text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
English, C. J.
arrest of judgment.
The indictment was for malicious mischief, and charged, in substance, that Moses Dean, on the first day of May, 1880, in the county of Conway, etc., one mule, of the value of one hundred and fifty dollars, of the property, goods and chattels of one Hampton Hines, did unlawfully, wilfully and maliciously kill, contrary to the statute, etc., etc.
All the material facts to constitute an offense, under the statute (Acts of 1879, p. 85) are alleged in the indictment.
The particular objection taken to the indictment in the motion in arrest of judgment, is that it “does not allege that the grounds in which the mule is charged to have been killed were not inclosed with a lawful fence, as indicated in the proviso of the act under which the indictment was drawn.”
It is not alleged that the mule was killed in any particular grounds, nor was such an allegation necessary.
When the animal is killed when trespassing in the inclosure of defendant, and he has a lawful fence, that may be shown in defense, under the proviso of the statute.
II. Appellant was found guilty by the jury, a fine of $50 assessed against him as punishment, and the value of the mule fixed at $100.
He made no objections to the instructions given on the part of the state, and the Court gave all asked by him.
The grounds of the motion for a new trial were that the verdict was against the evidence, the law and the instiuctions of the Court; and that the value fixed upon the mule was greater than warranted by the proof.
The evidence introduced by the State conduced to prove that defendant shot and killed a mule belonging to Hampton Hines, in May, 1880 ; that they had had a previous difficulty, and were not friendly.
It appears that the mule was shot in the yard of defendant, jumped the fence, and went part of the way home, but fell and died on the road. The yard and field of the defendant were inclosed by the same rail fence, there being no division fence.
The mule was perhaps shot in the night, and early next morning was found by Hines and others dying, and by its tracks and blood traced back to defendant’s house. Hines attempted to measure the height of defendant’s fence, when he picked up a rail, and told him if he measured his fence without legal authority he would kill him. He did measure it, however, where the mule had jumped over it out of the yard, and found it only there feet high, and it was not more than four feet high all around.
Another witness testified that he, with others, had rode around the fence, and it appeared to’be not more than four feet high in the highest places. Witnesses for the defense testified that the fence was five feet high.
So the evidence was conflicting as to the value of the mule. Hines swore it was worth $127.50, and a witness for the defense testified that it was not worth over $50 or $60.
The value of the mule, the height of the fence, and whether defendant killed the mule, and if so, maliciously,, were all questions of facts for the jury, and it was their peculiar province to judge of the weight of the evidence.
It is not stated in the bill of exceptions that it was-proved that the mule was killed by defendant in the county J J of Conway, but the bill of exceptions does not purport to-set out a]j the evidence introduced on the trial. The principal contest seems to have been about the height of the-inclosure in which the mule was shot, and the value of the animal, and the testimony of the witnesses is not stated in the bill of exceptions in detail, as given by them, nor does it purport to state all the facts proved by the several witnesses, nor that the evidence set out was all that was introduced upon the trial.
Where it does not appear from the bill of exceptions that it sets out all the evidence introduced, or facts proved on the trial, the presumption is in favor of the judgment.
Affirmed. | [
-16,
-12,
-72,
15,
42,
-32,
8,
24,
-45,
-128,
96,
115,
109,
71,
4,
49,
-31,
-7,
85,
105,
-28,
-73,
-13,
83,
-110,
-45,
-125,
-41,
55,
77,
-25,
-41,
9,
112,
-22,
89,
-57,
106,
-31,
-36,
-114,
41,
-120,
116,
-14,
80,
48,
43,
85,
78,
49,
-113,
-21,
42,
53,
99,
105,
44,
-21,
43,
-64,
113,
-76,
13,
-87,
6,
-110,
38,
-101,
-127,
74,
124,
-104,
17,
17,
-8,
123,
-108,
-127,
-44,
44,
25,
12,
98,
66,
1,
77,
-51,
32,
-120,
47,
62,
-51,
-121,
40,
80,
75,
-124,
-98,
-99,
114,
80,
-90,
100,
-1,
-59,
92,
104,
39,
-49,
-108,
-111,
15,
48,
-110,
39,
-37,
-91,
16,
113,
-113,
-22,
92,
37,
80,
-101,
-115,
-47
] |
Harrison, J.
It is expressly declared by Section 564, Gantt’s Digest, (Hci of April 24, 1873,) that “the lien or equity held or possessed by the vendor of real estate,, when the same is expressed upon, or appears from, the face-of the deed or conveyance, shall inure to the benefit of the assignee of the note or obligation given for the purchase-money of such real estate, and may be enforced by such.
This case appears to be within the very language of the Statute. If a lien had been in terms reserved in the deed, no question could possibly arise as to its passing with the assignment of the notes, and as it plainly appears from the face of the de'ed that the purchase money had not been paid, and that the notes were given for it, there is as little room for controversy, it seems to us, as to the existence of the equitable or implied lien.
Most assuredly, if Samuel Anthony still owned the land, and the notes had not been assigned, the recital in The deed, that the price had not been paid, or, in other words, that the notes were given for it, would, in a suit by the vendor for foreclosure, be sufficient and cogent proof that it had not been paid, and of the existence of the lien ; and it is equally clear that the recital was notice to the subsequent purchasers. Deason v. Taylor, 53 Miss., 697; Honore’s Ex’r v. Bakewell, 6 B. Mon., 67; Thornton v. Knox’s Ex’r, Ib., 74; Croskey v. Chapman, 26 Ind., 333; LeNeve v. LeNeve, 2 Leading Cases in Equity, 168.
The decree is reversed, and the cause remanded to the court below, with instructions to overrule the demurrer to the complaint, and for further proceedings. | [
-10,
124,
-44,
127,
-22,
96,
40,
-104,
-31,
-94,
38,
83,
109,
66,
16,
37,
-26,
107,
117,
104,
69,
-94,
62,
65,
-14,
-77,
-47,
85,
-75,
-19,
86,
-41,
76,
48,
-62,
-107,
102,
-62,
-51,
86,
14,
-83,
9,
69,
-39,
64,
52,
11,
80,
77,
97,
-121,
-29,
45,
17,
75,
105,
40,
77,
41,
-64,
-8,
-97,
5,
123,
3,
-109,
117,
-100,
79,
-54,
-114,
-112,
49,
1,
-24,
91,
54,
22,
84,
9,
-101,
40,
102,
98,
18,
-59,
107,
-40,
-100,
46,
-1,
13,
-90,
-47,
120,
2,
104,
-105,
-99,
124,
16,
102,
118,
-26,
-107,
29,
108,
19,
-54,
-106,
-79,
45,
126,
-118,
3,
-26,
19,
48,
113,
-49,
-77,
92,
98,
85,
-101,
-114,
-35
] |
Andree Layton Roaf, Judge.
Appellant Brenda Van-Wagner appeals from the Arkansas Workers’ Compensation Commission’s holding that her claim for additional permanent partial disability benefits is barred by the statute of limitations. Van-Wagner argues that the Commission erred when it found that her claim was time barred, asserting that the timely fifing of her claim for additional benefits had tolled the statute of limitations. We reverse the Commission’s decision and remand for a determination ofVanWag-ner’s entitlement to permanent partial disability benefits.
The facts of this case are not controverted. While working for appellee Wal-Mart, VanWagner injured her right shoulder on November 17, 1994, which eventually required surgical intervention. Wal-Mart began paying benefits on December 12, 1994. Wal-Mart last paid benefits to VanWagner in December 1994. On January 12, 1995, VanWagner filed a Commission Form AR-C requesting additional benefits. She requested additional temporary total disability benefits, additional permanent partial disability benefits, additional medical expenses, and attorney’s fees. At the hearing, both parties had agreed to litigate only the temporary total disability benefits claim, the issue of related medical expenses, the determination of whether VanWagner remained in her healing period, and the issue of attorney’s fees. On August 19, 1996, the Commission affirmed the administrative law judge’s opinion finding that VanWagner was still in her healing period but denying VanWagner’s petition for additional temporary total disability benefits based upon Wal-Mart’s defense of the refusal of suitable work.
On November 6, 2000, VanWagner filed a request for additional benefits. VanWagner requested a hearing on the issue of her entitlement to additional permanent partial disability benefits relating to a ten percent permanent partial impairment rating issued by the company physician. Wal-Mart defended the claim by raising the statute of limitations. The ALJ found that VanWagner’s claim for additional benefits in January 1995 operated to toll the statute of limitations. The ALJ ruled that VanWagner’s claim was not time barred and awarded permanent partial disability benefits and attorney fees. The Commission reversed the ALJ’s decision and held that the statute of limitations did bar VanWagner’s claim.
On appeal, VanWagner argues that the Commission erred in holding that her claim was time barred. When reviewing decisions from the Commission, this court views 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. Dillard v. Benton Co. Sheriffs Office, 87 Ark. App. 379, 192 S.W.3d 287 (2004). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
This court must first consider the allowable time for filing a claim for benefits as set out in Ark. Code Ann. § 11-9-702 (Repl. 2002). This statute sets out two types of claims. Subsection (a) covers an initial claim, which must be filed within two years of the date ofinjury. Ark. Code Ann. § ll-9-702(a)(l). The second type of claim is a claim for additional benefits and is set out in subsection (b) of 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. Ark. Code Ann. § 11 — 9— 702(b)(1). When a claimant files a timely request for additional benefits, the statute of limitations is tolled. Eskola v. Little Rock Sch. Dist., 93 Ark. App. 250, 218 S.W.3d 372 (2005); Dillard, supra; Spencer v. Stone Container Corp., 72 Ark. App. 450, 38 S.W.3d 309 (2001); Bledsoe v. Georgia-Pacific Corp., 12 Ark. App. 293, 675 S.W.2d 849 (1984).
There is no question that VanWagner filed her 1995 request for additional benefits within two years of her injury, thus tolling the statute of limitations. The issue here is whether the 1995 hearing disposed of the claims and lifted the toll. The Commission held that it did, but we disagree. The Commission’s opinion reads in pertinent part:
Although [VanWagner] initially filed a claim for additional benefits on December 19, 1994, well within the statute of limitations period, and which tolled the statute of limitations, this claim for additional benefits was litigated on August 23,1995, and disposed of via the Full Commission opinion filed August 19,1996, thus lifting the toll. [VanWagner] did not file a subsequent request for additional benefits until November 3, 2000, well beyond the statute of limitations. [Emphasis added.]
A hearing was held in 1995; however, it adjudicated only the issues of temporary total disability benefits, end of healing period, and medical and attorney fees. The statute of limitatons was tolled when VanWagner filed her 1995 claim for benefits, but Wal-Mart asserts and the Commission found that the 1995 hearing lifted the toll on the statute of limitations in all respects, barring VanWag-ner’s subsequent 2000 request for permanent partial disability benefits. The parties agreed, however, not to litigate the issue of permanent partial disability at the 1995 hearing, even though VanWagner indicated on the 1995 claim that she was requesting this benefit. No determination was ever made regarding VanWag-ner’s entitlement to permanent disability benefits. Because the Commission found that VanWagner was still in her healing period in 1995, a determination of permanent partial disability benefits at that time would not have been appropriate. VanWagner’s 2000 request for additional benefits was thus unnecessary and irrelevant to any statute of limitations calculation.
In sum, VanWagner filed a timely request for additional benefits in the form of permanent partial disability benefits in 1995, tolling the statute of limitations. The claim was neither litigated nor dismissed, the toll was never lifted, and the claim for permanent partial disability benefits remains outstanding. Thus, VanWagner’s claim for permanent partial disability benefits is not time barred.
Reversed and remanded.
Pittman, C.J., and Griffen, J., agree. | [
80,
-6,
-43,
76,
10,
99,
50,
58,
115,
-121,
37,
81,
-89,
-41,
-99,
57,
-5,
109,
64,
105,
-109,
-77,
17,
10,
-42,
-69,
121,
-57,
-80,
111,
116,
84,
76,
48,
-118,
-63,
102,
-64,
-19,
92,
120,
6,
-101,
-17,
65,
-124,
56,
46,
-40,
11,
49,
-2,
105,
46,
24,
78,
44,
44,
107,
63,
80,
-88,
-94,
5,
-17,
21,
-127,
4,
24,
38,
90,
14,
-104,
48,
97,
-24,
18,
-74,
-58,
52,
83,
-103,
4,
98,
98,
32,
20,
-41,
-20,
-72,
-122,
-38,
-97,
-123,
-112,
24,
11,
7,
-74,
-68,
126,
20,
8,
-4,
-2,
77,
86,
108,
-117,
-122,
-73,
-79,
-33,
-24,
28,
35,
-21,
-89,
-80,
117,
-50,
-30,
93,
1,
123,
-102,
-38,
-110
] |
English, C. J.
This action was brought in the Circuit Courtof Dorsey county by James Warner against William E. Capps. There were three paragraphs in the complaint, the . first alleging-, in substance :
“That on or about the sixteenth day of December, 1877, said defendant, with force and arms, etc., took into his possession four bales of cotton, of the value of two hundred dollars, lawful money, etc., then lying and being in the county, etc., aforesaid, and at the gin house, and from and out of the possession of said plaintiff, unlawfully and without right, and did then and there detain said cotton for a long space of time, to-wit: for the space of six days, to the great damage and inconvenience of said plaintiff.” etc.
The second paragraph alleged, in substance:
“That defendant, on the day and in the county, etc., mentioned in paragraph first, unlawfully and without right, and with force and arms, and against the protestation of said plaintiff, siezed, took and detained certain goods and chattels, to-wit: four bales of cotton, the property of said plaintiff, of great value, to-wit: two hundred dollars, etc., and then and there held said cotton, and kept and detained the same so then held for a long space of time, to-wit: for the space of - days then next following, whereby the said plaintiff for and during all that time lost and was deprived of the use and benefit of said cotton, and thereby the same then and there became and was greatly damaged, lessened in value, and other wrongs then and there did, to the great damage of said plaintiff.”
Third paragraph:
“Plaintiff further says that during the time of said taking and detention as aforesaid, his teams were stopped in consequence thereof; and that he was led to believe by the wrongful acts of said defendant as aforesaid, that he was clothed with legal authority to sieze and take said cotton, and in consequence thereof said plaintiff was induced to employ the services of an attorney, to regain possession of said cotton, and then, and not until .then, was he able to regain possession of said cotton, all of which greatly damaged him to the amount of $150.” Wherefore he prays judgment, etc.
Defendant entered a general demurrer to the whole complaint, which was sustained by the Court, and plaintiff resting, final judgment was rendered for defendant, and plaintiff appealed.
I. The demurrer being to the whole complaint, if either ° of the paragraphs stated sufficient facts to show a good tcause of action, it should have been overruled. Bruce et al v. Benedict, 31 Ark., 301; Lane v. Levillian, 4 Ark., 272.
II. The Code has made no change in the substantial allegations necessary to constitute a cause of action, and ° resort may still be had to the common law forms of plead ing, where the form adopted is appropriate, and in the use' •of it the material facts constituting the cause of action are specifically stated. Ball et al v. Fulton county, 31 Ark., 378.
III. The third paragraph of the complaint alleges no •cause of action, but is a vague attempt to claim consequential, and not direct damages, for the taking’ and detention ’ ■of the cotton complained of in the first and second paragraphs.
IV. The second paragraph showed a good cause of tion. Trespass de bonis asportatis lies for unlawfully tak■ing and carrying away the plaintiff’s goods and chattels, and where the goods have been returned or reclaimed, the •action will still lie for the damage done, if it be even nominal. Green’s Prac. and Plead., sec. 708.
In the second paragraph it was alleged that the plaintiff was the owner of the four bales of cotton; that the defendant unlawfully, and with force and arms, seized, took and -detained the cotton from him, for a long space of time, to-wit;-days, whereby, etc. 'All the necessary and material facts to constitute a cause of action were specifically ■stated in this paragraph, the blank as t.o the time the cotton was detained being matter of form.
V. The first paragraph does not allege that plaintiff title, general or special, in the cotton.
In trespass for taking goods, says Mr. Selwyn, •declaration must state that the goods were the plaintiff’s goods; “hence,” if the words “the plaintiff,” or “his,” be omitte.d, the declaration will be bad; but this omission may be cured by pleading over. 2 Selwyn, Nise Prius, 1333.
A declaration in trespass which does not allege that the plaintiff has property in the thing taken, is bad on demurrer. Hite v. Bony, 6 Randolph, 457; 6 Bac. Abr., 600, tit., Trespass, II; Neale v. Clantice, 7 Har. & John., 379.
Such is the common law rule, and it applies just the same to the Code pleadings. When in pleading, under any system, any right or authority is set up over either real or personal property, some title to such property must be alleged. Green's Prae. and Plead., sec. 435.
On issue to the declaration or complaint, however, in-trespass to personal properly, plaintiff may maintain the action by proving that he is the general owner, or has a special property in the goods, as mortgagee, bailee, officer, etc. So a mere possession, by which is meant one who has a peaceable possession of goods, but who shows in himself no other right, may maintain trespass. This mere possession is sufficient, as against one who disturbs it without right in himself, and who, therefore, occupies the position of an intermedien in that in which he1 has no interest. Cooley on Torts., p. 437.
There is an awkward averment in the first paragraph that the cotton was taken from the possession of the plaintiff. But, as above shown, the better pleading is to allege property in the plaintiff, general or special, for it is not a universal rule that one in the actual possession of goods has a right of action for trespass to them. For example : where-goods are entrusted by the owner to a mere servant, and there is a trespass upon them, the right of action is in the-master. Cooley on Torts., 436.
Whether there be other exceptions we need not inquire in this case ; the second paragraph of the complaint was clearly good, and the Court erred in sustaining the demurrer to the whole complaint; and for this error the judgment must be reversed, and the’cause remanded for further proceedings. | [
-80,
98,
-4,
13,
26,
-96,
40,
-70,
90,
33,
-74,
83,
-55,
119,
27,
117,
115,
121,
117,
125,
-28,
-77,
83,
-26,
-110,
-77,
-21,
-121,
-80,
-53,
-27,
-42,
12,
36,
-62,
-103,
71,
96,
-31,
-36,
-50,
1,
-67,
-20,
-107,
105,
56,
57,
4,
75,
113,
23,
-14,
42,
17,
75,
9,
45,
-51,
-88,
66,
105,
-98,
29,
-18,
22,
-95,
6,
-98,
3,
-56,
14,
-72,
21,
32,
-88,
-13,
-74,
-126,
85,
5,
-119,
12,
102,
99,
49,
-83,
-81,
88,
-84,
46,
-77,
-99,
-90,
-80,
64,
75,
10,
-66,
-100,
118,
16,
55,
116,
57,
-100,
17,
44,
-89,
-122,
-108,
-109,
-81,
32,
-98,
19,
-45,
39,
56,
97,
-115,
-81,
92,
21,
49,
-101,
-41,
-57
] |
Harrison, J.
It is insisted by the appellant that upon •the partition of the land, the mortgage attached to the whole of the portion set off to him in severalty, and that .•set off to Carleton was entirely released. This no doubt, would have been the effect of the partition if the mortgagee had been a party to it, or had ratified it. Jones on Mortgages, sec. 706; Colton v. Smith, 11 Pick., 311; Bradley v. Fulton, 23 Pick., 1.
But there was no proof of a ratification by the mortgagee, and of his assent to a change in his security, and the decree ■as to the foreclosure was, therefore, correct; but the sale •should have been on a credit, as required by the Statute, •and for no part cash. And for this error the decree must be reversed.
The cause will be remanded to the Court below, with instructions, should the mortgagee consent thereto, as it has been suggested here by his counsel he will, to decree a foreclosure as to the whole of the portion of the lands set ■off to Jackman, and not as to any part of that to Carleton ; if not, as to the undivided half of the whole, and a sale of the •same as provided by the Statute. | [
-14,
-4,
-40,
108,
74,
96,
-88,
-104,
-40,
-96,
35,
83,
111,
-54,
16,
41,
-94,
123,
-31,
104,
-43,
-94,
46,
65,
-14,
-13,
-47,
85,
-76,
-20,
102,
-35,
76,
40,
-62,
-11,
102,
-118,
-59,
92,
-18,
-121,
-88,
77,
-47,
4,
52,
31,
80,
15,
69,
-97,
-14,
44,
29,
77,
12,
42,
41,
57,
-48,
120,
-97,
13,
75,
3,
49,
52,
-104,
-29,
-38,
42,
-112,
49,
1,
-24,
123,
-74,
-122,
116,
5,
27,
8,
98,
102,
16,
109,
-17,
-68,
-100,
46,
-17,
-115,
38,
-123,
88,
1,
97,
-73,
-99,
108,
0,
6,
124,
-30,
-107,
29,
108,
22,
-53,
-106,
-125,
-115,
60,
-104,
-125,
-2,
5,
56,
113,
-49,
-93,
93,
97,
26,
-101,
-113,
-3
] |
B. B. Battle, Special Judge.
This is an action to foreclose a mortgage on lots four, five, six, seven, eight and nine, in block three hundred and one, in the city of Little Rock, executed on the 14th day of June, 1871, by the appellees, Davis and wife. The mortgage was given to secure the payment of a note, bearing even date with the mortgage, executed by said appellees to appellant for one thousand dollars, borrowed money, and interest thereon; and contains tho following clause: ‘ ‘ And we the said George A. Davis and Mary A. Davis, wife to said George A. Davis, do hereby forever renounce all claims to the above conveyed property as a homestead, and we do fully agree and covenant with the said James P. Webb, that said property is not our homestead, and forms no part thereof, and we do not claim it as such.”
Appellees, Davis and wife, who .were defendants in the court below, answered, admitting the execution of the note and mortgage — confessing the complaint — and saying substantially and in effect, that they had, before the execution of the mortgage, purchased lots seven, eight and nine, but had never paid the purchase money, and that afterwards, under a decree in a suit instituted by the vendor against them to foreclose a vendor’s lien for unpaid purchase money, said lots were sold to Cora F. Faust; that appellee, George A. Davis, was at the time of the execution of the mortgage, and still is a resident of this State, and the head of a family; that they were the owners of lots four, five and six,- at the time of the execution of the mortgage, and still are the owners thereof; that the same were, at the time of the execution of the mortgage, and still are used and occupied by them as their homestead, and were then and ate now their homestead and residence, and, with the improvements thereon,. do not exceed in value the sum of five thousand dollars ; that they have no other home or place of residence in this State,, and claiming the same as their homestead.
To this answer, appellant filed a general demurrer which was overruled.
No question as to the sufficiency of the complaint was-raised, but the defects in the same were considered by the court below, in a written opinion delivered and filed by the-chancellor, as supplied by the answer.
The action was finally dismissed by an order of the court, in the words following: “Plaintiff declines to amend. Wherefore this cause is dismissed for want of equity, at the cost of plaintiff.”
According to the answer, lots four, five and six were the-homestead of defendants at the time of the execution of the mortgage and still are such homestead ; and as to them the mortgage was null and void. Fritz v. Fritz, 32 Ark., 327; Sentell v. Armor, 35 Ark., 49; Klink v. Knoble, decided at the present term, and Wassell v. Tunnah. 25 Ark., 101.
Appellant insists that the clause in the mortgage copied in this opinion estops appellees from claiming any of theafore described lots as a homestead. Has it that effect?' We think not. The Constitution of 1868, which was in force at the time of the execution of the mortgage, expressly declares that “ the homestead of any resident of this State, who is a married man or head of a family, shall not be encumbered in any manner while owned by him,” except with liens for taxes, and with laborer’s, mechanic’s and vendor’s liens. Lots four, five and six were the homestead of appellees at. the time of the execution of the mortgage sued on ; and the mortgage, if anything, was an effort to encumber the homestead, and is in that respect void because it violated the Constitution of 1868.
The fact that any of these lots were or were not the homestead of appellees depended not upon any recitals, statements, stipulations or covenants contained in the mortgage..
The actual use and occupation as a home and residence constituted the homestead, and could only be shown by extrinsic evidence. To assert and maintain the right of homestead the appellees must necessarily be permitted to plead and prove this fact. This follows as an inseparable and necessary incident to the rights of homestead guaranteed to them by the Constitution. Any recitals, statements, stipulations or covenants incorporated in the mortgage to' prevent the pleading or proving this fact, or having that effect, if any; according to the legal construction thereof, were in violation of the Constitution in force at the time of its execution and against its policy, and are void. Klink v. Knoble, supra.
The facts stated in the answer are sufficient to constitute a defense, and the demurrer to the same was properly overruled.
The court below erred in dismissing the action at the cost ° of plaintiff, because he refused to amend. The defects in A the complaint, if any, having been supplied by the answer, there was no necessity for amending. The cause was issue upon the filing of the answer; the burden of proof was on the defendants, and the court should have proceeded3. . to a hearing, which does not appear from the transcript to have been done, unless the plaintiff failed or refused to prosecute his action.
The order dismissing the action is reversed, and this cause is remanded for further proceedings not inconsistent with this opinion.
The Hon. J. R. Erkin did not sit in this case. | [
113,
105,
-48,
126,
74,
-32,
10,
-104,
-38,
40,
-93,
83,
105,
-60,
80,
69,
-94,
45,
117,
121,
37,
-78,
23,
99,
-46,
-45,
-39,
-59,
-71,
-35,
-12,
-41,
76,
44,
-54,
-107,
66,
-30,
-57,
84,
78,
-91,
25,
76,
-47,
66,
48,
-69,
114,
14,
85,
-65,
-13,
45,
29,
74,
77,
44,
79,
45,
-48,
-70,
-113,
-113,
125,
1,
17,
101,
-102,
67,
-22,
-56,
-112,
53,
1,
-24,
114,
-90,
-122,
116,
64,
27,
12,
118,
102,
10,
-83,
-17,
-40,
-120,
39,
-10,
-115,
-122,
-46,
88,
2,
40,
-66,
-99,
125,
64,
6,
-10,
111,
-123,
25,
108,
7,
-50,
-106,
-109,
-115,
56,
-104,
-125,
-13,
31,
48,
113,
-113,
-86,
93,
102,
61,
27,
-114,
-11
] |
Larry D. Vaught, Judge.
Appellant Charles Simmons appeals following his conviction by a Cleburne County jury of five counts of rape and one count of producing, promoting, or directing a sexual performance. He was sentenced to a total of 210 years in prison. On appeal, he argues that books, videos, and photographs obtained during a search of his residence were improperly admitted into evidence; that the deposition testimony of a victim who died before trial was improperly admitted into evidence; and that his sentence violates the Eighth Amendment’s prohibition on cruel and unusual punishment. We affirm.
At trial, six young men testified against Simmons, all of whom had either lived or been a frequent guest in Simmons’s home. Their testimony revealed that Simmons allowed them to abuse controlled substances, drink alcohol, watch pornographic videos, and look at pornographic pictures on his computer. They recalled raucous parties where both adult men and teenage boys drank heavily, abused drugs, and engaged in sexual activity. The boys testified that Simmons encouraged them to engage in homosexual relations with older men and that they were forced to have sex with Simmons and his older, male friends. One boy described how he passed out from drinking too much alcohol and woke up to find Simmons performing oral sex on him. Many of the boys recalled Simmons taking their photographs in sexually explicit poses. One victim identified photographs presented at trial as ones Simmons had taken of him in seductive poses. Several of the boys stated that they could not recall everything that had happened because they had been so inebriated at the time; however, they stated they often “woke up” naked. One of the boys described being handcuffed to a bed and sodomized with something that felt like “a broomstick.” The boys also recounted how Simmons had them strip for him and his male friends.
One of Simmons’s co-defendants, Jason Willabanks, testified that he witnessed Simmons performing oral and anal sex on at least two of the boys. Willabanks admitted that he had sex with two of the boys. He also stated that teenagers under the age of eighteen were often at Simmons’s home; that he had seen pornographic photographs and videos at Simmons’s home; that one of the photographs displayed one of the teenagers passed out and nude; that other photographs illustrated two of the boys posing together in the nude; and that he was aware of the boys stripping for Simmons, but he had never witnessed it.
During the trial, Simmons objected to several exhibits that were introduced into evidence, including five books, entitled Bayou Boy, Boys of the Night, A Matter of Life and Sex, Growing Up Gay: From Left Out to Coming Out, and Seduced: Erotic Tales About Boys with Fun on Their Minds; five videos, one entitled Boy’s Life, which told the story of an older male seducing a young boy, and four adult movies; and seven photographs depicting males in sexually explicit poses. He also objected to the introduction of deposition testimony of a witness who had died prior to the trial. The trial judge overruled Simmons’s objections and allowed the exhibits and the deposition into evidence.
For his first point on appeal, Simmons contends that the trial court erred in admitting the books, videos, and photographs into evidence. He argues several points, including that the evidence constituted improper character evidence, that it was irrelevant, and that even if it was relevant, it was more prejudicial than probative. Our supreme court has noted that trial courts have broad discretion with regard to evidentiary rulings, and when reviewing a ruling on the admissibility of evidence, the trial court should not be reversed absent an abuse of that discretion. Owens v. State, 363 Ark. 413, 214 S.W.3d 849 (2005). Furthermore, we will only review arguments that have been preserved for appeal; arguments raised for the first time on appeal are not considered. Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (2004).
Rule 402 of the Arkansas Rules of Evidence provides that irrelevant evidence is inadmissible. Rule 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The test of admissibility of evidence over an objection for irrelevancy is whether the fact offered into proof affords a basis for rational inference of the fact to be proved. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). It is sufficient if the fact may become relevant in connection with other facts, or if it forms a link in the chain of evidence necessary to support a party’s contention. Id. at 198, 119 S.W.3d at 492.
Even if relevant, evidence may nonetheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403. In addition, evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity with that trait on a particular occasion. Ark. R. Evid. 404(a). In such cases, evidence is not barred by the rule if it is independently relevant and not offered to show merely that the defendant has bad character. Holt v. State, 85 Ark. App. 308, 151 S.W.3d 1 (2004). Furthermore, evidence that is offered by the State to corroborate other evidence is relevant. Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003).
With regard to the books, Simmons argued at trial that the books had no probative value and were only introduced to unfairly prejudice the jury. Fie complained that the books would inflame the jury to be “possibly disgusted with him [and] with his lifestyle” and that the jury would want to “punish somebody for just having a book like this.” On appeal, Simmons argues that the books were inadmissible character evidence, and alternatively, that the prejudice of the books outweighed their probative value. Although the State contends that Simmons raises the character-evidence argument for the first time on appeal, we are satisfied that Simmons’s contention at trial that the books would cause the jury to be disgusted with his lifestyle is enough to preserve his character-evidence argument.
On the merits, we agree that the books are only marginally relevant to the case. None of the victims testified that Simmons showed them any pornographic books or used the books to lure them in any way. In fact, it appears the only reason for introducing the books was to inform the jury that Simmons was homosexual. Regardless, we find any error to be harmless in light of the wealth of other evidence (including the testimony, videos, and photos) of Simmons’s homosexual lifestyle.
With regard to the five pornographic videos, we disagree that those were improperly admitted. Several of the boys testified that Simmons had them watch pornographic videos on a regular basis, many times as a prelude to or in conjunction with engaging in sexual acts. Therefore, the discovery of these videos corroborated the boys’ testimony, and we are satisfied that the trial court did not abuse its discretion in admitting the videos.
In challenging the photographs at trial, Simmons argued that they were irrelevant because they did not include photos of any of the victims and because they were more prejudicial than probative. The trial court overruled the objection, specifically ruling that the probative value of the photos was not substantially outweighed by the danger of unfair prejudice. On appeal, Simmons argues the photos were irrelevant, more prejudicial than probative, and improper character evidence. Because he only raised the relevancy and prejudicial arguments at trial, he is prohibited from expanding those arguments on appeal.
As for the merits of those arguments, two victims actually testified that they were in the photographs. Additionally, a few of the boys testified that Simmons had taken pictures of them and had showed them pornographic photographs on the computer. Therefore, as with the videos, these photographs corroborate the boys’ testimony, and the trial court did not err in admitting the photographs into evidence.
While criminal charges were pending against Simmons, the parents of several of the boys initiated a civil lawsuit against Simmons. During this civil action, one of the victims, Derek Desanto, gave a videotaped deposition describing his interactions with Simmons. At the time of his deposition, Desanto had not yet been listed in the information as one of Simmons’s victims. Although Simmons’s attorney, who represented Simmons in the civil and criminal matters, had received notice of the deposition, he decided to allow an attorney for one of Simmons’s co-defendants to depose Desanto on Simmons’s behalf. Desanto committed suicide before Simmons’s trial, and Simmons moved to bar the admission of Desanto’s deposition on the basis that it was inadmissible hearsay and would violate his Sixth Amendment right to confront all witnesses. The trial court denied that request.
In his second allegation of error, Simmons contends that the trial court improperly admitted the deposition of a witness who had died prior to the trial and violated his constitutional right to confront all witnesses. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to he confronted with the witnesses against him.” Prior to the landmark United States Supreme Court case Crawford v. Washington, 541 U.S. 36 (2004), the Confrontation Clause did not bar the statement of an unavailable witness against a criminal defendant if the statement bore adequate “indicia of reliability,” which could be inferred where the statement fell within a firmly rooted hearsay exception or contained particularized guarantees of trustworthiness. See Ohio v. Roberts, 448 U.S. 56 (1980). However, Crawford overruled previous precedent and established a new analysis, making clear that any hearsay permitted under the rules of evidence is also subject to the defendant’s constitutional right of confrontation. 541 U.S. at 38. In Crawford, the Court held that, pursuant to the Sixth Amendment, no matter how “firmly rooted” an exception may be, if the statement is “testimonial,” it is admissible only where the declarant is unavailable and the defendant had a prior opportunity to cross examine. Id. at 59. Although the Court declined to give a comprehensive definition of “testimonial,” it gave several examples of the type of statements that would be included in such a definition, including prior testimony at a preliminary hearing, testimony given before a grand jury or a former trial, and police interrogations. Id. at 68.
Rule 804(b)(1) of the Arkansas Rules of Evidence provides that former testimony or deposition testimony of an unavailable declarant can be offered at trial where the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony on direct, cross, or redirect. Section (a)(4) states that a witness is unavailable if that witness is unable to be present or testify because of death. Rule 32 of the Arkansas Rules of Civil Procedure specifically anticipates that deposition testimony may be used against or in place of a witness’s live testimony at trial.
We hold that a deposition taken in anticipation of a future civil trial constitutes a “testimonial” statement as required by Crawford. Therefore, we must determine whether the declarant was unavailable and whether Simmons had a prior opportunity to cross examine that declarant. It is clear to us that Desanto, because he was deceased, was unavailable. Additionally, although Simmons’s civil attorney chose not to cross examine Desanto during the deposition, criminal charges had been filed against Simmons, and his attorney had the opportunity to depose Desanto. The civil trial and the criminal trial involved the same facts and the same participants. The attorney for the co-defendant that cross examined Desanto had the same motive as Simmons — to discredit his testimony regarding the sexual encounters. Therefore, we find no error.
For his final point, Simmons argues that his sentence — forty years on five counts of rape and ten years on a count of producing, directing, or promoting a sexual performance, all to run consecutively — violates the Eighth Amendment’s prohibition on cruel and unusual punishment. However, Simmons never made this argument to the trial court. It is our well-settled precedent that we will not consider an argument — even a constitutional one — that is raised for the first time on appeal. See London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003). We note, however, that on the merits, his argument would fail. Our supreme court has held that a prison sentence, even to a term of life without possibility of parole, is not cruel and unusual punishment. Rogers v. State, 257 Ark. 144, 515 S.W.2d 79 (1974). Furthermore, an appellate court is not free to reduce a sentence-even one it feels is unduly harsh-as long as the sentence is within the range of punishment contemplated by the legislature. Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001). Arkansas Code Annotated § 5-4-401(a)(1) (Repl. 1997) authorizes a sentence of ten to forty years or life in prison for a class Y felony, which rape is considered to be. Additionally, Ark. Code Ann. § 5-4-403 (a) (Repl. 1997) allows a court to impose consecutive sentences for multiple convictions. Therefore, under Bunch, Simmons’s sentence was not unduly harsh.
Affirmed.
Gladwin and Crabtree, JJ., agree.
Simmons had legal custody of at least one of the boys.
The State also argues that even if we find Simmons raised the character-evidence issue below, he never received a ruling on it. From our review of the record, when Simmons first objected to the books, the court summarily overruled the objection on all the grounds Simmons had given, which included inadmissible character evidence and more prejudicial than probative. Simmons then asked the court to reconsider, and Simmons again argued that the jury would be inflamed because of Simmons’s gay lifestyle and that the books were unfairly prejudicial. The court then overruled the objection specifically because the probative value of the books was not outweighed by their prejudicial value. We are satisfied that the court’s initial ruling on Simmons’s objection preserved the issue. | [
49,
-18,
-115,
-98,
25,
96,
106,
60,
2,
-29,
118,
115,
-87,
-38,
68,
106,
-29,
111,
84,
97,
-35,
-89,
39,
65,
-70,
-69,
106,
-43,
-79,
77,
-28,
-76,
76,
116,
-102,
117,
-30,
-56,
-27,
84,
-122,
17,
-72,
-62,
83,
3,
38,
39,
27,
15,
49,
31,
-77,
108,
20,
-53,
9,
108,
67,
-67,
92,
81,
-104,
31,
-19,
22,
-78,
-93,
-99,
0,
-8,
44,
-36,
57,
0,
-24,
-5,
-92,
2,
116,
15,
-120,
-115,
34,
-14,
36,
13,
-57,
-91,
-55,
47,
-81,
-103,
-121,
-102,
1,
64,
108,
-73,
31,
116,
84,
45,
120,
-30,
-60,
124,
100,
-17,
-113,
-100,
-109,
-49,
32,
78,
-14,
-37,
59,
0,
117,
-51,
-74,
116,
-41,
120,
-41,
-114,
-105
] |
John B. Robbins, Judge.
Appellant David Weeks and appel-lee Kay Wilson were divorced on July 12, 2000, after a sixteen-year marriage. There were no children bom of the marriage. The divorce decree divided the parties’ assets and debts, and ordered Mr. Weeks to pay monthly alimony of $400.00 for a period of five years. On January 5, 2005, Ms. Wilson filed a motion seeking an extension and increase in alimony on the basis that there had been a material change in circumstances since the entry of the divorce decree. After a hearing, the trial court found that Ms. Wilson met her burden of proving a material change in circumstances, and on May 20, 2005, ordered Mr. Weeks to pay monthly alimony of $500.00 for an indefinite duration.
Mr. Weeks now appeals from the trial court’s May 20, 2005, order that modified his alimony obligation. He argues that the trial court erred in denying his motion to dismiss because Ms. Wilson failed to prove a material change in circumstances to justify the modification. Mr. Weeks further argues that the trial court erred in failing to consider Ms. Wilson’s failure to rehabilitate herself during the five-year period following the divorce. We affirm.
Modification of an award of alimony must be based on a change of circumstances of the parties. Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (1998). The burden of showing a change in circumstances is always upon the party seeking the change in the amount of alimony. Hass v. Hass, 80 Ark. App. 408, 97 S.W.3d 424 (2003). The primary factors to be considered in making or changing alimony are the need of one spouse and the ability of the other spouse to pay. Id. We review domestic-relations cases de novo, but we will not reverse a finding of changed circumstances warranting a modification of alimony unless clearly erroneous. See id.
Ms. Wilson testified that she is fifty-six years old and is five years older than Mr. Weeks. She has lived in an apartment for the past five years and pays $735.00 in rent, plus utilities. Ms. Wilson stated that she plans to move to another location because she can no longer cope with climbing the stairs to her apartment.
Ms. Wilson stated that at the time of the divorce she was working as a massage therapist, and that she also worked as a receptionist for a chiropractor. In December 2000, Ms. Wilson began working as a course coordinator for the University of Arkansas for Medical Sciences (UAMS), and has been employed there ever since.
Ms. Wilson testified that she was diagnosed with rheumatoid arthritis and osteoarthritis in November 2000. As a result, she experiences pain and swelling in her knees, hands, and wrists, for which she takes medication. Ms. Wilson stated that the pain and swelling keep her from being active, and that she never has a pain-free day.
Ms. Wilson had been earning $50.00 per hour as a massage therapist, and her rate of pay at UAMS is $11.18 per hour. She testified that she works about thirty hours per week and that due to the deterioration of her health, “I can’t work anymore than I’m doing.” Ms. Wilson stated that she has not considered seeking other or additional employment “because I have an excellent situation because my boss is so flexible and very understanding of my disease.” Ms. Wilson reported $740.00 of income from doing massage therapy in 2000, but has since made no meaningful earnings from that occupation.
Ms. Wilson indicated that her current net pay is $325.00 per week and that she gets a two-percent raise each year. In her affidavit of financial means prepared during the pendency of the divorce, Ms. Wilson claimed weekly net pay of $386.44, which included an estimated $150.00 per week for massage therapy. Ms. Wilson testified that she was healthy at the time of the divorce, and that due to her current health problems and limitations she cannot make ends meet without alimony.
Dr. Columbus Brown, a rheumatologist, testified that he has examined Ms. Wilson on multiple occasions. He stated that Ms. Wilson has a severe form of rheumatoid arthritis, which if left untreated would result in deformities and debilitation. Dr. Brown testified that the disease can be controlled with medicine and that Ms. Wilson has done well on her current drug treatments. However, he gave the opinion that Ms. Wilson cannot engage in massage therapy because if she had to do manual work with her hands on a daily basis, she would suffer from frequent flare-ups from her rheumatoid arthritis. Dr. Brown did not think Ms. Wilson could ever return to performing massage therapy, although he agreed that she is capable of performing her full-time employment at UAMS.
Dr. Ricardo Zuniga began treating Ms. Wilson on January 15, 2002, and he stated the following in a letter dated February 6, 2004:
I am treating her for rheumatoid arthritis, a chronic inflammatory condition that affects especially her hands and knees. Currently, this patient has very active disease involving her hands, which produces severe pain and limitation in the range of motion in her joints, especially in her hands. This is a chronic condition that will persist, however I am offering her the treatment recommended for such cases, and her response has not been the best to those medications. I can not predict her future response, but up to now the medications used failed to control her condition.
I understand that Ms. Wilson works or used to work part-time giving massages. To a reasonable medical certainty, I consider that due to the inflammatory condition involving the small joints in her hands, using her hands to give massages would be very difficult/painful to do, and in addition it would increase the stress in the already inflamed joints; for that reason I consider that she can not perform massage due to her active inflammatory process. At this time I can not predict her future response to medications, for that reason I can not say now if such inability will be permanent or not.
Mr. Weeks testified on his own behalf and stated that he has been employed as a conservationist for the federal government for the past twenty years. In his affidavit of financial means prepared in anticipation of the divorce, Mr. Weeks claimed a weekly net pay of $1076.88, and at the most recent hearing he stated that his annual gross income had increased by $20,000.00 since the time of the divorce. Mr. Weeks indicated that his raises were anticipated and were consistent with those he received prior to the divorce.
In the order modifying Mr. Weeks’ alimony obligation, the trial court made the following findings:
At the time of entry of the Decree of Divorce, the Court had hoped that Plaintiffs massage therapy business would substantially increase her income. The Court considered that since entry of the Decree, Plaintiff was diagnosed with rheumatoid arthritis which precluded her from performing massage therapy. The Court also considered other factors, including but not limited to, that Plaintiff felt she was unable to work beyond her full-time clericaljob because of pain and fatigue, and the Defendant’s increase in his income since the entry of the Decree.
Plaintiff has met her burden of proving a material change in circumstances and as such warrants a continuation of alimony as well as an increase therein. Effective for entry of this Order, Defendant shall hereafter pay Plaintiff the sum of $500 per month as alimony, such alimony to continue indefinitely.
Mr. Weeks argues on appeal that the trial court erred in converting the alimony award from a specified term to an indefinite term and in increasing the amount. He contends that Ms. Wilson failed to establish a material change in circumstances to support such a modification.
Mr. Weeks does not dispute the fact that Ms. Wilson was diagnosed with rheumatoid arthritis and cannot return to massage therapy, but disputes that she was expected to earn more money as a massage therapist than she currently earns at her full-time job. Mr. Weeks notes that when Ms. Wilson was diagnosed in 2000, her total gross income from massage therapy was $740.00. Since then she has earned no reportable income from massage therapy. While Ms. Wilson charged $50.00 per hour for massage therapy, Mr. Weeks asserts that this did not take into account overhead expenses or taxes, and further submits that the availability of full-time work in that field was in question. Given the uncertainty related to Ms. Wilson’s expectation of income from massage therapy, Mr. Weeks contends that her inability to perform that job does not amount to a change in circumstances.
Mr. Weeks also contests the severity of Ms. Wilson’s condition. While Ms. Wilson subjectively reported pain and fatigue, Mr. Weeks notes that Dr. Brown testified that her disease is in remission. Dr. Brown stated that in January 2005 he found Ms. Wilson to be without fatigue or joint pain. Given her physical abilities and intellectual capacity, Mr. Weeks argues that Ms. Wilson had ample time to consider other employment and rehabilitate herself after the divorce, but failed to do so.
Finally, Mr. Weeks takes issue with the trial court’s pronouncement at the conclusion of the hearing that Ms. Wilson’s income is substantially less than it was five years ago. Mr. Weeks asserts that this finding is incorrect, noting that her 2000 tax return showed income of $17,120, while her 2004 tax return showed income of $21,641. Mr. Weeks contends that any earnings Ms. Wilson realized from massage therapy at the time of divorce were nominal at best, and that her income has gradually increased since then. Mr. Weeks further argues that his gross annual salary increase of $20,000 cannot be considered a change in circumstances because such increase was anticipated at the time of the divorce.
Mr. Weeks compares this case to Russell v. Russell, 281 Ark. 473, 665 S.W.2d 271 (1984). In that case the appellant was awarded alimony for a definite term, and subsequently petitioned the trial court to modify its original decree by continuing the allowance of alimony. The trial court denied her petition based in part on the factors that appellant’s financial circumstances were about as had been expected and the appellant had made no effort to rehabilitate herself and secure employment, and the supreme court affirmed. In the present case, Mr. Weeks contends that modification of alimony was not justified because Ms. Wilson’s income was about what was anticipated at the time of divorce, and at any rate her financial condition resulted from her failure to pursue more profitable employment.
We hold that the trial court did not clearly err in finding a material change in circumstances, and in increasing the alimony to $500.00 per month for an indefinite period. We agree with Mr. Weeks that the evidence did not support the trial court’s comment at trial that Ms. Wilson’s income had substantially decreased. However, the trial court’s written order does not include or rely on this finding. The order instead recites that Ms. Wilson was diagnosed with rheumatoid arthritis that precludes her from performing massage therapy, and that she cannot perform any additional work due to pain and fatigue. These findings are supported by the evidence and amount to a change in circumstances justifying a modification of alimony.
While Dr. Brown testified that Ms. Wilson’s rheumatoid arthritis was in remission and she was responding to treatment, he also characterized her condition as “severe” and stated that she will never be able to return to massage therapy. Moreover, Ms. Wilson testified that her life is very limited due to the pain and swelling caused by her disease, and that she is physically unable to work more than her thirty-hour weekly shift at UAMS, where she is accommodated well by her boss due to his understanding of the disease. The trial court found Ms. Wilson to be a credible witness, and we defer to the trial court’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. See Akins v. Mofield, 355 Ark. 215, 132 S.W.3d 760 (2003).
While it is uncertain how much income Ms. Wilson could have earned as a massage therapist, the trial court found that her arthritis not only prevented her from performing that job, but also limited her potential employment in other fields. In assessing alimony the trial court considers a variety of factors, including the health and medical needs of the parties, as well as their earning capacities. See Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). In this case there was evidence that due to Ms. Wilson’s deteriorating health, her earning capacity was significantly less than anticipated at the time of the divorce, and that any failure of occupational rehabilitation was thus beyond her control. The trial court ruled that Ms. Wilson established the need for an increase in alimony, as well as Mr. Weeks’ ability to pay, and we affirm the trial court’s decision.
Affirmed.
Hart and Glover, JJ., agree. | [
-80,
108,
-75,
110,
-37,
0,
-85,
-116,
106,
-95,
-89,
83,
-81,
-46,
84,
105,
16,
107,
65,
98,
-107,
-77,
7,
97,
119,
-109,
-39,
-37,
-75,
95,
-12,
-41,
77,
48,
-126,
-43,
66,
-54,
-51,
80,
-50,
6,
10,
69,
-8,
67,
36,
103,
8,
15,
53,
-82,
-109,
45,
48,
78,
104,
44,
93,
41,
-48,
-32,
-118,
5,
127,
20,
-111,
4,
26,
45,
88,
42,
-104,
48,
10,
-24,
115,
-74,
-126,
52,
109,
-69,
33,
112,
98,
16,
5,
-3,
-108,
-104,
14,
-44,
31,
-92,
-37,
80,
74,
12,
-66,
-98,
109,
20,
-124,
-66,
124,
28,
29,
96,
14,
-38,
-78,
-7,
-115,
88,
40,
-104,
-29,
-91,
17,
97,
-51,
-30,
92,
87,
120,
-109,
-118,
-110
] |
Robert J. Gladwin, Judge.
Appellant Ricky Glenn S ^Steward was charged with four counts of attempted capital murder and one count of attempted first-degree murder, stemming from events that occurred on June 1, 2003, involving five police officers from the Jackson County Sheriffs Department. A Jackson County jury found appellant guilty of one count of attempted second-degree murder and three counts of aggravated assault and found him not guilty of all charges related to one particular officer. FoEowing the jury’s verdict, the trial court sentenced him to serve twenty-five years at the Arkansas Department of Correction. Appellant raises two points on appeal: (1) the trial court erred in granting the State’s motion to restrain him in the presence of the jury during trial; and (2) the trial court erred in denying his motion to suspend the proceedings to determine whether he was competent to stand trial. We affirm.
On June 20, 2003, the Jackson County Circuit Court ordered that appellant undergo a mental-health evaluation upon defense counsel’s motion. Dr. William Cochran, a psychologist at the North Arkansas Human Services System in Kensett, interviewed appellant. In appellant’s history, it was noted that Dr. Cochran had previously evaluated him on April 16, 2002, and had opined at that time that he was competent to stand trial on charges unrelated to the current charges and was able to appreciate the criminality of his actions and to conform his behavior to the requirements of the law. Based on appellant’s most recent examination, Dr. Cochran determined that appellant demonstrated a fully-developed, persecutory-type delusion, and Dr. Cochran opined that appellant was not currently competent to stand trial. On September 12, 2003, the trial court entered a not-fit-to-proceed commitment order. The trial court found that, pursuant to Ark. Code Ann. § 5-2-310, the proceedings would be suspended and that appellant would be committed to the custody of the Director of the Department of Human Services for detention, care, and treatment until restoration of fitness to proceed. The Department was ordered to report back within ten months.
On September 23, 2003, appellant was admitted to the Arkansas State Hospital (ASH) for treatment, and a forensic report was filed on February 17, 2004. In an initial interview, Dr. Charles H. Mallory, a staff psychologist, found him “unresponsive and preoccupied with military protocol and an apparent active delusion in which he perceived the ASH staff as involved in his military detention . . . .” Over the course of his treatment, appellant told the staff that in the early 1990s he began to understand that the county judge and the Newport police were corrupt and that it was his duty to correct the situation. On October 17, 2003, appellant was “discovered crawling on his belly in front of the nurses’ station, and had a razor in his hand, saying that his mission was to ‘take out everybody’ on Gunny’s orders.” Appellant had been taking Haldol and Zyprexa for approximately four months at the time of examination on January 23, 2004. In the forensic report, Dr. Mallory and Dr. Kenneth Dowless, a forensic staff psychiatrist, noted that appellant had improved from his previously diagnosed condition. The doctors reported that, at the time of the examination, appellant had mental disease but not mental defect and that he had the capacity to understand the proceedings against him and the capacity to assist effectively in his own defense. They concluded, “It is unlikely that his mental condition will deteriorate due to the stress of awaiting trial or the stress of trial itself, as long as he can be maintained on his current regimen of medications.” (Emphasis in original.) The doctors also opined that, at the time of the alleged offenses, appellant did not lack the capacity to appreciate the criminality of his conduct but that, due to mental disease, he lacked the capacity to conform his conduct to the requirements of the law.
A competency hearing was held on June 21, 2004, at the conclusion of which, the trial court stated that “the defendant does not fit under the McNaughton rule at the time of the event, that it is a fact question, will be a fact question for the jury.” Appellant does not challenge any aspect of that proceeding.
Appellant’s trial was scheduled for August 2, 2004. On July 22, 2004, the State filed a motion to require that appellant be restrained during the proceedings. A hearing on the State’s motion to restrain was held on August 2, 2004, and the trial court heard testimony regarding charges that arose from events that occurred in 1997 and in 2001 and testimony relating to the current charges stemming from events that occurred on June 1, 2003.
Events on November 21, 1991
The evidence showed that on November 27, 1997, Newport Police Officer Wade Honey was standing at the back door of the police department when he saw a white car going the wrong way on Second Street, which runs between the sheriffs office and the police department. The car’s headlights were not on, and it was traveling at approximately eighty miles per hour. Honey began the pursuit, and Crestón Hutton with the Arkansas State Police was called to assist. Hutton attempted to block the road using his police vehicle. Instead of stopping, appellant rammed his vehicle into the rear of Hutton’s car. In continuing the pursuit, appellant narrowly avoided a head-on collision with Sheriff Jim Bishop’s car. At another point during the pursuit, Honey pulled in front of appellant’s stopped car, and Hutton attempted to block it by pulling in behind him. Appellant backed up his car and rammed it into the front of Hutton’s car, and then drove forward, hitting Honey’s car, before he fled again. Honey fired one round into the rear bumper of appellant’s car. At the Waldenburg city limits, appellant slammed on his brakes and then backed up and almost hit Lieutenant Michael Scudder’s car. Honey forced appellant’s vehicle into a ditch, where it became stuck in the mud. According to Honey, appellant “held the accelerator wide open till the engine blew up.”
Officers then attempted to get appellant out of the vehicle. Appellant put his arms up through the steering wheel and refused to let go. Honey climbed into the front seat while another officer struggled from the other side to force appellant’s arms back through the steering wheel. Finally, they got him loose, and the other officer dragged appellant out through the car’s window. Scudder recalled that appellant spit on an officer. Appellant was pepper sprayed, and it took several officers to get him out of his car and handcuffed.
Scudder testified that he had not seen appellant cause any trouble inside a courtroom but that he recalled a disruption getting appellant to go inside the courthouse after leaving the jail. Scudder also recalled that, when appellant was being taken back to the jail, the deputy he was following had to pull over because appellant had kicked the door so hard that it bowed. The officers put a different restraint on him so that he could no longer kick the door.
Events on July 11, 2001
Patrolman Michael Calendar with the Newport Police Department testified that on July 11, 2001, he saw a suspicious van in a residential neighborhood. He said that the van pulled over and let him pass every time he attempted to run the tags on it. He said he noticed the van following him. He turned around to return to the neighborhood, and the van turned around as well. Calendar finally got an opportunity to run the tags, and he learned that the van belonged to appellant out of North Carolina. Calendar was instructed by another officer to stop the vehicle in order to find out whether the driver was lost. Calendar activated his lights, but appellant continued to drive. Patrolman Mike Wilson joined the pursuit, and Calendar activated his siren. Lieutenant David Ervin also joined the pursuit. Two officers from the Diaz Police Department, who had been called to assist, attempted to block appellant’s van. As Diaz Sergeant Charles Moss was exiting his car, the van slowed, then accelerated suddenly, and hit the Diaz patrol car, disabling both cars. Diaz Officer Dale Jackson testified that appellant exited his vehicle and began ranting that the officers had hit his van. Appellant kept coming toward the officers, even though they had instructed him to get on the ground, and Jackson even drew his weapon at one point. When the other units arrived, appellant fled on foot.
Scudder encountered appellant running in his direction. Scudder attempted to block appellant’s path with his car. Appellant went over the hood, fell to the ground, and then got up and continued to run. Eventually, the officers decided to stop pursuing appellant, and so they returned to the scene of the accident. Appellant returned to the scene as well and yelled and cursed at the officers. When the officers attempted to chase him, he fled again. According to Scudder, appellant called 911 from every payphone between the scene of the accident and the police department. Scudder said that appellant was sitting in front of the police department the following morning but would not let the officers get close.
Events on June 2, 2003
Sergeant James Brock with the Jackson County Sheriffs Department testified regarding the incident that occurred on June 1, 2003, that led to appellant’s current charges. Brock and Deputy Toni Moss were dispatched to appellant’s residence in reference to “unknown trouble.” A child opened the door to the residence, and Brock saw appellant sitting in a chair across the room. Appellant appeared to be calm and assured the officers that everything was all right. The officers left the residence, but within five or ten minutes, they were summoned back to the residence. Brock, Moss, Tammy Selvidge, a reserve deputy in training, Deputy Chuck Benish, and Sergeant Mike Miller responded. As they arrived at his residence, appellant fired several shots at them, and one of the bullets hit Moss in the leg. Appellant then fled the scene and remained at large for three days.
Following the hearing on the State’s motion to restrain appellant during the proceedings, appellant gave the trial judge his word as a United States Marine that he would not disrupt the proceedings. The trial court did not specifically rule on the State’s motion at that point in time.
Before the trial proceedings began on the following day, defense counsel requested a bench conference. Defense counsel informed the trial court that appellant said he was hearing voices and suggested that the court allow appellant to speak to one of the doctors present at the proceedings. The trial judge responded, “Well, I’ve done that once.”
The trial proceedings resumed, and some time later, defense counsel asked for another bench conference. Defense counsel again advised the trial court that appellant said he was hearing voices. Specifically, appellant was having conversations with “Gunny” who informed him that he had a right to be tried in military court. At that point, the trial judge ruled that appellant would be restrained during the trial, but he gave the jury a limiting instruction. In his ruling, the trial judge stated:
All right, the Court will make a record that he is not shackled but he has leg chains on and the reason is that the prior actions of the defendant, how strong he is, and unresponsive he is, I’m afraid to get him around the jury but I have kept his leg chains on. With the strength of the defendant and his prior actions with the police officers indicate to me that he should be in chains and the fact that he has mn before from police. I’ll give them a limiting instruction at the correct time. I think I’m required to as a matter of fact. I’ll tell them that now.
At a third bench conference, defense counsel told the court that appellant was still communicating with his gunnery sergeant and that his competency to stand trial was being called into question again. The trial court refused to order an additional mental evaluation.
Toward the end of appellant’s case in chief, defense counsel informed the trial court that appellant wished to testify against counsel’s advice. The following colloquy occurred between the trial court and appellant:
Appellant: Sir, as a United States Marine, my staff non-commissioned officer, Gunny Sergeant Williams, has authorized me to testify before you at this time, Sir.
The Court: Well, what does that mean, Mr. Steward?
Appellant: It means my Gunny told me to get up there and tell the truth.
The Court: Do you wish to testify?
Appellant: Yes, sir.
The Court: Do you understand you have the right not to testify?
Appellant: As it stands right now, my Gunny told me to testify, I will testify, Sir.
The Court: And you understand that your Gunny Sergeant is not your lawyer and he is not skilled like your lawyer is.
Appellant: I’ve been in the marines fourteen years, he hadn’t steered me wrong yet, Sir.
The Court: Well, step around here and get on the stand.
Appellant testified that the police had been harassing him since 1997. He stated that he believed the officers who arrived at his residence on June 1, 2003, were there to kill him. In fact, he heard one of the officers say, “Let’s kill him this time.” Appellant stated that he was under orders from “Gunny” to fire at the officers so that they would leave him alone. He insisted, however, that he was not trying to kill the officers. He said he was an expert with the M-16 A2 service rifle and could have shot and killed the officers if he had wanted to do so. Appellant testified that “Gunny” was real and that the Marine Corps had sent “Gunny” to assist him in his secret mission to liberate Newport. Appellant stated that at the state hospital, which he referred to as an interrogation camp, doctors had diagnosed mental disease or defect. He insisted, however, that he did not have a problem. Concerning his secret mission, appellant testified that he had collected information about key officials in Newport and was sending the information to the Department of Justice in Washington, D.C.
On cross-examination by the prosecutor, appellant stated, “Sir, it is my duty to let you know that I am a prisoner of war. Under the Prisoner of War Act of the Geneva Commission (sic), the only thing I can be allowed to give you is my name, rank, and serial number. I cannot be interrogated.” The prosecutor responded, “You can’t even acknowledge if you know who I am?” Appellant answered, “Steward, Staff Sergeant, 43143704.”
Following deliberations, the jury convicted appellant of attempted second-degree murder against Moss and three counts of aggravated assault against Selvidge, Brock, and Miller. The jury found appellant not guilty of all charges that pertained to Benish. Because the jury was unable to arrive at a decision on appellant’s sentence for the offenses, the trial court sentenced him to serve twenty-five years at the Arkansas Department of Correction.
On appeal to this court, appellant first argues that the trial court erred in granting the State’s motion to require him to be restrained during the proceedings. Arkansas Rule of Criminal Procedure 33.4 provides the following:
Defendants and witnesses shall not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he shall enter into the record of the case the reasons therefor. Whenever physical restraint of a defendant or witness occurs in the presence ofjurors trying the case, the judge shall upon request of the defendant or his attorney instruct the jury that such restraint is not to be considered in assessing the proof and determining guilt.
It is not prejudicial per se when the defendant is brought into a courtroom handcuffed or leg-cuffed. Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992). Almost without exception, our prior decisions that have upheld the use of restraints have involved defendants charged with violent offenses or who have engaged in disruptive behavior, or attempted escape. Id. The trial court has discretion to use physical restraints on a defendant for security purposes and to maintain order in the courtroom. Woods v. State, 40 Ark. App. 204, 846 S.W.2d 186 (1993). Moreover, the trial judge is in a better position to evaluate the potential security risks involved. Id. We will not presume prejudice when there is nothing in the record to indicate what impression may have been made on the jurors and when appellant has offered no proof of prejudice. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985).
Appellant argues that the record does not support the trial court’s reasons for restraining him. He further argues that the State’s witnesses conceded that he had never been disruptive in a courtroom before and that he was quiet during the proceedings. The record does indeed support the reasons stated by the trial court. Appellant was charged with having committed violent offenses and was clearly prone to fleeing from authorities. Scudder testified that it took several officers to remove appellant from his vehicle and get him handcuffed and that it was not easy to subdue appellant even with the use of mace. Scudder also testified that appellant kicked a patrol car’s door so hard that it bowed. Under these circumstances, we cannot say that the trial court abused its discretion in ordering that appellant be restrained during the proceedings. Moreover, the trial court properly instructed the jury to disregard the fact that appellant had on leg chains and to give that fact no consideration during its deliberations as to appellant’s guilt or innocence. Furthermore, appellant cannot show that prejudice resulted from the trial court’s use of restraints because the jury convicted him of lesser-included offenses, found him not guilty of any offense related to one officer, and could not agree on what sentence he should receive.
Next, appellant argues that the trial court erred in refusing to suspend the proceedings to ascertain whether he was competent to stand trial. Arkansas Code Annotated section 5-2-302 provides that no person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or her or to assist effectively in his or her own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures. If the court determines that the defendant lacks fitness to proceed, the proceeding against him shall be suspended. Ark. Code Ann. § 5-2-310(a). If the court, pursuant to the report of the Director of the Department of Human Services, or as a result of a hearing on the report, determines that the defendant is fit to proceed, prosecution in ordinary course may commence. Ark. Code Ann. § 5-2-310(b)(2)(B).
When an accused raises the defense of mental disease or defect or places his or her competency in issue, the trial court must follow the procedures for evaluation set out in Ark. Code Ann. § 5-2-305. An evaluation performed under that section does not ordinarily require a second opinion, and further evaluation is discretionary with the trial court. Dyer v. State, 343 Ark. 422, 36 S.W.3d 724 (2001).
The law is well settled that a criminal defendant is presumed to be mentally competent to stand trial, and the burden of proving incompetence is on that defendant. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996). The test for determining an accused’s competency to stand trial is whether he is aware of the nature of the proceedings against him and is capable of cooperating effectively with his attorney in the preparation of his defense. Id. On appellate review of a finding of fitness to stand trial, we affirm if there is substantial evidence to support the trial court’s finding. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996).
Appellant argues that two psychologists and a psychiatrist diagnosed mental disease and defect and that Dr. Mallory and Dr. Dowless determined that he was unable to conform his conduct to the requirements of the law relative to incidents that occurred in 1997 and 2001. Appellant concedes that the trial court conducted a hearing on his competency but asserts that, “however, unlike a determination of ones (sic) capacity to conform his conduct with the requirements of the law at a particular time, the issue of whether the appellant was fit to proceed should always be considered, irrespective of any prior considerations of the same.” He argues that, because his counsel made the trial court aware that he (appellant) was hearing voices during the course of the trial, there was clearly sufficient reason to doubt his fitness to proceed pursuant to Ark. Code Ann. § 5-2-305(D).
According to Dr. Mallory and Dr. Dowless, appellant did not lack the capacity to understand the proceedings against him and to assist effectively in his own defense, which is the linchpin of Ark. Code Ann. § 5-2-302(a). The trial court properly suspended the proceedings and ordered that appellant undergo a mental-health evaluation upon defense counsel’s motion in accordance with Ark. Code Ann. § 5-2-305. Once his fitness to proceed was restored, the prosecution commenced in accordance with Ark. Code Ann. § 5-2-310. Here, the trial court followed the dictates of the statutes to the letter, and any further mental-health evaluations were purely discretionary with the trial court. There was no evidence, and appellant has not so much as suggested, that he was not receiving the regimen of medications prescribed to treat his mental condition. The trial court was in a better position to judge whether an additional mental-health evaluation was warranted based on appellant’s alleged hearing of voices. Under these circumstances, we cannot say that the trial court abused its discretion.
Affirmed.
Vaught, Crabtree, and Baker, JJ., agree.
Robbins and Griffen, JJ., dissent. | [
16,
-21,
-59,
-66,
27,
64,
26,
44,
83,
-46,
103,
115,
-25,
-57,
1,
105,
104,
125,
117,
125,
-39,
-78,
39,
97,
-78,
-13,
57,
-59,
-78,
75,
-12,
-108,
25,
120,
-54,
81,
-30,
64,
-25,
88,
-122,
1,
-103,
116,
82,
2,
40,
34,
-110,
-113,
37,
30,
-30,
42,
17,
-53,
73,
40,
89,
47,
64,
115,
-46,
13,
-51,
20,
-93,
-92,
-101,
3,
120,
54,
-40,
49,
0,
-8,
115,
54,
-126,
116,
107,
-103,
12,
100,
98,
32,
29,
-57,
40,
-88,
30,
126,
-99,
-89,
-104,
89,
75,
12,
-105,
-41,
118,
116,
12,
-4,
127,
4,
81,
108,
-121,
-34,
-108,
-111,
-52,
48,
22,
-14,
-21,
5,
112,
117,
-51,
-30,
-44,
87,
115,
-101,
-109,
-42
] |
Judith Rogers, Judge.
Arkansas Blue Cross & Blue Shield appeals from a judgment in which it was held liable for the payment of medical expenses incurred by appellee, Paul Foerster, after the termination of his policy under a group plan of insurance. Presenting two issues for reversal, appellant contends that the trial court erred by not correcting an error of law made in a preliminary ruling, and that the court erred in ruling that coverage continued after the cancellation of the insurance con tract due to the non-payment of premiums. We agree with appellant’s assertion that the policy does not extent coverage for expenses incurred after the termination of the policy. Therefore, we reverse.
In November of 1984, appellee’s wife began working at Farmers and Merchants Bank in Rogers, Arkansas. As an employee, she was entitled to participate in a plan of group insurance offered by the bank under a policy issued by appellant. Appellee became an insured member of the plan by virtue of his wife’s having selected the option of family coverage. In early April of 1985, appellee sustained a work-related injury to his back. Shortly thereafter, on May 16th, appellee’s wife quit her job and obtained employment at another local bank. The insurance contract in this case provides that premiums were to be paid in advance on a monthly basis, and that the member’s contract would terminate as of the last day of the month for which premiums had been collected. Since appellee’s wife was no longer employed by the bank, her name was not included in the group billing statement for June, and consequently no premium was remitted. Thus, the last premium payment received by appellant on behalf of appellee was for the month of May. Also under the contract, members of the plan were afforded the privilege of continuing coverage as an individual subscriber upon the termination of employment, if application for conversion is made within thirty-one days. However, no application for conversion was requested in this case. According to the stated terms of the contract, the policy was terminated, effective June 1, 1985.
As noted previously, appellee injured his back in April, and he received treatment for this injury both before and after the policy was terminated. Initially, appellee’s family physician recommended treatment at a physical therapy clinic and, in addition, appellee was also seen by a chiropractor. By August, when his condition had not improved, he was referred to a specialist, and that September, he underwent surgery for the repair of a herniated disc.
A dispute arose between the parties as to the extent of appellee’s coverage under the policy, which eventually led to the filing of this lawsuit by appellee. The conflict primarily involved the question of appellant’s liability for post-termination benefits. Early on in the case, both parties moved for summary judgment. By order of June 1, 1987, the trial judge ruled that appellant continued to be liable for all medical expenses reasonably related to appellee’s back injury, despite the cancellation of the contract, because the injury had occurred during the life of the policy. The trial judge also determined, however, that certain questions of fact remained, and those issues, which are not relevant here, were bound over for trial. A bench trial was held in July of 1989, at which time the court was presided over by a different judge. In a letter opinion, dated, April 2,1991, the trial judge expressed the view that, based on his interpretation of the contract, he did not consider appellant liable for expenses related to the injury which were incurred after the termination of the contract. Nevertheless, he declined to depart from the previous judge’s decision on that issue, and judgment was entered in favor of appellee in the sum of $7,039. Appellant then filed a motion for a new trial, asking the court to reconsider its decision not to alter the previous ruling on the question of post-termination liability. The motion was denied.
The principal issue in this appeal is whether or not appellant is responsible for the payment of benefits for expenses incurred when the policy was no longer in effect. The courts that have dealt with this question have generally drawn a distinction between “medical expense” policies on one hand, as opposed to “accident” or “illness” insurance policies on the other. Mote v. State Farm Mut. Auto. Ins. Co., 550 N.E.2d 1354 (Ind. Ct. App. 1990); Ewalt v. Mereen-Johnson Machine Co., 414 N.W.2d 28 (S.D. 1987); Auto-Owners Ins. Co. v. Blue Cross & Blue Shield, 349 N.W.2d 238 (Mich. 1984); Wulffenstein v. Deseret Mut. Benefit Ass’n., 611 P.2d 360 (Utah 1980); Blue Cross of Florida, Inc. v. Dysart, 340 So. 2d 970 (Fla. Dist. Ct. App. 1977); Bartulis v. Metropolitan Life Ins. Co., 218 N.E.2d 225 (Ill. 1966). See also Annot., 66 A.L.R.3d 1205 (1975). This distinction is grounded on the differing risks these policies are intended to insure against. Auto-Owners Ins. Co. v. Blue Cross & Blue Shield, supra. It is said that if the policy is an accident or illness policy, the insured risk is considered the accident or illness itself. Conversely, if a policy provides coverage for expenses or charges, it is the incurring of expenses which is considered the contingency that gives rise to the insurer’s liability. See Wulffenstein v. Deseret Mut. Benefit. Ass’n, supra. Thus, when an insurance policy insures against accidental injury, the insured’s right to receive benefits is considered “vested” upon the occurrence of the accident, and termination of the insurance policy does not affect the insurer’s liability or its duty to pay benefits for related medical expenses incurred after the termination of the policy. Mote v. State Farm Mut. Auto. Ins. Co., supra. However, when a policy insures against the incurrence of medical expenses, the benefits cease when the policy is terminated and the insurer is not responsible for expenses which arise after termination. Id; Ewalt v. Mereen-Johnson Machine Co., supra. Ultimately, the result in these cases depends on the construction of the particular insurance policy in question.
Here, the policy is referred to as a “Comprehensive Major Medical Contract.” It includes the following pertinent terms:
ARTICLE XII. OTHER PROVISIONS
D. The premium rates initially effective shall be shown in the Group Master Contract, and continuance of coverage hereunder shall be contingent upon the receipt of the premiums by the Plan at the Home Office of the Plan in Little Rock, Arkansas.
I. Upon termination of employment you may continue coverage as an individual subscriber. To do this you must apply to us within 31 days of termination. Upon conversion rates and benefits may be substantially different. If you fail to convert, all benefits shall cease as of the last day for which premiums have been collected.
M. Upon termination of this contract, all benefits, except charges incurred prior to termination, shall cease.
Further reading of the policy discloses that coverage is described in terms of “expenses,” “charges,” and “services,” such that it is evident that the insured risk was the expense related to treatment that is received, and not the underlying accident or a described illness. Based on the above-quoted provisions, it is also apparent that continuing coverage is contingent upon the payment of premiums, and that the entitlement to benefits ceases in the event that the policy is terminated when premiums are not paid. All of these considerations lead us to the conclusion that appellant is not responsible for the payment of benefits for medical expenses incurred after the policy was canceled. As the Florida Appellate Court said in Blue Cross of Florida, Inc. v. Dysart, supra:
We think the trial court erred. While the court’s rationale may, in proper instances, be applicable to an accident and health policy, it is not applicable to hospitalization and medical expense policies which afford benefits only during the time of coverage. Here, coverage was provided to the plaintiff as a Blue Cross/Blue Shield group subscriber. Continuation of that coverage was to be furnished in consideration of payment in advance of the rates applicable for the type and extent of coverage specified in the contract. Thus, it appears that coverage, to be effective, is dependent upon continued payment of premiums by the subscriber. It seems, therefore, axiomatic that upon termination of the contracts and cessation of premium payments the only coverage available is that stipulated in the contracts. We note the lack of any stipulated posttermination benefits in the contract in this case.
Dysart, 340 So. 2d at 972.
In support of the judgment, appellee makes the argument that the language of the policy is ambiguous and that the terms should be strictly construed so as to provide coverage. We discern no ambiguity, however. We think that the language of the policy is unmistakably clear that liability is predicated on the incurrence of expenses, and that the express terms of the contract dictate that liability for such expenses cease upon the termination of the contract. Therefore, it is unnecessary to resort to the rules of construction and the policy will not be interpreted to bind the insurer to a risk that it plainly excluded and for which it was not paid. Baskette v. Union Life Ins. Co., 9 Ark. App. 34, 652 S.W.2d 635 (1983). Appellee also advances the argument that the termination of the policy was ineffective in that appellant did not give notice of the cancellation. However, the policy contains no provision mandating that members be given notice of the termi nation of the contract. Consequently, notice was not required. See Clapp v. Sun Life Assurance Co., 204 Ark. 672, 163 S.W.2d 537 (1942).
In sum, based upon our review of the record and the insurance policy in this case, we hold that appellant is not liable for posttermination benefits. Because reversal is required on this point, we need not address appellant’s alternative ground for reversal of the judgment.
Reversed.
Jennings, J., agrees.
Cooper, J., concurs in the result. | [
-112,
124,
-43,
-84,
8,
-32,
114,
-106,
86,
-120,
-89,
83,
-3,
-32,
21,
107,
-32,
13,
97,
96,
-105,
51,
23,
104,
-10,
-109,
81,
69,
-72,
79,
-28,
-97,
92,
56,
-118,
-43,
102,
2,
-51,
-112,
2,
6,
-85,
-27,
89,
71,
112,
-22,
80,
71,
112,
-98,
-93,
44,
48,
-61,
44,
8,
74,
-79,
80,
-16,
-118,
5,
111,
17,
49,
4,
-102,
7,
-40,
46,
-104,
49,
8,
-55,
114,
-90,
-122,
36,
119,
25,
4,
98,
103,
48,
48,
-19,
-36,
-72,
38,
-98,
31,
-121,
-110,
57,
27,
7,
-65,
-97,
70,
12,
-122,
-4,
124,
-115,
15,
108,
1,
-114,
-44,
-79,
-17,
96,
28,
-93,
-9,
67,
-78,
117,
-49,
-30,
125,
-57,
115,
-109,
94,
-34
] |
William Enfield, Special Judge.
Appellant was charged with aggravated robbery and theft of property. The charges arose from a convenience store robbery by two black males, one carrying a gun, on the evening of June 25, 1989. Appellant’s defense was alibi. The clerk at the convenience store was unable to identify appellant as one of the robbers during a photographic line-up.
A police officer testified on direct examination that she had contacted Beverly Boone, a girlfriend of the admitted robber, Thomas Wayne Cobb, pursuant to an anonymous telephone tip and Ms. Boone told the officer that appellant and Cobb were together on the night of the robbery. This testimony was objected to on the grounds of hearsay and the objection was sustained by the court.
In spite of the court’s ruling the prosecutor returned to the subject on redirect examination. Over appellant’s hearsay objection, the court permitted the officer to testify that she had learned from Ms. Boone that the appellant was present when Cobb had given her money of significant amounts and denominations about two hours after the robbery.
Rule 801(c) of Arkansas Rules of Evidence defines hearsay as:
a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Certainly, the testimony admitted here was hearsay. Rule 802 of the Arkansas Rules of Evidence makes hearsay inadmissible, except as provided by law or the rules of evidence. None of the exceptions applied to the facts here.
The lower court based its ruling on a view that appellant had “opened the door.” In other words, he waived his right to object to the hearsay by initiating the inquiry. But the record shows that the prosecutor, not appellant, brought up the subject of appellant’s presence by opening the line of questions to the police officer, both on direct examination and redirect examination. Appellant objected both times. The judge correctly sustained the first objection but erred when he overruled the second objection.
The question remains whether the court’s error was harmless. Although Cobb testified that the appellant was with him and participated in the robbery, it was shown that Cobb had a previous felony conviction, and the clerk at the store could not identify appellant. We cannot be certain how much weight the jury gave to the hearsay evidence, but it was certainly intended to counteract appellant’s only defense, that of alibi. This placed the jury in the position of deciding whether to believe appellant and his witnesses, or the testimony of Cobb bolstered by the secondhand testimony of an absent witness whose credibility and accuracy were impliedly supported by a police officer. This is exactly the type of thing the hearsay rule is intended to prevent. The error was not harmless. See Harris v. State, 36 Ark. App. 120, 819 S.W.2d 30 (1991); Pennington v. State, 24 Ark. App. 70, 749 S.W.2d 680 (1988).
Reversed and remanded.
Cracraft, C.J., and Mayfield, J., agree. | [
48,
-19,
-19,
61,
40,
96,
58,
-72,
82,
-125,
36,
83,
101,
64,
20,
121,
126,
123,
84,
97,
-44,
-73,
45,
99,
-14,
-73,
90,
-41,
-79,
-53,
-92,
-44,
76,
112,
-54,
-39,
98,
72,
-91,
88,
-114,
9,
-117,
98,
123,
80,
32,
55,
44,
11,
49,
-98,
-29,
42,
20,
-50,
105,
57,
75,
-66,
112,
112,
-118,
-113,
-17,
4,
-77,
55,
-65,
37,
-8,
12,
-100,
49,
0,
56,
115,
-76,
-126,
116,
109,
-101,
12,
98,
98,
17,
13,
-21,
60,
-119,
54,
127,
-99,
-89,
-108,
64,
73,
13,
-105,
-99,
121,
32,
-122,
-18,
121,
92,
93,
100,
13,
-34,
-106,
-109,
-115,
52,
22,
59,
-21,
-89,
16,
117,
-49,
-22,
93,
85,
83,
-37,
-114,
-44
] |
James R. Cooper, Judge.
The appellant in this chancery case sought a declaratory judgment to determine whether a contract it proposed constituted “insurance” within the meaning of Ark. Code Ann. § 23-60-102 (1987). The appellee moved for dismissal, alleging that the appellant had failed to exhaust its administrative remedies and the chancellor granted the appel-lee’s motion. From that decision, comes this appeal.
For reversal, the appellant contends that the chancellor erred in dismissing its complaint, asserting that the pursuit of administrative remedies would be futile, inefficient, and result in unnecessary delay. We affirm.
The record shows that the appellant proposed to sell a contract referred to as a “Total Loss — Vehicle Purchase Contract Waiver”. This contract was to be offered to buyers of used vehicles which are sold and financed by the appellant’s dealerships. The contract calls for the financing dealership to waive any balance due on the purchase price of the vehicle involved if the buyer suffers a.total loss of that vehicle by theft or accident prior to full payment of the purchase price. In January 1990, the appellant corresponded with a representative for the appellee, requesting an opinion as to whether the proposed contract would be considered insurance as defined by Ark. Code Ann. § 23-60-102 (1987). On April 4, 1990, an attorney for the Arkansas Insurance Department wrote to the representative of the appellant and stated that the contract submitted to the insurance department for review was in fact considered an insurance product by the department and that any person or entity offering such a contract would first have to qualify as an insurance company and comply with the provisions of the Arkansas Insurance Code. The appellant then filed its declaratory judgment action which, as we have noted, was dismissed for failure to exhaust administrative remedies.
The parties are required to exhaust their administrative remedies prior to seeking a declaratory judgment because declaratory judgment actions are intended to supplement rather than replace ordinary causes of action. Rehab Hosp. Serv. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397, 399, 687 S.W.2d 840, 841 (1985). A basic rule of administrative procedure requires that the agency be given the opportunity to address a question before resorting to the courts. See Truck Transport, Inc. v. Miller Transporters, Inc., 285 Ark. 172, 173-74, 685 S.W.2d 798, 799 (1985).
The appellant asserts on appeal that it would have been futile to pursue an administrative hearing and that, therefore, it has met the requirements of one of the exceptions to the exhaustion of remedies doctrine which were set out in Barr v. Arkansas Blue Cross and Blue Shield, Inc., 297 Ark. 262, 267, 761 S.W.2d 174, 177 (1988). In Barr, the Supreme Court held that exhaustion of administrative remedies is not required where an administrative appeal would be futile. Id. In this regard, the appellant asserts that the insurance commissioner had already made up his mind on this particular issué and that an administrative appeal would be futile, inefficient, and result in an unnecessary delay.
The record discloses, however, that Arkansas Insurance Commissioner Lee Douglass (who had succeeded Ron Taylor as Commissioner by the time of trial) testified at the hearing that he had not made up his mind as to the merits of the appellant’s proposed contract and that he had not reviewed any of the documentation which may have been submitted to the department, including the proposed contract itself. Commissioner Douglass also stated that he had not reviewed applicable Arkansas case law or law from other jurisdictions which might apply to the appellant’s proposed contract. Further, the record does not reveal that the appellant presented any evidence that there would be an undue delay if the appellant were to proceed with the administrative remedies available. The chancellor found that the appellant failed to show that it fell within any exceptions to the doctrine. We cannot say that such a finding is against the preponderance of the evidence. Ark. R. Civ. P. 52(a). The appellant also argues that, because the provision for an administrative hearing set out in Ark. Code Ann. § 23-61-303 (1987) is not mandatory, the exhaustion of administrative remedies doctrine does not apply. We cannot accept the appellant’s argument in this regard. Section 23-61-303 provides in part as follows:
(a) The commissioner may hold hearings for any purpose within the scope of this code deemed by him to be necessary.
(b)(1) The commissioner shall hold a hearing if required by any provision or upon written demand for a hearing by a person aggrieved by any act, threatened act, or failure of the commissioner to act, or by any report, rule, regulation, or order of the commissioner, other than an order for the holding of a hearing, or an order on hearing or pursuant thereto.
It is true that the statute itself does not require the appellant to seek a hearing before the Insurance Department. However, if the appellant wishes to seek a declaratory judgment, it must first give the agency the opportunity to address the issue involved. Rehab Hosp. Serv. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. at 399, 687 S.W.2d at 842. The appellant’s failure to seek a hearing before the Department was clearly a failure to exhaust its administrative remedies. See Arkansas Motor Vehicle Comm’n v. Cantrell Marine, Inc., 305 Ark. 449, 450, 808 S.W.2d 765, 766 (1991). We find no error in the chancellor’s action dismissing the appellant’s complaint for declaratory judgement.
Affirmed.
Jennings and Mayfield, JJ., agree. | [
-112,
-20,
-36,
-84,
8,
96,
48,
42,
87,
-87,
101,
-45,
-81,
-50,
-107,
63,
-25,
123,
100,
120,
-43,
-93,
86,
98,
-42,
-110,
115,
-59,
51,
79,
-28,
30,
92,
104,
-54,
-59,
-26,
72,
-63,
-40,
74,
-126,
-101,
108,
-7,
73,
48,
98,
80,
3,
96,
-115,
-29,
46,
25,
-54,
109,
44,
-55,
-71,
-15,
48,
-50,
-123,
127,
5,
33,
100,
-104,
35,
-40,
26,
-108,
56,
17,
-8,
114,
-90,
-106,
4,
107,
27,
8,
98,
99,
0,
16,
-19,
-104,
-120,
38,
-102,
15,
-122,
-46,
24,
98,
9,
-73,
-99,
127,
23,
4,
-4,
-2,
-35,
95,
44,
7,
-117,
-108,
-77,
-17,
65,
-100,
11,
-2,
-57,
50,
116,
-115,
-14,
93,
87,
55,
-109,
22,
-64
] |
Per Curiam.
Appellant Jay Samples filed a motor vehicle accident case in the Circuit Court of Conway County against appellees Genell Samples, D.L. Sitton Motor Lines, Inc., and Mark A. Summers. A jury trial resulted in a verdict for the appellees. Appellant appealed to the Court of Appeals and filed his brief on January 21, 1991. Appellees filed their briefs on February 20 and February 27,1991. In their briefs, the appellees argue that the appellant’s brief is deficient. See Rule 9(d) of the Rules of the Supreme Court and Court of Appeals. Appellant filed a motion to stay the time for filing his reply brief and asked leave to supplement his original brief. The Court of Appeals certified the case to this Court.
Appellant is granted leave to revise or supplement his brief. Upon the filing of a substituted abstract and brief by the appellant, the appellees will be given time to revise or supplement and reprint their briefs at the expense of the appellant. See Rule 9(e)(2) of the Rules of the Supreme Court and Court of Appeals.
The appellant’s motion to file a substitution abstract and brief is granted. | [
112,
108,
-12,
-100,
41,
33,
48,
38,
88,
-29,
102,
83,
-81,
-58,
12,
97,
-17,
45,
117,
-5,
-43,
-77,
86,
67,
-101,
-77,
-13,
86,
-16,
95,
-9,
-42,
76,
116,
-54,
69,
70,
72,
-63,
94,
-50,
11,
-71,
105,
89,
74,
32,
34,
112,
15,
49,
-34,
-29,
44,
24,
75,
104,
44,
-55,
21,
-64,
-72,
-102,
13,
-3,
7,
-79,
-108,
-97,
-122,
88,
11,
-100,
49,
16,
-3,
48,
-90,
-110,
-12,
43,
-69,
9,
98,
99,
0,
17,
-51,
28,
-100,
22,
90,
29,
-92,
-14,
49,
75,
5,
-65,
29,
122,
20,
-113,
126,
110,
77,
29,
108,
15,
-50,
-108,
-93,
7,
32,
4,
10,
-29,
-109,
16,
117,
-44,
-5,
88,
-61,
19,
-101,
-62,
-126
] |
Tom Glaze, Justice.
These five driving while intoxicated cases have been consolidated for appeal. Either Trooper Mark Blankenship or Trooper Mark Hollingsworth was the arresting officer in these cases. The appellants made a motion to suppress evidence and for dismissal on the basis that the two arresting officers failed to comply with the Law Enforcement Standards Act, Ark. Code Ann. §§ 12-9-101 to -404 (1987), because their files did not contain medical forms F-2 and F-2a. The Arkansas Commission on Law Enforcement Standards (Commission) required these forms by regulation under the authority of Ark. Code Ann. § 12-9-108(a) (1987). The officers’files did, however, contain medical history questionnaire forms and medical examination report forms, and in referring to this information, the trial court held the officers had substantially complied with the requirements of the law and denied the appellants’ motion. Appellants appeal that ruling.
This court has held that strict compliance with the standards and qualifications of police officers is required by the language of § 12-9-108(a), and that substantial compliance is not sufficient. Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989), and Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989). In Mitchell and Grable, we reversed where the defendants’ convictions were based solely on citations issued by officers who failed to meet the requirements established by the Commission under § 12-9-108(a). Thus, if these two decisions controlled the situations now before us as appellants suggest, we would be obliged to reverse their cases. Matters, however, have changed since these decisions were rendered and those changes compel our affirmance of the trial court’s convictions.
Since the Grable and Mitchell cases, the General Assembly has passed Act 44 of 1989, which amended § 12-9-108(a) to provide that the mere failure to meet law enforcement standards shall not invalidate actions taken by law enforcement officers. Act 44 went into effect on November 8,1989, which was after the appellants’ arrests in the instant case but prior to the trial court’s denial of their motion to suppress from which they bring this appeal. The Act further expressed the General Assembly’s intent that it should apply to any pending cases. Furthermore, our court has recently upheld the constitutionality of Act 44, stating the Act’s retroactive applicability to pending cases did not violate the ex post facto doctrine of either the state or federal constitution. Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991); Ridenhour v. State, 305 Ark. 90, 805 S.W.2d 639 (1991). Therefore, the Act — its retroactive effect having been ruled constitutional — eliminated or removed the earlier language contained in § 12-9-108(a) (1987), that invalidated official actions taken by police officers who had failed in some aspect to meet the standards and qualifications of the Law Enforcement Standards Act.
As pointed out, the appellants’ cases here were pending when Act 44 was enacted. Thus, applying Act 44 to the present situations, officers Blankenship’s and Hollingsworth’s arrests of the appellants were not invalidated merely because their files failed to contain the specified medical forms required by the Commission.
In reaching our holding, we note that Act 44 was not argued below, and that, in two earlier cases, we declined to address for the first time on appeal that the (1) state’s argument that Act 44 should be interpreted and applied so as to validate actions of officers who had failed to meet Commission standards or qualifications and (2) defendants’ counter arguments that the Act’s retroactive application violated the ex post facto clause. See Johnson v. City of Kensett, 301 Ark. 592, 787 S.W.2d 651 (1990), and Freeman v. City of DeWitt, 301 Ark. 581, 787S.W.2d 658 (1990). However, since our decisions in Johnson and Freeman, we have laid to rest the issues bearing on Act 44’s interpretation and the constitutionality of its retroactive application to pending cases. Ridenhour, 305 Ark. 90, 805 S.W.2d 639. Thus, while we refused in Johnson and Freeman to reach or rule on these issues surrounding Act 44, those issues have now been fully developed and decided. As decided in Ridenhour, Act 44 applies to cases which were pending at the time of its enactment and its retroactive application is constitutional.
Undisputably, the appellants’ cases before us now were pending when Act 44 was enacted. Thus, although the trial court was wrong in stating officers Blankenship and Hollingsworth had substantially complied with the requirements of § 12-9-108(a), its decision upholding the officers’ arrests of appellants was correct under Act 44 — the amendment removing the strictures of § 12-9-108 (a) that previously invalidated any actions taken by officers who did not meet Commission standards or qualifications. In sum, while the trial judge was in error in his reasoning when rendering the appellants’ convictions, the result reached by him was correct. See Marchant v. State, 286 Ark. 24, 688 S.W.2d 744 (1985). Therefore, we affirm. | [
112,
-21,
-28,
-68,
46,
-63,
51,
-110,
-45,
-109,
-3,
81,
-83,
-64,
13,
51,
-23,
53,
117,
89,
-41,
-74,
101,
104,
102,
-9,
73,
-61,
55,
75,
-20,
-68,
95,
48,
-30,
-43,
38,
-56,
-115,
88,
-86,
3,
25,
-32,
80,
-48,
52,
43,
38,
15,
113,
-97,
-31,
41,
18,
-61,
-83,
108,
-53,
-68,
96,
112,
-103,
-99,
-53,
20,
-95,
4,
-103,
13,
-48,
54,
-100,
49,
17,
-8,
51,
-90,
-122,
-44,
111,
25,
-115,
102,
96,
49,
17,
-81,
-72,
-84,
-68,
-70,
-99,
-90,
-104,
105,
75,
9,
-106,
-75,
108,
18,
14,
-6,
99,
-59,
93,
104,
-122,
-49,
52,
-111,
13,
116,
20,
51,
-53,
99,
52,
117,
-123,
-9,
86,
85,
83,
-97,
-58,
-44
] |
David Newbern, Justice.
The appellant, Kenneth Scott Andrews, appeals from his conviction of first degree murder for which he received a sentence of 40 years imprisonment. His sole point of appeal is that there was insufficient evidence to convict him. More specifically, he contended in a motion for directed verdict at the conclusion of the State’s evidence that the testimony of an alleged accomplice was not corroborated by independent evidence showing that he was connected with the crime. We affirm the conviction because of Andrews’s failure to renew his directed verdict motion at the conclusion of all of the evidence in the case.
Danny Jordan testified in great detail about the crime and the participation of Kenneth Scott Andrews (Scott) and Scott’s father, Joe Kenneth Andrews (Joe). Jordan told of helping move a safe from a jewelry store to the home of the victim James Robinson. He told Joe about the safe, and Joe expressed interest in stealing it. At one meeting where Joe, Scott, and Jordan were present, Scott announced that he would get the safe even if the others would not do it. On February 19, 1990, the three went to Dardanelle State Park in Joe’s father’s green and white pickup truck to observe Robinson’s house. Jordan said they stayed there a whole afternoon and planned to steal the safe which they would then bury in the Andrews’ yard.
Jordan testified further that on the afternoon of February 20 he .was at home visiting with his mother when Joe and Scott arrived in the green and white truck. When Jordan’s mother left, at about 4:00 p.m., the three men drove to the park in the truck and watched Robinson’s home until a hired person working around the house left at about 5:30 p.m. Joe gave Jordan and Scott each a pair of white gloves to wear while taking the safe. They then drove to Robinson’s home. Jordan stayed in the driveway with the truck while Joe and Scott went into a carport. Jordan then heard choking sounds and Scott waved to him to come to the carport where Jordan saw Robinson lying atop an air conditioner.
Jordan said that when he and Scott attempted to enter a shop area to get the safe, they tripped a burglar alarm. As Jordan and Scott were running back to the truck, Jordan looked back and saw Joe with his hand on Robinson’s chest, but he did not see a knife. Joe, who had blood on his hands, got in the truck and told Jordan and Scott that he had choked Robinson with a rope and stabbed him two or three times. They then drove to Delaware'Park. Joe had Robinson’s wallet from which he gave Jordan $100 and Scott $95, keeping $95 for himself.
Danny Jordan’s mother, Wilma Jordan, testified that Danny Jordan and Joe Andrews were good friends. She was at Danny Jordan’s home on the afternoon of February 20 when Joe and Scott Andrews pulled up in a green pickup truck. She left them there together at around 3:45 or 4:00 that afternoon.
James Warren testified that, on February 20 at 5:30 p.m., he saw three men in the park where he was jogging. The three were looking south toward Robinson’s home. He also saw a green pickup truck near the men.
Sandra Rackley testified she saw her brother, Danny Jordan, and Joe Andrews together at 8:00 p.m. on February 20.
Carrie Payton testified that Scott Andrews came to the Gum Log area, on February 20 between 5:30 and 6:00 p.m., where her mother’s and her grandmother’s homes were. On cross-examination she stated it could have been 6:30 or 7:00 p.m. as she had said in an earlier statement to the police. She testified Scott told her he had almost $100. He offered to give her $5.00, and the following day he brought her a bottle of champagne, a dozen roses in separate vases, and a stuffed animal.
Carrie Payton’s mother testified that, in addition to the items Carrie mentioned, Scott brought her a small “promise ring” with a diamond in it.
Jean Andrews, wife of Joe, testified that Scott was unemployed and had been since November. Another witness testified that Scott had done odd jobs for her but that she had paid him no more than $50 the week prior to February 20.
Police officers testified they arrested Scott on suspicion of having killed Robinson. When arrested, Scott was at an outdoor “beer party” where people under age were drinking. When the officers began looking through the crowd for Scott, he attempted to move toward the edge of the group, and when they approached him, he began to run but was tackled after taking about six strides. He was given a rights warning and placed in the officers’ car. One officer asked the other if Carrie was at the party, and Scott volunteered a statement that she was not involved in “this mess” and there was no reason for her to be.
A felony conviction may not be based on the testimony of an accomplice unless it is “corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.” Ark. Code Ann. § 16-89-111(e)(1) (1987). “The test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission.” Foster v. State, 290 Ark. 495 at 498, 720 S.W.2d 712 at 713-14 (1986).
The question presented to the trial court at the close of the State’s case by motion for directed verdict was whether the corroborating evidence met the statutory requirement, that is, whether it was sufficient to establish the commission of the offense and connect Scott Andrews with it. The trial court denied the motion.
No motion for a directed verdict was made by the defendant at the close of the case. Arkansas R. Crim. P. 36.21 (b) provides:
Failure to Question the Sufficiency of the Evidence. When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.
The sufficiency of the evidence issue was thus waived by failure to move for a directed verdict at the close of the case, and we decline to consider the issue on appeal. Thomas v. State, 303 Ark. 210, 795 S.W.2d 917 (1990); Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1981).
The State has not argued that Scott Andrews failed to make the motion. Counsel for Andrews quite properly called the problem to our attention in oral argument but contended that the rule should not apply in this case because none of the evidence presented by Andrews could have influenced the court’s decision to deny the motion for directed verdict for lack of corroboration which was made at the close of the State’s evidence. No authority was cited for this argument, and we are not convinced by it.
The Reporter’s Note to Rule 36.21(b) states that the Rule was amended in 198 8 to include the requirement that the directed verdict motion be made at the close of all the evidence to bring the practice in line with that in civil cases. The civil Rule is found at Ark. R. Civ. P. 50(e). In civil cases we hold that a defendant’s presentation of evidence after denial of his or her directed verdict motion constitutes a waiver of the question whether the evidence is sufficient to go to the jury. Higgins v. Hines, 289 Ark. 281, 711 S.W.2d 783 (1986); Granite Mountain Rest Home v. Schwartz, 236 Ark. 46, 364 S.W.2d 306 (1963).
In Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981), we referred to the requirement of renewal of the motion as a “settled rule,” and we explained that:
If a defendant could introduce evidence without waiving his first motion for a directed verdict, he could supply the very defect complained of and still obtain a new trial after having speculated upon the possibility of a favorable verdict upon all the proof.
Rule 36.21 could not be clearer, and we are not inclined to make an exception to it which would require us to evaluate whether a defendant’s evidence, or perhaps evidence brought out by the State on cross-examination of the defendant’s witnesses, makes a difference in whether a verdict should be directed, especially when the trial court has been given no opportunity to make such a decision.
Affirmed.
Brown, J., concurs. | [
-80,
-24,
-52,
-97,
59,
-32,
-86,
-8,
104,
-13,
-29,
-45,
-87,
-53,
5,
106,
-12,
95,
-44,
97,
-10,
-121,
63,
-61,
-14,
51,
123,
-45,
-78,
99,
-76,
-11,
76,
96,
-50,
85,
6,
8,
-25,
80,
-114,
1,
-88,
-32,
-87,
2,
36,
47,
52,
15,
-11,
-98,
-77,
43,
30,
-58,
73,
40,
75,
61,
-48,
121,
-83,
7,
-49,
16,
-73,
-89,
-69,
-122,
-8,
46,
-100,
-79,
0,
-24,
113,
-122,
18,
116,
77,
-119,
12,
98,
99,
4,
88,
108,
-24,
-111,
46,
111,
-114,
-94,
-103,
33,
69,
45,
-99,
-67,
107,
52,
46,
-14,
-29,
77,
57,
100,
-126,
-121,
-78,
-109,
-51,
108,
-64,
90,
-37,
5,
0,
97,
-52,
-30,
76,
101,
113,
-1,
-113,
-15
] |
Morton Gitelman, Special Justice.
This is an appeal from the Greene County Chancery Court which entered a summary judgment dismissing the complaint of appellant, Paragould Cablevision, Inc. (Cablevision). Cablevision is the holder of a non-exclusive franchise to operate a cable television system in the appellee City of Paragould, Arkansas (City). The company has operated its system since 1963 and it has approximately 6,000 subscribers. The current franchise .expires December 9, 1993.
Sometime after the 1983 renewal of Cablevision’s franchise, citizens in Paragould expressed dissatisfaction with its services and rates. The City employed consultants to study the feasibility of initiating a city-owned cable television system, and in June 1986, the voters authorized the City to acquire and operate a system. Subsequently, the City enacted a resolution whereby the appellee Paragould Light and Water Commission (Commission) was charged with the duty of acquiring and operating a cable television system and, after a municipal election on October 31, 1989, the City undertook to issue Capital Improvement Bonds under Act 871 of 1985 in the amount of $3.22 million to finance the cost of the system.
On January 18, 1990, Cablevision filed a complaint in this case seeking an injunction against the issuance of the bonds and a declaration that the Commission had no power to acquire and operate a cable television system. Cablevision’s complaint is based upon the claims that the Commission has no power to operate a cable television system under the state legislation authorizing its existence and that a delegation of such power to the Commission by the City is ultra vires; also, the arrangement contemplated by the City and the Commission constitutes an illegal exaction under Ark. Const. art. 16, § 13.
After a hearing, the chancellor found that the City has authority under Act 328 of 1987 to construct and operate a cable television system and, under Acts 871 of 1985 and 26 of 1988, it has the authority to issue bonds to finance construction of the system; the chancellor also found that the City can legally and properly delegate authority to the Commission to construct and operate the system and that such delegation is not a prohibited delegation of legislative authority but, rather, is a delegation of administrative and ministerial functions. Thus, as the chancellor further found, there is no illegal exaction prohibited by the Arkansas Constitution. We affirm.
I. Issues on Appeal
Cablevision concedes, as it must, that Arkansas cities have the authority to own and operate cable television systems. Act 328 of 1987; Ark. Code Ann. § 14-199-601 (a) (Supp. 1989) provides:
Any first-class city, second-class city, and incorporated town may own, construct, acquire, purchase, maintain, and operate a television signal distribution system for the purpose of receiving, transmitting, and distributing television impulses and television energy, including audio signals and transient visual images, to the inhabitants of the city or town and to the inhabitants of an area not to exceed two (2) miles outside the boundaries of the city or town.
Cablevision also does not contest the authority of cities to issue bonds for the purpose of financing a cable television system.
Although at one time the power of municipal corporations to engage in entrepreneurial activities was subject to serious question, see 12 E. McQuillin, Municipal Corporations § 36.02 (3d rev. ed. 1986), the peculiar nature of cable television renders it distinct from municipal hotels, brickyards, tanneries, taxi companies, and the like. The furnishing of news, information, and entertainment to the public is an activity that is clearly tinged with a public interest, and cable television systems are clearly subject to governmental regulation.
Prior to federal regulation of cable communications, courts were sometimes called upon to sort out the legal issues involved in what were called “Community Antenna Television” (CATV) enterprises. In the absence of statutory guidance, courts resorted to basic principles of property law and the law of unfair competition. See, e.g., Intermountain Electronics, Inc. v. Tintic School Dist., 377 P.2d 783 (Utah 1963); Cable Vision, Inc. v. KUTV, Inc., 211 F.Supp. 47 (D.Idaho 1962), vacated, 335 F.2d 348 (9th Cir. 1964); Dispatch, Inc. v. City of Erie, 249 F.Supp. 267 (W.D. Penn. 1965); Lamb Enterprises, Inc. v. City of Erie, 286 F.Supp. 865 (W.D. Penn. 1967), aff'd, 396 F.2d 752 (3d Cir. 1967); United Artists Television, Inc. v. Fortnightly Corp., 377 F.2d 872 (2d Cir. 1967); Buckeye Cablevision, Inc. v. F.C.C., 387 F.2d 220 (D.C. Cir. 1967); Black Hills Video Corp. v. F.C.C., 399 F.2d 65 (8th Cir. 1968).
In more recent times, federal regulation has been the prominent focus in analyzing the legal framework of the cable television industry. The Cable Act of 1984, 47 U.S.C. § 521 to 559 establishes national policy in this area. See Reyerson & Sinel, Regulating Cable Television in the 1990’s, 17 Stetson L. Rev. 607 (1988). The Cable Act specifically provides that cable systems are not common carriers or public utilities, section 541(c). Furthermore, the act does not prohibit municipal ownership of cable systems or franchises, section 522(4), nor does it require that franchises be exclusive, section 541(a)(1). Thus, the federal legislation has no preemptive effect in the case before us.
II. Status of the Commission
Cablevision’s key argument is that, although the City is authorized to acquire and operate a cable television system in competition with the existing private system, the City has no power to delegate such authority to the Commission, and the Commission has no authority to accept such delegation. Cablevision argues that the Commission is a creature of statute and has only those powers expressly granted by the enabling act. This argument requires us to consider the status of the Commission.
In 1933, the City issued bonds and constructed a municipal electric light plant which was completed in 1939. In 1941, the City, by ordinance, created a commission to control and operate the municipal plant. This ordinance refers to, and is based upon, Act 70 of 1941. Act 70 authorized municipal corporations “owning, operating and controlling municipally-owned light and power plants” to create a five-member board for “the purpose of directing, controlling and operating such municipal light and power plants within such city. . . .” The act goes on to prescribe the method of selection of such board members and the power of the board to control and operate the plant and dispose of surplus property, but states that the board “shall not sell or rent the right to own, use and operate the equipment of such light and power plant.” Section 1 of Act 70 states that it applies to cities having a population (under the 1940 census) of not less than 7,070 or more than 7,085. Act 70 was never judicially challenged, but it could be viewed as an example of the type of local or special legislation prohibited by Amendment 14 to the Arkansas Constitution. See Anderson, Special and Local Acts in Arkansas, 3 Ark. L. Rev. 113 (1948).
In 1953, the General Assembly passed Act 562, which rectified the questionable validity of Act 70. Act 562 permits cities of the first class “whose municipally owned water, sewer and/or light plants are not now being operated by a commission or commissions created by or pursuant to valid special or local acts of the Arkansas Legislature,” to create such commissions. In all material respects, the powers of such commissions are the same as the powers of the board created under the authority of Act 70. The City promptly passed an ordinance re-establishing its power commission under Act 562, designating it as the Light Plant Commission of the City of Paragould. In 1984, by ordinances, the City vested control of the water and sewer system in the Commission and changed its name to Paragould Light and Water Commission.
Cablevision claims that the Commission is a separate and distinct entity from the City, having its origin in Act 562 of 1953, and is in no way an arm of the City or its alter ego. Because Act 562 does not grant power to such commissions to operate anything but electric plants, waterworks, and sewer plants, Cablevision argues that operation of a cable television system by the Commission would be ultra vires.
The City contends that the Commission is an agency of the City and is the most efficient department of city government to operate a cable system. The Commission owns vehicles and, more importantly, light poles, which are the means of conveying television signals from the central receiving equipment to the homes of subscribers. Also, the Commission has personnel, equipment, and expertise for the billing of consumers and collection of accounts.
At trial, Cablevision introduced no independent evidence to prove that the Commission is a distinct entity from the City. Instead, Cablevision relied on the four corners of Act 562 to prove that the only powers of a commission created under that act exclude operation of a cable system. In the absence of a record demonstrating that the actual authority and operation of the Commission is independent of the City, we are left with the task of interpreting the legislative intent underlying Act 562. In doing so, we are struck with the many indications within the act itself that the legislature did not intend to create entities separate and apart from the cities with municipally owned light, water and sewer plants. Section 1 of Act 562 provides: “Hereafter a city of the first class may, by the enactment of an ordinance or ordinances, create a commission or commissions to operate, control and supervise such of its municipally owned water, sewer and/or light plants as may be prescribed by an ordinance or ordinances. . . .” (Emphasis added). Such language hardly supports the argument that the Commission is unable to accept any additional duties prescribed by the city council, such as operation of a city-owned cable system. Further, Section 6 of Act 562 provides:
Said board or boards created pursuant to the provisions of this act shall have full power to operate and control the plant or plants entrusted to its direction. . .and, subject to such restrictions as may be prescribed in the ordinance creating said board or boards shall have full power to buy and pay for out of the earnings or revenue of said plants for the welfare and benefit of the citizens and inhabitants of the Municipal Corporation. . . (emphasis added).
Section 9 of Act 562 states that the “board shall make due report to the City Council with reference to the conditions and affairs of the Municipal Plants under its control at such time and in such manner as the City Council may designate.” Finally, Section 12 of Act 562 states: “Nothing contained in this act shall be construed to prohibit the City Council of any city subject to the terms of this act from repealing or amending any act which it may have passed pursuant to the authority hereby conferred.” All of the terms of Act 562 cited, when considered with the history of legislative regulation of municipally owned utilities, inescapably point to the conclusion that the powers and limitations of Act 562 are directed to cities and not to the entities allegedly created by the act.
Crucial to Cablevision’s argument is the characterization of the Commission as a distinct entity, a “utility commission” with limited powers. Cablevision relies on Portis v. Board of Public Utilities, Lepanto, 213 Ark. 201, 209 S.W.2d 864 (1948). The issue in that case was whether the Town of Lepanto, which owned its waterworks and sewer plant, had the power to issue revenue bonds to expand the plant or whether the Board of Public Utilities, created under Act 95 of 1939, had the power to issue such bonds. We held that the power to issue the bonds was in the town and that Act 95 did not expressly grant such power to the board. This case does not support Cablevision’s theory.
First, the exact holding of Portis is that the legislature did not take away, in Act 95, the power of the town to issue revenue bonds; we said:
Clearly we think it was the intention of the Legislature under Act 95 that Cities or Towns should still have the sole right to issue bonds. . .and realizing that municipalities would need the revenues from these plants to secure any bonds that might be issued by the municipalities, themselves, and for other purposes, the Legislature intended that the sole power to issue such revenue bonds should rest with the municipality.
213 Ark. at 207, 209 S.W.2d at 867.
Second, although we cited and discussed the famous “Dillon Rule” in the Portis case—that municipal corporations have only those powers expressly granted by statute, or those necessarily implied, or essential — we do not find that the Public Utilities Board of Lepanto was a comparable entity to the Paragould Light and Water Commission. Cablevision relies on language in Portis where we stated:
In short, we hold that Act 95, supra, did not confer upon the Board of Utilities here the power to issue revenue bonds; that, being a creature of the statute, the Board had only such powers as were expressly, or impliedly given to it by the Legislature, and that it was the clear intent of the lawmakers that only one municipal authority, the municipality itself, should have the power to issue these revenue bonds.
213 Ark. at 208, 209 S.W.2d at 868. This language does not aid Cablevision’s case. In Portis, we were dealing with Act 95 of 1939. That legislation was clearly designed to allow transfer to a new entity the operation and management of utility plants which had been constructed by improvement districts and which had paid up the bond issues used to construct the plants.
In the 1930’s, many smaller communities in Arkansas undertook construction of electric light plants. In the absence of private utility companies ready and willing to undertake such construction, many of the communities utilized the statutory authority to create improvement districts for the purpose of issuing bonds and constructing the system. The improvement district, once created, would issue bonds, to be retired either by revenues generated by the system or by tax assessments on real property within the district. Improvement districts have always been considered distinct municipal corporations which are creatures of the state. 1 E. McQuillin, Municipal Corporations § 2.03(a) (3d rev. ed. 1986); Fitzgerald v. Walker, 55 Ark. 148 (1891); Gladson v. Wilson, 196 Ark. 996, 120 S.W.2d 732 (1938).
The Portis case is bottomed on the fact that the Board of Utilities was a successor to the improvement district which had built the Lepanto plant. The Commission in this case, on the other hand, was created by the act of the City under permissive legislation, Act 562 of 1953, which states: “Hereafter a city of the first class may, by the enactment of an ordinance or ordinances, create a commission or commissions to operate, control and supervise. . .municipally owned water, sewer and/or light plants. . .” Unlike the Board of Utilities in the Portis case, the Commission here is not a successor to a municipal corporation and owes its existence to an ordinance enacted by the City.
Appellees argue that the “Dillon Rule” was “repealed” in Arkansas by Act 266 of 1971, codified at Ark. Code Ann. § 14-43-602 (1987), and popularly known as the “Home Rule Act.” That statute can best be characterized as a limited home rule statute. True home rule for municipal corporations is found in state constitutions, because home rule for cities is simultaneously a grant of legislative power to home rule cities and a limitation of state legislative power. The limited home rule expressed in Act 266 does not settle issues relating to ultra vires actions by municipal corporations. However, we need not decide the current status of the “Dillon Rule” in Arkansas in this case because we find that the Commission is not a distinct legal entity apart from the City for the purpose of operating a cable television system.
Consistent with this conclusion, in Adams v. Bryant, 236 Ark. 859, 370 S.W.2d 432 (1963) we held that a commission created by ordinance of the City of Clarksville to operate the municipal power, water, and sewer plant was an agent of the city and not a distinct municipal corporation. Although the Clarksville plant was originally built by an improvement district, we held that the city was not bound to follow Act 95 of 1939 to create a Public Utilities Board and could delegate the operation of the utilities to its own agency, consisting of three appointed commissioners (as opposed to five elected commissioners as specified in Act 95). Furthermore, the plaintiffs in Adams, were seeking an injunction to prevent the utility commissioners from engaging in activities far removed from operating the utilities, viz., purchasing stock in a proposed industrial park and contributing to a fund to promote the dairy industry. The injunctive relief was denied, suggesting that a city can delegate to its “utility commission” duties in addition to those associated with the operation of the utility plants. In the case before us, it would make little sense to say that the City has the express legislative power to own and operate a cable television system, but cannot delegate operation of the system to a commission created by a city ordinance under the permissive authority of a state statute.
III. Delegation of Powers
The Adams case also answers Cablevision’s argument that the Paragould ordinances and franchise agreement with the Commission constitute an improper delegation of legislative power. We recognize the general rule that the legislative powers of a municipal corporation cannot be delegated. 2 E. McQuillin, Municipal Corporations § 10.40 (3d rev. ed. 1986); City of Harrison v. Snyder, 217 Ark. 528, 231 S.W.2d 95 (1950); Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984). The questions here, however, are whether the Commission is a part of the City or a separate entity and whether the powers allegedly delegated are legislative or ministerial or administrative. The first question has been discussed in the previous part of this opinion, where we concluded that the Commission was created under permissive legislation and is not a separate municipal corporation.
In answering the second question, we find several indications that the powers to be exercised by the Commission are not legislative powers, but rather administrative or ministerial powers. Immediately after the initial filing of this lawsuit, the Paragould City Council adopted Resolution 89-1, declaring:
Whereas, in order to make more clear the intentions of the parties that the franchise agreement dated January 15,1989, grant to the Commission only administrative or ministerial duties but reserve to the city council all legislative powers; now therefore, the City and the Commission do hereby amend the cable franchise agreement. . .as follows. . . .
The resolution then amends the franchise agreement in several respects and adds a new section:
Nothing in this agreement shall be construed to grant to the Grantee any legislative authority, it being the intention of Grantor to grant to the Grantee administrative and ministerial duties associated with the construction and operation of a cable television system by Grantee but reserving to the city council all legislative power.
Prior to the resolution, the franchise agreement entered into by the City and the Commission was almost exactly like the Cablevision franchise agreement. We do not understand Cablevision to be arguing that it, a private corporation, had been delegated legislative powers in its franchise. Thus, any powers the Commission has by virtue of the franchise agreement cannot be characterized as legislative.
Other indications that the relationship between the City and the Commission does not involve unlawful delegation of legislative powers are: (1) the bonds issued to finance the construction of the system are in the name of the city, (2) the city controls the rates charged to the subscribers, and (3) a citizen’s advisory committee selects the programming to be offered. The reasons for initially entrusting management of the municipally owned cable system to the Commission do not reflect even a hint of delegation of legislative powers. The Commission is the natural agency to administer the system as it has the personnel, vehicles, rights of way, and light poles that are necessary for operation of a cable television distribution system. Furthermore, under the federal Cable Act of 1984, a city must award a franchise to operate the cable system. Cablevision argues that the franchise method of regulation is proof that the Commission is a separate entity from the City. In actuality, the Commission is the best possible operator of the Paragould system because, even though Act 562 of 1953 is permissive, as we held above, the Commissioners are elected and thus, for First Amendment purposes, the City Council is not controlling access to cable channels or exercising editorial control. The Cable Act of 1984 simply requires that government not have editorial control over the cable channels. 47 U.S.C. § 533(e)(2) (Supp. 1990).
Because we find that the Commission is an agency of the City and because the City has clearly retained all legislative power in connection with operation of the city-owned cable system, Cablevision has not shown any constitutional or statutory violation, and the actions of the City do not constitute an illegal exaction.
Affirmed.
Holt, C.J., and Newbern, J., dissent.
Corbin, J., not participating. | [
16,
108,
-108,
110,
-120,
-30,
24,
-108,
123,
-77,
-26,
83,
-83,
100,
20,
105,
-117,
127,
116,
105,
-44,
-78,
69,
106,
-102,
-37,
-5,
-43,
-78,
-51,
-28,
-36,
76,
32,
-54,
-43,
70,
68,
-49,
94,
14,
3,
-117,
109,
-23,
-30,
49,
41,
18,
-121,
85,
13,
-5,
44,
56,
-29,
45,
62,
91,
-123,
66,
-104,
104,
-51,
-1,
22,
33,
4,
-104,
-127,
-40,
46,
-120,
49,
24,
-24,
115,
-90,
-122,
116,
13,
89,
12,
48,
102,
1,
-116,
-25,
-92,
-120,
38,
-33,
-99,
-122,
-106,
24,
75,
7,
-70,
-99,
98,
20,
7,
-2,
-25,
-107,
-33,
108,
-125,
-114,
-105,
-93,
68,
-23,
-100,
19,
-17,
102,
16,
116,
-49,
-42,
125,
87,
19,
-101,
-113,
-47
] |
Steele Hays, Justice.
The Arkansas Department of Human Services (DHS) appeals from an order, issued by the Pulaski County Court, Juvenile Division, holding DHS (Division of Children and Family Services) in willful contempt of an order filed May 1, 1990, in a dependency/neglect proceeding.
The order involved Ms. Deirdre Clark and her two sons. The boys had previously been placed in foster care, however, Ms. Clark was striving to regain custody. A hearing was conducted to determine what family services should be provided by DHS and the court ordered the children returned to their mother and that DHS provide certain services to the family. The court retained jurisdiction and scheduled a review hearing for April 5, 1990.
Following the review hearing, by order filed May 1,1990, the court directed DHS to: (1) pay $5.50 monthly for medication for Ms. Clark; (2) provide bus tokens or bus credit for each individual family member; and (3) provide the full entitlement of preventative funds to Ms. Clark. DHS filed an appeal and a motion for stay. The motion for stay was denied and the order was affirmed by this Court on January 28,1991. See Arkansas Department of Human Services v. Clark, 304 Ark. 403, 802 S.W.2d 461 (1991).
At a review hearing on July 5, 1990, the court found that DHS had not complied with the prior orders concerning medication, transportation and family financial concerns. A hearing was scheduled for August 2,1990, to show cause why DHS should not be held in contempt for violations of paragraphs 5,9, and 12 of the May 1, 1990 order. Following that hearing the court found that DHS was in contempt and imposed a fine of $250.00.
The trial court did not designate whether it was holding DHS in criminal or civil contempt, however, the record reveals that the $250.00 was not imposed to compel DHS to act, rather, it was punishment of the disobedience of an order previously made. Hence, this was a criminal contempt proceeding. See Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988).
In reviewing cases of criminal contempt, we consider the evidence in a light most favorable to the trial judge’s decision to determine whether there is substantial evidence to support his finding. Yarbrough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 123 (1988); Lilly v. Earl, 299 Ark. 103, 771 S.W.2d 277 (1989).
The Department of Human Services was found to be in contempt for violating paragraphs 9 and 12 of the May 1 order. DHS concedes noncompliance, but denies that it was willful.
Paragraph 9 of the order directed DHS to provide transportation in the form of bus tokens or credit each month for all the members of the Clark family. Ms. Nelda Barnard, services supervisor for DHS, testified concerning the failure to secure the bus tokens. She testified that DHS obtained the tokens July 20, 1990, a delay of over two months. Ms. Barnard offered no justification for the delay.
Paragraph 12 of the trial court’s order called upon DHS to provide the remainder of the full entitlement of preventative funds to Ms. Clark. Ms. Billye Burke, the in-home services coordinator of field operations support unit for the Division of Children and Family Services, administered the cash assistance program referred to in paragraph 12. Ms. Burke testified she was aware after the April 5 hearing that certain cash disbursements were ordered, but explained that payment of the money was not in compliance with agency policy and could result in an audit leading to a penalty of funds reduction. Ms. Burke testified that DHS did not comply with the court’s order because the DHS staff was under the impression that the case was on appeal and assumed a stay order had been obtained.
At the hearing on the contempt motion, counsel for DHS tendered $190.00 into the registry of the court to bring it into compliance with paragraph 12. Counsel took the position that DHS did not willfully disobey the court’s order because his advice subsequent to filing a Notice of Appeal led the DHS staff to assume it would not have to provide the payments while the appeal was pending.
Regarding paragraph 12, the trial court noted that the $190.00 tender was evidence the order could have been complied with. With respect to DHS’s “willfulness” in disregarding the court’s order, the court stated, “there are various degrees of willful as there are various types of being willful, and I think in an agency this big, you’re going to have some lags in time, and we understand that. What I’m concerned with is, I think the agency just deliberately did not do very much to comply with the Court’s order until pretty much the eleventh hour.”
That was not an inapt characterization of the proof offered by DHS to explain its inaction, and while it may not have been motivated by rancor, neither was it inadvertant. We hold, therefore, there was substantial evidence to support the trial court’s finding that DHS was in willful contempt of paragraphs 9 and 12 of its May 1,1990, order. It was undisputed the order was not complied with and we find no basis for disagreement with the conclusion of the trial court that DHS’s failure to act constituted willful contempt.
Another argument of DHS is that it was in substantial compliance with the order because other equivalent cash services were provided. DHS asserts that this ongoing assistance to the family is evidence that DHS did not willfully disobey the court’s orders.
Generally, before a person or entity may be held in contempt for violating a court order, the order must be definite and distinct regarding the duties imposed. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986). This order was clear and unambiguous. Paragraph 9 directed DHS to provide bus tokens and paragraph 12 ordered the agency to provide the balance of cash assistance to Ms. Clark. Those provisions do not direct DHS to provide alternative services and, consequently, other services may not be substituted. A holding to the contrary would allow parties to ignore specific court orders and fashion their own methods of compliance.
For its final point DHS argues that the court violated Ark. Code Ann. § 16-10-108(b)(1) (1987), by ordering a fine in excess of the statutory limitation of $50. DHS recognizes that this court has previously determined that § 16-10-108 is not a limitation on the power of the courts to impose punishment for disobedience of process, because under art. 7, § 26 of the Arkansas Constitution the legislature cannot abridge the power of the courts to punish for contempt in disobedience of their process. Yarbrough v. Yarbrough, supra. Nevertheless, DHS argues that willful disobedience of process is different from willful disobedience of a court order, to which the statutory limitation applies. We disagree that disobedience of process is different from disobedience of a court order. In Smith v. Smith, 28 Ark. App. 56, 770 S.W.2d 205 (1989), the Court of Appeals addressed the same issue. In Smith, the appellant was sentenced to 84 days of incarceration for violating an order regarding child visitation. In discussing the trial court’s authority to sentence Mr. Smith to 84 days in jail, the Court of Appeals wrote:
An order of court is process, and while the constitution delegated authority to the legislature to regulate punishment for contempt, this delegation has been construed by the Supreme Court to be in addition to and not in derogation of the inherent power of the court. Pursuant to its inherent power, the court may also punish for contempt, which includes disobedience of process. The term “process” has been defined broadly by our statutes and case law. Ark. Code Ann. § 16-55-102(a) (16) (1987) provides that “[p]rocess means a writ or summons issued in the course of judicial proceedings.” Subsection (a) (23) of that provision defines “writ” as meaning an order or precept in writing, issued by a court, clerk or judicial officer. The Supreme Court has stated that “[p]rocess in the sense of the statutes is a comprehensive term which includes all writs, rules, orders, executions, warrants or mandates issued during the progress of an action.” Henderson v. Dudley, 264 Ark. 697, 709, 574 S.W.2d 658, 665 (1978). [Emphasis added.]
Id. at 65, 770 S.W.2d at 210.
In Hickinbotham v. Williams, Chancellor, 228 Ark. 46, 305 S.W.2d 841 (1957), the Supreme Court discussed the underlying necessity for contempt powers:
Fines and jail sentences are given, not only as punishment for disregarding the court’s orders, but of equal importance, for the purpose of deterring a defendant from future disregard of such orders. Not only does such action act as a deterrent to the particular defendant charged with contempt, but also to others who might contemplate disobedience of a court order. To summarize, contempts are punishable because of the necessity of maintaining the dignity of, and respect toward, the courts, and their decrees.
Id. at 50, 305 S.W.2d at 843.
Thus, the statutory limitation is not applicable to judicial orders, and to hold otherwise would defeat the court’s inherent power to enforce its orders.
Affirmed. | [
-76,
-20,
-11,
92,
10,
-63,
58,
-116,
83,
-69,
85,
83,
43,
-10,
21,
107,
106,
111,
113,
105,
-61,
-73,
87,
65,
98,
-13,
-79,
-43,
-77,
95,
-92,
-42,
74,
48,
-86,
89,
66,
64,
-9,
-64,
-114,
3,
-117,
109,
81,
6,
32,
35,
-110,
15,
53,
-82,
-85,
44,
86,
-54,
41,
108,
89,
49,
-40,
-13,
-102,
7,
95,
6,
-111,
36,
-110,
7,
64,
127,
-116,
49,
1,
-24,
51,
-94,
-126,
116,
67,
-103,
37,
36,
98,
-127,
12,
-41,
-72,
12,
54,
-98,
-115,
-74,
-102,
89,
11,
15,
-74,
-76,
124,
22,
14,
120,
75,
-116,
124,
108,
8,
-50,
30,
-95,
28,
17,
-98,
35,
-61,
65,
112,
53,
-123,
-14,
84,
-61,
115,
-101,
-82,
-41
] |
Jack Holt, Jr., Chief Justice.
The appellants, Chuck Pennington and Stacey Sexton were charged with others, in the Hot Spring County Circuit Court, with criminal mischief in the first degree, a class C felony. The charges arose from the appellants’ alleged participation in the damage to some tombstones in a local cemetery. The police incident report indicated that approximately 30 tombstones had been knocked over, and several broken.
Two of the young men involved were nineteen and twenty years old; as appellants Pennington and Sexton were both seventeen years of age, they, together with another defendant who is not involved in this appeal, elected to file motions to transfer the case to juvenile court, pursuant to Ark. Code Ann. § 9-27-318 (Supp. 1989). The circuit court conducted the hearing required by statute on the appellants’ motions and denied the transfers.
From this decision, Pennington and Sexton appeal, contending that the trial court erred in relying solely on the prosecutor’s judgment in bringing the case before circuit court, despite its findings favorable to Pennington and Sexton with regard to the factors enumerated in section 9-27-318. We agree and reverse and remand to circuit court.
Section 9-27-318(e) provides that in deciding whether to transfer the case or to retain jurisdiction, the court in which the criminal charges have been filed shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
Subsection (f) further provides that the trial court’s finding that a juvenile should be tried as an adult must be supported by clear and convincing evidence.
We recently held that the party seeking the transfer has the burden of going forward with the proof to show that a transfer is warranted under the statute. . . [H]e only fails if there is clear and convincing countervailing evidence to support a finding that the juvenile should remain in circuit court.” Walker v. State, 304 Ark. 393, 399, 803 S.W.2d 502 (1991). Our standard of review then becomes a question of whether the trial court abused its discretion; that is, whether the decision, based on the evidence presented, was arbitrary or groundless. Walker v. State, supra; Looper v. Madison Guar. Savings & Loan Ass’n, 292 Ark. 225, 729 S.W.2d 156 (1987).
In making its determination, the trial court had before it the prosecutor’s information, the testimony of both appellants, and the testimony of one witness for the State. The information recites that the appellants “did unlawfully, purposely and without legal justification, destroy or cause damage to thirty (30) tombstones. . .amount of actual damages to said property exceeding $500.00 . . . .” At the hearing, both appellants testified to completing high school through G.E.D. certification. Sexton stated that he had plans to join the navy, and Pennington testified he also had tentative plans to enlist in the military. Neither had any prior arrests or convictions, and both parties expressed a willingness to participate in rehabilitative programs.
In response, the State offered the testimony of Maurice Hendrix, a local resident who had relatives buried in the cemetery and who testified that the damage to the tombstones was emotionally upsetting to his family. Mr. Hendrix stated that the appellants should be tried in circuit court as it was his understanding that they would receive more lenient treatment in juvenile court. Mr. Hendrix conceded he had no knowledge of the workings of the court system.
Following the testimony and arguments of counsel, the trial court recited its findings of fact, acknowledging that the crime involved was not violent in nature; that the act did not appear to be part of a pattern of past or future criminal activity; that Pennington and Sexton showed no history of problems “other than problems that most kids go through”; and that there was no reason to believe they could not be rehabilitated.
The court then continued, however, with these remarks:
. . .[B]ut all these kids, these three kids are seventeen years old. There were two others involved, one nineteen and one twenty. They’re all hovering right around the age of adults, either as young adults or almost young adults.' The prosecutor chose to charge these individuals as adults and charged them with felonies rather than with misdemeanors and Fm not going to upset that charge. Fm not going to substitute my judgment in this case for that of the prosecutor. If he wants to proceed with felony charges against these three, well, he certainly may do so. Motion to transfer is denied.
The court correctly considered each of the three factors as required by section 9-27-318 and, in reaching its decision, the circuit court was not required to give equal weight to each factor, nor was the prosecutor required to introduce proof against the juvenile with regard to each factor. See Hallman v. State, 288 Ark. 448, 706 S.W.2d 381 (1986); Walker v. State, supra.
However, it is obvious, as Pennington and Sexton contend, that despite careful consideration of the statutory factors, the trial court ignored its own findings favorable to them and deferred solely to the prosecutor’s judgment in selecting a forum for trial. Such action on the part of the trial court defeats the purpose of the Arkansas Juvenile Code which recognizes the need for careful, case-by-case evaluation when juveniles are charged with criminal offenses. Section 9-27-318 clearly delegates the responsibility for determining which court is most appropriate to the court in which the charges were brought, and the abdication of this responsibility to the prosecutor, in this case, was an abuse of the court’s discretion.
Once the appellants went forward with their proof to warrant moving the case to juvenile court, the State was required to produce countervailing evidence warranting its retention in circuit court. This was not done. The State introduced no evidence of violence, negative past history or criminal records, or any character traits which would reflect poorly on the appellants’ prospects for rehabilitation.
This case does not resemble, in the least, Walker v. State, supra, where we held that the felony information, in and of itself, sufficiently highlighted the seriousness and violence involved in the juvenile’s first degree murder offense to justify the case’s retention in circuit court.
For the foreseeing reasons, we reverse and remand both cases to the trial court for appropriate disposition.
Hays, J., dissents. | [
112,
-23,
-9,
60,
10,
97,
59,
-68,
3,
-13,
39,
83,
39,
-50,
9,
115,
99,
63,
84,
104,
-48,
-73,
103,
97,
-96,
-13,
89,
71,
-70,
77,
36,
-57,
74,
80,
-114,
-43,
-122,
58,
-89,
30,
-122,
-120,
-118,
-24,
80,
-122,
48,
109,
22,
14,
-11,
15,
-77,
43,
61,
-61,
105,
40,
75,
-71,
88,
19,
-118,
5,
-3,
22,
-93,
38,
-103,
5,
-16,
46,
-112,
57,
9,
-6,
115,
-122,
-126,
100,
111,
-103,
-115,
96,
102,
1,
29,
-26,
-72,
-120,
46,
51,
-71,
-89,
-104,
73,
75,
-119,
-73,
-105,
114,
20,
-118,
-2,
99,
5,
17,
108,
-128,
-113,
-48,
-93,
-83,
48,
-34,
50,
-61,
1,
52,
49,
-50,
-30,
86,
87,
112,
-97,
-114,
-11
] |
Per Curiam.
Petitioner, Ricky Samuel Vaughan, by his attorney, William Isaacs, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his failure to timely file the record in this court. See Ark. R. App. P. 5(a).
We find that such failure, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979). | [
-76,
-20,
-36,
60,
10,
32,
50,
62,
-37,
-61,
-32,
83,
-89,
-53,
20,
121,
115,
111,
85,
123,
-54,
-73,
55,
65,
34,
-13,
-31,
86,
55,
109,
-4,
-71,
72,
48,
-118,
-107,
70,
72,
-123,
84,
-106,
3,
27,
-27,
113,
1,
60,
41,
-46,
15,
53,
54,
-29,
-81,
30,
69,
-23,
40,
77,
30,
80,
-79,
-102,
29,
127,
20,
-95,
-60,
29,
-123,
-40,
126,
-116,
-79,
2,
-24,
51,
-90,
-122,
116,
79,
59,
8,
102,
102,
50,
-100,
-17,
-88,
-88,
54,
58,
-99,
-90,
-111,
105,
107,
-19,
-106,
-99,
59,
20,
38,
-2,
98,
-51,
89,
44,
6,
-50,
-12,
-109,
31,
112,
-124,
107,
-22,
3,
16,
117,
-50,
-26,
-34,
71,
19,
-109,
-98,
-76
] |
John E. Jennings, Chief Judge.
Roger Miller was charged with possession of a controlled substance (cocaine) with intent to deliver and driving on a suspended driver’s license. After a pretrial motion to suppress evidence was denied, Miller entered a conditional plea of guilty under Ark. R. Crim. R 24.3(b). He was sentenced to twenty-five years imprisonment with ten years suspended on the drug charge, and was fined $500.00 for driving on a suspended license.
The primary argument on appeal is that the trial court erred in not finding that Miller’s arrest was pretéxtual and therefore erred in not suppressing the evidence obtained as the result of the arrest. We find no error and affirm.
The facts are not in dispute. Most of the testimony at the suppression hearing was provided by Roger Ahlf, an Arkansas state police officer, who worked as a narcotics investigator. In December of 1991, Ahlf was working with David Drennan, a narcotics investigator for the Searcy Regional Drug Task Force. During that time Ahlf and Drennan were told by a confidential informant that the appellant was a cocaine dealer. Ahlf was also told by the confidential informant that appellant was driving a black van on a suspended driver’s license, and Ahlf verified this information.
On December 18, 1991, Officer Ahlf stopped the appellant for driving on a suspended driver’s license. Ahlf testified that he normally did not work traffic, that he wrote only two or three tickets per year, and that he stopped the appellant in hopes that he would find drugs. He testified that he frisked the appellant for weapons, that he knew appellant to be a drug user, and that he knew that people who use cocaine carry razor blades. In the course of the search of appellant’s person, Ahlf found an address book containing marijuana residue, described as “probably less than I-V2 of a gram.” Miller was taken into custody and the officer’s search of the van turned up a plastic bag containing cocaine!
The circuit court in denying the motion to suppress said, “While Investigator Ahlf may have had motives in addition to a traffic stop, the evidence does not establish that the arrest would not have been made but for the drug and search interest of Investigator Ahlf.”
Appellant relies primarily on Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986). There, the supreme court quoted from McKnight v. United States, 183 F.2d 977 (D.C. Cir. 1950):
The Supreme Court has specifically held that “an arrest may not be used as a pretext to search for evidence.” United States v. Lefkowitz, 285 U.S. 452 (1932). ... It is settled law that “when it appears, as it does here, that the search and not the arrest was the real object of the officers in entering upon the premises, and that the arrest was a pretext for or at the most an incident of the search,” the search was not reasonable within the meaning of the Constitution. Henderson v. United States, 12 F.2d 528 (4th Cir. 1926).
Appellant also notes the supreme court’s approval of a statement found in Brown v. State, 442 N.E.2d 1109 (Ind. 1982), that “the issue of pretext arrest only arises when the surrounding circumstances show that the arrest is only a sham being used as an excuse for making a search for evidence of a different and more serious offense for which no probable cause exists.”
While it is true that the issue of pretextual arrest was the subject of extended discussion in Richardson, it would seem that the real basis for the court’s holding was a violation of the detention limits imposed by Rule 3.1 of the Arkansas Rules of Criminal Procedure. The court in Richardson said, “Regardless of whether we can technically justify the arrest on the charge of public intoxication, we can find no justification whatever for these rules violations.”
Shortly after the decision in Richardson, the supreme court decided Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986). After distinguishing Richardson, the court, in a unanimous decision, said:
Claims of pretextual arrest raise a unique problem in the law — deciding whether an ulterior motive prompted an arrest which otherwise would not have occurred. Confusion can be avoided by applying a “but for” approach, that is, would the arrest not have occurred but for the other, typically the more serious, crime. Where the police have a dual motive in making an arrest, what might be termed the covert motive is not tainted by the overt motive, even though the covert motive may be dominant, so long as the arrest would have been carried out had the covert motive been absent. Professor LaFave, Criminal Procedure, § 3.1(d), p. 144, describes this as the correct result. Because the action would have been taken in any event, he states, “[T]here is no conduct which ought to have been deterred and, thus, no reason to bring the Fourth Amendment exclusionary rule into play.” Abel v. United States, 362 U.S. 217 (1966). See People v. Guido, 95 Misc.2d 47, 407 NYS 2130 (1978).
See also, Ray v. State, 304 Ark. 489, 803 S.W.2d 894 (1991). As the decision in Hines at least implies, the test should be an objective one. Virtually all courts that have recently considered the question agree. See, e.g., United States v. Rivera, 906 F.2d 319 (7th Cir. 1990) (an officer’s subjective intent is irrelevant); United States v. Trigg, 925 F.2d 1064 (7th Cir. 1991); United States v. Rivera, 867 F.2d 1261 (10th Cir. 1989); (an objective analysis of the facts and circumstances of a pretextual stop is appropriate, rather than an inquiry into the officer’s subjective intent); United States v. Guzman, 864 F.2d 1512 (10th Cir. 1988); United States v. Causey, 834 F.2d 1179 (5th Cir. 1987); United States v. Gallo, 927 F.2d 815 (5th Cir. 1991); United States v. Bates, 840 F.2d 858 (11th Cir. 1988); State v. Mease, 842 S.W.2d 98 (Mo. 1992); State v. Olsen, 482 N.W.2d 212 (Minn. 1992); State v. Garcia, 461 N.W.2d 460 (Iowa 1991). These decisions and others are based, at least in part, on statements made by the United States Supreme Court. In Scott v. United States, 436 U.S. 128 (1978), the Supreme Court said that police searches are to be tested “under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.” In Horton v. California, 496 U.S. 128 (1990), the Court said that “evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.” Professor LaFave puts it this way:
Likewise, if the police stop X’s car for minor offense A, and they “subjectively hoped to discover contraband during the stop” so as to establish serious offense B, the stop is nonetheless lawful if “a reasonable officer would have made the stop in the absence of the invalid purpose.”
1 Wayne R. LaFave, Search and Seizure (Supp. 1994 at 22). We conclude that this is the test to be applied. We think this test is consonant with the most recent decisions of the Arkansas Supreme Court in Hines and Ray, and with the statements of the United States Supreme Court in Horton v. California. It was also the test utilized by the trial court here.
In the case at bar it is quite clear that Officer Ahlf’s primary purpose in stopping appellant was to search for drugs. As the. supreme court said in Hines, however, the arrest is not “tainted” by this fact “so long as the arrest would have been carried out” anyway. We think that the trial court’s finding that the arrest would have occurred in any event is not clearly erroneous. The test is whether a “reasonable officer” would have made the traffic stop — not whether this particular officer would have made the stop absent his ulterior motive. The Constitution does not prohibit officers assigned to work on particular types of offenses to refrain from arresting those who commit offenses outside the officers’ area of specialty.
If, as we have held, the stop and arrest of the appellant was valid, there remains the question of the validity of the subsequent search. Officer Ahlf characterized the search as both an “inventory” and as a search incident to arrest. Our decision on this point is clearly governed by New York v. Belton, 450 U.S. 1028 (1981). There the Court held that when a policeman has made a lawful custodial arrest of the occupants of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. See also, Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988); Williams v. State, 4 Ark. App. 24, 627 S.W.2d 28 (1982). Because this was a valid search incident to arrest under Belton we need not reach the issue of whether a valid inventory was conducted. See Stevens v. State, 38 Ark. App. 209, 832 S.W.2d 275 (1992).
For the reasons stated the decision of the trial court is affirmed.
Robbins and Mayfield, JJ., agree.
The Eighth Circuit Court of Appeals has held that the test is whether the officer could validly have made the stop and that “so long as the police are doing no more than they are legally permitted and objectively authorized to so, [the resulting stop or] arrest is constitutional.” United States v. Cummins, 920 F.2d 498 (8th Cir. 1990) (quoting United States v. Trigg, 878 F.2d 1037 (7th Cir. 1989)). | [
112,
-18,
96,
60,
42,
-63,
58,
60,
83,
-29,
-11,
115,
-83,
82,
0,
113,
-23,
95,
116,
75,
-33,
-74,
103,
17,
-14,
-9,
120,
-41,
-77,
79,
-20,
-44,
30,
52,
-126,
-43,
36,
72,
-121,
88,
-58,
22,
-112,
82,
112,
80,
36,
43,
18,
15,
49,
31,
-93,
14,
17,
-49,
-19,
44,
-53,
-84,
88,
-16,
26,
31,
-49,
6,
-93,
82,
-103,
13,
-40,
60,
24,
49,
17,
104,
51,
-90,
-128,
116,
123,
-103,
36,
100,
98,
5,
125,
-20,
-84,
-120,
22,
-86,
13,
-89,
90,
73,
73,
-113,
-74,
-99,
110,
24,
-114,
-18,
123,
85,
85,
108,
47,
94,
-108,
-111,
9,
48,
-122,
112,
-21,
97,
16,
112,
-51,
-30,
86,
85,
81,
-38,
-58,
-42
] |
Judith Rogers, Judge.
Appellants, Roy Cate and Judie Cate, appeal from a summary judgment entered against them by the Washington County Circuit Court for a debt due appellees, Charles Irvin and Ivy Irvin. We find no error and affirm.
In 1987, appellants sold the Sunshine Frozen Yogurt Shop in Springdale to appellees. In 1988, appellees sold the shop to Phyl Brinkley, Deborah Brinkley, Phil Dewey and Gail Dewey; the Brinkleys later acquired the Deweys’ interest in the shop. The Brinkleys defaulted in their payments to appellees, and in a written contract dated December 31, 1990, appellants agreed to purchase the shop and to assume the Brinkleys’ indebtedness to appellees. The 1990 contract contained a merger clause and provided that it could only be modified in writing. Appellants contend that, before they entered into the contract with the Brink-leys, appellees orally agreed to accept $4,000.00 from appellants as full payment of the debt due them. Appellees deny that such an agreement was made.
After appellants defaulted, appellees sued the Brinkleys, the Deweys, and appellants for $7,820.00, the full amount due on the contract, and attached copies of the 1988 and 1990 contracts to their complaint.
In their answer, appellants stated:
[B]efore entering into the contract . . . with the Brink-leys, [Appellant] Roy B. Cate talked to Charles S. Irvin and it was agreed between them that if the Cates would assume the Brinkley contract, which was then in default, Irving [sic] would accept Four Thousand Dollars ($4,000.00) in full payment of their interest in the Brinkley contract, payable by the Cates executing a promissory note with payments to begin in June of 1991. Relying on that agreement, the Cates entered into the contract with the Brinkleys to protect both themselves and the Irvins.
In their answers to appellees’ requests for admissions of fact, appellants admitted that they had assumed the Brinkleys’ debt to appellants but stated that, “at that time, the [appellees] had agreed to accept a note from the Cates in the principal amount of $4,000.00 as payment of that indebtedness.” Appellants filed an amended answer and counterclaim wherein they stated that appellees had agreed to accept $4,000.00 in full payment of the debt and, as a result of that representation, appellants had entered into operation of the yogurt shop.
Appellees moved for summary judgment against the Brink-leys, the Deweys, and appellants, arguing that the purported oral agreement to limit the debt to $4,000.00 was inadmissible under the parol evidence rule. In their affidavit supporting their motion, appellees denied agreeing, either orally or in writing, to accept any reduced amount for the debt.
In their brief in response to appellees’ motion for summary judgment, appellants set forth a lengthy recitation of facts which they claimed demonstrated that they had a separate oral contract with appellees:
Cate . . . contacted Irvin and explained that if Brinkley and Dewey defaulted, both Cate and Irvin would sustain financial losses. Cate inquired of Irvin how much he would settle for to cancel the debt that Brinkley and Dewey owed him. At this time, the amount of the debt was approximately $7,800. Irvin called Cate on the telephone and told Cate and he would accept $4,000 to settle the Brinkley/Dewey debt, and allow Cate to operate the business.
Pursuant to this agreement, Cate bought the yogurt store on December 31, 1990. On January 7, 1991, Cate executed a promissory note in which he agreed to pay Irvin $4,000.
In their affidavit supporting their response to the motion for summary judgment, appellants stated that the facts recited in the brief were correct and incorporated them within their affidavit.
In a letter opinion, the circuit judge initially held that evidence of the purported oral agreement to limit the debt to $4,000.00 did not violate the parol evidence rule because there was no written contract between appellees and appellants. Appellees then moved for reconsideration of this holding, arguing that they could properly invoke the parol evidence rule as to the purported oral agreement because they were third-party beneficiaries of the contract wherein appellants agreed to assume the debt due appellees.
The circuit court was persuaded by appellees’ argument and entered summary judgment for appellees against the Brinkleys, the Deweys, and appellants in the amount of $11,714.00, which included interest, attorneys’ fees, and costs. The circuit court concluded that appellees were third-party creditor beneficiaries of the 1990 contract of sale between the Brinkleys and appellants and that the parol evidence rule would not permit oral modification of that contract. The Deweys and the Brinkleys have not appealed.
On appeal, appellants argue that the trial court erred in granting appellees’ motion for summary judgment because they had an original and independent agreement with appellees. They argue that the parol evidence rule does not bar evidence of their separate oral agreement with appellees regarding the debt. Apparently, appellants seek to persuade this court that prior oral negotiations and agreements between a party to a written contract and the third-party beneficiary of that contract are not subject to the parol evidence rule. As explained below, we disagree. Appellants alternatively argue that, even if the parol evidence rule does apply, it does not bar such evidence in this case because a written contract may be modified or revoked by a subsequent oral agreement even if the written contract says otherwise. Therefore, appellants argue, whether an oral modification of the written agreement occurred is also a question of fact which should be tried. Again, we disagree.
The parol evidence rule prohibits the introduction of extrinsic evidence, parol or otherwise, which is offered to vary the terms of a written agreement; it is a substantive rule of law, rather than a rule of evidence, and its premise is that the written agreement itself is the best evidence of the intention of the parties. First Nat’l Bank of Crossett v. Griffin, 310 Ark. 164, 168, 832 S.W.2d 816, 819 (1992), cert. denied, _ U.S. _, 113 S.Ct. 1280 (1993). It is a general proposition of the common law that in the absence of fraud, accident or mistake, a written contract merges, and thereby extinguishes, all prior and contemporaneous negotiations, understandings and verbal agreements on the same subjects. Id. It is well settled that a written contract may be modified by a later oral agreement. O’Bier v. Safe-Buy Real Estate Agency, Inc., 256 Ark. 574, 576, 509 S.W.2d 292, 293 (1974); Prudential Ins. Co. of America v. Stratton, 14 Ark. App. 145, 149, 685 S.W.2d 818, 820 (1985). Such testimony is inadmissible if it tends to alter, vary, or contradict the written contract but is admissible if it tends to prove a part of the contract about which the written contract is silent. Gallion v. Toombs, 268 Ark. 955, 956-57, 597 S.W.2d 842, 843 (Ark. App. 1980).
We agree with the circuit court that the parol evidence rule applies to the purported oral agreement between appellants and appellees. Appellees clearly were the third-party beneficiaries of the 1990 contract wherein appellants agreed to purchase the business from the Brinkleys and to assume the indebtedness to appellees. It is established law that a contract made for the benefit of a third party is actionable by the third party. Howell v. Worth James Constr. Co., 259 Ark. 627, 629, 535 S.W.2d 826, 828 (1976); Monaghan v. Davis, 16 Ark. App. 258, 260, 700 S.W.2d 375, 376 (1985).
' Appellants have cited no case which holds that the parol evidence rule is not applicable to prior negotiations and agreements regarding a contract’s terms between a party to the contract and the third-party beneficiary of that contract. Our research leads us to conclude that the parol evidence rule was properly applied by the circuit court. It has often been held that the parol evidence rule applies only where the controversy is between the parties to the instrument or their privies and that parol evidence can be used to vary a contract when the litigation is between a party to the contract and a stranger thereto. See Sil- vicraft, Inc. v. Southeast Timber Co., 34 Ark. App. 17, 21-22, 805 S.W.2d 84, 87 (1991); Echo, Inc. v. Stafford, 21 Ark. App. 201, 203, 730 S.W.2d 913, 914-15 (1987); Sterling v. Landis, 9 Ark. App. 290, 293, 658 S.W.2d 429, 431 (1983). In Barfield Mercantile Co. v. Connery, 150 Ark. 428, 431, 234 S.W. 481, 482 (1921), the supreme court noted that the parol evidence rule may be applied to the parties to the instrument and to those claiming some right or interest under it. This holding was discussed and applied in Rainey v. Travis, 312 Ark. 460, 464-65, 850 S.W.2d 839, 841 (1993). As third-party beneficiaries of the contract, appellees clearly claim rights under that contract and are directly interested therein. It can also be said with certainty that appellees are not strangers to that contract. Accordingly, the parol evidence rule could properly be invoked by appellees.
It is also apparent that the purported oral agreement by appellees to accept only $4,000.00 from appellants, even if true, occurred prior to appellants’ execution of the 1990 contract to purchase the shop from the Brinkleys. Accordingly, under the parol evidence rule, evidence of this prior oral agreement is not admissible.
Summary judgment should be granted only when a review of the pleadings, depositions, and other filings reveals that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Magness v. Commerce Bank, 42 Ark. App. 72, 77, 853 S.W.2d 890, 893 (1993); Watts v. Life Ins. Co. of Ark., 30 Ark. App. 39, 41, 782 S.W.2d 47, 48 (1990). Once the moving party makes a prima facie showing of entitlement to summary judgment, the party opposing summary judgment must meet proof with proof by showing a genuine issue as to a material fact. Magness v. Commerce Bank, 42 Ark. App. at 78, 853 S.W.2d at 893.
On motion for summary judgment, the court is authorized to ascertain the plain and ordinary meaning of a written instrument after any doubts are resolved in favor of the party moved against, and if there is any doubt about the meaning, there is an issue of fact to be litigated. Moore v. Columbia Mut. Casualty Ins. Co., 36 Ark. App. 226, 228, 821 S.W.2d 59, 60 (1991). When a contract is unambiguous, its construction is a question of law for the court. Id. The initial determination of whether a contract is ambiguous rests with the court. Id. When the terms of a written contract are ambiguous, the meaning of the contract becomes a question of fact. Stacy v. Williams, 38 Ark. App. 192, 196, 834 S.W.2d 156, 158 (1992). We agree with the circuit court that appellants failed to demonstrate a genuine issue of material fact and hold that summary judgment was properly entered for appellees.
Affirmed.
Pittman and Cooper, JJ., agree. | [
-16,
-20,
-44,
108,
26,
-96,
58,
-126,
74,
-85,
39,
119,
-85,
69,
16,
41,
-27,
-115,
84,
122,
83,
-77,
7,
34,
-46,
-77,
-15,
-35,
-80,
-51,
-28,
-44,
12,
-80,
-62,
5,
-58,
-61,
-35,
-106,
110,
-126,
41,
96,
-7,
2,
48,
123,
16,
7,
113,
-114,
-13,
44,
24,
75,
108,
46,
123,
105,
-48,
-16,
-86,
-115,
91,
22,
-78,
37,
-68,
51,
-38,
14,
-112,
57,
1,
-24,
114,
-90,
-58,
124,
9,
25,
9,
38,
102,
0,
1,
-43,
-36,
-100,
-114,
-2,
-99,
-89,
-11,
120,
11,
77,
-65,
-99,
120,
80,
-125,
-2,
-18,
-123,
31,
-20,
-127,
-50,
-44,
-109,
-98,
-4,
-116,
23,
-41,
-94,
49,
113,
-49,
120,
93,
99,
59,
-125,
-50,
-9
] |
John E. Jennings, Chief Judge.
In 1984 D’Jer, Inc., an Arkansas corporation, borrowed 4.2 million dollars from Audubon Federal Savings and Loan Association, a Louisiana institution, to build a truck stop at Brinkley, Arkansas. The note was secured by a deed of trust. D’Jer leased the “convenience store” part of the project to the appellant, Coleman’s Service Center, Inc., also an Arkansas corporation. D’Jer defaulted on the note, the project was refinanced, and the real property was conveyed and recon-veyed several times.
In 1986 Audubon Savings and Loan failed, and the Federal Deposit Insurance Corporation (as receiver for Audubon and successor to the FSLIC) sued in federal district court to foreclose the deed of trust for nonpayment on the note. Coleman’s was made a party to that action.
The United States District Court for the Eastern District of Arkansas appointed the appellee, Southern Inns Management, Inc., as the receiver for the project property. In that capacity Southern Inns then dismissed its cause of action against Coleman’s in federal court and filed an action for a writ of possession in Mon roe County Circuit Court, based on Coleman’s alleged nonpayment of rent.
On February 13, 1991, the circuit court entered a “judgment” directing the clerk of the court to issue a writ of possession. The order recites “that plaintiffs have presented prima facie evidence that they are entitled to judgment against defendant in the amount of $143,240.90 with interest
On March 22, 1991, Coleman’s filed a counterclaim against Southern Inns and the FDIC, and a third-party complaint against Don Dedman, alleging that the counter-defendants and cross-defendant took possession of Coleman’s property “without justification or adequate basis.” The pleading alleged both breach of contract and slander.
On January 23, 1992, the circuit court dismissed Coleman’s counterclaim and third-party complaint based upon lack of subject matter jurisdiction under Ark. R. Civ. Pro. 12(b)(1).
On February 7, 1992, the court entered an order pursuant to Rule 54(b) of the Rules of Civil Procedure finding “that it would be highly prejudicial for the plaintiff [Southern Inns and the FDIC] to proceed to trial and obtain judgment against Coleman’s Service Center, Inc. on its cause of action without first having a final adjudication of said Coleman’s Service Center, Inc.’s right to assert its counterclaim and third-party complaint.” Based on that finding, the court directed “that final judgment be entered as to the counterclaims and third-party complaint of Coleman’s Service Center, Inc. as amended pursuant to the above mentioned express determinations by the court.”
On February 14, 1992, Coleman’s filed a notice of appeal reciting that “it appeals all orders and judgments entered herein.” Coleman’s subsequently retained its present counsel.
Coleman’s now raises four “points to be relied upon” which follow verbatim: 1) This court has no jurisdiction of the subject matter of this case since the dismissal of the issues relating to the D’Jer-Coleman lease from the federal case does not permit refiling of these issues in the state court; 2) The trial court erred in refusing to set aside the judgment rendered in favor of the plaintiffs against the defendants at the September 12, 1991 hearing; 3) The “restructuring” of the original indebtedness to FDIC by Audubon was a novation, an entirely new obligation between different parties; 4) The order of the court finding that the super-sedeas bond proffered by defendant Coleman’s was not timely filed and did not otherwise comply with the statute is clearly erroneous.
We note at the outset the appellees’ argument that the trial court erred in permitting the appellant to take an interlocutory appeal under Rule 54(b). The trial judge expressly relied on Austin v. First National Bank, 305 Ark. 456, 808 S.W.2d 773 (1991). The subsequent decision by the supreme court in Fisher v. Citizens Bank, 307 Ark. 258, 819 S.W.2d 8 (1991), seems to take a more restrictive approach. In Fisher the court said:
[Mjerely tracking language of Rule 54(b) will not suffice; the record must show facts to support the conclusion that there is likelihood of hardship or injustice which would be alleviated by an immediate appeal rather than at the conclusion of the case. Those essential findings, and the facts which undergird them, are wholly lacking in this order. The rule is not intended to create an avenue for two stages of review simply by citing Rule 54(b). It is intended to permit review before the entire case is concluded, but only in those exceptional situations where a compelling, discernible hardship will be alleviated by an appeal at an intermediate stage.
Even so, we cannot say in the case at bar that the trial court’s findings are clearly wrong. We therefore conclude that we are not without jurisdiction to hear the appeal.
Whether the issues raised by the appellant are within the scope of the appeal is a different matter. The appellee contends that they are not, and we agree. Under Ark. Code Ann. § 18-60-307 (Supp. 1991), an action for unlawful detainer is a two-step process. The statute contemplates that the right to possession will be preliminarily determined and, if appropriate, a writ of possession issued, but that the question of damages will be left for a subsequent hearing. The statute expressly provides that an order directing the issuance of a writ of possession shall not be a “final adjudication of the parties’ rights in the action.” Ark. Code Ann. § 18-60-307(d)(l). In the case at bar, the parties are in the middle of the primary lawsuit. While the circuit court has directed the issuance of a writ of possession, its orders clearly contemplate a further hearing on the question of damages. A money judgment has not yet been entered.
The first sentence of Rule 54(b) states: “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment.” This, of course, is what the circuit court did in the case at bar — it directed the entry of final judgment as to the dismissal of appellant’s counterclaim and third-party complaint, in order to permit Coleman’s to appeal that dismissal. The issues Coleman’s raises, however, are totally unrelated to the interlocutory order that it has been permitted to appeal. All of the issues raised relate to the primary cause of action, the suit for unlawful detainer, which is still pending in the circuit court. In the language of Rule 54(b) no “final judgment as to” this “claim” has been entered by the trial judge. Our view is that when the trial court permits an interlocutory appeal under Rule 54(b) the issues raised must be reasonably related to the order or orders appealed from. A Rule 54(b) order may not be used as a vehicle to bring up for review matters which are still pending before the trial court.
Because there is no contention that the trial court erred in dismissing the appellant’s counterclaim and third-party complaint, the decision of the trial court is affirmed.
Affirmed.
Mayfield, J., dissents.
Pittman, J., not participating.
Neither the correctness of the circuit court’s decision to dismiss nor of its stated basis are issues raised on this appeal. | [
-76,
104,
-64,
-68,
8,
96,
48,
-66,
83,
-88,
100,
83,
-21,
-64,
5,
109,
-25,
109,
-43,
120,
-105,
-73,
53,
98,
-46,
-77,
-15,
69,
-79,
-51,
-12,
-41,
-56,
48,
-54,
93,
-122,
-128,
-57,
28,
6,
1,
25,
96,
-15,
-119,
52,
-85,
4,
79,
32,
-91,
-21,
44,
60,
75,
108,
108,
-51,
-67,
83,
-79,
-104,
5,
95,
23,
-111,
68,
-102,
7,
-40,
10,
-108,
52,
8,
-88,
115,
54,
-122,
52,
7,
-67,
4,
38,
99,
2,
5,
-51,
-20,
9,
35,
-97,
-113,
-89,
-62,
40,
11,
43,
-66,
-107,
-36,
31,
69,
-4,
-18,
21,
89,
104,
7,
-50,
-106,
-45,
-124,
84,
-100,
11,
-25,
-125,
49,
112,
-50,
-30,
93,
71,
59,
-101,
-122,
-112
] |
John B. Robbins, Judge.
Appellant Johnnie Lambert was awarded permanent and total disability benefits against appellees Baldor Electric Company and the Second Injury Fund by the Workers’ Compensation Commission on October 23, 1992. Ruling that appellees did not controvert Mr. Lambert’s entitlement to permanent and total disability benefits, the Commission denied appellant’s request for attorney’s fees from Baldor Electric Company and the Second Injury Fund. Mr. Lambert now appeals, arguing that the Commission erred in refusing to award attorney’s fees. In addition, appellant contends that it is a violation of due process for the Commission to decide cases involving the Second Injury Trust Fund because the Administrator of the fund is an employee of the Workers’ Compensation Commission and because the Commission has a financial stake in the outcome of litigation involving the fund. We find no error and affirm.
The facts of the case are not in dispute. Mr. Lambert had been diagnosed with athetoid cerebral palsy with a severe scoliosis prior to beginning work for Baldor Electric in 1968. In 1981, Mr. Lambert suffered a compensable injury to his right shoulder and neck. He sustained subsequent injuries in 1986, and in 1989 he again experienced medical problems and sought temporary disability benefits and medical expenses. Baldor Electric controverted Mr. Lambert’s 1989 claim, but on January 4, 1990, the Administrative Law Judge found that the 1989 claim involved a recurrence of the compensable injury. As a result, Mr. Lambert was awarded temporary disability benefits and attorney’s fees.
Mr. Lambert later became unable to work, and on August 8, 1990, he submitted his resignation. On October 10, 1990, he informed appellees that he was permanently and totally disabled and requested that the Second Injury Fund state its position regarding its responsibility for the permanent disability benefits. On October 19, 1990, Lambert submitted a settlement offer of $60,000 plus attorney’s fees. On October 23, 1990, the Second Injury Fund counter-offered to pay $30,000. On October 30, 1990, Lambert stated that the case could be settled for $50,000. On the same day, Lambert requested a hearing. The Second Injury Fund immediately acknowledged permanent and total disability. Accepting the claim as uncontroverted, the Administrative Law Judge awarded permanent and total disability against the Second Injury Fund.
Mr. Lambert’s constitutional argument is essentially that it is a violation of due process for the Commission to decide cases involving the Second Injury Trust Fund. He claims that he was denied due process rights guaranteed him by the Arkansas Constitution, Article 2, Section 8, and the United States Constitution, Amendments 5 and 14. Specifically, he asserts that the Commission is not an impartial decision maker in that Ark. Code Ann. § 11-9-301 (1987) gives the Commission authority to administer, disburse, and invest funds within the Second Injury Trust Fund. In addition, he argues that the Commission is prejudiced because Judy Jolley, administrator of the fund, is an employee of the Workers’ Compensation Commission.
In support of his argument, Lambert relies on Tumey v. Ohio, 273 U.S. 510 (1927). In that case, the United States Supreme Court held that a mayor who received a portion of fines levied on convicted persons could not constitutionally preside over their trials. The Court stated that “it certainly violates the Fourteenth Amendment, and deprives a defendant in a criminal case of due process of law, to subject his liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.” Id. at 523. Appellant also cites Ward v. Village of Monroeville, 409 U.S. 57 (1972), a case in which the Court held that it is a violation of due process for a mayor to sit as a judge when a major part of the village income is derived from fines, forfeitures, costs, and fees. In that case, the mayor was required to account annually for village finances and the revenue produced by the mayor’s court was of such importance that when legisla tion threatened its less, the village retained a management consultant for advice regarding the problem. The court in Turney stated that the test as to whether due process is violated is whether the situation is one “which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and tme between the state and the accused.” 273 U.S. at 532. Applying this standard, the court in Ward ruled that, due to the mayor’s interest in maintaining village finances and the high level of revenue from the mayor’s court, the “possible temptation” to rale improperly constitutionally prevented the mayor from acting as judge. Appellant also cites Gibson v. Berryhill, 411 U.S. 564 (1973), a case in which a state board composed solely of optometrists was constitutionally unable to bring a disciplinary action against other optometrists due to the possible pecuniary interest involved in excluding competitors.
Relying on the above authority, Lambert asserts that the Commission is not impartial when ruling on cases that involve possible Second Injury Fund liability. He correctly states that he is constitutionally entitled to the benefit of an impartial decision maker. However, we do not agree that the Commission is not impartial with regard to Second Injury Fund cases.
We look, to decisions from courts of sister states because neither we nor our supreme court has had occasion to address this issue. Ison v. Western Vegetable Distrib., 59 P.2d 649 (Ariz. 1936), is a case in which a claimant argued that the Arizona Workmens’ Compensation Act was unconstitutional. The constitutional attack in that case was similar to the one in the case at bar in that the appellant argued that the Industrial Commission was not impartial when deciding cases involving compensation to be paid out of the state compensation fund. The Arizona Supreme Court rejected appellant’s due process argument, stating that the Commissioners had no “direct, personal, substantial, pecuniary interest” in the outcome of claims. Id. at 656. The court noted that the state compensation fund was not raised by taxation upon citizens in general, but rather came from employers protected by the fund. This is the case with the Arkansas Second Injury Fund. In addition, the Arizona Supreme Court noted that, the Commissioners’ salaries are neither increased nor decreased by any conclusion they reach regarding compensation. This is also true with regard to the Arkansas Workers’ Compensation Commission. In short, the court held that the Arizona Industrial Commission was not biased even though it was charged with the care and custody of the state compensation fund.
Ison was later cited by the Oklahoma Supreme Court in Duff v. Osage County, 70 P.2d 80 (Okla. 1937). That case involved a constitutional challenge to the State Industrial Commission’s control and management over the State Insurance Fund. Following the reasoning in Ison, the court held that even though the Commission controlled the fund, it was not biased against awarding claimants compensation from the fund. The holding in Ison was again followed in Jenners v. Industrial Comm’n, 491 P.2d 31 (Ariz. App. 1972).
In the instant case it is clear that the Arkansas Workers’ Compensation Commissioners gain no direct benefit in ruling one way or another in Second Injury Fund cases. Their decisions cannot alter their salary nor confer any other benefit on themselves. Ward v. Village of Monroeville, supra, stands for the proposition that even when no direct benefit is conferred on a judge, he may be constitutionally disqualified if subjected to a “possible temptation” to rule in a biased manner. However, in the case at bar, not only can Commissioners receive no direct benefit, but there exists no “possible temptation” to rule in an unjust fashion. Mr. Lambert does not argue, nor is it evident, that the Commission or its employees are affected by the balance of the Second Injury Fund. Even if the administrator of the Second Injury Fund was somehow harmed by a depletion of its funds, the Commission would still have no incentive to rule contrary to the law. Therefore, there is no conflict in the Commission’s handling of cases involving the Second Injury Fund.
Further evidence of impartiality can be seen in the numerous cases in which the Commission has awarded benefits against the Second Injury Fund, only to be reversed by this court on appeal. In fact, the Commission did not hesitate in awarding permanent and total disability benefits against the Second Injury Fund in the instant case. Except for his attorney’s fees, Mr. Lambert received all benefits that he sought from the Fund. It is clear that in practice, the Commission is not partial to the Second Injury Fund.
There is a presumption of constitutionality attendant to every legislative enactment, and all doubts concerning it must be resolved in favor of constitutionality. Holland v. Willis, 293 Ark. 518, 793 S.W.2d 529 (1987). The party challenging a statute has the burden of proving it unconstitutional. Id. In the case at bar Lambert has failed to meet his burden of proving that his constitutional right to due process was violated.
. Mr. Lambert’s remaining argument is that attorney’s fees should have been awarded against the Second Injury Fund or Baldor Electric because the Second Injury Fund controverted his claim by engaging in settlement negotiations. Arkansas Code Annotated § 11-9-715(a)(2)(A) (1987) states that attorney’s fees should be awarded against the Second Injury Fund if the claim against it is controverted. It is undisputed that the Second Injury Fund acknowledged permanent and total disability immediately after Mr. Lambert requested a hearing before the Commission. However, he argues that the Second Injury Fund’s failure to admit to the claim prior to a request for the hearing amounted to a con-troversion of the claim. In support, Lambert relies on Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976). In that case, an employer was deemed to have controverted a claim even though the employer stated that it would not controvert the claim after it was actually filed with the Commission. The court made this determination based on the fact that the employer denied that the claimant’s injury was work-related or compensable until after a claim was filed. The court based its reasoning on the legitimate social purposes of discouraging oppressive delay, deterring arbitrary denials of claims, and assuring claimants of competent representation.
The instant case is distinguishable from Henning. On September 6, 1990, the Second Injury Fund acknowledged by letter that Mr. Lambert appeared to be entitled to permanent and total disability or a reasonable settlement of his claim. Special Funds Administrator Judy Jolley asserted that a settlement might better serve Mr. Lambert’s needs due to a possible Social Security offset. It was Lambert’s attorney who opened settlement negotiations the following month by requesting $60,000 plus attorney’s fees. The Second Injury Fund counter-offered to pay $30,000, and Lambert then stated he would accept $50,000. After Lambert requested a hearing, the Second Injury Fund acknowledged permanent and total disability. Ms. Jolley testified that the only reason this was not formally acknowledged earlier is because settlement negotiations were still pending.
It is clear from the above facts that the Second Injury Fund never intended to dispute the ultimate claim as was done in Henning. Mr. Lambert contends that the $30,000 settlement offer was so low that one should infer that the claim of total disability was being controverted. However, he would have settled for $50,000 and some offset questions existed. We agree with the Commission’s assertion that such settlement negotiations should be encouraged to avoid needless litigation. When a settlement was not reached, Lambert requested a hearing. The Second Injury Fund immediately acknowledged the claim. We conclude that there is substantial evidence to support the Commission’s finding that the Second Injury Fund did not controvert Lambert’s claim.
Alternatively, Mr. Lambert argues that if the Second Injury Fund is not liable for attorney’s fees, then Baldor Electric should be held liable for such fees. Baldor Electric had previously controverted temporary benefits and was ordered to pay attorney’s fees. Lambert now contends that because Baldor Electric controverted disability at a prior hearing such controversion should extend to any disability benefits awarded at any subsequent hearing. This argument is without merit because Baldor Electric did not controvert Lambert’s claim for permanent benefits. While Baldor Electric disputed a claim for temporary benefits at an earlier hearing, to impose perpetual attorney’s fees for any subsequent award of benefits at any later hearing would be contrary to the purposes of the statute that provides for such attorney’s fees. At the August 5, 1991 hearing Baldor Electric did not controvert Lambert’s claim. Therefore, Baldor Electric is not liable for his attorney’s fees for recovering the benefits awarded at that hearing.
For the above reasons, we affirm.
Jennings, C.J., and Rogers, J. agree. | [
-48,
-8,
-35,
30,
26,
64,
26,
-110,
125,
-126,
55,
87,
-17,
-65,
77,
63,
-32,
125,
81,
107,
-45,
35,
19,
105,
-63,
-13,
-5,
87,
-79,
111,
100,
-12,
77,
56,
-126,
-43,
-26,
-128,
-51,
22,
68,
-121,
-71,
108,
57,
3,
56,
111,
16,
91,
17,
-90,
-55,
46,
25,
75,
77,
36,
91,
57,
-64,
-72,
-86,
5,
89,
17,
-79,
4,
-104,
79,
-38,
28,
-104,
53,
0,
-24,
50,
-74,
-62,
-12,
35,
-71,
-116,
102,
98,
-128,
5,
-11,
-16,
-72,
-98,
-105,
-97,
-124,
-109,
88,
26,
11,
-108,
-67,
106,
4,
30,
-4,
-8,
69,
84,
100,
3,
-122,
-108,
-77,
-19,
108,
-114,
-125,
-21,
-81,
54,
17,
-98,
-78,
92,
39,
51,
-101,
103,
-70
] |
Per Curiam.
Rehearing is denied.
Mayfield, J., concurs. | [
-112,
121,
-59,
-66,
-120,
-95,
50,
4,
13,
99,
119,
81,
-67,
-34,
20,
103,
58,
127,
81,
123,
87,
-78,
119,
65,
106,
-45,
-46,
86,
-15,
-18,
-11,
60,
76,
-72,
-29,
-43,
102,
-56,
13,
84,
-122,
29,
-104,
77,
48,
-125,
36,
33,
88,
31,
49,
-41,
-29,
44,
-105,
-57,
-24,
32,
111,
121,
-55,
-104,
-99,
7,
-19,
4,
-78,
52,
-104,
-61,
-44,
78,
12,
-111,
1,
-24,
113,
-28,
-122,
-12,
42,
-71,
-91,
-26,
100,
1,
101,
-50,
-120,
-22,
55,
44,
13,
-90,
-37,
88,
106,
76,
-106,
-67,
125,
112,
46,
-2,
-21,
85,
95,
-20,
14,
79,
-4,
-77,
87,
112,
-124,
66,
-22,
-126,
-112,
17,
-59,
-16,
86,
-61,
51,
-33,
-34,
-16
] |
John Mauzy Pittman, Judge.
The appellant, Brad Taylor, was convicted in municipal court of the misdemeanor of driving while intoxicated, first offense. He then appealed to circuit court. On the day set for his trial de novo in circuit court, appellant failed to appear. The circuit court declined to hold the trial in appellant’s absence, dismissed the appeal, and ordered that the municipal court’s sentence be put into execution. Appellant appeals from the circuit court’s order, contending only that the court erred in denying his attorney’s request that appellant be tried in absen-tia. We affirm.
Appellant argues that, because the defendant in a misdemeanor case need not be present in order for his trial to be held, the trial court abused its discretion in not holding his trial despite his absence. Appellant cites only Ark. Code Ann. § 16-89-103(b) (1987) in support of his argument. That code section provides, “If the indictment is for a misdemeanor, the trial may be had in the absence of the defendant.” (Emphasis added.)
We agree that the statute makes it permissible for a court to hold the trial for an accused misdemeanant in absentia. However, we cannot agree that it is mandatory. More than a century ago, this same statute was construed by the supreme court as making it discretionary with the trial court whether to hold such a trial, assuming that the accused consents to waive the right to be present. See Owen v. State, 38 Ark. 512 (1882). In Owen, the appellant was tried and convicted by a justice of the peace of malicious mischief, a misdemeanor. He appealed the conviction to circuit court. As in the present case, the appellant failed to appear for his trial in circuit court. Although his attorney did appear and offer to proceed in the appellant’s absence, the circuit court dismissed the appeal for want of prosecution. The supreme court affirmed, holding that, while the circuit court under those circumstances could have allowed the case to proceed to trial in the appellant’s absence, it was not legally obliged to do so. The court further stated that holding one’s trial in his absence is a practice not to be commended, especially where imprisonment is a possible punishment in the event of a conviction. The supreme court concluded:
On the failure of appellant to appear for trial in the prosecution of his appeal, as he was bound to do, the court might have ordered him brought in on bench warrant or capias. But the court thought proper, on such failure, to dismiss his appeal, which it had the discretion to do, and which left the judgment of the justice standing and to be enforced.
Owen v. State, 38 Ark. at 513-14. See also Martin v. State, 40 Ark. 364 (1883); Bridges v. State, 38 Ark. 510 (1882).
Similarly, although appellant’s attorney appeared in this case and requested that the trial be held, appellant was absent. Also, as in Owen, imprisonment is a possible punishment for the offense with which appellant had been charged. See Ark. Code Ann. § 5-65-111(a) (1987). No argument is made that § 16-89-103(b) does not apply or that any other relief, such as a continuance, should have been granted. From our review of the record, we cannot conclude that the circuit court abused its discretion under the statute in declining to hold a trial and leaving the municipal court’s judgment intact.
Affirmed.
Rogers, L, agrees.
Cooper, J., concurs. | [
-48,
-22,
-3,
28,
59,
33,
54,
-68,
81,
-13,
101,
-45,
-81,
-13,
0,
59,
59,
123,
117,
121,
-51,
-74,
38,
64,
-78,
-13,
9,
87,
-73,
75,
-10,
-7,
93,
112,
-54,
-43,
68,
79,
-127,
88,
-114,
9,
-103,
-32,
-48,
-125,
32,
121,
18,
15,
81,
-98,
-30,
42,
80,
-50,
-23,
76,
75,
-67,
-48,
84,
-103,
7,
127,
4,
-79,
20,
-103,
7,
120,
62,
28,
57,
9,
-68,
115,
-106,
-126,
101,
105,
-101,
-92,
102,
98,
33,
41,
-122,
-72,
41,
62,
54,
31,
-89,
88,
73,
75,
-115,
-106,
-43,
122,
52,
6,
-4,
108,
-59,
81,
108,
5,
-49,
48,
-95,
-117,
56,
-42,
-46,
-29,
39,
116,
117,
-52,
-10,
84,
71,
121,
27,
-52,
-107
] |
John B. Robbins, Judge.
Appellant, Ruth Jones, has appealed from the Pulaski County Probate and Chancery Courts’ decision (in two consolidated actions) affirming the validity of a purported family settlement agreement into which appellant entered with her nephews, appellees Larry Balentine and Gary Balentine, and their mother, appellee Inez Balentine, the widow of appellant’s predeceased brother, Roscoe Balentine, who died in 1990. The family settlement agreement at issue purported to settle the estate of appellant’s brother, Otto Balentine, who died intestate on April 26, 1991. Appellant has also appealed from the denial of her petition to remove Gary as administrator of Otto’s estate. Appellant is a resident of Baltimore, Maryland, and appellees live in North Little Rock. The parties met with an attorney, Richard Hatfield, in May 1991 and signed an agreement later that day which equally distributed Otto’s estate among appellant and appellees. Without this agreement, Inez would not have been entitled to a share of Otto’s estate.
The next day, the administration of Otto’s estate was opened in the Pulaski County Probate Court, and waivers of inventory, accounting, and notice signed by appellant were filed. An order appointing Gary as administrator of the estate was entered, and letters of administration were issued to him. A week later, Gary made a partial distribution of $340,000.00 in cash without first obtaining the probate court’s approval. In this partial distribution, each party received $85,000.00.
In June 1991, appellant revoked her waivers. She unsuccess fully sought to rescind the agreement and refused to sign some quitclaim deeds in connection with the agreement. In August 1991, appellant filed a petition to remove Gary as administrator, citing the unapproved partial distribution of $340,000.00. In response, Gary admitted that he had not petitioned the probate court for approval but stated that he had relied upon the family settlement agreement in making the partial distribution. Attached to his response was a copy of the family settlement agreement, which stated:
Agreement made by and between Inez Balentine, Ruth Jones, Gary Balentine and Larry Balentine.
1. Otto Balentine died on April 26, 1991, leaving the following property which we, as the persons who are entitled to the property, agree to distribute as follows.
Property Recipient
House located at 1410 Willow Street Inez Balentine
All stock and ownership in Tac-A-Taco Inez Balentine
1979 Lincoln Inez Balentine
1973 Ford LTD Inez Balentine
House and lot located at 1412 Willow Ave. 1/4 each
Cash including C.D.s and checking owning approximately $363,000, less payment of administration expenses and debts 1/4 each
Building and lot located at 1720 W. Long 17th Street, No. Little Rock Split 1/4 each, after Veva Brant ceases to occupy it in accordance with the contract with her
4 lots in Pinecrest Cemetery 1/3 each to Ruth Jones, Gary Balentine and Larry Balentine
Personal Property Distributed by agreement.
2. We shall equally divide all expenses and debts to be paid from the checking account.
In August 1991, appellant filed a complaint against Gary, individually and as administrator of the estate, Larry, and Inez, in the Pulaski County Chancery Court to rescind the agreement on the grounds of undue influence and appellees’ breach of their confidential and fiduciary relationships with appellant. Later, Gary filed an inventory listing the value of the personal property at $369,616.00 and the real property at $59,500.00 as of the date of the decedent’s death. Gary also filed a petition for authority to reimburse Inez for expenses of the estate which she had paid. These expenses included insurance, utilities, maintenance, and repair bills for the real property. The probate court granted reimbursement to Inez in the amount of $5,415.95 in August 1992.
The cases were consolidated for trial. In her proposed findings of fact, appellant asked the chancery court to grant her oral motion to amend the pleadings to conform to the evidence to include the issues of lack, of consideration; failure to include an interested, non-consenting, and necessary person (appellant’s spouse) in the agreement; and mutual mistake of fact. Appellant also requested that the court find the purported family settlement agreement to be an executory contract requiring consideration. The court upheld the family settlement agreement and found that, pursuant to this agreement, the proper people had received the money and, therefore, the distribution was not grounds for Gary’s removal as administrator. The trial judge stated that, although Gary may not have done everything he should have done to keep the estate’s assets properly maintained, he had relied upon his mother to maintain the estate’s assets. In her conclusions of law, she held that Gary’s actions as administrator did not rise to the level of malfeasance or mismanagement, as required by Ark. Code Ann. § 28-48-105 (1987), to justify his removal.
In her findings of fact and conclusions of law, the chancellor found that, as Otto’s surviving sibling, under the Arkansas law of descent and distribution, appellant would have been legally entitled to an undivided one-half interest in his estate; Otto’s nephews, Larry and Gary, would have been each entitled to an undivided one-fourth interest. As widow of the decedent’s brother, Inez would have been entitled to no interest in the estate.
The chancellor also found that no confidential relationship existed between appellant and appellees. She noted that appellant had not seen appellees for several years before Otto’s death. She also found that appellant had threatened to engage in litigation with her brothers in the past; she had no close relationship with her nephews; and she had only a slightly closer relationship with Inez. The chancellor further found that Gary had no fiduciary duty to appellant at the time the agreement was executed because he had not yet been appointed personal representative of the estate. Additionally, the chancellor found no evidence of undue influence on the part of appellees. She found that appellant was competent, could act for herself, and could protect her own interests in legal transactions. She found that appellant did not appear to be unduly upset and was not so incapacitated by her grief that she was unable to make a rational decision about the agreement. The chancellor found that, although appellees had a better understanding of Otto’s assets, there was no evidence that they made any misrepresentations to appellant and that she was fully informed of the estate’s assets. The chancellor found that Mr. Hatfield had informed appellant and appellees of their legal rights under Arkansas law and advised each of them that they were entitled to have separate counsel before entering into the agreement.
The chancellor also found appellees’ and Mr. Hatfield’s testimony to be truthful. With regard to appellant’s veracity, however, she stated:
17. The Court is not convinced that Ms. Jones is a totally truthful witness and feels she is not an accurate witness. The most that the Court can give her is that Mr. Hatfield said and explained certain things to her which she didn’t catch. Parts of her testimony lead the Court to believe she doesn’t always tell the complete truth on the first ques tion. While not characterizing or trying to brand the Plaintiff as a liar, the Court does not credit all of her testimony and believes she testifies in ways that put a more favorable light on circumstances than an objective viewer would give them. The Court does not see all the situations she described in precisely the same light as she does.
In her conclusions of law, the chancellor expressed the general principle that family settlement agreements are favored in the law and will not be set aside except for very strong and cogent reasons and that only nominal consideration is required to support such agreements.
In her first point on appeal, appellant argues that the agreement is void for lack of consideration; she argues that the rules of law applicable to family settlement agreements do not apply here because this is not a “family” settlement agreement. Appellant argues that, because Inez was not an heir and had no legal interest in Otto’s estate under the Arkansas laws of descent and distribution, Inez was an “outsider” to the estate. Appellant cites 15A CJ.S. Compromise and. Settlement § 9, at 201 (1967), which states: “The doctrine that the settlement of family disputes affords sufficient consideration for a compromise applies only between parties in interest, and will not sustain an agreement between a party in interest and an outsider not to create trouble in the family.” Appellant argues that the Arkansas cases dealing with family settlements uniformly involve agreements among heirs-at-law, widows, devisees, parents, siblings, children, and pretermitted children; she argues that Inez, the widowed sister-in-law of Otto, is not an interested party in his estáte and is, therefore, an “outsider.” According to appellant, Inez’s status as an “outsider” prevents this agreement from being characterized as a family settlement agreement and, therefore, the usual requirement of consideration is necessary.
We note that appellant has cited no Arkansas case which holds that all parties to a family settlement agreement must be legally interested in the decedent’s estate. It is true that most of the cases cited by appellant do involve heirs, spouses, and distributees. However, Pfaff v. Clements, 213 Ark. 852, 213 S.W.2d 356 (1948), and Turner v. Davis, 41 Ark. 270 (1883), lend support to appellees’ position. In Pfaff, the Arkansas Supreme Court quoted Turner v. Davis and reversed the Pulaski County Chancery Court’s decision allowing some of the parties to a family settlement agreement to repudiate that agreement. In 1946, Samuel Ernest Pfaff died intestate survived by a son, Terrence Pfaff; a daughter, Justine Pfaff Petre; and two grandchildren, Carel Heizman Clements and Carl E. Heizman II, who were the only children of Ernestine Pfaff Heizman, a daughter of Samuel Ernest Pfaff who had predeceased her father. Terrence Pfaff was appointed administrator of his father’s estate but died before the administration was complete. He was survived by his wife, Anna Mae Pfaff; his sister, Justine Petre; his niece, Carel Heizman Clements; and his nephew, Carl Heizman II. The estate of Terrence Pfaff apparently consisted, at least in part, of his share of the estate of Samuel Ernest Pfaff. Mrs. Petre, Mrs. Clements, and Carl Heizman signed and delivered to Anna Mae Pfaff an agreement giving the share of Samuel Ernest Pfaff’s estate which Terrence would have received to Anna Mae Pfaff. Later, the sister, niece, and nephew of Terrence decided to repudiate the agreement. Although Anna Mae Pfaff claimed they had a valid family settlement agreement, the chancery court allowed the other parties to repudiate the agreement. On appeal, the supreme court reversed and discussed at length the many Arkansas cases dealing with family settlements. The court rioted that these cases contain a “common refrain” that family settlements are favored and should be encouraged where no fraud or imposition was practiced. 213 Ark. at 855, 213 S.W.2d at 358. The court stated:
A study of our cases, and also those from other jurisdictions, fails to disclose any definition, or any statement listing all of the essential ingredients of a family settlement. Notwithstanding such absence, there are, however, some matters that are clear; and these are sufficient for a decision in the case at bar:
1. It is not necessary that there be a previous dispute or controversy between the members of the family before a valid family settlement may be made. Thus, in Martin v. Martin, [98 Ark. 93, 135 S.W. 348 (1911),] there was no dispute at the time of the conveyance or will in question, yet the agreement was called a “family settlement”; and Mr. Justice FRAUENTHAL, speaking for the court, used this language:
“This was in effect a family settlement of the interests of these members of the family in these two remaining tracts of land which came from these two estates of the family. Courts of equity have uniformly upheld and sustained family arrangements in reference to property where no fraud or imposition was practiced. The motive in such cases is to preserve the peace and harmony of families. The consideration of the transaction and the strict legal rights of the parties are not closely scrutinized in such settlements, but equity is anxious to encourage and enforce them. As is said in the case of Pate v. Johnson, 15 Ark. 275: ‘Amicable and family settlements are to be encouraged,'and when fairly made . .. strong reasons must exist to warrant interference on the part of a court of equity.’ Turner v. Davis, 41 Ark. 270; Mooney v. Rowland, 64 Ark. 19, 40 S.W. 259; LaCotts v. Quertermous, 84 Ark. 610, 107 S.W. 167; Smith v. Smith, 36 Ga. 184, 91 Am. Dec. 761; Smith v. Tanner, 32 S.C. 259, 10 S.E. 1058; Good Fellows v. Campbell, 17 R.I. 402, 22 Atl. 307, 13 L.R.A. 601.”
The case last cited in the above quotation is that of Good Fellows v. Campbell, 17 R.I. 403, 13 L.R.A. 601, wherein there had been no previous dispute, yet a family settlement was upheld; and the opinion contains this pertinent language:
“But there is a class of cases of family arrangements, relating to the settlement of property, in which there is no question of doubtful or disputed rights, and in regard to which a peculiar equity has been administered, in that they have been supported upon grounds which would hardly have been regarded as sufficient if the transaction had occurred between strangers. In these cases the motive of the arrangements was to preserve the honor or peace of families or the family property. When such a motive has appeared, the courts have not closely scrutinized the consideration.
213 Ark. at 855-56, 213 S.W.2d at 358.
With regard to the issue of consideration, the court stated:
(2) Likewise, it is not essential that the strict mutuality of obligation or the strict legal sufficiency of consideration — as required in ordinary contracts — be present in family settlements. It is sufficient that the members of the family want to settle the estate: one person may receive more or less than the law allows; one person may surrender property and receive no quid pro quo. Thus, in Turner v. Davis, 41 Ark. 270, there was claimed that one — Watkins — had no interest in the property sufficient to support a family settlement; but in disposing of that contention, Mr. Justice EAKIN said: “We cannot go behind the agreement to ascertain the interest of Watkins. It is a matter of no consequence whether he had courtesy [sic] or had nothing. . . . The agreement stands on the ground of family settlements,. . . They are supposed to be the result of mutual good will, and imply a disposition to concession for the purpose, regardless of strict legal rights; always excepting cases of fraud, of which nothing, in this case, appears.”
It is true that in some of our cases (a recent such case is Mills v. Alexander, 206 Ark. 754, 177 S.W.2d 406), we have mentioned the “consideration” or benefit received by the person who later sought to question the family settlement; but in each such case the consideration was discussed to demonstrate that there had been no fraud, imposition or overreaching practiced against the complaining party. In the case at bar there is no claim that there has been any such fraud, imposition or overreaching, so the matter of consideration becomes of no consequence in the family settlement here involved.
213 Ark. at 857-58, 213 S.W.2d at 359. See also Harris v. Harris, 236 Ark. 676, 370 S.W.2d 121 (1963), where the appellee unsuccessfully challenged the appellants’ interest in the property as insufficient to support a family settlement agreement.
Additionally, in Jackson v. Smith, 226 Ark. 10, 287 S.W.2d 571 (1956), the supreme court affirmed the Johnson County Chancery Court’s refusal to set aside a family settlement under which the appellant had executed and delivered a deed to the appellees. That lawsuit involved the estate of James Poteet, who died intestate. James Poteet had four sisters, appellants Mrs. Collins, Mrs. Jackson, and two other sisters who had predeceased him, leaving children (appellee Mr. Bernice Smith and appellee Mrs. Luther Norvell). Mrs. Collins and her nephew, Bernice Smith, agreed that Mrs. Collins and Mrs. Jackson would convey to Bernice Smith and Luther Norvell all of their interest in the estate of Mr. Poteet; in return, Mr. Smith and Mr. Norvell would pay all of the debts of the estate. Later, Mrs. Jackson and Mr. Norvell also agreed to this arrangement, and a deed was signed and acknowledged. It should be noted that Mr. Norvell was not a legal heir of the decedent; he was simply a spouse of a living heir. Later, Mrs. Collins and Mrs. Jackson learned the value of the tract of land and sued to set the deed aside. On appeal, they argued that the deed was not within the “family settlement rule.” The court disagreed and stated: “That the deed from Mrs. Collins and Mrs. Jackson to Mr. Smith and Mr. Norvell is within the ‘family settlement rule’ is too clear to admit of doubt. Pfaff v. Clements, 213 Ark. 852, 213 S.W.2d 356, is complete authority for such conclusion.” 226 Ark. at 13, 287 S.W.2d at 573.
We conclude, therefore, that it is not necessary that all parties to a family settlement agreement must have an enforceable legal interest in an estate in order for the agreement to be enforceable as a family settlement agreement which requires little, if any, consideration. Here, Inez was the mother of the decedent’s two nephews, each' of whom was entitled to an undivided one-quarter interest in the estate. Additionally, three of the four parties to this agreement were heirs-at-law of the decedent. The chancellor did not err in concluding that this was a family settlement agreement.
Citing 31 Am. Jur. 2d Executors and Administrators § 67 (1989), appellant also argues that, even if the agreement is a family settlement agreement, it is still invalid because it is an executory contract. Appellant argues that executory family settlement agreements must be supported by consideration. Appellant contends that the cases of Grubbs v. Mattson, 268 Ark. 1144, 599 S.W.2d 148 (Ark. App. 1980), and Trantham v. Trantham, 221 Ark. 177, 252 S.W.2d 401 (1952), support this argument. Both of these cases are distinguishable. There is no reference in either case to the agreement involved therein as a “family settlement agreement.” Additionally, the agreements at issue in those cases were made before the death of the family member whose estate was involved. In the case at bar, the chancellor held that, in Arkansas, even executory family settlement agreements are not subject to the general requirement of consideration. In addition to Pfaff v. Clements, executory family settlement agreements were upheld as valid in the following cases: Isgrig v. Thomas, 219 Ark. 167, 240 S.W.2d 870 (1951); Barnett v. Barnett, 199 Ark. 754, 135 S.W.2d 828 (1940); and Davis v. Davis, 171 Ark. 168, 283 S.W. 360 (1926).
Appellant also argues that the agreement is invalid because appellant’s husband was not a party to it. She asserts that her husband had acquired a curtesy interest, as her spouse, in the real estate controlled by this agreement. Appellant cites 31 Am. Jur. 2d Executors and Administrators § 56 (1989) as authority for this argument:
In the typical case all successors to an estate (including the surviving spouse, if any) are parties to a family settlement, and every successor whose rights may be affected adversely should be made a formal party to it.
If a written settlement makes all successors parties to it, and it is contemplated that all shall sign it, but one does not, the contract is not binding even on those who have signed. But otherwise, whether a particular successor is a necessary party depends upon the circumstances. One is not a necessary party to a settlement which does not impair or affect his rights, and such a settlement is valid as to those who are parties.
At 31 Am. Jur. 2d Executors and Administrators § 60, spouses are addressed: “Where a party to a family settlement agrees to transfer title to real estate, it is necessary that his or her spouse sign the agreement or the subsequent deed, in order to waive dower.” The chancellor did not agree that Mr. Jones’ failure to join in the agreement rendered it invalid. She stated that Mr. Jones’ curtesy was only an inchoate interest and that appellant was free to transfer by deed any interest in real property she owned without his participation. She added, however, that, if appellant were to die within seven years of the transfer, Mr. Jones might have a claim based on his curtesy interest. In Mickle v. Mickle, 253 Ark. 663, 488 S.W.2d 45 (1972), the supreme court said that a widow’s right of dower in real property remains only an inchoate right and is not an estate until her husband’s death; the right of dower is only a contingent expectancy during the lifetime of her husband. Id. at 668, 488 S.W.2d at 48. The chancellor was correct in her determination of this issue.
In her second point on appeal, appellant argues that the chancellor erred in failing to find that the agreement was obtained by undue influence and that appellees had breached their confidential relationship with her. She also argues that Gary breached his fiduciary duty as administrator to her. The chancellor found that Gary and Inez had informed appellant that she would be entitled to one-half of Otto’s estate and that Gary and Larry would receive one-fourth of that estate. She further found that Mr. Hatfield had advised appellant about each of the parties’ rights under the laws of descent and distribution in Arkansas and told each of them that they were entitled to have separate counsel. In finding that no confidential relationship existed between appellant and appellees, the chancellor noted appellant’s lack of a close relationship with them and with her brothers. The chancellor further found that Gary had no fiduciary duty to appellant at the time the agreement was executed because he had not yet been appointed administrator of the estate. She found appellant to be competent, able to protect her own interests, and not so incapacitated by grief over her brother’s death that she was unable to make a rational decision about the agreement. The chancellor also found Mr. Hatfield’s past association with Inez to be insubstantial. She went on to find that she believed appellees and Mr. Hatfield were telling the truth and that she was not convinced that appellant was a totally truthful witness. The evidence more than amply supports these findings.
Ordinarily, the burden is upon one who attacks such a transaction to prove that the donor was unduly influenced. See Burns v. Lucich, 6 Ark. App. 37, 47, 638 S.W.2d 263, 269 (1982). A different burden of proof arises when it is shown that a confidential relationship existed between the donor and a dominant donee. Id. Where special trust or confidence has been shown, the transfer to the dominant party is presumed to be void. Id. Relation ships deemed to be confidential are not limited to those involving legal control; they also arise whenever there is a relation of dependence or confidence, especially confidence which springs from affection on one side and a trust in reciprocal affection on the other. Id. at 48, 638 S.W.2d at 270. In addition to proving the existence of a confidential relationship, a party challenging such a transaction must also show that the donee occupied such a superior position of dominance or advantage as would imply a dominating influence over the donor. Id. at 49, 638 S.W.2d at 270. Each case must be determined on its own facts. Donaldson v. Johnson, 235 Ark. 348, 350-51, 359 S.W.2d 810, 812-13 (1962). Whether undue influence occurred is a question for the trier of fact. Carpenter v. Horace Mann Life Ins. Co., 21 Ark. App. 112, 121-22, 730 S.W.2d 502, 507 (1987).
Although chancery cases are reviewed de novo on the record, this court does not reverse a decree unless the chancellor’s findings are clearly against a preponderance of the evidence. Burns v. Lucich, 6 Ark. App. at 47, 638 S.W.2d at 269. Since this question turns heavily on the credibility of the witnesses, this court defers to the superior position of the chancellor in this regard. Id. The evidence in this case overwhelmingly supports the chancellor’s finding that no confidential relationship existed between appellant and appellees. As in Woods v. Woods, 260 Ark. 789, 795, 543 S.W.2d 952, 955 (1976), appellees’ relationship with appellant was such that “[i]t was highly unlikely that they could unduly influence her actions or that she suddenly had a confidence in them which had not previously existed.” In view of the fact that the chancellor expressly discredited appellant’s testimony, we hold that her findings that appellees had not exercised undue influence and had not breached a confidential relationship are not clearly erroneous. It is also clear that Gary had not yet been appointed administrator of Otto’s estate when the agreement was signed and thus violated no fiduciary duty to appellant in signing it.
In her third point on appeal, appellant argues that the probate judge erred in refusing to remove Gary as the administrator of the estate. Appellant asserts that such removal was required by Ark. Code Ann. § 28-48-105 (1987), which states:
(a)(1) When the personal representative becomes mentally incompetent, disqualified, unsuitable, or incapable of discharging his trust, has mismanaged the estate, has failed to perform any duty imposed by law or by any lawful order of the court, or has ceased to be a resident of the state without filing the authorization of an agent to accept service as provided by § 28-48-101(b)(6), then the court may remove him.
See also Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991); Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985); Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975); Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959). The probate judge found that, although Gary may not have done everything he should have done to keep the estate’s assets properly maintained, he had relied upon his mother’s assistance in maintaining them. She also found that, since the family settlement agreement was upheld, the proper people had received the $85,000.00 disbursements and that this partial distribution should not be grounds for Gary’s removal as administrator. Although probate cases are reviewed de novo on the record, this court will not reverse the findings of the probate judge unless clearly erroneous, giving due deference to the probate judge’s superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. O’Flarity v. O’Flarity, 42 Ark. App. 5, 12, 852 S.W.2d 150, 154 (1993).
In her findings, the chancellor acknowledged that this partial distribution was without court approval as required by statute. She noted, however, that all parties had testified that they were willing and able to restore this cash if the court so ordered and that the right people had received the money. This finding by the chancellor is in line with the frequently applied rule of law that error is no longer presumed to be prejudicial; unless the appellant demonstrates prejudice, this court does not reverse. Jones v. Jones, 43 Ark. App. 7, 13, 858 S.W.2d 130, 134 (1993). The evidence shows that Inez used her own money to maintain the real property of the estate and that, following the denial of the petition to remove him as administrator, Gary requested and received the probate court’s permission to reimburse his mother for these expenses. Although appellant argues that an administrator is not permitted to delegate his responsibilities to other individuals, there is nothing in the probate code which denies the administrator the authority to engage the assistance of others in meeting his responsibilities. Also, no creditors made claims against the money which was distributed.
The decision is affirmed in all respects.
Jennings, C.J., and Mayfield, J., agree. | [
112,
-20,
-36,
92,
-118,
96,
58,
-118,
86,
-61,
117,
83,
-17,
-1,
81,
41,
51,
121,
65,
121,
-45,
-78,
23,
34,
114,
-13,
-87,
-43,
-72,
-3,
-12,
86,
89,
32,
-118,
-59,
-30,
-62,
-51,
20,
-124,
64,
-101,
108,
-39,
-62,
52,
111,
16,
15,
21,
-66,
-73,
47,
53,
65,
76,
44,
121,
-70,
80,
-88,
-85,
-124,
111,
7,
-128,
52,
-104,
-83,
-40,
75,
-104,
49,
-128,
-24,
51,
-90,
-106,
116,
3,
25,
8,
98,
119,
18,
-59,
-17,
-8,
-104,
14,
-4,
-115,
-90,
-13,
88,
80,
108,
-74,
-68,
124,
80,
7,
116,
-20,
5,
31,
108,
-120,
-50,
-42,
-95,
28,
-8,
-100,
3,
-21,
15,
116,
117,
-49,
-14,
125,
67,
117,
-69,
-33,
-77
] |
Special Justice David R. Matthews.
This is a wrongful death medical malpractice case. The appellant, Homer D. Schmidt, contends that the trial court erred in granting the motion for summary judgment of the appellees, Dr. Stanley Browning, Arkansas Anesthesia, P.A., and St. Paul Fire and Marine Insurance Company as insurer of Baptist Medical Center. We disagree as to appellees, Browning and Arkansas Anesthesia, P.A., and affirm as to them. However, the appellant is correct that there were genuine issues of material fact as to appellee, St. Paul Fire and Marine Insurance Company, the property and liability insurer of Baptist Medical Center. Accordingly, we reverse and remand as to St. Paul Fire and Marine Insurance Company.
Homer D. Schmidt brought this action in the circuit court of White County, Arkansas on November 30,1989, as the administrator of the estate of his deceased wife, Betty Schmidt. Appellant alleged medical malpractice on the part of the defendants, Dr. Mark Gibbs, Dr. Stanley Browning, Arkansas'Anesthesia, P.A., and Baptist Medical Center. On March 30,1989, Betty Schmidt was asleep under general anesthesia for a tracheostomy procedure being performed by Dr. Mark Gibbs. While performing the operation, Dr. Gibbs was utilizing a cauterizing machine, referred to as a “bovie.” The bovie machine is a heat producing device used to make an incision in the patient’s trachea. During the operation, a flame of fire approximately six inches in length emanated from the patient’s throat which flame was extinguished by the nurse anesthetist and nurses. The appellant alleged that the injuries Betty Schmidt suffered from the fire were a contributing proximate cause of her subsequent death on April 11, 1989.
Dr. Stanley Browning, though not present at the time, was the anesthesiologist supervising Terry Ray, the nurse anesthetist who actually induced the anesthesia. Both Dr. Browning and Nurse Ray were employees of the Defendant, Arkansas Anesthesia, P.A. The nurses present were employees of Baptist Medical Center and the equipment utilized in the operation procedure was the property of Baptist Medical Center. Baptist Medical Center is insured by St. Paul Fire and Marine Insurance Company. In addition to specific allegations of ordinary negligence against each of the named defendants, the appellant alleged that the defendants were all jointly liable under the doctrine of res ipsa loquitur.
During the discovery process, the appellant named Dr. Mervyn Jeffries as his expert witness on the issues of liability and damages. A discovery deposition of Dr. Jeffries was taken. In that deposition, Dr. Jeffries testified that Dr. Gibbs was negligent. He was asked the following:
Q. Are you in any way critical of the nurses in the care they provided during the tracheostomy procedure?
A. No.
Q. Are you critical of anyone other than Dr. Gibbs with respect to the fire occurring during the tracheostomy?
A. No.
Upon inquiry by counsel for appellees, Browning and Arkansas Anesthesia, P.A., Dr. Jeffries testified that the care and treatment rendered by Dr. Browning, Nurse Ray, and thus, Arkansas Anesthesia, P.A., was not below the standard of care in the community. It is important to note that Dr. Jeffries did not express an opinion on whether the involvement or care and treatment of Betty Schmidt by the nursing team or Baptist Medical Center was within or below the standard of care for the community.
As a result of Dr. Jeffries’ testimony, the appellees, Browning, Arkansas Anesthesia, P.A., and St. Paul Fire and Marine Insurance on behalf of Baptist Medical Center, moved for summary judgment. Dr. Mark Gibbs also moved for summary judgment. The motions for summary judgment of Dr. Browning, Arkansas Anesthesia, P.A., and St. Paul Fire and Marine Insurance were granted. The motion of Dr. Gibbs was denied.
Since the defendant, Dr. Mark Gibbs, remained in the case, the trial court made a finding pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure that directed entry of final judgment as to appellees, Browning, Arkansas Anesthesia, P.A., and St. Paul Fire and Marine Insurance, and specifically found that there was no just cause for delay, making a specific determination that a danger of hardship or injustice would arise should an immediate appeal not be allowed. It is from this judgment that appellant appealed directly to the supreme court pursuant to Rule 29 (o).
Actions for medical injury are governed by the Arkansas Medical Malpractice Act, Ark. Code Ann. §§ 16-114-201 to -209 (1987). Specifically, any plaintiff in an action for medical injury has the burden of proving 1) the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality; 2) that the medical care provider failed to act in accordance with that standard; and 3) that as a proximate result thereof, the injured person suffered injuries which would not have otherwise occurred. Ark. Code Ann. § 16-114-206 (1987). The appellants herein have attempted to meet the requirements of the Arkansas Malpractice Act by means of the expert testimony and affidavits of Dr. Mervyn Jeffries. In addition, appellants have plead and argued that all defendants are liable under the theory of res ipsa loquitur.
The theory of res ipsa loquitur is a rule of evidence that comes into play when:
1. The defendant owes a duty to the plaintiff to use due care;
2. The accident is caused by the thing or instrumentality under the control of the defendant;
3. The accident which caused the injury is one that, in the ordinary course of things would not occur if those having control and management of the instrumentality used proper care;
4. There is an absence of evidence to the contrary. Dollins v. Hartford Accident & Indemnity Co., 252 Ark. 13, 477 S.W.2d 179 (1972); Martin v. Aetna Casualty & Surety Co., 239 Ark. 95, 387 S.W.2d 334 (1965); and Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581, 117 S.W. 564 (1909).
If each of the elements for the application of the doctrine of res ipsa loquitur is present, then “the accident from which the injury results is prima facie evidence of negligence and shifts to the defendant the burden of proving that it was not caused through any lack of care on its part.” Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581, 117 S.W. 564.
The state of Arkansas law on the application of the doctrine of res ipsa loquitur to medical malpractice cases is confusing and unclear. In Routen v. McGee, 208 Ark. 501, 504, 186 S.W.2d 779, 780 (1945), the court stated, “we have very definitely held that the doctrine does not apply to. . .the practice of medicine and surgery. . . .”
Subsequent cases and treatise writers have relied on that statement to reach the conclusion that Arkansas does not recognize the doctrine of res ipsa loquitur as to the practice of medicine or surgery. See Adams v. Heffington, 216 Ark. 534, 226 S.W.2d 352 (1950); Norland v. Washington General Hospital, 461 F.2d 694 (8th Cir. 1972), and comment to AMI Civil 3rd, 1501. However, the court in Routen v. McGee, was relying upon and referring to the case of Brown v. Dark, 196 Ark. 724, 119 S.W.2d 529 (1938). We believe the court in Routen misconstrued our holding in Brown v. Dark. The Brown case does not hold that res ipsa loquitur does not apply in all malpractice cases. Instead, it holds that the doctrine of res ipsa loquitur does not apply under the facts presented in Brown. The alleged malpractice in Brown concerned the setting of a broken arm of a six-year-old boy, which resulted in infection and caused paralysis and rendered the arm useless. Plaintiffs therein attempted to show that the infection occurred as a result of the arm being bound too tightly so as to cut into the flesh and being placed in the cast without protecting the flesh. The court went into great detail in discussing the various treatments offered the young boy. Considerable attention was given to the father’s decision to take the boy home and out of treatment. The court ended its discussion as follows:
Our conclusion is that appellee has failed to support his allegations with substantial evidence. This is a case where a layman took chances and experienced misfortune of a tragic nature. If the doctrine res ipsa loquitur applied, the judgments might be sustained. But, it does not. Medicine and surgery are inexact sciences and physicians are not guarantors of results. Our view is that permanent injuries to appellee’s son were occasioned by appellee’s own negligence or error of judgment in not leaving the patient with Dr. McAdams when it became apparent infection had developed.
The doctrine of res ipsa loquitur did not apply in Brown because of the father’s negligence. Obviously, the fourth essential element of res ipsa loquitur — that there be “an absence of evidence to the contrary” — was missing in the facts in Brown. Thus, the doctrine of res ipsa loquitur could not have applied. The confusion resulting from the misinterpretation of Brown by the Routen court is understandable. Thus, we clearly state here that the doctrine of res ipsa loquitur may apply in cases of medical malpractice on the part of any and all medical care providers as defined by the Medical Malpractice Act if the essential elements for application of the doctrine exist.We have said as much in cases subsequent to Routen v. McGee dealing with hospitals and nurses. See Martin v. Aetna Casualty and Surety Co., 239 Ark. 95, 387 S.W.2d 334; Dollins v. Hartford Accident & Indemnity Co., 252 Ark. 13, 477 S.W.2d 179.
In the instant case, the appellant is not entitled to the application of the doctrine of res ipsa loquitur in respect to appellees Browning and Arkansas Anesthesia, P.A., for. reasons similar to those discussed in Brown. Here, there is “evidence to the contrary” which indicates the use of “proper care” by Dr. Browning and Nurse Ray. The expert witness selected by the appellant has testified in clear and unequivocal terms that the care and treatment offered by Dr. Browning and Nurse Ray was not below the standard of care required. In addition, the appellees’ expert witness, Dr. Robert G. Valentine, corroborates Dr. Jeffries’ opinion that Dr. Browning and Nurse Ray had met the requisite standard of care.
Appellant attempts to maintain the potential liability of Dr. Browning and Nurse Ray by submitting Dr. Jeffries’ affidavits opining that the type of fire which occurred in this case could not happen absent negligence on behalf of someone on the surgical team of Dr. Gibbs, Dr. Browning, Nurse Anesthetist Ray, and the attending nurses. However, this evidence is insufficient to overcome Dr. Jeffries’ testimony that the actions of Dr. Browning and Nurse Ray were not below the standard of care required. This testimony constitutes “evidence to the contrary” thereby preventing the application of the doctrine of res ipsa loquitur. Since there is no direct evidence of negligence either, there are no material issues of fact in dispute. Accordingly, the decision of the trial court to grant summary judgment on behalf of appellees, Dr. Stanley Browning and Arkansas Anesthesia, P.A., is affirmed.
Appellee St. Paul Fire and Marine Insurance Company, insurer for Baptist Medical Center, is not so fortunate. The trial court granted the motion for summary judgment on behalf of St. Paul because it considered the doctrine of res ipsa loquitur inapplicable because “the nurses were not in exclusive control of the procedure.” We disagree. One of the elements necessary for the application of the doctrine of res ipsa loquitur is that “the accident is caused by the thing or instrumentality that is under the control or management of the defendant.” Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581, 117 S.W. 564. The defendant in the case at bar is St. Paul Fire and Marine Insurance Company, insurer for Baptist Medical Center. The operating room, equipment, and nurses were all things or instrumentalities under the control or management of Baptist Medical Center.
We therefore believe that this element of res ipsa loquitur was established. We further believe that the appellant had submitted, through expert testimony, facts which, if believed, would satisfy each of the remaining elements necessary for the application of the doctrine of res ipsa loquitur. The situation of appellee, St. Paul Fire and Marine, is therefore distinguishable from that of the appellees, Browning and Arkansas Anesthesia, P.A. As related above, there was clear and unequivocal testimony that Dr. Browning and Nurse Ray had met the required standard of care. The testimony concerning the care provided by nurses who were employees of Baptist Medical Center is not so clear and unequivocal.
The evidence before the trial court concerning the care provided by the nurses and Baptist Medical Center consisted of the deposition and two affidavits of plaintiffs expert witness, Dr. Mervyn Jeffries. In his deposition, Dr. Jeffries stated that he was not “in any way critical of the nurses in the care they provided during the tracheostomy procedure.” This testimony is not an unequivocal statement that the nurses met the requisite standard of care. In Dr. Jeffries’ affidavits he opines that the type of fire that occurred in this case could not happen absent negligence on the part of someone on the surgical team comprised of Dr. Gibbs, Dr. Browning, Nurse Ray, and the nursing team. If believed, these facts, in our view, would warrant the application of the doctrine of res ipsa loquitur. Thus, there clearly remained an issue of material fact to be litigated. Summary judgment should not be granted where reasonable minds could differ as to the conclusions they could draw from the facts presented. Lee v. Doe, 274 Ark. 467, 626 S.W.2d 353 (1981).
We feel it was improper to grant summary judgment on behalf of St. Paul Fire and Marine Insurance Company as the record stood at the time of the judgment. Therefore, that portion of the case is remanded for further proceedings consistent with this opinion.
Affirmed, in part.
Reversed, in part.
Special Justice Eddie H. Walker joins.
Hays and Brown, JJ., not participating. | [
16,
110,
-47,
-68,
40,
-29,
56,
10,
118,
-31,
-25,
83,
-19,
-7,
-123,
111,
-30,
61,
65,
104,
55,
-77,
19,
98,
-14,
59,
121,
-57,
-80,
75,
-12,
-73,
73,
32,
-126,
85,
98,
10,
-59,
84,
-58,
4,
-23,
-31,
89,
-112,
48,
127,
-48,
7,
49,
-98,
-93,
41,
55,
-57,
109,
58,
-5,
-83,
-63,
49,
-120,
5,
109,
18,
-95,
38,
-104,
33,
-40,
60,
-40,
-79,
16,
-24,
115,
-90,
66,
-12,
103,
-83,
4,
98,
102,
32,
29,
-19,
-32,
-72,
23,
14,
29,
-121,
-102,
105,
-37,
12,
-73,
-99,
114,
94,
-122,
120,
-27,
-36,
78,
44,
-107,
-118,
-108,
-79,
-57,
-28,
-100,
43,
-25,
7,
36,
81,
-35,
-70,
85,
71,
115,
-34,
122,
-76
] |
Per Curiam.
The appellant in this case was sentenced to death for capital murder on June 30, 1990, and received a Rule 36.4 warning at time of sentencing. Counsel for the appellant then moved to withdraw. On July 26,1990, the appellant filed his motion, pro se, within thirty days of sentencing in support of his counsel’s motion to withdraw. He further moved to proceed under Rule 37 and for the appointment of new counsel “to file an appeal for ineffective assistance of counsel.” (Though Rule 36.4 was then in effect he couched his motion in terms of Rule 37.) His reference tp Rule 37 implies a request for a new trial on grounds of ineffective counsel, and we treat it as such. The trial court refused to grant his motion for post conviction relief and appointment of new counsel by order dated July 27,1990, and gave as one reason the fact that the appellant had not made specific allegations of ineffective assistance in his motion.
We denied counsel’s motion to withdraw on March 18,1991, but did not consider the denial of post conviction relief at that time.
Counsel for the appellant have now filed an amended motion to withdraw and cite as authority Mobbs v. State, 303 Ark. 98, 792 S.W.2d 601 (1990). In Mobbs, we said if a convicted defendant makes a timely Rule 36.4 claim, the trial court should forthwith appoint a new attorney to prosecute the post conviction motion in the trial court and the direct appeal as well.
We agree that the Mobbs rationale is persuasive in this case and that new counsel should be appointed to represent the appellant in his direct appeal and with respect to any other proceedings in connection with his claim for post conviction relief. Counsel’s motion to withdraw is granted.
Remanded for further proceedings consistent with this opinion. | [
48,
-22,
76,
-84,
10,
-32,
58,
28,
89,
-61,
103,
-15,
-83,
31,
-64,
123,
-5,
97,
116,
-23,
-43,
-73,
118,
65,
35,
-77,
41,
-105,
-73,
127,
-89,
-65,
78,
98,
-62,
-59,
70,
-54,
-31,
-36,
-118,
1,
-117,
-28,
120,
3,
48,
103,
94,
15,
53,
30,
-77,
-81,
23,
10,
-120,
108,
89,
-83,
88,
49,
-102,
-113,
-17,
20,
-95,
-107,
-72,
-125,
112,
59,
24,
49,
1,
-24,
113,
-74,
-122,
84,
111,
25,
8,
98,
98,
-125,
81,
-17,
-104,
-104,
7,
-98,
-99,
-122,
-39,
25,
73,
-19,
-105,
-3,
115,
20,
6,
-6,
108,
77,
25,
108,
12,
-50,
-12,
-77,
-82,
53,
14,
-53,
-21,
1,
82,
117,
-116,
-26,
92,
71,
58,
-37,
-114,
-16
] |
Tom Glaze Justice.
The Hempstead County Circuit Court, sitting as a jury, found that the appellant destroyed trees on property owned by appellees. The court held the appellant’s acts violated Ark. Code Ann. § 18-60-102 (1987), and under the authority of that statute, it awarded appellees treble damages in the amount of $5,220.00. Appellant appeals the lower court’s decision, contending the court erred in awarding replacement costs of the trees as damages and in trebling the damages awarded.
At trial, the parties offered damage evidence regarding the appellant’s removal of some large pine and oak trees growing on the appellees’ property. Appellees’ expert, over appellant’s objection, was allowed to testify to the replacement costs of those trees (as shade trees), saying that the oaks were worth $200.00 to $700.00 and the pines bore a value of $300.00 to $600.00. Appellant’s expert gave a value of $25.00 per tree based upon the trees’ commercial or area sawmill prices. The parties’ witnesses generally agreed that three to four oaks and three to four pines had been destroyed and removed. The trial court awarded appellees $ 1,500.00 in damages before trebling the amount under § 18-60-102. The court added $720.00 for costs the appellees apparently incurred for removing brush left from the appellant’s bulldozer work in removing the trees. The $720.00 amount is not questioned in this appeal.
In the recent case of Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991), we adopted the rule that where ornamental or shade trees are injured, the use made of the land should be considered, and the owner compensated by the damages representing the cost of replacement of the trees. Here, appellees offered evidence reflecting that they intended to use the property, bearing the oak and pine trees that were removed, as a trailer park, and their expert opined that the trees, as shade trees, were a plausible use for such a park.
The Worthington case did not involve § 18-60-102 — the statute relied on by appellees — but that distinction requires no different result. Section 18-60-102(a) provides that if any person injures or destroys any tree growing or placed for the use of shade or timber on the land of another in which such person has no right or interest, the person so trespassing shall be liable to the injured party for treble the value of the “thing so damaged” with costs. While appellant argues that the only proper damages in this case should be the diminution in value to the property resulting from the damage, we have not read § 18-60-102 so narrowly. In Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979), this court stated that there are two elements of recovery allowable under the statute (then Ark. Stat. Ann. § 50-105 (Rep. 1971)). According to Stoner, a party can recover either the value of the trees or the damage to the market value of the land, i.e., diminution in value. See also Laser v. Jones, 116 Ark. 206, 172 S.W. 1024 (1915). Further, this court has also stated that, when considering damages under the statute, it is proper to consider any use to which the damaged property may be adapted. See Floyd v. Richmond, 211 Ark. 177, 199 S.W.2d 754 (1947); Laser, 116 Ark. 206, 172 S.W.2d 1024. Consistent with our understanding of the law and the facts in this case, we believe the trial court was clearly correct in awarding replacement costs for the trees destroyed by the appellant.
Appellant next questions the treble damages awarded by the trial court. Although § 18-60-102(a) provides for treble damages, appellant directs our attention to § 18-60-102(c) which, in essence, provides that if the defendant (appellant here) had probable cause to believe the land on which the trespass occurred was his own, then the plaintiff (appellees) shall recover single damages only. In construing this statutory language, we have said that our cases make clear that a necessary element to justify treble damages is intent of wrongdoing, though such intent may be inferred from the carelessness, recklessness, or negligence of the offending party. Calloway v. Perdue, 238 Ark. 652, 385 S.W.2d 4 (1964).
In considering appellant’s intent as it bears upon appellees’ entitlement to treble damages, we review the evidence and all reasonable inferences therefrom in the light most favorable to the appellees and reverse only if the trial judge’s decision is clearly erroneous. Sipes v. Munro, 287 Ark. 244, 697 S.W.2d 905 (1985). In doing so, the record reflects that the appellant hired a bulldozer owner to clear appellant’s land. During his clearing the land, the owner of the bulldozer, Weldon McDowell, realized that, in following appellant’s directions, he was going to cross appellees’ property line, so he asked appellant to consult appellees concerning the exact line location. When appellant discussed the matter with appellees, appellees told appellant that he was “getting over on [appellees’] property,” and asked him if he would wait two or three days so a survey could be taken to resolve any questions. Appellant declined, saying he spent all of the money on surveys and clearing that he was going to spend. Although appellant apparently had obtained an earlier survey of this property, he never referred to it before instructing McDowell to continue with the work.
In sum, appellees and McDowell had informed appellant that, if McDowell continued to clear the brush and trees as appellant directed, McDowell would be working on appellees’ property. Confronted with this information and warnings, appellant still had McDowell complete the work as instructed. On these facts, the trial court, in trebling damages, found the appellant had been fully apprised of the property line claim of appellees before the damages were incurred, yet he proceeded to have his bulldozer operator cross the line to clear property anyway. We are unable to say the trial court was clearly erroneous.
We affirm.
There was some evidence that the appellees purchased the property with the trees for $150.00 and the property after the trees’ removal was worth $600.00. In other words, appellant claims the appellees’ market value of the property has actually increased and appellees bore no loss from the appellant’s actions. | [
-16,
111,
-11,
-68,
13,
-29,
122,
24,
91,
-93,
-73,
87,
-17,
-85,
93,
41,
-94,
93,
113,
104,
-57,
-93,
3,
-93,
-110,
-69,
115,
69,
57,
77,
-27,
-43,
66,
80,
-54,
-43,
4,
-128,
-51,
88,
-50,
-122,
-119,
69,
-39,
98,
52,
-85,
64,
3,
48,
-81,
-70,
45,
16,
-61,
106,
44,
-55,
41,
81,
-71,
-94,
13,
-101,
31,
33,
-89,
-100,
3,
-56,
42,
-112,
53,
0,
-24,
115,
-80,
-122,
100,
5,
-103,
13,
32,
-26,
20,
29,
-57,
-56,
-120,
38,
52,
-115,
-90,
-46,
24,
91,
75,
-82,
20,
124,
6,
20,
-2,
-13,
-51,
25,
108,
-121,
-114,
-44,
-75,
-83,
-128,
-100,
51,
-17,
-93,
51,
101,
-49,
-30,
93,
70,
50,
-101,
15,
-9
] |
Tom Glaze, Justice.
This is an illegal exaction case brought by Fred Dudley, a taxpayer and resident of Little River County, against the former and current county judges of Little River County and the quorum court. Hoye Horne served as the county judge from 1975 to 1988, and Clyde Wright serves now. In his complaint, Dudley, appellant, made the following charges against the county judges: 1) free gravel was provided to certain citizens of Little Rock County using county owned trucks and county employees; 2) the county charged less than the fair market value for gravel it sold to individuals; 3) gravel was illegally sold on credit; and 4) free grave-digging services were provided for private funeral homes for burials of county citizens using county employees and equipment. Appellant requested an injunction to prohibit any further illegal use of county property, labor and services. Further, the appellant asked that the county judges he held personally liable to the county for the fair market value of all property and services misappropriated plus punitive damages and attorney’s fees.
The chancellor found that neither Horne nor Wright gave away county-owned gravel to private interests. But, the chancellor found that the county improperly sold gravel without following the procedures set forth in Ark. Code Ann. § 14-16-105 (1987). The chancellor prohibited County Judge Wright from making any further gravel sales without fully complying with § 14-16-105. The chancellor found there were no damages because the county judges had sold the gravel for its fair market price. In addition, the chancellor found that the county judges improperly sold gravel on credit and enjoined County Judge" Wright from making any further gravel sales on credit. As to the grave-digging, the chancellor found that the quorum court knew about the grave-digging services, and thus the county judges acted in good faith and were in substantial compliance with Ark. Code Ann. § 14-14-802 (1987). Because no damages were awarded, the chancellor denied the appellant’s request for attorney’s fees.
The appellant appeals from these rulings, and specifically argues that the chancellor erred in failing to award damages. We partially agree, and therefore affirm in part and reverse and remand in part.
First, we affirm the chancellor’s finding that the county judges did not give away free gravel to private interests. The evidence showed that the county provided gravel and did road work on all county roads, bus and mail routes. In addition, the county put in culverts to drain water off the county roads. But, the appellant alleged that the county also provided free gravel and road work to individuals for private roads and driveways. The appellant’s main witness against the county on this issue was a former county employee, James Johnson. Johnson prepared a list of 86 private individuals who received gravel from the county, however, on cross-examination, Johnson admitted that some of these may have been on county roads, bus or mail routes and most importantly, that he did not know if anyone was billed for the gravel. Further, he admitted that it was the county’s practice to spread excess gravel into the adjoining drives rather than load it back into the truck. The chancellor expressly questioned the credibility of Johnson, because Johnson had been fired by the county judges twice, once for drinking and once for lying.
While Donny Waldron, a taxpayer, testified that he personally saw gravel at each of the locations indicated by Johnson, he also was unable to say whether anyone was billed for the gravel or if the locations were on county roads, mail or bus routes. Both county judges Wright and Horne denied giving gravel away free and attributed the names on the appellant’s lists to being either county roads, bus routes, mail routes, excess gravel already unloaded at the site and left over from a county job, or culverts dug on private property to protect county roads from water damage.
We do not set aside a chancellor’s findings of fact unless they are clearly against the preponderence of the evidence. ARCP Rule 52(a). And, we give due regard to the chancellor’s opportunity to judge the credibility of the witnesses. From reviewing the testimony briefly set out above, we cannot say that the chancellor’s finding was clearly against the preponderance of the evidence. Even if we were to accept Johnson’s list as credible, he was unable to say that the gravel was given away to individuals.
We also affirm the chancellor’s finding that no damages resulted from the county judges’ sales of gravel. The proper procedure for a county to follow when selling any real estate or personal property is set out in Ark. Code Ann. § 14-16-105 (Supp. 1989). Under this provision, the county judge is required to enter an order in the county court describing the commodity to be sold, giving the reason for sale, and directing the county assessor to have such commodity appraised at its fair market value. The property is not to be sold for less than three-fourths of the appraised value. While the chancellor found that the county judges sold gravel without complying with § 14-16-105, he awarded no damages. Instead, he enjoined County Judge Wright from making any further gravel sales without complying with the statute.
To support his claim for damages, the appellant introduced evidence from Bobby Smith. Smith is in the sand and gravel business in Howard County. He testified that the price of gravel was based on the cost of gravel at the pit. Based on this figure, Smith testified that the fair market value of gravel was $1.50 a yard loaded and $6.00 a yard delivered. While Smith testified that gravel cost 350 a yard in Howard County, he did not know the price of gravel at the pit in Little River County. Further, Smith admitted that the gravel he sold in Howard County was a better quality than a red clay gravel used by Little River County. Former County Judge Horne testified that until 1987, the county paid 200-250 a yard for gravel, and thereafter Weyerhaeuser gave gravel to the county free of charge. Horne testified the cost of a yard of gravel loaded was 500 and, the cost of a yard of gravel delivered was $2.00. The county charged 500 per yard for gravel loaded onto individual trucks and $2.00 per yard if delivered by the county to the individual.
The chancellor found that the county neither lost nor made money from the gravel sales. Again, we believe the appellant’s proof falls short of showing that the chancellor’s finding is clearly erroneous. The appellant failed to put on evidence to prove that the fair market value for Little River County gravel was more than 500 per yard loaded and $2.00 per yard delivered.
Next, we address appellant’s argument that the chancellor erred in failing to award damages for the illegal extension of credit by the county judges. A county cannot lend its credit for any purpose. Ark. Const. art. 16, § 1. The 1987 audit of Little River County revealed that the county sold gravel on credit. The Legislative Audit Administrator testified that as of August 16, 1988, there was a balance due the county of $2,930.50 from the gravel sales on credit. The audit report recommended that the prosecuting attorney in connection with the county judge collect all unpaid amounts due. County Judge Horne sent out letters on August 2, 1988, requesting payment from individuals who had received gravel. Horne testified that every effort had been made to collect the outstanding debt and that a list of people and the amount owed had been turned over to the prosecuting attorney. He stated that he did not know if any lawsuits had been filed.
We disagree with the chancellor that the taxpayers are not entitled to damages on this issue. Here, the above evidence shows that the county judges improperly extended credit and because of this extension of credit, the county government has uncollected money due on past sales. While we believe that the taxpayers are entitled to recover the amount of money still owed to the county by the extension of credit, we conclude that the record is unclear as to the amount still left outstanding. For example, the prosecuting attorney may have collected some of this amount. Because the record is unclear as to the amount of money still unpaid, if any, we remand the case back to the chancellor for a hearing to determine the amount. See Hall v. Staha, 303 Ark. 673, 800 S.W.2d 396 (1990).
Further, we disagree with the chancellor’s finding that the Little River County Quorum Court knew of the county’s free grave-digging services, and therefore the county judges were in substantial compliance with Ark. Code Ann. § 14-14-802 (1987). Under this statutory provisions, a county government, acting through a quorum court, may provide through an ordinance for the establishment of any service or performance of any function not expressly prohibited by the Arkansas Constitution or by law. One of the services listed in cemetery, burial and memorial services. Ark. Code Ann. § 14-14-802(b)(2)(C)(ii).
It is undisputed that no ordinance existed authorizing the county judges to provide grave-digging services. The parties stipulated that 684 graves were dug between 1983 and 1988. County Judge Horne testified that the quorum court was aware of and approved of the grave-digging services. Besides Horne’s testimony, we see no indication from the record that the quorum court knew of the grave-digging services. Nonetheless, if the quorum court had known of the grave-digging services, it took no action by ordinance or otherwise to authorize such services; therefore the providing of these services was invalid under §14-14-802. Appellant offered testimony by a funeral home employee to establish the cost of digging a grave at $80.00 to $105.00. County Judge Horne testified that it cost the county only $8.00 to dig a grave. We usually decide chancery cases de novo. However, because we already must remand the case regarding the damages, if any, for the unlawful extension of credit issue involving the sales of gravel, we direct the chancellor to determine at the same time the proper amount of damages to be awarded the taxpayers for the grave-digging services.
Finally, we briefly address two additional arguments that will recur on remand. First, the parties presented the question to the chancellor below as to whether the five-year or three-year statute of limitations applies, but because no damages were awarded, the chancellor did not rule on the issue. Because damages will be awarded on remand, we must address that issue.
The parties apparently agree that the three-year statute of limitations should apply unless there has been intentional fraud, corruption, or willful diversion in the payment of money — then the five-year statute of limitations applies. See Munson v. Abott, 269 Ark. 441, 602 S.W.2d 649 (1980). From the record before us, the appellant has not shown intentional fraud, corruption or willful diversion in the providing of these services. We believe the record clearly shows that the judges thought they were providing a needed service to the community. Apparently, the practice of providing such services was widely known in the county, and while appellees could have lawfully performed these services by complying with § 14-14-802, they failed to do so. Although appellees’ actions failed to meet the dictatees of § 14-14-802, such failure falls short of showing they acted fraudulently in providing the grave-digging services. Accordingly, the chancellor should apply the three-year statue of limitations when deciding damages on remand.
Second, the parties’ briefs touch on the lower court’s failure to award attorney’s fees to the appellant, but they seem to agree that issue became moot when the chancellor awarded no damages. See City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986). Since damages will now be awarded, the chancellor can consider appellant’s request for attorney’s fees.
For the reasons stated above, we affirm in part and reverse and remand in part. | [
116,
-20,
-15,
28,
9,
96,
58,
10,
83,
-95,
101,
83,
-17,
-50,
0,
123,
-93,
-69,
117,
105,
-61,
-74,
115,
99,
-94,
-13,
-23,
-57,
-70,
109,
-28,
-124,
77,
112,
-54,
-43,
-57,
98,
-59,
88,
70,
10,
10,
93,
-39,
71,
60,
-81,
80,
11,
117,
-82,
-6,
45,
21,
75,
105,
44,
89,
45,
89,
-109,
-70,
-115,
93,
21,
1,
-122,
-104,
-123,
-40,
106,
-104,
49,
0,
-8,
115,
-94,
-122,
116,
79,
-103,
13,
-22,
98,
3,
12,
-49,
-96,
-24,
15,
-66,
-99,
-89,
-102,
120,
98,
75,
-66,
-107,
126,
-46,
78,
-2,
-26,
5,
91,
44,
-127,
-50,
-16,
-127,
-115,
48,
-98,
66,
-21,
-125,
54,
113,
-49,
-30,
85,
71,
19,
-101,
-122,
-75
] |
Robert H. Dudley, Justice.
Appellant Gilbert Leroy Lemon employed Ike Allen Laws, Jr. as his attorney to represent him in a divorce action. Subsequently, Lemon, the client, sued Laws, the attorney, for legal malpractice. The attorney filed an answer denying negligence and counterclaimed for attorney’s fees. The case came to trial but, just before the jury was empaneled, the client moved to dismiss his complaint. The trial court granted the motion without prejudice. The attorney proceeded to trial on his counterclaim and obtained a judgment for his fees.
The client subsequently refiled his complaint against the attorney. The attorney filed a motion to dismiss on the grounds that the client’s cause of action was barred by the doctrine of res judicata and by ARCP Rule 13. The trial court granted the attorney’s motion to dismiss. We reverse and hold that the client is entitled to refile his complaint after having once voluntarily dismissed it.
The plaintiff-client dismissed his complaint. ARCP Rule 41(a) provides that:
Subject to the provisions of Rule 23(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court, provided, however, that such dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice. In any case where a set-off or counterclaim has been previously presented, the defendant shall have the right of proceeding to trial on his claim although the plaintiff may have dismissed his action. [Emphasis added.]
The right to voluntarily dismiss an action in civil cases has existed in Arkansas law since the enactment of Arkansas’ original civil code. The section of the civil code corresponding to Rule 41(a) was last codified as Ark. Stat. Ann. § 27-1405 (superseded). This statutory provision on voluntary dismissal, as amended in 1971, is the basis of the rule. Cases construing Rule 41 (a) have interpreted it the same way the superseded statute was interpreted. D. Newbern, Arkansas Civil Prac. & Proc., §§ 22-1 and 22-2 (1985 and Supp. 1989).
The right to take a voluntary nonsuit before the final submission is absolute. Brown v. St. Paul Mercury Ins. Co., 300 Ark. 241, 778 S.W.2d 610 (1989). This absolute right belongs to the plaintiff. Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962). A plaintiffs first dismissal is without prejudice. Moss Tie v. Miller, 169 Ark. 657, 276 S.W. 586 (1925); D. Newbern, supra, at §§ 22-2 and 22-3. A claim dismissal without prejudice is not barred and may be filed a second time. Benedict v. Arbor Acres Farm, Inc., 265 Ark. 574, 579 S.W.2d 605 (1979). This is so because a dismissal without prejudice is not an adjudication on the merits. Id.
In the case at bar, the appellant-client exercised his absolute right as a plaintiff to voluntarily dismiss his claim against the attorney. That dismissal was without prejudice and was not an adjudication on the merits. The doctrine of res judicata bars relitigation when a claim or cause of action could have been litigated in a prior lawsuit but was not. Swofford v. Stafford, 295 Ark. 433, 434, 748 S.W.2d 660, 661 (1988). If we applied the doctrine to a plaintiffs voluntary dismissal under Rule41(a),we would be changing the absolute right to a qualified right. We would be creating two types of first-time nonsuits: those that could and those that could not be refilled. Therefore, we hold that the doctrine does not bar a plaintiff refiling a claim after he has exercised his right to one voluntary dismissal under ARCP Rule 41(a).
Rule 41(a) provides a right for defendants as well as one for plaintiffs. A defendant has the right to pursue his counterclaim even though the plaintiff has dismissed his original claim. A claim voluntarily dismissed is of no further effect. Dillon v. Hawkins, 147 Ark. 1, 227 S.W. 758 (1921). Thus, voluntary dismissal of the plaintiffs original claim does not affect, but leaves for adjudication, the defendant’s counterclaim. Dorsey v. Dorsey, 226 Ark. 192, 289 S.W.2d 190 (1956); see also D. Newbern, supra, at § 22-4.
The attorney and the trial court relied upon cases in which this court and the Arkansas Court of Appeals have held that considerations of res judicata bar a defendant who voluntarily dismisses a compulsory counterclaim from subsequently refiling it as a claim. See ARCP Rule 13; Shrieves v. Yarbrough, 220 Ark. 256, 247 S.W.2d 193 (1952) and Golden Host Westchase, Inc. v. First Serv. Corp., 29 Ark. App. 107, 778 S.W.2d 633 (1989). However, in the case at bar, the plaintiff-client did not dismiss a compulsory counterclaim; rather, he dismissed his original complaint, which he had an absolute right to do under ARCP Rule 41(a).
In summation, we hold that after a compulsory counterclaim has been filed, a plaintiff may once voluntarily dismiss his complaint without prejudice to refile it within one year. Accord Leon v. Noble, 234 S.W.2d 454 (Tex. App. 1950); contra Quelette v. Whittemore, 627 S.W.2d 681 (Tenn. App. 1981).
Reversed and remanded.
Hays, J., dissents.
Corbin and Brown, JJ., not participating. | [
-14,
-24,
-84,
76,
72,
96,
50,
-68,
83,
3,
39,
-45,
-17,
3,
12,
125,
-30,
105,
85,
121,
-60,
-90,
15,
64,
-46,
-109,
-48,
-57,
-67,
-17,
-25,
-1,
-52,
120,
-22,
-107,
69,
72,
-59,
24,
70,
8,
-117,
108,
-7,
-59,
48,
59,
64,
11,
69,
-66,
-21,
-81,
59,
-53,
76,
44,
29,
-67,
64,
24,
-102,
13,
127,
17,
49,
37,
-34,
67,
112,
104,
-128,
49,
3,
-84,
114,
-74,
2,
20,
99,
-103,
8,
102,
113,
34,
-111,
-21,
-104,
-88,
7,
61,
29,
-90,
-39,
77,
75,
9,
-74,
-67,
11,
24,
-89,
-6,
120,
-35,
29,
44,
2,
-50,
-48,
-77,
-113,
54,
-106,
11,
-21,
-107,
52,
69,
-113,
112,
92,
71,
27,
-101,
94,
-124
] |
David Newbern, Justice.
This is a wrongful discharge from employment case. The appellant, Crain Industries, Inc., employed the appellees, Kenneth Cass, Lois Marion, Mary Sherman, Victor Knauls, William Keith, and David Haywood. Due to a reduction in the work force at Crain Industries, those employees were laid off, although they were senior in length of service to some others in their respective departments who were not laid off. The employees claimed breach of contract on the basis of a provision in the Crain Industries employment handbook which provided:
In the event it should become necessary to reduce the number of employees in the work force, employees will be laid off on a seniority basis by department. The last employee hired would be the first to be laid off. This policy will be adhered to with one possible exception; that is, under circumstances where the efficiency of a department would be impaired by the loss of some particular employee’s skill.
It is not argued that any of these employees were laid off because of the need to retain a “particular employee’s skill.” Crain Industries’ main argument is that the employees were “at will” employees, and the language of the handbook quoted above was “precatory” and insufficient to form the basis of a holding that Crain Industries had contracted not to lay off the employees except in accordance with the handbook. We affirm the judgment based on a jury’s finding that Crain contracted to conduct the layoff in accordance with the provisions of the handbook. Crain raises additional points in which we find no merit, and we will state additional facts as needed to dispose of them.
1. Handbook as contract
As to how the handbook came into existence, Kenneth Cass testified as follows:
A. Well, they were trying to form a union, out there at Crain, because of them recently firing a supervisor, and Mr. Crain called a meeting. I think it was the day or the day before we were to take a vote. And he said that we didn’t need a union, that if we would vote no to the union, he would come out with a policy that would — guidelines for the employees and the supervisors and Crain Industry, you know.
Q. And was the union voted in or voted out?
A. They were voted out.
Q. And subsequent to that, was the policy manual adopted?
A. Yes.
Cass went on to testify that he was aware of the seniority provisions in the handbook and that the seniority concept was important to him as he remained with the company. Marion, Sherman, Knauls, Keith, and Haywood, also testified of their awareness of the provisions and their expectations that Crain Industries would follow them. The testimony was submitted to the jury which was instructed to find in favor of the employees if the jury found express provisions in the handbook constituting an express agreement. The jury found the express provision an agreement. The Trial Court entered judgment based on that finding.
Generally, the law of this State is that an employer or an employee may terminate an employment relationship at will. In Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984), we recognized that this common law rule was changing in other states which were softening it by finding express or implied agreements for a specified period of employment or by holding that an employer could not discharge an employee arbitrarily or in bad faith. The Jackson case was presented to this Court on appeal of a summary judgment in favor of the employer. We remanded so that facts could be developed with respect to the existence and meaning of an employee handbook which Jackson claimed to constitute a contract of employment. We wrote that we would “be in a position to fully consider that trend only after the facts in [the] case [had] been definitely determined.” See also Gaulden v. Emerson Electric Co., 284 Ark. 149, 680 S.W.2d 92 (1984); Griffen v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982).
In Gladden v. Arkansas Children’s Hospital, 292 Ark. 130, 728 S.W.2d 501 (1987), we dealt with the cases of two employees, each of whom contended she could not be fired by her employer without cause. Each claim was based on statements of the employer made in employment regulations or an employee handbook. We reviewed our cases to date and stated the extent to which we meant to revise the employment at will doctrine. We held the statements in the handbook and regulations were not sufficiently specific to be binding, and thus we sustained the judgments in favor of the two employers. In discussing our willingness to reconsider the employment at will doctrine, we wrote:
We do . . . believe that a modification of the at will rule is appropriate in two respects; where an employee relies upon a personnel manual that contains an express provision against termination except for cause he may not be arbitrarily discharged in violation of such a provision. Moreover, we reject as outmoded and untenable the premise announced in St. Louis Iron Mt. Ry. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897), that the at will rule applies even where the employment agreement contains a provision that the employee will not be discharged except for cause, unless it is for a definite term. With those two modifications we reaffirm the at will doctrine. [292 Ark. at 136, 728 S.W.2d at 505]
We thus reaffirmed the employment at will doctrine except where there is an agreement that the employment is for a specified time, in which case firing may be only for cause, or where an employer’s employment manual contains an express provision stating that the employee will only be dismissed for cause and that provision is relied on by the employee.
In Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 684 (1991), we were asked, and we declined, to hold this language in an employer’s handbook created an enforceable promise to discharge only for cause: “We believe in working and thinking and planning to provide a stable and growing business, to give such service to our customers that we may provide maximum job security for our employees.” We held that it did not rise to the level of an “express provision” as the Gladden case ruling required.
In the case now before us, there is no contention that the employees were hired for a specified time. The question is thus whether the exception to the employment at will doctrine for a contract arising from a promise made in the handbook, applied. Crain Industries argues that there was no express provision. By comparison with the one we reviewed in the Smith case, the provision here is a model of clarity and definiteness. There is no doubt as to its meaning, but the question remains whether it is to be enforced.
Although the handbook in this case did not contain the provision on firing only for cause, the employees contend with respect to the Gladden case, “it is clear that the court envisioned a modification of the at-will doctrine in any case in which there was an express provision in the employee handbook governing the procedure at the time of termination.”
The trial court did not err in presenting the matter to the jury. In the Gladden appeal, where we held for the employers because we could find no specific provision in the employment regulations or manual requiring dismissal to be for cause only, one of the appellants cited Wagner v. Sperry Univac, 458 F.Supp. 505 (E.D. Pa. 1978). We distinguished the case and stated, “In Wagner, a reduction in force was to be governed by seniority in determining who would be laid-off and Wagner’s discharge violated that provision.” While the holding in the Gladden case is hardly a direct adoption of the Wagner decision, we did imply that if there were such a provision in an employment manual it would be enforceable, and that is entirely consistent with our explanation that an exception to the employment at will doctrine may arise from reliance on a promise made in an employment handbook.
The Trial Court was correct in assuming, after studying the Gladden decision, that this Court would not hold that clear language constituting a promise not to dismiss other than for cause would be upheld but clear language constituting a promise not to dismiss in a lay-off except by departmental seniority would not be upheld.
Cases dealing specifically with handbook provisions .are collected in Comment, Unilateral Modification of Employment Handbooks: Further Encroachments on the Employment-at-Will Doctrine, 139 Penn. L. Rev. 197 (1990). The author points out that unilateral contract analysis is common in handbook cases and quotes the following, omitting citations, from Small v. Springs Indus., Inc., 292 S.C. 481, 357 S.E.2d 452, 454 (1987).
[There are] “strong equitable and social policy reasons militating against allowing employers to promulgate for their employees potentially misleading personnel manuals while reserving the right to deviate from them at their own caprice.” . . . It is patently unjust to allow an employer to couch a handbook, bulletin, or other similar material in mandatory terms and then allow him to ignore these very policies as “a gratuitous, non-binding statement of general policy” whenever it works to his disadvantage. Assuredly, the employer would view these policies differently if it were the employee who failed to follow them. ... If company policies are not worth the paper on which they are printed, then it would be better not to mislead employees by distributing them.
In Pine River State Bank v. Mettille, 333 N.W. 2d 622 (Minn. 1983), the Minnesota Supreme Court was apparently confronted with arguments to the effect that provisions in an employment handbook relating to disciplinary action against an employee were unenforceable. A bank employee was fired summarily, allegedly for cause, and the bank president did not follow the discharge or disciplinary procedures in the handbook. The employee brought an action based on contract and prevailed. The first two issues, as stated by the Court, were as follows: “(1) Can a personnel handbook, distributed after employment begins, become part of an employee’s contract? (2) If so, are job security provisions in the handbook enforceable when the contract is of indefinite duration?”
Answering the first question in the affirmative, the Court wrote:
If the handbook language [is sufficiently definite to constitute] an offer, and the offer has been communicated by dissemination of the handbook to the employee, the next question is whether there has been an acceptance of the offer and consideration furnished for its enforceability. In the case of unilateral contracts for employment, where an at-will employee retains employment with knowledge of new or changed conditions, the new or changed conditions may become a contractual obligation. In this manner, an original employment contract may be modified or replaced by a subsequent unilateral contract. The employee’s retention of employment constitutes acceptance of the offer of a unilateral contract; by continuing to stay on the job, although free to leave, the employee supplies the necessary consideration for the offer. [Footnotes omitted.]
In answer to the second question, also in the affirmative, the Court wrote:
The argument is that a provision for job security in a contract of indefinite duration, whether initially promised or subsequently added, is not binding without additional, independent considerations other than services to be performed.
Handbook provisions relating to such matters as bonuses, severance pay and commission rates are enforced without the need for additional, new consideration beyond the services to be performed. See DeGuiseppe, The Effect of the Employment-at-will Rule on Employee Rights to Job Security and Fringe Benefits, 10 Fordham Urban L.J. 1 (1981). We see no reason why the same may not be true for job security provisions. Accord Note, Protecting At Will Employees,. . . 93 Harv. L. Rev. at 1819-20 (employee’s continued labor despite freedom to resign is ample consideration for all express or implied promises, including those relating to job security). Thus, the consideration here for the job security provision is Mettille’s continued performance despite his freedom to leave. See, e.g., Carter v. Kaskaskia Community Action Agency, 24 Ill. App. 3d 1056, 1059, 322 N.E.2d 574, 576 (1974). As such, the job security provisions are enforceable.
The Minnesota Supreme Court’s opinion on these issues concludes as follows:
Not every utterance of an employer is binding. It remains true that “the employer’s prerogative to make independent, good faith judgments about employees is important in our free enterprise system.” Blades, Employment at Will v. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 61 Colum. L. Rev. 1404, 1428 (1967). Properly applied, we think that the unilateral contract modification analysis appropriately accommodates the interests of the employee and the employer.
The reference to “not every utterance” is apparently to an earlier discussion in the Court’s opinion about the sort of vague assurances of “permanency” in employment to which an employer cannot be held, and the sort of vague references we encountered in Smith v. American Greetings Corp., supra.
The essence of the Minnesota Supreme Court’s opinion is like that found in the Pennsylvania Law Review article referred to and quoted above; when an employer makes definite statements about what its conduct will be, an employee has a contractual right to expect the employer to perform as promised. Given our statement in the Gladden case that we would regard a specific handbook promise not to discharge except for cause, and given the contract rationale spelled out by these authorities for handbook promises generally, we conclude it was not error to instruct the jury as was done in this case.
2. Disclaimer
During the time the employees worked for Crain, the handbook or manual was changed to include this statement:
The above policies have been explained to me and I have been given a copy of the Company Handbook. I understand that the Company Handbook is not a contract of employment and we reserve the right to change it at any time.
The statement appears on a page of the handbook containing a checklist of information to be given a new employee with a place for his or her signature at the bottom and a notation that the form should be placed in the employee’s personnel file. Crain argues that it was free to change the handbook by adding the disclaimer. The employees testified they were not aware of the change. Crain did not produce evidence that any of them had signed any such checklist.
Crain cites cases in which it has been held that similar disclaimers were effective. See, e.g., Eldridge v. Evangelical Lutheran Good Samaritan Soc., 417 N.W.2d 797 (N.D. 1987); Castiglione v. Johns Hopkins Hosp., 69 Md.App. 325, 517 A.2d 786 (1986). In each of them it was evident that the employee in question was aware of the disclaimer. While we might agree that an employer may change the terms pursuant to which its employees remain employed by it, we conclude that if such a change is to be effective it must be communicated to the employee.
Generally a contract cannot be modified unilaterally, Leonard v. Downing, 246 Ark. 397, 438 S.W.2d 327 (1969); Scottish Union and Nat. Ins. Co. v. Wilson, 183 Ark. 860, 39 S.W.2d 303 (1931). The pros and cons of permitting an employer to modify a handbook in such a manner as to affect the contractual rights of employees absent additional consideration given to the employees are discussed in the Pennsylvania Law Review note referred to above. We reserve judgment on the question whether, and under what conditions an employer may effectively modify a handbook with notice to affected employees. We find no error in allowing the jury to conclude here that there was no effective modification with respect to these employees.
3. Legal opinions of witnesses
The trial court granted a motion in limine by the employees stating witnesses would not be permitted to give their opinion whether the handbook constituted a contract. Crain Industries contends it was error to grant the motion because it prohibited Crain’s witnesses from testifying as to Crain’s intent in issuing the handbook.
The short answer to the argument is that, even if granting the motion had been error, it was not prejudicial because there was such testimony before the jury. Richard Ries, Vice President of Crain Industries, Secretary of the Corporation, a Member of the Board of Directors, and a lawyer, testified, “It has always been our position that this handbook represented the policies of the company, but that it wasn’t a contractual commitment by the company.”
4. Instructions
The trial court gave an instruction to the jury regarding the elements of a contract. It included a statement that there must be a “manifestation of mutual assent to the terms and conditions of the contract.” Crain Industries sought to have added, “There can be no contract if only one party intends to be bound.” The trial court refused. Crain cites no authority supporting its contention that the trial court should have added those words.
The trial court gave a correct instruction requiring the jury to find “a manifestation of mutual assent to the terms and conditions of the contract.” The problem here is caused by an added reference by the trial court to “meeting of the minds.” Crain Industries seems to argue that in order to find a contract, the jury would have to have found a subjective intent on the part of the corporation to be bound by the terms of the handbook.
The battle between those who argued for the “subjective theory” and those who argued for the “objective theory” of contract has long since been won by the objectivists. See A. Farnsworth, Contracts, § 3.6 (1982). As Professor Farnsworth points out, “Discussions of this topic would be improved if this much abused metaphor [‘meeting of the minds’] were abandoned.” Id., p. 113, n. 2. Although this Court used the metaphor as late as last year, we were careful to point out that we meant, in more modern terminology, “objective indicator[s] of agreement.” Fort Smith Service Fin. Corp. v. Parrish, 302 Ark. 299, 789 S.W.2d 723 (1990).
No real harm was done in this case, as the jury was given an instruction from which it could conclude that it was to determine whether there was evidence that the acts of the parties constituted “indicators of agreement,” when it required “a manifestation of mutual assent.”
5. Mitigation of damages
Crain Industries argues that the evidence is insufficient to support the jury’s apparent finding that three of the employees, Cass, Haywood, and Marion, fulfilled their duty to mitigate damages by seeking other employment after the lay-off. It is also argued that the jury’s decision in this regard is clearly against the preponderance of the evidence.
Each of the employees in question testified about searching for work after being laid off by Crain. It is argued that Cass, who had been a maintenance supervisor, was given an offer of reemployment in an hourly wage position but refused to accept it because he stated he wanted his old job back rather than the hourly job. Cass testified he searched for other jobs and he attempted to speak to Crain officials on the phone about their offer, but his calls were not returned.
Crain contends that employees Haywood and Marion failed to mitigate because they abandoned their job searches after beginning to receive Social Security benefits. Mr. Haywood accepted Social Security disability benefits after searching unsuccessfully for other employment. Ms. Marion, who was 62 years old, testified she “retired” after being consistently refused employment. The question whether she, as well as Cass and Haywood, exercised sufficient diligence in her job search was one of fact for the jury which was properly instructed on the issue. The evidence was sufficient to pose a jury question, and we cannot conclude that the verdict was clearly against the preponderance of the evidence so as to require a new trial. See Ark. R. Civ. P. 59(a)(6).
6. Attorney’s fee
An attorney’s fee was awarded by the trial court to the employees pursuant to Ark. Code Ann. § 16-22-308 (Supp. 1989). Crain argues the award was erroneous because the provision in the statute that the fee be for “labor or services” applies only to labor or services which have been performed. The argument misses the point that the statute also provides that an attorney’s fee may be awarded for “breach of contract.” Barnett v. Arkansas Trans. Co. Inc., 303 Ark. 491, 798 S.W.2d 79 (1990).
As the holding of the trial court was that there was an employment contract which was breached, the awarding of an attorney’s fee was not improper.
Affirmed.
Glaze and Corbin, JJ., dissent. | [
18,
-8,
-44,
-19,
8,
-29,
58,
-102,
115,
-95,
55,
115,
-17,
-82,
89,
75,
-10,
117,
81,
75,
-75,
-93,
1,
67,
-42,
-41,
-15,
-91,
59,
107,
-12,
93,
-52,
16,
-118,
-44,
-90,
64,
-35,
92,
-126,
1,
-88,
-25,
120,
-128,
52,
59,
48,
-49,
17,
-100,
-69,
40,
24,
-49,
76,
104,
126,
105,
-32,
113,
-118,
-123,
103,
16,
-77,
4,
-98,
3,
-40,
14,
-104,
49,
-95,
-24,
122,
-74,
-122,
86,
33,
59,
13,
98,
115,
-110,
12,
-89,
-4,
-104,
62,
-9,
-115,
-122,
-108,
24,
83,
1,
-106,
-100,
88,
20,
-121,
124,
-14,
-107,
31,
100,
3,
-49,
-42,
-79,
14,
117,
-106,
11,
-49,
2,
16,
96,
-98,
-82,
93,
7,
19,
31,
-58,
-99
] |
Robert H. Dudley, Justice.
The appellants, Radford Cox, Sr. and Radford Cox, Jr., were jointly tried and convicted of the capital murder of Freddie Harrison. Both were sentenced to life in prison without parole. Together, they assert five points, and numerous sub-points, on appeal. We hold there is no reversible error and affirm the judgment of conviction. Because one of the points of appeal involves the sufficiency of the evidence, and another involves the denial of a request for a severance, it is necessary that we discuss the facts in detail.
Appellants Radford Cox, Sr. and Radford Cox, Jr., commonly known as Big Rad and Little Rad, attended the Independence Day celebration at the Clear Creek Bridge near Mena on July 4,1989. Late in the day Little Rad, an adult, was setting off fireworks, when Freddie Harrison, a war veteran, said the fireworks made him nervous. He asked Little Rad to stop setting them off. Little Rad refused, and Harrison started to shove him around. Big Rad said, “Stop it, if you all don’t stop it, somebody’s gonna get hurt.” Harrison knocked Little Rad to the ground. Big Rad reached into his nearby van, grabbed a .25 caliber pistol, and fired three to five shots at Harrison; hitting him in the chest and side. Harrison fell to the ground near a road.
Jonathan Cox, a bystander, went to Harrison and attempted to aid him, but Little Rad kicked him away. Harrison was still breathing at the time. Little Rad dragged Harrison from the road over into some brush about two car lengths away. He returned to the van and said, “It’s not over with yet, we gotta finish it.” Big Rad handed him the pistol. Little Rad then disappeared into the nearby brush where he left Harrison. A witness heard three more shots. Little Rad reappeared and gave the pistol back to Big Rad. Harrison’s body was later found by the police. He had been shot six times. Three of the bullet wounds were in his chest and side, and three more, which had been fired from- only a few inches away, were in his head, with one of them being between the left eye and the left ear, another being to the left forehead, and the third being above the right ear. Subsequently, four of the bullets were removed from Harrison’s body, and a firearms tool marks examiner found all four bullets had been fired from Big Rad’s pistol.
Big Rad subsequently told Jessie Hooks that, “If it got out, he would be the same way Freddie [Harrison] was.” Joann Cox, another eyewitness, said Big Rad told her to “Keep my fucking mouth shut or I would get the same thing.” He told eyewitness Carl Duramus, “If I knew what was good' for me, I’d keep my mouth shut, that I didn’t know nothing about nothing.”
Joann Cox quoted Little Rad as saying, “He shot Freddie Harrison in the head. He did not say in the head. He just said he shot him to get him out of his misery.”
About eight months later Big Rad, while in the Scott County jail, solicited Arnold Shores, another inmate, to kill the state’s main witness, Carl Duramus.
We can quickly dispose of the appellants’ first argument, which involves the sufficiency of the evidence. Both contend there was no substantial evidence of premeditation and deliberation. Those elements of the crime may be inferred from circumstances, such as the character of the weapon used, the manner in which it was used, the nature, extent, and location of the wounds inflicted, the conduct of the accused and the like. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977). Further, premeditation and deliberation in the act of murder can be formulated in the assailant’s mind in an instant. They do not have to exist in the mind of the assailant for an appreciable length of time, but must exist when the assailant commits the act. Shipman v. State, 252 Ark. 285, 478 S.W.2d 421 (1972).
Here, Big Rad got a gun out of his van and fired four or five shots at the victim. Three of the shots hit his torso. He fell, mortally wounded. Little Rad prevented a bystander from aiding the victim and said, “It’s not over yet, we gotta finish it.” Big Rad handed the pistol to Little Rad who then fired three more rounds into the victim’s head. It is hard to imagine any stronger direct evidence of a deliberate intent to kill.
Little Rad separately argues there was no direct evidence that he shot the victim. That bare statement is correct, but it does not entitle him to a reversal because the circumstantial evidence of Little Rad’s guilt is so strong that it is inconsistent with any hypothesis other than guilt.
In another sub-point, both appellants contend that there was insufficient evidence to show which one of them caused the victim’s death. Arkansas law defines causation for the purpose of determining criminal liability as follows:
Causation may be found where the result would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient.
Ark. Code Ann. § 5-2-205 (1987). Our law is well established that, where there are concurrent causes of death, conduct which hastens or contributes to a person’s death is a cause of death. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989); McClung v. State, 217 Ark. 291, 230 S.W.2d 34 (1950); Rogers v. State, 60 Ark. 76, 29 S.W. 894 (1894). See also, W.R. LaFave & A.W. Scott, 1 Substantive Criminal Law, § 3.12 (1986); R.M. Perkins & R.N. Boyce, Criminal Law, 783-4 (3d Ed. 1982).
In the case at bar, the medical examiner who performed the autopsy on the victim testified, “Mr. Harrison was shot six times and he died as a result of these six wounds, which entered the brain, internal organs and caused death of internal bleeding.” The eyewitnesses to the murder described the manner in which the killing occurred. The medical examiner’s testimony, coupled with that of the eyewitnesses’, was sufficient to prove that the victim died as a result of internal bleeding from the shots fired by the appellants. Thus, there was substantial evidence they caused the death of their victim.
In another point, the appellants argue that the trial court erred by refusing to grant their motion for a severance. Again, we can quickly dispose of the argument. A.R.Cr.P. Rule 22.3(b)(1) provides:
(b) The court, on application of the. . . defendant other than under subsection (a), shall grant a severance of defendants:
(i) if before trial it is deemed necessary to protect a defendant’s right to a speedy trial, or it is deemed appropriate to promote a fair determination of the guilt or innocence of one (1) or more defendants.
We have held that the above rule gives the trial court discretion to grant or deny a severance, and the trial court’s ruling will not be disturbed on appeal absent an abuse of that discretion. McDaniel & Gookin v. State, 278 Ark. 631, 648 S.W.2d 57 (1983).
The issue of severance is to be determined on a case by case basis, considering the totality of the circumstances, with the following factors favoring severance: (1) where defenses are antagonistic; (2) where it is difficult to segregate the evidence; (3) where there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; (4) where one defendant could have deprived the other of all peremptory challenges; (5) where if one defendant chooses to testify the other is compelled to do so; (6) where one defendant has no prior criminal record and the other has; (7) where circumstantial evidence against one defendant appears stronger than against the other.
Id. at 638, 648 S.W.2d at 60.
In the present case, the appellants contend that their defenses were antagonistic since it could not be determined which bullets caused the death of the victim. However, as previously pointed out, the shots fired by both defendants contributed to, and were the cause of, the victim’s death. The appellants’ defenses were not antagonistic in this respect.
They further contend that their defenses were antagonistic because they were father and son. However, this argument is not convincing and is not supported by authority. We need not address it further. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
Each appellant argues that the evidence against the other was stronger than against him, and accordingly, a severance should have been granted. Big Rad argues that the evidence of Little Rad dragging Harrison and shooting him at point blank range prejudiced Big Rad, who may have only acted in the heat of the moment, after his son had been attacked. The argument ignores that evidence that shows that Big Rad fired several shots into the torso of the victim from a range of a few feet, and that he gave his pistol to his son after his son had said he wanted to “finish the job.”
Little Rad contends the evidence against him was only circumstantial, and therefore, a severance should have been granted. Although circumstantial, the evidence against him is as strong as that against his father. There is no reasonable conclusion to be drawn from the evidence except that Little Rad fired the shots into Harrison’s head. Additionally, the testimony of Joann Cox showed that Little Rad admitted shooting the victim. Under the totality of the circumstances in this case, the trial court did not abuse its discretion in refusing to grant appellants separate trials.
Appellants next argue that the trial court erred in admitting the testimony of Arnold Shores. They contend that, pursuant to A.R.Cr.P. Rule 17(a)(i), the prosecutor failed to disclose the name and address of Arnold Shores. We hold that while Shores might have secreted information, the prosecutor did not do so, and the trial court did not abuse its discretion in allowing Shores to testify. The facts surrounding Shores and his testimony are as follows: About two months before the trial Shores and Big Rad were both in the Scott County jail. Shores, while only twenty-four years old, had spent a good part of his life in trouble. At his young age, he had prior convictions for theft, breaking and entering, aggravated robbery, criminal mischief, terroristic threatening and, at the time, was in jail awaiting trial on a drug charge, for being a felon in possession of a firearm, and for theft by receiving. He was jail-smart and sought to cooperate with the police in the hope of gaining a lesser sentence. About three weeks before the appellant’s trial, Shores was giving a criminal investigator information about some thefts in Greenwood and Fort Smith as well as some burglaries in Logan County. While discussing those matters with the investigator, he mentioned something about Big Rad asking him to do something. Little Rad’s attorney, who coincidentally represented Shores, perhaps suspected Shores might become a witness because, according to his argument, several weeks prior to trial, he asked Shores if he knew anything about the July 4 murder. Shores said no. The trial was set to begin on Tuesday, April 17.
On Friday, April 13, the police talked to Shores, and that evening the prosecutor notified appellants’ attorneys that Shores was a potential witness. The prosecutor confirmed this by a letter delivered the next day, Saturday, April 14. On Monday, April 16, Little Rad’s attorney asked the sheriff to call Shores to find out if he really was going to be a witness. Shores responded that he was not going to testify. On Tuesday, April 17, after voir dire had commenced, the investigator took a written statement which was immediately provided to appellants’ attorneys. That statement, and Shores’ subsequent testimony, were to the effect that two months earlier, while he and Big Rad were in jail together, Big Rad tried to hire him to “go to Carl Duramus’ house and get him out, threaten his family, make him write a statement saying he did that murder. ... He said to make him write a statement saying he done it and shoot him, make it look like suicide, wipe the gun down. He said make sure the gun couldn’t be traced.”
The prosecutor gave notice on April 13 that Shores was a potential witness. Until April 17, neither the prosecutor nor the police knew for certain that Shores was going to be a witness. It was not until then that he divulged the request to kill Carl Duramus. If information had been secreted, it was done by Shores, and not the State. Appellants’ counsel seemed to recognize this at trial because they then argued:
MR. COX: We anticipate they’re going to call some folks, Judge, this Arnold Wayne Shores, for example, and we object to the calling of Arnold Wayne Shores for a number of reasons. Here’s a copy of the statement. One of the reasons that we object to the calling of Arnold Wayne Shores, as we previously told the Court, we claim surprise, that we were misled by Arnold Wayne with regard to his knowledge of this, the fact that he made the statement some time last week to the Criminal Investigation Division, told Sheriff Hunt Monday, not in his presence, in a phone call, that he knew nothing about this matter, hadn’t talked to anybody, hadn’t given any statement. In fact, we were presented with a different statement Tuesday, the day the trial started, a little after lunch time, where he talked about a whole bunch of his alleged knowledge of this .... (Emphasis added.)
Further, the failure of appellants’ counsel to interview Shores appears to have been the result of misunderstanding between counsel, the Sheriff, and Shores, rather than the result of any impropriety on the part of the prosecutor. As previously set out, after the prosecutor listed Shores as a potential witness, but before the trial had started, appellants’ counsel asked the Sheriff to phone Shores and see if he really was going to testify. Shores’ testimony concerning the event is as follows:
BY MR. COX, (con’t.) [Appellants’ attorney]:
Q. Mr. Shores, do you recall a telephone call that you got from Sheriff Maurice Hunt on Monday of this week?
A. Yes, I do.
Q. And do you recall the substance of that telephone conversation?
A. Yes.
Q. Do you recall telling Sheriff Hunt you just didn’t remember any, or didn’t know anything about this at all?
A. I told him I wasn’t out there, I didn’t know nothing that went on out there.
Q. Did you tell him that you had talked to anybody about this or did you tell him you hadn’t talked to anybody?
A. He called me on the phone, asked me if I was a witness in this case, I said not that I know of. I said I wasn’t out there, I don’t know what went on.
Q. Did you tell him that you had not talked to anybody about this case? Did he ask you?
A. He asked me if I had talked to anyone about being a witness and I said no.
Q. But, in fact, you’d talked to Bobby Walker [criminal investigator] about it.
A. Not' about being a witness.
Q. Had you talked to him, Mr. Shores, about this case?
A. I mentioned it to him.
Q. Pardon?
A. I mentioned a few things they’d said to me to him.
Q. Thank you.
BY THE COURT: Any other questions.
MR. BULLOCK: Yes, Your Honor.
REDIRECT EXAMINATION
BY MR. BULLOCK [Prosecuting attorney]:
Q. Mr. Shores, did you mean by the statement to the Sheriff that you weren’t out there at the scene when this occurred?
A. Yes.
Little Rad additionally asks for reversal of his conviction by arguing that Shores’ testimony should have been excluded since it did not apply to him. The argument does not entitle Little Rad to relief. The statement was admissible against Big Rad, but before allowing Shores to testify, the trial court, on its own motion, noted that the testimony might be prejudicial to Little Rad and agreed to give a limiting instruction. Later, at the conclusion of Shores’ testimony, the trial court asked Little Rad’s attorney if he wished to have the limiting instruction given, and he responded that he did not. Therefore, Little Rad is not entitled to separate relief.
Both appellants argue that Shores’ testimony regarding Big Rad’s solicitation of him is immaterial. However, evidence of Big Rad’s attempt to eliminate the key witness against him is relevant as evidence of his guilt. In Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982), this court held that evidence of a party’s attempt to fabricate evidence of innocence was admissible as an admission and as proof of guilt. In reaching this conclusion, we quoted Wigmore, Evidence, § 278 (Chadbourn Rev. 1979) as follows:
that a party’s falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not necessarily apply to any specific fact in the cause, but operates indefinitely though strongly, against the whole mass of alleged facts constituting his cause.
The appellants additionally argue that Shores’ testimony should have been excluded because it was cumulative. The argument is without merit for two reasons: (1) the testimony was not cumulative and (2) the argument was not raised below.
Both appellants next argue that the trial court erred in allowing the testimony of Joann Cox and three other witnesses. We summarily dispose of the argument dealing with the three witnesses because no motion was made below with regard to them. Thus, we deal only with the testimony of Joann Cox. After she had testified a motion was made to strike her testimony because she supposedly had violated the rule. See A.R.E. Rule 615. The trial court heard, proof on the issue and declined to strike her testimony. The ruling was eminently correct. The sequestered witnesses did not discuss the facts of this case or what their testimony would be or had been. One merely returned to the witness room after testifying and said it was “rough.”
At the time of sentencing, A.R.E. Rule 36.4 provided that a motion requesting a new trial on the grounds of ineffective assistance of counsel had to be filed within thirty days. Such a motion was filed, and a hearing was held. The trial court ruled that appellants were not entitled to a new trial. That ruling is included in this appeal.
Their first argument under this section is that appellants’ attorneys were ineffective because they did not cross-examine five witnesses. The first of these was the medical examiner, Dr. Fahmy Malak. They contend he should have been asked which shot actually killed the victim. Such cross-examination would not have made any difference, and trial counsel obviously knew it. As previously discussed, the medical examiner’s testimony established concurrent causes of death and it was not necessary to show which of the concurrent causes was the actual cause. Further, it would have been sheer madness for Little Rad’s attorney to question whether three point-blank shots to the head were a cause of death, and in addition, Big Rad’s attorney had previously found out that Dr. Malak, if questioned, would have testified that the wounds to the torso alone eventually would have been fatal.
Appellants argue their counsel were ineffective for not cross-examining a criminal investigator, the Polk County Sheriff, the Scott County Sheriff, and a Mena policeman. However, they presented no evidence on this issue at the hearing, and thus, have not overcome the strong presumption that counsel made all significant decisions in the exercise of reasonable professional judgment. See Strickland v. Washington, 466 U.S. 668 (1984).
The next ground alleged as ineffective assistance of counsel is the failure to present evidence of the appellants’ intoxication during the guilt-innocence phase of the trial. The appellants argue the evidence of their intoxication at the time of the shooting would have tended to raise a reasonable doubt as to whether they had the requisite culpable mental state to commit capital murder. In White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986), we held that voluntary intoxication is no longer a defense in criminal prosecutions. It is neither a statutory affirmative defense nor a common law defense negating intent in crimes requiring a “purposeful” mental state. Pharo v. State, 30 Ark. App. 94, 783 S.W.2d 64 (1990).
Further, appellants’ attorneys did, in fact, elicit testimony from the witnesses about consumption of alcoholic beverages at the outing. The core of their argument seems to be that they should have been put on the witness stand. The argument is without any basis. At the hearing on the motion for a new trial, the trial attorneys testified that the appellants personally decided not to testify. Certainly Little Rad’s counsel had good reason not to encourage him to testify since he had made a prior statement to authorities denying his presence at the scene of the shooting. This statement was not in evidence but could have been used to impeach him if he had testified. Likewise, Big Rad’s counsel did not encourage him to testify about his intoxication because he felt it would not benefit him. Matters of trial tactics and strategy are not grounds for post-conviction relief. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984).
Appellants also argue that their attorneys were ineffective because they failed to move for a mistrial after the prosecutor, in closing argument, referred to them as “killers” who needed to be taken out of society. Counsel objected to the language, and the trial court sustained the objection, but counsel did not move for a mistrial. Appellants contend that failure constituted ineffective assistance of counsel. Counsel’s strategy was well taken, since a mistrial would not have been granted under such conditions. After all, the prosecutor’s closing argument was based upon the evidence. It was not improperly inflamatory and would not mandate a mistrial.
Finally, because the sentences fixed in this case are life without parole, we are required by Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals to examine the record in order to determine whether there were any reversible rulings other than those argued. There are no such errors.
Affirmed. | [
112,
-25,
-36,
31,
25,
-32,
25,
58,
-54,
-30,
98,
83,
-115,
-29,
73,
121,
51,
127,
84,
105,
-79,
-77,
87,
1,
-77,
-77,
123,
-41,
-78,
-52,
-82,
125,
12,
96,
-50,
69,
-26,
-52,
-27,
88,
-122,
-111,
-77,
-11,
-109,
16,
53,
106,
-46,
11,
33,
-100,
-94,
46,
30,
-26,
72,
62,
75,
-83,
80,
121,
-120,
13,
-36,
16,
-125,
-94,
-68,
-122,
112,
63,
88,
49,
0,
-24,
113,
-92,
-128,
100,
73,
-117,
-124,
34,
-29,
0,
-55,
-3,
-87,
-120,
62,
110,
-101,
-89,
-104,
121,
3,
5,
-76,
-33,
106,
84,
62,
116,
107,
30,
89,
45,
-46,
-49,
-76,
-111,
-51,
40,
-110,
-6,
-29,
37,
48,
117,
-49,
-22,
84,
101,
112,
-1,
87,
-10
] |
Steele Hays, Justice.
Arkansas Code Ann. § 5-37-525 (Supp. 1989) makes it a crime for a contractor or subcontractor to knowingly refuse to pay for materials. The trial court held the statute unconstitutional and the state appeals. We affirm.
Appellee, Gary Riggs, was arrested on two misdemeanor counts of defrauding a materialman under § 5-37-525 for failing to pay for materials totalling $3,729.77. Riggs was convicted in municipal court on both counts. Riggs appealed to the Independence County Circuit Court and moved to dismiss the charges on the ground that § 5-37-525 violated art. 2, § 16 of the Arkansas Constitution, prohibiting imprisonment for debt, which reads:
No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.
The trial court sustained Riggs’ argument and dismissed the charges. The state appeals, contending the trial court erred in holding § 5-37-525 unconstitutional. The statute reads in part:
§ 5-37-525 Defrauding a materialman.
(a) A person commits the offense of defrauding a materialman if being the principal contractor or subcontractor, he knowingly or willfully fails to pay any supplier or subcontractor for materials or goods furnished to the project within thirty days of final receipt of payment under the contract.
* * *
(d) It shall be an affirmative defense to prosecution under this section that the contractor or subcontractor has given notice of a dispute in the terms, conditions, payment, or quality of goods to the contracting consumer or to the supplier or subcontractor, or the contractor has in good faith sought relief in federal court under the bankruptcy laws of the United States, prior to the expiration of the thirty days after receipt of payment under the contract.
In Peairs v. State, 227 Ark. 230, 297 S.W.2d 775 (1957), we held an earlier statute unconstitutional as violating the imprisonment-for-debt clause. The disputed statute read:
Any original or principal contractor or his assignee who shall be paid the contract price or any portion thereof, and who shall fail or refuse to discharge the liens created by this section, to the extent of the contract price received by him, shall be deemed guilty of an offense and punishable as follows.
We held that the absence of language which “makes fraud or fraudulent intent a part or prerequisite of the criminal offense” rendered the statute unconstitutional.
The state does not argue with the result in the Peairs opinion but urges that the requirement under the present statute, providing that the contractor or subcontractor “knowingly or willfully fails to pay,” sufficiently distinguishes it from the statute in Peairs so that it withstands constitutional challenge. The state claims its position is supported by other statutes with similar constitutional provisions and statutes.
The state cites People v. Howard, 75 Cal. Rptr. 761, 451 P.2d 401 (1969), in which the court considered a similar statute which was not dependent on “fraud,” requiring only a willful refusal to pay. The court examined the statute in light of the state’s constitutional prohibition against imprisonment for debt, which, like ours, makes an exception only for cases of fraud. Noting the historical purpose of the constitutional prohibition, the court interpreted the term fraud broadly so as to also include the act prohibited in the statute — “willfully failed to pay,” even though it was not fraud in the conventional sense.
Nevertheless, we note that other states take a stricter view of the same constitutional provision and hold that the fraud exception in the imprisonment-for-debt clauses does not extend to fraud in its broader concepts. See e.g., People v. Piskula, 595 P.2d 219 (Colo. 1979); and see also People v. Collie, 682 P.2d 1208 (Colo. 1983), and Annotation, Failure to Pay Labor, Materialmen as Crime, 78 A.L.R. Fed. 563 (1977).
The state has also relied on standard rules of construction to support its case, i.e., a statute is presumed constitutional and all doubt as to constitutionality is resolved in favor of constitutionality. Duhon v. State, 299 Ark. 503, 774 S.W.2d 834 (1989). However, while these rules generally govern constitutional challenges, that is not so when the safeguards of personal liberties are at issue. As in the case of all constitutional provisions designed to protect the liberties of the individual, every doubt must be resolved in favor of the citizen in the enforcement of the constitutional provision that no person shall be imprisoned for debt. 16A Am. Jur. 2d Constitutional Law § 619 (1979), citing to Bradley v. Superior Court of San Francisco, 48 Cal.2d 509, 310 P.2d 634 (1957); People v. La Mothe, 331 Ill. 351, 163 N.E. 6 (1928); and see also, 16 Am. Jur. 2d Constitutional Law § 97 (1979).
The state has not pointed to any authority that counters the above requirement for doubt to be resolved in the favor of the citizen when this personal liberty is in question. Nor have we found any. As the doubt in this case must favor the individual, we affirm the trial court. | [
80,
106,
-40,
124,
-118,
-64,
58,
-102,
19,
-31,
101,
83,
-19,
-26,
4,
115,
-31,
125,
116,
121,
69,
-78,
101,
107,
-14,
-77,
-87,
-59,
-71,
75,
-4,
-99,
92,
49,
-62,
-43,
6,
-126,
-27,
88,
-118,
1,
-117,
-32,
-15,
65,
48,
-85,
20,
15,
49,
-84,
123,
46,
16,
-50,
-83,
108,
95,
47,
64,
-13,
-101,
-115,
111,
21,
-126,
5,
-100,
7,
-8,
60,
-104,
48,
9,
-24,
115,
-74,
-62,
101,
67,
-101,
9,
98,
98,
0,
-115,
-57,
-36,
-124,
30,
-2,
-115,
-89,
-112,
-7,
11,
15,
-74,
-107,
104,
20,
4,
-10,
-27,
-107,
89,
108,
-125,
-50,
-12,
-96,
15,
101,
-36,
90,
-49,
36,
48,
117,
-50,
-78,
92,
39,
123,
27,
14,
-35
] |
Tom Glaze, Justice.
This is a slip and fall case in which appellant apparently sustained injuries from falling on a red ink pen located in an aisle in an appellee’s store in Jonesboro. A jury verdict was returned in appellee’s favor, and appellant appeals raising one point for reversal, viz., the trial court erred in excluding certain testimony proffered by appellant’s witness, Marvin Russell, as rebuttal evidence. We hold the trial court ruled correctly, and therefore affirm.
Some nine months after her fall and in preparation for trial against appellee, appellant hired Russell, an investigator, to place a styrofoam cup on the appellee’s store floor at the approximate place where the appellant had fallen. Russell’s proffered testimony at trial reflects that his purpose in placing the cup was to determine whether or not the janitor regularly cleaned that area of the store. He took pictures of the cup’s placement and returned the next day to find the cup had been kicked or somehow relocated to a nearby spot under a pant’s rack. Russell again took pictures of the cup, as relocated, for the apparent purpose of testifying at trial.
To prevail in her slip and fall case, the appellant must show that appellee violated its duty to use ordinary care to maintain the premises in a reasonably safe condition by proving either that the presence of the ball point pen upon the floor was the result of appellee’s negligence or that the ball point pen had been on the floor for such a length of time that appellee knew or should have reasonably known of its presence and failed to use ordinary care to remove it. See AMI Civil 3d 1105; Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987).
In appellant’s case-in-chief, she testified that, immediately prior to her fall, two of appellee’s employees had been looking for something on the store floor as she approached to ask them where the boys’ blue jeans were located. While looking at the jeans, she slipped and fell. After her fall, an ink pen was discovered near her feet. During appellee’s case, the two employees denied that either of them had been looking for a pen, as was suggested by appellant’s testimony. However, one of the two employees (as did the store manager) testified that, under appellee’s cleanup policy, all employees who saw anything on a store’s floor were to “pick it up and put it in its proper place.” The manager added that appellee’s policy is to keep a reasonably safe place for its customers and employees are instructed that, if they see anything on the floor, they are to pick it up.
In appellant’s cross-examination of appellee’s store manager, counsel specifically asked about appellee’s cleaning policy and the manager responded that a night cleanup man swept the floor five nights a week, and its stockmen swept the floor the other two nights. Counsel asked if these employees picked up “cups, pencils, wrappers and things like that,” to which the manager said, “Yes, sir, anything that’s on the floor, they’re to clean up.” Counsel further inquired if the cleanup policy related by the manager was in effect on the day appellant fell and the manager said, “Yes, sir.”
At the end of appellee’s case, appellant offered Russell’s testimony for the expressed purpose of showing appellee’s employees and store manager were lying when they said that the store was cleaned up every night. The trial court’s ruling to exclude such testimony was correct for many reasons.
First, the trial court determined that Russell’s proffered testimony was not relevant. We agree. Russell’s attempt to reconstruct a similar situation nine months after the appellant fell failed to show the appellee’s cleanup employees had not swept the floor on the night prior to appellant’s fall. All Russell’s reconstructed event showed was that he had found the cup in a different spot from where he had placed it the night before. Such testimony in no way showed that appellee’s employees had lied in relating appellee’s nightly cleanup policy. Nor did Russell’s testimony show that the store had not been swept on the night before the appellant’s fall.
Second, while subsequent similar events testimony may be admissible to impeach the testimonies given by appellee’s employees concerning the events occurring and surrounding appellant’s fall, we have held the burden of proving the necessary similarity of conditions rests on the party offering the evidence. See Fraser v. Harp’s Food Stores, Inc., 290 Ark. 186, 718 S.W.2d 92 (1986). The burden of proving the necessary similarity of conditions rests on the party offering the evidence, and the trial court is given wide discretion in determining whether this burden has been met. Id.
Here, Russell’s attempt to show a similar or reconstruc tive event to the one existent of the night before and day of appellant’s fall again misses the mark of relevancy. Russell’s testimony showed he used a cup, not a pen, in his failed attempt to reconstruct conditions as they existed on the day appellant fell. Obviously, a pen presents a smaller and more perceptible or potential danger than does a styrofoam cup. Furthermore, Russell did not specify which night of the week or which cleanup personnel, stock clerk or regular janitorial staff, had been assigned to sweeping duties on the respective nights and days of the two separate events. While other factors exist to show the dissimilarity between the two events, we believe these stated distinctions sufficiently reflect appellant’s failure to meet her burden.
Finally, even if appellant had shown that Russell’s proffered testimony was relevant rebuttal evidence, such testimony added nothing to what appellant had already elicited upon her cross-examination of appellee’s witnesses. For example, one employee, who testified appellee’s policy was to sweep the floors each night, indicated she sometimes might enter the store the day following the night it was swept and find pencils, cups or candy wrappers on the floor. Another employee admitted that a cup could have been left on the store floor from the prior night’s cleaning, and she might not have known of it. In view of such candid and revealing admissions by appellee’s employees, Russell’s proffered testimony had little or no added probative value. In other words, his testimony only confirmed or was cumulative to these employees’ stories that cups, pencils or other items could have been on the appellee’s store floor without their knowledge even though the store had been cleaned the night before. Thus, while we believe the trial court properly ruled Russell’s proffered testimony was not relevant or proper rebuttal evidence, we fail to see how appellant could have been prejudiced by its exclusion since such testimony was merely cumulative to that evidence appellant had already elicited through appellee’s witnesses.
For the reasons given above, we affirm the lower court’s decision.
Dudley, J., not participating. | [
-16,
124,
108,
-52,
24,
99,
50,
-66,
99,
-123,
101,
81,
-91,
-57,
77,
115,
-10,
125,
-43,
107,
-41,
-93,
3,
73,
-42,
-5,
-16,
85,
-75,
107,
116,
-9,
76,
48,
-54,
-43,
-58,
0,
-51,
-42,
-126,
1,
-104,
-30,
121,
-64,
32,
42,
-74,
79,
113,
-122,
-30,
46,
28,
-49,
42,
44,
106,
61,
112,
-79,
-127,
5,
-3,
21,
-77,
38,
-97,
-121,
-40,
10,
-100,
48,
0,
-24,
50,
-74,
-126,
116,
59,
-85,
-124,
97,
98,
34,
-99,
-89,
-68,
-16,
39,
102,
-99,
-25,
26,
40,
9,
47,
-65,
-107,
36,
17,
12,
-4,
-1,
85,
63,
108,
11,
-113,
116,
-111,
15,
40,
-122,
-89,
-17,
7,
-80,
113,
-50,
-28,
92,
69,
51,
-101,
-50,
-100
] |
W. W. Bassett, Jr., Special Chief Justice.
This case involves a contract dispute. The primary issue is whether a contract between Appellant, H. D. Sutton, and Appellee, Ryder Truck Rental, was a valid lease agreement or a veiled conditional sale contract. Sutton entered into a truck lease and service agreement with Ryder on February 28,1983. In 1984, and again in 1986, Sutton leased additional vehicles from Ryder. In 1987, Sutton stopped making payments to Ryder under the agreement. Ryder filed suit against Sutton. Sutton counterclaimed alleging that the agreement was actually a conditional sale which was usurious. Sutton’s counterclaim sought damages in the amount of twice the sum of the alleged interest paid by Sutton to Ryder under the agreement.
The case was tried to a jury in August, 1989. The jury found the contract was a valid lease agreement and returned a verdict for Ryder in the amount of $208,072.13. In addition, the trial court awarded Ryder attorney’s fees in the amount of $53,256.50. The trial court, however, refused Ryder’s claim for expert witness fees in the amount of $24,368. Alleging numerous errors by the trial court and that the jury’s verdict was clearly against the preponderance of the evidence, Sutton made a motion for a new trial. The trial court denied Sutton’s motion. Sutton appealed. Ryder cross-appealed claiming that the trial court erred in refusing to award expert witness fees. We affirm on both the direct and cross-appeal.
In Fisher Trucking, Inc. v. Fleet Lease, Inc., 304 Ark. 451, 803 S.W.2d 888 (1991), this Court stated that the presence of the following five factors would indicate a conditional sale:
(1) The lessor is a finance company;
(2) The agreement puts all the risk upon the lessee;
(3) The agreement provides the same remedies upon the lessee’s default in the payment of rent that would be available to a conditional seller or to a mortgagee upon similar delinquency;
(4) The agreement provides that the lessee will upon the lessor’s request join the lessor in executing financial statements pursuant to the Uniform Commercial Code and other assurances the lessor deems necessary for protection of the interest of the lessor in the equipment; and
(5) There is an absence of any appreciable residual in the lessor at the expiration of the lease.
See also Hill v. Bentco Leasing, Inc., 288 Ark. 623, 708 S.W.2d 608 (1986); Bell v. Itek Leasing Corp., 262 Ark. 22, 555 S.W.2d 1 (1977).
In applying this analysis, this court has identified the absence of any appreciable residual in the lessor at the expiration of the lease as the “most fruitful single test” to distinguish a conditional sale from a lease. See Hill, 288 Ark. 623, 708 S.W.2d 608. Therefore, we place great emphasis on the amount the lessee must pay to acquire title after all payments have been made. See Fisher Trucking, Inc. v. Fleet Lease, Inc., 304 Ark. 451, 803 S.W.2d 888.
Applying these five factors to the case at bar, we first look to see if the lessor, Ryder, is a finance company. We find that it is not. Ryder leases vehicles and provides other incidental services to its customers associated with the use of these leased vehicles. Sutton not only leased trucks from Ryder, but also utilized many of the incidental services offered by Ryder. The facts show that Ryder is a full service lease company, not a finance company.
The facts further show that the agreement did not put all the risk upon the lessee, Sutton. Under the agreement, Ryder assumed the risk of repairs to the leased vehicles and agreed to replace or furnish substitute vehicles for those which became temporarily inoperable because of mechanical failure. Ryder also procured and provided Sutton with liability insurance with combined bodily injury and property damage limits of $750,000 per occurrence. Ryder paid at least one claim on Sutton’s behalf in which one of the leased vehicles was completely destroyed and the driver killed. Sutton did not assume all the risk of loss under the agreement.
The answer to the question of whether the lease agreement provided Ryder with the same remedies upon default as those available to a conditional seller or mortgagee upon similar delinquency is somewhat more difficult to reach. Upon default, a secured creditor or mortgagee may declare all remaining payments due, repossess the property, sell it and hold the debtor liable for any deficiency. The Ryder truck lease and service agreement provided that upon default, Ryder could possess the vehicles and demand that Sutton purchase them. However, Ryder does not seek to enforce this remedy. Instead, Ryder sought damages for those lease payments which were actually due and payable in addition to early termination charges provided for under the contract.
Sutton argues that Ryder’s right to possess the vehicles upon default and demand that Sutton purchase these vehicles has the same effect as selling the trucks to a third party at a public sale and obtaining a deficiency judgment. While there may be little, if any, practical distinction between the right to posséss and demand purchase, and the right to repossess, sell and seek a deficiency judgment, Ryder sought neither of these remedies. Ryder only sought damages for those lease payments that were actually due and payable under the contract and charges for early termination provided for under the contract. Ryder, in effect, sought those damages under the contract for early termination of the lease and not for default.
The fourth factor to be considered is whether the agreement required the lessee, Sutton, to execute a financial statement pursuant to the Uniform Commercial Code or provide other assurances to protect Ryder’s interest in the vehicles. The agreement contained no such provision. Moreover, Ryder never requested these additional assurances from Sutton.
Finally, the facts clearly show that Ryder retained an appreciable residual at the expiration of the lease and on each anniversary date of the lease when Sutton could exercise his option to purchase under the contract. Therefore, at no time was the option price nominal.
In Bell v. Itek, supra, we held that an option price for 10% of the original contract price was nominal. In Fisher Trucking, Inc. v. Fleet Lease, Inc., supra, we held that an option price of 50 % of the fair market value was not nominal. In the case at bar, at no time was the option price less than 44% of the original contract price. Moreover, at all times, the option price exceeded the fair market value.
In support of his argument that the option purchase price was nominal, Sutton basically relies upon In Re Puckett, 60 B.R. 223 (M.D. Tenn. 1986). In that bankruptcy case, the court used the “economic realities” test to determine whether an option purchase price was nominal. Sutton urges this court to adopt the economic realities test and find that the option purchase price was nominal. We decline to do so.
At the trial, Dent Gitchell, a lawyer and professor at the University of Arkansas Law School in Little Rock, appeared and testified on behalf of Ryder. The upshot of Gitchell’s testimony was to inform the jury of the basic remedies available for the breaches of an installment sale contract and lease agreement. Even though the trial court permitted the testimony, it specifically ruled that Gitchell could not couch his testimony in terms of any opinion comparing the remedies under the lease with the normal remedies for an installment sale. Sutton argues that Gitchell’s testimony violated Rule 704 of the Arkansas Rules of Evidence because it had the effect of telling the jury what result it should reach as to whether the remedies available to Ryder were the same remedies that would be available to a conditional seller or mortgagee. We disagree.
Rule 704 of the Arkansas Rules of Evidence provides:
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.
Here, it is doubtful that Gitchell ever rendered an opinion. If one was rendered, it certainly did no more than is permitted by Rule 704. See Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981). While we believe the better practice would have been for the trial court to properly instruct the jury as to the basic remedies available for the breaches of an installment sale contract and lease agreement, we cannot say under the facts in this record, that it was prejudicial error for the court to permit Gitchell’s testimony.
At the trial, Gary Welch, a certified public accountant, was prepared to testify on behalf of Sutton that at the expiration of the lease agreement Sutton had “no sensible alternative” but to exercise the option to purchase. The trial court excluded this testimony. Sutton proffered it.
The basis of this proffered testimony was that by exercising the option to purchase, Sutton could operate these vehicles more economically efficient as an owner rather than as a lessee. Sutton proffered the testimony for the purpose of showing that the option purchase price was nominal and the agreement nothing more than a sales contract in disguise. Sutton argues that the trial court erred in excluding this testimony. Once again, we disagree.
The question of whether the option purchase price is nominal turns on whether the lessor has retained an appreciable residual at the expiration of the lease. It is not determined by analyzing the hard costs of operation over the remaining economic life of the chattel should the lessee choose to exercise the option to purchase. Welch’s proffered testimony was, therefore, not relevant evidence that the option purchase price was nominal. The trial court properly excluded it under Rule 402 of the Arkansas Rules of Evidence. Even if the proffered testimony was relevant, its probative value was substantially outweighed by the danger of confusing the issues and misleading the jury and, therefore, not admissible under Rule 403 of the Arkansas Rules of Evidence.
Next, Sutton argues that the trial court erred by improperly instructing the jury as to the applicable law. After ruling that Welch’s testimony was inadmissible, the court nonetheless proceeded to instruct the jury in its Instruction No. 16 that the lack of a sensible alternative was one factor to be considered by them in determining whether the amount which Sutton must pay to exercise an option to purchase was “nominal”. While this part of Instruction No. 16 is inconsistent, it is likewise harmless, as the undisputed evidence shows there was no nominal option price. We find any error on the court’s Instruction No. 16 to be harmless error. Haseman v. Union Bank of Mena, 597 S.W.2d 67, 268 Ark. 318 (1980). We do not find it necessary to address point by point additional errors that Sutton maintains the trial court committed in instructing the jury. We have reviewed those instructions and find that they adequately instructed the jury as to the law it should apply to this case, and we find no error in the trial court’s instructions to the jury.
Finally, Sutton argues that the attorney’s fee awarded to Ryder by the trial court was excessive. An award of attorney’s fees is a matter for the sound discretion of the trial court. Absent an abuse of that discretion, this court will affirm. Southall v. Farm Bureau Mutual Ins. Co. of Ark., Inc., 676 S.W.2d 228, 283 Ark. 335 (1984). In the case at bar, we find that the award was reasonable and that the trial court did not abuse its discretion.
In Robinson v. Champion, 251 Ark. 817, 475 S.W.2d 677 (1972), this court identified a number of factors that should be taken into account in determining the reasonableness of an attorney’s fee. Among these considerations were the attorney’s skill and experience, relationship between the parties, difficulty of services, extent of litigation, time and labor devoted to the cause, fee customarily charged, and the results obtained. These factors are also set forth in Rule 1.5 of the Model Rules of Professional Conduct. These rules, of course, have been adopted by this court.
Applying these factors to the case at bar, we have no difficulty in concluding that the attorney’s fee awarded Ryder by the trial court was reasonable. The charges for the services provided by Ryder’s attorneys are well documented through affidavits and an extensive itemized statement. Given the nature, complexity and duration of this case, Ryder’s charges were justified and the attorney’s fee awarded Ryder was reasonable.
Lastly, we address the issue raised by Ryder on its cross-appeal. Ryder argues that the trial court erred by denying its claim for expert witness fees in the amount of $24,368. The allowance of costs is purely statutory, and in the absence of a statute, the fees of expert witnesses cannot be charged against the losing party. State Highway Comm. v. Union Planters Nat’l Bank, 231 Ark. 907, 333 S.W.2d 904 (1960). Arkansas has no statute which allows Ryder to recover expert witness fees in this case. Therefore, we affirm the trial court’s decision denying Ryder’s claim for expert witness fees.
Holt, Chief Justice, not participating. | [
80,
-7,
80,
78,
8,
96,
56,
-70,
-71,
-29,
39,
83,
-81,
-63,
4,
105,
-25,
93,
85,
110,
101,
-77,
6,
32,
82,
-13,
-37,
-35,
-69,
79,
-27,
87,
76,
-24,
-54,
-43,
-94,
-61,
-59,
28,
78,
2,
-72,
-24,
-39,
17,
48,
122,
16,
15,
65,
-59,
-13,
44,
25,
71,
-19,
42,
107,
33,
-63,
48,
-6,
15,
127,
3,
-126,
4,
-100,
13,
-54,
8,
-112,
48,
24,
-56,
123,
54,
-62,
116,
37,
-113,
-116,
34,
118,
3,
1,
-19,
-44,
-100,
38,
27,
-115,
-90,
-14,
88,
35,
77,
-73,
29,
122,
22,
124,
-10,
-42,
21,
29,
109,
6,
-114,
86,
-93,
5,
-78,
-102,
8,
-2,
-105,
-79,
112,
-49,
-6,
92,
71,
123,
-109,
-105,
-6
] |
Per Curiam.
Appellants, Robert Bogard and George Willis, by their attorney, have filed for a rule on the clerk.
Their attorney, Clyde E. Lee, admits that the failure to file the record in time was due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause-to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
-80,
-24,
-8,
30,
-86,
-96,
48,
-70,
91,
-31,
-13,
19,
-83,
-117,
28,
121,
115,
107,
85,
91,
-113,
-73,
118,
64,
54,
-13,
-29,
-43,
55,
111,
-28,
-12,
76,
32,
-54,
-47,
70,
-56,
-115,
88,
-58,
13,
57,
-26,
-7,
0,
48,
33,
-48,
15,
113,
-4,
-29,
-82,
30,
67,
-23,
44,
77,
49,
-48,
-15,
-106,
-123,
127,
20,
-80,
-60,
26,
5,
-40,
46,
-84,
48,
3,
-8,
50,
-92,
-121,
84,
45,
57,
-116,
70,
100,
41,
-7,
-17,
-96,
-88,
6,
58,
-99,
-90,
-111,
121,
-23,
-3,
-106,
-67,
45,
48,
39,
124,
-27,
-44,
29,
44,
11,
-49,
-44,
-77,
31,
114,
-114,
11,
-21,
69,
16,
49,
-49,
-26,
-34,
71,
51,
-109,
-98,
-92
] |
Tom Glaze, Justice.
This appeal is from the trial court’s decision barring appellant’s suit for negligence against appellee Energy Systems Management Co. (Ensco), stating appellant’s remedy was limited to Worker’s Compensation benefits. At the time appellant sustained his injuries, his employer, PSC Laboratory Management Services, was participating in a joint venture with Ensco which involved marketing the services of packaging, collecting, transporting and disposal of lab pacs — chemicals or waste materials packaged in fifty-five gallon drums. Appellant argued below, and now on appeal, that Ensco should not. be immune from tort liability because, in addition to Ensco’s role as a joint venturer and employer, it occupied a second or “dual capacity” that conferred upon it obligations independent of those imposed on it as an employer.
Professor Larson recently criticized the so-called “dual capacity” doctrine, stating the doctrine has proved to be subject to misapplication and abuse and the only effective remedy is to jettison it altogether and substitute the terms “dual persona doctrine.” 2A Larson, Workmen’s Compensation Law § 72.81 (1987). Under this theory, an employer may become a third person, vulnerable to tort suit by an employee, if and only if, he or she possesses a second persona so completely independent from and unrelated to the status as employer that by established standards the law recognizes it as a separate legal person. Id. In an attempt to explain this dual persona doctrine, Larson states the following:
Perhaps the best way to approach a correct analysis of the dual-persona concept is to provide illustrations of exceptional situations in which the concept can legitimately be employed. These will ordinarily be situations in which the law has already clearly recognized duality of legal persons, so that it may be realistically assumed that a legislature would have intended that duality to be respected. The duality may be one firmly entrenched in common law or equity. The status of a trustee or of a guardian is a familiar example of this. No such case has appeared in the reports, but one can readily hypothesize the case of a trustee who, as trustee, is legal owner of a small business. If the question should arise whether this confers immunity on him as an individual for torts he commits upon employees of the trust business, no one would hesitate to answer in the negative.
The duality may also be created by modern statute, the obvious example being the one-man corporation. Here again, apart from exceptional circumstances justifying the “piercing the corporate veil,” it is assumed without question that the corporation is a separate legal persona — because the statute makes it so.
In addition to the foregoing, Larson gives further examples of when the dual persona concept applies, but none is helpful to the appellant. Here, appellant was injured while coming to the aid of a co-worker who attempted to pour acid from a fifty-five gallon drum into smaller containers without a “barrel tilter” — an implement required by federal safety regulations. The drum fell, pulling the appellant over and into the acid that spilled. Appellant argues Ensco’s tort liability lies in the fact that, (1) in addition to being a joint venturer and employer, Ensco owned the property on which the joint venture did business, (2) it was required but failed to provide a barrel tilter and (3) its employee (not an employee of the joint venture) was responsible for safety in the entire Ensco premises, including the area where the joint venture was located. However, these factors fail to fall within the concept of dual persona even if that concept was recognized by this court.
Larson, in citing a host of cases and discussing various situations in which he believed the dual persona concept can legitimately be employed, stated that it is held with virtual unanimity that an employer cannot be sued as the owner or occupier of land, whether the cause of action is based on common-law obligations of landowners or on statutes such as safe place statutes or structural works acts. Larson submitted the following reasons for such holdings:
Apart from the basic argument that mere ownership of land does not endow a person with a second legal persona or entity, there is an obvious practical reason requiring this result. An employer, as part of his business, will almost always own or occupy premises, and maintain them as an integral part of conducting his business. If every action and function connected with maintaining the premises could ground a tort suit, the concept of exclusiveness of remedy would be reduced to a shambles.
2A Larson, Workmen’s Compensation Law § 72.82 (1987).
In the present case, Ensco, indeed, provided the premises and equipment used by the joint venture to perform the joint venture’s business — part of which business the appellant and his coworker were performing when the incident in question occurred. Nevertheless, as pointed out by Larson above, Ensco’s ownership and maintenance of its premises or its responsibility to provide for safety devices for its employees does not cause it to be subject to a suit in tort. Each venturer, Ensco and PSC Lab, had agreed to maintain worker’s compensation insurance for its employees assigned to the joint venture, and Ensco paid such benefits to appellant after he sustained his work-related injuries. We believe the trial court was correct in limiting appellant to these compensation benefits. In sum, the appellant failed to allege and the record otherwise fails to show the Ensco possessed a second persona so completely independent from and unrelated to its status as an employer.
Finally, while appellant seems to acknowledge and does not argue otherwise, we mention also that the fact Ensco is a joint venturer does not satisfy the dual persona concept. In Lewis v. Gardner Engineering Corp., 254 Ark. 17, 491 S.W.2d 778 (1973), we adhered to the general rule that a joint venturer who is also an employer is immune from tort liability under the Worker’s Compensation Law. The court stated further as follows:
It has been held that unlike a partnership, a joint adventure is not a distinct legal entity separate and apart from the parties composing it, and consequently an employee of a joint adventure is an employee of each of the joint adventurers under ordinary principles of agency, and the liability of the joint adventurers and their insurance companies for workmen’s compensation to such employee is joint and several, (citation omitted)
Id. at 18, 491 S.W.2d at 779.
For the reasons set out above, we conclude the dual persona concept is inapplicable to the circumstances described in this case. Therefore, we affirm.
Brown, J., not participating.
Apparently the majority court in Lewis v. Gardner Engineering Corp., 254 Ark. 17, 491 S.W.2d 778 (1973), had the opportunity to recognize the “dual capacity” doctrine, but failed to discuss or apply it. See Fogleman, J. dissenting, Lewis, 234 Ark. at 20, 491 S.W.2d at 780. | [
-80,
124,
-35,
-68,
26,
96,
-70,
-70,
101,
-94,
37,
119,
-17,
-34,
5,
45,
-5,
115,
-58,
107,
-13,
-93,
3,
64,
-42,
-97,
-7,
-47,
24,
-18,
-30,
-52,
-52,
48,
-114,
-59,
-26,
-110,
-55,
20,
102,
-128,
-118,
-32,
121,
64,
52,
106,
-44,
95,
113,
-98,
59,
44,
24,
78,
108,
42,
107,
-68,
-16,
-72,
-113,
-123,
79,
16,
35,
4,
-71,
111,
-32,
14,
26,
57,
8,
-56,
50,
-74,
-46,
-12,
75,
-69,
-128,
98,
99,
2,
17,
-25,
-12,
40,
30,
-81,
31,
-123,
-79,
25,
11,
11,
-107,
29,
120,
38,
6,
124,
-26,
21,
94,
53,
19,
-90,
-58,
-78,
-19,
108,
-10,
-109,
-17,
-95,
49,
80,
-34,
-86,
92,
7,
122,
-109,
14,
-48
] |
Steele Hays, Justice.
This case is the product of a consolidation of several suits spawned by a series of collisions involving eleven motor vehicles. The collisions occurred on the night of June 8, 1988, on Interstate 40 adjacent to farms of Johnny “Bo” Dougan and William J. Bevis in eastern Pulaski County. Earlier that day Dougan and Bevis had set fire to wheat stubble on fields lying north of the interstate. As east bound vehicles approached mile marker 162 they encountered dense smoke limiting visibility to a few feet. The first vehicles to encounter the smoke were two tractor trailers, one belonging to John Cheeseman Trucking, Inc., driven by John Hofstetter, and the other belonging to Mallinckrodt, Inc., leased to Sunbelt Transportation, Inc., and driven by Morgan Clay. Hofstetter was in the left lane and Clay in the right lane, slightly behind. Both drivers stopped abruptly, attributing a total loss of vision to the density of the smoke. The ensuing collisions resulted in four deaths, a number of injuries and extensive property damage. Ryder Truck Rental, Inc., David Newman and Richard Pitrolo filed suit against The Kroger Company and Johnny “Bo” Dougan. John Cheeseman Trucking, Inc., Hofstetter and others intervened or were added by third party complaint until some twenty parties and multiple cross claims were involved.
The trial court ordered a bifurcated trial, liability to be determined in one trial and damages in another. The liability issues were submitted on interrogatories, in response to which the jury determined that the negligence of John Hofstetter and John Cheeseman Trucking, Inc. was fifty percent and the negligence of Morgan Clay, Sunbelt Transportations, Inc. and Mallinckrodt, Inc. was fifty percent, thus contributing in equal parts to proximately cause damage to Ryder Truck Rental, David Newman, Richard Pitrolo, Estate of J.W. Stocks, Estate of Bobby Woodruff, The Kroger Company, Jerry Odom, James Guy Smith, Jr., Glen McClendon Trucking, Inc., Estate of Hollis Brown, Elizabeth Kittle and Tammy Bullock.
Pursuant to the verdict, the trial court entered a judgment, finding that the defendants adjudged to be liable in the action should not be burdened with the expense of trying the issue of damages if, in fact, there was reversible error in the liability phase of the case. Citing judicial economy and the absence of any just reason for delay, the judgment stated it was a final judgment pursuant to ARCP Rule 54(b). Cheeseman, John Hofstetter, Mallinckrodt, Inc., Morgan Clay and Sunbelt have appealed.
We cannot address the arguments raised on appeal because the judgment appealed from, its recitations notwithstanding, is not a final judgment. It merely determines which parties were damaged, which parties were negligent and the degree to which that negligence contributed to the occurrence. Rule 2 of the Rules of Appellate Procedure lists nine types of judgments, orders or decrees from which an appeal may be taken. All require finality in some respect and an order which merely determines liability and defers a determination as to the damages is not final. Malone & Hyde, Inc. v. West & Co. of L.A., Inc., 300 Ark. 435, 780 S.W.2d 13 (1989); Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987). We have said repeatedly, for an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Roberts Enterprises, Inc. v. Arkansas State Highway Commission, 277 Ark. 25, 638 S.W.2d 75 (1982). Nor does Rule 54(b) obviate the requirement of finality as to some aspect of the litigation. It merely provides that a judgment which is final as to less than all of the litigants or the claims, is subject to appeal in accordance with the conditions recited in the rule. That, of course, is not the situation here presented.
We addressed the appealability of bifurcated trials as to issues of liability and damages in the case of Mueller, et al. v. Killam, et al., 295 Ark. 270, 748 S.W.2d 141 (1988):
The decree specified that “[t]his order shall constitute a final appealable order of the Court. . . .” We hold to the contrary and dismiss this appeal because the decree was not one from which an appeal may be taken under Ark. R. App P. 2 and Ark. R. Civ. P. 54(b).
Other courts, state and federal, have also held that Rule 54(b) does not provide a mechanism for appeal from bifurcated trials of liability/damages issues. Kaszuk v. Bakery & Confectionery Union & Industry International Pension Fund, 791 F.2d 548 (7th Cir. 1986); Williams v. St. Louis Diecasting Corp., 611 F.2d 1223 (8th Cir. 1979); Ball Corp. v. Loran, 42 Colo. App. 501, 596 P.2d 412 (1979); Harms, Inc. v. Tops Music Enterprises, Inc., 160 F. Supp. 77 (C. Cal. 1958).
Here, some parties and some claims were dismissed by the order entered pursuant to the jury’s verdict, but those dismissals are not germane to the issues presented to us for review and not properly cognizable under Rule 54(b).
While it may seem that judicial economy would be served by an interlocutory appeal from a bifurcated trial of the liability/ damages issues, in reality the reverse is true because such procedure invites two appeals, whereas the requirement of finality assures only one. Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984). Harms, Inc. v. Tops Music Enterprises, Inc., supra.
The parties have not raised the issue of the appealability of this judgment, nevertheless it is our duty to determine that this court has jurisdiction. Roy v. International Multifoods Corp., 268 Ark. 958, 598 S.W.2d 129 (1980). Mueller, et al. v. Killam, supra.
Appeal dismissed.
Glaze, J., not participating. | [
-16,
111,
-8,
12,
12,
98,
56,
-71,
117,
-29,
117,
83,
-113,
-21,
5,
33,
-26,
29,
85,
43,
-9,
-94,
23,
18,
-45,
39,
-87,
-49,
-102,
75,
37,
-41,
78,
64,
-118,
93,
-92,
-56,
-59,
94,
-50,
12,
-69,
-8,
89,
18,
-78,
-6,
22,
71,
49,
14,
-6,
44,
17,
-57,
73,
44,
-5,
-88,
-61,
113,
-32,
5,
119,
18,
-95,
-128,
-100,
9,
-54,
25,
-112,
51,
-72,
-88,
114,
-90,
-48,
-28,
33,
-119,
12,
-90,
103,
1,
21,
-27,
-20,
-104,
38,
126,
29,
-92,
-104,
56,
25,
2,
-97,
29,
90,
23,
22,
-6,
-3,
69,
29,
104,
-123,
-58,
-80,
-95,
-113,
-80,
-108,
57,
-21,
7,
52,
115,
-51,
-2,
87,
69,
112,
-33,
71,
-122
] |
Robert L. Brown, Justice.
The appellants in this case, Charles T. Hodges and Ruby P. Hodges, who were plaintiffs below in this tort action, raise one point on appeal. They contend that the trial judge erred in denying their motion for a new trial and in finding that the jury verdict was not clearly against the preponderance of the evidence.
We disagree and affirm the trial judge’s decision.
This case concerns a traffic accident between appellant Ruby P. Hodges, who was driving a Chevrolet Caprice, and appellee Farris Johnson, who was driving a three-axle dump truck owned by appellee Jet Asphalt and Rock Company, Inc. The accident occurred on August 31, 1988, at approximately 3:30 p.m. on U.S. Highway 79 within the city limits of Stephens, Arkansas. Hodges, with her two-year-old son in the passenger seat, was making a left turn across the south-bound lane into her driveway when her car was struck by Johnson’s dump truck. Johnson was attempting to pass Hodges in the left lane and had signaled with his blinker light, but he did not sound his horn while passing. Both Hodges and her son sustained injuries.
Hodges filed a negligence action against the appellees, complaining of physical and emotional injuries and asking for damages of $500,000 against each appellee. Her husband joined her in the complaint, seeking $50,000 for loss of consortium. The couple asked for $100,000 for physical and emotional injuries to their son.
The case was presented to the jury on October 3, 1989, on interrogatories without objection by the appellants. In two separate interrogatories the jury answered that it had found by a preponderance of the evidence that Johnson and Hodges were each negligent and that each person’s negligence proximately caused damages. The third interrogatory and answer read:
Interrogatory No. 3
If you have answered both Interrogatory No. 1 and Interrogatory No. 2 “Yes,” then answer this Interrogatory:
Using 100% to represent the total responsibility of the occurrence and any injuries or damages resulting from it, apportion the responsibility between the parties whom you have found to be responsible.
Answer: Farris Johnson 15%
Ruby Hodges 85%
The jury then in separate interrogatories stated these amounts for damages sustained: $75,000 by Ruby Hodges, $10,000 by her husband, and $10,000 by their son.
Judgment, which awarded $ 10,000 to the son but denied any recovery to Hodges or her husband, was entered by the trial court on October 23,1989. The appellants filed a motion for new trial, asserting that the verdict was both too small and clearly against the preponderance of the evidence. The trial court denied that motion. The $10,000 award in favor of the son has been paid and is not part of this appeal.
The appellants’ principal argument on appeal is that the trial judge erred in refusing to grant'a new trial, but underlying that is their contention that the jury was wrong in its assessment of fault. Particularly, the appellants contend that Hodges could not have been eighty-five percent negligent under the evidence presented in this case, and especially because the lead vehicle has the superior right of way. For the appellants to take anything under our comparative fault-statute, the appellees must be more at fault than the appellants. See Ark. Code Ann. § 16-64-122 (1987).
Our test for reviewing the denial of a motion for new trial, however, is whether there is any substantial evidence to support the jury verdict. See Ferrell v. Southern Farm Bureau Casualty Insur. Co., 291 Ark. 322, 724 S.W.2d 465 (1987). In determining the existence of substantial evidence, we must view the evidence in the light most favorable to the appellees. See Egg City of Arkansas, Inc. v. Rushing, 304 Ark. 562, 803 S.W.2d 920 (1991). Substantial evidence compels a conclusion one way or the other and is more than mere speculation or conjecture. See Sander v. Walker, 298 Ark. 374, 767 S.W.2d 526 (1989).
One major bone of contention at trial was whether Hodges made a left turn signal prior to turning. She testified that she did, and her expert testified that the filament in the left-turn blinker bulb had oxidized, which meant it was on at the time it was broken. Johnson said he did not see either a blinker signal or brake lights; nor did a third-party witness traveling south in her car toward the two vehicles. An expert for the appellees testified that the bulb for the blinker and the brake were the same and the oxidized filament could just as well have been the brake-light filament. The appellants’ expert also admitted this. The jury apparently chose to believe the appellees on the issue of Hodges’ failure to signal. There was testimony, too, that Hodges had worked the 11:00 p.m. to 7:00 a.m. shift at a convenience store the night before and had taken only a two-hour nap prior to the time that the accident occurred. Hodges also testified that she did not see Johnson’s truck until just before the collision and never saw the third-party vehicle.
The jury evaluated and weighed this testimony, and other testimony as well, as it was required to do, and then made its decision. It was, of course, within the jury’s province to believe or disbelieve the testimony of any witness. See Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1990). We hold that the evidence which was presented to the jury on the appellees’ behalf was substantial. Accordingly, the trial court was correct in denying the motion for new trial.
Affirmed. | [
-16,
106,
-32,
-68,
25,
99,
11,
10,
81,
-95,
-20,
19,
-81,
-18,
85,
107,
-21,
61,
-15,
43,
-41,
-93,
7,
-78,
-70,
-77,
107,
-58,
-66,
-53,
-28,
-10,
79,
112,
-54,
5,
34,
74,
-59,
88,
-58,
22,
-71,
116,
89,
-126,
-76,
58,
64,
7,
-79,
-113,
-34,
46,
30,
-57,
44,
42,
123,
-87,
-48,
113,
-124,
5,
79,
4,
-79,
-60,
-98,
1,
88,
43,
-44,
-79,
40,
-88,
114,
-90,
-126,
-12,
105,
-103,
12,
-92,
103,
1,
5,
-59,
-4,
-120,
38,
-74,
15,
-89,
-70,
88,
75,
9,
-73,
21,
120,
86,
12,
122,
-7,
93,
89,
104,
-125,
-49,
-108,
-111,
-19,
53,
28,
50,
-21,
-123,
50,
101,
-49,
-14,
92,
5,
114,
-101,
95,
-74
] |
Donald L. Corbin, Justice.
Appellant, Raymond Sanders, was convicted of capital murder by a Hot Spring County jury on March 17, 1990. He appeals from the judgment sentencing him to life imprisonment in the Arkansas Department of Correction. He raises five issues as grounds for reversal: there was not sufficient evidence of the underlying felony to support a capital murder conviction; the trial court erred in denying his motion for continuance, in denying his motion to suppress in-custody statements, in refusing to admit testimony as an exception to the hearsay rule, and in refusing to give a tendered jury instruction. We find the arguments regarding the in-custody statements and the tendered jury instruction meritorious, and reverse the judgment of conviction. We discuss appellant’s other asserted issues only to the extent necessary to avoid error if the case is retried.
I.
THE TRIAL COURT ERRED IN THAT THERE WAS INSUFFICIENT EVIDENCE OF ROBBERY AS THE UNDERLYING FELONY TO SUPPORT A CAPITAL MURDER CONVICTION.
Appellant did not move for a directed verdict at the close of the case. Ark. R. Crim. P. 36.21 (b) provides that a failure to move for a directed verdict at both the conclusion of the evidence presented by the prosecution and at the close of the case, constitutes a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. Appellant, by failing to move for a directed verdict at the close of the case, waived any challenge to the sufficiency of the evidence. See also Hayes v. State, 298 Ark. 356, 767 S.W.2d 525 (1989).
II.
THE TRIAL COURT ERRED WHEN IT REFUSED TO ADMIT INTO EVIDENCE PROFFERED TESTIMONY OF KENNETH TRAYLOR AS AN EXCEPTION TO THE HEARSAY RULE.
Appellant sought to admit into evidence, as an exception to the hearsay rule under Rule 804(b)(3), statements his co-defendant, Byron Hopes, allegedly made to Kenneth Traylor sometime in August 1989. The trial judge in chambers heard the testimony of Mr. Traylor, which was to the effect that Mr. Hopes sometime around August of 1989 approached him about robbing the same bootlegging operation that was the target of the robbery involved in this murder trial. The court also heard the testimony of Byron Hopes in chambers; Mr. Hopes, in exercising his fifth amendment privileges, testified only for the purpose of the hearing and only for the limited question of whether or not he ever had a conversation with Mr. Traylor concerning robbing the deceased. Mr. Hopes denied having ever had such a conversation with Mr. Traylor. The court ruled that portion of Mr. Traylor’s testimony inadmissible, stating that “Number 1, the witness is not unavailable; Number 2, if the. witness were unavailable, the testimony offered by Kenneth Traylor is not sufficiently reliable to allow it as an exception to the hearsay rule.”
The relevant portion of Ark. R. Evid. 804(b) provides the following is not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability. . .that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
For the alleged August 1989 statement of Byron Hopes, the declarant, to be admissible through the testimony of Kenneth Traylor it must be shown that: 1) the declarant is unavailable; 2) the statement at the time of its making “so far tended to subject him to criminal liability that a reasonable person in his position would not have made the statement unless he believed it to be true; and 3) corroborating circumstances clearly indicate the trustworthiness of the statement. See United States v. Riley, 657 F.2d 1377 (1981); Williford v. State, 300 Ark. 151, 777S.W.2d 839 (1989). Absent an abuse of discretion, this court will not reverse a trial court’s ruling on the admissibility of a statement against penal interest. Welch v. State, 269 Ark. 208, 599 S.W.2d 717, cert. denied, 449 U.S. 996 (1980).
The court when making its ruling on this matter said:
[E]ven if Mr. Hopes were unavailable as a witness, that that testimony would not be admissible for the reason that it is too remote in time; for the reason that it is not sufficiently established as reliable; for the reason that it is testimony offered by Kenneth Traylor, who is a penitentiary inmate doing sixty years, having been recently convicted in this court as an habitual offender and who had three or more prior offenses which were convictions from this court, all of which the court takes judicial notice.
Whether Byron Hopes was unavailable for purposes of considering the admissibility of his statement, or whether it was “against his penal interest,” clearly the trial court found the corroborating circumstances did not indicate the requisite trustworthiness of the statement. Based on the foregoing, we cannot say the trial court abused its discretion in now allowing the statement as an 804(b)(3) exception to the hearsay rule.
III.
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION TO SUPPRESS APPELLANT’S IN-CUSTODY STATEMENTS.
Investigators from the Hot Spring County Sheriffs Department stopped appellant and his co-defendant, Byron Hopes, near the scene of the shooting on the afternoon of December 31,1989. One of the investigators recognized appellant as the subject of an outstanding arrest warrant for felon in possession of a firearm. Appellant was arrested on the outstanding warrant and Mr. Hopes was arrested for drug paraphernalia and having alcohol in the car. Both men were taken to the Hot Springs County Sheriffs Office where they were jailed. That same afternoon appellant was taken to Investigator Henry Efird’s office, where he signed a statement of rights and gave a statement at 4:16 p.m. On January 2,1990, at 6:5 9 p.m. appellant signed another statement of rights, and at 9:00 p.m. gave another statement.
Appellant in the December 31,1989 statement said, “get the Sheriff and the Chief in here man and I want to tell you something man really heavy man.” He continued by saying that Mr. Hopes had done something serious. He also mentioned something about a murder weapon. When Investigator Efird questioned appellant regarding the murder and the gun, appellant replied, “[m]an, I want my New Years man before I do all this.” Investigator Efird replied, “Raymond if you can’t help me man I’m not fixing to call the Sheriff in here.” During the course of the interview, Sheriff Cook joined them. Appellant told Investigator Efird and Sheriff Cook that Byron Hopes told him he killed somebody.
The following is a portion of the interview:
Cook: Where is that gun at?
Sanders: _didn’t say anything about a New Years, will you try to let me have a New Years?
Cook: Well, I don’t know what I can do right now.
Sanders: I bet I’m going to have to be locked up.
Cook: I don’t know, where’s the damn gun. If we could find that gun we might do something about —
Sanders: I know where he lives man, I, you know, I’m going to the pen the 12th man for 20 or 30 years.
Cook: I don’t know about that. I doubt that. We can solve something, that he’s hurt somebody it would be to your advantage, I’ll guarantee it.
Sanders: Can I have my New Years?
Cook: We’ll talk to you about that.
In the remainder of this statement appellant relates information about his alleged conversation with Mr. Hopes.
The interview conducted January 2, 1990, began with Investigator Efird telling appellant they were going to talk “about a homicide involving Mr. Byron Hopes and yourself. The killing of a Frederick LaSalle.” The following is a portion of that interview:
Efird: Now, you told me that you wanted a New Year’s furlough.
Sanders: Right, I did.
Efird: And that if we would give you a New Year’s furlough, you could put us on to where a murder weapon was?
Sanders: Right where I believed —
Efird: Where you believed the murder weapon was?
Sanders: Right.
Appellant claims the two statements were not knowingly, voluntarily, and intelligently made, and, therefore, should have been suppressed. He contends that when he made the first statement he was under the influence of alcohol and drugs, and that Sheriff Cook and Investigator Efird induced him into making it by promising him his New Year’s Eve in exchange for the information.
Custodial statements are presumed to be involuntary. Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990). On appeal the burden is on the state to show that the confession was made voluntarily, freely, and understanding^, without hope of reward or fear of punishment. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985). A statement induced by fear or hope of reward is not voluntary. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). In determining whether a custodial statement is voluntary, we make an independent review of the totality of the circumstances and will reverse only if the trial court’s findings are clearly against the preponderance of the evidence. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). The totality is subdivided into two main components, first, the statement of the officer and second, the vulnerability of the defendant. Davis, supra.
Looking at the statements of the officers, it appears appellant gave his first statement in anticipation of being rewarded with a “New Year’s furlough.” Officer Efird in the second statement even referred to that part of the first interview involving a furlough in exchange for information about where the murder weapon could be found. Appellant’s first statement appears to have been induced by a hope of reward. Therefore, it was not voluntary and should have been suppressed.
IV.
THE TRIAL COURT ERRED IN REFUSING APPELLANT’S TENDERED JURY INSTRUCTION AMCI 1502 WHICH SET OUT THE FELONY MURDER PROVISION OF THE FIRST DEGREE MURDER STATUTE.
Appellant and Byron Hopes on January 3, 1990, were charged with capital murder, a violation of Ark. Code Ann. § 5-10-101 (Supp. 1989), in that on December 31, 1989, they did unlawfully commit aggravated robbery, and in the course of and in furtherance of said felony, or in immediate flight therefrom, they caused the death of a person under circumstances manifesting extreme indifference to the value of human life; the defendants allegedly shot Frederick M. LaSalle, Jr. at least four times, beat and killed him for the purpose of stealing money, whiskey, and beer, and thereafter did commit the theft of property. While the court at trial instructed the jury on both capital murder and first degree murder, it refused to give appellant’s tendered first degree murder instruction. The following, Court’s Instructions Nos. 16, 19, and 20, are the instructions which were given on capital murder and first degree murder, respectively:
COURT’S INSTRUCTION NO. 16
(AMCI 1501)
Raymond C. Sanders is charged with the offense of Capital Murder. To sustain this charge, the State must prove the following things beyond a reasonable doubt.
First: That Raymond C. Sanders acting alone or with one or more persons committed the crime of robbery, and;
Second: That in the course of, and in furtherance of that crime, Raymond C. Sanders or a person acting with him, caused the death of Frederick LaSalle under circumstances manifesting an extreme indifference to the value of human life.
COURT’S INSTRUCTION NO. 19
(AMCI 302)
If you have a reasonable doubt of the defendant’s guilt on the charge of Capital Murder, you will then consider the charge of Murder in the First Degree.
COURT’S INSTRUCTION NO. 20
(AMCI 1502)
To sustain this charge, the State must prove beyond a reasonable doubt:
That Raymond C. Sanders or an accomplice caused the death of Frederick LaSalle with the premeditated and deliberated purpose of doing so.
The following is appellant’s proffered instructions regarding first degree murder:
DEFENDANT’S REQUESTED INSTRUCTION NO. 1
(AMCI 1502)
Raymond Sanders is charged with the offense of murder in the first degree. To sustain this charge, the State must prove the following things beyond a reasonable doubt:
First: That Raymond Sanders acting alone or with one or more persons committed or attempted to commit robbery; and
Second: That in the course of and in furtherance of that crime or attempt or in immediate flight therefrom, Raymond Sanders or a person acting with him caused the death of Frederick LaSalle under circumstances manifesting extreme indifference to the value of human life.
Appellant argues the trial court erred in refusing to give his requested instruction, AMCI 1502, because he was never charged with capital murder under the premeditation and deliberation provision but only under the felony provision. He contends the appropriate lesser included offense to capital felony murder is first degree felony murder. We agree.
When there is a rational basis for a verdict acquitting a defendant of the offense charged and convicting him of the included offense, an instruction on a lesser included offense should be given, and it is reversible error to fail to give such instruction when warranted. Moore v. State, 280 Ark. 222, 656 S.W.2d 698 (1983).
This court, in Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990), was faced with a similar situation. The appellant in Hill was charged with violations of sections 5-10-101 (capital felony murder); 5-12-102 (Supp. 1989) (robbery); and 5-36-103 (Supp. 1989) (theft of property). Prior to the submission of the case to the jury, the appellant tendered a jury instruction on. felony murder in the first degree as a lesser included offense of capital felony murder. The proffered instruction tracked the provisions of Ark. Code Ann. § 5-10-102(a)(1) (Supp. 1989), the first degree felony murder statute. However, the instruction on first degree murder which the court gave permitted the jury to convict the appellant of first-degree murder upon a finding of “premeditation and deliberation,” and followed Ark. Code Ann. § 5-10-102(a)(2) (1987) The appellant was convicted of first-degree murder, acquitted of the charge of robbery, and found guilty of misdemeanor theft of property. We found the proper instruction was refused and stated:
Though Ark. Code Ann. § 5-10-101 and § 5-10-102(1) admittedly overlap, this circumstance does not render either statute constitutionally suspect in its application. Penn v. State, 284 Ark. 234, 681 S.W.2d 304 (1984); Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981). Indeed, we have said that when capital felony murder is charged under Ark. Code Ann. § 5-10-101, first-degree murder is a “lesser included offense” because the same evidence used to prove the former of necessity proves the latter. Therefore, an instruction on first-degree murder is required. Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986). The proper instruction in this instance would have been the first degree felony murder instruction as authorized under the provisions of Ark. Code Ann. § 5-10-102(1)—the very form of instruction tendered by the appellant and refused by the court.
Hill, 303 Ark. at 468-69, 798 S.W.2d at 69. Because the appellant was convicted of first degree murder based on a finding of a premeditated and deliberated purpose, a crime with which he had not been charged, we found the omission of the proper instruction to have been prejudicial and violative of his due process rights.
In the case at bar, as in Hill, supra, the proper instruction, appellant’s tendered instruction tracking section 5-10-102(a)(1), was refused. That being determined, the next question to be addressed is whether the omission was prejudicial and violative of appellant’s due process rights. Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).
As stated before, capital murder, section 5-10-101(a)(1), and first degree murder, section 5-10-102(a)(1), are proven by the same evidence, Hill, supra, and where the accused is charged with homicide in the course of committing one of the felonies named in section 5-10-101 (a)(1), the judge must also instruct on first degree murder, section 5-10-102(a)(1). Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758(1986). In addition, we have held in cases where the statues overlap and both instructions are required, the jury may refuse consideration of both the death penalty and life without parole by returning a guilty verdict as to the charge of murder in the first degree. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983); Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981). The trial court, by refusing to give the tendered instructions, took this option away from the jury. Although the jury convicted appellant of capital murder, it chose the lesser of the two possible sentences. Because both capital murder and first degree murder in this situation require proof of the same elements, there is a rational basis for a verdict acquitting appellant of capital murder and convicting him of first degree murder; had the third option been available to the jury, the possibility exists that it would have convicted appellant of first degree murder.
Based on the foregoing, we believe appellant was prejudiced by the omission of the proper instruction. His judgment of conviction must, therefore, be reversed and the case be remanded for a new trial.
Hays, Glaze, and Brown, JJ., concur in part; dissent in part.
Ark. Code Ann. § 5-10-102(a)(2) was amended by Act 856 of 1989 to eliminate any “premeditated and deliberated” purpose. | [
48,
-18,
-91,
62,
11,
97,
58,
24,
64,
-21,
118,
-45,
37,
-34,
13,
121,
-77,
91,
117,
105,
86,
-73,
23,
65,
-13,
-77,
-45,
-41,
-65,
77,
-92,
-76,
76,
96,
-54,
-63,
-26,
-128,
-121,
90,
-18,
13,
-72,
86,
112,
80,
58,
46,
80,
15,
33,
-82,
-93,
41,
22,
-53,
9,
40,
75,
-83,
72,
25,
-38,
7,
-7,
49,
-77,
-122,
-104,
6,
-8,
60,
-100,
-79,
0,
104,
115,
-74,
-122,
-44,
105,
-103,
44,
98,
99,
3,
29,
-19,
-88,
-119,
38,
63,
-115,
-89,
-38,
33,
73,
73,
-106,
-65,
106,
20,
14,
-8,
108,
-35,
93,
108,
14,
-50,
-108,
-79,
41,
56,
-122,
82,
-37,
1,
48,
117,
-35,
-10,
93,
7,
113,
-37,
-58,
-43
] |
Per Curiam.
Appellant, Earl Ray Neighbors, by his attorney, has filed for a rule on the clerk.
His attorney, J.F. Atkinson, Jr., admits that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
-76,
-19,
-7,
-100,
10,
-31,
50,
56,
94,
-23,
-77,
83,
-81,
-54,
20,
121,
-13,
111,
21,
123,
-115,
-78,
119,
65,
38,
-77,
-29,
-41,
61,
127,
-10,
-5,
72,
49,
-54,
-107,
102,
-120,
-123,
84,
-122,
13,
41,
-28,
-15,
64,
48,
41,
-48,
15,
49,
62,
-29,
46,
61,
67,
-24,
44,
-35,
9,
-48,
-15,
-102,
13,
127,
20,
-109,
-58,
-104,
-123,
-40,
106,
-68,
57,
34,
-24,
48,
-90,
6,
116,
15,
56,
8,
102,
102,
49,
-39,
-17,
-120,
-120,
6,
58,
-99,
-90,
-101,
105,
73,
-67,
-106,
-97,
57,
112,
7,
124,
101,
-60,
91,
44,
11,
-49,
-12,
-109,
-97,
112,
-116,
10,
-22,
1,
18,
49,
-49,
-26,
-36,
71,
19,
-109,
-98,
-92
] |
David Newbern, Justice.
This is a taxpayer’s suit. The appellant, James Keeton, challenged the issuance of bonds by Pope County. The bonds were issued to raise money for renovation of the county courthouse. The ballot title by which the bond issue was presented to the people for approval referred to using money left over from a previous jail construction bond issue in conjunction with the money to be raised by issuance of new bonds. Keeton contends it was illegal to use the leftover jail money. He also contends it was illegal for the County to acquire land for and construct a parking lot for the courthouse because the voters were not apprised of that purpose by the ballot title. There was no mention of a parking lot in the ordinance submitting the question to election nor in the ballot. The chancellor held that the transfer of funds was proper and the parking lot was included. No question was raised, either to the chancellor or in this appeal, whether the challenge should have occurred prior to the election in which the voters approved the bond issue. We hold it was improper to use the jail bonds money for courthouse construction because, to the extent that issue was at all presented to the voters, it was presented improperly. We also hold that the record before us does not support the chancellor’s conclusion that the parking lot was authorized.
Emergency Ordinance No. 88-0-51 was presented on the General Election Ballot for Pope County, November 8,1988, as follows:
An ordinance submitting to the voters of Pope County, Arkansas, the question of issuing bonds under Amendment No. 62 to the Constitution of the State of Arkansas for the purpose of financing a portion of the cost of courthouse improvements (with another portion of the cost to be paid from excess proceeds of the tax levied to pay a county jail bond); selecting an underwriter for the courthouse bonds; employing bond counsel; prescribing other matters pertaining thereto; and declaring an emergency.
An issue of capital improvement bonds of Pope County in the maximum principal amount of $2,800,000 for the purpose of financing a part of the cost of the courthouse improvements to be payable from a continuing annual ad valorem property tax to be levied at the maximum rate of 0.6 mill on the dollar of the assessed valuation of taxable property in the county.
1. The jail money
Money raised by issuance of bonds for a public project may not be used for any purpose other than to retire the bonds or to pay interest and expenses directly connected with the bonds. That was our interpretation of Ark. Const. amend. 17 pursuant to which the jail construction bonds were issued. Morton v. Baker, 254 Ark. 444, 494 S.W.2d 122 (1973); Searcy v. Headlee, 222 Ark. 719, 262 S.W.2d 288 (1953); Stuttgart v. McCuing, 218 Ark. 34, 234 S.W.2d 209 (1950). The jail project was completed, and the bondholders were repaid by September 7,1988. Approximately $250,000 remained unspent.
Amendment 17 was repealed by Ark Const. amend. 62, passed in 1984, which is now the general constitutional authority governing issuance of local capital improvement bonds. Amendment 17 allowed only one purpose for bond issuance to be presented to the voters. Amendment 62, § 1.(a), provides:
The legislative body of a municipality or county, with the consent of a majority of the qualified electors voting on the question at an election called for that purpose, may authorize the issuance of bonds, to bear interest at a rate not to exceed two percent (2%) per annum above the Federal Reserve Rate at the time of the election authorizing the bonds, for capital improvements of a public nature, as defined by the General Assembly, in amounts approved by a majority of those voting on the question either at an election called for that purpose or at a general election. The General Assembly shall prescribe a uniform method of calling and holding such elections and the terms upon which the bonds may be issued. If more than one purpose is proposed, each shall be stated separately on the ballot. The election shall be held no earlier than thirty (30) days after it is called by the legislative body. The tax to retire the bonds may be an ad valorem tax on real and personal property. Other taxes may be authorized by the General Assembly or the legislative body to retire the bonds.
The parties agree that if the voters consent to it money from one public project may be transferred to another. While the only authority cited for that proposition is an obiter dictum in Searcy v. Headlee, supra, we do not quarrel with it. The question here, however, is whether the favorable response of the voters to the ballot established that consent.
If two purposes were stated on the ballot, that is, one to transfer the leftover jail money and one to issue bonds raising the additional money needed for the renovation, then it could be argued that Amendment 62 invalidated the ballot item altogether and both the money transfer and the courthouse bond issue would have been invalid. Keeton does not argue for that result. Rather, his argument, with which we agree, is that the parenthetical statement that the jail money is to be used simply did not constitute the statement of a “purpose” of the ballot. It did not inform the voter that he or she was deciding that issue, and thus it did not accomplish the transfer.
Keeton correctly notes that a parenthetical statement, by dictionary definition, is “A word, phrase, or sentence, by way of comment or explanation, inserted in, or attached to, a sentence which would be grammatically complete without it.” Black’s Law Dictionary, p. 1270, (Fourth ed. 1957). Even if the reference to the jail money had not been parenthetical, however, we could not conclude that a voter looking at the language would have known that a purpose of the ballot was to determine whether the money should have been transferred. While we have a duty to sustain an election where the information to the voters is sufficient to enable them to cast their ballots with fair understanding of the issue presented, Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1982), we have no such duty where the voters do not have such information. We hold that the election did not authorize the transfer.
2. The parking lot
Ordinance No. 88-0-51 as passed by the Pope County Quorum Court contained language more specific than that in the ballot quoted above. The Ordinance described the courthouse improvements as follows: “acquire a site for and construct and equip a new building to house courts and public offices and renovate the existing Pope County Courthouse.” The County has acquired land for and constructed a parking lot as part of the project. Keeton argues the parking lot was not authorized by the language of the Ordinance. The County contends it was authorized because it was incidental to a courts building and no separate reference to it was necessary.
Keeton cites only Neal v. City of Morrilton, 192 Ark. 450, 92 S.W.2d 208 (1936). In that case we held that a complaint stated a cause of action in alleging that the City had exceeded its authority under Ark. Const. amend. 13, when it issued bonds for construction and maintenance of a hospital. Amendment 13 only permitted bonds to be issued for construction and equipment.
The County cites only Davis v. Waller, 238 Ark. 300, 379 S.W.2d 283 (1964). There we held that Amendment 17 permitted, by implication, bond money to be spent on equipping a hospital even though it was not mentioned in Amendment 25 pursuant to which a hospital could be constructed with bond money. We wrote that a hospital consists of more than a building, and equipment was essential to construction.
In Railey v. City of Magnolia, 197 Ark. 1047, 126 S.W.2d 273 (1939), we reached the same conclusion as in the Davis case. We held that approval by the voters of construction of a hospital was sufficient to imply authority to spend bond money for hospital equipment because the equipment was essential to the erection of a functioning hospital.
While these cases do not directly answer the question before us, we note that in the Davis case we characterized the issue as whether the equipment was “essential” to the hospital construction rather than “incidental.” In the Railey case we likewise noted that “A naked building would not be a hospital. It would require the essential equipment to make it such, and authorization to erect a hospital would import authority to equip it.”
The glaring difference between this case and the Davis and Railey cases is the fact that in those cases there was no evidence that the respective county and municipality already had hospital equipment on hand, while here it was clear that there was already a parking lot across the street from the courthouse for use of courthouse patrons. The lawyer who counseled the County on the bond issue, and who prepared the Ordinance but not the ballot title, testified he had been unaware of the existence of a parking lot for courthouse use across the street from the existing building. There was no other testimony on the issue.
It is tempting to say that in this day and age we could take judicial notice that parking space is an essential ingredient of the construction of any public facility and thus the requirement of Ark. Code Ann. § 14-164-308 (1987) that the purpose of the bond issue be stated in the ordinance was satisfied by implication. Even though Ark. Code Ann. § 14-164-304 (1987) requires that we construe liberally the requirement of § 14-164-308, approval of the County’s action, given the facts of this case, would make a mockery of the requirement that voters be informed of what they are asked to do. See Vandiver v. Washington County, supra.
It would have been very easy for the Pope County Quorum Court to have included the new parking facility in both the ballot and the Ordinance to which an inquisitive voter could have referred. We hold that it should at least have been a part of Ordinance No. 88-0-51 by which the Quorum Court decided to seek the approval of the voters for the project.
Reversed and Remanded.
Brown, J., concurs.
Hays and Glaze, JJ., concurring in part and dissenting in part.
Corbin, J., dissents. | [
84,
-20,
-44,
126,
11,
0,
90,
-102,
67,
-93,
100,
83,
-87,
74,
16,
27,
-93,
127,
101,
120,
69,
-73,
119,
98,
-14,
-70,
-37,
-43,
-80,
77,
-28,
-105,
24,
53,
-54,
85,
70,
-26,
-27,
94,
78,
-128,
-86,
108,
81,
-64,
52,
47,
66,
3,
117,
-123,
-30,
60,
16,
107,
77,
46,
89,
45,
80,
-5,
-67,
-115,
95,
7,
-95,
20,
-104,
-127,
-40,
44,
-104,
49,
0,
-22,
115,
-90,
-122,
116,
79,
-103,
40,
98,
98,
0,
37,
-9,
-84,
-119,
30,
-33,
-115,
-89,
-106,
121,
75,
14,
-74,
23,
123,
86,
-122,
-2,
-89,
-107,
87,
110,
5,
-50,
-34,
-77,
77,
-8,
-124,
67,
-61,
33,
112,
97,
-50,
-26,
94,
87,
56,
-37,
-117,
-11
] |
David Newbern, Justice.
Cantrell Marine, Inc., the appellee, sought from appellant, Arkansas Motor Vehicle Commission, a motor vehicle dealer license pursuant to Act 388 of 1975 as amended by Act 65,§7, of 1989. Cantrell Marine is a boat dealer. Cantrell Marine’s application was returned with a letter from the Commission’s Director stating, “in my opinion a marine dealer does not qualify as a Motor Vehicle Dealer, as found under A.C.A. 23-112-103(1) and (2).” The cited statutory subsections codify the Act’s definitions of “motor vehicle” and “motor vehicle dealer.”
Nothing of record suggests Cantrell Marine sought a hearing before the Commission or that the application was even submitted to the Commission for decision. Rather, Cantrell Marine filed its complaint in the Chancery Court for declaratory judgment that the Commission erred in refusing the license but that if the Commission’s action was in accordance with the provisions of Act 388, the Act violated Cantrell Marine’s rights to equal protection and due process of law as well as the privileges and immunities provisions of the United States and Arkansas Constitutions.
Twenty-five other boat dealers intervened in the action on the side of the Commission. The Chancellor held the Act unconstitutional. In addition to the brief of the intervenors, we have a brief from the Arkansas Automobile Dealers Association amicus curiae urging that we decide the case in favor of the Commission’s position on the merits. We cannot reach the merits. We must reverse and dismiss because Cantrell Marine did not exhaust its administrative remedies.
In Consumers Co-Op. Assn. v. Hill, 233 Ark. 59, 342 S.W.2d 657 (1961), we held that “[t]he rule is well established that a litigant must exhaust his administrative remedies before instituting litigation to challenge the action of the administrative agency.” See also Cheney v. East Texas Motor Freight, Inc., 233 Ark. 675, 346 S.W.2d 513 (1961). Arkansas Code Ann. § 23-112-502(a) (Supp. 1989) provides: “Any interested party shall have the right to have the commission call a hearing for the purpose of taking action in respect to any matter within the commission’s jurisdiction by filing with the commission a complaint setting forth grounds upon which the complaint is based.” There is no doubt that an application for a license as a motor vehicle dealer falls within the jurisdiction of the Commission. Failure on the part of Cantrell Marine to seek a hearing before the Commission with respect to the Director’s action was clearly a failure to exhaust its administrative remedies. Dixie Downs, Inc. v. Arkansas Racing Comm., 219 Ark. 356, 242 S.W.2d 132 (1951).
In Barr v. Arkansas Blue Cross & Blue Shield, Inc., 297 Ark. 262, 761 S.W.2d 174 (1988), we noted exceptions to the exhaustion of remedies doctrine, including instances where it would be futile to pursue an administrative remedy or where there was no genuine opportunity to do so. We cannot say that either exception applies, as Cantrell Marine did not even ask the Commission to overrule its Director’s expression of opinion that Cantrell Marine did not qualify as a motor vehicle dealer.
In Consumers Co-Op. Assn. v. Hill, supra, we held that failure to seek a rehearing before an administrative agency was failure to exhaust administrative remedies where rehearing could have cleared up a confusing ruling. Our holding was without prejudice to the seeking of the rehearing. Likewise, this decision will not preclude Cantrell Marine from following administrative procedure and, in the event of a ruling against it, an appeal which would be to circuit court. Ark. Code Ann. § 23-112-506 (1987).
Reversed and dismissed.
Holt, C.J., and Brown, J., not participating. | [
54,
-22,
64,
-84,
74,
98,
48,
42,
89,
-21,
101,
19,
47,
-38,
4,
113,
-17,
91,
80,
107,
-57,
-74,
97,
66,
-46,
-45,
-37,
-57,
-79,
-49,
-27,
60,
72,
48,
-54,
-41,
-122,
8,
-115,
92,
54,
0,
-102,
-31,
-39,
92,
112,
40,
87,
-113,
5,
-116,
-93,
46,
27,
-61,
47,
108,
-7,
45,
-47,
-72,
11,
-99,
95,
16,
49,
116,
-103,
35,
-2,
60,
-128,
-80,
24,
-7,
-14,
-90,
-88,
116,
11,
-103,
8,
52,
99,
3,
33,
-23,
-36,
-88,
22,
-70,
15,
-124,
-46,
121,
67,
97,
-105,
-97,
122,
2,
7,
-2,
-2,
-107,
-41,
108,
7,
-113,
-108,
-77,
47,
-63,
-114,
1,
-17,
-57,
20,
53,
-52,
-10,
93,
84,
55,
27,
-122,
-80
] |
Robert L. Brown, Justice.
This dispute involves an appeal from an order by the trial court dismissing with prejudice a complaint for false arrest filed by appellant Robert Troutt against appellee Donna Kay Matchett. The dismissal order alluded to the fact that the case had previously been dismissed twice. There are no additional documents or pleadings in the record evidencing the prior complaints or the reasons for the two prior dismissals.
The appellant gives the following history of his litigation. He says that he filed his first complaint on December 18,1984. That complaint was dismissed on October 22,1986, without prejudice. The trial court’s reason for the dismissal is unclear. The appellant advances no theory for the dismissal but says that the dismissal was involuntary. The appellee asserts that the dismissal was due to failure to prosecute. The appellant states that he then filed a second complaint on October 14, 1987, but took a voluntary nonsuit on November 14,1988, four days before trial, because the trial court threatened sanctions. The complaint which is the subject of this appeal followed next on November 14, 1989, and the dismissal with prejudice was entered by the trial court on April 17, 1990.
The appellant, appearing pro se, argues on appeal that he has been denied his day in court and that his previous counsel was ineffective. He cites an earlier decision by this court which, he says, requires the appellee’s repayment of the consideration for making the bond, because she surrendered him without cause. See Troutt v. Langston, 283 Ark. 220, 675 S.W.2d 625 (1984). In that decision we granted a writ of mandamus and stated generally that consideration should be returned when a surrender is made without cause. That decision, however, adduced a legal principle and did not pretend to affirm a finding of fact in this case that the appellee had indeed surrendered the appellant without cause. In sum, the earlier Troutt decision does not resolve the issue of whether the appellant has been denied relief or his right to be heard.
On the validity of the trial court’s dismissal, we have no way of knowing whether it was correct or not, based on the record before us. We do not have the two previous complaints in the record; nor to we have the two earlier dismissal orders. All that we have are arguments of counsel and oblique allusions to what transpired before. Under these circumstances we are left to speculation and conjecture about whether the previous dismissals were voluntary or involuntary. That information is essential for resolving the procedural question at hand. The record filed on appeal is, quite simply, fatally defective. See Ark. R. App. P. 6. We have held repeatedly that the burden is on the appellant to bring up a record sufficient to demonstrate that the trial court was in error. See, e.g., SD Leasing, Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983). When the appellant fails to meet that burden, we have no choice but to affirm the trial court. Id.
Lastly, the appellant’s assertion that his previous counsel was ineffective is wholly without merit. That attorney is not a party to this litigation; moreover, there is nothing in record to substantiate this accusation. All we have before us is the bald statement by the appellant that his previous attorney nonsuited the second complaint after the trial court threatened sanctions. Again, the appellant’s record is totally insufficient.
The trial court’s order is affirmed.
Affirmed.
Holt, C.J., not participating. | [
-80,
-22,
-7,
62,
40,
-32,
58,
-68,
115,
-61,
118,
-13,
-83,
-46,
8,
123,
-2,
109,
113,
120,
-63,
-73,
119,
1,
-14,
-14,
-39,
85,
-79,
111,
-26,
124,
72,
112,
-126,
-45,
102,
-62,
-27,
88,
-122,
1,
57,
96,
89,
-44,
48,
43,
82,
11,
113,
-98,
-21,
43,
24,
-54,
104,
40,
75,
-83,
96,
113,
-102,
13,
-115,
68,
-77,
-90,
-100,
7,
120,
44,
-104,
49,
1,
-6,
114,
-74,
-126,
84,
107,
-103,
4,
102,
98,
3,
29,
-83,
-84,
-88,
14,
62,
13,
-90,
-40,
72,
73,
69,
-74,
-35,
117,
22,
-89,
-4,
99,
-116,
21,
108,
46,
-50,
20,
-77,
-81,
44,
62,
11,
-13,
33,
20,
117,
-113,
-24,
92,
-9,
115,
-101,
-42,
-106
] |
David Newbern, Justice.
Appellee Mid-America Industries, Inc., alleged that appellant Delbert Neil Helm fraudulently conveyed property to his wife and children in an attempt to avoid subjecting the property to execution of a judgment. The Chancellor set aside the conveyances and entered judgment against Helm’s wife, appellant Doris Helm, and children, appellants Donita, Paula and Jason Helm, for $20,500 which was the value of the land. The Helms contend the court should not have both set aside the conveyances and awarded damages against the grantees of those conveyances. They also argue it was error to set aside conveyances of land held by the entireties and that it was error to set aside the' conveyances without first finding Delbert Neil Helms, the judgment debtor, to be insolvent. We affirm the judgment in its entirety because none of the points argued on appeal were argued to the trial court.
Mid-America’s complaint sought in count two to have the conveyances set aside pursuant to Ark. Code Ann. § 4-59-207(a)(1) (1987). In count three, the complaint sought judgment, as permitted by Ark. Code Ann. § 4-59-208(b) (1987), against Doris Helm and the Helm children in the amount of the value of the land which had been conveyed to them. The statute does not require that these two forms of relief be sought in the alternative, and it was apparent from the outset that both were being sought.
The only objection to the judgment against the wife and children made at the hearing was that the children should not have judgment entered against them because the evidence did not show that they were aware of the reason for the conveyance. Nothing was said to the chancellor about the possibility that setting aside the conveyances to the children and to Doris Helm and then entering judgment against them might permit double recovery, which is argued on appeal.
We do not consider arguments made for the first time on appeal. Lovell v. Magnet Cove School Dist. No. 8, 301 Ark. 94, 782 S.W.2d 41 (1990); O’Bryant v. Horn, 297 Ark. 438, 669 S.W.2d 457 (1984); Shinn v. Shinn, 274 Ark. 237, 623 S.W.2d 523 (1981). As none of the arguments on appeal were presented to the chancellor, we must affirm the decision.
Affirmed. | [
-14,
-20,
-55,
44,
-120,
-32,
42,
-118,
67,
-125,
109,
-45,
-115,
79,
1,
121,
-10,
73,
116,
104,
-46,
-89,
3,
114,
80,
-6,
-77,
-59,
59,
110,
-90,
-41,
76,
80,
74,
85,
66,
-126,
69,
24,
-90,
2,
10,
109,
-23,
-64,
48,
111,
20,
15,
33,
-83,
-14,
-83,
24,
-61,
72,
46,
-117,
57,
-40,
88,
-70,
7,
95,
16,
49,
5,
-104,
6,
90,
44,
-112,
57,
1,
-24,
115,
-74,
-122,
116,
75,
-103,
-119,
110,
99,
16,
-60,
-1,
-72,
-120,
14,
-1,
29,
-25,
-110,
24,
67,
97,
-73,
-75,
120,
84,
-122,
-4,
-30,
-124,
93,
108,
-107,
-49,
-42,
-77,
-116,
112,
-100,
19,
-13,
-91,
52,
112,
-52,
-126,
93,
71,
118,
27,
14,
-7
] |
Donald L. Corbin, Justice.
Appellant was convicted on August 6,1990, of delivery of a controlled substance in violation of Ark. Code Ann. § 5-64-401 (1987). He was sentenced as an habitual offender under Ark. Code Ann. § 5-4-501 (1987) to serve a term of life in the Arkansas Department of Correction. He makes four assignments of error, among which we find no merit.
On August 20, 1989, appellant, Carlos Gomez, sold thirty-five capsules of cocaine to undercover agent W. L. Holbrook of the Ninth West Drug Task Force. On August 21,1989, appellant was charged by felony information with two counts of delivery of a controlled substance and one count of possession of a firearm. A warrant for his arrest was issued the same day. On August 25, 1989, a first amended information was filed charging appellant with only the count of possession of a controlled substance giving rise to the conviction from which this appeal is taken. In February 1990, appellant was tried on the remaining counts of delivery of a controlled substance and possession of a firearm.
As required by Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), when there is a challenge to the sufficiency of the evidence, the appellate court must review that point prior to considering any alleged trial error. Therefore, although appellant’s challenge to the sufficiency of the evidence is made in his last point, we will address it first.
I.
IT WAS ERROR TO DENY APPELLANT’S MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF THE STATE’S CASE AND AT THE CLOSE OF THE DEFENDANT’S CASE.
Appellant contends that because Officer Holbrook’s testimony was the only eyewitness account of the drug sale, and because he, appellant, offered the testimony of a witness corroborating his own testimony denying the transaction took place, there was not sufficient evidence to convict him. We disagree.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990). In reviewing the sufficiency of the evidence, this court views the evidence in the light most favorable to the appellee, and affirms if there is any substantial evidence in support of the verdict. Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). Evidence is substantial to support a conviction if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). In reviewing the sufficiency of the evidence, this court need only consider evidence in support of the conviction. Id. Furthermore, the credibility of the witnesses and the weight to be given their testimony are for the jury. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983). Where the testimony is conflicting this court does not pass upon the credibility of the witnesses and has no right to disregard the testimony of any witness after the jury has given it full credence. Id.
At trial, Officer Holbrook testified that he bought thirty-five gelcaps of cocaine from appellant. He said he gave appellant $150.00 for the cocaine. Officer Holbrook also described particulars of the transaction.
Considering the evidence in the light most favorable to the state, we cannot say there was not substantial evidence to support the conviction.
II.
THE DENIAL OF APPELLANT’S MOTION FOR CONTINUANCE WAS ERROR.
Appellant claims there was no opportunity for him to talk with his court-appointed public defender prior to the commencement of the trial, and therefore the trial court erred in denying his motion for continuance. Appellant is Cuban and claims that he does not understand English well enough to communicate with his attorney without an interpreter. He says that his attorney contacted the Sevier County jail on August 2, but no interpreter was available at that time. He says his attorney had another trial on August 3,1990, and due to her schedule, August 2 was the only possible opportunity for the two of them to discuss the case. The motion for continuance was made the day of trial.
The trial court has discretion to determine whether a continuance is appropriate; the denial of a continuance will not be reversed unless there was a clear abuse of discretion which constitutes a denial of justice. Cessor v. State, 282 Ark. 330, 668 S.W.2d 525 (1984). The burden is on the appellant to establish prejudice and an abuse of discretion in denying the continuance. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990). Additionally, in reviewing the denial of motions for continuance based upon alleged inadequacy of time for preparation for trial by a defendant’s attorney, we have been hesitant about finding an abuse of discretion because of the superiority of the trial judge’s perspective, his grasp of the particular situation, and his knowledge of developments which are not matters of record. Swaim v. State, 257 Ark. 166, 514 S.W.2d 706 (1974). However, we did find an abuse of discretion and reversed the conviction in Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990), a case similar to the case at bar in that the appellant did not speak English well enough to be able to communicate with his attorney without an interpreter. In Gonzales this court held that the appellant’s motion for continuance, which was based on the lack of time for trial preparation, should have been granted because the public defender, through no fault of his own or that of the appellant, did not know that he was to defend the appellant until the day before the case was to be tried. The court noted that “[t]his lack of preparation time was further compounded by the language barrier existing between the appellant and his appointed counsel and the difficulty in obtaining a competent interpreter in a timely manner.” Id. at 540, 798 S.W.2d at 102. The circumstances in the case at bar are clearly distinguishable.
Although appellant’s trial counsel in this case did not represent him in the February trial, she handled the appeals from those convictions. On August 6,1990, she told the court at an in chambers hearing immediately preceding trial that she had been corresponding with appellant for some time concerning those appeals. The prosecutor confirmed for the court that the circumstances giving rise to this charge were similar to those giving rise to the charges tried in February. Appellant’s trial counsel acknowledged being familiar with those circumstances from her work with his appeal from the February convictions. Also, according to the prosecutor, discovery was completed some time before trial. We note that appellant’s attorney did not assert any other need for the continuance except to converse with appellant.
The record is devoid of any documents directly concerning the appointment of appellant’s trial counsel. However, it does include two letters from the trial judge from which we can conclude she has been involved in this case since February 1990.
This court in Pruett v. State, 282 Ark. 304, 669 S.W.2d 186 (1984), another case where the appellant’s trial counsel was a public defender “swamped with work,” stated that “we cannot appreciably slow the flow of the criminal justice system to accommodate overworked attorneys or judges.” Id. at 309, 669 S.W.2d at 189. As appellant’s trial counsel had been involved in this case since at least February 1990, she had ample time within which to communicate with appellant prior to trial.
Appellant has failed to show how he was prejudiced. Therefore, we cannot say the trial court abused its discretion in denying appellant’s motion for continuance.
III.
THE DENIAL OF APPELLANT’S MOTION TO QUASH THE INFORMATION BECAUSE OF A DEFECT IN THE AFFIDAVIT WAS ERROR.
Appellant contends that, because the affidavit for warrant of arrest states no date as to when the alleged offense occurred, the affidavit is defective, and therefore the information should be quashed.
Concerning the issuance of a warrant of arrest, Ark. Code Ann. § 16-81-104 (1987) provides the following:
(a)(2) It shall be the duty of a magistrate to issue a warrant for the arrest of a person charged with the commission of a public offense when, from his personal knowledge or from information given him on oath, he shall be satisfied that there are reasonable grounds for believing the charge.
On August 21,1989, an information was filed charging appellant with delivery of a controlled substance; an affidavit was sworn by Officer Holbrook stating “facts constituting reasonable cause;” and a warrant for arrest was issued by the municipal judge on a finding that “this sworn affidavit and testimony of affiant demonstrate reasonable and probable cause for the issuance of an arrest warrant for the above named individual.” The record reflects compliance with the statutory requirements for issuing a warrant of arrest. Furthermore, the only purpose of an affidavit and arrest warrant is to have an accused arrested and brought before the justice or other officer issuing the warrant so that the accused may be dealt with according to law. Dudney v. State, 136 Ark. 453, 206 S.W. 898 (1918); Cox v. City of Joneboro, 112 Ark. 96, 164 S.W. 767 (1914); Daley v. State, 20 Ark. App. 127, 725 S.W.2d 574 (1987). As the affidavit served its purpose, it is not necessary to our decision to consider whether the affidavit was defective.
IV.
APPELLANT’S OBJECTION TO THE INTRODUCTION OF THE CONTROLLED SUBSTANCE SHOULD HAVE BEEN SUSTAINED BECAUSE THE PROPER CHAIN OF CUSTODY WAS NOT ESTABLISHED.
Appellant contends the gelcaps of cocaine, State’s Exhibit No. 4, were improperly admitted into evidence because the state failed to establish an unbroken chain of custody. He argues there were three missing links in the chain of custody as it was presented at trial. The alleged missing links were the absence of testimonies by Officer Holbrook’s secretary, in that she was the last person to handle the evidence before it was mailed to the state crime lab; the evidence receiving technician at the crime lab who actually received the evidence, checked it in and assigned it a laboratory case number; and possibly a second receiving technician who, following the analysis of the evidence, checked it back into the receiving room until such time as it was mailed back to Officer Holbrook. Appellant neither claims the evidence has been tampered with nor that it has been altered in any way; he simply asserts there are missing links in the chain of custody. Appellant’s argument is without merit.
The purpose of establishing the chain of custody is to prevent the introduction of evidence which is not authentic. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). To prove its authenticity the state must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). To allow introduction of physical evidence, it is not necessary that every moment from the time the evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come in contact with the evidence during that period. Phills v. State, 301 Ark. 265, 783 S.W.2d 348 (1990). Nor is it necessary that every possibility of tampering be eliminated; it is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. Munnerlyn v. State, 264 Ark. 928, 576 S.W.2d 714 (1979).
At trial Officer Holbrook positively identified the matchbox and the gelcaps, State’s Exhibit No. 4, as that which he purchased from appellant. He explained the routine he went through in preparing the evidence to be sent to the state crime lab. He said he placed both the gelcaps and the matchbox containing them in a plastic bag, sealed the bag, and wrote both appellant’s name and his own initials on it. Officer Holbrook also testified that when he received the evidence back from the state crime lab the seal had not been broken.
Norman Kemper, the drug chemist for the Arkansas State Crime Laboratory, in his testimony, explained how evidence is submitted to the crime lab. He said it is submitted “in a sealed condition” either by a law enforcement officer personally or by certified mail. Mr. Kemper said that upon arrival, the evidence is checked in by a laboratory evidence receiving technician and assigned a laboratory case number for identification purposes. The evidence in the case at bar was submitted by certified mail and, as evidenced by the signature on the green card which is part of the certified mail documentation, received by Renee Rice, an evidence receiving technician.
Mr. Kemper further explained for the jury the safeguards the investigators as well as the state crime lab personnel utilize to preserve the integrity of the evidence. He said, “[w]hen we receive evidence into the Lab, we try, if at all possible, not to disturb the original seal. . . . We try to make another incision on the envelope if possible and reseal it. Every time we reseal it we put our initials on it.” During his testimony Mr. Kemper examined the envelope in which the evidence had been mailed to the crime lab and observed, “ [t] his end apparently was opened by the evidence technician. She had to open it somehow to retrieve the envelope and the submission sheet that was inside the envelope, and she put her initials across it.”
Mr. Kemper continued saying that after the evidence is checked in and assigned a case number it is given to him for analysis. He testified that upon receiving this particular evidence, he analyzed it, resealed it, marked it and initialed it. Mr. Kemper identified both his seal and his signature on the bottom of the envelope and pointed out that he wrote both the date on which he originally opened the envelope and the date on which he sealed it. Upon completing this routine he said he turned the evidence back into the receiving room where it was checked in until such time as it was mailed back to Officer Holbrook.
From our review of the testimony presented by the state in establishing the chain of custody, we cannot say the trial judge abused his discretion in allowing the introduction of State’s Exhibit No. 4.
Affirmed. | [
48,
-18,
-3,
61,
58,
96,
56,
-72,
67,
-77,
116,
83,
-25,
-26,
28,
113,
-93,
125,
116,
105,
-35,
-77,
119,
113,
-14,
-41,
106,
-41,
51,
75,
-20,
-44,
77,
48,
-122,
-59,
102,
72,
-25,
24,
-22,
1,
-101,
-28,
83,
18,
32,
38,
30,
15,
113,
-122,
-29,
43,
26,
-49,
77,
40,
75,
-91,
72,
-24,
-71,
13,
-85,
20,
-79,
-12,
-101,
13,
-40,
46,
-36,
49,
1,
40,
115,
-90,
-58,
-12,
105,
-117,
12,
96,
-30,
0,
13,
-19,
-84,
-120,
54,
62,
-115,
-90,
-100,
1,
73,
77,
-106,
-99,
124,
18,
46,
-30,
115,
125,
85,
108,
-123,
-33,
-112,
-79,
8,
56,
12,
57,
-29,
39,
16,
116,
-49,
-30,
92,
85,
24,
-101,
-122,
-42
] |
Tom Glaze, Justice.
Arkansas statutory laws provide for involuntary sterilization procedures on mental incompetents. Ark. Code Ann. § § 20-49-101 to -102, 20-49-201 to -207, and 20-49-301 to -304 (1987). Sections 20-49-201 to -207 set out one method that requires judicial oversight before such an involuntary sterilization on an incompetent can be performed. However, §§ 20-49-301 to -304 establish a second or alternative method that allows involuntary sterilization on incompetents through what is described as “direct medical channels” —■ a statutory procedure that provides no judicial oversight. In this law suit, appellant challenges this alternative method, claiming it violates appellant’s fundamental liberty or property interests guaranteed under the 14th Amendment. See Santosky v. Kramer, 455 U.S. 745 (1982); Matthews v. Eldridge, 424 U.S. 319 (1916); Buck v. Bell, 274 U.S. 200 (1927).
The state Attorney General’s office intervened in this cause, but does not argue that the alternative or “direct medical channels” procedure meets constitutional muster. In fact, the Attorney General, in a prior opinion dated April 30, 1986, indicated that this alternative sterilization method was constitutionally suspect. The state, instead, both below and on appeal, urges only that the appellant has no standing to raise the constitutional issue she argues in this case. We disagree, and hold the appellant not only has standing, but she also is correct in her claim that §§ 20-49-301 to -304 are unconstitutional.
A brief description of the facts and the procedures leading to this appeal is necessary. Appellant, an adult, initiated this action by filing a complaint and requesting a restraining order to prohibit her father, her legal guardian, from forcing her to undergo a non-judicial or direct medical channels involuntary sterilization procedure at a local hospital. Upon giving proper notice to the state Attorney General’s office, she requested the court to declare §§ 20-49-301 to -304 unconstitutional. The trial court issued a temporary restraining order against appellant’s father. It also subsequently approved and entered an order whereby the parties agreed that the father should be enjoined from having any contact with the appellant or from taking any actions to secure an involuntary sterilization procedure on her person. Following this so-called agreed order, the trial court dismissed the case, stating that the parties’ case had become moot and a “live controversy” was no longer presented to the court.
On appeal, the appellant, citing Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989), argues this court should not permit mootness to become determinant as to whether it rules on the merits of appellant’s constitutional argument, since this case could serve to avert future litigation, and it also involves a question of great public interest. Although we adhere to the rule that this court ordinarily does not decide cases that are moot, Logan v. State, 299 Ark. 550, 776 S.W.2d 327 (1989), we believe the situation here is a matter of sufficient importance that warrants our decision on the merits.
In support of our decision to decide this case on its merits, we point out that the involuntary sterilization procedure under attack here could only be initiated by appellant’s father, as her legal guardian. Appellant’s father answered his daughter’s complaint, denying he had ever sought her sterilization. Nonetheless, he later agreed to an order enjoining him from contacting his daughter for the purposes of initiating an involuntary sterilization. Of course, if that order was still in effect, one could argue the appellant is protected against her father’s future contacts and suggestions of sterilization. However, while both the appellant and the state in oral argument seem to surmise that the agreed restraining order signed by the trial court remains intact, we question the reliability of such a conclusion since the trial court later “dismissed this case” because of mootness. Of course, the significance of the trial court’s dismissal of the case bears directly upon whether appellant remains at risk to future contact and litigation since her father no longer appears to be enjoined from contacting her or from initiating involuntary sterilization. Our decision to decide this case on its merits could well avert such future litigation.
In addition to the foregoing, we also find merit in appellant’s argument that public interest requires this court to reach the constitutional question raised by appellant. The Supreme Court has said that the right to marriage and procreation are fundamental to the very existence and survival of the race, and the power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. Skinner v. Oklahoma, 316 U.S. 535 (1942). When confronted with a serious constitutional question bearing on one of Arkansas’s statutory schemes providing for involuntary sterilization, we are convinced that public interest dictates our consideration of that statutory law, especially when, by the Attorney General’s own admission, a serious question exists concerning that law’s constitutional validity. We recognize, too, that while appellant here obtained counsel who appropriately raised the constitutional question surrounding §§ 20-49-301 to -304, we can safely presume such an opportunity to test this constitutional issue is a rare one, since incompetents under those statutory provisions, are not given notice of their rights, afforded counsel, or offered an opportunity to be heard as to whether they should undergo sterilization.
In reaching appellant’s constitutional argument, we first note that the right of a state to sterilize retarded or insane persons was first upheld by the United States Supreme Court in Buck v. Bell, 274 U.S. 200 (1927). There, in upholding a Virginia sterilization law, the Court held that the state may provide for the sterilization of a feebleminded inmate of a state institution where it is found that she is the probable potential parent of socially inadequate offspring, and that she may be sterilized without detriment to her general health, and that her welfare and that of society will be promoted by her sterilization.
Since Buck, many states, including Arkansas, have passed sterilization laws. See In re Sterilization of Moore, 289 N.C. 95, 221 S.E.2d 307 (1976); Annotation, Validity of Statutes Authorizing Asexualization or Sterilization of Criminals or Mental Defectives, 53 A.L.R.2d 960 (1973). Some of these statutes have been declared unconstitutional because they failed to provide for notice and a hearing. Moore, 289 N.C. at 98, 221 S.E.2d at 309. Professor Clark has said that the mentally incompetent’s condition justifies a requirement of the utmost procedural protection for anyone subjected to involuntary sterilization. H. Clark, The Law of Domestic Relations § 5.2 (2nd ed. 1988). We certainly agree.
The statutory direct medical channels sterilization provisions questioned here, §§ 20-49-301 to -304, are first triggered by a mental incompetent’s parent or legal guardian. That parent or guardian can obtain sterilization on his or her child or ward by filing with an approved hospital the certificates of three doctors or medicine, reflecting that those doctors have examined the incompetent and a sterilizing procedure is justified. The sterilization may be consummated after the hospital’s sterilization committee reviews and approves the request. None of these statutory procedures mentions any notice to be provided an incompetent, any suggestion an incompetent is entitled to counsel, any opportunity for the incompetent to be heard as to the need for sterilization, or any right to cross-examine those seeking the incompetent’s sterilization. In sum, this procedure falls far short of the minimum requirements of procedural due process. See Matter of C.D.M., 627 P.2d 607 (Alaska 1981); In re Penny N., 414 A.2d 541 (N.H. 1980); see also 44 C.J.S. Insane Persons § 71 (1945).
For the above reasons, we hold §§ 20-49-301 to -304 unconstitutional and remand this cause with directions to enter an order consistent with this court’s opinion. | [
84,
-24,
-35,
-116,
8,
97,
82,
22,
83,
-117,
117,
-13,
-17,
-56,
-99,
99,
-103,
59,
113,
121,
-43,
-77,
39,
105,
114,
-45,
-111,
-41,
-77,
-53,
-12,
-65,
73,
48,
-54,
-43,
98,
66,
-19,
-48,
-122,
11,
-117,
97,
81,
-110,
50,
103,
90,
71,
53,
-67,
-29,
42,
36,
-53,
-120,
70,
75,
-20,
64,
-104,
-117,
29,
123,
18,
-95,
4,
24,
-91,
-8,
46,
90,
56,
9,
-24,
115,
-76,
10,
116,
79,
-39,
0,
115,
98,
-112,
9,
-9,
-72,
-88,
62,
-17,
-115,
-121,
-102,
105,
67,
15,
-65,
-67,
0,
52,
30,
-6,
-69,
-51,
22,
108,
8,
-114,
-106,
-79,
71,
120,
-108,
1,
-29,
-57,
80,
113,
-49,
-14,
84,
71,
123,
-37,
-114,
-62
] |
Donald L. Corbin, Justice.
Appellant, Rose Mary Austin, filed suit against appellee, First National Bank of Fayetteville, for conversion and wrongful dishonor. Appellant’s complaint alleged that appellee acted willfully and intentionally with respect to appellant’s property and that appellee was therefore liable for punitive damages. Appellee filed a motion for partial summary judgment on the issue of punitive damages. The trial court granted the motion concluding there was no genuine issue of fact as to the punitive damages because there was no evidence that appellee acted with the purpose of violating appellant’s right to her property or with the purpose of causing damages. The trial court entered an order which stated it was a final judgment and authorized an appeal pursuant to Ark. R. Civ. P. 54(b). This appeal is from that order.
Ark. R. Civ. P. 54(b) provides the means of bringing an appeal of one or fewer than all the claims within a suit, when a final order settling all the claims has not yet been rendered. Pursuant to Rule 54(b), the trial “court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” The order entered by the trial court in this appeal merely recites the language of Rule 54(b) without stating any facts to support the finding there is no just reason for delay.
We have previously held that, “in order to find there is no just reason for delay, the trial court must find some likelihood of hardship or injustice which would be alleviated by an immediate appeal.” Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 574, 726 S.W.2d 674, 677 (1987). In Arkhola, supra, we specifically gave “notice that merely tracking the language of Rule 54(b) will not suffice; the record must show facts to support the conclusion that there is some danger of hardship or injustice which would be alleviated by an immediate appeal.” Arkhola at 575, 726 S.W.2d at 677.
As previously noted, the order entered by the trial court in this case merely recites the language of Rule 54(b) without stating any supporting facts. The record is void of any facts to support a conclusion of possible danger of hardship or injustice which would be alleviated by an immediate appeal of the punitive damages issue. Thus, we conclude the order appealed from in this case is not a final order pursuant to Rule 54(b). Moreover, there is law to indicate an order such as the one entered in this case is contrary to the policy of prohibiting piecemeal appeals enunciated in Ark. R. App. P. 2.
In Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984), we held that an order granting partial summary judgment on the issue of punitive damages was not a final order from which an appeal could be taken. There, we reasoned that:
We have held in numerous cases that we do not reach the merits of an appeal if the order appealed is not final. [Citations omitted.] In all of these cases we stated that in order for a judgment to be appealable, it must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject matter in controversy. [Citation omitted.] The trial court did not grant summary judgment in the whole case, and we are not in a position to predict what evidence will be presented at trial relevant to all claims for relief sought by the appellants. If this appeal were allowed and we decided the issue on punitive damages and subsequent errors occurred during the trial on the remaining issues, the case could be appealed a second time, resulting in two appeals where one would suffice. This case illustrates simply the reason for the rule that an order must be final to be appealable. See Rule 2, Arkansas Rules of Appellate Procedure. This is a jurisdictional requirement we are obliged to raise even when the parties do not. [Citations omitted.] Accordingly, this appeal is dismissed.
Fratesi, 282 Ark. at 214, 666 S.W.2d at 713.
The issue in Fratesi, supra, is identical to the issue now before us and the result and reasoning applied there is applicable here. Consistent with Arkhola, supra, and Fratesi, supra, we hold the order granting partial summary judgment on the issue of punitive damages is not a final, appealable order. Accordingly, this appeal is dismissed.
Appeal dismissed.
Newbern, J., concurs. | [
-14,
-22,
-11,
60,
72,
96,
0,
-70,
65,
-117,
49,
81,
-89,
-50,
4,
105,
-29,
121,
101,
121,
86,
-77,
7,
104,
-14,
-77,
113,
85,
-67,
75,
-28,
-2,
76,
48,
-54,
-43,
-58,
-54,
-123,
-36,
14,
-116,
56,
109,
-47,
68,
56,
127,
18,
71,
1,
-83,
-77,
45,
24,
-62,
105,
40,
75,
60,
88,
-15,
-118,
13,
125,
5,
-79,
-92,
-98,
7,
-8,
56,
-112,
49,
0,
-8,
114,
38,
-126,
116,
107,
-119,
8,
46,
99,
1,
13,
-17,
60,
-88,
39,
126,
-99,
-90,
-110,
105,
75,
97,
-74,
-107,
126,
-124,
69,
124,
126,
-123,
93,
108,
1,
-49,
-108,
-93,
-113,
44,
-102,
3,
-21,
-109,
50,
117,
-51,
-64,
92,
79,
51,
-37,
-42,
-68
] |
Per Curiam.
Appellant Kelly Huggins, by his attorney, has filed a motion for a rule on the clerk.
His attorney, Christopher O’Hara Carter, admits that the failure to file the record in time was due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
The motion is therefore granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Appellant further moves for a declaration that he is indigent under Supreme Court Rule 28. That motion is granted.
Appellant’s counsel moves to dismiss his previous petition to withdraw as counsel. That motion, too, is granted. | [
-80,
-24,
-20,
60,
-118,
-95,
48,
-66,
89,
-29,
-13,
115,
-89,
74,
-100,
121,
-13,
107,
-43,
-13,
-123,
-93,
71,
81,
38,
-77,
-61,
87,
53,
111,
-28,
-9,
72,
48,
-54,
-43,
70,
-120,
-123,
-44,
-114,
13,
-103,
-20,
121,
8,
48,
33,
16,
15,
113,
94,
-29,
42,
63,
71,
-87,
44,
-37,
-84,
66,
-15,
-102,
13,
127,
20,
-79,
-28,
-98,
-122,
-40,
126,
-116,
56,
2,
-24,
48,
-90,
-122,
116,
107,
57,
40,
70,
100,
48,
-39,
-25,
-112,
-128,
6,
30,
-99,
-90,
-39,
113,
73,
45,
-106,
-67,
117,
16,
7,
124,
-18,
-59,
29,
44,
-118,
-50,
-44,
-77,
-113,
123,
-116,
11,
-21,
5,
16,
113,
-49,
-26,
88,
74,
59,
-109,
-34,
-44
] |
Robert H. Dudley, Justice.
The jury found the appellees guilty of a misdemeanor. They moved for judgments notwithstanding the verdicts. The State objected and, among other things, contended that such judgments are not authorized by the Rules, of Criminal Procedure. See A.R.Cr.P. Rule 36.22. The trial court granted the judgments notwithstanding the verdicts. The State attempts to appeal the decision for the future guidance of trial courts. See A.R.Cr.P. Rule 36.10. We dismiss the appeal because the transcript was not filed within the sixty (60) day period as required by A.R.Cr.P. Rule 36.10(c), and we do not have jurisdiction.
On June 4, 1990, the trial court entered the judgments of acquittal notwithstanding the verdicts of the jury. On July 2, 1990, the State timely filed its notice of appeal. However, the transcript was not filed until September 5,1990, which was more than sixty (60) days after the filing of the notice of appeal. The filing of the transcript within the sixty (60) day period as required by Rule 36.10(c) is jurisdictional. State v. Bland, 260 Ark. 511, 542 S.W.2d 497 (1976). Since we are without jurisdiction, we must dismiss the appeal.
Newbern, J., not participating.
809 S.W.2d 821
JUNE 17, 1991
Winston Bryant, Att’y Gen., by: Sandy Moll, for appellant.
Cross, Kearney & McKissic, by: Gene E. McKissic, for appellee. | [
-48,
-32,
-107,
31,
-21,
96,
34,
-100,
66,
-105,
111,
-45,
-19,
-47,
20,
57,
107,
43,
117,
123,
-39,
-94,
39,
67,
-93,
-9,
-61,
84,
-73,
111,
-18,
-8,
76,
-16,
-54,
-11,
-58,
75,
-47,
88,
-126,
7,
-71,
68,
121,
-126,
48,
112,
120,
15,
49,
-114,
-30,
-85,
28,
-53,
-23,
40,
-55,
-67,
64,
112,
-102,
13,
127,
16,
-77,
-107,
-98,
-121,
80,
56,
-100,
57,
1,
-20,
-16,
-74,
-122,
84,
111,
25,
12,
102,
99,
1,
-35,
-17,
-72,
-87,
62,
118,
-100,
-82,
-103,
72,
75,
12,
-89,
-99,
110,
54,
-90,
-2,
-19,
-116,
95,
108,
2,
-50,
-112,
-77,
15,
124,
-66,
74,
-61,
-73,
16,
116,
-52,
-16,
92,
70,
19,
-117,
-114,
-112
] |
Jack Holt, Jr., Chief Justice.
This case concerns legal malpractice insurance coverage wherein the appellants, Jeffrey Morris and James Mays, appeal from a grant of summary judgment in favor of Mays’ insurance carrier, the appellee, Valley Forge Insurance Company (Valley Forge). The trial court held that Mays’ policy with Valley Forge afforded no coverage for a legal malpractice judgment obtained against him by Morris. Since we find remaining issues of material fact, we reverse the trial court’s decision and remand the case for trial.
Mays was an attorney practicing in Little Rock who represented Morris in a divorce action. The two were also friends and business associates in various investment ventures. Mays sold a motel, owned by his company, the Mays-Connealy Corporation, to JWM Investment Enterprises, Inc. (JWM), a company owned by Morris. Mays did not inform Morris that the property was already encumbered by a substantial lien, nor did he provide clear title upon Morris’ completion of purchase payments, as he had promised. The bank foreclosed on the motel, and Morris lost both the property and his investment.
Morris brought suit in Pulaski County Circuit Court against Mays, individually and as a principal of the Mays-Connealy Corporation, alleging legal malpractice, fraud, and breach of contract. The claims against the corporation and all allegations of fraud and breach of contract were dropped during trial, however, and the case was submitted to the jury on the single issue of negligent malpractice against Mays. The jury returned a verdict in favor of Morris for the amount of his investment in the motel. Valley Forge provided a defense for Mays in that action, under a reservation of rights.
Following judgment, Valley Forge filed an action for declaratory relief in Jefferson County Circuit Court, contending that the policy issued to Mays did not provide coverage for the judgment. Valley Forge then filed a motion for summary judgment, specifically alleging: 1) that Mays’ acts and omissions resulting in the loss to Morris were not done in the performance of legal services, as required by the policy; 2) that even if legal services were rendered, coverage was excluded under the exception for “any dishonest, fraudulent, criminal or malicious act or omission of the insured;” 3) that Mays’ acts fell within the exclusion for professional services rendered for a business owned by the insured; and 4) that Mays’ acts fell within the exclusion for performance of professional services as an attorney and an officer, director, employee or trustee of a business.
After consideration of the pleadings, to which portions of the testimony at the previous trial were attached, depositions, briefs, and oral arguments of counsel, the trial court granted the motion, holding that Mays’ conduct “did not constitute performance of professional services as a lawyer” and that such conduct “fell within policy exclusions.”
We agree with the appellants that the exclusions and policy provisions relied on by Valley Forge, and presumably upon which the trial court based its decision, involved questions of fact and summary judgment was improper.
PERFORMANCE OF PROFESSIONAL SERVICES
The trial court first erred in finding, as a matter of law, that the motel transaction did not amount to professional services rendered by Mays as Morris’ attorney.
The policy provided that Valley Forge agreed:
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages:
1. arising from the performance of professional services for others in the insured’s capacity as a lawyer, real estate title insurance agent or notary public because of an act or omission of the insured or of any other person or firm for whose act or omission the insured is legally responsible ....
Morris contended throughout the trial that the motel transaction came about as the result of Mays’ representation and advice during his divorce. Morris, who was living in Pine Bluff when the divorce proceedings first began, testified that Mays recommended he move to Little Rock so that Mays could better represent him. Also at Mays’ suggestion, Morris formed a corporation, JWM, in an attempt to shield assets from his wife. The purchase of the motel was further recommended by Mays as a way to generate income and conserve assets.
Mays denied that the discussion concerning the sale of the motel occurred in any context other than between friends mutually interested in a business investment. Valley Forge further points to Morris’ testimony where he conceded that he wasn’t “relying on Mays as his attorney” when Mays drew up the papers for the sale. Valley Forge argues that a distinct line may be drawn between Mays’ representation and advice in the context of Morris’ divorce, and Mays’ conduct in the actual property transaction. The line is a dubious one and, at best, presents a question of fact.
Summary judgment, like a mistrial, is an extreme remedy and should only be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 5(c); Guthrie v. Kemp, 303 Ark. 74, 793 S.W.2d 782 (1990). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Any doubts and inferences must be resolved against the moving party. Guthrie v. Kemp, supra.
Morris repeatedly testified that he entered into the purchase on the direct advice of Mays in connection with his divorce. Such a relationship would impose a fiduciary duty on Mays to disclose the existence of the lien and to recommend to Morris that he seek independent counsel. See Model Rules of Professional Conduct 8.1 (1985). (The jury, at the trial on this matter, received instructions on negligent legal malpractice and obviously recog nized the existence of the attorney-client relationship, and Mays’ corresponding duties, since it rendered a verdict against him.)
We note that the trial court, in its order, stated that the facts concerning Mays’ conduct were “well known as there [had] already been a full trial with regard to Mays’ liability to Morris,” and that the only remaining issues were whether those facts fell within policy coverage or exclusion. This finding is erroneous, however, since the established facts before the court were in dispute. Although our decision here may result in a retrial of essentially the same facts, the specific issues of policy coverage must be determined by a jury or trier of fact as the facts deciding those issues remain in conflict.
DISHONEST OR FRAUDULENT ACTS EXCLUSION
Summary judgment on the basis of the policy’s exclusion for “dishonest, fraudulent, criminal, or malicious” acts or omissions was also improper.
Proof of fraud requires a showing of five elements: 1) a false representation of a material fact; 2) knowledge or belief on the part of the person making the representation that the representation is false; 3) an intent to induce the other party to act or refrain from acting in reliance on the misrepresentation; 4) a justifiable reliance by the other party; and 5) resulting damages. Brookside Village Mobile Homes v. Meyers, 301 Ark. 139, 782 S.W.2d 365 (1990).
Again, the testimony in the depositions and at trial creates factual questions as to whether Mays actually intended to defraud Morris and to induce his reliance on the acts and omissions at issue.
The facts not in dispute show that Morris’ company, JWM, paid the Mays-Connealy Corporation $100,000 for a lease with an option to purchase the motel. The total purchase price was listed at $175,000. As stated earlier, Mays did not inform Morris of an approximate $80,000 lien on the property. Morris later exercised his option to purchase and paid, through JWM, $35,000 toward the purchase price. Upon Morris’ discovery of the existence of the lien, Mays told Morris that if he would pay the balance of the purchase price ($40,000) he would deliver title. Morris paid the balance, but Mays never delivered title, and the bank foreclosed on the motel.
What remains in dispute is whether Mays’ failure to deliver clear title was fraudulent or dishonest. Mays’ testimony at trial on this issue is sufficient to create a genuine issue of material fact. The following exchange occurred on direct examination:
Q: What was your position in December of 1984, Jim, about whether your corporation was required to deliver a deed to Mr. Morris’ corporation?
A: It was my belief that, technically, it was not necessary to do so, but if he were to pay me his half of what we were losing in M & M that I’d take that and pay off the mortgage that was there and deliver one to him.
Q: In other words, if you received the money from the telethon, you would use it to extinguish the lien at Worthen.
A: That’s right.
Q: And deliver the deed.
A: That’s correct.
* * * *
Q: Was there any time when you formed any intent not to pay off the mortgage at Worthen Bank and deliver a deed, if you had the money to do it.
A: I always intended to do that.
* * * *
This testimony, at the least, compels a consideration of appellants’ argument that Mays never intended to permanently withhold delivery of title but, rather, hoped to pay off the lien from the profits of another investment thereby enabling him to give clear title. Any question of credibility is solely for the trier of fact to resolve. Weber v. Bailey, 302 Ark. 175, 787 S.W.2d 690 (1990).
As to Mays’ failure to inform Morris of the lien, Mays testified that he thought no more about the lien than on any other occasion where he had rented out an apartment and there was a lease on the building. This precludes a determination that Mays possessed a fraudulent or dishonest intent as a matter of law. Furthermore, an attorney’s failure to disclose the existence of a lien to his client, without proof of actual fraud or dishonesty, implicates only “constructive fraud.”
We have defined constructive fraud as “c breach of legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law [declares] fraudulent because of its tendency to deceive others . . . Neither actual dishonesty of purpose nor intent to deceive is an essential element.” (Emphasis added.) Davis v. Davis, 291 Ark. 473, 725 S.W.2d 845 (1987) (quoting Lane v. Rachel, 239 Ark. 400, 389 S.W.2d 621 (1965)). It has been held that policy exclusions for “fraudulent acts” should not include constructive fraud or acts or omissions which are deemed fraudulent only because they constitute a breach of fiduciary obligations. See R. Mallen and J. Smith, Legal Malpractice, § 28.19 (1989). See also Perl v. St. Paul Fire & Marine Ins. Co., 345 N.W.2d 209 (Minn. 1984) where the court held that an attorney’s failure to inform his client of his business relationship with an insurance adjuster, with whom he was negotiating on the client’s behalf, constituted only constructive fraud, thus making the policy’s fraud exclusion inapplicable. “Since much of an attorney’s practice involves fiduciary duties, to exclude such conduct from an attorney’s liability policy would eviscerate the policy coverage.” Id. at 213.
Surely Valley Forge did not intend to exclude coverage for a breach of fiduciary duty without a showing of intentional wrongdoing, which, as we stated, presents a factual issue.
BUSINESS EXCEPTIONS
Lastly, summary judgment should not have been granted on the basis of the policy exclusion concerning an “owned business,” or the exclusion concerning an attorney’s activities as an officer, director, employee, or trustee of a business enterprise.
The “owned business” exclusion provides that the policy will not cover:
* * * *
B. the performance of professional services for a business enterprise not named in this policy, owned by an insured or their spouse, a business enterprise in which an insured or their spouse is a partner, or a business enterprise which is controlled, managed or operated by an insured or their spouse.
The other business exclusion denies coverage for:
C. a claim arising out of the insured’s activities as a lawyer and:
1. an officer, director, employee or trustee of a business enterprise not named in this policy, charitable organization, or a pension, welfare, profit-sharing, mutual or investment fund or trust. . .
unless such entity is a client of the insured and the claim relates solely to such lawyer/client relationship.
The pivotal question with regard to both of these exclusions is whether Mays was acting in the interests of the Mays-Connealy Corporation when he arranged the sale of the motel. We agree with the appellants that although the facts, on the surface, appear to fit within the language of these exclusions, the application of the exclusion depends on the real nature of the transaction. Was Mays acting on behalf of his company or was he arranging a deal for Morris as his attorney, or both?
A determination of whether Mays was acting “for” the Mays-Connealy Corporation, and whether the claim “arose out of’ his connection with that company, turns on the credibility of Morris’ testimony that the whole transaction would not have occurred but for Mays’ professional advice in connection with the divorce, versus the credibility of Mays’ testimony that he “assumed” he was representing his company in drafting the lease papers. This is a matter for a trier of fact.
We have said that exclusionary clauses in insurance policies are strictly interpreted, and all reasonable doubts are resolved in favor of the insured. Southern Title Ins. Co. v. Oller, 268 Ark. 300, 595 S.W.2d 681 (1980). Again, we find that factual issues remain as to Mays’ acts in connection with his company and that summary judgment in favor of Valley Forge on the basis of either of these exclusions was, therefore, improper.
For the foregoing reasons, we reverse and remand for trial.
Brown, J., not participating. | [
-80,
104,
-12,
56,
8,
96,
42,
58,
107,
-128,
119,
83,
-35,
-26,
1,
125,
-26,
121,
-27,
97,
71,
-77,
7,
98,
-46,
-69,
-37,
-59,
-80,
77,
-20,
-33,
76,
104,
-54,
93,
70,
74,
-63,
16,
14,
-120,
50,
-26,
89,
-47,
48,
-5,
80,
67,
49,
-97,
-14,
46,
53,
74,
45,
44,
75,
-72,
81,
-111,
66,
69,
127,
1,
17,
6,
60,
15,
-40,
10,
-112,
49,
73,
-22,
114,
-74,
82,
52,
96,
-71,
9,
98,
99,
51,
1,
-57,
-20,
-116,
15,
-38,
-113,
-121,
-86,
73,
11,
9,
-73,
-98,
120,
12,
-128,
-38,
-20,
93,
95,
41,
1,
-113,
-42,
-93,
-85,
112,
92,
-125,
-10,
31,
-80,
84,
-58,
-21,
93,
81,
113,
27,
110,
-107
] |
Steele Hays, Justice.
The appellant, Robert Lee Fairchild, was charged and convicted of rape and kidnapping. Having been convicted previously of four or more felonies, he was sentenced as a habitual offender to a term of forty years on each offense, the sentences to be served concurrently. Fairchild’s only contention on appeal is that there was insufficient evidence to sustain his conviction of kidnapping. We disagree.
On February 10, 1990, Fairchild approached the victim, Jeffery Beatty, in the vicinity of the bus station and invited Beatty to his house, where for some two hours they ate, drank beer and, at Fairchild’s suggestion, looked at a magazine containing sexually explicit photographs. Then Fairchild brought out a red robe and asked Beatty to take off his clothes and put it on. Beatty refused and started to leave. As Beatty reached the door Fairchild grabbed him, pressed a butcher knife to his stomach and told him he was not leaving until Fairchild got what he wanted, what he had brought him there for in the first place. Fairchild struck Beatty twice on the left side of his head, forced him to remove his clothes and lie face down on the kitchen floor where Fairchild sodomized him.
At that point Fairchild’s sister knocked from inside a bedroom and asked if she could come out. Fairchild told her to wait as the two men hurriedly put on their clothes. The woman began cooking and Beatty, on the pretext of getting some air, managed to unlock the door and run. Fairchild caught him a few blocks away and Beatty was forced, again at knife point, to return to the house. Evidently the episode was seen by a passing motorist who reported the incident to the police. Back at the house Beatty began pleading with Fairchild’s sister to convince Fairchild to release him. Fairchild at first refused, then seemed willing, but as Beatty started toward the door he saw Fairchild reaching for the knife and he backed away from the door. At that point the police arrived.
Fairchild was charged with Ark. Code Ann. § 5-11-102(a)(4) (1987) which provides in pertinent part:
[A] person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of . . . engaging in . . . deviate sexual activity, or sexual contact with him.
In order to sustain a conviction for kidnapping the state must prove that the restraint exceeded that normally incidental to the rape. Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988). The purpose of the restraint may be inferred from circumstantial evidence. Jackson v. State, 290 Ark. 160, 717 S.W.2d 901 (1986).
In Summerlin v. State, supra, we held that the evidence was insufficient to support a kidnapping charge because the restraint was not greater than that which the state was obliged to prove on its attempted rape charge against the appellant. The victim in Summerlin was jogging in a park when she observed the appellant completely nude standing on the opposite side of the road. As she ran past him he grabbed her and pulled her to the ground. The appellant and the victim struggled briefly but she managed to break loose and escape.
In marked contrast to Summerlin, the facts in this case reflect a substantial interference with Beatty’s liberty beyond that necessary to accomplish the rape itself. When Beatty was chased several blocks by Fairchild and, again at knife point, forced to return to the house, the reasonable inference is that Fairchild’s purposes were identical to those he had earlier demonstrated. Certainly from this point on there was a substantial interference with Beatty’s liberty with the purpose of engaging in sexual contact as proscribed by Ark. Code Ann. § 5-11-102 (1987). Additionally, while Fairchild’s actions were ostensibly hospitable, his subsequent conduct and remark about why he had brought Beatty to his house, supports the conclusion that he had sexual designs on Beatty from the outset. Arkansas Code Ann. § 5-11-101 (1987) makes it clear that “restraint without consent” as used in kidnapping and related offenses includes restraint by physical force, threat or deception.
We readily conclude that the evidence sustains the judgment of conviction for the offense of kidnapping independently of the crime of rape.
Affirmed. | [
80,
-18,
-100,
-68,
59,
67,
58,
-80,
115,
-45,
61,
-45,
-81,
-32,
4,
107,
19,
107,
85,
97,
-35,
-77,
70,
-95,
-6,
-5,
81,
-44,
-77,
79,
-68,
-76,
13,
96,
-54,
-47,
34,
8,
-63,
-40,
-114,
7,
-109,
126,
-47,
6,
40,
115,
-48,
14,
49,
-97,
-29,
74,
20,
-118,
-119,
108,
-53,
63,
-46,
61,
-6,
23,
-33,
20,
-93,
-90,
57,
41,
-16,
30,
28,
49,
16,
-24,
123,
-74,
-126,
101,
93,
-117,
-116,
98,
98,
32,
13,
-57,
44,
-119,
-18,
-1,
-67,
-81,
-40,
72,
96,
109,
-65,
-99,
114,
21,
12,
-6,
-9,
-52,
21,
100,
-85,
-50,
-108,
-77,
-51,
120,
112,
57,
-13,
53,
16,
96,
-49,
-27,
84,
87,
115,
-69,
-114,
-9
] |
Robert H. Dudley, Justice.
The plaintiffs filed a complaint against defendant Lemarco, Inc., and against Donco Financial, Inc. The plaintiffs asked that the case be certified as a class action. After a hearing, the trial court granted the plaintiffs’ motion to certify a class action against Lemarco, Inc., but denied their request with respect to Donco Financial, Inc. Lemarco, Inc., appeals from that ruling. There is no cross-appeal from the refusal to grant class certification against Donco Financial, Inc. Thus, the sole issue is whether the trial court abused its considerable discretion in certifying this case as a class action. We hold that the trial court did not abuse its discretion.
Lemarco, Inc. is a “private buyers club.” Members are solicited with promises of prizes for attending sales presentations. The class certified by the trial court consists of those “who entered into retail installment membership contracts with Lemarco and have claims against Lemarco for fraud, false advertising, misrepresentation, breach of contract, and violations of the Arkansas Deceptive Trade Practices Act.” In short, plaintiffs allege that Lemarco’s offer of free gifts and its subsequent representations concerning the benefits of membership were part of a scheme to defraud the class members of their membership fees.
We recognized in Int’l Union of Elec., Radio & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988), that our attempts to cling to a pre-ARCP Rule 23 tradition, which disfavored class actions, were inconsistent with the rule itself, and that the federal rule’s spirit favoring class actions was also present in our rule. Further, we gave to the trial court broad discretion to decide whether to certify a case as a class action.
ARCP Rule 23 governs class actions in Arkansas, and the requirements of both subsections (a) and (b) of that rule must be met in order to proceed as a class.
Rule 23(a)
Subsection (a) of the Rule provides:
(a) Prerequisites to Class Action. Where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring all before the court within a reasonable time, one or more may sue or defend for the benefit of all.
In short, Rule 23(a) requires that the questions presented be of interest to many persons, or numerous parties, and that it be impractical to bring them all before the court within a reasonable time. Cooper Communities, Inc. v. Sarver, 288 Ark. 6, 701 S.W.2d 364 (1986). Plaintiffs presented the following testimony in support of class certification: a volunteer for “Seven On Your Side”, a commercial television station’s consumer assistance program, testified that they had received calls from approximately 500 persons who were expressing complaints about Lemarco’s operations; an attorney with Central Arkansas Legal Services testified that office had twenty cases pending against Lemarco; and a member of the Abused Buyers Committee testified that it had a file of approximately 300 persons who had registered complaints against Lemarco. This amounts to over 800 persons interested in the questions raised by plaintiffs against Lemarco. Obviously, it would be impractical to bring that many persons before the court within a reasonable time. Accordingly, the trial court did not abuse its discretion in determining that the requirements of Rule 23(a) had been met.
Rule 23(b)
Subsection (b) of the Rule provides in pertinent part:
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
As the reader can see from the rule, one of the requirements of Rule 23(b) is that the common questions of law or fact must predominate over the questions affecting only individual members of the class. Lemarco’s president, Rusty Dorrell, testified that salesmen were trained by videotape, that they were instructed on what to say and how to make the sales presentations, and that the presentations were virtually the same each time. Further, the mail solicitation and the retail sales contracts were virtually the same for each member of the class. Accordingly, at a minimum, there are common questions of fact arising out of the sales training, the solicitation mailings, the sales presentations, the installment contracts, and appellant’s intentions with regard to all of them. Those common questions would predominate over any questions affecting only individual members. See Hudson, 295 Ark. at 119-20. Accordingly, the trial court did not abuse its discretion in determining that appellees satisfied this requirement of Rule 23(b).
Rule 23(b) also requires that a class action be superior to other available methods for the fair and efficient adjudication of the controversy. As we explained in Hudson, supra, by limiting the issues to be tried in a representative fashion to the ones that are common to all, the trial court can achieve real efficiency. As set out, there are several common questions of fact involved in this case. Even if the trial court eventually determines that the cases have to splinter with respect to some individual claims, efficiency would still have been achieved by resolving those common questions which predominate over individual questions. Finally, pursuing this case as a class action is fair to both sides. Lemarco can offer evidence concerning its sales training, solicitation mailings, sales presentations, installment contracts, and its intentions regarding all of them. It can also present individual defenses to the claims of individual class members, if necessary, once the common questions have been determined. A class action approach is also fair to the class members in that they probably would not sue if they could not do so as a class since it would not be economically feasible to do so. Consequently, the trial court did not abuse its discretion in determining that appellees satisfied this final requirement of Rule 23(b).
Affirmed. | [
48,
-4,
96,
60,
9,
96,
58,
-70,
83,
-125,
39,
83,
111,
-63,
-108,
107,
-13,
109,
-16,
104,
-106,
-78,
5,
66,
86,
-45,
-21,
-59,
57,
79,
-27,
95,
88,
32,
-22,
-43,
-26,
66,
-63,
16,
14,
3,
-101,
67,
-7,
69,
112,
-14,
18,
95,
101,
-100,
-13,
52,
28,
-53,
12,
44,
-7,
51,
-64,
-7,
-101,
15,
-17,
21,
-79,
36,
-102,
-89,
-8,
30,
88,
-71,
34,
-23,
50,
-74,
-126,
116,
43,
-101,
1,
96,
103,
-126,
16,
-49,
-100,
-84,
39,
-97,
31,
-122,
-42,
105,
34,
9,
-74,
-100,
122,
17,
6,
-2,
118,
29,
26,
-83,
7,
-113,
-42,
-95,
-90,
118,
-100,
11,
-17,
7,
-112,
116,
-51,
114,
92,
19,
51,
115,
-124,
-107
] |
Per Curiam.
Our earlier opinion in this case, Medlock v. Pledger, 301 Ark. 483, 785 S.W.2d 202 (1990), held that, in general, a tax imposed upon operators of cable television entities by Act 188 of 1987 was not unconstitutional. Specifically, we held it did not violate the taxpayers’ rights of freedom of speech and freedom of the press guaranteed by the First Amendment, their right to equal privileges and immunities guaranteed by U.S. Const., art. 4, § 2, and Ark. Const., art. 2, § 18, and their right to equal protection of the laws guaranteed by the Fourteenth Amendment and Ark. Const., art 2, § 3. Our holding was that, with an exception discussed below, the tax was not unconstitutional despite the fact that it was imposed on the cable television medium but not upon other media such as newspapers and subscription magazines.
Act 188 was amended by Act 769 of 1989 to impose a similar tax on satellite television companies. Our opinion held that the tax imposed by Act 188 violated the First Amendment for the period of time it imposed the tax upon cable entities but not on satellite television companies which supplied essentially the same service. We remanded the case to the trial Court to determine the taxes to be returned to the taxpayers.
On appeal to the United States Supreme Court, our decision was affirmed with respect to the part holding that the tax was, in general, not unconstitutional. It was reversed, however, with respect to our holding that the First Amendment required similar taxation of the similar services offered by cable and satellite television companies. Leathers v. Medlock, No. 90-29 (U.S. Supreme Ct. April 16, 1991). The case was remanded to this Court for consideration of whether the equal protection clause required similar taxation of the services offered by cable and satellite television companies. We did not reach that issue when the case was before us.
The parties are ordered to rebrief the issue remanded to this Court from the United States Supreme Court. The appellants’ brief will be due 40 days from this date, and the times for remaining briefs to be filed will be governed by the provisions of Rule 7 of the Rules of this Court. | [
-12,
-8,
-3,
-2,
40,
98,
19,
-100,
26,
-79,
-89,
83,
-89,
3,
-108,
99,
-69,
119,
81,
107,
-42,
-94,
39,
98,
-78,
-101,
-109,
-43,
-15,
79,
-20,
110,
76,
49,
-54,
-43,
102,
-49,
-51,
94,
-82,
-127,
-104,
-49,
-3,
68,
48,
105,
112,
75,
49,
-51,
-77,
40,
16,
67,
41,
46,
75,
17,
66,
49,
-70,
-113,
127,
23,
33,
4,
-104,
-59,
-56,
44,
28,
57,
2,
-24,
115,
-90,
2,
-12,
9,
-7,
-88,
32,
99,
-123,
-31,
-3,
-100,
24,
44,
-38,
-67,
-89,
-106,
56,
73,
-49,
-73,
-97,
96,
4,
15,
126,
-58,
-60,
31,
108,
28,
-114,
-124,
-93,
45,
-8,
20,
66,
-17,
35,
16,
116,
-50,
-2,
92,
83,
22,
-109,
-121,
-43
] |
Per Curiam:
The appellee Department of Human Services brought an action to remove the minor child, A.N.C., from the custody of Lon Cochran, her father, and declare the child to be dependent/neglected. The trial court, pursuant to Mr. Cochran’s motion, entered an order declaring him to be an indigent person and appointing present counsel tó represent him. Counsel continued to represent Mr. Cochran throughout an appeal to this Court, in which he prevailed. See Cochran v. Arkansas Department of Human Services, 43 Ark. App. 116, 860 S.W.2d 748 (1993). The appellant’s attorney has now petitioned this Court for attorney’s fees and expenses.
Mr. Cochran’s right to counsel in this proceeding is established by Ark. Code Ann. § 9-27-316(f) (Supp. 1989), which states that a parent or guardian has the right to be represented by appointed counsel, if indigent, during all stages of any proceeding to terminate parental rights or remove custody of a juvenile. That statute also provides that payment of attorney’s fees and costs pursuant to such an appointment is to be awarded from the Juvenile Court Representation Fund. In considering a similar motion, the Arkansas Supreme Court remanded for the trial court to determine the petitioner’s entitlement to attorney’s fees from the Juvenile Court Representation Fund as prescribed by Ark. Code Ann. § 9-27-316. In the absence of any precedent for an allowance of fees under § 9-27-316 to be made directly by this Court, we likewise remand for the trial court to determine the petitioner’s entitlement to attorney’s fees from the Juvenile Court Representation Fund pursuant to § 9-27-316. | [
-48,
-24,
-20,
44,
11,
99,
62,
20,
83,
-29,
101,
-45,
-21,
78,
16,
105,
-13,
43,
97,
105,
-57,
-89,
83,
97,
88,
-5,
-79,
-57,
-77,
-49,
-28,
-98,
73,
112,
-54,
-43,
66,
-56,
-91,
-108,
10,
9,
-101,
108,
121,
71,
48,
-29,
26,
15,
53,
-98,
-61,
44,
57,
-40,
108,
12,
93,
-65,
82,
-78,
-54,
7,
-1,
21,
-79,
116,
-70,
-62,
88,
62,
-104,
57,
0,
-24,
50,
-90,
2,
116,
67,
-103,
40,
112,
-30,
-96,
120,
-25,
-72,
-128,
110,
-97,
-97,
-122,
-37,
89,
75,
79,
-90,
-100,
125,
-108,
15,
-2,
-15,
-52,
54,
110,
10,
-114,
86,
-95,
-49,
17,
-35,
11,
-17,
-51,
32,
85,
-113,
-42,
92,
66,
59,
-109,
-74,
-47
] |
Robert L. Brown, Justice.
The appellant, Gregory Davidson, appeals from a conviction for fraudulent use of a credit card which resulted in a three-year sentence and, further, from a revocation of his probation due to the credit card offenses for which he received a two-year sentence. The sole issue on appeal is whether a conviction under the applicable statute [Ark. Code Ann. § 5-37-207 (1987)] is appropriate, when no property was obtained by the appellant as a result of the fraudulent use.
There were two incidents where the appellant used a stolen credit card for the purpose of obtaining property. The first was on May 20, 1989, at a Tires For Less store in Little Rock. The appellant sought to use the stolen credit card to buy four automobile wheels valued at $419.73. The owner of the store wrote up the ticket, and after the appellant gave him the stolen credit card, the owner asked for identification. The appellant had none, and the store owner refused to turn over possession of the wheels without sufficient identification. The appellant left the store, according to the owner, to get some identification but did not return.
The second incident occurred two days later on May 22, 1989, at Your Car Stereo in Little Rock. The appellant again tried to use a stolen credit card to buy merchandise described as a “box woofer” for a price of $400.00. The salesman ran the credit card through the computer, and the card was declined. He refused to turn the merchandise over to the appellant, and the appellant left the store.
The appellant was subsequently arrested and charged with two counts of fraudulent use of a credit card. He was tried before the trial court, after waiving a jury, and found guilty of both counts on January 24, 1990. Because he had been on two years probation for a theft-by-deception conviction at the time of the crimes, the trial court also revoked the probation at sentencing and assessed two years imprisonment to be served concurrently.
The offense of fraudulent use of a credit card is committed if a person, with the purpose to defraud, “uses a credit card to obtain property or services with knowledge that: (a) the card is stolen . . . .” Ark. Code Ann. § 5-37-207 (1987). The offense is deemed a Class C felony under the statute if the value of the goods “obtained” exceeds $100; otherwise, the offense is a Class A misdemeanor. Id.
The appellant first contends that the statute contemplates the obtaining of property for an offense to occur, and under these facts he obtained no property. We agree that at the very least the statute is ambiguous. One could read it to require the actual obtaining of property. However, one could also focus on the word “use” and interpret the statute as defining a violation when a credit card is used to defraud, whether property is actually obtained or not. Our law is clear that criminal statutes must be strictly construed, with doubts resolved in favor of the defendant. See Breakfield v. State, 263 Ark. 398, 566 S.W.2d 729 (1978). What militates against an interpretation that obtaining the property is not required is the fact that the degree of the offense under the statute is based on the value of property obtained. It is a Class C felony if goods valuing more than $100 are obtained; otherwise, it is a Class A misdemeanor. See Ark. Code Ann. § 5-37-207(b) (1987). It logically follows, then, that obtaining property is required in order for there to be a consummated offense, and we so hold. Under these facts before us, there was no property obtained, and the conviction for fraudulent use of the credit cards cannot stand.
Four foreign jurisdictions have wrestled with the issue of fraudulent use of a credit card where no property was obtained, with varying results. See State v. Gonsalves, 476 A.2d 108 (R.I. 1984); People v. Tarlton, 91 Ill. 2d 1, 434 N.E.2d 1110 (1982); People v. Gibson, 99 Ill. App. 3d 616, 425 N.E.2d 1197 (1981); State v. Williams, 389 So. 2d 384 (La. 1980). Though the statutes involved were somewhat different than ours, the dilemma faced by the respective courts was the same. In both Gonsalves and Gibson, the appellant courts, following jury convictions for felonies, focused on the intent of the legislature to punish fraudulent use of credit cards, regardless of whether property was obtained. Both courts affirmed the convictions by interpreting the statute expansively to include an offense for goods “sought to be obtained” by fraudulent credit card use.
The Illinois appellate court, in People v. Tarlton, considered the penalty for fraudulent credit card use where the defendant was unsuccessful in obtaining goods. The applicable statute, like ours, premised the offense on the value of goods obtained. It provided for a Class 4 felony, if the value was over $150, and a Class A misdemeanor, if the value was that amount or less. In reviewing a bench trial conviction for a Class 4 felony, the court considered the appellant’s argument that the legislature provided no penalty where the credit card use was unsuccessful, and, therefore, the statute was unenforceable when no goods were obtained. The Illinois court rejected the argument and held that when nothing of value was obtained, the defendant was guilty of a Class A misdemeanor as if he had actually obtained goods valued at $150 or less.
Lastly, the Supreme Court of Louisiana, in State v. Williams, supra, reviewed a jury verdict finding the appellant guilty of a felony where no credit or goods were obtained. The court resolved that there was a sufficient evidentiary basis for the jury to find the appellant guilty of an attempt to obtain credit with a stolen credit card, because it was a lesser offense included within the charged crime. The Louisiana court set aside the jury conviction and sentence and remanded the case to the trial court to enter judgment for the lesser offense and impose sentence accordingly.
We decline in this case to read language such as “sought to obtain property” into the criminal statute. We further are reluctant to affirm a conviction under § 5-37-207, which we have held is not applicable to the facts of this case, and then assess a penalty under that statute on the basis that because the appellant obtained no property, he should be treated as an offender who obtained property valued at $100 or less.
The reasoning we find persuasive is that employed by the court in State v. Williams, supra. There is no question that the appellant in the case before us tried to use a stolen credit card on two occasions for merchandise that well exceeded $100 in value. Under the state’s general attempt statute, a person attempts to commit an offense if “he purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense.” Ark. Code Ann. § 5-3-201 (a)(2) (1987). To attempt to use a credit card fraudulently is a Class D felony. See Ark. Code Ann. § 5-3-203(4) (1987).
Here, by twice proffering the stolen credit card, the appellant took a substantial step toward committing the crime, which qualifies as an attempt under state law. Under such circumstances we have held that though charged with a greater offense, a defendant may be found guilty of a lesser included offense. See, e.g., James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983) (aggravated assault is a lesser included offense of the offense charged — attempted capital murder).
Under appropriate facts we will modify a conviction from the greater offense to the lesser included offense and either fix punishment ourselves or remand the case to the trial court for the assessment of punishment. See Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986). This case presents appropriate circumstances, and we hold that sufficient proof was presented to the trial court for a conviction of attempted fraudulent use of a credit card. Due to the fact that the appellant’s two-year probation was also revoked, we choose to remand the matter to the trial court.
We, accordingly, reverse the conviction and remand for judgment of conviction to be entered for the lesser included offense of attempted fraudulent use of credit cards and for sentencing on both the attempt conviction and the revocation of probation.
Reversed and remanded.
Hays, J., dissents.
Glaze, J., dissents in part. | [
112,
-24,
-39,
60,
27,
-32,
58,
-94,
82,
-61,
-26,
18,
47,
-30,
4,
59,
-31,
-35,
116,
96,
-36,
-73,
103,
-32,
-14,
-69,
-101,
69,
-67,
75,
-28,
-124,
29,
112,
-122,
21,
70,
8,
-27,
26,
-122,
2,
27,
102,
-15,
78,
52,
-85,
18,
15,
113,
-113,
99,
47,
52,
-53,
41,
12,
75,
57,
-48,
-13,
-13,
13,
125,
20,
-93,
-91,
-101,
71,
-40,
45,
-100,
57,
1,
-40,
114,
-106,
-126,
84,
75,
27,
-128,
104,
98,
-128,
5,
-49,
-84,
-119,
14,
30,
-99,
-121,
-104,
121,
9,
47,
-98,
-105,
102,
23,
12,
-4,
116,
-99,
17,
108,
35,
-33,
20,
-111,
-84,
100,
-34,
90,
-9,
-73,
-80,
49,
-50,
-62,
92,
86,
126,
-117,
-114,
-105
] |
Judith Rogers, Judge.
The appellant, Edward James Snisky, appeals from an order of the Garland County Chancery Court in which he was found in contempt and which provided a period of visitation for the parties’ minor child with appellee, Sharon Kay Whisenhunt. On appeal, appellant raises two issues in which he contends that the chancery court lacked jurisdiction and thus committed error by both holding him in contempt and in granting appellee visitation with the child. We disagree with appellant’s argument on the first point and affirm the finding of contempt; however, we agree with his second argument and reverse the order of visitation.
The record discloses that the parties in this case cohabitat-ed for a time in the Bahamas and later in the State of Florida. On May 30, 1989, a male child was bom of this'unsolemnized union. Appellee thereafter left Florida with the child and returned to her home in Hot Springs, Arkansas. There, in the Garland County Chancery Court, she initiated a paternity action against appellant. On February 4, 1991, a consent order was entered whereby appellant was recognized as the natural father of the child. As per their agreement, appellee was granted custody of the child, while appellant was given certain rights of visitation and was also required to pay child support. The agreed order further pro vided that “[t]he parties have consented to the Court having both in person [sic] and in rem jurisdiction of this matter, as well as retaining such jurisdiction for any further Orders of Courts.”
It appears that the parties resolved their earlier differences with the result that appellee and the child moved back to Florida to live with appellant. The case file from the Garland County Chancery Court contains a letter written by appellant’s counsel, dated June 13, 1991, informing the Court of the parties’ reconciliation and their agreement to abate the payment of child support. The letter also states that “[b]oth parties are aware that if the situation in Florida does not work to the benefit of all parties, that an action can be brought in Garland County for adjudication of any new issues which may arise.”
After residing in Florida for roughly seven months, appellee again returned to Arkansas with the child. On April 9, 1992, shortly after appellee’s departure, appellant obtained an ex parte restraining order from the Circuit Court of Broward County, Florida, which prohibited appellee from removing the child from the county and granted temporary custody to appellant. It appears from the record that appellant obtained this emergency order based on his representations that appellee’s whereabouts were unknown and that the child was in danger due to appellee’s drug dependency. On April 15, 1992, appellee filed a petition in the Garland County Chancery Court seeking, among other things, the reinstatement of child support. Appellee further asked the chancery court to confirm custody of the child with her, to confirm the court’s jurisdiction, and not to give the restraining order entered by the Florida court full faith and credit. On May 20, 1992, appellee also filed a motion asking that appellant be held in contempt, alleging that appellant’s institution of a custody action in Florida was a violation of their agreement contained in the court’s order of February 4, 1991, that custody matters be litigated in Arkansas.
After having the issue briefed, the chancellor declined to exercise jurisdiction over the matter of custody based on the finding that Florida had become the home state of the child under both the PKPA and UCCJA. An order to that effect was entered on May 27, 1992, and it appears that custody of the child was transferred to appellant in accordance with the Florida court order. The case thereafter proceeded to a hearing on appellee’s motion for contempt. By order of August 23, 1992, the chancellor ruled that appellant was in contempt of the consent order for having brought a custody action in the Florida court. As a result, appellant was required to pay $4,526 into the registry of the court, plus $775 for costs. In addition, the chancellor ordered appellant to bring the child to Arkansas for visitation with appellee from July 4 to August 4, 1992. In the order, the chancellor also made a specific finding that appellant had misled the Florida court in securing the ex parte order. This appeal followed.
In this appeal, no questions are presented involving the interpretation of the provision in the consent order preserving jurisdiction in the Arkansas Court. In other words, we are not asked to decide such issues as whether the jurisdictional provision of the agreed order was sufficiently definite and certain in its terms to support a finding of contempt, or whether the provision constituted a valid forum selection clause as opposed to a simple retention of jurisdiction provision. Indeed, in his response to appellee’s motion for contempt, appellant acknowledged that the order accurately reflected the parties’ agreement that Arkansas would remain the setting for future custody litigation. Instead, as his first point, it is appellant’s sole contention that the chancellor did not have jurisdiction over the contempt proceeding once jurisdiction of the custody matter was relinquished to the Florida Court. We do not agree.
The chancellor here deferred to the Florida court’s exercise of jurisdiction over the issue of custody for the reason that Florida was the child’s home state under both the PKPA and UCCJA. This decision was based on evidence that the child had lived in Florida for the preceding seven months, as well as most of his young life. Despite the provision in the consent order, the chancellor acted well within his discretion in declining jurisdiction over the issue of custody. See Slusher v. Slusher, 31 Ark. App. 28, 786 S.W.2d 843 (1990); Ark. Code Ann. § 9-13-207 (1987). However, under the peculiar circumstances of this case, we do not view the chancellor’s decision to relinquish jurisdiction over the custody matter as having deprived the court of jurisdiction over the contempt proceeding.
The PKPA and UCCJA only specify circumstances under which a court has jurisdiction to make a “child custody determination.” Looking to the PKPA, “child custody determination” is defined as a “judgment, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications.” 28 U.S.C. § 1738A(b)(3) (1982) (emphasis supplied). The chancellor in this case simply declined to entertain jurisdiction of the pending custody determination, which involved the potential modification of the prior custody order. There is a distinction, however, between the modification of a custody decision and the enforcement of a previous court order. When modification of a previous custody order is at issue, the focus is on whether there has been a material change in circumstances and whether modification is in the best interest of the child. Bennett v. Hollowell, 31 Ark. App. 209, 792 S.W.2d 338 (1990). On the other hand, the subject of a contempt proceeding is whether the alleged contemnor willfully disobeyed a previous court order. See e.g. Dees v. Dees, 28 Ark. App. 108, 771 S.W.2d 299 (1989). In this instance, that portion of the order which the chancellor was asked to enforce through contempt did not involve any questions relative to a custody determination, as that term has been defined. At issue was solely whether appellant’s actions were in violation of the agreed order. Since the question of appellant’s contempt did not touch upon the subject of child custody, jurisdiction of the contempt proceeding was not governed by the PKPA. Therefore, the chancellor’s refusal of jurisdiction over the custody matter pursuant to the PKPA did not affect the chancery court’s inherent authority to enforce its order with regard to an issue unconnected with the custody determination. In sum, under these facts, we hold that the chancery court retained juris diction over the issue of whether appellant was in contempt of the agreed order.
As part of this first issue, appellant also contends that he cannot be held in contempt for taking advantage of the federal statute by filing an action for modification in the child’s home state. While appellant’s pursuit of custody in Florida was in keeping with the PKPA, his actions were, nevertheless, in disregard of his agreement, which was incorporated as an order of the court, that Arkansas remain the forum for custody litigation. As the argument is presented, we can find no error in the chancellor’s determination that appellant not be allowed to disobey a court order with impunity.
As his second issue, appellant argues that the chancellor lacked jurisdiction to grant appellee visitation rights with the child. We agree that the chancellor’s order of visitation was inconsistent with his decision favoring jurisdiction in the Florida court. As noted above, the definition of “custody determination” in the PKPA does include orders providing for visitation with the child. Once the chancellor declined jurisdiction over the custody determination, it follows that the chancery court no longer had jurisdiction to order a period of visitation. It is apparent that the chancellor’s action was prompted by appellant’s failure to bring the child to Arkansas for the hearing as appellant had assured the court he would do at a previous hearing. While the chancellor’s dismay is understandable, we cannot uphold the order of visitation. We must therefore reverse on this point.
Affirmed in part; reversed in part.
Jennings, C.J., and Pittman, J., agree.
The general rule is that before a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties imposed upon him and the command must be expressed rather than implied. Arkansas Department of Human Services v. Gruber, 39 Ark. App. 112, 839 S.W.2d 543 (1992).
Choice of forum clauses in contracts have generally been held binding, unless it can be shown that the enforcement of the forum selection clause would be unreasonable and unfair. Nelms v. Morgan Portable Building Corp., 305 Ark. 284, 808 S.W.2d 314 (1991). For cases discussing such clauses in the context of custody litigation, see Crites v. Alston, 837 P.2d 1061 (Wyo. 1992); In re Marriage ofBeuche , 550 N.E.2d 48 (Ill. App. Ct. 1990); In re Marriage of Hilliard, 533 N.E.2d 543 (III. App. Ct. 1989). | [
-111,
-26,
-46,
124,
43,
-32,
46,
-108,
114,
-21,
55,
-45,
-87,
-61,
20,
105,
107,
107,
96,
106,
-61,
-74,
87,
66,
118,
-13,
-15,
95,
-77,
-52,
-19,
-42,
72,
32,
-54,
-43,
70,
-63,
-25,
-108,
-58,
1,
-71,
100,
-47,
-125,
48,
-5,
82,
79,
49,
15,
-77,
44,
125,
-61,
-20,
44,
-37,
100,
-48,
-72,
-101,
14,
95,
2,
-109,
-76,
-112,
38,
88,
46,
-104,
57,
32,
-23,
115,
-106,
-122,
116,
79,
-71,
-104,
20,
99,
1,
13,
-25,
-72,
25,
-90,
-65,
-99,
-26,
-102,
120,
11,
69,
-66,
-73,
124,
84,
43,
122,
107,
-115,
60,
108,
42,
-114,
-42,
-71,
6,
48,
-124,
50,
-30,
67,
20,
81,
-49,
-16,
84,
70,
115,
-101,
-66,
-14
] |
Judith Rogers, Judge.
The question presented in this appeal is whether the Arkansas Public Service Commission correctly found that an ordinance of the City of Little Rock (the City) that required AT&T Communications of the Southwest, Inc. (AT&T) to pay a certain fee for the privilege of using the public streets was valid. For reversal, AT&T relies on three points: (l)(a) the City lacked the authority to enact the ordinance, specifically that Ark. Code Ann. § 14-200-101 (1987) does not provide such authority and that Ark. Code Ann. § 23-17-101 (1987) bars such action by the City, and (b) the levy of the ordinance is an unauthorized tax; (2) the ordinance is arbitrary, capricious, and discriminatory; and (3) the ordinance is unreasonable and therefore an unconstitutional burden on interstate commerce.
On July 5, 1989, the City adopted an ordinance that granted each provider of interstate and intrastate toll (long distance) telephone services in the City a franchise to use the City’s public ways. The ordinance was enacted and the complaint was heard pursuant to Ark. Code Ann. § 14-200-101, which authorizes any city to enact by ordinance “terms and conditions upon which the public utility may be permitted to occupy the streets, highways, or other public places within the municipality....” The ordinance also levied a $.004 per minute charge on all long distance tele phone calls that are billed to a City service address. On July 25, 1989, AT&T challenged the ordinance by filing a complaint with the Arkansas Public Service Commission. The Commission designated an administrative law judge (A.L.J.) to hear the complaint. After a hearing on January 28 and 29, 1992, the A.L.J. issued Order No. 17 on October 5, 1992, finding the ordinance valid and dismissing AT&T’s complaint. Subsequently, the order was adopted as an order of the Commission, and AT&T appeals from this order. Briefs in support of the Commission’s dismissal of the complaint have been filed by the City and the Commission.
For its first point, AT&T contends that the City lacked the authority to enact the ordinance because telephone and telegraph companies have been granted the right to maintain their lines on public streets by the Arkansas General Assembly and that the levy imposed on AT&T by the ordinance is an unauthorized tax. AT&T relies on Ark. Code Ann. § 23-17-101(a), first enacted in 1885, which provides in part that:
Any person or corporation organized by virtue of the laws of this state or of any other state of the United States or by virtue of the laws of the United States, for the purpose of transmitting intelligence by magnetic telegraph or telephone, or other system of transmitting intelligence which is the equivalent of telephone or telegraph and which may be invented or discovered, may construct, operate, and maintain the telegraph, telephone, or other lines necessary for the speedy transmission of intelligence along and over the public highways and streets of the cities and towns of this state; across and under the waters and over any lands or public works belonging to this state[.]
In response, the City and the Commission contend the City has the authority to impose the levy in issue for AT&T’s use of the public streets and its levy is not an unauthorized tax. For purposes of this appeal, however, we need not decide whether the City has the authority to exact compensation for the use of its streets because we agree with AT&T’s contention that the fees assessed under the City’s ordinance amount to a general revenue-raising scheme and therefore are taxes that have not been approved by the vote of the people as required by Ark. Code Ann. § 26-73-103 (1987).
At the hearing, Earl Paul, Deputy City Manager, testified about the development of the ordinance. He stated that the City recognized at the beginning of the 1988 budget cycle a need for additional sources of revenues for the City and began to search for sources of revenue that could be “tapped” by the City. He testified that because providers of local telephone service and other utilities were paying a franchise fee, the City considered the possibility of a franchise fee for long distance providers who use public rights-of-way in the provision of service. Mr. Paul stated that he met with long distance providers during 1988 in an effort to understand the technology involved in the service ' and to discuss the type of fee that “would not pose an onerous burden administratively on the company or the city.” He further stated that the City knew its need for revenues and tried to design the ordinance to attain that amount of money. He testified that the City knew how much revenue it would try to generate by the levy and that city officials prepared estimates of the amount of revenue that would be generated by varying approaches to the structure of the levy. He also stated that the City worked with the providers to structure a fee that could be collected by the providers but passed on to its customers and finally arrived at a formula based on minutes of use. Mr. Paul testified that although the long distance providers wanted the fee based on percent of revenue, City officials believed it would be more equitable to base the fee on minutes of use. The City expected the revenue produced by the ordinance to be approximately $1,000,000.00 annually. Mr. Paul testified that the revenue would be spent for all municipal purposes without restriction; that the revenue would not be dedicated to any particular purpose, including any purpose associated with telephone service; and that the revenue would not be isolated or segregated from other general funds.
AT&T witnesses discussed AT&T’s operations and its use of the City rights-of-way. Ed Moore explained that the 1983 divestiture, the separation of Southwestern Bell Telephone (SWB) and the other Bell operating companies from AT&T, required each company to conduct its business separately and independently from AT&T. Mr. Moore stated that divestiture caused no change in the occupation of city streets or public rights-of-way, although technological changes have caused each company to introduce new apparatus within its network. The record shows that AT&T maintains facilities in the public rights-of-way, consisting of fiber optic cables that in the aggregate have a total length of twenty-three miles. In addition, AT&T obtains access to originating and terminating caller locations in the City over the facilities of SWB, a substantial portion of which occupy public rights-of-way in the City.
Charles Venus, an economist and expert witness for AT&T, testified that the charge levied by the City is in essence a tax. He stated:
It makes a difference that the funds derived from the tax are used by the City for all sundry and general purposes [for which] the City spends public funds [.] That is what we call general revenue and it’s normally produced by a tax and not a fee. Normally something allocated to general revenues is a tax and something allocated to special revenues or to special services is a fee. The occupation of streets and alleys and other rights-of-way is subject to direct assignment or direct allocation since it’s a divisible service. This would suggest that a fee would be the appropriate charge as opposed to a tax.
The A.L.J. in his order limited his review of the levy’s classification to an assessment of the minutes of use formula employed by the City and found that the formula was nondiscriminatory and reasonable. The A.L.J. in his order and the Commission at oral argument have, perhaps understandably, displayed some reluctance to make a judicial interpretation of the levy’s status as a tax or a fee.
The supreme court has discussed the difference between a fee and a tax in several cases. In City of Marion v. Baioni, 312 Ark. 423, 850 S.W.2d 1 (1993), the court addressed certain sewer and water “tap and access fees” that the city charged developers of residential land in and around the city. The chancellor found that the ordinances were invalid because the fees assessed amounted to a general revenue raising scheme and were therefore “taxes” that had not been approved by a vote of the people as required by Arkansas Code Annotated § 26-73-103, which provides that a municipality’s ordinance levying a tax is not valid until the tax is adopted by the voters of the city at a spe cial or general election. The supreme court discussed fees and taxes as follows:
The distinction between a tax and a fee is that government imposes a tax for general revenue purposes, but a fee is imposed in the government’s exercise of its police powers. City of North Little Rock v. Graham, 278 Ark. 547, 647 S.W.2d 452 (1983). An example of a fee charged in the exercise of a city’s police power is found in Holman v. City of Dierks, 217 Ark. 677, 233 S.W.2d 392 (1950). There, the court held that an “annual sanitation charge” of $4.00 per business and residence which was to pay for fogging the city with insecticide three times a year was a fee, not a tax, for services to be rendered. On the other hand, the Graham court considered the validity of a North Little Rock ordinance which imposed a $3.00 per month “public safety fee” on the water bill of each household, business and apartment resident for the purpose of increasing the salaries of the city policemen and firemen and held such a fee was in actuality a tax because the so-called fee was for the cost of maintaining a traditional governmental function and services already in effect and not for a special service as was the case in the Holman case. 278 Ark. at 549, 647 S.W.2d at 453. As is illustrated by the Graham decision, this court in determining whether a governmental charge, assessment or fee is a tax is not bound by how the enactment or levy labels it. See also City of Hot Springs v. Vapors, 298 Ark. 444, 769 S.W.2d 1 (1989); cf. Rainwater v. Haynes, 244 Ark. 1191, 428 S.W.2d 254 (1968).
City of Marion v. Baioni, 312 Ark. at 425, 850 S.W.2d at 2. In finding the charge a fee, the court in Baioni went on to state:
Of major importance, we point out that the city ordinances require the tapping and access fees to be segregated and placed into accounts to be used solely and exclusively to expand the capacity of the city’s water and sewer systems. In other words, these funds will be used directly to benefit the new users and for no other purposes.
312 Ark. at 427-28, 850 S.W.2d at 3. The court also distinguished Baioni from “situations where municipalities have imposed fees to underwrite the costs of a special service to a new development but instead the monies benefitted the general public.” Id.
In City of North Little Rock v. Graham, 278 Ark. 547, 647 S.W.2d 452 (1983), the court addressed whether a public safety fee was a fee or a tax. The court noted that if it were a tax, it was void because it was never voted on by the voters. The court stated:
Taxes are enforced burdens exacted pursuant to statutory authority. Miles v. Gordon, 234 Ark. 525, 353 S.W.2d 157 (1962). Municipal taxes are those imposed on persons or property within the corporate limits, to support the local government and pay its debts and liabilities, and they are usually its principal source of revenue. 16 E. McQuillin, Municipal Corporations § 44.02 (3rd ed. 1979).
There is a distinction between a tax imposed for general revenue purposes and a fee charged in the exercise of police power. Parking. Authority of Trenton v. Trenton, 40 N.J. 251, 191 A.2d 289 (1963). An example of a fee charged in the exercise of police power is found in Holman v. City of Dierks, 217 Ark. 677, 233 S.W.2d 392 (1950). In Holman we held that an “annual sanitation charge” of $4.00 per business and residence which was to pay for fogging the city with an insecticide three times á year was a fee “for services to be rendered” and not a tax.
City of North Little Rock v. Graham, 278 Ark. at 548-49, 647 S.W.2d 453. Because the charge was to pay for a salary increase for policemen and firemen, the court found that the money was a contribution toward the cost of maintaining the traditional governmental functions of police and fire protection and concluded that it was a tax. Id.
In the case at bar, the City responds that the charge is not a tax but is imposed as an exercise of its police powers. The City also maintains that the fee is the charge imposed for a special service, that of utilization of public streets and rights-of-way in excess of normal traffic purposes, and not the cost of maintaining a traditional governmental function or services already in effect. In support of its position, the City refers this court to Mackay Telegraph & Cable Co. v. City of Texarkana, 199 F. 347 (W.D. Ark. 1912). That case involved an ordinance requiring the utility to place certain wires underground. In its discussion, the court stated: “The city may impose, under its police power, reasonable requirements on the company as to the manner of construction and maintenance of its line.” 199 F. at 349.
The City also cites Alpert v. Boise Water Corporation, 118 Idaho 136, 795 P.2d 298 (1990), in which a city’s authority to grant gas and water utility franchises and impose franchise fees was challenged. The court found that the three percent charge on gross revenue was a valid consideration for the cities granting the franchises and agreeing not to compete with the utilities. In discussing the difference between a tax and a franchise fee, the court approved the following language: “In a general sense a fee is a charge for a direct public service rendered to the particular consumer, while a tax is a forced contribution by the public at large to meet public needs.” 795 P.2d at 307.
In another Idaho case, City of Hayden v. Washington Water Power Co., 108 Idaho 467, 700 P.2d 89 (Ct. App. 1985), the city attempted to impose a franchise fee of five percent of gross revenue on a utility already possessing a franchise from the city. The court noted that a city has an inherent right to enact valid police power regulations, even if contracts are thereby affected, but the court found that the police power is limited to governmental acts promoting the health, comfort, safety, and general welfare of society, and that it does not embrace revenue measures. 700 P.2d at 91. The court stated: “We are not persuaded that the franchise fees at issue here represent exercises of the police power. Neither does the record contain a showing that the fees are incidental to a scheme of supervision, inspection or control in the discharge of the police power.” 700 P.2d at 91.
In the case at bar, the City held no election, presumably in reliance on Ark. Code Ann. § 14-200-101 , which provides in pertinent part:
(a) Acting by ordinance or resolution of its council or commission, every city and town shall have jurisdiction to:
(1) Determine the quality and character of each kind of product or service to be furnished or rendered by any public utility within the city or town and all other terms and conditions upon which the public utility may be permitted to occupy the streets, highways, or other public places within the municipality, and the ordinance or resolution shall be deemed prima facie reasonable[.]
This section was enacted in 1935 as a part of the act forming the Department of Public Utilities, No. 324, Acts of 1935, and this act is regulatory in nature. See Southwestern Bell Tel. Co. v. Matlock, 195 Ark. 159, 168, 111 S.W.2d 500, 505 (1938). Clearly, § 14-200-101 gives the City the right to impose valid police power regulations; however, it remains for this court to determine whether the levy imposed by the City is a lawful exercise of that police power.
The City has also referred this court to language from two supreme court cases that it argues is authority for the imposition of the levy. We have reviewed those cases and find they are not on point and do not support the City’s contention that the imposition of the levy in the case at bar was a lawful exercise of its police power. In Southwestern Bell Telephone Co. v. City of Fayetteville, 271 Ark. 630, 609 S.W.2d 914 (1980), the supreme court addressed whether a governmental authority had to reimburse the utility for the cost of relocation of their telephone poles and gas meters because of a street improvement project. In City of Fort Smith v. Arkansas Public Service Commission, 278 Ark. 521, 648 S.W.2d 40 (1983), the court affirmed a Commission order that directed public utilities to eliminate municipal utility or fran chise taxes from their base rates. It is clear that in neither case was the validity of a franchise tax challenged.
Here, the record clearly shows that the fee is a revenue-raising measure and the funds will be used as general revenue. The City admits that the fee was designed to collect a specific amount of money needed by the City for its operations. Pursuant to a Commission docket, the money will be collected by the long distance providers from those members of the public making or paying for interLATA or interstate calls and will be remitted to the City. We are not persuaded that the levy represents an exercise of the City’s police power. Because a municipality’s ordinance levying a tax is not valid until the tax is adopted by the voters of the city at a special or general election pursuant to § 26-73-103, we reverse. Our finding renders appellant’s other arguments for reversal moot, and we need not address them.
Reversed.
Mayfield, J., concurs.
Cooper, J., not participating.
This code section was amended in 1993 to add “Except as provided in § 23-4-201” at the beginning and to insert “and rates for,” after “each kind of.” The section is now codified at § 14-200-101 (Supp. 1993). | [
84,
122,
-12,
-34,
73,
64,
18,
-80,
91,
-71,
-91,
83,
47,
-64,
-99,
113,
-77,
-1,
84,
99,
-45,
-90,
69,
96,
78,
-41,
-13,
-41,
-78,
79,
-28,
-82,
110,
49,
-54,
-107,
102,
74,
-51,
-34,
106,
10,
-117,
77,
-7,
-57,
32,
-85,
50,
-61,
49,
-115,
-13,
44,
24,
-62,
-24,
44,
91,
-92,
27,
-13,
-72,
-113,
127,
6,
1,
36,
-72,
-123,
-16,
12,
-112,
49,
-120,
-56,
115,
-90,
-126,
100,
13,
-39,
12,
32,
99,
1,
37,
-17,
-68,
-116,
6,
-70,
-105,
-90,
-78,
57,
66,
5,
-98,
22,
-20,
-122,
67,
-2,
-41,
-60,
91,
108,
9,
-114,
-44,
-93,
-89,
96,
-124,
83,
-17,
99,
16,
116,
-50,
-46,
95,
87,
23,
-118,
22,
-12
] |
Melvin Mayfield, Judge.
Lee Scallion appeals from the Jefferson County Chancery Court’s dismissal of his petition to be declared the natural father of Hannah Whiteaker, born on January 30, 1990. Appellant argues that it was error for the chancellor to hold his claim barred by the doctrine of res judicata. We agree and therefore reverse and remand this cause.
The record shows that when Hannah was conceived and bom, the appellees, James Whiteaker and Marian Whiteaker (now Scallion), were married. In 1991, James Whiteaker filed a divorce complaint against Marian Whiteaker and sought custody of the parties’ two children, one of whom was Hannah. In her answer and counterclaim, Mrs. Whiteaker stated that the two children were born of the marriage, but in an amendment to the counterclaim, she stated that Hannah was not the child of James Whiteaker. In the divorce decree of July 19, 1991, the chancellor found that the two children were born of the marriage and custody of the children was awarded to Mr. Whiteaker.
On August 5, 1992, the appellant, Lee Scallion, filed his petition seeking blood tests to establish paternity of Hannah. Although Marian Scallion was named a defendant in the petition, she waived appearance at the trial court level and has not filed a brief in the appeal of this case. In his petition, the appellant stated that he and Marian Whiteaker had married and that she had attempted to testify at the divorce hearing that James Whiteaker was not the father of the child but her testimony was excluded by the chancellor. By an amended answer, Mr. Whiteaker pleaded the defense of res judicata.
After hearing arguments of counsel on the issue of res judi-cata, the chancellor found the mother and appellant in privity because of their marriage, and he stated that appellant “does not have the legal right to pursue this action because of the prior decree between his present wife and her former husband concerning paternity.” He concluded that res judicata barred appellant’s action.
Under the doctrine of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Department of Human Servs. v. Seamster, 36 Ark. App. 202, 204, 820 S.W.2d 298, 299 (1991). The doctrine of collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated by the parties in the first suit. Id. There is no question that, in the courts of this state, the parents of the child are bound by the doctrine of res judicata when the issue of paternity has been litigated in a prior action between them. Id.
The parties here agree that appellant was not a party to the divorce action. However, Mr. Whiteaker contends on appeal that appellant was not a stranger to the action because he appeared at the hearing and testified that he was Hannah’s father, and that his failure to intervene in the divorce action precludes his claim. We disagree. One who does not intervene, whether or not by right, is not at risk of being bound by the litigation, and is not subject to res judicata. UHS of Arkansas, Inc., v. City of Sherwood, 296 Ark. 97, 103, 752 S.W.2d 36, 39 (1988).
We also disagree with appellee’s assertion that Jack v. Jack, 796 S.W.2d 543 (Tex. Ct. App. 1990), supports his argument that appellant’s claim was barred by res judicata. In that case, as in the case at bar, a divorce decree named two children of a marriage, and the mother’s husband on remarriage petitioned for a finding of paternity of the younger child. The court found that for the claim to be barred by res judicata, the petitioner must have had an opportunity to participate in, or must have somehow been a part of, the divorce proceedings and the fact that the mother and the petitioner were married less than six months after her divorce from the presumed father failed to establish privity between the mother and the petitioner. Id. at 547. Although the court concluded that the claim was not barred by res judicata, it held the trial court properly dismissed the petitioner’s claim because Texas law did not allow a person in the petitioner’s position to rebut the marital presumption.
Although we do not find Arkansas cases addressing this precise issue, other courts have applied the same principles that the Texas court applied in factually similar cases. In Nostrand v. Olivieri, 427 So.2d 374 (Fla. Dist. Ct. App. 1983), the mother acknowledged in a marital separation agreement that the child was born of her marriage and therefore the court found she was estopped from denying her former position. Noting that courts of other states were in accord, the court held that the same principles did not apply to the mother’s present husband because he was not a party to the marital settlement agreement or the proceedings which dissolved the prior marriage. Id. at 376. Also, in a Tennessee case, In re Adoption of Johnson, 678 S.W.2d 65 (Tenn. Ct. App. 1984), the current husband of the mother sought to adopt the child that the mother had acknowledged as a child bom of her prior marriage. The alleged natural father (who was not the former husband) agreed to the adoption. The former husband argued the adoption petition was barred by res judicata. The court found that the mother was estopped to deny that the child was born of the former marriage; however, the court found that the current husband and the alleged natural father were not parties to the prior litigation and therefore did not suffer from the same infirmities. Id. at 68. See also Gatt v. Gedeon, 20 Ohio App.3d 285, 485 N.E.2d 1059 (1984).
In his order, the chancellor in the case at bar found that actual privity is not a prerequisite to the application of res judicata under Arkansas law and cited Nichols Brothers Investments v. Rector-Phillips-Morse, Inc., 33 Ark. App. 47, 801 S.W.2d 308 (1990), in support of this finding. However, that case involved a finding of agency, and the court held that a judgment in favor of the principal, sued alone, is res judicata in a subsequent action against the agent. 33 Ark. App. at 50, 801 S.W.2d at 310. The court found that the appellees were sufficiently identified with the plaintiff in the former action to avail themselves of res judicata in the second action. Id. The supreme court and this court have found that precisely identical parties are not required and a substantial identification is sufficient in cases where only the capacity of the party differs. When a party to one action in his individual capacity and to a second action in his representative capacity is, in both cases, asserting or protecting his individual rights, the doctrine of res judicata binds him. See Terry v. Tay lor, 293 Ark. 237, 239, 737 S.W.2d 437, 438 (1987); Estate of Knott v. Jones, 14 Ark. App. 271, 274, 687 S.W.2d 529, 531 (1985). We do not find the same substantial identification in the case at bar.
We agree with appellant’s argument that his petition was not barred by res judicata, and we therefore reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Jennings, C.J., and Robbins, J., agree. | [
-80,
-20,
-3,
104,
26,
64,
42,
60,
122,
-125,
103,
83,
-21,
-33,
28,
113,
98,
105,
81,
106,
-41,
-73,
7,
-96,
114,
-13,
-7,
86,
-80,
-49,
-27,
-10,
76,
120,
-54,
-42,
70,
-54,
-121,
84,
-122,
31,
107,
108,
-48,
-61,
38,
-8,
-78,
15,
53,
-98,
-77,
42,
61,
-17,
-54,
46,
-37,
56,
-64,
-104,
-114,
20,
-33,
22,
-79,
52,
-78,
-93,
72,
106,
-120,
25,
8,
-24,
51,
-74,
-126,
116,
79,
41,
9,
114,
102,
1,
28,
-9,
-72,
-120,
127,
-65,
29,
-90,
-37,
80,
99,
111,
-73,
-107,
125,
80,
47,
120,
-18,
12,
28,
100,
10,
-50,
-42,
-103,
-59,
80,
-108,
2,
-13,
-57,
96,
81,
-61,
-28,
93,
-61,
51,
-101,
-106,
-10
] |
John B. Robbins, Judge.
On June 10, 1992, appellant Larry D. Hamblen, Jr. was convicted by a jury of battery in the first degree and permitting abuse of a child. Appellant was sentenced to twenty (20) years and fined $15,000.00 on the battery charge and sentenced to ten (10) years and fined $10,000.00 for permitting child abuse, with the sentences to run concurrently. Appellant contends on appeal that the trial court erred in admitting into evidence certain testimony which had been given at an earlier hearing in juvenile court. We find no error and affirm.
The testimony presented in this case revealed that on October 27, 1991, appellant, Larry D. Hamblen, took his five-week-old son, Kendall A. Hamblen, to the emergency room at Methodist Hospital in Jonesboro. Dr. L. K. Austin, a practicing pediatrician in Jonesboro, testified that he attended the five-week-old child on the afternoon of October 27, 1991. Dr. Austin stated that Kendall had multiple bruising on his arms, the palms of his hands were bruised, and that the child was in severe pain when moving his lower extremities. X-rays of Kendall’s lower extremities revealed multiple fractures below his knees. Both bones above the ankle of Kendall’s left leg and one bone of his right leg were fractured. Dr. Austin testified that a CT scan also revealed swelling of the brain which the doctor opined was due to a shaking syndrome; where you pick up a child and shake him, whiplash-ing the neck and causing the brain to bounce back and forth against the skull. Dr. Austin stated that it takes tremendous force to break bones in a five-week-old infant because the bones are so flexible, some bones not being completely formed and still being partly cartilage. The doctor further stated that, on the basis of his twenty-seven years of experience practicing medicine, in his opinion the injuries sustained by Kendall were the result of child abuse. He stated that appellant’s explanation that the child fell out of a crib was not consistent with his physical findings.
Dr. John Woloszyn, a practicing orthopedic surgeon in Jones-boro, testified that he also attended to the injuries of Kendall on October 27, 1991. In addition to the injuries listed above, Dr. Woloszyn found what he believed to be a typical cigarette burn, or the healed remnants thereof, on the left outside of the child’s arm. He opined that the injuries to Kendall were less than one week old and that the trauma to the legs involved quick, sharply applied force. Dr. Woloszyn also stated that it was his opinion that these injuries were caused by child abuse, and that the appellant’s explanation- to him that Kendall must have banged his leg on something could not have caused these results.
Bill Brown, an employee attending Kendall in the emergency room on the day in question, testified that Kendall was apprehensive and very jumpy anytime someone would speak to him. He stated that appellant was initially very cooperative, but then before anyone mentioned child abuse the appellant stated, “[djon’t accuse me of beating my child. I didn’t do it.” Mr. Brown and Tammy Summers, an LPN on staff at the hospital, both verified the bruising on Kendall’s arm, legs and back.
On October 28, 1991, an emergency custody order was entered by the juvenile division of the Craighead County Chancery Court finding that an, emergency existed and placing the child in the temporary custody of the Division of Children and Family Services. On October 30, 1991, a probable cause hearing was held at which the two parents were present, appellant and Donna Reams, the mother of the child but who was not married to the appellant. The appellant and Miss Reams were both advised of their right to have an attorney present and their right not to testify if they so wished. The following exchange took place as the hearing began:
THE COURT: Do you understand that you have a right to be represented by any attorney in these proceedings?
THE COURT: This is not in the nature of a criminal proceeding, and at this point and time under the law I’m not authorized to appoint an attorney to represent you. Do you understand that? [Appellant’s request for indigent status had previously been denied.]
MR. HAMBLEN: Yes sir.
THE COURT: Miss Reams has indicated to the court that she wants to go ahead and proceed without an attorney with the probable cause hearing today. Do you want to do that also?
MR. HAMBLEN: Yes.
THE COURT: The other thing I would caution you of, Mister Hamblen, and also you likewise Miss Reams, is the court has been advised that the two of you have apparently had some criminal charges filed against you, or will have some criminal charges filed against you as a result of this alleged incident. Is that correct?
THE COURT: I want to caution you that number one, you have the right to refuse to testify in this matter if you choose not to testify, and also advise you that if you do choose to testify and you’re placed under oath in these proceedings that even though these proceedings are not in the nature of criminal proceedings but involve the custody of this child, that anything that you say in this court can and will be used against you in the criminal proceedings. Do both of you understand that?
MR. HAMBLEN: Yes sir.
THE COURT: Do you understand that also?
MS. REAMS: Yes sir.
Both appellant and Miss Reams went on to testify in the juvenile court hearing on October 30, 1991. Miss Reams testified that she had observed the appellant shake the child on several occasions, but that she did not believe “anything happened when this occurred.” When appellant testified he denied ever having “shaken” the child and yet testified, “I never shook him hard.”
On June 8, 1992, the appellant was before the circuit court on the criminal charges. The case against Miss Reams was severed from the appellant’s. Miss Reams’ attorney notified the court and the State that she would exercise her Fifth Amendment right and refuse to testify at appellant’s trial. The State gave notice that it intended to use Miss Reams’ sworn testimony from the juvenile court proceeding as evidence against appellant in his criminal trial. The appellant objected, contending that he was not represented by counsel at the earlier hearing and that a probable cause hearing was not the type of “prior hearing” contemplated by the Arkansas Rules of Evidence. The trial judge ruled in favor of the State and Miss Reams’ testimony was introduced.
Appellant contends on appeal that it was error to admit the testimony of Miss Reams against him. The following is a portion of the testimony given by Miss Reams at the chancery court juvenile division hearing which indicates that appellant did shake the child:
DONNA REAMS
[Hjaving been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:
DIRECT EXAMINATION
BY MR. McCAULEY:
Q You are Donna Reams?
A Yes sir.
Q And you heard the Judge explain to you that you do not have to testify at this hearing?
A Right.
Q Do you wish to testify?
A Yes.
Q You do?
A Uh-huh.
Q You heard the statement of Mr. Moxley about the statement that you gave to the — Officer Beals?
A Uh-huh.
Q Is that accurate?
A Right.
Q And did you observe Mr. Hamblen shake the child on several occasions?
A Uh-huh.
Q How may times?
A About two times, maybe three.
Q Did you think anything happened when this occurred?
A No.
Q Do you think that the shaking was of the nature that could’ve caused the broken legs of the child?
A No, I don’t.
Q Do you have any explanation as to the cause of the broken legs?
A The only thing I can think of is the swing or changin’ a diaper. That’s the only thing we’ve come up with.
Q No other explanation?
A No.
Arkansas Rules of Evidence 804 provides in part:
Rule 804. Hearsay exceptions — Declarant unavailable. —
(a) Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant:
(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement;
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
The question of admissibility of an unavailable witness’s testimony was addressed in Scott and Johnson v. State, 272 Ark. 88, 612 S.W.2d 110 (1981), where the Arkansas Supreme Court stated:
There has traditionally been an exception to the right of confrontation where a witness who testified at a prior trial is unavailable at a later judicial proceeding. State evidentiary rules can fall within this exception if two tests are met. First, the witness must be “unavailable”.... Next, the evidence must be reliable. . . . [Ajdmission depends upon the circumstances surrounding the hearing. In the case of a preliminary hearing admission depends upon what kind of hearing is involved and whether it is a “full fledged” hearing or a limited one.
(Citations omitted.) 272 Ark. at 92-93, 612 S.W.2d at 112-113. In Scott the supreme court cited California v. Green, 399 U.S. 149 (1970), which held that testimony from a preliminary hearing was admissible because the circumstances of the hearing were not “significantly different” but closely approximated those that surrounded a typical trial. The reasons given were: the witness was under oath; the defendant was represented by counsel and had the opportunity to cross-examine the witness; and, the trial was before a tribunal equipped to provide a judicial record.
As the record from the probable cause hearing cited above reveals, appellant was informed of his right to be represented by an attorney but stated that he wanted to proceed without counsel. He and Miss Reams were both specifically told that crimi nal charges were to be filed against them for the same matters before the chancery court, and that they had the right to refuse to testify. They were further informed that “if you do choose to testify and you’re placed under oath in these proceedings that even though these proceedings are not in the nature of criminal proceedings but involve the custody of this child, that anything that you say in this court can and will be used against you in the criminal proceedings.” (Emphasis added). Both appellant and Miss Reams acknowledged that they understood the significance of testifying. Appellant was clearly given the opportunity to cross-examine Miss Reams on her testimony that he shook the child, however he declined to do so. His “motive to develop the testimony” in the chancery case was very similar to his motive in the criminal case; i.e., to avoid any implications of child abuse, so that the child could remain with him and he would not be convicted of child abuse.
Miss Reams was an unavailable witness because she invoked her Fifth Amendment right not to testify. The requirements of Ark. R. Evid. 804(b)(1) were met to allow the introduction of Miss Reams’ earlier testimony. The evidence was clearly reliable because Miss Reams’ motive was also to keep the child in their home. The circumstances and protection of rights afforded the appellant at the probable cause hearing were not “significantly different” from an actual trial. See California v. Green, supra. We find no abuse of discretion by the trial court in admitting the testimony.
Affirmed.
Jennings, C.J., and Mayfield, J„ agree. | [
-16,
108,
-83,
-68,
25,
99,
56,
60,
19,
17,
-10,
-13,
-83,
-51,
69,
107,
50,
125,
81,
117,
-47,
-77,
23,
1,
-94,
-13,
123,
-41,
-13,
106,
-12,
-12,
73,
112,
-118,
-11,
-126,
72,
-57,
80,
-62,
-111,
-69,
-4,
83,
-126,
-92,
122,
120,
14,
49,
30,
-122,
43,
62,
-34,
105,
40,
91,
59,
-47,
-71,
-88,
5,
-83,
16,
-93,
-122,
27,
-115,
120,
60,
-52,
48,
-126,
-24,
50,
-78,
-126,
-12,
77,
-87,
12,
96,
-26,
33,
29,
109,
-16,
-8,
47,
62,
-99,
-90,
-101,
96,
66,
15,
-73,
-67,
118,
80,
26,
-8,
99,
68,
92,
108,
-58,
-113,
-108,
-65,
-115,
36,
-112,
48,
-21,
-89,
2,
112,
-49,
-14,
92,
-59,
51,
-109,
-101,
-74
] |
James R. Cooper, Judge.
The appellant was convicted in a bench trial of possession of cocaine. He was placed on three years supervised probation, fined $500.00 and assessed court costs. For reversal, he argues that the evidence is insufficient to support the verdict.
On appeal, we view the evidence in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. LaRue v. State, 34 Ark. App. 131, 806 S.W.2d 35 (1991). Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to speculation or conjecture. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992).
The record reveals that on July 18, 1991, police officers entered a residence in Jonesboro, Arkansas, pursuant to a search warrant. The appellant, who was the only person present in the residence when the warrant was executed, was found lying on a bed in a robe and underwear. The officers testified that a plate with .024 grams of cocaine on it was on the bed within arm’s reach of the appellant. This was seized, as were numerous items of drug paraphernalia including hemostats, scales, rolling papers, marijuana seeds, razor blades, a vial, a syringe, and $219.00. One officer testified that the serial numbers on two $20.00 bills found matched those of the bills used in a controlled buy made earlier at this residence.
Nancy Davis testified that the house belonged to her and that the room in which the appellant was found was her bedroom. She stated that she lived in the house with her son and that, although the appellant spent the night at the house occasionally, he was not living there, did not keep clothes there, did not help pay the bills, and did not have a key to the house. She testified that she and the appellant had an argument on the night of the appellant’s arrest, that she left the house around midnight, that the appellant was the only person in the house when she left, and that there was not a plate on the bed. Finally, she testified that she did not use drugs and that she had never seen the appellant with drugs.
The appellant argues that the State did not prove beyond a reasonable doubt that he exercised care, control and management over the contraband and that he knew the matter possessed was contraband. His argument focuses on the fact that this was not his residence and that he had no ownership or possessory interest in the house. However, the appellant’s argument is misplaced.
It is not necessary to prove actual or physical possession in order to prove a defendant is in possession of a controlled substance. Ramey v. State, 42 Ark. App. 242, 857 S.W.2d 828 (1993). Instead, a showing of constructive possession, which is the control or right to control contraband, is sufficient. Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990). Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the accused and subject to his control. Cerda, supra.
In the case at bar, the evidence shows that the controlled substance was retrieved from an area which was immediately and exclusively accessible to the appellant at the time of his arrest. See Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991); Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986). The contraband was in plain view, in the appellant’s immediate proximity, and the appellant was the only person in the residence at the time of the search. We think these circumstances are enough to permit the trial court to find the appellant guilty of possession of a controlled substance.
The appellant also argues that there was no evidence presented to establish he possessed a usable amount of cocaine as defined in Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), as an amount “sufficient to be useable in the manner in which such a substance is ordinarily used.” 302 Ark. at 322. However, we think that the appellant’s reliance on Harbison is misplaced. The Harbison case involved a cocaine possession charge based only on possession of a bottle containing a trace amount of cocaine dust or residue; there was evidence in Harbison to show that the quantity of cocaine was too small to weigh and insufficient to have any effect on the human system. The Supreme Court reversed, holding that possession of a controlled substance must be of a measurable or usable amount to constitute a violation of Ark. Code Ann. § 5-64-401 (1987); Harbison, supra; Kellogg v. State, 37 Ark. App. 162, 827 S.W.2d 166 (1992).
However, whereas the cocaine in Harbison was in an amount too small to be either used or measured, there was clearly a measurable amount of cocaine present in the case at bar.
Unlike in Harbison, the testimony in the case at bar indicated that the cocaine was capable of quantitative analysis, could be seen with the naked eye, was tangible and could be picked up. We find this evidence sufficient for the fact finder to determine that the substance was of a measurable amount.
The appellant also argues that there were discrepancies regarding the search and the search warrant. The appellant did not make this specific objection below, and we do not consider arguments made for the first time on appeal. Magar v. State, 39 Ark. App. 49, 836 S.W.2d 385 (1992). Accordingly, we find no error and affirm.
Affirmed.
Pittman and Robbins, JJ., agree. | [
48,
-18,
-27,
124,
42,
96,
59,
-72,
98,
-89,
116,
83,
-27,
-64,
17,
105,
34,
127,
84,
97,
-51,
-77,
99,
65,
-30,
-73,
56,
-43,
-75,
-50,
-28,
84,
76,
52,
-58,
-43,
102,
72,
-25,
80,
-118,
1,
-70,
79,
100,
-62,
36,
35,
-78,
14,
49,
-114,
-29,
41,
25,
-34,
107,
44,
75,
60,
104,
-71,
-102,
-105,
-53,
22,
-93,
100,
-97,
39,
-8,
28,
-100,
48,
0,
122,
115,
-74,
-126,
116,
97,
-119,
12,
96,
98,
1,
29,
-51,
56,
-128,
51,
-73,
-98,
-90,
-38,
73,
67,
109,
-73,
-68,
108,
112,
12,
-24,
115,
85,
93,
108,
43,
-114,
-108,
-69,
13,
33,
-34,
121,
-25,
97,
116,
117,
-51,
-30,
92,
84,
81,
-101,
-102,
-42
] |
Robert L. Brown, Justice.
This case comes to us as a one-brief case, the appellee Karen Jacobs having failed to respond. The dispositive issue is whether the trial court’s failure to enter an order disposing of the appellee’s motion for a new trial within thirty days divested the trial court of jurisdiction to act on the motion thereafter.
We hold that it did, and we reverse the trial court’s order granting a new trial entered more than thirty days after the motion was filed.
The facts are these. The appellee Jacobs sued the appellant Phillips for damages resulting from an automobile accident on Highway 67 East near Hope, Arkansas. A jury returned a verdict in favor of the appellant on March 12, 1990. The appellee then filed a motion to set aside the verdict and to grant a new trial under ARCP Rule 59 on April 3,1990. The basis for the new trial motion was that the verdict was clearly contrary to the preponderance of the evidence. No written order either granting or denying the motion was entered within thirty days of that motion. The trial judge did, according to the appellant, write the parties a letter dated May 3, 1990, granting the new trial. However, that letter was not entered of record and is not before us on appeal. On May 17, 1990, forty-four days after the filing of the motion, the trial court entered its order granting a new trial. The appellant then filed this appeal to void the trial court’s order granting the new trial on grounds that the court had no jurisdiction to act on the motion after the thirty day period had expired.
Rule 4(c) of the Arkansas Rules of Appellate Procedure (1989) is the operable rule in this regard, and it states in pertinent part:
Disposition of Posttrial Motion. If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day.
Hence, Rule 4(c) is clear that failure to act within thirty days will be deemed a denial.
We recently held that the effect of this lack of action by the trial court within thirty days was loss of jurisdiction to consider the motion. See Deason v. Farmers & Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989). The Deason facts were substantially similar. A jury verdict was entered against the bank and a judgment followed. The bank moved for a new trial, but the trial court failed to rule on the motion within thirty days. The result was a loss of jurisdiction with respect to that motion in the trial court:
The record is very clear that the motion was not ruled on, taken under advisement, or set for a hearing prior to the close of business on July 5, 1988, the day the 30 days expired. Thus the motion was deemed denied, and the order entered on July 21 was void and of no effect.
299 Ark. at 172; 771 S.W.2d at 752-753.
Though Rule 4(c) was somewhat different prior to the effective date of our Per Curiam of March 14, 1988, which simplified its terms, it consistently has required that trial court to act in some form or fashion on new trial motions within thirty days of filing, and we have previously held that failure to act within that time frame results in loss of jurisdiction to grant the relief requested under the motion. See e.g., Street v. Kurzinski, 290 Ark. 155, 717 S.W.2d 798 (1986). We have further held that a decision by the trial court within the thirty days which is not entered of record fails to meet the dictates of Rule 4(c). See Coking Coal, Inc. v. Arkoma Coal Corp., 278 Ark. 446, 646 S.W.2d 12 (1983).
Nor does ARCP Rule 60(b) invest the trial court with jurisdiction to act on a Rule 59 motion beyond the thirty day period. Rule 60(a) does grant authority in the trial court to act on its own motion to correct clerical errors and mistakes. Rule 60(b) then provides ninety days in which the trial court may, on its motion or any party’s motion, correct the error or “prevent the miscarriage of justice.” [Emphasis ours.] The reference to certain miscarriages of justice in Rule 60(b) is a reference to those clerical errors or mistakes described in Rule 60(a). Rule 60(c) details grounds for setting aside a judgment after ninety days, including new evidence discovered after the expiration of ninety days. New evidence is also a ground for a new trial motion under Rule 59, but that relates to new evidence discovered within ten days of judgment. No other reference to Rule 59 is made in Rule 60(c). Other than the one reference to newly discovered evidence, Rule 60 generally governs relief for mistakes and errors and fraud in obtaining the judgment, which are distinct and apart from those grounds substantially affecting the material rights of a party set out in Rule 59.
Though Rule 60 of the Federal Rules of Civil Procedure is substantially different from our Rule 60, the federal rule like our rule is essentially concerned with correcting mistakes and errors in judgments as well as fraud in obtaining the judgment. The relationship of Fed. R. Civ. P. 60 to Fed. R. Civ. P. 59, which also deals with new trial motions, is, therefore, of some help to us in determining the relationship between our rules. Wright and Miller in their treatise noted the words of one court on the salutary effect of Fed. R. Civ. P. 60(b) in providing relief against judgments unfairly, fraudulently or mistakenly entered but then quoted from the same case to the effect “that it would be a perversion of the rule and its purpose to permit it to be used to circumvent another rule.” Wright & Miller, Federal Practice and Procedure: Civil § 2858, p. 169; quoting from Edwards v. Velvac, 19 F.R.D. 504, 507 (D.C. Wisc. 1956), cert. den., 354 U.S. 942 (1956). We agree. In the Velvac case the rule being circumvented by the request for Rule 60 relief was the rule providing the time frame in which to file a notice of appeal. Similarly, Rule 60 under our Arkansas rules should not be used to breathe life into an otherwise defunct Rule 59 motion. We, accordingly, reaffirm our holdings that when a Rule 59 motion is timely made, the trial court must decide the motion within thirty days of its filing and enter that decision of record. Otherwise, the trial court loses jurisdiction to grant the relief requested in the motion.
We are mindful of previous precedent holding that the trial court loses jurisdiction to act on a motion for a new trial after ninety days from judgment under Rule 60(b) as opposed to thirty days from the motion under Appellate Rule 4(c). See Mullen v. Couch, 288 Ark. 231, 703 S.W.2d 866 (1986). In Mullen, however, the specific question of whether the trial court also lost jurisdiction to grant or deny the motion by not acting within thirty days was not at issue, because the trial court did not grant the motion for a new trial until more than ninety days had passed from entry of judgment. Accordingly, the issue was dispensed with under Rule 60(b).
To the same effect is a court of appeals decision holding that the trial court has ninety days from judgment to grant the relief sought in a new trial motion. See State Farm and Casualty Insurance Co. v. Mobley, 5 Ark. App. 293, 636 S.W.2d 299 (1982). In that case the trial court had not acted on a new trial motion within thirty days of the motion. Though the court of appeals held that the trial court lost jurisdiction over the motion by not granting relief within ninety days from judgment, our holding today emphasizes that jurisdiction to decide the motion was actually lost much earlier than that — after thirty days from the date of the motion.
The trial court, for the foregoing reasons, was devoid of jurisdiction to grant a new trial in the case before us. That order is reversed and remanded for reinstatement of the judgment on the verdict.
Reversed and remanded.
Hays, Glaze, and Corbin, JJ., dissent. | [
-48,
-22,
-11,
44,
9,
97,
48,
24,
65,
-57,
39,
-45,
-81,
-45,
-108,
127,
90,
121,
116,
-23,
68,
-93,
7,
-56,
-10,
-77,
16,
85,
-9,
-53,
-20,
-2,
76,
112,
-54,
-107,
70,
80,
-63,
28,
-114,
-112,
-103,
-28,
-47,
67,
56,
106,
82,
15,
53,
-34,
-29,
47,
19,
71,
-56,
56,
91,
-65,
-64,
112,
-69,
5,
46,
16,
-95,
-123,
-106,
-26,
88,
58,
68,
-79,
56,
-8,
112,
-10,
-62,
84,
107,
59,
40,
32,
98,
0,
88,
-17,
-72,
-88,
6,
30,
-99,
-90,
-103,
72,
73,
45,
-74,
-75,
109,
22,
14,
126,
124,
-43,
89,
-84,
-122,
-50,
-44,
-79,
-105,
33,
2,
11,
-21,
-123,
52,
52,
-50,
-10,
92,
70,
57,
27,
-33,
-110
] |
Donald L. Corbin, Justice.
Appellant, Bob Hankins Distributing Company, brings this appeal to challenge a ruling of the Greene County Chancery Court that upheld the constitutionality of the Arkansas Garnishment Statutes, Ark. Code Ann. §§ 16-110-401 to -415 (1987). We reverse and dismiss.
Appellee, Willie Frances May, obtained two judgments against her former husband, Billy May, on sums that accrued pursuant to rights given her in a decree of divorce. Billy May was an employee of appellant. Two default judgments were obtained against appellant when it failed to respond to two writs of garnishment after judgment. This is the second time this case has been before us. The first time this case was before us, we reversed on procedural issues and remanded it to the trial court to develop the constitutional issue now at bar. May v. Bob Hankins Distrib. Co., 301 Ark. 494, 785 S.W.2d 23 (1990).
Appellant contends the Arkansas Garnishment Statutes violate its rights as a garnishee to the due process of law as guaranteed by the fourteenth amendment to the United States Constitution. Specifically, appellant claims the statutes are unconstitutional because they do not provide for adequate notice to garnishees that they may be liable for the judgment against the garnishee if they fail to properly answer writs of garnishments. We agree.
Appellee suggests that while section 16-110-401, the general authority under which writs of garnishment are issued, is silent on the issuance and service of a writ of garnishment, we should read our garnishment statutes in conjunction with Rule 4 of the Arkansas Rules of Civil Procedure, which deals with service of process upon the filing of a complaint. Appellee contends that Ark. R. Civ. P. 4 would cure the notice deficiency of the statute. We cannot agree.
Section 16-110-401 is the general authority under which writs of garnishment are issued. The relevant portion follows:
(a) In all cases where any plaintiff may begin an action in any court of record, or before any justice of the peace, or may have obtained a judgment before any of the courts, and the plaintiff shall have reason to believe that any other person is indebted to the defendant or has in his hands or possession goods and chattels, moneys, credits, and effects belonging to the defendant, the plaintiff may sue ¡out of a writ of garnishment, setting forth the claim, demand, or judgment, and commanding the officer charged with the execution thereof to summon the person therein named as garnishee, to appear at the return day of the writ and answer what goods, chattels, moneys, credits, and effects he may have in his hands or possession belonging to the defendant to satisfy the judgment, and answer such further interrogatories as may be exhibited against him.
Section 16-110-402 provides for the service of the writs: “[t]he writs shall be directed, served, and returned in the same manner as writs of summons.” While this statute is silent on the particular points of the issuance and service of a writ of summons, Rule 4 of the Arkansas Rules of Civil Procedure details the procedure for issuance and service of summons:
(a) Issuance: Upon the filing of the complaint, the clerk shall forthwith issue a summons and cause it to be delivered for service to a sheriff or to a person specifically appointed or authorized by law to serve it. Upon request of the plaintiff, separate or additional summons shall issue against any defendant.
(b) Form: The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiffs attorney, if any, otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.
Section 16-110-407 provides the penalty for a garnishee’s failure to answer a writ of garnishment, but does not require notice to the garnishee: '
(a) If any garnishee, after having been served with a writ of garnishment ten (10) days before the return day thereof, shall neglect or refuse to answer the interrogatories exhibited against him on or before the return day of such writ, the court or justice before whom the matter is pending shall enter judgment against the garnishee for the full amount specified in the plaintiffs judgment against the original defendant, together with costs.
Even considering our original finding in May v. Bob Hankins Distrib. Co., 301 Ark. 494, 785 S.W.2d 23 (1990), that writs of garnishment are to be served pursuant to Ark. R. Civ. P. 4, when the statute and rule are read together they still do not satisfy the constitutional mandate of requiring that adequate notice be given to the garnishee that his property may be subject to satisfaction of the debt.
It is true that when the statute and rule are read together, they require that the garnishee receive notice that a failure to respond to the summons or writ of garnishment could result in a default judgment being entered against him for “the relief demanded in the complaint.” Ark. R. Civ. P. 4(b). However, this requirement of notice is not sufficient to satisfy the due process mandate of the fourteenth amendment. The statue and rule are constitutionally deficient in that they do not specifically direct the garnishor to notify the garnishee that failure to answer the writ could result in the garnishee’s personal liability for the original amount owed to the garnishor by the debtor. If a garnishee failed to answer a writ of garnishment, he could be deprived of his property without notice. It is a garnishee’s right to predeprivation due process that must be protected.
The case of Pulaski County v. Commercial Nat’l Bank, 210 Ark. 124, 194 S.W.2d 883 (1946) is analogous to the issue now before us. There, we determined that an assessment statute, insofar as it authorized an appeal by one property owner from a decision of the Board of Equalization refusing to raise the assessment of another property owner without requiring any kind of notice to that property owner, contravenes the fourteenth amendment of the Constitution of the United States and is therefore void.
We note that other aspects of the garnishment statutes have been held unconstitutional. Davis v. Paschall, 640 F. Supp. 198, (E.D. Ark. 1986), held the statutes unconstitutional insofar as they fail to give adequate notice to the judgment debtor of his right to claim exemptions. In Kennedy v. Kelly, 295 Ark. 678, 751 S.W.2d 6 (1988), we interpreted Davis, supra, and held that a garnishee had no standing to challenge the garnishment laws based on the judgment debtor’s right to notice.
Appellee calls our attention to the fact that both writs issued in this case contained the following language:
NOTICE TO GARNISHEE: Failure to answer this writ within 20 days or failure or refusal to answer the interrogatories as may be propounded shall result in the court entering a judgment for the full amount specified in this writ of Garnishee, together with costs of the action.
We reach the inescapable conclusion that the Arkansas Garnishment Statutes in effect at the time of this action are unconstitutional insofar as they do not require that adequate notice be given to the garnishee that his property may be subject to satisfaction of the original judgment when served with a writ of garnishment. Our conclusion is not influenced by any actual notice that appellant may have received in that “notice must be provided as an essential part of the statutory provision and not awarded as a mere matter of favor or grace.” Central of Georgia Ry. v. Wright, 207 U.S. 127, 138 (1907). In Gravett v. Marks, 304 Ark. 549, 801 S.W.2d 647 (1991), we considered Kennedy, supra, and other cases involving property seizure proceedings and stated:
We did not intend, in obiter dicta or otherwise, to suggest that a property seizure proceeding based on a statute which has been declared unconstitutional may succeed. We have held in many cases that “when a statute is declared unconstitutional it must be treated as if it had never been passed.” Green v. Carder, 276 Ark. 591, 637 S.W.2d 594 (1982); Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981); Morgan v. Cook, 211 Ark. 755, 202 S.W.2d 355 (1947). Actual notice is insufficient where a notice statute is constitutionally insufficient. Wuchter v. Pizzuti, 276 U.S. 13 (1928).
We reverse and dismiss.
Newbern, J. concurs.
Glaze and Brown, JJ., dissent.
Appellant challenges the garnishment statutes, as they relate to notice to the garnishee, as they existed at the time the writs of garnishment were issued in this case. We note that the Arkansas Garnishment Statutes have been amended since that time. | [
54,
-18,
-95,
92,
-118,
-64,
34,
-98,
-5,
-87,
-11,
83,
-81,
-58,
8,
121,
-13,
73,
-15,
120,
-45,
-73,
21,
97,
74,
-5,
-47,
-43,
-76,
95,
-84,
-42,
76,
96,
-22,
-43,
101,
-62,
-55,
28,
-82,
2,
11,
-28,
113,
-63,
56,
-85,
18,
3,
49,
-98,
-29,
47,
26,
74,
108,
108,
93,
-116,
72,
50,
-102,
7,
127,
23,
19,
4,
-104,
7,
120,
-98,
-100,
49,
1,
-24,
114,
-90,
-126,
116,
73,
89,
9,
112,
98,
-126,
5,
-3,
-100,
-84,
22,
-1,
-115,
-90,
-104,
105,
11,
9,
-74,
-100,
107,
22,
69,
-10,
-22,
-107,
117,
40,
-127,
-50,
-44,
-93,
-119,
-84,
28,
3,
-17,
39,
48,
117,
-52,
-29,
93,
71,
17,
-101,
-114,
-44
] |
Per Curiam.
This appeal is brought from a decision of the Arkansas Supreme Court Committee on Professional Conduct, suspending for one year the attorney’s license of appellant, G.B. Colvin, III, a member of the Arkansas Bar. The committee determined that Colvin was guilty of violating Rules 1.3 and 1.4 of the Model Rules of Professional Conduct (Rules) upon the complaint of Tony Reginelli, Jr. Mr. Reginelli complained to the committee based on Colvin’s handling of a suit for damages arising from injuries sustained when Reginelli was struck by a crop-dusting plane. Mr. Reginelli alleged that his lawsuit was dismissed with prejudice due to Colvin’s failure to respond to requests for admissions and interrogatories within the time allowed by order of the Chicot County Circuit Court.
Colvin raises several points on appeal. He contends he was deprived of due process in violation of the Fourteenth Amendment of the United States Constitution, that the sanction was too harsh in light of established precedent and the evidence presented to the committee, that the sanction has a chilling effect upon the constitutional rights of indigent criminal defendants and that Colvin should be authorized to continue to serve as deputy prosecuting attorney.
Colvin submits he was deprived of due process by the failure of the committee to give him adequate notice regarding the proceeding against him. We find a flaw in the procedure the committee followed that leads us to conclude that the due process, to which each practitioner is entitled, was not fully accorded.
The committee notified Colvin that his actions appeared to violate certain rules, but it was not until the committee’s final decision was rendered that a violation of Rule 1.4 was raised. Since no notice of the charge of Rule 1.4 was given in advance of the committee’s proceedings, the finding of a violation of that rule cannot be sustained. Walker v. Supreme Court Committee on Professional Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982).
In Walker, supra, this court found that the committee failed to give appellant notice of a specific rule that he was subsequently charged with violating before the committee’s proceeding, so we vacated that particular finding; nevertheless, we left the other findings of the committee undisturbed. That would not be appropriate here. In this case, we have only five ballots in the record to substantiate the committee’s vote, however, by affidavit the committee maintains that the outstanding votes of two committee members were acted upon in a subsequent meeting and both were votes to suspend Colvin. The five ballots in the record consist of three votes in favor of a reprimand and two in favor of suspension. So we know the committee was divided as to what sanction to impose, at least in the first juncture of its decision-making process. Also, on appeal Colvin questions the harshness of his sanction for a violation of Rules 1.3 and 1.4, in light of other sanctions imposed by the committee. Hence, we think the situation is different from that in Walker, and we remand the cause to the committee to reconsider the facts and determine the appropriate sanction for a violation of Rule 1.3 only. We do not need to address appellant’s remaining points.
Reversed and remanded.
Dudley and Newbern, JJ., dissent.
Brown, J., not participating.
Rule 1.3 provides, “ [a] lawyer shall act with reasonable diligence in representing a client,”
Rule 1.4 provides, “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” | [
48,
-22,
-36,
62,
11,
67,
24,
46,
83,
-55,
-29,
83,
-81,
-57,
12,
123,
-13,
45,
85,
105,
-36,
-74,
51,
98,
-26,
-13,
-32,
-44,
-71,
-17,
-28,
-71,
76,
48,
-54,
-43,
70,
78,
-59,
84,
-118,
4,
27,
-20,
88,
5,
56,
32,
80,
15,
53,
-66,
-93,
46,
56,
-61,
-19,
104,
-40,
-91,
65,
-111,
-103,
-115,
111,
0,
-77,
-91,
-102,
7,
120,
62,
-120,
57,
3,
-8,
114,
-94,
30,
-44,
111,
-103,
8,
70,
98,
-96,
-115,
-25,
-56,
-87,
23,
54,
13,
-122,
-104,
25,
73,
15,
-106,
-99,
99,
20,
47,
-2,
-32,
-35,
63,
108,
-83,
-50,
-44,
-77,
-18,
37,
-36,
67,
-17,
-121,
16,
119,
-124,
-25,
95,
70,
51,
91,
-42,
-108
] |
Per Curiam.
The appellant Larry Van Pelt was convicted of capital murder and sentenced to life imprisonment without parole. His attorneys Paul Ford and Kyle Hunter filed a timely notice of appeal in August 1990 and lodged the transcript with this court. On December 21, 1990, this court granted counsels’ motion for an extension of time to file the appellant’s brief, making the brief due for filing February 7, 1991. On January 24, 1991, the appellant Van Pelt tendered a pro se motion for permission to file a handwritten brief in the case. On February 1,1991, appellant requested permission to proceed pro se on appeal. On March 4,1991, counsel filed a motion asking to be permitted to withdraw as counsel. Both counsel and the appellant note that the trial court entered an order in December, well after the notice of appeal was filed, stating that the appellant had expressed the desire that counsel be discharged from the case. The trial court concluded that counsel were obligated to continue as attorneys-of-record in an advisory capacity until such time as appellant hired a new attorney. This order does not appear in the Table of Contents to the record lodged on appeal; but even if such a order were filed, it would have no effect since it was filed after the notice of appeal. Supreme Court Rule 11 (h) provides that once a notice of appeal is filed motions to be relieved as counsel must be addressed to this court.
A defendant in a criminal trial has the right under the sixth amendment to represent himself when he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806 (1975). A criminal appellant pursing a first appeal as a matter of right may avail himself of the right to self representation provided that he makes the same voluntary and intelligent waiver of counsel that a defendant at trial is required to make. See Supreme Court Rule 8(d); see also Evitts v. Lucey, 469 U.S. 387 (1985). To enter a voluntary and intelligent waiver, the appellant must indicate in his motion to proceed pro se that at the least he is aware of the right to counsel and that he understands the advantages of being represented by counsel and the disadvantages of self-representation. It is the practice of this court to require an affidavit signed by the appellant who desires to proceed pro se which specifically sets out the waiver of right to counsel. If the appellant is incarcerated, the affidavit must bear the signature of the Attorney for Inmates attesting that the attorney has advised the appellant of the right to counsel and the advantages of counsel’s assistance and that appellant has elected to refuse the services of an attorney on appeal. See Gay v. State, 289 Ark. 236, 713 S.W.2d 232 (1986).
The pro se appellant should be aware before he elects to proceed pro se that pro se appellants receive no special consideration of their argument and are held to the same standard for brief form as a licensed attorney. See Wade v. State, 288 Ark. 94, 702 S.W.2d 28 (1986). The pro se appellant cannot later claim that he was denied effective assistance of counsel. Faretta, 422 U.S. 806.
The motion filed by the appellant here contains no statement that he is fully aware of his right to representation by counsel and the advantages of such representation. Furthermore, no affidavit has been received from him pertaining to waiver of counsel. Since it cannot be ascertained from appellant’s motion if he has made an intelligent waiver of his right to counsel, his motion will be denied until such time as he files a subsequent motion in which he states that he can abide by the rules of procedure, including the rules which govern brief form. He must further attach to the motion an affidavit refusing services of an attorney on appeal. Gay, 289 Ark. 236, 713 S.W.2d 232 (1986).
Because appellant has not made a proper waiver of his right to counsel, the motion to relieve the attorneys appointed in this case is denied. We direct counsel to submit an appellant’s brief in the manner described in our Rule 11(g), and we extend the time for filing the appellant’s initial brief with the clerk’s office to April 22, 1991. Upon filing the brief (and reply brief, if any), counsel may submit their requests for attorney’s fees and costs if any.
Motions denied.
A brief which is not in proper form is subject to being stricken pursuant to Supreme Court Rule 9. The pro se handwritten brief which has been tendered to this court by appellant lacks a jurisdictional statement, statement of the case, a statement of points and authorities, and an abstract or appendix. | [
112,
-24,
92,
31,
8,
96,
56,
-68,
-48,
-61,
101,
81,
-89,
-49,
-124,
123,
-37,
45,
85,
-7,
-51,
-73,
119,
65,
-90,
-13,
-80,
-41,
-79,
-2,
-28,
57,
73,
32,
-62,
85,
102,
8,
-63,
-44,
46,
5,
-103,
-20,
49,
77,
48,
3,
88,
15,
49,
-2,
-93,
46,
57,
8,
-88,
108,
91,
-121,
64,
-72,
-69,
-99,
127,
54,
-77,
-106,
60,
-122,
112,
47,
28,
-71,
1,
-24,
112,
-74,
-126,
116,
107,
-85,
32,
66,
66,
1,
80,
-19,
-68,
-127,
78,
90,
29,
-57,
-39,
17,
73,
100,
-106,
-33,
49,
20,
47,
124,
-52,
-59,
31,
108,
8,
-114,
-124,
-73,
-97,
120,
30,
-117,
-5,
5,
48,
101,
-60,
-24,
92,
71,
57,
-45,
-56,
-126
] |
Georgia Elrod, Special Justice.
This case involves the constitutionality of the 1987 Arkansas legislative enactment which extended the state sales tax to certain types of long distance telecommunications service while excepting others. In this class action challenge, the appellants, who are telephone subscribers upon whose telephone service the tax was imposed, argued that the tax was unconstitutional, on both First Amendment and Equal Protection Clause grounds. Appellees represented the state and local governmental agencies responsible for collecting the disputed tax as well as those providers of the long distance service involved, e.g., AT&T Communications, Inc., MCI Telecommunications Corporation, and U.S. Sprint Communications Company. The chancellor held that the law was a valid and legitimate exercise of the state’s power to tax and upheld its constitutionality. We affirm.
Prior to the enactment of Section 2 of Act 27 of 1987 [Ark. Code Ann. § 26-52-301(3) (Supp. 1989)], the Arkansas Gross Receipts Tax, or sales tax, was imposed only on intrastate long distance service. Interstate and international service were not subjected to the tax. In 1987 the law was changed, and the tax was imposed on all long distance telephone service billed to an Arkansas telephone number, excepting from the tax, however, two types of service: (1) private line service which is not accessible by the public, and (2) that service commonly known as WATS service. The relevant portions of section 26-52-301 provide as follows:
There is levied an excise tax of three percent (3 %) upon the gross proceeds or gross receipts derived from all sales to any person of the following:
(3)(A)(i) Service by telephone, telecommunications, and telegraph companies to subscribers or users, including transmission of messages or images, whether local or long distance.
(ii) Taxable services shall include basic local service and rental charges, including all installation and construction charges and all service and rental charges having any connection with transmission of any message or image.
(iii) Except as provided in subdivision (3) (iv) of this section, taxable long distance services shall include:
(a) Long distance messages which originate and terminate within this state;
(b) Interstate long distance messages which originate within this state and terminate outside this state and are billed to an Arkansas telephone number or customer location;
(c) Interstate long distance messages which originate outside of this state and terminate within this state and are billed to an Arkansas telephone number or customer location.
(iv) However, the following services shall not be subject to the tax:
(a) Any interstate private communications service which is not accessible by the public;
(b) Any interstate service which allows access to private telephone lines and which is not accessible by the public; or
(c) Any interstate-wide area telecommunications service or other similar service which entitles the subscriber to make or receive an unlimited number of communications to or from persons having telecommunications service in a specified area which is outside the state in which the station provided with this service is located.
(v) This tax shall apply to all customer access line charges billed to an Arkansas telephone number. Access line charges are those charges associated with or for access to the long distance network. However, access or other telecommunication services provided to telephone, telegraph, or telecommunications companies which will be used to provide telecommunications services shall not be subject to this tax.
Appellants do not challenge the exception for private line service, contending only that the tax was improperly imposed on, and thus discriminated against, Arkansas subscribers to long distance telephone service not of the WATS variety.
Although the record below contains much evidence on the complex aspects of telecommunications technology and rate structure, the chancellor found that the differences between the two types of service, one taxed and the other not, could be described as follows:
(1) “Regular” long distance service (sometimes called MTS service) is billed on a per call basis with the charge for each call generally depending on the day of the week and the time of the day at which the call is made, the geographic distance of the call, and the temporal length of the call. This is the most common type of long distance service and is usually subscribed to by those who may, in addition, use WATS service. This service is subjected to the sales tax.
(2) Wide-area telecommunications service, commonly known as WATS, is where the subscriber is charged a flat fee for the service, receiving then a lower rate for each call made or received. This category is broken down between incoming WATS, or “800 service,” and outgoing WATS. This service is not subjected to the tax.
The chancellor also found that “[t]he main difference between WATS and MTS is in rate design,” and that both services are available to any customer, with no eligibility requirements. Appellants, plaintiffs below, all subscribe to “regular” long distance service and none to WATS service. All parties generally agreed that a customer must have a high volume of telephone usage in order to justify economically the use of WATS.
Appellants’ constitutional challenge to Section 2 of Act 27 of 1987 is based upon the state’s purported violation of the equal protection provisions of both the Arkansas and U. S. Constitutions. Their argument, made in the trial court, that the statute violated the Commerce Clause of the U. S. Constitution, was definitively decided against them during the course of this litigation by the U. S. Supreme Court in Goldberg v. Sweet, 488 U.S. 252, 109 S. Ct. 582 (1989) and was not argued on appeal. Appellants’ argument that their due process rights under the U. S. and Arkansas Constitutions were violated because the statute was unclear, or void for vagueness, was not properly presented at the trial court level, nor addressed by the chancellor in her findings of fact and conclusions of law. Likewise, the chancellor did not address appellants’ point, argued on appeal, that the statute was ambiguous. Thus, neither of these latter issues will be addressed by this court. Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990).
We are called upon to answer three questions in resolving the constitutional issues presented by this case: (1) Does the imposition of the tax discriminate against or among individuals? (2) If so, what standard is to be applied in testing the legitimacy of the law, a “rational basis” standard or one which requires the showing of a compelling state interest? (3) And, finally, does the statute meet the requisite standard? These questions will be addressed in turn.
I
In deciding whether an equal protection challenge is warranted, there must first be a determination that there is a state action which differentiates among individuals. “No state shall... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. 14. Appellees argue that the threshold element of classification of individuals is not met because the only distinction made by the statute is between services, not people. Appellees cite Potts v. McCastlain, 240 Ark. 654, 401 S.W.2d 220 (1966), cert. denied, 358 U.S. 946 (1967), where this court upheld a privilege tax imposed on taxicabs but not on other vehicles using the same streets. They argue that as long as all “regular” long distance subscribers are taxed the same, just as all taxicab operators were taxed the same, there is no differentiation among individuals, all being treated equal. In addition, appellees cite the chancellor’s finding that “all three types of service — MTS, private line, and WATS — are available to any customer; there are no eligibility requirements,” to bolster their argument that this is a tax imposed on services, not individuals.
Although it is true that the tax is imposed on one type of long distance service and not another, it is also true that taxes are paid by individuals, and the record reflects that subscribers to “regular” long distance service pay the tax, while subscribers to WATS service do not. This disparate treatment under the statute of classes of individuals is sufficient to raise the equal protection challenge and require our further analysis.
II
Once equal protection is invoked, we must then decide what standard of analysis applies. In other words, we must determine whether it is necessary only to show some rational basis for the classification, or whether the statute impinges on a fundamental right or is based on a suspect criterion, in which case the state is required to prove not only that the statute is reasonable but also that it promotes a compelling state interest. Appellants argue for the application of the stricter standard because their constitutional rights of free speech are imperiled; appellees contend reasonableness alone is required.
The U.S. Supreme Court recognized the broad discretion legislatures have in formulating tax policy in Madden v. Kentucky, 309 U.S. 83, 87-88 (1940):
The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized. ... [T]he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. Traditionally classification has been a device for fitting tax programs to local needs and usages in order to achieve an equitable distribution of the tax burden. It has, because of this, been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes.
In Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983), this court considered an equal protection challenge to a state income tax law which provided an exemption on retirement income from certain government sources but denied the exemption to private retirement income. In upholding the exemptions as valid exercises of the state’s taxation powers, we stated:
The rational basis test has long been applied by the Supreme Court in reviewing state legislation under the equal protection clause of the 14th Amendment which imposed special burdens or granted exemptions from such burdens through classification schemes. . . .
Under the rationality standard of review, we must presume the legislation is constitutional, i.e. that it is rationally related to achieving a legitimate governmental objective.
Id. at 212-13, 655 S.W.2d at 463.
While acknowledging the applicability of the rational basis analysis to a state’s taxation powers, appellants argue that in this case the court should apply a higher standard because their First Amendment protections under the U.S. Constitution have been abridged. Appellants assert that they have a “fundamental right” to exercise “free speech” by transmissions over the telephone, and because these rights are implicated in the tax-based classification between long distance subscribers, the state must show that it has a compelling state interest to justify the infringement. In support, appellants cite Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenues, 460 U.S. 575 (1983); Arkansas Writers’ Project, Inc. v. Ragland, 287 Ark. 155, 697 S.W.2d 94 (1985), reh’g denied, 287 Ark. 155, 698 S.W.2d 802 (1985), rev’d, 481 U.S. 221 (1987); and Medlock v. Pledger, 301 Ark. 483, 785 S.W.2d 202 (1990), rev’d sub nom. Medlock v. Leathers, — U.S. __, 111 S. Ct. 1438 (1991).
Minneapolis Star, supra, involved a special use tax on the cost of paper and ink consumed in the production of publications, exempting the first $100,000 used, with the result that only a few of the largest publishers were taxed. The Court invalidated the tax, citing First Amendment infringement with no compelling state interest to redeem it. Arkansas Writers’ Project, supra, invalidated an Arkansas law which taxed general interest magazines but exempted from the sales tax, sales of religious, professional, trade and sports magazines.
Both Minneapolis Star and Arkansas Writers’ Project are distinguishable from the present case, as both of those cases involved a form of censorship by the state. In Minneapolis Star there was censorship of the speaker, i.e., the largest newspapers, and in Arkansas Writers’ Project there was censorship of the content, i.e., that contained in general interest magazines. In the present case there is no attempt to censor based on content or to discriminate among classes of speakers. Act 27 imposes a tax on every use of the types of long distance services that are subject to the tax, regardless of the purpose for which the customer uses the service, what the customer says while using the service, or the identity of the service provider.
The case most closely on point, and to this court determinative of the First Amendment question, is Medlock, supra, where the constitutional validity of a sales tax on cable television service was challenged. The tax was levied on cable television service, but not on similar services, such as satellite television programming. Although this court determined the tax unconstitutional because of First Amendment infringement, the U.S. Supreme Court saw otherwise and held that the law in question did not threaten to suppress the expression of particular ideas or viewpoints, nor did it target a small group of speakers or discriminate on the basis of the content of taxpayers’ speech. None of these three elements being present, the tax was not constitutionally vulnerable on First Amendment grounds.
The Arkansas Legislature has chosen simply to exclude or exempt certain media from a generally applicable tax. Nothing about that choice has ever suggested an interest in censoring the expressive activities of cable television. Nor does anything in this record indicate that Arkansas’ broad-based, content-neutral sales tax is likely to stifle the free exchange of ideas. We conclude that the State’s extension of its generally applicable sales tax to cable television services alone, or to cable and satellite services, while exempting the print media, does not violate the First Amendment.
Medlock v. Leathers, _ U.S. at _, 111 S. Ct. at 1447.
We therefore hold that Act 27 of 1987 does not violate appellants’ First Amendment rights, and the stricter standard of review is inapplicable. The appropriate analysis, therefore, is whether there exists for the classification any rational basis which provides a “deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government and void of any hint of deliberate and lawful purpose.” Streight v. Ragland, 280 Ark. 206, 215, 655 S.W.2d 459, 464 (1983).
Ill
The burden is upon appellants to demonstrate the lack of rational basis for the tax: Streight, supra. The legislature has the discretion, within reasonable limits, to determine the scope of the exercise of its taxing power, and there is a presumption in favor of the validity of its action. Potts v. McCastlain, 240 Ark. 654, 401 S.W.2d 220 (1966), cert. denied, 358 U.S. 946 (1967).
A state has wide latitude in the exercise of its power of taxation. The power to tax necessarily implies the power to discriminate in taxation. The law does not dictate that taxing measures be applied to all members of a class or none. Distinctions are permissible, and if there is any conceivable set of facts to uphold the law’s rational basis, it will be upheld. Carmichael v. Southern Coal Co., 301 U.S. 495 (1937); Dicks v. Naff, 255 Ark. 357, 500 S.W.2d 350 (1973).
In determining whether a rational basis for the legislation exists, we are not required to discover the actual basis for its enactment, but rather we are allowed to hypothesize the facts giving rise to the classification.
Testimony in the trial court indicated that WATS or WATS-like service tended to be used by large volume consumers of telephone service. It is not economically feasible to purchase WATS service unless the consumer has a large volume of long distance telephone usage; thus the WATS customer is more likely to be a business subscriber than to be an individual residential subscriber.
The State of Arkansas has a long history of providing tax incentives to commerce as a means to encourage businesses to stay and locate in this state, and, certainly, economic development is a legitimate and worthy governmental goal. For example, the “enterprise zone” legislation gives a tax advantage to industries that locate in economically depressed areas, Ark. Code Ann. § 15-4-807 (Supp. 1989), and the motion picture industry is accorded tax incentives in order to encourage film making in this state. Ark. Code Ann. § 26-4-206 (1987), and § 26-52-402(c)(3) (1987).
The legislature may have intended, in the enactment of Section 2 of Act 27 of 1987, to encourage large volume users of telephone service, i.e., WATS subscribers, to remain or relocate in Arkansas. We agree with the chancellor’s finding that this basis for the legislation would be rationally related to achieving a legitimate governmental objective.
It is not the job of this court to evaluate the wisdom of our legislature in enacting tax measures, which inevitably will fall more heavily on some than on others. Our task is to protect against classifications which are arbitrary and without reason. As the United States Supreme Court stated in City of New Orleans v. Dukes, 427 U.S. 297, 303-304 (1976):
States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude____[T] he judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines, ... in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.
Once we have reached the conclusion, as we have in this case, that a legitimate governmental purpose could be served by the legislation, and even though we do not know with certainty the actual underlying reasons for the law’s enactment, we must bring our analysis to a close. We therefore confirm the constitutionality of the law and affirm the chancellor’s decision.
Affirmed.
Special Justices John R. Byrd, James H. Pilkinton, Jr., and David M. Glover join in this opinion.
Dudley, Hays, Newbern, and Glaze, JJ., not participating.
Ark. Const. art. 2, §§ 3 and 18.
U.S. Const. amend. 14. | [
20,
-6,
-12,
60,
8,
98,
18,
-110,
83,
-79,
-92,
83,
-19,
66,
-108,
115,
-77,
63,
113,
96,
-41,
-89,
15,
98,
88,
-77,
-79,
-41,
-77,
79,
-84,
-42,
76,
33,
-54,
85,
70,
90,
-19,
28,
-66,
2,
-117,
76,
121,
6,
20,
109,
82,
75,
113,
-115,
-3,
44,
28,
-61,
104,
60,
73,
50,
65,
-69,
-86,
-97,
127,
22,
35,
36,
26,
-127,
-24,
28,
-112,
49,
8,
-88,
115,
-90,
-62,
-12,
41,
-7,
12,
32,
102,
33,
37,
-81,
-4,
40,
38,
-37,
-99,
-89,
-112,
120,
3,
15,
-114,
29,
122,
-112,
-51,
-14,
-65,
-59,
19,
124,
-115,
-114,
-106,
-125,
37,
98,
-108,
19,
-17,
39,
16,
117,
-49,
-62,
92,
87,
58,
-117,
6,
-43
] |
Donald L. Corbin, Justice.
Appellants, W.T. Garrett and his wife, Carolyn Garrett, appeal a decision by the trial court which they claim erroneously construed a group policy insurance provision so as to deprive them of their complete benefits. We affirm.
Appellants first contend the trial court erred in applying the provisions of Ark. Code Ann. § 23-86-111 (1987) as amended by Act 702 of 1981. The record belies appellants’ position in this regard. The record clearly indicates that trial counsel for appellants argued for the application of Act 806 of 1979 and that the trial court applied the 1979 Act in reaching its decision. This court in Provident Life & Accident Ins. Co. v. Toran, 288 Ark. 63, 702 S.W.2d 10 (1986) construed Act 806 of 1979 as not prohibiting an insurance company from enforcing a provision in its group disability insurance policy which reduced the benefits payable to an insured by the amount of the Social Security payments the insured received. Act 806 of 1979 defined the term “other like insurance” as:
“The term ‘other like insurance’ may include group or blanket disability insurance or group coverage provided by Hospital and Medical Service Corporations, government insurance plans, union welfare plans, employer or employee benefit organizations, or Workmen’s Compensation Insurance or no-fault automobile coverage provided for or required by any statute.”
In Provident we noted that, although the 1975 Act was at issue in Milldrum v. Travelers Indemnity Co., 285 Ark. 376, 688 S.W.2d 271 (1985), we inadvertently quoted language contained in Act 806 of 1979, an amended version of the same Act. In Provident we went on to say that the only change from the 1975 Act interpreted in Milldrum was the addition of “governmental insurance plans” in the list of prohibitions covered by the statute. We affirmed our holding in Milldrum that “enumeration of various private insurance plans as constituting ‘other like insurance’ by implication excludes from the prohibition governmental social programs such as Social Security benefits.” We found that the addition of “government insurance plans” in Section 1 of the Act did not affect the statute as to Social Security benefits and allowed, as in Milldrum, the insurance company to reduce the payment of benefits to the insured by the amount of Social Security benefits.
We see no reason to reverse ourselves, particularly so in the face of the obverted argument by appellants’ counsel that the Milldrum case held that clearly Social Security payments for disability were not like other insurances and therefore could not be used to reduce group policy disability benefits. We note that just the opposite result was reached and controls the disposition of the issue before us.
Appellants next argue, in the event we find no merit in their first contention, that the trial court erred in computing the amount owed to them under the policy. Appellants claim they are entitled to $2,400.00 ($400.00 per month x 6 months) for the first six months and $2,200.00 ($50.00 per month x 44 months) for the next forty-four months, a total of $4,600.00 being due. However, appellants’ trial counsel agreed to a document introduced as Joint Exhibit No. 2 at trial. Joint Exhibit No. 2 provides that $2,085.00 (total amount due under the policy obligation of $3,431.67 less $1,346.67 in benefits previously paid) is the amount due should the trial court find that after the first six months of disability, the policy allows a reduction in benefits to the minimum benefit of $50.00 per month. The trial court in its “Conclusions of Law” relied on Milldrum, supra, and Provident, supra, for the rule that “benefits received by an insured under a group policy of disability insurance can be reduced by the amount of Social Security payments the insured is entitled to receive because of his disability.” The trial court found appellant to be entitled to $2,085.00. Appellants, by agreeing to and offering Joint Exhibit No. 2, waived any right to question the computation of benefits. See Mine Creek Contractors v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989); Geary v. Kirksey, 234 Ark. 325, 351 S.W.2d 846 (1961).
Finally, appellants contend if the court agrees with their first point for reversal, the case must be remanded with directions to the trial court to determine the amount of attorney’s fees to be awarded, unless this court determines the amount of such attorney’s fees.
We do not agree with appellants’ first point for reversal. Furthermore, we find no merit in appellants’ assertion that this court’s holding in Miller’s Mutual Ins. Co. v. Keith Smith Co., 284 Ark. 124, 680 S.W.2d 102 (1984) requires that penalty, interest, and attorney’s fees be granted in accordance with Ark. Code Ann. § 23-79-208 (1987), even if appellee confessed judgment.
This court, in Miller, held that where an insurance company had a reasonable opportunity to pay the correct amount owed but refused to do so, even though it later confessed judgment, the statutory penalty and attorney’s fees would be allowed. The instant case is distinguishable from Miller in that appellee confessed judgment before appellants ever reduced their claim to the correct amount. It was only after appellee confessed judgment to a $50.00 per month benefit that appellants amended their complaint to seek that amount. In this amended complaint, besides the reduced amount, appellants still claimed, alternatively, an amount in excess of the correct amount.
This court held in Cato v. Arkansas Mun. League Mun. Health Benefit Fund, 285 Ark. 419, 688 S.W.2d 720 (1985), a case similar in this regard to the case at bar, that where an insurance company confessed judgment in the correct amount before the claimant filed an amended complaint asking for the correct amount, the statutory penalty and attorney’s fees did not attach.
Based on the foregoing, we cannot say the trial court erred in denying appellants’ claim for penalty, interest, and attorney’s fees.
Affirmed. | [
-80,
-7,
-43,
-67,
8,
98,
50,
-102,
83,
-85,
39,
83,
-5,
-16,
21,
115,
-5,
33,
65,
114,
-73,
-93,
23,
2,
-6,
-5,
-13,
-59,
-79,
79,
110,
46,
76,
112,
74,
-43,
102,
-58,
-57,
20,
14,
-114,
-70,
-19,
121,
-60,
48,
111,
84,
91,
113,
-105,
-93,
40,
28,
-49,
41,
12,
10,
36,
88,
-6,
-117,
13,
107,
17,
49,
4,
-104,
71,
-44,
26,
-100,
17,
40,
-72,
50,
-90,
-42,
54,
119,
25,
-124,
98,
102,
16,
32,
-11,
-116,
-120,
38,
-58,
-113,
-91,
-106,
25,
57,
15,
-77,
31,
118,
20,
-114,
122,
-8,
85,
30,
-84,
5,
-114,
-42,
-95,
-19,
-16,
-100,
-125,
-17,
67,
50,
113,
-53,
-94,
93,
-41,
121,
-105,
14,
-46
] |
Donald L. Corbin, Justice.
Appellant, Cathrine Faye Brantley, appeals the decision of the Probate Court of Pulaski County, Arkansas, which denied a motion to vacate a previous order dismissing a will contest with prejudice. We affirm.
The decedent, Katherine Noble Smith, died on June 23, 1989, a resident of Pulaski County, Arkansas. Appellant opened administration on the decedent’s estate and pursuant to her request as the sole heir at law, an order was entered approving her as the personal representative of the estate on July 24, 1989. On August 1, 1989, appellee, Ella C. Davis, proffered a document dated July 19,1988, as the last will and testament of the decedent and requested that she be named as executrix of the estate.
On August 7,1989, appellant filed a contest of will alleging that the proffered will was not valid. On August 30, 1989, the court admitted the will to probate, approved the appointment of appellee as executrix, and required the executrix to post a $50,000.00 surety bond. On November 30, 1989, appellant’s prior counsel filed a motion requesting that the contest of will be dismissed with prejudice pursuant to Ark. R. Civ. P. 41. On December 1, 1989, the probate court entered an order granting appellant’s motion and dismissing the contest of will with prejudice.
Appellant, with the services of new counsel, on February 27, 1990, filed a motion to set aside the December 1,1989 order under the authority of Ark. R. Civ. P. 60(b). On May 11, 1990, appellant filed a motion to vacate the December 1,1989 order for good cause pursuant to Ark. Code Ann. § 28-1-115(a) (1987). A hearing was held on June 28, 1990, and appellant proffered evidence in support of her motion that good cause existed for vacating the order of dismissal. Appellant proffered the testimonies of a handwriting expert and one of the witnesses to the will as well as other exhibits and documents relating that appellee exerted undue influence over the decedent and that the decedent lacked testamentary capacity. On July 12, 1990, the probate judge entered an order denying appellant’s motion to vacate the dismissal of her will contest. It is from this July 12, 1990 order that appellant appeals to this court.
Appellant raises three claims on appeal: 1) the trial court erred in holding that the order dismissing the will contest could not be vacated for good cause under section 28-1-115(a); 2) the trial court erred in refusing to consider proffered evidence as “good cause” within the meaning of section 28-1-115(a) and vacating the order dismissing appellant’s will contest; and 3) this court should review the proffered evidence de novo and invalidate the will due to lack of testamentary capacity and undue influence exercised upon the decedent by appellee, who is the majority beneficiary of the proffered will.
We consider appellant’s first two claims together. Appellant contends the probate court erred in refusing to vacate for good cause the order dismissing with prejudice the will contest pursuant to section 28-1-115(a), which provides:
(a) For good cause and at any time within the period allowed for appeal after the final termination of the administration of the estate of a decedent or ward, the court may vacate or modify an order or grant a rehearing. However, no such power shall exist as to any order from which an appeal has been taken or to set aside the probate of a will after the time allowed for contest thereof.
Appellant maintains that a study of this statute requires that she prevail in her endeavor to vacate the order dismissing with prejudice the contest of the will. She urges this is particularly true when one reads the case of Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975), involving a challenge to the allotment of dower. There, appellee alleged that appellants were barred from contesting the confirmation of an allotment of dower by the passage of 90 days after the order approving the commissioner’s report. The Price court ruled “the fact that appellants did not appeal from the order approving the commissioner’s report prior to the probate court’s final order, even though they might have done so, does not constitute a bar to the present appeal.” Id. at 376, 527 S.W.2d at 330. To support this ruling, Price relied on Ark. Stat. Ann. § 62-2015 (Repl. 1971), now codified as Ark. Code Ann. § 28-1-115(a), which states in part:
For good cause, at any time within the period allowed for appeal after the final termination of the administration of the estate of a decedent or ward, the court may vacate or modify any order, or grant a rehearing thereon; except that no such power shall exist as to any order from which an appeal has been taken, or to set aside the probate of a will after the time allowed for contest thereof.
She further maintains that Carpenter v. Horace Mann Life Ins. Co., 21 Ark. App. 112, 730 S.W.2d 502 (1987), a Court of Appeals case, is factually similar to the case at bar. There, the parties in contention signed an “Agreed Order Probating Will and Appointing Personal Representative.” The appellant argued this order admitted the will to probate on an implied finding by the court that the testator was competent and acting without undue influence, fraud or restraint. The appellant contended that since no appeal was taken from these findings, the issues were res judicata. The trial court denied appellant’s motion for summary judgment and held that:
[T]he express language of the above order admitted the will “conditionally,” that issues involved in the will contest were reserved, and that the conduct of the parties in continuing to participate in the probate case by filing pleadings and briefs belied the assertion that the order admitting the will to probate disposed of the probate case once and for all.
Id. at 119, 730 S.W.2d at 505.
The Court of Appeals relied on the language of section 62-2015 to affirm the trial court stating, “even if the court had felt the order was res judicata on the validity of the will, it could have vacated its . . . order because the probate case was still open.” Carpenter, supra, 21 Ark. App. at 119, 730 S.W.2d at 506. We note that perhaps the key consideration of this decision as it relates to the case at bar may be the observation that “[i]t seems clear that the order recognized that the will was being contested and it was admitted to probate conditionally, while expressly reserving for a future trial on the merits the issue of who would ultimately receive the benefits of the estate.” Id. at 119, 730 S.W.2d at 506.
The statute in question and the cases of Price, supra, and Carpenter, supra, are authority for the probate court in the instant case to consider appellant’s motion to vacate the order dismissing the will contest; however, a roadblock to appellant’s efforts to vacate the order of dismissal with prejudice and renew her contest of the will is the case of Screeton v. Crumpler, 273 Ark. 167, 617 S.W.2d 847 (1981). In Screeton, we found the probate judge did not abuse his discretion in dismissing appellant’s contest of a will for want of good faith prosecution. The Screeton decision was predicated on a finding that appellant had been granted two trial date continuances, as well as two continuances for the taking of discovery depositions, and did not even appear at a hearing on a motion to dismiss. This ruling was justified by our recognition that a proceeding to probate a will is a special proceeding, not an “action” as that term is ordinarily used, and does not constitute a civil action within Ark. R. Civ. P. 2 and 3. The opinion went on to observe that a “will contestant cannot take a nonsuit under Rule 41 [of the Arkansas Rules of Civil Procedure], because such a contest is not an independent proceeding in itself.” Screeton, 273 Ark. at 169-70, 617 S.W.2d at 849. The court opined that “[i]t would seriously disrupt the administration and distribution of estates if a will contest could be dismissed, voluntarily or without prejudice, and refiled at some indefinite later date.” Id. at 170, 617 S.W.2d at 849. Thus, in Screeton, the dismissal in the probate court was necessarily with prejudice. Noticeably absent from the Screeton decision is any reference to the statute, or its predecessor, section 62-2015, relied on by appellant in the case at bar.
The probate judge in the instant case, although apparently feeling that appellant’s proffered evidence might go to the rejection of the will, felt constrained because of Screeton, supra, to deny appellant’s motion to vacate its earlier order of dismissal with prejudice. The probate judge concluded that any newly discovered evidence must go to the issues involved in the motion to vacate and not to the issues involved in the will contest itself. Thus, based on Screeton, supra, the probate court felt that a dismissal of a will contest was necessarily with prejudice and thus, the court determined it was without authority to vacate its prior order, with or without good cause, once the will contest had been dismissed with prejudice. Here, the appellant is charged with the responsibility of knowing the consequences of her action in voluntarily seeking a Rule 41 dismissal with prejudice. She had other options that she could have pursued before taking such a final and conclusive step.
The principle of orderly maintenance of an estate, which was enunciated in Screeton, supra, applies to this case. The probate court’s dismissal of appellant’s will contest was necessarily with prejudice. Any reconsideration of the dismissal must therefore relate to the dismissal itself and not to the merits of the will contest. While appellant points out “newly discovered” evidence that a claim of undue influence and lack of testamentary capacity may exist in this case, appellant offers no explanation why this evidence was not discovered prior to the dismissal. See Ark. R. Civ. P. 60(c)(1). The record is thus void of any evidence for our review of whether good cause exists to vacate the dismissal pursuant to section 28-1-115(a). Accordingly, we affirm the probate court’s ruling denying appellant’s motion to vacate the dismissal with prejudice of the will contest.
Appellant’s third claim on appeal, that we should review the claims of undue influence and lack of testamentary capacity de novo, is rendered moot by our determination of the first issue.
Affirmed.
Holt, C.J., and Newbern, J., concur.
Brown, J., not participating. | [
-11,
-20,
-36,
92,
40,
-32,
56,
-70,
-14,
-61,
101,
83,
-19,
-32,
16,
45,
99,
15,
113,
121,
-61,
-93,
87,
32,
115,
-13,
-109,
93,
-85,
-51,
-12,
-42,
77,
96,
98,
-43,
70,
-118,
-27,
80,
-114,
0,
57,
101,
81,
-48,
52,
-29,
86,
15,
85,
-82,
-13,
-81,
29,
-53,
-84,
46,
-37,
-88,
72,
57,
-102,
7,
93,
23,
49,
-124,
-100,
-21,
74,
42,
24,
53,
0,
-8,
115,
38,
-122,
116,
106,
9,
40,
96,
102,
1,
77,
-1,
-104,
-118,
38,
118,
-103,
-90,
-6,
105,
73,
65,
-74,
-97,
121,
-112,
3,
-8,
-26,
-35,
12,
104,
-120,
-50,
86,
-95,
10,
-88,
-116,
7,
-31,
-53,
52,
113,
-55,
-54,
94,
67,
49,
-101,
-58,
-16
] |
Melvin Mayfield, Judge.
On January 27, 1987, appellant Robert Shelton entered a plea of nolo contendere to two charges of delivery of a controlled substance, marijuana, and was placed on probation for five years and fined $1,000.00 plus costs. He was also ordered to reimburse the Arkansas State Police for $40.00 “buy money,” and to serve ninety (90) days in jail.
By an order entered on January 27, 1992, it was found that appellant had paid all fines and costs assessed against him and had otherwise fully complied with the terms and conditions of his probation. He was, therefore, discharged from probation. On April 7, 1992, appellant filed a motion alleging that since he entered his plea he had fully complied with all the conditions of his probation and had been discharged, and he sought to have his record of conviction of the felony expunged. A hearing was held on August 21, 1992, in which appellant testified that this was the first time he had been charged with violating the law; that after his plea he strictly complied with all the terms of his probation; that he had married and had two children; that he had worked regularly for his father earning approximately $30,000.00 a year; that he had no further contact with the law since the plea; that he had quit running around, playing with a band, smoking marijuana, etc.; and that he had become a stable family man who works, enjoys the home life, and attends church regularly.
In a letter opinion delivered September 4, 1992, the trial judge held that he was without authority to expunge the appellant’s record. The judge noted that appellant was not sentenced under Act 346 of 1975, Ark. Code Ann. § 16-93-301 through 303. Ark. Code Ann. § 16-93-303(a)(l) (198?) provides:
Whenever an accused enters a plea of guilty or nolo contendere prior to an adjudication of guilt, the judge of the circuit or municipal court, criminal or traffic division, in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, may defer further proceedings and place the defendant on probation for a period of not less than one (1) year, under such terms and conditions as may be set by the court. [Emphasis added.]
And Ark. Code Ann. § 16-93-303(b)(l) through (b)(4) provides for expunging the defendant’s record upon fulfillment of the terms and conditions of the probation. The trial judge held that because appellant had entered his plea of nolo contendere to felony delivery of marijuana without reference to the above Act or statute and because appellant was sentenced to pay a fine of $1,000, the provisions of Ark. Code Ann. § 16-93-303(a)(l) were not followed and appellant’s record could not be expunged. Furthermore, according to Ark. Code Ann. § 5-4-301 (d), the imposition of a fine constituted a conviction and this also prevented him from expunging appellant’s record.
On appeal appellant concedes that he was not sentenced pursuant to the provisions of Ark. Code Ann. § 16-93-303(a)(l) or Ark. Code Ann. § 16-93-502(6)(B) (1987), and that the imposition of the fine constituted a conviction. Appellant argues, however, that he should be afforded some remedy for his exemplary behavior besides having to apply to the Governor for a pardon. He claims that by refusing to expunge his record, the trial court abandoned the inherent powers of the court to act when statutory provisions are incomplete.
Arkansas Code Annotated section 5-64-407 (1987), the Uniform Controlled Substances Act, also provides for expunging the record. Without entering a judgment of guilt and with the consent of the accused the court may defer further proceedings and place the defendant on probation. After successful completion of probation, discharge and dismissal under this section, the defendant shall be without adjudication of guilt and the charge is not considered a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for a second or subsequent convictions under Ark. Code Ann. § 5-64-410. However, this disposition is not available for the offense of delivery of marijuana; it applies only to possession of a controlled substance. See Whitener v. State, 311 Ark. 377, 380, 843 S.W.2d 853, 854 (1992).
Appellant cites Ark. Code Ann. § 16-13-204(b) (1987) which gives the circuit courts the “power to issue all writs, orders, and process which may be necessary in the exercise of their jurisdiction, according to the principles and usages of law”; Ark. Code Ann. § 16-13-201 which states, “Where those actions and proceedings are not expressly provided for by statute, the actions and proceedings may be had and conducted by the circuit courts and judges, in accordance with the course, rules, and jurisdic tion of the common law”; and Ark. Code Ann. § 16-65-119(a) which provides, “A judgment rendered, or final order made, in the circuit or chancery court may be reversed, vacated, or modified, either by the Supreme Court or by the court in which the judgment was rendered, or order made.” He argues that under these statutes the trial court should be able to issue a new order, sealing and expunging the court activity which occurred in 1987, Appellant asserts that the circuit court should balance appellant’s one brush with the criminal justice system with his exemplary behavior since that time and exercise its inherent power, in the absence of a statute, to expunge his record of the conviction.
The Arkansas Supreme Court has repeatedly held that the extent of sentencing in criminal cases is controlled by the legislature and that Arkansas circuit courts have no inherent authority to fashion sentences. See State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993), in which the trial court ignored the mandate in Ark. Code Ann. § 5-4-104(a) and (e)(4) (1987) not to suspend imposition of sentence for habitual offenders and suspended a portion of appellant’s sentence. On appeal by the State pursuant to Ark. R. Crim. P. 36.10(b-c) our supreme court stated:
In Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985), the court, quoting from Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985), said, “It is well settled that it is for the legislative branch of a state or federal government to determine the kind of conduct that constitutes a crime and the nature and the extent of punishment which may be imposed.” This court has repeatedly held that sentencing in Arkansas is entirely a matter of statute. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992); Sherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). This court has also held that the minimum sentences for habitual offenders are mandatory. McKillion v. State, 306 Ark. 511, 815 S.W.2d 936 (1991). Further, this court has held that the power to grant or withhold the authority of trial judges to suspend execution of sentence conditioned on the defendant’s good behavior properly lies with the General Assembly. Tausch v. State, 285 Ark. 226, 685 S.W.2d 802 (1985); Hill v. State, 276 Ark. 300, 634 S.W.2d 120 (1982); Davis v. State, 169 Ark. 932, 277 S.W.2d 5 (1925); Holden v. State, 156 Ark. 521, 247 S.W.2d 768 (1923).
312 Ark. at 37, 846 S.W.2d at 661.
Appellee argues that since appellant may seek to have his record expunged by applying for a pardon from the Governor of Arkansas, pursuant to Ark. Const, art. 6, section 18, it would violate the doctrine of separation of powers for the judiciary to also be able to expunge records. The Arkansas Supreme Court has been very careful to consider the separation of powers when reviewing the authority of trial courts to reduce a defendant’s sentence. Because of the power to pardon held by the Governor, courts have no authority to reduce a defendant’s sentence on the basis that it is unduly harsh. Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990); Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983); Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979); Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974). Appellee submits that, “[I]f the doctrine of separation of powers prevents circuit courts from reducing sentences of imprisonment, a fortiori, this same doctrine will prevent circuit courts from expunging the convictions that were the legal bases for the sentences of imprisonment.”
We find the decision of the trial court was correct. A trial court does not have the power to expunge appellant’s record when appellant was not sentenced under one of the statutes which specifically provides for expunging the record.
Affirmed.
Cooper and Pittman, JJ., agree. | [
48,
-23,
-103,
28,
9,
-63,
58,
-112,
90,
-29,
96,
-38,
-17,
87,
4,
41,
34,
89,
85,
121,
-47,
-90,
97,
113,
102,
-13,
9,
86,
-74,
79,
-20,
-36,
90,
48,
-78,
85,
38,
72,
-25,
88,
-50,
1,
-117,
100,
112,
2,
48,
59,
19,
-97,
53,
30,
-77,
43,
17,
78,
77,
76,
27,
47,
8,
-93,
-104,
5,
-81,
4,
-77,
-91,
-103,
3,
-10,
123,
-100,
49,
1,
-8,
115,
18,
-126,
116,
75,
73,
4,
96,
102,
33,
21,
-51,
-84,
32,
22,
-65,
-99,
-26,
-40,
121,
75,
77,
-74,
-99,
126,
18,
12,
-4,
105,
-60,
81,
108,
3,
-54,
-108,
-111,
13,
20,
-58,
74,
-21,
35,
16,
69,
-52,
-26,
84,
70,
114,
-101,
-109,
-9
] |
John Mauzy Pittman, Judge.
The appellant, Ricky Wof-ford, was convicted by a jury of rape and kidnapping. He was sentenced to ten years imprisonment on the rape charge and five years on the kidnapping charge, the sentences to be served concurrently. His sole argument on appeal is that the evidence was insufficient to support the conviction for kidnapping and that the trial court, therefore, erred in denying his motions for a directed verdict of acquittal on that charge. We find no error and affirm.
A motion for directed verdict constitutes a challenge to the sufficiency of the evidence. Thomas v. State, 311 Ark. 609, 846 S.W.2d 168 (1993). In reviewing the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State and will affirm the judgment if there is any substantial evidence to support the jury’s verdict. Harris v. State, 299 Ark. 433, 774 S.W.2d 121 (1989). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other, inducing the mind to pass beyond mere suspicion or conjecture. Thomas v. State, supra. In determining whether there is substantial evidence to support the jury’s verdict, it is permissible to consider only the testimony that tends to support the finding of guilt. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990).
As is pertinent in this case, a person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with her liberty with the purpose of engaging in sexual intercourse with her. Ark. Code Ann. § 5-11- 102(a)(4) (1987). An offense such as rape necessarily contemplates restrictions on the victim’s liberty while the crime is being committed. Therefore, it has been held that only when the restraint imposed exceeds that normally incidental to the underlying crime should the rapist also be subject to prosecution for kidnapping. See Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991); Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988); see also Commentary to Ark. Code Ann. § 5-11-102.
Here, the record shows that on February 3, 1992, the fourteen-year-old victim and a friend were walking through an alley on their way to visit other friends. After walking a short distance past four young men, one of the men, Lewis Parham, called to the victim and asked her to come back to him. When she walked back to Parham’s location, he pulled a gun and told her that she had to go with him. Parham then forced the victim at gunpoint to walk to a nearby apartment complex and enter a vacant apartment. The other three men, one of whom was appellant, followed along behind Parham. Each of the men then had sexual intercourse with the victim against her will, with appellant being the last of the four. At trial, the victim testified that she could not remember whether appellant ever held the gun on her. However, she also testified that she had suffered a serious head injury between the incident and the trial, and that since that injury she had been confused. Detective Janice Jenson, of the North Little Rock Police Department, testified that she interviewed the victim on the day after the crimes occurred. She further testified, without objection, that the victim told her that while the third man raped her, appellant was in the room and holding the gun.
Appellant contends that the State failed to prove that he employed any restraint on the victim in excess of that normally incidental to the crime of rape. He argues that the undisputed proof shows that it was Parham who forced the victim at gun point to go to the apartment. He also argues that the only time he restrained the victim occurred during and for the purpose of his commission of rape, which was after she had already been removed to the apartment and restrained there by someone else. The State does not contend that appellant personally committed the elements of the crime of kidnapping. Instead, citing cases turning on accomplice liability, the State contends that appellant’s conviction should be affirmed because the victim was, in fact, kidnapped and “[t]he proof at trial was sufficient to illustrate the joint nature of this appellant’s actions in conjunction with those of Parham, the person identified as having the pistol.”
It is true that a person is criminally liable for the conduct of another when he is an accomplice of the other person in the commission of an offense. Ark. Code Ann. § 5-2-402 (1987). A person is an accomplice of another person if, with the purpose of promoting or facilitating the commission of an offense, he solicits, advises, or encourages the other person to commit it, or aids, agrees to aid, or attempts to aid the other person in planning or committing it. Ark. Code Ann. § 5-2-403(a) (1987). However, in this case, the State did not request, and the court did not give, a jury instruction on accomplice liability. Rather, the case was submitted to the jury only on the theory that appellant, personally, committed all of the elements of both offenses with which he was charged. The jury was not asked or given the opportunity to pass on the question of whether appellant encouraged or assisted anyone else in the commission of kidnapping, and it is outside the province of this court to determine such questions of fact on appeal. Under these circumstances, we do not consider whether the proof would have been sufficient to support a finding that appellant acted as an accomplice to kidnapping.
Nevertheless, we cannot agree with appellant that the evidence is insufficient to support the jury’s finding of his guilt as a principal. Our kidnapping statute speaks in terms of restraint rather than removal. Consequently, it reaches a greater variety of conduct, since restraint can be accomplished without any removal whatever. Commentary to § 5-11-102; see Summerlin v. State, supra. Moreover, it is the quality and nature of the restraint, rather than the duration, that determines whether a kidnapping charge can be sustained. Where the action of the accused substantially confines his victim in such a way that escape is made difficult or impossible, the fact that the restraint is of relatively brief duration does not necessarily remove it from the scope of our statute. Cook v. State, 284 Ark. 333, 681 S.W.2d 378 (1984); Handy v. State, 24 Ark. App. 122, 749 S.W.2d 683 (1988). While the restraint must exceed that which is “normally incidental” to the commission of rape, the kind of restraint that is considered incident to a rape is that which is necessary to consummate the act; any additional restraint will support a conviction for kidnapping. Harris v. State, 299 Ark. 433, 774 S.W.2d 121 (1989).
Appellant’s argument that he insufficiently restrained the victim overlooks Detective Jenson’s testimony, admitted without any objection whatever, concerning her interview of the victim soon after the incident. Among other things, the victim told Detective Jenson that while one of the other men was raping her, and before appellant raped her, appellant stood in the room and held the gun. Viewed in the light most favorable to the State, we conclude that this implied threat of deadly force constituted evidence from which the jury could find restraint by appellant in excess of that incidental to appellant’s rape of the victim. We also conclude that the jury could reasonably infer that at least one of appellant’s purposes in so restraining the victim was to insure that she did not escape before appellant raped her, too. Rape is not a continuing offense; rather, each act of rape is a separate offense. Harris v. State, supra. Therefore, we conclude that there is substantial evidence to support the finding that appellant kidnapped the victim before his act of rape. See id.
Affirmed.
Cooper and Rogers, JJ., agree.
The jury in this case was instructed that the judge determines the law; that it was the jury’s duty to follow the instructions as given; that the jury was not to consider any rule of law unless it was included in the instructions; and that, in order to prove appellant guilty of kidnapping, the State had to prove beyond a reasonable doubt that appellant restrained the victim in the manner and for the purpose prohibited by the statute. | [
112,
-18,
-28,
-68,
10,
98,
58,
-72,
-30,
-45,
119,
-45,
-89,
-16,
4,
115,
46,
63,
-43,
97,
-34,
-73,
7,
-48,
-78,
-13,
57,
-41,
55,
79,
-28,
-44,
69,
112,
-61,
-43,
2,
73,
-13,
24,
-18,
3,
-69,
-31,
81,
20,
36,
115,
-16,
15,
-79,
-98,
-29,
10,
24,
-58,
-55,
40,
-37,
61,
72,
49,
-38,
-121,
-49,
20,
-79,
-76,
29,
38,
-8,
44,
92,
49,
0,
-6,
114,
-74,
-126,
-12,
73,
-117,
-88,
104,
-30,
1,
28,
-17,
45,
-104,
46,
86,
-100,
-90,
-40,
41,
75,
109,
-97,
-11,
118,
20,
8,
-6,
-9,
12,
17,
108,
-122,
-97,
-112,
-79,
13,
52,
16,
112,
-13,
49,
20,
117,
-51,
-14,
92,
23,
91,
-37,
-114,
-77
] |
David Newbern, Justice.
In this negligence case the appellants, Yvette Neal and Frank Hammond, alleged a truck owned by the appellee, J.B. Hunt Transport, Inc., (Hunt) ran their car off the road while passing on a two lane highway, causing Neal and Hammond to be injured. A jury found in favor of Hunt. Neal and Hammond contend two instructions given by the court were erroneous. First, they claim it was error to instruct the jury with respect to a duty they had to yield to the right and not increase speed upon “audible signal,” absent any evidence of such a signal. Second, they contend it was error to give a joint venture instruction absent a showing of some business relationship or purpose common to Neal and Hammond. We reverse on the audible signal instruction and discuss the joint venture instruction because the issue may arise on retrial.
Ms. Neal and Mr. Hammond were college students and co-owners of a green 1981 Mazda GLC automobile. Ms. Neal testified she was driving the vehicle south. Hammond, who had been driving earlier, was a passenger. Ms. Neal testified two 18-wheeler trucks passed them. The second passing truck, owned by Hunt and driven by John Delgado, pulled back into the right-hand lane before completing the pass, causing Neal to swerve off the highway and then back on. There was no contact between the vehicles. Neal and Hammond claimed they were injured physically and emotionally.
Hammond’s testimony corroborated that of Neal to the effect they were forced off the road when the Hunt truck returned to their lane to avoid hitting the oncoming yellow car.
Billy Gene Piggee testified he was driving north in his yellow car when the incident occurred and that his car was run off the road by the oncoming Hunt truck. One of his rear wheels went into the ditch. He saw the green car go off the highway in the course of the incident.
James Austin was driving north following Piggee. He testified he saw the second (Hunt) truck almost hit the yellow car, and that the green car went off on the other side of the road.
John Delgado, the Hunt driver, testified he recalled the incident but that he was passing “a red Chevrolet Caprice . . . being driven ... by [an] elderly woman . . . with three . . . elderly passenger women.” He thought he had plenty of time to pass, but “apparently their speed had increased” and, with the yellow vehicle coming toward him, he watched his mirror to assure clearance of the red Chevrolet Caprice and then switched back to the right-hand lane. When asked, after some coaxing by counsel for Hunt, if he could be wrong about the “red vehicle,” Delgado said he could possibly be but he did not believe so. He said it could have been Neal and Hammond he passed.
1. Audible signal
Arkansas Code Ann. § 27-51-306(2) provides:
Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall yield to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.
Arkansas Model Jury Instructions 903 is designed to allow the court to instruct the jury that violation of a statute, while not necessarily an act of negligence, may be considered along with other facts and circumstances as evidence of negligence. The model instruction permits the court to summarize or quote the statute in question. Counsel for Hunt asked that it be given quoting Ark. Code Ann. § 27-51-306(2) (1987) with a modification. The instruction proffered by Hunt has not been abstracted, but apparently it would have removed the reference to “audible signal,” as there was no evidence whatever of any such signal having been given in this case. The court refused the modification and decided to give the instruction, quoting the statute without modification. Counsel for Neal and Hammond objected because the instruction quoting the statutory section would make reference to audible signal despite the lack of any evidence that one was given.
We hold the instruction was abstract and could have been prejudicial and thus constituted reversible error. That was our holding in Smith v. Alexander, 245 Ark. 567, 433 S.W.2d 157 (1968). Counsel for Hunt attempts to distinguish the case, arguing that our holding was based on the fact that there we were dealing with two vehicles, and each driver contended he or she was driving the “overtaking vehicle.” While we said that fact was a reason for concluding the jury would be confused by the instruction, we made it clear that:
this rule of the road imposes a duty on the driver being overtaken. The duty was shifted to that driver by Act 300 of 1937. There the requirement that an overtaking driver always sound his horn was deleted. Consequently the instruction should not be given unless there is evidence that the driver being overtaken failed to give way to the right on audible signal.
Here we have neither evidence of audible signal nor evidence that the overtaken vehicle failed to give way to the right. We would have to strain to say there was evidence that Neal increased the speed of her car while being passed. Delgado’s testimony was that “apparently” the red Chevrolet Caprice increased its speed. That was weak and equivocal testimony, even if it had been clearly in reference to a green Mazda as opposed to a red Chevrolet Caprice.
Hunt argues the burden of the statue should have been placed on Neal and Hammond because Neal was aware the truck was passing her, thus the audible signal was unnecessary. No authority is cited for that argument, and it is not convincing in view of our clear language in Smith v. Alexander, supra.
2. Joint venture
We find no error in the joint venture instruction. Neal and Hammond live together and are the parents of a child. When the incident in question occurred, they were returning from a trip to Little Rock to pick up Hammond’s nephew at a hospital. They complain that their common ownership of the car is insufficient to warrant the instruction and it was inappropriate to give such an instruction absent a business relationship between them. Citing Woodward v. Holliday, 235 Ark. 744, 361 S.W.2d 744 (1962), and Wymer v. Dedman, 233 Ark. 854, 350 S.W.2d 169 (1961), they contend there must be a showing of “an equal right to direct and govern the movements and conduct of each other in respect to the common object and purpose of the undertaking.”
After explaining how the joint enterprise doctrine has fallen into disrepute, a leading torts authority notes that, “The essential question is whether the parties can be found by implication to have agreed to an equal voice in the management of the vehicle, which in the normal and usual case is merely an issue of fact for the jury.” D. Dobbs, R. Keeton, and G. Owen, Prosser and Keeton on Torts, p. 521 (5th Ed. 1984).
We are not asked to decide whether there was sufficient evidence of negligence on the part of Ms. Neal to justify a joint enterprise instruction which, presumably, was for the purpose of imputing any negligence on the part of Neal to Hammond. We are concerned only with the question whether, as they put it, there was a showing of “an equal right to direct and govern the movements and conduct of each other in respect to the common object and purpose of the undertaking.”
In Reed v. McGibboney, 243 Ark. 789, 422 S.W.2d 115 (1967), we found a basis for the joint enterprise instruction in testimony of a man who owned the car being driven by a friend while they were returning from a business open house. The owner testified that he could have asked the driver to stop the car, and he could have taken control at any time. Ms. Neal testified she would have turned the driving back over to Hammond if he had asked.
While we are not enamoured of the joint enterprise doctrine, it is a part of the common law of this State. Assuming the evidence on retrial is sufficient to raise an issue of negligence on the part of Neal and it remains the same on the matter of right to control the vehicle, the giving of the instruction will not constitute error.
Reversed and remanded. | [
-16,
122,
88,
-82,
24,
66,
58,
26,
-75,
-51,
103,
-45,
-81,
-61,
29,
115,
-1,
61,
117,
43,
-9,
-77,
7,
-94,
-78,
19,
123,
-122,
-78,
75,
126,
-69,
76,
48,
-54,
-35,
38,
72,
-28,
94,
-50,
30,
-71,
125,
-103,
18,
-24,
62,
20,
15,
37,
-100,
-29,
46,
25,
79,
40,
40,
107,
104,
-63,
-16,
-55,
5,
119,
0,
-79,
36,
-70,
45,
-8,
10,
-48,
-79,
8,
-8,
122,
-78,
-111,
-12,
45,
-119,
-124,
-96,
98,
33,
21,
79,
-68,
-104,
46,
-22,
15,
-114,
58,
9,
41,
33,
-105,
29,
90,
22,
4,
122,
-33,
85,
25,
96,
1,
-49,
48,
-127,
-51,
-32,
-100,
24,
-21,
-125,
50,
81,
-51,
-30,
94,
69,
82,
55,
79,
-126
] |
Robert H. Dudley, Justice.
Veronica Blanchard com plained to the Jacksonville Police Department that appellant Mark Tovey, a Jacksonville police officer, had sexual intercourse with her while he was on duty. The Internal Affairs Division of the police department conducted an investigation of the alleged incident. A report on the investigation was prepared and given to the chief of police. As a result, the chief suspended appellant from the force without pay for ten (10) days and placed him on probation for one year. Appellant appealed the disciplinary action to the Civil Service Commission of Jacksonville. After a hearing, the Commission increased the period of suspension to thirty (30) days without pay. Appellant appealed that decision to the circuit court. The circuit court upheld the action of the Commission. We affirm the circuit court.
Appellant first argues that the trial court erred in finding that the Civil Service Commission had the authority to increase the disciplinary punishment imposed by the police chief.
Historically, civil service commissions have been authorized to modify disciplinary penalties imposed by a police chief. In Civil Serv. Comm’n v. McDougal, 198 Ark. 388, 129 S.W.2d 589 (1939), charges were filed with the commission alleging that a police officer was drunk on the job. The commission notified the police chief and directed him to suspend the officer immediately. The police chief did so, but nine (9) days later informed the commission that he had restored the officer to work status. The commission told the officer that the charges had not been disposed of and instructed him not to return to work. The officer demanded a hearing, after which the commission discharged him. On appeal to circuit court, the officer argued that the right to discipline rested entirely with the chief of police and that the commission was without authority to proceed. The trial court agreed with the officer’s argument, but we reversed, explaining:
It is true § 4 provides that all employees in the department shall be governed by rules and regulations set out by the chief, “. . . after such rules and regulations have been adopted by the governing bodies,” etc., but this does not mean that when the Commission has approved expressed standards of conduct, as to which the chief of police has a duty of enforcement, the Commission is deprived of all authority, and must supinely acquiesce in any policy of discipline the chief may determine is proper. Certainly that official’s power of supervision cannot rise above the source from which it was derived.
If we should affirm the lower court’s judgment, we would say that the Commission (to which has been delegated authority to make necessary reasonable rules to carry into effect the intent of civil service) once having made its rules, and having designated the chief of police executive head of the department, with power “. . . to establish rules and regulations for the police department and to discipline those under his authority for violation of such rules and regulations,” has thereby surrendered complete control of the department to such chief — an abdication not contemplated by the statute. Effect of this argument, if conceded, would be to say that once the chiefs rules have been approved by the Commission, the creative body automatically loses its supervisory powers, and must abide the judgment or even the caprice of its own agent except in matters of appeal.
If this construction should be approved, then regardless of the nature of an offense charged against a member of the police force, the Commission could only refer the complaint to the chief for such administrative disposition as that officer might think proper. Assuming a serious infraction, and that charges against the accused should be dismissed with a mild admonition or a mere reprimand, there would be none to appeal. The accused could hardly be expected to disagree with such a verdict, and citizens and the Commission would be bound by the chief.
( Emphasis added.) McDougal, 198 Ark. at 394-96. See also Malvern Civil Serv. Comm'n v. Bass, 252 Ark. 178, 477 S.W.2d 842 (1972). Similarly, we have held that a circuit court has jurisdiction to modify punishment fixed by the civil service commission. City of Little Rock v. Hall, 249 Ark. 337, 459 S.W.2d 119 (1970).
The foregoing holding, and its reasoning, establish that a civil service commission is authorized to modify, by increasing or decreasing, the punishment imposed by a police chief. However, the opinion in McDougal contains a paragraph which appellant relies upon in making his argument:
Act 28 provides for suspensions “for not longer than thirty days.” Under the Commission’s rules, and the law, we think the chief would have the right, irrespective of the Commission, to resort to suspension of an insubordinate or otherwise offending officer for the period mentioned, and unless the chief s action in so doing was arbitrary, the Commission would be bound thereby, in so far as the subject of discipline was concerned.
(Emphasis added.) McDougal, 198 Ark. at 394-95. This paragraph is contrary to the quoted reasoning that surrounds it, and can only be described as perplexing dicta. To the extent this paragraph may be in conflict with this opinion, it is overruled.
Appellant additionally asserts that regardless of whether the commission in the past had the authority to modify the punishment, it does not now have that authority because the governing statute, Ark. Code Ann. § 14-51-301 (c) (Supp. 1989), has been amended to provide:
(c) The commission shall adopt such rules not inconsistent with this chapter for necessary enforcement of this chapter, but shall not adopt any rule or rules which would authorize any interference with the day-to-day management or operation of a police or fire department.
(Emphasis given to show portion added by 1989 amendment.) Appellant argues that in increasing his suspension the commission interfered with the day-to-day management of the police department, something it is forbidden to do under the amended statute. The argument overlooks the fact that the commission is expressly charged with enforcing the rules and regulations governing police departments. Ark. Code Ann. § 14-51-301 (1987). In addition, the General Assembly is presumed to be familiar with the holdings of this Court in enacting legislation. McEntire & Sons, Inc. v. Hart Cotton Co., 256 Ark. 937, 511 S.W.2d 179 (1974). If the General Assembly had intended to eliminate commission authority to modify disciplinary penalties, it would have made such an intention clear as such a change would represent a significant departure from our case law. In sum, the modification of punishment, after a statutory hearing, cannot be construed as “interference with the day-to-day management or operation of a police or fire department.” Instead, it is the statutorily authorized enforcement of a regulation.
Appellant next argues that the trial court erred in finding that he engaged in sexual conduct with Ms. Blanchard while on duty. Our standard of review in cases of this nature is to determine whether the trial court’s finding of fact is clearly against the preponderance of the evidence. ARCP Rule 52; Dalton v. City of Russellville, 290 Ark. 603, 720 S.W.2d 918 (1986). The finding is not clearly erroneous.
Appellant set out numerous alleged ambiguities and contradictions in the testimony; however, the determination of credibility rested with the circuit court, not this Court. The circuit court found Ms. Blanchard’s recorded testimony from the commission hearing to be credible. That testimony is, in part, as follows:
A. I had someone else call him. I had my boss at Pizza Pro call. He called the police department and the radio dispatcher took the message for Sergeant Tovey to contact . . . Pizza Pro.
Q. And did Mark Tovey come to Pizza Pro at that time?
A. He showed up with his lights on.
Q. With his blue lights on?
A. Yes.
Q. Was he in uniform?
A. Yes, sir.
Q. And was in a patrol car?
A. Yes, sir. He was in his patrol car.
Q. And asked you to meet him at Paradise Park. Is that right?
A. Follow him.
Q. Follow him. Did you follow him to Paradise Park?
A. Yes.
Q. What happened?
A. He pulled in. There’s a clump of trees right near the opening, and he pulled in and asked me to park in front of him. And I got out of the car and he said, “Stay here a minute.” And he went over and went to the bathroom in the trees. And I waited by the car and he came back and we started kissing and it didn’t take very long and then we had intercourse.
Affirmed. | [
-80,
-6,
-56,
-34,
11,
1,
-74,
36,
-47,
-71,
-9,
115,
-83,
-53,
0,
123,
-22,
125,
84,
115,
-63,
-14,
-25,
33,
-66,
-13,
-23,
-39,
-77,
79,
-12,
-12,
93,
49,
-86,
-43,
102,
75,
-35,
80,
-122,
7,
-117,
-27,
80,
-64,
48,
58,
26,
79,
33,
-49,
-29,
110,
16,
-61,
-20,
104,
88,
32,
64,
115,
-104,
-123,
-18,
20,
-77,
37,
-97,
-121,
-4,
118,
-103,
49,
32,
-8,
115,
-74,
2,
116,
111,
-101,
-128,
66,
104,
2,
9,
-105,
-104,
-23,
28,
-2,
-99,
-89,
-104,
57,
107,
13,
-74,
-105,
102,
20,
6,
116,
-13,
-59,
91,
36,
11,
-118,
4,
-95,
79,
100,
-106,
66,
-49,
17,
16,
68,
-50,
-14,
84,
69,
51,
91,
-17,
-110
] |
Robert L. Brown, Justice.
The appellants (“Godwin”) appeal from two orders dismissing their complaint against the appellees (“Churchman/Turner/Bonds”). The trial court’s dismissals were premised on violation of the statute of limitations and failure to state appropriate facts under Ark. R. Civ. P. 8(a) and 12(b)(6).
We affirm in part and reverse in part and remand.
In June 1981 Godwin, who had an established accounting practice, began discussions with Churchman/Turner/Bonds, who were also accountants, about working together under a mutually agreeable business arrangement. Over the next three years, the accountants worked together as part of a corporation formed for that purpose — Godwin, Churchman, Turner & Bonds, Ltd. Though at least two meetings were held with counsel to fashion a business agreement, none was executed by the parties.
By the latter part of 1984 the business relationship between Godwin and Churchman/Turner/Bonds had deteriorated to the point that on November 9,1984, Turner advised Godwin and his attorney that Churchman/Turner/Bonds wished to terminate the business relationship and buy out Godwin. Godwin refused. On November 11, 1984, Churchman/Turner/Bonds individually tendered their resignations to Godwin. On November 16, 1984, Godwin’s attorney wrote Churchman/Turner/Bonds on Godwin’s behalf to request certain information from them prior to a meeting to “wind up” corporate matters.
Over the next few working days, from November 12 through November 23, 1984 (November 22 was Thanksgiving Day), Churchman/Turner/Bonds continued working at the corporation office. Churchman/Turner/Bonds testified that this was solely for the purpose of winding up affairs. Over the following weekend (November 24-25), Churchman/Turner/Bonds took furniture, client files in progress, computer diskettes with client information, and financial data including accounts receivable from the office, without giving prior notice to Godwin.
Godwin filed his complaint against Churchman/Turner/ Bonds on November 20,1987, and alleged six counts, all of which are connected to the schism in the business enterprise: 1) breach of oral contract; 2) breach of implied contract; 3) tort of outrage; 4) tortious interference with Godwin’s clients; 5) conversion of property; and 6) breach of fiduciary duty owed the corporation. Churchman/Turner/Bonds moved to dismiss the complaint under Ark. R. Civ. P. 12(b) for lack of jurisdiction and failure to state claims upon which relief could be granted with accompanying brief on December 3, 1987, and attached to their motion an affidavit by Turner. Godwin responded to the motion with a brief and affidavit on December 14,1987. The response of Godwin, the briefs of both parties, and both affidavits assert facts not included either in the original complaint or in the motion to dismiss.
On March 31,198 8, a hearing was held by the trial court on the limitations question raised as part of the jurisdiction allegation in the 12(b) motion of Churchman/Turner/Bonds. In the course of that hearing testimony was taken from all parties, as well as from Godwin’s wife, and exhibits were introduced. The trial counsel admitted at the conclusion of the hearing that the evidence taken went beyond the limitations issue. The trial court dismissed Count I (breach of oral contract) and Count II (breach of implied contract) on July 21, 1988, on limitations grounds. Prior to that order a second 12(b)(6) motion to dismiss was filed by Churchman/Turner/Bonds on July 6, 1988, with a brief in which counsel argued that Godwin’s complaint should be dismissed because it constituted notice pleading rather than the required fact pleading under Ark. R. Civ. P. 8(a). The trial court granted the second motion and dismissed the remaining four counts of Godwin’s complaint on January 18, 1990.
We begin with an analysis of what exactly was the nature of the first motion considered by the trial court. The motion filed by Churchman/Turner/Bonds ostensibly was a 12(b) motion, but once matters outside of the pleadings were presented to the trial court the rules require that the motion be considered one for summary judgment and be treated as such and disposed of as provided in Rule 56. See Ark. R. Civ. P. 12(b). We have held that it is improper for the trial court to look beyond the complaint to decide a 12(b) motion unless it is treating the motion as one for summary judgment. See Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989); Guthrie v. Tyson Foods, 285 Ark. 95, 685 S.W.2d 164 (1985). We have further said that even if the trial court treats the motion as one for summary judgment, it is incorrect for it then to base its decision on factual allegations made in the briefs and exhibits. Id. Our civil procedure rules clearly provide that the trial court may only consider “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any” for summary judgment purposes. Ark. R. Civ. P. 56(c).
By going beyond the complaint in considering the first 12(b) motion, the trial court converted that motion to one for summary judgment under Rule 56, according to the peremptory language of Rule 12(b). Moreover, by going beyond the pleadings, discovery, and affidavits, the trial court erred for purposes of summary judgment, and the procedure followed did not fall within the specific parameters of Rule 56.
What transpired before the trial court on March 31, 1988, was, in reality, a trial on the limitations issue. Live testimony was presented from six witnesses and several exhibits were introduced by both parties, after which time the trial court made a factual determination regarding the statute-of-limitations defense. The proceedings were not orchestrated solely by the trial court. The attorneys for both parties agreed to a hearing with testimony and exhibits to decide the limitations issue. The trial court initially questioned the propriety of doing this, but at the end it agreed to proceed:
Court: Well, that’s fine, I mean, I’ll do it that way if both of y’all agree. . . .
McLarty: Well, what I had suggested in my motion is that if the cause of action is clearly barred by limitations, that my clients particularly ought not to have to be put through the expense, time and trouble of a full-scale preparation and a full-scale trial.
Court: I’ll tell you what let’s do. I can’t answer this question until I hear the proof.
McLarty: I don’t think you can.
Court: And, I think you’re right. And let’s go ahead and put on what we’ve got today and I’ll listen to it and if I think that’s part of a fact question for a jury, then I’m going to, I’m going to. . .
McLarty: You’re going to overrule the motion.
Lyons: I understand that and I have no objection to the Court hearing it if the Court. . .
Court: Well, I got to hear it in order to know —
Lyons: Right.
Court: — so let’s go.
Lyons: And if the Court feels—
Court: I know what I’m doing now.
Lyons: — that it’s properly a factual determination for the jury to do, then you will simply overrule the motion at this time.
Thereafter, a hearing on the limitations issue occurred. As indicated from this colloquy the trial court first sought to decide whether a fact issue existed to present to the jury. At the end of the hearing the trial court was inclined to rule on the limitations question directly and also on whether sufficient facts had been pled in Godwin’s complaint on all counts under Rule 8(a). The following colloquy ensued:
Lyons: Judge, it was my understanding that the, I understand what the motion says, it was my understanding with Mr. McLarty, and I think he would agree with me, that the only issue to be decided today was statute of limitations and nothing. . .
Court: On all six or the first one?
Lyons: On all six and nothing else.
Court: All right. Now, let me get the record straight.
Lyons: Is that correct?
Court: All right, I’ll give you what you want.
The trial court then proceeded to discuss the absence of sufficient facts pled under all counts but Count I. The court said it was inclined to dismiss only Count I (breach of oral contract) on limitation grounds, but wanted briefs on the subject. Almost four months later it dismissed Counts I and II as violative of the three year statute of limitations.
For guidance on this issue we turn to Ark. R. Civ. P. 15 (b). That rule governs amendments to the pleadings to conform to the evidence and provides that where an issue is tried by the express or implied consent of the parties, it shall be treated in all respects as if it had been raised in the pleadings. This results, according to the rule, even if a motion to amend the pleadings to conform is not made by the affected party. So it was in the case before us. Counsel for both parties agreed to a hearing on the limitations issue which resulted in a trial of that issue. The trial court then made its decision and issued its order dismissing Counts I and II. We, therefore, hold that the limitations issue was tried as if it were an affirmative defense to Godwin’s complaint under Ark. R. Civ. P. 8(c) with the express consent of the parties, and we treat it as if it had been raised in the pleadings.
We further hold that the limitations defense was tried before the trial court by agreement of the parties. While it first appeared that the trial court would limit itself to deciding whether a jury question was involved, by the end of the hearing it was obvious that the trial counsel wanted a decision on the limitations question itself, and the trial court obliged.
We turn next to the question of whether substantial evidence exists to support the trial court’s dismissal of Counts I and II on limitations grounds. See Ark. La. Gas. Co. v. Hutcherson, 287 Ark. 247, 697 S.W.2d 907 (1985). We hold that it does. The issue, boiled down to its essence, centers on whether breach of the oral contract to do business occurred, when Churchman/Turner/ Bonds tendered their resignations on November 11, 1984, or when they vacated the office on November 23-24, 1984. Only if the latter dates apply was Godwin’s complaint relative to Counts I and II timely commenced.
There is no doubt that the evidence of the earlier breach is substantial, as witnessed by Godwin’s own testimony concerning the November 11 meeting:
Counsel: Well, isn’t that the effect of what they said, the deal to buy you out was off?
Godwin: That was my understanding of it.
Counsel: And if they breached or failed to live up to any agreement to buy you out, they breached it as of that date, didn’t they?
Godwin: The way I look at it is when they did the last thing in, in point of time.
Counsel: But was there any doubt in your mind when you had your last meeting with them with Marvin being present, was there any doubt in your mind but that the deal to buy you out in oral or otherwise was off, over and done with?
Godwin: Right.
Counsel: All right, Sir. And whenever that day was, it was before the 11th of November of 1984.
Godwin: That’s when I knew that they, that they were planning to move out, that’s right.
Counsel: And that the deal was off.
Godwin: Well, they said either accept it or reject it and I rejected their offer. And I understood then that they were pulling out, they were quitting. They were quitting, didn’t want to follow through on the contract.
Counsel: All right, they were not wanting to follow through on the contract.
Godwin: That’s right. They. . .
Counsel: And that happened before the 11th, is that right?
Godwin: Well, they told me before the 11th. I mean, I knew before the 11th that they were moving.
Godwin himself clearly conceded that he had knowledge of the breach of the oral contract by the earlier date. We affirm the trial court’s order dismissing Counts I and II.
We turn now to the second motion to dismiss filed by Churchman/Turner/Bonds alleging failure to state facts upon which relief can be granted under Rule 12(b) (6). This motion was filed on July 6, 1988, after the March 31, 1988 hearing. The accompanying brief argues not only Ark. R. Civ. P. 12(b)(6) for dismissal of the four remaining counts but also Ark. R. Civ. P. 8(a) due to the insufficiency of the facts pled. The trial court dismissed the four counts on January 18, 1990, without findings or further comment. On appeal Godwin again argues that the trial court erred in not treating the second motion as one for summary judgment.
Our analysis is somewhat akin to that used for the first motion to dismiss and we look to determine whether the trial court went outside of the pleadings in making its decision. Unlike the limitations issue, however, here there is nothing to suggest that the trial court made its decision based on matters outside of the pleadings. We are mindful that a hearing did occur on March 31, 1988, and that the trial court was disposed at the hearing’s conclusion to rule on the notice pleading issue. Indeed, at the hearing the trial court said that it regarded the complaint “as being conclusions more than fact” and asked for briefs on the question. This remark supports a conclusion that the trial court’s order was ultimately grounded on the pleadings alone. Indeed, the order says as much, and Godwin is not convincing to the contrary.
Arkansas has adopted a clear standard to require fact pleading: “A pleading which sets forth a claim for relief. . .shall contain (1) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief. . . .” Ark. R. Civ. P. 8 (a). By the same token our rules state that “All pleadings shall be liberally construed so as to do substantial justice.” Ark. R. Civ. P. 8(f).
Paragraph fourteen of Godwin’s complaint in particular provides the factual basis for the four counts at issue:
14. That without notice or warning to the Plaintiff Godwin or to the clients, the Defendants removed the files, including those originally brought into the practice by Plaintiff Godwin, copied the computer diskettes which were the property of Plaintiffs, took the furniture which was the property of Plaintiffs and took over the Plaintiffs’ accounting practice which he had brought into the group.
This factual allegation meets the criteria for the tort of conversion in that Godwin sufficiently alleges that Churchman/Turner/ Bonds exercised dominion over property in violation of the rights of the owners. See Car Transportation v. Garden Spot Distr., 305 Ark. 82, 805 S.W.2d 632 (1991). We hold, accordingly, that the trial court erred in dismissing the conversion count (Count V).
We further hold that sufficient facts were pled to assert a claim by the corporation for breach of fiduciary duty. (Count VI). Churchman/Turner/Bonds were alleged to be officers of the corporation. As such they held positions of trust and occupied a fiduciary relationship to the corporation. See Taylor v. Terry, 279 Ark. 97, 649 S.W.2d 392 (1983). In their fiduciary capacities they were foreclosed from acquiring property in which the corporation had an interest. Id. Certainly, they could not act to benefit themselves personally at the expense of the corporation. Id. Here, the corporation is a party, and it has alleged that Churchman/Turner/Bonds “misappropriated for their own personal benefit business expectancies and opportunities properly belonging to the Plaintiff corporation. . . .” Paragraph 14, quoted above, itemizes what was taken more precisely. A sufficient claim has been stated, and the trial court was wrong in dismissing this count.
We affirm the trial court on the two other dismissals. In Count III Godwin alleges the tort of outrage based on the removal of his property and states the conduct of Churchman/Turner/ Bonds was outrageous, intolerable in a civilized society, and caused him emotional distress. The alleged taking of property did not raise sufficient facts to sustain a count for the tort of outrage or to withstand a 12(b)(6) motion. See Rabalais v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985).
Nor has Godwin successfully pled facts for tortious interference (Count IV). No valid contractual relationship with a particular third party which was intentionally interfered with by Churchman/Turner/Bonds was pled by Godwin. See Mid-South Beverages, Inc. v. Forrest City Grocery Co., Inc., 300 Ark. 204, 778 S.W.2d 218 (1989). The trial court correctly dismissed this count.
In sum, we affirm in part and reverse in part and remand. | [
-80,
-22,
-40,
44,
24,
-125,
58,
-66,
90,
-54,
-89,
87,
-19,
-17,
16,
125,
-47,
93,
117,
106,
-59,
-77,
23,
32,
-10,
-77,
-47,
-43,
-71,
77,
-12,
28,
76,
32,
10,
-43,
-30,
-126,
-55,
28,
-122,
0,
51,
-20,
-7,
-64,
48,
11,
16,
15,
53,
-98,
-93,
44,
53,
-49,
8,
46,
111,
104,
80,
49,
-102,
13,
111,
55,
-79,
-123,
-104,
3,
-24,
47,
-120,
-80,
-95,
-23,
112,
-74,
-62,
116,
107,
121,
12,
96,
98,
34,
-127,
-27,
-100,
-128,
6,
-2,
-99,
-89,
-16,
80,
11,
77,
-65,
-105,
89,
16,
35,
-4,
-24,
13,
-103,
108,
-117,
-50,
-42,
-125,
-115,
-9,
-36,
27,
-18,
51,
48,
85,
-49,
-30,
93,
71,
50,
-101,
94,
-43
] |
David Newbern, Justice.
In 1989, Scott County undertook reappraisal of property for taxation purposes to comply with Ark. Const, amend. 57. The reappraisal could not be completed prior to 1990. Donald Frost, the appellee, brought a class action in the Scott County Circuit Court to enjoin the appellants, Scott County, the Scott County Judge, Collector, and Assessor, from collecting taxes until all of the property in Scott County had been reassessed. The Assessment Coordination Division of the Arkansas Public Service Commission was later joined as a defendant.
Mr. Frost contended that only 40 % to 45 % of the property in the County had been reassessed and that it would violate the equal protection and due process clauses of the United States Constitution and the equal protection clause of the Arkansas Constitution if taxes were to be collected in 1990 based on the 1989 assessments. The parties stipulated that some property owners would owe taxes in 1990 on the reassessed value of their property, and others would pay at the old assessment rate.
The Circuit Court granted injunctive relief against the County on the basis of Ark. Const., art. 16, § 5(a), which requires that taxation be based on property value “equal and uniform throughout the State.” The order ultimately was stayed during appeal on condition that, when collecting the tax, the County would notify members of the class of taxpayers affected that their taxes might change as a result of this case.
We must reverse the decision and dismiss the case because the Circuit Court lacked jurisdiction of the subject matter. County courts have “exclusive original jurisdiction in all matters relating to county taxes.” Ark. Const. art. 7, § 28. While chancery courts may enjoin “illegal or unauthorized taxes and assessments,” Ark. Code Ann. § 16-113-306 (1987); McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1991), we do not remand for transfer to a chancery court. Mr. Frost is not contending that his assessment is “illegal or unauthorized” but that there is a procedural flaw. We discussed the distinction in the McIntosh case. See also Burgess v. Four States Mem. Hosp., 250 Ark. 485, 465 S.W.2d 693 (1971).
A circuit court could have jurisdiction of a taxation matter such as this, but it would be as a result of Ark. Const., art. 7, § 33, which provides for appeals to be taken from county court to circuit court. The record in this case demonstrates that Mr. Frost made no appearance before the Scott County Equalization Board from which he could then have appealed to the County Court and the Circuit Court.
Reversed and dismissed. | [
-44,
-22,
-11,
124,
-88,
-64,
59,
-124,
66,
-95,
102,
83,
-17,
67,
16,
43,
-30,
91,
101,
104,
-57,
-74,
83,
3,
112,
-13,
-37,
95,
123,
79,
-28,
-44,
72,
113,
-54,
-43,
100,
-32,
-17,
-34,
78,
2,
11,
69,
-8,
68,
56,
-87,
18,
75,
113,
-113,
-13,
44,
20,
-63,
73,
44,
89,
63,
64,
58,
-86,
71,
111,
7,
33,
101,
-104,
65,
104,
46,
-112,
57,
80,
-8,
115,
54,
-110,
84,
13,
-99,
8,
40,
-26,
1,
5,
-1,
-80,
-88,
46,
-65,
45,
-73,
-108,
88,
75,
79,
-90,
-100,
127,
82,
12,
-4,
-25,
-123,
31,
108,
-123,
-18,
-108,
-77,
4,
44,
-128,
67,
-33,
-125,
16,
113,
-60,
-13,
87,
71,
115,
-69,
-114,
-43
] |
Tom Glaze, Justice.
Appellee, Charlotte Allen, filed suit against appellants, W. D. Wilson, Jr. and his father W. D. Wilson, Sr., alleging that they fraudulently induced her to convey the titles of a 1982 Ford Bronco and a 1984 Ford pickup truck belonging to her deceased husband’s estate. Allen further alleged that Wilson, Jr. misrepresented to her that he would sell the two vehicles and pay her the fair market price. Both vehicles were sold, and the proceeds from the Ford Bronco were used to pay off the pickup, but Allen never received the money from the sale of the pickup. The Wilsons alleged that they were robbed before they could give the money to Allen. In a nonjury trial, the trial judge awarded judgment in the amount of $2,600 against the Wilsons.
W. D. Wilson, Sr. appeals from the verdict arguing that there is insufficient evidence to support the court’s judgment against him. His son, W. D. Wilson, Jr., is not represented in this appeal. Specifically, Wilson, Sr. contends that he had nothing to do with his son’s dealings with Allen. We find no error and therefore affirm.
To prevail in a case of fraud, the plaintiff must show: (1) the defendant made a false, material representation (ordinarily of fact); (2) the defendant had knowledge the representation was false or asserted a fact which he did not know to be true; (3) the defendant intended the plaintiff should act on the representation; (4) the plaintiff justifiably relied on the representation; and (5) plaintiff was damaged as a result of such reliance. Malakul v. Altech Arkansas, Inc., 298 Ark. 246, 766 S.W.2d 433 (1989). On review, findings of fact by a trial court shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence). Commercial Union Ins. Co. v. Sanders, 272 Ark. 25, 611 S.W.2d 754 (1981). We have stated that it is for the trial court, as the fact finder, to judge the credibility of the witnesses, weigh the evidence, and draw permissible inferences therefrom. Id.
In viewing the evidence in the light most favorable to Allen, as we must, we first look at Allen’s testimony of what occurred. Allen said that she met Wilson, Jr. at her place of work when he told her that he sold cars for a living, and offered to sell the two vehicles and pay her the vehicles’ fair market price from the sale proceeds. Allen first met Wilson, Sr. when he and his son came to pick up the vehicles to be sold, and Wilson, Sr. drove one of the vehicles away. At this time, Wilson, Jr. told Allen that he needed the titles to both vehicles. Allen owned the Ford Bronco free of any encumbrance, so she possessed that vehicle’s title and was able to sign and deliver it immediately. In doing so, she stated to Wilson, Jr., in his father’s presence, “Don, please don’t run off with the money because I need it.” Wilson, Sr. quickly assured her that he would see that his son would not run off with the money.
Apparently, Wilson, Jr. then sold the Bronco and used the money to pay off the outstanding loan on the pickup and to obtain the title to it. Wilson, Jr. later presented Allen with the pickup’s title for her signature, and he told Allen that he and his father were going to take the truck to Little Rock to sell it and would bring her the money that afternoon. When Allen failed to hear from the Wilsons that night, she called them and was told by both men that they had been robbed and Allen’s money was taken. A couple of days later, Wilson, Sr. brought her a letter written by his son. In that letter, Wilson, Jr. reiterated his earlier story that the Wilsons had been robbed, but further stated that his father was going to the bank for him and would get it worked out.
From the foregoing evidence, the trial court obviously did not believe the Wilsons’ story that Allen’s money had been stolen in a robbery, and while Wilson, Sr. contends he was not a party to any material misrepresentation made to Allen, the trial court, did not have to believe or accept his story. Also, Wilson Sr. claims that his participation or assurances made in this transaction were not substantial, nor, he further asserts, did his assurances constitute material misrepresentations upon which Allen could reasonably or justifiably rely. We cannot agree.
As can be discerned from Allen’s version of what occurred, we believe such evidence raised a fact question bearing on these very issues now argued, and we are unable to say the trial court was clearly wrong in finding against Wilson, Sr. on these factual matters. At the very least, we believe the trial court could have found that Wilson, Sr. played a role, albeit a supporting one, in the fraudulent scheme his son perpetrated upon Allen. See Malakul, 298 Ark. 246, 766 S.W.2d 433.
We affirm. | [
114,
108,
100,
44,
24,
-32,
42,
58,
71,
3,
53,
83,
-17,
-58,
20,
59,
-10,
77,
116,
105,
86,
-77,
23,
35,
82,
-105,
-7,
-59,
-75,
-53,
-28,
84,
77,
48,
-54,
-35,
98,
-54,
-59,
80,
-86,
0,
-86,
101,
121,
69,
52,
-93,
-10,
15,
97,
-97,
-45,
46,
26,
66,
109,
46,
107,
-69,
-48,
-112,
-54,
5,
-33,
22,
-77,
36,
-102,
45,
88,
8,
-108,
-80,
3,
-8,
51,
-74,
-126,
-28,
107,
-119,
8,
102,
115,
34,
20,
-19,
-16,
-120,
38,
-66,
31,
39,
90,
104,
11,
33,
-73,
-100,
123,
16,
14,
-24,
-6,
29,
28,
104,
1,
-49,
-42,
-95,
-83,
48,
26,
25,
-17,
-95,
22,
113,
-51,
-78,
93,
5,
123,
-69,
-122,
-73
] |
David Newbern, Justice.
This mortgage foreclosure case presents a question with which we have not previously dealt. If a lender accepts both personalty and realty as collateral for a loan and, upon default, proceeds first against the personalty in a commercially unreasonable manner, how will the remainder of the debt be calculated and what are the lender’s remaining remedies? We hold that if the lender is unable to show that market value or more was obtained for the personalty sold, a rebuttable presumption arises that the remainder of the debt will be the difference between the market value of the personalty which has been sold and the debt owed at the time the personalty was sold. The Bank will be barred from foreclosure on the real estate mortgage or from a deficiency judgment if it is unable to show that the collateral was insufficient to satisfy the debt.
Delton Simpson and his wife, Darlene Simpson, operated a logging business. They refinanced four pieces of logging equipment with the Bank of Bearden resulting in their signing a note to the Bank of $34,111.42. Gee Owens, Darlene Simpson’s father, also signed the note. As additional security, a real estate mortgage was made to the Bank by Delton, Darlene, and Leatha Simpson. Due to an illness suffered by Delton Simpson, note payments were not made, and a default occurred.
The Bank sold the logging equipment without giving notice to the Simpsons, and none of the debtors were present at the sales. The items were sold separately, and the monies received were applied by the Bank partially to the refinancing note and partially to another note Delton and Darlene Simpson owed to the Bank. The Bank claimed that $19,028.01 remained due on the refinancing note which was originally for $34,111.42.
The Bank then brought this action to foreclose against the real estate. Delton and Darlene Simpson defended on the basis that the Bank should be allowed no further relief after selling their equipment in a commercially unreasonable manner. They also counter-claimed, alleging bad faith and the tort of outrage. The chancellor denied relief on the Simpsons’ counter-claim. He awarded a judgment in favor of the Bank.
In the original order, the Chancellor found that the Bank had failed to comply with the notice requirements of the Uniform Commercial Code upon selling the logging equipment.
The Chancellor’s amended order, after reciting the facts, and reaffirming its original order, stated that the Bank could “proceed to collect in accord with. . . [Ark. Code Ann. § 4-9-501 (4)]. . .its remedies, with regard to real property collateral are not governed by the U.C.C. repossession procedures.” The order further recited that “the Defendants,” naming the Simpsons and Gee Owens, had been properly served,and then it provided:
that the Defendants are justly indebted to the Plaintiff, Bank of Bearden, in the sum of $ 10,496.52 as evidenced by portion paid off on land included in total debt, after credit for pro-rata payments, plus interest ... at the rate of 10.5% per annum, as a result of a Promissory Note. . . .
The order then recited the terms of the real estate mortgage securing the note, after which it stated a total indebtedness figure of $14,665.06 plus costs “to which the Plaintiff [Bank] is entitled to have judgment against the Defendants, with said judgment to bear interest ... at a rate of 10% per annum, and to have judgment entered, foreclosing the rights of Defendants on the aforesaid Mortgage.” That figure represented the amount left unpaid on the note plus interest to date and attorney’s fee. It was less than the Bank alleged to be due because the Chancellor credited to the note the total amounts received by the Bank from the sales of the equipment, thus not allowing the Bank to use the proceeds to reduce Delton and Darlene Simpson’s other obligations to the Bank.
The order then recited that Gee Owens was a “separate borrower” so far as the U.C.C. provisions applied and as to the subject mortgage. Owens was not a party to the mortgage.
The order winds up by stating, “IT IS ALSO, THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED that the . . . Bank. . . have and recover a judgment In Rem against the land ... in the amount of $ 14,665.06 including the attorney’s fee with interest from this day at a rate of 10 % per annum; . . . .”
The Bank argues that the security agreement specifically provided that the logging equipment was security not only for the refinancing note but for any other obligation of the debtors to the Bank. It is thus contended that the Chancellor erred by refusing to allow the Bank to credit some of the proceeds of the equipment sales to Delton Simpson’s other obligations to the Bank. It also argues that the Chancellor erred in calculating interest at 10% because the Code called for 10.5 % which was the amount sought in the Bank’s complaint. The Simpsons and Owens do not directly contest these arguments. They do, however, contest the Bank’s argument that it is entitled to personal relief against them in addition to the “in rem” judgment against the land. Their cross-appeal seeks relief from the mortgage foreclosure, claiming that it is based on a deficiency judgment to which the Bank is not entitled because it violated the Uniform Commercial Code when it sold the logging equipment. While it is true that the Simpsons and Owens have not questioned the specific amounts the Bank received upon sale of the logging equipment, they clearly have questioned the commercial reasonableness of the sales, and we regard that as sufficient to raise the issue as to the manner in which the Bank should have proceeded and the extent of any further relief available to it.
For the proposition that a party which has sold collateral in violation of the Uniform Commercial Code is not entitled to a deficiency judgment, the Simpsons and Owens correctly cite First State Bank of Morrilton v. Hallett, 291 Ark. 37, 722 S.W.2d 555 (1987). In that case, the creditor had not sent the debtor notice of the time and place of the sale of collateral, as required by Ark. Stat. Ann. § 85-9-504(3) (Supp. 1985), the governing section of the Uniform Commercial Code, now codified as Ark.Code Ann. § 4-9-504(3) (1987). This Court held that the violation absolutely barred a deficiency judgment.
A line of cases represented by Norton v. National Bank of Commerce, 240 Ark. 143, 398 S.W.2d 538 (1966), constructed a presumption that the collateral was worth at least the amount of the debt, thus placing on the creditor the burden of proving the amount which should reasonably have been obtained through a sale conducted according to law and allowing a deficiency judgment for the remaining debt less the amount which could reasonably have been obtained in a sale according to law. That line of cases was thus overruled by the decision in the Hallett case absolutely barring a deficiency judgment.
In a plain Uniform Commercial Code case, the Hallett rule is simple to apply. The problem with it here is that the remedies of the Bank with respect to the real estate mortgage are not governed by the Code. On one hand it may be argued that no deficiency occurs until all of the collateral, both personalty and realty, has been disposed of. On the other hand, if the personalty subject to the Code provisions is disposed of first, any remainder of the debt owed which was secured by the personalty could be considered a deficiency. The only provision of the Code purporting to deal with this situation is Ark. Code Ann. § 4-9-501(4) (1987) which provides:
If the security agreement covers both real and personal property, the secured party may proceed under this part as to the personal property or he may proceed as to both the real and the personal property in accordance with his rights and remedies in respect of the real property in which case the provisions of this part do not apply.
This section is an apparent attempt by the drafters of the Code to require creditors to proceed either pursuant to the Code or pursuant to the equitable foreclosure laws and avoid any combination. It simply does not succeed in a case like this, and it does not answer the question posed here. The Bank proceeded against the personalty first but did so extrajudicially. It now seeks to foreclose against the real property, but the amount of the debt it claims is established as a result of the sale of the personalty.
It has been suggested that when the action brought is solely to foreclose a real estate mortgage, the Code provisions are disregarded. See Bank of Chenoa v. Bagby, 467 N.E.2d 596 (Ill. App. 1984). It has also been held that, in a situation like the one before us now, the creditor’s commercially unreasonable sale of personalty precludes any action to foreclose a mortgage securing the same debt. United States v. Kennedy, 256 Ga. 345, 348 S.E.2d 636 (1986).
Neither of these solutions is satisfactory. The real estate mortgage is not governed by Uniform Commercial Code provisions, and there is no reason the Bank should lose altogether the security of the mortgage for having violated the Code with respect to sale of the personalty. However, the sale of the personalty is governed by the Code, and the Bank should not be allowed to sell the personalty in violation of the Code and thus establish the amount of the remainder of the debt against the real estate. While that may not technically be the same as collecting the sort of deficiency judgment we outlawed in the Hallett case, the effect is the same, especially if a deficiency judgment were awarded after foreclosure against the real estate. The amount of any such deficiency judgment would be directly affected by the amount received by the lender in the sale of the personalty pledged as collateral for the same loan.
The best solution we have found is the one adopted in Bank of Hawaii v. Davis Radio Sales & Service, 727 P.2d 419 (Haw. App. 1986). It was held that a creditor who had sold personalty collateral in violation of the Code could pursue the remainder of the debt by foreclosing against real property which also served as collateral but that the amount of the remaining debt would be no more than the difference between the reasonable value of the personalty at the time of the sale and amount of the obligation at the time the sale of the personalty occurred.
While this solution is reminiscent of the line of cases represented by Norton v. National Bank of Commerce, supra, which we overruled in the Hallett decision, we should make it clear that we contemplate no reversion to such holdings in garden variety Code cases.
We usually try to decide chancery cases without remanding them if the record permits. We cannot do that here, as the Bank must be given an opportunity to prove what would have been obtained from the sale of the logging equipment had the sale been conducted in accordance with the Code. If the Bank is able to prove that an amount is due on the note, the Chancellor may proceed with the mortgage foreclosure, and we see no reason to bar a personal deficiency judgment against Delton and Darlene Simpson and Leatha Simpson if one would be available under the law governing real estate foreclosures. There can be no deficiency judgment against Gee Owens, as his only obligation was on the note, and the Hallett decision bars such a judgment against him.
We cannot tell from the record why the Chancellor provided for post-judgment interest to accrue at 10% rather than the 10.5 % specified in the note and sought in the Bank’s complaint. See Ark. Code Ann. § 16-65-114(a) (1987) which provides that interest on a judgment will be 10 % or the amount “provided by the contract, whichever is greater.” We will leave that matter open for decision on remand.
We affirm the Chancellor’s decision denying the Simpsons’ and Owens’ claims of the tort of outrage and lender liability due to bad faith. These claims, seeking compensatory and punitive damages were based on testimony that the Bank had agreed to hold off collecting on the note until Delton Simpson received a workers’ compensation disability payment which he could use to reduce the debt. There was evidence that the Bank was attempting to work out the problem of nonTpayment with the Simpsons and had even agreed to allow them to sell some of the logging equipment themselves to help pay off the loan. The evidence did not support an allegation of “bad faith” or the tort of outrage.
One of the cases cited as the basis of the counter-claim is Deason v. Farmers & Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989). Just as in the Deason case, we find the evidence here depicting the Bank’s conduct as being in bad faith or outrageous falls far short of the conduct contemplated in Counce v. M.B.M. Co., 266 Ark. 1064, 597 S.W.2d 92 (1980), in which we recognized the tort.
All that remains is the question whether it was proper for the Bank to reduce the amount to be applied to the refinancing note from the proceeds of the sales of the logging equipment by applying a portion of them to the Simpsons’ other note. Although the Court’s holding on this issue was apparently based on Ark. Code Ann. § 4-9-504(1)(b) (1987), the statute was not mentioned in the Court’s order. The issue was raised by the Simpsons and Owens in a post-trial brief. They claimed, as a part of their lender bad faith argument, that it was improper for the Bank not to credit the amount received from the sales fully to the note for which the logging equipment was pledged as collateral. In its responding post-trial brief, the Bank did not specifically address that issue. We can find nothing in the record showing that the Bank argued to the Court that it should have been permitted to apply the sale proceeds to Delton and Darlene Simpson’s other note because of language in the refinancing note security agreement permitting it. The argument is raised for the first time on appeal, and we decline to address it. Helm v. Mid-America Indust., Inc., 301 Ark. 521, 785 S.W.2d 209 (1990); Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980).
The decision of the trial Court is affirmed in part and reversed in part on appeal, affirmed in part and reversed in part on cross-appeal, and remanded.
Glaze, J., concurs.
Brown, J., concurring in part and dissenting in part.
Dudley, J., not participating. | [
-14,
104,
-111,
108,
-118,
32,
40,
-54,
67,
49,
55,
85,
-1,
-58,
20,
109,
-28,
125,
117,
104,
21,
-78,
46,
99,
-46,
-109,
-79,
85,
-95,
127,
-28,
-97,
76,
48,
-56,
93,
98,
2,
-27,
84,
14,
-125,
25,
101,
-39,
66,
48,
43,
64,
8,
1,
-99,
-13,
47,
-67,
-50,
72,
46,
107,
57,
-16,
-72,
-69,
-99,
127,
4,
-109,
37,
-88,
99,
-8,
14,
-112,
57,
1,
-24,
118,
38,
-58,
84,
73,
-65,
8,
98,
102,
0,
97,
-3,
-8,
-120,
39,
-9,
-97,
38,
-45,
88,
3,
38,
-65,
-99,
125,
5,
20,
-2,
-26,
-115,
28,
108,
23,
-34,
-42,
-77,
-123,
120,
-104,
11,
-10,
-93,
32,
113,
-50,
-88,
93,
38,
48,
27,
-98,
-7
] |
Robert H. Dudley, Justice.
The trial court found that the appellant-plaintiffs, who were purchasers of real estate, did not have a claim for misrepresentation, fraudulent concealment, or outrage and granted summary judgment for the appellee-defendants. We affirm the decision.
The facts, reviewed most favorably to appellants, are summarized as follows. Five men regularly drank coffee together at Jake’s Restaurant in Springdale. Early one morning a real estate agent phoned Wayne Scoggins, one of the five, and said he had a real estate listing which might interest Scoggins. Scoggins replied, “Why don’t you meet me down at Jake’s.” The real estate agent and Scoggins met in the presence of the other four regular coffee drinkers. Scoggins looked at the listing and said, “I’ll buy it.” The other four said, “We’ll buy it with you.” All five signed an offer and acceptance on March 23,1987. The purchase price was $125,000.00.
The real estate, on Highway 68 West in Springdale, had been used as a Gulf Oil service station and a six-bay car wash. Although all of the equipment was still in place, the five buyers did not intend to operate either the service station or the car wash. Instead, they intended to resell the property, or tear down the improvements and build an office building. Due to complications not material to this opinion, the transaction was not closed until May 10, 1988.
After May 10, the five owners held the property for resale. One of the five showed the property, without results, to two prospective purchasers. About the same time, probably September 1988, Scoggins was watching a newscast on commercial television and learned there was to be a new federal Environmental Protection Agency regulation that would affect service stations. On October 27,1988, Scoggins received from the Arkansas Department of Pollution Control and Ecology a “Notification of Underground Storage Tanks” form. It required the owner of underground tanks to give his name and address and the location of the tanks, but did not disclose the details of the federal regulation. Scoggins did not respond to the notice.
On November 8,1988, Scoggins contacted Gene Baskin, one of the plaintiff-appellants in this case, and told him about the property. Baskins owned a used car lot, Economy Motors, had previously operated service stations, and was looking for a service station/convenience store/car wash combination business. Scoggins said the five were asking $200,000.00 for the property but would take $180,000.00.
Baskins was familiar with the property. He and his wife, appellant-plaintiff Stephanie Baskins, immediately went to the property and looked at it. Baskins later met Scoggins and Sam Mathias, another one of the five owners, to go over the property. Mathias made no statement. Scoggins made all of the representations. Those representations, made during the negotiations, were as follows:
[From the deposition of Gene Baskins]:
A. Mr. Scoggins showed me that, and then he asked me about the condition of the station and he told me and I said, “What about the tanks?” And he said they were put in in ‘79, they were relatively new and there shouldn’t be any problem with it at all.
[From the deposition of Stephanie Baskins]:
A. I asked Mr. Scoggins what [it] would take to open up the gas station and the car wash.
(Thereupon, there was a brief interruption in the proceedings.)
CONTINUATION BY MR. ROY:
Q. Go ahead.
A. And Mr. Scoggins said it wouldn’t take a lot to open it.
A. He said that there should be no problem with the tanks.
Q. Now when is this? Is this at Taylor’s office?
A. No, sir. That statement was made in Economy Motors.
Q. Was that the same time when he said the tanks were put in in ‘79?
A. Was either the same time or during the course of the day.
Q. He said there’d be no problem with the tanks?
A. There would be no problem opening the gas station. And Mr. Scoggins was well aware of why we purchased that and we — not only myself but my husband — we’ve told him on several occasions that we wanted to open it as a gas station and reopen the car wash.
On November 9, 1988, the Baskins and the five owners signed an offer and acceptance for $175,000.00. On November 30, 1988, the transaction was closed and a deed was given. Immediately after the closing Scoggins said, “All you have to do is pump the fuel in and go to work.”
The Baskins subsequently learned about the federal regulation governing gasoline storage tanks. The regulation is to be phased in over an eight-year period commencing on October 26, 1990, see 40 C.F.R. § 280.91(d), and ending on December 22, 1998. See section 280.21. By the later date, corrosion as well as spill and overflow prevention equipment must be installed.
On January 19,1989, the Baskins filed suit against the five sellers and their wives. They alleged misrepresentation, fraudulent concealment, and the tort of outrage, and asked damages in excess of $500,000.00. After interrogatories had been answered and depositions taken, the trial court ruled the Baskins did not have a claim and granted summary judgment. The Baskins do not appeal that part of the summary judgment dismissing (1) the five wives from all counts of the complaint; (2) the five husbands from the claim of outrage; or (3) all parties from the claim for punitive damages. The sole issue appealed is whether the trial court erred by dismissing Scoggins and the other four sellers on the claim for deceit.
The elements of the cause of action for deceit are as follows:
(1) A false representation made by the defendant; ordinarily, one of fact;
(2) The defendant knows that the representation is false or he does not have a sufficient basis of information to make it; that is, scienter;
(3) The defendant intends to induce the plaintiff to act or to refrain from acting in reliance upon the misrepresentation;
(4) The plaintiff justifiably relies upon the representation;
(5) The plaintiff suffers damage as a result of the reliance.
See M.F.A. Insurance Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981).
The Baskins contend that there are facts or inferences which tend to show there is a material dispute of fact as to all five elements. We need examine only the first element, the require ment of a false representation, because there are no facts or inferences which tend to show a dispute of fact about that element. The Baskins argue that there was an express misrepresentation, or positive deceit, about the condition of the tanks. The argument is without merit. Gene Baskins admitted that the tanks were the age represented and that they did not leak. The Baskins additionally argue that the statement, “all you have to do is pump the fuel in and go to work” was also an express misrepresentation of fact. The statement cannot serve as the basis of a deceitful representation because it was made after the transaction was closed. Prosser points out, however, that the false representation element is today construed by many courts to include (1) concealment of material information and (2) non-disclosure of certain pertinent information. See Prosser, Law of Torts § 106 (4th ed. 1971).
The Baskins contend that the appellees actively concealed the federal regulation. We could dispose of the issue by saying that Scoggins only knew that some regulation existed, but he did not know the details of the regulation. However, we choose not to summarily dispose of the issue. The Restatement of Torts (Second) § 550 discusses fraudulent concealment as follows:
One party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information is subject to the same liability to the other, for pecuniary loss as though he had stated the nonexistence of the matter that the other was thus prevented from discovering.
Here, there is no proof or indication that Scoggins or the four other sellers intentionally prevented the Baskins from acquiring a copy of, or seeing, or learning about the federal regulation. There is no proof or inference that by failing to fill out or return the Arkansas Department of Pollution Control and Ecology form Scoggins fraudulently concealed the federal regulation from the Baskins. Thus, Scoggins could not be guilty of concealment of material information.
The Baskins also argue that the sellers had a duty to disclose the federal environmental regulation, and that their failure to do so constituted non-disclosure. Prosser observes that “the law appears to be working toward the ultimate conclusion that full disclosure of all material facts must be made whenever elementary fair conduct demands it.” Id. at 698. Section 551 of the Restatement of Torts (Second) encompasses much of Prosser’s discussion of the duty to disclose certain information in a business transaction. However, we hold that the duty to disclose does not arise where the “fact” that is not disclosed is the existence of a federal regulation, because both parties have equal access to the knowledge.
In summation, there was no false representation either (1) expressly, or (2) by concealment of material information, or (3) by non-disclosure, and the trial court correctly granted summary judgment.
Affirmed. | [
-15,
-2,
-8,
-52,
28,
-32,
120,
-66,
91,
-88,
-25,
83,
-23,
-62,
21,
33,
-26,
89,
116,
121,
-107,
-94,
3,
34,
-46,
-77,
-53,
65,
-80,
77,
-28,
86,
76,
36,
-62,
85,
-26,
-54,
-35,
28,
-82,
-95,
-101,
100,
127,
18,
52,
59,
84,
79,
81,
-115,
-13,
44,
17,
-53,
105,
44,
-21,
47,
65,
-8,
24,
-107,
-1,
22,
34,
117,
-118,
-95,
-6,
8,
-104,
113,
0,
-88,
83,
-90,
6,
116,
13,
-117,
12,
38,
99,
34,
1,
-21,
-28,
-104,
47,
-1,
-115,
-89,
-55,
88,
35,
97,
-65,
31,
122,
0,
4,
-4,
-6,
-43,
89,
124,
7,
-114,
-106,
-93,
45,
112,
-102,
9,
-49,
39,
16,
112,
-51,
-26,
92,
87,
54,
31,
15,
-73
] |
Jack Holt, Jr., Chief Justice.
The narrow issue on this appeal is whether Ark. Const. art. 19 § 12 requires public access to certain information concerning motor fuel taxes.
On March 30, 1988, appellant, Vic Snyder, attempted to inspect corporate motor fuel tax records that included the monthly “shrinkage allowance” given to motor fuel distributors. The appellee, Tommy Bailey, who is the manager of the Motor Fuel Tax Section of the Department of Finance and Administration (DFA), denied Snyder access to these records on the basis of Ark. Code Ann. § 26-18-303(a), (c) (1987), which prohibits disclosure of corporate and individual tax returns and information.
Snyder brought suit against the appellees, Mr. Bailey and Mahlon Martin, Director of the DFA, seeking declaratory and injunctive relief and claiming that section 26-18-303 conflicts with Ark. Const. art. 19 § 12, which requires publication of all receipts and expenditures of public money. Both sides made motions for summary judgment. The trial court granted the appellees’ motion on the ground that the shrinkage allowances provided to motor fuel distributors were not “expenditures” within the meaning of art. 19 § 12, and found that Snyder was not entitled to injunctive relief since he had not demonstrated irreparable harm.
Snyder’s appeal is limited to the denial of declaratory relief in which he requested that the statute be declared unconstitutional. We affirm the chancellor.
Section 26-18-303, which operated to bar Snyder from inspection of the motor fuel tax records, states in pertinent part:
(a)(1) The director is the official custodian of all records and files required by any state tax law to be filed with the director and is required to take all steps necessary to maintain their confidentiality.
(2) (A) Except as otherwise provided by this chapter, the records and files of the director concerning the administration of any state tax law are confidential and privileged. These records and files and any information obtained from these records or files or from any examination or inspection of the premises or property of any taxpayer shall not be divulged or disclosed by the director or any other person who may have obtained these records and files.
(B) It is the specific intent of this chapter that all tax returns, audit reports, and information pertaining to any tax returns, whether filed by individuals, corporations, partnerships, or fiduciaries, shall not be subject to the provisions of 25-19-101 et seq.
* * * *
(c) The provisions of this section shall be strictly interpreted and shall not permit any other disclosure of tax information concerning a taxpayer, whether the taxpayer is an individual, a corporation, a partnership, or a fiduciary, that is contained in the records and files of the Director of the Department of Finance and Administration relating to income tax or any other state tax administered under this chapter. (Emphasis added.)
Snyder contends that this statute directly conflicts with art. 19 §12, which provides:
An accurate and detailed statement of the receipts and expenditures of the public money, the several amounts paid, to whom and on what account, shall, from time to time be published as may be prescribed by law.
We agree with the trial court that the term “expenditures,” contained in the above constitutional provision, does not include the shrinkage allowance permitted to the motor fuel distributors.
The allowance is provided by our Motor Fuels Tax Law, codified at Ark. Code Ann. § 26-55-201 through 1004 (1987). In accordance with section 26-55-230, which is similar to the procedure utilized in a number of other states, a distributor reports the total number of gallons of motor fuel received into the state during the previous calendar month to the Motor Fuel Section of the DFA. From the amount of gasoline fuel received, the distributor deducts the number of gallons of fuel sold, as provided in section 26-55-230(a)(1). After these deductions have been subtracted, the distributor is allowed to deduct an additional 3 % of the first 1,000,000 gross taxable gallons to cover “evaporation, shrinkage, and the losses resulting from unknown causes, regardless of the amount thereof, and the cost of collection.” This number is then deducted from the gross taxable gallons, and the remainder is multiplied by the appropriate tax rate to determine the motor fuel tax to be remitted by the distributor.
In examining the Motor Fuels Tax Law, we observe that this allowance is a deduction and, in fact, is labelled as such in the Computation and Payment of Tax statute, section 26-55-230. The fuel tax is placed on the product in the hands of the distributors, not the retailers, and is remitted to the state after the distributors have taken their allowed deductions, including the 3 % shrinkage allowance. Simply put, the statute merely operates to reduce the amount of “property,” in the hands of the distributor, to be taxed and has nothing to do with collection of taxes from dealers.
“Expenditures” is not defined by our constitution, nor in our statutes or case law. Its broad meaning is any laying out or disbursement of money. See 35 C.J.S. Expenditure (1957). This implies the spending of money already in the state’s hands rather than the deduction of monies never counted as part of the state’s budget.
Although Snyder argues that this holding would exalt form over substance, we have said that where the language employed in the constitution is plain and unambiguous, every word should be expounded in its plain, obvious, and common acceptation. Merritt v. Jones, 259 Ark. 380, 533 S.W.2d 497 (1976); Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.E.2d 426 (1983). Furthermore, it has long been the rule that all legislation is presumed to be constitutionally valid, and all doubt is to be resolved in favor of constitutionality. Fisher v. Perroni, 299 Ark. 227, 771 S.W.2d 766 (1989); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980).
We review chancery cases de novo on appeal and will not reverse a chancellor’s finding unless clearly erroneous. Killam v. Texas Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990). The chancellor’s finding that the deduction permitted by statute for “shrinkage allowance” was not an appropriation of public money within the framework of art. 19, § 12 was correct. It is merely a deduction, nothing more. Denial of Snyder’s motion for summary judgment, and the granting of the appellees’ motion, w. as proper. Summary judgment is proper when there is no genuine issue of material fact, as here, and when the moving party is entitled to judgment as a matter of law. Woods v. Hopmann Mach. Inc., 301 Ark. 134, 782 S.W.2d 363 (1990).
In a well-written dissent, the minority extrapolates various provisions of our Motor Fuels Tax Laws statutes and arrives at the conclusion that somehow, somewhere, fuel taxes are collected from the retailer. It may be true that these taxes are either passed on to, or perhaps ultimately collected from, other sources, after the distributor has paid the tax; however, the fact still remains that under our present code, the taxes are placed upon the product in the hands of the distributor and his records are protected under section 26-18-303. Furthermore, Ark. Code Ann. § 26-55-249 (1987), cited by the minority, is impliedly repealed by section 26-18-303.
Affirmed.
Hays, Glaze and Brown, JJ., dissent.
These provisions refer to the Freedom of Information Act. Section 25-19-105 (a) of the Act states that public records shall be open to inspection unless specifically excluded by the Act or “by laws specifically enacted to provide otherwise.”
At the time of our decision in Ragland v. Yeargan, 288 Ark. 281, 702 S.W.2d 23 (1986), section 26-18-303 prevented disclosure of individual tax returns and information only. There, we held that where the legislature fails to specify any records that are to be excluded from inspection, privacy yields to openness. As amended, section 26-18-303 now clearly provides that both individual and corporate tax information is to be protected and there is thus no question, here, of conflict with the FOIA and a discussion of this section of the code is not necessary for our decision. | [
-76,
-23,
-4,
44,
42,
-63,
26,
26,
65,
-125,
-92,
83,
-17,
74,
4,
63,
-9,
31,
117,
75,
-57,
-73,
51,
99,
-90,
-69,
-69,
-57,
125,
79,
-20,
-55,
12,
48,
-118,
-123,
70,
8,
-121,
92,
-50,
2,
-69,
72,
-39,
68,
52,
39,
118,
15,
49,
-108,
-29,
60,
-98,
67,
77,
44,
-37,
-94,
-48,
-79,
-88,
-97,
95,
22,
49,
84,
-72,
9,
-8,
59,
-120,
56,
0,
-24,
115,
-90,
-46,
-12,
107,
-119,
40,
104,
99,
19,
37,
-25,
-68,
-120,
38,
-37,
-99,
-89,
-16,
105,
1,
13,
-106,
-99,
121,
18,
14,
-2,
104,
-59,
95,
108,
-117,
-114,
-122,
-93,
1,
117,
12,
18,
-17,
-91,
16,
113,
-52,
-10,
94,
71,
54,
-101,
-58,
-44
] |
Per Curiam.
We grant appellant’s motion to supplement record and to revise briefs subject to the parties briefing the issues as to whether supplementation of record is proper in this case, and if so, how such additional record (and evidence introduced at the jury proceeding on March 28,1991) should affect the revocation decision now submitted in this appeal.
We deny appellant’s motion for review of appeal bond. | [
112,
109,
100,
-98,
-118,
32,
58,
-102,
-55,
-29,
119,
81,
-81,
90,
-108,
103,
-73,
47,
69,
121,
-41,
-77,
119,
-63,
-1,
-13,
-5,
85,
-11,
126,
-26,
22,
76,
116,
-118,
-107,
102,
-118,
-31,
20,
-114,
-123,
-103,
-19,
-103,
-30,
52,
35,
122,
15,
113,
86,
-93,
44,
22,
-58,
9,
44,
75,
1,
80,
-71,
-103,
15,
-7,
6,
-112,
84,
-68,
-52,
-48,
42,
28,
53,
1,
-24,
51,
-122,
-122,
84,
107,
-69,
36,
98,
-30,
17,
84,
-19,
-112,
-56,
55,
90,
-115,
39,
-45,
24,
73,
113,
-122,
-3,
115,
-12,
39,
126,
-19,
-51,
93,
44,
15,
-50,
-74,
-93,
95,
120,
-120,
67,
-29,
17,
16,
116,
-51,
-30,
92,
-46,
19,
-109,
-50,
-78
] |
Tom Glaze, Justice.
Appellant was convicted of attempted capital murder and aggravated assault steming from a shootout with Fort Smith police officers. He argues two points for reversal, but neither has merit. Therefore, we affirm.
Upon reporting for duty on December 23,1988, Officer Ron Lockhart was briefed on an armed robbery that had occurred earlier that night. Lockhart was given a detailed description of the suspect and his pickup truck, and the report provided the vehicle bore Oklahoma tags containing the prefix, L-E-F. Later the same night, Officers Lockhart and Rowlett were on patrol when they received a radio dispatch concerning another robbery. The perpetrator of the second robbery bore the same or similar description of the suspect described in the earlier briefing. The officers drove to a place near Interstate 540 where they thought the suspect might proceed on his way to Oklahoma. The officers’ hunch was validated when they subsequently located and stopped the appellant in his pickup truck. According to the officers, the appellant did not respond to requests that he put his hands where the officers could see them, but instead began firing at the officers with a handgun. Appellant subsequently sped off in his vehicle, but was later apprehended when he wrecked his truck and fled on foot.
At trial, appellant moved to exclude any reference by the state to the armed robberies for which appellant had been stopped. He argues the robberies were not relevant to the prosecution for attempted capital murder, and therefore, would be highly prejudicial.
In a prior appeal by this same appellant, we upheld the trial court’s ruling which allowed the state to join the two aggravated robbery charges against him because both robberies were of the same character, or were of a single scheme or plan. See Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990). Additionally, we stated that some of the state’s proof was pertinent to both robberies, and in order for the officers to explain why appellant was stopped, it was necessary to prove the earlier robbery. Brown, 304 Ark. at 100-101, 800 S.W.2d at 426.
Our court has repeatedly held that all the circumstances surrounding a particular crime may be shown, even if those circumstances would constitute a separate criminal act or acts, when the criminal acts are intermingled and contemporaneous with one another. Wilson v. State, 298 Ark. 608, 770 S.W.2d 123 (1989); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). In this instance, what led to the shooting between the appellant and the officers could not be explained without showing evidence surrounding the reported robberies. Otherwise, the jurors would be left to speculate as to why the appellant had been stopped by the officers and why the officers drew their weapons as they departed their vehicle. These facts were necessary for the jury to get a comprehensive picture of the events that surrounded and led to the attempted capital murder offense with which the appellant was charged. See Harris v. State, 239 Ark. 771, 394 S.W.2d 135 (1965).
In his second point for reversal, appellant claims the trial court erred when it sustained the state’s objection, thereby refusing to admit certain metal plates bearing bullet holes from a .45 caliber pistol and a 357 magnum pistol. The basis of appellant’s argument is that Officer Lockhart’s initial report reflected the appellant, using a .45 caliber weapon, first shot at Lockhart and hit the spotlight on Lockhart’s vehicle. Appellant argues that the testimony of his ballistics expert, Berwin Monroe, would show that a bullet from one of the officers’ .38 caliber weapons had actually struck the spotlight of the officers’ vehicle and therefore would support, at least inferentially, appellant’s claim that he had never fired his .45 at the officers. Appellant’s argument fails for two reasons. First, Lockhart, at trial, acknowledged that he probably shot and hit his car’s spotlight during the exchange of gun fire with appellant. Second, appellant’s own expert stated that the metal plates proffered by appellant would be of no help in determining the caliber of bullet that actually produced the hole in the spotlight of the officers’ vehicle. Considering these circumstances, we cannot say the trial court abused its discretion in excluding the metal plates proffered by the appellant. White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990).
While appellant urges no further reasons for reversal, the state, on its own volition, argues the record fails to reveal that the trial court sentenced the appellant in compliance with the terms of A.R.Cr.P. Rule 36.4. The state concedes the appellant interposed no objection and did not otherwise preserve this issue on appeal. Accordingly, we need not discuss the point further. Phillips v. State, 304 Ark. 656, 801 S.W.2d 647 (1991).
We affirm.
We note that, effective January 1, 1991, the court reinstated Rule 37, in revised form. That revised rule provides, in pertinent part, that if an appeal was taken of the judgment of conviction, a petition, claiming post-conviction relief, must be filed in circuit court within 60 days of the date the mandate was issued by the appellate court. Rule 37.2(c). | [
16,
-21,
-32,
-66,
25,
96,
56,
60,
83,
-94,
108,
-109,
-83,
-55,
5,
121,
15,
87,
117,
73,
-10,
-73,
119,
121,
-14,
-77,
91,
-59,
51,
-53,
108,
-12,
91,
112,
-54,
89,
38,
12,
-89,
-36,
-114,
-123,
-23,
-16,
114,
0,
32,
42,
84,
15,
49,
-116,
-29,
42,
16,
-53,
-55,
44,
75,
-84,
97,
120,
-56,
13,
-98,
20,
-93,
32,
-100,
7,
80,
46,
-35,
49,
16,
120,
115,
-122,
-126,
116,
109,
-103,
-116,
106,
98,
35,
-80,
-52,
44,
-120,
46,
62,
-121,
-89,
-104,
16,
65,
45,
-105,
-99,
111,
20,
14,
-22,
115,
45,
91,
108,
39,
-33,
52,
-95,
-51,
104,
18,
83,
-53,
5,
48,
112,
-49,
-26,
92,
69,
116,
-5,
-58,
-46
] |
Donald L. Corbin, Justice.
The appellant was found guilty of possession of cocaine with intent to deliver and sentenced to five years imprisonment under Ark. Code Ann. § 5-64-401 (a)(1)(i) (1987) of the Uniform Controlled Substances Act. That section of the Act covers Schedule I or II controlled substances. On appeal, he claims the trial judge erred in stating he could not consider appellant’s request for probation. We agree with appellant’s contention and remand this case for the sole purpose of allowing the trial court to consider alternative sentencing provided under the Criminal Code, Ark. Code Ann. §§ 5-4-301 to -311 (1987 & Supp. 1989).
The state in this appeal fails to respond to the appellant’s argument except to say that appellant’s contention was not properly raised below, and therefore was not preserved for appellate review. We disagree. At the sentencing hearing, appellant’s counsel stated his position that the trial court had authority to place the appellant on probation. However, the trial court disagreed with counsel, adding that if probation was permitted under the law, it would consider probation. In view of this clear exchange between the trial court and appellant’s counsel, we believe appellant is entitled to have his argument decided on its merits.
To decide whether the trial court had authority to consider appellant’s request for probation, we must review the relevant history of the 1971 Uniform Controlled Substances Act, under which appellant was sentenced, and the 1975 Criminal Code, which provides in § 803 for sentencing in Code offenses and in § 1201 for considering criterion for suspended imposition of sentence or probation.
As already mentioned, appellant was sentenced under the Uniform Controlled Substances Act. In its original form, the 1971 Act provided imprisonment for up to fifteen years for the possession with intent to deliver Schedule I or II narcotic drugs, but it provided no special provision for probation or suspension for such an offense. See Article IV, § 1(a)(i)of Act 590 of 1971 [now codified and amended as section 5-64-401 (a)(1)(i)]. However, as previously mentioned, the 1975 Criminal Code provided for probation for offenses defined by the Code. And while offenses under the Controlled Substances Act were not defined under the Criminal Code, § 1202 of the Code [now section 5-4-302] provided as follows:
When a defendant who pleads or is found guilty of an offense defined by a statute not a part of the code is eligible for suspension or probation pursuant to that statute, the court may make any disposition permitted by that statute.
Thus, because the Controlled Substances Act provided no probation or suspension alternative for the offense of possession of a narcotic drug with intent to deliver (or for the delivery or manufacture of a narcotic drug), the sentencing, probation and suspension provisions of the Code were made applicable to such an offense under section 1202. However, amendments to the 1971 Uniform Controlled Substances Act and the 1975 Criminal Code have since occurred. Therefore, it is important to review those changes to be sure the appellant in this case is entitled to the sentencing and disposition provisions of the Code.
In considering first the Code, we note that the General Assembly amended it by enacting Act 409 of 1983 [Ark. Code Ann. § 5-4-104(e)(1) (1987 & Supp. 1989)] in order to stiffen sentences by eliminating probation and suspension of imposition of sentences in specified crimes, viz., capital murder, treason, a Class Y felony offense or murder in the second degree. The Code previously excepted only defendants convicted of capital murder from receiving probation or suspension. Section 2 of Act 409 [Ark. Code Ann. § 5-4-401 (1987)] provides a defendant convicted of a Class Y felony must receive a determinate sentence of not less than ten years and not more than forty years.
Next, we mention Act 669 of 1985 where the General Assembly amended the Uniform Controlled Substances Act. Act 669 somewhat redefined the offenses of manufacturing, delivery and possession of a controlled substance with intent to deliver under Article IV, section 1(a)(1)(i) [section 5-64-401(a)(1)(i)], but it further provided that these offenses are Class Y felonies for all purposes other than disposition. When enacting Act 669, the General Assembly presumably was aware that the Code sentencing and disposition provisions, as amended by Act 409 of 1983, had excluded the possibility of probation in Class Y felony offenses. Accordingly, by its clear language in Act 669, the General Assembly, while classifying the offense of possession of a narcotic drug with intent to deliver (as well as manufacture and delivery of such drugs) as a Class Y crime, directed that such classification should not be used when considering and applying alternative dispositions.
In sum, we believe a fair construction of the foregoing provisions and amendatory acts of the Uniform Controlled Substances Act and the Criminal Code reflect that, in the present case, the trial judge could have considered appellant’s request for probation. We quickly add, however, that the General Assembly has recently passed Act 608 of 1991 which further amends section 803 [section 5-4-104] and section 1201 [section 5-4-301] of the Code. Briefly, Act 608 amends section 5-4-104(e) (1) to add that a defendant convicted of a drug-related offense under the Uniform Controlled Substances Act is not eligible for probation, and it amends section 5-4-301 (a)(1) to provide that a defendant convicted of a drug-related offense under the Uniform Controlled Substances Act is not entitled to a suspended imposition of sentence or probation except to the extent that probation is otherwise permitted under that Act. Without discussing Act 608 further, we note the General Assembly enacted this law so as to resolve the confusion as to what forms of punishment are permitted or prohibited in cases such as the drug-related offense we have addressed in this appeal.
For the reasons given above, we reverse and remand so the trial court may consider appellant’s request for probation.
Reversed and remanded.
Holt, C.J., Newbern, and Brown, JJ., dissent.
Article IV, § 7 of Act 590 of 1971 [Ark. Code Ann. § 5-64-407 (1987) ] does provide for a probationary period for the offense of possession of a controlled substance, but it fails to mention other drug offenses. | [
48,
-22,
-35,
60,
26,
64,
58,
16,
91,
-13,
-12,
81,
-81,
-26,
-124,
57,
-93,
123,
116,
121,
-47,
-73,
119,
97,
-21,
-13,
58,
-41,
51,
79,
-20,
-108,
12,
48,
-118,
-11,
-26,
64,
67,
90,
-18,
5,
-101,
109,
80,
66,
32,
99,
26,
15,
33,
-113,
-93,
47,
24,
-54,
73,
40,
9,
108,
-40,
-72,
-104,
15,
-19,
36,
-93,
-92,
-103,
13,
-16,
127,
-36,
17,
1,
-24,
115,
-90,
-126,
84,
123,
-103,
36,
96,
98,
-127,
77,
-51,
-72,
-120,
54,
-82,
-115,
-89,
-40,
81,
72,
68,
-106,
-97,
110,
84,
-116,
-2,
123,
13,
85,
108,
5,
-53,
-76,
-79,
111,
97,
-44,
-16,
-21,
35,
48,
101,
-51,
-26,
84,
86,
113,
-101,
-58,
-42
] |
Jack Holt, Jr., Chief Justice.
The appellant, Donnie Hicks, was convicted of both leaving the scene of an accident involving death and manslaughter. He was sentenced to nine years and twenty years imprisonment, respectively, and fined $10,000 for each offense.
Hicks’ first argument on appeal is that he was denied a speedy trial. He contends the trial court erred in continuing his case due to a crowded court docket without a showing of exceptional circumstances and, furthermore, that such circumstances were not stated in an order continuing the case or on the docket prior to the expiration of the speedy trial period as required by Ark. R. Crim. P. 28.3. Since we find merit in this argument, we decline to address Hicks’ remaining arguments concerning insufficiency of the evidence and the denial of his motion in limine.
The case is reversed and dismissed, based on the denial of Hicks’ right to a speedy trial.
On April 1, 1989, Hicks was involved in an automobile accident in which the driver of the other vehicle died at the scene. Hicks walked away from the accident and was arrested for this offense later that day. He was subsequently incarcerated and charged with violations of Ark. Code Ann. §§ 27-53-101 and 5-10-104 (1987). It is agreed, by all parties, that the time for speedy trial purposes began running on April 1,1989, the date of Hicks’ arrest. See Ark. R. Crim. P. 28.2(a).
The record provides the following scenario:
March 14, 1990. Trial was scheduled; however, the trial court discovered a scheduling conflict on March 13, 1990, and notified the State that the case would need to be continued. The only reference, found in the record, concerning the trial court’s decision to continue Hicks’ case is the following letter, written by Hicks’ attorney and addressed to the Prosecutor, Jeff Rogers. It is dated March 13, 1990.
Dear Jeff:
This letter shall serve to confirm our telephonic conversation on this date that the above captioned matter has been continued from Wednesday, March 14,1990, and will be rescheduled to a future date. Please accept this letter as Defendant’s request that he and his attorneys be provided with as much advance notice of the rescheduled date as possible.
The record contains no order or docket entry reflecting the continuance at the time of the trial court’s decision.
March 21, 1990. An entry was made on the trial court’s docket sheet indicating: “Order setting trial - Tuesday, April 10, 1990 @ 9:30.”
March 23,1990. The State filed a motion for excluded time period in which it requested that the time from March 14, 1990, to April 10, 1990, be excluded for speedy trial purposes due to a “congested trial calendar.”
March 27, 1990. A second entry was added to the court docket which reads: “Due to the crowded court trial docket it was necessary to move to April 10, 1990 for trial. The period from March 14,1990 to 4-10-90 shall be an excluded period for speedy trial rule.”
April 2,1990. Hicks filed his response to the State’s motion of March 23, 1990, along with a motion to dismiss, noting the State’s failure to prosecute within one year from the date of arrest and the trial court’s failure to follow the requirements of Rules 28.3(b) and (i).
April 10,1990. The trial court responded by entering its first formal order enunciating the following reasons for continuing the trial:
Before the Court is a Motion to Exclude Time filed on behalf of the State of Arkansas in the captioned matter. By order dated December 22,1989, the captioned matter was scheduled for trial on March 14,1990. On March 13,1990, this matter was continued from that trial setting because of a scheduling conflict. The Court set in excess of one hundred cases for trial in its March, 1990, trial term. After two plea days and docket calls, the number of cases for trial was reduced to twenty-one.
The Court scheduled the matter of State of Arkansas vs. Charles A. Moore, No. CR-89-147, for trial on March 13, 1990. All trials are scheduled for a one day to complete. Because the Moore trial required two days to complete, this matter was continued from its setting. Both parties had announced ready for trial previously. However, neither party objected to the continuance.
The Court was unable to reschedule this matter for trial prior to April 10, 1990. Being within a Judicial Circuit comprised of six counties and having jurisdiction over all felony criminal matters in the Circuit, the Court must, travel to each county on a monthly basis to tend to pending cases. It is well established that the Court travels the Circuit the last week of each month for theses (sic) purposes and such occurred the last week of March 1990.
Additionally, the Court has scheduled trials in Calhoun County, Arkansas for the period of April 2-9, 1990. This matter could not have been rescheduled prior to April 10, 1990.
Based upon the foregoing the Court finds the motion to Exclude Time is well taken and should be formally granted pursuant to Arkansas Rules of Criminal Procedure Rule 28.3 (b) and (h). The Court finds that these factors constitute good cause for exclusion of time.
Therefore, the period of time for March 14, 1990 through April 10, 1990 shall be exclude (sic) time for purposes of speedy trial calculations.
IT IS SO ORDERED.
It is undisputed that, under Ark. R. Crim. P. 28.1(c), the State was required to bring Hicks to trial by April 1, 1990, excluding only those periods of delay as authorized by Rule 28.3. Hicks was tried nine days after the required one-year period had elapsed, and the burden is on the State to show good cause for untimely delay. Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987).
The law is well settled that congestion of the trial docket, alone, is not just cause for breaching the speedy trial rule. See Harkness v. Harrison, 266 Ark. 59, 585 S.W.2d 10 (1979); Novak v. State, supra; Rule 28.3(b). The State maintains, however, that the trial court’s order of April 10, 1990, reflects “exceptional circumstances” justifying exclusion of time under Rule 28.3. That rule states in pertinent part:
The following periods shall be excluded in computing the time for trial:
* * *
(b) The period of delay resulting from congestion of the trial docket when the delay is attributable to exceptional circumstances. When such a delay results, the court shall state the exceptional circumstances in its order continuing the case.
* * * *
(i) All excluded periods shall be set forth by the court in a written order or docket entry. . . .
Although not expressly stated in the rule, we have said that a trial court should enter written orders or make docket notations at the time continuances are granted to detail the reasons for the continuances and to specify, to a day certain, the time covered by such excluded periods (emphasis added). McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990); Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). In order to provide any impetus behind Rule 28.3, we must adhere to this language; otherwise, there is no need for the rule. Here, the trial court waited eight days after its decision to continue the case to note the continuance in the docket, which entry reflects only that the case would be continued to April 10. Another docket entry was made on March 27, yet, again, the notation simply mentions a crowded docket without further explanation. Compliance with Rule 28.3 occurred only in the trial court’s order of April 10, the rescheduled trial date, which was, as we stated, nine days past the speedy trial period. We find the trial court’s order to be untimely and contrary to the intent of Rules 28.3(b) and (i).
Furthermore, notwithstanding the fact that the order was untimely, the circumstances enumerated therein were not “exceptional.” No explanation was offered as to why the case could not have been tried during the week immediately following the Moore trial, and before the last week in the month when the trial court was required to travel to other counties.
Lastly, the State is incorrect in implying that Hicks’ failure to ask for a speedy trial, and his delay in responding to the State’s motion for excluded time until the day after the time for speedy trial had expired, constituted a waiver of his right to a speedy trial. Rule 28.1(f) states that the defendant’s failure to move for a dismissal only constitutes a waiver if not made “prior to a plea of guilty or trial. . .” Hicks’ motion was made well in advance of his trial and was thus timely raised. See Duncan v. State, 294 Ark. 105, 740 S.W.2d 923 (1987).
We also note that the letter from Hicks’ attorney, acknowledging the trial’s continuance, did not operate to Hicks’ detriment. We have said that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to count as excluded time attributable to the defendant. See McConaughy v. State, supra; Rule 28.3(i). Here, however, Hicks’ attorney did not consent to a trial date past the speedy trial period, but merely asked to be notified as soon as the new date was determined. There is no indication in the record that defense counsel knew, when he consented to the continuance, that the trial would be continued past the required time period, and we cannot view the letter as a “delaying act.”
Based on the foregoing reasons, we reverse the jury’s verdicts and dismiss the case.
Hays, Glaze and Corbin, JJ., dissent. | [
80,
-22,
-11,
-66,
57,
97,
27,
-102,
115,
-125,
96,
-45,
-89,
-57,
5,
123,
-37,
91,
117,
105,
-11,
-73,
119,
113,
-22,
-13,
97,
-57,
115,
107,
-82,
-68,
76,
112,
-54,
85,
70,
104,
71,
-44,
-114,
0,
-103,
100,
91,
26,
40,
120,
82,
7,
33,
-114,
-93,
46,
28,
-50,
-23,
40,
91,
-84,
-56,
17,
-55,
-113,
-17,
4,
-95,
-92,
-65,
4,
120,
63,
-100,
49,
0,
120,
115,
-90,
-126,
116,
107,
-103,
12,
98,
99,
1,
28,
-20,
-68,
40,
6,
62,
15,
-90,
-103,
1,
75,
13,
-74,
-99,
106,
22,
10,
-2,
125,
68,
81,
-20,
2,
-50,
-80,
-79,
-113,
12,
6,
75,
-5,
1,
52,
117,
-51,
-26,
92,
71,
89,
-37,
-98,
-106
] |
Donald L. Corbin, Justice.
The sole issue raised in this appeal is whether the trial court erred in granting full faith and credit to the default judgment entered by a Virginia court in favor of appellee, Brokers Securities, Inc., against appellant, Michael C. Kricfalusi. We find no error and affirm.
Although under the full faith and credit clause of the United States Constitution, a foreign judgment is as conclusive on collateral attack as a domestic judgment would be, exceptions to this rule exist where there is either a defense of fraud in the procurement of the judgment or a want of jurisdiction in the rendering court. Elliott, Ex’x v. Hardcastle, 271 Ark. 90, 607 S.W.2d 381 (1980); Purser v. Corpus Christi State Nat’l Bank, 256 Ark. 452, 508 S.W.2d 549 (1974); Phillips v. Phillips, 224 Ark. 225, 272 S.W.2d 433 (1954); Cella v. Cella, 12 Ark. App. 156, 671 S.W.2d 764 (1984). Appellant’s challenge to the trial court’s granting full faith and credit is based on the asserted absence of personal jurisdiction on the part of the Virginia court. Therefore, we will consider whether the service of notice was defective.
Appellant contends that appellee did not satisfy the due process requirement that service be reasonably calculated to reach the party to be served. Regarding the service of process, the Virginia court in its order of default judgment stated:
WHEREUPON, the Court, having examined the record herein and the evidence ore terms and noting that service was made on the defendant pursuant to Sections 8.01-328.1 and 8.01-329 of the Code of Virginia as amended (Virginia’s Long Arm Statute),. . . .
The record includes only this order of the Virginia court, the pleadings made to the Arkansas court concerning the foreign judgment, affidavits given by appellant and by appellee’s president, and the filings required for appeal. For this reason we have been forced to look at the affidavits to discern the relevant facts.
The parties, in December 1987, entered into an employment contract, which required appellant to move from Little Rock to Hampton Roads, Virginia, after the new year. Appellant assumed the duties of Chief Financial Officer of appellee’s corporation at that time. In May 1988, appellee notified appellant that the corporation was to be sold and that their relationship would end. Appellant worked for appellee until June 15, 1988.
Appellant claims that upon leaving this employment, he made appellee aware that he was beginning employment with the Mid-West Stock Exchange. It is not disputed that appellant left three forwarding addresses with appellee: a residence address at 1922 North Monroe, Little Rock, Arkansas, 72207; a business address at 400 North Olive, Suite 3302, Dallas, Texas, 75201; and a second business address c/o Mid-West Stock Exchange, 440 South LaSalle Street, Chicago, Illinois, 60605.
While living in Virginia, appellant allegedly borrowed a sum of money from appellee and did not repay it. Appellee filed suit in Virginia to collect the amount owed. As appellant was a non resident, service of process was obtained, pursuant to the Virginia Long Arm Statute, by serving the Secretary of the Commonwealth of Virginia. The Secretary, on March 23,1989, mailed the Summons and Complaint by first class mail to the Dallas, Texas, business address. Appellant did not answer and, on May 5,1989, default judgment was entered against him in the Circuit Court of the City of Norfolk, Virginia.
The Virginia statute upon which appellant bases his claim is Va. Code Ann. § 8.01-329 (Supp. 1990), the relevant portion of which reads as follows:
Service of process or notice on the Secretary may be made by mail if such service otherwise meets the requirements of this section. Such service shall be sufficient upon the person to be served, provided that notice of such service, a copy of the process or notice, and a copy of the affidavit are forthwith mailed, by the Secretary to the person or persons to be served at the last know post-office address of such person, and a certificate of compliance herewith by the Secretary or someone designated by him for that purpose and having knowledge of such compliance, shall be forthwith filed with the papers in the action. Service of process or notice on the Secretary shall be effective on the date the certificate of compliance is filed with the court in which the action is pending.
It is not appellant’s contention that this statute is unconstitutional. Rather, it is his contention that appellee’s use of the procedure set out therein fell short of due process requirements. Even though appellant concedes that appellee was not bound to use all three addresses, he claims appellee, by mailing notice to only the Dallas business address, did not satisfy the due process requirement established in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), that service be reasonably calculated to reach the party to be served.
Determining whether service of process was reasonably calculated to reach a party involves analysis of particular circumstances of each case. Virginia Lime Co. v. Craigsville Distrib. Co., 670 F.2d 1366 (4th Cir. 1982). The record reveals that preceding the March 23, 1989 service of process mailed by the Secretary of the Commonwealth of Virginia to the Dallas address, only on one occasion did appellee correspond with appellant by mail; on December 4,1987, appellee mailed appellant a letter confirming appellant’s employment. This letter was mailed to the same Little Rock address that appellant gave as one of the forwarding addresses. As stated before, upon leaving his employment with appellee in Virginia, appellant gave appellee three addresses to be used for forwarding purposes. Even assuming appellee knew appellant had permanent ties to Little Rock, we cannot say that mailing the notice to one of the addresses appellant gave appellee is not service reasonably calculated to reach appellant.
Based on the foregoing, the trial court’s granting full faith and credit to the foreign judgment is affirmed. | [
-80,
-20,
-15,
-34,
-102,
96,
56,
-102,
-44,
-30,
37,
83,
41,
-62,
16,
123,
-27,
43,
116,
96,
-43,
-78,
7,
64,
-14,
-77,
-31,
85,
-112,
111,
-28,
-98,
76,
32,
-22,
-43,
-26,
10,
-127,
-102,
110,
-124,
-103,
109,
-47,
-57,
48,
59,
16,
75,
33,
-20,
-85,
45,
-101,
-54,
41,
42,
105,
-84,
64,
-15,
-117,
-115,
127,
5,
-111,
36,
-80,
71,
-48,
46,
-128,
57,
33,
-7,
114,
-90,
-126,
-12,
107,
29,
8,
96,
98,
-128,
97,
-19,
-40,
-120,
38,
-4,
-113,
-89,
-109,
105,
73,
37,
-74,
-97,
110,
4,
4,
92,
-22,
-35,
31,
108,
11,
-49,
-42,
-93,
-81,
116,
-104,
11,
-18,
-125,
-108,
113,
-50,
-8,
92,
86,
57,
11,
-50,
-97
] |
Per Curiam.
The Arkansas Court of Appeals affirmed a decision of the Workers’ Compensation Commission denying benefits to the petitioner, Vickie Scarbrough. In her petition seeking review of the Court of Appeals decision, Scarbrough v. Cherokee Enter., 33 Ark. App. 139, 803 S.W.2d 561 (1991), Ms. Scarbrough has raised an issue concerning the standard of review to be applied on appeal of workers’ compensation cases. The Court of Appeals addressed the issue, pointing out that the standard of appellate court review of workers’ compensation cases had been discussed, Webb v. Workers’ Compensation Comm’n, 292 Ark. 349, 352, 730 S.W.2d 222, 726 (1987) (Newbern, J., Concurring), see also Hamby v. Everett, 4 Ark. App. 52, 627 S.W.2d 266 (1982) (Glaze, J., Dissenting), but that the law making the commission the fact finding body and limiting the review to a substantial evidence standard remains the law. Arkansas Power & Light Co. v. Hooks, 295 Ark. 296, 749 S.W.2d 291 (1988).
The petition for review is granted, and the parties are directed to file supplemental briefs limited to discussion of the standard of review issue and the question whether an appellate court should be bound by a factual determination by a commission or board which has not had the evidence directly presented before it. The Briefs will be filed pursuant to Arkansas Supreme Court and Court of Appeals Rule 29.6., except that the Petitioner shall have 30 days from the date of this order to file her brief, and the Respondent shall have 20 days from the date the Petitioner’s brief is filed to file the Respondent’s brief.
Briefs from interested amici curiae are invited. | [
52,
-22,
-11,
-116,
8,
-29,
50,
-70,
67,
-113,
39,
67,
-81,
-25,
21,
107,
59,
13,
102,
105,
-42,
-78,
83,
66,
67,
-9,
51,
87,
-71,
123,
-92,
-10,
73,
48,
-54,
-59,
102,
-56,
-55,
24,
-50,
7,
-117,
-19,
81,
-64,
56,
110,
-70,
15,
17,
-66,
-29,
44,
24,
-61,
44,
44,
123,
34,
80,
49,
-118,
13,
-1,
5,
-93,
-128,
61,
37,
-48,
46,
-36,
49,
67,
-20,
112,
-74,
-122,
52,
107,
-103,
12,
98,
99,
33,
20,
-29,
108,
-96,
54,
-66,
-115,
-89,
-70,
25,
73,
3,
-122,
-68,
106,
-108,
6,
126,
-30,
69,
94,
44,
-116,
-113,
-76,
-95,
71,
0,
20,
-126,
-25,
-93,
-110,
116,
-35,
-78,
92,
70,
19,
-37,
-114,
-72
] |
Per Curiam.
On February 7,1991, David Davison filed an amended petition for a writ of prohibition to the Searcy Chancery Court enjoining that court from proceeding with a February 7, 1991, hearing. The petition alleges that this court had previously prohibited the chancellor from hearing a case styled Marilyn Davison (now Mason) v. David Davison as long as the case was removed to the United States District Court for the Western District of Arkansas. The amended petition alleged that the respondent chancery judge of Searcy County was proceeding irrespective of the temporary stay issued by this Court.
Exhibits to the response of Marilyn Davison Mason, filed February 19, 1991, reflect that by order of July 27, 1990, the United States District Court remanded the case to state court upon the failure of David Davison to amend his notice of removal within the eleven days allowed, noting that he failed to supply information as to whether the removal to federal court was timely. On August 28, 1990, a motion for reconsideration by David Davison was denied and on February 11,1991, the United States Court of Appeals for the Eighth Circuit dismissed Davison’s appeal as frivolous.
For the reasons stated, the amended petition for writ of prohibition and emergency Motion for Contempt are denied as moot and the temporary writ of prohibition is dissolved. Respondent’s prayer for sanctions pursuant to A.R.C.P. Rule 11 is denied. | [
-75,
-22,
-28,
28,
11,
65,
122,
-74,
66,
-77,
103,
83,
-87,
82,
84,
113,
-77,
79,
113,
121,
-37,
-74,
86,
64,
115,
-45,
-38,
-41,
-73,
77,
-27,
-39,
72,
48,
-54,
-43,
6,
-118,
-53,
92,
-50,
1,
-101,
-19,
121,
11,
48,
35,
90,
15,
117,
60,
-77,
44,
24,
-57,
73,
44,
91,
45,
-40,
-71,
-103,
13,
111,
22,
49,
-92,
-100,
-123,
88,
126,
-108,
49,
18,
-8,
51,
-74,
-58,
116,
7,
-39,
40,
96,
98,
8,
-19,
-1,
-96,
-88,
54,
95,
-100,
-90,
-46,
57,
105,
45,
-73,
-107,
-3,
-107,
39,
126,
-66,
-113,
29,
60,
-122,
-50,
30,
-79,
-121,
57,
-124,
65,
-29,
39,
16,
69,
-59,
-26,
92,
86,
49,
-101,
-122,
-12
] |
John Mauzy Pittman, Judge.
The appellant, Tammy Suanne Staab, appeals from an order denying her request for permission to move from Fort Smith, Arkansas, to Wellington, Texas, with the parties’ fifteen-month-old daughter. The appellee, Thomas Wesley Hurst, opposed the move contending that he would effectively be denied visitation because of the geographical distance. For the reasons which follow, we reverse and remand for proceedings consistent with this opinion.
The parties divorced in June 1992. Appellant was awarded custody of their minor daughter subject to appellee’s visitation every Wednesday evening, every other weekend, alternating holidays, and two weeks in the summer. The decree further provided that the child was not to be permanently removed from the jurisdiction of the court without the court’s permission.
Appellant subsequently filed petitions to have appellee cited for contempt and for permission to remove the child from the jurisdiction of the court. At a hearing held in October 1992, appellant testified that she was seeking permission to move to Wellington, Texas, so that she could attend nursing school. Appellant testified that her income consisted of child support and various entitlements that she and the child receive from federal assis tance programs. She testified that appellee had made limited economic contributions, was behind in his child support obligation, and that she had difficulty meeting her basic financial needs. Appellant testified that she had applied to local nursing schools in Fort Smith and, while she met admission criteria, she was not selected to be admitted because the competition for the limited number of openings was so great. She stated that she learned through friends in Wellington, Texas, that she might be able to gain entry into the nursing program there. Appellant testified that she drove the six hours to Wellington, spoke to nursing school administrators, took a pre-test for admission into the nursing program, and was told that she did well enough to gain admittance. Appellant stated that, while the next academic year would not begin until August 1993, she had to be present for another necessary examination in February 1993 and that she had already found a home there and a job as a nurse’s aide in a hospital near the nursing school.
Appellee did not seek to gain custody of the child. He requested only that appellant not be allowed to move with their daughter. He stated that on his take home pay of approximately $170.00 per week he would be unable to afford the six-hour drive to Wellington. He stated that since the divorce he had missed only one scheduled visit with the child, and that he was sick on that occasion. He stated that he thought it would not be in the parties’ daughter’s best interest to be moved some distance from him and from her grandparents, and he expressed concern that he might not see her for several months at a time. Appellee conceded that he was behind in his child support obligation and that he had failed to comply with the previous court order that he pay an outstanding medical bill. Appellee testified that he was a licensed mortician, capable of practicing in over thirty states, but was not currently working as a mortician. He testified that he was presently working for a wood-working company, admittedly making less than half the income he had made as a mortician. He testified that he had quit his last job as a mortician some ten months prior to the October hearing because he wanted a “break.” He testified that he was actively seeking to return to that field, was considering possibilities both in Little Rock and in Houston, Texas, and likely would himself soon be moving to secure such employment.
At the conclusion of the hearing, the court held appellee in contempt of court. Appellee was ordered to páy over $700.00 in back child support and previously ordered attorney’s fees, and $45.00 per month towards outstanding medical bills. The court denied appellant’s petition to move to Texas with the child, stating as follows:
I just can’t see that it would be in this baby’s best interest who is a little over a year old to be removed from this area where her father where, because of the distance of approximately 500 miles [sic], . . would make it impractical for him to be able to exercise his visitation rights. Also, the child has had a very close relationship with both grandparents, and it would virtually greatly reduce if not eliminate the contact with the grandparents. I think that is important to the child’s development. I think there are numerous educational opportunities available in this immediate area that the mother can pursue. I appreciate her desires to better herself and get a degree in something, but I think there are numerous avenues that can be explored. Whether or not she can get into a nursing program in this area, that I don’t know. It may be that she may need to reevaluate what she wants to do there. The father has been diligent in exercising his visitation. I think the testimony was he has only missed one visit and that was because he was sick. The Court finds that the mother has no family members living in the Wellington, Texas area. Another thing that concerns the Court is the schooling that she is wanting to enter into out there is not even scheduled to start until August of 1993.
Appellant appeals from this denial of her petition.
The first issue that we must consider in this case is the standard to be applied by a trial court in determining when a custodial parent may relocate outside the jurisdiction of the court. Obviously, there can be no precise formula that will resolve each case. Until now, while expressing concern for the non-custodial parent’s rights of visitation, our courts have said little more than that “the parent having custody of a child is ordinarily entitled to move to another state and to take the child to the new domicile.” Ising v. Ward, 231 Ark. 767, 768, 332 S.W.2d 495 (1960); Gooch v. Seamans, 6 Ark. App. 219, 220, 639 S.W.2d 541 (1982). While we agree with the chancellor that achieving the “best interests of the child” remains the ultimate objective in resolving all child custody and related matters, we believe that the standard must be more specific and instructive to address relocation disputes. In particular, we think it important to note that determining a child’s best interests in the context of a relocation dispute requires consideration of issues that are not necessarily the same as in custody cases or more ordinary visitation cases.
After a. divorce and an initial custody determination, the determination of a child’s best interests cannot be made in a vacuum, but requires that the interests of the custodial parent also be taken into account. In D’Onofrio v. D’Onofrio, 144 N.J. Super. 200, 365 A.2d 27, aff’d 144 N.J. Super. 352, 365 A.2d 716 (App. Div. 1976), perhaps the leading case on custodial parent relocation and which we find persuasive, the court discussed this issue as follows:
The children, after the parents’ divorce or separation, belong to a different family unit than they did when the parents lived together. The new family unit consists only of the children and the custodial parent, and what is advantageous to that unit as a whole, to each of its members individually and to the way they relate to each other and function together is obviously in the best interest of the children. It is in the context of what is best for that family unit that the precise nature and terms of visitation and changes in visitation by the noncustodial parent must be considered.
D’Onofrio, 365 A.2d at 29-30. See also Antonacci v. Antonacci, 222 Ark. 881, 263 S.W.2d 484 (1954) (in approving the custodial parent’s move from Arkansas to California, the supreme court specifically considered that she “prefer[ed]” to live in California and was “happy” there). The court in D’Onofrio was careful not to equate the best interest of the child with the best interest of the custodial parent. The court specifically recognized the importance of developing and maintaining a relationship with the non-custodial parent and the importance of visitation:
Where the residence of the new family unit and that of the non-custodial parent are geographically close, some variation of visitation on a weekly basis is traditionally viewed as being most consistent with maintaining the parental relationship, and where, as here, that has been the visitation pattern, a court should be loathe to interfere with it by permitting removal of the children for frivolous or unpersuasive or inadequate reasons. . . .[Nevertheless,] the court should not insist that the advantages of the move be sacrificed and the opportunity for a better and more comfortable lifestyle for the [custodial parent] and children be forfeited solely to maintain weekly visitation by the [non-custodial parent] where reasonable alternative visitation is available and where the advantages of the move are substantial.
D’Onofrio, 365 A.2d at 30.
D’Onofrio also attempted to articulate a framework by which courts should be guided in deciding relocation disputes. It provides that, where the custodial parent seeks to move with the parties’ children to a place so geographically distant as to render weekly visitation impossible or impractical, and where the noncustodial parent objects to the move, the custodial parent should have the burden of first demonstrating that some real advantage will result to the new family unit from the move. D’Onofrio further provides that, where the custodial parent meets this threshold burden, the court should then consider a number of factors in order to accommodate the compelling interests of all the family members. These factors should include: (1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non-custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent’s motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent. See also Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984).
We conclude that the criteria adopted in D’Onofrio are sound. We also conclude, from our review of the chancellor’s ruling, that he made his determination of the child’s best interests without appropriate consideration of the interests and well-being of the custodial parent. It would also appear that no consideration was given to the possibility of alternatives to the existing visitation schedule.
Chancery cases are reviewed de novo on appeal, and we ordinarily render the decree here that should have been rendered below. The rule is not imperative, however, as this court has the power, in furtherance of justice, to remand any case in equity for further proceedings, including even the taking of additional evidence. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979); see Bradford v. Bradford, 34 Ark. App. 247, 808 S.W.2d 794 (1991). Here, the theory on which the chancellor decided the case was somewhat erroneous, and did not take into account several aspects of the guidelines we adopt today. Because the case involves a minor child, it is also one of that class of cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carries its greatest weight. See Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981). Under these circumstances, we think that the case should be remanded for the chancellor to have the opportunity to decide the issues in accordance with the standards set forth in this opinion. We emphasize that we express no opinion as to the determination that should be made by the chancellor. We recognize that the parties’ circumstances have changed in the fourteen months since the original hearing. Therefore, further proceedings on remand should include hearing additional pertinent evidence that the parties may offer. See Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984); Hale v. Hale, 12 Mass. App. 812, 429 N.E.2d 340 (1981).
Reversed and remanded.
Rogers, J., concurs.
Cooper, J., dissents.
Mayfield, J., not participating.
Several of our sister states also follow D’Onofrio. See, e.g., Bachman v. Bachman, 539 So.2d 1182 (Fla. 4th Dist. Ct. App. 1989); Matilla v. Matilla, 474 So.2d 306 (Fla. 3rd Dist. Ct. App. 1985); Yannas v. Frondistou-Yannas, 395 Mass. 704, 481 N.E.2d 1153 (1985); Hale v. Hale, 12 Mass. App. 812, 429 N.E.2d 340 (1981); Anderson v. Anderson, 170 Mich. App. 305, 427 N.W.2d 627 (1988); Bielawski v. Bielawski, 137 Mich App. 587, 358 N.W.2d 383 (1984); Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991); Ramirez-Barker v. Barker, 107 N.C. App. 71, 418 S.E.2d 675 (1992); Fortin v. Fortin, 500 N.W.2d 229 (S.D. 1993); Taylor v. Taylor, 849 S.W.2d 319 (Tenn. 1993); Lane v. Schenck, 614 A.2d 786 (Vt. 1992); Love v. Love, 851 P.2d 1283 (Wyo. 1993). We recognize that New Jersey has a statute that provides that children cannot be removed from the jurisdiction without the consent of the non-custodial parent “unless the court, upon good cause shown, shall otherwise order.” N.J.S.A. 9:2-2. Although Arkansas has no such statute, we think that the factors outlined in D’Onofrio should apply to a chancellor’s consideration of the issue of relocation. See Bachman v. Bachman, 539 So.2d 1182 (Fla 4th Dist. Ct. App. 1989). | [
-111,
-22,
-123,
60,
27,
97,
26,
-80,
114,
-69,
103,
-47,
-17,
-38,
4,
105,
3,
47,
65,
105,
-13,
-73,
71,
96,
114,
-13,
-71,
-41,
-14,
79,
-12,
-41,
72,
112,
-118,
-43,
70,
-53,
-89,
-36,
-98,
5,
-86,
-19,
-39,
-126,
36,
99,
18,
15,
21,
-114,
-13,
44,
25,
-64,
-120,
46,
-35,
-76,
-56,
-48,
-101,
4,
-9,
67,
-79,
36,
-106,
4,
88,
44,
-44,
49,
40,
-7,
50,
-90,
-122,
116,
71,
-103,
9,
96,
115,
3,
-20,
-18,
-76,
-120,
110,
28,
-67,
-26,
-46,
88,
74,
1,
-65,
-108,
116,
-108,
11,
-6,
110,
13,
22,
108,
-122,
-114,
-108,
-79,
15,
-111,
4,
19,
-29,
-105,
48,
113,
-59,
-90,
92,
22,
51,
-101,
-114,
-70
] |
Melvin Mayfield, Judge.
Clarence McCullough was convicted in a bench trial of possession of a controlled substance with intent to deliver and sentenced as a habitual offender to twenty years in the Arkansas Department of Correction. On appeal he argues that the evidence was insufficient to support the verdict and that the judge erred in sentencing him as a habitual offender.
In Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), the Arkansas Supreme Court held that when, there is a challenge to the sufficiency of the evidence, we must review that point prior tó considering any alleged trial errors and, in doing so, we must consider all the evidence, including any which may have been inadmissible, in the light most favorable to the appellee. We affirm the conviction if there is substantial evidence to support the decision of the trier of fact. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty and precision, compel a conclusion one way or the other, without resorting to speculation or conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989); Ryan, supra.
When considered in the light most favorable to the appellee there was evidence that on January 30, 1992, Detectives Kevin Tindle and Steuart Sullivan of the Little Rock Police Narcotics Unit entered the Highland Court area at approximately 6:30 p.m. They observed a group of people standing near an apartment, and when they pulled up and started to get out of the patrol car two men turned as if to leave. Detective Tindle testified he ordered the men to stop and identified himself as a police officer, but they broke and ran. As appellant was running between two apartment buildings, Tindle saw appellant drop a white container from his hand. Tindle chased, caught, and arrested the second man while appellant was chased and apprehended on 12th Street by two other detectives. Tindle then took appellant into custody and went back to the area, where he had seen appellant drop something, and retrieved a white pill bottle and what proved to be narcotics, which were scattered over a five to ten foot area. Detective Tindle said he took the evidence and both men to the narcotics annex where the evidence tested positive for cocaine. He also related that appellant first gave officers a false name.
Detective Steuart Sullivan testified that when the men started running he circled a building in order to cut them off. When he saw Detective Tindle capture the other man, he chased appellant and eventually caught him on 12th Street. According to Detective Sullivan, he was present when another officer searched appellant, but no evidence was found on him.
Nick Dawson, a chemist with the Arkansas State Crime Laboratory, testified that he had performed three screening tests on each of the eleven pieces of evidence submitted to him by Detective Tindle and analyzed them by thin layer chromatography and infrared spectrometry. The substance tested to be 1.645 grams of 92 percent pure cocaine base.
Appellant first argues that the evidence was not sufficient to support the verdict. He points to testimony that in the area where the men ran between the two apartment buildings, it was very dark; Detective Tindle was unsure which hand appellant held the bottle in; several men ran from the scene; no other officer could confirm that the bottle was dropped by appellant; and since the cocaine was scattered over the ground, rather than being contained in the pill bottle, there was no evidence to show the cocaine was contained in the pill bottle.
The testimony of Detective Tindle that he saw appellant drop a white pill bottle as he was running down a path; that he later retrieved the bottle and what appeared to be its contents, which were scattered about five to ten feet down the path; and that the recovered material tested positive for cocaine is adequate to support the verdict.
The uncorroborated testimony of one State’s witness is sufficient to sustain a conviction. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Carmichael v. State, 296 Ark. 479, 757 S.W.2d 944 (1988); Maulding v. State, 296 Ark. 328, 757 S.W.2d 916 (1988); Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985). Although the evidence that the cocaine was in the pill bottle was circumstantial, circumstantial evidence may constitute substantial evidence. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989). To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence, but this is a question for the fact finder to determine. Sheridan, supra', Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). We think, since Detective Tindle saw appellant throw down a white bottle and eleven pieces of cocaine were found within a few feet of the bottle, the trier of fact could find that the only reasonable hypothesis was that the cocaine was in the bottle when it hit the ground. In addition, the fact that appellant fled from the officers, and when he was caught, gave them a fictitious name may also be indicative of guilt. Flight to avoid arrest and the use of a false name can be considered as corroboration of evidence tending to establish guilt. Riddle v. State, 303 Ark. 42, 791 S.W.2d 708 (1990); Austin v. State, 26 Ark. App. 70, 760 S.W.2d 76 (1988).
Appellant also argues that the trial court erred in sentencing him as a habitual offender. The record shows that on August 20, 1991, appellant entered a negotiated plea of guilty to possession of a controlled substance (1 count) and possession of drug paraphernalia (1 count), and was sentenced to three years probation conditioned upon compliance with written rules of conduct. Appellant argues that these two convictions should be considered only one conviction because of the circumstances surrounding the charges in that case. Counsel for the defendant argued to the trial court that because appellant was charged with possessing drugs and the paraphernalia with which to use the drugs, the two felony convictions should be regarded as only one conviction for enhancement purposes. The issue was reserved until sentencing.
At the time of sentencing the trial judge relied upon the case of Pitts v. State, 256 Ark. 693, 509 S.W.2d 809 (1974), in which Pitts had been convicted of possession with intent to deliver mor-, phine, cocaine, and secobarbital and sentenced to forty-five years each for the morphine and cocaine and four and one-half years for the secobarbital, to run consecutively. Our supreme court reversed and remanded because the judge had commented on the evidence during instructions. The court also said:
As we construe the Controlled Substance Act, Ark. Stat. Ann. § 82-2617 (Supp.-1973), [now Ark. Code Ann. § 5-64-401 (1987)] the simultaneous possession for. delivery of drugs classified as a narcotic drug under subsection (a)(l)(i) constitutes but one offense. Likewise the simultaneous possession of drugs classified under subsection (a)(1)(h) would constitute only one offense. However, the simultaneous possession of drugs classified under subsection (a)(l)(i) and of drugs classified under subsection (a)(1)(h) would constitute separate offenses.
256 Ark. at 695, 509 S.W.2d at 811. The judge in this case held that Pitts did not apply because possession of a controlled substance and possession of drug paraphernalia fall under two separate statutes and both offenses are felonies. Appellant was sentenced as a habitual offender to twenty years in the Arkansas Department of Correction.
But appellant argues that since Ark. Code Ann. § 5-4-501(c) (Supp. 1993) provides that burglary and the underlying felony are considered a single felony conviction and since simultaneous possession of drugs classified in the same statute subsection constitute only one offense, it should logically follow that possession of crack cocaine and possession of the pipe with which to smoke it should be considered only one offense.
In Robinson v. State, 303 Ark. 351, 797 S.W.2d 425 (1990), the appellant argued that previous offenses of robbery and theft of property over $2,500 should be considered as a single con viction for sentence enhancement purposes because the theft occurred during the course of the robbery. Again the Arkansas Supreme Court rejected this argument. After quoting Ark. Code Ann. § 5-4-501 (c) the court stated:
No such formula exists with respect to robbery, and, in the absence of such specific language, we decline to write into the legislation a provision that the legislative branch has failed to enact, presumably by design, in relation to the statutory definition of robbery.
Nor are the appellant’s 1978 convictions of robbery and theft of property conceptually connected. Just as the burglary and battery convictions in Shockley v. State, 291 Ark. 251, 724 S.W.2d 156 (1987), arising from the shooting of a policeman responding to a burglary report, were held to be “entirely separate and not subject to being counted as one offense under the habitual offender statute,” so here separate acts resulting in separate convictions are involved.
303 Ark. at 353, 797 S.W.2d at 426 (emphasis in the original).
This principle may be applied to the instant case. Appellant had previously entered a plea of guilty to possession of a controlled substance, a violation of Ark. Code Ann. § 5-64-401 (Supp. 1993), a felony, and possession of drug paraphernalia, a violation of Ark. Code Ann. § 5-64-403 (1987), also a felony. Therefore, the trial judge was correct in finding that appellant had been convicted of two previous felonies and sentencing him accordingly.
Affirmed.
Cooper and Pittman, JJ., agree. | [
48,
-18,
-19,
-4,
8,
-96,
58,
60,
81,
-89,
117,
83,
-91,
-13,
28,
97,
-29,
93,
84,
97,
-35,
-73,
35,
81,
98,
-73,
123,
-41,
49,
-37,
-27,
-44,
77,
52,
-30,
-59,
2,
72,
-57,
88,
-114,
13,
-78,
91,
98,
28,
36,
43,
-78,
15,
49,
-106,
-25,
43,
19,
-49,
73,
44,
75,
63,
72,
-79,
-104,
31,
-49,
22,
-93,
-76,
-101,
5,
-8,
60,
-36,
49,
1,
104,
51,
-90,
-110,
-12,
109,
-119,
-116,
96,
-22,
33,
29,
-17,
36,
-120,
86,
45,
-51,
-90,
-104,
73,
-53,
77,
-106,
-73,
100,
18,
14,
-24,
115,
68,
85,
108,
-93,
-49,
-100,
-79,
9,
116,
20,
113,
-21,
97,
16,
116,
-50,
-30,
84,
85,
88,
-37,
-106,
-105
] |
John B. Robbins, Judge.
Appellant A&C Services Inc. (A&C) appeals from a decision of the Arkansas Workers’ Compensation Commission finding that appellee Johnny Sowell was entitled to benefits of $166.68 per week, pursuant to Ark. Code Ann. § 11-9-518(a)(1) (1987). A&C contends that the Commission erred in basing Sowell’s average weekly wage on a forty-hour workweek in arriving at his weekly benefit rate. We agree, and reverse.
Sowell was employed by A&C on August 12, 1991, and worked until he was injured on the job at Goodwin Construction on September 10, 1991. The case was submitted to the Commission on stipulated facts and, essentially, involved only a question of law as to the method of computing weekly benefit rates of an employee of a temporary employment agency. The evidence before the Commission consisted solely of the following stipulation:
That the Respondent Employer is a temporary employment agency which provides employment opportunities for individuals by referring them to employment which is available with others who contract with the Respondent Employer to provide temporary employees in their businesses. That the Claimant, Johnny Lee Sow-ell, applied for employment with the Respondent Employer on August 12, 1991, and filled out an Application for Employment which is attached hereto as Exhibit “A.” That subsequent to August 12, 1991, the Claimant was provided employment through the Respondent Employer as follows:
Week Ending Employment Provided Hours Wages Worked Reev’d
$250.00 8/18/91 Goodwin Construction O Tf*
278.14 8/25/91 Goodwin Construction cn ”3*
160.00 9/01/91 Arkansas Proteins/ Rymer Foods m CO
100.00 9/08/91 Goodwin Construction \o r-4
112.50 9/15/91 Goodwin Construction co t — <
The Claimant returned to work for Goodwin Construction Company on September 5, 1991, worked eight hours on Thursday, September 5, 1991, eight hours on Friday, September 6, 1991, for a total of 16 hours, pay period ending Sunday, September 8, 1991. The Claimant worked ten hours Monday, September 9, 1991, and eight hours, Tuesday, September 10, 1991, for a total of 18 hours for the week ending September 15, 1991. The Claimant obtained medical treatment at the Convenient Medical Center on the date of his injury. The Claimant’s wage rate was Six Dollars and 25/100 ($6.25) per hour.
Sowell argued before the Commission that his weekly benefit rate should be based upon a forty-hour workweek. A&C contended that Sowell’s weekly benefit rate should be calculated by determining the actual number of hours worked and then averaging them over the number of weeks worked. The Administrative Law Judge treated the last two partial weeks of employment as one week, and divided four weeks into the total number of hours worked (149) to arrive at an average number of hours worked per week of 37.25. He found that Sowell was entitled to a weekly benefit rate of $155.20. The full Commission considered only Sowell’s employment history with Goodwin Construction, where he was working at the time of his injury, and found that he was working at least eight hours per day, five days per week for the weeks ending August 18 and August 25, 1991. The Commission found that appellee returned to work for Goodwin Construction on September 5, 1991, and worked eight hours on each day remaining in that particular pay period, and when the new period began on September 9, appellee was working “full-time,” or at least eight hours per day until his injury. The Commission went on to find that:
“Thus, the evidence indicates that the contract for hire with Goodwin Construction in force at the time of the accident was for at least eight hours per day, five days per week. Therefore, pursuant to Ark. Code Ann. § 11-9-518(a)(1) claimant’s average weekly wage should be computed on a full-time workweek in the employment.
A&C appealed this determination.
The applicable statute is found in Ark. Code Ann. § 11-9-518 which provides as follows:
(a)(1) Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of accident and in no case shall be computed on less than a full-time workweek in the employment.
(2) Where the injured employee was working on a piece basis, the average weekly wage shall be determined by dividing the earnings of the employee by the number of hours required to earn the wages during the period not to exceed fifty-two (52) weeks preceding the week in which the accident occurred and by multiplying this hourly wage by the number of hours in full-time workweek in the employment.
(b) Overtime earnings are to be added to the regular weekly wages and shall be computed by dividing the overtime earnings by the number of weeks worked by the employee in the same employment under the contract of hire in force at the time of the accident, not to exceed a period of fifty-two (52) weeks preceding the accident.
(c) If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the commission may determine the average weekly wage by a method that is just and fair to all parties concerned.
We and the supreme court have recently had occasion to address the method of determining a temporary worker’s weekly benefit rate. Metro Temporaries v. Boyd, 41 Ark. App. 12, 846 S.W.2d 668 (1993), aff’d, 314 Ark. 479, 863 S.W.2d 316 (1993). In Metro, the supreme court stated:
Travelers Ins. Co. v. Perry, [262 Ark. 398, 557 S.W.2d 200 (1977)] holds that an injured worker like Boyd [a temporary worker] cannot receive benefits based on a forty-hour week without actually having worked forty hours, unless the worker can prove he or she was bound by contract to work the forty hours if the work were made available. Perry, 262 Ark. [at] 400, 557 S.W.2d at 201.
In Marianna School District v. Vanderburg, the court of appeals held that the statute provides for benefits based upon the combining of wages and hours worked at different jobs, if the different jobs are performed for the same employer. Vanderburg, 16 Ark. App. at 274, 700 S.W.2d at 383. In this case Metro understood that it was the employer because it paid Boyd’s wages, obtained compensation coverage, and stipulated that it was the employer. Metro anticipated assigning Boyd to different jobs, with different hours, and at different wages. Metro assigned Boyd to different jobs pursuant to the contract of hire in force at the time of the accident. Under the cases interpreting the statute, Boyd is entitled to receive benefits based upon averaging the hours worked at the different jobs.
Metro Temporaries, 314 Ark. at 485, 863 S.W.2d at 319.
We hold that the Commission’s conclusion is in error for two reasons. First, the stipulated fact is that Sowell’s contract of hire was with A&C, not Goodwin. Furthermore, the only proof before the Commission is that contained in the parties’ stipulation, and this stipulation did not include any representation that Sowell worked forty hours each week for A&C, nor that Sowell was bound by contract with A&C to work forty hours each workweek if the work was made available to him. Sowell had the burden of proving that he was bound by contract to work forty hours each workweek if the work was made available. Travelers Ins. Co. v. Perry, supra. Consequently, pursuant to Metro Temporaries v. Boyd, supra, Sowell is entitled to receive benefits based upon an averaging of the hours worked and wages received at the different jobs to which he was assigned by A&C. We reverse the Commission’s holding that Sowell is entitled to benefits of $166.68 per week, and remand for the Commission to average the hours worked and wages received by Sowell for the weeks worked for A&C ending August 18, 1991, August 25, 1991, September 1, 1991, and September 8,1991. The week ending September 15, 1991, should not be considered inasmuch as Sowell’s employment was interrupted by his injury two days into that pay period and was not a “full workweek.” See Ark. Code Ann. § 11-9-518(c).
Reversed and remanded.
Mayfield, J., concurs.
Jennings, C J., and Rogers, J., dissent. | [
112,
106,
-11,
-52,
8,
-64,
26,
-98,
93,
-117,
-25,
83,
-87,
-59,
29,
127,
-29,
47,
-44,
105,
-109,
-93,
33,
107,
-61,
-9,
-29,
-59,
56,
111,
-12,
-12,
79,
56,
-62,
-43,
-26,
-62,
-49,
28,
78,
-121,
-53,
105,
-7,
0,
48,
62,
88,
27,
49,
-116,
-37,
44,
-112,
-53,
108,
44,
91,
40,
81,
-15,
-38,
13,
127,
21,
-95,
100,
-102,
7,
-40,
24,
-104,
49,
64,
-40,
114,
-74,
-58,
52,
115,
-71,
12,
32,
99,
50,
1,
-25,
-4,
-40,
22,
-44,
-115,
-92,
-111,
57,
11,
15,
-105,
-100,
122,
20,
22,
122,
-8,
69,
79,
104,
7,
-114,
-108,
-29,
-51,
104,
-100,
-101,
-17,
-125,
17,
101,
-50,
-94,
93,
-57,
115,
-101,
-113,
-78
] |
John E. Jennings, Chief Judge.
The Arkansas Development Finance Authority is an independent instrumentality of the State of Arkansas created to assist in the financing of residential housing. The appellant, First National Bank of Eastern Arkansas, qualified with the Finance Authority to participate in the Arkansas 1983 Series D Bond Program. First Commercial Mortgage Company is an Arkansas corporation which services loans for the Finance Authority. Verex Assurance, Inc. is a mortgage loan insurer.
In early 1984, Mr. and Mrs. Randall Horner applied to First National for a loan to buy a home in Forrest City. In connection with the loan First National submitted documents to Verex indicat ing that the purchase price for the house was $68,000.00; that the loan was to be for $64,600.00, or 95% of the purchase price; and that the Horners were making a 5% down payment. Included in the documents was a “gift letter” purportedly signed by Randall Horner’s mother stating that she would give him $7,500.00 for the down payment and closing costs. Verex approved the application for the purpose of issuing mortgage loan insurance, and First National approved the loan and took a mortgage on the property. At the same time, First National made an additional loan of $7,500.00 to the Horners, payable in thirty-six monthly installments and secured by a second mortgage on the property. Both mortgages were promptly recorded. On that same day, May 14, 1984, First National assigned the $64,600.00 note and mortgage to the Finance Authority. The Finance Authority later transferred the loan to First Commercial for servicing.
In February 1987, the Homers paid the $7,500.00 note in full. In late 1987 the Horners defaulted on the larger note. First Commercial, on behalf of the Finance Authority, filed suit for foreclosure and obtained a decree. The Finance Authority bought the property at sale for $69,738.00, the full amount of the judgment including interest, costs, and attorneys fees. The Finance Authority subsequently sold the property for approximately $35,000.00.
In August 1988, First Commercial filed a claim of loss with Verex under the mortgage insurance policy. In May 1989, Verex denied the claim based on its investigation, which showed that the “gift letter” had been forged and that the Horners’ down payment had apparently been financed by the $7,500.00 loan from First National.
In May 1990, First Commercial and the Finance Authority sued First National and Verex. All parties filed motions for summary judgment. The chancellor dismissed the complaint as against Verex, but granted the plaintiffs’ summary judgment against First National in the amount of $64,000.00 together with interest and attorney’s fees.
One issue raised on appeal requires reversal. Part of the agreement between First National and the Finance Authority is contained in a document known as the Conventional Mortgage Lender’s Guide. The lender’s guide provided:
[T]he Mortgage Lender, by its entering into a Mortgage Loan Purchase Agreement, hereby waives any claim or defense of any statute of limitations which might otherwise be raised in defense to any repurchase obligation of the Mortgage Lender or damage claim of the Agency related thereto.
The chancellor held in the order granting summary judgment that First National thereby waived the statute of limitations as a defense. The precise issue is whether an agreement to waive the statute of limitations for all time, made at the inception of the contract, is void because it violates public policy. We hold that such an agreement is void and unenforceable.
The question appears to be one of first impression in this state. Professor Arthur Corbin states that an express agreement, made at the time of the original contract, never to plead the statute of limitations as a defense, is generally regarded as against public policy and void' 6A Arthur L. Corbin, Corbin on Contracts § 1515, at 729 (1962). See also 1A Corbin on Contracts § 218; 1 Samuel Williston, Treatise on the Law of Contracts § 183 (Walter H. Jaeger ed., 3d ed. 1957). As the court said in John J. Kassner & Co. v. City of New York, 46 N.Y.2d 544, 415 N.Y.S.2d 785, 389 N.E.2d 99 (1979):
Although the Statute of Limitations is generally viewed as a personal defense “to afford protection to defendants against defending stale claims”, it also expresses a societal interest or public policy “of giving repose to human affairs”. Because of the combined private and public interests involved, individual parties are not entirely free to waive ... the statutory defense.
415 N.Y.S.2d at 789, 389 N.E.2d at 103 (citations omitted). See also Corbin, supra; Williston, supra; Hirtler v. Hirtler, 566 P.2d 1231 (Utah 1977); Crane v. French, 38 Miss. 503 (1860).
Other decisions supporting the rule include Titus v. Wells Fargo Bank & Union Trust Co., 134 F.2d 223 (5th Cir. 1943); Munter v. Lankford, 127 F.Supp. 630 (D.C. 1955), aff’d 232 F.2d 373 (1956); Ross v. Ross, 96 Ariz. 249, 393 P.2d 933 (1964); Squyres v. Christian, 253 S.W.2d 470 (Tex. Civ. App. 1952); Simpson v. McDonald, 142 Tex. 444, 179 S.W.2d 239 (1944); National Bond & Investment Co. v. Flaiger, 322 Mass. 431, 77 N.E.2d 772 (1948); First National Bank of La Junta v. Mock, 70 Colo. 517, 203 P. 272 (1921); Segond v. Landry, 1 Rob. 335 (La. 1842). See also Bell v. Morrison, 26 U.S. 351 (1828) (Story, J.); Dunlop Tire & Rubber Corp. v. Ryan, 171 Neb. 820, 108 N.W.2d 84 (1961); Kentucky River Coal & Feed Co. v. McConkey, 271 Ky. 261, 111 S.W.2d 418 (1937); Kellogg v. Dickinson, 147 Mass. 432, 18 N.E. 223 (1888); Moore v. Taylor, 2 Tenn. Ch. App. 556 (1897).
There are decisions to the contrary: Simpson v. Hudson County National Bank, 141 N.J. Eq. 353, 57 A.2d 473 (1948); Brownrigg v. De Frees, 196 Cal. 534, 238 P. 714 (1925) (superseded by statute as stated in Carlton Brown & Co. v. Superior Court, 210 Cal. App. 3d 35, 258 Cal. Rptr. 118 (1989)); Parchen v. Chessman, 49 Mont. 326, 142 P. 631 (1914); State Trust Co. v. Sheldon, 68 Vt. 259, 35 A. 177 (1896). Professor Corbin suggests that these cases should now be disregarded, and we do not find them persuasive. We hold that it was error for the chancellor to rule that the statute of limitations had been waived.
The Finance Authority contends, in the alternative, that the statute of limitations was tolled as a result of fraudulent concealment on the part of First National. See, e.g., Dupree v. Twin City Bank, 300 Ark. 188, 111 S.W.2d 856 (1989). But the chancellor did not decide the case on this basis and the record is not sufficiently developed to permit us to decide the issue de novo on appeal. Therefore the case must be remanded.
First National also contends that venue was not proper in Pulaski County. The argument is that proper venue for a suit against a national banking association is set by 12 U.S.C. § 94 and that First National was subject to suit only in the county in which it is located, in this case St. Francis County, Arkansas. It is undisputed, however, that First National agreed, under the terms of the lender’s guide, to be subject to suit in Pulaski County. Venue may be waived. Thompson v. Dunlap, 244 Ark. 178, 424 S.W.2d 360 (1968). That is what occurred here.
Appellant next argues that the chancery court lacked subject matter jurisdiction. We disagree.
In Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987), we discussed the nature of subject matter jurisdiction:
The rule of almost universal application is that there is a distinction between want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exercised. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudge matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power. Subject matter jurisdiction does not depend on a correct exercise of that power in any parti-cular case. If the court errs in its decision or proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action in the erring court. If it was within the court’s jurisdiction to act upon the subject matter, that action is binding until reversed or set aside.
In the case at bar the “subject matter” of the litigation is a contract between the parties. First National’s argument is based on its contention that the action is merely one for damages and therefore an adequate remedy exists at law.
It is apparent from decisions of the Arkansas Supreme Court that the existence of an adequate remedy at law does not deprive the chancery court of subject matter jurisdiction. In Towell v. Shepherd, 286 Ark. 143, 689 S.W.2d 564 (1985), the .supreme court said, “[W]hen a suit is improperly brought in equity it should not be dismissed, but should be transferred to the law court and ... if no motion to transfer is made, the objection is deemed waived, unless there is total lack of jurisdiction, such as a criminal case or probate of a will.” 286 Ark. at 145, citing Stolz v. Franklin, 258 Ark. 999, 531 S.W.2d 1 (1975). In Stolz the court said, “In the absence of such a motion [to transfer], the chancery court may, in its discretion, transfer the case on its own motion or proceed to trial on the merits.” In Priddy v. Mayer Aviation, Inc., 260 Ark. 3, 537 S.W.2d 370 (1976), the court said “[F]ailure to plead lack of jurisdiction in equity because of an adequate remedy at law waives this objection to jurisdiction on appeal.” And in Reid v. Karoley, 232 Ark. 261, 337 S.W.2d 648 (1960), the court said that when the basis of an objection to equity jurisdiction is the existence of an adequate remedy at law, the “proper method of procedure ... is by a motion to transfer and not by demurrer.”
By definition, subject matter jurisdiction cannot be waived. Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976); In re Estate of Puddy v. Gillam, 30 Ark. App. 238, 785 S.W.2d 254 (1990). But clearly under the decisions of the Arkansas Supreme Court an objection to the exercise of equity jurisdiction on the basis of the existence of an adequate remedy at law can be waived. In the case at bar, no motion to transfer to law court was filed. Accordingly, this objection was waived. See Towell v. Shepherd, 286 Ark. 143, 689 S.W.2d 564 (1985).
Appellant raises several other issues but those issues are either moot in light of our decision on the question of the statute of limitations or are without merit. We do agree with the contention of Verex that it is “not a proper party to this appeal.” See Buck v. Monsanto Co., 254 Ark. 821, 497 S.W.2d 664 (1973).
For the reasons stated, the judgment appealed from is reversed and the case is remanded for further proceedings.
Reversed and Remanded.
Robbins, J., agrees; Mayfield, J., concurs. | [
52,
-19,
-16,
110,
72,
96,
40,
10,
90,
-31,
37,
-45,
-25,
-18,
21,
-19,
-90,
79,
-28,
105,
-105,
-78,
55,
104,
-46,
-69,
-15,
-27,
-76,
-19,
-12,
-107,
72,
0,
-54,
85,
-94,
96,
-93,
88,
78,
-120,
-117,
69,
-51,
70,
48,
43,
-78,
11,
5,
-84,
-11,
45,
57,
75,
109,
40,
111,
41,
-48,
-15,
-53,
77,
-33,
23,
-127,
116,
-102,
71,
120,
30,
-48,
49,
12,
-8,
82,
38,
-122,
116,
75,
-101,
12,
-92,
98,
34,
81,
-51,
-20,
-88,
38,
-29,
-113,
-105,
-78,
120,
66,
47,
-65,
-99,
94,
6,
6,
-36,
-5,
85,
29,
108,
3,
-50,
-44,
-93,
20,
-16,
31,
11,
-25,
-57,
48,
117,
-49,
96,
93,
-42,
127,
-102,
86,
-66
] |
Mr. Chief Justice English
delivered the opinion of the court.
Fowler brought replevin in the detinet against Patterson, in the Jackson Circuit Court, for three cows, a yearling and two bedsteads.
The defendant pleaded non-detinet, and property in himself, traversing plaintiff’s title. The case was tried by a jury, on issues to the pleas, and verdict and judgment for the plaintiff, and the defendant brought error.
The court gave the following instruction to the jury :
“ The property of the goods is admitted to be in the plaintiff by the plea of non-detinet. This relieves the plaintiff of the necessity of proving it to be his property.”
This instruction is directly against the statute. The action being in the detinet, the plea oí non-detinet put in issue not only the wrongful detention of the goods, but also the property of the plaintiff therein. Gould's Dig., chapter 145, sec. 34.
The court also charged the jury, as follows :
“ The plea of property in the defendant puts it on the defendant to prove it to be his, the defendant’s property ; and as to whose property it was, the jury are to determine.”
This instruction is contrary to the repeated decisions of this court. Under the plea of property in the defendant, traversing (iabsque hoc, §c.,) the title of the plaintiff, the onus probandi was upon the plaintiff. Robinson vs. Calloway, 4 Ark. 95; Dixon vs. Thatcher et al., 14 Ark. 141; Anderson vs. Dunn, 19 Ib. 650.
The substance of the evidence introduced upon the trial is> that on the 28th March, 1857, Fowler, the plaintiff below, being arrested by the sheriff, upon a capias, entered into bond with the defendant, Patterson, as his surety for his appearance at the ensuing June term of the Jackson Circuit Court, to answer an indictment for an assault and battery.
That on the 20th May, 1857, Fowler made to Patterson a bill of sale, reciting that he was his surety in the bond above referred to, for hfe appearance at court, and transferring to him the property sued for as an indemnity, stipulating that if he failed to appear at court, &c., the cattle, &c., were to be the property of Patterson, but if he appeared, the instrument was to be void, and the property was to be returned to Fowler.
Under this instrument the possession of the property was delivered to Patterson.
That Fowler appeared at court, and pleaded guilty to the indictment, whereby Patterson was released from the bail bond.
The testimony of one witness conduces to prove, though not clearly, that after Patterson was released from the bail bond, arid before suit, Fowler made a demand of the property.
The bill of exceptions states that defendant offered to prove “that the plaintiff intended leaving the country to avoid being prosecuted for a felony, an offence other than that in which defendant stood surety for his appearance, and that with a view to this fact, and for the purpose of procuring the defendant’s approval and sanction of the plaintiff’s act in leaving the country as aforesaid, to avoid said prosecution for felony, the plaintiff made and delivered said written instrument to said defendant, and with it possession of the property in the writing described: which evidence the court excluded on the objection of the plaintiff.
The court did not err in excluding this evidence. The bill of sale shows upon its face that it was made for a valid and legal consideration — to indemnify defendant as the surety of plaintiff in the bail bond. The defendant did not offer to prove that such was not in fact the consideration of the instrument, but that the consideration was different and illegal.
What he offered to prove, as stated above, was that the plaintiff intended leaving the country to avoid a prosecution for felony, and that with the view to this fact, and for the purpose of procuring defendant’s approval of his leaving, plaintiff executed the bill of sale. The intention of plaintiff in executing the bill of sale was one thing, and the consideration of the instrument was another. The defendant was the plaintiff’s surety in the bail bond, and the plaintiff may have supposed that if he attempted to leave the country without indemnifying him, he would attempt to prevent his leaving, and this may have been the motive which induced the plaintiff to execute to the defendant the bill of sale — but the instrument being founded on a sufficient legal consideration on the part of the defendant, the particular motive which may have induced plaintiff to execute it, could not affect the validity of the instrument.
If the plaintiff had offered to prove that he was about to leave the country to avoid a prosecution for felony, and that the defendant was taking steps to prevent his departure, and that the consideration of the bill of sale was that defendant would desist, and permit the plaintiff to leave, perhaps the evidence would have been admissible to prove that the instrument was executed upon an illegal consideration.
The court erred in charging the jury that the onus probandi, under the issues to the pleas, was upon the defendant, but the defendant was not prejudiced by the error ; for notwithstanding this charge of the court, the plaintiff did make out his case — the defendant introducing no testimony as to the title of the property whatever. And upon the evidence in the cause, the jury could not have found otherwise than that the plaintiff was the owner of the property sued for, and entitled to the possession of it, and if the case were reversed, and sent back, another jury could but render the same verdict upon the same evidence.
The proof of demand was not of the most satisfactory char acter, but the charge of the court held to be erroneous, did not relate to the demand, and there was no motion for anew trial. So that the. sufficiency of the evidence to prove the demand is not before ns.
The court did not err in permitting the plaintiff to execute a new replevin bond, in order to release a surety in the original bond, whom he desired to use as a witness.
The judgment must be affirmed. | [
96,
-20,
-76,
60,
104,
-96,
40,
-102,
-64,
-93,
102,
-45,
-87,
-58,
0,
43,
-7,
31,
85,
121,
86,
-73,
3,
103,
-46,
-45,
19,
85,
-75,
73,
-22,
-41,
76,
48,
-62,
-43,
70,
-117,
-59,
92,
-50,
9,
26,
-27,
-55,
64,
48,
49,
22,
27,
113,
-99,
-29,
38,
29,
-53,
105,
40,
-21,
57,
-56,
120,
-70,
15,
111,
22,
-109,
38,
-118,
7,
90,
46,
-104,
57,
-127,
-24,
115,
-74,
-126,
84,
41,
11,
8,
98,
102,
33,
76,
75,
56,
-104,
47,
127,
-115,
-89,
16,
80,
75,
8,
-65,
-99,
126,
-108,
-89,
116,
-25,
-116,
85,
104,
3,
-33,
-108,
-93,
-83,
44,
-112,
67,
-45,
37,
48,
113,
-49,
-30,
93,
71,
92,
27,
-123,
-35
] |
Mr. Chief Justice English
delivered the opinion of the Court.
This was an action on the case brought by Clifton, for the use of Jordan, against Brooks, in the Ouachita Circuit Court.
The declaration contained two counts. The substance of the first was, that the plaintiff rented to the defendant a store house situated on a lot in Camden, for the express and sole purpose of storing certain furniture therein, and that the defendant, in disregard of his special contract, stored in the house certain heavy articles of freight, such as barrels of whiskey, rum, brandy, cider, stoves, castings, grindstones, plows, etc., of great weight, etc., by means whereof the store house fell down, and was destroyed, etc.
The defendant pleaded the general issue, and on the trial the following evidence was introduced, as stated in the bill of exceptions:
Win. S. Thornton, witness for plaintiff, testified that he was in the store of E. N. Woodland, & Co., when defendant came in, and said he had some furniture coming around and wanted to rent his (Jordan’s) house to put it in. A good deal of conversation followed, which witness did not recollect. Heard Jordan remark that the house was not finished, the floors were not laid. Brooks remarked that the things were light, and they would put them in the lower room, and could easily remove them to the upper room, and the rent adjusted afterwards.
On cross-examination, the defendant asked the witness if there was any contract between the parties restricting defendant to the storing of furniture alone in said house. Witness replied that he had heard nothing but furniture mentioned.
On the question being again propounded he answered, no.
Upon being asked by plaintiff, if defendant did not say he wanted the house to store furniture in, witness replied, he did.
E. N. Woodland, witness for plaintiff, testified that he came up the street with Books, and went into the store of E. N. Woodland & Co., with him. Brooks told Jordan, he wanted to rent his house to store some goods in that he had coming around on. a steam boat, and said the goods were furniture. Jordan said his house was not finished, but Brooks said the goods were light, and could be moved very easily.
On cross-examination, witness was asked if Brooks was restricted to the storing of furniture alone, and he answered, he was not, at least he heard no restriction mentioned.
The house was proven to have been worth from $1,000 to $] ,800, and the wreck was sold for $175.
Witnesses for both parties testified that the building was a fair ordinary building, but the underpining was insufficient, and there was not sufficient support. One witness stated that the plaintiff intended to make the underpining stronger. Another witness testified that in his opinion the building would not have fallen had furniture alone been stored therein.
It was proven, on behalf of plaintiff, that the building fell down in complete ruins; and that there were, at the time, stored therein some eight or nine stoves, and some 30, 40 or 50 barrels of whiskey, averaging 360 pounds to the barrel.
The witness who testified as to the number of barrels of whiskey stored, further stated that he saw Jordan at the store door in the afternoon, when the freight was in there, and asked him if he was not storing goods, and received air evasive reply. Did not hear him make any objection to storing of whiskey, or any thing else. Did not know that Jordan saw any articles hauled there.
It was also proven that it was cold weather, and that there were snow and sleet on the ground, and on the roof of the house.
Which, the bill of exceptions states, was all the evidence introduced in behalf of either party.
The jury returned a verdict in favor of the plaintiff, and ■assessed his damages at $1,000. Motions for a new trial, and in arrest of judgment were overruled, and the defendant appealed.
It will be observed that there is no evidence, whatever that Clifton, in whose name the suit was brought, was the owner of the house, or the lot on which it was situated, or had any interest in either, or that the contract for storing the furniture in the house was made with him, or by any one acting for him. On the contrary,' the evidence conduces to prove that Jordan, for whose use the suit was brought, was the owner of the house, and that the contract was made with him. The suit being brought in the name of Clifton, there should have been some evidence that the legal right of action was in him. 1 Arch. Nisi. P. 548.
One of the grounds of the motion for a new trial is, that the verdict was without evidence to sustain it, and the counsel for appellant insisted that there was no proof of a right of action in the plaintiff. We are not at liberty to overlook so fatal an omission in the evidence as set out in the bill of exceptions.
The plaintiff below asked the defendant to give the jury three instructions, the first and third of which were given against the objection of the defendant. They are as follows:
(1.) “If the jury believe from the evidence, that Jordan rented the house to Brooks for the storing of furniture, and that it was so understood between the parties at the time; and if they further believe from the testimony that the defendant stored other and heavy articles in said house, by reason whereof said house fell down and was destroyed, then the jury must find for the plaintiff in the amount of damages proven to have been sustained by him by reason of the same.
(3.) “If the jury believe from the testimony that there was a special agreement for the rent of said house for the storing of certain articles only, and defendant stored articles by reason of which said house fell down, the mere fact that Jordan knew of said defendant so storing said other articles, and failed.to express any dissent thereto, would not change the original contract of rent between the parties; and if the jury find that there was such a specific contract, and that said building was broken down by the storing of other articles, then they musk-find for the plaintiff in the sum of damages proven to have been sustained.”
The legal propositions asserted in these instructions are believed to be correct.
Most unquestionably, if Brooks rented the house for the purpose of storing furniture in it, and in violation of.'his contract stored heavy articles therein, by means of which it was destroyed, he is responsible in damages to the person having the legal right of action against him. Edwards on Bailments, 327; Hooks vs. Smith, 18 Ala. 338.
If the lessor expressly or impliedly consented to the heavy articles being stored in the house, and thereby waived the terms of the original contract, the tenant would be released from responsibility for the consequences that followed from the stor ing- of the heavy articles; but the mere fact that the lessor knew that the heavy articles were being stored in the house — in other words, the fact that he knew that the contract was being violated — and failed to dissent, would be no waiver of the terms of the contract. The tenant was bound to observe the terms of the contract, and if he chose to violate its terms, he acted at his peril regardless of the knowledge of the lessor. Hatchett & Bro. vs. Gibson, 13 Ala. 588.
The defendant moved the court to instruct the jury as follows:
1. “If the jury believe from the evidence, that the plaintiff did not, in entering into the contract of the lease of the store house in controversy, limit or circumscribe the right of defendant to store solely articles of furniture therein, the defendant had the right to store therein such groceries or other articles of merchandize as are generally placed in a store house by persons doing a mixed business of the buying and selling of goods, wares and merchandize, and could only be held liable by voluntary negligence in storing in the house such a large amount of goods, etc., as would not be warranted by the strength of a store house of due and reasonable strength, adapted to such business and purposes.
2. That a lease or hiring being proven for the purpose of storage of goods, the law will require that the house was suitable for the business proposed, so far as a defendant would be held liable; and it devolves upon the plaintiff to show that he expressly limited or circumscribed the right of defendant in relation to the nature or character of the goods to be stored therein, and that defendant understood and assented to such limitation.
3. “ That under the present form of action plaintiff cannot recover in any event unless he proves the special contract as laid in the declaration.”
The court gave the third instruction, which cut off the right of plaintiff to recover on the second count of the declaration, there being no averment in it of a special contract for the storing of particular articles in the house.
The court refused the second instruction, and properly, we think, in view of the evidence before the jury.
The court gave the first instruction, in connection with the following:
“ In order for the plaintiff to recover it is necessary for him to prove that the contract was to use the house for the purpose of storing furniture only, and that the loss arose from his storing other articles] if these facts be proven, they will find for the plaintiff, if not, for the defendant.
“The fact that plaintiff knew without objection that the defendant stored groceries in the building, is competent to be considered for the purpose of ascertaining whether the lease to store was general or special, and for no other purpose.”
The defendant objected to the instructions so given by the court, of its own motion, in connection with the first instruction moved by him; but we perceive no substantial objection to them — none at least that defendant could complain of, in view of the evidence in the case.
Upon the motion in arrest of judgment, it is insisted that the action should have been trespass and not case, but we think case was the appropriate remedy for the cause of action set out in the first count in the declaration, upon which count we suppose the jury must have found their verdict, under the instructions of the court, though the finding was general.
The injury complained of was the consequence of storing the heavy articles in the house, in disregard of the special contract alleged, and not the immediate result of force.
For want of proof to sustain the verdict, as above indicated, the judgment must be reversed, and the cause remanded, with instructions to grant a new trial.' | [
-80,
110,
-36,
-100,
24,
-32,
40,
-8,
114,
-95,
-26,
-45,
-87,
-37,
1,
107,
-9,
79,
-43,
123,
-58,
-73,
7,
-21,
-46,
-37,
83,
-35,
-72,
108,
-27,
-41,
76,
96,
-54,
-105,
71,
-64,
-59,
28,
-50,
1,
57,
-32,
-39,
72,
52,
58,
20,
11,
53,
30,
-13,
46,
28,
-61,
105,
44,
-21,
41,
112,
-70,
26,
31,
-19,
22,
51,
38,
-52,
5,
74,
124,
-112,
49,
-128,
-8,
115,
-74,
70,
116,
111,
-119,
9,
102,
99,
3,
29,
-53,
-96,
-88,
46,
126,
-67,
-90,
16,
65,
1,
73,
-65,
-99,
124,
16,
23,
114,
-25,
-43,
25,
44,
7,
-113,
-106,
-95,
15,
40,
-108,
30,
-21,
3,
49,
97,
-49,
-50,
89,
5,
48,
-101,
-98,
-7
] |
Mr. Justice Compton
delivered the opinion of the court.
The appellant was convicted in the Hot Spring Circuit Court and fined five dollars for retailing spirituous liquors contrary to the statute.
On the trial, it appeared that the County Court, at the July term, 1860, had granted to the appellant license to retail spirituous liquors in quantities less than one quart, for the term of six months from the 13th day of May, 1860; it also appeared that the appellant had retailed at a period between the 13th May, and the granting of the license in July iollowing. The counsel for the appellant moved the court to instruct the jury, that upon this state of facts, they should acquit, which the court refused to do, and instructed them that they should convict. The counsel then insisted on arguing to the jury touching this question of law, that he was right, and the court wrong, but the court refused to permit him to do so.
By retailing without a license the appellant was indictable under the statute, Gould’s Dig. ch. 160, sec. 2; 8 et seq.-, and though jurisdiction is conferred on the county court to grant a license, in such cases, to operate prospectively, yet it has no jurisdiction or power to make the license operate retrospectively; or in other words, to cure a past offence, or legalize a crime.
The proposition, that in a criminal prosecution, the counsel for the accused has the right to argue the law to the jury, has been much discussed in this case. The facts in the record, however, do not require a decision upon the point; for whatever may be the rights of the counsel under other circumstances, he will not be permitted, after he has called on the court to declare the law, to appeal to the jury and argue that the decision of the court was erroneous.
We think the other objections relied on as grounds for reversal, are not well taken.
Let the judgment be affirmed. | [
-16,
-22,
-36,
30,
26,
-32,
34,
-66,
65,
-21,
-90,
-77,
-83,
66,
12,
97,
-69,
127,
85,
123,
-52,
-90,
7,
65,
-14,
-37,
-40,
-59,
-79,
108,
-26,
-3,
76,
48,
74,
117,
102,
73,
-63,
-48,
-50,
9,
-71,
-56,
-16,
-118,
48,
26,
99,
11,
97,
-97,
-29,
46,
28,
-53,
41,
44,
73,
61,
80,
-8,
-104,
-99,
13,
4,
-79,
48,
-99,
-121,
-8,
46,
-104,
17,
0,
-8,
123,
-108,
-128,
84,
15,
-69,
13,
102,
98,
1,
61,
-17,
-24,
-23,
47,
94,
-99,
-89,
-40,
89,
75,
72,
-66,
-35,
126,
20,
-121,
116,
-22,
-44,
-40,
60,
5,
-50,
-106,
-95,
-113,
56,
-110,
68,
-53,
35,
81,
117,
-49,
-2,
92,
68,
48,
-101,
-113,
-108
] |
Mr. Justice Fairchild,
delivered the opinion of the Court.
“We the undersigned agree that the foregoing debits and credits are correct, and subject to the settlement of accounts between A. Harlan & Co., and Bernie & Meyer. June 17th, 1856.
GEORGE S. BERNIE,
A. HARLAN.”
This was an endorsement at the foot of an account of merchandize sold, and credits given in 1847; the account being rendered by Bernie & Meyer for the use of George S. Bernie» against A. Harlan & Co.
The plaintiff in error complains that he was not discharged from the action of assumpsit, brought against him in the Circuit Court, on his plea of limitations; while the defendant in error maintains that the judgment he obtained ought to be affirmed» as the endorsement discloses a cause of action accruing from its date, maintainable upon the new promise implied therein, which would be good under the count for an account stated: And that, as an acknowledgment in writing, it withdraws the case from the effect of the - statute, though the action be construed to be founded on the original account.
It is the doctrine of this court, and is the law, that a written acknowledgment of a debt, or promise to pay it, is to be considered as a removal of the statute bar from the original cause of action, and not as a new contract, or as a foundation for a new suit, that could hot be supported upon the old contract. Biscoe vs. Stone, 6 Eng. 40; Biscoe vs. Jenkins, 5 Eng. 119.
Considering, then, the action as founded upon the original account, is the endorsement a sufficient acknowledgment of the debt, or promise to pay it, to defeat the statute of limitations? While our statute has not defined the requirements of such written acknowledgment . or promise, the decisions of this court leave no doubt as to what its character should be. And they are, that the promise should be an express promise to pay the debt, which is taken as an acknowledgment that the debt is due, or an unqualified acknowledgment of the debt, as one that is due, in whole or in part. Alston vs. The State Bank, 4 Eng. 485; Brown vs. The State Bank, 5 Eng. 134; Beebe vs. Block, 7 Eng. 597; Grant vs. Ashley, ib. 764,
These decisions are of themselves our guide, but they are fully accordant with and supported by the general consent of all approved English and American authorities. The endorsement contains an acknowledgment that the items of the account are correct, but it does not acknowledge that the balance named at the foot of the account is due — on the contrary, it excludes such a conclusion, by making the account “subject to a settlement of accounts between A. Harlan & Co., and Bernie & Meyer. It is not an acknowledgment that the account, or any part of it, is due from Harlan & Co. to Bernie & Meyer, but that upon a future settlement between the parties, the balance set down shall be considered, in that settlement, as the adjusted claim of Bernie & Meyer, to be affected as it may by the account of A. Harlan & Co. against Bernie & Meyer. The endorsement goes for nothing without such settlement. In Sutton vs. Burriss, 9 Leigh 384, 386, it is held, that the acknowledgment of the correctness of an account, with the claim of its being subject to off-sets, will not prevent the bar from attaching to the account, as it was not an acknowledgment of the account being due.
Like the case of Sloan vs. Sloan, 6 Eng. 32, this was not a settlement of mutual accounts, and striking a balance between them, whereby the set-off of the smaller account should be converted into.a payment towards the larger. Unlike that case, there was in this, no promise to pay any sum; but like it, the parties ran over the items of account of one of the parties, which did not change their legal relations. In that case, the verbal promise to pay the amount agreed upon was held insufficient to deprive the plaintiff in error of the benefit of the statute, and the same resplt must attach to this case, because that which is relied on as a written acknowledgment, is not so> being qualified by the condition of a subsequent settlement, and not being an acknowledgment of any debt being due.
The Circuit Court regarded the endorsement as a sufficient acknowledgment to remove the bar from the original demand, or to be a good new promise to uphold this suit; in which it erred, and its judgment must be reversed.
We have passed upon the merits of this case, notwithstanding that, on the part of the defendant in error, there was no special replication of the written acknowledgment within three years to the plea of limitations; and notwithstanding, on the part of the plaintiff in error, the case was subject to affirmance, under the rule that requires a party complaining of the finding and judgment of the court sitting as a jury, to move for a new trial, or for declarations of the law applicable to the case. The defect in the latter case is, in the non-observance of a rule of practice, which we have always held fatal to the review of a judgment, when the objection is made here, but which we are inclined to overlook, when not insisted on by the opposite party. Such is the waiver of this point in this case, by the argument of the defendant in error. It is only upon a question of jurisdiction, or some vital point affecting the merits of a case, that we can consent to put ourselves in the ungracious, and generally unbecoming attitude of determining a case upon the points not raised by the counsel in charge thereof.
And as to the pleading adopted by the defendant in error, we need only say-that the replication was met by issue, and being pleaded in short upon the record, a mode of pleading much to be encouraged when applicable, we are inclined to consider it as a special replication, setting up the written endorsement. This would have to be so considered to uphold it, had any objection been made to the introduction of evidence under it, for its generality. And in this we follow a previous decision of this court. Higgs vs. Warner, 14 Ark. 194. See also Alston vs. The State Bank, 4 Eng. 462. | [
-12,
110,
-40,
92,
74,
96,
42,
-38,
84,
33,
-73,
83,
-7,
-61,
20,
113,
-15,
109,
117,
106,
87,
-77,
55,
65,
-46,
115,
-37,
-43,
-79,
-4,
-10,
85,
76,
56,
-54,
-35,
102,
-118,
-51,
28,
-50,
4,
57,
77,
-15,
-28,
48,
29,
20,
78,
101,
-92,
-29,
46,
30,
75,
105,
41,
77,
45,
-48,
-80,
-118,
-123,
117,
86,
51,
100,
-102,
103,
106,
52,
-128,
49,
1,
-24,
114,
-90,
-58,
-12,
107,
-71,
40,
114,
103,
0,
-79,
-23,
-100,
-104,
6,
-4,
15,
-90,
-111,
92,
-117,
41,
-65,
-99,
126,
16,
-121,
-10,
-2,
-35,
29,
108,
11,
-114,
-106,
-79,
-113,
118,
-98,
17,
-9,
39,
-112,
97,
-51,
-92,
93,
-121,
56,
-109,
-122,
-14
] |
Mr. Justice Fairchild
delivered the opinion of the Court.
Without any discussion it may be taken to be the general rule, and well settled by the authorities, that no confession of a crime can be given in evidence against a defendant, unless it was freely and voluntarily made, and that such must be shown to be the character of the confession, before the prosecution can use it as evidence. 1 Grecnleaf’s Ev. sec. 219; The State vs. Guild, 5 Halst. 180; 1 Ph. Ev. (4th Am. Ed.) 542. Where confessions have been made under the influence of threats or pro' mises, and are, therefore, inadmissible in evidence, it is often to be ascertained, whether subsequent confessions are to be traced to the same influences of fear and hope, that may induce the party to persevere in a false confession, and are therefore inadmissible, or whether they are to be taken as free and voluntary statements, and hence capable of being used as testimony. This is a question that can be answered only by legal authority _ The following is the oldest authority to which we have been re. ferred : “ When a person has been induced to confess upon a “ promise or threat, it is the common practice to reject anysub- “ sequent confessions of the same or like facts, Ihough at asub- “ sequent time.” 2 East Pleas of the Crown 658. And the law upon this subject is clearly and fully laid down by a writer of high authority: “If a'confession has been obtained from the “ prisoner by undue means, any statement afterwards made by “ him under the influence of that confession cannot be admit, hted as evidence.” Russ, on Crimes 832: And further, on page 835, we read : “ But although such improper inducements may “ have been held out to a prisoner, as would exclude a confes- “ sion made under their influence, yet if the court taking into “ consideration all the circumstances of the case, should be of “ the opinion that, at the time the confession was made, such “ inducements had ceased to operate upon the mind of the pri- “ soner, such confession will be admissible. In determining “ when an inducement had ceased to operate, it will be mate- “ rial to consider the nature of such inducement, the time “ and circumstances under which it was made, the situation of “ the person making it, the time which has intervened between “ the inducement and the confession, and whether there has “ been any caution given, and if so, whether the caution has “ been given generally, or expressly and specifically with refer - “ ence to the inducement held out.” And the general rule is, that when a prisoner has been induced by promises or threats to make a confession, which is for that reason inadmissible, the influence of the motives prompting the confession will be presumed to continue, and to have produced the subsequent confessions, unless the contrary is shown by clear evidence. 1 Greenleaf’s Ev., s. 221 ; 1 Ph. Ev.’551; (4111 Am. Ed.) and note 157, page, 553.
Such being the law, its applicability to the facts of this case remains to be seen.”
The defendant was tried for the murder of Oschner, at the April term ’GO, of the Circuit of Washington county, and was convicted of murder in the first degree, solely upon evidence of his confessions of the crime. A crowd of persons, one hundred and fifty, or two hundred in number, were assembled at the place where Oschner’s dead body was found, and the avowed object of the assemblage was to ascertain the murderer. A general committee of twenty was formed to give shape and concert to the efforts to be made for the discovery of the perpetrator of the crime ; by whom a special committee of three was detailed to prosecute the enquiry. Suspicion being fixed upon the defendant, he was sent for, was brought to the place of assemblage, was put in charge of the committee of three, was taken away from the crowd, was told that the committee were satisfied that he had killed Oschner, and that it would be better for him to confess, that his brother had confessed, and a written statement of his was read to him. Kidd, one of the committee, told the defendant that the committee would do all they could to save him, although they did not know that they could do so, that he was not the person they were after, but that such person was Ackridge, who they believed had instigated the defendant to commit the murder. Up to this time the defendant denied the charge, when he was confronted with his brother, who had made the written statement mentioned, and who said to the defen dant concerning it: “ Jarrett you know it is true.” Then the defendant confessed the murder, after having for a half or three quarters of an hour protested his innocence, and after he had been assured of protection by the committee. Bean, another of the committee of three, testified, substantially, to the same facts as Kidd, and said further, that the defendant seemed to be afraid of Ackridge, from whom the committee promised he should be protected, as also from every body else, who might be incensed at him, or should desire to injure him on account of his confessions.
These confessions were made the day before the defendant was taken to Fayetteville, where he was confined for a month in default of bail of five hundred dollars, which the magistrate exacted of him for his appearance as a witness against Ack-ridge. During the month that the defendant was confined in Fayetteville, he made frequent confessions like the one he made to the committee, always admitting that he shot Oschner, that he did it at the instance of Ackridge, who was to give him fifteen dollars for the deed — these confessions are spoken of by the persons to whom he made them, as being made freely, without any promise or threat from them, but without caution by them, or either of them, to the defendant, against the consequences of the confessions.
These latter confessions made at Fayetteville, if the only confessions that had been made by the defendant, would have been evidence against him, according to the law as defined by Green-leaf, and as applied by this court, though -.the defendant was not w'arned that his confessions would be used against him. 1 Greenleaps Ev. s. 229; Austin vs. State, 14 Ark. 562. Yet it will be remembered that the American text writer carries the admissibility of confessions further than the English writers, and to an extent that this court, in the case cited, expressed a disinclination to follow, except upon a close examination of the authorities.
By all the authorities, the confessions made to the committee were inadmissible, and this was taken for granted.by the prosecution in this case, which made no attempt to introduce them, but confined itself to the Fayetteville confessions. But we have seen that they were incompetent evidence on account of the incompetency of the first confessions, unless it had been clearly shown by other evidence, that the influences, which induced the first confessions, had ceased to operate upon the mind of the defendant. There is no such proof in the case. On the other hand, every circumstance connected with the defendant’s stay at Fayetteville, and with the confessions made by him there, confirm the idea that he was relying upon the promise of protection he had received from the committee of three, and which he might also hold to be a compact between himself and the assemblage which the committee represented. He was not proceeded against himself; being detained only to be a witness against Ackridge, he might regard his detention without any charge being made against him, as the fulfillment of the promise of protection made to him, as a confirmation of the assurance made to him by the committee, that it was not himself, but Ackridge, that they wished to see punished, while his continued confessions might be regarded as in performance of his part of the agreement with the committee.
We are clearly of the opinion, that the confessions made at Fayetteville ought to have been excluded from the jury ; and for the reasons assigned by the defendant, that the first confession was made under the influence of fear, and the hope and promise of protection, and that such influence was presumed to continue to the time of the subsequent confessions, unless shown to have been removed, and that there was no evidence tending to show the removal of such previous influence. 1 Ph. Ev. (4th Am. Ed.) 543, with the previous authorities ; Regina vs. Besinell, 1 Car. & Marsh. 558.
The third instruction moved for by the defendant presented nearly the same question as the motion to exclude the Fayetteville confessions, in the form of a declaration of law to the jury. Even conceding that the subsequent confessions might go the jury, the court was w’rong in rejecting the third instruc tion as it correctly stated the law. We do not set forth the instructions, not thinking it necessary for an understanding of the point, but it was the converse of the following proposition, which the court upon its own motion, and against the objection of the defendant, submitted to the jury : “ That it had been argued by “ the counsel for the defendant, that after it has been shown “ that confessions were made by the defendant under the influ- “ ence of fear or hope, that the impressions so made are pre- “ sumed to remain on the mind of the defendant at the time of “ making the subsequent confessions, unless shown to have been “ removed ; but that such was not the law. That the confes- “ sions made before the defendant was brought to Fayetteville, “ were not before them, and that they had nothing to do with “ them in considering the confessions introduced and given in “ evidence by the State.”
We cannot conceive of any proposition advanced as law, more inconsistent with legal principle, or more against the current of legal authority. How different is this charge from one given in a case where the subsequent confessions were allowed to go the jury :
“ It is said that all subsequent admissions of the same or of “ like facts, should be overruled, because they may have pro- “ ceeded from the same influence.
“ Confessions have been admitted before you by the court, of “ the same or of like facts, made afterwards, (some months after- “ wards,) and which by the application of the above principle “ in its full extent, would have been rejected. These latter “ confessions were received, because the court deemed that al- ‘‘ though an original confession may have been obtained by im “ proper means, subsequent confessions of the same or of like facts “ may be admitted, if the court believe from the length of time “ intervening, from proper warning of the consequences of con- “ fession, or from other circumstances, that the delusive hopes “ and fears, under the influence of which the original confes- ‘‘ sion was obtained, were entirely dispelled. Under this im- ‘‘ pression of the law, the court with some hesitation, admitted “ the confessions; and having been admitted, it is your duty to “ consider them ; and to consider with reference to the manner “ in which the first confession was obtained ; and if you are “ not satisfied that these latter confessions were made freely “ and unhesitatingly, and wholly free from any expectation of “ benefit, raised by the hopes and promises preceding the first “ confession, or from his continuing to tell a uniform story, (i it is your duty to reject them from your minds, and not to make “ them the foundation of your verdict.
“ Under all the agitation, fears and possible, if not probable “ hopes, produced by these circumstances, he made his first con- “ fession, and immediately after, the one before the magistrate! “ The court thought these first confessions, thus obtained, should “ be overruled.
il You will next call to mind the circumstances calculated to “ remove this influence, if it existed, and make the subsequent “ confessions lawful. These latter confessions were made in “ February, 1828, some months after the first: but you will re- “ collect that they were made after an interval of silence, and “ under new circumstances, and in a new situation; but the “ boy was taken to gaol, and there was a continued series of “ conversations and confessions, without lapse of time or other “ favorable circumstance to bring him to reflection upon his “ awful situation, or the danger of these unguarded and thought- “ less confessions.” State vs. Guild, 5 Halst. 172, 173.
In this case, there were no circumstances, such as length of time, an interval for reflection, a criminal accusation, information or warning not to depend upon the promises of protection the defendant had received, or any thing else tending to break the uniformity of the confessions he had made to the committee; but the natural effect of his condition, and of all the attendant facts disclosed in the. transcript, was to induce him to a continuance of the confession, his fears of a summary punishment from.an exasperated community, and of private injury from Ackridge, and his hopes of protection from all these impending evils, had extorted from him. Hence, in this case, the subsequent confessions after proof of the original confession and its circumstances, should have been excluded from the jury. But if admitted, law and humanity required that the last confessions should be taken with the first, and with instructions that they should be disregarded, unless found to be free from the influences which produced the confession to the committee.
Confessions are rejected or received in evidence with cautioi}, not from tenderness which the law has for the life or liberty of an alleged criminal, although such is deemed innocent until proved to be guilty, but because the law does not wish a man to be convicted upon false testimony, and because it distrusts the truth of confessions extorted by fear, or induced by the hope of avoiding an accusation, or escaping an apprehended punishment. Every man can but hope that the defendant’s confession should be disbelieved, or distrusted as being false, or not to be depended upon as true. For it is humiliating to human nature, alarming to human life, to think that there can be a man in a Christian country who would buy or take the blood of a fellow creature, and for the paltry pittance mentioned by the defendant in his first and after confessions. If such be true, it is greatly to be regretted that the law could not speedily take away the power to commit crime, for inducements to its commission will never be wanting to persons so easily tempted.
But it is in precisely such cases, where the atrocity of the crime makes the criminal abhorrent, that the safe-guards of the law must be well protected, that the just punishment of the guilty may not be a precedent or excuse for the illegal conviction of the innocent. Doubtless an adherence to such rules of law as the court below failed to observe, and as we are called upon to enforce, may sometimes screen the undeserving from merited punishment; but there is no safety for the greater portion of society, that is, the observers of the law, wdthout preserving with strictness the integrity of legal rules that protect against perjury and wickedness, as well as against the weakness of those v'ho are wrongfully suspected or accused of criminal acts.
Let the judgment of the Circuit Court of Washington county be reversed, and the defendant’s motion for a new trial be sustained, that he may be tried upon legal evidence. | [
-80,
-24,
-20,
-65,
42,
96,
-70,
-72,
-47,
-57,
119,
51,
-81,
90,
20,
51,
59,
103,
116,
65,
93,
-73,
23,
73,
-10,
-13,
82,
-43,
-79,
125,
-10,
124,
13,
-96,
-54,
-43,
102,
-40,
-61,
82,
-50,
13,
-120,
-30,
-46,
18,
36,
21,
86,
15,
113,
86,
-29,
42,
20,
-49,
-119,
40,
75,
61,
-48,
48,
30,
-49,
-119,
52,
-77,
32,
-100,
77,
-8,
46,
28,
17,
1,
-22,
49,
-106,
-128,
-12,
79,
-85,
44,
98,
-30,
1,
-52,
106,
-20,
-59,
63,
106,
-67,
-90,
84,
72,
105,
109,
-107,
-39,
54,
16,
38,
106,
-1,
85,
29,
36,
1,
-61,
-108,
-93,
9,
124,
-112,
56,
-53,
-123,
19,
113,
-59,
106,
84,
99,
26,
-39,
-98,
-76
] |
Mr. Justice Fairchild
delivered the opinion of the Court.
This suit having been begun in March, the trial being in the succeeding May, the absent witness named in Fowler’s application for a continuance residing in western Texas, so that according to the affidavit for a continuance there had not been time for Fowler to procure his testimony, the application would doubtless have been successfully addressed to the discretion of the court, had not the question been raised of its inadmissibility under the pleadings of Fowler.
The object of the testimony desired was to prove certain items in the set-off of Fowler, of an older date than three years before the set-off was filed, to which Badgett had replied the statute of limitations, and which Fowler had met by a general rejoinder.
And when the court, upon motion of Badgett, had announced that the testimony was not admissible under this general pleading, Fowler asked leave to file a special rejoinder, setting up such new promise and Undertaking by Badgett as should make the testimony applicable to the issue. This the court refused, as it did also, the continuance asked for, which make up the complaints of the first bill of exceptions.
We need not decide upon the application for a continuance as disconnected with the state of the pleadings. And in view of that, the whole question presented by the bill of exceptions is an application to be allowed to file a special rejoinder to the statute of limitations pleaded to the set-off.
It is greatly to be desired that the discretionary power of Circuit Courts should be so exercised as to afford parties an opportunity of presenting the facts of a case, and thus ensure a decision upon its merits. It should be a rule with all courts in-the exercise of discretion so to use it as not to cut off a party from the ascertainment of an asserted right. When the effect of such a decision will be, on the one hand, to save one party from serious injury, and cannot, on the other hand, burden any party to an extent to be compared with the consequences of an adverse decision, the discretion should be controlled by what will follow its exercise. That is to use discretion discreetly, working no needless wrong and inconvenience, to do which the law abhors.
Yet it is a delicate thing and n.ot to be lightly undertaken for a superior court to interfere with the discretion of a court of original jurisdiction. Acting upon this principle and applying, it to the subject of filing additional or amended pleadings, this court has discouraged attempts to induce it to control the decisions of the Circuit Courts. Pennington vs. Ware, 16 Ark. 121; Mandel vs. Peet, 18 Ark. 247.
It had been determined by a series of decisions of this court, that a fact relied upon to avoid the operation of the statute of limitations must be specially pleaded, so as to have become the well settled law before the defence of limitation was interposed to Fowler’s set-off. Walker vs. Bank of Mississippi, 2 Eng. 504; Ringgold vs. Dunn, 3 Eng. 499; McClellan vs. The State Bank 7 Eng. 143; State Bank vs. Conway, 13 Ark. 346. And finally in Ruddell vs. Folsom, 14 Ark. 213, decided in 1853, all the foregoing cases were cited; and it was contended that no such rule of pleading could apply to part payment, as by pay'ment within the bar it never did attach, but the court broadly and emphatically decided that part payment, like other facts that avoided the effect of time, ought to be specially pleaded. Since that decision, the rule of pleading in this State does not seem to have been seriously questioned, and must be taken to have been sufficiently announced to be understood by the legal profession.
Whether the Circuit Court was influenced solely by the law of these decisions being well known, or by that and other considerations we do not know, but in its discretion it refused Fowler’s application to file a special rejoinder, and we cannot reverse the judgment therefor, though we might have been better satisfied with it had the application been granted.
When Badgett responded to Fowler’s petition for discovery, that certain payments had been made by Fowler to him, but not on account of the bonds sued on, and that Fowler’s servant had worked for him to the amount charged, but that it had been paid for, Fowler could not separate the admission of payment and labor from the statement showing that no allowance should be made for such items in this suit.
By our statute the answer to a petition for discovery is evidence, as an answer to a bill of discovery would be in equity. Gould's Dig. sec. 97, ch. 133; Hill vs. Cawthorn, 15 Ark. 31. And an answer to a bill for relief that admitted the charges and at the same time claimed and showed their payment, would be taken as responsive to the bill, and the defendant would be allowed to read the explanations qualifying the admission. 2 Dan. Ch. Pr., (1st Am. Ed.) 978. And this whether the qualifications are in the same passage with the admission, or if disconnected in grammatical construction, or separated by the intervention of other subjects. Bartlett vs. Gillard, 3 Russ. 157; Reede vs. Whitchurch, 3 Sim. 562; Nurse vs. Bunn, 5 Sim. 225.
The rule contended for does not apply to answers to bills of discovery, but to answers to bills for relief, wherein the grounds of relief set forth in the bill are admitted, but are avoided by independent and affirmative matters showing that the relief prayed for ought not to be granted.
When the new matter is mere pleading to found a defence upon, it must be proved; but when responsive to the bill, though affirmative in form, if in effect a denial of the charge in the bill, and directly responsive thereto, it is evidence to be taken as true till disproven, not pleading whose truth is to be established by evidence. Roberts vs. Totten, 13 Ark. 614, 617; Wheat vs. Moss, 16 Ark. 251, 252; Cushman vs. Shepard, 4 Barb. 123, 124.
But in answers to bills of discovery, until an order of court made in 1841, the rule was the same in equity as in law, that the whole answer should be read if offered in evidence. 2 Dan. Ch. Pr. 979; Lady Ormond vs. Hutchinson, 13 Ves. 53.
The rule of the English court adopted in 1841, applying the same rule to reading answers to bills of discovery as to bills of relief, has not been incorporated into our practice.
But upon this statutory remedy, this court has held that to read the answer makes it evidence. Field vs. Pope, 5 Ark. 71. And in Turner vs. Miller, 1 Evg. 465, 466, where the petition for, and answmr of discovery are given, the answer, although more subject to expurgation than the answer here, was pronounced by the court to be conclusive against the petition, lb. 468.
The court should not have given Badgett’s fifth instruction to the jury wdthout the addition, that the appearance and labor of the defendant were circumstances to be considered in finding whether there was an employment or retainer of defendant by plaintiff.
An appearance by an attorney in a case, the preparation of the pleadings by him, are facts to be considered by the jury in determining upon his employment; and an instruction, that a retainer must be proved independent of them, was calculated to mislead the jury.
Yet under the pleadings, and under the express direction of the court given in the sixth instruction, the fifth instruction could operate only on the two twenty-five dollar charges for suit with Spence in the Circuit and Supreme Courts, and we conclude that the jury deducted these amounts from their damages before making up their verdict. For, by computation, we find the damages awarded in the verdict about fifty dollars less than the interest on the bonds from their date to the time of the verdict; and we presume that the damages were not lessened by the twenty dollars paid to Crawford, for Badgett was not connected therewith, nor by the forty dollars paid in the.barber’s shop, nor by the fifty dollars for the wmges of the servant, for those sums rested upon Badgett’s answer to the petition for discovery, and were in it denied to be due. Hence, notwithstanding the dangerous tendency of the fifth instruction, it did not injure Fowler.
The other facts noted in the various bills of exceptions are not pressed upon us as causes of reversal; and they would seem to be subject to the objection of not being covered by a pleading sufficiently special to admit them in evidence, or to need to be accompanied by other facts- less remote in their bearing upon the case, to make them available for Fowler.
Judgment affirmed. | [
-80,
-22,
116,
62,
11,
-32,
48,
-74,
121,
-86,
103,
81,
-83,
-38,
-124,
123,
-6,
43,
85,
107,
71,
-73,
70,
65,
-26,
-13,
88,
84,
-15,
83,
-26,
95,
76,
56,
-54,
-43,
102,
-53,
-115,
16,
-114,
-123,
-103,
108,
88,
6,
48,
113,
114,
15,
17,
-33,
-29,
42,
24,
-49,
-24,
40,
-53,
61,
80,
48,
-98,
12,
95,
1,
-77,
39,
-98,
-57,
120,
62,
24,
57,
1,
-4,
114,
-74,
2,
-12,
47,
-101,
8,
98,
98,
1,
105,
-25,
-100,
-120,
110,
63,
-99,
-90,
16,
72,
-85,
13,
-66,
-99,
116,
20,
7,
126,
-27,
69,
30,
36,
3,
-113,
-106,
-93,
-57,
116,
-124,
18,
-29,
35,
-112,
113,
-50,
-30,
92,
71,
51,
-103,
-114,
-118
] |
Mr. Justice Fairchild
delivered the opinion of the court.
The appellant, who was the defendant below, pleaded two pleas to an action of debt founded upon a note to the appellee. The first was a general plea of no consideration. The second plea stated that the note was given towards the payment of a piece of land, to which the plaintiff represented that his wife had a good swamp land title, whereas the fact was, that the land was not swamp land, and had, before the entry of the land under which the wife of the plaintiff claimed it, been entered in the United States Land Office at Helena.
To the second plea the plaintiff replied that at the date of the note, and purchase of the land by the defendant, the plaintiff held the certificate of the swamp land agent at Helena for the land, which had been issued to Eli. J. Bridges, and by him had been assigned to the plaintiff’s wife, while she was a single woman, that the defendant then well knew what title it was that the plaintiff’s wife had to the land, and had often applied to the plaintiff, since his marriage, to purchase the land, while knowing what the title was by which the plaintiff held the land, and that at the date of the note the defendant announced himself willing to pay seven hundred dollars for the land, if the plaintiff and his wife would jointly assign and deliver to him the swamp land certificate mentioned, and would also make and deliver unto him a quit claim deed to the land, so as to convey to him such title as they had thereto and no other. And that accordingly, on the 21st December, 1855, the defendant paid a part of the consideration for the land, and delivered his note, now sued, for the residue ; that the plaintiff and his wife did jointly assign the swamp land certificate to the defendant and deliver it to him, and also made, delivered and acknowledged their joint deed of quit claim, which said certificate and deed the defendant then accepted, and declared himself satisfied therewith; that by virtue thereof the defendant entered into the possession of the land, and is still in peaceable possession of it and its improvements.
The defendant proved that the land had been entered in the United States Land Office, but did not prove any representa-, tions to have been made by the plaintiff of the goodness of the title which his wife had to the land under the swamp land entry of Bridges.
The purchase of the land by the defendant from the plaintiff, by the assignment of the certificate, and the acceptance of a quit claim deed, which are shown by the testimony, was a sufficient consideration for such price as the defendant should choose to give. He has not pleaded a defect of title, otherwise than by his plea of no" consideration ; and under the second plea, the representations of the plaintiff not being proved, he is not entitled to relief from payment of the note in suit. His remedy for defects of title must rest upon covenants in his deed, and if his deed have no covenants, that does not give him the right to resist payment of the purchase money of the land. Hoppes vs. Cheek, Oct. Term 1860 ; McDaniel vs. Grace 15 Ark. 487. Tune vs. Rector 21 Ark. 285.
Bridges was not an interested witness. His assignment contains no warranty of the title passed by the certificate, it implies none. His testimony, so far as it relates to matters not witnessed by the papers about which he testified, is competent. It is legal in its narration of what Alexander said abouthaving bought the land, how much he was to pay, or had paid for it, what sort of a deed he was to have, and that the deed had been executed and delivered.
The legal propositions submitted by the parties present mainly the same questions that are to be gathered from the pleadings, and need not be particularly noticed, as it is evident the defendant could not have been prejudiced by them. Some of them, as those about possession, may be abstract, or may not be, according to the construction put upon the testimony. That construction is of no importance, as it could not change the result of the case. The want of applicability of a legal proposition to a case submitted to the court, is not likely to have effect upon its finding, and is not to be scrutinized as if it were an instruction to the jury upon law, irrelevant to the issue.
We have thoroughly examined the extended argument of the counsel for the appellant, but finding nothing in it to alter the conclusions expressed in this opinion, think it unprofitable to pursue the subject further, and direct an affirmance of the judgment. | [
-16,
110,
-80,
-1,
-118,
96,
42,
-102,
89,
-95,
-92,
83,
-21,
-61,
20,
113,
-25,
-83,
113,
122,
87,
-78,
39,
97,
82,
-13,
-15,
-35,
-79,
-8,
-28,
-41,
76,
32,
-54,
-43,
102,
10,
-59,
-36,
78,
7,
9,
76,
-39,
-62,
48,
27,
66,
75,
117,
-114,
-29,
47,
21,
75,
45,
44,
107,
41,
64,
-80,
-97,
-107,
95,
7,
49,
100,
-100,
67,
-54,
46,
-112,
49,
1,
-24,
123,
-90,
-122,
116,
77,
-71,
40,
102,
98,
1,
-11,
-17,
-40,
-120,
14,
-2,
-99,
-90,
16,
88,
75,
96,
-66,
-99,
125,
16,
-121,
118,
-2,
-115,
29,
108,
11,
-113,
-106,
-95,
-113,
126,
-101,
67,
-21,
35,
49,
96,
-57,
-94,
92,
103,
56,
-101,
-114,
-106
] |
Mr. Justice Fairchild
delivered the opinion of the court.
Previous to April, 1857, May had been the Common School Commissioner of Union county, and as such, had received moneys belonging to several different townships in the county, which was shown by entries made by himself in a book kept by him as Commissioner. It was also proved, that May admitted that he held the amounts so entered as belonging to the different townships, and that he had not turned them over to his successor in office. Kelly proved that he was the successor of May in the office of Common School Commissioner, and that he had demanded ofMay the amounts in his hands as Commissioner, and that there were no trustees of any of the townships, either elected or appointed by the Commissioner upon petition of a majoiity of the householders of a township, no election having been held or petition made for such trustees. These facts were distinctly proved at the trial, and were proofs of what was alleged in tho declaration.
The action was against May, and his securities upon his official bond, as Common School Commissioner of Union county, and was to recover moneys belonging to several townships, which May had received as Commissioner of the county, and which he refused to pay over to the plaintiff below, his successor in office. The facts alleged, and the facts proven were of the same nature, and were identical, except in the particular sums belonging to the different townships, as to which, it was only important that the averments in the declaration should be large enough to cover the amounts shown by the evidence. The plaintiff below having fully established his case, and the defendants adducing no evidence, the court yet excluded from the jury all the testimony, leaving to them a charge made by the plaintiff against May, with nothing to support it, whence they necessarily found against the plaintiff.
The court erred in the exclusion of ffie evidence. Nothing was proved but what had been proclaimed by the declaration would be proved, and if the defendants wished to question the sufficiency of the facts for a judgment, they should have done so by demurrer to the declaration, and should not have been allowed to await the testimony, and if it turned out to be a losing adventure with them to have so waited, to obtain the same result, by excluding the testimony, that they could have obtained by presenting the legal point fairly made in the declaration, that May having funds in his hands as Common School Commissioner belonging to different townships in the county,was liable for not delivering them to his successor in office. When the declaration had been pleaded to, and evidence of a legal character introduced that fully supported it, the case made was for the jury, and the court exceeded its powers in withdrawing the trial from the proper tribunal.
But the ground upon which the action of the court is defended here, and which we suppose to have been the reason for ruling out the plaintiff’s evidence,we consider to be unsubstantial, an unsound construction of our school law. Several of the townships in Union county, as disclosed in the proof, had realized funds, arising doubtless from a sale of their sixteenth sections, and from the loan of money so arising. If there had been township trustees, these funds would have been subject to their direction, would have been in the keeping of the township treasurer, one of their number, under their control. Gould's Dig., chap. 154, see. 40, 42, 43, 44, 65. But it was specially alleged m the declaration, and shown in evidence, that the townships had made no election of trustees, and that they had not availed themselves of the legal right given in the 38th section of the same chapter, to have trustees appointed by the Common School Commissioner ot the county. This was an expression on the part of the householders of these townships, that ihey preferred that the Common School Commissioner should discharge the duties of trustees of the townships with relation to the school funds of the several townships. Section 61 of the same chapter.
This we think to be the manifest meaning of the law; a construction that should have been applied to this case, if the declaration had been met by demurrer, as disclosing no right of action in the plaintiff. But it was specially inappropriate for May to try to avoid responsibility to his successor, on the ground that the funds in question did not belong to the Commissioner, when his ovrn entries, from a book kept by himself, as Commissioner, showed that the money belonging to the townships was in his hands as Common School Commissioner oi Union county. Under the 31st section of the chapter quoted from, he had no excuse for not turning over to his successor the funds which never would have been in his own hands, but for his being Commissioner.
There is no inconsistency between our construction of the statute and the cases of Cloud vs. Danley, 16 Ark. 699, and Tatum vs. Tatum, 19 Ark. 199.
The defense in this case, as made below, and maintained here, is without legal merit and against conscience, and if judgment had been given below against the defendants, and they had appealed, we should have inflicted damages upon May for a vexatious appeal, but as the case stands, let the judgment of the Circuit Court of Unión county be reversed, with instructions to grant the new trial moved for by the plaintiff, and to proceed in the case according to law. | [
-12,
-20,
-12,
30,
10,
96,
42,
-102,
73,
-95,
-75,
115,
-83,
-37,
20,
125,
-9,
-7,
-48,
106,
75,
-77,
19,
99,
-78,
-13,
-39,
-35,
-79,
69,
-74,
-35,
77,
32,
10,
-99,
70,
66,
-63,
80,
-114,
13,
-88,
74,
89,
96,
52,
45,
114,
79,
49,
30,
-13,
46,
28,
-13,
105,
44,
-39,
-87,
64,
-13,
-82,
-57,
79,
13,
-109,
38,
-98,
-121,
-54,
46,
-112,
49,
2,
-24,
123,
-90,
6,
-43,
13,
-87,
41,
96,
102,
17,
-91,
-19,
-8,
-103,
30,
-1,
-115,
38,
-106,
72,
-30,
13,
-105,
-99,
116,
80,
-121,
118,
-28,
5,
22,
108,
33,
-109,
-10,
51,
-115,
124,
-102,
0,
-17,
39,
16,
81,
-52,
102,
92,
83,
50,
27,
-34,
-104
] |
Mr. Justice Fairchild
delivered the opinion of the court.
On the 19th of January, 1854, Mary Sturges recovered judgment against Nunn in the Seventh Judicial District Court, held in and for the Parish of East Feliciana, Louisiana, for the sum of six hundred dollars, with eight per cent, per annum interest thereon, from the 1st of January, 1846. Upon this judgment, Mrs. Sturges, with her husband, brought an action of debt in the Circuit Court of Drew county, in which judgment was rendered against Nunn, and the writ of error issued in this case is to obtain the reversal of this judgment.
No point is made for our consideration under the plea of nul tiel record, and we do not perceive any objection to the transcript of the record, which would have been available to Nunn under that plea.
Nunn also pleaded that he had no notice.ofithe pendency of the suit, in which judgment was rendered against him in the Louisiana court, and that the court had no jurisdiction' of his person when the judgment was rendered.
Upon the petition filed by the plaintiff in the'Louisiana court is the following endorsement. “I hereby accept service of the “ within petition, and waive the formality of citation. And I “ hereby also confess judgment in favor of the plaintiff, .Mrs. “ Mary Sturges, for the amount claimed, viz : six hundred dol- “ lars with interest thereon at the rate of eight per.cent, per “ annum from the first day of January, 1846, until paid. De- “ cember 12th, 1853. L. B. Nunn.” Upon the production of the foregoing endorsement, and proof of the signature of Nunn, and the exhibition of the note sued on, which had an acknowledgment of renewal upon its back, dated 29th October, 1851, the court gave the judgment against Nunn upon which this suit is brought.
It is objected to the judgment appealed from, that the endorsement of Nunn was but an admission of the debt, which could only be used as evidence, like other admissions, and that he ought to have had the opportunity of denying the signature or of pleading and showing any matter he could, and that would be lawful against its validity.
Every thing upon the face of the transcript of the judgment shows that it was obtained in a different proceeding from any suit that is conducted according to the observances of our courts or the practice of the common law. And as the court was evidently one of superior or general jurisdiction, one that must be taken, in the absence of proof to the contrary, to have had jurisdiction of the subject matter of the suit, we must take it for granted, that it would not have proceeded to render judgment without first obtaining jurisdiction of the person of the debtor, the action appearing to be a personal action. It also appears that the court considered the endorsement equivalent to per sonal service, and to a confession of judgment, in open court, and we must presume that the court acted according to law. Besides, to us the plain meaning of the endorsement is, that Nunn thereby entered his appearance to the action begun by the petition, waiving the formality of citation, that is, waiving and in fact acknowledging the notice, the alleged want of which is the subject of Nunn’s second plea. We cannot judicially act upon suspicion, information, or personal knowledge of the law of Louisiana, but comity, good sense and law require us to presume that its courts would not exercise jurisdiction over the person of a defendant, unless that jurisdiction was acquired by means known to its law ; and especially when we see an acknowledgment of the defendant, which is acted on as good personal service, and which could have been made for nothing else, than to submit himself to the jurisdiction of the court, and which is an actual acknowledgment that the plaintiff was seeking to obtain judgment against him.
In Clary vs. Morehouse, 3 Ark. 261, this court was deciding upon the effect, under our own law, of endorsement of waiver of process upon a declaration, and the decision was a construction of our own statutory mode of notice of a suit. But if the judgment entered in the Circuit Court in that case had not been reversed, and it had been sued on in Louisiana, the courts there would not have said that the judgment was void for want of notice to the defendants. It would have been presumed, as we presume with relation to the Louisiana court, that judgment would not have been rendered without notice, and that what appeared in the case as a waiver or acknowledgment of notice, and was so held to be, was well and legally done under our law, or system of practice. Barkman vs. Hopkins, 6 Eng. 157, was where the judgment, rendered in. Louisiana, was without notice of any sort upon Barkman, without any waiver thereof, or any appearance by him to the action, and when he was a resident of this State. In another case brought upon a Georgia judgment, on a service that would be defective here, this court held that the service might be good in Georgia, and whether so or not, though erroneous and informal in this and other respects, the judgment could not be void, Buford vs. Kirkpatrick, 13 Ark. 38. In Iglehart vs. More, 16 Ark. 47, the defendant in the Circuit Court had no notice actual or constructive, of the suit in Tennessee, and like Barkman, in Barkman vs. Hopkins, did not waive notice, or appear to the action, and was not a resident of Tennessee during the pending of the proceeding in that State. Like fasts, and the fact that the record showed the defendant to be a non-Vesident, relieved Merrick on a plea of mil tiel record, from a judgment entered against him in Massachusetts, Kimball vs. Merrick, 20 Ark. 15, 16.
In this case, as in Buford vs. Hopkins, the defendant failed to plead, or show that he did not reside in the State where the judgment was given against him.
The cases recited from our own reports, and other cases, hold that a judgment of another State must have the same effect here, as where rendered, unless the party denies actual notice of the suit or appearance thereto, or that, as a non-resident of the State he was not subject to special statutory modes of notice, that have no extra-territorial force.
We cannot say but that the judgment in Louisiana against Nunn would be there held as a judgment upon good notice: we believe that the court acted as having jurisdiction of his person, that the judgment was not void there, and must, consequently, be held to have determined that Nunn was indebted to Mrs. Sturges, for which she and her husband are entitled to the benefit of their judgment in the Drew Circuit Court, made less by the remittitur agreed to by their counsel, but with the condition affixed by the rule of this court to a judgment that is abated from its original amount. | [
-16,
108,
-27,
-66,
74,
96,
2,
-72,
66,
-111,
-9,
-13,
-87,
-53,
20,
99,
102,
-51,
85,
105,
-33,
-93,
22,
97,
-46,
-13,
-45,
-43,
-79,
-4,
-28,
-43,
12,
48,
-118,
-35,
102,
10,
-59,
92,
-114,
-91,
41,
77,
121,
106,
48,
25,
20,
72,
-27,
-2,
-13,
46,
24,
-54,
105,
44,
-39,
57,
-64,
-79,
-97,
-121,
-113,
84,
-79,
48,
-112,
7,
106,
46,
-120,
49,
4,
-8,
122,
-90,
6,
-44,
107,
-71,
12,
118,
98,
1,
-75,
111,
-68,
-40,
15,
-2,
-107,
-90,
-110,
105,
107,
68,
-75,
-99,
-1,
64,
-105,
116,
-26,
-124,
-104,
108,
43,
-114,
-106,
-73,
-113,
124,
-102,
19,
-61,
51,
52,
97,
-49,
-80,
93,
2,
59,
-101,
-122,
-68
] |
Mr. Chief Justice English
delivered the opinion of the Court.
In the month of August or September, 1854, Wm. Houser, of Van Burén, obtained possession of a mulatto boy named Bill, in the Indian country; and about the 16th of September, of the same year, placed him in possession of Samuel Strayhorn, of Dardanelle, and executed to him, on that day, a power of attorney, authorizing him to sell the boy, “ for any price whatever,” and to make a bill of sale, etc., to the purchaser, etc. On. the 6th of November, 1854, Strayhorn sold Bill to Josiah M. Giles, of the vicinity of Little Rock, for $1,000, taking a negro girl in part payment, and, in the name of Houser, executed a bill of sale to Giles, warranting Bill to be a slave for life, etc.
In the meantime Bill had commenced suit for his freedom against Houser, in the Crawford Circuit Court, which was pending when Strayhorn sold him to Giles; and afterwards, on the 15th day of August, 1856, he obtained a judgment of liberation.
On the 6th of February, 1858, Giles commenced this suit, in the Yell Circuit Court, against Strayhorn. The declaration contained three counts, the first and second' in case, alleging that Strayhorn made false and fraudulent representations to Giles in regard to Houser’s title to Bill; and the third in trover for the negro girl which Giles let Strayhorn have in part payment for Bill.
Upon the issues made up by the parties, and submitted to the court sitting as a jury, the court found in favor of Giles on the trover count, and assessed his damages at $700.
To the count in trover, Strayhorn pleaded not guilty and limitation. On the trial, the court declared the law applicable to the case to be contained in six propositions submitted on behalf of Giles.- Fifteen propositions were also submitted on the part of Strayhorn, the 10th and ISth of which the court declared to be law, and refused the others.
Strayhorn, without moving for a new trial, took a bill of exceptions and appealed.
Shortly after Strayhorn received the negro girl of Giles in part payment for Bill, he delivered her to Houser, who converted her to his own use. No demand was made upon Stray-horn, by Giles, for the girl before the action was commenced.
The court below must have found, from the evidence, that Strayhorn was guilty of fraud in the sale of the boy Bill to Giles, because, being the agent of Houser, and making the sale, and executing the bill of sale in his name, and having, before suit, turned over the girl, which he received of Giles, to Houser, he would not have been liable to Giles, in trover, for the value of the girl, if he had acted with fairness and without fraud in making the sale, etc. And there was evidence in the case on which the court could have so found. In September, 1854, after Bill was placed in the possession of Strayhorn, and before he sold him to Giles, Mr. Walker, of Van Burén, one of Bill’s attorneys, wrote to Mr. Green, who was then attending the Yell Circuit Court, that Bill was free, and was in the possession of Strayhorn, and requesting him (Green) to bring suit for his freedom. Whereupon, Mr. Green addressed a letter to Strayhorn, informing him that Bill was reputed to be free, requesting him to bring Bill to court that he might institute suit for his freedom; and proposing that Strayhorn might keep possession of Bill until the suit was determined. After Stray-horn had received this letter (with the request of which it seems he did not comply), he took Bill to Little Rock, and sold him to Giles, executing a bill of sale, in the name of Houser, warranting him to be a slave for life, etc. Before he sold him, he told a witness that he would not warrant the title. There was also some evidence from which it might have been inferred by the court that he had been informed, before the sale, that suit for Bill’s freedom had been instituted. It does not appear that he communicated to Giles the information which he was in possession of in relation to Bill’s suit for, or reputed, freedom.
It is true that a witness stated that he had heard a rumor that Bill was free, and was under the impression that he informed Giles of the rumor before he purchased him; but the court concluded, perhaps, that Giles was lulled into security and induced to make the purchase, notwithstanding he may have been informed of such rumor, by Strayhorn offering to sell, in the name of his principal, with warranty of title.
It was certainly the duty of Strayhorn to have dealt fairly and frankly with Giles, and to have advised him that he had been informed that Bill was reputed to be free, and had commenced suit against Houser for his freedom. Had he dealt thus fairly with Giles, there would have been no ground to impute fraud to him in the sale, and he would have incurred no personal liability in the transaction. If Giles, after being so informed of Bill’s claim of freedom, had thought proper to purchase him upon the faith of the warranty contained in the bill of sale, his remedy would have been against Houser on the warranty, and he could not have treated the contract as void for fraud, and maintained trover for the girl against the principal, or the agent. 1 Story on Contracts, sec. 496; 2 Parsons on Contracts, p. 270; Story on Agency, sec. 300; Campbell vs. Hillman, 15 B. Monroe 515.
But whether the court was warranted in finding from the evidence that Strayhorn was guilty of fraud in the sale to Giles or not, is a question which is not properly presented, by the record, for determination by us. There being no motion for a new trial, the finding of the court, sitting as a jury, upon the facts, is not the subject of review by .this court, as has been repeatedly held.
Fraud avoids a contract, ab initio, both at law and in equity, whether such fraud were committed by one of the contracting parties upon the other; ©r by both upon persons not parties thereto, for the law will not sanction dishonest views and practices, by enabling an individual to acquire any right or interest by means thereof. Ckitty on Contracts, 589. And the fraud ©f an authorized agent avoids a contract made by him for his principal. Ib. 590; Story on Contracts, sec.' 496.
The sale of a free negro to Giles, with warranty that he was a slave, was a fraud on the part of Houser, in whose name, and by whose authority, the sale was made; and it must be assumed, upon the finding of the court below, as above shown, that Strayliorn participated in the fraud.
The negro girl having been obtained from Giles by means of a fraudulent contract, in which Houser and Strayhorn participated, he had the right to treat the contract as void, and to 'bring trover for the value of the girl against both or either of them — the one having received the girl under the contract, and delivered her to the other. Campbell vs. Hillman, 15 B. Mon. 514; Johnson vs. Barber, 5 Gilman 430; Story on Agency 310; Story on Sales, secs. 158, 420; Buffington et al. vs. Gerrish et al., 15 Mass. 157.
The obtaining of the girl from Giles by means of a fraudulent contract, was equivalent to a tortious taking, and no demand was necessary before suit, Thurston vs. Blanchard, 22 Pick. 18; 1 Dana 110.
In Thurston vs. Blanchard, 22 Pick. 20, the court said: “We are now to take it as proved in point of fact, to the satisfaction of the jury, that the goods, for which this action of trover is brought, were obtained from the plaintiffs by a sale, but that this sale w'as influenced and effected by false and fraudulent representations of the defendant. Such being the case, we think the plaintiffs were entitled to maintain their action, without a previous demand. Such demand, and a refusal to deliver, are evidence of conversion, when the possession of the defendant is not tortious; but when the goods have been tortiously obtained, the fact is sufficient evidence of conversion. Such a sale, oblained under false and fraudulent representations, may be avoided by the vendor, and he may insist that no title passed to the vendee, or any person taking under him other than a bona fide purchaser for value and without notice, and in such case the. seller may maintain replevin or trover for the goods.”
The 1st, 3d, 4th, 5th and 6th propositions submitted on behalf of Giles, and declared by the court below to be applicable to the case, are substantially in harmony with the principles above stated.
So was the 10th proposition submitted on the part of the appellant, and approved by the court, in which it was declared, in effect, that he was not liable in the action unless he was guilty of fraud, or a tortious taking of the negro girl, etc.
So the 1st and 5th propositions submitted for appellant, and refused by the court, are believed to be correct, but they are substantially the same as the first proposed by appellee, and the tenth submitted by the appellant, which were approved by the court; and it was not necessary for the court to encumber the case by repeating and multiplying propositions, differing-only in phraseology and not in principle. The practice of unnecessarily multiplying instructions is not to be encouraged.
The transcript of the judgment of liberation, obtained by Bill, against Houser, in the Crawford Circuit Court, which was admitted in evidence, against the objection of appellant, was competent to prove that Bill was free at the time he was sold to the appellee, the suit having been instituted before the sale. Dig., .chap. 75,sec.l3. Being the judgment of a court of competent jurisdiction, establishing the status of Bill, it was admissible on principle. 1 Greenlf. Ev., sec. 544.
The court below did not err in declaring the second proposition submitted by appellee, in relation to the competency of the judgment of liberation, to be law; nor in refusing the contrary propositions submitted for appellant on the same subject. The identity of the negro was sufficiently established by the testimony in the case.
The counsel for appellant i,nsist that the damages assessed by the court, sitting as a jury, were excessive. This may be so, but there having been no motion to set aside the verdict, the question is not before us.
Believing that the .court did not err, to the prejudice of the appellant, in declaring the law applicable to the facts of the case, the judgment must be affirmed. | [
113,
118,
-103,
-66,
58,
64,
2,
-102,
66,
-93,
-89,
-45,
-23,
26,
0,
121,
35,
13,
81,
105,
-50,
-73,
85,
96,
-78,
-14,
-47,
-35,
-71,
-39,
-20,
85,
76,
32,
-54,
57,
103,
-54,
-51,
84,
-50,
9,
-56,
77,
-63,
-32,
52,
109,
30,
42,
37,
-66,
-13,
46,
29,
-38,
107,
44,
-7,
47,
120,
-70,
-117,
-97,
-35,
22,
19,
98,
-104,
7,
106,
110,
-80,
53,
9,
-8,
123,
-74,
6,
-44,
109,
-119,
40,
98,
102,
67,
37,
-49,
-72,
-120,
118,
-4,
-123,
-25,
-112,
72,
34,
77,
-65,
-107,
-66,
20,
39,
86,
-82,
-52,
17,
108,
13,
-113,
-98,
-73,
-115,
56,
28,
19,
-46,
65,
48,
117,
-113,
-46,
109,
71,
123,
-109,
-114,
-4
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.