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Larry D. Vaught, Judge.
Claimant Rick W. Dillard appeals from the Arkansas Workers’ Compensation Commission’s holding that his claim for permanent-partial disability benefits was properly dismissed for lack of prosecution and that each of his subsequent claims were time barred. We reverse the decision of the Commission and remand for an award of benefits.
The facts of this case are not controverted. Dillard injured his right wrist after slipping and falling on January 17, 1997, while working as a law-enforcement officer. As a result of this fall, Dillard sustained a compensable injury (a torn wrist ligament). Because the injury was deemed compensable, Dillard’s employer paid for his medical treatment following the injury (its last payment for Dillard’s medical services was tendered on June 24, 1998). Throughout the treatment period, Dillard continued working in a light-duty capacity.
Dr. James F. Moore, M.D., treated Dillard’s injury. Dillard was released from Dr. Moore’s care in the winter of 1997. At the conclusion of Dillard’s therapy, on December 4, 1997, Dr. Moore assigned a ten percent permanent-partial impairment rating to Dillard’s right-upper extremity. Despite Dr. Moore’s conclusion, Dillard’s employer refused to pay any permanent-disability benefits.
Presumably, this refusal prompted Dillard to retain legal counsel. After retaining his first attorney, Dillard filed a claim for benefits using the Commission’s AR-C form. Dillard signed this AR-C on March 3, 1998, and it was filed with the Commission on June 5, 1998. This claim was dismissed — without a hearing — on February 25, 1999, for lack of prosecution. His claim was refiled in 2000, and then filed again (after retaining another attorney) in 2002. Dillard’s new attorney requested, and was granted, a hearing in conjunction with the 2002 refiling.
Following the 2003 hearing, the Administrative Law Judge (ALJ), and ultimately the majority of the Commission, found that Dillard’s 1998 AR-C was properly dismissed for lack of prosecu tion. The ALJ noted that, according to the record, Dillard did not object to the administrative dismissal of this claim. The ALJ further reasoned that all subsequent claims were time barred. This appeal followed.
In considering appeals from decisions of the Commission, we view the evidence and all reasonable inferences therefrom in the light most favorable to the Commission’s findings and will affirm the decision if the findings are supported by substantial evidence. Williams v. Browns’ Sheet Metal/CNA Ins. Co., 81 Ark. App. 459, 105 S.W.3d 382 (2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
In our review of the Commission’s conclusion, we first turn our attention to the allowable time for filing a claim for benefits as set out in Ark. Code Ann. § 11-9-702 (Repl. 2002). This statute recognizes two types of claims. Subsection (a) covers an initial claim — a claim that is filed prior to receiving any benefits. Initial claims must be filed within two years of the date of injury. After filing an initial claim, one must request a hearing within six months. If, at the expiration of the six months, no hearing request is made, the claim may be dismissed without prejudice. However, the dismissal must be preceded by a motion requesting such relief, and a hearing.
The second type of claim — a claim for additional benefits — is set out in subsection (b) of the statute. According to the statute, in cases where any compensation has been paid, the claim for additional compensation, including disability or medical, will be barred unless filed within one year from the date of the last payment of compensation or two years from the date of the injury, whichever is greater. Further, a hearing request must be made within six months of the filing, or the claim may, upon motion and after hearing, if necessary, be dismissed without prejudice. Once a claim is dismissed, the claim is considered to have never been filed, and unless a new claim is filed within the statutory period of time allowed by section 11-9-702, the statute oflimitations will bar any subsequent claims.
Thus, the focus of this appeal is the 1998 AR.-C claim form that Dillard filed. Dillard’s claim was made on a form provided (and presumably designed) by the Commission. The form has a section entitled “Claim Information.” The section has two parts that are relevant to this case. The first portion of the form states, “If this claim is for initial benefits (no benefits, either medical or indemnity has been received), what compensation benefits are you claiming?” Underneath this sentence, there are seven blanks beside different types of benefits. The other relevant portion of the AR-C’s “Claim Information” section questions, “If this claim is for additional benefits, what specific benefits are you claiming?” The same seven blanks listed in the initial benefits section are listed underneath this question.
Dillard’s attorney at the time filled out his claim form and checked only the “Permanent Total Disability,” “Rehabilitation,” “Attorney Fees,” and “Medical Expenses” boxes located under the “initial” benefits section. However, because Dillard’s employer had previously paid all of his medical expenses, the claim' should have been one for “additional” benefits. His form had no checked boxes under the additional benefits section, and the law requires that “a claim for additional compensation must specifically state that it is a claim for additional compensation. Documents which do not specifically request additional benefits shall not be considered a claim for additional compensation.” Ark. Code Ann. § ll-9-702(c) (Repl. 2002).
After Dillard failed to timely request a hearing, his employer moved for the claim to be dismissed. Significantly, the dismissal request was made under Commission Rule 13, which allows a dismissal without a hearing after notice to the parties pursuant to Ark. Code Ann. § 11-9-702(b)(4), the portion of the statute relating to additional benefits. The ALJ granted the motion and dismissed “pursuant to Rule 13 for lack of prosecution, without prejudice, with a refiling within the limitations set out in Ark. Code Ann. § ll-9-702(b).”
In the subsequent ALJ opinion that barred Dillard’s later-filed “additional” claims because the limitations period had run, the ALJ noted that Dillard’s “original AR-C filed with the Commission on June 8, 1998, requested only initial benefits and as the law at that time required that a claim for additional benefits had to specifically state that it was a request for additional benefits or it would not be considered a claim for additional benefits.” Notably, the ALJ also concluded that “[b]ut for the claim being barred by the statute of limitations, [Dillard] would have at least been entitled to his impairment rating for his compensable wrist injury.” This second ALJ opinion was affirmed and adopted by the full Commission. Dillard asks this court to reverse the Commission’s decision and reinstate his claim.
The resolution of this appeal is not dependent on how Dillard’s 1998 AR-C claim is classified. Regardless of whether his request is classified as an “initial” claim or an “additional” claim, he is entitled to benefits. First, if the claim is classified as a claim for “additional” benefits (despite the fact that the wrong boxes were checked) then the claim, because it was timely filed, tolls the statute of limitations. Spencer v. Stone Container Corp., 72 Ark. App. 450, 38 S.W.3d 309 (2001). This tolling is based on this court’s observation that “[i]f the statute is not tolled when the claimant files a claim for additional benefits, what could possibly toll the statute? We prefer to think that the statute means what its plain language implies.” Bledsoe v. Georgia-Pacific Corp., 12 Ark. App. 293, 295, 675 S.W.2d 849, 295 (1984).
In support of the proposition that the 1998 claim is more properly classified as an “additional” claim, the fact that it was dismissed pursuant to the Commission’s own rules designed to deal with “additional” claims is relevant. Further, the fact that the dismissal occurred without a hearing, which is not an acceptable option (according to the statute) for “initial” claims, is persuasive. This approach — dismissal without hearing — is only statutorily acceptable in “additional” claims.
In the instant case, Dillard filed a form AR-C requesting benefits that he had not previously received— permanent disability benefits, rehabilitation, and attorney fees. It is also relevant that Dillard’s treating doctor opined that Dillard was entitled to a ten percent impairment rating to his upper-right extremity. After Dillard’s employer refused to pay for his permanent impairment, the claim was filed. In his claim, Dillard identified that an attorney had been retained to pursue the claim and requested “additional” benefits— benefits that had not previously been provided to him. It is also clear that his employer had previously provided benefits. To hold that a claim form requesting benefits, where an employer had previously provided benefits and a claimant has previously received benefits, is not a claim for “additional” benefits is a classic example of form over substance.
However, if we were to find that the strictures of our state’s workers’ compensation legislation require a finding that, because of Dillard’s failure to technically comply with the “call” of the form, his claim was not one for “additional” benefits, then question remains — what type of claim did he file? If it is not an “additional” claim, and all claims (according to the form) are either “additional” or “initial,” then his claim must have been for “initial” benefits. Under this second scenario, if Dillard’s claim is classified as an “initial” claim, the Commission must also be reversed. As noted above, in claims for initial benefits, the claim cannot be dismissed without a hearing. Dillard’s claim was dismissed without the ALJ first conducting a hearing. This is a clear violation of Ark. Code Ann. § ll-9-702(a).
In sum, whether Dillard’s 1998 AR-C is classified as an initial or an additional claim, he is entitled to benefits. As discussed above, the Commission affirmed the ALJ’s finding that “but for the claim being barred” Dillard would have been entitled to benefits. Because we have concluded that there is insufficient evidence to support the Commission’s finding that Dillard’s claim was properly dismissed, we reverse the decision of the Commission and remand for an award of ten percent permanent-partial impairment to Dillard’s right-upper extremity.
Reversed and remanded.
Stroud, C.J., and Hart, J., agree. | [
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By the Court,
Ringo, O. J.
The only question presented for the decision and judgment of this Court, is this: Does the law regard the instrument given on oyer as the foundation of the suit, as being unsealed ? If it is sealed, the declaration describes it truly, and the judgment upon the demurrer is wrong; but, if it be not sealed, the judgment is right.
It is precisely such an instrument as was adjudged by this Court, in the case of Jeffery vs. Underwood, 1 Ark. Rep. 108, to be sealed, and of course a writing obligatory, and is admitted by the defendant; but he insists that the law respecting such instruments has been since changed by the 3d sec. of Chap. 30, Rev. St. Ark., which enacts, that “ every instrument of writing, expressed on the face thereof to be sealed, and to which the person executing the same shall affix a scrawl,by way of seal, shall be deemed and adjudged to be sealed.” The language of this statute is affirmative, and merely declaratory of the law as it existed before. It neither establishes a new rule nor abrogates an old one, but makes the rule certain, which was previously controverted, that an instrument in writing, containing on its face any expression that it is sealed, and having a scrawl affixed to it by the obligor or maker, by way of seal, shall be deemed and adjudged to be sealed. This we conceive to be the true meaning and construction of this statutory provision, and such is the effect, literally, of the language used. The common law, as is well known, anciently admitted as a seal nothing but an impression made upon some tenacious substance, but this practice has long since been measurably, if not en tirely. disused and supplanted, or superseded, by the practice of affixing a scrawl, by way of seal, to the instrument, after or opposite the signature of the obligor. Now, suppose an instrument in writing was duly sealed in the ancient mode, with an impression made upon some tenacious substance, instead of scrawl, either with or without an expression on the face of the instrument, or in the body of the writing, that it is sealed, would the law consider such instrument as sealed, and attach to it the same consequences and force as if it was executed, in every respect, in strict conformity with the provisions of this statute ? We apprehend it would, because such would be their effect under the previous law; and the statute under consideration contains no negative words; and, therefore, according to the rules laid down by the most learned judges and authors for the construction of statutes, the old law, so far as it is not in conflict with the statute, is not thereby abrogated or repealed; and, for these reasons, the Court, in our opinion, erred in adjudging the instrument of which oyer was given, unsealed, and thereupon sustaining the demurrer to the declaration. The instrument has upon its face a scrawl, purporting, and substantially averred, in the declaration, to have been affixed there by Byrd, by w.ay of seal, containing within it the word “ seal,” distinctly written and expressed; and this, we conceive, places it within the provisions of the statute: but, whether within its provisions or not, it must be regarded as a sealed instrument: and if, in fact, the scrawl was not so affixed by the defendant, it is not binding upon him, and he may well put that fact in issue by an appropriate plea; but, until he does so, it must be adjudged his deed.
Judgment reversed. | [
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By the Court,
Ringo, C. J.
The return, as to Owens, is manifestly defective, in not showing, as required by the statute, that the writ was executed upon the defendant, Owens, in any manner prescribed by law. When such process is executed otherwise than by reading the writ to the defendant, the officer must deliver him a copy thereof, or leave “ a copy thereof at his usual place of abode, with some white person of the family, over fifteen years of age;” and in making out his return, the officer is required to “ set out how, and in what manner, he executed the same.” Rev. Stat., Chap. 116, sec. 13, 20. The return before us omits to state, that the copy of the writ, left for the defendant, at his usual place of abode, was left with a white person of the family “ over fifteen years of age,” as required by law, and therefore, said defendant was under no legal obligation to appear and answer the action, and was not legally in default in failing to do so. Consequent^, the Court erred in giving judgment against him by default.
Judgment reversed, and case remanded. Case to proceed as if Owens had been served with process. | [
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By the Court,
Dickerson, J.
The plaintiff in error insists, that there was no debt due by Oliver to Gray, but to them jointly, as partners. “We apprehend there is nothing in the contract consti tuting them partners. There is certainly no community of profit and loss arising out of their agreement. It amounts, in our opinion, to a mere joint interest in the horse alone, and an agreement on the part of Oliver to pay Gray one-half of the actual expenses incurred in keeping him. , They styled themselves partners in the contract, yet the nature and terms of the agreement clearly show they are merely part owners. Nicholl vs. Mumford, 4 J. C. R. 529. Ex parte Parry, 5 Ves. 575. 3 Kent's Com. 16, 17. The debt accrued to Gray, in his individual character; and, as it was mutual, and subsisting with Oliver’s demand against him, it was a proper subject pf set-olf.
Judgment affirmed. | [
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By ike Court,
Lacy, J.
The statute requires that a non-resident plaintiff shall, before he institutes his suit, cause an obligation to be filed; and it surely requires no argument, to show that an obligation must be sealed. The instrument filed' in this case, is not sealed, and, therefore, deficient in one of its most important requisites. The term obligation, as here used, must be taken in its common-law definition. The statutes of this State make no difference between sealed and unsealed instruments, as regards their evidence and consideration. The only material difference that we are aware of, arises upon the statute of limitations; unsealed instruments being barred in three years from the time the cause of action arises; sealqd instruments, in five years.
The motion to dismiss ought to have been sustained.
Judgment reversed. | [
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By the Court,
Lacy, J.
The questions raised upon the assignments of the demurrer are most? if not all of them, frivolous; but, whether good or bad, are merely matters in abatement, and therefore could not be taken advantage of upon demurrer. The declaration contains two breaches. The first charges the sheriff for collecting the money and failing to pay it over, upon the execution. This breach contains no demand and refusal, and of course would b'e held to be bad. There is no cause of action accruing against the sheriff, in this form of action, for his collecting of money and failing to pay it over, unless the plaintiff avers a demand and refusal.
The second breach charges the sheriff with a failure to return the execution according to law. We hold this breach to be good. The words of our statute expressly make him liable, if he fails to return the execution, or makes a false return. The act declares, that, “ if any officer shall not return any execution that comes to his hands, on or before the return day therein specified, or shall make a false return thereof, he shall be held liable, and bound to pay the whole amount of money in such execution.” Language cannot be more explicit or peremptory than this. The second breach is, therefore, properly assigned.
Judgment reversed. | [
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By the Court,
Dickinson, J.
The object of process is to give the party reasonable notice of the time and place at which he is to appear, and to apprize him of the cause of action, and to whom he is bound to answer. In this instance, the summons clearly shows the time and place specifically; and we should have held it to be good, if it had merely stated “ upon the first day of our next October term.” The law fixes that time, and the party is presumed to know it; but here the summons has gone further, and stated with accuracy the very day on which the Court was to be held. The notice being good, no objection lies to it.
Judgment reversed. | [
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Mr. Justice Dickinson
delivered the following opinion: There are two points raised, in this cause. The first is a question of set-off, and the second, whether, under our statute, the right of action survives. Both of these questions depend upon the proper construction to be put upon our statutes prescribing the rule'in such cases. We will first dispose of the question of survivorship.
According to the principles of municipal justice, both in England and in this country, as the law now stands, where two or more payees or obligees have a joint interest in a bond or note, and one of them dies, the right- of action survives to the other. This principle, it is believed, pervades the whole system of modern jurisprudence, and it is, certainly, one every way consonant to justice and equity, affording freedom to commerce, and increased facilities in the remedies on choses in action. To fetter or to confine it would certainly be to retrograde in the science of law, and to deprive ourselves of the benefit of the general improvement of the age. We deem these remarks strictly applicable, because they go to qualify and explain general terms in our statute, which seem to indicate a different doctrine. The &h sec. of Ch. 58, of the Revised Code, p. 476, declares, that “all survivorships of real and personal estate are forever abolished.” Now, the inquiry is as to the meaning of this sentence. Was it intended to abolish the right of action surviving to a joint payee or obligee, and confine us to comparatively encumbered remedies? or, was it to prevent this very state of things that the whole sentence was inserted?
In order to ascertain the true meaning of the act, we will first inquire what was the old law, the mischief and remedy upon this subject. The territorial law declared, that the doctrine of survivorship, in cases of joint tenancy, should never be allowed. Now, it is apparent, that the Revised Statutes only re-affirm and re-assert that principle. All the States in the Union have similar provisions, and they are all upheld by alike high and patriotic considerations. The doctrine of entails and primogeniture, and the jus accrescendi, and the abolition of all patents of nobility, were the feudal badges which the American governments intended to sweep away, and thus break down all hereditary family succession, by unfettering property, and distributing it equally and justly among all the members of society. What is the meaning of “ all survivorships of real and personal estate ?” It means that kind of an estate that springs out of a joint tenancy. To constitute a joint tenancy, there must be a unity of interest, of title, of time, and possession, and this usually relates to realty, although it is sometimes true in regard to personal estate. The destruction of any one of these unities will terminate the joint tenancy. 2 Black. Com. 185. Co. Lit. 193. Joint tenancies are now regarded with so little favor, both in courts of law and equity, that, whenever the expression will admit of it, the estate shall always be regarded as held in common. Fisher vs. Wigg, 1 P. W. 14, n, 1 Ld. Raym. 622. And Lord Cowper says, that a joint tenancy, in equity, is an odious thing. Things personal may be held in joint tenancy; as, if a personal chattel be given to two or more, absolutely, they are joint tenants thereof, and, unless the jointure be severed, the same doctrine of survivorship will take place as in lands and tenements. 2 Black. Com. 399. 1 Vernon, 488. Between partners in trade or farming, generally speaking, there can legally be no survivorship, as to personal property, in possession; for each of their respective shares goes to their personal representatives, and they become tenants in common with the survivor, the maxim being inter mercatores jus accrescendi locum non habet. Co. Lit. 3, 282, 182, a. A court of equity will bar survivorship, although the deceased wished the stock to survive. And if two persons take a farm, the lease will survive, but, if they lay out money in the way of trade, that shall not survive. Although there is no survivorship as to partnership property, in possession, yet, according to the principles of the common law, there is, as to choses in action; for, when one or more partners, having a joint and legal interest in a contract, die, an action against the parties must be brought in the name of the survivor; and'-the executor or administrator of the deceased cannot join; neither can he sue, separately, but must resort to a court of equity to obtain from the survivor the testator’s estate. 1 East. 497. 2 Salk. 441.
These principles clearly show, that the kind of survivorship that the Legislature instituted to abolish, as to personal estate, related alone to a joint tenancy in such estate, and to the rents and profits issuing out of the realty. It was where the whole interest in an estate passed, and where the survivor took all that the act abolished, and not the mere right of action, which would always pass or survive to a co-obligee. Now, as to choses in action, as notes, bonds, and the like, there never was any survivorship, if they were given in any way of trade. And this shows, that the survivorship in relation to personal estate, which the Legislature abolished, was never intended to include such a case. And the general words of the act must be taken in a qualified sense; for, unless that be done, they will defeat the very object and intention of the statute. Instead of remedying the evil, it would produce the very mischief intended to be cured. It would operate to the prejudice of trade and commerce, by encumbering the remedies by which rights would be asserted. Such a construction put upon the act, would be in direct derogation of all the principles of commerce, which are now so firmly and beneficially established among all civilized nations. And men, instead of being encouraged to join their means and efforts together, for important objects and ends, for trade and other purposes, would stand aloof from each other, if, upon the decease of one partner, the other had not the sole right to wind up the business. We think this principle, so completely and intimately blended as it is in our commercial relations, too plain to require further illustration or argument.
We apprehend there can be but little difficulty in putting a right construction upon our act of set-off. which declares, that “ where two or more persons are mutually indebted to each other, by judgments, bonds, bills, notes, bargains, promises, accounts, or the libe, and one of them commences an action against the other, one debt may be set off against the other, although they may be of different natures.” This is the first section of the act. The fifth and sixth sections provide, “that, if the amount set off be equal to the plaintiff’s demand, he shall recover nothing by his action; if less, he shall have judgment for the residue; and, if there be a balance due from the plaintiff to the defendant, judgment for that amount shall be rendered in his favor.” The very language of the first section of the act clearly shows what kind of debts might be set off one against the other. They may be of different grades, but the persons themselves must be mutually indebted to each other, for so the act declares. What is the meaning of the term, “ when two or more persons are mutually indebted to each other?” The mutual indebtedness of the parties is precisely the same as if they were respectively or jointly indebted; and the one expression is precisely tantamount to the other. And this principle is not varied because our act makes a joint contract a separate one. In that case, the paities cannot be said to be mutually indebted, but they are jointly or separately indebted, as they elect to treat the contract. Again, our act declares, if one of them commence an action against the other, one debt may be setoff against the other: the latter clause of the sentence still affirming and re-asserting, that the parties to the suit can alone set off mutual debts or demands. The mutuality of the persons being thus clearly established, it expressly negatives the idea that a joint note may "be set off against a separate, or e con-verso. This mutuality of indebtedness may have existed when the right.accrued, or it may have arisen by the assignment of a demand, by another, or by operation of law. If a plaintiff’s demand exceed the set-off, he is entitled to judgment for the residue. Now, will you give him a judgment upon a joint demand, when there can be no mutuality of indebtedness, and against a party who never owed him any thing, and who, of course, cannot be said to be indebted to him? If such had been the intention of the act, would it not have expressed it so? If the defendant’s demand exceed that of the plaintiff, he is entitled to judgment for the residue. How shall he take judgment over? Shall his co-defendant, as we.ll as himself, be entitled to a judgment upon a separate demand? Unquestionably not. All the States of the Union have statutes upon the subject of set-off, and most of them are very similar to our own. The language of some is, doubtless, more exact and certain than that of others, but we are not aware that, in any State, joint demands have ever been set off against several demands, or e converso. Most of these statutes, too, convert joint liabilities into several obligations. The New-York statute declares, that, if there be several defendants, the set-off must be due to them all, jointly. Here the statute is express; and, although the language is more accurate than the terms used in our act, still, we hold the words mutually indebted to each other, and where one commences suit against the'other, that these debts are matters of set-off, are fully as clear and certain as the New-York act. Babington on Set-off, 37. Ex parte Hanson, 12 Ves. 446. 1 Leigh, N. P. 157. Chit, on Con. 329. Parker vs. Nicholas, 4 Rand. 359. The language of the Kentucky and Tennessee statutes is very similar to ours, and the courts, we think, have put a similar construction upon them.
And therefore, we are of opinion a joint demand is not allowed to be set off against a separate one, or a separate against a joint demand. In this case, however, the act of survivorship showed the whole right of action in the defendant below; and the demands, by operation of law, being mutual, and subsisting at the time of the institution of the suit, one claim was properly allowed to be set off against the other.
Mr. Justice Lacy concurred. | [
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By the Court,
Dickinson, J.
The statute (sec. 3, ch. II) of assignments expressly declares, that nothing in the act authorizing assignments, “shall change the nature of the defence, or prevent the allowance of discounts or offsets, either in law or equity, that any defendant may have against the original assignor, previous to the assignment, or against the plaintiff or assignee after the assignment.
The defendant below, in his plea of off-set, expressly avers the indebtedness of the assignor to him, “ before and at the time of the endorsement of the said writing obligatory,” arid certainly brings himself within both the letter and spirit of the statute. The plea is in all respects sufficiently formal, and, in our opinion, the court erred in sustaining the demurrer to this plea. x
Judgment reversed. | [
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By the Court,
Dickinson, J.
it is true, the bill of exceptions does not state that all the evidence is set out. But we do not conceive that it was one of those cases in which the presumptions of law are in favor of the verdict, upon the ground that there may have been other sufficient evidence to support it. The depositions were read. We are ignorant of the influence they may have had upon the finding <of the jury; and it is presumed they had some influence, or the plaintiff below would not have introduced them. We have declared they were not proper testimony. Upon the same principle, this court will set asi'de a judgment, where the judge, before whom the cause is tried, has erred in giving or refusing instructions. If a party applies for new trial, and, upon its refusal, appeals, he must then set out all the evidence, to enable the revising tribunal to see if there is any error in the proceedings of ihe court below, otherwise the judgment will be affirmed. This case does not come within the rule. It is enough to show the materiality of the testimony, and its direct application to the issue between the parties. Instructions abstract in principle, and testimony immaterial in the issue tried, would not authorize a court to reverse the finding. But such is not the case, in the present instance; and we can seé no sufficient cause for opening the judgment of this court.
Petition refused, and judgment reversed. | [
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By the Court,
Lacy, J.
The money that was collected was admitted to have been received on a judgment in. favor of the United States Bank; and the evidence shows that it came into the hands of one of the defendants, (Cummins,) and that he promised to pay the same over upon certain conditions, which were rejected by order of the plaintiffs. It was admitted that fifty dollars had been paid, by the agent of the plaintiffs, who employed the defendants to attend to the collection.
The principle is unquestionably true, that a party, to maintain the action, must be entitled to the legal interest in the suit. If the legal interest is shown to be in the plaintiff, the action will lie; if in another, it cannot be maintained. If there is a contrariety of testimony as to the person in whom the legal interest is vested, and that question is a matter of fact, to be determined by the jury, then of course it will be error in the court to take the question from the jury. There was certainly a conflict of testimony, as to the legal interest.
It is undeniably true, that a corporation can have no legal interest in any suit, after its act of incorporation has expired. This being the case, it is said that the first instruction was rightly overruled, because the charter of the bank had expired more than two years prior to the institution of the suit, and of course it was divested of all legal interest in the claim. '■ This would certainly be true, if the corporate name and capacity of the bank were not continued in force, by an act of Congress, approved March 2d, 1838, by which she is allowed to proceed to final judgment,. execution and satisfaction of her affairs. Latos TJ. S. vol. 9, p. 713. This act leaves her corporate name still in existence for these special purposes, and by it she is regarded as being entitled to have the legal interest.
Now, the refusal of the first instruction virtually took from the jury the question of fact as to the right of action. The court, by refusing to instruct the jury, that if they believed the legal interest was in the Bank of the United States, then they ought to find for the defendants, clearly decided the point, that there was no evidence tending to show that the bank was the' legal owner of the money. In this they were mistaken; for by admitting the proof that the money was collected upon a judgment rendered in favor of the bank, there was a presumption raised that the bank possessed the legal interest. This presumption was rebutted and contradicted by other testimony in the cause; but whether it was fully overthrown or disproved, was a matter for the jury, and not for the court, to determine, being a question of contested fact. The effect of the instruction is a practical denial to the defendants of a legal presumption in their favor, which the court had no right to deprive them of;'and, therefore, there is error upon this point.
The second instruction was correctly refused. The plaintiffs in error were not entitled to recover, without showing in themselves the legal interest in the suit. This they might do, by proving that they were legally entitled to the proceeds of the money arising from the judgment in favor of the bank, by assignment, or otherwise; and Cum-mins & Pike would then be chargeable in assumpsit, if the money was so collected, upon special contract, as the plaintiff’s attorneys, to collect the money for them.
Judgment reversed. | [
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By the Court,
Dickinson, J.
The appellants were indicted, below, for larceny of a horse: dining the progress of the trial, took several objections to the opinion of the Court: 1st, in regard to the challenge of a juror in behalf of the State, They then moved to exclude the evidence from the jury; which motion was overruled; and they thereupon moved several instructions, one of which was given, and the rest refused. The opinion of the Court was excepted to upon this point, and. the instructions were set out in the bill of exceptions. The counsel for the' appellants then moved for a new trial, which motion was overruled. They thereupon filed a bill of exceptions to the opinion of the Court, setting out the evidence in the cause, but failing to set out the instructions that were either given or refused. It has been so repeatedly held in this Court, that a motion for a new trial waives the exceptions taken at the trial, unless they are specifically put upon the record by the objections to the overruling of the motion for anew trial, that it is deemed unnecessary to say any thing further in support of such opinion. The motion for a new trial operates as a withdrawing of all exceptions previously put in; and the party having waived his right in regard to them, must stand upon his motion for a new trial; and, if that is adjudged against him, he cannot resort back to his exceptions, having voluntarily abandoned them. The verdict, and judgment of the Court, below, an. then left standing in full force, and the inquiry now is, were they warranted by the facts proved upon the trial, or is there such a preponderance of evidence against the finding, that this Court is bound to award a new trial?
"’.’he presumption is in favor of t! e verdict. Unless the record affirmatively overthrows this presumption, we cannot disturb it; and it raust do this in such manner as to show that manifest injustice and wrong have been done in the premises. The evidence is vague and disconnected, but still we can gather, from the whole tenor of it, and the connecting links that bi:;d it together, these facts: that one Cornelius, who was indicted, but not taken, told Manus, the witness, in the presence of Alfred Waller, that it was a good time to steal the horse; that Alfred assented to it; and, that the other two Wallers, Henderson and Roberson, afterwards, went to look for a mare, and, on returning, told the witness that it was a fit time, not only to steal the horse, but, also, to steal the mare. They engaged him to run the horse; the witness got provisions from Henderson Waller, and a gun from Roberson Waller, to bear expenses; and Roberson left his saddle at the back of the field, and gave him a clean shirt to wear; and Henderson Waller also gave him a counterfeit dollar; that they then appointed a particular place to meet witness; that Henderson Waller and Cornelius came, a short time afterwards, Cornelius having with him the home; that witness took him, and, two days afterwards, with the saddle that Roberson furnished, swapped the horse to Ranes, for a grey marc; and, subsequently, passed the mare to Alfred Waller, for thirty dollars in the store. Alfred Waller told another witness, that Manus had stolen the horse, and swapped him for a grey mare; that he must say nothing about it; that,-if he did, he would not live an hour; and that Manus had plenty of friends to assist him. The proof does not show at what precise time the horse was taken, but the larceny seems to have occurred shortly after the conversation with regard to stealing and running the horse, when all the parties were present; and, from the subsequent fact of his being delivered to Manus that night, and the agency that each had in the transactions, leaves it a matter of inference, for the jury to presume that all the Wallers, who stand convicted, were actually present at the taking and the stealing of the horse. If k clear,, they all advised it, mtd that each one played his part. Henderson furnished the provisions, and came with Cornelius, bringing the horse, and delivered him to Manus. The saddle he rode seems to be Roberson’s, and left at the back of the field, for the purpose of 'running the horse with. Alfred got the mare for which the horse was swapped, and said that Manus had plenty of friends to assist him. When these facts are taken in connection with each other, and that the horse was stolen presently after the conversation, it was but rational and proper for the jury to presume, that the parties were all then present and assisting, or near enough to aid, assist, and abet; and that being the case, they were all principals in the offence, and the jury were warranted in finding them guilty. Be that, however, as it may, there is, certainly, not a sufficiency of proof, in the record, to warrant us in setting aside the verdict.
Judgment affirmed. | [
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By the Court,
Dickinsojí, J.
The main point in this case to be decided is, had Henry A. Engles and William. Seamans a right to cancel and deliver up the agreement to convey a certain tract of land, executed by Seamans to Henry A. and William Engles, jointly, and substitute a deed in# fee to Henry alone, in lieu thereof?
This question presents no difficulty whatever. The facts upon the record clearly establish, that the agreement made by Seamans with Henry A. and William Engles, to convey a certain tract or parcel of land, was given to them jointly, and the purchasé money was paid by them both, Henry paying $100, and William, $100. Shortly after the agreement of the parties, William removed beyond the jurisdiction of this Stóe, and, during his absence, Henry and Seamans cancelled the agreement,- and substituted a deed in its stead, leaving out the name of William. And this they did without any authority, either written or verbal, from William. It is certain, that one party cannot alter and cancel a contract, without the consent and agreement o.f the other. All the parties to the contract must agree and consent to the change or alteration; and, as a general rule, the contract can only be dissolved or cancelled by an instrument of equal dignity with the one which created it. Henrjr and Seamans seem to have proceeded upon the ground of cancelling the agreement, and substituting another in its place, in which William was excluded, because William had, while absent from the State, directed Henry to sell his interest in the land, and to pay himself, for money advanced. This certainly gave him no power or authority whatever to take the deed from Seamans to himself. If he possessed any power at all, it only authorized the sale of the land to third persons. This proposition seems to us self-evident. The answer states, that the respondent, Henry A. Engles, has mortgaged the land to the Real Estate Bank of this State, and therefore the Bank ought to be made a party to this suit. There is no proof adduced to support this allegation, nor any mortgage exhibited; consequently, the Bank is not shown tq have ' such an interest as to entitle her to be made a party.
The Chancellor below has decreed, that the deed between Henry A.. Engles and Seamans be cancelled, and given tip, and a deed be executed b j Seamans, in like terms and tenor as the former, to Henry and William, jointly, and that the land be charged with thirty dollars and interest, as William’s equal half of the purqhase money, that sum being paid for him, by Henry. This latter part of the decree, we deem erroneous. We know no principle which would authorize the Chancellor to decree, that one partner, who had paid more of the purchase money than another, should hg.ve a lien in preference to other creditors, .for the excess of purchase money paid. The partners, or part owners, stand toward each other in the relation of vendor and vendee, in the purchase of real estate. Should one of the partners pay a greater amount than the other, to the vendor, then he can charge the amount against .him as a simple debt which the partnership owes, or against him'individually, as the equity of the case warrants. But this certainly constitutes no lien or mortgage upon the land. In this particular, therefore, the. decree of the Court below is erroneous, and must be reversed, and in all other respects affirmed, and this cause remanded for further proceedings. | [
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By the Court,
Dickinson, J.
The defendant, in whose favor there is a discontinuance of the action, is certainly entitled to a judgment for his costs, if any have, been expended by him. In the case before us, it appears there was no service upon James. He was never in court, and consequently l\as been put to no expense in defending the suit. Such being the case, he could have no judgment.
The place at which the Court was to be held, is, in our opinion, set forth with sufficient certainty. The defendants were required to appear “ before the Judge of our Circuit Court of Pulaski county, at the Court-house in the county aforesaid,” meaning, of course, the Courthouse in the county last named.
Although, as a general rule, it would, perhaps, be well to aver the non-residence of the defendant against whom a' writ goes to another county, yet this Court has declared that the omission to do so, is no cause of error.
The counsel refers to the case of Womsley vs. Cummins, in support of his motion for re-consideration. We have looked into that case; and, as regards the decision upon the writ, as the question was there presented, discover no valid objection to it. The plaintiff himself admitted the error, and it was upon his own motion that the writ was quashed and set aside. So, the general principle, as applicable to discontinuance, is correctly stated. Its application, however, to that particular case, may well be doubted, after Womsley had appeared and craved oyer, and filed his plea to the merits, thereby waiving the effect of the discontinuance, as to him; and so the Court has since, as we think, correctly ruled.
Judgment affirmed. | [
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By the Court,
Ringo, C. J.
The three first causes of demurrer specially assigned, are: 1st, That there is a variance between the writ and declaration in the names of the plaintiffs; 2d, There is a variance between the writ and declaration, in the capacity in which the plaintiffs sue; 3d, There is a variance between the writ and declaration, in the names of the assignees. These objections, if tme, are no bar to the action; and if they are available for any purpose, it can only be in abatement of the suit. And notwithstanding, anciently, after oyei'of the original writ, advantage thereof could be taken, either by plea in abatement, demurrer, motion in arrest of judgment, or writ of error, they would always, as we apprehend, have been waived by the interposition of a defence in bar of the action. Such is the effect of inverting, or failing to observe, the established order of pleading, as has been repeatedly ruled by this Court. See Dyer vs. Hatch, 1 Art. Rep. 339. Clark vs. Gibson, 2 ib. 109. Webb vs. Jones & Prescott, ib. 330. It is also well settled, that a general demurrer constitutes in law such defence; and, therefore, as no special demurrer can be filed, and nothing which is only ground of special demurrer at common law can now be specially assigned as cause of demurrer, we entertain no doubt that the Court below, as to these causes, decided correctly.
The fourth and fifth causes are: 1st, That there is a variance between the note given on oyer and that described in the declaration; 2d, There is a variance between the assignments on the note given on oyer, and the assignments as stated in the declaration. Upon comparing the note and assignments copied in th<itranscript of the record before us, with the allegations in the declaration, no substantial variance between them is perceived. Besides, it may be proper to remark, that oyer of the assignments was neither prayed nor granted; and, therefore, although they are copied in the transcript, they cannot be regarded as comprising a part of the record.
The sixth cause of demurrer specially assigned, is, that there is no averment in the declaration, that the defendant, Stone, had notice of the assignments of the note mentioned in the declaration. It is very clear, that notice of the assignment is not essential to the legal right of the assignees to maintain their action against the maker of the instrument; and, therefore, it is unnecessary to allege such»notice in the declaration, Rev. St. Ark. 107.
The seventh and eighth objections are: 1st, That no legal cause of action is set forth in the declaration; 2d, That the breach assigned is not as broad as the contract stated in the declaration, and that there is no venue to all the material allegations.
The note and assignments are not only substantially-, but specially and correctly, set forth, so as to show in the defendants in error an undoubted legal title to the instrument sued on, and also a right of action in their own names, by virtue of the provisions contained in the 11th chapter Revised Statutes, above cited. The breach negatives the payment of the debt demanded to the original payee or either of the assignees, and there is a proper venue distinctly laid to every material allegation in the declaration; yet, if there was not, such’ objection could not be taken advantage of on general demurrer; and;, therefore, wc are of the opinion that there is no error in the judgment, of the Circuit Court, in overruling said demurrer.
The remaining objection, that the judgment is given for too much-damages, is not sustained-by the record.
Judgment affirmed. | [
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Held, that, on an application for a supersedeas to an execution issued by a justice of the peace, if the transcript does not exhibit the execution, or a copy of it, but simply states that an execution was issued, this court, in the absence of affirmative evidence to the contrary, must presume that the justice acted in conformity to law, and refuse the-supersedeas.
But, if the execution is produced, and it appears that a ca. sa. issued, on an affidavit that the defendant, as the plaintiff believes, “is secret his property, or is putting it out of his hands, for the purpose of defrauding his just creditors,” and that the plaintiff verily believes that the debt will be lost or greatly delayed, unless an execution issue forthwith, this court will issue a supersedeas, without recognizance, the execution having improvidently issued, and without a sufficient legal affidavit. | [
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By the Court,
Ringo, C. J.
In giving judgment against Galloway, after the suit had been regularly discontinued as to him, without any subsequent appearance to the action, on his part, the Court unquestionably erred; and for this error, the judgment must be reversed.
But, in our opinion, there is no error in the judgment overruling the demurrer (o the declaration. The objection as to repugnancy could not be assigned, under our statute, as a ground of demurrer at common law; besides, the supposed repugnancy does’not, as we think, exist; for, although it is true that the pleader has introduced some unnecessary allegations as to the design and meaning of the instrument sued on, they are perfectly consistent with what we understand, from the instrument itself, to be the true legal interpretation thereof. There can be no doubt that the instrument bears interest from its date. The contract is to pay a specified sum of money, twelve months thereafter, to bear interest, &c. The legal presumption is, that the parties to the contract contemplated its performance, according to the terms stipulated: that is, that the principal debt would be paid at the expira-, tion of twelve months, and the interest accruing thereon at the end of every three months from the date of the contract; and there is nothing in it to warrant the conclusion that either party contemplated its nonperformance, and provided specially for such contingency; besides, it is such contract as, according to the well established rules of construction, must be construed most favorably to the obligee, and most strongly against the obligors; and this is the effect which the pleader has, by unnecessary averments, after setting out the instrument in hac verba, attempted to give it. The allegation as to where the instrument was made, is a substantive averment of that fact, but forms no part of the description of the contract, which is literally set out in the declaration. The breach as to the interest, as well as the whole contract, is well assigned, and there can be no doubt that the action is well conceived. The contract is for the payment of a certain sum of money, with interest at a specified rate, and at specified periods of time; but the limes were past when the suit was brought, and we can perceive no difference whatever between the right to sue and recover, upon a contract where the interest is stipulated to be paid quarter-yearly, and one containing a stipulation to pay the same per annum, or at the end of the year: in either case, as where a demand certain is payable by instalments, debt can be maintained after all the instal-ments are due.
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By the Court,
Dickinson, J.
The language in this case, as used in the opinion, must, of course, be construed with reference to the facts before the Court — with reference to the matter under consideration. Any other rule, in the language of an eminent jurist, “would misrepresent one judge, and mislead another.” Wherfi the Court remarks that the judicial powers of the respective judges must be, confined to the limits of their circuit, of course it must be taken in a qualified sense. The exception to the principle is contained in the constitution, which is, unless the Legislature shall authorize a temporary interchange of ridings. The argument upon the re-hearing of the case, although ingenious and forcible, has not been sufficient to satisfy the minds of the Court that the opionion previously expressed is erroneous. The definition of the term “ temporary,” although, in its literal acceptation, it may signify any portion of time less than the full period spoken of, still docs not warrant the conclusion that it is to be taken with such an unqualified meaning, and applied to the grant of the constitution. The word, as it stands in that instrument, must be governed by the meaning and objects of the grant, and its signification restricted by other parts and provisions of the constitution. A law that would authorize a judge to remain all but a small fraction of time out of the circuit for which he was .elected, and to hold but one court during the term of his service within his own district, would, to our minds, be a clear and palpable violation of the constitution. To hold such a law constitutional, would, in effect, break down all separate and distinct jurisdiction, which was the main and leading object of the convention to- establish; and it would virtually abrogate and destroy both the election and commission which constitute the judicial warrants of the judge for the exercise of his authority. And the law now before the court, is, in our estimation, subject to the like objection. There is a constant and uniform alternation and rotation of riding between the respective judges, which may last for all time to come, and therefore cannot be termed, in the constitutional meaning of the word, a temporary interchange of circuits. | [
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By the Court,
Dickinson, J.
The Court, in the case of Bertrand vs. Byrd, decided at the last term, held, that the clause “ in cujus rei” is not essential to a deed or bond, and that our present Revised Code does not change the law in that particular. The demurrer was, therefore, properly overruled.
It is too late to question the assignments. The defendant below should have craved oyer of them, as well as of the original obligations, if he wished to bring the fact of the assignments to the notice of the Court. He simply craved oyer of the originals. This was granted. The assignments are wholly distinct matters, and so it has been ruled in this Court, in the case of McLain et al. vs. Onstott, 3 Ark. 483. See, also, 1 Saund. 9, and 2 Salk. 498.
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By the Court,
Lacy, J.
The complainants seek to be relieved on the ground of fraud. All the material allegations of the bill are expressly denied by the answer, and the proof by no means supports the charge of fraud. .The answer denies that the obligation sued on was given in consideration of the assigned notes of Edwards and Carr, or that the respondent ever received any payment upon them. The bill does not state in express and positive terms that these notes constituted the consideration bf their obligation to the respondent, but it leaves a strong and almost unavoidable inference of that fact. There is no evidence whatever proving that the several notes of Carr and Edwards constituted the consideration of the complainants’ bond to the defendant. This fact then is disproved by the answer. The other allegation upon which the respondent is sought to be charged is, that while he had Carr and Edwards’ note in his possession by assignment, he received upon them the full amount of payment, which he failed to credit; and therefore, by his fraudulent representations, he induced John Clark and Oakley to take back these notes, and execute their own obligation in lieu of them; that the assignments were cancelled, and that they afterwards brought suit upon the notes; that upon the trial of the cause, Carr pleaded payment by Edwards to Benjamin Clark, and defeated their cause of action. The record in this suit is made part of the bill, but it was not produced, or offered to be read as evidence upon the hearing. This allegation is certainly not supported by the proof. The answer expressly and positively contradicts the whole of it. It states that the obligations of Carr and Edwards were delivered as collateral security, to secure the payment of John Clark and Oakley’s obligation; that Carr and Edwards were not represented as insolvent; that he never received any thing from them except $300 upon Carr’s individual note, upon which Edwards was security, and which was given up; and that-he accounted to the complainants for that amount. He insists that the suit of Claik and Oakley against Carr and Edwards was tried upon several pleas joined — a plea of payment to Clark and Oakley themselves, and a failure upon (heir part to execute their agreement with Carr and Edwards; and that upon the pleas and evidence adduced in support of them, a verdict and judgment were had, and not upon the plea of payment to himself. The testimony- by no means establishes that the respondent, while he held the notes of Carr and Edwards in his hands, ever received payment upon them. Carr himself fails to prove that he ever paid any thing to B. Clark. He merely states that he believes Edwards paid all the obligations except a small balance. But how or in what manner Edwards made the payment, or at what time, is left wholly to conjecture. This loose statement of Carr’s, then, establishes nothing. The statements of the other witnesses are equally vague and uncertain. McDonald only saw the notes in B. Clark’s hands, and calculated the interest on them, and examined the assignments, which were in Oakley’s hand-writing. These facts certainly do not show that the respondent received payment of or upon the notes; nor do they explain the nature or terms of the contract between the parties. Myrick states that Edwards had purchased $500 worth of groceries for Benjamin Clark, and Clark admitted that, should Edwards pajr for them, he was to credit Carr and Edwards’ notes, then in his possession, with that amount. There is no evidence that he paid for the groceries, or that Clark credited the ‡500 upon the note. This statement of the witness is a mere conversation with Benjamin Clark, which, from its indefiniteness, establishes nothing material as to the fact of payment. Again, it is made to depend upon a contingency, which is never proved to have happened. The answer then stands in full force, and it expressly disproves the allegations of the bill. Besides, the complainants have made the record in the case of John Clark and Oakley against Carr and Edwards a part of their bill; and although relying upon it to -show payment to Benjamin Clark, while he held the notes of Carr and Edwards in his possession, they have failed to produce it, or read it in evidence upon the hearing. Whether or not, under any state of facts, it would be competent evidence to charge Benjamin Clark, we do not feel ourselves called on to determine. One thing, however, is certain, that having appealed to the record for proof of payment to Benjamin Clark, they cannot be permitted to establish it by oral testimony; and in failing to produce it, the law raises the presumption that the production would have disproved the allegations of the bill. If it were possible that there could be any doubt upon the subject before, the non-production of the record not only disproves the allegation of payment stated in the bill, but it expressly affirms its denial in the answer, and overthrows the complainants’ only ground of equitable relief.
Reversed, injunction dissolved, and bill dismissed. | [
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By the Court,
Dickinson, J.
Although any question which may have arisen upon the demurrer, is waived by the subsequent pleading to the merits, we think it proper to remark,'that, in our opinion, the obligation is properly described in the declaration. The plaintiffs in error are charged with having executed it under their joint seal, in the name of the firm, Day, Williams & Co.
It is, as a general rule, true, that one partner cannot bind another’ by deed, without his consent; but the authorities fully establish the principle, that a signature and sealing, in the name of the firm, with a single seal, is good, and binds all the partners who are present, or assent to the execution. If none but the executing partner assent, it is still good as to him. 4 Mason, 232, and note thereto. The plea of payment necessarily admits the execution of the deed by all the partners.
The cáse of Crary vs. Ashley & Beebe, referred to by the plaintiffs in error, differs essentially from the one now before us, as to the manner in which the question of striking out pleas is presented. In that case, the defendants excepted to the opinion of the Court, and rested upon their bill of exceptions, duly signed, sealed, and set out upon the record. But here the party, by not making the plea stricken out a part of the record by bill of exceptions, acquiesced in the decision of the Court. The plea so stricken out forms no part of the record, and should have been wholly omitted, in the transcript. This objection, therefore, to the striking out of the plea, comes too late, and cannot now be considered.
The only remaining question for our consideration is presented by the demurrer to the plea of tender. We consider the law well settled, that, if a party covenants to pay in specific articles, he must meet his contract at the time and in the manner specified, Tender cannot be made after the day, unless the damages are capable of being reduced to certainty, by computation; nor can it be pretended that it is possible to do so, id this instance, without the intervention of a jury. Even if a party failed to make a defence, a writ of inquiry must issue, to ascertain the damages. It is, therefore, not one of those cases in which the doctrine of tender is applicable.
Judgment affirmed. | [
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By the Court,
Dickinson, J.
At common law, a party never was required to make profert of a promissory note: the reason was, that it, did not constitute the foundation of the action. It was only evidence of the debt, and its execution was required to be proved upon the trial. Profert was given upon sealed instruments, because they constituted the gist of the action, and it was required to enable the defendant to plead knowingly. ■ Oyer was granted upon profert being made; and, upon the making ofprofert, the party could then plead a special or general plea of non est fact,um, or set up any other defence which might defeat the cause of action. It was the grade of evidence that determined the character of the pleadings. A sealed instrument proved itself. Its execution might be denied, but its consideration could not be impeached.- Under our statute, the consideration of sealed and unsealed instruments may both be inquired into, and therefore there is a perfect equality in their grade of evidence. The production of each proves itself, and the consideration for which it was given. This consideration, in both instruments, is liable to be impeached in the same way, but he who impeaches them must do it by plea, supported by affidavit.
It certainly cannot be pretended, that it is not necessary to make profert of a sealed instrument under our statute. Promissory notes carry with them the same evidence of indebtedness that sealed instruments do; and the consideration of both being disproved in the same way, then it necessarily follows, that promissory notes, as well as sealed instruments, under our statute, should be made profert of. This view of the case is strengthened by the words of the act itself, (Rev. Si., chap. 116, sec. 65), which declares that, when any such instrument is lost or destroyed, an allegation to that effect shall excuse the want of proferí. This positive provision, making profert unnecessary under such circumstances, certainly implies that, in all other cases, except Where the instrument is Ioát or destroyed, profert should be alleged of promissory notes as well as of sealed instruments.
The second point presents no difficulty. The language of the act is clear and distinct, allowing ten per cent, interest per annum, after the note, bond, or bill, comes to maturity. Interest is given by way of damages, to compensate for the failure of the debtor to pay at maturity. Having failed, of course he is liable, at the rate as charged in the judgment.
Judgment reversed. | [
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By the Court,
Ringo, C. J.
There is, manifestly, a variance between the obligation described in the declaration and the one given on oyer, in this, viz: that the former is described as being payable generally, and not at any particular place, while the latter is expressly made payable in the Branch of the State Bank of Arkansas, at Batesville, which, according to the judgment of this Court, in the case of Sumner vs. Ford et al., 3 Ark. 389, is fatal to the pleading. The demurrer was, therefore, well taken, and ought to have been sustained. The breach is alsó insufficient to warrant the judgment, as given, for interest, as has been repeatedly ruled by this Court.
The obligation would, in our opinion, bear interest from its date, by virtue of the express stipulation in the contract to pay interest; but as no breach of this part of the contract is alleged, no judgment could legally be given for it. The plea of non est factum, was properly stricken out, for it could have been entirely disregarded, as has been often ruled.
Judgment reversed. | [
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By the Court,
Dickinson, J.
The garnishee moved the court to be discharged, because the plaintiff had failed to file.allegations and interrogatories within the time prescribed by the statute. The'statute lays down the rule upon the subject; but (hat part of it which reíales to the present case is merely a rule of- practice, td be controlled by sound legal discretion. The time for filing allegations and interrogations, like time for pleading, in ordinary cases, might doubtless be enlarged, upon a proper showing by the party. The enlarging of time to plead, is an every day’s practice; and the fact that they were permitted, to be filed after the time had expired, creates the presumption that the court deemed it proper to grant the indulgence. If, in enlarging the time, the rights of the garnishee were seriously affected, of course he could not be without remedy, or he would be allowed to come in and move to strike them from the files of the court, provided he made it appear that the indulgence ought not to be allowed. But here he rests, until the allegations and interrogatories are actually filed, and he asks to be discharged from the writ of garnishment; and he was discharged accordingly. It was improper to do this so long as the allegations and interrogatories were upon the file. The judgment of the circuit court is nothing more than discharging him from answering a legal process, which that court itself had put upon the record for the benefit of the plaintiff. The exception to the discharge was, therefore, well taken.
Judgment reversed. | [
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Held, that, if a suit is brought in the name of the President and Directors of the Branch of the Bank of the State (at Batesville, process cannot issue into counties other than that where the suit is brought, unless one of the defendants reside in the latter. | [
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Josephine Linker Hart, Judge.
This appeal is brought from an order quieting title to ten acres of land in the Arkansas Game & Fish Commission (AGFC). Appellants, who occupy approximately three of the ten acres, argue that the AGFC’s deed contains an indefinite description, which should not have been construed to pass title to the ten acres. We agree and reverse and remand the case.
The ten acres at issue are located in the SE 1/4 of the NE 1/4 of Section 11 in Newton County. Cave Creek meanders through the quarter in such a way that ten acres lie north and west of it. Appellants occupy three of the ten acres under a 1998 deed that contains the following description: “Part of the SE 1/4 of the NE 1/4 of Section 11, Township 15 North, Range 19 West, containing 3 acres more or less.” Appellants admit that their deed contains an indefinite description because it does not particularly locate the three acres within the quarter. Nevertheless, they have asserted a claim to three acres lying north and west of Cave Creek since 1998. In 2000, the AGFC received a deed conveying “that part of the SE 1/4 of the NE 1/4 containing? acres, lying West and North of Cave Creek.” Although the AGFC’s deed, on its face, conveyed seven acres, the AGFC interpreted the deed to convey the entire ten-acre tract lying north and west of the creek, based on the rule of construction that references in a deed to acreage are secondary to references to artificial and natural monuments.
In 2001, the AGFC attempted to remove appellants from the subject area by filing a criminal-trespass action. Appellants sued the AGFC to quiet title to their three acres. The AGFC answered that appellants’ title was void for lack of a definite description, and it counterclaimed to quiet title to the ten acres in itself. Alternatively, the AGFC asserted that, if it were not the titleholder of the ten acres by virtue of its deed, it was entitled to ownership of the property by virtue of its and its predecessors’ adverse possession.
On September 16, 2002, the AGFC filed a motion for summary judgment, arguing that its deed should be interpreted to convey all ten acres lying north and west of the creek. Relying on the above mentioned rule of construction, the AGFC argued that, if the deed’s reference to seven acres was removed from the description, as shown in the bracketed portion that follows, the deed would describe the entire acreage lying north and west of the creek as: “that part of the SE 1/4 of the NE 1/4 [containing 7 acres] lying West and North of Cave Creek. . . .” The AGFC’s motion was accompanied by the affidavit of its own surveyor, Steve Parish, and the affidavit of another surveyor, William Co-chrane, interpreting the legal description in the AGFC deed as transferring all of the land in the SE 1/4 of the NE 1/4 lying north and west of the creek.
Appellants, recognizing the infirmity in their own deed, responded to the motion by abandoning their quiet-title action and instead challenged the AGFC’s ability to quiet title to the ten acres on the strength of its own deed. They asserted that the AGFC’s deed was indefinite because it failed to identify which seven acres of the ten acres lying north and west of the creek were being conveyed. Appellants further argued that the AGFC was not entitled to have its deed reformed to reflect a conveyance of all ten acres lying north and west of the creek.
After a hearing, the trial court granted summary judgment to the AGFC and deleted the deed’s reference to seven acres. The court then entered an order interpreting the land description in the AGFC’s deed as follows:
All of the property lying West and North of Cave Creek in the SE 1/4 of the NE 1/4 of Section 11, Township 15 North, Range 19 West, Newton County, Arkansas.
The court did not address the AGFC’s claim for adverse possession, having ruled in the AGFC’s favor on the deed. Appellants now appeal from that order.
Normally, on a summary-judgment appeal, the evidence is viewed in the light most favorable to the party resisting the motion, with any doubts and inferences being resolved against the moving party. Clarendon Nat’l Ins. Co. v. Roberts, 82 Ark. App. 515, 120 S.W.3d 141 (2003); Tunnel v. Progressive N. Ins. Co., 80 Ark. App. 215, 95 S.W.3d 1 (2003). However, where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. See Browning v. Hicks, 243 Ark. 394, 420 S.W.2d 545 (1967); Clarendon Nat’l Ins. Co. v. Roberts, supra; Tunnel v. Progressive N. Ins. Co., supra. In the proceedings below, the trial court considered the issue regarding the interpretation of the AGFC’s deed as one of law, and appellants’ counsel agreed. On appeal, appellants do not argue that a fact question remains but ask us to review the trial court’s conclusion of law interpreting the AGFC deed as conveying ten acres. Therefore, the usual summary-judgment review standards do not pertain, and we will simply determine whether the AGFC was entitled to judgment as a matter of law. See Browning v. Hicks, supra.
In interpreting the AGFC deed as conveying all ten acres north and west of the creek, the trial court cited Dierks Lumber & Coal Co. v. Tedford, 201 Ark. 789, 146 S.W.2d 918 (1941), and Turner v. Rice, 178 Ark. 300, 10 S.W.2d 885 (1928), for the proposition that the acreage mentioned in a deed does not control the description of the granted premises. It is true that there are circumstances in which the quantity of acreage recited in a deed must yield to the land as described by monument, whether natural or artificial. Numerous cases have recognized that, where the quantity of acreage and the conveyance as described by monuments are in conflict, monuments are preferred to quantity of acres or distances in interpreting the deed. See Rodger v. Crain, 235 Ark. 211, 357 S.W.2d 527 (1962) (holding that, where a sales contract mistakenly recited boundary lines as being 330 feet when in fact they were about 270 feet, the corner-post monuments furnished the true description); Wyatt v. Wycough, 232 Ark. 760, 341 S.W.2d 18 (1960) (holding that incorrectly stated acreage does not lessen the certainty of the description where the description can be ascertained by reference to a river bed); Scott v. Dunkel Box & Lumber Co., 106 Ark. 83, 152 S.W. 1025 (1912) (holding that the quantity of land recited in a description will be rejected if it is inconsistent with the actual area of the premises as indicated and ascertained by known monuments and boundaries). Flowever, the trial court’s usage of that rule in the case at bar was not well founded and resulted in the trial court’s reforming the deed rather than merely interpreting it.
In the AGFC deed, there is no inconsistency between the quantity of land recited and the boundaries as shown by monuments, i.e., Cave Creek. In fact, the reference to acreage and the reference to the creek are easily reconcilable. The deed simply conveys seven acres and then locates those acres north and west of the creek. Thus, the conveyance itself is not described by the creek but solely by acreage; the creek is mentioned only as a directional indicator of where the seven deeded acres lie, i.e., north and west of the creek. As such, there is no need to elevate monuments over acreage, and the deed should be interpreted as it reads on its face, conveying seven acres lying north and west of the creek.
When that is done, it is apparent that the deed contains an indefinite “part” description. A deed containing an indefinite property description is void and does not constitute color of title. Belcher v. Stone, 67 Ark. App. 256, 998 S.W.2d 759 (1999). Further, an indefinite description conveys no title. See Browning v. Hicks, supra. The supreme court has recognized that deeds containing so-called “part” descriptions are void for uncertainty. See Higginbottom v. Higginbottom, 247 Ark. 694, 447 S.W.2d 149 (1969); Charles v. Pierce, 238 Ark. 22, 378 S.W.2d 213 (1964); Darr v. Lambert, 228 Ark. 16, 305 S.W.2d 333 (1957).
As the AGFC recognizes, a part description gives no indicators or keys as to how to locate the land. That is the situation before us. The deed conveys seven acres in a larger, ten-acre plot. However the boundaries of that seven acres are not ascertainable; it is not possible to discern which seven of the ten acres were deeded. Thus, like appellants’ admittedly indefinite deed, which does not locate its three acres within the forty-acre tract, the AGFC’s deed does not locate its seven acres within the ten-acre tract, and is likewise too indefinite to support an action to quiet title.
The dissent would alter the deed’s language to convey “all that part” of the quarter-quarter section lying west and north of Cave Creek. But that is, in essence, rewriting the deed. Further, we disagree with the dissent’s declaration that the words “that part of’ constitute a term of art that would mandate a conveyance of the entire ten acres. The phrase “that part” is not a term of art but simply a common way of indicating that something less than the entire parcel is being conveyed.
Based on the foregoing, we reverse the trial court’s summary-judgment order and remand the case to permit the AGFC to pursue its claim for adverse possession, should it choose to do so.
Reversed and remanded.
Pittman, Griffen, Neal, and Barer, JJ., agree.
Roaf, J., dissents.
In an action to quiet title, the plaintiff (or in this case, the counterclaimant) must recover on the strength of his own title and not on the weakness of the defendant’s title. Wyatt v. Wycough, 232 Ark. 760, 341 S.W.2d 18 (1960). Further, even though appellants’ deed is void for lack of definiteness, appellants, being in possession of part of the disputed property, may still challenge the validity of the AGFC’s deed. See Irby v. Drusch, 220 Ark. 250, 247 S.W.2d 204 (1952). | [
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Karen R. Baker, Judge.
Appellant, Gordon Gibson, appeals the trial court’s denial of his petition to terminate alimony provided to appellee, Connie Gibson, pursuant to the parties’ divorce decree. He raises three points on appeal: (1) The trial court erred in not finding the requests for admissions admitted due to appellee’s failure to file a timely response; (2) The trial court erred in failing to find that Michael Black and appellee, Connie Gibson, were living in the same household; and (3) The trial court did not have jurisdiction to modify the definition of cohabitation in the order. We affirm as modified.
The parties were divorced in 1999. The decree ordered Dr. Gibson to pay alimony for November and December of 1998 in the amount of $9000 per month; $3000 per month for twelve months beginning January 1, 1999; $2500 per month for twelve months beginning January 1, 2000; $2000 per month for five years beginning on January 1, 2001; and $1500 per month for four years beginning on January 1, 2006. The decree also included the following court-devised provision:
The alimony will terminate upon either party’s death or the remarriage or cohabitation by the Plaintiff [Connie]. Cohabitation means spending at least four nights per week from 12:00 p.m. until 6:00 a.m. in the same household with another party with whom the Plaintiff is not married or related.
On June 4, 1999, an order was filed based upon a joint motion from the parties to correct a clerical mistake concerning the alimony provision. The provision provided, in pertinent part:
Cohabitation means spending at least four (4) nights per week from 12:00 a.m. (midnight) until 6:00 a.m. in the same household with another party of the opposite sex with whom the Plaintiff is not married or related.
(Emphasis added to note changes in decree language). Neither party appealed the original order or the initial changes to the original order.
On June 14, 2002, Dr. Gibson filed a motion to terminate alimony and for reimbursement of alimony, alleging that Ms. Gibson had been cohabitating with Michael Black since July 1999. In that motion, he asserted that because Ms. Gibson was living with Mr. Black, alimony should be terminated and that Ms. Gibson should be required to repay him $81,000 in alimony that he had. paid since she had begun such cohabitation.
A return of service form filed in the record of this case states that a Keith C. Friedrich, an investigator, signed the return of service declaring that he had served a copy of the motion, along with a notice of hearing set, requests for admissions, and interrogatories “[b]y handing it to the person identified as Connie Gibson” at 7:13 a.m., on June 19, 2002, at 3850 Urban St., Wheatridge, Colorado. On that same date, these documents were faxed to the attorney who had represented Ms. Gibson in the divorce action.
Ms. Gibson filed an answer to Dr. Gibson’s motion to terminate alimony on June 21, 2002; however, no answers were filed regarding the requests for admissions or the interrogatories. The requests for admissions consisted of two requests:
(1) Admit that you are cohabitating with Michael Black as that term is defined in the Divorce Decree entered onjanuary 15,1999, and Order which was entered on June 4, 1999;
(2) Admit you did not notify Defendant you were cohabitating with Michael Black.
On August 8, 2002, Dr. Gordon filed a motion to deem facts admitted and for summary judgment based upon those deemed admissions. Ms. Gibson filed an answer to that motion on August 10, 2002, and an answer to the requests for admission on August 21. She amended her answer to the motion to deem facts admitted and for summary judgment on September 30, 2002, one day prior to trial, denying that she had been served with any requests for admissions and asserting that a factual question existed as to whether she was romantically involved with her tenant. In his reply to her amended answer, Dr. Gordon contended that Ms. Gibson’s failure to respond to the requests for admissions deemed them to be admitted, and he further contended that, because she was deemed to be cohabitating with Michael Black, there was no factual issue as to whether she was romantically involved with him.
At the hearing, the trial judge denied Dr. Gibson’s motion to deem facts admitted. The court accepted Ms. Gibson’s explanation that she was not served with the requests for admissions when she was served with the other documents filed in this case. The court noted that given the magnitude of what Ms. Gibson stood to lose, combined with her declaration that she had not received the requests, the court accepted her explanation and refused to deem the requests admitted. In addition, on its own motion, the court expanded the definition of “cohabitation” to provide:
Cohabitation means spending at least four (4) nights per week from 12:00 a.m. (midnight] until 6:00 a.m. in the same household with another party of the opposite sex with whom the Plaintiff is not married or related and with whom the Plaintiff has or has had an intimate or romantic relationship.
(Emphasis added to indicate addition).
The judge also denied Dr. Gibson’s motion for summary judgment. After hearing testimony on the motion to terminate alimony, the court denied that motion as well. Dr. Gibson appealed the denial of his motion, asserting three points of error.
We review equity cases such as this de novo on appeal; this court reviews the trial judge’s findings of fact and affirms them unless they are clearly erroneous. Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2003). To demonstrate that the trial court’s ruling was erroneous, an appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. Id.
Dr. Gibson first alleges that the trial court erred in not finding the requests for admissions admitted due to Ms. Gibson’s failure to file a timely response. He relies upon Rule 36 of the Arkansas Rules of Civil Procedure, specifically the statement that “[t]he matter is admitted unless,- within 30 days after service of the request, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection.”
Through the years, it has been the policy of our supreme court to require compliance with the rule governing responses to request for admissions by making it a practice of deeming the requests admitted when the responses are not on time. See Womack v. Horton, 283 Ark. 227, 674 S.W.2d 935 (1984). However, the particular facts of each case must be examined and, when the facts warrant, acceptance oflate responses is required. Id.
In this case, Ms. Gibson asserted that she did not receive the requests for admissions with the other documents served upon her at her home in Colorado. In the cases cited and relied upon by Dr. Gibson, the only issue was whether the requests had been answered in the time and manner required by Rule 36. We find this case factually similar to Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983). In Beck, there was a factual dispute as to whether the requests for admission were ever received. The trial court accepted the non-receipt as factual, and, in accepting that explanation as the reason that answers to the requests had not been filed, set aside a judgment entered pursuant to the admissions.
Similarly, the trial judge in this case accepted Ms. Gibson’s explanation that the requests were not timely answered because she did not receive them at the time the other papers were served upon her. The trial court found this explanation consistent with the fact that Ms. Gibson stood to lose a substantial amount of support in the pending litiagation. Therefore, we cannot say that the trial judge’s finding was arbitrary or groundless.
For his second point on appeal, Dr. Gibson alleges that the trial court erred in failing to find that Michael Black and Connie Gibson were living in the same household. It is undisputed that Mr. Black and Ms. Gibson were living in the same house. Ms. Gibson testified that Mr. Black was a tenant who paid rent to her for living in her residence. Dr. Gibson characterized this arrangement as Mr. Black contributing financially to the household.
The issue in this case is whether the judge’s finding that Connie Gibson and Michael Black were not living in the same household is clearly erroneous. Resolution of this question involves more than a determination of whether they were living in the same house, regardless of whether they were romantically involved. The trial judge referred to the definition of household contained in Black’s Law Dictionary and stated “that household means a family living together” and also means “those who dwell under the same roof and compose a family.” However, the trial judge further stated that she understood that in this context “to be in the same family, you do not have to be married and you do not have to be related.” Thus, the trial judge recognized that factors in addition to residence in the same house were required before Mr. Black could be considered a member of Ms. Gibson’s household.
“ ‘Household’ is commonly and popularly understood as comprising an economic unit. A boarder may reside in one’s house, but not in one’s household.” Smith v. Southern Farm Bureau Casualty Ins. Co., 353 Ark. 188, 198, 114 S.W.3d 205, 210 (2003) (emphasis in original) (J. Corbin, concurring). The majority in Smith recognized that the term “family” has come to mean any group of persons who live, sleep, cook and eat upon the premises “as a single housekeeping unit.” The court further found that if this definition were used in the context of the language of the insurance policy — “any member of your family residing in your household” — would be redundant as both “family” and “household” would have the same meaning. Therefore, the majority defined “family” in the context of the insurance policy language as meaning a blood or legal relationship.
The trial judge in this case specifically stated that the term “family” as used to define “household” did not mean relatives by blood or marriage. Interpreting the language of the divorce decree in the context of alimony requires an economic analysis more in keeping with defining family as a single housekeeping unit. See Byrd v. Byrd, 252 Ark. 202, 478 S.W.2d 45 (1972) (holding that in absence of showing that former wife’s paramour had assumed any responsibility for her care and maintenance or that she had assumed his name and held herself out publicly as his wife, alimony could not be terminated). Furthermore, the trial court had complete authority to interpet the divorce decree she had previously entered in this case. See Abbott v. Abbott, 79 Ark. App. 413, 90 S.W. 3d 10 (2002). As a general rule, judgments are construed like any other instrument; the determinative factor is the intention of the court, as gathered from the judgment itself and the record. Id. We give deference to the advantaged position and prerogatives of the trial judge as the finder of the facts; we allow the court considerable latitude of discretion as to the orders made; and we will not upset its judgment and substitute our own unless it clearly appears that the court abused its prerogatives. Barker v. Barker, 271 Ark. 956, 611 S.W.2d 787 (1981) (citing Erickson v. Beardall, 20 Utah 2d 287, 437 P.2d 210 (1968)).
In this case, the trial judge found that Mr. Black’s relationship with Ms. Gibson was not one of sharing economic responsibility, and that he was neither a member of her “household” nor a member of her “family.” There is certainly sufficient evidence to support the trial judge’s findings, particularly when family is defined “as a single housekeeping unit” rather than as relatives by blood or marriage.
The trial judge cited several factors supporting the conclusion that the two did not reside in the same household, including:
. . . the fact that the Plaintiff and Mr. Black did not go any places alone, that she has not slept in the same room with Mr. Black, that Mr. Black now lives in the basement of the home that Mrs. Gibson is living in, that he pays $1,000 per month rent, and assists in home and yard maintenance.
The judge also noted that the living arrangements of Mr. Black and Ms. Gibson were very close to the circumstances that existed at the time of the parties’ divorce. Ms. Gibson testified that it was advantageous for her and her divorced daughter to have a male companion in the house because the situation with her daughter’s former husband made them fearful for their physical safety. Ms. Gibson testified that she and Mr. Black have no joint bank accounts, credit cards, or other financial holdings, obligations, or ties but for the fact that he pays rent to Ms. Gibson.
Dr. Gibson testified that during the course of the marriage he socialized with Mike Black and that Mike Black had helped move the parties’ daughter with Ms. Gibson because Dr. Gibson’s schedule was too busy. Further, Dr. Gibson testified that during the course of the marriage, it was not unusual for a third party to stay in the couple’s home. Given this testimony, we cannot say that the trial judge’s determination that Mr. Black was not a member of Ms. Gibson’s household was clearly erroneous.
Nevertheless, Dr. Gibson complains that the trial court’s order implies that Dr. Gibson had the burden to prove that Ms. Gibson was romantically involved with Mr. Black. We hold that whether or not Ms. Gibson and Mr. Black were romantically involved is not determinative of whether termination of alimony was appropriate.
In Herman v. Herman, 335 Ark. 36, 977 S .W.2d 209 (1998), our supreme court addressed a situation in which there was testimony that an ex-wife and her boyfriend lived in a permanent sexual relationship that is everything but marital in name. The supreme court reversed the trial court, holding that it was clearly erroneous in finding that the cohabitation of the ex-wife and another man amounted to changed circumstances that warranted the termination of the ex-husband’s alimony obligation. The court explained:
The [trial court’s reasoning also conflicts with our holding in Byrd v. Byrd, 252 Ark. 202, 478 S.W.2d 45 (1972), which clearly indicates that marriage and nonmarital cohabitation are not equivalent for purposes of determining whether a former spouse is entitled to continue receiving alimony. Without deciding the issue, we suggested that a spouse who cohabitates with a third party might lose his or her entitlement to alimony if (1) the third-party “companion” has assumed responsibility for the spouse’s “care and maintenance”; or (2) the spouse has assumed his or her companion’s name and held himself or herself out publicly as the companion’s spouse.
Id. at 39-40, 977 S.W.2d at 211. The court concluded that Ms. Herman’s cohabitation with Mr. Purifoy, had not changed Ms. Herman’s financial circumstances or diminished her need for alimony.
Therefore, the trial judge’s decision in this case accurately reflects our supreme court’s rulings identifying the conditions for the termination of alimony. See also Cole v. Cole, supra (explaining that the purpose of alimony is to rectify economic imbalance in the earning power and the standard of living of the parties to a divorce in light of the particular facts of each case).'
In his third point on appeal, Dr. Gibson asserts that the trial court did not have jurisdiction to modify the definition of cohabitation in the order. We agree that the trial court was without jurisdiction to modify the divorce decree’s definition of cohabitation. See Abbott v. Abbott, 79 Ark. App. 413, 90 S.W.3d 10 (2002); Ark. R. Civ. P. 60. However, as discussed above, whether or not Ms. Gibson had a romantic or intimate relationship with Mr. Black does not determine the issue of whether or not alimony should be terminated. Accordingly, we modify the trial court’s order to strike the added phrase “and with whom the Plaintiff has or has had an intimate or romantic relationship” from the definition of cohabitation.
Affirmed as modified.
Hart, Griffen, Vaught and Roaf, JJ., agree.
Stroud, C.J., Gladwin, Neal and Crabtree, JJ., dissent. | [
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Andree Layton Roaf, Judge.
Appellants Mark and Patsy Beatty brought an action for rescission of a real-estate contract against appellees James and Sarah Haggard based on constructive fraud. The Beattys appeal from the trial court’s decision that they failed to prove either actual or constructive fraud by clear and convincing evidence. On appeal, the Beattys argue that the trial court erred in: (i) finding that the necessary burden of proof for constructive fraud was clear and convincing evidence; and (2) finding that they had failed to prove the necessary elements of either actual or construe- tive fraud. We agree that the trial court clearly erred in finding that the Beattys had failed to prove the elements of fraud, and reverse and remand.
On April 24, 2000, the Beattys entered into a real-estate contract with the Haggards to purchase their home located in Faulkner County for $174,800. The Haggards provided the Beat-tys with an owner’s property disclosure statement, dated January 10, 2000, in which they indicated that there had not been any “room additions, structural modifications or other alterations or repairs” made since the property was originally constructed; that there had not been “any settling from any cause, or slippage, sliding or other poor soil conditions”; that there had not been any known defects in the structure or substructure of any improvements; and that there were no other known defects in the property.
After discovering evidence of settling in the house, the Beattys filed suit against the Haggards in October 2001. The Beattys alleged in their complaint that subsequent to taking possession, they noticed “cracks in the ceiling of certain areas of the residence, separation of the floor trim in the same areas, cracks in the mortar of the brick work and vertical cracks in the bricks themselves on the north side of the residence.” In addition, the Beattys alleged that upon further investigation, they discovered that the house was settling on its north side and that the Haggards had poured additional concrete along and adjacent to the foundation at the northeast corner of the home, “in an apparent (but unsuccessful) attempt to stop the settlement.” The Beattys further stated that this additional concrete was covered with dirt and grass and was not visible at the time of purchase. They alleged that the Haggards were aware of the settlement problem, that the problem was not disclosed on the owner’s disclosure statement, that they relied upon the disclosure statement, and that they would not have bought the home had the settlement problems been disclosed. The Beattys alleged that the failure to disclose the foundation or settlement problems constituted a constructive fraud against them, and they prayed for rescission of the purchase, or in the alternative, damages for the cost to repair the residence, for loss of value, and other consequential damages.
The Haggards denied the allegations and moved for summary judgment, which was denied by the trial court. The Haggards also filed a motion requesting that the trial be bifurcated on the issues of liability and damages, which was granted.
The evidence presented at trial on the liability issue established that James Haggard was an experienced builder, that the Haggards had the home in question built in 1995 by their son, John Haggard, who was in the business of building homes, and that they were the only occupants of the home until they sold it to the Beattys. In October 1999, James Haggard testified that he noticed some small cracks in the sheetrock above the east window in a bedroom on the northeastern corner of the house and above the interior door in that bedroom. He stated that there was also a small crack above the bathroom window on the north side of the house. Mr. Haggard further discovered some cracks in the mortar of the exterior brick on the north side beneath the bathroom window and on the east side of the house. He called his son out to examine the cracks, and they decided to dig down to the base of the concrete footing of the house along the northeastern corner to see if the cracking was the result of a structural problem.
Mr. Haggard and his son enlisted David Tindall, who used his backhoe to do the digging, and Joe Gormley to assist with the work. Mr. Haggard stated that they dug several feet along the north and east sides, although he stopped at the sewer cutoff on the north side. He testified that they found no cracks or other structural damage to the footing. Instead of replacing the loose dirt where they had dug, Mr. Haggard testified that they decided to pour concrete in the hole because otherwise, when it rained, the soft dirt would have compacted and collected water next to the footing of the house. He stated that this was just a precaution, as they found no structural damage, and that this concrete was not affixed to the foundation with rebar. He then covered up the concrete with dirt, and he testified that the concrete would not have been visible to the Beattys or to the home inspector.
Mr. Haggard testified that he also had someone come out and “tuck point” the mortar that had cracked on the brick exterior of the house. To repair the cracks in the sheetrock in the northeastern bedroom, he put mud on them, repainted, and put a new wallpaper border over them. When the Beattys visited the home prior to their purchase and to their receipt of the disclosure statement, Mr. Haggard testified that he pointed out where the mortar had been tuck pointed, although he did not mention the other repairs or the additional concrete. He further stated that he had accidentally used a different colored mortar when tuck pointing the cracks and that it would have been obvious to anyone that the mortar had been replaced in those areas.
Mr. Haggard testified that all of these repairs were “cosmetic” and that he did not disclose the repairs on the owner’s disclosure statement. He stated that he did not mention the excavation and additional concrete in the disclosure statement because there were no questions that would have required him to do so. When asked about the question that stated, “Are there room additions, structural modifications or other alterations or repairs made to the Property since the Property was originally constructed^]” Mr. Haggard testified that he answered “No” because he interpreted that question as referring only to structural alterations or repairs. Because he stated that all of the repairs he had performed had been cosmetic, not structural, Mr. Haggard did not list them. He also answered in the negative to the question that asked whether there had been any settling from any cause. Mr. Haggard testified at trial that he “had no idea if there was or wasn’t settlement at this house,” although he did not see any evidence of settling when he dug down to the footing. He further testified that he answered the questions on the disclosure statement truthfully, to the best of his knowledge, and that he had no intent to deceive anyone.
Lyman Walker, a home inspector, testified that he inspected the Haggards’ home prior to the purchase by the Beattys. Walker stated that he was not aware of the excavation and additional concrete poured at the northeastern corner of the house or of the cracks in the sheetrock in the corner bedroom. If he had been aware of the additional concrete, Walker testified that he would have included it in his report because it is an “abnormal circumstance,” which would merit further investigation as to its purpose. He stated that he would probably have recommended to the Beattys that they have a structural engineer look at the house if he had known about the concrete and that he believed he and the Beattys should have been told about it. Walker testified that he did not recall seeing a different colored mortar on certain areas of the exterior of the home, although he did note in his report that there were some hairline cracks in the exterior brick. Walker stated in his report that these cracks were probably the result of minor settlement and that they should be monitored for a year to eighteen months. He testified that he did not find evidence of any significant settling during his inspection.
According to Walker, minor cracks found in the interior of a home are typically cosmetic in nature. However, when shown a picture of a crack above the east window in the northeastern bedroom, taken after the Beattys had possession of the house, Walker testified that he would have noted that type of crack in his inspection report, particularly if he had already found cracks on the exterior, because they could be related. When asked what he would have done had he been aware of cracks in the mortar, interior cracks above the window and the interior door opposite that window, and excavation and the installation of additional concrete on the northeast corner, Walker again testified that he would have recommended a structural engineer.
Michelle Henson, a wallpaper hanger, also testified on behalf of the Beattys. She stated that she was removing wallpaper in one of the bedrooms when she found a large crack, a quarter of an inch wide, that ran from the top of a window to the ceiling. She testified that the crack had been patched on top of the original wallpaper and that new wallpaper had been placed over it. Henson also stated that she repaired other cracks over doors or windows in the house.
Mark Beatty testified that he and his wife received a copy of the owner’s property disclosure in March 2000 and that it was one of the main documents that they relied upon in purchasing the home. He stated that all of the questions on the disclosure were answered “No,” and that they trusted the Haggards’ word that there was not anything wrong with the home. Mr. Beatty testified that he did not notice any cracks in the exterior or interior of the home before he purchased it, except for one crack over the hearth. He stated that he was aware that the inspection report mentioned some minor cracks or minor settlement, but that he assumed it was not a major problem because the report did not discuss the issue in depth. Mr. Beatty first learned of the concrete along the northeastern corner of the house in July 2000, when he was planting shrubbery and his shovel hit the concrete. He phoned Mr. Haggard to ask why the concrete was there, and Mr. Haggard told him that it was there for reinforcement. Mr. Beatty testified that he again phoned Mr. Haggard in August 2000, when he had some foundation experts at the house who needed more information. Mr. Beatty stated that Mr. Haggard told him the size of the concrete and that there was not any rebar in it. The concrete had been poured into a trench two feet wide, two feet deep, and approximately thirteen feet long.
According to Mr. Beatty, the disclosure statement required Mr. Haggard to list all repairs made to the home, and he was misled by the failure to disclose the excavation and additional concrete. Mr. Beatty further testified that this nondisclosure constituted constructive fraud. Patsy Beatty also testified that if the disclosure statement had mentioned the excavation and concrete at the northeast corner, as well as the sheetrock repairs in the bedroom, they would not have purchased the house, and that the failure to disclose this information constituted constructive fraud.
Stephen Horvath, a licensed real-estate appraiser, testified by stipulation that he inspected the residence on April 10, 2000. During his inspection, Horvath noticed cracks in the mortar on the north and east sides of the house and that mortar work had been performed, but did not see the concrete that had been poured in that area because it was covered with grass. If he had known about the additional concrete, Horvath testified that he would have mentioned it in his appraisal and would have requested that the mortgage company do a structural inspection of the house.
On behalf of the Haggards, David Tindall testified that he assisted in digging down to the footing of the house in October 1999. He stated that the footing was structurally sound and that Mr. Haggard was an honest and truthful person. However, Tindall also testified that he considered digging by the footing to be house repair. He further stated that cracks in the mortar do not indicate whether there is a foundation problem and that a person would not necessarily be concerned about just cracks in the mortar.
John Haggard, the Haggards’ son who built, the house, testified that he helped his father with the excavation and the pouring of the additional concrete. He stated that there was not anything wrong with the footing and that the concrete was not intended to repair or strengthen the footing, as it was poured beside, not underneath it. However, Joe Gormley, who also assisted in the excavation, testified that the additional concrete was poured so that it would go underneath and support, or join, the footing. Gormley stated that he would not describe their work as a “repair” on the home.
Following the evidence and the submission of briefs as to the correct standard of review, the trial court found that the Beattys failed to meet their burden of clear and convincing evidence and that they failed to prove the necessary elements of either actual'or constructive fraud. The Beattys appeal from this decision.
The Beattys argue that the trial court erred in finding that they failed to carry the necessary burden of proof of clear and convincing evidence of constructive fraud. They contend that many cases discussing constructive fraud use a preponderance-of- the-evidence standard and that there is a distinction between the burden of proof required for actual fraud as compared to constructive fraud, which is what they alleged in this case.
There are cases involving constructive fraud that use a preponderance-of-the-evidence standard. See, e.g., Roach v. Concord Boat Corp., 317 Ark. 474, 880 S.W.2d 305 (1994); Stewart v. Clark, 195 Ark. 943, 115 S.W.2d 887 (1938). Other cases have used a clear and convincing, or a “clear, strong, and satisfactory” proof standard. Knight v. Day, 343 Ark. 402, 36 S.W.3d 300 (2001); Lane v. Rachel, 239 Ark. 400, 389 S.W.2d 621 (1965). Still others have used a “substantial evidence” standard. Farm Bureau Policy Holders & Members v. Farm Bureau Mut. Ins. Co., 335 Ark. 285, 984 S.W.2d 6 (1998); Bain v. Deal, 251 Ark. 905, 475 S.W.2d 708 (1972).
However, these differing standards have been examined and at least partially explained by our supreme court. In Clay v. Brand, 236 Ark. 236, 365 S.W.2d 256 (1963), the supreme court noted that two different burdens of proof of fraud had been used in the past with respect to written instruments. “One, the ordinary rule which requires proof of fraud by a preponderance of the evidence and two, the stricter rule which requires proof of fraud by a preponderance of the evidence which is clear and convincing.” Id. at 241, 365 S.W.2d at 259. Where it is alleged that the contract was obtained by misrepresentation, the preponderance-of-the-evidence standard applies; however, a stricter degree of proof is required when a solemn written instrument is to be upset. Id. at 242. In Clay, the trial court rescinded a real estate contract on the basis of misrepresentations as to the adequacy of the water supply. Id. Finding that the contract was silent with reference to the water supply and that the proof thus did not alter or contradict any of the written terms of the contract, the court found that the preponderance-of-the-evidence standard should apply. Id.
This distinction was recognized by this court in Strout Realty, Inc. v. Burghoff, 19 Ark. App. 176, 718 S.W.2d 469 (1986), where the purchaser of real estate sought to rescind the contract on the basis of the vendors’ fraudulent misrepresentations as the adequacy of the water supply, the income potential of the property, and the amount of acreage conveyed. Finding that the allegation of fraud as to the amount of land to be sold directly contradicted the amount of land set forth in the contract and deed, and also that the allegations of fraud as to the water supply and the income potential contradict that clause in the contract stating that the purchasers were relying on their own investigation of the matter, this court held that the allegations were attempting to overturn a written instrument by proof that alters its written terms and that the clear and convincing evidence thus applied. Id. This court again discussed this distinction in Riley v. Hoisington, 80 Ark. App. 346, 96 S.W.3d 743 (2003), where the purchasers of real estate were granted rescission of the contract due to fraudulent misrepresentations on the owner’s disclosure statement relating to flooding in the home. We held that the facts and pleadings of the case required that the clear-and-convincing-evidence standard apply. Id.
Based upon the use of the clear-and-convincing standard in both Strout Realty and Riley, the trial court did not err in requiring the Beattys to prove constructive fraud, which in this case was alleged based on nondisclosures in the owner’s disclosure statement just as in Riley, by clear and convincing evidence.
The Beattys also argue that the trial court erred in finding that they failed to prove the necessary elements of either actual or constructive fraud. This court reviews equity cases de novo; however, the trial court’s findings of fact will not be reversed unless they are clearly erroneous. Riley v. Hoisington, supra. A finding is clearly erroneous when, even though there is evidence to support it, the appellate court is left with a definite and firm conviction that a mistake has been made. Id.
To establish fraud, the following elements must be proven: (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; (5) damage suffered as a'result of the reliance. Id. However, to rescind a contract based upon fraud, it is not necessary that actual fraud exist. Id. (citing Lane v. Rachel, supra). Representations are construed to be fraudulent when made by one who either knows the assurances are false or else not knowing the verity asserts them to be true. Id. Constructive fraud has been defined as a breach of a legal or equitable duty, which, irrespective of the moral guilt of the fraud feasor, the law declares to be fraudulent because of its tendency to deceive- others. Id. Thus, neither actual dishonesty of purpose nor intent to deceive is an essential element of constructive fraud, and a seller’s lack of knowledge of the material representations asserted by him to be true or his good faith in making the representations is no defense to liability. Id. In fact, it has been said that constructive fraud generally involves a mere mistake of fact. Bain v. Deal, supra (quoting Kersh Lake Drainage Dist. v. Johnson, 203 Ark. 315, 157 S.W.2d 39 (1941)).
The Beattys argue that the Haggards’ nondisclosure on their owner’s property disclosure statement of the excavation and additional concrete constituted constructive fraud. The Beattys contend that they reasonably relied upon the disclosure statement and that they would not have purchased the property had they known about the excavation and additional concrete along the northeastern corner of the house. The Haggards, however, assert that they were not required to disclose the repairs because they were merely cosmetic and not structural, as they did not find any evidence of settling in the exposed footing. The primary disagreement lies in the interpretation of question number 4 on the owner’s property disclosure, which states: “Are there any room additions, structural modifications or other alterations or repairs made to the Property since the Property was originally constructed?” The Haggards argue that this question required them to list only structural repairs, while the Beattys contend that all repairs should have been disclosed pursuant to this question. However, under the Haggards’ interpretation of this question, which is that the words “alterations” and “repairs” referred only to structural alterations or repairs, there would be no need to follow “structural modifications” with “other alterations or repairs.” (Emphasis added).
Although the Haggards argued at trial that their actions in excavating and pouring additional concrete along the footing did not constitute a “repair” to the home, they themselves referred to this work as a “repair” on many occasions, including on checks written to pay for the excavation and concrete, on their answers to interrogatories, and in James Haggard’s second affidavit. Also, the Haggards’ witness, David Tindall, who assisted in the excavation work, testified that he considered digging by the side of the footing and pouring concrete to be house repair. The Haggards also contend that this repair was merely cosmetic because the additional concrete was not affixed in any way to the original footing. However, Mr. Haggard told Mr. Beatty that the additional con crete was there for reinforcement, and Joe Gormley testified that they dug around the footing in such a way that the new concrete would support or join up with the original footing. The home inspector, Lyman Walker, testified that he felt he and the Beattys should have been aware of the repair work along the footing, and both Walker and Horvath, the real estate appraiser, testified that they would have recommended that a structural engineer inspect the house if they had known of the excavation and additional concrete. Thus, the Haggards had a duty to disclose this information on the owner’s disclosure statement, and their failure to disclose it constituted a material misrepresentation of fact.
The Haggards also argue that the Beattys failed to prove the remaining elements of fraud set out above, such as intent to induce reliance, justifiable reliance, and damages. The Beattys contend, however, that these elements need not be proven for constructive fraud, as compared to actual fraud. As with the standard of review for fraud, case law is confusing as to whether all of the elements, save the false representation of material fact element, which clearly must be proven, must be shown for constructive fraud. While the supreme court in Farm Bureau Policy Holders & Members, supra, listed the five elements as requirements for constructive fraud, in a later case, Knight v. Day, supra, the court stated in a footnote that it had inadvertently labeled those elements as those that must be established for constructive fraud, when they are actually the elements of fraud. Regardless of whether a particular case specifically states that these five elements must be proven for constructive fraud, almost all of the cases analyze the proof using these elements. See, e.g., Knight v. Day, supra.
We further conclude that the trial court clearly erred in finding that the Beattys had failed to prove the remaining elements of constructive fraud by clear and convincing evidence. The Haggards clearly intended for the Beattys to rely on the owner’s disclosure statement in deciding whether to purchase the house. In fact, the real estate contract states under Paragraph 16B that a written disclosure has been provided and “is warranted by the Seller to be the latest disclosure” and that the answers in the disclosure are “true, correct, and complete to the best of the Seller’s knowledge.” Also, the Beattys both testified that they relied upon the representations in the disclosure statement in purchasing the house. The Haggards contend that the Beattys failed to prove that they suffered damage as a result of their reliance, but, as the Beattys argue, the Haggards filed a motion to bifurcate the trial, which was granted. Thus, there was no evidence presented as to damages at the initial trial on liability. The Beattys did allege in their complaint that they have noticed substantial evidence of settling on the home’s north side, however, and there was testimony that they had two different foundation experts come out and look at the house. This is enough to show that they have suffered some damage as a result of their reliance. Of course, they will have the burden to prove the extent and amount of damage at the trial on the damages issue.
The Haggards also argue that an “as is” clause in the real-estate contract, as well as a “Buyer’s Disclaimer of Reliance” clause, prevent recovery by the Beattys on the basis of fraud. While the sale of property “as is” generally relieves a vendor from liability for defects in that condition, unless the defects are patent, an “as is” clause does not bar an action by the vendee based on claims of fraud or misrepresentation. 77 Am. Jur. 2D Vendor and Purchaser § 327 (2003). Also, as the Beattys contend, the “Buyer’s Disclaimer of Reliance” clause excludes from the disclaimer those representations specified herein “including any written disclosures provided by the seller.” (Emphasis added). Thus, the Haggards’ argument that these clauses in the real-estate contract bar this action by the Beattys is without merit. Because the trial court clearly erred in finding that the Beattys failed to prove their claim for constructive fraud by clear and convincing evidence, we reverse the trial court’s decision and remand for a determination of damages.
Reversed and remanded.
Pittman, Hart, Neal, and Baker, JJ., agree.
Griffen, J., dissents.
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Sam Bird, Judge.
This is a case about a boundary bne dispute. The trial court found that appellant, R.C. Robertson, had failed to prove a boundary by agreement or acquiescence or that he proved ownership of the disputed tract by adverse possession. The trial court also quieted title to a parcel of land in appellee, Raymond Lees. We affirm in part and reverse in part.
R.C. Robertson filed a petition seeking an injunction, alleging that he owned a parcel of land in Scott County, Arkansas, and describing the parcel; that appellee Raymond Lees owned land adjoining the north boundary of Robertson’s property; that there had been a fence between Robertson’s and Lees’s lands that had served as the boundary between the parcels for thirty-eight years; that after conducting a survey, Lees had torn down and removed the fence; and that the court should declare the fence line to be the boundary between the parties. Lees answered, admitting the parties’ ownership of their respective parcels of land but denying the other allegations of the petition. Lees also filed a counterclaim, alleging that he had obtained information from Von Robertson, a prior owner of his parcel, about the location of the boundary between Robertson’s and Lees’s parcels and that he had obtained a survey confirming that the old fence line was not the “true” boundary line between the two parcels. By his counterclaim, Lees also alleged that he was the owner by adverse possession of the parcel of land described in his deed, and Lees sought to quiet title to the property described in his deed in him. Robertson denied the allegations in the counterclaim, specifically denying that Lees had acquired title to any part of Robertson’s land by adverse possession.
The Evidence
Robertson’s Case in Chief
Robertson testified that, at one time, his grandfather had owned all of the property involved, including the parcels now owned by Robertson and Lees, and that he obtained his land in 1983 under the will ofhis sister, Lillian “Geda” Robertson (Geda). On his land is a house, a shed or outbuilding, and a well. Robertson testified that a clothesline and cedar-posted fence that his sister had built in 1971 or 1972 lay to the north of the outbuilding and well, and he said that the clothesline and .fence were in place in 1983 when he acquired the land. He stated that he lives with his grandson in Watson, Arkansas, but that he has visited the property every year since he acquired it and that he pays to have the property maintained. Robertson testified that, in addition to the fence along the north boundary, Lees also took down twenty or thirty feet of fence on the west boundary of the property. Robertson testified that, to his knowledge, neither he nor his aunt Von Robertson ever pointed out the boundaries, but that he knew where the boundaries were located. Robertson testified that he had once been told by Reese Herren, a neighbor, that the fence was a foot or two off the actual boundary, but that Reese had later told him that the fence was exactly on the boundary line. Robertson stated that he was not claiming any property other than to the fence line, and he was claiming that the fence was on the boundary line that coincided with the description in his deed. Robertson read into the record the description of his land as it appeared in his deed.
William Kenneth Robertson, Jr. (William), Robertson’s grandson, testified that appellant lived part of the time with him in Watson, Arkansas, and part of the time in the house on the disputed land. William also testified that, as a young boy, he remembered that the disputed land had a fence on the north side and that the fence was not new at that time. He also testified that in 1970 the clothesline poles were on the property now owned by his grandfather (Robertson) and that the boundary-line location claimed by Lees, as indicated by a line of steel fenceposts set by Lees, would take in the clothesline. William also testified that Lees had told him that he had had a second survey conducted and that the new line, as established by the second survey, took in most of appellant’s shed. William said that his grandfather had told him to remove some of the steel fenceposts placed by Lees.
William stated that Robertson had maintained the land by having someone in the family mow it or by paying someone to mow it, including all of the area within the old fence line. William stated that Robertson was claiming from the old north fence line to the highway. He also stated that, in 1994 or 1995, Lees was paid to mow Robertson’s land but denied that Lees has mowed it every year since 1993. William stated that, until this dispute arose, he did not see any evidence of anyone claiming the land. He also stated that Robertson had stayed at the house alone overnight since acquiring it. William further testified that, when he was in college, he used the house as a get-away, commonly staying there for one or two weeks during the summer. He said he married in 1995 and that he and his wife visited there before and after they married. He stated that he knew Von Robertson but that she never showed him the boundaries and that he never knew of her talking to anyone about the boundaries. He did not recall meeting Pat Richmond, Lees’s predecessor in title, until they met at court.
Edna Faye Owens, Robertson’s cousin, testified that she lived north and west of Robertson’s land and directly across a field from Lees. She testified that Robertson took possession of the land and started coming there occasionally after Geda died. She stated that the west and north sides of the land were fenced when Geda owned it. She recalled the fence and clothesline poles being there in 1977 when her mother passed away, and that the clothesline poles were still in the same place now. Owens stated that she helped Robertson maintain the place, mowing the yard and weed-eating around the house. She said that she always mowed to the fence on the north side. She said that Geda had a burn barrel and that it is still in the same place that it has always been. She said that the fence on the north boundary was an old fence with cedar fenceposts that had been there for thirty years. She also stated that, to her knowledge, everyone in the family considered the cedar-post fence line to be the boundary of Robertson’s land. She said that when she mowed, she mowed the entire tract, not just the part that was now in dispute, because at that time it was not in dispute. Owens said that Lees told her in 2002, not 1993 or 1994, that she did not need to mow the disputed property because it belonged to him. She said that she could not say whether Lees mowed the area in dispute because she could not see that area from her house.
Owens further stated that William Robertson and his wife came to the property almost every weekend. She said they would visit with her until bedtime because the property did not have electricity or heat. She stated that Von Robertson was her great-aunt. She said that she may have been present when Lees bought the property but did not recall her Aunt Von showing Lees the boundaries.
Howard King, Robertson’s son-in-law, testified that he was acquainted with the disputed property and that Robertson owns it. He stated that the boundary lines were obvious prior to Geda’s death, with a fence on the north line. He stated that some of the posts were iron and some were cedar, and that the fence had been in place since 1972, which is when he first visited Geda. He stated that he visited Geda on a regular basis from 1972 until her death but that he had only been to the property once or twice since 1985. King identified four photographs taken in the early 1980s that showed the fence as it existed when Geda was alive. He said that the clothesline also existed at the time. His wife, Charlene King, corroborated his testimony. She also stated that the clothesline posts shown in the photographs were the same ones that Geda had put up, and that they appeared to be in the same position as they were in the 1980s.
Lees’s Case in Chief
Patricia Richmond, Lees’s predecessor in title, testified that she owned Lees’s parcel from 1991 until she sold it to Lees in 1993. She stated that Von Robertson had told her that the boundary line adjacent to Robertson’s land was somewhere between the pump house and the old fence. She stated that she had looked at the land before trial at Lees’s request and that it appeared to her that the clothesline was not where it used to be, and that, from looking at the photographs, the clothesline used to be closer to the pump house. Richmond testified that Edna Faye Owens told her that Geda had needed some additional land for a clothesline and that the fence line was not the boundary. She also said that the area between the two parcels was overgrown and that she did not mow down to the fence because that area was overgrown with brush. She stated that she could not recall whether there was a fence in the overgrown area. She also stated that Robertson’s property was overgrown because it was not mowed.
Lees’s wife, Christine Lees, testified that, when Lees purchased the property, they were told that the boundary ran near the pump house and the shed. She stated that Patricia Richmond and Von Robertson showed her where they understood the line to be. She said that Von Robertson had said that the clothesline was placed where it was for Geda’s use, but that the land actually belonged to Lees. She also stated that, when they purchased the land in 1993, Robertson’s land was so overgrown that one could not see Robertson’s house or tell that it had a porch. She testified that they did not realize that there was a fence until they started clearing brush in 1994. She testified that her husband had obtained a survey in 2001, that the surveyors had placed pins to mark the boundary, that Lees had put up a post so they could see the boundary, and that the boundary line angled off. She testified that they had maintained parts of the disputed tract because they were worried about a fire spreading to their property. She stated that she believed that the clothesline was originally closer to Robertson’s house and that William Robertson moved it when he planted muscadine vines. She denied moving the clothesline. She admitted seeing Edna Owens and Lester Phillips mow the back of the disputed tract but denied seeing William Robertson mowing.
Sandra Jo Ferguson, Robertson’s niece, testified that she was aware of the disputed boundary but that she was never present when the boundary was discussed within the family. She was aware that Patricia Richmond owned the property but not aware that Lees had purchased the property in 1993. She also testified that, during her three or four visits per year, Robertson’s land was overgrown to the extent that the growth covered the porch. She stated that the property appeared unoccupied, except for one time when she saw a vehicle parked behind the house. Ferguson admitted that the property was better maintained in the last three to five years but that she did not know who was doing the work. She stated that, although she did not know the boundaries, she could generally recall the location of the fence. Ferguson testified that a barbed-wire fence was built as a barrier to keep cattle from the yard. She stated that the cedar fence posts depicted in the photographs resembled the fence posts that she recalled but added that she could not be certain. She stated that Geda Robertson’s backyard extended to a fence line but that she was not certain that it was the same fence. She also testified that Geda Robertson had a small yard because she did not want to maintain a large yard. She stated that the fence was the back boundary of Geda’s property but that she did not know whether the fence was located on the actual boundary line. She said that she believes that the fence was erected for convenience.
Lees testified that he had a discussion with William Robertson and told him that he was erecting a fence to keep his animals from running loose. He stated that he learned the location of the boundaries by talking to Edna Faye Owens, Von Robertson, and Patricia Richmond. He also said that he.walked the boundary with William Robertson and that William agreed with him. He said that he had the line surveyed in 2001, but that it was unnecessary because he put up fence posts on the agreed line. He said that he saw Edna Owens mow the property a few times, including some of the land claimed by him, and that he asked her not to mow the disputed area. He denied that William Robertson paid him to mow the disputed tract; he said he mowed it because he was afraid of the fire danger.
The trial court denied and dismissed Robertson’s petition for an injunction. The trial court found that the evidence was insufficient to establish that Robertson owned the disputed property under theories of adverse possession, boundary by acquiescence, or boundary-line agreement. Specifically, the trial court found that neither Robertson nor his predecessors in title took steps that would put others on notice that he or his predecessors were claiming the land adversely. The trial court also noted that there was little or no testimony as to an agreement that the fence would be the boundary between the parties or as to how the fence was established. The trial court also quieted title in the land described in Lees’s counterclaim in Lees. This appeal followed.
Robertson argues four points on appeal: (1) that the trial court erred in not finding that a boundary by acquiescence had been established; (2) that the trial court erred in admitting hearsay testimony concerning the location of the boundary; (3) that the trial court erred in finding that the proof was insufficient to establish Robertson’s ownership by adverse possession, and(4) that the trial court erred in quieting title in Lees without the introduction of the survey and without determining where the property lay.
Standard of Review
The standards governing appellate review of an equity matter are well established. Although this court reviews equity cases de novo on the record, we do not reverse unless we determine that the trial court’s findings of fact were clearly erroneous. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). In reviewing a trial court’s findings of fact, we give due deference to the trial judge’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Id.
Arguments
Point One
Robertson first argues that the trial court erred in not finding that a boundary by acquiescence had been established. The location of a boundary line is a question of fact, and we affirm a trial court’s finding of the location of a boundary line unless the court’s finding is clearly erroneous. Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972); Jennings v. Buford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Hedger Bros. Cement & Materials v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000).
A fence, by acquiescence, may become the accepted boundary even though it is contrary to the surveyed line. See Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993); see also Palmer v. Nelson, 235 Ark. 702, 361 S.W.2d 641 (1962). There are cases in which the supreme court noted that the mere existence of a fence, without evidence of mutual recognition, cannot sustain a finding of such a boundary. See Warren v. Collier, 262 Ark. 656, 559 S.W.2d 297 (1978); Fish v. Bush, 253 Ark. 27, 484 S.W.2d 525 (1972); Carney v. Barnes, 235 Ark. 887, 363 S.W.2d 417 (1962). As the trial court noted, there was very little testimony concerning the building of the fence. While appellant and his witnesses testified that they considered the fence line to be the boundary line, there was no testimony presented that the owners of Lees’s land also considered the fence to be the boundary. This court has confirmed the importance of ascertaining the intent of the parties: “It is the agreement and acquiescence, not the fence itself, that controls. The intention of the parties and the significance that they attach to the fence rather than its location or condition, is what is to be considered.” Camp v. Liberatore, 1 Ark. App. 300, 303, 615 S.W.2d 401, 404 (1981). Instead, Robertson relies on silence from Lees and his predecessors in title. But, Lees was not silent about the matter. He told Edna Faye Owens not to mow the disputed tract. Robertson also relies on hearsay testimony that Reese Herren gave land for the clothesline and built the fence. However, the fact that a landowner puts a fence inside his boundary line does not mean that he is acquiescing in the fence as the boundary, thereby losing title to the strip on the other side. Carney v. Barnes, supra; Webb v. Curtis, 235 Ark. 599, 361 S.W.2d 87 (1962). That occurs only if the neighbor takes possession and holds it for the requisite number of years. Carney, supra. Here, Herren could have given permission for Geda Robertson to erect a clothesline on his property, which is not the same thing as acquiescing in a fence as a boundary. The evidence presented by Robertson did not reflect an intent on the part of Lees or his predecessors to recognize the fence as the boundary. Given the deference accorded the trial judge in determining the credibility of the witnesses and the weight to be given their testimony, we affirm on this point.
Point Two
In Robertson’s second point, he argues that the trial court erred in admitting, through the testimony of Patricia Richmond, the hearsay statements of Von Robertson concerning the location of the boundary. Robertson objected to the testimony of Richmond, a former owner of the property, about what Von Robertson told her concerning the location of the boundary line. On appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). Nor will we reverse a trial court’s ruling on evidentiary matters absent a showing of prejudice. Id. The trial court recognized that the statements Von Robertson made to Richmond were hearsay but relied on the exception found in Ark. R. Evid. 803(20). We need not decide whether the exception applies because Christine Lees gave essentially the same testimony concerning Von Robertson’s statements about the location of the boundary, and Robertson made no objection to that testimony. Therefore, the admission of Richmond’s testimony was not prejudicial, nor was it grounds for reversal, because it was cumulative to other evidence in the case. Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996); Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990). We affirm on this point.
Point Three
Robertson contends that the trial court erred in failing to find that he had established title by adverse possession. In order to establish title by adverse possession, Robertson had the burden of proving that he (or his predecessors in title) had been in possession of the property in question continuously for more than seven years and that the possession was visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999). Whether possession is adverse to the true owner is a question of fact. Id.
The proof required as to the extent of possession and dominion may vary according to the location and character of the land. It is ordinarily sufficient that the acts of ownership are of such a nature as one would exercise over her own property and would not exercise over that of another, and that the acts amount to such dominion over the land as to which it is reasonably adapted. Whether possession is adverse to the true owner is a question of fact.
Fulkerson v. Van Buren, 60 Ark. App. 257, 259-60, 961 S.W.2d 780, 782 (1998); see also Walker v. Hubbard, 31 Ark. App. 43, 787 S.W.2d 251 (1990); Hicks v. Flanagan, 30 Ark. App. 53, 782 S.W.2d 587 (1990).
The trial court found that neither Robertson nor his predecessor took steps that would place a third party on notice that they were claiming the land adversely. Robertson testified that, although he has not lived on the land since he acquired it in 1983, he and his family maintained the land or hired someone to do so. The testimony as to Robertson’s maintaining the land was disputed, with Lees’s witnesses stating that Robertson allowed the land to become overgrown while Lees maintained it. Based upon our review, we cannot say the circuit court’s findings are clearly against the preponderance of the evidence. Discrepancies in the evidence are matters involving credibility for the trier of fact to resolve, and we cannot find error in that regard.
Secondly, stronger evidence of adverse possession is required in cases where a family relationship exists than is necessary where no such relationship is present. Ueltzen v. Roe, 242 Ark. 17, 411 S.W.2d 894 (1967); Mitchell v. Hammons, 31 Ark. App. 180, 792 S.W.2d 333 (1990). The reason for this rule is that, as between parties with family relations, the possession of the land of one by the other is presumptively permissive or amicable, and, to make such a possession adverse, there must be some open assertion of hostile title, other than mere possession, and knowledge thereof brought home to the owner of the land. Bellamy v. Shryock, 211 Ark. 116, 199 S.W.2d 580 (1947). The trial court recognized and applied this higher standard of proof when it stated that it did not consider any actions of Lillian “Geda” Robertson as being hostile so as to establish adverse possession because her possession was during a time when the land was owned by heirs of Robertson’s grandfather. We affirm on this point.
Point Four
Finally, Robertson contends that the trial court erred in quieting title in Lees without the introduction of the survey or without determining where the boundary line was. Robertson argues that, because appellee did not introduce a survey, there is no proof in the record from which to ascertain whether the line of iron fenceposts placed by Lees does, in fact, correspond with the true boundary line. We agree. From the descriptions in the record of the parties’ respective lands, it is clear that there is no overlap. In his counterclaim, Lees alleged that he had obtained a survey that confirmed the location of the true boundary line to be in accordance with information received from Pat Richmond, his immediate predecessor in title. There was also testimony from Lees’s wife, Christine, that Lees had obtained a survey, that the surveyors had placed pins to mark the boundary, and that Lees had placed a fence post so they could see the boundary. Lees himself testified that although surveyors had marked the line about a year and a half earlier, it was unnecessary because he and William Robertson had already agreed on the location of the boundary in 1993, and that the fence posts that he (Lees) put up were on the agreed boundary line. Furthermore, William testified that Lees had told him about obtaining a second survey, which resulted in another boundary line, and caused Lees to place a line of metal fenceposts another twenty feet south. There was no testimony linking the line of metal fenceposts placed by Lees with the actual boundary line as established by one or either of Lees’s surveys. The trial court recognized this when he found in Paragraph 3 of his order:
3. The [appellee] is found to be the owner of the real property set forth in paragraph V of his Counterclaim and title to said tract is quieted and confirmed in [appellee]. Although there was much testimony about a survey that established the exact location of the line between the party’s property, no such survey was introduced into evidence. Therefore, the Court makes no finding as to the location on the ground of the property line between [appellant’s] and [appellees’s] tracts in relation to any buildings, fences, or other structures. (Emphasis added.)
Simply because Robertson is not entitled to prevail on his claims of adverse possession or boundary by acquiescence or agreement with regard to the old cedar-posted fence, does not mean that appellee is entitled have title to the disputed land quieted in him, as prayed. See Thomason v. Abbott, 217 Ark. 281, 229 S.W.2d 660 (1950). It was appellee’s burden of proof in his quiet title action to establish his allegations as to ownership of the land in question. Williams v. Campbell, 254 Ark. 592, 495 S.W.2d 512 (1973 ). He did not meet this burden. The only evidence as to the location of the “true” boundary consisted of the testimony of Pat Richmond and Christine Lees, both of whom testified that they had relied upon what they had been told by Von Robertson. Their testimony was as follows:
Pat Richmond’s Testimony:
“As far as I understand, the south boundary of my property and the north boundary of the Robertson property was somewhere, you know, this side of the little pump house.... The fence post with the yellow or orange survey tape in the picture is somewhere near where I would have understood the boundary to be.”
“... I’m assuming it’s the past boundary because she said it was very close to the house, . . . .”
Christine Lees’s Testimony:
“When we bought the property, I was shown that our line related to this litde well house over beside that little shed on this side of the clothesline.”
“[Y]our property goes past a clothesline up to the little well house there close to the shed.” (quoting Von Robertson)
“The disputed area is from the little well house and angles back over by the little building. This twenty, I think it’s twenty feet, back here. Almost from the bum barrel back.”
The best that can be said of Lees’s proof is that the true boundary fine between his and Robertson’s land lies somewhere, at some undefined location, south of the old cedar-posted fence line and running at an undefined angle in the vicinity of the pump house. Although the trial court’s order quieted title in Lees to the land described in his deed, such action was meaningless in the absence of proof of the location of the south boundary of Lees’s land, which the trial court expressly, and correctly we believe, found that it could not determine from the evidence. Because Lees did not meet his burden of proving the location of the disputed boundary, the trial court clearly erred in its finding that any part of the disputed land should be quieted in him. Therefore, we reverse on this point.
Affirmed in part and reversed in part.
Pittman, Neal, and Vaught, JJ., agree.
Griffen and Crabtree, JJ., dissent.
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Linker Hart, Judge.
Appellants, Excelsior Hotel and Twin City Fire Insurance Company, appeal from the Arkansas Workers’ Compensation Commission’s finding that appel-lee, Larry Squires, sustained a permanent anatomical impairment of thirty percent to the body as a whole. On appeal, appellants challenge the sufficiency of the evidence to support this finding and further contend that the Commission did not conduct a de novo review of the record. However, because the Commission failed to make specific findings of fact supporting its decision, we cannot conduct a meaningful review of the decision. Consequently, we reverse and remand for further findings of fact.
The parties stipulated that on March 25, 1998, appellee sustained compensable injuries to his ribs and left shoulder during his employment with appellant Excelsior Hotel. Appellants accepted the injuries as compensable and paid temporary total disability benefits from March 26 to June 14, 1998, and appellee returned to work on June 15, 1998. On November 21, 2001, a hearing was held before the administrative law judge on the issue of the anatomical impairment rating for appellant’s respiratory system.
According to the ALJ’s opinion of February 21, 2002, appellee, who performed maintenance work, fractured several ribs on his left side, which resulted in a hemorrhagic pleural effusion, when he fell three or four feet from a ladder and landed on a five-gallon bucket. The ALJ stated that Dr. Jack A. Griebel, Jr., a pulmonologist and critical care specialist, began treating appellee in April of 1998. Further, the ALJ observed that Dr. Griebel testified that he drained the fluid between appellee’s lung and chest wall so that appellee’s lung could more fully expand and allow normal expiration. In May of 1998, Dr. Griebel suggested that appellee return to light duty work, and he continued to prescribe medication and see appellee through August of 1998.
The ALJ further wrote that Dr. Griebel again saw appellee in January of 1999, when appellee complained of occasional difficulty breathing and had mild expiratory wheezing with maximal expiratory effort while not at rest. The doctor noted that the wheezing was a sign of obstructive lung disease, which would result from smoking or from emphysema. Further, Dr. Griebel noted that appellee had some chronic scarring in his lung base and that fluid and a contused lung could cause scarring. Also, Dr. Griebel explained that appellee had a strong blow to the chest that caused bloody fluid to build up and that it would be possible to have a contused lung concomitant with the fluid.
According to the ALJ, Dr. Griebel saw appellee on May 12, 1999, for shortness of breath, coughing, and occasional wheezing. The doctor concluded that appellee had reactive airway disease syndrome, asthma secondary to pulmonary-contusion syndrome, as a result of his fall and multiple rib fractures. He also opined that appellee had acute bronchitis exacerbating the reactive airway disease syndrome with asthma flair, resolving, and chronic muscu-loskeletal pain from the scapular and rib fracture injury.
The ALJ stated that in November of 1999, Dr. Griebel opined that appellee suffered from reactive airway disease with probable “overlined” chronic obstructive pulmonary disease. The doctor did not, however, know if the chronic obstructive pulmonary disease was preexisting or if there was any connection to the rib fractures. On August 23, 2000, Dr. Griebel’s examination revealed that appellee’s thorax was of normal AP diameter, which indicated that any chronic obstructive lung disease was not “real severe.” Dr. Griebel stated that reactive airway disease syndrome could be generated from a pulmonary contusion, a blow to the lung at the time of the trauma, but that he was unable to determine whether appellee had a pulmonary contusion because the pleural fluid would have been hiding it at the time.
The ALJ wrote that on January 8, 2001, Dr. Griebel further opined that appellee had significant obstructive airway defect abnormalities on his pulmonary-function testing, as documented on the values of November 18, 1999, with an FEV1 of 2.13, fifty-three percent of predicted, and that this suggested, by American Medical Association criteria, a permanent impairment of thirty percent to the body as a whole. Dr. Griebel believed that the test was calibrated daily. Further, Dr. Griebel noted that appellee continued to require regular use of inhaled bronchodilator therapy and had some limitation of his lung capacity secondary to pleural thickening and scarring from the severe rib fractures. Dr. Griebel also asserted that it was unclear how much of appellee’s current lung impairment, reactive airway disease and chronic obstructive pulmonary disease, was secondary to the trauma. Dr. Griebel did note that appellee was relatively asymptomatic prior to the injury and had been symptomatic after the injury.
Also, according to the ALJ, Dr. Griebel explained that two conditions were included in appellee’s impairment rating: reactive airway disease and chronic obstructive pulmonary disease. Dr. Griebel stated that while the chronic obstructive pulmonary disease was not likely to be due to the trauma, the reactive airway disease component could well all be due to the trauma. Further, the doctor stated that it was certainly a possibility that the chronic obstructive pulmonary disease was aggravated by the injury. Dr. Griebel concluded that it would seem a logical conclusion and it was his opinion that if appellee had no symptoms prior to the injury and has symptoms after the injury, there was an aggravation of the chronic obstructive pulmonary disease. Dr. Griebel further stated that if there has been an aggravation of the preexisting condition combined with the reactive airway disease, which was secondary to the injury, the impairment rating would be thirty percent.
After reciting the above testimony, the ALJ stated that the “assumption that there was no prior symptom of [chronic obstructive pulmonary disease] is consistent with the medical record and [appellee’s deposition] testimony.” Further, the ALJ noted that in estimating appellee’s impairment, Dr. Griebel referred to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), and according to one table, a twenty-six to fifty percent moderate impairment of the whole person was justified when FEV1 was between forty-one to fifty-nine percent of predicted. The ALJ wrote that “the only specialist in pulmonology, [appellee’s] treating physician, tested him objectively and rendered an opinion consistent with the AMA Guides.” The ALJ further stated that “[ajlthough the claimant could possibly have had pulmonary problems related to his smoking, or even to emphysema, [appellee’s] testimony and the medical record do not support such an assumption.” The ALJ concluded that a preponderance of the evidence supported appellee’s request for benefits for permanent anatomical impairment.
Appellants appealed the ALJ’s decision to the Commission, and the Commission affirmed the ALJ. In its opinion, the Commission stated that it had “carefully conducted a de novo review of the entire record,” that the ALJ’s findings of fact were correct, that it was affirming the ALJ’s decision, and that it adopted his opinion, including his findings of fact and conclusions of law.
On appeal from the Commission’s decision, appellants raise three issues. First, appellants argue that there was not substantial evidence that appellee’s lung condition resulted from his injury. In making this argument, appellants further assert that there was not substantial evidence that appellee’s condition was permanent or that his injury was the major cause of any permanent disability. Second, they argue that there was not substantial evidence that appellee’s permanent impairment rating was thirty percent to the body as a whole. In this argument, they also insist that in assessing appellee’s permanent impairment rating, the Commission disregarded the criteria set forth in the AMA Guides. Appellants also assert that the pulmonary-function tests and other information used to determine appellee’s impairment were not objective. And third, appellants argue that the Commission did not conduct a de novo review of the record.
We must reverse and remand this case to the Commission for further factual findings. The Commission is charged with the duty to make and enter findings of fact and rulings of law. Ark. Code Ann. § 11-9-207(a) (5) (Repl. 2002). When the Commission fails to make specific findings on an issue, it is appropriate that the case be reversed and remanded for the Commission to make such findings. Wright v, American Transp., 18 Ark. App. 18, 709 S.W.2d 107 (1986).
In Wright, the Commission found that the claimant had failed to prove by a preponderance of the evidence her claim for additional medical and temporary total disability benefits. On appeal, this court reversed and remanded because the Commission failed to make specific findings on which it relied to support its decision. We observed that the Commission did not make findings of fact on several matters, including whether the claimant sustained a compensable injury, whether her healing period had ended if there was a compensable injury, whether she was disabled, whether she required further medical services, or whether the job-related injury aggravated a preexisting latent disease. We concluded that absent these findings of fact, we were not in a position to make a meaningful review of the Commission’s decision.
In the case at bar, we are faced with a similar dilemma. Because of the absence of several findings of fact, we are not in a position to make a meaningful review of the Commission’s decision. In the opinion adopted by the Commission, the ALJ concluded that a preponderance of the evidence supported appellee’s request for benefits for a permanent anatomical impairment. In discussing his conclusion, the ALJ stated that the assumption that there was no prior symptom of chronic obstructive pulmonary disease was consistent with the medical record and appellee’s deposition testimony, that although the claimant could possibly have had pulmonary problems related to his smoking, or even to emphysema, appellee’s testimony and the medical record do not support such an assumption, that a twenty-six to fifty percent moderate impairment of the whole person was justified when FEV1 was between forty-one to fifty-nine percent of predicted, and that Dr. Griebel tested him objectively and rendered an opinion consistent with the AMA Guides.
This conclusory discussion, however, leaves several matters unsupported by specific findings of fact. For instance, a “compensable injury” is an “accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment....” Ark. Code Ann. § ll-9-102(4)(A)(i) (Repl. 2002). The parties stipulated that appellee sustained compensable injuries to his ribs and left shoulder during his employment. While the ALJ’s discussion suggests that appellee also sustained a com-pensable lung injury arising out of and in the course of employment, neither the ALJ nor the Commission made specific findings of fact to support this conclusion.
Further, “[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. § 11 — 9— 102(4)(F)(ii)(a) (Repl. 2002). And “[i]f any compensable injury combines with a preexisting disease or condition ... to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.” Ark. Code Ann. § 11 — 9-102(4)(F)(ii)(b) (Repl. 2002). “Major cause” is defined as “more than fifty percent ... of the cause.” Ark. Code Ann. § 11 — 9—102(14)(A) (Repl. 2002). Here, neither the ALJ nor the Commission made specific findings of fact supporting a conclusion that appellee’s injury was the major cause of his impairment.
“Permanent impairment” has been defined as any permanent functional or anatomical loss remaining after the healing period had ended. Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994). Further, the AMA Guides define “permanent impairment” as an “impairment that has become static or well stabilized with or without medical treatment and is not likely to remit despite medical treatment.” The AMA Guides further qualify the definition by noting that “[a] permanent impairment is considered to be unlikely to change substantially and by more than [three percent] in the next year with or without medical treatment.” Again, there were no specific findings of fact regarding the permanency of appellee’s condition.
Further, the Commission was required to adopt an impairment rating guide to be used in the assessment of anatomical impairment, and the Commission has adopted the AMA Guides to be used in this assessment. Ark. Code Ann. § ll-9-522(g)(l)(A) (Repl. 2002); W.C.C. Rule 34. The Commission is authorized to decide which portions of the medical evidence to credit and to translate this medical evidence into a finding of permanent impairment using the AMA Guides; the Commission may assess its own impairment rating rather than rely solely on its determination of the validity of ratings assigned by physicians. Avaya v. Bryant, 83 Ark. App. 273, 105 S.W.3d 811 (2003). In the case at bar, neither the ALJ nor the Commission made, using the criteria found in the AMA Guides, any specific findings of fact concerning the assessment of the medical evidence and appellee’s impairment rating.
Also, a compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. §11-9-102(4)(D) (Repl. 2002). “Objective findings” are “those findings which cannot come under the voluntary control of the patient.” Ark. Code Ann. § 11-9-102(16)(A)(i) (Repl. 2002); see Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001). Any determination of the existence or extent of physical impairment must be supported by objective and measurable physical findings. Ark. Code Ann. § ll-9-704(c)(l)(B) (Repl. 2002). Here, the ALJ concluded that the tests were objective; he did not make specific findings of fact to support that conclusion.
While there may be evidence in the record sufficient to support an award of benefits, neither the ALJ nor the Commission made the specific findings of fact necessary for this court to carry out a meaningful review. The failure of the Commission to make these specific findings of fact require reversal and remand of this case.
Finally, “ [w]hen deciding any issue, administrative law judges and the commission shall determine, on the basis of the record as a whole, whether the party having the burden of proof on the issue has established it by a preponderance of the evidence.” Ark. Code Ann. § ll-9-704(c)(2) (Repl. 2002); Ark. Code Ann. § 11-9-705 (a) (3) (Repl. 2002). It is well settled that the Commission reviews an ALJ’s decision de novo, and it is the duty of the Commission to conduct its own fact-finding independent of that done by the ALJ. Crawford v. Pace Indus., 55 Ark. App. 60, 929 S.W.2d 727 (1996). The Commission does not review the ALJ’s decision to determine whether there was substantial evidence to support the ALJ’s findings; rather, the Commission makes its own findings in accordance with the preponderance of the evidence. See Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).
We note that the author of the Commission’s concurring opinion stated that the ALJ, “who heard the live testimony and observed the demeanor of the witnesses, found credible the claimant’s testimony that he was asymptomatic before the fall and that all of his symptoms arose after the fall.” First, contrary to the concurrence, there was no live testimony given at the hearing. Second, the passage also suggests that the author of the concurrence may have given some deference to the ALJ’s findings of fact. As we held in Crawford, the Commission must conduct a de novo review of the record and may not give any deference to the findings of the ALJ. Accordingly, we remand to the Commission for specific findings of fact and conclusions of law to support their decision.
Reversed and remanded.
Pittman and Robbins, JJ., agree.
And neither the Commission nor the ALJ considered the testing criteria set forth in the AMA Guides.
However, should the Commission, after conducting the de novo review, find identical facts and reach the same conclusion as the ALJ, it may adopt the ALJ’s decision as its own, assuming that the ALJ has made sufficient findings. Lowe v. Car Care Marketing, 53 Ark. App. 100, 919 S.W.2d 520 (1996). | [
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ohn B. Robbins, Judge.
Appellant E-rTon Dynamics Indus-J trial Corporation appeals the judgment rendered in favor of appellees Mickie Hall and Shay Hall in a products-liability case tried before a jury in Greene County Circuit Court. Appellee Miickie sued appellant on her behalf and as parent of her injured child Shay, alleging that the all-terrain vehicle manufactured by appellant was defective and negligently manufactured. The jury rendered $100,000 damage awards to each appellee on general-verdict forms. Appellant argues on appeal that the trial court (1) abused its discretion by permitting an expert witness to testify as to potential future surgery that Shay might undergo, and (2) erred by failing to instruct the jury on vicarious liability of Mickie for any negligence of her ex-husband, Danny Hall, who was driving the vehicle when Shay was injured. We find merit to the first argument and reverse and remand for a new trial.
The testimony presented to the jury revealed the following course of events relevant to the points on appeal. On the evening of August 5, 1999, Danny Hall was driving, a 90cc all-terrain vehicle (a four-wheeler), accompanied by his daughters Shay and Haley. The vehicle was manufactured by appellant, but Danny exchanged some of the parts on the 90cc with those from a 50cc model to make it appear to be a 50cc all-terrain vehicle. Shay, almost three years old, sat directly in front of Danny, and Haley, four years old, sat directly in front of Shay. Shay was not wearing shoes. Danny was driving up the incline of his driveway at about seven or eight miles per hour when he noticed blood. Danny looked down, where he observed that Shay’s toes on her right foot were traumatically amputated. Shay was taken by ambulance to the hospital, where she stayed for five days. Shay’s toes could not be reattached. Shay had three debridement procedures to cleanse the wound that were performed under general anesthesia. Shay was administered intravenous antibiotics and pain medication. Shay was treated in the hospital and thereafter by an orthopedic surgeon, Dr. William Warner. She was released with bandages and a splint on her foot, and she was prescribed medication to prevent infection and to treat pain. Shay’s medical bills at the time of trial totaled approximately $20,000.
At trial, Dr. Warner’s testimony, as recorded in a deposition, was read to the jury. At one point in the reading, appellant’s counsel objected that the doctor should not be permitted to speculate; this was overruled. Dr. Warner explained that due to Shay’s age at the time of injury, the bones where her toes were amputated could continue to grow under the s'kin of her foot. If that were to occur, revision surgery under general anesthesia would be conducted to remove the protruding bone. Dr. Warner stated that he had treated Shay until she was about five-and-a-half years old and that she had healed very well without any bone overgrowth to date, but that he expected her to grow until she was fourteen or fifteen years old. “[A]ny time now until she stops growing, there is a chance for this overgrowth.” When cross-examined, Dr. Warner said “I can’t tell you whether it will happen or whether it won’t happen.” Dr. Warner planned to have Shay make return appointments every two to three years to check for overgrowth because it was a “realistic risk.” Appellee states that a medical record was admitted at trial demonstrating Dr. Warner’s more certain opinion that future surgery would he likely; however, that record does not appear in the transcript.
Appellant objected to this portion of the doctor’s testimony because of the uncertainty of bone overgrowth. The trial judge determined that he would let the entirety of the deposition testimony be read to the jury, overruling the objection on the basis that the doctor explained the basis for his opinion. Appellant argued this point again in a motion for new trial, which was also denied. Appellant argues that this ruling is reversible error. We agree that an abuse of discretion occurred.
The jury was instructed on past and future medical expenses as an element of damages. Arkansas Model Jury Instruction 2204 permits recovery for “[t]he reasonable expense of any necessary medical care” and, if applicable, “including ... the present value of such expense reasonably certain to be required in the future.” Future medical expenses need not be proven with the same specificity as past medical expenses. Matthews v. Rogers, 279 Ark. 328, 651 S.W.2d 453 (1983). Consistent with the model instruction, showing a “degree of medical certainty” bolsters recovery of future medical expenses. West Union v. Vostatek, 302 Ark. 219, 788 S.W.2d 952 (1990); Williams v. Gates, 275 Ark. 381, 630 S.W.2d 34 (1982). There should be shown, with some degree of medical certainty, the need for future medical care. Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 784 S.W.2d 755 (1990); Williams v. Gates, supra; Howard Brill, Arkansas Law of Damages (3d ed.) §29-1.
The issue raised on appeal is the admissibility of Dr. Warner’s testimony on future medical expenses. To be admissible, an expert’s opinion must represent his professional judgment as to the most likely or probable result. Jacuzzi Bros., Inc. v. Todd, 316 Ark. 785, 875 S.W.2d 67 (1994). In Jacuzzi Bros., Inc. v. Todd, supra, the supreme court held that a neurosurgeon’s opinion that Todd had a thirty-percent chance of requiring a future surgery was not the most likely result and therefore constituted speculative evidence. We cannot logically distinguish the present appeal from Jacuzzi Bros., Inc., v. Todd, supra. Dr. Warner’s testimony that Shay may require future surgery, which he could not predict with any degree of certainty, is speculative and therefore inadmissible. But see Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983) (holding that the trial court could properly consider future medical expenses where only the past medical expenses were certain, a doctor testified that appellee might need future medical procedures, and appellee testified he still had pain in the area); see also Willson Safety Prods. v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990).
Ordinarily, a general verdict is a complete entity that cannot be divided, requiring a new trial upon reversible error. McDaniel v. Linder, 66 Ark. App. 362, 990 S.W.2d 593 (1999). However, a new trial can sometimes be avoided by the entry of a remittitur if the error relates to a separable item of damages, which is fixed by the highest estimate of the element of damage affected by the error. Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986); Swenson v. Hampton, 244 Ark. 104, 424 S.W.2d 165 (1968). If we are at a complete loss to say what damages the jury would have allowed if the improper evidence had not been considered, and if we cannot with confidence arrive at any maximum figure that the jury would surely have allowed absent the error, a new trial cannot be avoided by the entry of remittitur. Woods v. Kirby, 238 Ark. 382, 382 S.W.2d 4 (1964). If it is necessary to speculate in order to fix a remittitur, we reverse and remand the case for a new trial.' Arkansas State Highway Comm’n v. Perryman, 247 Ark. 120, 444 S.W.2d 564 (1969); Arkansas State Highway Comm’n v. Dan, 246 Ark. 204, 437 S.W.2d 463 (1969); Southwestern Bell Telephone Co. v. Fulmer, 269 Ark. 727, 600 S.W.2d 450 (Ark. App.1980). Remand is the only remedy in this instance.
Having decided that the doctor’s speculative testimony was allowed in error, we now consider appellant’s contention that the trial court erred by refusing its jury instruction, as it is likely to arise upon remand. At the conclusion of the evidence, appellant’s counsel proffered the following jury instruction:
E-Ton contends and has the burden of proving that at the time of the occurrence Mickie Hall and Danny Hall were parents of Shay Hall. If you so find, then any negligence on the part of Danny Hall would be charged to Mickie Hall.
Appellant based this requested instruction on its contention that Danny was negligent in placing his daughter, barefoot, on a vehicle that he had altered and that was deemed by the manufacturer to be unsuitable for children under age twelve. Appellant cites Stull v. Ragsdale, 273 Ark. 277, 620 S.W.2d 264 (1981), in support of the proposition that where a family relation exists, each parent at all times impliedly authorizes the other to act for him or her in the common care and control of their children, so that each becomes responsible for the acts of the other in that respect, and this implied authority does not rest upon legal fiction of unity of husband and wife, but is founded upon the family relation. The supreme court determined that the policy rested on the “community of interest between the husband and wife in regard to the care and supervision of their children.” Id. at 280. In Stull, the supreme court noted that the purpose of our comparative negligence statute was to distribute the total damages among those who cause them. It held that in a negligence action concerning an automobile accident where the wife was 75% negligent and the truck driver who struck and killed her daughter was 25% negligent, her husband’s award would be reduced by 75% of the negligence attributed by the jury to the wife.
Appellee counters this argument by pointing out that Mickie and Danny were divorced in 1997, eliminating the family-relation, common care, and common supervision, unlike the married persons in Stull. We agree with appellee.
Appellee also points out that Danny was never made a party to this lawsuit in order for the jury to assess apportionment of fault. A jury should not be permitted to assign a percentage of fault to a person who is not a party to the suit. See generally Booth v. United States Indus., 583 F. Supp. 1561 (W.D. Ark. 1984). This rule derives from Arkansas’s comparative-fault statute, which provides that a plaintiffs fault may be compared with the fault chargeable to “the party or parties from whom [he] seeks to recover damages.” Ark. Code Ann. § 16-64-122(a) (Supp. 2001). See also BelzBurrows, L.P. v. Cameron Constr. Co., 78 Ark. App. 84, 78 S.W.3d 126 (2002). Nevertheless, Arkansas law expressly contemplates that a defendant may claim that a third person, who is not a party to the action, is responsible for the plaintiffs damages. See BelzBurrows, L.P., supra. Appellant so claimed in its answer to the complaint. The only proviso is that, before the jury can absolve the defendant of liability, it must find that the third person was the sole proximate cause of the plaintiffs damages. See, e.g., Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987); Hill Constr. Co. v. Bragg, 291 Ark. 382, 725 S.W.2d 538 (1987); Beevers v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967). Such an argument was a legitimate one to make to the jury. The non-model jury instruction that appellant proposed was not, and thus we affirm the trial court on this point.
We reverse and remand due to the admission of speculative expert testimony.
Pittman, J., agrees.
Hart, J., concurs.
Danny placed parts from the 50cc he owned onto the 90cc. Danny explained that his daughter Haley competitively raced four-wheelers, and by altering the 90cc appearance, Haley used a faster model in 50cc model races. | [
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Layton Roaf, Judge.
Appellant Liberty Mutual Insurance Company (“Liberty Mutual”) appeals from the trial court’s grant of summary júdgment to appellee Donald Whitaker. The trial court found that Liberty Mutual was not entitled to pursue its subrogation interest against Whitaker and recover workers’ compensation benefits it paid to its insured as a result of a motor-vehicle accident caused by Whitaker’s negligence. On appeal, Liberty Mutual argues that the trial court erred in granting summary judgment to Whitaker. We agree, and reverse and remand.
This lawsuit arises from a motor-vehicle accident involving Rose LaFountaine-Glover (“Glover”) and Whitaker on April 14, 1999, in which Whitaker’s vehicle crossed the center line and struck the front of Glover’s vehicle. Glover sustained injuries and incurred other damages as a result of the accident. At the time of the accident, Glover was acting within the course and scope of her employment with TCBY Systems, Inc., of Little Rock (“TCBY”). Appellant Liberty Mutual is the workers’ compensation carrier for TCBY, and it accepted Glover’s injuries as com-pensable, paying workers’ compensation benefits in the amount of $14,370.31 to Glover.
On March 15, 2000, Glover filed a lawsuit against Whitaker, seeking damages resulting from the motor-vehicle accident. Southern Farm Bureau (“Southern Farm”), Whitaker’s liability insurance carrier, acting on behalf of its insured, entered into a settlement agreement with Glover two days later, on March 17, 2000. In exchange for payment of $45,000, Glover signed a release agreement in favor of Whitaker and Southern Farm. The agreement provided that Whitaker and Southern Farm were released from “any and all claims” on account of or in “any way growing out of the injuries sustained by” Glover in the accident. The settlement agreement was not approved by a court or the Workers’ Compensation Commission. An order was entered on March 31, 2000, dismissing Glover’s complaint with prejudice.
On February 4, 2002, Liberty Mutual filed suit against Glover and Whitaker, jointly and severally, seeking to recover the workers’ compensation benefits it had paid to Glover. Liberty Mutual’s complaint was based on the subrogation provisions of Ark. Code Ann. § 11-9-410 (Repl. 2002), as well as the theories of negligence, unjust enrichment, and restitution.
Whitaker subsequently filed a motion for summary judgment, alleging that Liberty Mutual could not recover from him as a matter of law. Whitaker alleged that he had nothing to do with the settlement agreement, which was procured by his insurance company, and that Liberty Mutual’s claim for a subrogation lien did not state a cause of action against him because he never had control of the funds. Whitaker also asserted that Liberty Mutual’s claim against him was barred by the release signed by Glover and that its claim for unjust enrichment and restitution did not state a cause of action against him because he never had possession of the settlement funds. Whitaker attached the affidavit of Southern Farm’s insurance adjuster, who stated that Southern Farm never had any notice of Liberty Mutual’s purported lien and that Whitaker had no control over the settlement or custody of the funds.
In its response to Whitaker’s motion for summary judgment, Liberty Mutual argued that it was entitled to a subrogation lien on the proceeds of the settlement agreement under section 11-9-410 and that Whitaker and Glover had violated the requirements of that statute by not giving it notice of the settlement and by not having the settlement approved by a court or the Commission. Liberty Mutual also argued that the release by Glover did not preclude it from pursuing judgment against Whitaker because the release did not address its subrogation rights. In addition, Liberty Mutual stated that it had a valid cause of action for unjust enrichment and restitution against Whitaker. It attached the affidavit of its claims manager, Kris Opal, who stated that Liberty Mutual had sent a letter to Whitaker on October 25, 1999, notifying him that it had paid benefits to Glover and that it was entitled to a subrogation lien to recover such payments. Opal also stated that Liberty Mutual received no notice that a lawsuit was filed or that a settlement agreement was reached until after March 17, 2000.
After a hearing, the trial court found that Liberty Mutual failed to protect its own interests by failing to give notice of its lien to Southern Farm and that notice to Whitaker was not adequate. The trial court stated that Southern Farm had procured a full, final, and complete release in favor of Whitaker, without notice of any lien by Liberty Mutual, and that Whitaker was not subject to suit for the lien because he had been fully and properly released by Glover. The trial court granted partial summary judgment to Whitaker, stating that Liberty Mutual’s claims against Glover were not affected by the order. Liberty Mutual then moved to have its claims against Glover dismissed without prejudice, which was granted by the trial court. Liberty Mutual now appeals from the trial court’s grant of summary judgment to Whitaker.
Liberty Mutual argues two main points on appeal: (1) that the trial court misapplied and incorrectly interpreted Ark. Code Ann. § 11-9-410 by ruling that Liberty Mutual was required to give notice of its lien to Whitaker’s insurer in order to protect the lien; and (2) that the trial court erred by ruling that the release procured by Whitaker without the knowledge or consent of Liberty Mutual prohibits Liberty Mutual from pursuing its right of subrogation against him. More specifically, Liberty Mutual asserts that Glover and Whitaker, along with Whitaker’s insurer, failed to comply with the settlement requirements provided in Ark. Code Ann. § ll-9-410(c). In addition, Liberty Mutual contends that the release signed by Glover in favor ofWhitaker is not effective to bar its claims against Whitaker because it had no notice of the release agreement. Liberty Mutual thus contends that it is entitled under Ark. Code Ann. § 11-9-410 to pursue an action against Whitaker, the third-party tortfeasor, to recover the workers’ compensation benefits it paid to Glover and that the trial court erred in interpreting this statute and in finding that it was required to give notice to Southern Farm to protect its lien.
On appeal, this court need only decide if the grant of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). The burden of sustaining a motion for summary judgment is on the movant. Id. All proof submitted must be viewed in the light most favorable to the party resisting the motion, and any doubts or inferences are resolved against the moving party. Id. Once the moving party has established a prima facie entitlement to summary judgment by affidavits or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. Summary judgment is appropriate under Ark. R. Civ. P. 56(c) when there is no genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Id.
According to Ark. Code Ann. § 1 l-9-410(a), the making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee to make a claim or maintain an action in court against any third party for the injury, but the employer or the employer’s carrier shall be entitled to reasonable notice and opportunity to join in the action. If the employer or carrier does join in the action brought by the employee, they are entitled to a “first lien” upon two-thirds of the net proceeds recovered in the action, or so much as is necessary to discharge the actual liability of the employer and the carrier for compensation paid to the injured employee, after the payment of reasonable costs of collection. Ark. Code Ann. § ll-9-410(a)(l)(B) and (a)(2). In addition, sections ll-9-410(b) and (c) state:
(b) Subrogation. (1) An employer or carrier liable for compensation under this chapter for the injury or death of an employee shall have the right to maintain an action in tort against any third party responsible for the injury or death. However, the employer or the carrier must notify the claimant in writing that the claimant has the right to hire a private attorney to pursue any benefits to which the claimant is entitled in addition to the subrogation interest against any third party responsible for the injury or death.
(2) After reasonable notice and opportunity to be represented in the action has been given to the compensation beneficiary, the liability of the third party to the compensation beneficiary shall be determined in the action, as well as the third party’s liability to the employer and carrier.
(3) (A) After recovery shall be had against the third party, by suit or otherwise, the compensation beneficiary shall be entitled to any amount recovered over and above the amount that the employer and carrier have paid or are liable for in compensation, after deducting reasonable costs of collection.
(B) In no event shall the compensation beneficiary be entitled to less than one-third (1/3) of the amount recovered from the third party, after deducting the reasonable cost of collection.
(4) An employer or carrier who is liable for compensation under this chapter on account of injury or death of an employee shall be entitled to maintain a third party action against the employer’s uninsured motorist coverage or underinsured motorist coverage.
(5) The purpose and intent of this subsection is to prevent double payment to the employee.
(c) Settlement of Claims. (1) Settlement of claims under subsections (a) and (b) of this section must have the approval of the court or of the commission, except that the distribution of that portion of the setdement which represents the compensation payable under this chapter must have the approval of the commission.
(2) Where liability is admitted to the injured employee or his or her dependents by the employer or carrier, the cost of collection may be deducted from that portion of the settlement under subsections (a) and (b) of this section representing compensation, upon direction and approval of the commission.
(3) No party shall settle a claim under subsections (a) and (b) of this section without first giving three (3) days written notice to all parties with an interest in the claim of the intent to settle.
(4) Each party with an interest in a claim under subsections (a) and (b) shall cooperate with all other parties in litigation and settlement of such claims.
As Liberty Mutual asserts, Glover, Whitaker, and his insurer failed to comply with the requirements of section ll-9-410(c) in settling Glover’s claims against Whitaker because they did not receive the approval of a court or the Commission, nor did they give Liberty Mutual three days’ written notice of their intent to settle. Although it is clear that the settlement agreement in this case violated the provisions of section ll-9-410(c), the statute does not address what Liberty Mutual’s remedy is for this violation, or whom it may be against. Although there is no case that is precisely on point with the issue in this case, there are a number of cases cited by the parties that interpret this statute in similar factual situations.
In St. Paul Fire & Marine Insurance Co. v. Wood, 242 Ark. 879, 416 S.W.2d 322 (1967), the injured employee, Wood, filed suit against the tortfeasor, and the workers’ compensation carrier, St. Paul, intervened in the action. Wood and the tortfeasor then reached an agreement with respect to a settlement amount, but St. Paul and the tortfeasor were unable to reach an agreement. The employee and tortfeasor thus “settled around” St. Paul, and the release agreement preserved all of St. Paul’s rights against the tortfeasor. This left St. Paul with “all of the right of subrogation against [the tortfeasor] that was given to it by law and that it would have had if Wood had taken no action whatsoever.” Id. at 889. St. Paul then filed suit against Wood, claiming entitlement to a lien on the proceeds of the settlement. The supreme court, employing a “technical” definition of “recovery,” held that St. Paul was not entitled to a lien upon the proceeds in this situation, as the settlement agreement had reserved to St. Paul its own cause of action against the tortfeasor. Id. Where the suit against the tort-feasor proceeds to judgment, however, or the settlement agreement does not preserve the rights of the carrier against the tortfeasor, the carrier is then entitled to a lien on the recovery. Id. at 886-88. The court also noted that allowing the carrier to pursue its own claims against the tortfeasor would not violate the rule against splitting causes of action, because that rule inures to the benefit of the defendant and the defendant has specifically consented to the splitting of the cause of action between the carrier arid the employee by the terms of the settlement agreement. Id. at 889.
The supreme court further clarified its holding in Wood in Travelers Insurance Co. v. McCluskey, 252 Ark. 1045, 483 S.W.2d 179 (1972), and stated that the employee may “settle around” the compensation carrier and reserve the carrier’s rights against the tortfeasor; however, since the purpose of the statute is to protect both the compensation carrier and the employee, the court stated that it would thereafter require that the proceeds of any settlement be subject to the lien of the employer or carrier, unless the settlement has been approved by a court having jurisdiction or by the Commission, after the carrier had been afforded adequate opportunity to be heard.
In Amos v. Stroud, 252 Ark. 1100, 482 S.W.2d 592 (1972), the court reiterated that there are not two separate and distinct causes of action against the third-party tortfeasor by the compensation carrier and the injured employee; instead, there is only one cause of action, which may be split only with the consent of the defendant in the tort action.
Subsequently, in Jackson Cookie Co. v. Fausett, 17 Ark. App. 76, 703 S.W.2d 468 (1986), this court held that where an employer and carrier have had reasonable notice and an opportunity to join in a third-party action, the employer and carrier must intervene in the action to have a right to a credit against the proceeds. The court in John Garner Meats v. Ault, 38 Ark. App. Ill, 828 S.W.2d 866 (1992), applied the holding in Fausett and found that the employer and carrier had waived their right to a lien against the settlement proceeds by failing to intervene in the third-party' action where they had notice and an opportunity to join the lawsuit, despite the employee’s and third-party’s failure to comply with section 11-9-410. Id. By not intervening, this court found that the carrier waived the right that the statute was designed to protect. Id.
Finally, in Wentworth v. Sparks Regional Medical Center, 58 Ark. App. 242, 950 S.W.2d 221 (1997), a case relied upon heavily by Liberty Mutual, the injured employee settled with the third-party tortfeasor, without notice to her compensation carrier and without court or Commission approval. The release executed by the employee failed to reserve and protect any subrogation or lien rights of the carrier, and it operated as a bar to any action by the carrier against the tortfeasor. The employee never filed a lawsuit against the tortfeasor. Id. The court noted that an employee and a tortfeasor may settle around the employer or carrier’s right to a lien on the settlement proceeds where at least three conditions are met: (1) the settlement agreement between the employee and third party must protect the statutory right of the employer or carrier to pursue an action against the third party tortfeasor; (2) the employer or carrier must be provided reasonable notice of the proposed settlement and an opportunity to be heard; and (3) the settlement agreement must be approved by a court or the Commission. Id. The court held that the settlement agreement in that case failed to meet these conditions and thus found that the carrier was entitled to a credit based upon the settlement. Id. The court also noted that section 1 l-9-410(c) had been revised to make these conditions even more explicit, by requiring that the parties to a settlement give three days’ written notice of their intent to settle and that they cooperate with all other parties with an interest in a settlement. Id.
Although none of these cases are controlling of the present case, their holdings are relevant to the interpretation given to section 11-9-410 by the appellate courts. From these cases, it is clear that Liberty Mutual in this case was denied its statutory right either to participate in the action against the tortfeasor or to have notice of the settlement and an opportunity to be heard. It is also clear that Liberty Mutual is entitled, under the holding in Went-worth, supra, to a credit against the settlement proceeds; however, that case involved the employee and not an action by the carrier against the tortfeasor as in this case. Liberty Mutual does not argue that it cannot pursue its lien against Glover, and it is apparent under Wentworth that it may do so. Rather, Liberty Mutual asserts that it may also assert its lien against Whitaker in this situation.
The trial court found that Liberty Mutual was not entitled to assert its lien against Whitaker because it had not given notice of its lien to Southern Farm and because the release signed by Glover barred any action by Liberty Mutual against Whitaker. First addressing the issue of the release, Liberty Mutual argues that it cannot be bound by this release agreement because it did not have notice of the agreement. Liberty Mutual primarily relies on general insurance case law for the proposition that no act of the insured releasing the wrongdoer from liability can defeat the insurer’s rights when a release is given without the insurer’s knowledge or consent, and when the wrongdoer has full knowledge of the insurer’s right of subrogation. Floyd v. Home Ins. Co., 250 Ark. 915, 467 S.W.2d 698 (1971); Sentry Ins. Co. v. Stuart, 246 Ark. 680, 439 S.W.2d 797 (1969); see also St. Paul Fire & Marine Ins. Co. v. Murray Guard, Inc., 343 Ark. 351, 37 S.W.3d 180 (2001); Daves v. Hartford Accident & Indem. Co., 302 Ark. 242, 788 S.W.2d 733 (1990).
In Sentry, supra, the insurer filed suit against its insured and the third-party wrongdoer to recover medical payments it made to its insured after the insured and the wrongdoer had settled the claim without notice to the insurer. The court held that the insurer’s cause of action against the wrongdoer was not terminated by the release executed by the insured. Id. Also, in Daves, supra, the insured filed suit against the tortfeasor and subsequently settled the suit without knowledge of his insurer, Hartford. Hartford then brought suit against its insured and the tortfeasor’s insurer, Sentry, claiming a statutory lien on the proceeds of the settlement. Although the release specifically stated that the insured would indemnify Sentry against future claims by Hartford, the court found that Hartford was entitled to assert its statutory lien against Sentry, noting that Sentry had full knowledge of the subrogation claim and could not ignore its responsibility to pay the lien even though it may have made improvident payment of the settlement proceeds to the insured. Id. In Hartford Insurance Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971), the court reached the opposite result and held that the release was effective against the compensation carrier; however, the court seemed to partially base its holding upon the fact that the release was executed prior to any workers’ compensation claim being filed, and in addition, the wrongdoer had no notice of any potential claim by the carrier.
It is undisputed in this case that the release agreement was executed without Liberty Mutual’s knowledge or consent. Also, Liberty Mutual’s affidavit states that a letter was sent to Whitaker, the wrongdoer, informing him of its subrogation right prior to the settlement in this case, and Whitaker did not dispute this fact. Thus, we conclude that the trial court was incorrect in finding that the release operated to bar any claims by Liberty Mutual against Whitaker.
The trial court also based its decision on the fact that Liberty Mutual did not give notice of its lien to Whitaker’s insurance company, Southern Farm, and the trial court found that notice to Whitaker was not sufficient under the circumstances. As Whitaker argues, in all of the cases cited by Liberty Mutual in support of its contention that the release was ineffective to bar its action, the insurer gave notice of its subrogation lien to both the tortfeasor and the tortfeasor’s insurer. See, e.g., Daves, supra; Sentry, supra. However, as Whitaker admits, there is no authority holding that Liberty Mutual was required to give notice to Whitaker’s insurance company. In fact, the statute at issue in this case, section 11-9-410, instead explicitly requires that Liberty Mutual, the insurance carrier, be notified of any litigation or settlement. While the cases holding that a release is not effective if there is no notice given to the insurer require that the tortfeasor have knowledge of the subrogation claim, none of these cases require that notice also be given to the tortfeasor’s insurance company.
Finally, the statutory intent of section 11-9-410 is to protect the rights of both the compensation carrier and the employee, as well as to ensure that the employee is not doubly compensated. Wentworth, supra-, Ark. Code Ann. § ll-9-410(b)(5). As stated in Sentry, supra, subrogation limits the chance of double recovery or windfall to the insured, and, when exercised, tends to place the primary liability upon the tortfeasor, where it belongs. Allowing Liberty Mutual to assert its right to a lien against Whitaker, the tortfeasor, as well as its insured, Glover, serves to further the statutory intent of preventing double recovery by the insured by also placing primary responsibility upon Whitaker, who caused the accident by his negligence.
In conclusion, we find no authority to support the trial court’s findings that the release executed by Glover is effective to bar Liberty Mutual’s action against Whitaker or that Liberty Mutual’s failure to give notice of its claim to Southern Farm precludes its suit against Whitaker, and we therefore conclude that summary judgment was inappropriate in this case.
Reversed and remanded.
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Bird, Judge.
On May 19, 2001, Willie Milton Jr. was driving an automobile that left the interstate highway and overturned. He fled the scene on foot, but a passenger who was ejected from the automobile died as a result of the injuries he sustained. The Pulaski County Circuit Court subsequently accepted Milton’s guilty plea to the charge of failing to stop after an accident involving death or personal injury. He was sentenced to serve 120 days in the county jail, to pay fees and court costs, and to pay the victim’s family $25,000 restitution. Milton now appeals the portion of the sentence regarding restitution. We affirm.
At the sentencing hearing the victim’s mother testified that his family loved him, that after the accident she took sleeping pills and was tardy to work, and that her oldest son was unable to focus. She testified about her grief as well as that of her sister, who previously had lost a child and “had to go through this again.”
At the conclusion of the hearing the court pronounced sentence from the bench, including its order that Milton pay $25,000 restitution to the victim’s family. The court stated: “We will monitor the restitution payments. . . . $25,000 over six years’ probation will be $350 per month. This will be paid for restitution. Well, it will be paid on a monthly basis... . . Anything else?” The State responded that it had nothing further. Milton’s attorney informed the court, “I am relatively certain that I will appeal this,” but made no further objection or argument regarding the sentence. A judgment and disposition order reflects the order that was pronounced in open court.
Milton argues for the first time on appeal that the trial court was not justified in ordering him to pay restitution because there is no evidence in the record of actual economic loss by any victim, as is statutorily required. It is true that Ark. Code Ann. § 5-4-205 (a) (2) (A) (Repl. 1997) requires that in ordering restitution, the sentencing authority “shall make a determination of actual economic loss caused to a victim by the crime.” Parties are bound on appeal by the scope and nature of the objections and arguments presented at trial, however, and we will not address arguments that have not been raised at trial. Nix v. State, 54 Ark. App. 302, 304, 925 S.W.2d 802, 803 (1996). Because Milton did not argue to the trial court that there was no evidence of actual economic loss, we will not address the issue on appeal.
Affirmed.
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J. Gladwin, Judge.
In this unemployment compensation case, appellant asks this court to reverse the decision of the Arkansas Board of Review (Board) that, under Ark. Code Ann. § 11-10-509 (Supp. 2001), she should be retroactively disqualified for benefits paid between the academic terms at her part-time place of employment, Webster University. We agree with appellant that the Board’s interpretation of Ark. Code Ann. § 11-10-509 is wrong as a matter of law, and, therefore, we reverse and remand.
Appellant was employed full time as an Internet/Intranet manager for StaffMark. At the time she was laid off from this full-time job, appellant was employed part time as an adjunct instructor for Webster University. Although all the benefits paid to appellant were based on her work and wages from StaffMark, she earned a supplemental income from Webster during the “base period” that the Employment Security Department (Department) uses to compute benefits.
The Department determined that appellant was ineligible for unemployment insurance benefits for the period December 16, 2001, through January 5, 2002, and also for the period March 10, 2002, through March 16, 2002. This determination was based upon a finding that appellant performed services in an instructional capacity for an educational institution, was between terms during the above dates, had performed such services in the first of the terms, and had a reasonable assurance of performing such services in the second of such terms. The Appeal Tribunal and the Board affirmed. The Board reasoned that because there were educational wages in appellant’s base period of her claim, Ark. Code Ann. § 11-10-509 applied so as to disqualify appellant from benefits during the between-terms time period.
Under Ark. Code Ann. § 11-10-201 (a)(1) (Supp. 2001), “base period” means the first four of the last five completed quarters immediately preceding the first day of the benefit year. An insured worker’s weekly benefit amount shall be an amount equal to one-twenty-sixth of his total wages for insured work paid during the one quarter of his base period in which the wages were highest. Ark. Code Ann. § ll~10-502(a) (Supp. 2001).
Arkansas Code Annotated section ll-10-509(a) provides that employees of educational institutions are not eligible for benefits during certain time periods:
With respect to service performed in an instructional, research, or principal administrative capacity for an educational institution, benefits shall not be paid based on services for any week of unemployment commencing during the period between two (2) successive academic years or terms, during a similar period between two (2) regular but not successive terms, or during a period of paid sabbatical leave provided for in the individual’s contract to any individual if the individual performs the services in the first of the academic years or terms and if there is a contract or reasonable assurance that the individual will perform services in any such capacity for any educational institution in the second of the academic years or terms.
The Board noted that there were wages from a noneducational employer, StaffMark, and wages from an educational employer, Webster University, in appellant’s base period. The Board then incorrectly concluded that because there were educational wages in appellant’s base period of her claim, she was ineligible for benefits during between-terms time periods, even though it was undisputed that appellant neither filed a claim for nor was paid benefits based upon her work for an educational institution.
Appellant contends that the Board misapplied. Ark. Code Ann. § ll-10-509(a) to disqualify her from receiving benefits for being laid off from her full-time, noneducational employment simply because she also had limited part-time work as an adjunct instructor. In response to appellant’s arguments on appeal, the Arkansas Employee Security Department filed a motion to dismiss, stating, inter alia, that appellant mistakenly alleged that the Board’s decision would cause her to have to repay benefits; that appellant’s claim was based solely upon noneducational wages; and that there was no overpayment of benefits to appellant.
The Department’s contention that the decision of the Board will not cause appellant to have to repay benefits or have future benefits reduced to accomplish repayment is not supported by the record. The Board determined that there had been an overpayment of benefits. As written, this opinion could be used to compel repayment of those benefits, regardless of statements to the contrary made by the Department in its motion to dismiss. See Ark. Code Ann. § 11-10-532 (Supp. 2001). Therefore, rather than simply dismiss the appeal on the basis of unsupported assurances by the Department, we address the issue of whether the Board misapplied Ark. Code Ann. § ll-10-509(a) given the facts of this case.
The construction of a statute by an administrative agency should not be overturned unless it is clearly wrong, and this court will not substitute its judgment for that of an administrative agency unless the administrative agency’s decision is “arbitrary and capricious.” Ramsey v. Dep’t of Human Servs., 301 Ark. 285, 783 S.W.2d 361 (1990). Administrative actions may be considered arbitrary and capricious where they are not supported by any rational basis, or hinge on a finding of fact based on an erroneous view of the law. Curen v. Arkansas Prof'l Bail Bondsman Lie. Bd., 79 Ark. App. 43, 84 S.W.3d 47 (2002). In Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001), our supreme court stated that a basic rule of statutory construction is to give effect to .the intent of the legislature, and where the language of a statute is plain and unambiguous, legislative intent is determined from the ordinary meaning of the language used.
The language of Ark. Code Ann. § ll-10-509(a) clearly states that with respect to services performed in an instructional capacity for an educational institution, benefits shall not be paid during between-terms time periods. (Emphasis added.) The limitations of this statute apply only when the benefits sought are based upon the claimant’s instructional work for an educational institution and the other requirements of the statute are met. A claimant who seeks benefits based upon her noneducational employment is not precluded from receiving benefits during between-term periods simply because education-related wages appear in her base period.
The Board’s decision in this case to deny benefits pursuant to Ark. Code Ann. § ll-10-509(a) was based on an erroneous view of the law and was therefore arbitrary and capricious. Accordingly, we reverse and remand for award of benefits.
Reversed and remanded for award of benefits.
Pittman and Baker, JJ., agree. | [
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Eakin, J.
Frizzell had recovered a judgment against "Willard, before a Justice of the Peace, upon which he sued •out a writ of garnishment against Hodgins, summoning him individually to appear and answer as required by the Statute. Interrogatories were filed in due time by the plaintiff. The .garnishee failed to. appear and answer; and, upon the twentieth of June, 1878, the third day after the time fixed for answer, judgment by default was rendered against him for the whole debt.
Within ten days thereafter he appeared before the justice, moved to set aside the default, and made affidavit to the •effect that he had been misled by the plaintiff’s attorney, to suffer it. The language of the affidavit is, that the said attorney, “well knowing that your said garnishee was not indebted to said defendant, Willard, told said garnishee that it would not be necessary for him to appear at the time ■specified in the writ; and that he (the said attorney for plaintiff) being satisfied that said garnishee was not indebted to said defendant, would prepare the answer for said garnishee, and send it to him to Greenwood to sign, etc., and thus save him, the said garnishee, of the trouble of appearing at the return day of the writand that, therefore, he failed to appear. ITe swears further, that before having this understanding with the attorney, he went to the office of the justice, and found that interrogatories had not been filed.
The motion to set aside the default was refused, and the garnishee appealed, giving notice to plaintiff of the appeal, on the eigteeuth of July, 1878.
In the Circuit Court the plaintiff moved to dismiss the appeal, because no notice had been given to him of the motion for a new trial; and, amongst other things not insisted upon, that the appellant to the Circuit Court “assigns no meritorious reason for the- granting a new trial in the court below, nor does he assign any reason for his appeal herein, as required by law.”
This motion was refused, and the refusal is one of the grounds of error insisted upon by the plaintiff in the garnishment, who is the appellant here.
The motion made before the justice was not for a new trial or rehearing, under /Sec. 3761 of Gantt’s Digest, which required notice to the opposite party. There never had been any trial. It was, in effect, a motion, under section 3760, to set aside a default, and required no notice until a new day should bo fixed for trial. It did require, however, that a satisfactory excuse should be shown for the default, and a meritorious defense.
The excuse shown was certainly sufficient. The meritorious defense is not set forth in positive and affirmative-terms, but we think it sufficiently implied that the garnishee meant to assert that he owed the defendant in the judgment nothing, and had no effects in his hands. This much he did swear, positively, in the answer, which the court subsequently struck out. The motion to dismiss the appeal was properly refused by the Circuit Judge. A liberal and common sense view of pleadings and entries before .justices, and in other inferior courts, must be taken, or justice will be lost in technicalities, which justices, not learned in the law., cannot be expected to comprehend. The justice ought to- have set aside the default, on what was substantially implied by the affidavit, and the appeal was properly taken.
In the Circuit Court the garnishee filed his answer, denying all indebtedness to the defendant in the judgment, or the control of any of his goods, chattels, effects, etc. This answer, for reasons not very obvious to us, was struck out by the court, as not having been filed in time. The garnishee, however, is not appellant here, and we will not consider this.
He then demurred to the allegations and interrogatories filed by the plaintiff, the same being, in effect, as follows :
1. That the garnishee and Samuel McLoud were indebted to Willard in the sum of $125 ; and
2. That they, at and after the service of the garnishment, had in their hands and possession goods, chattels, etc., belonging to defendant, of the value of $125. The interrogatories, in pursuance of these allegations, and to elicit answers as to their truth, were addressed to the gar-' nishee and McLoud jointly.
The court sustained the demurrer, or objections, to the allegations and interrogatories, and gave plaintiff leave to amend, and defendant to answer them as amended. Plaintiff declined to amend, and the court dismissed the suit.
From this judgment Frizzell appeals.
The allegations and interrogatories should have been framed in accordance with the writ of garnishment. That was against Hodgins individually. If he had been, with " others, jointly and severally indebted to defendant, Willard, such interrogatories would have been amply sufficient elicit a response on account of his several indebtedness. It was not necessary to join McLoud in the interrogatories, who had not been garnished, nor necessary to question Hodgins as to any obligation of McLoud, with him, to pay
Willard money. On the other hand, as to property, effects, ** etc., which they may jointly have had in their hands, for which they were jointly accountable to Willard, and which was under the exclusive control of neither, if any such there were, it was essential that they should have been joined in the garnishment, before interrogatories could be properly filed against either.
It is the most correct practice to require the allegations and interrogatories to follow the advice in the writ, as to what the garnishee will be called upon and expected to answer, and not require him to answer as to the liability of others not garnished, or as to his joint liability with them, unless it be also several. It is very true that the technicality should not be pi’essed to defeat apparent rights, revealed by the whole case, and the court very fairly offered ieaye to plaintiff to amend, which would have let in defendant’s answer again ; and substantial justice would have been done in the end. He refused to amend, and his case was dismissed.
In the cultivation and perfection of good practice in the Circuit Courts, for the dispatch of business and speedy administration of justice, it is important that the judges should have a fair discretion in matters not substantially affecting the rights of litigants ; and it is the duty of attorneys to conform to all fair regulations and reasonable directions. The plaintiff should have amended, and the court had no recourse against refusal but to dismiss the case.
After a successful motion to strike out so meritorious an answer as was put in by the garnishee, we do not think the plaintiff is in position gracefully to complain of undue technicality, in being required to amend his allegations so as to conform to the writ.
Affirm the judgment. | [
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English, C. J.
Anderson Ashley was indicted for bigamy in the Circuit Court of Clark county ; tried on plea of not guilty; there was a verdict of acquittal, and he was discharged by judgment of. the court. During the trial the court ruled .out the evidence offered by the State, and the purpose of this appeal is to obtain the opinion of this court upon that ruling.
The indictment charged that Anderson Ashley, on the-second of December, 1879, in Clark county, intermarried with one Phenie Meeks, having at the time a living wife-, named Mary Ann Ashley.
The State proved that the accused, before he came to Clark county, lived near Winchester, in Franklin county,. Tennessee, and was married to his cousin, Mary Ann Ashley,, in Alabama, on the twenty-seventh of September, 1874, by whom he had a female child.
The State also proved that the accused married Phenie Meeks, in Clark county, on the second of December, 1879.
The State, in order to prove that the first wife was living . . . at the time or the second marriage, offered m evidence a & ’ certified copy of a decree rendered in the Chancery Court,, at Winchester, Franklin county, Tennessee, thirtieth of June, 1880, divorcing Mary Ann Ashley from Anderson Ashley, awarding to her custody of their child, and adjudging the costs of the suit against him.
The decree was excluded bjr the court, on what particular ground does not appear; and the State having no other evi •dence to prove that the first wife was living when the second marriage occurred, the jury were instructed by the court to return a verdict of acquittal.
It is not probable that the Tennessee Chancery Court rendered a decree divorcing and awarding custody of a child to ■a dead woman. The decree in her favor (fixing her status)
-should have been admitted as prima facie evidence that she was living when it was rendered. Holbrook v. State, 34 Ark., 519.
But the accused having been acquitted on a valid indictment, there can be no reversal of the judgment on J n appeal by the State. State v. Hand, 6 Ark., 169; Digest, sec. 2129. | [
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STATEMENT.
Eakin, J.
This is an action under the Statute, by a landlord, before a Justice, for rent payable in kind. The action was brought before the end of the year, for the value «of that portion of the crop which was payable to the landlord. An attachment issued, based upon the affidavit of Patton, the landlord, setting forth his lien on the crop, that .the ¡rent was due, that he ought to recover $98 therefor, •and that ‘ ‘ the defendant has removed a part of the crop from the premises, without his consent.” It was levied «upon a crop of corn in the field. An account for the rent was filled with the affidavit.
Defendant Garrett appeared, and, by written answer, under oath, denied that he was indebted for rent, and, also, "that he had removed any part of the crop from the premises without the consent of plaintiff. He also set up, as a counter-claim, a charge for damages, caused by.plaintiff, in attaching the crop, “and one horse,” and for expenses incurred by himself in recovering the horse, and for the trespass in talcing the horse, and for damage to the crop in preventing its being gathered. The horse, however, and the counter-claim disappear afterwards from the proceedings, except in so far as damages under the Statute may be claimed for improperly suing out the attachment.
. The cause was tried before a Justice upon the two issues together, made bjr the answer, and a verdict was rendered for defendant. Upon appeal to the Circuit Court, the cause was there again submitted on the same issues, with like result. The jury found for defendant, and assessed his damages at $81.66 2-3. Whereupon, the attachment was discharged, and judgment for the amount was rendered against the plaintiff, and his surety in the attachment and the appeal bonds. Plaintiff moved for a new trial, which being refused, he filed a bill of exceptions, and appealed. Pending the suit, as appears from the evidence, the corn attached had been gathered by the constable’s directions, and cribbed ■on the plaintiff’s land.
OPINION.
This cause was tried below, before thepublication oí Holiday Bro’s. v. Cohen, 34 Ark., 707, which was intended to fix the practice under an Act of tenth of November, 1875, providing for the recovery, in the same action, of damages by •defendant, in case of a discharge of an attachment. The Act is somewhat obscure, and the practice before that time was unsettled. We therefore deem it expedient to waive all notice of the practice in this case, as being at variance with that prescribed in the case cited, and to look only at the substantial merits
The first two grounds of the motion for a new trial are, that the verdict is contrary to law, and unsustained by eviThe' evidence showed that the renting was for a third of the crop. The land was to be cultivated in corn, with the exception of two acres which defendant agreed to plant, in tobacco, and with the further exception that the defendant, might sow four acres in oats, paying corn rent for the same as if cultivated in corn, to be estimated by the product of' the contiguous land. The jury seems to have adopted the plan of charging plaintiff with two-thirds the value of the’ corn attached, allowing him the other third for his rent, in place of finding a vei’dict for him for rent, and charging him with the whole crop as damages. Substantial justice would be attained that way, with a further allowance in his favor for the oat land, and the corn used by the tenant (which probably they also intended), if in fact the plaintiff got the corn attached. But there does not seem to be sufficient evidence of that. It was cribbed on plaintiff’s land, but that would naturally be done, for convenience, and to avoid the expense of hauling. It was, from all that appears, and still is, in the custody of the law, and the plaintiff under the evidence, even if the property luid been improperly attached, could only be charged for the detention, and any deterioration in value resulting from the attachment. Upon the discharge of the attachment, the right to possession of the corn reverted to defendant, and the presumption is he got it all back. Perhaps the evidence, though not preponderating that way, might support the value.of defendant’s share, if it had been shown that he lost it entirely, but the evidence does not authorize the mode of adjustment adopted. Besides, the evidence does show beyond question, that defendant had, without the landlord’s consent, taken off a considerable part of the corn from the field to his house, a quarter of a mile away, and consumed it for his private purposes. This was uufair to the landlord, as prejudicial to his rights to a fair division. It was within the mischief which the Statute intended to avert, in making it a ground of of attachment, if the tenant should remove the crop, or any portion of it, from the premises, without the landlord’s consent. To take it from the field where it grows, to another place rented from the same landlord, and there consume it, is within the spirit and equity of the Statute, as well as fairly within its letter. The crop should be kept on the premises until fhe rents are adjusted. If the necessities of the tenant should require him to take any considerable portion, before division, it should be by consent of the landlord, who would thus be enabled to protect his interests, by keeping an estimate of the amount consumed. A removal of part of the crop even for honest purposes, without the landlord’s consent, will support an attachment. See Randolph v. McCain, 34 Ark., 696.
The verdict of the jury in finding for defendant on the second issue, and assessing damages against plaintiff, was contrary to the evidence. The first two grounds of the motion were well taken.
The remaining grounds concern instructions. Those given against plaintiff’s objections, after fairly stating to the jury the two issues before them, proceed to advise them, that if they find for the defendant, on the second, they must assess his damages for the false attachment, and- should arrive at the amount by ascertaining the value of the corn that belonged to the defendant at the time it was taken, and a reasonable attorney’s fee for defending the suit.
II. That if the defendant rented the land for one-third of the crop, plaintiff could only recover a third of that actually produced, without regard to the manner of cultivation.
III. That if they should find against the grounds of the attachment, then the plaintiff should not recover the value of his third in money, until after the time had passed for the delivery of one-third of the crop, and failure to do so.
The court refused, on plaintiff’s motion, to instruct the jury as follows:
“If you find the defendant had removed'the crop, or any portion thereof, from the premises, without the consent of plaintiff, you should find for plaintiff in the attachment issue.”
It is obvious, for reasons already given, that the first instruction on the part of defendant, as to the measure of regai'ding the crop, was'erroneous. So much of it as regards attorney’s fees will be taken up hereafter. The court also erred in refusing the instruction asked by plaintiff. Randolph v. McCain (supra).
The second instruction for defendant is unobjectionable. It would give rise to interminable litigation, if landlords, leasing on shares, could claim all that would have inured to their benefit, if the tenant had exercised ordinary industry, and judgment in the cultivation of the crops. The amicable adjustments of rents would be almost exceptional. The landlord chooses his tenant, and must judge of his skill and fidelity in husbandry, or if he desires assurance on these points, should make special stipulations, or have money rent secured.
The third instruction given for defendant seems obscure. The time had already passed for the payment of rent. So far as it might impress the jury with the idea, that the could recover no money in this action, as the value of his portion of the crop, because he had begun it by false attachment, before default on the part of defendant to ■deliver a portion of the crop, it dbes not present a safe rule' of practice. Where the landlord has a lien, our Statute .authorizes a suit by attachment, whether the rent be due or not, in two cases: First, when the tenant is about to Temove the crop, without paying the rent, and second, when he has done so, without the landlord’s consent. It would seem to result that, these conditions failing, such a ■suit would be without authority,' and should be dismissed. {See Gantt’s Digest, Sec. 4101.) This result, however, is precluded by Section 4104, which provides for staying the trial until the rent be due, and for the dissolution of the attachment in the manner then prescribed by law, and for the progress of the cause, as an ordinary suit. This Act was passed in 1860. It was not then allowable to conlrowert the truth of the sworn grounds of attachment, and it ■could not be shown, therefore, that the case had not arisen for the application of the remedy. It has since been allowed, and it is a question, not without difficulty, whether that being shown, the suit should not be dismissed, as unauthorized, precipitate and vexatious.
The Act was in force, however, when, by the Code, another mode was provided for dissolving attachments; that is, by questioning the truth of the grounds. In these cases the law provides that suits shall nevertheless proceed upon their merits. The Code is general, with no reference to suits by landlords. No provision is made for their dismissal in cases of premature suits, where the grounds of attachment have been found to be false. By the Code, also, as amended in 1871, (See Gantt’s Digest, secs. 437 and •438,) all creditors were allowed, in certain contingencies, to bring suits with an attachment before the debts become •due, and there is nowhere any express provision for the dismissal of suits, in case the grounds of attachment should .not be sustained. The law contemplates the dissolution of the attachment, with a liability of the plaintiff and his sureties, for damages; and that the suit upon the debt be retained to be tried upon its merits.
Upon a review of our legislation, we think the landlord, in case the grounds of his attachment be found untrue, is subjected to damages, but has the right, however, even in a case of a premature suit, to recover that to which he may be justly entitled, including money value of rents not paid in kind.
With regard to the attorneys’ fee, it has been held that ‘in cases like this, there is no mode of putting in issue fra,ud, imposition, malice; or any other tortuous or oppressive design on the part of plaintiff. The issue is only upon the dry ground of the truth or falsity of the grounds stated, and there is no room for damages of a punitory, vindictive, or exemplary nature. Only such can be recovered as are actual, and the natural and direct consequences of the attachment. Do attorneys’ fees, incurred in the defense of the suit, or in procuring a dissolution of the attachment, come fairly within the scope of proper and direct, actual damages ?
In England, attorneys’ fees are taxed as costs in the suit, and allowable in other actions as damages, wherever full costs of a suit may be. In America, generally, the compensation of attorneys is matter of contract between attorney and client, and in no sense costs of the suit. They are proper expenses, and of course allowable in all cases where punitory or exemplary damages may come in. But as to whether they are necessary and direct damages in ordinary cases; the American authorities are in conflict. The difference of opinion has arisen principally in suits by vendees, under. covenants of warranty, seeking to recover damages for eviction by suit, claiming attornej^s’ fees as part of the expenses incurred from breach of warranty. Some of the courts have hold them to be recoverable, and some not.
(See the matter discussed, and the cases cited in Turner v. Miller, 42 Tex., 418; S. C. 19th, Am. Rept’s, p. 47.) We acknowledge the difficulty of seizing upon any clear principle upon which the mind can unhesitatingly rest, to determine the question either way.
We think, however, that the weight of authority and the-better reason is in favor of discarding such claims, as the proper, natural and direct consequences of a suit improperly prosecuted, but without malice or on improper motive. Laws which give remedial rights should not too greatly imperil those who honestly seek them. The occasional necessity for the payment of attorneys’ fees may be a misfortune, but it is one of the risks which citizens assume as the price of a government by law, instead of one. by violence and caprice, or none at all; and as in case of other burdens, it is better that each should assume the risk for himself than to cast it upon those who honestly, though mistakingly, appeal to the courts for a vindication of their supposed rights. There is also an inconvenience, with danger of injustice, in applying a different rule to the case of a false attachment. The same attorney usually defends the suit upon its merits, and the suit may be properly brought. How much of the attorney’s compensation results from opposing the attachment, as distinct from the suit, is not easily apportionable, and that portion is the utmost to which the defendant can be entitled. He certainly cannot throw upon the plaintiff the whole cost of defending a meritorious suit, because the plaintiff had made a mistake in seeking an ancillary remedy. In harmony with these views, this court has heretofore held in the case of Oliphint v. Mansfield, 36 Ark., 191, that counsel fees are not allowable on the dissolution of an injunction.
We do not think, therefore, that the attorney’s fees of defendant should, in the same action under the statutory proceeding, be acknowledged as damages ; and that the-court erred in its instructions. .
Because of the instructions erroneously given and refused,, and because the verdict was not sustained by evidence, the court erred in overruling the motion for a new trial.
Reversed and remanded for further proceedings, with the usual order. | [
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English, C. J.
On the twenty-fourth of January, 1881,. Thomas McGrinnis was charged and convicted before a Justice of the Peace of Nevada county, “ with the offense of going from place to place peddling and selling goods, wares and merchandize, other than the growth, produce, or manufacture of this State, in said county,” etc. ; fined $200, and. appealed to the Circuit Court.
In the Circuit Court a demurrer was interposed to the charge, which the court sustained, discharged defendant,, and the State appealed.
The Statute provides that:
“ Whoever shall deal in selling of goods, wares or merchandize, other than the growth, produce or manufacture of this State, by going from place to place, either by land or water, to sell the same, is declared to be a peddler.”' Gantt’s Dig., Sec. 4376, etc.
Other sections require peddlers to obtain license, and prescribe the penalty for selling without, etc. lb., Secs.. 4577, 4385, 5050-1, 1494; Millers Dig., pp. 4, 5.
There is no subsequent act defining a peddler, and no act-requiring peddlers of goods, wares or merchandize, which, are the growth, produce or manufacture of this State, to obtain license.
The above act clearly discriminates against the products and manufacture of other States, and in favor of the products and manufactures of this State. In Welton v. State, 1 Otto, 275, just such an act of Missouri, was held by the Supreme Court of the United States to be in conflict with the commerce clause of the Constitution of the United States, and therefore null and void. See also State v. Kate Marsh, ante.
If the Legislature deems it expedient to require peddlers 'to obtain license, and to punish them for peddling without license, no discrimination must be made against goods, etc., •of the growth, produce or manufacture of other States, etc.
Affirmed. | [
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Harrison, J.
The indictment was bad. It contained no description of the money the defendant was alleged to have received from Montgomery by his false personation ■of Alnutt. It did not even state whether it Avas coin or paper. It should have been described with the same particularity and certainty as in an indictment for larceny. Smith v. The State 33 Ind., 159.
“To describe thesubject of thelarceny,” says Mr. Bishop, ■“ as so many dollars in money, Avithout further particularization, is by all deemed ill.” 2 Bish. Crim. Proceed., sec. 703, and sec. 273; Barton v. State, 29 Ark.. 68.
The demurrer to the indictment ought to have been sustained, and the judgment should have been arrested.
The judgment is therefore reversed, and the cause is. remanded with instructions to arrest the judgment, and to> hold the appellant to answer a new indictment, if found. | [
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STATEMENT.
Eakin, J.
Ford brought an action of replevin against Hanf, before a Justice of the Peace, to recover a horse, a ■mule, and a two-horse wagon and gear. The value of each was set forth in his affidavit, which was made to answer the purpose of a complaint. The property was bonded by defendant and retained. Upon trial, judgment was ren•dered against the plaintiff, who appealed to the Circuit Court. He was there, against the objection of the defendant, ¡allowed to amend his affidavit so as to increase the amount of damages claimed. Upon a trial in the Circuit Court the jury found for the plaintiff,.fixing the value of the property, in solido, at $250, and assessing damages at $100. Whereupon, the court rendered judgment that he recover of the •defendant, the horse, mule, and wagon, and harness, or their value — $250—and $100 damages, and costs.
The defendant moved for a new trial, upon the grounds that the jury had found the value of the property above 'the value alleged in the plaintiff’s affidavit, and that the ver•dict was without evidence to support it, and contrary to the evidence and instructions of the court. Whereupon the plaintiff offered to remit the excess of the value found •over that set forth in the affidavit. The motion for a new trial was then considered and overruled, but- the -court set aside and held for naught the judgment which had been entered, and declared another in its place, •adopting the remittitur, and considering “that the plain-tiff have and recover of the defendant $205, for the value •of the property and the damages, besides all the costs ■of this suit, and that he have execution therefor.” The -defendant appealed.
OPINION.
There was no error in permitting the amendment as to the amount of damages. (Nee Gantt's Digest, sec. 4616). It did not substantially change the nature of the claim o^, defense, and was certainly “in furtherance of justice." The original claim for damages was made in a proceeding before a justice, in which the plaintiff, but for the retaining bond, might have had immediate re-delivery, and it might be reasonably supposed, sufficient to cover any damages then incurred, or even those which might be sustained in the usual time required for proceedings before a justice. The defendant, however, continued to retain the plaintiff’s property, by means of his bond, not only during the progress of the suit before the justice, but during its pendency on the appeal. During all this time the damages were increasing, and there would have been a failure of justice, if the plaintiff had not been allowed so to amend as to reoover the whole damage sustained.
The verdict of the jury was erroneous, and should not have been received by the court, if any objection had been ma<^e thereto at the time of its rendition; or the court 011 its own motion, have declined to receive it, and have sent the jury back, with instructions to find separately the value of each, separate and distinct piece of property claimed in-the affidavit. It has been so held by this court in Noland v. Leech, Ex’r., 10 Ark., 504, under Sec. 39, Chap. 136, of English's Digest of the Statutes, from which the present provisions of the Code do not materially differ. The defendant who retains several distinct articles involved in one replevin suit, has the right to return any of them, or its value, and is entitled to have its value fixed for this purpose by the jury, and an alternative judgment accordingly. If this is not done, before the jury are dis •charged, he may move for a venire de novo. But, except by new trial, there is no other mode of correcting such an error. {See case cited).
The case above cited came up on writ of error, and this court; without any motion shown in the court below to correct the error, of itself reversed the judgment. The case settles the law as to the nature of the verdict, and the mode of its correction, and would be a precedent as to the practice, for ordering the new trial on motion first made here, save for a subsequent enactment of the Code (Gantt’s Digest, sec. 1100), which provides that “a judgment or final order shall not be reversed for an error, which can be corrected on motion in the inferior courts', until such motion has been made there and overruled.” This is decisive. A motion for a new trial was not only permissible in the court below, but proper. Only by a new trial can any relief be afforded. No motion on that ground was made, and this case comes not only within the letter, but the spirit and intention of the Code provision. It was passed to avoid that delay and expense which result from the practice of allowing errors, easily corrected on the spot, to be passed sub silentio by those affected, in the expectation that, other points failing, they may have them corrected at some future day, through an appeal or writ of error. The verdict is .such an one as a judgment in the alternative might be rendered upon, and was ; and if that judgment had been allowed to stand, corrected only as to the true excess, in accordance with the remittitur, it would not have been reversed on this appeal.
As to the verdict being without evidence, we may say that-there was enough before the jury to justify them, in accordance with their ordinary knowledge of -human affairs, in finding that the property had not been properly obtained from the plaintiff, and that it and the damages for detention were of the values found.
It remains to consider the final judgment, and only onestan(Jinp-below. It is not in the alternative, and was-not authorized by any Statute, nor by the verdict. If was-a simple money judgment, with award of execution. It should have been for the delivery of the property, or for the value thereof, etc. Gantt’s Digest, sec. 4718; Jetton & Farris v. Smead, 29 Ark., 383; Rowark v. Lee, 14 Ark., 425.
This was an error of law, committed by the court itself,, and appearing from the record. To correct it no motion L L ° a new trial was necessary. Such a motion would not have been appropriate. It is not required of suitors to-importune the courts to reconsider their judgments as to law» rendered upon the record, save as to misprisions, and some immaterial irregularities. See Badgett v. Jordan, 32 Ark., 154.
The first ground of motion for a new trial was cured by the remittitur, and the others were not well taken. The-court committed no error in overruling it. The verdict,, modified by the remittitur, must stand, as no objection was-made to it in proper time, upon tenable grounds.
For error in the judgment, it must be reversed, at cost of' appellee.
Remand the cause, with directions to the court below to render an alternative judgment, in accordance with the verdict as diminished by the remittitur, to bear interest from the date of the first judgment entered. | [
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OPINION.
Harrison, J.
The court very properly refused to give the jury the second instruction asked by the defendant. Instructions should not be based on isolated facts, or only part of the evidence, but should be so framed that all parts of the evidence should be considered and weighed by the jury. Proff. on Trial by Jury, sec. 319; Thomp. on Charging the Jury, sec. 71; Bush v. The State, ante 215; Winter v. Bandel et al., 30 Ark., 383. It did not necessarily follow, because the defendant had cattle of like description to the steers owned by Speaks, and sold them by description, as they run at large, that the evidence which tended to prove, that knowing they were not his own, he himself drove and delivered one of Speaks’, to the purchaser, at his slaughter pen, and that by claiming it as his own and as one of those he had sold, induced the purchaser, or his servants, to drive the other there, could not have been true.
A new trial will not be granted on the ground of newly discovered evidence, where it appears that the evidence was known to the party before the trial, and no good reason is shown for not procuring it. Holeman v. The State, 13 Ark., 105; Bourland v. Skimne, 11 Ark., 671: Fikes v. Bentley, Hemp. 61.
The facts which the defendant alleged he would be able to prove, were, if true, within his own knowledge, and he could as easily before as after the trial have found the witnesses.
There was no want of evidence to sustain the verdict.
The judgment is affirmed.
Eakin, J.
Conceding that no technical error exists in this case, I am dissatisfied with the proceedings and the result, and would prefer, for safety and in favor of liberty, to direct a new trial. The Court on several occasions has done this, where there has been no specific error upon any one-point, sufficient of itself to justify reversal.
It is evident that the main defense rested upon this point ; that the defendant was sick and infirm, and sold the cattle in the woods by description; that he had cattle of like description ; and that if he meant to sell his own, and other cattle of like description had been taken from the range, in place of them, by mistake, or by the vendee or his servants, without defendant’s special directions, the case would not be one of larceny. There was evidence upon that point before the jury, and they should have been instructed with regard to it in .-some way, to have enabled them to act intelligently upon that particular point. The second instruction was so intended. It was not framed however, so as to be strictly •correct. The Court refused it absolutely, without proposing to modify it, or to give any upon that point in lieu of it. I cannot say that the judge was obliged to do so, but I think it would have been better. As it was, the jury went out wholly uninstructed on the point.
The evidence is brought up by the bill of exceptions in -•a very confused condition, and perhaps is not as clear to us as it was to the jury. Still it is apparent that a good deal of it was hearsay and incompetent— admitted without objection. ’That was not error, but it made it more important that the jury should be well instructed. The evidence, as it appears in'the transcript, does not make on my mind, that clear and undoubting assurance of guilt, which it is important that a jury should have, although I would not make this an objection to a verdict on full and clear instructions; yet I cannot resist the apprehension in this case, that it might have been different if the second instruction, with a slight modification, had been given. | [
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OPINION.
Harrison, J.
When a homestead right has once ' ° o-attached, a continuous actual occupation is not indispensable for its preservation. It is well settled by the authorix •* that a removal from the homestead for a temporary purpose, or with the attention of returning and again occupying it, is not such an abandonment as will forfeit the homestead right.
In the case of Wiggins v. Chance, 54 Ill., 175, where the owner rented out the premises for three years, and removed with his family from them, in the fall of the year, to a town in the same county, for the purpose of earning money to-pay his debts, but with the intention of returning, and did return the following spring, and resumed their occupancy with his family, it was held there was no abandonment of the homestead.
In the case of Fyffe v. Beers, 18 Iowa, 4, the owner had removed from the premises and been absent more -than four-years, and had, in that time, been engaged elsewhere in the business of inn keeping, but as she always intended to-return and again occupy them, as her homestead, it was-held that her homestead right still subsisted.
In that case the court said * * * * * “ If the removal is temporary and the animus revertendi is established, and third persons have not been led to believe it was-not a homestead by the owner, thus out of possession, and to act upon this belief by purchasing or specifically altering; their condition, upon the faith that it was not exempt as a. homestead, the law would treat the homestead i’ight as still subsisting.”
And, in the case of McMillan v. Warner, 38 Tex., 410, the Court said: “The question of abandonment is almost exelusivel}^ a question of intent, since no legal abandonment can occur without a fixed intent to renounce and forsake, or to leave never to return ; and to abandon a homestead, a party must forsake and leave it with the intent never to return to it again as a homestead.” Tumlinson v. Swinney, 22 Ark., 400; Stewart v. Brand, 23 Iowa, 477; Moss v. Warner, 10 Cal., 296: Potts v. Davenport, 79 Ill , 455; Walters v. The People, 18 Ill., 194; Shepherd v, Cassiday, 20 Tex., 24; Gouhenant v. Cockrell, Ib., 96; Hixon v. George, 18 Kan., 253; Thomp. on Homesteads, sees. 265, 266.
The complaint in this case alleged that when the plaintiff leased and removed from his homestead, it was with the intention of returning to and resuming the occupancy of it upon the termination of the lease, and had always so intended ; the truth of which allegation was admitted by the demurrer to the complaint.
And it was in like manner'admitted that he had, after the execution was sued out, explicitly selected and ° J designated his homestead, by filing a schedule of the property in question as such, with the clerk, and he was not required again to do so upon the suing out of the alias execution.
There can be no reason for a second selection or schedule in the same case, where there has been no change of circumstances.
The demurrer to the complaint should have been overruled. The deci-ee is therefore reversed, and the cause remanded for further proceedings. | [
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English, C. J.
The indictment in this case is like that in State v. Keith, ante 96, and in Johnsons. State, 36 Ark. 242.
No motion in arrest of judgment was filed, but the indictment being bad in substance, no judgment should have been •rendered thereon against appellants.
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Eakin, J.
Appellee, Bond, presented to the County Court a claim for fees for services as Clerk of the Circuit ■Court, rendered to the State, in case of an indictment for ■misdemeanor, of which the defendant had been acquitted. 'The bill for fees had been approved by the Circuit Court, .and certified by the Judge. No question is made of the .amount.
The County Court refused to allow the same, upon the ground that the county was not liable. Upon appeal to the Circuit Court, the county was held liable and she appealed.
By the Revised Statutes (See Gantt’s Digest, sec. 2015) it was provided that: “In all criminal or penal cases, if the ■defendant shall be acquitted, except when the prosecutor .•shall be adjudged to pay the cost, or if convicted will not have property to pay the costs, the same shall be paid by the county.”
Sec 2831, lb., compiled from the Act of July 23d, 1868, .and sec. 286 of the Criminal Code, as amended in 1871, provided that: “Fees allowed in criminal cases shall be paid by the defendant, but if sufficient property belonging to the ■defendant can not be found for the purpose, they shall be . paid by the county where the conviction is had.” This is but a modification of what had been provided in case óf ■conviction by the Revised Statutes ■ (Gantt’s Digest, sec. 2016.)
Section 5 of the Fee Bill of 1874 and 1875 (see Pamphlet, Acts, p. 169) 'provides that: “Fees allowed in criminal cases ■shall be paid by the defendant, but if sufficient property belonging to the deféndant can not be found for that purpose, they shall be paid by the county where the conviction is had; except in cases of misdemeanor, when the county shall not be liable.”
The two sections last quoted have no application to cases of acquittal, and leave the law as to them as before. It is good policy to encourage the prosecution of offences, when the necessity and propriety of the indictments is vindicated by conviction. In such cases grand juries should not bo deterred by fears of crippling the county in her finances, and clerks may not unreasonably be required to take the risk for the public good. It is equally good policy perhaps, to discourage grand juries from frivolous or ungrounded prosecutions, often hastily made, by imposing the expenses of acquittals upon their counties.
We find no error in the judgment. As the law stands, the county is liable for costs in all cases of acquittals on indictments.
Affirmed. | [
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Harrison, J.
There was no evidence tending to prove that the train was not stopped in a reasonable time after the horses ran upon the track, or that the engineer wilfully ran the horse down, as was assumed in the fifth instruction given for the plaintiff.
The great public interests subserved by railroads require and demand dispatch in their business, and that trains be run on time, and prompt and punctual connections made; and to stop or delay a train unnecessarily, would be to fail in the company’s duty to the public.
It cannot for a moment be supposed that a train- should always be stopped, or its speed slackened, so soon as stock are discovered to be upon the track.
Ordinary prudence and caution require the engineer to promptly endeavor, by blowing the whistle, to drive them •off, but do not require that the train should be stopped, or its speed slackened, where he may reasonably believe that they will leave , the track in time, and there is no cause or reason to suppose there is any risk or danger. 1 Thomp. on Neg., 505, 507; Hot Springs Railroad Company v. Newman, 36 Ark., 607; Cen. Ohio R. R. Co v. Lawrence, 13 Ohio St., 66; Chicago & Miss. R. R. Co. v. Patchin, 16 Ill., 198; T. W. & W. Ry. Co. v. Barlow, 71 Ill., 610; Brother v. Railroad Co., 5 Rich., 55.
Had such facts been shown as that the track, between where the horses got on it’ and the culvert, runs on an embankment, or through a cut, from which it might have appeared they could not safely or easily, or would not likely have left the track, the evidence in connection therewith would have tended to prove negligence in the engineer; but alone and without such proof there was nothing to show that the conduct of the engineer was not consistent with the exercise of due and proper care.
Though abstract, the instruction was calculated to mislead the jury, by leading them to infer that the evidence tended to establish the facts it hypothetically stated, and should not have given.
It was, as stated in the sixth instruction, to sustain the action, not necessary to prove that the engine or cars actually struck the horse ; but this instruction, for the same reason as the other, was also abstract and misleading.
The verdict was, we think, not only without evidence to warrant it, but clearly and manifestly against the evidence.
The judgment is reversed, and the cause remanded. | [
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English, C. J.
On the ninth of May, 1879, Warren Collins, administrator of Wilson W. Collins, presented to the Circuit Court of Eranklin county a petition for mandamus, alleging, in substance:
That at an adjourned session of the October term, 1872, of the County Court of said county, Wilson W. Collins was-allowed a claim against the county for $3,164.19, with interest at ten per cent, from date of allowance, for balance due to him for furnishing materials and erecting a court-house. That to pay for the court-house, there had theretofore been, from time to time, levied and collected taxes, to create what was known as “the court-house or public building fund.” That in accordance with the order of allowance, the clerk issued a warrant upon the County-Treasurer, payable out of said fund, for the sum allowed.
That soon after the date of the warrant, all of said fund then levied or collected was appropriated by the County Court to various purposes, and no part of it paid on the- warrant, and that no further levy of taxes had ever been made ’to supply the deficiency in the building fund caused by the appropriation thereof to purposes other than that for which it was originally created ; and the County Court had refused ’to make any appropriation or levy any tax to pay said warrant.
That at the October term, 1878, of the County Court, before any levy or appropriation had been made for any other purpose, petitioner applied to the court to levy and ■appropriate a sum sufficient to pay said warrant, which was refused.
Prayer for mandamus to compel Alford E. Cope, presiding judge, and the justices of the peace, composing the County Court, for the levy and appropriation of taxes, to. levy and appropriate at the next annual term, a sum sufficient to pay said warrant.
An alternative writ was awarded on the petition, to which a response was made at the November term, 1879, which was held insufficient, and a peremptory mandamus ordered to compel a levy and appropriation sufficient to pay the warrant and interest, to be made by the presiding judge and justices of the County Court at the October term, 1880.
Defendants appealed from the judgment awarding the mandamus.
I. The response contained four paragraphs, the first in substance as follows:
That the relator filed a motion in the County Court at October term, 1878, asking the court to levy and appropriate a sufficient amount upon the taxable property of the county to pay bis said claim, which motion was by said court overruled for good and sufficient cause then and there appearing. And the court did at said term, levy a tax of five mills on the dollar on the taxable property of the county for the payment of county indebtedness contracted and accruing prior to the adoption of the Constitution of 1874. That-the decision of the court overruling said motion, and the-order making said levy of five mills to pay the indebtedness-aforesaid, remain in full force, &c.
That at the October term, 1879, said County Court levied five mills on the taxable property of the county, and? appropriated the same to the payment of the debts of the county existing prior to the adoption of the present Constitution, and also the further sum of five mills, and appropriated the same for all purposes of said county other-than the payment of the debts aforesaid.
It appears from this paragraph that the County Court did refuse, at the October term, 1878, to make a special levy and appropriation to pay the warrant held by the-relator, but did levy five mills to pay debts generally existing at the time of the adoption of the present Constitution.
The relator sought by the petition to compel, by mandamus, such special levy and appropriation to be made at the October term, 1879, but that term had transpired when the response was made. The first paragraph of the response ■ shows, however, that at that term the court had levied and appropriated five mills to pay debts existing at the adoption of the Constitution, bul it is not shown that any special' levy and appropriation were made to pay the warrant held by the relator; and the court awarded the peremtory mandamus to compel such levy and appropriation to be made at the October term, 1880.
When the County Court levied a tax of five mills to pay-indebtedness existing at the time of the ratification of the Constitution, it exhausted its levying power for that purpose-under the Constitution. Constitution of 1874, Art. 16, Sec. 9; Graham v. Parham 32 Ark. 685; Brodie et al. v. McCabe, Collector, 33 Ib., 696.
The warrant held by the relator was issued to his intestate- before the adoption of the present Constitution, and why the relator insisted on a special levy and appropriation to pay it, does not appear from the relation.
It is not alleged that Wilson W. Collins furnished materials and built the court-house under a contract made under some statute which authorized a special levy of taxes for its payment, and which statute entered into and became part of the contract, and placed its obligation'under the protection of the Constitution of the United States, and that the warrant in question was issued upon such contract. The court below must have regarded the warrant as on the footing of the general indebtedness of the county, existing at the adoption of the Constitution, because in the order for the peremptory mandamus directing a special levy and appropriation to pay the warrant, it was provided that the tax levied for that purpose might be paid in county warrants or scrip issued before the adoption of the Constitution, or in State scrip or Auditor’s warrants issued before that time, or in United States currency. See English v. Oliver, Collector, 28 Ark., 317; City of Helena v. Turner et al., 36 Ark., 577.
II. The second paragraph of the response stated, in substance, that it appeared from the certified copy of the Countv Court record, made Exhibit A to the petition, that said warrant was issued in alleged payment of the balance due Wilson W. Collins on his contract for building the court-house for said county, but respondents alleged the truth to be, that there was in ■ fact no amount or balance vdiatever, then remaining due and unpaid to him on said contract. That on the 16th of August, 1869, said Wilson W. Collins entered into a written contract with W. J. Montague, then commissioner of public buildings for said county, whereby he agreed and bound himself to erect and build a court-house for said county for the consideration of :$9,700,00, and respondents aver that said sum, long prior to the order of allowance under which said order was issued, had beer, fully paid .off and discharged.
This paragraph was a collateral attack upon the order of allowance, which was in the nature‘of a judgment, and falls within the ruling of this court in State, use; etc., v. Hinkle, ante 532.
III. The third paragraph alleged, in substance, that before the making of said contract, said Wilson W. Collins ° was treasurer of said county, and at the time the allowance was made and the warrant issued, there was in'his hands, as such treasurer, the sum of $14,000, belonging to the .public building fund of said county, which had never been -accounted for by him, and yet remained unaccounted for. That in his capacity as treasurer, he retained out of said sum the amount of said warrant and accrued interest, and afterwards held the warrant, in his capacity as treasurer, as a voucher for the payment to himself in his individual capacity.
This, if true, was a good defense. The object of the relator in applying for the.mandamus was to compel a levy of taxes, and an appropriation to pay the warrant, and if his intestate had ^in fact obtained payment, in the" mode •stated- in the paragraph, the mandamus should not have been awarded.
It is submitted by counsel for the relator that the respondents were estopped from setting up this defense by "the record entry of the order of allowance, etc., a transcript of which was made (Exhibit “A”) to the petition for mandamus.
It appears from the Exhibit A that at an adjourned term •of the County Court, held on the second Monday of November, 1872, the following order,.in substance, was made:
“In the matter of the public buildings of Franklin county and treasurer’s commissions:
“Now, on this day, comes Wilson W. Collins, contractor for the erection of a court-house in, and treasurer of, said county, together with Theodore Potts, commissioner of public buildings, etc., and state to the court that Collins has completed said building as specified in the original contract, etc., and asked the court to allow said Collins $3,870, as balance due him for building and completing said courthouse, and for commissions as treasurer, etc., on moneys belonging to the public building fund, etc., together with the sum of $499.49, as interest on the amount here claimed as due for building said court-house, and to discharge said Collins from said original contract. Whereupon, upon an examination by the court, had of the subject matter in this cause, it is found that said Collins has in every way fully and completely erected and finished said court-house, according to the specifications and articles of said contract; that the sum of $3,870.19 is actually due said Wilson W. Collins for building said house, and for commissions as aforesaid. Therefore, it is by the court here considered, adjudged and ordered that said Wilson W. Collins be allowed the sum of $3,870.19, out of any public building-fund in the county treasury not otherwise appropriated ,- and further, in consideration of there being now, a't this date, the sum of $1,006 in the county treasury of said fund, it is ordered that the same be paid said Collins, and deducted from said allowance, and the clei'k of this court to draw a warrant upon the county treasurer in favor of said Collins for the remainder of said allowance, out of said public building fund, and that said amount bear interest from this,. November 16, 1872, until fully paid, at the rate of ten per cent, per annum, and that said Collins be and he is hereby discharged fully and completely from’ said contracts, as asked for.”
There is a transcript of a further order of the court embraced in Exhibit A, without date, as follows :
“ W. W. Collins ) v. £ Claim, f 3,164.19. “Franklin County. )
“Ordered that an order heretofore made, to-wit, on the fifteenth of November, allowing W. W. Collins the sum of $2,864.19, be amended so as to allow him the sum of $300 additional, as interest upon said amount from April, 1871, to the present, and that the clerk issue a warrant upon the public building fund of said county for the entire sum of $3,164.19, drawing interest at the rate of ten per cent, from date.” •
This warrant, which was made Exhibit B to the petition; and dated sixteenth November, 1872, was for the sum named in the last order.
No doubt the court, in considering the sufficiency of the answer, looked at Exhibit A to the petition, which was matter of evidence only, and by treating the third paragraph as insufficient, as if upon demurrer, precluded respondents, if it was in their power to do so, from offering evidence to prove that the warrant had in fact been paid in the manner stated in that paragraph.
The death of Wilson W. Collins, and the grant of letters, of administration upon his estate to the relator, were not. alleged in the petition, as they should have been, to show his title. Whether Wilson W. Collins ever made any final settlement as County Treasurer, or whether the relator had made any for him, as his administrator, and if so, whether his accounts were balanced, does not appear.
The second entries, embraced in Exhibit A to the petition, were evidence of an adjudication by the County Court that Wilson W. Collins had completed the courthouse, according to his contracts ; that a certain sum of money was due to him, as unpaid balance, oh the contracts ; that he then had in his hands, as County Treasurer, $1,006 of the public building fund; and this amount was appropriated upon his claim, as contractor, and a warrant ordered to be issued to him for the balance — payable out of that fund. This may be treated as a final adjudication and settlement with him, as contractor; but there is nothing on the face of the record entries to show that it was intended to be, or, in fact, was, a final and conclusive settlement and adjudication of his accounts as County Treasurer, generally, or as official custodian of the public building funds. •
The orders and entries were made at an adjourned term of the County Court, in November, 1872, which was not the time prescribed by law for him to make his annual settlement as Treasurer; nor do the entries show that he had been ordered by the court to make a settlement at that time ( Gantt’s Eig., Sec. 1034), or that he. had filed any account — general or special — for the court to adjudicate upon, and render a judgment that might be treated as an estoppel.
If, therefore, he had in his hands, at the time the warrant was issued, or afterwards, while he continued to be Treasurer, sufficient funds, belonging to the public building fund, to pay the warrant, and did so appropriate the funds, and afterwards held the warrant as a_voucher against the funds so used, there was nothing hi the record entries, embraced in Exhibit A, to estop respondents from proving such payment of the warrant, under the allegations of the third paragraph of their answer ; and the paragraph should have stood for hearing, on evidence, instead of being held insuf ■ficent, as if on demurrer. Burke v. Coolidge et al., Ex’rs, 35 Ark., 180.
IV. In the fourth paragraph of the response it was ■alleged, in substance, that, at the time of the. issuance of the warrant, there was in the possession and custody of Wilson W. Collins, as such Treasurer, the sum of $11,000, belonging to the school fund of said county, in addition to the ■aforesaid $14,000, belonging to the public building; and "that said sums of money, and said warrant, and other •claims, and other allowances, held by said Collins, were matters of mutual account between said county and said •Collins, as Treasurer; and said account remained unsettled ■and unadjusted, and that said warrant ought not to be paid, unless, upon a final adjudication and settlement of the accounts of said Collins, as Treasurer, the same should appear to be due.
This paragraph was in the nature of a plea, of set-off, and proposed to open too wide a field for inquiry, by the Circuit Court, on application for mandamus, into matters within the peculiar original jurisdiction of the County Court.
V. The fifth paragraph alleged, in substance, “that the - term, of 187 — , of the County Court, it ^ •decreed and adjudged, by said court, to be expedient to in the then outstanding county warrants of said county, in order to cancel and re-issue the same ; and the said County •Court then and there made an order for that purpose, fixing the time for the presentation of such warrants three months from the date of said order. That the clerk of said court ■did furnish the sheriff of said county with a copy of said order, within ten days after the adjournment of said court; whereupon, the sheriff proceeded to notify, and did notify “the holders of said county warrants to present the same to said County Court at the time and place fixed by said order, .as aforesaid, for cancellation and re-issuance of the same, by putting up, at the court house door, and at the election precincts in each township, in said county, thirty days before the time appointed by the order aforesaid for the presentation of said warrants, a true copy of the order of said County Court in the premises, and by publishing the same in newspapers, printed and published in the State of Arkansas, for two weeks in succession, the last insertion being thirty days before the time fixed by the said court for the presentation of said warrants; and that the said relator neglected and refused to present his said warrant, as required by the order of said court, and the notice aforesaid, although he was the holder of said warrant; and respondents aver and claim that, by his said neglect and refusal, he is forever debarred from deriving any benefit from his said alleged claim.” '
This paragarph was drawn under sections 614-16 Gantt’sDigest, and shows a compliance with the statute in making the order calling in the county warrants, and in giving the notice to holders in the modes prescribed by the Act.
If the paragraph had been treated as pleading a valid ' defense, and set down for hearing upon evidence, and if the respondents had proved the order and notice as alleged, the defense would have been established. No mandamus could be awarded to compel a levy and appropriation to pay a warrant barred by a call and failure to present it. The Statute makes such failure an absolute bar, and as to warrants issued after the passage of the act, it has been repeatedly held to be as valid as any other statute of limitation. Parsel v. Barnes & Bro. 25 Ark., 261; Fry, Collector, v. Reynolds, 33 Ib., 450; Allen v. Bankston, Collector, Ib., 740; Desha County v. Newman Ib., 793.
It is true that it is not alleged in the fifth paragraph of the response that it was declared in the calling order that warrants not presented within the time fixed should be barred, but this was not requisite.
If the calling order was made, and the notice given as alleged the Statute declares the consequence of a failure to present the warrants — that is, that the delinquent holders •“shall thereafter be forever debarred from deriving any benefits from their claims.”
It is usual in pleading the bar to exhibit a transcript of the calling order, but it is matter of evidence, and may be produced on the hearing, if the pleader is not ruled, on motion, to file it before.
For the error of the court in holding the whole response insufficient, the judgment must be reversed and the cause remanded for further proceedings. | [
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Terry Crabtree, Judge.
Appellants are homeowners in the Woodmeade Phase II subdivision in Lonoke County. In the summer of 2004, they placed a landscape structure on the eastern end of the subdivision’s Edgewood Drive. Appellee, the Juanita S. Wood Family Limited Partnership, owns land adjacent to the subdivision and claimed that the structure blocked its access thereto. On September 2, 2004, appellee asked the trial court to issue an injunction requiring removal of the impediment, and the trial court did so by order entered June 23, 2005. Appellants now appeal from that ruling, asserting numerous points of error. We affirm.
The subdivision was developed by the Wood family in the 1990s. It consists of several large lots on either side of Edgewood Drive, which the developers platted as a sixty-foot easement running west to east for the entire 1286-foot width of the subdivision. To the east lies appellee’s property — a large undeveloped tract known as the Turkey Farm. Fred Wood, one of the partners in appellee, testified that, for many years, he used the road that became Edgewood Drive to gain access to the Turkey Farm. In fact, when the road bed was laid and paved in approximately 1995, it extended some forty feet into the Turkey Farm. There was deposition testimony below that school buses and garbage trucks serving the subdivision used the Turkey Farm road extension as a turn-around area.
According to Wood, in 2002, some of the subdivision residents complained that his cattle, which were pastured on the Turkey Farm, were migrating into their neighborhood. As a result, Wood constructed a fence running north and south along the Turkey Farm property line at the eastern edge of the subdivision. The fence did not have a gate or a gap in it, so Wood accessed the Turkey Farm from another road farther east. Additionally, because the fence rendered the turn-around on the Turkey Farm property inaccessible, school buses no longer drove down Edgewood Drive, and garbage trucks had to back down the street. Subdivision residents, concerned by the situation, met with County Judge Charles Troutman in July 2004 and proposed: 1) construction of a new turn-around approximately thirty feet wide (west to east) and sixty feet long (north to south) at the eastern edge of the subdivision; 2) construction of a covered bus shelter in the turn-around area; 3) planting trees or shrubs around the shelter. The residents asked the county to “relinquish ownership” of the thirty-by-sixty-foot segment of roadway and offered to pay for the improvements. Judge Troutman met with the residents in July 2004, visited the site, and determined that the county would construct the turnaround. He did not expressly approve or disapprove of any further construction.
Thereafter, the judge searched the county records and discovered that Edgewood Drive had not been formally accepted as a county road. He issued an order declaring 1254 feet of Edgewood Drive as part of the county road system. The order did not accept the last thirty-three feet of the dedicated roadway.
After a county road crew began scraping the area for the proposed turn-around, appellants began construction of what the parties call a flower box in the turn-around area. The flower box is made out of landscape timbers, is sixteen to twenty-four feet wide, and contains, at the present time, planting soil and three concrete posts with reflectors. It is located in the thirty-three feet of roadway that the county judge did not formally accept, and it is situated virtually in the middle of the roadway, facing westward.
Fred Wood discovered the flower box on or about August 6, 2004, while its construction was in progress. He immediately removed the landscape timbers and cut a hole in his fence, allowing him renewed access to the Turkey Farm. When appellants continued to construct the flower box, Wood filed suit against them and against Judge Troutman and Lonoke County, seeking an injunction requiring removal of the flower box.
The case was heard by the trial judge on cross-motions for summary judgment. After a hearing, he ruled that Edgewood Drive was a public road; that appellee had a right to use Edgewood Drive for unencumbered access to its farm; and that the flower box was within the public right-of-way. The judge then issued a permanent injunction requiring appellants to remove the flower box within thirty days. Appellants now appeal from that order.
Normally, on a summary-judgment appeal, the evidence is viewed in the light most favorable to the party resisting the motion, and any doubts and inferences are resolved against the moving party. Tunnel v. Progressive N. Ins. Co., 80 Ark. App. 215, 95 S.W.3d 1 (2003). But, in a case where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Id. When parties file cross-motions for summary judgments, as was done in this case, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. Id.
We are also reviewing the issuance of an injunction. Equity matters, including the granting of an injunction, are reviewed de novo on appeal. Brown v. Seeco, Inc., 316 Ark. 336, 871 S.W.2d 580 (1994). However, the granting of an injunction rests within the sound discretion of the trial judge, id., and we will not reverse unless the trial court has abused its discretion. Doe v. Arkansas Dep’t of Human Servs., 357 Ark. 413, 182 S.W.3d 107 (2004).
Appellants argue first that the trial court erred in granting relief based on Edgewood Drive’s status as a “public road.” They contend that, while appellee maintained below that Edgewood was a county road, it did not assert that Edgewood was a public road; thus, they claim, the trial court issued the injunction on a theory neither pled nor tried by appellee. See Coran Auto Sales v. Harris, 74 Ark. App. 145, 45 S.W.3d 856 (2001) (holding that, where a particular theory is neither pled, tried by the express or implied consent of the parties, nor proven by the evidence, a trial court commits error in awarding judgment on that basis).
We find no grounds for reversal on this point. The relief sought by appellee in its complaint did not depend on any particular characterization of Edgewood Drive as a public road or a county road; appellee simply asked that the obstruction in the roadway be removed. Further, the county defendants’ motion for summary judgment averred that the last few feet of roadway not accepted by the county remained a public road, and appellee’s counsel stated during the summary-judgment hearing that “regardless of whether it’s a county road, it was at least a public road,” and “this is an access case over at least a public road.” Thus, Edgewood’s status as a public road was before the trial judge, and he did not err in awarding relief on that basis.
Appellants argue next that there was insufficient evidence that Edgewood was a public road. They cite Craig v. O’Bryan, 227 Ark. 681, 301 S.W.2d 18 (1957), in which a roadway across private land was deemed not to be public because the evidence did not show seven years of continuous adverse use by the general public and showed only occasional road work by the county. The case before us, however, does not involve an attempt to prove that a drive located on private land has become a public road via a prescriptive easement. See, e.g., Carson v. Drew County, 354 Ark. 621, 128 S.W.3d 423 (2003). Rather, the road in this case was conceived as a public road and was dedicated to the county by the subdivision’s developer. A dedication is the donation of land or the creation of an easement for public use. City of Cabot v. Brians, 93 Ark. App. 77, 216 S.W.3d 627 (2005). Additionally, there was evidence that the county had maintained the road, possibly since 1995, and that the road had been a school-bus and mail route. Such use has been considered significant in determining the public nature of a roadway. See, e.g., Frazier-Hampton v. Hesterly, 89 Ark. App. 211, 201 S.W.3d 447 (2005). Given these circumstances, we do not believe that the trial court erred in declaring Edgewood to be a public road.
Next, appellants argue that County Judge Charles Troutman acted within his discretion in making alterations to Edgewood Drive and that appellee had no right to prevent these alterations. They cite Arkansas State Highway Commission v. Bingham, 231 Ark. 934, 333 S.W.2d 728 (1960), for the proposition that a landowner may not complain about inconvenient changes in a public road, but that case is distinguishable. There, the issue was whether a landowner could receive just compensation when the Highway Commission changed a roadway and reduced traffic flow to the owner’s gas station. Our supreme court held that the landowner had no right to continued traffic flow but emphasized that, by contrast, a landowner’s right of ingress and egress via a public road — such as we have in the case at bar — is a compensable “property right.” Id. at 944-45, 333 S.W.2d at 734. The court thus recognized the importance accorded a landowner’s use of a public road to gain access to his property. See also Wright v. City of Monticello, 345 Ark. 420, 47 S.W.3d 851 (2001) (ruling that an adjoining landowner who has used a public street for ingress and egress has an independent right to use the street as a means of access, and abandonment of the road by the public entity does not affect that right).
Next, we address appellants’ contention that the trial court’s “sua sponte designation that Edgewood Drive was a public road had the effect of overruling the County Court’s decision and usurping the constitutional exercise of the County Court’s authority.” We point out first that, as stated earlier, the trial court’s determination that Edgewood was a public road was not a sua sponte ruling. Secondly, while we recognize that county judges have the authority to operate the system of county roads, see Ark. Const, amend. 55, § 3 (Repl. 2004), and that county courts have the power to make changes in county roads, see Ark. Code Ann. § 14-298-120 (1987), and Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002), nothing the trial court did in the present case invaded the county judge’s province. The court declared, as it had the authority to do, that appellants could not obstruct a public road and interfere with appellee’s access to its property. See generally Maroney v. City of Malvern, 320 Ark. 671, 899 S.W.2d 476 (1995).
Finally, we turn to appellants’ argument that appellee failed to prove it was entitled to injunctive relief. To establish sufficient grounds for a permanent injunction, the movant must show, inter alia, that it is threatened with irreparable harm; that this harm outweighs any injury that granting the injunction will inflict on other parties; and that the public interest favors the injunction. See United Food & Comm’l Workers Int’l Union v. Wal-Mart Stores, Inc., 353 Ark. 902, 120 S.W.3d 89 (2003). Appellants contend that appellee failed to meet the above criteria because it was Fred Wood, not appellants, who blocked access to the Turkey Farm by erecting the fence in 2002; that Fred Wood had an alternative means of accessing the property; and that Fred Wood testified that the flower box was not so wide as to completely restrict his access to the property.
We do not believe that the trial court abused its discretion in issuing the injunction. Appellants’ flower box has potential aesthetic value but serves no other discernable purpose. By contrast, the harm caused by the box is worthy of redress. Appellants have placed an obstruction in the middle of a public road; and, while the obstruction does not blockade the road in its entirety, it impedes appellee’s recognized property right to use the road as access to its property. See Wright, supra. Moreover, we believe that obstructing a public road, especially where it interferes with ingress and egress, constitutes irreparable harm justifying the issuance of an injunction. Money cannot restore the landowner’s property right nor measure the value of using of a public road. See generally United Food & Comm’l Workers, Int’l Union, supra (holding that harm is usually considered irreparable when it cannot be adequately compensated by money damages or redressed in a court of law). We further note that appellee’s right to use this public road was not diminished by the existence of alternative means of ingress and egress. See Wright, supra; see also Tweedy v. Counts, 73 Ark. App. 163, 40 S.W.3d 328 (2001).
In light of the above, we affirm the trial court’s decision to grant the injunction.
Affirmed.
Vaught and Baker, JJ., agree.
Appellants contend that Wright is not applicable because FredWood “admitted below that [appellee] held no private right[s] in the roadway beyond those of the general public.” Our reading ofWood’s testimony shows some confusion surrounding the questions he was asked on this point. In any event, we do not view his testimony as relinquishing appellee’s right to use the road for access to its property, which Wood consistently asserted throughout the case.
We also reject appellants’ brief argument that, because appellee constructed a fence that blocked the road in 2002, its entitlement to relief is barred by the unclean-hands doctrine. There is evidence that the fence was built as an accommodation to subdivision residents who were complaining about roaming cattle. | [
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Larry D. Vaught, Judge.
Appellant Dixie Griffin appeals from the decision of the Pulaski County Circuit Court terminating her parental rights to her three daughters. She argues on appeal that termination was improper because the children were not being cleared for permanent placement as required by Ark. Code Ann. § 9-27-341 (a)(2) (Supp. 2005). We affirm.
Because appellant does not argue on appeal that there was insufficient evidence to support the termination, only a brief review of the facts is necessary. Appellant’s three daughters, D.H., age sixteen, M.S., age twelve, and A.G., age six, were first brought into the custody of the Arkansas Department of Health and Human Services (DHHS) in January 2004 after appellant was arrested for aggravated robbery and DHHS received reports that her home was a “known prostitution and drug house.” At that time, D.H.’s father was deceased, M.S.’s father’s whereabouts were unknown, and A.G.’s father, Otis Griffin, was incarcerated following his fourth conviction for DWI. Over the course of this case, appellant was repeatedly incarcerated on charges of aggravated robbery, theft of property, and forgery.
Testimony at the adjudication hearing revealed that appellant was a chronic drug abuser, that appellant frequently allowed prostitutes and drug dealers into her home, that appellant did not provide for or care for her children on a regular basis, and that appellant often verbally abused the girls. Testimony also revealed that Otis Griffin was an alcoholic and drug abuser who often beat appellant while the girls were present.
Otis Griffin testified that, although he was only the legal father to A.G., he had been like a father to the three girls for twelve years. He asked the court to consider him for the girls’ placement. He admitted that he had been recently released from prison after serving eleven months, that he was a convicted sex offender, and that he had a history of domestic battery convictions.
Following the termination hearing, the court found that appellant was an unfit parent who had not remedied the conditions that warranted removal of her children in January 2004. The court found that the children were adoptable and that DHHS had proven by clear and convincing evidence that it was in the children’s best interest for appellant’s rights to be terminated. Because her mother’s rights had been terminated and her father was deceased, the court granted permanent custody of D.H. to Wanda Hailey, a family friend who had been caring for D.H. during the proceedings. The goal for M.S. was adoption. With regard to A.G., the court did not terminate the rights of Otis Griffin. Rather, the court agreed to give Otis more time to work with DHHS toward reunification. The court specifically noted that there was confusion in the record over what services Otis had been and had not been offered. Therefore, the court wanted to extend Otis’s time to comply to ensure his rights were protected. Hence, the goal for A.G. was either permanent placement with Otis or adoption if Otis’s rights were thereafter terminated.
We review cases involving the termination of parental rights de novo. Moore v. Ark. Dep’t of Human Servs., 95 Ark. App. 138, 234 S.W.3d 883 (2006). However, although we review the factual basis for terminating parental rights under a clearly erroneous standard, no deference is given to the trial court’s decision with regard to errors of law. See Sanford v. Sanford, 355 Ark. 274, 137 S.W.3d 391 (2003). Pursuant to Ark. Code Ann. § 9-27-341, termination is only appropriate in cases where “the department is attempting to clear a juvenile for permanent placement.” Arkansas Code Annotated section 9-27-338(c) (Supp. 2005) sets forth the following permanency goals (listed in order of preference) to be considered by the circuit court: (1) return the child to the parent if it is in the child’s best interest; (2) authorize a plan for termination of parental rights; (3) authorize a plan for guardianship; (4) authorize a plan for permanent custody; (5) continue the goal of reunification as long as the parent has complied with the case plan and reunification can take place within a reasonable amount of time; (6) authorize a plan for another permanent living arrangement.
Griffin first argues that the trial court erred in terminating her rights to her oldest daughter because the trial court placed D.H. in the permanent custody of Wanda Hailey. Griffin argues that there was no need to terminate her rights to D.H. because D.H. was not adopted by Hailey. Her argument requires us to infer that “permanent placement” as referenced in § 9-27-341 (a) (2) only refers to adoption, not permanent custodial arrangements.
We decline to so hold. Section 9-27-338(c) clearly anticipates that one of the “goals” can be a plan for permanent custody. Additionally, in our recent case Moore, supra, we affirmed a termination where we had reservations that the child was not adoptable — because of severe mental illness and abuse the child had suffered — and would instead need long-term therapeutic foster care. Consequently, although the goal in Moore was adoption, the likely outcome was a permanent custodial arrangement with a foster family. We also note that Ark. Code Ann. § 9-27-341 only requires that DHHS be “attempting to clear” the child for permanent placement to initiate termination proceedings. In the present case, DHHS’s goal with regard to D.H. was adoption or permanent custody, and DHHS was only pursuing termination in order to clear a pathway for either resolution. Therefore, we affirm on appellant’s first point.
Appellant also argues that the court erred in terminating her rights to M.S. and A.G. because the court chose to allow possible reunification with Otis. Appellant argues that because the court did not terminate Otis’s rights, it had no authority to terminate her rights. However, this is of no moment because the statute clearly contemplates termination of only a single parent’s parental rights. See Ark. Code Ann. § 9-27-341 (c)(1) (2)(A) (i); see also Moore, supra. Therefore, we affirm this case as to M.S. and A.G. on the basis that there is no requirement that both parent’s rights be terminated at the same time.
Affirmed.
Crabtree and Baker, JJ., agree.
About three months prior to taking the children into custody, DHHS had opened a protective services case on the family after receiving reports of inadequate supervision.
Although it is not clear from, the record, it appears that his conviction was based upon his having sex with a child (either thirteen or fifteen) when he was twenty-five.
Along with the termination of appellant’s rights, the court also terminated the rights of M.S.’s father, Christopher Sanders.
In her brief, appellant believes that the court’s order allowed for Otis to gain custody of both M.S. and A.G., however, upon reading the oral ruling and the written order, we are satisfied that the court was only referring to Otis earning (possible) custody of A.G., his biological and legal child, not M.S. | [
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Andree Layton Roaf, Judge.
Ricky Masters appeals the trial court’s order adjudicating his son D.M. as dependent-neglected. On appeal, he argues (1) that the trial court erred in denying his motion to dismiss the case because of an untimely probable cause hearing and (2) that the trial court’s finding that he posed a danger to D.M. was not supported by sufficient evidence. The appellee, Arkansas Department of Human Services (DHS), has supplemented the record in this case with a subsequent order terminating Ricky’s parental rights to D.M. on grounds that were not the basis of either the probable cause determination or adjudication order. Because Ricky has not appealed from the termination order, we dismiss this appeal as moot.
Because we are dismissing the appeal, a detailed recitation of the facts is not necessary. DHS initiated a dependency-neglect case in February 2005 regarding B.E. and D.M., Jennifer and Ricky Masters’ two children, after Ricky was accused of sexually abusing B.E., Jennifer’s daughter by a previous marriage. D.M. is the Masters’ son. A probable cause hearing was held on March 1, 2005. Ricky moved for a dismissal because the probable cause hearing was held one day outside the required five business days after the emergency order was signed. The trial court denied the motion to dismiss. At the conclusion of the hearing, the trial court found probable cause for DHS to take custody of both children. On March 8, there was a hearing on DHS’s motion to stop Ricky’s visitation with D.M. because he had confessed to molesting B.E. The trial court noted that it was dealing with a “confessed sexual offender” and that it wanted to protect D.M. until it could confirm that he could be safe. The trial court allowed supervised visitation at DHS.
At the dependency-neglect hearing on April 24, 2005, Ricky renewed his motion to dismiss on the basis that the probable cause hearing was not held within the statutorily-mandated time frame. The trial court again denied the motion. At the conclusion of the hearing, the trial court ordered that placement of D.M. and B.E. continue with the maternal grandparents and adjudicated both children dependent-neglected.
Ricky appeals only from the April 28, 2005 adjudication order. However, after the case was filed with this court, DHS moved to supplement the record and to dismiss the appeal as moot. This court granted the motion to supplement the record with an order terminating Ricky’s parental rights to D.M. that was filed on September 8, 2005. In this regard, DHS asserts that a decision in the present case would not change the legal standing of the parties because the termination of Ricky’s parental rights was not based on D.M. previously being found dependent-neglected at the adjudication hearing. We agree.
A case is moot when any decision rendered by this court will have no practical legal effect on an existing legal controversy. Richardson v. Ark. Dep’t of Human Servs., 86 Ark. App. 142, 165 S.W.3d 127 (2004). Here, the trial court issued an order terminat ing Ricky’s parental rights to D.M. based on the finding that Ricky had been sentenced in a criminal proceeding to a term of imprisonment that constituted a substantial period of D.M.’s life. Ricky did not appeal from this order; therefore, any decision that this court makes in the instant appeal regarding the timeliness of the probable cause hearing would have no legal effect on an existing controversy.
Ricky argues that the issue is not moot because the juvenile code’s structure and sequence requires a dependent-neglected adjudication as a prerequisite for the termination of parental rights and that the juvenile code expressly sets a dependent-neglected adjudication as a necessary condition for the termination grounds pled by DHS in this case. Ricky, however, has not appealed the termination order. A reversal of the adjudication order based on the fact that the probable cause hearing was held one day late would not change the findings of fact in this case regarding the termination decision. Moreover, it is not the adjudication order that Ricky takes issue with, it is the probable cause hearing, and probable cause orders are not appealable. Ricky’s appeal, therefore, is moot.
Appeal dismissed.
Glover and Neal, JJ., agree.
Arkansas Code Annotated section 9-27-341(b)(3)(B)(viii) was amended in 2005 so that the adjudication requirement was removed from this ground for termination, which is that the parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile’s life. There is no longer a requirement that other conditions in either (b)(3)(B)(i) or (ii) be met along with this condition. The 2005 amendment took effect on August 12,2005, before the termination order was entered in this case on September 8,2005. Therefore, the 2005 version of this statute governs this case and Ricky’s assertion that a dependent-neglected adjudication is required by § 9-27-341(b) (3) (B)(viii) is wrong. See Moore v. Ark. Dep’t of Human Servs., 333 Ark. 288, 969 S.W.2d 186 (1998) (holding that the statute in effect at the time the termination order is entered is controlling). | [
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Karen R. Baker, Judge.
Appellant James Liaromatis appeals the decision of the Arkansas Workers’ Compensation Commission denying him benefits for a low-back injury sustained on July 26,1999, lifting a patient while working as a paramedic for appellee. He argues that the Commission’s finding that he failed to prove the existence of an injury by medical evidence is contrary to the law and not supported by substantial evidence. We find no error and affirm.
Appellant was employed by Baxter County Regional Hospital as a paramedic for approximately fourteen years. On July 26, 1999, appellant was working for appellee when he responded to a call at a gas station where a man had fallen. The injured man had fallen in an awkward position between two poles, and appellant was not able to use proper back mechanics when he lifted the man. During the lift, he experienced a tearing sensation and a pop in his back. Appellant had a prior history of back problems including two prior injuries to his back in the course of his employment with the same employer.
The Commission, adopting the opinion of the Administrative Law Judge, found appellant’s description of his symptom onset to be credible and agreed that the medical records contained objective medical findings supporting the existence of an injury. The medical evidence relied upon by appellant included an MRI showing a small central disk protrusion at L4-5. However, the Commission found it was constrained on the record to find that appellant failed to establish the existence of new objective findings in the medical documentation cited. The Commission relied upon the testimony of Dr. Matt Wilson who reviewed appellant’s 1999 MRI performed after the July 26, 1999, incident and a 1996 CT scan of his lumbosacral spine. Dr. Wilson opined that a comparison of the two diagnostics indicated that the findings in 1999 were unchanged from the findings in 1996.
Similarly, Dr. Anthony McBride testified that there was no diagnostic test showing any differences before and after the 1999 alleged injury. While Dr. McBride assigned appellant a three-percent impairment rating for his 1999 injury, he conceded that he based this impairment rating on pain levels, and not on any diagnostic test results because the test results were unchanged before and after the 1999 injury.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979); Crossett Sch. Dist. v. Gourley, 50 Ark. App. 1, 899 S.W.2d 482 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; even if a preponderance of the evidence might indicate a contrary result, if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party. Keller v. L.A. Darling Fixtures, 40 Ark.App. 94, 845 S.W.2d 15 (1992).
The Commission also has the duty of weighing the medical evidence as it does any other evidence. Roberson v. Waste Management, 58 Ark. App. 11, 944 S.W.2d 858 (1997). 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. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). When the Commission denies benefits upon finding that the claimant failed to meet his burden of proof, the substantial evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for relief. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000). In addition, the Commission cannot arbitrarily disregard any witness’s testimony. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001).
In this case the Commission not only considered, but also accepted, the testimony of appellant regarding the onset of his pain after lifting the patient in July 1999. The onset of pain, however, does not satisfy our statutory criteria for benefits. Test results that are based upon the patient’s description of the sensations produced by various stimuli are clearly under the voluntary control of the patient and therefore, by statutory definition, do not constitute objective findings. Duke v. Regis Hair Stylists, 55 Ark. 327, 935 S.W.2d 600 (1996). The record in this case was void of any post-July 26, 1999, objective evidence showing that appellant had suffered a new injury. Given the fact Dr. McBride assigned an impairment rating subsequent to the 1999 injury relying solely on test results based upon appellant’s pain descriptions, the Commission was constrained from finding that appellant had sustained a compensable injury.
Appellant argues that, in finding that appellant failed to prove a compensable injury, the Commission went beyond the express language of the statute and created a requirement that appellant must not only establish an injury with medical evidence supported by objective findings but must also establish that the objective findings be new and not in existence prior to the occurrence of the injury claimed. He asserts that, while the law requires that the injury be established by medical evidence sup ported by objective findings, nothing in the law requires that the injury be established with “new objective findings.”
Appellant’s assertion relies heavily on the Commission’s finding that appellant’s description of his onset of pain was credible. From this premise, appellant argues that the statute does not require that a causal connection be established with medical evidence supported by objective findings; therefore, the fact that appellant presented medical evidence that an injury exists satisfied the statutory requirements for a compensable injury.
We agree with appellant that objective medical evidence is not essential to establish the causal relationship between the injury where objective medical evidence establishes the injury’s existence, and a preponderance of other non-medical evidence establishes a causal relation to a work-related incident. See Wal-Mart Stores v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999); Wal-Mart Stores v. Leach, 74 Ark. App. 231, 48 S.W.3d 540 (2001). However, we disagree with appellant’s premise that the medical evidence must merely establish the existence of the injury. The question is not whether there are new objective findings, but whether there is a new compensable injury. It is the injury for which appellant seeks benefits that must be proved with objective medical findings.
Therefore, when appellant sought benefits for an alleged injury sustained on July 26, 1999, it was his burden to prove that the injury was caused by the events on that day. This burden necessarily required that he present objective medical findings establishing an injury suffered on that day in addition to his nonmedical evidence offered to establish a causal relation to the work-related incident. See Ark. Code Ann. § 11-9-102 (1997 & Supp. 2005). A compensable injury must be established by medical evidence supported by objective findings, and medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. See Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). Speculation and conjecture cannot substitute for credible evidence. Id.
Appellant’s failure to present objective medical findings of an injury sustained in July 1999 also precludes recovery for any aggravation of a preexisting condition. An aggravation is a new injury resulting from an independent incident. Smith-Blair, Inc. v. Jones, supra. Being a new injury with an independent cause, an aggravation must meet the requirements for a compensable injury. Id.
The medical evidence in this case established that the condition of appellant’s lumbar spine after the July 1999 incident was virtually unchanged from the condition diagnosed by tests performed in 1996. Therefore, the Commission did not err by finding that appellant had failed to establish a compensable injury, and its requirement that objective medical findings establish an injury occurring on July 26, 1999, did not impose a requirement in addition to our statutory prerequisites for benefits.
Accordingly, we affirm.
Pittman, C.J., and Robbins, J., agree. | [
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Josephine Linker Hart, Judge.
This is a contest over the validity of the will and amendments to the declaration of trust of George Richard Mitchell (Richard). Richard’s widow, Glenda Kay Mitchell (Kay), died during the pendency of the action below, and her son, appellant Jerald Medlock, was appointed personal representative of her estate. Jerald brings this appeal from an order of the Sebastian County Circuit Court finding that the 2003 will and amendments to the trust proffered by Kay were the product of undue influence while the 1998 will proffered by appellee Michelle Mitchell was valid. Michelle is Richard’s daughter and was appointed executrix of his estate. Jerald raises two points on appeal, arguing that the trial court erred in applying the presumption of undue influence and that, even if the trial court correctly applied the presumption of undue influence, Jerald showed by a clear preponderance of the evidence that there was no undue influence. We disagree and affirm.
Richard Mitchell executed a will on August 20, 1998, leaving his estate equally to two of his five children, Mark and Michelle. Richard and Kay were married on December 28, 1998. The will appointed Michelle and Kay as co-executrixes. On the same day, Richard created a revocable living trust, with himself as trustee and the primary beneficiary of the trust. The trust was to terminate ten years after Richard’s death. Upon termination of the trust, the corpus was to be distributed to Mark and Michelle. Michelle and Kay were named as successor co-trustees. The trust declaration also contained a “no contest” clause. On August 9, 2000, Richard amended the trust to name Kay as the sole first successor trustee. If Kay was unable or unwilling to serve, or if she resigned or was removed, Michelle was to be named successor trustee in her place.
In March 2003, Richard was diagnosed with terminal lung cancer. On June 30, 2003, Richard executed another will, leaving his entire estate to Kay. The will specifically stated that it made no provision for any of Richard’s children and named Kay as execu trix. Richard amended the declaration of trust on July 8, 2003, to provide that, upon termination of the trust, Michelle was to receive $10,000 and a condominium, and the remaining assets were to be transferred to Kay. During the ten years after Richard’s death, the trust was to pay Kay $2,500 per month for her support and $200 per month for Michelle’s support. The trust was also amended to specifically provide that Mark was not to benefit from the trust.
Richard died on August 10, 2003. On December 1, 2003, Michelle filed a petition seeking to probate the August 20, 1998, will. She also asserted that she was named coexecutrix and sought to be appointed personal representative of the estate. The petition alleged that the value of the estate was in excess of $3,500,000. On January 6, 2004, Kay responded to Michelle’s petition, alleging that the 1998 will had been revoked by a will dated June 30, 2003. Kay also filed a petition on that day seeking to have the June 30, 2003 will admitted to probate and to be appointed sole personal representative of the estate. Kay’s response and petition both alleged that the trust established in August 1998 had been modified on June 30, 2003, and contained a “no contest” provision. Michelle responded to Kay’s assertions, alleging that the June 30, 2003, will was invalid because of Richard’s incompetence at the time of its execution and further that it was the product of undue influence or fraud. She also objected to Kay’s appointment as personal representative. On February 1, 2005, Michelle filed a supplemental petition for declaratory judgment that the July 2003 amendment to the declaration of trust was likewise void and invalid.
At trial, numerous witnesses testified for both sides. Jerald, in arguing for the validity of the 2003 will and amendments to the trust, relied on statements Richard made to Kay and to his attorneys that he was disappointed in Mark and Michelle, as well as his desire to see that Kay was provided for. The disappointment in Mark resulted from statements Kay made Kay also held powers of attorney limited to two specific investment accounts, to Richard that Mark had wanted Richard removed from life support; that he had broken into Richard’s home and office; that he had stolen $10,000 from Richard; and that he had made sexual advances towards Kay. Richard was also said to have been upset to discover that Mark was sharing information about Richard’s finances with his mother. Richard’s disappointment with Michelle stemmed from her problems with drugs and alcohol, a lesbian relationship she had, and her inability to hold a job or manage money.
Michelle argued that the 2003 will and trust amendments were the product of undue influence exercised by Kay, which, according to Michelle, was shown by the dramatic changes in Kay’s relationship with Richard’s children after Richard was diagnosed with cancer. These changes include Kay’s statement that she wanted the will changed; her false accusations about Mark to Richard; her presence in the hospital room when Richard discussed the changes to the will and the trust declaration with his attorneys; her presence when both the will and the trust amendments were executed; and her holding Richard’s general power of attorney.
The trial court issued a letter opinion, finding that a confidential and fiduciary relationship existed between Richard and Kay, resulting in a rebuttable presumption of undue influence. The court noted that the burden of establishing that the new beneficiary did not take advantage of the confidential relationship rests with Jerald as the proponent of the 2003 will and trust amendments and must be established by a clear preponderance of the evidence. The court then concluded that Jerald did not rebut the presumption of undue influence as a result of the confidential and fiduciary relationship between Richard and Kay. Judgment was entered on May 13, 2005, and a timely notice of appeal followed.
Jerald raises two points on appeal: that the trial court erred in finding that a confidential relationship existed between Richard and Kay and that the relationship gave rise to a presumption of undue influence and, further, even if the trial court correctly found that a confidential relationship existed between Richard and Kay, the trial court erred in finding that Jerald did not rebut the presumption.
We review probate cases de novo, but we will not reverse the decision of the probate court unless it is clearly erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001). Due deference will be given to the superior position of the probate judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996).
In his first point, Jerald argues that the trial court erred in finding a confidential relationship between Richard and Kay that can give rise to a presumption of undue influence. He argues that the factors cited by the trial court in its order do not establish a confidential relationship. Rather, according to Jerald, the cited factors show a normal relationship between a husband and wife. However, our supreme court has indicated that the relationship between a husband and wife is a confidential relationship, which, when coupled with other facts, can trigger a presumption of undue influence. Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973). A confidential relationship also arises between a person who holds power of attorney and the grantor of that power. Dent v. Wright, 322 Ark. 256, 909 S.W.2d 302 (1995). It is undisputed that Kay held Richard’s power of attorney. Jerald argues that the power of attorney Kay held was limited to two investment accounts. This ignores the testimony of attorneys James Pierce and Kelly Pierce that Richard executed a broad, durable general power of attorney in favor of Kay prior to the execution of the 2003 will or trust amendments.
Whether two individuals have a confidential relationship is a question of fact. See Lucas v. Grant, 61 Ark. App. 29, 962 S.W.2d 388 (1998); Savage v. McCain, 21 Ark. App. 50, 728 S.W.2d 203 (1987). We cannot say that the trial court clearly erred in finding under the facts of the case that a confidential relationship existed between Kay and Richard, either because of their confidential relationship as husband and wife and Richard’s terminal illness or because Kay had Richard’s durable power of attorney. It is the combination of both confidential relationships that gives rise to a presumption of undue influence in the present case. We affirm on this point.
In his second point, Jerald argues that, even if this court agrees that a confidential relationship existed between Richard and Kay, he successfully rebutted the presumption. Whether a will was procured by undue influence is a question of fact for the trier of fact. Jones v. Balentine, 44 Ark. App. 62, 866 S.W.2d 829 (1993); Carpenter v. Horace Mann Life Ins. Co., 21 Ark. App. 112, 730 S.W.2d 502 (1987). The test to determine whether a will is the product of undue influence is the same for a trust that takes effect, in part, at death. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997); Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984).
It is not enough that a confidential relationship exist in order to void a testamentary instrument; there must be a malign influence resulting from fear, coercion, or any other cause which deprives the testator of his free agency in disposing of his property. Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001); Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999). Undue influence on a testator may be inferred from the facts and circumstances. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d.531 (1992); Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955). First, we consider the fact that Richard was in the hospital in a weakened state at the time the 2003 instruments were prepared. This could indicate undue influence. Pyle, supra. According to Michelle, during Richard’s hospitalization, Kay indicated that she wanted Richard’s will changed, suggesting that Kay was the driving force behind the changes. Dunn, supra. By her own testimony, Kay admitted to being present when Richard discussed the will and amendments to the trust with the Pierces, another possible sign of undue influence. See In re Estate of Garrett, 81 Ark. App. 212, 100 S.W.3d 72 (2003). She was also present at the execution of the will and the trust amendments, another factor indicating undue influence if other factors are present. Estate of Brock, 692 So. 2d 907 (Fla. App. 1996); see also Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984).
A will may also be invalidated for undue influence under certain circumstances where a person makes false statements and accusations to a testator concerning the natural objects of his bounty. In re Estate of Accomazzo, 492 P.2d 460 (Ariz. App. 1972); Allee v. Estate of Sigears, 182 S.W.3d 772 (Mo. App. 2006); see also Allison v. Stroh, 231 Ark. 862, 333 S.W.2d 737 (1960). Here, the trial court specifically found that Kay’s statements to Richard that Mark broke into the office and wanted Richard taken off of life support precipitated the changes to the will and trust made in Tune and July 2003.
In arguing that he rebutted the presumption of undue influence, Jerald relies almost exclusively on the testimony of Kay and attorney Kelly Pierce concerning Richard’s statements about the reasons why he did not want to leave Mark and Michelle anything. Cases involving undue influence will frequently depend on the credibility of witnesses and, as stated above, we give due deference to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Pyle, supra. We cannot say that the trial court was clearly erroneous when it found that Jerald had not rebutted the presumption of undue influence.
Affirmed.
Robbins and Glover, JJ., agree.
The will specifically stated that no provisions were being made for three of Richard’s children, Richard Mitchell, Michael Mitchell, or Robert Mitchell. Richard had adopted Michael and Robert, the children of his ex-wife,Beverly Mitchell. Richard and Beverly were divorced in 1989.
Kay also held powers of attorney limited to two specific investment accounts. | [
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Larry D. Vaught, Judge.
Appellant DeQueen Sand & Gravel (DSG) appeals the decision of the Workers’ Com pensation Commission that found Cox was permanendy and totally disabled due to a compensable injury. On appeal, DSG argues that the Commission’s decision was not supported by substantial evidence. We disagree and affirm.
Cox worked as a rock crusher for DSG for twenty years, a position that frequently exposed him to large quantities of silica dust. As a result, Cox was diagnosed with silicosis on October 19, 2000, by Dr. Charles Hiller. Pulmonary function tests performed by Dr. Hiller showed Cox’s forced vital capacity maneuver (FVC) to be 89% of predicted levels and his forced expiratory of volume in one second (FEV-1) to be 69%. Cox was referred to Dr. Robert Johnson for treatment of the silicosis, and he added a diagnosis of chronic bronchitis. Cox was told by both doctors that he needed to stay away from silica dust. After requesting a transfer, Cox was relocated to the service station at DSG, where dust levels were lower.
Dr. Johnson testified that he performed breathing tests on Cox in July 2001 that showed that Cox’s FEV-1 had decreased to 58%. Cox was tested again on May 30, 2002, and showed no improvement, although Dr. Johnson’s nurse reported that Cox gave poor effort on the test. Dr. Johnson noted, however, that Cox’s lung functions were deteriorating and therefore, recommended that Cox leave his present place of employment. He was again tested in June 2003, and his FEV-1 was at 52% — worse than his previous two tests. Records indicate that Cox showed good effort on this test.
Although Dr. Johnson initially assessed Cox an impairment rating of20 — 30% in August 2002, Dr. Johnson testified that a more appropriate rating was 50% based on Cox’s most recent results on the FEV-1 and the American Medical Association’s guidelines. Dr. Johnson stated that according to the guidelines, when the FEV-1 is in the 41-59% range, the impairment rating increases to between 26% to 50%, which is in the “moderate” range. Although Dr. Johnson did testify that Cox’s symptoms were better and his FVC test results were improving, Dr. Johnson stated that Cox’s disabil ity was greater than it had been. Based on his complete examination of Cox, Dr. Johnson assigned Cox an impairment rating of 50%.
Bob White, a vocational specialist, interviewed Cox and evaluated his vocational abilities. White testified that Cox was forty-five years old, had an eighth-grade education, and had “good” and “bad” days with regard to his medical condition. White stated that Cox could do “sedentary” to “light” work, but was required to avoid dust. White testified that Cox’s medical condition, combined with his lack of education and age, would likely create a problem for Cox with regard to employment. White stated that Cox would have a better chance to find employment if he was able to secure a high-school equivalency diploma, something that Cox was pursuing. White also testified that Cox had applied for several jobs but had not been extended an offer of employment. White attributed this to the fact that Cox did not have a high-school diploma. White admitted that Cox was a hard worker with a stable job history, but White explained that in the current job market, a person without a high-school diploma or its equivalent had a much more difficult time finding employment.
In reviewing decisions of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm the decision if it is supported by substantial evidence. Clairday v. Lilly Co., 95 Ark. App. 94, 234 S.W.3d 347 (2006). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id. It is the Commission’s function to determine witness credibility and the weight to be afforded to any testimony; the Commission must weigh the medical evidence and, if such evidence is conflicting, its resolution is a question of fact for the Commission. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003).
Pursuant to Ark. Code Ann. § ll-9-704(c)(l)(B) (Repl. 2002), any determination of the existence of a physical impairment must be supported by objective and measurable medical findings. Arkansas Code Annotated section ll-9-102(16)(A)(i) (Supp. 2005) further clarifies that “objective findings” are those findings that cannot come under the voluntary control of the patient. In Emerson Elec. v. Gaston, 75 Ark. App. 232, 236, 58 S.W.3d 848, 851 (2001), the appellant challenged the findings of the Commission because the pulmonary testing was at least, in part, controlled by the effort given by the claimant. Appellant contended that because the claimant had control over part of the test, the results of those tests were not “objective medical findings.” We held that “pulmonary-function testing is clearly an objective test due to the objective data the test produces, in spite of the fact that a patient is at least partially able to control his or her breathing.”
DSG first argues that the Commission erred in awarding Cox a 50% impairment rating because there was no evidence to justify that rating. However, Dr. Johnson gave detailed testimony as to why he would assign Cox a 50% impairment rating. Based on his medical opinion of Cox’s overall health, the results of the breathing tests he performed on Cox, and the AMA guidelines, he assessed that Cox was entitled to a 50% impairment rating. Although there was some evidence to suggest that Cox did not put forth his best effort on every breathing test, the Commission is charged with determining issues of credibility and weighing medical evidence. Additionally, as we stated in Gaston, even though pulmonary-function tests can be somewhat controlled by a patient’s effort, those tests are still objective medical findings. Based on the testimony of Dr. Johnson and the medical results of Cox’s breathing tests, reasonable-minded persons could agree with the finding of the Commission; therefore, we affirm on this point.
DSG’s second argument is that the Commission erred in assigning Cox wage-loss benefits of 50%. 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, and work experience. Id. at 237-38, 58 S.W.3d at 851-52. In considering factors that may affect an employee’s future earning capacity, the court considers the claimant’s motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant’s loss of earning capacity. Id., 58 S.W.3d at 851-52.
Here, Dr. Johnson’s diagnosis required that Cox refrain from working in any environment that would cause him to be exposed to excessive dust. White testified that because Cox had been in his line of work for over twenty years and did not have a high-school diploma or its equivalent, his employment opportunities were limited. Although White was unable to determine how motivated Cox was to return to work, the Commission felt that the fact that Cox filled out multiple job applications, that he testified that he wanted to work, and that he had been a hard worker for many years as a rock crusher established that Cox was motivated to work. Based on this evidence, we are satisfied that substantial evidence supports the Commission’s award of 50% wage loss.
Affirmed.
Hart and Roaf, JJ., agree.
DSG stipulated that Cox’s silicosis was compensable.
Predicted levels are those generated by normal individuals based on age, height, and sex. Therefore, Cox performed in the eighty-ninth percentile for a person of his age, height, and sex.
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George K. Cracraft, Judge.
A & P’s Hole-In-One, Inc., appeals from an order of the Pulaski County Chancery Court dismissing its complaint, which sought from Sherry Moskop, president of A & P, a full accounting, payment for all unaccounted-for corporate funds, and damages for harm to its reputation and goodwill. We find sufficient merit in one point raised to warrant reversal and remand for further proceedings.
Appellant, A & P’s Hole-In-One, Inc. (the corporation), brought this action in the chancery court of Pulaski County against appellee, Sherry Moskop. In October 1988, appellee and Vernon O. Parker formed the appellant corporation. Pursuant to an agreement between appellee and Parker, Parker advanced the sum of $40,000.00 to be deposited in the corporation account that was to represent a $20,000.00 contribution from each of them. Each would then own equal interests in the corporation. Parker’s advance made on behalf of appellee was evidenced by a note payable in monthly installments and secured by a lien on her fifty percent of the corporation stock. According to their written agreement, all checks drawn on the corporate bank account would be signed by both appellee and Parker. The evidence reflects that Parker delivered his check for $40,000.00 to appel-lee, and she executed the note and security agreement. Parker advanced an additional $10,000.00 of his own funds into the corporate account before the business opened in March 1989.
The corporation engaged in the operation of a miniature golf course. In connection with this operation, the corporation also had a number of coin-operated video games from which it received one-half of all amounts collected. Appellee admitted that she was the president of the corporation and was the person that operated it. Appellee testified that her husband assisted her on occasion but “did what I told him.” She admitted that Vernon Parker still worked full-time at his regular job even though he helped out in the evenings.
There was no dispute that appellee kept those company records designed to reflect all receipts and expenditures. According to the testimony, the cash register tapes and other documents showing receipts and disbursements were to be entered in the voucher book on a daily basis. Until mid-April 1989, the records were kept on the company premises. At appellee’s suggestion, they were moved to her home and kept there.
At the end of the first six months’ operation, appellee went on vacation, leaving operation of the business to Parker. Parker’s suspicions were aroused when he discovered that, although the checkbook showed a balance of $7,000.00, a check for the lease payment was not honored because the bank balance was actually less than $300.00. In September 1989, appellee ceased to operate the business and transferred all of her interest in it to Parker in cancellation of the $20,000.00 note given at the time the corporation was formed. It was then learned that, although they had agreed that all checks would be signed by both Parker and appellee, a number of checks had been written by appellee without Parker’s signature or authorization. It was also learned that the account had been opened with an initial deposit of only $38,530.00. From the bank records, he also learned that some checks had been written on the company account to stores, shops, and suppliers for which he had not authorized payment. There was no explanation on the checks indicating for what purpose the payments were being made. Some of the checks were payable to members of appellee’s family, and some, in substantial amounts, to appellee personally or to cash. There were canceled checks payable to her husband in excess of $3,000.00, for which there was no explanation.
Parker was able to locate some cash register receipts and other records in a box in the company office. Some others were delivered to him by appellee’s husband. Parker never received tapes covering a two- or three-week period. The voucher book was not returned to the corporation, although demand had been made. It was learned from the owners of the video machines that they had paid the corporation over $3,500.00 as its share of the profits on those machines. From information available to the appellant corporation, Parker was able to partially reconstruct its financial affairs. Parker’s figures showed that at least $81,206.04 had been received by the corporation, but the bank records and canceled checks would only account for $66,052.70 of that amount. The balance remained unexplained. In addition, the corporation began receiving complaints from a number of suppliers that bills rendered to the corporation had not been paid. Parker advanced an additional $3,500.00 from his personal funds to the corporation to pay those unpaid bills.
Appellee testified that without records she was unable to state the purpose for a number of those checks written to herself, her husband, or places such as Wal-Mart, Sam’s, and Family Home Center. She testified that some of the checks payable to her brother were for his labor in construction of the miniature golf course. She testified that she was unaware of the total amount of money that had been received by the corporation, the total amounts disbursed, or the purpose of many disbursements.
At the conclusion of the hearing, the court made the following announcement:
As for setting the amount of damages, I’d have to have some specific amount. I can’t just award some speculative amount of damages. Quite frankly, in this situation, I’m not certain that it’s possible to arrive at a specific amount, at least from the way it appears from here, lacking a more thorough bookkeeping system and method of keeping receipts and records of revenue and so forth. It’s just impossible to tell. And that, of course, affects the ability of [appellee] to give an accounting. You say you don’t have the books and records; she says she doesn’t have the books and records. I don’t know how an accounting can be given.
In these cases the person who is asking for relief, the plaintiff, which would be [the corporation], has the burden of proving what we call a preponderance of the evidence. That means that you just have to have the weight of evidence on your side. And I can’t say that given the uncertainty of the testimony and the exhibits and the evidence that’s been offered that burden has been met.
I don’t think things were done the way they should have been done, but I know of no way that I can give you the relief that you asked for. That’s going to be my ruling and I’ll prepare the order.
From the entry of an order dismissing the complaint with prejudice comes this appeal.
The appellant corporation’s complaint alleged, inter alia, that it had suffered damage to its reputation and goodwill in the community as a result of appellee’s conduct. Appellant offered no evidence as to the amount of any such damages. A party seeking damages has the burden of proving his claim, and if no proof is presented to the trial court that enables it to fix damages in dollars and cents, the trial court cannot award damages. McCorkle v. Valley Forge Insurance Co., 11 Ark. App. 41, 665 S.W.2d 898 (1984). We agree with the chancellor that the appellant corporation failed to prove the amount of its actual damages for harm to its reputation and goodwill.
However, we agree with the appellant corporation that the chancellor improperly placed the burden of proof on the corpora tion on the issue of accounting for the corporation’s property, and that the chancellor erred in dismissing that portion of the complaint seeking reimbursement for corporate funds not properly accounted for.
An accounting is an equitable remedy designed to provide a means for compelling one, who because of a confidential or trust relationship has been entrusted with property of another, to render an account of his actions and for the recovery of any balance found to be due. 1 Am. Jur. 2d Accounts and Accountings § 45 (1962). An officer or director of a corporation occupies a fiduciary relation to her corporation. This relation is predicated on the fact that she has voluntarily accepted a position of trust and has assumed the control of the property of others, and as such, occupies a fiduciary relationship to the corporation and its stockholders. Taylor v. Terry, 279 Ark. 97, 649 S.W.2d 392 (1983); see also Raines v. Toney, 228 Ark. 1170, 313 S.W.2d 802 (1958); Hornor v. New South Oil Mill, 130 Ark. 551, 197 S.W. 1163 (1917); Nedry v. Vaile, 109 Ark. 584, 160 S.W. 880 (1913). The existence of a fiduciary relationship bestows equitable jurisdiction for a suit for an accounting. Walters-Southland Institute v. Walker, 217 Ark. 602, 232 S.W.2d 448 (1950). The duty to. account has been specifically applied to corporate officers who control a corporate enterprise and its funds. See id.; Red Bud Realty Co. v. South, 96 Ark. 281, 299, 131 S.W. 340 (1910).
Here, appellee admitted that she managed and controlled the corporation’s financial records. It was admitted that, although Parker’s signature was to be required on all checks drawn on the corporate accounts, appellee had opened the account in such a way as not to require his signature or a prior authorization of her expenditures. She issued all checks on her own signature and upon her sole authorization. There was evidence that some of the checks were written to her own order and there were checks written for substantial amounts to her husband. None of those checks bore any indication of their purpose, authorization, or connection with the corporation’s business. There were a number of other checks for substantial sums payable to shops and merchants. Those checks also gave no indication of their purpose or connection with the corporation or why they had been paid from corporate funds. From the information available to appellant corporation, it was established that there was a discrepancy between the amount of money known to have been paid to the corporation and that which passed through its bank accounts, but the exact amount of unauthorized disbursements was unknown.
Under the facts and circumstances reflected by this record, we conclude that it was error for the chancellor not to grant appellant’s prayer for an accounting. The chancellor based his denial in part upon appellant’s inability to prove the discrepancies. However, the burden of proving that the accounts had been properly handled should have been placed on the fiduciary rather than the corporation. In Red Bud Realty Co. v. South, supra, on facts not entirely unlike those present here, the court explained the duty of a corporate officer, who is entrusted with corporate funds, to account for those funds:
The dealings of a trustee with the trust property are narrowly scrutinized by courts of equity. If impugned, they cannot stand unless characterized by the utmost good faith and candor. And the burden is upon the trustee to show their entire fairness. Where the duty of the trustee or agent requires it, • he must keep true, regular and accurate accounts of all his transactions, both of receipts and disbursements, and should render a full and complete statement, supported by proper vouchers. As is said in the case of Landis v. Scott, 32 Pa. St. 495: “If he does not, every presumption of fact is against him. He cannot impose upon his principal, or cestui que trust, the obligation to prove that he has actually received what he might have received,” or that he has not expended what he claims to have paid out. If he does not keep clear, distinct and accurate accounts, with proper vouchers, “all presumptions are against him, and doubts are taken adversely to him.” [Citations omitted.]
Red Bud Realty Co., 96 Ark. at 299, 131 S.W. at 348 (1910).
It is apparent from the chancellor’s comments that he was swayed to some extent by the fact that neither appellee nor appellant now had the voucher book or a complete set of company records and ledgers. However, it was appellee’s duty to keep and maintain these records of the corporation’s affairs. She is now in no position to complain or contend that the duty is on the appellant to reconstruct the records of her administration. The degree of difficulty in preparing a fiduciary account should not foreclose the need of it in an appropriate case. As stated in Red Bud Realty Co. v. South, supra, if appellee does not have the proper records, then every presumption must be taken adversely to her.
The decree of the chancellor is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Danielson and Rogers, JJ., agree. | [
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John E. Jennings, Judge.
Douglas Kirk was injured in a one vehicle accident in White County. Kirk was rendered unconscious and taken by ambulance to the hospital; his car was rendered inoperable.
White County Deputy Ed Meharg arrived at the accident scene and began looking through the car for registration papers. In the process he found a black box between the console and the driver’s seat. When he opened the box he found several small plastic bags containing white powder. The powder was later identified as methamphetamine and Kirk was charged with its possession. When the trial judge denied Kirk’s motion to suppress the evidence, Kirk entered a conditional plea of guilty under Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, reserving his right to appeal. The sole issue before us is whether the search of appellant’s car violated the Fourth Amendment to the United States Constitution. We conclude that it did and that the case must be reversed.
The State’s only witness at the suppression hearing was Deputy Meharg. He testified that the car was “totaled out” and was located on private property. He said that he did not think that there was a license plate on the car and that, as best he could remember, there was some reason why he was trying to find out who the owner of the automobile was. He knew that Kirk was the driver because emergency personnel had given him Kirk’s driver’s license. He thought that Kirk may have been unconscious.
Deputy Meharg testified that the car was filled with “bingo cards or papers.” He testified that he opened the black box in the front seat because he thought there might be some identifying papers in it. He said that he had no reason to believe that the car was stolen, but that he was “just curious who it belonged to.” There was no indication that the car was obstructing a public way, and it had not been impounded.
The State concedes that the officer’s actions constituted a “search” within the meaning of the Fourth Amendment. All searches conducted without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. Johnson v. State, 291 Ark. 260, 724 S.W.2d 160 (1987) cert. denied, 484 U.S. 830. While the interior of an automobile is not subject to the same expectation of privacy that exists with respect to one’s home, a car’s interior, as a whole, is nonetheless subject to Fourth Amendment protection from unreasonable intrusions by the police. New York v. Class, 475 U.S. 106 (1986). A citizen does not surrender all the protections of the Fourth Amendment by entering an automobile. See Delaware v. Prouse, 440 U.S. 648 (1979). When a search is made without a warrant, the burden of proof rests on those who seek to justify it. Dominguez v. State, 290 Ark. 428, 720 S.W.2d 703 (1986).
The State first argues that the defendant abandoned his automobile and thus relinquished any reasonable expectation of privacy. See Wilson v. State, 297 Ark. 568, 765 S.W.2d 1 (1989). One who has no reasonable expectation of privacy lacks standing to complain of an illegal search. Rawlings v. Kentucky, 448 U.S. 98 (1980).
Abandonment, in this sense, is primarily a matter of intent. United States v. Colbert, 474 F.2d 174 (5th Cir. 1973); United States v. Manning, 440 F.2d 1105 (5th Cir. 1971) cert. denied, 404 U.S. 837.
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, supra (quoting U.S. v. Colbert) (emphasis added); State v. Tucker, 268 Ark. 427, 597 S.W.2d 584 (1980). In the case at bar the defendant was removed from his vehicle while unconscious and taken to the hospital. There was no evidence of intent to abandon. It cannot be said that he “voluntarily” left his car behind. This is also not a case of apparent abandonment as in Lipovich v. State, 265 Ark. 55, 576 S.W.2d 720 (1979); here, the officer was aware of the facts regarding the vehicle.
The State next contends that the intrusion into the vehicle here was pursuant to the “community caretaking functions” of the police and that the search was in the nature of an inventory. The State relies in large part on Cady v. Dombrowski, 413 U.S. 433 (1973), and South Dakota v. Opperman, 428 U.S. 364 (1976). If we assume that the search was in the nature of an inventory search, it is governed by the principle stated in Florida v. Wells, 495 U.S. 1 (1990). In that case, Wells was arrested and his car was impounded. In the subsequent inventory search, officers found a locked suitcase in the trunk of the car. The suitcase was opened and found to contain marijuana. There was no evidence of any police department policy on the opening of closed containers found in the course of an inventory search. Chief Justice Rehnquist, speaking for the Court, said:
Our view that standardized criteria, or established routine, must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. . . .
... We hold that absent such a policy the instant search was not sufficiently regulated to satisfy the Fourth Amendment and that the marijuana which was found in the suitcase, therefore, was properly suppressed by the Supreme Court of Florida. [Citations omitted.]
Both Cady v. Dombrowski and South Dakota v. Opperman are distinguishable. In both cases the police had lawfully impounded an automobile and the subsequent inventory was pursuant to standard police procedures. The opening of closed containers in an inventory search is permissible only if officers are following standard police procedures. See Colorado v. Bertine, 479 U.S. 367 (1987). It is apparent that the burden rests on the State to show what the standard policy is. See Florida v. Wells, supra; People v. Lear, 217 Ill. App. 3d 712, 577 N.E.2d 826 (1991).
The case at bar shows factual similarity to Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990) cert. denied, 111 S. Ct. 757. In that case, however, there apparently was no issue raised relating to the opening of closed containers and the vehicle had been impounded.
It could also be argued that the situation is similar to the facts in New York v. Class, 475 U.S. 106 (1986). There the defendant was stopped for speeding. While the driver was outside the car talking to one officer, another officer opened the car door to look for a vehicle identification number. In doing so he moved some papers obscuring the dashboard where the number was located and saw a gun. The driver was arrested on a firearms violation.
The Court held that the intrusion by the officer was a search, but that in balancing the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the governmental interests alleged to justify the intrusion, the Court concluded that the search was permissible. Significantly, the Court in Class noted:
The officer did not root about the interior of the respondent’s automobile before proceeding to examine the VIN. He did not reach into any compartments or open any containers. He did not even intrude into the interior at all until after he had checked the door jamb for the VIN. When he did intrude, the officer simply reached directly for the unprotected space where the VIN was located to move the offending papers. We hold that this search was sufficiently unintrusive to be constitutionally permissible in light of the lack of a reasonable expectation of privacy in the VIN and the fact that the officers observed respondent commit two traffic violations.
475 U.S. at 118-19.
We also recognize that the decision in Class was based, in part, on the fact that federal law requires that the VIN be placed in the plain view of someone outside the vehicle. 745 U.S. at 111-12.
We conclude that in the absence of any evidence as to the standard policy regulating the opening of closed containers, the State’s contention that the search can be justified under the “community caretaking” or inventory search exception to the warrant requirement cannot be sustained under Florida v. Wells. We also conclude that the search here cannot be sustained under the exception to the warrant requirement established in New York v. Class. Finally, just as there is no murder scene exception to the warrant requirement, Mincey v. Arizona, 437 U.S. 385 (1978), we know of no exception permitting a general search of a wrecked car for evidence of ownership, at least when the identity of the driver is known.
The State’s contention that the search can be justified under the “plain view” doctrine is without merit. While the container here may have been in plain view from outside the vehicle, its contents clearly were not. See, e.g., State v. Risinger, 297 Ark. 405, 762 S.W.2d 787 (1989); see also Arizona v. Hicks, 480 U.S. 321 (1987).
Reversed and remanded.
Cooper and Rogers, JJ., agree.
It has been said that the warrant requirement has become so riddled with exceptions that it is basically unrecognizable. California v. Acevedo, 500 U.S. _, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991) (Scalia, J., concurring).
But see State v. Hill, 115 N.J. 169, 557 A.2d 322 (1989), Caplan v. State, 531 So.2d 88 (Fla. 1988), and State v. Teeter, 249 Kan. 548, 819 P.2d 651 (1991). (An inventory search in an attempt to discover ownership papers could not be upheld when the car had not been legally impounded.)
Paschall v. State, 523 N.E.2d 1359 (Ind. 1988), and People v. Russell, 174 Mich. App. 357, 435 N.W.2d 487 (1989), both offer some support for the State’s position. Those cases, however, were decided prior to the Supreme Court’s decision in Florida v. Wells, which we are clearly bound to follow. | [
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Melvin Mayfield, Judge.
In this unemployment compensation case the employer has appealed a decision of the Arkansas Board of Review holding that appellee Alfred Crenshaw was discharged from his last work for reasons other than misconduct connected with the work.
In response to the Drug-Free Workplace Act of 1988 (41 U.S.C. §§ 701-707 (1988)), the employer developed a Fitness for Work Policy concerning the use and possession of drugs and alcohol and the means by which to detect their use and possession by its employees. The policy stated:
AS A CONDITION OF YOUR EMPLOYMENT WITH RICELAND FOODS, INC., OR ONE OF ITS AFFILIATED GRAIN DRIERS, YOU MUST AGREE TO ABIDE BY THE FOLLOWING POLICY. ANY EMPLOYEE WHO DOES NOT AGREE TO ABIDE BY THE FOLLOWING POLICY SHOULD IMMEDIATELY NOTIFY THE COMPANY OF HIS INTENT TO TERMINATE HIS EMPLOYMENT.
Section 9 of the Company Policy provided:
All hourly and salaried employees will be required to submit to routine scheduled examinations and testing. Persons determined to be in violation of this policy or who refuse to submit to an examination will be removed from the work site and may be discharged.
On May 5, 1989, appellee Crenshaw consented to that policy by signing a form entitled “Drug-Free Certification” which stated:
I, Alfred Crenshaw, have read and understand Riceland Foods, Incorporated and its Affiliated Grain Driers “Fitness For Work” Policy, and do hereby agree to abide by this Policy as long as I remain employed by Riceland Foods, Incorporated or an Affiliated Grain Drier. Also, by signing below, I am stating that I have received a personal copy of this Policy.
I further certify that I am now drug-free, and will remain so for as long as I am employed by Riceland Foods, Incorporated or an Affiliated Grain Drier.
On July 6, 1989, Crenshaw was discharged when he refused to submit to the test.
The Appeal Tribunal reversed a decision of the Agency which denied benefits. The Board of Review affirmed the Appeal Tribunal. On appeal to this court the employer argues that the decision of the Board of Review is not supported by substantial evidence. Appellant argues Crenshaw was discharged because he willfully and knowingly disregarded a legitimate interest of his employer, and deliberately disregarded a standard of behavior which his employer had a right to expect of him. Appellant contends a deliberate violation of the employer’s rules is sufficient to constitute misconduct.
Ark. Code Ann. § ll-10-514(a)(l)(Supp. 1991) provides: “If so found by the director, an individual shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work.” As we explained in Exson v. Everett, Director, 9 Ark. App. 177, 656 S.W.2d 711 (1983):
In order for an employee’s action to constitute misconduct so as to disqualify him, the action must be a deliberate violation of the employer’s rules, an act of wanton or willful disregard of the employer’s best interests, or a disregard of the standard of behavior which the employer has a right to expect of his employees.
9 Ark. App. at 179.
Here the evidence shows that Crenshaw received a copy of the Fitness for Work Policy and signed a form agreeing to abide by that policy. He testified he had read the policy; that he signed the agreement and certification; that he understood Section 9 would apply to all employees; and that he never had any discussion with Mr. Holloway, the employer’s manager, about the policy. Crenshaw testified further that he never had any intention of ever taking “that test” and the only reason he signed “that thing” was because Mr. Holloway told him, if he didn’t sign it, it was automatic dismissal.
It is well established that the findings of fact by the Board of Review are deemed conclusive if they are supported by substantial evidence. Shipley Baking Co. v. Stiles, 11 Ark. App. 72, 703 S.W.2d 465 (1986). However, as we said in Shipley. “We are not at liberty to ignore our responsibility to determine whether the standard of review has been met.” 17 Ark. App. at 74.
After reviewing the evidence in the present case we cannot conclude the Board’s finding is supported by substantial evidence. The Board’s decision stated, and the appellees in this case admit, that there are no provisions concerning drug testing in the Drug-Free Workplace Act; but the Board held, and the appellees argue, that the appellant’s action in this case was encouraged by provisions in the Act which require a certification that contractors with the federal government must certify they have a drug-free workplace. Thus, the appellees argue that the Board was correct in considering the prohibitions of the Fourth Amendment of the United States Constitution in making its decision. Now the opinion of the Board concedes, and the appellees admit, that these constitutional protections would not apply if Crenshaw consented to the drug testing policy. See Alexander v. State, 255 Ark. 155, 499 S.W.2d 849 (1973). But it is argued that Crenshaw’s consent was given under duress and cannot be considered voluntary. It is contended that in determining whether consent was voluntary, the vulnerable state of the person consenting must be considered. As authority, appellees cite Schneckloth v. Bustamonte, 412 U.S. 218 (1973).We do not think that case is applicable because our supreme court held in Ellis v. First National Bank of Fordyce, 163 Ark. 471, 260 S.W. 714 (1924), that it is not duress to threaten to do that which a party has a legal right to do; and in Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982), the court said: “Generally, a contract of employment for an indefinite term is a ‘contract at will’ and may be terminated by either party.” 277 Ark. at 436-37. The court in Griffin also said that its cases have adhered to the principal that either party has an absolute right to terminate the relationship and concluded:
It is quite clear, therefore, that in the absence of some alteration of the basic employment relationship, an employee for an indefinite term is subject to dismissal at any time without cause.
277 Ark. at 437.
There is no evidence in the instant case that Crenshaw was employed for a definite term or that there was any alteration of the basic employment relationship.
Thus, we cannot agree there is substantial evidence to support the holding that Crenshaw’s agreement to be tested was obtained under duress.
Reversed and remanded for the Board to enter an order denying appellee Crenshaw’s claim for unemployment compensation.
Cooper and Jennings, JJ., agree. | [
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English, C. J.
I. The first question presented for decision in this case is, whether so much of the deposition of the ■appellee, William N. Jones, as relates to a transaction with, and statements of Nathan Bird, deceased, under whom appellants claim the lands in controversy, was competent evidence. The facts on which this question arises are substantially as follows:
Nathan Bird died intestate, in Lonoke county, eleventh August, 1873, leaving him surviving, Eliza, his wife, four adult children — Philip M., John H., Victoria and Alvorado E. (intermarried with John M. Barnett), and two minor children — Charles and Pauline. - There was no administration upon his estate, and no guardians appointed for the two minors. The widow and heirs of Nathan Bird were the complainants in the bill, Mrs. Bird suing in her own right, as widow, and the two minors suing by her, as their next friend.
William N. Jones, his sister, Bettie Simmons, and her husband, Eeuben Simmons, were made defendants.
The suit was commenced on the Chanceiy side of the Lonoke Circuit Court, second October, 1875; and the bill alleges that at a tax sale of delinquent lands, made by the collector of Pulaski county, on the twenty-ninth March, 1871, William N. Jones purchased the west half of the northeast quarter of section 36, T. 1, S. E. 9 W., 80 acres, for $10.13 ; and part of the west half of the southeast quarter, of the same section, 40 acres, for $8.62 (the lands then being in Pulaski, but afterwards, by change of boundary,, in Lonoke' county), and received a certificate of purchase for each tract. That on the eighteenth April, 1873, he assigned and delivered the two certificates of purchase to-Nathan Bird, for value received, and they continued in his possession to the time of his death.
That soon after the death of Bird, Jones, by deceitful* and fraudulent representations, induced Mrs. Bird to deliver the certificates to him, promising to return them toiler ; and so obtaining possession of them, he criminally erased the assignments written upon them, procured the-clerk of Pulaski county to execute to him tax deeds for the-lands, upon the certificates, and afterwards made a pretended conveyance of them to his sister, Mrs. Simmons.
In support of his answer to the bill, Jones was permitted to make the following statement, in substance and effect,, against the objection of complainants :
“Early in the spring of 1873, Nathan Bird was going to-Little Rock, and came by where I was living, and wanted to* know if I was going up to pay my taxes on the land in controversy and the land in section 25. I told’ him I was busy,, ' and if he would pay my taxes forme, I would send the money by him, and he told me he would pay them for me. I gave him the money, and on his coming back from Little Rock he gave me a tax receipt for the land in section 25, and said the other, being the land in controversy, had been redeemed. In a few days after this, he came to my house and asked me-to let him get my redemption money back ; he said I would have to get a lawyer, and as he was owing me money, I had as well get him as any one ; that he could pay me part of what he was owing me in that way. I gave him the certificates of purchase of the land in controversy, and he kept them about three months, and had gone up to Little Rock three times, as he said, and tried to get the. redemption money back for me on tbe land in controversy, and then came to see me twice, and said it would be impossible to get the redemption money back, unless I assigned the certificates of purchase to him, and I, not knowing any better, assigned them to him in June or July, 1873. I did not read the assignments at the time they were made, as I had full confidence in him. The assignments were made at the house of Nathan Bird. There were two certificates assigned, being for the land in controversy. Nathan Bird wrote the assignments. He was my uncle and I thought he would do an uncle’s part by me. There was no other consideration for the assignments of the certificates of purchase by me to Bird than the obtaining of the redemption money through said Bird. There was no money paid me by him or any one else for him at the time the assignments were made, neither was there any agreement expressed or implied for the payment of any money to me, or for any valuable consideration to pass from said Bird to me, directly or indirectly, for the assignment of said certificate of purchase, but said assignments were for the sole purpose of obtaining the redemption money for said lands, I believing at that time that the same had been redeemed, relying on the statements of Bird to that effect.”
Jones deposed to other statements as having been made by Nathan Bird to him, which have some bearing on the issues in the cause.
Section 2 of the Schedule to the Constitution of 1874, provides that:
“In civil actions no witness shall be excluded because he is a party to the suit, or interested in the issue to be tried,” etc.
This establishes a general rule and removes the common law incompentency of parties to suits, and persons interested in the issues to be tried. But in a proviso exceptions are made to the general rule so established in the following words :
‘‘ Provided That in actions by or against executors, administrators or guardians, in which judgment majr be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statement of the testator, intestate or ward, unless called to testtify thereto by the opposite party,” etc.
In this case none of the complainants sued as executor or administrator of Nathan Bird'. Mrs. Bird sued in her own right as his widow, and the other complainants, claiming under him as heirs, sued in their own rights. The widow and heirs are not within the exceptions made by the proviso of the section to the general rule established by it. ,
In Wassell v. Armstrong, ad. of Carroll, 35 Ark., 247, 274, the court adhered strictly to the exceptions made by the words of the proviso, in holding Wassell’s evidence competent.
"Whether the exceptions should be extended to other cases than those expressly named in the proviso, and which may seem to fall within its spirit, is a question for the Legislature, the subject being under its control.
See on this subject, 1 Wharton’s Law of Evidence, secs. 464-477 and notes; Bragg v. Clark, 50 Ala., 364.
Under the decision in Wassell’s case it was competent for Jones to make the statements above copied fjrom his deposition for what they were worth.
II- Upon the back of one of the certificates of purchase was the following assignment: n °
STATE OF ARKANSAS,
“Lonoke County.
“ I assign the within to Nathan Bird, for value received.
W. N. Jones.”
April 18, A. D., 1873.
Upon the back of the other certificate the assignment was as follows:
“I assign the within to Nathan Bird, for value received.
W. N. Jones.”
April 18, A. D., 1873.
The two certificates so assigned, were in possession of Nathan Bird when he died, and after his death were in custody of his widow, until Jones induced her to deliver them to him, and he erased the assignments and procured tax deeds to be issued to himself upon .the certificates.
The certificates were assignable in law, and the assignments, looking at them as instruments of conveyance, vested in Nathan Bird all the right and title to the lands acquired by Jones as purchaser at the tax sale, and after the time for redemption expired, the lands being unredeemed, Bird was entitled to have the tax deeds executed to him upon the certificates of purchase, and the assignments thereon, and on his death his widowand heirs succeeded to his title. Gantt’s Dig., sec. 5195, 5206.
Jones could not become re-invested of the title so transferred to Bird, by procuring Mrs. Bird to deliver the certifinates of purchase to him, and erasing the assignments. Strawn v. Norris et al, 21 Ark., 80; Neal v. Siegel, ad., 33 Ib., 63; Taliaferro, ex’r. v. Ralton, 34 Ib., 503. And having, by means of such erasures, caused the tax deeds to be issued to himself, equity would not permit him, or one, ■not an innocent purchaser, holding under him, to keep titles so procured.
III. Jones, however, denies, in his answer, that he assigned the certificates to Bird, for value, and alleges as affirmative matter, that the assignments were made to Bird, as his attorney, to enable him to collect the redemption money on a false representation by Bird that the lands had been redeemed.
The burthen of proving this defense was upon Jones, the- . written assignments purporting to have been made for value,. He proved it by his own deposition, after the voice of Bird! was silenced by death, and he could not be heard to speak for himself. The decree of the court below was against, complainants, and we have carefully examined all the evidence to see if it warranted the decree.
Jones deposed that he delivered the certificates to Bird! early in the spring of 1873, and that Bird, after keeping-them about three months, induced him to execute the assignments in June or July, of that year, by stating that it would be impossible for him to collect the redemption money unless he assigned the certificates to him. That at the time-he assigned the certificates there was no one in the room but-Bird and himself ; that Phillip M. Bird was sitting on. the door steps with his back towards the inside of the door.
In the material features of this statement, he is contradicted by three witnesses, as well as by the date of the-assignments.
Thomas Bannon testified that the assignments were made-by Jones, and the certificates delivered to Bird sometime in¡ April, 1873; that he was then in the employment of Bird, was present, and saw him pay money to Jones for the land, he had bought in Little Rock, &c.
Victoria Bird testified that the assignments were made-early in the spring of 187-3 ; that she was present, and saw Jones sign them; was not in the room all the time, and did. not see any money paid, &c.
Philip M. Bird testified that the assignments were made-by Jones on the eighteenth April, 1873, the day they bear-date ; that he saw Jones make them — that just as he walked into the room, Jones sat down to make .them.
That Jones induced Mrs. Bird to deliver him the certificates,. with the assignments upon them, after the death of Nathan, Bird, late in the year 1873, by disclaiming any interest in the lands, and promising to return them, (though he denies-this in his answer and deposition),'was proved by a number of witnesses; and no witness sustains his version of the matter.
That he erased the assignments, after so obtaining possession of the certificates, for the purpose of procuring the tax deeds in his own name, he, in effect, admits in his answer, but denies that the erasures were made feloniously, as charged in the bill, and submits that he had the right to make them. When directly asked, on cross-examination, if' .he erased the assignments, he declined to’answer the question, on the ground that he might commit himself criminally.
If he had told Mrs. Bird that he had made the assignments to her deceased husband to enable him to collect the-redemption money, as his attorney, and for no other purpose, and claimed the certificates and lands as belonging to him, it is not probable, from all the evidence, that she-would have delivered them to him; but, if she had, being-so advised, he would have stood much fairer upon the record now before us, than he does, and appeared more worthy of' credit.
He failed to establish, by any direct evidence, except his-own, which was contradicted, that the assignments were-made to Bird without value, and for the sole purpose alleged by him. He proved by other witnesses vague declarations made by Bird, in his lifetime, that lands bought by him (Jones), at tax sale had been redeemed ; but to overturn written evidence' of title, as the assignments were, which Bird died in possession of, and which were unfairly obtained from his widow, after his death, by Jones, and an attempt made to destroy them, would require clear, unimpeachable and convincing proof, whichhe failed to produce-
On this branch of the case, the decree was, in our judgment, erroneous.
IV. It is claimed for Mrs. Simmons that she was an ■innocent purchaser of the lands for value, &c.
It appears that by deed, bearing date first of February, 1875, Jones conveyed the two tracts of land in controversy, «and another tract of eighty acres, nearby, to his sister, Mrs. Simmons, reciting as the consideration the love and respect that he had for his sister, and also five dollars to him in «hand paid by her.
In her answer, Mrs. Simmons states that the deed was -executed to her “for a good consideration in law and -equity and again she states that it “was for a good and valuable consideration but she does not state what such “ valuable ” consideration was ; nor that she paid him any money, or other thing of value for the lands.
W. T. Farguson, a Justice of the Peace, who wrote the ■deed, at the request of Jones, and took his acknowledgment of its execution, testified, in substance, that to his best recollection Jones came to him and said he was going -•away, and did not know that he would ever return, and had a preference as to whom the land should go in case he did not, and asked him to write a deed of gift. That he suggested to Jones that he should execute a deed with regular consideration, and told him that if he ever came back they -could fix the matter up among themselves. To this he ■assented, and the deed- was written as it now appears. Witness further stated that the reason why he suggested to -Jones that he should execute a regular deed with consideration, was that he did not know how to write a deed of gift.
It appears that after Jones returned from Texas, he sold •to his brother, at $4 per acre, the tract of land embraced in >the deed to Mrs. Simmons, other than the two tracts in con troversy, gave him a bond for title, and received partial payments, &c.
It is probable, from all the circumstances in evidence,*., that the deed to Mrs. Simmons was simulated, or at most a deed of gift, and hence she was not a Iona fide purchaser for valuable consideration. 2 Story Eq., sec. 1502.
Moreover Philip M. Bird testified that he informed Mrs. Simmons, before the conveyance to her, that Jones had assigned the certificates to Nathan Bird, in his lifetime, and that his heirs were living on and claimed the lands.
Again, there was evidence conducing to prove that Nathan Bird was living on the lands as early as 1867, and at the time Jones purchased them at tax sale, and when he assigned the certificates to him, and until his death, and that after-wards his family continued in possession of the lands.
Furthermore, if Jones was guilty of forgery,- in erasing the assignments, and by that criminal act obtained the tax deeds, (as to which, upon the case before us, we give no-opinion), one holding under him could not be treated as an innocent purchaser. United States v. Samperyac et al, Hempstead, C. C. Rep. 118.
It is sufficient to say, upon the answer of Mrs. Simmons,, and all the features of the evidence, that her defense of innocent purchaser was not made out.
The decree must be reversed and the case remanded to-the court below, with instructions to render a decree in favor of complainants, divesting the title of defendants to the lands in controversy, and vesting it in complainants, as- . prayed by the bill, and for such further orders and proceedings as may be necessaiy and proper to close the case, in accordance with principles and practice in equity, and not. inconsistent with this opinion. | [
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English, C. J.
The Indictment charged in substance, “That J. B. Thompson and Paul E. Thompson, on the 10th day of April, 1880, in the county of Union, did, then •■and there being in the town of El Dorado, in said county, sell, and at divers other times did give one Jesse B. Moore, •a citizen of said county, intoxicating liquors, commonly ■called whisky, and also brandy, without a prescription therefor from a regular practicing physician, without any examination of the physical .condition of said Moore having been made or certified by any such physician, and without any such examination of said Moore having been made to ascertain the kind and quantity of such intoxicating liquors, necessary to the particular case and cases of the said Jesse B. Moore, and when the health of the said Moore in fact ■did not.require the same, contrary to the statute and against ■the peace,” etc.
Appellant J. B. Thompson demurred to the indictment ■on the grounds following :
First. The indictment fails to state facts sufficient to constitute a public offense.
Second. It sets up mo.re than one offense.
Third. - It charges defendant with both selling and giving «way whisky.
Fourth. It charges that he both sold and gave away both whisky and brandy, to one and the same person, at one and the same time.
Fifth. It fails to charge that defendant was not then and there a practicing physician, and not such as could prescribe either whisky or brand}»-.
Sixth. It alleges that the sale, etc., was made without any prescription from, or examination by, a practicing physician, but fails to charge that the same was made without a recommendation from such physician.
The court overruled the demurrer, the appellant was tried by a jury, found guilty, fined twenty-five dollars, and motion for a new trial and arrest in judgment overruled.
1. ■ The demurrer and motion in arrest both relate to the-sufficiency of the indictment.
The statute, under which appellant was indicted, makes-it a penal offense to sell, vend, or give away, in any manner, vinous or alcoholic liquors within three miles of the town of El Dorado, except for medical, chemical or sacramental purposes, upon the prescription or recommendation of a graduated physician or regular practitioner of medicine, who has taken the oath prescribed by the act. See-'Act of March 6, 1877, as amended by Act March 5, 1879. (Acts of 1877, p 26 ; Acts of 1879, p 22.)
It is an offense to sell, vend or give away, etc.
To charge that defendant did sell or give away would be ^ 0 J ^01' uncertainty. But the charge that he did sell and' gNe away, etc., is good. So, to charge that he sold whisky or brandy is bad"; but to charge that he sold whisky and brandy, etc., is good.
“If a statute makes it a crime to do this or that, mentioning several things disjunctively, all may, indeed, in general, be charged in a single count; but it must use the conjunctive “and” where ‘-‘or” occurs in the statute, else it will be defective as being uncertain. All are but one-offense, laid as committed in different ways. And proof of it in any one of the ways will sustain the allegation. On the other hand the indictment may equally well charge what-comes within a single clause of the statute, and still it-embraces the complete proportions of an offense.” 1 Bishop, Crim. Pro., 8 Ed., Sec. 585-592.
The act, as amended, does “ not prohibit the sale of vinous or alcoholic liquors, nor any alcoholic, stimulating, or intoxicating bitters of any kind or form., when sold for medical, chemical, ór sacramental purposes, upon a prescription or recommendation of a graduated physician, or- a regular practitioner of medicine,” etc., who has taken the oath prescribed by the act, etc.
To come within the exceptions of the statute, the sale must be for medical, chemical, or sacramental purposes, upon a “prescription ” or “recommendation,” etc. There is no substantial difference between the words prescription and recommendation, as used in the act, and either, or both, disjunctively, may be used.
But the prescription or recommendation may be given by a “graduated physician,” or ii regular practitioner of medicine.” *
The indictment negatives a prescription by a “regular practicing physician,” but does not negative-a prescription or recommendation by a “ graduated physician.”
All that is alleged in the indictment might be true, and yet appellant guilty of no offense; for he may have sold and given to Moore whislsyand brandy, upon the prescription and recommendation of a graduated physician, (though not a'regular practitioner of medicine,) who had taken the prescribed oath.
All that the indictment alleges about the examination and health of Moore is surplusage. If the sale is made upon ,i ... ... „ . . . ,. the prescription or recommendation or a physician, acting under oath, it is a justification. If the doctor makes false or fraudulent prescriptions, etc., he is answerable therefor.
The demurrer should have been sustained to the indictment, for the fault above indicated ; and for the same reason the judgment should have been arrested.
But little need be said of the evidence introduced on the trial. Appellant kept a drug store in El'Eorado, was a physician, and had taken and filed the oath prescribed by the statute. But he did not, it seems, make the sale of whisky and brandy, alleged in the indictment, for medical •or chemical purposes, upon his own prescription or recom•mendation as such physician, or the prescription, etc., of any other physician. The jury took it -to be an ordinary beverage sale, and the evidence seemed to warrant their verdict.
But the indictment being bad, the judgment must be reversed, and the cause remanded with instructions to the -court below to sustain the demurrer to the indictment. | [
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Eakin, J.
This cause was decided in the court below upon the ground that the mortgage had not been acknowledged for registration in accordance with the statute, and therefore gave no lien upon the lands subsequently purchased by Jackson and Wells.
The first question presented, regards the sufficiency of the certificate of acknowledgment. The words ‘£ and vurnoses.’’ jr j- 3 commonly used after the word “ consideration ” and as required by the statute, are omitted. * J
The question resolves itself into this: Have the words any distinctive significance, or does the use of one or ■either, substantially imply all that is contained in the other?
The legislature has seen fit to prescribe the use of both, from which we must infer that some substantial evidence was supposed to exist, and we think this is implied also in the ordinary significance of the words, as used in connection with legal instruments. In ordinary parlance the considerations which prompt an action, may not be easily distinguished from the purposes sought to be effected. But with regard to legal instruments and in the connection in which it is used in the statute, the word ‘ ‘ (consideration ’ 5 has a more limited and technical meaning, distinct from motives ■or purposes. It means something of value in the eye of the law; something in the way of price or compensation, which may be of value to the obligor or of detriment to the obligee. Whereas “purposes” evidently means the effect which the instrument is intended to have upon the rights of the contracting parties and the status of the subject matter.
To illustrate in case of a mortgage. The loan is the consideration; but the purpose of the mortgage is to create a certain and definite security for the repayment, either by bill in equity or sale under a power. The words have a distinctive meaning and are each substantial. The legislature having required the use of both, the Court did not err in holding the certificate to be insufficient.
The law may seem very technical and vigorous, yet it is the duty of the Court to give it effect until repealed or modified.
It has been well settled in this State by repeated decisions that a mortgage not duly recorded creates no lien against subsequent purchasers, even with notice. This ruling has been on the language of the statute, and has now become a rule of property which cannot be safely disturbed, save by the prospective operation of a statute.
There was no error therefore, in holding that the lien of the mortgage did not attach to the lands subsequently pur■chased by Jackson and Wells. As to them, the bill was perly dismissed ; but this does not dispose of the whole case. It remains to consider whether there be any remaining ■equities against the mortgagor. The original mortgage was not released by the subsequent guaranty given by the joint note of Burks and Snyder; they merely assume to pay it in ■consideration of further forbearance. The security was cumulative and the foreclosure of their guaranty by previous bill in chancery, without a sale and payment, did not amount to such satisfaction as would preclude a suit upon the original mortgage. Cumulative and collateral securities may be all pursued together, although the party call have . . but one satisfaction. Upon platting the lands and ing them with the several deeds exhibited and the descriptions in the pleadings, several mistakes are obvious. Taking the description however as probably intended, the lands are not all exhausted by the release of the mortgagee, or the conveyance of the equity of redemption, or the deed to Wells and Jackson. There remains, especially, the N. W. x of the N. W. ^ of Sec. 36, and the N. E. of the N. E. £ ■of Sec. 35, which seem yet subject to the mortgage. They are most probably of little value, and may therefore have been overlooked or released by consent. We cannot tell however, how that may be, and as these lands are still subject to the mortgage, it was error to dismiss the suit for want of equity. For this reason let the decree be reversed, save as to Wells and Jackson, and the cause remanded for further proceedings consistent with this opinion. | [
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Harrison, J.
This was a prosecution under the act of January 21st, 1875 to protect enclosures from trespasses.
The act declares “That if any person shall ride, range or hunt within the enclosed grounds of another, without the consent of the owner previously obtained, or shall pull down or break the fence, or leave open the gate of the farm, plantation or other enclosed grounds of another, the party so-offending shall be guilty of a misdemeanor, and upon convic-
tion thereof, before a Justice of Peace or other court having jurisdiction of such offense, shall be fined in any sum not less than ten dollars nor more than one hundred dollars, and in default of the payment of such fine, shall be imprisoned in the county jail not less than ten nor more than thirty days.”
The evidence showed that the fence the defendant was ■charged with breaking, was the partition fence between the lots of himself and Demarsh, the prosecuting witness, and the common property of them both.
Having the same right in the fence, and equal power and •control over it with Demarsh, he did not commit a trespass in knocking off the planks Demarsh had added to it; 2 Hill, on Torts, 277; Cooley on Torts, 327; Freem, on Coten. and Part, secs. 298, 299; Cubitt v. Patin, 8 Barn. & Cress, 257; Bennett v. Bullock, 35 Penn. St., 364.
Had he, however, pulled down and destroyed the fence, •such destruction of the common property would have been .a trespass, but we are not called upon to say whether he would have been liable to an indictment or prosecution therefor. .
As the fence was the common property of the defendant and Demarsh, the finding of the court that it was broken by the defendant without the consent of the owner was not sustained bjr the evidence.
The judgment is reversed and the cause is remanded with instructions to grant the defendant a new trial. | [
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John E. Jennings, Judge.
Sandra Reeder sustained a compensable injury to her right wrist, carpel tunnel syndrome, while employed by Rheem Manufacturing Company. She underwent a surgical procedure known as a carpal tunnel release. Her healing period was found to have ended by September 1, 1989. Dr. Kenneth Rosensweig, the orthopaedic surgeon chosen by appellee, estimated Reeder’s permanent anatomical impairment at six percent; Dr. Munir Zufari, a vascular surgeon, estimated it at fifteen percent.
Reeder’s claim for permanent partial disability was denied first by the administrative law judge and then by the full Commission on a two-one vote. The contention on appeal is that the Commission misinterpreted Ark. Code Ann. § ll-9-704(c) (Supp. 1991). We agree and reverse. The code section at issue provides:
(c) EVIDENCE AND CONSTRUCTION. (1) At the hearing the claimant and the employer may each present evidence in respect of the claim and may be represented by any person authorized in writing for such purpose. The evidence may include verified medical reports which shall be accorded such weight as may be warranted from all the evidence of the case. Any determi nation of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.
(2) When deciding any issue, administrative law judges and the commission shall determine, on the basis of the record as a whole, whether the party having the burden of proof on the issue has established it by a preponderance of the evidence.
(3) Administrative law judges, the commission, and any reviewing courts shall construe the provisions of this chapter liberally, in accordance with the chapter’s remedial purposes.
(4) In determining whether a party has met the burden of proof on an issue, administrative law judges and the commission shall weigh the evidence impartially and without giving the benefit of the doubt to any party.
(Emphasis added).
The issue in the case at bar is the meaning of the italicized sentence. The Commission’s opinion states:
[ T]he purpose of § 704(c)(1) is to promote objectivity and encourage consistency in physicians’ assessment of whether permanent impairment exists, and if so, the extent of that impairment. While the claimant contends that subjective complaints are acceptable criteria in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, we note as respondent points out that those guides had been published prior to the legislative enactment of § ll-9-704(c)(4). Had the General Assembly desired to make those guides the basis for an award of permanent impairment they could have done so. However, the General Assembly chose not to make the guides the basis for an award of permanent impairment.
The Commission then found that the fifteen percent permanent anatomical disability rating given by Dr. Zufari and the six percent anatomical rating given by Dr. Rosensweig were entitled to no consideration because the ratings did not comply with the statute’s requirement that they be supported by “objective and measurable physical findings.” The Commission saw no ambiguity in the statute and applied the general rule that words are given their ordinary meaning and statutes are applied as written. Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986). We do not agree that the statute is so clear. There is no legislative history for us to turn to and neither party contends that this language appears in any other state’s workers’ compensation law.
It is apparent that the word “determination” as used in the statute might refer either to a determination of impairment made by a doctor or to one made by the Commission. The Commission took the view that unless the doctor’s opinion as to permanent impairment was expressly based on objective and measurable physical findings, it was unworthy of consideration. We think that the word “determination” as used in the statute refers to the Commission’s determination of physical impairment. The statute prohibits such a determination unless the record contains supporting “objective and measurable physical or mental findings.” Our view is closer to the position taken by the dissenting commissioner: “The statute precludes an award for permanent disability only when it would be based solely on subjective findings.”
It is a familiar rule that workers’ compensation statutes are to be liberally construed in accordance with the law’s remedial purposes. Farm Air Corp. v. Reader, 11 Ark. App. 72, 666 S.W.2d 717 (1984). This rule of construction has now been codified. Ark. Code Ann. § ll-9-704(c) (3). In interpreting an act it is permissible to examine its title. Morely v. Capital Transp. Co., 217 Ark. 583, 232 S.W.2d 641 (1950); Roscoe v. Water & Sewer Improvement Dist. No. 1, 216 Ark. 109, 224 S.W.2d 356 (1949). Parts of statutes relating to the same subject matter must be read in the light of each other. State v. Hannah, 131 Ark. 129, 198 S.W. 881 (1917); see also Lybrand v. Wafford, 174 Ark. 298, 296 S.W. 729 (1927).
The title of Ark. Code Ann. § 1 l-9-704(c), “EVIDENCE AND CONSTRUCTION”, obviously refers to functions of the Commission. Doctors are not charged with the duties of taking evidence or construing statutes. Similarly, when the verb “to determine” is used elsewhere in subsection (c), it refers to determinations made by the Commission. Ark. Code Ann. §11- 9-704(c)(2) and (4).
Clearly, the Commission is not bound by medical opinion, Mosley v. McGehee Sch. Dist., 36 Ark. App. 11, 816 S.W.2d 891 (1991), although it may not arbitrarily disregard the testimony of any witness. Wade v. Mr. C. Cavenaugh’s, 25 Ark. App. 237, 756 S.W.2d 923 (1988). It is also entitled to examine the basis for a doctor’s opinion, like that of any other expert, in deciding the weight to which that opinion is entitled. See Ishie v. Kelly, 302 Ark. 112, 788 S.W.2d 225 (1990). The statute at issue, however, does not require that the Commission automatically reject a doctor’s opinion as to permanent impairment merely because the doctor has used American Medical Association guides as a basis for opinion or because the doctor himself describes the bases for his opinion as “subjective.”
Dr. Rosensweig originally estimated that Reeder had a six percent permanent partial disability to the body as a whole as a result of the carpal tunnel syndrome. On deposition he testified:
Compression of the median nerve can be documented by neurologic testing. I believe that it has been shown if you do a surgical release of the volar carpal ligament to decompress the tunnel to alleviate the pressure on the nerve, this gets rid of the numbness and tingling, but does not address the swelling of the tendons that initiated the problem. I do not believe surgical release gives 100% recovery ordinarily. I believe the reasons why 100% recovery is not obtained may include irreversible injury to the median nerve, patient’s response to the surgery, motivation to recover from an injury, and perhaps other factors. I have found individuals may obtain good results from carpal tunnel releases but then go back to a similar type of repetitive action job and again experience pain and swelling.
After receiving a letter from appellee’s counsel, Rosensweig wrote:
Therefore, per your request, I should modify the impairment rating to zero impairment of the right upper extremity secondary to carpal tunnel syndrome, based on the lack of objective impairment, i.e., loss of range of motion, loss of body parts, etc. . . .
You have referred to an Arkansas law and provision as far as guidelines in providing this information. It would be greatly appreciated if you could forward me copies of the rules and regulations in providing impairment ratings that you are looking for so I can be more efficient in the future.
Dr. Rosensweig performed a Phalen’s test, described in his testimony as “where you bend the wrist down in a position where it can kink the median nerve. If you hold it down there for a minute and it recreates the pain and numbness, then that would be a positive Phalen’s. If you hold the hand down for a period of time and it doesn’t create any recurrence of symptoms, then it is a negative Phalen’s.” He also measured Reeder’s grip strength by asking the claimant to grab his fingers as opposed to using a “grip dynamometer.” He described her grip strength as “adequate but less than what I would expect.”
Dr. Rosensweig described these tests as “subjective” and the Commission treated that description as conclusive. But it is the function of the Commission and the courts to decide what is an objective finding within the meaning of the law. Certainly there is a subjective component to both the Phalen’s test and the “grip strength” test, but both are clinically observable and capable of measurement. They are similar in nature to a range of motion examination, which we have recently held is sufficiently objective to satisfy the statute. Taco Bell v. Finley, 38 Ark. App. 11, 826 S.W.2d 313 (1992). Results of tests similar to the Phalen’s test (Fabere and Laseque’s) have been recognized as constituting “objective findings”. Keck v. Bowen, 651 F. Supp. 1160 (W.D. Pa. 1987).
Our holding in the case at bar is only that Ark. Code Ann. § 1 l-9-704(c)(l) does not require that either the opinion of Dr. Zufari or Dr. Rosensweig be disregarded by the Commission and that, under the facts of this case, the statute does not bar an award for permanent disability. We reverse and remand this case to the Commission for further proceedings consistent with this opinion.
Reversed and remanded. | [
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Elizabeth W. Danielson, Judge.
On November 25,1988, appellant Lonnie Jewell shot Jerry Smith and James Dickson, killing Smith and wounding Dickson. Appellant contended at trial that he shot the victims in self-defense. He was tried by a jury convicted of manslaughter and attempted first degree murder. He was sentenced to six years in the Arkansas Department of Correction and fined $ 10,000 on the manslaughter conviction and $15,000 on the attempted first degree murder conviction. Appellant appeals from his manslaughter conviction. We find no error and affirm.
The testimony reflects that on November 25, 1988, Smith and Dickson came uninvited to appellant’s home. Several other people who were friends of appellant were also present. There was evidence of longstanding problems between appellant and Smith, including the fact that Smith had some years ago shot and killed appellant’s cousin and had twice pulled a gun on appellant. Appellant testified that when Smith and Dickson began to discuss the people they had killed while in prison, appellant decided that it was time for them to leave. Appellant contended that when he came out of his house with his gun, he got into a struggle with Dickson. Appellant testified that as they were struggling, he saw Smith getting up from a lawn chair and pointing a gun at him. Appellant shot Smith in the head, killing him. Dickson turned and attempted to run away. Appellant fired a shot in his direction and injured him.
Appellant first contends that the trial court erred in refusing to grant a mistrial when the prosecutor referred to an extrajudicial statement made by appellant which the trial court had ruled to be inadmissible. When police officers first arrived to investigate the shooting, appellant stated “I shot the son-of-a-bitch.” The trial court ruled that the statement made by the appellant to the officers when they arrived was inadmissible. During cross-examination of appellant, the prosecutor asked, “You told Paul Jewell that you shot the son-of-a-bitch, and shot his friend that came up with him, did you not?” Appellant moved for a mistrial, which was denied. The jury was admonished to disregard the question. During closing argument, the prosecutor stated: “We didn’t hear what . . . Mr. Lonnie Jewell said, but he said something.” Again, appellant moved for a mistrial, which was denied, and the jury was admonished to disregard the statement. Appellant contends these statements by the prosecution clearly prejudiced him and that the court’s failure to grant a mistrial is reversible error.
A mistrial is to be granted only where any possible prejudice cannot be removed by an admonition to the jury. Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). The trial court is granted a wide latitude of discretion in granting and denying a motion for mistrial, and the trial court’s decision will not be reversed absent an abuse of that discretion or manifest prejudice to the complaining party. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992), citing Brown v. State, 259 Ark. 464, 534 S.W.2d 207 (1976). Since appellant admitted he shot and killed Smith, the only possible objectionable part of the prosecutor’s question is the reference to appellant calling Smith a son-of-a-bitch. There was testimony by many witnesses, including appellant, establishing a strong enmity between appellant and Smith. Considering this testimony, we do not think appellant was prejudiced by an indication that he used profanity in describing the man who had twice pulled a gun on him. Additionally, the jury was admonished to disregard the statements. Any error resulting from the prosecutor’s improper reference to appellant’s statement was harmless error. The trial court did not abuse its discretion in denying the motion for mistrial.
Appellant’s second contention is that the trial court erred in refusing to give appellant’s requested jury instruction that the degree of force used in self-defense is presumed reasonable when a person is in his own home. Instead, the trial court submitted to the jury AMCI 4105. Appellant argues that when Ark. Code Ann. § 5-2-614 and § 5-2-620 are read together, it is clear that the legislature intended that a different standard should apply in determining whether a belief or response is reasonable when a person is in his home.
In Clark v. State, 15 Ark. App. 393, 695 S.W.2d 396 (1985), the court found pertinent to this issue the commentary that follows AMCI 4105 and 4106. That comment provides:
The Committee believes that the presumption set forth in Ark.Stat Ann. §41-507.1 [now codified at Ark. Code Ann. § 5-2-620] in favor of a person defending himself in his home has no effect. If evidence is introduced to trigger the presumption, that same evidence supports the existence of the defense. Under Ark.Stat. Ann. § 41-110(1) (a) and (3) [Ark. Code Ann. § 5-1-111] and § 41-115(c) [Ark. Code Ann. §5-1-102] the prosecution has the burden to prove as an element of its case the negation of any defense beyond a reasonable doubt. A presumption running in the defendant’s favor which may be defeated by clear and convincing evidence by the state, but which also supports a defense which ultimately must be overcome by the state by evidence beyond a reasonable doubt, is of no effect.
The court in Clark found that “[i]nasmuch as the jury was instructed pursuant to AMCI 4105 which required the State to overcome appellant’s reliance on self-defense of his person by a standard of beyond a reasonable doubt, we cannot say the trial court erred in refusing to instruct the jury upon Ark. Stat. Ann. § 41-507.1 [Ark. Code Ann. § 5-2-620].” Likewise, we find that the trial court did not err in instructing the jury pursuant to AMCI 4105 and refusing appellant’s proffered instruction.
Appellant’s final contention is that the trial court erred in failing to properly define “reasonable belief.” The trial court instructed the jury that “[reasonably believes or reasonable belief means the belief that an ordinary, prudent man would form under the circumstances in question and not one recklessly or negligently formed,” which is the definition given by AMCI 4105. Appellant argues that this definition would allow the jury to find him guilty even if it believed facts that would require a finding of not guilty, since a finding that appellant acted negligently or recklessly would not support a conviction for first degree or second degree murder or manslaughter.
Appellant concedes that for him to prevail on this point, this court would have to overrule its previous decision in Kendrick v. State, 6 Ark. App. 427, 644 S.W.2d 297 (1982). When faced with an argument similar to appellant’s, the court in Kendrick stated that “ [t] o accept appellant’s instruction and interpretation of § 41-514 [Ark. Code Ann. § 5-2-614] would render meaningless the requirement of reasonableness found in the basic code justification provisions. This is obviously the reason the committee responsible for our criminal jury instructions deemed it unnecessary to draft one based upon § 41-514 [Ark. Code Ann. § 5-2-614].” We decline to overrule our holding in Kendrick.
Affirmed.
Cooper and Mayfield, JJ., dissent. | [
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English, C. J.
I. It is submitted by counsel for appellant that the record does not affirmatively show that the indictment was returned into court by the grand jury,
The term of the Circuit Court of Phillips county, at which appellant, Robert M. Fitzpatrick, was indicted for murder in the first degree, commenced, and the grand jury was organized, seventeenth of May, 1880.
On the twentieth of May the following entry appeal’s :
Now, on this day, comes the grand jury into open court, and having answered to their names, returned, through their foreman, eight bills of indictment, which, being numbered 11, 12, 13, 14, 15, 16, 17 and 18, were ordered filed and process to issue immediately.”
Then follows, in the transcript, the indictment against Robert M. Fitzpatrick, charging, in substance, that on the tenth of February, 1880, in the county of Phillips, he murdered John Tool by shooting him with a pistol; which is endorsed 16, and marked filed twentieth of May, 1880.
’ When the accused is not in custody, it is not proper for ■the clerk to disclose upon the record that an indictment has been found against him by naming him in an entry ( Gantt’s Dig., secs. 1798,1800). The indictment in this case is sufficiently identified by its number and date of filing, as one of ■the eight shown, by the above entry, to have been returned into court the twentieth of May. Shropshire v. State, 12 Ark., 190; Green v. State, 19 Ib., 186.
II. Appellant was tried on plea of not guilty. The jury found him guilty of murder in the second degree, and fixed his punishment at fifteen years imprisonment in the peniten'tiary ; a new trial was refused, bill of exceptions taken, he was sentenced in accordance with the verdict, and prayed ■an appeal, which was allowed by one of the judges of "this court.
The 1st, 2nd and 3rd grounds of the motion for a new trial, were that the verdict was contrary to. law, contrary to evidence, and against both.
That John Tool was shot with a pistol on the night of the •tenth of February, 1880, between 10 and 11 o’clock, in the ■saloon of Mose Tinney, at Helena, during a mardi gras fete, and died soon after receiving the mortal wound, the evidence -leaves in no doubt.
There was also evidence to warrant the jury in finding that he was shot by appellant.
The saloon fronted east, the counter was on the right; "there was an entrance at the back, or west end of the house, as well as in front, and a beer garden in the rear. The front •entrance was screened.
A. King, witness for the State, testified, among other things, that he was sitting on a box in the saloon looking at Tool, about eight feet from him ; that Tool was sitting with his back to the shelving — squatting down with his left ■side towards the east end of the house and towards witness. That appellant came up to the east end of the counter (from the front entrance) in a stooping position and presented his pistol towards Tool, who, motioning his hands towards him, said, “don’t shoot, Bob” (appellant was familiarly known by the name of Bob), and about that time the pistol fired, and a second after Tool remarked, “Eve caught it,” or words to that effect. . He was a bar-tender.
Further on, the same witness said appellant fired as soon as he got to the east end of the counter ; and that was the time Tool motioned him not to shoot, and that was the shot-that killed Tool. Again, witness said he saw appellant’s-face when he shot, and he knew he killed Tool.
Tom Robinson testified that he knew the parties ; was in the saloon, near the ice-box, when Tool was killed, and knew appellant killed him.
D. C. Reed, a policeman, testified that on the night of the-difficulty, he, the city marshal, and others, had appellant in custody, and he made a statement in his presence ; said he killed Tool, and did not know what he did it for. It appears-that the others did not hear this statement.
The doctors proved that the pistol ball entered the left-side of Tool and ranged down.
There were but three persous [appellant, his brother, Thomas Fitzpatrick and Frank Tujague], who used fire arms in the fight, and Tool must have been killed by one of them. It could not have been Thomas Fitzpatrick, for he used a double barrel shot gun, charged with small shot, and Tool was killed with a pistol ball. Tujague entered the saloon at the west end, and fired his pistol toward the east.
T. D. Ramage, who was present, but did not see who shot Tool, testified that if he was sitting from four to six feet from the east end of the counter, between the counter and shelving, with his face to the south, and shot in the left side, it was not possible for Tujague to have killed him. He was a witness for defense.
Alonzo Fitzpatrick, brother of and witness for appellant (who was present, and armed, but did not engage in the fight), testified that if Tool was sitting in the position as described by other witnesses, it was not possible for him to have been shot by Tujague, from the west, etc.
No doubt, from the evidence, Tool’s left side was to the east, and appellant, who was manifestly in a rage, fired his pistol repeatedly and wildly, from the east towards the west.
The above feature of the evidence is stated in response to a suggestion of counsel for appellant, that it was not satisfactorily proved that he shot Tool. The jury found, by their verdict, that he did, and there was evidence to sustain the finding.
As to the grade of homicide, the evidence was conflicting. If the jury believed the witnesses for the State (and none of them were impeached), they properly found appellant guilty of murder. On the version given of the whole quarrel and' fight between the Fitzpatricks and Tujague, (in which Tool was shot), by some of the witnesses for the ■defence, the jury might have found that the homicide was of a lower grade than murder. We will notice other features of the evidence not indicated above, in considering the instructions.
III. After the evidence was closed, the court read to the jury certain sections of the Digest relating to the grades of homicide, self defense, etc., which are referred to in the bill of exceptions ; and then gave twelve [misnumbered fourteen] instructions, moved by the attorney for the State, appellant objecting to each and all of them.
For appellant sixteen instructions were moved, the court •refused the 9th, modified'the 6th and 10th, and gave all of the others as asked.
The evidence as set out in the bill of exceptions is long and confused. A brief statement of leading facts, however, will-be sufficient to make remarks upon the instructions-understood.
It was a festival occasion; the parties and eye witnesses'were at a saloon, and probably all drinking. The Fitzpatricks commenced the quarrel. About 10 o’clock at night,. Tujague, who was in costume, and at the back door of the-saloon, attempted to detain a woman who wanted to leave ; and Thomas Fitzpatrick, hearing the altercation between him and the woman, came up and struck .him. Appellant also-approached, and there being a pistol on a shelf, Tujagueattempted to get it, but was prevented by Tool. While he-was struggling with Tool for the pistol, appellant caught-hold of him and bit his aim. Released by the interference-of a by-stander, he ran out of the saloon in front, (making-utterances which will be noticed hereafter), and went off,, appellant pursuing him for some distance. Appellant-returned to the saloon, and asked Tool for his pistol, which it seems, was under the counter ; Tool at first refused to give-it to him, but was finally prevailed on to let him have it and he and his brothers went to Thomas Fitzpatrick’s gun shop, not far off. It is evident that they knew from what Tujague said, when he left the saloon, that he intended to-return to it. At the shop, Thomas Fitzpatrick charged a-breech-loading gun with small shot. On being asked why he did not put buck-shot in the gun instead of the small shot, “ he said they would do, he wanted to burn him,”' meaning, no doubt,'Tujague. The three returned to the-saloon, appellant armed with his pistol, and his brother Thomas, with his shot-gun.
In the saloon, several witnesses stated, appellant walked' backward and forward, watching the back door- — -cocked his pistol several times — every time the back door was opened— said if Tujague came back there would be trouble ; if he>came in at the back door he would kill him.
After a while, a witness for the defense states, Thomas took a drink, and said, “ let us go, not three brothers pitch on one man and Alonzo put his hand on appellant’s shoulder, and said, “come on Bob; and let’s go and they went to the front door, but did not go away.
Meanwhile, Tujague went to his saloon, took off his costume, dressed in citizen’s suit, put on his overcoat, and placed a Smith & Wesson’s pistol in each of his pockets. In about half an hour, (more or less, the witnesses differing as to time), from the time he had left Tinney’s saloon, he returned to it, and entered at the west door.
There was a front screen, and if, as stated by some of the witnesses, Thomas Fitzpatrick was on a front step, and appellant on the side waik, when Tujague entered the saloon, they were not perhaps in his view.
He says that he stopped about midway of the saloon, and remarked that he was ready to defend himself; others testified that he said he was “ready to fight any son of a bitch in the house.” Was asked to drink and declined. Had his hands in his overcoat pockets. It is probable that the Fitzpatrick’s hearing him in the saloon, returned, passed the screen, Thomas in advance, with shot gun in hand, and that Tujague fired at him, and ran back out of the salooii into the beer garden in the rear. Some of the witnesses say that while retreating, he fired a second, and others, a third time. He testified that he fired but once, and in this he is corroborated by some of the witnesses for the state, and it is probably true, for he was arrested by the sheriff, and his pistols taken from him and examined shortly after the fight, and but one chamber was empty, as testified by the sheriff and others present.
It is probable from all the evidence, that six shots were fired, first shot by Tujague at Thomas Fitzpatrick, who fired one barrel of his shot gun while Tujague was retreat ing, and four pistol shots by appellant, who probably had his pistol in readiness when he .entered the saloon and passed the screen. It seems that Tujague, and perhaps appellant, fired three shots after he was out of the saloon.. Which one of appellant’s four shots was fatal to Tool, does not distinctty appear.
Taking all the instructions given by the. court together, it appeal's to have been fairly left to the jury to decide upon the conflicting and confused testimony, whether appellant was guilty of murder, manslaughter, or was acting in self-defense. Of course the jury were advised, that though the fatal shot fell on Tool, with whom appellant had been friendly, yet the offense was the same, if any, as if'Tujague had been killed.
(a) The first and second instructions given for the state, were taken .from the opinion of this court in McAdam v. State, 25 Ark., 408-9, and were approved as correct expressions of law in Sweeny v. State, 35 Ark., 585.
But one of them, the second, related to murder in the' first degree, and it follows :
“If the jury believe from the evidence that the defendant, at the time he fired the pistol, intended to kill the deceased, and did kill him without any provocation, they will find him guilty of murder in the first degree. ”
This instruction was no doubt given in view of the testimony of witnesses King and Reed, the former having stated that when appellant presented his pistol towards Tool, he raised his hands and implored him not to shoót; and the latter, that appéllant said he had killed Tool, and he did not know what he did it for. The same instruction was given in Harris v. State, 36 Ark., 127, in which the accused was found guilty of murder in the first degree, and it was held that the instruction was inapplicable to the facts, and improperly given, because all the evidence showed that the killing was upon provocation.
It is not probable, from all the evidence in this case, that appellant purposely killed Tool, and the above is the only instruction given for the State submitting to the jury the question whether such might have been his intention, and the jury by their verdict, in effect, found it was not.
The counsel for appellant submits that the jury may have been misjed by the giving ©f any instruction on the subject of murder in the first degree ; to which it may be replied, first, that the verdict shows that they were misled; and second, that the 2d, 3d, 4th, 5th and instructions given for appellant, framed and moved by the ••same learned counsel, related to murder in the first degree, ••and the court gave them in the strong clear language in which they were drafted, favorable as they were to appelilant. The seventh of them was, that “The absence of a motive to take life should be considered by the jury in determining whether it was done willfully, deliberately, and with malice aforethought, and if it appears to the jury from the testimony, that the defendant had no motive to kill the deceased (Tool), and was on friendly terms with him at the time, and had had no difficulty with him, these facts are proper to he .considered in determining the animus of the ■defendant.”
(5) Counsel for.appellant criticises the fourth and sixth Instructions given for the State, making no objection here to the third and fifth.
The fourth was : — “If the jury believe from the evidence that previous to the killing of deceased, defendant, Thomas Fitzpatrick and witness, Frank Tujague, had a difficulty, •and after such difficulty went off, armed themselves with deadly weapons, and returned to renew the contest, and in that contest deceased was accidentally killed by defendant, it would be either murder or manslaughter — murder if sufficient time had elapsed for passion to cool, and reason to be restored, and manslaughter if the contest was renewed in the heat of passion, and not in a spirit of revenge.”
The sixth was : — “If the jury believe from the evidence-that defendant, Thomas Fitzpatrick and witnesss Tujague, had an altercation in the saloon; that Tujague left the-saloon stating that he was going off to arm himself, and-would return and have it out, and that defendant and his-brother Thomas knew, or believed, that Tujague would return, and they went off and armed themselves with deadly weapons, returned to the place of rencounter to meet Tujague, and in the difficulty following such preparation deceased was killed by defendant, it would be murder or-manslaughter in the defendant, and the jury will so find,, whether the killing was accidental or not.”
It is submitted that both of these instructions were erro- . neous on two grounds; first, that they deprived appellant-of the benefit of that- part of the evidence which tended to-prove that he abandoned the contest, and started on his-way home ; and second, that they made his guilt turn solely upon the intent with which he may have returned to the-saloon, regardless of the facts attending the difficulty whiclh ensued, etc.
If these two instructions were all that were given, they might be subject to the objections stated, but they were not all. They were given upon one view of the conflicting evidence, and others were given upon another view, and among them, the sixteenth, moved for appellant, which was as follows :
“If the jury believe, from the evidence, that defendant' and Thomas Fitzpatrick withdrew from the saloon, intending to abandon the contest, and did so to avoid further difficulty, and that Tujague renewed the difficulty with a deadly weapon, in a fierce and dangerous manner, after defendant, had retired in good faith, Tujague became the assailant, and if the defendant had killed him, believing it necessary to save his own life, or his person from a great bodily injury, actually impending at the time, his act would have been justifiable homicide,”
It is also submitted that the sixth instruction is subject to-the further objection of being abstract. That there was no-proof “that Tujague left fhe saloon, stating that he was-going off to arm himself, and would return and have it out,” and none that appellant went off and armed himself, and returned to meet Tujague.
Alonzo Fitzpatrick, brother of appellant, testified that Tujague said, when leaving the saloon : “I’ve got no show here ; fix yourselves. I’m going away and will come back fixed.”
It is manifest, from the testimony of this witness, and others, that the Fitzpatricks understood, from what Tujague said on leaving the saloon, that he intended to arm himself and return to it. It may not be literally true that appellant “went off and armed himself,” for it appears that his pistol was in the saloon, under the counter, when Tujague left; that after pursuing him for some distance, he returned to the saloon, got his pistol, and went to the shop, where the brothers prepared themselves with arms, and returned to the saloon, expecting Tujague to come back armed.
The facts stated hypothetically in the sixth instruction, . . J may not have been literally in evidence, but they were substantially. The instruction assumes no facts to be true, or to have been proved, but declared what the law was the facts stated hypothetically, if the jury believed, from the evidence, that such were the facts; a mode of instructing a jury allowable under the present Constitution, which, in effect, prohibits the judges from summing up the evidence, as under the common law practice.
(c) It is submitted that the eighth and tenth instructions for the State were too broad and misleading ; that a person, ■when attacked by another who manifestly intends to take his life, or do him great bodily harm, is not obliged to retreat, but may pursue his adversary, until he has secured himself from all danger; and if he kill him in so doing, it is justifiable self-defense.
The instructions so complained of follow :
“Eighth — If the jury believe, from the evidence, that the fight between defendant, Thomas Fitzpatrick, and witness, Frank Tujague, was mutual, or entered into by the parties willingly, and in that affray deceased was accidentally shot by defendant, you will find the defendant guilty of murder, or manslaughter, according to the circumstances in the case, and in that case, it would make no difference who struck the first blow, or fired the first shot.”
; “Tenth — If the jury believe, from the evidence, that the ' defendant could have, at any time, from the beginning of the first difficulty to the ending, when deceased was killed, reasonably withdrawn from or avoided the difficulty, without immediate danger to himself, and failed to do so, he could not justify the killing by self-defense : — A man cannot set up self-defense, until he has done everything reasonable in his power to prevent, abandon and retreat from the difficulty.”
The eighth instruction was given in view of the first quarrel between the parties, referred to in other instructions of the series. No doubt, where parties quarrel, separate, arm themselves, and again meet and enter mutually into a fight, with deadly weapons, and one kills the other, or one of them kills a third person, in attempting to kill his adversary, it may be murder, or manslaughter, according to the time intervening between the first and second difficulties, and opportunity for cooling.
And such is the substance and effect of the eighth instruction, taken in connection with others given, and in view of' evidence as to the first quarrel and the final fight.
The counsel for appellant objects particularly to the word “retreat.” as used in the last clause of the tenth instruction.
The court had read to the jury the 1285th section of the-Digest, which defines self-defense, in which the words., “that the slayer had really, and in good faith, endeavored to decline any further contest, before the mortal blow or injury was given,” are used, and perhaps the tenth instruction was needless. But it is evident, from the language employed in the whole instruction, that the court did not mean to charge the jury that a man was obliged to retreat when attacked, etc.
On the contrary, the court charged the jury by the thirteenth instruction moved for appellant that, “A man has the right to repel force by force, in defense of his own person, against one who manifestly intends, by violence or surprise, to take his life, and may pursue his adversary, until, out of danger, if the attack is of -such character as to render the attempt to escape from danger hazardous to life oi' personal safety.” — And in the fifteenth instruction given for the appellant that: — “If danger to defendant was actual, urgent and pressing, he was not bound to flee, but was justified in repelling or preventing the impending danger, by the use of such means as to a prudent and courageous-person appeared necessary and reasonable, under the circumstances.”
It is impossible to read the evidence without seeing that-either Tujague, or the appellant and his brother, Thomas, might have avoided the final 6ght, and that they prepared themselves for it, and returned to the saloon where it occurred. True, there is some evidence that appellant, after waiting and watching for Tujague, making hostile demonstrations and threats, was persuaded by his brothers to leave the saloon before Tujague returned, and went front, but did not go away, as he might have done. On the contrary, after Tujague had come back to the saloon, and was boasting of more courage than the sequel showed him to have, Thomas Fitzpatrick and appellant, shot-gun and pistol in hand, returned into the saloon from the front, and passed the screen, when Tujague fired, and fled.
(d) The eleventh instruction for the state, and which counsel for appellant criticises, was that: — “If the jury believe, from the evidence, that Tujague, after he fired the first shot, retreated, and in good faith abandoned the conflict, and defendant pursued him, firing at him, and the shot or shots from defendant’s pistol took effect upon deceased, and killed him, the defendant would be guilty of murder, or manslaughter.”
In several of the instructions given, the Court left it to the to determine, upon the evidence, whether the killing of Tool was murder or manslaughter, having read to the jury the Statute definitions of those offenses. In other instructions the question of self defense was submitted to the jury, the court having also read to them the Statute defining self defense in ordinary cases of killing. In considering anyone instruction given, it is proper to look at it in connection with others of a series given, and also to look at the different phases of the evidence, in view of which the instructions were framed. It is not just to the court below to isolate an instruction and pass upon it, orto criticise its phraseology, as if an independent proposition.
It is probable that Tujague fired the first shot when Thomas Fitzpatrick passed the soreen and came in view with ¡shot gun in hand. He, no doubt, on firing, retreated and "that rapidly. Itis perhaps not literally true that he retreated in good faith, abandoning the conflict, but more probable that he fled to escape impending danger. Thomas Fitzpatrick, who was doubtless cooler than appellant, appears to have fired but once at his retreating adversary, while appellant fired repeatedly and wildly as above shown.
His firing, under such circumstances, was certainly not in necessary self defense, for he was in no danger at the time. Had there been no previous quarrel and he had fired at the retreating Tujague on the provocation of his having fired the ■first shot, and killed him, or, by misadventure, Tool, it would not have been murder. But the jury doubtless believed that he fired repeatedly and recklessly at and after Tujague in a •spirit of revenge engendered by the previous quarrel.
( 6 ) It is obj ected that the twelfth instruction ( numbered 14 in the transcript) is vague, indefinite and erroneous. That it consolidates the first quarrel and the after fight with arms, ¡assumes them to be one and ignores the interval during which Tujague went to his saloon, armed himself and returned, etc. It is true that this instruction, when considered alone, is subject to the criticism that it confuses the two difficulities, but when considered in connection with others of the series given for the State, and yet others given for the defense, in which the first quarrel and after fight are ■distinctly kept in view, its want of verbal accuracy could hardly have been misleading. It was perhaps framed, though inaptly, -with the view of expressing the proposition that if the jury believed, from the evidence, that the defendant and his brother Thomas brought on the fight with Tujague, the fact that he fired the first shot would not justify defendant in taking his life, or the life of Tool by accident, but it would be otherwise', if defendant had, in good faith, abandoned any further combat after the first difficulty.
Had there been no screen in front and had the Fitzpatricks been in view when Tujague entered the saloon, and had he fired on them before they made any armed movement toward him, the case would have been different.
Construing the instructions given for the State fairly, and as a whole charge, in connection with such as were given for the defense, there appears to be no error of law prejudicial to appellant in them and nothing that could probably have misled the jury. Thompson on Charging the Jury, p. 173-4.
IV. The sixth instruction moved for appellant was in these words : “ Unless the jury find from the testimony the specific intent to take life, that it was formed before hand and carried out with deliberation, they must acquit the defendant of murder.”
To which the court added after the final word “ murder,”' the w;ords “in the first degree.’’'’
The sixth was of the series of instructions, from two to» seven, both included, asked by appellant, relating to murder in the first degree. The court gave, as moved, all but the sixth, and gave it with the additional words above indicated, which made it harmonize with the others. The specific intent to take life and deliberation are features of murder in the first degree, and these expressions in the sixth instruction made the additional words appropriate. Bivens v. State, 11 Ark., 455; Sweeney v. State, 35 Ak., 585.
Had the court merely refused the instruction as moved, appellant would have had no just ground of complaint. Stanton v. State, 13 Ark., 324. But as modified by the court, it was a correct expression of law, and the court had the right to give it in that form,' and appellant had the right to except to the refusal of the court to give it in the form moved.
Y. The ninth instruction moved foi appellant as fol lows : “If the jury believe from the evidence, that the killing of Tool, if done by defendant, was not committed with deliberate malice, but that it was done without malice, and in a sudden heat of passion, the killing would be manslaughter only, and if they further believe, from the facts and circumstances of the case, that it was not an intentional or voluntary act on the part of the defendant, then the offense would he involuntary manslaughter only.”
The whole of this instruction is marked refused in the margin, and the bill of exceptions states that the defendant excepted to the ruling of the court in refusing to give so much of it as relates to voluntary manslaughter; and the fifth ground of the motion for a new trial is, that the court erred in refusing to grant so much of the ninth instruction asked by the defendant as related to voluntary manslaughter.
The first clause of the instruction is not an accurate definition of voluntary manslaughter, which is the unlawful killing of a human being without malice express or implied, and without deliberation, upon a sudden heat of passion, apparently sufficient to make the passion irresistible. Gantt’s Dig., secs. 1264-5. This definition the court gave in charge to the jury from the Statute.
But the last clause of the instruction, which was an attempt to reduce the homicide to involuntary manslaughter, was inappropriate, and the court for that reason might, as it did, refuse the whole instruction. Stanton v. State, sup.
YI. The form in which the court gave the tenth instruction moved for appellant follows :
“If the jury believe from the evidence, that Tujague, by making a felonious assault upon defendant and his brother Thomas, under circumstances calculated to excite the fears of a reasonable person, that he intended to kill, or that defendant and his brother Thomas were in immediate and pressing danger of receiving great bodily injury', it was law ful for the defendant to employ such means of defense as were reasonably necessary to prevent or overcome the impending danger, provided he really acted under the influence of such fears and not in a spirit of revenge.”
And this instruction, so given, was followed by the 11th and 12th, moved for appellant, and given as asked, thus:
“Whether the danger to defendant was real or apparent, if he had reasonable cause as a reasonably prudent man to believe, in order to save his own life, or prevent Tujague from inflicting great bodily injury upon him, that it was necessary to shoot, he was justified in doing so as long as the danger appeared urgent and pressing.”
“If the jury believe from the evidence that the defendant was justified, under the circumstances, in firing on Tujague, and during the firing, and while intending or attempting to shoot Tujague, by accident or misadventure, shot deceased, against whom he had no evil design, he is not guilty of the crime chai’ged.”
These instructions were as favorable to appellant as the strongest testimony on his side warranted.
It is objected that the court refused to give a part ©f the tenth, but the instruction was not thereby rendered less favorable to appellant, or its force and value as a legal proposition, in his behalf impaired.
The part of the instruction omitted, was a hypothetical view of the conduct of Tujague before he fired his pistol, some of the expressions of which the court, perhaps, deemed more strongly put than warranted by the evidence.
Upon the whole, the instructions given on both sides fairly submitted the case to the jury, on the different phases of the evidence, and there was no substantial error of law to the prejudice of appellant.
YII. ■ Finally, we have carefully considered all the features of the case in response to the earnest argument of ■the learned and zealous counsel for appellant, and though he has sincerely insisted that his client should have been .acquitted on the evidence, the jury, the rightful tribunal to weigh the facts, were of a different opinion, and calm ■reflection may convince him, when the partial view of the .advocate has faded out, that the jury were right.
Affirmed.
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OPINION.
Harrison, J.
The day upon which the liquor was sold was not a matter essential to the description of the offense. It.could as well be committed on one day as another. In the case of Marre v. The State, 36 Ark., 222, which was-a prosecution for Sabbath-breaking, it was decided that the State, in proving the offense, was not confined to any particular Sabbath within the period of limitation. It wasr therefore, not necessary to prove that the sale was on the day named in the indictment, and the instruction was, therefore, correct, and the verdict sustained by the evidence.
Affirmed. | [
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English, C. J.
Appellant, George W. Griffin, was indicted in the Circuit Court of Conway county, for malfeasance in office, the indictment charging in substance; “ That said George W. Griffin, on the tenth day of April, 1881, in the county aforesaid, being then the sheriff of said county, and having, the lawful custody of one Bud Burns, who had been convicted in the Circuit Court within and for said county, at the March term, 1881, of said court, of the crime of Sabbath breaking, and adjudged to pay aline of ten dollars, with cost of prosecution, and which said fine and cost on said tenth day of April, 1881, remained unpaid, unlawfully did voluntarily permit the said Bud Burns to go at large, contrary to the Statute,” etc.
Appellant demurred to the indictment and the demurrer was overruled, and after trial and conviction, he moved in arrest of judgment, and for a new trial, and both motions were overruled.
I. The indictment was drawn under section 1487 of Gantt’s Digest, which provides that: “If any officer or his under officer or deputy, having the lawful custody of any prisoner, for any cause whatever, shall voluntarily suffer or permit, or conuive at the escape of such prisoner from his custody, or permit him to go at large, he shall upon conviction, be punished in the same manner, as if convicted of aiding or assisting such prisoner to escape.” See for punishment, lb., Section 1481.
The objections taken to the indictment in the demurrer were:
First. That it did not state by what authority Burns was-in custody of defendant.
Second. That it did not state that Burns was in custody of defendant by virtue of the conviction mentioned in the indictment, and
Third. That it did not set forth facts sufficient to constitute a public offense.
It is not directly alleged that Burns was in custody of appellant, as sheriff, under and by virtue of the judgment of 440 SUPREME COURT OF ARKANSAS, Griffin v. The Stale. conviction for Sabbath-breaking, but such was doubtless the intention of the indictment, and it substantially advised him of the nature of the offense charged against him. II. The bill of exceptions shows that, upon the trial, the State was permitted, against the objection of appellant, to read in evidence the indictment against Bud Burns for Sabbath-breaking, and the record entiy of the trial, and judgment thereon as follows :■ On this day comes the State by her attorney, and the defendant, Bud Burns, in his own proper person, and by his attorney, and enters his plea of not guilty, and both parties announcing themselves ready for trial, come the following twelve jurors of the regular panel, to try the issue joined, to-wit: W. F. Stover, etc., who were examined on oath, found qualified and were selected and accepted, impanneled and sworn,- according to law, etc., and the evidence being adduced, the instructions of the Court given, and the arguments of counsel had, the jury retired to consider of their verdict, and afterwards returned into Court here the following verdict: ‘ We, the jury, find the defendant guilty'- as charged, and assess his punishment at a fine of ten dollars,’ etc. It is therefore considered and ordered that the plaintiff do have and recover of and from the defendant, the sum of ten dollars, together with all the costs in this behalf expended; and it is further ordered, that unless said fine and costs are immediately paid, the sheriff is ordered to hire out the said defendant, according to law, for any sum not to exceed one day for every seventy-five cents of said fine and costs.” ‘ ‘ In the Conway Circuit Court Tuesday, March 29, 1881. 1881.
The objection to the introduction of the indictment, and the record entry of the trial and judgment, was general, and we see no good reason why they should not have been admitted.
A clerk, skilled in entries, would have added the words by the Court,” after the word “ considered,” in the judgment entry. But the omission must be regarded as matter •of form, and not of substance. Ware et al. v. Pennington et al., 15 Ark., 226.
So much of the judgment as ordered the sheriff to hire out Burns for the payment of the finé and costs, if they were not immediately paid, at not exceeeding one day for each seventy-five cents thereof, followed the last clause of Section IV, of the Act of March. 10, 1877. Acts of 1877, p. 74.
The Act of March 22, 1881, (Acts of 1881, p. 148,) which provides that if any-person, convicted of a misdemeanor in the Circuit Court, etc., shall fail to pay immediately, or secure to be paid within thirty days, to the satisfaction of the sheriff, etc., the fine and costs, such person shall be committed to the county jail, and by the jailor delivered to the contractor, who shall keep and work him at the rate of twenty-five cents per day, etc., though passed before the judgment against Burns was entered, manifestly applies to counties in which the County Courts have contracted for the keeping and working of persons committed for fines and costs.
It must be presumed that no such contract had been made in Conway County, at the time Burns was sentenced, as the Court, in rendering the judgment against him, followed the Act of March 10, 1877, instead of the Act of March 22, 1881.
sheriff guilty o f large.0 11 * If Burns was present in Court at the trial, as recited ini judgment entry, it was the duty of appellant, as sheriff, retain him in custody, and if the fine and costs were not, immediately paid, to hire him out, as directed by the judgmept; and if he voluntarily permitted him to go at large, he-was guilty of an offense, under the statute above copied.
III. It was, in substance, proved on the trial, that Burns-did not pay the fine and costs, that appellant, as sheriff, did not take him into custody, or restrain him of his liberty, or hire him out for the fine and costs; that he resided in Conway County, and went at large, attending to his business, etc.
Appellant offered to prove by Burns, who was examined as a witness, that he was not present at Court, at the time-he was tried under the indictment for Sabbath-breaking-, but was eleven miles away from Lewisburg, where the Court was held : which evidence the Court excluded, and this ruling of the Court, which was excepted to by apjiellant, was made ground of the motion for a new trial.
The statute provides that if the indictment is for a misdemeanor, the trial may be had in the absence of defendant, {Gantt’s Digest, Sec. 1888,) and no doubt the Court has the discretion to permit the trial in his absence ; but as, a practice, it is not to be commended.
The judgment entry recites that Burns was present in person at the trial, and the record was prima facie evidence that fact; but appellant not being a party to the record, was noj- estopped there!)}'- from disproving the fact so-recited. Snyder v. Greathouse et al., 16 Ark., 72 : Bone as Admr. v. Torry, Ib. 83; Chipman v. Fambo, Ib. 291; Thomas et al. v. Hinkle, 35 Ib. 453.
The State introduced no evidence but the judgment, to prove that Burns was in custody of appellant, as sheriff. If appellant had been permitted to prove, as he offered to do, that Burns was not in fact present at the trial, it would have followed that the entry of the judgment, and the order-that he be hired out for the fine and costs, if not immediately paid, would not have placed him in custody of appellant ; and the State would have been obliged to go furtherr. and prove that Burns was in custody of appellant, under-execution issued upon the judgment, or surrender by bail, and afterwards voluntarily permitted him to go at large.. Redman v. The State, 28 Ind., 213.
For the error of the Court, in excluding the evidence-offered by appellant, as above shown, the judgment must be-reversed, and the cause remanded to the Court below fora new trial. | [
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English, C. J.
On the fourth of August, 1877, John W. Arnold,- a merchant of West Point, White county, obtained a judgment against J. H. Dyer, a farmer of that-vicinity, before a Justice of the Peace of Eed Eiver township, in said county, for $335.53, debt, damages, etc. On the fourteenth of December, of the same year, an execution was issued -upon the judgment to James L. Brewer,. Constable of the township, and by him “levied on about-five acres of cotton in the patch, and two hundred pounds in the pen; fifteen acres of corn in the field, and eight or ten bushels in the crib ; one ton of millet; two mare mules ; wagon and harness ; one buggy ; sixteen head of cattle ; seventy head of hogs; and all farming tools ¿ household and kitchen furniture,” as the property of defendant in the execution, and advertised them for sale.
It appears that Arnold, the plaintiff in the execution, was a dealer in general merchandise, and during the years 1874 and 1875 sold to Dyer, the defendant in the execution, dry goods, groceries and family supplies. ' Partial payments were made in money and cotton, and a note given by Dyer for balance, and the judgment was for principal and interest of the note.
On the seventeenth of December, 1877, Mrs. Judie E. Dyer, wife of J. H. Dyer, filed a bill on the Chancery side of the Circuit Court of White county against John W. Arnold, plaintiff in the execution, and James L. Brewer, the Constable, claiming the property levied on, and praying that the sale thereof be enjoined.
An interlocutory injunction was granted, and on the final hearing upon bill, answer and depositions, it was dissolved. The bill dismissed, Mrs. Dyer appealed, and obtained here an order for an -ancillary injunction to stay the sale of the property until the cause could be heard and determined on her appeal.
Mrs. Dyer alleges in her bill that on the twenty-eighth of October, 1876, .she owned, as separate property, and scheduled in the office of the Clerk of the Circuit Court of White county: “ Two dark bay mules ; one wagon ; one set of harness ; fourteen head of cattle ; fifty head of hogs ; four turning plows; five shovel plows ; five cotton hoes; three feather beds : three mattresses ; four bedsteads ; one bureau ; one clock; one sewing machine ,- one dining table ; one cooking stove; one safe; six chairs; one trunk, and bed clothing,” and exhibits a certified copy of her schedule.
She also alleges that all of the property levied on, ex- copt the buggy, is her property, ‘ ‘ and the same as scheduled by her, including the issues and proceeds arising therefrom, and produced with the same upon her account, and as her sole and separate property.”
She further alleges that the crop of cotton and corn levied on was grown upon the homestead of herself and her husband in White county.
When or how she acquired the property scheduled by her, the bill does not allege, nor is anything more alleged than as above of the homestead.
The defense was that the crop was produced by the husband on land owned by him; that the scheduled property belonged to him when the schedule was filed; that he had contracted the debt in judgment, and others, on faith of the property, representing it to be his, and it was afterwards scheduled by the wife to-shield it from and defraud his creditors.
AS TO THE HOMESTEAD CROP.
I. The cotton, corn and millet were not in the wife’s schedule. She claims that the crop of cotton and corn were exempt, because grown upon the homestead of herself and husband, and produced with her means.
B. K. Rogers deposed that about the first of July, 1873, he sold to J. H. Dyer the southwest quarter of section 18, T. 6, N. R. 5, W. for $1000, and made to him a deed for the land ; that Dyer did not represent to him that the money paid to him for the land was his wife’s, but bought as any other individual; that he took possession of the land early in the yóar 1874, and had occupied it ever since.
Mrs. Dyer deposed that she was married to J. H. Dyer after she was of age, in Lauderdale county, Tennessee ; he had nothing; after her marriage she received from her mother, who had been her guardian, about $1,400 left her by her grand-mother; she and her husband continued to live, with her mother, and he engaged in farming for' over six years after their marriage, and she gave him money to spend when she wanted anything, and to loan out. He did not loan out all the money, but would loan out two, or three, or four hundred dollars at a time. They moved from Tennessee to Jackson county, in this State, (bringing $920 with them in money), in February, 1871, where he engaged in farming for two years before they moved to White county, and “made a right smart of money.” They brought about $2000 to White county. Mr. Dyer brought $1800 of it to White county to ■ buy land, and bought the place they lived on, (though he did not spend all of it for the land), and had the title of it made to himself, but talked of having it made to her.
It is manifest, from the evidence, that the homestead was the property of the husband, and not of the wife, or their joint property. There was no evidence to prove that the cotton and corn grown upon the homestead, gathered and ungathered, were the property of the wife. They were, no doubt, as the Court below found, the property of the husband. The Constable levied on about five acres of cotton and fifteen acres of corn in the field of the homestead. The levy was made on the fourteenth of December, and after the crops were matured.
Whether an ungathered crop is the subject of execution, or if it is, whether the owner of a homestead may claim an unsevered crop produced by him upon it as exempt from execution, the homestead being exempt, are questions not presented in this case. The husband, the owner of the homestead and the crop, is not claiming an exemption. It is the wife who filed the bill.
II. The Court below found, from the evidence, but part of which is stated above, that the property levied on (that scheduled by the wife, as well as the cotton and corn pro duced on the homestead) was the property of the husband, and not of the wife ; and notwithstanding 'the expressions of the wife, and her witnesses, in their depositions, that the property belonged to her, the facts stated by them, and other witnesses, warranted the Court in finding against her claims.
The court found that the money left the wife by her grand-mother, came to the possession of the husband after their marriage in Tennessee, and thereby become his; and if all the scheduled property was bought with that identical money, which is not probable fx'om the evidence, it belonged to him when scheduled. Most of it was purchased after they moved to this State.
No statute of Tennessee barring the husband’s common law right to the personal property and money of the wife on reducing them to possession was in evidence. See Tatum v. Hines, 15 Ark., 180. Property afterwards pui-chased by him with the money, or its fruits, would also be his. Ferguson et al, v. Moore and wife, 19 Ib., 379.
It is probable, from the evidence, that most of the scheduled property was purchased after Dyer and wife came to this State, and before the adoptioix of the present Constitution, (1st November, 1874), axxd when the Constitution of 1868 was in force.
Under Section 6, Article 12, of the Constitution of 1868, Mrs. Dyer could acquire and hold personal propexty, but was n°k protected agaixxst the debts of her'husband scheduled. Humphries v. Harrison, 30 Ark., 79; Berlin v. Cantrell, 33 Ib., 611.
If the, property in question was purchased with her money, and for her, as she insists, she should have scheduled it before her husband contracted debts on faith of it, aixd it was afterwards too late. Berlin v. Cantrell, Supra; Howell v. Howell, Ad., 19 Ark., 344; Beeman and wife v. Cowser et al, 22 Ib , 432.
We have not overlooked the fact that this was a bill to enjoin the sale of ordinary personal property under execution, but there was no objection to the bill on that ground in the Court below, and the cause was heard on the merits, and the bill dismissed. We need not, therefore, consider the question of jurisdiction. See Sanders v. Sanders et al, 20 Ark., 610, modifying Lovette and wife v. Longmire, 14 Ib., 339.
Affirmed. | [
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Harrison, J.
The Statute of non-claim was suspended ■during the war. Williamson et al v. McCrary, ad., 33 Ark., 470. The claim of Joues was, therefore, presented in due time; yet if it had not been, the allowance of it could not be called in question in a collateral proceeding. Carter, ad., v. Engles, 35 Ark., 205; Montgomery and wife v. Johnson, 31 Ark., 74, and cases there cited.
Under our system of administration there can be no necessity or occasion for the revival of allowances. Gantt’s Dig., secs. 142-147; Rose v. Thompson, 36 Ark., 254.
And as payment of claims can be enforced only as ■directed by the Statute, and after the court has found, upon •■a settlement of the administrator, that there is money in his hands for the payment of them, and has ordered their payment in full, or pro rata, as it shall suffice, the allowances cannot be barred by the Statute of Limitations. Gantt’s Dig., secs. 142-147.
The lands and tenements of which an intestate has died, siezed, are, by the Statutes, made assets in the hands of his administrator for the payment of his debts, and in case of a deficiency of the personal estate, may, under an order of the court, be sold for that purpose. But this charge upon the real estate is not a perpetual one, which may be enforced by the administrator after any lapse of time. The heirs should not be forever deterred from making improvements on the property, or prevented from selling it, by the possibility that it may be sold for the debts of tV estate.
The power of the administrator must be exercised in a reasonable time, and will be lost by gross laches, or unreasonable delay. Rorer on Jud. Sales, secs, 254-257; Vansyckle v. Richardson, 13 Ill., 171; McCoy v. Morrow, 18 Ill., 519; Heirs of Langworthy v. Baker, 23 Ill., 484; Smith v. Dalton, 16 Maine, 308 ; Mooers v. White, 6 John. Ch., 360; Ricarcl v. Williams, 7 Wheat., 59; Ex parte Allen, 15; Mass., 58; Wellman v. Lawrence, Ib., 326.
What is such reasonable time must be determined by the court, in its sound discretion, under the circumstances of the case. Mooers v. White, supra.
This proceeding, to subject the lots to the payment of the debts of the estate, was not begun until eighteen years after the first grant of administration, and twelve after the appointment of the petitioner as administrator, de bonis non, and no attempt had been made by him for ten years to enforce the lien against airy part of the real estate. It does not appear that any cause existed for this failure sooner to proceed against the real estate, and we are of the opinion that a delay for such a length of time as ten years, when there was no hinderance or proper cause therefor, was unreasonable, and that the lien on the real estate was thereby lost.
Another objection to the order is apparent upon its face. It included the tracts of land as well as the town lots, when the petition only prayed for the sale of the latter.
The judgment of the court below is reversed, and the cause remanded to it, with • instructions to allow the petitioner to amend his petition, if so advised, and for further proceedings. | [
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Harrison, J.
Whatever interest in the notes remained in Martin & Hillsman after they delivered them back to-Street, if any, upon their bankruptcy passed to and vested in their-assignee, Edmonds. Rev. Stat. U. S., secs. 5044, 5047; Geisreiter et al v. Sevier, 33 Ark., 522; Pearce v. Foreman, 29 Ark., 563.
They were, therefore, neither necessary nor proper parties.
A misjoinder of defendants is not a ground of demurrer,, and if Edmonds was not a proper party, his name might, have been stricken out of the complaint upon motion. Oliphint v. Mansfield & Co. et al, 36 Ark., 191.
As to the equity of the complaint, there can be no question ; and the ground of the demurrer, that the complaint did not state facts sufficient to constitute a cause of action, has not been insisted upon here.
A lien for the payment of the notes was reserved in the deed from the plaintiff to Woodward, and the appellant, in part consideration of his purchase of the lots from Woodward, agreed and undertook to pay them, and it was so expressly stipulated in Woodward’s deed to him.
That part of the debt, when collected, was by the decree directed to be paid over to Edmonds, np way concerned the appellant.
But though the plaintiff’s right to a foreclosure of the lien is clear, it was an error in the Court below, in its decree,, to direct a sale of the property for cash, as it virtually did, by not directing the sale to be on credit, and fixing the •credit to be given.
The Statute says that sales of real property by order of Court, shall be on a credit of not less than three nor more than six months, or in installments equivalent to not more than four months’ credit on the whole. Sec, 4708 Gantt’s Digest; Worsham and wife v. Freeman, 34 Ark., 35; Williams et al v. Ewing & Fanning, 31 Ark., 292; Welch v. Hicks, 27 Ark., 292.
Eor this error the decree must be reversed and the cause remanded to the Court below, with directions to render a decree for a foreclosure of the lien, and for a sale of the property on a credit, as required by the Statute. | [
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Robert J. Gladwin, Judge.
Appellant James Vincent Val-etutti appeals from the Ouachita County Circuit Court’s order filed on June 2, 2005, in which it reduced his monthly alimony obligation to his ex-wife, appellee Kathleen Susan Valetutti. On appeal to this court, appellant argues that the trial court abused its discretion in ordering that alimony continue indefinitely at the reduced but still substantial rate despite proof that appellee no longer needs the alimony. We affirm.
Appellant and appellee were married in 1988, and their only child, a daughter, was born in 1991. Appellee has twin sons from a previous marriage who were minors at the time of the parties’ divorce, and appellant has a grown son. In 1997, appellant ac cepted a job that paid $98,000 per year, and so the parties moved from Maryland to Camden, Arkansas. Soon after they arrived in Arkansas, appellant had an affair with a coworker, and appellee sought a divorce, which was granted on August 4, 1998. Appellee was awarded custody of the parties’ daughter, and they returned to Maryland with the court’s permission. In the divorce decree, appellant was ordered to pay $1500 per month in alimony and $200 per week in child support. The decree specifically provided that “alimony shall continue until the death of the payee, payor, the remarriage of the payee, other statutory limitations or further orders of this court.” In an opinion delivered on October 13, 1999, we affirmed the trial court’s award of alimony and child support and its division of the parties’ property. Valetutti v. Valetutti, CA99-21, slip op. at 1 (Ark. App. Oct. 13, 1999).
On December 9, 2004, appellant filed a petition for termination or modification of alimony. At the hearing on appellant’s petition, appellee testified that she purchased her home in Elkton, Maryland, in January 2005 for $118,000 and that her monthly mortgage payment is $1300. She testified that her daughter and her twenty-year-old son currently live with her. She stated that David Miller is her boyfriend of two years but not her fiancé. According to appellee, she has no plans to marry Miller and further explained that “for now I am done with marriage.” She testified that she is employed at ATK Alliant Techsystems, formerly Thiokol Corporation and Cordant Technologies. From 1999 to 2002, she was an administrative assistant/production secretary. She stated that her income for 1999, when she had her two sons as dependents, was $15,813; in 2000, still claiming her two sons as dependents, she earned $18,491; she earned $23,894 in 2001; and in 2002, she earned $25,230. Between 2003 and 2004, she became an accountant for the company after taking night classes at Cecil County Community College. Appellee stated that her company reimbursed her for the cost of the classes. In 2003, appellee earned $27,344, and in 2004, she made $34,290. She stated that her contributions to her 401K plan between 1999 and 2004 totaled approximately $10,000. In 2003, she borrowed approximately $12,000 to pay for home improvements and to pay off some of her credit-card debt. She identified appellant’s exhibit listing eleven credit cards, but she stated that she no longer had or used seven of the cards. Appellee testified that, according to her affidavit of financial means, she had $32,000 in a 401K account, $2000 in an IRA account, $800 in a checking account, and $400 in a savings account. Also according to her affidavit of financial means, appel- lee’s expenses totaled $3989 per month. Appellee stated that before her twin boys turned eighteen years old, their biological father paid her $90 per week in child support plus a lump sum of $2000 to pay the arrearage. Appellee stated that, without appellant’s alimony payments, she would be unable to pay all of her expenses listed on the affidavit. She stated that her lifestyle had not changed since the parties’ divorce and that she was not living more extravagantly or spending more money. Appellee conceded that she currently has two fewer dependents and that her income has doubled since 1998.
Appellant testified that he lives in an apartment in Camden, Arkansas, and that, while he would like to live in a house, he is not currently “emotionally equipped” for that kind of acquisition. He stated that he is the director of contracts for Aerojet General Corporation. He stated that in December 2002 he married Jan Valetutti but had since divorced. Jan paid $80,000 as a down payment on the house they bought for $198,000. He stated that his monthly mortgage payment was $1100, which he paid for two and one-half years, but that he received none of the equity when it was sold following the divorce from Jan. Appellant owed $19,000 on a motorcycle he bought in 2003 and had paid $2200 for its enclosed trailer. He stated that his gun collection was worth $8000; his jewelry was worth $1000; and an ATV four wheeler was worth $2500. He stated that he had approximately $3000 in his checking account and $29,000 in a savings account, $15,000 of which came from a settlement following his involvement in a motor vehicle accident in 2004. Appellant earned $124,392.90 in 2001; $117,753.73 in 2002; $112,416 plus $21,336 in 2003 (he had two W-2 forms because Aerojet purchased Atlantic Research Corporation); and $139,431.46 in 2004 plus $1050 from teaching as an adjunct professor at SAU-Tech for one semester. He had contributed $90,000 to his 401K plan since his divorce from appellee, and it was currently valued at approximately $162,000. Appellant stated that after deductions his monthly income is $2536 and that his monthly expenses total $2070.76. Appellant stated that now that two of appellee’s children are grown, appellee no longer has an excuse for not getting an education and that the parties’ fourteen-year-old daughter could be left without supervision. Appellant also testified that there were online classes that appellee could take. He also pointed out that appellee has no health problems or disabilities.
In a modified decree entered on June 2, 2005, the Ouachita County Circuit Court reduced appellant’s monthly alimony obligation to $950 and increased his weekly child-support obligation to $274. The trial court made the following findings:
The evidence confirms that since the divorce of the parties, plaintiff and the minor child have moved to Cecil County, Maryland, and that plaintiff has remained with the same employer, ATK Elkton, LLC, and presently has an annual wage of approximately $32,000.00. At the time of the divorce, plaintiff was earning less than $20,000.00, and her future employment was in doubt. Plaintiff has purchased a comfortable home in Elkton, Maryland, and it would appear that her financial situation has improved considerably since the date of the divorce.
The Court further finds that at the time of the divorce, plaintiff had custody of two minor children from a previous marriage who have both since become adults. As a result, there is no doubt but that the financial needs of the plaintiff have been significantly reduced.
The Court further finds that defendant has continued to work for the same employer since the divorce and has experienced a considerable increase in wages, as has the plaintiff. The Court finds that the defendant continues to have the ability to pay alimony and his obligation should not be terminated.
A trial judge’s decision whether to award alimony is a matter that lies within his or her sound discretion and will not be reversed on appeal absent an abuse of that discretion. Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002). The purpose of alimony is to rectify economic imbalance in the earning power and the standard of living of the parties to a divorce in light of the particular facts of each case. Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988). 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. Id. 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. Anderson v. Anderson, 60 Ark. App. 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 Ark. App. 88, 964 S.W.2d 411 (1998).
On appeal to this court, appellant specifically argues that:
The judge abused its discretion when ordering alimony to continue indefinitely at a lower, but quite substantial rate — despite overwhelming evidence that after James Valetutti paying almost a quarter million dollars in spousal plus child support in the seven years since their ten-year marriage ended, Ms. Valetutti no longer requires alimony, because her needs are substantially decreased, while her prosperity continues to steadily increase, due to: 1) having only one minor child, instead of three, now at home; 2) more education; 3) higher pay from better employment; 4) greater employment benefits; 5) fruits of her fourth marriage’s Divorce Decree; 6) greater personal income; 7) better earnings potential; with, 8) considerably less debt; and 9) better credit.
Appellant further argues that it is no longer reasonable or equitable for appellee to receive spousal support that she does not need. He argues that circumstances have changed significantly since their 1998 divorce and the 1999 appeal. Appellant argues that “Ms. Valetutti, with help, has laudably eclipsed her previous circumstances to defy the Arkansas Court of Appeals’ 1999 prediction that ‘. . . her opportunities for advancement in education and income were limited.’ ” He lists the following “fruits” of the parties’ divorce decree that went to appellee: (1) over $51,000 from his 401K; (2) 50% of his pension, with 100% retention of her pension; (3) over $4000 in her relocation expenses paid by him; (4) all the marital home’s furniture and half its equity; (5) his former $7000 gun collection that she sold; (6) over $2000 in income tax refunds plus $2500 from cashed bonds; (7) debt-free end to her fourth marriage with all credit-card debts going to him; (8) medical and dental insurance he provides for their daughter; and (9) $1500 per month alimony (over $108,000 at fifing), plus $800 per month child support. Appellant also argues that his “reliable and lucrative” alimony payments may have deterred appellee’s remarriage since she has not remained unmarried for very many consecutive years. Appellant maintains that “equity in this case cries for a cessation of alimony.” He argues that “[a]fimony under these circumstances is practically enslavement, a form of involuntary servitude the Court forces Mr. Valetutti to perform on behalf of his former spouse.” Finally, appellant contends that the alimony in this case has become almost penal in nature.
While we sympathize somewhat with appellant’s position, upon de novo review, we simply cannot hold that the trial court abused its discretion. The trial court’s findings suggest that it looked to both appellee’s improved financial condition and appellant’s ability to pay. The fact that appellee’s financial situation had “improved considerably” and that her financial needs had been “significantly reduced” caused the trial court to reduce appellee’s alimony by more than thirty percent. Although we find no cases where alimony has been ordered indefinitely for such a relatively short-term marriage, it is not prohibited. Presumably, it has been thought that the need for flexibility outweighs the corresponding need for relative certainty. See Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982); Mitchell, supra. Our supreme court has refused to set a bright-line limitation on alimony, and we will not either.
Affirmed.
Vaught and Crabtree, JJ., agree. | [
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John B. Robbins, Judge.
Appellee Katie Crowder filed a petition for an order of protection against appellant Rex M. Pablo on August 29, 2005, alleging that she was in immediate danger of domestic abuse. On the same day, the trial court entered a temporary order of protection and scheduled a hearing for September 26, 2005. After the hearing, the trial court found that Ms. Crowder proved the allegations in her petition and entered a protection order restraining Mr. Pablo from having any contact with Ms. Crowder for a period of two years. Mr. Pablo now appeals.
Mr. Pablo raises two arguments for reversal. First, he argues that the trial court erred in refusing to allow him to call witnesses on his behalf. Next, Mr. Pablo contends that the evidence presented was insufficient to support the entry of an order of protection. We affirm.
At the hearing, Ms. Crowder testified that she began dating Mr. Pablo in April 2005. She stated that, “I was very serious about Mr. Pablo in the first couple of months,” and that, “I even took him to meet my family and I met his family.” However, Ms. Crowder indicated that she became concerned about Mr. Pablo’s controlling behavior in May 2005, when he would constantly call her at work and call her friends to talk about their relationship. According to Ms. Crowder, he would also show up at places where she was and demand that she spend time with him instead of her friends.
Ms. Crowder decided that she wanted to end the relationship but that, “I was fearful of calling it off all of a sudden because there were times when I would break plans with him and he would get very angry.” In the interest of her safety, Ms. Crowder invited Mr. Pablo to a party on June 17, 2005, where she broke up with him in front of several other people. According to Ms. Crowder, Mr. Pablo grabbed her and tried to kiss her, but she pulled away. Mr. Pablo became very upset and threw a beer bottle that burst behind Ms. Crowder. He also grabbed her arm and screamed obscenities in her face. Although Mr. Pablo did not literally say, “I’m going to hurt you,” Ms. Crowder was very afraid for her safety and thought he was going to physically hurt her. She stated that neighbors were turning their lights on and coming outside because the yelling was so loud, and that she told Mr. Pablo to leave. Mr. Pablo left briefly but returned, and resumed yelling in Ms. Crowder’s face, when she threatened to call the police. Mr. Pablo left again about a half hour after that.
Ms. Crowder testified that after she terminated the relationship Mr. Pablo was obsessive and continued to come to her apartment and give her gifts and flowers. He also sent her e-mails, the last of which was received on August 25, 2005, when Mr. Pablo expressed anger after he “finally got that I did not want contact with him.” Ms. Crowder stated that she received a phone call at 2:30 a.m. on August 29, 2005, and believed it was Mr. Pablo because she recognized his voice. Ms. Crowder stated, “He told me that he was coming over and said some sexually explicit things to me.” This caused Ms. Crowder to be “very terrified,” and she decided to go to the prosecutor’s office and seek a protection order the following day.
Mr. Pablo testified on his own behalf, and he stated that he has not contacted Ms. Crowder since June 19, 2005, although he did send her flowers twice. However, on cross-examination he recanted that testimony and admitted that he continued to contact Ms. Crowder even after she made it clear that she wanted no contact with him, and that the contact continued until August 25, 2005. Mr. Pablo denied making a harassing phone call at 2:30 a.m., and he could not recall yelling in Ms. Crowder’s face at the party.
After testifying, Mr. Pablo stated, “I would like to bring up my witness.” When asked by the trial court what the witness would testify to, Mr. Pablo responded, “What happened at the party.” The trial court declined to hear any additional witnesses, stating, “We have heard from you and you both have given an account of what happened at this party. I am going to rule that that would be duplicative and simply delay the proceedings.”
Mr. Pablo’s first argument is that the trial court erred in refusing to allow him to call witnesses on his behalf. He cites Ark. R. Evid. 611(a), which provides:
Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the tmth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
Mr. Pablo asserts that his witnesses would not have needlessly consumed time, and instead would have ensured ascertainment of the truth because they would have rebutted Ms. Crowder’s testimony concerning his violent and abusive behavior at the party. Mr. Pablo argues that the trial court’s decision on this matter constituted an abuse of discretion.
Mr. Pablo also cites Gerard v. State, 235 Ark. 1015, 363 S.W.2d 916 (1963), in support of his first argument. In that case, the trial court revoked the appellant’s suspended sentence based on the testimony of seven police officers, while refusing to let the appellant testify on his own behalf or call witnesses. The supreme court reversed and remanded, stating, “[irrespective of the offense with which one is charged, and regardless of the testimony against him, a defendant is entitled to call his witnesses — and certainly, — to testify himself.” Gerard v. State, 235 Ark. at 1019, 363 S.W.2d at 918. In the present case, Mr. Pablo maintains that the protective order is penal in nature given that there is a public record of his abusive or violent conduct and there has been a substantial impact on his personal freedoms. He thus submits that he had the right to present witnesses to rebut the testimony of the complaining party.
Our supreme court has held, and our rules of evidence require, that when challenging the exclusion of testimony, an appellant must make a proffer of the excluded evidence at trial so that we can review the decision, unless the substance of the evidence is apparent from the context. Halford v. State, 342 Ark. 80, 27 S.W.3d 346 (2000); Arkansas Rules of Evidence 103(a)(2). At the trial, Mr. Pablo unsuccessfully tried to call an unidentified witness to testify about what happened at the party. What is critical to our determination of this point is that appellant failed to go forward and make any proffer of what the witness’s testimony would have been. See Halford v. State, supra. Hence, we can only speculate as to what the witness’s testimony would have been and any resulting prejudice. While we agree that the trial court erred in failing to allow Mr. Pablo to call the witness, it has consistently been held that we will not reverse in the absence of a demonstration of prejudice. See Stivers v. State, 354 Ark. 140, 118 S.W.3d 558 (2003).
Mr. Pablo’s remaining argument is that there was a lack of evidence to support the entry of the protection order. Arkansas Code Annotated section 9-15-103(2) (Supp. 2005) provides:
(2) “Domestic abuse” means:
(A) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members; or
(B) Any sexual conduct between family or household members, whether minors or adults, which constitutes a crime under the laws of this state [.]
Mr. Pablo contends that the trial court erred in finding that he committed domestic abuse against Ms. Crowder, noting that he never specifically threatened to hurt her. He submits that the incident at the party was an isolated event and that there was no evidence that there was any continuing threat of abuse at the time of the hearing.
Mr. Pablo also challenges whether the relationship between the parties met the definition of “family or household members” under the applicable statute. He cites Arkansas Code Annotated section 9-15-103(3) and (4) (Supp. 2005), which provides:
(3) “Family or household members” means spouses, former spouses, parents and children, persons related by blood within the fourth degree of consanguinity, any children residing in the household, persons who presendy or in the past have resided or cohabi-tated together, persons who have or have had a child in common, and persons who are presently or in the past have been in a dating relationship together; and
(4) (A) “Dating relationship” means a romantic or intimate social relationship between two (2) individuals which shall be determined by examining the following factors:
(i) The length of the relationship;
(ii) The type of the relationship; and
(iii) The frequency of interaction between the two (2) individuals involved in the relationship.
(B) “Dating relationship” shall not include a casual relationship or ordinary fraternization between two (2) individuals in a business or social context.
Mr. Pablo concedes that there was a very short “dating relationship” between the parties, but contends that a dating period of less than two months is not what the legislature was targeting.
The standard of review on appeal from a bench trial is whether the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence Newton v. Tidd, 94 Ark. App. 368, 231 S.W.3d 84 (2006). Disputed facts and determinations of credibility of witnesses are within the province of the fact finder. Id. We hold that the trial court did not clearly err in finding that Mr. Pablo committed domestic abuse against a family or household member.
Ms. Crowder testified that Mr. Pablo grabbed her, screamed obscenities in her face, and burst a beer bottle behind her at the June 17, 2005, party, causing her to fear for her safety. Over the next couple of months, Mr. Pablo continued to contact Ms. Crowder against her wishes, and Ms. Crowder stated she became very terrified when Mr. Pablo called her early in the morning on August 29, 2005, threatening to come to her apartment. From this testimony the trial court could reasonably find that Mr. Pablo committed domestic abuse under the statute by inflicting fear of imminent physical harm, bodily injury, or assault.
Furthermore, we have no hesitation affirming the trial court’s finding that the parties were “family or household members.” It is conceded by Mr. Pablo that he and Ms. Crowder were in a dating relationship for a couple of months, which Ms. Crowder characterized as “serious.” This clearly comes within the definition of the applicable statute.
Affirmed.
Pittman, C.J., and Baker, J., agree.
This statute was amended in 2005 to include “persons who are presently or in the past have been in a dating relationship” under the definition of “family or household members.” The amendment became effective on August 11, 2005, which was after the July 17,2005, incident at the party. However, the amendment was in effect when appellant made the harassing telephone call on August 29,2005, which was the same day the petition for order of protection was filed. Mr. Pablo does not argue that the prior version of the statute applies to this case. | [
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Harrison, J.
Counties being created by the authority of the Legislature for political and judicial purposes, and deriving all their powers, where the Constitution has not otherwise provided, from that authority, the Legislature may, according to its own views of public policy and convenience, enlarge or diminish their powers, and it may extend, limit or change their boundaries, without the consent of the inhabitants, except that, as inhibited by Section 2 of Article XITI of the Constitution, “no part of the county shall be taken off to form a new county without the consent of a majority of the voters in such part proposed to be taken off.” Eagle et al v. Beard et al, 33 Ark., 497; Loftin, Sheriff, v. Watson, 32 Ark., 422; Cole v. White county, Ib. 51; English v. Oliver, 28 Ark., 327; Pulaski county v. Irvin, 4 Ark., 489; Laramie Co. v. Albany Co., 2 Otto, 307.
That, the Legislature may require from the county to-a part of another’s territory has been attached, payment of a portion of the latter’s indebtedness, and direct, ^at same ascertained in the manner described by the act in this case has been settled by this court. Eagle et al v. Beard et al, supra; Reynolds v. Holland, Sheriff, 35 Ark., 56; Phillips Co. v. Lee Co., 34 Ark., 243; Lee Co. v. The State ex rel, etc., 36 Ark., 276; Monroe Co. v. Lee Co., Ib., 378.
In the case of Phillips county v. Lee county, in speaking, of the manner of adjustment of the portion of Phillips-county’s indebtednss, to be paid by Lee county, prescribed, by the act creating the latter county, the court say:
“The proceedings are not of the nature of a suit or action, by Phillips against Lee county, to enforce an obligation, resting in contract. They were had in pursuance of legislative directions, for the purpose of so adjusting the fiscal arrangements of the new, and several old counties, as to-save the rights of citizens and creditors, and make the change in the political organization of the territory concerned harmonize with them, as far as might be possible. The Legislature had full power to make this adjustment of the burdens, and to impose on the new county of Lee all it attempted, with or without its consent.”
The fourth section of the Act of December 7, 1875, is as follows :
“Section 4. It shall be the duty of the County Court of Pulaski county, at the next regular term held after the-passage of this Act, to make a pro rata division of the debt of Pulaski, according to the assessed value of all the property, both real and personal, within the territory cut off and1 attached to each of the counties of Lonoke, Saline and Faulkner, said pro rata division to be determined according to the last assessment made in Pulaski county, and enter the same in full upon the records of the County Court, and cause a full, true and perfect transcript to be made, under the seal of the court, and transmitted to the clerk of each of the counties named ; and it shall be the duty of the clerk of each of the counties of Lonoke, Saline and Faulkner to lay the same before the next regular term of the County Courts of said counties held thereafter; and it shall be the duty of each of the judges of the respective counties to-cause said transcript to be spread at length on the County Court records of their respective counties, and the same shall from thence thereafter stand and become a valid indebtedness due the said Pulaski county from each of the counties herein named.”
There was nothing in the objection that the statement— showing Saline county’s portion of the Pulaski county indebtedness — was made up by the clerk. It does not follow that because the clerk prepared it (which he might very properly do, as an auditor of the court) that it was not duly examined by the court and found to be correct. And as the term at which the adjustment was to be made fixed by the act, Saline county had notice of the proceeding, and might have insisted on its correction, if incorrect, ” ° ’ and if not done, appealed to the Circuit Court from order of adjustment.
The statement is sufficiently plain to show the liability of Saline to Pulaski, and the facts upon which the pro rata division was made ; but if Saline' county desired it to be made more specific, it might readily have caused it to be done.
ough, by the change of the line between the counties, a part of Pulaski, which is in the Tenth Senatorial district, 77 t ■ „ , , was attached to Saline, in the Ninth, there was not, objected by the respondent, a change of those districts, trary to Section 2 of Article VIII., which prohibits any change of Senatorial districts until after the national census •of 1880. They are each still composed of the same counties as before. Counties are the constituents of the districts, not territory or inhabitants. Howard v. McDiarmid, 26 Ark., 100.
The answer to the petition contained no matter of defense, ;and the demurrer to it should not have been overruled. The judgment of the court below is, therefore, reversed, •and the cause remanded to it, with instructions to sustain the demurrer, and for further proceedings. | [
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Eakin, J.
This is an action by a minor for possession-of a homestead, against purchasers of the tract, of which the. homestead was a part, át a sale under order-of the Probate Court. There was judgment for possession, and for one year’s rent. Defendants appealed, and, upon the statement of appellee’s attorney, endorsed upon the transcript,, the cause has been advanced as a delay case.
The only error complained of is that rents were estimated, for a period before the commencement of the suit.
A minor cannot waive his right to a homestead, during-minority; and being supposed to be under the control of others, does not perfect it by residence. The proceeds may be applied to his maintenance and education. Those who buy, at probate sale the tract of land to. which the homestead appertains must take notice of the minor’s-rights ; and if they use his property for their own profit, cannot complain on being called to account.
What course might be proper for them, if the homestead had not been marked by metes and bounds, out of a larger tract, it is not necessary here to determine. Upon the-whole transcript it sufficient^ appears that it had been done-in this case, and was matter of sufficient notoriety to have been easily ascertained. It is alleged in the complaint, and not directly, nor even impliedly, denied.
The assignment of the value of the rent is sufficiently supported by evidence, and seems reasonable.
All the points in this case are either settled by, or flow legitimately from, the rulings in the case of Booth v. Goodwin, et al., 29 Ark., 633.
Affirm. | [
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opinion.
Harrison, J,
As shown by the bill of exceptions, which purports to contain all the evidence in the case, the only evidence adduced to prove title in the plaintiff, was the ■testimony of Long.
The deed to her from him, which she relied upon as a ’ part of her chain of title, and a copy of which was exhibited with the complaint was not, it seems, read to the jury, and no mention is made of it in the bill of exceptions.
The copies of deeds, which, either party in an action for the recovery of lands relies upon as evidence of his title, and which the act of March 5th, 1875, requires to be filed as exhibits with his complaint or answer, are no part of the pleadings. Jacks v. Chaffin et al., 34 Ark., 554.
The deeds themselves must, upon the trial when it can Be done, be produced and read to the jury, if not, the next best evidence must be produced.
The evidence being manifestly insufficient to show title in plaintiff to the parcels of land the defendant claimed i® his answer, or to entitle her to a verdict, we have no occasion to notice the instructions. The motion for a new trial was. properly overruled.
But it is a general rule of pleading, and it is so expressly provided by section 4608 Gantt's Digest, that every material allegation of the complaint not specifically controverted by the answer . must be taken as true. The plaintiff should, therefore, have had judgment for the quarter section as to which the answer was silent and the action undefended. She is as clearly entitled to judgment for that parcel as if she had recovered it by verdict, and according to the proper and established practice should have taken judgment by default for it, Thompson v. Kirkpatrick, 18 Ark., 580; Desha's executors v. Robinson, adm’r., 17 Ark., 228; Wheat v. Dotson, 12 Ark., 699.
Except as to the quarter section!, as to which no defense was made by the defendant — the judgment is affirmed; and as to that it is reversed, and the cause is remanded to the court below, with instructions to render judgment in favor of the plaintiff therefor. | [
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J ohn B. Robbins, Judge.
Appellant Southwest Arkansas Development Council, Inc., and its insurance carrier, Risk Management Resources (collectively “Southwest”) appeal the award of benefits to appellee Irene Tidwell in her claim for workers’ compensation benefits. The sole issue at the Workers’ Compensation Commission level, and to us on appeal, is whether appellee was performing employment services at the time of her injury. The Commission found that appellee was performing employment services at the time of her injury. Southwest contends that this finding is not supported by substantial evidence and is an erroneous interpretation of the law. We affirm.
This court reviews decisions of the Workers’ Compensation Commission to determine whether there is substantial evidence to support it. Rice v. Georgia-Pacific Corp., 72 Ark. App. 149, 35 S.W.3d 328 (2000). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if its findings are supported by substantial evidence. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The issue is not whether we might have reached a different decision or whether the evidence would have supported a contrary finding; instead, we affirm if reasonable minds could have reached the conclusion rendered by the Commission. Sharp County Sheriffs Dep’t v. Ozark Acres Improvement Dist., 75 Ark. App. 250, 57 S.W.3d 764 (2001).
We do not review the decision of the administrative law judge but rather we determine whether the Commission’s decision upon its de novo review is supported by substantial evidence. See, e.g., Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981). A majority of the Commission is required to reach a decision. See Ark. Code Ann. § 11-9-204(b)(1) (Repl. 1996); see also S & S Constr., Inc. v. Coplin, 65 Ark. App. 251, 986 S.W.2d 132 (1999). Two-to-one decisions are frequently issued by the Commission, and those are majority decisions. S & S Constr., Inc. v. Coplin, supra. In this appeal, it is the majority opinion issued by the Commission that we review.
There is no dispute about the relevant facts. Appellee worked as an in-home client service assistant, providing assisted-living services for home-bound persons in southern Arkansas. On January 9, 2002, she had provided services to one client and was driving toward another client’s home. En route, appellee pulled off the highway into a convenience store parking lot to buy a soft drink because she was thirsty. She returned to her vehicle, and as she drove out of the parking lot and back onto the highway, her vehicle was hit by a truck. She filed a claim for the injuries she sustained in the accident. Southwest resisted the claim on the basis that appellee was not performing employment services at the time of her injury because she had deviated from her job duties. Appellee contended that she did not deviate from her duties because this personal need was no different than any other such need in a fixed workplace. Appellee also contended that even if she had “deviated” from her work momentarily, at the time of her injury she was traveling toward the next work site and had resumed her work activities.
The administrative law judge denied benefits. Appellee appealed to the Commission, which reviewed the relevant case authority and found on de novo review that appellee’s claim was compensable. It found that the cases of Collins v. Excel Specialty Prods., 347 Ark. 811, 69 S.W.3d 14 (2002); Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002); and Wallace v. West Fraser South, 90 Ark. App. 38, 203 S.W.3d 646 (2005), required this result. The Commission’s decision stated in pertinent part that:
The claimant’s act in stopping for a soft drink was something permitted by her employer and one that did not detract or conflict with her purpose of traveling to the employer’s client to perform employment services. As noted by the Supreme Court in Collins, an act which the employer contemplates and permits is part of an employee’s employment services. Further, even if it were true that obtaining a soft drink was a deviation from the claimant’s employment so as to remove her from the realm of employment service, under the holding of Wallace, the claimant had returned to her employment duties in attempting to pull back onto the roadway. At that point, her break had ended and she was once again attempting to carry out the employer’s purpose in traveling to provide services to their client.
The holdings of the Arkansas Supreme Court and the Arkansas Court of Appeals compel us to find that the claimant was engaged in employment services at the time of her injury. The criteria set out by those appellate courts clearly bring claimant’s conduct into the realm of employment services and their holdings are binding upon this Commission.
The dissenting Commissioner expressed disagreement, viewing the cases cited above to be distinguishable because in those cases, the claimant was actually on the employer’s premises. The dissenter also noted that the Wallace case was under review by the Arkansas Supreme Court. Southwest has now appealed to our court seeking reversal of the prevailing majority opinion issued by the Commission.
Appellant Southwest’s arguments on appeal echo the points articulated by the dissenting Commissioner. In our consideration of this appeal, we first note that the Wallace case on review has been decided by our supreme court in Wallace v. West Fraser South, Inc., 365 Ark. 68, 225 S.W.3d 361 (2006). In that case, the critical issue was whether Wallace was performing employment services at the time he fell and injured himself. He had taken a break from driving a fork lift on the employer’s work site. As Wallace was “coming off break” walking back toward the fork lift, he fell. The supreme court recognized that it had to construe the Workers’ Compensation Act strictly and define the phrase “employment services” within the parameters of Act 796 of 1993. It examined the appellate case law in Arkansas giving meaning to “employment services” including Collins, supra. The supreme court found instructive the cases in which a claimant was awarded benefits when he or she was returning to work after a break. See Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002); Matlock v. Arkansas Blue Cross & Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001). The supreme court declined to adopt a bright-line rule that any employee on a break is per se performing employment services. Instead, it held that Wallace was performing employment services because he was returning to his work after a permissible break period, and that nothing in the record showed that Wallace’s actions were inconsistent with his employer’s interests in advancing the work.
We can find no meaningful distinction to be drawn between Mr. Wallace returning from his break to his work and the present appellee’s returning from a permissible stop to resume her work travel. They were both “coming off a break,” and thus, the deviation from work was completed. As construed by our appellate courts, appellee was performing employment services at the time of her injury. The Commission did not err in so finding.
With regard to the contention that appellee was not on company property at the time of her injury, we disagree that this is a bar to her recovery of benefits. In Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997), the supreme court recognized that an employee is generally said not to be acting within the course of employment when he or she is traveling to and from the workplace. This “going and coming” rule ordinarily precludes recovery for an injury sustained while the employee is going to or returning from his place of employment. Lepará v. West Memphis Mach. & Welding, 51 Ark. App. 53, 908 S.W.2d 666 (1995). There are, however, exceptions to this rule. Olsten, supra. In the Olsten case, the claimant was an in-home nursing assistant who had to drive to each client’s home to provide care. Ms. Olsten was injured in a vehicular accident en route to a client’s home, and her claim was approved because she was deemed to have been providing employment services at the time she was injured. The supreme court noted that Ms. Olsten “was required by the very nature of her job description to submit herself to the hazards of day-to-day travel in her own vehicle, back and forth to the homes of her patients,” which meant she was acting within the course of her employment when she was injured. Id., 328 Ark. at 386. Likewise, appellee in the instant case was traveling between clients’ homes when she took a short break to buy a drink for herself, and had resumed the travel necessary to offer in-home services to Southwest’s clients. The Commission correctly determined that she was acting within the scope of her employment and providing employment services when she was injured en route to her next job site.
Because the Commission’s decision is supported by substantial evidence and demonstrates no error in the application of relevant law, we affirm.
Affirmed.
Griffen and Neal, JJ., agree. | [
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Karen R. Baker, Judge.
Jason Basham was convicted in a Saline County jury trial of first-degree terroristic threatening, second-degree sexual assault, second-degree battery, and rape. He was sentenced to a total of forty-four years’ imprisonment in the Arkansas Department of Correction.
Appellant’s counsel initially filed a motion to withdraw on the grounds that the appeal was without merit pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals. On June 29, 2005, we ordered rebriefing on the grounds that appellant’s counsel had not briefed all adversarial rulings. On January 11, 2006, we again ordered rebriefing. The terms “wholly frivolous” and “without merit” are often used interchangeably in the Anders brief context. Whichever term is used to describe the conclusion an attorney must reach as to the appeal before requesting to withdraw and our court must reach before granting the request, what is required is a determination that the appeal lacks any basis in law or fact. McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 439 (1998).
Due to our conclusion that an argument on appeal addressing evidence of prior bad acts pursuant to 404(b) would not be wholly frivolous, counsel’s motion to withdraw was denied and we ordered rebriefing in adversary form. Tucker v. State, 47 Ark. App. 96, 885 S.W.2d 904 (1994). In this adversarial brief, appellant’s sole argument is that the trial court erred in allowing evidence of prior bad acts pursuant to Rule 404(b). He asserts that the State’s argument that the similarity of the acts showed absence of mistake or accident is inapplicable under the facts of this case. We find that the trial court did not err and affirm.
The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the trial court, and we will not reverse absent a showing of manifest abuse. Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002). The general rule is that evidence of other crimes by the accused, not charged in the indictment or information and not a part of the same transaction, is not admissible at the trial of the accused. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004). The list of exceptions set out in the rule is exemplary and not exhaustive. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). Testimony is admissible pursuant to Rule 404(b) if it is independently relevant to the main issue, relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal or a bad person. Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996).
The trial court in this case conducted a hearing on March 9, 2004, to determine the admissibility of the testimony appellant challenges here. The witness testified that approximately three and one-half years before, when she was living with appellant and pregnant with his child, he forced her to have anal sex. She described how when she tried to get away from him and screamed at him to stop, he pushed her down on her stomach and held her down with his body. She stated that appellant eventually ended the painful experience because he became “turned off’ by her crying and screaming. This event led to her terminating the relationship.
Appellant’s rape conviction on the rape charge arose from appellant anally penetrating his wife with his penis by forcible compulsion while beating her until she could not see, threatening the children, and forcing their young son to witness the attack. The victim testified that appellant first became violent with her when she was pregnant with their first child. The circumstances surrounding the rapes were not identical, but their similarities — that appellant was willing to disregard the wishes of persons with whom he was in intimate relationships and to use force to anally penetrate them — rendered the testimony of the earlier rape admissible.
At trial and on appeal, appellant argued that he and the victim engaged in consensual anal intercourse. However, when appellant’s counsel asked appellant whether his wife ever protested in engaging in anal sex, he replied, “Not — not indirect,” and then elaborated, “At one point, she said that — at one point she said that, no, she didn’t want it that way, at one point[,]” but that he did it that way anyway. On cross-examination, he explained that “she never said no, no, stop that. The only thing she ever said was no, she didn’t feel like it[,]” adding “[s]he just said no she didn’t feel like anal sex.”
This testimony could reasonably be understood to be a claim that appellant mistakenly thought the victim consented. Appellant contends that the plain meaning of the words mistake or accident are inapplicable to this case because no party suggested that appellant had sex with his wife by mistake or accident — he readily admits they had sex. We agree with appellant that the issue was not whether sexual contact occurred. The factual determination to be made by the fact finder was not whether appellant mistakenly had sex, but whether appellant mistakenly believed the victim had consented to the act.
Although our legislature has not adopted the mistake-of-fact defense to a rape charge, the State of California allows the defense. The case of People v. Stitely, 108 P.3d 182 (Cal. 2005) addressed the defense and an examination of the defense aids our analysis. The mistake of fact defense to a rape charge has two components: first, the defendant must have honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse, which involves evidence of equivocal conduct by the victim that the defendant mistook for consent; second, an objective component asks whether the defendant’s mistaken belief regarding consent was reasonable under the circumstances. See id. at 208.
Therefore, the witness’s testimony was relevant to the factual determination of whether appellant honestly and in good faith, albeit mistakenly, believed the victim consented to anal penetration. Accordingly, the trial court did not err in finding the testimony independently relevant to the issue of lack of mistake as to consent.
Affirmed.
Robbins, J., agrees.
Pittman, C.J., concurs. | [
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Larry D. Vaught, Judge.
On appeal Jim Wyatt argues that the trial court erroneously denied his motion to compel arbitration and dismiss the claim filed against him by Tracy Giles. Specifically, he argues that the trial court misapplied Arkansas’s Uniform Arbitration Act, codified at§ 16-108-201 (Repl. 2006). We affirm.
On October 13, 2004, Tracy Giles filed a complaint against Wyatt and Visual Cosmetic Changes. In her complaint she specified that she was alleging “an action in tort for negligence.” She claimed that Jim Wyatt breached his duty of care by failing to “sufficiently numb [Giles’s] skin, so when Mr. Wyatt started the procedure [Giles] experienced severe pain,” and that “one eyeliner was larger than the other eyeliner.” She also complained that, on the day following the procedure, she “awoke and saw that both of her eyes were severely swollen and black and blue.”
On December 6, 2004, Wyatt answered Giles’s complaint with a motion asking the trial court to dismiss Giles’s claim and to compel arbitration. Wyatt based his claim on language contained in a “Disclosure and Consent for Tattoo and Dermal Procedures” agreement signed by Giles on September 29, 2002, which stated:
I have agreed that should I have a complaint of any kind whatsoever, I shall immediately notifyjames L. Wyatt[,] and I further agree that any controversy or claim arising out of or relating to this consent and/or signed contract between myself and James L. Wyatt or the breach thereof, shall be settled by arbitration in the state of Arkansas in accordance with the Rules of the American Association and judgment of the award rendered by the arbitrator^) may be entered in any court having jurisdiction thereof.
In her response to Wyatt’s motion, Giles argued that the arbitration. agreement was not mutual and that without mutuality the arbitration agreement was not enforceable.
Oral arguments were heard on May 31, 2005. At the hearing, the trial court noted that because Giles’s cause of action sounded in tort, not contract, arbitration was not her sole remedy. Wyatt responded that because Giles defended the motion to dismiss using a contract defense — claiming that the parties’ agreement lacked mutuality — she had waived her right to argue that her claim sounded in tort and thus was not covered by Arkansas’s Uniform Arbitration Act. The trial court concluded that whether or not an action sounds in tort is not a waivable issue and denied Wyatt’s motion to dismiss and to compel arbitration based on the language contained in § 16-108-201(b)(2), which states that agreements to arbitrate “shall have no application to personal injury or tort matters.” It is from this decision that Wyatt appeals.
A trial court’s denial of a motion to compel arbitration is an immediately appealable order. Showmethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 27 S.W.3d 361 (2000). Our court’s review is authorized by Ark. Code Ann. § 16-108-219(a) (Repl. 2006) and is conducted de novo. Am. Ins. Co. v. Cazort, 316 Ark. 314, 871 S.W.2d 575 (1994).
In our review of this case we are particularly mindful of our review standard. In an appeal de novo, “the appellate court uses the trial court’s record but reviews the evidence and law without deference to the trial court’s rulings.” Blacks’s Law Dictionary 94 (7th ed. 1999). Thus, in this case, we are left with the singular task of concluding whether — as a matter of law — Giles’s exclusive remedy in her dispute with Wyatt is arbitration. As a threshold matter, we must examine the arbitration agreement entered into by the parties, the complaint filed by Giles, and our state’s arbitration act. Although Giles agreed that any claims she has against Wyatt would be governed by Arkansas’s Uniform Arbitration Act, the act specifically excludes claims sounding in tort from its boundaries. Therefore, if Giles’s claim sounds in tort, her remedy is not exclusively arbitration.
There is no doubt that the claims outlined in Giles’s complaint sound in tort. Further, we reject Wyatt’s metamorphosis argument. Simply put, a tort does not cease to be a tort based on a litigant’s response — or lack thereof— to a motion to compel arbitration. Therefore, because Giles has alleged a tort and torts are not subject to the provision of the arbitration act, we conclude that the motion to compel arbitration should be denied.
Affirmed.
Hart and Roaf, JJ., agree. | [
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Robert J. Gladwin, Judge.
Appellees James R. Black-bum, Dale Booth, Jodie Carroll, David Gregory, Jerry H. Grif&n, Bobby Hanson, Larry A. Henry, Harold Kite, Walter E. McCarey, Ricky McDaniel, Gerald S. Smith, Lagafaatasi Tupua, Robert W. Van Hoy, Jon H. Ward, Don A. Washington, Jerry S. Wright, and Kathryn Young filed a complaint in the Little River County Circuit Court against appellant Millwood-RAB Marketing, Inc., d/b/a Millwood Landing Golf and RV Resort (hereafter “Millwood-RAB”) as successor in interest to Yarborough Landing Resort, Inc., alleging breach of contract regarding their membership agreements. In an order entered on August 13, 2004, the trial court granted the plaintiffs’ motion for partial summary judgment as it pertained to appellees Blackburn, Gregory, McCarey, Tupua, Ward, Washington, and Young but denied the motion as to appellees Booth, Carroll, Griffin, Hanson, Henry, Kite, McDaniel, Smith, Van Hoy, and Wright. In its order, the trial court found that Millwood-RAB had assumed the membership agreements from its predecessors in interest and had materially breached the contracts of the appellees who were granted partial summary judgment. The trial court reserved the issue of damages and an attorney’s fee. In its final order entered on July 22, 2005, the trial court granted summary judgment to the remaining appellees based on its finding that Millwood-RAB had breached those contracts as well. The trial court then set forth which appellees were entitled to unlimited and limited free guest green fees and which appellees were entided to damages representing paid green fees and/or maintenance fees. In addition, the trial court awarded an attorney’s fee of $6000. From that final order come this appeal and cross-appeal.
Millwood-RAB raises three points on direct appeal: (1) the governing documents allowed it to amend the rules and regulations of the resort concerning guest fees and to increase maintenance fees; (2) estoppel cannot, as a matter of law, form a basis for recovery; (3) the trial court erred in awarding an attorney’s fee. Appellees filed a cross-appeal, arguing that the trial court erred in awarding only a reduced attorney’s fee to them as the prevailing parties and that this court should grant taxation of costs and award an attorney’s fee for this appeal. We affirm on direct appeal and cross-appeal and deny appellees’ request for taxation of costs and an attorney’s fee.
Around 1967, Yarborough Landing Resort, Inc., formed a private country club and R.V. park in Little River County near Ashdown that was commonly referred to as the Millwood Country Club, Millwood Golf Course, and Millwood Landing. From 1986 through 2003, appellees, with the exception of appellee Carroll, either purchased their memberships directly from Yarborough or purchased them from an original member. They purchased either Charter 1 Memberships or Special Memberships, both of which expired after a term of 100 years. Appellees paid an initial membership fee plus annual maintenance fees and thereafter prepaid rent. Pursuant to the Charter 1 and Special memberships, members were entitled to either free green fees with an unlimited number of guests or a limited number of four guests each day. Those membership agreements included the following language:
SAID Member(s) and their guests who accompany them to the Resort shall be entitled to free green fees at the Resort golf course during the term of their membership.
Or:
SAID Member(s) and their guests (Limited to 4 persons per day), who accompany them to the Resort shall be entitled to free green fees at the Resort golf course during the term of their membership.
Although it was not in writing, appellee Carroll received a Founders Membership, of perpetual duration, around 1986. He had been provided unlimited free green fees for guests since 1979.
Some members received an Assurance Certificate, containing the following language:
This RIGHT TO USE with all its related privileges may be bequeathed by Grantees to whomever so desired as long as Grantees are in good standing with YARBOROUGH LANDING RESORT and said heirs shall be bound by all obligations of Grantees.
As noted above, certain appellees bought their memberships from original members of the resort. Those contracts contained the following language:
We . . . agree to accept full responsibility in maintaining all annual dues to Millwood Landing and will abide by all rules and guidelines as set forth by the Resort.... Millwood Landing reserves the right to re-assess annual dues at any time and the right to alter rules and guidelines of the resort whenever it is deemed necessary by the resort.
The membership agreements and transferred membership agreements also included such language as:
This right to use shall be subject to but not limited to the provisions of current YARBOROUGH LANDING RESORT member handbook of Rules and Guidelines; the annual maintenance fee levied by YARBOROUGH LANDING RESORT: and the YARBOROUGH LANDING RESORT Membership Agreement signed by Member(s).
And, under a section entitled Privileges of Membership:
As long as member is in good standing with Resort, he (she) along with his (her) immediate family residing at home will be entitled to use all existing and future facilities constructed by Resort . . . Member agrees to be bound by all rules and guidelines as set forth in Resort’s Member Handbook of Rules and Guidelines, as it now exists and as it may from time to time be reasonably amended by Resort.
The introduction to the YARBOROUGH LANDING RESORT Membership Handbook of Rules and Guidelines contained language as follows:
THESE RULES AND GUIDELINES ARE SUBJECT TO CHANGE BY YARBOROUGH LANDING RESORT MANAGEMENT FOR THE BENEFIT OF THE MEMBERSHIP AS A WHOLE AND WITHOUT ENDORSEMENT OF INDIVIDUAL MEMBERS.
In addition, the handbook’s summary provided:
As stated above, these mies are subject to change by the Resort Management or the Developer at any time for the benefit of the majority of the members consistent with the purposes or intent of the membership offering....
Thereafter, Millwood Landing Golf & R.V. Resort Rules and Amended Resort Rules for Millwood Landing Golf and R.V. Resort, effective February 1996, provided that, “Members are responsible for any charges, actions, or damages caused by their guests or family members,” “Guests may be assessed a fee for certain amenities at the resort. Please inquire at the resort for verification of amenity fees,” and “Guests are welcome on a fee basis. See pro shop for current rates.”
In April 2002, Millwood Landing, which had since been sold to Cactus Resort Properties III, LLC, was purchased by Millwood-RAB. In addition to assignment and assumption language in the purchase agreement itself, a separate document entitled ASSIGNMENT AND ASSUMPTION OF CONTRACTS, AGREEMENTS AND INTANGIBLES contained the following language:
In accepting this Assignment, Buyer: (i) expressly assumes and shall perform all obligations of Seller with respect to the Contract Rights: and (ii) agrees to be bound under the Contract Rights to the same extent as Seller was bound by the Contract Rights prior to the Closing Date.
On October 11, 2002, Millw o o d-RAB suspended appellees’ guest privileges and began charging guests for green fees. Appellees filed a complaint alleging breach of contract on September 8, 2003. In April 2004, appellees filed a motion for partial summary judgment to be followed by further fact finding regarding damages and an attorney’s fee. In May 2004, Millwood-RAB filed a motion for summary judgment.
In an order entered on August 13, 2004, the trial court granted partial summary judgment to appellees Blackburn, Gregory, McCarey, Tupua, Ward, Washington, and Young. The trial court found that Millwood-RAB had assumed the contracts and concluded that Millwood-RAB could not modify the provision for free guest green fees by changing the rules and guidelines of the resort because that provision was part of the consideration for signing the contracts. The trial court reserved the issue of damages and an attorney’s fee.
At a hearing held on April 26, 2005, David Meredith, a lawyer and one of the two owners of Millwood-RAB, testified that he was involved with the acquisition of the company from Cactus Resort. He stated that the deal finally closed at the end of May 2002, but that Cactus Resort had failed to provide him with complete documentation on the different memberships. Meredith stated that the owners actually took over the resort in mid-June 2002, and they noticed that members were bringing free guests on a frequent basis. Meredith testified that, “It was not going to be financially viable to continue the operation that way.” He said that almost immediately Millwood-RAB started the policy of allowing guests to play for free on the day they were there but notifying them that the free-guest policy would not be honored in the future. Meredith stated that, although Millwood-RAB formulated a letter of notification, it was not mailed because the owners had no idea who to notify because of the incomplete documentation on the memberships. Meredith stated that the owners structured the maintenance fees according to the members’ use of the golf course because that would be more fair. He stated that the prior maintenance fee was sixty-nine dollars per quarter and that it was increased to $405 per quarter.
In its final order entered on July 22, 2005, the trial court noted its earlier granting of partial summary judgment on liability to seven appellees. The trial court further found that Millwood-RAB was contractually bound to and in material breach of the membership agreements as to the remaining appellees. Specifically, the trial court ruled from the bench that Yarborough Landing, as Millwood-RAB’s predecessor in interest, had used the free green fees for guests as a “hook” to get appellees to buy a membership. In its order, the trial court set forth the green fees to which appellees were entitled and provided that certain appellees were entitled to damages representing green fees and maintenance fees they had paid. Finally, the trial court awarded an attorney’s fee of$6000.
Direct Appeal
Millwood-RAB argues that the trial court ignored those portions of the membership agreements that incorporated by reference the resort’s rules and guidelines and that the four corners of all of the documents taken together clearly indicate that the rules, including those involving fees, were subject to change. Millwood-RAB concedes that it was required to fulfill certain obligations with respect to the members but maintains that, by virtue of the assignment, it also acquired the right to impose certain obligations upon the members.
Normally, on a summary-judgment appeal, the evidence is viewed in the light most favorable to the party resisting the motion, and any doubts and inferences are resolved against the moving party. Clarendon Nat’l Ins. Co. v. Roberts, 82 Ark. App. 515, 120 S.W.3d 141 (2003). When parties file cross-motions for summary judgment, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. Id. As a general rule, the filing by both parties of opposing motions for summary judgment will not warrant a court’s granting either party’s motion if indeed there exists a genuine factual dispute concerning a material issue. Chick-A-Dilly Properties, Inc. v. Hilyard, 42 Ark. App. 120, 856 S.W.2d 15 (1993) (citing Schlytter v. Baker, 580 F.2d 848, 849-50 (5th Cir. 1978)). When the parties proceed on the same legal theory and on the same material facts, however, the basis for the rule disappears. Id. Thus, cross-motions may be probative of the non-existence of a factual dispute when, as here, they demonstrate a basic agreement concerning what legal theories and material facts are dispositive. Id.
Where the meaning of a contract does not depend on disputed extrinsic evidence, the construction and legal effect of the contract are questions of law. See Tunnel v. Progressive N. Ins. Co., 80 Ark. App. 215, 95 S.W.3d 1 (2003). On appeal from a trial court’s determination of a purely legal issue, we must only decide if its interpretation of the law was correct.
The applicable rule of contract construction states that where two provisions of a contract conflict, the specific provision controls over a more general provision, as it is assumed that the specific provision expresses the parties’ intent. American Investors Life Ins. Co. v. Butler, 76 Ark. App. 355, 65 S.W.3d 472 (2002). We agree with the trial court’s interpretation of the membership agreements. It is unlikely that appellees, or the original members of the resort, would have agreed to buy a membership that featured limited or unlimited free green fees for guests if that provision could thereafter be eliminated by simply changing the rules regarding those fees. Both parties to the contract recognized the free green fees for guests as an attractive offer that was likely instrumental in motivating the members to buy a membership at the resort. Millwood-RAB could certainly change the rules and regu lations of the resort, but it could not retract a core provision of the membership agreements in doing so.
Next, Millwood-RAB argues that estoppel does not apply. Appellees had argued below that Millwood-RAB was estopped to claim that it was entitled to change the maintenance fees and charge guest fees because it did not immediately notify every member of the change and instead waited two or three months before making changes. Because appellees agree on appeal that estoppel does not apply and because the trial court’s order does not indicate that it relied on the theory of estoppel, we will not address this point.
Finally, Millwood-RAB argues that the trial court erred in awarding an attorney’s fee and that, alternatively, the fee was excessive. It is well settled that under Arkansas law, attorney’s fees are awarded only when expressly authorized by a statute or rule. Boatmen’s Trust Co. of Ark. v. Buchbinder, 343 Ark. 1, 32 S.W.3d 466 (2000). Arkansas Code Annotated section 16-22-308 (Repl. 1999) provides that the prevailing party in a civil action, including breach of contract, may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs. The decision to award attorney’s fees and the amount of an award are discretionary determinations that will be reversed only if there was an abuse of discretion. Buchbinder, supra.
This court has often observed that there is no fixed formula in determining reasonable attorney’s fees. Phi Kappa Tau Housing Corp. v. Wengert, 350 Ark. 335, 86 S.W.3d 856 (2002). However, a court should be guided in that determination by the following long-recognized factors: (1) the experience and ability of the attorney; (2) the time and labor required to perform the service properly; (3) the amount in controversy and the result obtained in the case; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged for similar services in the local area; (6) whether the fee is fixed or contingent; (7) the time limitations imposed upon the client in the circumstances; (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney. Id. Due to the trial judge’s intimate acquaintance with the record and the quality of service rendered, we recognize the superior perspective of the trial judge in assessing the applicable factors. Id.
Here, appellees’ attorney, Troy Hornsby, submitted an affidavit wherein he stated that he had been licensed to practice law in Arkansas since 1995. He charged $150 per hour for his services and fifty dollars per hour for his legal assistant’s time. According to Hornsby, his hourly rates were reasonable and customary for legal services in the area. He stated that he had, at that point, expended 83.7 hours in representing appellees, while his legal assistant had spent 2.3 hours, and that he expected to have expended 91.7 hours at the completion of his representation at the trial court level. Therefore, he requested $13,870, plus $100 for reasonable and necessary out-of-pocket expenses. In addition to the affidavit, Hornsby attached a copy of his firm’s billing statement reflecting the various charges. Considering the relevant factors, we cannot say that the trial court abused its discretion in awarding a $6000 attorney’s fee. Furthermore, we disagree with Millwood-RAB’s contention that the fee was excessive given that appellees’ total recovery was only $5242.72. As noted, there is no fixed formula in determining what is a reasonable attorney’s fee. See Wengert, supra.
Millwood-RAB also relies on Ark. R. Civ. P. 54(e) for the proposition that the trial court’s award was not proper because there was no stated basis for the award as it pertained to those appellees who received only declaratory relief and because appellees’ request for an attorney’s fee in its initial complaint cannot provide that basis. Rule 54(e) provides:
(1) Claims for attorneys’ fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.
(2) Unless otherwise provided by statute or order of the court, the motion must be filed and served no later than 14 days after entry of judgment; must specify the judgment and the statute or rule entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought.
Millwood-RAB argues that there was no such motion filed by appellees. In State Auto Property & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999), our supreme court held that Rule 54(e) does not require a written motion for attorney’s fees. That court also noted that an award of attorney’s fees pursuant to Ark. Code Ann. § 16-22- 308 further obviates the need for a motion to be filed requesting the fees. Although certain appellees received only declaratory relief, the action was commenced as a breach-of-contract claim. Accordingly, the granting of an attorney’s fee was proper under Ark. Code Ann. § 16-22-308.
Cross-Appeal
Appellees argue that the trial court erred in awarding a reduced attorney’s fee in light of the uncontradicted evidence that their attorney asserted entitlement to a reasonable and necessary attorney’s fee of around $13,000. Again, there is no fixed formula in determining what is a reasonable and necessary attorney’s fee. Wengert, supra. The trial court was able to observe and assess Hornsby’s performance at trial, and after considering the affidavit Hornsby submitted, the trial court determined that an attorney’s fee of $6000 was warranted. We simply cannot say that the trial court abused its discretion in awarding that amount.
Appellees also request that they receive taxation of costs pursuant to Sup. Ct. R. 6-7(a), (c), and/or (d), and they further request permission to petition this court for an attorney’s fee incurred in the appeal of their case. Supreme Court Rule 6-7 provides:
(a) Affirmance. The appellee may recover brief costs not to exceed $3.00 per page; total costs not to exceed $500.00.
(c) Affirmed in part and reversed in part. The Court may assess appeal costs according to the merits of the case.
(d) Imposing or withholding costs. Whether the case be affirmed or reversed, the Court will impose or withhold costs in accordance with Rule 4-2 (b).
Appellees supplemented Millwood-RAB’s Addendum with the affidavits of both parties’ attorneys and the attorneys’ billing statements consisting of fourteen pages. We, however, decline to award costs, as appellees would be entitled to such a paltry sum under (a); we fail to see how the merits of the case would warrant an award of costs under (c); and appellees did not comply with Sup. Ct. R. 4-2(b) to recover costs under (d).
Furthermore, appellees’ request for an attorney’s fee for this appeal pursuant to Ark. Code Ann. § 16-22-308 is denied. The cases relied upon by appellees are either inapplicable or have been overruled. In a per curiam opinion, our supreme court stated that Ark. Code Ann. § 16-22-308 permits trial courts, but not appellate courts, to assess attorney’s fees. See Mosley Mach. Co., Inc. v. Gray Supply Co., 310 Ark. 448, 837 S.W.2d 462 (1992).
Affirmed on direct appeal; affirmed on cross-appeal.
Motion for costs and attorney’s fee denied.
Griffen and Neal, JJ., agree.
McCarey and Young were later dismissed from the action.
Supreme Court Rule 4-2(b)(l) provides that in seeking an award of costs, counsel must submit a statement showing the cost of the supplemental abstract or Addendum and a certificate of counsel showing the amount of time that was devoted to the preparation of the supplemental abstract or Addendum. | [
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Larry D. Vaught, Judge.
Appellant Kelly Moiser argues on appeal that the Cleburne County Circuit Court clearly erred in finding that his son, A.M., was a dependent-neglected child. We agree and reverse.
On October 23, 2004, Kelly was arrested and incarcerated. At the time of his arrest, Kelly was accompanied by A.M. and a friend, Jessica Blankenstaff. Kelly asked Blankenstaff to take A.M. to Antoinette Moiser, Kelly’s aunt. Antoinette, in turn, took the child next door to Kelly’s father, Louis Moiser, who Kelly and A.M. had been living with prior to the arrest.
On October 27, 2004, the trial court held a Family in Need of Services hearing and found that there was not an appropriate care giver in the home. The court ordered the child into the custody of the Arkansas Department of Human Services (DHS) on a seventy-two-hour hold. On October 29, 2004, the State filed a Petition for Emergency Custody alleging that A.M. was dependent-neglected pursuant to Ark. Code Ann. § 9-27-303(17) (Supp. 2005), specifically asserting that the child was “neglected” as defined in § 9-27-303(36) (Supp. 2005).
On November 4, 2004, the court held a hearing and determined that there was probable cause to continue the emergency order. An adjudication hearing was held on November 11, 2004. The mother of the child, Jennifer Moiser, was not present.
At the time of the hearing, Kelly was incarcerated, and it was uncertain when he would be released. Kelly testified that A.M.’s mother was aware that A.M. had been taken into DHS custody. He stated that she signed custody of A.M. over to him after the divorce. Kelly told the court that he asked Blankenstaff to take A.M. to his aunt and then to his father’s house. He acknowledged that he could not take immediate custody of A.M. because of his incarceration. Kelly admitted that at the time of his arrest, his sister, Christine Halton, was also living in his father’s home. Christine had since been arrested and incarcerated. Kelly testified that he had served time in prison previously and that his father had taken care of A.M. during that time. Kelly told the court that he wanted A.M. to live with his aunt and uncle, Antoinette and Clifford Moiser.
Antoinette Moiser testified that she was willing to take temporary custody of the child. She stated that neither she nor her husband had ever used drugs or been convicted of a crime. She stated that she lived next door to Louis Moiser and would allow A.M. plenty of visitation with his grandfather.
Louis Moiser testified that he had taken care of A.M. after his son’s arrest and before DHS had taken custody of the child. He explained that he worked a shift that started at three in the morning but that he could probably go in around six or seven. He stated that before DHS took custody of A.M., he (Louis) had been working on finding a babysitter for A.M. Louis stated that he would not object to the court putting the child in Antoinette’s custody and would actually prefer that. Louis testified that Kelly’s sister, Christine, had substance-abuse problems and that he had cared for her three kids.
At the conclusion of the evidence, Kelly made a motion for directed verdict and argued that the State had failed to prove that the allegations in the petition were substantiated by evidence that the child had been neglected. The court denied the motion. Kelly then presented testimony from two witnesses, Nicole Chaberson, a family-service worker from DHS, and Jennie Moiser, Antoinette’s daughter. Chaberson told the court that she had investigated Antoinette and performed a home study. Chaberson opined that it would be an appropriate home for A.M. She explained that no information she had gathered about Antoinette or Clifford gave her concerns. She added that she had been to Louis’s home and noted nothing that would concern her about it. Jennie testified that she lived with her mother and father and would help out with A.M. She stated that she had never been arrested and felt like her home was appropriate for A.M.
Kelly renewed his motion for directed verdict and argued that A.M. was not neglected pursuant to § 9-27-303(36) and not dependent pursuant to § 9-27-303(17)(B). DHS maintained that a finding of dependency was required so that “whoever has custody of this child, there ought to be an Order giving them custody.” The court denied the motion and found the child dependent but not neglected. The court ordered the child into the custody of Antoinette and Clifford Moiser and asked DHS to continue a protective-services case with regard to the child.
In equity matters, such as dependency-neglect cases, the standard of review on appeal is de novo, but we do not reverse the judge’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Wade v. Ark. Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. However, a trial court’s conclusion on a question of law is given no deference on appeal. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000).
Arkansas Code Annotated § 9-27-325(h)(2)(B) (Supp. 2005) requires proof by a preponderance of the evidence in dependency-neglect situations. Under Ark. Code Ann. § 9-27-313 (Supp. 2005), a child can be taken into immediate custody by the State when that child is in immediate danger. Promptly following that taking, a probable cause hearing must be held and then an adjudication hearing. During the adjudication hearing, the State is required to prove by a preponderance of the evidence that the allegations in the petition for emergency custody were substantiated. Ark. Code Ann. § 9-27-327 (Supp. 2005). Under Ark. Code Ann. § 9-27-303(17)(B) a “dependent juvenile” is a “child whose parent... is incarcerated and ... no appropriate relative or friend [is] willing or able to provide care for the child.” The statute goes on to describe a “dependent-neglectedjuvenile” as one who “is at substantial risk of serious harm as a result of’ abandonment, abuse, neglect, or parental unfitness. Ark. Code Ann. § 9-27-303(18). The statute includes “dependent juveniles” as “dependent-neglected juveniles.” Id. The statute also describes “neglect” as:
(i) Failure or refusal to prevent the abuse of the juvenile when the person knows or has reasonable cause to know the juvenile is or has been abused;
(ii) Failure or refusal to provide the necessary food, clothing, shelter, and education required by law ....
(iii) Failure to take reasonable action to protect the juvenile from abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness when the existence of this condition was known or should have been known;
(iv) Failure or irremediable inability to provide for the essential and necessary physical, mental, or emotional needs of the juvenile.
(v)Failure to provide for the juvenile’s care and maintenance, proper or necessary support, or medical, surgical, or other necessary responsibility; or
(vi) Failure, although able, to assume responsibility for the care and custody of the juvenile or to participate in a plan to assume the responsibility; or
(vii) Failure to appropriately supervise the juvenile that results in the juvenile’s being left alone at an inappropriate age or in inappropriate circumstances, creating a dangerous situation or a situation that puts the juvenile at risk of harm.
See Ark. Code Ann. § 9-27-303(36).
Kelly contends that the trial court erred in not dismissing the petition for emergency custody at the adjudication hearing because the State was unable to substantiate the allegations in the petition as required by Ark. Code Ann. § 9-27-327. He also maintains that even if we find the trial court did not err in not dismissing the petition, it clearly erred in finding that the State had established the child was dependent-neglected under Ark. Code Ann. § 9-27-303(16).
In this case, the court specifically declined to find the child had been neglected and instead based its decision on a finding of dependency. The court’s conclusion that there was no proof presented at the adjudication hearing to substantiate a finding of neglect under § 9-27-303(36) was correct; however, the court clearly erred in adjudicating the child dependent-neglected based on a finding of dependency. Arkansas Code Annotated § 9-27-303(17)(B) clearly states that a child is considered “dependent” when the parent is incarcerated and there is no appropriate relative or friend that is willing and able to care for the child. There was substantial evidence in this case that relatives were willing to take the child — both the grandfather and the aunt and uncle had volunteered. Additionally, there was evidence presented that DHS had reviewed their respective homes and found them appropriate. There was no evidence presented at the adjudication hearing that these family members were inappropriate care givers. Therefore, we hold that it was clear error for the court to find dependency in this situation.
Reversed and dismissed.
Hart and Roaf, JJ., agree.
Although legal documents in this case refer to appellant as “Kelley Moiser,” the record reflects appellant signed his name “Kelly Moiser.” | [
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Olly Neal, Judge.
This case concerns a dispute over a strip of land along appellants’ and appellee’s common border. The trial judge quieted title to the property in appellee, and appellants now appeal from that ruling. We affirm.
The parties are long-time owners of adjoining lots on Lake Catherine in Garland County. Appellants’ deed grants them 75 feet of road frontage on the north and 150 feet of lake frontage on the south. To their west is a lot owned by appellee, Welch Motor Company; appellee’s deed grants it 204 feet of road frontage on the north and 278 feet of lake frontage on the south. Along their common border, there is a small indentation in the land, a valley of sorts, that runs downhill from the road to a small cove on the lake. This valley contains the fifteen-foot strip at issue.
Uncertainty over ownership of the strip has its origins in two 1930s deeds to the parties’ predecessors. Those deeds contain fifteen-foot overlapping conveyances. However, no active dispute arose until 2003 when appellee commissioned a survey that reflected it as the owner of the area in question. According to appellee, when appellant Hubert Moore expressed dissatisfaction with the survey, it filed the present quiet-title action. Appellants answered and counterclaimed, asserting their own claim to the area by virtue of adverse possession. Later, they obtained a survey depicting them as owners of the fifteen-foot strip.
On April 8, 2004, the case was tried before the circuit judge sitting as fact-finder. After hearing the testimony of over a dozen witnesses, viewing more than twenty exhibits, and visiting the property in question, the judge ruled that 1) the deed in appellee’s chain of title, which conveyed the fifteen-foot strip, was the superior deed, and 2) appellants did not establish their claim for adverse possession. The judge then entered an order quieting title to the disputed strip in appellee as per appellee’s survey. Appellants filed a timely notice of appeal and now argue that the trial court erred in: 1) finding that they did not establish their adverse-possession claim; 2) adopting the legal description from appellee’s survey; 3) finding that the deed in appellee’s chain of title was superior.
Traditional equity cases, such as quiet-title actions, are reviewed de novo on appeal. See White River Levee Dist. v. Reidhar, 76 Ark. App. 225, 61 S.W.3d 235 (2001). However, we will not reverse the trial court’s findings of fact unless they are clearly erroneous. Id. A finding of fact 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 committed. Id.
Deed Superiority
Although appellants present the issue regarding deed superiority as their third point on appeal, we believe that logic dictates that we address this issue first in order to establish which party held paramount legal title. The pertinent facts are as follows.
The property in question lies in the Southwest Quarter of the Southwest Quarter of Section 22 in Garland County, which will hereafter be referred to as “the forty.” The land in the forty was acquired by E.O. Kilpatrick in 1928, and thereafter, he began selling it in lots. A lot contiguous to the eastern line of the forty was sold to a man named Guthrie, and a lot much farther west was sold to a man name Willingham. The area between those two lots would eventually be sold to appellants’ and appellee’s predecessors.
The first deed in appellee’s chain of title was from Kilpatrick to D.D. Glover. The deed’s point of beginning is along the northern road, 110 feet west of the forty line. The description then proceeds as follows:
Magnetic south 6 degrees and 30 minutes, West 375 feet to a White Oak about 14 inches in diameter on the Flood Line of Lake Catherine said tree marked with a blaze on four sides, thence in a westerly direction along the flood line 278 feet to the south east comer of Willingham’s Property said corner being marked by an Iron Stake, thence North 27 degrees East 4 chains and 55 links (Equals 303.3 feet) to the North East Corner of WiUingham[’s] property, and thence to center of the road, thence east along the center of the road 204 feet to the point of beginning.
This deed was recorded in 1939, although it stated that it was a duplicate of a deed executed in 1934.
The relevant deed in appellants’ chain of title was from Kilpatrick to Lloyd Rhodes, conveying the western portion of what is now appellants’ lot (the eastern portion had previously been conveyed to Ed Davis, but that deed is not pertinent here). Its description reads:
Pt. of SW SW 1/4 Sec. 22 Twp. 3 S. R. 18 West, more minutely described as following, Commencing at a point 200 feet Westerly from the East line of said forty and at the Ed Davis S.W. Comer on lake; thence northerly along flood line of lake about 11 Ofeet to center of the valley to the D.D. Glover lot corner; thence northerly about 470 feet to center of road; thence East along center of road fifty feet to comer of Ed Davis Lot; thence South about 475 feet to place of beginning.
(Emphasis added.) This deed was recorded in 1936.
Although it is difficult to tell from the bare descriptions, the above conveyances overlap by fifteen feet on their northern ends. Appellants argued at trial that the deed of their predecessor, Rhodes, contained the paramount grant of the fifteen-foot strip because it was recorded first. The trial court ruled, however, that the reference in the Rhodes deed to “the D.D. Glover lot corner” showed that Kilpatrick and Rhodes had actual knowledge of the Glover conveyance and, thus, the Glover deed, although recorded later, took priority.
Generally, an instrument in writing that affects real property shall not be valid against a subsequent purchaser unless it is filed of record in the county where the real estate is located. See Killam v. Tex. Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990); Smith v. Parker, 67 Ark. App. 221, 998 S.W.2d 1 (1999); see also Ark. Code Ann. § 14-15-404(b) (Repl. 1998), which provides:
No deed, bond, or instrument of writing for the conveyance of any real estate, or by which the title thereto may be affected in law or equity, made or executed after December 21,1846, shall be good or valid against a subsequent purchaser of the real estate for a valuable consideration without actual notice thereof or against any creditor of the person executing such an instrument obtaining ajudgment or decree which by law may be a lien upon the real estate unless the deed, bond, or instrument, duly executed and acknowledged or proved as required by law, is filed for record in the office of the clerk and ex officio recorder of the county where the real estate is situated.
However, if a subsequent purchaser has actual notice of a prior unrecorded deed, he takes subject to it. See Killam, supra; see also Wasp Oil, Inc. v. Ark. Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983); Henderson v. Ozan Lumber Co., 216 Ark. 39, 224 S.W.2d 30 (1949); Skelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S.W.2d 425 (1946). A subsequent purchaser will be deemed to have actual notice of a prior interest in property if he is aware of such facts and circumstances as would put a person of ordinary intelligence and prudence on such inquiry that, if diligently pursued, would lead to knowledge of the prior interest. Killam, supra. This type of notice must be enough to excite attention or put a party on guard to call for an inquiry. Id. Whether one buying land has actual notice of another’s interest in the land is a question of fact. See Smith, supra.
We note first that Rhodes’s grantor, Kilpatrick, clearly had knowledge of the prior deed to Glover because Kilpatrick was Glover’s grantor. Moreover, we do not believe that the trial court clearly erred in ruling that Rhodes had notice of the Glover deed as well. Rhodes’s deed, in establishing its dimensions, makes reference to “110 feet to center of the valley to the D.D. Glover lot corner.” Rhodes was thus notified that the property adjacent to his had been conveyed to Glover, that Glover’s lot corner was in the center of the valley, and that, to a significant extent, his (Rhodes’s) interest was defined by the location of Glover’s boundary. This information was sufficient to put Rhodes on “such inquiry that, if diligently pursued, would lead to knowledge of the prior interest.” Killam, supra. By either calling for a copy of Glover’s deed or simply making an inquiry to Kilpatrick, Rhodes could have discovered the existence of the prior holding. See, e.g., Killam, supra, where language in a “wild deed” indicating a possible prior interest put a subsequent purchaser on notice.
Appellants contend, however, that the Glover deed’s description was inadequate to convey any notice to subsequent purchasers. Yet, the cases they cite in support of this argument — Bowlin v. Keifer, 246 Ark. 693, 440 S.W.2d 232 (1969); Turrentine v. Thompson, 193 Ark. 253, 99 S.W.2d 585 (1936); and Evans v. Russ, 131 Ark. 335, 198 S.W. 518 (1917) — are distinguishable in that they contain descriptions from which it is wholly impossible to locate the land in question. The court in Turrentine went so far as to observe that the descriptions in that case could not even identify the property as being in any particular county or state. The description in the Glover deed, by contrast, furnishes several keys for locating the property. It places the lot in a specific forty-acre parcel, provides an exact beginning point, states the dimensions of the lot size, and references various monuments. In light of these factors, we find no error on this point.
Adverse Possession
Appellants argue next that the trial court erred in ruling that they failed to prove adverse possession of the disputed area. To prove the common-law elements of adverse possession, the claimant must show that he has been in possession of the property continuously for more than seven years and that his possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Reidhar, supra. It is ordinarily sufficient proof of adverse possession that the claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. Id. Whether possession is adverse to the true owner is a question of fact. Id.
At trial, appellants presented proof of various activities that they conducted in the disputed area and argued that they, rather than appellee, exercised control and dominion over the area. While we agree that appellants presented some evidence on this point, we also note that appellee presented similar evidence on its behalf. Its witnesses, which included the son of one of appellants’ predecessors in title, testified that it had always been understood that the disputed area was under appellee’s ownership. Other witnesses testified that appellee (actually, the Welch family) had used and maintained the disputed property. Further, there was evidence that, prior to this dispute, appellants and the Welch family were close friends and that appellants amicably came onto appellee’s property at will, thus indicating that appellants’ use of the disputed area may have been permissive rather than adverse. See Reidhar, supra (recognizing that, generally, occupation of property is not adverse where a claimant has the owner’s permission to enter the property).
In any event, this is a case in which there was evidence on both sides of the issue, and, when the evidence is conflicting or evenly poised, or nearly so, the judgment of the trial judge on the question of where the preponderance of the evidence lies is persuasive. Belcher v. Stone, 67 Ark. App. 256, 998 S.W.2d 759 (1999). Further, the genuineness of the witnesses’ testimony, which appellants question herein, is a credibility question on which we defer to the trial court. See id. Based on these considerations, we decline to reverse on this point.
Use of Appellee’s Survey
Finally, we address appellants’ claim that the trial court erred when, in its final order quieting title in appellee, it adopted the description contained in appellee’s survey. One of appellants’ points of error is that the description was recited in the final judgment but not in the trial court’s prior letter opinion. However, a trial court is required, in a quiet-title action, to enter a final judgment that specifically describes the boundary between the litigants’ properties. See Jennings v. Buford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). Further, the fact that the description was not contained in the letter opinion did not prevent the court from placing it into the final judgment. See Moses v. Dautartas, 53 Ark. App. 242, 922 S.W.2d 345 (1996) (holding that a final determination of the parties’ rights was not made until the entry of judgment).
Appellants also question some of the methods used by appellee’s surveyor, R.L. Smith, in establishing the lot boundaries. Without going into the specifics of the survey, we believe it is sufficient to say that there was evidence from which the trial court could have concluded that Smith conducted a studied and commendable effort at establishing the parties’ true boundaries, given the confused state of their predecessors’ deeds. The credibility of a surveyor is a question for the fact-finder. See Killian v. Hill, 32 Ark. App. 25, 795 S.W.2d 369 (1990); see also Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 550 (1999) (deferring to the trial court on the comparison and credibility of surveys). We therefore affirm the trial court’s use of the Smith survey.
Affirmed.
Bird and Baker, JJ., agree.
A prior appeal in this case was dismissed for lack of an appealable order. Rice v. Welch Motor Co., No. CA04-1063 (Ark.App. June 8,2005) (not designated for publication).
In 1995, the General Assembly added, as a requirement for proof of adverse possession, that the claimant prove color of title and payment of taxes on the subject property or contiguous property for seven years. See Ark. Code Ann. § 18-11-106 (Repl. 2003). Because we are upholding the trial court’s ruling that appellants did not prove the common-law elements of adverse possession, it will not be necessary for us to address the statutory requirements. | [
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Andree Layton Roaf, Judge.
Appellant Detrick Croston was found guilty of two counts of forgery in the second degree by a jury and sentenced to nine years’ imprisonment. Croston now argues on appeal that the trial court erred (1) in requiring him to wear prison attire during his trial; and (2) in allowing the State to introduce evidence of incriminating statements he made to Bailiff Art Noel. We affirm.
On November 24, 2003, Croston was charged with two counts of forgery in the second degree. Wal-Mart security cameras recorded Croston entering the store and handing a cashier a check that belonged to Thomas Green, whose home had recently been burglarized.
Prior to his arrival at court for trial, Croston was offered civilian clothing for his court appearance, but he refused to wear it. At a hearing before the trial judge, Croston interjected that he did not want the clothes because they were too small. The trial court found that Croston was offered an opportunity to change clothes and refused; thus, he would be required to stand trial while wearing the prison attire. Furthermore, the trial court allowed the State to introduce evidence that Detective Williams and Bailiff Noel were familiar with Croston and were able to identify him from the Wal-Mart security tape; however, they could not mention that they knew him from past arrests or juvenile court.
At the subsequent trial, Bailiff Noel testified that while escorting Croston to jail he said to Croston, “I’ve known you for four years and I saw your face on that [surveillance] video, Detrick, and I know it was you,” and that Croston replied, “you may know my mannerisms but no one else will.”
On appeal, Croston first argues that the trial court erred by requiring him to appear for trial in jail attire. A criminal defendant does not have a constitutional right to be provided clothing of a particular style; the Constitution merely prohibits compelling a criminal defendant to appear in “clearly identifiable” jail clothing. See United States v. Henry, 47 F.3d 17 (2d Cir. 1995) (cert. denied 515 U.S. 1110 (1995)); see also United States v. Martin, 964 F.2d 714 (7th Cir. 1992). Absent a waiver an accused should not be forced to stand trial in distinct and identifiable prison garb. Box v. State, 348 Ark. 116, 123, 71 S.W.3d 552, 556 (2002). A waiver is present where civilian clothing is offered to the defendant and he refuses to change. Id.] e.g., Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003); Holloway v. State, 260 Ark. 250, 539 S.W.2d 435 (1976) (holding that the defendants waived their right not to be tried in prison garb where they twice rejected the trial court’s offer to change clothes).
The State has the burden of establishing that the accused has waived his right not to be tried in prison garb, and all doubts must be resolved in favor of the individual rights and constitutional safeguards. Box, supra. Furthermore, where an accused is tried in prison garb, his right to a fair trial is placed in serious jeopardy; thus the need to accommodate the jury and to save time cannot be paramount. Id. Finally, grounds for reversal are present where the defendant is required, against his will, to wear identifiable prison attire during trial, notwithstanding a lack of proof that he suffered prejudice. Id.
In Washington v. State, 6 Ark. App. 23, 637 S.W.2d 614 (1982), we held that the defendant waived his right not to be tried in prison attire, where he told the bailiff that he did not want to change before the trial. Later, when asked by the trial judge if he wanted to wear the orange prison jumpsuit, the defendant replied, “wear the jumpsuit.”
Flere, the State put on evidence of Croston’s waiver through testimony by the bailiff, Art Noel. The testimony and colloquy concerning the waiver in its entirety is as follows:
State: Additionally it is my understanding that the bailiff went to pick up Mr. Croston. They had civilian clothes ready for him over there. He refused to change clothes. He informed them that he wasn’t coming to court; they could issue a failure to appear. Basically he said, he did not want to participate in our activities today. They brought him over in shackles and jail attire and I would ask that he remain that way. He was afforded an opportunity to come over in civilian clothes. He has chosen not to do that. We have a jury out there and we are ready to go.
Defense Counsel: We object to Mr. Croston appearing in jail attire and shackles. We would like to have the Court explain to him that he, at least, has the option of reviewing his thoughts along those lines.
Court: In regard to the jail attire matter, it is my understanding that Mr. Croston was provided with civilian clothes and refused those clothes.
State: The bailiff is here if you would like to hear testimony about what actually occurred.
Bailiff Noel: At some point this morning Mr. Croston was afforded the opportunity to dress in civilian clothing. They were not his clothes, they were provided by the 309s that are here. According to Sergeant Mc-Coombs, Mr. Croston stated that it was not his attire and he was not going to wear it and that he was not coming to court just give him a failure to appear. So, he refused to put on the civilian clothes and gave the jailer notice he did not want to come to court. I have not had any problem getting him to court this morning, he has complied. He told me he wasn’t coming over and that he did not want to be in front of a jury without his clothes and that if I was going to make him come it would require force. I replied that if force was needed then it would be used and he did not want to go that route. He was afforded the opportunity to wear civilian clothes.
Croston: The clothes were too small.
Court: He at first refused to come to court and even offered to have a failure to appear issued?
Noel: Yes.
Court: Does counsel have any questions for Officer • Noel?
Defense Counsel: Again, I would request that Court to allow Mr. Croston to reconsider his demand and put on civilian clothing. I think he surely realizes it’s not going to help the situation to be here in jail attire.
Court: Does the State have any argument?
State: We have a jury sitting out there and he has been given a chance. He knows what is going on and this is his third jury trial. The defendant cannot cause his own delay or mistrial.
Court: I think he has been afforded the opportunity at 8:30 this morning and he turned the opportunity down and voiced concerns that he did not want to come at all. He overcame his refusal to come because he is here. At this point in time he will go to trial in jail attire. You are talking about an hour delay by the time you get back over and given the fact that Mr. Croston has been down this road before at least three other times, he is well aware of how it operates. At this point in time he will go to trial in jail attire. He refused to put on civilian clothes when offered prior to arriving at court so he will go to trial in his jail attire.
Croston: They were two sizes too small.
After the State put on evidence of Croston’s refusal to change into the civilian clothing provided to him, Croston’s counsel presented no evidence to dispute the refusal. While Croston’s counsel asked the trial court to “explain” to Croston that he should “review his thoughts along those lines” and to allow Croston to “reconsider his demand” and put on civilian clothing, he did not request a continuance to obtain replacement clothing, or, as in Box, supra, elicit any testimony or make any argument regarding the clothing provided to Croston, whether it was appropriate for trial, whether alternate clothing was either available or on the way, or where it would be coming from. Croston’s ambiguous interjections neither constitute evidence nor indicate the desire on his part to change his mind even if they are considered as such. Here, the State put forth evidence of a waiver by Croston, and counsel failed to present any evidence or even make an argument that disputed the waiver.
Croston also argues that the trial court erred in allowing the State to introduce evidence of incriminating statements made by him to Bailiff Noel, in violation of rights secured to him under the federal Constitution. As an introductory matter, Croston’s objection to the trial court did not include a claim of violation of his Fifth, Sixth, and Fourteenth Amendment rights or that he was interrogated in the absence of counsel by Bailiff Noel. Croston merely objected to the officers testifying as to how they came to know him. Croston did not object to the testimony that was later given by Bailiff Noel in regard to his incriminating statements.
It is well settled that the appellate courts will not hear arguments or errors, even constitutional ones, which were not raised at the trial court level by means of a timely, specific objection. Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999); Ussery v. State, 308 Ark. 67, 822 S.W.2d 848 (1992); McGhee v. State, 82 Ark. App. 105, 112 S.W.3d 367 (2003) . Because Croston did not make a timely specific objection as to the introduction of the incriminating statements made to Bailiff Noel in absence of counsel, this argument was not preserved for our review. Therefore, we cannot consider this argument on its merits.
Affirmed.
Glover, Vaught, and Crabtree, JJ., agree.
FIart and Bird, JJ., dissent. | [
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Robert J. Gladwin, Judge.
In this one-briefcase, appellant, Concrete Wallsystems of Arkansas, Inc. (Concrete), appeals from the trial court’s refusal to strike the answer of appellee, Master Paint Industrial Coating Corporation (Master Paint), and from the trial court’s dismissal of Concrete’s complaint for lack of jurisdiction over Master Paint. We reverse and remand on both points.
There is no material dispute as to the relevant facts. Concrete is an Arkansas corporation, and Master Paint is a Kansas corporation with no offices, agents, or employees in Arkansas. On or about September 2, 2003, Concrete agreed to purchase a stucco-like product from Master Paint. At various points, Concrete’s representatives went to Kansas, where they wrote a postdated $13,400 check to pay for their purchase, received training on the application of the product, and made arrangements to pick up materials and equipment. A Master Paint representative made one trip to Arkansas to instruct Concrete on the application of the product.
Concrete used the product to build a wall around a subdivision in Garland County. However, according to Concrete, the product did not perform as represented and Master Paint failed to correct the problem, despite promises to do so. As a result, Concrete stopped payment on the $13,400 check. When that occurred, Master Paint filed a materialman’s lien in Garland County on the realty where the product was used. Attached to the filing was an invoice showing that Concrete owed Master Paint $13,400.50.
Thereafter, Concrete filed a complaint against Master Paint in Garland County Circuit Court, alleging that Master Paint’s sale of a defective product and subsequent filing of a lien caused Concrete to suffer damages in excess of $17,000. Master Paint was served on June 25, 2004, and filed a timely answer questioning Arkansas’s jurisdiction over it. However, the answer was filed on Master Paint’s behalf by its president, Forouhar Vahdat, who is not an attorney. As a result, Concrete moved on January 6, 2005, to strike the answer. Master Paint then hired an Arkansas attorney, who filed an amended answer on February 11, 2005, urging that the complaint be dismissed for lack of personal jurisdiction.
Following a hearing, the trial court imposed a $500 sanction on Master Paint rather than grant what it called the “extreme relief’ of striking the answer. The court then granted Master Paint’s motion to dismiss for lack of personal jurisdiction, noting that Master Paint owned no real property in Arkansas; had no employees, subsidiaries, representatives, or satellite offices in Arkansas; and had made only one brief visit to Arkansas for training purposes. The court also ruled that Master Paint’s lien filing in Arkansas did not create a basis for personal jurisdiction. Concrete now appeals from the denial of its motion to strike and from the trial court’s dismissal of its complaint for lack of personal jurisdiction.
We first address Concrete’s argument that the trial court should have stricken Master Paint’s initial answer, which was filed by its president, Forouhar Vahdat. We agree that the answer should have been stricken. Under Arkansas law, a corporation must be represented by a licensed attorney; it cannot be represented by a corporate officer who is not a licensed attorney. See, e.g., All City Glass & Mirror, Inc. v. McGraw Hill Info. Sys. Co., 295 Ark. 520, 750 S.W.2d 395 (1988); Roma Leathers, Inc. v. Ramey, 68 Ark. App. 1, 2 S.W.3d 82 (1999). Further, our supreme court has held that a pleading filed by one who is not licensed to practice law in Arkansas is a nullity and that the unauthorized filing is not an “amendable defect.” Preston v. Univ. of Ark., 354 Ark. 666, 677-78, 128 S.W.3d 430, 436-37 (2003) (citing Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002)). Thus, while we understand the trial court’s concern about imposing an extreme measure on Master Paint, the above authorities require that Master Paint’s initial answer be stricken. It was filed by a person who was not authorized to practice law and was consequently a nullity, and this infirmity was not cured by the subsequent filing of an answer by retained counsel. We therefore conclude that the trial court erred on this point.
The practical application of our ruling is that Master Paint now has no initial responsive pleading of record other than its amended answer, which was filed more than seven months after Master Paint was served with process, making it untimely. See Ark. R. Civ. P. 12(a)(1) (2005) (allowing a non-resident thirty days from the time of service in which to file an answer or other initial responsive pleading). Nevertheless, Master Paint’s defense of lack of personal jurisdiction remains viable and must be addressed in this appeal. Even an untimely answer may be adequate to preserve the defense oflack ofpersonal jurisdiction, where, as here, it raises that defense. See Dunklin v. First Magnus Fin. Corp., 79 Ark. App. 246, 86 S.W.3d 22 (2002); J&V Rest. Supply & Refrig., Inc. v. Supreme Fixture Co., 76 Ark. App. 505, 69 S.W.3d 881 (2002).
Under Arkansas’s long-arm statute, our courts have jurisdiction of all persons and causes of action to the maximum extent permitted by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Ark. Code Ann. § 16-4-101(B) (Repl. 1999). We determine whether jurisdiction can be exercised over a nonresident defendant by ascertaining whether the defendant has established sufficient minimum contacts with the State of Arkansas, such that the assumption of jurisdiction does not offend traditional notions of fair play and substantial justice. See Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945); Davis v. St.Johns Health Sys., Inc., 348 Ark. 17, 71 S.W.3d 55 (2002). Additionally, attention must be paid to the quality and nature of those contacts and to whether the nonresident, through those contacts, has enjoyed the benefits and protections of Arkansas laws. See Davis, supra.
We also take into account whether the nonresident’s conduct and connection with Arkansas are such that he can “reasonably anticipate being haled into court” here, World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980), and whether he has purposefully directed his activities toward Arkansas residents or availed himself of the privilege of conducting activities in Arkansas. See Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985); John Norrell Arms, Inc. v. Higgins, 332 Ark. 24, 962 S.W.2d 801 (1998). Finally, our supreme court has recognized that personal jurisdiction may be exercised over a nonresident even though he has had only one contact with the forum state. John Norrell Arms, Inc., supra (citing Burger King Corp., supra).
After considering the foregoing principles, we conclude that the trial court erred in dismissing Concrete’s complaint for lack of personal jurisdiction. Although Master Paint had few, if any, ordinary business contacts with Arkansas, it had one contact that was sufficient to subject it to the jurisdiction of our courts — it filed a lien in the Garland County Circuit Court on real property located in Arkansas. In doing so, Master Paint invoked the jurisdiction of the State of Arkansas for its own benefit and sought the assistance and protection of our courts and laws in resolving its controversy with Concrete, an Arkansas company. The lien filing also shows that Master Paint purposefully directed its activities at the State of Arkansas and availed itself of the privilege of conduct ing activities here. See Burger King Corp., supra; Davis, supra. Further, because a lien filing is often a prelude to further litigation, see, e.g., Ark. Code Ann. § 18-44-127 (Repl. 2003) (providing that a court shall ascertain by fair trial the amount of indebtedness for which the lien is prosecuted and may render judgment), Master Paint could reasonably anticipate being “haled into court” in Arkansas. World-Wide Volkswagen Corp., supra. Under these circumstances, the Garland County Circuit Court’s exercise of jurisdiction over Master Paint would not offend traditional notions of fair play and substantial justice, as required by the Due Process Clause of the Fourteenth Amendment. See Int’l Shoe Co., supra.
Before leaving this issue, however, we believe it is necessary to distinguish the case of John Norrell Arms, Inc., supra. There, an Oklahoma resident, Higgins, obtained an Oklahoma judgment against an Arkansas resident, Seslar, and registered the judgment in Carroll County, Arkansas. Thereafter, Higgins was sued in Pulaski County by a third party, Norrell Arms, who asserted ownership of some of the goods that were the subject of the Oklahoma judgment. Higgins successfully challenged the Pulaski County court’s jurisdiction over him, and our supreme court affirmed, ruling that Higgins’s registration of the Oklahoma judgment in Arkansas was but a “brief encounter” that would not merit the exercise of jurisdiction over Higgins. John Norrell Arms, Inc., 332 Ark. at 29, 962 S.W.2d at 804.
Despite the similarity between John Norrell Arms and the present case, there are significant differences between the two. First, we observe that the present case involves a lien on real property that is irrevocably situated in the State of Arkansas. The subject of the court filing in John Norrell Arms was moveable, personal property that, according to the Pulaski County court, might no longer have been in Arkansas. More importantly, there is no indication that, when the nonresident in John Norrell Arms filed his foreign judgment in Arkansas, he could reasonably anticipate becoming embroiled in other litigation here. By contrast, Master Paint’s lien filing in this case was directed at a party with whom it had an ongoing business dispute, and Master Paint invoked the jurisdiction of the Arkansas courts to resolve that dispute. Additionally, as we stated earlier, the filing of a lien often precedes further litigation. See, e.g., Ark. Code Ann. § 18-44-127 (Repl. 2003). The filing of a foreign judgment, on the other hand, occurs at the conclusion of litigation and is frequently a mere collection device employed after the issues have been resolved.
In light of the foregoing, we reverse the trial court’s refusal to strike Master Paint’s original answer, and we reverse its dismissal of Concrete’s complaint for lack of personal jurisdiction. The case is remanded for further proceedings consistent with this opinion.
Pittman, C.J., and Baker, J., agree.
The court stated that the $500 was to be paid as an attorney fee to Concrete. This was apparently an exercise of the court’s contempt power. See Ark. Code Ann. § 16-22-209 (Repl. 1999), which provides that every person who shall attempt to practice law without being licensed shall be deemed guilty of contempt and punished accordingly. | [
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Melvin Mayfield, Judge.
This is an appeal from a judgment holding that appellee is entitled to a lien for materials and labor supplied to repair a motel located upon certain described real property. The repair work was performed at the request of the owners of the property; however, before this suit was filed, the property had been purchased by the appellants. The previous owners, who had contracted for the repairs, were not made parties to the present suit, and the judgment in this case is in rem against the property.
The first issue on appeal is whether the lien was timely perfected. Ark. Code Ann. § 18-44-101 (1987) provides that any person who furnishes material or labor for a building shall have a lien upon the building, or improvement, and the land upon which it is located, to secure payment for the work or labor furnished. Ark. Code Ann. § 18-44-117 (1987) provides that a person “who wishes to avail himself’ of the right to this lien must file, in the office of the circuit clerk of the county where the land is located, a verified account of the material or work furnished and a description of the land upon which the building is located. This account must be filed within 120 days after the material or work is furnished. Ark. Code Ann. § 18-44-119 (1987) provides that an action to enforce the lien must be filed within 15 months after the lien is filed. However, a suit filed within the 120 days will also perfect the lien. See National Lumber Company v. Advance Development Corp., 293 Ark. 1, 12, 732 S.W.2d 840, 846, (1987).
In the instant case it is admitted that the complaint was filed on the 122nd day after the last material or work was furnished. The parties also agree that the 120th day fell on a Saturday and that the suit was filed the next Monday. The trial court held that the suit was filed within the time in which the lien could be perfected. To sustain that holding, the appellee argues that the issue is controlled by Rule 6(a) of the Rules of Civil Procedure which states, in part, as follows:
(a) Computation: In computing any period of time prescribed or allowed by these rules, by order of the Court or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, or legal holidays shall be excluded in the computation. [Emphasis added.]
The appellants do not agree. They argue that the lien statute is plainly written and means what it says. They argue that Ark. R. Civ. P. 6 (2) does not apply because of Ark. R. Civ. P. 81 (a) which provides as follows:
(a) Applicability in General. These rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this State except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.
We agree with the appellee. Although the Arkansas Supreme Court held in Union National Bank v. Nichols, 305 Ark. 274, 807 S.W.2d 36 (1991), that Ark. R. Civ. P. 6(a) did not apply in that case, we think the situation there was different from the situation in the instant case. Nichols involved Act 53 of 1987 which provided a method for “the liquidation of defaulted mortgage loans” without the necessity of filing a suit for foreclosure. That procedure is codified by Ark. Code Ann. §§ 18-50-101 to -116 (Supp. 1989). It allows a sale of the mortgaged property (without filing suit) under certain conditions. Included are (1) that notice of default and intention to sell has been filed with the recorder of the county in which the property is situated, and (2) that the notice has been mailed by certified mail, within 10 days of the recording, to the mortgagee. See Ark. Code Ann. §§ 18-50-103(3) and -104(b) (Supp. 1991). Our supreme court held that under the provisions of Ark. R. Civ. P.81 (a) the Arkansas Rules of Civil Procedure did not apply to the method to be used in computing the time within which the notice had to be mailed. Thus the method set out in Ark. R. Civ. P. 6(a) did not apply in that case.
However, in the instant case we are concerned with the time within which a suit in a civil proceeding had to be filed in order to perfect and enforce a lien. The lien was created by a statute which required that a verified account or a suit be filed within 120 days after the last material or labor was furnished, but the statute did not provide that a certain method or procedure be used in computing the 120 days. Thus, Ark. R. Civ. P. 81 (a) does not exclude the use of Ark. R. Civ. P. 6(a) in computing the statutory 120-day period within which the complaint in this civil proceeding had to be filed in order to perfect and enforce the statutory lien involved in this case.
Under Ark. R. Civ. P. 6(a), the day of the act or event (here, the last day that material or labor was furnished) shall not be included in computing the time period involved, but the last day of the time period shall be included unless it is a Saturday, Sunday, or legal holiday. Therefore, since the 120th day fell on Saturday, the complaint filed on the next Monday was within the 120-day period when computed under the provisions of rule 6(a).
The appellants also argue that the trial court erred in allowing attorney’s fees to the appellee. The parties agree that the fees were allowed under the authority of Ark. Code Ann. § 16-22-308 (Supp. 1991), which provides as follows:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.
The appellants are correct in their contention that the general rule in this state is well established that attorney’s fees are not allowed except when expressly provided for by statute. Barnett v. Arkansas Transportation Company, 303 Ark. 491, 798 S.W.2d 79 (1990). But the appellee argues that the above statute does expressly provide for the attorney’s fee allowed in this case. Another consideration, pointed out by the appellants, is that they did not make a contract with the appellee for the work or material furnished for the motel; that the contract or purchase was made by the previous owners and this suit is a suit in rem against the property. The appellee contends, however, that the above statute provides for attorney’s fees in suits “to recover on” contracts and this is a suit to recover on a contract for goods or services.
We think the issue turns on the fact that the only recovery that can be made in this case is under the statute that grants a lien against the property for the materials and labor furnished. That statute, Ark. Code Ann. § 18-44-101 (1987), simply does not provide that the supplier of the materials or labor shall have a lien for attorney’s fees. Since the general rule in Arkansas requires specific statutory authorization before attorney’s fees are recoverable, cf. Bryant & Sons Lumber Co. v. Moore, 264 Ark. 666, 573 S.W.2d 632 (1978) (statute allows contractor a lien for materials and labor furnished but not for his profit), we believe the trial court erred in allowing those fees in this case.
Finally, the appellants contend that the trial court erred in allowing prejudgment interest at the rate of 10%. The appellee concedes that the rate should have been 6%. Therefore, the prejudgment interest is reduced to 6%.
Affirmed as modified, and remanded for further proceedings as needed to enforce the lien involved in this case. | [
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Elizabeth W. Danielson, Judge.
In this workers’ compensation case, appellant Levi Strauss & Company appeals the decision of the full commission, which found that appellee Ramona Laymance was entitled to temporary partial disability during her healing period, when she was also drawing unemployment benefits. The commission also found that appellee was entitled to permanent partial disability equal to 3 % to the hand. We affirm.
Appellee began working for appellant on February 22,1986, and her duties involved “stitching vents.” Later that year, appellee was assigned a different duty, “hanging collars,” which caused swelling and pain in the middle finger of appellee’s left hand. Appellee was diagnosed by Dr. McCollum as having tendonitis and was later released to return to work. Upon her return, appellee went back to “stitching vents,” but in September of 1987, was again assigned to “hanging collars.” On December 24, 1987, appellee again complained of pain in her finger and returned to Dr. McCollum for treatment.
Following Christmas vacation, appellee returned to work on January 4, 1988. She continued to work for appellant until January 15, 1988, when she was terminated for failure to meet her production quotas. Appellee applied for unemployment insurance benefits, which commenced on January 30, 1988, at a rate of $114.00 per week.
On February 9, 1988, appellee returned to Dr. McCollum and was referred to Dr. Garbutt, who diagnosed appellee as having “stenosing tenosynovitis” of the left long finger. Outpatient surgery was performed on May 26, 1988. As of the date of her hearing, appellee had not been released by Dr. Garbutt.
Appellee filed for workers’ compensation benefits, contending that she was entitled to temporary total disability benefits from January 15,1988, to a date yet to be determined, or at least to temporary partial disability benefits during the period in which she was drawing unemployment benefits. Appellant contended Dr. Garbutt’s treatment was unreasonable and unnecessary. Appellant also contended that appellee was not temporarily totally disabled, but that if she were found to be temporarily totally or partially disabled, she was disqualified from receiving workers’ compensation benefits because she had been drawing unemployment benefits during that time. Appellant bases this argument on Ark. Code Ann. § 11-9-506 (1987), which deals with limitations on compensation for recipients of unemployment benefits.
The administrative law judge found that Dr. Gar butt’s medical treatment was reasonable and necessary and that, although appellant was temporarily totally disabled from January 15,1988, to a date yet to be determined, she was disqualified from receiving any benefits subsequent to January 30, 1988, because she was drawing unemployment benefits during this time.
On appeal, the full commission reversed the decision of the administrative law judge on the issue of the denial of temporary total disability benefits. The commission found that Ark. Code Ann. § 11-9-506 does not preclude temporary partial disability benefits when a claimant is also receiving unemployment benefits during the same time. The commission reasoned that appellee’s disability was not total during that time period and that she did have some physical capacity for work, as evidenced by her work for respondent in January 1988 and her receipt of unemployment benefits. Therefore, the commission determined, appellee was entitled to compensation for temporary partial disability during that time. Upon remand, the administrative law judge offset the amount of appellee’s weekly unemployment benefits ($114.00) against the amount of workers’ compensation benefits for the temporary partial disability that she would have been entitled to ($147.39) and awarded appellee the difference ($33.39) for the period from January 30, 1988, through June 28, 1988. The administrative law judge also determined that appellee was entitled to permanent partial disability benefits equal to 3 % to the left hand as a whole. The full commission incorporated its previous decision and affirmed the decision of the administrative law judge.
Appellant’s first contention is that the award of temporary partial disability is not supported by substantial evidence and is contrary to the provisions of Ark. Code Ann. § 11-9-506 (1987). This statute provides that “no compensation in any amount for temporary total or permanent total disability shall be payable to an injured employee with respect to any week for which the injured employee receives unemployment insurance benefits. . . .” The issue before us is whether § 11-9-506 precludes compensation for temporary partial disability during the same time period unemployment benefits are received.
The first rule in interpreting a statute is to construe it just as it reads by giving words their ordinary and usually accepted meaning. Arkansas Vinegar Co. v. Ashby, 294 Ark. 412, 743 S.W.2d 798 (1988). Provisions of the Arkansas Workers’ Compensation Act are construed liberally in favor of the claimant. Id. The commission found, and we agree, that the statute by its language is limited to temporary total disability and permanent total disability. If the legislature had intended to preclude receipt of temporary or permanent partial disability benefits, the statute could have easily been so worded.
Appellant argues that this award allows a claimant to represent himself to one administrative body as “ready, willing, and able to work” in order to draw unemployment benefits, and then present himself to another administrative body as “unable to work” in order to draw workers’ compensation benefits. In the following excerpt, Larson explains why the two positions are not necessarily inconsistent:
At first glance the two positions may appear mutually exclusive; but the inconsistency disappears when the special meaning of disability in workmen’s compensation is remembered, involving . . . the possibility of some physical capacity for work which is thwarted by the inability to get a job for physical reasons. Thus, the injured claimant may honestly represent to the Employment Security Office that he is able to do some work, and with equal honesty tell the Compensation Board later that he was totally disabled during the same period since, although he could have done some kinds of work, no one would give him a job because of physical handicaps.
2 Arthur Larson, The Law of Workmen’s Compensation § 57.65 (1992). We affirm the finding of the commission that Ark. Code Ann. § 11-9-506 does not preclude receipt of temporary partial disability benefits. We recognize that there appears to be a discrepancy in the offset formula set out by the commission and that which was actually employed by the administrative law judge, but we do not address this issue as it was not raised by the parties.
Appellant’s second contention is that the commission erred in finding appellee is entitled to permanent partial disability benefits in the amount of 3 % to the hand instead of 3 % to the left long finger. Although the injury was to appellee’s left long finger in particular, Dr. Garbutt’s medical report found that appellee had a 3% permanent partial impairment to her left hand. Appellee testified that her disability includes her entire left hand. When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the commission’s findings and affirm if those findings are supported by substantial evidence. Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991). Dr. Garbutt’s findings and appellee’s testimony regarding her disability constitute substantial evidence to support the findings of the commission.
Affirmed.
Jennings, J., agrees.
Rogers, J., concurs. | [
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Melvin Mayfield, Judge.
Appellant, Wayne Mikkelson, brings this appeal from the trial court’s order granting appellee’s motion for a new trial.
Appellant originally brought suit against the appellee, seeking recovery of certain sales commissions. Appellee, Thomas Willis d/b/a Leisure Time RV Sales, counterclaimed, and the case proceeded to trial in municipal court. Following an adverse ruling, the appellant perfected an appeal to circuit court, and trial was set for December 10, 1990. On the day of the trial, appellee and his attorney, whose partner had been present earlier at docket call and had announced appellee was ready for trial, were absent from the courtroom when the time came for the trial to begin. Appellant presented his testimony, and the circuit judge granted him judgment for the relief prayed for in his complaint.
The judgment for the appellee was filed on January 2,1991, and on January 11, 1991, appellee filed a motion to set aside the judgement and asked for a new trial. Appellee explained that his absence at the time his case was called was a result of the cases ahead of his either being settled or otherwise dispensed with more quickly than expected. The circuit judge denied appellee’s motion by order dated January 24, 1991, but on February 1, 1991, entered another order, which set aside the earlier denial and granted appellee a new trial. The new trial was held on April 1, 1991, and the appellant’s claim for payment of sales commissions was denied.
Appellant’s sole point on appeal is that the trial court erred in vacating its judgment of January 2, 1991, and granting a new trial. The appellant contends that the only basis for the setting aside of a judgment are found in Arkansas Rules of Civil Procedure 59 and 60 and that the grounds set out therein for granting a new trial were not present in the case at bar.
The case of Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991), is cited in support of appellant’s argument. Without discussing that opinion in detail, we simply note that the Phillips v. Jacobs case seems to have drastically limited the trial court’s authority to grant a motion for new trial. However, for another reason, we cannot reverse the trial judge’s order granting a new trial in the case before us.
We first point out that the judgment rendered at trial on December 10, 1990, is inaccurately termed a default judgment. The judgement was not rendered on the basis of appellee’s failure to respond to the appellant’s complaint but was based upon the appellant’s presentation of evidence to the court on the day of trial and was therefore a judgment on the merits. See Farmers Union Mut. Ins. Co. v. Mockbee, 21 Ark. App. 252, 254-255, 731 S.W.2d 239, 240 (1987).
We next point out that Arkansas Rule of Appellate Procedure 2(a)(3) provides that an order which grants or refuses a new trial is an appealable order. Rule 4(a) states that a notice of appeal shall be filed within thirty days from the entry of the judgment, decree, or order appealed from. In the present case, the appellant chose not to appeal the order dated February 1, 1991, which granted a new trial, but instead submitted his case again to the jurisdiction of the circuit judge on April 1,1991, for another trial on the issues. Appellant is now bound by that election and is limited on this appeal to a consideration of the issues decided at the subsequent trial. See Day v. Day, 20 Ark. App. 48, 50, 723 S.W.2d 378, 380 (1987).
At one time, an order which granted or denied a motion for new trial was not an appealable order unless the notice of appeal contained an assent by the appellant that, if the order granting new trial was affirmed, judgment absolute would be rendered against appellant. See Ark. Stat. Ann. § 27-2101 (Repl. 1962). At that time, it was held that the failure to comply with the provisions which would make the order granting a new trial a final and appealable order constituted an election to try the case again and prevented a review of the court’s action in granting a new trial. See Etcherson v. Hamil, 131 Ark. 87, 198 S.W. 520 (1917). Act 547 of 1963 changed the law and made an order granting or refusing a new trial appealable without the assent that judgment absolute could be rendered if the order granting new trial was not reversed. See Ark. Stat. Ann. § 27-2101 (Supp. 1965). That same situation has been authorized by Rule 2 of the Arkansas Rules of Appellate Procedure. See Court’s Notes to Appellate Rule 2.
Although Appellate Rule 2(b) provides that an appeal from a final order brings up for review any intermediate order involving the merits and necessarily affecting the judgment appealed from, this does not bring up for review an order granting or denying a motion for new trial since that is now a final, appealable order and not an “intermediate” order. Examples of intermediate orders are found in Celotex Corp. v. Little Rock School District, 276 Ark. 481, 637 S.W.2d 566 (1982) (denial of motion to strike a pleading); and Jones v. Goodson, 298 Ark. 434, 768 S.W.2d 33 (1989) (order dismissing one of the garnishees).
The only issue presented in the instant case is whether the trial court erred in granting appellee’s motion for new trial. That was an appealable order, and the failure to appeal until after the case was tried a second time precludes our considering the merits of the court’s action in granting the new trial. Therefore, we affirm the judgement appealed from.
Affirmed.
Jennings and Rogers, JJ., agree. | [
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John I. Purtle, Justice.
A trial court jury found against the appellants’ claim that an overloaded extension cord caused a fire which damaged a business known as The Wishing Well and spread to businesses known as The Gift Box, B G’s Fashions, Inc., The Frame House and Mike R. Lawyer. Apparently, other businesses located in the East Plaza Shopping Center, in the vicinity of the Wishing Well, filed suits against the appellees. All suits were consolidated for trial.
On appeal it is argued: (1) the trial court erred in failing to strike the testimony of Joe Scott as to the electrical origin of the fire because he was not qualified as an expert in electricity nor fire causation and that there was no foundation for his testimony; (2) the trial court erred in allowing the testimony of Homer Justice for the same reasons set out in point one above; (3) the trial court erred in admitting certain photographs into the record; and, (4) the trial court erred in failing to allow appellants’ expert witnesses to testify as to the appellees’ exercise of reasonable care. We do not agree with the appellants on any of the four points argued for reversal.
A fire originated in the business known as The Wishing Well and spread to adjacent businesses. The other tenants in the shopping center adjacent to appellees’ business filed a complaint alleging the appellees negligently caused the fire resulting in damage to their property. The primary issue in the court below was whether the appellees negligently selected and used an inadequate extension cord which caused the fire.
We will first deal with the argument that appellees’ witnesses, Joe Scott and Homer Justice, were not qualified to testify on the subject matter. Mr. Homer Justice testified that he had been an active electrician for more than 40 years, and that he was presently a licensed master electrician and had been so licensed for 15 to 20 years. Some of the jobs that he had worked on as an electrical supervisor or contractor were Simmons Bank, National Bank, Woolworth, Southern Federal, Pinecrest Cotton Mill, Hudson Pulp, Weyerhaeuser, and various schools in the Pine Bluff area. He further testified that he graduated from an electrical school in Chicago in 1939. Following graduation he wired R.E.A. houses, Jacksonville Ordinance Plant, Pine Bluff Arsenal, Ford Leonardwood, Missouri, and Camp Walters, Texas. He also testified he operated his own company for eight or nine years. Before that he was employed by A & M Electric and Fagan Electric. His duties generally included being in charge of electrical installation in the buildings being constructed.
Joe Scott was vice-president of Pine Bluff Heating and Air Conditioning, having been in the heating and air conditioning business about 20 years. Mr. Scott attended a vo-tech school and received electrical refrigeration training. Some of the heating and air conditioning installations that he supervised in the Pine Bluff area were Simmons Bank, Simmons East, many branch banks in Pine Bluff, NBC at Broadmoor, Broadmoor Theaters, five White Hall schools and four schools in Dumas, plus a number of apartments in Little Rock and the Four-H building in Ferndale. He estimated that 90% of the knowledge required for heating and air conditioning was electrical knowledge. He stated that he had an appliance license to do internal wiring, including high voltage 440 and whatever might be in the appliance to the point of the receptacle. Primarily his work commenced at the receptacle and extended to the various appliances.
In Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980), we stated:
It is well-settled that the determination of the qualifications of an expert witness lies within the discretion of the trial court, and his decision will not be reversed unless that discretion has been abused.
Uniform Rules of Evidence, Rule 702, in regard to expert testimony, states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Rule 704 in regard to opinions on the ultimate issues, states:
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
Rule 705 in regard to disclosure of facts or data underlying the expert opinion, states:
The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
Considering the above rules of evidence and the case quoted, it is obvious that the judge properly exercised judicial discretion in allowing these witnesses to testify as they did. Also, we think he properly refused the appellants’ request to strike the testimony for the reason that these two witnesses were not qualified to testify about the matters under consideration.
The appellants also argue the court erred in allowing certain photographs to be introduced. Neither the maker of the photographs nor the person who had placed two red arrows on them were present or testified. The photographs were admitted on the basis of the testimony of Rita Scott that the photographs were an accurate representation of what The Wishing Well looked like on July 30,1979, the day after the fire. The two arrows on the photographs objected to were marked in red and pointed to the receptacle area where the extension cord had plugged into the wall. In Higdon v. State, 213 Ark. 881, 213 S.W.2d 621 (1948), we stated:
The admission and relevancy and materiality of photographs is left to the discretion of the trial judge...
In McGeorge Construction Co. v. Mizell, 216 Ark. 509, 226 S.W.2d 566 (1950), we held that the validity of photographs introduced into evidence was not objectionable merely because the witness did not take the pictures and was not present when they were taken. We stated that the test of whether photographs are admissible into evidence depends on the fairness and correctness of the portrayal of the subject. We also stated in McGeorge that the admissibility of photographs addresses itself to the sound discretion of the trial judge. We will not disturb such a ruling unless there is an abuse of discretion.
Appellants have failed to show that the photographs were misleading or prejudicial in any manner. In fact, it is obvious that they would be an aid to the jury in understanding much of the testimony presented to them. The red arrows simply point to the area where all witnesses agree the fire originated. The expert witnesses for appellees essentially testified that the fire started in the receptable and the expert witnesses for the appellants testified the fire originated in the extension cord near the receptacle where it plugged into the wall. Therefore, we think the court did not abuse its discretion in allowing the photographs to be introduced into evidence.
Finally, the appellants argue it was error for the court to refuse to allow their expert witnesses to testify that appellees did not use reasonable and ordinary care in using the extension cord to operate the refrigerator and coffee pot. The testimony was proffered and appears to be proper. As stated in Rule 704 expert testimony is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Immediately after the proffer of this evidence in chambers the appellants’ witness, Charles McKenny, took the stand and testified to the following as abstracted by appellants:
My opinion that the use of this extension cord was not reasonable or proper was based on the statements I read in the reports and everything. ... that gives me reason to believe that they weren’t exercising a due amount of care on it. I don’t know what had happened to the refrigerator before or what happened to it at this time. I’m saying that the fire started at the end of the cord by that shelf from overheating caused by an excessive pull of current. *## In my opinion, the cause of the fire was overloading of that cord.
The other expert witness after proffering his testimony testified before the jury as follows, according to appellants’ abstract:
In my opinion, the fire began on the white extension cord, 18 gauge, and overheated to the point it fed across and then fed into the board or paneling on the east side, and from there fed up and outward. *** It was heated from an internal to an outward point. *** I am satisfied that the fire started along the extension cord along the storage shelves at the receptacle area for two reasons. One is that the “V” point showed that as the point of origin. The fact that the extension cord in my opinion was burned from the inside out is important. *#* I am both master electrician and the Chief of the Pine Bluff Fire Department... some or all of the acts of Rita Scott just listed were a cause of the fire.
We think any possible error was cured by the skill of the appellants’ attorneys in obtaining exactly the same evidence in subsequent testimony by these witnesses. Therefore, we do not feel there was prejudicial error in the rejection of the proffered testimony.
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John I. Purtle, Justice.
The Pulaski County Circuit Court reversed the Alcoholic Beverage Control Board’s decision granting on-premise permits for the appellants. The trial court remanded the case to the ABC with directions to construe Ark. Stat. Ann. § 48-345 (Repl. 1977) in a manner to prevent the board from approving on-premise permits for the appellants. Appellants argue on appeal that the trial court erred in basing its decision on Ark. Stat. Ann. § 48-345 and ABC regulation 1.32 (6) (a) and further argue that the decision of the board was supported by substantial evidence. We agree with the appellants that the trial court erred in its order directing the board to reverse its prior decision.
On December 19, 1980, the appellants applied for permits to sell on premises alcoholic beverages at an establishment known as Shorty Small’s Bar & Grill. Shorty Small’s fronts onto Rodney Parham Road and on the property just to the east, across Shackleford Road, lies the Pleasant Valley Church of Christ, also abutting on Rodney Parham Road. Shackleford Road is 43 feet wide at this pohit.
On April 15, 1981, the on premises consumption permits were granted. On May 13,1981, the appellees filed a petition in Pulaski Circuit Court seeking a review of the final order of the ABC Board. Judgment was rendered by the circuit court on September 1, 1981, without considering anything except the record submitted before the ABC Board involving the hearing concerning these permits. A remand order was issued by the court stating in effect the matter was being returned to the board for a determination of Ark. Stat. Ann. § 48-345 and ABC regulation 1.32 in accordance with the construction given by the court. No specific instructions were included in the order. The appellants appeal from this order. On October 30, 1981, the appellants filed notice of appeal to the Arkansas Court of Appeals. The appellees filed a motion, January 8, 1982, to dismiss the appellants’ appeal stating such appeal was untimely. After a response by the appellants the Arkansas Court of Appeals denied appellees’ motion to dismiss. The Court of Appeals subsequently certified the case to us pursuant to Rule 29.
The facts in this case are not in issue. There is no dispute about the type of permits which appellants sought and were granted. During oral arguments both parties agreed that ABC regulation section 1.32 (6) is the regulation controlling the subject of this dispute. This regulation reads as follows:
“Permit not to be issued to premises which is less than 200 yards from church or schoolhouse. No permit for the sale of alcoholic beverages shall be issued, nor shall any existing permit be transferred, to any location within two hundred (200) yards of any church or schoolhouse. However, since the intent of this regulation is to provide protection to churches and schools and to insulate them from alcoholic beverage outlets, the Alcoholic Beverage Control Department may issue permits, with the exception of retail liquor permits, within two hundred (200) yards of a church or schoolhouse upon receipt of a written waiver from managing officials of any church or school which is situated within the above area of prohibition. In determining such distance, the measurement shall be made from the main entrance of the church or schoolhouse to the main entrance of the building of the premises sought to be permitted, measured by the shortest public thoroughfare. (Emphasis supplied.)”
It was not argued in the circuit court nor before the board that this regulation was unconstitutional. Therefore, the question relating to this regulation is simply one of construction. The ABC Board has been granted regulatory power by the Arkansas General Assembly. The critical language in this regulation is the last sentence which provides that the distance shall be measured from the main entrance of the church or schoolhouse to the main entrance of the building which houses the premises under consideration for a permit. It further states that the distance shall be measured by the shortest public thoroughfare. In the present case the appellants have designated their south door, the one farthest from the church, as their main entrance, having closed an entrance on the east end of the building. The parties agreed that the distance from this southern entrance traversing the area of the nearest thoroughfare to the main entrance of the existing church building was 648 feet. Therefore, the distance is beyond that required by the regulation.
In the case of Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979), we considered Ark. Stat. Ann. § 48-309 (Repl. 1977) and held that it defined the retail liquor business as used in relation to churches and schools. We quoted Ark. Stat. Ann. § 48-309 which is headed “Retailers permit,” the concluding sentence of which states, “All such sales shall be in unbroken packages and the same shall not be opened or the contents or any part consumed on the premises where purchased.” We now affirm the definition of the retail liquor permit as we determined it to be in Jones v. Reed.
The language of Ark. Stat. Ann. § 48-345 is obviously applicable to the retail liquor business and complements Ark. Stat. Ann. § 48-309. When the two statutes are read together it is obvious that the legislature intended to prevent retail “package” stores from operating within 200 yards of a school or church building.
The authority for all types of sales of alcoholic beverages is derived from “The Arkansas Alcoholic Control Act” (Act 108 of 1935, as amended, codified at Ark. Stat. Ann. § 48-101 et seq. [Repl. 1977]). This statute defines the terms used in the rules and regulations concerning alcoholic beverages. The enforcement of the provisions of the act were left to the Department of Alcoholic Beverage control (then Commissioner of Revenues). Ark. Stat. Ann. § 48-203 (Repl. 1977) is the statute granting the powers, functions and duties of the department. The first grant is to allow them to grant and revoke for cause permits issued under the provision of the acts. The third grant gives the commission the power to adopt rules and regulations for the supervision and control of the manufacture and sale of alcoholic beverages (except wine) throughout the state so long as such rules and regulations are consistent with the law. Pursuant to this authority the board enacted section 1.32 (6) of their regulations. As previously stated, this provision simply provides that the measurements shall be made between the main entrance of the church and the main entrance of the bar by the shortest public thoroughfare. Under this definition the distance is 648 feet.
Review of decisions by the Alcoholic Beverage Control Board is governed by Ark. Stat. Ann. § 5-713 (Supp. 1981). The circuit court reviews the record established by the board in making its decision. The court is empowered to take testimony in the event of alleged irregularities and may hear oral arguments and receive written briefs. However, in the present case the matter was considered upon remand without additional evidence. The court must either affirm the decision of the agency or remand the case for further proceedings. The court is allowed to reverse or modify the decision if it is found that substantial rights of the petitioner have been prejudiced because of administrative actions. The grounds for such action by the trial court are if the board decision is: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedures; (4) affected by other error or law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by abuse of discretion. Apparently, the trial court thought the order of the board violated the first provision enumerated above. We do not agree. A proper administrative regulation has the same force and effect as a statute enacted by the legislature and is considered valid. The words in such regulations are given their plain and ordinary meaning unless there is ambiguity. Marion County Rural School District No. 1 v. Polk, 268 Ark. 354, 596 S.W.2d 700 (1980). The Administrative Procedures Act provides for judicial review of adjudications by boards and commissions. We have previously stated that in a review of the actions of administrative boards or agencies the circuit court is limited to whether there was substantial evidence to support the action taken and our review upon appeal is similarly limited. Bank of Yellville v. First American S & L Ass’n., 276 Ark. 292, 634 S.W.2d 122 (1982). We think there is substantial evidence to support the decision of the board, and there is substantial evidence to support its decision on appeal. Therefore, the case is remanded with instructions for the trial court to withdraw its order directing the board to reconsider this matter and to enter an order affirming the action taken by the board.
Reversed and remanded. | [
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George Rose Smith, Justice.
The principal issue in this action for damage to a garage building is whether the trial court was right in refusing to enter a default judgment against the appellee, Bob Tribble, after his failure to file an answer within the time allowed. At a trial on the merits the jury found for Tribble. Our jurisdiction is under Rule 29 (1) (c).
The question is whether Tribble’s default was due to “excusable neglect” on the part of his attorney. ARCP Rule 55 (c); Sparks v. Shepherd, 255 Ark. 969, 504 S.W.2d 716 (1974). The only proof to justify the attorney’s neglect is his affidavit that he prepared a timely answer, but upon its completion his secretary put it in a place where it was covered by other papers and was not brought to the attorney’s attention until four days after its due date. If such carelessness is excusable, then any attorney can shift the responsibility for filing any pleading to his secretary by simply dictating the pleading and dismissing the matter from his mind. The trial judge clearly abused his discretion in condoning such negligence.
It is argued by the appellee that the notice of appeal was defective in referring only to the court’s denial of a motion for a new trial instead of to the original judgment on the verdict. No greater specificity was necessary. An order refusing a new trial is final and brings up for review any preceding order involving the merits. Rules of Appellate Procedure, Rule (2) (a) (3) and (b). Moreover, the appellants designated the entire record for the appeal; so the alleged defect in the notice of appeal could not have prejudiced the appellee.
Reversed and remanded for the entry of a default judgment and for the determination of damages alleged in the complaint on file when the default occurred. See S. R. Morgan & Co. v. Pace, 145 Ark. 273, 224 S.W. 483 (1920).
Dudley, J., not participating. | [
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Steele Hays, Justice.
By this appeal we are asked to decide whether the discharge of an employee by the Arkansas Livestock and Poultry Commission is subject to review under the Administrative Procedure Act. The circuit court held it to be an adjudication and, hence, covered by the act. On appeal we reverse, holding the discharge of an employee to be an administrative decision and the circuit court is without jurisdiction to review those decisions.
Appellee House had been employed for several years as a livestock inspector for the Arkansas Livestock and Poultry Commission. In October 1978 he was discharged on the ground that alcohol was interfering with his job performance, which was otherwise quite acceptable. He was later reinstated to a probationary status pursuant to a grievance proceeding but subject to immediate discharge for drinking on the job, while in uniform or in a State-owned vehicle, or for failure to regularly attend meetings of Alcoholics Anonymous.
During the probationary period appellee was notified that his employment was again terminated for drinking and for failure to regularly attend meetings of Alcoholics Anonymous. A fact-finding panel again heard testimony from several witnesses including appellee and recommended against rehiring until such time as appellee had demonstrated voluntary rehabilitation. This recommendation was adopted and appellant then filed suit in circuit court, invoking the Arkansas Administrative Procedure Act, Ark. Stat. Ann. § 5-701 through 714 (Repl. 1976), tracking his allegations of error, for the most part, in accordance with the grounds for judicial review set out in Section 13 (h) of the act.
Appellant commission moved to dismiss the complaint on the ground that the termination of an employee is not an “adjudication” within the meaning of the act, which the court declined to grant, holding instead there was no substantial evidence to support appellee’s termination.
For reversal, appellant contends employee terminations are not subject to review under the Administrative Procedure Act and the trial court erred in not dismissing appellee’s complaint for lack of jurisdiction and second, appellee’s dismissal was supported by substantial evidence. We need not reach the second point, as the first point must be sustained.
It seems too obvious for serious argument that the Administrative Procedure Act, enacted in 1967, was never designed nor intended to create supervisory responsibility by the judicial branch of state government over the day-to-day actions of the executive branch, including the hiring and firing of personnel, but, rather, to establish procedures for hearings and notice (which meet due process requirements) in those functions of the executive branch which are basically adjudicatory or quasi judicial, particularly with respect to rule making, the renewal or revocation of licenses, and where, under law, an agency of the State must make orders based on the adjudication process. But it is only in the judicial functions that the Administrative Procedure Act purports to subject agency decisions to appellate review and then only as narrowly prescribed in the act. See J. L. Williams & Son v. Smith, 205 Ark. 604, 170 S.W.2d 82 (1943). It hardly need be said that firing employees is clearly an administrative act and not a matter that involves the quasi judicial function of an agency. If firing is subject to judicial review then we can think of no logical reason why hiring should not be also. And if hiring is, it follows that promotion would also come under our purview, and so on and on.
In Sikes v. General Publishing Co., Inc., 264 Ark. 1, 568 S.W.2d 33 (1978), we reviewed the fundamental distinction between administrative rulings and judicial functions in the separate branches of government, observing that appellate review under the act is confined to adjudications, which Webster defines as “a judicial determination” (New International Dictionary, 2d ed., 1939). Obviously, when and under what circumstances an agency, employee should be terminated is not a judicial function, but a basic and perfunctory part of the administrative routine of an agency in its discharge of public business and nothing would be more inimical to the separation of powers than for the judicial branch to claim the power to monitor such decisions.
Appellee argues that where the agency appoints a fact-finding panel, gives written notice to the employee, conducts a hearing, makes findings of fact and conclusions of law and generally underakes to proceed as if a judicial function were involved, it is estopped to deny that the proceeding is an adjudication as defined in the act. Appellee has given us no authority in support of the position and we find an essential requirement of estoppel (assuming a branch of state government was subject to that doctrine of the law) is lacking. Estoppel does not dictate that one who has taken a particular course of direction must continue irreversibly on that course; it is only where one has taken a certain course or position knowing that another is relying on that course and which, if altered, would leave him exposed, or in a vulnerable or defenseless position to his detriment, that estoppel comes into play. American Casualty Co. v. Hambleton, 233 Ark. 942, 349 S.W.2d 664 (1961); Hudson v. Hudson, 219 Ark. 211, 242 S.W.2d 154 (1951). Here, appellee was not jeopardized by the grievance procedures, on the contrary, he was simply afforded an opportunity to plead his case, which he managed to do successfully the first time. And while the outcome of the second hearing was not favorable to appellee, he was not prejudiced by it. By giving the appellee the right to be heard on the issue of whether he had violated the conditions of his probation, the agency did not thereby subject itself to judicial review of what was so clearly an administrative act.
We find the circuit court was without subject matter jurisdiction, and we reverse with directions to dismiss the complaint. | [
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Robert H. Dudley, Justice.
The issue in this case is whether an affidavit for a search warrant must contain a statement that the facts alleged are based either on personal observation or on inferences deduced by the affiant or on hearsay. The affidavit is the sole basis upon which the search warrant was issued and our ruling is limited to that fact situation. The trial court held that the affiant need not assert the manner of obtaining the stated information and allowed into evidence the contraband seized under authority of the search warrant. Petitioner was then convicted of manufacturing a controlled substance in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1981). The Court of Appeals affirmed in Vanderpool v. State, 4 Ark. App. 76, 628 S.W.2d 576 (1982). We granted certiorari to review an apparent conflict in our cases. Rule 29 (1) (c).
It is the constitutionally required function of the judicial officer before whom search warrant proceedings are held to make an independent and neutral determination, based on the facts proven, of the existence of probable cause for the search. Aguilar v. Texas, 378 U.S. 108 (1964); Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). The only proof given to the issuing magistrate in this case was the affidavit and it does not state whether the affiant observed the contraband or whether he obtained the information from a third person.
In Bailey v. State, 246 Ark. 362 at 365, 438 S.W.2d 321 (1969), we stated:
If an officer swears there is contraband at a particular address there are three possibilities for the basis of his conclusion:
(1) The officer has seen the illegal object or objects. In that event his affidavit should assert personal observation; or,
(2) The officer "observed or perceived facts from which the presence of the equipment may reasonably be inferred. In that event the affidavit must recite the perceived facts so that the magistrate may judge the existence of probable cause”; or,
(3) The officer has obtained the information from someone else, for example, an informer. In that event the warrant should not issue unless good cause is shown in the affidavit (or supporting testimony) for crediting that hearsay.
That reasoning is still perfectly valid. A magistrate must determine the reliability of the assertion in the affidavit before deciding the existence of probable cause. In order to weigh reliability the magistrate must know whether the assertion is from personal observation, perceived facts or hearsay. Thus, the basis of the assertion must be stated in the affidavit in those cases where the sole evidence is the affidavit. We reverse the Court of Appeals on this issue and remand the case for a new trial.
If a magistrate determines that an affidavit is insufficient the defect can easily be cured, if the affiant has the required good cause, by putting the affiant under oath and allowing him to testify or else allowing him to execute a supplemental affidavit under oath.
The Court of Appeals, in reaching the opposite result, relied on a sentence in our case of Schneider v. State, 269 Ark. 245, at 252, 599 S.W.2d 730 (1980) which states that any statement of fact, made as such, must be taken to be within the personal knowledge of the affiant. In Schneider, supra, the affiant, a detective, stated that he had personal knowledge of the illegal drug traffic in the area and that he maintained a file upon informants and their credibility. The affiant then recited:
On February 3, 1979 (today) I spoke with William Rhodes and Phillip Bruce. Attached is a statement signed by Rhodes and which he stated to Prosecuting Attorney Ron Fields under oath that all the facts contained therein were true. (See attached statement Appendix A). Also on this date Phillip Bruce called Schneider at 782-2459 and she stated that she had a quantity of marijuana that she would sell to him at 6:30 P.M. this date. This call was recorded and the tape is attached as appendix B.
Bruce stated that the buy was to take place at her house (1800 S. 16th, Ft. Smith).
The magistrate listened to the recorded telephone conversation before issuing the search warrant. In affirming the case based on that factual situation we held that any statement of fact, made as such in the affidavit as distinguished from the exhibits attached to the affidavit, must be taken to be within the knowledge of the affiant. The sentence in Schneider, supra, should be read in its proper context. However, to prevent misunderstanding, the sentence is disapproved to the extent it might conflict with today’s opinion.
The evidence introduced in this case was seized as the result of searches of a cabin and of an open field. The search of the open field was permissible without a warrant, Ford v. State, 264 Ark. 141, 569 S.W.2d 105 (1978), but the search of the cabin required a warrant and the warrant, in turn, required a valid affidavit.
Because we reverse and remand for a new trial on the issue of failure to state personal observation, we do not reach the other points decided by the Court of Appeals.
Reversed and remanded. | [
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George Rose Smith, Justice.
This medical malpractice suit was brought by the appellees, the surviving husband and minor children of Shirley L. Jones, whose death is alleged to have been caused by the negligence of the appellant, a physician. In December, 1981, the suit had been pending for 16 months, all discovery had been completed, and the case was set for a four-day trial in February. On December 16 the plaintiffs’ attorneys, Henry & Duckett, filed a motion asking that all defense counsel — the firm of Friday, Eldredge & Clark, Phillip Malcom (the member of the Friday firm handling the case), and a Texas law firm acting as co-counsel — be disqualified from further participation in the case because Pat Brown Damon, a legal secretary who had worked for Henry & Duckett for eleven months, had become a secretary for the Friday firm, and particularly for Malcom, in November, 1981. The motion for disqualification asserted that Canons 4 and 9 of the Code of Professional Responsibility, 33 Ark. L. Rev. 643 (1980), would be violated by the lawyers’ continued participation in the case.
The trial judge, relying primarily on State of Arkansas v. Dean Foods Products Co., 605 F.2d 380 (8th Cir. 1979), ruled that defense counsel were all disqualified from proceeding further in the case, not because there was any actual impropriety but because there was a violation of Canon 9: “A Lawyer Should Avoid Even the Appearance of Professional Impropriety.” The cáse comes to this court for an interpretation of our Code of Professional Responsibility. Rule 29 (1) (c).
Preliminarily, we must pass upon the appellees’ motion to dismiss the appeal on the ground that an order disqualifying counsel is not a final order within Rule 2 of the Rules of Appellate Procedure. It is certainly not final in the sense that the case is still to be tried on its merits, but the appellant argues that we should treat the disqualifying order as falling within an exception recognized in federal procedure, by which an order is appealable if it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978).
Even though orders disqualifying counsel are a comparatively recent development in the law, the appealability of such orders has already given the federal courts much difficulty. At first it was held in some circuits that all rulings on motions to disqualify counsel were final and appealable, whether the motion was granted or denied. In at least three circuits, however, the courts of appeal have overruled prior cases in reaching what is now the prevailing position: An order denying a motion to disqualify counsel is not appeal-able, although an order granting such a motion is appeal-able. Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980); Melamed v. ITT Continental Baking Co., 592 F.2d 290 (6th Cir. 1979); Firestone Tire & Rubber Co. v. Risjord, 612 F.2d 377 (8th Cir. 1980). The Supreme Court settled the issue by affirming, in effect, the Firestone case. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981), vacating the intermediate court’s order for want of jurisdiction, but recognizing its correctness.
In harmony with the federal courts’ conclusions, we have no doubt that an order disqualifying counsel should be appealable. This is true not only because a litigant may be erroneously deprived of representation by the counsel of his choice, but also because if the order of disqualification is not appealable the litigant will be compelled to employ other counsel and to submit to a useless trial before he learns by appeal that the disqualification order was wrong and he is entitled to start all over again.
We are fortunate, however, in not being bound, as the federal courts are, by a statute restricting appellate review to final orders. 28 U.S.C. § 1291. When our Rules of Appellate Procedure were drafted and adopted in 1978, there was no immediate necessity for either the drafting committee or the court to consider the appealability of orders disqualifying counsel. That necessity now confronts us. We are not willing, however, to embrace the federal exception to the ordinary requirement of finality — an exception that has been a prolific source of uncertainty, for who can predetermine with assurance when an issue is “important” and “completely separate from the merits of the action” and “effectively unreviewable” on final appeal? We therefore prefer the simple course of amending Appellate Procedure Rule 2 to provide that an order disqualifying counsel is appealable. A per curiam order to that effect is being entered today. For a comparable situation see Gallman v. Carnes, 254 Ark. 155, 492 S.W.2d 255 (1973).
On the merits, the proof is that before Mrs. Damon left Henry & Duckett she was cautioned not to disclose confidential information about this case. When she became a secretary at the Friday firm, she was told at the outset that she would have nothing to do with this case, for which the file was kept in Malcom’s own office. Mrs. Damon herself stated in an affidavit that she had had no contact with the case since being employed by the Friday firm, had not spoken to anyone in the firm about the case, and would not do so in the future.
Thus, there is no suggestion of impropriety in fact. Instead, appellees emphasize the language of Canon 9, that a lawyer must avoid even the appearance of impropriety. Granted. But we must keep in mind that the Dean Foods case and similar decisions have all dealt with the situation in which the lawyer himself has changed from one firm to another, with a possible conflict of interest. Here, however, it was not a lawyer but a legal secretary who changed her employment. We have no doubt that the Canon 4 duty to preserve the confidences of a client applies to all the employees of a law firm, but Canon 9 is directed specifically to lawyers and to no one else. Counsel for the appellees conceded at the oral argument that they have found no case in which a lawyer has been disqualified in circumstances similar to those now presented.
The proof demonstrates beyond question that every precaution was taken to avoid any disclosure of confidential information by Mrs. Damon and that no such disclosure occurred. Moreover, there is much testimony that temporary secretarial help is continually found to be necessary by many law firms in Pulaski County. The representative of a concern engaged in the business testified that her firm provides the temporary services of experienced legal secretaries on a regular basis to between forty and fifty law offices in the community. Twenty percent of that company’s secretaries work for from eight to ten different law firms in a year; the other eighty percent work for from two to eight firms in a year. There was also testimony that law firms prefer to employ legal secretaries with prior experience, so that permanent secretaries as well as temporary ones frequently move from one law office to another. Thus complete avoidance of a situation like that now presented is impossible.
We need not detail the abundance of similar testimony, which was uncontradicted. We are convinced that any appearance of impropriety, any presumption of impropriety, that might have arisen in this instance from Mrs. Damon’s change of jobs was effectively overcome by the undisputed testimony. The trial judge was mistaken in sustaining the motion to disqualify defense counsel.
Reversed. | [
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Richard B. Adkisson, Chief Justice.
Appellee, Bobby Goslee, filed a complaint in Garland County Circuit Court alleging that appellant, Carl Friend, an out-of-state resident, owed him $20,000 plus court costs on two promissory notes. Following appellant’s failure to answer pursuant to ARCP Rule 12 (a), judgment by default was entered. On appeal, we affirm.
Service on the complaint was had on September 28, 1981; on October 9 the court denied appellant’s motion for additional time in which to respond holding that the motion gave insufficient reasons as to why more time was needed; on October 21 appellee filed a motion for default judgment to which appellant responded by correctly stating that he was not in default because as an out-of-state resident he had 30 days to answer a complaint under Rule 12.
On October 26 appellant filed a second motion for additional time setting out the reasons why more time was needed. The court never acted on this motion and instead entered default judgment against appellant on November 5. Appellant filed his answer on November 10, and on November 18 filed a motion to set aside the default judgment. The motion was denied on January 13, 1982.
Appellant argues that the court erred in granting a default judgment because appellee’s motion for default judgment was filed before appellant was actually in default. Appellee’s motion was filed on October 21, yet appellant’s 30 days in which to answer under Rule 12 did not expire until October 28. However, the trial court did not enter the judgment until November 5, at which time appellant actually was in default; therefore, appellant’s argument is without merit.
Appellant also argues that the trial court erred in finding him in default while appellant’s second motion for additional time in which to answer was pending. A motion for additional time in which to answer does not auto matically extend the time for filing an answer under Rule 12. Since the trial court did not act upon the motion, appellant should have filed his answer within the prescribed time instead of filing it 13 days after the time had expired.
Appellant also argues that he was entitled to five additional days to reply to appellee’s response to his motion for additional time before a default judgment could be entered. This issue is resolved by our holding that the original motion did not extend the time for filing an answer.
Although we recognize that ARCP Rule 55 governs default judgments, we do not consider its applicability to this case because it was not raised in the trial court or argued on appeal.
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Steele Hays, Justice.
Appellant, a Hot Springs fireman, was involved in an accident with another vehicle during an emergency run of the city fire truck. Over appellant’s insistence that he was driving with due care, an Accident Review Committee found the collision was preventable, his speed being excessive for prevailing conditions. The committee assessed three penalty points against appellant under an Accident Review Point System and when he appealed the committee declined to reconsider its ruling.
Told that no further appeal rights were available, appellant filed suit in the Garland Circuit Court against the Accident Review Committee and the Civil Service Commission of Hot Springs, asking the court to order the commission to hear the appeal or, alternatively, to review and reverse the decision of the committee pursuant to the Arkansas Administrative Procedure Act, Ark. Stat. Ann. § 5-701 through 714.
The Circuit Court found it had no jurisdiction and granted defendants’ motion to dismiss pursuant to ARCP Rule 12 (b) (6), a failure to state facts upon which relief could be granted, and appellant has appealed. Our jurisdiction is invoked under Rule 29 (1) (f). We believe the trial court was correct and we affirm.
For reversal, appellant relies on Title 19, Chapter 16, Arkansas Statutes Annotated (Repl. 1980), entitled “Civil Service for Police and Fire Departments,” which covers appellant. Section 19-1605.1 provides that no civil service employee shall be discharged or reduced in rank or compensation without his being notified in writing and given the opportunity to request a trial before the Civil Service Commission on the alleged grounds for discharge.
Appellant concedes he was neither discharged, suspended or reduced in rank or compensation, but, he argues, the three penalty points wrongly assessed against him have increased his susceptibility to those sanctions. He points out that the Accident Review Point System provides that his privilege to drive a fire truck is subject to three months’ suspension upon an accumulation of 12 points, 6 months’ suspension upon an accumulation of 18 points, and a one year suspension for 24 points and that termination, transfer or demotion may result if suspension under the point system prevents him from performing the primary job he was employed to do, i.e. drive a fire truck.
We agree with appellant that it is possible for an accumulation of points to result in the equivalent of a discharge or reduction in rank or compensation, but we do not agree that simply because three penalty points have been assessed he can demand a trial before the commission. Section 19-1605.1 limits the right to a trial to threatened discharge or reduction in rank or compensation and nothing in Title 19 suggests the Legislature intended the Civil Service Commission, in addition to the other duties imposed, must also hear minor employee grievances. The argument that an accumulation of additional points could subject him to a reduction in rank or compensation is theoretical, and we do not render advisory opinions. See McCuen v. Harris, 271 Ark. 865, 611 S.W.2d 503 (1981). If additional points, sufficient to impose discharge or reduction, are assessed in the future (and are not abated upon six months driving free of accidents or violations, as provided in Section IV (A) of the Accident Review Point System) then appellant will be eligible for a trial under § 19-1605.1, in effect an appeal, and free to challenge any accumulated penalty points which he believes were wrongly imposed.
Appellant does not specifically rely on the Administrative Procedure Act on appeal, as he did before the trial court, but he does draw on language from the act, alleging that an inability to appeal the points imposed injures him in his business or property. But we have recently held the Administrative Procedure Act does not afford judicial review of the discharge of employees, as those determinations are administrative rather than adjudicatory. Arkansas Livestock and Poultry Commission v. House, 276 Ark. 326, 634 S.W.2d 388 (1982).
The order of dismissal is affirmed. | [
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Darrell Hickman, Justice.
Luther Price, III, was convicted of burglary and interference with a police officer and sentenced to forty years and twenty years imprisonment respectively. His sentence was enhanced because he had six prior felony convictions.
This case presents two issues, one involving an old question we have considered several times but one which continues to give prosecutors and trial courts difficulty; the other involves the newly enacted procedure for sentencing a defendant with prior convictions.
The first issue on appeal is whether there was sufficient evidence to support the conviction for interference with a law enforcement officer in the performance of his duty in violation of Ark. Stat. Ann. § 41-2804 (Repl. 1977). In three previous cases we have considered this charge and in two of them we found the evidence insufficient to support that charge. In a third case we found the facts did justify the charge. In this case two men were seen entering a dwelling and a neighbor called the police. The police responded to the call of a burglary in progress and one officer went to the front door and the other officer went to the back. The officer covering the back testified that as he approached the rear corner he observed two males leaving from the back of the residence. He yelled at them to stop and one of the men turned and fired a pistol in his direction and fired a second shot in another direction. Both men continued to flee. One of the suspects was caught in the alley and the defendant, Luther Price, was found hiding in the basement of a nearby house. The officer testified that it was Luther Price who fired the pistol at him.
The State chose not to charge Luther Price with resisting arrest and aggravated assault, which is a Class D felony, or a more serious offense, but instead chose to charge him with interference with a law enforcement officer. It is our judgment that Price was improperly charged as we have carefully explained in the cases of Breakfield v. State, 263 Ark. 398, 566 S.W.2d 729 (1978), State v. Bocksnick, 268 Ark. 74, 593 S.W.2d 176 (1980), and Gilmer v. State, 269 Ark. 30, 602 S.W.2d 406 (1980). The offense of interference with a police officer was not intended to be an alternative to charging someone with resisting arrest. In the Breakfield case the defendant resisted arrest and was charged with interference with a police officer. We pointed out that the new criminal code had a provision for resisting arrest, Ark. Stat. Ann. § 41-2803 (Repl. 1977), and that before the new criminal code there was no such statute. In the Commentary to § 41-2803 it is noted that the offense of resisting arrest is narrowly confined to the arrest situation; in other words, a situation where the police were resisted when trying to arrest the person charged. Interference with an officer in other circumstances is dealt with by §§ 41-2802 or 41-2804.
In Bocksnick we had an almost identical situation to that before us. The defendant had been taken to his parents’ home by a marshal who knew him and did not charge him although he smelled of alcohol. Later that same evening the marshal saw the defendant carrying a rifle and demanded that he surrender it. The defendant refused and threatened to kill the marshal. No attempt at that time was made to arrest him. In the meantime the defendant went to a nearby grocery store and tried to obtain ammunition. When he later went to a nearby wooded area and was ordered to surrender, he fired two shots at the officers. We found that the officers were performing no duty except trying to arrest the defendant and that a strict construction of the penal statute could only mean that the legislature did not mean for § 41-2804, interference with a police officer, to be applied in such a situation.
In Gilmer v. State, supra, a case with facts quite different from those in Breakfield, Bocksnick, or in this case, we found the evidence sufficient to support a charge of interference with a police officer. There the police officer was responding to a call to invesigate a disturbance between the defendant and another person. While the officer was en route to answer the call, the officer stopped his vehicle and the defendant attempted to fire at the officer. A scuffle occurred between the officer and the defendant. The officer did not know the defendant was the subject of the call for assistance. We held that that amounted to interference with a law enforcement officer because the fracas that occurred between the officer and the defendant was totally separate from the incident the officer had originally set out to investigate.
As we held in Gilmer the offense of interference applies only where a police officer is interfered with in the performance of his duty by someone other than whom the officer is trying to arrest. That does not mean one resisting arrest cannot be charged with other criminal offenses; he can, but not with the interference charge. It is inexplicable to us why the State persists in charging defendants with interference when it clearly can make a charge or charges against a defendant undoubtedly authorized by the criminal code.
The Commentary to the relevant statutes makes the distinction abundantly clear. The Commentary to Ark. Stat. Ann. § 41-2803 (resisting arrest) states:
Code section 41-2803 is narrowly confined to the arrest situation. Interference with an officer in other circumstances is dealt with by §§ 41-2802 or 41-2804. [Emphasis added.]
The Commentary to Ark. Stat. Ann. § 41-2804 (interference with a law enforcement officer) states:
Section 41-2804, which is directed at assaults on law enforcement officers, is much broader than § 41-2803. It is not limited to the arrest context but covers all assaults on officers acting within the scope of their office — e.g., those engaged in executing search warrants, seizing property, or serving civil process . . .
In the case before us the officer actually testified that the defendant, Luther Price, shot at him after he told him to halt and obviously after he intended to effect an arrest. The. defendant was fleeing and was resisting all efforts by the law enforcement officers to arrest him.
No doubt it is the general language of the charge of interference with the police officer that attracts the State because a liberal interpretation of the statute would allow its application to any misconduct on the part of any defendant in his relationship with an officer trying to arrest him. Such conduct would become a more serious crime. But we rejected such an interpretation in Breakfield and have continued to do so. Since there is no substantial evidence to support this charge, it is dismissed.
In order to eliminate any possibility of prejudice we must reduce the sentence to a minimal sentence for burglary by an habitual offender with four or more convictions, which is twenty years imprisonment. Conceivably the State might desire to retry Price on the burglary charge because he was charged as a habitual offender and he might not have received a minimum sentence. Unless the State elects to proceed with a new trial within seventeen days from the date of this decision, the judgment is modified to twenty years imprisonment for burglary as an habitual offender with four or more prior convictions.
The second issue involves an Act of the 1981 General Assembly, Ark. Stat. Ann. § 41-1005 (Supp. 1981). That statute provides that when a defendant is found guilty of a felony, the trial court, out of the hearing of the jury, shall hear evidence of the defendant’s previous felony convictions, determine the number of those convictions, and instruct the jury as to that number. The argument is made that this procedure is unconstitutional because it violates ARK. CONST, art. 7, § 23 by directing the trial court to charge the jury with matters of fact. We do not reach the constitutional argument in this case because there was no dispute about the prior convictions of the defendant. When facts are undisputed, the court may properly state them to the jury. Brown v. Keaton, 232 Ark. 12, 334 S.W.2d 676 (1960); Cox v. Hutto, 619 F.2d 731 (8th Cir. 1980).
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Frank Holt, Justice.
The appellant was charged by information with capital felony murder. A jury found him guilty of first degree murder and assessed his punishment at life imprisonment. Appellant first asserts the trial court erred in permitting the prosecuting attorney to argue, in the presence of the jury, the merits of admitting testimony concerning a polygraph test taken by a defense witness.
During cross-examination by the state of Dorothy Taylor, widow of the victim and sister of the appellant, the following exchange occurred:
(Prosecuting attorney): Okay. Is there any particular reason why on July 27th of ’78, eight months later, you felt compelled to come in and give these stories?
(Reporter’s Note: Mr. Butcher [Taylor’s counsel] talking with Dorothy Taylor off the record.)
Ms. Taylor: At the time I came in and told you about the drugs and the beatings and stuff and you-all were wanting me to take a polygraph test, and I agree that I had not been honest with you, so I told you about the beatings and the drugs and the other thing and then I took the polygraph test.
(Prosecuting attorney): All right. Did you pass the polygraph test?
(Defense counsel): Objection.
(Prosecuting attorney): Your Honor, this was a totally uncalled for response after advice of counsel, and if she’s gonna talk about taking a polygraph test then I’d like to get the results in.
The Court: Well, the Court will admonish the Jury to ignore any reference to a polygraph test. Under the present state of the law and the state of the art, the law does not consider polygraph examinations to be reliable and any — anything concerning a polygraph test will be ignored primarily because of the fact that a man is being charged with a crime here and we’re not going to go into polygraphs so let’s get off of that and go on to something else.
It is well recognized that any reference to a polygraph test in the absence of agreement or other justifiable circumstances would constitute error. Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980); Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981); and Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978).
The appellant argues this exchange had an adverse and prejudicial impact on his defense witness’ credibility. However, the witness, after conferring with her personal counsel, initiated the subject by making the unsolicited statement that she had taken a polygraph test. The question by the state as to the result of the test was improper. However, the appellant promptly objected to the state’s question, which was never answered. The court, sua sponte, immediately admonished the jury to disregard any reference to the test. Apparently the court’s admonition was acceptable to the appellant inasmuch as he made no objection nor asked for a mistrial. No prejudicial error is demonstrated.
Appellant asserts that the trial court’s admonishment to the jury was unclear, equivocal, and did not remove the taint of the episode. We cannot agree. Apparently, appellant did not perceive the court’s admonition as being deficient since he did not ask for a clarification nor object to the adequacy of the admonishment.
Appellant’s final contention for reversal is that the trial court erred in admitting into evidence two color photographs of the victim. He argues that the photographs were more inflammatory than informative, and they were not corroborative of any issue. He insists there was no question as to the identity of the victim, the scene where he was found, nor that an autopsy was performed. Further, appellant was willing to stipulate that the victim suffered gunshot wounds.
Ordinarily, photographs are admissible if they have any relevance. Lacy v. State, 272 Ark. 333, 614 S.W.2d 235 (1981); and Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). In order for a photograph, asserted to be inflammatory, to be excluded, the prejudice must outweigh the probative value. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979); Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979); and Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1979). Neither isa photograph inadmissible because it is cumulative or unnecessary due to admitted or other proven facts. Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980); and Spillers v. State, 272 Ark. 212, 613 S.W.2d 387 (1981). Finally, the decision to admit photographs lies within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Gruzen v. State, supra, and Robinson v. State, supra.
Here, one photograph corroborated the witness’ identification of the victim and also could fairly give rise to the inference that, after the victim suffered three fatal gunshot wounds to the head, the body was dragged to the location where it was found. The second photograph depicts a “slit” in the victim’s chin, the nature and location of which were described by the state medical examiner as resulting from a blow by a blunt instrument. In our view, the nature, extent and location of the deep gash were relevant to the questions of intent and state of mind of the appellant. Appellant’s willingness to agree that the victim suffered gunshot wounds did not relieve the state of its burden of proving every element of first degree murder which included premeditation, deliberation and intent beyond any reasonable doubt. We find no abuse of discretion.
Pursuant to Supreme Court Rule 11 (f), Ark. Stat. Ann. Vol. 3A (Repl. 1977), we have reviewed the transcript for rulings adverse to appellant and find no error prejudicial to his rights.
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Darrell Hickman, Justice.
The only real issue in this case is whether the chancellor improperly awarded alimony. We conclude that he did and reverse the decree of the chancellor.
Noel Richard Belanger and Brenda Joyce Belanger were married in New Hampshire in 1968. They lived together until they separated in 1978; at that time they were living in North Carolina. An attorney in North Carolina prepared a property settlement agreement and although the written agreement was not produced, there is no doubt that Noel Belanger signed it and that Brenda Belanger complied with it. In the agreement, the Belangers agreed to sell the houses they owned in Florida and North Carolina and split the proceeds, which they did. Each got $ 10,400 from the Florida property. Mr. Belanger got a 1978 Chevrolet and Mrs. Belanger got a 1966 Buick. They also divided other personal property. They agreed to keep two acres of real property they owned in New Hampshire.
Mr. Belanger moved to Arkansas and filed for divorce in Clay County in 1978. The chancellor awarded a divorce to Mrs. Belanger which was not contested as to grounds. After hearing the testimony of the parties, the chancellor found that the following items constituted marital property pursuant to Arkansas law:
1. $1,600 in a North Carolina savings & loan.
2. A Corvette belonging to Mr. Belanger.
3. A Chevrolet belonging to Mrs. Belanger.
4. A Ford pickup belonging to Mr. Belanger.
5. Five guns belonging to Mr. Belanger.
6. One canoe belonging to Mr. Belanger.
7. 250 shares of stock.
The chancellor ordered that if the parties could not ágree to a division of the property it would be sold and the proceeds evenly divided. Then he made an award of $500 per month alimony to Brenda for a period of forty-eight consecutive months. The chancellor said he was making this award because, “1 think the alimony award that I will make will even out what interest she might have in that property.” “That property” to which the chancellor was referring was an interest Mr. Belanger had acquired in a residence in Pocahontas, Arkansas. Mr. Belanger had .entered into a lease-purchase agreement, paid $5,000 down and agreed to pay $5,000 more six months later toward a total purchase price of $68,000. The other piece of property was a residence located in Corning, Arkansas. Legal title to the property was in the name of Mr. Belanger’s parents but the chancellor found Mr. Belanger had equitable title to it since he had made most of tbe payments.
The alimony award was used as a substitute for awarding Mrs. Belanger an interest in the real estate — and not for any other reason. Since the chancellor found that the real estate was not marital property, a division could not be made through an award of alimony. The chancellor made no findings that would justify the award according to Ark. Stat. Ann. § 34-1214 (Supp. 1981).
Mrs. Belanger’s attorney claims that the property settlement agreement was never introduced, there was no pleading or claim that it should be enforced, and, therefore, it cannot control. But that agreement and the subsequent action of the parties were the focus of the dispute, and the court no doubt considered the agreement in making his decision. Mrs. Belanger did not deny its existence; in fact she testified:
Q. Did y’all agree to divide everything between you and take what each party wanted at that point in time?
A. Yes, sir.
Q. Your answer is yes you did reach that agreement?
A. Yes, sir.
And she conceded that the agreement was carried out. The Belangers no doubt entered into an agreement in North Carolina and performed according to the agreement. Mr. Belanger took his part of the proceeds from the sale of their property, investing it in Arkansas, and Mrs. Belanger received her portion of their property. The parties were bound by their acts and neither sought to reject the division of property.
The effect of the chancellor’s alimony award is to allow Mrs. Belanger to receive her portion of the property settlement as well as all or a part of Mr. Belanger’s share of that settlement.
Consequently, the alimony award was improper and in that regard the decree is reversed and the cause remanded for any other proceedings.
Reversed and remanded. | [
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Per Curiam.
On March 16, 1981 Charles E. Lewis was convicted of possession of a controlled substance with intent to deliver. He was sentenced to a ten-year term of imprisonment and fined $2,000. He was represented at trial by Robert F. Morehead, who has never been relieved as counsel of record in the case.
Lewis, acting pro se, has filed a motion for belated appeal in which he alleges that his attorney was aware of his desire to appeal but failed to file the record in this Court. Lewis also requests that his appeal bond be reinstated and that an attorney other than Mr. Morehead be appointed to represent him on appeal.
In an affidavit filed in response to the motion, the attorney concedes that he told Lewis to get the record from the court reporter and take it to the Supreme Court Clerk. Instead, Lewis mailed the record to the attorney who then attempted to file it. Since the record was not complete, however, it was not accepted by the Clerk. Apparently, the record was subsequently completed by the court reporter but no further attempt was made to lodge it with this Court. The attorney implies that he did not seek to file the record again because his client could not decide at that point whether he wanted to pursue the appeal.
It is the duty of the attorney to see that the record on appeal is properly maintained and timely filed. Attorney Morehead’s affidavit gives no good reason for his failure to lodge the record. This Court will accept an appeal in a criminal case where to do otherwise could be a denial of the appellant’s constitutional right to effective assistance of counsel. Moore v. State, 267 Ark. 548, 592 S. W.2d 450 (1980). In this case, we must conclude that the record was not lodged by virtue of the attorney’s, error and grant Lewis’ pro se motion for belated appeal. See, our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases.
Appellant’s request to have Mr. Morehead relieved as counsel and his request to have the appeal bond reinstated are denied.
A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion for Belated Appeal granted. | [
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George Rose Smith, Justice.
In four cases we have held that when the title to land is vested in a life tenant with contingent remainders that will not vest until the life tenant’s death, a court of equity has the power upon a proper showing to order a sale of the land for reinvestment. Walker v. Blaney, 225 Ark. 918, 286 S.W.2d 479 (1956); Wing v. Wing, 212 Ark. 960, 208 S.W.2d 776 (1948); Hardy v. Hilton, 211 Ark. 991, 204 S.W.2d 163 (1947); Bedford v. Bedford, 105 Ark. 587, 152 S.W. 129 (1912). In all those cases, however, when the suit was brought there was in being a member of the class of possible remaindermen, who could be made a party to the case as the representative of other contingent remaindermen as yet unborn. In the case at bar the life tenant, Sheila Ball Curtis, age 30, has never had a child; so there is in being no member of the class comprising her bodily heirs. The question is whéther in this situation a court of equity has the power to order a sale of the land for reinvestment. We hold that the power exists and affirm the chancellor’s decree ordering a private sale of the land. (The Court of Appeals transferred the case as involving the construction of a will. Rule 29 [1] [p].)
Orbin Ball died in 1968, survived by three children. His will left various separate tracts of land to each of his children for life, with remainder to his or her bodily heirs. The will made no disposition of the possible reversion and contained no residuary clause; so the three children inherited the reversion that remained in the testator’s estate.
Sheila Ball Curtis and her husband brought this suit to obtain a sale, for reinvestment, of 120 acres of the lands left to Sheila and her bodily heirs. Sheila’s brother and sister were made parties to the case; so all the necessary parties are before the court. The sister’s two minor children were also made defendants. The plaintiffs made a sufficient showing that the 120 acres are not as productive as other investments would be and that a favorable price has been negotiated with a purchaser.
Upon the only question at issue, the rule is that a court of equity has the power to order a sale for reinvestment even though no member of the class having the contingent future interest is yet in existence. Restatement of the Law, Property, § 179 (1936); Powell, Real Property, § 292 (1981); Comment, Alienability of Contingent Remainders, 2 Ark. L. Rev. 87 (1948). Where no bodily heirs of the life tenant are yet in being, as here, the life tenant herself is a proper person to represent her unborn descendants. Restatement, § 184 (d).
The chancellor correctly ordered a sale for reinvestment, but the decree contained no directions with respect to the reinvestment. See the Walker and Bedford cases, supra. The cause is therefore remanded for further proceedings.
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Steele Hays, Justice.
Appellants, husband and wife, filed suit to recover for Ms. Jean Roy’s personal injuries and Mr. Eugene Roy’s property damage, sustained as the result of an automobile collision. The appellees admitted liability and the j ury rendered a verdict in the amount of $2,500.00 for the injuries of Ms. Roy and $2,000.00 for Mr. Roy. The single issue on appeal is whether the trial court erred in instructing the jury to disregard Mr. Roy’s testimony regarding a list of medical expenses totaling $2,977.74 because it was not supported by sufficient evidence. We cannot say the evidence was admissible as a matter of law and, accordingly, we sustain the trial court.
At trial the appellants offered no medical testimony nor did they introduce any medical bills, drug bills, receipts or cancelled checks. The only medical evidence was from the appellees. Dr. William Blankenship testified that he found no objective evidence that Mrs. Roy sustained any permanent impairment as a result of the accident. (T. 85) Mr. Roy testified that he and his attorney had compiled a list of expenses incurred by Mrs. Roy using receipts and cancelled checks; however, neither he nor his attorney produced them at the trial. On cross-examination Mr. Roy admitted that this list included expenses for drugs for his entire family, not just for his wife. (T. 57) The list was not introduced into evidence nor was it itemized by Mr. Roy’s testimony. He simply stated his wife’s medical expenses attributable to the accident totaled $2,977.74. Upon appellees’ motion to strike, the trial court directed the jury:
Ladies and gentlemen, you are instructed by the Court, that you are to disregard the testimony of the last witness, with regard to the incurrence of medical bills and expenses, in the amount of two thousand nine hundred seventy seven dollars and seventy four cents ($2,977.74).
Appellants correctly state that the reasonableness and necessity of medical expenses are questions of fact to be decided by a jury. Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970). Appellants contend the trial court improperly withheld from the jury the question of the reasonableness and necessity of medical expenses. The fallacy of the argument is that the trial court’s action here did not withhold from the jury all evidence of medical expenses but instructed the jury to disregard only Mr. Roy’s testimony concerning medical expenses because a sufficient foundation had not been laid. In Blissett, supra, Justice Fogleman stated at 247:
We also believe that the trial judge has some discretion in deciding whether there is sufficient foundation for the admission of testimony giving the amount of certain expenditures. . . .
We recognize that expert testimony by a physician is not necessary in every case to prove the reasonableness and necessity of medical expenses of an injured plaintiff. McCullough v. Ogan, 268 Ark. 881, 596 S.W.2d 356 (1980). Appellants interpret the ruling of the trial court as a breach of that rule, but we disagree. Mr. Roy failed to itemize the expenses by physician, or as to medication, or type of service, he simply presented a total amount of $2,977.74. He was unable to verify the figure and he acknowledged that it included expenses not properly recoverable from the appellees. We think the trial court found, correctly, that Mr. Roy’s testimony failed to provide a sufficient foundation in support of his wife’s medical expenses. It is within the trial court’s discretion to determine if the witness’s foundation is sufficient to support his testimony. Blissett v. Frisby, supra.
Appellants argue that the trial court denied the jury the right to consider any medical expenses. But we disagree. The appellants failed to proffer an instruction which included medical expenses as an element of her damage, even though they had presented evidence by Ms. Roy that her expenses were between 2,000 and 3,000 dollars, which would have warranted such an instruction. Had an instruction covering medical expenses been proffered by the appellants it would have been reversible error to deny it. However, it was appellants’ duty to tender such an instruction to the trial court before claiming error. Christensen v. Dady, 238 Ark. 577, 383 S.W.2d 283 (1964).
The judgment is affirmed.
Purtle, J., dissents. | [
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Robert H. Dudley, Justice.
The issue in this case is whether the holder of the possibility of reverter after a determinable fee can maintain an action for waste. The Court of Appeals has certified the case to this court as a case of significant public interest and a case of major importance. Rule 29 (4) (b) Vol. 3A (Repl. 1979).
In early 1961, appellant Union County wanted to build a hospital on a tract of land owned and occupied by appellee Union County Fair Association. On November 15, 1961, after considerable negotiations, the parties entered into an agreement by which the county would pay $57,904.00 to the association for its land. The association would use $8,500.00 of the money to purchase 26 acres from the American Creosoting Corporation for a new fairgrounds. Title to the new fairgrounds would be in appellant Union County, but “it is hereby agreed and covenanted that the ... Association may use said property so long as a County Fair is held and the said property sights [rights] hereby created shall not forfeit unless no Fair is held for a period of at least two consecutive years.” The association agreed to spend “an additional sum of at least $20,000.00 of its money on new buildings for fair purposes.” The county agreed to open a street on the south line of the new fairgrounds, to place gravel on an area designated for parking and to provide a covered grandstand with a capacity for seating at least 500 persons.
Simultaneously, the association entered into a contract with T. R. Williamson for the construction of buildings on the soon-to-be acquired fairgrounds. The contracted cost of this construction was $69,404.00. Of this amount, $49,404.00 would come from the money the association would receive from the county for the old fairgrounds, and $20,000.00 would come from the association’s separate funds. The county, in an unspecified capacity, also executed the construction contract. In about a month, on December 18,1961, the American Creosoting Corporation conveyed the new fairgrounds land to Union County for the recited consideration of $8,500.00. The association, in addition to the $8,500.00 purchase price, has now expended $154,894.61 for permanent improvements to the property.
The county now objects to the association’s plans to remove the grandstand in order to expand the area for the showing of cattle and hogs. The association filed suit in chancery court asking a declaratory judgment defining the rights and interests of the parties in the fairgrounds. The county joined in asking that the rights and interests of the parties be declared and also asks that the association be enjoined from removing the grandstand.
The agreement between the county and the association, the agreement between the association and T. R. Williams which was also executed by the county and the deed from American Creosoting Corporation to the county were all executed for the same purpose and as a part of the same transaction. Instruments executed at approximately the same time, for the same purpose, in the same transaction are legally one instrument and will be construed together, in the absence of ánything to indicate a contrary intention. Gowen v. Sullins, 212 Ark. 824, 208 S.W.2d 450 (1948). All of the agreements, when considered as one, express the clear intent of the parties that the association use the property “so long as a (bounty Fair is held and the said property sights [rights] hereby created shall not forfeit unless no Fair is held for a period of at least two years,” at which time the property would revert to the county. The instruments vest the association with a determinable fee. A determinable fee is ordinarily created by a provision that the grantee’s estate is to continue “as long as” the property is used for a certain purpose or “until” a given event occurs, or by similar words limiting the duration of the estate. Davis v. St. Joe School District of Searcy County, 225 Ark. 700, 284 S.W.2d 635 (1955). If the limitation occurs, that is, if the association fails to conduct a county fair for two consecutive years, the determinable fee will automatically terminate and pass by reverter to the county. Williams v. Kirby School District No. 32, 207 Ark. 458, 181 S.W.2d 488 (1944). In the meantime the association’s possession of the property puts third persons on notice of its rights in the property. Clinton School District No. 1 v. Henley, 212 Ark. 643, 207 S.W.2d 713 (1948).
The issue then becomes whether the holder of a possibility of reverter may enjoin an act of waste which, in this case, is the proposed removal of the grandstand. In Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, 128 S.W. 581 (1910), we held that a contingent remainderman may enjoin waste where the estate may become his at the termination of a life estate. However, the chancellor correctly noted in the present case there is no proof that the termination of the determinable fee is ever likely to occur. Instead, there is a possibility the determinable fee will endure forever, as distinguished from the remainder following the life estate in the Watson case, supra. The chancellor also found that the alleged waste could cause no serious damage to the property and denied the injunction. We affirm. The holder of a possibility of reverter can restrain an act of waste by the holder of a determinable fee only when it appears that there is a reasonable certainty that the fee will terminate and the waste would cause serious damage to the property. Dees, et al v. Cheuvronts, et al, 240 Ill. 486, 88 N.E. 1011 (1909). Thompson on Real Property, Vol. 4 p. 405 (Repl. 1979).
Affirmed. | [
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Frank Holt, Justice.
The appellee assessed appellant with a use tax on various items it had purchased. Following an administrative hearing affirming the assessment, appellant filed a complaint in chancery court seeking a refund in the amount of the taxes it had paid under protest. The chancellor affirmed the assessment on certain machinery, equipment and chemicals.
Appellant produces steel wire products primarily for the refrigeration and freezer industry. It purchases wire, then straightens, cuts, forms, and welds the wire to obtain a finished product. The wire shelves produced are finished with either zinc plating or an electrostatic powder-plastic coating. In the electrostatic power-coating process, the wire shelves are passed through a spray booth where apoxic powder is sprayed on and induced with a 60,000 volt electrical charge, which causes the powder to cling to the shelves. The shelves are then baked so that the powder forms a permanent finish. An ultraviolet detection system monitors the electrostatic equipment.
Appellant first asserts that the chancellor erred in finding the ultraviolet system, purchased for $8,054.23, was not exempt from taxation. It argues the equipment meets the requirement of machinery or equipment used “directly in the actual manufacturing or processing operation . . . . ” Ark. Stat. Ann. § 84-3106 (D) (2) (c) (Repl. 1980). That subsection reads in pertinent part:
It is the intent of this subsection to exempt only such machinery and equipment as shall be utilized directly in the actual manufacturing or processing operation .... The term ‘directly’ as used in this Act is to limit the exemption to only the machinery and equipment used in actual production during processing, fabricating or assembling raw materials or semifinished materials into the form in which such personal property is to be sold in the commercial market....
The electrostatic equipment was purchased following an explosion within the system. It serves two functions — (1) it ■ is a safety monitor, which acts to shut down the powder-coating system in the event a spark or fire is detected in the system; and (2) it provides a printout analyzing the performance of the powder-coating process. Although the powder coating system operates normally 99% of the time, appellant considered the ultraviolet system as being vital and necessary in monitoring the entire system.
Appellee responds that neither function demonstrates that the detection system meets the requirements of § 84-3106 (D) (2) (c). Appellee characterizes the ultraviolet detection system as a “burglar alarm” which operates only in the event of a fire. Further, as a monitoring apparatus, it merely is an “information device” which is not used directly in the manufacturing process.
In Cheney v. Georgia Pacific Paper Corp., 237 Ark. 161, 371 S.W.2d 843 (1963), we held that informational devices used to record the functioning of other equipment were not exempt. Further, we have said it is well established that any exemption provision must be strictly construed against the exemption, and to doubt is to deny the exemption. S.H. & J. Drilling Corp. v. Qualls, Director, 268 Ark. 71, 593 S.W.2d 178 (1980); and Ark. Beverage Co. v. Heath, Director, 257 Ark. 991, 521 S.W.2d 835 (1975). The appellant has the burden of clearly establishing the exemption beyond a reasonable doubt. Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 953 (1976). On appeal we review the exemption cases de novo and do not reverse the chancellor’s findings of fact unless it is clearly against the preponderance of the evidence. Ark. Beverage Co. v. Heath, Director, supra. Here, tested by these rules we cannot say that the chancellor’s finding that the ultraviolet system is not exempt is clearly against the preponderance of the evidence.
Appellant next contends the chancellor erred in finding that the control panels, air cylinders, and transformers were not exempt from the use tax as “machinery purchased to replace existing machinery in its entirety.” Ark. Stat. Ann. § 84-3106 (D) (2) (b). We cannot agree.
During the period encompassed by the audit, appellant was enlarging its manufacturing plant and increasing production. Component parts necessary to construct control panels were purchased for $74,416.96, which appellee taxed. The control panels are designed from scratch and plugged into a welding machine to control the welding process. Appellant urges that each is a separate piece of machinery and that since these control panels can be utilized with different welding machines and are physically plugged into a welder to achieve the desired results, they are distinguishable from the component parts of a drilling rig which we considered in S.H. & J. Drilling Corp. v. Qualls, supra. There we held that where, the appellant purchased certain items to replace existing items of a drilling rig, even if the individual item was considered a machine within the definition of Heath v. Research-Cottrell, Inc., 258 Ark. 813, 529 S.W.2d 336 (1975), once they were assembled into a rig and are designed to accomplish a single purpose, they become a single unit and are not exempt from taxation. We find that reasoning controlling here. It appears undisputed that the control panels, air cylinders and transformers are physically combined with other existing components in order to construct a welding machine which has a single purpose and function. The control panels and welding machines are interconnected or component parts of welding machines and designed to accomplish a single purpose — welding wire to form shelves. They must function simultaneously as a single unit. The trial court correctly found these items did not constitute replacement of the welding machines in its entirety and, therefore, are not exempt.
Appellant further argues that the chancellor erred in finding zinc anode baskets and plating racks consisting of racks, tips and studs purchased by appellant for $18,461.90 were not exempt from the use tax as machinery or equipment used directly in the manufacturing process. These items conduct electricity necessary to perform the zinc-plating process and are connected to the conveyor system. The zinc anode baskets also hold the zinc chemical. Appellant argues these items are machinery and used directly in the manufacturing process. We feel these items, component parts of the plating machine, are not exempt for the same reason the control panels are not exempt. They have no independent function. They are interconnected with the zinc plating machine to accomplish a single purpose. See S.H. & J. Drilling Corp. v. Qualls, supra. Appellant has not met its required burden of proof. To doubt is to deny.
The appellant next asserts the chancellor erred in finding an analytical PH recorder purchased for $500.80 was not exempt as machinery or equipment used directly in the manufacturing process. The appellant claims exemption under § 84-3106 (D) (2) (d). That subsection exempts “[machinery and equipment required by State law or regulations to be installed and utilized by manufacturing or processing plants or facilities in this State to prevent or reduce air and/or water pollution or contamination which might otherwise result from the operation of such plant or facility.” Admittedly, this is only a monitoring device. Even so, appellant argues that it is necessary to monitor the discharge of waste materials and chemicals in order to be in compliance with state pollution law. The flaw in this argument is that the PH recorder itself does not “prevent or reduce air and/or water pollution or contamination.” Its purpose is merely to inform the appellant of the level of pollutants present in the waste water discharge. Appellant can then take corrective action. There is no evidence here, as there was in Heath v. Research-Cottrell, supra, that this or any other equipment actually prevented or controlled pollutants in the waste materials. Here, again, when we apply our well established standards of appellate review in tax exemption cases, we cannot say that the chancellor’s finding is clearly against the preponderance of the evidence.
Neither do we agree with appellant’s last contention for reversal that the chancellor erred in finding that certain chemicals purchased by it were not entitled to exemption from the use tax as items purchased for resale. The “sale for resale” exemption is § 84-1904 (i), which is made applicable by § 84-3106 (B). Appellant argues that the coating and plating process of the finished article could not be properly completed and marketable without these chemicals and, therefore, they constitute an essential part of the finished product and are necessary to its completeness. The appellee correctly responds that the chemicals used in the manufacturing process become neither a recognizable or integral part of the finished shelves. It.appears that the chemicals are merely cleansing agents in the manufacturing process which are used at separate rinsing stages to remove not only chemicals but also dirt and oil accumulations from the unfinished shelves. In the circumstances, when we strictly construe, as we must, tax exemptions against the claimant, we certainly cannot say that the chancellor’s finding that these items are not exempt under “sale for resale” exemption, § 84-1904 (i), is clearly against the preponderance of the evidence. Great Lakes Chem. v. Wooten, 266 Ark. 511, 587 S.W.2d 220 (1979); and Hervey v. Internat’l. Paper Co., 252 Ark. 913, 483 S.W.2d 199 (1972).
Affirmed. | [
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Robert H. Dudley, Justice.
Appellant was convicted of aggravated robbery and theft for the March 13, 1980 robbery of the McDonald’s restaurant at 5000 West Markham in Little Rock. For the aggravated robbery he was sentenced to 40 years imprisonment and was assessed a $5,000.00 fine and for the theft he was sentenced to 10 years imprisonment and was assessed a $5,000.00 fine. Jurisdiction is in this court under Rule 29 (1) (b). The sole designated point for reversal is whether the trial court committed error in admitting identification evidence from a pre-arrest lineup. We affirm the trial court.
The evidence established that appellant and an accomplice forced their way into the restaurant after closing hours while two employees were cleaning the interior of the building. They forced one of the employees to call a night manager, who had a key to open the safe, and tricked him into driving to the restaurant. The aggravated robbery and theft then occurred. Appellant and the accomplice were clearly observed by the employees for approximately 25 minutes. The police report described one of the robbers, who was later identified as appellant, as a white male, being twenty-five years old, standing six feet two inches tall, weighing one hundred sixty-five pounds, having blue eyes and light brown hair, being clean shaven and identifying in detail his clothing. Five days after the robbery appellant was placed in a pre-arrest lineup and was positively identified by two of the employees.
The appellant questions the validity of the identification procedure. There are usually two procedural steps involving identification evidence. First, the trial judge examines the procedure used at the lineup to determine if the evidence is admissible. Second, after the evidence has been ruled admissible, the jury weighs the reliability of the identification evidence under the instructions of the court. The appellant contends that the trial judge committed error in the first step and should not have admitted the identification evidence because it was (1) impermissibly suggestive and (2) was not relevant. We affirm the trial court.
The Supreme Court of the United States has ruled that a state criminal court is not required by the Due Process Clause of the Fourteenth Amendment to conduct a hearing out of the jury’s presence whenever a defendant contends that a witness’ identification was arrived at improperly. Watkins v. Sanders, 449 U.S. 341 (1981). Even though such a procedure is not constitutionally required we emphasize the prudence of such a hearing especially when, as here, the defendant has filed a motion to suppress. See Wright v. State, 258 Ark. 651, 528 S.W.2d 905 (1975).
At a hearing on a motion to suppress the trial judge must first determine the reliability of identification. The judge must look to the totality of the circumstances to see if there is a likelihood of misidentification. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). If there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the criminal, then the procedure is so undermined it violates due process. Foster v. California, 294 U.S. 440 (1969). It is the reliability of the evidence that is the linchpin in determining its admissibility. Matthews v. State, 275 Ark. 1, 627 S. W.2d 20 (1982). We do not reverse a trial judge’s ruling on the admissibility of identification evidence unless it is clearly erroneous because it is a ruling on a mixed question of law and fact. Beed v. State, supra.
We have articulated several factors to be considered in assessing reliability. They include: prior opportunity of the victims to observe the crime and its perpetrator; the lapse of time between the crime and the lineup procedures; discrepancies between descriptions given the police and the defendant’s actual description; the occurrence of pretrial misidentification; the certainty of the witness in identifying the accused; the facts and circumstances regarding the identification and all matters relating to the identification. James and Elliott v. State, 270 Ark. 596, 605 S.W.2d 448 (1980).
The lineup in this case was conducted on March 18, 1980, which was only five days after the robbery. The participants in the lineup, other than appellant, included two persons from lockup and three police officers. All were dressed in plain clothes. All were white males of approximately the same age. Although one of the participants was a little short of six feet, all were near the same height. Five had long or longish brown hair and the sixth had average length hair. At least two, and possibly three had a moustache but otherwise were clean shaven. Both police officers testified that they did not suggest who should be identified. The participants in the lineup may be fairly said to resemble the appellant.
Appellant contends that he did not have a moustache and yet two or three of those in the lineup had moustaches. That factor is not sufficient to establish that the lineup was impermissibly suggestive, especially since the police had the description of appellant and his accomplice. One was described as being clean shaven without a moustache and the other clean shaven with a moustache. Until the appellant was identified the police had no way of knowing which alleged robber was being placed in the lineup.
We cannot say that the trial judge was clearly erroneous in holding that the lineup procedure was not impermissibly suggestive.
In appellant’s second contention he admits that he was positively identified at trial and therefore, he argues, the extrajudicial identification was not relevant. We have frequently held that a prosecuting witness may testify that he saw or identified the defendant before or after the offense. Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980); Bishop v. State, 236 Ark. 12, 364 S.W.2d 676 (1963); French v. State, 231 Ark. 677, 331 S.W.2d 863 (1960); Birones v. State, 105 Ark. 82, 150 S.W. 416 (1912). The pre-information identification is relevant.
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