantial” if it raises a reasonable doubt about the defendant’s competency to stand trial. Once there is such evidence from any source, there is a doubt that cannot be dispelled by resort to conflicting evidence. The function of the trial court in applying Pate’s substantial evidence test is not to determine the ultimate issue: Is the defendant competent to stand trial? Its sole function is to decide whether there is any evidence which, assuming its truth, raises a reasonable doubt about the defendant’s competency. At any time that such evidence appears, the trial court sua sponte must order an evidentiary hearing on the competency issue.
Although the Supreme Court has not prescribed exact standards as to the quantum or nature of the evidence necessary to require a competency hearing, the Court has indicated that consideration of evidence relating to “a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial” is appropriate.
Speedy, 702 F.2d at 725-26 (citations omitted).
In the instant case, both the State’s expert and Britton’s expert agreed prior to trial that although Britton did have a mental disease, bipolar disorder, he had no mental defect and was fit to stand trial. Based on the fact that both experts agreed, the defense waived a hearing regarding Britton’s fitness to proceed on October 24, 2011, but reserved the right to later litigate that issue at trial. The defense never requested that Britton be reevaluated. It is now UBrittoris argument on appeal that the circuit court should have ordered a competency hearing sua sponte based on his behavior at the time of trial in February 2013.
Not one individual expressed a concern about Britton’s competency at the time of trial — not his counsel, not an expert, and none of the lay witnesses. Therefore, the only “evidence” before the court regarding Britton’s mental competence was his own behavior in his interactions with the court and in the courtroom. On the first day of trial, the circuit judge spoke with Britton before calling court to order. The court had been warned that Britton had been occasionally disruptive at prior proceedings, and the judge asked Britton to conduct himself in a proper manner during trial. Britton responded by saying, “My word is my bond” and “I will do my best and I will give you forewarning if the temperature rises. I will not disrupt your courtroom today.” The circuit judge again spoke with Britton before trial on the second day to remind him to maintain good behavior and not to disrupt the proceedings. Britton seemed evasive when being asked how he was doing; however, later in the day, the judge spoke with him again about the stun belt he was wearing and reiterated that he needed to continue to behave himself. When Britton was asked if that was fair and if his answer was yes, Britton responded, “Same as it ever was, yes, sir. Fair is fair.”
Later in the second day of trial, the record indicates that following a jailhouse informant’s testimony for the State, Brit-ton “caused a disturbance in the courtroom that required all bailiffs to subdue him,” and he was removed from the premises. Britton was allowed to come back into the courtroom for the remainder of the proceedings; however, he was required to wear handcuffs and shackles. The medical examiner testified for the State that | Bsame day. During the medical examiner’s testimony, Britton’s counsel asked for a short recess because Britton was asking to leave and indicating that he was going to have another episode. In chambers, the circuit judge addressed Britton. Britton indicated that it was “just the emotions” and that he was “fine to proceed.” After requesting his glasses and that he be allowed to look at the medical examiner and the screen in the courtroom during his testimony, Britton acknowledged that, as far as his behavior was concerned, that was his “last chance today.”
Finally, Britton went against the advice of his attorneys and chose to testify in his own defense. Before calling the jury into the courtroom, defense counsel and the circuit court wanted to make a record that Britton understood that testifying was against the advice of his attorneys and that he understood he had the right to remain silent. The colloquy between the court and Britton at that time undeniably included some incoherent rambling by Britton. However, Britton’s own expert, Dr. Robert Forrest, testified that he had met with Britton on February 4, 2013, about two weeks prior to trial, because it was Dr. Forrest’s understanding that Britton had become more erratic and agitated in his behavior. Dr. Forrest stated that although Britton was clearly more impaired at that February meeting than he had been at a prior meeting, he was not as bad as he had been at their very first meeting. Dr. Forrest indicated that “it appeared that he was improving” and even though it took a lot of effort, “[Britton] was able to redirect and was able to answer the questions that [Dr. Forrest] asked.”
Additionally, Britton took the stand moments after his rambling colloquy with the | ^circuit judge and was able to testify very coherently and answer the attorneys in a manner relevant to the questions posed. Britton asserted his innocence, claimed he had not seen Asher during the two days prior to her murder, and claimed that although he had been dropped off at her trailer the morning of the murder, Asher had not been home and he simply left. During his testimony, he declared, “I’m here today for the charge of Capital Murder. Of Michelle Nicole Asher-” He also stated, “I was able to understand the questions that my attorney was asking— for the better part, yes, sir. I mean — but I — but we can stretch questions all day long.” Finally, Britton testified, “As to whether I’m telling the jury that I’m able to conform my conduct to meet the requirements of the law, everybody is, yes, sir. I am, yes, sir. I am completely capable. I believe that. I understand the difference between right and wrong, for the most part, yes, sir. I mean, who’s to say what’s right and wrong? It depends on what you’re doing. State’s 47 [the photograph of Michelle Asher’s body], it’s wrong. Nobody has a right to take a life.” Taking all of the above into consideration, the circuit court was not unreasonable in believing that Britton had the capacity to understand the nature and object of the proceedings against him despite exhibiting some bizarre behavior.
There was also no evidence before the court that Britton was unable to consult with counsel or assist in preparing his defense. Although he did not always take the advice of his attorneys, as evidenced by his decision to testify, that is not evidence that he was incompetent. While his behavior was self-destructive at times, such as his outburst in the courtroom, there was no evidence that such behavior was out of his control. None of the defense attorneys representing Britton expressed to the court at the time of trial that they could not work with 17or communicate with Britton. Furthermore, Brit-ton’s expert was specifically questioned at trial about Britton’s behavior during the trial and his outburst. Defense counsel asked Dr. Forrest if he had any “clinical comment” on Britton’s outburst. Dr. Forrest stated that he had observed Britton’s behavior in court and that he couldn’t provide a rationale for why Britton had that episode. He testified that individuals with similar illnesses are significantly more irritable, easily agitated, and aggressive. We conclude that being more irritable, agitated, and aggressive is not the equivalent of being incompetent to stand trial.
The main cases relied on by Britton, in which circuit courts were found at fault for failing to act on a possible competency issue, are distinguishable from the instant case. In the case of Pate, 383 U.S. 375, 86 S.Ct. 836 the defendant’s counsel insisted throughout the proceedings that the defendant’s present sanity was very much in issue, four witnesses expressed a lay opinion that the defendant was insane, and even the prosecutor suggested to the court that a doctor’s testimony should have been sought to provide an opinion as to the defendant’s sanity. It is clear that none of those circumstances existed in the instant case.
In Drope, 420 U.S. 162, 95 S.Ct. 896, the defense counsel moved for a continuance prior to trial because he asserted that the defendant was not a person of sound mind and should have further psychiatric examination. Additionally, the defendant’s wife, who had been the victim in the case, testified at trial that she believed he was sick and needed psychiatric care. See id. During the course of his trial, the defendant shot himself and failed to appear for court. See id. His attempted suicide alone illustrated a degree of mental instability at the time of trial and also deprived the court of the opportunity to further observe his demeanor. See id. Again, | sthis ease is not analogous to the one currently before our court.
The Eighth Circuit, in Speedy, 702 F.2d 723, remanded the case for an evidentiary hearing to consider whether a circuit court erred in failing to sua sponte conduct a competency hearing where the defendant’s psychiatrist had opined during trial that the defendant was desperately sick, suicidal, and should be immediately hospitalized and that there had been other evidence of the defendant’s irrational and violent behavior. Here, Britton’s expert did not testify as to any incompetency at the time of trial. Dr. Forrest opined only that Britton lacked the capacity to conform his behavior to the requirements of the law at the time of the crime. While Britton asserts, both in his brief and through his counsel at oral argument, that certain witnesses testified about his abnormal behavior around the time of the crime, no expert, lay witness, or attorney opined that Britton’s illness was causing him to be insane, suicidal, or incompetent in any way during the course of the trial.
Finally, Britton claims that his case is factually similar to the Eighth Circuit case of Reynolds v. Norris, 86 F.3d 796 (8th Cir.1996), in which the court concluded that the trial court erred by failing to grant a third competency hearing at the time of trial although two competency hearings had already been held prior to trial. However, he is mistaken. First, in Reynolds, defense counsel expressed concern to the court at the time of trial that the defendant was not competent to stand trial and requested a third hearing. See id. Again, Britton’s counsel did not express any concern about his competency to the circuit court at the time of trial even though counsel had specifically reserved the right to do so. Second, Reynolds’s testimony was that the Defense Department was involved in his case and he cited the Gulf InWar, among other irrational things, as the reason for his being on trial. See id. Britton was able to cite exactly why he was on trial during his testimony. Finally, an expert, Dr. Moneypenny, specifically testified in Reynolds that he did not believe that Reynolds was fit and ready for trial and that he believed Reynolds could not provide substantive assistance. See id. Britton’s expert did not express those concerns, even when questioned about Britton’s behavior at trial and the outburst that he had in front of the jury. .
In conclusion, this court cannot say that there was sufficient evidence before the circuit court to cause a reasonable doubt about Britton’s capacity to understand the nature and object of the proceedings against him, to consult with his counsel, and to assist in preparing his defense. Therefore, the circuit court did not err by failing to stop trial and conduct a competency hearing on its own volition.
Britton additionally argues that after his outburst in the courtroom, during which he had to be tackled, restrained, and removed from the premises, the circuit court should have granted his motion for a mistrial. The State avers that this argument is without merit and that the circuit court did not abuse its wide discretion in denying the motion. We agree with the State.
This court has held that a mistrial is an extreme and drastic remedy that will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected. See Harrison v. State, 371 Ark. 652, 269 S.W.3d 321 (2007). A circuit court has wide discretion in granting or denying a mistrial motion, and, absent an abuse of that Indiscretion, the circuit court’s decision will not be disturbed on appeal. See id.
First, Britton has failed to demonstrate that his outburst was so prejudicial that justice could not be served by continuing the trial or that the fundamental fairness of the trial was affected. Furthermore, this court has held that where an appellant was responsible for an outburst in front of the jury, the circuit court did not abuse its discretion by failing to reward appellant’s misbehavior with a mistrial. See, e.g., Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992) (in which the defendant exposed himself to the jury and requested a mistrial). A defendant cannot be allowed to abort a trial and frustrate the process of justice by his own acts. See id. (citing Terry v. State, 303 Ark. 270, 796 S.W.2d 332 (1990)). Additionally, we have repeatedly held under the invited-error rule, that one who is responsible for error cannot be heard to complain of that for which he was responsible. See id. Finally, the circuit court here provided an admonishment to the jury and explained that Britton’s conduct was not to be considered in determining his guilt or innocence. For these reasons, we cannot say that the circuit court abused its discretion by denying the motion for a mistrial.
Britton’s final argument is that the circuit court erred by requiring him to be restrained for the remainder of the trial after his outburst in the courtroom because it violated his Fourteenth Amendment right to a fair trial as well as his Sixth Amendment right to adequately participate in his defense. We again agree with the State that this argument is without merit.
Britton failed to properly develop a convincing argument that the restraints prevented him from participating in his defense. He makes a conclusory statement in his brief that he was “hampered by his stun belt, shackles, and handcuffs.” Neither conclusory statements, |nnor allegations without factual substantiation are sufficient. This court will not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. See, e.g., Green v. State, 2012 Ark. 347, 423 S.W.3d 62.
The United States Supreme Court has considered the issue of whether the use of restraints in some cases violates the Federal Constitution. In Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), abrogated on other grounds by Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007), the Court concluded that “the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.” Deck, 544 U.S. at 629,125 S.Ct. 2007. The Court in Deck recognized the “need to restrain dangerous defendants to prevent courtroom attacks [and] ... to give trial courts latitude in making individualized security determinations.” Id. at 632, 125 S.Ct. 2007.
Our court has held that a circuit court may take such steps as are reasonably necessary to maintain order in the courtroom, especially in situations in which the criminal defendant has engaged in disruptive behavior, attempted escape, or is charged with violent felonies. See Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002). In fact, this court has concluded that restraints are not per se prejudicial, and that a defendant must affirmatively demonstrate prejudice. See id. We will not presume prejudice when there is nothing in the record to indicate what impression may have been made on the jurors or where the appellant did not offer any proof of prejudice. See id.
112In Williams, this court determined that the trial court did not abuse its discre tion in permitting the defendant to be shackled in the presence of the jury where he had a long criminal past; he was currently on trial for capital murder, aggravated robbery, theft, and escape; and he had threatened and taunted victims at a previous trial, which resulted in an altercation that required officers to carry the defendant from the courtroom. The court added that “[i]t would be difficult to imagine a criminal defendant that would better fit the definition of a high-risk defendant” and concluded that, in this situation, the restraints were necessary to maintain order in the courtroom. Id. at 747-48, 67 S.W.3d at 560.
In the instant case, Britton was already wearing a stun belt underneath his clothing during the second day of trial, the same day he caused the disruption. The circuit court had gone so far as to remind him of its presence that morning before trial began and what would happen should he not control himself. Even with that safety measure in place, Britton attempted to verbally and physically attack a witness who was leaving the stand. It took multiple courtroom deputies to restrain him and remove him from the courtroom after the outburst. It is clear from these facts that the decision to require additional restraints was reasonably necessary to maintain order for the remainder of the trial. As previously noted, the circuit court admonished the jury after the incident that Britton still sat before them with the presumption of innocence and that his conduct could not be considered in determining if he was guilty or not of the current charges.
To conclude, Britton’s own conduct brought about the need for the restraints, and he was not denied his right to a fair trial. We cannot say that the circuit court abused its | ^discretion in determining that the restraints were reasonably necessary to maintain order and security in the courtroom.
Arkansas Supreme Court Rule Jp-3(i)
In the instant case, Britton received a sentence of life in prison without parole. Pursuant to Arkansas Supreme Court Rule 4 — 3(i) (2013), the record has been reviewed for all objections, motions, and requests that were decided adversely to Britton, and no prejudicial error has been found.
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MoHaney, J.
Appellee district was' organized and created by order of the county court of Pulaski county under the authority of act 126 of 1923, p. 84, which was amendatory to act 660 of 1921, entitled, “An Act to provide for the formation of Improvement Districts adjacent to cities having- a population exceeding ten thousand inhabitants. ” Section 4 of said act 126 provides that “Such districts may be organized for the purpose of grading, draining, paving, curbing or guttering of streets and highways” and for many other enumerated purposes. It lies adjacent to the city of Little Rock, to the west, but is wholly outside said city. Acting-under the authority conferred, appellee constructed a street or highway from the south side of Fair Park to a connection with U. ,S. highways 67 and 70. To enable it to do this work, it assessed benefits ag’ainst the adjacent property and pledged same to secure bonds in the sum of $233,000 which were issued and sold bearing date of February 1, 1927. Thereafter, the sum of $27,000 of these bonds was paid by the state; the sum of $205,000 was refunded by the state; and one bond of $1,000 was never presented for refunding. The net result was that the state has either paid or will pay all the bonds of this district. A tax on the assessed benefits was levied and collected on .the property in the district prior to the time the state began to pay the principal and interest maturities of these bonds, and the district now has on hands of the tax funds so collected about $5,000.
Appellant brought this action against the district and its commissioners to recover the sum now on hand to be used by it to assist in retiring the bonds and interest which have now been refunded as the obligations of the state. Appellees ’ answer was a general denial of the allegations of the complaint and amendment thereto, and the cause was submitted thereon, together with the testimony of three witnesses, and at the conclusion of the testimony the court entered a decree dismissing’ the complaint for want of equity and dissolving the temporary restraining order theretofore issued. This appeal is from that decree.
The roadway constructed by appellees is not "a part of the state highway system. No part of it has ever been taken over as such. The state did assume and agree to pay its bonded indebtedness, whether rightfully or wrongfully. In the concluding paragraph of appellant’s brief this statement is made: “It is the contention of appellant that the bonds were wrongfully assumed, and though the State may be precluded from establishing this fact by reason of a decree entered in a suit in chancery court filed iby the prosecuting attorney against the district and others, from which decree there was no appeal, yet the district should not be permitted to obtain the benefits of the Martineau Act (referring to act 11 of 1927) and still retain the funds which it has on hand.” The decree referred to was rendered in 1932, in a suit wherein the state was plaintiff and appellee district and a number of other similar districts were defendants. The issue was whether the appellee and other districts were “such'road improvement districts as was contemplated by the provisions of act 11 of 1927, act 65 of 1929 page 264; and other acts amendatory thereof and cumulative thereto whose bonds should be paid by plaintiff.” (Quotation from complaint in that case.) The decree as to this appellee district reads as follows: “Wherefore, it is by the court considered, adjudged and decreed that all the bonds of Little Rock-Highland Paving District No. 24 of Pulaski County now outstanding are valid and intended to be and were included in the bonds to be paid by the State of Arkansas pursuant to act No. 11 of the -Acts of the General Assembly of Arkansas of 1927, and that they were sold for a bona fide consideration and delivered prior to the adoption of said act No. 11 of 1927 under a contract that was not cancelable and in which there was no repurchase agreement, and that plaintiff take nothing on the complaint for the recovery of moneys already paid and that the temporary injunction heretofore issued in this action restraining refunding of the bonds of said district and the further payment thereof by the -State Treasurer and Auditor be and is dissolved, and that plaintiff’s complaint be dismissed for want of equityPlaintiff excepts to said decree and prays and is granted an appeal to the (Supreme Court of the State of Arkansas. ’ ’
The findings of fact on which that decree was based were that appellee district “was such a road improvement district as was contemplated by said act and whose bonds should be .paid by plaintiff.” This decree is res adjudicata of the question of whether appellee district is a road improvement district within the meaning of act 11 of 1927 and later acts amendatory or supplemental thereto, and appellant, the state, is bound thereby in this as well as in the former case, as the suit is between the same parties.
Section 3 of act 11 of 1927 reads in part as follows: “The commission shall, as soon as possible ascertain the amount of the outstanding valid bonds issued by road improvement districts in this state, the dates of the maturities thereof, and the annual interest d,ue thereon, and it shall be the duty of the circuit clerk of each county to furnish the commission with such information. The commission shall each year, beginning with the year 1927, allot to each road district in the state now having outstanding bond issues an amount equal to its bonds maturing during the year, together with the interest payable by such districts during the year. . . .
( Í
“All roads of the road districts referred to in this section are hereby taken over by the state, but only such portions of said roads which are now or may hereafter be embraced in the state highway system shall be maintained by the state.”
Under this section of said act all roads of all road improvement districts were taken over for the purpose of paying their indebtedness to relieve the adjacent lands of the impossible burdens placed upon them. If they were or became a part of the state highway system, the state undertook to maintain them, but if they were not, then the state did not undertake to maintain them. The question at once arose as to what disposition should be made of funds on hand which had been collected in road improvement districts from taxes on betterments. The legislature, at the same session, enacted act '112 of 1927. Section 1 thereof provided a method of liquidating the unbonded indebtedness of the districts. Section 2, 3 and 4 relate to funds of such districts whose roads are wholly in the state highway system. Section 5 deals with the funds of such districts whose roads are not wholly included in the state highway system, and provides that the commissioners of such districts, that is, districts a part of whose roads are in the state highway system, and a part out, may, with the approval of the county court or the highway commission, “use the funds and revenues of the district for the repair and maintenance and completion of construction of the roads not included in the state highway system, and for other lawful expenses; and provided further, that in districts in which the mileage of the roads constructed and included in the state highway system, and on which the state has done maintenance work, is more than the mileag’e of the roads constructed and not so included and previously maintained by the district, one-half the cash on hand on January 1, 1927, . . . shall be used as provided in § 4 of this act . . .” There is no requirement in the statutes that districts whose roads lie wholly without the state system and whose 'bonds have been taken over shall turn over the funds on hand to the highway commission. The implication from § 5 of act 112 is that they shall not be required to do so.
We do not, therefore, feel that we would be justified in requiring them to do so under the principles of equity, as appellant suggests, as to do so would be contrary to the apparent intention of the Legislature as expressed in said act 112. If the roads of a district are taken over, then the funds on hand shall also be turned over to the state. If a part only of the roads is taken over, then only a part of the funds are taken on a mileage basis. , If no part of the district’s roads are taken over, then the state takes no part of the funds on hand.
The decree of the trial court is correct, and it is accordingly affirmed. | [
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(xrieein .Smith, C. J.
The question is, May one having possibility of reverter, whose right springs from a grantee’s act in discontinuing, for railway purposes, the right-of-way deeded by the reversioner’s ancestor, lawfully lay claim to a depot, outhouses, and stock pens placed upon such right-of-way .by the railway 'Company!
In 1886 those through whom appellees claim conveyed to appellants ’ predecessor a strip of land 100 feet wide, to be used “. . , for the construction, operation, maintenance, and use of a railroad over and through [the lands in question”]. There was this provision: ‘ ‘ To have and to hold the same unto the said Fayetteville & Little Bock Bailway Company, its successors, administrators and assigns as long as the same shall be required and used for railway purposes.”
In 1911 a depot was built at Durham at a cost of approximately $1,750. Certain outhouses were erected; and stock pens were made a part of the railway company’s facilities for loading.
Because the branch line had been operated during recent years at financial loss, permission to discontinue-its use was procured from the Interstate Commerce 'Commission. Acting under authority so conferred, the railway company (August 7, 1937) began .at Pettigrew the work of divesting the right-of-way of worth-while personal property. 'Coincident with evidence of the company’s purpose to dismantle the depot and other struc tures, appellees wrote appellants ’ superintendent informing him that- the deed contained a conditional grant; that with abandonment of the railway the easement, “. . . with all appurtenances thereunto belonging, including the depot and all other fixtures that have become a part of said realty reverted.” The railway company was requested “. . . not to remove, convey, or disturb any of the buildings.”
The request was ignored. Thereupon suit was filed for $2,000 damages, The jury’s verdict was for $900, upon which the court rendered judgment. This appeal is from such judgment.
We think the court misconstrued the law applicable to the facts. It should have instructed a verdict for appellants.
The complaint alleges that “. . . plaintiff’s predecessors in title conveyed to the said railway company the right-of-way for the construction, operation, maintenance, and use of a railroad.” The grantors, in executing their deed to the Fayetteville & Little Bock Bail-way Company 51 years before the present controversy arose, must have known that in certain circumstances depots and other buildings would be essential to ordinary operation of the railway. There is nothing in the deed indicating an intent upon the part of the grantors to exclude from the demised premises any structures or construction required by the railway; and, conversely, nothing appears evidencing a purpose by the grantors to retain, as a part of the realty, anything placed thereon for railway purposes.
A review of the authorities reveals that various terms are used' to identify the interest or estate acquired by a railway company by virtue of a conveyance similar to the one in question. Where the conveying language shows a purpose to authorize construction of a railway with possibility of reverter of the land to the servient estate, it has been held that such' instrument creates a determinable fee and transfers the whole title from the grantor so long as the property is used for railway purposes. But the general rule seems to be that if the deed purports to convey only a right-of-way, it does not convey the land itself, but the fee remains in the grantor, and the railway company acquires a mere easement in perpetuity for railway purposes. Such easement is an interest which is absolute for the purposes for which the land is conveyed so long as it is used for those purposes, .even though the language of the deed may fall short of conveying the fee, as in the case at bar.
In Graham v. St. Louis, Iron Mountain & Southern Railway Company, 69 Ark. 562, 65 S. W. 1048, 66 S. W. 344, a deed to the railway company conveyed a right-of-way and depot grounds “. . . so long as said lands are used for the purposes of a railroad and no longer. ’ ’ Although possession was taken and railway operations were engaged in, a part of the land, as shown by the deed, was to be used for “Y” purposes. The deed was executed in 1882. In 1897 Graham undertook to repossess that part of the land intended for a “ Y”, but upon which no such construction had been undertaken. In the meantime — during a period of 15 years — twelve acres of the land intended for the “Y” had remained in Graham’s enclosure. The railway company brought ejectment. Graham defended on'the ground that conditions had been broken through failure of the grantee to subject the property to the use intended. The court’s opinion was written by Mr. Justice Riddick, who said:
“Conditions subsequent are not favored, and must be strictly construed, and we see nothing in this deed that required that the whole tract should be at once used for railroad purposes.” On rehearing, in an opinion written by Mr. Justice Wood, it was said:
“Giving force and meaning to every word and clause in the deed, the most reasonable construction is that deeds of the kind under consideration convey a perpetual easement in the land, or an easement in the nature of a fee. . .”
The Late Judge Trieber, in Hubbard v. Missouri P. R. Co. (D. C. Ark.) 288 Fed. 945, said: “The conclusion reached is that the rails in controversy never became a part of the realty, therefore did not pass by the deed of conveyance of the land to the plaintiff, and the defendant had the right to remove them. ”
In Newgass v. Railway Company, 54 Ark. 140, 15 S. W. 188, it was said: “It is, therefore, not necessary to presume that [when the railway company built its road] it intended either to dedicate it to the use of the land, or to commit another trespass to the damage of the land; but it is more reasonable to presume that it intended to retain the railroad for use as such, and lawfulfy to acquire the land upon w7hich it rested. The railroad was not built to improve the ground or to enhance its ordinary utility, but to be used as part of an easement for public purposes, entirely independent of the ordinary uses of the ground. . .”
A more recent case is that of Anderson v. Hobbs Tie & Timber Company, 196 Ark. 805, 120 S. W. 2d 158. A paragraph from the opinion is: “The bridge was on a right-of-way, which had been acquired by appellee’s ' predecessor of title, at least under an easement that continued until all of the property constituting the line of railway had been removed or a reasonable time given for that purpose.”
• Cases upholding the position here taken, or persuasive of the principle invoked, are shown in the margin.
Appellees quote Tiffany on Real Property, vol. 1, p. 192, § 81, where it is said that “when land is granted for certain purposes, as for a' schoolhouse, church, public building, or the like, and it is evidently the grantor’s intention that it shall be used for such purposes only, and that, on the cessation of such use, the estate shall end, without any reentry by the grantor, an estate of the kind now under consideration [determinable fee] is created.” Other authorities to which attention is called in appellees’ brief are printed in the footnote.
Appellees rely entirely upon the well-established rule that where land is conveyed upon the express condition that it shall be used for a stated purpose, and for no other purpose, and there is a failure to perform or abide the conditions, title reverts to the grantor because of a violation of the conditions. In support of this rule we are cited to St. Louis Southwestern Ry. Co. v. Curtis, 113 Ark. 92, 167 S. W. 489, a headnote of which is: “A deed of land to a railroad company for the erection and maintenance of a section house thereon, providing that when it should cease to be used as such the title to the land should revert to and vest in the grantor, was not an absolute conveyance, but expressed a condition subsequent, upon the happening of which the title reverted to and vested in the grantor. ” The opinion, however, as distinguished somewhat from the headnote, says: “The qualified or base fee which the appellant [railway company] had under the deed terminated upon the breach of the condition subsequent. The evidence shows that the condition subsequent was not complied with, and that the estate reverted1 before appellant moved the house from the land. Upon a breach of the condition subsequent, ipso facto the title reverted and was vested in the appellee, and it was not necessary for the appellee to take possession of the land in order to effect a forfeiture for failure on the part of the appellant to comply with the condition. Moore v. Sharp, 91 Ark. 407, 121 S. W. 341, 23 L. R. A., N. S. 937.”
The opinion goes on to say that the clearly expressed intention of the parties as gathered from the language of the deed was that the building should be erected on the land and used as a section house, “and this being the very purpose of the deed, the trial court was correct in holding as a matter of law, under the language of the instrument, that the section house was a fixture.”
We think the decision in the Curtis Case turned on the language of the deed. It was: “This deed is made for the purpose of erecting and maintaining a section house on the above described land by the grantee herein, and when it shall cease to be used as such, the title to the land shall revert to and vest in said S. H. Curtis.”
The expression in the deed, “. . . when it shall cease to be used as such . . . ” had reference to the section house. Since the very purpose of the transaction was to build a section house, the house became a fixture.
No such intent is shown or intimated ih the deed executed by appellees’ predecessors in the instant case. To grasp the purpose of the parties, as reflected by their writing, it is necessary to place one’s self in the position of John S. and Mary Ann White when they executed the conveyance in 1886. Clearly, they contemplated use of a 100-foot strip of land for railway purposes, including those incidental uses which efficient operation of the line might require; and they expected — perhaps very remotely' — -to enjoy revestiture if the project should not be consummated, or if the road should be constructed and then discontinued. If appellees are entitled to the depot and other building's, they are equally entitled'to the cross-ties and steel rails. We cannot believe they had any thought of claiming property of this character when they executed the deed.
Inasmuch as the deed provided a possibility of reverter only, we must hold that the reversion includes only the demised lands, without the operating appurtenances of appellants.
The judgment is reversed, and the cause is dismissed.
Helena & L., S. & F. Co. v. N. P. R. Co., 62 Mont. 281, 205 Pac. 224, 21 A. L. R. 1080; I. C. R. Co. v. Hoskins, 80 Miss. 730. 32 So. 150 92 Am. St. Rep. 612; Hatton v. K. C. Ry. Co., 253 Mo. 660, 162 S. W. 227; Corwin v. Corwin, 12 Ohio St. 629; Wagner v. Cleveland, etc. Ry. Co , 22 Ohio St. 563, 10 Am. Rep. 770; McNair v. Rochester, etc., Ry. Co., 59 Hun. 627, 14 N. Y. Supp. 39; Talley v. Drumheller, 143 Va. 439, 130 S. E. 385; Wiggins Ferry Co. v. O. & M. R. Co., 142 U. S. 396, 12 S. Ct. 188, 35 L. Ed. 1055; Cranor v. Lake Erie, etc., R. Co., 83 Ind. 449. 149 N. E. 97. On the question whether fixtures may be removed, see Field v. Morris, 95 Ark. 268, 129 S. W. 543; Barnes v. Jeffus, 173 Ark. 100, 291 S. W. 990; Choate v. Kimball, 56 Ark. 55, 19 S. W. 108; Bank of Mulberry v. Hawkins, 178 Ark. 504, 10 S. W. 2d 898; Sessoms v. Ballard, 160 Ark. 146, 254 S. W. 446; Cameron v. Robbins, 141 Ark. 607, 218 S. W. 173; Bennett v. Taylor, 185 Ark. 795, 49 S. W. 2d 608; Witherspoon v. Nichols, 27 Ark. 332; Cantley v. Edens, 190 Ark. 445, 79 S. W. 2d 280; Austin v. Federal Land Bank, 188 Ark. 971, 68 S. W. 2d 468. See, also, East Ala. R. Co. v. Doe, 114 U. S. 340, 5 S. Ct. 869, 29 L. Ed. 136; 22 R. C. L., § 12, p. 860; Brightwell v. International Great N. Ry. Co., 121 Tex. 338, 49 S. W. 2d 437, 84 A. L. R. 271; Skinner v. Ft. Wayne, etc., R. Co., (C. C. Ind.) 99 Fed. 465; 22 American Jurisprudence, § 53, p. 768; Wagner v. C. && T. Ry. Co., 22 O. St. 568, 10 Am. Rep. 770.
R. N. Magness v. Henry A. Kerr, 121 Ore. 373, 254 Pac. 1012. 51 A. L. R. 1466; 23 R. C. L., p. 1104; Abercrombie v. Simmons, 71 Kas. 538, 81 Pac. 208, L. R. A., U. S. 806, 114 Am. St. Rep. 509, 6 Ann. Cas. 239; Santa Fe, L. & E. Ry Co. v. Laune, 67 Okla. 75, 168 Pac. 1022; Orth v. Gregory, 98 Okla. 229, 223 Pac. 385; Epworth Assembly v. Ludington & N. R. Co., 236 Mich. 565, 211 N. W. 99; Noble et al. v. Okla. City, Higgins, et al., v. Same, 297 U. S. 481. 56 S. Ct. 562, 80 L. Ed. 816; Stevens et. al. v. Galveston, H. & S. A. Ry. Co., Tex. Civ. App., 169 S. W. 644; Pettit v. Stuttgart Normal Institute, 67 Ark. 430, 55 S. W. 485; Alexander et al. v. Morris & Co., 168 Ark. 31, 270 S. W. 88; 16 Am. Jur., p. 570; 19 Am. Jur. 526, notes 6, 7, and 8; Young v. Oviatt, 35 Pa. Sup. Ct. 603; Jones on the Law of Real Property, V. 2, par 1668-69; Ozark v. Adams, 73 Ark. 227, 83 S. W. 920; Hoye Coal Co. v. Colvin, 83 Ark. 528, 104 S. W. 207; K. C. So. Ry. Co. v. Anderson, 88 Ark. 129, 113 S. W. 1030, 16 Ann. Cas. 784, and others. | [
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Mehaeey, J.
On November 28, 1938, appellant, Cora Thompson, instituted this action in the Garland chancery court for the purpose of requiring the appellees, J. B. Foote and A. S. Goodwin, administrators of the estate of Nicy Morrisj deceased, and against the surety on her bond, the American Surety Company of New York, to deliver to Cora Thompson, appellant, property consisting of bank deposits and government bonds, which were held in trust by the said Nicy Morris, mother of appellant, Cora Thompson, for the said Cora Thompson, and were held in trust for the said Cora Thompson by the said Nicy Morris at the time of the death of the said Nicy Morris.
Nicy Morris, mother of appellant, had made a will disposing of her property, the fifth clause of which read as follows : “If any of the beneficiaries named in this will shall begin any proceedings to contest this, my last will and testament, then I will and direct any such person shall forfeit his or her right under this will, and he or she shall receive nothing tinder this will, but the part devised or bequeathed to him or her shall be divided equally among the other beneficiaries of this will.”
The money of the estate was distributed and appellant, Cora Thompson, received a portion of it. She and attorneys, Jay M. Rowland and Cecil Talley, deposited the money in a bank in Hot Springs, and thereafter a writ of garnishment was issued attaching the money in the bank, and this garnishment has never been tried.
There were answers, cross-complaints and interventions, but we do not deem it necessary to set them out, as there are hut two questions for our consideration. There was no evidence taken in the case, and appellants ask if they can maintain proceedings of this sort to secure the money alleged to belong to Cora Thompson. They cite the case of Daniels v. Bishop Trust Co., 32 Haw. Rep. 167, and say it is exactly in point. While the merits of the case are not at issue in this appeal, we know of no reason why Cora Thompson might not maintain an action of this kind, or replevin, or any appropriate remedy to recover the property she claims belongs to her.
The appellants allege that they requested the court to try the garnishment suit and determine to whom this money belongs, and the court declined to do so. They appeal from that order. That order, however, was not appealable.
This court'sáid, in the case of Road Improvement Dist. No. 1 v. Henderson, 155 Ark. 482, 244 S. W. 747: “We think the chancery court has erroneously refused to exercise its jurisdiction, and that the chancellor should either make the restraining order permanent or should dissolve it, as he sees proper. As appears from the recitals of the petition set out above, we have already held, in this case, that the order of the court granting an injunction in the case until a similar case pending in another court shall be determined is interlocutory and not final, and that an appeal will not, therefore, lie from such order. ’ ’
So in this case, according to the allegations of the appellants and order of the court, the court did not pass on the question of garnishment, and did not determine to whom the money belongs.
“We think the chancellor below made the mistake of law of deciding that he had the discretion to refrain from disposing of a case before him until another court had disposed of a case pending before it; and the result of this erroneous conclusion is a declination to proceed in the exercise of his jurisdiction. Mandamus will therefore lie to compel the exercise of the court’s jurisdiction.” Road Imp. Dist. No. 1 v. Henderson, supra.
It, therefore, appears clear that where a chancellor wrongfully refuses to exercise jurisdiction, mandamus mil lie to compel him to exercise jurisdiction.
The real question in the case is whether the court committed error in dismissing the case for want of prosecution. The complaint was filed on November 28, 1938, and it was dismissed for want of prosecution on April 20, 1939, practically five months later. The defendants all filed pleadings within a reasonable time and no evidence was taken, and so far as the record shows, no effort was made to get the case tried.
Section 5216 of Pope’s Digest provides that in equitable proceedings depositions may be used on the trial of all issues and upon all motions in actions by equitable proceedings, except where the court otherwise directs on an issue tried by a jury.
Section 5218 of Pope’s Digest provides that the court may fix the time for taking depositions, and when no time is fixed by tbe court, the depositions in chief of the party having the burden, shall be completed within forty days after issue joined, and those of the opposing party, within thirty days thereafter.
Section 5221 provides that the plaintiff may commence taking depositions immediately after the service of the summons, and the defendant after filing his answer.
Appellants contend that the court dismissed the case three days after issue was joined as to three of the defendants, Robert S. Wood, A. S. Goodwin, and J. B. Foote, and before the issue was joined as to the surety company. That, however, did not prevent the appellants from beginning the taking of depositions after the complaint was filed.
It appears from the record that this case was set for trial by agreement of parties, and on the day of trial the court dismissed the case for want of prosecution. The record does not show whether appellants asked for a continuance, or showed any grounds for a continuance. They state in their argument that they wanted to take depositions in other states. That matter, of course, should have been addressed to and passed upon by the chancery court.
There are numbers of questions argued by the attorneys for both parties, but, as we view the matter, the only question before us is: Did the chancery court abuse its discretion in dismissing the case?
“As a general rule, an action may be dismissed or a non-suit granted because of the plaintiff’s failure to prosecute it diligently. The power of the courts to dismiss a case because of failure to prosecute with due diligence is said to be inherent and independent of any statute or rule of court. Hence, it has been held that a suit may be dismissed if there has been a failure to have the summons issued for an unreasonable period of time after the filing of the complaint .or if, after the issuance of the summons, there has been an unreasonable and inexcusable delay in serving it. Length of time alone, however, is not a test of the staleness of a claim the question must be determined by the facts and circumstances of each case. The court may dismiss an action for unreasonable delay upon its own motion, and in some instances it is provided by statute that the court must dismiss an action unless it is brought to trial within a specified time, except where the parties have stipulated in writing that the time may be extended.” 17 Am. Jur., 88.
In the case of Chalkley v. Henley, 178 Ark. 635, 12 S. W. 2d 18, this court quoted from E. C. L. as follows: “ ‘As a court may dismiss an action for want of prosecution, so it may in its discretion vacate or refuse to vacate an order of dismissal, and such order will not be reversed by the Supreme Court on appeal, unless there has been a manifest abuse of discretion. ’ 9 E. C. L. 210. ’ ’
We also said in the Chalkley Case: “Courts are bound to have some rules and to regulate the procedure. The disposing of the business in the courts would be impossible unless the trial courts had some power to regulate the procedure and to fix the time of the trial of cases. An order dismissing a case for want of prosecution, granting or refusing a continuance, setting aside an order dismissing a case for want of prosecution, will not be reversed by the Supreme Court unless there is a manifest abuse of discretion.”
In that case we cited numerous other authorities, but the record in this case does not disclose any facts indicating an abuse of discretion by the trial court. Under our statute, the appellants could have begun taking depositions practically five months before the case was dismissed. The record does not show any reasonable excuse for this delay. No motion to reinstate was filed, and no reason given for the delay.
After a careful consideration of the record, we have concluded that there was no abuse of discretion by the trial court, and the decree is, therefore, affirmed. | [
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McHaney, J.
Appellee sued appellant upon the following instrument: ‘ ‘April 7,1938. I hereby agree to pay Century Orchestra Corp., the sum of Eighty Dollars 'Bal Due on Don Redmans engagement April 7, 1938, within 60 Days.” Appellant defended on the grounds of lack of consideration, duress and fraudulent misrepresentation. Trial resulted in an instructed verdict against appellant and judgment was entered accordingly. .
Appellant contends that there was a question of fact made for the jury and that the court erred in directing a verdict. The facts regarding the whole matter are very meagerly stated in the briefs, but we infer that appellant had engaged Don Redman’s band for a performance on April 7, 1938, at a price of $350, and that Orlando Robinson was to have some connection with the band, just what connection we do not know. It appears that one Frank was manager of the band. Appellant had paid $250 of the $350 agreed upon, and the band refused to play until the balance was paid. Appellant says Orlando Robinson was not with the band, and for that reason some of the people to whom he had sold tickets demanded their money back, and he didn’t think he should pay the balance. Under these circumstances he says Frank came to him and asked him to sign the above instrument so he could show it to the band, as a settlement, and that it would be returned to him. After the instrument was executed and exhibited, the band went ahead and played.
We see in this no element of fraud, unless it be said to be an attempt to defraud the band. Certainly not a fraud upon appellant. Nor was there any duress shown in getting him to sign. He owed a balance of $100, and the band refused to play until it was settled. It was settled by compromise for $80, and that in the form of a note. He knew that Robinson was not with the band and made his settlement. He says he lost money on the deal, but that was a risk he assumed.
Affirmed. | [
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Humphreys, J.
N. L. Ramsey, one of the appellants in this case, together with his brother, Lee Ramsey, executed a note in 1920 to appellee for $290 in consideration of appellee’s one-ninth interest in Texas lands which appellee and his brothers and sisters had inherited from their father. In addition to the onfe-ninth interest N. L. Ramsey purchased from appellee, he also purchased the interest of four other heirs. His wife owned a one-sixth interest in the Texas lands and her interest together with that N. L. Ramsey had purchased gave them jointly a six-ninths interest therein. All the heirs sold the Texas lands for $7,500 out of which $5,000 was received by N. L. Ramsey and his wife, Mary Ramsey, as their portion of the proceeds of the sale. A part of this money was used in the • purchase of the SELL of the NEi/4 and the NE*4 of the SE% of section 6, township 13 north, range 12 west and the S% of the NW]>4 of the NWy4 and the S% of the NE% of the NEy4 of the N¥x/4 and the NE14 of the NE% of the NW% of section 8, township 13 north, range 12 west in Stone county, Arkansas, containing in all 130 acres, more or less, and the deed was taken in the name of N. L. Ramsey. Interest was paid annually on the note beginning in 1921 up to and including the year 1933. Nothing was paid on the note after that date, and in the spring of 1935 appellee turned the note over to his attorney for collection. On September 10, 1935, N. L. Ramsey conveyed said real estate to his wife, Mary Ramsey, for the consideration of love and affection and caused said deed to be recorded in deed record Book 1, at page 188 of the records of Stone county, Arkansas. Suit was brought on the note in the circuit court of said county and judgment was taken against N. L. Ramsey and L. B. Ramsey, his brother, on November 15, 1937, in the sum of $408.36 and costs which was to draw interest at the rate of 10 per cent, per annum from that date until paid.
On January 22, 1938, an execution was issued out of the circuit court on said judgment upon which a nulla bona return was made by the sheriff.
This suit was then brought in the chancery court of Stone county to set aside the deed of said land from N. L. Ramsey to Mary Ramsey, his wife, on the ground that it was without consideration and fraudulently made to prevent appellee from collecting the note which N. L. Ramsey and his brother had made to him in 1920 for his one-ninth interest in the Texas lands.
Appellants filed answers denying that the conveyance was without consideration and made with the fraudulent intent of preventing appellee from collecting said note.
The cause was submitted to the court upon the pleadings and testimony introduced by the respective parties resulting in a finding that the purpose of the deed was to defraud appellee in the. collection of his note and a decree canceling the deed and subjecting the land to public sale to pay said judgment, from -which finding and decree is this appeal.
The testimony reflects that the land in Stone county was paid for out of the fund received from the sale of the Texas lands and that five-sixths of the amount received belonged to N. L. Ramsey, and that the deed was taken in the name of N. L. Ramsey and so held by him for a number of years without objection on the part of Mary Ramsey, his wife, or without any claim being’ made to all or any part of it by Mary Ramsey. In fact, the title remained in him until appellee turned the note over to a lawyer for collection and that within a few months thereafter, N. L. Ramsey conveyed all the land to Mary Ramsey, his wife, the recited consideration being love and affection. The testimony reflects that N. L. Ramsey made a gift of practically all of his personal property to his son. It is argued that, because one-ninth of the money received from the sale of the Texas lands belonged to Mary Ramsey and that these sums were used in the purchase of the Arkansas lands N. L. Ramsey held the title in the Arkansas lands in trust for her, and that the Arkansas lands really ¡belonged ■to her. There is no testimony in the record showing that any such agreement existed between N. L. Ramsey and his wife at the time he purchased the Arkansas lands. He purchased and paid for the Arkansas lands and took the deed to himself and retained the title thereto in himself until the note he owed appellee was turned over to an attorney for collection, then it was he conveyed all the land to his wife for love and affection and gave the major portion of his personal property to his son. The testimony also reflects that out of the $5,000 received from the Texas lands Mary Ramsey made a personal loan of $2,000 to a bank. The $2,000 she loaned to the bank was more than one-sixth of the money she and N. L. Ramsey received from the sale of their interest in the Texas lands. If N. L. Ramsey borrowed any of Mary Ramsey’s money in buying the Arkansas lands and took the deed in his own name as trustee for her the natural thing to have done -when he conveyed the land to Mary Bamsey was to recite the true consideration therein and not convey it to her for love and affection. We think there is no merit in appellant’s claim that the Arkansas lands were bought with Mary Bamsey’s money.
Appellants also contend that the testimony fails to show that the conveyance of the Arkansas land by N. L. Bamsey to Mary Bamsey and a gift of personal property to his son rendered him insolvent or execution proof at the time he made the gifts. It is true both N. L. Bamsey and Mary Bamsey testified that in 1935 after making the conveyances N. L. Bamsey was solvent. Yet they admitted that all he had left after making the conveyances was a little stock of goods not to exceed in value at any time more than $100. After appellee obtained judgment on the note in 1937 execution was issued thereon and no property was found by the sheriff belonging to N. L. Bamsey upon which to levy the execution. We think the conveyances or gifts rendered N. L. Bamsey insolvent at the time he made them and that he continued in that condition from and after that time until the trial of this suit. The law applicable to cases of this character was announced in the recent case of Eveland v. State, use Birdie Fossett, ante p. 366, 133 S. W. 2d 643, as follows:
‘ ‘ The rule is well settled that conveyances by debtors to members of their households or to near relatives are looked upon with suspicion and scrutinized with care, and when the embarrassment proceeds to insolvency, they are conclusively presumed to be fraudulent as to existing creditors.”
Every element necessary to apply this rule appears in the record of this case.
No error appearing, the decree is affirmed. | [
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Holt, J.
This cause was presented to the trial court on an agreed statement of facts, and for the purposes of this opinion we adopt appellants’ concise statement, which we think covers the material facts in this case, as follows:
“Appellee, Paving District No. 75, is a street improvement district duty organized and existing under the provisions of act 84 of the General Assembly of the state of Arkansas, approved March 22, 1881, and the subsequent acts of the said General Assembly amendatory thereof or supplemental thereto, said district having been formed by certain ordinances, duty passed by the city council of the city of Pine Bluff, Arkansas, and being approved by said, city council on November 19, 1923; said Paving District No. 75 was created and organized for the purpose of paving certain streets which were included in said paving district and said city ordinances, among other things, provided certain, assess ments, payable in successive annual installments, as liens against the property in said district for the purpose of paying the cost of said improvements, the annual installments being due and payable on the 15th day of May each year, beginning on May 15, 1924. Among other properties in said district was the property of Andrew M. Lee which was legally described as:
. “Lots seven (7) and eight (8) in block five (5) of Drew White’s Subdivision of the northeast quarter (NE]4) of the northeast quarter (NE%) of section ten (10), township six (6) south, range nine (9) west, commonly known as Drew White’s Survey No. Two (2), Pine Bluff, Jefferson county,, Arkansas.
“It was stipulated by and between the parties hereto that at the time the district was organized the benefits to be received by the said lot seven (7) were duly assessed at the sum of $677.60 and the benefits to be received by the said lot eight (8) by reason of said improvement were duly assessed at the sum of $1,056.40'. It was further stipulated and agreed that the annual installments of benefits were duly paid in the years 1924, 1925, and 1926, and that in the year 1927 the defendant, Andrew M. Lee, who was at that time the owner of the said lots, sold the north fifty (50) feet of each of said lots, and by agreement between the owners of the said respective portions of said lots the said assessed benefits were apportioned, and that the annual installments of said benefits as so apportioned were duly paid in the years 1927, 1928, 1929, 1930, Í931, 1932, and 1933.
It was further stipulated that the outstanding bonds of the said district were refunded as of September 1, 1933, and that the unpaid balance of the said assessed benefits were $210.68 on the south one hundred four (104) feet of said lot seven (7) and $316.02 on the south one hundred four (104) feet of said lot eight (8).
It was further agreed that the annual installments of said benefits on the south one hundred four (104) feet of said lots seven (7) and eight (8) in the years 1934, 1935, 1936, and 1937, amounting to the sum of $52.67 for each of said years had not been paid and had been duly returned as delinquent by the city collector of Pine Bluff, Arkansas, with penalties as provided by law; that said installments of benefits payable in the said years 1934, 1935, 1936, and 1937, aggregating $210.68 were then clue and owing to the said defendant paving district with penalties as provided by law, and were unpaid and that the installment payable May 15, 1938, in the amount of $52.67, was past due and unpaid. The north fifty (50) feet of the south one hundred four (104) feet of said lots seven (7) and eight (8) was conveyed to Ben C. Lee and the appellant, Home Owners’ Loan Corporation, became the owner of the south fifty-four (54) feet of the said lots seven (7) and eight (8) and thereupon requested that the said assessments of benefits on the portions of ¡the lots belonging to it be segregated and separated from the assessment of benefits on the north fifty (50) feet of the south one hundred four (104) feet of the said lots seven (7) and eight (8) so that it might pay only that part of the said paving taxes then due and thereafter to become due on the south fifty-four (54) feet of said lots seven (7) and eight (8).
“It was further stipulated and agreed that the appellant, Home Owners’ Loan Corporation, had sold and conveyed the south fifty-four (54) feet of the said lots seven (7) and eight (8) to Joseph W. Whiteaker and Laura P. Whiteaker, appellants herein, but that appellant, Home Owners’ Loan Corporation, retained a mortgagee’s interest in the property, said mortgage having been duly recorded in the office of the recorder of Jefferson county, Arkansas, and it was agreed that Ben 0. Lee and Peal Lee, his wife, were the owners of the north fifty (50) feet of the south one hundred four (1041 'feet of the said lots seven (7) and eight (8).”
Appellants instituted this suit in the court below to divide the assessment of benefits as between those parts of the lots in question under § 7302 of Pope’s Digest of the statutes of this state, which is as follows:
“Section 7302. Wherever lands, or other real property in an improvement district are assessed in one body, and are at the time owned in separate parcels, or where the ownership subsequently becomes divided, any owner of any part of said property may apply to the chancery court of the county where the lands, or some part thereof, lie, mailing defendants in his suit the other parties interested in said lands; and, thereupon, it shall be the duty of the court to partition the assessment against said lands amongst the several owners thereof, as equity and good conscience may require.”
The learned chancellor found that the unpaid balance of future assessment of benefits in the district should be partitioned, but that the annual installments which had already become due and payable should not be partitioned but should be paid to the appellee district as levied and extended against the entire south 104 feet of said lots 7 and 8 and ordered and decreed “that the said unpaid balance of the assessment of benefits in said Paving District No. 75 on the south 104 feet of lots 7 and 8 in block 5 in Drew White’s Subdivision of the NE% of the NE.14 of section 10, township 6 south, range 9 west, be and it is hereby partitioned between the several owners thereof so that hereafter the said balance of assessment on the north 50 feet of the south 104 feet of the said lots 7 and 8 shall be $131.70 and the said balance of assessment on the south 54 feet of- the said lots 7 and 8 shall be $395, and that hereafter annual installments shall be extended against and paid on the said parcels of land, respectively, in accordance herewith; that the annual installments heretofore extended against the south 104 feet of said lots 7 and 8 for the years 1934, 1935, 1936, 1937, and 1938 shall be paid as extended and as now appearing on the tax book of said district and that the said district is entitled to proceed against the said property to collect the said installments, and that the plaintiff shall pay the costs of this action.”
Prom this ruling of the court comes this appeal.
The only question involved here is, as stated by appellant, “Did the chancellor correctly interpret and construe § 7302 of Pope’s Dig’est of the Statutes of Arkansas when he held that the unpaid balance of assessments should be partitioned between the several owners of the south 104 feet of the said lots 7 and 8, and the lien of said assessments fixed in accordance with such proration but that he could not partition the annual installments heretofore .extended against the south 104 feet of said lots 7 and 8 for the years 1934, 1935, 1936, 1937, and 1938, and that they should be paid as levied and extended?”
It is our view that the chancellor correctly interpreted and applied the provisions of the above section of the statute.
We find no authority in this section for dividing the annual tax assessments against the south 104 feet of lots 7 and 8, which had become due and had not been paid at the time the suit in question was filed by appellants, and we think the only authority conferred under the act relates to subsequent and future assessments against the property in question.
We cannot agree with appellants’ view that “assessment” as used in the statute means not only the assessment of future benefits but all past due taxes as well. It occurs to us that if the Legislature had intended that past due and unpaid taxes should be partitioned after the property had become delinquent, it would have 'been a very easy matter for it to have said so in the act. This, clearly, it did not do.
We think the clear intent of the act is prospective, and not retroactive, as to the duty it imposes on the court to partition the assessments.
In the instant case the word “assessment” as applied to improvement districts means the assessment of benefits and it is that assessment which is to be partitioned in a case of this kind, since it is the basis for the taxes that are extended and collected from year to year. The partitioning of the assessment of benefits against any piece of property automatically partitions all future taxes only on that property.
On November 18, 1937, when appellant, Plome Owners’ Loan Corporation, filed its suit below, the annual installments on the assessment of benefits for the years 1934, 1935, 1936, and 1937 were due and unpaid on the entire south 104 feet of lots 7 and 8 in question. The lien for same had attached to this property and appellee district had the right to demand that these past due installments be paid to it and that they were not subject to partition under divided ownership between the Ben C. Lees, who had acquired the north 50! feet of the south 104 feet of said lots, and the other appellant, the Home Owners, Loan Corporation, which had acquired title to (he south 54 feet.
On this record, finding no errors, we conclude that (he decree should be affirmed, and it is so ordered. | [
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Smith, J.
The essential facts out of which this litigation arose are stated in the opinion in the recent case of Southwestern Distilled Products, Inc., v. Trimble, Judge, 198 Ark. 970, 132 S. W. 2d 196, in which case a writ of prohibition was prayed against the Benton circuit court, in a proceeding'wherein, the prosecuting attorney of that county sought to enforce the collection of revenue tax on a quantity of liquor owned by the Southwestern Distilled Products, Inc., hereinafter referred to as the distillery company.
It was alleged in the application for the writ that the authority to enforce payment of this revenue tax was vested exclusively in the 'Commissioner of Revenues of the state of Arkansas; and further that the circuit court was without jurisdiction to render any judgment with reference to the liquor which had been seized by the sheriff, for the reason that the distillery company, the owner thereof, had not been served with process. Neither of these contentions was sustained, and the writ of prohibition was denied, it being held that the circuit court did have jurisdiction, and that proper service of process had been had. It was there said: “The real subject-matter involved in this suit is the collection of the tax due the state out of the specific property involved and is really a proceeding in rein. We think the .court clearly had the right to seize the property and confiscate or sell it without respect to who was in possession of it or who was the owner of it. The property itself is responsible for the tax and subject to seizure and sale for the collection of the tax. The proceeding might well proceed to a conclusion without anyone being made a party. It is true that a judgment is asked against the parties who are in possession of the property, and personal judgment could not be rendered against either of them without personal service, but that is only incidental to the main purpose of this suit which was to collect the tax due the state out of the liquor itself. The court had jurisdiction over the rein and undisputed service against two of the parties who had the liquor in possession and we think sufficient service upon the Southwestern Distilled Products, Inc., who now claims to be the owner thereof.”
The objection to the service of process was that the suit against the distillery company had been filed against the Southwestern Distillery Company, whereas the true name of the owner was Southwestern Distilled Products, Inc., the process itself having- been served on the proper party had the owner been correctly named.
After the institution of the suit in the circuit court of Benton county, the distillery company filed suit in the chancery court of Benton county against the prosecuting attorney and the sheriff and other officers of Benton county who had served the writ and were in possession of the liquor, praying that these officers be enjoined from further prosecuting the suit or in any manner interferring with the business of the distillery company, which, it alleged, was being conducted in accordance with the law, and it was prayed that the impounded liquor be restored to the possession of the owner. It was alleged that the circuit court had not acquired jurisdiction of the liquor, for the reason that the owner thereof had not been sued, or served with process and that-the distillery company had paid all taxes legally due on the liquor in question.
A demurrer was filed to this complaint, which among other grounds of demurrer, alleged ‘ ‘ That another cause of action is pending in Benton circuit court, involving the same subject-matter sought to be involved herein, and that said court has assumed and now has jurisdiction thereof to the exclusion of any other court.”
The demurrer was overruled, and the prosecuting attorney elected to stand thereon, whereupon, after hearing certain testimony, the court found that no unpaid tax was due on the liquor, and the prosecuting attorney was enjoined from further proceeding, and from that decree is this appeal.
We think'it was error for the chancery court to entertain jurisdiction of this case, for the reason — if for no other — that the circuit court had first acquired jurisdiction of the rem. The opinion of the court denying the writ of prohibition against the circuit court had been delivered before the rendition of the decree here appealed from, and it had been held by us, in denying prohibition that the circuit court did have jurisdiction, and the purpose of applying for the writ was to prevent the circuit court from exercising that jurisdiction.
We treated the fact that the distillery company had not been sued by its correct corporate name as immaterial, it' being said that “The proceeding might well proceed to a conclusion without anyone being made a party,” upon the theory that it was a proceeding against the liquor itself, of which the court acquired jurisdiction when the liquor was taken from the persons found in possession thereof, whether they were the owners or not. The officers of the circuit court were in possession of the liquor under the order of the circuit court when the suit was filed in the chancery court. This is not only undisputed, but is alleged to be a fact in the petition for a restraining order against the prosecuting attorney and the sheriff of the county.
The effect of the decree here appealed from is to oust the circuit court of its jurisdiction, this being done by enjoining the prosecuting attorney and the sheriff, who are officers of the circuit court, from further proceeding; indeed, the decree orders the return of the impounded liquor.
That the circuit court did have jurisdiction was the point expressly decided when the writ of prohibition was denied, and, having first acquired jurisdiction, that jurisdiction was exclusive, even though the chancery court may also have had jurisdiction to determine whether any tax was due on the liquor, and, if so, the amount thereof.
It was said in the case of Davis v. Lawhon, 186 Ark. 51, 52, S. W. 2d 887, (to quote a headnote) that “Where two courts have concurrent jurisdiction, the one that first obtains jurisdiction will determine the case, and the other court would not be permitted to interfere.” Among other cases to the same effect are the following: Ellis v. McHenry, 1 Ark. 205; State v. Devers, 34 Ark. 188; Kastor v. Elliott, 77 Ark. 148, 91 S. W. 8; Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467; Vaughan v. Hill, 154 Ark. 528, 242 S. W. 826; Wright v. LeCroy, 184 Ark. 837, 44 S. W. 2d 355; Wasson, Bank Commr. v. Dodge, 192 Ark. 728, 94 S. W. 2d 720; Dobbins Bros. v. Anderson, County Judge, ante p. 635, 135 S. W. 2d 325.
It was held in Wright v. LeCroy, supra, that the chancery court has no jurisdiction to restrain the sheriff from executing process in a proceeding of the circuit court of which the latter court had jurisdiction.
We conclude, therefore, that the court below was in error in enjoining the prosecuting attorney and other officers of the circuit court from prosecuting the suit pending in the circuit court, and that decree will be reversed and the cause will be remanded, with directions to sustain the demurrer and to dismiss the suit.
Having held that the chancery court was without jurisdiction, it becomes unimportant to determine whether the decree was correct as to what, if any, taxes were due on the liquor, or the amount thereof. Gregory v. Williams, 24 Ark. 177; Dunnington v. Bailey, 27 Ark. 508; Prire v. Madison County, 90 Ark. 118 S. W. 706; Carter Special School District v. Hollis Special School District, 173 Ark. 781, 293 S. W. 722. | [
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Grieein Smith, C. J.
R. 0. Rainwater was appointed “. . . guardian of Charles W. Jackman, an incompetent.” Bond was executed by Western Casualty & Surety Company.
This appeal is from action of the chancery court in declining to set aside an order of the probate court allowing Rainwater credit for $5,616.31 of the ward’s funds he- had deposited in Twin City Bank of Walnut Ridge. The bank failed January 18, 1933. No dividends were paid. Rainwater resigned his bank position Januarv 17,1933.
Two errors are alleged: (1) That the appointment of Rainwater as guardian was void, and (2) that his act in taking credit for the lost fund was a fraud upon the court.
A vacation order of appointment was made February 20, 1932. The judgment recites that Jackman was a patient of Arkansas Hospital for Nervous Diseases, and that he was incompetent. February 22, 1932, in term, an order was made confirming the appointment.
The money received by Rainwater was originally paid under authority of the World War Veterans’ Act of 1924. The Arkansas general assembly -of 1929 en acted a measure ‘‘ Concerning' ’ the guardianship of incompetent veterans and of minor children of disabled or diseased veterans, and the commitment of veterans, and to make uniform the law with reference thereto.” It appears as act 36, approvedFebruar y 21,1929.'
When Rainwater’s report'was filed and credit was asked for the lost money,' an attorney contested on behalf of the Veterans’ Administration. Appeal was taken to circuit court. The probate judgment was upheld in a finding that the guardian had used due diligence and had acted in good faith in handling his ward’s funds. An appeal was granted to the Supreme Court, but was not perfected..
First. ' When on February 22 the probate court approved appointment of Rainwater it adopted the order previously made. In effect the later order included the former, the recitation being that “. . . the matter of R. 0. Rainwater having been appointed guardian of Chas. W. Jackman” is presented to the court. Reading the two orders together, the probate court had jurisdiction. Act 77 of 1905. See Pope’s Digest, § 7554.
If appellants’ contention could - be maintained, and the appointment held void, then the rule announced in Hastings v. U. S. Fidelity & Guaranty Company would apply and Rainwater Avould be held an equitable or de facto guardian. In such circumstance the probate court’s order approving the settlement would be void, and on appeal the circuit court would not have acquired jurisdiction.
Second... None of our eases holds that when a guardian presents his or her settlement to the probate court, an attorney ad litem must be appointed. * It is not an adversary proceeding in the sense that the ward must be represented by one especially appointed for that purpose. It is the court’s duty to examine the account and to take such steps as may be'necessary to verify the guardian’s fidelity. ' ^ 7
Twin City Bank had been in a failing condition for more than a year prior to January, 4933. Its instability was known to its officers. Rainwater, acting in the dual capacity of-cashier, and guardian, seems to have served the hank with greater loyalty than he served his ward, yet the fact that the money was left on deposit during the period of stress must have been known to the probate judge. In his exceptions the attorney for Veterans’ Administration urged this indiscretion. If the probate court erred in its judgment, and if the same error recurred on appeal, it cannot be said that the conduct complained of constituted fraud practiced upon the court.
The plea res judicata was interposed by appellees. It must be sustained.
Affirmed.
The order of February 22 was: “In the Matter of the Estate of Chas. W. Jackman, Incompetent. Now on this day is presented to Jthe court] the matter of R; O. Rainwater having been appointed guardian of Chas. W. Jackman and his bond approved as such guardian on February 20, 1932, in vacation, which proceeding is by the court examined and in all things approved.0
United States Code Annotated, Title 38, § 421.
216 Ark. 220, 172 S. W. 1016.
Fidelity Deposit Company v. Fairfield, 164 Ark. 498, 262 S. W. 322. | [
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Humphreys, J.
Appellants, J. B. Bond and W. M. Coats, were the plaintiffs in the lower court, and appellee, Tom Marlin, was defendant, and appellant, Gertrude Doyle, was an intervener.
The abstract of the pleadings appearing in appellants’ brief is correct and clearly presents the issues involved in the litigation and, rather than attempt to abbreviate the pleadings ourselves, we adopt and incorporate them in this opinion as a concise statement of the issues involved.' They are as follows:
On February 1, 1938, appellants, J. B. Bond and W. M. Coats, filed suit in the Union chancery court against appellee, Tom Marlin. Bond and Coats alleged that on the 4th day of August, 1926, they and one Frank R. Foster purchased from Phillip Garrett and others an undivided five-twelfths interest in and to the oil, gas and other minerals in and under and that might be produced from the west half of the northwest quarter (W1/^ NWy4)j section twenty-four (24), township eighteen (18) south, range seventeen (17) west, Union county, Arkansas; that- about that time they entered into an agreement with Frank R. Foster by which they agreed to and did furnish Foster money with which to purchase certain mineral interests in Union county, Arkansas, including the interest above described; that under said agreement-Foster was authorized to purchase min erais and resell the same, or any part thereof; that when sufficient money had been realized from sales of mineral interests to reimburse Bond and Coats for money advanced to Poster to purchase such interests, then Poster was to have an undivided one-third interest in the minerals and mineral rights not disposed of, and that Poster purchased the mineral interest above described for $833.30, which was paid by Bond and Coats.
Plaintiffs further alleged that the defendant, Marlin, at that time was acting as attorney for the firm of Bond & Evans, which was composed of J. B. Bond and Tex Evans; that he was also representing Poster in a number of transactions; that for the protection of plaintiffs and to facilitate the acquisition and sale of said mineral interests, title thereto was taken in Marlin’s name, and that the deed which was executed by Phillip Garrett and others was made to Marlin, and was filed for record in the office of the circuit clerk and recorder of Union county on the 19th day of August, 1926, and is duly recorded in record book 233, page 469 of said record.
Plaintiffs further alleged that Poster, acting for himself and plaintiffs, sold one-half of the above described mineral interest, being an undivided five-twenty-fourths interest in the oil, gas and other minerals in the land described above, to W. D. Wingfield, and that the defendant Marlin, pursuant to instructions from Poster and the plaintiffs, executed and delivered a deed to Wingfield conveying said interest to him.
Plaintiffs alleged that, after the sale’ to Wingfield, title to the remaining undivided five-twenty-fourths interest in the minerals in the land described above remained in the' defendant Marlin, who at all times has held same in trust for the benefit of plaintiffs and Poster, their heirs, devisees or assigns; that plaintiffs at this time are uninformed as to the ownership of the undivided one-third of said five-twenty-fourths interest which did belong to Poster, but they allege that the other two-thirds of said interest is at this time held in trust by Marlin for their benefit, and that at all times until recently the defendant has never disputed plain tiffs’ title to said mineral interest, but on tbe contrary has at all times recognized their interest therein, and admitted that he held the same in trust for their benefit.
It is further alleged in the complaint that recent development for oil and gas in the vicinity of the land above described has caused said minerals and mineral rights to greatly enhance in value; that plaintiffs could, were they in a position to convey title thereto, obtain a substantial consideration for said mineral rights; that a few days before the filing of suit plaintiffs requested the defendant to execute to them a conveyance of said mineral rights so that they would be in a position to sell, handle and dispose of their property as they might see fit and proper, but the defendant refused to convey said interest to them, denied that they owned any interest in said minerals and informed them that he claimed the absolute title thereto.
Plaintiffs prayed for a decree of the court adjudging that the defendant holds said minerals and mineral rights as trustee for their benefit, for an order directing the defendant to execute proper conveyance to plaintiffs, and, upon his failure to do so, for a decree divesting title to said mineral interest out of the defendant and vesting the same in plaintiffs. They prayed for costs and general .relief. The complaint was duly verified by plaintiff Coats.
The defendant, Marlin, in his answer admitted that Poster purchased said mineral interest from Phillip Garrett and others, and that the title thereto was taken in defendant’s name,■"but he denied that plaintiffs had any interest therein. He admits that he conveyed one-half of said mineral interest to W. D. Wingfield at the instance of Prank B. Poster, but he denied that he did so at the instance of the plaintiffs and denied that he had any knowledge or information that plaintiffs had any interest in said transaction or in the minerals conveyed by Phillip Garrett and others to him. He admits that after the sale to Wingfield the title to the remaining undivided five-twenty-fourths interest in the minerals .in said land remained in him, but denies that he has at all times held same in trust for plaintiffs and Foster, and denies that he ever held two-thirds of said interest in trust for the benefit of the plaintiffs. He denies that he has ever recognized plaintiffs’ interest in said minerals, or ever admitted that he held same in trust for their benefit.
Marlin alleges that on or about the 4th day of August, 1926, Foster purchased from Garrett and others an undivided five-twelfths interest in and to the oil, gas and other minerals in, on and under and that might be produced from the tract of land described .above, and that said interest was deeded to Marlin by Garrett and others. He states that at the time said interest was purchased he did not know or have any information that plaintiffs, or either of them, claimed any interest in the minerals, and that he has had no such information since that time; that a short time after he deeded an undivided five-twenty-fourths interest in said minerals to W. D. Wingfield, Foster, being indebted to him, and in consideration of the settlement of the indebtedness that was due him, agreed for Marlin to keep the remaining five-twenty-fourths interest in said minerals as his own property, and that he has at all times since then held the same as his own property; that during said period of time, plaintiffs never intimated or said anything to him about their being the owners of the property or having any interest therein until recent development for oil and gas in the vicinity of said land; that he has never held said interest in said minerals in trust for plaintiffs and has never known or recognized anyone in said transaction other than Foster; that he is entitled to have his title to an undivided five-twenty-fourths interest in the minerals in and under said land quieted and confirmed in him as against plaintiffs. He.prayed that plaintiffs be denied the relief sought in their complaint; that he be decreed to be the owner of an undivided five-twenty-fourths interest in the minerals' in and under said land; that his title thereto be quieted and confirmed as against plaintiffs, and that he have judgment for his costs and all other proper relief.
The appellant Gertrude Doyle intervened in the ease and alleged that she was formerly Gertrude Poster, wife of Prank Poster; that Frank Poster died on the 7th day of June, 1933, leaving a will in which he bequeathed and devised to the intervener all of his property, real and personal and wheresoever situated; that she is the sole devisee in said will and was the executrix of the estate of Prank R. Poster, which she has fully administered and has been discharged as executrix. She alleged that at the time of his death Prank R. Poster was the owner of an undivided one-third of five-twenty-fourths interest in and to the oil, gas and other minerals in the 80-acre tract of land described in plaintiffs’ complaint, and that upon the death of Poster she became the owner of said interest. She adopted the allegations of the complaint and prayed for a decree declaring the defendant Marlin as her trustee, holding an undivided one-third of five-twenty-fourths interest in the oil, gas and other minerals in said land for her benefit; otherwise she adopted the prayer of the plaintiffs, and prayed for costs and general relief.
Marlin answered Mrs. Doyle’s intervention and denied that Poster was the owner of one-third of said mineral interest at the time of his death; denied that the property was acquired in the manner set forth in the original complaint; denied that the intervener became the owner of said interest upon the death of Prank Poster. He reiterated the allegations of his answer to the complaint to the effect that Poster had given the interest to him in settlement of Poster’s indebtedness to him, and that he acquired the interest from Poster without notice of any outstanding equity. He prayed that the intervention be' dismissed for want of equity.
The cause was submitted to the court upon the pleadings and evidence adduced by the respective parties resulting in the following finding and decree: .
‘ ‘ The court made its decree on the 29th day of May, 1939, and found that the five-twenty-fourths interest in all of the oil, gas and other minerals, on, in and under the west half of the northwest quarter of section twenty-four, township eighteen south, range seventeen west, was acquired by the defendant, Tom Marlin, by purchase from Frank R. Foster, for and in consideration of the sum of $200, which was received by Frank R. Foster, J. B. Bond and W. M. Coats, and that the defendant, Tom Marlin, is now the owner of the said five-twenty-fourths interest of all the oil, gas and other minerals, on, in and under said lands. The court dismissed the complaint of plaintiffs J. B. Bond and W. M. Coats and the intervention of the intervener Gertrude Doyle for want of equity, and quieted the title- to five-twenty-fourths interest in the oil, gas and other minerals- on, in and under the above described tract of land in the defendant, Tom Marlin, and gave him judgment against the plaintiffs and the intervener for his costs. Plaintiffs and the intervener excepted to the court’s decree and prayed an appeal to this court, which was granted.”
The evidence is voluminous and after a careful reading and analysis of same we have concluded that the weight of the evidence establishes the fact that five-twelfths of the oil, gas and other minerals in, under and upon the 80-acre tract of land referred to as the Garrett land was paid for by check of Bond & Evans and that the title was taken in the name of the defendant, Tom Marlin, who held, the same as trustee for Foster, Bond and Coats; that soon after the purchase of the property Tom Marlin, at the instance of Foster and for himself, Coats and Bond sold one-half of the minerals which had been purchased from Garrett to W. D. Wingfield leaving title to five twenty-fourths of oil, gas and other minerals in said tract of land in Tom Marlin as trustee for the three parties; that at the time the purchase was made from Garrett by Bond, Coats and Foster as well as other lands and leases they purchased, Marsh & Marlin were employed as attorneys for Coats, Bond and Foster to examine the titles to all of the purchases they made and that the title to this 80-acre tract as well as the other lands purchased was examined by an attorney 'by the name of John Carroll at the instance, request and con sent of Marsh & Marlin; that at the time of these transactions the relationship of attorney and client existed between Marlin on one part and Foster, Coats and Bond on the other; that no transfer or conveyance of said five twenty-fourths interest in said land was ever made by Marlin to Foster, Coats and Bond or either of them and that Marlin still holds same in trust for them.
It is true that Marlin claims Foster told him he ■might have the five twenty-fourths interest for an antecedent debt of $200 which Foster owed him and claims that books kept by him showed that to be the fact, but we cannot tell from the examination of the books definitely what transaction the entries therein relate to.
It is conceded that Marlin had no interest in the. land unless he obtained same from Foster under an oral statement on the part of Foster, testified to by Marlin, that Marlin might have the lands for an indebtedness Foster owed him.
There are a number of circumstances in the record which indicate that Marlin knew that Coats and Bond were interested in this and the other purchases made by Foster and that if he did not actually know it, there was ample to put him on notice and inquiry from which he could have readily ascertained the interest Bond and Coats did own in the property.- In fact, Marlin admits that he knew Coats had an interest, but that he did not know Bond had an interest in the lands which were acquired and conveyed to him in trust.
This court said in the case of Swaim v. Martin, 158 Ark. 469, 251 S. W. 26, that: “The procuring of the conveyance of the Carlisle property from Martin to Swaim was during the existence of the relation of attorney and client. In such cases the burden is upon the attorney of proving the fairness and equity of the transaction and the adequacy of the consideration, and upon his failure to make such proof a court of equity will treat the case as one of constructive fraud. The reason is that the relation of client and attorney is one of trust and confidence, requiring a high degree of fidelity - and good faith. Thweatt v. Freeman, 73 Ark. 575, 84 S. W. 720, and McMillan v. Brookfield, 150 Ark. 518, 234 S. W. 621.”
Under this authority we do not think Marlin has discharged the burden which rested upon him.
The decree of the lower court is reversed and the case remanded to that court, with instructions to enter a decree granting the prayers of the complaint and intervention. | [
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Grieein Smith, C. J.
The appeal is from a decree granting appellee a divorce from appellant. In a cross-appeal appellee seeks to reverse the chancellor’s finding that he should pay accrued alimony of $2,740, and $200 per month as permanent alimony.
Appellee is a lieutenant commander in the United States navy, retired. He and appellant-married in 1910 at Seattle, Washington, and have four children. The youngest, a daughter, was 13 years of age when the cause was tried, and is the only minor.
In June, 1932, appellee sued for divorce at San Diego, California. The court made an order requiring alimony payments of $200 per month pendente lite. Before the controversy could be finally heard appellee was transferred to Pensacola, Florida. He dismissed the California suit.
Appellee testified that he separated from his wife in San Diego, and so informed her, but found, upon arriving in Pensacola that she had preceded him, and had rented a home. Appellee resided in a hotel. Appellant frequently sent the children to appellee with messages asking that he move to her residence. He says that for economic reasons he finally consented to occupy a room in her home, with the understanding that he was free to go and come as convenience required. During this period he again told appellant o,f his intention to seek divorce, and urged that she go to her home in Bremerton, Washington. It was his thought, then, that after a year’s separation differences could be adjusted.
While in Pensacola appellee brought suit again, alleging that final separation had occurred January 4, 1933. The action was begun December 30, 1933. The charges were habitual indulgence in violent and ungovernable fits of temper, and extreme cruelty. The findings were against appellee. However, alimony of $225 per month was awarded appellant. Appellee says that prior to trial he had voluntarily increased by $25 per month the amount directed by the California court to be paid.
Another transfer took appellee to Bremerton. Being dissatisfied with the Florida judgment (rendered by the circuit court of Escambia county, in which Pensacola is situated), he again invoked judicial relief by bringing a new suit in Bremerton.. The action was dismissed.
Appellee’s next unsuccessful effort was made in Dade county, Florida. Dismissal followed in 1936.
During the period of these far-flung assaults on the matrimonial contract, appellee was drawing a salary of $596.83 per month. This was the net sum received after deduction of an amount sufficient to pay premiums on a $10,000 policy of insurance, made- payable to his wife and children.
March 3, 1938, appellee sued in G-arland chancery court, the allegation being that “. . . ' plaintiff was compelled to leave the defendant because she was guilty of such indignities to him as to render his condition in life intolerable, in that she treated him with rudeness, contempt, abuse and studied neglect, habitually and systematically pursued, until it finally became impossible for the plaintiff to longer live with the defendant.”
In appellee’s brief it is said: “When this canse was finally submitted to the Garland chancery court the appellee, largely on account of the continued persecution and harassment of appellant, had been forced to go on the retired list of the U. S. navy, and his salary had been reduced ... to $296 per month.” Appellee testified that the amount he received monthly “after the deduction of the insurance premium (which is deducted by the government) is $296.09.”
Retirement from active naval service occurred February 1, 1937.
In response to the complaint, appellant, on July 6th, 1938, asked the court for temporary maintenance, attorney’s fees, and cost. (Following the Florida judgment for payments of $225, appellee reduced his remittances, first to $100 per month, then to $80.) The Garland chancery court made certain allowances for an attorney and costs, and'directed the defendant to continue payment of $80 per month until the cause should be heard on its merits.
Plaintiff completed his testimony August 30. October 25 appellant filed a demurrer to the complaint, and to the evidence. She alleged (1) that the complaint did not state a cause of action; (2) that the evidence did not entitle plaintiff to a decree; (3) that no indignities were alleged or proved to have occurred within five years; (4) that no cause for divorce for desertion had been alleged or proved; (5) that all grounds for divorce were barred by the judgment rendered by the Florida court; and (6) that the plaintiff was in default in alimony payments.
In his motion to strike the demurrer appellant urged it was not filed in apt time. He pleaded that the order of the [Garland chancery] court had been complied with relative to maintenance, attorney’s fees, and costs, and showed that the plaintiff had completed his depositions August 30, .and had rested. . . .
February 10, 1939, an amendment to the complaint was filed, alleging desertion and abandonment for more than a year. • '
Appellant’s demurrer was overruled February 15. Thirty days were allowed for the filing of appellant’s testimony.
February 28 appellant filed answer and cross-complaint. There was denial that any cause of action in plaintiff’s favor had occurred since the Florida decree was rendered. That decree was especially pleaded as a bar to all causes' originating prior to its rendition. The contention was that “All matters alleged in the complaint in this action are res judicata, having been, determined againt plaintiff by [the Florida court].”
Appellee insists that because § 1430 of Pope’s Digest uses the word “must” in fixing the time, within which a defendant may respond or cross-complain, action of the chancellor in permitting appellant to answer, after her demurrer was overruled, was, arbitrary. The point is not well taken. It is discretionary with the court to allow or reject a. belated answer. McCall v. North Pine Bluff Realty Co., 125 Ark. 553, 188 S. W. 1178. It will be presumed that reasons satisfactory to the trial court were shown for the delay. • .
In the decree here-appealed from the court found that “The allegations of the plaintiff’s amendment to the complaint have been sustained by the evidence and the plaintiff is entitled to an absolute divorce from the defendant on the grounds of desertion. The answer and cross-complaint of the defendant, setting up a plea of res judicata as to the matters' and issues involved in this action, [are] hereby dismissed for want of equity for the reason that the judgment of the circuit court of Escambia county in an action between the same parties, and the court having jurisdiction of the parties, is not determinative of the issues in this case, but the prayer of the cross-complaint for accrued alimony in the sum of $2,740 to February 4, 1939, be and the same is hereby granted. . . . That the defendant . . is entitled- to receive the sum of $200 per month permanent alimony ... as provided in the [Florida] decree entered February 12,-1934.”
The appellee’s testimony seems conclusive of the proposition that the grounds upon which divorce was denied in Florida were substantially the same as those alleged in appellee’s original complaint in the case at bar.
In his reply to appellant’s answer, and in the answer to the cross-complaint, appellee refers to the “. . . duly authenticated copy” of the decree of the circuit court of Escambia county. The authenticity of the copy appears to have been conceded, but its effect is contested.
Grounds for divorce in this state are enumerated in § 4381 of Pope’s Digest, as amended 'by act 20, approved January 27,1939. Section 4386 requires that the plaintiff prove (1) a residence in the state for three months next before the final judgment granting a divorce in the action and a residence for two months next before the commencement of the action; (2) that the cause of divorce [must have] occurred or existed in this state, or if out of the state, that it was a legal cause for divorce in this state, the laws of this state to govern exclusively and independently of the laws of any other state to the cause of divorce; (3) that the cause of. divorce occurred or existed within five years next before the commencement of the suit.
Appellee testified that he lived with his wife “. . . until the fourth of January, 1933, when I left [her] at Pensacola.” There is this further statement: “My condition in life has been rendered intolerable by her conduct, and my cause for divorce occurred and existed before the filing of this case in California and other states, and within five years next before the filing of this suit. I have no property.”
It is quite clear that in seeking divorce, appellee directed his testimony to grounds provided in the fifth subdivision of § 4381 of Pope’s Digest.
There is no testimony showing that subsequent to the Florida decree appellee undertook to effectuate a reconciliation with his wife. The contrary appears. The suit he filed in Washington, and the present action —the latter having been brought five years and two months after final separation — are evidences of his attitudes. The conduct which he asserts gave rise to an intolerable condition constituted the ground upon which he relied for divorce in Escambia county. His testimony was: “I separated from her because of indignities which rendered my condition in life intolerable.” The result of that trial must have been a finding that his allegations were not sustained; or, if sustained, that there had been condonation or other reasons for dismissixlg the prayer for divorce. .. ...
The parties in the Florida proceeding, having been the same as those in the instant case, and the grounds relied upon'in Florida having been substantially the same as causes alleged here, it follows that the foreign judgment was res judicata of the matters litigated. Ashton v. Ashton, 192 Ark. 774, 94 S. W. 2d 1033. Where, however, the defendant against whom alimony has been adjudged alleges and proves in a later proceeding that his financial condition has changed for the worse, and that it would be inequitable to require continued payment of a sum fixed at a time and in circumstances showing such defendant’s ability to pay, relief may be granted.
.. In the final decree in Florida, jurisdiction was expressly retained- “to change and modify [the alimony award] upon showing of changed conditions.” -y
The rule announced in the Ashton Case is generally approved. Ball v. Ball, 189 Ark, 975, 76 S. W. 2d 71. An interesting discussion of the subject is. f oxind in Leflar’s Conflict of Laws, § 135, et seq. See cases there cited.
... In the Ball Case it was said that denial of a decree upon a particular ground is no bar to a suit for divorce upon a cause of action which subsequently .arose.
The chancery court of Garland county had jurisdiction in respect of any new cause of action.- The. new cause — and the only new cause asserted — was desertion. Desertion,- being a continuing cause, was not concluded by:the Florida decree if it occurred after the adjudication .
If appellee was entitled to a divorce in Garland county because of desertion; he was entitled to the same-relief in Florida. His own testimony and his admitted, actions affirm the fact that since June, 1932 he has refused to live with his wife.
We think the Garland chancery court had jurisdiction to adjust the allowance for'maintenance, appellant having applied for affirmative relief in the matter of attorney’s fees, etc. In Zentzis v. Zentzis, 163 Wis. 342, 158 N. W. 284, it was said: ‘ ‘ There is a well-recognized practice that an award of alimony is subject to modification at any time by the court that awarded it or by an independent action in another court in either the same state or a foreign state, but such power to revise and alter a judgment for alimony does not apply to judgments in divorce actions making a final division and distribution" of the husband’s estate.”
In the case of Gibson v. Gibson, 81 Mise. 508, 143 N. Y. Supp. 37, the court considered rights of the parties where the wife, in 1910, obtained in New York state a judgment for separate maintenance. She went to Ohio and procured an absolute divorce. Upon failure of the defendant, after the absolute divorce had been granted; to pay under the New York court order, the wife moved in the latter court to have- the husband punished for contempt. The defendant contended that when the Ohio divorce was" granted he was relieved of the burden of separate maintenance. The court stated that the proper practice required him to move for modification of the first decree. In the opinion the court said: - - :■
“The direction for the payment of alimony in actions for a judicial separation proceeds upon a different theory than provisions for alimony in oases of absolute divorce. In the latter class of cases the marriage is dissolved, and the judgment for alimony in such cases is rather in the nature of a penalty imposed upon the guilty party for violation of his marriage vows and obligations. Alimony in such cases is rather a substitute for the rights of the innocent wife which the divorce cuts off and forbids in the future.
“The plaintiff in this case has seen fit to become a resident of Ohio, and to invoke the jurisdiction of the courts of that state, and obtain an absolute divorce from the defendant. This divorce, we have seen, she is estopped from questioning, and it, in effect, has terminated the marriage relation between herself and the plaintiff, upon which the provision of the decree for the payment of alimony was predicated. In legal contemplation the Ohio decree was just as effective to terminate the marriage relation as the death of the defendant would have been. Having elected to terminate that relation by proceedings in the Ohio court, we do not think the plaintiff can insist that she still has the right to enjoy the benefits flowing from that relationship, and it follows that the judgment directing the payment of alimony should be modified as asked.”
In the case at bar the trial court acquired jurisdiction to hear the divorce complaint, and having jurisdiction for that purpose it was empowered to determine whether, because of changed conditions, payment of $225 per month in alimony was equitable.
We hold, therefore, that on allegations other than desertion the Florida decree was res judicata; that appellee was not abandoned by appellant, but that the contrary is true; that appellee was delinquent in payments directed by the Florida decree, and will be required to abide such decree; that whether there was an agreement between appellant and appellee for payments less than those called for by the-order is a question of fact for determination of the chancellor on r'emand; that alimony equal to one-half of appellee’s salary of $296.09 should be paid appellant, amounting to $148.04, together with any sums found by the chancellor-to have-been delinquent; that the divorce was erroneously decreed, and should be (and is) reversed. It is so ordered. '
It is stated in appellee’s brief that in good faith, relying upon the decree of divorce, he has remarried. This is unfortunate, but does not change the law; In Womack v. Womack, 73 Ark. 281, 83 S. W. 937, 1136, the husband procured a fraudulent decree of divorce, such decree having been rendered August 31, 1899. December 17, 1900, the wife brought suit to set aside a conveyance made by her to the defendant while the marriage relationship existed, and to vacate the decree of divorce. The chancellor dismissed the complaint, and the wife appealed. The decree was reversed. On motion to modify, Chief Justice Hill said:
“Since the decision here appellee files a motion to modify the decree, and sets forth that he was married in Oklahoma July 15, 1903; that a child was born of such marriage^. . . . that he contracted the marriage . . . • in"good faith, having no idea that there was or would be any attack on the decree of divorce, and praying a modification to the extent that the cause be' remanded and evidence be adduced of these facts, to the end that this marriage be protected.” After reciting certain facts, the-Chief-Justice continued: “These suits to vacate decrees on ground of fraud are maintained even when the party committing the fraud has remarried before the institution of the suit. . . . The delay in this case in bringing- the suit did not work any prejudice to third person. Had the party remarried while there was -considerable- delay, that would be a circumstance strongly tending against sustaining the action. No such considerations are in this case. The marriage occurred in the face of an appeal pending here in a cause directly seeking to annul the divorce.”
While relief for the husband was denied because he had fraudulently procured the divorce, the woman he married was not a party thereto, and her status on motion to modify was a matter of consideration to the same'.extent as was that of her husband. The ground upon which the decision seems to rest is that the parties married with the knowledge that an appeal was pending. The same is true here, and if appellee elected to take his chances on affirmance of the decree, it was a risk he assumed with full knowledge of possible eventualities.
The decree is reversed and the cause remanded with directions to proceed in a manner not inconsistent with this opinion.
In 1935, by Chapter 16975 (No. 204) the Florida legislature enacted a so-called 90-day divorce law. The Compiled General Laws of Florida, 1937, show that “Wilful, obstinate and continued desertion of complainant by defendant for one year” will justify a divorce. | [
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Humphreys, J.
Appellee brought suit in the circuit court of Montgomery county against appellant and an alleged co-employee of appellee, alleging that the appellee was an employee of appellant, and that while engaged in cutting down a tree for appellant on November 6, 1937, out of which to make ties, his fellow servant negligently jerked the saw used in felling a tree, so as to pull appellee in the path of the falling tree, which fell across his body and crushed his left leg above the knee, fracturing the femur bone and impairing, injuring and severing the muscles, nerves and ligaments of the left leg.
Appellant filed an answer denying the allegations of the complaint and interposing the further defense that at the time appellee alleges he was injured through the negligent act of his co-employee he and his co-employee were the employees of Waymon Scott, an independent contractor and not employees of appellant.
The issues joined by the pleadings were submitted to a jury on the evidence introduced by the parties under instructions of the court, resulting in a verdict and consequent judgment in favor of appellee for $10,000, from which is this appeal.
At the conclusion of the testimony appellant requested the court to instruct a verdict for it on the theory that the undisputed evidence showed that appellee and his co-employee were working for Waymon Scott, an independent contractor, and not for it, which request was refused over appellant’s objection and. exception.
It argues for a reversal of the judgment on the ground that there is no substantial evidence, in the record tending to show that appellee and his fellow servant were its employees at the time he was injured and, for that reason, the trial court should have given its request for a peremptory instruction.
Although there is substantial evidence in the record tending to show that AVaymon Scott had entered into a written contract with appellant- to cut and saw cross ties for it at 22% cents each and was to furnish his own equipment and labor in making them, yet we find much evidence in the record tending to show that AVaymon Scott was in fact a superintendent or foreman for appellant and that he employed appellee and his co-laborer for appellant1 and not for himself.
AVaymon Scott testified that he was a foreman for appellant and not an independent contractor; that he had never been in the contract business; that he was not financially able to undertake independent contracting ; that he had no experience in that kind of business or work, and could not carry on that character of work without being supervised and directed in the details thereof by other employees of appellant who understood the business; that appellant reserved the right to hire and fire men he used to do the work; that appellant retained one-half of one cent out of the price of each tie to insure the laborers he used to do the work; that some time after appellee was injured, appellant paid him the one-half cent on each tie which it had theretofore deducted claiming that its bookkeeper had made a mistake in paying him twenty-two cents for each tie instead of twenty-two and one-half cents as agreed upon; that when appellee was injured appellant directed him to take appellee to physicians of its own selection for treatment and paid all the expenses itself or, at least, told him it had done so, and although he continued to work for appellant five or six months after appellee was injured it never deducted physician, nurse or hos pital charges out of the amounts due him. Other witnesses testified to facts and circumstances corroborating the testimony of Waymon Scott.
The contract relied upon by appellant as evidencing that Waymon Scott was an independent contractor was written on a .blank used by appellant in making lumber trucking contracts. There were a number of erasures and insertions in it and there was some evidence tending to show that the original contract and the copy thereof were not exactly alike. There was some evidence tending to show that a number of the provisions not erased in the blanks had no application to contracts for making crossties, but had application to lumber trucking contracts only. The contract contained no specifications as to the character or kind of ties to be made, such as dimensions, length, thickness or the kind of timber to be used in making them and no time was fixed within which they were to be cut and sawed, nor the length of time the contract should continue in force and effect. In fact, about the only definite thing in the contract was the price to be paid for making and sawing the ties. The substance of the contract was merely the employment of Waymon Scott to go on appellant’s land, cut and stack crossties of no particular description for an indefinite time or until further notice.
We cannot say as a matter of law from the written contract and the undisputed evidence as to the manner in which it was executed or carried out, that Waymon Scott was an independent contractor. In. view of the conflicting testimony on this issue, it became a question of fact for determination by the jury.
In the case of Wilson v. Davidson, 197 Ark. 99, 122 S. W. 2d 539, this court reviewed a number of cases laying down various tests as to whether one was an independent contractor or merely an employee or servant and said: “In all foregoing cases, it is held that it is the right to control and not the actual control that determines whether or not one is a servant or an independent contractor.”
In the application of this rule this court said in the case of Ice Service Co. v. Forbess, 180 Ark. 253, 21 S. W. 2d 411, that: “The conclusions as to the relationship must be drawn from all the circumstances in proof, and where there is any substantial evidence tending to show that the right of control over the manner of doing the work was reserved, it became a question for the jury whether or not the relation was that of master and servant. ’ ’
In the case of Humphries, et al. v. Kendall, 195 Ark. 45, 111 S. W. 2d 492, this court said: ‘ ‘ The vital test in determining whether a person employed to do a certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer. Stated as a general proposition, if the contractor is under the control of the employer he is a servant, . . . and wherever the employer interferes in any way with the work and superintends or controls its performance, this destroys the relationship of independent contractor.”
No contention is made that the court erred in its declarations of law, but simply that it erred in submitting the issue of the relationship of appellant and Waymon Scott for the alleged reason that there was no substantial evidence in the record tending to show that Waymon Scott was an employee or servant, but that the undisputed evidence showed that his relationship to appellant was that of an independent contractor. As stated above, we think that there is much substantial evidence in the record tending to show that Waymon Scott was an employee or servant of appellant and in view of the conflict in the evidence the trial court did not err in submitting that issue to the jury. The jury found that the relationship of master and servant existed between Waymon 'Scott and appellant, and appellant is bound by the finding of the jury, against it upon the issue.
Appellant contends, however, that the verdict is excessive and should be substantially reduced. The argument is made that because- Dr. Parmalee testified that in his opinion, when sufficient time had elapsed,, appellee would acquire full, normal function of knee action, and in view of the fact that appellee’s earning-capacity ranged from $1.50 to $2 a day with an expectancy of thirty-one years, the verdict was excessive. Dr. Parmalee testified that it would perhaps take eighteen months or more for him to recover so that he could carry on his work of farming and timber cutting again. He, of course, meant from the date of the trial. Eighteen months had already elapsed between the date of appellee’s injury and the date of the trial when Dr. Parmalee examined appellee. Appellee had not recovered on the date of the trial. He could not walk, but with the aid of a stick could hop around and was still suffering a great deal of pain.
Learned counsel in arguing for a substantial reduction of the verdict and judgment leave out of the question entirely the kind and character of the injury received by appellee and the excruciating pain and suffering endured at the time of and after his injury. The testimony reflects that a large tree fell on him pinning him to the earth and crushing his left leg and bruising and injuring the other; that a co-employee tried to lift the tree off of him, but was unable to do so on account of its size and weight; that he called for help and two or three others came and together they raised the butt of the tree and released him. They made a stretcher of their jumpers and carried him through the woods to their truck, a quarter of a mile distance. They then carried him in the truck lying on a little hay in the bed of the truck over a logging road to Forester, sixteen miles distant. They then had to make a detour on account. of road work and go by Mt. Ida. and thence to G-lenwood over rough roads before reaching highway 70 over which they traveled to reach Hot Springs. The injury occurred about 7:30 in the morning and they did not reach the hospital until noon or some time thereafter. Appellee testified that it was about four or five hours from the time of the accident until his leg was placed in a cast; that they put his leg- in a plaster of paris cast starting at the toes and that it came up the leg to his waist and encased his hips; that they spread his legs apart and fastened them with a board; that he stayed in this position for .eighteen days and could not move anything except his head and arms; that he laid on his stomach for twenty-four hours and after that time on his back; that Dr. Tribble took the cast off his leg and kept it in a hot-pack for five days because the bone had not knitted; that they then operated upon him and re-set the bones and put a drainage tube in his leg; that the leg was then put back in the cast and that seven days thereafter a window was out in the cast for the drainage tube to go through; that they kept the second cast on his leg for seventeen days and that he was sent home in the cast which the doctor took off about February 1, 1938; that he was returned to the hospital at that, time and kept there a week or ten days; that they massaged his leg and kept it in hot-packs; that during all this time from the date of the injury he suffered excruciating pain and, in his own language, suffered death. .
There can be no question about his great suffering which caused him to moan and scream out many times. All the witnesses who were with him on' the trip from the place of his injury to the hospital corroborated his testimony relative to his suffering. In fact, his testimony to the effect that he has suffered continuously great pain is not disputed by any witness. It is not contended that the court incorrectly instructed the jury as to the measure of damages. There is little or no doubt that he was injured to such an extent that- he will never fully recover from it and be restored to a condition where lie will work either in the field or woods. Dr. 'Scroggins testified that appellee will always have pain in the limb because of the lack of fluid in the knee joint and the impingement upon the sciatic nerve.
There is nothing in the evidence that tends to show that the jury in arriving at its verdict was moved by passion, prejudice, or an incorrect appreciation of the law applicable to the case. In the case of Coca-Cola Bottling Works v. Cordell, 189 Ark. 1132, 76 S. W. 2d 307, it was said: “The extent of the injury and the amount of recovery were questions of fact for the jury, and there is nothing in this case to indicate passion, prejudice, or an incorrect appreciation of the law applicable to the case. This court, as was said in Texas & St. L. Ry. Co. v. Eddy, (42 Ark. 527) cannot set aside a verdict if it is supported by proof, and when there is nothing to indicate passion, prejudice or an incorrect appreciation of the law applicable to the case.”
We think the amount of the verdict is responsive to the evidence and fully justified by the evidence.
No error appearing, the judgment is affirmed. | [
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Mehaeey, J.
The appellant was indicted for grand larceny alleged to have been committed on July 15, 1935, by unlawfully and feloniously taking, stealing and driving away one head of cattle, the property of Hanna-berry Plantation Company, a corporation.
The trial was begun on April 24, 1939, the jury was selected and sworn, and after hearing the statements of counsel and witnesses on behalf of the state, the court quashed the indictment and discharged the jury from further-deliberation. The court held the defendant to the next grand jury in a bond of $400.
The witnesses for the state testified in substance that the property stolen was the property of Lesser Goldman Company, a corporation, the .indictment' charging that it was the property of Hannaberry Plantation Company.
Appellant, on July 7, 1937, filed in court a plea of former jeopardy, alleging that he had been previously placed on trial and in jeopardy for this alleged offense; that on. the former charge he had entered his plea of not guilty, a jury had been selected, impaneled and sworn to try him, and opening statements of both the state and defendant had been made; some of the state’s witnesses had testified, when the court took the case from the jury on its own motion and without consent of the defendant,- quashed the .indictment and discharged the jury. This plea was verified and attached to it was the duly certified copy of the former indictment on which the defendant, had been placed in jeopardy, filed in open court. The former indictment was the same as the information filed by the deputy prosecuting attorney, except the indictment charged that the Hannaberry Plantation Company was the owner of the property, and the information filed by the deputy prosecuting attorney charged that the owner was the Lesser Goldman Company. The indictment and information charged the same offense, the difference being in the allegation as to the ownership of the property stolen.
The court, in announcing his ruling when he .quashed the indictment, stated that there was a variance between the allegation and'the proof as shown by the state. The information.filed by the deputy prosecuting attorney was filed more than three years after the offense was alleged to have been committed.
After hearing the evidence on the defendant’s plea of former jeopardy, the court overruled same, to which ruling of the court the appellant objected and excepted. The appellant then filed a demurrer to the information filed by the deputy prosecuting attorney, because it was filed by the deputy prosecuting attorney of the Southern District of Arkansas county, and also 'because the court had ordered defendant held to the grand jury. The demurrer was overruled and exceptions saved. 'Appellant was then tried on the information. The jury returned a verdict of guilty, fixing the punishment of appellant at one year in the state penitentiary. Motion for new trial was filed and overruled, and the case is here on appeal. ■
The court heard evidence on appellant’s plea of former jeopardy, which was, in substance, that the appellant was the same person indicted by the grand jury, and the indictment charged the property stolen as being the property of Hannaberry Plantation, when it was in fact the property of the Lesser Goldman Company. The proof also shows that the Hannaberry Plantation was owned by the Lesser Goldman Company; that two witnesses were called in the case against Johnson, and both testified. Petit jury and the court were present and heard the case in the regular way in the court room; the indictment and information were identified by the circuit clerk of Arkansas county. The evidence also showed that the information charged the appellant with the same theft that the indictment charged; the same crime. Evidence showed that the jury was selected, impaneled and sworn to try the case, and before any witnesses were called for the appellant, indictment was quashed and the jury discharged by the court from further consideration of the case. There was a question as to the ownership of the property, and the jury was discharged by the court. The defendant and liis attorney made no motion. Case was dismissed because of a question of ownership of the cattle. Neither the defendant nor his attorney made any motion to quash the indictment,'or for a dismissal of the case, or to discharge the jury.
The offense charged in the information is the same offense charged in the indictment, and while it was charged in the indictment that the property belonged to the Hannaberry Plantation Company, the evidence shows conclusively that this company belonged to Lesser G-oldman Company.
Section 3836 of Pope’s Digest is as follows: “No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits. ’ ’
Section 3851 of Pope’s Digest states what the indictment must contain, and it also. provides that the state, upon request' of the defendant, shall file a bill of particulars, setting out the act or acts upon which it relies for a conviction.
The indictment in the instant case was sufficient to charge the appellant with the crime of stealing cattle, and it was sufficient to advise him of the offense with which he was charged, and there was nothing in the indictment that in any way tended to prejudice the substantial rights of the defendant on the merits.
Although the indictment charged that the property belonged to the Hannaberry Plantation Company, when it in fact belonged to the Lesser-G-oldman Company, it was sufficient that if he had been convicted, the court could have entered judgment on the verdict.
Section 3834 of Pope’s Digest provides that the indictment must be direct and certain as regards: ‘ ‘ First, the party charged; second, the* offense charged; third, the county in which the offense was committed; fourth, the particular circumstances of the offense charged where they are necessary to constitute a complete offense.”
The state relies on § 3899 of Pope’s Digest, which reads as follows: “The dismissal of the indictment by the court, or demurrer, except as provided in § 3896, or for an objection to its form or substance taken on the trial, or for variance between the indictment and the proof, shall not bar another prosecution for the same offense.”
Variance between the indictment and the proof, mentioned in this section, necessarily means a material variance. There is no material variance here. The appellant could have been convicted and the court could have entered judgment. As a matter of fact, the evidence shows the Hannaiberry Plantation Company belongs to the Lesser-Goldman Company. It was in possession of the cattle for Lesser-Goldman Company.
“Where an offense involves the commission, or an attempt to commit, an injury to person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured, or attempted to be injured, is not material.” Section 3840, Pope’s Digest.
Certainly, under this indictment, there was no defect or statement in the indictment that would mislead the appellant or tend to the prejudice of his substantial rights on the merits. That the information charges the same offense that the indictment charged, no one can doubt.
Section 8 of art. 2 of the Constitution of the state of Arkansas provides that no person, for the same offense, shall be twice put in jeopardy of life or liberty.
The court said in a very early case: “According to this rule of construction, it would seem that the courts are confined in their power to dismiss an indictment, in a case like the one at bar, to formal or substantial defects, or a variance between the ’ indictment and the proof, and that such power does not extend to an indictment good in form and substance, as we have seen the indictment in this case was.” Lee v. State, 26 Ark. 260.
“If upon the first indictment, appellant could have been convicted of stealing the money, or any part or piece of it, described in the second indictment, the verdict on the plea of former jeopardy should have been in his favor.” Williams v. State, 42 Ark. 35.
“It is the established rule that when a jury in a criminal case is impaneled and sworn in a court of competent jurisdiction to try the prisoner, Under an indictment sufficient in form and substance to sustain a conviction, he is in jeopardy. He is then entitled to a verdict which will bar further prosecution for the same offense, and an unnecessary discharge of the jury without his consent does not deprive him of the right to the bar.” State v. Ward, 48 Ark. 36, 2 S. W. 191, 3 Am. St. Rep. 213; State v. Taylor, 180 Ark. 588, 22 S. W. 2d 34.
In discussing the question of former jeopardy, this court said: “The test is not whether the defendant has already been tried for.the same act, but whether he has been put in jeopardy for the same offense.” Binganan v. State, 181 Ark. 94, 24 S. W. 2d 969.
It cannot be doubted that the .indictment and information charged the same offense, and we think it clear that the indictment contained all the facts necessary to advise the appellant of the crime with which he was charged, and that the indictment was not defective.
“A prisoner is in legal jeopardy when he is put upon trial, 'before a court of competent jurisdiction, upon an indictment which is sufficient in form and substance to sustain a conviction, and a jury is charged with his deliverance. And a jury is thus charged when they have been impaneled and sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will or by a discharge of the jury.” Whitmore v. State, 43 Ark. 271.
Our conclusion is that the indictment was good, and that the plea of former jeopardy should be allowed.
It is contended also by the appellant that the information filed by the deputy prosecuting attorney was void. Amendment No. 21 to the Constitution of the State of Arkansas reads as follows:
“Section I. That all offenses heretofore required to be prosecuted ]ay indictment may be prosecuted either by indictment by a grand jury or. information filed by the prosecution attorney.
“Section II. That the General Assembly of Arkansas shall by law determine the amount and method of payment of salaries of prosecuting attorneys.”
It will be observed that the prosecuting attorney, in filing information, takes the place of the grand jury. It has been said that this is a great power carrying with it possibilities of great oppression if improperly used. There is some conflict in the authorities, but we are of opinion that under the above amendment to the Constitution, information charging one with a crime must be filed in the name of the prosecuting attorney. It is true that it is generally said that a deputy prosecuting attorney, legally appointed, is generally clothed with all the powers and privileges of the prosecuting attorney, but he must file the information in the name of the prosecuting attorney. In other words, it is the prosecuting attorney that is given the authority to file information, and not the deputy prosecuting attorney, 'the deputy, of course, may file information in the name of the prosecuting attorney, but he signs the name of the prosecuting attorney, and then his name as deputy.
“The power to bring informations which charge crime and on which warrants of arrest issue is a great power,, carrying with it possibilities of serious oppression, if improperly used. It involves the exercise of a quasi judicial discretion and the performance of duties widely different from those of an advocate in submitting a matter to grand jury. The power is lodged in the United States Attorney (by statute as to certain crimes, R. S., §. 1022 — Comp. St., § 1686 — ), and in the Attorney .General. No statute authorizing the delegation of it has come to my attention, except the act of 1906 which, as above noted, limits the delegation to such matters as are covered by special direction. Both by the statute, therefore, and by general -principles of law, a delegation of this power, if intended, must be made in clear and precise terms, and not left to inference or implication; it is not conferred by authority to conduct grand jury proceedings.” United States v. Cohen, 273 Fed. 620.
“The prosecuting attorney of a county is a quasi judicial officer. The law has intrusted him with power, upon what he deems sufficient cause, to institute proceedings. He takes the place of a grand 'jury; and as the law imposed upon the grand jury the duty of determining whether or not sufficient (cause) had been shown to justify an indictment against the accused, and gave them no authority to depute other persons to determine that fact and make a presentment, so the law imposes this duty on the prosecuting attorney, and gives him no authority to confer this power on another person. Like a judge, his power to determine what cases shall be prosecuted by filing an information cannot be delegated, but must be performed by himself.- At common law, if an indictment was found by a grand jury, one of whose members did not possess the necessary qualifications, it vitiated the indictment. . . . This is upon the principle that the indictment shall be preferred only by persons duly authorized. How much more important that an information, which takes the place of an indictment, be prepared by one whom the law has clothed with power to prefer the charge; and unless it is filed by an officer having such authority it will be a nullity. ’ ’ Richards v. State, 22 Neb. 145, 34 N. W. 346.
It .is true that § 10885 of Pope’s Digest authorizes deputy prosecuting attorneys to file information, but we do not think that the passag-e of this law was justified or authorized by amendment 'No. 21 to the Constitution,above set out.
There are seventy-five counties in Arkansas, and probably from one to five deputies in each county. The prosecuting attorney is elected by the people of the district, and is responsible to them for his official conduct. The people adopted the constitution giving him authority to file information, hut the amendment did not give authority to his deputies.
Our conclusion is that, under amendment No. 21 to the Constitution, the deputy prosecuting attorney must, if he files information, file it in the name of the prosecuting attorney, and that the information filed in this case was void.
For the errors indicated, the judgment is reversed, and the cause against appellant dismissed.
Smith, J., concurs in the judgment. | [
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Humphreys, J.
Appellant brought this suit against appellee in the Osceola district of Mississippi county seeking to have the court declare a constructive trust existing between appellee and appellant on the fractional northwest quarter of section 30, township 13 north, range 11 east, in Mississippi county, Arkansas, growing out of an application appellant made to appellee for a loan on said real estate to enable appellant to acquire the title to said real estate in consideration of $2,050, whereas, under appellant’s contract for the purchase of said land from the Luxora Cooperage Company, he owed it a balance of $4,050.
It was alleged, in substance, in the complaint that appellant purchased said real estate from the Luxora Cooperage Company under a written contract, dated February 26, 1935, for $4,500 to be paid in five years in monthly installments of $50 and a cash payment at the end of each year of $300, making a total payment each year of $900 or $4,500 at the expiration of. the five year period; that appellant made monthly payments, from April to December inclusive, to the Luxora Cooperage Company or a total of $450 leaving a balance due on his contract of $4,050; that during the month of January, 1936, the Luxora Cooperage Company through its president, Alvin Wunderlich, proposed to appellant to make him a deed to the land for $2,000 cash and release the contract; that, in order to obtain $2,000 in cash with which to pay the Luxora Cooperage Company and thereby save appellant $2,050, he applied to appellee for a loan agreeing to secure him with a first mortgage on said real estate; that during the pendency of negotia feions for the loan and after an inspection of the land and after showing appellee appellant’s contract with the Luxora Cooperage Company and after informing appellee that the rental value of the lands and eight houses thereon was about $1,080 a year, appellee, leading appellant to believe appellee would lend him the money, he, appellee, bought the land and the contract for $1,750 from the Luxora Cooperage Company, instead of making the loan to him and thereafter collected from appellant the monthly payments of $50 a month and $300 cash each year or a total of $2,350 and a $300 note and demanded that, appellant pay appellee the balance due under the terms of the contract before appellee would deed the land to appellant.
Appellee filed an answer to the complaint denying that any fiduciary relationship arose between them on account of the application to appellee for the loan, and denied that during the pendency of the negotiations for the loan he took advantage of the information he had received from appellant as to the character of contract appellant had with the Luxora Cooperage Company, but on the contrary that after making the inspection of the property he declined to make the loan and stated that subsequently he purchased the land and contract himself and was entitled to enjoy the discount in purchasing same.
The court heard the evidence and dismissed appellant’s complaint for want of equity, from which is this appeal.
There is no dispute in the evidence as to the character of contract that appellant had with the Luxora Cooperage Company with reference to the purchase of the land and no dispute that the Luxora Cooperage Company offered appellant a discount on the balance due under the contract if appellant would pay it $2,000 in cash and no dispute that appellant applied to appellee for a loan to pay the Luxora Cooperage Company the difference between the discount offered and the amount to be paid under the provisions of the contract. The only dispute in the evidence is whether during the pendency ■of the negotiations for the loan appellee lead appellant to believe that he would make the loan and instead of ■doing so took advantage of the information he had received to buy the contract and reap the benefit of the ■discount himself.
Appellant testified that he applied for the loan, and ■during the negotiations appellee inspected the property and lead him to believe that he would make the loan and instead of doing so purchased the land and contract from the Luxora Cooperage Company and obtained the discount himself.
Appellee testified that after inspecting the property he declined to make the loan and at a later date bought the contract at a discount, and that after he bought the contract appellant requested him to indorse on the contract that appellant had paid $450 on same and to indorse ■on the contract the January payment due thereon of $50, and that thereafter appellant without any protest or objection continued to pay the monthly payments to appellee under the terms of the contract until this suit was instituted by appellant.
Appellant contends that the fact that he applied for the loan to appellee created a fiduciary relationship between them and for that reason, as a matter of law, a constructive trust was implied to the effect that appellee purchased the contract for the benefit of appellant.
In the first place we do not think any fiduciary relationship between the parties was established by the evidence in this case. An application to a lender for a loan creates no such relationship simply because the applicant was lead to believe the loan would be made to him. No agency between the parties was created by the application. Even though the lender should lead the applicant to believe the loan would be made, the lender would Tie at liberty to make or refuse it. Appellant did not employ appellee to procure a loan for him, and he in no :sense became appellant’s agent. Even if appellee had promised to make appellant the loan, a refusal to do so thereafter would amount to nothing more nor less than •a breach of his promise and the failure to keep the promise would not constitute appellee a trustee in any sense.
But even if it should be conceded that appellee became the agent or trustee of appellant, appellant waived any right to bring a suit for a breach of promise by his subsequent acts and conduct. The undisputed testimony is to the effect that, after appellee purchased, the contract from the Luxora Cooperage Company and procured a deed from it to the land, appellant asked the appellee to enter on the back of the contract the payment of $450 he had made to the Luxora Cooperage Company and to give him credit for the $50 he was then payingappellee for the January installment. He continued without objection or protest to pay the monthly payments of $50 and $300 at the expiration of each year for two years and ten months. This was clearly an approval1 of the purchase of the contract by appellee, and after thus approving the purchase he is clearly estopped from insisting at this late date that appellee procured the contract and title to the property by the commission of any actual fraud upon him. Actual fraud is a necessary element of a trust ex maleficio. One cannot be heard,, after approving a transaction and complying with the-terms of a contract growing out of the transaction, to repudiate the contract. Appellant clearly estopped himself from repudiating the contract by the payments he made under it to appellee without objection or protest.
No error appearing, the judgment is affirmed. | [
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Griffin ¡Smith, C. J.
The appeal is from a judgment for $2,547.40 rendered on a jury’s verdict finding that appellant was delinquent under a policy of life and disability insurance issued September 25, 1924. Payments were to be made if the insured should become wholly disabled by bodily injury or disease ". . . so that he is prevented thereby from engaging in any occupation whatever for remuneration or profit.”
In January, 1926, appellee was accidentally shot by a hunting companion. He alleges that as a result of the injuries he cannot control his left arm and left leg, and that feeling is gone from his right side. When the accident occurred appellee was 37 years of age. His part-time occupation was that of an automobile mechanic. He was also a timber foreman and cruiser. In the latter employment he received $40 per week.
At the time of his injury appellee was employed by a stave company. His duties required, "cruising” in the timbered area along the St. Francis river to see that plenty of logs were ready for the mill. There were incidental activities, such as looking after motor boats, etc.
Shortly after the accident appellee made proof of disability. Appellant accepted the proof and began making payments. These continued until December 1, 1926, at which time appellant, having been informed that the insured had returned to work, discontinued the remittances.
Appellee testified that at the time payments were terminated he was assisting his foreman; that he made a few trips, 'but could not do the work, and was laid off. He was thus employed at $40' per week for "four or five or six weeks.”
Appellee says that after payments were discontinued he wrote the company, hut it was “quite a while” before this was done — “possibly,” or “perhaps,” or “about” 1927. It is in evidence that appellee’s mother wrote appellant January 25, 1927, insisting that her son was totally and permanently disabled. Appellant’s testimony was that (other than the letter from appellee’s mother) there were no communications from appellee for many years. The company’s notification to the insured that payments were being discontinued was dated January 7, 1927.
In 1927 or 1928 appellee consulted a lawyer to determine whether he was entitled to further payments. Presumably the advice was adverse, for appellee says: “I did not have much of an idea that I had a cause of action..’ ’
Following the accident appellee received hospitalization for thirty days, then during a period of sixty days made trips to the clinic for treatment. There is this testimony by appellee: “I went to work for the stave company about four months after I got out of the clinic, but I stayed on that job only a few weeks. [The stave company] put me back to work at my old salary of $40 a week.”
After unsuccessfully attempting other forms of work, appellee, in 1930, was employed by Burton Motor Company and has been so engaged since. His duties are to collect accounts and sell used cars. Beginning with 1936 his salary was increased to $20 per week.
Errors alleged are (a) that suit was barred by limitation ; (b) that the policy had lapsed, and (c) that appellee’s disability did not prevent him from engaging in “. . . any occupation whatever for remuneration or profit.”
The policy provides for a waiver of “. . . any premium falling due after approval [of proof that the insured is totally and permanently disabled] and during such disability.”
Quarterly premiums due June 25, 1926, and September 25, 1926, were waived. The last remittance made to appellee was December 1, 1926. It is appellant’s contention that the policy lapsed for non-payment of the quarterly premium due December 25,1926. There was a grace period of thirty days.
The facts clearly disclose that appellee was injured and has not recovered. It is insisted by the insured that the case comes within the rule frequently announced by this court that even though a claimant is able to do some work and engage in general business or professional activities, a judgment for compensation will be sustained if the injury or illness prevents the insured . . from performing all of the substantial and material duties connected with his business or avocation. ’ ’
In Missouri State Life Insurance Company v. Snow, 185 Ark. 335, 47 S. W. 2d 600, the insured was entitled to compensation if disability from sickness or injury prevented him . . at all times 'thereafter from engaging in any gainful occupation.”
In disposing of the case on appeal this court said: “There can be no question that [Snow] is partially disabled, that he has a stiff hip which seriously impairs its usefulness, that he cannot stand or walk as he once could, but it does not follow from this that his disability is covered by the policies. The total and permanent disability therein defined ‘must be such as to prevent the insured from engaging in any gainful occupation’. This is the hazard insured against under this clause and against no other, except that certain injuries specified ‘shall be considered total and permanent disability within the meaning of this provision, ’ none of which were suffered by appellee.”
It was then said: “By his own testimony appellee is shown to be performing the material and substantial duties of a gainful occupation.”
We are not unmindful of other decisions which appear to be in conflict with the Snow Case , but which are distinguishable. Bach has been decided upon the particular facts in issue — facts the court thought controlling.
An earlier decision is that of Industrial Mutual Indemnity Company v. Hawkins, 94, Ark. 417, 127 S. W. 458. It was there held that under a policy obligating the insurer to make certain weekly payments if the insured should be wholly disabléd and prevented “. . . from the prosecution of any and every kind of business for a period of not less than one week,” the insured was entitled to receive indemnity when he was so injured as to be “. . . wholly prevented from prosecuting any business in which he is capable of engaging.”- The case was extensively annotated. 29 L. R. A., N. S., 635, 21 Ann. Cas. 1029.
In the Hawkins Case, supra, Mr. Justice Prauenthal, speaking for the court, quoted from McMahon v. Supreme Council, 54 Mo. App. 468. In that case the policy the court was called upon to construe provided payment when the insured was . . totally and permanently disabled from following his usual occupation.” The Missouri court held that total disability would occur when he the claimant was prevented from following an occupation whereby he could obtain a livelihood; that in determining whether such disability existed in a given case both the mental and physical capabilities of the insured should be considered. There is this comment by Judge Prauenthal: “Provisions in all insurance policies should be construed most favorably toward those against whom they are meant to operate; and they should be interpreted so as to carry out the plain purpose of the agreement. That construction should be given to the language which would not make it inoperative from its very inception, but which would, if at all consistent with the words employed, make an effective undertaking.”
Applying this rule to the instant case, wé have a situation wherein the insurer acknowledged the insured’s disability and gave full force to effect of the injury during the period the insured himself recognized it. Following hospitalization and subsequent medical treatment appellee returned to work for the stave company by which he was employed prior to the accident, and his salary was the same he had formerly commanded. By the election to work for $40 per week rather than remain idle or partially employed in a different profession or business, he constructively informed the insurer that his disability was at an end. It appears he was mistaken; yet, without in a timely manner urging the mistake in mitigation, and without pursuing to a legal conclusion the rights he now says he then had, appellee sought and found other employment in different fields. By 1936 he had achieved sufficient proficiency to earn approximately $85 per month. He became a competent automobile salesman and won distinction in the ‘ ‘ fifty club. ’ ’
Are we to say that his injuries prevent him ‘ ‘. . , from engaging in any occupation whatever for remuneration or prof it ? ”
Admitted facts answer the query.
Since the policy does not cover partial disability, the judgment must be reversed and the cause dismissed. It is so ordered.
Mehaffy and Humphreys, JJ., dissent.
The principal judgment was for $1,770, representing fifty-nine monthly installments of $30 each. The suit was for payments alleged to have been due within five years from the time the complaint was filed. No claim was made for the preceding seven years, the theory being that such demands were barred by limitation. Interest on each of the fifty-nine installments was computed to date of judgment, amounting to $256. An attorney’s fee of $300 was allowed, together with statutory damages of 12 per cent. Pope’s Digest, § 7670.
Pope’s Digest, § 8933.
The Lincoln National Life Insurance Co. v. Cook, 194 Ark. 794, 109 S. W. 2d 679; Pacific Mutual Life Insurance Co. v. Dupins, 188 Ark. 450, 66 S. W. 2d 284; Missouri State Life Insurance Company v. Silvester Foster, 188 Ark. 1116, 69 S. W. 2d 869; Missouri State Life Insurance Co. v. Fodrea, 185 Ark. 155, 46 S. W. 2d 638; Missouri State Life Insurance Co. v. Withers, 188 Ark. 1130, 69 S. W. 2d 872. | [
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Humphreys, J:
On December 7, 1938, appellee brought suit in tbe municipal court in El Dorado against appellant on a fire insurance policy on Ms household goods issued by it to him on February 5, 1937, for $250, the face of the policy together with interest at the rate of 6 per cent, per annum and for a 12 per cent penalty under the statute and a reasonable attorney’s fee. He alleged that the policy was in full force and effect on the 12th day of September, 1937, at which time his household goods were destroyed by fire.
* Appellant filed an answer denying liability on the ground that the policy contained a clause which rendered it void in case appellee then had or should procure any other contract of insurance on his household goods in whole or in part without its consent, and that in violation of said provision appellee procured additional insurance in the sum of $200 from the North British & Mercantile Insurance Co.
Appellee recovered judgment against appellant for $138.89 from which appellant duly prosecuted an appeal to the second division of the circuit court of Union county where the case was tried under an agreed statement of facts, resulting in a judgment against appellant for $138.89, from which is this appeal.
The agreed statement of facts is as follows:
“On February 5, 1937, A. G. Gibson, colored, the plaintiff, (appellee) purchased from K. W. Bullion Insurance Service, a fire insurance local agency of El Dorado, Policy No. 122 of the Milwaukee Mechanics’ Insurance Company. The policy is attached hereto and made a part hereof. The policy covers $250.00 on household goods belonging to the plaintiff (appellee) and located in the plaintiff’s (appellee’s) house at 524 E. & B. street in El Dorado.
“On March 26, 1937, A. G. Gibson, the plaintiff (ap pellee) purchased Policy No. FT68374 of the North British & Mercantile Insurance Company from Mr. Harvey McHenry of the United Insurance Agency, another local agency in El Dorado. This second policy covered $200 on the plaintiff’s household goods at his home at 524 E. & B. Street in El Dorado.
“The plaintiff (appellee), A. G. Gibson, did not advise Mr. Bullion, who issued the Milwaukee Mechanics ’ policy, of the fact that he had purchased other insurance on his household goods. Neither did A. G. Gibson tell Mr. McHenry of the United Insurance Agency that he already had the Milwaukee Mechanics ’ policy.
“A fire occurred at 524 E. &B. 'Street on September 12, 1937, damaging the insured household goods. After the fire, Mr. Bullion first learned of the existence of the second policy in the North British & Mercantile Insurance Company. Mr. ~W. R. Smith, a special agent of the Milwaukee Mechanics’ Insurance Company, visited A. G. Gibson and denied liability on the ground that the purchase of the North British & Mercantile policy avoided the Milwaukee Mechanics’ policy. Mr. Smith, at the same time tendered to Gibson the sum of $3.00, the amount of the premium charged and collected on the Milwaukee Mechanics’ policy, and the tender was refused. The defendant again renews the tender in this court.
“It is further stipulated that, if the court finds for the plaintiff (appellee) on the law, then the amount of' damage the plaintiff (appellee) should recover is $138.89 with interest at 6 per cent, from November 12, 1937, but without penalty and attorney’s fees.
“(Signed) T. 0. Abbott,
“Attorney-for the Plaintiff (Appellee) James I. Teague,
“Attorney for the Defendant (Appellant).”
The policy relied upon as a basis of this suit was attached to the stipulation or agreement and contains the following clause:
“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in pail by this policy.”
The cause was submitted to the trial court sitting as a jury upon the pleadings and stipulation or agreement of facts and the appellant requested the court to make two declarations of law, the first declaration being-granted and the second refused.
The first declaration of law is as follows:
“That the clause in the insurance policy which prohibits the purchase of other insurance by the insured, A. G. Gibson, without notice to the Milwaukee Mechanics’ Insurance Company does not conflict with and is not inconsistent with the so-called pro-rata clause which provides for the manner in which the distribution of a loss shall be paid between two or more insurers on a single loss.”
The second declaration oí law is as follows:
“That A. G. Gibson by his purchase of another policy of fire insurance on the same property without notice to this defendant (appellant), the Milwaukee Mechanics’ Insurance Company, has voided the policy sued on herein.”
The rule in this state and practically all of the states is to the effect that a clause in a policy to the effect that the procurement of additional insurance without the consent of the insurer renders the policy void is a valid provision.
This court said in the.case of Planters’ Mutual Insurance Company v. Green, 72 Ark. 305, 80 S. W. 151, that (quoting syllabus 2): “Where a policy of insurance contains' a clause avoiding the policy if insured procures additional insurance, the procurement of additional insurance without the insurer’s consent avoids the policy.”; and also said in the case of Nabors v. Dixie Mutual Fire Insurance Co., 84 Ark. 184, 105 S. W. 92, that (quoting syllabus 2): “Where a policy of fire insurance contains a clause avoiding- the policy if insured procures additional insurance, the procurement of such additional insurance without the insurer’s consent avoids the policy.”
Appellee contends, however, that while he does not question the general rule the so-called pro-rata clause which provides for the manner in which the distribution of a loss shall be paid between two or more insurers on •a single loss, amounts to the consent of the insurer that the insured may procure additional insurance without avoiding the policy. We do not think so, because the pro-rata clause and other similar clauses referred to by appellee as riders were a part of the policy and not mere additions to it. Wken the whole policy is read together the meaning is that the clause prohibiting the procurement of additional insurance renders the policy void unless the insurer consents to the procurement of additional insurance. We so no inconsistency between the clauses in the policy when they are read together and construed as stated above. Any other, construction of the meaning of the riders would render the clause prohibiting the procurement of additional insurance without the consent of the insurer void and of no effect.
The court should have granted appellant’s declaration of law number 2 and rendered judgment dismissing the complaint of appellee.
On account of the error indicated the judgment is reversed and the cause is dismissed. | [
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Holt, J.
This is an action for damages brought by Jack Rice, a minor, by his mother, Mrs. J. E. Rice, as next friend, and Mrs. J. E. Rice against appellant, Armour & Company, a corporation, and Ruby Rice, in the Crawford circuit court.
The complaint alleged that at the time of the alleged injury to Jack Rice that he and his brother, Ruby Rice, were employees of Armour & Company. The negligence alleged is that Ruby Rice, while employed by appellant company, and in the performance of his duties, and at a time when his brother, Jack Rice, was in a truck with him, as an employee of said company, drove and operated the truck at a dangerous, and high rate of speed, around a curve on highway No. 71 near Hatfield, Arkansas, and on account of such carelessness and negligence of Ruby Rice in so operating the truck, the same left the road, turned over, burned, resulting in injuries to appellee, Jack Rice, and sought damages in the sum of $60,000 on behalf of Jack Rice and for $10,000 on behalf of his mother, Mrs. J. E. Rice.
Defendant, Armour & Company, (appellant here), filed separate answer, denying every material allegation in the complaint and in addition alleged that Jack Rice was a trespasser on the company’s truck at the time of the alleged injury, and any injury received by him was due to Ms own contributory negligence.
Defendant, Ruby Rice, filed no answer.
Upon a trial to a jury a verdict was returned against both defendants in favor of Jack Rice in the sum of $30,000 and in favor of his mother, Mrs. J. E. Rice, in the sum of $3,000, or a total of $33,000. Appellant, Armour & Company, has appealed.
It is earnestly urged here by appellant (1) that the evidence, as reflected by the record, was not sufficient to go to the jury and warrant any recovery against it; and (2) that at the time of the alleged injury to Jack Rice he was not an employee of appellant; that the relationship of employer and employee and that of master and servant was not present, and, therefore, no liability could attach against appellant, Armour & Company.
The view that we take of this case makes it necessary for us to consider only appellant’s second assignment. If appellee, Jack Rice, were not in the employ of appellant at the time of the alleged injury clearly there can be no recovery.
On this question of employment we set out the following testimony:
Jack Rice is the brother of Ruby Rice, the son of Mrs. J. E. Rice, and at the time of the alleged injury was sixteen years of age.
Defendant, Ruby Rice, testified that he had been off a day and on the night before the alleged employment of his brother, Jack, and “. . . I told Mr. Martin I didn’t feel good and I had rather not make the trip. Q. What did he say then? A. He just said that I would be loaded and that I would go. . . . Q. What, if anything, did you do after that about obtaining an assistant on that trip? A. That week my wife and I had been staying in Van Burén; and my wife was working at the time and we were staying in Van Burén so mother could take care of the baby during the day and we had been staying over here all that week and I asked my brother the night before that about seven o ’clock, I asked him if he would go with me the next day, that I would pay him for going with me, that I would be paid back by Armour & Company, that I needed somebody to go with me and I asked him that night and we left the next morning and went over there.”
He further testified that they went to a cafe in Fort Smith; that' he walked around to the plant, the' truck was not yet loaded and that he returned to the cafe ‘ ‘ and Jack and I both went around there and by that time they had gotten it finished and I drove the truck out off of the loading dock around to the side of the gas pump and Jack climbed into the truck and Mr. Martin and I put gas in the truck and stood, there and talked.” This'witness also testified that Marion Gordon and Gene- Phillips were both inside, that “Carl Martin is the one who • came on the outside. ’ ’ ,
As to the actual conversation in reference to taking Jack along, this witness testified: “Q. Did you say anything to Mr. Carl Martin, the shipping clerli there, about taking Jack with you and who he was? A. I told him he was my brother and I was going to take him with me to help with the load. Q. What did Mr. Martin say with reference to that? A. He said all right. ,Q. Was that before or after Jack got in the truck? A. I think at that time he was in the truck, he was either standing by it or in it, I am not positive about that. Q. Why did you take him along? A. To help me unload. Q. Did you have anybody’s consent or approval? A. I told Mr. Martin that he was my brother and that I was taking him along to help me unload and he said all right. Q. That was Carl Martin, the shipping’ clerk? A. Yes, sir.”
And, further in reference to this proposition, he testified: “Q. Did you on this day when you arranged with your brother, Jack, to go along on this trip request or get any help? A. I didn’t feel good that morning, I had been sick a day or two before that; I didn’t feel very good and didn’t want to be out all day by myself and didn’t feel like I could make the run by myself. Q. Had you brought that to. the attention of any employee over there? A. I told Mr. Martin the night before. Q. The man who had charge of sending out the trucks?. A. Yes, sir. Q. Is that the reason you took Jack along? A. Yes, sir. Q. You needed help? A. Yes, sir. Q. On previous occasions when you had employed someone to go along with you as you stated you had the authority from Mr. Gleason to do and you paid them, state whether .or not, if you had been reimbursed by the company for that? A. Yes, sir, I had.”
Jack Rice, appellee, testified that his brother, Ruby, on the night before complained of not feeling well and asked him to go with him on the trip, promising that he would pay him, and stated: “We got up at two o’clock and caught a cab and went to Fort Smith and went to the Wide Awake Cafe and then Ruby got up and went around to Armour & Company and then came back, the truck wasn’t loaded and then he drank another cup of coffee and then we went, around to Armour & Company and went on from there. Q. You went to the plant of Armour & Company on Rogers Avenue? A. Yes, sir. Q. Was the truck there being loaded and being made ready for the trip? A. Yes, sir, when we got there, the truck was being locked >up; it was all loaded and they were locking the door. . . . Q. Did Ruby say anything there about your going along? A. The man that had been loading the truck talked to Ruby and Ruby said, ‘This is my brother, Jack, and I am taking him along to help me work,’ and the man said, ‘All right.’ Q. Did you know him? A. From the conversation, I took him to be Martin, that is what Ruby called him.”
Jack Rice further testified: “Q. Why did you make the trip on this day? A. Ruby said he was feeling sick and didn’t feel like making the whole run, he had been out quite a bit late too, but the main thing he offered me two dollars to go along and help. Q. Did you go along for the fun of riding the two hundred miles? A. It’s not much fun. Q. You went for the purpose of earning the money that you had been. promised? A. Yes, sir. Q. Did you work on that'trip? A. Yes, sir. Q. What kind of work did you do? A. I helped Ruby deliver the packages that he had to take into the stores. Q. In what way? A. At places we had to take packages into the stores, I helped carry them into the stores. Q. Do you know of your own knowledge how many places you made deliveries to that day? A. There were several, well over fifty.”
The above testimony was flatly contradicted in three written statements by Ruby Rice before the trial, one of which was sworn to, and by one written statement of appellee, Jack Rice. However, assuming, as we must, that the jury found this testimony to be true, it is our view that it falls far short of an employment of Jack Rice by Armour & Company, or of creating the relationship of employer and employee and master and servant. • In our view the most that can be said of the testimony presented by this record is that at the time of the alleged injury Jack Rice occupied the position of a mere licensee or volunteer.
We think it well settled that before one can claim the status of an employee he must be engaged by another person to perform work or services as directed and controlled by the employer and upon the latter’s promise to pay wages, salary, or compensation -for such services. There must be a contract between the employer and employee, and a meeting of the minds.
In 1st Labatt on Master and Servant, page 9, an “employee” is defined as “a person employed to do certain work for another under the express or implied terms of an agreement between them, and the master is to have the right to exercise control over the performance of the work, to the extent of prescribing the manner in which it shall be executed.” Other definitions on the same page of this work are as follows: “A servant is a person subject to the command of his master as to the manner in which he shall do his work.” . . .. “The test is this: Whether the person charged is under the control, and bound to obey the orders of the master.” . . . “A servant is one who for wages serves his employer, following his directions in performing the work.”
In 18 R. C. L., § 84, pp. 578-9, the author says: “The fact that the injured person is engaged in the work at the request of an employee does not take his case out of the rule. If the employee was without authority to bind the employer by the arrangement, the assistant is still no more than a volunteer. Nor is the rule varied by the mere fact that the employer knows of and consents to the arrangement.”
In the case of Grisson v. Atlanta & B. A. L. Ry., 152 Ala. 110, 44 So. 661, 13 L. R. A., N. S. 561, the court held (quoting headnote): “Mere knowledge and consent on the part of a railroad company to the fact that the brother of one who has been employed to keep water in a tank for the use of locomotive has, for a time, assisted in the work, does not charge the railroad company with the duty to him to maintain the machinery in a safe condition, so as to give him a right of action in case of injury by defects in it.” In the body of the opinion it is stated: “It is difficult to see how the mere fact that the employee had the intestate aiding him with the knowledge and consent of the master, could amount to an acquiescence on the part of the employer in said intestate’s assuming the place of an employee. At best, it could be but a recognition of the fact that said intestate chose to exercise the privilege of a licensee. ’ ’
In Smedley v. Mashek Chemical Company, 189 Mich. 64, 155 N. W. 357, the court held that the burden was upon the plaintiff to show that the relation of master and servant existed between the parties. In that case plaintiff was injured by the breaking of a ladder at a fire after he had been instructed by a Mr. Roberts, foreman of the plant, to climb the ladder and assist with the hose in putting out a fire. He claimed that he so acted in obedience to the request of the foreman. In that case the court held that the relation of master and servant did not obtain and there could be no recovery, and in reversing and dismissing the case said: “We have examined this record carefully, and are unable to find any evidence that warranted the court in submitting that question to the jury. There is no evidence in the case showing any contract of employment by the defendant, with the plaintiff, and in our opinion the trial court erred in submitting the case to the jury on any such theory.”
On the whole case, it is our view that the trial court erred in refusing to instruct a verdict in favor of appellant, Armour & Company, as a matter of law, and since the case seems to have been fully developed, it will be reversed and dismissed. | [
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