text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
Per Curiam.
Corey Sanders, by his attorney, has filed a motion for rule on the clerk.
His attorney, Larry G. Dunklin, admits in his motion that the record was tendered late due to a mistake on his part.
We find an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
-76,
-22,
92,
60,
-118,
32,
50,
46,
65,
-15,
-85,
83,
-91,
-53,
28,
123,
-13,
107,
117,
123,
-58,
-89,
119,
65,
54,
-13,
-29,
-41,
53,
109,
-12,
-33,
76,
-80,
-118,
-43,
70,
-126,
-113,
-44,
-126,
1,
56,
-27,
113,
65,
56,
58,
-48,
15,
53,
126,
-13,
40,
31,
67,
-87,
106,
-34,
-85,
80,
-79,
-109,
5,
125,
20,
-77,
-124,
-98,
-122,
-40,
46,
-100,
56,
2,
-24,
48,
-90,
-58,
116,
111,
121,
40,
66,
100,
33,
-100,
-27,
-96,
-96,
7,
62,
29,
-90,
-103,
41,
73,
42,
-106,
-99,
34,
16,
38,
60,
-30,
-35,
29,
44,
-117,
-50,
-60,
-77,
31,
115,
-114,
-21,
-54,
1,
16,
49,
-49,
-28,
92,
79,
49,
-45,
-50,
-91
] |
Ray Thornton, Justice.
Appellant brings this appeal of his conviction for capital murder in the shooting death of Roger Cousins on May 29, 1998, urging that the trial court erred in admitting the victim’s dying declaration naming appellant as his assailant. We find no error and affirm appellant’s conviction and sentence of life imprisonment.
Roger Cousins was found on the edge of a highway outside Judsonia by Tommy Cole. Cousins had been shot four times in the back and called out to Cole as he drove by, “Please help me. I’ve been shot. I’m dying.” Cole stopped his car and called 911 and requested assistance. Cole then heard Cousins say that a “Roger Hammon” had “shot me all to pieces.” Upon the arrival of the police and being told that his wounds were life-threatening, Cousins replied, “I know,” and said twice more that “Roger Hammon shot me.”
According to testimony, Cousins and Hammon were together earlier in the evening in a car driven by Shirley Estes, Cousins’s girlfriend and Hammon’s cousin. Hammon took possession of the loaded gun that Estes carried under the driver’s seat, and asked that she stop the car. Hammon fired one shot inside the car; Estes and Cousins dove out of the vehicle and Hammon chased Cousins, firing shots at him. Estes drove away from the scene and Cousins was later found beside the road near the scene of the shooting. Cousins was transported to the hospital, where he later died.
The State filed capital murder charges against Hammon, waiving the death penalty in the absence of aggravating factors. At trial, the medical examiner testified that analysis of the victim’s urine revealed amphetamine, methamphetamine, amitryptyline, its metabolite noritriptyline, and cannabinoids. No drugs or alcohol were detected in the victim’s blood. According to the medical examiner, a subject is only considered to be under the influence of drugs or alcohol when these substances are found in the bloodstream; the presence of such substances in the urine only indicates prior use. According to the toxicologist, that use could have been as recently as six to eight hours prior to his death, but no longer than twenty-four hours previously. The witness offered a professional opinion that the victim did not have the substances in his body in a level that would seriously affect or intoxicate him.
Hammon was convicted of capital murder and sentenced to life imprisonment. From that verdict and sentence he brings this appeal, alleging a single point of error: that the trial court erred in allowing the testimony of Cole and two police officers of the victim’s dying declaration that Hammon shot him, because Cousins was incompetent and his statement unreliable based on the presence of drugs in his urine.
Pursuant to Ark. R. Evid. 802 (1999), hearsay is not admissible except as provided by law or by the rules of evidence. One exception to the hearsay rule is found in Ark. R. Evid. 804(b)(2), which provides that a statement made under the belief of impending death, commonly known as a dying declaration, is not excludable as hearsay if the declarant is unavailable as a witness. In order to qualify as a dying declaration under Ark. R. Evid. 804, the statement must have been made by a declarant while believing that his death was imminent, and it must concern the cause or circumstances of what he believed to be his impending death. Thompson v. State, 306 Ark. 193, 813 S.W.2d 249 (1991). The trial court determines whether a statement is admissible as a dying declaration, and this court will reverse that determination only if the trial court abused its discretion. Id. Dying declarations are deemed inherently trustworthy. The principal consideration upon which such statements are admitted is that one who realizes that death is inevitable in consequence of the injury inflicted speaks with solemnity and will not resort to fabrication in order to unjustly punish another. Pinson v. State, 210 Ark. 56, 194 S.W.2d 190 (1946).
Appellant makes no argument that the statements at issue do not meet those requirements of dying declarations; rather, appellant’s argument centers on his contention that the dying declaration should be admissible only if it is otherwise reliable. In support of his argument, appellant cites two cases where we held that a dying declaration is only admissible to the extent that the deceased could have testified had he been alive at the time of the trial, and such declaration should not contain matter which would be excluded if the declarant was a witness. See Riddle v. State, 210 Ark. 255, 196 S.W.2d 226 (1946); Jones v. State, 52 Ark. 345, 12 S.W. 704 (1889). Appellant urges that “competent” as used in those cases has the same meaning as “rehable,” and that the victim’s testimony in this case is unreliable because of the drug metabolites in his urine.
We disagree with appellant’s interpretation of the cited cases. Both cases concerned instances where the deceased victim was shot in the back, under circumstances where the victim could not possibly have seen his shooter. A mere expression of opinion by the dying person is not admissible as a dying declaration. Riddle v. State, 210 Ark. 255, 196 S.W.2d 226 (1946). In the cases cited above, the declarant’s statement was incompetent because of lack of personal knowledge under Ark. R. Evid. 602, not because it was not “reliable,” as appellant uses the term. If, upon any view of the evidence, it is possible for the declarant to know the truth of what he states, his declarations, being otherwise competent, should be received and considered by the jury in light of all the evidence. Riddle, supra. Competency, as referred to in Ark. R. Evid. 601, is not to be confused with reliability. Testimony by competent witnesses may be presented to the finder of fact. The jury then evaluates the evidence, considers the credibility of the witness, and arrives at its conclusion. The criteria for determining whether a witness is competent to testify are: (1) the ability to understand the obligation of an oath; (2) an understanding of consequences of false swearing; (3) the ability to receive and retain accurate impressions; and (4) the capacity to transmit a reasonable statement of what has been seen, felt, or heard. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989).
The testimony of the medical examiner was that drugs were present in the victim’s urine but not in his bloodstream. The absence of the drugs from Cousins’s blood indicated that they had already been metabolized and did not render Cousins intoxicated at the time of his death. According to the witness, one is “only intoxicated when alcohol or drugs are found in the blood. If they are found in any other body fluids, you’re not under the influ ence.” The testimony of the three persons who heard the declarations was that Cousins was coherent: he spoke clearly, made sense, was rational, and did not appear to be drunk. We have concluded that Cousins was competent and thus his dying declaration was admissible, and that the further question of credibility was for the jury to consider.
We have previously rejected the argument that appellant makes here. In Missouri Pacific Rd. Co., Thompson, Trustee v. Haigler, Admx., 203 Ark. 804, 158 S.W.2d 703 (1942), we held:
Another assignment relates to the dying declaration of Haigler. It is contended that it was inadmissible, not on the ground that it was not made under a sense of impending death, but because, it is contended, that he was “suffering from shock and under the influence of opiates to such an extent as to render him incapable of knowing what he was doing or saying or of making the statement at all in fact.” Such evidence is admissible under the conditions set out in 5201, Pope’s Digest. We dispose of this assignment against appellant on the ground that there was substantial evidence to show that he was conscious, and whether he was, or whether he made the statement testified to by his son-in-law, were questions of fact for the jury. The same rule under the above mentioned statute in criminal cases is applicable to civil cases, and, as we said in Goynes v. State, 184 Ark. 303, 42 S.W.2d 406, “whether the deceased was of sound mind when he made the statement was a question of the credibility rather than the admissibility of the declaration.”
Id. (emphasis added). See also Bramlett v. State, 184 Ark. 808, 43 S.W.2d 364 (1931)(stating that the question whether victim who made dying declaration was conscious of his language was for jury to resolve in deciding the weight to give to testimony); Gray v. State, 185 Ark. 515, 48 S.W.2d 224 (1932); Riddle v. State, 210 Ark. 255, 196 S.W.2d 226 (1946) (stating that jury decides weight and credibility of dying declarations).
For a second contention under this point of error, appellant urges that Cousins’s dying declaration should have been excluded pursuant to Ark. R. Evid. 403 (1999), which provides that “[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prej udice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Id. Determining the relevancy of evidence and gauging its probative value against the danger of unfair prejudice under Rule 403 are matters within the trial court’s discretion, the exercise of which will not be reversed on appeal absent a manifest abuse of that discretion. McLennan, supra.
Appellant contends that this evidence was more prejudicial than probative because the State had other means of proving its case, i.e., the eyewitness testimony of Shirley Estes. This argument fails based on our previous holdings that the State is entitled to prove its case as conclusively as it can. Regaldo v. State, 331 Ark. 326, 961 S.W.2d 739 (1998). Appellant’s reliance upon Smith v. State, 19 Ark. App. 188, 718 S.W.2d 475(1986)(en banc), and Golden v. State, 10 Ark. App. 362, 664 S.W.2d 496 (1984), for the proposition that the probative value of evidence correlates inversely to the availability of other means of proving the issue for which the prejudicial evidence is offered, is misplaced. We recently limited the application of Smith and Golden to cases involving Ark. R. Evid. 404(b), involving evidence of other crimes and wrongs. See Henry v. State, 337 Ark. 310, 989 S.W.2d 894 (1999).
Because we find no error in the trial court’s admission of the victim’s dying declaration, that ruling is affirmed.
Rule 4-3 (h) Review
As required by Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for other reversible error, and none has been found. Therefore, we affirm.
Affirmed. | [
48,
-19,
100,
-98,
59,
32,
58,
52,
83,
98,
-12,
115,
41,
-37,
69,
41,
-77,
109,
117,
-23,
-67,
-73,
23,
1,
-110,
-77,
96,
-57,
49,
73,
-20,
-67,
13,
64,
-118,
17,
-62,
8,
-9,
90,
-122,
17,
-87,
112,
83,
18,
33,
58,
46,
15,
53,
14,
-85,
14,
18,
-82,
73,
104,
91,
-88,
-64,
17,
8,
5,
-23,
54,
-93,
3,
-75,
-87,
-6,
26,
-39,
49,
16,
-8,
49,
-89,
-128,
84,
105,
-119,
12,
98,
-25,
-92,
93,
-19,
-83,
-119,
47,
-82,
-68,
-121,
-97,
97,
73,
37,
-105,
-33,
122,
20,
-66,
-8,
123,
-35,
85,
-20,
-108,
-34,
22,
-125,
73,
56,
-108,
-6,
-5,
37,
32,
117,
-51,
98,
84,
69,
88,
-37,
-97,
-106
] |
Per Curiam.
On March 12, 1999, the record in this case was tendered to the clerk’s office, but it was not accepted because the time for filing had exceeded seven months from the date of the entry of judgment. On March 19, 1999, counsel filed a motion for rule on the clerk and again tendered the record to the clerk’s office, although the time for filing had lapsed. In his motion, appellant stated the reason the record was tendered late was that the Hot Spring County Circuit Clerk was unable to prepare the transcript in time for proper filing.
This court has held that it will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Further, we have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion was denied.
Appellant’s attorney now files another motion for rule on the clerk in which he admits that the record was tendered late due to a mistake on his part. We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Tarry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. | [
-12,
104,
-20,
28,
-118,
96,
50,
-86,
65,
-29,
121,
83,
-89,
-54,
28,
121,
99,
43,
117,
121,
-60,
-77,
55,
65,
102,
-13,
-21,
87,
61,
111,
-10,
-42,
76,
112,
-54,
-43,
71,
72,
-123,
82,
-58,
-118,
-103,
108,
89,
0,
48,
105,
82,
13,
53,
-2,
-30,
-81,
61,
79,
-55,
40,
77,
-77,
80,
-15,
-101,
5,
125,
20,
-95,
-105,
-98,
6,
120,
42,
-116,
49,
2,
-20,
50,
-90,
-122,
116,
77,
57,
40,
110,
98,
49,
13,
-25,
40,
-120,
5,
58,
13,
38,
-70,
41,
107,
111,
-106,
-107,
116,
18,
39,
124,
101,
-59,
89,
44,
-119,
-49,
-48,
-77,
31,
104,
-116,
11,
-21,
1,
20,
117,
-49,
-26,
92,
79,
51,
-101,
-34,
-76
] |
Per Curiam.
The State of Arkansas has petitioned this court to grant the respondent, Kenneth Strawbridge, a belated appeal and to appoint counsel to represent him for the appeal. The State shows this court that on July 20, 1999, United States Magistrate Judge John F. Forster, Jr., held that respondent was denied his first appeal of right and that a writ of habeas corpus would be granted unless counsel was appointed to represent him on appeal within ninety days and a belated appeal was granted.
We grant Mr. Strawbridge a belated appeal and appoint Robert R. White, Esq., to represent the respondent in this appeal. | [
52,
-24,
-12,
62,
10,
67,
50,
-66,
81,
-21,
100,
81,
-81,
-97,
17,
121,
-13,
43,
85,
-5,
-49,
-74,
119,
73,
82,
-13,
27,
-41,
-13,
127,
-3,
-2,
76,
113,
-54,
-111,
68,
-54,
-17,
84,
-114,
5,
43,
109,
113,
74,
41,
-17,
82,
15,
17,
-98,
-13,
46,
24,
81,
-56,
44,
75,
-113,
74,
-111,
-101,
15,
-35,
22,
-95,
52,
-102,
-128,
114,
126,
-104,
48,
1,
-8,
114,
-90,
-126,
116,
99,
-7,
40,
70,
98,
0,
76,
-17,
-120,
-96,
54,
30,
-115,
-90,
-104,
120,
75,
101,
-98,
-65,
59,
-108,
14,
-4,
-17,
-52,
85,
46,
-126,
-50,
-108,
-91,
86,
120,
-92,
90,
-29,
3,
16,
117,
-59,
-26,
92,
67,
51,
-37,
-58,
-78
] |
Richard B. Adkisson, Chief Justice.
Appellee, Arkansas Social Services, secured, ex parte, a temporary restraining order under Ark. Stat. Ann. § 83-915 (Repl. 1976) enjoining appellant, Jacksonville Christian Academy, from providing day care service to preschool children. At the same time the trial court set a hearing to determine if the temporary restraining order should be dissolved. This was done pursuant to ARCP Rule 65 (b), Ark. Stat. Ann., Vol. 3A (Repl. 1979) which provides:
Upon application by the party against whom the preliminary injunction or temporary restraining order has been issued without notice, the Court shall, as expeditiously as possible, hold a hearing to determine whether the preliminary injunction or temporary restraining order should be dissolved. Where a hearing is required to be held on an application for a preliminary injunction or temporary restraining order, the Court may order the trial of the action on the merits advanced and consolidated with the hearing on the application. When consolidation is not ordered, any evidence received upon application for a preliminary injunction or temporary restraining order which would be admissible upon the trial on the merits becomes a part of the record of the trial and need not be repeated upon the trial. This subdivision (b) shall be so construed and applied as to save to the parties any rights they may have to trial by jury. (Emphasis supplied)
However, instead of holding a hearing on whether the temporary restraining order should be dissolved, the hearing actually became a trial on the merits of the case. Rule 65 (b) does not contemplate a trial on the merits at the time of the temporary hearing unless the trial court has ordered the proceedings consolidated; and, no such order was made in this case. Appellant had no notice that the hearing was to be a trial on the merits, and at the time of the hearing appellant had not filed an answer or had the time for doing so expired.
Appellant argues that the religious exemption clause of Act 518 of 1981, Ark. Stat. Ann. § 83-918 (Supp. 1981), is unconstitutional. But, we do not reach this issue since the trial court’s judgment does not disclose to what extent, if any, the constitutionality of the statute was considered.
For these reasons we reverse and remand for trial.
Reversed and remanded. | [
-79,
-24,
-76,
-52,
10,
97,
56,
-76,
83,
-126,
97,
-46,
47,
-34,
16,
127,
122,
107,
116,
121,
-47,
-73,
7,
73,
-14,
-45,
80,
-41,
-73,
111,
100,
-66,
88,
112,
-22,
-43,
70,
-55,
-127,
22,
14,
11,
-71,
100,
81,
-126,
52,
35,
90,
11,
53,
-42,
-29,
111,
24,
-64,
8,
108,
-113,
117,
-64,
88,
-97,
7,
111,
6,
-77,
52,
24,
39,
-8,
28,
-104,
49,
8,
-24,
115,
-78,
18,
116,
67,
-101,
40,
96,
98,
0,
32,
-14,
-4,
-120,
78,
55,
-99,
-122,
-103,
73,
75,
13,
-74,
-65,
117,
20,
6,
-2,
111,
-59,
92,
108,
3,
-50,
-42,
-93,
7,
57,
62,
3,
-21,
-79,
48,
101,
-49,
-16,
94,
83,
19,
-37,
-50,
-108
] |
Frank Holt, Justice.
A jury convicted appellant of second degree murder and assessed his punishment, as a habitual offender, to thirty years imprisonment and a $15,000 fine. As requested by the appellant, the court converted the $15,000 fine to an additional year of imprisonment. We affirm.
For reversal appellant asserts that the trial court abused its discretion by refusing to excuse two jurors for cause. One juror was the husband of a Little Rock police officer. When first questioned by the appellant’s attorney, he stated that it would be hard to answer whether he would tend to give a police officer more credibility than some other witness. Upon further questioning by the court, he stated that his wife’s being a police officer would not give him any difficulties, that he could judge the case solely and entirely on what he heard in court, that he had no preconceived notions about the ease, and that he could consider a police officer’s testimony just as he would any other witness’ testimony. The other juror was challenged because he had once consulted with the state’s attorney on a matter when that attorney had been in private practice. This juror stated that his past relationship with the prosecutor would not influence him, and that he could render a fair and impartial verdict. The appellant had exhausted his peremptory challenges before the voir dire of these two jurors. Appellant argues that permitting either of these jurors to serve infringed upon his constitutional right to a fair and impartial trial.
The question of a juror’s qualification lies within the sound judicial discretion of the trial court and the appellant bears the burden of showing the prospective juror’s disqualification. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Satterfield v. State, 252 Ark. 747, 483 S.W.2d 171 (1972); Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1976). The correct test is whether the prospective juror can lay aside any preconceived opinion and render a verdict based upon the evidence presented and the instructions of the court. We have held that being associated in business with one of the trial attorneys does not alone disqualify a prospective juror. C. A. Rees & Co. v. Road Improvement Dist. No. 1 of Clark County, 167 Ark. 383, 267 S.W. 770 (1925). Likewise, the mere fact that a prospective juror is related to a law enforcement officer, who is not involved in the case being tried, does not alone disqualify that juror. Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73; and Johnson v. State, 270 Ark. 871, 606 S.W.2d 381 (Ark. App. 1980). Here, the wife of the juror was neither a witness nor an investigator in the case. In fact, she was an officer of the Little Rock Police Department. All of the officers testifying were from the North Little Rock Police Department. Unlike Pickens v. State, 260 Ark. 633, 542 S.W.2d 764 (1976), both jurors here unequivocally affirmed their ability to make a fair and impartial decision. We hold the appellant has not demonstrated the court abused its discretion.
The court denied appellant’s request that the charge of first degree murder be reduced to second degree murder. The state, however, moved for an instruction on second degree murder in addition to the instruction on first degree murder. This motion was granted over appellant’s objection, and he assigns this as error. Since the appellant had moved to have the charge reduced to second degree murder, his request in this regard was, in effect, granted by the jury verdict. We do not reverse unless the asserted error is prejudicial. Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977). Here, appellant has not demonstrated he was prejudiced by the court’s ruling.
Appellant next contends that the evidence was insufficient to support a verdict of guilty. On appeal we review the evidence in the light most favorable to the appellee, and we affirm if there is substantial evidence to support a verdict, which means that we must decide whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981); and McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979).
Here, the state medical examiner testified that the deceased died between 8 and 12 p.m. Friends of the appellant testified appellant came by their home at approximately 10:30 p.m. He had a large amount of blood on his clothing. He explained that he had been fishing and had bloodied his clothing while cleaning the fish, a statement which he later admitted was a fabrication. Witnesses testified, and appellant admitted, that he and the victim had spent the evening barhopping and drinking. According to the appellant he drove the victim in a van to a designated location where the victim was to purchase a quantity of drugs from other individuals. When the victim refused to consummate the transaction, these individuals killed him by repeated blows to the head with a hammer. In the scuffle appellant’s clothing-was covered with blood. Following the alleged offense he fled the scene, because of threats, in possession of the van which was entrusted to the victim by his employer, and he secreted the van following the alleged murder. Further, he disposed of the hammer, the murder weapon, which was recovered when he accompanied officers to the location where he had thrown it in the river. The officers testified that their investigation failed to connect the individuals named by appellant with the crime. Viewing the evidence most favorable to the appellee, as we must do on appeal, we hold there is substantial evidence to support the jury’s finding of second degree murder; that is, that appellant knowingly caused the death of the deceased under circumstances manifesting extreme indifference to the value of human life. Ark. Stat. Ann. § 41-1503 (1) (b) (Repl. 1977).
The appellant’s multiple fourth point is that the trial court erred in admitting evidence of prior convictions of the defendant. He first asserts that Act 252 of 1981 (Ark. Stat. Ann. § 41-1005 [Supp. 1981]) unconstitutionally grants the trial court the power to make a factual finding as to the number of prior felony convictions in a habitual offender sentencing procedure. However, here, the court submitted the fact issue (pursuant to AMCI 7001 and 7002) to the jury and it, rather than the trial court, made the finding as to the number of prior convictions. In order to have standing to attack the constitutionality of a statute, the appellant must show that the questioned statute resulted in a prejudicial impact on him. Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979); McCree v. State, supra; and Williams v. State, 260 Ark. 457, 541 S.W.2d 300 (1976). Here, appellant has not demonstrated that the questioned statute was used to his detriment.
The evidence of prior convictions consisted of a copy of records (a pen pack) from the Arkansas Department of Correction which was certified by the custodian of the records. The appellant contends that this evidence violated the Uniform Rules of Evidence, Rules 803 (6) and 803 (8). This objection was not made at trial and cannot be reviewed here. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980); Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979); A.R.Cr.P., Rule 36.21, and Uniform Rules of Evidence, Rule 103 (a).
The appellant further argues that the records introduced as evidence of the prior convictions were inadequate under Ark. Stat. Ann. § 41-1003 (2) (Supp. 1981), because no comparison was made of the fingerprints contained therein to insure that the appellant was the same individual named in the certified records. The pen pack also contained photographs of the person convicted of the recorded offenses. Appellant argues that the trial court’s finding was based only upon the certificate, photographs and commitment papers. He asserts there is no evidence that the fingerprints with the file were his. Therefore, the statutory requirements were not met and the evidence (pen pack) should have been excluded.
Section 41-1003 states:
A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty. (Italics supplied.)
The state is not limited to the modes of proof listed specifically in § 41-1003 but can rely on “any evidence” that satisfies the appropriate burden of proof. Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980); Elmore v. State, 268 Ark. 225, 595 S.W.2d 218 (1980). As the commentary to § 41-1003 states, “The commission wished to make clear that the state may prove a previous felony conviction by means other than introduction of one of the certificates described in the statute.” The question of whether the photographs and the certified records actually established beyond a reasonable doubt that the appellant was the person who had been convicted of the previous offenses is for the trier of fact to decide. Elmore v. State, supra. On appeal our task is merely to decide whether there was substantial evidence to support that conclusion. Cassell v. State, supra. Here, we find there was substantial evidence.
The appellant also argues that the introduction of the records, in the absence of the custodian thereof, deprived him of the right to confront the witness against him. Constitution of Arkansas (1874), Art. 2, § 10; United States Constitution, Sixth and Fourteenth Amendments. The appellant cites no cases holding that the introduction of records in the absence of the recordkeeper in a criminal trial violates the defendant’s right of confrontation. We have held that the introduction of the record of conviction of a principal is admissible in a trial of an accessory. Tiner v. State, 110 Ark. 251, 161 S.W. 193 (1913). Other jurisdictions have held that the admission of records of prior convictions in habitual offender proceedings in the absence of the recordkeeper does not violate the defendant’s face to face or confrontation rights. State v. Miller, 608 S.W.2d 158 (Tenn. Cr. App. 1980); People v. Bryan, 3 Cal. App. 3d 327, 83 Cal. Rptr. 291 (1970); State v. Dawson, 91 N.M. 70, 570 P.2d 608 (1977). Wigmore on Evidence, § 1398, Note 8; see also 21 Am.Jur.2d Criminal Law §§ 963 and 964; 70 ALR2d 1232-4. Texas permits prior convictions to be established by certified copies of records from the Department of Correction, exactly as here, and this procedure has been upheld in both federal and state courts. Tomlin v. Beto, 377 F.2d 276 (1967); Dozier v. State, 167 Tex. Crim. 84, 318 S.W.2d 80 (1958). Here, we hold there was no infringement upon appellant’s state and federal constitutional rights.
Affirmed. | [
48,
-22,
-31,
-66,
9,
64,
-70,
-104,
82,
-93,
-90,
50,
43,
-45,
4,
123,
-85,
-3,
84,
105,
-42,
-73,
39,
96,
50,
-45,
25,
-59,
-72,
111,
-12,
-35,
76,
48,
-62,
-43,
102,
75,
-25,
80,
-126,
-124,
41,
115,
90,
82,
48,
39,
87,
11,
-15,
-98,
-21,
42,
29,
-54,
109,
44,
75,
-66,
64,
-79,
26,
-113,
93,
20,
-77,
-90,
-102,
7,
120,
54,
-36,
49,
1,
88,
115,
-106,
-126,
-44,
107,
-101,
-116,
98,
96,
-96,
21,
-53,
56,
-127,
62,
110,
-113,
-89,
-104,
89,
75,
12,
-74,
-33,
98,
52,
14,
-2,
-27,
85,
89,
108,
3,
-50,
-108,
-111,
-115,
36,
-106,
-38,
-21,
33,
16,
117,
-52,
-30,
84,
23,
83,
-101,
-122,
-108
] |
Per Curiam.
Appellant, through his attorneys, William Cromwell and Sam Park, has filed a motion to file an extended brief of 47 pages. The appellee has also requested permission to file an extended brief of 43 pages. We grant the appellant and appellee permission to file extended briefs as requested.
Appellant also filed a motion on August 23, 1982, asking that he be permitted to file a belated brief. The motion was denied, but we said that in accordance with our Per Curiam order of February 5, 1979, 265 Ark. 964, it was subject to being granted if the attorneys would accept responsibility or give other cause for the failure to file the brief within time. One of the attorneys, Mr. Cromwell, has complied with the procedure set forth in that order and has submitted an affidavit accepting fault for the untimely tendering of the brief. The other attorney, Mr. Park, has not responded.
Even though Mr. Park has not conceded his error or offered other good cause for the untimely tender, we will grant the motion for belated brief since to do otherwise would operate to deny the appellant a right to appeal because of his attorneys’ neglect of a professional duty. See Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). We further note that Park’s failure to state good cause for the late tendering of the brief must be considered an admission that he was at fault.
A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion granted. | [
116,
111,
-4,
28,
10,
96,
50,
-102,
83,
-21,
39,
83,
-81,
-118,
28,
123,
99,
47,
84,
123,
-59,
-80,
119,
67,
-30,
-77,
112,
85,
-79,
111,
-28,
-9,
76,
48,
-54,
-43,
70,
-56,
-59,
84,
-58,
-123,
-104,
-20,
81,
66,
52,
113,
16,
15,
49,
94,
-13,
-86,
18,
71,
-24,
108,
-55,
37,
-64,
48,
-101,
-115,
123,
20,
-95,
-108,
30,
3,
88,
58,
8,
-79,
2,
-24,
50,
-74,
-126,
116,
75,
27,
8,
103,
98,
48,
-59,
-25,
-112,
-100,
94,
30,
15,
38,
-79,
41,
107,
43,
-74,
-99,
49,
20,
7,
122,
-18,
-51,
25,
44,
10,
-54,
-128,
-77,
95,
120,
-100,
-125,
-29,
5,
16,
52,
-51,
-25,
92,
71,
51,
-109,
-50,
-92
] |
Per Curiam.
On April 16, 1982, the Clerk of the Supreme Court received from the Union County Circuit Clerk a trial record to be lodged on appeal in the case of Donald James Carrier. Since Carrier, who was convicted of murder in the first degree and sentenced to life imprisonment, had filed an untimely pro se notice of appeal, the Clerk declined to file the record. The attorney of record in the case, Ronald Griggs, then filed a motion for rule on the clerk. The attorney admitted that he had not been relieved as counsel in the case and had not taken any steps to perfect the appeal. We denied the motion for rule on the clerk but noted that a subsequent such motion would be granted if the attorney admitted his error or gave other good cause for granting the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. We also denied a motion to be relieved as counsel filed by Mr. Griggs. Griggs did not file a second motion for rule on the clerk.
On July 30, appellant filed a pro se motion for belated appeal and appointment of counsel. Griggs responded to appellant’s motion by affidavit. The affidavit contains no good reason for the attorney’s failure to follow the proper procedure for withdrawing from a criminal case.
Rule 36.26 of the Arkansas Rules of Criminal Procedure provides:
Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.
The method for taking the appeal is set out in Rule 36.9. Rule 11 (h), Rules of the Supreme Court of Arkansas, places certain duties upon the trial attorney if he intends to withdraw from a case. In Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979), we held that it was the duty of the trial attorney to obtain permission from the trial court to withdraw from the case and the petition to withdraw should contain a statement of the reasons therefor. Also, we held that a copy of the request for withdrawal, if granted, should be sent to the appellant.
In view of the fact that the present attorney did not follow the procedure prescribed for withdrawal, we must still consider him the attorney of record and hold him responsible for the duties imposed upon him by the rules, statutes and opinions of the court as recited above. The belated appeal will be granted and a copy of this opinion forwarded to the Committee on Professional Conduct.
Motion granted. | [
48,
-22,
-44,
29,
-118,
-31,
58,
62,
-47,
-21,
103,
115,
-81,
-77,
28,
127,
83,
47,
117,
-7,
-43,
-73,
119,
64,
34,
-13,
-111,
-41,
-12,
127,
-26,
-66,
92,
96,
-54,
-43,
70,
-54,
-121,
-38,
-98,
0,
-119,
-20,
120,
-127,
48,
33,
82,
15,
117,
-98,
-29,
42,
31,
-61,
-88,
44,
91,
-82,
80,
17,
-104,
13,
109,
20,
-79,
-92,
-102,
6,
-40,
46,
-100,
49,
1,
-8,
112,
-74,
-126,
84,
111,
25,
40,
102,
102,
33,
-111,
-17,
-88,
-128,
22,
62,
29,
-26,
-40,
9,
75,
11,
-106,
-67,
43,
16,
15,
-4,
-20,
-33,
17,
44,
0,
-50,
-44,
-93,
50,
109,
-114,
10,
-22,
7,
48,
113,
-49,
-30,
92,
71,
121,
-37,
-50,
-108
] |
George Rose Smith, Justice.
The appellant, Joe Har-
mon, was charged with capital felony murder in that he and two younger men, J. D. Phillips, aged 17, and David Michael Turner, aged 22, kidnapped and shot Ricky Bennett on January 23, 1981. After the jury had been sworn the trial court committed reversible error, albeit reluctantly, by permitting the prosecutor to amend the information to add alternatively that the murder was committed in the course of robbery. The jury found Harmon guilty and condemned him to death. Of the eleven points for reversal we discuss those that may arise at a new trial.
First, the evidence was sufficient to support the jury’s verdict, which did not specify either kidnapping or robbery as the underlying felony. Prior to the murder Joe Harmon and Dorothy Rader had been living together in her home at Boles, in Scott county. She testified that she had been trying to get him to move out. The home was also occupied by Ms. Rader’s children, by the victim, and by one or two other young persons.
On the night in question Harmon, Phillips, and Turner had been out hunting. They returned after midnight. Harmon, who did not like Ricky, scuffled with him and ordered him to pack his belongings and leave. Harmon, Phillips, and Turner set out to drive Ricky to a bus stop, but instead they took him to a lonely place and shot him three times with a rifle. In Harmon’s confession he said he had fired the first shot and each of the younger men then also shot Ricky, who had fallen to the ground.
Harmon made little effort to conceal the crime from Ms. Rader or from her daughter Marie. The next day Harmon was seen burning Ricky’s wallet. A few days later he took Dorothy and Marie with him while he buried the body in a shallow grave in the woods. We find substantial evidence to support a verdict finding that Harmon killed Ricky Bennett in the course either of kidnapping or of robbery. Ark. Stat. Ann. §§ 41-1702 and -2103 (Repl. 1977).
At a suppression hearing a week before the trial the court held that Harmon’s confession was voluntary and that there had been a valid consent to a warrantless search of Ms. Rader’s house, where the officers took possession of the rifle, which belonged to Ms. Rader’s son, and of two rings that had belonged to Ricky. Three of the arguments for reversal arise from the pretrial hearing. With respect to the first argument, we need only say that the trial judge’s finding of voluntariness is not clearly erroneous.
Second, the search. Marie Rader, who was sixteen at the time, testified that she and her mother did not report the crime until a month later, because they were afraid of Harmon. On February 23, however, when Harmon had to go to Pine Bluff on a speeding charge, Marie went to the police and reported the murder. She showed the police the grave and also signed a form consenting to the search of her mother’s house.
It is argued that Marie could not consent to the search of the house. The question, under Criminal Procedure Rule 11.2, is whether she was a person who, by ownership or otherwise, was “apparently entitled to give or withhold consent.” We have said that a person having joint access or control for most purposes may have a sufficient relationship to the premises to give consent. Grant v. State, 267 Ark. 50, 55, 589 S.W.2d 11 (1979). Also, we have upheld a search when it was “not unreasonable” for the officers to believe that the person in question had sufficient control over the premises to give a valid consent to a search without a warrant. Spears v. State, 270 Ark. 331, 605 S.W.2d 9 (1980).
We think the trial judge was warranted in finding that Marie, despite her minority, was apparently entitled to give consent. She testified that she knew about consents to searches, having seen her father execute one. She lived in the home and certainly had the right of access and presumably the right to invite visitors to enter. When she accompanied the officers to the house, she had already reported the crime. Her mother was not at home, only her cousin and one other young person being present. She had described the rifle used in the murder and produced it for the officers, without their searching for it. She also took from her finger one of the two rings that had been taken from Ricky. There is no suggestion that any part of the house was the private quarters of Harmon. We discern no invasion of Harmon’s rights in connection with the search of the house, owned by Dorothy Rader. In fact, the rifle and rings were surrendered without a search.
A third argument is that the suppression hearing should not have been held in the absence of Harmon, who was being examined at the State Hospital with regard to his mental capacity. At the hearing no one mentioned Harmon’s absence until the trial judge brought it up and expressed some concern about it. Even then, Harmon’s attorney made no objection and continued to participate in the hearing. When it ended the judge announced his rulings, but said that he would hold the record open in case the defense wanted to introduce additional evidence. At the trial defense counsel said he had nothing more to offer. It is now argued, however, that the hearing should not have been conducted in Harmon’s absence.
Even though an accused has a right to be present when any substantive step is taken in his case, we have recognized that the right may be waived by him or by his attorney. For instance, an attorney could waive his client’s presence when certain instructions were reread to the jury during their deliberation. Scruggs v. State, 131 Ark. 320, 198 S.W. 694 (1917). Here, however, Harmon’s presence at the suppression hearing was evidently more important than that of the accused in the Scruggs case, because the validity of Harmon’s own confession was being determined. He should have been present; so upon a new trial the suppression hearing must be conducted again if the State intends to introduce the confession and the items taken at the house, unless Harmon waives his entitlement to have the matters heard anew.
An argument is made that the jury did not represent a fair cross section of the county’s population, because no member of the panel expressed such a firm opposition to the death penalty that an excusal became necessary. If by any chance the same thing should happen at a new trial, there would be no error in the absence of a showing of some deliberate exclusion from the panel of persons opposed to the imposition of the death penalty.
We have already mentioned the court’s error in allowing a charge of robbery to be added to the information on the first day of the trial. The prosecutor convinced the trial judge that the amendment was merely for clarity, since capital felony murder had already been charged, with no bill of particulars being requested. The charge, however, was that of murder committed in the course of kidnapping; so the specific charge was in itself a bill of particulars. No excuse was offered for the prosecutor’s six-month delay in seeking the amendment. The nature of the charge was unquestionably changed by adding the offense of robbery. That amendment was not permissible in the absence of any notice to Harmon that he was to be required to defend an essentially different charge of capital murder. Ark. Stat. Ann. § 43-1024 (Repl. 1977). It is hardly even arguable that a person can fairly be sentenced to death upon a charge that was not made until the morning of trial, leaving no possibility for thorough preparation of a defense upon both the facts and the law.
Joe Harmon and Dorothy Rader lived together for perhaps a year before the homicide. During two months of that time they lived at a motel in Texas, where Harmon was able to support Ms. Rader and her children. The couple, however, did not hold themselves out as husband and wife, other than by living together. Upon similar facts we held that under Texas law there was no common law marriage, so that the woman could testify against the man. Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981). That case is controlling here upon the same issue.
The court properly refused a proffered instruction submitting voluntary intoxication as an affirmative defense. Such intoxication is no longer a defense except possibly with respect to a crime requiring specific intent. Ark. Stat. Ann. § 41-207; Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978); AMI Criminal, 4005 (1979). No instruction with respect to that particular possibility was requested. We do not imply that one would have been proper on the proof presented.
Finally, Harmon argues two contentions concerning the State’s proof of a previous conviction for manslaughter, submitted to the jury during the punishment phase of the trial as an aggravating circumstance. It is first insisted that the certificate attesting the conviction was inadmissible, because the certificate was signed by the warden of the Arkansas Department of Correction as purported proof of a conviction in Georgia. The objection is well taken and should have been sustained. Pending a retrial the State will have an opportunity to seek admissible proof.
It is also argued that the statute defining aggravating circumstances limits the use of previous convictions to those of felonies involving the use or threat of violence; so a conviction for manslaughter, which may be committed by reckless conduct, § 41-1504 (1) (c), is inadmissible without proof of details. See Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981). The statute, however, also permits the use of convictions for a felony creating a substantial risk of death or serious physical injury to another person. § 41-1305 (3). Manslaughter is undoubtedly such a felony.
Reversed and remanded. | [
80,
-22,
-88,
-67,
59,
96,
-118,
58,
98,
-14,
-13,
83,
-87,
-50,
0,
125,
-118,
111,
85,
105,
-92,
-109,
23,
-95,
-78,
-13,
121,
-43,
-78,
75,
62,
-43,
10,
112,
-50,
89,
98,
8,
-91,
80,
-114,
-108,
-16,
-15,
-102,
0,
49,
42,
36,
14,
101,
-114,
-77,
47,
30,
-59,
73,
42,
90,
-67,
64,
121,
-40,
71,
-19,
18,
-93,
-90,
-78,
1,
88,
52,
-40,
61,
0,
-8,
51,
-106,
-126,
84,
125,
-119,
12,
96,
98,
1,
92,
-52,
40,
-120,
47,
118,
-107,
-89,
-104,
72,
74,
47,
-106,
-35,
107,
-108,
42,
104,
-13,
95,
85,
104,
36,
-34,
-108,
-127,
13,
56,
-118,
-69,
-5,
55,
37,
112,
-51,
-30,
84,
100,
112,
-37,
15,
-14
] |
George Rose Smith, Justice.
We are called upon to consider the constitutional validity of the General Assembly’s fifth successive act creating a Motor Vehicle Commission. Act 388 of 1975; Ark. Stat. Ann., Title 75, Ch. 23 (Repl. 1979). The chancellor, relying upon our two previous decisions with respect to similar legislation, held this latest act invalid. We are convinced that in the two earlier cases the pertinent facts were not sufficiently developed to support our conclusion that the acts were unconstitutional. The present record is equally deficient in the presentation of facts affecting the validity of the 1975 act. We are therefore remanding the case for further development, not reaching the constitutional issue.
None of the legislature’s four earlier attempts to create a Motor Vehicle Commission survived for as long as two years. In the first statute, Act 182 of 1955, the legislature created a Motor Vehicle Commission with authority to license and regulate manufacturers and factory distributors of “new and unused” cars and franchised retail dealers in such cars. One franchised dealer promptly brought an action for a judgment declaring the act to be invalid because it did not also license and regulate used-car dealers, some of whom were shown to be obtaining and selling “bootleg” new cars. We held the act to be discriminatory in that it made an arbitrary classification between franchised dealers and used-car dealers. Rebsamen Motor Co. v. Phillips, 266 Ark. 146, 289 S.W.2d 170, 57 A.L.R. 2d 1256 (1956). The second statute, Act 530 of 1957, was so similar to the first act that it quickly met the same fate. Clinton v. General Motors Co., 229 Ark. 805, 318 S.W.2d 577 (1958).
The third regulatory measure, Act 199 of 1961, was referred to popular vote and was disapproved by a majority of almost six to one. See Compiler’s Notes, Ark. Stat. Ann. § 75-1501 (Repl. 1979). The fourth statute, Act 593 of 1973, was on its face a local act, because six sections were inserted to exempt various counties from its operation. Presumably it was for that reason that the General Assembly adopted the present superseding statute two years later.
The fifth statute, the 1975 act now before us, had been in force six years when its validity was challenged in this case by Cliff Peck Chevrolet, a franchised dealer having a contract with a General Motors subsidiary. The case arose from the Commission’s attempt to enforce its Regulation 1, a long directive which prohibits, among many other practices, advertising claims such as “Our prices are guaranteed lower than elsewhere” or “We guarantee to sell for less.” Cliff Peck asserted in its complaint that the Commission was threatening to revoke Cliff Peck’s license as a retail dealer because, as shown by a stipulated fact, Cliff Peck had advertised that the “best prices in Arkansas” were to be found at its dealership. The complaint, however, attacked not only Regulation 1 but also Act 388 in its entirety. The chancellor simply followed the Rebsamen and Clinton cases in holding the act invalid.
Act 388 is so nearly identical with the 1955 act held unconstitutional in Rebsamen that even the appellants make no effort to distinguish that case from this one, their position being that Rebsamen and Clinton should be overruled. We agree with that conclusion in the limited sense that the facts presented in those cases did not justify the court’s holding that there was an arbitrary classification as between franchised dealers and used-car dealers. There the scant testimony in the record merely showed that there were three used-car dealers in Pulaski county who were obtaining new cars from an undisclosed source and that only one of those dealers had a repair department for servicing the cars after their sale. We concluded on those facts alone that the act was discriminatory.
In Rebsamen we relied primarily upon our holding in Ex parte Deeds, 75 Ark. 542, 87 S.W. 1030 (1905), invalidating a statute which imposed a $200 license fee upon peddlers traveling over the county but exempted resident merchants from the fee. The Deeds opinion relied in turn upon the broad statement in Connolly v. Union Sewer Pipe Co., 184 U.S. 540 (1902), that the legislature “cannot divide those engaged in trade into classes and make criminals of one class if they do certain forbidden things, while allowing another and favored class engaged in the same domestic trade to do the same things with impunity.” In Connolly the court struck down an Illinois anti-trust statute because it exempted from its operation agricultural products or livestock while in the hands of the producer or raiser. The Connolly decision was expressly overruled in Tigner v. Texas, 310 U.S. 141 (1940), with the observation that its point of view had been worn away by the erosion of time. Certainly it would not be seriously argued today that a statute directed against monopolies would be invalid on its face if agricultural products were exempted from its prohibitions.
In each of the five Arkansas acts the General Assembly made findings that the proposed licensing and regulation of manufacturers and franchised dealers were necessary. None of the acts required used-car dealers to be licensed. In the act now under scrutiny the legislature declared its intention to prevent frauds, unfair practices, and discrimination, to avoid undue control of independent dealers by motor vehicle manufacturers, to prevent monopolies and preserve competition, to prevent the sale of unnecessary accessories not desired by the purchaser, to prevent false and misleading advertising, and to promote other purposes. Ark. Stat. Ann. § 75-2302 (Repl. 1979). In view of the familiar presumption in favor of constitutionality, such findings cannot be disregarded without proof that there is no factual basis for the classifications and prohibitions embodied in the act.
It may be inferred from the several statutes and from the arguments of counsel that there may be a need to curtail the power that motor vehicle manufacturers have over their dealers, that the new-car warranties given by franchised dealers may be a valid basis for classifying them differently from used-car dealers, that the consequences of misleading advertising are not the same with respect to new cars as with respect to used cars, and that there may be other factual grounds for the various regulatory powers that are vested in the Motor Vehicle Commission. Such matters have not even been touched upon in the present record, which consists only of the pleadings and a brief stipulation designed to bring the case within the holdings in Rebsamen and Clinton. We find it impossible to pass upon the constitutionality of the statute without these factual matters having been developed by proof. Because Cliff Peck was justified in relying upon our earlier cases as decisive of the constitutional issues, it is entitled to offer proof now that those decisions are no longer considered to be controlling. Foote’s Dixie Dandy v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980). The cause is therefore remanded to the trial court for further proceedings, where Cliff Peck will have the burden of proving that all or part of the statute is unconstitutional and where other parties, such as a representative manufacturer, may be brought into the suit if appropriate.
Reversed and remanded. | [
117,
-6,
80,
-68,
10,
-62,
18,
30,
91,
-88,
-27,
-109,
-83,
74,
-108,
49,
-21,
-1,
81,
107,
-11,
-78,
87,
107,
50,
-13,
-37,
-35,
-77,
75,
116,
60,
76,
112,
-54,
-99,
100,
-56,
-123,
94,
-18,
-118,
-69,
-19,
88,
-48,
52,
44,
82,
-117,
69,
-113,
-61,
46,
26,
-61,
41,
42,
89,
45,
-63,
-72,
-100,
-105,
77,
22,
51,
68,
-118,
37,
-8,
30,
28,
49,
56,
-8,
99,
-90,
-126,
92,
45,
-103,
8,
34,
98,
6,
33,
-59,
-4,
-120,
6,
-6,
29,
-122,
-106,
57,
66,
1,
-97,
31,
88,
18,
11,
-2,
-30,
85,
87,
108,
7,
-117,
-106,
-93,
101,
99,
-120,
8,
-21,
-29,
16,
113,
-51,
-10,
87,
85,
54,
-101,
71,
-96
] |
Darrell Hickman, Justice.
The only question of concern to us in this case is whether the trial court was wrong in denying a motion for a new trial. The law requires that if we find any substantial evidence to support the verdict of the jury, the trial court’s decision will be affirmed. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981). We find substantial evidence and affirm the trial court’s decision.
This lawsuit arose over a fire that occurred in a 55,000 barrel crude oil storage tank owned by the appellee, Cross Development Company of Smackover, Arkansas. The tank was located approximately three miles from Smackover. It was struck by lightning and caught fire on Sunday evening, July 7, 1974. The tank was over fifty years old and its roof was wooden and sheathed with steel. The lightning cut the roof, igniting either the wooden timbers supporting the roof, or the vapor inside the tank. A nearby resident saw the lightning strike and called the Smackover Fire Department and Mr. Nimrod Price, the president of Cross Development Company. The Smackover Fire Department, which is entirely volunteer, arrived at the fire in about thirty minutes. For assistance, someone called the El Dorado Fire Department, which is located about ten miles away, and Mr. J. L. Turner, who is the retired fire chief for American Oil Company which once had a plant in the area.
The fire got out of control, burning Sunday night and all day Monday. On Monday, the oil boiled over twice. The second time it erupted, a burning, lava-like substance flowed along the contour of the land. It is known by those familiar with such tanks that a boil over is inevitable when the fire gets out of control; the bottom of such tanks contains a foot or so of water that eventually turns to steam and pushes out the extremely hot oil. Some woods, a home, and several buildings were totally destroyed by fire.
The appellants were the owners of a feed mill and welding shop building that were destroyed. They sued Cross Development Company for $103,438 in compensatory and punitive damages, alleging that the company was negligent in failing to comply with the Arkansas Fire Code, failing to have adequate fire fighting equipment available, and failing to maintain an adequate dike or fire wall around the tank that would contain a boil over. The jury found for Cross Development Company on all issues.
The appellants’ motion for a new trial simply stated that the verdict should be set aside because it is “contrary to the preponderance of the evidence and contrary to the law.” After considering the motion, the court, in a lengthy order, found that the verdict would, indeed, be clearly against the preponderance of the evidence except that the jury could have concluded from the evidence presented that the Smack-over Fire Department’s actions were an independent intervening cause of the damages to the appellants and required safety measures would have been fruitless.
The trial judge, in his order, cited the evidence of the appellees’ negligence: That the company failed to comply with the Arkansas Fire Prevention Code since the tank did not have a floating roof and the surrounding fire wall did not include a flareback section to turn back a boil over, as the code requires; that the company had none of the customary fire fighting equipment; and, that no precautions were taken against lightning.
However, the trial judge also noted the evidence of an independent intervening cause of the damage. The trial judge referred to essentially undisputed testimony that the fire could have been put out in the first few hours if the Smackover Fire Department had applied foam and otherwise properly treated the blaze. There was testimony that the Smackover Fire Department refused to allow the El Dorado Fire Department to use its foam equipment and that Mr. J. L. Turner’s advice and assistance were rejected shortly after the fire started. Turner had testified that he could have extinguished the fire with two portable foam fire extinguishers if he had had help. He was told he was interfering and he left. The El Dorado Fire Department’s fire chief and one of its firemen said the fire could have and should have been quickly extinguished.
The trial court also noted that there was testimony that the lack of a flareback section on the dike would not have contained the boil over since one witness said that the oil poured out from the top of the tank and over the outer walls of the fire wall like an umbrella. This witness saw the second boil over.
On review, we do not decide the credibility of the witnesses; we only examine the record to see if there is substantial evidence to support the verdict. Lindsey v. Watts, 273 Ark. 478, 621 S.W.2d 679 (1981); Miller v. Tipton, 272 Ark. 1, 611 S.W.2d 764 (1981). The jury was instructed on independent intervening cause without objection by the appellants. Furthermore, the appellants did not state in the motion for a new trial, nor argue in their brief, the court was in error in giving the instruction. The jury was allowed to consider whether there was an independent intervening cause for the damages suffered by the appellants. The jury could have conceivably found that the actions of the Smackover Fire Department were an intervening proximate cause of the damage. This, coupled with the fact that there was testimony that a higher dike or fire wall would not have made any difference to the extent of damage, was sufficient evidence to support the jury’s verdict. Although there was testimony that the fire wall was not of the height required by the code, the jury could have found it to be adequate since a survey introduced by the appellants noted that the fire wall or dike would contain a 55,000 gallon spill.
We have serious doubts as to whether the court should have given the jury the instruction on independent intervening cause in this case. See Larson v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). But the appellants’ failure to object to this instruction is fatal to its case on appeal. We have held that the failure to object to an instruction, even if it erroneously states the applicable law, is a waiver of any error committed by giving it. Willis v. Elledge, 242 Ark. 305, 413 S.W.2d 636 (1967); Turkey Express, Inc. v. Skelton Motors, Inc., 246 Ark. 739, 439 S.W.2d 923 (1969). The appellant’s action in permitting this issue to go to the jury without objection precludes consideration of that issue on appeal.
The trial court, in its order denying a new trial, observed that the appellants did not plead or prove the facts necessary to raise the issue of collateral estoppel and thus take advantage of a prior judgment against the Cross Development Company in another lawsuit involving the same fire.
The appellants argue that the court was wrong in not declaring crude petroleum to be an inherently dangerous product when stored so that the law of strict liability would apply. There was no evidence presented by which the court could conclude that crude petroleum when properly stored is an inherently dangerous product. The court refused to instruct the jury on punitive damages and granted appellees’ motion for a directed verdict on that issue. Since no compensatory damages were awarded, and some are necessary to support a verdict for punitive damages, the court did not commit reversible error by granting the motion. Winkle v. Grand National Bank, 267 Ark. 123, 601 S.W.2d 559 (1980).
The appellants did object to the court’s instruction that a person is not liable for damages caused solely by an act of God. The instruction directs, however, that if the act of God concurs with another’s negligence to cause damages, the negligent person is not excused from liability. The instruction followed AMI 615 and was proper under the facts of this case.
Affirmed. | [
-12,
106,
-32,
-115,
8,
-31,
120,
-102,
87,
-85,
-11,
83,
-19,
-37,
13,
45,
102,
79,
-11,
123,
-42,
-73,
17,
12,
-58,
-13,
57,
-61,
-71,
-55,
-28,
-43,
76,
16,
-54,
-35,
-92,
72,
-57,
92,
70,
5,
59,
-32,
-39,
26,
-76,
115,
34,
15,
65,
-116,
-13,
41,
20,
-61,
77,
44,
-1,
-83,
83,
49,
-64,
13,
-1,
16,
-127,
-92,
-112,
65,
-24,
60,
-48,
53,
18,
-84,
115,
-74,
-122,
100,
33,
-115,
9,
-92,
99,
50,
13,
-81,
-24,
8,
47,
-66,
-113,
-96,
16,
41,
123,
11,
-65,
-107,
114,
22,
7,
120,
106,
-59,
92,
108,
18,
-125,
-106,
-29,
79,
40,
-100,
23,
-53,
3,
20,
116,
-49,
-94,
92,
4,
125,
-33,
15,
-65
] |
Robert H. Dudley, Justice.
This interesting case presents many questions about illegal exactions and an attorney’s conflict of interests.
Ark. Stat. Ann. § 19-4201 through 19-4218 (Repl. 1980) authorized cities to purchase or construct waterworks sys terns. In 1937 Ark. Stat. Ann. § 19-4219 (Repl. 1980) was enacted which authorized first and second class cities to create commissions to operate and manage their waterworks systems. That same year the City of Little Rock by ordinance created the Little Rock Waterworks Commission which operates and manages the system. The Board of Directors of the City, pursuant to § 19-4208, retained the authority to sell and encumber the property as well as to set rates. The same statute, § 19-4208, provides that the operating authority can pay surplus funds over to the city only after taking into account the cost of operations and maintenance, allowing for replacement costs and depreciation, providing for interest redemption and purchasing all outstanding bonds.
In 1965, the General Assembly, by Act 50, gave to the operating authority of any waterworks system the discretion to make voluntary contributions to the general fund of the municipality in lieu of taxes in return for police, fire and health protection. Ark. Stat. Ann. §§ 19-4273 through 19-4276 (Repl. 1980). The municipality cannot force payments to be made to it pursuant to this statute as the payments in lieu of taxes are discretionary with the operating authority.
In October, 1969, the City of Little Rock, by ordinance, levied a privilege tax on the waterworks commission. The tax was in the amount of $10,417 for the period of December 1, 1969 through December 31, 1969, and $125,000 for the year 1970. The ordinance contains the following provisions:
SECTION 3. The taxes hereby levied shall be paid in addition to any sums paid by the Little Rock Municipal Water Works under the provisions of Act 50 of 1965.
SECTION 4. The Little Rock Municipal Water Works is hereby authorized to pass on said taxes by levying an additional charge of twenty-five cents (25í) a month per meter upon resident consumers. The Water Works may terminate the services of any consumer who fails to pay such charge when due.
An identical ordinance was passed for the years 1971, 1972 and 1975. Beginning in 1973, the ordinances authorized the waterworks to levy a charge in the amount necessary to collect the amount of the tax, which was $167,652 in 1974; $144,000 in 1975; $145,000 in 1976; $146,500 in 1977; $148,500 in 1978; $156,822 in 1979; $322,500 in 1980; $339,066 in 1981 and $340,000 in 1982. The taxes have been paid to the city on a monthly basis at the rate of l/12th of the yearly levy.
On August 25, 1981, six residents of the city who were water users filed suit in the chancery court against the City of Little Rock alleging that the privilege tax was an illegal exaction prohibited by Article 16, § 13 of the Arkansas Constitution. The six taxpayers were represented by David Henry, a former assistant city attorney, who, at the time he filed this suit against the city, also was defending the city in another case for a fee. The city filed a motion asking that David Henry be disqualified because of his conflict of interests. The trial court refused to disqualify the attorney, found an illegal exaction, gave judgment against the city in the amount of $1,264,761.30 through March, 1982, plus interest at the rate of ten percent per annum until paid, and awarded David Henry an attorney’s fee in the amount of $316,190.00. We affirm the holding that the privilege tax is an illegal exaction, modify theamountof the judgment and disallow the attorney’s fee.
The illegal exaction. Municipalities have only those powers that have been delegated to them by statutes or by the Constitution, and any substantial doubt about the existence of a power in a municipal corporation must be resolved against it. Town of Dyess v. Williams, 247 Ark. 155, 444 S.W.2d 701 (1969), citing City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W.2d 486 (1967) and Yancey v. City of Searcy, 213 Ark. 673, 212 S.W.2d 546 (1948). A city tax which is not authorized by a delegated power of taxation is an illegal exaction. Schuman v. Ouachita County, 218 Ark. 46, 234 S.W.2d 42 (1950), citing Waters Pierce Oil Co. v. Little Rock, 39 Ark. 412 (1882).
Appellant city tacitly concedes that there is no constitutional or statutory authority delegating to it the authority to levy this privilege tax. However, it argues that, although its ordinance labeled the assessment a privilege tax, it is not really a tax. It contends that the terms franchise fee, franchise tax, rate, assessments, charges, privilege tax and privilege fee are interchangeable, and the use of one term instead of another does not necessarily invalidate a legislative enactment. See Eaton v. McCuen, 273 Ark. 154, 617 S.W.2d 341 (1981); Holman v. City of Dierks, 217 Ark. 677, 233 S.W.2d 392 (1950). The city then inductively reasons that the assessment or charge or rate imposed by the ordinances should be treated as a part of the rate for water validly set by the municipality pursuant to § 19-4208.
The appellant’s argument fails for a number of reasons. First, the assessment obviously is not a charge for services rendered to the waterworks. Those services are paid for in lieu of taxes pursuant to statutes, §§ 19-4274 and 19-4275, and are discretionary with the operating authority. Conversely, the tax before us is mandatory, in a set amount, and the ordinances provide that "the taxes hereby levied shall be paid in addition to any sums paid by the Little Rock Municipal Waterworks under the provisions of Act 50 of 1965.” Second, all other payments by the waterworks to the municipality which come from water rates must come from surplus accumulated in the operation fund only after taking into account the cost of operations and maintenance, allowing for replacement costs and depreciation, providing for interest redemption and the purchasing of all outstanding bonds. § 19-4208. Here the tax, originally at 25 cents per meter, was levied on the waterworks and passed on to the customer and then paid by the customer and passed directly back to the city without regard to the cost of operations, maintenance, depreciation and debt as set out above. Thus, it was not a part of the water rate. Third, the assessment was designated a privilege tax by the ordinances. It was clearly a tax, an unauthorized tax, and therefore an illegal exaction. We affirm the chancellor in so holding.
Contrary to appellant’s argument, Section 9 of Act 23 of the 1981 Extraordinary Session of the General Assembly does not authorize the imposition of the privilege tax challenged in this case. We affirm the chancellor’s granting of injunctive relief.
The amount of the illegal exaction to be recovered. The appellees argue, on cross-appeal, that no statute of limitations should have been applied and that they should be allowed to recover all money illegally exacted, over $2,000,000. The appellant contends the following in the alternative: that no refund is due, that the three year statute of limitations applies, or that the five year limitation should be applied and the recovery should be limited accordingly.
We do not find it necessary to decide the issues concerning statutes of limitation because we have always followed the common law rule prohibiting the recovery of voluntarily paid taxes. See, e.g., Searcy County v. Stephenson, 244 Ark. 54, 424 S.W.2d 369 (1968); Thompson, Comm’r. v. Continental Southern Lines, Inc., 222 Ark. 108, 257 SW.2d 375 (1953).
In Thompson, supra, this Court stated the general rule as follows:
Appellee seeks to recover voluntary payments made of taxes. This can not be done. Cooley in The Law of Taxation, Ch. 20, § 1282, gives this rule: “It is well settled that if the payment of a tax is a voluntary payment, it cannot be recovered back, except where a recovery is authorized by the provisions of a governing statute regardless of whether the payment is voluntary or compulsory.” (Vol. 3 at p. 2561); and further: “Where voluntary payments are not recoverable, it is immaterial that the tax or assessment has been illegally laid, or even that the law under which it was laid was. unconstitutional. The principle is an ancient one in the common law, and is of general application. Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as a reason why the State should furnish him with legal remedies to recover it back. Ignorance or mistake of law by one who voluntarily pays a tax illegally assessed furnishes no ground of recovery.” (Vol. 3 at page 2564).
This Court, one paragraph later, noted that Arkansas had no statute on the subject and that we follow the common law rule:
In Brunson v. Board of Directors of Crawford County Levee Dist., 104 Ark. 24, 153 S.W. 828, 829, 44 L.R.A., N.S., 293, Mr. Justice Hart, speaking for the Court, said: “In some of the states the right to recover illegal taxes paid under protest is given by statute. In this state, however, there is no statute regulating the matter, and if any recovery is had it must be under the rules of the common law. The common-law rule governing cases of this kind is laid down in the following cases: Lamborn v. County Commissioners, 97 U.S. 181, 24 L.Ed. 926; Union Pacific R. R. Co. v. Dodge County, 98 U.S. 541, 25 L.Ed. 196. These cases lay down the following rule: ‘Where a party pays an illegal demand, with full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release (not to avoid) his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary, and cannot be recovered back. And the fact that the party, at the time of making the payment, files a written protest, does not make the payment involuntary.’ ”
Id. at 115, 257 S.W.2d at 379.
Appellees contend that the common law rule prohibiting the recovery of voluntarily paid taxes has never been applied to an illegal exaction. While no case has specifically stated that the common law rule is applicable to recoveries pursuant to Article 16, § 13, the language quoted above clearly encompasses an illegal exaction under the constitutional provision. In addition, several of our cases have applied the common law rule to unconstitutional and illegal taxes rather than just to taxes illegally assessed or collected. See, e.g., Gates v. Bank of Commerce & Trust Co., 185 Ark. 502, 47 S.W.2d 806 (1931). Thus, the common law rule prohibiting the recovery of voluntarily paid taxes is applicable to illegal exactions which violate Article 16, § 13 of the Arkansas Constitution.
The trial judge was aware of this common law rule but held that the payments made under the challenged ordinances were not voluntary because the ordinances provided that the waterworks could discontinue the water service of any customer who failed to pay the tax. For example, the 1970 ordinance provided:
The Little Rock Municipal Water Works is hereby authorized to pass on said taxes by levying an additional charge of twenty-five cents (25Í) a month per meter upon resident consumers. The Water Works may terminate the services of any consumer who fails to pay such charge when due.
The case of Chapman & Dewey Land Co. v. Board of Directors St. Francis Levee District, 172 Ark. 414, 288 S.W. 910 (1926) is dispositive on the voluntariness issue. A part of that opinion is as follows:
Under these decisions, the coercion which will render a payment of taxes involuntary must consist of some actual or threatened exercise of power possessed by the party exacting or receiving payment over the person or property, from which the latter has no reasonable means of immediate relief, except by making payment.
But it is insisted by counsel for the plaintiff that the taxes alleged in the complaint takes the case at bar out of the operation of the principle decided in these cases and brings it within the rule announced in Dickinson v. Housley, 130 Ark. 259, 197 S.W. 25. We do not think so. In that case the collector refused to accept any sum less than the full amount demanded, and had the power to have sold the lands of the taxpayer in payment of the illegal tax. This would have constituted a cloud upon the title, and it became necessary for the owner to pay the illegal demand in order to prevent the sale. No such power existed in the board in the case at bar. If the plaintiff had refused to pay the taxes, the board of directors would have been compelled to institute proceedings against the landowner in the chancery court to collect the taxes, and the plaintiff could have presented the same matters as are set up in this case to defeat the collection of the taxes. In short, it could have defended a suit to collect the taxes upon the same ground that it bases its right to recover the taxes which it voluntarily paid.
Id. at 416, 288 S.W. at 911.
Likewise, the City of Little Rock, the party receiving payment, had no power to have the services of any consumer terminated. That discretionary power was given to the Little Rock Municipal Waterworks and, in turn, it never adopted any policy to terminate service to a customer who refused to pay the tax. Significantly, not one person testified that he or she in fact paid the tax because of coercion. Thus, we hold that the chancellor erred in failing to apply the common law rule prohibiting the recovery of voluntarily paid taxes. The taxes were involuntarily paid only after the date this suit was filed, August 25, 1981. All taxpayers, not just the six named plaintiffs, will be deemed to have paid their taxes involuntarily from the date of the complaint because all taxpayers, not just the named plaintiffs, are the real parties in this action. McCarroll v. Farrar, 199 Ark. 320, 134 S.W.2d 561 (1939).
The chancellor enjoined the appellant from assessing and collecting the privilege taxes before us, but then stayed the decree. As a result, the collection of these taxes has continued during the pendency of this appeal. We hold that all privilege taxes collected pursuant to the unconstitutional ordinances from the date of the filing of the complaint must be refunded, less reasonable costs of administration.
The attorney’s conflict of interests. Appellant contends that the trial court erred in refusing to disqualify appellees’ attorney. We agree, but reversal is not the proper remedy in this case.
In its motion to disqualify appellees’ attorney the appellant pleaded as follows:
Plaintiffs’ Counsel, David P. Henry, has filed this cause challenging a series of ordinances enacted by the City of Little Rock in 1969 and each year thereafter.
Said Counsel was employed by the City of Little Rock as an Assistant City Attorney, beginning on or about September 6, 1971, with said employment continuing until August 11, 1978. Further, said Counsel has represented the City of Little Rock since that time on other matters and remains the attorney of record for the City in the case of Phillips v. Weeks before Judge Eisele.
The appellant proved that appellees’ attorney had adverse interests as he was representing the city at the same time he was suing the city. The pertinent testimony, taken prior to trial on the appellant’s motion to have appellees’ attorney disqualified, is as follows:
Q. [Mr. Magruder, City Attorney]
Do you deny that you are currently the attorney of record in the Phillips v. Weeks lawsuit?
A. [Mr. Henry, Appellees’ Attorney]
No.
Q. Do you deny that the lawsuit is still pending, even though it’s been submitted back to the Court?
A. It’s not pending from the standpoint of anything to be done by the attorneys of record.
Q. That’s my point. It is, nevertheless, still pending, is it not?
A. Well, I have trouble with such a narrow —
Q. (Interposing) Let me see if I can confine that a little bit more for you. Would you identify this as Defendant’s Exhibit Number Two?
A. (Witness continuing) I can respond to your question, but I can’t do it with a yes or a no.
Q. Let me show you what has been identified as Defendant’s Exhibit Two and purports to be a certified copy from the United States District Clerk stating that the case is pending and you are the attorney of record. Would you disagree with that?
A. I don’t know what the U.S. District Clerk knows about the case or what his certification has to do with it. In my opinion, most or ninety-nine percent of the issues in that case has been resolved, and there is one unresolved issue pertaining to the police department practice of holding people under investigation.
Q. That issue is unresolved?
A. That one issue. To me, the case of Phillips v. Weeks is a dead horse. Now, I wouldn’t call that pending.
Mr. Magruder. Your Honor, I would offer at this point for Defendant’s Exhibit Two the certified copy from the U.S. District Court Clerk,
The Court. It’ll go in without objection.
# # #
Q. [Mr. Magruder cont.) Let me show you what has been identified as Defendant’s Exhibit Four which purports to be a series of statements or bills sent by the firm of Henry and Duckett to the City of Little Rock on the Phillips v. Weeks, and I ask if you recognize those. A. I recognize them, but one doesn’t have anything to do with Phillips v. Weeks. Two of them don’t.
* # *
Mr. Magruder. To make the record clear, Your Honor, I’d like of offer Defendant’s Ten, which is a copy of the Resolution by the City Board directing my office to pursue the disqualification of Mr. Henry.
Though we do not question the good faith of the attorney, both the conflict of interest and the appearance of it are too strong to ignore. The representation of conflicting or adverse interests will most often constitute professional misconduct. A lawyer is charged with a high degree of loyalty to his client. Suing and defending the same client at the same time is, at the very best, unseemly in that regard. The law holds an attorney to a high standard of professional conduct which includes the obligation to avoid even the appearance of impropriety. Code of Professional Responsibility Canon 9. Certainly, the attorney has not succeeded in avoiding such an appearance in the instant case.
Mr. Henry testified that the city attorney had assured him that the case of Phillips v. Weeks would never serve as the basis for a motion to disqualify. However, the City, by formal resolution of its Board of Directors on September 1, 1981, authorized the city attorney to move for disqualification. Even though the city attorney may have assured appellees’ attorney that conflicting representation would not be a basis for disqualification, it was a vain and useless act. The Supreme Court of New Jersey aptly and adroitly addressed the issue as follows:
Dual representation is particularly troublesome where one of the clients is a governmental body. So, an attorney may not represent both a governmental body and a private client merely because disclosure was made and they are agreeable that he represent both interests. As Mr. Justice Hall said in Ahto v. Weaver, 39 N.J. 418, 431, 189 A.2d 27, 34 (1963), “Where the public interest is involved, he may not represent conflicting interests even with consent of all concerned. Drinker, Legal Ethics, 120 (1953); American Bar Association, Opinions of the Committee on Professional Ethics and Grievances 89, 183 (1957).” Mr. Chief Justice Weintraub in a “Notice to the Bar,” 86 N.J.L.J. 713 (1963), stated:
“Because of some matters called to its attention, the Supreme Court wishes to publicize its view of the responsibility of a member of the Bar when he is attorney for a municipality or other public agency and also represents private clients whose interests come before or are affected by it. In such circumstances the Supreme Coujrt considers that the attorney has the affirmative ethical responsibility immediately and fully to disclose his conflict of interest, to withdraw completely from representing both the municipality or agency and
the private client with respect to such matter, and to recommend to the municipality or agency that it retain independent counsel. Where the public interest is involved, disclosure alone is not sufficient since the attorney may not represent conflicting interests even with the consent of all concerned. (Emphasis added.)
Re A. and B., 44 N.J. 331, 209 A.2d 101, 102-03, 17 ALR 3d 827 (1965).
The trial court was clearly in error in refusing to disqualify appellees’ attorney, but we do not consider reversal to be the proper remedy in this particular case. However, we cannot allow the attorney to profit from the impropriety. Accordingly, we refuse to approve an attorney’s fee, although an award of attorney’s fees in tax refund cases is authorized by Ark. Stat. Ann. § 84-4601 (Repl. 1980).
Other issues. Appellant city asserts a number of other points and asks reversal on each of them. While we agree that the trial court committed other errors, they are not prejudicial errors and do not require reversal.
The appellant contends that the trial court erred in refusing to require appellees to comply with ARCP Rule 23, the class action rule. We agree. Appellees were not seeking just the return of their property which had been illegally exacted, but instead in their complaint asked for over $2,000,000, attorney’s fees and a permanent injunction against the tax. Rule 23 does not conflict with the constitutional provision: it sérves as a rule of procedure in a class action case of this nature. As stated by Garner, Sloan and Haley in Taxpayers Suits to Prevent Illegal Exactions in Arkansas, 8 Ark.L.Rev. 129 (1954) at 135:
Unlike certain other provisions in the Arkansas Constitution, Article XVI, Section 13 is self-executing. But even though no legislative declaration is required for its efficacy, there is authority to the effect that the legislature may regulate the procedure so long as the Constitutional guarantee is not abridged. Certainly it is agreed that the statute of limitations applies to actions under this provision, just as in any other litigious circumstance. But equally certainly any statute that conflicts with, or restricts the scope of, this provision is void .... [footnotes omitted.]
The trial judge should have made the appellees comply with Rule 23, but there is no prejudice. Our common law makes the type of action a class action and requires a complete adjudication of a fully adversary case. In McCarroll v. Farrar, 199 Ark. 320, 134 S.W.2d 561 (1939), this Court quoted from Rigsby v. Ruraldale Consolidated School District No. 64, 180 Ark. 122, 20 S.W.2d 624 (1929) as follows:
Where a citizen and taxpayer brings an action in behalf of himself and other taxpayers against a municipality every citizen is regarded as a party to the proceedings, and is bound by the judgment entered therein. In such cases the people are regarded as the real parties. For example the judgment in a suit brought by taxpayers of a town against the town and a railroad company, to enjoin the issue by the town of bonds to the company, by which it is adjudged that such bonds should issue, is binding on all the other taxpayers of the town, though not parties to the suit, and the questions involved therein are res judicata in a second suit by another taxpayer to restrain the payment of interest on the bonds. In all such cases, however, the first judgment must be bona fide.
Here there was a final adjudication of a fully developed adversary case. As a matter of law this was a class action. Thus no prejudice has been suffered by appellant as a result of the ruling.
The chancellor also erred in not requiring that the Attorney General be served with notice of the proceeding and be given an opportunity to be heard as required by Ark. Stat. Ann. § 34-2510. See, e.g., Roberts, County Judge v. Watts, County Clerk, 263 Ark. 822, 568 S.W.2d 1 (1978). Appellees argue that § 34-2510 is not applicable to this case because this is not a declaratory judgment action but rather is simply a suit pursuant to a self-executing constitutional provision to recover illegally exacted money. That argument overlooks the fact that this is a class action seeking to declare thirteen past and present ordinances invalid and seeking a permanent injunction against future collections of the privilege tax. Since the statute requires service on the Attorney General but does not require him to appear or to be made a party, the requirement of service is not jurisdictional. Therefore, even though noncompliance with the notice requirement is generally reversible error, reversal is not mandated by the statute. The purpose of the notice requirement is to prevent an ordinance or statute from being declared unconstitutional in a proceeding which might not be a fully adversary and complete adjudication. Frequently, the Attorney General chooses not to appear in cases of this nature. In this particular case the attorneys for the City of Little Rock prepared exhaustive briefs in both the trial and appellate courts and our own research fails to disclose any points not argued. Thus we find no prejudice to appellant as a result of this error. This holding is limited to the facts of this particular case.
The appellant similarly contends that the trial court erred procedurally in not requiring that the operating authority and its commissioners be made parties pursuant to Ark. Stat. Ann. § 34-2510. The ordinances levied the tax against the waterworks and technically it is a necessary party. However, the same ordinance passed on the tax to the consumer and thus the waterworks was merely a conduit for the City of Little Rock. As a result, the matter is one of form and not substance. Hence, there is no prejudice to any of the parties and we do not reverse on this point.
This case comes to us on appeal from chancery court. On appeal we hear equity cases de novo on the record made below and will generally attempt to resolve all issues and dispose of them. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). The appellate court may always enter such judgment as the chancery court should have entered upon the undisputed facts in the record. Larey, Comm’r. v. Continental Southern Lines, 243 Ark. 278, 419 S.W.2d 610 (1967). The illegal taxes are still being collected and that ought to be stopped. In addition, we are satisfied that, as a practical matter, it would be a waste of judicial resources to reverse and remand on the basis of the errors discussed above. This case has been extensively litigated and, because rec tifying these procedural matters would not affect the outcome on the merits, no purpose would be served by a reversal.
Appellant contends that no refund may be had because Article 16, § 13 of the Arkansas Constitution provides only for injunctive relief. The constitutional provision has not been so narrowly construed. As correctly and concisely stated in 8 Ark.L.Rev. 129 at 133, supra:
Injunctive relief is by far the most frequent remedy sought by complainants when suing under the authority of Article XVI, Section 13; but it is not the only remedy. Suits have been brought, and allowed, to cancel a deed; to recover sums of money; to have an ordinance declared void; to set aside a default judgment; to appeal a quorum court action; to have an accounting of taxes collected but not accounted for; and so forth. Also it has been held that mandamus lies at the instance of a taxpayer to compel officers to comply with an initiated act fixing their salaries and compensation. [Footnotes omitted.]
Appellant also contends that the chancellor erred in awarding post-judgment interest. We find no error. The award of post-judgment interest was correct. Ark. Stat. Ann. § 29-124 (Repl. 1979) provides that judgments shall bear interest at the rate of 10 percent per annum. In applying this statute, this Court in Shofner, Administrator v. Jones, 201 Ark. 540, 145 S.W.2d 350 (1940), stated:
The legislative intent seems to have been that all judgments should bear interest except those expressly excluded; and since claims against estates when converted into judgments are not excepted, the rule inclusio unius est exlusio alterius applies. . . .
Since judgments against municipalities are not excluded in Ark. Stat. Ann. § 29-124, the holding requires that the judgment entered bear interest until paid at the rate of 10 percent per annum.
The appellant is correct in its contention that the full amount of the refund should not be awarded personally to appellees. As we stated in Laman v. Moore, 193 Ark. 446, 100 S.W.2d 971 (1937): “Neither the original plaintiff nor the intervenor could recover a personal judgment against any of the appellees except for the benefit of all taxpayers of the City.” The appellees are appearing as representatives of a class. Accordingly, the judgment must be modified to reflect that the refund is for the benefit of all taxpayers.
Numerous other points are raised but we do not consider it necessary to decide them because of the disposition of the case.
The appellant did not designate as a point of appeal the system of refunding which was ordered by the trial court.
The case is affirmed in part, modified in part and remanded to the trial court for refund proceedings which shall be consistent with this opinion.
Adkisson, C.J., and Purtle, J., dissent.
Hays, J., not participating. | [
-10,
-5,
-2,
108,
88,
-64,
24,
-110,
83,
-69,
-11,
115,
-17,
68,
16,
97,
-21,
125,
116,
97,
-25,
-94,
69,
106,
-54,
-45,
-7,
-61,
-69,
77,
-20,
-123,
78,
57,
-54,
-99,
70,
-61,
-59,
-38,
2,
32,
10,
69,
-3,
68,
52,
107,
34,
-61,
113,
-116,
-13,
41,
20,
-22,
109,
60,
-35,
39,
83,
-77,
-102,
-115,
127,
20,
1,
-26,
-112,
5,
-32,
28,
-104,
113,
-103,
-24,
115,
-90,
-126,
101,
69,
-101,
44,
96,
98,
18,
-127,
-21,
-80,
-116,
4,
-1,
-115,
-92,
-110,
121,
2,
-113,
-66,
22,
116,
-122,
39,
-10,
-5,
-107,
-37,
110,
3,
-114,
-44,
-31,
-67,
100,
13,
3,
-49,
71,
48,
116,
-122,
-94,
-34,
71,
18,
-101,
6,
-43
] |
W. H.“Dub” Arnold, Chief Justice.
The instant appeal arises from a medical malpractice action filed by the appellant, Franklin David Chambers, M.D., against the appellee, Harold Patrick Stern, M.D. On appeal, Chambers challenges the trial court’s orders (1) granting Dr. Stern’s motion to dismiss or, alternatively, his motion for summary judgment, based upon Dr. Stern’s entitlement to absolute judicial immunity, (2) striking evidence filed by Chambers in supplementation of his response to Dr. Stern’s summary-judgment motion, and (3) expanding judicial immunity to medical “treatment” in violation of Chambers’s constitutional right to a jury trial.
Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 1—2(b)(6) (1998). We accepted certification of this case from the Court of Appeals in order to resolve an issue of first impression, namely, whether the application of judicial immunity to a court-appointed physician engaged in medical “treatment” violates a party’s constitutional right to a jury trial. Although we do not reach the constitutional issue, we reverse and remand on appellant’s first point. Specifically, we hold that the trial court erred in granting appellee’s summary-judgment motion because genuine issues of material facts remain.
Chambers commenced his medical malpractice action against Dr. Stern, and other parties not relevant to this appeal, on June 30, 1997. Dr. Stern had been appointed by a chancery court to assist it in evaluating custody and visitation issues arising from Chambers’s pending divorce action. In part, the chancellor ordered that Dr. Stern meet, evaluate, and counsel Chambers, his minor children, and his former wife, throughout the divorce proceedings. Chambers and his wife agreed to the appointment of Dr. Stern, who over a four-year period evaluated them and their children, engaged them in therapy, and reported his findings, observations, and recommendations to the chancellor.
Subsequently, Chambers contended that Dr. Stern committed malpractice during the therapy or “treatment” phase with the family members. In response, Dr. Stern filed a motion to dismiss or, alternatively, a motion for summary judgment, claiming that he was entitled to judicial immunity while he was carrying out the chancery court’s order. After reviewing the parties’ pleadings, exhibits, depositions, and affidavits, the trial court agreed with Dr. Stern and dismissed the malpractice action. Notably, the trial court concluded that Dr. Stern was entitled to absolute judicial immunity, extending from the chancellor’s order appointing him to evaluate and treat the parties. From the order dismissing Chambers’s malpractice action, comes the instant appeal.
Summary-judgment motion
Appellant’s first point on appeal challenges the trial court’s order granting Dr. Stern’s motion for dismissal or, alternatively, his motion for summary judgment. Generally, this court reviews a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff, here, Chambers. See Hames v. Cravens, 332 Ark. 437, 440-41, 966 S.W.2d 244 (1998) (citing Neal v. Wilson, 316 Ark. 588, 595-96, 873 S.W.2d 552 (1994) (citing Gordon v. Planters & Merchants Bancshares, Inc., 310 Ark. 11, 832 S.W.2d 492 (1992); Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989)); Mid-South Beverages, Inc., 300 Ark. 204, 205, 778 S.W.2d (1989) (citing Battle, 298 Ark. 241))). Significantly, a trial judge must look only to the allegations in the complaint to decide a motion to dismiss. Hames, 332 Ark. at 441 (citing Neal, 316 Ark. at 596 (citing Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992)); Mid-South Beverages, Inc., 300 Ark. at 205 (citing Battle, 298 Ark. 241))).
Although the trial court “dismissed” Chambers’s action, it acknowledged that it considered matters outside the parties’ pleadings, including exhibits, depositions, and affidavits. Accordingly, we treat the trial court’s order as one granting Dr. Stern’s motion for summary judgment. In reviewing summary-judgment cases, this court need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Further, the moving party always bears the bur den of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the.moving party. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (1998); Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 453, 966 S.W.2d 241, 243 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).
Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 359, 824 S.W.2d 387, 388 (1992). However, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Collyard v. American Home Ins. Co., 271 Ark. 228, 230, 607 S.W.2d 666, 668 (1980).
In his response to Dr. Stern’s summary-judgment motion, Chambers asserted that the trial court impermissibly expanded the doctrine of judicial immunity to cover a court-appointed physician’s “treatment” of parties. The rationale behind judicial immunity is to maintain an independent and impartial judiciary. See generally, 48A C.J.S. § 86 (1981 & Supp. 1999). When a public officer is granted discretion and empowered to exercise his independent judgment, like a judge, he becomes a quasi-judicial officer and may enjoy judicial immunity when he is acting within the scope of his authority. See 46 Am. Jur. 2d § 70 (1994 & Supp. 1999).
We recendy examined the concept of judicial immunity in Robinson v. Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998). We noted that judicial immunity is absolute immunity, and we adopted a six-factor test to be considered in determining absolute immunity: (1) the need to assure that the individual can perform his functions without harassment or intimidation, (2) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct, (3) insulation from political influence, (4) the importance of precedent, (5) the adversary nature of the process, and (6) the correctability of error on appeal. Robinson, 333 Ark. at 670, 970 S.W.2d at 296. Consistent with these factors, the parties agree that absolute judicial immunity extends to physicians appointed by courts to assist in “evaluations.” However, the parties dispute whether judicial immunity continues to shield the court-appointed physician when the evaluation phase progresses to treatment or therapy. Significandy, there is no Arkansas case law on point.
We look, then, to other jurisdictions that have considered the issue before us. For example, in Myers v. Morris, 810 F.2d 1437 (8th Cir. 1987), the Eighth Circuit considered the issue of when immunity is appropriate and concluded that:
nonjudicial persons who fulfill quasi-judicial functions intimately related to the judicial process have absolute immunity for damage claims arising from their performance of the delegated functions.
Myers, 810 F.2d at 1466-67 (citing Demoran v. Witt, 781 F.2d 155, 157 (9th Cir. 1986)).
Similarly, the Supreme Court of Iowa first addressed the issue in Muzingo v. St. Luke’s Hosp., 518 N.W.2d 776 (Iowa 1994). Prior to Muzingo, the Iowa court extended quasi-judicial immunity to nonjudicial officers when their actions were “integral to the judicial process.” Muzingo, 518 N.W.2d at 777. However, in Muzingo, the key issue before the court was whether a court-appointed psychiatrist’s and hospital’s activities were an integral part of the judicial process so that to deny immunity would dis-serve the broader public interest that nonjudicial officers act without fear of liability. The high court determined that the court-appointed psychiatrist and hospitals were entitled to quasi-judicial immunity because they were acting as an arm of the court. In support of its position, the court also cited, with approval, the Eighth Circuit’s decision in Myers. Additionally, the court noted that the focus of its inquiry was on the nature of the function performed and not on the identity or title of a particular actor. Id.
Public policy considerations also compel us to extend judicial immunity to court-appointed therapists. Psychologists and other experts would be reluctant to accept appointments if they were subject to personal liability for actions taken in their official capacities. See Doe v. Hennepin County, 623 F. Supp. 982, 986 (D.C. Minn. 1985). In that vein, we agree with the Minnesota District Court that court-appointed therapists are entitled to absolute immunity for acts committed “within the scope of their appointments.” Doe, 623 F. Supp. at 986.
The key issue in the instant case is whether Dr. Stern was acting as an arm of the court and performing a quasi-judicial function, or whether he exceeded the scope of the court’s order. Notably, in Doe, 623 F. Supp. 982 (D.C. Minn. 1985), the plaintiffs could not overcome the therapist’s immunity by merely asserting that she was not a good psychologist, or that she should have been a better psychologist. Id. In fact, the Minnesota court agreed that the psychologist was entitled to summary judgment as a matter of law because (1) there was no showing that the psychologist was not functioning as a psychologist at all relevant times, (2) the plaintiffs agreed to participate in counseling and selected the therapist, (3) the therapist was officially appointed by the court, and (4) the acts of which the plaintiffs complained were carried out within the scope of the court-appointed capacity. Doe, 623 F. Supp. at 986-97.
In conclusion, we hold that a court-appointed physician is entitled to judicial immunity so long as he is serving an integral part of the judicial process, by carrying out and acting within the scope of a court’s order. Flowever, from our review of the record before us, the trial court failed to make specific, written findings, in its June 4, 1998, order granting Dr. Stern’s motion to dismiss, that Dr. Stern did, in fact, act within the scope of his court appointment during the relevant time periods. Accordingly, on remand, the trial court must determine as a matter of law whether Dr. Stern’s actions were within the scope of his court- appointed capacity, and if so, his actions taken pursuant to the appointment are entitled to judicial immunity.
However, if the trial court determines that Dr. Stern’s actions were outside the scope of the court’s appointment, it must determine at what point Dr. Stern exceeded the order and, consequently, forfeited his immunity. Specifically, the trial court must review Dr. Stern’s involvement with the Chamberses from June 22, 1993, to April 18, 1994, in light of the chancery court’s June 22, 1993, temporary relief order directing the following:
That while the Court does not find a physical and mental evaluation of the parties or the children appropriate, the Court does find that a qualified therapist or counselor agreed to by the parties should meet with and counsel the parties and the children relative to the divorce proceedings in which they are involved and the visitation and other matters related thereto and to conduct all necessary evaluations on the parties and children in connection therewith; that only one therapist or counselor should be used for all the children and the parties and that therapist or counselor should report directly to the Court his or her findings and observations and the Court will handle the release of such report to the attorneys for the respective parties; that if the parties are unable to agree on the therapist or counselor to be used, the Court will appoint a therapist or counselor after giving each of the parties an opportunity to supply the Court with the names and qualifications of any therapists or counselors suggested by them for use herein; that Defendant shall be responsible for the payment, as and when due, of all charges made by the therapist or counselor; and that both the parties shall cooperate with and be responsive to the requests and directions of the therapist or counselor involved.
(Emphasis added.)
Next, the trial court must review Dr. Stern’s interactions with the Chamberses from April 18, 1994, through the later of (1) the last therapy session by any family member with Dr. Stern, or (2) Dr. Stern’s final communication with the chancery court, in light of the chancery court’s April 18, 1994, divorce decree, directing the following:
The parties and the children are directed to cooperate with the Court appointed therapist, H. Patrick Stern, M.D., to resolve visi tation problems. Visitation is to be pursuant to Dr. Stern’s direction pending further order of the Court. The Defendant is hereby directed to pay all charges associated with the subject therapy related to visitations problems pending further order of the Court.
(Emphasis added.) Only after the trial court resolves the aforementioned legal issues may the jury consider the merits of appellant’s malpractice claim.
Viewing the evidence in the light most favorable to Chambers, resolving any doubts against Dr. Stern, and finding that there remain genuine issues as to material facts, we hold that the trial court erred in finding that Dr. Stern was entitled to a judgment as a matter of law. In light of our holding, we need not reach the merits of appellant’s remaining arguments.
Reversed and remanded.
Glaze, J., dissents.
Whether absolute immunity exists is a question of law for the courts. See generally 46 Am. Jur. 2d § 68 (1994 & Supp. 1999).
We render no opinion regarding (1) the validity of the trial court’s instruction that, “Visitation is to be pursuant to Dr. Stern’s direction pending further order of the Court,” or (2) the effect of the validity of that instruction upon the application of judicial immunity to Dr. Stern. The instruction’s validity was not challenged, and these issues are not before us on appeal. | [
-80,
-8,
-4,
29,
8,
-29,
114,
-102,
64,
-118,
103,
115,
-83,
-37,
-123,
111,
-39,
125,
96,
115,
-35,
-73,
87,
0,
-78,
-5,
-38,
-105,
-72,
-18,
-9,
127,
76,
104,
-118,
-107,
70,
-53,
-55,
80,
-58,
8,
-87,
108,
-47,
-109,
-72,
126,
92,
15,
53,
-34,
-29,
44,
63,
-57,
-52,
40,
91,
60,
-48,
-104,
-120,
13,
127,
48,
-79,
34,
-100,
-121,
88,
46,
-128,
-79,
1,
-20,
113,
-74,
-126,
116,
78,
-71,
8,
98,
98,
-80,
81,
101,
-8,
-88,
29,
47,
13,
-121,
-101,
73,
-55,
4,
-74,
-65,
120,
94,
15,
126,
105,
-36,
31,
44,
10,
-49,
-110,
-79,
-49,
120,
-36,
0,
-13,
-105,
16,
113,
-60,
-30,
92,
71,
123,
-1,
122,
-74
] |
W. H.“Dub” Arnold, Chief Justice.
This is a case involving warrantless activity surrounding entry into the appellant’s home and his eventual arrest for the offense of driving while intoxicated, first offense. On December 21, 1997, at approximately 1:00 p.m., appellant was allegedly seen driving erratically by another driver. The citizen followed appellant to his home and called the police. Based on the citizen’s information, the officer approached appellant’s home, where he was admitted into the house by appellant’s visiting mother-in-law, Ms. Lilly Wise. When the officer asked for the appellant, Ms. Wise went to appellant’s bedroom to retrieve him; the officer followed her. In the bedroom, the officer questioned appellant, administered field-sobriety tests, and arrested appellant for the offense of driving while intoxicated (DWI), first offense, pursuant to Ark. Code Ann. § 5-65-103 (Repl. 1997).
In the trial court, appellant filed a motion to suppress the evidence based on the officer’s alleged unlawful arrest. A hearing was held on the motion, and the motion was denied. Appellant then entered a conditional plea of guilty to DWI, first offense, and was sentenced to serve one day in the county jail and pay a fine of $350.00. Appellant now appeals from the trial court’s denial of his motion to suppress pursuant to Arkansas Rules of Criminal Procedure, Rule 24.3(b). Appellant asserts the following on appeal:
1) The police had no authority to enter appellant’s home to make a warrantless arrest for a minor offense; and
2) No valid consent was given to allow police to enter appellant’s home to make a warrantless arrest.
We agree with the appellant; and, for the following reasons, we reverse the trial court and dismiss the case.
I. Seriousness of offense and exigent circumstances
A warrantless entry into a private home is presumptively unreasonable. Welsh v. Wisconsin, 466 U.S. 740 (1984); Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992). The burden is on the State to prove the warrantless activity was reasonable. Id.; Woffard v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). On appeal, this Court will make an independent determination based on the totality of the circumstances to ascertain whether the State has met its burden. Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997).
The U.S. Supreme Court held in Payton v. New York, 445 U.S. 573 (1980), that a warrantless felony arrest in the home is prohibited under the Fourth Amendment, absent probable cause and exigent circumstances. The Court emphasized:
In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
Id. at 590 (emphasis added).
In the case at bar, the officer acted solely on the information of a citizen who allegedly saw the appellant driving his vehicle erratically and who followed appellant home. The officer entered appellant’s home without a warrant, based on a private citizen’s suspicions that appellant had committed a misdemeanor traffic offense, in order to search for appellant, and eventually arrest him. In Welsh v. Wisconsin, supra, the “firm line” of the Fourth Amendment drawn by Payton was emphasized and underscored in its application to warrantless arrests in the home for non-felony minor offenses. The facts in Welsh are very similar to the case at bar.
In Welsh, a witness observed a car which was being driven erratically and which swerved off the road. The driver got out of the car and walked away. When the police arrived, the witness told them what he had seen, and the police checked the car’s registration. Without obtaining a warrant, the police went to the home of the registered owner of the car, gained entry, and found the owner lying in bed. The car owner was then arrested for operating a motor vehicle while under the influence of an intoxicant and taken to the police station where he refused to take a breathalyzer test. To avoid license revocation, the car owner requested a hearing on his refusal to take the test.
The trial court concluded that the arrest was lawful and that the owner’s refusal to take the test was unreasonable; the court then suspended his license. The suspension order was vacated by the Wisconsin Court of Appeals, which concluded that although the State had demonstrated probable cause to arrest, it had not established the existence of exigent circumstances. The Supreme Court of Wisconsin reversed the Court of Appeals, holding that there were exigent circumstances in the case —■ the need for hot pursuit of a suspect, the need to prevent physical harm to the offender and the public, and the need to prevent destruction of evidence. On certiorari, the United States Supreme Court vacated and remanded, holding that absent exigent circumstances, a warrantless nighttime entry into the home of an individual to arrest him for a civil, nonjailable traffic offense is prohibited by the special protection afforded the individual in his home by the Fourth Amendment.
While the U.S. Supreme Court did hold, in Welsh, that for purposes of a warrantless home arrest, an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made, it continued that application of the exigent-circumstances exception to the warrant requirement of the Fourth Amendment in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense, such as the one involved in Welsh, has been committed. We adopted this holding in Butler v. State, supra.
The Supreme Court in Welsh held further as follows: that a warrantless home arrest for a civil, nonjailable traffic offense is not justified by the hot-pursuit doctrine where there was no immediate or continuous pursuit of the offender from the scene of a crime; that a warrantless home arrest for a civil, nonjailable traffic offense is not justified as a threat to public safety, which is an exigent circumstance exception to the warrant requirement of the Fourth Amendment, where the offender had already arrived home and had abandoned his car at the scene of the accident; and, that a warrantless home arrest for driving while intoxicated is not justified by the need to preserve evidence of the offender’s blood-alcohol level, the imminent destruction of evidence being an exigent circumstance exception to the warrant requirement of the Fourth Amendment, where a State has chosen to classify the first offense for driving while intoxicated as a noncriminal, civil-forfeiture offense for which no imprisonment is possible. Given the State’s interest in precipitating an arrest, the Court continued, a warrantless home arrest cannot be upheld simply because evidence of the offender’s blood-alcohol level might have dissipated while the police obtained a warrant.
In the case at bar, the State contends that the gravity of the offense of driving while intoxicated in Arkansas indicates that the State has a strong interest in arresting persons suspected of having committed it. See Byrd v. State, 317 Ark. 609, 879 S.W.2d 434 (1994) (characterizing DWI as serious); see also Act 1983, No. 549, § 19 (providing that DWI is “a serious and immediate threat to the safety of all citizens of this State[ ]”). The State further contends that because of the State’s strong interest in precipitating an arrest in DWI cases, the need for preservation of evidence, such as blood-alcohol content, is great and, therefore, created an exigent circumstance in the instant case.
First-offense driving while intoxicated is a criminal offense in Arkansas, with penalties including imprisonment from one day to one year (although the court may order public service in lieu of jail), as well as fines from $150 to $1,000. See Ark. Code Ann. §§ 5-65-103; 5-65-lll(a) (Repl. 1997)(imprisonment); 5-65-112(1) (Repl. 1997)(fines). In addition, a first-offender’s driver’s license must be suspended for 120 days, and the offender must attend an alcohol-education program. See Ark. Code Ann. §§ 5-65-104(a)(4)(A)(I) (Repl. 1997)(suspension); 5-65-115(a) (Repl. 1997)(program). However, DWI, first offense, is classified as a misdemeanor in Arkansas.
It is true that this Court and the legislature of this State have recognized driving while intoxicated as a serious offense. The question then becomes whether, in the statutory scheme of criminal offenses, the seriousness of DWI, first offense, rises to the level that would warrant violation of the Fourth Amendment’s special protection afforded to the individual in his home, as articulated in Payton, supra, and Welsh. We hold that it does not.
In Welsh, the Supreme Court stated:
Our hesitation in finding exigent circumstances, particularly when warrantless arrests in the home are at issue, is especially appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.
When the government’s interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.
Welsh, supra, at 750 (emphasis added). Although the Supreme Court has declined to consider the scope of any exception for exigent circumstances that might justify warrantless home arrests, thereby leaving to the lower courts the initial application of the exigent-circumstances exception, prior decisions of that Court have emphasized that exceptions to the warrant requirement are “few in number and carefully delineated,” and that the police bear a heavy burden. See, Welsh, supra, at 749; Payton, supra, at 583; United States v. United States District Court, 407 U.S. 297, 318 (1972).
There is no doubt that driving while intoxicated is serious. However, when compared to other criminal offenses involving violence, or threats of violence which endanger life or security, for instance, DWI, first offense, becomes relatively minor in the Fourth Amendment analysis. Although DWI is a serious offense, the Arkansas legislature has chosen to classify DWI, first offense, as a misdemeanor. The offense of DWI does not become a felony in this State until the fourth offense has been committed.
Further, although our statute provides for up to one year imprisonment for violation of same, the penalties imposed for DWI, first offense, in this State are similar to those attaching to the nonjailable traffic offense involved in Welsh, supra, and the misdemeanor penalties discussed in the Eighth Circuit case of Patzner v. Burkett, 779 F.2d 1363 (8th Cir. 1985). The Eighth Circuit applied the holding in Welsh to Patzner, which was also a driving-while-intoxicated case. The facts were very similar to those in Welsh, and as in Welsh, the Patzner court came to the same con elusion: the government’s interests did not override the protections of the Fourth Amendment and the firm line drawn by Payton.
The Patzner court reached this conclusion even though the State (North Dakota) classified the offense as a criminal one and the penalty was slightly greater than that in Welsh. There, the court found that the “minor difference in penalty is not sufficient to support a result different from that reached in Welsh.” Patzner, 779 F.2d at 1368-69. In comparison, the South Dakota Supreme Court reached the same result for a first offense of driving while intoxicated in the case of State v. Flegel, 485 N.W.2d 210 (1992), where the penalty provided for up to one year imprisonment, just as Arkansas does, noting that “like the Eighth Circuit in Patzner, we hold the minor difference in penalty is not sufficient to support a result different from that reached in Welsh.” Id. at 215.
Therefore, because the penalties imposed for DWI, first offense, in this State are similar to those attaching to the nonjailable traffic offense involved in Welsh and the misdemeanor penalties discussed in Patzner, we, too, hold that the minor difference in penalty is not sufficient to support a result different from that reached in Welsh.
Nonetheless, with regard to the exigent-circumstance argument, the risk of destruction of evidence is an established exigent circumstance that can justify a warrantless entry. See Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). The State contends that because the appellant’s blood-alcohol content decreases with the passage of time, it is therefore equivalent to “destruction of evidence,” and that determining his blood-alcohol content is, then, an “exigent circumstance” that justifies the warrantless entry into appellant’s home.
In the instant case, we hold that, while neither party disputes the existence of probable cause to effect the arrest, sufficient exigent circumstances did not exist to overcome the strong presumption that warrantless home arrests are unreasonable. The police received a report from a lone witness that a pickup truck driven by appellant was seen being driven erratically. It was further reported that appellant had driven to a residence, had gone inside, and was in bed. As in Welsh, there was no question of “hot pursuit” on the part of the police, nor was there any question that appellant was a threat to the safety of the public, since he had already arrived home and was no longer in his car. Furthermore, considering the Payton, Welsh, and Patzner analyses, and the nature of the offense in the statutory scheme of criminal offenses, it must be determined that a warrantless home arrest cannot be upheld simply because evidence of the offender’s blood-alcohol level might have dissipated while the police obtained a warrant.
- II. Consent
The State contends that even if exigent circumstances did not justify the officer’s warrantless entry into appellant’s house, the evidence obtained by the officer after the entry is not subject to suppression because the entry was consensual. As a general matter, a warrantless entry made with consent does not violate the Fourth Amendment. See, e.g., Illinois v. Rodriguez, 497 U.S. 177 (1990). However, consent to a warrantless search of one’s home must be given freely and voluntarily. Humphrey v. State, supra; Guzman v. State, 283 Ark. 112, 672 S.W.2d 656 (1984). The State has a heavy burden to prove by clear and positive testimony that consent was freely and voluntarily given. Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980); Humphrey, supra. On appeal, this Court makes an independent determination based on the totality of the circumstances to determine if the State has met its burden. Id.
In this case, the officer was given entry into appellant’s home by appellant’s visiting seventy-seven-year-old mother-in-law, Lilly Wise. Appellant claims there was no valid consent for the officer to enter the house because Ms. Wise had no authority to consent to the officer’s entry; further, appellant contends that if any consent is found to have existed on Ms. Wise’s part, it was limited to the initial invitation to the living room, which is just inside the door, and not to appellant’s bedroom.
We have suggested that so long as a searching police officer reasonably believes that a person giving consent had authority to do so, the consent is valid, notwithstanding a later determination that the consentor had no such authority. Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (1979). That being the case, the question then turns to the scope of that consent.
Ms. Wise testified that she asked the officer to step inside the house because the family dog was making a disturbance, and for no other reason. She stated that she never asked or verbally consented to the officer coming any farther into the house, and specifically, not down the hall and into appellant’s bedroom. This testimony was undisputed. Further, the officer’s testimony made it clear that while his initial entry into the house was in response to Ms. Wise’s initial invitation to step inside, that entry was distinct and separate from his decision to follow her out of the living room, down the hall, and into appellant’s bedroom.
The officer never asserted that he perceived the initial invitation as anything more than entry inside the front door or that he relied on that invitation in any way as a basis for going into the interior of appellant’s home. Neither did he ever assert that Ms. Wise verbally indicated to him in any way that he should follow her. In fact, when specifically asked why he followed her down the hall, he replied:
Officer White: Well, I was looking for a subject and when she was going to go get somebody, I just kind of assumed that I was going, too, for my safety and everything, that I was going to see where this person was.
The officer’s assumptions about why he would follow Ms. Wise to appellant’s bedroom were unrelated to any matters of consent on the part of Ms. Wise. The officer further stated that he could not recall anyone consenting or asking him to follow Ms. Wise back to appellant’s bedroom.
It is well recognized that a limited invitation, such as the one Ms. Wise gave to step inside the house, is just that and does not authorize police to go beyond the scope of that consent. Arkansas Rules of Criminal Procedure, Rule 11.3 states that “a search based on consent shall not exceed, in duration or physical scope, the limits of the consent given.” Further, a search occurs whenever something not previously in plain view becomes exposed to an investigating officer. Arizona v. Hicks, 480 U.S. 321; U.S. v. Gonzalez, 71 F.3d 819 (11th Cir. 1996). Any initial consent granted by Ms. Wise to the police officer was limited in scope to the officer’s entry into the front door. Any attempt at further entry into appellant’s home in reliance on that initial consent was in excess of that consent and in violation of Rule 11.3.
As the further entry of the officer into appellant’s home and into his bedroom was not the result of the initial invitation on the part of Ms. Wise, nor of any express verbal statements, as discussed above, the State must, therefore, rely on some form of implied consent for that further entry. Consent, however, cannot be presumed from proof that a person merely acquiesced to police authority nor from an absence of proof that a person resisted police authority. Bumper v. North Carolina, 391 U.S. 543 (1968); Patzner v. Burkett, supra; Rodriguez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978).
In the Patzner case, supra, the Eighth Circuit declined to find consent when the officer in that case acted as did the officer in the case at bar. The officer had gone to Patzner’s home to investigate a possible DWI charge. The officer found Lester Naatus, a friend who was staying with Patzner, in the front yard. The officer asked Naatus if Patzner was home and Naatus told her he was and went to get Patzner. After a time, the officer went to the open front door and spoke to Naatus through the screen, asking him if she could speak with Patzner. Naatus replied that Patzner was in the kitchen. The officer then entered the house, walked into the kitchen and told Patzner he was under arrest. The Court, relying on Bumper, supra, held that no consent had been given. It held that Naatus’ agreement to go get Patzner was not sufficient to show consent and no such inference could reasonably be drawn from Naatus’ response. The Court articulated:
At most, his cooperation, such as it was, only extended to acting as a messenger for [the officer] in response to her express requests. Although Naatus apparently acquiesced to her demands, there is no showing that he cooperated further by asking her in or otherwise acted on his own initiative.
Patzner, 779 F.2d at 1369 (emphasis added).
The question of “implied consent” at issue in Patzner, was more closely examined recently in U.S. v. Gonzalez, supra. In Gonzalez, the officer approached an individual outside her home and asked if she would consent to a search of her home. Following a conversation with her daughter, she told the officer she wanted to go inside and get a drink of water. The officer then told her he “wanted to go in” with her, and when she did not bar him from going in, he followed her inside. The Eleventh Circuit held that there was no consent to enter:
We have previously noted our hesitancy to find implied consent (i.e. consent by silence) in the Fourth Amendment context, and we agree with our colleagues in the Ninth Circuit that whatever relevance the implied consent doctrine may have in other contexts, it is inappropriate to ‘sanction entry into the home based upon inferred consent.’ [Emphasis added.]
Gonzalez then quoted from U.S. v. Shaibu, 920 F.2d 1423 (9th Cir. 1990), to which it had referred above:
The government may not show consent to enter from the defendant’s failure to object to the entry. To do so would be to justify entry by consent and consent by entry. ‘This will not do.’ Johnson v. United States, 333 U.S. at 17. We must not shift the burden from the government— to show ‘unequivocal and specific’ consent — to the defendant, who would have to prove unequivocal and specific objection to a police entry, or be found to have given implied consent.
Gonzalez, 71 F.3d at 830 (emphasis added).
The State cites United States v. Mejia, 953 F.2d 461 (9th Cir. 1991), in support of its position that there was “implied consent.” However, the facts of Mejia are distinguishable from the instant case. For example, Mejia involved a nighttime search, not a daytime search. Moreover, the charge in Mejia was a felony, conspiracy to distribute cocaine, not a misdemeanor, DWI. Additionally, a decision from the Ninth Circuit is not binding upon this court, particularly when our own Rules of Criminal Procedure expressly provide that “a search based on consent shall not exceed, in duration or physical scope, the limits of the consent given.” Ark. R. Crim. P. 11.3.
Given the totality of the circumstances involved in the case at bar, we hold that, as in Patzner, Ms. Wise was acting as no more than a messenger for the officer. The officer was not asked to follow her, neither could he nor did he, according to his own testimony, assume she was impliedly asking him to follow.
The State contends that because appellant’s wife was in the living room when the officer entered and she also offered no objection to the officer following Ms. Wise to appellant’s bedroom, imphed consent was further given by appellant’s wife. The State would seem to require Ms. Wise or appellant’s wife to object to the officer following Ms. Wise or somehow resist his further entry into her home, in order to indicate that he was to go no further. This is precisely the result that Patzner, Gonzalez, and Shaibu have held to be prohibited by the Fourth Amendment. To do so would shift the burden from the government, to show consent, to the defendant, to prove objection to same. This would fly in the face of the Fourth Amendment and is offensive to this Court. We, therefore, reject that argument.
For all of the above-stated reasons, we hold that the State has failed to prove that the warrantless activity at issue in this case was reasonable based upon the totality of the circumstances, and hereby reverse and dismiss the case.
Reversed and dismissed.
999 S.W.2d 183
September 16, 1999
Doug Norwood, for appellant.
Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee. | [
113,
-22,
-4,
-66,
11,
97,
26,
-98,
-46,
-105,
114,
-45,
-25,
64,
69,
115,
-70,
61,
117,
121,
-43,
-74,
71,
104,
-48,
-45,
26,
-41,
-96,
-49,
-20,
-70,
47,
49,
-54,
-43,
70,
91,
-91,
88,
-118,
1,
24,
64,
64,
-46,
32,
9,
84,
15,
49,
-97,
-29,
46,
25,
-54,
-19,
108,
75,
53,
-8,
120,
-103,
31,
-33,
6,
-79,
36,
-103,
-123,
112,
16,
-100,
17,
1,
-7,
115,
-90,
-126,
116,
79,
-101,
45,
100,
98,
-95,
9,
-17,
-80,
-120,
54,
34,
-99,
-89,
-102,
73,
75,
40,
-106,
-71,
40,
48,
15,
-16,
107,
-60,
91,
108,
43,
-49,
-108,
-79,
-115,
112,
-108,
24,
-29,
37,
116,
113,
-57,
-30,
80,
69,
83,
27,
-122,
-109
] |
Per Curiam.
The appellant, Andrew Sasser, was convicted of capital felony murder and sentenced to die by lethal injection. We affirmed the conviction and sentence in Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995). Sasser subsequently filed a timely petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. In that petition, Sasser raised several claims of ineffective assistance of counsel. The Circuit Court, after a hearing, entered written findings of fact and conclusions of law in which it denied relief. Sasser now appeals from that order. We affirm.
The facts giving rise to Sasser’s conviction were set out in detail in our opinion in the direct appeal. Because the resolution of one of Sasser’s ineffective-assistance-of-counsel claims requires our determination of the sufficiency of the evidence to support one of the felonies underlying the capital felony murder charge, we will now reiterate the background facts.
The state charged Sasser with capital felony murder for causing the death of Ms. Jo Ann Kennedy, on or about July 12, 1993, in the course of or in immediate flight from his commission or attempt to commit the victim’s rape or kidnapping under circumstances manifesting extreme indifference to the value of human life. At the time of her death, the victim was working alone as the store clerk at the E-Z Mart in Garland. The autopsy report showed the victim died of multiple stab and cutting wounds and blunt-force head injuries, and that no anal or vaginal injury or any spermatozoa were present.
Following voir dire and immediately preceding the trial’s commencement, the State announced, in camera, that it intended to offer evidence of prior crimes committed by Sasser in 1988 at an E-Z Mart in Lewisville against its store clerk, Ms. Jackie Carter, for which he was convicted of second-degree battery, kidnapping and rape. The State relied upon Rule 404(b) and this court’s decision reported as Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987), and offered the evidence to prove appellant’s modus operandi and intent. The State enumerated several points of similarity between the circumstances of the present crime and the 1988 crimes. Appellant objected, arguing “one previous crime does not a pattern make” and that the evidence had no probative value, only prejudicial effect. The trial court held Thrash was controlling, found the proposed testimony to be “more (probative) than prejudicial,” and ruled it admissible. We affirmed this ruling. Sasser v. State, 321 Ark. at 447.
At the jury trial, Sasser stipulated that he caused the death of the victim while in the possession of and while driving his brother’s pickup truck. Other stipulated facts included: Sasser stopped at the E-Z Mart in Garland City two or three times to buy chips and to use the telephone between the hours of 3:00 p.m. on July 11, 1993 and approximately 12:00 a.m. on July 12, 1993; the victim was discovered nude from the waist down; and the pants and panties found in the E-Z Mart’s men’s bathroom were hers.
The State’s first witness at trial, Jeanice Pree, testified she and her mother, Gloria Jean Williams, lived across the street from the Garland City E-Z Mart. Pree testified she had an unobstructed view of the store. Pree testified she also worked at the E-Z Mart and believed its front door was locked at 12:00 midnight and thereafter customers were required to use a drive-through window. Pree testified she was sitting on her couch watching television when she looked out her window, saw the victim and a man behind the store counter and assumed he was a friend of the victim. Pree testified she looked back and saw the victim and the man coming to the store’s front door. Pree testified she could tell the victim was being forced to come out because it looked like her hands were behind her back. Pree testified she telephoned 911. The police dispatcher testified he received Pree’s 911 telephone call at approximately 12:46 a.m. on July 12, 1993, and that she stated “there was a woman that she believed was being killed at the E-Z Mart, being drug through the window.”
Williams testified she watched the E-Z Mart from the window in her house while her daughter (Pree) telephoned 911. Williams testified she saw a truck leave the store, and then the victim “came around from the side of the E-Z Mart. She reached for the door and she just collapsed, right there.”
Miller County Sheriffs Deputy Jim Nicholas testified the victim was found lying just outside the E-Z Mart door on the sidewalk, and appeared to be dead. Nicholas testified the victim was nude from the waist down, and what appeared to be her panties and pants were located in the men’s restroom of the store. Nicholas testified one of the victim’s shoes was in the front aisle and one behind the counter, and a large wad of hair was found behind the cash register near the drive-through window. Nicholas testified blood spatters were observed at the drive-through window, on the store’s “outside aisles,” counter, and on the men’s bathroom wall. Nicholas testified the drive-through window was open. Numerous items of physical evidence and photographs were introduced into evidence through the testimony of Nicholas and Miller County Sheriffs Department Investigator Toby Giles, including a photograph of the drive-through window and cash register area showing two plastic containers of nachos.
Arkansas State Police Investigator Robert Neal testified he and Miller County Sheriff H.L. Phillips interrogated Sasser at the Lafayette County Sheriffs Office in Lewisville for approximately two hours beginning around 7:45 p.m., on July 12, 1993. Sasser’s tape recorded statement and a transcript of the same were introduced at trial and provided as follows. Sasser stated he drove up to the window at the Garland City E-Z Mart and ordered nachos from the victim. He described the victim as a “lady . . . [who] had an attitude” and was angry because someone else had ordered nachos, then failed to pick up the order. Sasser stated the victim tried to sell him two orders of nachos, but he declined. He stated they argued and the victim slammed the drive-through window on his hand. Sasser stated he jerked the window open whereupon the victim cut him with an knife-like object with a blade. Sasser stated he grabbed the victim and she jerked him through the drive-through window. He stated they scuffled, moving from the drive-through window area, down the counter area, out into the store’s interior, back to the store office at the rear of the store, and up to the potato chip rack at the front of the store. Sasser stated the victim opened the store’s front door, they exited the store and the victim followed him to his pickup truck, still fighting. Sasser stated he entered the vehicle and left.
Sasser stated he did not recall going into the E-Z Mart’s restrooms but that he “had to go back there.” He stated the victim repeatedly hit him with her fists while they scuffled. Sasser stated he wrested the victim’s knife-like object from her and used it to hit her, finally dropping the object near the pickup truck. Sasser stated he did not know why the victim’s clothes were removed. When asked whether he did not remove the victim’s clothes or did not remember doing so, he replied: “No sir.” Sasser stated he did not try to rape the victim or to rob her.
The State’s final witness, Ms. Carter, testified appellant attacked and raped her on April 22, 1988 at the E-Z Mart Store in Lewisville. Carter testified she was the only employee on duty when appellant entered the store at approximately 1:00 a.m. and purchased cigarettes, returned fifteen minutes later and purchased a soft drink, then returned five minutes later, asked to use the telephone and stated he had had a wreck on his motorcycle. Carter testified appellant then stood in the store after stating he was waiting on his wife to pick him up. Carter testified that, at approximately 1:35 a.m., a truck drove up and appellant went outside to talk to its occupants. Carter testified she moved from behind the cash register and began putting up items in the freezer when appellant approached her from behind and hit her on the back of the head with a soft-drink bottle. Carter testified she and appellant struggled and he continued to hit her, then forced her to a utility/bathroom located at the back of the store. Carter testified another man approached and appellant decided to take her out of the store. Carter testified appellant forced her out of the store, picked up his bicycle, and pushed Carter and the bicycle into an alley. Carter testified that, when the other man drove by, appellant forced her across the street, told her to pull down her clothes, pulled down his own clothes, and raped her. Carter testified appellant then told her he should not have done it and should kill her, whereupon she begged him not to and agreed to say a truck had dropped her off and appellant had found her. Carter testified appellant forced her back to the store where the police were waiting. Carter testified that, when she gained the opportunity to speak privately to a policeman, she identified appellant as her attacker.
Failure to Object to Erroneous Jury Instructions
For his first argument in this postconviction appeal, Sasser argues that the trial court erred when it submitted erroneous instructions for attempted kidnapping and attempted rape to the jury. Sasser contends that we can review this trial error for the first time under Rule 37 because the submission of an instruction that omits an essential element of the crime constitutes “structural error.” Alternatively, Sasser also argues that his trial counsel was ineffective for failing to object to the erroneous instructions.
The abstract of the trial indicates that the jury was instructed to weigh Sasser’s guilt according to instructions for capital felony murder and first degree felony murder. As indicated above, the jury was instructed that, in order to convict Sasser of either degree of felony murder, they had to find that he committed one of four possible underlying felonies: kidnapping, attempted kidnapping, rape, or attempted rape. The trial court, with no objection from Sasser’s attorney, submitted erroneous jury instructions for the crimes of attempted kidnapping and attempted rape. Specifically, the jury was instructed that the attempt crime was completed when Sasser formed the mental state to commit the rape or kidnapping. The actus reus, or the portion of the instruction that required the jury to find that Sasser also took a “substantial step” toward completing the crime, was omitted from all of the instructions for the attempt felonies.
For the first part of his argument, Sasser contends that the erroneous instructions, because they omit an essential element of the attempt crimes, constitute “structural” trial error, and as such, can be reviewed for the first time under Rule 37. Sasser argues that the trial error is structural because the submission of the erroneous instructions affected his fundamental right to a trial by jury, or, as the Supreme Court enunciated in In re Winship, 397 U.S. 358 (1970), “the right of an accused to not be convicted except upon proof beyond a reasonable doubt of each element of the crime.”
We have previously held that even constitutional issues must be raised in the trial court and on direct appeal, rather than in Rule 37 proceedings. Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988). Rule 37 is a postconviction remedy, and as such, does not provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980). We have made an exception, however, for errors that are so fundamental as to render the judgment of conviction void and subject to collateral attack. Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996). In Collins, for example, we held that the right to trial by a twelve-member jury is a fundamental right that fell with in the exception. When we review a “fundamental” or “structural” error either on direct appeal or through the exception just explained, the fundamental nature of the error precludes application of the “harmless-error” analysis.
To support his contention that the omission of the actus reus element from the attempt instructions was structural error, Sasser draws an analogy between his case and Sullivan v. Louisiana, 508 U.S. 275, (1993), in which the Supreme Court held that an erroneous “reasonable doubt” instruction was structural error, and therefore not subject to the “harmless-error” analysis. In Sullivan, the Court noted that in a case where the jury convicts according to an erroneous instruction about the State’s burden of proof, there has been no actual finding of guilt as required by the Sixth Amendment. The harmless-error standard of review could not be applied because to do so would force the appellate court, inappropriately, to speculate about what a jury would have done had it been properly instructed. Sullivan v. Louisiana, 508 U.S. at 280.
The omission of a single element of a jury instruction in a case where the jury is instructed on multiple offenses, however, differs from the situation in Sullivan v. Louisiana, in which the error affected the basic burden of proof in a criminal case, and therefore, was more insidious than the error in this case. In Sullivan, the harmless-error analysis could not be applied because the erroneous burden-of-proof instruction, an instruction upon which the proper application of all other instructions depends, rendered a reliable finding of guilt impossible. In this case, the jury was properly instructed according to the complete offense for kidnapping, and, therefore, it is still possible that there was a refiable finding of guilt on capital felony murder in this case.
The distinction between the error that occurred in this case and the error in Sullivan v. Louisiana has recently been recognized by the Supreme Court in Neder v. United States, 527 U.S. (Slip Opinion, June 10, 1999), a case whose holding is directly on point for the case at bar. See also California v. Roy, 519 U.S. 2 (1996). In Neder, the Supreme Court held that the omission of an element from a jury instruction in a criminal trial is not “structural error” and therefore, can be subject to the harmless-error standard of review. We have also previously observed that this is an error that is subject to the harmless-error standard of review. Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996). Accordingly, the omission of the actus reus element from the instructions for attempted rape and attempted kidnapping is not “structural error” and, therefore, an argument assigning error to the omission cannot be considered for the first time in a Rule 37 proceeding.
Sasser makes the alternative argument, however, that his trial counsel was ineffective for failing to object to the erroneous instructions. We measure the effectiveness of trial counsel according to the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). According to that standard, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered.
We conclude that the Circuit Court was not clearly erroneous when it denied relief on the ineffective-assistance-of-counsel claim. Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998). While we have little doubt that Sasser’s trial counsel rendered deficient performance when he failed to object to the omission of the actus reus element in the attempt felonies, we find that Sasser has failed to fulfill the prejudice prong of the Strickland analysis, or more specifically, that there is a “reasonable probability” that the outcome of his trial would have been different if his attorney had objected to the erroneous instructions. We reach this finding because the jury was properly instructed on the complete offense of kidnapping, which, as we will soon explain, is supported by ample evidence in the record. Additionally, we find that if Sasser’s attorney had objected and the actus reus was included in the attempt instructions, there was sufficient evidence to support attempted rape and attempted kidnapping as the underlying felonies.
Sasser argues, however, that we cannot determine if he has satisfied the prejudice prong of the Strickland analysis by evaluating the sufficiency of the evidence to support either the complete offense of kidnapping or the attempt felonies, if they had been properly submitted to the jury, because of the analysis we applied in Hall v. State, supra. Sasser contends that we can only determine prejudice according to the harmless-error analysis that we explained in Hall. That is, that the State can demonstrate that the submission of an erroneous instruction was harmless by showing that the jury was not demonstrably misled because the jury rejected the theory of the erroneous instruction. We further explained that the State can also show that the erroneous instruction was harmless because it was cured by another instruction. Hall v. State, 326 Ark. at 323. Sasser suggests that if we go beyond that harmless-error analysis, we would impermissibly substitute our judgment in place of the jury on the sufficiency of the evidence.
As an initial matter, we must take this opportunity to draw a clear distinction between the analysis that takes place on direct appeal when an erroneous instruction is submitted to the jury, and the analysis that we apply to evaluate an ineffective-assistance-of-counsel claim. As explained above, the “harmless-error” standard of review is applied on direct appeal.
The prejudice prong of an ineffective-assistance-of-counsel claim, however, involves a different inquiry. There, we must determine whether but-for counsel’s error, there is a “reasonable probability” that the outcome of the trial would be different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. While we may resolve this issue by using the harmless-error standards enunciated above, our analysis is not limited to those criteria. We may also evaluate other factors to determine if there is a “reasonable probability” that the outcome of the trial would be different.
Accordingly, we must determine if Sasser would have been acquitted if, pursuant to the objection, the actus reus element would have been included in the attempt instructions, or however unlikely, the attempt instructions were pulled as alternatives to give to the jury. We conclude that there is no reasonable probability that Sasser would have been acquitted of capital felony murder.
In this case, the jury was given the following instruction with regard to kidnapping:
To prove kidnapping, the State must prove beyond a reasonable doubt first, that Andrew Sasser did, without the consent of Joanne Kennedy, restrain her so as to interfere substantially with her liberty, and second, that Andrew Sasser restrained Joanne Kennedy with the purpose of facilitating the commission of murder or the flight thereafter, or inflicting physical injury upon her or engaging in sexual intercourse.
The jury was also instructed as follows regarding the offense of rape:
To prove rape the State must prove beyond a reasonable doubt first, that Andrew Sasser engaged in sexual intercourse with Joanne Kennedy and second, that he did so by forcible compulsion.
Furthermore, AMCI 2d 501, the model jury instruction for criminal attempt that Sasser alleges should have been given to the jury, provides that to prove an attempt, the State must prove beyond a reasonable doubt:
First: That the defendant intended to commit the offense of (rape or kidnapping);
Second: That the defendant purposely engaged in conduct that was a substantial step in a course of conduct intended to culminate in the commission of (rape or kidnapping);
Third: That defendant’s conduct was strongly corroborative of the criminal purpose.
As we indicated earlier, we conclude that there is ample evidence in the record to support a finding of either kidnapping, attempted kidnapping, or attempted rape as the underlying felony for the capital murder charge. Through the testimony of eyewitnesses and the investigating officers, the State introduced evidence that indicated that Sasser forced his way into the convenience store through the drive through window, engaged in an extensive struggle with Ms. Kennedy that led to the back of the store and into the men’s bathroom, where her slacks and panties were found. Sasser then lead Ms. Kennedy, with her arms restrained behind her and nude from the waist down, through the front door of the store, and took her to the area where his vehicle was parked. Sasser drove away and Ms. Kennedy walked to the front of the store, fell to the ground, and died as the result of several stab wounds. With this evidence in the record, there is no reasonable probability that a proper objection from Sasser’s attorney would have changed the outcome of the trial.
Failure to Object to Prosecutor’s Comments
Sasser next argues that he is entitled to postconviction relief because his trial counsel failed to object to several comments made by the prosecutor during his arguments to the jury during both the guilt and penalty phases of the trial. He also suggests that postconviction relief would be warranted because the trial court failed, on its own motion, to admonish the jury or declare a mistrial.
Sasser alleges that the prosecutor made several improper comments in his closing argument during the guilt phase. Sasser first argues that the prosecutor improperly indicated that if he thought that Sasser committed first-degree murder rather than capital mur der, he “would have considered doing something less.” According to Sasser, that remark expressed the prosecutor’s personal opinion about the crime for which Sasser should be convicted.
Sasser next argues that the prosecutor improperly argued, apparently in response to the defense’s argument that Jackie Carter’s testimony was not relevant, that Ms. Carter “wouldn’t have been over here testifying yesterday if that evidence hadn’t been ruled by the Court as relevant and probative of this guy’s intent.” Sasser contends that this remark was inappropriate because it bolstered the credibility of a State’s witness and “directly added the court’s imprimatur to that testimony.”
Sasser also contends that the prosecutor inappropriately argued that Sasser failed to express remorse for causing Joanne Kennedy’s death. Specifically, Sasser argues that both his right against self-incrimination and his right to a jury trial were violated when the prosecutor asked the jury the following rhetorical question: “Did you hear any sign of remorse from him? None.”
Sasser argues that the prosecutor continued to make improper remarks in his closing argument during the penalty phase of the trial. Sasser alleges that the prosecutor again inappropriately emphasized Sasser’s apparent lack of remorse for Ms. Kennedy’s death. He also contends that the prosecutor erroneously declared to the jury that there is no role for mercy in the criminal justice system.
In the portion of its order that deals with this claim, the Circuit Court first observes the following:
Several of these remarks look worse on paper than they did in the courtroom. The prosecutor’s statements that he would have charged the petitioner with something else if he had been guilty of anything else and his statement that mercy has no place in the criminal justice system were more a way of speaking than a flat statement and were understood as the prosecutor’s opinion about the evidence that was presented, which is permissible. It was the prosecutor’s opinion that the petitioner was guilty only of capital murder and that there was no room for mercy in this case. Contrary to the petitioner’s argument, counsel are permitted to express their opinions within reason: “Although it is not good practice for counsel to inject their personal beliefs into the closing arguments, mere expressions of opinion by counsel in closing argument are not reversible error so long as they do not purposely arouse passion and prejudice.” Neff v. State, 287 Ark. 88, 696 S.W.2d 736, 740 (1985).
As to the argument attacking the statement that the testimony of the previous victim was relevant and probative of the petitioner’s intent because the court had ruled that it was, the statement was correct, . . . and the evidence would not have been admitted had the court not so ruled. Further, the juror (sic) were instructed that they should accept without question the court’s rulings on the admissibility of the evidence. If there was a valid objection to this remark, it was not that the remark was erroneous.
Likewise, the Circuit Court found that the prosecutor’s remarks during the penalty phase were also merely expressions of the prosecutor’s opinion. The Circuit Court did find, however, the prosecutor’s remarks about remorse to be “technically objectionable,” but suggested that they had little effect on the jury because the evidence was overwhelming, and only the degree of homicide was at issue.
To the extent that Sasser argues that the trial court erred when it did not, on its own motion, seek to remedy the alleged prejudice caused by the prosecutor’s remarks, we conclude that he cannot raise that argument for the first time in a Rule 37 proceeding. This is an allegation of trial error that should have been raised on direct appeal. As we explained above, such an error can only be raised for the first time under Rule 37 if it is so fundamental as to render the judgment void and subject to collateral attack. In Pitcock v. State, 279 Ark. 174, 649 S.W.2d 393 (1983) we held that a trial error involving a remark made by a prosecutor during closing argument was not “fundamental.” Accordingly, we may only consider Sasser’s claim that his counsel was ineffective for failing to object to prosecutor’s comments.
Regarding the ineffective-assistance-of-counsel claim, the Circuit Court noted that during the postconviction hearing, Sasser’s defense counsel testified that he typically does not object during closing arguments unless the comments are “ ‘absolutely outrageous’ because to object to anything less only highlighted the comment and made the jury, which might not have understood the significance of the remark, pay attention to it.” The Circuit Court then concluded that Sasser’s attorney did not object to the prosecutor’s comments as a matter of trial strategy, and therefore, did not render deficient performance.
We conclude that the Circuit Court’s denial of relief on the ineffective-assistance-of-counsel claim is not clearly erroneous. Catlett v. State, supra. Experienced advocates might differ about when, or if, objections are called for since, as a matter of trial strategy, further objections from counsel may have succeeded in making the prosecutor’s comments seem more significant to the jury. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the wide range of permissible professional legal conduct. Cohen v. United States, 996 F.Supp. 110 (D. Mass. 1998).
Failure to Lodge Due Process Objection
Sasser next argues that his trial counsel was ineffective for failing to lodge a due process-based objection to the admission of Jackie Carter’s testimony. During the trial, Ms. Carter’s testimony, while evidence of a prior crime, was ruled admissible because it had independent relevance toward proving Sasser’s modus operandi and intent in the crime against Joanne Kennedy, and because its probative value was not outweighed by the danger of unfair prejudice. Sasser now argues that his counsel, in addition to arguing that Ms. Carter’s testimony was inadmissible pursuant to Rules 403 and 404(b) of the Arkansas Rules of Evidence, should have also argued that the admission of the testimony would violate the Due Process Clause. Sasser contends that his rights to due process and a fair trial were violated because the probative value of the testimony was substantially outweighed by the danger of unfair prejudice, and that an appropriate objection during trial would have either led to the exclusion of the evidence or a different outcome in the direct appeal.
We find no merit to this claim because it is unlikely that a due process-based objection would have achieved any more than counsel’s objections based on the Rules of Evidence. In fact, such an objection would have been redundant because fairness to the party who opposes the admission of the evidence is built in to Rule 403 and Rule 404(b). According to Rule 404(b), evidence of prior crimes, wrongs, or acts is generally not admissible unless it has independent relevance. Despite having independent relevance, however, the evidence must still pass the balancing test in Rule 403, which provides that relevant evidence may be excluded if the probative value is outweighed by, among other things, the danger of unfair prejudice. The Advisory Committee Note to Rule 403 explains that “unfair prejudice” within the context of the rule, means “an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.” Accordingly, it is unlikely that a due process-based objection would have been any more successful during trial, or in the direct appeal, and counsel did not perform deficiently by hmiting the grounds for his objection to the Rules of Evidence.
Failure to Seek Limiting Instruction
Sasser next argues that his trial counsel was ineffective for failing to request a limiting instruction when Jackie Carter’s testimony was admitted. In the direct appeal, we concluded that we could not reach Sasser’s argument that the trial court erred by not giving the jury a limiting instruction because Sasser did not request such an instruction. Sasser now argues that he was “absolutely entitled” to the limiting instruction, and that but for his attorney’s failure to request it, the outcome of the trial, or the appeal, would have been different.
In an affidavit that he filed in the postconviction proceeding, Sasser’s trial counsel stated that at the time that Jackie Carter’s testimony was admitted, his strategy was to avoid drawing more attention to its content. He suggested this strategy manifested itself in both his decision to decline cross-examining Ms. Carter and in his decision to refrain from seeking a limiting instruction. Sasser responds, however, by arguing that his attorney’s claim that he made a tactical choice is belied by his decision to argue the absence of the instruction as trial error in the direct appeal.
In its order, the Circuit Court resolved the apparent conflict by finding that counsel engaged in legitimate trial strategy when he chose not to seek the hmiting instruction. Specifically, the court seemed to find the decision to not cross-examine Ms. Carter as corroboration that counsel’s omission was a matter of trial strategy rather than error. The order states as follows:
In this case, petitioner’s counsel was faced with overwhelming evidence against petitioner, not the least of which was evidence that petitioner had attacked another convenience store clerk under very similar circumstances a few years earlier. Because petitioner’s counsel was unsuccessful in keeping this evidence out, petitioner’s counsel was forced to consider how to deal with it in front of the jury. In an effort not to highlight Jackie Carter’s testimony, petitioner’s counsel chose not to request the instruction that petitioner now alleges would have been requested. Counsel’s strategy with respect to that instruction was the same as it was with respect to her trial testimony, which is evidenced by counsel’s decision not to cross-examine her.
Accordingly, the Circuit Court concluded that counsel’s choice not to seek the limiting instruction was a matter of trial strategy that could not be a basis for a finding of ineffective assistance of counsel.
We have no cases that decide the issue of whether the failure to seek a limiting instruction upon the admission of evidence of prior crimes could be a matter of trial strategy, and therefore, not cognizable as an ineffective-assistance-of-counsel claim. While the Circuit Court’s conclusion is not without support from other jurisdictions , the better approach is to resolve the issue according to the prejudice prong of the Strickland analysis. In United States v. Liefer, 778 F.2d 1236 (7th Cir. 1985) for example, the defendant argued that his trial counsel was ineffective for not seeking a limiting instruction when evidence of the defendant’s prior bad acts was admitted. The Seventh Circuit Court of Appeals, in denying relief on the ineffective-assistance-of-counsel claim, applied the second prong of the Strickland analysis in the following manner: “(w)e need not decide whether . . . counsel ‘fell below an objective standard of reasonableness,’ (citation omitted) because, in light of the substantial evidence against (the defendant), there is no probability that the outcome of his trial was prejudiced by the alleged deficiency.” See also United States v. Ramos, 971 F.Supp. 186 (E.D. Pa. 1997); Easley v. State, 978 S.W.2d 244 (Tex. App. 1998). Accordingly, we must determine whether but for counsel’s failure to request the instruction, the outcome of the trial would have been different.
As we explained above, there was ample evidence, even excluding Jackie Carter’s testimony, to support a conviction for capital felony murder with either kidnapping, attempted kidnapping, or attempted rape as the underlying felony. Under these circumstances, there is no reasonable probability that the outcome of the trial would have been different if Sasser’s attorney had obtained a limiting instruction.
As for the allegation that the failure to request the instruction prejudiced Sasser on appeal, we have to evaluate the likelihood of success attached to an allegation that the trial court erred in refusing to give the instruction when it was requested. We conclude that such an allegation would not have led to a reversal because even if the trial court refused to give the instruction once it was requested, the error would have been harmless in light of the overwhelming evidence, excluding Jackie Carter’s testimony, that was introduced against Sasser. See United States v. Randazzo, 80 F.3d 623 (1st Cir. 1996); United States v. King, 897 F.2d 911 (7th Cir. 1990).
Failure to Seek Appointment of Co-Counsel
In his final argument in this appeal, Sasser contends that he did not receive effective assistance of counsel during his trial because he was not represented by two attorneys as required by the minimum standards promulgated by the Arkansas Public Defender Commission and the Guidelines for Appointment and Perform anee of Counsel in Death Penalty Cases issued by the American Bar Association. Sasser argues that despite the existence of these standards and guidelines, his attorney did not seek the appointment of another attorney to assist him, nor did the trial court appoint an attorney on its own motion. Sasser then makes the bare allegation that because additional counsel was not appointed, he received ineffective assistance of counsel.
We affirm the Circuit Court’s denial of relief on this claim. Sasser has not made any specific allegation as to how the absence of a second attorney affected his trial counsel’s performance, or how he was prejudiced by the fact that he was represented by one attorney. Conclusory allegations cannot be a basis for postconviction relief. Brooks v. State, 303 Ark. 188, 792 S.W.2d 617 (1990).
Affirmed.
In Abbott v. State, 726 S.W.2d 644 (Tex. App. 1987), the court held that “(although hindsight may suggest a limiting instruction of some nature, it is reasonable that, as a trial tactic, counsel did not wish to remind the jury of those matters.” | [
112,
-18,
-35,
-84,
43,
-30,
58,
58,
83,
-117,
-92,
115,
45,
-34,
9,
107,
-13,
63,
85,
105,
-41,
-73,
115,
105,
114,
-5,
48,
-41,
-78,
-54,
-10,
-76,
79,
96,
98,
-59,
-30,
-54,
-31,
-38,
-118,
-128,
-117,
-12,
88,
20,
48,
46,
126,
7,
33,
-100,
-29,
43,
22,
-55,
45,
44,
89,
-83,
80,
-71,
-118,
-123,
-33,
22,
-79,
36,
-100,
-94,
-40,
30,
-100,
57,
0,
-24,
115,
-106,
-126,
84,
107,
25,
-124,
98,
-30,
-110,
29,
-51,
40,
-120,
-114,
-33,
-99,
-89,
-104,
9,
75,
13,
-105,
-99,
123,
22,
12,
-10,
-12,
-19,
127,
108,
-113,
-34,
-106,
-79,
-49,
48,
22,
-21,
-53,
5,
32,
117,
-50,
-30,
92,
87,
114,
-45,
-118,
-42
] |
Per Curiam.
The pro se appellant, Derek Charles Coleman, was convicted by a jury of first-degree murder and was sentenced to life in prison. We affirmed his conviction and sentence in Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993). Coleman subsequently filed a pro se petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. The Circuit Court denied relief without a hearing. In his appeal from that order, Coleman assigned error to the Circuit Court’s failure to make written findings in the order denying relief. We agreed that the order did not comply with the requirements of Rule 37.3, and we reversed and remanded the case for written findings and if necessary, a postconviction hearing. Coleman v. State, CR 96-883 (June 30, 1997).
The Circuit Court subsequently appointed counsel for Coleman and held a hearing on the claims in Coleman’s petition, which included allegations that his trial counsel was ineffective for waiving a pretrial hearing without Coleman’s consent; failing to move to suppress Coleman’s custodial confession; failing to call several character witnesses; failing to properly investigate the case; failing to ensure a proper competency evaluation; and for failing to ensure proper jury instructions. After the hearing, the Circuit Court entered the following order:
The Court upon a review of the complete record including a postconviction hearing on this date finds that the defendant-petitioner’s claim for Rule 37 relief should be denied.
FINDING OF FACTS
1. The defendants-petitioner was adequately and effectively represented by the Crittenden County Public Defender’s Office.
2. That the defendant-petitioner discussed the presentation of his case and participated in the development of his case.
3. The defendant-petitioner has not demonstrated any factual basis to warrant a new trial or postconviction relief.
Motion denied.
Coleman now appeals from this order. Once again, he contends that the order does not comply with the requirements of Rule 37.3. We agree that the Circuit Court’s order does not comply with the rule’s mandatory requirement of written findings of fact and conclusions of law following a postconviction hearing.
In pertinent part, Rule 37.3(c) provides that after a hearing, “[t]he court shall determine the issues and make written findings of fact and conclusions of law with respect thereto.” In Williams v. State, 272 Ark. 98, 612 S.W.2d 115 (1981), we noted that “[w]e have held without exception that this rule is mandatory and requires written findings.” In Baumgarner v. State, 288 Ark. 315, 705 S.W.2d 10 (1986), we made it clear that the requirement of written findings of fact applies to any issue upon which a Rule 37 hearing is held.
While the Circuit Court’s order contains the “finding of facts” as set out above, they are conclusory. Specifically, they do not reflect how the trial court applied the standard for ineffective assistance of counsel claims, as set forth in Strickland v. Washington, 466 U.S. 668 (1984), to the allegations that were raised in Coleman’s petition and that were addressed during the postconviction hearing. Accordingly, we must once again reverse and remand the case for findings that comply with the rule.
The absence of written findings, however, does not preclude our review of another claim that Coleman raises in this appeal. Coleman argues that we should reverse the Circuit Court’s denial of postconviction relief because he did not receive effective assistance of counsel during the postconviction hearing. Coleman argues that the right to effective assistance of counsel attached when the Circuit Court appointed an attorney to represent him during the postconviction hearing. We disagree.
It is well settled that there is no right to counsel in a postconviction proceeding. Pennsylvania v. Finley, 481 U.S. 551 (1987). As a result, when the Circuit Court appointed an attorney to represent Coleman at the hearing on the Rule 37 petition, it was merely exercising its discretion pursuant to Rule 37.3. Coleman cannot now complain about his postconviction attorney’s performance.
Reversed and remanded. | [
48,
-22,
-59,
-100,
75,
97,
26,
60,
-61,
-29,
96,
83,
47,
-36,
8,
123,
83,
59,
85,
121,
-41,
-73,
55,
67,
-61,
-77,
65,
85,
-73,
-19,
-76,
-80,
76,
96,
-54,
-47,
2,
-24,
-127,
80,
-18,
1,
-103,
113,
80,
-117,
48,
46,
82,
15,
49,
-100,
-93,
-22,
22,
-54,
-51,
44,
91,
-65,
64,
49,
-103,
31,
-81,
20,
-95,
-124,
88,
6,
88,
58,
-100,
48,
0,
-24,
115,
54,
-126,
84,
107,
91,
40,
98,
99,
33,
24,
-19,
-71,
-120,
55,
63,
-99,
39,
-40,
9,
67,
109,
-74,
-99,
51,
52,
46,
126,
-20,
13,
121,
-20,
15,
-50,
-108,
-77,
-122,
44,
-116,
-30,
-21,
1,
48,
52,
-50,
-14,
90,
71,
57,
-37,
-70,
-106
] |
Donald L. Corbin, Justice.
Appellant Jimmy Don Wooten was convicted in the Pope County Circuit Court of capital murder, criminal attempt to commit murder, and aggravated assault. He was sentenced to death by lethal injection, thirty years’ and six years’ imprisonment, respectively. This court affirmed the judgment of conviction in Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996), cert. denied, 117 S. Ct. 979 (1997). Subsequent to this court’s decision, Wooten filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The trial court denied the petition, and Wooten appeals. For reversal, Wooten argues that the trial court erred in denying the petition without first holding a hearing on the matter. Our jurisdiction of this appeal is pursuant to Rule 37 and Ark. Sup. Ct. R. 1-2(a) (8). We reverse.
The pertinent facts were set out in the first appeal of this matter:
On August 5, 1994, David LaSalle, Henry Teb Porter, and Molly Porter were hiking on a forest trail near the Long Pool recreation area in Pope County when they encountered appellant Jimmy Don Wooten. Wooten was riding a six-wheel all-terrain vehicle. At trial, Henry Porter testified that the group had three encounters with Wooten before he attacked them and shot David LaSalle. LaSalle died as a result of a single gunshot wound to the head. Porter also testified that Wooten shot him in the shoulder, forearm, and face, and that he was able to remove the key from Wooten’s all-terrain vehicle before Wooten chased him into the woods. Molly Porter, Henry Porter’s daughter, testified that Wooten shot LaSalle and shot her father and chased after him.
On the day of the shooting, Wooten reported that an assailant who looked just like him had stolen his six-wheel vehicle while he was fishing near Long Pool and had shot at him using the .22-caliber pistol he had in the vehicle. Wooten claimed that he later found the vehicle with the gun abandoned by the side of the road near his truck. A .22-caliber bullet was recovered from David LaSalle’s body. It was determined that Wooten’s gun fired a spent .22-caliber cartridge found at the location where LaSalle and Porter were shot. In addition, swimming trunks found at Wooten’s home matched Henry and Molly Porter’s description of trunks worn by the assailant.
Wooten, 325 Ark. at 513, 931 S.W.2d at 409.
Following his conviction, Wooten filed a petition under Rule 37, alleging numerous instances in which his trial counsel had been ineffective. In its response, the State asserted that Wooten’s petition should be denied because (1) it did not contain specific allegations of how counsel’s alleged errors resulted in prejudice to Wooten, and (2) some of the grounds do not contain sufficient facts to determine whether a hearing was warranted. The trial court denied the petition. The trial court’s order reflects:
1. That said petition should be, and hereby is denied.
2. That petitioner’s grounds for relief, specifically grounds 4A through K, G1 and G2, do not present any allegations of prejudice. That ail of the above mentioned grounds do not present any factual allegations sufficient to determine whether a hearing is necessary.
3. That the Court adopts as its [sic] finds the response and arguments of the State of Arkansas to the Petition for Relief Under Arkansas Rules of Criminal Procedure, Rule 37.
On appeal, Wooten contends that the petition provided specific facts and sufficient details to support the allegations of error. He thus contends that the trial court erred in denying the petition without a hearing. While we do not agree that a hearing is necessarily warranted, we conclude that the trial court erred in faffing to make written findings in support of its denial of the petition.
Rule 37.3 provides in pertinent part:
(a) If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings.
(c) When a petition is filed in the circuit court and the court does not dispose of the petition under subsection (a) hereof, the court shall cause notice of the filing thereof to be served on the prosecuting attorney and the petitioner’s counsel of record at the trial court level; and on the petition the court shall grant prompt hearing with proceedings reported. [Emphasis added.]
This court has previously interpreted the foregoing rules to “provide that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief.” Bohanan v. State, 327 Ark. 507, 510, 939 S.W.2d 832, 833 (1997) (per curiam) (citing Schneider v. State, 290 Ark. 454, 720 S.W.2d 709 (1986)). The trial court need not hold an evidentiary hearing where it can be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit. Id.; Smith v. State, 290 Ark. 90, 717 S.W.2d 193 (1986). Where the trial court concludes, with out a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires the trial court to make written findings specifying the parts of the record that form the basis of the trial court’s decision. Bohanan, 327 Ark. 507, 939 S.W.2d 832; Smith v. State, 300 Ark. 291, 778 S.W.2d 924 (1989). If the trial court fails to make such findings, it is reversible error, unless the record before this court conclusively shows that the petition is without merit. Bohanan, 327 Ark. 507, 939 S.W.2d 832. In short, while this court has affirmed the denial of Rule 37 petitions notwithstanding the trial court’s failure to make written findings as required by Rule 37.3(a), we have done so only where it can be determined from the record that the petition is wholly without merit or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. Bilyeu v. State, 337 Ark. 304, 987 S.W.2d 277 (1999) (per curiam) (citing Long v. State, 294 Ark. 362, 742 S.W.2d 942 (1988); Smith, 290 Ark. 90, 717 S.W.2d 193; Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979)).
Rule 37.5, which became effective on August 1, 1997, provides the method for pursuing postconviction relief in death-penalty cases. Like Rule 37.3, Rule 37.5 provides that the trial court may decide the merits of a postconviction petition with or without holding a hearing. Rule 37.5(i) provides, in part, that if no hearing is held, the trial court shall “make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition.” Rule 37.5 evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16-91-201 to -206 (Supp. 1999), where the General Assembly expressly noted that the intent of the Act is to comply with federal law by instituting a comprehensive state-court review. See section 16-91-204; Porter v. State, 332 Ark. 186, 964 S.W.2d 184 (1998) (per curiam). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. Id. Thus, “in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure that the denial rests on solid footing.” Id. at 188-89, 964 S.W.2d at 185. Though Wooten received the death penalty, Rule 37.5 does not govern his postconviction review, as it came into effect after he became eligible to file a petition under Rule 37.2(c). See Rule 37.5(k). Nonetheless, we believe that the intent and purpose of that rule reinforces the responsibility of the trial court to make specific written findings and conclusions of law on each issue raised in the petition.
As can be seen from the order denying Wooten’s petition, the trial judge did not comply with Rule 37.3(a), as he did not make any written findings in his order and did not specify what parts of the files or record were relied upon in denying Wooten’s petition. Without these findings, we are unable to affirm because the record before us, which primarily consists of Wooten’s petition, the State’s response, and the trial court’s order, does not conclusively show that the petition is without merit. Nor are we able to say that it is conclusive from the face of the petition that no relief is warranted. Moreover, we cannot tell from the record on appeal whether the trial court had an opportunity to review the trial record. It may be that the record of Wooten’s trial, which is not before us, supports the trial court’s denial of the petition. If this is the case, the trial court must state its reliance on the trial record in its order. Accordingly, we reverse and remand the case to the trial court for the written findings required by Rule 37.3(a), and if additional evidence, beyond what is contained in the trial record, is needed to make these findings, an evidentiary hearing should be held pursuant to Rule 37.3(c). | [
80,
104,
-43,
28,
10,
-32,
10,
-72,
98,
-29,
96,
82,
-85,
-37,
13,
57,
-21,
93,
117,
109,
-43,
-73,
55,
68,
-103,
51,
121,
-57,
-78,
73,
-12,
-43,
8,
120,
-114,
85,
-60,
32,
-25,
88,
-124,
-128,
-101,
-24,
16,
82,
48,
47,
4,
11,
37,
14,
-29,
42,
30,
-55,
105,
44,
75,
-83,
81,
57,
-48,
-105,
-20,
20,
-93,
22,
-102,
2,
112,
24,
-40,
49,
16,
-4,
115,
-90,
-110,
-12,
109,
-119,
44,
98,
103,
5,
88,
-51,
-88,
-88,
15,
-81,
-89,
-90,
-104,
1,
99,
76,
-98,
-99,
114,
-108,
12,
120,
108,
78,
67,
72,
1,
-34,
-108,
-95,
14,
56,
-60,
-48,
-7,
37,
116,
117,
-49,
-30,
93,
71,
125,
-33,
-122,
-75
] |
Per Curiam:.
On May 13, 1998, the Arkansas Department of Human Services (DHS) revoked Sandra Hudson’s child-care license, and Hudson appealed that decision to the circuit court, which stayed the DHS decision pursuant to Ark. Code Arm. § 25-15-212(c) (Repl. 1996) of the Arkansas Administrative Procedure Act. See Ark. Code Ann. §§ 25-15-201 to 214 (Repl. 1996 and Supp. 1997). Section 25-15-212(c), in relevant part, provides “the filing of the petition does not automatically stay enforcement of the agency decision, but the . . . reviewing court may do so upon such terms as may be just.” After 120 days expired from the entry of the circuit court’s stay order, DHS moved to vacate the order under Ark. Code Ann. § 20-78-206 (d) (Supp. 1997) of the Child Care Facility Licensing Act which provides that if the reviewing court does not issue its findings within 120 days of the issuance of the court’s stay order, the stay shall be considered vacated.
The circuit court filed no findings within the 120-day period, and instead, the trial court entered a second stay order. Contending that the circuit court’s second stay order violates § 20-78-206 (d) and that the stay should be vacated, DHS seeks an interlocutory appeal under Supreme Court Rule l-2(a)(3) and Rule 2(a)(6) of the Rules of Appellate Procedure — Civil because the appeal involves an injunction.
DHS fails to denote how, for appeal purposes, a “stay order” is the equivalent of an injunction. In fact, while Rule 2(a)(6) allows a party to appeal from an interlocutory order “by which an injunction is granted, continued, modified, refused, or dissolved or by which an application to dissolve or modify an injunction is refused,” a trial court’s order is not appealable if it is merely intended to aid in the determination of the issues raised in the complaint and nothing more. Tate v. Sharp, 300 Ark. 126, 777 S.W.2d 215 (1989). Here, the circuit court’s stay order is not an injunction, but even if it were, the order appears to have been entered to aid in the determination of the issues pending below.
We accept jurisdiction of this case to permit DHS and Hudson to brief whether the stay order issued by the circuit court is an appealable order under the appellate rules relied on by DHS. The clerk of this court will expedite this case and promptly schedule dates for the filing of briefs by the parties. | [
-15,
-16,
-11,
-20,
74,
67,
24,
-74,
67,
-101,
103,
81,
-81,
-14,
-108,
123,
27,
47,
113,
121,
-61,
-73,
86,
64,
103,
-13,
19,
-43,
-65,
79,
100,
-2,
8,
112,
-118,
-43,
68,
64,
-55,
80,
-18,
3,
-102,
109,
113,
-61,
8,
49,
26,
15,
21,
-82,
-31,
45,
24,
-54,
-119,
72,
-37,
37,
92,
-48,
-102,
15,
91,
38,
-79,
36,
18,
7,
112,
126,
-124,
49,
9,
-7,
115,
-74,
-122,
116,
71,
59,
32,
96,
98,
3,
-56,
-25,
-68,
-88,
6,
-84,
-115,
-94,
-104,
25,
74,
7,
-106,
-75,
60,
-106,
14,
126,
102,
-27,
95,
46,
6,
-50,
-102,
-95,
30,
5,
60,
9,
-25,
65,
48,
52,
-113,
-60,
92,
66,
51,
91,
-82,
-110
] |
Annabelle Clinton Imber, Justice.
This is an interlocutory appeal. The State contends that the trial court erred when it suppressed evidence seized from Harold Rufus’s home because the search warrant was based upon a fatally defective affidavit. We reverse and remand.
On January 7, 1998, Officer Bob Andrews of the Jonesboro Police Department arranged for a confidential informant (“Cl”) to make a drug purchase from the appellee, Mr. Harold Rufus. After the purchase, Officer Andrews returned to the Drug Task Force Office where he relayed the details of the buy to Officer Greg Baugh. Based on what Officer Andrews told him, Officer Baugh prepared an affidavit for a search warrant, which provided in relevant part that:
THE UNDERSIGNED BEING DULY SWORN DEPOSES AND SAYS: THAT HE HAS REASON TO BELIEVE THAT; [crack cocaine, drug paraphernalia, records of drug transactions, and other drug-related evidence could be found at Harold Rufus’s residence.]
* * *
AND THAT THE FACTS TENDING TO ESTABLISH THE FOREGOING GROUNDS FOR ISSUANCE OF A SEARCH WARRANT ARE AS FOLLOWS: WITHIN THE PAST 48 HOURS, A Cl WAS MET, SEARCHED, AND GIVEN DTF BUY MONEY. THE Cl STATED CRACK COCAINE COULD BE PURCHASED FROM HAROLD RUFUS AT HIS RESIDENCE AT 216 EASY. THE Cl WAS FOLLOWED TO 216 EASY AND THE Cl WAS OBSERVED ENTERED THE RESIDENCE. A SHORT TIME LATER, THE Cl WAS OBSERVED EXITING THE RESIDENCE. THE Cl WAS FOLLOWED TO A PREDETERMINED LOCATION AND MET AGAIN. THE Cl HANDED OFFICERS A QUANTITY OF CRACK COCAINE THE Cl SAID WAS PURCHASED WHILE INSIDE THE RESIDENCE. THE Cl HAS BEEN PROVED TO BE RELIABLE SEVERAL TIMES IN THE PAST BY PROVIDING ACCURATE INFORMATION TO OFFICERS OF THE SECOND JUDICIAL DRUG TASK FORCE.
Officer Baugh, who admittedly had no personal knowledge of the drug transaction, signed the affidavit. In contrast, Officer Andrews, the officer who actually observed the drug buy, reviewed the affidavit but did not sign it.
Later that day, Officer Baugh and Officer Andrews presented the affidavit to Judge Goodson. After administering an oath to both officers, Judge Goodson reviewed the affidavit and asked the officers if it was correct. Both officers responded in the affirmative, but they did not disclose to the judge that it was based on Officer Andrew’s personal knowledge and not that of Officer Baugh. The judge signed the search warrant, which was executed on Mr. Rufus’s home later that evening. Based on the evidence seized from his home, the State charged Mr. Rufus with possession of cocaine with intent to deliver, simultaneous possession of drugs and a firearm, and being a felon in possession of a firearm.
After a hearing, the trial court granted Mr. Rufus’s motion to suppress the evidence seized from his home because Officer Baugh, the affiant officer, had no personal knowledge of the drug transaction. Specifically, the judge said at the conclusion of the hearing that:
The Court doesn’t have any problem, and wouldn’t have had any problem in sustaining and upholding the search warrant had the officer applying for the warrant indicated the source and nature of his information or had the officer that provided the information jointly signed the search warrant, but as it stands I am bound by the four corners of the warrant and the testimony of the affiant is that he had no personal knowledge upon which to base the search warrant and therefore the motion is granted.
* * *
If the officer that provided the information, who apparently was also present before the magistrate that issued it, if he had signed the affidavit and acknowledged it, certainly it would have been valid, but you have put on testimony from the officer that prepared it. . . that he had no personal knowledge whatsoever, other than what had been told to him and part of what had been told to him was hearsay on hearsay, and it wasn’t his personal information. The sad thing is, it would have been simple for the officer that provided the information to sign the search warrant and I am saying that the failure to do so was a fatal error.
Similarly, in its order of suppression, the trial court ruled that the affidavit:
failed to comply with the requirements of Rule 13.1(b) of the Arkansas Rules of Criminal Procedure. This finding is based upon the testimony that Officer Greg Baugh executed the Affidavit and that he was not possessed of first hand knowledge with respect to the contents of the Affidavit, but relied upon information supplied by Officer Bob Andrews. The affidavit does not comply with that portion of Rule 13.1(b) which requires that: “(I)f an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informants reliability and shall disclose, as far as practicable, the means by which the information was obtained.”
Accordingly, the court ruled that the search warrant was invalid because the supporting affidavit failed to comply with Ark. R. Crim. P. 13.1(b).
In response, the State argued during the suppression hearing that the evidence seized from Mr. Rufus’s home was admissible under the good-faith exception to the exclusionary rule enunciated in United States v. Leon, 468 U.S. 897 (1984). The trial court replied, that it was “aware of Leon and the Court does not believe that there was any purposeful wrongdoing on the part of the officer but that it was merely a ministerial error, oversight, in signing the affidavit for a search warrant.” Likewise, in its order of suppression the court rejected the State’s Leon argument and ruled that “although there was no purposeful wrongdoing on the part of an officer, that failure to comply with the requirements of Rule 13.1(b) of the Arkansas Rules of Criminal Procedure requires the suppression of the evidence seized.” Accordingly, the court suppressed all evidence seized from Mr. Rufus’s home, and the State filed this interlocutory appeal pursuant to Ark. R. App. P.— Crim. 3(a).
When reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling is clearly erroneous or against the preponderance of the evidence. Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998). In making this determination, we view the evidence in the light most favorable to the appellee. Fouse, supra; Langford, supra.
I. Arkansas Rule Criminal Procedure 13.1(b)
First, the State claims that the trial court erred when it ruled that the search warrant was invalid because the supporting affidavit failed to satisfy the requirements of Ark. R. Crim. P. 13.1(b), which provides that:
The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.
(Emphasis added.) Rule 13.1(b) incorporates the totality-of-the-circumstance test established in Illinois v. Gates, 462 U.S. 213 (1983), whereby:
[t]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying the hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding]” that probable cause existed. State v. Mosley, 313 Ark. 616, 856 S.W.2d 623 (1993); Rainwater v. State, 302 Ark. 492, 791 S.W.2d 688 (1990).
As we begin our Rule 13.1(b) analysis, it is important to note that the parties in this case do not question whether the affidavit sufficiently established the reliability and veracity of the confidential informant, or whether the information contained in the affidavit was sufficient to establish probable cause. In fact, the trial court clarified during the suppression hearing that the affidavit would have been sufficient had Officer Andrews either signed it or disclosed that the affidavit was based on his personal knowledge and not that of Officer Baugh.
We hold that the trial court erred when it applied Rule 13.1(b) to this case because the rule does not deal with misleading information or omissions in an affidavit supporting a warrant, which is the issue presented by this case. Moreover, we have held that an affidavit does not have to contain facts establishing the veracity and reliability of nonconfidential informants such as police officers, public employees, victims, and other witnesses whose identity is known. See, e.g., Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996) (citizen); Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996) (police officer); Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993) (State Crime Lab employee). Hence, the affidavit in this case could not have been fatally defective for failing to establish the veracity and reliability of either Officer Andrews or Officer Baugh.
The dissenting opinion contends that this case should be decided based on Rule 13.1(b). As explained above, Rule 13.1(b) provides that an affidavit may be based “in whole or in part on hearsay,” and then establishes when and how the reliability and veracity of the hearsay declarant must be established. The problem presented by this case is not that the affidavit was based on hearsay, or that the affidavit did not establish the reliability or veracity of the hearsay declarant, but rather is that Officer Baugh failed to disclose to the judge that the affidavit was based on hearsay. The failure to disclose, as will be fully explained later in this opinion, presents a Franks problem, not a Rule 13.1(b) problem. Hence we conclude that the dissenting opinion’s reliance on Rule 13.1(b) and its conclusion that Rule 13.1(b) will be “watered down” is misplaced.
II. False Material, Misleading Information, or Omissions in the Affidavit
Instead of Rule 13.1(b), the trial court should have applied Franks v. Delaware, 438 U.S. 154 (1978), which contains the proper analysis for determining whether false material, misleading information, or omissions render an affidavit in support of a search warrant fatally defective. In Franks, two police officers signed an affidavit that declared, in material part, that:
15. On Tuesday, 3/9/76, your affiant contacted Mr. James Williams and Mr. Wesley Lucas of the Delaware Youth Center where Jerome Franks is employed and did have personal conversation with both these people.
16. On Tuesday, 3/9/76, Mr. James Williams revealed to your affiant that the normal dress of Jerome Franks does consist of a white knit thermal undershirt and a brown leather jacket.
17. On Tuesday, 3/9/76, Mr. Wesley Lucas revealed to your affiant that in addition to the thermal undershirt and jacket, Jerome Franks often wears a dark green knit hat.
Id. (Emphasis added.) After the search warrant was issued and executed, it was discovered that the affiant officers had not personally interviewed the two witnesses mentioned above, and that the descriptions given by the witnesses were “somewhat different” from what was recited in the affidavit. Id. The trial court refused to grant a suppression hearing on this basis. Id. On appeal, the United States Supreme Court held that:
where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of pequry or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
Id. (Emphasis added.) Upon remand, the Delaware Supreme Court excised the false information from the affidavit, and determined that the remaining portions were sufficient to establish probable cause such that it was not even necessary to hold a suppression hearing on the issue. Franks v. State, 398 A.2d 783 (Del. 1979).
Since Franks was handed down in 1978, courts have consistently held that a warrant should be invalidated if a defendant shows by a preponderance of evidence: 1) that the affiant made a false statement knowingly and intentionally, or with reckless disregard for the truth, and 2) that with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause. United States v. Clapp, 46 F.3d 795 (8th Cir. 1995); Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). Similarly, when an officer omits facts from an affidavit, the evidence will be suppressed if the defendant establishes by a prepon derance of the evidence that: 1) the officer omitted facts knowingly and intentionally, or with reckless disregard, and 2) the affidavit, if supplemented with the omitted information, is insufficient to establish probable cause. United States v. Buchanan, 167 F.3d 1207 (8th Cir. 1999); Pyle, supra.
This is not the first time that we have been faced with an affidavit where the affiant officer failed to disclose to the issuing judge that part of the information contained therein was obtained from a different officer. In Pyle, supra, the affiant officer asserted that he identified Mr. Pyle talking to an intermediary in a controlled drug buy when in actuality the identification was made by another officer who did not sign the warrant. Pyle, supra. We held that this error did not constitute a Franks violation. Id.
As in Pyle, we conclude that Mr. Rufus has not satisfied his burden of establishing a Franks violation in this case. First, in fight of the trial court’s findings that there was no “purposeful wrongdoing on the part of the officer but that it was merely an ministerial error, oversight, in signing the affidavit for a search warrant,” we cannot say that Officer Baugh misled the judge knowingly and intentionally, or with reckless disregard. Furthermore, Officer Baugh’s conduct was less egregious than that in Franks, supra, where the officers wrote the affidavit in the first person and affirmatively stated on three occasions that they had personally spoken to the witnesses, when in fact, they had not. In contrast, Officer Baugh wrote the affidavit in the third person and, more importantly, never affirmatively stated that he had any personal knowledge of the facts contained in the affidavit. In fact, his affidavit begins with the declaration that he “has reason to believe” that the information contained therein is true. Flence, we conclude that Mr. Rufus has failed to satisfy the first prong of the Franks test.
As to the second prong of Franks, we must decide whether the affidavit, if supplemented with the omitted information, would not have supported a finding of probable cause. Again, we must answer this question in the negative in light of the court’s finding that it “wouldn’t have had any problem in sustaining and upholding the search warrant had the officer applying for the warrant indicated the source and nature of his information or had the officer that provided the information jointly signed the search warrant.” Likewise, the court also found that the affidavit “certainly would have been valid” if Officer Andrews had signed and acknowledged the affidavit. Simply put, because the trial court would have upheld the search warrant even if the affidavit had disclosed that the information came from Officer Andrews instead of Officer Baugh, we cannot say that the omission rendered the affidavit fatally defective under Franks. Accordingly, we reverse the order of suppression and remand the case for further proceedings consistent with this opinion.
The dissenting opinion contends that it is improper for us to reach the Franks analysis because it was not raised below. We disagree. Although neither of the parties nor the trial court specifically cited Franks, their arguments were based on the Franks holding. For instance, Mr. Rufus’s argument to the trial court was that the search warrant was fatally defective because Officer Baugh failed to disclose that the affidavit was based on hearsay from Officer Andrews. Although Mr. Rufus and the trial court labeled this a Rule 13.1(b) argument, it is, as explained above, a Franks argument. Likewise, the State argued that the court should overlook the error because it was a good-faith mistake that did not affect the probable-cause determination. In making this argument, the State incorrectly referred to Leon instead of Franks. We cannot honestly say that the parties failed to develop the Franks argument below simply because they referred to it by the wrong name. Furthermore, we emphasize that the trial court rendered rulings on the two-prongs of the Franks analysis. Because the Franks arguments were made below and the trial court rendered the necessary rulings, we disagree with the dissenting opinion’s assertion that this is a “straw-man issue.”
We also disagree with the dissenting opinion’s contention that this holding will “water down” Rule 13.1(b) and allow police officers henceforth to fail to disclose to a judge that the affidavit includes hearsay from another officer. The crucial facts of this case, which the dissenting opinion overlooks, are that the trial court found that Officer Baugh’s mistake was a good-faith, “ministerial” error, and that the error did not affect the probable-cause determination. Based on the unique facts presented by this case, we cannot say that these findings are clearly erroneous or against the preponderance of the evidence. However, in future cases it is very possible that a trial court could find that the nondisclosure occurred in bad-faith and was material to the determination of probable cause. Under such circumstances, the seized evidence would have to be suppressed. Faced with such a consequence, officers in future cases would be remiss if they “knowingly and intentionally, or with reckless disregard” failed to disclose that the affidavit included hearsay from another officer.
The dissenting opinion refers to the “objective standard” used in Leon and asserts, without citation to authority, that “[d]irect knowledge or disclosure of hearsay is essential to the validity of a warrant.” In making this assertion, the dissenting opinion claims that we have missed the real issue in this case.
We only need to turn to the facts of Franks to realize that this argument goes astray. In so few cases are we able to rely on a United States Supreme Court opinion that is directly on point. As in this case, the police officers in Franks failed to disclose that the affidavit included hearsay from another officer. As mentioned above, the facts of Franks were more egregious than this case because there the officers affirmatively declared that the information was based on their personal knowledge, whereas in this case the officers made no such affirmative misrepresentation and instead merely failed to disclose that fact to the judge. But what is more important about Franks, which the dissenting opinion has lost sight of, is that the Supreme Court gave us the exact legal analysis to use when officers make such an error. Different from the Leon analysis, the Franks analysis includes both a good-faith or intention prong and a materiality prong. As to the first prong, the dissenting opinion refers to the Leon “objective standard” and contends that a mere negligent nondisclosure is enough to render the warrant invalid. The Franks analysis, however, does not employ a negligence standard. Instead, the nondisclosure must be knowing, intentional, or reckless. Furthermore, the dissenting opinion has not even mention the materiality requirement, which is essential to a Franks analysis. In sum, the dissenting opinion has run astray because it relies upon Rule 13.1(b) and Leon, while ignoring the clear and applicable test established in Franks.
III. Relationship between Franks and Leon
Finally, we realize that there is some confusion as to the difference between the Franks analysis and the Leon good-faith exception. In particular, upon the State’s requests the trial court considered the Leon good-faith exception instead of the Franks analysis. Accordingly, we take this opportunity to attempt to dispel some of the confusion.
In Leon v. United States, 468 U.S. 897 (1984), the District Court suppressed evidence because it disagreed with the magistrate’s determination that there was sufficient probable cause to justify the issuance of a search warrant. On appeal, the United States Supreme Court held that evidence should not be suppressed when it was obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. Id. The Court then explained that:
Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware, 438 U.S. 154 (1978). The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit “so lacking in indicia of probable cause as to render official behef in its existence entirely unreasonable.” Brown v. Illinois, 422 U.S., at 610-611 (Powell, J., concurring in part); see Illinois v. Gates, supra, at 263-264 (White, j., concurring in judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient - i.e., in failing to particularize the place to be searched or the things to be seized - that the executing officers cannot reasonably presume it to be valid.
Id. (Emphasis added.) Hence, a Franks analysis applies only when the affidavit is allegedly defective due to error on the part of the police. There the reviewing court must determine if the officer’s conduct was so egregious and the error so material that the evidence should be suppressed. In contrast, the Leon analysis applies when the search ivarrant is allegedly defective due to an error on the part of the magistrate. Pursuant to Leon, the reviewing court must determine if the magistrate’s error was so obvious that the officers could not in good faith have thought that the warrant was valid. See Wayne R. LaFave, Search and Seizure, §§ 1.3 & 4.4 (3rd ed. 1996). Because the case before us today involved the first situation, and not the latter, we conclude that the trial court should have applied Franks instead of Leon.
Reversed and remanded.
Brown, J., dissents.
Although the trial court did not cite Franks, it nevertheless made the necessary factual finding required by Franks. | [
48,
-20,
-24,
-116,
58,
-31,
8,
58,
83,
-95,
101,
115,
-19,
122,
0,
123,
-29,
125,
116,
105,
-51,
-73,
102,
33,
-14,
-13,
106,
-43,
-75,
-49,
-24,
-36,
92,
52,
-126,
69,
102,
72,
-25,
88,
-126,
33,
-104,
70,
82,
82,
36,
43,
-100,
15,
49,
-34,
-14,
46,
25,
-53,
-23,
44,
-53,
-72,
88,
-15,
-100,
29,
-49,
22,
-93,
118,
-71,
13,
-8,
111,
-40,
49,
1,
104,
115,
-90,
-126,
116,
11,
29,
12,
100,
98,
0,
-115,
-17,
-68,
-116,
54,
-81,
-98,
38,
82,
73,
99,
37,
-106,
-99,
108,
16,
13,
-28,
99,
-43,
25,
108,
-117,
-54,
-108,
-109,
31,
36,
-106,
27,
-49,
1,
80,
112,
-49,
-30,
92,
87,
49,
-101,
-114,
-41
] |
Robert L. Brown, Justice.
Appellant Eric Hamel appeals on the basis that the trial court erred in dismissing his petition for postconviction relief under Ark. R. Crim. P. 37, when that petition was received more than ninety days after judgment was entered against him. We discern no error in the trial court’s dismissal and affirm.
The facts are not in dispute. Hamel pled guilty to a reduced charge of first-degree murder and was sentenced to forty years in prison with ten years suspended. On June 11, 1996, the judgment of conviction was entered against him in the Benton County Circuit Clerk’s office. On September 5, 1996, which was eighty-six days after entry of judgment, Hamel placed his Rule 37 petition in the inmate mailing system at the Cummins Unit of the Department of Correction. The Legal Mail Log at the Cummins Unit substantiates this fact. On September 11, 1996, Hamel’s petition was stamped filed in the Benton County Circuit Clerk’s office. Because Hamel’s petition was file-marked on the ninety-second day after entry of judgment, the trial court dismissed the petition.
Hamel’s sole argument on appeal is that the trial court erred in dismissing his petition and urges this court to adopt the “Mailbox Rule,” which provides that a pro se inmate files his or her petition at the time the petition is placed in the hands of prison officials for mailing. In support of his argument, Hamel cites us to the reasoning in Houston v. Lack, 487 U.S. 266 (1988), where the United States Supreme Court concluded that a notice of appeal in a habeas corpus case was filed when the petitioner delivered that notice to prison authorities for mailing. The rationale of the Court was that prison inmates were foreclosed from being able to monitor the progress of their appeals by virtue of their incarceration and were forced “to entrust their appeals to the vagaries of the mail. . . .” 487 U.S. at 271. The pertinent federal statute involved in Houston provided that appeals from a judgment shall not be brought “unless the notice of appeal is filed within thirty days after the entry of such judgment.” See 28 U.S.C. § 2107. Federal Rules of Appellate Procedure 3(a) and 4(a)(1) were even more specific with regard to the filing required. Both specified that the notice of appeal be filed “with the clerk of the district court.” Be that as it may, the Court concluded that filing by pro se inmates occurred when the notice of appeal was delivered to prison authorities.
The State, on the other hand, urges this court to follow the plain language of our rule, which reads in pertinent part:
(c) If a conviction was obtained on a plea of guilty, or the petitioner was found guilty at trial and did not appeal the judgment of conviction, a petition claiming relief under this rule must be filed in the appropriate drcuit court within ninety (90) days of the date of entry of judgment.
Ark. R. Crim. P. 37.2(c) (emphasis added). The State continues by citing caselaw where this court has held that the time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on an untimely petition for postconviction relief. See, e.g., Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996). This court has further held that the date of filing a petition for postconviction relief is determinative of whether the trial court has jurisdiction to reach the merits of the case. See Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996). The State, finally, emphasizes the point that this court has held that pro se inmates are required to conform to the rules of appellate procedure. See, e.g., Daffron v. State, 325 Ark. 411, 926 S.W.2d 662 (1996) (per curiam) (abstract deficiency).
We view our procedural rule, Ark. R. Crim. P. 37.2(c), as controlling in this case. That rule requires in language that is clear and unambiguous that the petition must be filed in the appropriate circuit court within ninety days of judgment. That, of course, did not occur in this case. Though Hamel argues vigorously that this court should adopt the reasoning of Houston v. Lack, supra, we decline to do so. This court has noted in a prior decision that the Houston case was no more than the Supreme Court’s interpretation of federal rules which have no applicability in our jurisdiction. See Key v. State, 297 Ark. 111, 759 S.W.2d 567 (1988) (per curiam).
The trial court correctly dismissed Hamel’s petition for lack of jurisdiction.
Affirmed.
Corbin, J., not participating. | [
-80,
-12,
95,
-100,
10,
-61,
34,
-72,
82,
-93,
44,
83,
-83,
-45,
-60,
123,
-9,
107,
116,
-7,
-52,
-73,
55,
65,
-110,
-77,
-53,
-43,
115,
109,
-26,
-38,
72,
112,
-54,
-59,
70,
72,
-61,
-40,
-50,
5,
-119,
-9,
-47,
-128,
32,
106,
28,
15,
49,
-100,
-29,
47,
56,
-62,
-24,
44,
-39,
-83,
-102,
-79,
-94,
15,
-5,
22,
-95,
-105,
-112,
-121,
120,
42,
-116,
57,
2,
-8,
112,
-76,
-122,
116,
107,
-71,
36,
102,
99,
33,
17,
-19,
-84,
-120,
14,
-2,
-67,
-89,
-104,
0,
75,
-27,
-74,
-67,
53,
22,
39,
126,
110,
5,
93,
44,
-127,
-50,
-76,
-105,
63,
16,
-124,
-5,
-21,
37,
32,
117,
-50,
-62,
88,
71,
121,
-45,
-114,
-46
] |
Per Curiam.
Appellant James Slack was convicted of kidnapping and sentenced to sixty years’ imprisonment. Through his attorney, Kenneth G. Fuchs, Appellant has filed a motion for belated appeal. ■ The motion reflects that the sentence was pronounced on May 5, 1998, but that the judgment was not entered until numerous weeks later. The motion further reflects that Appellant was not given any notice that the judgment had been filed. Accordingly, no timely notice of appeal was ever filed. Appellant now prays for a belated appeal, pursuant to Rule 2(e) of the Arkansas Rules of Appellate Procedure—Criminal. We deny the motion.
Rule 2(e) provides in pertinent part:
The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. However, no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of judgment or entry of the order denying postconviction relief from which the appeal is taken. If no judgment of conviction was entered of record within ten (10) days of the date sentence was pronounced, application for belated appeal must be made within eighteen (18) months of the date sentence was pronounced. [Emphasis added.]
This court has interpreted Rule 2(e) as requiring an affidavit upon application to this court for a belated appeal. Harris v. State, 327 Ark. 14, 935 S.W.2d 568 (1997). See also Morrissey v. State, 323 Ark. 803, 917 S.W.2d 167 (1996) (holding that when a good reason is shown by affidavit, this court may act upon and decide a case in which the notice of appeal was not given).
Here, Appellant has timely filed the motion for belated appeal (within eighteen months from the date that his sentence was pronounced), but he has failed to file an affidavit in support of his motion. Because such an affidavit is required by Rule 2(e), we must deny Appellant’s motion at this time. We direct Appellant to submit the required affidavit, demonstrating good reason for failing to timely file the notice of appeal, within thirty days of the date of this per curiam opinion. Upon receipt of the affidavit, we will consider the motion. | [
-106,
-32,
-3,
31,
-118,
-31,
58,
-72,
82,
-57,
105,
81,
-81,
-44,
4,
123,
115,
43,
117,
-7,
85,
-77,
119,
-63,
98,
-13,
-61,
-43,
113,
103,
-2,
-4,
76,
113,
-54,
-47,
70,
-118,
-55,
-104,
-114,
1,
27,
-19,
81,
68,
32,
-5,
24,
15,
49,
-34,
-29,
43,
61,
74,
-23,
108,
75,
-74,
-64,
17,
-77,
5,
-3,
20,
-127,
-124,
19,
-122,
112,
62,
-100,
17,
0,
-24,
114,
-74,
-122,
116,
105,
-103,
44,
100,
98,
-127,
13,
-9,
-72,
40,
78,
22,
29,
-90,
-5,
1,
75,
37,
-106,
-11,
63,
20,
13,
124,
-18,
-123,
85,
44,
-126,
-50,
-48,
-79,
31,
57,
-92,
11,
-29,
17,
16,
117,
-50,
-28,
92,
86,
123,
91,
-50,
-80
] |
Robert L. Brown, Justice.
This is a one-brief appeal in which the appellant, State of Arkansas Office of Child Support Enforcement (hereinafter “OCSE”), appeals an order abating future child support for appellee Thornell Williams on two grounds: (1) the issue of his paternity was decided in the divorce decree and res judicata applies; and (2) abatement of future child support is not in the best interests of the children. We agree that res judicata applies, and we reverse and remand.
On July 10, 1979, Brenda F. Williams and the appellee were married. On March 15, 1990, the chancery court entered a decree granting Brenda Williams a divorce and awarding her custody of the three children born during the marriage (Francis Williams, Brandon Williams, and Thornell Williams, Jr.), subject to reasonable visitation by the appellee. The appellee was ordered to pay $80 a week in child support and to pay for all reasonable medical and dental bills incurred on behalf of the children.
On August 1, 1996, Brenda Williams filed a motion to modify the child support obligation based on the appellee’s increased income and to recover accrued child-support arrearages of $9,881.66. Because she had assigned her rights to OCSE, OCSE was allowed to intervene. Also, on August 1, 1996, the appellee filed an agreement to pay child support. In this document, he admitted that he was the natural parent of the three children and agreed to a consent judgment on the arrearages. He also agreed to increase child support to $95 a week and to participate in income-withholding for that purpose. The consent judgment was entered on August 2, 1996.
On November 25, 1996, OCSE filed a motion for citation against the appellee for failing to comply with the consent judgment, and the chancery court entered an order for the appellee to show cause why he should not be held in contempt. The appellee filed a counterpetition to modify the child-support order, stating that he had been informed by Brenda Williams and others since entry of the consent judgment that he was not the biological father of Brandon Williams and Thornell Williams, Jr. In his petition, he requested approval for blood tests to establish paternity of the children and asked the chancery court to abate his child-support obligation. OCSE responded, pleading res judicata based on the divorce decree and Ark. Code Ann. § 9-10-115 (Supp. 1995).
The chancery court ordered the paternity tests, abated the child support until the tests were done, and found the appellee in contempt of court. The blood tests subsequently determined that the appellee was not the father of the two boys. On July 10, 1998, the chancery court entered an order permanently abating the appellee’s child-support obligation. Prior to entry of the order, the court ruled from the bench that from a purely legal standpoint, the argument that res judicata applied was correct, but that from an equitable standpoint, he was not going to force the appellee to pay child support on two children who were not biologically his.
I. Res Judicata
For its first point on appeal, OCSE urges that the divorce decree was res judicata on the issue of paternity. Res judicata bars relitigation of a subsequent suit when: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. See Miller County v. Opportunities, Inc., 334 Ark. 88, 971 S.W.2d 781 (1998); Hamilton v. Arkansas Pollution Control & Ecology Comm’n, 333 Ark. 370, 969 S.W.2d 653 (1998). Res judicata bars not only the relitigation of claims that were actually litigated in the first suit but also those that could have been litigated. See Wells v. Arkansas Pub. Serv. Comm’n, 272 Ark. 481, 616 S.W.2d 718 (1981). Where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional reme dies. See Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 660 (1988).
In the past, we have applied the doctrine of res judicata to the issue of paternity when paternity was established under a divorce decree. See McCormac v. McCormac, 304 Ark. 89, 799 S.W.2d 806 (1990). In McCormac, a mother sought to relitigate the paternity issue following a divorce decree. The request was included in her response to her ex-husband’s motion to hold her in contempt for failing to comply with visitation. In the original divorce decree, the chancery court had found that it had subject-matter jurisdiction and had awarded custody, set child support, and fixed visitation. On appeal, we held that the mother’s paternity claim was barred by res judicata because the mother pled in the divorce action that the child was born of the marriage, and the father admitted this fact. Our court of appeals has held similarly in several cases. See, e.g., Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997); Scallion v. Whiteaker, 44 Ark. App. 124, 868 S.W.2d 89 (1993); Department of Human Servs. v. Seamster, 36 Ark. App. 202, 820 S.W.2d 298 (1991); Benac v. State, 34 Ark. App. 238, 808 S.W.2d 797 (1991).
The weight of authority in other jurisdictions is in accord with this view of the res judicata effect of divorce decrees on the paternity issue. See, e.g., In re Paternity of Rogers, 697 N.E.2d 1193 (Ill. App. Ct. 1998); Love v. Love, 959 P.2d 523 (Nev. 1998); Godin v. Godin, 725 A.2d 904 (Vt. 1998); Gann v. Gann, 705 So.2d 509 (Ala. Civ. App. 1997); Grice v. Detwiler, 488 S.E.2d 755 (Ga. Ct. App. 1997); Beyer v. Metze, 482 S.E.2d 789 (S.C. Ct. App. 1997); In re A.L.J., a/k/a A.L.E., 929 S.W.2d 467 (Tex. Ct. App. 1996); see also Donald M. Zupanec, Annotation, Effect, In Subsequent Proceedings, Of Paternity Findings Or Implications In Divorce Or Annulment Decree Or In Support Or Custody Order Made Incidental Thereto, 78 A.L.R.3d 846.
The Vermont Supreme Court set out succinctly the policy considerations which favor this principle:
Although we understand plaintiffs interest in ascertaining the true genetic makeup of the child, we agree with the many jurisdictions holding that the financial and emotional welfare of the child, and the preservation of an established parent-child relationship, must remain paramount. . . . Whatever the interests of the presumed father in ascertaining the genetic “truth” of a child’s origins, they remain subsidiary to the interests of the state, the family, and the child in maintaining the continuity, financial support, and psychological security of an established parent-child relationship. Therefore, absent a clear and convincing showing that it would serve the best interests of the child, a prior adjudication of paternity is conclusive.
Godin, 725 A.2d at 910 (citations omitted). The Vermont Supreme Court further noted that its holding would deter parents who might seek to dissolve their parental bonds for financial or for other self-serving reasons. See Hackley v. Hackley, 395 N.W.2d 906, 913-14 (Mich. 1986) (best interests of child in maintaining stability and preventing psychological trauma must prevail over unfairness to father; contrary decision would result in chaos and humiliation); In re Paternity of JRW & KB, 814 P.2d 1256,1265 (Wyo. 1991) (“Because of the potentially damaging effect that relitigation of a paternity determination might have on innocent children, the doctrines of res judicata and collateral estoppel are rigorously observed in the paternity context.”).
In the case before us, the divorce decree stated that the children were born of the marriage, and the chancery court awarded custody, ordered child support, and set visitation. The issue of paternity, accordingly, was decided. See McCormac v. McCormac, supra; Anderson v. Anderson, 552 N.E.2d 546 (Mass. 1990) (a divorce decree is an adjudication of the paternity of a child of the marriage); Godin v. Godin, supra (paternity necessarily determined in original divorce proceeding, which awarded child support). Moreover, the appellee had the opportunity to raise and litigate the paternity issue, but he failed to do so. In this regard, there was some evidence, based on Brenda Williams’s testimony, that he knew that the two boys were not biologically his much earlier. He also signed an agreed order in 1996, admitting that he was the father of the children. Under these circumstances, we hold that the principle of res judicata applies and that the chancery court erred in failing to do so.
II. Paternity Code
Although it is not briefed by OCSE and seemingly was not relied on by the chancery court, we feel constrained to address Ark. Code Ann. § 9-10-115(d) (Supp. 1995), which addresses modification of a child-support order when it is determined in a paternity suit that a man is not the biological father of a child. See, e.g., Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998). In Littles, this court relied on § 9-10-115(d) and held that a man who had been adjudicated the father of a child in a paternity suit was entitled to relief from future child-support obligations, after scientific testing proved that he was not the child’s biological father. We said: “[T]he statute mandates that an adjudicated father in Mr. Littles’s position receive prospective relief from a child-support judgment.” Littles, 333 Ark. at 481, 970 S.W.2d at 262.
Section 9-10-115, however, is part of the Paternity Code and was intended to apply only to judicial findings of paternity or to acknowledgments of paternity by both parents under Ark. Code Ann. § 9-10-120 (Supp. 1995). There is nothing in § 9-10-115 to even suggest that its applicability extended to divorce decrees. Furthermore, we view an adjudication of paternity in a paternity suit, as well as an acknowledgment of paternity by both parents under the Paternity Code as being vastly different from an adjudication of paternity in a divorce decree. In the latter situation, there has been a marriage and in most situations, the children have known the husbands as their fathers. A parental relationship has, thus, been established with the child or children. In a paternity suit, the parent-child relationship has not been forged, and the stability of the family unit is not an issue. This distinction lies at the heart of the disparate treatment accorded scientific testing after a finding of paternity under the Paternity Code and scientific testing which occurs after a divorce decree under our caselaw.
Accordingly, because paternity was adjudicated in a divorce decree in the instant case, we hold that McCormac v. McCormac, supra, controls and res judicata bars the appellee from reopening the paternity issue following the divorce decree.
Reversed and remanded.
Brenda Williams testified to conversations with the appellee “when the kids were younger” about the two boys not being his, which suggests the appellee knew the two boys were not his before the consent judgment.
This code section was amended by Act 1296 of 1997. | [
112,
-18,
-27,
92,
10,
-125,
123,
33,
90,
-85,
-25,
-47,
-89,
-25,
20,
105,
-125,
45,
97,
121,
-45,
-77,
7,
65,
122,
-13,
-15,
-46,
-79,
89,
-26,
-10,
92,
48,
-118,
85,
66,
-54,
-27,
84,
-90,
0,
27,
100,
89,
-122,
36,
35,
82,
15,
49,
-74,
-109,
46,
61,
74,
108,
46,
89,
-32,
72,
-110,
-118,
7,
-33,
19,
-79,
-92,
-101,
5,
74,
46,
-36,
49,
8,
-23,
51,
-90,
-126,
116,
75,
-71,
8,
112,
99,
3,
-123,
-49,
120,
-120,
-42,
-2,
-99,
-106,
-37,
120,
75,
45,
-74,
-74,
124,
84,
-113,
-2,
89,
-115,
22,
-28,
-118,
-53,
-108,
-71,
-116,
-104,
12,
2,
-29,
101,
48,
117,
-61,
-32,
125,
-57,
123,
-101,
-106,
-105
] |
Richard B. Adkisson, Chief Justice.
Petitioner, Sandra Thomas, seeks a writ of prohibition to prohibit the Poinsett County Circuit Court from hearing a bastardy appeal filed by respondent, Gary Easley. The trial court denied petitioner’s motion to dismiss the appeal, holding that respondent had substantially complied with the procedural requirements for filing an appeal.
On May 21, 1981, the Poinsett County Court determined that respondent was the father of petitioner’s child and made a handwritten notation to that effect in the county court docket. This judgment was filed with the county clerk on June 4,1981. Respondent filed a notice of appeal on July 2, 1981, but did not include an appeal bond or affidavit of appeal. On July 9, 1981, he filed a second notice of appeal, this time including an affidavit of appeal and an appeal bond.
The issue in this petition is whether respondent had six months or 30 days to perfect his appeal to circuit court from county court in a bastardy proceeding. If respondent had six months to perfect his appeal, the appeal was timely filed. However, if respondent had 30 days to perfect his appeal, then his appeal was filed too late since we held in Epperson v. Sharp, 222 Ark. 456, 261 S.W.2d 267 (1953) that an appeal from county court in bastardy cases must be within 30 days; Ark. Stat. Ann. § 34-709 requires a bond; and that where the appeal was attempted without bond, and the 30-day period expired, the attempt was ineffectual and proceedings were properly dismissed by circuit court.
We have two statutory provisions and the Rules of Inferior Courts which touch on the issue of whether the time for appeal is six months or 30 days. Ark. Stat. Ann. § 27-2001 (Repl. 1979) provides generally for appeals from county court to circuit court:
Appeals shall be granted as a matter of right to the circuit court from all final orders and judgments of the county court... at any time within six (6) months after the rendition thereof. . . .
However, Ark. Stat. Ann. § 34-709 (Repl. 1962) provides specifically for appeals from county court to circuit court in bastardy proceedings:
Appeal to circuit court. — An appeal will lie from a j udgmen t of the coun ty court to the circuit court in all cases of bastardy, as in cases of appeal from judgments of justices of the peace to circuit courts; but no appeal shall be granted until affidavit and appeal bond is filed. . . . (Emphasis supplied)
Appeals from judgments of the justices of the peace are governed by Rule 9 of the Inferior Court Rules, Ark. Stat. Ann., Vol. 3A (Repl. 1979) which provides:
(a) Time for Taking Appeal. All appeals in civil cases from inferior courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within thirty (30) days from the date of the entry of the judgment.
However, Rule 1 of the Inferior Court Rules states that:
Scope of Rules. These rules shall govern the procedure in all civil actions in the inferior courts of this State, except county courts.
The question then devolves to which law is applicable: the general provisions of Ark. Stat. Ann. § 27-2001 and Rule 1, or the specific provisions of Ark. Stat. Ann. § 34-709 and Rule 9. In statutory construction where specific expressions conflict with general expressions, the greater effect is given to the more specific expression. See Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656 (1912); Scott v. Greer, 229 Ark. 1043, 320 S.W.2d 262 (1959); See generally 82 C.J.S. Statutes § 367b (1953). Therefore, we conclude that appeals from county court to circuit court in bastardy proceedings must be perfected within 30 days.
Writ granted.
Holt, J., concurs. | [
80,
-31,
-3,
28,
-86,
-32,
122,
60,
82,
-21,
-27,
83,
-91,
-26,
20,
123,
59,
107,
101,
-7,
-55,
-73,
55,
96,
98,
-13,
-102,
-42,
117,
73,
-26,
-12,
72,
112,
-54,
-43,
70,
104,
-117,
88,
-50,
11,
-117,
-19,
89,
3,
60,
97,
82,
15,
53,
-74,
-29,
43,
92,
-62,
72,
104,
-53,
40,
88,
-16,
-118,
31,
-66,
20,
-79,
-123,
-100,
-59,
-48,
46,
-104,
49,
0,
-24,
115,
38,
-122,
116,
74,
-119,
8,
118,
98,
33,
93,
-25,
40,
-88,
38,
46,
-103,
-89,
-104,
41,
75,
79,
-66,
-107,
127,
-108,
-114,
126,
106,
-52,
93,
124,
-96,
-50,
-110,
-91,
23,
40,
-112,
3,
-29,
-27,
112,
117,
-51,
-12,
84,
71,
49,
-37,
-114,
-78
] |
John I. Purtle, Justice.
Mary Samples, administratrix for the estate of Edgar L. Samples, filed suit in the Washington County Circuit Court to collect benefits pursuant to a policy of credit life insurance which had been issued to the decedent shortly before his death. The trial court, without a jury, found the appellant liable in the amount of $3,938.70, plus a penalty of 12%, plus interest and attorney’s fees. The appellant argues three points for reversal: (1) the trial court erred in holding the “good health” statement was materially correct; (2) the trial court erred in holding that appellant had been placed on notice of the decedent’s health condition; and, (3) the trial court erred in awarding excess damages. We agree with the appellant’s third contention but disagree as to the first two.
On September 11, 1976, the decedent and his wife, the appellee, went to a local Ford agency and purchased a 1976 Ford pickup truck. In conjunction with the sale the decedent purchased a policy of credit life insurance and in the process executed a “good health” statement. At the time he was drawing 100% disability from the Veterans Administration founded upon an anxiety reaction and chronic brain syndrome. The day following the signing of the contract the deceased suffered a myocardial infarction which resulted in his death on September 15, 1976. The appellant rejected payment on the policy and returned the premium, of $88.61, for credit on the contract. It was appellant’s contention that the deceased was suffering from heart disease at the time he executed the “good health” statement. The death certificate indicated that the infarction occurred approximately 48 hours before death and that deceased had been suffering from arteriosclerosis for five years. This evidence was essentially undisputed by the appellee.
The trial court found, among other things, that the agent who sold the insurance policy was a soliciting agent. The court further held that the agent learned of the insured’s poor health and that he was drawing disability insurance prior to his signing of the application for insurance. Most importantly, the trial court found that the deceased did not make any specific misstatement or false statement. The judgment was in the amount of $3,938.70 on the policy, a penalty of 12%, interest from the date suit was brought, and an attorney’s fee in the amount of $500.
Apellant’s first argument is that the “good health” statement was materially incorrect. Accordingly, the application was alleged to be void pursuant to Ark. Stat. Ann. § 66-3208 (b) (Repl. 1980). Among other things, the statute requires that in applications for life or disability insurance the statements made by the annuitant shall be deemed to be representations and not warranties. The statute further provides:
Misrepresentation, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(a) Fraudulent; or
(b) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
(c) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract in as large an amount or at the same premium or rate, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.
There is no question but that the “good health’’ statement is incorrect as a matter of law when the insured is aware of an affliction which would seriously affect the risk. Southern Security Life Insurance Co. v. Smith, 259 Ark. 853, 537 S.W.2d 542 (1976). The ultimate question presented under this point is whether the insured knew at the time of the statement that he was suffering from a heart disease which resulted in his subsequent death. In searching the record we are unable to find evidence clearly indicating that either the deceased or his wife knew he was suffering from arteriosclerosis or other heart disease. It is true that on two or three occasions the deceased was temporarily treated for hypertension. In fact, there is evidence to indicate that he had suffered from symptoms similar to heart disease in the past. However, the record does not show that he was on medication for arteriosclerosis or that he had been told that he was suffering from any type of heart disease. Appellee does not deny that deceased was afflicted with arteriosclerosis but denies that either the deceased or the appellee had knowledge of this condition. It is appellee’s position that al though the deceased was suffering from a heart disease, it was unknown to him or his wife. We have held that a “good health” statement on the application for life insurance, even if materially incorrect in some respects, will not void the policy unless the insurer shows a causal relation between the misrepresentation and the loss. National Old Line Insurance Co. v. People, 256 Ark. 137, 506 S.W.2d 128 (1974). We cannot say that the trial court’s judgment was clearly against the preponderance of the evidence. Applicant died as a result of a disease which was not connected to his total disability condition. Therefore, the trial court could properly find there was no causal relation between the misrepresentation and the loss.
Next, the appellant argues that it was not placed on notice of the deceased’s actual health condition thereby waiving its right to deny benefits under the policy. Even if we accept the fact that notice to the agent was notice to the appellant, we do not find that there was any notice relating to heart disease. One reason there was no notice is because the decedent apparently had no knowledge of the condition which obviously existed at the time he made application for the insurance. However, we do agree with appellant’s contention that notice to a soliciting agent is neither binding nor sufficient authority to waive policy requirements. Continental Insurance Companies v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978). We do not think the appellant was placed on notice of the decedent’s bad health condition which contributed to his death for the reason that the deceased had no knowledge of his condition. Therefore, so far as the deceased was concerned, he answered the question truthfully when he said he was in good health. The “good health” statement obviously did not include the condition which allowed him to receive his Veterans Administration benefits because by agreement his disability check was to be used to pay for the pickup truck.
It may seem harsh in a situation such as this where the applicant died the day following his application for reasons which already existed. However, the General Assembly seemed to have in mind such situations as this when they enacted Ark. Stat. Ann. § 66-3208 (b). The facts of the present case do not lend themselves to support the exceptions set out in the foregoing-statute.
Finally, the appellant argues the court erred in the amount of the judgment and other benefits. We agree. The terms and conditions of the contract of life insurance would not exceed the maximum amount of the installment contract. The amount financed in this case was $3,391.36. Finance charges in the amount of $547.43 were added which brought the total to be paid out in the 35 monthly installments to be $3,938.79. The finance charges were not all earned and neither were all of the charges for the insurance. Therefore, the case should be returned to the trial court to determine the amount of payoff on the installment contract. Since the amount to be determined will be obviously less than the amount sought in the complaint, the appellee was not entitled to the penalty and attorney’s fee. Such claim is allowed only when the recovery is in the amounts sued for. Ford Life Insurance co. v. Jones, 262 Ark. 881, 563 S.W.2d 399 (1978). Therefore, we affirm in part and remand in part with directions for the trial court to proceed in a manner not inconsistent with this opinion.
Affirmed in part; reversed and remanded in part. | [
-16,
108,
-44,
-98,
11,
32,
58,
-126,
86,
-128,
55,
83,
-17,
-61,
85,
47,
-3,
-83,
69,
120,
-107,
-77,
23,
-125,
-10,
-77,
-7,
-44,
-112,
93,
103,
-35,
13,
40,
-62,
69,
-26,
10,
-59,
90,
-58,
-106,
-119,
-23,
-39,
82,
48,
111,
84,
75,
113,
-114,
-125,
46,
19,
-53,
40,
40,
89,
-95,
-64,
-80,
-118,
5,
123,
27,
-79,
4,
-98,
47,
-38,
10,
-104,
-79,
8,
-4,
58,
-74,
-58,
100,
35,
-103,
13,
98,
103,
-80,
1,
-19,
-56,
-104,
47,
-34,
31,
-124,
-106,
121,
25,
12,
-65,
-97,
124,
12,
-113,
-8,
-4,
92,
15,
40,
1,
-114,
-74,
-79,
-49,
-16,
-100,
3,
-9,
-121,
54,
113,
-49,
-86,
92,
-61,
117,
-101,
-98,
-106
] |
Robert H. Dudley, Justice.
This case was originally filed against petitioners, Ford Life Insurance Company and Ford Motor Credit Company, in circuit court. Petitioners then removed the case to federal district court. After discovery in federal court, the plaintiff took a voluntary non-suit and refiled the case in circuit court against petitioners and additional resident defendants. Defective summonses were issued and served upon petitioners. The summonses were defective because they advised petitioners that they had 20 days to answer instead of the 30 days allowed to out-of-state defendants, and they advised them to serve their answers on plaintiff’s attorney instead of filing them with the court clerk. The trial court refused to quash the summonses. Petitioners now seek a writ of prohibition to prevent the trial court from exercising jurisdiction. Jurisdiction to hear the petition for the writ of prohibition is in this Court pursuant to Rule 29 (1) (f). We deny the petition.
The form of summons is governed by ARCP Rule 4 (b) which provides as follows:
Form: The summons shall b$ 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 plaintiff’s 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 will be entered against him for the relief demanded in the complaint.
The summonses are clearly defective and voidable. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). However, the trial court in a detailed finding of fact found there was no prejudice to the petitioners and refused to quash the summonses. We agree. The petitioners’ counsel timely appeared specially and properly filed motions in an effort to have the defective summonses quashed and alternatively filed timely answers. The petitioners have not been denied either notice or an opportunity to be heard. They have not been misled by the defective summonses. There is no prejudice to petitioners. The error is harmless. Under these circumstances, the petition should be denied. George v. Jernigan, Judge, 262 Ark. 610, 560 S.W.2d 221 (1978).
Petition denied. | [
-16,
-3,
-28,
-116,
11,
-63,
48,
-78,
-41,
-53,
103,
83,
-17,
-14,
-124,
43,
-5,
59,
117,
123,
-47,
-78,
87,
2,
114,
-77,
72,
21,
-75,
75,
-27,
-65,
76,
48,
-22,
-43,
-58,
-56,
-123,
90,
-58,
-127,
25,
-28,
-71,
-104,
48,
-21,
67,
79,
69,
30,
-29,
46,
27,
75,
-87,
104,
123,
-83,
-64,
-16,
-115,
5,
127,
3,
-95,
-60,
-104,
-127,
122,
24,
-128,
17,
59,
-8,
51,
-74,
-122,
116,
43,
-103,
0,
102,
99,
-128,
1,
-57,
-8,
-104,
62,
-66,
13,
-90,
-77,
105,
107,
8,
-74,
-99,
120,
22,
-89,
-8,
110,
21,
29,
108,
10,
-49,
-74,
-95,
-113,
114,
-104,
3,
-26,
-124,
54,
113,
-49,
-9,
94,
67,
57,
-101,
15,
-99
] |
Per Curiam.
In 1974, petitioner Sam A. Weems was tried and found guilty of serious violations of the Code of Professional Conduct. The trial court entered judgment of permanent disbarment. On appeal we affirmed the judgment of disbarment but modified the term to three years of mandatory disbarment after which time petitioner could apply to the State Board of Law Examiners for a determination of his fitness to again practice law. Weems v. The Supreme Court Committee on Professional Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975).
The three year period of mandatory disbarment has passed and petitioner now seeks to circumvent making application to the Board of Law Examiners by asking this Court to admit him directly.
Our original opinion and supplemental opinion are unequivocal in holding that any readmittance to the practice of law must be subject to a determination of fitness to practice by the State Board of Law Examiners. Weems v. State Board, supra. Thus, the point was previously in dispute and has been finally settled. It is res judicata. The petition is denied.
Holt and Hickman, JJ., not participating. | [
52,
-5,
-43,
-68,
10,
96,
58,
29,
81,
-93,
103,
113,
-29,
-38,
-123,
121,
17,
109,
80,
91,
-59,
-73,
118,
64,
-90,
-109,
-128,
-59,
-8,
79,
-12,
29,
76,
48,
-54,
-43,
70,
-56,
-55,
84,
-82,
5,
25,
76,
80,
-47,
50,
33,
-48,
15,
49,
-42,
-93,
-86,
27,
79,
-24,
108,
73,
-87,
80,
-120,
-104,
-107,
127,
20,
-77,
7,
30,
-121,
122,
110,
28,
17,
0,
-4,
49,
-74,
-58,
117,
79,
-71,
33,
98,
118,
-110,
89,
71,
-8,
-84,
31,
122,
-83,
-90,
-111,
88,
75,
8,
21,
-3,
121,
16,
39,
124,
100,
-36,
21,
104,
12,
-114,
-20,
-73,
-33,
49,
-114,
-120,
-21,
103,
48,
85,
-107,
-26,
92,
3,
51,
19,
-50,
-48
] |
Per Curiam.
Appellant James Wilson was convicted by a jury of (1) two counts of theft by deception, Ark. Stat. Ann. § 41-2203 (1) (b) (Repl. 1979); (2) one count of theft of property, Ark. Stat. Ann. § 41-2203 (2) (b) (i) (Repl. 1979); and (3) escape in the second degree, Ark. Stat. Ann. § 41-2811 (Repl. 1979). He was sentenced as a habitual offender with four or more prior felony convictions to a total of thirty-five years imprisonment in the Arkansas Department of Correction. A fine of $1,000 was also assessed. The prison term was ordered served consecutively to a term the appellant was already serving. It is from these convictions that appellant brings this appeal.
Appellant’s motion to proceed pro se at trial was granted. An attorney, C. B. Barksdale, was appointed co-counsel to advise him during trial. Appellant’s request to proceed pro se on appeal was denied, but he was allowed to file a brief, an amended brief and a reply brief. Appellate counsel Barksdale filed a motion to be relieved as counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and a brief stating there is no merit to the appeal. The State concurs that the appeal has no merit.
The theft by deception charges against appellant Wil son grew out of evidence of a deal he made with Clifford Dockins to sell Dockins, a sawmill owner, timber. The timber was to be cut from two parcels of land which appellant claimed to have either leased or purchased. After Dockins paid for the timber, he learned that appellant had not fulfilled his rights under the lease agreement on one piece of property and had never acquired the timber rights. It appears that he had no interest at all in the other parcel. When Dockins demanded his money back, appellant gave him two checks, one for $ 15,000 and one for $ 100. There were no funds on deposit to cover the checks.
The theft of property and escape charges arose after appellant fled the Izard County Jail, taking a portable radio valued at approximately $900.
In accordance with Supreme Court Rule 11 (h) appellant’s appointed counsel has raised several points for possible reversal. Appellant’s lengthy pro se brief raises a number of issues in addition to those argued by counsel, but many of those issues, including appellant’s claim that he was not guilty by reason of insanity, were not raised at trial and will not therefore be considered by this Court for the first time on appeal. See Washington v. State, 276 Ark. 140, 633 S.W.2d 24 (1982); Rode v. State, 274 Ark. 410, 625 S.W.2d 469 (1981); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
Appellant made a pretrial motion to dismiss all charges against him. Appellant claimed that it would be a violation of the constitutional provisions against double jeopardy for him to be tried because he was not delivered from the federal penitentiary to the county authorities within ten days after the extradition order was issued. This appears unsupported by the record. The trial court correctly ruled that appellant’s argument did not merit dismissal of the charges.
Appellant also argued that the theft of property charge should be dismissed for insufficient evidence. Appellant apparently believed that he could not be tried for stealing the police radio since the radio was never recovered. Sufficient evidence to support a charge of theft may exist even though the stolen object cannot be produced at trial. Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979). Since there was evidence to support the charge against appellant, we find no abuse of that discretion here.
Appellant asked the court to order polygraph examinations for him and Clifford Dockins. There is no constitutional right to a polygraph test. Results of polygraph examinations are not admissible unless both parties enter into a written stipulation agreeing that the results will be admissible. State v. Bullock, 262 Ark. 394, 557 S.W.2d 193 (1977). The State declined to enter into such a stipulation, and it was not error for the court to deny appellant’s request.
After appellant was taken into custody, he gave a statement which the county sheriff reduced to writing. The statement was not signed by the appellant. At trial the State sought to have the sheriff testify as to the contents of the statement over the appellant’s objection. At a hearing on whether the sheriff’s testimony was admissible, the appellant testified that he had been given his Miranda rights and that he spoke voluntarily. The court ruled that the statement would not be introduced but the sheriff could use it to refresh his memory. Appellant apparently acquiesced to the ruling as he stated, "That’s good enough.” Even if he had not agreed, however, Rule 612 of the Uniform Rules of Evidence, Ark. Stat. Ann. Vol. 3A (Repl. 1979), provides that a witness may use a writing to refresh his memory.
Without giving a reason for the request, appellant asked that a prosecution witness be allowed to remain in the courtroom during trial. The State objected. Both sides had requested the exclusion of witnesses pursuant to Rule 615 of the Uniform Rules of Evidence, Ark. Stat. Ann. Vol. 3A (Repl. 1979). The trial court therefore was correct in denying the appellant’s motion.
The prosecution amended the information to allege six or more prior felony convictions. Appellant moved for a mistrial on the ground that the court had granted a one-day continuance giving the State an opportunity to amend the information. The granting of a continuance is in the sound discretion of the trial court. Collins v. State, 276 Ark. 62, 632 S.W.2d 418 (1982). There is nothing in the record to indicate that the court erred in allowing the continuance. The fact that the information was amended during that time does not show that appellant was treated unfairly. It is well settled that the information may be amended during trial as long as the nature or degree of the crime charged is not changed. Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982).
The papers which appellant left behind when he escaped from the Izard County jail were turned over to a federal marshal. The marshal delivered one of the papers, a note written by appellant stating the reason for his escape, to the state crime laboratory for analysis of the handwriting. Appellant objected to the introduction of the note into evidence on the ground that the chain of custody had not been established. The purpose of establishing the chain of custody is to prevent the introduction of evidence which is not authentic. Fight v. State, 254 Ark. 927, 497 S.W.2d 262 (1973). To prove authenticity, the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Baughman v. State, 265 Ark. 869, 582 S.W.2d 4 (1979). The chain of custody here was established sufficiently through the testimony of the witnesses who traced the note from the county jail to its introduction at trial.
At the close of the prosecution’s case and in his pro se brief, the appellant challenged the sufficiency of the evidence against him. On appeal this Court views the evidence in the light most favorable to the appellee and affirms if there is any substantial evidence to support the conviction. Substantial evidence is that which is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). The fact some evidence may be circumstantial does not render it insubstantial — the law makes no distinction between direct evidence of a fact and evidence of circumstances from which a fact may be inferred. Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975).
Witnesses established that appellant held himself out to Clifford Dockins as the owner or lessee of timber land. There was testimony that appellant did not in fact have the right to sell the timber and that he gave Dockins two worthless checks when Dockins demanded reimbursement. Appellant also admitted signing the checks. Ark. Stat. Ann. § 41 -2203 (1) (b) (Repl. 1979), provides that a person commits theft of property if he “knowingly obtains the property of another person by deception or by threat, with the purpose of depriving the owner thereof.” The offense is a class B felony if the value of the property is $2,500 or more. It is a class C felony if the value is less than $2,500 but more than $100. The evidence indicated that Dockins paid appellant a total of $15,100 for the timber. It is unclear which parcel of land the $100 check was paid on, but it is apparently the basis of the class C misdemeanor charge. Since Dockins appears to have received $1,200 to $1,400 from the timber from one parcel of land, he was apparently deprived of nearly $14,000. The amount, which exceeds the statutory figure of $2,500, and the testimony regarding appellant’s actions are clearly sufficient to support the class B felony charge. The court offered to dismiss the misdemeanor charge but appellant specifically requested that the charge go to the jury. Under these circumstances, he cannot now complain that the charge should have been dismissed.
We also find sufficient evidence to support appellant’s conviction for escape and theft of the radio. Deputy Sheriff Moser testified that appellant persuaded him to leave his door unlocked so that he could escape. Sheriff Yancey also testified that appellant left the jail after locking Moser in the cell. The Sheriff further testified that the radio was discovered missing after the escape and that appellant offered to return the radio if the charges against him were dropped. A prisoner in the county jail testified that he saw the radio in appellant’s pocket on the night he escaped.
Appellant argues in his brief that the witnesses told conflicting stories and cannot be believed, but the credibility of the witnesses and the resolution of conflicts in testimony are matters for the jury. Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978).
In his brief appellant seeks to introduce evidence not presented to the trial court regarding a checking account at the Bank of Salem. He also asserts that various county officials offered to accept bribes and bargained for testimony favorable to the prosecution. The appellant had ample opportunity to raise these issues at trial and to offer whatever proof he had to support them. He cannot raise new evidence nor new issues on appeal. Washington, supra.
Portions of appellant’s brief are not intelligible, but he appears to allege that he was prejudiced because the jury knew he had a criminal record. If so, he invited the prejudice by enumerating his past convictions during voir dire of the prospective jury. A conviction cannot be reversed for prejudice invited by the appellant. Strode v. State, 259 Ark. 859, 537 S.W.2d 162 (1976).
Appellant next asserts that the trial court gave no jury instructions, or in the alternative, gave inadequate jury instructions. The record shows that the court instructed the jury in both the guilt and sentencing phases. Appellant neither requested any instructions nor objected to those given. He cannot therefore raise the issue on appeal. Eskew & Bolton v. State, 273 Ark. 490, 621 S.W.2d 220 (1981).
Several witnesses testified for the defense, but appellant states that he wished to call others which were not subpoenaed or which were prematurely dismissed. He also contends that the trial court hurried the defense so that witnesses could not be questioned thoroughly. In light of the trial court’s marked patience with appellant, we find the allegations frivolous. Several times the court took steps to see that appellant had full opportunity to subpoena and question witnesses. He does not specify the names of the witnesses he wished to call, but the record shows that appellant himself declined to call certain witnesses when the trial court offered to see that they appeared.
The trial court denied appellant’s motion to have the jury view the jail from which he escaped. Absent an abuse of judicial discretion, which we do not find in this case, a court’s decision to deny a motion to view the crime scene is not grounds for reversal of a conviction. Lee v. State, 229 Ark. 354, 315 S.W.2d 916 (1958), cert. denied, 359 U.S. 930, 79 S.Ct. 616, 3 L.Ed.2d 633 (1959).
Appellant argues that the trial court failed to send evidence into the jury room. Appellant did not request that the jury receive certain exhibits, however, and the court was not required to place the exhibits in the jury room. See Nathan v. State, 235 Ark. 704, 361 S.W.2d 637 (1962).
Finally, appellant seeks to raise ineffective assistance of co-counsel Barksdale as an issue on appeal, but ineffective assistance of counsel cannot be raised for the first time on direct appeal. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). He also asserts that he, himself, should never have been permitted to handle his defense at trial. However, he demanded the right to do so. The trial judge questioned him at length about his competence to act as his own attorney. Appellant repeatedly assured the court that he had the knowledge to defend himself and a strong desire to try the case. In light of appellant’s insistence that he be allowed to act as his counsel and the fact that an appointed attorney acted as legal advisor, we cannot say that the trial court erred in allowing appellant to proceed pro se.
From a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed.
Affirmed. | [
112,
-18,
125,
-68,
26,
-96,
58,
58,
83,
-29,
-92,
83,
-23,
86,
0,
57,
-29,
-51,
116,
105,
-42,
-73,
99,
-29,
121,
-77,
91,
-43,
-68,
111,
-28,
20,
72,
48,
-58,
85,
-58,
-128,
-63,
88,
-18,
5,
-118,
-48,
121,
65,
60,
-17,
0,
11,
117,
-98,
-21,
47,
16,
73,
73,
44,
-53,
44,
80,
-39,
-102,
29,
-33,
54,
-77,
4,
-102,
5,
72,
42,
-104,
-79,
0,
-8,
115,
-74,
-122,
116,
107,
-103,
44,
102,
98,
2,
29,
-17,
-80,
8,
30,
-66,
-99,
-89,
-48,
89,
75,
13,
-97,
-99,
115,
20,
4,
-2,
-16,
-100,
25,
104,
39,
-50,
-112,
-77,
-83,
40,
30,
19,
-13,
33,
48,
97,
-50,
-94,
93,
53,
115,
-101,
-126,
-11
] |
Steele Hays, Justice.
The appellant, Lester Halfacre, was charged with capital murder, it being alleged that he deliberately caused the death of two persons in the course of the same criminal episode. Appellant admitted firing the shots that caused the two deaths, but claimed he acted in self-defense. On September 18, 1981, the appellant was found guilty on a lesser charge of first degree murder and sentenced to 50 years.
I.
The appellant raises three points on appeal. He first argues that the trial court erred in not admitting testimony of specific prior violent acts of the victims which were unknown to the appellant. He argues that the testimony should be admitted under Rule 404 of the Arkansas Rules of Evidence because evidence of a specific prior act is relevant on the issue of who is the aggressor. The trial court had admitted testimony as to the reputation of the two victims, under Rule 404 (a), and also admitted specific prior acts of the victims which the appellant did have knowledge of, as probative of what he reasonably believed, relevant to his plea of self-defense. The trial court excluded the testimony at issue because such evidence was not probative of what the appellant reasonably believed.
The Arkansas Rules of Evidence make it clear that the trial court was correct in its ruling. Testimony pertaining to the victim’s character is admissible under Rule 404 (a) but the method for proving character is specifically limited on direct examination by Rule 405 (a) to “testimony as to reputation or by testimony in the form of an opinion”. Rule 405 (b), allowing specific acts, can only be used if necessary to prove “an essential element of... the defense.” The same question arose in McClellan v. State, 264 Ark. 223, 570 S.W.2d 278 (1978) where we affirmed the trial court’s exclusion of similar evidence. We found the ruling conformed to the Rules of Evidence and that the character of the victim is not an essential element in the defense of self-defense:
In the case at bar the question, then, is whether Sitz’s character as an aggressive person was “an essential element” of McClellan’s defense of self-defense. Obviously it was not. One might plead self-defense after having killed the most gentle soul who ever lived. In such a situation the decedent’s character as a possible aggressor is being used circumstantially, not as a direct substantive issue in the case. The trial judge was therefore correct in disallowing the proffered proof of a specific instance of aggression on the part of the decedent.
McClellan at 227.
The appellant cites in support of his argument, our recent decision in Smith v. State, 273 Ark. 47, 616 S.W.2d 14 (1981) where the following language was used:
Evidence of a victim’s violent character, including evidence of specific violent acts, is admissible where a claim of justification is raised. Such evidence is rele vant to the issue of who was the aggressor and whether or not the accused reasonably believed he was in danger of suffering unlawful deadly physical force. Smith at 49.
Appellant asks that should we find Smith as holding that evidence of prior acts of aggression of the victim be offered by the defendant on the question of who was the aggressor, that we should so rule and follow other jurisdictions that have adopted such a rule.
We disagree with appellant on both points.
Although the language itself in Smith is open to interpretation, the facts in Smith were significantly different from the facts in this case as to leave no doubt as to the meaning of those words. In Smith, the trial court had excluded not only evidence of incidents defendant knew of but also incidents directed against the defendant. In sharp contrast are the specific acts that appellant in this case proffered that not only did not involve the appellant but were incidents that he had no knowledge of. Given the facts in Smith, the plain language of the rules and our recent decision in McClellan, supra, we find no reason to give Smith the more expansive reading that appellant suggests.
We find appellant’s suggestion that we follow the lead of other jurisdictions that have adopted the interpretation he advocates, to have no merit. The cases that appellant cites involve the issue of excluding evidence about the victim’s character that was unknown to the defendant. Admitting character evidence by testimony of specific acts is not in issue. The courts in those cases ruled that the evidence could come in but in the form of reputation. See Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977).
Appellant also insists it was error to deny him the right to corroborate those specific instances of violence for which a foundation had been laid by showing the event to have been communicated to appellant. We disagree. In determining the reasonableness of appellant’s plea of self-defense, the relevant issue was not whether Doyle Ham monds and Terry Brooks had started fights, but whether appellant was aware of such incidents. Thus, the trial judge did not err in refusing to permit the corroboration.
II.
Appellant’s second argument alleges the trial court erred in excluding evidence pertaining to prior specific acts of relatives of one of the victims against the appellant or his brother, as it was relevant to the appellant’s state of mind and the reasonableness of his fears of the victim. The trial court excluded it under Rule 403 of the Arkansas Rules of Evidence.
We will not overturn a trial court’s relevancy ruling absent a showing of abuse of discretion. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). In this case there was a substantial amount of evidence admitted that was pertinent to the victim’s character, by testimony of the victim’s reputation and of the victim’s specific prior acts — not only those involving the appellant, but also those involving the victim and third parties. In addition, the trial court did admit some evidence that related to the appellant’s fear of the Hammonds family and their reputation. It is within the trial court’s discretion if the evidence is cumulative or could lead to confusion of the jury, to exclude such evidence. The facts in this case could support such a finding and we find no abuse of discretion.
III.
In his last point, the appellant argues that the trial court erred in refusing to grant a continuance because the prosecution had not filed a written response to the appellant’s motion. Appellant states that the defense counsel participated in the open file policy of the prosecutor, but argues that there is an inherent disadvantage to the defense when the state simply follows an open file policy rather than respond in writing.
We find no merit in the appellant’s argument as the prosecution complied fully with the discovery requirements of Rule 17.2 (b) of the Arkansas Rules of Criminal Procedure which states:
(b) The prosecuting attorney may perform these obligations in any manner mutually agreeable to himself and defense counsel or by:
(i) notifying defense counsel that material and information, described in general terms, may be inspected, obtained, tested, copied, recorded or photographed, during specified reasonable times; or;
(ii) making available to defense counsel at a time specified such material and information, and suitable facilities and arrangements for inspection, testing, copying, recording or photographing of such material and information.
Also, appellant acknowledges in his argument that he cannot point to any particular incident that occurred during the trial that prejudiced his defense in any particular manner. A similar argument was raised and answered in Cardwell v. State, 264 Ark. 862, 575 S.W.2d 682 (1979) and we find no foundation for reversal in the facts presented.
Ark. Stat. Ann. § 41-507 (1) (Repl. 1977). Justification. Use of deadly physical force in defense of a person. (1) A person is justified in using deadly physical force upon another person if he reasonably believes that the other person is: (a) committing or about to commit a felony involving force or violence; or (b) using or about to use unlawful deadly physical force. | [
48,
-21,
-24,
125,
9,
96,
58,
56,
82,
-93,
96,
115,
47,
-33,
5,
107,
107,
111,
85,
41,
68,
-73,
7,
65,
-74,
-13,
-87,
-43,
59,
-33,
-4,
-68,
78,
96,
-54,
85,
-30,
42,
-123,
88,
-114,
8,
-80,
114,
-10,
80,
44,
55,
116,
15,
49,
-66,
-29,
34,
23,
-51,
-55,
108,
75,
-66,
64,
0,
10,
-115,
-51,
16,
-77,
6,
-66,
5,
80,
60,
88,
49,
9,
104,
51,
-74,
-122,
-60,
105,
-104,
12,
98,
99,
25,
28,
-18,
-72,
-127,
46,
126,
-115,
-89,
88,
73,
73,
109,
-106,
-3,
107,
20,
6,
-8,
-4,
-35,
92,
108,
11,
-57,
-106,
-95,
-119,
116,
-110,
-117,
-21,
5,
36,
117,
-51,
-30,
92,
87,
-39,
-45,
-122,
-44
] |
Frank Holt, Justice.
The primary issue in this case is whether the double jeopardy rights of the appellants will be violated if they are required to stand trial following a mistrial due to a "hung jury.” At 4:15 p.m., after approximately 50 minutes of deliberation, the jury foreman returned to the courtroom and reported to the court that the jury had first voted 7 to 5 for acquittal and then twice voted 9 to 3 for acquittal. He advised the court that one j uror had ‘ ‘said that there was no way that anything that anybody could say that would make him say anything except guilty.” The foreman stated that he was of the opinion that if the jury voted several more times the vote would not change. Thereupon, the court had the jury brought into the courtroom where he told them that the foreman had reported it was “hopelessly deadlocked”; the court advised it would be necessary to have a retrial before another jury if they were unable to agree on a verdict; that he had a "booster” instruction which would urge them to reach a verdict to avoid the expense of a retrial; however, due to the explanation conveyed to him by the foreman, he felt it would be "a waste of your time for you to consider to deliberate or to continue and deliberate.” He then declared a mistrial. The court’s formal order reflects that appellants’ attorney objected, requested further deliberation and the giving of the "Allen instruction” if subsequent efforts to reach a verdict were unsuccessful.
Before the retrial date, the appellants moved to dismiss the information on the ground that a retrial would violate the double jeopardy clause of Art. 2, § 8, Constitution of Arkansas (1874), and the Fifth Amendment to the United States Constituton. The motion was denied — hence this appeal which seeks to prohibit a retrial. The denial of a plea of double jeopardy is a final and appealable order. Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959).
Appellants first contend that the trial court erred in declaring a mistrial because there was insufficient showing of "manifest necessity.” The basic principle was articulated in United States v. Perez, 22 U.S. (9 Wheat) 579 (1824) as follows:
We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a j ury from giving any verdict, whenever in their opinion, taking all circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere.
The statutory authority for discharging the jury is found in Ark. Stat. Ann. § 43-2140 (Repl. 1977), which provides in pertinent part:
If... after being kept together such a length of time as the court deems proper, they do not agree in a verdict, and it satisfactorily appears that there is no probability they can agree, the court may discharge them. (Italics supplied.)
This statute lays down essentially the same rule as did the ABA Standard for Criminal Justice (2nd. Ed. 1980) § 15 - 4.4 (c), which states:
The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement. (Italics supplied.)
No mechanical formula for determining when discharge of the jury is proper is contemplated by the statute or the ABA Standards. The commentary to § 15.135 states in pertinent part:
Instead the real question is whether the jury was required to deliberate an unreasonable length of time or was threatened with the prospect of such unreasonably lengthy deliberations .... The reasonableness of the deliberation period depends on such factors as the length of the trial, the nature or complexity of the case, the volume and nature of the evidence, the presence of multiple counts or multiple defendants, and the jurors’ statements to the court concerning the probability of agreement. (Italics supplied.)
This was a short trial. All of the proceedings, which included selection of the jury, arguments of counsel, presenting evidence, giving instructions, including an hour and a half lunch break, were completed and the case was submitted to the jury by 3:25 p.m. of the same day. This case was a simple charge of theft of property, Ark. Stat. Ann. § 41-2203 (Repl. 1977), which did not involve complicated facts nor require complex instructions that would cause the jury unusual difficulty. The testimony of the state’s witnesses was undisputed. The only question for the jury was whether to infer guilt from the undisputed circumstantial evidence. Each defendant was charged with only one count. The charge and the evidence were the same with respect to each. The statement of the jury foreman certainly indicated that there was no reasonable probability of agreement. We cannot say, upon consideration of all the relevant factors, that the trial court, which was in a better position than we to evaluate the situation, abused its discretion when it declared a mistrial.
Appellants also argue and cite cases which they say support the proposition that the trial court is required to question each juror whenever the jury has not spontaneously claimed a deadlock. Here, however, the record indicates that the jury foreman returned to the courtroom and spontaneously reported to the court the difficulty the jury was having. Further, as indicated, the court then had the jury return to the courtroom where he explained to it the information conveyed by the foreman that the jury was hopelessly deadlocked. No juror objected nor disagreed with the foreman’s report.
Appellants next contend that the evidence is insufficient, as a matter of law, to support a conviction and, therefore, it would constitute double jeopardy to permit a retrial. The state responds that in the absence of a final judgment the issue of the sufficiency of the evidence is not properly before the court. Suffice it to say that we consider the evidence sufficient. At approximately 1 a.m. it was discovered that the signal system on the railroad tracks was malfunctioning. An employee of the railroad and a deputy sheriff drove to the scene to investigate. As they approached a vehicle was observed with its headlights on leaving the area. This vehicle stopped and before the headlights were turned off they saw some activity about the truck. In about five minutes the headlights on the truck came on and it then approached the investigating officers who stopped it. The appellants were the occupants. The railroad employee went to the scene where the vehicle first stopped and found beside the road copper wire which had been cut from the railroad premises. This wire was used to control the signals. Laboratory tests of appellants’ clothing and gloves showed traces of copper. Certainly, this evidence, when viewed most favorably to the appellee as we must do on appeal, consti tutes substantial evidence. Cooper v. State, 275 Ark. 207, 628 S.W.2d 324 (1982).
In a subordinate argument, appellants assert that there is no evidence of the value of the property by any witness qualified to so testify. As abstracted, there was no objection made to the testimony of the value witness, a railroad employee. The record, however, reflects that the trial court sustained appellants’ objection to the railroad employee’s testimony that a stock catalogue, with which the witness was familiar, indicated the value of the wire. Following a recess, the stock catalogue, customarily used by the railroad for replenishment purposes, was acquired and then this witness was permitted to state the catalogue price without any further objection. We find no error. See Uniform Rules of Evidence, Rule 803 (17).
Affirmed. | [
112,
-18,
-91,
62,
8,
64,
62,
28,
66,
98,
38,
83,
45,
-45,
84,
121,
51,
111,
117,
-23,
90,
-89,
23,
83,
-29,
-13,
-63,
-57,
63,
-21,
-82,
-7,
76,
48,
-62,
-43,
36,
106,
-59,
86,
-90,
13,
25,
100,
91,
26,
52,
102,
68,
11,
37,
-98,
-29,
42,
27,
-62,
73,
40,
75,
60,
64,
25,
-104,
-121,
-17,
20,
-125,
-90,
-114,
7,
120,
46,
-36,
16,
16,
-8,
115,
-106,
2,
84,
105,
27,
12,
98,
96,
1,
21,
-21,
-72,
-87,
54,
63,
-113,
-121,
-112,
64,
75,
12,
-74,
-35,
123,
54,
14,
-2,
-17,
-35,
93,
124,
6,
-34,
-78,
-77,
-113,
63,
-98,
106,
-61,
33,
-112,
117,
-52,
-30,
92,
71,
83,
-101,
-113,
-108
] |
Darrell Hickman, Justice.
Donnie Brewer was convicted of first degree murder and aggravated robbery and received a thirty year sentence for the murder and fifteen years for the aggravated robbery, to be served consecutively.
The only question on appeal is whether the convictions for aggravated robbery and first degree murder violate the prohibition against double jeopardy in Ark. Stat. Ann. § 41-105 (Repl. 1977). The aggravated robbery in this case was a lesser included offense of first degree murder and Brewer could not be convicted and sentenced for both crimes. Therefore, the conviction for aggravated robbery is set aside.
Brewer was one of three men charged with the robbery of the combination grocery store and post office in Charlotte, Arkansas on December 14, 1978, and the death of Morris Lillard in connection with that robbery. David Weaver, one of the defendants, pleaded guilty and was sentenced to twenty-four years in prison. He testified against Brewer and according to his testimony Brewer fired the weapon that killed Mr. Lillard. Ronnie Brewer, the appellant’s brother, was convicted of robbery but acquitted of murder. See Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981).
The only question concerned in this appeal involves the issue of double jeopardy. Ark. Stat. Ann. § 41-105 (Repl. 1977) provides:
(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other as defined in subsection (2);. . .
(2). . . An offense is so included if:
(a) it is established by proof of the same or less than all of the elements required to establish the commission of the offense charged; . . .
There is no doubt in this case that the conviction and sentence of Brewer for the second offense violated this provision of Arkansas law. See Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981); and Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982). Therefore, the conviction and sentence for aggravated robbery are set aside. The conviction and sentence for first degree murder are affirmed. Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981).
Affirmed as modified. | [
80,
-23,
-71,
-66,
25,
96,
11,
-68,
50,
-125,
100,
26,
-23,
-105,
5,
121,
51,
77,
-35,
89,
-107,
-89,
55,
96,
-46,
-69,
-109,
71,
-77,
79,
-84,
-28,
28,
114,
66,
89,
102,
-54,
-27,
-40,
-82,
-127,
41,
112,
83,
0,
48,
46,
68,
11,
49,
-116,
-21,
42,
22,
-50,
73,
44,
89,
47,
114,
59,
-56,
13,
44,
21,
-93,
-89,
-71,
23,
-46,
52,
-100,
113,
33,
-24,
115,
-126,
-122,
84,
111,
25,
-116,
98,
102,
36,
17,
-49,
-92,
-96,
39,
63,
-101,
-121,
-104,
81,
73,
13,
-68,
-106,
59,
-73,
2,
-2,
-6,
78,
117,
124,
4,
-114,
-48,
-79,
-55,
44,
-42,
123,
-53,
39,
48,
117,
-49,
-30,
85,
86,
112,
27,
22,
-43
] |
John I. Purtle, Justice.
James Smith was a serviceman employed by Arkansas Power and Light Company (AP&L) on May 19, 1977. On that day he was working 30 feet off the ground on a pole, wearing a lineman’s belt manufactured by W. M. Bashlin Company. The belt broke while Smith was engaged in a hazardous practice commonly known as double D-ringing. He fell to the ground injuring his spine and paralyzing him from the waist down. A St. Francis County j ury returned a verdict finding that James Smith and his wife had suffered damages in the amount of $1,000,000. The jury apportioned the negligence at 80% to Bashlin and 20% to Smith. The distributor of the safety belt, J. L. Matthews Co., Inc., was a defendant along with Bashlin but the jury apportioned 0% responsibility to Matthews. Bashlin cross-complained against AP&L, Smith’s employer, and Eddie Wells, Smith’s supervisor. Before trial the court granted both AP&L and Wells a summary judgment based upon the exclusive remedy of the Workers’ Compensation Act. The verdict was by interrogatories. One interrogatory found Bashlin responsible for 80% of Smith’s damages. One interrogatory found the Matthews company was not negligent. Another interrogatory found that Bashlin did not supply the safety belt in “a defective condition which rendered it unreasonably dangerous . . . [which] condition was a proximate cause of the occurrence.” Still another interrogatory found that Bashlin was guilty of negligence which was the proximate cause of the occurrence. Finally, an interrogatory found that James Smith assumed the risk of the occurrence. The jury apportioned the responsibility for the occurrence and the resulting inj uries and damages at 80% to Bashlin, 20% to Smith and 0% to J. L. Matthews Co. The trial court reserved a ruling on appellant’s motion seeking credit against the judgment for $200,000 which AP&L had paid to Smith under the workers’ compensation agreement, In view of our ruling this issue is now moot.
Bashlin appeals from the dismissal of AP&L as a third party defendant, the judgment against Bashlin, and the denial of its post-trial motion for credit on its j udgment. We uphold the judgment against Bashlin.
The appellant sets forth six arguments for reversal which are as follows: (I) the finding by the jury that Bashlin did not manufacture the belt in a defective condition rendered the judgment against them improper; (II) the finding by the jury that the injured employee assumed the risk bars his recovery of any sums from the appellant; (III) AP&L’s negligence constituted an independent intervening cause of the accident which bars recovery; (IV) the trial court erred in refusing to instruct the jury that any amount awarded the plaintiff would not be subject to income tax; (V) the trial court erred in dismissing appellant’s third party complaint against AP&L for indemnity; and, (VI) the verdict was excessive.
This is a products liability suit against the manufacturer (Bashlin) and the distributor (Matthews) of a lineman’s belt which was manufactured in 1964. Bashlin filed a third party complaint against Smith’s employer, AP&L. The facts are not in material dispute. Bashlin manufactured the belt in 1964 and sometime in, or prior to, 1966, AP&L purchased the belt from Matthews and provided it to Smith. The belt was made primarily of leather but included nylon reinforcing on the saddle portion of the belt. There were D-rings on each side of the body belt. A separate safety belt snapped into the D-rings and looped around a light pole or some other object to be climbed. As described above, the weight of the user would be on the back side or saddle of the body belt, between the D-rings, and upon the looped safety belt. In this position, a lineman could climb up a pole using gaffs on his shoes with the belts to prevent him from falling. The portion of the belt between the D-rings, on the front side where the belt is buckled to adjust to the size of the wearer, has a smaller leather strip with holes for the buckle which is commonly called the “tongue.”
Double D-ringing was a practice used by the injured employee and by a lot of other people. The practice consists of snapping both ends of the safety belt into a single D-ring on the body belt. Double D-ringing is used for the purpose of providing the lineman with a longer reach. It was recognized that double D-ringing was not generally considered safe and Smith had acknowledged it was not a safe practice although he continued to utilize it. Double D-ringing was not considered safe because it placed the user in a position where his footing was more unstable, sometimes having only one foot against a pole thereby creating a situation where he was more apt to fall. It also increased the force of one’s weight against the tongue portion of the body belt.
The employer, AP&L, had warned Smith that double D-ringing was dangerous. However, they recognized that this was no defense to them under the Workers’ Compensation Act. Accordingly, they made a settlement with Smith, who is now a paraplegic, for the sum of $200,000. AP&L waived any right of subrogation against the manufacturer and the distributor. The trial court ruled, as a matter of law, that AP&L and Smith’s supervisor were protected from liability by the exclusive remedy of workers’ compensation.
Although it will lengthen the opinion, it is necessary to a proper understanding of the pertinent interrogatories that they be set out in full:
INTERROGATORY NO. 1:
Do you find from a preponderance of the evidence that W. M. Bashlin Company was guilty of negligence which was a proximate cause of the occurrence?
ANSWER: Yes or No Yes
INTERROGATORY NO. 2:
Do you find from a preponderance of the evidence that the lineman’s body belt involved in the occurrence was supplied by W. M. Bashlin Company in a defective condition which rendered it unreasonably dangerous and that the defective condition was a proximate cause of the occurrence?
ANSWER: Yes or No No
INTERROGATORY NO. 3:
Do you find from a preponderance of the evidence that the lineman’s body belt involved in the occurrence was sold by J. L. Matthews Company, Inc., in a defective condition which rendered it unreasonably dangerous and that the defective condition was a proximate cause of the occurrence?
ANSWER: Yes or No No
INTERROGATORY NO. 4:
Do you find from a preponderance of the evidence that James Smith was guilty of fault which was a proximate cause of the occurrence?
ANSWER: Yes or No No
INTERROGATORY NO. 5:
Do you find from a preponderance of the evidence that James Smith assumed the risk of the occurrence?
ANSWER: Yes or No Yes.
INTERROGATORY NO. 6:
Using 100% to represent the total responsibility for the occurrence and any injuries or damages resulting from it, apportion the responsibility among the parties whom you find to be responsible:
W. M. Bashlin Company 80%
J. L. Matthews Company, Inc. 0%
James Smith 20%
TOTAL 100%
INTERROGATORY NO. 7:
State the amount of any damages which you find from a preponderance of the evidence were sustained by James Smith as a result of the occurrence.
ANSWER: $960,000.00
INTERROGATORY NO. 8:
State the amount of any damages which you find from a preponderance of the evidence were sustained by Janet Smith as a result of the occurrence.
ANSWER: $40,000.00
I.
THE FINDING BY THE JURY THAT BASHLIN DID NOT MANUFACTURE THE BELT IN A DEFECTIVE CONDITION RENDERED THE JUDGMENT AGAINST THEM IMPROPER.
The first point argued by appellant is that the jury’s specific finding that the product (the body belt) was not supplied or sold in a defective condition which proximately caused the accident is a bar to holding the manufacturer liable under a negligence theory. The jury was given instruction No. 18 (AMI 1012) which states that the appellees asserted two grounds for recovery: first, that a defective lineman’s body belt was manufactured or sold by W. M. Bashlin Company; and, second, that there was negligence on the part of W. M. Bashlin Company. The court then instructed the jury on the two separate causes of action. The finding by the jury that Bashlin did not supply the lineman’s body belt in a defective condition does not preclude the finding that Bashlin was negligent in some other respect. The jury may have found that Bashlin was negligent in failing to warn the plaintiff on the use of the belt, in failing to warn about double D-ringing, or that the manufacturer became aware that the belt tongue should not have been constructed of leather alone and should therefore have recalled the product. While it is mere speculation as to what the jury might have based a finding of negligence on, it is obvious from the interrogatories that they did make a specific finding of liability against the appellee. We have recognized that more than one theory of liability may properly be used in matters involving products liability. AMI 1012 provides first for a finding of a defect in the product and second that there was negligence on the part of the supplier. The plaintiff need not bear the burden of proving both theories of liability, it is enough that he prove either. Sterner v. U. S. Plywood-Champion Paper, Inc., 519 F.2d 1352 (8th Cir. 1975). We are aware that the holding in Lindsay v. McDonnell-Douglas Aircraft Corp., 460 F.2d 631 (8th Cir. 1972), might seem contrary, however the present case is distinguishable on its facts. The holding in Lindsay is to the effect that there can be no manufacturer negligence relating to product design which did not exist as a defect when the manufacturer parted with possession. The court there recognized that an exception might arise where there exists a subsequent duty to warn or to recall. As previously stated, the jury had sufficient facts from which to find that Bashlin breached this duty. If it be considered that Sterner and Lindsay hold two opposite theories, we think Sterner is correct because it is the later pronouncement on the subject by the same court. We do not hold that a manufacturer must produce a product which will last forever. However, instruction No. 25, which was given to the jury in this case, states: “Anticipated life of a product is the period over which the product may reasonably be expected to be useful to the user as determined by the jury.” It is obvious the jury determined that the reasonably expected useful life of this belt was greater than that to which it had been put. Therefore, there was no error in allowing the jury to reach a verdict for appellees Smith using either of two theories presented to them in interrogatories.
II.
THE FINDING BY THE JURY THAT THE INJURED EMPLOYEE ASSUMED THE RISK BARS HIS RECOVERY OF ANY SUMS FROM THE APPELLANT.
Appellant contends that a jury finding that Smith assumed the risk of the occurrence would bar Smith’s recovery against Bashlin. It must be remembered that the trial court instructed the jury that they must consider each interrogatory as a separate verdict. At first glance it might appear that the interrogatory finding that Bashlin did not supply the belt in a defective condition and the finding in another interrogatory that Smith assumed the risk cannot be reconciled with interrogatory No. 6 which apportioned Bashlin 80% and Smith 20% responsible for the occurrence. The finding of the jury was to the effect that James Smith assumed 20% of the responsibility for the risk of the occurrence. We have previously held that the assumption of risk was a complete bar to a recovery as either a matter of law or fact. Capps v. McCarley & Co., 260 Ark. 839, 544 S.W.2d 850 (1976); McDonald v. Hickman, 252 Ark. 300, 478 S.W.2d 753 (1972). AMI 612 defines assumption of risk as considered by the jury. The comment following AMI 612 [Revised] explains: “Conduct which constitutes assumption of risk is now, like negligence, embraced within the concept of ‘fault’ and therefore it is to be compared with any fault on the part of those parties from whom recovery is sought.’’ Ark. Stat. Ann. § 27-1764 (Repl. 1979) states:
In all actions for damages for personal injuries or wrongful death or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.
It is clear that the legislature intended assumption of the risk to be viewed as an element of comparative fault. See Ark. Stat. Ann. § 27-1763. We do not agree with the appellant’s argument that Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981), or Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980), hold that assumption of risk is a complete bar. It would be a complete bar if the injured party assumed 50% or more of the risk of the occurrence. It must be considered by the jury as an element of fault.
III.
AP&L’S NEGLIGENCE CONSTITUTED AN INDEPENDENT INTERVENING CAUSE OF THE ACCIDENT WHICH BARS RECOVERY.
The matter of intervening causes which bar an action against an original tortfeasor has been considered by this court many times. Appellant urges that we hold in accordance with the argument in the case of Cowart, Adm’x. v. Jones, 250 Ark. 881, 467 S.W.2d 710 (1971). The facts are somewhat analogous in the present case and the Cowart case but there is a distinct difference. In Cowart this court upheld the trial court’s finding that an independent intervening cause barred the recovery of an employee who was fatally injured while working around a construction crane which was in a defective condition. The trial court in the Cowart case directed a verdict against the plaintiff at the conclusion of the trial. We affirmed the decision and stated that the crane had been obtained by decedent’s employer in a dangerous condition in that it did not have the necessary safety devices. The essence of the holding in Cowart was that when the employer obtained possession of the crane it was a dangerous instrumentality and the lack of safety devices was noticeable and obvious. When the employer continued to use the instrument with the full knowledge of its dangerous aspect, then that constituted an independent intervening cause. In affirming the trial court’s judgment in the Cowart case we quoted with approval the language of the trial court:
The most important and persuasive reason why this court is directing a verdict for the defendant Casey Jones is that there can be no question, I rule as a matter of law that representatives in high capacity in Bechtel Corporation admittedly knew that this crane was received from whatever source without the safety devices. That they used it for a period of time. * * * But in any event, charged with that knowledge, in my opinion the law is clear that there was a very definite intervening cause that we cannot attribute to Casey Jones.
We have attempted to define intervening negligence which bars recovery of the original wrongdoer. In the case of Gatlin v. Cooper Tire & Rubber Co., 252 Ark. 839, 481 S.W.2d 338 (1972), we held that negligence of a third party is no defense unless it is the sole proximate cause of the injury and/or damages sustained and a plaintiff may recover from the original defendant if the negligence of such defendant was a contributing factor. Appellant also relies upon our holding in Larson Machine, Inc. v. Wallace, supra. In Larson we upheld the doctrine that an independent intervening cause excludes liability for the earlier negligent acts of another party. In fact, we held that there was an independent intervening cause which shielded the manufacturer from the acts of the dealer who had rented the fertilizer spreader to the injured party. We find a substantial distinction between the facts in Larson and those in the present case. In Larson the machine left the factory with a shield to protect the power take-off shaft. The shield was intended to prevent injuries such as the one which subsequently occurred. The dealer who obtained the machine and rented it out did so with the full knowledge that the protecting shield had been removed and the power take-off gears were exposed. This was an obvious defect and dangerous condition which was known by the dealer who rented it out and the obviously negligent action on the part of the dealer was held to be an independent intervening cause. In the recent opinion of Moody Equipment & Supply Co. v. Union National Bank, 273 Ark. 319, 619 S.W.2d 637 (1981), we dealt with whether the negligence of the original defendant could be considered when the facts conclusively established negligence on the part of the person who obtained the equipment from the original defendant. This was a case where a construction crane was rented in a defective condition. We considered the matter under our strict liability statute, Ark. Stat. Ann. § 85-2-318.2 (Supp. 1979). In Moody the trial court set aside a verdict which had released the original seller of the crane from liability. In affirming that action we adhered to the theory that the crane was sold in a defective condition which was reasonably foreseeable in the ordinary course of the intended use of the crane. We stated that the later acts of negligence by third persons became concurrent rather than superseding causes of action. The defects on the crane in the Moody case were less obvious than in Cowart, Adm’x. v. Jones, supra. In any event, in Moody the holding was that there was concurring negligence on the part of the seller and the user of the equipment.
The appellant’s allegations against AP&L in the third party complaint were primarily AP&L failed to properly instruct in safety rules and failed to inspect the equipment or failed to enforce safety rules. None of these acts, if proven, would constitute the obvious defect type negligence which we held in some cases barred a recovery against the original actor. The most that can be said for the third party complaint against AP&L is that it alleged concurrent causes of action. In any event, the matter was presented to the jury as the court’s instruction No. 11 (AMI 503) as follows:
W. M. Bashlin Company and J. L. Matthews Company, Inc. contend and have the burden of proving that following any act or omission on their part, an event intervened which in itself caused any damage completely independent of their conduct. If you so find, then their act or omission was not a proximate cause of any damage.
The foregoing instruction placed the matter of independent intervening cause squarely before the jury. This is all that appellant could expect under the facts of this case. It may be said that the general rule is that the intervening act or omission of a third person is not a superseding cause when the original actor’s negligent conduct is a substantial factor in bringing about the injury. If the intervening act is a normal response to the situation created by the original actor’s conduct, then there is no intervening cause. When the negligent acts of the parties are concurrent, there is no intervening cause which bars recovery against the original actor. Larson Machine, Inc. v. Wallace, supra.
IV.
THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT ANY AMOUNT AWARDED THE PLAINTIFF WOULD NOT BE SUBJECT TO INCOME TAX.
The appellant questions the correctness of the court’s refusal to give certain instructions which were proffered by the appellant as numbers 35 through 41. None of these are contained in the AMI book. Without discussing each one in detail we state that we agree with the appellees’ argument that the proffered instructions were generally covered by the instructions which were given by the court. Proffered instruction No. 38 states:
The mere fact that a person is injured or that a product failed while it is being used is not sufficient to show that the product was defective and unreasonably dangerous. Furthermore, the mere fact that a climbing belt failed is not sufficient, standing alone, to establish that it was defective or unreasonablv dangerous. Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 289 (5th Cir. 1975).
The court gave instruction No. 13 (AMI 603) which reads as follows:
The fact that an injury occurred is not, of itself, evidence of negligence on the part of anyone.
It is apparent that proffered instruction No. 38 was simply an enlargement of AMI 603. We think the trial court was correct in stating the matter was covered by other instructions and rejecting the one presented by appellant. Except for proffered instruction No. 41, the other rejected instructions seemed to fit within the framework of the above-stated reasoning. In any event, appellant did not abstract the instructions given which they thought needed further clarification for the benefit of the jury. It is the duty of the judge to instruct the jury and each party to the proceeding has the right to have the jury instructed upon the law of the case with clarity and in such a manner as to leave no grounds for misrepresentation or mistake. Beevers, Adm’x. v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967). It is possible that one or more of the proffered instructions could have been of some assistance to the jury but certainly it has not been shown that the jury was not presented the issues in a clear manner. We have reviewed the instructions, abstracted by appellees, and cannot say that the matters considered in the proffered instructions were not covered by those given by the court. Instruction No. 41 regarding the tax consequences of a monetary judgment is the exception because there was no effort by the plaintiffs’ counsel or the court to present an instruction on the taxability of an award. Neither is there an instruction on this matter among the instructions set forth in the AMI Book of Civil Instructions. We have not been referred to any case in Arkansas which upholds the presentation of the instruction here in question. The rejection of this type of instruction would preserve the collateral source rule and prevent the matter of the cost of collection to the claiming party from being considered by the jury. At this time we are comfortable in holding that an instruction to the effect that a personal injury award is untaxable to the receiving party is not proper.
V.
THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S THIRD PARTY COMPLAINT AGAINST AP&L FOR INDEMNITY.
This argument deals with the allegation that the court erred in dismissing AP&L as a third party defendant. The third party complaint alleged that AP&L was the principal negligent party and that appellant’s activities were of a passive nature. The third party complaint alleged that the relationship between AP&L and Bashlin was such that it was the duty of AP&L to indemnify Bashlin. However, the specific allegations were entirely in the nature of a tort and generally included the same allegations as Smith made against Bashlin. The trial court dismissed AP&L from the suit before the trial commenced. Appellant relies heavily upon the case of Oaklawn Jockey Club, Inc. v. Pickens-Bond, Construction Co., 251 Ark. 1100, 477 S.W.2d 477 (1972). The forerunner of Oaklawn, and a case which must be read alongside it, is C & L Rural Cooperative Corp. v. Kincaid, 221 Ark. 450, 256 S.W.2d 337 (1953). C & L was based upon an expressed indemnity agreement wherein the contractor (employer) agreed to hold the owner harmless in case of damages caused by their negligence. The following language from C & L clearly shows the action was not one between joint tortfeasors but rather it was based upon the theory of indemnity: The Cir L opinion is somewhat confusing because it stated that it relied upon Baltimore Transit Co. v. State, 183 Md. 674, 39 A.2d 858 (1944), which interpreted and applied the provisions of Maryland’s Workmen’s Compensation Law and their Uniform Tortfeasors Act. The Baltimore Transit case held that a third party defendant could not bring in the employer for contribution on the liability of the original defendant. The holding was clearly to the effect that the compensation law limited the employer’s liability as well as the employee’s recovery. The court held that “ . . . the employer should not be held liable indirectly in an amount that could not be recovered directly.” However, the subject of joint tortfeasors was not before the court. It still does not appear that Arkansas has considered the question of whether an employer might be liable to a manufacturer or supplier upon a joint tortfeasor theory. Therefore, we must examine the authorities in other jurisdictions to determine if such holdings are so persuasive as to cause us to follow them.
The present suit by appellants is based not on tort, but an indemnity contract that C & L had with Delta (contractor), which contract, as indicated, provided: “The Contractor (Delta) shall hold the owner (C & L) harmless from any and all claim for inj uries to persons or for damages to property happening by reason of any negligence on the part of the Contractor or any of the Contractor’s agents or employees during the control by the Contractor of the Project or any part thereof.”
The matter of contribution or indemnity from a negligent employer to a third party tortfeasor is a complex one. There has evolved a theory known as the Murray-Dawson Rule. This rule was founded upon the reasoning set forth in Murray v. United States, 405 F.2d 1361 (D.C. Cir. 1968), and Dawson v. Contractors Transport Corp., 467 F.2d 727 (D.C. Cir. 1972). The Murray-Dawson Rule clearly modifies the former exclusive remedy of workers’ compensation which prevented a third party from receiving contribution or indemnity from a joint tortfeasor employer. This rule allows a credit to the original tortfeasor for the amount that it would have been entitled to receive had the employer been held jointly or severally liable with the third party. At common law there was no contribution among joint tortfeasors. Arkansas has adopted a system which allows apportionment of the damages between multiple tortfeasors. The Uniform Contribution Among Tortfeasors Act, Ark. Stat. Ann. § 34-1001 et seq. (Repl. 1962), defines “joint tortfeasors” to mean two or more persons jointly or severally liable in tort for the same injury to person or property. Contribution is available to a tortfeasor regardless of whether the claim has been reduced to judgment so long as the settlement or judgment with the injured person does not extinguish the liability of the other joint tortfeasors. Ark. Stat. Ann. § 34-1002. There is no question but that the Workers’ Compensation Act is the exclusive remedy between an employer and an employee with certain exceptions which we will not set out and which are not involved in this case. However, the act does not specifically state that the employer is immune from a claim by a third party. This question was not decided in C & L Rural Cooperative Corp. v. Kincaid, supra, or Oaklawn Jockey Club, Inc. v. Pickens-Bond Construction Co., supra.
Another rule or exception between contributing joint tortfeasors is known as the Pennsylvania Rule. This rule allows a third party to recover limited contribution from a concurrently negligent employer up to the amount of workers’ compensation benefits paid to the employee or his representative. This rule had its genesis in the case of Maio v. Fahs, 339 Pa. 180, 14 A.2d 105 (1950). However, we will not discuss this rule or the Murray-Dawson Rule further in view of our holding in the present case. Both are exceptions to the rule which holds workers’ compensation liability is exclusive as to all claims against the employer.
The Uniform Contribution Among Tortfeasors Act and the Workers’ Compensation Act are both involved in this action. One of them must give because both cannot prevail in the matter before us. Therefore, we hold that it is in the interest of public policy and in keeping with the intent of the General Assembly to give the compensation act priority as an exclusive remedy. In matters involving workers’ compensation benefits the employer shall be immune from third party tortfeasors’ claims.
VI.
Appellant argues that the verdict was excessive. We do not agree. The employee has already paid out about $72,000 in medical expenses and approximately $39,000 in home improvements to accommodate his paraplegic condition. In determining whether a jury verdict is excessive the question is whether it shocks the conscience of the court or demonstrates that jurors were motivated by passion or prejudice. Evidence presented to the jury is given its highest probative force in favor of the verdict. If there is substantial evidence to sustain the verdict, it will not be disturbed. Moses v. Kirtley, 256 Ark. 721, 510 S.W.2d 281 (1974). There are no two cases which are identical in all respects. Each one must stand upon its own facts. Clark County Lumber Co. v. Collins, 249 Ark. 465, 459 S.W.2d 800 (1970).
The trial court is affirmed as to the judgment.
Affirmed. | [
-48,
90,
-104,
-100,
24,
-31,
26,
24,
113,
-76,
-27,
-9,
-83,
-59,
93,
47,
-29,
123,
80,
33,
-12,
-125,
17,
-29,
-102,
-77,
121,
-59,
-112,
79,
-12,
-44,
77,
52,
74,
-43,
-26,
-124,
-51,
92,
-18,
0,
1,
-8,
123,
-48,
60,
62,
-108,
11,
49,
-98,
-14,
63,
17,
-53,
41,
46,
107,
-96,
64,
113,
-118,
5,
-49,
20,
33,
-123,
-98,
7,
88,
62,
-36,
49,
40,
-20,
114,
-74,
-62,
-76,
41,
-71,
-116,
-30,
98,
32,
29,
-57,
-32,
-8,
47,
-65,
-99,
-84,
-71,
88,
19,
6,
-97,
-99,
-22,
22,
6,
108,
-75,
93,
85,
104,
-121,
-117,
-74,
-127,
79,
32,
-106,
-77,
-54,
7,
32,
113,
-34,
-94,
94,
69,
115,
31,
71,
-104
] |
Annabelle Clinton Imber, Justice.
This is the second appeal in this case. Employers’ Surplus Lines Insurance Company (“ESLIC”) makes several arguments in support of its contention in this appeal that the trial court erred when it denied ESLIC’s motion for attorney’s fees. We find no merit in ESLIC’s arguments and affirm the trial court.
In the first appeal, we briefly summarized the history of this case as follows:
Murphy Oil USA, Inc., the appellee, filed suit in Union County against a number of its insurance carriers seeking a declaration that the carriers were obligated under certain general comprehensive liability (“CGL”) policies to indemnify Murphy Oil for a judgment for compensatory and punitive damages previously rendered against it in a federal district court in Alabama. Prior to trial in Union County, certain insurance carriers settled with Murphy Oil, and others, such as Lloyd’s of London and Century Indemnity Company (formerly California Union Insurance Company), won summary judgment and were dismissed from the case. The Union County jury returned a verdict in Murphy Oil’s favor on its indemnification claims against appellants Unigard Insurance Company and Employers Surplus Lines Insurance Company (“ESLIC”) but found against Murphy Oil on its indemnification claim against Associated International Insurance Company.
Unigard Sec. Ins. Co. v. Murphy Oil USA, Inc., 331 Ark. 211, 962 S.W.2d 735 (1998). After judgment was entered in favor of Murphy Oil but before this court’s decision in the first appeal, Murphy Oil, as the prevailing party, filed a motion for attorney’s fees pursuant to Ark. Code Ann. § 23-79-208 (Repl. 1992), and also pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1994). In its motion for attorney’s fees, Murphy Oil asserted that the “action was commenced for damages for breach of contract and declaratory relief against certain of its insurance companies, including ESLIC and Unigard, which refused to provide insurance coverage for liabilities incurred by Murphy arising out of environmental damages.” The trial court conducted a hearing on Murphy Oil’s motion and entered an order on May 16, 1996, awarding Murphy Oil a net judgment for attorney’s fees in the amount of $1,714,000. Shortly thereafter, the trial court amended the May 16, 1996 judgment to reflect that the judgment for attorney’s fees in favor of Murphy Oil was against ESLIC and Unigard.
On January 29, 1998, this court held that none of the policies involved in this case covered Murphy Oil’s liability, and we reversed the judgment against Unigard and ESLIC and dismissed. See Unigard, supra. On March 19, 1998, Unigard and ESLIC, as the prevailing parties in an action for breach of contract, filed motions for attorney’s fees pursuant to Ark. Code Ann. § 16-22-308. Associated International filed a similar motion for reconsideration of its earlier request for attorney’s fees on June 17, 1998. Murphy Oil opposed these motions for attorney’s fees by the insurance companies on two grounds: 1) that the Insurance Code’s specific provision for attorney’s fees in § 23-79-208, which would take precedence over the general fee-shifting provision in § 16-22-308, did not provide for the award of fees to insurance companies; and 2) that this court’s determination that none of the insurance policies provided coverage was tantamount to a declaratory judgment.
On June 22, 1998, the trial court conducted a hearing on the motions for attorney’s fees filed by Unigard, ESLIC, and Associated International. The trial court awarded attorney’s fees totaling $1,200,000 to the insurance companies based upon a decision handed down by this court on June 11, 1998, in Village Market, Inc. v. State Farm Gen. Ins. Co., 333 Ark. 552, 970 S.W.2d 243 (1998) (Village Market I). In Village Market I, we held that where an insurance company is the prevailing party in a breach-of-contract action with an insured, it may be awarded an attorney’s fee under Ark. Code Ann. § 16-22-308. Id. At Murphy Oil’s request, the trial court withheld entry of an order until after this court ruled on a petition for rehearing in Village Market I. On July 16, 1998, we granted Village Market’s petition for rehearing and held that Ark. Code Ann. § 16-22-308 does not permit an insurer to recover attorney’s fees as the prevailing party in an action by an insured seeking recovery for a claim under his or her policy. Village Market, Inc. v. State Farm Gen. Ins. Co., 334 Ark. 227, 975 S.W.2d 86 (1998) (Village Market II). Based upon this court’s holding in Village Market II, the trial court entered an order on September 4, 1998, that vacated its original award of attorney’s fees and denied the motions for attorney’s fees filed by Unigard, ESLIC, and Associated International. Unigard, Associated International, and ESLIC all appealed. However, prior to submission we granted a motion to dismiss appeal filed by Unigard and Associated International. The sole remaining appellant, ESLIC, asserts several grounds for reversal.
First, ESLIC argues that Ark. Code Ann. § 16-22-308 allows the discretionary award of attorney’s fees to a prevailing insurer in an action for breach of contract. Section 16-22-308 provides that:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.
We rejected this argument in Village Market II, supra:
Because attorney’s fees are awarded only when expressly allowed by statute or rule, the silence of such fee awards to insurers in §§ 16-22-308 and 23-79-208 can only be interpreted to mean the General Assembly never intended that attorney’s fees be awarded to insurers when an insured has filed an action seeking recovery for a claim under his or her policy.
The trial court was therefore precluded by our ruling in Village Market II, supra, from awarding an attorney’s fee to ESLIC.
Moreover, on February 17, 1999, Governor Mike Huckabee approved and signed Act 135 of 1999, entitled “An Act To Amend Arkansas Code Annotated § 23-79-208 To Further Clarify The Existing Intent Of the General Assembly That Insurance Policy Holders Shall Not Be Liable For The Attorneys’ fees Incurred By Insurance Companies In the Defense of Cases In Which The Insurance Company Is Found Not Liable For The Loss; And For Other Purposes,” which added the following language to section 22-79-208(a):
In no event will the holder of the policy or his assigns be liable for the attorneys’ fees incurred by the insurance company, fraternal benefit society or farmers’ mutual aid association in the defense of a case where the insurer is found not liable for the loss.
Act 135 went into effect on the date of its approval by the Governor pursuant to an emergency clause. Furthermore, according to Section 2 of Act 135, it was “the express intent of the General Assembly that this Act be applied retroactively to pending cases as it is remedial and procedural in nature.” Although there is a presumption that the legislature intends statutes or amendments enacted by it to operate prospectively and not retroactively, this presumption is effectively rebutted where the intention of the legislature to make the statute retroactive is stated in express terms. Estate of Wood v. Dept. of Human Services, 319 Ark. 697, 894 S.W.2d 573 (1995). Likewise, the rule by which statutes are construed to operate prospectively does not ordinarily apply to procedural or remedial legislation. Gannett Rover States Publishing Co. v. Arkansas Industrial Development Commission, 303 Ark. 684, 799 S.W.3d 543 (1990). Thus, the trial court was without authority under both statutory and case law to award attorney’s fees to ESLIC as the prevailing party in Murphy Oil’s action for indemnification under the ESLIC policy.
Nevertheless, ESLIC argues that this case is distinguishable from Village Market II, supra. First, ESLIC suggests that its status as an excess liability insurer is not covered by Ark. Code Ann. § 23-79-208 because the statute does not specifically list umbrella, or excess, liability carriers within its provisions. However, section 23-79-208 does include casualty insurance within its provisions, and Ark. Code Ann. § 23-62-105 (Repl. 1994) broadly defines casualty insurance to include liability insurance “unless the context otherwise requires.” Contrary to ESLIC’s argument, nothing in the context of section 23-79-208 requires that excess liability insurance be excluded from the coverage of its provisions. Accordingly, we deem this argument to be without merit.
ESLIC also argues that Village Market II does not preclude a fee award in cases where the contract of insurance sued upon was negotiated on a “level playing field.” Village Market II, however, makes no distinction as to the type of insurance policy or the circumstances surrounding the issuance of the policy. As previously stated, we held in Village Market II, supra, that “the General Assembly never intended that attorney’s fees be awarded to insurers when an insured has filed an action seeking recovery for a claim under his or her policy,” thus ruling out any award of attorney’s fees to any insurer sued by an insured seeking recovery on any policy of insurance. In light of the breadth of the holding in Village Market II, supra, we reject ESLIC’s argument inviting us to restrict the application of Village Market II to situations involving adhesion insurance policies.
ESLIC’s final point on appeal involves the doctrine of judicial estoppel, by which a party may be prevented from taking inconsistent positions in successive cases with the same adversary. See Muncrief v. Green, 251 Ark. 580, 473 S.W.2d 907 (1971). ESLIC claims that Murphy Oil is judicially estopped from claiming that § 16-22-308 does not apply to the instant action in light of its earlier reliance on that statute as an alternate basis for an award of attorney’s fees when it was the prevailing party. We need not address the merits of this argument, for even if we were to conclude that Murphy Oil was judicially estopped, the trial court is still without authority to award ESLIC attorney’s fees under Ark. Code Ann. §§ 22-79-208 or 16-22-308 in light of Village Market II and Act 135 of 1999.
Affirmed.
Glaze and Corbin, JJ., not participating. | [
-12,
-24,
120,
-84,
-120,
-32,
58,
26,
89,
-15,
-27,
83,
-81,
-26,
-128,
59,
-21,
123,
101,
98,
-45,
-93,
83,
96,
22,
-77,
57,
-58,
-80,
79,
-26,
-4,
76,
32,
-54,
-123,
102,
66,
-59,
-36,
78,
13,
-40,
-20,
89,
26,
-80,
-24,
86,
75,
49,
-124,
-24,
40,
25,
-21,
45,
44,
-5,
-91,
75,
56,
-126,
5,
63,
18,
17,
4,
-98,
103,
-54,
30,
-112,
-76,
0,
-24,
50,
38,
-58,
116,
35,
-103,
12,
34,
99,
33,
5,
-17,
-20,
-68,
22,
-38,
15,
-122,
-94,
41,
91,
2,
-105,
-105,
90,
24,
-113,
-12,
-8,
21,
31,
44,
-89,
-122,
-110,
-79,
47,
-28,
-100,
-125,
-17,
-113,
-74,
65,
-53,
-78,
92,
7,
54,
95,
2,
-102
] |
Donald L. Corjbin, Judge.
Appellee Dewayne Dee Dillard was convicted in the Sebastian County Circuit Court of two counts of first-degree sexual abuse and sentenced to eight years’ imprisonment. This court affirmed the convictions. See Dillard v. State, 333 Ark. 418, 971 S.W.2d 764 (1998). Dillard then filed a petition for postconviction relief, pursuant to Ark. R. Crim. P. 37, asserting that his trial counsel was ineffective for failing to interview and subpoena two witnesses who would have testified that one of the victims was untruthful. The circuit court granted the petition, and the State of Arkansas brings this appeal. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (7). We affirm.
Before we reach the merits of this appeal, we must first address Dillard’s argument that the State may not appeal from the grant of a Rule 37 petition. The State responds by contending that Rule 37 proceedings are civil in nature, and that this appeal is brought pursuant to Rule 2(a)(3) of the Arkansas Rules of Appellate Procedure—Civil (providing for appeal from an order granting a new trial). We agree with the State, as this court has repeatedly recognized that postconviction proceedings under Rule 37 are civil in nature. See, e.g., Cravey v. State, 306 Ark. 487, 815 S.W.2d 933 (1991); Mullins v. State, 303 Ark. 695, 799 S.W.2d 550 (1990) (per curiam); Brooks v. State, 303 Ark. 188, 792 S.W.2d 617 (1990) (per curiam). Indeed, this court has recently decided appeals by the State from grants of postconviction relief. See State v. Clemmons, 334 Ark. 440, 976 S.W.2d 923 (1998); State v. Her-red, 332 Ark. 241, 964 S.W.2d 391 (1998); State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998). Having thus determined that the appeal is properly before us, we turn to the merits of the case.
The record reveals that Dillard was convicted of two counts of first-degree sexual abuse involving two minor girls: S.S. and T.L. During the course of the trial, Dillard maintained that the girls were lying. The only witness called by the defense was Dillard himself. Dillard alleged in his petition that his trial counsel, John Settle, was ineffective for failing to interview and subpoena two potential defense witnesses: Samantha Bay, S.S.’s sister, and Jimmy Lambert, T.L.’s brother. At the hearing, Dillard testified that Bay would have testified that S.S. was not a truthful person, and that she did not believe S.S.’s accusations against Dillard. Dillard stated that Lambert was prepared to testify that S.S. had made up the allegations against Dillard.
Dillard maintained that he had informed Mr. Settle about these two witnesses. He stated that Mr. Settle assured him that he did not need any witnesses because he was going to rely primarily on the motion for severance of the two charges. He stated that Mr. Settle said that he was going to continue to rely on the severance motion up to the day of trial and beyond. He stated that Mr. Settle told him that there would be no problem in obtaining a severance through an appeal, and that he should not worry about it because he would be entitled to a new trial on appeal. The trial record reflects that the only witness called by the defense was Dillard himself.
Mr. Settle testified that he was aware that Bay might have held the opinion that S.S. had a problem telling the truth and had a reputation for dishonesty. He indicated that her testimony, as described in the Rule 37 petition, would have been helpful to the defense. He stated that he knew that Dillard’s trial was going to come down to a swearing match between Dillard and the two victims. Mr. Settle conceded, however, that he had never spoken with Bay about her potential testimony, and he maintained that he made the decision not to call her as a witness based upon his experience as a criminal defense attorney. He explained that he was aware that Bay hated Dillard, and that she had stated that she hoped he rotted in jail or was hanged by a rope. He stated that Bay was not someone he wanted to “let loose on the stand.” Mr. Settle agreed with Dillard’s counsel, however, that he could have avoided the unfavorable testimony by simply not asking Bay her opinion of Dillard.
Mr. Setde denied having any knowledge of Lambert’s testimony, which he stated would have been extremely helpful to the defense. He denied having ever been informed by Dillard of this witness’s existence. In contrast, Dillard’s father, Erbie Dillard, testified that he was present during a conference with Mr. Settle when Dillard tried to get him to call Lambert as a witness. Erbie Dillard stated that Mr. Settle indicated that he did not think they would need to call any witnesses.
The trial court granted Dillard’s petition on the ground that trial counsel was ineffective in regard to both witnesses’ testimony. The trial court found that counsel was ineffective for relying entirely on Samantha Bay’s statement to the authorities and failing to interview her and make an independent evaluation of her potential testimony. The trial court also found that counsel was ineffective for failing to interview and call Jimmy Lambert as a witness at Dillard’s trial. The trial court found further that Dillard’s trial had been prejudiced in these two instances. On appeal, the State raises three points for reversal. We find no merit and affirm the trial court’s order.
The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show (1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced his defense. See Clemmons, 334 Ark. 440, 976 S.W.2d 923; Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). Unless the petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. In other words, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. We will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Herred, 332 Ark. 241, 964 S.W.2d 391; Slocum, 332 Ark. 207, 964 S.W.2d 388. With this standard in mind, we discuss the points on appeal.
I. Samantha Bay’s Testimony
The trial court found that Mr. Settle was ineffective for failing to interview Samantha Bay, S.S.’s sister, and make an independent evaluation of her potential testimony. The trial court found further that Bay’s testimony related to the credibility of one of the victims, S.S., to the extent that the victim was not a truthful person and could not be believed. The State argues that Mr. Settle’s decision not to call Bay as a witness was a matter of trial strategy, and that the decision not to interview her was reasonable because she was not going to be called as a defense witness. The State argues further that even if Mr. Settle’s decision not to interview Bay or call her as a witness was unreasonable, Dillard was not prejudiced because Bay would have been a mere character witness. We disagree.
The decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998); Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Trial counsel must use his or her best judgment to determine which witnesses will be beneficia! to the client. Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996); Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995). When assessing an attorney’s decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Johnson, 325 Ark. 44, 924 S.W.2d 233. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland, 466 U.S. 668. Wicoff, 321 Ark. 97, 900 S.W.2d 187.
In Wicoff, 321 Ark. 97, 900 S.W.2d 187, this court reversed the trial court’s denial of postconviction relief due to counsel’s errors in (1) failing to investigate the victims’ prior allegations of sexual abuse, and (2) fading to call the defendant’s grandmother, Ms. Dickerson, who would have testified that one of the young victims told her that she had fabricated the allegations against the defendant. Trial counsel explained that he had not called Ms. Dickerson because she was a relative of the defendant. This court rejected that explanation, holding:
[W]e cannot say that, under the facts presented, [trial counsel’s] decision was supported by reasonable professional judgment. At trial, the evidence against Wicoff was limited to the testimony of the tivo girls. The doctor who examined them testified that there was no physical evidence of sexual abuse, and that, in his opinion, the girls’ accounts of the incidents were reliable. As such, the credibility of the girls’ testimony was highly relevant, as their testimony was, in essence, the State’s only evidence against Wicoff. Ms. Dickerson’s testimony that the eleven-year-old had admitted to her that she had fabricated the incident would have served to impeach the minor’s credibility. Although Ms. Dickerson was available to testify to this conversation at trial, counsel for WicofF did not call her or any witnesses on his behalf. Counsel for Wicoff readily admitted, however, through his own testimony at the Rule 37 hearing, that Ms. Dickerson’s testimony “would have shed doubt on [Wicoffs] guilt [sic]. ”
Id. at 102, 900 S.W.2d at 189-90 (emphasis added). This court concluded that there was a reasonable probability that the outcome of the trial would have been different, but for counsel’s errors.
Here, Mr. Settle conceded that he was aware that Bay might have held that opinion that S.S. had a problem telling the truth and had a reputation for dishonesty. Yet he declined to interview her despite his knowledge that Dillard’s trial was going to come down to a swearing match between Dillard and the two victims. As such, his failure to interview the girl was unreasonable in light of the holding in Wicoff. Moreover, we concur with the trial court’s finding that Dillard’s trial was prejudiced by counsel’s error in this instance. It is undisputed that there was no physical evidence presented in support of the charges against him. Like the situation in Wicoff, the State’s case rested almost entirely on the testimony of the two young victims. Accordingly, the victims’ credibility, or lack thereof, was of crucial importance. Mr. Settles’s explanation that he did not call Bay because he was afraid that she would reveal her hatred for Dillard is unreasonable, as it clearly would have been to the defense’s advantage to have a wit ness who admittedly hated the defendant testify that the victim, the witness’s own sister, was not to be believed.
II. Jimmy Lambert’s Testimony
During the Rule 37 hearing, Lambert testified that a couple of weeks prior to the alleged incident, S.S. talked about being mad at Dillard and how she would call the cops and tell them that Dillard had raped her. Lambert stated that he told Dillard that he was willing to testify at the trial; however, Lambert stated that.he was never contacted by Mr. Settle regarding his testimony. Mr. Settle admitted that Lambert’s testimony would have been extremely helpful, but he maintained that he had not been aware of the testimony. The trial court was not persuaded by Mr. Settle’s claim, as it found that counsel was ineffective for failing to interview Lambert and for failing to call him as a defense witness.
The State makes no argument regarding trial counsel’s failure to interview Lambert and call him as a defense witness. Rather, the State asserts that Dillard was not prejudiced by trial counsel’s decision not to call Lambert because there was other evidence supporting his defense that S.S. had made up the allegations against him. This “other evidence” referred to by the State is the testimony of Detective Holohan, who testified that S.S. told him that she hated Dillard and that whenever she was mad at someone, she took it out on them. Holohan also testified that Dillard told him that S.S. was making up the allegations because she did not like him and was trying to undermine his relationship with her mother. The State contends that Lambert’s testimony would have been cumulative, and its omission was thus not prejudicial. We disagree that his testimony was merely cumulative.
As discussed in the previous point, the victims’ credibility, or lack thereof, was of crucial importance to the defense, as the State’s case against Dillard rested almost entirely on the testimony of the two girls. Jimmy Lambert is the brother of T.L., one of the victims in this case. Like Bay, Lambert’s relationship to one of the victims in this case lends credibility to his testimony, as it may have tended to undermine the entire case against Dillard. His testimony was therefore of chief importance to the defense, and would likely have carried more weight than the testimony offered by Dillard or Detective Holohan. Thus, for the reasons explained in Wicoff, 321 Ark. 97, 900 S.W.2d 187, we cannot say that the trial court erred in finding that Mr. Settle’s decision not to call Lambert as a defense witness was prejudicial to Dillard’s trial.
III. Prejudice to the Count Involving T.L.
For the final point for reversal, the State argues that, at a minimum, the trial court’s ruling must be reversed as to the charge involving the sexual abuse of T.L. The State submits that each of the errors alleged by Dillard pertained only to the credibility of S. S. and did not call into question T.L.’s credibility. Thus, the State asserts, Dillard should only receive a new trial on the count involving S.S. Although we agree with the State that the proffered testimony from both witnesses involved the lack of veracity of only one of the victims, we cannot say that the proffered testimony would not have otherwise impacted the charges involving T. L.
Dillard was tried for one count of rape against S.S. and one count of first-degree sexual abuse against T.L. The jury found Dillard guilty of engaging in first-degree sexual abuse with both victims. The only issue pursued on appeal was whether the trial court erred in refusing to grant Dillard’s motion to sever the charges. This court concluded that the allegations made by the girls were so similar that each victim’s testimony would have been relevant and admissible in separate trials:
The thirty-five-year-old Appellant obtained access to both young female victims through his relationships with their respective parents; he stayed with S.S.’s mother off and on, and visited T.L.’s home frequently during the time frame at issue. Additionally, T.L. had lived with S.S.’s mother and Appellant for a brief period after T.L.’s house had burned. As such, we conclude that Appellant formed intimate relationships with both victims. The similarity of the manner in which Appellant committed the acts is remarkable. Both victims testified that Appellant made sexual advances toward them and grabbed their breasts on numerous occasions. S.S. testified that Appellant raped her after she had refused his ongoing demands for sexual intercourse. T.L. testi fled that Appellant threatened to rape her if she would not consent to sex. Both victims testified that he told them that sex would not hurt and would only take about three minutes. Moreover, the overlapping time frame of June 19, 1996, through August 2, 1996, also weighs in favor of proving Appellant’s intent, scheme, or plan.
Dillard, 333 Ark. 418, 426, 971 S.W.2d 764, 768.
To prevail on a claim of ineffective assistance of counsel, the petitioner must only show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent counsel’s errors. Thomas, 330 Ark. 442, 954 S.W.2d 255. Because the testimony of the girls was so similar, we cannot say that the trial court clearly erred in concluding that Dillard’s trial was prejudiced by counsel’s errors. Accordingly, the judgment of the trial court is affirmed.
Though not pertinent to this appeal, Dillard also alleged that trial counsel was ineffective for failing to call Mrs. Louise Jones, S.S.’s mother. | [
112,
-18,
-60,
-68,
11,
65,
26,
28,
66,
-93,
119,
-46,
-81,
-42,
-124,
123,
-86,
91,
117,
97,
-37,
-73,
55,
65,
98,
-14,
25,
70,
-77,
79,
-92,
-10,
72,
112,
-54,
-43,
102,
64,
-57,
88,
-114,
3,
-117,
-20,
81,
7,
56,
46,
82,
15,
49,
-97,
-13,
108,
28,
75,
-51,
12,
89,
60,
88,
17,
-102,
5,
-19,
36,
-93,
-92,
-103,
3,
112,
60,
-100,
57,
1,
-8,
115,
50,
-126,
116,
107,
-71,
13,
96,
98,
37,
-119,
-59,
-83,
-96,
14,
63,
-99,
-90,
-104,
41,
66,
77,
-73,
-100,
126,
84,
13,
122,
114,
77,
85,
108,
-123,
-49,
-108,
-79,
-89,
45,
22,
-46,
-61,
47,
16,
101,
-51,
-30,
84,
87,
81,
-37,
-106,
-13
] |
Per Curiam.
Mr. Timothy D. Williams appeared on June 24, 1999, in response to this court’s per curiam order of May 20, 1999, wherein the court requested Mr. Williams to show cause why he should not be held in contempt. The per curiam referenced the petition of the Professional Conduct Committee, which stated Mr. Williams’s license to practice law had been suspended on February 2, 1999, and the Committee further alleged that Mr. Williams had failed to comply with the procedures required of an attorney during his suspension. Mr. Williams entered a plea of not guilty to the specified charges and requested a hearing. The court hereby appoints attorney at law Scott Stafford as master in this matter and directs that he set an early hearing date to permit the Professional Conduct Committee and Mr. Williams the opportunity to present their respective charges and defenses. The court further requests that the master file his findings on or before Tuesday, July 13, 1999. The parties may file simultaneous briefs on or before Friday, July 16, 1999, and reply briefs, if desired, on or before 5:00 p.m., Monday, July 19, 1999. | [
-80,
-20,
84,
-100,
10,
32,
48,
-84,
-35,
115,
119,
81,
-91,
-34,
20,
105,
-77,
43,
85,
123,
-115,
-76,
118,
65,
-76,
-105,
-29,
-41,
-77,
127,
-9,
-101,
77,
56,
-54,
-105,
70,
-56,
-59,
22,
-58,
27,
9,
-28,
81,
-127,
48,
123,
80,
15,
49,
94,
-93,
-18,
53,
74,
-23,
96,
-17,
67,
-56,
-127,
-99,
-122,
95,
18,
-77,
4,
30,
-114,
-40,
126,
-120,
48,
-128,
-23,
115,
-74,
2,
84,
79,
-7,
8,
64,
98,
32,
-51,
-25,
-80,
-88,
22,
56,
-116,
-90,
-101,
121,
73,
36,
-106,
-65,
119,
116,
38,
-2,
111,
-51,
31,
36,
14,
78,
-60,
-77,
-97,
-12,
-50,
18,
-30,
7,
16,
21,
-124,
118,
94,
74,
51,
-37,
-34,
-128
] |
Steele Hays, Justice.
This is an inner-family dispute. Mona Adkins, appellant, is the widow of Raymond Adkins and a sister-in-law of Elizabeth Hughes, Ruby Hill and Betty Hughes, deceased. Mona brought this suit against Elizabeth and Ruby, claiming an inter vivos gift to Raymond of a $10,000 Certificate of Deposit. The Chancellor found there was no gift and the issue on appeal is whether the evidence established a gift. We affirm the Chancellor.
Prior to her death in January 1981, Betty had been physically incapacitated for a number of years and her business affairs were being handled by her sister, Elizabeth. In 1979, Betty obtained a $30,000 C.D., naming her sisters, her brother and herself as co-owners. At a family gathering in January, 1980, a dispute arose concerning the certificate. Elizabeth then went to the bank and had the $30,000 C.D. converted into three C.D.’s of $10,000 each, listing the same four names on each certificate. She returned to the house and in Betty’s presence gave one C.D. to Ruby, one to Raymond, and kept one for herself. Raymond died a year later, several weeks before Betty.
There were irregularities in the procedures setting up the original $30,000 C.D. and in the subsequently converted C.D.’s of $10,000 each. The trial court held that a joint tenancy had not been established on either occasion and that the money had remained Betty’s at all times. We agree with the result reached by the trial court. It appears that the most we can say about the $10,000 C.D. that was handed to Raymond is that it was a C.D. for $10,000 in Betty’s name. It is not necessary to discuss the trial court’s finding on the joint tenancy as that issue is not contested by the appellant, nor do we need to determine the status of the C.D. delivered to Raymond, as we agree in any case, that the trial court was correct in its finding that there was insufficient evidence to establish an inter vivos gift.
We stated the rule for establishing a gift in Boling, Special Administrator v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979).
[The appellants have] the burden of showing, by clear and convincing evidence, that these certificates were delivered to them by [the donor] with the clear intent to make an immediate, present, final gift beyond recall, releasing all future dominion and control. It must have been the intention of the donor that title pass immediately. . . .
The only evidence on behalf of Mona that might indicate a gift was her own testimony pertaining to Betty’s intent at the family gathering:
Betty told Elizabeth to go to the bank... and Elizabeth had one certificate, to take care of it, and to make three of them, one for Ruby and one for Raymond. . . .
There was no other evidence introduced that would imply that an effective gift had been made. Even Mona’s testimony on the issue of intent fails to rise to the level of a present and immediate gift. The remainder of the argument is based on speculation.
Elizabeth testified that Betty had suffered a stroke and had had light strokes from time to time, was not able to write her name and had difficulty in her speech. Betty’s nurse also testified as to her poor physical condition. The trial court in its findings stated it did not find Betty was fully competent to transact business at all times mentioned, and her competency was not proved by any testimony.
Betty was present at the gathering but except for Mona’s testimony she was a passive participant in the proceeding and made no significant comment. The nurse said Betty did not even look at the C.D.’s when Elizabeth returned from the bank. Mona’s claim that Betty instructed Elizabeth to cash in the C.D. and divide the proceeds equally among the three for gift purposes is unsupported. Elizabeth’s explanation was that dividing up the C.D.’s was for safekeeping, and to prevent family squabbling. She said the $30,000 constituted most of Betty’s assets and this testimony was not challenged.
In studying the abstracted testimony, we find nothing relative to either the original C.D. or the converted C.D.’s that indicates Betty ever intended to make a present, immediate or final gift or to give up all dominion and control of what was apparently all her cash assets. Her passive role in the transaction can only provide us with matters of speculation and does not give clear and convincing evidence that a gift was intended:
... a delivery for safekeeping or for any purpose, either express or implied, other than a specific intent to part with all right, title and interest in, and all dominion and control over the certificates would not constitute a gift. Boling, supra, at 17.
Affirmed. | [
-15,
124,
-24,
124,
8,
96,
42,
-86,
98,
-122,
54,
83,
-21,
90,
85,
109,
48,
45,
81,
107,
-13,
-77,
55,
64,
-46,
-77,
-88,
-33,
-71,
125,
-11,
-34,
76,
32,
-54,
93,
-58,
-121,
-59,
80,
-116,
10,
-86,
-95,
-11,
-62,
48,
35,
64,
15,
-31,
-122,
-73,
41,
20,
102,
44,
110,
75,
59,
80,
-31,
-113,
-122,
95,
22,
-111,
36,
-104,
9,
-8,
8,
-36,
-79,
0,
-32,
114,
-90,
-46,
116,
107,
-103,
13,
100,
98,
-96,
-123,
-3,
-72,
-116,
38,
110,
-67,
-90,
-46,
89,
65,
111,
-67,
-99,
124,
-44,
6,
112,
54,
-36,
28,
36,
12,
-113,
-42,
-79,
45,
114,
-104,
10,
-26,
-91,
34,
65,
-39,
-42,
93,
87,
57,
-101,
-58,
-78
] |
Darrell Hickman, Justice.
On June 30, 1980, appellant, Lyndale Walker, pleaded guilty to the offense of arson and was sentenced to five years in prison. On August 31, 1981, he filed a handwritten petition for post-conviction relief pursuant to A.R.Cr.P., Rule 37. He asked for a hearing on his petition and that his sentence be set aside. Two of appellant’s allegations are that he was “in a demented mental capacity” and that his plea of guilty was involuntary. The trial court denied appellant’s petition without a hearing.
Eleven years ago the same appellant used the same phrase, “demented capacity,” and we held this phrase to be sufficient to allege mental incompetency to the extent that he was unable to participate in his defense. Walker v. State, 251 Ark. 182, 471 S.W.2d 536 (1971). The same phrase was also sufficient to state a cause of action for post-conviction relief in Parker v. State, 253 Ark. 8, 484 S.W.2d 91 (1972).
The holding in Walker v. State, supra, has been eroded by the passage of time and other decisions by this court and we have come to routinely deny post-conviction relief which is asked for in allegations that can only be characterized as conclusory. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982); Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978); Stone v. State, 254 Ark. 566, 494 S.W.2d 715 (1973). We specifically overrule our holdings in Walker v. State, supra and Parker v. State, supra. But the trial court ignored our first decision in Walker v. State, supra, and denied the petition on other grounds. It would be unfair to the petitioner, who used the same words before and was granted post-conviction relief, to deny him outright an opportunity for a hearing. However, he will have to allege grounds now deemed sufficient to justify a post-conviction hearing. Therefore, he will be given an opportunity to file with the trial court, within thirty days, a proper petition for post-conviction relief that complies with our recent decisions.
In regard to pleas of guilty and petitions for post- conviction relief, the trial court’s attention is directed to Byler v. State, 257 Ark. 15, 513 S.W.2d 801 (1974), and Simmons v. State, 265 Ark. 48, 578 S.W.2d 12 (1979).
Reversed and remanded.
Dudley, J., concurs.
Adkisson, C.J., and Hays, J., dissent. | [
80,
-22,
-44,
28,
11,
97,
58,
-82,
-61,
-77,
-89,
115,
-85,
-118,
64,
61,
127,
123,
85,
121,
-61,
-73,
51,
73,
-10,
-13,
121,
87,
53,
75,
-12,
-76,
76,
114,
-54,
-11,
102,
-56,
-91,
84,
-118,
17,
-71,
-28,
-96,
26,
48,
47,
84,
15,
49,
-98,
-29,
42,
20,
-57,
72,
44,
90,
-75,
80,
-87,
-101,
13,
-5,
20,
-93,
-92,
-66,
-121,
-16,
46,
-104,
-79,
1,
-22,
115,
-106,
-122,
116,
111,
-103,
-116,
100,
98,
41,
29,
39,
-24,
-119,
62,
54,
-99,
-90,
-104,
9,
99,
77,
-105,
-35,
117,
52,
44,
126,
-17,
12,
116,
108,
9,
-58,
-66,
-79,
-17,
124,
-100,
-29,
-21,
40,
34,
53,
-51,
-30,
92,
119,
113,
-37,
-120,
-108
] |
George Rose Smith, Justice.
Less than two years ago we amended our Code of Judicial Conduct to permit radio and television stations to provide pooling arrangements for the broadcasting, recording, or photographing of substantially all court proceedings, subject to the control of the presiding judge. Re Petition of Arkansas Bar Association, 271 Ark. 358, 609 S.W.2d 28 (1980). The Code amendments appended to the opinion required, among other restrictions, that only one fixed television camera be used and that all parties to the case consent to its use. Our decision was reached after the news media and the general public had been invited to submit their views. There was actually only one minor objection to the bar association’s proposed amendments to the Code.
The present petition arises from two widely publicized criminal cases in which the three defendants, Eugene James Hall, Larry Darnell McClendon, and Mary (Lee) Orsini, all protested the presence of television cameras at their arraignment. The trial judge (the respondent Lofton) sustained the objection, as the amended Code required him to do, and ordered the removal of all television equipment. Counsel for the present petitioner, KARK-TV, unsuccessfully argued that the Code’s requirements that the parties consent to the presence of television cameras really means that a party can withhold his consent only by showing by clear and convincing evidence some compelling reason for the exclusion of cameras.
The present petition, filed here as an original proceeding, first asks that we issue a writ of mandamus compelling Judge Lofton to stop excluding cameras absent a compelling necessity shown by clear and convincing evidence. The prayer itself demonstrates that we are being asked to control Judge Lofton’s discretionary action; so mandamus is obviously not the proper remedy. The petition also contains an alternate ex parte prayer that we amend the Code to provide that a party objecting to the presence of television or other electronic equipment must show that the equipment presents a clear and imminent threat to the fair administration of justice. We find no merit in the petitioner’s arguments and therefore deny the petition without first inviting comments from others who may be interested.
The petitioner’s position is that every newspaper, radio, and television reporter has an absolute right under the First Amendment to enter any public proceeding — presumably either legislative, executive, or judicial — and record whatever occurs, by means of a television camera, a still camera, a microphone, a tape recorder, a typewriter, or anything else, unless an objecting party shows by clear and convincing evidence a compelling reason for a curtailment of the reporter’s activity.
Counsel cite no case supporting such an unfettered right of “technological access” to courtrooms and other public areas. In Florida, where the Code of Judicial Conduct permits the televising of criminal proceedings even over the defendant’s objection, the Supreme Court summed up its position in Petition of Post-Newsweek Stations, Florida, 370 So.2d 764, 774 (Fla., 1979):
While we have concluded that the due process clause does not prohibit electronic media coverage of judicial proceedings per se, by the same token we reject the argument of the petitioner that the first and sixth amendments to the United States Constitution man date entry of the electronic media into judicial proceedings.
That sentence was quoted, not necessarily with approval but certainly not with disapproval, by the Supreme Court of the United States in Chandler v. Florida, 449 U.S. 560 (1981), where the court held in effect that the various states are free to experiment in their efforts to determine to what extent the electronic media should be given access to the courtroom.
The only substantial support for the petitioner’s position is to be found in an article written by Professor Diane L. Zimmerman, “Overcoming Future Shock: Estes Revisited,” 1980 Duke L. J. 641. That article was published shortly before the decision in the Chandler case; its author was writing quite frankly as an advocate for her position. Even she, however, recognized the need for restrictions upon the media’s access:
The presence of cameras in the courts makes necessary rules to protect the court against noise, disruption, and confusion. Regulation of the number, placement, and noise levels of cameras is necessary to enable the court to carry on its work free from interruption. The accommodation of the due process rights of parties in civil and criminal proceedings also justifies these regulations. [P. 700.]
When we opened our courtroom doors to the electronic media to a somewhat limited extent, we referred to our action as “an experiment which we hope will work.” 271 Ark. 361. That experiment, not yet two years old, appears to be functioning satisfactorily. The present petition does not persuade us of the wisdom of the proposed modification of the plan.
Petition denied. | [
48,
-24,
-104,
92,
8,
99,
28,
-68,
123,
-21,
-25,
83,
-91,
26,
4,
103,
-93,
61,
84,
105,
-42,
-74,
87,
98,
-94,
-45,
-45,
-41,
-14,
-49,
-20,
62,
77,
48,
-54,
-47,
71,
-56,
-51,
-36,
-114,
3,
89,
-47,
-62,
64,
49,
33,
50,
-113,
17,
-97,
-9,
-84,
28,
67,
41,
60,
91,
-83,
73,
49,
-87,
93,
-3,
6,
-79,
52,
-101,
-123,
-4,
44,
-40,
25,
24,
-24,
51,
-90,
-128,
116,
11,
-39,
12,
114,
98,
-128,
-17,
-18,
-68,
-88,
103,
74,
-99,
-89,
-106,
104,
73,
44,
-74,
-67,
104,
16,
43,
126,
-25,
21,
86,
108,
11,
71,
-100,
-73,
-121,
123,
-116,
59,
-21,
-30,
80,
113,
-55,
-12,
78,
119,
83,
87,
-114,
-67
] |
Richard B. Adkisson, Chief Justice.
Petitioner, Paul Lawrence Blackmon, seeks a writ of prohibition pursuant to A.R.Cr.P. Rule 28.1 (d), Ark. Stat. Ann., Vol. 4A (Supp. 1981) to prohibit the Fourth Division of the Pulaski County Circuit Court from proceeding to trial on a charge of first degree battery against petitioner. Petitioner alleges that the trial court should have granted his motion to dismiss the charge because his right to a speedy trial was violated. We do not agree and deny the writ.
The incident giving rise to the charge of first degree battery occurred on August 24,1980, while petitioner was an inmate in the Pulaski County Jail as a federal detainee. The following day he was transferred to a federal prison in El Reno, Oklahoma. On September 25, 1980, he was officially charged with battery. The prosecuting attorney placed a detainer against him pursuant to A.R.Cr.P. Rule 29.1 (b), Ark. Stat. Ann., Vol. 4A (Supp. 1981) which provides:
If the prosecuting attorney has information that a person charged with a crime is imprisoned in a penal institution of a jurisdiction other than the State of Arkansas, he shall promptly cause a detainer to be filed with the official having custody of the prisoner and request such officer to advise the prisoner of the filing of the detainer and of the prisoner’s right to demand trial.
This rule supplements the Interstate Agreement on Detainers,'Ark. Stat. Ann. § 43-3201 (Repl. 1977), which entitles a prisoner incarcerated in another “state” to a trial within 180 days if he so requests. Petitioner did not request trial pursuant to this act.
On December 18,1981, petitioner completed his federal sentence and was transferred to the Pulaski County Jail. A bail bond was filed on January 5, 1982, and a trial date was set for June 25, 1982.
We do not agree with petitioner’s argument that since he was not brought to trial within 18 months, his right to a speedy trial was violated under A.R.Cr.P. Rule 28.1 (c), Ark. Stat. Ann., Vol. 4A (Supp. 1981) which provides:
Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, including release from incarceration pursuant to subsection (a) hereof, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
By its express terms this rule does not apply to the petitioner who was not held to bail or was not otherwise at liberty. Also, this rule would be inapplicable to the petitioner because a detainer was placed against him under the Interstate Agreement on Detainers Act. And, A.R.Cr.P. Rule 28.1 (g), Ark. Stat. Ann., Vol. 4A (Supp. 1981) clearly states that Rule 28.1 “shall have no effect in those cases which are expressly governed by the Interstate Agreement on Detainers Act.”
Writ denied.
Purtle, J., dissents. | [
112,
-21,
-12,
-98,
11,
97,
56,
-72,
83,
-13,
-28,
83,
45,
94,
5,
113,
35,
107,
117,
-7,
-39,
-73,
119,
64,
50,
-13,
89,
-41,
51,
105,
-28,
-76,
8,
104,
-54,
81,
-121,
72,
-89,
92,
-50,
33,
-103,
-32,
80,
-120,
40,
38,
82,
15,
49,
14,
-29,
106,
16,
-62,
73,
108,
75,
14,
-40,
-71,
-71,
79,
-17,
22,
-95,
-122,
-97,
-59,
80,
122,
-104,
49,
16,
-24,
115,
-110,
-126,
116,
107,
-103,
44,
102,
98,
2,
-35,
-1,
-96,
-88,
30,
30,
-99,
-122,
-48,
89,
67,
36,
-105,
-107,
123,
20,
6,
-6,
110,
4,
85,
108,
-122,
-50,
-104,
-91,
-113,
33,
-122,
-77,
-29,
39,
80,
117,
-59,
-26,
92,
87,
121,
-101,
-114,
-15
] |
Darrell Hickman, Justice.
The only issue in this case is whether the chancellor was wrong in deciding that he did not have jurisdiction in this interstate custody dispute. The chancellor found that the Uniform Child Custody Jurisdiction Act, Ark. Stat. Ann. § 34-2701, et seq. (Cum. Supp. 1981), did not require the Chancery Court of Pulaski County to exercise jurisdiction since the only basis would have been that the father of the children, John O. LeGuin, had become a resident of Arkansas. We affirm the chancellor.
There was no testimony taken and there are no relevant facts in dispute. The chancellor dismissed the complaint on the basis of the pleadings. John O. LeGuin brought this action in an attempt to have an Arkansas court determine that he was entitled to custody of his children. John O. LeGuin and Katherine Jean LeGuin were married in 1973 in Scranton, Pennsylvania. They had three children and John adopted a child that Katherine had before their marriage. In 1978, Katherine LeGuin took all the children, left Louisiana where they were living, and her husband. She filed an action in New York to have custody of the children placed with her cousin, Cheryl Caswell, a resident of Oklahoma. A family court in New York entered an order granting custody to the cousin but it was done without notice to John O. LeGuin. The mother died of leukemia in April of 1981, and Cheryl Caswell took the children to Oklahoma that month where they remained with her and her husband.
In August of 1981, John O. LeGuin filed a motion in Pulaski County Chancery Court requesting the court to take jurisdiction of the matter and award him custody. The court found that the Uniform Child Custody Jurisdiction Act was applicable and, according to it and the provisions which determine jurisdiction in various courts, Arkansas lacked jurisdiction in this matter. The chancellor noted that in his judgment Oklahoma would be the best forum to try this interstate custody dispute, and he observed that the New York decree was not necessarily entitled to full/faith and credit but did extend “color of title” to the Caswells.
The purpose of the Uniform Child Custody Jurisdiction Act is to promote cooperation between the courts of various states so the state that can best serve the interests of the child will decide the matter. It is designed to discourage continuing controversies and avoid competition and conflict between the courts of the various states. Ark. Stat. Ann. § 34-2701. The Act recites several circumstances that allow Arkansas to decide such child custody cases; for example, if Arkansas is the “home state” of the child within six months before the action was commenced, Arkansas would have jurisdiction. None of the circumstances as set forth in Ark. Stat. Ann. § 34-2703 exist in this case that require Arkansas to take jurisdiction. It is undisputed that the LeGuin children have never been to Arkansas.
The chancellor correctly found that since the only contact with Arkansas is that the father has moved here, Arkansas did not have jurisdiction in this matter. It is irrelevant to us whether Louisiana, New York, Pennsylvania or Oklahoma would be the best forum. The question is whether Arkansas had to take jurisdiction, and it did not.
Affirmed.
Purtle, J., not participating.
34-2708. Jurisdiction, (a) A court of this State which is competent to dedde child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this State is the home state of the child at the time of commencement of the proceeding, or has been the child’s home state within six (6) months before commencement of the proceeding . . .
(2) it is in the best interest of the child that a court of this State assume j urisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with this State, and there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(3) the child is physically present in this State and the child has been abandoned or it is necessary in an emergency to protect the child ...
(4) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.
(b) except under paragraphs (3) and (4) of subsection (a), physical presence in this State of the child, or of the child and one (1) of the contestants, is not alone sufficient to confer j urisdiction on a court of this State to make a child custody determination. | [
-80,
108,
-27,
60,
11,
96,
58,
-72,
114,
-109,
101,
-47,
-21,
91,
-123,
121,
83,
107,
97,
121,
-47,
-73,
87,
64,
-39,
-13,
-79,
79,
-77,
105,
101,
-42,
72,
96,
-118,
-43,
66,
107,
-121,
-100,
-94,
32,
-69,
40,
-48,
-61,
36,
105,
90,
15,
21,
-113,
-9,
40,
123,
-51,
-20,
46,
-39,
-92,
16,
16,
74,
23,
127,
6,
-111,
36,
-110,
36,
64,
60,
-128,
57,
-95,
-20,
115,
-76,
-98,
117,
71,
25,
-87,
102,
103,
33,
-124,
-9,
-72,
-120,
110,
63,
13,
-90,
-101,
40,
107,
7,
-89,
-76,
116,
-48,
-117,
-6,
106,
69,
86,
-12,
36,
-113,
-106,
-95,
-60,
105,
28,
2,
-30,
97,
112,
85,
-37,
-26,
85,
71,
58,
-101,
-66,
-46
] |
Steele Hays, Justice.
In June 1981 the Arkansas State Highway Commission filed condemnation proceedings against three outdoor advertising signs erected and maintained by Roberts Enterprises, Inc. under permits from the Highway Commission and leases from landowners adjacent to Interstate 40 in Conway County. The Highway Commission alleged the billboards were non-conforming and the taking was necessary to preserve natural beauty and promote health, safety and welfare pursuant to the Arkansas Highway Beautification Act.
In response, Roberts Enterprises, Inc. moved the Court to dismiss the complaint, strike the declaration of taking, and issue a writ of mandamus directing the Highway Commission to conduct an administrative hearing in accordance with the Administrative Procedures Act. The motions were denied and Roberts Enterprises, Inc. has appealed.
We do not reach the arguments raised because no final order has been entered by the trial court. See Rule 2, Rules of Appellate Procedure. The denial Of a motion to dismiss an action is not a final judgment from which an appeal will lie. Wicker v. Wicker, 223 Ark. 219, 265 S.W.2d 6 (1954). In order for a judgment 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. McConnell v. Sadle, 248 Ark. 1182, 455 S.W.2d 880 (1970). Piercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110 (1943). Here, the order does none of those and we are without jurisdiction to hear the appeal. Arkansas Savings & Loan Association v. Cornell Savings & Loan Association, 252 Ark. 264, 478 S.W.2d 431 (1972).
The appeal is dismissed.
Adkisson, C.J., not participating. | [
-73,
-20,
-44,
60,
-117,
64,
48,
-66,
81,
-95,
125,
83,
-81,
-22,
16,
123,
-21,
111,
-11,
121,
-43,
-93,
119,
97,
114,
-9,
-45,
-41,
51,
-49,
-12,
116,
76,
97,
-54,
-107,
70,
-56,
-51,
-100,
-50,
1,
-104,
108,
-23,
-120,
24,
-85,
82,
-117,
85,
-100,
-29,
43,
27,
-61,
-23,
44,
-37,
-83,
80,
-72,
-118,
93,
127,
6,
33,
-92,
-103,
7,
88,
120,
-108,
49,
9,
-24,
115,
-74,
-121,
68,
73,
25,
8,
50,
-29,
3,
17,
-17,
-88,
-104,
6,
122,
-115,
-90,
-62,
25,
75,
3,
-105,
-75,
121,
2,
-121,
-2,
-17,
-99,
85,
-20,
-117,
-54,
-76,
-79,
39,
57,
4,
9,
-21,
-123,
16,
117,
-49,
-10,
94,
87,
51,
-33,
-114,
-108
] |
George Rose Smith, Justice.
In March, 1981, Michael earner’s dwelling house was, according to the jury’s verdict, totally destroyed by fire. In October, 1981, Carner brought this action upon his fire insurance policy, issued by the appellant, to recover the amount of his loss, $49,600. The insurance company defended on the grounds that the loss was not total and that Carner had intentionally set the fire. Upon the jury’s verdict for Carner the trial court entered judgment in his favor for $49,950, plus the statutory 12% penalty and a $15,000 attorney’s fee. None of the insurer’s three points for reversal can be sustained.
First, on February 12, five days before the case was to be tried before a jury and after the issues had been joined, the defendant filed a counterclaim asserting that on the preceding day it had paid $29,459.78 on two delinquent mortgages on the insured property, had taken assignments of the mortgage notes, and was entitled to foreclose the mortgages, and that the case should be transferred to equity for the foreclosures. After a hearing two days before the scheduled trial the court denied the motion to transfer.
The motion was properly denied. The insurer waited almost a year after the fire before paying off the mortgages. Under ARCP Rule 13 (d) the counterclaim could have been asserted in a separate action, because it was acquired after the issues had been joined. The eleventh-hour payments upon the notes and the motion to transfer could have been regarded by the trial court as a maneuver to avoid a j ury trial rather than as a counterclaim which the insurer felt compelled to assert in the circuit court. Moreover, the jury’s verdict has rendered the question moot. We find no prejudicial error.
Second, appellant argues that the amount of the mortgages was payable in any event and therefore should not have been included in the calculation of the 12% penalty. There was, however, no offer by the insurer to confess judgment for the mortgage debts. To the contrary, it took assignments and sought foreclosure. The jury’s verdict for the full amount was certainly for earner’s benefit, since it exonerated him from the defense of arson and confirmed the appellant’s ultimate liability for the amount of the mort gage debts. See Farm Bureau Mut. Ins. Co. v. Shaw, 269 Ark. 757, 600 S.W.2d 432 (Ark. App. 1980).
Third, it is argued that the $15,000 attorney’s fee is excessive, primarily because plaintiff’s counsel had been employed upon a one-third contingent fee contract. Admittedly, the allowance of the fee in a case of this kind should not be based on a speculative or contingent basis. Equitable Life Assur. Society v. Rummell, 257 Ark. 90, 514 S.W.2d 224 (1974). Here it was not so based. Three attorneys testified that a one-third contingent contract is reasonable in a case of this kind when the defense is arson. The insurer offered no proof to the contrary. The trial judge stated that in fixing the fee he had not considered any basis of contingency or percentage. None of the testimony at the jury trial has been abstracted; so we do not share the trial judge’s advantageous position in arriving at the proper amount. We cannot say that the $15,000 fee is unreasonable.
Affirmed. | [
-48,
-6,
-40,
-84,
-120,
32,
58,
-40,
-54,
68,
-73,
-37,
-7,
-63,
21,
47,
-74,
121,
-59,
96,
-108,
-93,
23,
98,
-2,
-5,
81,
-59,
-68,
77,
116,
-43,
12,
48,
-64,
-41,
-90,
-118,
69,
112,
78,
-122,
-101,
101,
-39,
64,
48,
-37,
116,
11,
33,
-65,
-29,
44,
25,
-53,
13,
40,
-69,
57,
-64,
56,
-126,
13,
127,
5,
-79,
37,
-98,
67,
-8,
46,
-108,
53,
1,
-56,
115,
-74,
-122,
68,
103,
-102,
5,
100,
102,
49,
101,
-19,
-24,
-119,
42,
71,
-113,
-82,
-110,
24,
3,
14,
-73,
-97,
100,
8,
22,
-20,
-12,
21,
77,
108,
17,
-114,
-44,
-77,
-113,
110,
-102,
-125,
-49,
55,
-80,
112,
-49,
-96,
94,
69,
115,
-37,
14,
-4
] |
Robert H. Dudley, Justice.
The prosecutrix reported to the police that she had been raped but about two weeks later she told the police, in a recorded statement, that she wanted the charge against appellant dismissed. The charge was not dismissed and shortly before trial the State moved to prohibit the appellant from cross-examining the prosecu trix about the matter. At the hearing on this threshold motion the prosecutrix testified that friends of the appellant had offered to pay her medical bills of $70 to $90 if she agreed to have the charge dismissed and she agreed. She testified that in furtherance of that agreement she made the'recorded statement to the police. In addition, she testified that she neither got the money nor were her medical bills paid. The threshold motion was granted and the appellant was prohibited from cross-examining the prosecutrix about attempting to have the charges dismissed. The appellant was tried, convicted and sentenced to 31 years in prison. We reverse and remand. Jurisdiction is in this court pursuant to Rule 29 (1) (b).
The trial judge has considerable discretion in determining the scope of cross-examination. Rules 403 and 611 (b) Unif. Rules of Evid., Ark. Stat. Ann. § 28-1001 (Repl. 1979); Shepherd v. State, 270 Ark. 457, 605 S.W.2d 414 (1980). However, we have consistently taken a broad view of the right of an accused in a criminal prosecution to be confronted with the witness against him. Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981). This is because cross-examination is not solely a means to test the truth of the witness’ direct testimony but is also the principal means by which the credibility of a witness is evaluated. A broad view of cross-examination is especially important where it might reveal bias on the part of a key witness. Simpson v. State, supra; Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976); Haight v. State, 259 Ark. 478, 533 S.W.2d 510 (1976).
Here, if the cross-examination had been allowed, the jury would have been informed of the prosecutrix’s attempt to dismiss the charges in exchange for the payment of her medical bills. The jury may have considered the evidence of attempted dismissal inconsistent with her direct testimony that she had been raped and probative of the truthfulness of that testimony. In addition, the jury may have found her to be less credible if they thought she was biased since she was unable to extort an agreed payment. On the other hand, the jury may have thought that the underlying reasons for her actions were well founded and that the evidence supported both her testimony on direct and her credibility. Thus, the evidence was relevant and would have aided the jury in its evaluation of the prosecutrix’s testimony. For these reasons, the cross-examination should have been allowed.
We find no merit in the other points argued on appeal.
Reversed and remanded. | [
-112,
-24,
-124,
-99,
43,
-31,
-80,
-110,
99,
-93,
55,
119,
-19,
70,
4,
127,
-94,
125,
85,
105,
-41,
-78,
39,
43,
-14,
-78,
113,
91,
-65,
-49,
-28,
-108,
77,
120,
-62,
-43,
102,
-54,
-9,
80,
-114,
22,
-120,
-60,
98,
-38,
96,
49,
98,
11,
117,
-98,
-5,
41,
28,
-58,
-120,
56,
74,
-67,
96,
37,
-102,
13,
-1,
52,
-93,
118,
-98,
33,
-14,
63,
-40,
49,
1,
-18,
114,
-106,
-110,
84,
79,
-103,
-100,
34,
98,
17,
-43,
-18,
72,
-87,
63,
63,
-115,
-89,
-104,
104,
67,
12,
-65,
-103,
68,
16,
38,
-28,
-5,
-100,
93,
108,
3,
-49,
-106,
-79,
79,
100,
28,
126,
-17,
37,
16,
117,
-49,
114,
92,
86,
123,
-37,
110,
-106
] |
Robert H. Dudley, Justice.
Mamie Staggs devised a life estate in real estate to her son, appellant James Lynn Staggs, with the remainder to appellees, James Larrell Staggs, David Lynn Staggs and Phillip Staggs. Appellant sought a partition of the lands or a commutation of his life estate to a sum certain in money. The trial court granted appellees’ motion for summary judgment. We affirm. Jurisdiction is in this Court within the purview of Rule 29 (1) (a) because the case requires the interpretation of a statute and the construction of the Constitution of Arkansas.
Under Ark. Stat. Ann. § 34-1801 (Supp. 1981) one who holds a life estate in land by virtue of dower or curtesy may petition to have it partitioned or commuted, or both; and, unless great prejudice is shown to the other owners, the petition is granted. Gibson v. Gibson, 264 Ark. 418, 572 S.W.2d 146 (1978). However, under the same statute, one who acquires a life estate by will or by deed does not have the same right of partition or commutation. Bowman v. Phillips, 260 Ark. 496, 542 S.W.2d 740 (1976).
Appellant contends this dichotomy denies the owner of a life estate created by will or deed the equal protection of and equal rights under the law as guaranteed by Article II, §§ 3 and 18 of the Constitution of Arkansas and under similar provisions of the Constitution of the United States. He argues that this distinction serves to discriminate in an invidious and irrational manner.
While the possessors of the two types of life estates hold identical interests, the life estates can be fairly and rationally distinguished on the basis of their origin. A life estate created by deed is the result of an intentional act of the grantor to accomplish some purpose; for example, to impose spendthrift protection against a life tenant’s squandering of his estate. Similarly, a testamentary life estate is intentionally created by the testator. Separate and distinct is the dower or curtesy life estate which is an estate created by operation of law.
A statute which provides a cause of action for partition or commutation of a life estate created by will or deed would serve to thwart the intent of the testator or grantor. However, where the life estate is created by operation of law, the statutory cause of action for partition or commutation by a life tenant does not contravene an expressed intent. The distinction is fair and rational. Ark. Stat. Ann. § 34-1801 (Supp. 1981), as applied in this case, is not violative of Article II, §§ 3 and 18 of the Constitution of Arkansas, nor is it contrary to similar provisions of the Constitution of the United States.
Affirmed. | [
-31,
-18,
-35,
124,
8,
32,
42,
-70,
115,
-22,
37,
115,
109,
91,
20,
105,
115,
-7,
-31,
106,
-11,
-73,
7,
73,
-46,
-13,
-79,
-59,
-77,
105,
116,
87,
76,
96,
-54,
85,
-57,
102,
-19,
30,
-82,
72,
10,
96,
88,
65,
48,
-29,
80,
9,
69,
-113,
-10,
-87,
57,
-56,
104,
46,
91,
-88,
-56,
48,
-116,
-121,
127,
3,
49,
36,
-80,
33,
72,
14,
-104,
49,
0,
-8,
115,
54,
-106,
116,
107,
-103,
40,
102,
-30,
0,
40,
-17,
-112,
-104,
78,
-1,
-123,
-90,
-118,
121,
67,
9,
-65,
-100,
121,
4,
74,
-12,
-28,
-107,
22,
108,
13,
-113,
-42,
-93,
41,
48,
-108,
19,
-13,
69,
96,
117,
-50,
-30,
85,
71,
127,
-101,
-115,
-39
] |
Steele Hays, Justice.
Appellant was convicted of aggravated robbery in a jury trial on February 17, 1982, and received an extended term of imprisonment from a finding that he had been convicted of four previous felonies. On appeal, he raises three points in arguing that the trial court erred in its application of the habitual offender statute, Ark. Stat. Ann. § 41-1001 (Repl. 1977). We find no merit in the arguments.
Appellant first insists that it was unclear from the state’s evidence whether an attorney was present for the past convictions used in the sentencing. The state presented evidence of six convictions, one from Arkansas, and five from Oklahoma. The appellant objects to the five convictions from Oklahoma, where each judgmentand sentence of conviction was in printed form stating the appellant was “. . . duly represented at all appearances by his attorney of record.” He argues that Reeves v. Mabry, 480 F. Supp. 529 (1979) holds that unless the evidence of prior convictions shows the defendant had been represented by counsel there is a presumption that he was denied effective assistance of counsel and no convictions can be used for enhancement purposes. We agree with appellant’s statement of Reeves, however, here the record is not silent or ambiguous as to the defendant’s representation. The record clearly states on all of the appellant’s judgment and sentence forms that he was represented by counsel.
As to the printed nature of the judgment and sentence forms, we stated in Clem & Gilbert v. State, 254 Ark. 581, 495 S.W.2d 517 (1973):
The appellants argue that the reference made to the presence of counsel in the certified copies of prior convictions was in printed form. Even so, we cannot assume that the Texas courts would use printed forms stating that counsel was present when in fact none was present.
We dispensed with the same argument recently in Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982).
Appellant next submits that four of the previous offenses could have arisen out of the same set of circumstances and should be treated as one conviction rather than four. The appellant cites no authority or rationale for this argument, other than “the sentences all run concurrently and probably should be considered as one rather than four.” We stated in Blackmon v. State, 272 Ark. 157, 612 S.W.2d 319 (1981), “Each plea of guilty to separate offenses, though the pleas may be entered simultaneously and though concurrent sentences are imposed, constitutes a separate prior conviction for purposes of Ark. Stat. Ann. § 41-1001 (2)”.
Nor does appellant’s suggestion that the crimes appear to have arisen out of the same set of circumstances have any merit. Ark. Stat. Ann. § 41-1001 (3) provides only one situation for consolidation of offenses:
For the purpose of determining whether a defendant has previously been convicted or found guilty of two [2] or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt.
Also, the purpose of that provision, as outlined in the Commentary to § 41-1001, indicates the legislative intent could not be expanded for the reason the appellant suggests.
Although prior to the Code’s enactment most circuit judges treated convictions for burglary and grand larceny as a single prior conviction for purposes of habitual offender sentencing, a few apparently considered such a disposition to constitute two convictions. To achieve some parity of treatment in calculating the number of prior convictions, subsection (3) consolidates a burglary and the offense that was its object into a single felony conviction for habitual offender purposes.
Appellant argues that it was unclear from the state’s evidence whether the convictions were misdemeanors or felonies. The Arkansas conviction was for burglary, and carried a sentence of 25 years and is undisputedly a felony. The other 5 convictions from Oklahoma carried sentences ranging from 3 to 10 years. Ark. Stat. Ann. § 41-1002 (Repl. 1977) responds directly to this point:
Previous conviction in another jurisdiction. For purposes of Section 1001, a conviction or finding of guilt of an offense in another jurisdiction shall constitute a previous conviction or finding of guilt of a felony if a sentence of death or of imprisonment for a term in excess of one [1] year was authorized under the laws of the other jurisdiction.
The appellant finally argues that the evidence is insufficient to support the guilty verdict for the charge of aggravated robbery. He claims there was conflicting testimony from the witnesses and insufficient evidence to prove he employed or threatened to immediately employ physical force on another, as robbery is defined in Ark. Stat. Ann. § 41-2103 (Repl. 1977). The record shows that the contradictions were minor and the testimony generally consistent. Resolution of the conflicts and the question of credibility are for the jury. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). As to the threat of physical force, both witnesses, employees in the drug store that was robbed, testified that guns were pointed at them or held on them during the course of the robbery. Despite the absence of a specific threat to shoot, such behavior creates an implied threat of physical force. In determining the sufficiency of the evidence to show aggravated robbery, we look only to see if, viewed in the light most favorable to the state, there was substantial evidence to support the charge. Beed, supra.
Finding no error in the proceedings below, we affirm. | [
112,
-18,
-27,
-67,
11,
66,
58,
60,
24,
-93,
44,
19,
-83,
-50,
64,
121,
81,
105,
117,
96,
-43,
-73,
119,
65,
-26,
-13,
-55,
-44,
-75,
75,
-28,
-44,
12,
32,
-54,
-43,
6,
74,
-121,
92,
-50,
1,
-72,
93,
120,
1,
52,
103,
44,
7,
53,
-98,
-13,
58,
48,
-54,
105,
44,
75,
-83,
88,
-79,
-98,
77,
-35,
20,
-77,
4,
-70,
3,
-48,
46,
-100,
59,
0,
-24,
115,
-90,
6,
-12,
109,
24,
13,
110,
98,
32,
21,
-25,
-96,
-127,
46,
63,
-99,
-90,
-40,
17,
75,
45,
-106,
-107,
127,
20,
7,
-6,
124,
20,
29,
108,
9,
-50,
-112,
-79,
-55,
96,
-60,
-5,
-21,
33,
-112,
113,
-60,
-26,
84,
87,
112,
-37,
-114,
-44
] |
Robert H. Dudley, Justice.
On the night of October 20, 1981, Linda Smith was employed as the sole attendant of the Nic-Nac convenience store in West Memphis. Miss Smith’s attention was riveted on a woman who entered the store and appeared to be drunk. Suddenly a man with a gun loomed and told Miss Smith it was a hold-up. The woman immediately shoved Miss Smith to the cash register and took the money. The man then shot Miss Smith in the chest; she brought her arm up to her chest and he shot her in the arm; she turned and he shot her twice in the back. The robbers fled, Miss Smith called the police, asked for help and accurately described both of the robbers. On October 26, 1981, a warrant was issued for the arrest of Dorothy Gatewood who confessed two days later. Upon confessing, she stated that the appellant, David Lee Allen, was the man who had been with her at the robbery and was the one who had shot Miss Smith. She signed an affidavit implicating appellant. The police officials immediately gave their information and the affidavit to the deputy prosecuting attorney who, in turn, filed an information in municipal court charging appellant with the crimes of aggravated robbery, battery in the first degree and felon in possession of a firearm. The clerk of the municipal court issued a warrant for the arrest of appellant who was arrested at 3:20 that afternoon and was given a valid Miranda warning at 4:20 p.m. Appellant confessed to his part in the crimes and the interview was concluded by 5:10 p.m. Linda Smith positively identified appellant as the one who robbed and shot her. Appellant was found guilty on all three charges. He was sentenced to life imprisonment on the aggravated robbery conviction. Jurisdiction is in this court pursuant to Rule 29 (1) (b). We reverse and remand for a new trial because prejudicial error was committed.
Appellant contends that the trial court erred in excluding the rebuttal testimony of a defense investigator, Martin Klindworth. We agree. Appellant had invoked the rule pursuant to Unif. R. Evid. 615, Ark. Stat. Ann. § 28-1001 (Repl. 1979), yet this witness had remained in the courtroom during most of the trial.
Appellant’s purpose in calling Klindworth was to rebut the following testimony: Dorothy Jean Gatewood, the accomplice of appellant and a State’s witness, testified on cross-examination that she had talked with Martin Klindworth. She denied, however, telling him that she had made an agreement in exchange for her testimony. In addition, she denied having told the investigator that she heard unusual noises in the interrogation room when she was present when appellant was brought in for questioning. Klindworth’s proffered testimony goes to the credibility and bias of witness Gatewood as Klindworth would have testified that in a prior statement she said an agreement had been reached with the prosecutor by which she would not have to stand trial if she testified against appellant. He also would have testified that she had previously stated she heard unusual noises during the interrogation of appellant.
The State argues that the proffered evidence was sought to impeach Gatewood on a collateral matter and therefore was not admissible. However, the first part of the proffer concerning an agreement to testify goes to possible bias and the bias of a witness is not a collateral matter. Bias may be inquired into on cross-examination and may be proven extrinsically. Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978). See generally, McCormick’s Evidence § 36 (1972 ed.).
The real issue is whether the witness’ testimony should have been excluded for violation of the rule. In Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975), our law was clearly set out as follows:
The rule consistently applied by this court is that a violation by a witness of the rule of sequestration of witnesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness. Harris v. State, 171 Ark. 658, 285 S.W. 367; Hellems v. State, 22 Ark. 207; Golden v. State, 19 Ark. 590; Pleasant v. State, 15 Ark. 624. The power to exclude the testimony of a witness who has violated the rule should be rarely exercised. We have been unable to find any case in which this court has sustained the action of a trial court excluding the testimony of such a witness. While the witness is subject to punishment for contempt and the adverse party is free, in argumen t to the j ury, to raise an issue as to his credibility by reason of his conduct, the party, who is innocent of the rule’s violation, should not ordinarily be deprived of his testimony. Harris v. State, supra; Aden v. State, 237 Ark. 789, 376 S.W.2d 277; Mobley v. State, 251 Ark. 443, 473 S.W.2d 176.
Although the trial court has some discretion in the matter, its discretion is very narrow and more readily abused by exclusion of the testimony than by admitting it. Harris v. State, supra. It has even been held that failure to make a formal proffer of the testimony of a witness excluded upon no basis other than his violation of a sequestration order, without the knowledge, procurement or consent of defendant or defense counsel cannot be used to deprive the accused of his constitutional right to compulsory attendance of witnesses in his behalf. See Braswell v. Wainwright, 463 F.2d 1148 (5 Cir., 1972). See Art. 2 § 10, Constitution of Arkansas.
We have frequently expressly reaffirmed Williams, supra, a 1975 case. Norris v. State, 259 Ark. 755, 536 S.W.2d 298 (1976); Woodard v. State, 261 Ark. 895, 553 S.W.2d 259 (1977); McCorkle v. State, 270 Ark. 679, 607 S.W.2d 655 (1980). Two cases are similar to the case at bar and in both we reversed. Norris v. State, supra; and Mobley v. State, 251 Ark. 448, 473 S.W.2d 176 (1971). The federal courts interpret Federal Rule of Evidence 615 in the same manner. See 3 Weinstein’s Evidence § 615 [03].
In the case before us the need for witness Klindworth’s rebuttal testimony did not arise until Dorothy Gatewood testified late in the trial. Appellant’s attorney argues that until that time he did not know that her testimony would be inconsistent with the prior statements she had given Klindworth. The attorney saw no reason to have Klindworth listed as a witness and excluded from the courtroom. There was no connivance between appellant, or his attorney, and the excluded witness. The testimony regarding bias should not have been excluded. We cannot say that it is manifest that appellant was not prejudiced when he was deprived of the excluded testimony. Thus, we must reverse on this point. Graves v. State, 256 Ark. 117, 505 S.W.2d 748 (1974).
The State also contends that Klindworth’s testimony was properly excluded as hearsay. Since the testimony was offered for the purpose of showing that witness Gatewood had made prior inconsistent statements rather than for the truth of the matter asserted, there is no merit in this argument.
Since the case will be remanded we now discuss the other points raised in this appeal which will likely again arise upon retrial.
Appellant contends that the warrant of arrest was technically illegal. Appellant then inductively reasons that since the arrest warrant was illegal, it must follow that the arrest was illegal and that, in turn, tainted the confession to the extent that it is “fruit of the poisonous tree.” We agree with the trial court that the confession was admissible in evidence.
Rule 7.1 (c), A.R.Cr.P. provides:
The clerk of a court or his deputy may, when authorized by the judge of that court, issue an arrest warrant upon the filing of an information or upon affidavit sworn to by the complainant and approved by the prosecuting attorney. Any such information or affidavit shall be indorsed by the prosecuting attorney approving the issuance of the warrant.
The deputy prosecuting attorney filed an information and the arrest warrant was issued on the basis of the information. The defense filed a motion to suppress contending that the municipal judge had not caused an order to be entered authorizing the clerk to issue arrest warrants upon the filing of an information. The State failed to prove that an order existed but did prove that the municipal judge had authorized the clerk to issue a warrant upon the filing of an information. We do not find it necessary to decide whether the judicial officer must enter an order to authorize this procedure. Nor do we find it necessary to decide whether such authorization must be specifically for each case or whether it can generally be made applicable to all cases filed. The confession in this case was admissible in any event.
The Supreme Court of the United States in Wong Sun v. United States, 371 U.S. 471 (1963) held that the Fourth Amendment exclusionary rule applies to statements obtained following an illegal arrest the same as it does to illegally seized evidence. However, Wong Sun squarely rejected a simple "but for” test that would render inadmissible all statements given after an illegal arrest. Brown v. Illinois, 422 U.S. 590 (1975), similarly rejected the "but for” test and mandates an evaluation of each case in the light of the policy served by the exclusionary rule, that is, deterring lawless conduct by officers by removing the incentive to disregard those laws.
Here, a warrant of arrest was not constitutionally required. See e.g., Payton v. New York, 445 U.S. 573 (1980). Probable cause for the arrest clearly existed. Thus, the arrest would have been valid without a warrant. The illegality of the warrant here served no quality of purposefulness. There was no misuse of power to gain the confession. The police gained no advantage by use of the invalid warrant. The police should not be penalized for attempting to afford an unnecessary procedural safeguard to appellant. Therefore there is no policy reason to apply the exclusionary rule under the Fourth Amendment. We decline to apply the Fourth Amendment exclusionary rule.
Appellant also contends that the confession was admitted in violation of his Fifth Amendment right against self-incrimination. Before a confession can be admitted into evidence, the State must make a prima facie showing that the accused knowingly, voluntarily and intelligently waived his right to remain silent. Miranda v. Arizona, 384 U.S. 436 (1966); Hignite v. State, 265 Ark. 866, 581 S.W.2d 552 (1979). On appeal we review the evidence and make an independent determination of the issue of voluntariness. Davis v. North Carolina, 384 U.S. 737 (1966); Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981). The trial court’s determination as to voluntariness will only be set aside where it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974). At the Denno hearing the State’s proof showed that appellant was advised of his Miranda rights and that he knew, understood and accepted those rights. He then signed a waiver of rights form and agreed to talk to the police. The waiver of rights form was admitted into evidence. The appellant gave an oral confession to the police which was not transcribed. The appellant also gave a statement in his own handwriting in which he admitted shooting the victim three times. The handwritten statement was introduced into evidence at the trial. All of the police officers testified that appellant, while making his statement, was not mentally or physically mistreated, nor was he forced or coerced into making a statement and that appellant was not physically abused nor did he ask for an attorney. The testimony was that about 30 minutes elapsed between the execution of the waiver of rights and the actual making of the statement.
The appellant testified that the confession came only after threats, force and intimidation. The State rebutted his testimony with numerous witnesses who had been near the interrogation room and heard no unusual sounds. The trial court was in a superior position to observe the manner and demeanor of the witnesses. It was for the trial court to weigh the evidence and resolve the credibility of the witnesses. Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981). The trial court’s determination that the confession was voluntarily given is not against the preponderance of the evidence. The trial court ruled correctly on this issue. The confession was admissible in evidence.
There is no merit in appellant’s other arguments.
Reversed and remanded. | [
16,
-21,
-31,
-35,
57,
-31,
56,
-70,
98,
-46,
-12,
-13,
-87,
103,
21,
105,
63,
125,
-43,
97,
-78,
-89,
5,
35,
-14,
115,
107,
-59,
-93,
-37,
-4,
-107,
77,
112,
-50,
73,
102,
-54,
-25,
90,
-114,
-79,
-31,
-15,
-6,
-126,
96,
59,
-28,
7,
-79,
-100,
-77,
-86,
20,
78,
9,
41,
75,
-85,
64,
123,
-54,
5,
-3,
20,
-77,
-90,
-82,
5,
-40,
0,
-40,
49,
32,
120,
50,
-106,
-126,
116,
125,
27,
12,
32,
98,
-92,
-100,
77,
-88,
-127,
46,
114,
-99,
-121,
26,
72,
65,
36,
-73,
29,
110,
21,
14,
-12,
-10,
79,
91,
104,
5,
-50,
-80,
-111,
77,
56,
-118,
-69,
-21,
23,
48,
117,
-49,
-86,
92,
68,
119,
19,
-118,
-107
] |
Steele Hays, Justice.
This case arises from a defamation suit by the appellant against the Times Southwest Broadcasting, Inc., d/b/a KFSM-TV and Tom Eveld. The court gave a directed verdict for both appellees and from that decision, appellant brings this appeal. We agree with the trial court decision and will discuss first, the arguments raised in the case against KFSM.
In February of 1980, KFSM devoted a segment of its news broadcast to the appellant, Sheriff of Franklin County. A number of statements were made concerning the Sheriff, including the fact that his office had been investigated by a Grand Jury, that he had had two lawsuits filed against him with one still pending, and a state wildlife officer had written a memo to his superior relating threats he said the Sheriff had made. All of the above statements are true, and the Sheriff is not contesting the truth of these statements. Rather, he claims that the broadcast intended to convey to the viewer that one of the lawsuits and the allegations of the wildlife officer were two of the matters considered by the Grand Jury, when in fact this was not the case. He argues that the reporter knew these two matters weren’t before the Grand Jury and therefore, there was actual malice on the part of KFSM, as required by New York Times v. Sullivan, 376 U.S. 254 (1964), in recovery for defamation by a public official.
By a review of the transcript of the recording, we find no such intent or implication. The broadcast began with a statement that the County Grand Jury had investigated a number of complaints against the Sheriff’s Department. This was true and no mention is made of what allegations were investigated. The broadcast continued as follows:
[Quorum court member]:
I would like to see a Federal Grand Jury, I think that is the only way we are ever going to get it cleared up, because people don’t have any faith in our local system around here any more.
[Reporter]:
The [quorum court member] called for a Federal Grand Jury investigation following a quorum court meeting last fall. He and a number of other county residents don’t think the County Grand Jury dug deeply enough into the way this man runs the Sheriff’s Department. Bob Pritchard has been Sheriff of Franklin County for six years and his father before that. Pritchard has been re-elected two times, usually without a serious challenge. In the last election, he had three opponents, but Pritchard managed to get enough of the county’s eighty-two hundred registered voters to avoid even a run-off. Still, it hasn’t all been smooth sailing.
The reporter then related those matters in contention by the appellant.
We find no statements in this portion of the broadcast that are defamatory on their face, nor does the appellant point to any. We look then to see if there is defamation by innuendo. We stated in Wortham v. Little Rock Newspapers, Inc., 273 Ark. 179, 618 S.W.2d 156 (1981), “The words to be defamatory in such cases should be susceptible of two meanings, one defamatory and one harmless. In that regard, we read the words in their plain and natural meaning, as they would be interpreted by a reader of the newspaper considering the articles as a whole.”
There are no statements made here that are not true. The Sheriff had been investigated by the Grand Jury because of a number of complaints received by the judge who had called it, the Sheriff had had a civil rights suit filed against him, and the wildlife officer had written a memo to his superior, relaying threats the Sheriff had made. The comments by the reporter on these two incidents makes no reference to a connection between them and the Grand Jury investigation. The initial Grand Jury comment is followed by other items, including the popularity of the Sheriff in the county. The only connection between the Grand Jury and these two incidents is their inclusion in the same news broadcast. Also, there is no testimony that the reporters intended to convey the message appellant suggests. Reading the article as a whole and taking the words in their plain meaning, we cannot find them defamatory. As we stated in Wortham, supra, “It would be a strained and forced interpretation to say that [the plaintiff] was defamed, a posture that the law does not take in such a case.” Because we find no defamation here, it follows that we find no actual malice.
The appellant also argues that another portion of the broadcast was false and the reporter should have known it was false. In that portion the reporter stated that some people were saying the Sheriff had had influence over the Grand Jury investigating him. Appellant claims the reporter’s two sources were unreliable and that the reporter should have known that. One of the sources was subsequently indicted and although the reporter testified she wasn’t aware of this, the appellant claims the reporter should have known this because it was public record. The other source had two children who had been indicted. The reporter testified she was aware of this as to one of the children but could not remember about the other.
Since New York Times v. Sullivan, the Supreme Court has outlined further the guidelines for interpreting “actual malice” — the knowledge that a statement was false or the reckless disregard for its falsity. In Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967), the newspaper admitted it had not investigated the charges made, but the court held failure to investigate did not amount to the high degree of awareness of probable falsity demanded by Sullivan. And in St. Amant v. Thompson, 390 U.S. 727 (1968), the Supreme Court said reckless conduct wouldn’t be measured by what a reasonably prudent man would publish or investigate, but there must be sufficient evidence to show that the “defendant in fact entertained serious doubts as to the truth of the publication. . . . Failure to investigate does not in itself establish bad faith.”
There can be no serious doubt that the broadcast came well within these guidelines. The claims appellant makes about the sources are of questionable relevancy as to the reliability of these sources, and are not of the magnitude of “serious doubt.” And if perhaps only some doubt is raised, failure to investigate will not establish bad faith. There is no question but that proof of actual malice is absent here.
As to the appellant’s case about Eveld, some background information is necessary. Early in 1979, Eveld proposed to move his liquor store to another location, which the Sheriff opposed because he believed the change would create law enforcement problems. Considerable tension between the two men resulted, including rumors allegedly being spread about the appellant by Eveld. The conflict culminated in a confrontation in April, in front of Eveld’s liquor store. By the appellant’s own testimony, he admitted calling Eveld on the phone and telling him he was coming to his store to put an end to the things that Eveld had been saying. What precisely ensued after the Sheriff’s arrival is not clear. But again, by his own account he arrived at the store with his gun drawn. He said Eveld did not have a gun nor did he see any gun. He said they exchanged some heated remarks and that “ . . . [Eveld] got rather nervous, got to hollering and I swung with my fist and missed him. He went to the back of the car, and I did have my gun out, and he threw up his hand and I threw up mine, he hit the gun and hit the back of the car and run. To my knowledge when [Eveld] went around the corner, that is the last time I seen him.” Eveld subsequently filed suit against the appellant and that case is pending.
In Eveld’s version of the scuffle, he claims that appellant hit him with his pistol. The only variance in the allegations of Eveld concerning this scuffle that appellant raises on appeal, is that part which refers to the appellant hitting Eveld in the head with the pistol. The appellant argues that the jury might have found that Eveld had fabricated that part of the story.
The truth of the matter is a defense to a charge of defamation, but the exact truth is not required.
... [I]t is now generally agreed that it is not necessary to prove the literal truth of the accusation in every detail, and that it is sufficient to show that the imputation is substantially true, or as it is often put, to justify the “gist”, the “sting” or the “substantial truth” of the defamation. Thus an accusation that the mayor of a town has wasted $80,000 of the taxpayer’s money has been held to be justified by proof that he wasted $17,500, since there is no more opprobrium attached to the greater amount. Prosser, Handbook of the Law of Torts, 798-99 (4th ed. 1971).
One example of the application of this principle is in Smith v. Byrd, 225 Miss. 331, 83 So.2d 172 (1955) where a statement that a sheriff shot a man was justified by proof that he had acted in concert with a deputy who had actually shot him.
In this case, the defendant’s remarks were allegedly not precise in their truth. But the substance of the story is corroborated by the appellant himself and represents admitted misconduct on his part. Whether or not the appellant’s pistol actually came in contact with Eveld’s head, does not alter the gist or the “sting” of the statements. We find the truth of the defamation in this case meets the requirements for the defense of truth.
The appellant also contends that in defamation cases the judge is without authority to take the decision from the jury. The argument is without merit. We have affirmed defamation cases on summary judgment on more than one occasion: Lancaster v. Daily Banner-News Publishing Co., 274 Ark. 145, 622 S.W.2d 671 (1981), Wortham, supra; and we recently affirmed a defamation case on a directed verdict, Baker v. Mann, 276 Ark. 278, 634 S.W.2d 147 (1982).
In determining on appeal the correctness of the trial court’s action concerning a motion for a directed verdict by either party, the test is to take that view of the evidence that is most favorable to the party against whom the verdict is sought and to give it its highest probative value, taking into account all reasonable inferences deducible from it, and to grant the motion only if the evidence viewed in that light would be so insubstantial as to require that a jury verdict for the party be set aside. Dan Cowling and Associates v. Clinton Board of Education, 273 Ark. 214, 618 S.W.2d 158 (1981).
In viewing the evidence in this light, for the reasons already stated, we find that both the defendants provided more than substantial evidence from which to conclude that either no defamatory statements had been made, or if so, there was no actual malice. | [
52,
-20,
120,
-100,
8,
96,
122,
60,
90,
-29,
118,
83,
47,
-55,
13,
33,
-14,
61,
101,
105,
-61,
-73,
87,
-30,
-14,
55,
91,
-57,
-77,
79,
-12,
-4,
73,
-112,
74,
85,
70,
40,
-123,
-34,
-82,
0,
-71,
-13,
-36,
-64,
40,
59,
20,
79,
53,
-82,
-9,
42,
52,
-29,
9,
44,
75,
-82,
66,
113,
-102,
-59,
93,
2,
19,
6,
-104,
-121,
120,
62,
-47,
57,
8,
-24,
123,
-90,
-128,
-27,
41,
-55,
8,
38,
98,
17,
-35,
-27,
-84,
-119,
14,
-34,
29,
-25,
-104,
73,
107,
8,
-74,
-99,
112,
16,
11,
-6,
-27,
5,
29,
108,
2,
-58,
-106,
-95,
79,
-96,
30,
26,
-21,
-111,
80,
113,
-55,
-30,
92,
71,
50,
79,
-113,
-107
] |
Per Curiam.
Appellant Thomas Preston Williamson was convicted by a jury of murder in the first degree, Ark. Stat. Ann. § 41-1502 (Repl. 1977). He was sentenced to life imprisonment in the Arkansas Department of Correction. It is from that conviction that appellant brings this appeal.
Pursuant to Anders v. California, 386 U.S. 738 (1967), appellant’s counsel has filed a motion to be relieved as counsel and a brief stating there is no merit to the appeal. Appellant was notified of his right to file a pro se brief raising any point he desired. He has not filed such a brief. The State concurs that the appeal has no merit.
On February 22, 1981, the appellant shot Michael Murrah in a Texarkana parking lot. The next day he made a statement to the police admitting to the crime. Appellant subsequently filed a pretrial motion contending that he was mentally incompetent and as a result lacked the capacity to freely and voluntarily make a statement. After a hearing, the trial court ruled that the statement was voluntarily given. On appeal, this Court examines such a ruling to see if the State proved by a preponderance of the evidence that the statement was voluntarily given. State v. Branham, 275 Ark. 16, 627 S.W.2d 8 (1982); Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981); Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974). We make an independent determination of this issue considering the totality of the circumstances and affirm the trial court unless we can say the lower court was clearly wrong. Branham, supra; Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982); Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975). In this case there were psychologists’ reports which concluded that the appellant’s intellectual functioning was significantly impaired, but there was another report which found that the appellant had the mental capacity to understand the legal proceedings. The officer who took the statement testified that the appellant indicated that he understood his rights and was voluntarily waiving them. Where the voluntariness of a confession is in issue, any conflict in the testimony of witnesses is for the trial court to resolve. Harrison, supra; Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). Here, the trial judge considered the credibility of the witness and the conflicting psychological reports and concluded that appellant was capable of making a voluntary statement. We cannot say from an independent examination of the record that his finding was in error.
Even without appellant’s statement, there was ample evidence to support his conviction. Several witnesses saw him at the scene of the shooting and one witness saw him fire the shots. A ballistics expert testified that the bullets which killed the victim were fired from a gun belonging to appellant’s father. Although there was testimony that appellant may have been drinking at the time he shot Murrah and that he was mentally deficient as a result of long-term alcohol abuse, it was for the jury to decide if he was legally responsible for his actions. Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981).
Upon a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed.
Affirmed. | [
48,
-22,
69,
-98,
59,
97,
58,
60,
81,
-13,
-25,
115,
47,
-59,
16,
123,
107,
47,
117,
-7,
-58,
-74,
87,
65,
-6,
-77,
48,
-41,
51,
-50,
-28,
52,
77,
-80,
-54,
-47,
102,
-54,
-31,
92,
-114,
5,
-119,
64,
80,
-126,
48,
103,
84,
11,
49,
-98,
-21,
-86,
20,
-61,
-119,
44,
-53,
-82,
64,
17,
-120,
13,
-37,
4,
-77,
36,
-104,
71,
112,
58,
-40,
-79,
1,
-4,
51,
-106,
-126,
116,
111,
27,
44,
102,
-30,
1,
25,
47,
-23,
-120,
63,
127,
-99,
-89,
-40,
73,
107,
69,
-105,
-99,
123,
52,
14,
-2,
109,
77,
93,
108,
5,
-49,
-108,
-79,
-49,
108,
22,
75,
-21,
5,
2,
53,
-49,
-30,
92,
83,
122,
-37,
-118,
-80
] |
Per Curiam.
Appellant, Derrell L. Brinkley, by his attorney, has filed for a rule on the clerk.
His attorney, Jerry A. Rochelle, 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,
-20,
-11,
60,
10,
32,
48,
46,
65,
-21,
35,
83,
-91,
-53,
20,
105,
-45,
111,
85,
121,
-124,
-77,
119,
64,
38,
-13,
-31,
85,
53,
111,
-26,
-33,
76,
48,
-54,
-107,
70,
-56,
-115,
80,
-118,
1,
57,
-25,
-39,
9,
48,
57,
-48,
15,
113,
-2,
-31,
42,
30,
71,
-23,
44,
-19,
18,
80,
-15,
-101,
-115,
125,
20,
-79,
-60,
-97,
-121,
-4,
127,
-116,
56,
18,
-8,
48,
-90,
-122,
84,
13,
56,
8,
70,
102,
48,
-40,
-1,
-96,
-120,
22,
-66,
29,
-90,
-71,
104,
-53,
-19,
-106,
-75,
54,
80,
7,
124,
103,
-51,
93,
44,
-119,
-49,
-44,
-77,
31,
112,
-116,
11,
-21,
1,
16,
117,
-50,
100,
-36,
70,
19,
-109,
-98,
-92
] |
English, C. J.
On the third of September, 1881', Isaac- Z. Cooper was indicted in the Circuit Court of Lawrence county for removing mortgaged property, etc.
There were three counts in the indictment, the first count charging, in substance:
That said Isaac Z. Cooper, on the first day of June, 1881, in the county of Lawrence, etc., feloniously did remove beyond the limits of said county, one sorrel horse, of the value of fifty dollars, upon which sorrel horse then and there did exist a lien, by virtue of a deed of trust executed by the said Isaac Z. Cooper, on the thirteenth day of January, 1881, in favor of Gr. Kaufman, as trustee, for the benefit of E. Krone & Co., a firm composed of E. Krone and J. B. Oppeuheimer, which said deed of trust was endorsed as follows, to-wit:
“This instrument is to be filed, but not recorded.
“E. Krone & Co.,
“By Gabe.”
And was duly filed in the office of the Recorder of Deeds in and for said county of Lawrence; he, the said Isaac Z. Cooper, then and there not having the consent of the said Gr. Kaufman, trustee as aforesaid, or E. Krone & Co., so to ■do, against the peace, etc., etc.
The second count charged, in substance ;
That the said Isaac Z. Cooper, on the first day of June, 1881, in the county aforesaid, feloniously did secrete a certain sonel horse, of the value of fifty dollars, on which said sorrel horse then and there did exist a lien, by virtue of a deed of trust executed by the said Isaac Z. Cooper, on the thirteenth day of January, 1881. in favor of G. Kaufman, ■as trustee, etc., etc.
The remainder of this count was the same as the first.
The third count charged, in substance :
That the said Isaac Z. Cooper, on the first day of June, 1881, in the county aforesaid, feloniously did “sell, barter, ■or otherwise dispose of ” a certain sorrel horse, of the value of fifty dollars, on which said sorrel horse a lien then and there existed, by virtue of a certain deed of trust executed by the said Isaac Z. Cooper, on the thirteenth da}' of January, 1881, in favor of G. Kaufman, as trustee, etc., etc.
The remainder of this count was the same as the first and second.
The defendant entered a demurrer, in short, to the whole indictment, which the court overruled ' he was tried on the plea of not guilty, the jury found him guilty, and fixed his punishment at imprisonment in the penitentiary for two years. He filed a motion for a new trial, which was overruled, and he was sentenced in accordance with the verdict.
I. Did the court err in overruling the demurrer to the indictment? Did it charge against appellant any public offense?
Appellant was indicted under the Act of the third of x L ruary, 1875 (Acts of 1874-5, p. 129), which is as follows :
“Sec. 1. That sectiqn 1409 of Gantt’s Digest be and the same is hereby amended so as to read as follows: Any person, or persons, who shall hereafter remove beyond •the limits of this State, or of any county wherein the lien may be recorded, property of an}' kind, upon which a lien shall exist, by virtue of a mortgage, deed of trust, or by contract of parties, or by operation of law, or who shall sell, barter, or exchange, or otherwise dispose of any such property, Avithout the consent of the person or persons in AArhose favor such lien shall have been created or exists by Iuav, or Avho shall secrete the same, or any portion thereof, shall be deemed guilty of a felony,” etc.
The original act thus amended, passed December 21, 1846, provided that “Any person who shall remove beyond the limits of the State, or of any county wherein the lien may be recorded, property of any kind upon which a lien shall exist by virtue of a mortgage, deed of trust, or otherwise, as now prescribed by law, without the consent of the person in whose favor such lien shall have been created,, upon conviction thereof, shall be sentenced to hard labor in the penitentiary,” etc,
At the time the original act was passed, and at the time it was amended, under our system of registration, a mortgage, or dehd of trust, properly acknowledged and filed in the recorder’s office, was constructive notice to all persons, from the time of the filing. Gantt’s Dig. Secs. 860, 4288; Hannah v. Carrington, 18 Ark., 85; Oats v. Walls, 28 Ark., 248.
When the conveyance was so filed the lion was, in legal effect, for all purposes of notice, recorded. Such must have been the understanding of the Legislature when the acts were passed making it criminal to remove, etc., property on which a lien so existed. If the conveyance must actually be recorded before it is an offense to remove, secrete, sell, barter or exchange, or otherwise dispose of the property, it may be done without the commission of any crime, at any time between the filing of the instrument and . its actual registration. It is not to be supposed that the law-makers left open such a gap for the perpetration of wrong without punishment. There can be no good reason why the maker of a mortgage, or deed of trust should be punished for wrongfully removing or disposing of property covered by it, after the deed is actually recorded, and go unpunished for the same wrongful act, done after he has-solemnly executed and acknowledged the conveyance, and it has been filed for record, but before the recorder has had time or convenience to copy it on his record book. The latter is within the spirit of the statute, and as much within the mischief intended to be prevented by them as the former.
So, upon principle, we thinlc, a mortgage, or deed of trust, of personal property, filed in the recorder’s office, under'the provisions of the Act of the tenth of March, 1877, (Acts of 1877, p. 80), is a recorded lien within meaning and intention of the Act under which appellant Avas indicted, though, by the terms of the Lien Act, such conveyance is never to be actually recorded.
The Act provides that the mortgage, or trust deed, shall •be a lien on the property therein described, from the time of the filing, and the same shall be kept there for the inspection of all persons interested, and said instrument shall be, thenceforth, notice to all the ivorld of the contents thereof, without further record, except as hereinafter provided. Sec. 1.
The fourth section requires the recorder to keep a book, in Avliicli shall be entered a minute of mortgages and trust deeds of personal property, etc,, ruled in separate columns, and showing the time of reception, names of mortgagor and mortgagee, date of instrument, amount secured, Avhen due, description of property, etc.
This minute book is, by the act, substituted for full registration, when the mortgagee indorses on the deed, “This-instrument to be filed, but not recorded.” ' '
Why should the maker of a mortgage, or trust deed, go-unpunished for Avrongfully removing property from thecountAr Avhere the instrument is made matter of public, record in the mode prescribed by the statute, and is a lien upon the property, and notice to all the world? Or why permit him to remove it from the State, or secrete it, or sell, barter, exchange, or otherwise ’dispose of. it, in fraud of the rights of creditors secured by it, and yet be guilty of no crime? • In view of justice, there can be no differ ence between his wrongful conduct and that of one who removes or disposes of property covered by a deed spread at length on a record book in the recorder’s office ; and the Legislature intended no such distinction in the criminal Acts.
The demurrer was to the whole of the indictment, arid if any one of the three counts was good, it was properly overruled.
The first count, for removing the horse, embraced in the trust deed, beyond the limits of Lawrence county ; and the second count, for secreting the horse, was good. .
The third count charged that appellant “feloniously did barter, or otherwise dispose of ” the horse.
There are several modes by which the offense intended to be punished by the Statute may be committed, as by removing the property beyond the limits of the State, or of the county, or to secrete it, or, in the language of the act, to “sell, barter, or exchange, or otherwise dispose of any such property,” etc.
A sale is an exchange of goods or property for money paid or to be paid. Barter and exchange are of about the same meaning. Barter — the exchange of one commodity of article of property for another. Exchange of goods — a commutation, transmutation, or transfer of goods for other goods, as distinguished from sale, which is a transfer of goods for money. Burrill Law Die.
A count charging the sale of the property would be good.
So a count charging a barter or exchange of the property, or using either word, or both in the conjunctive, would be good. 1 Bishop on Crim. Pro., secs. 585 to 592.
But the third count in the indictment, charging that appellant did “sell, barter or otherwise dispose of” the horse, was too uncertain in an indictment for felony, and had there been a separate demurrer to this count, it should have been ■sustained.
In drafting an indictment, under the Statute, if there is uncertainty about the mode in which the offense may have been committed, counts may be added, charging it in different modes.
The verdict was general upon the indictment. Where ■there is a general verdict of guilty on an indictment o o j sisting of several counts, if any one of them is good, it sufficient. Brown v. State, 10 Ark., 607. But the good count must be sustained by evidence. State v. Mathis, 3 Ark., 84.
It appears from the • bill of exceptions that on the trial there was no evidence that the appellant removed the horse ■embraced in the deed of trust (which, with its certificate of •acknowledgment and endorsement of filing by the recorder, was read in evidence) beyond the limits of Lawrence county, as charged in the first count of the indictment.
Nor was there any evidence that he secreted the horse, as charged.in the second count.-
There was evidence conducing to prove that in the spring, or early in the summer of 1881, appellant sold or traded the horse to one Gentry, wflo lived near him, in Lawrence county, and that he disposed of the horse to another person, •and it was taken to Randolph county.
Appellant admitted that he knew he was doing wrong when he.sold or traded the horse.
But all this evidence related to the third count in the indictment, which charged that he “feloniously did sell, barter, or otherwise dispose of” the horse.
The appellant objected to so much of the first instruction given by the court to the jury as charged them “that if they found, from the evidence, that defendant secreted, or sold, or bartered, or otherwise disposed of said sorrel horse, they should find him guilty,” on the ground that it was too-general and misleading — “that he could not .ell what the otherwise was.”
This objection, though overruled by the court, was well taken. It would be unsafe to permit an accused to be convicted in a case involving liberty on a charge so loóse and uncertain.
III. Appellant asked the court to charge the jury that:— “H tke ÍU1T hnd, from the evidence, that E. Krone & Co. agreed with the defendant that thejr would accept another in place of said sorrel horse, and that said E- Krone& Co. took possession of said other horse, this was a satisfaction of the lien of said Krone &-Co. on said sorrel horse, and they will find for .the defendant.”
This instruction was refused by the court, and properly. There was evidence that appellant first represented to the-beneficiaries in the trust deed that the sorrel horse had died, but that after they ascertained that this was not the truth— that he had sold or traded the horse to Gentry — and had him arrested, he delivered to the trustee another horse, which he sold, and credited the price on the trust debt.
It was well for the appellant thus to satisfy his creditors, but this was no condonation of his offense against the public.
But for the errors above indicated the judgment must be reversed, and the cause remanded to the court below for a new trial; or appellant may be held to answer, a new indictment, at the election of the prosecuting attorney. | [
-16,
96,
-8,
77,
74,
-16,
42,
-70,
-37,
-110,
-94,
83,
-55,
-123,
65,
45,
-64,
109,
85,
105,
-28,
-77,
51,
-90,
80,
-13,
-33,
-123,
-77,
77,
-25,
71,
64,
52,
74,
29,
-58,
40,
73,
92,
-114,
1,
-85,
68,
-69,
-56,
62,
-81,
119,
74,
49,
46,
-77,
42,
61,
91,
40,
40,
91,
45,
-40,
-32,
-69,
87,
-2,
23,
-127,
102,
-108,
3,
-56,
44,
-112,
85,
32,
-7,
91,
-76,
22,
-44,
4,
-119,
9,
98,
34,
19,
-51,
-49,
52,
-119,
47,
50,
-113,
-121,
-80,
73,
83,
6,
-65,
-115,
82,
82,
6,
-4,
-23,
5,
17,
108,
39,
-113,
-108,
-125,
-113,
60,
-114,
7,
-9,
29,
49,
65,
-50,
34,
79,
38,
57,
-101,
15,
-7
] |
English, C. J.
This suit was commenced on the Chan•cery side of the Circuit Court, of Ashley county, the ■eighteenth day of December, 1877, by Eobert S. Curry, against Susan R|. Hunt.
The bill was brought under the provisions of section 178, of the revenue act of March twenty-fifth, 1871 (Acts of 1871, p. 187), which was re-enacted as section 181 of the revenue act of twenty-eighth of Arpil, 1873 (Gantt’s Dig. sec. 5214), to enforce a lien on lands for taxes paid by complainant.
The bill alleges in substance, that at a tax sale, made by the collector of Ashley county, in May, 1872, complainant, purchased four tracts of land, which are described and the amount of taxes, penalty and costs charged on each tract, ■and the sum bid for it, are stated ; the aggregate of the former being $296, and of the latter $779.
That complainant paid the collector the aggregate amount, of the taxes, penalties and chsts ($296.47), and obtained' from the clerk a cei’tificate of purchase, who, after the expiration of the time allowed by law for redemption, executed, to him a tax deed for the laixds.
That one Williamson Hunt was at that time in possession of the lands, claiming to be the owner thereof, and complainant instituted suit therefor in the Ashley Circuit Court, the tenth of February, 1875, for the ‘purpose of possessing-himself of the lands, and on the final tx’ial thereof, in August, 1876, the tax sale was held invalid on account of some informality in the proceedixxgs of the collector who made the sale, and judgment was rendered against him.
That as complainant was informed aixd alleged, the informality coxxsisted in the fact that the collector had permitted him to receive the certificate of purchase before he had paid to the collector the surplus, to be deposited in the Comity-Treasury, as directed by the Statute.
That SusaxxM. Hunt, who is made defendant, is the proprietor of the lands.
There was a claim for taxes paid subsequent to the tax sale, but no decree for them.
The bill prayed a decree for the $296.47, the aggregate amount of taxes, penalties and costs, paid by complainant, with interest thereon; that the sum charged on each tract and paid by him, be declared a specific lien thereon, and that the tracts be. severally condemned and sold for the satisfaction of the decree.
The answer of the defendant is brief.
She admits the sale as alleged, and that the sale, at a trial at law, was held invalid, but denies that it was on account of some informality in the proceedings of the collector, and demurs to the bill, because :—
First. It does not state facts sufficient to constitute a cause of action ; and,
Second. That it does not state, or show what the informality in the proceedings of the collector was.
On the hearing the demurrer was overruled, and decree as prayed by the bill.
Defendant filed a motion for a new trial (which was not necessary in a Chancery case) which motion", a record entry states, the Court overruled ; to which ruling the defendant at the time excepted, “and prays an appeal" to the Supreme Court, which prayer is by the Court granted.”
appeal On over-£iong?or £To )í anceiy' I. Upon this entry the counsel for appellee submits i i « time prayer and grant of appeal were from the decision °f the Court overruling the motion for a new trial, and not from the decree in the cause, and that therefore the appeal should be dismissed. Doubtless the prayer and grant of appeal were intended to apply to the decree, and to construe the entry so as to restrict them to the decision of the Court overruling the unnecessary motion for a new trial, would be to overlook substance and grasp at "a shadow.
II. The bill purports to exhibit a transcript of the judgment in the ejectment suit, and the decree entry states that the cause was heard upon bill, answer, exhibits and depositions : but in the transcript before us there are no exhibits.
Appellee read the depositions of witnesses, who stated that they were jurors in the ejectment suit, and in response to leading questions, several of them deposed that as they remembered it, the tax sale was held invalid, because appellee received the certificate of purchase before he paid the surplu.s bid by him for the lands. There appears, however, to have been no motion to suppress these depositions, and no question is made upon the evidence here.
UE It is submitted for appellant that the bill was insufficient, and the demurrer thereto should have been sustained 011 the grounds
First. That the bill fails to state who was the proprietor of the lands at the time of the tax sale in 1872. That it alleges that at the time the tax deed was issued, Williamson Hunt was in possession of the lands, claiming to be the owner thereof; and that at the time of the institution of this suit, appellant, Susan M. Hunt, was the proprietor of the lands. And it is submitted that, under the Statute, the lands would only be bound in the hands of the proprietor-at the time of the sale, and he only could be sued. That a subsequent purchaser would not be liable in this kind of action.
The Statute provides that:—
“Upon the sale of any land, or town or city lot, or part thereof, for taxes then due, if such sale should prove invalid on account of any informality in the proceedings of any officer having any duty to perform in relation thereto, the purchaser shall be entitled to receive from the proprietor of such land or lot the amount of taxes, interest, penalty and costs of advertising, with interest thereon from the payment thereof, and the amount of taxes paid thereon by the purchaser subsequent to such sale, and such land or lot shall be bound for the payment thereof; and, in the event the purchaser having bid and paid a greater amount than the taxes, penalty and costs of advertising, the county clerk shall draw a warrant on the treasurer for the amount of such excess as may have been paid thereon, in favor of the ' purchaser or his assignee.”
By the word “proprietor,” as used in this aet, is clearly meant the defaulting owner, or person under legal obliga•tion to pay taxes on the land or lot, and on account of whose failure to pay them the bale occurs. As against such .proprietor the Statute gives the purchaser a personal right, and of course a personal remedy.
Appellant is not alleged to have been the proprietor of the lands at the time of the tax sale, or to have been under any obligation to pay the taxes, etc., for which they were •sold. But the bill did not seek to charge her personally, and the decree was in rem against the land. She was alleged to be proprietor of the lands at the time of the institution of the suit, which was not denied by her answer, but admitted by her demurrer, and she was properly made defendant, as the bill sought to charge the lands. When or how she became proprietor of the lands, was not stated in her answer.
But the Statute goes further. It provides that the land ■or lot shall be bound for the amount of the taxes, etc., >charged thereon at the time of the sale, and subsequent •taxes, paid by the purchaser. In other words, it gives the purchaser a lien upon the land or lot for the amounts so •paid by him; and which he can enforce in Chancery. It would be a narrow view of the Statute, and not warranted ■by its language, so to construe it as to confine the lien to the time the land or lot remains in the hands of him who was its proprietor at the time of the tax sale, and to hold
that the lien may be defeated by a change of owners, which, may often happen.
If one might be an innocent purchaser in such case, appellant interposed no such defense.
Appellant might have asked, for her own protection, that- • the former owner, who should have paid the taxes, and for-whose default the lands were sold., and was, therefore, personally liable for them, be made defendant, but this was-not done, nor did she. demur to the bill for defect of parties. Gantt’s Dig., sec. 4564-5.
IV. It is further submitted that the demurrer should been sustained to the bill, because it does not allege-any informality in the proceedings of the collector, within, the meaning of the Statute. That the alleged informality was matter with which the collector had nothing to do.. That if the clerk gave appellee a certificate of purchase-without the payment of his bid, it was a fraud on the owner,, and that appellee was the principal party to the fraud. That it was his duty to pay his bids, and if he failed to do-so, it was his own fault, and not the collector’s. That his-failure to pay the surplus, could not possibly be an informality on the part of the collector. Such is the argument-of the counsel for appellant.
It is not true that if appellee failed to pay the whole of' his bids on the several tracts of land before the certificate of' purchase was issued by the clerk, the collector was not at. fault. It was the legal duty of the collector to require appellee to pay the whole amount bid for each tract before the-clerk issued the certificate of purchase, and to deposit the-excess or surplus of the bids, over and above taxes, penalties and costs, in the county treasury, to the credit of the-owner of the lands.
If, when the lands were struck oft to appellee, he failed to pay his bids, it was the duty of the collector to re-sell the lands.
It seems, however, that appellee paid to the collector the aggregate amount of taxes, penalties and costs charged upon the four tracts of land purchased by him, and that the collector indulged him for the surplus, which was probably paid after the issuance of the certificate of purchase, and before the execution of the tax deed, for the bill does not aver that it was never paid, but that the collector permitted appellee to receive the certificate of purchase before he had paid the surplus.
True, appellee was in fault as well as the collector ; but he suffered for his fault by having the tax sale declared invalid in the ejectment suit; whether rightfully or not, is a question not before us in this case.
Appellee certainly does not allege that he was guilty of any fraud in the matter; none was averred in the answer, and the demurrer to the bill merely admite the truth of its allegations.
If it had been shown that the proprietor of the lands had r 1 paid the taxes, or that they were not subject to taxation, appellee would have had no personal claim upon him, or lien upon the lands, for the taxes, penalties and costs paid by him.
But the owner was a defaulter, and appellee has the merit of having paid them on his bids, and though he was to blame, as well as the collector, for obtaining the certificate of purchase before he paid the surplus, yet he was punished for that by loss of his tax deed, and it would seem hard to inflict a further punishment, upon him by declaring that he has no remedy under the Statute to reclaim the amount of taxes, penalties and costs paid by him upon the lands.
The policy of the State is to favor those .who pay taxes upon lands for defaulting owners.
The language of the Statute is: “If such sale should prove invalid, on account of any informality in the proceedings of any officer having any duty to perform in relation thereto.”
All the steps in the process, from the assessment to the execution of the tax deed, are related to the sale, and any substantial omission of legal duty, misconduct, or irregularity of any officer connected with the process, for which the sale should be held invalid, may be deemed an “informality” within the meaning of the act. We are not disposed to take the word in a strict literal sense, and thereby limit the obvious pui-pose of the Statute.
Y. There is an error, however, in the decree, for which it must be reversed.
The suit was to enforce a lien upon lands, and the decree ' L should have directed the commissioner to sell them on crec^U as required by the Statute ( Gantt’s Dig., sec. 4708), pj; no£ redeemed by the day named, instead of for cash, as it in effect did.
Reversed, and remanded for further proceedings. | [
-16,
110,
-100,
44,
-88,
-32,
32,
-102,
75,
-93,
101,
83,
-81,
66,
16,
115,
-29,
57,
113,
108,
70,
-73,
19,
99,
-110,
-77,
-41,
-33,
49,
77,
-28,
-42,
72,
40,
-56,
-35,
71,
106,
-19,
-40,
14,
10,
-71,
-28,
-39,
64,
52,
109,
51,
75,
113,
-113,
-5,
42,
21,
107,
73,
44,
91,
42,
-47,
-14,
-70,
29,
63,
3,
-111,
102,
-8,
3,
-56,
74,
-112,
49,
64,
-8,
123,
-74,
18,
84,
13,
-115,
8,
36,
102,
33,
109,
-19,
8,
8,
46,
122,
-115,
-89,
-46,
104,
42,
73,
-74,
21,
124,
-112,
7,
116,
-20,
-59,
29,
124,
39,
-114,
-106,
-125,
15,
-82,
-100,
3,
-9,
-109,
48,
81,
-49,
-94,
92,
71,
49,
-101,
-113,
-54
] |
Eakin, J.
The appellee, Shaw, had been sued by Bozeman in an attachment suit. The attachment was not sustained, and, upon its dissolution, a verdict and judgment, under the Statute, had been rendered against Bozeman for wrongfully suing it out.
Shaw afterwards brought this action against Bozeman for suing out the attachment maliciously, and without probable' cause, seeking exemplary or punitive damages.
Malice and want of probable cause were denied by the answer, which also set up the former judgment for damages in the action of attachment. Upon these issues the jury rendered a verdict for $500 against defendant, Bozeman, who appeals.
There was a motion for a new trial, in which the only grounds assigned were, that the verdict was contrary to the law and the evidence. Also, a motion in arrest of judgment, on the ground that the matter of damages arising from tbe transactions had been adjudicated in the former suit. Both motions were overruled.
The motion in arrest, for the reason assigned, was 7 O 7 proper. I,t was matter of defense, if good, under any •cumstances, and had, indeed, been put in issue by the pleadings. The court, upon defendant’s own motion, had instructed the jury that if they found that the plaintiff, in ■another action, had recovered the actual damages sustained by him upon the dissolution of the attachment, they should, in making up their verdict in this case, exclude all actual ■damages from their consideration ; and to find for the defendant,^unless they found plaintiff entitled to vindictive or punitive damages.
This was ground selected by defendant for himself, and upon which he was allowed to stand before the jury, at his •own request. It is not necessary to determine whether the *• J law was correctly given. There was certainly no ground, ■afterwards, for motion in arrest of judgment.
It remains to consider whether the verdict was against the evidence, which is the only substantial point made by the appeal. The evidence tends to show that plaintiff was •*- in a lucrative mercantile business; that defendant had ■claim, or thought he had, against him for the correction of an account of their past dealings ; that he was unable to get a settlement; that plaintiff was selling off his stock, and disposing of property; and that defendant, Bozeman, despairing of other remedy, and advised by his counsel, adopted that of attachment. He made oath that plaintiff was disposing of his property for the purpose of cheating, hindering and delaying his creditors. At least, this seems to be admitted by the pleadings. The affidavit is not copied into the transcript, although the writ of attachment is.
There is no reason to believe that Bozeman acted dishonestly,' or with actual malice. But on the other hand, there was no positive evidence of the facts upon which the affidavit and attachment were grounded. The jury found there was no probable cause to believe they existed, and. upon that were justified in presuming malice.
The business of plaintiff seems to have been broken upy and his credit injured by the attachment. The jury had evidence before them to justify a verdict for exemplary-damages, and the amount does not seem excessive.
Affirm the judgment. | [
112,
-8,
-8,
13,
-120,
96,
42,
-6,
65,
-63,
-73,
83,
111,
-50,
20,
113,
81,
9,
117,
106,
86,
-77,
7,
67,
-38,
-105,
26,
-43,
-75,
-20,
-12,
-42,
76,
32,
66,
-43,
98,
-126,
-59,
-36,
-114,
-124,
-70,
108,
-3,
2,
60,
51,
52,
75,
113,
-97,
-29,
35,
29,
-61,
105,
46,
42,
-68,
112,
-7,
-70,
4,
77,
18,
-109,
37,
-102,
39,
88,
60,
-48,
49,
9,
-24,
114,
-74,
-126,
-12,
107,
-69,
76,
102,
99,
33,
69,
-19,
56,
-104,
46,
126,
15,
-89,
-48,
88,
9,
45,
-74,
-99,
119,
16,
7,
118,
-8,
29,
93,
124,
7,
-50,
-42,
-77,
-49,
62,
28,
23,
-21,
-125,
20,
96,
-52,
-94,
92,
71,
57,
91,
-113,
-66
] |
English, C. J.
This suit was commenced in the Circuit Court of Franklin county, on the third of March, 1876, upon the following writing obligatory:
“Twelve months after date we, or either of us, promise to pay G. W. C. Nixon, Common School Commissioner of Franklin county, or his successor in office, the sum of eleven hundred and forty-five dollars and twenty-eight cents, with interest at eight per cent, per annum, payable semiannually in advance, for value received. Witness our hands and seals this July the 1st, 1860.
“John Williams. [Seal.]
“Miles W. Williams. [Seal.]”
The suit was brought in the name of the State, for the use of the School Fund of Franklin county, against both of the obligors, but was finally discontinued as to Miles W. Williams, who was not served with process.
. I. The complaint alleged that the interest was paid up to July, 1861, after which no. interest was paid.
The case was tried on plea of the Statute of Limitations of ten years, November 29th, 1878, and there was a verdict in favor of the State against appellant, John Williams, for two thousand three hundred and forty-one dollars and sixty-two cents (12,341.62), and a new trial refused.
The interest was calculated by'the jury at six per cent, from the maturity of the obligation to the date of the verdict, under an instruction by the court, there being upon the face of the instrument no contract for interest at eight per cent, beyond its maturity, forwant of the words “until paid.” This instruction, which was objected to by appellant, will be referred to again below.
IL The plea of appellant, on which the case was finally tried, was simply that the plaintiff’s cause of action did not accrue within ten years next before the commencement of ... ' the suit.
The court instructed the jury, against the objection of appellant, “that if they believed, from the evidence, that the note was due on the first of July, 1861, and that the taction was commenced on the third day of March, 1876, .and that it was commenced within ten years, after deducting four years, ten months and twenty-six days, the time the Statute ceased to run, they would find for the plaintiff.”
And the court refused to instruct the jury, in effect, as •moved by appellant, that they must count the whole period ■from the maturit3r of the obligation to the commencement -of the suit.
There was no replication to the plea of limitation setting tup the war, and none is required or allowed to such plea by ■our Code practice. Nor did the plaintiff prove that there was any war between the maturity of the obligation and the ■commencement of the suit.
But the court properly took judicial notice of the public fact, as legally and historically established, that the civil war was flagrant in this State from the sixth of May, 1861, to the second of April, 1866, and followed the decisions of this court, that the Statutes of Limitation were suspended •during that period. Mayo et al v. Cartwright, ad., et al., 30 Ark., 412; Shinn v. Tucker, 33 Ib., 424; Worthington’s adm. v. DeBarlekin, ad., Ib., 656.
In fixing the length of the period of suspension at four years, ten months and twenty-six days, the court followed the computation of this court in Shinn v. Tucker, sup.
But the court erred in applying that computation in this ■case, because the obligation did not mature, and the Statute would not have commenced running, hkd there been no war, •until the first of July, 1861. The time deducted in this case should have been from the maturity of the obligation ■to the second of April, 1866, a period of about four years, nine months and one day. But appellant was not prejudiced by this error, because, from the maturity of the obligation to the third of March, 1876, when the suit was commenced, was a period of about fourteen years, eight months and two days ; and deducting from that period four years» nine months and one day, it left about nine years, eleven months and one day. So the action was not barred when commenced, if the Statute ran against the State, a questioxx not presented in this case.
In holding that the Statute of Limitations was suspended during the war, whether ixx suits between persons who had been belligerents, or in actions between persons who resided within the Confederate lines, this court followed the decisions of the Supreme Court of the United States, and the question must be regarded as settled.
III. The coui’t refused to give the following instruction moved for appellant:
“That the amended complaint filed ixx this cause, changing the party plaintiff from that of Franklin county to that of the State of Ax’kaxxsas, coxxstituted the present proceeding a new axxd different action. And if the jury believe, from the evidence, that the cause of action on the obligatioxx in suit did xxot accrue at any time withixx texx years next before the filing of said amended complaint, they must find for the defendant.”
To undex’stand this instruction, a brief statement of the pleadings, etc., in the case before the final trial, is necessary.
Ixx the original complaint, which was ixx the name of the State, for the use of the school fund of Franklin county, the obligatioix sued Oix was described; a copy exhibited, payment of the interest to maturity admitted, and judgxxxent prayed for principal axxd interest, which were alleged to be-unpaid.
At the April Term, 1876, appellant, on whom the writ, corresponding with the complaint in the style of the suit, etc., had been served, demurred to the complaint on the following grounds,.in substance :
First. That the State was not shown to be interested in the fund sought to be collected, and the obligation sued on was executed to Nixon, Common School Commissioner of Franklin county, or his successor in office.
Second. That the county of Franklin was a necessary party, but not made a party.
Third. That the collector of Franklin county was the successor of Nixon, and entitled to collect the obligation sued on, if any person was, but he was not made a party.
Before any decision was made on this demurrer, the plaintiff:, at the same term, asked and obtained leave to file an amended complaint; and filed *an amended complaint in the name of Franklin county, as plaintiff.
To this amended complaint appellant filed a demurrer, assigning causes not important to state. Nothing further appears to have been done in the cause at that time.
At the November Term, 1877, the plaintiff and appellant appeared by their attorneys, and the court, by consent of plaintiff, struck from the files the amended complaint theretofore filed. Whereupon, argument was heard on the ■demurrer to the original complaint, and the court sustained the demurrer as to the first cause assigned therein, and gave leave to amend the complaint.
On the next day (twenty-third of November, 1877,) an amended complaint was accordingly filed, in the name of the State for the use of the school fund of Franklin county, in which the obligation in suit was set out as in the original complaint, and the consideration for which it was executed stated, etc.; which will be more particularly noticed when we come to consider the proposition that this amended com plaint showed no right in the State to sue upon the obligation.
To this amended complaint the appellant pleaded that plaintiff’s cause of action did not accrue within ten years next before the commencement of the suit; to which plaintiff demurred; the court sustained the demurrer; appellant rested, and judgment was rendered against him for the-principal of the obligation, and interest from maturity at. eight per cent, per annum.
On the next day this judgment was set aside, by consent of parties, and the cause continued, with leave to appellant, to file a demurrer to the complaint at the next term, and: also an answer in lieu of the answer theretofore filed.
At the May Term, 1878, appellant demurred to the amended complaint on the ground that it did not contain facts sufficient to constitute a cause of action.
He also filed an answer, in which he stated that the so-called amended complaint, changing the party plaintiff from that of . Franklin county to that of the State of Arkansas, constituted the present proceeding a new and different action, and not the same action mentioned in prior proceedings. He further answered that the State had no right or title to the note sued on, and no right of action thereon. And, further, that the cause of action on said note, or obli-. gation, did not accrue within ten years next before the filing of said new or so-called amended complaint; which, he averred, was the commencement of this action.
On the filing of the demurrer and answer, the plaintiff, by leave of the court, amended the complaint by interlineation, and, thereupon, the demurrer was overruled.
By leave of the court, the name of Miles W. Williams, as a defendant, was stricken out — he not having been served with process.
And plaintiff demurred to the answer of appellant (twenty-first of May, 1878,) on the grounds:
First. That the first paragraph did not constitute a sufficient answer to the complaint.
/Second. That the second paragraph raised a question of law, which should have been presented by demurrer.
This demurrer to the answer was not decided by the court, but, on the twenty-fifth of May, 1878, appellant filed the answer, on which the case was finally tried, that the plaintiff’s cause of action did not accrue within ten years next before the commencement of the suit.
The original suit, it is manifest from the whole record, was never dismissed, discontinued, or permanently abandoned ; but was prosecuted to final trial and judgment. It is true, that when the original complaint was demurred to, the attorney for the State seemed to be in doubt as to whether the suit upon the obligation was properly brought in the name of the State, and filed an amended complaint, substituting Franklin county as plaintiff, which was after-wards struck from the files by his consent, the demurrer to the original complaint taken up, partially sustained, an amended complaint filed in the name of the State, on which, as further amended' by interlineation, the suit progressed to final judgment in favor of the State. The instruction above copied was, therefore, rightly refused.
IV. We will now turn back to the instruction of the court, in which the jury were told, against the objection of appellant, to allow interest upon the obligation from its . . maturity to the time of the trial. It is submitted, for pellant, that no interest should have been allowed during the period of the suspension of the Statute of Limitation by the war.
The obligation sued on was executed in this State, and made payable to the Common School Commissioner of Franklin county. Appellant did not, by any pleading, show that he was a citizen, or resident, of any State or Territory adhering to the Federal Government during the period of the war.
In Brown v. Hyatt, 15 Wallace, 177, Brown, a citizen of Virginia, in May, 1860, loaned Hyatt, a citizen of Kansas, money, and took a mortgage from him and his wife on land to secure the payment of the debt. After the war, a suit was brought to foreclose the mortgage, and the Supreme Court of the United States held that inasmuch as it was not lawful for Hyatt to pay the debt to Brown during the war, no interest should be allowed upon it dui’ing the period in which its payment was prohibited.
Though the same court has repeatedly held that the Statute of Limitation was suspended during the war, in suits between persons residing in the Southern States, on the theory that the courts were closed, or the administration "of justice interrupted, it has decided in no case, that we are aware of, in such suits, that interest should not be allowed during that period.
In Roberts, ad., v. Cocke, 28 Grattan, 207, the Supreme Court of Appeals of Virginia decided that an act passed by the Legislature of that State, requiring the courts to remit interest in suits on contracts entered into prior to the tenth of April, 1885, for a period during the civil war, was unconstitutional and void, as impairing the obligation of contracts. The suit was between Virginians, on contracts made in that State in 1860, and the act was passed on the second of April, 1873,
' Justice Burks, who delivered the opinion of the court, said: “If, during the late war between the United States and the Confederate States, the defendants, Cocke and Carter, had resided within the territory under the dominion of one of the belligerent powers, and their creditor had resided in the territory of the other of said powers, they would have been entitled, independent of the Statute in question, to an abatement of the interest during the time the war lasted. Such is the 'rule of the public law applicable to a war between independent nations, and at an early period after the termination of the late war between the States, it was applied by the courts to that war, etc., etc.
“If, therefore, Cocke and Carter (defendants in error) had been alien enemies in respect of their creditor, they would have been entitled to an abatement of the interest on their debt for the period covered by the war, and might have'made their defense, certainly under a special plea, and perhaps, under the plea of payment, etc. But, as no such defense was made, it is to be presumed, if indeed, it may not be inferred, from the record, that the facts did not warrant the defense.
“The averment, which seems to be the gist of the third plea, that the principal money ‘was not worth any interest to the defendants during the war,’ was no bar to the plaintiff’s right to recover. The defendants, by their bond, expressly stipulated for continuing interest on the debt without any exception of the period of the war, should one occur, and the law, as the general irule, makes no such exception, where the contracting parties make none. It may be true that the defendants derived no benefit from the use of the principal money during the war. - This may have been their fault, or their misfortune; but whether the one or the other, the contract was not affected by it. They were at liberty, under the contract, to discharge the obligation at any time by payment, according to its terms, of the principal sum and accrued interest. They neither paid, nor offered to pay, any part of either, and while they withheld another’s money, it does not lie in their mouths to say that they derived no benefit from it, and, therefore, should not be required to pay for the use of it that compensation which they had agreed to pay.”
The opinion, after holding that interest laws existing at the time contracts are made, enter into and form part of them, says further:
“In the case of McCall v. Turner, 1 Call., 133, there are expressions in the opinions of several of the judges-which might indicate that, under the law as it then stood, they thought that juries were invested with discretion to' abate interest in all cases during war. But these expressions are mere dicta, and have no controlling influence as authority. The case decided was a controversy between parties-who were considered as occupying the relation to each other of alien enemies during the revolutionary war, and the interest during the war was, therefore, properly abated.
“ Ambler's Ex'rs v. Macon, etc., 4 Call, 605, decided in-1803, contains a dictum of Judge Pendleton, that interest during the war ought not in justice and equity to have been allowed on debts due to domestic creditors no more than to foreign, but since it has not been attended to, either in practice or judicial decisions, until so much business has been otherwise adjusted, it would be unjust at this late era to introduce it in-a particular case, unless in one attended with particular circumstances,”
“Afterwards in 1804, came on the case Hawkins’ Ex’rs. v. Minor, etc., 5 Call 118, which was an appeal from a decree pronounced by Chancellor Wythe in the High Court, of Chancery. One of the errors assigned on the appeal was, that the chancellor had disallowed interest for the period of the revolutionary war, in a case where both creditor and debtor resided during the war in Virginia; and the court-unanimously held that the disallowance by the chancellor of the interest for said period was erroneous.”
“In the case of Crenshaw v. Siegfried, 24 Gratt, 274, one of the questions decided by this court was, that it was. error in the court below to deduct interest during the war on a bond given before the war for the payment of a sum of' money with interest from date. As the decree by which this deduction was made was pronounced prior to the passage of the Act of the Legislature, the validity of which is drawn in question in the case now before us, this court did not in that case, pass upon the validity of said Act. But Judge Mon-cure, in delivering the opinion of the court, said: “ Certainly the use of the money is a valuable and legal consideration for a promise to pay legal interest thereon, and even-an Act of the Legislature passed to annul or impair such promise would be unconstitutional and void. Of course a. decree declaring such a promise to be void, even in the absence-of such an act, must therefore be erroneous.” After deciding-the act in question to be unconstitutional, the court proceeds to say: “ And we are further of opinion, -that the mere existence of the late war between the United States and the Confederate States does not, alone, furnish any legal ground for the abatement of interest on debts upon contracts duriug the time such war lasted. We do not mean to say, however, that there may not be special cases, attended with circumstances connected with or growing out of the war, which would furnish legal cause for abatement of interest. When such cases arise, they must be decided according to the law applicable to the peculiar facts and circumstances of each case. .We can only laydown the general rule.”
In this case appellant pleaded no facts to show that he had any just claim to an abatement of interest during the period of the war.
Judicial notice. V. We will now consider the question whether the State had any right of action on the obligation in suit. -
' The complaint as finally amended, in addition to the aliegations above noticed, alleged, in substance, that the obliga- ? ’ * ■tion in suit was executed by the defendants (Johu and Miles Williams) to Nixon as Common School Commissioner of Franklin county, for money borrowed by them of him in his official capacity, and which belonged to him as such commis■sioner, as funds set apart by the. laws and statutes of the •State for the purposes of education, and that the principal and accrued interest upon the obligation were now due and owing to the plaintiff, the State of Arkansas, for educational purposes, etc.
How the State became the owner of the obligation, and entitled to sue thereon for the debt and inteimst, is not alleged in the complaint, and if by reason of public legislative enactments, it was not necessary to plead them, for the court would take judicial notice of them. Davis v. Calvert, 17 Ark., 88.
•By the Act of July 23d, 1868, to establish and maintain a system of free common schools for the State (Acts of 1868, pp. 163) the office of common school commissioner as previously provided for (See Gould’s Diy.,pp. 985, etc.), was impliedly abolished, and has never been re-established. So when this suit was commenced, Nixon, to whom the obligation sued on was made payable, officially, was not Common School Commissioner of Franklin county, nor had he then any successor in office, for the office did not exist.
By provisions of the Act of twenty-third of July, 1868, all monies, bonds, etc., etc., then belonging to any fund for purposes of education, were made the common school fund ■of the State, and the common property of the State, and were required to be paid directly into the State Treasury, and if not'paid, might be recovered by action 'to be prosecuted by the Attorney-General of the State, or a District Attorney, when directed by the State Board of Commissioners of the Common School fund provided for in the Act. See Secs. 1-8. These provisions were carried into the subsequent Common School Acts, with an exception which» will be presently noticed.
The amended complaint alleged that the obligation in suit was executed to the commissioner lor money borrowed of hita by the obligors, which had been set apart by the laws of the State for purposes of education ; and no doubt the obligation vested in the State for common school purposes by the provisions of the Act of twenty-third of July, 1868.
No assignment by the commissioner of the obligation to the-State was requisite to enable the State to sue upon it. The-statute transferred the title. Moreover the State could sue under the code as the real party in interest, having' control of' the fund. Gantt’s Digest, See. 4469.
In the Common School Act of Dec. 7th, 1875, the proceeds-arising from the sale or lease of sixteenth sections are excepted out of the Common School Fund of the State.. See. 1.
The counsel for appellant assume that, the obligation in suit was for money derived from the sale of sixteenth sections, because they say this court judicially kuows that the county.commissioners had no other funds to loan, and had no authority to loan any other.
With all due respect to the learned counsel, this court does-not judicially know any such thing. On the contrary by the Statute in force when the obligation was executed, the County Commissioners were the custodians of proceeds of the sales-of seminary and saline lands, and of monies arising from escheats, fines, forfeitures, etc., which were devoted to educational purposes, and they were authorized to make loans out of the school funds in their hands, and devote the interest to school purposes. See Gould’s Dig., Chap. 154, Secs. 26, 28.
If the obligation was in fact executed for a loan of money-arising from sales of sixteenth sections,, and’ if such fact, would have defeated the right of the State to sue on the obligation, it should have been pleaded. Appellant demurred "to the complaint, and after the demurrer was overruled, finally went to trial on no other plea than the statute of limiitation.
The judgment of the court below must be affirmed. | [
-74,
120,
-68,
62,
10,
32,
40,
-110,
-101,
99,
37,
83,
-3,
-59,
17,
121,
-93,
41,
117,
121,
-31,
-77,
19,
99,
-78,
-77,
95,
-43,
-75,
-43,
-12,
-42,
76,
52,
-22,
-99,
70,
-62,
-63,
-38,
-114,
-128,
-71,
108,
81,
-23,
56,
109,
18,
11,
49,
30,
-13,
42,
29,
107,
73,
47,
107,
41,
-56,
-31,
-126,
71,
125,
22,
-111,
119,
-98,
67,
74,
60,
-104,
49,
-88,
-24,
122,
-90,
-58,
-42,
105,
-119,
-120,
104,
102,
48,
-91,
111,
-104,
-120,
30,
-2,
13,
-122,
-74,
121,
59,
5,
-66,
-97,
-12,
80,
-57,
116,
-20,
5,
19,
104,
1,
-53,
-108,
-61,
-115,
44,
-98,
2,
-9,
43,
48,
83,
-49,
-30,
91,
103,
56,
-109,
-113,
-69
] |
Eakin, J.
It appears that when these proceedings began in the County Court in October, 1879, Mervin who had been deputy collector under Furbush, was then himself the ■clerk and Furbush had left the county. It does not appear whether any settlement had been made between the collector and clerk in 1878 on account of taxes for 1877, or what balance had been found against the collector. It is to be inferred, however, that there was no controversy save as to the particular item to which the motion was directed. The County Court had jurisdiction of the subject matter, and for the purposes of this decision, it may be taken that its action on the motion was final as to the settlement.
The securities of Furbush can not be regarded as parties to the proceedings. They might have been admitted to' appear in person or by attorney, but Mervin, as deputy collector, had no more right to répresent them than any other individual would have had. It is a fundamental principle of modern pleading that the remedies must be sought in the names of the real parties in interest if they are competent to act sui juris. The motion and the appeal are really in the name of Furbush and must be so considered. The deputy had no interest whatever. In this view Furbush isestopped by his contract from claiming that the package of scrip was actually paid into the treasury. He reclaimed it because he was unwilling that it should go into the Treasurer’s hands upon such a receipt as that given by the Treasurer to Hewitt. This he had the right to do, remaining liable, however, for the amount actually due. If he acted in bad faith his securities are none the less responsible ; they answer for his fidelity, and he has control of the funds collected until they are finally paid overto the person authorized to receive them.
The courts can not recognize the right of a deputy to control the conduct of his principal, or to act as agent of his principal’s sureties, to keep funds out of his principal’s hands, and administer them himself. Persons who become sureties with the suspicions which such a course implies, must abide the risks. The practice has been common and results from political causes with which we have nothing to do. Whilst we may sympathise with a people whose circumstances make it necessary, we cannot give it legal sanction.
The case would not be different if the motion had' been made in the proper names of the sureties. The court, rightly found that the payment into the treasury was never really consummated. The deputy might well have employed an agent or messenger, or obtained the serivces of a friend to transmit the money to the Treasurer and take a receipt-He could not authorize the messenger however, to take any other than a true receipt for the whole amount paid in,, principal and interest. Such a receipt should have been given, as receipts are but memoranda and evidences of facts. If the collector had been on his part liable for interest, it should have been shown by a charge per contra A mere stranger acting for a deputy had no right to determine this question, and the collector might repudiate his-action and leave matters in statu quo.
Affirm the judgment. | [
-16,
-24,
-7,
93,
26,
96,
42,
58,
66,
-93,
37,
115,
-23,
-26,
16,
117,
-13,
123,
-76,
43,
-60,
-78,
23,
73,
-78,
-45,
-63,
-41,
53,
77,
-26,
-41,
77,
48,
10,
-43,
103,
-94,
-59,
-34,
-114,
9,
-88,
-29,
-35,
96,
48,
-95,
22,
73,
113,
-18,
-29,
42,
29,
71,
105,
46,
107,
-72,
-48,
-15,
-65,
-115,
127,
4,
-111,
103,
-104,
67,
-40,
46,
-104,
57,
0,
-24,
119,
-90,
6,
118,
13,
-87,
40,
102,
98,
17,
101,
-83,
-80,
-104,
62,
-1,
13,
-89,
-109,
72,
43,
41,
-74,
-99,
126,
0,
7,
124,
-32,
-99,
29,
44,
3,
-114,
-42,
-77,
12,
-82,
-120,
19,
-1,
-63,
48,
81,
-50,
-82,
93,
71,
56,
59,
-114,
-104
] |
Eakin, J.
Mary E. Holt, a married woman, applied by bill in Chancery Court, to cancel a deed of land, which,, with her husband, she had executed, in accordance with the-statutory form, to the appellee, Moore. The certificate of her acknowledgment, before a Justice of the Peace, is full and sufficient.
She alleges that the conveyance was procured by the fraud of Moore, in operating upon the fears of her husband, to-induce him to leave the country to avoid a criminal prosecution ; and by the coercion and undue influence of her husband, to induce her to consént, of which defendant was cognizant. She also alleges that defendant, as a part of the inducement by which her consent to the acknowledgment was obtained, promised to reconvey the land, should they ever return to the country and desire it; and that upon request he had refused to reconvey upon the same terms or even for additional considerations.
Upon issues made to the allegations, and upon proof, the cause was heard by the Chancellor, who denied the relief, holding that the fraud did not sufficiently appear, and that the promise to reconvey, even if made, came within the Statute of Frauds and could not be enforced.
It is certainly true that the acknowledgment of a married woman to her deed duly certified, although prima facie evidence's not conclusive against her, either as to the fact that ¡the acknowledg'tnent was made as certified, or that the facts-which she acknowledged were themselves true, unless it be against a vendee for valuable consideration, who was himself ignorant of the falsity of the facts, and had not participated in the fraud. As to him, she must be held estopped where the acknowledgment was actually made, or there would be no safety in conveyances. A false certificate of acknowledgment, where none was made, would present a different question. (See cases commented upon in 1 Bish. on mar. women, see. 591.)
MAY TEEM, 1881. 149 Holt v. Moore. A parol promise to reconvey, where the sale is absolute, •comes within the Statute of Frauds. The agreement mustlEAUDS: be in writing. Parol evidence may be introduced to show that a deed, absolute on its face, is indeed only, as between the parties, a mortgage when a subsisting debt remains to .support it. But where there is no remaining debt due to the vendee, where the consideration has passed, or the obligation to pay it has been incurred and there is no obligation •of the vendor to repurchase, we know of no case where it has held that this option may be retained by parol agreement, any more than a right to make an original purchase at a future time. The equity doctrine for showing by parol that a deed was in fact a mortgage, has never been extended so far, and indeed could not be without opening the flood gates of perjury in a country where property so often and •unexpectedly increases in value with startling rapidity Nevertheless, the use of such a 'promise in overreaching a weak or ignorant mind might become an element of fraud to be considered in connection with other circumstances. The evidence in this case is voluminous, much of it conflicting, much incompetent and more irrelevant. Yarious portions were objected to before hearing and motions were ■made to strike out and suppress. The Chancellor suppressing one deposition and, for the rest, announcing that he •excluded from consideration all those portions of the others which he deemed irrelevant or incompetent, reached the conclusion stated above. The fraud, which is the single question, must be clearly 3. reato.shown. The ohms is on the complainant. The depositions ¿1° •and exhibits have been carefully reviewed, and it is sufficient r0' to say that, upon the whole case, we do not consider that the allegations of the bill were sufficiently sustained by preponderance of proof to entitle complainant to the relief sought. Affirm the decree. | [
50,
108,
-28,
-67,
-22,
-16,
42,
-88,
-30,
-127,
55,
83,
-67,
-64,
28,
123,
-92,
111,
-48,
104,
87,
-78,
7,
75,
-14,
-13,
-45,
-33,
-79,
-19,
-28,
86,
76,
48,
-62,
93,
102,
-118,
-61,
88,
-50,
-113,
-117,
65,
-39,
-36,
52,
101,
0,
75,
97,
-34,
-77,
40,
61,
-57,
-23,
42,
107,
61,
72,
-67,
-97,
-108,
95,
7,
-109,
100,
-4,
15,
-54,
10,
-104,
49,
0,
-8,
87,
-106,
-122,
68,
79,
-101,
24,
116,
98,
33,
-60,
-3,
56,
-98,
47,
126,
45,
38,
-13,
72,
105,
65,
-67,
-103,
-100,
16,
47,
-14,
-17,
-115,
92,
96,
40,
-81,
-106,
-65,
13,
60,
-104,
7,
-9,
-83,
-112,
81,
-51,
-20,
93,
99,
81,
-101,
-114,
-77
] |
Elizabeth W. Danielson, Judge.
Appellant Roger Brown was convicted by a jury of driving while intoxicated, third offense, and of refusal to take a breathalyzer test. He was sentenced to six months in the county jail and fined $5,000. His driver’s license was suspended for two years on the DWI charge and for six months on the refusal to take a breathalyzer test. Upon review of the points assigned as error by appellant, we affirm the convictions.
In the course of his patrol duties on April 26, 1990, Officer Mike Edwards of the Harrison police department left the city limits, driving north on Cottonwood Road. His purpose was to patrol two subdivisions of the city, which he testified could only be reached by leaving the city, driving through the county, and then reentering the city at the subdivisions. As he was sitting within the city limits, Officer Edwards observed appellant’s vehicle drive by on Cottonwood Road, which was outside the city limits, at an excessive rate of speed. Officer Edwards testified that appellant was clocked on radar as going 55 miles an hour in a 40 mile an hour speed zone and that appellant’s vehicle was closing in on the vehicle in front of him at a rate deemed dangerous by the officer.
Officer Edwards immediately pulled out behind appellant and turned on his blue lights. Appellant did not pull over and the officer continued to follow him for about a mile. The officer observed appellant negotiate a sharp curve in a “staging maneuver,” which the officer testified indicates the driver has impaired motor skills. Appellant crossed the center line about three times during this process. Appellant then pulled over and stopped on a side street.
As appellant got out of his vehicle, the officer observed him walking in a halting manner and using the vehicle for support as he walked towards the officer. Officer Edwards met appellant somewhere between the two vehicles and detected a strong odor of alcohol. Based on this and other observations, including appellant’s slurred speech, bloodshot eyes, and unsteadiness, the officer believed appellant to be intoxicated. A backup unit arrived and the two officers conducted field sobriety tests, one of which was a gaze nystagmus test. Appellant performed poorly on the tests and was arrested for driving while intoxicated. Appellant was taken to the Harrison police station, where he refused to take a breathalyzer test.
Appellant’s first argument on appeal is that the trial court erred in denying appellant’s motion to suppress evidence on the grounds that the arresting officer lacked territorial jurisdiction for the arrest. Appellant contends that because his conduct and the arrest occurred outside the city limits, the arrest was illegal and the unlawfully obtained evidence should have been suppressed. In reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the ruling was clearly against the preponderance of the evidence. Johnson v. State, 27 Ark. App. 54, 766 S.W.2d 25 (1989).
In support of his argument, appellant relies on Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990), in which the supreme court found that an arrest outside the officer’s territorial jurisdiction was illegal and the evidence unlawfully obtained should have been suppressed. In Perry, the court noted the well-established rule that a “local police officer acting without a warrant outside the territorial limits of the jurisdiction under which he hold office is without official power to apprehend an offender, unless he is authorized to do so by state statute.” 303 Ark. 100 at 102. The court further noted that the State of Arkansas has authorized local police officers to act outside their territorial jurisdiction in four instances: (1) under the “fresh pursuit” doctrine, codified at Ark. Code Ann. § 16-81-301 (1987); (2) when the peace officer has a warrant of arrest, Ark. Code Ann. § 16-81-105 (1987); (3) when a local law enforcement agency requests an outside officer to come within the local jurisdiction and the agency the outside officer is from has a written policy regulating its officers when they act outside their jurisdiction, Ark. Code Ann. § 16-81-106 (Supp. 1991); and (4) a county sheriff may request that a peace officer from a contiguous county come into the requesting sheriff’s county under Ark. Code Ann. § 5-64-705 (1987) in connection with violations of drug laws. See Perry, 303 Ark. at 102-103.
In Perry, a Searcy police officer arrived at a lodge and parking lot area, which was located outside the city limits but surrounded on three sides by the city. As the officer was driving across the lot to get to another part of his route inside the city, he saw a car parked with its lights on and motor running, and a man slumped over the steering wheel. Upon discovering that the man was drunk, the officer detained him and called for the county sheriff.
We believe Perry is distinguishable from the case at bar and that Officer Edward’s actions were justified under the fresh pursuit doctrine. See Ark. Code Ann. § 16-81-301 (1987). Unlike Officer Edwards, the officer in Perry was not within his territorial jurisdiction when he first observed the defendant. His detention of the defendant could not be justified under any. of the four situations in which a local police officer is authorized to act outside his territorial jurisdiction.
In Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991), a UALR campus patrolman was within his territorial jurisdiction when he observed the defendant driving in an erratic manner on an adjacent street, which was also within the officer’s jurisdiction. The patrolman pursued the vehicle to an area that was off campus and not adjacent to the campus, where the defendant was arrested for DWI. Although the patrolman was outside his territorial jurisdiction when he made the arrest, the supreme court held that given his firsthand information of the defendant’s conduct and because he began pursuit within his jurisdiction, the patrolman was well within the bounds of his authority when he pursued the defendant for four blocks and made the arrest. Smith, 305 Ark. at 172.
Because Officer Edwards was within his territorial jurisdiction when he first observed appellant driving in a dangerous manner, and began his pursuit of appellant from this point, the subsequent arrest was authorized under Ark. Code Ann. § 16-81-301 (1987), the “fresh pursuit” doctrine. The trial court properly denied appellant’s motion to suppress.
Appellant’s second contention is that the trial court erred in allowing testimony concerning the details and results of a field sobriety test known as the “horizontal gaze nystagmus” test. Appellant objected to this testimony on the basis that there was no foundation laid for the witness to testify as to how the biological effects of alcohol could be gauged by the gaze nystag-mus test. Following this objection, the officer testified as to the training he had received at the University of Arkansas’s DWI school, including a course that dealt in depth with the horizontal gaze nystagmus test.
Appellant relies on Middleton v. State, 29 Ark. App. 83, 780 S.W.2d 581 (1989), in which we held that the arresting officer’s testimony was insufficient to provide an evidentiary foundation for admission of the test results. The appellant in Middleton did not argue that the arresting officer had insufficient training or experience to administer the test, but instead contended only that the test itself was invalid. This court stated that we need not decide whether or not gaze nystagmus tests are per se inadmissible because the proper foundation had not been laid to establish the reliability, accuracy, and validity of the test.
Again, we need not decide whether the horizontal gaze nystagmus test is per se inadmissible because the appellant did not object to the validity of the test, but objected only that there had been “no foundation laid to qualify this witness to testify about the biological effects of alcohol and how those effects can be gauged by the horizontal gaze nystagmus test.” (Emphasis added.) Appellant later requested a continuing objection “based on this witness’s qualifications to testify about matters in biology.” We believe the officer’s testimony regarding his training that dealt in depth with the horizontal gaze nystagmus test was sufficient to establish him as an expert witness qualified to discuss the details and results of the test. We are not required to discuss whether a proper foundation was laid to establish the validity of the test because this point was not raised below; the appellate court will not address matters raised for the first time on appeal. Chadwell v. State, 37 Ark. App. 9, 822 S.W.2d 402 (1992).
Another factor in the reversal of Middleton was the allowance of testimony by the officer that based on the results of the gaze nystagmus test, the defendant had a blood alcohol level of .15 of .16. In the case at bar, appellant objected to testimony that the test results indicated a particular blood alcohol content, and this objection was sustained. The officer was allowed only to testify that the test results indicated that the driver had ingested substances that would make him an unsatisfactory driver. No error occurred in the admission of this testimony.
Appellant’s final argument is that the trial court erred in denying his motion for mistrial. During the course of his testimony regarding his observation of appellant at the police station, Officer Gilliam was asked how appellant appeared to him. He responded, “very intoxicated.” When asked what did he mean by “very intoxicated,” the officer replied, “.15, .14, .15.” Appellant moved for a mistrial, which was denied. The court admonished the jury to disregard that portion of the officer’s testimony.
Mistrial is an extreme remedy that should only be resorted to when there has been an error so prejudicial that justice could not be served by continuing the trial. Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991). The trial judge is vested with considerable discretion in acting on motions for mistrial because of his superior position to determine the possibility of prejudice, and the trial judge’s decision will not be reversed absent an abuse of that discretion. Muhammed v. State, 27 Ark. App. 188, 769 S.W.2d 33 (1989).
Appellant’s reliance on Middleton, 29 Ark. App. 83, is misplaced. There the officer testified that the defendant’s performance on the horizontal gaze nystagmus test showed that he had a blood alcohol content of. 15 or. 16. The court found that the test was not a chemical test of a bodily substance and could not be used to establish a specific blood alcohol level.
Here, there was no reference to blood alcohol content, only a bare reference to numbers, and there was no attempt to bolster the officer’s conclusion by linking it to the results of a field sobriety test. When the testimony is read in context, it is apparent that the officer’s conclusions were based only on his own observations and impressions. The admonition to the jury was sufficient to cure whatever effect the statement may have had. See Burnett v. State, 299 Ark. 553, 776 S.W.2d 327 (1989). We cannot say the trial court abused its discretion in refusing to grant appellant’s motion for mistrial.
Affirmed.
Cracraft, C.J., Cooper and Mayfield, JJ., dissent. | [
-16,
-22,
-56,
-98,
43,
-64,
-110,
24,
88,
-41,
-2,
51,
-83,
82,
69,
123,
-87,
93,
85,
89,
-33,
-90,
71,
-63,
-78,
-13,
72,
-49,
-77,
79,
-12,
-12,
127,
48,
-125,
-107,
38,
72,
-25,
88,
-122,
21,
-71,
-32,
17,
-110,
48,
123,
1,
15,
49,
31,
-93,
62,
25,
-53,
105,
108,
-37,
33,
72,
-7,
-103,
-107,
75,
22,
-77,
36,
-99,
-123,
-8,
59,
-36,
49,
64,
120,
59,
-74,
-126,
-12,
111,
-103,
-116,
36,
106,
-95,
21,
-49,
-20,
-72,
13,
62,
-97,
-90,
-100,
113,
73,
12,
-106,
-97,
126,
22,
14,
-8,
107,
-44,
89,
120,
38,
-49,
20,
-111,
-51,
36,
-94,
67,
-21,
33,
16,
117,
-49,
118,
84,
4,
112,
27,
-61,
-42
] |
James R. Cooper, Judge.
This appeal is from a decision of the Workers’ Compensation Commission. The full Commission reversed the decision of the administrative law judge and denied the appellant benefits on a finding that he failed to prove by a preponderance of the evidence that his back injury was caused by a work-related accident.
For reversal, the appellant contends that this finding was not supported by substantial evidence, and that the facts found by the Commission do not support its opinion and order. We agree, and reverse the decision of the full Commission.
The appellant was employed by the appellee, Frost Logging Company in April 1988, when he fell off a log truck while marking footage on loaded logs. He testified before the administrative law judge that his employer was about to drop a log on his hand and he stepped back to avoid it. When he did, the loader swung around, jerking and vibrating the truck and he fell, unable to hold onto the slick logs. He immediately felt tingling in his back, left hip and left leg but returned to work the following day. Bobby Jones, the appellant’s co-employee, testified that after the fall, the appellant “was kind of stove up like arthritis” for the next day or two; that later he “was slow about moving and he had trouble throwing his chains (to bind' the logs), and Joe (the employer) had to throw his chains for him every once in a while... He didn’t trim limbs or run the chain saw after that either.” Mr. Jones further stated that the appellant was able to perform all of his duties before the fall, describing him as “gung-ho ... working hard”, and that after the fall he noticed the appellant having periodic back problems.
The appellant continued in his employment until July 1988, when he was forced to quit due to respiratory problems attributed to carbon monoxide poisoning. He met with an attorney at that time to seek assistance in obtaining financial assistance from his employer for the medical bills associated with his respiratory problems. He did not discuss the work-related fall or back injury with his attorney at that time.
In September 1988, the appellant was hospitalized primarily for the respiratory problems but complaints of lumbar pain and back pain were noted in the narrative reports. A CAT scan conducted in November showed that the appellant had a herniated disc, and he subsequently underwent surgery for his back. He was assigned a permanent partial disability rating of 10 percent to the body as a whole after the surgery, and was awarded temporary total disability benefits by the administrative law judge. It was this award which the Commission reversed.
When reviewing decisions from the Arkansas Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission, and we must uphold those findings unless there is no substantial evidence to support them. Scarbrough v. Cherokee Enterprises, 33 Ark. App. 139, 803 S.W.2d 561 (1991). Incases where a claim is denied because a claimant fails to show entitlement to compensation by a preponderance of the evidence, the substantial evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission’s opinion. Williams v. Arkansas Oak Flooring Co., 267 Ark. 810, 590 S.W.2d 328 (Ark. App. 1979); Linthicum v. Mar-Box Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987).
In a workers’ compensation case, the claimant has the burden of proving by a preponderance of the evidence that his claim is compensable, i.e., that his injury was a result of an accident that arose in the course of his employment, and that it grew out of, or resulted from the employment. Wolfe v. City of El Dorado, 33 Ark. App. 25, 799 S.W.2d 812 (1990). He must prove a causal connection between the work-related accident and the later disabling injury. Lybrand v. Arkansas Oak Flooring Company, 266 Ark. 946, 588 S.W.2d 449 (1979). It is not, however, essential that the causal relationship between the accident and disability be established by medical evidence, Crain Burton Ford Company v. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984), nor is it necessary that employment activities be the sole cause of a workers’ injury in order to receive compensation benefits. It is enough if there is “a substantially contributory causal connection between the injury and the business in which the employer employs the claimant.” Lockeby v. Massey Pulpwood, 35 Ark. App. 108, 812 S.W.2d 700 (1991).
The Commission conducted a de novo review of all the evidence in the record which included testimony of the appellant, his wife, and a former co-employee. The opinion stated:
Undisputed and uncontradicted testimony indicates that the Claimant did fall off a logging truck in late April of 1988 while performing employment-related duties for the Respondent employer. The testimony also indicates that the Claimant immediately began to experience back problems. The Claimant and a former co-employee both testified with regard to the fall, and they both testified that the Claimant was not able to perform his employment duties as well after the fall as before. In addition, his wife testifed that she and a son had to assist the Claimant in getting out of his truck on the day that the fall occurred, and both the Claimant and his spouse testified that he immediately began to experience problems with his lower back and left leg and that these problems progressed to the point where he experienced numbness in his left leg and could not control the leg, causing him to lose his balance at times. However, the claimant returned to work immediately after the fall and he worked continuously until he terminated his employment with the Respondent employer in July of 1988 for medical reasons unrelated to his back condition.
The Commission noted that the appellant testified that he complained to his doctor about his back pain prior to September, but the Commission found no other evidence to support this testimony. The appellant explained that his doctor considered his respiratory problems serious, requiring urgent care, and planned to treat his back afterward. There was no testimony which disputed his explanation.
The Commission also noted that the doctor’s report from the visit in which the appellant complained of his back pain stated that he was “having lumbar pain from a fall that happened over the weekend.” The opinion then refers to a letter written by the doctor in 1990 stating that the appellant was first treated in September 1988 for “an old back injury which had become aggravated over the weekend.” The appellant explained that he fell due to the loss of control of his left leg which he attributed to the work-related fall. Again, no evidence contradicted his explanation.
Finally, the Commission found significance in the fact that the appellant had filed a previous workers’ compensation case in Louisiana while working for another employer, and that, in this case, the appellant met with an attorney about aid for his respiratory problems but failed to mention the back injury. The Commission concluded that this proved that the appellant was aware of his possible claim and his employer’s responsibility. Nevertheless, the appellant’s previous claim was totally unre lated and he testified that he had no part in its filing and that he was unaware that his current employer carried workers’ compensation insurance. This testimony was corroborated by his co-employee’s testimony that the employer did' not post any notices as to workers’ compensation claims. The appellant said that he did not mention his back injury to the attorney because he was trying to pay doctors’ bills which were attributed only to the respiratory problems.
The Commission concluded that he was diagnosed with a herniated disc five months after the fall but the pain he experienced had not been severe enough for him to seek treatment before that time. Furthermore, his effort to obtain treatment even then was secondary to obtaining treatment for his respiratory problem and that none of the medical records attributed his back pain to a work-related fall. It concluded that it could “not say there is no other logical explanation for the [appellant’s] back problems.”
The progression of the appellant’s injury is almost identical to that as found in Chambers v. Jerry’s Department Store, Inc., 269 Ark. 592, 599 S.W.2d 448 (Ark. App. 1980), where the appellant admittedly suffered a compensable injury which caused her to have pain intermittently over a period of 19 months. The appellant’s doctor testified that he was unable to say what caused the injury, but that, in reference to her work-related accident, “there [was] an excellent possibility” that it was the cause. “He further stated that assuming she had an injury in December 1976, the back or disc injury could get progressively worse without trauma and this is not unusual.” Id. at 597. The Court, in reviewing the issue of causal connection between the injury and the herniated disc, reversed the decision of the Commission which denied benefits, and stated:
The decision of the administrative law judge, affirmed by the Commission, stated the issue to be decided was ‘necessarily a medical question.’ This erroneous conclusion resulted in inadequate consideration of other facts in the record showing claimant’s back problems originated with the injury, and while at times in partial remission, were continuous from the time of the injury.
We stated that unquestionably the medical evidence was important, but that the language of the Commission and the record as a whole indicated that too little importance was given to other evidence relevant to causation, i.e., immediate onset of pain and continued physical problems after the appellant’s work-related fall. We believe the same error has been committed here.
The testimony before the administrative law judge in the case at bar was that the appellant had never had problems with his back until the fall in April 1988; that he experienced severe pain immediately after the accident; that he continued to work, though with much difficulty which was noticeable to his co-employee; and that the pain and loss of control he was having progressed to a point where medical attention was necessary.
Based on these facts, we find that the opinion of the Commission fails to display a substantial basis for denial of relief. Therefore, we reverse the decision of the full Commission and remand to the Commission to award appropriate benefits.
Reversed and remanded.
Danielson and Mayfield, JJ., agree. | [
80,
120,
-39,
-100,
10,
-31,
58,
50,
77,
-31,
-91,
117,
-81,
-74,
-115,
43,
-30,
125,
81,
63,
-41,
-77,
83,
-117,
-62,
-45,
123,
-57,
-7,
78,
-12,
-43,
77,
48,
-118,
-59,
-26,
8,
-58,
80,
-52,
7,
-101,
-18,
25,
0,
56,
46,
-48,
79,
49,
-106,
107,
46,
25,
-57,
40,
44,
107,
-88,
80,
-79,
-70,
5,
-17,
4,
-93,
4,
-100,
-81,
88,
30,
-48,
49,
0,
-20,
114,
-74,
-61,
-76,
43,
-71,
4,
98,
98,
35,
29,
-27,
108,
-72,
15,
-98,
-99,
-91,
-7,
56,
26,
35,
-112,
-67,
82,
4,
28,
124,
-6,
93,
93,
108,
3,
-58,
-108,
-109,
-49,
44,
-100,
-93,
-17,
-89,
-77,
53,
-36,
-78,
92,
4,
115,
-65,
3,
-102
] |
English, C. J.
It appears from the transcript returned’ on the writ of error sued out by George W. Mann to the-Circuit Court of Garland count}' in this case, that on thefirstof February, 1879, Jacob Kempner made' complaiut on-oath-before a Justice of the Peace of said county, charging that-on that day said George W. Mann committed the offense of taking- possession of real estate, by violence, belonging to-said Kempner in said county. That thereupon a warrant of arrest was issued against Mann, and he was brought for trial-before the justice on the fifth of the same month, pleaded not guilty, waived a jury, was tried and found guilty by the justice, and fined $50 and costs.
That on the next day he took an appeal to the Circuit Court, by filing in the office of the clerk, a transcript of the warrant of arrest and the judgment of the justice, and executed an appeal bond with G. C. Greenway and P. H. Ells-worth as sureties. The bond was dated on the fifth and filed, in the clerk’s office on the sixth of Februaiy, 1879.
That ón the nineteenth of August, 1879, Mann filed a motion in the Circuit Court to dismiss the case on thegrouiids: 1st. That Kempner was prosecutor, and was not required to give bond for costs before the Justice of the Peace, and gave none. 2nd. That the justice had no jurisdiction of the offense charged.
It does not appear that this motion was ever called up, or decided by the court, and no entry appears to have been made in the case until the August term, 1880, when the case was called, and Mann failing to appear and prosecute his appeal, the judgment of the justice was affirmed, and judgement entered against Mann and his sureties in the appeal bond for the $50 fine and for costs.
Mann, only, brought error.
I. It is made a misdemeanor by Statute ( Gantt’s Digest, Sec. 1518), to take or keep possession of any real estate by actual force or violence, without authority of law, etc., and the offense is within jurisdiction of a Justice of the Peace.
II. As to the bond for costs, appellant should have prosecuted his appeal, appeared in the Circuit Court, called up his motion to dismiss, and had it ruled upon by the court, which he failed to do.
It may be remarked, however, that if the prosecutor failed to give a bond for cost as required by section 2020 of Gantt’s Dig., or was not excused from doing so on affidavit of inability as authorized by section 2023, lb.. Mann should have applied to the Justice of the Peace to rule him to give the bond, or to show cause.
The failure to give bond for costs could only be matter in abatement, and was waived by the plea of not guilty. See cases cited in Hose’s Digest, Title Hond for costs.
III. The Circuit Court erredin rendering judgment against the sureties in the appeal bond without scire facias, as required by the Statute in force when the bond was executed. Gantt’s Digest, Secs. 2112-15. The judgment was, per haps, rendered under the Act of March 15th, 1879 (Acts of 1879, p. 84), which was passed after the execution of the bond. But the sureties did not join in the writ of error.
As to plaintiff in error the judgment must be affirmed. | [
-16,
-14,
-72,
62,
-22,
-32,
42,
-102,
-62,
-127,
-73,
115,
-23,
-42,
1,
57,
-16,
125,
52,
105,
-49,
-74,
103,
99,
-78,
-77,
-61,
-43,
50,
77,
-28,
-45,
12,
32,
-62,
93,
70,
-120,
-123,
88,
-114,
-119,
-87,
-4,
-39,
64,
48,
41,
19,
11,
113,
-65,
-5,
46,
61,
-29,
9,
44,
91,
-71,
-56,
-7,
-69,
109,
-53,
22,
-96,
21,
-36,
2,
124,
58,
-72,
21,
0,
-8,
115,
-122,
6,
85,
13,
-72,
45,
102,
102,
49,
-3,
-57,
-24,
-87,
47,
-89,
-99,
-89,
-45,
96,
75,
45,
-10,
-103,
125,
16,
3,
-12,
109,
-123,
24,
108,
3,
-49,
-44,
-65,
-113,
120,
-114,
91,
-33,
44,
52,
112,
-59,
-84,
93,
101,
113,
59,
-114,
-11
] |
Harrison, J.
There was no evidence that the defendant -obtained any money from Mattingley. Proof that by the false pretense alleged, he procured the satisfaction of his indebtedness to Thompson by him, though sufficient to sustain an action by Mattingley against him for money lent, was irrelevant to the charge in the indictment. The money must have been actually, and not merely implied^ or constructively obtained, and must have come into the defendant’s possession.
Mr. Bishop says : “It is held that if the thing obtained is not money, or other article within the express words of the Statute, but merely a credit on account, which may bring money, the substantive offense is not committed.” 2 Bishop Crim. Law, see. 480.
The second instruction asked by the defendant, and refused by the court, was, therefore, correct; and the verdict was clearly against the evidence.
There was no description of the money in the indictment. It should have been described with as much particularity and certainty as in an indictment for larceny. The indictment was, therefore, bad. Treadway v. The State, ante. Barton v. The State, 29 Ark., 68; Smith v. The State, 33 Ind., 159; 2 Bish. Crim. Proceed., secs. 173, 703.
The judgment is reversed, and the cause remanded, with instructions to arrest the judgment. | [
50,
-24,
-24,
30,
74,
-32,
42,
-70,
-63,
-93,
117,
51,
-19,
70,
16,
59,
-12,
121,
84,
96,
69,
-73,
39,
113,
-14,
-77,
89,
-25,
-75,
109,
-28,
-43,
77,
48,
-62,
-11,
102,
-53,
-31,
112,
-114,
-123,
-88,
78,
-7,
12,
52,
39,
20,
11,
113,
-98,
-29,
43,
24,
67,
73,
44,
75,
57,
112,
-16,
-110,
-115,
95,
6,
-77,
52,
-116,
35,
-40,
60,
16,
49,
1,
-8,
123,
-74,
-126,
84,
45,
-119,
-120,
98,
98,
32,
33,
109,
56,
-36,
126,
126,
-99,
-90,
-48,
73,
11,
109,
-105,
-97,
102,
17,
-122,
100,
-16,
85,
25,
108,
35,
-33,
116,
-77,
-87,
60,
-102,
3,
-57,
-77,
20,
113,
-51,
-110,
88,
53,
56,
-101,
-98,
-109
] |
OPINION
Eakin, J.
This is a bill and cross-bill between claimants of the same land under conflicting deeds from the State, each seeking to have his own title quieted, and that of the other, cancelled.
The controversy- involves two distinct tracts; one, embracing the north half of the southwest quarter, and the northwest quarter of the southeast quarter of the section, consisting of three forties lying side by side, was forfeited to the State for the taxes of 1870. The other, consisting of a single forty, to-wit: the southwest quarter of the southwest quarter, lying contiguous to one of the forty acre tracts in the first, was forfeited for the taxes of 1871. All were originally school lands, lying in section 16 of Township, 2 North, Range 9 West. There is nothing to show that they had previous to their respective forfeitures, been owned or claimed together.
The first named tract, after its' forfeiture, had been sold under a decree of the Pulaski Chancery Court, against the former owner, in favor of the State for the purchase money.
The complainant, Robinson, claimed under the purchaser, an equitable title1 by parol contract, and part performance. He claims also, to have made valuable improvements before the seventeenth day of December, 1877, with a view to building and cultivation. At that date defendant, Simpson, applied to, and obtained from, the State Land Commissioner a donation of both said tracts, making in all, one hundred and sixty acres, of which one hundred and twenty acres were in the same quarter section and forty in the one adjoining.
Afterwards, complainant Robinson, on the eighteenth day of February, 1878, and after the expiration of three months from the date of the donation to Simpson, made an affidavit that at the time of said donation, he was himself the owner of an improvement upon said lands, describing both tracts ; that said improvements were worth one hundred dollars, and that neither Simpson nor anyone for him had paid or tendered him the double value of said improvements, or any other sum. Upon filing this affidavit with the Land Commissioner, he was allowed to purchase all of said lands for arrearages of taxes, in accordance with the Act of January 11, 1851, and the Commissioner executed to him a deed accordingly.
The Chancellor, upon the.hearing, found that the improvements were real, substantial, and such as it was the policy of the law to protect, but that they had not been made by Robinson with any reference to the southwest quarter of the southwest quarter of the section, and could not be made to cover more land than complainant then claimed, or intended to claim, when the improvements were made, and limited the extent of his relief to the lands he had purchased, and was improving for his own use. Whereupon a decree was rendered in effect quieting the title of complainant Robinson to the north half of the southwest quarter, and the northwest quarter of the southeast quarter ; and that of defendant Simpson, to the southwest one-fourth of the southwest one-fourth of the section. The costs were divided.
The depositions conduce to show that Robinson, after his ' parol purchase of the lands in 1877, entered in good faith upon the three forty-acre tiacts, without any knowledge at the time, that they had been previously forfeited to the State for non-payment of taxes, tie considered and used the land as his own, selling from it wood and cross-ties. He deadened five or six acres of wood land in the manner usual in bringing lands into cultivation;' and had removed the shrubs, and cleared off a portion of that which had been deadened. He had made rails, and house logs had been prepared for fencing and building, but never put up. After-wards, and for at least a year before the donation to Simpson, there was a cessation in the work of improvement. The cleared land had grown up with sprouts, and the greater part, almost all indeed, of the rails, and house-logs had been hauled off and used upon another place by Eobinson, or with his consent. Although the deadening was of some value, it could not have been worth near the amount ■claimed, to any one who might wish to resume and complete the improvement. It is tolerably plain, also, that the deterioration of the land from the cross-ties and other timber hauled away, more than counterbalanced the enhancement ■of value arising from the work.
The defendant (appellant) contends that under this state of the testimony there was really no improvement which, under the policy of the law, he was bound to notice or pay for, and that the subsequent purchase by Eobinson, or an <ex-parte application, without notice, was fraudulent.
An “improvement” under our land system does not J ■a general enhancement of the value of the tract'from occupant s operations. It has a more limited meaning, which has in view the population of our forests, and increase of agricultural products. All works which are directed to the creation of homes for famlies, or which are substantial steps towards bringing lands into cultivation, have in their results the special character of “improvements,” and under the land laws of the United States, and of the several States, are encouraged. Sometimes their minimum ■extent is defined as requisite to convey rights. In other ■cases not. But the test which runs through all the cases, is always this: Are they real and made bona, fide in accordance with the policy of the law, or are they only color— •able and made for the purpose of fraud or speculation ?
A review of all the testimony leaves but little-doubt that Robinson’s deadening, clearing, etc., was made in good faith. There is no evidence to show that he then doubted his title, or knew of the previous forfeitures, or was fortifying against a donation not actually made to another,, until more than a year after he had ceased his improvements and taken away his rails and house logs.
He would not have been apt thus voluntarily to diminish the value of any improvements made with colorable motives. There is every indication that he had it in view to-open the land and build a house. The deadening was a, necessary step, and so far an improvement.
After the removal of the rails and house logs it was certainly of no great value, but if there was any value at all, of a real and substantial nature, the amount was not important, nor could it be cancelled by deterioration of other parts of the land, not interferring with the immediate purposes of' the improvement. Whether the value was much or little, it was the duty of Simpson to take cognizance of it, upon examination of his gift, ascertain the value, and tender a double amount to Robinson. The finding of the Chancellor,, that the improvement had a substantial value, at the time of the donation, seems tobe sustained by the preponderance of the testimony. It would not be disturbed if the-balance were even, and we therefore find no error in that.
There is nothing in our past legislation which better illustrates the extreme tenderness of the State towards owners, of bona fide improvements, and jealousy in guarding them* than this act of January 11, 1851, taken in connection with the provisions for donations. It has been repealed since-the transactions involved in this case took place; but was-for eighteen years the settled policy of the State. It was-felt at an early period, that the true prosperity of the State and the growth of her taxable resources depended upon the multiplicity of actual settlers, whilst the greatest impedí ment, in the way of such results, was to be apprehended from the accumulation of large quantities of her rich but unreclaimed forests, in the hands of capitalists, to be held for speculation. In accordance with this policy the courts have been moi’e liberal, perhaps, than those of any other State, in sustaining tax titles, against mere technical objections, when taxes have been actually due and. neglected without reasonable cause.
As early as 1840, for the double purpose of encouraging-actual settlers and protecting those showing an intention to-become so, laws were passed for donations in limited quantities, to heads of families, of lands which had been forfeited for taxes, and fruitlessly offered for sale by the Auditor. They were made on certain conditions of improvement, to be made in a time adapted to the ability of the poorest immigrant. But these donations, even upon such conditions, were considered mere matters of grace. They were not called upon to-advance arrearages of taxes, or pay any thing whatever. But it was sternly exacted of them, that, in their selections, of forfeited lands, they should respect the claims of the unwary, or the unfortunate, whose improvements had been forfeited, so far, at least, as to pay them the double value-of their improvements. Originally this was not, however, made a condition of the donation. The improver was driven to the courts to recover. Experience soon-showed, what might indeed have been obvious at first-, that this afforded but little protection to a class of meu too poor for litigation.. Besides, no time was fixed for the payment; hence the act of January 11th, 1851. It recited the inadequacy of the existing law and provides (as adopted in Gantt’s Digest„ section 3905), that:
“It shall be the duty of every person who has obtained a donation of a tract of improved land, within three months from the date of' the deed, to pay to the owner of such im provement double the value thereof; and to take from such person his receipt for the amount of money so paid ; which receipt shall, within thirty days thereafter, be filed with the Auditor ; and should any such improvement not be paid .for by the donee, and his receipt, showing such payment, shall not be filed with the Auditor, within the time prescribed, ■such donee shall forfeit all right to the land; and the owner of such improvements, upon filing with the Auditor his affidavit, stating that he owned an improvement on the land •at the time it was donated, and that the donee has not paid nor tendered to him double the value of such improvement, if the time allowed for making such payment, and for filing the receipt as evidence thereof, shall have elapsed, shall be allowed to purchase said land, including his improvement, by paying all arrearages of taxes which may be charged thereon, in the same manner as if the land had never been donated ; and the Auditor shall execute to such purchaser a deed for the same, which shall have the same validity, force .and effect, and be evidence of title, as other deeds executed by the Auditor for lands sold for taxes.”
This act was sustained and construed in Lacefield v. Stell, 21 Ark., 437, which, like this, was a case of contest between a donee (who was a minor) and the unpaid owner of ■an improvement; who, upon his affidavit, was subsequently allowed to purchase from the State, under the act. It was not necessary to decide in that case, as it is not in this, whether or not one having an improvement on the land at the time of forfeiture ceased to become the owner, and thereby lost the benefit of the act. It seems that such a •construction would contravene the policy of the act, but the question does not arise. The improvements in this case were made after the forfeiture. That case settles the question, that no demand of payment by the improver was re■quired, nor notice to the donee of the subsequent ap.plica tion to purchase. The same points were expressly ruled in Surginer, Adm’r., v. Paddock, 31 Ark., 529, in which case it may be remarked, en passant, that the question did arise, and was much pressed, as to the time of the improvements. The court failed to see that it was material whether the improvements were made before or after the forfeiture; holding that although technically the improvements passed to the State with the land, yet she might, and intended as a matter of grace, to treat the former owner as against her donee, as still the owner. In which view, as remarked by Justice Walker: “If it is the pleasure of the Legislature’ to give the land to a person, on condition that the donee shall, within a prescribed time, pay or tender to such owner of an improvement double the value thereof, and the donee accepts the gift on such conditions, what right has he to complai n ? None, we think. ’ ’
So far as the decree of the Chancellor asserts the right of Eobinson to purchase of the State the lands upon which his improvements were made, without demand of the double value from the donee, or notice of his application, and at the proper time, to receive a deed from the Commissioner (to whom that power is now transferred), the views of the Chancellor were well sustained, upon authority. We think, toó, upon principle, and a fair construction of the act, that' his right to purchase was limited to the lands which he-claimed when the improvements were made. He made the improvements to enhance the value of property which he held by metes and bounds, under a parol contract, and which were efficient to give him equitable title, as part performance. The adjoining forty was not in his contemplation, and the improvements cannot well be considered as. extending to it. Upon all the points made and argued in the court below, or here, the views of the Chancellor are-.sound.
We caunot, however, overlook some other points presented by the record, which ought not to be passed sub silentio, as they so enter into the case that to do so would lead to error.
The purchase by complainant for arrearages of taxes, by virtue of his unpaid improvements, was clearly and palpably premature. The forfeiture of the donee could not occur J L un(jer the act, where the improvements were not actually paid for, until the expiration of three months, and the thirty days allowed to file the receipt with the Auditor. This time had been allowed to expire in the cases of Lacefield v. Stell and Surginer, Ad., v. Paddock (supra), so that the construction of the Statute did not arise. In this case the owner of the improvement was allowed to purchase at the expiration of three months and two days. It was a matter of power, and the Commissioner could not make the deed sooner. It is no answer to say that as the payment had not been made within the three months, it would have been a vain thing to give thirty days for the filing of a paper, the very existence of which had become impossible. There is no reasoning against Statutes conferring powers, on certain conditions where there would be no powers nor equities independent of the Statute. Ita lex scripta est, is then imperative and inflexible. The conditions must exist; besides, the law is reasonable. If the purchase, on one hand, is to be allowed on the mere affidavit of the applicant, as to the jfact that no payment had been made, it is but just on the other that the fact should be further rendered probable by the failure of the donee to file the receipt within .the time required. There should be no action until the full time ■expires. The deed of complainant from the Commissioner was wholly void, and offered no basis for any relief.
But there is a prayer for general relief, and we are brought to consider whether there was anything else in the ■case, which might properly be shown, under the pleadings, to entitle complainant to the relief granted, or any other.
It is shown the lands were 16th Section lands. By act •of July 25, 1868, the proceeds of the sale of all those lands had been taken under the control of the State, and transferred to the Common School Fund. They were the property of the State, and held for Common School purposes. 'The State had a lien upon all those lands which had been or might thereafter be sold for the payment of the purchase money.
The pleadings and the Commissioner’s deed exhibited, •show that the tract of land first mentioned, composed of the three contiguous forties, being school lands, had been sold under a decree of foreclosure in the Pulaski Chancery 'Court, in favor of the State, for the purchase money, rendered on the thirteenth day of June, 1873, against one J. ■Scott Gray; and had been purchased at the Commissioner’s sale, on the twenty-seventh day of July of that year, by A. ■J. Ligate, for $138, to whom the Commissioner executed a ■deed, and that the sale had been duly reported to the court ■and approved. It further appears, from the pleadings and •evidence, that Ligate bargained and sold said lands' to one 'Thomas Staggs, who, on his part, in 1874, bargained and ¡sold the same by parol contract to complainant; and that •complainant, on his part, entered upon the lands in pursuance of said contract, and made the improvements under which he claimed. It was only by taking cognizance of the facts, and of complainant’s equitable claim and its extent, that the Chancellor could find grounds for limiting the relief "to these three forties, and refusing to extend it to all the lands embraced in his subsequent purchase from the State for arrearages of taxes. It is interesting to trace the rights and equities of the. several parties, as they were affected by these facts, and the forfeiture of the lands for taxes in 1871.
By act of January 10, 1851 (Gantt’s Dig., sec. 3984)* “No tax title shall be valid or binding against the equitable or legal interest of this State, in any real estate whatever ;■ but such tax titles are and shall be void, so far as the same shall conflict with the interest of the State, and shall be treated and considered as null and void in all courts.”
Denuded of tautology, this means that tax titles are good, except in so far as they conflict with the vested interests of the State.
No taxes accrued upon these lands in question, until after sale for the benefit of the school fund. The lien of' State for the purchase money was prior and superior to her lien for taxes going to her general revenue. Upon foroío o i feiture for these taxes, the whole title vested in the State, but her lien for the school fund was not thereby merged in her legal title. The doctrine of merger never applies where there are any equities which would be thereby defeated. She claimed the forfeiture for general purposes, but the lien for the school fund was a trust in her hands, she held in accordance with these equities; that is, the lands were hers for general revenue purposes — subject, in her hands,, to the satisfaction of the debt due the school fund.
If, in this state of things, she had made a donation, the donee would have taken just what she got by the forfeiture ; that is, the lands subject to the school fund debt, which the ' donee might have redeemed. If afterwards she had foreclosed without making the donee a party, it might be a question whether this right of redemption would be taken away; a question not indeed without difficulties. But the foreclosure in this cas'e does not raise the question. At the time the decree was made, and the lands- sold, under order of the Chancery Court, there were no outstanding interests to be preserved — no interests not owned and constructed, by the State herself, which was in court, making the foreclosure. The legal result would be that the sale under the first lien would pass the whole title, legal and equitable. The trust would be fulfilled, and that is all to which a court of equity would feel constrained to look. If her lien for arrearages of taxes be thereby lost, it is a matter disconnected with the trust, and results from imperfect legislation on a complicated subject.
It is not necessary to consider whether or not the State-might, by a bill properly framed, have foreclosed for the whole that was due, applying the proceeds first to the school fund, and the surplus to the general revenue, nor whether her failure to do so indicated an intention still to retain the power to redeem from the purchaser for general revenue purposes. There was no necessity for such a proceeding. She was entitled to the whole surplus, much or little, by virtue of the forfeiture, which was absolute.. In either case the full and complete title would pass to the vendee of the court.
. The equitable right to this title had become vested in the complainant, Robinson, and he was entitled to the decree,, which he, in fact, obtained.
Upon the whole case, let it be affirmed. | [
-16,
109,
-104,
28,
-24,
-128,
40,
-126,
99,
-95,
-90,
83,
45,
-62,
21,
117,
-29,
125,
-39,
107,
-58,
-26,
19,
-93,
-78,
-77,
-15,
79,
53,
-51,
-28,
-41,
76,
36,
-62,
93,
70,
-62,
-19,
84,
-114,
15,
-85,
74,
-35,
96,
54,
45,
82,
75,
113,
31,
-9,
45,
24,
-57,
105,
44,
-53,
41,
1,
-6,
-65,
-51,
123,
14,
17,
102,
-71,
67,
-54,
106,
-112,
53,
-124,
-88,
123,
-90,
-106,
116,
9,
-103,
9,
102,
102,
17,
-19,
-17,
-24,
-104,
46,
123,
-115,
-90,
-14,
88,
2,
0,
-67,
-99,
117,
-112,
71,
118,
-28,
4,
20,
60,
37,
-118,
-106,
-77,
15,
-68,
-128,
39,
-13,
43,
50,
81,
-55,
102,
93,
119,
49,
27,
-114,
-4
] |
Eakin, J.
The appellee, Hamblin, sued Gilmore in an action at law, with an attachment against him as a nonresident. The complaint is in effect for money paid with •out consideration, of which the prayer seeks recovery or specific relief. The alleged grounds are that plaintiff had purchased of defendant a tract of land, and paid therefor •the sum of $375, and taken a deed with covenants of title, good right to convey, etc., and that defendant had no title, ;and plaintiff never obtained possession. The complaint might stand, also, by being made a little more definite, as an old action of covenant upon the deed, but in either aspect, the decision of this case would be the same.
The defendant answered, confessing that he had no title ■whatever to the lands described in the deed, and saying that ihe never meant to convey them, nor plaintiff to buy them ; that there was simply a mistake in the numbers. He offers, .and brings into court, a deed for the lands which he says he intended to convey, and which were the lands really purchased, and concerning which there is no question of title. He says further that he had previously sold a large tract to •one Ludwick, including the land afterwards purchased by plaintiff; and that before the execution of any writing to Ludwick, plaintiff agreed with Ludwick to take the land intended, and to pay Ludwick $3 per acre more than Ludwick was to pay defendant, and that by direction and consent of all parties, he executed to plaintiff a deed intending to describe the land selected; the plaintiff, instead of Ludwick, paying him for that portion. He describes the land intended to be conveyed, and which-was really purchased by plaintiff as ihe S. W., corner of the N. E. quarter and part •of the S. E. corner of the N. W. £ of sec. 29, T. 6, R. 19, making in all twenty-five acres. He simply seeks his discharge and costs, and makes no counter claim, although there is a prayer for general relief.
A demurrer to the answer having been overruled, the plaintiff, unnecessarily, made a reply. This is not Code practice. New matter in an answer not constituting a counter claim, or set-off, is put in issue by the Code without a reply, and the onus is on the party pleading it. The-allegation^ and explanations of the reply will be passed! without comment. This we can more safely do, as the plaintiff gave his testimony. By consent the cause was heard in equity.
The evidence leaves no doubt that Gilmore was the owner of the whole northern fraction of section 29, in T. 6, North-Range 19, West, which consisted of the N. W. -j- of the-section in full, and a small fraction of the S. W. part of theN. E. J of about ten acres, which lay between the N. W. -J and the Arkansas river. He had verbally agreed to sell it to Ludwick for $15 an acre. Then plaintiff agreed with Ludwick to take twenty-five acres of it and to pay Ludwick $3 per acre beyond-the purchase money. They went to Gilmore together, and plaintiff paid him for twenty-five acres of the land he had agreed to sell Ludwick the sum of ,$375, .being at the, rate of $15 per acre. The $3 extra he afterwards paid either to Ludwick or for his benefit. The part of the land plaintiff was to take, had been agreed upon between him and Ludwick; and Gilmore was honestly endeavoring to carry out their intentions. No fraud appears anywhere.
When the money was paid, Gilmore gave plaintiff a receipt, expressing that it was in full “ for twenty-five acres off the. S. E. corner of the S. E. of the section. An obvious mistake. No such piece was in the-body of land sold to Ludwick. Afterwards Gilmore, still in good faith endeavoring to carry out the mutual understanding, executed to plaintiff a deed for twenty-five acres in N. E. corner of the S. W. of the section, which was-just as wide of the mark as the receipt, and for the same reason. This is the deed upon the covenants of which the complaint is partty founded. To seek to- enforce them is- simply absurd. If the plaintiff knew of the mistake when Tie accepted the deed, and took it for the purpose of getting his purchase money back through the covenants, he would not appear in court with clean hands. If he did not, then the mistake was mutual, and the equitable defense should never have, become necessary. Upon its discovery the plaintiff should have returned the deed and sought its correction, which if not made voluntarily, he might have •obtained at defendant’s cost. The real question is, can plaintiff have return of his purchase money, as paid without ■consideration; or, if not, can he have any appropriate relief in equity?
Pursuing our view of the evidence, it appears that plaintiff acknowleges and insists in his evidence, that the portion which he really agreed to take, although deceived as to its ■value, was twenty-five acres out of the 8. J3. corner of the IV. W. J of the section, and he says that Ludwick agreed to give him, in addition, the fraction between that and the river, already spoken of as comprised in the S. W. corner •of the N. E. A, and which seems to have been of less value.
The deed tendered in court by defendant conveys that ■fraction and enough more out of the S. E. corner of the N. W. to make out twenty-five acres. This is all the real difference between the parties, as to facts, concerning which there is a conflict of evidence. In a letter written by plaintiff to defendant, and which he himself introduces, he «ays that he really wanted the S. W. ^ of the N. W. and was still willing to take that; but does not offer the take a deed for the S. E of the N. W. The letter is rather an •■appeal for a return of the money, as it belonged to orphans,- =and because the plaintiff had mistaken the value of the land •he had agreed to take. There is no proof of any special request on his part for a deed for the twenty-five acres out ■of the S. E. A of the N. W. J.
The chancellor found, generally, that the allegations of plaintiff’s complaint and reply were sustained by the proof,, and rendered judgment for the full amount of the claim against the defendant and his sureties, in a bond which had-been given to dissolve the attachment. .
We cannot concur in the view taken by the chancellor, of the equities of the parties. The defendant had sold his lands in solido, for so much per acre. If there had been no interference on the part of the plaintiff, no trouble would have-arisen. The defendant, to accommodate plaintiff and Ludwick, in a division of the purchase, agreed to make them separate deeds, according to agreements. He could have-had no possible interest in giving any particular part to one more than the other. He assumes an extra trouble, without compensation, conveys all his land to the two parties-between them, and gets precisely the price bargained. More than that, he seems honestly to have endeavored, and still stands ready, to correct any error in the conveyances,, and is before the court to do what may be required. Upon what principle of equity he can be compelled to refund a. large portion of the purchase money, pay the costs of the-suit, and go out, rétaining a part of his land which may be unsalable, when he meant to sell the whole, and should have been allowed to do so without interference, is not. clear.
Upon the other hand, plaintiff interfered in a purchase-already agreed upon ; sought to enjoy its advantages, without any additional advantage to the vendor; was present when all the transactions were had; agreed to accept a. •portion for his share, which he afterwards finds to be a, bad bargain; has an equal opportunity to correct all mistakes ; stands equally within the range of laches for nob-doing so; accepts papers of different sorts with misdescriptions, and now seeks to make these mistakes the ground of asking a Court of Equity to assist him in ruing a bargain of which he is tired ; and, in doing that, seeks to put defendant in a worse position than he found him. There is not a suspicion of fraud in the conduct of defendant throughout.
' The chancellor should have done justice as nearly as possible with the «means at hand ; should have determined from preponderance of testimony, if it could not be done certainly, what tract plaintiff agreed to take, and which, at the time of the payment, defendant intended to convey; and compelled him to take it if the deed accorded therewith., dismissing defendant, with or without cost, as the chancellor might deem him more or less guilty of laches. If the presence of Ludwick was necessary to a settlement of the litigation, he might have been, and may yet, easily be brought in, so that the true boundaries may be decreed between him and plaintiff, if the court should direct any change in defendant’s deed as tendered.
As the cause must be remanded, we forbear to express an opinion as to the weight of the evidence with regard to the precise tract which plaintiff was to have, or its boundaries. It is a matter rather between plaintiff and Ludwick, than one which concerns the defendant. He has denuded himself of all title to the whole, and got only his fair price. He had nothing to do with the determination of the boundaries on partition ; and, save as to such costs as the chancellor may see fit to impose on him, may very properly be discharged from the suit.
The deed which he tendered in court seems, from the evidence, to have been drawn with reference to a marked plat which the parties had before them, but it does not refer to the plat, nor describe the lands with such precision as to enable a surveyor certainly to lay off the boundaries. No objection is made to it on that account,-and it may be that it is sufficiently definite to suit the purposes of plaintiff and Ludwick, if it be found in accordance with the agreement. If not, or if for any purpose, or on any account, a readjustment of boundaries may be necessary, Ludwick must be brought in, so that the court, by decree, may bind both him and plaintiff, and give plaintiff his twenty-five acres just where he ought to have it, according to the bpst opinion the chancellor may be able to form. The defendant cannot be placed in statu quo, and it would not be equitable to cancel ai|y Pai'k °P Pis sale. He got the purchase money honestly, and may equitably keep the whole. This may well be done, ¿ x j x j ? ^or it does not appear that any portion of the land has been &0jcj ];)y Ludwick to an innocent party, and if it has, the purchaser, through Ludwick’s deed from Gilmore, would ha've notice of the indefinite nature of the boundaries, and would hold subject to their correction.
Reverse the decree, and remand the cause for such further proceedings as may be had in accordance with this opinion, and the principles and practice in equity. | [
-78,
108,
-40,
13,
-102,
32,
42,
-72,
89,
33,
103,
87,
-51,
-62,
-124,
39,
-32,
73,
113,
106,
87,
-73,
15,
98,
-46,
-77,
67,
69,
-75,
-52,
-28,
-42,
76,
32,
-62,
21,
-29,
32,
-51,
-100,
14,
-123,
11,
76,
-111,
64,
48,
57,
80,
79,
113,
-105,
-13,
38,
49,
67,
104,
46,
-1,
41,
-128,
-24,
-66,
12,
127,
7,
17,
7,
-8,
51,
-54,
44,
-112,
49,
3,
-23,
123,
-90,
-122,
116,
11,
-103,
8,
102,
102,
32,
109,
-1,
-104,
-103,
46,
126,
13,
38,
-15,
104,
43,
105,
-75,
-99,
119,
64,
39,
116,
104,
-99,
28,
108,
3,
-53,
-42,
-90,
-115,
-68,
-104,
3,
-58,
15,
21,
113,
-49,
-30,
92,
103,
48,
27,
-97,
-5
] |
Eakin, J.
The appellant was indicted, under an Act, ih 11th, 1879, “For the prevention of cruelty to animals.” The first section, inter alia, makes it a misany # approved March 11th, 1879, “For the prevention of cruelty 1 demeanor to “ needlessly mutilate or kill” * living creature.” The indictment simply charges that appellant did, unlawfully and needlessty, kill a hog, of the value No allegations of of five dollars, being a living creature, value, or of ownership, were essential.
The proof, on the part of the State, tended to show that appellant had killed a pig, belonging to a neighbor, by a blow on the head with a stick, producing sudden death. The pig was in a field belonging to appellant, in which corn and wheat were growing. It had, before that time, been in the habit of trespassing there with others, and the defendant had repeatedly applied to the owner, a lady, to pen her hogs, or keep them out of his field. This, for a while, she did. But they were again turned out, and the one in question being found again in appellant’s field, he killed it on the spot — with no more circumstances of cruelty than would attend the taking of life at one blow.
On defendant’s part, the proof — besides that the pig had been several times in.the field, eating corn and wheat— tended further to show that it was a very small one, which could easily get between the rails of any ordinary country fence, and that there was around that field a veiy good fence.
There was proof; on both sides, as to the value, and some tending to show that appellant had paid the value to the owner — all of which was entirely irrelevant, save as it might, as part of the res gestee, show the purpose, or motive, of the killing. Payment to the owner could not atone it, if it were needless in the sense of the Statute, nor would failure to make compensation aggravate the offense.
Upon the trial, defendant asked six instructions, which were refused throughout. In lieu thereof, the court gave two of its own motion — all against objection. The defendant was found guilty, and sentenced to a fine of two dollars. He moved for a new trial upon the grounds of ei’ror, in refusing the instructions asked; in giving those by the-court of its own motion; and because the verdict was against law and evidence. The motion was refused, and he appealed.
This court is called for the first time to construe a new-statute, belonging to a class which must ever be more or less vague in their meaning, and extremely difficult of administration. They are the outgrowth of modern sentiment, and are of comparatively recent origin. They attempt-to transcend what had been thought, at common law, the practical limits of municipal government. They spring, originally, from tentative efforts of the New England colonists to enforce imperfect but well recognized moral obligations ; a thing much more practical in small isolated communities than in populous governments. They first had in view only to compel benevolence and mercy to those useful animals, which being domesticated, and wasting their lives in man’s service, were supposed to be entitled to his kind and humane consideration. Such statutes appealed strongly to the instincts of humanity. They were adopted in many of the States, and recently in England ; and the impulse which favored them has endeavored to enlarge their beneficence, until, in our law they are made to embrace “ all living creatures.” It is obvious that laws of this class, pressed to this extreme limit, must be handled by the courts with great care, and we feel it due the Legislature to do so, to prevent their becoming dead letters. They must be rationally construed with reference to their true spirit and intention. It must be kept in mind that they are not directed at all to the usual objects of municipal law, as laid down by Blackstone. For example : They are not made for the protection of the absolute or relative rights of pei’sons, or the rights of men to the acquisition and enjoyment of property, or the peace of society. They seem to recognize and attempt to protect some abstract rights in all that animate creation, made subject to man by the creation, from the largest and noblest to the smallest and most insignificant. The rights of persons and the security of pro perty and the public peace, are all protected by other-laws, with appropriate sanctions. The objects of the two classes should not be confounded. It will lead to hopeless confusion. The peculiar legislation we are now called to-discuss must be considered wholly irrespective of property,, or of the public peace, or of the inconveniences of nuisances. The misdemeanors attempted to be defined may be as welL perpetrated upon a man’s own property as another’s,, or upon creatures, the property of no one, and so far asoné act is concerned, it is all the same whether the acts be-done amongst refined men and women, whose sensibilities would be shocked, or in the solitude of closed rooms or secluded forests.
It is in this view that such acts are to be construed, to give-them, if possible, some beneficent effect, without running into such absurdities as would, iu the end, make them mere dead letters. A literal construction of them would have that effect. Society, for instance, could not long tolerate a system of laws, which might drag to the criminal bar, every lady who might impale a butterfly, or every man who might drown a litter of kittens, to answer there, and show that the act was-needful. Such laws must be rationally considered, with reference to their objects, not as the means of preventing' aggressions upon property, otherwise unlawful; nor so as to-involve absurd consequences, which the Legislature cannot be supposed to have intended. So construed, this class of laws may be found useful in elevating humanity, by enlargement of its sympathy with all God’s creatures, and thus society may be improved. Although results in other States- and in England, have not, as we judge from the paucity of decisions, been such, as to excite sanguine hopes, yet to a limited extent the objects of the laws may be practically-obtained. It is the duty of the courts to co-operate to that-end, so far as the rules of construction may warrant.
There are civil laws for the recovery of damages for trespass, and criminal laws for the punishment of malicious mischief, and trespass and injury to property. In a suit'or indictment, under these, there are appropriate defenses, not applicable to an indictment for cruelty or for needless killing. They should, one or the other of them, have been resorted to by the individual, or the State, if the object had been to recover damages for the loss of the pig, or to protect societj’" from violent aggressions on property. The law under which this indictment was framed has no such object, and cannot be made a substitute for the others. The issue was, did the defendant needlessly kill the pig. The burden of proof was upon the State to show not only the killing, but 1 _ J ° that it was done under such circumstances as, unexplained, would authorize the jury to believe that it was needless in the sense of the Statute. The controversy does not turn at all upon the lawful ness or unlawful ness of the act, except in so far as the Statute itself might make it unlawful as needless.
From the view we have taken of the nature and scope of this class of acts, it is obvious that the term “needless” cannot be reasonabty construed as characterizing an act which might by care be avoided. It simply means an act done without any useful motive, in a spirit of wanton cruelty, or for the mere pleasure of destruction. • Other portions of the act are-directed to prevent undue torture,.or suffering, which do not come here in question. However unlawful the act may be, and whatever penalties might be incurred under the Statutes, the defendant should not, under this indictment, have boon convicted, if he had some useful object in the killing, such as the protection of his wheat and corn.
The provisions of different Statutes must be regarded; ■and acts really criminal, must be punished under appropriate indictments. Malicious mischief and needless killing are distinct.
The defendant, in effect, asked the court to instruct:
First. That the burden was on the State, to show not. only the killing but that it was needless, and that ‘ ‘ needless ’ ’ meant a killing in mere idle wantonness, without being in any sense whatever beneficial or useful to defendant. .
Second. That it was for the jury to determine whether- or not it was “needless,” and that they might consider the facts, that the pig was found in the field where there was corn and wheat, that it had frequently been there before,, and all other facts and circumstances in evidence.
Third. That the jury must find before conviction that there was no necessity or cause whatever for the defendant to kill the animal.
Fourth. That considering the circumstances, if the jury-found that the animal was trespassing upon the defendant’s-crops and destroying them, and that he had up to the time of the killing used all reasonable means to prevent it, and that the act of killing did prevent it, they would be warranted, in finding that it was not needless.
Fifth. That the word “needlessly,” used in the Statute,, relates to a wanton and cruel act, and not to one which is the result of necessity, or reasonable cause.
Sixth. That unless the defendant was guilty of wanton and needless acts of cruelty to the animal, resulting in unjustifiable physical pain, they should acquit.
We think that the spirit of all the foregoing instructions, except the last, was in harmony with the true intent and meaning of. the Act — as nearly so as moral acts can be-characterized by the formulas of language — at all times a. difficult task. They are very nearly in accord with the views we take of the Statute. The last was erroneous. A needless killing could not be justified by an easy death.. Cruelty was no part of the • charge, although it is made-criminal under the other sections.
The instructions given by the Court, of its own motion, were as follows:
First. That the proof of killing a pig would support the allegation of the killing of a hog.
This is unquestionably correct.
Second. “If the jury believe from the evidence that defendant, in this county,” etc., * * * “ needlessly killed the animal mentioned in the indictment, they should convict, notwithstanding it may have been trespassing within defendant’s inclosure at the time it was killed. ‘ Needlessly ’ means without necessity, or unnecessarily, as where one kills a domesticated animal of another, either in mere wantonness or to satisfy a depraved disposition, or for sport or pastime, or to gratify one’s anger, or for any other unlawful purpose.”
But for the last clause of this instruction, it would not be, in the abstract, subject to criticism, but it is, we think, erroneous in holding all killing needless, in the sense of the Statute, done for an unlawful purpose. For unlawful trespasses, other remedies are provided. There are other Statutes for their prohibition. All acts of killing are not “needless,” in the meaning of the Statute, which are unlawful. A 'man, for instance, might kill his neighbor’s sheep for food, which would be unlawful, and either a trespass or felony, according to the circumstances ; but such killing could not, with any show of reason, come within the of the Act in question. ' The lawfulness, or un- . . of the act, has really no bearing; upon its char-J i a°ter> as charged.
Had the last clause been omitted, in this instruction, it would not, however, have been sufficiently instructive, in all points, to have caused the réfüsal to give the defendant’s first five instructions, in substance, as asked. He was en titled to have them particularly impressed upon the jury, in ■a matter which, being new, they might misapprehend.
The first of the English Statutes directed to the enforcement of benevolence and kindness to inferior animals, was passed in 1822. It was to prevent “cruel and improper treatment of cattle.” It contained a provision that, “if the complaint should appear to the magistrate, on the hearing, to be frivolous, or vexatious, then the complainant was to be ordered to pay to defendant any sum of money, not exceeding the sum of twenty shillings, as compensation for the trouble and expense to which said party may have been put by such complaint.”
This was a wise precaution. The case now before us, is ■strongly suggestive of the necessity of some such safeguard in the administration of a Statute- of much wider scope, •embracing all living creatures. This is a matter, however, for the legislative department. The power of the judiciary ■onty extends to see that a Statute, so well intended, shall not be extended to absurd consequences, and ’brought into contempt by too literal a construction of language.
For error in overruling the motion for a new trial, reverse the judgment, and remand the cause for further proceedings, consistent with law, and this opinion. | [
48,
-20,
-36,
-81,
40,
32,
40,
-70,
67,
-127,
-11,
83,
77,
-45,
21,
113,
97,
-3,
-36,
57,
-44,
-74,
55,
66,
-78,
-13,
-127,
-41,
-79,
109,
-27,
-1,
74,
80,
-62,
93,
-30,
-94,
-63,
-36,
-118,
10,
-85,
-55,
84,
-46,
-68,
41,
112,
111,
33,
-65,
-85,
42,
31,
-61,
41,
44,
107,
45,
32,
-23,
-70,
13,
127,
2,
-78,
102,
-65,
35,
-54,
44,
-104,
57,
0,
-24,
115,
-76,
-122,
92,
13,
-103,
12,
114,
66,
1,
109,
-39,
32,
13,
110,
126,
-115,
-121,
-104,
73,
3,
14,
-97,
93,
50,
80,
23,
118,
-11,
-41,
-35,
108,
65,
-121,
-108,
-77,
-17,
60,
-98,
-91,
-31,
-89,
18,
117,
-51,
106,
93,
101,
120,
-37,
-122,
-34
] |
English, C. J.
This was a code action, in the nature of trover at common law, brought in the Circuit Court of Mississippi county, b}r W. J. Bowen, as trustee for the use of Driver & Jones, against Joseph Eassett, for the value of five bales of cotton.
- Plaintiff claimed the cotton by virtue of a deed of trust, executed to him, as trustee, on the twenty-first of May, 1875, by Esau Trust, for the use of Driver & Jones.
The deed was upon the then growing cotton crop of Trust, and was executed by him as security for $150 advanced by Driver & Jones, to enable him to make his crop.
Defendant claimed the five bales of cotton in controversy, under a written contract made between him and Trust, Dec. 1, 1874, by which he leased to Trust fifty acres of land, at $10 per acre, for the year 1875, and agreed to furnish and. sell to him feed, team and tools, so far as necessary, for cultivating the land ; and Trust bound himself to turn over to defendant the cotton crop as fast as gathered and prepared for market, until all his indebtedness was paid.
The‘contract was not acknowledged or recorded.
The evidence introduced on the trial conduced to prove that defendant got into his possession the whole' of the cotton crop of Trust, and sufficient to pay the rent, for which he had a landlord’s lien, without the five bales of cotton in controversy, but not enough, including them, to pay the rent and other indebtedness of Trust.
Plaintiff claimed that after the rent was paid he was entitled to the remaining five bales of cotton, under the trust deed, and his theory was, that the trust deed was filed for record in the recorder’s office on the twenty-first of May, 1875, the day it was executed and acknowledged. The contention of defendant was that the deed of trust was not filed for record until the thirtieth of November, 1875, and that' before then he had obtained possession of the five bales of cotton on account of Trust’s indebtedness to him.
The whole case really turned • upon this question, and though others were raised at the trial, none other has been argued here.
The court instructed, the jury that: “The filing of the plaintiff’s deed of trust in the recorder’s office, with instruc-. stions to the recorder not to enter the same of record, is not a filing of the same for record, as contemplated by the Statute.”
Instructions moved for plaintiff, and refused by the court, assumed that the deed of trust was filed for record when. it was deposited with the' recorder, twenty-first of May, 1875.
The verdict and judgment were for defendant; a new trial was refused plaintiff, and he appealed.
In the transcript before us the deed of trust is copied, then the certificate of acknowledgment, then two certificates of registration, as follows :
FIRST CERTIFICATE.
“STATE OF ARKANSAS, ) County of Mississippi. 3
“I, J. K. P. Hale, Clerk of the Circuit Court, and ex-officio Recorder for the county of Mississippi, do hereby certify that the within and foregoing, instrument of writing was filed in my office on the twenty-first day of May, A. D., 1875, and is now duly recorded in Deed Record 6, pages 292 and 293,
“In testimony whereof, I have hereto set my hand [l. s.] and affixed the seal of said court, on this, the twenty-first of May, 1875.
“J. K. P. Hale, Cleric”
“STATE OF ARKANSAS, ) County of Mississippi. 3
“I, J. K. P. Hale, Clerk of the Circuit Court, and ex-officio Recorder for the county aforesaid, do hereby certify that the annexed and foregoing instrument of writing was filed for record in my office on the thirtieth day of November, 1875, and the same now duly recorded in Record Book, vol. 6, pages 292 and 293,
“In testimony whereof, I have hereto set my hand [l.s.] and affixed the seal of said court, on this thirtieth day of November, 1875.
“J. K. P. Hale, Clerk.”'
The only evidence introduced on the trial to explain these two certificates, set out in the bill of exceptions, was as follows:
“ J. K. P. Hale introduced (by defendant) and sworn, testified : When Mr. Driver brought me the deed of trust .(deed of trust shown him, introduced by plaintiff, executed between Trust and plaintiff), in May, 1875, he told me he ■did not want it recorded, but merely to remain in the office, as he did not wish to pay the fees. Accordingly, I filled up the certificate on the outside of said deed, erasing the words, £for record.’ When the deed was afterwards recorded in November, I completed the certificate by stating the book, page, etc. On the thirtieth of November, 1875, Driver came to me and instructed me to put the deed on record, which I did, and made the certificate appended to the inside of said deed.”
This testimony was given without objection.
By Statute, every mortgage on real or personal property, properly acknowledged, is a lien on the property mortgaged, “from the time the same is filed for record in the recorder’s office, and not before.” Gantt's Digest, Sec. 4288. And the Statute applies to deeds of trust. Hannah v. Carrington, 18 Ark., 86.
And by Sec. 860, Gantt’s Digest, a properly acknowledged deed, etc., is made constructive notice to all persons, ■“ from the time the same is filed for record in the recorder’s office,” etc., and it is made the duty of the recorder “to ■endorse on every such deed, bond, or instrument, the precise time when the same is filed for record in his office.”
The first certificate of the recorder made upon the deed •of trust in question, and above copied, was not in compli■ance with the Statute, for a reason which he was permitted, without objection, to state.
The second certificate was in conformity with the Statute.
The recorder should have made no indorsement upon the ■deed when it was left with him by Diiver, one of the beneficiaries, with instructions not to record it, because he did not wish to pay the fees. It was not then filed for record within the meaning of the Statute.
This case is unlike Oates v. Walls, 28 Ark., 244, relied on by counsel for appellant. In that case the mortgagee filed the deed for record, and paid the fees, and it was properly endorsed, but afterwards withdrawn by mistake before it was recorded.
The court did not err in giving the instruction above •copied, nor in refusing such of appellant’s instructions as were based upon the theory that the deed was filed for record on the twenty-first of May, 1875.
As to other questions, the charge of the court to the jury is not complained of here, and the evidence warranted the ■verdict.
Affirmed. | [
-16,
78,
-4,
13,
10,
-32,
42,
-102,
-38,
32,
-26,
83,
-7,
102,
29,
33,
-25,
93,
-43,
105,
-58,
-94,
33,
103,
-78,
-77,
-21,
-59,
-75,
-63,
-10,
-34,
76,
56,
-62,
29,
-62,
-64,
-51,
24,
-50,
-115,
-81,
100,
-99,
64,
52,
45,
20,
73,
65,
-98,
-77,
35,
25,
67,
105,
46,
75,
56,
112,
-24,
-100,
-57,
-17,
22,
-80,
100,
-104,
3,
-22,
110,
-104,
53,
12,
-20,
91,
-90,
-122,
-44,
41,
-119,
9,
38,
38,
48,
5,
111,
88,
-99,
62,
-26,
-115,
-122,
-48,
104,
67,
10,
-66,
-100,
118,
16,
70,
116,
-23,
-99,
24,
108,
3,
-49,
-108,
-125,
45,
60,
-98,
11,
-61,
42,
-80,
101,
-49,
-90,
76,
101,
53,
27,
-105,
-90
] |
English, C. J.
It seems that at the April term, 1878,, of the County Court of Chicot county, there was found to-be due to the county, from R. M. Fry, as collector, $1390»
On a subsequent day of the same term, he applied to the Court to allow him a credit for $510.50, paid by him out of the county revenue, as follows :
To Dan W. Jones, Esq’r., for legal services in defending against objections made to his bond as collector, in the Chicot Circuit Court, at its
January term, 1878....................... $200 001
To Mark Valentine, Esq’r , for services in the same matter............................. 200 OO1
To costs paid in mandamus suit................ 10 50-
To Mark Valentine, for legal services in defending in the suit of D. H. Reynolds against said Fry as collector, mandamus from the Chicot Circuit Court..................... 100 00'
$510 50*
The County Court refused to allow the credit claimed, and Fry appealed to the Circuit Court, whei-e the case was tried anew, on tbe following agreed facts, as set out in a bill of exceptions :—
“Fry was appointed, in January, 1877, collector of taxes for Chicot county. At the July term, 1877, of the Chicot Circuit Court, a suit by mandamus was brought against him by D. H. Eeynolds ; and Mark Valentine, Esq., defended said suit for said collector in said court, and afterwards in the Supreme Court; and the collector paid him $100.00 for his services therein, and that the compensation was reasonable. That at the January term, 1878, of the Circuit Court of Chicot county, J. E. Joslyn filed objections to the approval of the bond of said collector by said court; and Dan. W. Jones and Mark Valentine, Esq’rs., as attoraeys for said Fry, defended against said objections, and he paid each of them $200.00 for his services, and the compensation was reasonable. That said objections were overruled, and the bond of Fry approved by the court. That he paid the clerk of the court $10.50 costs in the mandamus suit.”
Upon these facts the court refused to allow the credit for the $510.50, as claimed by Fry, and overruled a motion for a new trial, and Fry appealed. No declarations of law were asked, and none were made by the court.
I. The bill of exceptions fails to show that the county had any interest in the mandamus suit, or was under any obligations to pay appellant’s counsel’s fee, or costs in the case.
We have been referred by appellant’s counsel here to Fry v. Reynolds, 33 Ark., 451, for the facts in the mandamus case. We may look at that case for law, but not for the facts of the case now before us. They should have been shown by the bill of exceptions.
II. The Statute makes no provisions for the county to pay the collector’s attorney’s fees wheie objections are made to his bond. When the court finds that the objec tions to the bond are made through malice, or without probable cause, the costs, and an attorney’s fee, not exceeding $50, may be taxed against the objectors. If the bond be held insufficient, the objectors are entitled to an attorney’s fee to be taxed against the county not exceeding $50. Act of 1st March, 1875, sec. 5 ; Act of 1875, p. 192.
Appellant did not bring his case within the Statute.
It was unfortunate that appellant was put to expense about his bond, which turned out to be good, but there is no Statute under which he is entitled to indemnity from the county, on the. facts stated in the bill of exceptions.
Affirmed. | [
-78,
72,
-44,
-104,
-22,
-96,
50,
44,
-56,
33,
-73,
115,
-79,
66,
16,
35,
-14,
109,
92,
122,
-60,
-73,
50,
-89,
-78,
-77,
-3,
-33,
-79,
77,
-20,
-43,
8,
57,
-118,
29,
103,
96,
-59,
114,
-58,
8,
-87,
-55,
81,
0,
48,
41,
50,
11,
117,
55,
-73,
46,
53,
-29,
77,
42,
113,
11,
-112,
-15,
-70,
13,
125,
7,
-111,
103,
-111,
5,
-56,
58,
-112,
25,
0,
-8,
59,
-90,
-122,
84,
13,
-103,
8,
120,
38,
97,
21,
-17,
-80,
-84,
46,
-70,
-103,
-89,
-42,
32,
11,
77,
-66,
-99,
116,
-112,
-121,
116,
96,
5,
29,
108,
4,
-50,
-44,
2,
-113,
46,
-100,
66,
-9,
-114,
52,
81,
-51,
-22,
125,
-59,
113,
27,
-98,
2
] |
Melvin Mayfield, Judge.
David Clark appeals the amount of child support awarded in a paternity action brought by the appellee. He contends the chancellor abused his discretion in setting the amount of support without considering the support appellant provides for his own dependent children. Because we find the chancellor erred in holding that he could not consider appellant’s other dependents in setting child support, we reverse and remand.
Appellant is married to Betsy Clark, and they are the parents of two minor children, who reside with them. In March 1990, appellee, Barbara Tabor, filed a complaint in the Washington County Chancery Court, alleging that the appellant is the biological father of her son, Alex, born out of wedlock on December 15, 1989. In her complaint, appellee sought child support for her son from appellant. Initially, appellant denied paternity of Alex, but in his amended answer, he admitted he was Alex’s biological father and sought custody of him.
A stipulated settlement was read into the record by the parties on February 8,1991. Among other things contained in the agreement, the parties agreed that appellant would pay $80.00 per week for the care, maintenance, and support of Alex. Although the record contains no explanation of why a hearing would be necessary after the settlement had been made, a hearing was held on May 23,1991, for the determination of the questions of paternity, custody, visitation, and child support. At the conclusion of this hearing, the chancellor held that appellant was the father of Alex and awarded appellee child support of $77.00 per week. In setting this amount, the chancellor stated:
This amount is based on the weekly family support chart considering the weekly take home pay amount as set forth on the Affidavit of Financial Means which has been filed herein and set forth as Plaintiffs Exhibit 1, as that amount is applied to the weekly family support chart effective July 1, 1987, and upon consideration of the fact that mother is employed at this time, the Court is taking the chart amount herein based on weekly take home pay of $470 per week and using the amount shown in the dependents’ column of one.
[The $77.00 per week amount] is based upon the amount shown in the Affidavit of Financial Means. I’m basing it on the weekly take home pay of four hundred seventy-eight per month, and that would then in the weekly family support chart which was made effective July 1, 1987, in the weekly take home column of $470, the amount for one dependent is $77. I note the previous argument made to the Court concerning setting that without consideration of other dependents herein, and I find that I have to consider this just as a one child. That’s the way I’m treating it, as one dependent, and it’s set strictly in accordance with the amount set forth on the chart.
Appellant argues the chancellor erred in not taking into consideration his two children who live with him and the legal obligation he has to provide support for those children.
In its per curiam adopting the Family Support Chart, the Supreme Court stated that weekly take-home pay, as it relates to the Family Support Chart, refers to the definition of income in the federal income tax laws, less proper deductions for federal and state income tax; social security (FICA) or railroad retirement equivalent; medical insurance; and presently paid support for other dependents by Court order. In Re: Guidelines for Child Support Enforcement, 301 Ark. 627, 629-30, 784 S.W.2d 589, 591 (1990).
Here, the chancellor set support by taking appellant’s weekly take-home pay and referring to the proper table in the Family Support Chart. He stated that this calculation was made without considering appellant’s other children and his obligation to support them. The appellee argues our holding in Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991), prohibited the chancellor from considering appellant’s other dependent children.
In Waldon, the chancellor set the appellee’s child support obligation for one child by applying appellee’s income to the column on the chart based on three dependents. The chancellor justified this application by noting that appellee had two other children by his current marriage. The appellant contended that it was error for the chancellor to have used the column for three dependents in setting support. We agreed, stating:
We agree with appellant that the chancellor should not have applied the chart based on three dependents. Although this may be a proper consideration bearing perhaps on a payor spouse’s ability to pay, the chart should be applied to the child that is before the court. The result of applying the chart as the chancellor did here is that the amount of support for the one child was diluted, as the chart is structured so that the amount of support per child decreases in proportion to the number of added dependents.
While there is a rebuttable presumption that the amount of support according to the chart is correct, the chancellor in his discretion is not entirely precluded from adjusting the amount as deemed warranted under the facts of a particular case. As explained by the supreme court, the presumption may be overcome if the chancellor determines, upon consideration of all the relevant factors, that the chart amount is unjust or inappropriate. See Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). The relevant factors include food, shelter and utilities, clothing, medical and education expenses, accustomed standard of living, insurance and transportation expenses. Id. See also In re: Guidelines for Child Support Enforcement, supra. However, when deviating from the chart, the chancellor must explain his or her reasoning by the entry of a written finding or by making a specific finding on the record. See Scroggins v. Scroggins, supra; Ark. Code Ann. § 9-12-312(2) (Repl. 1991).
Waldon, 34 Ark. App. at 123, 806 S.W.2d at 390.
Our holding in Waldon v. Waldon, however, does not prohibit a chancellor from considering other matters in addition to the child support chart that have a strong bearing in determining the amount of support. See Black v. Black, 306 Ark. 209, 214, 812 S.W.2d 480, 482 (1991). A payor spouse’s other children, even if not supported under a court order, may be considered in determining the financial ability to support another child. Stewart v. Winfrey, 308 Ark. 277, 283, 824 S.W.2d 373, 377 (1992). If the chancellor considers such factors, the chancellor must enter a written finding or a specific finding on the record as to why the amount so calculated, after consideration of all relevant factors, is inappropriate. See Scroggins v. Scroggins, 302 Ark. 362, 365, 790 S.W.2d 157, 159 (1990).
The supreme court in Stewart v. Winfrey, supra, has recently discussed the chancellor’s ability to consider a payor spouse’s other dependents in setting support:
We have recently held that the child support chart and the criteria used for deviating from it are not mandatory. There may be other matters in addition to the support chart that have a strong bearing upon determining the amount of support. The factors listed in the per curiam order are examples of these other matters. Black v. Black, 306 Ark. 209, 812 S.W.2d 387 (1991). The financial ability to pay child support could be one factor in determining whether a deviation from the chart is appropriate. Reference to the chart is mandatory, but applying the specific chart amounts is not mandatory if it would be unjust or inequitable, and if written findings are made to that effect.
The Court of Appeals has also recognized that a payor spouse’s other children, even if not supported under a court order, may be considered in determining the financial ability to support another child. Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991).
The Chancellor’s decision in this case that other children may not be considered under the support chart could have been error if taken to mean the Chancellor could not look beyond the chart to determine the appropriate support amount. [Appellant], however, does not argue this aspect of the issue in his brief and only contends the chart violates the equal protection clause. After figuring the child support amount under the chart, a chancellor has the discretion to adjust the amount if equitable and if written findings are made to that effect. In making the decision, the chancellor can consider a parent’s ability to pay. This would necessarily include a consideration of other children the parent is legally obligated to support. The family support chart thus poses no equal protection clause violation.
308 Ark. at 283-84, 824 S.W.2d at 377. See also our most recent decision on this point in Howard v. Wisemon, 38 Ark. App. 27, 826 S.W.2d 314 (1992).
Appellant also argues that this state’s statutory system for allocating child support violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. As can be noted from the proceeding quotation, the supreme court has held that the Family Support Chart does not violate the equal protection clause. Stewart v. Winfrey, 308 Ark. at 283, 824 S.W.2d at 377. Furthermore, appellant is raising this argument for the first time on appeal, and issues raised for the first time on appeal will not be considered by the appellate court. See Cox v. Bishop, 28 Ark. App. 210, 217, 772 S.W.2d 358, 361 (1989). Even arguments of constitutional dimensions must be argued below if they are to be preserved on appeal. Chapin v. Stuckey, 286 Ark. 359, 368, 692 S.W.2d 609, 615 (1985).
We hold that the chancellor erroneously concluded he was prohibited from considering appellant’s other dependents in setting child support. Because it is discretionary with the chancellor whether consideration of such a factor would warrant an adjustment in the amount of support ordered, we cannot conclude that the chancellor’s refusal to consider such a factor was harmless error. Therefore, we remand the case for the chancellor’s reconsideration in light of this opinion.
Reversed and remanded.
Cooper and Danielson, JJ., agree. | [
-16,
108,
-83,
108,
-102,
32,
10,
0,
79,
-29,
87,
83,
-21,
102,
20,
105,
-94,
105,
97,
106,
-47,
-77,
7,
65,
-12,
-13,
-79,
-42,
-75,
95,
-27,
-41,
77,
50,
-126,
-43,
98,
-54,
-59,
80,
-122,
6,
-85,
-19,
-48,
70,
52,
41,
82,
13,
53,
-114,
-77,
46,
-76,
79,
40,
12,
29,
51,
-128,
-16,
-38,
4,
95,
16,
-79,
5,
-70,
46,
88,
43,
-104,
-71,
-94,
-23,
58,
-90,
-126,
116,
91,
-69,
9,
32,
98,
16,
-59,
-12,
-72,
-120,
46,
-19,
28,
-90,
-109,
112,
72,
15,
-90,
-108,
116,
84,
14,
-4,
88,
13,
28,
100,
2,
-113,
-44,
-109,
-115,
-56,
-116,
2,
-25,
-125,
17,
97,
-53,
-24,
93,
71,
58,
-7,
-98,
-78
] |
Elizabeth W. Danielson, Judge.
Appellant Arkansas Department of Human Services (DHS) appeals from a probate court order granting a petition for adoption filed by appellees, Jim and Lana Couch. The court denied the petition of DHS seeking termination of parental rights and appointment of DHS as custodian with power to consent to adoption. Appellant’s position was that Jennifer, the child adopted by appellees, and her sister Misty, who has cerebral palsy, should be adopted together as a sibling group. Appellees sought to adopt only Jennifer. After careful review of the record and of the arguments raised by appellant, we affirm the lower court’s ruling that it serves the best interests of both children for them to be adopted separately.
Misty was born on May 26, 1988, and removed from her mother’s care on February 10,1989. At that time she was placed with a foster parent, Jean Goff. Misty has cerebral palsy and goes to Easter Seals for therapy four days a week. Jennifer was born on June 30, 1989. She was removed from her mother’s care on August 30, 1989, and placed in foster care with Ms. Goff.
On March 8,1991, appellant filed a petition for termination of parental rights regarding Jennifer and sought custody with the power to consent to adoption. The same had been filed regarding Misty on February 21, 1991. Sometime during this same time frame, appellees became aware of Jennifer and the possibility of adopting her. Appellees tried to arrange the adoption through DHS, but decided to pursue a private adoption when they met with resistance from DHS. They obtained consent for adoption of Jennifer from her biological mother and were allowed by the court to intervene in the termination of parental rights action filed by appellant. After several hearings on the matter, the court granted appellees’ petition to adopt Jennifer.
Appellant’s first contention is that the trial court’s ruling was clearly against the preponderance of the evidence. Appellant argues that the trial court abused its discretion when it allowed Jennifer to be adopted separate and apart from her sister. Although we review probate proceedings de novo on the record, it is well settled that the decision of a probate judge will not be disturbed unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the trial court to judge the credibility of the witnesses. In Re Adoption of Perkins/Pollnow, 300 Ark. 390, 779. S.W.2d 531 (1989). In cases involving child custody, a heavier burden is cast upon the court to utilize to the fullest extent all its powers of perception in evaluating the witnesses, their testimony, and the child’s best interests. The appellate court has no such opportunity, and it has often been said that we know of no case in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as when the interests of minor children are involved. See In Re Adoption of Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989).
Appellant states in its brief that DHS’s operating policy and Arkansas case law indicate that a court should place siblings together for adoption purposes unless sufficient conditions warrant otherwise. In any proceeding involving the welfare of young children, the court is in no way bound by DHS policy; rather, the paramount consideration is the best interests of the children. See id.
Arkansas case law does recognize the principle that unless exceptional circumstances exist, young children should not be separated from each other by dividing their custody. See, e.g., Johnstonv. Johnston, 225 Ark. 453, 283 S.W.2d 151 (1955), and Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985). Our courts, however, have recognized that the existence of exceptional circumstances does sometimes warrant the separation of siblings. In Fries v. Phillips, 189 Ark. 712, 74 S.W.2d 961 (1934), the supreme court affirmed an order that allowed a brother and sister to be adopted separately. While recognizing the “forceful” argument that siblings should not be separated, the court noted that the two children had been separated for some time and did not know each other. 189 Ark. at 716. In Riddle v. Riddle, 28 Ark. App. 344, 775 S.W.2d 513 (1989), this court affirmed the chancellor’s decision to separate the custody of two half-brothers. In response to appellant’s arguments based on the principle set forth in Ketron, this court stated that it did not agree that the law of child custody must be applied in such a rigid and mechanical fashion and that the theory advanced by appellant required no consideration of the child’s best interests. 28 Ark. App. at 349. A petition for adoption may only be granted upon a finding that the adoption is in the best interest of the individual to be adopted. Ark. Code Ann. § 9-9-214(c) (Supp. 1991).
In light of our case law, Ark. Code Ann. § 9-9-214(c), and our well-settled rule that the primary consideration in cases involving the welfare of a child is the best interest of that child, we conclude that while keeping siblings together is a commendable goal and an important consideration as a general rule, it is but one factor that must be taken into account when determining the best interest of the child.
Jean Goff, the foster parent of Misty and Jennifer, testified that she thought it would be in the best interests of the children to be placed separately. Ms. Goff described the care necessary for Misty, testifying that there is nothing Misty can do by herself; she has to be fed, dressed, and carried around. She said that the two children have to be watched constantly when they are together because of the danger that Jennifer will put something into Misty’s mouth and that Misty is easily frightened around other children. Ms. Goff testified that Jennifer is jealous of the time spent with Misty. It is Ms. Goffs opinion that the two girls do not recognize each other as sisters and that there is no bonding between them.
Appellant offered no evidence other than its general policy that it would not be in Jennifer’s and Misty’s best interests to be placed separately. Although it is DHS’s policy to keep siblings together, there was testimony that there are exceptions that would warrant separation. These exceptions include situations where one child would be in danger from the other or where one would be neglected because of the other. The record indicates that no official recommendation had even been made as to whether these two children should be placed separately or together. Although DHS employees testified regarding two potential adoptive families for both girls, neither of these two fámilies had been officially approved, nor were they present for the court to examine.
Appellant’s argument that the court was indulging in sheer speculation when it voiced concern that Jennifer was being used as an inducement for Misty’s adoption is discredited by the very testimony elicited by appellant. Lillie Owens, a witness for and employee of appellant, replied in the affirmative when asked if she thought Misty would be hard to adopt if she was being adopted by herself. Ms. Owens also stated, “A special needs child is more difficult for placement than a healthy child.” Additionally, Ms. Owens testified that when searching for adoptive families, Misty and Jennifer had been presented only as a sibling group; there was no attempt to place them separately. This evidence supports the court’s concern that Jennifer was being used as an inducement to get someone to adopt Misty and that Misty would be better off with someone who was willing to accept her alone in light of her special needs.
Upon review of the record, we are convinced that the court made its decision based upon the best interests of both Misty and Jennifer. We cannot say the court’s decision to grant appellee’s petition for adoption was clearly against the preponderance of the evidence.
Appellant’s second argument is that the trial court abused its discretion in denying appellant’s motion for a new trial. Appellant filed its motion for new trial according to Ark. R. Civ. P. 59, averring that it suffered surprise by the court’s reasoning that materially affected its substantial rights at trial. Appellant contends that the court based its decision exclusively on the possibility that Jennifer was being used as an inducement for Misty’s adoption, and that this was sheer speculation.
Though this was a concern voiced by the court, there was other evidence to support its decision, particularly the testimony of Jean Goff. And as we stated earlier, this concern was not based on mere speculation, but was supported by the very testimony offered by appellant. We agree with appellee that logical inferences drawn from the evidence introduced by appellant can not be used as the basis for an allegation of surprise. The motion for new trial was properly denied.
Appellant’s contention that the court erred in considering the recommendation of Jennifer’s and Misty’s guardian ad litem is without merit. Appellant asserts that Paul Lancaster’s representation was inadequate but nothing in the record supports this allegation. Instead, the record demonstrates Mr. Lancaster’s participation in and contribution to the proceedings and his concern for the welfare of both children.
Appellant’s fourth contention is that the biological mother’s consent to adoption was legally insufficient based on her mental incapacity. The record shows that the court was con cerned about this issue. The mother, Vivian, was appointed an attorney who spoke with her at length about the consent and the ramifications of adoption. Joe Hardin, Vivian’s attorney, stated at trial that based on his discussions with Vivian, his discussions with her counselor, and reports he had read, he felt Vivian was not incapable of understanding what was going on; he felt she was legally capable of giving consent. He said he had spoken with her again the day of the hearing and she restated that she did wish to consent to. the adoption. The court also questioned Vivian regarding her understanding of the proceedings and was satisfied that Vivian was legally capable of giving consent for Jennifer to be adopted. We cannot say this finding is clearly against a preponderance of the evidence.
Appellant’s final point on appeal is that appellee’s petition for adoption was fatally defective in that it failed to include all the information required by Ark. Code Ann. § 9-9-210. In Taylor v. Collins, 172 Ark. 541, 289 S.W. 466 (1927), the supreme court upheld the validity of a petition for adoption where there was substantial compliance with the statutory requirements. Appellant relies on Ozment v. Mann, 235 Ark. 901, 363 S.W.2d 129 (1962), which held an adoption order fatally defective because it failed to recite essential jurisdictional facts. Here, however, jurisdiction and venue of the case were established by appellant’s own petition to terminate parental rights, filed before appellees filed their petition as intervenors. Other statutory information required was introduced by the pleadings and testimony of the parties. We find there was substantial compliance with the statutory requirements and the petition was not fatally defective.
Affirmed.
Cracraft, C.J., and Rogers, J., agree. | [
81,
-20,
-27,
60,
26,
97,
88,
48,
-62,
-93,
119,
81,
107,
-36,
21,
-23,
111,
43,
-47,
121,
-63,
-73,
71,
64,
114,
-14,
-79,
-41,
-79,
109,
116,
-42,
72,
97,
-54,
-31,
70,
-64,
-41,
-112,
-118,
3,
-85,
45,
-47,
-62,
32,
115,
18,
14,
21,
-66,
-93,
44,
61,
-61,
104,
78,
123,
56,
-120,
-72,
-113,
23,
-33,
2,
-79,
36,
-70,
-28,
106,
47,
-122,
56,
0,
-24,
81,
-90,
-110,
116,
75,
57,
9,
96,
108,
33,
44,
-9,
-76,
8,
126,
-97,
-67,
-90,
-102,
89,
9,
5,
-97,
-75,
-52,
20,
15,
126,
-49,
-52,
30,
-20,
-116,
-114,
94,
-79,
92,
48,
28,
19,
-29,
65,
50,
117,
-46,
-14,
84,
71,
55,
-111,
-82,
-38
] |
Melvin Mayfield, Judge.
Bank of Cave City appeals from a summary judgment of the Cleburne County Circuit Court dismissing its complaint which sought damages for an alleged omission in an abstract of real property on which appellant later took a mortgage. Appellant urges this court to hold that, as a matter of law, complaints for money damages, not yet reduced to judgment, must be included in abstracts of title. We decline to so hold and affirm.
On April 30, 1987, appellant requested that appellees update an abstract on real property. Appellees did so and returned the update to appellant’s attorney. On October 22,1987, appellant’s attorney requested that appellee update the same abstract again. On October 26, 1987, appellees certified the updated abstract. This Continuation Certificate of Abstract No. 1929 provided as follows:
WE HEREBY CERTIFY that we have carefully examined the records in the County and Circuit Clerks and Recorder of Cleburne County, from the 18th day of May, 1987, at 10:00 o’clock A.M., and the foregoing 7 sheets numbered 62 to 68, inclusive of this certificate, contain, as we believe, a correct abstract of all the conveyances or other instruments of record affecting the title to the land or lot described in the caption hereof.
A complaint filed by Farm Bureau Mutual Insurance Company of Arkansas, Inc., and Southern Farm Bureau Casualty Insurance Company against the owner of the property on December 10, 1986, did not appear in the abstract when it was updated by appellee on October 26, 1987. This complaint was reduced to judgment on November 25, 1987, and was recorded before appellant took a mortgage on the property dated November 30, 1987, and filed December 2, 1987.
In order for its mortgage to be entitled to a first lien status, appellant paid off the judgment. Then, alleging that it had been damaged in the sum of $6,000.00 and that appellees’ failure to include the complaint in the abstract constituted negligence, appellant sued appellees on September 18, 1990. Appellees denied that they were required to include the complaint in the abstract update of October 26, 1987, and affirmatively pled that appellant was guilty of contributory negligence in failing to search or request a search of the real estate records from the date of the last continuation of the abstract to the date of the closing of the loan.
Appellees and appellant agreed upon the facts and both moved for summary judgment. In making its decision, the circuit court had before it the abstract, appellees’ admissions, and the affidavits of three abstracters. One abstracter stated that it was the policy of her abstract company to include all complaints requesting monetary judgments against title holders of real property in the abstract. On the other hand, two other abstracters stated in their affidavits that it was not their practice to do so unless a lis pendens had been filed in conjunction with the complaint.
The circuit judge, in dismissing appellant’s complaint, found as a matter of law that the complaint was not a matter of record required to be included in the abstract. From this judgment, comes this appeal. ■
Appellant acknowledges that abstracters are divided as to the necessity for including complaints for money damages in abstracts. Nevertheless, citing Stephenson v. Cone, 24 S.D. 460, 124 N.W. 439 (1910), appellant argues that an abstracter must furnish to an intended purchaser or mortgagee, by means of the abstract, everything pertaining to the names and to the property in question that might reasonably affect the title. In Stephenson v. Cone, supra, the continuation of an abstract had omitted two judgments against the property- owner. The judgments were rendered against an Ed. J. Borstad and the abstract was made on lots deeded by Edward J. Borstad. That case, therefore, does not hold that a complaint not reduced to judgment must be included in an abstract. The court stated:
It has been the universal custom and practice in this state to sue and maintain actions against defendants by the initial letters of their Christian names, and to so enter and docket the judgment, and which custom and practice the defendant Cone was bound to know as a part of his business as abstractor. To now hold that all judgments are invalid as notice, excepting only where the full Christian name of defendant is indexed or docketed, would be to practically render void and ineffectual a majority of the judgments of this state. While it is not generally a part of the duty of an abstractor to go outside the record to search for facts affecting the title to real estate, still he must furnish to an intended purchaser, by means of the abstract, everything pertaining to the names and to the property in question, so far as appears from the record, that reasonably might affect such title, and thus put the purchaser on inquiry, in order that such purchaser may himself make the proper investigations as to the outside facts. In searching the records for judgments against Edward J. Borstad, the defendant Cone was charged with the knowledge and bound to know the different forms in which the name Edward J. Borstad might be used in entering judgment against him, and to make his search accordingly.
124 N.W. at 440. Clearly, this case does not support appellant’s argument.
The term “abstract of title” is defined in Ark. Code Ann. § 17-11-102(1) (1987) as “a compilation in orderly arrangement of the materials and facts of record affecting the title to a specific piece of land, issued under a certificate certifying to the matters therein contained.” Ini C.J.S. Abstracts of Title % 10 (1985), it is stated: “Ordinarily, an abstractor has no duty in his investigation, to go outside the records, and, in the absence of special agreement, it is not his duty to investigate and determine whether there is any lien or incumbrance on the property which is not shown upon the records.” See also George W. Thompson, A Practical Treatise on Abstracts and Titles § 16 (2ded. 1930). It is stated in 1 C.J.S. Abstracts of Title § 5 (1985) that an abstract should contain a statement of all conveyances, wills, “other instruments or matters of record relied on as evidence of title, and of all instruments, judicial proceedings, and other records which in any way affect the title. . . .”
The types of instruments required to be recorded in Arkansas are set forth in Ark. Code Ann. § 14-15-402(a) (1987):
It shall be the duty of each recorder to record, in the books provided for his office, all deeds, mortgages, conveyances, deeds of trust, bonds, covenants, defeasances, or other instruments of writing of or concerning any lands and tenements or goods and chattels, which shall be proved or acknowledged according to law, that are authorized to be recorded in his office.
Under Arkansas law, a complaint does not constitute a lien on land until it is reduced to judgment. Arkansas Code Annotated § 16-65-117 (Supp. 1991) states in part:
(a)(1)(A) A judgment in the Supreme Court or chancery or circuit courts or municipal courts of this state and in the United States district courts within this state shall be a lien on the real estate owned by the defendant in the county in which the judgment was rendered from the date of its rendition only if the clerk of the court which rendered the judgment maintains a permanent office within the county, at which office permanent records of the judgments of the court are continuously kept and maintained and the judgment has been filed with the circuit clerk.
(B) As to any person who does not have actual notice of the rendition of the judgment, the judgment shall be a lien from the date the judgment is recorded and indexed by the court clerk in a manner that provides reasonable notice to the public.
(2) (A) If a judgment is rendered by one (1) of the courts in a county where the clerk of the court does not maintain a permanent office at which permanent records of the judgments of the court are continuously kept and maintained, the judgment shall not be a lien on the land of the defendant in that county until a certified copy of the judgment is filed in the office of the clerk of the circuit court of that county.
(B) As to any person who does not have actual notice of the rendition of the judgment, the judgment shall be a lien from the date the judgment is recorded and indexed by the court clerk in a manner that provides reasonable notice to the public.
Here, only the filing of a lis pendens against the property could have rendered the complaint a matter of record before it was reduced to judgment. Because the complaint, however, was merely for a money judgment and did not directly affect the title to the real estate, a lis pendens could not be filed. iSeeArk. Code Ann. § 16-59-101 (1987). This section applies only to actions affecting titles and liens on real estate or personal property and does not apply to actions seeking a money judgment. Health Betterment Found. v. Thomas, 225 Ark. 529, 534, 283 S.W.2d 863, 866 (1955); Tolley v. Wilson, 212 Ark. 163, 165, 205 S.W.2d 177, 178 (1947).
The appellant did not specifically request that appellees research anything more than instruments of record or conveyances affecting the title to the property. Appellant could have requested that such a search be made but did not do so. Since the complaint was not a matter of record under Arkansas law, it was not required to be included in the abstract. Further, we note that the complaint was not reduced to judgment until November 25, 1987, almost a month after appellees certified the continuation of the abstract, and the judgment was rendered a few days before appellant took the mortgage on the property. If appellant had requested an up-to-date continuation of the abstract before taking the mortgage, it would have been aware of the judgment. We cannot say that the circuit judge erred in holding that the complaint was not a matter of record affecting title to the property and that it was not required to be included in the continuation of the abstract.
Affirmed.
Cooper and Danielson, JJ., agree. | [
-76,
108,
-27,
-116,
-24,
-32,
58,
-116,
72,
-95,
37,
83,
-17,
-54,
28,
103,
-30,
89,
101,
114,
-43,
-74,
59,
96,
-62,
-77,
115,
84,
-79,
91,
-26,
-12,
93,
32,
-54,
-41,
67,
-120,
-121,
94,
78,
15,
-103,
77,
-55,
65,
52,
107,
4,
13,
21,
-75,
-14,
45,
-71,
67,
105,
44,
-39,
41,
-48,
-72,
-118,
13,
127,
5,
-79,
116,
-104,
3,
90,
-120,
-112,
61,
0,
-24,
50,
38,
-122,
116,
15,
25,
8,
46,
98,
32,
5,
-49,
-88,
-120,
7,
-66,
-113,
-90,
-46,
41,
43,
43,
-74,
-99,
116,
66,
71,
-2,
110,
68,
89,
44,
7,
-50,
-108,
-77,
13,
-16,
-103,
11,
-2,
67,
52,
113,
-51,
-28,
92,
-50,
21,
-101,
-122,
-15
] |
George K. Cracraft, Chief Judge.
Robert Duncan appeals from his conviction of the crime of theft by receiving property valued in excess of $2,500.00, for which he was fined $10,000.00. Appellant contends that the trial court erred in denying his motion for a directed verdict; in allowing the introduction of expert testimony concerning the mathematical probabilities of two keys fitting the same car; and in permitting Ricky Bauer to testify as an expert. We find no error and affirm.
A motion for directed verdict is a challenge to the sufficiency of the evidence. In addressing such challenges this court will affirm the trial court’s denial if there is substantial evidence to support the jury’s verdict. Substantial evidence is evidence of such sufficient force that it will compel a conclusion one way or another, inducing the mind to pass beyond suspicion or conjecture. In our review of such cases, we view the evidence in the light most favorable to the appellee, considering only that tending to support the guilty verdict. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990).
Our law makes no distinction between direct evidence and circumstantial evidence. The fact that evidence is circumstantial does not render it insubstantial. Small v. State, 5 Ark. App. 87, 632 S.W.2d 448 (1982). When circumstantial evidence alone is relied upon, it must indicate the accused’s guilt and exclude every other reasonable hypothesis. Whether circumstantial evidence excludes every other reasonable hypothesis is usually a question for the jury, and it is only when the evidence leaves the jury solely to speculation or conjecture that it is insufficient as a matter of law. Cristee v. State, 25 Ark. App. 303, 757 S.W.2d 565 (1988); Deviney v. State, 14 Ark. App. 70, 685 S.W.2d 179 (1985). Jurors are not required to set aside their common knowledge but may consider evidence in the light of their observations and experiences in the ordinary affairs of life and draw reasonable inferences from circumstantial evidence to the same extent that they could from direct evidence. Payne v. State, 21 Ark. App. 243, 731 S.W.2d 235 (1987).
Arkansas Code Annotated § 5-36-106(a) (1987) provides that a person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing it was stolen or having good reason to believe it was stolen. Subsection (e)(1) provides that theft by receiving is a class “B” felony if the value of the property is $2,500.00 or more.
Danny Kimbrell, general manager of North Point Mazda, testified that in November 1989 his dealership received a 1989 Mazda RX7 Turbo (Turbo),, equipped with power windows, power locks, radio stereo-compact disc player, plush floor mats, black leather seats, and an interior safety lock box. Several days later, the interior of this vehicle had been completely stripped and all of the removable parts on the inside of the car had been taken. He also testified that in 1988 his agency sold appellant a black Mazda RX7 Sports Coupe (Coupe), which was equipped with a cloth interior and none of the extras such as those on the Turbo.
An official from Twin City Bank testified that appellant had financed his vehicle through the bank. In October of the following year, appellant’s payments were in default and the vehicle was repossessed by the bank. The official stated that the bank delivered the vehicle to North Point Mazda for appraisal.
Kimbrell testified that he examined the repossessed vehicle and found that it now contained, with the exception of the stereo system, the same type of extra equipment as had been stripped from the more expensive Turbo. These parts contained only model numbers and could not be identified by serial number as being the stolen ones.
The vehicle had originally been black, but by the time it was repossessed it had been repainted white. Kimbrell testified that at the time the replacement parts were put on appellant’s vehicle, they were not available at the dealership, junkyards, or any other place in the Little Rock area because they were from a new model. Only two Turbos had been sold in Little Rock and none had been wrecked. He testified that all of the parts not originally on the repossessed car were the same type as those missing from the stripped vehicle.
Rebecca Ford testified that she was married to appellant when he purchased the vehicle, and that she had subsequently seen the vehicle on several occasions in a body shop where appellant was temporarily employed. At one time, she saw it there being painted white. She said she subsequently saw a black hood with a scoop being painted white and placed on the vehicle. She testified that she also saw appellant switching the interior of the vehicle by installing leather seats and door panels, a new gear shift, carpets, and portions of a dashboard.
Ricky Bauer testified that he had been in the automobile business for eighteen years. During that period of time, he had been a mechanic and worked in parts departments, and he was presently the parts manager for North Point Mazda. He testified that he was familiar with the manner in which Mazda keys were made, and that on each RX7 model, one key fit all of the locks. On the stripped vehicle, the key that fit the ignition would also open all of the other locks, including the safety lockbox in the rear seat. He tried to open the lockbox on the repossessed vehicle with the ignition key of the repossessed vehicle. It did not fit. He then obtained from company records the key codes to the stripped vehicle and, according to those codes, cut a key which did not fit the ignition of the repossessed car, but which did open the lockbox that had been placed in it. The vehicle sold to appellant originally contained no such lockbox. He testified that because of the way Mazda keys were designed and made, the probability of one key fitting two cars was 1 in 7500.
He stated that many of the interior accessories on the repossessed car were not original equipment. All of the added features were the same type as those items listed as stolen from the Turbo, with the exception of the Turbo’s stereo system and two doors. Based on his experience in dealing with both new and used parts for Mazda cars, he opined that the value of the parts stolen from the Turbo was in excess of $7,000.00.
While there was no direct evidence that the parts added to the repossessed vehicle were those taken from the stripped one, we cannot conclude that the inferences arising from the proven facts foreclose such a conclusion. The fact that parts were stolen from the stripped vehicle was clearly established, as was their value. There was evidence that the parts installed on appellant’s vehicle after its purchase had similar model numbers to the model numbers of the parts from the stripped vehicle. There was also evidence that those replacement parts found on the repossessed vehicle were not available at that time either in Mazda parts departments or junkyards. In addition, there was evidence that on each RX7 model, one key fit all of the locks. Here, the ignition key of the repossessed vehicle could not open the lockbox on the repossessed vehicle; yet, a key cut from the code to the stripped vehicle did open the lockbox. From our examination of the record, we cannot conclude that the jury’s determination that the finding of guilt of theft by receiving of a value in excess of $2,500.00 is not supported by substantial evidence.
Appellant next contends that the trial court erred in permitting Bauer to testify about the mathematical probability of two keys fitting the same vehicle. We agree with appellant that the interjection of sophisticated mathematical probabilities into a criminal trial raises a number of concerns. However, our courts have permitted in many instances similar expert testimony after analyzing human hair, blood, tire tracks, and other physical evidence where there is a reasonable basis for the opinion stated by the expert. In Miller v. State, 240 Ark. 340, 399 S.W.2d 268 (1966), the supreme court ruled that admission of unsubstantiated, speculative testimony, based on probabilities, was erroneous. Such opinions may not be predicated on estimates and assumptions, without a reasonable foundation or basis for the opinion. However, in Miller the court quoted with approval from 20 Am. Jur. Evidence § 795:
[ A]n expert witness’ view as to probabilities is often helpful in the determination of questions involving matters of science or technical or skilled knowledge. ... It is necessary, however, that the facts upon which the expert bases his opinion or conclusions permit reasonably accurate conclusions as distinguished from mere guess or conjecture.
See 31A Am. Jur. 2d Expert and Opinion Evidence § 86 (1989).
Here, the witness’s testimony as to the probability of one key fitting two vehicles was not based upon estimates or assumptions. He reasonably based his opinion on his experience and personal knowledge of the manner in which keys were made and the key-code books of the Mazda manufacturer.
Appellant relies • heavily on the decision in United States v. Massey, 594 F.2d 676 (8th Cir. 1979). In Massey, the court held that the admission of such evidence constituted reversible error under the circumstances of that case. There, the judge injected himself into the interrogation of the expert. The judge’s comments construing the expert’s testimony with respect to the mathematical probabilities, coupled with the prosecutor’s emphasis on the mathematical probabilities in his closing argument, were found to constitute “plain error” under Rule 52(b) of the Federal Rules of Criminal Procedure, and required reversal of the defendant’s robbery conviction. Here, the trial judge did not inject himself into the interrogation nor comment upon the probabilities. Although the prosecuting attorney did allude to those probabilities in her closing argument, no objection was made to her argument on any basis. Our courts, unlike the federal courts, do not recognize the “plain error rule” but require a specific and timely objection in order to preserve an issue for appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
Also, the case of People v. Collins, 68 Cal.2d 319, 438 P.2d 33, 66 Cal. Rept. 497 (1968), is not applicable here. There, instead of relying on data accepted in the field, the expert estimated the frequency of the occurrence of certain characteristics and based his probability projections on those estimates. The California Supreme Court found the same lack of demonstrable foundation that our supreme court found objectionable in Miller v. State, supra. We have reviewed a number of cases involving this situation, including State v. Carlson, 267 N.W.2d 170 (Minn. 1978), which holds that the psychological impact of mathematical probabilities upon the jury makes it inadmissible in every case. However, we believe that the better-reasoned cases hold to the contrary, i.e., where the proper foundation has been laid and undue prejudice does not result, expert testimony of this nature may be admitted. Here, we cannot conclude that a proper foundation was not laid or that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.
Appellant next contends that the trial court abused its discretion in holding that Bauer was qualified to testify as an expert witness. We do not agree.
Rule 702 of the Arkansas Rules of Evidence provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Whether a witness may give expert testimony rests largely within the sound discretion of the trial court, and its determination will not be reversed unless that discretion is abused. There is a decided tendency to permit the finder-of-fact to hear testimony of persons having superior knowledge in a given field, unless clearly lacking in training or experience. Dildine v. Clark Equipment Company, 282 Ark. 130, 666 S.W.2d 692 (1984); Killian v. Hill, 32 Ark. App. 25, 795 S.W.2d 369 (1990). If there is a reasonable basis for saying a person knows more about the subject at hand than a person of ordinary knowledge, his evidence is admissible. Killian v. Hill, supra.
Here, Bauer testified that he had been engaged in the automotive industry for over eighteen years. During that period, he had worked as both a mechanic and parts manager. He was a high school graduate and had attended five schools dealing with Mazda parts and over twenty schools for mechanics. While a mechanic, he had worked on several thousand automobiles, using both new and used parts. During the past year, he had purchased parts for Mazda automobiles over one hundred times.
Bauer stated that he was familiar with the keys for Mazda cars and how they were made, and that he had experience in duplicating them. He testified that Curtis Industries made key-cutters for most of the after-market keys for all major automobile manufacturers, including Mazda. A security code book is used in connection with the key-cutter, in which the manufacturer includes a code for its keys. He stated that Mazda utilized only 7500 different “cuts” in its 1988-1989 cars, and used a code of “00 to 7500” in order to determine which keys might fit which automobiles. He testified that some of his knowledge came from trade journals, some from the Curtis Industries code books, and some from his own experience at the Mazda agency in Little Rock.
We cannot conclude that this witness lacked the training, skill, and experience that would give him a superior knowledge of matters about which he testified, or that he did not know more about the subject than persons of ordinary knowledge. See Courteau v. Dodd, 299 Ark. 380, 773 S.W.2d 436 (1989). The trial court did not abuse its discretion in permitting Bauer to testify as an expert.
Nor do we find merit in the argument that his statements were inadmissible as based on hearsay because he had read similar information in trade magazines. An expert may base an opinion on what he learns from others, despite it being hearsay, so long as the sources are of a type reasonably relied on by experts in a particular field. See Killian v. Hill, supra; Ark. R. Evid. 703. The Curtis key codes were said to be relied upon by persons skilled or having responsibility for duplicating keys for many different makes of cars, and there is no indication that trade magazines subscribed to by persons in a particular trade are less than reliable. In addition, it is to be noted that Bauer relied upon his own calculations in confirming the figures about which he had testified. The relative strength or weakness of the factual underpinnings of opinions of experts goes to the weight and credibility of the evidence and not to its admissibility. Killian v. Hill, supra; Arkansas State Highway Commission v. Schell, 13 Ark. App. 293, 683 S.W.2d 618 (1985).
Affirmed.
Jennings and Rogers, JJ., agree. | [
48,
-24,
-27,
60,
8,
96,
58,
-72,
97,
-105,
59,
115,
103,
-62,
28,
123,
102,
127,
85,
99,
-35,
-77,
39,
89,
-30,
-73,
-71,
-57,
117,
-54,
-92,
28,
77,
112,
-62,
-59,
102,
8,
-121,
88,
-114,
-128,
-72,
71,
112,
54,
40,
39,
48,
31,
-79,
-98,
-29,
43,
31,
-57,
-55,
44,
75,
62,
88,
17,
-88,
-121,
125,
20,
-93,
52,
-101,
70,
-40,
44,
-36,
49,
3,
104,
51,
-78,
-62,
-44,
105,
-101,
12,
112,
-30,
1,
60,
-23,
56,
-119,
34,
119,
15,
-90,
-102,
73,
73,
109,
-105,
-75,
102,
52,
12,
-22,
-25,
101,
28,
108,
-125,
-113,
24,
-77,
13,
53,
30,
64,
-37,
-111,
16,
32,
-51,
-30,
92,
85,
91,
-101,
-114,
-105
] |
OPINION.
Harrison, J.
We can see no reasonable ground for the •objection that the trial was for a time suspended by the court. Such suspension was within its sound discretion. Johnson v. The State, 32 Ark., 309.
The evidence of the father’s verbal consent to the sale of the liquor to the minor was properly excluded from the jury. His consent, to have been a justification to the defendant, should have been in writing, as required by the ■statute.
The third instruction given for the State was not as clear, perhaps, as it might have been, as, if standing alone, the jury might have understood from it that the facts mentioned ill it were conclusive evidence of. the sale ; but its language was equally susceptible of the meaning and correct proposition, that they but tended to prove the sale, or that it might be Inferred from them; and, taken in connection with the fifth, there is no room for the supposition that the jury were mistaken by it. The other instructions for the State were unobjectionable.
The third and fourth instructions asked by the defendant, being in palpable contradiction to the statute, were, of course properly refused; and the coui’t did not err in its modification of the second, having already given instructions of similar import to it as framed; besides, the jury not being the judges of the competency of the evidence, might have been misled by it.
The evidence fully sustained the verdict.
Affirmed. | [
-16,
-22,
-52,
-65,
26,
96,
34,
-98,
65,
-93,
102,
115,
-17,
-46,
13,
123,
-78,
127,
116,
123,
-45,
-77,
55,
73,
-6,
-13,
-8,
-44,
-79,
111,
-27,
125,
77,
-80,
-54,
-11,
102,
-53,
-47,
86,
-126,
-112,
57,
76,
80,
-110,
52,
119,
86,
14,
-31,
-113,
-29,
42,
31,
-61,
-23,
40,
75,
61,
88,
48,
-104,
7,
79,
4,
-77,
54,
-100,
-93,
-40,
110,
72,
49,
1,
-24,
123,
-108,
-62,
116,
9,
-117,
40,
102,
106,
33,
13,
-18,
-3,
-88,
47,
-18,
-99,
-90,
-112,
72,
11,
-52,
-74,
-3,
40,
52,
46,
124,
-14,
93,
29,
124,
2,
-57,
54,
-77,
-113,
44,
-126,
0,
-29,
-127,
48,
101,
-51,
-14,
92,
69,
18,
91,
-113,
-74
] |
Harrison, J.
The lien of the landlord continues but for six months after the rent becomes due. Sec, 4098 Gantt’sDigest.
And where there has been a conversion of the crop, or a. portion of it, by one with knowledge of the lien, and it attaches in equity to the proceeds in his hands, its continuance is only for the same period, for equity follows the-law. Valentine v. Hamlett, Ad’r., MS. Opinion.
The suit not having been commenced within six months-after the rent became due, and the lien having expired, no-equity or cause of action was shown in the complaint.
The,decree of the Court below is, therefore, reversed,, and the. complaint dismissed for the want of equity. | [
-126,
-29,
-100,
63,
64,
96,
98,
-100,
66,
8,
34,
-41,
-19,
-14,
20,
111,
-30,
123,
-27,
-22,
71,
-93,
34,
96,
-29,
-77,
-45,
-12,
-67,
77,
-58,
-1,
12,
48,
-62,
-41,
-58,
-96,
-55,
94,
6,
-121,
-83,
-20,
121,
65,
52,
24,
64,
13,
33,
16,
-13,
47,
57,
73,
107,
41,
-55,
41,
96,
-8,
-110,
13,
-5,
7,
-77,
22,
-44,
-49,
90,
76,
-116,
61,
4,
-30,
82,
-74,
-90,
84,
15,
-103,
40,
98,
98,
50,
5,
-1,
-76,
-104,
44,
-6,
-115,
-74,
-119,
120,
27,
0,
-66,
31,
100,
-124,
-26,
126,
102,
-43,
31,
-8,
2,
-50,
-42,
-77,
29,
64,
-118,
-117,
-18,
7,
49,
113,
-49,
-88,
92,
103,
17,
-37,
70,
-40
] |
English, C. J.
The. appellant, Dove, was indicted m the .Circuit Court of Lincoln county, for stealing a bay mare, of the value of $100, the property of J. M. Martin. The jury found him guilty, and fixed his punishment at imprisonment in the penitentiary for five years. A new trial was refused him, and he was sentenced in accordance with the verdict.
It was not made ground of the motion for a new trial that the court committed any error in its instructions to the jury.
There is nothing in the first ground assigned that the verdict was contrary to law. It was responsive to the allegations of the indictment, in good form, and fixed the punishment of the accused at the shortest period of imprisonment in the penitentiary prescribed by the Statute for the offense charged. Gantt’s Digest, sec. 1358.
The assignment that the verdict was contrary to the evidence, deserves grave consideration, in view of the age of the accused.
.. According to the testimony of William Dove, the father of appellant, he was born in March, 1867, and was, therefore, between twelve and thirteen years of age on the tenth day of August, 1879, the time at which the offense is alleged to have been committed.
By the common law, if a child more than seven and under fourteen years of age is indicted for a felony, it will be left to the jury to say whether the offense was committed by the piisoner, and if so, whether, at the time of the offense, the prisoner had a guilty knowledge that he or she was doing wrong. The presumption of law is, that a child of that age (between seven and fourteen) has not such guilty knowledge, unless the contrary be proved by the evidence. 1 Hale, Pleas of the Crown, (1 American Ed., notes by Stokes & Ingersoll), p. 25 to 28, and cases cited.
By Statute : — “An infant under twelve years of age shall not be found guilty of any crime*or misdemeanor.” Gantt's Digest, sec. 1230.
Yet when the accused is between the ages of twelve and fourteen, the common law presumption still prevails that he or she is not doli capax, or capable of discerning between good’and evil, until the contrary is affirmatively shown by evidence.
No witness was examined as to the intelligence of appellant, or as to his knowledge of right and wrong, good and evil.
Without his own confession there was not sufficient evidence. (putting aside hearsay) that he took the mare from the lot of the owner and rode her away.
Lord Hale said that the circumstances should be inquired into by the jury, and the infant should not be convicted upon his own confession. 1 Hale, P. C., 27.
The rule is stated in note to 1 Hale, above cited, thus: “From the supposed, imbecility of mind, the protective humanity of the law will not, without anxious circumspection, permit an infant to be convicted on his own confession. Yet if it appear, by strong and pregnant evidence and circumstances, that he was perfectly conscious of the nature and malignity of the crime, the verdict of a jury may find him guilty,” etc.
The rule was so expressed in a case of murder where the accused was between the ages of twelve and fourteen.
Moreover, it is doubtful upon all the evidence, including the confession of appellant, whether the mare was taken with a felonious intent. It appears that on the evening of the tenth of August, his father had threatened to whip him for disobedience, and on the following night he took the mare from the lot of the owner, rode her some miles, turned her loose, and then traveled on, on foot, to the house, where he was found and arrested. If he did not intend to convert the mare to his own use, when he took her from the lot, but his intention was to ride her for some miles, as he did, to escape a whipping, and then abandon her, it was a trespass, and not a theft. Roscoe, Cr. Ev., p. 590.
. II. Jacob Martin, the owner of the animal, a witness for the State, after stating where he found the mare, and where he found and arrested appellant, and that when he brought him back to where he turned the mare loose, he went out in the bush, and got the bridle he said he had ridden the mare with, was permitted to state, against the objection of tbe counsel of appellant, “that the bridle belonged to another man ; that the bridle belonged to Taggart, from whom he (appellant) had stolen it;” and the admis •sion of this evidence was made ground of the motion for a new trial.
Generally speaking, it is not competent to prove a man :guilty of one felony, by proving him guilty of another ; but where several felonies are connected together, and form part of one entire transaction, then one is evidence to prove the character of the other. Baker v. State, 4 Ark., 61.
The form in which the statement of the witness objected to was made, was calculated to prejudice appellant in the minds of the jurors. The witness did not state when nor where appellant stole the bridle from Taggart. The mare was taken from the lot of her owner, on the tenth of August. If the bridle was stolen from another person, and at a different time and place, it was a distinct offense, though appellant used it in riding the mare.
Upon the whole record, we think it safer to reverse the judgment, and remand the case for a new trial. | [
-80,
-10,
-52,
-65,
42,
96,
42,
56,
-111,
-61,
-89,
115,
9,
-57,
4,
121,
-23,
-7,
84,
113,
-64,
-77,
-73,
-15,
-14,
-13,
-97,
-43,
-77,
105,
-1,
119,
0,
114,
-54,
117,
-62,
74,
-63,
82,
-122,
-123,
-6,
-32,
18,
-88,
52,
121,
63,
14,
97,
-98,
-93,
42,
62,
-21,
43,
44,
73,
61,
72,
-15,
-65,
-83,
77,
22,
-94,
6,
-101,
7,
72,
108,
92,
17,
9,
-8,
115,
-106,
-126,
-44,
111,
-117,
-116,
98,
70,
1,
77,
-21,
56,
-55,
62,
126,
-119,
-89,
-102,
113,
75,
4,
-97,
-41,
114,
-48,
-73,
110,
-29,
-59,
125,
96,
97,
-113,
20,
-125,
78,
-84,
-98,
-74,
-37,
53,
81,
113,
-50,
-30,
93,
48,
121,
-101,
-97,
-74
] |
Hon. E. H. English, C. J.
Appellant, George Johnson, was convicted on the following indictment, and motion in .arrest of judgment overruled :
Charge : That George Johnson, on the twenty-fifth day ■of December, 1879, in the county of Franklin, &c., unlawfully did sell to one E. P. Williams, one pint of a certain preparation of ardent liquors commonly called “Granger 'Tonic,” when the owner thereof had not previously thereto procured license from the County Court of said county authorizing the same, &c.
This indictment is like that in the State v. Keith, ante 96, which was held bad. It was not alleged that appellant had no license; and if he had he was guilty of no offense, though the owner of the tonic sold had none; and if the owner of the tonic had license and appellant none, he was .guilty of a violation of the statute, unless he sold as the .agent or employee of the owner, and under his license.
It is sufficient to charge that the seller has no license, •and unless he has, or sells for some one who is licensed he may be convicted.
So if liquor be sold without license, the statute subjects not only the seller but the owner or person interested in the •sale to indictment. Act of Eighth March, 1879, sec. 5.
Eeversed and remanded with instruction to arrest the judgment. | [
-79,
-30,
-8,
30,
58,
112,
34,
-66,
-118,
-29,
-73,
115,
-119,
66,
1,
51,
-29,
107,
117,
121,
-51,
-9,
55,
97,
-106,
-37,
-61,
-43,
51,
79,
-60,
-43,
13,
-76,
78,
53,
102,
-33,
-55,
-36,
-126,
33,
57,
-32,
115,
-120,
52,
121,
85,
10,
81,
15,
-13,
46,
31,
-37,
105,
60,
-55,
45,
-64,
-23,
-127,
-35,
77,
22,
48,
100,
-99,
-121,
-56,
46,
-102,
17,
9,
-8,
123,
-122,
66,
-44,
13,
88,
-119,
98,
98,
32,
-43,
-17,
40,
-88,
13,
-82,
-115,
-121,
24,
80,
97,
-120,
-66,
-99,
62,
16,
39,
116,
-22,
-43,
17,
62,
-107,
-49,
-76,
-73,
15,
-88,
-126,
22,
-17,
-89,
48,
85,
-49,
110,
124,
101,
122,
27,
-115,
-28
] |
OPINION.
Eakin, J.
The complaint is intended to set forth a cause of action at law, for services rendered, material furnished, money expended, etc., by Perry, for and in behalf of the defendant railway company, for which it afterwards promised to pay. The promise is the gist of the action, and its denial makes an issue exclusively cognizable at law. The history and circumstances of the transaction are set forth in the first paragraph of the complaint, not as grounds upon which the plaintiff directly seeks equitable relief, but, rather, to show the consideration of the promise, the inducement thereto, and the facts from which a promise might be implied. It cannot be said, from the face of the complaint, that the plaintiff “should have adopted proceedings in equity,” which would have authorized the defendant, under sec. 4464 of Gantt’s Digest (second clause), to move for a transfer. Nothing was waived by failure to make such motion, and the defendant has the right to insist that •the plaintiff shall stand on the ground he has chosen, and succeed upon such principles alone as are cognizable at law.
Perhaps the most perplexing questions, and least satisfactory decisions (not always in harmony with each other), which have sprung from the inauguration of the so-called system of American procedure, regaid the kind and measure of relief which may be afforded in cases where the proof elicted under one mode of proceeding, reveals mattei relievable under the other. This is especially the case in the few States which, like Kentucky and Arkansas, have adopted the Code system generally, with the interpolation of an effort still to preserve the distinction between proceedings at law and in equity. It is very hard to do that without separate Courts of Chancery, in the face of an express provision that an error as to the kind of proceedings shall not cause an abatement or dismissal of the action. Still, it is the duty of the' courts to make the effort, and preserve the distinction, so far as they may be able, in harmony with all parts of the Code.
The decisions in those States are, as yet, few, and no set of rules can be formulated from them, entirely satisfactory to the profession ; but in our State it is now settled that relief of a purely equitable nature cannot be given in an action properly begun and prosecuted at law. This has been illustrated in a striking manner, with regard to mortgages of property, not in esse. They have been treated in actions at law as wholly void, but have been sustained in equitable proceedings. See Apperson v. Moore, 30 Ark., 56; Tomlinson v. Greenfield, 31 Ark., 557; Roberts v. Jacks, Ib., 597 The case of Talbot et al v. Wilkins et al, 31st Ark., 411, Is not in conflict with this ruling. The Court expressly held that the case being at law to enforce subrogation, a purely equitable right, the defendants might have moved to have the action changed to equitable proceedings, and that the error was waived by neglect to do so. This does not apply to a case properly brought at law, in which no such motion could be sustained. It is unreasonable that a defendant should be held to a court of law by the allegations of' the complaint and be there subjected to the administration-of principles purely equitable ; but if he has an opportunity to have the change effected and neglects it, he should not complain. Even this practice has not, in all cases, been allowed ; but the rule has been so modified as to prevent parties, by consent, from indulging in such proceedings as-would, if common, entirely obliterate the distinction between-law and equity; and a special proceeding at law, founded, upon common law or statute, cannot be made, even without objection, to subserve the purposes of a bill in equity. In-such pdain and palpable cases of perversion of remedies, it is the duty of the Circuit Judge to interfere and refuse relief, unless the complainant shall approach the court in proper fashion. Thus it was held in Crawford, Auditor, v. Carson (Ex.) et al, 35 Ib., Ark. 565, which was an effort to make-the writ of mandamus serve the purposes of an injunction, that “ it is the duty of the Courts in clear cases, whore the entertainment of a writ in the form presented, would lead to a confusion of the boundaries between proceedings at law and in equity, and between ordinary actions and special proceedings, to refuse of their own motion to do so.” That case rested upon its peculiar nature. In ordinary civil actions it may now be considered as the settled rule of this court to be observed hereafter, that actions of a purely equitable nature and so appearing by the complaint, when-brought at law, may be transferred to the equit}r side on motion of either party, or by the court on its own motion,, by virtue of its inherent power over its proceedings and that the courts should be free in the exercise of that power to-sustain the legislative intent in retaining the distinction» amidst the wreck of all forms' of action; but that the failure to do so, without a motion by parties for the purpose, is not error for reversal.
With regard to actions begun in Chancery, which upon their face appear to be exclusively and wholly cognizable at law, as, for instance, a bill to obtain judgment upon a note, or an ej'ectment bill without equitable elements, the rule is the same. It is always, however, to be borne in that if there be any equitable element to which the tion of a Court of Chancery may attach, then by the doctrine, the court in the same proceedings may administer all legal relief connected with the subj’ect matter and essential to do full and complete j'ustice at once to all parties before it.
But when, as in this case, the action is purely legal upon its face, and properly brought at law, it must be decided legal principles alone. It follows that the plaintiff cannot be sustained in his judgment, unless he has shown, by evidence, either an express promise of the defendant Eailway Company, valid in law, to pay his claim, or circumstances from which, according to legal principles, a promise may be implied.
The plaintiff relied, and the court below seems to have acted upon, a principle which grew up in the English Courts i-. . of Equity, as an Equity doctrine ; and which, like the dor’s lien, contravening the strict rules of law, was adopted, ex aequo et bono, to prevent fraud and imposition, and do substantial justice. It amounted to this: That where the formation of a corporation was in contemplation, and the promoters of the corporation were taking initiatory steps to perfect its organization, and obtain a charter, and provide. ' in advance the means necessary for its successful operation', all contracts made by such promoters, for the benefit of the future corporation, and which were reasonable and proper to put it in operation, and the benefits of which were after- wards accepted by the corporation, became binding on • the corporation without any formal contract to pay.
A brief notice of some of the cases cited by the attorney for'the appellee,«will render the nature and scope of the •doctrine more intelligible.
The leading case is that of Edwards v. The Grand Junction Railway Company; 1st Mglne & Craig, 650. The promoters of the Railway had a bill • pending in Parliament for their incorporation, which had passed the Commons and gone to the House of Lords. In the latter house, the Trustees ■of a certain Turnpike road, whose line would be crossed, •had prepared and were about to present a petitiou in opposition to the bill. After some negotiations between the committees on behalf of the projectors, and the Trustees Of the 'Turnpike, it was agreed between them that the latter should withdraw their opposition to the bill, in consideration that the railroad crossing should be carried under the turnpike by constructing a bridge for the road of a certain agreed width and structure. It was desired by the turnpike trustees that these conditions should be made provisions of the charter, but as the amendment would have involved new delays in the then advanced state of the bill, the trustees were induced to waive this demand, by the written undertaking of one of the promoters in behalf of all, to execute an agreement to the effect of the desired clauses, and to have the same confirmed by the company, as soon as circumstances •should permit. The bill was allowed to pass, which provided for crossings of any Turnpike roads by bridges of a less width. The Railway Company was proceeding to construct a bridge at the crossing of the turnpike of complainants as authorized by the charter, but of less width than had been stipulated in the compromise. The Turnpike trustees applied for an injunction which was granted. Upon a motion before the Lord Chancellor to dis solve, lie held in effect, that conceding there was no legal liability on the company, on account of a contract made before its existence, yet there was an equity bindingit not to use its chartered power, obtained through and by means of such an agreement with the proprietors, who were pressing the bill in violation of its terms. The injunction was continued.. This is a case where the agreement was made expressly for the benefit of the company, and under a pledge that the-company when organized would carry it into effect.
The case of Stanley v. Birkenhead Railway Co., 9 Simons, 264 (reported in 16 Eng. Ch. Rep’ts., 264) was one in which the projectors of a railroad, seeking a charter and fixing their line, agreed with a landed proprietor, on behalf of the proposed company, in consideration that he would withdraw his opposition to their bill, to pay him 20,0001 for the portion of his estate required by the road.
A bill for specific performance was brought against the-company, after its complete organization, or, rather, against the company whose projectors had expressly adopted the agreement, and there was a demurrer for want of equity.. The vice-Chancellor held that the case was a very simple one ; that the company was bound by the equity , and overruled the demurrer. In this case, as in the former, it appears that there was an existing organization for the purpose of promoting the railroad, and that the contract was made in the course of preliminary proceedings, necessary to-obtain the franchises, and put the road into operation..
The cases of Preston v. The Liverpool, Manchester, etc.., Railway Co., 7 Eng. L. & Eq., 124; and Webb v. The Direct London and Portsmouth Railway Company, 9 Hare., 129, are of similar import. Whilst the equity is, in all of them, readily-acknowledged, under the circumstances, they are all cases where the projectors were acting under a preliminary organization to obtain ©barters- and' perfect the- ¡scheme, and the contracts, though made with the projectors, were properly on behalf of the intended companies, and with the view entertained by both parties, at the time, of having them adopted by the companies, when perfected and ■empowered to do so. The equity is based upon the ground that, under such circumstances, it would be a fraud upon ' the vendor, or the person withdrawing an opposition, if the ■company, which had been thus pledged in advance by its creators, and obtained its franchises, through such pledges, should be allowed to violate them. None of the cases go to the extent of holding that any and all contracts made with the projectors of a road, upon their individual responsibility, and without any mutual expectation that they would form a company, which would assume the contract, would nevertheless be binding on a company, if the persons bound should afterwards organize themselves into a corporation, and put into it the property acquired, or the results of the services rendered, Such a ruling would destroy all distinction between the liabilities of corporations, and those of its individual members, and it may be added, that so wide and sweeping an equity would be very apt to deter any new subscriptions of stock under any charter. Of course there is no question but that liens upon property, in the hands of individuals, would be followed into the hands of a corpora- • tion which they might organize, and enforced against it, but that is not now the question.
The rule has been freely adopted in the American courts, yup°n the English authorities, and with the same limitations. The rule is thus defined by Mr. Redfield, in his work on the Law of Railways, vol. 1., p. 16: “ Whenever a third party enters into a contract with the promoters of a railway, which is intended to inure to the benefit of the company, and they take the benefit of the contract, they will be bound to perform it, upon the familiar principle that one who adopts the benefit of an act, which another volunteers to perform in his name1, and on his behalf, is bound to take the burden with the benefit.” This is a very well formulated expression of the rule, and on all points carefully .guarded to conform with the decided cases, and limit its scope. It has also, in some cases, been held in America, that a corporation is liable at law, upon an implied assumpsit, for services rendered before it came in esse, but which were necessary to perfect its organization, and which, after such organization was perfected, it accepted, and the benefits of Avhich it enjoyed. See Low v. Ct. & Passumpric Railuay, 45 N. H., 375, which was a suit for services rendered in procuring stock-subscriptions. This is certainly reasonable, with regard to services rendered for the direct object of perfecting the organization.
From all the authorities, it seems clear that, in order • ,• i, , . recover, m an action at law, the plamtift must show either . „ ,. , an express promise of the new company, or, that the ^ . tract was made with persons then engaged in its formation, .and taking preliminary steps thereto, and that the contract was made on behalf of the new company, in the expectation on the part of plaintiff, and with the assurance on the part of the projectors, that it would become a corporate debt, and that the'company afterwards entered upon and enjoyed the benefit of the contract, and by no other title than that derived through it. ■ From these circumstances an affirmance would be implied. Whether equities mjght arise under other circumstances, is a matter to be considered when duly presented in a Chancery case. No authorities have gone the length of holding that any contract made with individuals, exclusively upon individual credit, will become the contract of any future corporation they may form, for the more convenient management and use of the benefits of it.
The verdict in this case seems justified, under the instruc tions, and saves comment on the evidence. We will consider the instructions in the light of the principles above, announced.
The first and second instructions given for the plaintiff were given against the objections of the defendant. It is apparent that the first widens the liability of defendant much beyond the adjudged cases, and beyond any safe principle. It cannot be contended upon any authority, for instance, that if a number of gentlemen, with a view, amongst themselves, of organizing a corporation in the future, should buy property, and have labor done upon it, upon their individual responsibility, aud should afterwards form a company and take stock for their’ respective shares, the vendor or laborers would thereby, in the absence of a lien, have the legal right, by virtue of a supposed assumpsit, to impose the obligation of payment on the artificial person, the corporation. This would be unreasonable. The corporation having given stock for the property, as well as stock to other subscribers (if any), for money paid in, would have the right to proceed unincumbered. - It stands distinct from the component members, a person of itself. The creditors having no liens would have suffered no injury. They are left with the legal rights against the individuals upon which they at first reposed, and in enforcing them, may, by proper process, even reach the stock given for the property. Other elements are necessary in this action. It should appear that the view of future organisation was mutual between the contracting parties, and that the labor, material, etc., were furnished, at the time, on behalf of the future company, with the view, authorized by the assurances of the projectors, that the company, when chartered, would assume the debt, as created in its behalf. In such case only would the acceptance of benefits of the contract amount to a ratification, and implied promises at law, although there still might arise an obligation on a promise expressed and accepted.
The first instruction was erroneous and misleading. The second does not appear objectionable.
All the instructions asked by defendant were refused except the first and tenth. The first referred to the debts of the old company, and had little application; as the evidence is positive that the credit was' not given to it, but exclusively to the bondholders. The tenth is a general truism.
The second should have been given. It is a clear statement of the law, considering that the contract may be expressed or implied.
The third and fourth would have been misleading, and were properly refused. Corporations may incur legal liabilities from conduct, as above indicated.
The fifth would have been improper. Whether evidence6. tends to prove an issue may, on objection, be determined the court when offered. After it has gone to the jury, less wholly irrelevant, it is the province of the jury to weigh it and determine how far it, with other circumstances, conduces to prove the issue.
The sixth has been held improper by this court, under our Constitution, and we adhere to the former rulings. If there is any evidence whatever, however slight, to the issue, it should not be taken from the jury, even if the court is satisfied that it would grant a new trial, if verdict were found upon it. The learned counsel for the appellant press this point in their brief with much force, upon the practice at common law, in the Federal Courts, and in the courts of other States. We think the positive injunctions of the State Constitution, however, settle the matter here : “Judges shall not charge juries with regard to matter of fact, but shall declare the law.” Art. VII., .sec. 23. If the juries abuse this power, there may be a new trial; but that is quite different in its consequences, from a direction for a verdict.
The seventh would have been misleading, perhaps, although literally correct, as an abstract proposition. Under the circumstances, it might have diverted the attention of the jury from the possible implied contract by conduct, and by use of the benefits of a contract. The refusal was not ^ er1'01'- It would, have been better, however, to have qualified it by the insertion of “if there be no other sufficient evidence of an implied or express promise,” or words to that effect.
ratioSiPot mlmbe vsS struotion) The eighth, although strictly correct, was subject to the qualification, and might, as worded,.have misled. It tended to divert the minds of the jury from the obligation of the company, which might attach, from circumstances as explained above, and might have led them to suppose that an express assumpsit was necessary. It would have been better to have inserted, or added, “either by express promise, or one to be implied in law.”
The ninth instruction asked was clearly proper, and its reerroneous. It is certainly the duty of the party having onus to produce a preponderance of proof; otherwise, matters should stand as they are. The degree of preponderance is immaterial, but there must be some, of which the jury should judge.
There was no error in refusing a new trial on the ground °f surprise: The defendant might have called for a bill of particulars.
As to the second count in the complaint, no error is but the judgment being in solido, must be re- , versed.
On the return of the cause, the plaintiff, if so advised, may proceed upon the second count alone, and dismiss as J to the first, with a view of filing a bill in equity as to the matters therein, or he may have a new trial on the whole at law,
Eeverse for the errors indicated, in overruling the motion for a new trial, and remand the cause for further proceedings, in accordance with law and this opinion. | [
-110,
108,
-40,
-19,
-22,
100,
40,
-22,
113,
65,
39,
-41,
-19,
-58,
20,
55,
-9,
121,
80,
106,
85,
-14,
7,
98,
-46,
-109,
-45,
-43,
-79,
-51,
-32,
-1,
76,
48,
-62,
-43,
71,
-54,
-63,
30,
78,
13,
11,
96,
-39,
10,
52,
57,
20,
15,
65,
-50,
-13,
40,
24,
-9,
-23,
63,
-5,
-91,
-16,
56,
-70,
13,
127,
7,
33,
36,
-36,
103,
78,
12,
-128,
48,
58,
-24,
115,
-74,
-122,
-12,
73,
-101,
-119,
102,
98,
33,
13,
-23,
-104,
-108,
46,
-103,
-115,
38,
-77,
24,
11,
41,
-67,
-100,
116,
0,
-89,
126,
-2,
21,
95,
-84,
3,
-117,
-106,
-94,
-83,
54,
-98,
3,
-18,
-94,
16,
112,
-50,
-16,
93,
71,
56,
-101,
-98,
-4
] |
Eaicin, J.
This Court held, in Smithee, Comm’r, v. Garth, 33 Ark., 17, that there was no law authorizing the issue of “Arkansas State Levee Bonds.” Hence they were , void, and their acceptance by the company imposed upon it no duty for the neglect of which it could be held amenable to the State or any individual.
. The agreement by the Little Rock, Pine Bluff and New Orleans Railroad Company, in consideration of a right of way over plaintiffs’ land, to so build their road bed as to. make it efficient as a levee to protect the lands, was connected with, and in furtherance of, the legitimate object of the company, and imposed upon it, as an artificial person, a personal obligation, for a breach of which it would have been liable to an action at law for damages. But, as set forth, the construction of the levee was not a condition of the grant of right of w&y, either precedent or subsequent. The right of way became the property of the company, and upon consolidation, passed to the Texas, Mississippi and ' Northwestern Railroad. Upon the consolidated road the •obligation became also binding; and still is, if it be alive ; not as “pains or penalties,” under Section 4969 of Gantt’s Digest, -but upon general principles of law and equity. These words refer to forfeitures and pecuniary punishments alone, when applied to corporations. The sense of pains is obvious. The word is not technical. For “penalties'’ ’ see Bouvier’s Die, in verbum.
• How the defendant corporation came into possession and •control of the right of way is not definitely stated. It . ■ pears to be a purchaser. As such it would not, as a A 1 ■of law, by virtue of its purchase of the property and •chises of the said consolidated company, become bound to ■fulfill its personal obligations as distinct from those which were liens upon the property. If the purchasing company knew of any equities against the other in favor of third persons, and bought subject to him, it might make a different •case, and perhaps afford ground for some appropriate relief in Chancery. But the obligation is not transferred ipso facto ■on the purchase. Otherwise no sale could ever be made of ■a railroad, from fear of coming into a damnoso hcereditas.
The same reasoning applies to the acts of the defendant in altering the road bed. In the absence of any allegations •of notice at the time of purchase that the road bed was intended for a levee, and built as such in consideration of the right of way, they would not be answerable for any acts •done on this part of the road bed, which it might have done if the right of way had been bought or condemned in the usual way.
Affirm the judgment. | [
118,
126,
-40,
-4,
-54,
64,
56,
-102,
-47,
-70,
-27,
83,
-115,
4,
0,
113,
-25,
-5,
112,
59,
-43,
-93,
111,
98,
-46,
-45,
-7,
-59,
50,
77,
-20,
-42,
76,
49,
-54,
-43,
-25,
-53,
-39,
88,
-50,
8,
-102,
109,
-7,
1,
48,
107,
20,
79,
17,
-99,
-29,
32,
24,
-63,
-83,
46,
79,
45,
-48,
120,
-104,
-51,
127,
4,
33,
4,
-71,
33,
-54,
28,
-104,
49,
25,
-20,
115,
54,
-121,
116,
13,
-103,
8,
98,
99,
0,
5,
-49,
24,
-104,
46,
-6,
-115,
-122,
-58,
88,
3,
91,
-73,
-43,
94,
0,
-122,
-2,
-10,
69,
89,
104,
3,
-117,
-42,
-95,
-113,
-28,
-108,
1,
-53,
35,
48,
68,
-58,
-74,
93,
67,
114,
-109,
-113,
-47
] |
James R. Cooper, Judge.
The appellant, David Lynn Foster, was convicted of conspiracy to commit capital felony murder, a violation of Ark. Code Ann. § 5-3-401 (1987). He was arrested on November 18,1989,and was charged with theoffense on November 21,1989. Because he was not tried until December 10,1990, he argues that he was denied the right to a speedy trial. We find no error, and we affirm.
Arkansas Rule of Criminal Procedure 28.1 (c) provides that a defendant is entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2. Rule 28.2 states that the time begins running from the date the charge is filed, or if he is held in custody, from the date of the arrest. It is undisputed that the time for a speedy trial began running on November 18 when the appellant was arrested. To comply with the speedy trial rules, he should have been tried by November 18,1990; however, his trial was twenty-two days after that date. The docket reflects the following pertinent dates:
November 18, 1989: Arrested and taken into custody.
November 21, 1989: Charged with conspiracy to commit capital felony murder.
October 3, 1990: Failed to appear for a hearing and an alias warrant was ordered.
October 17, 1990: Placed in custody at the County Jail at the Hempstead County Courthouse, in Hope, Arkansas.
November 16, 1990: The trial court entered an order continuing the case and reset for January 8,1991. (The order states that the period resulting from this continuance is excluded but stated no reason for the continuance to January 8.)
November 21, 1990: Appeared in court and was told pre-trial was set for December 5, 1990, and trial was set for December 10, 1990.
November 28, 1990: Filed motion for probable cause hearing.
December 5, 1990: Made a motion to dismiss for lack of speedy trial; motion was denied.
December 10, 1990: Appeared with counsel prior to his jury trial, and renewed his motion to dismiss for lack of speedy trial. The court again denied appellant’s motion.
Once the defendant has proved that he was tried after the speedy trial deadline, the State has the burden of showing that any delay was the result of the appellant’s conduct or was otherwise legally justified. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990); Johnson v. State, 27 Ark. App. 217, 769 S.W.2d 37 (1989). Rule 28.3 sets forth certain periods which are excludable when computing the time for trial. Rule 28.3(e) states that the period of delay resulting from the absence or unavailability of the defendant is excludable. The appellant failed to appear for a hearing which was set for October 3, 1990, and an alias warrant was issued. He was arrested and placed into custody on October 17, 1990. The parties agreed that this fourteen day period is excluded from the computation of the time for a speedy trial.
The State correctly points out that it was required to bring the appellant to trial by November 18, 1990. As that day was a Sunday, the speedy trial period ran until the end of the next day, November 19, 1990. Thus, according to Ark. R. Crim. P. 1.4, November 18 is not included as part of the period. Consequently, the appellant was tried seven days after expiration of the time for a speedy trial.
From this period, we also subtract twelve days for the period from November 28, 1990, when the appellant filed his motion for probable cause, to December 10,1990, when the trial started. The period that a pretrial motion is pending is excludable under Ark. R. Crim. P. 28.3(a). Though the State argues that seven days should be excluded for consideration of this motion, from November 28 to December 5 when the trial court denied the appellant’s motion to dismiss, the record does not show that the motion for probable cause was ruled upon until the trial started. When the twelve-day period is subtracted, the result is that the case was tried within the time for a speedy trial.
The appellant also argues that the trial judge erred in failing to make written entries as to excludable periods, nor did he provide for any exceptional circumstances necessitating the delays. Failure to make written entries, required by Rule 28.3(i), is not, in itself, reversible error. McConaughy, supra; Henson v. State, 38 Ark. App. 155, 832 S.W.2d 269 (1992). Furthermore, the showing of exceptional circumstances applies only to cases where the delay results from “congestion of the trial docket.” Here, there is no evidence the case was continued due to docket congestion. Therefore, we find no error, and we affirm.
Affirmed.
Jennings and Mayfield, JJ., agree. | [
112,
-21,
-4,
-114,
9,
-63,
56,
24,
67,
-29,
96,
83,
45,
-57,
5,
121,
11,
107,
85,
-15,
-48,
-90,
71,
65,
-30,
-13,
91,
-41,
55,
77,
-66,
-33,
8,
112,
-54,
81,
-58,
104,
-125,
-40,
-122,
9,
-71,
96,
16,
10,
32,
99,
122,
7,
49,
28,
-93,
-85,
20,
-54,
-23,
124,
90,
62,
-64,
117,
-37,
5,
-81,
20,
-95,
-124,
-109,
13,
120,
62,
-44,
48,
32,
-24,
118,
-110,
-122,
100,
111,
11,
44,
36,
99,
41,
76,
-20,
120,
-96,
30,
62,
-99,
-121,
-102,
65,
107,
109,
-105,
-43,
123,
20,
46,
-4,
109,
-60,
91,
108,
10,
-34,
-112,
-109,
-51,
13,
-106,
-117,
99,
-123,
112,
113,
-49,
-26,
92,
70,
81,
-5,
-108,
-76
] |
Elizabeth W. Danielson, Judge.
In this worker’s compensation case, appellants appeal the decision of the Workers’ Compensation Commission holding that appellants were responsible for the payment of the remarriage lump sum benefits under Ark. Code Ann. § 11-9-527(d)(1) (1987). Appellee William Tate is deceased and it is his widow’s interest in benefits that are at issue here. We affirm the commission’s decision.
Tate was killed in January of 1981 during the course of his employment with the Fort Smith Police Department. He was survived by his wife, Anita, and two minor children. The claim was accepted as compensable and appellants began paying death benefits. At the time of Tate’s death, the maximum liability of an employer or carrier in weekly benefits was $50,000. Appellants reached payment of the maximum amount in August of 1988. The Death and Permanent Total Disability Trust Fund (Fund) then began making the weekly benefit payment, as required by Ark. Code Ann. § 1 l-9-502(b)(2) (1987). On June 8,1990, Anita remarried and requested the 104-week lump sum award provided pursuant to Ark. Code Ann. § 11-9-527(d)(1) (1987).
At the hearing before the administrative law judge, appel lants contended that the Fund was liable for the lump sum payment. Relying on Death & Permanent Total Disability Trust Fund v. Tyson, 304 Ark. 359, 801 S.W.2d 653 (1991), the administrative law judge concluded that appellants were responsible for payment of the lump sum benefit.
On appeal before the commission, appellants raised a new argument, contending that Anita is not qualified for the lump sum benefit because of the “limiting language” found in Ark. Code Ann. § 11-9-527(d)(1). That provision states:
In the event the widow remarries before full and complete payment to her of the benefits provided in subsection (c) of this section, there shall be paid to her a lump sum equal to compensation for 104 weeks, subject to the limitation set out in §§ 11-9-501 — 11-9-506.
(Emphasis added.) Subsection (c), to which this provision refers, sets out the amounts the beneficiaries are entitled to receive. It refers back to §§ 11-9-501 — 506. Section 11-9-502 specifically provided at the time of Tate’s death that the employer’s liability for weekly benefits ceased at $50,000 and that the Fund thereafter became liable for benefits.
Appellants base their contention that the commission erred in finding them responsible for the lump sum benefit on the “before full and complete payment” language in § 11-9-527(d)(1). Under § 11-9-502, a widow’s entitlement to benefits will never end unless she dies or remarries, but the employer’s liability does cease at $50,000. Appellants argue that since the only type of benefit that can be fully and completely paid is the employer’s maximum liability for weekly benefits, the widow must remarry before the employer or carrier pays the full $50,000 in order to qualify for the lump sum benefit.
In a well-reasoned opinion, the commission observed that the “full and complete payment” phrase does create uncertainty when considered in light of the unlimited nature of the benefits provided in Ark. Code Ann. § 11-9-527(c), but rejected appellants’ contention that Anita was not qualified for the lump sum benefit. Based on the reasoning discussed below, the commision determined Anita was entitled to receive the lump sum benefit and that appellants were responsible for payment of the benefit.
As did the commission, we find it helpful to review the history of this provision and related provisions. The provision containing the language in question was part of the original Workers’ Compensation law that was passed in 1939. See Act 319 of 1939, § 15(b) and 15(d). Under this act, a widow’s weekly benefits were limited to a total sum of $7,000. Initiated Act No. 4 of 1948 increased this amount to $8,000. Initiated Act No. 1 of 1956 again increased the limit, setting it at $ 12,500. Therefore, as originally enacted, a widow’s entitlement to weekly benefits was limited and “full and complete payment” of a widow’s weekly benefits was possible prior to either her remarriage or death.
In 1968 the legislature eliminated the statutory limitation on the total amount of death benefits payable to the dependents of a deceased employee. In 1973, a new provision was added, limiting the employer’s liability to the first $50,000 in weekly benefits and making the Fund liable for the weekly benefits in excess of $50,000. Although these new provisions were enacted, changing the nature of a widow’s benefits from limited to unlimited, the “full and complete payment” language was left in the provision regarding the lump sum benefit.
The first rule in interpreting a statute is to construe it just as it reads by giving words their ordinary and usually accepted meaning. Arkansas Vinegar Co. v. Ashby, 294 Ark. 412, 743 S.W.2d 798 (1988). Statutes relating to the same subject should be read in a harmonious manner if possible. All statutes on the same subject are in pari materia and must be construed together and made to stand if capable of being reconciled. Id. Provisions of our Workers’ Compensation Act are to be construed liberally in favor of the claimant. Id. In interpreting a statute and attempting to construe legislative intent, we look to the langauge of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate matters that throw light on the matter. Hanford Produce Co. v. Clemons, 242 Ark. 240, 412 S.W.2d 828 (1967).
As pointed out by the commission, the statutory history of the provisions in question reflects an effort to balance the need to limit the total liability of employers and carriers against the need to adequately compensate employees and their dependents. The delimitation of benefits in 1968 and the establishment of the Fund in 1973 reflects the goal of adequately compensating the widow and dependents of a deceased employee. The obvious purpose of the lump sum benefit provision upon remarriage is to lessen the disincentive to remarry that would be inherent in a flat cutoff of dependency benefits. See 2 Arthur Larson, The Law of Workmen’s Compensation § 64.42 (1992). This disincentive for marriage does not cease to exist when the employer reaches his maximum liability in weekly benefits; it continues indefinitely because the widow continues to receive benefits from the Fund. Therefore, the need for the reduction of the disincentive, in the form of a lump sum payment, is still needed even after the employer reaches his maximum liability.
Significant also is the fact that the limit on an employer or carrier’s liability under § 11-9-502 applies only to weekly benefits. The employer or carrier is still responsible for any benefits in addition to weekly compensation to which the claimant is entitled. See, e.g., Tyson, 304 Ark. 359, 801 S.W.2d 653. It is therefore not inconsistent with the limitations on liability found in § 11-9-502 to require the employer or carrier to pay the lump sum benefit.
The commission noted that although its interpretation of the statute does leave the “full and complete payment” language without meaning under the current statutory scheme, the interpretation proposed by appellants would create a ground for termination of a widow’s entitlement to receive the lump sum benefit upon remarriage that is not evident from the language of the statute. Such a construction would be in favor of the employer and therefore violate the requirement that we liberally construe workers’ compensation law in favor of the claimant. See Ashby, 294 Ark. 412, 743 S.W.2d 798.
We agree with the commission’s finding that allowing the widow to receive the lump sum payment at the time she is remarried, regardless of whether the employer or carrier has reached its maximum liability in weekly benefits, is the only interpretation of the statute that is consistent with the plain language of the statute, the history of the provisions in question, and the purposes underlying these provisions. It appears that the “full and complete payment” langauge was inadvertently left in from a time when it had some relevance and, in light of the delimitation on a widow’s weekly benefits, it is now meaningless surplusage. Although a statute should be construed to give meaning and effect to every word therein if possible, Locke v. Cook, 245 Ark. 787, 434 S.W.2d 598 (1968), unnecessary or contradictory clauses in acts will be deleted and disregarded in order to give effect to the clear legislative intent. See Cherry v. Leonard, 189 Ark. 869, 75 S.W.2d 401 (1934), and cases cited therein.
The decision of the commission that appellee’s widow is entitled to the lump sum remarriage benefit and that appellants are liable for payment of that benefit is affirmed.
Affirmed.
Cracraft, C.J., and Rogers, J., agree. | [
80,
-20,
-44,
92,
8,
-32,
26,
26,
115,
-86,
37,
81,
-21,
110,
85,
45,
107,
57,
65,
105,
-45,
-77,
69,
104,
90,
-73,
57,
-59,
-80,
77,
-76,
-42,
77,
48,
74,
-59,
-26,
-30,
-49,
88,
-50,
2,
-118,
-27,
89,
2,
56,
103,
84,
71,
33,
-114,
-69,
-85,
21,
75,
108,
110,
89,
-70,
80,
-22,
-54,
5,
-1,
21,
-109,
4,
-100,
47,
-48,
58,
-100,
49,
72,
-56,
18,
-90,
-122,
116,
107,
-119,
12,
96,
98,
-112,
5,
-51,
52,
-128,
30,
-74,
-115,
-123,
-70,
121,
51,
15,
-98,
29,
126,
20,
14,
-4,
-10,
77,
93,
-88,
-125,
-98,
-106,
-79,
-19,
120,
-108,
-117,
-29,
-121,
50,
113,
-56,
-30,
92,
-57,
127,
27,
-121,
-38
] |
Judith Rogers, Judge.
The appellants, John Garner Meats and its insurer, Silvery Companies, appeal from a decision of the Arkansas Workers’ Compensation Commission denying their claim of entitlement to proceeds from a settlement reached by appellee and a third-party tortfeasor. The issue on appeal is whether appellants can claim a lien or credit against the proceeds when they failed to intervene in the third-party action. We affirm ■the Commission’s decision.
On October 2, 1987, appellee, Gerald Ault, was injured during the course and scope of his employment with John Garner Meats. His claim was accepted as compensable, and benefits were paid accordingly. Thereafter, appellee filed a lawsuit in the Circuit Court of Crawford County against a third-party in connection with the injury. Appellants had notice of the third-party action, and demand was made upon them to assist in the prosecution of the suit. However, a claims representative with the insurance carrier assessed appellee’s chances of recovery as “slim,” and appellant declined to either intervene or participate in the lawsuit. The third-party action was settled for the sum of $20,000, and on September 15,1989, the circuit judge entered an order dismissing the case. Appellants did present a belated motion to intervene, but no action was taken on the motion by the circuit court. Thereafter, appellants pursued their claim to the settlement proceeds before the Commission, which ruled that they were not entitled to a lien or credit from the settlement funds. It is from the order incorporating this finding that appellants bring this appeal.
The issues in this case are centered upon Ark. Code Ann. § 11-9-410 (1987). Subsection (a)(1) of this statute, which is applicable under the facts of this case, recognizes the employee’s common law right to maintain a tort action against a third party, as unaffected by the making of a claim for compensation benefits against the employer. See St. Paul Fire & Marine Ins. Co. v. Wood, 242 Ark. 879, 416 S.W.2d 879 (1967). This subsection also provides that the employer and its carrier are entitled to reasonable notice and opportunity to join in the action, and that they are entitled to a lien against the proceeds recovered in the action if they, or either of them, join in the action. Subsection (b) of Ark. Code Ann. § 11-9-410 sets out the employer or the carrier’s right of subrogation, giving them the right to bring an action against any third party responsible for the employee’s • injury. Subsection (c) of the statute provides that the settlement of claims must have the approval of the court or commission.
On appeal, appellants contend that they are entitled to a lien or set-off against compensation benefits from the proceeds of the settlement because appellee did not obtain court or commission approval of th ; settlement, and also because their subrogation rights were not preserved in the settlement. We hold that appellants waived their right to claim a lien or credit against the settlement proceeds by failing to intervene in the third-party action, notwithstanding the absence of approval or the preservation of their subrogation rights.
We have held that the right to claim a lien or credit under Ark. Code Ann. § 11-9-410 is preserved by intervening in the action. Jackson Cookie v. Fausett, 17 Ark. App. 76, 703 S.W.2d 468 (1986). In Jackson Cookie, supra, we said:
Where the employee has made a claim under the Workers’ Compensation Act and the employer or carrier has had a reasonable opportunity to join in the third-party action, we hold that the employer and its carrier must intervene in a third-party action to have a right to credit, whether or not the liability of the employer or the carrier has been determined.
Id. at 81,703 S.W.2d at 471 (emphasis supplied). In this case, appellants had notice and the opportunity to join in the lawsuit, but they made the calculated decision not to intervene. Consequently, their right to share in the proceeds of the settlement was not preserved and they are not entitled to claim a lien or credit against the $20,000 received in the settlement.
We are not persuaded that appellee’s failure to obtain approval or preserve appellants’ right of subrogation alters this result. We can agree with appellants’ position that Ark. Code Ann. § 11 -9-410(c) is controlling and requires that either court or commission approval be obtained upon settlements of third-party actions. Such approval is meant is ensure that the various rights of the parties are protected. See Liberty Mutual v. Billingsley, 256 Ark. 947, 511 S.W.2d 476 (1974); Travelers Insurance Co. v. McCluskey, 252 Ark. 1045, 483 S.W.2d 179 (1972). However, appellants cannot be heard to complain about the lack of approval in claiming entitlement to a lien without first having preserved the right to a lien by intervening in the third party lawsuit. By failing to intervene, appellants waived this right that the statute was designed to protect. With regard to appellee’s failure to reserve appellants’ right of subrogation, appellants have pointed to no authority which requires an employee to protect this right for them. Furthermore, appellants have not demonstrated how the appellee’s failure to do so would resurrect their entitlement to a lien which was waived when appellants did not intervene in the lawsuit. In sum, appellants did nothing to preserve their rights, and we cannot disagree with the Commission’s decision that they are not entitled to credit against the proceeds of the settlement.
Affirmed.
Cooper, and Jennings, JJ., agree.
Appellants have submitted a motion before this court to supplement the record with a file-marked copy of their motion to intervene. We simply note that a belated motion to intervene was filed and consider appellants’ motion to supplement the record as moot. | [
20,
106,
-39,
60,
9,
96,
50,
-70,
87,
-96,
117,
83,
-17,
-26,
21,
63,
-32,
-71,
69,
106,
86,
-77,
23,
98,
-53,
-69,
-103,
69,
-72,
75,
-91,
-44,
77,
48,
-54,
-43,
-26,
-96,
-51,
28,
78,
4,
-85,
108,
121,
64,
56,
-21,
16,
91,
49,
-90,
-22,
44,
-72,
-61,
73,
40,
127,
-82,
64,
58,
-54,
13,
127,
18,
35,
68,
-100,
5,
-40,
28,
-112,
48,
1,
-55,
114,
-74,
-122,
116,
43,
-103,
8,
102,
99,
50,
17,
-19,
24,
-72,
46,
-3,
31,
-123,
-128,
16,
3,
11,
-73,
-100,
126,
4,
-122,
124,
-12,
77,
29,
44,
3,
-114,
-108,
-78,
-89,
-32,
29,
-125,
-53,
-117,
-74,
117,
-52,
-22,
93,
69,
115,
-33,
78,
-110
] |
Melvin Mayfield, Judge.
Charles Joseph McArdell ws convicted of the rape of one of his stepdaughters and sexual abuse in the first degree of another stepdaughter. He was sentenced to twenty years and six years, respectively, in the Arkansas Department of Correction, to be served consecutively. On appeal he argues that the trial court erred in (1) not granting his motion to sever the two charges; (2) not declaring a mistrial; (3) holding that the younger girl was competent to testify; and (4) refusing his motion for production of a transcript of a previous trial which ended in a mistrial. We relate only those facts which are necessary to our decision.
Appellant first argues that the trial court erred in not granting his motion to sever the offenses. Ark. R. Crim. P. 22.2 provides;
(a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to severance of the offenses.
(b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (a), shall grant a severance of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(ii) if during trial, upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.
When offenses are based on the same conduct or a series of acts connected together or constituting parts of a single scheme or plan, they may be joined for trial. See Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983 ); Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6 (1981); Rubio v. State, 18 Ark. App. 277, 715 S.W.2d 214 (1986). There are circumstances under which separate crimes committed upon different individuals close in time may constitute a single scheme or plan within the meaning of Ark. R. Crim. P. 22.2. James v. State, 11 Ark. App. 1, 665 S.W.2d 883 (1984). The decision to join or sever offenses is within the discretion of the trial court, and we will not reverse absent an abuse of discretion. Rubio v. State, supra.
In Starks v. State, 33 Ark. App. 165, 804 S.W.2d 728 (1991), the appellant had been charged with one count of rape and one count of incest, both committed on his minor stepdaughter over a two year period. The charge of rape was reduced at trial to sexual abuse in the first degree and appellant was convicted of both charges. On appeal we affirmed the trial court’s denial of severance and stated that there was an “adequate indication that the two offenses were part of a single scheme or plan.” 33 Ark. App. at 167.
In James v. State, supra, the appellant was accused of engaging in sexual activity with his seven-year-old daughter and his fifteen-year-old adopted daughter on the same day. We cited Ruiz v. State, supra, for the holding that there are circumstances under which separate crimes committed upon different individuals close in time may constitute a single scheme or plan within the meaning of Ark. R. Crim. P. 22.2(a). 11 Ark. App. at 5.
Appellant accurately points out that the information in this case alleged two offenses against two separate victims over a period of eighteen months. He argues that rape is not a continuing offense, but is a single event, and that two instances of rape can result in two convictions. Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986). Appellant takes the position that since the charges against him did not result from one criminal episode and it was charged that there were two separate victims, it was unfair to require him to be tried on both charges at the same time.
Appellee responds that these offenses comprised a common scheme: the victims are sisters, step-daughters of the appellant; the sexual conduct all occurred in the home of the appellant and the victims; and that contact continued over a period of eighteen months.
Under these circumstances we cannot say that the trial court abused its discretion in refusing to sever the offenses. These acts constituted a continuing course of conduct which, in effect, constituted a single scheme or plan.
Appellant’s next argument is that the court erred in refusing to declare a mistrial because a prosecution witness, the girls’ mother, remained in the courtroom after the witnesses had been excluded under the “Rule.” Arkansas Rule of Evidence 615 provides that at the request of a party the witnesses shall be excluded from the courtroom so they cannot hear the testimony of the other witnesses. Appellant argues that because the mother of the victims remained in the courtroom and heard the testimony of her daughters before she testified, “error should have been presumed and the mistrial should have been granted.” We cannot agree.
A mistrial is a drastic remedy and should be granted only when justice cannot be accomplished by continuing the trial. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986); Williams v. State, 17 Ark. App. 173, 705 S.W.2d 896 (1986). The granting of a mistrial rests within the discretion of the trial judge. Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985); Clinkscale v. State, 13 Ark. App. 149, 680 S.W.2d 728 (1984).
Arkansas Rule of Evidence 616 provides:
Notwithstanding any provision to the contrary, in any criminal prosecution, the victim of a crime, and in the event that the victim of a crime is a minor child under eighteen (18) years of age, that minor victim’s parents... shall have the right to be present during any hearing, deposition, or trial of the offense [Emphasis added.]
The judge did not commit error by refusing to declare a mistrial.
Appellant also argues that the trial court erred in holding that one of the victims was competent to testify. At the time of the trial this girl was nine years old. In ruling on one of the State’s pretrial motions the judge said he found the girl to be “of average maturity and rather articulate . . . reliable and credible.”
Arkansas Rule of Evidence 601 provides that “every person is competent to be a witness except as otherwise provided in these rules.” The question of the competency of a witness to testify is a matter lying within the sound discretion of the trial court and, in the absence of clear abuse, the appellate court will not reverse on appeal. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). In Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980), the Arkansas Supreme Court stated:
Appellant correctly perceives that the common law tests of competency of a witness in a criminal case in Arkansas have been clearly established. They are: the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; an understanding of the consequences of false swearing; and the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the fact finder a reasonable statement of what was seen, felt or heard.
271 Ark. at 10. See also Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982).
The issue of competency of a witness is one in which the trial judge’s evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony. Clifton v. State, 289 Ark. 63, 709 S.W.2d 63 (1986).
As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts, we will not hold there has been a manifest error or abuse of discretion in allowing the testimony.
289 Ark. at 65. In a child rape case, the matter of the competency of the child is primarily for the judge to decide, as he is better able than this court to judge the child’s intelligence and understanding of the necessity for telling the truth. Jackson, supra. See also, Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949).
Appellant argues, however, that because of several inconsistencies in the girl’s testimony the court should have found her incompetent to testify. Appellant points out three particular instances in which the girl’s trial testimony varied somewhat from her testimony at the motion hearings; however, it is the jury’s job to resolve any contradictions, conflicts, or inconsistencies in a witness’s testimony, Franklin v. State, 308 Ark. 539, 825 S.W.2d 263 (1992); Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990).
Appellant’s next argument is based on the trial court’s denial of his request for a transcript of his previous trial, which ended in mistrial. On February 11,1991, appellant filed a motion requesting the transcript and a hearing was held on the motion on February 15. The prosecutor argued that if the court granted appellant’s motion, it would further delay the trial, and the court denied the motion.
Appellant relies on Britt v. North Carolina, 404 U.S. 226 (1971), in which the United States Supreme Court held that “the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal.” 404 U.S. at 227. The Court also stated:
In prior cases involving an indigent defendant’s claim of right to a free transcript, this Court has identified two factors that are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.
Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case. . . . [E]ven in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.
404 U.S. at 227-28. Nevertheless, the United States Supreme Court affirmed the denial of the transcript to Britt because the second trial was before the same judge, with the same counsel and the same court reporter, and the two trials were only a month apart. Moreover, the Court stated that the trials took place in a small town where the court reporter was a good friend of all the local lawyers and would have read back to counsel his notes of the mistrial, well in advance of the second trial, if counsel had simply made an informal request. 404 U.S. at 228-29.
Appellant argues that, in his case, the judge presiding at the trial which resulted in a mistrial was not the same judge who presided over the trial from which this appeal is brought; there was a lapse of four months between the mistrial and the subsequent trial; and the court denied his motion on the basis of lack of benefit to the appellant which, he argues, was flatly rejected in Britt. We note, however, that the appellant had the same counsel at both trials; the trials were only four months apart; defense counsel had ample opportunity to cross examine and impeach the witnesses; and there is no evidence that appellant suffered any prejudice in not having the transcript of the mistrial. Furthermore, appellant could have requested the transcript immediately following the mistrial without causing any delay in the retrial. Since he waited until five days before the retrial was to begin to request the transcript, we cannot say it was error to refuse the request for the transcript.
Affirmed.
Cooper and Jennings, JJ., agree. | [
-80,
-7,
-51,
-4,
-120,
65,
50,
28,
66,
-29,
98,
83,
-81,
-42,
5,
123,
51,
125,
92,
105,
-48,
-74,
3,
65,
-22,
-13,
-69,
86,
-65,
-51,
-20,
-66,
72,
98,
-61,
81,
102,
-62,
-59,
80,
-114,
-115,
-86,
100,
82,
6,
36,
124,
20,
15,
113,
-98,
-109,
43,
20,
-49,
106,
40,
75,
61,
64,
56,
-38,
7,
-17,
20,
-93,
-92,
-101,
7,
112,
61,
-36,
57,
0,
120,
114,
-108,
-126,
117,
77,
25,
44,
114,
98,
33,
5,
-50,
-88,
-96,
62,
47,
-99,
-89,
-40,
73,
67,
13,
-74,
-44,
98,
86,
12,
-4,
114,
68,
112,
108,
-128,
-49,
-108,
-109,
108,
60,
-42,
-15,
-29,
99,
48,
53,
-50,
-10,
84,
71,
89,
-37,
-106,
-43
] |
John E. Jennings, Judge.
Terry Stevens was charged by information with possession of drug paraphernalia and possession of methamphetamine. The State also alleged that he had at least four prior felony convictions and was subject to extended imprisonment as an habitual offender under Ark. Code Ann. 5-4-501 (1987). The jury found Stevens guilty of possession of drug paraphernalia and he was sentenced by the court to ten years imprisonment.
On appeal three issues are raised: (1) that the court erred in not granting appellant’s motion to suppress; (2) that the court erred in denying a motion for mistrial made during closing argument; and (3) that the court erred in admitting evidence of some of the appellant’s prior convictions. We find no error and affirm.
On June 4, 1990, Jerry Roller, a Fort Smith police officer, saw the appellant run a red light. Roller pursued Stevens at speeds approaching eighty miles an hour and saw Stevens run several stop signs. When he was finally stopped, the appellant got out of his car, locked it, tossed the keys inside, and shut the door. The vehicle was a Chevrolet Chevette hatchback. The appellant was immediately placed under arrest for DWI and fleeing an officer. Police officers promptly unlocked the car and searched it. Drug paraphernalia was found in an athletic bag located in the hatchback area.
At the hearing on the motion to suppress, Officer Roller testified that it was the normal practice of the department to search the vehicle when the driver is placed under arrest. Roller also testified that this was “an inventory type search” and that the department had no policy whatever in regard to the opening of closed containers.
Stevens argues that this was an inventory search and that because the department had no policy regulating opening of closed containers the search was not a reasonable one within the meaning of the Fourth Amendment to the United States Constitution. Florida v. Wells, 495 U.S. 1 (1990); see also Kirk v. State, 38 Ark. App. 159, 832 S.W.2d 271 (1992). The State, on the other hand, contends that the case is governed by New York v. Belton, 453 U.S. 454 (1981), because it was a search of an automobile incident to a lawful custodial arrest. We agree with the State.
All searches conducted without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. Coolidge v. New Hampshire, 403 U.S. 443 (1971); Johnson v. State, 291 Ark. 260, 724 S.W.2d 160 (1987), cert. denied 484 U.S. 830. In New York v. Belton, 453 U.S. 454 (1981), the defendant was stopped for speeding, the officer smelled marijuana, and the defendant was arrested for possession. The officer then searched the passenger compartment of the car, found a leather jacket, unzipped one of the pockets, and discovered cocaine. In rejecting the defendant’s contention that the Fourth Amendment had been violated the Court said:
[ W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment. . . . Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.
In the case at bar, there is no question but that the defendant was lawfully arrested and that the search was a contemporaneous incident to the arrest. Although the Court in Belton stated that its holding did not extend to the trunk of a car, courts which have considered the issue have held that the “hatchback” area of a vehicle is within the “passenger compartment” of the car, as that phrase was used in Belton. United States v. Russell, 670 F.2d 323 (D.C. Cir. 1982), cert. denied 457 U.S. 1108; State v. Delossantos, 211 Conn. 258, 559 A.2d 164 (1989), cert. denied 110 S.C. 188. See also 3 Wayne R. LaFave, Search and Seizure §7.1(c) at 16 (2d ed. 1987 &Supp. 1992). We agree with the conclusions of the courts in Russell and Delossantos.
We do not think it determinative that the officer described the search as an “inventory search”. A search that is justifiable as incident to a lawful custodial arrest is made no less so by the officer’s description of it as an inventory. We find no error in the court’s denial of the motion to suppress.
During closing argument, the appellant’s lawyer said:
The officer saw this car only for a matter of minutes. The testimony did show that it was Terry Stevens’ car, but when you consider the evidence in light of your common sense, think — think how it works. A lot of times you know how it is in a household situation. Everyone doesn’t just have his or her own car and nobody else rides in it. A lot of times family members use cars to go somewhere. Maybe they borrow the car for a day or two. There’s a lot of situations where more than one person uses a vehicle. I don’t think you can say just because somebody was seen driving a car for just a few minutes that that proves that he knew everything that was in the car.
He then discussed for the jury the appellant’s right to refuse to testify. On rebuttal the prosecuting attorney said:
He has raised the specter that maybe it is not the defendant’s. Well, whose is it? If this bag belonged to somebody else, why isn’t anybody in here testifying that they had seen somebody else with this bag or that it is their bag? I can understand why they wouldn’t come in and say it’s their bag, but. . .
At this point defense counsel was permitted to approach the bench. He argued that the prosecutor’s statement was a reference to the defendant’s failure to testify and moved for a mistrial. The court denied the motion.
The crux of appellant’s argument is that the prosecutor’s statement constituted a veiled reference to his failure to testify. See Bailey v. State, 287 Ark. 183, 697 S.W.2d 110 (1985). In Bailey the supreme court held that the trial judge should have granted a mistrial when the prosecutor said, in closing:
The only thing that we’ve heard here today about which occurred in that room is from Doris Watson. She’s the only person. These two ladies that were called, they weren’t in that room.
In Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978), the court reversed for failure to grant a mistrial when the prosecutor said: “To convict him, you don’t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration?”
The statement made in the case at bar does not fit within the purview of the decisions in Bailey and Adams. In Bailey the court noted that the Adams court had distinguished remarks which seemed to refer to the defendant’s failure to personally dispute the State’s case from remarks relating to the failure of the defense to present any witness or evidence to dispute the State’s case. In the case at bar the defendant suggested in closing to the jury that the athletic bag may have belonged to a family member. On rebuttal, the State rhetorically asked, in effect, why that family member had not come forward to testify. We do not think that the statement can be characterized as a veiled reference to the defendant’s failure to testify.
Finally, appellant contends that the trial court erred in admitting evidence of prior convictions in which he contends there was “no finding of guilt,” relying on English v. State, 274 Ark. 304, 626 S.W.2d 191 (1981). In English the court held that a “court probation” proceeding did not qualify as a previous conviction for purposes of the habitual offender act. Citing Cantrell v. State, 258 Ark. 833, 529 S.W.2d 136 (1975), the court described “court probation” as one in which there is “a formal refusal to accept [the defendant’s] guilty plea.” The evidence of the three prior offenses in issue here was a “Statement of the Court Respecting Statutory Probation” and docket sheets in each case showing the entry of a plea of nolo contendere. Each docket sheet indicated that the defendant was placed on five years statutory probation. There is no indication in any of the documents that the court refused to accept the defendant’s plea, formally or otherwise. We conclude that Stevens’ probation was not the type of court probation discussed in English, supra. See Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982).
Affirmed.
Cooper and Rogers, JJ., agree.
New York v. Belton, 453 U.S. at 461, footnote 4. | [
-80,
-18,
-4,
62,
43,
65,
58,
24,
82,
-65,
-12,
19,
-91,
67,
5,
49,
-21,
127,
116,
-23,
-37,
-73,
7,
-30,
66,
-77,
121,
-43,
55,
75,
44,
-12,
12,
112,
-30,
-43,
36,
72,
-25,
88,
-50,
1,
56,
115,
66,
2,
40,
34,
1,
15,
49,
31,
-26,
14,
24,
-53,
-51,
60,
75,
-66,
72,
-37,
-104,
31,
-1,
54,
-77,
33,
-65,
5,
-40,
60,
-100,
49,
16,
106,
115,
-90,
-118,
116,
109,
-39,
-92,
96,
98,
8,
25,
-52,
44,
-120,
-122,
-81,
-113,
-122,
26,
105,
105,
5,
-98,
-75,
110,
17,
10,
-6,
123,
93,
117,
108,
3,
-50,
-76,
-111,
13,
49,
6,
123,
-5,
3,
48,
116,
-51,
-30,
92,
85,
113,
-109,
-57,
-106
] |
James R. Cooper, Judge.
The appellant in this workers’ compensation case sustained a back injury arising out of and in the course of her employment with the appellee, Darling Store Fixtures, on February 26,1987. She was treated by back surgery on April 28, 1987, but with poor results. Subsequently, the appellant filed a claim for benefits asserting that she was totally disabled. After a hearing, the administrative law judge found that the appellant was totally disabled, but nevertheless awarded the appellant only a sum equal to 65% loss of use of the body as a whole after concluding that a portion of the appellant’s total disability should be apportioned to her preexisting conditions of diabetes and obesity. On de novo review, the Workers’ Compensation Commission conceded that the law judge had erroneously applied apportionment to this case, but arrived at the same result reached by the law judge by finding that the appellant had failed to prove by a preponderance of the evidence that she was permanently and totally disabled. From that decision, comes this appeal.
For reversal, the appellant contends that the Commission’s decision was contrary to the evidence and erroneously employed a theory of apportionment. We agree, and we reverse.
Only a brief recitation of the facts is necessary for an understanding of the issue presented by the appellant. Prior to her injury, the appellant was obese and had been diagnosed as a diabetic. Neither condition required treatment or caused any disability until after the appellant injured her back at work on February 26, 1987. The appellant submitted to back surgery approximately two months later, but poor results were obtained.
Following surgery, the appellant’s diabetes worsened. Further back surgery was suggested, but the surgeon was unwilling to attempt the procedure unless the appellant lost a significant amount of weight. Twice, the appellant attempted liquid diets under medical supervision, but those diets exacerbated her diabetic condition and were discontinued. Subsequently, she attempted a more conventional diet but met with little success.
In cases such as the case at bar, where the Commission’s denial of relief is based on the claimant’s failure to prove entitlement by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Williams v. Arkansas Oak Flooring Co., 267 Ark. 810, 590 S.W.2d 328 (Ark. App. 1979). However, no substantial basis for denial of permanent total disability benefits is based on the finding that the appellant’s disability has been worsened by her diabetes and obesity, which in turn have been exacerbated by the appellant’s failure to follow the various diets prescribed for her. The commission concluded that the appellant’s diabetic problems were not casually related to her injury, and that the appellee was not responsible for that portion of the claimant’s permanent disability which is casually related to her diabetic condition.
Clearly, there was evidence at the hearing to show that the appellant’s diabetic condition had become severe and disabling since her compensable injury. She testified that she experiences dizziness and blackouts, and that she would be unable to hold down a job because of those symptoms.
Apparently, the Commission reasoned that the appellant’s work-related injury could not be totally disabling because her diabetic condition would prevent her from performing any job regardless of her back problem. We find this reasoning to be fallacious. All of the medical evidence is in agreement in concluding that the appellant is permanently and totally disabled following her back injury, and we find nothing in the record to support the Commission’s conclusions that the appellant’s disability would be less than total were it not for the flare up of her diabetic condition. On this record, we find no substantial basis for the Commission’s conclusion that the appellant failed to prove entitlement, and we reverse.
Additionally, we note that the Commission considered the appellant’s “lack of motivation to lose weight” as a factor in determining the extent of her disability. Apparently, this is in reference to the appellee’s contention at the hearing, based on Ark. Code Ann. § 11-9-512 (1987), that the appellant’s failure to lose weight was tantamount to a refusal to submit to surgery. We find that, under the facts of this case, the Commission erred in considering the appellant’s failure to lose weight in fixing the amount of compensation. It is clear from the record that the’ appellant was obese prior to her injury, and that she made three attempts to lose weight upon the advice of a physician who believed that she might benefit from additional surgery but would not perform the procedure unless the appellant lost a substantial amount of weight. Thus, we are not presented with the appellant’s refusal to submit to a recommended surgical procedure; the appellant asserts that she is willing to undergo the procedure if the surgeon will perform it, and her willingness to do so is uncontroverted. Instead, the Commission regarded the appellant’s failure to lose weight as the equivalent of an unreasonable refusal to submit to surgery. We hold that, under these facts, the Commission erred in so doing. Professor Larson has summarized the law in this area as follows:
When the treatment prescribed takes the form of exercise or wearing a brace, or undergoing an alcohol detoxification program, obviously there is no element of risk, and unreasonable refusal to follow medical instructions will lead to a loss of benefits for any disability attributable to this refusal. But when the prescribed treatment involves weight reduction, although in principle the cases should be assimilated to the exercise cases, courts have been less stern, perhaps because almost everyone has some personal experience of good-faith but ineffective weight-reduction efforts — and are reluctant to stigmatize these all-too-human failures as “willful refusal.”
1 A. Larson, The Law of Workmen’s Compensation § 13.22(d). In the case at bar, the record is devoid of facts supporting a conclusion that the appellant’s weight reduction efforts were not made in good faith, and we hold that the Commission erred in concluding that her failure to lose weight was tantamount to an unreasonable refusal of surgery.
Reversed and remanded.
Jennings and Rogers, JJ., agree. | [
-112,
-22,
-39,
-20,
10,
65,
51,
54,
3,
-89,
117,
19,
-17,
-3,
93,
111,
-29,
93,
85,
119,
-41,
-93,
19,
40,
-37,
-13,
123,
71,
-15,
111,
-12,
21,
77,
56,
-118,
-59,
-26,
-64,
-57,
92,
-56,
-105,
-101,
108,
121,
-128,
56,
110,
-40,
71,
17,
-114,
-126,
44,
17,
79,
40,
40,
75,
56,
80,
-79,
-120,
5,
127,
17,
32,
36,
-102,
-17,
-38,
26,
-102,
-80,
32,
-24,
115,
-74,
-126,
52,
123,
-71,
-124,
96,
99,
51,
13,
-27,
80,
-68,
47,
-100,
-99,
-90,
-102,
24,
91,
11,
-108,
-68,
126,
68,
28,
124,
-1,
-35,
95,
44,
-53,
-122,
22,
-77,
-49,
52,
-36,
-125,
-17,
-113,
48,
49,
-52,
-14,
93,
70,
51,
-101,
-10,
-102
] |
John E. Jennings, Judge.
The claimant in this workers’ compensation case, Teryl Finley, suffered an admittedly compen-sable injury on December 10, 1988, when she slipped and fell in the restaurant of her employer, Taco Bell. Finley slipped on a piece of cardboard and fell backwards, striking her head on the concrete floor. She was paid temporary total disability through December 31, 1988.
Finley was seen by both Dr. Robert White and Dr. Robert Abraham. After a hearing, the administrative law judge found that Finley was entitled to 8 % permanent partial disability and that Taco Bell was responsible for the payment of Dr. Abraham’s services. The Commission made the same findings and Taco Bell appeals. We affirm.
Appellant’s argument that the award of permanent partial disability is not supported by substantial evidence is based on Ark. Code Ann. § ll-9-704(c) (Supp. 1991) which provides, in part, “Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” The question for decision is whether the Commission’s determination of physical impairment in the case at bar is supported by “objective physical findings”. In support of its argument, appellant emphasizes a number of facts: Dr. White expressed his opinion that Finley would have no permanent disability; a CT scan showed no abnormality in the lumbar spine; various office examinations by Dr. Abraham showed no limitation of the range of motion in the claimant’s low back; and a private investigator retained by the appellant testified that he saw Finley run up and down the steps to her apartment.
In the case at bar, Dr. Abraham’s assessment of Finley’s permanent disability was based on an American Medical Association publication, “Guides to the Evaluation of Permanent Impairment”, and on range of motion tests observed during his examination of the claimant. The tests included the measurement of flexion, extension, and lateral flexion. The word “objective” means “based on observable phenomena”. The American Heritage Dictionary 857 (2d College ed. 1982). That dictionary also gives a specific medical definition: “Indicating a symptom or condition perceived as a sign of disease by someone other than the person afflicted.” Under either definition, in our view, observations made by a doctor as a result of range of motion tests qualify as “objective physical findings”.
It is reasonably clear that in making its determination of physical impairment, the Commission also considered the claimant’s testimony about her symptoms, including pain, and the effect of activity on those symptoms. Such consideration in the determination of permanent disability is not prohibited by Ark. Code Ann. § 1 l-9-704(c), so long as the record contains “objective and measurable” findings to support the Commission’s ultimate determination.
Appellant also contends that the Commission erred in not holding that Dr. Abraham’s treatment was unauthorized. However, Ark. Code Ann. § 11-9-514 (1987) provides that the change of physician rules do not apply when the employee is not furnished a copy of the notice concerning change of physician. Here the Commission found that the A-29 form was not received by the claimant until after she had begun treatment with Dr. Abraham, and this finding is supported by substantial evidence.
For the reasons stated the decision of the Commission is affirmed.
Affirmed. | [
-47,
-7,
-35,
-2,
10,
96,
58,
-70,
97,
-109,
55,
17,
-17,
-13,
-99,
59,
-31,
85,
-63,
105,
-33,
-93,
51,
1,
-12,
-73,
-6,
87,
49,
110,
102,
-36,
79,
48,
-126,
-59,
-26,
73,
-7,
90,
-56,
-97,
-85,
-23,
25,
-94,
56,
110,
-120,
79,
-111,
-109,
71,
40,
28,
-57,
104,
42,
75,
52,
96,
-24,
-54,
13,
105,
0,
-95,
4,
62,
103,
-38,
24,
24,
-71,
8,
-22,
17,
-74,
-46,
116,
91,
-71,
-108,
97,
98,
32,
29,
-19,
-24,
-72,
95,
28,
-113,
-92,
-109,
25,
73,
47,
-107,
-67,
124,
4,
14,
124,
-11,
-43,
31,
108,
-101,
-125,
20,
-79,
77,
104,
94,
-93,
-17,
-89,
-112,
101,
-36,
-78,
92,
4,
111,
-101,
-34,
-110
] |
Harrison, J.
A purchaser at the sale under the execu-i. tion, which the plaintiff by his complaint sought to enjoin, would as well as the plaintiff claim title from Panley ; and us the sheriff’s deed to him would contain such prima, facie evidence of title in him, that, to avoid it, proof of extraneous facts would be required, it would necessarily have the effect to cast a cloud upon the plaintiff’s title. McCullough v. Hollingsworth, 27 Ind., 115; Pixley v. Huggins, 15 Cal., 127; England v. Lewis, 25 Cal., 337; Downing v. Mann, 43 Ala,, 266; Key City Gas Light Co. v. Munsell, 19 Iowa, 305; Freeman on Executions, Sec. 438.
"The true test, as we conceive,” say the Supreme Court of California, in the case of Bixley v. Huggins, supra, “by which the question whether a deed would cast a cloud upon the title of plaintiff may be determined, is this ; Would the-owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to-offer evidence to defeat a recovery? If such proof would be necessary, the cloud would exist; if the proof would be-unnecessary, no shade would be cast by the presence of the-deed.”
And so as the court would, to remove the cloud it cast,. have set aside the deed which the sheriff might have made to the purchaser, it will interpose to prevent the sale from-which a conveyance creating such a cloud must result. Bixley v. Huggins, supra; Pettit v. Shepherd; 5 Paige 501; Bisp. Equity, Sec. 425.
The sale was therefore very properly enjoined.
But as toj the validity of the lien reserved in the deed Mrs. Comer to Panley, for the payment of the notes-given in the purchase of the land from her, there can be no question. It is well settled that a lien may, by the express of the owner, be created on real or personal estate, which equity will enforce, not only against him, but also against any one who afterwards takes the estate with notice of it. Such a lien is in the nature of a trust which equity will compel the holder of the legal title to perform. Pinch v. Anthony, 8 Allen, 536; Champion v. Brown, 6 John., Ch. 398; 2 Sto. Eq. Juris., See. 1231.
And such a lien, according to the well settled doctrine of equity, passes by an assignment of the debt it was created to-secure. Section 564 of Gantt’s Digest, which was enacted since the execution of the notes, is but an affirmance of the doctrine.
Ciiiee Justice Waite, in delivering the opinion of the Supreme Court of the United States in the case of Ober v. Gallagher, 3 Otto, 199, which went up to that court from the Circuit Court of the United States for the Eastern District of Arkansas, says:
“It is undoubtedly true, that in many of the States, the implied lien which equity raises in favor of the vendor of real property to secure the payment of the purchase money, ■does not pass by an assignment of the debt; but here the lien was not left to implication; it was expressly reserved. In fact, it is more than a lien. In equity it is a mortgage, ■so made by express contract. The acceptance by Thompson of the deed, containing the reservation, amounts to an express agreement on his part that the land should be held ■as security for the payment of what he owed on account of the purchase money. This created an equitable mortgage; and such a security passes by assignment of the debt it ■secures.”
The cases of Sheppard v. Thomas, 26 Ark., 617, and Jones v. Doss, 27 Ark., 518, both decided by a *' •court, in which the assignability of such a lien was denied, were, in our opinion, not correctly decided, and were tually, if not directly and expressly, overruled in Campbell v. Rankin, 28 Ark., 401.
As the plaintiff derived his title from Panley, he had, when he purchased, constructive notice at least of the lien ; but it was alleged in the answer that he had actual notice. Such facts were, therefore, stated in the answer as showed a right in the defendant, had all necessary parties been before the ■court, to the relief prayed against the plaintiff.
But it is a general rule that all persons who are materially interested in the subject matter of the litigation should made parties, either plaintiffs or defendants. Mayes v. Hendry, 33 Ark., 240; Brodie v. Skelton, 11 Ark., 120; Porter v. Clements, 3 Ark., 364; Sto. Eq. Plead., 72.
It was not shown that the other note given in the purchase of the land, and secured by the lien reserved, had been paid, and though overdue, we are not at liberty to> presume such to have been the case. If paid, the answer-should have so stated, or if still unpaid, the holder of it, who was equally with the defendant interested in the security, should have been made a party.
Pauley, who was personally bound and primarily liable for the debt, and against whom, in ease a sale of the land was decreed, the defendant would also be entitled to a decree, would also have been a proper party for that purpose, though not a necessary or indispensable one, for the foreclosure. But the holder of the other note was a necessary party, without' whose presence before the court there could be no determination of the controversy between those who were before it, or a full and complete decree touching their rights, be rendered.
As, however, a proper case was made in the answer for relief, and the want of parties was not one of the grounds of the demurrer to it, the demurrer should have been overruled ; but the answer should have been amended, and the proper parties brought in.
The decree, so far as respects the complaint, and perpetually enjoins the sale of the land under defendant’s judgment, is affirmed. But as to the dismissal of the defendant’s counter-claim, it is reversed, and the cause is remanded to the court below, with instructions to overrule the demurrer to the answer, and to allow the defendants, if so advised,, to amend the same, and make proper parties thereto, as above indicated, and for further proceedings. | [
-14,
108,
-40,
45,
106,
96,
10,
-72,
-23,
35,
-93,
-45,
127,
66,
16,
53,
-26,
109,
-27,
120,
84,
-94,
59,
1,
-46,
-109,
89,
-35,
-65,
76,
110,
-42,
76,
40,
-62,
-43,
98,
-62,
-115,
90,
-114,
-121,
11,
100,
-8,
-48,
52,
43,
84,
73,
113,
-98,
-13,
44,
57,
71,
9,
46,
43,
41,
-64,
56,
-97,
21,
123,
6,
51,
100,
-104,
-21,
-54,
110,
-104,
57,
1,
-22,
27,
-74,
-110,
-12,
1,
27,
24,
102,
-18,
32,
69,
-17,
-64,
-100,
14,
126,
13,
-90,
81,
88,
11,
105,
-66,
-99,
108,
0,
-58,
118,
-22,
84,
28,
104,
50,
-53,
-42,
-93,
13,
126,
-104,
3,
-61,
39,
48,
80,
-49,
-5,
92,
99,
25,
27,
-113,
-10
] |
Josehpine Linker Hart, Judge.
Misty Rhine’s parental rights to her son A.I. were terminated by a Washington County Circuit Court order entered on October 27, 2005. In this appeal, she asserts that the circuit court abused its discretion in denying a continuance to allow her to execute a consent and waiver so that her mother could adopt A.I. We agree that, under the circumstances of this case, such a refusal amounted to an abuse of discretion. Therefore, we reverse and remand.
The facts leading to the termination of Rhine’s parental rights are set forth in our opinion in Ivers v. Arkansas Department of Human Services, 98 Ark. App. 57, 250 S.W.3d 279 (2007), where we addressed the termination of the parental rights ofboth of A.i.’s parents.
At the outset of the termination hearing, Rhine sought a continuance so that she could execute a consent so that her mother, Helen King, could adopt A.I. The following colloquy took place.
The Court: So, we’re here today on the [A.I.] Case set for a Dependent-Neglect Termination. Call your first, Ms. Mcllroy.
Ms. Segers [attorney for Rhine]: Your Honor,may I ask for everyone to approach?
The Court: Yes.
Ms. Segers: Your Honor, my client has informed me this morning that she is willing to sign a consent of adoption, and I did not have one drawn up because I did not know that. And I understand Mr. Ivers is, too. They would like to have the baby placed with Ms. King, the grandmother who has the step-child — I mean the —
Mr. Casto [attorney for Ivers]: Sibling.
Ms. Segers: — the sibling. And I believe Ms. King is in agreement with that, so if we — I just thought I would bring it to the Court’s attention that they will sign a consent, and it could occur ten days from now if we can get the consent, and the termination would be automatic at that point in time and have the baby, if possible, placed with its sibling with Ms. King, who is in agreement.
The Court: All right, so you’re asking for a continuance, then, today, on the Termination Hearing?
Ms. Segers: Yes.
The Court: Okay, and, Ms. Warren, do you have any objection?
Ms. Warren [attorney ad litem]: I think we need to have the Termination by October 12th unless — the Petition, I believe, was filed on July 12th.
The Court: Okay, Ms. McIlroy?
Ms. McIlroy [attorney for DHS]: As long as we can do it within that time frame.
The Court: Well, you’re going to be out for training.
Ms. McIlroy: I know. Not until the 19th.
The Court: So, I think we’re just going to press on today because — did you say the 17th is when?
Ms. McIlroy: The 12th.
Mr Casto: 12th, Your Honor.
Ms. Warren: July 12th.
The Court: You’re not going to be here next week, is that correct?
Ms. McIlroy: I’ll be on vacation.
The Court: Right.
Ms. McIlroy: Susan will be here, yeah.
The Court: No Melinda McIlroy all week, and it’s a Termination, so I’m not going to put that on Ms. Hall. And then the next week —
Ms. Warren: We’re at October 12th.We can go one day past for as —
The Court: Well, it’s not any better than today, so we’re going to just press on today. I deny the —
Ms. McIlroy: You can go anytime for good cause.
Ms. Warren: That’s true.
The Court: We’re going to press on today. I’ll deny the motion for a continuance. Call your first, Ms. McIlroy.
Arkansas Code Annotated section 9-27-341 (d) requires that termination hearings shall be completed within ninety days of the date of the petition unless continued for good cause. In addressing the continuance, the court did not consider the effect a continuance would have on obtaining permanency for A.I., who was in his third foster home. A continuance to allow for the adoption of A.I. by King would have accomplished permanency for A.I. quicker than could be available if the court and DHS proceeded with an ordinary termination case because the rights of the father would still have had to be terminated. According to the colloquy, the father was willing to consent to the adoption. Further, the adoption would have allowed A.I. to be placed with his sibling whom King has already adopted, a factor sanctioned by our supreme court. See In re Adoption of Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989) (upholding a finding that it was in the child’s best interest to grant adoption to parents who had previously adopted child’s two siblings). In Ivers, we noted our disagreement with the idea that the termination of parental rights would lead to greater stability for A.I., especially where placement with King was the primary option under consideration at that time. 98 Ark. App. at 68, 250 S.W.3d at 286. We also noted that this would be a less extreme remedy than would the termination of Rhine’s parental rights. Id. at 69, 250 S.W.3d at 287.
The consideration of factors such as the attorney for DHS being on vacation and that there was an upcoming training event created a false dilemma because the circuit court clearly had the discretion to go beyond the ninety-day limit in section 9-27-341 (d) upon a finding of good cause. It cannot be said that providing permanency for A.I. in a more timely manner and the keeping of the siblings together is not good cause for exceeding the ninety-day period in section 9-27-341 (d) by only a few days at most. Although concern with accommodating the attorney for DHS and her vacation are important, those considerations pale in comparison to the serious consequences at stake for Rhine and A.I. Further, the court did not exercise its discretion under the statute, even after the attorney ad litem and DHS attorney pointed it out to the court. Under these circumstances, we hold that the circuit court abused its discretion in denying Rhine’s motion for a continuance. We reverse and remand for further orders consistent with this opinion.
Reversed and remanded.
Bird and Marshall, JJ., agree.
In Ivers, we denied Rhine’s counsel’s motion to withdraw and ordered rebriefing on the merits. On September 5,2007, we again denied Rhine’s counsel’s motion to withdraw and again ordered rebriefing on the merits. Rhine v. Arkansas Dep’t of Human Servs., No. CA06-137 (Ark. App. Sept. 5, 2007). Counsel has now filed a brief complying with our earlier orders. | [
-16,
-19,
-43,
44,
26,
-63,
30,
16,
82,
-85,
103,
115,
-81,
-2,
20,
121,
-117,
47,
80,
121,
83,
-77,
119,
1,
86,
-46,
-112,
-41,
-77,
79,
117,
84,
8,
112,
-118,
-35,
98,
-56,
-59,
-48,
-126,
3,
-87,
-20,
80,
-61,
44,
123,
18,
14,
53,
-66,
-125,
46,
57,
-21,
44,
76,
91,
61,
30,
56,
-101,
23,
-34,
2,
-95,
36,
-72,
-91,
104,
107,
-120,
56,
9,
-23,
114,
-74,
-122,
116,
67,
25,
-115,
115,
-17,
-96,
76,
-9,
-68,
-120,
46,
12,
-99,
-122,
-104,
88,
2,
15,
-65,
-76,
92,
16,
15,
-8,
107,
14,
95,
-20,
0,
-113,
-46,
-111,
-99,
-104,
12,
3,
-29,
67,
117,
117,
-61,
-20,
116,
-63,
59,
-110,
-98,
-13
] |
Wendell L. Griffen, Judge.
Emilia Duke appeals from an order setting aside a deed granting her one acre of property belonging to her late stepfather, Calvin Leeroy Shinpaugh (Mr. Shinpaugh). We hold that the trial court did not err in applying the presumption of undue influence because appellant and Mr. Shinpaugh were in a confidential relationship. Nonetheless, we hold that the trial court erred in 1) excluding a neighbor’s testimony that Mr. Shinpaugh intended to give one acre of land to appellant before he died, 2) finding the power of attorney by which appellant conveyed the land to herself by a quitclaim deed was the product of undue influence, and 3) finding that, in making the quitclaim conveyance to herself, appellant overreached the powers granted to her as Mr. Shinpaugh’s power of attorney. Accordingly, we affirm in part, but we reverse the trial court’s order setting aside the deed, reverse the order ejecting appellant from the entire parcel ofland, and remand for a new trial.
I. Facts
Mr. Shinpaugh and appellant’s mother, Frances Shinpaugh, owned 2.9 acres of property in Fayetteville, Arkansas, as tenants by the entirety; their home is located on the northernmost acre. Pursuant to a written agreement and a power-of-attorney form executed by Mr. Shinpaugh in her favor, appellant conveyed the middle acre of this property to herself shortly before Mr. Shin-paugh died. Appellees are Joseph Shinpaugh and Rebekah Ogle, Mr. Shinpaugh’s children. Acting as administrators of his estate, appellees filed suit to have the deed set aside and to have appellant removed from the property.
Appellant began living with the Shinpaughs in 1997 due to her mother’s poor health. It is undisputed that appellant took care of Mrs. Shinpaugh from that point, and also took care of Mr. Shinpaugh after his health declined. Additionally, she performed household chores and property maintenance.
Mrs. Shinpaugh died intestate on May 15, 2005. Appellant testified that before her mother died, Mr. Shinpaugh agreed that appellant would be given one acre of their property. Ogle admitted that she spoke with Mr. Shinpaugh about giving property to appellant both before and just after Mrs. Shinpaugh’s funeral, but she maintained that her father could not decide which acre to give to appellant.
Appellant continued to live with and care for Mr. Shinpaugh after her mother’s death. A few hours after Mrs. Shinpaugh’s funeral, after Mr. Shinpaugh met privately with appellees, appellant approached him to discuss “legitimizing” her situation. Within the next few days, she and Mr. Shinpaugh drafted a document entitled “Agreement,” which purported to give her one acre of Mr. Shinpaugh’s property in recognition of her long-time assistance to the Shinpaughs. This document was typed by appellant’s nephew, Calvin Duke, on a computer belonging to John Holmberg, Mr. Shinpaugh’s long-time neighbor.
Mr. Shinpaugh was hospitalized on May 23, 2005, due to congestive heart failure. He signed the agreement the next day, on May 24, 2005, while he was still hospitalized. Ogle did not dispute that her father signed the agreement; appellant did not sign the document.
The following day, May 25, 2005, while Mr. Shinpaugh remained hospitalized, he signed a durable power of attorney in favor of appellant, that was prepared by his attorney. Appellees conceded at the hearing that Mr. Shinpaugh signed this form and further conceded that the power of attorney was valid.
After Mr. Shinpaugh’s release, appellant continued to live with and care for him. On December 14, 2005, Mr. Shinpaugh suffered a stroke; he was again hospitalized until January 27, 2006. He was thereafter taken to a rehabilitation center, where he died on March 5, 2006. Ogle admitted that her father retained his faculty to understand what was being said to him and to respond appropriately to the end of his life.
On February 8, 2006, approximately one month before Mr. Shinpaugh died, appellant deeded one acre of Mr. Shinpaugh’s property to herself, pursuant to the power of attorney. After Mr. Shinpaugh died, appellant continued to live in the Shinpaugh home but never notified appellees that she deeded the property to herself. Appellees found the deed while searching property records to discover the name of the mortgage company holding a reverse mortgage on their father’s property. They filed suit in the instant case, alleging, inter alia, that Mr. Shinpaugh was incapacitated from December 14, 2005, onward, due to his health conditions, and that appellant breached her fiduciary duty in conveying part of his property to herself. They also filed a detainer action and were granted immediate possession of the entire 2.9 acres of property.
In its written order, the trial court found that a confidential relationship existed between appellant and Mr. Shinpaugh and that the agreement was testamentary in nature, though it did not qualify as a will. However, the court made no finding that appellant procured the agreement. Further, even though appellees never challenged the validity of the power of attorney executed by Mr. Shinpaugh and conceded that the form was valid, the trial court determined that appellant failed to overcome the presumption that the agreement and power of attorney were the product of her undue influence. Finally, the court found that appellant breached her fiduciary duty and that, if the power of attorney was valid, appellant exceeded her power granted under it. Accordingly, the trial court ordered that the deed be set aside and entered a final judgment of possession in appellees’ favor of the entire 2.9 acres of property.
II. Presumption of Undue Influence
We first affirm the trial court’s determination that the presumption of undue influence arose, which appellant was required to rebut. Appellant argues that the trial court erred in finding that the agreement was not a will but yet determined that the presumption of undue influence arose.
The standard of review of a circuit court’s findings of fact after a bench trial is whether those findings are clearly erroneous. See First Nat’l Bank v. Garner, 86 Ark. App. 213, 167 S.W.3d 664 (2004). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. See id. In reviewing a trial court’s findings of fact, we give due deference to the trial judge’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. See Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996).
To be valid as a will, an instrument must be executed with testamentary intent, which is the intention to dispose of one’s property upon one’s death. See Edmundson v. Estate of Fountain, 358 Ark. 302, 189 S.W.3d 427 (2004). We affirm on this point because the agreement contained contradictory terms indicating both that it was a will and that it was not; thus, the trial court could have determined that the agreement was not a will. Moreover, regardless of the nature of the agreement, the undue influence presumption arose because the trial court determined that appellant and Mr. Shinpaugh were in a confidential relationship — a finding that appellant does not challenge on appeal. See Wesley v. Estate of Bosley, 81 Ark. App. 468, 105 S.W.3d 389 (2003).
III. Mr. Holmberg’s Testimony
Although we agree that the presumption of undue influence arose, we reverse, first, because the trial court erred in finding that the agreement was the product of undue influence without allowing Mr. Shinpaugh’s neighbor, John Holmberg, to testify that Mr. Shinpaugh told him before he died that he wanted to give appellant one acre of land. Appellees raised a hearsay objection when Mr. Holmberg testified that he was aware of the agreement and that he and Mr. Shinpaugh had discussions about it. The trial court assumed that Holmberg would testify that “He [Mr. Shin-paugh] told me he wanted to give Emilia Duke an acre.” The trial court ruled that any such testimony would be inadmissible hearsay. Appellant argued that the testimony was admissible pursuant to Ark. R. Evid. 804(b)(3) as a statement against Mr. Shinpaugh’s interest. We will not reverse a trial court’s ruling on the admission of evidence unless the trial court abused its discretion. See O’Fallon v. O’Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000).
The trial court’s exclusion of Holmberg’s testimony was an abuse of discretion because Mr. Shinpaugh’s statement, prior to his death, that he intended to give the property to appellant, was a statement against the pecuniary interest of his estate. See id. Pursuant to Rule 804(b)(3), a statement against interest is admissible if the declarant is unavailable as a witness. A statement against interest is
[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 or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true.
In O’Fallon, the trial court found that the decedent made an inter vivos gift to his son, after the court admitted testimony that the decedent stated that he “was buying” or “had bought” the vehicle for his son. The O’Fallon court affirmed the admission of this testimony under Rule 804(b)(3), as an admission against the pecuniary interest of the decedent’s estate. Similarly, here, Mr. Shinpaugh’s statement would constitute a statement against the pecuniary interest of his estate because a successful property transfer, whether testamentary or inter vivos, would reduce the body of what would be included in Mr. Shinpaugh’s estate.
Appellees unpersuasively attempt to distinguish O’Fallon on two grounds. First, they argue that any statement Mr. Shinpaugh made would be made while under appellant’s undue influence. However, whether Mr. Shinpaugh made any statement under the undue influence of appellant would go to the weight of the statement, not its admissibility. Second, they argue that the issue in O’Fallon was whether the decedent had divested himself of the title to his vehicle and that “there can be no question that Leeroy Shinpaugh did not alienate or divest himself of title to the acre of his property while under appellant’s undue influence.” To the contrary, whether Mr. Shinpaugh divested himself of title to the property when he signed the agreement is the precise issue.
More convincing is appellant’s argument that she was prejudiced by the trial court’s exclusion of Holmberg’s testimony because he was a disinterested, third-party witness whose testimony was critical to prove that Mr. Shinpaugh acted of his own accord and did not agree to convey the property to appellant due to her undue influence. See Estate of Garrett, 81 Ark. App. 212, 100 S.W.3d 72 (2003) (citing as evidence supporting a finding of no undue influence the fact that two disinterested witnesses testified that the decedent was of sound mind when he executed his will).
Here, due to the trial court’s exclusion of Mr. Holmberg’s testimony, it erroneously concluded that the agreement was the product of appellant’s undue influence without considering all of the relevant, admissible evidence that Mr. Shinpaugh agreed to give appellant the property before he died. Appellant was prejudiced by the ruling to exclude Holmberg’s testimony, as she had the burden of proving donative intent and the absence of undue influence. Because appellant was prejudiced by this evidentiary ruling, we reverse and remand for a new hearing.
III. Power of Attorney
We further reverse the trial court’s finding that the power of attorney was obtained as the result of undue influence because appellees never developed that argument below. To the contrary, appellees conceded below that the power of attorney was valid. Appellees did not assert in their complaint that the power-of-attorney form was the result of appellant’s undue influence. Rather, they simply asserted that she breached her fiduciary duty in deeding the property to herself because Mr. Shinpaugh never agreed to convey any of his property to her.
Nor was the issue tried by the implied consent of the parties. Rather, appellees expressly conceded during the hearing that the document was valid. When Ogle testified that Mr. Shinpaugh revoked the power of attorney, appellees’ attorney halted this line of cross-examination and conceded that the power of attorney was valid as written. Because this is so, even though evidence was submitted concerning the events surrounding the drafting of the document, the trial court had no basis for determining that the power of attorney was the product of undue influence.
The trial court further erred in alternatively finding that if the power of attorney was valid, appellant exceeded her authority and powers granted under the terms thereof and breached her fiduciary duty. Contrary to the trial court’s oral finding, the power-of-attorney form authorized appellant to deed the property to herself.
The form is entitled, “General Durable Power of Attorney.” It states that Mr. Shinpaugh designates appellant to act in his name and for his benefit as follows:
1. GENERAL GRANT OF POWER. To exercise or perform any act, power, duty, right, or obligation whatsoever that I now have or may hereinafter acquire, relating to any person, matter, transaction or property, real or personal, tangible or intangible, now owned or hereinafter acquired by me, including, without limitation, the following specifically enumerated powers. I grant to my agent full power and authority to do everything necessary in exercising any of the powers herein granted as fully as I might or could do if personally presentf]
(b) POWER TO ACQUIRE AND SELL. To acquire, purchase, exchange, grant options to sell, and sell and convey real or personal property, tangible or intangible, or interest therein, on such terms and conditions as my agent shall deem proper[.]
(Emphasis added.)
Thus, the plain terms of the power of attorney authorized appellant to convey Mr. Shinpaugh’s real property on such terms and conditions as she deemed proper. Obviously, she would deem it proper to convey property to herself that Mr. Shinpaugh had previously agreed to convey to her. In the simplest terms, consensual self-dealing is permitted. See Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002) (stating the guiding principle of the fiduciary relationship is that self-dealing is strictly proscribed unless the other party to the relationship consents). Because the valid power of attorney authorized appellant to convey Mr. Shinpaugh’s property, if he, in fact, agreed to convey the instant property to her, then appellant’s self-dealing would be permitted. Hence, on remand the trial court should consider the effect of the power of attorney in light of our reversal on this point as well as its new findings regarding the agreement.
V. Conclusion
We affirm the trial court’s finding that the presumption of undue influence arose because appellant and Mr. Shinpaugh were in a confidential relationship. We reverse and remand because the trial court erroneously determined that the agreement was the product of undue influence without considering the relevant, admissible testimony that, before he died, Mr. Shinpaugh intended to give appellant one acre of his property. We also reverse because the trial court erroneously determined that the power of attorney was the product of undue influence even though appellees conceded that the document was valid, and because the court erroneously determined that appellant exceeded her powers granted under that document.
This, in turn, requires us to reverse and remand the order of judgment and possession ejecting appellant from the entire 2.9 acres of land. If the trial court determines on remand that appellant is entitled to receive one acre of Mr. Shinpaugh’s land, it should enter an appropriate order based on that finding.
Affirmed in part; reversed and remanded in part.
Bird, Vaught and Heffley, JJ., agree.
Marshall, J., concurs.
Pittman, C.J., Gladwin, Robbins and Baker, JJ., dissent.
Appellees initiated a guardianship proceeding shordy before Mr. Shinpaugh died- . However, he died before a guardian was appointed.
Appellees inconsistently assert that the agreement cannot be regarded as making an inter vivos transfer of the property to appellant because no delivery of the property was actually made, and that the law concerning gifts raises the presumption of undue influence if the agreement was not testamentary in nature. We note that the intent of the donor can negate the fact that actual title was not transferred. See O’Fallon v. O’Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000).
While no proffer was made, no proffer was necessary because the substance of the testimony was apparent from the context. See Ark. R. Evid. 103(2).
Appellees further assert that even if Mr. Holmberg’s testimony was admissible, it would have only strengthened the trial court’s conclusion that a confidential relationship existed between appellant and Mr. Shinpaugh because Mr. Holmberg would have testified that the agreement was due to Mr. Shinpaugh’s “complete reliance on appellant for care 24 hours a day.” This assertion is speculative, at best, as it assumes how the trial court would interpret the evidence, as well as the weight the court would assign to it.
Appellant does not specifically challenge the trial court’s finding that she exceeded the scope of her authority under the power of attorney. However, we cannot affirm this finding as an alternative, independent ground that appellant failed to challenge because this finding is not independent from the remainder of the trial court’s findings. The court’s decision is related to the fact that it found the agreement to be invalid. | [
-16,
-18,
-35,
44,
104,
96,
56,
-72,
66,
-93,
119,
-45,
-17,
-46,
84,
107,
-13,
-53,
65,
123,
69,
-78,
5,
2,
114,
-77,
-47,
-43,
-79,
79,
-25,
-33,
73,
32,
-54,
-43,
102,
6,
-59,
24,
-122,
4,
10,
121,
-63,
-62,
52,
43,
20,
9,
113,
-113,
-9,
47,
53,
-24,
40,
106,
-7,
45,
88,
40,
-98,
4,
-33,
7,
-79,
53,
-104,
-125,
74,
106,
-110,
49,
0,
-8,
115,
54,
-106,
116,
74,
-103,
8,
102,
103,
1,
101,
-9,
-96,
-120,
6,
126,
-99,
-89,
-40,
89,
107,
12,
-84,
-106,
125,
-48,
71,
124,
-26,
-36,
89,
104,
8,
-57,
-42,
-95,
-116,
-112,
-112,
18,
-29,
39,
48,
113,
-33,
-18,
93,
71,
52,
-101,
-98,
-78
] |
Josephine Linker Hart, Judge.
Appellant, the employee-
claimant, appeals from the decision of the Arkansas Workers’ Compensation Commission finding that he failed to meet his burden of proving by a preponderance of the evidence that marijuana did not substantially occasion his injury. He contends that the Commission’s decision was not supported by substantial evidence. We affirm the Commission’s decision.
A compensable injury does not include an “[ijnjury where the accident was substantially occasioned by” the use of illegal drugs. Ark. Code Ann. § ll-9-102(4)(B)(iv)(hJ (Supp. 2007). Further, the “presence” of illegal drugs “shall create a rebuttable presumption that the injury or accident was substantially occasioned by” the use of illegal drugs. Ark. Code Ann. § 11 — 9— 102(4)(B)(iv)[6/). And finally, an “employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the . . . illegal drugs. . . did not substantially occasion the injury or accident.” Ark. Code Ann. § 11-9-102(4) (B)(iv)(d).
On appeal, we view the evidence in a light most favorable to the Commission’s decision and affirm if the decision is supported by substantial evidence. Woodall v. Hunnicutt Constr., 340 Ark. 377, 12 S.W.3d 630 (2000). When, as here, the Commission denies coverage because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. It is the function of the Commission to determine the credibility of the witnesses and the weight to be given to their testimony. Id. Whether the rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. Id.
According to the decision of the administrative law judge (ALJ), whose opinion was adopted by the Commission, an employee-employer-carrier relationship existed on January 25, 2005, when appellant suffered an injury resulting in the amputation of the fingers of his left hand as well as a portion of that hand. The injury occurred during the operation of a press used in the manufacture of gun magazines. During the operation of the press, one person feeds metal into the press, a second operates the press by pressing two buttons simultaneously, and a third catches the product after it is stamped out by the press. Though appellant normally worked in another department, around 11:00 a.m. that day, he was asked to help operate the press by catching the finished product as it was stamped out by the press. Craig Westbrook demonstrated the task to appellant and then observed appellant as he also performed the task. According to appellant, Westbrook instructed him never to put his hand in the press.
Appellant worked at the press for approximately one hour, and after a lunch break, continued to perform his job. But during operation of the press after lunch, material placed in the press became snagged. After the problem was corrected, the press was restarted, and appellant, whose hand was in the press, was injured. Approximately twenty-five hours after the injury, a urine sample was taken from appellant, which showed the presence of marijuana metabolites in an amount greater than 500 ng/mL.
Appellant’s expert witness testified that while the urine test does indicate the presence of marijuana metabolites, it does not indicate when appellant used the marijuana, nor whether appellant was impaired at the time of the accident. Appellees’ expert witness, however, testified that a report of more than 100 ng/mL of marijuana metabolites in the urine demonstrated an 83% likelihood that the blood level of the THC active compound was above 1 ng/mL, and that this would demonstrate an impaired condition. Further, he testified that given that the level was greater than 500 ng/mL, there would be more than a 95% chance that claimant was impaired at the time of his injury, which would affect judgment, reaction time, perception, cognitive function, and motor control.
In its decision, the Commission adopted the ALJ’s decision, which accorded great weight to the testimony of appellees’ expert witness. Furthermore, the Commission considered appellant’s testimony that he had not smoked marijuana for six days and found that it was not credible, noting that appellant admitted to smoking two to four marijuana cigarettes a day and that he had been smoking marijuana for the five years prior to the accident. Also, the Commission noted that appellant’s own expert witness indicated that appellant probably had smoked marijuana within the three or four days prior to the accident, that someone with 500 ng/mL of marijuana metabolites should not work around a press, and that appellant’s act of putting his hand in the press despite instructions to the contrary could be consistent with short-term memory loss caused by marijuana. Further, the Commission discounted the testimony of the three witnesses who were present on the day of the injury and who indicated that appellant had not been acting impaired that day.
Appellant challenges the Commission’s order. He asserts that the presence of metabolites does not create a rebuttable presumption that the injury or accident was substantially occasioned by the use of illegal drugs, and he relies on his own expert witness’s testimony that one could not determine, based on a urine test indicating the presence of metabolites, whether appellant was impaired. He attacks the testimony of appellees’ expert witness, contending that it was speculative and not stated with any degree of certainty. Further, he contends that the accident occurred because of his lack of experience and knowledge about the press, and that the direct cause of his injury was the other employee’s act of pressing the two buttons to activate the press, when it should have been apparent to him that appellant’s hand was not clear of the machine. He also observes that none of the witnesses testified that appellant seemed impaired.
This court has previously concluded that testing positive for marijuana metabolites is sufficient to establish a rebuttable presumption that the employee’s injury was substantially occasioned by the use of marijuana. Wood v. West Tree Service, 70 Ark. App. 29, 14 S.W.3d 883 (2000); see also Flowers v. Norman Oaks Constr. Co., 341 Ark. 474, 17 S.W.3d 472 (2000) (noting that both the Arkansas Supreme Court and this court have held that the presence of drugs or alcohol established only by metabolites or a slight amount of drugs or alcohol was sufficient to raise the rebuttable presumption and shift the burden of proof to the claimant to rebut the presumption). Moreover, in this case, appellees’ expert witness testified that the levels of metabolites in appellant’s urine demonstrated that appellant had the THC active compound in his blood. Accordingly, we are compelled to conclude that the rebuttable presumption was created.
As for his assertion that we should not credit the testimony of appellees’ expert witness, we observe that the Commission was faced with competing expert testimony, and as noted above, it is the Commission’s function to weigh the testimony. The Commission gave greater weight to the appellees’ expert witness, who opined that there was a 95% chance that appellant was impaired at the time of the accident, and we cannot say that the testimony was, as appellant contends, not substantial.
Finally, appellant asserts that there were other factors that could have independently caused the injury. As noted above, the employee must prove by a preponderance of the evidence that the illegal drugs did not substantially occasion the injury or accident. Ark. Code Ann. § ll-9-102(4)(B)(iv)(d). The phrase “substantially occasioned” by the use of illegal drugs requires that there be a direct causal link between the use of the drugs and the injury in order for the injury to be noncompensable. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). Here, the Commission credited the testimony that appellant was impaired, that he placed his hand in the press despite instruction to the contrary, and that this was consistent with appellant having impaired judgment from intoxication from marijuana. Thus, we conclude that the Commission’s opinion displays a substantial basis for the denial of relief, as it could conclude that appellant failed to prove that his use of illegal drugs did not substantially occasion his injury.
Affirmed.
Pittman, C.J., and Gladwin, Robbins, and Bird, JJ., agree.
Griffen, J., dissents. | [
52,
-17,
-12,
-83,
8,
-31,
18,
58,
83,
-121,
101,
81,
-17,
-13,
-103,
51,
-14,
95,
-44,
75,
-47,
-77,
83,
74,
-30,
-105,
121,
-57,
-75,
75,
-32,
92,
69,
48,
-122,
-43,
-26,
72,
-53,
88,
-54,
0,
-118,
104,
25,
-46,
56,
47,
-70,
95,
33,
-106,
-85,
42,
24,
-49,
109,
46,
91,
56,
88,
-7,
-102,
5,
107,
16,
-93,
116,
-100,
39,
-40,
14,
-104,
49,
17,
-24,
115,
-74,
-62,
20,
123,
-71,
4,
96,
98,
1,
29,
-27,
48,
-104,
55,
-92,
29,
-92,
-110,
73,
75,
9,
-106,
-75,
124,
20,
14,
122,
-13,
77,
92,
108,
-125,
-97,
-72,
-79,
29,
108,
-108,
-93,
-21,
-121,
20,
101,
-52,
-30,
84,
5,
82,
91,
-38,
-106
] |
Larry D. Vaught, Judge.
The genesis of this appeal was a divorce complaint filed by appellee Juanita Cooper on August 9, 1994. On September 27, 1994, Cooper was granted an uncontested divorce and awarded custody of the parties’ minor children, and appellant Donald Norman was awarded visitation. Although the divorce was granted and an agreement regarding visitation and support was accepted by the court, the parties continued to live together for approximately one year thereafter, at which point they finally and permanently separated. The parties engaged in sporadic litigation in the ensuing years, with Norman claiming to have been denied visitation and Cooper claiming not to have been paid child support. Following an agreement to resolve their issues, Norman exercised visitation twice in 1996. However, Norman has had no visitation with his children since 1996.
In September 2004, the Office of Child Support Enforcement sought to collect child support arrears on behalf of Cooper in Prairie County Circuit Court. However, Child Support Enforcement dismissed the case and closed its file at the request of Cooper. Norman continued the action in Prairie County seeking a finding of contempt against Cooper and an order to enforce visitation. Due to the fact that Cooper and her children had moved to Independence County, she objected to the case being set for a hearing in Prairie County. Consequently, Norman requested that the case be transferred to the Circuit Court of independence County.
Following Norman’s transfer request, a hearing was scheduled in Independence County for January 6, 2006, and notice was sent to Cooper via her attorney, Jill Blankenship. After Cooper’s counsel received notice, by order entered on December 21, 2005, Blankenship was permitted to withdraw as counsel. (The record does not explain why Blankenship was allowed to withdraw so close to the date of the hearing.) Neither Cooper nor her counsel attended the hearing. Norman, accompanied by his counsel, was present at the hearing.
As the hearing began, the trial judge, the Honorable Tim Weaver, recalled that he had previously been consulted, in his capacity as a private attorney, about the parties’ dispute in relation to a step-parent adoption question. As such, he decided to recuse from the matter and requested that Judge John Norman Harkey accept the case and continue the hearing.
Judge Harkey accepted the case and summoned Cooper’s former counselor, Jill Blankenship, who acknowledged receipt of the notice of the hearing and gave the court Cooper’s telephone number. The trial court permitted the hearing, but informed the parties that it would be treated as an ex parte hearing. At the conclusion of the hearing, the court ordered that visitation with Norman commence immediately. On January 6, 2006, the order was filed and served on Cooper. In response to the ordered visitation, as noted by Judge Harkey, there was “correspondence from one of the children, a petition for contempt, a counter-petition for contempt, a medical report, interrogatories, and lots of paper work; . . . the children are now, respectively, 15 years old and 14 years old; and . . . these matters are now [set] for what the Court hopes is a final hearing.”
A full hearing was held on July 28, 2006. Following this hearing, the trial court found both parties to be in contempt of court and took the other issues under advisement. In a judgment entered on November 14, 2006, the trial court found that Norman owed a child-support arrearage in the amount of $25,000, and was in contempt for willfully and intentionally disobeying the court’s order by failing to provide child support for his minor children. Norman was ordered to jail for sixty days, and thereafter “an automatic pickup order” would be issued if he missed any support payments. Norman was also ordered to pay Cooper $2,000 in attorney’s fees. Finally, the trial court found Cooper to be in contempt (for violating the visitation order) and ordered her to serve a term of seventy-two hours in jail. Only Norman appealed.
Norman first argues that the trial court erred in its display of bias against him and by “acting upon said bias in its rulings.” Although the great majority of Norman’s brief is dedicated to this allegation of error, we are unable to reach the merits of his claim because he makes this argument for the first time on appeal. Our supreme court has repeatedly held that appellants are precluded from raising arguments on appeal that were not first brought to the attention of the trial court. See, e.g., Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). Issues raised for the first time on appeal will not be considered because the trial court never had an opportunity to rule on them. Id. A party cannot change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial. Lewis v. Robertson, 96 Ark. App. 114, 239 S.W.3d 30 (2006). Because Norman’s allegation of trial-court bias was not raised and decided below, we are precluded from reaching its merits now. Id.
Next, Norman argues that the trial court erred by allowing appellee to solicit testimony on cross-examination relating to his prior incarceration for failure to pay child support in an unrelated case. At trial, Cooper’s counsel asked Norman “How many times did you go to jail because of support problems with Ms. Francis?” Norman’s counsel objected, claiming the evidence was “not relevant.” The objection was overruled, and Norman answered that he “went to jail one time because of support problems with Ms. Francis.” Norman also noted that he “stayed in jail for 40 days . . . for nonpayment of support.” Cooper’s counsel followed up by asking when the incarceration occurred. Norman’s counsel responded that he would like to “[r]enew the objection.” Once again, the objection was overruled and Norman answered “1989, I believe.”
On appeal Norman concedes that the “question is plainly relevant as defined in Rule 404 of the Rules of Evidence,” but argues that it was not “admissible pursuant to Rule 402, and not allowable pursuant to Rule 404(b).” Specifically, he argues that evidence of other “crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” However, Norman’s only objection below was to the relevance of the inquiry — a point that he now concedes. Because we cannot reach the merits of newly crafted appeal arguments where the trial court was neither put on notice of the alleged error nor given the opportunity to right the wrong, we affirm on this point without considering the merit — or lack thereof — of Norman’s prior-bad acts argument. See Burford v. State, 368 Ark. 87, 243 S.W.3d 300 (2006).
Norman also claims that the trial court erred in its decision to treat the January 6, 2006, proceeding as an ex parte hearing. This hearing was held at the request of Norman. He attended, as did his counsel. The trial court explained at the outset of the hearing that because neither Cooper nor her counsel were present, it would be considered an ex parte proceeding. Norman made no objection to the trial court’s ex parte designation at the time. The trial court then entered an order granting Norman immediate visitation with his children — the precise relief that he had requested. Although, as previously discussed, we are prohibited from addressing Norman’s claim of error because it is made for the first time on appeal, we are confounded by what possible wrong Norman might have suffered by being granted the immediate relief that he requested following a hearing where he was the only party in attendance.
For his fourth point on appeal, Norman claims that the trial court failed to apply the doctrine of unclean hands or alternatively the principle of equitable estoppel. Because this argument is made for the first time on appeal and Norman is precluded from raising arguments on appeal that were not first brought to the attention of the trial court, we do not consider this argument on its merits. Green, supra.
Next we consider Norman’s claim of error surrounding the trial court’s decision to grant Cooper’s petition to change the surname of the minor children from Norman to Cooper. In cases involving a name-change order, where there has been a full inquiry into the factors supporting the proposed change and the trial court has determined it is in the child’s best interest to grant the change, we will not reverse unless the decision is clearly erroneous. See Boudreaux v. Mauterstock, 88 Ark. App. 389, 199 S.W.3d 120 (2004). These relevant factors include, but are not limited to, the child’s preference; the effect of the change of the child’s surname on the preservation and development of the child’s relationship with each parent; the length of time the child has borne a given name; the degree of community respect associated with the present and proposed surnames; the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; and the existence of any parental misconduct or neglect. Id. The trial court may consider other relevant factors when determining which surname would be in the child’s best interest. Id.
Here, the evidence established that although the children’s step-father had at one point expressed an interest in adopting them, an adoption had not occurred. The record also showed that 1) the children manifested a strong desire to change their name to Cooper; 2) they had two siblings with the surname Cooper; 3) they had a close familial relationship with both their stepfather and his parents (who also bear the name Cooper); and 4) their natural father had failed to contact them or pay child support for a ten-year period. Based on these facts, particularly their strong desire to have the name Cooper and the extraordinary misconduct and neglect of their natural father, it cannot be said that the trial court was clearly erroneous in its decision that the name change was in the children’s best interest. As such, we affirm on this point.
Norman also claims that the trial court erred in its decision to not reduce or abate Norman’s child-support obligation following its conclusion that Norman had failed to prove by a preponderance of the evidence that he was disabled (he claimed to suffer from lyme disease) and was therefore unable to seek employment. At the hearing Norman anchored his disability claim on two letters that he introduced into evidence, one that outlined the symptoms of lyme disease and another that stated he could not safely climb a ladder or perform work as a pipe fitter. However, neither letter indicated that Norman was disabled. As such, we see no error in the trial court’s conclusion that Norman failed to prove that he was disabled. Norman’s child-support-reduction/abatement argument further alleges that the trial court misapplied Administrative Order No. 10 (imputing to him an income based on minimum wage) after finding that Norman was unemployed. He argues that the court should have followed Order 10(c), which is reserved for those who are self-employed. However, the proof at trial showed that Norman was not self-employed; rather, he was unemployed. As such, the court made no error in its income calculations, and we affirm on this point.
Norman next argues that the trial court erred in sentencing him to sixty days in jail for contempt because a thirty-day sentence is the maximum allowed by law. Indeed, Arkansas Code Annotated section 5-4-201(b)(3) (Supp. 2005), describes contempt as a class C misdemeanor with punishment limited to a maximum of thirty-days incarceration and a fine of $100. Therefore, Norman is correct in his claim the trial court had no statutory authority to impose a sixty-day sentence for criminal contempt. However, Article 7, Section 26 of the Arkansas Constitution provides, “The General Assembly shall have power to regulate by law the punishments of contempts; not committed in the presence or hearing of the courts, or in disobedience of process.” The last word of this article ■— “process” — has been construed so broadly that it encompasses virtually anything a court does. See Osborne v. Power, 322 Ark. 229, 908 S.W.2d 340 (1995) (finding that process is a comprehensive term that includes all writs, rules, executions, warrants or mandates issued during the progress of an action); Ark. Dep’t of Human Servs. v. Clark, 305 Ark. 561, 810 S.W.2d 331 (1991) (concluding that willful disobedience of an order is no different than willful disobedience of process and the statute does not apply); Smith v. Smith, 28 Ark. App. 56, 770 S.W.2d 205 (1989) (stating that an order of the court is process). Thus, there is little or nothing left of the specifically reserved power to regulate contempt of court granted to the General Assembly by the Arkansas Constitution.
Norman violated an order of the court when he failed to make child-support payments. Although his violation was an indirect contempt, committed outside of the court’s presence, it was by definition a violation of process. The court has the inherent authority to punish Norman, and the will of our General Assembly is not a limitation on the power of the court to inflict reasonable punishment for disobedience of process. Such power cannot be removed by laws to the contrary. See Ark. Dep’t. of Human Servs. v. Clark, 305 Ark. 561, 810 S.W.2d 331 (1991). Therefore, because Norman was sentenced pursuant to the court’s inherent authority to punish violations of court processes, we affirm the sentence.
Finally, Norman contends that the trial court erroneously failed to enforce visitation. However, because Norman agreed to the arrangement at trial, noting that he did not want to force his children to enter into a relationship with him, but he also did not want them prevented from contacting him if they so desired, he cannot claim error on appeal. Not only did Norman fail to object to the visitation arrangement set out by the trial court — he suggested it in the first place. As such, we see absolutely no merit in this argument, and affirm the trial court’s decision.
Affirmed in all respects.
Griffen and Baker, JJ., agree.
He was ordered to pay $52.00 per week for his current obligation and $10 per week toward his past obligation, with his first payments due August 4,2006. | [
-112,
-28,
-91,
92,
-118,
-95,
42,
60,
82,
-21,
101,
83,
-87,
-46,
17,
125,
66,
13,
85,
122,
67,
-77,
87,
96,
-6,
-13,
-6,
-44,
-77,
111,
-75,
-44,
76,
56,
-118,
-105,
66,
-30,
-121,
-112,
-124,
-112,
-87,
104,
64,
-61,
40,
-95,
18,
15,
17,
46,
-77,
108,
62,
75,
-20,
44,
-34,
-71,
-40,
-40,
-37,
6,
94,
55,
-93,
6,
-110,
36,
-40,
-82,
-112,
57,
-64,
-31,
115,
38,
-110,
117,
91,
-97,
9,
118,
103,
19,
-116,
-17,
-11,
-99,
79,
-68,
31,
-122,
-102,
48,
75,
70,
63,
-98,
123,
84,
75,
-8,
104,
-116,
117,
-28,
2,
-54,
-46,
-71,
-116,
92,
-52,
2,
-25,
-90,
112,
113,
-49,
-32,
124,
-58,
51,
-37,
-42,
-70
] |
Wendell L. Griffen, Judge.
Allen Lampkin was found guilty in district court of driving while intoxicated. He appealed to the circuit court. The issue before this court is whether the circuit court abused its discretion in dismissing Lampkin’s appeal and remanding the case back to the district court because it determined that Lampkin failed to appear without good cause on the date of his trial. We hold that the circuit court erred in determining that Lampkin failed to appear without good cause, as it recalled the case after Lampkin initially failed to appear, asked Lampkin what he wanted to do, and indicated that “we’re having a trial today.” Accordingly, we reverse and remand the case to circuit court.
Lampkin waived his right to a jury trial, and a bench trial was set for 10:00 a.m. on August 28, 2006. When Lampkin’s case was first called, he was not in the courtroom. The deputy prosecuting attorney informed the court that John May, Lampkin’s counsel, was in the hallway, and further stated that “I think he’s probably negotiating. They may be out in the hall.” Thereafter, when neither Lampkin or his attorney answered the bailiffs call, the circuit court announced, “Remand to district court.”
Nonetheless, the court recalled Lampkin’s case later the same day. The State indicated that it had no objection to Lampkin entering a negotiated guilty plea. May informed the court that “[Lampkin’s] case was called up while we were out in the hall and you initially remanded it.” May then reiterated that he and the. State had negotiated a guilty plea. When the court asked Lampkin what he wanted, Lampkin said he wanted to go to trial but that the State had not provided the name of one of the officers at the scene.
The following exchange then took place:
Court: Do you want me to remand this to district court?
Defendant: No, sir. I would like to get the officers to give us the trooper’s name and go forward with trial.
Court: Okay, that’s — you’re here for trial today.
Defendant: I know.
Court: We’re having a trial today.
Lampkin again indicated his willingness to proceed to trial but again requested that the unidentified officer be called as a witness. The court informed Lampkin that,”It doesn’t work that way,” and then the following exchange occurred:
Court: Okay, I’m going to remand this to district court.
Defendant: Well, then, I want to do the plea deal, Your Honor.
Court: I’ve already remanded it to district court because you didn’t come in when I called your name.
The relevant statute provides that
[i]f the appellant shall fail to appear in the circuit court when the case is set for trial or the judge . . . then the circuit court may, unless good cause is shown to the contrary, affirm the judgment and enter judgment against the appellant for the same fine or penalty that was imposed in the court of limited jurisdiction, with costs.
Ark. Code Ann. § 16-96-508 (Repl. 2006) (emphasis added). We review questions of statutory interpretation de novo and construe criminal statutes strictly, resolving any doubts in favor of the defendant. See Stivers v. State, 354 Ark. 140, 118 S.W.3d 558 (2003). We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Id.
In essence, the circuit court’s “remand” functioned as a dismissal of Lampkin’s appeal, which is permissible even though § 16-96-508 only authorizes a circuit court to affirm the district court’s judgment. See Ayala v. State, 365 Ark. 192, 226 S.W.3d 766 (2006). Nonetheless, we reverse because it was an abuse of discretion for the circuit court to dismiss Lampkin’s case based on his initial “failure to appear” when the case was thereafter recalled the same day, Lampkin was present when the case was recalled, and the court indicated that “we’re having a trial today.”
As Lampkin argues, the purpose of § 16-96-508 is to facilitate the court’s power to control its own trial docket. See Ark. R. Crim. P. 27.2 (stating that the court shall control the trial calendar and the scheduling of cases on the calendar). It is apparent from the record that Lampkin’s initial failure to appear did not disrupt the court’s trial docket. This was a bench trial. No jury was seated and then dismissed when Lampkin failed to initially appear.
Rather, the circuit court purported to dismiss the appeal, yet recalled the case the same day. Lampkin appeared when the case was recalled. The court asked Lampkin what he wanted to do and then stated that “we’re having a trial today.” It subsequently remanded the case based on Lampkin’s initial failure to appear only offer Lampkin voiced his complaints about the discovery regarding a specific witness. In so doing, the court also ignored the plea agreement that had been reached by the parties.
Certainly, a circuit court may change a ruling during the course of a proceeding. Here, however, the court did not merely change a ruling. Rather, it initially purported to dismiss the appeal but then, by its further statements, acted as though no final ruling had been made or as though any interim ruling had been reversed. Given that, it was an abuse of discretion for the court to thereafter dismiss the appeal pursuant to § 16-96-508 based on Lampkin’s initial failure to appear.
Reversed and remanded.
Robbins and Marshall, JJ., agree.
Lampkin raised this argument during a prior proceeding; the State obtained a continuance but apparently never provided the information.
For example, § 16-96-508 has been strictly interpreted to prohibit a circuit judge from dismissing an appeal based on a defendant’s failure to appear at a pre-trial conference. See Ayala, infra. | [
48,
-22,
-11,
-35,
43,
96,
38,
-68,
64,
-13,
103,
51,
-85,
-58,
5,
41,
-21,
89,
116,
105,
-35,
-74,
21,
99,
-10,
-101,
11,
-57,
-77,
-54,
-76,
-15,
76,
-96,
-62,
85,
102,
88,
-25,
88,
-114,
5,
-72,
96,
-126,
-118,
32,
48,
18,
15,
33,
30,
-29,
106,
25,
-61,
-23,
108,
91,
49,
-48,
80,
-79,
47,
-17,
6,
-93,
-108,
-98,
-127,
120,
46,
-100,
-111,
64,
-8,
114,
-106,
2,
116,
107,
-71,
-116,
102,
96,
33,
125,
85,
-23,
-87,
-98,
54,
-115,
-89,
-103,
32,
73,
12,
-106,
-99,
124,
54,
39,
120,
95,
20,
81,
100,
6,
-33,
-76,
-79,
-113,
20,
-124,
-45,
-29,
5,
52,
113,
-36,
-10,
84,
84,
113,
-101,
-52,
-108
] |
Sam Bird, Judge.
The issue in this case is whether the trial court erred in on a for modification of child support without hearing any testimony or receiving any evidence. We hold that the trial court did err, and we reverse and remand for a hearing on the petition.
Appellant Paul Lewis Dottley, Jr., and appellee Melanie Beth (Dottley) Miller were divorced on October 2, 2000. On January 15, 2006, appellant filed a petition for modification of child support, alleging a change in circumstances justifying a decrease in child support. Appellee answered, requested an increase in child support, and filed a counterclaim for contempt. The trial court set the case for a hearing on December 21, 2006.
The record reflects that on December 21, 2006, the trial court requested the attorneys to identify themselves and the parties they represented. The court then explained that there were two matters before the court: a petition to modify support and a motion for contempt. The following includes the remainder of the proceedings:
The Court: ... I visited with the attorneys in the back and received some indication of what the anticipated testimony might be. And from that I reached a decision. Mr. Harper, would you announce it?
Mr. Harper: Yes, sir, Your Honor. Mr. Dottley owes to my client the sum of $800.00 in back child support. In addition he owes the sum of $185.00 for school fees, which he has not paid. That total is $985. That amount will be paid within ninety days of today’s date.
In addition, my client will be awarded attorney’s fees of $500.00 for Defendant’s failure to follow the previous orders of the court. That fee will be paid within ninety days.
The Plaintiffs petition for increase is denied. The Defendant’s petition for a decrease is denied. The tax deduction will continue to be carried by my client.
During the summer months when the Defendant has the child for at least fourteen days he will be entitled to a reduction of one-half of his child support obligation. The child support will continue to be $400.00 per month.
The parties previously in a property settlement agreement provided that they would each be responsible for one-half of private school tuition and expenses. That agreement was entered into during the divorce and the Court finds it shall continue to be enforced. Therefore, they will both continue to be responsible for half of the tuition and fees for the private school the child is attending.
The Court: Okay. Very well. And this is the ruling of the court. Is there anything further, Mr Haddock?
Mr. Haddock: Excuse me, Your Honor?
The Court: I said that’s the ruling of the Court.
Mr. Haddock: Just note our objection, Your Honor, that the Court ruled without taking any evidence, any testimony, looking at none of the evidence to be pre sented in this case. That he ruled basically on all the representations ofMs.Dottley’s attorney and to that we object.
I’ve tried about a thousand of these cases and this is the first time I’ve ever had a ruling without any evidence. To that we object and to that we’re going to appeal.
The Court: Well, you know, while we’re here you can
Mr. Haddock: The Court’s announced [its] ruHng. If we’re going to have a hearing I’m going to ask the Court to recuse, because the Court’s already decided what he’s going to do without the first witness taking the stand.
The Court: Okay. Well, yeah, that’s my ruling based upon the proposed facts as I appreciate them to be if this matter was presented to the Court.
The trial court entered an order on January 31, 2007, denying appellant’s request for a decrease in child support and essentially incorporating the rulings set forth above in its oral pronouncement. Appellant filed a timely appeal from the order.
Appellant’s argument on appeal is that the trial court erred by, in essence, granting a summary judgment when it ruled without allowing testimony or receiving any evidence. Appellant claims that summary judgment is an extreme remedy; that this case is fact intensive; and that summary judgment was therefore inappropriate. Appellee responds, arguing that this court’s review is limited to the record, and that appellant’s failure to proffer evidence or testimony precludes our review on appeal, citing Duque v. Oshman’s Sporting Goods, 327 Ark. 224, 937 S.W.2d 179 (1997), and other cases standing for this proposition. Appellee claims that it is apparent that the trial court was attempting to offer appellant an opportunity for a hearing when it said, “Well, you know, while we’re here you can —” and that appellant’s counsel declined the offer. Appellee also argues that the record does not contain any evidence or testimony upon which a request to reduce child support could be granted, that the appellant offered nothing to meet his burden of showing that a change in circumstances had occurred, and that evidence and testimony not proffered will not be considered on appeal.
A change in circumstances must be shown before a court can modify an order for child support, and the party seeking modification has the burden of showing a change in circumstances. Reynolds v. Reynolds, 299 Ark. 200, 771 S.W.2d 764 (1989). In determining whether there has been a change in circumstances warranting adjustment in support, the supreme court has held that the trial court should consider remarriage of the parties, a minor reaching majority, change in the income and financial conditions of the parties, relocation, change in custody, debts of the parties, financial conditions of the parties and families, ability to meet current and future obligations, and the child-support chart. Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005).
On appeal, we review child-support awards de novo on the record. Martin v. Scharbor, 95 Ark. App. 52, 54, 233 S.W.3d 689, 692 (2006). A trial court’s determination regarding whether there are sufficient changed circumstances to warrant a modification in child support is a question of fact that we will not reverse unless it is clearly erroneous. Woodson v. Johnson, 63 Ark. App. 192, 975 S.W.2d 880 (1998). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Martin, 95 Ark. App. at 54, 233 S.W.3d at 692.
In order for the trial court to make the factual determination of whether there have been sufficient changed circumstances to warrant a modification of child support, the trial court must consider evidence. Evidence is “any species of proof legally presented at trial through the medium of witnesses, records, documents, exhibits, and concrete objects for the purpose of inducing belief in the minds of the court or jury. The word ‘evidence’ thus includes all the means by which any fact in dispute at a judicial trial is established or disproved.” 29 Am. Jur. 2d Evidence § 1 (1994). Then, in order for this court to review the trial court’s determination, we must review the entire evidence. In this case, there was no evidence to review: no testimony, no financial records, nothing. Appellant has effectively been denied any review of the trial court’s ruling because the court did not allow any evidence to be presented.
Appellant asserts that the trial court, in essence, granted a summary judgment. We disagree. Summary judgment is governed by Ark. R. Civ. P. 56. It provides for the filing of motions specifying the issues upon which the motion is being filed, responses, and supporting materials. No motion for summary-judgment was filed by either party; no affidavits, financial records, or other documents were provided; and no determination was made by the trial court that there were “no genuine issues of material fact to be litigated, and that [appellee] is entitled to judgment as a matter of law.” Mitchell v. Lincoln, 366 Ark. 592, 237 S.W.3d 455 (2006). The trial court did not grant a motion for summary judgment. The court made a determination regarding appellant’s petition for modification without considering, in any legally recognizable way, any evidence.
Appellee excuses the court’s actions by claiming that the court attempted to offer appellant an opportunity for a hearing, that appellant’s counsel understood it to be an offer, but that appellant declined the offer. Therefore, appellee claims, appellant essentially “waived” his hearing. Appellee relies upon cases requiring a party to proffer excluded testimony or evidence in order to have the issue considered on appeal.
First, we do not find the trial court’s statement as determinative as does appellee. While it is certainly possible that the trial judge intended to offer appellant a hearing when he was interrupted by appellant’s counsel, the fact is that he did not offer appellant a hearing. We are unwilling to assume that the trial court, after twice announcing “that is the ruling of the court” without hearing the testimony of any witnesses, was then attempting to reverse itself and conduct a hearing. If so, the court had an opportunity to do so after the interruption before its third pronouncement: “That’s my ruling based upon the proposed facts as I appreciate them to be if this matter were presented to the Court.”
Second, the cases upon which appellee relies requiring a party to proffer the excluded evidence in order to challenge the exclusion on appeal are inapposite. Those cases involve trials in which evidence was excluded. See, e.g., Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002); Duque, supra. In order to predicate error on a ruling that excludes evidence, Arkansas Rule of Evidence 103(b) states that “the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” There was no ruling excluding evidence in this case. The court never conducted a hearing in which evidence was being offered. The cases cited by appellee simply are not relevant to the issue before us.
We hold that the trial court erred in making findings and in denying appellant’s petition without allowing the parties to present testimony and other evidence. Accordingly, we reverse and remand to the trial court for a hearing.
Robbins, Glover, Heffley, and Baker, JJ., agree.
Pittman, C.J., dissents.
Appellant is referred to as the Defendant; appellee is referred to as the Plaintiff. | [
-80,
106,
101,
108,
75,
32,
107,
-114,
113,
-31,
39,
87,
-85,
-46,
16,
121,
-32,
105,
80,
106,
69,
-77,
7,
97,
-10,
-13,
-15,
-41,
-79,
109,
-19,
-41,
92,
56,
-62,
85,
66,
-61,
-91,
80,
-114,
-122,
59,
69,
-38,
-122,
36,
105,
26,
15,
53,
-98,
-45,
44,
60,
74,
104,
46,
93,
-71,
-60,
-16,
-110,
13,
31,
3,
-79,
52,
22,
12,
88,
44,
-104,
57,
10,
-23,
58,
-74,
-126,
116,
97,
-71,
-119,
100,
103,
18,
45,
-35,
-4,
-116,
110,
62,
9,
-26,
-101,
120,
11,
12,
-74,
-74,
116,
20,
14,
126,
74,
-116,
29,
-28,
3,
-50,
-60,
-69,
-115,
48,
-100,
10,
-25,
39,
48,
117,
-49,
-30,
92,
-58,
59,
-109,
-2,
-70
] |
Josephine Linker Hart, Judge.
A jury found appellant, Alton D. Spight, guilty of first-degree battery. Raising three issues on appeal, he argues that the evidence was insufficient to support the conviction, that the circuit court erred in refusing to instruct the jury on the crime of second-degree battery, and that during voir dire the State improperly altered the standard of proof. We disagree with all of appellant’s contentions and affirm.
We first consider appellant’s challenge to the sufficiency of the evidence. The jury was instructed on first-degree battery under Ark. Code Ann. § 5-13-201 (a)(8) (Supp. 2007), which provides that a person commits first-degree battery if, “[w]ith the purpose of causing physical injury to another person, the person causes physical injury to any person by means of a firearm.” Appellant argues that the State failed to prove that appellant acted purposely. Our criminal statutes provide that “[a] person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person’s conscious object to engage in conduct of that nature or to cause the result.” Ark. Code Ann. § 5-2-202(1) (Repl. 1996).
In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Taylor v. State, 11 Ark. App. 144, 72 S.W.3d 882 (2002). We affirm a conviction if substantial evidence exists to support it, which is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. Furthermore, a criminal defendant’s intent can seldom be proven by direct evidence and must usually be inferred from the circumstances surrounding the crime. Id. Because intent can seldom be proven by direct evidence, the jurors are allowed to draw upon their common knowledge and experience to infer it from the circumstances. Id. And because of the obvious difficulty in ascertaining a defendant’s intent, a presumption exists that a person intends the natural and probable consequences of his or her acts. Id.
At trial, Roy Ray testified that on February 22, 2006, he was driving a red Freightliner Century pulling a trailer down 1-30 on his way to Tyler, Texas. With him was his driving partner, Charles McCallister, who was in the passenger seat. As they were approaching the ninety-six mile marker, he moved to the left lane to pass a Marten truck that was in the right lane. He passed the Marten truck, and because a faster truck was coming up behind him, Ray pulled in front of the Marten truck. While the faster truck was trying to pass him, Ray came upon a slower truck in front of him, and Ray had to brake to keep from being too close to the slower truck. After the faster truck passed him, he moved to the left lane to pass the slower truck, but Ray came to a hill and lost speed. The Marten truck, which was in the right lane, then came up beside Ray’s truck, and Ray heard three or four gunshots. They later found two bullet holes in the truck, one to the left of the passenger door and one in the passenger-side mirror. Ray backed off and lost more speed, and the Marten truck moved into the left lane. Ray moved to the right lane and called 911 and reported that the gunfire came from the Marten truck. He then realized that McCallister had been shot.
McCallister, who was sitting in the passenger seat at the time of the shooting, testified that he was shot underneath his right arm, and the bullet went through the lower third of his right lung, causing his lung to collapse. When emergency personnel arrived, he was transported to Arkadelphia and then to Little Rock.
Deputy Ken Ashcraft of the Hot Spring County Sheriffs Office testified that on February 22, 2006, he was advised by dispatch that there had been a shooting and to look for a Marten eighteen-wheel truck on the interstate. He observed the Marten truck and stopped it. Ashcraft asked appellant, who was the driver of the truck, if something had happened back up the road. Appellant stated that he had shot a man. Ashcraft asked appellant if he had a gun, and appellant replied that he had one in his front pocket. According to Corporal Dean Palmer of the Arkadelphia Police Department, who participated in the stop, the gun was a five-shot revolver with three spent and two unspent cartridges.
Appellant testified in his own behalf. In sum, he testified that Ray’s truck was in the left lane moving slowly and another truck was in the right lane also moving slowly, and when Ray’s truck started to ease over on him, he thought that they may have been trying to rob or kill him. He testified that he then fired three shots at the truck to get away from them. He further testified that he was not shooting at anybody, that he did not look, that he did not aim, that he had never shot a gun from a moving vehicle, and that he shot wildly to try to get out of the trap. On cross-examination, when asked if he purposely pointed the gun and pulled the trigger, appellant agreed and testified that he “took it out the window and shot, h[e]ld it out the window and pulled it three times.” He further admitted that he had to roll the window down to shoot.
We conclude that the evidence was sufficient to support the first-degree battery conviction. The jury had before it evidence that appellant purposely fired three times at an occupied truck. While appellant contended that he was not shooting at anybody and he fired wildly without aiming, because a presumption exists that a person intends the natural and probable consequences of his acts, the jury could have reasonably concluded that when he fired at the occupied truck, his purpose was to cause physical injury to the truck’s occupants. Moreover, the jury was under no obligation to believe appellant’s evidence. See, e.g., Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999).
For his second point on appeal, appellant argues that the circuit court erred in refusing to give his proffered instruction on second-degree battery as a lesser-included offense of first-degree battery. The proffered instruction provided that appellant, “with the purpose of causing physical injury to Charles McCallister caused serious physical injury to Charles McCallister,” and that appellant “recklessly caused serious physical injury to Charles McCallister by means of a deadly weapon.” See Ark. Code Ann. § 5-13-202(a)(l), (3) (Supp. 2007).
We reject appellant’s argument under the analysis provided in Taylor. There, and here, the jury was instructed in accordance with Ark. Code Ann. § 5-13-201 (a)(8), which defines first-degree battery as purposely causing physical injury to another person by means of a firearm. Both in that case and here, the proposed instruction for second-degree battery did not describe a lesser-included offense as defined under Ark. Code Ann. §5-1-110(b) (Supp. 2007). Both alternatives given in the proffered instruction required an additional element, serious physical injury, that was not required in the first-degree battery instruction that was given, which only required physical injury when the injury was caused by a firearm. Further, the proffered instruction was not a lesser-included offense because the offense was not an attempt offense, and the proffered instruction did not differ from the offense charged only in the respect that a less serious injury to the same person sufficed to establish the offense’s commission.
For his third point, appellant argues that the circuit court erred in “allowing the prosecution to lower the standard of beyond a reasonable doubt.” During voir dire, the State asked the venire members if they knew the State’s burden of proof. The State then said that the burden was “beyond a reasonable doubt.” The State then asked, “Does that mean beyond a shadow of a doubt?” Appellant objected, arguing that the State was “trying to lower the bar on the standard” in violation of the state and federal constitutions. The court overruled the objection, telling the venire members that the purpose of voir dire was to inquire about their qualifications. The State then asked the question again. Ultimately, the State told the venire members that the burden was beyond a reasonable doubt, paraphrased the instruction defining the term, and stated that the court would instruct as to its meaning. At the close of the case, the circuit court instructed the jury on the proper burden of proof.
The course and conduct of voir dire examination is within the trial judge’s discretion, and on appeal we will not reverse absent an abuse of that discretion. Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993). This case is controlled by Hall, and we conclude there was no abuse of discretion. In Hall, the prosecutor explained that “shadow of doubt” was not the law and attempted to explain reasonable doubt by examples. The defendant argued on appeal that the State improperly attempted to quantify reasonable doubt. In holding that the trial judge did not abuse its discretion, the Arkansas Supreme Court observed that the jury was instructed on the proper burden of proof and that the jury was presumed to have followed the instruction. Here, the circuit court likewise instructed the jury on the proper burden of proof, and we likewise presume that it followed the court’s instruction. Thus, as in Hall, we conclude there was no abuse of discretion.
Affirmed.
Bird and Marshall, JJ., agree.
The statute provides in part as follows:
A defendant may be convicted of one (1) offense included in another offense with which he or she is charged. An offense is included in an offense charged if the offense:
(1) Is established by proof of the same or less than all of the elements required to establish the commission of the offense charged;
(2) Consists of an attempt to commit the offense charged or to commit an offense otherwise included within the offense charged; or
(3) Differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish the offense’s commission. | [
-80,
-18,
-12,
-65,
10,
96,
58,
56,
-48,
-109,
-92,
-77,
103,
-62,
5,
59,
-76,
-65,
-43,
41,
-48,
-65,
7,
81,
114,
-109,
91,
-61,
49,
75,
-12,
-36,
77,
112,
-54,
-43,
102,
72,
-59,
88,
-126,
-116,
-85,
97,
-62,
-14,
44,
38,
102,
14,
49,
-98,
-29,
42,
30,
-29,
-53,
44,
75,
-68,
-6,
56,
-104,
7,
-23,
20,
-77,
-92,
-99,
33,
-38,
46,
-40,
51,
0,
-4,
115,
-74,
-126,
-44,
109,
-103,
-116,
102,
34,
3,
29,
77,
-88,
-119,
46,
54,
-115,
-89,
24,
73,
67,
44,
-65,
-33,
118,
52,
38,
-14,
-27,
84,
89,
108,
3,
-57,
-108,
-79,
13,
36,
-106,
-16,
-21,
-123,
20,
49,
-52,
-30,
92,
21,
91,
-101,
-114,
-106
] |
Josephine Linker Hart, Judge.
John M. Farr, Jr., appeals from an order of the Polk County Circuit Court denying his motion to set aside an order on the mandate and granting Jackye R. Farr’s petition to find him in contempt. On appeal, he argues that both of these rulings were error. We affirm the denial of his motion to set aside the order on the mandate, and we reverse and dismiss the contempt finding.
On January 19, 2005, this court remanded the property division in the parties’ divorce, holding that the trial court erred in failing to divide as a marital asset a $92,000 “receivable” that was engendered by a loan of marital funds to John’s sons from a previous marriage. The $92,000 was a debt that remained from the sons’ failed business venture, and the trial court had concluded the debt was uncollectible.
On November 30, 2005, the trial court entered an order styled “Order on Mandate” that purported to divide the marital property in accordance with our January 19, 2005 opinion. The order, however, not only evenly divided the $92,000 receivable between the parties, but also ordered that Jackye would receive her portion directly from the proceeds of the sale of the marital residence. John did not challenge the order until September 1, 2006, when he petitioned to set the order aside. Jackye answered the petition and moved to dismiss, asserting that the trial court had lost jurisdiction to modify or set aside the order because more than ninety days had elapsed since its entry. By order entered January 9, 2007, the circuit court denied John’s petition. It specifically found that John “was represented by counsel at the time of the entry of the order, and was aware that the order was entered and when it was entered and had actual knowledge of the order.” The trial court also found that John “did not request a hearing concerning the order prior to its entry, nor properly object to same being entered, nor take an appeal from the entry.”
Meanwhile, the marital residence went to a Commissioner’s sale on August 2, 2006. The notice of the sale specified that the home was to be sold on three months’ credit with a ten-percent bond. John made the high bid of $231,000. On August 30, 2006, he requested the trial court to confirm the sale. John was given fifteen days to tender the purchase price and Jackye, who had been occupying the marital residence, was given fifteen days to vacate.
John failed to complete the sale and Jackye petitioned to have him found in contempt. The grounds asserted in Jackye’s petition were that John had failed to complete the purchase of the marital residence and that he had made duplicate keys to the home and other buildings on the property and placed furniture in the residence “without the knowledge and consent of the Clerk of the Court.” In the same order in which the trial court denied John’s petition to set aside the order on the mandate, the trial court found John in contempt. The trial court adopted Jackye’s allegations regarding making the keys, moving personal property into the residence, and failing to close on the property within the time frame specified as the basis for finding John in contempt. It awarded Jackye $1,000 in damages for having to move from the residence and $2,933.33 in attorney’s fees.
On appeal, John first argues that the trial court erred in entering its order on the mandate because it deviated from the directions that we gave it in our opinion and failed to resolve disputed questions of fact and law. We note, however, that John’s petition to vacate was filed approximately nine months after the entry of the order. This time is well beyond the ten days that Rule 59 of the Arkansas Rules of Civil Procedure allows for requesting a new trial and the ninety days specified under Rule 60(a) of the Arkansas Rules of Civil Procedure during which a trial court may modify or vacate a judgment to “correct errors or mistakes or to prevent miscarriage of justice.” While there are exceptions to the ninety-day limitation specified in Rule 60(c), John does not argue, nor do we find, that any of the enumerated grounds in that subsection apply. It is settled law that a trial court loses jurisdiction to modify a judgment or order after ninety days. Jordan v. Circuit Court of Lee County, 366 Ark. 326, 235 S.W.3d 487 (2006). Accordingly, we hold that the trial court did not err in refusing to set aside its order because it lacked the jurisdiction to modify or vacate the order.
John next argues that the trial court erred in finding him in contempt and awarding Jackye damages and attorney’s fees. He asserts that no specific order was produced prohibiting him from engaging in the alleged contemptuous conduct and there was no evidence presented at the hearing that established willful disobedience of any valid order of the court. We agree.
We note first that because the finding of contempt appears to be directed at vindicating the dignity of the court and punishing disobedience to its orders rather than compelling compliance with an order, the sanctions imposed in this case were criminal in nature. See Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004). When we review a case of criminal contempt, we view the record in a light most favorable to the trial judge’s decision and will sustain the decision if supported by substantial evidence. Hodges v. Gray, 321 Ark. 7, 11, 901 S.W.2d 1, 3 (1995). However, before one can be held in contempt for violating a court order, the order must be definite in its terms and clear as to what duties it imposes. Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007).
Here, by defaulting on the purchase of the marital residence, John did not violate an order of the court, but merely failed to fulfill a sales contract. While it is true that Jackye testified at the contempt hearing that he outbid her for the residence, we find this fact to be of no moment. The trial court never prohibited John from bidding on the residence, and when he did so, his actions were not those of a party to this action, but that of any member of the public at large who chose to enter a bid. We note further that his bid was secured by a ten-percent bond which John — or any other high bidder — would stand to forfeit if he or she failed to complete the sale. We acknowledge that the power to punish for contempt is inherent in the courts, but that power should only be exercised when it is necessary to insure that the authority of the court is continued. Nutt v. Delta Trust & Bank, 79 Ark. App. 257, 85 S.W.3d 927 (2002). John’s conduct in this regard was covered by a contractual remedy and was therefore outside the scope of the trial court’s contempt power.
Regarding the other asserted grounds for finding John in contempt, we have scanned the record, and we found no order that prohibited John from making duplicate keys or placing furnishings in the erstwhile marital residence. Indeed, Jackye’s petition merely alleged that this conduct was contemptuous because it was undertaken “without the knowledge and consent of the Clerk of this Court” or her. Before a person may be held in contempt for violation of a judge’s order, the order alleged to be violated must be definite in its terms as to the duties imposed and the command must be express rather than implied. Sims v. First State Bank of Plainview, 73 Ark. App. 325, 43 S.W.3d 175 (2001). Because there was not an express court order prohibiting such conduct, we hold that it was error for the trial court to find John in contempt.
Finally, Jackye asserted that John caused her to have to leave the marital residence. Her departure from the marital residence was occasioned by the Commissioner’s sale, however, not by any contemptuous conduct on John’s part. We therefore reverse and dismiss the contempt finding and vacate the judgment for damages and attorney’s fees.
Affirmed in part; reversed and dismissed in part.
Pittman, C.J., Robbins, and Bird, JJ., agree.
Griffen and Gladwin, JJ., dissent. | [
-80,
-12,
-3,
28,
8,
-32,
2,
-67,
114,
35,
119,
83,
-17,
-62,
1,
59,
-66,
111,
113,
121,
-63,
-93,
55,
32,
-14,
-77,
-47,
-33,
-75,
-49,
-12,
-41,
76,
56,
-6,
-43,
70,
-126,
-57,
80,
14,
-126,
25,
109,
-39,
-62,
48,
-85,
22,
15,
117,
-82,
-13,
46,
61,
-29,
108,
40,
-37,
56,
-44,
-40,
-69,
5,
74,
13,
-111,
53,
-112,
7,
88,
42,
-108,
49,
2,
-23,
115,
-74,
-110,
116,
79,
-69,
41,
100,
102,
17,
5,
-1,
-104,
-104,
14,
10,
-99,
-89,
-109,
88,
74,
104,
-68,
-67,
124,
16,
7,
-2,
-89,
68,
93,
108,
10,
-114,
-106,
-79,
-115,
124,
-120,
3,
-22,
67,
48,
113,
-49,
-96,
92,
38,
57,
-117,
-50,
-78
] |
Sarah J. Heffley, Judge.
This appeal arises out of the divorce between appellant Larry Dean Young and appellee Debra Loraine Young. In distributing the parties’ property, the trial court found that appellant occupied a position of trust and dominance over appellee and that he exercised undue influence over her when she executed a deed creating a tenancy by the entirety in property she received from her father. Based on these findings, the trial court set aside the deed and declared the land to be appellee’s sole and separate property. The trial court also made an unequal division of marital property by awarding appellee the marital home that was built on the land. Appellant challenges both of these decisions on appeal, but finding no error, we affirm.
The Deed
The parties in this case had been married for seventeen years until April 2006 when they separated and appellee filed for divorce. They both had been married once before, and they each had two children from their previous marriages. The four children resided with them until reaching adulthood.
In the summer of 2003, appellee’s father was suffering from Alzheimer’s disease and required around-the-clock care. Although employed full-time, appellee tended to her father on a daily basis, sometimes before work or during lunch, and she prepared his dinner almost every night. Her father’s property had been in trust, and in June 2003 appellee received a conveyance of sixty acres of land from the trust, titled solely in her name.
In July 2003, appellee’s son Cody died quite unexpectedly. Initially, the cause of death was a mystery, and because of his young age, either suicide or foul play was suspected. It was several months before the autopsy results were received, which revealed that he had died of an undiagnosed heart condition.
In August 2003, the month after her son died, appellee executed a quitclaim deed adding appellant’s name to the deed. Appellee’s father passed away the following November.
At the trial, appellee’s first witness was her personal physician, Dr. Jennifer Bingham, who specialized in internal medicine. Dr. Bingham had treated appellee since 2000 for the chronic conditions of hypertension and Crohn’s disease. Dr. Bingham explained that Crohn’s disease involves the inflammation of the colon, and she said that this condition was exacerbated by stress. Normally, Dr. Bingham saw appellee every three months, but in the summer of 2003 she had appellee come into the office every two weeks because she was worried about her. Dr. Bingham was aware of Cody’s death and the illness of appellee’s father. She also knew that appellee had marital problems stemming from a previous affair appellant had with another woman. Dr. Bingham stated that appellee was experiencing multiple flare-ups of her Crohn’s disease and episodes of infections such as sinusitis and bronchitis, which Dr. Bingham attributed to decreased resistance from stress. Dr. Bingham also treated appellant for depression that summer.
Dr. Bingham testified that appellee was “devastated,” “distraught,” and “overwhelmed” with grief over the death of her son. Dr. Bingham added that appellee was “not thinking right” and that her ability to conduct the affairs of daily life was “extremely compromised.” Appellee was not able to participate in making sound health-care decisions, as shown by her declining to fill prescriptions that Dr. Bingham had prescribed. Dr. Bingham said this was uncharacteristic of appellee, who usually complied with her medical recommendations.
Appellee spoke to Dr. Bingham about the land transaction. Dr. Bingham testified that appellee was feeling very much alone in the aftermath of Cody’s death and in the midst of her father’s illness. Appellee told her that appellant had threatened to leave her unless his name was added to the deed, and she said that appellee felt “completely forced” into doing it, and that appellee felt “awful” for having done so. Dr. Bingham testified as to her belief that appellee would not have given appellant an interest in the property had she not been so ill and “swimming in grief.” She said that appellee’s resistance was at a low ebb because every bit of her strength and endurance had been drained from dealing with Cody’s death, her father’s sickness, and her own illnesses. Dr. Bingham also testified that, based on her numerous conversations with appellee, appellant was the dominant figure in the marriage.
The trial court also heard the testimony of appellee’s friend and coworker, Nora Hall. She had known appellee for nineteen years since appellee began working at the company. Ms. Hall said that the summer of 2003 was a difficult time for appellee because of Cody’s death and her father’s declining health. She testified that appellee was worried about her father and that caring for him took up a lot of her time and energy. Ms. Hall said that Cody’s death “wiped her out” and that appellee was so depressed that she “was just like a zombie.” Appellee missed a lot of work, and her work decreased in quality. Ms. Hall explained that appellee and Cody had been very close and that they had spoken to one another on the phone every day. She stated that Cody was appellee’s “support system,” and whereas appellee was estranged from her daughter, Cody had always been there for appellee and loved her unconditionally.
Ms. Hall was of the opinion that appellant dominated appellee. She testified that appellant was very jealous and that he called appellee at work five or six times a day and checked the parking lot to see if appellee’s car had been moved at lunch. She said that appellee was always aware of where she stood in a room in relation to male coworkers and that appellee was afraid to be seen in a car with a male coworker when they went to lunch as a group. Appellant would not allow appellee to go to a bar that he frequented that was across the street from their work. Ms. Hall also testified that appellee had to ask appellant for permission to go on trips with the girls and that before any trip appellee would be nervous and agitated to the point of physical illness because of appellant’s warnings about what appellee could and could not do during the outing.
During Ms. Hall’s testimony several photographs she had taken of appellee were introduced into evidence. These photographs showed extensive bruising on appellee’s arms, which ap-pellee said had been inflicted by appellant.
Gene George, part owner of the company where appellee worked, echoed the previous witnesses’ testimony that appellee was despondent and not herself in the summer of 2003. He said that appellee was not functioning at her usual level and that he had been worried about her.
Appellee testified that she was devastated by Cody’s death. She referred to him as her “rock” and said that they were very close. After his death, she said she “functioned like in a fog.” She had trouble remembering her activities at the end of the day. She said that she was exhausted both mentally and physically.
Appellee further testified that appellant had caused the bruises shown in the photographs that Ms. Hall had taken and that there were other times he had been physically abusive. She said that on occasion she would be angry when appellant came home late and that she would try to get out of bed, but that appellant would hold her down and not let her get up. She said that appellant drank alcohol and that the more he drank the more verbally abusive he would be. She feared him on these occasions. She said there were nights when he did not come home and other nights when someone had to drive him home. Appellee also testified that when appellant moved out of the house he took and pawned a rifle that had belonged to Cody, in her mind, just to be mean.
Appellee stated that appellant initiated all of the conversations about placing his name on the deed. She said that he called her about it at work and at night and that he would bring it up if he were at home. He threatened to leave her “just like Cody” and said that “his family was his” and that she would be deprived of them, too. She said that appellant would cuss and get extremely angry and that he called her a “greedy bitch” for not putting his name on the deed. She said that he made her “life a living hell” and that finally he “wore me down.” She testified that she did not take the deed to be filed in hopes that appellant would back off. She said she did not tell her friends about it because she knew it was something she had not wanted to do. Appellee testified that there was not a day that she did not regret doing it. She said that no one at the bank told her that having appellant’s name on the deed was a condition for obtaining a loan at the bank to build a home.
Sandra Thomas, appellant’s sister, testified that she had never noticed any hostility between appellant and appellee and that she had not noticed appellant dominating appellee. She said that appellee was devastated by Cody’s death “like any mother would be.”
Appellant testified that he had not been physically or verbally abusive to appellee. He admitted that he had caused the bruises shown in the photographs, but he said that it happened one night when appellee was applying a TENS unit to his neck and he had grabbed her when she, as a joke, was going to place the unit on his genitals. Appellant also testified that he had taken and pawned Cody’s rifle, but he claimed that appellee had given the rifle to his son. He did purchase and return the rifle.
Appellant did not recall any of the conversations about having his name placed on the deed. He also did not know whose idea it was to have his name placed on the deed. He said that it was not a big deal and that appellee never refused to put the land in his name. Appellant stated that they had been “married for seventeen years and it’s just ours.” He believed that she had placed his name on the deed because he was her husband and she loved him. He also said that a bank officer had told him that it was necessary for his name to be on the title so that they could get a construction loan to build the home on the land. Appellant said that he had taken the deed to be filed.
Appellant’s daughter, Alisha Fogley, testified that she had never witnessed any physical abuse. She said that her father had treated all of the children the same and that appellant was upset when Cody died. Ms. Fogley also testified that appellee told her that she had gotten the bruises when they were playing around with an electrolysis machine and appellee attempted to place the machine on his “male area.”
In rebuttal, appellee testified that she and appellant did tussle over the TENS unit. She said, however, that the TENS unit incident occurred months before appellant inflicted the bruises depicted in the photographs.
After the trial judge heard the testimony, he took a brief recess before announcing his decision. When he returned to the courtroom, the trial judge made extensive findings from the bench. The judge found credible and placed great weight on the testimony of appellee and her witnesses. The trial judge found that appellant was the dominating force in the marriage, both physically and mentally, and that he overcame her free will at a time when she was vulnerable and in a substantially impaired state. Based on these essential findings, the trial court set aside the quitclaim deed. Appellant contends that the trial court’s findings are clearly erroneous. We disagree.
When property is placed in the names of a husband and wife, a presumption arises that they own the property as tenants by the entirety. Dunavent v. Dunavent, 66 Ark. App. 1, 986 S.W.2d 880 (1999). This presumption can be overcome only by clear and convincing evidence that a spouse did not intend a gift. Id.
It is also well settled that, once a spouse has shown that a confidential relationship existed with the other, and that the other was the dominant party in the relationship, it is presumed that a transfer of property from the former to the latter was invalid due to coercion and undue influence. Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). See also, e.g., Marshall v. Marshall, 271 Ark. 116, 607 S.W.2d 90 (1980); Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973); Lyons v. Lyons, 13 Ark. App. 63, 679 S.W.2d 811 (1984); Perrin v. Perrin, 9 Ark. App. 170, 656 S.W.2d 245 (1983); Crestman v. Crestman, 4 Ark. App. 281, 630 S.W.2d 60 (1982). In such a case, the spouse to whom the property was transferred hears the burden of rebutting the presumption by producing evidence showing that the transfer of property was freely and voluntarily executed. Myrick, supra. The invocation of the presumption of invalidity is in truth the product of a two-pronged test. Id. Before the presumption of invalidity can be invoked, the transferring party must not only claim that the receiving party was the dominant one, but must also establish that this party occupied such a superior position of dominance or advantage as would imply a dominating influence. Id. Once this has been established, the presumption of involuntariness on the part of the transferring spouse is invoked, and the burden shifts to the donee to prove that the transfer was voluntary. Id.
Although we review traditional equity cases de novo on the record, we do not reverse unless we determine that the trial court’s findings were clearly erroneous. Hill v. Hill, 84 Ark. App. 132, 134 S.W.3d 6 (2003). A trial court’s findings of fact are clearly erroneous when, although there is evidence to support them, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Id. In reviewing a trial court’s findings, we defer to the trial court’s superior position to determine the credibility of witnesses and the weight to be accorded their testimony. Id.
In this case, appellee ostensibly made a gift of this property to appellant, but there was evidence credited by the trial court that it was one that was not bestowed upon him voluntarily. The record contains testimony that appellant commanded a dominating influence over appellee. There was also evidence that he badgered, belittled, and threatened appellee to accede to his demand for an interest in the property at a time when she was in a substantially weakened and diminished condition, both physically and emotionally. We are simply unable to say that the trial court’s findings or its decision was clearly erroneous.
Unequal Division of Marital Property
The trial court evenly divided the parties’ marital property except for the marital home. The court awarded appellee the home and also made her responsible for paying the construction loan. Arkansas Code Annotated section 9-12-315(a)(l)(A) (Repl. 2008) contains a non-exclusive list of factors for a trial court to take into account when deciding whether to make an unequal division of marital property. When an unequal division is made, the statute requires that the trial court “must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the order entered in the matter.” Ark. Code Ann. § 9-12-315(a)(1)(B). The trial court’s order stated, “That the Court, taking into account all the factors of section 9-12-315(a)(l)(A) of the Arkansas Code, finds that an unequal distribution of marital assets to be equitable in this matter.” Appellant contends that this statement falls short of the statutory requirement for the court to explain its decision.
Appellant is correct that simply reciting the statutory factors does not satisfy the requirement of the statute. See Baxley v. Baxley, 86 Ark. App. 200, 167 S.W.3d 158 (2004). However, the trial court covered this issue in detail in its oral ruling from the bench. We have held that a trial court’s explanation set out in an oral ruling meets the requirement of the statute. Jones v. Jones, 17 Ark. App. 144, 705 S.W.2d 447 (1986). Accordingly, we find no merit in appellant’s argument.
Affirmed.
Gladwin, J., agrees.
Robbins, J., concurs.
Appellant has raised no claim of laches occasioned by the three-year lapse of time between the transfer and the request to set it aside made in the divorce action. Nor does he argue that this time interval detracts from appellee’s claim of undue influence. Our review of the case law does not reveal any time restraints for seeking to set aside a transaction that was not freely made. See, e.g., Myrick, infra (fourteen-year lapse); Marshall v. Marshall, infra (two-year lapse); Dunn v. Dunn, infra (one-year lapse); Perrin v. Perrin, infra (two-year lapse). | [
-47,
108,
-35,
29,
-102,
32,
10,
-72,
97,
-113,
101,
83,
-17,
-46,
85,
47,
-12,
-83,
65,
106,
-12,
-77,
22,
32,
-48,
-13,
-7,
-58,
-80,
125,
-9,
-33,
76,
56,
-118,
21,
66,
73,
-25,
80,
-122,
-128,
-117,
125,
89,
82,
56,
111,
94,
5,
53,
-114,
-14,
-84,
61,
-26,
72,
46,
91,
61,
80,
-104,
-113,
5,
127,
3,
-79,
38,
-80,
-56,
-56,
74,
-112,
57,
0,
-12,
51,
-74,
-110,
116,
94,
-103,
9,
119,
99,
16,
13,
-3,
-96,
9,
15,
126,
31,
-89,
-102,
89,
73,
2,
-67,
-99,
116,
116,
11,
-12,
-26,
76,
12,
108,
16,
-49,
-42,
-127,
-123,
56,
-100,
-111,
-13,
-117,
49,
113,
-117,
-30,
92,
103,
115,
-101,
-50,
-78
] |
Robert J. Gladwin, Judge.
Donald Sparrow brings this from the order of the Craighead County Circuit Court finding his daughter K.S. dependent-neglected, based on allegations that he sexually abused K.S. He raises three points for reversal, contending that the circuit court erred in not dismissing the action on the basis that collateral estoppel barred the present action where the issue of abuse had been litigated in another court; that the circuit court erred in denying him the right to confront K.S. by directing him to sit outsidé her view during her testimony; and that the circuit court erred in excluding, as hearsay testimony, a statement made by K.S. None of these points has merit. Therefore, we affirm.
Sparrow and his former wife, appellee Heather Scott, are the parents of K.S., born July 1, 1998. Sparrow and Scott were divorced in Lafayette County in 2000. Custody of K.S. was awarded to Scott, and Sparrow was afforded visitation. The docket sheet from the divorce court shows that there has been extensive post-divorce litigation.
The parents were before the divorce court in Lafayette County on August 28, 2006, for a hearing on Sparrow’s motion for visitation. According to the order from that hearing, the court found “no credible evidence of child abuse” by Sparrow towards K.S. and ordered that visitation resume, to be supervised by K.S.’s paternal grandmother, Linda Sparrow.
According to an affidavit submitted in support of its petition, appellee Arkansas Department of Health and Human Services (“DHS”) received a report on May 8, 2006, that K.S. was being sexually abused by Sparrow. The report was investigated and found to be true.
In September 2006, DHS received another report concerning K.S., alleging that, according to an order issued by the Lafayette County court, Sparrow’s visits with K.S. were to be supervised by his parents but that they were failing to do so. The report also noted that K.S. was having psychosomatic symptoms such as nightmares and wetting the bed and that these manifestations began occurring since her last visit with Sparrow. The affidavit went on to note that K.S. reported that her father was physically violent toward her and that she did not want to see Sparrow. The affidavit further noted that, during an interview with K.S.’s school principal, Pam Clark, she reported that K.S. was sexually acting out.
On December 14, 2006, DHS filed a petition in the Craig-head County Circuit Court, alleging that K.S. was dependent-neglected as a result of sexual abuse. The petition sought an order to provide safeguards for K.S.’s protection. The circuit court entered an ex parte order finding that K.S. was at imminent risk of being sexually abused by her father during visitation and ordering that Sparrow have only supervised visitation at DHS. The court also set a probable-cause hearing for December 21, 2006.
At the probable-cause hearing, K.S. testified that she was afraid of her father because he had hurt her and had threatened her not to tell anybody about the abuse. She also testified that her father had touched her privates'. She also indicated that there were times when she was left alone with her father and that she is sometimes afraid to be left alone with him. Sparrow did not attend the hearing in person; however, his attorney did. Counsel made a motion to dismiss the action on the basis of lack ofjurisdiction and res judicata, which was overruled.
By order entered on January 18, 2007, the circuit court found probable cause to enter the ex parte order. The court ordered the termination of all visitation between K.S. and Sparrow unless supervised by DHS. The court also ordered Sparrow to obtain and follow the recommendations of a sexual-risk assessment, as well as to have a psychological evaluation. The circuit court later amended the probable-cause order to reflect that there would be no contact between K.S. and her father.
Sparrow and Scott returned to the Lafayette County divorce court for a hearing on January 25, 2007, on cross motions for contempt. At that hearing, K.S. testified that she loved her parents, adding that it was hard to testify with them watching her. K.S. testified that her father had not said or done anything bad to her. She also said that her mother never told her to make any of the allegations, except to tell the truth. K.S. denied being afraid of her father. K.S. also denied that Sparrow had done anything inappropriate to her while she was bathing, other than to scrub her down, which she said she could do herself. The Lafayette County court again found no credible evidence of child abuse, noting that K.S.’s testimony “clearly refutes all allegations of child abuse.” The court held Scott in contempt for not allowing visitation with Sparrow and ordered her to pay for a transcript of K.S.’s testimony, as well as attorney’s fees for Sparrow’s attorney. The court ordered supervised visitation to resume.
The adjudication hearing in the present case was held beginning on February 27, 2007. Sparrow made a motion to dismiss the action, based on a lack ofjurisdiction and on collateral estoppel. He argued that DHS was precluded from bringing the present dependency-neglect action because the issue of K.S.’s having been abused had been litigated in the Lafayette County divorce action. The circuit court denied the motion to dismiss, finding that the two courts addressed separate issues: the Lafayette County court addressed issues concerning contempt, while the Craighead County court addressed the dependency-neglect issue.
K.S. testified that her father had touched her private parts with both his finger and with a Q-tip. She also said that there were instances where she was left alone with her father. K.S testified that her testimony in the Lafayette County court was not truthful in that she did not tell the court what her father had done to her or that he had threatened her. She explained that she did not tell the truth because her father was making faces at her and she “just freaked out.” She also said that she wanted a “real supervisor” to watch over her because, otherwise, bad things would happen to her. On cross-examination, K.S. denied that she had been coached by her mother to make the accusations against her father. K.S. was also asked about whether she had practiced her testimony with the attorney ad litem or DHS social workers.
Sparrow testified that he had never abused K.S. in any manner. He also denied threatening K.S. or making faces at her during her testimony.
The circuit court issued a letter opinion on March 26, 2007, finding that K.S. was dependent-neglected and that it was in her best interests to restrict her visitation with Sparrow. The court noted that, except for her testimony in the Lafayette County court, K.S. had been consistent in her sexual-abuse allegations to doctors, social workers, and personnel at her school and before the circuit court in the present action. The court also found credible K.S.’s testimony that she testified falsely in the Lafayette County court because her father was present and making faces at her. The court noted that it had to admonish Sparrow for making hand and facial gestures in response to the testimony of witnesses or the questions from the attorneys. Sparrow was found to be “vague, reluctant and disingenuous” in his testimony. The court found that there was no evidence that Scott had coached K.S. to make false allegations against Sparrow. As a result of the finding that K.S. was dependent-neglected, the circuit court terminated all visitation between K.S. and Sparrow. An order memorializing the court’s findings was entered on April 4, 2007. Sparrow filed a timely notice of appeal. He now raises three points for reversal.
In his first point, Sparrow, relying on Arkansas Department of Human Services v. Dearman, 40 Ark. App. 63, 842 S.W.2d 449 (1992), argues that the circuit court erred in denying his motion to dismiss because the doctrine of issue preclusion bars the relitigation of issues of law actually litigated by parties in the first suit. In other words, Sparrow is arguing that DHS is precluded from bringing the present action because the issue of his abusing K.S. was litigated in the Lafayette County divorce court and that court found no evidence of abuse.
We agree that Dearman is factually similar to the present case. However, we find that it is not controlling under the circumstances of this case. In Dearman, the custodial father had filed a petition for contempt against the mother for failing to return the child from visitation. The mother filed a counterclaim for a change of custody, alleging that the father had sexually abused the child. The chancellor found the mother in contempt and dismissed her counterclaim. Three weeks later, DHS brought an action for emergency custody of the child. A DHS caseworker testified that the allegations of abuse on which its petition was based were the same allegations in the earlier action. This court held that DHS was collaterally estopped from relitigating this issue due to the previous decision. This court set out the elements of collateral estoppel as follows: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have.been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment.
We hold that Sparrow has failed in his burden of proving that the issues in the two cases were the same because he has failed to provide complete transcripts of both of the hearings in Lafayette County where the allegations of sexual abuse were raised. See Fariss v. State, 303 Ark. 541, 798 S.W.2d 103 (1990). In Dearman, there was testimony that the allegations in both cases were the same. Here, there is no such testimony to establish whether the elements of estoppel have been met, only the partial transcript of K.S.’s testimony. This factor serves to distinguish the present case from Dearman. We do not know whether the specific allegations of abuse were the same in both cases or if there were additional instances of abuse about which K.S. was not questioned. It was Sparrow’s burden to prove that the allegations were the same and that they had been fully litigated in Lafayette County. Fariss, supra. Therefore, the circuit court did not err in denying Sparrow’s motion to dismiss on the basis of collateral estoppel.
Sparrow’s second point addresses the circuit court’s requirement that, during K.S.’s testimony, Sparrow be seated outside of her view. Sparrow asserts that this was a violation of his right of confrontation. We cannot address this issue because it is not properly preserved for our review.
At the hearing, Sparrow’s objection was that “there’s no court authority. I mean, a party’s entitled to have, to be present in a normal proceeding in normal fashions.” Nowhere does he mention his right to confront K.S. It is well settled that a party cannot change the grounds for an objection on appeal but is bound on appeal by the scope and nature of the objections as presented at trial. Foundation Telecomm. v. Moe Studio, 341 Ark. 231, 16 S.W.3d 531 (2000). Further, Sparrow has failed to cite any authority to support his argument that a criminal defendant’s Sixth Amendment confrontation rights apply in dependency-neglect cases. Assignments of error that are unsupported by convincing argument or authority will not be considered on appeal unless it is apparent without further research that they are well taken. Israel v. Oskey, 92 Ark. App. 192, 212 S.W.3d 45 (2005).
In his third point, Sparrow argues that the circuit court erred in excluding testimony concerning a statement K.S. made because the statement fell within an exception to the hearsay rule. At the adjudication hearing, Linda Sparrow was asked on direct examination whether she had heard K.S. deny any sexual allegation. She testified that “[K.S.] told her dad that she knew why she wasn’t able to come.” After a hearsay objection was sustained, Sparrow proffered the rest of K.S.’s statement as follows: “[K.S.] said further she doesn’t understand why her mother is saying these things to people.”
According to Sparrow, this testimony was admissible as an exception to the hearsay rule because it related to K.S.’s then-existing mental, emotional, or physical condition. See Ark. R. Evid. 803(3). This court reviews evidentiary errors under an abuse-of-discretion standard. See Arkansas Dep’t of Human Servs. v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002). The circuit court has broad discretion in its evidentiary rulings; hence, the circuit court’s findings will not be disturbed on appeal unless there has been a manifest abuse of discretion. See id. However, the fact that a piece of evidence falls within an exception to the rule against hearsay does not equate to automatic admissibility. Id.; Lovell v. Beavers, 336 Ark. 551, 987 S.W.2d 660 (1999).
We need not decide whether the statement at issue does or does not fall within the exception because it was subject to being excluded as cumulative to other statements made by K.S. that Sparrow did not abuse her. Sparrow wanted to test K.S.’s credibility by exploring other instances where she had denied that he had abused her. It is not error to exclude additional, merely cumulative, evidence with regard to the fact that K.S. had made earlier statements that Sparrow had not abused her. McMillan v. State, 229 Ark. 249, 314 S.W.2d 483 (1958); Edwards v. State, 40 Ark. App. 114, 842 S.W.2d 459 (1992). That was the predicate question leading to the testimony Sparrow sought to introduce through his mother’s testimony — that K.S. had made statements denying that Sparrow had abused her. Therefore, the statement at issue was cumulative to those other statements and could be excluded under Ark. R. Evid. 403.
Affirmed.
Pittman, C.J., and Baker, J., agree.
We note that K.S.’s therapist, Matthew Coven, testified that he testified in the Lafayette County court, but he could not recall what was asked of him in that proceeding.
Rule 803(3) ¡provides, in Pertinent Part, as follows:
Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health.... | [
49,
-20,
-52,
110,
10,
-31,
-54,
108,
82,
-29,
117,
-13,
-17,
-22,
17,
107,
-22,
11,
85,
97,
-45,
-77,
87,
-32,
122,
-5,
-16,
-33,
-78,
77,
108,
-44,
88,
112,
-118,
113,
98,
-62,
-57,
-40,
-122,
10,
-85,
-28,
16,
-62,
40,
-85,
26,
7,
117,
-98,
-9,
41,
60,
-49,
40,
14,
91,
-84,
-56,
112,
-37,
7,
95,
4,
-109,
-124,
-70,
-122,
88,
47,
-40,
56,
0,
-19,
51,
38,
-110,
117,
79,
-99,
9,
52,
-30,
33,
-116,
-11,
121,
-119,
-50,
61,
-115,
-25,
-102,
104,
67,
12,
-74,
-68,
94,
84,
10,
124,
99,
-52,
52,
104,
34,
-49,
-106,
-119,
-51,
57,
-114,
50,
-29,
36,
49,
81,
-53,
-96,
84,
-42,
115,
-101,
-98,
-77
] |
David M. Glover, Judge.
The underlying action in this case involves medical malpractice and wrongful death in the demise of Kikendel Jermaine Banks. Appellant, Alan Banks, is the personal representative of the estate. He appeals from the trial court’s grant of summary judgment in favor of appellee, Timothee Wilkin, a doctor involved in the decedent’s care. With the grant of summary judgment, the trial court dismissed the action with prejudice, finding that the original complaint was a nullity because it was filed before appellant’s letters of administration were issued by the county clerk and that the statute of limitations had run, making refiling impossible. We reverse and remand.
The decedent died on August 21, 2002, and, therefore, the statute of limitations expired on August 21, 2004. The order of appointment for appellant and the acceptance of the appointment were both filed on April 12, 2004. Although the order of appointment provided “that Letters of Administration shall be issued to said personal representative upon filing of Acceptance of Appointment,” no such letters were ever issued to appellant. On August 13, 2004, the complaint in this action was filed. On October 6, 2005, appellee filed his motion for summary judgment, contending that appellant lacked standing to bring the action because he filed the complaint prior to the issuance of letters of administration, that such letters remained unissued, and that the statute of limitations had expired. The trial court granted the motion for summary judgment, and this appeal followed. Appellant contends that the trial court erred in granting summary judgment, and we agree.
Standard of Review
The standard of review regarding summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entitled to judgment as a matter of law. Sparks Reg’l Med. Ctr. v. Blatt, 55 Ark. App. 311, 935 S.W.2d 304 (1996). The appellate court views all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. Even if none of the material facts are in dispute, however, if we cannot say that the appellee was entitled to judgment as a matter of law, then summary judgment is not appropriate. See id.
Here, it is undisputed that not all of the decedent’s heirs at law were named as plaintiffs in this action. Consequently, the complaint’s viability stands or falls on whether the appellant took the necessary steps to bring the action as personal representative of the estate. Arkansas Code Annotated section 28-40-102 (Repl. 2004), provides in pertinent part:
(b) The [probate] proceedings shall be deemed commenced by the filing of a petition, the issuance of letters, and the qualification of a personal representative. The proceeding first legally commenced is extended to all of the property in this state.
(Emphasis added.) In arguing that appellant lacked standing to bring the action, appellees depend entirely upon the fact that no letters of administration were issued prior to filing the complaint — and in fact have never been issued — and that the statute of limitations has now expired. The trial court accepted appellee’s position on the law, but we have concluded that it erred in doing so.
Act 438 of 2007 (codified as Ark. Code Ann. § 28-48-102 (Supp. 2007)) was approved on March 22, 2007, and it became effective on July 31, 2007. It was enacted for the purpose of clarifying the effect of a probate order and the purpose of letters of administration. The act specifically provides that “[l]etters of administration are not necessary to empower the person appointed to act for the estate,” and that “[t]he order appointing the administrator empowers the administrator to act for the estate, and any act carried out under the authority of the order is valid.” In Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710 (2007), our supreme court held that Act 438 was procedural, and, therefore, that it was intended to be applied retroactively. The court explained:
Until the enactment of Act 438, it has been well-settled law, since Ark. Code Ann. § 28-40-102(b) was enacted in 1949, that letters of administration are necessary to vest in a personal representative or special administrator the authority to sue or be sued. In Jenkins ..., our court explicitly stated that “[n]othing can be read into either [Ark. Code Ann. § 28-40-102(b)] or [Ark. Code Ann. § 28-40-104] which would authorize a personal representative to sue or be sued until such time as he has received letters of administration.” The Arkansas Court of Appeals reiterated the law in Filyaw..., with the pronouncement that “[u]ntil the issuance of the letters, appellant [personal representative] had no standing under Jenkins to file suit.’J ]
However, the General Assembly’s enactment of Act 438 repeals the Arkansas Probate Code’s long-standing provision establishing the legal commencement of a probate proceeding, ... by implication. While it is true that repeals by implication are not favored, . . . , a repeal by implication does transpire when there exists an “invincible repugnancy” between the earlier and the later statutory provisions.
Here, the later statute, Act 438 declares letters of administration to be unnecessary so long as there is an order appointing the administrator; whereas, the earlier statute, . . . conditions the legal commencement of a probate proceeding upon the issuance of letters.
Id. at 355-56, 266 S.W.3d at 714.
Consequently, in light of Act 438 of 2007 and the supreme court’s determination in Steward v. Statler, supra, that the act is to be applied retroactively, it is clear that it is the order of appointment, not the letters of administration, that empowers the personal representative to act on behalf of the estate. Here, the complaint was filed after the order of appointment was filed. Consequently, the trial court erred as a matter of law in dismissing the complaint. We therefore reverse and remand this matter to the trial court for reinstatement of the complaint.
Reversed and remanded.
Bird and Vaught, JJ., agree.
While it is unnecessary for us to state our position regarding what the “well-settled law” has been in this regard, we do note the discussion of this issue in the concurring opinion in Steward, supta, and, in particular, its discussion in footnote 5 concerning our court’s decision in Green v. Nunez, 98 Ark.App. 149, 253 S.W.3d 11 (2007). | [
-112,
-20,
-51,
28,
42,
34,
58,
-102,
82,
-125,
37,
83,
-81,
75,
29,
111,
118,
57,
113,
123,
-59,
-77,
95,
-120,
83,
-78,
-8,
-41,
34,
111,
-28,
-33,
76,
112,
10,
-107,
70,
74,
-45,
-42,
-50,
2,
-87,
108,
-39,
1,
48,
126,
88,
71,
-43,
94,
-29,
-81,
55,
66,
104,
40,
121,
-75,
-48,
-112,
-117,
5,
125,
23,
-93,
5,
-98,
-93,
88,
58,
-112,
49,
2,
-24,
112,
-74,
-126,
116,
107,
57,
8,
102,
99,
-96,
1,
-19,
-80,
-104,
15,
-66,
31,
-121,
-102,
24,
-53,
39,
-74,
-67,
124,
116,
14,
-4,
102,
-115,
29,
44,
15,
-50,
-42,
-79,
-113,
-16,
-100,
11,
-1,
-61,
116,
49,
-35,
-30,
92,
70,
51,
-101,
-98,
-14
] |
D.p. Marshall Jr., Judge.
Dirt work led to a dispute that became this case. Southeast Building Concepts was the general contractor for building South Arkansas Regional Health Center a new hospital in El Dorado. Glenn Mechanical was the second subcontractor to take on the dirt work. The circuit court held that the Southeast/Glenn contract, which Glenn drafted, governed the disputed work of undercutting for the hospital parking lot. Based on the existence of that contract, Judge Guthrie also rejected Glenn’s quasi-contract theories of recovery. Glenn’s appeal brings the case here.
I.
We affirm the circuit court’s decision that Southeast and Glenn made a contract that covered the disputed dirt work. Glenn bid on two subcontracts for this project: the heating, ventilation, and air conditioning work and the dirt work. It got the HVAC contract, and in due course completed all this mechanical work without any snags. Glenn did not get the dirt work subcontract initially. But when the company who did filed for bankruptcy after starting the job, Southeast asked Glenn to bid to finish it. Glenn did so. Southeast accepted the bid, which was $62,000.00 for specified tasks and a per-load price for undercutting — hauling dirt out of and into — the parking lot site. The specific number of loads was to be determined by written change order. The parties reduced their agreement to a contract, which Glenn wanted to write and did write. The contract was signed the day that Glenn began work. Because the dirt work needed to be done immediately, Southeast wanted Glenn on site as soon as possible, and their contract provided that time was of the essence.
The parties’ dispute turns on Article 4 of their contract. This provision is entitled “CHANGES IN THE WORK.” It states:
I. The Contractor and Subcontractor agree that the Contractor may add to or deduct from the amount of work covered by this Agreement, and any changes so made in the amount of Work involved, or any other parts of this agreement, shall be by a written amendment hereto setting forth in detail the changes involved and the value thereof which shall be mutually agreed upon between the Contractor and Subcontractor. The Subcontractor agrees to proceed with the Work as changed when so ordered in writing by the Contractor so as not to delay the progress of the Work, and pending any determination of the value thereof unless Contractor first requests a proposal of cost before the change is effected. If the Contractor requests a proposal of costs for a change, the Subcontractor shall prompdy comply with such request. Change Order Items Specifically include:
i. Demo of Wet Sandy Soil and Haul Offper cubic yard $6.50
ii. Haul in, Spread and Compact Select Fill per cubic yard $11.50
iii. Haul in, Spread and Compact “B” Stone per cubic yard $32.00
iv. Haul In, Spread and Compact SB-2 Stone per cubic yard $32.00
v. Lay Geo Textile Fabric (eq. Mirafi 140N) per 12' x 360' roll $825.00
II. The Subcontractor will make all claims for extra compensation and for extension of time to the Contractor promptly in accordance with this Article and consistent with the Contract Documents.
III. Not withstanding any other provision, if the Work for which the Subcontractor claims extra compensation is determined by the Owner not to entitle the Contractor to a Change Order or extra compensation, then the Contractor shall not be hable for any extra compensation for such Work, unless Contractor agreed in writing to such extra compensation.
The original subcontractor had left a big hole containing wet, sandy soil and standing water. At the request of Southeast’s job superintendent, Glenn therefore began undercutting the parking lot. Glenn’s witnesses testified at trial that the superintendent told them that a change order was in the works for the many loads of dirt that Glenn began hauling out and hauling in. Glenn worked for about a week and faxed an interim bill to Southeast for approximately $27,000.00 for undercutting. Meanwhile, Glenn requested and Southeast approved two change orders about unrelated dirt work on a driveway and a French drain. These change orders increased the fixed-price part of the contract to approximately $94,000.00.
Southeast did not respond immediately to Glenn’s interim bill for the undercutting. Glenn continued to haul dirt out and in, preparing the ground for the parking lot. After another week of work, Southeast rejected the first bill, and Glenn submitted a bill for its second week of undercutting. The total for all of Glenn’s undercutting work was approximately $64,000.00. Because Southeast refused to pay the bills, the dirt work stopped. Southeast and Glenn were unable to resolve their dispute; Glenn left the job; and Southeast contracted with a third company to finish the dirt work. Southeast also paid approximately $38,000.00 to a dozer company with whom Glenn had contracted to help on the undercutting.
The hub of the case is whether Glenn and Southeast had a contract about the undercutting. The circuit court’s conclusion that they did is not clearly against the preponderance of the evidence. Taylor v. Hinkle, 360 Ark. 121, 129, 200 S.W.3d 387, 392 (2004). Glenn contends otherwise, arguing that the contract is indefinite about the undercutting and that the parties’ conflicting testimony about whether the $62,000.00 base price covered the undercutting shows that no mutual agreement existed. E.g., Williamson v. Sanofi Winthrop Pharm., Inc., 347 Ark. 89, 98, 60 S.W.3d 428, 433-34 (2001) (contractual elements).
Glenn’s contract is definite enough and reflects mutual agreement. Southeast agreed to Glenn’s proposal about how to decide the amount of undercutting to be done at Glenn’s per-load price. The nature of this work necessarily contained some uncertainty. Exactly how much unstable soil needed to be removed and replaced with more solid material to provide an adequate base for the parking lot was a matter of judgment. Glenn’s project engineer testified that all of Glenn’s work was necessary to stabilize the ground. Other witnesses, however, testified that less undercutting would have been sufficient for this parking lot, which would not carry heavy loads. And one Southeast witness testified that he did not think that, if it had been given the choice, the Health Center would have agreed to pay for all the undercutting that Glenn eventually did.
The parties dealt with the uncertainty by subjecting the undercutting work to the change-order provision of their agreement with fixed load-in/load-out prices. Southeast was not on the hook for the undercutting until it approved the work in writing. Their contract stated that any changes from the base price “shall be by a written amendment hereto setting forth in detail the changes involved and the value thereof which shall be mutually agreed upon between [Southeast] and [Glenn].” This is a definite agreement about how the parties would decide exactly how much undercutting to do. No such writing about this work was ever executed.
This contract — which Glenn drafted — put Southeast in control: the general contractor had to approve the amount of undercutting in writing; if it did, then the parties’ contract gave Glenn the right to insist on payment from Southeast even if the Health Center ultimately refused to pay Southeast. Whether this allocation of authority and risk was wise is not the issue. This is the contract that Glenn proposed and Southeast accepted. They followed it when changing other tasks and substantially increasing the price of the other dirt work. And their contract governs their dispute about the undercutting.
Testimony from one of Southeast’s principals and its superintendent that they thought the base contract price covered all the undercutting was evidence of confusion or a unilateral mistake, but it is not a sufficient reason to hold that the parties’ express contract failed for lack of mutual agreement. Frazier v. State Bank of Decatur, 101 Ark. 135, 140-41, 141 S.W. 941, 943-44 (1911). As the circuit court found, Glenn knew that it needed Southeast’s written approval of the amount of undercutting. It expected that approval. But under the parties’ contract, Glenn must bear the consequences of not getting it.
II.
We also reject Glenn’s argument for a quasi-contractual recovery based on promissory estoppel or unjust enrichment. The basis of this argument is testimony that Southeast’s superintendent urged Glenn to do all the undercutting immediately and promised a change order. At trial, the superintendent denied this promise and his credibility was for the circuit court sitting as the fact-finder. Taylor, 360 Ark. at 129, 200 S.W.3d at 392. On the other side of the evidentiary scale, Glenn’s witnesses were experienced subcontractors who acknowledged that change orders are commonplace and that a company does extra work without one at its own risk. In any event, these disputed facts do not answer the contract question.
As the circuit court held, the parties had an enforceable written contract about the undercutting, and that contract prevents recovery on a quantum meruit basis. With exceptions not applicable here, “the law never accommodates a party with an implied contract when he has made a specific one on the same subject matter.” Lowell Perkins Agency, Inc. v. Jacobs, 250 Ark. 952, 959, 469 S.W.2d 89, 92-93 (1971). Glenn’s quasi-contract theories therefore fail as a matter of law. Taylor v. George, 92 Ark. App. 264, 274, 212 S.W.3d 17, 24-25 (2005) (promissory estoppel); Coleman’s Service Center, Inc. v. FDIC, 55 Ark. App. 275, 299, 935 S.W.2d 289, 302 (1996) (unjust enrichment).
The record supports the circuit court’s finding that both parties prevailed in some degree and presented cases of merit in good faith. Southeast’s refusal to come to final terms with Glenn about the amount of undercutting, the court held, was unreasonable and discharged Glenn from further performance. This breach barred Southeast from recovering the approximately $75,000.00 that it had to pay the third subcontractor to finish the dirt work. Southeast has not cross-appealed this ruling. The circuit court likewise noted that, although Southeast paid Glenn’s dozer subcontractor approximately $38,000.00, thereby relieving Glenn of this obligation, Southeast did not try to recover this expense from Glenn. Finally, the court declined to award attorney’s fees and costs to either party. In sum, Glenn’s assignments of error present no basis for reversing the circuit court’s careful resolution of all the issues.
Affirmed.
Hart and Bird, JJ., agree. | [
84,
122,
-44,
-20,
-114,
-128,
18,
-104,
85,
-96,
103,
93,
-81,
-26,
28,
99,
-93,
95,
113,
65,
-43,
-77,
3,
123,
-26,
-13,
113,
69,
-72,
111,
85,
31,
76,
40,
-62,
-27,
-26,
0,
-59,
88,
-114,
5,
-86,
106,
-7,
67,
52,
-86,
18,
15,
21,
-115,
-79,
36,
25,
-49,
110,
60,
125,
40,
65,
-7,
-104,
5,
111,
13,
-93,
101,
-100,
7,
-8,
78,
-112,
-67,
0,
-24,
115,
-74,
-106,
100,
67,
-69,
8,
98,
102,
32,
0,
-49,
-36,
-8,
22,
-66,
-99,
-90,
-122,
25,
59,
11,
-65,
22,
124,
22,
4,
118,
-10,
21,
31,
109,
23,
-50,
-48,
-62,
-49,
0,
-100,
-61,
-18,
2,
33,
100,
-49,
-94,
93,
71,
91,
-109,
30,
-117
] |
Sarah Heffley, Judge.
Appellant, Patricia (Rascoe) Roark, appeals the January 19, 2007, order of the Faulkner County Circuit Court, in which the court refused to enforce an agreement between the parties, which had previously been approved by the court, and established appellant’s child support obligation at $74 per week. The order also found appellant in arrears and granted appellee, the Office of Child Support Enforcement (OCSE), a judgment against appellant in the amount of $6,989.20. On appeal, appellant contends that the agreement entered into by the parties and approved by the court should be upheld and enforced, or, in the alternative, that her child support obligation should be set at $34.50 per week. We disagree with appellant’s contentions and affirm.
Appellant and Anthony Rascoe were divorced by decree filed December 14, 1992, and appellant was given custody of the parties’ son, J.R., born 1/26/1987, and daughter, B.R., born 1/21/1990. Mr. Rascoe was ordered to pay child support in the amount of $40 per week. In February 1998, this obligation was increased to $90 per Week. In June 1998, the parties’ son, J.R., was removed from his mother’s care by the Department of Human Services and placed with his father. An agreed temporary order, entered May 21, 1999, established that J.R. would remain with his father while B.R. would remain with her mother. The order also abated Mr. Rascoe’s child support obligation and stated that the issue of child support would be addressed at a later hearing, including the abatement of Mr. Rascoe’s child support obligation from the time J.R. was placed in his custody up until the entry of the May 21 order. After the hearing held January 21, 2000, the court ordered that “[n] either party shall pay child support” but did not specifically address the abatement of support from June 1998 until May 21, 1999. The order memorializing this decision was filed February 9, 2000.
On November 10, 2003, Mr. Rascoe filed a petition to change custody of B.R. from appellant to himself, which was granted on March 16, 2004. Appellant was ordered to pay child support in the amount of $69 per week. On January 26, 2005, J.R. reached the age of 18, and under Ark. Code Ann. § 9-14-237(a)(1) (A) (i) (Supp. 2005), an obligor’s duty to pay child support automatically terminates by operation of law when the child reaches 18 unless the child is still in high school. J.R. completed high school in December 2004; thus, appellant’s child support obligation was terminated when J.R. turned 18.
On February 4, 2005, OCSE filed a motion to intervene and a motion for citation for appellant’s failure to pay child support, alleging that she was in arrears in the amount of $3105. OCSE’s motion to intervene was granted, and another motion for citation was filed on May 16, 2005, alleging that appellant was $4278 in arrears. Appellant filed an answer to the motions in which she denied all allegations, asked for a reduction in her current child support obligation, and counterclaimed for an offset of any arrear-ages against arrearages owed by Mr. Rascoe.
According to the briefs, appellant and the attorney for OCSE appeared before the court on July 29, 2005, and announced that the matter had been resolved by agreement. No transcript of this hearing appears in the record, although there is a proposed order resulting from that hearing in OSCE’s supplemental addendum. This proposed agreement stated that appellant owed an arrearage of $3720, and Mr. Rascoe owed an arrearage of $6170, giving appellant a credit of $2450 against future support obligations. The proposed agreement also stated that appellant’s child support obligation would be reduced to $34.50 per week. The parties were apparently unable to agree on a final order, however, and the matter was again set for a hearing on January 20, 2006.
At that hearing, the attorney for OCSE announced that it was willing to “basically call it even . . . based on payments that have been made in the past, the amount of payments will resolve themselves to settle out any future support payments owed by [appellant].” OCSE suggested that it prepare an order dismissing the citations against appellant, zeroing out any balance owed by either party, and cancelling the wage-withholding order currently in effect. The court agreed; however, no written order was ever entered memorializing the agreement.
On May 4, 2006, OCSE filed a motion asking the court to find the agreed resolution to be of no effect and to find appellant in arrears in her child support obligation. OCSE contended that the agreement ignored the court’s May 21,1999 order that abated Mr. Rascoe’s support obligation and the February 9, 2000 order that stated Mr. Rascoe owed no child support arrearage. OCSE argued that the effect of the agreement was to bargain away B.R’s right to future support to her detriment, and the court had held no hearing to determine whether this agreement was in the best interest of B.R. To support its argument, OCSE cited Davis v. Office of Child Support Enforcement, 322 Ark. 352, 908 S.W.2d 649 (1995), in which our supreme court stated:
It has long been the law in Arkansas that the interests of a minor cannot be compromised by a guardian without approval by the court. It is not sufficient that a court be made aware of a compromise agreement and that it is agreeable to the guardian; rather, the court must make a judicial act of investigation into the merits of the compromise and into its benefits to the minor. Any judgment by a court that compromises a minor’s interest without the requisite investigation is void on its face.
The foregoing rules of public policy protecting minors have been applied to a child’s right to support from his parents. Moreover, this court has stated that the duty of support is a continuing one and one that cannot be permanently bargained away by a parent to the child’s detriment. Consequendy, the parents’ inability to permanendy bargain away the child’s right to support preserves the court’s power to modify an order to meet subsequent conditions.
Id. at 355-56, 908 S.W.2d at 651-52 (citations omitted).
A hearing on the motion was held on October 31, 2006. After hearing counsels’ arguments, as well as testimony from appellant, Mr. Rascoe, and Judy Kree, a regional manager for OCSE who had calculated appellant’s alleged arrearages, the court took the matter under advisement. In a letter opinion dated December 19, 2006, the court found that the earlier agreement of the parties could not be upheld under the authority of Davis, supra, noting that “the evidence does not support a determination that the agreement recited by [OCSE’s attorney] is in the best interest of the child” because it would have resulted in the relinquishment of several thousands dollars of child support owed by appellant. The court asked OCSE to prepare an order setting the agreement aside and making a finding of arrearage in conformity with OCSE’s calculations. An order to that effect was filed on January 19, 2007. Appellant now appeals to this court.
Our standard of review for an appeal from a child support order is de novo on the record, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Hill v. Kelly, 368 Ark. 200, 243 S.W.3d 886 (2006). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Matthews v. Matthews, 368 Ark. 252, 244 S.W.3d 660 (2006). We give due deference to the trial court’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. Id. In a child support determination, the amount of child support lies within the sound discretion of the trial court, and the lower court’s findings will not be reversed absent an abuse of discretion. Hill, supra. However, a trial court’s conclusions of law are given no deference on appeal. Id.
For her argument on appeal, appellant asserts that litigants should be able to rely on agreements, particularly those that are approved by the court, and that OCSE should be required to honor the agreement it had previously reached with appellant. Appellant contends that it would be “impossibly time-consuming for the Court to conduct a ‘best-interests hearing’ on each and every child support case that comes before it”; that the court depends on the parties, and particularly the OCSE and all its available resources, to properly reach an agreement; and that once an agreement has been reached and announced to the court, the matter should be settled.
We disagree with appellant’s assertion that the trial court was bound by the parties’ earlier agreement. Our case law has made clear that independent agreements concerning child support are not binding on the trial court, and the court always retains jurisdiction over child support as a matter of public policy. Alfano v. Alfano, 77 Ark. App. 62, 72 S.W.3d 104 (2002). In addition, no matter what an independent agreement states, either party has the right to request modification of a child support award. Id. And, pursuant to Davis, supra, the trial court was required to investigate the merits of the compromise and to determine its benefits to the minor, and without doing so, any order entered by the court would have been void on its face.
Accordingly, we find no error in the trial court’s refusal to follow the parties’ agreement. And while appellant also offers an alternative argument, that her child support obligation should be set at $34.50 per week, she bases this number on the agreement allegedly reached by the parties in July 2005, and does not develop any argument showing how the calculations used by OCSE were in error. We have already clarified that the trial court was not bound by any prior agreement made by the parties, and we have repeatedly held that we will not address an argument on appeal when the appellant has not sufficiently developed the argument and it is not apparent without further research that the appellant’s point is well taken. Holt Bonding Co. v. First Federal Bank of Arkansas, 82 Ark. App. 8, 110 S.W.3d 298 (2003). Therefore, we also affirm the trial court’s order establishing appellant’s current child support obligation and amount of arrearage.
Affirmed.
Gladwin and Robbins, JJ., agree.
The exact circumstances surrounding this removal are not clear, although the transcript of a hearing held January 21,2000, indicates the situation involved anger management issues and J.R.’s acting out toward both his sister and his mother. | [
-48,
105,
-11,
124,
40,
-96,
19,
48,
-38,
-77,
-73,
-45,
-85,
-26,
16,
105,
35,
107,
96,
120,
-63,
-77,
37,
96,
-30,
-13,
-71,
-41,
-65,
76,
-27,
-42,
89,
56,
-30,
-43,
102,
-54,
-81,
80,
14,
-125,
-117,
-11,
81,
70,
48,
113,
18,
15,
53,
-114,
-25,
44,
25,
-29,
40,
46,
93,
-85,
-36,
-14,
-38,
7,
95,
5,
-79,
116,
-104,
100,
74,
14,
-100,
57,
2,
-8,
115,
-90,
-122,
116,
72,
-103,
-119,
116,
98,
3,
60,
-3,
-40,
-120,
46,
-2,
-103,
-90,
-46,
120,
43,
15,
-73,
-106,
124,
-44,
31,
-4,
120,
5,
109,
-28,
2,
-114,
-44,
-79,
-116,
-104,
0,
2,
-25,
75,
48,
101,
-49,
-70,
93,
-57,
59,
-109,
-34,
-38
] |
Brian S. Miller, Judge.
This is an appeal of an adoption decree granted to the petitioners, Wendell Ray Lane and Davelynn Felkel Lane, permitting Wendell to adopt Davelynn’s minor son whom she conceived with Jason Powell. Powell argues on appeal that the trial court erred in granting the Lanes’ petition for adoption because: (1) Powell and Davelynn are not only the minor’s biological parents, but he and Davelynn are also married and their marriage has not been dissolved; (2) he was not given an opportunity to cure any failure to support or failure to have meaningful contact with the minor; (3) there was not clear and convincing evidence that he failed significantly, and without justifiable cause, to communicate with the minor; and (4) there was not clear and convincing evidence that he faded significantly, and without justifiable cause, to support the minor.
We agree with Powell that he and Davelynn were validly married and that the trial court erred in finding otherwise. In that the trial court’s finding that Powell and Davelynn were never married was the determinating factor regarding the remaining issues, we reverse and remand all issues presented.
Background
It is undisputed that, on December 31, 1996, Davelynn and Powell went to the First Baptist Church in Pencil Bluff where they were married by Reverend Bruce Tidwell. The ceremony was traditional in that Powell stood at the head of the church and Davelynn walked down the aisle in a creme-colored dress. When Davelynn reached the front of the church, she and Powell exchanged marriage vows while family and friends witnessed the ceremony. Davelynn’s mother was among those present. Dave-lynn was pregnant by Powell at the time of the ceremony and later gave birth to a son (the minor) on June 9, 1997. She and Powell lived together as husband and wife from the date of ceremony until their separation in the Spring of 2004, almost eight years.
It is also undisputed that Davelynn and Powell obtained a marriage license before the ceremony. The marriage license, however, was not signed by Reverend Tidwell and was never returned to the county clerk for filing. Finally, Davelynn and Powell have never obtained a divorce.
In case number DR-2004-51, Davelynn petitioned the Montgomery County Circuit Court in June 2004 to establish paternity. Powell failed to answer and a default judgment was entered on July 23, 2004. The default judgment found that Powell was the minor’s natural father; set a visitation schedule; required Powell to pay child support in the amount of seventy-five dollars per week; and required Powell to pay one-half of the minor’s medical expenses. Powell moved to set aside the default judgment, but that motion was denied.
Davelynn married Wendell on September 4, 2004. On March 28, 2006, they petitioned the Polk County Circuit Court for a decree allowing Wendell to adopt the minor without the consent of Powell. The case was assigned case number PR-2006-33. Davelynn consented to the adoption and alleged that Powell had failed significantly to communicate with or support the minor for at least one year. Powell denied the allegations and refused to consent to the adoption.
On May 12, 2006, Powell filed a petition for divorce against Davelynn, and Davelynn moved to dismiss the petition. Powell also moved, again, to set aside the default judgment. The cases were consolidated in the Polk County Circuit Court and heard on July 5, 2006.
At the trial, Davelynn testified that she was pregnant at the time of the wedding and that the marriage to Powell was a bad decision that she regretted. She further stated that she and Powell never intended to file the marriage license or to become legally married. In addition to providing testimony regarding the marriage ceremony with Powell, Davelynn testified that she and Wendell were married in September 2004, in Branson, Missouri. She further stated that Powell had not paid child support since December 2004 and he had not paid any part of the minor’s medical bills.
Powell testified that he was his son’s primary shot-giver and the primary medication-giver during the first eight years of the minor’s life. He admitted that he stopped paying support to Davelynn through the Child Support Clearinghouse; however, he denied that he quit paying support because he continued to deposit the payments into a fund that he was maintaining for the minor. He claimed that he stopped paying money to the clearinghouse because he knew that doing so would prod the Child Support Enforcement Office to bring him into court. At that time, he could resolve all of the other issues with Davelynn.
Powell’s sister-in-law, Melissa Powell, testified that she witnessed the marriage ceremony in which Powell and Davelynn were married. She said that there was no question that Powell and Davelynn were married because “[w]e had a wedding, they kissed, they went down the aisle, they said, I do. That’s what I seen.” She testified further that Powell and Davelynn appeared to be happy on their wedding day.
Wendell Lane testified that he and Davelynn were married on September 4, 2004, and have one child together. He further stated that he wished to adopt the minor, who was the biological child of Powell and Davelynn; that the minor had resided with him since his marriage to Davelynn; and that he and Davelynn have received no financial support from Powell since their marriage.
The trial court dismissed Powell’s divorce petition. In doing so, the court ruled that Davelynn and Powell were never married because they failed to have the preacher, who performed their marriage ceremony, sign the marriage license and they also failed to file it with the county clerk.
The court then granted the adoption petition of Davelynn and Wendell. In doing so, the court held that Powell’s consent to the adoption was not required because, in excess of one year, he failed significantly, and without justifiable cause, to support the minor. Powell’s motion for reconsideration was denied and he filed a timely appeal.
The Marriage of Davelynn and Powell
We will accept the trial court’s interpretation of a statute when no error is shown; however, we are not bound by the trial court’s interpretation of the law. Fryar v. Roberts, 346 Ark. 432, 57 S.W.3d 727 (2001). Here, the circuit court erred in concluding that Powell and Davelynn never entered into a valid marriage. In so ruling, the court misinterpreted Ark. Code Ann. § 9-11-218 (Repl. 2002), which provides that a person obtaining a marriage license is required to return the license to the county clerk within sixty days from the date the license is issued. The statute also provides that the license must be duly executed by a person authorized to solemnize marriage in this state. Id.
The key to a valid marriage is solemnization, not licensing. Solemnization is defined as “[t]he performance of a formal ceremony (such as a marriage ceremony) before witnesses, as distinguished from a clandestine ceremony.” Black’s Law Dictionary 1427 (8th ed. 2004). The solemnization statute provides that a marriage is invalid unless there is solemnization, performed by some person authorized by statute to do so. See Fryar, supra (citing Furth v. Furth, 97 Ark. 272, 133 S.W. 1037 (1911)).
The marriage licensing statute, however, is merely directory and is neither mandatory nor vital to the validity of a marriage. Fryar, supra. The only remedy provided in the marriage licensing statute for noncompliance is that the one-hundred-dollar bond required by the statute shall remain in effect. Id. There is “no statute providing that a marriage is void where no license is obtained.” Id. (quoting DePotty v. DePotty, 226 Ark. 881, 882, 295 S.W.2d 330, 331 (1956)). Moreover, the failure to return a marriage license does not void the marriage. Id. (citing Thomas v. Thomas, 150 Ark. 43, 53, 233 S.W. 808 (1921)).
A validly executed marriage license, that is filed in the county clerk’s office, is presumptive proof of marriage. Thomas, supra. When this does not occur, the party wishing to prove a marriage must do so by introducing evidence of the couple’s reputation as a married couple, their declarations and conduct, and other circumstances accompanying their relationship. Id.
This case is similar to the cases of Fryar, supra, and Thomas, supra, in which our supreme court held that the failure to file a marriage license does not void an otherwise valid marriage. In those cases, the supreme court held that valid marriages existed because they were solemnized by wedding ceremonies, although marriage licenses were not filed in either case. Id. In Thomas, supra, the supreme court noted that the couple also lived together for eight years after the ceremony and held themselves out as married. Id.
Powell and Davelynn were married on December 31, 1996, in a church ceremony performed by a preacher. They publicly said their marriage vows in a solemn ceremony that was conducted with all appropriate ritual. Not only was the ceremony witnessed by family and friends, but Powell and Davelynn also conducted themselves as a married couple and lived together as husband and wife for seven years after the ceremony. Their failure to file the marriage license does not void their marriage.
The dissent asserts, sua sponte, that Powell failed to rebut the presumption that the marriage between Davelynn and Wendell was valid. This assertion, however, was neither argued by the parties nor addressed by the trial court below. Moreover, it does not hold up under scrutiny because the marriage of Powell and Davelynn clearly rebuts any presumption of validity that may have attended Davelynn and Wendell’s marriage.
The dissent further asserts, sua sponte, that Powell failed to prove his marriage to Davelynn because he introduced no evi dence regarding the licensing of the preacher who performed the ceremony. This assertion was neither argued by the parties nor addressed by the trial court below. Further, this argument contradicts the holding in Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808 (1921). In Thomas, the supreme court held that the parties were validly married, although there was no testimony as to the credentials of the preacher who performed the wedding ceremony. Id.
Indeed, the credentials of the preacher in Thomas were less known than those of the preacher in the present case. In Thomas, Jas. Thomas and Alsie Thomas were residents of Ashley county before Alsie moved to Ft. Smith. Id. Jas. later traveled to Ft. Smith with a marriage license issued by the Ashley County Clerk and met Alsie at the train station. Id. The Arkansas Supreme Court set forth the circumstances surrounding their marriage ceremony as follows:
[A]s they walked along the street from the train they met an old negro preacher named Mooney, who used to live in Ashley county, and Jas. Thomas procured him to marry them. Jas. Thomas turned over the marriage license to the old preacher, and they never saw it afterwards. The marriage license was never returned to the clerk by the preacher . . .
Id. at 52, 233 S.W. at 811. At the trial, it was shown that the “old colored preacher” whom Alsie claimed had performed the marriage ceremony had died before the date of the ceremony. In holding that the marriage between Jas. and Alsie was valid, the court held that:
[i]t may be that [Alsie] was mistaken in the preacher who married them, but this did not overcome her testimony to the effect that they were married by a minister of the Gospel, after Jas. Thomas procured a license therefore provided by the statute.
Id. The court further noted that “marriage may be proved in civil cases by reputation, the declarations and conduct of the parties, and other circumstances usually accompanying that relation.” Id. at 53, 233 S.W. at 811.
There is no question but that Powell and Davelynn obtained a marriage license and were married in a Baptist church by a “minister of the Gospel,” whose credentials were never questioned. See Thomas, supra. Moreover, they lived together as husband and wife, with their son, for more than seven years after the marriage ceremony. See id. These factors, along with all of the other undisputed evidence set forth above, show that Powell and Davelynn were validly married on December 31, 1996.
Finally, the dissent asserts, sua sponte, that Davelynn was seventeen at the time of the marriage ceremony and that there is no evidence in the record that her parents consented to the marriage. This assertion, however, was neither argued by the parties nor addressed by the trial court below. In fact, it was specifically waived by Davelynn at trial when, discussing her age at the time of the marriage, she testified that “I don’t claim that I didn’t have capacity to marry.” Therefore, relying on this assertion is inappropriate.
For the reasons set forth above, we hold that Powell and Davelynn were validly married, and we reverse the contrary ruling of the trial court. A review of the court’s order shows that all of the court’s remaining rulings were based on its erroneous conclusion that Powell and Davelynn were never married. Therefore, we will not address the remaining issues but remand this case to permit the trial court to make further findings in accordance with this opinion.
Reversed and remanded.
Gladwin, Robbins, Glover and Marshall, JJ., agree.
Pittman, C.J., Vaught, Heffley and Baker, JJ., dissent. | [
-108,
-92,
-36,
92,
-102,
-63,
74,
28,
83,
-93,
99,
83,
-81,
-34,
8,
105,
-15,
43,
113,
123,
-47,
-77,
23,
65,
-16,
-77,
-101,
94,
-80,
109,
-10,
119,
92,
96,
10,
-43,
70,
-116,
-59,
-44,
-122,
-126,
59,
76,
-47,
-61,
36,
54,
30,
15,
21,
-98,
-106,
40,
60,
70,
104,
46,
-45,
57,
-48,
56,
-97,
23,
-50,
12,
-95,
-123,
-80,
-91,
122,
106,
-104,
48,
1,
-24,
82,
-90,
-122,
116,
75,
13,
13,
117,
-30,
0,
77,
-3,
-7,
-119,
-114,
62,
-71,
-89,
-102,
57,
97,
45,
-65,
-68,
124,
84,
14,
124,
110,
12,
31,
-28,
40,
-50,
-106,
-127,
-51,
48,
-36,
3,
-13,
68,
48,
113,
-57,
-28,
85,
103,
49,
-45,
-98,
-5
] |
Karen R. Baker, Judge.
Appellant Rebecca Chandler, a certified residential appraiser, appeals from an order of the Pulaski County Circuit Court affirming an order by appellee Arkansas Appraiser Licensing & Certification Board. The Board suspended Chandler’s license for six months, to be followed by a six-month probationary period. The Board also ordered Chandler to pay a civil penalty of $2,000 and complete two remedial courses and examinations. Chandler raises three points for reversal. We affirm.
Background
The Board received a March 28, 2001, letter from the Arkansas Securities Department requesting review of several appraisals that Chandler prepared for Guaranty Lending, Inc., resulting from the Securities Department’s investigation into Guaranty, together with a letter to the Securities Department from another appraiser, Tom Ferstl. The Board also received a referral from Fannie Mae concerning one of Chandler’s appraisals.
On May 31, 2002, the Board served an order and notice of hearing on Chandler, alleging that Chandler had violated certain provisions of the Uniform Standards of Professional Appraisal Practice (Standards). Arkansas Code Annotated section 17-14-305(a)(1) (Repl. 2001) requires that appraisers comply with the Standards. Among other things, the Standards require that the appraiser not commit a substantial error of omission or commission that significantly affects an appraisal; not render appraisal services in a careless or negligent manner, such as by making a series of errors that, although individually might not significantly affect the results of an appraisal, in the aggregate affect the credibility of those results; analyze any current listing of the property, if available to the appraiser in the normal course of business; and analyze any sales within one year for residential property. In addition, an appraiser must clearly and accurately set forth the appraisal in a manner that will not be misleading and contains sufficient information to enable the intended user to understand the report properly. The Board conducted a hearing on May 20, 2003.
The Evidence
Jim Martin, the Board’s executive director, testified that the Board’s investigation was prompted by the letter from the Securities Department and another letter from Ferstl. He said that the normal procedure was to notify an appraiser within a reasonable time that a complaint had been filed. He admitted that Chandler was not promptly notified because the Securities Department indicated that they would not proceed until the FBI completed its investigation into Guaranty. Martin stated that the Board did likewise and did not notify Chandler, despite a “mandate” that the Board should not allow complaints to remain unresolved for more than one year. He said that he considered the FBI’s involvement to be an unusual circumstance. After a meeting with two FBI agents in May 2002, Martin said that the Board was allowed to proceed with its investigation of Chandler. Martin stated that, after a preliminary investigation and a response from Chandler’s attorney, two Board members found probable cause to employ investigators to review Chandler’s appraisals at issue. This review was completed in February 2003, and Martin said that the decision was made to proceed with a hearing before the full Board.
Jay Hall, a licensed appraiser engaged by the Board to review three of Chandler’s appraisals, testified that he conducted his review in accordance with the Standards. Regarding the appraisal of 1023 South Madison, he stated that Chandler failed to note a garage in her appraisal, failed to notice settlement problems, and misstated that the windows were wooden when they were aluminum. In his opinion, this resulted in Chandler’s committing a substantial omission that significantly affected her appraisal. He also stated that Chandler further violated the Standards by failing to disclose to Fannie Mae sales data on the comparables used in the appraisal. Hall stated that, because of the comparables Chandler used, her valuation was higher than it should have been and, thus, misleading. On cross-examination, he admitted that his review contained mistakes, such as his noting that the central heat and air did not work when only the central air was inoperable. He also noted that Chandler’s report listed a gravel driveway while his report listed a concrete driveway when, in reality, it is a concrete driveway covered with gravel.
In his review of Chandler’s appraisals of 1602 Welch and 2909 John Barrow Road, Hall stated that Chandler’s appraisals were rendered in a careless or negligent manner because she made a series of errors that, when considered in the aggregate, would affect the credibility of the appraisal. He stated that Chandler’s effective age of each home was too low and that the comparables used were not representative of the subject properties. He admitted that he was not able to inspect the interiors of either subject property. Hall pointed out other problems with the comparables. He admitted that the passage of time between the appraisal and the review is a factor in the accuracy of the review. Hall also stated that Chandler violated the Standards by listing, but failing to analyze, the $58,000 sales price on the Welch Street property.
Susan Benson, the other appraiser engaged by the Board, testified that she reviewed Chandler’s appraisals of 1305 Booker, 5008 West 31st Street, and 5120 West 31st Street in accordance with the Standards after obtaining data from the relevant time period. She concluded that Chandler did not analyze all of the sales contracts concerning the Booker property. She also noted that Chandler used comparables that were in superior neighborhoods to the subject property and that this would significantly affect the appraisal. Concerning Chandler’s appraisals of the West 31st Street properties, Benson stated that Chandler again used comparables from superior neighborhoods. She noted that it was a “high crime area,” which reduces property value. She noted that Chandler failed to report a fireplace on one comparable or a basement on another but stated that these omissions would not affect the credibility of Chandler’s reports. She also stated that Chandler’s effective age for the homes was too low and that she failed to properly analyze neighborhood characteristics.
Although she testified that she was familiar with the Fannie Mae guidelines, Benson stated that she did not consider them applicable in conducting her reviews. She also described the neighborhoods as “high crime” even though Fannie Mae guidelines prohibit the use of terms that could be considered racial stereotypes. She admitted that she did not inspect the interiors of the homes. In her opinion, Chandler’s comparables from superior neighborhoods resulted in a higher value being shown and were thus misleading.
During her testimony, Chandler stated that she believed that her rights had been violated and that she was not given the opportunity to informally discuss the matter prior to proceeding to a hearing. She stated that, during the time covered by the investigation, she was under pressure because of family and professional obligations but that she conducted approximately 750 appraisals in 2000. She was able to complete such a large number of appraisals with the assistance of five appraisers whom she was mentoring and training. She stated that she personally inspected five of the six properties under scrutiny, the Welch Street property being inspected by one of her trainees. She also described her usual practice in obtaining data for an appraisal. She stated that she has changed some of her methods as a result of the investigation. Chandler stated that she was familiar with the Standards and the Fannie Mae guidelines and that she tries not to use comparables that do not meet those guidelines. She denied that Guaranty put pressure on her that her appraisals be for a minimum amount.
Chandler stated that she believed her appraisals to be credible but admitted to making mistakes by not including all relevant sales history. She also stated that the review appraisers also made mistakes in their reports, including violation of federal law. As an example, she admitted to not analyzing the sales contracts on the subject properties, which she said is an obvious violation of the standards. Other examples of mistakes she made included a mistake in the cost approach to the appraisal on 5120 West 31st Street and by not reporting all sales history as required by the Standards. She also conceded that pictures of some of the comparables showed that they appeared to be in better condition than the subject properties.
The Board found Chandler guilty of violating the Standards and imposed punishment. Following this court’s remand, the Board held another hearing on February 14, 2006, and adopted more specific findings of fact. Those findings explained in great detail the problems revealed with each of Chandler’s appraisals at issue. The final finding was that Chandler had provided her client with appraisals containing misleading statements, omissions, and inconsistencies. The findings were prepared by Jim Martin from the notice sent to Chandler in May 2002. The Board also adopted the same punishment it had previously imposed — suspension of Chandler’s license for six months, to be followed by a six-month probationary period, payment of a civil penalty of $2,000, and completion of two remedial courses and examinations. Chandler again sought judicial review. The circuit court affirmed the Board, and this appeal followed.
Standard of Review
It is not this court’s role to conduct a de novo review of the circuit court proceeding; rather, our review is directed at the decision of the administrative agency. Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). When reviewing administrative decisions, we review the entire record to determine whether there is any substantial evidence to support the administrative agency’s decision, whether there is arbitrary and capricious action, or whether the action is characterized by abuse of discretion. Arkansas Dep’t of Human Servs. v. Schroder, 353 Ark. 885, 122 S.W.3d 10 (2003).
To determine whether a decision is supported by substantial evidence, we review the whole record to ascertain if it is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. To establish an absence of substantial evidence to support the decision, the party challenging the decision must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusions. Id. Substantial evidence is valid, legal, and persuasive evidence. Id. To set aside an agency decision as arbitrary and capricious, the party challenging the action must prove that it was willful and unreasoned, without consideration and with a disregard of the facts and circumstances of the case. See Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980).
Arguments of Appeal
Chandler first argues that the Board’s decision was based on unlawful procedure that prejudiced her rights. During her testimony, Chandler asserted that her rights had been violated but did not specify how the violations occurred. She now asserts several procedural violations that allegedly occurred, such as the Board’s failure to follow its own rules in failing to properly and timely notify her of the complaint made by the Securities Department and the Board’s using stale evidence in the form of appraisals made by investigators for the Board approximately two years after she performed the appraisals under scrutiny.
According to Chandler, the Board violated its own rules by considering the letter from the Arkansas Securities Department to be a “complaint” to be investigated because the letter did not state the issues of the complaint and the dates on which the events leading to the complaint occurred, as required by the Board’s rules. Where the agency’s failure to follow its own procedural rules is urged on appeal, the applicable question on review is “whether the [Board’s] decision is based upon unlawful procedure.” Stueart v. Arkansas State Police Comm’n, 329 Ark. 46, 50-51, 945 S.W.2d 377, 379 (1997). The Board’s investigation of Chandler was proper because Ark. Code Ann. § 17-14-206 (Repl. 2001) allows the Board, after notice and a hearing, to take disciplinary action against an appraiser on its own motion, with or without a “proper” complaint. It is undisputed that the Board sent Chandler an order and notice of hearing identifying the date of the hearing and the allegations against her. Further, the Board did receive a proper complaint from Fannie Mae concerning one of Chandler’s appraisals.
For the next part of this point, Chandler argues that the Board failed to timely inform her of the “complaint” from the Securities Department and that this prejudiced her rights. As noted above, the Board sent Chandler a proper order and notice of hearing setting forth the charges against her. Jim Martin testified that the Board attempts to follow a guideline that complaints not be allowed to remain unresolved for more than one year. However, the guideline or “mandate” is not part of the governing statutes or the Board’s own rules. The only statutory authority imposing a time limit on the Board’s investigations of appraisers is Ark. Code Ann. § 17-14-206(b) (Supp. 2007), which was enacted in 2005 and places a three-year limitation on investigations. Chandler makes no argument concerning this statute. Further, Martin stated that the request by the Securities Department and the FBI that the investigation be delayed while the FBI proceeded with its investigation constituted unusual circumstances warranting the delay.
As a further part of this point, Chandler argues that Hall and Benson made errors in their reviews of her appraisals and that these errors render the Board’s acceptance of their testimony arbitrary and capricious. Chandler, as the party challenging the Board’s decision, has the burden of proving an absence of substantial evidence. Williams v. Arkansas State Bd. of Physical Therapy, 353 Ark. 778, 120 S.W.3d 581 (2003). To establish an absence of substantial evidence to support the decision, the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Id.
Chandler points out that Hall and Benson admitted that they did not inspect the interiors of all six homes they reviewed. Further, Hall admitted that he had missed some items such as one property having a concrete and gravel drive that he had labeled a concrete drive. He also stated that there were typographical errors in his report. Chandler also argues that, because Benson’s reviews used the term “high crime area,” Benson engaged in discriminatory “redlining” that is prohibited by state and federal law and, therefore, her reviews cannot constitute substantial evidence to support the Board’s decision.
The fact that Hall and Benson made mistakes in their reviews goes to the weight to be given to their reviews and explanatory testimony; nevertheless, the reviews provided some evidence from which the Board could conclude that Chandler violated the Standards. Their testimony and reviews document the errors Chandler made in the six appraisals at issue. Even if we did not consider Benson’s testimony, it would still leave Hall’s testimony to support the Board’s action. Further, Chandler admitted to a violation of the Standards in that she did not analyze the sales contract on one of the subject properties, as well as her agreement that pictures of at least one of the comparables appears to support the conclusion that the comparable was in superior condition to the subject property. It is the Board that determines the weight to be given to the evidence. McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999). In reviewing the record, we give the evidence its strongest probative force in favor of the agency’s ruling. Arkansas Contractors Licensing Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001). We conclude that there is substantial evidence to support the Board’s decision.
For her second point, Chandler argues that the Board violated Ark. Code Ann. § 25-15-210(a) (Repl. 2002) when it adopted the revised findings of fact without first reviewing the transcript of the proceedings before voting in this case. This issue is not preserved for our review. At the remand hearing, Chandler presented a document containing several objections to what she perceived to be violations of her rights. Nowhere mentioned in those objections is an objection to the Board members’ not having reviewed the earlier proceedings prior to adopting the revised findings. Our supreme court has held that the failure to object because the members of an administrative body had not reviewed the transcript prior to voting on the matter precludes judicial review of the issue. Ford Motor Co. v. Arkansas Motor Vehicle Comm’n, 357 Ark. 125, 161 S.W.3d 788 (2004).
Chandler’s third and final point challenges several of the Board’s revised findings as not specific enough, not supported by the record, not constituting violations of the Standards, not affecting valuation, or misleading. Chandler focuses on each sentence in the Board’s findings; (however, we do not engage in a de novo review of the Board’s actions, and are not permitted to do so under the Administrative Procedure Act. Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999). Chandler argues that, at most, the evidence proves that she made some mistakes in her appraisals and that it is human to make mistakes. However, the Board cannot discipline Chandler for merely making mistakes unless they demonstrate incompetence or are violations of the statutes and regulations pertaining to appraisers. See Ark. Code Ann. § 17-14-206(a)(4) (Supp. 2007). Instead, the focus should be on the Board’s conclusion that Chandler violated the Standards or other Board rules and regulations. See Tomerlin v. Nickolich, 342 Ark. 325, 27 S.W.3d 746 (2000). Chandler admitted that she had violated the Standards in at least one instance by failing to properly analyze the sales contract of one property as well as her agreement that some of the comparables she used appear to be superior to the subject properties. Therefore, the Board’s decision is supported by substantial evidence.
Affirmed.
Glover and Heffley, JJ., agree.
We remanded Chandler’s first appeal to the Board to make sufficient findings to allow proper review of its actions. Chandler v. Arkansas Appraisers Licensing & Certification Bd., 92 Ark.App. 423, 214 S.W3d 861 (2005).
The Board has also adopted the Standards as part of its rules by reference.
Section 25-15-210(a) provides as follows:
When, in a case of adjudication, a majority of the officials of the agency who are to render the decision have not heard the case or read the record, the decision, if adverse to a party other than the agency, shall not be made until a proposal for decision is served upon the parties and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the officials who are to render the decision. The proposal for decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary thereto, prepared by the person who conducted the hearing. | [
114,
106,
-36,
-68,
9,
64,
58,
-86,
66,
-39,
-29,
83,
111,
-50,
21,
47,
-62,
45,
-75,
104,
-41,
-78,
51,
104,
98,
-46,
-103,
-43,
-72,
127,
116,
-106,
72,
48,
-30,
-43,
66,
-96,
-49,
88,
14,
7,
59,
101,
-39,
64,
48,
43,
18,
15,
-95,
-74,
-77,
45,
29,
75,
109,
44,
-5,
61,
81,
-71,
-86,
29,
111,
21,
17,
101,
-104,
7,
-40,
42,
-112,
56,
2,
-23,
115,
22,
-62,
84,
79,
59,
13,
124,
102,
-127,
8,
-57,
-72,
-84,
47,
118,
-113,
-89,
-46,
73,
65,
9,
-74,
-108,
108,
18,
36,
-4,
102,
-124,
95,
108,
-123,
-50,
-106,
-79,
6,
69,
-100,
19,
-17,
-41,
16,
116,
-51,
-30,
93,
-98,
115,
27,
-114,
-13
] |
Josephine Linker Hart, Judge.
Eugene Bilo appeals the trial court’s finding that he diverted a natural watercourse from his property onto the land of El Dorado Broadcasting Company (EDB). Bilo argues that he diverted surface water, which the common-enemy doctrine allowed him to do without incurring liability. He also argues that the trial court did not provide objective criteria to enforce the judgment. We affirm.
Bilo’s property is a rectangular tract located at the corner of Timberlane Drive on the east and Hillsborough Road on the south in El Dorado. EDB owns the land to Bilo’s west. The area is primarily commercial with some residential use to the north. The topography is such that the land slopes downward from the north and west toward the parties’ tracts and the intersection. Water has historically flowed from these upland areas onto Bilo’s tract, continuing south through a culvert under Hillsborough Road, then back to the east through culverts under Timberlane Drive. Before Timberlane was constructed, the water ran through a broad valley south of Hillsborough. According to EDB’s owner, Ross Partridge, Bilo placed land fill on his (Bilo’s) tract and diverted this water onto EDB’s land, endangering EDB’s broadcast tower and guy anchor. EDB sued Bilo on May 10, 2005, to restore the natural water flow.
The evidence at trial showed that, when Bilo began developing his property in 2004 or 2005, he placed land fill on virtually his entire tract, including along his border with EDB- Photographs show that the fill was made up of large mounds of dirt and shards of concrete and that it elevated Bilo’s tract considerably higher than EDB’s. Before the fill was placed, Bilo’s tract was a swampy lowland, containing willow trees, mud, and beaver dams. Ross Partridge testified that, prior to Bilo’s fill activities, small rainfalls did not cause water to flow onto EDB’s land, and only twenty to twenty-five percent of water from heavy rainfalls did so. But, he said, after Bilo’s placement of the land fill, one hundred percent of the upland water flowed onto EDB’s property. Partridge feared that the increased water flow would weaken the foundation of EDB’s tower. He told the court that he was not asking Bilo to remove the land fill but to put in a ditch or culverts. He referred, as an example, to a large ditch constructed by First Financial Bank, located south across Hillsborough. This ditch controlled the flow of water as it made its way southward.
Robert Edmonds, the city of El Dorado’s public works director, testified that this locale was a significant drainage area with enough flow to entice beavers to “do their work” building dams. He testified that the city removed beaver dams from the Bilo tract in approximately 2003 because “through that creek bottom there is a flood plain” and “when the creek is obstructed . . . the base flood [level] then rises.” The water flow was restored after the dams were eradicated. But, Edmonds said, about a year later, Bilo “started hauling fill in there and filling up the whole bottom.” Edmonds received several calls asking “why this marsh land was being filled in.” He contacted Bilo and told him the property should be “culverted.” Bilo thought the city should take care of the culverts, and he continued to fill the land. Edmonds said that water did not percolate through the fill. Rather, the fill operated like a dam or levee, and water now flowed between the Bilo tract and the EDB tract at an elevation lower than the fill. The drainage situation was worse, he stated, than when the beaver dams were there, but culverts or ditches could be used on Bilo’s land to address the problem. Edmonds said, “you just can’t put fill in the water way.”
Bilo testified that the area in question was in a flood plain, was a significant drainage area, and was, at least in part, a “wetland.” He sought a permit from the Corps of Engineers to do the fill work after the Corps informed him that it was investigating “a discharge of fill material into a wetland associated with an unnamed tributary of Bayou de Loutre.” Bilo’s application listed the Bayou de Loutre as the body of water connected with the project. Thereafter, the Corps issued the permit authorizing Bilo to discharge fill material “into waters of the United States associated with the construction of a commercial development.” The permit expressly stated that it did not authorize work that could adversely affect adjacent property. Bilo testified that he was merely filling in his property as a former owner had done to prevent erosion, though he said that he did “elevate” the fill by a few additional feet. He also said that he intended for the fill to slope toward Timberlane on the east so that the water would flow onto the curb of the street. He denied any damage to EDB’s land. Yet, he agreed that he was in no position to dispute Partridge’s testimony that more water now flowed onto EDB’s property.
The court found that the drainage across Bilo’s land was part of a natural watercourse and that Bilo’s diversion of water onto EDB’s property was unreasonable. Bilo was enjoined “from further fill activities” on the west side of his property and was ordered to construct, at his own expense, “drainage facilities to prevent no more than 20% of the flow of water” onto EDB’s land. If Bilo chose to construct the drainage ditch on the west side of his tract, EDB was to contribute twenty percent of the land required. Bilo appeals from that ruling.
This is a case in equity involving the issuance of an injunction, and our review is therefore de novo. See generally Ark. Game & Fish Comm’n v. Sledge, 344 Ark. 505, 42 S.W.3d 427 (2001); Clark v. Casebier, 92 Ark. App. 472, 215 S.W.3d 684 (2005). We review the trial court’s decision to award injunctive relief for an abuse of discretion, see United Food & Comm. Workers Int’l Union v. Wal-Mart Stores, Inc., 353 Ark. 902, 120 S.W.3d 89 (2003), and we review the court’s factual findings leading to the issuance of the injunction under the clearly-erroneous standard. See So. College of Naturopathy v. State, 360 Ark. 543, 203 S.W.3d 111 (2005); City Slickers v. Douglas, 73 Ark. App. 64, 40 S.W.3d 805 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, upon viewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. See Ligon v. Stewart, 369 Ark. 380, 255 S.W.3d 435 (2007).
Bilo argues that the trial court erred in finding that he diverted a natural watercourse and, consequently, that the court erred in judging his conduct under a reasonableness standard. He contends that the court should have found that he diverted mere surface water, which would entitle him to the benefit of the standard set forth by the common-enemy doctrine, to wit:
Where no watercourse exists ... a landowner is justified in defending against surface runoff without incurring liability for damages unless injury is unnecessarily inflicted upon another which, by reasonable effort and expense, could be avoided.
See Boyd v. Greene County, 1 Ark. App. 110, 112, 644 S.W.2d 615, 616-17 (1983). Bilo also argues that, under our supreme court’s holding in Levy v. Nash, 87 Ark. 41, 112 S.W. 173 (1908), his status as an urban landowner gave him even more freedom to fend off surface water without incurring liability.
Our law defines a watercourse as:
[A] running stream of water; a natural stream, including rivers, creeks, runs and rivulets. There must be a stream, usually flowing in a particular direction, though it need not flow continuously. It may sometimes be dry. It must flow in a definite channel, having a bed and banks, and usually discharges itself into some other stream or body of water. It must be something more than mere surface drainage over the entire face of the tract of land occasioned by unusual freshets or other extraordinary causes.
Boyd, 1 Ark. App. at 112, 644 S.W.2d at 617 (1983) (quoting Boone v. Wilson, 125 Ark. 364, 188 S.W. 1160 (1916)). We see no clear error in the trial court’s finding that the water diverted by Bilo was a watercourse. Accordingly, we need not address his arguments concerning diversion of surface water.
The evidence showed that the water moved through Bilo’s tract with such flow and direction that beavers built dams, thus indicating a flow through a definite channel. The large drainage ditch constructed by First Financial Bank, the parties’ neighbor to the south, is further indication of the water’s force, volume, and constant flow along this path. Additionally, the water was referred to by public works director Robert Edmonds as a “creek” and a “water way.” Corps of Engineers documents stated that Bilo had discharged fill material into a “wetland associated with an unnamed tributary of Bayou de Loutre,” and Bilo’s application listed the Bayou de Loutre as the body of water connected with the project. And, the court found that the water ultimately drained south and east “into Loutre Creek.” These factors demonstrate that more than mere surface water flowed across Bilo’s tract.
We therefore have no definite and firm conviction that the trial court was mistaken when it characterized the diverted water as a watercourse. We are not dissuaded by the trial court’s lack of findings regarding the presence of well-defined bed and banks. Their absence may be explained by the fact that the water had been diverted away from this course at least once in the past and that the water had begun to coalesce along this course once again after Timberlane Drive was constructed. We also distinguish Boyd, supra, on which Bilo relies. There, the evidence was “virtually undisputed” that the water in question was “mere surface drainage.” Boyd, 7 Ark. App. at 113, 644 S.W.2d at 617. That matter is in great dispute here.
Bilo argues next that the trial court should have provided a legal description of that part of his land that he was enjoined from filling. A trial court’s order must provide a legal description when locating boundary lines or easements. See Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998); Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). Bilo cites no persuasive authority that these holdings should be applied in a case that does not involve a dispute over property lines or ownership.
Affirmed.
Pittman, C.J., Robbins, and Bird, JJ., agree.
Gladwin and Griffen, JJ., dissent.
Bilo argues for the first time in his reply brief that the trial court erred in allowing Edmonds to testify as an expert. We do not address arguments raised for the first time in a reply brief. See Abdin v. Abdin, 94 Ark. App. 12, 223 S.W.3d 60 (2006).
Bilo does not challenge the trial court’s finding that his conduct was unreasonable. | [
-15,
126,
-40,
-19,
-72,
-92,
120,
-104,
91,
-29,
-27,
87,
31,
-37,
16,
97,
-29,
111,
116,
105,
-58,
-30,
19,
-62,
-10,
-109,
122,
-89,
-3,
76,
-12,
-58,
76,
16,
-126,
85,
114,
64,
-51,
-40,
-122,
7,
-119,
117,
-63,
-61,
20,
107,
18,
79,
81,
-115,
-13,
44,
17,
71,
8,
60,
111,
-75,
0,
56,
-98,
6,
75,
21,
34,
86,
-103,
-125,
-56,
9,
-110,
-16,
32,
-24,
119,
50,
-106,
-12,
3,
-101,
-116,
-80,
103,
4,
109,
-81,
-32,
-119,
15,
-38,
-117,
-91,
-106,
8,
72,
-28,
-67,
-99,
116,
86,
6,
108,
-20,
-124,
95,
110,
-107,
-57,
-108,
-29,
-115,
-32,
-124,
19,
-57,
39,
33,
100,
-49,
-30,
92,
69,
80,
95,
15,
-15
] |
Sarah Heffley, Judge.
Appellants, minority stockholders in the Farmers Bank of Greenwood, were involved in a “freeze-out” by the majority stockholder, Wilkinson Banking Corporation, and a dispute arose over the value placed on their shares. The administrative process to establish the value of the shares lasted approximately twenty-one months, and appellants now appeal the Bank Commissioner’s decision to not award interest on the value of their shares during the delay. We find that appellants should have been awarded interest and reverse.
This case began when Ed Wilkinson, president of Farmers Bank, announced a stockholder meeting to be held on September 23, 2003, to consider a plan of exchange in which all shares not already owned by Wilkinson Banking Corporation would be acquired by Wilkinson for a cash payment of $5600 per share. The plan of exchange was adopted at the shareholder meeting, and the Arkansas Bank Commissioner approved the plan on September 30, 2003. Appellants disputed the tendered value for their shares and pursued their statutory rights as dissenters under Ark. Code Ann. § 23-48-603 (Repl. 2000). Appellants sought an increased value of the shares and interest for the period of time between September 30, 2003, and payment. During this period of dispute, the $5600 tendered for each share remained in a non-interest-bearing account.
On May 16, 2005, the Commissioner decided that the final valuation of the shares was $7270 per share, but he denied appellants’ request for interest, stating that because the issue of interest was not addressed in section 23-48-603, the Commissioner was not authorized to award interest in addition to the valuation. Appellants filed an appeal in the Pulaski County Circuit Court, which affirmed the agency’s decision on March 14, 2007. Appellants then filed a timely notice of appeal to this court.
Decisions of the Banking Board and Commissioner are subject to the Arkansas Administrative Procedure Act, which allows this court to review the decision of the administrative agency notwithstanding the decision rendered by the circuit court. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). In an appeal from an administrative order, this court’s review is directed to the agency’s decision, not the circuit court’s. Id. This court reviews the entire record and gives the evidence its strongest probative force in favor of the agency’s ruling. Id. Arkansas Code Annotated section 25-25-212(h) (Repl. 2002) provides that this court may reverse or modify the agency’s decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by abuse of discretion.
Under Ark. Code Ann. §§ 23-48-601 through 23-48-605 (Repl. 2000 and Supp. 2007), the legislature set out the process for reorganization through a plan of exchange, allowing a state bank to adopt a plan of exchange of all the outstanding capital stock held by the stockholders for the consideration designated in the section to be paid or provided by a bank-holding company that acquires the stock. A minority shareholder’s dissent from the plan of exchange is not sufficient to disallow the plan; rather than permitting deadlock, the statute authorizes the majority to proceed with its plan while providing for dissenters’ appraisal rights. Under Ark. Code Ann. § 23-48-603, once the plan has been approved by the majority stockholders and the Commissioner, the dissenters may go through a separate process to have the value of their stock determined. If the dissenters and the bank still disagree, the Commissioner then makes an appraisal determination that is binding on both parties.
In this case, appellants assert that they should receive six-percent interest on the value of their shares during the delay in making the value determination, which would amount to over $300,000. Appellants point out that on September 30, 2003, they lost their rights as shareholders and that the bank was unjustly enriched by the use of this money for twenty-one months. Appellants contend that they have been involuntary lenders to the bank and that, according to Ark. Code Ann. § 23-48-603, the full value of the acquired stock is a debt that the bank owes them. To support their argument, appellants cite Fitzgerald v. Investors Preferred Lfe Ins. Co., 258 Ark. 966, 530 S.W.2d 195 (1976), which involved a merger of two life insurance companies. The dissenting stockholders sought the value of their preferred stock before the merger. On appeal, they challenged the trial court’s refusal to allow interest on the value of the stock between the date of the merger and the date of judgment. Our supreme court reversed, stating:
The trial court refused to allow interest on the value of the stock between the date of the merger and the date of judgment. In this we think the trial court erred. Ark.Stat.Ann. § 66-4249 (Repl.1966), provides that a dissenting stockholder ceases to be a stockholder on the date of the merger and that the surviving corporation must make a tender of the fair cash value of the dissenting stock within 30 days of the merger. Since the tender in this instance was less than the fair cash value and the merger, in effect, destroyed the stockholder’s rights, simple justice would require that the assessment of interest from the last day of the statutory tender date to the time of judgment should be awarded. We so hold, notwithstanding the contrary holdings from other jurisdictions with similar statutory provisions. We have consistently held that in cases of conversion the defendant is liable for interest from the date of conversion, Bradley Lumber Co. v. Hamilton, 117 Ark. 127, 173 S.W 848 (1915). Ark. Stat.Ann. § 66-4249 (Repl.1966), places on the surviving corporation both the duties of determining the fair cash value and the making of a tender. To deny interest in the circumstances before us would encourage the surviving corporation to shave its estimate of fair cash value since it would have the benefit of the earnings of the money due to the dissenting stockholders during the period before judgment.
Id. at 967-68, 530 S.W.2d at 196-97.
Appellants argue that because Ark. Code Ann. § 23-48-603 was enacted after the supreme court’s decision in Fitzgerald, it can be presumed that it did not intend to require a different result in cases involving reorganization of state banks. The legislature is presumed to know the decisions of the supreme court, and it will not be presumed in construing a statute that the legislature intended to require the court to pass again upon a subject where its intent is not expressed in unmistakable language. Martin v. Pierce, 370 Ark. 53, 257 S.W.3d 82 (2007).
In response, appellees argue that appellants’ reliance on Fitzgerald is misplaced because its holding has been significantly limited by subsequent cases, such as Woodline Motor Freight v. Troutman Oil Co., 327 Ark. 448, 938 S.W.2d 565 (1997). Appellees also distinguish Fitzgerald by pointing out that, in that case, the court had statutory authority to award interest on its judgment, whereas the Commissioner lacks such authority. Appellees argue that the Commissioner’s interpretation of the banking statute should not be overturned because the statute makes no provision for an award of interest on minority shares purchased under a plan of exchange.
We find appellants’ argument on this point persuasive and disagree with the assertions made by appellees. The Woodline decision, contrary to appellees’ assertion, did not limit Fitzgerald, and we see no meaningful distinction between a determination of fair value by the bank commissioner and a determination of fair value made by a circuit court. And while appellees are correct that the statute in question makes no provision for an award of interest, neither does the statute prohibit such an award. As in Fitzgerald, “simple justice” requires that appellants be awarded interest on the value of their stock during the delay in valuation, a period of almost twenty-one months during which appellants no longer possessed rights as shareholders yet had not been paid. Accordingly, we reverse and remand for the trial court to enter an order consistent with this opinion.
Reversed and remanded.
Glover and Baker, JJ., agree.
We also note that we are equally unpersuaded by appellees’ attempt to compare the interest awarded in this case to an award of prejudgment interest. | [
118,
-19,
-16,
-36,
-64,
96,
58,
-106,
81,
-96,
-91,
-45,
41,
-25,
20,
123,
-25,
57,
109,
104,
-41,
-79,
23,
106,
-62,
-13,
-103,
-49,
-94,
79,
-28,
-42,
77,
48,
-54,
85,
-32,
-60,
-57,
94,
14,
-126,
11,
104,
89,
68,
56,
47,
86,
3,
49,
-75,
-14,
-67,
61,
74,
104,
46,
109,
37,
81,
-16,
10,
77,
-33,
20,
1,
36,
-102,
13,
-40,
46,
-104,
48,
57,
-55,
114,
38,
-122,
116,
45,
-103,
12,
46,
99,
3,
32,
-17,
-100,
-88,
38,
-34,
-83,
-90,
-46,
41,
3,
11,
-65,
-98,
46,
16,
68,
-4,
-22,
12,
25,
108,
5,
-50,
-44,
-109,
-99,
-11,
-104,
3,
-13,
-113,
48,
117,
-53,
-29,
125,
-59,
59,
123,
-58,
-45
] |
Josephine Linker Hart, Judge.
The circuit court granted the motion to dismiss of appellee, Keith Capps, which appellee made at the close of the evidence offered by appellant, Wade Kevin Crooms, in his suit alleging that appellee damaged his truck. Appellant contends that this was error. Specifically, appellant argues that the court erred in finding that he failed to make a prima facie case of his measure of damages in accordance with Ark. Code Ann. § 27-53-401 (Repl. 1994), which provides in part that “[i]n all cases involving damage to motor vehicles, the measure of damages shall be the difference between the value of the vehicle immediately before the damage occurred and the value after the damage occurred . . . .” He asserts that he made his prima facie case by presenting an estimate of the cost of repairs to the truck. We agree with appellant and reverse and remand.
The proper motion to challenge the sufficiency of an opponent’s evidence in a non-jury case is a motion to dismiss. Rymor Builders, Inc. v. Tanglewood Plumbing Co., 100 Ark. App. 141, 265 S.W.3d 151 (2007). The court must decide whether, if it were a jury trial, the evidence would be sufficient to present to the jury, and if the non-moving party has made a prima facie case on its claim or counter-claim, then the issue must be resolved by the finder of fact. Id. In evaluating whether the evidence is substantial enough to make a question for the fact-finder, the circuit court may not assess the witnesses’ credibility. Id.
In presenting his case to the circuit court, appellant testified that on May 4, 2005, he drove his 1997 S-10 Chevrolet pickup truck to the appellee’s place of business to purchase a load of soil. An employee of appellee used a small bucket loader to load the truck, but during loading, a sixty- to seventy-pound clod of wet, hard dirt fell from the bucket and damaged the bed panel of the truck.
Appellant testified that at the time of the damage, he had owned the truck for almost a year; that he had purchased it from the original owner for $6500; and that it was in excellent condition, with very low mileage and no scratches or dents. He further testified that he traded the truck during the summer of 2005 and “took a loss on it when I traded it because of the damage,” and as a trade-in, he “got about $2500.” He further testified that he would not have objected to repairing, as opposed to replacing, the. panel, but that repairing the panel was not what was recommended to him at the time he obtained an estimate of the damage. He testified that Suzette Thomas, who prepared the estimate, recommended that the panel be replaced instead of repaired because the panel was “bowed out.”
Suzette Thomas, whose various duties in her employment included writing estimates for automobile repair, testified that on May 11, 2005, she prepared an estimate for replacing and painting the passenger-side bed panel of appellant’s truck. The total was $2105.78, which included $1072.30 for parts and material; $868.00 for labor; $9.50 for “sublet repairs”; and $155.98 in tax. An itemized list of the work to be performed was introduced into evidence. Thomas testified that the decision to replace or repair the bed panel was “really a judgment call.”
On cross-examination, however, Thomas admitted that she had no independent recollection of making the estimate. She agreed that the only way to know whether the estimate was correct was to actually perform the repairs. She also agreed that she based her estimate on what she saw and what she was told by appellant. Further, she agreed that it was possible that appellant could have asked her to replace the panel. Counsel for appellee then presented her with photographs of the truck, and she concluded that the damage to the panel could have been repaired, as opposed to replacing the panel. When counsel asked how repairing the panel rather than replacing it would reduce the estimate, Thomas testified that, “[j]ust guessing, approximately the cost of the bed panel, which is $842.00, plus would not need to do the blending; approximately $1,000.00.” She further testified that she had no independent recollection of why she indicated that the panel should be replaced, that her business did not perform any repairs to the truck, and that she did not know the value of the truck either before the damage or after the damage.
At the conclusion of appellant’s case, appellee moved to dismiss, arguing that appellant failed to make a prima facie showing of damages in accordance with Ark. Code Ann. § 27-53-401, as there was no testimony about the value of the truck immediately before and after the damage. Appellant argued that the estimate established the difference in the value of the truck before and after the damage, and further noted that appellant also testified about the purchase price and the trade-in value of the truck. The circuit court granted appellee’s motion to dismiss, and in its written order stated that appellant “failed to present proper evidence of the difference between the value of the vehicle immediately before the occurrence, and the value of the vehicle immediately after the occurrence . . . .” Appellant again argues on appeal that evidence of the cost of repairs was sufficient to establish a prima facie case of his measure of damages.
We reverse and remand the circuit court’s decision. In Zhan v. Sherman, 323 Ark. 172, 913 S.W.2d 776 (1996), the Arkansas Supreme Court stated that, in accordance with Ark. Code Ann. § 27-53-401, the measure of damages to a motor vehicle is the difference between the value of the vehicle immediately before the damage occurred and the value after the damage occurred. However, the court further stated that when proving damages for property that was not a total loss, the difference in fair market value may be established by the reasonable cost of repairing the damaged property.
This proposition was aptly demonstrated in a case predating passage of the statute. In Slaughter v. Barrett, 239 Ark. 957, 395 S.W.2d 552 (1965), the trial court directed a verdict for the defendant on the ground that the plaintiff s proof failed to show the difference in the value of his car before and after the collision. There, the plaintiff, who was an automobile mechanic, described the specific replacements and repair work that were necessitated by the collision, and the repair bill introduced into evidence reflected the labor and materials that went into the job. The Arkansas Supreme Court noted that it had frequently held that the difference in the market value of a vehicle before and after an accident may be established by proof of the amount paid in good faith for repairs made necessary by the collision. The court concluded that the plaintiff s testimony and the repair bill itself were sufficient to justify the trial court in submitting the question of damages to the jury, as the plaintiff s evidence made a prima facie case for the jury. The court noted further that the defendant was at liberty to go forward with rebutting proof if he thought that the cost of the repairs exceeded the difference in market value.
Similarly, in the case before us, appellant’s testimony regarding the damage to his truck and Thomas’s testimony regarding the cost of repairs, along with the repair estimate, presented a prima facie case of appellant’s measure of damages. Appellee counters, asserting that this evidence was too speculative to establish a prima facie case. Appellee notes that Thomas did not remember making the estimate or why she indicated that the panel should be replaced, testified that it was judgment call, stated that she would not know whether the estimate was correct unless the repairs were made, testified that she based her estimate on what she was told by appellant and that he may have asked her to replace the panel, testified that the panel could be repaired rather than replaced, and testified that she did not know the value of the truck and guessed that the damages were approximately $1000 less if the panel was repaired.
We, however, disagree with appellee’s assertion. Our cases give the factfinder some latitude in its decision in awarding damages when arriving at a fair-market-value figure and have not required exactness on the proof of damages. Zhan, supra. If it is reasonably certain that some loss has occurred, it is enough that the loss be stated only proximately. Id. The evidence presented by appellant did that, and accordingly, appellant made a prima facie case of the measure of damages.
Reversed and remanded.
Heffley and Miller, JJ., agree. | [
-16,
-20,
-60,
-115,
12,
96,
74,
58,
-63,
-125,
39,
83,
111,
-62,
28,
103,
-26,
29,
-63,
8,
-59,
-77,
79,
75,
-46,
-105,
-5,
79,
61,
-55,
-27,
-11,
76,
48,
-54,
-43,
103,
-64,
-123,
92,
78,
-128,
-71,
-28,
-7,
-64,
40,
51,
4,
15,
52,
-122,
-30,
42,
29,
-57,
-115,
42,
75,
41,
-32,
80,
-52,
13,
111,
1,
-95,
52,
30,
1,
88,
11,
-112,
-80,
8,
-72,
115,
-74,
-126,
84,
75,
-101,
8,
96,
99,
19,
28,
-55,
61,
-72,
15,
58,
15,
-90,
48,
73,
73,
41,
-73,
-99,
124,
22,
14,
110,
-20,
77,
93,
108,
-121,
-113,
-78,
-79,
15,
36,
28,
9,
-17,
-127,
18,
97,
-52,
-16,
92,
5,
26,
-37,
-50,
-109
] |
Brian S. Miller, Judge.
Appellant James Brooks appeals from a default judgment entered against him in an action filed by appellee Farmers Bank and Trust Company (the Bank). On appeal, Brooks argues that the trial court abused its discretion when it granted the Bank’s motion for default judgment. We agree and reverse and remand for a new hearing.
The Bank filed a complaint against Brooks on September 28, 2006, alleging that Brooks was in default on a loan provided by the Bank. The complaint alleged that Brooks owed the Bank $20,863.69. A lis pendens notice was filed and a summons was issued the same day. The complaint and summons were served on Brooks on October 4, 2006. Brooks, however, failed to respond to the complaint.
Brooks appeared at a hearing on the Bank’s complaint, which was held on March 30, 2007. Before offering testimony, the Bank orally moved for a default judgment against Brooks, alleging that he failed to answer the complaint. In response, Brooks moved for a continuance. The trial court denied Brooks’s motion and found him in default. The trial court did not permit Brooks to offer a defense as to the Bank’s damages, and awarded the Bank $22,990.41 in damages, plus interest of $4.19 per diem.
A trial court’s decision to grant a motion for default judgment will not be reversed absent an abuse of discretion. See Nationwide Ins. v. Ibanez, 368 Ark. 432, 246 S.W.3d 883 (2007); Fields v. Byrd, 96 Ark. App. 174, 239 S.W.3d 543 (2006). When a party against whom a judgment for affirmative relief is sought fails to plead or otherwise defend, the trial court may enter a default judgment. Ark. R. Civ. P. 55(a). Default judgments are not favorites of the law and should be avoided when possible. Volunteer Transp., Inc. v. House, 357 Ark. 95, 162 S.W.3d 456 (2004). A default judgment should only be granted when strictly authorized and when the party affected should clearly know he is subject to default if he does not act in a required manner. Southeast Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998).
Brooks argues two points on appeal in support of his contention that the trial court abused its discretion when it granted the Bank’s motion for a default judgment. He argues that the trial court erred in granting a default judgment because the complaint failed to show a specific basis for relief and because the court was required to provide him three days’ notice before hearing the Bank’s motion for a default judgment. We will not address Brooks’s first point because we find merit in his second point, and we reverse and remand based on that point.
The trial court abused its discretion by granting the Bank’s motion for a default judgment without first allowing Brooks’s three days’ notice to prepare a defense to the motion. Arkansas Rule of Civil Procedure 55(b) provides that if the party against whom judgment by default is sought has appeared in the action, he shall be served with written notice of the application for judgment at least three days prior to the hearing on such application. Rule 55(b) does not require that notice of a hearing be given to a defaulting defendant who has not appeared. McGraw v. Jones, 367 Ark. 138, 238 S.W.3d 15 (2006). The word “appearance” designates some overt act by which a party against whom a suit has been commenced submits himself to the jurisdiction of the court. Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992).
In this case, Brooks personally appeared at the March 30 hearing, which is an overt act submitting himself to the court’s jurisdiction. His appearance was made before the Bank orally moved for a default judgment. Consequently, the court was required by Rule 55(b) to give him three days notice before hearing the Bank’s default motion. Further, the court also erred in failing to permit Brooks to defend against the Bank’s damages evidence. For these reasons, the trial court abused its discretion when it granted the Bank’s motion for default judgment and we reverse and remand. The trial court is instructed to proceed according to this opinion should it conduct a second default-judgment hearing.
Reversed and remanded.
Pittman, C.J., and Glover, J., agree. | [
-110,
-20,
-31,
108,
-119,
96,
50,
-114,
80,
-15,
-89,
-45,
-81,
-44,
20,
107,
-14,
93,
117,
-31,
86,
-77,
15,
-64,
-62,
-77,
-46,
103,
-76,
75,
-27,
-42,
12,
16,
-62,
-43,
-26,
-62,
-63,
-12,
14,
7,
25,
108,
-39,
65,
112,
-85,
16,
9,
49,
60,
-13,
46,
-71,
74,
104,
44,
127,
-67,
80,
-80,
-102,
30,
127,
21,
-95,
-107,
-102,
71,
88,
124,
-128,
57,
3,
-24,
114,
-74,
-126,
85,
75,
-103,
9,
102,
98,
-127,
60,
-49,
-80,
-87,
-90,
-34,
-115,
-90,
-46,
24,
75,
39,
-74,
-100,
120,
78,
6,
-8,
101,
-100,
93,
-84,
7,
-50,
-44,
-79,
-126,
-3,
-104,
10,
-17,
75,
52,
49,
-116,
-52,
89,
-49,
115,
-117,
-34,
-99
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.