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WAYMOND M. BROWN, Judge.
hOn February 27, 2009, the Workers’ Compensation Commission found that Jessie Gist suffered a compensable injury, that he was entitled to five-percent permanent impairment, and that he was temporarily totally disabled from March 29 through July 28, 2007. Gist’s employer, United Farms, Inc., and its carrier, Ag-Comp SIF (collectively “United Farms”), appeal from that decision. First, they argue that the record lacks objective findings or causal evidence sufficient to justify the award. Second, they contend that the award of temporary-total disability was improper in light of Gist’s unjustified refusal to accept light-duty work. We affirm.
Factual and Procedural History
Gist worked for United Farms as a fish-truck driver. He alleged that he suffered a compensable injury on March 28, 2007, when he slipped and fell on some wet steps. Later that day, he presented to the Crittenden Regional Hospital emergency room, where he was initially Rdiagnosed with lumbar strain. An x-ray of the lumbar spine taken that day showed normal alignment, vertebral bodies, and interver-tebral discs. At a follow-up appointment at the Lee County Cooperative Clinic, a doctor assessed a back and kidney contusion with musculoskeletal strain.
Gist presented to United Farms’s workers’ compensation doctor, Trent Pierce, on April 19, 2007. Dr. Pierce noted tenderness along Gist’s paraspinous muscles on the right side of the lumbar and thoracic spine. The doctor reviewed the previous x-ray and saw an old vertebral fracture at LI, but he did not believe that Gist suffered an acute injury. Dr. Pierce kept Gist off work until April 80, 2007. On May 9, 2007, Gist submitted to an MRI, which showed a very minimal diffuse bulge at L4-5 and L5-S1 and bilateral degenerative facet arthropathy at all lumbar levels. Like the previous x-ray, the MRI showed a normal Ll-2 and L2-8. On May 14, 2007, Dr. Pierce released Gist to regular duty with a twenty-pound lifting restriction.
Gist presented to Dr. Jerry Engelberg for the first time on June 22, 2007. Dr. Engelberg reviewed the previous x-ray and MRI and saw the old compression fracture at LI. Dr. Engelberg ordered a bone scan on June 29, 2007, which showed an “enlargement of what appears to be the right side of the L2 transverse process.” The radiologist stated that the finding could be either a “normal variant” or a “pathologic lesion or subtle fracture.” On July 3, 2007, Gist submitted to a CT scan of his lumbar spine, which revealed a right L2 transverse-process fracture. It also showed an unrelated LI vertebral-body superior-endplate-eompression deformity. The radiologist, James Acker, described both of these injuries as “remote.”
lain correspondence to Gist’s attorney, Dr. Engelberg confirmed that Gist had suffered a transverse-process fracture on his right L2, which “appeared to be reasonably recent.” In a separate letter, he assessed a five-percent permanent-impairment rating to the whole person. The parties took Dr. Engelberg’s deposition on May 20, 2008. During that deposition, he stated that it was difficult to determine the age of the fractures at LI and L2 and that he would defer to the radiologist as far as the age of those fractures. He also stated that he did not know what Dr. Acker meant when he wrote that both the LI and L2 fractures were “remote.” However, he was able to state that transverse-process fractures are rare and that they are almost always caused by trauma. He held to his opinion that the fracture at L2 was a result of the March 28, 2007 fall. Dr. Engel-berg was also asked about maximum-medical improvement. He reviewed Dr. Pierce’s notes, which included Dr. Pierce’s opinion that Gist could return to light-duty work near the end of April. Dr. Engel-berg disagreed. He stated that a patient with a transverse-process fracture would need approximately three to four months before reaching maximum-medical improvement. He also held to the five-percent permanent-impairment rating that he had assigned to Gist and stated that he had assigned that rating without taking into account pain or range of motion.
There was also testimony regarding Gist’s attempts to return to work after the accident. Gist testified that he tried to return to work while being treated by Dr. Pierce. He stated that he did not want to drive motor vehicles due to the medications he was taking. He tried to perform light-duty work in the form of shooting the cranes in the area, but that work still caused him |4pain. On another occasion, Gist was under a truck fixing a light. When he came out from under the truck, he felt as if someone had stabbed him in the back. Gist told the ALJ that on the days when he tried to work, Payton Upton, the company’s owner, would send him home. Gist opined that, after the accident, he could no longer do his job.
Jessie Morgan also worked at United Farms. He witnessed the fall and acknowledged that Gist had no problems driving prior to the accident. Morgan testified that he wanted to get Gist off workers’ compensation as quickly as possible and that he would have allowed Gist to do nothing for forty hours a week in order to do so. Morgan said that, after the accident, he asked Gist to clean his truck and run the cranes off the premises with his truck. Morgan stated that he sent Gist home only on a few occasions. The other times, he would assign Gist a task; Gist would attempt it, then say that he could not do it and go home.
United Farms initially paid benefits, but it controverted Gist’s claim in its entirety after hiring an investigator to conduct surveillance in May and August 2007. While this evidence demonstrated that Gist may have been exaggerating his overall disability, the ALJ found the surveillance evidence to be of little value. The ALJ also wrote that counsel for United Farms “did a masterful job on cross-examination to show that [Gist] was an untruthful witness.” Nonetheless, he found that Gist had proved the existence of a compensable injury and that he was entitled to a five-percent permanent-impairment rating and temporary-total disability from March 29 through July 28, 2007. The ALJ also rejected United Farms’s argument that Gist rejected suitable employment, relying on the testimony that Gist had indeed attempted to do |¡;Work, but that his supervisor sent him home. The Commission affirmed and adopted the opinion of the ALJ.
Standard of Review
In reviewing decisions from the Workers’ Compensation Commission, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s decision and affirms if that decision is supported by substantial evidence. Smith v. City of Ft. Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Williams v. Prostaff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). The issue is not whether the reviewing court might have reached a different result from that of the Commission; if reasonable minds could reach the result found by the Commission, we must affirm the decision. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94; 989 S.W.2d 151 (1999).
Compensability and Permanent Impairment
United Farms challenges the Commission’s finding that Gist suffered a compen-sable injury and that he was entitled to a five-percent permanent impairment rating. It argues that the record contains no objective medical evidence and that Dr. En-gelberg’s assessment was improper.
Contrary to United Farms’s assertion, the record does contain objective medical findings sufficient to establish compensability. A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp.2009). | fiObjective findings are those that cannot come under the voluntary control of the patient. Ark.Code Ann. § 11-9-102(16)(A)(i). While objective findings are necessary to establish the existence and extent of an injury, they are not essential to establish the causal relationship between the injury and the work-related accident. Wal-Mart Stores, Inc. v. Van-Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999). In this ease, the objective finding of a transverse-process fracture at L2 can be found in the bone scan taken in June 2007 and the MRI taken in July 2007. United Farms relies on the previous studies that did not reveal a fracture. This may be evidence supporting a finding that the fracture was not compensable, but the bone scan and the MRI are enough to meet the substantial-evidence standard.
United Farms is also incorrect in stating that the Commission improperly relied on Dr. Engelberg’s opinion. The Commission has the duty of weighing the medical evidence as it does any other evidence, and the Commission has the authority to accept or reject medical opinions. Cooper Standard Auto., Inc. v. Kelley, 2009 Ark. App. 552, 337 S.W.3d 542. When the Commission weighs medical evidence and the evidence is conflicting, its resolution is a question of fact for the Commission. Id. The interpretation given to medical evidence by the Commission has the weight and force of a jury verdict, and we are powerless to reverse the Commission’s decision regarding which medical evidence it chooses to accept when that evidence is conflicting. Id. In this case, Dr. Engelberg opined that the transverse-process fracture was a result of Gist’s fall. United Farms relies on Dr. Engelberg’s deference to Dr. Acker’s opinion; however, Dr. Engelberg never backed away from his opinion that Gist’s injury was caused by the accident. 17Pr. Engelberg also held to his assessment of a five-percent permanent-impairment rating. United Farms claimed that the rating was improperly based on subjective complaints of pain, but Dr. Engelberg’s testimony does not support this claim:
I did give Mr. Gist a rating on April 14th, 2008. When I assigned that, I used the Fourth Edition of the A.M.A. Guides.... This rating was strictly based on the A.M.A. Guidelines. I did not take into account pain. I also didn’t take into account the range of motion. The only thing I took into account, I went to the A.M.A. Guidelines and spent some time, looked up and saw a transverse process fracture, what they assigned to that. As far as the pain and suffering, I leave that to the courts to make a decision there. I didn’t use any kind of pain or subjective complaints when I did the rating.
Thus, the Commission did not err in finding that Gist proved compensability or in relying on Dr. Engelberg’s impairment rating. We affirm on this point.
Temporary-Total Disability
Next, United Farms argues that the Commission erred in awarding temporary-total disability. It relies on the Commission’s finding that Gist was not credible as well as its assertion that Gist refused light-duty work.
When an injured employee is totally incapacitated from earning wages and remains within his healing period, he is entitled to temporary-total disability. Searcy Indus. Laundry, Inc. v. Ferren, 92 Ark. App. 65, 211 S.W.3d 11 (2005). Even if a claimant is still within his healing period, the Commission should deny benefits if the claimant has not suffered a total incapacity to earn wages. Johnson v. Rapid Die & Molding, 46 Ark. App. 244, 878 S.W.2d 790 (1994). If, during the period while the body is healing, the employee is unable to perform remunerative labor with reasonable consistency and without pain and discomfort, his temporary disability is | ^deemed total. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).
The substantial-evidence standard requires us to affirm. With respect to the length of temporary-total disability, Dr. Engelberg testified that Gist should have had three to four months to recover from his injury. He explicitly disagreed with Dr. Pierce’s returning Gist to work in late April 2007. Giving Dr. Engelberg’s testimony its maximum effect, as the substantial-evidence standard requires us to do, this would place Gist at the end of his healing period no later than July 28, 2007.
As for United Farms’s argument regarding rejection of suitable work, the company states the law correctly. If an injured employee refuses suitable employment, he is not entitled to any compensation during the continuance of the refusal unless the refusal is justifiable. Ark.Code Ann. § 11-9-526 (Repl.2002). However, there was evidence showing this not to be the case. Gist stated that he attempted to do the work, but was sent home by Upton. Morgan stated that Gist would attempt the work, but would go home after attempting to do the work without success. Further, while Morgan testified that he would allow Gist to sit at a desk and collect a paycheck, there is nothing in the record actually showing that this was offered to Gist. If Gist’s testimony is accepted, he never refused suitable work. If Morgan’s testimony is accepted, then at best any refusal to do the work was justifiable given Gist’s inability to do the work.
Substantial evidence supports the Commission’s award of temporary total-disability benefits. We affirm on this point as well.
Affirmed.
GRUBER and BAKER, JJ., agree. | [
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KAREN R. BAKER, Justice.
|, This appeal stems from a June 2013, manslaughter trial against Joshua Hastings in Pulaski County Circuit Court. William 0. James, Jr., is an attorney who represented Hastings at trial. During the trial, Wendell Griffen, the presiding judge in the case, found James guilty of a total of ten contempt violations. James was originally fined $2,500 per violation, but in a February 25, 2014 order, the circuit court reduced that amount to $500 per violation.
Hastings was a Little Rock police officer and was charged with the August 12, 2012 death of Bobby Moore III. While on duty on August 12, 2012, Hastings fired shots into a car occupied by three passengers: Moore, Jeremiah Johnson, and Keontay Walker. Moore died as a result of his injuries, and Hastings was charged with manslaughter. Johnson and Walker were the prosecution’s key witnesses. Prior to trial, on June 11, 2013, Hastings filed |¡>a motion asking to be allowed to cross-examine Johnson and Walker concerning their juvenile and probationary statuses. The circuit court heard arguments on the motion and denied Hastings’s motion. On June 13, 2013, Hastings filed a motion for reconsideration, and on June 14, 2013, the State responded. On June 17, 2013, the circuit court heard arguments on the motion and response, and on June 18, 2013, the circuit court reversed its prior ruling and ruled that Hastings could cross-examine Johnson and Walker. The ruling from the bench was as follows:
The defense may cross-examine witnesses ... Johnson and ... Walker about the fact that they were on probation in juvenile court for the purpose of challenging their credibility on the grounds of bias or motive.
The defense may not specify the offenses on which the probation was based, nor may the defense refer to any other offenses, juvenile offenses.
The defense is only permitted to inquire of the juvenile witnesses Johnson and Walker for the purpose of establishing or challenging credibility on grounds of bias or motive but not for the purpose of showing state of mind as to those witnesses at the time of the occurrence or for the purpose of establishing their character.
During opening statements, following an objection by the State, the circuit court announced that James had violated its order and held him in contempt. The trial continued and ended with a hung jury on Sunday, June 23, 2013. Immediately thereafter, the circuit court declared a mistrial, dismissed the jury, and announced that nine other contempt violations had occurred during the course of the trial.
On June 24, 2013, James filed a motion to vacate contempt findings. On June 25, 2013, the circuit court denied James’s motion. From the circuit court’s contempt order and the denial of James’s motion to vacate contempt findings, James appealed to this court. On ^February 10, 2014, we dismissed the appeal, concluding that the lack of a final contempt order precluded an appeal. On February 25, 2014, the circuit court entered a final order, “Memorandum Opinion and Entry of Contempt Order Against William O. James, Jr.” On February 28, 2014, James filed an amended motion asking to vacate the contempt findings to clarify the circuit court’s previous order because the circuit court had reduced the fines. On March 7, 2014, the circuit court denied James’s amended motion. From those orders, James appeals.
James presents five issues on appeal: (1) the contempt citations violated his constitutional and statutory rights of no tice and opportunity to be heard; (2) nine of the ten contempt citations are invalid because the circuit court failed to contemporaneously warn James of the alleged violations and because they violate the contemporaneous-objection rule; (3) the circuit court did not immediately act on the alleged violations but entered an order on Sunday, which the circuit court was statutorily prohibited from doing; (4) James’s statements were not violations of the circuit’s order; and (5) the circuit court’s order restricting examination of prosecution witnesses was unconstitutional as a matter of law and therefore the contempt citations must be reversed and dismissed.
We have jurisdiction of this matter pursuant to Ark. Sup.Ct. R. l-2(a)(l) and (2) as the appeal presents an issue involving the interpretation of the constitution and the discipline of attorneys.
As a preliminary matter, we must first determine whether the contempt at issue is criminal in nature or civil in nature. In Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275(1988), we explained,
The critical features which determine the nature of the proceeding are (1) the substance of the proceeding and (2) the character of the relief.
The purpose of a criminal contempt proceeding is that it is brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its order.... The character of the relief, rather than the trial court’s characterization of the substantive proceeding, becomes the critical factor in determining the nature of the proceeding for due process purposes. The Supreme Court of the United States has clearly set out the distinction between the types of relief:
The distinction between relief that is civil in nature and relief that is criminal in nature has been repeated and followed in many cases. An unconditional penalty is criminal in nature because it is “solely and exclusively punitive in character.” Penfield Co. v. SEC, 330 U.S. 585, 593 [67 S.Ct. 918, 91 L.Ed. 1117] (1947).
Fitzhugh, 296 Ark. at 138-40, 752 S.W.2d at 276-77 (quoting Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 631-32, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988)).
Here, James’s fine is unconditional and is to be paid to the court. Therefore, the punishment is punitive, and the contempt is criminal in nature.
For his first point on appeal, James asserts that the contempt citations violated his constitutional and statutory rights of notice and opportunity to be heard. The circuit court responds that James failed to preserve the issue for review and that the argument is without merit.
The standard of review in a case of criminal contempt is well settled: an appellate court views the record in the light most favorable to the trial judge’s decision and sustains that decision if it is supported by substantial evidence. Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007). Substantial evidence is evidence of a sufficient force and character to compel a conclusion one way or another, forcing the mind to pass beyond suspicion or conjecture. Id.; | ¡¡Witherspoon v. State, 322 Ark. 376, 909 S.W.2d 314 (1995). Where a person is held in contempt for failure or refusal to abide by a judge’s order, the reviewing court will not look behind the order to determine whether it is valid. Conlee, supra.
Additionally, a review of the application and interpretation of a statute, such as the statute defining contempt, is a question of law, which this court decides de novo. McLemore v. Weiss, 2013 Ark. 161, 427 S.W.3d 56. We are not bound by the circuit court’s decision; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct. Id. The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the drafting body. Richard v. Union Pac. R.R. Co., 2012 Ark. 129, 388 S.W.3d 422.
We turn now to the facts of this case and the applicable statute, Ark.Code Ann. § 16-10-108 (Repl.2010), “Contempt,” states in pertinent part:
(a)Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts and no others:
(3) Willful disobedience of any process or order lawfully issued or made by it;
(b)(1) Punishment for contempt is a Class C misdemeanor.
(c) Contempts committed in the immediate view and presence of the court may be punished summarily. In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his or her defense.
In reviewing the statute and the record, we note that the circuit court announced its 1 ficontempt findings at two different times, during James’s opening statement and at the close of the trial.
During opening statement, the following exchange occurred:
Defense Counsel: And when he gets there, they’re gone and I think Mr. Johnson said they ran because they were afraid they were going to get shot and that may be part of their fear, but I think the evidence will show there was a whole lot of other fear and one of them is afraid they’re just going to get caught.
They’re on probation. I’m not going to call these boys a bunch of names. I’m just going to say it as it is. They’re on probation, juvenile probation. They’re committing felonies.
Prosecutor: Your Honor, approach?
The Court: You may.
(The following conference was held at the bench outside the hearing of the jury.)
Prosecutor: Your Honor, he’s talking about them fleeing from the parking lot in conjunction with the night. It has nothing to do with their bias towards the police department—
Defense Counsel: I will move on. I did go into that, Your Honor.
The Court: He’s making an objection.
Prosecutor: — that it had nothing to do with the bias of the police department with regard to how they were telling why they told their stories a certain way.
The Court: The objection is sustained. Mr. Johnson’s objection is sustained. Mr. James, the Court has been very emphatic in its ruling yesterday evening and in its chambers conversation with 17counsel yesterday morning that evidence of the juvenile’s probationary status is permissible for cross examination on bias and motive with regard to testimony but not with regard to their character or how they may have acted at the scene.
Your argument is in direct violation of that. You will immediately move to another subject. I will take up the issue of sanctions after this trial, but I’m holding you in contempt. Go.
Prosecutor: Thank you, your Honor.
This rendition of the first contempt finding from the record is the complete record verbatim. In reviewing this first contempt citation, it is clear to us that the circuit court found that, in the imfiiediate view and presence of the court, James willfully violated the circuit court’s order, and the circuit court summarily held James in contempt but deferred the specific punishment until after the trial. The record also demonstrates that prior to the finding of contempt, he called into question the character of Johnsoh and Walker when he said:
They’re on probation. I’m not going to call these boys a bunch of narnes. I’m just going to say it as it is. They’re on probation, juvenile probation. They’re committing felonies.
Thus, James violated the order in the immediate view and presence of the court. Therefore, the circuit court had the authority to punish James summarily for contempt. Further, it appears that James did not contest that this statemefit was a violation of the circuit court’s ruling when he stated: “I will move on. I did go into that, Your Honor.” Because this was a summary contempt proceeding, we hold that the circuit court did fiot deprive James of his statutory and constitutional rights to notice and an ofiportuhity to be heard, and we affirm the circuit court oh this point as to the first contempt citation.
| ^Remaining Points on Appeal for Contempt Citation Number One
We next turn to James’s reinaining points on appeal regaining the first contempt citation. For his third point on appeal regarding the first contempt citation, James contends that the circuit court’s contempt order is invalid because it was entered on a Sunday, which is in violation of Ark.Code Ann. § 16-10-114 (Repl.2010), “Courts not to be open on Sunday — Exceptions.” The circuit court responds that this argument is without merit because Ark.Code Ann. § 16-10-114 authorizes the actions on a Sunday when they occur in conjunction with jury deliberations.
At issue is Ark.Code Ann. § 16-10-114, which provides:
(a) No court shall be opened or transact business on Sunday unless it is for the purpose of receiving a verdict or discharging a jury.
(b) Every adjournment of a court on Saturday shall always be to some other day than Sunday, except such adjournment as may be made after a cause has been committed to a jury.
(c) This section shall not prevent the exercise of the jurisdiction of any magistrate when it may be necessary in criminal cases to preserve the peace or arrest the offenders; nor shall this section inhibit the exercise of the jurisdiction of any magistrate on Sunday in disposing of misdemeanor cases where the defendant desires to and does enter a plea of guilty or a plea of nolo contendere.
Here, the record demonstrates that the jury in the underlying criminal action against Hastings was deliberating over the weekend as the circuit court convened the jury for deliberations on Sunday, June 23, 2013. The circuit court’s docket notes demonstrate that on June 22, 2013, having been unable to reach a verdict, the jury returned at 12:00 noon on |3Sunday, June 23, 2013, to continue deliberations. On Sunday, June 23, 2013, at 5:29 p.m., the jury ceased deliberations as it ended in a hung jury. The circuit court brought the jury in, received its decision, declared a mistrial, and then issued the contempt sanction. A review of the record demonstrates that the contempt citation for the first violation was addressed in connection with receiving the verdict and the jury’s deliberations. Accordingly, we do not find merit in James’s “Sunday” argument.
For his fourth point on appeal regarding the first contempt citation, James asserts that his conduct in the first contempt citation was not in violation of the circuit court’s order. However, as previously discussed, the record demonstrates that James both violated and acknowledged that he violated the circuit court’s order. Therefore, we find no merit in this argument.
For his fifth and final point on appeal regarding the first contempt citation, James asserts that the underlying order restricting cross-examination of the prosecution’s witnesses was unconstitutional as a matter of law. However, over 100 years ago, in Meeks v. State, 80 Ark. 579, 98 S.W. 378 (1906), we explained the even then long-standing principle that a circuit court’s order must be obeyed while it remains in force. Now as in Meeks, the fact that an order may be erroneous will not excuse disobedience on the part of those who are bound by its terms. Id.
Accordingly, we find no error and affirm the circuit court with respect to the first contempt citation of James.
_|j2Remaining Contempt Citations
Next, with regard to the nine remaining contempt citations, each was rendered at the close of the trial, after the circuit court had declared a mistrial. To be clear, the contempt citations were not rendered when the alleged conduct occurred during the trial, but at the close of trial. The following is the record verbatim in its entirety:
The Court: On June 11th, this Court had a pretrial hearing in which the Court, among other things, addressed the motion from the defense in limine to permit the disclosure and/or reference to the juvenile records of state witnesses Jeremiah Johnson and Keontay Walker.
The Court initially ruled that it would not allow the defense to make any inquiries. The Court received a timely request from the defense on June 13th to reconsider its ruling.
The Court entertained that request. The request was based upon the decision of the United States Supreme Court in the case of Davis versus Alaska, 415 U.S. 308 [94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)], a 1974 case. Mr. Berry argued persuasively. The Court began voir dire in this case, as counsel will recall, on June 17th and at the end of the voir dire on that day reaffirmed its ruling, denying the defense request.
On the morning of June 18, the Court called counsel into its chambers and informed counsel that the Court had reconsidered its ruling and based upon that reconsideration, the Court reversed itself and granted the defense motion with regard to the juvenile records of Jeremiah Johnson and Keontay Walker.
In doing so, the Court stated as follows: The defense may cross-examine witnesses Jeremiah Johnson and Keontay Walker about the fact that they were on probation in juvenile court for the purpose of challenging their credibility on the grounds of bias or motive.
The defense may not specify the offenses on which the probation |nwas based, nor may the defense refer to any other offenses, juvenile offenses. The defense is only permitted to inquire of the juvenile witnesses Johnson and Walker for the purpose of establishing or challenging credibility on grounds of bias or motive but not for the purpose of showing state of mind as to those witnesses at the time of the occurrence or for the purpose of establishing their character.
That was the ruling the Court made in response to the defense motion in li-mine and on reconsideration of the Court’s ruling denying that motion in limine.
I asked at that time, Mr. James, do you need to make a record with regard to the Court’s ruling. Mr. James, you answered, “No, Your Hon- or.” I later asked “does the defense understand the court’s ruling?” Mr. James, you answered “We understand it, Your Honor.”
I concluded with this statement: “I want to make sure on the record that this is preserved so for the purpose of any review subsequent that issue is preserved, also to make sure that everyone understands that the Court will not allow any tolerance of that.” Mr. James, you answered, “Thank you, Your Honor.”
On June 19, the next morning, during the defense opening statement, Mr. James you made this statement: “And when he gets there, they’re going to— and I think Mr. Johnson said they ran because they were afraid they were going to get shot and that may be part of that fear, but I think the evidence will show there was a whole lot of other fear and one of them is they’re just going to get caught. They’re on probation. I’m not going to call these boys a bunch of names. I will say it as it is. They’re on probation juvenile probation. They’re committing felonies.”
At that time, Mr. Johnson, you objected and you reminded the Court that Mr. James’s remark was talking about fleeing from the parking lot in conjunction with the night of the occurrence and you said, quote, it has nothing to do with their bias at the police 112department. It has nothing to do with the bias of the police department with regard to how they were telling — they told their stories a certain way.
The Court sustained the objection and I made this remark to you at that time, Mr. James, “Mr. James, the Court has been very emphatic in its ruling yesterday evening and in its chambers conversation with counsel yesterday morning that evidence of the juveniles’s probationary status is permissible for cross examination on bias and motive with regard to testimony but not with regard to their character or how they may have acted at the scene. Your argument is in direct violation of that. You will immediately move to another subject. I will take up the issue of sanctions after this trial, but I’m holding you in contempt.”
Notwithstanding the fact that the Court held Mr. James in contempt when Jeremiah Johnson was cross-examined, Mr. James on the second page of the cross examination, you asked this question: ‘You weren’t really worried about getting caught?
“Yes, sir.”
You violated the Court’s ruling. And for violating the Court’s ruling with regard to the opening statement, the Court hereby fines you $2,500.
For violating the Court’s ruling with regard to the question of Jeremiah Johnson about getting caught, the Court fines you $2,500.
On Page 6 of the cross examination, you asked “I mean, you didn’t want to get arrested did you?
“No, sir.
“I mean did you know what you were doing was wrong?
‘Yes, sir.
“Did you know if you got caught you might get in trouble?
J^'Yes, sir.
“Did you know that if you might get caught, you might go to jail?
‘Yes, sir.”
For violating the Court’s ruling in that regard the Court fines you $2,500.
Later in the same cross examination, “were you concerned about fact that you had been caught committing felonies?
“No, sir, not at all.”
Another direct violation of the court’s ruling.
The Court fines you $2,500.
Later in the cross examination, “would you agree with me that no matter what, you don’t want to get caught?
‘Yes, sir.”
The Court fines you $2,500.
Next page, “did you have any reason to believe they didn’t want to get caught?”
$2,500.
“Are you concerned then about the possibility of someone seeing you—
“No, sir.
“ — getting caught?
“No, sir.”
The Court fines you $2,500.
1 l4Page 18, “at what point do you decide you’re no longer concerned about getting caught?
“After we’re leaving.”
The Court fines you $2,500.
“At this point, do you still feel like you’ve gotten away with it, don’t have anything to worry about?
‘Yes, sir.
“Why did you all split up?
“Because if you run with somebody else, you’re going to get caught.”
You asked the question “again, when this is all said and done, the last thing you want to have happen is get caught, right?”
2,500, Mr. James.
And then your closing argument, you said “these young men were not kids out after a high school game toilet-papering someone’s house. They were out roaming around while the rest of the people in Little Rock slept, stealing, committing adult felonies, committing adult crime. It’s important to put all of this in context. The last thing they wanted was to get caught.”
Fine you $2,500.
And let me be very, very clear. I was intentional when we had our conference on the 18th when I said the defense is only permitted to inquire of the juvenile witnesses Johnson and Walker for the purpose of challenging or establishing credibility on grounds of bias or motive but not for the purpose of showing state of mind as to those witnesses at the time of the occurrence or for the purpose of establishing their character.
The reason I made that language was that was the very grounds for the defense motion fop reconsideration was based.
|iSThe court was asked to recopsider its ruling in limipe based upon the Davis versus Alaska holding, which explicitly addresses the issue of bias and motive, and the court granted the relief the defense sought and in the face of getting the relief that the defense sought, the defense still disobeyed the Court’s limitation.
Mr. James, I will tell you that I do not like doing this because, quite frankly, I expect better of lawyers in this court. I expect lawyers to obey the Court’s rules. I expect lawyers who tell me they understand my rulings to follow them. I expect lawyers who get the relief they ask for to live within the relief they get.
And when the lawyers don’t do that and then are held ip contempt and then persist in doing the very thing that they’re held in contempt by, I realize it’s not an accident.
The last thing I will say about this is, as you might imagine, I have given some thought to whether or not a fine or jail would be the appropriate remedy-
I decided against jail for two main reasons: Number One, Hr. James, your client, Mr. Hastings needs your services. We have a pew trial and if I gave you five days of jail time for every time I held you in contempt, we would be putting the trial off.
But, number two, I don’t think that it will make any difference. I think the fine is sufficient. You can prove me wrong. I hope you won’t, but I hope we understand each other.
When I rule, you obey and if you can’t, I can issue the sanctions accordingly.
James asserts that the circuit court erred because he was not afforded his constitutional and statutory safeguards at the June 23, 2013 hearing when the court announced the contempt citations, and “there was nothing [he] could have said,” as he would have been required to interrupt the judge. Relying on Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), James argues that the circuit court “ambushed” him and that he could not have responded. The circuit court 1 ^responds that James did not con-tfemporaneously object to the citations, but instead first belatedly objected to the citations in his motion for new trial and to vacate contempt findings; thus he failed to preserve a review by this court. The circuit court also responds that James’s arguments are without merit.
In addressing James’s arguments, we are guidfed by our law on criminal contempt and notice, we explained in Ivy v. Keith, 351 Ark. 269, 279, 92 S.W.3d 671, 677 (2002), that
[o]ur constitution and case law make it clear that the courts of this state have inherent power to punish a contemnor for contempts committed in the presence of the court or in disobedience of process. Ark. Const, art. 7, § 26. See also Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000); Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993); Yar brough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 128 (1988). This inherent power goes beyond the statutory authority provided by § 16-10-108. There is no question that willful disobedience of a valid order of a court is contemptuous behavior. Ark.Code Ann. § 16-10-108(a)(8) (Repl.1999). Before a person can be held in contempt for violating a court order, the order must be definite in its terms, clear as to what duties it imposes, and express in its commands. E.g., Lilly v. Earl, 299 Ark. 103, 771 S.W.2d 277 (1989). We have observed in the past that contempt is a matter between the judge and the litigant, and not between the two opposing litigants. See Hickinbotham v. Williams, 228 Ark. 46, 305 S.W.2d 841 (1957).
In Fitzhugh, 296 Ark. 137, 140, 752 S.W.2d 275, 277 (1988), we explained the
fundamental proposition that criminal penalties may not be imposed on an alleged contemner who has not been afforded the protections that the Constitution requires of criminal proceedings, [citing Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988).] The Due Process Clause, as applied in criminal proceedings, requires that an alleged contemner be notified that a charge of contempt is pending against him and be informed of the specific nature of that charge. Id.
In Arkansas Department of Human Services v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998) 117we held:
Ark.Code Ann. § 16-10-108, ... sets forth the court’s power to punish for criminal contempt and provides in part that ‘the party charged shall be notified of the accusation and shall have a reasonable time to make his defense. Moreover, the Due Process Clause requires that an alleged contemnor be given notice of the charge of contempt pending against him and be informed of the specific nature of the charge.
Id., at 539-40, 970 S.W.2d at 237 (1998) (citing Fitzhugh, 296 Ark. 137, 752 S.W.2d 275).
Further, we find persuasive the reasoning in Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 96 L.Ed. 717 (1952), where in addressing summary criminal contempt pursuant to Rule 42 of the Federal Rules of Criminal Procedure, the United States Supreme Court explained,
Summary punishment always, and rightly, is regarded with disfavor and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes. But the very practical reasons which have led every system of law to vest a contempt power in one who presides over judicial proceedings also are the reasons which account for it being made summary. Our criminal processes are adversary in nature and rely upon the self-interest of the litigants and counsel for full and adequate development of their respective cases. The nature of the proceedings presupposes, or at least stimulates, zeal in the opposing lawyers. But their strife can pervert as well as aid the judicial process unless it is supervised and controlled by a neutral judge representing the overriding social interest in impartial justice and with power to curb both adversaries. The rights and immunities of accused persons would be exposed to serious and obvious abuse if the trial bench did not possess and frequently exert power to curb prejudicial and excessive zeal of prosecutors. The interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defenders.
In Taylor, supra, the United States Supreme Court addressed a criminal-con tempt finding when the contemptor was not allowed to respond to the court’s charges and not afforded the necessary due-process requirements. The court explained:
The provision of fundamental due process protections for contemnors accords with our historic notions of elementary fairness. While we have no desire ‘to imprison the discretion of judges within rigid mechanical rules,’ Offutt v. United States, 348 U.S. [11] at 15 [75 S.Ct. 11, 99 L.Ed. 11 (1954) ], we remain unpersuaded that ‘the additional time and expense possible involved . [ .1S will seriously handicap the effective functioning of the courts.’ Bloom v. Illinois, supra, 891 U.S. [194], at 208-209 [88 S.Ct. 1477, 20 L.Ed.2d 522 (1968) ]. Due process cannot be measured in minutes and hours or dollars and cents. For the accused contemnor facing a jail sentence, his ‘liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.’ Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2598, 33 L.Ed.2d 484 (1972).
Taylor, 418 U.S. at 500, 94 S.Ct. 2697.
Finally, our review of Ark. Code Ann. § 16-10-108(c), the statute at issue here, requires that we construe criminal statutes strictly, resolving any doubts in favor of the defendant. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). “We construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation.” Walden v. State, 2014 Ark. 193, at 7-8, 433 S.W.3d 864, 870.
With these standards identified, we review contempt citations two through ten. Citations two through nine were rendered four days after the violations had allegedly occurred. The tenth and final citation was rendered one day after the violation had allegedly occurred.
The plain language of Ark.Code Ann. § 16-10-108(e) provides: “Contempts committed in the immediate view and presence of the court may be punished summarily. In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his or her defense.” A plain reading of this statute is that when a contumacious act occurs within the immediate view and presence of the court it may be punished summarily. “Summarily” is defined as “performed speedily and without ceremony; summary | ^justice.” American Heritage Dictionary, 1733 (4th ed.2000). “Immediate” is defined as “without delay.” Id. at 877. However, in the case of contempt that is not announced immediately at the time of the offense by the circuit court, the party charged shall be notified of the accusation and shall have a reasonable time to make his or her defense. See Ark.Code Ann. § 16-10-108(c).
Thus, Ark.Code Ann. § 16-10-108(c) is entirely consistent with the inherent power of the court to summarily punish contumacious conduct occurring in its presence. This power is necessary to enforce the authority of the court and to protect the dignity of the proceedings before it. See Codispoti v. Pennsylvania, 418 U.S. 506, 513, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974) (“There are recurring situations where the trial judge, to maintain order in the courtroom and the integrity of the trial process in the face of an ‘actual obstruction of justice,’ In re McConnell, 370 U.S. 230, 236, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962); see also In re Little, 404 U.S. 553, 555, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972), convicts and sentences the accused or the attorneys for either side for various acts of contempt as they occur.”). However, when the contumacious conduct has occurred in the past, even though it may have occurred in the presence of the court, the need to punish summarily is not present. In those cases, criminal penalties may not be imposed on the alleged contemner who has not been afforded the protections that the constitution requires of criminal proceedings, including notice and a reasonable time to make his defense. See Sacher, supra.
Here, in reviewing the record with Ark.Code Ann. § 16-10-108(c) and orn-ease law, the circuit court’s announcement of contempt citations two through ten did not occur “immediately.” The plain language of the statute indicates that to summarily hold someone |2r)in contempt, the citation must be issued without delay; otherwise, the eontemnor must be given notice and reasonable opportunity to defend himself. Therefore, based on Ark.Code Ann. § 16-10-108(c) and the constitutional safeguards previously discussed, the circuit court was required to notify James of the accusation and provide James a reasonable time to make his defense. Here, the record demonstrates that the circuit court erred by denying James notice and a reasonable time to make his defense.
Further, a careful review of the record demonstrates that James’s conduct did not violate the circuit court’s order. “Before a person can be held in contempt for violating a court order, the order must be definite in its terms, clear as to what duties it imposes, and express in its commands. E.g., Lilly v. Earl, 299 Ark. 103, 771 S.W.2d 277 (1989).” Ivy, 351 Ark. at 279, 92 S.W.3d at 677 (2002). Here, the order stated in pertinent part that James was not permitted to ask the witnesses “about the fact that they were on probation in juvenile court ... or specify the offenses on which the probation was based,” or “refer to any other offenses, juvenile offenses” for the purpose of showing their character or establishing then-state of mind at the time of the occurrence. James was not precluded by the order from inquiring as to the witnesses’ state of mind at the time of the occurrence, but rather was prohibited from using their juvenile probationary status to establish their state of mind or character. James cannot be held in contempt for not following what the circuit court meant to order, but can only be held in contempt for violating the circuit court’s express commands. Based on the record before us, we cannot say that James’s conduct violated the circuit court’s order and therefore, substantial evidence does not support the circuit court’s finding of |⅞1 contempt.
Based on our discussion, we reverse and dismiss citations two through ten, and do not reach James’s remaining points on appeal with regard to those citations.
Affirmed in part; reversed and dismissed in part.
HOOFMAN, J., concurs without opinion.
. James’s second point on appeal does not pertain to the first contempt citation.
. We further note that James’s argument is without merit because the contempt citations from June 23, 2013, were read orally from the bench. This order was later memorialized in a written order on February 25, 2014, a Tuesday.
. While recognizing the circuit court’s contemporaneous objection argument, we are convinced by our review of the record, that any objection would have been futile as the circuit court summarily rendered its contempt citations. See Taylor, 418 U.S. 488, 94 S.Ct. 2697. | [
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KAREN R. BAKER, Justice.
| jAppellant J.E.M., biological father of Baby Boy B., appeals from a Faulkner County Circuit Court order that determined that his consent to the adoption of Baby Boy B. was not required pursuant to Arkansas Code Annotated section 9-9-206(a)(2) (Repl.2009). Appellant argues that the circuit court erred by finding that his consent to the adoption was not required, by granting the decree of adoption in favor of appellees G.F.J. and S.L.J., and by finding that Arkansas Code Annotated sections 9-9-206(a)(2) and 9-9-207(a)(ll) do not violate the Constitution of the United States. Our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(S) and (4) (2011), as the issues presented involve federal constitution interpretation and are of significant public interest. We reverse and remand.
Appellant and S.M.B. began dating while both were attending Southeast Missouri State University. In 2009, S.M.B. discovered that she was pregnant, and she and appellant visited |2Birth Right to get information about the pregnancy. S.M.B. signed up with an adoption agency and told appellant of her plans afterwards. S.M.B. told appellant that she would leave Missouri for the adoption; although appellant inquired where she would be going, she refused to tell him.
Shortly after learning of the adoption plan, appellant contacted an attorney in Missouri in order to find out about his parental rights. He did not ultimately retain that attorney. Appellant then filed with the Missouri Putative Father Registry on March 30, 2010. S.M.B. departed Missouri on or about May 13, 2010, moving to Lubbock, Texas, into housing furnished by Adoption Covenant, a non-profit child-placement agency. While S.M.B. was in Texas, she and appellant communicated by text messages and telephone calls, but she continued to conceal her whereabouts, even when appellant inquired. Appellant repeatedly told S.M.B. that he wanted them to be a family so that they could raise the unborn child together. However, appellant informed S.M.B. that the decision whether to put the baby up for adoption was hers.
Initially, the adoption was to be filed in Texas, and Adoption Covenant had an attorney draft the appropriate documents. In June and July 2010, that attorney sent several sets of documents to appellant so that he could relinquish his parental rights. Appellant refused to sign the documents, and he filed an original petition to establish parentage and an original petition affecting the parent-child relationship in Lubbock, Texas, on July 23, 2010. On July 24, 2010, ^appellant signed with the Illinois Putative Father Registry. The attorney working with Adoption Covenant learned about the filing of appellant’s petitions in Texas and discussed the filing with S.M.B. Following this discussion, S.M.B. moved to Arkansas in late July or early August 2010. S.M.B. did not inform appellant of her move to Arkansas.
On or about August B, 2010, appellant filed with the Texas Putative Father Registry. He attempted service on S.M.B. of the petition he had filed in Lubbock, Texas, but was unsuccessful. Appellant then learned that S.M.B. had moved to Arkansas, but was unaware of her specific location. He filed with the Arkansas Putative Father Registry on or about August 17, 2010. S.M.B. signed a relinquishment of parent-child relationship and a consent to guardianship and adoption on September 3, 2010. Baby Boy B. was born on September 4, 2010, in Washington County, Arkansas, and was placed with appellees in Pulaski County, Arkansas, on that same day. Appellant was not informed of the birth, and on September 8, 2010, filed a complaint for paternity and custody of an unborn child in the circuit court of Washington County, Arkansas.
A petition for temporary guardianship of Baby Boy B. was filed on September 8, 2010, in Faulkner County, Arkansas, stating that the putative father had never been married to the biological mother, that he had provided no support, and that his consent was not required pursuant to Arkansas Code Annotated section 9-9-206. The circuit court found that the matters stated in the petition were true and entered an order on September 9, 2010, appointing 14Grace Adoptions as temporary guardian. Appellees filed a petition for adoption on September 13, 2010, and appellant filed a complaint in intervention on or about October 19, 2010. On October 26, 2010, appellant filed a motion to transfer and consolidate the Washington County proceeding with the Faulkner County adoption case. The motion was granted, and in Faulkner County Circuit Court, there was a guardianship case and a separate adoption case.
On November 16, 2010, a hearing was held to determine whether appellant’s consent was required pursuant to Arkansas Code Annotated section 9-9-206. At the conclusion of the hearing, the circuit court determined that appellant’s consent was not required. A decree granting the adoption of Baby Boy B. to appellees was entered on January 5, 2011. Appellant filed two separate appeals, one as to the guardianship and one as to the adoption. The instant case is a timely appeal from the decree of adoption.
We review issues of statutory construction de novo, as it is for this court to decide what a statute means. Daimler-Chrysler Corp. v. Smelser, 375 Ark. 216, 289 S.W.3d 466 (2008). In this regard, we are not bound by the circuit court’s decision; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct on appeal. Id. However, when it is the circuit court’s application of a statute to the facts before it, our standard of review is clearly erroneous. Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93. A finding is clearly erroneous when, despite evidence to support it, we are left on the evidence with the firm conviction that a mistake has been committed. Morningstar v. Bush, 2011 Ark. 350, 383 S.W.3d 840.
Appellant argues that the circuit court erred in finding that pursuant to Arkansas Code | ¡Annotated section 9 — 9—206(a)(2) his consent to the adoption was not required because he failed to develop a significant custodial, personal, or financial relationship with Baby Boy B. He seeks reversal of the judgment, vacation of the decree of adoption in favor of appellees, and remand to the circuit court to allow him to proceed on his complaint for custody. The circuit court found appellant’s testimony credible regarding his efforts to form the relationship section 9-9-206 requires, stating “I do think [appellant] did everything he [could] to protect his rights.” However, the court determined that the holding in X.T. v. M.M., 2010 Ark. App. 556, 377 S.W.3d 442, required strict compliance with section 9-9-206(a)(2), and appellant did not prove that he had developed a significant custodial, personal, or financial relationship with Baby Boy B. before the petition for adoption was filed. Resolution of this issue requires this court to interpret section 9-9-206(a)(2).
Section 9-9-206(a)(2) reads as follows:
(a) Unless consent is not required under § 9-9-207, a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:
(2) The father of the minor if the father was married to the mother at the time the minor was conceived or at any time thereafter, the minor is his child by adoption, he has physical custody of the minor at the time the petition is filed, he has a written order granting him legal custody of the minor at the time the petition for adoption is filed, a court has adjudicated him to be the legal father prior to the time the petition for adoption is filed, or he proves a significant custodial, personal, or financial relationship existed with the minor before the petition for adoption is filed[.]
The basic rule of statutory construction is to give effect to the intent of the legislature. State Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005). In construing intent, we look to the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate means that (throw light on the subject. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). “Parental rights and the integrity of the family unit have always been a concern of this state and their protection regarded as a proper function of the courts.” Matter of Adoption of Parsons, 302 Ark. 427, 431-32, 791 S.W.2d 681, 683 (1990). We confirmed our position of giving careful protection to a natural parent’s rights in In re Adoption of Glover, 288 Ark. 59, 702 S.W.2d 12 (1986):
[T]he power of the court in adoption proceedings to deprive a parent of her child, being in derogation of her natural right to it, and being a special power conferred by the statute, such statute should be strictly construed; that ‘the law is solicitous toward maintaining the integrity of the natural relation of parent and child; and in adversary proceedings in adoption, where the absolute severance of that relation is sought, without the consent and against the protest of the parent, the inclination of the courts, as the law contemplates it should be, is in favor of maintaining the natural relation .... Every intendment should have been in favor of the claim of the mother under the evidence, and if the statute was open to construction and interpretation it should be construed in support of the right of the natural parent.’
Id. at 62-63, 702 S.W.2d at 13-14 (citing Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326 (1953) (quoting In re Cordy, 169 Cal. 150, 146 P. 532 (Cal.App.1914)).
We have also recognized that changes made by amendments may be helpful in determining legislative intent. Am. Cas. Co. v. Mason, 312 Ark. 166, 848 S.W.2d 392 (1993). In In re Adoption of SCD, 358 Ark. 51, 186 S.W.3d 225, (2004), we were “called upon to decide under what circumstances it is necessary to obtain the consent of a putative father before a child can be adopted pursuant to Arkansas Code Annotated section 9 — [9]—206 (Repl.2002).” Id. at 58-54, 186 S.W.3d at 225. That necessitated this court determining what the phrase “otherwise legitimated” means as section 9 — 9—206(a)(2), at that time, required the consent of a father who has otherwise legitimated the minor. The trial court ruled that timely registering with the Arkansas Putative Father Registry was sufficient to “otherwise legitimate” |7the child. Acknowledging that Arkansas courts had never defined the terms, we found that the father had “legitimated the child by filing with the putative father registry, initiating a petition to determine paternity, and taking other actions to establish his parentage.” Id. at 59, 186 S.W.3d at 229.
In 2005, the General Assembly amended Arkansas Code Annotated sections 9-9-206 and 9-9-207. Act 437 was entitled “An Act to Clarify the Law Regarding Adoption Consent and Subsidized Adoptions.” The Act deleted the “otherwise legitimated the minor” language from section 9-9-206(a)(2), replacing it with the requirement that, for the father’s consent to be a prerequisite to an adoption, he must have a written order granting him legal custody at the time the petition for adoption is filed, or he must prove that a significant custodial, personal, or financial relationship existed with the minor before the petition for adoption was filed. Section 9-9-207 was also amended, adding subsections (10) and (11), which state that no consent to adoption is required of a father who fails to establish a significant custodial, personal, or financial relationship with the minor prior to the time the petition for adoption is filed, even if that father is listed on the Putative Father Registry or has signed an acknowledgment of paternity.
This legislative response to In re Adoption of SCD utilized language from Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), which involved New York’s statutory scheme that protected an unmarried father’s interest in assuming a responsible role in his child’s future. The issue before the Supreme Court was whether the statutory scheme “adequately protected [the father’s] opportunity to form ... a [custodial, personal, or financial] relationship” with his two-[year-old8 child. 463 U.S. at 263, 103 S.Ct. 2985. The Court concluded that Lehr had not established any significant relationship; therefore, he was not entitled to notice of the adoption proceeding. The Court noted that
[t]he significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child’s best interests lie.
Id. at 262, 103 S.Ct. 2985. Based upon the foregoing considerations, the legislative intent in amending section 9-9-206(a)(2) was to extend protection to the father who establishes a significant custodial, personal, or financial relationship. But our inquiry does not end here. The crux of the first argument on appeal is what degree of compliance is necessary by the father such that his consent to an adoption of his minor child is required.
Appellant argues that there was only a period of approximately nine months within which he could have possibly formed a significant custodial, personal, and financial relationship with Baby Boy B. That period began in January 2010, when he learned of the pregnancy, and lasted until September 13, 2010, the date the petition for adoption was filed. As Baby Boy B. was born on September 4, 2010, appellant states that aside from the time Baby Boy B. was in útero, he had only nine days to form the requisite relationship so that his consent to adoption is required under section 9-9-206(a)(2). Thus, appellant asks this court to evaluate his efforts to establish a significant custodial, personal, and financial relationship in light of the fact that S.M.B. thwarted his attempts by concealing her exact location from him after May of 2010. |flAppeIlees contend that the statute requires literal compliance, which they assert appellant has failed to meet. They also argue that appellant failed to pursue “numerous steps available” to him in accordance with the XT. court’s statement that a putative father “can — and must — be as creative as necessary.”
We have not previously considered a situation where a father’s efforts to comply with section 9 — 9—206(a)(2) were thwarted by the mother of his newborn child. While the Arkansas Court of Appeals in X.T. v. M.M., supra, examined what constitutes a significant custodial, personal, or financial relationship under section 9 — 9—206(a) (2), we do not find its analysis applicable. In finding that the putative father’s consent to the adoption was not required, the court in XT. relied on several factors that distinguish that case from this present appeal. Specifically, the putative father was abusive toward the mother, causing her to limit contact with him. Also, the father’s argument that he could not contribute to the child’s support because he was unaware of the mother’s address was not credible in light of his knowledge of the name and telephone number of the person with whom the mother was living. Finally, there were several persons with whom the father could have established indirect contact so as to render assistance or inquire about the mother’s condition. In addition, XT. relies on a concurring opinion from the Kansas Court of Appeals, In re Adoption of M.D.K., 30 Kan.App.2d 1176, 58 P.3d 745 (2002) (Beier, J., concurring), to determine what action must be taken by a putative father to comply with section 9-9-206(a)(2). To the extent XT. adopts that standard and conflicts with this opinion, it is overruled.
Other jurisdictions have analyzed the efforts of the “thwarted putative father” in the | incontext of adoptions, and while their consent-to-adoption statutes differ from Arkansas’s statute, their analysis is instructive as it relies on Lehr, supra. In Matter of Raquel Marie X., 76 N.Y.2d 387, 559 N.Y.S.2d 855, 559 N.E.2d 418 (1990), a consolidated appeal pertaining to newborn infants, the fathers failed to comply with the literal statutory requirements giving them the right to consent to adoption of their children. The court of appeals stated that “[i]n the case of a child placed for adoption at birth, the father can have no more than a biological connection to the child, there having been no chance for a custodial relationship. Protection of this parental interest would depend, then, upon recognition of a ... right to the opportunity to develop a qualifying relationship with the infant.” Id. 559 N.Y.S.2d 855, 559 N.E.2d at 424. The court stressed that the father “who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his ... child should have an equally fully protected interest in preventing termination of the relationship by strangers, even if he has not as yet actually been able to form that relationship.” Id. 559 N.Y.S.2d 855, 559 N.E.2d at 425.
In Roe v. Reeves, 392 S.C. 143, 708 S.E.2d 778 (2011), the state statute required the unwed father’s consent to adoption if he made specified financial contributions to the mother and child. The court found that Reeves’s consent was not required because his efforts to comply with the statute had not been thwarted by the child’s mother; however, the court said
[W]e do not always require strict compliance with the literal requirements of section 63 — 9—310(A)(5)(b). For example, a father’s ability to cultivate the sort of relationship we recognized in Abernathy [v. Baby Boy, 313 S.C. 27, 437 S.E.2d 25 (S.C.1993) ] can be thwarted by the mother’s refusal to accept the father’s expressions of interest in and commitment to the child. We therefore extend the constitutional protection of a father’s relationship with his child “not only when he meets the literal requirements of section 63 — 9—310(A)(5)(b), but also when he undertakes sufficient prompt and good faith efforts to assume parental responsibility and to comply with the statute.” Otherwise, a father’s In constitutional right to form a relationship with his child that receives constitutional protection is subject to the whim of the mother.
Id. at 782 (internal citations omitted). In Abernathy, both the baby’s mother and father were in the military when the mother became pregnant. The father provided some financial support during the pregnancy and expressed an interest in marrying the mother. When the father returned from sea duty, the mother determined that she did not want any further contact with him and attempted to hide from him. The father found out about the birth when the adoption action was filed and sought to intervene. The South Carolina Supreme Court recognized that his efforts to comply with the adoption statute had been thwarted by the mother’s actions. Thus, Raquel Marie X, Abernathy, and Reeves affirmed that an unwed father seeking to enforce his right to object to an adoption of his minor child can establish good cause for failure to comply with the literal requirements of an adoption statute when his efforts were thwarted.
In this case, appellant testified regarding his efforts to form a significant custodial, personal, or financial relationship with Baby Boy B. in light of S.M.B.’s efforts to thwart him. He told his friends and his mother that S.M.B. was pregnant when he found out. He stated that he tried to go to the doctor with her but, despite his efforts, was unable to clear his schedule. They visited Birth Right, a place that furnishes basic information about pregnancies. He testified that he was romantically involved with S.M.B. from January until the time she left Cape Girardeau, Missouri, on approximately May 13, 2010. During that time, she stayed at his apartment approximately three to four nights a week, and they discussed the pregnancy. He stated that she never had much morning sickness, but he would rub her stomach and her 112back to try to comfort her as she was under a lot of stress. He purchased S.M.B. a Valentine’s Day present, which consisted of a massage for her and the baby as well as a multi-purpose diaper/school bag. Appellant realized S.M.B. was leaving Missouri when she signed with an adoption agency; however, she would not inform him when or where she was going. Appellant stated that he ascertained she was living in Texas by contacting the adoption network through which she was working, and he was able to discern a partial address when she sent him an ultrasound of Baby Boy B. However, during this time, S.M.B. refused to give to him her exact address. Appellant testified that he expressed to S.M.B. concern for her welfare and that of their unborn child, and he suggested a name for the baby. He stated that he told S.M.B. that he was always there for her.
Appellant stated that he contacted four different attorneys, two in Missouri, one in Texas, and one in Arkansas. He said that he did not reveal his plan to try to block the adoption to either S.M.B. or the adoption-agency attorney in Texas, but he said that he never signed any of the multiple sets of documents sent to him by the agency to relinquish his parental rights. He admitted that he did not provide financial support to S.M.B. during the pregnancy and was aware that she sometimes worked more than one job when she was living in Texas. He stated that his mother loaned him $1,100 to open a checking account for the benefit of Baby Boy B. At the time of the hearing, he did not have a job. Appellant filed with putative-father registries in Missouri, Texas, Arkansas, and Illinois, and filed two separate paternity and custody actions, one in Texas and one in Arkansas, before the petition for adoption was filed.
|l3After considering the testimony of appellant, S.M.B., and the exhibits, the circuit court found that appellant had done all that he could do to protect his rights under the circumstances. This court gives great deference to a circuit court’s findings of fact. Save Energy Reap Taxes v. Shaw, 374 Ark. 428, 288 S.W.3d 601 (2008). Clearly, S.M.B. thwarted appellant’s efforts to comply with section 9-9-206(a)(2).
Under the circumstances presented in this case, appellant took steps to form a significant custodial, personal, or financial relationship with Baby Boy B. He had not only filed with the putative-father registries in four states but had also filed paternity actions in both Texas and Arkansas. He had provided some support to S.M.B. during the pregnancy and had established an account for the support of the baby. Appellant did not furnish financial support to S.M.B. after she left Missouri, but she refused to inform him of her specific location. While appellees suggest that he could have done more, that is not the question. Instead, the question is whether appellant’s efforts to establish a significant custodial, personal, or financial relationship, in light of S.M.B.’s thwarting of his efforts, were sufficient such that his consent to the adoption was required pursuant to section 9-9-206(a)(2). We hold that they were. And, because they were, the circuit court’s finding that appellant’s consent to the adoption was not required is clearly erroneous. Accordingly, we reverse the finding that appellant’s consent is not required, vacate the decree of adoption, and remand for further proceedings consistent with this opinion.
Appellant’s second argument is that because he demonstrated that his consent to the adoption was required, the circuit court erred in granting the adoption in favor of appellees pursuant to Arkansas Code Annotated sections 9-9-206(a)(2) and 9 — 9—207(a)(ll) without a 114finding that appellant unreasonably withheld consent under Arkansas Code Annotated section 9-9-220. Appellant requests that we vacate the adoption and allow him to proceed in his complaint for custody or, in the alternative, vacate the adoption and remand for a determination of whether he unreasonably withheld his consent. Considering our disposition of appellant’s first argument, it is unnecessary for us to address this argument.
Appellant’s third argument is that Arkansas Code Annotated sections 9-9 — 206(a)(2) and 9-9-207(a)(ll) are unconstitutional. While appellant clearly requested the circuit court to rule on this issue, the court declined. The order states:
[Appellant] properly requested a ruling on the constitutionality of Ark.Code Ann. § 9-9-206 and 9-9-207, but the Court declined to rule on the constitutionality of said statutes. The constitutionality arguments were properly raised and preserved for appeal.
The order is incorrect in finding that the constitutionality arguments are preserved for appeal. To preserve an argument for appeal, even a constitutional one, a party must obtain a ruling from the circuit court. Carson v. Cnty. of Drew, 354 Ark. 621, 128 S.W.3d 423 (2003). While the circuit court may not be the final arbiter of a statute’s constitutionality, it must rule on the issue in order to preserve the issue for appeal. Because appellant did not obtain a ruling on whether Arkansas Code Annotated sections 9 — 9—206(a)(2) and 9-9-207(a)(ll) violate the United States Constitution, the issue is not preserved for appellate review, and we do not address it.
Reversed and remanded.
CORBIN and DANIELSON, JJ., concur.
. Appellant testified that he filed with the Illinois registry because it was where S.M.B. lived before attending college, and he thought she might return there to have the baby. | [
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DONALD L. CORBIN, Justice.
|,Appellants, Christopher and Erin La-Font, individually and as guardians for a minor, Tyler LaFont, appeal from the judgment of the Clark County Circuit Court entered pursuant to a jury verdict in their favor but awarding costs to Appellee, Jana C. Mooney Mixon, pursuant to Rule 68 of the Arkansas Rules of Civil Procedure. Appellants also appeal from the separate orders denying their motion for new trial and motion for reconsideration of the award of costs. Appellants present three arguments on appeal, one of which is a question of first impression challenging Rule 68 under both the United States and Arkansas Constitutions. Jurisdiction of this appeal is therefore properly in this court pursuant to Ark. Sup. Ct. R. 1- 2(a)(1), (b)(1), (b)(3), and (b)(6) (2010). We find no merit to the appeal and affirm.
This case arises from an automobile collision involving five vehicles that occurred near the intersection of Arkansas Highways 7 and 84 in Bismarck, Arkansas. It is undisputed that the collision occurred when Appellee impacted the rearmost of four vehicles stopped in the |2southbound lane of Highway 7. The first of the four stopped vehicles was yielding to oncoming traffic while waiting to turn left into a private driveway. Appellee admitted to striking the rearmost of the four vehicles. This impact, in turn, caused further impacts down the line of stopped vehicles. Appellants occupied the third vehicle in the line of four stopped vehicles. Their automobile sustained damage from the rear-end impact with the fourth vehicle, as well as the corresponding front-end impact with the second vehicle.
Appellants filed a complaint for negligence against Appellee, claiming damages for physical injuries suffered in the collision. In her answer, Appellee admitted striking the vehicle in front of hers. Approximately fifteen months after the complaint was filed, Appellee made three separate offers of judgment to Appellants. Appellee offered $12,000 to Christopher LaFont, $14,000 to Erin LaFont, and $4,500 to Tyler LaFont.
Approximately eighteen months after the offers of judgment, with Appellee having admitted liability, the sole issue tried to the jury was Appellants’ damages. Evidence of Appellants’ injuries was disputed at trial. Appellants presented testimony from their chiropractor, Patrick Clary, D.C., that separate Appellants Mr. and Mrs. LaFont suffered injuries to their neck and spine that were due to the accident in question. Appellee presented testimony from Earl Peeples, M.D., who acknowledged some injuries, but disputed that the injuries were due to the accident in question. Family members and coworkers testified that Appellants had little or no interruption in their work and home life. Pursuant to separate, itemized verdict forms, the jury awarded total damages of $8,197.50 to Christopher LaFont, laincluding $2,782.50 for medical expenses and $415 for lost wages. Also pursuant to separate, itemized verdict forms, the jury awarded $2,447.50 to Erin LaFont for medical expenses, and $231.50 to Tyler LaFont for medical expenses. With respect to all three Appellants, the jury awarded $0 for future lost earnings, $0 for pain and suffering, and $0 for the nature, extent, and duration of any injury.
Following trial but prior to entry of the judgment, Appellee filed a motion for costs totaling $6,480.81, based on Rule 68 of the Arkansas Rules of Civil Procedure and her prior offers of judgment to all three Appellants. Appellants responded to the motion for costs, arguing among other things not relevant to this appeal, that Rule 68 violated the equal protection provisions of both the United States and Arkansas Constitutions and their right to a jury trial provided in the Arkansas Constitution.
Subsequently, the circuit court entered a written judgment in which it acknowledged the jury verdicts but then granted in part Appellee’s motion for costs in the amount of $6,091.72. The judgment then accordingly decreed that Appellants take $0 on their complaint against Appellee and that Appellee take $215.22 on her motion for costs against Appellants. On the same day it entered judgment, the circuit court also entered a twenty-page memorandum opinion detailing the court’s reasoning for granting Appellee’s motion for Rule 68 costs.
Appellants timely filed a motion for new trial pursuant to Rule 59 of the Arkansas Rules of Civil Procedure. In addition to claiming that the verdict was too low and not |4supported by substantial evidence, Appellants claimed that the jury committed misconduct by ignoring the court’s instructions and by rendering an inconsistent verdict. Appellants also claimed that Appellee’s counsel made improper and prejudicial remarks during closing argument. The circuit court timely entered an order summarily denying Appellants’ motion for new trial.
Appellants then filed a motion for reconsideration of their motion for new trial. On the same day, Appellants filed a separate motion for reconsideration of the award of Rule 68 costs. In this motion, Appellants challenged the constitutionality of Rule 68 on grounds of equal protection, due process, right to jury trial, and the “without purchase” clause of the Arkansas Constitution in article 2, section 13. Appellants also claimed the rule was void for vagueness. The circuit court entered an order summarily denying the motion for reconsideration of Rule 68 costs. Appellants timely appealed each of these rulings, and we now consider their three arguments for reversal.
I. New Trial — Jury Failed to Follow Court’s Instructions
Appellants’ first argument for reversal is that the circuit court erred in denying their motion for new trial because the jury did not award all elements of damages consistent with the court’s instructions. The court instructed the jury on four distinct elements of damage for Appellants Erin and Tyler LaFont and on five distinct elements of damage for Christopher LaFont. However, the jury awarded damages based on only one element of damages, medical expenses, for Appellants Erin and Tyler LaFont, and on only two elements of damages for | ¡¡Appellant Christopher LaFont, medical expenses and lost wages. Specifically, Appellants contend on appeal that because the jury awarded some damages for medical expenses, that necessarily means that the jury determined Appellants suffered some injury, which in turn necessarily means that the jury failed to follow the court’s instructions to award damages for the nature and extent of the injuries and the pain and suffering they claimed accompanied those injuries. In short, Appellants claim that the jury’s award of some but not all of the elements of damages itemized on the verdict form was caused by the jury’s failure to follow instructions that resulted in an inconsistent verdict and, therefore, warrants a new trial.
The record reveals that after the verdict was read in open court, Appellants’ counsel requested that the jury be polled; each juror responded that the verdict as read was his or hers. The record also reflects that Appellants made no further objection or argument to the circuit court that the verdict was inconsistent or contrary to the court’s instructions. The argument now presented on appeal was not presented to the circuit court until Appellants filed their motion for new trial.
Our law is well settled that the time to object to an irregularity or inconsistency in the verdict or to correct or clarify the verdict is before the jury is discharged, and any failure to so object operates as a waiver of the irregularity or inconsistency. SEECO, Inc. v. Hales, 341 Ark. 673, 22 S.W.3d 157 (2000); P.A.M. Transp., Inc. v. Ark. Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993); Center v. Johnson, 295 Ark. 522, 750 S.W.2d 396 (1988); Hodges v. Bayley, 102 Ark. 200, 143 S.W. 92 (1912). The purpose of this rule is to allow the |f,trial court to resubmit an inconsistent verdict to the jury. P.A.M. Transp., Inc., 315 Ark. 234, 868 S.W.2d 33. This court has explained as follows:
The verdicts of a jury should in any and all cases reflect the true and correct and final conclusions of the jury, and if before discharging the jury it was made known to the court that the jury had misunderstood the instructions, no error is committed in permitting the jury to further consider their verdict, after the instructions have been explained.
Clift v. Jordan, 207 Ark. 66, 69-70, 178 S.W.2d 1009, 1011 (1944) (citing Street v. Stuart, 38 Ark. 159 (1881)). Because Appellants did not bring their argument concerning the failure to follow instructions and inconsistent verdict to the trial court’s attention before the jury was discharged, they have waived the matter. We therefore express no opinion on whether the verdict as rendered in this case amounts to a failure to follow instructions or an inconsistent verdict, or whether, as Appellee responds, it amounts to the jury’s rejection of Appellants’ evidence and acceptance of Appellee’s theory that Appellants did not suffer any injury proximately caused by the accident on trial, but did act reasonably in seeking medical attention soon thereafter.
II. New Trial — Improper Closing Argument
For their second point for reversal, Appellants contend that the circuit court erred in denying their motion for new trial based on remarks of Appellee’s counsel during closing argument. Appellants contend that the challenged remarks were an improper comment on counsel’s own observations and opinions and amounted to testimony bearing on Appellants’ |7credibility. The challenged remarks, the objection, and the court’s resolution of the issue occurred as follows:
MR. Huckabay: ... And by the way, for 3 days, I have not seen, maybe you have, uncomfortable sitting, uncomfortable posture. That speaks. That’s evidence. What they’ve done right here.
MR. Chaney: Your Honor, I’m going to object. It’s clearly improper for counsel to try to testify about what he saw or didn’t see in the courtroom.
Mr. Huckabay: I’ll retract that. If anybody has seen any movements or whatever, but I asked her, and I don’t think it is improper, but I’ll just retract it.
The Court: Well, it’s been retracted, so go ahead and proceed.
Appellants concede that Appellee’s counsel retracted his remarks. The record is clear that the retraction occurred in the presence of the jury and that Appellee’s counsel proceeded with his argument into other subject areas without repeating similar comments. The record is also clear that Appellants did not request an admonition to the jury, a continuance, or a mistrial. However, the court did later give the general instruction that arguments of counsel are not to be considered as evidence.
A trial court is accorded great latitude in correcting any prejudicial effect of argument by counsel, and we do not reverse unless it appears that prejudice resulted from the improper argument and the court’s admonition was insufficient to remove the prejudicial effect from the jurors’ minds. Stamper v. Aluminum & Zinc Die Cast Co., 283 Ark. 92, 671 S.W.2d 170 (1984). Appellants now claim that Ap-pellee’s counsel’s closing argument was highly prejudicial as evidenced by a low award of damages, but Appellants’ counsel did not request | san admonition or mistrial after the retraction. Instead, Appellants’ counsel appeared satisfied with the retraction. Moreover, the jury was later in structed that they were not to consider arguments of counsel as evidence. In similar circumstances, this court has found no reversible error. See, e.g., id.; see also Howe v. Freeland, 237 Ark. 705, 875 S.W.2d 666 (1964).
We likewise find no reversible error in the present case. While we agree that attorneys should refrain from making personal comments on the evidence, the remarks here were immediately retracted upon objection, and the comments did not continue. Appellants’ counsel appeared satisfied with the retraction as he did not immediately request an admonition, continuance, or mistrial. Even so, the circuit court did later give the general instruction that counsel’s remarks were not to be considered evidence. The case then proceeded to a jury verdict in favor of Appellants, albeit in an amount that is not acceptable to Appellants. We see no prejudice here, and no abuse of discretion in denying the motion for new trial on these grounds.
Before moving on, we note briefly Appellants’ contention that the alleged error of the challenged remarks was compounded by the fact that Appellants had sought to exclude this type of argument in a motion in limine. According to the record, a pretrial hearing was held on a motion in limine that covered many subjects, one of which was what constitutes proper closing arguments; the record does not, however, include the written motion in limine that was discussed. The circuit court reserved ruling on the issue of closing argument until it was time for closing argument to be presented; thus, there is no merit to this contention.
bill. Rule 68
As their third and final point for reversal, Appellants assert that Rule 68, “as written and applied is unconstitutional since it does not treat plaintiffs and defendants equally.” Within this third point, Appellants raise several subpoints relating to the right to trial by jury in article 2, section 7 of the Arkansas Constitution, the equal protection provisions of the United States and Arkansas Constitutions, the “without purchase” clause in article 2, section 13 of the Arkansas Constitution, and the void for vagueness doctrine. After reviewing the rule and its purpose, we consider these subpoints separately.
Rule 68 provides in its entirety as follows:
Rule 68. Offer of Judgment.
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and judgment shall be entered. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment exclusive of interest from the date of offer finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability. For purposes of this rule, the term “costs” is defined as reasonable litigation expenses, excluding attorney’s fees.
Ark. R. Civ. P. 68 (2010).
|inThe operation of the rule is clear. When a defendant timely makes a good-faith offer of judgment that is not accept ed, and the plaintiff fails to recover a judgment that is more favorable than the defendant’s offer, the liability for payment of the defendant’s post offer costs are shifted to the plaintiff.
Rule 68 encourages early settlement of claims and protects the party who is willing to settle from expenses and costs that will subsequently accrue. Warr v. Williamson, 359 Ark. 234, 195 S.W.3d 903 (2004). The purpose of Rule 68 is to provide a defendant the means to compel a plaintiff to consider anew the merit of his or her claim at the time the offer is made and whether continued litigation is appropriate. Id.
A. Right to Trial by Jury and Right to be Made Whole
Appellants contend that Rule 68, which by its terms applies only to offers made by defendants, violated their fundamental right to a trial by jury under the Arkansas Constitution because Rule 68 is not the least restrictive means of achieving the state’s interest in encouraging the settlement of claims. Appellants contend that, if Rule 68 was reciprocal and allowed plaintiffs as well as defendants to make offers of judgment and enforce them with the rule’s cost-shifting benefits, then Rule 68 would be implemented in the least restrictive manner possible. At the outset, we note that, while Appellants invoke their right to a jury trial in making this argument, this is in essence an equal-protection argument, and we address Appellants’ equal-protection claim in detail below.
Inin its memorandum opinion, the circuit court found Black v. Goodwin, Loomis and Britton, Inc., 239 Conn. 144, 681 A.2d 293 (1996), to be persuasive and concluded that Rule 68 did not infringe on Appellants’ right to a jury trial. The circuit court reasoned that, despite Appellants’ claims that their right to trial by jury was chilled or limited by Rule 68, they elected to go forward and try their case before a jury. Were Rule 68 to have the chilling effect claimed by Appellants, we agree with the circuit court that they “would have accepted the prior offers of judgment rather than having tried the case to a verdict.”
The right to a jury trial under article 2, section 7 of the Arkansas Constitution is a fundamental right that extends to all cases triable at common law. Anglin v. Johnson Reg’l Med. Ctr., 375 Ark. 10, 289 S.W.3d 28 (2008). While this court has not previously considered whether Rule 68 violates the right to trial by jury, we have previously held that when the right to jury trial is not precluded by a procedural rule or statute, the procedural rule or statute passes constitutional muster. See, e.g., id.; see also Neeley v. Barber, 288 Ark. 384, 706 S.W.2d 358 (1986). Accordingly, given that Appellants did receive a jury trial, we find no error in the circuit court’s ruling that Rule 68 did not infringe on Appellants’ right to trial by jury.
As part of their jury-trial argument, Appellants also contend that Rule 68 violates the public policy behind the “made whole” doctrine adopted by this court in Franklin v. Healthsource of Arkansas, 328 Ark. 163, 942 S.W.2d 887 (1997). This aspect of Appellants’ argument was neither raised nor ruled upon below, and we therefore do not consider it on appeal. See Bell v. Bershears, 351 Ark. 260, 92 S.W.3d 32 (2002).
|12B. Equal Protection
Appellants contend that Rule 68, as written, violates the equal protection clauses of the United States and Arkansas Constitutions because it allows a defendant to make an enforceable offer of judgment but does not extend the same privilege to a plaintiff. In addition, Appellants also claim that, as applied to this case, Rule 68 discriminates against Appellants in that all of them were travelers riding in motor vehicles and were therefore similarly situated. Appellants argue that the rule as applied to this case improperly distinguishes Appellee as an admittedly negligent operator of a motor vehicle from Appellants. According to Appellants, this distinction is not rationally related to achieving the legitimate state purpose of promoting settlement of claims between parties.
At the outset we note that, despite Appellants’ assertions to the contrary, the only basis upon which Rule 68 distinguishes between Appellants and Appellee is on the basis of their classification as a plaintiff or a defendant. This is true with respect to the way the rule is written and the way it is applied.
Having previously determined that Appellants’ fundamental right to a jury trial under our state constitution has not been violated, and there being no suspect classification, the applicable constitutional standard of review is the rational-basis test. Archer v. Sigma Tau Gamma Alpha Epsilon, Inc., 2010 Ark. 8, 362 S.W.3d 303. Under the rational-basis test, we presume Rule 68 to be constitutional and rationally related to achieving its objective. See id. | i;iAs the party challenging Rule 68, it is Appellants’ burden to prove the rule unconstitutional. Id.
In its memorandum opinion, the circuit court observed that other courts have held that plaintiffs and defendants are not similarly situated for purposes of equal-protection analysis. See, e.g., Wall v. Cherrydale Farms, Inc., 9 F.Supp.2d 784 (E.D.Mich.1998); Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 687 A.2d 506 (1997). The circuit court then went on to rule that, even assuming ar-guendo that plaintiffs and defendants were similarly situated, Rule 68 would easily pass muster under a rational-basis standard of review because, as the United States Supreme Court observed when considering Rule 68 of the Federal Rules of Civil Procedure, the policy of the rule in encouraging settlements is neutral, favoring neither plaintiffs nor defendants. Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985), superseded on other grounds by statute, Civil Rights Act of 1991, Pub. L. No. 102-166. The circuit court quoted the following in its memorandum opinion:
Rule 68’s policy of encouraging settlements is neutral, favoring neither plaintiffs nor defendants; it expresses a clear policy of favoring settlement of all lawsuits. Civil rights plaintiffs — along with other plaintiffs — who reject an offer more favorable than what is thereafter recovered at trial will not recover attorney’s fees for services performed after the offer is rejected. But, since the Rule is neutral, many civil rights plaintiffs will benefit from the offers of settlement encouraged by Rule 68. Some plaintiffs will receive compensation in settlement where, on trial, they might not have recovered, or would have recovered less than what was offered. And, even for those who would prevail at trial, settlement will provide them with compensation at an earlier date without the burdens, stress, and time of litiga tion. In short, settlements rather than litigation will serve the interests of plaintiffs as well as defendants.
Id. at 10, 105 S.Ct. 3012.
|MAlthough the Supreme Court made these comments when addressing the question of a civil-rights plaintiff’s effective access to the judicial process, rather than in an equal-protection context, we nevertheless agree with the statements concerning the neutral effect of the federal Rule 68, which is similar to our Rule 68 in that both apply only to offers made by defendants.
We agree with the circuit court that plaintiffs and defendants are not similarly situated classifications or groups. The former is a party to a lawsuit by choice, while the latter of course is not. As a result, the plaintiff may voluntarily offer to settle, or even dismiss, his case, and therefore needs no means of enforcing an offer of settlement. A defendant, on the other hand, has no such ability to enforce an offer of settlement. There is no similarity between the two parties, and in fact they are opposites. “The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 84 L.Ed. 1124 (1940). Accordingly, we conclude the circuit court was correct and that Appellants have failed to carry their burden of establishing that Appellants and Appellee are similarly situated in the pretrial settlement context. Consequently, in light of the purpose of fostering settlement, it is not irrational for Rule 68 to distinguish between the two. The equal protection clauses of both the Arkansas and United States Constitutions are therefore not implicated.
C. Void for Vagueness; Without Purchase
With respect to Appellants’ final constitutional challenge to Rule 68, we note Appellants’ argument that Rule 68 is void for vagueness because it mandates recovery of |i5“costs,” including “reasonable litigation expenses,” without defining what either phrase means. Appellants also claim that Rule 68 violates the “without purchase” clause of the Arkansas Constitution, which states that litigants must be able to obtain justice freely and without purchase. Ark. Const, art. 2, § 13.
Appellants raised both of these arguments for the first time in their motion for reconsideration of the award of Rule 68 costs. This court has stated that an issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal, and even a constitutional issue must be raised at trial in order to preserve it for appeal. Jones v. Double “D” Props., Inc., 352 Ark. 39, 98 S.W.3d 405 (2003). Stated another way, a party may not wait until the outcome of a case to bring an error to the trial court’s attention. Id. This principle likewise applies to the current situation. Appellants cannot be heard to complain for the first time in their motion for reconsideration after the circuit court has issued its ruling on Appellee’s motion for Rule 68 costs. Appellants did not present these arguments to the circuit court in their response to Appellee’s motion for costs, which would have been the earliest opportunity. Accordingly, we conclude these arguments were not timely raised below and are therefore not preserved for our review on appeal.
The judgment and orders awarding costs are affirmed. | [
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COURTNEY HUDSON HENRY, Judge.
| ]This malpractice case involves the direct-action statute and the changes in the law that occurred during the course of the litigation. Appellant Charles Presley challenges the orders entered by the Baxter County Circuit Court dismissing his complaint against St. Paul Fire and Marine Insurance Company (St.Paul), the insurer of appellee Baxter County Regional Hospital, Inc. (hospital), and dismissing his amended complaint against both St. Paul and the hospital. Four issues are raised on appeal. Appellant first argues that the trial court erred in dismissing the initial complaint that he brought against St. Paul pursuant to the direct-action statute. As his second point, appellant contends that the trial court erred in determining that he did not plead sufficient facts to establish the immunity of the hospital. Further, appellant 1¡¡asserts that the trial court erred in concluding that the amended complaint naming the hospital as a defendant did not relate back to the filing of the initial complaint. Appellant also argues that the trial court erred by denying his motion to allow an earlier appeal under the provisions of Rule 54(b) of the Arkansas Rules of Civil Procedure. We find merit in the first two points and reverse and remand.
On February 1, 2000, appellant received treatment at the hospital’s emergency room for injuries he sustained in an automobile accident. He subsequently received follow-up treatment from his family physician, appellee Dr. Michael Hagaman, at Hagaman’s office, referred to as appel-lee Kerr Medical Clinic. On January 25, 2002, appellant filed this malpractice suit against St. Paul as the hospital’s insurer pursuant to the direct-action statute, Arkansas Code Annotated section 23-79-210 (Supp.2009). He also asserted malprae-tice Isdaims against Dr. Hagaman and the Kerr Medical Clinic. With regard to St. Paul’s liability, appellant alleged:
That Baxter County Regional Hospital is not subject to suit in tort due to the fact that it is a cooperative, non-profit corporation, which has received 501(c)(3) designation from the Internal Revenue Service. That at the time of the events leading to the Complaint at Law, the Baxter County Regional Hospital was insured by the separate defendant, St. Paul Fire and Marine Insurance Company. Pursuant to Arkansas Code Annotated section 23-79-210, St. Paul Fire and Marine Insurance Company is directly liable for any negligent medical services performed at the Baxter County Regional Hospital and, therefore, St. Paul Fire and Marine Insurance Company is the correct party in interest.
On April 30, 2002, St. Paul filed its answer to appellant’s complaint wherein St. Paul admitted that “[sjeparate defendant St. Paul Fire and Marine Insurance Company is the proper substitute defendant pursuant to Arkansas law based on the nonprofit status of Baxter County Regional Hospital, n/k/a Baxter Regional Medical Center.”
On May 9, 2002, just nine days after St. Paul filed its answer, the supreme court handed down the decision in Clayborn v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002), where the supreme court affirmed the dismissal of a complaint filed against an insurer under the direct-action statute. The supreme court’s primary holding was that the direct-action statute was not applicable because the appellant did not plead any facts to show that the insured was a nonprofit corporation that was immune from suit in tort. The court |4remarked that it knew of no law holding that all nonprofit corporations, by virtue of their status as a nonprofit entity, are immune from suit in tort. In addition, the supreme court rejected the appellant’s assertion that the insured enjoyed charitable immunity because the complaint contained no allegation that the insured was a charitable organization. As a secondary basis for its decision, the supreme court commented that the direct-action statute would not apply in any event “because we have never held that charitable organizations are immune from suit, but rather, we have only held that they are immune from execution against their property.” Id. at 567, 75 S.W.3d at 180.
On September 23, 2002, St. Paul moved to dismiss based on the Claybom decision. The trial court granted the motion by an order dated October 6, 2003. In its order, the trial court relied on Claybom to hold that appellant had alleged no facts to support his claim of the hospital’s immunity from suit and that St. Paul was not a “proper substitute defendant directly liable for its torts.” Although the court dismissed the complaint against St. Paul, it granted appellant fifteen days to plead further pursuant to Rule 12(j) of the Arkansas Rules of Civil Procedure.
On October 20, 2003, appellant filed an amended complaint adding the hospital as a defendant and stating:
That the Baxter County Regional Hospital, Inc., is a domestic non-profit corporation organized and authorized under and by virtue of the laws of the State of Arkansas with its principal place of business in Mountain Home, Arkansas, engaged in providing medical services and may not be subject to tort suit for its negligence as hereinafter set out and if not subject to tort suit for its negligence as hereinafter set out then its liability insurance carrier, St. Paul Fire |5and Marine Insurance Company, at the time of the acts complained of and set forth in this Complaint at Law, the separate Defendant, St. Paul Fire and Marine Insurance Company, is a proper party Defendant. If in the alternative the separate Defendant Baxter County Regional Hospital, Inc., d/b/a Baxter Regional Medical Center, Inc., alone is a proper party Defendant.
Appellant also filed a brief in support of the amended complaint in which he argued that his claim against the hospital was not barred by the statute of limitations because the amended complaint should relate back to the date that the original complaint was filed under Rule 15(c) of the Arkansas Rules of Civil Procedure.
On October 27, 2003, the hospital and St. Paul filed a motion to dismiss the amended complaint. While this motion was pending, the supreme court decided the appeal of Scamardo v. daggers, 356 Ark. 236, 149 S.W.3d 311 (2004). There, the supreme court adopted the obiter dictum in Clay-bom, supra, and held that the direct-action statute does not apply to charitable organizations, as those institutions are not immune from suit. On June 14, 2004, the trial court dismissed the allegations in the amended complaint pertaining to St. Paul based on Claybom and Scamardo. The court also dismissed the amended complaint as to the hospital, ruling that the statute of limitations barred appellant’s claim against the hospital because the amended complaint did not relate back to the filing of the original complaint.
On September 24, 2004, appellant filed a motion requesting a Rule 54(b) certification so that he could pursue an immediate appeal. The trial court denied this motion on February 24, 2005. In March 2005, the trial court also denied appellant’s motion to reconsider the Rule 54(b) issue.
|fiOn December 15, 2005, the supreme court announced its decision in Low v. Insurance Company of North America, 364 Ark. 427, 220 S.W.3d 670 (2005). In that appeal, Low argued that the court should disavow the dicta contained in Clayborn, supra, and overturn the decision in Scamardo, supra. The supreme court agreed with Low’s argument. In its opinion, the supreme court gave a detailed history outlining the development of the law pertaining to the direct-action statute and the question of immunity and concluded that Claybom and Scamardo were out of step with its interpretation of the statute, which had developed for over forty years. The court overruled Scamardo and the Claybom dicta and held that a qualified charitable organization was immune from suit as well as tort liability and that the direct-action statute authorized an action to be filed against the charitable institution’s liability carrier.
On October 29, 2007, the trial court granted Dr. Hagaman’s motion for summary judgment. Appellant brought an appeal, but we dismissed for the lack of a final order because Kerr Medical Clinic remained as a defendant. Presley v. Baxter County Reg’l, Inc., CA08-90, 2008 WL 4062000 (Ark.App. Sept. 3, 2008) (unpublished). On March 24, 2009, the trial court entered an order dismissing the clinic with prejudice. This timely appeal followed.
Appellant’s first argument is that he correctly sued St. Paul in his original complaint and that the trial court erred in ruling that St. Paul was not a proper substitute defendant for the hospital. We review 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. Tate v. Lab. Corp. of Am. Holdings, 102 Ark. App. 354, 285 S.W.3d 261 (2008). In testing the |7sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and.all pleadings are to be liberally construed. Downing v. Lawrence Hall Nursing Ctr., 2010 Ark. 175, 369 S.W.3d 8. However, when a complaint is dismissed on a question of law, we conduct a de novo review. Dollarway Patrons for Better Schs. v. Morehead, 2010 Ark. 133, 361 S.W.3d 274.
Before Claybom, supra, the supreme court had held that charitable organizations were immune from execution on their property and were, therefore, immune from tort liability. See, e.g., Helton v. Sisters of Mercy of St. Joseph’s Hosp., 234 Ark. 76, 351 S.W.2d 129 (1961). The court had also held that, where a charitable organization was not liable in tort, its insurer was subject to a direct action pursuant to Arkansas Code Annotated section 23-79-210. With the dicta in Claybom, the supreme court broke with these precedents by distinguishing between a charitable organization’s immunity from suit and its immunity from liability and stating that the direct-action statute provided for suit to be brought against an insurer only in the event that the organization was immune from suit in tort. The supreme court reaffirmed this distinction in Sca-mardo, supra. However, in Low, supra, the court overruled the Scamardo decision and the dicta in Claybom and held that immunity from liability in tort constitutes immunity from suit under the direct-action statute and that the statute permits a law suit to be filed against the insurer of the charitable organization.
The state of the law has come full circle during the course of this case, and with the decision in Low, the law is once again the same as it was when appellant filed his original Rcomplaint against St. Paul. In Felton v. Rebsamen Med. Ctr., 373 Ark. 472, 284 S.W.3d 486 (2008), the supreme court stated that the decision in Low applied retroactively. Therefore, we hold that the trial court erred in dismissing the complaint against St. Paul by ruling that the direct-action statute did not apply.
Appellant next argues that the trial court erred in finding that he did not plead sufficient facts in his original complaint to establish the hospital’s immunity. In Claybom, the primary holding of the court was that the trial court properly dismissed the complaint against the insurer because an entity’s status as a nonprofit corporation does not ipso facto demonstrate that the corporation is immune from suit. Here, appellant not only alleged that the hospital was a nonprofit corporation, but he also asserted that the hospital was “not subject to suit in tort due to the fact that it ... has received 501(c)(3) designation from the Internal Revenue Service.” This subsection of the federal tax code confers tax-exempt status on corporations that are organized and operated exclusively for religious and charitable purposes, or the like. 26 U.S.C.A. § 501(c)(3) (West 2010). Treating the facts alleged in the complaint as true and viewing them in the light most favorable to appellant, we hold that this language sufficiently invoked the direct-action statute to survive a motion to dismiss.
Appellant’s remaining points are moot, as resolving them will have no practical legal effect on the outcome of the litigation. Rudder v. Hurst, 2009 Ark. App. 577, 337 S.W.3d 565. In light of our decision that appellant properly filed suit against St. Paul in the original complaint, it is irrelevant whether the amended complaint adding the hospital as a defendant 19related back to the filing of the original complaint. Also, even if we were to agree with appellant that the trial court should have allowed an appeal under Rule 54(b), that is an error that cannot be rectified at this juncture.
Reversed and remanded.
GLADWIN and BROWN, JJ., agree.
. This statute provides in part:
(a)(1) When liability insurance is carried by any cooperative nonprofit corporation, association, or organization, or by any municipality, agency, or subdivision of a municipality, or of the state, or by any improvement district or school district, or by any other organization or association of any kind or character and not subject to suit for tort, and if any person, firm, or corporation suffers injury or damage to person or property on account of the negligence or wrongful conduct of the organization, association, municipality, or subdivision, its servants, agents, or employees acting within the scope of their employment or agency, then the person, firm, or corporation so injured or damaged shall have a direct cause of action against the insurer with which the liability insurance is carried to the extent of the amounts provided for in the insurance policy as would ordinarily be paid under the terms of the policy.
(3) The insurer shall be directly liable to the injured person, firm, or corporation for damages to the extent of the coverage in the liability insurance policy, and the plaintiff may proceed directly against the insurer regardless of the fact that the actual tortfea-sor may not be sued under the laws of the state. | [
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ROBERT J. GLADWIN, Judge.
11Appellants Rocky and Debra Lawrence, husband and wife, contend that the Faulkner County Circuit Court erred in reforming the warranty deeds conveyed to them by appellees Patsy Crafton Barnes, Kimberly Zellner Ward, Trevor Ward, Steven Zellner, Misty Zellner, Virginia Craf-ton Lewis, James M. Lewis, Debi Zellner Tacker, and Tim Taeker (Craftons), finally reserving the mineral rights at issue in the Craftons. On cross-appeal, the Craftons claim that the trial court erred by refusing to award them attorney’s fees and costs. We affirm on direct appeal and reverse and remand on cross-appeal.
_|2Statement of Facts
Rocky Lawrence negotiated to buy the Crafton property, 110 acres of land in Faulkner County, Arkansas, through B.F. Glover, a real estate agent with Henry Hawk Real Estate. Lawrence claimed that he offered to buy the property, but was told that it was not known at the time whether the Craftons were going to sell the mineral rights on the property. Lawrence testified that when he made the offer to buy, Glover filled out the paperwork while in a truck with Lawrence out on the property and the contract that he signed did not reserve the mineral rights in the sellers. However, Glover testified that he did not fill out the paperwork in his truck, that he did so in his office, and that his broker went over the contract and filled in the reservation of mineral rights to the owner before anyone signed the contract. Patsy Crafton Barnes claimed that she never intended to sell the mineral rights to the property and was not authorized to do so by the powers of attorney she had for the members of her family when she signed the real-estate contract. Mark Lollar, a loan officer for First Security Bank, testified that he agreed to loan the money to Lawrence on the property, regardless of whether the minerals conveyed.
Lawrence testified that, as the buyer, he closed on the property at appellee Conway Title Services, Inc., before the sellers did. He claimed that he specifically asked about the mineral rights and was told that if the sellers closed with the paperwork as presented, the mineral rights would convey. He claimed that he left the real-estate closing believing that he had secured the mineral rights to the property.
| ^However, Ricky Stone, a real-estate agent who attended the Lawrences’ closing, testified that he told Lawrence prior to the closing that the mineral rights did not convey with this property. He said that the discussion regarding mineral rights occurred before Lawrence signed the real-estate contract. Stone further testified that Lawrence told him, when discussing a subsequent real-estate deal, that he knew he did not get the minerals on the 110 acres, but that he wanted to get them on the new deal.
Ms. Barnes and her sister Virginia Craf-ton Lewis testified that they both attended their closing as the sellers and did not intend to convey the mineral rights. Ms. Lewis stated that she told the closing agent at Conway Title several times during closing that the mineral rights would not convey. She said that she never got any indication that she was misunderstood. She admits to signing the warranty deed, which does not refer to a reservation of mineral rights.
Ms. Barnes testified that she did not authorize Conway Title to change any of the terms in the real-estate contract, which reserved the Craftons’ interest in the mineral rights. She claimed that she only realized there was a problem with the deeds when she went out to the property and discovered the construction of a gas well. At that point, she stated that Lawrence informed her that she did not own the mineral rights. She admits that she did not read the warranty deeds at closing, but instead relied on the title company, which prepared the deeds. She contends that she did not know if the reservation of mineral rights was ^contained in the real-estate contract at the time that Lawrence signed it, but that the reservation was there when she did.
Sarah Hooks prepared the warranty deeds at issue on behalf of Conway Title. She claimed that she understood that the sellers contracted to reserve the mineral interests in themselves and that she had conversations with the sellers respecting the issue of reserving mineral interests. She admitted that, at or before the sellers’ closing, they discussed the fact that the mineral rights did not convey with the property. She assured the sellers that everyone was aware that the mineral rights were being retained and that the title company would get it taken care of at closing. She said that they discussed the deeds and that there would be a notation on the deed that stated that the sellers were to retain the mineral rights. She testified that the reservation was not in the deeds because of human error and that it just “slipped through the cracks.” She testified that she did not remember a conversation with the Lawrences regarding mineral rights, but that if the original contract was to be changed, an addendum would have to be signed by all parties. No addendum was signed.
Ms. Barnes claimed that after she saw the platform on the property, she went to Conway Title. She testified that she was told by Conway Title that they would file a correction deed that would reserve the mineral rights, which would fix the problem. However, when Lawrence received a request to sign a correction deed, he refused, and this litigation ensued. Lawrence filed a complaint against the Craf-tons and Conway Title seeking to void the correction warranty deeds, quieting title in all the mineral interest in the property, | sand an award of attorney’s fees. The Craftons filed a counterclaim for reformation of the warranty deeds and a cross-complaint against Conway Title for money damages in the event that the Lawrences prevailed on their quiet-title claim. The trial court denied and dismissed the complaint to quiet title to the mineral estate of the property in the Lawrences, declared the correction deeds invalid, reformed the warranty deeds to state that the mineral rights are reserved to the Craftons, and dismissed the complaint of the Lawrences against Conway Title.
Following entry of the judgment, the Craftons filed a motion for attorney’s fees, claiming that, as the prevailing party to this contract action, they were entitled to attorney’s fees and costs pursuant to Arkansas Code Annotated section 16-22-308 (Repl.1999) and Arkansas Rule of Civil Procedure 54(d) (2009), in the amount of $30,060.56. The trial court denied the motion, stating that the statute does not authorize the award of attorney’s fees with regard to a reformation action, and declined to award the fees under its discretionary powers pursuant to the rule. The Lawrences filed a timely notice of appeal, and the Craftons filed a notice of cross-appeal. This appeal followed.
\ (¡Standard of Review
Reformation is an equitable remedy that is available when the parties have reached a complete agreement but, through mutual mistake, the terms of their agreement are not correctly reflected in the written instrument purporting to evidence the agreement. Lambert v. Quinn, 32 Ark. App. 184, 798 S.W.2d 448 (1990). A mutual mistake is one that is reciprocal and common to both parties, each alike laboring under the same misconception in respect to the terms of the written instrument. Yeargan v. Bank of Montgomery County, 268 Ark. 752, 595 S.W.2d 704 (Ark.App.1980). A mutual mistake must be shown by clear and decisive evidence that, at the time the agreement was reduced to writing, both parties intended their written agreement to say one thing and, by mistake, it expressed something different. See Lambert v. Quinn, supra. Whether a mutual mistake warranting reformation occurred is a question of fact. Id.
Even in reformation cases, where the burden of proof is by clear and convincing evidence, we defer to the superior position of the trial judge to evaluate the evidence, Akin v. First National Bank, 25 Ark. App. 341, 758 S.W.2d 14 (1988), and the proof need not be undisputed. Lambert v. Quinn, supra. Although we review traditional equity cases de novo, the test on review is not whether we are convinced that there is clear and convincing evidence to support the trial judge’s findings but whether we can say that the trial judge’s findings are clearly erroneous. Id.
The mistake of a draftsman, whether he is one of the parties or merely a scrivener, is an adequate ground for reformation if the writing fails to reflect the parties’ true understanding. See Jones v. Jones, 27 Ark. App. 297, 770 S.W.2d 174 (1989). A court may, through reformation, correct the description in a deed where the deed incorrectly reflects the property that the parties intended to be conveyed. See, e.g., Kohn v. Pearson, 282 Ark. 418, 670 S.W.2d 795 (1984); Galyen v. Gillenwater, 247 Ark. 701, 447 S.W.2d 137 (1969); Lambert v. Quinn, supra.
Statler v. Painter, 84 Ark. App. 114, 118-19, 133 S.W.3d 425, 428 (2003).
Discussion
The Lawrences argue that the trial court erred when it reformed the warranty deeds for two reasons. First, they contend that the Craftons failed to prove that the Lawrences did not intend to purchase the mineral rights to their farm. They claim that to have a mutual |7mistake, the Craftons had to prove that both parties made a mistake, and the proof must be clear, convincing, unequivocal, decisive, and leave no room for reasonable doubt. They contend that Glover’s testimony and the handwritten contract do not meet the extraordinary evidentiary burden necessary to reform a written instrument in Arkansas. Doniphan, K. & S. Rd. Co. v. M. & N. A. Rd. Co., 104 Ark. 475, 149 S.W. 60 (1912). The Lawrences argue that Do-niphan controls here, and that the court did not allow reformation where the evidence was not clear, convincing, and beyond reasonable controversy. Id. at 488-89, 149 S.W. at 66.
In Doniphan, the Arkansas Supreme Court overturned the trial court’s reformation of a contract based on the parties’ dispute as to the meaning of the word “any.” See id. The parties were railroad corporations who had entered into a contract for certain trackage rights to railroad lines. Id. A disagreement arose as to the kind of traffic that appellant was entitled to carry over appellee’s tracks. Id. Appel-lee contended that the trackage rights were limited and restricted to pine logs, but appellant claimed that the rights were not limited. Id. The trial court reformed the contract to authorize appellant to handle only pine logs over appellee’s line of railroad. Id. On appeal, the supreme court looked to the original contract to determine if it was written to restrict the traffic. Id. The court held that the parties contemplated no restrictions at the time the contract was written. Id.
The court stated, “In all such cases, the question is not what the parties would have intended but for a misapprehension, not what they would have intended had they known |sbetter, but rather, did the parties understandingly execute the instrument, and does it express their intention at the time, informed as they were?” Doniphan, 104 Ark. at 484, 149 S.W. at 64. The court held that there was a conflict as to whether or not the contract, as written and signed, expressed the intention and agreement of the parties at the time of its execution. Id. Ultimately, the court reversed the trial court’s reformation, holding:
While the findings of the chancellor as to questions of fact are persuasive, they are not conclusive, and where they are made upon testimony which is conflicting but which, under the law, must be clear, convincing, and beyond reasonable controversy, and the evidence is not of that probative force, it becomes our duty to set the findings aside. Mitchell [Mfg. Co.] v. [Ike] Kempner [& Bro.], 84 Ark. 349, 105 S.W. 880 [(1907)]. The language employed in this contract is not different from that appearing in any written instrument concerning the effect of which the contracting parties may differ. The parties may resort to the courts for its construction, but on that account it is not necessarily vague or ambiguous. When properly considered, the language employed in this contract is plain and unambiguous. With every means of information open to them, the parties signed and executed this written instrument, which then became a binding contract which cannot be altered, varied, or added to.
Id. at 488-89, 149 S.W. at 65-66.
The Lawrences argue that the evidence here also conflicts on the issue of intent. Rocky Lawrence testified that he intended to purchase the mineral rights. He also testified that when he made his offer, there was no language in the offer relating to the exclusion of mineral rights and he was told by Glover that he did not know whether the Craftons owned the mineral rights. Glover disputed this testimony. Glover and Stone testified that they told Lawrence that the mineral rights would not convey. Lawrence disputed their testimony. Therefore, the Law-rences argue that the Craftons’ evidence lacks the probative value ^necessary to rise to the level of being clear, convincing, and beyond reasonable controversy, and this court must reverse pursuant to Doni-phan.
Second, the Lawrences argue that the trial court erred in reforming the deeds because the Craftons accepted the benefit of their bargain and waited over a year to complain. The Lawrences claim that, according to both Ms. Barnes’s and Ms. Lewis’s testimony, they read the general warranty deeds prior to executing them, yet neither said anything to anyone about the mineral rights not being excluded. They both received the benefit of the purchase price of the property and utilized those proceeds. Therefore, the Lawrences contend that the trial court erred in not estopping the Craftons from claiming that the general warranty deeds did not convey title to the mineral rights.
The Craftons respond, first claiming that the trial court correctly found that Rocky Lawrence did not intend to purchase the mineral rights. We agree. Mutual mistake can be the parties’ mistaken belief that they were using language with the same intention when in fact they attached different meanings to the terms they employed, as in Doniphan, supra. Or, a mutual mistake consists of the failure of the written contract to state accurately the actual agreement of the parties. See Statler v. Painter, supra, (where this court held that a mistake of a draftsman, whether he is one of the parties or merely a scrivener, is an adequate ground for reformation of a deed if the writing fails to reflect the parties’ true understanding).
The evidence before the trial court was that the real-estate contract stated that mineral rights do not convey. No writings exist to change the terms of that contract. Further, Mark | inLollar testified that Lawrence intended to purchase the property with or without the minerals. The deeds are inconsistent with the real-estate contract. The commitment for title insurance given to the Lawrences excludes mineral interests from coverage. Moreover, the undisputed evidence is that Sarah Hooks, the preparer of the deeds, by mistake failed to reserve minerals to the Craftons. Therefore, the trial court’s decision to reform the deeds was not clearly erroneous.
Next, the Craftons contend that the circuit court did not err in refusing to estop the Craftons from reforming the general warranty deeds. We agree. Equitable estoppel is defined where, “if one man, knowingly, though he does it passively, by looking on, suffers another to purchase and expend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person.” Keylon v. Arnold, 213 Ark. 130, 135-36, 209 S.W.2d 459, 461 (1948) (citations omitted). The Lawrences did not erroneously expend money under an erroneous opinion of title. They contracted to purchase the property without minerals and paid nothing more for a conveyance of the minerals. Lawrence intended to buy the land with or without the minerals. Ms. Barnes confronted Lawrence while the pad was being constructed. That was the first time she learned that the Lawrences were claiming ownership of the mineral rights to the Crafton farm. Accordingly, we affirm, as the trial court’s decision was not clearly erroneous.
_|jj Finally, the Craftons contend on cross-appeal that the trial court erred by refusing to award them attorney’s fees and costs. The general rule in Arkansas is that attorney’s fees are not awarded unless expressly provided for by statute or rule. See Security Pac. Housing Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993). Arkansas Code Annotated section 16-22-308 gives the trial court discretion in awarding attorney’s fees in cases based upon contracts. A trial court’s decision as to whether to award attorney’s fees for breach of contract will not be set aside absent an abuse of discretion. Little Rock Wastewater Util. v. Larry Moyer Trucking, Inc., 321 Ark. 303, 902 S.W.2d 760 (1995).
The Craftons argue that a party who successfully defends against a suit that has been pled as a breach of contract is eligible for an award of a reasonable attorney’s fee under Arkansas Code Annotated section 16-22-308. See, e.g., Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001) (where the court found that a prevailing party existed and that the case sounded in contract based upon a lease agreement). The Craftons also cite Cumberland Financial Group, Ltd. v. Brown Chemical Co., 34 Ark. App. 269, 810 S.W.2d 49 (1991), where this court upheld an award of attorney’s fees to the party defending against a contract claim. The Craftons contend that allowing attorney’s fees to successful defenders in contract cases does not change because at issue is an alleged breach of an implied warranty to the contract. They cite Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003), where the home-builder successfully defended the suit against him for breach of contract based on a theory that the homebuilder had breached the warranty of habitability. Further, in Murchie v. Hinton, 41 Ark. App. 84, 848 S.W.2d 436 (1993), this court held that a warranty deed is a contract between a grantor and a grantee. There, this court held that Murchie was allowed to recover from Hinton the reasonable costs of defending her title against a third party and that Arkansas Code Annotated section 16-22-308 changed the old rule that a covenantee was not allowed to recover his attorney’s fees for breach of warranty from the covenantor. Id.
The Lawrences’ case was partially pled as a breach of contract. The complaint requests relief of “an award of attorneys fees regarding the breach of contract claims arising out of the breached original warranty deeds[.]” Because the Law-rences pled their action as a breach of contract, the Craftons claim that they are entitled to attorney’s fees as the prevailing party. See Cumberland Financial, supra. On the other hand, the Lawrences’ answer to the counterclaim stated that the Craf-tons “tortiously clouded title to the property in a brazen attempt to deprive them of any reasonable use of the property.” The Craftons argue that this language is a claim over an implied warranty for quiet enjoyment. Therefore, the Craftons claim that Curry and Murchie apply, making attorney’s fees allowable.
The Lawrences reply to the Craftons’ attorney’s-fee argument, claiming that even though the words “breach of contract” appear in the complaint, they prayed that the trial court void the correction deeds and quiet their title to 110 acres’ mineral rights. The Craftons counterclaimed, asking the trial court to either reform the warranty deeds or declare the correction deeds valid or quiet title to the mineral rights in them. The Lawrences contend that neither party sued on a contract or to enforce an implied covenant in a warranty deed. | ^Therefore, the Law-rences contend that the general rule applied in this case — each party should bear its own attorney’s fees and costs. The Lawrences further contend that, even if attorney’s fees were permitted in this case, the Craftons have failed to show that the trial court abused its discretion in disallowing the fees.
When a decision is within the discretion of the trial court, the trial court abuses that discretion by failing to exercise it. Gullahorn v. Gullahorn, 99 Ark. App. 397, 260 S.W.3d 744 (2007). The trial court here specifically stated in its order that the statute “does not authorize the award of attorney’s fees with regard to a reformation action.” However, the Law-rences attempted throughout to enforce the first set of deeds. Their complaint claimed that they were entitled to “an award of attorney’s fees regarding the breach of contract claims arising from the breached original Warranty Deeds[.]” Deeds are contracts in Arkansas. See Murchie, supra. Therefore, the Law-rences’ claims fall under Arkansas Code Annotated section 16-22-308. The trial court failed to use its discretion regarding awarding an attorney’s fee; thus, an abuse of discretion occurred. Because the trial court failed to exercise its discretion, the order denying attorney’s fees is reversed and the matter remanded for further proceedings consistent with this opinion.
Affirmed on direct appeal, and reversed and remanded on cross-appeal.
HART and BROWN, JJ., agree.
. The Craftons also filed a third-party complaint against First Security Bank to reform the mortgage from the Lawrences to the bank to exclude mineral rights. This reformation was granted by the trial court and included in the judgment filed on May 5, 2009.
. By order filed October 20, 2008, the Craf-tons’ cross-claim against Conway Title was severed. Therefore, the Craftons sought and received a Rule 54(b) Certificate in order that an appeal could be taken before a determination of the cross-claim. Ark. R. Civ. P. 54(b)(1) (2009). | [
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COURTNEY HUDSON GOODSON, Associate Justice.
| Appellants Maurice R. Lipsey, William Larry Cox, and Connie L. Cox, appeal the order entered by the Cleburne County Circuit Court dismissing their class-action complaint for injunctive and other relief filed against appellee Karen Giles, in her official capacity as Cleburne County Circuit Court Clerk. For reversal, appellants contend that the circuit court erred in dismissing their complaint, sua sponte, based on a lack of damages. Appellants also contend that the circuit court erred in dismissing the complaint because Arkansas law recognizes the ability of a court to enjoin the actions of a state agency or official if their actions are ultra vires. The order dismissing appellants’ complaint is a final judgment or decree pursuant to Arkansas Rule of Appellate Procedure— Civil 2(a)(1). This court’s jurisdiction is proper as this case involves an issue of substantial public interest relating to the recording of oil-and-gas leases in Cleburne County. Ark. Sup.Ct. R. 1 — 2(b)(4). Because we conclude that the circuit court improperly dismissed appellants’ complaint sua sponte, we preverse and remand.
Appellants filed a class-action complaint requesting an injunction and other relief on October 31, 2011. The complaint alleges that Giles, along with Cleburne County Circuit Court Deputy Clerks Heather Smith and Wanda Jensen, falsely and fraudulently notarized oil-and-gas leases outside the presence of the landowners. According to the complaint, landmen, who were procuring leases for oil-and-gas companies, would obtain the signatures of landowners on the leases and then deliver the leases en masse to the clerk’s office. There, the clerks would notarize the signatures and then record the leases, although the clerks had not witnessed the landowners’ signing the leases. The complaint requested that the court grant an injunction to require Giles to “inspect and verify each and every oil and gas lease received for recording and determine if the notarial acknowledgment is accurate, true, and correct.” Appellants further requested that the court enjoin Giles “to purge any and all oil and gas leases which contain a false notarial acknowledgment.” Finally, the complaint requested costs and attorney’s fees.
On November 30, 2011, Giles filed an answer to the complaint and a motion to dismiss. In her motion to dismiss, Giles asserted that the complaint failed to state facts upon which relief can be granted pursuant to Arkansas Rule of Civil Procedure 12(b)(6), failed to join necessary parties including the lessee oil companies, the operators of the drilling units, and the Arkansas Oil and Gas Commission, and that the complaint failed to meet the requirements |3for class-action certification. Finally, Giles asserted the defense of sovereign immunity.
Appellants filed an amended complaint on December 12, 2011, contending that they had been “damaged and harmed by the practice of falsifying notarial acknowledgments,” and that they “rely on the Cleburne County Circuit clerk to accept for filing only validly executed documents which are not falsified and fraudulent.” Appellants also filed a response to Giles’s motion to dismiss on that same date. Subsequently, on December 21, 2011, Giles filed an amended motion to dismiss. In her amended motion, Giles contended that appellants had no standing to bring the action because they have incurred no harm as a result of the allegations in the complaint. She further asserted that the complaint stated no facts upon which she could be found liable to appellants and again requested that the complaint be dismissed pursuant to Arkansas Rule of Civil Procedure 12(b)(6). Appellants filed an answer to the motion to dismiss on January 24, 2012. Giles then filed an answer to the amended complaint on May 4, 2012.
After discovery had begun, appellants filed a motion for an injunction on May 28, 2012. Giles filed an answer to the motion for an injunction two days later. After briefing from the parties regarding the circuit court’s authority to grant the relief requested, the court held a hearing on appellants’ motion for injunction on August 12, 2013. During the hearing, the circuit court questioned appellants concerning their damages in the following colloquy:
The Court: Then what damage [have] your clients suffered that would require anymore time of this Court in a case like this?
Plaintiffs’ Counsel: Well, the issue is this. My clients are residents of Cle-burne County. And they rely on these records just as everybody else does. And so does | ¿everyone else in Cleburne County. That’s why we filed this as a class action. And that is the damages. Ms. Giles has said herself, in her deposition, under oath, that her records are now unreliable. That nobody can rely on them because they don’t know which things were properly — you know, my clients did enter into leases. And they — there was no coercion. The Court is correct about that. Now, all the other ones, we don’t know whether the people were of firm mind. Whether they knew what they were doing. Whether somebody just put their name on the thing and went down there and had it notarized. That’s why we brought this as a class. But the damage is, is the disarray that the county’s records are in, Your Honor. And as residents they’re entitled to be able to rely on them.
After that, the circuit court announced that “with the admission that none of the plaintiffs have been damaged ... I’m going to, on my own motion, I’m dismissing this case.” On September 18, 2018, the circuit court filed a written order. In its written order, the circuit court made the following findings: “(1) The Court finds that the Plaintiffs have suffered no damages; and (2) The Court, sua sponte, dismissed the Plaintiffs’ Complaint.” The court also incorporated its oral ruling by attaching a transcript of the hearing to its written order. On appeal, appellants con tend that the circuit court erred in dismissing their complaint, Sua sponte, for lack of damages. They further contend that the court has the authority to enjoin ultra vires acts by a state agency or official.
We begin our analysis by determining the appropriate standard of review. Appellants contend that the circuit court dismissed their complaint after considering matters outside the pleadings. They assert, therefore, that this court should treat the court’s order as a grahted motion for summary judgment. Giles, however, contends that the circuit court distnissed the complaint pursuant to Rule 12(b)(6), which she cited in her motion to dismiss, piles contends that this court should apply the abuse-of-discretion standard on review.
|)jlt is well settled that a motion to dismiss is converted to a motion for summary judgment when (natters outside the pleadings are presented to and not excluded by the court. Koch v. Adams, 2010 Ark. 131, 361 S.W.3d 817. Here, the court explicitly stated that it dismissed the appellants’ complaint after a healing on the motion for injunction. Attached to that motion for an injunction were transcripts from Giles’s, Smith's, and Jensen’s depositions. In addition, the court incorporated the transcript from the hearing in which it relied on statements from counsel that appellants’ leases were not fraudulent. Moreover, both parties relied on the depositions attached to appellants’ motion for injunction during the hearing. Because it is clear to this court that the circuit court considered matters outside the pleadings in making its ruling, we treat the court’s dismissal as a granted motion for sumrhary judgment.
Summary judgment is appropriate when there are no genhine issues of material fact, and the moving party is entitled to judgment as a matter of law. Koch, swpra. On appeal, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Gentry v. Robinson, 2009 Ark. 634, 361 S.W.3d 788. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Kyzar v. City of W. Memphis, 360 Ark. 454, 201 S.W.3d 923 (2005). Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Neal v. Sparks Reg’l Med. Ctr., 2012 Ark. 328, 422 S.W.3d 116. While we have recognized that summary judgment is simply one of the | fitools in a trial court’s efficiency arsenal; we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law. Flentje v. First Nat. Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). Moreover, we have held that, even when there is no material dispute as to the facts, the court will determine whether “reasonable minds” could draw “reasonable” inconsistent hypotheses to render summary judgment inappropriate. In other words, when the facts are not at issue but possible inferences therefrom are, the court will consider whether those inferences can be reasonably drawn from the undisputed facts and whether reasonable minds might differ on those hypotheses. Id. If so, summary judgment is not appropriate.
For their first point on appeal, appellants contend that the circuit court erred in dismissing their complaint sua sponte. We have recognized that it is error for a court to dismiss a complaint without a motion, hearing, or other evidence in support of the dismissal. Matsukis v. Joy, 2010 Ark. 403, 377 S.W.3d 245 (holding that the circuit court lacked authority to enter a sua sponte order of dismissal pursuant to Ark. R. Civ. P. 12(b)(6) where appellees never filed a motion seeking such a dismissal); Country Pride Foods Ltd. v. Medina & Medina, 279 Ark. 75, 77, 648 S.W.2d 485, 486 (1983) (holding it was error for the circuit court to dismiss the complaint sua sponte based on inconvenient forum, without hearing evidence, when there had been no motion to dismiss filed by either party).
In Rogers v. Lamb, 347 Ark. 102, 60 S.W.3d 456 (2001), this court held that the circuit |7court erred in settling a case in favor of the plaintiff in the absence of any party’s filing of a motion to dismiss or a motion for summary judgment. In that case, the plaintiff, Lamb, filed a petition for ejectment against the defendant, Rogers, who filed an answer and a counterclaim against Lamb. The circuit court held a preliminary hearing and received briefs from the parties, and it then, sua sponte, entered an order resolving the merits of the case in Lamb’s favor. On appeal, Rogers made several arguments, including that the court erred in rendering its decision in the absence of an appropriate motion filed by either party. Rogers, 347 Ark. at 103, 60 S.W.3d at 457. This court agreed, noting that the trial court’s sua sponte ruling deprived the parties of any opportunity to present evidence or witness testimony in support of their positions.
More recently, we concluded that the circuit court erred in dismissing a case pursuant to Rule 12(b)(6) because it converted the matter to a summary-judgment proceeding without putting the party whose complaint was dismissed on notice that they would need to meet the opposing party’s proof with their own. Matsukis, supra. We stated that, “[gjiven notice of the court’s intentions and an opportunity to rebut Appellees’ proof with evidence of their own, Appellants might have been able to submit additional evidence that indicated that there remained a genuine issue of material fact.” Matsukis, 2010 Ark. 403, at 11-12, 377 S.W.3d at 251. Because the circuit court’s actions foreclosed that possibility, we held that the sua sponte dismissal of the complaint on summary judgment constituted reversible error.
In the present case, Giles filed motions to dismiss appellants’ complaint and amended complaint pursuant to Rule 12(b)(6). Giles specifically alleged that the amended complaint |sdid not state any facts to show that appellants “have standing to bring this action, as they have incurred no harm as a result of the allegations in the Complaint.” While appellants contend that Giles’s motion to dismiss was “denied in its entirety,” the record does not reflect any such ruling. Giles’s motion to dismiss was filed approximately nineteen months prior to the hearing. Approximately seven months before the hearing, the parties filed briefs on the issue of the circuit court’s authority to grant the injunction. These briefs did not discuss the prior motion to dismiss or discuss the issue of damages. Furthermore, the preliminary hearing was set after appellants filed a motion for an injunction. Thus, appellants had no notice that the circuit court was considering dismissing their complaint. During the hearing Giles did not mention or renew her motion to dismiss. Moreover, the circuit court’s order dismissing the complaint clearly states that the dismissal is sua sponte and makes no reference to any other pending motions. The circuit court’s sua sponte dismissal of appellants’ complaint deprived them of their day in court, despite the fact that appellants maintained that there were disputed issues of fact outstanding, i.e., that they had suffered damages. Therefore, because appellants were not given notice of the court’s intentions and had no opportunity to meet proof with | nproof and show that a material issue of fact existed, we hold that the circuit court erred in dismissing their complaint sua sponte.
Because we reverse and remand on this point, we do not reach the remaining point on appeal. See, e.g., Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364.
Reversed and remanded.
. Although appellants contend that the leases were fraudulently notarized, there is no allegation that appellants' leases were procured fraudulently or illegally.
. The record reflects that the circuit court set a hearing date of February 27, 2012, on Giles's motion to dismiss. However, the record contains no transcript of a hearing held on that date nor does it contain any written order on Giles’s motion to dismiss. A motion to dismiss is not subject to the "deemed denied” provisions of Arkansas Rule of Civil Procedure 59(b), which provides that a motion for new trial is deemed denied "if the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed.... ”
. In her motion for a continuance, Giles indicated that the hearing concerned "the Motion for Injunction and Motions to Reopen/Reconvene Depositions.” There is no mention of her motion to dismiss. | [
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PER CURIAM.
hOn June 19, 2013, judgment was entered reflecting that petitioner Ronnie Lee Canada had entered a plea of guilty to battery in the first degree and endangering the welfare of a minor. An aggregate sentence of 480 months’ imprisonment was imposed.
On June 20, 2014, petitioner filed the motion that is now before us, requesting leave to proceed with a belated appeal of the judgment of conviction. Arkansas Rule of Appellate Procedure-Criminal 1(a) (2013) provides that there is no direct appeal from a plea of guilty. An exception is created when a conditional plea of guilty is premised on an appeal of the denial of a suppression motion pursuant to Arkansas Rule of Criminal Procedure 24.3 (2013). See Seibs v. State, 357 Ark. 331, 166 S.W.3d 16 (2004). Two additional exceptions to the general rule, as set out in Seibs and Grissom v. State, 2009 Ark. 328, 2009 WL 1497508 (per curiam), are (1) when there is a challenge to testimony or evidence presented before a jury in a sentencing hearing separate from the plea itself and (2) when the appeal is from a posttrial motion challenging the validity and legality of the sentence itself. See Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003). Absent one of the 12exceptions, a defendant waives his right to appeal when he pleads guilty. Nelson v. State, 2012 Ark. 217, 2012 WL 1739112 (per cu-riam); Smith v. State, 2011 Ark. 54, 2011 WL 539128 (per curiam); Grissom, 2009 Ark. 328, 2009 WL 1497508; see also Berry v. City of Fayetteville, 354 Ark. 470,125 S.W.3d 171 (2003); Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999). We have held, however, that an appeal may be taken after a guilty plea when the petitioner alleges evidentiary errors which arose after the plea and during the sentencing phase, regardless of whether a jury was impaneled for that phase of trial. See Tubbs v. State, 2011 Ark. 166, 2011 WL 1424572 (per curiam); see also Johnson v. State, 2010 Ark. 63, 2010 WL 1006439.
Petitioner here does not contend that his plea was conditional or that it otherwise met any of the exceptions that would allow for an appeal from the judgment. For that reason, he has not met his burden of establishing that he is entitled to proceed with a belated appeal. See Nelson, 2012 Ark. 217, 2012 WL 1739112; see also Smith, 2011 Ark. 54, 2011 WL 539128.
Motion denied. | [
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PER CURIAJM.
| T Petitioner Anarian Chad Jackson has filed a fifth petition requesting this court to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in which he makes an additional request to recall the mandate. He has also filed a motion to expand the page limitations under Arkansas Supreme Court Rule 2 — 1(h) (2013). Petitioner’s motion to exceed the page limit is moot because his petition was filed by the clerk with the pages that petitioner would add. His petition to reinvest jurisdiction and recall the mandate is denied.
A prisoner who appealed his judgment and who wishes to attack his conviction by means of a petition for writ of error coram nobis must first request that this court reinvest jurisdiction |2in the trial court. Martin v. State, 2012 Ark. 44, 2012 WL 310981 (per curiam) (citing Kelly v. State, 2010 Ark. 180, 2010 WL 1507210 (per curiam)). A petition in this court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after this court grants permission. Cox v. State, 2011 Ark. 96, 2011 WL 737307 (per curiam). This court will grant permission to proceed with a petition for the writ only when it appears that the proposed attack on the judgment is meritorious. Whitham v. State, 2011 Ark. 28, 2011 WTj 291873 (per curiam). Where a petitioner seeks the writ on the same grounds as a previous petition, this court has discretion to determine whether a petitioner’s application for the writ will be permitted, provided that the petitioner has alleged additional facts in support of the grounds. See Rodgers v. State, 2013 Ark. 294, 2013 WL 3322344 (per curiam).
Petitioner was convicted of first-degree murder for killing Charles Raynor, ahd the jury imposed a life sentence. This coúrt affirmed the judgment. Jackson v. State, 359 Ark. 297, 197 S.W.3d 468 (2004). íhe evidence at trial established that appellant and another member of petitioner’s gang shot Raynor, who was a member of a rival gang. See id.
Takesha Griffin testified at the trial. She was called by the prosecution and treated as a hostile witness. During her trial testimony, she testified that she did not give a statement to police about petitioner’s involvement in Raynor’s death, that she was high on crack at the time of her statement that the prosecution later introduced, and that she had beeh kept at the Little Rock Police Department for five or six days and was willirig to say or do anything to leave. Id. Griffin’s testimony about the circumstances concerning her statement implicating Jacksort was not consistent with a recording of her testimony before a federal grand jury, which was | .^introduced into evidence, or with later testimony by the detectives who had taken her statement. The audio tape of Griffin’s statement reflected that she had testified under oath that petitioner admitted killing Raynor because Raynor had tried to kill petitioner at least four times, that she had heard on the street that petitioner and Raynor wanted the same girl, and that petitioner had told her the type of guns that he and the other shooter had used to kill Raynor. Id.
Petitioner’s motion concerns Griffin’s recanted statement. Petitioner has twice previously asserted prosecutorial misconduct involving the alleged suppression of information about Griffin’s time spent with the police. See Jackson v. State, CR-03-800, 2009 WL 888649 (Ark. Apr. 2, 2009) (unpublished per curiam); Jackson v. State, 2010 Ark. 81, 2010 WL 1006491 (per curiam). The State argues that petitioner’s claims are abuse of the writ under O’Neal v. State, 2010 Ark. 425, 2010 WL 4366898 (per curiam). Petitioner asserts that he has made new arguments concerning prosecutorial misconduct in administering an oath to Griffin and that there are new issues in the petition concerning suppressed statements by Griffin that petitioner was in Texas at the time of the murder.
It is a petitioner’s burden to show that the writ is warranted. Smith v. State, 2012 Ark. 403, 2012 WL 5304089 (per curiam). This burden is a heavy one, for a writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Anderson v. State, 2012 Ark. 270, 423 S.W.3d 20 (per curiam). The remedy in a proceeding for a writ of error coram nobis is exceedingly narrow and appropriate only when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown and would have prevented the rendition of the judgment had it been known to the trial court. Burks v. State, 2011 Ark. 173, 2011 WL 1522524 (per curiam). To warrant a writ of error coram nobis, a petitioner must bring forth some fact, Lextrinsic to the record, that was not known at the time of trial. Binder v. State, 2011 Ark. 401, 2011 WL 4492362 (per curiam).
Petitioner’s allegations that the prosecutor exceeded his statutory authority by administering the oath to Griffin do not provide new grounds for the writ. That claim arises from facts that were not extrinsic to the record and were known at trial. As a consequence, the claim is not one cognizable in an error-coram-nobis proceeding, will not support issuance of the writ, and provides no basis to reinvest jurisdiction in the trial court to pursue the writ. See Hoover v. State, 2012 Ark. 136, 2012 WL 1036114 (per curiam); see also Hall v. State, 2013 Ark. 404, 2013 WL 5596282 (per curiam) (holding that claims that could have been raised at trial are not grounds for the writ).
Petitioner also alleges that Griffin, during her time at the police station, made statements prior to the one played for the jury at trial, and petitioner appears to contend that these prior statements would have exonerated him by providing an alibi and serving to impeach Griffin’s later statement implicating him in the murder. Petitioner attached to the petition an affidavit from Griffin in which she states that she made statements, one that was recorded and one that she wrote, that petitioner was in Texas at about the time of the murder. To the extent that petitioner intended these additional facts to provide support for his previous claims that the prosecution suppressed evidence about Griffin’s time at the police station, the additional facts are not sufficient to support permitting an application for the writ to go forward.
Where a petitioner seeks the writ on the basis of a violation of the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), he must establish that evidence was suppressed by the State, either willfully or inadvertently. Burgie v. State, 2013 Ark. 356, 2013 WL 5434695 (per curiam). Where a petitioner | ¡¡offers nothing to show that information was concealed from the defense, and the issue could have been determined with certainty at the time of trial, the petitioner has not demonstrated a Brady violation that warrants issuance of the writ. Id. Petitioner has offered nothing to show that the statements were concealed from the defense. In fact, the defense appeared to be aware of the information.
The testimony at trial was that Raynor was murdered on January 5, 2001. Petitioner’s sister testified that petitioner had talked to her by phone during a call from petitioner’s brother on January 2, 2001. The implication was that petitioner had been at his brother’s house in Dallas when the call was placed. So, the defense was aware of the alibi defense. There were also statements made on the record at trial indicating that the defense knew Griffin had made multiple statements to the police and that a defense investigator had interviewed Griffin prior to trial. The facts alleged in the petition do not establish that the defense was unaware of the content of the statements.
Moreover, because the jury found that Griffin’s testimony recanting the statement that implicated petitioner was not credible, the evidence that petitioner contends was withheld was not sufficient to have prevented the rendition of the judgment if it had it been known at the time of trial. See Hill v. State, 2013 Ark. 383, at 2, 2013 WL 5519952 (per curiam) (“[I]n order to justify issuance of the writ, the withheld evidence must also be such to have prevented rendition of the judgment had it been known at the time of trial.”) (citing Camp v. State, 2012 Ark. 226, 2012 WL 1877371 (per cu-riam)). The jury obviously concluded from the evidence presented, as it did with a number of other witnesses, that Griffin felt pressured by petitioner and his gang rather than by the police. There is a | (¡distinction between fundamental error that requires issuance of the writ and newly discovered information that might have created an issue to be raised at trial had it been known. Jackson, 2010 Ark. 81; see also Thompson v. State, 2012 Ark. 339, 2012 WL 4162831 (per curiam). The error that petitioner asserts was of the latter sort.
This court is not required to accept the allegations in a petition for writ of error eoram nobis at face value. Burks v. State, 2013 Ark. 188, 2013 WL 1858857 (per curiam). It is the petitioner’s burden to show that the writ is warranted, and this court will grant permission for a petitioner to proceed with a petition for writ of error coram nobis only when it appears that the proposed attack on the judgment is meritorious. Id. Here, petitioner has not demonstrated that, if allowed to proceed, he could demonstrate that the statements were suppressed or that the statements would have prevented rendition of the judgement. Thus, to the extent that he has alleged any new facts in the petition, he has failed to demonstrate a meritorious claim to present in the proposed petition for writ of error coram nobis.
Petitioner also requests that this court recall the mandate in the ease, pointing to ineffective assistance of counsel and asserting that this court overlooked error in reviewing the case on direct appeal. This court has consistently held that it will only consider a petition to recall the mandate in those cases where the death penalty has been imposed. Nooner v. State, 2014 Ark. 296, 438 S.W.3d 233; see also Maxwell v. State, 2012 Ark. 251, 2012 WL 1950253 (per curiam). Petitioner also does not allege that he has otherwise established extraordinary circumstances to satisfy the requirements to recall the mandate as outlined by this court in Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003). Because petitioner has not established a basis for this court to recall the |7mandate, we decline to do so.
Motion to expand page limit moot; motion to reinvest jurisdiction and to recall mandate denied.
. For clerical purposes, the motion was assigned the same docket number as the direct appeal. | [
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DAVID M. GLOVER, Judge.
IjThe issue in this case is who owns a 3/8 interest in all oil, gas, and mineral rights in property in Conway County. On December 28, 1983, David L. Baker and Carolyn M. Baker executed a warranty deed to William P. Batson and Garna Sue Bat-son. This deed, filed of record the following day, conveyed real property, subject to a reservation by the Bakers, which provided:
GRANTORS HEREIN RESERVE AN UNDIVIDED 3/8 INTEREST IN AND TO ALL OIL, GAS AND MINERALS LYING IN, ON AND UNDER THE HEREIN ABOVE DESCRIBED LANDS, WITH THE RIGHT TO ENTER AND MINE SAID OIL, GAS AND MINERALS FOR A PERIOD OF 20 YEARS FROM THE DATE HEREOF, AT WHICH TIME THE UNDIVIDED 8/8 INTEREST RESERVED HEREIN SHALL REVERT TO GRANTEES HEREIN.
On April 2, 1984, the Batsons executed a warranty deed to appellant, Deltic Farm and Timber Co., Inc., conveying the same property to Deltic and “[e]xcepting all pri- or, valid 12reservations and/or conveyances of record of oil, gas, and other minerals in and under the subject land.”
On October. 30, 1984, the Batsons executed a mineral deed to their three daughters, Kathy Sue Newland, Karen Ann Newland, and Lisa Kay Dillard, appellees herein. This deed was filed of record on November 5, 1984. In this deed, the Bat-sons conveyed to each of the appellees “an undivided one-third interest, as tenants in common, and unto their heirs and assigns forever, our interest and all of our undivided 3/8 interest which shall revert to us in the year 2003, in and to all oil, gas and other minerals lying in, on or under the [land in question].”
In August 2008, appellees commenced an action seeking a declaratory judgment that they owned the 3/8 mineral interest. Both parties filed motions for summary judgment, and the trial court granted ap-pellees’ motion for summary judgment. Deltic appealed to our court. We found that the deed from Batson to Deltic was ambiguous and reversed and remanded to the trial court. In arriving at this decision, our court held:
When interpreting a deed, the court gives primary consideration to the intent of the grantor. Bishop v. City of Fayetteville, 81 Ark.App. 1, 97 S.W.3d 913 (2003). When the court is called upon to construe a deed, it will examine the deed from its four corners for the purpose of ascertaining that intent from the language employed. Id. The court will not resort to rules of construction when a deed - is clear and contains no ambiguities, but only when the language of the deed is ambiguous, uncertain, or doubtful. Id When a deed is ambiguous, the court must put itself as nearly as possible in the position of the parties to the deed, particularly the grantor, and interpret the language in the light of attendant circumstances. Id.
The initial determination of the existence of an ambiguity rests with the court, and if ambiguity exists, then parol evidence is admissible and the meaning of the term becomes a question for the fact-finder. C. & A. Constr. Co., Inc. v. Benning Constr. Co., 256 Ark. 621, 622, 509 S.W.2d 302, 303 (1974). Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Magic Touch Corp. v. Hicks, 99 Ark.App. 334, 260 S.W.3d 322 (2007). We hold that the Batson-Deltic deed is ambiguous. The Batsons clearly intended to retain some interest, as there is no other reason to include an “excepting” clause, but what they wanted to retain is unclear from the face of the deed. If one follows the “excepting” clause to its ultimate conclusion, the deed excepted the five-eighths mineral interest, the three-eighths mineral interest, and even the surface because all were “prior, valid conveyances.” By not distinguishing between the five-eighths mineral interest and the three-eighths mineral interest, the deed leaves us with serious doubt about what exception is created. Once again the use of “and/or” serves to confuse, not clarify the task of construing the document at hand. See Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 581 S.W.2d 953 (1976) (“The phrase ‘and/or’ has brought more confusion than clarity to the task of construction of statutes, contracts and pleadings.”); Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984) (calling “and/or” an imprecise term and noting that it had previously been labeled “a linguistic abomination”). We disagree with appellant’s contention that the deed clearly excepts only the twenty-year reservation held by the Bakers; we also disagree with appellees’ contention that “[i]f the exception in the Batson-Deltic deed was sufficiently clear to include the 20 year term interest, it must also include the reversionary interest springing from the same reservation.” We acknowledge appellant’s argument that the clause at issue in the Batson-Deltic deed fails for lack of certainty. We fundamentally disagree with appellant, however, that the “excepting” clause should simply fail based on its ambiguity. [fn3] Nor do we agree with appellees that the general exception language in the deed is sufficiently clear to include the remainder interest created by the Baker-Batson deed.
Summary judgment was premature in this case because there is clearly a factual dispute as to the intention of the parties. Because we find that the “excepting” clause in the Batson-Deltic deed is ambiguous, the fact-finder can consider extrinsic proof of intent in construing the deed and the court may rely on the rules of construction previously set forth by our supreme court. The determination of the intent of a grantor is largely a factual one, Winningham v. Harris, 64 Ark.App. 239, 243, 981 ' S.W.2d 540, 542 (1998). When issuing its order, the trial court had before it the warranty mineral deed from the Batsons granting their three children “our interest and all our undivided 3/8 interest which shall revert to us in the year 2003, in and to all oil, gas and other .minerals lying in, on or under the following lands in Conway County, Arkansas.” This presented some evidence, several months after the Batson-Deltic deed was executed, that the Batsons believed they owned the three-eighths mineral interest that appellant now claims.
|4We note that, in arriving at the intention of the parties, the courts may consider and accord considerable weight to the construction of an ambiguous contract or deed by the parties themselves, evidenced by subsequent statements, acts,' and conduct. Wynn v. Sklar & Phillips Oil Co., 254 Ark. 332, 341, 493 S.W.2d 439, 445 (1973). Courts may also acquaint themselves with and consider circumstances existing at the time of the execution of a contract and the situation of the parties who made it. Id. These are precisely the' kinds of facts that need further development upon remand because the intention of the parties is not apparent without the introduction of extrinsic evidence. Further, as a rule of last resort, an ambiguous deed is construed most strongly against the party who prepared it, see Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974), or against the grantor. Goodwin v. Lofton, 10 Ark.App. 205, 662 S.W.2d 215 (1984). The circuit court had no evidence before it to determine whether the grantors or the grantee prepared the deed in question, but the identity of the grantors is evident. Whether the circuit court should get to this rule of construction will be dependent on the parol or extrinsic evidence introduced by the parties in an effort to determine the intention of the grantors and grantee.
Deltic Timber Corp. v. Newland, 2010 Ark. App. 276, at 7-11, 374 S.W.3d 261, 266-68 (emphasis added) (Deltic I).
Upon remand, the trial court took testimony and made a determination that Del-tic was aware that only 5/8 of the minerals were to be conveyed, as evidenced by its own February 13, 1984 Land Acquisition Report; that although Deltic presented testimony that its policy in 1984 was to acquire all of the minerals with any tract of land purchased, there was no evidence that it would not purchase a tract of land unless all of the mineral rights conveyed; that an internal Deltic memo indicated that the Batsons were “to convey an undivided 5/8 interest in all oil, gas, and other minerals”; that Mr. Batson’s testimony that he intended to reserve a 3/8 mineral interest when he sold the property to Del-tic was credible; and that the conveyance to appellees six months after the sale to Deltic, at a time when there was no dispute over the mineral rights involved in the litigation, was further evidence of the Batsons’ Rintent to reserve a 3/8 mineral interest at the time of the execution of the deed to Deltic. The trial court found that it was not necessary to resort to the rules of construction, as it made a finding as to the intent of the parties to the Batson-Deltic deed at the time of its execution as directed by this court, but even if it had to resort to the rules of construction, it would have to resolve any ambiguity against Del-tic as the party that drafted the deed. The trial court found that, based upon its findings, the October 30, 1984 deed from William Batson and Garna Sue Batson to appellees vested in appellees an undivided 3/8 mineral interest in the property.
Deltic again appeals to our court, arguing (1) that our court’s prior determination that the deed’s exception language is ambiguous is erroneous and is inconsistent with a later holding of our court; (2) that the trial court erroneously excluded significant portions of a witness’s testimony; and (3) that the circuit court erroneously determined that the testimony and exhibits introduced at trial were sufficient to establish the parties’ mutual intent for appel-lees’ parents to retain the remainder interest in 3/8 of the minerals. We affirm the trial court in all respects.
Prior Determination of Ambiguity Erroneous and Inconsistent
Deltic’s first argument on appeal is that our court’s prior determination that the deed’s exception language was ambiguous is erroneous and inconsistent with the holding in Burgess v. Lewis, 2011 Ark. App. 362, 2011 WL 1795523. In that case, our court found that the language in the deed, as it appeared from the four corners of the instrument, was not ambiguous. We need not determine if our holding in Deltic I was incorrect because it is now law of the case and cannot | fibe revisited on this appeal. In Green v. George’s Farms, Inc., 2011 Ark. 70, at 7-8, 378 S.W.3d 715, 720-21,.our supreme court held:
The doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002). The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 47 S.W.3d 227 (2001). The law-of-the-case- doctrine also prevents consideration of an argument that could have been raised at the first appeal and is not made until a subsequent appeal. First Commercial Bank v. Walker, 333 Ark. 100, 969 S.W.2d 146 (1998). The doctrine serves to effectuate efficiency and finality in the judicial process, and its purpose is to maintain consistency and avoid reconsideration of matters once decided during the course of a single, continuing lawsuit. Jones v. Double “D” Props., Inc., 357 Ark. 148, 161 S.W.3d 839 (2004).
Deltic argues that when our court reversed and remanded the trial court’s grant of summary judgment to appellees in Deltic I, all issues were “opened anew.” We disagree. Our holding in Deltic I was that the deed was .ambiguous. We reversed and remanded the case to the trial court to resolve the ambiguity, which it has now done. We cannot now go behind our holding in Deltic I and say that the deed was not ambiguous, as the law-of-the-case doctrine prevents us from revisiting our decision in Deltic I in this subsequent appeal. Our court is bound by our decision in Deltic I that the language in the Batson-Deltic deed was ambiguous.
Exclusion of Witness Testimony
Evidentiary rulings are reviewed for an abuse of discretion. Green v. Alpharma, Inc., 373 Ark. 378, 284 S.W.3d 29 (2008). A trial court abuses its discretion when it |7improvidently exercises its discretion thoughtlessly and without due consideration. Poff v. Brown, 374 Ark. 453, 288 S.W.3d 620 (2008).
On remand to determine the intent of the parties, Deltic called Larry Graddy, an attorney in Conway, Arkansas, who also owns a land-title company. Graddy was not involved in the preparation of the Bat-son-Deltic deed but did prepare the deed from the Batsons to their daughters conveying the 3/8 mineral interest in October 1984. Graddy testified that based upon his experience as a title examiner, it was his opinion that the exception language should appear in every warranty deed. Deltic’s attorney then asked Graddy what the standard real-estate practice with reference to the use of such an exception clause was concerning a prior mineral reservation; appellees’ attorney objected on the basis that it would be a legal opinion because Graddy would have to interpret the instrument. The trial court sustained the objection on the basis that, because the instrument had to be interpreted, that called for a legal conclusion. Deltic then offered Graddy’s proffered testimony that the use of the exception clause is an appropriate real-estate practice; that it is important for the purpose of limiting the warranty; .that it is standard real-estate practice to include that type of excepting clause in order to deal with the warranty; that the excepting clause itself does not constitute a reservation of any new interest not previously expressed and recorded; and that the excepting clause contained in the Batson-Deltic deed was essentially the same excepting clause that he used in his real-estate practice. Deltic’s attorney then asked Graddy if his use of the excepting clause was for the purpose of protecting the grantor’s 1 ¿warranty from breach; appellees’ attorney again objected on the basis that called for a legal conclusion. The trial court sustained the objection but allowed Deltic to proffer Graddy’s affirmative answer.
Deltic argues that Graddy’s excluded testimony is exactly what is missing from this court’s erroneous conclusion in Deltic I that “there is no other reason to include an exception clause.” 2010 Ark. App. 276, at 8, 374 S.W.3d at 266-67. Our supreme court has taken a dim view of attorneys offering legal opinions regarding the ultimate legal issues of a case. See Williams v. First Unum Life Ins. Co., 358 Ark. 224, 188 S.W.3d 908 (2004); Byrd v. Dark, 322 Ark. 640, 911 S.W.2d 572 (1995). Deltic acknowledges in its brief that an attorney is not ordinarily permitted to testify as to the issues of'-law in a case, but it argues that Graddy’s testimony was not what the exception language meant, but rather that such language was commonly used, was “virtually mandatory,” and the reason why it was common and mandatory. Deltic argues that in Burgess, supra, our court accepted and affirmed a trial court’s ruling, which relied upon very similar testimony in an affidavit filed in support of the appellees’ motion for summary judgment, that reached the “identical conclusion” proffered by Graddy. However, in Burgess, it does not appear that the affidavit drew an objection from the appellants as Graddy’s testimony did in the present case.
Furthermore, the testimony from Grad-dy, which Deltic now claims is crucial, appears to have been admitted in James Baine’s testimony, see infra the discussion of sufficiency of the [ ^evidence. We cannot say that the trial court abused its discretion in refusing to allow the portions of Graddy’s testimony challenged by appel-lees.
Sufficiency of Evidence to Support Decision of Trial Court
In a bench trial of a civil action, the standard of review is not whether there is substantial evidence to support the finding of the circuit court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Seidenstricker Farms v. Doss, 372 Ark. 72, 270 S.W.3d 842 (2008). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed. Id. Facts in dispute and determinations of credibility are within the province of the finder of fact. Id.
Deltic argues that the testimony and exhibits introduced at trial were insufficient. to establish the parties’ mutual intent for the Batsons to retain the 3/8 remainder interest in the minerals. Deltic again argues that our court erred in remanding this matter for trial to determine the subjective intent of the parties when the Bat-son-Deltic deed was executed; however, for the reasons discussed above, that issue will not be revisited.
We agree with Deltic that attempting to discern intent twenty-seven years after the execution of the deed is somewhat difficult. Deltic’s land manager at the time of the execution of the deed is deceased, and the real-estate agent who represented the Bat-sons in the transaction was not located.
| ipHowever, there was testimony given about the events surrounding the execution of the Batson-Deltic deed. Mr. Bat-son testified at the hearing that he had a deed prepared for the transaction and submitted to his real-estate agent that stated, “Grantor herein conveys 5/8 interest in to all minerals, with the right of ingress and egress.” However, this deed was not used in the transaction; another deed, prepared by Murphy Oil (of which Deltic was a wholly owned subsidiary at the time of the transaction), was used. Batson testified that, at the time the transaction was closed, it was- his intention for his daughters to have the 3/8 mineral rights and for Deltic to have 5/8 of the minerals. Batson stated that he was unable to recall the “fine details” of the transaction, and he had no recollection of any conversation with any attorney, real-estate agent, or Deltic representative about the reason for the change in the language of the deed he submitted and why that deed was not used.
James Baine, a formér Murphy Oil Corporation employee, testified that at the time of the transaction,' it was Deltic’s policy to acquire almost all of the minerals if possible so that it could have control over the land. Baine stated that Sue Dunn, now deceased, was the head of the land department at Deltic at the time of the execution of the deed in question; that she was meticulous; and that she would not have changed the transaction without making sure that Mr. Batson or the realtor knew that he was not going to retain a 3/8 interest in the minerals. Baine testified that Deltic rejected the first deed because the granting clause stated that everything was being conveyed but another clause stated that only a 5/8 interest in the minerals was being conveyed, and Deltic’s policy was to obtain everything. Baine said that |nhe rendered a title opinion on the property prior to closing; that it was Deltic’s intent to get all of Batson’s interest; that the deed used contained a warranty clause and an excepting clause; that Deltic’s intent in using the excepting clause was to protect the grantor from the warranty clause and also to provide that, at the end of the delay period, Deltic would acquire the mineral interest; and that there was nothing unusual about the excepting language used, as it was a standard clause used by Deltic.
On cross-examination, Baine admitted that the land-acquisition paper and the offer and acceptance both stated that 5/8 of the minerals were being conveyed, but he said that the terms in those documents were based upon false information. He testified that in his title opinion, he pointed out that the Bakers owned an undivided 3/8 mineral interest in the property for twenty years. Baine said that he did not comment on the 3/8 interest in his title opinion, nor did he speak to Ms. Dunn about what action should be taken as far as the 3/8 interest was concerned because it was not necessary for the title opinion. Baine again reiterated that the original deed prepared by Batson would not have protected the Batsons, and that the deed that was eventually executed would protect the Batsons and also grant Deltic the additional 3/8 mineral interest at the end of the time period per Deltic’s policy. Baine stated that the offer and acceptance showed that 5/8 of the minerals were being conveyed, but that did not mean that only 5/8 of the minerals were conveyed because there was no reservation or exception. Baine acknowledged that there was a memo in the file from Ms. Dunn to an E.T. May questioning whether the 3/8 interest would revert to Deltic or to 1 IPthe Batsons. Baine interpreted that memo to indicate that Ms. Dunn wanted legal help with reference on how to book when the twenty-year interest would come to Deltic.
If a clause is ambiguous, the trial court “must put [itself] as nearly as possible in the position of the parties to the deed (particularly the grantor) and interpret the language in the light of attendant circumstances.” Gibson v. Pickett, 256 Ark. 1035, 1041, 512 S.W.2d 532, 536 (1974). After the hearing, the trial court issued an order in which it found that the offer to purchase stated that “5/8ths of the minerals to be coyeded [sic],” which the trial court found to clearly indicate that 5/8 of the minerals would be conveyed in the transaction, and that Deltic was aware that only 5/8 of the minerals were to be conveyed as evidenced by the land acquisition report of February 13, 1984, when it prepared the offer to purchase on that date. The trial court further found that, although Deltic presented testimony that its policy in 1984 was to acquire all of the minerals with any tract of land purchased, there was no testimony that it would not purchase land that did not convey all of the minerals or that the Batson transaction would not have taken place without Deltic obtaining all of the mineral interests. The trial court found Batson’s testi mony that he intended to reserve a 3/8 mineral interest at the time he sold the property to Deltic to be credible, and the fact that Batson conveyed the 3/8 mineral interest to his daughters only six months after the sale of the property to Deltic, when there was no dispute over the mineral interest, was further evidence to the trial court of Batson’s intent to reserve a 3/8 mineral interest at the time of the execution of the Batson-Deltic deed. The trial court found that, having ascertained the intent 113of the parties to the Batson-Deltic deed at the time of its execution, it was not necessary to resort to the rules of construction.
We cannot say that the trial court’s findings are clearly erroneous. The trial court did exactly what our court told it to do after we found the deed to be ambiguous— the trial court developed the facts and determined the parties’ intent. Deltic argues that the evidence in this record merely supports a choice of possibilities; however, Deltic ignores the fact that, after hearing the evidence, the trial court made credibility determinations in favor of ap-pellees, and our court must respect those credibility decisions. Deltic argues that “it is impossible not to believe that they [Ms. Dunn and real-estate agent] had some conversation concerning the difference between the two deed forms [Batson’s original proffered deed and the deed ultimately used] and resolved the matter in favor of the [Batson-Deltic deed].” There is simply no evidence of this conversation that Deltic insists must have occurred; to accept this argument would be rank speculation on the part of our court as well as ignoring the trial court’s determinations regarding credibility, which we will not do.
Affirmed.
HART and GRUBER, JJ., agree. | [
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JIM GUNTER, Justice.
| jAppellants/cross-appellees, the Arkansas Department of Correction and its director, Ray Hobbs, and appellees/cross-appellants, a group of several prisoners awaiting execution on Arkansas’s death row, appeal an order of the Pulaski County Circuit Court granting in part and denying in part cross-motions for summary judgment. We have jurisdiction over this appeal as it involves issues pertaining to the interpretation or construction of the Arkansas Constitution. See Ark. Sup.Ct. R. l-2(a)(l) (2011). We affirm the circuit court’s order to the extent it declared Ark. Code Ann. § 5-4-617 (Supp.2011), unconstitutional and found that |2certain claims presented by the prisoners were moot. We reverse the circuit court’s order striking language from the statute and granting injunctive relief.
On March 8, 2010, Jack Harold Jones, a prisoner incarcerated on Arkansas’s death row, filed suit against Ray Hobbs, in his official capacity as Director of the Arkansas Department of Correction, and the Arkansas Department of Correction (hereinafter collectively referred to as “ADC”). Jones asserted that the Method of Execution Act of 2009 (“MEA”), codified at Ark. Code Ann. § 5-4-617, violates the separation-of-powers doctrine in article 4 of the Arkansas Constitution. Jones was scheduled to be executed on March 16, 2010. He maintained that his claim was timely because this court had only recently held that the MEA was retroactively applicable to currently incarcerated death-row inmates. Jones asked the court to grant preliminary injunctive relief to stay his execution during the pendency of the case, to enter declaratory judgment that Jones’s execution pursuant to the MEA was unconstitutional, and to grant permanent in-junctive relief barring Jones’s execution until passage of a . new statute incorporating standards to satisfy the Arkansas Constitution.
On July 29, 2010, Jones filed an amended complaint, listing a total of six claims: (1) that the MEA was an unconstitutional violation of the separation-of-powers doctrine; (2) that his execution would violate the Federal Food, Drug & Cosmetic Act (FDCA), codified at 21 U.S.C. §§ 301 et seq., because the ADC lacked a valid prescription for the drugs it intended to use during Jones’s execution; (3) that his execution would violate the FDCA because the drugs the ADC intended to use had not been approved by the Food and Drug Administration (FDA); (4) that his execution would violate the Federal Controlled Substances Act (CSA), |3codified at 21 U.S.C. §§ 801 et seq., because the ADC lacked a valid prescription for the drugs it intended to use during his execution; (5) that his execution would violate the CSA because the ADC staff were to administer controlled substances to Jones without proper registration; and (6) that his execution would violate the Nurse Practices Act (NPA), codified at Ark.Code Ann. § 17-87-101, because the ADC intended to use lay persons to administer the drugs during execution. Jones again sought declaratory and injunctive relief. With permission of the circuit court, nine other death-row inmates, including Stacy Eugene Johnson, Alvin Jackson, Kenneth Williams, Bruce Earl Ward, Jason McGehee, Don W. Davis, Marcel Williams, Frank Williams Jr., and Terrick Nooner . (hereinafter collectively referred to with Jones as “the prisoners”), subsequently filed complaints in intervention asserting substantially the same claims and requesting the same relief as Jones in his amended complaint.
On August 17, 2010, ADC filed a motion to dismiss the prisoners’ amended complaints on the basis that they failed to state a claim upon which relief could be granted pursuant to Ark. R. Civ. P. 12(b)(6). It argued that dismissal was appropriate because the lethal-injection statute set forth general execution provisions but left the details to the director of the ADC; because the CSA and the FDCA were not enacted to regulate capital punishment and did not authorize a private cause of action; and because the NPA did not govern the administration of lethal drugs during execution. Following a hearing, the circuit |4court entered an order on December 16, 2010, granting ADC’s motion to dismiss with regard to the FDCA, CSA, and NPA. Accordingly, it dismissed claims two, three, four, five, and six of the prisoners’ amended complaints. It denied ADC’s motion as to the separation-of-powers claim.
On January 24, 2011, the prisoners filed a supplemental complaint arguing that the ADC intended' to execute them using “chemicals obtained from an overseas driving school purporting to distribute drugs from a non-FDA approved manufacturing source.” The prisoners alleged that the ADC refused to disclose any information about the chemicals or how they were procured. The prisoners added three claims: (1) that use of non-FDA approved chemicals purchased from a foreign driving school violated the prohibition against cruel and unusual punishment in the Eighth Amendment and article 2, section 9 of the Arkansas Constitution (claim seven); (2) that the ADC was suppressing information necessary to scrutinize the identity, strength, quality, and purity of the drugs obtained in violation of the due process clauses contained in the Fourteenth Amendment and article 2, section 8 of the Arkansas Constitution (claim eight); and (3) that use of the non-FDA approved drugs obtained from a foreign driving school would violate the prisoners’ rights to due process and rights to be free from cruel and unusual punishment (claim nine). The prisoners asked for temporary, preliminary, and permanent injunctive relief to enjoin the ADC from executing prisoners with the non-FDA approved chemicals and declaratory relief. On February 16, 2011, ADC moved to dismiss claims eight and nine as set forth in the supplemental complaint on the basis that the prisoners had access to the courts, particularly the circuit court involved in this [ ¿litigation, and that the prisoners failed to state a claim upon which relief could be granted. The circuit court granted ADC’s motion to dismiss with regard to claim eight but denied its request to dismiss claim nine.
ADC filed a motion for summary judgment on May 4, 2011, asserting that it was entitled to judgment as a matter of law on the three remaining claims alleged by the prisoners. Specifically, it maintained that claims seven and nine failed because the prisoners had not and could not provide any evidence that the use of the non-FDA approved chemicals created any substantial risk of serious harm. Further, the ADC contended that with regard to claim one, the. facial challenge to the MEA on the basis of separation of powers, it was entitled to judgment as a matter of law because the statute could be applied constitutionally and provided sufficient guidance to executive officials in administering executions. The prisoners filed a cross-motion for summary judgment as to claim one regarding the constitutionality of the MEA on May 31, 2011, asserting that the MEA delegates policymaking discretion to the ADC director without setting forth reasonable standards for the exercise of that discretion in violation of the separation-of-powers clause of the Arkansas Constitution.
Thereafter, on July 21, 2011, ADC filed a second motion for summary judgment asking the court to enter judgment as a matter of law as to claims seven and nine on the basis of mootness. ADC claimed that it had disposed of all lethal chemicals that it had received from the overseas supplier, Dream Pharma, and that it was unable to obtain any additional chemicals from that supplier. Therefore, ADC asserted that there was no further controversy surrounding the lethal-injection chemicals obtained from Dream Pharma, which was .the basis |fifor claims seven and nine, and that those claims should be dismissed as moot.
The court held a hearing on the motions on August 1.5, 2011, and after hearing arguments from counsel, ruled from the bench that the cross-motions for summary judgment were granted in part and denied in part. It found the MEA unconstitutional and struck the language “any other chemical or chemicals, including but not limited to” from Ark.Code Ann. § 5-4-617(a)(2)(D).- The circuit court ordered that only the words “saline solution” remain in § 5-4-617(a)(2)(D). In addition, the court granted in part and denied in part ADC’s second motion for summary judgment, finding that the motion was granted in all respects except that ADC was enjoined from using any sodium thio-pental obtained in violation of any state or federal law. The court issued a final, written order on August 29, 2011, reflecting its bench ruling. ADC filed a notice of appeal from the final order on September 1, 2011. The prisoners filed a notice of cross-appeal on September 22, 2011, from the final order as well as the December 16, 2010 order granting in part ADC’s motion to dismiss claims two, three, four, five, and six; discovery orders entered on December 16, 2010, and October 20, 2010; and the April 7, 2011 order granting in part ADC’s motion to dismiss claim eight.
I. Constitutionality of ArkCode Ann. § 5-Í-617
For its first point on appeal, ADC maintains that the circuit court erred in finding that Ark.Code Ann. § 5-4-617 is facially unconstitutional and erred in striking a portion of the |7statute. It contends that because Ark.Code Ann. § 5-4-617 can be applied in a manner that fully comports with the prohibition on cruel and unusual punishment in both the federal and state constitutions, the prisoners’ argument that the statute is unconstitutional on its face fails. Moreover, ADC argues that the doctrine of separation of powers is not violated where the legislature merely makes law and then confers authority or discretion with regard to execution of that law to the executive branch. The legislature can set forth general provisions and give power to the executive branch to complete the details. Additionally, where the Arkansas Constitution is silent on which branch of government possesses the power to determine the precise conditions to carry out a criminal sentence, the legislature may delegate that power to the executive branch. Here, ADC contends that the legislature did just that with the MEA and furthermore, although unnecessary, gave significant guidance to the executive branch in how to accomplish that general purpose.
The prisoners maintain, in their response on direct appeal and their argument on cross-appeal, that the circuit court was correct to find that the MEA violates the separation-of-powers doctrine but that it erred in striking a portion of the MEA. The prisoners maintain that because the MEA provides no guidelines for the ADC in carrying out lethal-injection executions and allows the ADC unfettered discretion in determining the chemicals to be used and the policies and procedures for administering lethal injection, it is an unconstitutional delegation of legislative power. Additionally, the prisoners assert that as altered by the circuit court, the statute remains constitutionally infirm, and alternatively that it is not severable.
Ordinarily, on appeal from a summary-judgment disposition, the evidence is viewed |sin the light most favorable to the party resisting the motion, arid any doubts and inferences are resolved against the moving party. Aloha Pools & Spas, Inc. v. Employer’s Ins. of Wausau, 342 Ark. 398, 39 S.W.3d 440 (2000). However, in a case where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Id. When parties file cross-motions for summary judgment, as was done in this case on this point, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. McCutchen v. Patton, 340 Ark. 371, 10 S.W.3d 439 (2000). As to issues of law presented, our review is de novo. Preston v. Stoops, 373 Ark. 591, 285 S.W.3d 606 (2008).
Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. Paschal v. State, 2012 Ark. 127, at 8, 388 S.W.3d 429. If it is possible to construe a statute as constitutional, we must do so. Id. Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. Id. Moreover, when interpreting statutes, we make a de novo review, as it is for this court to decide what a statute means. Baker Refrigeration Sys., Inc. v. Weiss, 360 Ark. 388, 201 S.W.3d 900 (2005). Thus, although we are not bound by the trial court’s interpretation, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. The basic rule of statutory construction is to give effect to the intent of the legislature. Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the ^meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible. Id.
Within our state constitution is a specific separation-of-powers provision, providing:
§ 1. The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.
§ 2. No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.
Ark. Const, art. 4, §§ 1, 2. In Department of Human Services v. Howard, 367 Ark. 55, 238 S.W.3d 1 (2006), we explained the specific powers delegated to each branch. The legislative branch of the state government has the power and responsibility to proclaim the law through statutory enactments. Id. The judicial branch has the power and responsibility to interpret the legislative enactments. Id. The executive branch has the power and responsibility to enforce the laws as enacted and interpreted by the other two branches. Id. The doctrine of separation of powers is a basic principle upon which our government is founded, and should not be violated or abridged. Id.
Although on many occasions we have noted that the legislature cannot delegate its power to proclaim the law to one of its sister branches of government, we have recognized that it can delegate discretionary authority to the other branches:
While it is a doctrine of universal application that the functions of the Legislature must 110be exercised by it alone and cannot be delegated, it is equally well settled that the Legislature may delegate to executive officers the power to determine certain facts, or the happening of a certain contingency, on which the operation of the statute is, by its terms, made to depend.
If the law is mandatory in all it requires and all it determines, it is a legislative act, although it is put into operation by officers or administrative boards selected by the Legislature.
State v. Davis, 178 Ark. 153, 156, 10 S.W.2d 513, 514 (1928); see also Ark S. & L. Ass’n Bd. v. West Helena S. & L., 260 Ark. 326, 538 S.W.2d 560 (1976) (noting that legislature cannot delegate its lawmaking power but can delegate where the power is not purely legislative in nature). We have held that “[t]he true distinction is between the delegation of power to make the law, which necessarily involves the discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law. The first can not be done. To the latter no valid objection can be made.” Terrell v. Loomis, 218 Ark. 296, 300, 235 S.W.2d 961, 963 (1951) (quoting Cincinnati, Wilmington & Zanesville, R.R. Co. v. Comm’rs of Clinton County, 1 Ohio St. 77 (1852)).
Consequently, this court has held that such discretionary power may be delegated by the legislature to a state agency as long as reasonable guidelines are provided. Bakalekos v. Furlow, 2011 Ark. 505, 385 S.W.3d 810. This guidance must include appropriate standards by which the administrative body is to exercise this power. Id. A statute that, in effect, reposes an absolute, unregulated, and undefined discretion in an administrative agency bestows arbitrary powers and is an unlawful delegation of legislative powers. Id.
|nIn State v. Bruton, 246 Ark. 293, 437 S.W.2d 795 (1969), we held unconstitutional a statute that gave the state penitentiary board the authority to dictate the mode and extent of punishment for prisoners violating prison rules and to prescribe for its employees what conduct constituted felonious behavior. The statute provided that “any superintendent, subordinate officer or guard having in his charge any convicts who shall himself, or who shall cause any other person to inflict on any convict any greater or more severe punishment than is prescribed by said board, said superintendent, subordinate officer or guard shall be deemed guilty of a felony.” Ark. Stat. 46-158. In concluding that the statute was an unconstitutional delegation of legislative power, we noted that the statute gave no guidelines to the penitentiary board, that the board had sole discretion in determining the limits of conduct, and that without guidance, it could set mínimums and extremes of punishment without restraint. Bruton, supra.
Additionally, in Walden v. Hart, this court held that a statute that allowed the city commissioner or chief of police to designate and authorize what constituted an ambulance or emergency vehicle was unconstitutional because the statute gave unbridled discretion to the city authorities without providing reasonable guidelines. 243 Ark. 650, 420 S.W.2d 868 (1967). This court focused on the fact that the statute at issue did not delineate specific questions or facts for the city official to answer or ascertain prior to authorizing a vehicle as an ambulance or emergency vehicle. Nearly two decades later, in Venhaus v. State ex rel. Lofton, 285 Ark. 23, 684 S.W.2d 252 (1985), we relied on Walden in holding unconstitutional a statute that vested unchecked discretion in a judge to set the salaries for circuit court 112probation officers without providing grades or steps based on training, education, experience, or other facts. Again, the focus was that the statute in question did not specify facts or provide an outline of what the judicial officer was to consider in making his or her decision.
Turning to the specific statute in this case, the current version of the MEA provides that,
(a)(1) The sentence of death is to be carried out by intravenous lethal injection of one
(1) or more chemicals, as determined in kind and amount in the discretion of the Director of the Department of Correction.
(2) The chemical or chemicals injected may include one (1) or more of the following substances:
(A) One (1) or more ultra-short-acting barbiturates
(B) One (1) or more chemical paralytic agents;
(C) Potassium chloride; or
(D) Any other chemical or chemicals, including but not limited to saline solution.
(3) The condemned convict’s death will be pronounced according to accepted standards of medical practice.
(4) The director shall determine in his or her discretion any and all policies and procedures to be applied in connection with carrying out the sentence of death, including but not limited to:
(A) Matters concerning logistics and personal correspondence concerning witnesses;
(B) Security;
(C) Injection preparations;
(D) Injection implementation; or
(E) Arrangements for disposition of the executed convict’s body and personal property.
(5)(A) The policies and procedures for carrying out the sentence of death and any and all matters related to the policies and procedures for the sentence of death including but not limited to the director’s determinations under this subsection are not subject to the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
(B) The policies and procedures for carrying out the sentence of death and any and all matters related to the policies and procedures for the sentence of death are not subject to the Freedom of Information Act of 1967, § 25-19-101 et seq., except for the choice of chemical or chemicals that may be injected, including the quantity, method, and order of the administration of the chemical or chemicals.
(b)(1) If this section is held unconstitutional by an appellate court of competent jurisdiction, the sentence of death shall be carried out by electrocution in a manner determined by the director in his or her discretion.
11S(2) However, if the holding of the appellate court described in subdivision (b)(1) of this section is subsequently vacated, overturned, overruled, or reversed, the sentence of death shall be carried out by lethal ’ injection as described in this section.
Ark.Code Ann. § 5-4-617 (Supp.2011).
As written, subsection (a)(1) adopts “intravenous lethal injection of one (1) or more chemicals” as the method of punishment by death in Arkansas and leaves to the ADC the “kind and amount” of the chemicals to be used to effectuate lethal injection. Thus, subsection (a)(1) gives absolute discretion to the ADC to determine the chemicals' to be used for lethal injection and gives no guidance regarding the selection of those chemicals. In subsection (a)(2), the statute provides a list of possible chemicals that may be used. However, that list is not mandatory. Rather, it articulates some chemicals that the director may, or may not, decide to use. The word “may” as employed implies permissive or discretionary action or | l4conduct and is construed in a permissive sense unless necessary to give effect to an intent to which it is used. See Chrisco v. Sun Indus., Inc., 304 Ark. 227, 229, 800 S.W.2d 717, 718 (1990). Further, the list of chemicals is not exhaustive and includes, as an option, broad language that “any other chemical or chemicals” may be used.
Our prior cases interpreting statutes in conflict with the doctrine of separation of powers focus on whether a statute gives “absolute, unregulated, an.d undefined discretion” to a government agency and whether reasonable guidelines have been provided by which the administrative body is to exercise its discretionary power. The MEA plainly gives absolute and exclusive discretion to the ADC to determine what chemicals are to be used. Although subsection (a)(2) attempts to provide a list of chemicals for use in lethal injection, the ADC has unfettered discretion to use chemicals from that list or chemicals not included on that list. It can hardly be said that the word “may” used in conjunction with a list of chemicals that itself is unlimited provides reasonable guidance. Although the General Assembly can delegate to the ADC the power to determine certain facts or the happening of a certain contingency, the current MEA gives the ADC the power to decide all the facts and all the contingencies with no reasonable guidance given absent the generally permissive use of one or more chemicals. Moreover, subsection (a)(4) expressly gives complete discretion to the ADC to determine all policies and procedures to administer the sentence of death, including injection preparations and implementation. The statute provides no guidance and no general policy with regard to the procedures for the ADC to implement lethal injections.
The ADC argues that reasonable guidance can be found in the prohibition on cruel 11Band unusual punishment in the Eighth Amendment and our state counterpart, Ark. Const, art. 2, § 9. In other words, the ADC maintains that because it is bound by the bar on cruel and unusual punishment, this prohibition acts as a supplement to the statutory language found in the MEA. This argument is misplaced. The ADC is correct that we presume that officials act with good faith and follow the law in carrying out their duties, such as implementing the mandate of the General Assembly for capital punishment by lethal injection. See Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). Nonetheless, the argument presented in this case is that the General Assembly has delegated its legislative authority by giving unfettered discretion, without sufficient guidelines for the use of that discretion, to another branch of government. The central question is thus whether the General Assembly has provided sufficient guidance. Where it has failed to do so, the doctrine of separation of powers has been violated and other constitutional provisions cannot provide a cure.
It is evident to this court that the legislature has abdicated its responsibility and passed to the executive branch, in this case the ADC, the unfettered discretion to determine all protocol and procedures, most notably the chemicals to be used, for a state execution. The MEA fails to provide reasonable guidelines for the selection of chemicals to be used during lethal injection and it fails to provide any general policy with regard to the lethal-injection procedure. Despite the fact that other states may analyze similar statutes differently according to their respective constitutions, we are bound only by our own constitution and our own precedent. Further, we note specifically that nothing in this opinion shall be construed as implying what modifications to the statute would pass constitutional muster.
| ifiAlthough we agree with the circuit court’s finding that the MEA is unconstitutional on its face, we must, address the fact that the circuit court attempted to correct the constitutional issue by striking a portion of the language in subsection (a)(2)(D). On cross-appeal, the prisoners contend that the circuit court erred in striking a portion of the statute. The prisoners assert that the court’s ruling striking some language made no operative change to the statute because it still grants complete discretion to the ADC in choosing the chemi-' cal or chemicals where subsection (a)(2) is but a list of permissive, not mandatory, chemicals that may, or may not, be used to effectuate lethal injection in the complete discretion of the ADC. Alternatively, they maintain that the MEA is not severable.
We agree with the prisoners that the circuit court’s striking of specific language in subsection (a)(2)(D) — “[a]ny other chemical or chemicals, including but not limited to” — had no practical effect on the constitutionality of this statute. The ADC had the absolute discretion under subsection (a)(1) to determine the kind and amount of the chemicals to be injected. Moreover, as previously explained, subsection (a)(2) uses the term “may,” which constitutes a permissive list in this situation. Therefore, the ADC was free to choose a chemical from that list or any other chemical, regardless of the language used in subsection (a)(2)(D). As such, striking the language in subsection (a)(2)(D) had no operative impact under these circumstances.
We also agree with the prisoners that the statute is not severable, and therefore, its constitutional infirmity cannot be removed. To determine whether the invalidity of part of an act is fatal to the entire legislation, we look to whether a single purpose is meant to . be | ^accomplished by the act, and whether the sections of the act are interrelated and dependent upon each other. McGhee v. Ark. State Bd. of Collection Agencies, 375 Ark. 52, 289 S.W.3d 18 (2008). The mere fact that an act contains a severability clause is to be considered, but is not alone determinative. Id.
First, in examining whether Act 1296 of 2009 contains a single purpose, we need look no further than the act itself. Its title states that it is “[a]n act to clarify the existing procedures for capital punishment by lethal injection; and for other purposes”; its subtitle is “[t]o clarify the existing procedures for capital punishment by lethal injection.” This theme is repeated in the Act’s emergency clause, which states:
SECTION 3. EMERGENCY CLAUSE. It is found and determined by the General Assembly of the State of Arkansas that the prompt administration of the death penalty following conviction of a capital offense is necessary to deter the future commission of capital offenses; and that this act is immediately, necessary to deter capital offenses and prevent the loss of lives that result upon the commission of capital offenses. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on:
(1) The date of its approval by the Governor.
(2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or
(3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.
In our review of the first prong of the severability test, the clear purpose of Act 1296 is to provide the procedures, or methods, by which the State may execute a defendant who was convicted of a capital offense and sentenced to death by lethal injection.
Next, we determine whether sections of the MEA are “interrelated and dependent” upon each other. In doing so, this court has recognized the efficacy of severability clauses 11swhen part of an act is unconstitutional, but other provisions are valid, and we have had no difficulty in removing words or phrases, or even entire sections from statutes, when those provisions offended constitutional limitations upon legislative action. Levy v. Albright, 204 Ark. 657,163 S.W.2d 529 (1942). If an act is constitutional in part, the valid portion will be sustained if complete in itself and capable of being executed in accordance with the apparent legislative intent. Id. at 659, 163 S.W.2d at 531. The constitutional and unconstitutional provisions may even be contained in the same section. Id. If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. Id. at 660, 163 S.W.2d at 531.
Here, the MEA as codified does not contain an express severability clause. While this factor alone is not determinative, it suggests that the legislative intent was to pass the act as a whole. More significantly, the statute as a whole appears to accomplish one objective-the clarification of the method of execution by lethal injection. Thus, we are loathe to affirm the circuit court’s striking the language “[a]ny other chemical or chemicals, including but not limited to” leaving only the words, “saline solution,” particularly when the striking of this language has no practical effect on the statute’s unconstitutionality.
For these reasons, we declare the entirety of the MEA unconstitutional. Accordingly, we affirm the circuit court’s ruling that the statute is unconstitutional and reverse its ruling striking specific language from subsection (a)(2)(D). We remand for entry of an order consistent with this opinion.
119II. Injunctive Relief
For its second point on appeal, the ADC argues that this court should reverse the circuit court’s issuance of an injunction restraining the State from obtaining sodium thiopental by any means that violates state or federal law. The circuit court entered this injunction after hearing evidence that the ADC had obtained seventy-five vials of “Thiopental Injection BP” from Dream Pharma, a vendor in the United Kingdom. The ADC maintains that this court should reverse the issuance of the injunction because all of the sodium thiopental that was- obtained from Dream Pharma has been destroyed, rendering the issue moot; because the injunction is vague and over broad where it does not give specific detail as to what state and federal law with which the ADC must comply; and because the injunction applies into the indefinite future.
The prisoners maintain that the issue is not moot because claims seven and nine, which the injunction was based on, were not limited to the sodium thiopental manufactured and obtained from Dream Phar-ma but to the ADC’s use of any sodium thiopental obtained in violation of state and federal law because without FDA approval, unregulated drugs may vary widely in identity, strength, quality, and purity. The prisoners contend that the injunction was necessary because the ADC’s conduct with regard to obtaining sodium thiopen- tal, which is scarce and largely unavailable in the United States, is capable of repetition but evasive for review purposes.
As a general rule, the appellate courts of this state will not review issues that are moot. Delancy v. State, 356 Ark. 259, 151 S.W.3d 301 (2004). To do so would be to render advisory | ^opinions, which we will not do. Id. Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id. This court has recognized two exceptions to the mootness doctrine. Id. The first one involves issues that are capable of repetition, yet evade review, and the second one concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id.
In the present case, the circuit court found that the ADC’s second motion for summary judgment, which argued that claims seven .and nine should be dismissed as moot, should be granted in all respects except that the ADC. was enjoined from obtaining sodium thiopental in violation of state and federal law.-
We agree with the circuit court’s conclusion that the ADC’s procurement of sodium thiopental from an unregulated vendor in the United Kingdom is moot; however, we reverse the grant of injunction. It is clear from our review of the record that claims seven and nine in the prisoners’ supplemental complaint were limited to the sodium thiopental obtained from Dream Pharma (and not other illicitly obtained sodium thiopental). Particularly, in their supplemental complaint, the prisoners did not pray for an injunction to prevent the ADC from obtaining sodium thiopental in any illegal manner. Rather, they prayed for an injunction to prevent the ADC from using the sodium thiopental it obtained from Dream Pharma to execute the prisoners. Because all the sodium thi-opental obtained from Dream Pharma has 121been destroyed and cannot again b.e obtained from that source, thése prisoners no longer run the risk of being executed with sodium thiopental obtained from Dream Pharma. Those claims, therefore, are moot. As such, injunctive relief was not proper, and we reverse and remand.
On cross-appeal, the prisoners urge this court to reverse the circuit court’s grant of summary judgment as to the merits of claims seven and nine, which they characterize as constituting as-applied constitutional' challenges to the lethal-injection procedures. As previously explained, our review of the prisoners’ supplemental complaint reveals that claims seven and nine were specific to the sodium thiopental obtained from Dream Pharma. The circuit court found those claims moot because the sodium thiopental obtained from Dream Pharma had been destroyed and could not again be obtained from that source. Because we agree with the circuit court that those claims are moot, we need not address the merits of those claims.
Direct appeal affirmed in part and reversed and remanded in part; cross-appeal dismissed in part and reversed and remanded in part.
BAKER, J., and Special Justice BYRON FREELAND dissent.
CORBIN, J., not participating.
. After the circuit court entered its final order in this case, we reversed and remanded Frank Williams Jr.'s death sentence and ordered that he be resentenced. Williams v. State, 2011 Ark. 534, 2011 WL 6275536. As a result, Williams no longer has any justiciable interest in the outcome of this lawsuit.
. The prisoners make no argument in their brief on appeal with regard to any of these intermediate orders. Therefore, those arguments have been abandoned for purposes of appeal and need not be addressed. Durham v. Marberry, 356 Ark. 481, 156 S.W.3d 242 (2004). ' ■'= '
. The current version of Ark.Code Ann. § 5-4-617, passed by Act 1296 of 2009, replaced the previous method-of execution statute, which read as follows:
(a)(1) The punishment of death is to be administered by a continuous intravenous injection of a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent until the defendant's death is pronounced according to accepted standards of medical practice. (2) The Director of the Department of Correction shall determine the substances to be uniformly administered and the procedures to be used in any execution.
(b) If the execution of the sentence of death as provided in subsection (a) of this sectiqn is held unconstitutional by an appellate court of competent jurisdiction, then the sentence of death shall be carried out by electrocution in a manner determined by the director.
(c) Nothing in this section shall be construed as a declaration by the General Assembly that death by electrocution constitutes cruel and unusual punishment in violation of the United States Constitution or the Arkansas Constitution.
Ark.Code Ann. § 5-4-617 (Repl.1997).
. The prisoners offered no proof to the contrary with regard to the destruction or subsequent procurement of sodium thiopental from Dream Pharma. | [
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ROBERT J. GLADWIN, Judge.
|,Appellant Rosemary Blakes appeals from the Crittenden County Circuit Court’s revocation of her suspended sentence. On June 9, 2008, appellant’s suspended sentence was revoked, and she was sentenced to six years’ imprisonment for breaking and entering and twelve years’ imprisonment for her conviction on each of two counts of forgery, said sentences to run concurrently. She contends on appeal that the lower court erred in revoking her suspended sentence because the State failed to produce sufficient evidence to support the revocation petition. We disagree and affirm the revocation.
_[2Statement of Facts
On September 29, 2006, appellant was sentenced to a six-year suspended sentence for breaking and entering. On May 30, 2007, appellant pled guilty to two counts of forgery and received a ten-year suspended sentence. The State filed a petition for revocation of the suspended imposition of sentence on March 18, 2008, alleging that appellant had violated the terms and conditions of her suspended sentence.
At the revocation hearing, the evidence was that appellant had been arrested while she was a passenger in a car driven by a friend. Her cousin was standing beside the driver’s side window, and when police pulled up behind the car, appellant’s cousin tossed something into the window. The driver was then seen stuffing what police believed to be crack cocaine into her sock. When the driver was searched, crack cocaine was found in her sock and marijuana was found in her waist band.
Appellant was observed by one police officer as having her hand down beside her right leg, between the door and the passenger seat. A search of the vehicle revealed a small amount of crack cocaine in the floorboard located between the passenger seat and the car |sdoor. Appellant testified that she was only receiving a ride from her cousin and his friend and was unaware that they were involved with crack cocaine. However, she also testified that she knew her cousin was a felon, that the neighborhood she was in had a reputation as a drug neighborhood, and that she did not leave the car when she had the chance to leave.
The trial court found that appellant was in violation of the terms and conditions of her suspended sentence. Specifically, the trial court found that the State had shown by the greater weight of the evidence that appellant associated with persons she knew to be involved in committing a crime and that she had reason to believe had been convicted of crimes. Appellant filed a timely notice of appeal, and this appeal followed.
Standard of Review
In a hearing to revoke a probation or suspended imposition of sentence, the State must prove its case by a preponderance of the evidence. Haley v. State, 96 Ark.App. 256, 240 S.W.3d 615 (2006). To revoke probation or a suspension, the circuit court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Ark.Code Ann. § 5-4-309 (Repl.2006); Haley, supra. The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Id. When appealing a revocation, the appellant has the burden of showing that the trial court’s findings are clearly against the preponderance of the evidence. Id. Evidence that is insufficient for a criminal conviction may be sufficient for the | ^evocation of probation or suspended sentence. Id. Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge’s superior position. Id.
Discussion
Appellant claims that the trial court erred in revoking her suspended imposition of sentence because the State failed to produce sufficient evidence to support the revocation petition. The State alleged that appellant possessed cocaine, associated with other felons, and associated with others violating criminal laws. The trial court revoked the suspended sentence based upon appellant’s association with others committing crimes and others she had reason to believe had been convicted of a crime. Appellant argues that by not finding that appellant had constructive possession of the crack cocaine found in the car, the trial court could only rely upon the fact that she knew the other individuals were committing a crime and that she was associating with other felons. She claims that there was no proof that she was aware that the parties were in possession of drugs until they were arrested. Also, she claims that she believed that she was going to visit her cousin’s mother in the hospital. She argues that the mere fact that her cousin is a felon and they were together should not be sufficient to revoke.
The State maintains that the trial court’s revocation is supported by a preponderance of the evidence. The testimony before the trial court included that appellant accepted a ride | ¡¡from her cousin, a felon, and his friend, whom appellant knew to be involved in the drug trade. Further, appellant had been out with these people the night before the arrest. On the day of the arrest, appellant’s cousin was seen by police throwing something to the driver of the car that appellant was riding in. A search of the driver led to police finding a package of cocaine in her sock and marijuana in her waistband. Appellant was seen moving her hand between the passenger seat and the door. "When the car was searched, police found a rock of crack cocaine where appellant’s hand had been. We hold that sufficient evidence supports the circuit court’s ruling that appellant was guilty of associating with other felons and associating with others violating criminal laws.
Affirmed.
GRUBER and GLOVER, JJ„ agree.
. Appellant's brief does not comply with the Rules of the Arkansas Supreme Court and Court of Appeals, Rule 4 — 2(a)(8) (2004), in that the addendum lacks the conditions of the suspended imposition of sentence. Under Rule 4-2(b)(3), "If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case ... the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies.” We are mindful of our supreme court's recent per curiam, Roberts v. Roberts, 2009 Ark. 306, 319 S.W.3d 234; however, we do not consider the deficiency herein to be such that this court cannot reach the merits of the case pursuant to Rule 4-2(b)(3). See McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001). Thus, we need not as is allowed by Rule 4-2(b)(3). | [
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JIM GUNTER, Justice.
liAppellant Ricky Dale Smith was convicted of capital murder in violation of Ark.Code Ann. § 5-10-101 (Supp.2009), for which he was sentenced to life in prison without the possibility of parole, and four counts of committing a terroristic act in violation of Ark.Code Ann. § 5-13-310 (Supp.2009), for which he was sentenced to fifty years’ imprisonment on each count, all sentences to run concurrent. Our jurisdiction is pursuant to Rule l-2(a)(2) of the Rules of the Arkansas Supreme Court. Appellant asserts two points on appeal: (1) that the trial court abused its discretion in allowing into evidence testimony regarding two subsequent aggravated robberies in which appellant was an alleged participant, and (2) that the trial court abused its discretion in allowing evidence of a subsequent attempted homicide in which appellant was implicated. We affirm on both points.
Appellant is one of three defendants, along with Kevin Banks and Marcus Smith, who [¿were charged with the December 2007 drive-by home shooting that resulted in the death of six-year-old Kam-ya Weathersby. The home on Martin Luther King Boulevard in Little Rock was shot at forty-eight times, and seven of those shots hit Kamya, who at the time of the shooting was in her bed. As a result of her injuries, Kamya died the next day. The State’s theory of the case was that Antoine Jones, who lived in the house with Kamya’s mother, was the intended victim due to his knowledge regarding an earlier murder committed by Banks. At the time of the shooting, Antoine was present in the house as well as Kamya’s mother, LaShan-dra Washington, and her two other daughters, Aries Jones and Jasriea Vick.
Prior to trial, the State filed notice of its intention to introduce evidence under Ark. R. Evid. 404(b) relating to two subsequent aggravated robberies, one in Little Rock and one in North Little Rock, in which appellant was an alleged participant and a separate drive-by shooting incident that occurred five months after Kamya’s death in which appellant allegedly fired several rounds at the surviving victims as they were exiting their vehicle. Appellant filed an objection to the State’s intention to admit this additional evidence. The court held a hearing and ruled that the State’s witnesses could refer to appellant’s alleged participation in the subsequent robberies to provide a foundation for the relationship between that witness and appellant to explain why appellant would confess to murder. The court noted that the State was not to go into detail regarding the robberies.
Appellant’s trial began on January 12, 2009. During the State’s opening statement, appellant renewed his objection to the admissibility of any evidence regarding the subsequent |sdrive-by shooting. The court overruled the objection but noted it as a continuing. Thereafter, Washington and Jones testified that on May 12, 2008, they along with their infant daughter drove to their apartment in North Little Rock. Upon exiting their vehicle, they were fired upon numerous times, causing extensive damage to the vehicle. Neither Washington nor Jones saw the shooters.
Janice Brock, who lived nearby, testified that she took her dog out to check her mail when she heard shots and saw a car coming from the direction of the sound. Even though it was dark, the car did not have its lights on, and it almost hit her dog. She jumped in her vehicle and followed the car but lost sight of it when it ran a stop sign. When she arrived at the intersection of 47th Street and Pike, she saw that the car she had been pursuing had hit another car. The only person at the scene was the driver of the other vehicle.
Rozeline Jenkins testified that she lived at the intersection of 47th Street and Pike and that she ran out onto her front porch when she heard a crash. She stated that she saw a woman driving one car and a man exiting another car. The man was carrying a long rifle similar to one she had seen in a military training video. The man ran into her yard before running off into a different direction. Jenkins testified that the man was wearing dark clothing and had something tied around his head. Jenkins called the police, and eventually gave a statement. She was shown a photo lineup, and she indicated appellant as the perpetrator.
Over objections from appellant, the trial court also allowed fourteen-year-old Larry Taylor to testify that on May 19, 2008, several months after the drive-by shooting that killed |4Kamya, he and appellant robbed two gas stations. Taylor stated that he had become associated with appellant prior to the robberies and that appellant warned him of an ongoing “beef’ with Antoine Jones. Taylor testified that appellant admitted he had tried to kill Jones in December 2007 but had killed Kamya instead. According to Taylor, appellant stated that he and his brothers had been watching the house for a week prior to the shooting. Taylor also testified that appellant described a separate attempt to kill Jones where after shooting at him, appellant drove away from the scene, wrecked the ear, and fled on foot.
During the investigation of the drive-by shooting and car crash, the following evidence was revealed: the abandoned car at the crash scene was a maroon Nissan Max-ima owned by appellant’s father; an inventory search of the Maxima produced a .45-caliber pistol, a clip, and a leather holster; spent .45-caliber casings and sixteen 7.62-by-39 millimeter casings were found at the North Little Rock drive-by scene; ballistics established that the 7.62 casings found at the North Little Rock crime scene were shot from the same weapon that had fired the 7.62 casings found at the Little Rock murder scene; the Maxima’s airbags had deployed, and scientific testing established that appellant’s DNA was found on the driver’s side airbag; and paperwork in appellant’s name was found in the front seat of the Maxima. Law enforcement also searched appellant’s home and found one nine-millimeter live round, five 7.62-by-39 live rounds, and an empty 7.62 ammunition box in appellant’s bedroom.
Appellant makes two arguments on appeal, both of which rely on Rule 404(b). The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion (5of the circuit court, which this court will not disturb on appeal absent a showing of manifest abuse. Kelley v. State, 2009 Ark. 389, 327 S.W.3d 373. Rule 404(b) provides that
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ark. R. Evid. 404(b) (2009). Evidence offered under Rule 404(b) must be independently relevant to make the existence of any fact of consequence more or less probable than it would be without the evidence. Kelley, supra. In other words, the prior bad act must be independently relevant to the main issue, in that it tends to prove some material point rather than merely proving that the defendant is a criminal. Id. Evidence may be independently relevant if it shows motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. See Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). Evidence admitted pursuant to 404(b) must prove to not be too separated in time, making the evidence unduly remote. Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006). The trial judge is given sound discretion over the matter of remoteness, and will be overturned only when it is clear that the questioned evidence has no connection with any issue in the case. Id.
In addition, we have held that evidence may be relevant in connection with other facts to form a link in the chain of evidence necessary to support a party’s contention. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). Furthermore, testimony can be relevant if it provides the necessary context for other evidence. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). However, it is important to note that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Ark. R. Evid. 403 (2009).
For his first point on appeal, appellant maintains that the circuit court abused its discretion in allowing Larry Taylor to testify that he and appellant committed two aggravated robberies several months after the murder of Kamya Weathersby. Appellant contends that the evidence was not proper under Rule 404(b) because its only purpose was to show that appellant was a criminal and more than likely to have been involved in Kamya’s murder; that the testimony was not independently relevant; and that the danger of unfair prejudice outweighed any probative value of the testimony. The State responds, noting that appellant does not challenge allowing Taylor to testify regarding the confession appellant allegedly made but only Taylor’s reference to appellant’s alleged participation in the two robberies. The State asserts that Taylor’s testimony about the robberies was relevant and necessary to explain why appellant would confide in Taylor about the shooting that re- suited in Kamya’s death; that Taylor’s testimony was admissible under Rule 404(b) to show appellant’s motive, opportunity, intent, preparation, plan, knowledge, and identity with regard to the shooting of Kamya; and that the testimony was relevant to establish context for Taylor’s statements.
Taylor’s testimony provided details corroborating other evidence that was presented at the trial, including that appellant and his brothers were trying to kill Jones. Moreover, Taylor testified that appellant confessed to his participation in the killing of Kamya. That ^confession is independently relevant to prove appellant’s involvement in the murder of Kamya. Per the court’s instruction, Taylor did not go into detail regarding the two subsequent robberies, but mentioned them to provide context for the jury as to his connection with appellant and a basis for why appellant would trust Taylor enough to confide in him. Once Taylor explained his connection to appellant, Taylor’s testimony provided corroboration of appellant’s involvement in the shooting of Kamya and second attempt to murder Jones. Therefore, we are satisfied that the circuit court did not abuse its discretion in finding that Taylor’s testimony regarding the robberies was relevant and admissible under Rule 404(b). Appellant also makes a cursory argument that the evidence should have been excluded because its prejudicial effect outweighed its probative value. This argument is not developed, and we will not consider arguments not supported by legal authority or convincing argument. Williams v. State, 371 Ark. 550, 268 S.W.3d 868 (2007).
Similar to his first argument, appellant contends in his second point on appeal that the trial court abused its discretion in allowing testimony regarding the separate shooting incident involving LaShandra Washington and Antoine Jones in May 2008. Appellant maintains that this evidence was not admissible under Rule 404(b) because the State could not prove beyond a reasonable doubt that appellant was involved in the subsequent shooting. Appellant focuses on the circumstantial nature of the evidence substantiating his involvement in the second shooting. The State asserts that evidence that appellant was involved in a subsequent attempt to kill Jones was relevant under Rule 404(b) to show motive, intent, knowledge, and absence |8of mistake with regard to the shooting of Kamya. The State points to the repeated attempts to kill Jones as corroboration of Taylor’s testimony that appellant and Jones were “beefing.”
The evidence the State presented establishing appellant’s alleged participation in a second murder attempt on Jones was clearly independently relevant to show motive, opportunity, intent, and absence of mistake with regard to the shooting that killed Kamya. Appellant’s repeated attempt to kill Jones corroborated the testimony of both Jones and Taylor that appellant was in a “beef’ with Jones and wanted to kill him. The State’s evidence regarding appellant’s participation in the subsequent shooting included DNA evidence and an eyewitness identification. Appellant’s argument on appeal addresses the weight of the evidence rather than its relevancy. However, the jury alone determines what weight to give evidence and may reject it or accept all or any part of it that the jurors believe to be true. Jackson v. State, 2009 Ark. 336, 321 S.W.3d 260. We will not weigh matters of credibility, and we are convinced that the circuit court did not abuse its discretion in allowing evidence of the subsequent shooting under Rule 404(b). Finally, appellant makes another superficial argument that the evidence should have been excluded because its prejudicial effect outweighed its probative value. This argument is not developed, and we will not consider arguments not supported by legal authority or convincing argument. Williams, supra.
Pursuant to Ark. Sup.Ct. R. 4 — 3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005).
^Affirmed.
HANNAH, C.J., dissenting. | [
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RONALD L. SHEFFIELD, Justice.
liAppellant Stark Ligón, Executive Director of the Office of Professional Conduct (OPC), appeals from a February 23, 2009 order filed by Panel C of the Supreme Court Committee on Professional Conduct (Committee) finding that David Rees violated Rule 1.8(e) of the Arkansas Model Rules of Professional Conduct. On appeal, the OPC argues that the Committee erred in (1) finding no violation of Rule 1.5(a) in Counts A.1, A.2 and A.4 of the complaint; (2) finding no violation of Rule 1.5(c) in Counts B.l and B.2; and (3) not implementing a more substantial or appropriate sanction for the overall misconduct proven. This court has jurisdiction pursuant to Ark. Sup. Ct. R. 1 — 2(a)(5), as this appeal involves the discipline of attorneys. We affirm the Committee’s findings.
On November 16, 2006, Kyle Brandon filed a grievance with the OPC regarding Mr. [2Rees’s conduct as an attorney representing Mr. Brandon in a personal-injury claim. The facts of Mr. Brandon’s personal-injury claim are as follows. On September 6, 2003, Mr. Brandon was injured in a vehicle collision involving a vehicle owned by Tweedy Contractors (Tweedy). Two days later, he signed a personal-injury contract with the Rees law firm while in a Memphis hospital. The contract provided for a contingent legal fee of 33.33% of any recovery before trial, and 40% if the case went to trial. The Rees law firm advanced money to Mr. Brandon on two different occasions from the Rees law firm funds against any future recovery. The firm advanced Mr. Brandon $1000 on April 24, 2004, which became count C.l of the complaint. The firm later advanced Mr. Brandon $500 on December 17, 2004, and $100 on November 15, 2005, which became counts C.2 and C.3 of the complaint, respectively.
On May 14, 2004, Mr. Brandon was arrested and charged with a felony in Greene County, Arkansas. In mid-summer of 2004, Mr. Brandon also faced felony drug charges in Missouri. Mr. Rees agreed to represent Mr. Brandon in the Greene County felony case for a fee of $25,000 to be withheld from Mr. Brandon’s personal-injury recovery. Mr. Brandon was in need of money and contacted Whi-tehaven P.I. Fund, LLC (Whitehaven), a litigation lender, and received an advance of $20,000 against any possible future recovery from his personal-injury claim against Tweedy. The money was deposited into the Rees law firm trust account and the funds were distributed to Mr. Brandon. In April of 2005, Mr. Rees filed a suit against Tweedy on Mr. Brandon’s personal-injury claim. Tweedy filed a $300,000 Offer of Judgment on January 31, 2006, and Mr. Rees and Mr. Brandon settled the claim for that | samount in pretrial mediation in February of 2006. On February 17, 2006, Mr. Brandon and Mr. Rees had a meeting to discuss the “settlement sheet” for the $300,000. The settlement sheet reflected a legal fee of $120,000, or 40% of the recovery, rather than the 33.33% percent recovery as provided in the contract. The sheet also listed the advances made by Whitehaven totaling $29,000. With interest, the amount owed to Whitehaven had increased to $71,688. Mr. Rees offered to negotiate this amount down on Mr. Brandon’s behalf. Mr. Brandon met again with Mr. Rees’s staff members on March 31, 2006, to review the new settlement sheet. The sheet reflected the negotiated reduction in the Whitehaven advances to $55,000, a reduction of $16,000, of which Mr. Rees kept $4653 as his fee. The sheet still showed a contingent legal fee of 40%. Mr. Brandon later claimed that he had pointed out the discrepancy to members of the firm both times he reviewed the sheet, but Mr. Rees took no action to correct it.
In mid-April of 2006, Mr. Brandon was arrested on another drug matter in Greene County. He contacted Mr. Rees for legal representation on this matter as well. Mr. Rees agreed to take the case for $7392, which was to be taken out of the remaining funds owed to Mr. Brandon from the Tweedy settlement. Mr. Brandon received the $2000 remaining in the account a month or two later. Mr. Brandon later hired a new attorney, Bill Stanley, who took over his criminal case from Mr. Rees. In an effort to avoid another conviction and a prison term, the trial court permitted Mr. Brandon to enter an eighteen-month treatment program.
In November of 2006, while in rehabilitation treatment, Mr. Brandon filed a grievance against Mr. Rees with the OPC, claiming that Mr. Rees overcharged him in the Tweedy |4settlement. Greg Brandon, Kyle Brandon’s uncle, acting as attorney-in-fact for Kyle Brandon, wrote Mr. Rees asking for documents and an explanation regarding the distribution of Mr. Brandon’s settlement funds. The OPC requested the same documents from Mr. Rees. Mr. Rees contacted Arlon Woodruff to represent him in this matter. Byron Freeland, an attorney hired by Greg Brandon, raised the issue of the 40% fee with Mr. Rees. Mary Caines and Cynthia Copeland, employees of Mr. Rees, executed affidavits in early 2007 stating that they had mistakenly assumed the Brandon personal-injury case was a 40% fee case but had not checked his contract to verify that fee. On March 21, 2007, Mr. Woodruff sent Mr. Freeland a check from the Rees law firm for $27,500; of that, $20,000 represented the disputed fees and $7,500 was for the fee paid in the second criminal case for which Mr. Brandon had hired another attorney to represent him.
On June 8, 2007, Mr. Rees sent a letter to the OPC detailing his actions in representing Mr. Brandon and the accompanying fees. The letter included two invoices from National Legal Research (NLR) for legal research conducted on behalf of the firm, one regarding the criminal case and the other the personal-injury case, both of which were charged on the Tweedy “settlement sheet.”
On October 11, 2007, a disciplinary complaint was served on Mr. Rees’s counsel. The complaint alleged violations of the following Model Rules of Professional Conduct: Rule 1.5(a), which requires that a lawyer’s fee be reasonable; Rule 1.5(c), which requires that a contingent-fee agreement be in writing and clearly notify the client of any expenses for which the client will be liable; and Rule 1.8(e), which requires that a lawyer not provide financial | ¿assistance to a client in connection with pending or contemplated litigation. The OPC asked that it be awarded costs for the investigation and hearing of the proceedings in this case, fines, and restitution. Mr. Rees filed a response on November 30, 2007, in which he denied any wrongdoing under the Model Rules of Professional Conduct. This court rejected a proposed discipline by consent, which encompassed all four of the complaints. Mr. Rees requested a de novo public hearing pursuant to Section 10.D.3 and Section 11 of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law.
On February 5, 2009, a disciplinary hearing was held in which Mary Caines, Mr. Rees’s paralegal from 2006, testified that Mr. Brandon did not raise concerns regarding the 40% fee issue at either settlement review. She also stated that it was her experience that when Mr. Rees would negotiate down a presettlement funding lien, such as with Whitehaven, the client received 100% of the savings. Mr. Rees did not testify. The Panel reviewed the two NLR invoices submitted as exhibits. The OPC also introduced the testimony of Judge Burnett from a previous case involving Mr. Rees. Judge Burnett testified that he was approached by Mr. Rees with a job offer as well as an offer to discuss accommodating any future political-office plans should he come work for Mr. Rees.
The Committee found that Mr. Rees committed three violations of Rule 1.8(e) of the Arkansas Rules of Professional' Conduct, which prohibits certain financial assistance to clients, because of the advances made to Mr. Brandon from the Rees law firm funds. The Committee found no violations of Rule 1.5(a) and (c) regarding excessive or unreasonable fees. It sanctioned Mr. Rees with a “caution” and a $1000 fine and ordered him to pay $417.80 in | fiCosts for the hearing. The OPC filed a notice of appeal on March 16, 2009.
We have previously stated our standard of review with regard to findings of the Committee as follows:
Pursuant to Section 12(B) of the Procedures, on appeal, this court carries out a de novo review on the record. A de novo review on the record determines whether the factual findings were clearly erroneous, or whether the result reached was arbitrary or groundless. Due deference is given to the Committee’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. However, conclusions of law are given no deference on appeal. The Committee’s findings of fact will not be reversed unless the findings are clearly erroneous, and the action taken by the Committee will be affirmed unless it is clearly against the preponderance of the evidence.
Stilley v. Sup. Ct. Comm. on Prof'l Conduct, 370 Ark. 294, 301, 259 S.W.3d 395, 399 (2007) (citations omitted). Furthermore, a finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id.
For its first point on appeal, the OPC argues that the Committee clearly erred in finding no violation of Arkansas Rule of Professional Conduct 1.5(a) and (c) in Counts A.1., A.2, A.4., B.1, and B.2. The counts state that Mr. Rees took an additional and excessive legal fee of $4653 for negotiating a reduction in the amount charged by Whitehaven, and that the 40% contingency fee and the charge for research done and billed by NLR were unreasonable. The OPC claims that the Committee should have found that Mr. Rees violated the rule alleged in these counts and that its decision was clearly erroneous and against the preponderance of the evidence. Mr. Rees counters that the fee he charged for representing Mr. Brandon was reasonable considering his experience and the time involved in negotiating |7the personal-injury claim and the reduction in the presettlement funding lien. He also argues that this court should uphold the findings of the Committee as his actions were found to be reasonable by the Committee.
Rule 1.5 of the Arkansas Rules of Professional Conduct states,
(a) A lawyer’s fee shall be reasonable. A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
Ark. R. Prof'l Conduct 1.5. This court has previously discussed the reasonableness of fees in Arens v. Committee on Professional Conduct, 307 Ark. 308, 820 S.W.2d 263 (1991). In Arens, this court stated,
The fact that a fee may be high does not alone make the fee unreasonable.... However, the amount of a retainer is not the sole consideration in determining whether a fee is reasonable. If a lawyer charges a reasonable retainer and is retained for the purpose of providing specified services, but never performs those services, the fee charged would become unreasonable. Just as a lawyer cannot bill a client for work he has never performed in the past, a lawyer cannot bill a client for work he will never perform in the future.
Id. at 310-11, 820 S.W.2d at 265. In Ar-ens, this court held that the fees were not unreasonable because of the amount charged, but because the lawyers had failed to do the work.
In the case at hand, the OPC claims that the Committee clearly erred in not finding that Mr. Rees violated Rule 1.5 on several counts. We do not agree. Although Mr. Rees did charge more than what he originally contracted to charge in representing Mr. Brandon, he rectified the situation and reimbursed the client, albeit after the grievance was filed. Furthermore, the Committee found, by unanimous vote, that the actions of Mr. Rees did not violate Arkansas Rule of Professional Conduct 1.5 with respect to charging or collecting an unreasonable fee. At the hearing, Mr. Brandon testified that he brought this issue to the attention of the firm on two separate occasions. Whether the Committee considered Mr. Brandon’s testimony in making its decision is unclear from the record but, under our standard of review, issues of credibility of witnesses are left to the Committee because they are in a better position to make such a determination. Based on the facts presented, the Committee did not clearly err in finding no violations with respect to Arkansas Rule of Professional Conduct 1.5.
For the final point on appeal, the OPC argues that the Committee’s sanction against |9Mr. Rees for violation of Rule 1.8(e) on counts C.l, C.2 and C.3, was not proportional to the violation. The OPC claims that Mr. Rees’s conduct warranted a stronger sanction. Section 17 of the Procedures Regulating Professional Conduct of Attorneys prescribes the types of sanctions that can be imposed on an attorney, as well as the type of misconduct that would be considered “serious” and “lesser” misconduct:
B. Serious Misconduct. Serious misconduct is conduct in violation of the Model Rules that would warrant a sanction terminating or restricting the lawyer’s license to practice law. Conduct will be considered serious misconduct if any of the following considerations apply:
(1)The misconduct involves the misappropriation of funds;
(2)The misconduct results in or is likely to result in substantial prejudice to a client or other person;
(3)The misconduct involves dishonesty, deceit, fraud, or misrepresentation by the lawyer;
(4)The misconduct is part of a pattern of similar misconduct;
(5)The lawyer’s prior record of public sanctions demonstrates a substantial disregard of the lawyer’s professional duties and responsibilities; or
(6)The misconduct constitutes a “Serious Crime” as defined in these Procedures.
C. Lesser Misconduct. Lesser misconduct is conduct in violation of the Model Rules that would not warrant a sanction terminating or restricting the lawyer’s license to practice law.
D. Types of Sanctions. Misconduct shall be grounds for one or more of the following sanctions:
(1) DISBARMENT: The termination of the lawyer’s privilege to practice law and removal of the lawyer’s name from the list of licensed attorneys.
(2) SUSPENSION: A limitation for a fixed period of time on the lawyer’s privilege to engage in the practice of law.
(3) INTERIM SUSPENSION: A temporary suspension for an indeterminate period of time of the lawyer’s privilege to engage in the practice of law pending the final adjudication of a disciplinary matter.
(4) REPRIMAND: A severe public censure issued against the lawyer.
(5) CAUTION: A public warning issued against the lawyer.
(6) WARNING: A nonpublic caution issued against the lawyer.
(7) PROBATION: Written conditions imposed for a fixed period of time, and with the lawyer’s consent.
liftArk. Sup. Ct. P. Regulating Profl Conduct § 17(B), (C), (D). The Committee has also adopted a penalty phase in which it will consider mitigating and aggravating factors in determining appropriate sanctions once a Panel finds that the rules have been violated. See Ligon v. Dunklin, 368 Ark. 443, 247 S.W.3d 498 (2007).
In the case at hand, the OPC claims that, under Section 17 of the Procedures Regulating Professional Conduct, Mr. Rees’s conduct warrants a stronger sanction and suggests a reprimand. Furthermore, the OPC asserts that the Committee should have taken into consideration aggravating factors. Specifically, he asks that the court consider the conduct of Mr. Rees with respect to his actions toward Judge Burnett in offering him a position with his firm. Judge Burnett testified at one of the hearings regarding this conduct. However, as Mr. Rees argues, during the sanction phase the OPC did not assert this conduct as an aggravating factor warranting a more substantial sanction. Therefore, it is now barred from raising this issue on appeal for the first time. To do so, would deny Mr. Rees an opportunity to introduce any mitigating factors that would warrant a lesser sanction.
Further, the Committee only found Mr. Rees in violation of Rule 1.8(e), which prohibits a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation. The Committee determined that the “caution” and $1000 fine were appropriate sanctions given the nature of Mr. Rees’s conduct. We do not find these sanctions inappropriate. Based on our review of the issues on appeal, we affirm the findings and sanctions of the Committee.
Affirmed.
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ELANA CUNNINGHAM WILLS, Justice.
|,This case is an appeal from a disciplinary action by the Supreme Court Committee on Professional Conduct (Committee) against attorney David Rees. The Committee’s Executive Director, Stark Ligón, brings this appeal from a February 23, 2009 order filed by Panel C of the Committee suspending Rees’s law license for thirty days upon a finding that he violated two provisions of the Arkansas Model Rules of Professional Conduct (Model Rules). In this appeal, Director Ligón raises four arguments for reversal or modification of the Panel’s order: (1) suspension of Rees’s law license for only thirty days was “not appropriately or proportionately substantial or severe for the overall misconduct proven”; (2) a finding of no violation of Model Rule 8.4(c) for Count H.l was clearly against the preponderance of the evidence; (3) a finding of no violation of Model Rule 8.4(c) for Count H.2 was clearly against the preponderance of the evidence; (4) a finding of no violation of Model Rule 1.6(d) for Count F.l was clearly against the preponderance of the evidence. We affirm the Panel’s border.
The formal charges of misconduct in this case arose from a complaint filed by Rees’s former client, Tom Papachristou, involving a fee dispute. Rees’s representation of Papachristou began after Papachristou was arrested and jailed in Crittenden County on March 18, 2004, for violating a protective order granted to his on-again, off-again companion and office manager, Kim Crockett. Papachristou paid a total of $29,500 for Rees’s representation in the protective-order matter in the form of a $27,500 check and $2,000 in cash. In May 2004, Papachristou also retained Rees’s services for his role as a target of an ongoing federal criminal investigation involving the illegal transfer of registration or serial numbers of jet aircraft engines. On May 26, 2004, Papachristou paid Rees a $125,000 retainer for representation in the federal criminal matter, followed by another check in the amount of $100,000 paid to Rees on May 31, 2004, to be held and used in the event that he was actually indicted and charged. Papachristou made additional payments for Rees’s representation in other business matters.
One such business matter involved a company called Omni Holding & Development Corporation (Omni). Attorney Kent Rubens of West Memphis originally represented Crockett in relation to various business interests she and Papachristou were engaged in, including Omni. On March 4, 2004, Joe Volpe, an Assistant United States Attorney (AUSA) for the Eastern District of Arkansas, mailed a letter to Rubens requesting an interview | ^between Crockett and FBI Special Agent John Hazen in connection with the federal criminal investigation “involving others including Ms. Crockett.” The letter stated “[a]t this time, our intention is not to prosecute Ms. Crockett given the information we have before us,” and that her “cooperation is her greatest opportunity to not be swept up in this criminal case.” A “Proffer Agreement” was attached to the letter providing Crockett with “use immunity” for any information she provided to federal agents or United States attorneys. Crockett, Rubens, and AUSA Volpe signed the immunity agreement on March 10, 2004.
In addition to the federal criminal investigation, Rubens represented Crockett in Papachristou’s aforementioned violation of her protective order on March 18, 2004. On May 7, 2004, the Crittenden County Circuit Court entered an “Agreed Order” in which Crockett and Papachristou, through their respective attorneys, Rubens and Thomas Young of the Rees Law Firm, dismissed the protective-order claim and converted the case to a paternity action.
On May 10, 2004, the circuit court entered a judgment and commitment order upon Papachristou’s guilty plea for the misdemeanor charge of violating Crockett’s protective order. According to Crockett’s March 1, 2007 affidavit, she terminated Rubens’s services as her attorney on May 27, 2004. Crockett stated that she made her decision to terminate Rubens as her counsel “[a]s a result of [] conversations” with Rees and Papachristou regarding the federal criminal investigation.
On June 1, 2004, AUSA Volpe sent a fax to Rubens, Rees, and another attorney at |4the Rees Law Firm, Joe Hughes, as well as another named Steven Farese, stating that Volpe had received telephone calls from each regarding Papachristou and Crockett, and “the investigation involving the removal of data plates from aircraft” in West Memphis. The fax expressed confusion over which attorneys currently represented Papachristou and Crockett, stating that
[ojriginally, Mr. Farese contacted me as Mr. Papachristou’s attorney. Later Mr. Rees stated he and Mr. Farese represented him. Mr. Rubens originally represented Ms. Crockett, but on May 27, 2004, Mr. Rees notified me that he now represents Ms. Crockett. On May 28, 2004, Mr. Hughes contacted me to inquire about Ms. Crockett.
The letter concluded with Volpe directing the attorneys to contact him in writing regarding the federal investigation in the future to “avoid any conflict or confusion.” Rees mailed a letter to AUSA Volpe on June 2, 2004, “to notify [Volpe] that I am representing Kim Crockett and Tom Papa-christou” and that Rubens was no longer Crockett’s counsel.
Rees mailed a letter to Rubens dated June 3, 2004, with a proposed order at tached that substituted Rees as Crockett’s counsel in a civil action involving Omni. Rubens signed the proposed order after receiving Rees’s letter on June 8, 2004. On June 28, 2004, Crockett, represented by attorney Joe Hughes, filed suit against Rubens in the Crittenden County Circuit Court for breach of fiduciary duty and the tort of outrage. Rubens denied Crockett’s allegations in his answer to the complaint filed on July 12, 2004, and moved for dismissal under Ark. R. Civ. P. 12(b)(6). The circuit court granted Crockett’s oral motion to nonsuit the action against Rubens on November 22, 2004.
(According to the Panel’s order in the interim between the filing and nonsuit of the complaint against Rubens, Rees went to the home Crockett shared with Papa-christou while Papaehristou was out of the county and an incident occurred that personally upset her. After Crockett related the incident to Papaehristou upon his return, they sent a letter dated October 13, 2004, to Rees stating that it was their “mutual and joint desire to terminate the attorney-client relationship between the Rees Law Firm, yourself, and us on an individual basis.” Additionally, the letter terminated Rees’s representation of either party regarding Omni, and specifically stated that Papaehristou did not want Rees to represent him “in any way” in the federal investigation or charges, and that Crockett did not want Rees to represent her “in any individual fashion,” including the action filed against Rubens. Further, Papaehristou requested that Rees “account to me for all funds which have been paid to you and provide me with a detailed accounting for time and expenses,” as well as “a complete refund of all unearned fees.” The letter closed with a notice that Rees was not to “contact us in person or by phone to discuss this matter further,” and if Rees had any questions he should direct them to Papachristou’s attorney, Paul Ford, or Crockett’s attorney, Thomas Fowler.
On October 14, 2004, Ford faxed a letter to Rees stating that his client Papaehristou had informed him that Rees attempted to contact Papaehristou by phone despite notification that all communication was to be with Ford. Ford referenced transfer of Papachristou’s files and Papachristou’s desire to receive an “accounting of funds paid, and a refund of any unearned retainer.” Ford sent a second fax to Rees on October 22, 2004, stating that because |fiRees had failed to provide the accounting and refund of unearned fees, Papaehristou would file an ethical complaint if Rees did not provide the accounting and refund within ten days.
Rees responded with a letter to Ford dated October 29, 2004, enclosing Papa-christou’s un-deposited $100,000 check with an attached document entitled “Accounting of Monies Received by Rees Law Firm RE: Tom Papaehristou.” The document listed a series of dates with payments by Papaehristou, amounts listed as “confirmed,” one amount listed as “sent for collection” and another a payment to “Mike Morgan Investigations,” and stated the total amount received from Papachris-tou as $172,000. Rees’s letter included an overview of his work on Papachristou’s behalf and statements that he would later detail certain costs and “a generalization, as specifically as I can be as to what activities I actually did for [Papaehristou].”
Director Ligón mailed a letter to Rees dated December 15, 2004, stating that Pa-pachristou had filed a complaint with the Committee on November 14, 2004, based on Rees’s failure to provide an accounting and refund of legal fees. Director Ligón wrote, “This letter is an informal attempt to see if this matter can be resolved between attorney and client without further consideration by this office.” Further, “[i]f I have heard nothing further from the complainant by February 1, 2005, I will assume the matter was satisfactorily resolved and I will probably close the file with no further action.” Attorney Arlon Woodruff, representing Rees, responded to Director Ligon’s December 15, 2004 letter with a “summary of events surrounding the representation” of Papachristou. The letter concluded by stating that, “We have no hesitancy in defending this matter” and that further examination would show that 17Papachristou’s complaint to the Committee “is not worthy of your time.”
On January 5, 2005, Papachristou filed a complaint against Rees and the Rees Law Firm in the Craighead County Circuit Court for breach of contract and fiduciary duty. The complaint alleged that Papa-christou and Rees entered into an unwritten “contractual arrangement” for Rees’s services in the federal criminal investigation, but that Rees’s subsequent representation of Crockett in the same investigation created a “conflict of interest that prohibited their proper representation.” Similarly, the complaint alleged that Rees breached his fiduciary duty by representing both Papachristou and Crockett — “an individual providing incriminating testimony to the government in the investigation for which [Rees] had been retained” — and by failing to refund legal fees. Further, the complaint alleged that Rees breached his fiduciary duty “with malice” by making knowingly false statements in “an effort to justify the refusal to refund the $125,000 paid by [Papachristou].” The parties settled the case and Papachristou dismissed the complaint in May 2006.
On April 26, 2007, Executive Director Ligón served Rees with an ethics complaint that alleged certain violations of the Model Rules, including Rules 1.7(a), 1.7(b), 8.4(c), and 1.16(d). Rees responded to the complaint on September 10, 2007, denying Director Ligon’s allegations. Both Papachristou and Crockett sent letters rebutting Rees’s response. Additionally, attorney Ford mailed a letter addressing various representations made by Rees in his response. Following a ballot vote by Panel A of the Committee, Panel C held public hearings on the matter on February 4 and 5, 2009. In its February 23, 2009 order, Panel C |8found that Rees violated Model Rules 1.7(a) and 1.7(b) and suspended his license for thirty days. Specifically, Panel C found that Rees violated Model Rule 1.7(a) as alleged in counts C.l and C.2 of the complaint, in that he represented both Papachristou and Crockett — clients with adverse interests — without explaining to Crockett the risks to her or obtaining her consent. Panel C found a violation of Model Rule 1.7(b) with regard to Count D.l of the complaint in that he undertook the representation of Crockett at a time when he already represented Papachristou, and Rees could not have reasonably believed that the representation would not be materially limited or adversely affected by his responsibilities to Papachristou. Panel C found no other violations of the Model Rules as alleged in the complaint. Director Ligón then filed this appeal.
The standard of review for an appeal from the Committee is as follows:
Pursuant to Section 12(B) of the Procedures [Regulating Professional Conduct], on appeal, this court carries out a dfe novo review on the record. A de novo review on the record determines whether the factual findings were clearly erroneous, or whether the result reached was arbitrary or groundless. Due deference is given to the Committee’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimo ny. However, conclusions of law are given no deference on appeal. The Committee’s findings of fact will not be reversed unless the findings are clearly erroneous, and the action taken by the Committee will be affirmed unless it is clearly against the preponderance of the evidence. Additionally, 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.
Stilley v. Supreme Court Comm. on Prof'l Conduct, 370 Ark. 294, 301, 259 S.W.3d 395, 399 (2007) (citations omitted).
For his first point on appeal, Director Ligón argues that Rees’s thirty-day suspension |9for serious misconduct was not “appropriate or proportionately substantial or severe for the overall misconduct proven.” In support of his argument, Director Ligón recites and emphasizes various evidence presented to the Committee, including Rees’s letter to AUSA Volpe confirming his representation of both Pa-pachristou and Crockett and Rees’s own deposition testimony, to the effect that the conflict “absolutely” benefitted Papachris-tou. Director Ligón contends that Rees’s dual representation of Papachristou and Crockett was undertaken to “control her” to benefit Papachristou, and that the dual-representation put Crockett at risk of losing her “vital federal immunity agreement.” Citing the examples of the disciplinary proceedings involving President William J. Clinton and attorney Richard Young, Director Ligón asserts that Rees’s serious misconduct merits a “lengthy suspension somewhere in the range” of those two cases. Director Ligón acknowledges that Panel C “rightly found” that Rees’s dual-representation of Papachristou and Crockett was a conflict of interest in violation of the Model Rules and serious misconduct warranting the sanction of suspension. However, he contends that Rees’s dual-representation of Papachristou and Crockett is “egregious” misconduct “demanding more than a minimal thirty (30) day license suspension.”
The Procedures Regulating Professional Conduct Section 17(B) and (C) (2004) defined misconduct as follows:
B. Serious Misconduct. Serious misconduct is conduct in violation of the Model Rules that would warrant a sanction terminating or restricting the lawyer’s license to practice 11(llaw. Conduct will be considered serious misconduct if any of the following considerations apply:
(1) The misconduct involves the misappropriation of funds;
(2) The misconduct results in or is likely to result in substantial prejudice to a client or other person;
(3) The misconduct involves dishonesty, deceit, fraud, or misrepresentation by the lawyer;
(4) The misconduct is part of a pattern of similar misconduct;
(5) The lawyer’s prior record of public sanctions demonstrates a substantial disregard of the lawyer’s professional duties and responsibilities; or
(6) The misconduct constitutes a “Serious Crime” as defined in these Procedures.
C. Lesser Misconduct. Lesser misconduct is conduct in violation of the Model Rules that would not warrant a sanction terminating or restricting the lawyer’s license to practice law.
Under Section 17(D)(1), the most severe sanction for misconduct is disbarment: “The termination of the lawyer’s privilege to practice law and removal of the lawyer’s name from the list of licensed attorneys.” After disbarment, the most severe sanction is suspension under Section 17(D)(2), limiting the attorney’s privilege to practice law for a fixed period of time.
By a unanimous vote, Panel C found that Rees’s dual-representation of Papa-christou and Crockett violated Model Rule 1.7(a) and (b). The applicable version of Model Rule 1.7 (2004) provided that
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients is undertaken, the consultation shall include explanation of the implication of the | T1 common representation and the advantages and risks involved.
Panel C found that Rees violated Model Rule 1.7(a) iii that, “after Kim Crockett was induced to terminate the services of her attorney, Mr. Rubens,” Rees failed to explain “the risk to her, and to any benefit or immunity she might otherwise enjoy for her cooperation under her Proffer Agreement” in the federal investigation of Papa-christou. Further, Rees failed to obtain Crockett’s “consent to the dual representation after any effective consultation with her on the conflict issue.” The Panel found that Rees’s “main interest in representing Kim Crockett was to benefit his other client, Tom Papachristou,” and that
[u]nder the circumstances, and given Rees’s experience as a criminal defense attorney, Rees could not have then reasonably believed that his existing representation of Tom Papachristou would not adversely affect his relationship with Kim Crockett as his new client in the same criminal investigation.
Similarly, the Panel found that Rees violated Model Rule 1.7(b), stating that
[ujnder the circumstances known to Mr. Rees at the time, and given his substantial experience as a criminal defense attorney, he could not have, at the time, reasonably believed his representation of Ms. Crockett would not be materially limited or adversely affected by his responsibilities to his existing client in the same matter, Tom Papachristou, Crockett’s long-time business partner and paramour.
The Panel’s findings that a preponderance of the evidence showed that Rees violated Model Rule 1.7(a) and (b) are not challenged by Director Ligón on appeal. Nor did Rees file a cross-appeal challenging the Panel’s findings and sanction. Under Section 17(E)(2) of the Procedures Regulating Professional Conduct, a panel of the Committee is authorized to “suspend the lawyer’s privilege to practice law for a fixed period of time not in excess of five (5) years.” Section 17(E)(2) further provides that, “[suspension is appropriate when a panel |12of the Committee finds that the lawyer has engaged in ‘serious misconduct’ and ... the nature and degree of such misconduct do not warrant disbarment.” Thus, the Panel’s sanction of a thirty-day suspension of Rees’s law license was within the range of sanctions for violations of the Model Rules.
Further, Rees argues that this court has rejected comparisons of sanctions imposed in other disciplinary cases, such as Director Ligón makes in urging imposition of a more lengthy suspension of Rees’s license to practice law. Rees cites Colvin v. Committee on Professional Conduct, 309 Ark. 592, 595, 832 S.W.2d 246, 247-48 (1992), where this court stated as follows:
Appellant recognizes that, upon a finding of a violation of a the Model Rules, the Committee may suspend him. He alternatively argues that, even if the Committee’s decision that he violated the rule is affirmed, it should be modified to conform to precedents established by the Committee. Without authority or convincing argument he asserts that the sanctions made public and published “in the larger state newspapers and the Arkansas Bar Journal” should be considered as precedent and applied to this case. The argument is without merit for a number of reasons. First, there is reason to question the validity of appellant’s statistics used in his argument because he uses statistics compiled from only August through October of 1989. Second, subject to certain exceptions, confidentiality of all communications, complaints, formal complaints, testimony, and evidence based upon a complaint is absolutely privileged. As a result, the facts of each Committee decision made public are not revealed or made known to this court for any consideration or determination of precedential value. Third, even if the statistics were valid, we have stated in the context of criminal law that we will not reduce or compare sentences that are imposed within statutory limits. In the civil context of damages awards, a comparison of awards made in other cases cannot be relied on as a measure of excessiveness. Thus, we reject the argument.
See also Clark v. Supreme Court Comm. on Prof'l Conduct, 320 Ark. 597, 601, 898 S.W.2d 446, 449 (1995) (stating that, “In Colvin, [ ] we noted that in the context of criminal law we will 11snot reduce or compare sentences that are imposed -within statutory limits,” and “that in the civil context of damage awards, a comparison of awards made in other cases cannot be relied on as a measure of excessiveness”; “[cjonsequently, because the Committee’s action was within the range of sanctions for a violation of a provision of the Model Rules, we affirmed the Committee’s decision.”).
Director Ligón responds in his reply brief by dismissing Colvin as “a case now almost twenty years old, and from an era when Committee sanctions were not readily available online to the public and attorneys as they have been since 2001.” Director Ligón, however fails to note that the Colvin court rejected the appellant’s use of limited examples for purposes of comparison and applied a criminal rule rejecting comparison of sentences where a sentence is “imposed within statutory limits.” Colvin, 309 Ark. at 595, 832 S.W.2d at 248. Here, Director Ligón supplied the examples of only two disciplinary cases, even though he states in his reply brief that the “body of attorney discipline case law, both from the Committee and from the Court, has expanded considerably since 1991, and now offers a more substantial basis for case comparison in search for the appropriate sanction in a new case.” Further, as noted above, the Panel’s sanction of Rees by suspending his law license for a fixed period of time is within the range of sanctions provided under the Procedures Regulating Professional Conduct.
Finally, Director Ligon points to the holding in Ligon v. Price, 360 Ark. 98, 113, 200 S.W.3d 417 (2004) in his attempt to distinguish Colvin and persuade this court to follow his [ comparison of outcomes in disciplinary proceedings to increase the length of Rees’s suspension. Director Li-gón claims that in Price, “this [e]ourt took the position that comparability and proportionality are appropriate inquires in attorney discipline cases.” In Price, this court rejected the appellant’s argument that the special judge failed to conduct a “comparability and proportionality analysis,” and noted that the special judge “effectively analyzed the thirty-five factors that lent themselves to consideration of comparability and proportionality.” Price, 360 Ark. at 114, 200 S.W.3d at 427. The court did not hold that “comparison and proportionality are appropriate” by looking to other disciplinary cases not involving that attorney as Director Ligón asserts. Instead, in responding to the appellant’s argument for “comparability and proportionality analy-ses,” the Price court simply noted that the appropriate factors under Section 17 of the Procedures were considered.
In sum, with regard to Director Ligon’s first point on appeal, the Panel’s findings were not clearly erroneous and the suspension of Rees’s law license for thirty days was within the range of sanctions for violations of the Model Rules.
For his second point on appeal, Director Ligón argues that Panel C’s unanimous determination that Rees did not violate Model Rule 8.4(c) as alleged in Count H.l of the complaint was clearly erroneous and against a preponderance of the evidence.
Under Model Rule 8.4(c) (2004), it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Director Ligón alleged as follows in Count H.l:
|iSOn March 24, 2004, you contracted in writing for the legal representation of Tom Papachristou on his matter in West Memphis municipal court for a fee of $15,000, to be earned at $150 per hour, and accepted a total of $29,500 from him or paid on his behalf by that date. On the same day you transferred $20,000 from your trust account to the firm account, where you already had deposited $2,000 paid in cash for Papachristou on March 23, 2004, for a total of $22,000 by then placed in your firm account. Since your firm could not possibly have earned in fees anywhere near the $22,000 you caused to be placed in your firm account from the retainer he paid you, you failed to hold property in your possession belonging at the time to Tom Papachristou in a trust account separate from your own funds. By taking as earned, and therefore yours, these funds from your trust account, you engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.
Former Rees Law Firm assistant Ashley McAnulty testified before the Panel that she filled in a “Rees Law Firm attorney client contract” dated March 24, 2004, for Papachristou’s representation in the protective order matter. The contract provided for a nonrefundable $15,000 retainer fee, and after the retainer fee was exhausted “by a credit set-off of $150 per hour,” Papachristou would be billed at an hourly rate of $150 per hour. McAnulty, however, also stated that “none of the attorneys” at the Rees Law Firm, including Rees himself, “ever charged by the hour.”
Cynthia Copeland Womble, office manager for the Rees Law Firm, testified be fore the Panel that Rees summoned her to pick up a check in connection with Papa-christou’s representation. Rees told her that $7500 of the $27,500 check was to be paid to investigator Mike Morgan and the remaining $20,000 “was for fee.” Womble testified that she deposited the check into the firm’s escrow account and then wrote checks to Morgan for $7500 and to the Rees Law Firm for $20,000. She also testified that the firm received $2000 in cash from Papachristou prior to the receipt of the $27,500 check, and that “it all relate[d] to a contract 11fifor $15,000.” Additionally, Womble testified that in her sixteen years working for Rees, she “never knew him to charge by the hour in a personal injury or criminal matter,” that she was “shocked” to see an hourly contract, and that “there was no time accounting system for the lawyers within the firm” that would provide for hourly billing.
In addition to Rees’s own testimony regarding his agreement to represent Papa-christou in the matter of the protective-order violation, Panel C considered the deposition testimony of an Arkansas criminal defense attorney with over twenty-five years of experience who testified that it is difficult to determine a reasonable fee in a criminal defense “because you don’t know how complicated the case is,” and that “I think any lawyer that bases his fee solely on an hourly rate is crazy.” The expert witness further testified that “[w]hen I receive a criminal fee ... [i]t is my rule of thumb that everything less than $80,000 goes in the operating [account], and the excess goes into the trust account.”
Although, there was conflicting evidence relating to Count H.l, under this court’s standard of review we give deference to the Committee’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. See Stilley, supra. The question of whether Rees’s conduct was dishonest, fraudulent, deceitful, or a misrepresentation involves the weight of the evidence and credibility of witnesses. Therefore, we are unable to say that the unanimous finding of the Panel that Rees did not violate Model Rule 8.4(c) as alleged in Count H.l was against the preponderance of the evidence, arbitrary, or groundless.
||7For his third point on appeal, Director Ligón similarly argues that Panel C’s unanimous determination that Rees did not violate Model Rule 8.4(c) as alleged in Count H.2 of the complaint was clearly erroneous and against a preponderance of the evidence. In Count H.2, Director Li-gón alleged that
[b]y claiming in October 2004 and thereafter that you owed Tom Papachristou no refund on the $125,000 in fees he paid you in May 2004, for your work on his federal criminal matter, when your documented work for him consists of a file containing only fifteen (15) sheets of paper, apparently only two letters on his behalf you wrote to the federal officials in the case, and several short telephone calls you had with Assistant United States Attorney Joe Volpe, you engaged in conduct involving dishonesty, fraud, deceit or misrepresentation with regard to your claimed effort in the matter and the portion of the $125,000 fee you had actually earned. Model Rule 8.4(c) requires that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
On appeal, Director Ligón asserts that Rees’s denial that he owed Papachristou any refund until the end of Papachristou’s suit to recover the fees was “stalling” and, therefore, a violation of Model Rule 8.4(c) as “conduct involving dishonesty, fraud, deceit, or misrepresentation.” Rees counters that there was a legitimate fee dispute over the amount of the unearned fees.
Here, Panel C considered Rees’s testimony that a legitimate fee dispute existed, including the problems involved with the representation of a difficult client who was often out of the country, hiring investigators and assembling a defense team, and the amount of time he spent working on Papachristou’s federal criminal investigation, apart from the documentary evidence cited by Director Ligón in Count H.2 of the complaint. Rees’s office manager testified that the firm received an “abnormal” amount of telephone calls from Papachris-tou — more than any other client in her sixteen years at the firm — and that Rees 11s“spent the majority of his time” on Papa-christou’s calls. Additionally, the Panel considered the testimony of an expert witness who opined that it was “not uncommon to gain no results” at the stage of the case of Papachristou’s federal criminal investigation when he dismissed Rees as his attorney, and that “[y]ou could spend a lot of time working on a case just learning about it ... but have zero to show for it other than you spent the labor.” Thus, as above, the unanimous finding of the Panel that Rees did not violate Model Rule 8.4(c) as alleged in Count H.2 was not against the preponderance of the evidence, arbitrary, or groundless.
For his fourth and final point, Director Ligón argues that Panel C’s finding that Rees did not violate Model Rule 1.16(d) as alleged in Count F.l of the complaint was clearly erroneous or against the preponderance of the evidence.
Model Rule 1.16(d) (2004) required that [u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
Count F.l of the complaint alleged that
Papachristou terminated your legal services in October 2004, and requested a refund of unearned fees he had paid you in his federal criminal matter. In October 2004, you informed him and his new counsel that he was not due any refund for the $125,000 advance fee he had paid you in May 2004 for future representation in a federal criminal investigation. In January 2005, Mr. Papachristou sued you for this amount. On the eve of trial in May 2006, you settled by paying Mr. Papachristou the full $125,000, plus more for another matter, totaling $140,000 in all.
|,¡¡On appeal, Director Ligón argues that Rees
stalled [Papachristou] for eighteen (18) months before settling with him on the eve of trial for practically the entire amount demanded. An attorney reasonably familiar with the Rules would have known of Model Rule 1.15(c) (2004) which states, “(c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interest. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.” Rees owed [Papachristou] a prompt, large refund of the undisputed portion of the $125,000. Unfortunately, Rees took the position that he disputed it all, as being earned by him, and clung to that position until he paid it all back in 2006.
To the extent that Director Ligón argues that Rees violated Model Rule 1.15(c) — or, violated Rule 1.16(d) by violating 1.15(c) — this argument is raised for the first time on appeal; thus, this court will not consider it. See, e.g., Stilley v. Supreme Court Comm. on Prof'l Conduct, 370 Ark. 294, 301, 259 S.W.3d 395, 399 (2007) (“A review of the hearing reveals that Stilley did not object to the brief not being part of the record nor did he attempt to have the brief made part of the record. It is an elementary principle of administrative law that an issue must be raised at the hearing below in order to be raised on appeal.”). Further, as discussed above, the Panel considered testimony, depositions, and affidavits regarding Rees’s representation of Papachristou and the fee dispute itself, and this court defers to the Committee’s determination of the credibility of the witnesses and the weight to be accorded to their testimony. Accordingly, the unanimous finding of the Panel that Rees did not violate Model Rule 1.16(d) is not clearly against the preponderance of the evidence, arbitrary, or groundless.
Finally, although Director Ligón raises several “aggravating factors” for our | ¡^consideration in addressing this appeal, he failed to raise these aggravating factors before the Panel; accordingly, we will not address them. See Stilley, supra.
Affirmed.
. This appeal is one of four involving Mr. Rees styled Ligon v. Rees, submitted to this court and handed down this same day. See docket numbers 09-555, 364 S.W.3d 19, 09-556, 364 S.W.3d 28, 09-560, 364 S.W.3d 1.
. This termination apparently occurred the day after Papachristou retained Rees in the federal investigation and paid Rees a $125,000 retainer fee.
. As did the Panel, we apply the version of the Model Rules and Procedures in effect at the time of Rees's conduct. See Sexton v. Supreme Court Comm. on Prof'l Conduct, 295 Ark. 141, 747 S.W.2d 94 (1988). | [
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JOHN B. ROBBINS, Judge.
|,This is an appeal by appellant, Misty Reed, regarding the termination of her parental rights to her two children, HR (a daughter born in 2008) and KR (a son born in 2005), entered by the Craighead County Circuit Court in November 2011. She argues that the order terminating her parental rights should be reversed because it was clearly erroneous for the trial court to conclude that termination of her rights was in her children’s best interest. Appellee Arkansas Department of Human Services (“DHS”) and the children’s attorney ad litem disagree with her, asserting that the termination order should be affirmed. We affirm.
We review termination of parental rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not 12be enforced to the detriment or destruction of the health and well-being of the child. Id. Grounds for termination of parental rights must be proved by clear and convincing evidence. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005); M.T. v. Ark. Dep’t of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). It must also be proved that termination of parental rights is in the children’s best interest. Smith v. Ark. Dep’t of Health & Human Servs., 100 Ark.App. 74, 264 S.W.3d 559 (2007). Clear and con vincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). When the burden of proving a disputed fact is by clear and convincing evidence, the appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). We give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id. Where there are inconsistencies in the testimony presented at a termination hearing, the resolution of those inconsistencies is best left to the trial judge, who heard and observed those witnesses first-hand. Dinkins, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. We are not left with such a conviction in this instance.
Appellant argues that the trial court clearly erred in determining that termination of parental rights was in her children’s best interest. The best-interest inquiry requires consideration of two factors: the likelihood of adoption and the potential of harm to the | ¡¡children if returned to their mother’s custody. Tucker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 430, 389 S.W.3d 1. However, those factors that must be taken into consider ation do not, themselves, have to be supported by clear and convincing evidence. Id. Potential harm must be viewed in a forward-looking manner and in broad terms. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. Appellant asserts that the evidence was severely lacking on both of these factors, rendering the best-interest finding reversible. We disagree with her.
These children were taken from appellant’s custody in July 2009 and were determined to be dependent-neglected in November 2009. The basis for removal was the allegation that appellant sexually abused her then-stepchildren. The allegation of sexual abuse was determined to be true for purposes of the adjudication. Appellant was ordered to comply with the case plan, including that she maintain a clean, safe, stable home; that she obtain and keep stable employment in order to support herself and the children; that she submit to a psycho-sexual assessment; that she take parenting classes; and that she visit her children as permitted. Over the next several months, appellant was determined to have complied with the case-plan requirements in many respects. The allegation of sexual abuse was later determined to be unfounded for purposes of having her name placed on the child-abuse registry, but even so, appellant demonstrated instability that prevented the return of her children.
14At the fifteen-month review hearing in October 2010, the goal was changed from reunification to termination of parental rights. DHS filed a petition to terminate parental rights in January 2011, which was heard in April and June 2011.
The evidence revealed several undisputed facts during DHS’s nearly two-year involvement with appellant and her children, those being that (1) appellant divorced the father of these children in September 2009, shortly after the children came into DHS custody in July 2009; (2) she became engaged to a man who was charged with, and later pleaded guilty to, three counts of rape; (3) after her fiancé was sentenced to life in prison in November 2010, she began residing with another man whose father was a convicted child molester; (4) appellant lived with her new boyfriend in a rent house provided by the farmer who employed her new boyfriend; and (5) appellant had no home of her own, no proof to substantiate that she held a stable job, and no proof that her income would be sufficient to support herself or her children.
Appellant explained that although she moved around a lot, she continually had a suitable place for her children to rejoin her. Appellant stated that she had been employed for about six months, working for a family member who owned a fishing-lure company, and was currently making about $500 per week. Appellant did not have a checking account and did not provide any pay stubs to document these wages, although she acknowledged a duty to provide such evidence to DHS. Appellant testified that she was bonded to her children and that they loved her too. Appellant contended that she could get along with her ex-husband when it came to their children’s needs, even though he was abusive to her during their |smarriage. She said that her prior fiancé was in prison for rape and that she finally was in a stable relationship with a man she and her family had known for years.
The family case worker, Amber Phillips, testified that appellant was cooperative but that it was difficult to find her at any of the residential addresses she gave. Ms. Phillips said that appellant provided pay stubs from “seasonal work” in March, April, June, and July 2010, totaling approximately $1000, but nothing more recent than that despite requests for such evidence. Ms. Phillips believed appellant’s supervised visits with her children went well, and she completed parenting classes and a psychological evaluation, but there were never any trial placements attempted during the case. She opined that the children were healthy overall, although KR was taking medication for ADHD and HR had exhibited some behavior issues at school. She believed that their ages made them adoptable. Ms. Phillips questioned appellant’s judgment regarding relationships and appellant’s lack of stable housing and income, adding concern that there was a “true” finding of sexual abuse by appellant’s older son (who lived with appellant’s mother) against HR. This led to Ms. Phillips’s opinion that there was potential harm to the children if returned to their mother’s care.
The DHS supervisor, Terry Blanchard, testified to her opinion that these young children were adoptable, that their adoption packets were done, and that the children had some issues but not medical ones, pointing to some behaviors that were being addressed in counseling. Ms. Blanchard said that she had worked on many of these kinds of cases, and she would not give a recommendation that there was “a very high chance” of adoption if it were | finot so. She added that potential adoptive homes had not been sought out because their parents’ parental rights had not yet been terminated.
A CASA volunteer, Shirley Cato, testified about her experience with appellant and the children. Ms. Cato said she visited appellant at several residences, including an unfurnished and unclean trailer in Paragould, a home in Bay with her later-convicted fiancé, and a trailer near Lake City. She noted that the children had “come a long way” in the care of their foster parents, although the children were bonded to their mother and expressed a desire to reunite with her.
Appellant’s mother, Donna Felton, testified that her daughter was a good mother and that she should have her kids back in her custody. Ms. Felton agreed that she was raising appellant’s twelve-year-old son, whom appellant had at age sixteen, and that her daughter had some issues with transient housing and work, but she maintained that appellant was ready to have her children back.
Appellant, a woman in her late twenties, testified that she had an abusive relationship with these children’s father, but they were divorced, her next boyfriend was sent to jail and out of their lives, and her current boyfriend was an appropriate person to be around her children. Appellant said that her boyfriend’s father, who had a conviction for sexual abuse, was never around her children, nor would she permit him to be. She said she had done all that DHS asked of her, there were no drug or alcohol issues, she loved her children and they were bonded to her, and it was time for her eight- and six-year-old children to be returned to her custody.
|7In conclusion, the attorney ad litem and the attorney for DHS urged termination of parental rights, primarily based upon appellant’s instability and the children’s need for permanency. After consideration of the evidence presented over two hearing dates, the trial court concluded that the preceding events, and appellant’s lack of credibility, supported termination of her parental rights. The trial court found that the children had a “high likelihood” of adoption, supported by the testimony from DHS personnel who stated that the children were young and not disadvantaged by medical or serious behavioral problems. The trial court found that appellant’s lack of her own home and steady employment evidenced potential harm.
On appeal, appellant does not contest that grounds were proved; rather, she contends that her children’s best interest was not supported by evidence that her children were likely to be adopted or that she posed any potential harm to their well being. We disagree.
The trial court undoubtedly gave consideration to the likelihood of these children being adopted. Although DHS had not moved forward with adoption, given that parental rights had not been terminated, the paperwork was ready, and the opinions of the DHS supervisor and the case worker assigned to this case were taken into consideration. The trial court, given its knowledge of these children throughout the case, believed it highly likely that these children would be adopted. The applicable statute, Ark.Code Ann. § 9-27-841(b)(3) (Repl.2009), does not require the trial court to identify a particular potential adoptive home or find that the children will likely be adopted. See Anderson v. Ark Dep’t of Human Servs., 2011 Ark. App. 526, 385 S.W.3d 373; Fortenberry v. Ark Dep’t of Human Servs., 2009 Ark. App. 352, 2009 WL 1153256. On de novo review, we cannot conclude that the trial court failed to meet the statutory requirement to consider the likelihood of adoption.
As to potential harm, the trial court did not clearly err. This factor is to be considered in broad terms, in a forward-looking manner, and here the potential harm was evident. Appellant did not demonstrate that she was able to provide a stable home or sufficient income. The trial court found her credibility wholly lacking. Appellant did not demonstrate appropriate decision-making regarding her relationships and roommates. The potential for harm to the children was considered, particularly so where appellant does not contest the proof of grounds to support termination of her rights.
We hold that the trial court did not clearly err in finding that termination of appellant’s parental rights was in the best interest of HR and KR.
Affirmed.
GLADWIN and GRUBER, JJ., agree.
. The children’s father, Leonard Reed, does not appeal the termination of his parental rights. | [
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ROBERT J. GLADWIN, Judge.
| Appellant Antonio Hunt appeals his May 27, 2009 conviction by a Lonoke County Circuit Court jury on charges of residential burglary and theft of property, for which he was sentenced as an habitual offender to two thirty-year terms of imprisonment in the Arkansas Department of Correction to be run consecutively. On appeal, appellant challenges the sufficiency of the evidence to support the conviction. We affirm.
Facts
On January 12, 2009, Michael Krablin returned to his house in Lonoke County at approximately 4:20 p.m. and discovered that his house had been burglarized. The perpetrators forcibly entered the residence, caused significant damage to the interior of the house, and stole a Nintendo Wii game system and various accessories, CDs, DVDs, a video camera, and a fireproof safe containing various documents including vehicle titles, tax papers, |?social-seeurity cards, bank statements, and a marriage license. Mr. Krablin telephoned authorities, and Deputy Jared Turner from the Lonoke County Sheriffs Office responded at approximately 4:45 p.m. While there, Deputy Turner received a call from Deputy Dale Sipes of the Pulaski County Sheriffs Office, at which time he was informed that officers had caught the perpetrators and located some of the stolen items. Deputy Turner and Mr. Krablin drove to the reported location where they found all the electronic equipment as well as the safe. The perpetrators had broken into the safe and were in the process of burning the papers when they were apprehended. Mr. Krablin was able to identify the papers because the names still could be made out on some of them.
Pulaski County deputies detained the three male individuals, including appellant, on a dead-end road in the McAlmont area of Little Rock, Arkansas, at approximately 5:09 p.m. They noticed a car parked at the end of the street, with two males standing outside the car near a fire, and appellant sitting in the driver’s seat of the vehicle. The fire was near an open safe and was being used to burn the various documents taken from Mr. Krablin’s house. All the other stolen items were located inside the vehicle in which appellant was sitting.
Upon returning the stolen items to Mr. Krablin later the same evening, Deputy Turner discovered a videotape in the video camera that appeared to be footage that was shot from the perpetrators’ vehicle of a direct route from Mr. Krablin’s house to the McAlmont area where the items and perpetrators were apprehended. The date and time on the video corresponded with the date and approximate time that the break-in occurred; however, none of the | .^individuals arrested were seen on the video footage. Deputy Turner kept the videotape as possible evidence.
Captain Steve Finch of the Lonoke County Sheriffs Department processed appellant on January 14, 2009, including Mirandizing and interviewing him. Captain Finch showed appellant the video recording, and appellant acknowledged that it was his voice that was heard on the audio portion of the tape. He also indicated that he had driven the car to the Krab-lin residence and that the other two individuals went inside the house and brought the items that were stolen back to the car. He also acknowledged that after the items had been put into the car, the three of them drove to the McAlmont area where they were eventually apprehended. The interview, which lasted approximately forty minutes, was not recorded by Captain Finch. Prior to the interview with Captain Finch, appellant made a contradictory statement to law-enforcement officials, indicating that he had obtained the stolen property by purchasing it from someone.
The State filed a criminal information on February 4, 2009, alleging that appellant committed the offense of residential burglary, a Class B felony, in violation of Arkansas Code Annotated section 5-89-201 (Repl.2006), theft of property of $2,500 or more, a Class B felony, in violation of Arkansas Code Annotated section 5-36-103 (Repl.2006), and that he was subject to a sentence enhancement as an habitual offender, pursuant to Arkansas Code Annotated section 5-4-501 (Repl.2006).
|4A jury trial was held on May 27, 2009, at which time Mr. Krablin, Deputy Sipes, Deputy Turner, and Captain Finch testified for the State. After the State rested, appellant’s counsel moved for a directed verdict, arguing that the State failed to present sufficient evidence to prove that he was actually an accomplice and aided anyone else in the burglary or that he actually entered the residence with the purpose of committing an offense punishable by imprisonment. The circuit court denied the motion. The defense rested without presenting any additional evidence and renewed the motion for directed verdict. The motion was again denied. The jury returned guilty verdicts on both charges, and the resulting judgment and commitment order was filed on May 27, 2009. Appellant filed a timely notice of appeal on June 24, 2009, and this appeal followed.
Standard of Review
A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion, and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id.
Weighing the evidence and assessing the credibility of the witnesses are matters for the fact-finder. Bush v. State, 90 Ark.App. 373, 206 S.W.3d 268 (2005). The jury is free to | r,believe all or part of any witness’s testimony and resolves questions of conflicting testimony and inconsistent evidence. See Gikonyo v. State, 102 Ark.App. 223, 283 S.W.3d 631 (2008). Reconciling conflicts in the testimony and weighing the evidence are matters within the exclusive province of the jury. See Mitchem v. State, 96 Ark.App. 78, 238 S.W.3d 623 (2006).
Discussion
Arkansas Code Annotated section 5-39-201(a)(1) provides that a person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment. Arkansas Code Annotated section 5-36-103(a)(l) provides that a person commits theft of property if he or she knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner of the property-
Appellant does not dispute that Mr. Krablin’s residence was burglarized or that property was taken from it. Instead, he asserts that the evidence is insufficient to prove that he acted as an accomplice to the burglary and theft. Arkansas Code Annotated section- 5-2-402(2) (Repl.2006) covers liability for another’s conduct, and provides that a person is criminally liable for the conduct of another person if the person is an accomplice of another person in the commission of an offense. He references Arkansas Code Annotated section 5-2-403(a) (Repl.2006), which defines “accomplice” as follows:
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, the person:
|fi(l) Solicits, advises, encourages, or coerces the other person to commit the offense;
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing the offense; or
(3) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to prevent the commission of the offense.
See also Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007) (holding that when two people assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both). Appellant submits that in order for him to be an accomplice, he must take some part, perform some act, or owe some duty to the person in danger that makes it incumbent on him to prevent the commission of the crime. See Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70. Mere presence, acquiescence, or silence, in the absence of the duty to act, is not enough, however reprehensible it may be, to constitute one an accomplice. Id.
Appellant argues that there is simply not enough evidence to support a finding that he committed the crimes of residential burglary and theft of property. He claims that there is no evidence that he ever entered the Krablin residence, and he asserts that simply being found in possession of the stolen property is not sufficient to establish that he committed either burglary or theft of property. Additionally, he maintains that there is no evidence that he ever acted with the purpose of promoting or facilitating the offenses of residential burglary or theft as required for accomplice liability.
With regard to the statement he made to Captain Finch two days after the incident, appellant claims that he merely stated that he was driving the vehicle when his passengers 17entered the Krablin residence. Again, he contends that his mere presence is insufficient to support the convictions for residential burglary and theft of property.
We disagree and hold that appellant’s argument is without merit. When viewed in the light most favorable to the State, the evidence presented at trial established the following: (1) appellant admitted that he drove the other two individuals to the Krablin house on the date of the burglary; (2) appellant acknowledged that he remained in the car while the other two men entered the house and then returned to the car with a video camera, a safe, numerous DVDs and CDs, and a Wii gaming system and accessories; (3) appellant admitted to driving with the other two individuals, and the stolen items, from Lonoke County back to Pulaski County, where they were apprehended in possession of the stolen items.
Although appellant contends that his statement to Captain Finch is not persuasive because it was not recorded and because he only admitted to being present at the time the other two individuals entered the residence, we note that appellant also admitted to being present when those individuals brought the stolen items back to the vehicle and to driving back to Pulaski County with the individuals and the stolen goods. Captain Finch also testified that appellant acknowledged that it was his voice on the audio portion of the recording, although the State acknowledges that the recording was actually played for the jury without sound.
Testimony from the other law-enforcement officers established that very shortly after the burglary occurred, appellant and two other individuals were apprehended by police in or 18near a car with all the items that had been stolen. The stolen video camera had been used to film a “back roads” route from the Krabliris residence to the site where appellant, the vehicle, and the stolen property were found. Deputy Turner specifically testified that the car in the videotape was the same one in which appellant and the stolen property had been found and that the date and time on the recording corresponded with the date and time of the burglary and theft.
It is beyond question that the jury was free to consider appellant’s confession, through the testimony of Captain Finch, and give it whatever weight they felt was appropriate. Leach v. State, 38 Ark.App. 117, 831 S.W.2d 615 (1992). Moreover, the presence of an accused in the proximity of a crime, opportunity, and association with a person — or persons— involved in a crime in a manner suggestive of joint participation are relevant factors in determining the connection of an accomplice with the crime. Westbrook v. State, 2009 Ark.App. 723, 2009 WL 3644215. Additionally, possession of recently stolen property coupled with proof of an accused’s proximity to the crime constitutes substantial evidence of the crime of burglary. Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992) (holding that possession of stolen property is proper circumstance to consider in determining whether there was evidence tending to connect defendant with crimes of burglary and grand larceny)-
The State maintains that appellant’s admission that he drove to Mr. Krablin’s house, was present when his accomplices entered the house and returned to the car with stolen property is, standing alone, sufficient evidence of his guilt. When coupled with his possession of all of the stolen goods at a time almost immediately after the burglary and in an area in Rclose proximity to the burglary, it is apparent that the .circuit court committed no error in denying appellant’s motion for directed verdict. Accordingly, we affirm.
Affirmed.
BROWN, J., agrees.
HART, J., concurs. | [
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JOHN B. ROBBINS, Judge.
| Appellant Ressie Brooks contends that the trial court erred in granting summary judgment to appellee First State Bank on her complaint for malicious prosecution and abuse of process. This suit arose after the bank permitted Brooks to withdraw funds from a check Brooks had deposited into her savings account that turned out to be counterfeit. The bank wanted Brooks to repay but she refused. This was reported to the police, which led to the prosecutor filing theft charges that were ultimately dismissed with a minimal restitution order. Brooks sued the bank for its conduct, but after consideration of the bank’s motion for summary judgment, the trial court dismissed her complaint. This appeal resulted. We affirm.
| gSummary judgment is regarded simply as one of the tools in a trial court’s efficiency arsenal; however, the granting of the motion is only approved when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admission on file is such that there is no genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). The object of summary judgment proceedings is not to try the issues, but to determine if there are any issues to be tried. Rowland v. Gastroenterology Assoc., P.A., 280 Ark. 278, 657 S.W.2d 536 (1983).
In this instance, the material facts are not in dispute but rather the inferences to be drawn from those facts. We describe them here in more detail. A bogus company communicated news to Brooks that she had won a $50,000 sweepstakes prize. She was instructed that a check representing a partial payment of $2270 would be sent to her, and she should cash the check and remit the funds back for payment of fees and taxes due on her prize money. Brooks acted on these instructions. She received a $2270 check drawn on an out-of-state bank and deposited it into her savings account at First State Bank on December 20, 2005. The bank informed her that the funds would not be available to be withdrawn for five business days. She returned to the bank and withdrew these funds on December 28. Brooks [¡¡promptly wired $2100 back to the sweepstakes company, at an expense to her of $129. On or about January 1, the bank received the returned check, which was determined to be counterfeit.
In the meantime, Brooks realized she had been scammed, so on January 3, 2006, she went back to the bank to determine what happened with the check. The bank informed her the check was no good and it sought to recoup the funds from her. Detective Brian Williams of the Conway Police Department had been summoned to the bank, so he was present when Brooks was informed of the problem. Brooks explained her situation, that she had been scammed and that she did not have the money. The bank and Williams insisted that Brooks was responsible for repay ment. The bank suggested that she enter into a loan agreement with them to pay it back over time. The bank offered to prepare loan documents for her to come back to execute the next day.
Brooks left the bank and sought legal advice; she was informed that the mistake was the bank’s, not hers. So, she did not enter into a repayment agreement. On January 30, 2006, the bank reported this to Williams, who proceeded to investigate the matter. Williams consulted with the prosecuting attorney, who believed this constituted theft. An arrest warrant was prepared. Brooks was arrested on January 31, 2006, jailed overnight in the city jail, and then bonded out. No one told Brooks that she had to pay the bank to make the charges go away. But, seven months later, on September 7, 2006, the charge was nol prossed |4with a restitution order of $41 to be paid within thirty days to the county sheriff to benefit the bank.
Brooks filed her civil complaint shortly thereafter alleging malicious prosecution and abuse of process. In her complaint, she contended that the bank controlled the criminal investigation; that it knew or should have known that it failed in its duty of ordinary care in presentation and payment of the check; that it used the criminal process to coerce her to pay for its own error; that these acts were outrageous and designed to make her suffer anguish, humiliation, and monetary loss; and that these acts rose to the level of malicious prosecution and abuse of process. The bank answered her complaint denying all detrimental allegations, and it also asserted that it was immune from suit under a safe-harbor provision of federal law concerning the reporting responsibilities of financial institutions.
After discovery was well underway, the bank filed a motion for summary judgment contending that the prosecutor acted independently in deciding to file charges and later dismiss the charge with a restitution order of $41; that the prosecution was solely directed by the prosecutor; that Brooks’s allegations did not rise to the level to support her causes of action, viewing the evidence in her favor; and that the bank was immune from liability under its duty to report suspicious financial activity. The bank attached the affidavit of the prosecutor to support those assertions. Brooks responded that the bank did more than basic reporting of suspicious activity and that it was an active participant in making sure she was arrested with the goal of forcing her to pay for its mistake. The judge took the matter under | ^advisement, considering several cases cited by the parties, and rendered judgment in favor of the bank. The judge deemed the evidence to indicate only a routine investigation.
We are left to decide whether the state of the evidence was such that Brooks did not present a prima facie case of malicious prosecution or abuse of process. We will discuss the causes of action in order.
In order to establish a claim for malicious prosecution, a plaintiff must prove the following five elements: (1) a proceeding instituted or continued by the defendant against the plaintiff; (2) termination of the proceeding in favor of the plaintiff; (3) absence of probable cause for the proceeding; (4) malice on the part of the defendant; and (5) damages. South Ark. Petroleum Co. v. Schiesser, 343 Ark. 492, 36 S.W.3d 317 (2001); McLaughlin v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996); Burkett v. Burkett, 95 Ark.App. 314, 236 S.W.3d 563 (2006). In the context of malicious prosecution, probable cause means such a state of facts or credible information that would induce an ordinarily cautious person to believe that the accused is guilty of the crime for which he is charged. Harold McLaughlin Reliable Truck Brokers, Inc. v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996); Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989).
It is important to consider for each allegation that federal law, 31 U.S.C. § 5318, provides that financial institutions are to report “any possible violation of law or regulation” and are immune from liability in doing so. Bank of Eureka Springs v. Evans, 353 Ark. 438, 109 S.W.3d 672 (2003). Arkansas has determined that this law is to be broadly interpreted but |finot to the extent that it gives banks such blanket immunity that even malicious, willful criminal and civil violations of law are protected. Id. For example, the Act does not provide protection for banks that pursue personal vendettas against delinquent borrowers. Id. A bank cannot shift responsibility to the prosecutor if it supplies the prosecutor with inaccurate information. Id. The Act requires there to be a “possible” violation of law before a financial institution can claim protection of the statute. Id. Thus, malice may be inferred from the lack of probable cause. See Wal-Mart Stores, Inc. v. Thomas, 76 Ark.App. 33, 61 S.W.3d 844 (2001).
Here, there was no allegation that the bank provided false information about Brooks. The bank believed she had an obligation to pay the money back, whereas she did not have that same belief. So, was there probable cause to believe Brooks wrongfully retained the bank’s money constituting theft? We believe so.
Brooks was charged with theft of property, which would require the State to prove that she knowingly took or exercised unauthorized control over, or made an unauthorized transfer of an interest in, the bank’s property with the purpose to deprive the owner of its property. Ark.Code Ann. § 5-36-103 (Repl.2006). While she did not bear any criminal intent when she deposited the check and withdrew the funds, she later realized that it was probably a fake and decidedly refused to repay the original owner, the bank, when the check was discovered to indeed be counterfeit.
[7When the defendant makes a full, fair, and truthful disclosure of all facts known to him to competent counsel (or the prosecuting attorney) and then acts bona fide upon such advice, then this will be a good defense to a claim of malicious prosecution. South Ark. Petroleum Co. v. Schiesser, supra; Kellerman v. Zeno, 64 Ark.App. 79, 983 S.W.2d 136 (1998). Here, the bank reasonably believed that it was owed the money from Brooks, even if she was misled to acquire the funds. The bank conveyed that information, and the prosecutor acted upon it in filing charges. Because there was probable cause to believe Brooks committed a theft of some kind when she refused to return the funds, her cause of action for malicious prosecution could not survive summary judgment. We need not discuss the other elements of malicious prosecution because failure of one element renders her case defunct.
Moving to the allegation of abuse of process, Brooks had to establish the following elements: (1) a legal procedure set in motion in proper form, even with probable cause and ultimate success; (2) the procedure is perverted to accomplish an ulterior purpose for which it was not designed; and (3) a willful act is perpetrated in the use of process which is not proper in the regular conduct of the proceeding. Schiesser, supra. The test of abuse of process is whether a judicial process is used to extort or coerce. Routh Wrecker Serv., Inc. v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998). The key to the tort is the improper use |8of process after its issuance to accomplish a purpose for which the process was not designed. Harmon v. Carco Carriage Corp., 320 Ark. 322, 895 S.W.2d 938 (1995). Thus, it is the purpose for which the process is used, once issued, that is important in reaching a conclusion. Sundeen, supra. Abuse of process is a narrow tort. Union Nat’l Bank of Little Rock v. Kutait, 312 Ark. 14, 846 S.W.2d 652 (1993). A “vexatious” lawsuit is not enough; indeed, abuse of process is more difficult to prove when the action is based upon probable cause. Id.
Here, viewing the evidence in the light most favorable to Brooks, after she was arrested, she was not told by anyone that she had to pay the money back to the bank. The only contact from the bank she thought happened post-arrest was one phone call from a lady at the bank who told her she could still repay the bank’s money, “if you like.” Brooks did not allege that any bank representative threatened or harassed her for the money, nor did she recall anyone but the judge ordering her to repay the bank $41 when her case was dismissed. She had no recollection of how or why the dismissal happened.
When a party cannot present proof on an essential element of her claim, there is no remaining genuine issue of material fact, and the party moving for a summary judgment is entitled to judgment as a matter of law. Eady v. Lansford, 351 Ark. 249, 92 S.W.3d 57 (2002); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988). In this case, Brooks offered no proof whatsoever of any coercive actions or efforts to extort by the bank. Considering that abuse of process is a narrow tort, and neither coercion or extortion is a ^reasonable inference to be drawn from the one phone call after her arrest, we affirm the trial court’s decision to grant the bank’s motion for summary judgment. Compare Sundeen, supra.
In sum, we affirm the trial judge’s grant of summary judgment on both malicious prosecution and abuse of process.
HART and Henry, JJ., agree.
. The trial court also dismissed her claim for outrage on summary judgment. She does not appeal that part of the dismissal, so our opinion will be limited to discussion related to the remaining allegations.
. For example, the entry of a nolle prosequi is a sufficiently favorable termination of a proceeding in favor of the accused, see Crockett Motor Sales, Inc. v. London, 283 Ark. 106, 671 S.W.2d 187 (1984), but it is not, standing alone, evidence that probable cause was lacking. Sundeen v. Kroger, 355 Ark. 138, 133 S.W.3d 393 (2003). The parties disagree about whether Brooks received a' favorable termination because while the charge was dismissed, it was accompanied by an order to pay restitution. We need not, and do not, answer this question. | [
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LARRY D. VAUGHT, Chief Judge.
| ¶ Danielle Wood appeals the decision of the Arkansas Workers’ Compensation Commission finding that she failed to prove that she sustained a compensable injury to her left knee when she slipped and fell at work.. She contends that there is a lack of substantial evidence supporting the Commission’s decision that she was not performing employment services at the time of her fall. We agree and reverse and remand for an award of benefits.
There is no dispute about the relevant facts. Wood was employed by appellee Wendy’s Old Fashioned Hamburgers (Wendy’s) as a crew trainer. On January 29, 2008, she worked a full shift and left around 4:00 p.m. She received a call asking her to return to work at 5:00 p.m., which she did. At 8:00 p.m., when her second shift ended, Wood clocked out at the cash register, then turned to exit the restaurant through the rear door by walking through the food-preparation and kitchen areas. (Wood testified that all Wendy’s employees were required |?to enter and exit through the rear door.) She took two to three steps toward the exit and encountered her good friend and co-manager Delilah Stroud, who was leaning against the Frosty machine. As she walked by Stroud, Wood leaned over (still facing her exit pathway) and used her right arm to give Stroud a one-armed hug. Stroud reciprocated with her left arm. After the hug, Wood stepped away to leave and immediately fell. As a result of the fall, Wood injured her knee, which required surgery and physical therapy.
Matthew Jackson, also a Wendy’s employee, witnessed Wood’s fall. He was standing at the cash register when Wood walked by him toward the exit of the restaurant. As she departed, he saw her pause for a second “just to give [Stroud] a hug bye.” According to Jackson, Wood did not face Stroud or go out of her way to hug Stroud. At one point he stated that Wood may have changed her footwork in order to hug Stroud, but he later testified that he was not sure. Jackson said that as soon as Wood let go of Stroud, Wood fell.
Jackson also corroborated Wood’s testimony that Wendy’s employees were required to clock out at the register at the end of their shifts and that they were instructed to enter and exit the rear door. He estimated that the width of the walkway between the sandwich-preparation area and the Frosty machine was less than two feet. He confirmed that in order for Wood to exit the restaurant, she had to walk by Stroud. He further testified, as did Wood, that there were occasions where employees were asked to perform work for Wendy’s after clocking out, but that on the date in question, Wood had not been assigned any such duties.
| sThe administrative law judge found that Wendy’s employees were required to enter and exit the rear door of the restaurant; that prior to the hug, Wood was performing employment services by exiting at the point mandated by her employer; and that the hug had ended when Wood fell. However, the ALJ further found that the hug was a deviation and that Wood
had not resumed her journey to depart the premises.... She had stepped back from Stroud to pivot to continue through the kitchen when she fell. [Wood] was thus not “back on the beam,” but was instead still on the deviation. Hence, she was not performing employment services at the crucial point.
Accordingly, the ALJ found that Wood failed to prove that her fall occurred within the course and scope of her employment and denied her claim. The Commission affirmed and adopted the ALJ’s opinion, and Wood timely appealed. The primary issue presented on appeal is whether Wood was performing employment services at the time of her injury.
In appeals involving claims for workers’ compensation, we view the evidence in a light most favorable to the Commission’s decision and affirm that decision if it is supported by substantial evidence. Texarkana Sch. Dist. v. Conner, 878 Ark. 372, 375, 284 S.W.3d 57, 60 (2008). Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Id. at 375, 284 S.W.3d at 60. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission. Id., 284 S.W.3d at 60. If so, the appellate court must affirm the Commission’s decision. Id., 284 S.W.3d at 60.
Act 796 of 1993 significantly changed the workers’ compensation statutes and .the way |4workers’ compensation claims are to be resolved. Id. at 376, 284 S.W.3d at 60. Pursuant to Act 796, we are required to strictly construe the workers’ compensation statutes. Id., 284 S.W.3d at 60 (citing Ark.Code Ann. § 11-9-704(c)(3) (Repl. 2002)). Act 796 defines a compensable injury as “[a]n accidental injury ... arising out of and in the course of employment.” Ark.Code Ann. §. 11-9-102(4)(A)(i) (Supp.2009). A compensable injury does not include an “[ijnjury which was inflicted upon the employee at a time when employment services were not being performed.” Ark.Code Ann. § 11 — 9—102(4)(B)(iii) (Supp. 2009). Act 796 fails, however, to define the phrase “in the course of employment” or the term “employment services.” Texarkana Sch. Dist., 373 Ark. at 376, 284 S.W.3d at 61. Thus, it falls to the court to define these terms in a manner that neither broadens nor narrows the scope of Act 796. Id., 284 S.W.3d at 61.
Our supreme court has held that an employee is performing “employment services” when he or she “is doing something that is generally required by his or her employer.” Texarkana Sch. Dist., 373 Ark. at 376, 284 S.W.3d at 61. We use the same test to determine whether an employee was performing employment services as we do when determining whether an employee was acting within the course of employment. Id., 284 S.W.3d at 61. Specifically, it has been held that the test is whether the injury occurred “within the time and space boundaries of the employment, when the employee [was] carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly.” Id. at 376-77, 284 S.W.3d at 61. The critical inquiry is whether the interests of the employer were being directly |sor indirectly advanced by the employee at the time of the injury. Id. at 377, 284 S.W.3d at 61. Moreover, the issue of whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Id., 284 S.W.3d at 61.
In this case, the Commission found that Wood was performing employment services as she attempted to exit the restaurant at the mandated point. However, in denying benefits, the Commission also found that Wood’s hug was a deviation from employment services. Wood argues that there is a lack of substantial evidence supporting the latter conclusion. She contends that she did not deviate from her path when she hugged Stroud because Stroud was standing within the two-foot-wide space through which she was required to walk to exit the restaurant. She also argues that the hug consumed a brief second of time and that it did not alter her direction of travel. She likens the hug to a handshake between individuals who are parting company, and she argues that such actions are merely hesitations, not deviations. Finally, she argues that the facts in her case significantly differ from cases where deviations have been found to have occurred. We agree.
In Arkansas, deviations from the work path have been significantly greater than leaning over or taking a step toward someone. In Lytle v. Arkansas Trucking Services, an over-the-road truck driver was injured in an accident 100 miles off his direct route. 54 Ark. App. 73, 75, 923 S.W.2d 292, 293 (1996). Our court affirmed the Commission’s denial of benefits, holding (among other things) that substantial evidence supported the conclusion that the truck driver deviated from his employment. Lytle, 54 Ark. App. at 78, 923 S.W.2d at 295. In Bunny Bread v. Shipman, 267 Ark. 926, 930-31, 591 S.W.2d 692, 695 (1980), a bread-company route salesman was held to have deviated from his work when he was injured while stopped to aid someone stranded on the road. See also Clardy v. Medi-Homes LTC Servs. LLC, 75 Ark. App. 156, 162-63, 55 S.W.3d 791, 794-95 (2001) (affirming denial of benefits to an employee who walked ten feet off her work path to visit with an off-duty co-employee).
The facts in the case at bar are distinguishable from Lytle, Bunny Bread, and Clardy. Here, the undisputed evidence established that Wood did not venture off her path. There was no room to do that because she was forced to navigate a two-foot-wide walkway in order to exit her workplace. She had to walk by Stroud to reach the rear exit of the restaurant. At most, Wood leaned into a friend, or took one step toward a friend, who happened to be standing in her way. Wood said that she did not turn to face Stroud when she hugged her. She just stuck out one arm and hugged Stroud as she passed. Wood stated that there was nothing about the hug that caused her to fall, and she believed that she would have fallen regardless of the hug.
The only evidence cited by the Commission in support of its conclusion that Wood deviated from the path was Wood’s testimony that after the hug “all she had to do is turn and |7go” and Jackson’s testimony that Wood may have had to modify her steps to hug Stroud. Assuming Wood did twist her body or take a step toward Stroud, this cannot be reasonably construed as a deviation. Therefore, we hold that these facts do not constitute substantial evidence supporting the Commission’s conclusion that Wood’s one-armed-hug, while exiting the employment premises, was a deviation from her performance of employment services.
Assuming arguendo that the hug was a deviation, substantial evidence does not support the conclusion that the deviation had not ended at the time of the fall. The Commission found that Wood “ceased hugging Stroud.” In support of this finding, it pointed out that Stroud was not pulled down when Wood fell, and Stroud did not catch Wood or prevent the fall. However, it continued by stating that at the time of the fall Wood was not “back on the beam.” This analogy is improper in this instance because, as stated above, Wood never left “the beam” in the first place; the undisputed evidence established that “the beam” was a two-foot-wide pathway leading to the exit. But assuming the hug was a deviation, all evidence points to the Commission’s conclusion that it was over. Once an employee has completed the deviation, she is once again performing employment services. Sw. Ark. Dev. Council, Inc. v. Tidwell, 95 Ark. App. 27, 30-31, 233 S.W.3d 190, 193 (2006) (affirming award of benefits where an employee — who drove from one client’s home to another’s, stopped at a convenience store for a drink, returned to the highway, and was struck by another vehicle — completed her deviation and was not removed from the realm of employment service).
IsWendy’s argues that Wood was not performing employment services when she fell because the undisputed facts established that she was clocked out at the time of the fall, she was not being paid, and she had no job duties to perform as she exited the restaurant. These facts are not dispositive on the issue of employment services. It has been held that an injury is compensable — despite the fact that the employee was on a break or not officially clocked in — because the employee was performing employment services at the time the injury occurred. Texarkana Sch. Dist., 378 Ark. at 877-78, 284 S.W.3d at 61-62 (affirming the Commission’s decision, finding that an injury suffered by a janitor while opening a gate during his return from his lunch break was compen-sable because he was performing employment services at the time the injury occurred); Shults v. Pulaski County Special Sch. Dist., 63 Ark. App. 171, 976 S.W.2d 399 (1998) (reversing and remanding Commission’s decision that custodian of school was not performing employment services at time of injury because he was only entering the premises; evidence demonstrated that custodian’s job required him to check the alarm system when he entered the school, which is what he was doing when he fell); Caffey v. Sanyo Mfg. Corp., 85 Ark. App. 342, 154 S.W.3d 274 (2004) (affirming Commission’s decision that claimant, who fell minutes before clocking in at work but after she showed her badge to two different security officers — a job requirement — was performing employment services at the time of her fall).
Based on the above, we hold that substantial evidence does not support the Commission’s conclusions that Wood’s hug was a deviation and that the deviation was not |9complete at the time of her fall. Accordingly, we hold that Wood’s injuries occurred while she was performing employment services. Therefore, we reverse and remand for an award of benefits.
Reversed and remanded.
PITTMAN and BROWN, JJ., agree.
. It was undisputed that the area where Wood fell was often slippery due to grease accumulation, a leak in the ceiling, food spills, and moisture leaks from a refrigerator.
. It should be noted that our supreme court in Bunny Bread, applying the "liberal approach ... to draw all reasonable inferences favorable to the claimant,” also held that substantial evidence supported the Commission's conclusion that the deviation — aiding a stranded driver — was insubstantial. 267 Ark. at 929, 931, 591 S.W.2d at 694, 695. | [
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RHONDA K. WOOD, Judge.
|tA jury convicted Jhon Harris of aggravated robbery, theft of property, possession of a defaced firearm, simultaneous possession of drugs and firearms, and possession of methylphenidate with intent to deliver. On appeal, Harris contends that the circuit court erred when it denied Harris’s motion for a directed verdict on the possession-of-methylphenidate count and that the circuit court committed prejudicial error by permitting the victims to remain in the courtroom during the trial. We find no error and affirm.
We first address Harris’s contention that the court erred in denying his motion for directed verdict. Harris argues that because the State failed to send the stolen pills to the Arkansas State Crime Lab for chemical testing, there was insufficient evidence as a matter of law. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Carruth v. State, 2012 Ark. App. 305, 2012 WL 1537809. This court has held that in reviewing a ^challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Ali v. State, 2011 Ark. App. 758, 2011 WL 6064865. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.
The State alleged that Harris stole me-thylphenidate from a Walgfeen’s pharmacy. During the trial, tjiere was ample testimony to support that allegation. First, pharmacy technician Sallie Reeves testified that Harris threatened her with a gun and forced her to allow him access to a locked cabinet where Schedule II drugs were stored. She stated that he had her hold a bag as he searched and took drugs that were specifically marked as opiates.
Second, pharmacist Valerie Jones testified that she observed Harris examine each separate case in the cabinet carefully, select specific bottles of medication, specifically grab the methylphenidate, grab the black trash bag he was using and exit the store. She testified she filed a loss report with the Drug Enforcement Administration, which itemized the missing medications and set forth the milligrams and calculated grams of each missing drug. This report was admitted into evidence at trial. The report listed two bottles of pills containing ten and twenty milligrams of methylphenidate as missing for a total of 129 tablets of that drug.
Last, a local business owner testified that she observed Harris running oh her property near the corner of Walgreen’s and immediately found the trash bag containing |sthe pills. An officer stated that the trash bag included, among other things, two bottles of pills in the original packaging labeled as ten and twenty milligram methylphenidate pills.
The above testimony is substantial evidence that Harris possessed methylpheni-date. Our supreme court has held that circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendants guilt and inconsistent with any other reasonable conclusion. Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003). Here, the evidence compels a conclusion that Harris possessed the drugs without requiring the fact-finder to resort to speculation or conjecture, and we affirm on this point.
Next, Harris contends that the circuit court committed error by allowing two witnesses to remain in the courtroom during the trial. The court refused to sequester Valerie Jones and Sallie Reeves, the pharmacist and pharmacy technician Harris held at gunpoint. The court found that they were both victims of the crime of aggravated robbery and that, under Arkansas Rule of Evidence 616, they were allowed to be present during the trial of the offense. Harris argues that there is only one victim of the armed robbery and that that victim is the pharmacy itself.
This argument is without merit. Arkansas Rule of Evidence 616 (2013) provides exceptions to the rule of witness seclusion, which includes that the victim of a crime may remain in the courtroom. Harris committed armed robbery by committing robbery while armed with a deadly weapon. Ark.Code Ann. § 5-12-103 (Repl. 2013). In Harris v. State, the defendant made a similar argument contending that although he had a gun and robbed several individuals within a home, that those present who had not been robbed were not victims and must be excluded from the courtroom. 308 Ark. 150, 153, 823 S.W.2d 860, |4863 (1992). The court explained that Arkansas law has shifted the emphasis in these cases away from the deprivation of property and instead to the threatened harm. Id. The court held that all the individuals had a gun aimed at them and were thus “victims” regardless of whether they were actually robbed. Id.
Similarly, Harris threatened both Jones and Reeves with a gun in order to gain possession of drugs that were under their control. We hold that the court correctly designated Jones and Reeves as victims and affirm the circuit court’s decision to let them remain in the courtroom. Even if the court improperly characterized them as victims, we will not reverse absent a showing of prejudice. Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996). Here, Harris shows no prejudice.
Affirmed.
HARRISON and GRUBER, JJ., agree. | [
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KAREN R. BAKER, Judge.
|n This case arises from a jurisdictional dispute and the application of the exclusive remedy provisions of the Workers’ Compensation Act, specifically, Arkansas Code Annotated § ll-9-105(a). The central issue is whether the employer’s exclusive remedy, immunity from suit, extends to appellee, Michael S. McCarthy, to bar a wrongful death action filed in Pulaski County Circuit Court on behalf of appellant Carlos Honeysuckle, a deceased employee of Curtis H. Stout, Inc., which resulted from a plane crash wherein Honeysuckle was a passenger and McCarthy was the pilot. Appellant raises three questions in challenging the decision of the Workers’ Compensation Commission: (1) Whether McCarthy was Honeysuckle’s employer within the meaning of the Arkansas Workers’ Compensation Act at the time of the incident in regard to the ac tions complained of; (2) Whether Arkansas Code Annotated § ll-|9-105(a)?, extends immunity, for injuries caused to a co-employee, to a “principal, officer, director, stockholder ...” without regard to whether such person is “acting in the capacity as an employer,” with regard to the actions complained of; (3) Whether under Arkansas Code Annotated § 11-9-105(a) a “principal, officer, director, stockholder” is necessarily “acting in the capacity as an employer” with regard to the conduct causing an injury to a co-employee, simply by virtue of the injury occurring during the course and scope of employment. We reverse the Commission’s determination that McCarthy was an employer under the Act at the time of the accident, which was the basis of the Commission’s decision that it had exclusive jurisdiction of the matter and that the exclusive remedy applied.
The actions of McCarthy, for which Honeysuckle sought damages in the Pulaski County Circuit Court action, arise from Honeysuckle’s claims that McCarthy failed to use reasonable care and skill in maintaining and operating the aircraft whose failure resulted in Honeysuckle’s death. The failure of the aircraft occurred during the return flight from a business trip made by McCarthy and Honeysuckle on behalf of their employer, Curtis H. Stout, Inc. Curtis H. Stout, Inc., is an Arkansas corporation that sells electrical components to public utilities and private companies. It has places of business in multiple states. At all relevant times, McCarthy was an employee, president, member of the board of directors, and a major stockholder in Curtis H. Stout, Inc. Similarly, at all relevant times, Honeysuckle was an employee of Curtis H. Stout, Inc. Curtis H. Stout, Inc., was founded by McCarthy’s grandfather.
^McCarthy was an instrument-rated pilot and duly licensed to fly a Model 114A 4-place single engine Aero Commander aircraft that he owned. He used the aircraft from time to time as a means of transportation in connection with the business of Curtis H. Stout, Inc. At times prior to the accident in issue, McCarthy had carried employees of the company on business trips. McCarthy had used the aircraft in connection with Curtis H. Stout, Inc., on business trips on more than eighty (80) flights between June 2000 and October 2002. McCarthy’s and Honeysuckle’s jobs required each of them to travel. The company reimbursed each employee for his expenses related to his travel. When McCarthy used his aircraft in connection with business trips, the company reimbursed him on a cost of operation basis.
,On December 5, 2002, Honeysuckle and McCarthy, after arriving at the offices of the company located in Little Rock, Arkansas, went to the Little Rock airport in McCarthy’s car and boarded the aircraft owned by McCarthy. McCarthy piloted his aircraft, and Honeysuckle was a passenger. Upon arrival at the Addison, Texas, airport, they were picked up by a business associate of the company and went to a business meeting. At the conclusion of the meeting, they returned to the Addison airport where they boarded McCarthy’s aircraft for the return trip to Little Rock. On the return trip, the aircraft experienced a loss of engine power and McCarthy attempted an emergency landing at Memorial Field in Hot Springs, Arkansas. Due to the loss of engine power, the aircraft crashed in a residential area approximately one mile southwest of the Hot Springs airport. Honeysuckle was fatally injured in the crash, and McCarthy was severely injured. Claims were filed on behalf of both | ¿McCarthy and the Admin-istratrix of the Estate of Carlos Honeysuckle for workers’ compensation before the Arkansas Workers’ Compensation Commission in connection with the accidental injuries they sustained as a result of the aircraft accident.
In the Arkansas Workers’ Compensation Claim styled Honeysuckle vs. Curtis H. Stout, Inc., Claim No. F214059, the Arkansas Workers’ Compensation Commission entered an order wherein it was determined that an employment relationship existed between Carlos Honeysuckle and Curtis H. Stout, at all relevant times, including December 5, 2002, and that Carlos Honeysuckle, an employee, sustained accidental and fatal injuries in the aircraft accident arising out of and in the course and scope of his employment with Curtis H. Stout, Inc., thus determining there was a “compensable injury” under the Arkansas Workers’ Compensation Act. The claimant and those whom she represents received workers’ compensation benefits in excess of $85,000 in connection with the aircraft accident.
In the Arkansas Workers’ Compensation Claim styled Michael McCarthy vs. Curtis H. Stout, Inc., Claim No. F213993, the Arkansas Workers’ Compensation Commission entered an order wherein it was determined that an employment relationship existed between Michael McCarthy and Curtis H. Stout, at all relevant times, including December 5, 2002, and that Michael McCarthy sustained accidental injuries in the aircraft accident arising out of and in the course and scope of his employment with Curtis H. Stout, Inc., thus determining there was a “compensa-ble injury” under the Arkansas Workers’ Compensation Act. McCarthy received workers’ compensation benefits in excess of $300,000 in connection with the aircraft | .-.accident.
After a claim for workers’ compensation benefits had been filed, Janan Honeysuckle, as Administratrix of the Estate of Carlos Honeysuckle, filed a wrongful-death cause of action in the Pulaski County Circuit Court against McCarthy and the manufacturer of the aircraft, as well as the manufacturers of certain component parts of the aircraft, alleging negligence against McCarthy, as well as other theories of recovery against other defendants. McCarthy filed a Petition for a Writ of Prohibition in the Arkansas Supreme Court requesting that the court issue a writ of prohibition prohibiting the Pulaski County Circuit Court from proceeding in the cause of action based on lack of subject-matter jurisdiction. The supreme court granted the writ and remanded the matter to the Workers’ Compensation Commission for a determination of whether McCarthy was an employer under the Act.
The Commission found that McCarthy was the employer of Honeysuckle and entitled to immunity under Arkansas Code Annotated § 11-9-105 and further entitled to immunity from a third-party action under Arkansas Code Annotated § 11-9-410. This appeal followed.
The parties’ arguments concern the interpretation and application of Arkansas Code Annotated § 11-9-105. The question of the correct interpretation and application of an Arkansas statute is a question of law, which we decide de novo. Hempstead Cnty. Hunting Club, Inc. v. Ark. Pub. Serv. Comm’n, 2009 Ark.App. 511, 324 S.W.3d 697; Cooper Realty Inv., Inc. v. Ark. Contractors Licensing Bd., 355 Ark. 156, 134 S.W.3d 1 (2003); see also Baker Refrigeration Sys., Inc. v. Weiss, 360 Ark. 388, 201 S.W.3d 900 (2005). When | (¡examining an issue of statutory construction, our cardinal rule is to give effect to the intent of the legislature. Ark. Gas Consumers, Inc. v. Ark. Pub. Serv. Comm’n, 354 Ark. 37, 49, 118 S.W.3d 109, 118 (2003). Where the language of a stat ute is clear and unambiguous, this court determines legislative intent from the ordinary meaning of the language used. McMickle v. Griffin, 369 Ark. 318, 323, 254 S.W.3d 729, 735 (2007). The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute if possible. Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 338-39, 969 S.W.2d 190, 191-92 (1998).
The Arkansas Workers’ Compensation Act, along with its exclusive remedy provision, is made possible by virtue of amendment 26 to the Constitution of the State of Arkansas. This amendment, set forth in article 5, section 32, of the Arkansas Constitution provides that
[t]he General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.
Ark. Const, art. 5, § 32, amended by Ark. Const, amend. 26 (emphasis added).
Therefore, it is equally important that we bear in mind the principle of statutory construction that requires that we interpret a statute to be constitutionally sound if such an interpretation can be made. See Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415 (2007). As our supreme court has explained:
|7It is well settled that there is a presumption of validity attending every consideration of a statute’s constitutionality; every act carries a strong presumption of constitutionality, and before an act will be held un-constitutional, the incompatibility between it and the constitution must be clear. Eady v. Lansford, [351 Ark. 249, 92 S.W.3d 57 (2002)]. Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality. Id. The heavy burden of demonstrating the unconstitutionality is upon the one attacking it. Id.
Summerville v. Thrower, 369 Ark. at 235-36, 253 S.W.3d at 418 (2007) (quoting Whorton v. Dixon, 363 Ark. 330, 336, 214 S.W.3d 225, 230 (2005)).
The exclusive-remedy provision of the Act is found at Ark.Code Ann. § 11-9-105, and states in part:
The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer, or any principal, officer, director, stockholder, or partner acting in his capacity as an employer, or prime contractor of the employer, on account of the injury or death, and the negligent acts of a co-employee shall not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have.
Ark.Code Ann. § ll-9-105(a) (Repl.2002).
This provision clearly indicates that any claim for injury or death against an employer may only be brought under the Act, thus eliminating an employer’s tort liability. According to the Act, an employee’s remedy against his employer for injuries sustained on the job is to file a workers’ compensation claim, and this remedy is exclusive as to the employer, as stated | sin the statute, and has only been extended by this court to the employer’s workers’ compensation insurance carrier. Cherry v. Tanda, 327 Ark. 600, 940 S.W.2d 457 (1997). The exclusivity provision of the Act mirrors the general purpose of the Act, which was to change the common law by shifting the burden of all work-related injuries from employers and employees and placing it on the consuming public, thus eliminating any need to prove fault. Brown v. Finney, 326 Ark. 691, 932 S.W.2d 769 (1996).
As our supreme court has explained, the public ultimately bears the cost of our structure for workers’ compensation:
[T]he entire compensation system has been set up and paid for, not by the parties, but by the public. The public has ultimately borne the cost of compensation protection in the price of the product.... The public interest is also thwarted when the employer and employee agree to a settlement which unnecessarily increases the cost of the product by giving the worker more than is due.
Vanderpool v. Fid. & Cas. Ins. Co., 327 Ark. 407, 415, 939 S.W.2d 280, 285 (1997) (quoting 3 Arthur Larson, Workmen’s Compensation Law § 82.41 (1988)).
With these principles in mind, we review the Commission’s decision finding that the Commission had exclusive jurisdiction by virtue of McCarthy’s status as Honeysuckle’s employer and applying the statutory immunity. In this case, our supreme court issued an order granting McCarthy’s petition for a writ of prohibition stating that the Commission had exclusive, original jurisdiction to determine whether McCarthy was an employer under the Act at the time of the accident. McCarthy v. Pulaski Cnty. Circuit Court, 366 Ark. 316, 235 S.W.3d 497 (2006). The Commission held that McCarthy was the employer of Honeysuckle 19and entitled to immunity under Arkansas Code Annotated § 11-9-105 and further stated that, even if he were not the employer, he would be entitled to immunity from a third-party action pursuant to Arkansas Code Annotated § 11-9-410 because he was carrying out the employer’s duty to provide a safe workplace. The Commission reasoned that since McCarthy undertook to provide the transportation in this case, and since both McCarthy and Honeysuckle were acting in the course and scope of their employment, immunity was extended to McCarthy. The Commission found that because the accident occurred during the course of the employment of both McCarthy and Honeysuckle, it was reasonable to conclude that the “workplace” was in the aircraft at the time of the accident and that McCarthy was carrying out Curtis H. Stout, Inc.’s duty to provide a safe place to work.
This reasoning is flawed in two regards. First, duty is a concept that arises out of the recognition that relations between individuals may impose upon one a legal obligation for the other. Tackett v. Merchant’s Sec. Patrol, 73 Ark.App. 358, 362, 44 S.W.3d 349, 352 (2001). Ordinarily, a person is under no duty to control the actions of another person, even though he has the practical ability to do so. Id. One is not liable for the acts of another person unless a special relationship exists between the two. Id. The question of what duty is owed to the plaintiff is always one of law, and, while the question of what duty is owed is one of law, the determination of the nature of the relationships arises from the facts. Id.
Recognition of the relationships between individuals in the employment context has shaped the application of our workers’ compensation laws and exclusive-remedy provisions. | mWhen an employee is acting as the alter ego of the employer in discharging the employer’s duty to provide a safe place to work, the employee shares the employer’s immunity. See Simmons First Nat’l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985). This immunity protects the supervisory employees when their general duties involve the overseeing and discharging of the duty to provide a safe place to work. Id. To impose personal liability upon the officers or supervisory personnel “for an accident arising from a condition at a place of employment which a jury may find to be unsafe would almost mandate that the employer provide indemnity to such employees.” Simmons, 285 Ark. at 278, 686 S.W.2d at 417 (quoting State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo.Ct.App.1982)). Indemnity would further increase the costs of the goods and therefore increase the burden upon the public. Accordingly, imposing personal liability upon supervisory employees for causes of action arising out of actions performed in their employment-services capacities would destroy the immunity provisions of the workers’ compensation law. See Simmons, supra.
Second, although the parties stipulated that McCarthy and Honeysuckle were each performing employment services at the time of the accident, it is undisputed that the plane McCarthy was flying was his privately owned plane, insured by McCarthy personally, and that the means of travel was a personal decision made by McCarthy and Honeysuckle individually. Curtis Stout, Inc., did not require Honeysuckle to travel with McCarthy on the plane to, or from, the meeting. Whether an employer requires an employee to do something has been dispositive of whether the activity constituted employment services. Witt v. Allen & Son, Inc., 2009 Ark.App. 561, 2009 WL 2778031. For an accidental injury to be compensa-ble, it must arise out of and in the course of employment. Ark.Code Ann. § 11-9-102(4)(A)(i) (Supp.2007). A compensable injury does not include an injury that was inflicted upon the employee at a time when employment services were not being performed. Ark.Code Ann. § 11-9-102(4)(B)(iii). An employee is performing employment services when he or she is doing something that is generally required by his or her employer. Dairy Farmers of Am., Inc. v. Coker, 98 Ark.App. 400, 255 S.W.3d 905 (2007). We when determining whether an employee is acting within the course and scope of employment. Pifer v. Single Source Transportation, 347 Ark. 851, 69 S.W.3d 1 (2002). The test is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer’s purpose or advancing the employer’s interest, directly or indirectly. Id. See Parker v. Comcast Cable Corp., 100 Ark.App. 400, 269 S.W.3d 391 (2007). Whatever “employment services” means must be determined within the context of individual cases, employments, and working relationships, not generalizations made devoid of practical working conditions. Engle v. Thompson Murray, Inc., 96 Ark.App. 200, 239 S.W.3d 561 (2006).
In this case, the employer required both McCarthy and Honeysuckle to travel to and from Texas to go to the meeting. The parties stipulated that the injuries occurred in the scope of employment. However, while the requirement to travel to the meeting was mandatory, and thus within the scope of employment, the specific means of travel was completely discretionary |12on behalf of each employee. Curtis Stout, Inc., did not require Honeysuckle to travel with McCarthy. Nor did it require McCarthy to provide transportation in his plane to Honeysuckle. The parties agreed that any means or mode of transportation would have been satisfactory for the employee to fulfill his obligation to attend the meeting. While traveling to the meeting advanced the employer’s interest, the specific means of travel did not.
Nothing in our case law suggests that an employee can act as an alter ego of his employer merely by undertaking a duty that is owed by the employer. To the contrary, general principles of agency contradict that proposition. The burden of proving an agency relationship lies with the party asserting its existence. B.J. McAdams, Inc. v. Best Refrigerated Express, Inc., 265 Ark. 519, 579 S.W.2d 608 (1979). Our supreme court has used different definitions of agency, but each of them includes the element of control by the princi pal. In Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985) and Campbell v. Bastian, 236 Ark. 205, 365 S.W.2d 249 (1963), our supreme court adopted the definition of agency contained in the Restatement (Second) of Agency. It said “the two essential elements of an agency relationship are (1) that an agent have the authority to act for the principal and (2) that the agent act on the principal’s behalf and be subject to the principal’s control.” In Hinson v. Culberson-Stowers Chevrolet, Inc., 244 Ark. 853, 427 S.W.2d 539 (1968), the supreme court examined the Restatement definition together with a quote from 2 Am.Jur. 13, Agency § 2 and concluded that “the essential elements for a showing of the agency relationship were authorization and control.” Taylor v. Gill, 326 Ark. 1040, 934 S.W.2d 919 (1996) (quoting Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994)). See Newberry v. Scruggs, 336 Ark. 570, 986 S.W.2d 853 (1999).
On appeal, McCarthy argues that he is entitled to immunity under the statute as a principal, officer, director, and stockholder, in view of the fact that he was acting within the course and scope of his employment and acting in his capacity as an employer at the time of the occurrence in issue. He further contends that he was a co-employee acting within the course and scope of his employment at the time of the accident and entitled to immunity because he was carrying out the duty of the employer to provide a safe place to work. He claims he was providing a safe place to work by transporting Honeysuckle, an employee who was within the course and scope of his employment in connection with a business meeting of Curtis H. Stout, Inc.
McCarthy disputes appellant’s position that the phrase “acting in his capacity as an employer” applies to principals, officers, directors, and stockholders. Instead, he proposes that the phrase applies only to partners, and the Arkansas Workers’ Compensation Commission agreed. On appeal, McCarthy maintains that the only relationship issue for the court to consider when determining the applicability of the immunity provision is the relationship between the tortfeasor and the employer. The limitations of this position become apparent when we consider whether the employer would be liable for Honeysuckle’s injuries if the parties had been traveling in separate airplanes and McCarthy’s alleged negligence had caused a crash. McCarthy’s proposed construction would place the burden of the injury on the 114employer for the harm to Honeysuckle, for which the public bears the burden, while the harm to every other injured person would be borne by McCarthy.
McCarthy argues that, to the extent that Honeysuckle attempts to directly or indirectly raise an issue relative to the constitutionality of Arkansas Code Annotated § ll-9-105(a), the constitutionality of the section is not properly before this court. However, it is McCarthy’s interpretation of the statute that would require us to unconstitutionally extend the immunity provisions of the Act.
The employer in this case, Curtis H. Stout, Inc., directed both McCarthy and Honeysuckle to travel to the meeting in Texas. Each employee was within the scope of his employment during the travel. However, the employer did not direct or control the means of travel, and more specifically, did not control or direct McCarthy in maintaining and operating the aircraft with reasonable care and skill. The actions of McCarthy for which Honeysuckle seeks damages arise from McCarthy’s failure to use reasonable care and skill in maintaining and operating the aircraft whose failure resulted in Honeysuckle’s death.
Reversed.
ROBBINS and MARSHALL, JJ., agree. | [
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ROBERT J. GLADWIN, Judge.
liAppellant Ryecus Ward appeals the revocation of his suspended sentence and probation by the Washington County Circuit Court. On appeal, he argues that his 197-month sentence, with forty-seven months’ suspended, is illegal. We affirm.
On July 10, 2006, appellant entered a guilty plea on a charge of failure to appear for trial on February 7, 2006, on one count of felon in possession of a firearm, and on one count of terroristic threatening. The circuit court imposed a suspended sentence of 108 months in case CR 2006-335-2 (“2006 case”). On April 28, 2008, appellant entered a plea of guilty on a charge of failure to appear for an arraignment on November 2, 2007, on charges of domestic battery in the third degree, robbery, and furnishing prohibited articles. The court sentenced |2appellant to seventy-two months’ probation in case CR 2007-2525-2 (“2007 case”), and the judgment and disposition order contained a notation of “PEN/ 36/RCF/AS.”
On November 6, 2008, the State filed a motion for revocation of probated sentence in both the 2006 and 2007 cases based on alleged violations on May 2, June 3, August 26, and September 18, 2008, that included testing positive for marijuana and amphetamines on June 3, 2008. Additionally, the motion alleged violations including a September 10, 2008 violation of driving on a suspended license, failure to enroll in a court-ordered D.A.I.U. program, as well as late or nonpayment of court costs, county restitution, booking fees, and probation fees. An amended motion for revocation of probated sentence was entered on March 6, 2009, which incorporated the previously alleged violations and added a January 23, 2009 positive test for both marijuana and cocaine.
A hearing was conducted on the motion on March 9, 2009, after which the circuit court revoked the suspended sentence and probation based on findings that appellant had tested positive four times for marijuana, one time for cocaine, and one time for amphetamines. The circuit court sentenced appellant to thirty months for the 2006 case and 120 months for the 2007 case, for a total of 150 months in the Arkansas Department of Correction. The circuit court also sentenced appellant to an additional forty-seven months’ suspended imposition of sentence for the 2006 case, for a total of 197 months with forty-seven months suspended. The circuit court did not address the notation of “PEN/36/ RCF/AS” contained in the judgment and disposition order in the 2007 case. A judgment and | (¡commitment order was filed on March 9, 2009, and an amended judgment and commitment order was filed on March 12, 2009. Appellant filed a timely notice of appeal on April 3, 2009. This appeal followed.
Standard of Review & Applicable Law
It is well settled that an appellant may challenge a void or illegal sentence for the first time on appeal, even if he or she did not raise the argument before the trial court. E.g., Donaldson v. State, 370 Ark. 3, 257 S.W.3d 74 (2007). This court has made it clear that we view the issue of a void or illegal sentence as one of subject-matter jurisdiction, which may be reviewed on appeal. Id. A sentence is void or illegal when the circuit judge lacks the authority to impose it. Id. If we hold that a trial court’s sentence was illegal and that the error had nothing to do with guilt, but only with the illegal sentence, we can correct the sentence in lieu of remanding. See Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003).
Additionally, our supreme court has held that an appellant can challenge an illegal sentence for the first time on appeal, ob serving that “for purposes of appellate review, the issue of an illegal sentence is not solely whether it is within the prescribed statutory range, but whether the trial court had authority to impose the sentence.” Donaldson, 370 Ark. at 6, 257 S.W.3d at 77.
Discussion
Appellant initially raises the question as to whether the suspended imposition and the sentence of probation were imposed upon him. In Donovan v. State, 95 Ark. App. 378, 237 S.W.3d 484 (2006), this court indicated that a sentence is imposed when a court pronounces a fixed term of imprisonment as opposed to simply specifying a definite period of probation, and the probationer can be required to serve only the remainder of the time imposed. See also Ark.Code Ann. § 5-4-307 (Repl. 2006). Appellant argues that Donovan confirms that a suspended imposition of sentence is imposed when pronounced by a circuit court. Following that precedent, he submits that the suspended imposition of sentence in the 2006 case was imposed on July 10, 2006, when the judgment and disposition order was entered.
Regarding the probationary sentence in the 2007 case, appellant acknowledges that a probated sentence and fine are normally not considered “imposed,” and upon revocation, the circuit court can impose any sentence that it could have originally imposed, pursuant to Arkansas Code Annotated section 5-4-309(f)(l)(A) (Repl.2006); see also Cox v. State, 365 Ark. 358, 229 S.W.3d 883 (2006). He suggests, however, that this case presents an issue not previously addressed by the court. Specifically, appellant refers to the notation on the judgment and disposition order, which he claims was a thirty-six-month presumptive sentence to be imposed in the event appellant’s probation was revoked. He maintains that the presumptive sentence should have precluded the circuit court from entering a higher sentence when it revoked appellant’s probation. Instead of following the presumptive sentence of thirty-six months, the circuit court imposed a sentence of 120 months related to the 2007 case.
^Appellant submits that both the suspended imposition of sentence and the sentence of probation, through the presumptive sentence, were imposed sentences. As such, he addresses the maximum penalty available under each sentence. Appellant states that, in the 2006 case, approximately seventy-six months were remaining on that imposed sentence as of the March 9, 2009 hearing. At the same time, in the 2007 case, he maintains that he had twenty-five months remaining on the “presumptive sentence.” Accordingly, appellant urges that the maximum penalty available to be imposed was 101 months. He points out that, even if the court were to apply the entire “presumptive sentence” of thirty-six months as of the date of the hearing, it would result in a maximum possible sentence of 112 months. Accordingly, appellant contends that the circuit court imposed a 197-month sentence that was either ninety-six months or eighty-five months longer than the maximum penalty available. As such, he argues that the sentence imposed is illegal on its face and should be reversed.
Additionally, appellant argues that the circuit court should have run the sentences concurrently, which would have resulted in a maximum potential penalty of seventy-six months. However, appellant does acknowledge Maldonado v. State, 2009 Ark. 432, 2009 WL 3047345, which allows the circuit court to impose consecu tive sentences. We note that the mandate in Maldonado was issued on October 14, 2009, and hold that the case is controlling law for the issue of running the sentences consecutively. The decision is supported by well-established precedent that a circuit court has wide discretion to impose a sentence consecutively or concurrently. See Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003).
l;We hold that the prescribed sentence in the 2006 case of thirty months with an additional forty-seven months’ suspended was within the circuit court’s authority. We note that the holding in Donovan is distinguishable, in that it dealt with a suspended imposition of sentence in a contempt action.
It follows that the remaining issue is whether the judgment and disposition order in the 2007 case was an imposed sentence. Appellant argues that such is the only reasonable interpretation of the portion of the order in the 2007 case that states, “Presumptive Sentence: PEN 36/ RCF/AS.” He points out that the notation immediately follows the designation of presumptive sentence.
Pursuant to the plain language of Arkansas Code Annotated sections 5-4-301(d)(2) and 5^-309(f)(l)(A) (Repl.2006), following the revocation of probation or a suspended sentence, a circuit court is authorized to modify the original order and impose any sentence that originally could have been imposed. The State acknowledges, however, that the circuit court’s authority to modify an order of probation may be limited by Arkansas Code Annotated section 16-93-^402(c)(5) (Repl.2006), which states in part that the circuit court may revoke the probation and require a defendant to serve the sentence imposed or any lesser sentence which might have been originally imposed. (Emphasis added.) Our supreme court held in Cox, supra, that this code section does not conflict with other sentencing provisions because it applies only when probation follows an imposed sentence.
^Because appellant was convicted of a Class C felony, the circuit court could have originally sentenced him to ten years’ imprisonment for failure to appear. Ark. Code Ann. § 5-4-401(a)(4) (Repl.2006). The sentence imposed as a result of revocation in the 2007 cases did not exceed the statutory maximum for the underlying offense, and was thus not illegal on its face. We disagree that the probation order contained a presumptive sentence of thirty-six months’ imprisonment that, upon revocation, limited the circuit court to a sentence not to exceed thirty-six months. We hold that the notation “PEN 36/RCF/AS” is an insufficient basis for appellant’s allegation that the circuit court unambiguously intended to impose a presumptive sentence of thirty-six months in the event appellant failed to comply with the conditions of his probation.
Appellant bears the burden of producing a record demonstrating error. See Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002). Additionally, judgments are generally construed like other instruments, and the determinative factor is the intention of the circuit court gathered from the judgment itself and the record, including the pleadings and the evidence. Lewis v. State, 336 Ark. 469, 986 S.W.2d 95 (1999). Although the record in this appeal does not contain the transcript from the original 2008 sentencing hearing, the judgment and disposition order indicates that appellant was placed on probation for a specific period of time and assigned to the department of probation rather than to the county jail or any other facility. Additionally, the document setting out appellant’s conditions of probation specifically provides that “if the [c]ourt revokes your suspended sentence or probation ... it may impose on you 18a sentence of 10 years.” There is no mention of any presumptive sentence — of thirty-six months or otherwise. Our review of the entire record reveals that the circuit court intended to place appellant on probation for seventy-two months and that no other sentence was imposed. Accordingly, we hold that the circuit court was within its authority to revoke the original sentences and prescribe the resulting sentence and also was within its authority to run the prescribed sentences consecutively.
Affirmed.
MARSHALL and BAKER, JJ., agree.
. Now codified at Arkansas Code Annotated section 5-4-309(g)(l)(A) (Supp.2009). | [
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ROBERT J. GLADWIN, Judge.
| Appellant Derric Jackson appeals his conviction from the Pulaski County Circuit Court on a charge of possession of cocaine with intent to deliver, in violation of Arkansas Code Annotated section 5-64-401 (Repl.2005), a Class Y felony for which he was sentenced, as an habitual offender, to ten years’ imprisonment in the Arkansas Department of Correction. On appeal, he argues that the circuit court erred by denying his motion to suppress evidence ob- tamed through an unlawful search and seizure and also that the circuit court abused its discretion by admitting the evidence over his chain-of-custody objection. We affirm.
Facts
On July 26, 2007, the Street Narcotics Detail of the Little Rock Police Department received an anonymous complaint that narcotics were being sold in the 2300 block of West 11th Street. The complaint indicated that an African-American male named Corey Jackson |2or Johnson had been released from prison and that he had been shot a couple of months ago during the execution of a search warrant. Further, the complaint suggested that several males were hanging around the Dennison and Thayer streets area and that people were afraid of them. The source of the complaint also stated that the suspects had been searched the previous week and had drugs hidden in “the cracks of their butts” and guns concealed under the hood of a car.
Detective Ryan Hudson and other officers initiated an undercover investigation pursuant to the complaint. Subsequently, several officers went to the area on August 28, 2007, and observed multiple suspects, including appellant, blocking the street in a manner that was consistent with the complaint. The undercover officers called in additional officers in marked patrol cars for reinforcement, rounded up the suspects, questioned them, and patted them down for weapons.
One of the suspects that was separated from the others, searched, and interviewed was an individual named Corey Jackson. He responded in the negative when he was asked whether he had drugs on him, and specifically, if he had them concealed in his buttocks area. Officers asked Jackson whether he minded if they checked; he said no; and he was searched with no drugs found. Evidence was presented that Jackson told detectives that Duron Canada and appellant both had dope in “the cracks of their butts.”
Officers returned to talk to Canada and appellant, who previously had been placed in a patrol car, and both stated that they did not have dope on them and had already been checked. Officers specifically asked if they had dope in their buttocks, and they both |sresponded “no.” Testimony from officers indicate that they asked for, and received, verbal consent to search their persons, but appellant disputes this assertion. Officers then pulled patrol cars around the two suspects, opened the doors to block the view of bystanders, and searched them again. There is conflicting evidence as to whether appellant was searched two or three more times, but ultimately, officers discovered and retrieved one gram of crack cocaine from Canada’s buttocks area and fifteen grams from appellant’s buttocks area. Five hundred and fifty four dollars was also discovered on appellant’s person during the search, and the money was also seized.
A felony information was filed on November 15, 2007, charging appellant with one count of possession of a controlled substance with intent to deliver, in violation of Arkansas Code Annotated section 5-64-401, subject to an habitual offender sentence enhancement pursuant to Arkansas Code Annotated section 5-4 — 501(b) (Repl.2006) for four or more prior felony convictions.
Prior to trial, on March 20, 2008, appellant filed a motion to suppress all the evidence obtained through the search, based upon violation of federal rights. A hearing on the motion was held on April 28, 2008, at which time appellant argued that the search was an improper body-cavity search and that officers did not have reasonable suspicion to further detain him after they ran warrant checks and did a pat-down search, and that he did not freely and voluntarily consent to the search. After the hearing, the circuit court took the matter under |4advisement. That motion was denied by the circuit court, pursuant to a letter order filed on May 5, 2008.
An amended motion to suppress was filed by substituted counsel on March 4, 2009, adopting and re-alleging the previous motion and adding alleged violations of the Arkansas Constitution and Rule 12.3 (2008) of the Arkansas Rules of Criminal Procedure. On March 27, 2009, just prior to trial, the circuit court heard arguments on the amended motion to suppress. The amended motion was denied, and the parties proceed with trial.
Testifying for the State was Detective Hudson, followed by Christy Williford. Ms. Williford is a forensic chemist for the Arkansas State Crime Laboratory, and she analyzed the substance sent in by Detective Hudson on this case. Ms. Williford testified that she received a tied blue glove that contained a plastic bag containing four plastic bags, and each one of those bags contained an off-white, rock-like substance that eventually tested to be 6.7850 grams of crack cocaine.
At that time, defense counsel objected, arguing that there was a “substantial break in custody,” regarding the discrepancy in Detective Hudson testifying to retrieving fifteen grams and Ms. Williford testifying that she analyzed 6.7850 grams. The circuit court initially denied the admission of State’s Exhibit No. 1, the package containing the contraband taken from appellant, based upon appellant’s objection. The State then recalled Detective Hudson, who provided more testimony about the chain of custody regarding the seized evidence, and specifically that he placed the plastic bag into a blue police glove and weighed the entire thing versus Ms. Williford separating it all out and weighing without the packaging and the glove. | r,Defense counsel renewed its objection, but the circuit court found that Detective Hudson had sufficiently explained the discrepancy to allow the admission of the exhibit.
After the State rested, defense counsel moved to dismiss the charge, and the circuit court denied the motion. Defense counsel also renewed the motion to suppress based on the alleged unreasonable search and seizure and lack of consent, and the State stood on its original argument that consent had been obtained prior to the search. Acknowledging that he had not been privy to the original hearing on the motion to suppress, the circuit court nevertheless denied the renewed motion to suppress.
Appellant then testified on his own behalf, denying that he had given consent to search, maintaining that he had been detained by officers for approximately thirty minutes, and alleging that officers had strip searched him and performed a body-cavity search of him in open view. Longtime friend of appellant, Monica Foster, testified that she was across the street during the incident between officers and appellant and corroborated his version of the events. She testified that the entire incident lasted approximately forty minutes.
Upon resting, defense counsel renewed the motion to dismiss and motion to suppress, arguing at this point that officers conducted a body-cavity search in violation of the Fourth Amendment and that they did not have probable cause to detain him after the initial pat-down search. Both motions were again denied.
| fiThe circuit court found appellant guilty and sentenced him as previously set forth in a judgment and commitment order filed April 28, 2009. Appellant filed a timely notice of appeal on May 8, 2009, and this appeal followed.
I. Motion to Suppress
(A) Standard of Review & Applicable Law
In reviewing the denial of a motion to suppress evidence, our appellate courts conduct a de novo review based upon the totality of the circumstances, reversing only if the circuit court’s ruling is clearly against the preponderance of the evidence. Stokes v. State, 375 Ark. 394, 291 S.W.3d 155 (2009). Issues regarding the credibility of witnesses testifying at a suppression hearing are within the province of the circuit court. Id. Any conflicts in the testimony are for the circuit court to resolve, as it is in a superior position to determine the credibility of the witnesses. Id.
A law-enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. See Ark. R.Crim. P. 3.1 (2008). The justification for the investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity. Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982). “Reasonable suspicion” means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion. See Ark. R.Crim. P. 2.1 (2008).
Arkansas Rule of Criminal Procedure 3.4 (2008) governs the search for weapons, as follows:
If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.
Arkansas Rule of Criminal Procedure 3.1 (2008) covers detention without arrest, and the time limits thereof:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
(B) Discussion
Appellant initially cites Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), for the proposition that under the Fourth Amendment to the United States Constitution, a warrantless search of either a person or property is per se unreasonable subject to a few, specially defined and welljestablishedg exceptions. He notes that he was neither placed under arrest nor advised of his rights, as acknowledged by Detective Hudson, until after the various searches were performed and the contraband evidence was discovered and seized.
Arkansas Rule of Criminal Procedure 12 (2008) governs searches incident to arrest, and Arkansas Rule of Criminal Procedure 12.1 provides that:
An officer who is making a lawful arrest may, without a search warrant, conduct a search of the person or property of the accused for the following purposes only:
(a) to protect the officer, the accused, or others;
(b) to prevent the escape of the accused;
(c) to furnish appropriate custodial care if the accused is jailed; or
(d) to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of crime, or other things criminally possessed or used in conjunction with the offense.
Rule 12.2 provides the permissible scope for the search of the person:
An officer making an arrest and the authorized officials at the police station or other place of detention to which the accused is brought may conduct a search of the accused’s garments and personal effects ready to hand, the surface of his body, and the area within his immediate control.
Rule 12.3, however, deals specifically with the body-cavity searches of the person, as follows:
(a) Search of an accused’s blood stream, body cavities, and subcutaneous tissues conducted incidental to an arrest may be made only:
(i) if there is a strong probability that it will disclose things subject to seizure and related to the offense for which the individual was arrested; and
(ii) if it reasonably appears that the delay consequent upon procurement of a search warrant would probably result in the disappearance or destruction of the objects of the search; and
(iii) if it reasonably appears that the search is otherwise reasonable under the circumstances of the case, including the seriousness of the offense and the nature of the invasion of the individual’s person.
(b) Any search pursuant to this rule shall be conducted by a physician or a licensed nurse.
| ^Appellant notes that this rule is in accord with the holding in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), in which the Fourth Amendment of the United States Constitution was held to limit the power of the police to conduct a warrantless search, incident to arrest, beyond the body’s outer surface and required a search and seizure warrant to go farther. Appellant also cites State v. Clark, 65 Haw. 488, 654 P.2d 355 (1982), in which a body-cavity search incident to a warrantless arrest was a violation of the United States Constitution.
Appellant submits that Arkansas courts have not dealt with a case such as presented in these facts, and he refers the court to other states’ decisions in similar scenarios. In McGee v. State, 105 S.W.3d 609 (Tex.Crim.App.2003), the Texas Criminal Court of Appeals discussed three different classifications of searches, each involving a different degree of intrusion:
(i) a “strip search” — the general inspection of a naked person;
(ii) a “visual body — cavity search” — a visual inspection of a person’s anal and genital areas; and
(iii) a “manual body- — cavity search”— the probing and touching of the person’s body cavity.
The Texas court found that “visual body-cavity searches” were among one of the most intrusive searches and that the intrusive nature cannot be overstated. The court went on to say that such searches can be “demeaning, dehumanizing, undignified, humiliating and terrifying.” Id. at 616. Four factors to be considered as to whether a search is legal under the Fourth Amendment were listed:
(1) the scope of the search;
(2) the manner in which the search was conducted, i.e., whether the officer had any training;
| |fl(3) the justification for the search, i.e., whether there was probable cause to search based on a tip from a third party;
(4) where the search was conducted, i.e., was it conducted in a hygienic environment so that there was no risk of infection.
Appellant also cites Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), where the Fourth Circuit Court of Appeals held that the privacy interests of an individual should be considered and the search should be conducted in a private area, and that strip searches and body-cavity searches involve such an intrusion that they should rarely, if ever, be conducted in public places. Applied to the current case, appellant submits to the court that (1) he was not under arrest; (2) previous searches of his person had been conducted and nothing was found — leaving officers with no reason to continue holding him; (3)he was in custody in a police car and not free to leave; (4) he was searched in the middle of a public street while being held against the hood of a patrol car; (5) the search constituted a body-cavity search that was conducted by an officer that was wearing gloves but did not testify that he had training in conducting body-cavity searches; (6) that the officer testified that he does similar searches “when the need arises.”
Regarding consent, appellant maintains that, although Detective Hudson may have had a suspicion, he did not have probable cause to conduct an intrusive search of appellant’s person. Appellant urges that he had a reasonable expectation of privacy and that the search was improper pursuant to the Arkansas Rules of Criminal Procedure. Detective Hudson testified that he has consent forms but they were not utilized in this case; the alleged consent obtained from appellant was verbal. Appellant submits that this testimony was the only evidence presented that indicated the search was consensual. He points to the testimony of |nMs. Foster, who explained that she saw appellant placed in the police car and the door shut. She also testified that she saw officers remove appellant from the car and overheard them say something to him about taking his belt off. Ms. Foster explained that she saw two officers hold appellant down and pull down his pants and boxer shorts, pull up his pants, throw him back in the car, return and repeat the strip-search procedure. She testified that he was placed back into the car after the final search and then officers repeated the strip search yet again, the third time taking his pants all the way off.
Appellant urges that under Rule 11.1 (2008) of the Arkansas Rules of Criminal Procedure, the State failed to prove by clear and convincing evidence that there was consent given by him for these searches. See Ralph v. State, 76 Ark. App. 1, 62 S.W.3d 1 (2001). Rule 11.1 provides the authority to search and seize pursuant to consent, as follows:
(a) An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search.
(b) The state has the burden of proving by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion.
(c) A search of a dwelling based on consent shall not be valid under this rule unless the person giving the consent was advised of the right to refuse consent. For purposes of this subsection, a “dwelling” means a building or other structure where any person lives or which is customarily used for overnight accommodation of persons. Each unit of a structure divided into separately occupied units is itself a dwelling.
Arkansas Rule of Evidence 11.3 (2008) states that a search based on consent shall not exceed, in duration or physical scope, the limits of the consent given. Accordingly, he asks that his conviction be reversed and remanded due to the circuit court’s error in not suppressing the evidence.
112The State points out that, on appeal, appellant appears to argue that the war-rantless search was unreasonable under the Fourth Amendment because it did not satisfy either the “search-incident-to-arrest” or the “consent” exception to the warrant requirement. The State submits that he seems to have abandoned the earlier contention that the officers lacked reasonable suspicion to further detain him after the initial pat-down search and, therefore, the court should not consider that particular argument. See Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004). Alternatively, the State maintains that the argument was without merit because appellant was detained during a reasonable and proper investigatory stop.
Regarding appellant’s argument that the search was unreasonable because it did not comply with the requirements of Arkansas Rule of Criminal Procedure 12, the State argues that it does not govern because the search was not made incident to an arrest. Appellant himself concedes that he was not under arrest at the time of the search, but merely detained in the patrol car during the investigation.
Next, the State addresses appellant’s argument that there is insufficient proof that he consented to the search. The State cites Howe v. State, 72 Ark. App. 466, 39 S.W.3d 467 (2001), for the proposition that neither probable cause nor reasonable suspicion is necessary for an officer to request consent for a search. An officer may conduct a search of an individual’s person without a search warrant or other color of authority if the individual consents to the search pursuant to Rules 11.1 and 11.2 of the Arkansas Rules of Criminal Procedure. The State acknowledges that it has the burden of proving by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no actual 11sor implied duress or coercion. See Ark. R.Crim. P. 11.1(b). Valid consent to search must be voluntary, and voluntariness is a question of fact to be determined from all the circumstances. See Welch v. State, 364 Ark. 324, 219 S.W.3d 156 (2005). Additionally, knowledge of the right to refuse consent to a search is not a requirement to prove the voluntariness of consent. Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002). The standard for measuring the scope of a suspect’s consent, for purposes of compliance with Rule 11.3, is that of objective reasonableness — what the typical reasonable person would have understood by the exchange between the officer and the suspect. Howe, supra.
The State maintains that Detective Hudson’s testimony about the complaint, investigation, and confrontation supports the circuit court’s ruling. He testified that the activities engaged in by appellant and the other suspects were consistent with the complaint regarding narcotics dealing and piqued the officers’ suspicions. The undercover officers proceeded to engage the suspects with backup from marked patrol cars and uniformed officers, identifying themselves and explaining their investigation of the drug complaint. Testimony indicated that there were fifteen suspects involved. They were all questioned, patted down, and had warrant checks run on them. During this process, Corey Jackson consented to a search for narcotics in his buttocks. He specifically told Detective Hudson that appellant had “dope in the crack of [his] butt.”
Detective Hudson testified that he approached appellant and asked if he had any narcotics on him, to which he answered, “No” and that he had already been searched. Detective Hudson explained that he then specifically asked appellant if he had any narcotics 114in his buttocks, and appellant said he did not. Detective Hudson stated that he asked, “Do you mind if we check?” and that appellant replied, “Yeah, go ahead.” Detective Hudson testified that, in order for appellant to be out of the view of the public during the search, officers pulled up two squad cars, opened all the doors and completely surrounded the cars with officers. Detective Hudson explained that he then pulled appellant’s pants down just past his bottom and located the contraband in the crack of appellant’s buttocks. It was after the drugs were discovered and seized that appellant was placed under arrest.
Detective Hudson testified that the whole investigation took approximately ten minutes, and further explained that he did not perform a body-cavity search of appellant. He specified that the drugs were not found in appellant’s anus, just in the crack of his buttocks area. Further, Detective Hudson testified that (1) he did not tell appellant he was under arrest before the search; (2) he told appellant he was investigating but did not tell him he had to cooperate with the search; (3) explained that if appellant had told him he did not want to be searched, “[t]here was nothing I could do”; (4) he did not lead appellant to believe that he had to cooperate with the search; (5) appellant had plenty of time to refuse to consent to the search; (6) appellant cooperated fully.
The State urges that the officers clearly had reasonable suspicion that appellant was involved in narcotics dealing, and therefore, the investigative stop and detention were proper. Likewise, based on the details of the complaint, they had a reasonable suspicion that appellant was armed. Accordingly, we hold that the initial pat-down search was proper.
| ^The State also contends that the length of detention was also reasonable. Officers detained all the suspects while they checked for weapons, identification, and outstanding warrants. According to Detective Hudson, this process took approximately ten minutes. However, the State submits that, even if the detention had exceeded fifteen or even thirty minutes, as suggested by appellant, the duration was reasonable in light of the number of suspects involved — approximately fifteen individuals. In determining whether the duration of a detention is reasonable, courts consider the law-enforcement purpose to be served and the time reasonably necessary to effectuate that purpose. See Omar v. State, 99 Ark. App. 436, 262 S.W.3d 195 (2007). The State urges, and we agree, that the detention in this case was not unreasonable because the officers diligently pursued a means of investigation that dispelled their suspicions quickly. Id.
Moreover, during the investigation, the State points out that appellant was asked for, and gave, his consent to search for narcotics in his buttocks. Detective Hudson testified that appellant cooperated fully and did nothing to indicate that his consent was not freely and voluntarily given. The State notes that Detective Hudson was not required to tell appellant that he could refuse consent to the search, and given the fact that appellant was a habitual felon with three prior cocaine arrests, this was not his first run-in with the law. The State submits that any contention that he merely acquiesced to Detective Hudson’s claim of authority is merit less. Although appellant’s story, and that of his friend, Ms. Foster, was different from that of Detective Hudson, specifically with regard to consent and his being |1fithrown in and out of the patrol car, the circuit court found Detective Hudson’s testimony to be more credible. The State urges this court to defer to that determination. See Stokes, supra.
The State reiterates that the search did not exceed the scope of the consent given, as a typical reasonable person would have understood that Detective Hudson was requesting to look in the buttocks area for narcotics based upon his request. That is specifically what he asked and what he alleges appellant consented to. Detective Hudson specifically testified that he only visually inspected the crack area of appellant’s buttocks; he did not search inside his anus for the drugs. The request for consent was specific, and the search was conducted in just the manner and extent requested.
Finally, the State urges that the search was reasonable. Officers attempted to protect appellant’s privacy during the search by pulling up two patrol vehicles, opening all four doors, and surrounding the vehicles with officers to further obstruct the public’s view. To avoid unnecessary intrusion, Detective Hudson stated that he lowered appellant’s pants just below his bottom. It is undisputed that Detective Hudson wore latex gloves during the search. The State maintains that because the investigatory stop and detention were reasonable and because appellant voluntarily consented to the search of his buttocks for narcotics, this court should affirm.
While we acknowledge that the evidence before us regarding the consent to search is in direct conflict, weighing the evidence and assessing the credibility of the witnesses are matters for the fact-finder. Bush v. State, 90 Ark. App. 373, 206 S.W.3d 268 (2005). The jury is free to believe all or part of any witness’s testimony and resolves questions of | ^conflicting testimony and inconsistent evidence. See Gikonyo v. State, 102 Ark. App. 223, 283 S.W.3d 631 (2008). Reconciling conflicts in the testimony and weighing the evidence are matters within the exclusive province of the jury. See Mitchem v. State, 96 Ark. App. 78, 238 S.W.3d 628 (2006). Accordingly, based upon our deference to the finder of fact on credibility determinations, we affirm on this issue.
II. Chain of Custody Objection
(A) Standard of Review
We do not reverse a circuit court’s ruling on the admissibility of evidence under the chain of custody rule absent a showing that the court abused its discretion. Kincannon v. State, 85 Ark. App. 297, 151 S.W.3d 8 (2004). The purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001). To prove authenticity of evidence the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Id. To allow introduction of physical evidence, it is not necessary that every moment from the time the evidence comes into the possession of a law-enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come in contact with the evidence during that period. Id. Nor is it necessary that every possibility of tampering be eliminated; it is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. Id. To reiterate, on review, we will not reverse a | l8ruling on an evidentiary matter regarding the admissibility of evidence absent an abuse of discretion because such matters are left to the sound discretion of the trial court. Id.
(B) Discussion
As previously stated, Detective Hudson testified under oath at a pretrial hearing held on April 28, 2008, that he found approximately fifteen grams of crack cocaine in appellant’s buttocks during the investigation. Subsequently, at trial, on March 27, 2009, Detective Hudson again testified that he found approximately fifteen grams of crack cocaine on appellant’s person, specifically, in his buttocks. Detective Hudson testified that the contraband was in a plastic baggie when he recovered it, and that he placed it in a blue police glove. The evidence was eventually admitted as State’s Exhibit No. 1.
Conversely, the State’s witness, Ms. Wil-liford, testified that when she received what was marked State’s Exhibit No. 1 for analysis, she found it to weigh just over six grams (6.7850 grams), and her findings were stated in her report that was marked and admitted as State’s Exhibit No. 2. Ms. Williford testified that State’s Exhibit No.l was submitted to her as a sealed, manilla envelope containing a blue glove and four plastic bags, each containing off-white, rock-like substances, which she analyzed to be 6.7850 grams of cocaine base, a difference of approximately nine grams compared to the fifteen grams testified to by detective Hudson.
Appellant’s counsel objected, noting that there was a substantial break in custody with such a large difference between the quantities testified to. The circuit court initially denied the State’s attempt to introduce State’s Exhibit No. 1, but changed that ruling after Detective 119Hudson testified on recall that he did not separate the drugs out when he weighed them. Detective Hudson stated that the fifteen grams was the “package weight” including the baggies and glove, as well as the contraband itself. Appellant alleges that this was a substantial change in his testimony from the two prior occasions, and notes that Detective Hudson never explained why his report did not contain this expía- nation or why he only offered it after the forensic chemist provided a drastically different amount in her report. Appellant argues that Detective Hudson’s testimony was “clearly an attempt to justify his gross misstatement and substantial break in the chain of custody.”
Appellant cites Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997), in which our supreme court held that methamphetamine was easily interchangeable, and because of varying descriptions between witnesses, an inference of a break somewhere in the chain of custody had been raised. The officer testified that the drugs were an “off-white powder substance,” but the chemist testified that the drugs were a “tan, rock-like substance.” The supreme court held that the circuit court abused its discretion by admitting the evidence when it had not been properly authenticated. The supreme court noted that the purpose of establishing chain of custody is to prevent introduction of evidence that has been tampered with and is not authentic. Minor uncertainties in the proof of chain, as argued by counsel and weighed by the jury, do not render evidence inadmissible as a matter of law; see Nash v. State, 267 Ark. 870, 591 S.W.2d 670 (1979); however, proof of chain of custody for interchangeable items, like drugs or blood, needs to be more conclusive. See Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996).
12()In the instant case, appellant notes that there were obvious inconsistencies in the testimony given by the officer at the pretrial hearing in April 2008 and his testimony at trial in March 2009. Detective Hudson did not offer any explanation of the weight in his previous testimony, and further, there was no evidence introduced to either explain or confirm his explanation of the weight discrepancy. Accordingly, appellant maintains that the circuit court erred in admitting this evidence, and he asks that the conviction be reversed and remanded.
The State responds by stating that the purported discrepancy in this case — the weight of the contraband seized — did not render State’s Exhibit No. 1 inadmissible. The discrepancy was explained by Detective Hudson in that he placed the plastic bag containing the contraband into a blue police-department bag and weighed the entire thing, at approximately fifteen grams, before sealing, dating, and initialing it to send to the Arkansas State Crime Laboratory. Detective Hudson was also the person who recovered the evidence from the property room on the date of trial, at which time it was sealed. He confirmed the numbers and contents of the bag— consistent with what he had originally sent to be analyzed, and noted when he opened the package at trial that the lab had separated the plastic bag of cocaine from the blue glove. Ms. Williford’s testimony was consistent "with Detective Hudson’s regarding the package, the markings, and the contents. She further explained her analysis of the substance contained therein, as well as how she separated out the contents for weighing purposes.
This case is distinguishable from Crisco, supra, which was based upon the fact that there was no evidence that the substance in question was the same one sent to the crime lab. |¾1 There, the supreme court held that the State was required to do more to establish the authenticity of the drug tested than merely trace the route of the envelope containing the substance. There were significant discrepancies about the very appearance of the two substances in Crisco, whereas here, there was merely a weight difference that was sufficiently explained by the officer when he was allowed to clarify his procedure.
The instant case is factually more similar to Jones v. State, 82 Ark. App. 229, 105 S.W.3d 835 (2003), in which this court held that a circuit court did not abuse its discretion by allowing the admission of drug evidence, even though there was a considerable discrepancy between the weights provided by a police officer and a forensic chemist. Like the instant case, the appellant challenged the admission of the evidence over his chain-of-custody objection, based solely on a discrepancy between the weights — the officer testified that the drugs weighed approximately fifty-nine pounds and the forensic chemist testified that they weighed approximately forty point seven pounds. Also like the instant case, the officer testified that he weighed, not just the drugs but, the bags they were in with all the contents. The court in Jones held that, while the discrepancy was considerable, the officer’s testimony explained the difference in weights, and the circuit court merely had to be satisfied within a reasonable probability that no one had tampered with the evidence. Id.
We hold that, based on the analysis followed in Jones, the circuit court did not abuse its discretion in admitting the evidence; accordingly, we affirm on this point as well.
Affirmed.
BROWN, J., agrees.
HART, J., concurs.
. Canada was also charged in the information.
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PER CURIAM.
bln 2004, appellant Wallace Gardner was found guilty by a jury of capital rtiur-der and aggravated robbery. He was sentenced as a habitual offender to an aggregate term of life imprisonment withóut parole. We affirmed. Gardner v. State, 364 Ark. 506, 221 S.W.3d 339 (2006).
In 2013, appellant, who was incarcerated at a unit of the Arkansas Department of Correction located in Jefferson County, filed a pro se petition for writ of habeas corpus in the Jefferson County Circuit Court. In the petition, he raised the following claims: the felony information violated the constitutional prohibition against double jeopardy because it was necessary to prove the underlying offense of aggravated robbery to prove the offense of capital murder, and he Was denied equal protection and due process of law; he is actually innocent 12of the offenses; the evidence adduced at trial was insufficient to sustain the judgment; he was not afforded effective assistance of of counsel. The circuit court denied the habeas petition, and appellant brings this appeal. Appellant has also filed a motion for appointment of counsel to Represent hjm on appeal.
In his brief, appellant repeats the claims raised in the habeas petition pertaining to double jeopardy, sufficiency of the evidence, and ineffective assistance of counsel and also argues other points that were not raised below. Interspersed with the suffi-cieney-of-the-evidence drgument, appellant contends that he is actually innocent of the offenses.
A circuit court’s denial of habeas relief will not be reversed unless the court’s findings are clearly erroneous. Sanders v. Straughn, 2014 Ark. 312, 439 S.W.3d 1 (per curiam) (citing Henderson v. State, 2014 Ark. 180, 2014 WL 1515878 (per curiam)). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Bryant v. Hobbs, 2014 Ark. 287, 2014 WL 2813280 (per cu-riam); Tolefree v. State, 2014 Ark. 26, 2014 WL 260990 (per curiam) (citing Hill v. State, 2013 Ark. 413, 2013 WL 5596274 (per curiam)). Because it is clear from the record that the circuit court did not err in its order, appellant’s motion for appointment of counsel is denied, and the order is affirmed.
A writ of habeas corpus is proper only when a judgment of conviction is invalid on its face or when a trial court lacked jurisdiction over the cause. Bryant, 2014 Ark. 287; Girley v. \ Hobbs, 2012 Ark. 447, 2012 WL 5963201 (per cu-riam); Abernathy v. Norris, 2011 Ark. 335, 2011 WL 3930360 (per curiam). The burden is on the petitioner in a habeas-corpus petition to establish that the circuit court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is ho basis for a finding that a writ of habeas corpus should issue. Bryant, 2014 Ark. 287 (citing Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam)). Under our statute, a petitioner who does not proceed under Act 1780 of 2001 Acts of Arkansas must plead either the facial invalidity or the lack of jurisdiction by the trial court and must additionally make a showing by affidavit or other evidence of probable cause to believe that he is illegally detained. Ark.Code Ann. § 16-112- 103(a)(1) (Repl.2006); Murphy v. State, 2013 Ark. 155, 2013 WL 1504318 (per cu-riam); Murry v. Hobbs, 2013 Ark. 64, 2013 WL 593365 (per curiam). Proceedings for the writ are not intended to require an extensive review of the record of the trial proceedings, and the court’s inquiry into the validity of the judgment is limited to the face of the commitment order. Murphy, 2013 Ark. 155.
With respect to appellant’s double-jeopardy claim, some claims of double jeopardy are cognizable in a habeas proceeding. Meadows v. State, 2013 Ark. 440, 2013 WL 5878137 (per curiam); see also Flowers v. Norris, 347 Ark. 760, 68 S.W.3d 289 (2002). Detention for an illegal period of time is precisely what a writ of habeas corpus is designed to correct. Meadows, 2013 Ark. 440. But, when a double-jeopardy claim does not allege that, on the face of the commitment order, there was an illegal sentence imposed on a conviction, the claim does not implicate the jurisdiction of the court to hear the case, and the claim is not one cognizable in a habeas proceeding. Id.; Burgie v. Hobbs, 2013 Ark. 360, 2013 WL 5436626 (per curiam). To the extent that appellant |4may have stated a cognizable double-jeopardy claim, it was without merit.
The double jeopardy, clauses of the United States and Arkansas Constitutions protect criminal defendants from multiple punishments for the same offense. See Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001) (citing Wilcox v. State, 342 Ark. 388, 39 S.W.3d 434 (2000) and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). We have held that trial courts have specific authority to sentence a defendant for the underlying felony supporting a capital-murder charge, as well as the felony of capital murder itself. Burgie, 2013 Ark. 360 (citing Jackson v. State, 2013 Ark. 19, 2013 WL 298081 (per curiam)); see also Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008) (citing Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003)). The circuit court did not err in denying appellant’s claim for habeas relief on double-jeopardy grounds.
Appellant’s allegations pertaining to the sufficiency of the evidence and his claim that he is actually innocent were not cognizable in the habeas proceeding. Such a due-process claim is a challenge that should have been raised at trial. Thompson v. State, 2013 Ark. 179, 2013 WL 1776683 (per curiam).
A challenge to the sufficiency of the evidence to sustain the judgment does not call into question the trial court’s jurisdiction or the facial validity of the judgment-and-commitment order. Id.; see also Daniels v. Hobbs, 2011 Ark. 192 (per curiam) (holding that allegations of an illegal search and insufficiency of the evidence were not grounds for issuance of the writ). To the extent that appellant’s arguments were assertions of trial error, claims pertaining to due process and equal protection are not sufficient to implicate the facial validity of the judgment or the jurisdiction of the trial court. Hill v. State, 2013 Ark. 413, 2013 WL 5596274 (per curiam); see also Smith \ Flv. Smith, 2013 Ark. 481, 2013 WL 6157323 (per curiam) (Due process claims are not cognizable in a habeas proceeding.); Bliss v. Hobbs, 2012 Ark. 315, 2012 WL 3374058 (per curiam); McHaney v. Hobbs, 2012 Ark. 361, 2012 WL 4471136 (per curiam); Craig v. Hobbs, 2012 Ark. 218, 2012 WL 1739108 (per curiam) (Attacks on the sufficiency of the evidence and the admissibility of evidence are not cognizable in a habeas proceeding.). If appellant intends his arguments on appeal to challenge the sufficiency of the felony information, we have consistently held that the proper time to object to the form or sufficiency of a charging instrument is pri- or to trial. Jones v. State, 2014 Ark. 67, 2014 WL 585979 (per curiam); Murry v. Hobbs, 2018 Ark. 29, 2018 WL 396010 (per curiam); see also Davis v. State, 2011 Ark. 88, 2011 WL 693581 (per curiam); Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991); England v. State, 234 Ark. 421, 352 S.W.2d 582 (1962).
With respect to appellant’s allegation that he was not afforded effective assistance of counsel, ineffective assistance of counsel is also not a ground for issuance of a writ of habeas corpus. Sanders, 2014 Ark. 312, 439 S.W.3d 1. Any allegation appellant desired to raise concerning counsel’s effectiveness should have been raised in a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2004). See Wesson v. Hobbs, 2014 Ark. 285, 2014 WL 2814958 (per curiam); see also Green v. State, 2014 Ark. 30, 2014 WL 260975. A petition for writ of habeas corpus is not a substitute for proceeding under the Rule. Rodgers v. Hobbs, 2011 Ark. 443, 2011 WL 4840681; Rickenbacker v. Norris, 361 Ark. 291, 206 S.W.3d 220 (2005) (per curiam).
We do not reach the issues in appellant’s brief that concern the validity of his arrest and whether there was probable cause for a search conducted in the ease because the issues were not raised in the habeas petition. Issues raised for the first time on appeal are not grounds to | fireverse a lower court’s order. Williams v. State, 2013 Ark. 375, 2013 WL 5524467 (per curiam); see Rayford v. Hobbs, 2014 Ark. 244, 2014 WL 2168720 (per curiam). Nevertheless, with respect to whether a flaw in the arrest constituted a jurisdictional defect, this court has specifically held that a trial court’s jurisdiction to try an accused does not depend upon the validity of the arrest. Jones, 2014 Ark. 67; see also Roberson v. State, 2013 Ark. 75, 2013 WL 655247 (per curiam); Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974). An illegal arrest, standing alone, does not vitiate a valid conviction. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994). Issues related to the validity of appellant’s arrest are factual issues that should have been addressed in the trial court. See Grimes v. State, 2010 Ark. 97, 2010 WL 682187.
When a petitioner in a habeas proceeding fails to establish that any constitutional or procedural violations implicated the jurisdiction of the trial court or rendered the judgment-and-commitment order invalid on its face, the petitioner has not stated a basis for the writ to issue. Chambliss v. State, 2014 Ark. 188, 2014 WL 1673747 (per curiam). Because appellant did not establish the facial invalidity of the judgment or demonstrate a lack of the trial court’s jurisdiction, the circuit court did not err when it dismissed the petition. Watson v. State, 2014 Ark. 147, 2014 WL 1347111 (per curiam). Accordingly, the circuit court’s order is affirmed.
Affirmed; motion for appointment of counsel denied.
. As of the date of this opinion, appellant remains incarcerated in Jefferson County.
. Claims argued below but not on appeal are considered abandoned. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. | [
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PER CURIAM.
Iiln 1996, petitioner Belynda F. Goff was found guilty by a jury of first-degree murder in the death of her husband, Stephen Goff. She was sentenced to life imprisonment. On direct appeal, this court found no prejudicial error in the guilt-determination portion of the trial. There was error, however, in the sentencing proceeding, and we reversed and remanded for resentenc-ing. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997). On remand, petitioner was again sentenced to life imprisonment. We affirmed. Goff v. State, 341 Ark. 567, 19 S.W.3d 579 (2000).
Now before us.is petitioner’s request to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. She also mentions, without further elaboration, that she is entitled to a writ of habeas corpus.
LA petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Cox v. State, 2011 Ark. 96, 2011 WL 737307 (per curiam); Fudge v. State, 2010 Ark. 426, 2010 WL 4354240; Grant v. State, 2010 Ark. 286, 865 S.W.3d 894 (per curiam) (citing Newman v. State, 2009 Ark. 539, 354 S.W.3d 61); see also Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam).
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Rayford v. State, 2011 Ark. 86, 2011 WL 693584 (per curiam); Whitham v. State, 2011 Ark. 28, 2011 WL 291873 (per curiam); Fudge, 2010 Ark. 426, 2010 WL 4354240; Barker v. State, 2010 Ark. 354, 373 S.W.3d 865; State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). We have held that a writ of error coram nobis was available to address certain errors that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Pitts, 336 Ark. at 583, 986 S.W.2d at 409. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Grant, 2010 Ark. 286, 365 S.W.3d 894 (citing Newman, 2009 Ark. 539, 354 S.W.3d 61); see also Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008) (per curiam); Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004). The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Webb v. State, 2009 Ark. 550, 2009 WL 3681656 (per curiam); Sanders, 374 Ark. 70, 285 S.W.3d 630. Coram-nobis proceedings are attended by a strong | presumption that the judgment of conviction is valid. Gardner v. State, 2011 Ark. 27, 2011 WL 291972 (per curiam); Barker, 2010 Ark. 354, 373 S.W.3d 865; Echols v. State, 360 Ark. 332, 201 S.W.3d 890 (2005); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)).
As grounds for issuance of the writ, petitioner contends that her defense at the time of trial was not made aware of three documents that she has recently discovered. The documents are a report by a police dispatcher, Debra Price; a report by a police officer, Jim Resterholz; and the radio log for the early morning of June 12, 1994, compiled by the Carroll County Sheriffs Department. To understand the alleged significance of the documents, it is necessary to summarize that part of the record concerning the morning that the victim was found dead.
The record reflects that petitioner and her husband had had marital problems for some time prior to his death. Petitioner believed that her husband had affairs with at least two women. A friend of petitioner testified that petitioner had said about one year before Stephen Goff was killed that petitioner would “bash his head in” the next time that he was unfaithful. At the time of his death, petitioner testified that she was suspicious of her husband’s behavior.
On the evening of June 11, 1994, petitioner, Stephen Goff, and their three-year-old son were at home in their apartment. Several hours before Goff was killed, he left the couple’s apartment for a pack of cigarettes. Petitioner testified that, after her husband left, she went to bed and heard no unusual noises during the night. An upstairs neighbor, however, testified that at around 2 a.m. on June 12, she heard three knocks on petitioner’s .door and the sound of the door opening. One to two minutes later, the neighbor heard five or six loud “bangings,” as if someone were banging a broomstick against the ceiling. The doctor who performed the autopsy |4on Goff testified that the condition of his body was consistent with his having been beaten to death around 2 a.m. on June 12.
Petitioner testified that' she slept through the night, with the exception of hearing a door shut at some time during the night, until awakened by her alarm at about 4:30 a.m. When she arose, she found her husband’s body and called- the emergency number, which was answered by Mark Forsee, an emergency medical technician at the Carroll Regional Medical Center. Forsee testified that he remained on the telephone with petitioner for nine minutes while the ambulance was en route to the apartment. In the conversation, petitioner told Forsee that there was blood everywhere and that it was her husband’s. While she .repeatedly declined Forsee’s suggestion to turn on the lights in the room, she did not exhibit any concern or fear that the police might be needed or that an intruder might still be in the apartment. Jay Thomas, the first paramedic on the scene, testified that he could only open the door to the apartment about six inches because Goffs body was lying against the front door, which was the only door to the apartment. Petitioner and her son were only able to leave the apartment after the door was forced opened about eight inches. The police officer who investigated the scene testified that there was massive blood loss from the victim and pieces of his skull were found around the room. There was no sign of forced entry to the door and no signs of a struggle. Police officers found blood consistent with Stephen Goffs DNA in the bathtub drain. The bathtub, shower curtain, toilet plunger, and a sponge were wet. In addition, four extremely-wet towels and a washcloth and ten damp towels were found in the master bedroom under a pile of dry, dirty clothes.
The doctor who performed the autopsy on the victim testified that Goff died of at least six blunt-force injuries to the head. The shape of the wounds was consistent with an object, |fisuch as a hammer, with an oval striking surface. Two hammers were found in the kitchen of the apartment. A forensic consultant testified that the wounds were inflicted by a right-handed person. Proof showed that petitioner is right-handed.
- Petitioner reported her husband’s death to his insurance company, claiming that he was severely beaten somewhere in Carroll County, returned to the apartment, and left in the doorway. The forensic evidence, however, clearly indicated that Goff was killed inside the front door of the apartment. This court found on appeal that the evidence was more than sufficient to establish that petitioner killed her husband.
Petitioner argues as grounds for a writ of error, coram nobis that the State violated the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding the three documents from the defense. Allegations of a Brady violation fall within one of the categories of error that this court has recognized. Pinder v. State, 2011 Ark. 401, 2011 WL 4492362 (per curiam). The fact that a petitioner alleges a Brady violation, however, is not in itself sufficient to provide a basis for error-coram-nobis relief. Burks v. State, 2011 Ark. 173, 2011 WL 1522524 (per curiam). Assuming that the withheld evidence meets the requirements of a Brady violation and is both material and prejudicial, in order to justify issuance of the writ, the withheld material evidence must also be such as to have prevented rendition of the judgment had it been known at the time of trial. Id. To merit relief, a petitioner must demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the information been disclosed at trial. Id.
Petitioner asserts that the significance of the three documents is that the documents show that there was proof that, while she slept, someone entered the apartment, murdered Goff, and | deft. The report by the dispatcher Price reflects that at 4:29 a.m. on the morning Goff was killed, a female caller, who said that she was a nurse at the “Carroll General Hospital,” called the dispatcher, said that a “beating death” had occurred, and provided the address of the Goff apartment. Petitioner contends that the fact that someone besides petitioner knew of the death, including the cause of the death, and reported it indicates that someone besides petitioner must have committed the crime. She further claims that the police-radio log from that morning reveals that someone reported “his or her own crime,” i.e., the murder of Goff, or association with the crime, before the first officer arrived at the scene. She asserts that the call from the woman who said she was a nurse was deliberately hidden from the defense to bolster the State’s claim that petitioner alone committed the murder. She argues that, if the defense had had the documents, the woman who made the call could have been linked by the defense to “unsavory looking characters” who were seen at the apartment complex with a baseball bat in their vehicle just hours before the murder. Petitioner alleges that the police report at issue reflects that the door to the apartment was not made impassable by the victim’s body, as alleged by the State, because two officers entered and exited through the door, and at least five persons knew that the door was not blocked. She essentially argues that, if Goff’s body was not blocking the door after he was killed, the unobstructed exit through the door supports her claim that another person or persons killed Goff. ' She contends that, if the police report had been available, her defense would have been able to call those five persons to testify that the door was passable. Considering the three documents, we do not find that petitioner has demonstrated that a writ of error coram nobis should issue on the claims presented in her petition. One of petitioner’s attorneys at trial avers in an affidavit appended to the petition that, to the best of his knowledge, |7the report by Officer Rester-holz and the incident report by Debra Price were not provided to the defense and were not in the prosecutor’s file. Nevertheless, even if counsel does not recall seeing the documents, the significance of the documents must be weighed against the totality of the evidence to determine if the documents at issue would have been such as to have prevented rendition of the judgment had the existence of those documents been known at the time of trial. Sanders v. State, 2011 Ark. 199, 2011 WL 1687837 (per curiam).
The document written by Price reported that a telephone call was received at 4:29 a.m. on June 12, 1994, from a woman who identified herself as a nurse at Carroll General Hospital. The woman informed Price that a “beating death” had occurred at the address of the Goff apartment. We cannot say that the jury’s knowledge of this call would have prevented rendition of the judgment, inasmuch as a telephone-company operator testified at trial that petitioner called “0” at about 4:22 a.m. on June 12, • 1994, seeking emergency help for her husband. The operator dialed the ambulance service and connected petitioner to it. Mark Forsee, the paramedic who answered the call at 4:18 or 4:19, according to his clock at the medical center, testified that he received a call from a woman requesting an ambulance for her husband. Forsee remained on the line with the woman, identified as petitioner, who said that her husband was covered in blood and not moving. Given the fact that persons at the medical center were aware, by virtue of petitioner’s call to the medical center, that Goff was badly injured, it is likely that one of the nurses there called the police. Petitioner contends that the “nurse” was never identified despite a search for her, but petitioner offers no substantiation for the claim that there was an extensive investigation in an attempt to locate the woman. This court is not required to accept the allegations in a petition for writ of error coram nobis at face value. Scott v. State, 2009 Ark. 437, 2009 WL 3047289 (per curiam). We consider the cumulative effect of the allegedly suppressed evidence to determine whether the evidence that was alleged to have been suppressed was material to the guilt or punishment of the individual. Sanders, 2011 Ark. 199, 2011 WL 1687837; Williams v. State, 2011 Ark. 151, 2011 WL 1320159 (per curiam); see also Thrash v. State, 2011 Ark. 118, 2011 WL 913211 (per curiam). Clearly, the mere fact that the telephone call was made to police by an unidentified woman reporting the death at about the time that petitioner called for an ambulance does not negate the abundance of evidence that demonstrated that petitioner was the only adult in the apartment at the time of her husband’s death.
With respect to petitioner’s claim that the documents at issue proved that the apartment door was not impassable, i.e., that her husband’s body was not against it, when the paramedics first arrived, there was testimony at trial that was consistent with Officer Resterholz’s report. Rester-holz said in the report that paramedic Jay Thomas “squeezed through the cracked door.” Thomas testified at trial that the apartment was dark when he arrived. He knocked and pushed the door slightly but stopped after he felt resistance. He was told by petitioner not to “smash” her husband who was behind the door. He further testified that he had to push the door about six inches to get it open sufficiently to get his head inside and see Goffs body and that he and an officer had to push the door further to help Goff and her son “squeeze through.” Without identifying the person, petitioner alleges that an investigator testified that the door was passable. Rather, there was testimony from an investigator who arrived after Officer Resterholz that the door could only be opened one foot because of resistance. Also, Mark Forsee testified that petitioner herself told him on the telephone that she could not open the door for the ambulance crew. Petitioner has not shown that there is a reasonable probability that the outcome of the | atrial would have been different had any of the documents at issue been available to the defense on the question of whether the door was blocked by the victim’s body.
Finally, with respect to petitioner’s conclusory claim that she is entitled to a writ of habeas corpus, a writ of habeas corpus is only proper when a judgment of conviction is invalid on its face or when a circuit court lacked jurisdiction over the cause. Abernathy v. Norris, 2011 Ark. 335, 2011 WL 3930360 (per curiam); Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994). The burden is on the petitioner in a habeas-corpus petition to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). The peti tioner must plead either the facial invalidity or the lack of jurisdiction and make a “showing by affidavit or other evidence [of] probable cause to believe” that he or she is illegally detained. Id. at 221, 226 S.W.3d at 798-99. Petitioner here does not allege that the trial court lacked jurisdiction or that the commitment was invalid on its face, and there is no ground stated in-the petition that calls into question the jurisdiction of the court or the facial validity of the commitment.
Petition denied.
. The petition was filed under the docket number for the direct appeal of the original judgment of conviction, CR 97-135. | [
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RHONDA K. WOOD, Judge.
hThe Arkansas Workers’ Compensation Commission awarded Heather Lawson additional medical treatment and temporary-total disability (TTD) benefits after she suffered a work-related back injury. Her employer, Shiloh Nursing & Rehab, appeals. We hold that substantial evidence supports both awards and affirm the Commission’s decision.
Heather Lawson hurt her back at work in February 2012. At the time, she was a nurse working for Shiloh Nursing & Rehab. Shiloh agreed that Lawson’s injury was compensable. Lawson would initially receive treatment from two doctors. First, Dr. Haws treated Lawson’s back with heat, ultrasound, and an injection. He restricted Lawson from working. But when she didn’t improve, he sent her to Dr. Moffitt.
Dr. Moffitt recommended therapy but allowed Lawson to return to work with restrictions. Lawson did return to work, but she was unable to finish an entire shift. After 12she failed six attempts to complete a full day’s work, Shiloh fired her. In the meantime, Dr. Moffitt ordered an MRI, which revealed a midline tear at the L5-S1 level on Lawson’s spine. Dr. Moffitt prescribed three steroid injections and opined that Lawson reached maximum medical improvement in July 2012.
Lawson decided to get a second opinion from a neurosurgeon, Dr. Blankenship, who examined her in November 2012. Dr. Blankenship also diagnosed an annular tear at the L5-S1 level. He opined, however, that Lawson’s treatment thus far (six physical therapy sessions) had been insufficient and recommended aggressive physical therapy and, possibly, another MRI. Shiloh challenged this recommended additional medical treatment as well as Lawson’s claim for TTD benefits. These two issues were then presented to the Commission.
An administrative law judge (ALJ) reviewed the case first. After hearing testimony and examining the medical evidence, the ALJ made the following findings: (1) Lawson was entitled to additional medical treatment in the form of Dr. Blankenship’s recommendations, and (2) Lawson was entitled to TTD benefits from November 12, 2012, to a date to be determined. Shiloh then appealed to the Commission, which affirmed and adopted the ALJ’s opinion.
On appeal, we review the evidence in the light most favorable to the Commission’s findings and affirm if those findings are supported by substantial evidence. Wal-Mart Stores, Inc. v. Brown, 82 Ark.App. 600, 120 S.W.3d 153 (2003). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different result than the Commission, but ^whether reasonable minds could reach the Commission’s decision. Pulaski Cnty. Special Sch. Dist. v. Tenner, 2013 Ark. App. 569, 2013 WL 5592602. When the Commission, as it did here, affirms and adopts the ALJ’s opinion, we consider the ALJ’s decision and the Commission’s opinion together. Bio-Tech Pharmacal, Inc. v. Blouin, 2010 Ark. App. 714, 379 S.W.3d 594.
The first issue is whether substantial evidence supports the Commission’s decision to award additional medical treatment. Under Ark.Code Ann. § 11-9-508(a) (Repl.2012), “the employer shall promptly provide for an injured employee such medical ... services ... as may be reasonably necessary in connection with the injury received by the employee.” The employee must prove by a preponderance of the evidence that medical treatment is reasonable and necessary. Butler v. Lake Hamilton Sch. Dist., 2013 Ark. App. 703, 430 S.W.3d 831. What constitutes reasonable and necessary medical treatment is a question of fact for the Commission. Id.
Here, the Commission’s decision to award Lawson additional medical treatment was based on Dr. Blankenship’s recommendations that she receive aggressive physical therapy and possibly another MRI. The Commission’s decision essentially turned on which physician’s opinion it found more credible. The Commission chose to give more weight to Dr. Blankenship’s opinion than to Dr. Moffitt’s opinion. It made this decision, in part, because Dr. Blankenship is a neurosurgeon and specializes in spinal injuries, whereas Dr. Mof-fitt is a generalist. Resolving the conflicting medical evidence, making credibility determinations, and deciding what weight to give to particular pieces of Levidence is within the Commission’s province. Adams v. Bemis Co., 2010 Ark. App. 859, 2010 WL 5129957. We affirm on this point because the Commission’s reliance on Dr. Blankenship’s recommendations forms a substantial basis to award Lawson additional medical treatment.
There was also some evidence that Dr. Blankenship made an additional diagnosis that Lawson had “some mild segmental instability at the lumbosacrum.” Shiloh argues that this additional finding is not supported by objective medical findings and is not connected to her work injury. But this argument is a red herring. Dr. Blankenship recommended physical therapy because of Lawson’s annular tear, which is something that the ALJ specifically noted in the opinion. The ALJ stated that “Dr. Blankenship went on to indicate that [Lawson] had not undergone sufficient physical therapy for an annular tear and it was his recommendation that claimant should undergo an active, aggressive physical therapy program.” It was this medical opinion that formed the basis for the additional-medical-treatment award. Thus, whether Lawson had segmental instability, in addition to an annular tear, is irrelevant.
The second issue is whether Lawson is entitled to TTD benefits from November 2012 to a date to be determined. When an injured employee is totally incapacitated from earning wages and remains within her healing period, she is entitled to temporary-total disability. Riggs v. B & S Contractors, Inc., 2010 Ark. App. 554, 377 S.W.3d 466. The healing period continues until the employee is as far restored as the permanent character of her injury will permit, and it ends when the underlying condition causing the disability has become stable and nothing in the way of treatment will improve that condition. Carroll Gen. Hosp. v. Green, 54 Ark.App. 102, 923 S.W.2d 878 (1996). The | ..¡determination of when the healing period has ended is a factual determination for the Commission. Id.
The Commission decided to award TTD benefits based, again, on Dr. Blankenship’s recommendations. According to Dr. Blankenship, Lawson had yet to reach maximum medical improvement because she still needed physical therapy; further, he stated that he would prefer Lawson to focus on “recovery ... rather than work.” Thus, there is a medical opinion that Lawson has yet to heal and cannot earn wages. Shiloh contends that Lawson was not entitled to TTD benefits because Dr. Moffitt opined that Lawson had reached maximum medical improvement in July 2012. But, as we noted above, the Commission, as finder of fact, chose to give greater weight to Dr. Blankenship’s opinion. The Commission’s TTD award is supported by substantial evidence, and we affirm.
Affirmed.
HARRISON and GRUBER, JJ„ agree.
. Indeed, the lone dissenting Commissioner noted that "the issue of additional benefits primarily turns on which medical opinion should be given more weight in this matter.” | [
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PER CURIAM.
|:In 2012, appellant Richard Ingram was found guilty by a jury in the Jackson County Circuit Court of capital murder for the death of his twenty-three-month-old son, and he was sentenced to life imprisonment without parole. This court affirmed. Ingram v. State, 2013 Ark. 446, 2018 WL 5968937. In 2014, appellant timely filed a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2012), asserting two claims of ineffective assistance of counsel. The trial court denied the petition without a hearing, and appellant timely |2lodged an appeal of that order in this court. Now before us are appellant’s pro se motions for certiorari to complete the record, for access to the transcript, and for extension of time to file brief.
In the motion for writ of certiorari to complete the record before us, appellant asks this court to compel the circuit clerk to complete the record with six exhibits attached to a document filed below that is part of the record on appeal. Four of the six exhibits are included in the record as separately filed documents. Because appellant fails to demonstrate that the omitted documents contain any specific information that is pertinent to the issues raised in the petition, the motion for writ of certiorari is denied.
Because it is clear from the record that appellant could not prevail on appeal, we dismiss the appeal, and appellant’s remaining motions are moot. An appeal of the denial of postconviction relief will not be allowed to proceed when it is clear that the appellant could not prevail. Holliday v. State, 2013 Ark. 47, 2013 WL 485726 (per curiam); Bates v. State, 2012 Ark. 394, 2012 WL 4848963 (per curiam); Martin v. State, 2012 Ark. 312, 2012 WL 3372998 (per curiam).
A review of the petition and the order reveals no error in the trial court’s decision to deny relief. When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s | ¡¡performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29.
The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 Ü.S. at 686, 104 S.Ct. 2052. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First) a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed) the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251 • S.W.3d 290 (2007). There is a strong presumption that trial counsel’s conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoining this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, cpuld not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McQraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per cliriam). Second, the petitiorier must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistanee-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner fnust show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient 14to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Id. 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. Id. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697,104 S.Ct. 2052.
In his petition, appellant summarily alleged that, although a mental evaluation was conducted to determine his competency to stand trial, counsel was ineffective for failing to move for an evaluation to determine his “state of mind” at the time of the crime and whether he had the capacity to appreciate the criminality of his conduct. Appellant also seemed to njake the conclusory allegation that counsel was remiss in not calling an expert witness to testify with regard to his mental state at the time of the crime to support an “affirmative defense” that would have resulted in a different outcome at trial.
Because appellant’s allegations were either not supported by the trial record or lacked factual substantiation, relief is not warranted. While appellant alleged that counsel was remiss in failing to seek a mental evaluation to determine his “state of mind” when the crime was committed, a review of the trial record shows that the forensic evaluation ordered by the trial court included a determination of whether, at the time of the alleged conduct, appellant had the capacity for the culpable mental state to commit the crime and the capacity to appreciate the criminality of his conduct. The examiner concluded that, at the time of the examination, ^appellant had the capacity to understand the proceedings against him, had the capacity to assist effectively in his own defense, and did not have a mental disease or defect. The examiner further concluded that, at the time of the alleged conduct, should the fact-finder conclude that appellant committed the charged offense, appellant did not have a mental disease or defect, had the capacity for the culpable mental state that is required to prove the charged offense, had the capacity to appreciate the criminality of his conduct, and had the capacity to conform his conduct to the requirements of law. At trial, counsel vigorously cross-examined the examiner with regard to his findings and conclusions, and he consistently asserted the defense of mental disease or defect.
To the extent that appellant alleged that counsel was ineffective based on the failure to call an expert witness to support a defense based on a lack of mental capacity, appellant did not allege in his petition what specific information could have been gleaned by an expert other than the court-appointed forensic examiner that would have been favorable to the defense. While appellant appeared to allege in a conclusory fashion that calling a different expert would have produced a different result at trial, he failed entirely to provide any support for the claim that another expert would have come to a different conclusion regarding his mental capacity. The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support the claims of prejudice. Thacker v. State, 2012 Ark. 205, 2012 WL 1631782 (per curiam); Jones v. State, 2011 Ark. 523, 2011 WL 6091468 (per curiam); Payton v. State, 2011 Ark. 217, 2011 WL 1805340 (per curiam). Neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, nor do they warrant granting postconviction relief. Crain v. State, 2012 |fiArk. 412, 2012 WL 5378266 (per curiam); Kelley v. State, 2011 Ark. 175, 2011 WL 1522527 (per curiam); Dela-mar v. State, 2011 Ark. 87, 2011 WL 693579 (per curiam); Eastin v. State, 2010 Ark. 275, 2010 WL 2210924; Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam). We have repeatedly held that conclusory claims are insufficient to sustain a claim of ineffective assistance of counsel. Reed v. State, 2011 Ark. 115, 2011 WL 913208 (per curiam); Wormley v. State, 2011 Ark. 107, 2011 WL 835140 (per curiam); Delamar, 2011 Ark. 87.
Appellant next alleged that counsel was ineffective for failing to present an “adversary proceeding” and “mount a cultural defense.” He claimed that the outcome of the trial, or at least the imposed sentence, would have been different if counsel had raised the argument that he did not have the requisite mental state to commit the charged crime because he did not intend to kill his son when he beat him but that his actions were instead an act of reprimanding his son, as influenced by “cultural factors” regarding disciplinary measures. Appellant, however, did not provide any information that would have established the existence of a “cultural defense” in this case. Likewise, he failed to provide the names of witnesses or the substance of their testimony. Appellant’s conclusory claim is not sufficient to satisfy Strickland because conclusory claims do not demonstrate prejudice. See U.S. v. Ailemen, 710 F.Supp.2d 960 (N.D.Cal. 2008).
Motion for writ of certiorari to complete the record denied; appeal dismissed; motions for access to transcript and for extension of time to file brief moot.
. Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should be held in postconviction proceedings unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Eason v. State, 2011 Ark. 352, 2011 WL 4092485 (per curiam); Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam). When the trial court dismisses a Rule 37.1 petition without an evidentiary hearing, it "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.” Ark. R.Crim. P. 37.3(a); see Ea-son, 2011 Ark. 352. In the instant case, the trial court’s order denying postconviction relief complies with the requirement of Rule 37.3.
. While appellant referred in his petition to receiving a "death sentence,” he was sentenced to life imprisonment without parole. Ingram, 2013 Ark. 446. | [
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RITA W. GRUBER, Judge.
hTeleatha Cosey was charged with robbery and theft of property for acts committed against Caitlin Dempsey, who had given a ride to Cosey and another person. Cosey waived her right to a jury trial, was tried before the bench, and was convicted of the robbery charge and a reduced charge of Class D felony theft. She received concurrent terms of seventy-two months’ probation and was ordered to pay a fíne, fees, and restitution.
On appeal, Cosey does not challenge her conviction of robbery. She concedes that she attempted to take Dempsey’s cell phone and employed physical force in fighting to get the phone, and she admits asking Dempsey to stop in the parking lot where the struggle occurred. But she asserts that the back-seat passenger took advantage of the front-seat struggle to steal Dempsey’s wallet and the $3700 it contained. She argues that the evidence was insufficient to show that she had committed the theft and that the State failed to establish ^accomplice liability on her part. We affirm.
A person commits theft of property if she knowingly (1) takes or exercises unauthorized control over another person’s property with the purpose of depriving the owner of the property, or (2) obtains another person’s property by deception or by threat with the purpose of depriving the owner of the property. Ark.Code Ann. § 5-36-103 (Repl.2013). Our criminal code defines “accomplice” as follows:
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, the person:
(1) Solicits, advises, encourages, or coerces the other person to commit the offense;
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing the offense; or
(3) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to prevent the commission of the offense.
(b) When causing a particular result is an element of an offense, a person is an accomplice of another person in the commission of that offense if, acting with respect to that particular result with the kind of culpable mental state sufficient for the commission of the offense, the person:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the particular result;
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causiiig the particular result; or
(3) Having a legal duty to prevent the conduct causing the particular result, fails to make a proper effort to prevent the conduct causing the particular result.
Ark.Code Ann. § 5-2-403 (Repl.2013).
A person is criminally liable for the conduct of another person if the person is an |saccompIice of the other person ih the commission of an offense. Ark.Code Ann. § 5-2-402(2) (Repl.2013). Factors relevant to determining whether a person is an accomplice include the presehce of the accused near the crime, the accused’s opportunity to commit the crirhe, and association with a person involved in the crime in a manner suggestive of joint participation. Goforth v. State, 2010 Ark. App. 735, 2010 WL 4345706.
Caitlin Dempsey testified that the following events occurred on October 2, 2012. Dempsey, expecting a text from a woman. who was selling a car to her, drove her grandmother’s car to Western Union and then to the house of a friend who was to help her get and drive the other car. Appellant, whom Dempsey had not met before, was introduced there as the frierid’s mother. Appellant later came into a rpom where Dempsey and the friend were counting Dempsey’s money — $300 from her boyfriend and $3400 her mother had wired — and asked Dempsey for a ride home. The seller’s text never came, so Dempsey decided to leave. Appellant then asked if a boy in the house — who was about fourteen or fifteen — could also have a ride. Dempsey testified that she had seen him there once or twice to the past and that appellant seemed to know him. Following appellant’s directions along an unfamiliar back way, Dempsey drove the two of them to a parking lot at The Container Store — appellant to the front seat and the boy sitting behind her.
Dempsey testified that when she stopped the car,
I thought they were going to get out and walk. And that’s when I got robbed.... [Appellant] grabbed my phone off my lap. It took me a minute to register what was going on, and I said, “Give my phone back.” She said I didn’t get it back, and so we fought over my phone.
Dempsey testified that appellant hit her in the struggle; Dempsey bit appellant, trying to make |4her release the phone; and the boy got out, ran around to Dempsey’s open window, and took her wallet from the door. After grabbing her wallet, he “didn’t really do anything ... just took off running.” She chased him until he jumped over a fence, and appellant began walking away to the opposite direction:
As soon as he got off with my wallet, [appellant] stopped fighting for the phone, got out of the car and started walking as I was calling the police. I called the police right then.
I was freaking out. The lady on dispatch was trying to figure out where I was. I was telling her “she’s walking away.” She told me not to follow her, but I did anyway. I parked my car in the middle of Markham Street and I got out of the car and held onto her until a large crowd of people pulled us apart, sat her on the ground and waited for the police to come.
Dempsey explained that she “held onto [appellant] through her shirt. I had my hand wrapped up to her bra strap through her shirt. She continued to beat me in the face trying to get me off of her. She scratched my back really badly.” Photographs of Dempsey’s face and back, taken at the police station shortly after the altercation, were introduced into evidence.
Other witnesses testified that they were driving in the area when traffic stopped on Markham Street and that the following events unfolded. UAMS student Andrea Taylor, describing appellant as a “black woman” and Dempsey as a “white woman,” said she saw the two women get out of a car in the middle of the road. Taylor called 911 when she saw Dempsey grabbing appellant’s shirt and appellant using her fist and purse to beat Dempsey. A crowd gathered, and appellant began “taking off.” Taylor followed her to the parking lot of the IHOP restaurant, where appellant asked, “You’re gonna follow me as long as I walk, aren’t you?” When Taylor replied, ‘Tes, ma’am, I am,” appellant sat down.
IsRachael Grant left her workplace at Massage Envy, beside The Container Store, and was turning onto Markham from the street behind the store when she saw the fight. Describing Dempsey as a “little white girl” and appellant as “a black lady,” Grant said Dempsey “had a hold of the lady,” who was punching Dempsey in the face while Dempsey used her phone. Grant left her car and helped an unidentified person make Dempsey let go of appellant, who started leaving by foot. Grant followed in her car to the IHOP parking lot, where they sat until police got there.
Appellant was sitting at the edge of the grass when Officer David Green, a Little Rock Police Department patrolman, arrived. He testified at trial that he took appellant into custody at the scene based on witnesses’s statements and identification by Dempsey.
Appellant took the stand in her own defense. She testified that she was intoxicated at the time of the incident, having drunk some two-and-a-half fifths of vodka at the friend’s house before asking Dempsey for a ride. Appellant testified that she assumed that Dempsey and the young male — whom appellant said she did not know — were together. She denied asking if he could come along or knowing why he got in the car. She denied knowing that Dempsey had any money but admitted scuffling with her and hitting her after being bitten. Appellant said that witnesses who testified that they had broken up the fight were lying; she claimed that she got out of the car, and she denied scratching Dempsey’s back.
Sufficiency of the Evidence
Appellant argues that the circuit court resorted to speculation and conjecture to find that she was an accomplice and therefore guilty of theft of property. She asserts that the 1 (¡evidence did not compel a finding that she had solicited, advised, encouraged, or coerced the young man to take the wallet and money; or that she had a legal duty to prevent the commission of the offense and failed to make a proper effort to prevent it. She asserts that it is just as likely that the young man took advantage of her attempt to take Dempsey’s cell phone as it is likely that the entire incident was that of a two-person team. Given these two explanations — joint planning vs. independent planning — she concludes that there was only a suspicion of her guilt. Appellant argues that there was no evidence of any relationship between her and the young man aside from her asking Dempsey to give him a ride. She concludes that this single act is a long way from planning the crime together or from aiding, soliciting, or encouraging the theft of money, and that the circumstances provide only a speculative and conjectural finding that she was guilty of the theft.
Circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Goforth, supra. Whether the evidence excludes every other hypothesis is left to the fact-finder to decide. Id. The credibility of witnesses is an issue for the fact-finder, who is free to believe all or part of any witness’s testimony and who resolves questions of conflicting testimony and inconsistent evidence. Id.
Here, appellant’s arguments fail. It was up to the circuit court to decide whether appellant and the young man acted in concert to divert Dempsey’s attention and steal her money. Her account of events differs so significantly from the testimony of other witnesses that the trial court, as the trier of fact, could readily discount her entire testimony. The ^Incredibility of any witness’s testimony is to be assessed by the trier of fact — which may believe all, part, or none of it. Wheeler v. State, 2014 Ark. App. 281, 2014 WL 1856722. Moreover, there was evidence that she waited for police only after realizing that she could not escape disinterested witnesses who pursued her from the scene of the crime. See Goforth, supra (noting that guilt can be inferred from a defendant’s improbable explanations of incriminating conduct and that fleeing from the crime scene is relevant to the issue of guilt). Appellant’s conviction of theft is affirmed.
Affirmed.
HARRISON and WOOD, JJ., agree. | [
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BRANDON J. HARRISON, Judge.
| iThis ease concerns a mistake in identity that occurred, and the fallout from it, when City of Bella Vista police officer Travis Trammell approached Linda Wright and several others while investigating a report of unlawful target shooting in an area known as the “Grosvenor Gravel Pits.” Officer Trammell arrested Linda Wright after receiving information from an Arkansas Crime Information Center (ACIC) check that she had an outstanding warrant for her arrest for failing to appear in Elkins District Court. Wright promptly objected, claiming that she did not fail to appear for any court appearance. Officer Trammell returned to his police car and sought confirmation of the warrant’s existence from a Washington County authority; the county affirmed the ACIC hit. Wright was arrested and transported to jail based solely on the information the police officer received from the ACIC check and the Washington County followup.
| PWright was cleared of any wrongdoing after she investigated the warrant’s accuracy and learned that the Elkins-based warrant had been issued against one “Linda M. Wright,” a person having a different home address, date of birth, and driver’s license number than Appellant Wright. Wright sued Officer Trammell, in his personal capacity, and alleged that her arrest violated state tort law. The officer moved for summary judgment against the complaint, which the circuit court denied. Officer Trammell appeals that denial and contends that appellate jurisdiction exists given the circuit court’s denial of his defense of statutory immunity under Ark. Code Ann. § 21-9-301 (Supp.2013) and Ark. R.App. P.-Civil 2(a)(10) (2013); the latter authority permits a party to appeal an immunity-based decision.
An appeal must usually be taken from a final judgment or decree. Arkansas Lottery Comm’n v. Alpha Mktg., 2012 Ark. 23, at 5-6, 386 S.W.3d 400, 404. And the denial of a motion for summary judgment is, typically, neither reviewable nor appealable. See City of Fayetteville v. Romine, 373 Ark. 318, 284 S.W.3d 10 (2008). But that rule does not apply when a court’s summary-judgment decision effectively determines that an appellant is not entitled to immunity from suit. Gentry v. Robinson, 2009 Ark. 634, 361 S.W.3d 788. Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure-Civil permits an appeal from an interlocutory “order denying a motion to dismiss or for summary judgment based on the defense of sovereign immunity or the immunity of a government official.” The rationale behind this rule is that immunity from suit is effectively lost if the case is permitted to go to trial when an immunity argument can prevail. Arkansas Lottery, supra.
|sEnter the procedural hiccup that requires us to dismiss this appeal without prejudice, which is that the record does not speak clearly enough on whether the court ruled on Officer Trammell’s immunity argument. In Arkansas Lottery, supra, our supreme court held that the circuit court’s failure to make an express ruling on the issue of sovereign immunity prevented a party from perfecting an interlocutory appeal under Rule 2(a)(10). Sovereign immunity was the jurisdictional basis for that interlocutory appeal, and our supreme court reasoned that a circuit-court finding on sovereign immunity was required when the case contained an additional issue. Id.
Statutory immunity, not sovereign immunity, is at issue in this case, but that distinction is not pivotal because the guiding principle from Arkansas Lottery is clear enough: the circuit-court record must expressly reflect that the court ruled on an immunity argument before an interlocutory appeal may be pursued under Rule 2(a)(10). We hold that Arkansas Lottery requires us to dismiss this appeal because Officer Trammell’s motion for summary judgment raised a statutory-immunity defense and attacked the merits of Wright’s complaint, but the circuit court did not expressly rule on the immunity issue raised.
Officer Trammell’s counsel was alert to the potential jurisdictional problem and asked the circuit court to make an express ruling on the immunity issue. As we read the summary-judgment order, however, it appears that the court denied the motion solely on the complaint’s merits, leaving us unsure about the legal fate of the statutory-immunity argument. Here is the important language in the appealed order:
14» “A genuine issue of material fact exists in this case as to whether or not [Officer Trammell] exercised due diligence in arresting [Linda Wright] and taking her into custody.”
•“[Linda Wright] is entitled to have the fact finder, a jury, decide the genuine issue of material fact.”
There is uncertainty in the order because no language expressly references the immunity issue or cites any authority on immunity. Some contextual uncertainty exists too as we read the court papers.
Because the circuit court seems to have ruled on the merits issue but not the defense of immunity, we dismiss this appeal without prejudice for lack of a final, ap-pealable order. No opinion is expressed on the motion’s merits, or the related court order.
Dismissed.
GRUBER and WOOD, JJ., agree. | [
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PER CURIAM.
|, On August 5, 2013, judgment was entered in the Hempstead County Circuit Court reflecting that appellant Michael Muldrow had entered a negotiated plea of guilty to first-degree murder. A sentence of 240 months’ imprisonment was imposed, with an additional 120 months’ suspended imposition of sentence.
On November 15, 2013, appellant filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013). The petition was dismissed on the ground that it was not timely filed, and appellant lodged an appeal in this court from the order. Now before us are appellant’s motions for extension of time to file his brief-in-chief and for appointment of counsel. We dismiss the appeal, as it is evident from the record that appellant could not succeed on appeal. This court will not 12permit an appeal from an order that denied a petition for postconvietion relief to go forward where it is clear that the appellant could not prevail. Smith v. State, 2013 Ark. 422, 2013 WL 5775674 (per cu-riam); Murphy v. State, 2013 Ark. 243, 2013 WL 2382727 (per curiam). The motions are rendered moot by the dismissal of the appeal.
Arkansas Rule of Criminal Procedure 37.2(c) requires that, when an appellant entered a plea of guilty, a petition under the Rule must be filed in the trial court within ninety days of the date of entry of judgment. Ark. R.Crim. P. 37.2(c)(i). Appellant filed his petition 102 days after the judgment had been entered. The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and, if they are not met, a trial court lacks jurisdiction to grant postconviction relief. Us-sery v. State, 2014 Ark. 186, 2014 WL 1673818 (per curiam); Talley v. State, 2012 Ark. 314, 2012 WL 3364266 (per curiam); Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996) (per curiam). The petition before the trial court was not timely filed as to the judgment-and-commitment order; thus, the trial court court lacked jurisdiction to grant the relief sought. When the lower court lacks jurisdiction, the appellate court also lacks jurisdiction. Green v. State, 2014 Ark. 115, 2014 WL 1096184 (per curiam).
Appeal dismissed; motions moot. | [
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PER CURIAM.
Lin 2013, petitioner Benjamin Oliver filed a pro se petition for writ of habeas corpus in the circuit court in Lee County where he is incarcerated. The circuit court denied the petition. No appeal was taken, and petitioner now seeks leave to proceed with a belated appeal.
Arkansas Rule of Appellate Procedure-Civil 4(a) (2013) requires that a no tice of appeal be filed within thirty days of the date an order is entered. Petitioner contends that he did not file a timely notice of appeal because he was not promptly notified by the circuit clerk that the order had been entered.
A petitioner has the right to appeal a ruling on a petition for postconviction relief, which includes the denial of a petition for writ of habeas corpus. Silli-van v. Hobbs, 2014 Ark. 88, 2014 WL 689002 (per curiam); McDaniel v. Hobbs, 2018 Ark. 107, 2018 WL 865581 (per cu-riam); Wesley v. Harmon, 2010 Ark. 21, 2010 WL 132328 (per |2curiam); McClain v. Norris, 2009 Ark. 428, 2009 WL 2971679 (per curiam). If the petitioner fails to file a timely notice of appeal, a belated appeal will not be allowed absent a showing by the petitioner of good cause for the failure to comply with proper procedure. McDaniel, 2013 Ark. 107; Wesley, 2010 Ark. 21; Gamer v. State, 293 Ark. 309, 737 S.W.2d 637 (1987) (per curiam).
Even if the order was not promptly forwarded to petitioner, that fact in itself does not constitute good cause for petitioner’s failure to follow procedure. In contrast to the denial of a petition for postcon-viction relief under Arkansas Rule of Criminal Procedure 37.1 (2013), there is no absolute duty imposed in the statute on a judge or clerk to notify a petitioner that a petition for writ of habeas corpus has been denied. Wesley, 2010 Ark. 21; McClain, 2009 Ark. 428; Ark.Code Ann. §§ 16-112-101 to -123 (Repl.2006).
Our law imposes a duty on lawyers and litigants to exercise reasonable diligence to keep up with the status of cases. Wesley, 2010 Ark. 21; McClain, 2009 Ark. 428. The pro se litigant receives no special consideration in this regard. Wesley, 2010 Ark. 21; see also Tarry v. State, 346 Ark. 267, 57 S.W.3d 163 (2001) (per curiam). It is not the responsibility of the circuit clerk, or anyone other than the party desiring to appeal, to perfect the appeal. Day v. Hobbs, 2014 Ark. 189, 2014 WL 1673749 (per curiam). It was the duty of petitioner to file a timely notice of appeal, and he has not established good cause for his failure to do so.
Motion denied.
. As of the date of this opinion, petitioner remains incarcerated at the prison facility in Lee County.
. Arkansas Rule of Criminal Procedure 37.3(d) places an obligation upon the circuit court to promptly mail a copy of the order to the petitioner. | [
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KENNETH S. HIXSON, Judge.
1,Appellant Karen Thompkins and appellant Nelson Frazier appeal separately from the termination of their parental rights to their two sons, D.F., born on 02/03/2009, and T.F., born on 11/01/2001. The appellants’ respective attorneys have each filed a no-merit brief and a motion to withdraw, stating that each appeal is without merit and that they should be relieved of counsel. We affirm both appeals.
Pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6 — 9(i), each of the appellants’ attorneys have addressed all of the adverse rulings made at the hearing from which the appeal arose, and explained why each adverse ruling is not a meritorious ground for reversal. Nelson Frazier was provided with a copy of his counsel’s brief and motion and was in formed of his right to file pro se points. A copy of Karen Thompkins’ counsel’s brief and motion were mailed to RKaren’s last known address, but was returned and marked “no longer here.” Neither of the appellants have submitted any pro se points for reversal.
We review termination-of-parental-rights cases de novo. Carroll v. Ark. Dep’t of Human Servs., 2014 Ark. App. 199, 2014 WL 1092534. At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark.Code Ann. § 9-27-341 (Supp. 2013); M.T. v. Ark Dep’t of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997).
On February 6, 2012, the Arkansas Department of Human Services filed a motion for emergency custody of D.F. and T.F. Attached to the petition was an affidavit stating that Karen had left the children with Karen’s mother for about four weeks, and that the older child was found walking alone in the middle of the road. Karen’s mother, who is bipolar and schizophrenic, had fallen asleep as a result of her medication, which allowed D.F. to exit her home unsupervised. Upon inquiry, Karen’s mother could not provide phone numbers for either Karen or Nelson, and she did not know where they were. On the same day the petition was filed, the trial court entered an ex parte order for emergency DHS custody.
The trial court entered an order on February 13, 2012, finding probable cause that the emergency conditions requiring removal of the children continued to exist. On March 22, R2012, the trial court entered an adjudication order finding the juveniles to be dependent-neglected. Shortly thereafter, Karen’s criminal probation was revoked for using methamphetamine and she was incarcerated through February 2013. Also during the pendency of the case, Nelson was arrested and charged with sexually assaulting a thirteen-year-old girl.
After multiple review hearings, DHS filed a petition to terminate the parental rights of both parents on June 17, 2013. The termination hearing was held on October 8, 2013.
On January 13, 2014, the trial court entered an order terminating Karen’s and Nelson’s parental rights. The trial court found by clear and convincing evidence that termination of parental rights was in the children’s best interest, and the court specifically considered the likelihood of adoption, as well as the potential harm of returning the children to the custody of their parents as required by Arkansas Code Annotated section § 9-27-341(b)(3)(A). The trial court also found clear and convincing evidence of the following two statutory grounds pertaining to both parents under subsection (b)(3)(B):
(i) (a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
(vii) (a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent.
_JjThe trial court further found, pursuant to subsection (b)(3)(B) (viii), that Nelson had been sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juveniles’ fives.
In the no-merit briefs submitted to this court, appellants’ attorneys correctly assert that there can be no meritorious challenge to the sufficiency of the evidence supporting termination of either parent’s parental rights. Despite completing a drug-treatment program during her incarceration, Karen tested positive for methamphetamine twice after being released, including on the day of the termination hearing. Karen also failed to comply with most of the case plan, and she failed to communicate with DHS or make herself available for additional drug screens. Nelson tested positive on multiple drug screens, including testing positive for methamphetamine on the day of the termination hearing. Karen had no driver’s license or transportation, and had moved from a house with no electricity into another house just two days before the hearing. Nelson testified that he had recently pleaded guilty to second-degree sexual assault and expected to serve four years in prison. Neither parent had visited then-children for the past few months.
Based on the evidence presented, it was clear that termination of parental rights was in the children’s best interest and that DHS proved statutory grounds. Although the trial court found multiple statutory grounds supporting termination, one will suffice. The trial court found by clear and convincing evidence that DHS proved the “other factors” ground as to both parents. The record demonstrated that twenty months had elapsed since removal of the children, and that despite appropriate family services, both parents had manifested the incapacity or indifference to remedy the issues the prevented the juveniles’ return to their |5custody. DHS caseworker John Anderson testified that the children were adoptable, and that due to the parents’ persistent drug use as well as environmental concerns, the children would be in danger if returned to either parent. The trial court’s decision to terminate the appellants’ parental rights was not clearly erroneous, and we agree that any appeal challenging the sufficiency of the evidence would be wholly without merit.
As Karen’s counsel recites in her brief, the only other adverse ruling at the termination hearing was an adverse evi-dentiary ruling during Karen’s testimony, and that ruling clearly was not reversible error. Karen’s attorney made a relevancy objection to a question concerning how Karen had obtained opiates, and the objection was overruled. The ruling was not an abuse of discretion because the answer was relevant to establish whether Karen was spending her money on drugs. Nevertheless, Karen stated that the pills were given to her, and the objectionable question did not result in any prejudice or affect the outcome of the proceedings.
After examining the record and the briefs presented, we have determined that there has been compliance with our no-merit rules and that both appeals are with out merit. Accordingly, we affirm the order terminating appellants’ parental tights and grant the attorneys’ motions to be relieved from representation.
Affirmed; motions granted.
PITTMAN and WOOD, JJ., agree. | [
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KENNETH S. HIXSON, Judge.
11 This is a domestic proceeding between appellant Timothy Ball and appellee Shelia Ball, who married in 1988 and divorced on October 23, 2012. Subsequent to their divorce, Timothy filed a motion to cite Shelia for contempt, alleging that Shelia had violated the trial court’s orders. After a hearing, the trial court entered an order on October 1, 2013, finding that Shelia did not willfully violate the court’s orders and was not in contempt. Timothy now appeals, arguing that the trial court erred in failing to find Shelia in contempt. We affirm.
The parties separated and Shelia filed for divorce in August 2011. After that, Shelia continued to reside in the marital home with the parties’ adult daughter, Shawna. In January 2012, Shelia was diagnosed with breast cancer.
On June 28, 2012, the trial court ehtered an agreed temporary order. Ih that order, the parties agreed tliat Timothy would continue to pay the mortgage on the marital home, |?as well as the costs of the utilities and yard work. Timothy also agreed to make Shelia’s car payment and pay temporary alimony of $1600 per month. The temporary order directed Timothy not to visit the marital home except by appointmeiit and as agreed between the parties and them respective counsel.
The October 28, 2012 divorce decree awarded Timothy the marital home and held him responsible for the mortgage. The decree ordered Timothy to pay Shelia $10,000 for her equitable ihterest in the home. Timothy was also ordered to pay $2500 in monthly alimony. The parties’ personal property was divided in accordance with an attached exhibit. Shelia was given until November 30, 2012, to move out of the marital home, and She was ordered to leave any of Timothy’s personal items in the house. The divorce decree further provided that each party was enjoined from injuring or harassing the other party.
Timothy filed a motion to cite Shelia for contempt on January Í8, ¿013. In Timothy’s motion, he alleged that upon repossession of the home he discovered that it had been left in disarray and in disrepair. Timothy further alleged that Shelia had failed to leave many of his items of personal property awarded to him by the divorce decree. Timothy asked that Shelia be held responsible for his costs to repair the home, and also that she be ordered to replace or pay for the replacement value of his missing personal items.
At the hearing on Timothy’s Contempt motion, Timothy presented numerous photographs showing the condition of the house both before the parties’ separation ánd after he reassumed possession. According to Timothy, the house was in good condition during the parties’ marriage, but had been left by Shelia in a state of filth and disrepair.
1 ¡¡Timothy gave various examples of the problems he allegedly encountered when he took possession of the house after the parties’ divorce. Timothy testified that there were dog feces and urine throughout the house, some of which had been covered up by rugs. Timothy further testified that the swimming pool had not been main-tamed and had a torn liner. According to Timothy, the yard had not been maintained and was overgrown. He stated that the carpets were severely stained and that there was trash strewn about the house. Timothy further testified that the two refrigerators were in disrepair and that one of them had been unplugged with food left in it. Timothy introduced a list of the expenses he allegedly incurred in cleaning and repairing the house, which totaled more than $19,000.
Timothy also testified that many of his personal items were missing from the house. He stated that an expensive grill was missing, and that the garage had been ransacked. Timothy further stated that someone had taken all of his guns and ammunition. Timothy submitted a list of all of his items of personal property that were allegedly missing from the house, and he estimated the total replacement cost at around $16,700.
Shelia testified that many of the problems with the house were present before the parties’ separation. She said that the carpets were stained, the upstairs air conditioner did not work, and there were plumbing issues. Shelia stated that at one time she prevented the landscaper from coming into the backyard because a ladder was missing, but that the landscaper returned the ladder and she allowed him access after that. As for the pool, Shelia stated that Timothy had shut it down when they separated and that she did not know how to maintain it. Shelia denied intentionally leaving the house in disarray or doing anything to |4diminish the value of the house, but she did state that her move was very difficult due to her battle with breast cancer. Shelia stated that when she moved out of the house it was not in the poor condition depicted in Timothy’s photographs.
Shelia denied taking any of Timothy’s personal property, except for a table and a turkey fryer that were accidentally taken by the movers. Shelia stated that the parties had separated a few times in the past, and that on each occasion Timothy took guns and other possessions with him. Shelia did not know whether the personal items claimed by Timothy were in the house on the date of their final separation, but she maintained that she did not have them.
The parties’ daughter, Shawna, corroborated Shelia’s testimony. Shawna testified that neither she nor her mother took any of her father’s personal belongings, and she also stated that the house needed significant repairs at the time of her parents’ separation.
On October 1, 2013, the trial court entered an order finding that Shelia’s behavior did not rise to the level of willful disobedience, and it declined to find Shelia in contempt. The trial court did not order Shelia to reimburse Timothy for any of his alleged repairs or missing items of personal property, although the court did order Shelia to return to Timothy his table and his turkey fryer.
In this appeal, Timothy argues that on these facts the trial court erred in failing to find Shelia in contempt. Timothy argues that by failing to maintain the house and by leaving it in an extremely disorderly and unclean condition, she violated the court’s order to refrain from injuring the other party. Timothy also contends that Shelia willfully violated the divorce | ¡Recree by failing to leave him the items of personal property awarded to him by the decree. He argues that Shelia should be held in contempt and ordered to pay for the consequences of her willful disobedience.
Contempt may be established when the offending party willfully disobeyed a valid order of a court. Bass v. Bass, 2011 Ark. App. 753, 387 S.W.3d 218. Although Timothy’s motion for contempt filed below did not specify whether he was asking that Shelia be held in criminal or civil contempt, it is clear that he was asking for civil contempt. It has long been the rule in Arkansas that, in certain cases, a process for contempt may be used to effect civil remedies, the result of which is to make the innocent party whole from the consequences of contemptuous conduct. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004). Civil contempt protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Bass, supra. The standard of review in civil contempt proceedings is whether the trial court’s finding was clearly against the preponderance of the evidence. Flippen v. Jones, 2014 Ark. App. 220, 2014 WL 1396666.
The trial court found that Shelia did not willfully disobey its orders, and on this record we hold that this finding was not clearly against the preponderance of the evidence. This case turned largely on the credibility of the witnesses, and the trial court stated in its order that it was convinced that Shelia’s testimony was more credible than Timothy’s. In reviewing a trial court’s findings, we give due defer ence to the court’s superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Chitwood v. Chitwood, 2014 Ark. 182, 433 S.W.3d 245. Although Timothy alleged that Shelia had left 16the house in disrepair and disarray, Shelia testified that many of the maintenance issues were present prior to the parties’ separation. Moreover, Shelia disputed the severity of the condition of the house upon her departure, and she maintained that her illness made the move very difficult for her. Shelia stated that she did not intentionally leave the home in a state of disarray, nor did she purposely take any of Timothy’s personal belongings. The two items that were accidentally taken by Shelia during her move were ordered to be returned to Timothy. Shelia denied being in possession of any other items. Leaving credibility determinations to the trial court, as we must, we conclude that the trial court did not err in refusing to find Shelia in contempt.
Affirmed.
WYNNE and BROWN, JJ., agree. | [
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KAREN R. BAKER, Judge.
It The primary issue in this workers’ compensation case is whether the statutory presumption of intoxication found in Ark. Code Ann. § 11-9-102(4)(B)(iv)(b) (Supp. 2009) is raised by a claimant’s refusal to take the particular test requested by the employer. The parties do not dispute that appellant, Curt Bean Transport, Inc., requested that appellee, Lawrence Hill, take a hair-follicle test four days after he wrecked a large truck and that he refused. Curt Bean appeals the ruling of the Workers’ Compensation Commission that Hill’s injuries from the wreck were compensable despite his refusal to take the requested test. It argues that the Commission’s decision should be reversed because it is founded upon an erroneous interpretation of Ark.Code Ann. § 11-9-102(4)(B)(iv)(b). We disagree and affirm the Commission’s decision.
kHill was employed by Curt Bean Transport, Inc., as a long-haul truck driver. On December 1, 2007, Mr. Hill left Curt Bean’s yard in Fort Smith, Arkansas, and began a trip to Ohio. While he was in route through Nashville, Tennessee, his trailer flipped as he traveled on an expressway. Shortly after the accident, the Metro Nashville police arrived along with an official from the Department of Transportation. Mr. Hill told authorities that he was traveling too fast on what he described as a “sort of a semi curving highway,” and his load “shifted.” According to a Tennessee Uniform Crash Report prepared by the officer, this was a one-vehicle accident with one occupant, the driver’s condition appeared to be “normal,” and neither alcohol nor drugs were “observed.”
Mr. Dennis Wouters, accident manager for Curt Bean Transport, spoke by phone with Hill the day of the accident and on several occasions in the days following the accident. Wouters testified that Hill did not seem to be “intoxicated in any way” during their conversations. Each time Wouters spoke with Hill, Hill told him that he was experiencing soreness but was not injured and did not need medical attention. Hill confirmed that he told Curt Bean representatives that he did not need medical attention and had not suffered any injuries. After the accident, Hill was transported to a motel to rest. Hill testified that he was feeling “really shaken up” and “feeling a little stiff and sore,” but didn’t really think anything other than he had been in an accident. On December 3, Hill requested permission to remain in the motel for another day or two for rest, and his request was granted. He testified, however, that he got progressively worse and “could hardly walk” and had pain down his left |sleg. Ms. Brunetta Smith Jackson, Hill’s girlfriend, arrived in Nashville on December 3, 2007, to drive Hill back to Atlanta, Georgia. She testified that when she arrived at Hill’s motel room, she found him in “rough physical shape.” She stated that he was in a lot of pain. Jackson, herself, was recovering from surgery, so the two waited another day before beginning the trip back to Atlanta. Jackson testified that on the way to Atlanta, she stopped to purchase two twenty-ounce beers for Hill.
On December 3, 2007, Mr. Tommy Gage, director of safety at Curt Bean Transport, spoke with Hill for the first time. The company handbook was not offered into evidence, and Mr. Gage testified only that Curt Bean had a policy that stated that a major accident could lead to an employee’s termination. Mr. Gage testified that when he spoke to Hill, Hill expressed concern about losing his job at Curt Bean. On December 5, 2007, Hill was taken to Southern Regional Medical Center emergency room in Riverdale, Georgia, by Ms. Jackson with complaints of right leg, shoulder, neck, and back pain. He was prescribed Flexeril and Vicodin. The emergency room visit was reported by telephone to Gage. During the phone conversation between Mr. Hill and Mr. Gage, Gage informed Hill that he did not have authorization to go to the doctor. Nevertheless, Gage requested that Hill undergo a hair-follicle test for intoxicants while at the hospital for treatment. Gage testified that as the director of safety, he was allowed to require Hill to take a drug test. Hill did not submit to this request and told Gage that he thought it “was a trick.” Hill testified he offered to give a urine sample, a blood sample, “but this pulling my hair, you know, I didn’t understand.” |4Hill did provide a urine sample, but did not see or know of the results of the test. Hill also testified that he asked the hospital personnel to take a hair sample; however, no hair sample was taken. Hill received his termination letter within a few days after his emergency room visit. Mr. Hill testified that he was not directed to a facility for the purpose of having a hair-follicle test performed, he did not receive a letter in the mail directing him to some place to have a hair-follicle test performed, nor was he directed to properly trained medical or law enforcement personnel for the purpose of having a hair-follicle test performed. Gage testified that he did not make arrangements for a hair-follicle drug test because Hill said he would not participate. Gage also said he was not aware that Hill had undergone urine testing.
Gage admitted that the company policy did not specify which drug test the company could require, but said that, as director of safety, he had the prerogative to determine that Hill should have a hair-follicle test instead of a urine or blood test. Gage stated that he did this “without the advent of anything in the policy to that effect,” the policy did not clarify what sort of drug testing the employee was expected to undergo, and the policy did not state that the employee was “expected to undergo reasonable drug testing following an accident.” Mr. Wouters, accident manager for Curt Bean, testified that he did not have a copy of the company handbook with him at the hearing and that the company provided the uninjured driver a bus ticket to his or her home when a driver has a major accident.
On December 8, Hill was treated at Piedmont Hospital and was referred to a specialist for additional treatment. He received physical therapy and underwent x-rays and an MRI of |fihis cervical and lumbar spine. The MRI revealed that “subtle small broad based left posterola-teral to foraminal contained disc herniation at the L5-S1 level abuts the proximal left SI nerve root. This is consistent with the patient’s clinical symptoms. No other abnormalities are observed.” Hill testified that he continued to have pain near his tail bone and a burning pain down his left leg. He admitted that he had used illegal drugs in the past and that he had served time in prison in 1993 for illegal drug use. Hill testified that he had not used drugs since then.
Curt Bean stipulated that Hill sustained an injury on December 1, 2007, and remained in his healing period. Curt Bean Transport also stipulated that Hill was an employee of Curt Bean at the time of the accident, that the accident occurred, and that Hill was in the course and scope of his employment at the time of the accident. Curt Bean’s affirmative defense was that because Mr. Hill was asked to take a hair-follicle drug test and refused to do so, the presumption of intoxication or drug use arose pursuant to Arkansas Code Annotated section 11-9-102(4)(B)(iv) and that Hill could not overcome the presumption. The ALJ determined that Mr. Hill sustained compensable injuries entitling him to temporary disability and medical benefits, that Curt Bean failed to establish an intoxication defense, and that even if the presumption had been raised, it would have been rebutted by the length of time that had passed from the date of the accident until Curt Bean’s alleged request for a drug screen and the observations of the police officer noted at the time of the accident. The Commission affirmed and adopted the opinion of the ALJ.
Typically, on appeal to this court, we review only the decision of the Commission, not that of the ALJ. Daniels v. Affiliated Foods Sw., 70 Ark.App. 319, 17 S.W.3d 817 (2000). Under Arkansas law, the Commission is permitted to adopt the ALJ’s decision. See Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark.App. 338, 107 S.W.3d 876 (2003) (citing Odom v. Tosco Corp., 12 Ark.App. 196, 672 S.W.2d 915 (1984)). Moreover, in so doing, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. See Branum, supra. In this particular case, the Commission affirmed and adopted the ALJ’s opinion as its own. Therefore, for purposes of our review, we consider both the ALJ’s order and the Commission’s majority order.
When reviewing a decision of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Liaromatis v. Baxter County Reg’l Hosp., 95 Ark.App. 296, 236 S.W.3d 524 (2006) (citing Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979); Crossett Sch. Dist. v. Gourley, 50 Ark.App. 1, 899 S.W.2d 482 (1995)). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark.App. 5, 864 S.W.2d 871 (1993). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; even if a preponderance of the evidence might indicate a contrary result, if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. St. Vincent Infirmary Med. Ctr. v. Brown, 753 Ark.App. 30, 917 S.W.2d 550 (1996). The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party. Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992).
Curt Bean argues that it presented sufficient proof of the affirmative defense set forth in Arkansas Code Annotated section ll-9-102(4)(B)(iv) “by showing that claimant refused a drug test,” and thus, the burden shifted to Mr. Hill to overcome that presumption. Curt Bean argues that Hill’s refusal to submit to a hair-follicle test required by his employer triggered “by operation of law, the presumption.” We disagree. Arkansas. Code Annotated section ll-9-102(4)(B)(iv) (Supp.2009), states in relevant part:
(4) (B) “Compensable injury” does not include:
(iv) (a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.
(b) The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.
(c) Every employee is deemed by his or her performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee’s body.
k(d) An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician’s orders did not substantially occasion the injury or accident.
(Emphasis added.)
This court reviews issues of statutory construction de novo, as it is for this court to decide what a statute means. Johnson v. Bonds Fertilizer, Inc., 365 Ark. 133, 226 S.W.3d 753 (2006) (citing Mac-Steel v. Ark. Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005)). Arkansas Code Annotated section 11-9-704(c) (Repl.2002) requires that we construe workers’ compensation statutes strictly. Strict construction requires that nothing be taken as intended that is not clearly expressed, and its doctrine is to use the plain meaning of the language employed. American Standard Travelers Indem. Co. v. Post, 78 Ark. App. 79, 77 S.W.3d 554 (2002). The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Teasley v. Hermann Cos., 92 Ark.App. 40, 211 S.W.3d 40 (2005). When a statute is clear, however, it is given its plain meaning, and the appellate court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. (citing American Standard 19Travelers Indem. Co., supra).
Curt Bean contends on appeal that it did all that was required to prove its affirmative defense to compensability by showing that Hill refused a drug test pursuant to section 11-9-102(4)(B)(iv). This argument fails. A statutory presumption is a rule of law by which the finding of a basic fact gives rise to the existence of a presumed fact, unless sufficient evidence to the contrary is presented to rebut that presumption. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998) (citing Stone v. State, 254 Ark. 1011, 498 S.W.2d 634 (1973)); Black’s Law Dictionary 1185 (6th ed.1990). In ERC Contractor, the court stated as follows:
[T]he basic fact that will invoke the application of the presumption is the presence of alcohol. The plain language of Ark.Code Ann. § 11-9-102 provides that once the presence of alcohol is established as a fact, there is a presumption that any injury or accident was substantially occasioned by the use of alcohol. The statute does not quantify the term “presence.” Therefore, alcohol is present whenever any amount of alcohol is revealed, no matter how small.
ERC Contractor, 335 Ark. at 69, 977 S.W.2d at 215. The plain language of the statute does not specify that a refusal of a drug test is sufficient to create the presumption. Rather it states specifically that the presence of alcohol or drugs creates the presumption, and this court will not interpret the statute, as appellant requests, to mean that Hill’s refusal to submit to a drug test creates the rebuttable presumption.
More importantly, the plain language of the statute does not require that an employee take a drug test of the employer’s choosing but refers only to “reasonable and responsible testing.” This court has previqusly stated in Brown v. Alabama Electric Co., 60 Ark.App. 138, 144, 959 S.W.2d 753, 756 (1998), that section 11-9-102 does not require that the Commission promulgate drug-testing procedures or specify particular types of tests to be used as a precondition to the intoxication presumption. The Arkansas General Assembly could have required testing that would show a certain level of illegal drugs, as it has required to invoke the presumption in DWI cases, but it has not made such a requirement. Our supreme court agreed with that assessment in Flowers v. Norman Oaks Construction Co., 341 Ark. 474, 17 S.W.3d 472 (2000).
Under the facts of this ease, we hold that substantial evidence supports the ALJ and the Commission’s finding that Curt Bean did not meet its burden of proving the presence of alcohol or drugs in order to create the rebuttable presumption of intoxication. We further agree with the ALJ and the Commission that even if the presumption of intoxication had been created, it was rebutted by the length of time between the date of the accident and Curt Bean’s request for hair-follicle testing and by the observations of the police officer at the scene of the accident that Mr. Hill appeared normal and that no alcohol drugs were observed.
Affirmed.
GRUBER and BROWN, JJ., agree.
. Curt Bean also raises a public policy argument. The ALJ and Commission, however, found this argument not to be supported by any authority and therefore gave it little weight. See Stutzman v. Baxter Healthcare Corp., 99 Ark.App. 19, 256 S.W.3d 524 (2007) (stating that where an appellant fails to make a convincing argument or to cite convincing authority in support of it, we will not address the argument); Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001) (holding that the appellate courts defer to the Commission on issues involving the weight of the evidence). | [
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PAUL E. DANIELSON, Justice.
liAppellant Stark Ligón, Executive Director of the Supreme Court Committee on Professional Conduct, appeals from the order of the Committee suspending appel-lee David Rees’s license to practice law for thirty days, to be served consecutively to a forty-two-day suspension ordered in another Committee action, CPC 2006-156. Mr. Ligón asserts seven points on appeal: (1) that the thirty-day suspension imposed was inappropriate and not proportionately severe enough for the misconduct proven; (2) that the Committee’s failure to find a violation of Model Rule of Professional Conduct 8.4(c) as charged in Count G.l of the complaint against Mr. Rees was clearly erroneous; (3) that the Committee’s failure to | gfínd a violation of Rule 8.4(c) as charged in Count G.2 was clearly erroneous; (4) that the Committee’s failure to find a violation of Rule 8.4(c) as charged in Count G.5 was clearly erroneous; (5) that the Committee’s failure to find a violation of Rule 1.2(a) as charged in Count A.2 was clearly erroneous; (6) that the Committee’s failure to find a violation of Rule 1.2(a) as charged in Count A.3 was clearly erroneous; and (7) that the Committee’s failure to vote on and return a finding as to Count H.2 was error. We affirm the Committee’s findings and modify the suspension of Mr. Rees’s law license to one year, with credit for thirty days already served.
The underlying facts are best set forth by the Committee in its order, and neither party appears to challenge that synopsis:
[O]n April 7, 2003, Teahna Mooney of Jonesboro was involved in a two vehicle collision on the 1-55 Mississippi River Bridge at Memphis. Ms. Mooney was a passenger in a commercial transit van vehicle owned and operated by Sonrise Shuttle, Inc. and driven by Emerson George. The van struck the rear of the forward vehicle, a tractor truck-trailer owned by Ruan Transportation, causing major injury to Ms. Mooney. At the time of the accident, Ms. Mooney was in a personal Chapter 13 bankruptcy, No. 02-bk-15395. On April 16, 2003, Ms. Mooney signed an employment agreement with Pocahontas attorney David Throesch to represent her in her claims from April 7, 2003, against Sonrise, Emerson George, Ruan, and its driver. On August 5, 2003, the bankruptcy court approved the employment of Mr. Throesch by Ms. Mooney for this purpose. On August 19, 2003, her bankruptcy case was closed, and it has not been reopened.
In late August 2003, Throesch took Mooney to see Rees. On August 26, 2003, she signed a Personal Injury Contract with the Rees Law Firm for a fee of 40% of any recovery before trial and 45% of any recovery made at trial. Thereafter, Rees was the lead attorney in her matter until he filed his motion to substitute counsel on September 9, 2004, and the court order granting Rees[’s] motion was filed September 22, 2004.
In late January 2004, Rees also entered into a representation agreement with Emerson George regarding an injury to his wife in a possible medical malpractice | ¡¡action for him. Ms. George subsequently died. Emerson George was the at-fault driver of the vehicle in which Ms. Mooney was injured in April 2008. Rees sued George in March 2004 as a defendant in the Mooney case, a time frame within which Rees also represented George. Neither Mooney nor George were informed by Rees as to this dual representation, and neither consented to or waived the conflict Rees had.
When Mr. Throesch took Ms. Mooney to meet Mr. Rees on August 26, 2003, Rees arranged for her to receive financial assistance prohibited by Model Rule 1.8(e) (2002), in the form of an apartment at 1806 Kim Street in Jonesboro, Arkansas, rented to her by Rees’s brother Robert Rees through the brother’s business entities. She had no funds to acquire a place to live. On her application form she listed that she had no income and was unemployed. Rees referred his new client to his brother. On August 26, 2003, the very day she met with Robert Rees, she was able to sign a Lease Agreement for one year with a corporation he owned. She also signed a Promissory Note agreeing to pay the corporation a total of $9,866.67, which included the $700 monthly rent, a $350 deposit, and a $1,000 pet deposit, all due twelve (12) months later. Robert Rees wrote David Rees on September 26, 2003, showing that he understood her Note would be paid out of the proceeds of her lawsuit David Rees was handling. David Rees wrote back that he would protect his brotherfs] lien out of her settlement. Ms. Mooney was personally out of the apartment by February 2005, after Rees ceased to be her attorney in her case. Her daughter may have stayed there until May 2005. Thereafter Bob Rees communicated with Arlon Woodruff about the apartment arrangement. Bob Reese submitted a final bill dated October 24, 2005, in the amount of $21,316.67 to Mr. Woodruff. This bill included a $50.00 monthly late charge for every month Ms. Mooney, or her daughter, was in the apartment or the lease may have continued to be in Ms. Mooney[’s] name from September 2003 through October 2005, an additional total of $1,300 against her account. The arrangement for her to get the apartment was understood from the inception by all that she would not be able to pay anything until she made a recovery in her lawsuit. Mr. Woodruff compromised Robert Reesfs] claim down to $15,000 and paid Mr. Rees that amount from Mooney[’s] recovery in November 2005.
Also on August 26, 2003, when Rees signed Mooney as a firm client, he arranged for and personally guaranteed a loan of $7,500 for her at Regions Bank in Jonesboro, for her personal use. When the loan was renewed or refinanced in August 2004, Rees again personally guaranteed her loan, Rees paid the accrued interest [sic]. When she obtained a recovery in November 2005, the Regions Bank loan was finally paid off in the amount of $8,327.45. These bank loans Rees arranged and personally guaranteed were financial assistance to a client prohibited by Model Rule 1.8(e) (2002).
In late December 2003 an incident occurred between Ms. Mooney and Rees |4at his law office that she characterized as unwanted sexual harassment by him toward her. Rees acknowledged that something of an improper nature occurred. A Release prepared by Rees was signed by Ms. Mooney in another Jonesboro attorney[’s] office, selected by Rees, on September 20, 2004. This Release covered both the alleged sexual harassment and malpractice. Ms. Mooney signed this release under duress, according to her and her handwritten notation on the Release. On behalf of his client David Rees, the other attorney caused to be delivered at that time to Ms. Mooney a check for $1,000.00. Ms. Mooney was not represented by any independent counsel in the matter at the time. She was not satisfied with the deal, so stated, and did not negotiate the $1,000 check until around November 15, 2004.
A new form of a Release limited to the sexual harassment allegation was drafted, which provided for a total payment of $4,000.00 to Ms. Mooney and did not give Rees or his law firm the blanket release from any liability for any of her possible claims for legal or professional malpractice or negligence that was in the release executed on September 20, 2004. A modified release form was transmitted by mail from the Jonesboro attorney to Mr. Woodruff on October 26, 2004. A Rees law firm check for the additional $3,000.00 was issued on or about November 1, 2004. Mr. Woodruff, her new attorney, presented Ms. Mooney with the new Release and the Rees $3,000.00 check at a hearing in her case on November 1, 2004. Mooney signed the modified Release then, and received the second check. She then deposited both checks and they cleared the respective banks on November 15, 2004. No signed copy of the $4,000 Release has been produced by anyone.
The materials Mr. Woodruff supplied the Office of Professional Conduct also include a form of a two page Affidavit and Release for Ms. Mooney, drafted in Rees[’s] law office but never executed. This document states, in part, “upon my Christian word ... in no way has he (Rees) engaged in sexual banner[sic], improper touching, improper behavior and neither have I.” Mr. Woodruffs February 21, 2007 e-mail confirms this document was drafted in the Rees office.
The wife of Emerson George suffered an adverse medical result at a Jonesboro hospital on January 23, 2004. Emerson George and some of his family members came to Rees, on or about January 30, 2004, to discuss his representation of Mr. George on a possible claim for medical negligence in his wife’s matter. On January 30, 2004, Rees executed a Temporary Agreement with Emerson George, as the client, and the Agreement was also signed then by other George family members, including his daughter Phyllis George Morphis and her husband Barry, giving the Rees Law Firm ninety (90) days thereafter to investigate the claim and determine if Rees wished to proceed with the representation. The Rees firm was given a 45% contingency fee of any recovery if the matter was resolved during this time period. Rees did not disclose to Mr. George that he already represented Teahna Mooney, and that his firm was then at work on a lawsuit for her in which Emerson George would be a key defendant. hMrs. George died on April 12, 2004.
On March 26, 2004, a Complaint for Teahna Mooney, signed by David Rees, was filed in Craighead County Circuit Court as Case No. CIV-2004-219, styled Teahna Mooney v. Sonrise Shuttle Service, Inc., Emerson George, Ruan Transportation Management Systems, Inc. d/b/a Ruan Transport Corporation, and Edward Acord. The case was assigned to Circuit Judge David Laser of Jonesboro. Rees caused a summons to be issued for Emerson George, and it was served on George by process server on April 5, 2004. Shortly after being served by Rees, Emerson George brought Rees the suit papers Rees had caused to be served on him, asking Rees what they were. Rees claimed that for the first time he realized his office had sued another firm client, Emerson George.
The Memphis law firm of Glassman, Edwards, Wade & Wyatt, through Carl Wyatt and Russell Wood, entered the case as counsel for Sonrise and George. On April 26, 2004, Rees wrote Carl Wyatt about the George-Mooney representation situation, - Rees stated at that time that he was still actively investigating Mr. George’s medical malpractice claim, to the extent that he was having a medical expert review the case, and was in the process of setting up an estate for the deceased spouse. Rees acknowledged the conflict situation he was then in with regard to Emerson George when he stated to Mr. Wyatt that Rees would need to deal with someone else (on Mr. George’s malpractice claim) and make sure Mr. George did not come into the Rees office during the pendency of the Mooney claim. The ninety (90) days of the Rees Temporary Agreement with Emerson George would not expire until about April 30, 2004. On July 20, 2004, Rees finally wrote Mr. George informing him that Rees did not feel George had a medical malpractice claim in- his late wife’s matter and that the Rees office would not be able to represent George in any such claim.
By August 2004 there was consideration being expressed by Rees to opposing counsel about Rees taking the deposition of Emerson George in Ms. Mooney’s lawsuit, which was set for jury trial to start on November 8, 2004. On September 7, 2004, Rees wrote Mr. Wyatt and provided him with an Affidavit containing Rees’s version of the events surrounding his concurrent George-Mooney representation. On that date, Rees also filed a motion for voluntary non-suit with prejudice as to only defendant Emerson George in the Mooney v. Sonrise case. Rees procured an Order for Voluntary Non-suit With Prejudice Against Separate Defendant Emerson George, also signed September 7, 2004, by Jones-boro Circuit Judge Larry Boling, a judge to whom the Mooney case was not assigned, and had the Order filed September 8, 2004. In the meantime, Emerson George had consulted with attorney Kent Rubens to represent George regarding any issues George had with Rees as a result of the apparent conflict of interest Rees had between his client, Ms. Mooney, and his now-former client Emerson George.
Without fully informing her of the likely consequences of his dismissal of Mr. | f,George from her suit, if Rees recognized the likely consequences at the time, Rees dismissed Mr. George with prejudice as a defendant in Ms. Mooney’s suit in early September 2004. On September 9, 2004, without fully informing Ms. Mooney of the nature of the situation Rees had created with the Emerson George matter, Rees selected and substituted Arlon Woodruff for Rees as Mooney’s attorney in her lawsuit, which was set to go to trial on November 8, 2004. As a result of Rees[’s] dismissal of Mr. George, Ms. Mooney’s case against Mr. George’s deep pocket employer, Sonrise, was seriously jeopardized by a motion filed for Sonrise. On November 1, 2004, Mr. Woodruff was able to salvage Mooney’s case against Mr. George’s employer by getting the judge to set aside Rees’s action dismissing Mr. George as a defendant in the Mooney case.
On or about September 9, 2004, Rees signed and filed a motion for substitution of counsel for Teahna Mooney in the Mooney ease, stating Ms. Mooney had retained new counsel, Arlon Wood-ruff, who thereafter represented Ms. Mooney in her suit. Arlon Woodruff was presented to Ms. Mooney by Rees. Mr. Woodruff was at that time representing Mr. Rees in several personal matters.
On September 21, 2004, Sonrise filed a motion to dismiss the Mooney suit as to Sonrise, claiming that, with the Rees non-suit with prejudice order as to its driver, Emerson George, it was now entitled to be dismissed from the lawsuit under Arkansas law based on the theory of respondeat superior. This motion was heard by Judge Fogleman on November 1, 2004, and denied. Mr. Wood-ruffs motion for Ms. Mooney to set aside the order of dismissal with prejudice as to Mr. George that Rees had filed was granted. As a result, Emerson George was brought back into the Mooney suit as a defendant. In the transcript from November 1, 2004 hearing, Judge Fogleman asked if Mr. Rees had been reported, and Russell Wood replied that Emerson George and Kent Rubens were handling that portion of the matter. Judge Fogleman referred the matter of Rees’s Emerson George conflict to the Committee by letter on March 3, 2005.
On March 12, 2007, Mr. Ligón issued a twenty-one page complaint against Mr. Rees, which alleged twenty-one separate violations of the Model Rules of Professional Conduct. After several extensions, Mr. Rees filed his response to the complaint on September 10, 2007. |7In his response, Mr. Rees denied that his conduct violated Rules 1.2(a), 1.4(d), 1.7(b), 1.8(h), and 8.4(c). However, he admitted that his conduct: (1) “technically” violated Rule 1.7(a) in that he impermissibly represented one client who sued another; (2) violated Rule 1.8(e) in that he referred Ms. Mooney to his brother for housing, told his brother he would protect his lien from the proceeds of Ms. Mooney’s anticipated judgment, and helped Ms. Mooney by personally guaranteeing a loan from Regions Bank; and (B) violated Rule 8.4(d) in that he unintentionally took actions that “necessitate[d] additional court time to correct the mistake with respect to the dismissal of Mr. George.”
On November 30, 2007, Mr. Rees’s counsel conditionally offered certain terms for a proposed discipline by consent. The proposed discipline by consent addressed each of the four cases that were then pending against Mr. Rees. The record reflects that Mr. Ligón made a counteroffer involving all four cases, and, ultimately, a proposed “global” discipline by consent involving a license suspension was approved by a panel of the Committee and submitted to this court for approval. However, by way of a letter from Chief Justice Hannah, this court declined to approve the proposed global consent resolution and returned the matter to the Committee for further consideration.
On July 25, 2008, Mr. Rees was notified by letter of the findings and an order by a IsPanel of the Committee and that he had a right to a public hearing before a different panel. On August 11, 2008, Mr. Rees filed a request for a de novo hearing and requested a stay of the panel’s action. Accordingly, the Committee issued an order setting the instant matter, as well as the three other pending matters, for individual and separate hearings during February 3-5, 2009. A pretrial conference was had on all four cases on January 13, 2009, and the hearings on all four cases, including the subject of this appeal, were held as previously scheduled.
On February 23, 2009, the Committee’s findings and order were filed with this court’s clerk. In the order, the Committee made the following findings with respect to each of the rule violations set forth in the complaint. Specifically, the Committee found:
1. By a unanimous vote, the conduct of Frank David Rees did not violate Model Rule 1.2(a) as alleged in Counts Al, A.2, and A.3 of the Complaint.
2. By a unanimous vote, the conduct of Frank David Rees violated Model Rule 1.4(b), Count B.l of the Complaint, in that if Mr. Rees had advised his client Emerson George on or after January 30, 2004, of Rees[’s] prior and existing representation of Teahna Mooney, and that Rees would soon have to sue Mr. George on behalf of Ms. Mooney, and would not be able to give Rees[’s] full loyalty to Mr. George on the matter George was entrusting to Rees, Mr. George would have had an opportunity to consider employing other counsel to represent him, or his late wife[’s] estate, in any claim for medical negligence arising from her death. Model Rule 1.4(b) requires that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
3. By a unanimous vote, the conduct of Frank David Rees violated Model Rule 1.4(b), Count B.2 of the Complaint, in that if Mr. Rees had advised Teahna Mooney (now Goodson) on or after January 30, 2004, that he had accepted legal employment, even temporarily, of Emerson George, a necessary and critical party defendant in the lawsuit Rees was about to file for her, that this new representation would cause Rees to have a conflict of interest between Ms. Mooney and Mr. George, and that Rees[’s] representation of Mr. George would likely cause major problems for Ms. Mooney[’s] litigation, and that Rees would not be able to give his full loyalty to |9Ms. Mooney in her matter under these circumstances, she would have had an opportunity in early 2004 and thereafter to consider employing other counsel to represent her and receive the loyal representation to which she was entitled. Model Rule 1.4(b) requires that a lawyer shall explain a matter to the extent reasonable necessary to permit the client to make informed decisions regarding the representation.
4. By a unanimous vote, the conduct of Frank David Rees violated Model Rule 1.7(a), Count C.l of the Complaint, in that his acceptance of the representation of Emerson George in late January 2004 in the matter involving George[’s] wife was directly adverse to Rees[’s] representation commenced months earlier in August 2003 of Teahna Mooney, which would eventually involve interests directly adverse to those of Emerson George. Teahna Mooney was not told in early 2004 of Rees[’s] new representation of Emerson George and therefore could not and did not consent to Rees[’s] representation of Mr. George while Rees also represented Ms. Mooney. Rees could not have reasonably believed his representation of Ms. Mooney would not adversely affect his relationship with Mr. George, also Rees[’s] client, as Rees would almost surely have to sue Mr. George to maintain a cause of action against his employer, Sonrise Shuttle, the owner of the vehicle he was driving and in which Ms. Mooney was injured. Model Rule 1.7(a) provides that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation.
5.By a unanimous vote, the conduct of Frank David Rees violated Model Rule 1.7(b), Count D.l of the Complaint, in that he could not adequately and loyally represent Emerson George at the same time Rees represented Teahna Mooney, as his representation of and responsibility to Ms. Mooney materially limited his ability to fairly and independently represent Mr. George in his matter. Mr. George was not informed by Rees at the time in late January 2004 of Rees[’s] prior representation of Teahna Mooney and therefore George could not and did not consent to Rees[’s] representation of George[’s] interests while Rees still represented Ms. Mooney. Rees could not continue to represent Emerson George at the same time he represented Teahna Mooney, as Rees[’s] representation of and responsibility to Ms. Mooney materially limited his ability to fairly and independently represent Mr. George, as Rees would soon be required to sue George in behalf of Mooney. Model Rule 1.7(b) provides that a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation.
6. By a unanimous vote, the conduct of Frank David Rees violated Model Rule 1.7(b), Count D.2 of the Complaint, in that Mr. Rees could not continue to | inrepresent Emerson George at the same time he represented Teahna Mooney, as Rees[’s] representation of and responsibility to Ms. Mooney materially limited Rees[’s] ability to fairly and independently represent Mr. George, as Rees would soon be required to sue George in behalf of Mooney. Model Rule 1.7(b) provides that a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation.
7. By a unanimous vote, the conduct of Frank David Rees violated Model Rule 1.7(b), Count D.3 of the Complaint. There was no informed consent by Ms. Mooney after consultation. Model Rule 1.7(b) provides that a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation.
8. By a unanimous vote, the conduct of Frank David Rees violated Model Rule 1.8(e), Count E.l of the Complaint, in that Mr. Rees arranged for and participated in the provision of financial assistance, an apartment provided by his brother during the pendency of her litigation while Rees was her lead attorney, to his client Teahna Mooney that was prohibited by ethical rule. His brother Robert Rees[’s] firm provided Ms. Mooney an apartment at $700 per month rental from August 2008 to some date in late 2005, based on a Note she signed on August 26, 2003, that was understood by all involved, including David Rees, would be paid when she obtained a recovery in the litigation he was handling for her at the time. David Rees referred Ms. Mooney to his brother for this purpose. When her suit was concluded and recovery realized, a negotiated sum of $15,000 was paid to Robert Rees for the apartment she used, while others who provided Ms. Mooney services that were not prohibited as financial assistance, such as health care providers, went unpaid. Model Rule 1.8(e) provides that a lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
9.By a unanimous vote, the conduct of Frank David Rees violated Model Rule 1.8(e), Count E.2 of the Complaint, in that on August 26, 2008, the date David Rees signed her up as a client, Regions Bank of Jonesboro made a personal loan to Teahna Mooney, account # 0021072, in the principal amount of $7,575.00, at 5.595% APR, due August 5, 2004. $7,500.00 in loan proceeds were issued to her in a lender check. This loan was personally guaranteed by David Rees. Ms. Mooney had never done business with Regions Bank prior to this occasion. She was unemployed and had Inno foreseeable means of assets with which to repay this loan. Guaranteeing this loan was financial assistance to a Rees client prohibited by Rule 1.8(e). Model Rule 1.8(e) provides that a lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
10. By a unanimous vote, the conduct of Frank David Rees violated Model Rule 1.8(e), Count E.3 of the Complaint, in that the Regions Bank loan, with account # 0023764, to Teahna Mooney for personal purposes was renewed or refinanced on August 24, 2004, in the principal amount of $7,675.00, at 15.404% APR, due January 15, 2005. This loan was personally guaranteed by David Rees. $7,575.00 of this loan was used to pay Ms. Mooneyfs] previous loan, account # 0021072. Guaranteeing this loan by Mr. Rees was financial assistance to his client prohibited by Rule 1.8(e). Model Rule 1.8(e) provides that a lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
11. By a unanimous vote, the conduct of Frank David Rees violated Model Rule 1.8(e), Count E.4 of the Complaint, in that on August 30, 2004, Rees Law Firm cheek #44745 for $438.40 was issued to Regions Bank to pay the interest on Ms. Mooney[’s] loan there, account # 0023764. Paying Mooneyf’s] interest on this loan was financial assistance to a Rees client prohibited by Rule 1.8(e). Model Rule 1.8(e) provides that a lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
12.By a unanimous vote, the conduct of Frank David Rees violated Model Rule 1.8(h), Count F.l of the Complaint, in that on September 22, 2004, the trial court entered the order substituting Arlon Woodruff for Rees as attorney for Teahna Mooney in her litigation against Sonrise. Prior to that date, and specifically on or about September 20, 2004, either Rees or his agent and attorney for that purpose obtained a general release of liability from Rees[’s] client, Teahna Mooney, for any and all claims she may have had against Rees and his law firm arising out of the lawsuit in which Rees represented her, including claims for sexual harassment, assault and battery and outrage, in exchange for a payment of $1,000 at the time, later increased to $4,000. Rees did not advise Ms. Mooney in writing that independent legal | ^representation for her was appropriate in connection with the Release he caused to be presented to her and which she executed, under duress. Model Rule 1.8(h) provides that a lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.
13. By a unanimous vote, the conduct of Frank David Rees did not violate Model Rule 8.4(c), Count G.l of the Complaint.
14. By a unanimous vote, the conduct of Frank David Rees did not violate Model Rule 8.4(c), Count G.2 of the Complaint.
15. By a unanimous vote, the conduct of Frank David Rees did not violate Model Rule 8.4(c) Count G.3 of the Complaint.
16. By a unanimous vote, the conduct of Frank David Rees did not violate Model Rule 8.4(c), Count G.4 of the Complaint.
17. By a unanimous vote, the conduct of Frank David Rees did not violate Model Rule 8.4(c) Count G.5 of the Complaint.
18. By a unanimous vote, the conduct of Frank David Rees violated Model Rule 8.4(d), Count H.1 of the Complaint, in that Mr. Rees’s legal maneuvers in the Mooney v. Sonrise case to try to get Emerson George out of the case as a defendant necessitated additional court time and effort to thereafter correct and resolve the problem Rees created that almost cost Ms. Mooney her case against Sonrise, after Rees obtained an order of voluntary non-suit with prejudice by Ms. Mooney as to Mr. George on September 8, 2004. Model Rule 8.4(d) requires that a lawyer shall not engage in conduct that is prejudicial to the administration of justice. Mr. Rees admitted a violation of Model Rule 8.4(d).
19. Having found a violation of Rule 8.4(d), in Count H.1 of the Complaint, the panel did not vote separately on Count H.2.
Based on these findings, and as already noted, the Committee suspended Mr. Rees’s law license for thirty days, to be served consecutively with a forty-two-day suspension previously ordered. In addition, Mr. Rees was ordered to pay $676.60 in costs.
Mr. Ligón now appeals the order of the Committee. Pursuant to section 12(B) of the Procedures, our standard of review when reviewing a decision of the Committee is de novo |1son the record. See also Jenkins v. Ligon, 2010 Ark. 24, 2010 WL 199649. A de novo review on the record determines whether the factual findings were clearly erroneous, or whether the result reached was arbitrary or groundless. See Stilley v. Supreme Court Comm. on Prof'l Conduct, 370 Ark. 294, 259 S.W.3d 395 (2007). Due deference is given to the Committee’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. See id. However, conclusions of law are given no deference on appeal. See id. The Committee’s findings of fact will not be reversed unless the findings are clearly erroneous, and the action taken by the Committee will be affirmed unless it is clearly against the preponderance of the evidence. See id.
I. Thirty-Day Suspension
Mr. Ligón argues as his first point on appeal that the Committee’s thirty-day suspension of Mr. Rees’s law license was disproportionate to his conduct. He contends that the Committee properly dealt with many of the allegations, but urges that Mr. Rees’s unwanted sexual advances against Ms. Mooney should be an ethical violation as well. Mr. Ligón then proceeds to develop for this court two matters that he considers to be further evidence of Mr. Rees’s past sexual exploits. While acknowledging that this court did not adopt a specific prohibition against a lawyer having sexual relations with a client until May 1, 2005, and that Mr. Rees’s conduct in the instant case had to be charged using a combination of several then-existing rules, Mr. Ligón contends that Mr. Rees’s conduct requires a much more substantial sanction than he received to deter him and other attorneys |14from engaging in such egregious behavior with vulnerable clients. Mr. Ligón concludes that this court should impose a more appropriate sanction based on Mr. Rees’s sexual exploits and suggests a sanction in line with jurisprudence from another jurisdiction.
Mr. Rees responds that as to the conflict-of-interest violations, there was plenty of evidence to show that his conduct was done mistakenly, rather than intentionally. He further asserts that the Committee’s finding that he did not sufficiently explain the conflicts of interest to his clients does not require a longer suspension, as there was no evidence that his failure to do so caused any harm to either client. Mr. Rees contends that the alleged sexual-harassment incident presented the Committee with a significant factual conflict, which he claims it resolved on the credibility of the witnesses. He further maintains that his compassion for Ms. Mooney led to his financial-assistance violations and that he was required to defend against stale allegations, due to the length of time between his conduct and the filing of the complaint against him. He urges that his violations may have been the product of mistake, negligence, and poor judgment, but they did not involve intentional mis conduct. He finally submits that this court should deem Mr. Ligon’s presentation of matters outside of the record as improper and disregard them, as neither of the matters raised by Mr. Ligón in his brief were presented to the Committee.
As an initial matter, we will not consider those matters outside of the record and raised by Mr. Ligón regarding alleged prior sexual exploits of Mr. Rees, as those matters were not |1Bbefore the Committee. This court has previously held that an invitation by Mr. Ligón to this court to look outside the record to matters not before the factfinder was improper argument. See Ligon v. Walker, 2009 Ark. 136, 297 S.W.3d 1. While Mr. Ligón attempts to circumvent our prior holding by asking this court to take judicial notice of the alleged prior incidents, we decline to do so. This court’s review, as set forth above, is of the Committee’s decision, which was based on the evidence presented to the Committee by Mr. Ligón. Had he wished to present such evidence in support of the allegations against Mr. Rees, the time to do so was at the hearing before the Committee. This court will not consider new evidence merely because it was not previously known or became available to Mr. Ligón after the Committee’s decision. Accordingly, we reject Mr. Ligon’s attempts to increase Mr. Rees’s sanction based on such evidence.
That being said, we cannot say that the Committee’s sanction of a thirty-day suspension takes into account the seriousness of Mr. Rees’s conduct in the instant case. Pursuant to the Procedures, “[s]us-pension [of a lawyer’s privilege to practice law] is appropriate when a panel of the Committee finds that the lawyer has engaged in ‘serious misconduct,’ and, consonant with the pertinent factors enunciated in Section 19, the nature and degree of such misconduct do not warrant disbarment.” P. Reg. Prof'l Conduct |1fi § 17(E)(2) (2009). “Serious misconduct” is defined by the Procedures as
conduct in violation of the Model Rules that would warrant a sanction terminating or restricting the lawyer’s license to practice law. Conduct will be considered serious misconduct if any of the following considerations apply:
(1) The misconduct involves the misappropriation of funds;
(2) The misconduct results in or is likely to result in substantial prejudice to a client or other person;
(3) The misconduct involves dishonesty, deceit, fraud, or misrepresentation by the lawyer;
(4) The misconduct is part of a pattern of similar misconduct;
(5) The lawyer’s prior record of public sanctions demonstrates a substantial disregard of the lawyer’s professional duties and responsibilities; or
(6) The misconduct constitutes a “Serious Crime” as defined in these Procedures.
P. Reg. Profl Conduct § 17(B). Section 19 of the Procedures sets out the factors that the Committee shall consider in imposing a sanction and includes:
A. The nature and degree of the misconduct for which the lawyer is being sanctioned.
B. The seriousness and circumstances surrounding the misconduct.
C. The loss or damage to clients.
D. The damage to the profession.
E. The assurance that those who seek legal services in the future will be protected from the type of misconduct found.
F. The profit to the lawyer.
G. The avoidance of repetition.
H. Whether the misconduct was deliberate, intentional or negligent.
I. The deterrent effect on others.
J. The maintenance of respect for the legal profession.
K. The conduct of the lawyer during the course of the Committee action.
L. The lawyer’s prior disciplinary record, to include warnings.
M. Matters offered by the lawyer in mitigation or extenuation except that a claim of disability or impairment resulting from the use of alcohol or drugs may not be considered unless the lawyer demonstrates that he or she is successfully pursuing in good faith a program of recovery.
P. Reg. Profl Conduct § 19(A-M).
|wWeighing these factors, it is clear to this court that the Committee’s decision to suspend Mr. Rees’s license for thirty days was clearly against the preponderance of the evidence. We agree with the Committee that Mr. Rees’s actions constituted serious misconduct. Indeed, the Committee found that Mr. Rees committed twelve separate violations of six Rules, specifically, Rules 1.4(b), 1.7(a), 1.7(b), 1.8(e), 1.8(h), and 8.4(d), involving Mr. Rees’s failure to explain matters to Ms. Mooney and Mr. George to the extent reasonably necessary for them to make informed decisions regarding their representation; his representation of Mr. George where that representation was directly adverse to his representation of Ms. Mooney; Mr. Rees’s representation of Mr. George being materially limited by his responsibilities to Ms. Mooney and without Mr. George’s consent to the representation; a lack of consent by Ms. Mooney to the representation of both her and Mr. George; Mr. Rees’s provision of financial assistance to Ms. Mooney in connection with her pending litigation; Mr. Rees’s agreements with Ms. Mooney in exchange for money and without independent representation that limited his liability for malpractice; and Mr. Rees’s non-suit with prejudice of Mr. George, a key defendant in Ms. Mooney’s suit, that was prejudicial to the administration of justice.
Clearly, these actions by Mr. Rees were misconduct that resulted in or were likely to result in substantial prejudice to both Ms. Mooney and Mr. George, thereby constituting serious misconduct. See P. Reg. Profl Conduct § 17(B)(2). In determining the appropriate sanction, it is further evident that such conduct was not of a minor degree and was of a serious 11snature. See P. Reg. Profl Conduct § 19(A). The seriousness of the misconduct was indeed high, where Mr. Rees took actions to dismiss a key defendant in Ms. Mooney’s lawsuit even after he realized a conflict. See P. Reg. Profl Conduct § 19(B). Such conduct damaged Ms. Mooney to the extent that her subsequent attorney had to remedy such damage to preclude a dismissal of her lawsuit. See P. Reg. Profl Conduct § 19(C). In addition, Mr. Rees’s conduct clearly requires a sanction sufficient to assure that any future clients would be protected from such conduct, avoid repetition of such conduct, deter other members of the Bar from engaging in such conduct, and maintain respect for the legal profession. See P. Reg. Profl Conduct § 19(E, G, I, J).
In light of all of these considerations, we hold that his sanction should be modified to a one-year suspension, with credit for the thirty days he has already served. We turn, then, to the claims of Mr. Ligón regarding the Committee’s failure to find certain violations.
II. Alleged Rule Violations
A. Violation of Rule 8.4(c) by failing to disclose conflicting representation
For his second point on appeal, Mr. Ligón argues that the Committee clearly erred in not finding that Mr. Rees’s failure to disclose to Mr. George his representation of Ms. Mooney constituted conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(c). Mr. Ligón claims that Mr. Rees knew or was charged with the knowledge and requirement that he disclose to Mr. George that he was already representing Ms. Mooney in a suit against Mr. George and that Mr. Rees’s claim that he forgot was not 119credible under the circumstances. Mr. Rees counters, stating that while his conduct may have been a mistake, an error, or in poor judgment, it did not involve dishonesty, fraud, deceit, or misrepresentation. He claims that he did not attempt to conceal the conflict in representation once he became aware of it and that he informed both Ms. Mooney and Mr. George upon that realization. Thus, he asserts, Mr. Ligon’s allegations of fraud and deceit do not hold true.
After reviewing the record, we cannot say that the Committee’s failure to find a violation of Rule 8.4(c) based on Mr. Rees’s failure to inform Mr. George of his representation of Ms. Mooney was clearly erroneous. Rule 8.4(c) provides that “[i]t is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Model Rule of Profl Conduct 8.4(c). Here, Mr. Ligón points this court to the evidence and testimony before the Committee that he believes supports the finding of a violation. However, as set forth above, this court gives due deference to the Committee’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. See Stilley, supra. Whether Mr. Rees’s misconduct in failing to inform Mr. George of his conflict was dishonest, fraudulent, deceitful, or a misrepresentation would be a determination based on the weight of the evidence and the credibility of the witnesses. Thus, we are unable to say that the Committee clearly erred in finding no violation of the rule. See, e.g., Ligon v. Newman, 365 Ark. 510, 231 S.W.3d 662 (2006) (holding, in a disbarment proceeding, that the issue of whether the attorney’s misconduct was a violation of Rule 8.4(c) was one based on the special judge’s assessment of the credibility | pnof witnesses, and, therefore, the court could not say that the finding of a violation of the rule was clearly erroneous).
B. Violation of Rule 8.4(c) by failing to disclose material conflict
Mr. Ligón next argues that the Committee clearly erred in not finding a violation of Rule 8.4(c) where Mr. Rees engaged in deceit or misrepresentation by failing to disclose to Ms. Mooney the material conflict in her representation by accepting Mr. George as a client. Again, Mr. Ligón points to what he believes are discrepancies in the testimony, which he contends support a violation of the rule.
Mr. Rees responds that there was plenty of evidence on which the Committee could base a finding that he did not know of the conflict in representation until Mr. George was served and notified him, which if true, involved no fraud, deceit, dishonesty, or misrepresentation. He further asserts that the Committee had the right and the duty to resolve any conflicts in the testimony.
As was the case with the prior point, the evidence and testimony were before the Committee, and we give deference to the Committee’s superior position to determine the credibility of the evidence and the weight it is to be accorded. See Donovan v. Supreme Court Comm. on Prof'l Conduct, 375 Ark. 350, 290 S.W.3d 599 (2009). Whether Mr. Rees’s actions in failing to disclose his representation of Mr. George to Ms. Mooney were dishonest, fraudulent, deceitful, or a misrepresentation boils down to a determination of the credibility of the witnesses. As the finder of fact, the Committee must be free to believe or disbelieve |2ithe witnesses who appear before it when their testimony is conflicting. See Muhammed v. Arkansas Supreme Court Comm. on Prof'l Conduct, 291 Ark. 29, 722 S.W.2d 280 (1987). Accordingly, we hold that the Committee did not clearly err in failing to find a violation of Rule 8.4(c) on this basis.
C. Violation of Rule 8.4(c) by accepting a fee from Ms. Mooney
For his fourth point on appeal, Mr. Ligón asserts that the Committee clearly erred in not finding a violation of Rule 8.4(c) where Mr. Rees accepted a fee for his representation of Ms. Mooney after he had paid her monies for releasing him from liability for his actions. He contends that such actions were misguided and placed his interest above that of his client’s, rendering the conduct dishonest, fraudulent, deceitful, and a misrepresentation in violation of the rule. Mr. Rees responds that there is no evidence that he was involved in any fraud or misrepresentation in the disbursement of Ms. Mooney’s funds, including the fee paid to him.
Again, we cannot say that the Committee clearly erred in finding no violation. While Mr. Ligón is correct that Mr. Rees’s actions in accepting the fees may have been misguided, such does not equate to dishonest, fraudulent, deceitful, or misrepresenting conduct. Where Mr. Rees was retained by Ms. Mooney and performed legal services on her behalf, albeit that the quality of that service was indeed questionable, we simply cannot say that it was dishonest, fraudulent, deceitful, or a misrepresentation for Mr. Rees to accept a fee so as to violate the rule. We, therefore, hold that the Committee did not clearly err in fading to find a violation [ gaof Rule 8.4(c) on this basis.
D. Violation of Rule 1.2(a) by not abiding by Ms. Mooney’s objectives of representation
Mr. Ligón further argues that the Committee clearly erred in not finding a violation of Rule 1.2(a) where Mr. Rees accepted employment by Mr. George in contravention of Ms. Mooney’s objective of representation that he would be loyal to her. He maintains that the “key part of the alleged conduct” was Mr. Rees’s “legal maneuvering” to avoid the conflict by non-suiting with prejudice Mr. George from her lawsuit.
Mr. Rees responds that Ms. Mooney’s objective was to recover money for her personal injuries, an objective that was ultimately met when she obtained a $260,000 verdict. He contends that Mr. Ligón is trying to “fit the square peg of the conflicts issue into the round hole of Rule 1.2(a).”
We agree with Mr. Rees. The conduct alleged simply does not fit within the rule. Rule 1.2(a) provides, in pertinent part, that
[a] lawyer shall abide by a client’s decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter.
Model Rule of Profl Conduct 1.2(a). Here, Mr. Ligón contends that Ms. Mooney’s objective of representation was that Mr. Rees would be loyal to her and her case. It was not.
“Loyalty is an essential element in the lawyer’s relationship to a client.” See Comment, Model Rule of Profl Conduct 1.7. However, being an element to the attorney-client relationship does not render loyalty an objective of representation. It is clear from the record | Mthat Ms. Mooney obtained Mr. Rees’s legal services with the objective of pursuing a personal-injury claim for injuries she received as a result of a motor-vehicle accident. An attorney’s loyalty and the avoidance of a conflict of interest are not a client’s objectives of representation; they are an attorney’s ethical obligations under the Rules. See Model Rule of Profl Conduct 1.7; see also Comment, Model Rule of Profl Conduct 1.7. Because it was not an objective of Ms. Mooney’s representation that Mr. Rees be loyal to her, we hold that the Committee did not clearly err in finding no violation of Rule 1.2(a) on this basis.
E. Violation of Rule 1.2(a) by not abiding by Ms. Mooney’s objective of representation
Mr. Ligón, for his sixth point on appeal, argues that the Committee clearly erred in finding no violation of Rule 1.2(a) where it was not Ms. Mooney’s objective of representation that Mr. Rees would make unwanted sexual advances toward her, requiring her to release any claims she might have had against Mr. Rees in exchange for $4000. He contends that the clear weight of the evidence is that unwanted sexual advances to Ms. Mooney were made by Mr. Rees and that such was a violation of Rule 1.2(a).
Mr. Rees disputes these contentions, asserting that Mr. Ligón is again trying to use Rule 1.2(a) in an inapplicable context. He avers that the Committee was in the superior position to weigh the evidence and the credibility of the witnesses, and he further maintains that the logical confines of the rule render Mr. Ligon’s argument a stretch, where, again, the plain objective of Ms. Mooney’s representation was to obtain a monetary recovery.
Mr. Rees is again correct; Rule 1.2(a) is simply inapplicable in this context. Indeed, | ¡.¿whether unwanted sexual advances were made by Mr. Rees was a determination to be made by the factfinder. But, moreover, the objective of Ms. Mooney’s representation, as already stated, was the pursuit of a personal-injury judgment for injuries she received as a result of a motor-vehicle accident. It had nothing to do with whether unwanted sexual advances were or were not made. For this reason, we cannot say that the Committee clearly erred in not finding a violation of Rule 1.2(a) on this basis.
F. Committee’s failure to rule on allegation
For his final point on appeal, Mr. Ligón contends that he proved Count H.2, which alleged that Mr. Rees’s nonsuit of Mr. George from Ms. Mooney’s lawsuit necessitated additional court time by causing a continuance of the previously scheduled trial date after the circuit court set aside the nonsuit, in violation of Rule 8.4(d). He contends that because the Committee found a violation of the rule as to Count H.l, it erred when it did not specifically vote on the second and separate allegation in Count H.2. For this reason, he asks this court to now enter a de novo judgment on that allegation.
Mr. Rees responds that this court should not render judgment on that allega tion, for two reasons: (1) because Mr. Ligón failed to preserve the matter for appeal and waived the matter by not raising the Committee’s failure to vote to the Committee and obtaining a ruling thereon, and (2) because an original decision by this court as to the allegation would be inconsistent with the court’s role as a reviewing court. He urges that neither P. Reg. Profl Conduct §§ 11(C) or 12(B) required the Committee to rule on every allegation made by Mr. |2sLigon. In the alternative, Mr. Rees submits that there was insufficient evidence to sustain a violation of the rule on this basis as the evidence demonstrated that Ms. Mooney’s case would not have been ready for trial on the scheduled date even had he not obtained a nonsuit of Mr. George.
Here, the Committee’s order stated that “[h]aving found a violation of Rule 8.4(d), in Count H.l of the Complaint, the panel did not vote separately on Count H.2.” Yet, our review of the record reveals no request by Mr. Ligón, verbal or written, for the Committee to vote or rule on the allegation set forth in Count H.2, following the Committee’s decision at the hearing nor after the issuance of its order. While Mr. Ligón asserts that the Committee was required to rule on the alleged violation pursuant to P. Reg. Profl Conduct §§ 11(C) and 12(B), we do not agree.
Section 11(C) of the Procedures provides, in pertinent part, that
[a]t the end of the [public] hearing, the panel shall hold an executive session to deliberate upon any disciplinary action taken. The findings and decision of the panel shall be announced immediately.
P. Reg. Profl Conduct § 11(C) (2009). We have held that the Procedures are construed using the same canons of construction used in interpreting statutes. See Jenkins v. Ligón, 2010 Ark. 24, 2010 WL 199649. The first rule is to give the words their ordinary and accepted meaning in common language. See id. Applying this rule, section 11(C) merely requires that the panel of the Committee deliberate and immediately announce its findings and decision. Its plain language |2⅜ in no way requires the panel of the Committee to vote on every allegation.
Nor does the plain language of section 12(B) permit this court to rule on the merits of an alleged violation where the Committee has failed to do so. Section 12(B) of the Procedures provides that
[a]ppeals from any action by a panel after [a] hearing shall be heard de novo on the record and the Arkansas Supreme Court shall pronounce such judgment as in its opinion should have been pronounced below.
P. Reg. Profl Conduct 12(B) (2009). The plain language of section 12(B) renders the instant matter an appeal. We have held, in appeals in both the civil and criminal context, that an appellant’s failure to obtain a ruling from the factfinder precludes our appellate review. See, e.g., Simpson Housing Solutions, LLC v. Hernandez, 2009 Ark. 480, 847 S.W.3d 1 (holding that this court will not address an argument on appeal if a party has failed to obtain a ruling below); Kelley v. State, 375 Ark. 483, 292 S.W.3d 297 (2009) (holding that appellant’s failure to obtain a ruling at the trial level, even on a constitutional issue, precluded review on appeal). While attorney-discipline proceedings are neither civil nor criminal, but sui generis, see P. Reg. Prof'l Conduct § 1(C), the instant action is an appeal from a factfinder’s decision per mitted by the Procedures, and the requirement to obtain a ruling below equally applies. Accordingly, because Mr. Ligón failed to obtain a ruling from the Committee on his allegation set forth in Count H.2 of the complaint, we are precluded from reviewing Mr. Ligon’s argument on appeal.
li>7For all of the foregoing reasons, we affirm the Committee’s findings, and we modify Mr. Rees’s suspension in this case to one year, with credit given for thirty days already served.
Affirmed; Sanction modified to one-year suspension with credit for thirty days already served.
BROWN, J., concurs.
. This appeal is one of four involving Mr. Rees, submitted to this court for decision and handed down this same day. See Ligon v. Rees, 2010 Ark. 223, 364 S.W.3d 19 (No. 09-555); Ligon v. Rees, 2010 Ark. 226, 364 S.W.3d 7 (No. 09-559); Ligon v. Rees, 2010 Ark. 227, 364 S.W.3d 1 (No. 09-560).
. The Model Rules were in effect prior to May 1, 2005, when the current Arkansas Rules of Professional Conduct went into effect pursuant to an order of this court. See In re Arkansas Bar Assoc. — Petition to Revise the Arkansas Rules of Professional Conduct, 361 Ark. App’x 451 (per curiam).
. Mr. Rees stated:
I personally did not lend [Ms. Mooney] money which obviously would have been providing financial assistance. Although a personal guarantee is not actually the same as providing money to a client, and I know of no case law defining "financial assistance," it is a reasonable interpretation to conclude that providing a personal guarantee is financial assistance.
. The record reflects no notice of appeal filed by Mr. Rees in this case.
. Specifically, Mr. Ligón asks this court to take into account information derived from this court's decision in Rees v. Smith, 2009 Ark. 169, 301 S.W.3d 467, and a 2007 deposition of Mr. Rees, given in another matter. It appears that Mr. Ligón seeks this court's consideration of the material as evidence that Mr. Rees engaged in sexual relationships with two other clients.
. While not relevant in the instant case because the Committee’s findings were unanimous, section 11(C) also requires that if not unanimous, the votes of the .individual members shall be announced. | [
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JOSEPHINE LINKER HART, Judge.
|,The White County Circuit Court entered a summary judgment that construed an agreement between appellant Wade Roetzel and appellee Troy Coleman to be an option that Roetzel failed to exercise. The court also found that Coleman failed to prove his damages. The appeal and cross-appeal challenge those rulings. We affirm on direct appeal and on cross-appeal.
Coleman is the owner of certain real property containing over 1,1.00 acres located in White County. On February 1, 2004, the parties entered into an agreement, titled “CONTRACT OF SALE,” that provided, in pertinent part, as follows:
1. For the consideration and purposes herein set forth, SELLER [Coleman] does hereby let, PURCHASE ON
CONTRACT and demise unto SALE the ^following described real property situated in White County, Arkansas to wit: [description follows.] Pipeline easement for gas and water pertaining to ground, all farm programs and bases in Bald Knob, Arkansas and or as shown in Exhibit A, Located in White County on Sections 3, 10, 11, 22, 28, 27 Arkansas, Wfiiite County.
2. The term of this CONTRACT shall be for 3 years commencing February 1st 2004 but can be terminated either by the SELLER or BUYER under the terms and conditions set forth hereinafter. SELLER grants BUYER the option and right to purchase (OUTRIGHT) the above described real property for the purchase price of $1,033,375.00, ($1,033,375.00 less $100,000.00 down) @6.0% interest. BUYER shall have the right to exercise said option to purchase or sell any part at anytime so long as SELLER agrees to the price, during the term of the CONTRACT. BUYER agrees to apply for any programs for the purpose of improving the land and agrees to sign off any programs that BUYER may ask for as long as BUYER and SELLER agrees (such government programs, private mediation, etc.). BUYER shall give to SELLER a minimum of thirty (30) days written notice of BUYER’S intention to exercise their option to purchase the above described real property.
4. If BUYER breaches any of the terms and conditions of this CONTRACT other than the payment of the CONTRACT, and if after ninety (90) days written notice, BUYER fails to correct said breach or deficient condition, said CONTRACT shall automatically terminate. In the event BUYER fails to pay the CONTRACT, and after ninety (90) days written notice BUYER does not cure such default within said ninety (90) day period, said CONTRACT shall automatically terminate at the end of said ninety (90) day period.
5. SELLER agrees to accept and BUYER agrees to pay as CONTRACT for said property the sum of $30,000.00 per year plus 25% of the crop yield, not to exceed $100,000.00 total, payable after January 1, 2004 but before December 31, 2004, continuing the same for the length of the CONTRACT, with the entire amount going to loan. BUYER shall be required upon execution of the CONTRACT to deposit the sum of $100,000.00 with SELLER as a security deposit to insure that BUYER shall comply with all of the terms and provisions of this agreement including the payment of CONTRACT.
|314. If BUYER shall fail or refuse to pay the PAYMENTS aforesaid at the time and in the manner set forth herein, or to do or perform any other of the covenants on the part of the BUYER herein contained, or shall violate in any particular any of the conditions hereof, SELLER may, at his option and in accordance with the aforesaid notice requirements, declare this CONTRACT terminated, and shall have the right to enter upon and take possession of the property and premises and to evict and expel the BUYER, or his agents, or representatives from said property, with possible prejudice to any rights which SELLER may have.
On July 8, 2005, Coleman hand delivered a notice to Roetzel cancelling the agreement. The notice also asserted that certain unspecified sums, including interest to date and expenses for fertilizer and repairs to a well, were due immediately. The notice further provided that, if Roetzel agreed to the immediate cancellation of the contract, these sums would be forgiven.
On July 21, 2006, Roetzel executed an affidavit stating that he and his wife sent notice to Coleman on that same day exercising the option to purchase the property. This affidavit was recorded in the land records.
On July 5, 2007, Coleman filed the complaint in this action, alleging that Roetzel never performed his obligations under the agreement and that Roetzel owed approximately $30,000 in expenses for farming operations advanced by Coleman. The complaint alleged that the agreement was an option that was not binding upon Coleman because of inconsistent terms, poor draftsmanship, and a lack of objective intent of Roetzel to enter into the agreement. The complaint further alleged that Coleman cancelled the agreement, but Roetzel continued to assert an interest in the property. The complaint prayed that title to the real Lproperty be quieted in Coleman and sought damages for the unpaid expenses and attorney’s fees Coleman incurred in a bankruptcy case filed by Roetzel.
Roetzel filed a pro se response in which he denied the material allegations of the complaint. Through counsel, Roetzel amended his response to assert the affirmative defenses of payment, waiver, estop-pel, and setoff. Roetzel also filed a pro se counterclaim denominated as a “Complaint for Specific Performance” in which he sought to have a third party, Darrell Murray, pay off the balance owed on the property. Coleman denied the material allegations of the counterclaim and asserted the defense of laches.
On July 16, 2008, Coleman filed his motion for summary judgment in which he argued that the agreement was so poorly drafted by Roetzel that there was never a meeting of the minds for a contract for sale and, therefore, title to the property should be quieted in Coleman. In the alternative, Coleman argued that, if there was a contract for sale, Roetzel breached the contract; was given notice of the breach; and failed to remedy the breach. This, according to Coleman, resulted in the forfeiture of any rights Roetzel had under the contract.
Roetzel responded to the motion by asserting that the agreement was an installment land contract, and that there was no ambiguity. He also asserted that Coleman had waived any breach of the agreement by accepting payments, both before and after the notice of cancellation.
The circuit court initially denied the motion for summary judgment, finding that there were factual disputes that must be determined. However, on September 5, 2008, after another | shearing, the court issued its order granting the motion for summary judgment. The court found that the agreement was an option for Roetzel to purchase the property from Coleman. The court found that there were three methods by which Roetzel could exercise the option and purchase the property. These methods included paying the full purchase price in cash or paying $100,000 at the time of execution of the agreement or by paying $30,000 at the time of execution, with the balance to be paid by December 31, 2004. The court found that the $100,000 was consideration for the option and that Coleman was not bound until Roetzel had paid the $100,000, which was not done. The court also found that the agreement was neither a lease nor a contract for sale. The court concluded that the option terminated on February 2, 2007, at the latest. Neither party was found to have proven its damages. The court concluded that Coleman was entitled to have title quieted in himself and the court dismissed Roetzel’s counterclaim for specific performance. The parties timely filed notice of appeal and notice of cross-appeal.
Before we address the merits of the appeal and cross-appeal, we first take up Coleman’s argument that the direct appeal should be dismissed because we do not have appellate jurisdiction. This argument is based on Roetzel’s failure to strictly follow the requirements of Rule 5 of the Arkansas Rules of Appellate Procedure—Civil. Citing Clark v. Tobias, 368 Ark. 591, 247 S.W.3d 886 (2007), for the proposition that compliance with Rule 5 must be “strict,” Coleman asserts that this appeal must be dismissed because Roetzel failed to follow the procedures specified in the rule for securing an extension of time to prepare the trial ^transcript, which makes its filing untimely. Specifically, Coleman argues that Rule 5 was not followed in that it was the court reporter, not Roetzel, who sought the extension of time to complete the record. We decline to dismiss this appeal.
In Holloway v. Arkansas State Board of Architects, 348 Ark. 99, 71 S.W.3d 563 (2002), also a case where the court reporter sought the extension of time, the supreme court held that an ap-pellee may not challenge the appellant’s failure to strictly comply with Rule 5 after a transcript has been lodged within the time granted by the circuit court. That is exactly the situation here. On December 19, 2008, the circuit court entered an order extending the time to file the record until February 19, 2009. The record was filed on February 15, 2009. It was not until May 20, 2009, that Coleman filed his motion to dismiss the appeal. We therefore consider the appeal on the merits.
This court’s standard of review for a summary judgment is well settled:
[Sjummary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts.
Greenwood v. Anderson, 2009 Ark. 360, at 3, 324 S.W.3d 324, (quoting Verdier v. Verdier, 364 Ark. 287, 289-90, 219 S.W.3d 143, 144 (2005)).
Roetzel first argues that the circuit court erred in granting summary judgment because the agreement was ambiguous and it was for a jury to determine the nature of the agreement. We disagree.
When a contract is free of ambiguity, its construction and legal effect are questions of law for the court to determine. Roberts Constr. Co. v. Valentine-Wooten Rd. Pub. Facility Bd., 2009 Ark.App. 437, 320 S.W.3d 1. When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. Fryer v. Boyett, 64 Ark.App. 7, 978 S.W.2d 304 (1998). However, when ambiguous language is used in the contract, other rules apply. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Roberts Constr. Co., supra. The determination of whether ambiguity exists is ordinarily a question of law for courts to resolve. Id. The court may also interpret an ambiguous contract as a matter of law when the ambiguity can be resolved by reference to the contract language itself. See Zulpo v. Farm Bureau Mut. Ins. Co., 98 Ark.App. 320, 255 S.W.3d 494 (2007). But, when a contract is ambiguous as to the intent of the parties, and the meaning of the language depends on disputed extrinsic evidence, the issue is a question of fact for the jury. Perry v. Baptist Health, 358 Ark. 238, 189 S.W.3d 54 (2004); see also Minerva Enters., Inc. v. Bituminous Cas. Corp., 312 Ark. 128, 851 S.W.2d 403 (1993).
The circuit court could properly conclude from the plain language of the agreement between the parties that the agreement was an option, rather than a contract for sale. Our supreme court has distinguished between an option and a contract for sale as follows:
The distinction between an option and a contract of sale or lease is broad and plain. An option is an unaccepted offer. It states the terms and conditions on which the owner is willing to sell or lease his land, if the holder elects to accept them within the time limited. If the holder does so elect, he must give notice to the other party, and the accepted offer thereupon becomes a valid and binding contract. If an acceptance is not made within the time fixed, the owner is no longer bound by his offer, and the option is at an end. A contract of sale or lease fixes definitely the relative rights and obligations of both parties at the time of its execution. The offer and acceptance are concurrent, since the minds of the contracting parties meet in the terms of the agreement.
Bonanza Mining & Smelter Co. v. Ware, 78 Ark. 306, 314, 95 S.W. 765, 768 (1906) (quoting McMillan v. Philadelphia Co., 159 Pa. 142, 28 A. 220 (1893)). See also Indiana & Arkansas Lumber & Mfg. Co. v. Pharr, 82 Ark. 573, 102 S.W. 686 (1907). Our supreme court has also explained that
an option is not a sale. It is not a contract by which one agrees to sell and the other to buy. It is only an offer by one to sell within a limited time and a right acquired by the other to accept or reject such offer within such time. When this privilege is exercised by acceptance, then and not until then does it become a contract of sale.
Swift v. Erwin, 104 Ark. 459, 465, 148 S.W. 267, 269 (1912). In the present case, there is no obligation on Roetzel to purchase the property. Although Roetzel goes through the agreement paragraph by paragraph and discusses how the language may support the | ^interpretation that the agreement is a contract for sale, nowhere does Roetzel point to any obligation on his part to purchase the property. The only obligation the agreement imposed upon Roet-zel was the payment of $100,000 by December 31, 2004, as consideration for the option, which the circuit court found was not done. Roetzel does not otherwise argue that he exercised his option, and we will not make an argument for him. See Yarborough v. Arkansas Dep’t of Human Servs., 96 Ark.App. 247, 240 S.W.3d 626 (2006).
Where the issue of ambiguity may be resolved by reviewing the language of the contract itself, it is a circuit court’s duty to make such a determination as a matter of law. Zulpo, supra. Because the nature of the agreement could properly be determined as a matter of law, the circuit court did not err in granting summary judgment finding that the agreement was an option.
Roetzel’s second point is that Coleman waived his right to declare a forfeiture by accepting late payments. We cannot address this question because the circuit court never expressly ruled on the issue, which Roetzel admits. Without a ruling from the circuit court, we have no basis for a decision and we are precluded from reviewing Roetzel’s argument on this point. Kralicek v. Chaffey, 67 Ark.App. 273, 998 S.W.2d 765 (1999).
As his sole point on cross-appeal, Coleman argues that the circuit court erred in dismissing his claim for damages. Specifically, he contends that he did not request a ruling on damages as part of his motion for summary judgment, and he had not yet put on his proof as to damages.
110In its order granting summary judgment, the circuit court found that neither party had proved any damages. At the first hearing on the motion for summary judgment, Coleman stated that he was not seeking summary judgment on that issue. He also said that he wanted title quieted and then he would decide whether he would pursue the claim for damages. However, there is no indication that Coleman was reserving the issue of damages at the second hearing or that the circuit court agreed to a reservation of the issue. The issue was submitted to the court without explicit objection. It is the duty of the appellant to make his record and we must resolve all doubts on behalf of the appellee on appeal. See Brown v. Arkoma Coal Corp., 276 Ark. 322, 634 S.W.2d 390 (1982). Moreover, the circuit court construed the option agreement and determined that, under the agreement, Coleman was not entitled to damages. There is no explanation in Coleman’s brief as to why he would be entitled to damages under the agreement when the option was never exercised. Thus, the circuit court properly granted summary judgment as a matter of law.
Affirmed on direct appeal; affirmed on cross-appeal.
GLADWIN and BROWN, JJ., agree. | [
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DAVID M. GLOVER, Judge.
| Appellant, Dwayne Wallis, was convicted by a Lonoke County jury of rape and sexual assault in the second degree. He was sentenced to seventeen years’ imprisonment on the rape conviction and ten years’ imprisonment on the sexual-assault conviction, with the sentences to run consecutively. On appeal, Wallis argues that the trial court erred in not suppressing the statement he gave while in custody because it was involuntary; that the trial court abused its discretion in not granting his request for a bill of particulars; and that the trial court abused its discretion in running his sentences consecutively instead of concurrently. We affirm on the first two issues, but we remand for re-sentencing.
Wallis does not appeal the sufficiency of the evidence to support the convictions; therefore, only a brief overview of the underlying testimony is necessary. The victim in this |2case was Wallis’s step-granddaughter, who testified that from the time she was eleven until she was almost thirteen, Wallis sexually abused her by touching her breasts and genitals, performing oral sex on her, digitally penetrating her vagina with his fingers, and, on one occasion, penetrating her vagina with his penis. Wallis denied these accusations.
Voluntariness of Written Statement
Prior to trial, Wallis filed a motion to suppress the written statement he gave to the Lonoke County Sheriffs Department; this motion was denied. On appeal, Wallis argues that his written statement was not voluntarily given and should have been suppressed because (1) he was not given food or his medications prior to his alleged confession; (2) he has a borderline IQ of 79 and lacked experience in the legal process, which combined to contribute to his inability to comprehend what he was saying or doing; and (3) the time frame in which the interrogation was performed and the statement was given, totaling approximately ten minutes, was “questionably short considering the amount of information that was allegedly relayed.” We affirm on this point.
In Wright v. State, 335 Ark. 395, 407-08, 983 S.W.2d 397, 403 (1998) (citing Davis v. State, 330 Ark. 76, 83-84, 953 S.W.2d 559, 562-63 (1997)) (internal citations omitted), our supreme court set forth the law regarding the voluntariness of a confession:
A custodial confession is presumptively involuntary and the burden is on the State to show that the waiver and confession was voluntarily made. In examining the voluntariness of confessions, this court makes an independent determination based on the totality of the circumstances, and reverses the trial court only if its decision was clearly erroneous.... [T]he inquiry into the validity of the defendant’s waiver has two separate components: whether the waiver was voluntary, and whether the waiver was knowingly and intelligently made. In determining voluntariness, we consider the | .-¡following factors: age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, the repeated and prolonged nature of the questioning, or the use of physical punishment. Other relevant factors in considering the totality of the circumstances include the statements made by the interrogating officer and the vulnerability of the defendant. In addition, the accused must have a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it in order for his waiver to be knowingly and intelligently made.
When there is conflicting testimony on the circumstances surrounding the taking of a custodial confession, it is the trial court’s province to weigh the evidence and resolve the credibility of the witnesses. Id.
Wallis was arrested in Izard County on March 3, 2008, and was then transported to Lonoke County. At the suppression hearing, Deputy Michelle Stracener of the Lonoke County Sheriffs Office testified that she took a statement from Wallis on March 4, 2008; that Wallis was in custody at the time the statement was given; that prior to taking the statement, she advised Walks of his rights by reading them to him; and that Wallis read the statement-of-rights form, initialed it, and signed it. Deputy Stracener stated that she did not notice anything about Wallis mentally that would cause her to think that he did not understand his rights; that he made no complaints to her about any physical problems or any other type of problems; that he did not refuse to cooperate after his rights were read to him; and that Wallis was not coerced or intimidated into signing the rights form. Deputy Stracener testified that she read Wallis his rights around 8:50 a.m., and that it was a very short interrogation because Wallis made his statement at 9:00 a.m. She said that after Wallis signed the rights form, they had a discussion about the allegations, that the discussion was voluntary, that she asked Wallis 14if he would write a statement, and that he agreed to do so. She said that she did not force Wallis to write the statement; that Walks wrote the statement himself; that he did not seem to have any trouble writing the information on the form or understanding where to put the information on the form; and that she did not correct his spelling or change his writing in any way, although she did ask what certain words were because she did not understand them as he had spelled them. The form for the written statement asked for the name of the person making the statement, as well as his address, telephone numbers, date of birth, and social security number, all of which Walks provided. The entirety of Wallis’s written statement was
Stacy Bailey came to me for comfort she was cousis about sex she want to kiss she let me touch her breasts several time she wanted me to touch her vagina several time we tried intercourse but it would go in and I stopped.
4345 Hwy 236W Lonoke
Stacey would come to my camper
Deputy Stracener stated that Wallis’s written statement was consistent with the conversation they had prior to Walks making his written statement.
On cross-examination, Deputy Stracener testified that she thought that at all times during the investigation Walks understood what was going on and was in his right mind, that he never asked to stop and did not complain of any physical or mental problems, and that he was neither forced to make a statement nor promised anything in return for giving his statement. She said that she had no dealings with Wallis prior to 8:50 a.m. on March 4, 2008, when she brought him in and advised him of his rights, and she did not know whether Wallis had eaten anything from 11:30 p.m. on March 3, 2008, until she talked with him the next morning. She acknowledged that the intake form indicated that Wallis had some medical ^conditions such as COPD, high blood pressure, and problems with his back, and she noted that there were no medications listed as having been administered to Wallis. She stated that she did not think it was important to ask a person about his medical condition before taking a statement, and that if the person appeared to be fíne, she would take the statement. She said that had she noticed something that would have caused her to believe Wallis was lacking his medication or was unable to cooperate with her, she would not have interviewed him.
Shawnette Kimble, Wallis’s son’s girlfriend, testified that she took Wallis’s medication to the Melbourne Police Department and told an officer about Wallis’s medication regimen in detail, but she did not know if the officer took Wallis’s medication to him or not. She said that Wallis was on heart, diabetes, “mental,” thyroid, and blood-pressure medications. She said that she did not know if Wallis took his medications on the night of March 3. She stated that she did not see Wallis again until March 4; that he was pale and seemed depressed and confused about what was going on; and that he did not seem to understand much. Kimble testified that when they took Wallis to get some fast food, he began complaining of chest pain and coughing a lot, and that they took him to the emergency room, where he was given antibiotics and an inhaler.
On cross-examination, Kimble reiterated that she did not know if Wallis had taken his medication on March 3; that when she saw him on March 4 he seemed confused, pale, and depressed, and that he did not seem to know “what was going on very well.” However, she | fialso stated that part of Wallis’s medical problems were that he had a bad memory and did not remember a lot of things.
Joyce Wallis, Wallis’s sister-in-law, testified that when Wallis was bonded out of jail, he looked pale and disoriented, and that he said he had not eaten anything and did not get his medication.
Dr. Paul Deyoub, a forensic psychologist, testified that upon examination, he found Wallis to have a full scale IQ of 79, with a verbal IQ of 83 and a performance IQ of 79, which was in the borderline or low-average range. Dr. Deyoub said that someone with Wallis’s IQ would be a more concrete thinker with an unskilled work history, but that he would be able to negotiate daily life.
John Barta, a jailer at the Lonoke County Sheriffs Department, testified that the jail kitchen usually closed about 7 p.m., but if people were brought in after that time and requested food, food would be provided for them. He said that he did not have a record of providing any food to Wallis on the night of March 3, but that he would have been given food at 6 a.m. Barta also testified that it was noted that Wallis was offered a snack at 10 a.m. because he was diabetic, but that he refused it. Barta said that there was no record of Wallis having any insulin with him, that it would be impossible for him to have administered insulin if none was there, and that he was not aware that Wallis had received any insulin while in his custody. After hearing the testimony, the trial court ruled that Wallis’s statement was knowingly and voluntarily made.
17Wallis first argues that his written confession was not voluntarily given because he had not received his medication or food prior to his alleged confession. However, the testimony at the suppression hearing was conflicting. Deputy Stracener testified that Wallis made no complaints about his physical or mental health, and that he seemed to be fine or she would not have interviewed him. She said that he seemed to understand his rights, voluntarily initialed and signed the rights form, and voluntarily provided her with a written statement. Although Wallis’s family testified that he seemed pale, confused, and unaware of what was going on when he was released from jail on the afternoon of March 4, the trial court, as the one who makes determinations regarding witness credibility, was not required to believe that testimony.
Wallis next argues that because of his “borderline” IQ, he was unable to comprehend the legal process and his rights associated with the legal process. A low intelligence quotient, in itself, will not render a waiver of the Fifth Amendment privilege against self-incrimination involuntary; other factors to be considered are the defendant’s age, experience, education, background, and length of detention. Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989). Here, while Dr. Deyoub testified that Wallis’s IQ of 79 was borderline low-average, he also testified that a person with that IQ could function in daily life and make adaptations. Wallis was fifty-four years old and disabled at the time he gave his statement. However, he was not interrogated for a lengthy period of time— testimony indicated that the interrogation, including the time it took Wallis to write his statement, was approximately ten minutes.
| sWallis also argues that the short amount of time it took to sign the waiver and write out a confession indicates that his statement was not voluntary. He points to the fact that the written confession had several misspelled words and did not flow coherently, combined with the lack of food and low IQ, as indicators that the written statement was not voluntarily given. However, these factors do not militate against the voluntariness of the written statement. There was testimony that Wallis was served breakfast on the morning of March 4 prior to giving his written statement. The misspellings in the statement are not surprising, as Wallis had an IQ of 79. Furthermore, Wallis was not interrogated for a long period of time; in fact, from the time he was read his rights to the time he wrote his statement was only approximately ten minutes. Looking at the totality of the circumstances in this case, we cannot say that the trial court’s finding that Wallis’s statement was voluntarily, intelligently, and knowingly made was clearly erroneous.
Bill of Particulars
Wallis filed a motion for bill of particulars requesting “as specific as possible a date for the alleged act or acts, either by reference to the calendar or by reference to other events.” The trial court denied this request, and Wallis now contends that this was an abuse of discretion, arguing that he was denied a fair trial and due process because he was not provided with a bill of particulars setting forth the time and circumstances of the alleged criminal offenses. He argues that had the State been able to identify specific dates that criminal activity was alleged to have occurred, he would have been better able to prepare a defense or possibly provide an alibi as to his whereabouts on that date.
| ;,The purpose of a bill of particulars is to inform a defendant of the charge in sufficient detail to prepare a defense. Ark.Code Ann. § 16-85-301(a) (Repl.2005). The trial court, in its discretion, can grant or deny the request for a bill of particulars. Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985). “A bill of particulars as to the precise time the offense was committed need not be granted unless the time is material to the allegation.” Johnson v. State, 292 Ark. 632, 645, 732 S.W.2d 817, 824 (1987). The State was not required to prove specifically when each act of rape or sexual contact occurred, as time is not an essential element of the crimes. Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997). Young victims of sexual abuse can rarely provide the exact time an offense occurred, and any discrepancies in testimony with regard to the date of the offense are for the jury to resolve. Id. The trial court did not abuse its discretion in this matter.
Sentencing
Wallis argues that the trial court erred in running his sentences consecutively instead of concurrently because the decision was based upon what the trial court believed the jury wanted to be done. We hold that this argument is meritorious and remand to the trial court for re-sentencing.
Arkansas Code Annotated section 5-4-403(a) (Repl.2006) provides, “When multiple sentences of imprisonment are imposed on a defendant convicted of more than one (1) offense, ... the sentences shall run concurrently unless, upon recommendation of the jury or the court’s own motion, the court orders the sentences to run consecutively.” The trial court is not bound by the jury’s recommendation with regard to a sentencing option. Ark.Code |inAnn. § 5-4-403(d). Whether sentences should be run consecutively or concurrently is within the sole discretion of the trial court, and exercise of that discretion will not be reversed on appeal unless there is an abuse of that discretion; it is a heavy burden to prove that a trial court did not exercise its discretion in determining whether to run sentences consecutively. Throneberry v. State, 2009 Ark. 507, 342 S.W.3d 269.
We hold that in this case the trial court failed to exercise its discretion. There was no recommendation from the jury regarding whether to run the sentences concurrently or consecutively. After hearing the State’s argument to impose consecutive sentences and the defense’s argument to impose concurrent sentences, the trial court stated that it was going to run the sentences consecutively. Defense counsel then asked the trial court to articulate its reasons for running the sentences consecutively. The trial court responded that the jury had sentenced Wallis to seventeen years for rape and ten years for second-degree sexual assault, and that generally, if the jury had intended anything else, it thought that the jury would have set both sentences at ten years.
In Wing v. State, 14 Ark.App. 190, 686 S.W.2d 452 (1985), this court held that a trial court had failed to exercise its discretion in sentencing when it stated that it would impose consecutive multiple sentences instead of concurrent sentences, noting that had the jury wished otherwise, it would have noted otherwise. This court further held that the trial judge erroneously “attempted to implement what he perceived the jury wanted rather than to exercise his own discretion relative to the sentencing.” 14 Ark.App. at 192, 686 S.W.2d at 454. Here, as in Wing, the trial court, as evidenced by its comments from the bench,_Jjjimplemented what it perceived to be the desire of the jury, when in fact the jury had made no recommendation. We therefore remand to the trial court for re-sentencing, without implying in any way whether Wallis’s sentences should run concurrently or consecutively. Id.
Affirmed in part; remanded in part.
ROBBINS and MARSHALL, JJ., agree. | [
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DONALD L. CORBIN, Justice.
IiAppellant Adam Davis, Jr., appeals the judgment of the Garland County Circuit Court convicting him of the capital murder of his wife Marilyn Davis and the attempted first-degree murder of her friend Velma Davis. As Appellant was sentenced respectively to consecutive terms of life imprisonment without parole and thirty years plus two firearm enhancements of fifteen years each, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1 — 2(a)(2). Appellant asserts five points for reversal. We affirm the judgment of conviction entered pursuant to a jury verdict.
Appellant testified at trial that on June 16, 2007, he was driving his truck on Mal-vern Avenue in Hot Springs when he saw his wife’s car and plowed right into the back of it. He testified that he then exited his truck and shot his wife, Marilyn Davis. He stated he also shot her friend, Velma Davis, who was driving another vehicle in front of his wife’s. Marilyn Davis died as a result of this shooting. Velma Davis survived but suffered injuries. Both Appellant |2and Appellee state in their briefs to this court that Appellant’s intent or state of mind was the central or main issue litigated at trial.
I. Sufficiency of Evidence
Appellant’s first point for reversal is that there was insufficient evidence from which the jury could have convicted him of capital murder and attempted first-degree murder. Specifically, Appellant contends that the State failed to prove that he acted with the requisite mental state for each offense.
The State initially responds that Appellant failed to preserve this argument for our review because his motion for directed verdict was untimely. Specifically, the State contends that rather than renewing his motion at the close of all the evidence, Appellant instead renewed his motion at the close of all testimony but prior to the introduction of several documents and the resting of his case. The State contends this does not meet strict compliance with Rule 33.1 of the Arkansas Rules of Criminal Procedure. In the alternative, the State contends there was sufficient evidence that Appellant acted with the requisite mental state for each offense.
Our review of the record before us reveals the following. At the close of the State’s case, Appellant moved for a directed verdict on the charges of capital murder and attempted first-degree murder, arguing with detail and at length that there was insufficient evidence that Appellant possessed the mental state required for each charge. The circuit court denied the motions as to both charges. Appellant then presented several witnesses, including himself. ^Following Appellant’s testimony, Appellant’s counsel requested a bench conference to discuss the admission of four documents. The circuit court then recessed, with counsel for both sides going into chambers to discuss the documents. The State did not object, and the circuit court stated they would be received into evidence. These documents consisted of a protection order and three complaints for divorce that had been dismissed. Appellant then renewed his motions for directed verdict on both charges. The circuit court denied both motions. The court and counsel for both sides then immediately proceeded to discuss jury instructions. When the proceedings resumed in open court, Appellant introduced each of the four documents individually into evidence in the presence of the jury. With respect to each document, the circuit court stated that it would be admitted and received into evidence as defendant’s exhibits 1 through 4 respectively. Appellant’s counsel published the four exhibits to the jury and stated, “[W]e respectfully rest.” Appellant never renewed his motions for directed verdict after the documents were introduced into evidence, nor did he renew his motions after resting his case. The State announced it had no rebuttal, and the circuit court then announced the evidentiary case was closed and proceeded to instruct the jury.
To preserve a sufficiency-of-the-evidence challenge on appeal, a timely, clear, and specific motion for directed verdict must be made to the trial court. Ark.R.Crim. P. 33.1(c); see Foster v. State, 2009 Ark. 454, 2009 WL 3162291. Rule 33.1 sets out the procedure for making the motion and states in pertinent part:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close |4of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
This court interprets Rule 33.1 strictly. Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002). We have said that the reasoning behind the specificity requirement in Rule 33.1 is that when the specific grounds are stated to the trial court, it can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof. See Foster, 2009 Ark. 454. With respect to the timeliness requirement, this court has said in Cummings v. State, 315 Ark. 541, 546, 869 S.W.2d 17, 20 (1994):
The reason for the rule is obvious. As we stated in Rudd v. State, 308 Ark. 401, 405, 825 S.W.2d 565, 567 (1992):
[A] motion for a directed verdict at the close of the plaintiffs case has as its purpose a procedure for determining whether the plaintiff has met the burden of establishing a prima facie case, with that question to be resolved by the court as a matter of law. In the event the motion is overruled, the defendant may elect to stand on the motion or to go forward with the production of 1 ¿additional evidence, in which case he has waived any further reliance upon the former motion.
A motion for a directed verdict at the close of the entire case is rendered necessary, of course, by virtue of the automatic waiver that occurs when the defendant proceeds to mount a case.
This court has had occasion to rule that a renewal of a motion for directed verdict made after the jury has been charged or instructed is not timely. Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002); Claiborne v. State, 319 Ark. 602, 892 S.W.2d 511 (1995). This court has also had occasion to rule that a renewal of a motion for directed verdict made at the conclusion of the defendant’s case-in-chief followed by a failure to renew after the State presents rebuttal evidence operates as a waiver. Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994). However, we have not previously had before us a case such as the present one where a defendant failed to renew his motion after reopening his own case to admit additional documents into evidence.
We conclude that the reasoning we applied in Christian is likewise applicable here. The plain language of Rule 33.1 requires that the motion be renewed at the close of all the evidence. The failure to do so operates as a waiver of any question relating to the sufficiency of the evidence to support the jury’s verdict. Cummings, 315 Ark. 541, 869 S.W.2d 17. We interpret Rule 33.1 strictly. Grady, 350 Ark. 160, 85 S.W.3d 531; Christian, 318 Ark. 813, 889 S.W.2d 717. Appellant’s failure to renew his motion for directed verdict at the close of all the evidence, after he reopened his case to admit four documents into evidence, therefore | ^operates as a waiver of his challenge to the sufficiency of the evidence to support the jury’s verdict.
II. Manslaughter with Extreme Emotional Disturbance
As his second point for reversal, Appellant contends that the trial court’s refusal to give the proffered instruction for manslaughter with extreme emotional disturbance denied Appellant his constitutional right to present a complete defense. Appellant acknowledges that this court has taken the view that the provocation that incites the extreme emotional disturbance necessary for manslaughter is restricted to an event such as a physical fight, threat, or brandished weapon, occurring in the mo ment prior to the victim’s death. Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009). However, Appellant urges this court to extend the time frame of the provocation eliciting the extreme emotional disturbance to include a history of ill treatment leading up to the final provocation. Appellant acknowledges that the trial court allowed him to present evidence of the history of discord in his marriage, but contends the refusal to have the jury instructed on manslaughter with extreme emotional disturbance denied him his constitutional right to present a complete defense.
The State first responds that this argument is not preserved for our review because Appellant has changed his argument on appeal from what he argued below. Alternatively, the State responds that there was no evidence to support the giving of the requested instruction because there was no evidence of provocation in the form of a physical fight, a threat, or a brandished weapon. See, e.g., id.
¡¡■At trial, Appellant proffered AMI Crim.2d 1004 and argued as follows:
What they’ve [Arkansas Supreme Court] restricted it to is it has to be immediate after one (1) threat or one (1) emotional disturbance. It’s not a continuation. They don’t take into account that human beings in life, in real life sometimes are not subjected to one (1) incident, they’re subjected to multiple incidents, and that’s what leads ‘em up to it. And we feel that based on that we should be able to submit, and our law is incorrect in light of Holmes versus South Carolina [547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) ].... I’m not trying to be disrespectful to the Justices, but we feel that it should be expanded to include something beyond an isolated incident or a single incident.
The trial court denied the proffered instruction on manslaughter with extreme emotional disturbance.
We agree with the State that Appellant is now arguing for the first time on appeal that the trial court’s admission of the testimony of his wife’s pattern of abusive or upsetting behavior toward him followed by the refusal to give the instruction on manslaughter with extreme emotional disturbance, deprived him of his constitutional right to have a meaningful opportunity to present a complete defense under Gilmore v. Taylor, 508 U.S. 333, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993). Despite Appellant’s contention to the contrary, his argument below was completely silent with respect to the constitutional right to present a complete defense. Appellant did not raise this particular argument below, and it is therefore not preserved for our review. Davis v. State, 368 Ark. 401, 246 S.W.3d 862 (2007). Our law is well settled that issues raised for the first time on appeal, even constitutional ones, will not be considered on appeal. London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003); Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996) |8(even in a case in which a sentence of life without parole has been imposed, the appellant is bound by the scope of the argument he made at the trial level).
III. Failure to Instruct on Lack of Parole Eligibility for Firearm Enhancement was Due Process Violation
Appellant’s third point for reversal centers on the trial court’s failure to instruct the jury on the lack of parole eligibility on the firearm enhancements to his sentences. We are precluded from reaching the merits of this argument because Appellant did not proffer an instruction to the circuit court. In order to preserve for appellate review any objection to the trial court’s failure to give an instruction, it is Appellant’s burden to proffer the instruction to the trial court and then to include the proffered instruction in the record and abstract. Robertson v. State, 2009 Ark. 430, 347 S.W.3d 460; Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996). While there was indeed some discussion below concerning the eligibility of parole or lack thereof when multiple firearm enhancements are involved, despite Appellant’s contention to the contrary, there was never any instruction on the subject proffered to the circuit court. We simply will not consider any argument on appeal that the circuit court erred in failing to give an instruction when that instruction was never proffered to it. Davis, 368 Ark. 401, 246 S.W.3d 862.
IV. Arkansas Rule of Evidence 40Mb)
As his fourth point for reversal, Appellant contends the trial court abused its discretion in admitting the testimony of Iris Jean Foxworth and Letricia Johnson over his objection based on Rule 404(b) of the Arkansas Rules of Evidence. Appellant argues that this testimony |9was not independently relevant but that even if it did have probative value, such value was substantially outweighed by its prejudicial effect.
Appellant summarizes Ms. Foxworth’s testimony as follows. Ms. Foxworth testified that while she was waiting in Marilyn Davis’s beauty shop on the day before the homicides, she saw Marilyn Davis pull into a parking place. She then saw Appellant pull in behind Marilyn Davis’s car, get out of his vehicle, open Ms. Davis’s door, and grab some papers. She heard Appellant tell Ms. Davis, “You have until 4 o’clock this evenin’, I’ll be back at 4 o’clock this evenin’.” Ms. Foxworth also testified that she heard both parties yelling at each other. Appellant contends that this testimony fails to have independent relevance and that it has prejudicial effect because it paints a picture of Appellant as being violent, aggressive, and a person of bad character. It was therefore an abuse of discretion, argues Appellant, for the trial court to admit Ms. Foxworth’s testimony.
Ms. Johnson testified that she was a nail technician at Marilyn Davis’s salon. She stated that the police were at the salon when she arrived there on the day before the shootings. She stated that although she did not read it, she saw a protection order that Marilyn Davis had obtained against Appellant. She also testified that on the day of the shootings, both victims were at the salon and that she saw Appellant drive by the salon in a Ford truck peering through the windows. She stated that she left the shop approximately ten minutes before the two victims left. She also testified that the salon was on the corner of Grand and Crescent, about three blocks from Malvern Avenue where the shootings occurred. Appellant contends | Tnthis testimony fails to have independent relevance and has a cumulative prejudicial effect relating to his character and personal habits.
Generally, rulings on the admissibility of evidence are matters within a trial court’s discretion, and we do not disturb those rulings on appeal absent a showing of abuse of that discretion and prejudice. Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004). Abuse of discretion is a high threshold that does not simply require error in the trial court’s decision, but that the trial court act improvidently, thoughtlessly, or without due consideration. Id.
The trial court held a pretrial hearing to consider Rule 404(b) evidence in this case. The State sought admission of testimony from four witnesses as well as the protection order obtained by Marilyn Davis on the day before she was shot and killed. The trial court excluded the testimony of two of those witnesses but ruled admissible the protection order and, subject to any hearsay objections, the testimony of the remaining two witnesses that Appellant now challenges on appeal, Ms. Fox-worth and Ms. Johnson.
Both Appellant and Appellee state in their briefs that Appellant’s intent or state of mind was the central issue or main issue litigated at trial. We agree with the State that the testimony of both witnesses challenged on appeal is independently relevant on the issue of Appellant’s intent. A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Watson v. State, 358 Ark. 212, 188 S.W.3d 921 (2004). Because intent is not easily proven by direct evidence, jurors are allowed to draw upon their common knowledge and experience to infer it from the Indrcumstances. Id. In addition, because of the obvious difficulty in ascertaining a defendant’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his or her acts. Id. From the testimony of Ms. Foxworth and Ms. Johnson, a jury could have concluded that Appellant’s actions on the day before the shootings and the on day of the shootings showed he acted in a purposeful and deliberate manner. In addition, both witnesses’ testimony show motive, opportunity, preparation, plan, knowledge, and absence of mistake or accident. The trial court carefully considered the admissibility of both witnesses’ testimony at the pretrial hearing. Accordingly, we see no abuse of discretion.
V. Autopsy Photographs
As his fifth point for reversal, Appellant contends the trial court erred in admitting six autopsy photographs. He argues the trial court failed to consider any objections raised by Appellant and admitted carte blanche every autopsy photograph offered by the State. In addition, Appellant contends there is no indication in the record that the trial court ever viewed the photographs or offered any explanation for overruling Appellant’s objections. Appellant also argues that allowing the photographs to be shown in color rather than black and white unnecessarily and unfairly prejudiced the jury.
A court’s admission of even a gruesome photograph is not an abuse of discretion if the photograph sheds light on some issue, proves a necessary element of the case, enables a witness to testify more effectively, corroborates testimony, or enables jurors to better understand testimony. Garcia v. State, 363 Ark. 319, 214 S.W.3d 260 (2005). Further considerations in | ^admitting photographs include whether the photograph shows the condition of the victim’s body, the probable type or location of the injuries, and the position in which the body was discovered. Id. A circuit court, however, must not apply a carte blanche approach to admission of a photograph and must consider whether the photograph creates a danger of unfair prejudice that substantially outweighs its probative value. Id.
We note that, despite Appellant’s contentions to the contrary, the record does indicate the trial court viewed the photographs and considered his objections to them. Appellant’s abstract of the record accurately and plainly states that the circuit court stated with respect to the photographs, “Okay, let’s see 'em.” The record and abstract plainly indicate “COURT REVIEWS PHOTOGRAPHS.” Appellant then objected to the photographs as prejudicial and grotesque, arguing that they would be less prejudicial if they were in black and white. The circuit court then responded, “Okay. I’m gonna allow the State to use ‘em. I’m gonna overrule your objections.” We therefore find no merit to Appellant’s claim that the trial court admitted these photographs carte blanche without viewing them or considering his objections to them.
The photographs at issue here were introduced during the testimony of the medical examiner, Dr. Konzelman, to demonstrate the nature of the injuries and the manner and order in which they were inflicted. Dr. Konzelman explained that State’s exhibit 40 pictured Marilyn Davis’s body as it looked just before he conducted the autopsy. He testified that State’s exhibits 41-46 demonstrated that the location of Marilyn Davis’s injuries showed they 11swere inflicted at close range by two different weapons. According to Dr. Konzel-man, State’s exhibits 41 and 42 showed that the two wounds from the shotgun indicated the shotgun was fired from a range of eight feet or closer. Dr. Konzel-man explained that at least one of the two wounds to the head indicated that the muzzle of the gun was placed against the victim’s skin at the time of discharge. The photographs therefore bore direct relevance to the key issue in this case, Appellant’s intent or state of mind. Therefore, the trial court did not abuse its discretion in admitting them into evidence.
As for Appellant’s contention that the photographs would have been less prejudicial if shown in black and white rather than color, the State responds that this objection was untimely. The State contends it was a practical impossibility to produce black and white photographs when Appellant did not object on this basis until immediately prior to their admission into evidence. We agree.
VI. Failure to Instruct on Lesser-included, Offense of Second-Degree Murder
As his final point for reversal, Appellant contends the trial court erred in refusing to instruct the jury that second-degree murder was a lesser-included offense of capital murder. Appellant proffered AMI Crim.2d 1003, the instruction for second-degree murder, to the circuit court and argued it should be given as a lesser-included offense of capital murder. The State objected, contending there was no rational basis for giving the requested instruction on second-degree murder. Appellant then argued that the evidence that he inflicted four gunshot wounds with two weapons demonstrated that he acted with extreme indifference to the value 114of human life. The circuit court ruled that he would allow an instruction on the lesser-included offense of first-degree murder, but denied the request to instruct on second-degree murder.
While it is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence, it is not error for the court to refuse or fail to instruct on the lesser offense where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). In addition, we adhere to our well-established “skip rule,” which provides that when an instruction on a lesser-included offense has been given, and the jury convicts of the greater offense, error resulting from the failure to give an instruction on another still lesser-included offense is cured. Yankaway v. State, 366 Ark. 18, 233 S.W.3d 136 (2006).
Appellant asserts that the circuit court erred when it rejected the instruction on second-degree murder and instead gave the instruction on capital murder and the lesser-included offense of first-degree murder. We disagree with Appellant’s argument. Here, the jury was instructed on capital murder and first-degree murder. The jury found appellant guilty of capital murder, the greater offense. The skip rule is applicable and, as such, any error that might have resulted from the trial court’s failure to instruct the jury was cured. Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006); Yankaway, 366 Ark. 18, 233 S.W.3d 136. The skip 11firule thus bars Appellant’s argument that the circuit court abused its discretion in failing to give a second-degree murder instruction.
In his reply brief, Appellant contends that our skip rule should not apply here because there is an overlap between capital murder and first-degree murder such that the jury may well have chosen to convict him of second-degree murder if they had been given that opportunity. We reject this argument because we have held repeatedly that capital murder and first-degree murder are distinct crimes. Lever v. State, 333 Ark. 377, 971 S.W.2d 762 (1998); Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998). Appellant continues with the claim that to apply the skip rule effectively disallows instructions on lesser-included offenses. Appellant presents no valid legal basis to support this argument. We therefore do not consider it on appeal. This court does not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001).
VII. Arkansas Supreme Court Rule 4-3(i)
We recognize that Appellant received a sentence of life without parole. In such cases, we are required by our own Supreme Court Rules to review all adverse rulings to Appellant made on motions, objections, and other requests. Ark. Sup.Ct. R. 4 — 3(i). Rule 4 — 3(i), however, does not require this court to review an argument not specifically made to the circuit court or to research a novel argument for an appellant who cites no apposite authority, h«Hollis, 346 Ark. 175, 55 S.W.3d 756. Both counsel for Appellant and the State have certified that the objections have all been abstracted. We have found no other rulings adverse to Appellant that constituted prejudicial error.
For the aforementioned reasons, the judgment of conviction is affirmed.
BROWN, J., not participating. | [
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ANNABELLE CLINTON IMBER, Justice.
[[Appellant Amanda Gail Holt was convicted in the Pulaski County Circuit Court of manufacturing a controlled substance (methamphetamine); possession of drug paraphernalia with intent to manufacture; maintaining a drug premises; and exposing a child to a chemical substance (methamphetamine). She was sentenced to several consecutive terms of imprisonment totaling 612 months. Appellant argues that the circuit court erred in denying her motion for a directed verdict on each of the offenses.
The Arkansas Court of Appeals, in a nine-judge panel, issued an opinion reversing and dismissing Appellant’s convictions for manufacturing methamphetamine and |2maintaining a drug premises. See Holt v. State, 104 Ark. App. 198, 290 S.W.3d 21 (2008). Although the court of appeals concluded that there was insufficient evidence to support either of those convictions, it upheld the other convictions for possession of drug paraphernalia with intent to manufacture and exposing a child to methamphetamine. Id. Appellant petitioned this court for review of the court of appeals’ decision. We granted her petition for review pursuant to Arkansas Supreme Court Rule 2-4(c)(iii). When we grant review of a decision by the Arkansas Court of Appeals, we review the case as though the appeal was originally filed in this court. See Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147.
On September 21, 2006, Officer Randy Howard of the Pulaski County Sheriffs Office went to the home of Michael Hogue in response to a call regarding three small children playing in the road. As Officer Howard approached the location, he saw three children playing behind a trailer. The door to the trailer was wide open. The officer also noticed a strong chemical odor emanating from the trailer, which he recognized as an odor consistent with the presence of a methamphetamine lab. He then knocked on the door. A few moments later the owner, Michael Hogue, came to the door from a bedroom just inside the door to the right and proceeded to close the door as he spoke with the officer. When Officer Howard asked to speak to the mother of the children, Hogue went back inside the trailer. Immediately thereafter, the officer heard movement coming from the bedroom on the right Isside of the trailer and Appellant then appeared at the door. Officer Howard asked her if she knew where her children were, to which she responded that she had been asleep and did not know the children were outside playing. The officer then informed Appellant that he was concerned about the children being exposed to the strong chemical odor. He asked to search the trailer, but Appellant declined to give consent, claiming that she had only been staying at the trailer for a couple of weeks. Hogue then gave the officer permission to search the exterior of the trailer. Upon detecting the same odor coming from the other side of the trailer, Officer Howard alerted investigators about the chemical odor. Once an investigator arrived, she detected the presence of phosphine gas using a gas detection unit and summoned Hogue’s parole officer.
The parole officer conducted a home inspection of the trailer. During the search of the bedroom to the right of the door, the officer saw a bed and dresser and several items that were collected as evidence: an electric hotplate that was still warm to the touch; stained salt container consistent with a methamphetamine lab; small plastic bag commonly used for packaging narcotics; a large box of match boxes; a camp fuel can and glass jar under a blanket on the bed; and a black satchel underneath the mattress that contained items used in the manufacture of methamphetamine. The items in the satchel included a bottle with a bi-layer liquid (which indicates the presence of methamphetamine oil that is near the final steps in the manufacturing process), as well as two bottles that contained a white granular substance emitting an acidic fume. One of the drawers in the dresser contained hypodermic |4needles, a glass smoking device, coffee filters and a spoon. Another drawer in the dresser contained children’s clothing and a hypodermic needle.
Additional items found in another bedroom on the other side of the trailer included some small plastic baggies and some tubing used in transferring chemicals during the manufacturing of methamphetamine. The children were taken to a local hospital for decontamination because of their possible exposure to the chemicals. The hospital also performed a hair follicle test on the children to check for exposure to methamphetamine. The test showed exposure to the drug, as well as the youngest child’s ingestion of the drug cocaine.
I. Sufficiency of the Evidence — Manufacturing Methamphetamine
Appellant contends that the circuit court erred in denying her motion for a directed verdict on the offense of manufacturing methamphetamine. She argues that, even in the light most favorable to the State, the State did not introduce substantial evidence at trial to prove that she manufactured methamphetamine. Specifically, Appellant argues that her mere presence in the residence and her knowledge of what was being done there does not constitute substantial evidence that she manufactured methamphetamine.
Our court has held that we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Saul v. State, 365 Ark. 77, 81, 225 S.W.3d 373, 377 (2006) (citing Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004)). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct [ sor circumstantial. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). Substantial evidence is that “which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture.” Saul, 365 Ark. at 81, 225 S.W.3d at 377. With regard to circumstantial evidence, such evidence may provide a basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id. When we review a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State, and only evidence supporting the verdict will be considered. Walley, 353 Ark. 586, 112 S.W.3d 349 (citing Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003)). Furthermore, a jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. Id.
Appellant was convicted of manufacturing methamphetamine in violation of Ark.Code Ann. § 5-64-401(a)(1)(A)(i) (Supp.2009). She concedes that the State proved (a) she was present in the residence when methamphetamine was being manufactured and (b) she knew methamphetamine was being manufactured. Notwithstanding this concession, Appellant claims the State failed to prove that she had ever been inside the master bedroom where all the paraphernalia used to manufacture methamphetamine was found. In essence, she challenges the sufficiency of the State’s proof linking her to the manufacturing paraphernalia located in the master bedroom.
Rln Walley v. State, supra, we discussed the analysis necessary to review a sufficiency challenge in cases where two or more people occupy the residence where contraband was found. We stated that:
Under our law, it is clear that the State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused, that is, con structively possessed.... Constructive possession can be implied when the controlled substance is in the joint control of the accused and another. Joint occupancy, though, is not sufficient in itself to establish possession or joint possession. There must be some additional factor linking the accused to the contraband. The State must show additional facts and circumstances indicating the accused’s knowledge and control of the contraband.
353 Ark. 586, 595, 112 S.W.3d 349, 353 (2003). In order to prove constructive possession, the State must establish two elements: “(1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband.” Id. (citing Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995); Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988)).
An additional factor is necessary to link the accused to the contraband in joint occupancy situations. Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978). “It cannot be inferred that one in nonexclusive possession of premises knew of the presence of drugs and had joint control of them unless there were other factors from which the jury can reasonably infer the accused had joint possession and control.” Walley, 353 Ark. at 596, 112 S.W.3d at 354. We have stated that an additional factor to consider in determining whether |7a defendant was in constructive possession was the proximity of the defendant to the contraband. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147.
With these principles in mind, and viewing the evidence in the light most favorable to the State, we conclude that there is sufficient evidence to support Appellant’s conviction of manufacturing methamphetamine. It is undisputed that Appellant had been occupying the residence for at least two weeks. Furthermore, Appellant concedes that she was present in the residence when methamphetamine was being manufactured and that she knew methamphetamine was being manufactured. As to her proximity to the master bedroom where the manufacturing paraphernalia was located, the officer testified that when Hogue went back inside the trailer to get Appellant, he heard movement coming from the bedroom on the right side of the trailer just before Appellant appeared at the door. Also, when the officer asked Appellant about her children, she responded that she did not know the children were outside playing because she was asleep. The record reflects that the only bed in the trailer was in the master bedroom. Furthermore, the bed was covered with different parts of the methamphetamine production process, and the odor from the process was overwhelming. Finally, the children’s clothing was found in one of the drawers of a dresser located in the master bedroom. Thus, based on this evidence indicating Appellant’s proximity to the manufacturing paraphernalia, the jury could reasonably infer that she had joint possession and control of the contraband. We therefore affirm on this point.
II. Sufficiency of the Evidence— Possession of Drug Paraphernalia
| sAppellant also argues that the circuit court erred in denying her motion for a directed verdict on the offense of possession of drug paraphernalia with intent to manufacture. Once again, she challenges the evidence linking her to the manufacturing paraphernalia. The State argues that Appellant’s argument on appeal is not preserved for appellate review.
As a preliminary matter, to preserve an objection based on the sufficiency of the evidence, the appellant must make a motion for a directed verdict at the close of the State’s case and again at the close of all evidence and must state the specific grounds. Ark. R.Crim. P. 33.1(a) & (c). Further, “when a defendant does not present any evidence after making his directed verdict motion at the close of the State’s case, further reliance on that motion is not waived.” Mosley v. State, 87 Ark. App. 127, 130, 189 S.W.3d 456, 458 (2004).
In her sufficiency challenge below, Appellant stated that “the State has failed to make a prima facie case that to the exclusion of the other occupant of this trailer that [Appellant] possessed with intent to manufacture methamphetamine [paraphernalia], again for the purpose or intent to produce or manufacture methamphetamine.” Thus, Appellant argues on appeal that the State did not prove that she constructively possessed the paraphernalia; that is, she argues that the State’s proof regarding the other occupant was not sufficient to prove that she had joint possession and control of the contraband. We therefore conclude that Appellant’s argument on this point is preserved for appellate review.
Appellant was convicted of possessing drug paraphernalia with intent to manufacture, in violation of Ark.Code Ann. § 5-64-403(b)(5)(A) (Supp.2009). Based upon the |flevidence of Appellant’s proximity to the manufacturing paraphernalia, as set forth earlier in this opinion, we conclude that the circuit court did not err in denying Appellant’s directed-verdict motion.
III. Sufficiency of the Evidence— Maintaining a Drug Premises
Arkansas Code Annotated § 5-64-402 provides that it is unlawful for any person to knowingly keep or “maintain any store, shop, warehouse, dwelling, building, or other structure or place or premise that is resorted to by a person for the purpose of using or obtaining a controlled substance .... ” Ark.Code Ann. § 5-64-402(a)(2) (Supp.2009). Appellant contends that the circuit court erred in denying the motion for a directed verdict on the charge of maintaining a drug premises. She claims that the State failed to introduce substantial evidence that she maintained a structure or premises used for keeping controlled substances.
The State counters that there was ample evidence to show that Appellant lived on the premises and was involved in the manufacture of methamphetamine. We agree. Based upon the evidence summarized earlier in this opinion, we affirm the circuit court’s denial of Appellant’s directed-verdict motion on the offense of maintaining a drug premises.
IV. Sufficiency of the Evidence— Exposure of a Child to Methamphetamine
For her last point on appeal, Appellant challenges the sufficiency of the evidence supporting her conviction of exposing a child to methamphetamine. She claims the State did not offer sufficient evidence to prove that she, with the intent to manufacture 110methamphetamine, knowingly permitted or caused a child to be exposed to methamphetamine.
Arkansas Code Annotated § 5-27-230 provides that “any adult who, with the intent to manufacture methamphetamine, knowingly causes or permits a child to be exposed to, ingest, inhale, or have any contact with a chemical substance or methamphetamine is guilty of a[ ] felony.” Ark. Code Ann. § 5-27-230(b)(1) (Repl.2006). The statute further states that “intent may be demonstrated by the substance’s use, quantity, manner of storage, or proximity to another precursor or equipment used to manufacture methamphetamine.” Id.
Once again, we conclude that there was substantial evidence offered at trial that Appellant’s children had been exposed to the chemicals used in the manufacture of methamphetamine. Appellant had been living at the residence for at least two weeks. She concedes that she was aware methamphetamine was being manufactured on the premises. The officer who approached the premises testified that he noticed a distinct odor emanating from the trailer, which he recognized as an odor associated with methamphetamine labs. The children’s clothes had the same odor. In fact, the children had to be decontaminated before being taken to the hospital. Tests conducted at the hospital indicated that the children had been exposed to methamphetamine or its precursors. Furthermore, as set forth earlier in this opinion, there was sufficient evidence to support Appellant’s conviction of manufacturing methamphetamine. Accordingly, we affirm on all three counts of exposing a child to methamphetamine. The record reflects sufficient evidence to prove that | ^ Appellant intended to manufacture methamphetamine and knowingly permitted her children to be exposed to methamphetamine.
Circuit Court affirmed.
Court of Appeals affirmed in part; reversed in part. | [
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ROBERT L. BROWN, Justice.
^Appellant T.C., a minor, appeals from an order of the Ouachita County Circuit Court adjudicating him delinquent on the charge of second-degree murder for the death of his sister, Kaylee, and committing him to the Division of Youth Services. He raises six points on appeal: (1) that the circuit judge erred by denying his motion to suppress his statement; (2) that the circuit judge erred in finding that his statement was reliable; (3) that there was insufficient evidence for the circuit judge to adjudicate him delinquent on the charge of second-degree murder; (4) that the circuit judge erred by denying his motion to dismiss based on the State’s failure to provide exculpatory evidence; (5) that the circuit judge’s disposition order was contrary to law; and (6) that the circuit judge violated his right to remain silent under the Fifth and Fourteenth Amendments.
kOn the morning of August 7, 2006, police officers of the Camden Police Department responded to a 911 call from T.C.’s residence, which he shared with his mother, Melody Jones, and his eleven-year-old sister, Kaylee. T.C. at the time was twelve years old. Upon their arrival, the police officers found Kaylee dead on her bed with her hands bound together in the front of her body with what was later determined to be a dog leash and her feet bound together with a cloth measuring tape. The police officers learned that Kaylee had been found with two plastic shopping bags over her head, which her mother had removed when she discovered Kaylee on her bed. The cause of Kaylee’s death was later determined to be suffocation.
The police officers concluded that they were dealing with a potential homicide and quickly cleared and secured the residence. While police investigators processed the house for evidence, T.C. and his mother waited outside in a relative’s vehicle. Some time after noon, the police officers asked the relative to drive T.C. and his mother to the Camden Police Station where it was cooler and where they would not have to witness the removal of Kay-lee’s body from the residence. The relative then drove T.C. and his mother to the police station where they waited in the station’s break room with family.
Having discovered no evidence of forced entry into the home, the police officers returned to the police station to interview T.C. and his mother. Melody Jones was interviewed first at approximately 4:30 that afternoon, while T.C. waited in the break room with his family. Jones’s interview lasted approximately one hour and was videotaped in its | (¡entirety in the station’s interview room. Following Jones’s interview, police officers interviewed T.C. with his mother’s permission in the interview room. T.C.’s interview began at approximately 5:30 p.m. Forty-five minutes into the interview, he was advised of his Miranda rights, and he signed a waiver-of-rights form. The interview continued until 6:45 p.m., when T.C. told the police officers that he was hungry. At that point, he was taken from the interview room to a detective’s office, and the officers went to pick up some food for him. The portion of T.C.’s interview that occurred from 5:30 p.m. to 6:45 p.m. was videotaped by the police department.
What happened during the ensuing time period was testified to at the suppression hearing and trial by the police officers and deputy prosecuting attorney. While T.C. was eating his dinner in the detective’s office, Deputy Prosecuting Attorney Gregg Parish talked with him for five to ten minutes about school, video games, and the things his sister liked. After Parish left, Officer Scott Wells spoke with T.C. about their shared interest in video games and science fiction. Officer Evin Zeek joined T.C. and Wells sometime later. After listening to T.C.’s and Wells’s conversation for awhile, Zeek turned the conversation to what had happened to Kaylee the night before. According to the police officers, T.C. soon became frustrated when they began to point out inconsistencies in his version of what had happened the previous night. At some point later in the conversation, T.C. asked, “If I tell |4the truth, what’s gonna happen? Do you think I can get probation?” After the police officers told T.C. that they did not know what would happen to him, he proceeded to tell them that he had placed plastic bags over his sister’s face and bound her hands and feet. During part of the time that T.C. was in the detective’s office, Melody Jones was being interviewed in the interview room.
Because the interview in the detective’s office was not recorded, the police officers then took T.C. back to the interview room to record his confession. The videotaped interview that followed began at approximately 10:20 p.m. with Officer Zeek again advising T.C. of his Miranda rights. After T.C. stated that he understood his rights, Officer Zeek moved on to the waiver-of-rights form and the following colloquy occurred:
Officer Zeek: At the bottom is what we call a Waiver of Rights Okay, and I will read it to you quickly. It says no promises or threats have been used against me to induce me to waive rights listed above. With full knowledge of my rights, I hereby voluntarily, knowingly, and intelligently waive them and agree to answer questions. Do you understand the Waiver?
T.C.: No, what is a waiver?
Officer Zeek: It simply says that what you are saying, you are doing of your own free will.
T.C.: Okay.
Officer Zeek: Okay. We haven’t made any promises. We haven’t threatened you in any way. You are doing this because you want to do this. Okay. And again, it is by your own free will that you do this, that you make this statement.
T.C.: Yes.
^Officer Zeek: Do you understand that?
T.C.: Yes.
T.C. then signed the waiver-of-rights form and gave his confession.
On August 15, 2006, the State filed a petition for delinquency charging T.C. with first-degree murder for the death of his sister and moved to designate him as an extended-juvenile-jurisdiction offender under Arkansas Code Annotated section 9-27-503. Following a fitness-to-proceed evaluation in accordance with section 9-27-502, the circuit judge found that T.C. was fit to proceed and that at the time he engaged in the conduct charged he had the capacity to possess the necessary mental state required for the offense charged, to conform his conduct to the requirements of the law, and to appreciate the criminality of his conduct.
On February 13, 2007, T.C. moved to suppress his statement and alleged that it had been elicited in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution; that he had not knowingly, intelligently, and voluntarily consented to giving a statement or waiving counsel due to his youth and immaturity; that his mother was not an appropriate person to consent to his questioning because she was also a suspect; and that his statement was coerced by threats from the deputy prosecuting attorney to charge him as an adult and was thus involuntary and false.
liAfter a hearing on the matter, the circuit judge granted the State’s request to have the matter designated an extended-juvenile-jurisdiction case under section 9- 27-503. T.C. next filed a motion to reject waiver and a supplemental motion to suppress his statement, arguing, among other things, that neither his waiver nor his confession had been voluntarily, knowingly, or intelligently made; that his confession was inconsistent with the evidence and thus unreliable; and that his confession was the result of an illegal interrogation, as the police had violated Rules 2.2 and 2.3 of the Arkansas Rules of Criminal Procedure and Arkansas Code Annotated section 9-27-817(h).
On August 27, 2007, the State filed an amended petition for delinquency, reducing the charge against T.C. to second-degree murder. Following pretrial hearings on August 31, 2007, and October 29, 2007, the circuit judge entered an order denying T.C.’s motions to suppress his statement and his motion to reject his waiver of rights. Specifically, the circuit judge found that the State had met its burden in proving that T.C.’s waiver of rights was freely, voluntarily, and intelligently made; that under the totality of the circumstances T.C.’s statement should not be suppressed; that T.C. understood the consequences of the waiver |7and that it was not the result of any coercion, force, or inducement; that T.C.’s confession was not unreliable and was given of his own free will; and that the police had not violated Rules 2.2 and 2.3 of the Arkansas Rule of Criminal Procedure or Arkansas Code Annotated section 9-27-317(h).
Following a bench trial on March 18, 19, 20, and 24, 2008, the circuit judge found T.C. to be delinquent on the charge of the second-degree murder. A disposition hearing was held on August 15, 2008, after which, T.C. was committed to the Division of Youth Services with the condition that if he was released prior to his eighteenth birthday, he would be placed on probation until his eighteenth birthday.
T.C. appealed his delinquency order and disposition to the court of appeals, and the court of appeals affirmed. See T.C. v. State, 2009 Ark.App. 604, 342 S.W.3d 832. T.C. next filed a petition for review with this court, which we granted. When we grant review, we treat the appeal as if it were originally filed in this court. See, e.g., McClanahan v. State, 2010 Ark. 39, 358 S.W.3d 900.
I. Sufficiency of the Evidence
On appeal, T.C. asserts that the circuit judge erred by failing to grant his motion to dismiss on the basis that the State failed to prove that he “knowingly” caused the death of his sister, which is an essential element of second-degree murder under Arkansas Code Annotated section 5 — 10—103(a)(1). Although he raises this issue as his third point on appeal, | Rdouble-jeopardy concerns require this court to review his sufficieney-of-the-evidence argument first. See, e.g., Rounsaville v. State, 2009 Ark. 479, 346 S.W.3d 289.
T.C. urges that his confession was insufficient to establish that he knowingly murdered his sister and that his confession, in fact, establishes just the opposite. According to T.C., he never stated that he knew his sister had died or that he thought she had died, and he consistently denied having any intent to hurt his sister. In addition, he points to portions of his confession that reflect actions he took which, he asserts, show that he did not knowingly kill his sister. For example, he underscores the fact that he told police that he held a shopping bag over his sister’s head but stopped when she began to jerk, that he tied her up to slow her down from coming after him, and that he later went back to loosen the bags around Kaylee’s head “so air would get in there.”
Before considering the merits of this point on appeal, this court must first determine whether the issue was properly preserved for appellate review. See Maxwell v. State, 359 Ark. 335, 197 S.W.3d 442 (2004). This court treats a motion to dismiss in a bench trial as a challenge to the sufficiency of the evidence. See Law v. State, 375 Ark. 505, 292 S.W.3d 277 (2009); Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006). Under the Juvenile Code, the Arkansas Rules of Criminal Procedure apply to delinquency proceedings. See Ark. Code Ann. § 9-27-325(f) (Repl.2009); see also Jones v. State, 347 Ark. 409, 64 S.W.3d 728 (2002).
Rule 33.1 of the Arkansas Rules of Criminal Procedure governs motions to dismiss in bench trials and provides in relevant part as follows:
h(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s evidence, then the motion must be renewed at the close of all of the evidence.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
(Emphasis added.)
This court strictly construes Rule 33.1. Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002). Based on the language of Rule 33.1, this court has held that to preserve a challenge to the sufficiency of the evidence in a bench trial, a criminal defendant must move to dismiss at the close of the evidence. See, e.g., Maxwell, 359 Ark. at 337, 197 S.W.3d at 443. Furthermore, this court has held, in light of Rule 33.1, that the motion must be specific enough to advise the circuit court of the exact element of the crime that the State has failed to prove. E.g., Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (2004). The rationale behind this rale is that “when specific grounds are stated and the absent proof is pinpointed, the circuit court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.” Pinell v. State, 364 Ark. 353, 357, 219 S.W.3d 168, 171 (2005); see also Pratt, 359 Ark. at 23-24, 194 S.W.3d at 187-88. A general motion merely asserting that the State has failed to prove its case is inadequate to preserve the issue on appeal. E.g., Beavers v. State, 345 Ark. 291, 46 S.W.3d 532 (2001).
Mindful of these standards, we turn to the motions made by the defense. At the close of the State’s evidence, T.C.’s counsel made the following motion to dismiss: “The State has failed to provide sufficient evidence that [T.C.] can be adjudicated on a Second Degree Murder charge. They have not met the requisite elements for that charge.” The circuit judge denied the motion. At the close of the defense’s evidence, T.C.’s counsel renewed the motion to dismiss, saying: “I need to renew my motion for dismissal based on the insufficiency of the evidence. Specifically, the fact that they have failed to prove beyond a reasonable doubt each and every element of this offense.” Defense counsel then proceeded to argue at length that T.C.’s confession was unreliable based on the evidence presented at trial and the circumstances under which it was taken, before concluding: “even with the statement in, there is still insufficient evidence of proof that [T.C.] intended to kill his sister.”
The circuit judge denied the renewed motion to dismiss, and because the parties had waived closing arguments, took the case under consideration. A hearing to announce a decision in the case was scheduled for April 3, 2008. On April 2, 2008, T.C. filed a “Brief in Support of Motion to Dismiss,” arguing, among other things, that there was insufficient evidence to establish that T.C. had “knowingly” caused the death of his sister, an essential element of second-degree murder under section 5-10-103(a)(l), which provides that a person |ucommits murder in the second degree if the person “knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life.” A person acts “knowingly” with respect to a result of the person’s conduct “when he or she is aware that it is practically certain that his or her conduct will cause the result.” Ark.Code Ann. § 5-2-202(2)(B).
What is clear from the above discussion is that T.C. made general motions to dismiss at the close of the State’s evidence and at the close of the defense’s evidence. Neither of these motions was specific enough to advise the circuit court of the exact element of the crime that the State had failed to prove — that T.C. had knowingly caused the death of his sister. Thus, neither motion preserved T.C.’s sufficiency-of-the-evidence argument on appeal. See, e.g., Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (2004).
This court has held that sufficiency-of-the-evidence challenges were not preserved when motions were made after closing arguments had begun, see McClina v. State, 354 Ark. 384, 123 S.W.3d 883 (2003); State v. Holmes, 347 Ark. 689, 66 S.W.3d 640 (2002), and when motions were made after the jury had been charged, see Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996). Similarly, we conclude that a brief in support of a motion to dismiss in a bench trial that is made some days after the case is taken under advisement by the judge is untimely and does not cure a defective motion to dismiss under Rule 33.1.
■ [l2In sum, T.C. failed to make a motion to dismiss at the close of all of the evidence that was specific enough to advise the circuit court of the exact element of the crime that the State had failed to prove. Though T.C.’s counsel stated that there was no proof that T.C. intended to kill his sister, counsel did not argue the failure to prove the specific element of the offense for second-degree murder, that is, that T.C. did not knowingly cause the death of another person under circumstances manifesting extreme indifference to the value of human life. By the time that T.C. did raise a specific argument in his posttrial brief, it was too late. T.C.’s attempt to renew the motion to dismiss was not “at the close of all of the evidence” and was, therefore, untimely. We hold that T.C. failed to comply with Rule 3B.1, and, thus, sufficiency of the evidence is not an issue preserved for our review.
II. Motion to Suppress His Confession
T.C. makes several arguments in support of his assertion that the circuit judge erred by denying his motion to suppress his confession: (1) that the Miranda warnings were not given until forty-five minutes into his first interview, and this failure tainted his later confession; (2) that the waiver of his Miranda rights was not voluntary, knowing, and intelligent; (3) that the consent of Jones to T.C.’s interview was invalid because, as a suspect, her interest was adverse to T.C.’s; (4) that the confession was the result of police coercion; (5) that the confession was the result of violation of Arkansas Rules of Criminal Procedure 2.2 and 2.3; and (6) that the confession was not reliable.
hWe focus initially on whether T.C.’s waiver of Miranda rights was voluntary, knowing, and intelligent. That determination involves the consideration of two components, both of which must be satisfied. See Otis v. State, 364 Ark. 151, 217 S.W.3d 839 (2005). The first component involves the voluntariness of the waiver and concerns whether the waiver was the product of free and deliberate choice rather than intimidation, coercion, or deception. Id. The second component involves whether the defendant made the waiver knowingly and intelligently and concerns whether the waiver was made with “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. In making these decisions, this court reviews the totality of the circumstances surrounding the waiver, including the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of the detention; the repeated and prolonged nature of the questioning; the use of mental or physical punishment; and statements made by the interrogating officers and the vulnerability of the defendant. Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004). This court will reverse a circuit judge’s ruling on this issue only if it is clearly against the preponderance of the evidence. Id.
Using the totality-of-the-eir-cumstances analysis, we conclude that T.C.’s waiver was not knowingly and intelligently made. While a defendant’s youth is a factor to be considered in determining whether a juvenile knowingly and intelligently waived his or her Miranda rights, it is generally not enough, standing alone, to prove that he or she is incapable of knowingly and intelligently waiving Miranda rights. For example, in Otis v. State, 364 Ark. 151, 217 S.W.3d 839 (2005), this court held that a fourteen-year-old with a func tional age of nine to twelve years old had knowingly and intelligently waived his rights where officers had carefully explained what the words on the waiver form meant, where Otis had asked no questions, and where he had indicated that he understood the form. The court also noted that Otis’s mother was present when he signed the form.
Similarly, in Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998), this court held that a sixteen-year-old with an Intelligence Quotient of 67 had knowingly waived his 11fiMiranda rights under the totality of the circumstances. Testimony regarding those circumstances showed that he understood the statements on the waiver form, that he had not asked any questions about the form, and that his father had been present during the execution of the waiver forms. Likewise, in Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995), we held that a fifteen-year-old with the mental age equivalent of a twelve-year-old had knowingly and intelligently waived his rights where testimony from the suppression hearing showed that the arresting officers had explained the waiver-of-rights form to Oliver and that he appeared to understand it.
A common thread running through these cases is that the defendants had their rights carefully explained to them and either asked no questions or otherwise did not express confusion about the meaning of the waiver-of-rights form. In contrast, T.C. was given no explanation of the waiver-of-rights form the first time he signed it and instead was merely asked to read it for himself. The second time he was asked to sign the form, he said that he did not understand what “waiver” meant. Instead of explaining what waiver meant, the police gave T.C. the definition of voluntariness, saying: “what you are saying, you are doing of your own free will ... [w]e haven’t made any promises. We haven’t threatened you in any way. You are doing this because you want to do this. And again, it is by your own free will that you do this, that you make this statement.”
This definition of what “waiver” means was patently wrong. As a result, we conclude, based on T.C.’s question and the police officer’s explanation, that T.C. did not | lf,understand the meaning of waiver. Waiver, of course, is routinely defined as the “intentional relinquishment or abandonment of a known right or privilege.” See Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (2004) (quoting Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)). In laymen’s terms, it is “giving up” something, in this case the right to be silent and the right to counsel. The police officer’s explanation imparted to T.C. did not make clear that he was giving up his rights to remain silent and to the assistance of counsel. It necessarily follows then that T.C.’s waiver was not made with “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” E.g., Otis v. State, 364 Ark. at 161, 217 S.W.3d at 845. And that is the crucial test. We hold that the circuit judge’s finding that T.C. knowingly and intelligently waived his rights was clearly against the preponderance of the evidence. For this reason, we suppress T.C.’s confession. Because we suppress the confession due to T.C.’s lack of a knowing and intelligent waiver of his rights under Miranda, it is unnecessary to address the other grounds presented for suppression.
III. Brady Violation
Because we remand for a new delinquency proceeding, we will address only those issues likely to recur on retrial. See, e.g., Burton v. State, 367 Ark. 109, 238 S.W.3d 111 (2006).
T.C. asserts that the State violated his due-process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose a tape recording of an interview the police officers had |17with Chico Spinks, an acquaintance of T.C.’s mother, which allegedly contained exculpatory statements regarding T.C.’s guilt. The circuit judge, in denying T.C.’s motion to dismiss for the alleged Brady violation, found that there was insufficient evidence that a recording of the Spinks interview with police officers existed and that the State had provided Spinks’s name and the substance of his statement to the defense. The judge further noted that the defense had not interviewed Spinks or called him to testify at the delinquency trial.
Under the Brady decision, the State is required to disclose all favorable evidence material to the guilt or punishment of the defendant. In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court outlined the three elements of a true Brady violation: (1) evidence exists that is favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice resulted to the defendant. Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Cook v. State, 361 Ark. 91, 105, 204 S.W.3d 532, 540 (2005) (quoting Strickler, 527 U.S. at 280, 119 S.Ct. 1936). The defendant has the burden of proving a Brady violation. Carter v. Bell, 218 F.3d 581, 601 (6th Cir.2000) (citing Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972)).
Applying these principles, we conclude that T.C. has failed to meet his burden of proving a Brady violation. Initially, T.C. failed to establish to the circuit judge’s satisfaction that the Spinks tape recording even exists. But even assuming that a tape recording of Spinks |1Rdoes exist, T.C. has not shown that the evidence was suppressed by the State. Evidence is not “suppressed” if the defendant either knew about it or should have known of the essential facts permitting him to take advantage of any exculpatory evidence. United States v. LeRoy, 687 F.2d 610 (2d Cir.1983), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983); see also United States v. Diaz, 922 F.2d 998, 1007 (2d Cir.1990) (“There is no improper suppression within the meaning of Brady where the facts are already known by the defendant.”). In the instant case, the State gave the defense Spinks’s name and the substance of his statement to the police officers, which was that T.C.’s mother, Melody Jones, had talked about Kaylee’s death in her sleep. Hence, T.C. was on notice that Spinks had information that might have helped in his defense. Yet, despite having this information, T.C. failed to subpoena Spinks as a witness to testify in his defense; nor did T.C.’s counsel interview him.
Further, even if this court were to determine that the State had suppressed evidence of Spinks’s statement, T.C. has not met his burden of showing that the evidence was exculpatory. T.C. claims that Spinks told the police that T.C.’s mother had admitted in her sleep to killing Kaylee. However, the record reveals that Spinks told police that T.C.’s mother sat up in bed and began talking about Kaylee’s death, using different voices for Kaylee and T.C. Such a statement alone neither exculpates T.C. nor inculpates his mother.
Moreover, T.C. has failed to show that the Spinks evidence was material within the meaning of the Brady rule. Again, evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have 119been different.” Here, there is nothing to indicate that the result of T.C.’s delinquency proceeding would have been different had the defense been in possession of a recording of Spinks’s statement to police. Most significantly in this regard, the circuit judge was aware of the substance of Spinks’s statement to police.
As a final point, T.C.’s claim that the Spinks recording, if it existed, was essential to the impeachment of the police officers and Melody Jones is not persuasive. Jones, although called as a witness for the defense, was never asked about Spinks, his alleged statement to the police, or whether she had made the statements alleged by T.C. As to the argument that the tape was essential to impeaching the police officers’ testimony that Spinks was drunk when he gave the statement to police, we fail to see how this would have caused the result of the proceeding to be different. We hold that T.C. has failed to meet his burden of showing that a Brady violation occurred. Having held as we do, we emphasize that if the Chico Spinks tape does exist, it should be turned over to the defense on remand.
IV. The Circuit Judge’s Disposition
We address a second issue because it too may recur at a retrial of the matter. T.C. contends that Arkansas Code Annotated section 9-27-330 does not authorize probation for a period of more than two years. Because of this, he claims that the circuit judge erred by placing him on probation until his eighteenth birthday. This argument is not persuasive because T.C. was not placed on probation until his eighteenth birthday; rather he was Uncommitted to the Division of Youth Services on August 15, 2008, with the condition that should he be released prior to his eighteenth birthday, he would be placed on probation from that point forward until his eighteenth birthday. Accordingly, there is no error on this point.
T.C. also maintains that the circuit judge erred by committing him to the Division of Youth Services and urges that the circuit judge failed to consider the best interests of the juvenile and the least restrictive alternative, as required by statute. Section 9-27-330(a)(l)(B) provides that “if a juvenile is found to be delinquent, the circuit court may ... based upon the best interest of the juvenile ... [c]ommit the juvenile to the Division of Youth Services.” Despite T.C.’s argument to the contrary, the record reveals that the circuit judge considered T.C.’s best interests in determining his disposition. As an additional point, the circuit judge’s decision was consistent with the recommendation from T.C.’s South Arkansas Youth Services counselor.
There was no error stemming from T.C.’s disposition.
Reversed and remanded. Court of Appeals reversed.
Special justices STUART W. HANKINS and AMY LEE STEWART join in this opinion.
CORBIN and WILLS, JJ., not participating.
. The time that T.C.’s initial interview began was disputed at oral argument. According to T.C.'s counsel, the initial interview began closer to 5:00 p.m.
. The circuit judge’s order, entered on June 27, 2007, stated that T.C. did not oppose the State’s request for an extended-juvenile-jurisdiction designation.
. Because of the reduction of the charge against T.C., he was no longer eligible for an extended-juvenile-jurisdiction designation. See Ark.Code Ann. § 9-27-501(a)(l) (juveniles under thirteen years of age eligible for extended juvenile jurisdiction for the charges of capital murder and murder in the first degree).
. Both parties reference Arkansas Code Annotated section 9-27-317(c) in their arguments on this point. That section provides a list of seven factors that must be considered in "determining whether a juvenile’s waiver of the right to counsel at any stage of the proceeding was made freely, voluntarily, and intelligently." Section 9-27-317(c) refers to the juvenile’s right to counsel at "any stage of the proceeding.” Under section 9-27-310(a), proceedings are commenced by filing a petition with the circuit clerk of the circuit court or by transfer from another court. Accordingly, the situation at issue under this point occurred prior to the commencement of proceedings under the Juvenile Code, and section 9-27-317(c) does not appear to be apposite. | [
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JOHN B. ROBBINS, Judge.
| Appellant Steven Tucker sustained an admittedly compensable back injury while working for appellee Cooper Standard Automotive on October 27, 2000. Mr. Tucker underwent three surgical procedures and on June 19, 2003, Dr. Wayne Bruffett reported that Mr. Tucker had reached maximum medical improvement and assigned a 15-percent permanent physical-impairment rating. The appellee accepted and paid compensation for the 15-percent impairment rating, but a controversy arose over Mr. Tucker’s claim for permanent and total wage-loss disability benefits.
A hearing was held before the Administrative Law Judge (ALJ) for the purpose of establishing the extent, if any, of Mr. Tucker’s entitlement to permanent wage-loss disability benefits. After the hearing, the ALJ found that Mr. Tucker refused to participate in jobjplacementg assistance without reasonable cause, and thus that Mr. Tucker was not entitled to any wage-loss disability pursuant to Ark.Code Ann. § 11 — 9—505(b)(3) (Repl.2002), which provides:
The employee shall not be required to enter any program of vocational rehabilitation against his or her consent; however, no employee who waives rehabilitation or refuses to participate in or cooperate for reasonable cause with either an offered program of rehabilitation or job placement assistance shall be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by objective physical findings.
Mr. Tucker appealed to the Workers’ Compensation Commission, and the Commission reversed the decision of the ALJ. Strictly construing the statute, the Commission found that the ALJ had erred as a matter of law in denying Mr. Tucker’s claim for permanent-total-disability benefits based on Ark.Code Ann. § 11-9-505(b)(3), because that provision cannot act as a statutory bar to a claim of permanent-total disability. The Commission then addressed Mr. Tucker’s alternative claim for permanent-partial disability, and found that there was no statutory bar to that claim because Cooper Standard Automotive did not prove that Mr. Tucker had acted unreasonably in his lack of cooperation with his job-placement counselor. Considering the relevant wage-loss factors, the Commission found that Mr. Tucker proved that he had sustained 20-percent permanent wage-loss in excess of his 15-percent permanent physical impairment.
Mr. Tucker now appeals the Commission’s decision, arguing that the Commission erred in limiting him to only 20-percent wage-loss disability benefits. Mr. Tucker asserts that the evidence established that he was permanently and totally disabled or, in the alternative, |sthat he should have been awarded a higher percentage of wage loss. Cooper Standard Automotive has cross-appealed, arguing that (1) the Commission erred in finding that Ark.Code Ann. § 11 — 9—505(b)(8) does not apply to a claim for permanent and total disability, and (2) the Commission erroneously shifted the burden of proof as to whether Mr. Tucker’s lack of cooperation under the statute was reasonable. Cooper Standard Automotive contends that because there was no substantial evidence to support appellant’s claim that he acted reasonably in failing to take any action to seek or obtain employment, he had failed in his burden of proving entitlement to any wage-loss disability pursuant to the above-cited statute.
On direct appeal, we affirm the Commission’s denial of Mr. Tucker’s claim for permanent-total disability benefits. However, we reverse and remand for the Commission to award a greater percentage of permanent-partial wage-loss benefits. We affirm on cross-appeal.
Under Ark.Code Ann. § 11-9-519(e)(1) (Repl.2002), permanent-total disability means inability, because of compen-sable injury, to earn any meaningful wages in the same or other employment. The wage-loss factor is the extent to which a compensable injury has affected the claimant’s livelihood. Logan Cnty. v. McDonald, 90 Ark.App. 409, 206 S.W.3d 258 (2005). In considering claims for permanent-partial disability benefits in excess of the employee’s percentage of permanent-physical impairment, the Commission may take into account, in addition to the percentage of permanent-physical impairment, such factors as the ^employee’s age, education, work experience, and other matters reasonably expected to affect his future earning capacity. Ark.Code Ann. § 11 — 9—522(b)(1) (Repl.2002).
When reviewing a decision from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm the decision if it is supported by substantial evidence. Lepel v. St. Vincent Health Servs., 96 Ark.App. 330, 241 S.W.3d 784 (2006). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. It is the Commission’s function to weigh the medical evidence and assess the credibility and weight to be afforded any testimony. Clairday v. Lilly Co., 95 Ark.App. 94, 234 S.W.3d 347 (2006).
Mr. Tucker testified that he is thirty-seven years old and has a high school education. He began working for the ap-pellee in 1997, and at the time of his injury he was a press operator earning from $18 to $22 an hour, depending on the press work that was available. On October 27, 2000, Mr. Tucker was trying to “open a mold that got stuck.” He described a “mold” as a “steel chamber that holds approximately sixty to eighty steel parts.” Upon trying to open the mold with a breaker bar, he sustained a compensable back injury. Mr. Tucker was diagnosed with a herniated disc at the L4-5 level, and did not return to work until ten months after the injury.
Mr. Tucker underwent the first of three surgeries on July 27, 2001. That surgery consisted of a laminectomy at L4-5 and partial discectomy and nerve-root decompression. |fiHe returned to work four weeks after that surgery and was assigned sedentary finishing work behind the press operators earning about $12 an hour. Mr. Tucker testified that he continued working in that capacity for two or three months, but that he reinjured his back.
On January 18, 2002, Mr. Tucker underwent a second laminectomy at L4-5 with partial discectomy and nerve-root compression. He was unable to return to work after the second surgery, and he underwent fusion surgery on October 10, 2002.
Mr. Tucker next returned to work in February 2003. He was assigned light duty picking up trash for $12 an hour, but when cold weather gave him trouble performing that job he was assigned to the storeroom, where he handed out supplies at the same rate of pay. He performed that job for about a year, but stated that his back condition gradually got worse and he was missing work because of his pain. The appellee relocated Mr. Tucker to a job in the lab, which he performed for only four hours before deciding he could not do the job. Mr. Tucker discontinued working in April 2004, but returned for one day in October 2005 “because I was not receiving any income and had to do something.” He worked a finishing job for eight hours that day, but testified that he could not get out of bed the following day due to back, hip, and leg pain.
Mr. Tucker maintained in his testimony that he has not worked since October 2005 because of sharp and constant pain related to his compensable back injury. He also testified that he was on daily medication that made him groggy or jittery. Mr. Tucker acknowledged that his vocational counselor, Tanya Owen, provided him with a list of potential jobs, but |fistated that he did not apply for any of them because he could not stay on his feet and was physically incapable. Mr. Tucker stated that he did not know of any job that he could perform for eight hours a day.
A functional-capacity evaluation (FCE) was performed on June 9, 2003. The results of that evaluation were that Mr. Tucker gave full physical effort and would not be able to return to his job as a press operator. However, Mr. Tucker was rated for sedentary to light work, and the FCE report indicated that he was capable of continuing the light-duty work that he was performing at that time.
Dr. Wayne Bruffett was the physician who performed all of appellant’s surgeries, and on June 19, 2008, he reported,
I have explained the FCE to Mr. Tucker as best I can, and I think he understands this. Hopefully his employer can accommodate him by making his current position a permanent one. If they cannot, then hopefully they have some other position within the company that fits the criteria of this FCE. If they do not have this either, then he may need to find some other kind of work. However, this is going to be difficult for him based on his age, education level, FCE results, etc. I do think he has reached a point of MMI. Based on the American Medical Association “Guides to the Evaluation of Permanent Impairment,” fourth edition, I would assign to him an impairment rating of 15% of the whole person.
On May 25, 2004, Dr. Bruffett reported that Mr. Tucker should make every effort to manage his symptoms nonoperatively utilizing an acceptable long-term regimen of pain medication. He further stated, “I really do not think it is going to be all that valuable or successful for him to try to go back to work at this time.” In a subsequent report, Dr. Bruffett said that he did not think Mr. Tucker could perform a light/sedentary job.
17Mr. Tucker was also under the care of Dr. D’Orsay Bryant. Dr. Bryant reported on March 25, 2004, “The patient asked me for a work excuse, and I told him I would not take him off work, that he could continue in his current light duty capacity.” On April 22, 2004, Dr. Bryant again reported that Mr. Tucker had requested that he be taken off work, and that again Dr. Bryant refused because Mr. Tucker had a light-duty job minimizing the stress on his back.
Another functional-capacity evaluation was performed on July 5, 2005. That FCE report indicated that Mr. Tucker put forth inconsistent and unreliable effort. However, Mr. Tucker did demonstrate the ability to work at least at a light-duty classification, occasionally lifting up to twenty pounds. In a subsequent report on September 10, 2005, Dr. Bryant assessed that, while Mr. Tucker’s true capacity to work is unknown, he does qualify for the light-duty classification.
Vocational counselor Tonya Owen commenced placement services for Mr. Tucker in January 2007. Ms. Owen testified that she had discussions with appellant, conducted some vocational testing, and relied on the previous functional-capacity evaluations. According to Ms. Owen, she directed Mr. Tucker to a free computer-skills training program, but he declined to attend the program. She also prepared a resume for him and found numerous jobs that she thought he could perform, including cashier, switchboard operator, and security guard. Ms. Owen testified that the highest paying job she referred to Mr. Tucker paid $8 |8an hour. In a progress report dated February 28, 2007, Ms. Owen reported that Mr. Tucker’s probability of success was poor and further stated,
It is unlikely that given the lack of activity in job placement services in the first 30 days that we will be successful in placing Mr. Tucker. Although leads have been identified, I have not been provided authorization from Mr. Tucker to fax his resume to potential employers. He has not gone in person to apply for these jobs. Therefore, employer contact is not being made for either open positions or with employers who would like Mr. Tucker’s application for their consideration.
As an opportunity to segue Mr. Tucker into employment status and to increase his vocational skills, I requested that he enroll in a free of charge computer literacy class through El Dorado adult education. It is my understanding that he has not done this. His lack of enrollment in class and his lack of follow up on job leads causes me to believe that he will be ultimately unsuccessful in returning to work.
On direct appeal, Mr. Tucker argues that the Commission erred in not finding him permanently and totally disabled and in limiting his permanent wage-loss disability to only 20 percent. Based on the evidence before the Commission, we hold that there was a substantial basis to support its finding that Mr. Tucker failed to prove that he was permanently and totally disabled. However, there was no substantial evidence to support the Commission’s award of only 20-percent permanent-partial disability.
In asserting his claim for permanent-total disability benefits, Mr. Tucker relies on his own testimony as well as the opinion of Dr. Bruffett indicating that there was no suitable employment within his physical restrictions. However, it was for the Commission to weigh the competing evidence, and there was evidence demonstrating that Mr. Tucker was not completely unable to earn meaningful wages. Both functional-capacity evaluations rated Mr. Tucker in the light-duty category of work, and even after his third surgery Mr. Tucker | Hin fact worked for more than a year in a light capacity. Moreover, Dr. Bryant refused to take Mr. Tucker off work pursuant to his opinion that light work was within Mr. Tucker’s limitations. And while Mr. Tucker complained about the effects of his pain medication, he was on medication when he returned to light duty and Dr. Bryant was aware of these medications. Because there was evidence to support the denial of permanent and total disability benefits, we affirm that finding.
As found by the Commission, Mr. Tucker did prove entitlement to permanent partial disability benefits. But there was no substantial evidence to support the conclusion that appellant suffered only a 20-percent reduction in earning capacity. The undisputed evidence showed that Mr. Tucker was earning from $18 to $22 an hour at his job as a press operator, which he can no longer perform due to his injury. The appellee returned him to light duty earning $12 an hour, and it is not clear whether that work is still available. While the vocational counselor identified jobs she thought Mr. Tucker could perform, she acknowledged that none paid more than $8 an hour. This evidence demonstrates that Mr. Tucker has sustained more than a 20-percent wage loss when comparing the wages paid for the press-operator job and the subsequent light work offered by the appellee. Therefore, we reverse and remand to the Commission to award a greater percentage of permanent wage-loss benefits consistent with the evidence presented.
We next turn to Cooper Standard Automotive’s cross-appeal. Its first argument is that the Commission erred as a matter of law in concluding that Ark.Code Ann. § ll-9-|505(b)(3)10 is inapplicable to a claim for permanent total disability, but instead provides only a defense to a claim for permanent-partial disability. We need not decide this issue because the Commission found that Mr. Tucker failed to prove that he was permanently and totally disabled, and we affirm that finding. Thus, the issue of whether the statute may be invoked to defend against a claim for permanent-total disability is a moot point.
Cooper Standard Automotive’s remaining argument is that the Commission erroneously awarded partial wage-loss benefits based on an unauthorized shifting of the burden of proof with regard to the application of Ark.Code Ann. § 11 — 9—505(b)(3). Specifically, the Commission found that the employer did not prove that Mr. Tucker acted unreasonably in refusing to cooperate with the job-placement counselor, and thus that the statute was not a bar to partial wage-loss disability. It is now argued that the burden of proof should have been on Mr. Tucker to show that his refusal to cooperate was reasonable, and further that he failed to meet that burden.
We do not agree with the argument that the Commission implemented the wrong burden of proof. It is true that the injured party bears the burden of proof in establishing entitlement to benefits under the Workers’ Compensation Act. See Clardy v. Medi-Homes LTC Servs. LLC, 75 Ark.App. 156, 55 S.W.3d 791 (2001). However, the statutory provision at issue provides a defense available to employers against claims for permanent wage-loss that might otherwise be sustainable by the claimant. In Johnson v. McKee Foods, 98 Ark.App. 360, 255 S.W.3d 478 (2007), this court held that an employer relying on the |ndefense enumerated in section 11-9-505(b)(3) must show that the claimant refused to participate in a program of vocational rehabilitation or job-placement assistance, or, through some other affirmative action, indicated an unwillingness to cooperate in those endeavors, and that such refusal to cooperate was without any reasonable cause.
Thus, it was Cooper Standard Automotive’s burden to establish this defense, and we affirm the Commission’s finding that it failed in its burden. It is undisputed that the vocational counselor identified a list of jobs and that Mr. Tucker made no effort to pursue those jobs or any other employment. However, Mr. Tucker thought it would serve no purpose to apply for these jobs given his inability to stand for extended periods, the pain associated with his compensable injury, and the effect of his pain medication. Whether or not Mr. Tucker was in fact capable of performing any of these jobs, the Commission did not find his lack of cooperation unreasonable under these cir cumstances, and we affirm that finding as being supported by substantial evidence.
Affirmed in part, reversed in part, and remanded on direct appeal; affirmed on cross-appeal.
GLOVER, BAKER, and BROWN, JJ., agree.
PITTMAN and GLADWIN, JJ., dissent. | [
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JOHN B. ROBBINS, Judge.
| ¶Appellant Bailey Buffalo, age twenty-two, was convicted of internet stalking of a child by a jury in Faulkner County. He was sentenced to serve six years in prison in addition to a $7500 fíne. Appellant appeals, arguing that (1) there was insufficient evidence that appellant believed that the persona he chatted with on-line was age fourteen; (2) there was insufficient evidence that appellant’s purpose in meeting this persona was to conduct inappropriate sexual acts; and (3) the trial court abused its discretion in admitting into evidence a cut-and-paste word document from the police computer system because it was not properly authenticated or the best evidence. After reviewing these assertions under the proper standards, we affirm appellant’s conviction.
The evidence leading to the charge and presented at trial is as follows. The Conway Police Department was conducting an undercover crimes-against-children investigation using 12the Yahoo instant-messaging program. Officer Brian Williams testified to his training and experience in investigating internet-stalking-of-a-child and his process of setting up a Yahoo account for that purpose. To set up the account, one must be at least eighteen, so for his computer account profile, he would deliberately type age 100 to prompt anyone who read his profile that his age was false. Williams testified that he would wait online in a chat room until someone initiated contact with him, which is what happened in this instance. Williams stated that all on-line chats like these are archived onto the hard-drive of the police computer system. Williams explained that when he receives comments from suspects that violate the law, he creates a computer folder for that suspect. Williams said that for each such conversation or exchange, he highlights the entire text to copy-and-paste it onto a Wordpad document page. This text is then placed in the suspect’s computer folder.
A pre-trial motion in limine to exclude the printout was denied, so at trial the prosecutor presented Williams with a nine-page printout, which he identified as an accurate depiction of his conversation with appellant. Appellant’s attorney objected to its admission again, asserting that this was not the actual archive and the font might have been different than that on the live chat. Williams responded that he could not be certain if this font was the same as the live chat, but that it was the reader who chose his own font. The trial judge admitted the printout into evidence. Williams continued his testimony that there was never any invisible font or font that would have been hard to read, from his perspective, in the chat. Williams stated that in his on-line chats, he is deliberately vague because he does not want to plead the other person. Rather, he wants the other person to tell him what they want to do.
Moving to this specific chat, Williams described that on the afternoon of January 31, 2008, a conversation was initiated appellant (on-line as “duckhunter50”) with him (on-line as “misty_webb2003”). The entire on-line exchange lasted approximately two and one-half hours, between 2:20 p.m. and 4:50 p.m. The officer asked appellant’s age, sex, and location, to which appellant replied that he was age twenty-two, a man, and living in Little Rock, by typing “22/m/lr.” The officer replied that he was a fourteen-year-old female living in Conway by typing, “14 f Conway.” Appellant’s next line read, “cool.” For the next twenty minutes, the two chatted about their hobbies and their boredom. Appellant asked if “Misty” had a boyfriend and if he could come keep her company; she explained that she did not have a boyfriend, nor did she have a car. “Misty” said that he could come see her when her mother was at work and her friends would not be around. “Misty” offered to skip the next day’s study hall at school. Appellant then said “my favorite activities usually involve takin clothes off, but we can just hang out too.”
By this time, appellant and “Misty” had been chatting on-line approximately an hour and twenty minutes. At about this point, appellant asked “would u come to the door in ur underwear?” and then later “how bout naked?” This progressed to appellant asking, “u like oral?.... u swallow? .... had a guy c * * in your mouth? ... would u?” “Misty” replied “sure,” to which appellant said, “cool.” Another officer, Melissa Grantham, took a cell phone call from appellant in the midst of the online chat. Grantham impersonated a teenage girl, |4and in that conversation, she and appellant made light chitchat and confirmed where they would meet. The conversation returned to on-line chatting, and toward the end of it, appellant said, “btw I don’t have any condoms so ur gonna have to be a good girl.” Concluding, appellant agreed to take a shower, drive to Conway, and meet “Misty” at the nearby Hobby Lobby store. When appellant arrived at the Hobby Lobby, Conway police arrested him. Appellant admitted that he was “duckhunter50.”
Officer Melissa Grantham testified that she assisted Officer Williams in this case by taking the telephone call from appellant, impersonating a young teenage girl. The conversation, recorded on a computer disc, was played for the jury. On it, there was light chitchat and confirmation of meeting at Hobby Lobby.
Thereafter, the State rested, and the defense moved for directed verdict. In it, defense counsel argued that there was no proof that appellant ever acknowledged that the other person was fourteen years old, particularly where it could not be proved with certainty to what comment appellant was responding, “cool.” Defense counsel added that there was no real proof that the discussions of a sexual nature were the reason that they later agreed to meet. The trial court denied the motion, stating that the proof was sufficient to survive the motion for directed verdict. The jury found him guilty, and this appeal followed.
When an appellant challenges the sufficiency of the evidence to support a conviction on appeal, this court’s test is whether there is substantial evidence to support the verdict. Britt v. State, 83 Ark.App. 117, 118 S.W.3d 140 (2003). Substantial evidence is evidence that is |Bof sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). In determining whether the evidence is substantial, evidence is viewed in the light most favorable to the State, considering only the evidence that supports the verdict. Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007). Circumstantial evidence may constitute sufficient evidence to support a conviction, but it must exclude every other reasonable hypothesis other than the guilt of the accused. Whitt v. State, 365 Ark. 580, 232 S.W.3d 459 (2006). The question of whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the trier of fact to decide. Id. The means to challenge the sufficiency of the evidence is via a motion for directed verdict. Ark. R.Crim. P. 33.1(a) (2009).
Under Arkansas Code Annotated section 5-27-306(a)(2)(C) (Supp.2007), a person commits internet stalking of a child if the person is twenty-one years of age or older and knowingly uses an internet service to seduce, solicit, lure, or entice an individual that the person believes to be fifteen years of age or younger in an effort to arrange a meeting with the individual for the pur pose of engaging in deviate sexual activity. Internet stalking of a child is a Class B felony if the person attempts to arrange a meeting with an individual that the person believes to be fifteen years of age or younger, even if a meeting with the individual never takes place. Ark.Code Ann. § 5-27—306(b)(1).
A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Gikonyo v. State, 102 Ark.App. 223, 283 S.W.3d 631 (2008). Because intent cannot be proven by direct evidence, the fact finder is allowed to draw upon common knowledge and experience to infer it from the circumstances. Id. Because of the difficulty in ascertaining a defendant’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his or her acts. Id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
Appellant herein argues that the State presented insufficient evidence showing that he believed that he was talking to someone fifteen years of age or under. He argues that the evidence only shows that “Misty” identified her age once, and that the chat might have been misread or not actually confirmed because people commonly type over each other in chat rooms. He also relies on the notion that any discussion of school, lack of a car, or living with a parent, could apply equally as well to a high school or college student. We disagree. While the jury could certainly infer from the context of the conversation that “Misty” might be in high school or college, the chat specifically stated at the outset that “Misty” was a fourteen-year-old female living in Conway. Viewing the evidence in the light most favorable to the State, we cannot say that there is no substantial evidence on this point.
Appellant also challenges the sufficiency of the evidence on the basis that while there was a great deal of sexual conversation early on, at the end, appellant was saying that he did not have condoms, indicating that he was abandoning any notion of sexual intercourse. We |7disagree. The statute requires proof of intent to engage in deviate sexual activity, which can but does not have to rise to the level of intercourse. Given the discussion regarding oral sex, we believe that the sufficiency of the evidence was properly presented to the jury.
Moving to appellant’s final point on appeal, he argues that the trial court abused its discretion in admitting the nine-page printout produced by Officer Williams. The evidentiary challenge is two-fold: that the printout was not an authentic rendition of the chat, and that the printout was not the best evidence because that would have been the actual archive. Evidentiary rulings are discretionary with the trial court, which will not be overturned absent an abuse of discretion and even then, only if prejudicial. See Bobo v. State, 102 Ark. App. 329, 285 S.W.3d 270 (2008); Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003).
Rule 901(a) of the Arkansas Rules of Evidence provides that: “The requirement of authentication ... as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” According to Rule 901, one example of authentication is the “testimony of a witness with knowledge that a matter is what it is claimed to be.” Ark. R. Evid. 901(b)(1). Authentication requirements are satisfied if the trial court, in its discretion, concludes that the evidence presented is genuine and, in reason able probability, has not been tampered with or altered in any significant manner. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002); Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001). To satisfy these requirements, every possibility of tampering need not |Rbe eliminated. Guydon, supra.
Arkansas Rule of Evidence 1002 provides: “To prove the content of a writing, ... the original writing ... is required, except as otherwise provided in these rules.... ” “If data are stored in a computer ... any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original.’ ” Ark R. Evid. 1001(3). See also Bobo v. State, supra. Arkansas Rule of Evidence 1003 provides that a duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity or continuing effectiveness of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
Here, Williams was a person qualified to testify as a witness with knowledge that this printout was what it was claimed to be, that it accurately reflected his online chat with appellant, and that it was readable to him. The trial court did not abuse its discretion by deeming this printout sufficiently authenticated by the officer who conducted the chat and who converted it to a printable Wordpad document. Thus, it was properly admitted as an original or as a duplicate under our Rules of Evidence. Appellant cites other appellate cases where the computer evidence was more strongly authenticated and determined to be viable as either an original or duplicate, but those cases do not render this one reversible as a matter of law. See, e.g., Dirickson v. State, 104 Ark.App. 273, 291 S.W.3d 198 (2009); Bobo v. State, supra. We hold that the trial court did not abuse its discretion in admitting the printout into evidence because it was properly authenticated and was admissible as a duplicate or an 19original.
Affirmed.
VAUGHT, C.J., and PITTMAN, J., agree. | [
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DAVID M. GLOVER, Judge.
| lAppellants, Nathan LeRoy Poff, Jr., John Laurence Poff, and Jennifer Lynn Poff Beam, are the adult children of Dr. Nathan LeRoy Poff, who died on July 26, 1994. At the time of his death, Dr. Poff was married to his second wife, appellee Carolyn Sue Poff. Appellee is not the appellants’ mother. She was eventually appointed as personal representative of the estate. A dispute arose among the parties during the administration of Dr. Poffs estate, and a family-settlement agreement was entered in July 1996. Approximately ten years later, additional property interests belonging to Dr. Poff were discovered in the form of mineral rights to 615 acres located in Cleburne County. It is undisputed that those property interests were unknown to any of the parties at the time the family-settlement agreement was entered.
|2On August 13, 2007, appellants sought to quiet title to the mineral rights in them. Appellee answered their complaint and counterclaimed that appellants were barred by the terms of the family-settlement agreement from claiming any interest in the mineral rights. On June 16, 2008, appellee filed a motion for summary judgment. Appellants contended in response that summary judgment was not appropriate because the meaning of the family-settlement agreement was in dispute in that it was their intent to settle issues that existed at the time the agreement was executed, not unknown matters such as subsequently discovered property.
Appellee filed a motion for declaratory judgment on November 8, 2008, asserting ownership of the mineral rights. Following a hearing on February 19, 2009, the trial court entered its decree on April 14, 2009, denying the relief sought by appellants in their complaint to quiet title and determining that appellee was the sole and rightful owner of the minerals. This appeal followed in which appellants contend that the “agreement did not terminate the rights of the Poff children in and to subsequently discovered mineral rights not listed in the estate inventory, nor known to exist by any of the parties, and the circuit court erred in ruling that the terms of the agreement gave Peedin sole ownership of the decedent’s mineral interests.” We affirm.
| ¡¡Standard, of Review
This case was decided by the trial court on appellee’s motion for declaratory judgment. We review a circuit court’s find- mgs of fact from a bench trial for clear error, giving due regard to the opportunity of the circuit court to judge the credibility of the witnesses. See Ark. R. Civ. P. 52(a); see also Poff v. Peedin, 2010 Ark. 136, 366 S.W.3d 347 (answering certified question regarding appropriate standard of review). 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. Crane v. Taliaferro, 2009 Ark. App. 336, 308 S.W.3d 648.
This appeal also clearly involves our review of the trial court’s construction of the terms of the family-settlement agreement. Accordingly, our standard of review for contract interpretation is implicated as well. When a contract is free of ambiguity, its construction and legal effect are questions of law for the court to determine. Tri-Eagle Enterprises v. Regions Bank, 2010 Ark. App. 64, 373 S.W.3d 399. When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. Id. As explained by our supreme court in Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365, 371, 255 S.W.3d 424, 429 (2007):
Our standard of review for contract interpretation has been stated often:
|4The first rule of interpretation of a contract is to give to the language employed the meaning that the parties intended. In construing any contract, we must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the parties themselves viewed it. It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement.
See also Alexander v. McEwen, 367 Ark. 241, 239 S.W.3d 519 (2006). It is a well-settled rule that the intention of the parties to a contract is to be gathered, not from particular words and phrases, but from the whole context of the agreement. Roberts Contr. Co., Inc. v. Valentine-Wooten Road Public Facility Bd., 2009 Ark. App. 437, 320 S.W.3d 1. The court is to give great weight to the construction of the contract given to it by the parties, and it may look to the conduct of the parties to determine their intent. Id. When a contract is free of ambiguity, its construction and legal effect are questions of law for the court to determine. Id. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Id. The determination of whether ambiguity exists is ordinarily a question of law for courts to resolve. Id.
Here, it is undisputed that none of the parties involved in this matter were aware of the mineral rights at issue at the time the family-settlement agreement was entered, and, consequently, the mineral rights were not listed as part of the estate’s inventory. There are no allegations of fraud. As noted by appellants, Ark. Code Ann. section 28-53-119 allows for the reopening of an estate under certain conditions, including the discovery of additional property. But here, the estate had never even been properly closed. Therefore, unless the lfiterms of the family-settlement agreement bar consideration of the newly discovered mineral rights, it is clear that a trial court could determine the proper distribution of such property.
The family-settlement agreement provided in pertinent part:
WHEREAS, the parties have been involved in litigation pertaining to the interpretation of certain documents admitted to probate as the Last Will and Testament of Nathan LeRoy Poff, deceased, in Cleburne County Probate No. P 94-51; the decision in this matter having been appealed to the Arkansas Court of Appeals, in Arkansas Court of Appeals No.: CA95-1B02; and
WHEREAS, the parties have also been involved in litigation pertaining to the foreclosure of certain real and personal property belonging to the Estate of Nathan LeRoy Poff and Carolyn Sue Poff in Cleburne County Chancery No.: E 95-109-1; the decision in this matter having been appealed to the Arkansas Court of Appeals, in Arkansas Court of Appeals No.: CA 95-1303; and
WHEREAS, the parties wish to avoid further litigation necessary to finally resolve the issues pertaining to all pending litigation; and
WHEREAS, the parties believe that it is in the best interest of all involved to enter into a stipulated agreement among and between themselves;
NOW, THEREFORE, all parties agree as follows:
1. For and in consideration of $60,000.00, $20,000.00 to be paid to each Poff child, the Poff Children hereby settle any and all interest they have as beneficiaries, and/or heirs-at-law of Nathan L. Poff, deceased in Cleburne County Probate Case P 94-51. The sum of $60,000.00 for the three Poff Children shall be paid immediately upon the delivery of this document executed by the three Poff Children, by Hoyt Thomas, their attorney, to Michelle Strause, Attorney for Carolyn Sue Poff. This settlement does not bar the Poff Children from seeking a deficiency judgment against the Nathan L. Poff Estate in Cleburne Chancery Case No: E-95-109-1.
3. This agreement settles all matters and outstanding claims between the parties with the exception of the payment of the foreclosure decree hereinafter set forth.
|fi7. Both appeals in the Arkansas Court of Appeals, No CA 95-1302 and CA 95-1303 shall be dismissed.
8. After dismissal of the two cases appealed to the Arkansas Court of Appeals, the parties hereto agree to enter their appearance in the Cleburne County Probate Court and the Cleburne County Chancery Court for the purpose of reducing this agreement to a Court Order in each case.... With the execution of the agreement, ..., it is understood that Carolyn Sue Poff may administer the Estate of Nathan L. Poff according to Arkansas law without any further obligation or notice to the Poff Children.
10. This Agreement shall bind the heirs, administrators, executors, and assigns of the parties hereto.
Appellants contend that the language of the family-settlement agreement was clearly intended to address only existing claims between the parties and the divi sion of property that was known to the parties, not undisputed and unknown property rights. In support of their position, they emphasize the settlement-agreement language that ties the agreement to the litigation that was pending between the parties in designated case numbers and point out that the estate inventory and amended inventory did not list the mineral property rights at issue here. They also rely upon the fact that the agreement had no language addressing the possibility of subsequently discovered property nor any language releasing all claims, “known or unknown.” With respect to the contract provision settling “all matters and outstanding claims between the parties,” they contend that there were no outstanding claims between the parties regarding anything other than the property that was known to exist in the estate. They also analogize the settlement agreement to a release signed by an injured party 17concerning an automobile collision, and argue that “in the absence of express wording that the release covers injuries or other claims that are unknown at the time of the execution of the release, the majority of states have held that such a release does not cover future claims for unknown injuries.”
Appellee counters, in essence, that the trial court did not err in concluding that the parties intended by their agreement to settle the entire estate and that, under the terms of that agreement, she was entitled to the subsequently discovered mineral rights. Both parties acknowledge that there are no Arkansas cases directly on point with the facts presented here.
The trial court examined the settlement agreement, and, clearly finding it to be unambiguous, concluded that appellee was the sole and rightful owner of any mineral rights owned by Dr. Poff at the time of his death, citing the following language in its final decree:
3. Paragraph 1 of the Family Settlement Agreement states: “For and in consideration of $60,000, etc., the Poff Children hereby settle any and all interest they have as beneficiaries” with the exception of their right to seek “a deficiency judgment against the Estate in Cleburne Chancery Case No. E-95-109-1.”
4. Paragraph 3 of the Family Settlement Agreement states: “This agreement settles all matters and outstanding claims between the parties.”
5. This Court finds that the term “outstanding claims” contained in said paragraph 3 included any and all claims that could have been asserted through a search of the public record.
(Emphasis in original.)
After our review of the contract language and the arguments raised by the parties in this appeal, we hold that there was no clear error in the trial court’s findings of fact and that there was no error of law in its construction of the family-settlement agreement.
| sAffirmed.
VAUGHT, C.J., and GRUBER, J., agree.
. “All orders, judgments, and decrees under this chapter [on declaratory judgments] may be reviewed as other orders, judgments, and decrees.” Ark.Code Ann. § 16-111-109 (Repl.2006). | [
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JOHN B. ROBBINS, Judge.
| tAppellant Connie S. York and appellee James A. York, Jr., were married on July 5, 1980, and were divorced by a decree entered on January 24, 2007. Subsequent to the divorce, each party filed various contempt motions against the other party alleging noncompliance with certain provisions of the divorce decree. Relevant to this appeal, a controversy arose between the parties regarding the meaning and effect of the divorce decree. In particular, there were competing motions as to the ownership of a business called York Bulldozing, Incorporated, and the parcel of real property where it is located at 10227 White Lane in Belleville. This business was incorporated by the parties during their marriage, and prior to the divorce Mrs. York owned 51 percent of the shares, while Mr. York owned 49 percent of the shares.
|2On May 8, 2008, Mr. York filed a petition for declaratory judgment and specific performance. In the motion, he alleged that pursuant to the parties’ property settlement agreement, upon their divorce he was awarded the business and the real property where it is located. Mr. York asked that Mrs. York be ordered to quitclaim her interest in the business located at 10227 White Lane. In her response, Mrs. York maintained that the business and real property were jointly owned by the parties, and she requested a hearing to resolve the dispute. Mrs. York took the position that there was never any agreement between the parties as to the disposition of the business, and that the divorce decree did not award the business to Mr. York as he claimed.
On January 30, 2009, the trial court entered a letter opinion stating that although Mr. York’s petition was styled a petition for declaratory judgment, it was more in the nature of a summary judgment. Upon reviewing the pleadings, affidavits, and the transcript of the November 20, 2006, hearing in contemplation of the parties’ divorce, the trial court found that there was no substantial issue of material fact pertaining to the bulldozing business and that Mr. York was the sole owner of the business. The trial court set an evi-dentiary hearing for consideration of the issue of the real property, and after the hearing the trial court entered an order on June 24, 2009, which incorporated its prior letter opinion. In its June 24, 2009, order, the trial court awarded Mr. York all of the real property pursuant to the divorce decree, which included the parcel of land where York Bulldozing is located at 10227 White Lane.
[aMrs. York now appeals from the June 24, 2009, order and the incorporated letter opinion. Mrs. York argues that the trial court erred by granting summary judgment to Mr. York on the issue of ownership of the corporate shares of the business. She further asserts that the trial court erred in determining that she transferred to Mr. York her ownership of 51 percent of the York Bulldozing shares by operation of the divorce decree. Finally, Mrs. York contends that the trial court erred in finding that she was not the owner of a one-half undivided interest in the real estate known as 10227 White Lane. We agree that the trial court erred in granting summary judgment on the issue of the corporate shares, and we reverse and remand for a trial on that issue. We affirm the trial court’s finding that the divorce decree awarded all of the real property to Mr. York.
The decree of divorce entered on January 24, 2007, was signed by both parties and provided in pertinent part:
(8). That the Plaintiff [Mr. York] shall pay to the Defendant [Mrs. York] $5,000.00 per year beginning July 1, 2007 for six (6) consecutive years for the equity in the real property for a total payment of $30,000.00.
(9). The Plaintiff shall receive the marital property known as 10199 White Lane, Belleville, Arkansas 72824 and shall be responsible for the debt thereon and shall hold the Defendant harmless from same. The Defendant shall execute a Quitclaim Deed to Plaintiff. That the Plaintiff shall claim the mortgage interest deduction for income purposes.
(10). The Plaintiff shall keep all debt associated with York Bulldozing, Inc.
14,(15). The Plaintiff shall keep all of the business equipment currently in his possession and be responsible for any debt on said equipment and shall hold the Defendant harmless from same.
(21). That each party shall maintain and keep his or her own personal property, their IRAs, retirement, 401k, accounts exclusive of any claim from the other and agree to execute any documents necessary to release his or her interest in the other party’s account.
Although the parties did not have a written property settlement agreement, they testified as to the terms of their agreement at the November 20, 2006, hearing. At the conclusion of the hearing, the trial court stated that it approved the parties’ property settlement agreement. During that hearing, Mrs. York testified that she and her husband had reached a settlement agreement disposing of all of their property and debts. Mrs. York stated that Mr. York agreed to pay her $5000 per year for six years for her part of the equity in the real property, and that he was going to receive the marital property at 10199 White Lane. Mrs. York further testified that Mr. York was going to keep all debts associated with York Bulldozing, and that he was to keep all equipment associated with the business and be responsible for any debt on it. Mrs. York indicated that she thought she had been treated fairly in the property settlement agreement, and she asked the trial court to approve it. In Mr. York’s testimony, he stated that he listened to his wife’s testimony about the property settlement agreement and was satisfied with his agreement with her.
After the present controversy arose, a hearing was held on May 15, 2009, to determine the effect of the divorce decree with regard to the real property where the bulldozing business his located. Mr. York explained that the parties acquired two tracts of property during their marriage that had the same address, which was 10199 White Lane. In 1994 they were deeded 1.12 acres where they built the marital home. In 2005, they purchased an adjacent tract of land consisting of 0.35 acres where a shop was built and they operated York Bulldozing. Mr. York indicated that 10199 White Lane was the address for all of this property when their property settlement agreement was approved by the trial court at the November 20, 2006, hearing. However, the address for the business was subsequently changed to 10227 White Lane. Charles Smith, the Yell County Emergency and 911 Director, swore out an affidavit stating that he was contacted by phone to establish a separate address for York Bulldozing, and that this was done on December 7, 2006. Mr. Smith could not recall who made the request.
Mr. York testified that he did receive from Mrs. York a quitclaim deed to the property where the house sits, but not to the property where the business is located. He maintained that under their agreement he was to receive all of the real property listed under the address of 10199 White Lane, which at that time included York Bulldozing. Mr. York stated that their agreement provided that he was to receive the business.
Randall Morris is employed with Enter-gy, and he testified that the utility account for 10199 White Lane was established in May 2002. He further testified that a separate account was created for 10227 White Lane on June 80, 2006, and that there were two different meters. However, an invoice from Entergy to York Bulldozing mailed on December 12, |⅜2008, showed the service location as 10199 White Lane. It was not until the following month that the Entergy invoice showed the address for York Bulldozing as 10227 White Lane.
Mrs. York testified that when they entered into the property settlement agreement prior to their divorce, she only agreed to give Mr. York the property where the marital home is located. She said that the $30,000 to be paid by Mr. York represented her equity in the home. Mrs. York indicated that the parties never came to any agreement about how to dispose of the real property where the business sits, and she was under the impression that she still owned this property as tenants in common with Mr. York after the divorce.
On cross-examination, Mrs. York acknowledged that since the divorce she has not paid property taxes on the property in which she claims an interest, and she assumed that Mr. York was paying the taxes. Mrs. York further testified that Mr. York has had the use of the business property since their divorce, and that she has not paid any of the utilities to the property. Mrs. York acknowledged that she was the one who contacted Entergy and requested a new address for the business property.
Mrs. York’s first argument on appeal is that the trial court erred by granting summary judgment to Mr. York on the issue of the corporate shares of the bulldozing business. She contends that summary judgment was inappropriate because Ark. R. Civ. P. 56 specifically requires a motion for summary judgment as a prerequisite for considering or granting that |7relief. Mrs. York also complains that she was not put on adequate notice before the trial court granted summary judgment.
We hold that the trial court did not err procedurally in granting summary judgment on the issue of the corporate shares of the business. It is true that Mr. York did not file a motion for summary judgment. However, such a motion is not always required. E.g., B.G. Coney Co. v. Radford Petroleum Equip. Co., 287 Ark. 108, 111-12, 696 S.W.2d 745, 748 (1985); compare 2200 Commercial Street Warehousing, LLC v. Hastings Dev. Co., Inc., 98 Ark.App. 316, 318-19, 255 S.W.3d 488, 489-90 (2007). The dispositive inquiry is whether the circumstances put the parties on notice that the court was considering entry of summary judgment and gave the parties the opportunity to object and make a record on whether genuine issues of material fact existed. B.G. Coney, supra. Rule of Civil Procedure 12(c) illustrates how • a case can move to the summary-judgment stage without a party specifically moving for that relief. Rule 12(c) provides:
Motion for Judgment on the Pleadings. After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.
On December 2, 2008, the trial court entered an order directing Mr. York to file a brief that detailed his position concerning ownership of the business stock in question, and Mrs. York was given ten days to file a responsive brief. The order notified the parties that |s“the Court will then make a decision concerning the issues, and make a ruling as to whether testimony is required or a hearing to be scheduled.” Mr. York filed his brief in support of his petition for declaratory judgment on the same day the above order was filed. He attached five exhibits, including the transcript of the divorce hearing, bank documents, Entergy bills, and a letter from the Yell County 911 Office of Emergency Management. Mr. York said that he was seeking a declaration of law, not summary judgment. Mrs. York filed her response on December 18, 2008. She argued that there were numerous facts in dispute, which required an evidentiary hearing. She supported her argument with seven exhibits: deeds, tax returns, and affidavits. Mr. York replied to that response on the following day. About six weeks later, the trial court treated Mr. York’s petition as a motion for summary judgment and ruled that the business was his sole property as a matter of law. The court also ruled that a trial was needed on the real-property issues.
The trial court’s order directing the parties to file briefs made it evident that the trial court would be deciding whether there were any issues of fact that would require an evidentiary hearing to be scheduled. In Mr. York’s brief he requested a finding regarding the legal standing of the parties, which he asserted was a declaration of law, not facts. In Mrs. York’s response, she demonstrated her knowledge that summary judgment was at that time being contemplated. In this regard, she argued that there were facts still in dispute and that she was entitled to a hearing to resolve the disputed facts. In his reply to her response, Mr. York argued that “this Court has the authority and jurisdiction is proper for the Court 19to enter such a Declaratory Judgement and no hearing or trial is required or necessary as said judgment would be a finding of law, not a finding of fact.”
Summary judgment should be granted when there are no issues of genuine fact and a party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56(c)(2). Mr. York sought judgment as a matter of law on the pleadings. He and Mrs. York, however, expanded the record beyond the pleadings by filing numerous exhibits, including affidavits. The circuit court notified both parties that it was considering whether to rule as a matter of law or needed to hold an evidentiary hearing. The court’s consideration of evidentiary materials beyond the pleadings converted what was essentially a Rule 12(c) request for relief into a summary-judgment situation. Because the circuit court notified the parties of its intentions, and both parties responded by submitting evidentiary materials along with their legal arguments, the circuit court did not err as a matter of procedure in considering whether the stock and real-property issues were ripe for summary judgment. B.G. Coney, 287 Ark. at 111-12, 696 S.W.2d at 748.
Mrs. York’s next argument is that the trial court erred in determining that she transferred her ownership of 51 percent of the shares of York Bulldozing by operation of the divorce decree, thus making Mr. York the sole owner of the business. Relying on Linn v. Miller, 99 Ark.App. 407, 261 S.W.3d 471 (2007), she asserts that the trial court lacked subject-matter jurisdiction to adjudicate an issue pertaining to marital property rights that was not raised when the divorce decree was entered. Even if a trial court purports to be clarifying |10or interpreting a prior decree of divorce, if the actual effect is to reform or rewrite the parties’ independent agreement, the appellate court will look to the actual effect of the trial court’s action and determine whether jurisdiction exists. See Linn, supra. In the present case, Mrs. York asserts that the trial court sought to invoke jurisdiction to act by purporting to interpret the divorce decree in a manner proscribed by our holding in Linn, supra. She notes that the divorce decree does not mention the shares of stock of York Bulldozing, and submits that it contains no language divesting her of her shares. Because the trial court lacked jurisdiction to determine ownership of the business, Mrs. York ar gues that its decision in this regard must be reversed.
Mrs. York further asserts that, even if we determine that the trial court had jurisdiction, the trial court clearly erred in finding that she transferred her interest in the business. She maintains that the divorce decree contained no language effectuating any transfer of stock, and that she was entitled to the benefit of her bargain with Mr. York, which consisted of their property settlement agreement that did not involve the business. For these reasons, she asks that the case be remanded and the trial court ordered to confirm her continued ownership of 51 percent of the shares of York Bulldozing.
Rule 60 of the Arkansas Rules of Civil Procedure governs circumstances in which a trial court may grant relief from a decree already entered, and Rule 60(a) allows a trial court to modify a judgment for certain purposes within ninety days. Rule 60(c) allows a trial court to modify a decree after the expiration of ninety days for one of several enumerated reasons. | n However, we hold that the provisions of Rule 60 do not govern in this case because the order being appealed from did not modify the divorce decree, it interpreted the decree and enforced it.
In Ford v. Ford, 30 Ark.App. 147, 783 S.W.2d 879 (1990), we recognized that a trial court retains the power to clarify or interpret a prior decree for more than ninety days in order to more accurately reflect the court’s original intention. When the divorce decree is ambiguous, the trial court has jurisdiction to make changes that clarify what the court originally intended. Abbott v. Abbott, 79 Ark.App. 413, 90 S.W.3d 10 (2002). In the present ease, the trial court was vested with jurisdiction to interpret and enforce its decree, which was entered pursuant to the parties’ property settlement agreement.
Mrs. York argues that even if the trial court had jurisdiction, as we now hold, its decision to award all of the interest in the business to Mr. York was clearly erroneous. However, because this issue was decided on summary judgment the clearly erroneous standard of review is not applicable. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Ganey v. Kawasaki Motors Corp., U.S.A., 366 Ark. 238, 234 S.W.3d 838 (2006). Because there were genuine issues of material fact to be litigated with respect to the parties’ property settlement agreement as pertains to the corporate shares, we agree that summary judgment was not an appropriate disposition on this issue.
112It is true, as the trial court noted, that the divorce decree awarded Mr. York the business equipment and provided that he keep all debt associated with the business. However, the divorce decree did not specifically address the corporate shares, and it contained a provision that each party shall keep his or her personal property. Prior to its ruling on the issue, the trial court was presented with Mrs. York’s affidavit, wherein she swore under oath: Mrs. York’s mother swore out an affidavit stating that it was never Mrs. York’s intent to relinquish her rights and interests in the business at the time of her divorce. We doubt the evidentiary value of the mother’s affidavit because it recites that her personal knowledge of the disputed issue was based on what Mrs. York had told her. Swindle v. Lumbermens Mut. Cas. Co., 315 Ark. 415, 421, 869 S.W.2d 681, 684 (1993). While it was the trial court’s duty to interpret the parties’ property settlement agreement as reflected in the divorce decree regarding ownership of the business shares, the decree, the hearing transcript, Mrs. York’s affidavit, and other materials demonstrate that there were material issues of disputed fact regarding the parties’ agreement. Therefore, summary judgment was improper and we remand for a trial to be held on that issue.
Prior to, during and after our divorce, James and I had several heated discussions about the bulldozing business that we had established and are co-owners of, and which I am still President and the majority shareholder of. Because we could not reach an agreement about the business without extreme confrontations at that time, I made it very clear to him that I was not giving up my interests in our business and that we would address those issues when we could discuss and decide on them rationally.
| lsMrs. York’s remaining argument is that the trial court erred in finding that she was not a one-half owner of the real estate known as 10227 White Lane, where the bulldozing business is located. This factual determination was made by the trial court after a trial on the issue, and such findings of fact are not reversed unless clearly erroneous. See Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). A finding of fact is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002).
Under her final point, Mrs. York again challenges the trial court’s subject-matter jurisdiction on the basis that only the marital property known as 10199 White Lane was divided upon divorce, and that any disposition of the property at 10227 was an unauthorized modification of the decree. Mrs. York further argues that even if the trial court had jurisdiction its award of the property to Mr. York was clearly erroneous. She notes that there were two separate deeds for the property where the marital home is located and the business property, and submits that their agreement and the divorce decree only pertained to the marital-home property at 10199 White Lane. Mrs. York contends that she never divested her interest in the business property at 10227 White Lane, and that the trial court clearly erred in so finding.
We hold that the trial court had jurisdiction to decide ownership of the business property for the same reasons we outlined in the previous point. Contrary to appellant’s contention, the trial court was again interpreting and clarifying its prior divorce decree, as 114opposed to modifying it. We also hold that the trial court did not clearly err in awarding all of the real property to Mr. York, including that located at 10227 White Lane, pursuant to the terms of the divorce decree. Paragraph eight of the divorce decree provided that Mr. York shall pay Mrs. York a total of $30,000 for the equity in the real property, without limiting the extent of real property being awarded to Mr. York. It is true, as Mrs. York asserts, that the decree specifically provided that Mr. York shall receive the marital property known as 10199 White Lane, and there was no reference in the decree to 10227 White Lane. However, there was evidence demonstrating that at the time the parties entered into the property settlement agreement, both tracts of real property were known as 10199 White Lane. While there was an address change of the business to 10227 White Lane, the trial court concluded that all of the marital real property was contemplated in the parties’ agreement and awarded to Mr. York pursuant to the decree. Under the circumstances of this case, we are not left with a definite and firm conviction that this interpretation of the decree was a mistake.
Affirmed in part; reversed and remanded in part for further proceedings consistent with this opinion.
KINARD and MARSHALL, JJ., agree. | [
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BILL H. WALMSLEY, Judge.
|,The State charged XOP with rape in the juvenile division of the Crawford County Circuit Court. Although the State did not move to amend its petition for adjudication, the trial court adjudicated XOP delinquent for committing second-degree sexual assault. XOP argues that his due-process rights were violated because he was not given notice that he was being accused of second-degree sexual assault. We affirm as modified.
12At the adjudication hearing, testimony by the witnesses was inconsistent regarding the circumstances on the night of the incident. The evidence showed that the victim, JA, had overnight visitors at her apartment, one of whom was her former boyfriend, XOP. There was no dispute that JA permitted XOP to sleep in her bed. According to JA, she placed a pillow between their bodies and warned XOP to “stay away” from her. JA stated that, while XOP pleaded with her to resume their romantic relationship, she rejected his advances. JA testified that, sometime during the night, XOP penetrated her anally. XOP testified that it was consensual sex.
At the conclusion of the hearing, the trial court ruled that the State had proved sexual assault in the second degree, rather than rape. The trial court stated:
If this was in front of a jury then the question would be whether or not a lesser included offense or another offense was proven and considered by the jury. I don’t think that because it’s a bench trial there’s any restriction on me considering what crime may have been proved whatever the State charged. In a jury determination that would be different, but I think because it’s in front of the court then it’s up to me to figure that out.
Defense counsel objected to the trial court’s ruling:
We object to the court making an adjudication on any charge other than what was charged. There was no mention by the State to find my client true (sic) and conform the pleadings to the proof. There was no request by the prosecutor to include any lesser included offense. We are not on notice of any lesser included offenses....
While proceedings in a juvenile court need not conform with all the requirements of a criminal trial, primarily because of the special nature of the proceedings, essential requirements of due process and fair treatment must be met. Golden v. State, 341 Ark. 656, 21 S.W.3d 801 (2000). “Notice, to comply with due process requirements, must be given ^sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must ‘set forth the alleged misconduct with par ticularity.’ ” In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428,18 L.Ed.2d 527 (1967).
XOP was charged with rape uhder Ark.Code Ann. § 5-Í4-103(a)(l) (Supp. 2011), which provides that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. “Sexual intercourse” means penetration, however slight, of the labia majora by a penis. Ark.Code Ann. § 5-14-101(11) (Supp.2011). In relevant pqft, “deviate sexual activity” means any act of sexual gratification involving the penetration, however slight, of the anus or mouth of a person by the penis of another person. Ark.Code Ann. § 5-14-101(l)(A).
XOP was adjudicated delinquent by reason of committing second-degree sexual assault under Ark.Code Ann. § 5-14-125(a)(1) (Supp.2011), which provides that a person commits sexual assault in the second degree if the person engages in sexual contact with another person by forcible compulsion. “Sexual contact” is defined as any act of sexual gratification involving the touching, directly or through clothing, of the sex orgaps, buttocks, or anus of a person or the breast of a female. Ark.Code Ann. § 5-14-101(10).
On appeal, XOP maintains that the trial court violated his right to due process in adjudicating him delinquent on an uncharged offense of which he had no notice. XOP does not argue that second-degree sexual assault is not a lesser-included offense of rape.
The determination of whether an offense is a lesser-included offense of another is governed by Ark.Code Ann. § 5-l-110(b) (Supp.2011), which provides in relevant part, that Ran offense is included in an offense charged if the offense is established by proof of the same or less than all of the elements required to establish the commission of the offense charged. Ark. Code Ann. § 5-l-110(b)(l). Forcible compulsion is an element of both rape and second-degree sexual assault. The State alleged that XOP committed an offense against JA by sexual intercourse or deviate sexual activity, and we hold that those acts necessarily involve “sexual contact.” See Speer v. State, 18 Ark.App. 1, 8, 708 S.W.2d 94, 98 (1986) (holding that first-degree sexual abuse is a lesser-included offense of attempted rape in that both offenses contain the element of forcible compulsion, and the sexual acts of each overlap and contain the same elements in that “[bjoth sexual intercourse and deviate sexual activity necessarily involve the touching of sexual organs and/or the anus of another”). Thus, second-degree sexual assault under Ark.Code Ann. § 5-14-125(a)(1) is a lesser-included offense of rape under Ark.Code Ann. § 5-14-103(a)(1).
In Cokeley v. State, 288 Ark. 349, 705 S.W.2d 425 (1986), the defendant was charged with rape by sexual intercourse, but not deviate sexual activity. The supreme court noted that |Bthe issue was not the manner of rape but whether rape by forcible compulsion had occurred. Where the defendant was aware that the victim had alleged that both sexual intercourse and oral sex occurred, and the prosecutor repeated those allegations in his opening statement, the defendant could not claim surprise by evidence of deviate sexual activity. Here, the facts are even more compelling given that XOP confirmed through his testimony that he engaged in deviate sexual activity, which conclusively established “sexual contact” because XOP could not have penetrated JA’s anus without touching her. The only issue in dispute was whether the act was consensual or the result of forcible compulsion.
XOP was without question entitled to notice of the charges against him. XOP came prepared to defend against rape, and the only disputed issue involved forcible compulsion, an element common to both rape and second-degree sexual assault under the specific subsections involved here. By virtue of the fact that XOP was on notice of the greater offense, he cannot claim surprise by the trial court’s true finding as to the lesser-included offense.
Here, the trial court did no more than appellate courts have done when the circumstances warrant it. “When the proof offered supports a conviction on a lesser included offense but not the offense the accused was convicted of, we may reduce the punishment....” Smith v. State, 352 Ark. 92, 104, 98 S.W.3d 433, 440 (2003); see also Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977) (where proof did not support jury’s finding of possession of a controlled substance with intent to deliver but did support lesser-included offense of mere possession, the supreme court reduced punishment). Also, revocations are upheld based on lesser-included offenses. Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992); Willis v. State, 76 Ark.App. 81, 62 S.W.3d 3 (2001) (evidence may be insufficient in probation-revocation proceedings to sustain allegation that appellant committed specific offense, but revocation will be sustained if evidence establishes lesser-included offense).
Finally, we note that the trial court’s order indicates that XOP was adjudicated delinquent on an alternative basis — pursuant to Ark.Code Ann. § 5-14-125(a)(5)(h). That section provides that a person commits sexual assault in the second degree if, being a minor, he engages in sexual contact with another person (i) who is less than fourteen years of age and (ii) is not the person’s spouse. There was no dispute at the hearing that the victim was over the age of fourteen at the time of the incident. In this regard, the trial court erred, but because XOP was also adjudicated delinquent for committing the offense under Ark.Code Ann. § 5-14-125(a)(1), we affirm as modified.
Affirmed as modified.
GLOVER, J., agrees.
VAUGHT, J., concurs.
. The trial court’s order incorrectly asserts that the State moved to amend its petition to include second-degree sexual assault and that XOP was advised of the amended charge pri- or to the hearing.
. XOP’s second point is that there was insufficient evidence to support a charge of rape. As a general rule, the appellate courts of this state will not review issues that are moot. Donaldson v. State, 2009 Ark. App. 119, 302 S.W.3d 622. A case becomes moot when any judgment rendered would have no practical legal effect upon a then existing controversy. Id. Given that XOP was not adjudicated delinquent for committing rape, this issue is moot and therefore will not be addressed.
. In Martinez v. State, 2014 Ark. App. 182, 432 S.W.3d 689, Martinez was charged with rape but ultimately convicted of second-degree sexual assault. This court reversed and dismissed the conviction, holding that the trial court erred in permitting the State to amend its information to include a charge of second-degree sexual assault because the amendment changed the nature of thfe offense charged and resulted in unfair surprise given that Martinez came prepared to defend against an offense involving the essential element of penetration, as qpposed to mere touching. Martinez is distinguishable on several bases. Martinez involved criminal proceedings, as opposed to juvenile-delinquency proceedings, which are not criminal in nature. See M.M. v. State, 350 Ark. 328, 88 S.W.3d 406 (2002). Here, the State did not seek to amend its petition for adjudication to include second-degree sexual assault. Moreover, the Martinez court did not expressly decide the issue of whether second-degree sexual assault is a lesser-included offense of rape, and, in any event, Martinez involved a different section of the rape statute dealing with the victim’s age. | [
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M. MICHAEL KINARD, Judge.
| í Deltic Timber Corporation appeals from the circuit court’s order granting summary judgment in favor of the appel-lees in their claim to an interest in minerals located in Conway County. Because we conclude that summary judgment was not appropriate, we reverse and remand this case to the circuit court.
In December 1983, David L. Baker and Carolyn M. Baker executed a warranty deed conveying the surface and an undivided five-eighths interest in the oil, gas, and minerals of approximately 500 acres of real property located in Conway County to William P. Batson and Garna Sue Batson (Baker-Batson deed). The Baker-Batson deed reserved in the Bakers a three-eighths interest in the mineral rights to the land for a period of twenty years, after | ¡which that interest “shall revert to grantees herein.” The deed was recorded on December 29, 1983, in Conway County.
In April 1984, the Batsons conveyed the 500 acres to Deltic Farm & Timber Company by warranty deed (Batson-Deltic deed). In the granting clause, the Batson-Deltic deed gives the legal description for the approximately 500 acres, followed by the language: “Excepting all prior, valid reservations and/or conveyances of record of oil, gas, and other minerals in and under the subject land.” The effect, if any, of this language is the issue in this appeal; we are asked to determine whether the Bat-son-Deltic deed conveyed all of the Bat-sons’ interest in the subject property or excepted the three-eighths mineral interest, which could then be conveyed to ap-pellees. Appellees, daughters of the Bat-sons and their husbands, contend that they own the three-eighths interest in the minerals by virtue of a warranty mineral deed dated October 30, 1984, in which the Bat-sons conveyed (or attempted to convey) to their daughters “unto each an undivided one-third interest, as tenants in common, and unto their heirs and assigns forever, our interest and all of our undivided 3/8 interest which shall revert to us in the year 2003, in and to all oil, gas and other minerals lying in, on or under” the property at issue. In this mineral deed, the Batsons “covenant[ed] with said Grantees that they will forever warrant and defend the title to said land against all lawful claims whatever.”
Appellant contends that it owns all of the 500 acres, including the three-eighths mineral interest at issue, by virtue of the Batson-Deltic deed. Appellant reasons that the mineral deed from the Batsons to appellees was ineffective because the Bat-sons had already conveyed the three-eighths interest in the oil, gas, and other minerals to appellant in the |aBatson-Deltic deed, subject only to the twenty-year term previously reserved by the Bakers in the Baker-Batson deed.
Procedural history
Appellees filed a complaint in Conway County Circuit Court on August 7, 2008, seeking a declaratory judgment declaring them the owners of the three-eighths mineral interest at issue in this appeal. Appellant answered, joining the issues, and prayed for an order finding them to be the owners of the three-eighths mineral interest. Appellees filed a motion for summary judgment, and appellant filed a cross-motion for summary judgment. In an order filed March 4, 2009, the circuit court granted appellees’ motion for summary judgment, which held that appellees were the owners of the three-eighths mineral interest at issue. Two days earlier, on March 2, 2009, appellant had filed a motion for reconsideration, additional findings of fact and conclusions of law, and a new trial. A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. Ark. R. Civ. P. 52(b)(1), 59(b) (2009). Therefore, appellant’s motions for a new trial and for reconsideration are treated as though they were filed on March 5, 2009, and they were deemed denied thirty days later. See Upton v. Estate of Upton, 308 Ark. 677, 828 S.W.2d 827 (1992). Therefore, appellant’s notice of appeal filed April 29, 2009, was timely.
_|¿Standard of review
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Watkins v. Southern Farm Bureau Cas. Ins. Co., 2009 Ark. App. 693, 370 S.W.3d 848. On appellate review, we must determine whether summary judgment was proper based on whether the evidence presented by the moving party left a material fact unanswered. Id. Here, the parties filed cross-motions for summary judgment, which would tend to indicate that they agreed there were no issues of material fact in dispute. When, on cross-motions for summary judgment, the parties proceed under the same legal theory and the same material facts, summary judgment is appropriate. See Cranfill v. Union Planters Bank, N.A., 86 Ark.App. 1, 158 S.W.3d 703 (2004). In such a case, the appellate court simply determines whether the ap-pellee was entitled to judgment as a matter of law. National Park Med. Ctr., Inc. v. Arkansas Dep’t of Human Servs., 322 Ark. 595, 599, 911 S.W.2d 250, 253 (1995) (citing City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994)). Here, it is impossible to say that either party is entitled to judgment as a matter of law because the operative language in the Bat-son-Deltic deed is ambiguous. As explained below, further factual development is necessary, and summary judgment was thus premature.
Arguments and discussion
Appellant contends that (1) the three-eighths mineral interest was divided into a twenty-year term interest and a reversion-ary interest; (2) in reviewing the language of the Batson-Deltic deed, it cannot be reasonably concluded that a present rever-sionary right in |smineral interests was being reserved or excepted; (3) if the challenged language in the Batson-Deltic deed was intended as a reservation or exception of a reversionary right of mineral interests, the reservation or exception fails for lack of certainty; and (4) the trial court’s reliance on Bodcaw Lumber Co. v. Goode, 160 Ark. 48, 254 S.W. 345 (1923), is inappo-site. First, we agree with appellant that Bodcaw is not particularly helpful in this case. While the holding of our supreme court in that case was that mineral rights are subject to separation from the surface rights so as to be the subject of a separate sale, the circuit court cites Bodcaw for its statement that, where a reservation or exception clause is found in the granting clause of a deed, it is to be “read in connection with the grant as a limitation thereon, rather than as being in conflict with it.” While this is applicable insofar as it goes, the real issue in this case is the effect, if any, of the exception clause in the Batson-Deltic deed. Bodcaw does not provide guidance on this point.
Appellant contends that the Baker-Batson deed created a three-eighths mineral interest that was divided into a twenty-year term interest and a reversion-ary interest. Appellant is correct that the Baker-Batson deed reserved three-eighths of the property’s mineral interest in the Bakers for a period of twenty years. A reservation is a clause in a deed whereby the grantor reserves some new thing to himself, issuing out of the thing granted which was not in esse before. Cottrell v. Beard, 69 Ark.App. 87, 9 S.W.3d 568 (2000). Here, that “new thing” was a twenty-year term interest in three-eighths of the minerals in the subject |fiproperty. As our supreme court recognized in Bod-caw, supra, mineral rights are subject to separation from the surface rights so as to be the subject of separate sale. 160 Ark. at 59, 254 S.W. at 348. The twenty-year reservation held by the Bakers was a term interest, after which time the three-eighths mineral interest would go to the grantees (the Batsons) under the provisions of the warranty deed.
We cannot agree, however, that the Batsons’ three-eighths mineral interest was a reversionary interest. Wilson v. Pharris, 203 Ark. 614, 158 S.W.2d 274 (1941), discusses the distinction between a reversion and a remainder:
A remainder is an estate limited to take effect in possession immediately after the expiration of a prior estate created at the same time and by the same instrument.
A “[r]eversion” is defined ... [a]s the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him.... Unlike a remainder, which must be created by deed or devise, a reversion arises only by operation of law.
(Emphasis added; citations omitted.) Thus, despite the Baker-Batson deed’s statement that the three-eighths interest would “revert” to the grantees (the Bat-sons) after twenty years, the Batsons’ interest in the three-eighths was in fact a remainder and would belong to the grantees (the Batsons) in fee thereafter. This remainder interest was not a contingent remainder, as appellees contend, because there was no contingency upon which the remainder was premised. A remainder that is dependent upon a contingency that may or may not arise or [7that is granted to a person not in existence and who may not come into existence is contingent. Rushing v. Mann, 322 Ark. 528, 910 S.W.2d 672 (1995). After the passage of twenty years, the Batsons’ remainder interest in the three-eighths mineral rights would no longer be subject to the Bakers’ possessory interest. There was no condition, and therefore the remainder was vested in the remaindermen, ie., the grantees. Upon execution of the Baker-Batson deed, the Bakers continued to own a possessory interest in three-eighths of the oil, gas, and other minerals in the 500 acres of land, but only for a term of twenty years; the Batsons owned the surface, five-eighths of the mineral interests in the property, and a vested remainder consisting of three-eighths of the mineral interests, which would become possessory in 2008. A vested remainder can be transferred by deed, by will, or by inheritance, even though the right of possession may not accrue until some time in the future. Dickerson v. Union Nat’l Bank of Little Rock, 268 Ark. 292, 595 S.W.2d 677 (1980).
Interpretation of the Batson-Deltic deed
Now that we have defined the respective interests transferred by the Baker-Batson deed, we turn to the Bat-son-Deltic deed to determine what interest the Batsons conveyed to appellant by virtue of the warranty deed dated April 24, 1984. When interpreting a deed, the court gives primary consideration to the intent of the grantor. Bishop v. City of Fayetteville, 81 Ark.App. 1, 97 S.W.3d 913 (2003). When the court is called upon to construe a deed, it will examine the deed from its four corners for the purpose of ascertaining that intent from the language employed. Id. The court will not resort to rules of construction when a deed is clear and contains no ambiguities, but only when the language of the deed is ambiguous, | ^uncertain, or doubtful. Id. When a deed is ambiguous, the court must put itself as nearly as possible in the position of the parties to the deed, particularly the grant- or, and interpret the language in the light of attendant circumstances. Id.
The initial determination of the existence of an ambiguity rests with the court, and if ambiguity exists, then parol evidence is admissible and the meaning of the term becomes a question for the fact-finder. C. & A. Constr. Co., Inc. v. Benning Constr. Co., 256 Ark. 621, 622, 509 S.W.2d 302, 303 (1974). Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Magic Touch Corp. v. Hicks, 99 Ark.App. 334, 260 S.W.3d 322 (2007). We hold that the Batson-Deltic deed is ambiguous. The Batsons clearly intended to retain some interest, as there is no other reason to include an “excepting” clause, but what they wanted to retain is unclear from the face of the deed. If one follows the “excepting” clause to its ultimate conclusion, the deed excepted the five-eighths mineral interest, the three-eighths mineral interest, and even the surface because all were “prior, valid conveyances.” By not distinguishing between the five-eighths mineral interest and the three-eighths mineral interest, the deed leaves us with serious doubt about what exception is created. Once again the use of “and/or” serves to confuse, not clarify the task of construing the document at hand. See Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 958 (1976) (“The phrase ‘and/or’ has brought more confusion than clarity to the task of construction of statutes, contracts and pleadings.”); Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984) (calling |9“and/or” an imprecise term and noting that it had previously been labeled “a linguistic abomination”).
We disagree with appellant’s contention that the deed dearly excepts only the twenty-year reservation held by the Bakers; we also disagree with appellees’ contention that “[i]f the exception in the Bat-son-Deltie deed was sufficiently clear to include the 20 year term interest, it must also include the reversionary interest springing from the same reservation.” We acknowledge appellant’s argument that the clause at issue in the Batson-Deltie deed fails for lack of certainty. We fundamentally disagree with appellant, however, that the “excepting” clause should simply fail based on its ambiguity. Nor do we agree with appellees that the general exception language in the deed is sufficiently clear to include the remainder interest created by the Baker-Batson deed.
Summary judgment was premature in this case because there is clearly a factual dispute as to the intention of the parties. Because we find that the “excepting” clause in the Batson-Deltie deed is ambiguous, the fact-finder can consider extrinsic proof of intent in construing the deed and the court may rely on the rules of construction previously set forth by our supreme court. The determination of the intent of a grantor is largely a factual one. Winningham v. Harris, 64 Ark.App. 239, 243, 981 S.W.2d 540, 542 (1998). When issuing its order, the trial court had before it the warranty mineral deed from the Batsons granting their three children “our interest and all our undivided 3/8 interest which shall revert to us in the year 2003, in and to all oil, gas and other minerals lying in, on or under the following lands in Conway County, Arkansas.” This presented some evidence, several months ■after the Batson-Deltie deed was executed, that the Batsons believed they owned the three-eighths mineral interest that appellant now claims.
We note that, in arriving at the intention of the parties, the courts may consider and accord considerable weight to the construction of an ambiguous contract or deed by the parties themselves, evidenced by subsequent statements, acts, and conduct. Wynn v. Sklar & Phillips Oil Co., 254 Ark. 332, 341, 493 S.W.2d 439, 445 (1973). Courts may also acquaint themselves with and consider circumstances existing at the time of the execution of a contract and the situation of the parties who made it. Id. These are precisely the kinds of facts that need further development upon remand because the in tention of the parties is not apparent without the introduction of extrinsic evidence. Further, as a rule of last resort, an ambiguous deed is construed most strongly against the party who prepared it, see Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974), or against the grantor. Goodwin v. Lofton, 10 Ark.App. 205, 662 S.W.2d 215 (1984). The circuit court had no evidence before it to determine whether the grantors or the grantee prepared the deed in question, but the identity of the grantors is evident. Whether the circuit court should get to this rule of construction will be Independent on the parol or extrinsic evidence introduced by the parties in an effort to determine the intention of the grantors and grantee.
We reverse the circuit court’s order granting summary judgment and remand the case for further proceedings consistent with this opinion.
Reversed and remanded.
GLADWIN and GLOVER, JJ„ agree.
. Griffith Land Services, Inc., is named a defendant in this case, but it did not file a notice of appeal.
. Our supreme court has acknowledged that while the terms "exception” and "reservation” have distinct meanings, because they "tend to be used interchangeably they are not treated as conclusive as to the nature of the provision, but must yield to manifest intent.” Nature Conservancy v. Kolb, 313 Ark. 110, 120, 853 S.W.2d 864, 870 (1993).
. The Duhig rule, which our supreme court adopted in Peterson v. Simpson, 286 Ark. 177, 690 S.W.2d 720 (1985), does not allow for subjective considerations in interpreting deeds. However, the Duhig rule does not apply in this case because that rule only applies to disputes between non-original grantors and grantees. Here, the original grantee (Deltic) and children of the original grantors (the Newslands and Dillard) are disputing the interpretation of the Batson-Deltie deed. See Peterson, 286 Ark. at 182, 690 S.W.2d at 720 ("Our decision in this case does not change the general rule that subjective considerations may be taken into account in reformation cases involving the original grantor and his immediate grantee.”); Mason v. Buckman, 2010 Ark.App. 256, 2010 WL 962054 (applying Duhig rule in construction of a warranty deed transaction involving "non-original grantor-grantees”). | [
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RITA W. GRUBER, Judge.
_JjBoth parties have appealed a decision of the Arkansas Workers’ Compensation Commission denying claimant’s request for permanent total-disability benefits and awarding claimant benefits for additional medical treatment. Cathy Evans sustained a compensable right wrist injury, for which she received temporary total-disability benefits and a 30% impairment rating. Her employer, Bemis Company, Inc., accepted and paid compensation for the impairment rating but disputed Ms. Evans’s entitlement to permanent total disability benefits and benefits for additional medical treatment. On appeal, Ms. Evans contends that the Commission erred in denying her request for permanent total disability benefits, and Bemis cross-appeals, contending that the Commission erred in awarding additional medical benefits. We hold that substantial evidence supports the Commission’s findings and affirm.
[2On December 14, 2004, Ms. Evans, who was forty-one years old at the time of the injury, fractured her right wrist while operating a baler for Bemis. She remained in a cast for thirteen weeks but returned to light-duty work two weeks after the injury, performing work with her left hand. Due to continuing complaints of pain, stiffness, and swelling, Ms. Evans was evaluated for treatment by Dr. Michael Moore, an orthopaedic surgeon specializing in hands. Ms. Evans continued to work at Bemis until Dr. Moore performed surgery on January 20, 2006. After her cast was removed, she suffered from a constant burning, stinging sensation in her right hand. She was diagnosed with reflex sympathetic dystrophy (RSD), given pain medication, and treated with nerve blocks by Dr. Kenneth Rosenzweig at Arkansas Specialty Pain Management Center. Dr. Reginald Rutherford, one of Dr. Moore’s partners, continued to manage the treatment for Ms. Evans’s RSD. Ms. Evans developed depression and, in May 2006, Dr. Rutherford prescribed Lexapro in addition to the pain medication Ms. Evans was taking for the RSD.
A bone scan taken on June 2, 2006, indicated that the RSD had improved. Dr. Rutherford ordered a Functional Capacity Evaluation (FCE), which was performed by Charles Davidson on June 28, 2006. The results of the FCE indicated unreliable effort. On the basis of his evaluation, Mr. Davidson determined that Ms. Evans could work in a light-duty capacity and that she was only one pound away from working at the medium-level capacity.
On August 10, 2006, Dr. Moore opined that Ms. Evans would not benefit from | .¡further surgical treatment and that she had reached maximum medical improvement; he assigned a 30% impairment of the right wrist and hand on August 22, 2006. Ms. Evans then requested and was granted a one-time change of physician to her family physician, Dr. Jeffrey Reinhart. Dr. Reinhart referred Ms. Evans to Dr. Ghulam Khaleel, a neurologist, for evaluation and management of her RSD. He opined that her condition had “poor prognosis” and that she would not be able to use her right hand to earn a meaningful livelihood. He strongly recommended her for approval of complete disability. Dr. Reinhart also referred Ms. Evans to Dr. Stephen Broughton, a psychiatrist, who recommended medical management. Bemis did not pay for Ms. Evans’s visits to either Dr. Khaleel or Dr. Broughton.
At a hearing before an administrative law judge (ALJ) on April 24, 2008, the parties disputed Ms. Evans’s entitlement to permanent total-disability benefits and to continued medical benefits. The ALJ found that Ms. Evans failed to prove by a preponderance of the evidence that she was entitled to permanent total disability benefits because she failed to prove that she was “unable to earn any meaningful wages in any capacity.” While the ALJ agreed that Ms. Evans had significant impairment to her right wrist and hand, the ALJ deemed her impairment to be limited to her right hand and found her capabilities far exceeded her disabilities. The ALJ found it significant that Ms. Evans continued to work for Bemis for over a year after the injury, using only her left hand. The ALJ also referred to Dr. Moore’s reports after the surgery stating that Ms. Evans could work in a light-duty capacity and to Mr. Davidson’s FCE concluding that Ms. Evans was capable of performing light-duty work. The |4ALJ reasoned that Ms. Evans was young; had no medical problems or impairments in any other area; was able to speak, hear, and see without impairment; could read; and had an extensive work history, including numerous managerial jobs. The ALJ also recognized that Ms. Evans testified that she had made no effort to look for work that she might be able to do, even on a part-time basis. Finally, the ALJ noted that Ms. Evans used her hands extensively when testifying. The ALJ stated that she was more persuaded by the opinions of Dr. Moore and Mr. Davidson as to Ms. Evans’s ability to work than she was the opinions of Dr. Reinhart and Dr. Khaleel that Ms. Evans was unable to work in any capacity.
The ALJ did, however, award additional medical benefits to Ms. Evans. The ALJ stated that all of Ms. Evans’s treating doctors agreed that she continued to suffer from RSD in her right wrist and hand and that she needed ongoing medical treatment in the form of pain management. In addition, Dr. Reinhart and Dr. Broughton recommended further treatment for the psychological disorders associated with her RSD in the form of medications. The ALJ noted that this treatment was consistent with the opinion of Dr. Rutherford that Ms. Evans was exhibiting symptoms of depression. The ALJ found that the preponderance of the medical evidence demonstrated that Ms. Evans’s ongoing treatment with Dr. Reinhart, Dr. Khaleel, and Dr. Broughton was reasonably necessary and related to her compensable injury. The Commission adopted the findings and conclusions of the ALJ and affirmed her decision.
Typically, on appeal to this court, we review only the decision of the Commission, not that of the ALJ. Daniels v. Affiliated Foods Sw., 70 Ark.App. 319, 17 S.W.3d 817 (2000). However, here the Commission affirmed and adopted the ALJ’s opinion as its own, which it is permitted to do under Arkansas law. See Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark.App. 338, 107 S.W.3d 876 (2003). Thus, for purposes of our review, we consider both the ALJ’s order and the Commission’s order.
In appeals involving claims for workers’ compensation, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence, which is evidence a reasonable person might accept as adequate to support a conclusion. See Kimbell v. Ass’n of Rehab Indus. & Bus. Companion Prop. & Cas., 366 Ark. 297, 235 S.W.3d 499 (2006). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the same conclusions reached by the Commission. Cedar Chem. Co. v. Knight, 99 Ark.App. 162, 258 S.W.3d 394 (2007). Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Patterson v. Ark. Dep’t of Health, 343 Ark. 255, 33 S.W.3d 151 (2000).
I. Appeal
On appeal, Ms. Evans contends that the Commission’s decision to deny her permanent total-disability benefits is not supported by substantial evidence and must be reversed. Permanent total disability means “inability, because of compensable injury ... to earn any meaningful wages in the same or other employment.” Ark.Code Ann. § 11-9-519(e)(l)Ji(Repl.2002). The burden of proving this inability to the Commission was on Ms. Evans. Ark.Code Ann. § 11-9 — 519(e)(2).
Ms. Evans’s testimony demonstrated an extensive and varied work history, including significant restaurant and office management experience, sales experience, and billing experience. Further, Ms. Evans worked at Bemis for a year after she had been injured, using her left hand only. Dr. Moore, Ms. Evans’s treating physician, stated in several letters written after her surgery that Ms. Evans could work in a light-duty capacity. Mr. Davidson, who performed a functional capacity evaluation of Ms. Evans after her surgery, also concluded that Ms. Evans was capable of performing light-duty work. While Ms. Evans presented the opinions of Dr. Reinhart and Dr. Khaleel that she was unable to work, the ALJ stated that she was more persuaded by the opinions of Dr. Moore and Mr. Davidson as to Ms. Evans’s ability to work than she was the opinions of Dr. Reinhart and Dr. Khaleel that Ms. Evans was unable to work in any capacity. We hold that this constitutes substantial evidence to support the Commission’s denial of permanent total-disability benefits.
II. Cross-Appeal
On cross-appeal, Bemis contends that the Commission’s determination that Ms. Evans is entitled to additional medical treatment is not supported by substantial evidence. Arkansas Code Annotated section ll-9-508(a) (Supp.2009) requires an employer to pay for medical treatment that is “reasonably necessary in connection with the injury received by the employee.” The claimant bears the burden of proving that she is entitled to additional |7medical treatment. Dalton v. Allen Eng’g Co., 66 Ark.App. 201, 206, 989 S.W.2d 543, 546 (1999). Bemis argues that neither Dr. Khaleel nor Dr. Broughton made additional treatment recommendations and that Dr. Reinhart simply provided periodic medication without any goal or plan. Thus, Bemis argues, any additional treatment is speculative rather than reasonable and necessary. Bemis contends that the Commission cannot base an award on such speculation and conjecture.
The ALJ’s award, adopted by the Commission, directed Bemis to provide “continuing reasonable and necessary medical treatment” for Ms. Evans. This award was based on the ALJ’s review of Dr. Reinhart’s opinion that Ms. Evans needed ongoing medical treatment in the form of pain management and of the opinions of Dr. Broughton and Dr. Reinhart that she continue treatment of the psychological disorders associated with RSD in the form of medications. We note that, although Dr. Moore opined in a letter dated August 10, 2006, that Ms. Evans would not benefit from further surgical treatment, he said that he would defer to Dr. Rutherford’s opinion as to whether she required further treatment for the RSD. In that same letter, Dr. Moore noted that Dr. Rutherford had recommended that Ms. Evans continue her current medications. In this case, the Commission awarded ongoing treatment in the form of medication for pain management and for treatment of the psychological disorders associated with RSD. Bemis was also directed to pay “continuing reasonable and necessary medical treatment” for Ms. Evans. Therefore, we hold that the decision of the Commission is supported by substantial evidence and we affirm.
1 RAffirmed on appeal and on cross-appeal.
GLOVER and BROWN, JJ„ agree. | [
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LARRY D. VAUGHT, Chief Judge.
| -|Appellant Troyce Barnett filed a complaint in the Circuit Court of Stone County pursuant to the Teacher Fair Dismissal Act of 1983 (Repl.2007 and Supp.2009), against appellee Mountain View School District challenging his termination by the District’s Board of Directors. After the parties filed cross-motions for summary judgment, the trial court entered an order denying Barnett’s motion and granting the District’s. Barnett appeals the dismissal of his claim, arguing that the unambiguous terms of his teacher’s contract governed and that the trial court erred in considering parol evidence in construing that contract. We agree and reverse and remand.
The facts in this case are largely undisputed. In 1986, Barnett became licensed in Arkansas to teach secondary career opportunities and agriculture science. When Barnett’s | Reaching job was eliminated due to consolidation in 2006, he interviewed with the superintendent of the District for a new position teaching environmental and earth science, for which he was not licensed. Barnett said that during this interview, he and the superintendent discussed the need to become licensed to teach these science classes, and Barnett acknowledged that he understood he would have to take and pass licensure exams.
On July 27, 2006, the District’s Board of Directors voted to hire Barnett as a “Middle School/High School Science Teacher.” However, because Barnett was not licensed in Arkansas to teach science, the District was required to seek a waiver from the Arkansas Department of Education (ADE) so that he could teach without a license. Along with the request for the waiver, the District submitted to the ADE a document entitled, “Arkansas Department of Education, Physical/Earth Science, Grades 7-12, Additional Licensure Plan (area 169),” that was executed by Barnett and the District on August 9, 2006. The Additional Licensure Plan (ALP) provided that Barnett would teach environmental and earth science for the District for the 2006-07 school year; however, it also required that Barnett take examinations to become licensed in these fields. The ALP required that Barnett would have no more than three calendar years to meet full licensure requirements. Subsequently, on September 6, 2006, Barnett and the District entered into a document entitled, “Teacher’s Contract,” employing Barnett for the 2006-07 school year as a “teacher.” Thereafter, on April 11, 2007, the ADE granted the District a waiver, permitting Barnett to teach out of his li-censure area.
Barnett taught science for the District throughout the 2006-07 school year. Dur ing |3that year, Barnett and his principal visited about Barnett taking the licensure tests. Toward the end of the school year, Barnett took one of the tests. He learned over the summer break that he did not pass. Barnett returned to teach science for the District for the 2007-08 school year; however, the District neither executed an ALP with Barnett, nor did it apply for or receive a waiver from ADE for Barnett for that year. During that year Barnett advised his principal that he failed the licensure test. According to Barnett, his principal told him, “don’t sweat it” and that the District “never get[s] rid of good teachers.” Barnett taught science the entire 2007-08 school year. He took the test again in the summer of 2008. He did not pass. According to Barnett, he informed his principal about his failure and was encouraged to take the test again.
On May 28, 2008, the District and Barnett entered into another teacher’s contract whereby Barnett was hired for the 2008-09 school year as a “high school teacher.” At the onset of the 2008-09 school year, Barnett’s principal and a new superintendent approached Barnett and informed him that he was not making progress toward licensure. They further advised that he had to pass the licensure tests. As a result of this meeting, on August 11, 2008, the District and Barnett entered into a second ALP that required Barnett to take licensure exams monthly until he passed. This ALP also reflected that Barnett planned to take two tests on September 18, 2008.
For the 2008-09 school year, the District sought to obtain another waiver from the ADE on behalf of Barnett, and it submitted the August 2008 ALP with its request. On |4September 11, 2008, the District was notified by the ADE that the waiver was denied because Barnett failed to demonstrate adequate yearly progress toward li-censure.
Without the ADE waiver, Barnett could not teach for the District outside the field for which he was licensed. Barnett was transferred to another school within the District teaching special education. On October 21, 2008, the new superintendent asked Barnett if he was interested in teaching as a substitute. Barnett rejected this offer, relying upon his teacher’s contract. Within a couple of hours, the new superintendent hand delivered a letter to Barnett, immediately suspending him and providing official notice of the District’s termination recommendation.
A termination hearing was held in December 2008, and the District’s Board of Directors voted unanimously to terminate Barnett based on the following grounds: he failed to complete the requirements for licensure and taught part of the 2008-09 school year without having the required licensure, he was not licensed to teach the area for which he was contracted, he failed to notify the superintendent that he was teaching without correct licensure, and he caused the District to be out of compliance with state regulations because a waiver had been denied for him to teach for the 2008-09 school year.
Following his termination, Barnett filed a complaint in the Circuit Court of Stone County, alleging that his termination violated the Teacher Fair Dismissal Act and seeking reinstatement, back pay, benefits, costs, and attorney’s fees. The parties filed cross-motions for summary judgment. In Barnett’s motion, he acknowledged that the District wanted him to teach in a field in which he was not licensed and that he took licensure tests toward that end. |fiHe further acknowledged that the District ap plied for a waiver on his behalf so that he would be permitted to teach classes he was not licensed to teach. However, Barnett’s motion contended that the facts were undisputed that the unambiguous terms of his teacher’s contract required him to be a “high school teacher,” and that at all times he met that requirement because he was licensed to teach in Arkansas. He contended that the science license was never a condition of his employment and that no such condition was expressed in his contract.
The District’s motion argued that the teacher’s contract was ambiguous because it merely stated that Barnett was hired as a “high school teacher,” and the term “teacher” was not defined in the contract. It argued that parol evidence should be considered in order to determine the intent of the parties when they entered into the teacher’s contract. It pointed out that all parties agreed that Barnett was hired to teach secondary science, as evidenced by the Board of Director minutes, but that he was not licensed to teach in that area. The District added that Barnett executed two ALPs wherein he promised to take and pass licensure tests for science. Based on the parol evidence, the District argued, it was undisputed that Barnett was hired to teach science and when he failed to become licensed to teach in that field, he breached the contract.
The trial court found that Barnett was a teacher under the 2008-09 teacher’s contract but also that “teacher” was not defined by the contract. As such, the trial court considered parol evidence and the totality of the circumstances to interpret the contract and concluded that the parties both assumed that Barnett was hired as a science teacher. Accordingly, the court denied Barnett’s motion for summary judgment and granted the District’s. The trial | (¡court also dismissed Barnett’s breach-of-contract claim that was added to his complaint at the summary-judgment hearing. Barnett timely appealed.
Barnett lists multiple points and sub-points on appeal. He first argues that the teacher’s contract in this case governs and that it was not ambiguous because it required that he be a “high school teacher,” and he argues that he was an Arkansas-licensed teacher. Citing Griggs v. School Dist. No. 70, Randolph County, he contends that the trial court erred in relying upon parol evidence to construe an unambiguous term of the contract. 87 Ark. 93, 96-97, 112 S.W. 215, 216 (1908) (holding that where the teacher’s contract was unambiguous, it was reversible error to consider parol evidence that tended to vary or conflict with the written contract). Second, Barnett claims that even if parol evidence was admissible, most of that evidence was irrelevant because it was superseded by subsequent contracts. Third, he argues that because the District drafted the teacher’s contract, it should be construed against the District. Next, he argues that any problems with his license were caused by the District. And finally, he claims that the District breached the teacher’s contract when it assigned him to teach in an area outside of his licensure and then fired him for not being licensed in that field.
The standard for review of a summary judgment is whether the eviden-tiary 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. McCaskill v. Fort Smith Pub. Sch. Dist., 324 Ark. 488, 490, 921 S.W.2d 945, 946 (1996). We view all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id., 921 S.W.2d at 946. However, when the |7movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet that proof with proof showing a genuine issue for trial. Id., 921 S.W.2d at 946. In summary-judgment matters, where there is no dispute as to any material fact or where the parties agree on the facts, appellate courts simply determine whether the ap-pellee was entitled to judgment as a matter of law. Dachs v. Hendrix, 103 Ark. App. 184, 188, 287 S.W.3d 627, 630 (2008).
Traditional contract principles apply to teachers’ employment contracts. Turnbough v. Mammoth Spring Sch., 74 Ark. App. 107, 112, 45 S.W.3d 430, 434 (2001). A contract is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. Turnbough, 74 Ark. App. at 112, 45 S.W.3d at 434. When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. Id., 45 S.W.3d at 434.
The parol-evidence rule is a rule of substantive law in which all antecedent proposals and negotiations are merged into the written contract and cannot be added to or varied by parol evidence. Hagans v. Haines, 64 Ark. App. 158, 163, 984 S.W.2d 41, 44 (1998). Where a contract is plain, unambiguous, and complete in its terms, parol 'evidence is not admissible to contradict or add to the written terms. Id., 984 S.W.2d at 44. However, parol evidence may be admitted to prove an independent, collateral fact about which the written contract was silent. Ultracuts Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 232, 33 S.W.3d 128, 134 (2000).
|sWe go no further to resolve this case than Barnett’s first argument on appeal. We agree with his contention that his 2008-09 teacher’s contract governs and that it was not ambiguous. All that the contract required was that Barnett be a “high school teacher.” Barnett met that description. He was licensed by the State of Arkansas to teach secondary career opportunities and agricultural science. The Teacher Fair Dismissal Act, under which this case was filed, defines “teacher” as “any person, exclusive of the superintendent or assistant superintendent, employed in an Arkansas public school district who is required to hold a teaching certificate from the Department of Education as a condition of employment.” Ark.Code Ann. § 6-17-1502(a)(l) (Repl.2007). It is undisputed that Barnett met that definition too.
There is no question that Barnett was not licensed in Arkansas to teach secondary environmental and earth science. However, this was not a stated condition in his contract, and the District, as the drafter of the contract, could have imposed such a condition. Turney v. Alread Public Schools, 282 Ark. 84, 666 S.W.2d 687 (1984) (upholding dismissal of a teacher who failed to satisfy the stated condition of his teacher’s contract to obtain “12 hours by August 1982 and complete all your requirements and be fully (not provisionally) certified by the end of the first semester of the 1982-1983 year,” where school board was seeking to improve its accreditation status of its school).
The District’s argument is that the trial court properly considered parol evidence — the parties’ pre-contract conversations, the board minutes, the previous contracts executed between the parties, the ALPs executed between the parties— along with the teacher’s |3contract. In making this argument, the District assumes ambiguity in the teacher’s contract, but at no time does it make any argument explaining how or why the term “high school teacher” is ambiguous. Instead, the District argues that because the term is not defined in the contract, it is ambiguous. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Magic Touch Corp. v. Hicks, 99 Ark. App. 334, 339, 260 S.W.3d 322, 326 (2007). The fact that a term is not defined does not automatically render a contract ambiguous. Magic Touch Corp., 99 Ark. App. at 339, 260 S.W.3d at 326.
In this case, the only way one can conclude that the term “high school teacher” found in the 2008-09 teacher’s contract is ambiguous is to look outside of the contract to the parol evidence. Such an approach is improper in this case.
The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention, if it can be done consistently with legal principles. The parties should always be bound for what they intended to be bound for and no more. The intention of the parties means, however, the intention as shown by the contract, and not what they may have had in mind but did not express. The law presumes that the parties understood the import of their contract and that they had the intention which the terms of the contract manifest.
Connelly v. Beauchamp, 178 Ark. 1036, 1042, 13 S.W.2d 28, 30 (1929).
As such, we must first look at the contract terms to see if they are unambiguous. Here, the term “high school teacher” is unambiguous. Barnett was a “high school teacher” because he was an Arkansas-licensed secondary-school teacher. As such, parol evidence is not admissible in this ease. Griggs, 87 Ark. at 96-97, 112 S.W. at 216. Therefore, we hold that it was error as a matter of law for the trial court to conclude that the teacher’s contract was 11(lambiguous and to consider parol evidence in construing the contract. Accordingly, we reverse the trial court’s entry of summary judgment in favor of the District and remand for further proceedings consistent with this opinion. In view of this holding, we need not address Barnett’s remaining arguments.
Reversed and remanded.
GRUBER and GLOVER, JJ., agree.
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ROBERT J. GLADWIN, Judge.
| TAppellant Charles Woodson appeals his September 17, 2008 conviction by a Randolph County jury on charges of commercial burglary, arson of property worth at least $100,000, and misdemeanor theft of property. He was sentenced to a total of twenty years’ imprisonment in the Arkansas Department of Correction. Appellant’s sole argument on appeal is that the circuit court erred in denying his motion for directed verdict. We affirm.
Facts
On November 8, 2007, law-enforcement officers initiated an investigation regarding a fire that had occurred the previous evening at 166 Café. The investigating officers determined that a forced entry into the building was made through the removal of an air-conditioning unit and that the point of origin of the fire was inside the restaurant in the area between the register and a desk behind the counter. Officers also discovered spots adjacent 12to the point of origin where the floor material had burned more significantly than other parts of the floor, possibly indicating the use of accelerants. A one-gallon Crown White fuel can was found near the building, and debris from the burned area tested positive for ethanol and a medium-based alkene product, such as candle oil or some type of lighter fluid. A small pry-bar was found near the cash-register, and a saw was discovered on top of the air-conditioning unit. The tray from the cash-register drawer was also missing and was never recovered.
Officers received information indicating that Ms. Patsy Adams and Ms. Sandra (a/k/a Sissy) Wilson had been observed at the location of the 166 Café around midnight on the night of the fire. Officers interviewed Ms. Adams and Ms. Wilson, which prompted them to speak with Ms. Lucinda (a/k/a Cindy) Burleson, Ms. Christina Luther, and appellant. All four women initially denied any involvement or knowledge of the incident, but officers eventually learned that the saw discovered at 166 Café belonged to Ms. Adams. Ms. Adams subsequently admitted her involvement and agreed to cooperate in the investigation.
Additionally, Ms. Wilson — appellant’s cousin who at the time was on parole — also agreed to assist in the investigation by allowing officers to place a digital-recording device in her vehicle to record conversations between appellant and herself. She drove to appellant’s residence and picked him up, while at the same time Special Agent Wendel Jines and Deputy Jim Milam were listening to the conversation in their vehicle. Ms. Wilson asked appellant whether he retrieved the Coleman can (meaning the Crown White can), and they discussed items from which appellant wiped fingerprints and buried in the woods.
laMs. Wilson admitted to being with appellant, Ms. Burleson, Ms. Luther, and Ms. Adams on the night of the fire at the home she shared with Ms. Burleson. She explained that, after having dinner and playing darts, she went with Ms. Adams and appellant to Ms. Adams’s house. Ms. Wilson testified that she noticed Ms. Adams drawing something that turned out to be the floor plan of 166 Café — where Ms. Adams had previously worked. Appellant indicated to her that he planned to rob 166 Café. After indicating that she did not want to be involved, Ms. Wilson agreed to go with Ms. Adams and appellant to get cigarettes. Appellant took a hand saw from Ms. Adams’s residence with him on the errand.
Ms. Wilson testified that Ms. Adams drove to 166 Café, during which time she noticed that Ms. Adams and appellant had walkie-talkies. Ms. Adams dropped appellant off at a house just past the Café, and he took the saw and walkie-talkie with him. The two women left, drove to the store, bought cigarettes, and returned to pick up appellant. When they did not see him, they parked a little way up the road from 166 Café. Approximately one hour after dropping him off, appellant contacted them via the walkie-talkie, and as Ms. Adams pulled in near 166 Café, Ms. Wilson noticed officers approaching. The two women alerted appellant via the walkie-talkie and then pulled up to the officer’s vehicle. Ms. Adams explained that her car was overheating and they were getting water. At the conclusion of the conversation, the two women returned to Ms. Adams’s house.
Subsequently, Ms. Wilson and Ms. Adams went back to search for appellant, but returned to Ms. Wilson’s house at approximately 4:00 a.m. after having no success in locating |4him. Upon their arrival, appellant came out the back door, bloody and scratched from having run through the woods, through barbed wire, and into a tree. He indicated that he had “tore up the cash register and stuff up.” Upon Ms. Adams’s urging that something had to be done, appellant stated that “the only thing I can do is torch the place.” Ms. Wilson then drove them to Ms. Adams’s house, where Ms. Adams retrieved the Crown White fuel can and gave it to appellant. Ms. Wilson then drove to 166 Café where appellant left with the fuel can. After the women drove around a few minutes, appellant jumped back into the vehicle. Ms. Wilson took Ms. Adams to her house, and she and appellant returned to hers. The following morning, appellant told Ms. Wilson he had taken about $200 and some jewelry but had stashed it out in the woods.
Ms. Adams gave a similar account of the incident, adding information about appellant taking the saw, pry-bar, and Crown White fuel can from her house. She indicated that when he got out of the vehicle with rubber gloves, the pry-bar, the saw, and a flashlight, there was no question in her mind that he was planning to rob 166 Café. She indicated that she told appellant that he had to take back what he had stolen. Subsequently, appellant indicated to Ms. Adams that he had gotten some money, but not how much, and that he had hidden it in the woods.
It is undisputed that both Ms. Wilson and Ms. Adams were charged in this ease and were accomplices in the incident. Both negotiated deals with the State that spared them from serving any jail time.
|fiMs. Burleson, Ms. Wilson’s roommate, testified that she was with Ms. Wilson, Ms. Adams, and appellant earlier on the night of November 7, 2007, but that she went to bed early. She stated that she was unaware of what had occurred until the following morning when she saw appellant’s injuries and heard his account of the incident. She stated that appellant told her that the robbery was Ms. Adams’s idea. Ms. Burleson also overheard appellant telling Ms. Adams that he had only taken about $200. She also discussed the issue of fingerprints being discovered, and explained that appellant assured her that only Ms. Adams’s fingerprints might be discovered on her saw that he had left at the scene. Ms. Burleson testified that she also witnessed Ms. Wilson burn the map of 166 Café that was in Ms. Adams’s handwriting.
Although she initially lied to police to try to protect Ms. Wilson, Ms. Burleson also agreed to wear a recording device. Apparently the equipment she used was faulty, and officers were unable to obtain sufficient information from her attempt. She was not charged in this incident, even for obstruction of justice related to her initial lies to police; however, she may have received a lighter sentence on a methamphetamine charge in another county because of her cooperation.
Ms. Lúther testified that she saw appellant around 8:00 a.m. on November 8, 2007. He explained to her that the gash between his nose and two black eyes occurred when he was leaving 166 Café and ran under a barbed-wire fence. Appellant admitted that he broke into 166 Café and that he ran from the building after Ms. Wilson alerted him via the walkie-talkie | (¡that the police were approaching. He admitted to Ms. Luther that he stole several hundred dollars and explained that he left a saw that would have Ms. Adams’s fingerprints on it. Ms. Luther acknowledged that she initially lied to law-enforcement officers in an attempt to protect Ms. Wilson. She was not charged in this case and claimed that she was not offered a deal in exchange for testifying.
Additionally, at the jury trial held on September 16-17, 2007, Jean Grissom, owner of the business part of 166 Café, testified that a $121,000 loss resulted from the fire. Irma Jean Taylor, owner of the building that housed 166 Café, testified that a $61,538.92 loss resulted from the fire.
After the State rested, appellant’s counsel moved for a directed verdict on various charges arguing, that the State failed to prove — other than through the testimony of co-defendants — that appellant had the intent to commit a theft while in 166 Café or that anything was actually stolen from that location. The same argument was made -with respect to the charges of arson and theft of property, specifically that no evidence beyond the testimony of the two co-defendants supported the charges. Additionally, with respect to the arson charge, appellant’s counsel argued that the State failed to lay a proper foundation to establish that Ms. Grissom and Ms. Taylor were qualified to testify as to the value of the monetary loss incurred. The circuit court denied the motions.
The defense rested without presenting any witnesses and reasserted the motion for directed verdict on the same grounds. The circuit court again denied the motion. The jury 17returned guilty verdicts on all counts, and appellant was sentenced as previously set forth. The judgment and commitment order was filed on September 17, 2007. Appellant filed a timely notice of appeal on October 14, 2007, and this appeal followed.
I. Denial of Motion for Directed Verdict A. Standard of Review
A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id.
Weighing the evidence and assessing the credibility of the witnesses are matters for the fact-finder. Bush v. State, 90 Ark. App. 373, 206 S.W.3d 268 (2005). The jury is free to believe all or part of any witness’s testimony and resolves questions of conflicting testimony and inconsistent evidence. See Gikonyo v. State, 102 Ark. App. 223, 283 S.W.3d 631 (2008). Reconciling conflicts in the testimony and weighing the evidence are matters within the exclusive province of the jury. See Mitchem v. State, 96 Ark. App. 78, 238 S.W.3d 623 (2006).
B. Discussion
| ^Arkansas Code Annotated section 16-89-lll(e)(l)(A) (Repl.2005) provides that
a conviction or an adjudication of delinquency cannot be had in any ease of felony upon the testimony of an accomplice, including in the juvenile division of circuit court, unless corroborated by other evidence tending to connect the defendant or the juvenile with the commission of the offense.
Additionally, subsection (B) states that the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. It must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with a crime and not toward corroborating the accomplice testimony. Stephenson v. State, 373 Ark. 134, 282 S.W.3d 772 (2008). The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to connect to a substantial degree the accused with the commission of the crime. Id.
The test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Stephenson, supra. The corroborating evidence may be circumstantial so long as it is substantial; evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice’s testimony. Id. The presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant facts in determining the connection of an accomplice with the crime. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996).
| ^Appellant maintains that there was no direct evidence, other than the self-serving circumstantial testimony of the State’s witnesses that support charges that he committed any crime on November 7, 2007. He urges that all of the witnesses for the State were admitted accomplices to the crime. He reminds us that each of them admitted repeatedly lying to law-enforcement officers. He suggests the State’s main witnesses were under the influence of methamphetamine at the time of their involvement in the 166 Café incident. Further, he claims that it is not hard to ascertain that their testimony was “bought” by the authorities in exchange for leniency. As such, he urges that his convictions are not supported by substantial evidence.
We disagree. First, we note that the jury was instructed that both Ms. Wilson and Ms. Adams were accomplices in this case. The testimony of both Ms. Wilson and Ms. Adams clearly implicates appellant in the incident, but there is sufficient corroborating evidence from other witnesses to support each of the respective charges.
(1) Commercial Burglary
With respect to the commercial-burglary conviction, Arkansas Code Annotated section 5-39-201(b)(l) (Repl.2006) provides that a person commits commercial burglary if he or she enters or remains unlawfully in a commercial occupiable structure of another person with the purpose of committing in the commercial occu-piable structure any offense punishable by imprisonment. In this case, there was a commercial burglary that occurred, as testified to by Special Agent Jines. He explained that the restaurant had been forcibly entered, and that a hnsaw and pry-bar were found in and around the building. He also testified that the money tray from the cash-register drawer was missing and never found.
Additional testimony that corroborated that of Ms. Wilson and Ms. Adams came from Ms. Burleson, who was not charged as an accomplice in this case. She testified that appellant told her the morning after the robbery that the incident was Ms. Adams’s idea. She also explained that she overheard appellant telling Ms. Adams that he had taken about $200. She testified that she also discussed the issue of fingerprints being discovered on items used in the robbery and that appellant assured her that only Ms. Adams’s fingerprints might be discovered on her saw that he had left at the scene. Ms. Burleson stated that she witnessed Ms. Wilson burn the map of 166 Café that was in Ms. Adams’s handwriting.
Another non-accomplice witness, Ms. Luther, testified that she saw appellant around 8:00 a.m. on November 8, 2007. Ms. Luther testified that appellant explained that the gash between his nose and two black eyes occurred when he was leaving 166 Café and ran under a barbed-wire fence. She stated that appellant admitted to her that he broke into 166 Café and that he ran from the building after Ms. Wilson alerted him via the walkie-talkie that police officers were approaching. He admitted to her that he stole several hundred dollars and explained that he left a saw at the scene that would have Ms. Adams’s fingerprints on it.
|nWhen viewed in the light most favorable to the State, substantial evidence supports appellant’s conviction on the charge of commercial burglary. Accordingly, we affirm on this count.
(2) Arson
With respect to the arson conviction, Arkansas Code Annotated section 5-38 — 301(a)(1)(A) (Supp.2007) provides that a person commits arson if he or she starts a fire or causes an explosion with the purpose of destroying or otherwise damaging an occupiable structure or motor vehicle that is the property of another person. Subsection (b)(6) provides that arson is a Class Y felony if the property sustains damage in an amount of at least $100,000.
The physical evidence discovered by law-enforcement officers, as well as Special Agent Jines, supports the conclusion that 166 Café was destroyed by arson. In addition to the evidence of forcible entry, officers determined that the point of origin of the fire was inside the restaurant, centered in the area between the register and a desk behind the counter. The cash register was heavily damaged by the fire and heat. Officers also discovered spots adjacent to the point of origin where the floor material had burned more significantly than other parts of the floor, possibly indicating the use of accelerants. A one-gallon Crown White gas fuel can was found near the building, and debris from the burned area tested positive for ethanol and a medium-based alkene product, such as candle oil or some type of lighter fluid. Although the testing did not indicate the presence of camp fuel, Special Agent Jines testified |12that it could have completely burned up in the fire and that he found no source of accidental ignition. He specifically testified that based upon his training and experience as an arson investigator, he did not believe that the fire was “in any way” accidental.
Specific evidence as to the value of the monetary loss incurred as a result of the arson was presented at trial. Ms. Grissom, who owned the business part of 166 Café, testified that a $121,000 loss resulted from the fire. Additionally, Ms. Taylor, owner of the building that housed 166 Café, testified that a $61,538.92 loss resulted from the fire. Although the preferred method of establishing value is through expert testimony, see Coley v. State, 302 Ark. 526, 790 S.W.2d 899 (1990), it is also well settled that an owner of property is competent to testify as to the value of his own property. See Sullivan v. State, 32 Ark. App. 124, 798 S.W.2d 110 (1990).
Although the physical evidence and testimony from Special Agent Jines did not specifically connect appellant with the arson, when viewed in conjunction with the accomplice testimony from Ms. Wilson and Ms. Adams and appellant’s own admissions regarding the robbery to Ms. Burleson and Ms. Luther, there was sufficient evidence for the jury to conclude that appellant did in fact commit arson. While this evidence is not as strong as the evidence supporting the burglary and theft convictions, in that appellant denied blame in the transcript of the recorded conversation between Ms. Wilson and himself on February 4, 2008, we also note that he expressed his hope that law-enforcement officers would focus on another suspect who had been involved in several area arson cases. Additionally, appellant | isspecifically stated in that transcribed conversation that he wiped his fingerprints off of the fuel can and buried it in the woods.
(3) Theft of Property
Regarding the misdemeanor-theft-of-property charge, Arkansas Code Annotated section 5 — 36—103(a)(1) (Supp.2007) provides that a person commits theft of property if he or she knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner of the property. Theft of property is a misdemeanor if the value of the property is $500 or less. See Ark.Code Ann. § 5-36-103(b)(4)(A) (Supp.2007).
Special Agent Jines testified that the money tray of the cash-register drawer was missing and never recovered, although he could not specify how much, if any, money had been in the tray at the time it was taken. Appellant was overheard by Ms. Burleson telling Ms. Adams that he only got a couple hundred dollars from 166 Café, and Ms. Luther testified that he specifically told her that he stole several hundred dollars from 166 Café. We hold that sufficient corroborating evidence exists with respect to the theft-of-property charge, and we affirm that conviction as well.
Affirmed.
GLOVER and HENRY, JJ., agree. | [
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PER CURIAM.
bin 2009, judgment was entered in the Jefferson County Circuit Court reflecting that appellant Marvin Livingston had entered a negotiated plea of nolo contendere to fourteen felony offenses for which an aggregate sentence of 156 months’ imprisonment had been imposed. In 2012, appellant filed in the trial court a pro se petition to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Supp.2006), alleging that he was not afforded effective assistance of counsel when he entered the plea in 2009.
The trial court denied the petition, and appellant brings this appeal. This court has held that it will reverse the circuit court’s decision granting or denying postconviction relief only when that decision is clearly erroneous. Paige v. State, 2013 Ark. 432, 2013 WL 5883809 (per curiam); Pankau v. State, 2013 Ark. 162, 2013 WL 1694909. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.
Appellant’s claims of ineffective assistance of counsel were cognizable under our Lpostconviction rule, Arkansas Rule of Criminal Procedure 37.1 (2009). A petition that states a claim for postconviction relief cognizable under Rule 37.1 is governed by that rule regardless of the label placed on it by a petitioner. Ussery v. State, 2014 Ark. 186, 2014 WL 1673818 (per curiam); Stanley v. State, 2013 Ark. 483, 2013 WL 6157324 (per curiam); Purifoy v. State, 2013 Ark. 26, 2013 WL 396004 (per curiam). To the extent that a claim is cognizable under the Rule, section 16-90-111 has been superseded, and any allegation that can be considered under Rule 37.1 is subject to the time limitations contained in the Rule. Ussery, 2014 Ark. 186 (citing Murphy v. State, 2013 Ark. 243, 2013 WL 2382727 (per curiam)).
Pursuant to Rule 37.2, when a petitioner entered a plea of guilty, a petition must be filed within ninety days of the date that the judgment was entered of record. Ark. R.Crim. P. 37.2(c)(i) (2009). The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and, if they are not met, the trial court lacks jurisdiction to grant postconviction relief. Ussery, 2014 Ark. 186; Talley v. State, 2012 Ark. 314, 2012 WL 3364266 (per curiam); Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996) (per curiam). The petition in the instant case was not timely filed because appellant filed it more than ninety days after the judgment had been entered of record; accordingly, the trial court had no jurisdiction to grant the relief sought. When the lower court lacks jurisdiction, the appellate court also lacks jurisdiction. Ussery, 2014 Ark. 186; Winnett v. State, 2012 Ark. 404, 2012 WL 5304090 (per curiam).
Even if considered under the provision in section 16-90-111 that allows the trial court to correct an illegal sentence at any time, appellant was entitled to no relief. Appellant did not claim that the sentences imposed were outside the statutory range for the offenses. Rather, appellant argued that the sentences imposed were illegal because he was denied effective |sassistance of counsel and was not properly informed of his parole-eligibility date.
A claim that a sentence is illegal presents an issue of subject-matter jurisdiction that can be addressed at any time. Ussery, 2014 Ark. 186; Skinner v. Hobbs, 2011 Ark. 383, 2011 WL 4397020 (per curiam); see Culbertson v. State, 2012 Ark. 112, 2012 WL 745303 (per curiam). However, the claim, as advanced in appellant’s petition, did not allege an illegal sentence of the type that is jurisdictional in nature. Rather, the ground for relief raised in appellant’s petition was of the type that should have been raised in the trial court. To the degree that the allegation concerned whether counsel was effective with respect to counsel’s advice to appellant in the guilty-plea proceeding, the claim should have been raised in a timely petition for postconviction relief pursuant to Rule 37.1. Ussery, 2014 Ark. 186. Allegations that constitute constitutional challenges to a sentence within the statutory range are assertions of trial error that are properly made at trial. Id.; see also Davis v. State, 2013 Ark. 118, 2013 WL 1091189 (per curiam). Section 16-90-111 does not provide a means to attack a sentence on the grounds raised by appellant. Davis, 2013 Ark. 118; see also Stanley, 2013 Ark. 483.
Affirmed.
. When a defendant enters a plea of guilty, the plea is his or her trial. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984); see abo Tolefree v. State, 2014 Ark. 26, 2014 WL 260990 (per curiam). | [
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PER CURIAM.
| Appellant Christopher S. Grady, by and through his attorney, Jill Blankenship, has filed a motion for rule on clerk. On June 19, 2013, the circuit court entered a judgment and commitment order. Grady timely filed a notice of appeal on July 15, 2013. Pursuant to Arkansas Rule of Appellate-Procedure Criminal 4(b) (2013), Grady’s record was due by October 13, 2013. On January 21, 2014, Grady filed a motion for extension of time to file the record in the circuit court, and the circuit court’s order granting the motion was also filed on January 21, 2014, after the record’s due date. Grady’s record is therefore untimely.
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There, we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or there is good reason. Id. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party 12or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief ■will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.
It is plain from the motion and record before us that there was error on Ms. Blankenship’s part in failing to obtain an extension before October 13, 2013. Pursuant to McDonald, swpra, we grant Grady’s motion for rule on clerk and forward a copy of this opinion to the Committee on Professional Conduct.
Motion granted. | [
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JOHN MAUZY PITTMAN, Judge.
_JjThis is an appeal from convictions of the crimes of rape, kidnapping, aggravated assault, robbery, and aggravated residential burglary found to have been committed by appellant and her adult son, Demar-ras Rayfield. Appellant argues that the evidence is insufficient to support her convictions of rape and kidnapping. We affirm.
In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, ie., considering only the evidence that supports the verdict, and we affirm a conviction if there is substantial evidence to support it. Rayfield v. State, 2014 Ark. App. 123, 2014 WL 668214. Substantial evidence, which may be direct or circumstantial, is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Ellis v. State, 2012 Ark. 65, 386 S.W.3d 485.
Viewed in the light of our standard of review, the record shows that the victim was having a sexual relationship with appellant’s husband. On May 27, 2012, after appellant’s |2husband left the victim’s apartment, the victim heard a knock on her door. When the victim opened the door, appellant and Demarcus Rayfield pushed their way into her home. Appellant confronted the victim about her relationship with appellant’s husband and threatened her. Rayfield then raised up the victim’s negligee, exposing her, and told appellant to “look between [her] legs because [she] might be wet.” Appellant then locked the door and punched the victim while Rayfield held her down. Then Rayfield began hitting the victim, and continued beating her after appellant had stopped. Appellant told Rayfield to “get that bitch” and to “keep that bitch quiet.” Rayfield then choked the victim from behind to the point that she could not breathe, forced her down the hallway into the bedroom, and raped her orally and vaginally. Appellant came back to the bedroom and saw the victim naked on the bed in front of Rayfield, with Rayfield’s genitals near her face. Appellant admitted that she saw blood from the beating on the victim’s door and in her bedroom. Appellant returned to the living room and waited for her husband to return while Rayfield raped the victim. When asked what led her son, Rayfield, to drag the victim back to the bedroom, appellant stated that “it was probably part me.”
Appellant concedes that there is substantial evidence to prove that Rayfield raped the victim but contends that the evidence is insufficient to prove that she was an accomplice to the rape. We do not agree. The elements of accomplice liability are defined by Arkansas Code Annotated § 5-2-403 (Repl.2013), which provides:
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, the person:
|a(l) Solicits, advises, encourages, or coerces the other person to commit the offense;
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing the offense; or
(3) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to prevent the commission of the offense.
(b) When causing a particular result is an element of an offense, a person is an accomplice of another person in the commission of that offense if, acting with respect to that particular result with the kind of culpable mental state sufficient for the commission of the offense, the person:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the particular result;
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the particular result; or
(3) Having a legal duty to prevent the conduct causing the particular result, fails to make a proper effort to prevent the conduct causing the particular result.
Although it is true that mere presence at the scene of the crime does not make one an accomplice as a matter of law, Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990), each participant is criminally liable for her own conduct and cannot disclaim responsibility because she did not personally take part in every act that went into making up the crime as a whole. Bass v. State, 2013 Ark. App. 55, 2013 WL 360863. A defendant is considered an accomplice if she takes some part in or performs some act involved in the commission of the crime; relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in the proximity of a crime, the opportunity to commit the crime, and association with a person involved in a manner suggestive of joint participation. Id. Here, appellant not only | accompanied Rayfield to the victim’s apartment, but she also assisted him in beating her and encouraged him to “get” her. Furthermore, we think that a jury could properly find that Rayfield’s forcible exposure of the victim to appellant early in the course of the crime shows that appellant was aware of the likelihood of the commission of the crime, and could reasonably be found to be an accomplice within the terms of section 5-2-403. See Hallman v. State, 264 Ark. 900, 575 S.W.2d 688 (1979).
Appellant next argues that the evidence is insufficient to support her conviction for kidnapping. A person commits the offense of kidnapping if, without consent, the person restrains another person so as to interfere substantially with the other person’s liberty with the purpose of, inter alia, facilitating the commission of any felony or flight after the felony; inflicting physical injury upon the other person; engaging in sexual intercourse, deviate sexual activity, or sexual contact with the other person; or terrorizing the other person. Ark.Code Ann. § 5-11-102(a)(3) through (a)(6) (Repl.2013). A kidnapping charge is proper when the restraint exceeds that normally incident to the underlying crimes — here, aggravated assault, rape, and robbery. See Smith v. State, 318 Ark. 142, 883 S.W.2d 837 (1994). Restraint alone will suffice; removal is not required. Id. The State need only prove that the accused restrained the victim so as to interfere with the victim’s liberty, without consent, for a specific purpose outlined in the statute. Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983). It is the quality and nature of the restraint, rather than its duration, that determines whether a kidnapping charge can be sustained. Cook v. State, 284 Ark. 333, 681 S.W.2d 378 (1984). Factors to be considered in determining whether a separate kidnapping conviction is 15supportabIe include whether the restraint (1) prevented the victim from summoning assistance; (2) lessened the defendant’s risk of detection; or (3) created a significant danger or increased the victim’s risk of harm. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). Here, Rayfield’s act of choking the victim and obstructing her airway, performed after appellant had instructed him to “keep that bitch quiet,” could properly be found to have satisfied all three of these factors. We hold that substantial evidence supports appellant’s conviction of kidnapping.
For her final argument, appellant asserts that the trial court failed to use its discretion when ordering that her sentences be served consecutively. We do not address this issue because the appellant failed to object to the trial court’s decision to run the sentences consecutively; the issue is therefore not preserved for appellate review, and we must affirm the trial court’s ruling. Mixon v. State, 330 Ark. 171, 954 S.W.2d 214 (1997).
Affirmed.
GLADWIN, C.J., and WHITEAKER, J., agree. | [
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PER CURIAM.
hln 1995, petitioner Malik A. Khabir, who is also known as Leroy McCoy, was found guilty of delivery of a controlled substance and sentenced to 480 months’ imprisonment and a $5000 fine. Because the offense was committed within 1000 feet of a park, the sentence was enhanced pursuant to Arkansas Code Annotated section 5-64-411(a) (Supp.1995). We affirmed. McCoy v. State, 326 Ark. 104, 929 S.W.2d 712 (1996).
On July 15, 2014, petitioner filed the instant motion, seeking at public expense a copy of the appellant’s brief-in-chief filed in the direct appeal of the judgment. Petitioner appended his affidavit of indigency to the motion.
As grounds for the request for the copy, petitioner states that he is seeking to get his case back before the courts with the assistance of a legal organization and that he is unable to pay the photocopying fee for a copy of the brief. Petitioner has not stated good cause to grant the motion.
Indigency alone does not entitle a petitioner to free copying of material on file with either |aof our appellate courts. See Williams v. State, 2014 Ark. 70, 2014 WL 585996 (per curiam); see also Mendiola v. State, 2013 Ark. 92, 2013 Ark. 92 (per curiam); Daniels v. State, 2012 Ark. 124, 2012 WL 859701 (per curiam); Cox v. State, 2011 Ark. 96, 2011 WL 737307 (per curiam); Evans v. State, 2009 Ark. 529, 2009 WL 3488388 (per curiam); Nooner v. State, 352 Ark. 481, 101 S.W.3d 834 (2003) (per curiam). A petitioner seeking a copy of written material filed in the course of the direct appeal of a judgment of conviction must show a compelling need for the copy to support a specific allegation contained in a timely petition for postconviction relief. See Williams, 2014 Ark. 70; see also Mendiola, 2013 Ark. 92; Vance v. State, 2012 Ark. 254, 2012 WL 1950406 (per curiam); Daniels, 2012 Ark. 124; Henderson v. State, 2011 Ark. 522, 2011 WL 6091359 (per curiam); Hickey v. State, 2010 Ark. 299, 2010 WL 2473342 (per curiam); Avery v. State, 2009 Ark. 528, 2009 WL 3488399 (per curiam); Bradshaw v. State, 372 Ark. 305, 275 S.W.3d 173 (2008) (per curiam).
Petitioner has not established that there is a postconviction remedy available to him at this time in either state or federal court. See Ward v. State, 2013 Ark. 250, 2013 WL 2460209 (per curiam). Moreover, even if there is a remedy available, he has not demonstrated that there is any particular issue that he cannot adequately raise to the court without access to the brief he seeks to obtain. Accordingly, he has failed to show that he has a compelling need for the brief to warrant providing it to him at public expense. Williams, 2014 Ark. 70; see also Mendiola, 2013 Ark. 92; see also Daniels, 2012 Ark. 124; Hickey, 2010 Ark. 299; Johnson v. State, 2010 Ark. 15, 2010 WL 135200 (per curiam).
Motion denied.
. Post-appeal motions that seek a copy at public expense of material on file with either this court or the Arkansas Court of Appeals are considered to be requests for postconviction relief. Mendiola, 2013 Ark. 92; Daniels, 2012 Ark. 124 (citing Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981) (per curiam)). | [
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DAVID M. GLOVER, Judge.
|, Calvin McHenry appeals from the December 17, 2013 order terminating reunifi cation services for him ¾ connection with his three minor childrep: A.M., a female (D.O.B.7-26-2004), C.M., a male (D.O.B.6-29-2005), and B.M., a fetnale (D.O.B.2-3-2009). The order did pot terminate his parental rights, but, noting that the termination of reunification services often leads to the termination of parental rights, a Rule 54(b) certification was included in the order pursuant to Rule 6-9(a)(l)(B) of the Rules of the Arkansas Supreme Court and Court of Appeals, certifying that the December 17 order constituted “entry of final judgment as to the finding that the minor children have been subjected to aggravated circumstances in that there is little likelihood that further services to the family will result in successful repnification with Calvin McHenry.” Calvin raises two interrelated points of appeal, challenging the sufficiency of the evidence supporting the trial court’s decision: 1) there was not sufficient [^evidence to prove the statptory ground for termination of services relied on by the trial court, and 2) the trial court erred when it denied Ms second oral motion to dismiss because the Department had not met its bhrden of proof. We affirm.
Procedural Background
Calvin and Suzann McHenry are the birth parents of the three minor children involved in this matter. The children were initially removed and plated in the custody of the paternal grandparents, Albert and Joyce McHenry, because Suzann burned A.M. “with [a] cigarette or cigarettes over the Memorial Day weekend in May of 2009.” Reunification was the case goal for the parents, but guardianship of the children continued with the grandparents. The grandparents were eventually made permanent guardians by order dated January 12, 2010, Suzann was ordered to have no contact with the children, and the court case was closed.
On July 11, 2011, the Arkansas Department of Human Services, (DHS) filed a new petition for emergency custody and dependency-neglect. The supporting affidavit basically reported facts supporting environmental neglect: roaches all over the place; a strong smell of urine and feces; trash everywhere; a grandparent’s report that one of the children was responsible for spreading her own feces all over the floor; that one of the three bedrooms was not being used because the grandmother’s sister and brother-in-law were shooting at them and the children; and that the other two bedrooms could not be entered because they were “filled all the way to the door entrance.” The children were taken into emergency custody and subsequently adjudicated dependent-neglected. The Court ordered reunification with the grandparents as the case goal, but the children remained in DHS custody. The goal of the ficase was eventually changed to adoption, and DHS was authorized to pursue termination of parental rights by order dated June 13, 2012, but not filed until November 16, 2012. Following a December 5, 2012 review hearing, the trial court ordered DHS to refile the petition for termination of parental rights, and the children remained in DHS custody.
On May 15, 2013, the trial court held a hearing for further disposition and review. In its June 7, 2013 order, the trial court reported that Suzann McHenry’s parental rights had been terminated on May 15, 2013, and an appeal had not yet been filed; that the grandparents’ guardianship of the children had been terminated by order entered on May 15, 2013; that return of custody to the remaining parent, Calvin McHenry, was contrary to the children’s welfare; and that the goal of the case was to be adoption. The order went on to provide, however, that DHS was to devel op an appropriate case plan for Calvin and to conduct a staffing for him. Calvin was ordered to attend parenting classes, view the “ticking-clock” video, remain drug free and undergo random tests, obtain and maintain stable employment, obtain and maintain stable and safe housing, and obtain a psychological assessment and follow its recommendations.
On July 22, 2013, another hearing was held for further disposition and review. The court noted that time for Suzann to appeal the termination of her parental rights had run; that the grandparents’ appeal was pending; and that DHS had filed in open court on that date a motion to terminate reunification services and a notice of intent to use child hearsay. The children remained in DHS custody. The trial court ordered DHS to develop an appropriate case plan for Calvin and to conduct a staffing for him within thirty days; to obtain a certified ltcopy of the full record of Calvin’s criminal conviction and submit it to the court; to refer Calvin to CSE; and to obtain a criminal background check and a child-maltreatment registry check on Calvin. The court ordered Calvin to comply with the case plan and to do all of the previously ordered things if he had not already done so. Calvin’s visitation was suspended, and a hearing was set for September 25, 2013, on DHS’s motion for no-reunification services.
On October 9 and November 20, 2013, a hearing on the DHS motion to terminate reunification services was held. On December 17, 2013, the trial court entered its order terminating reunification services. It is from this order that Calvin brings this appeal. The order granted only in part DHS’s motion to terminate services, but it found that doing so was in the children’s best interest and explained the rationale. The order provides in pertinent part:
a. The Court finds by clear and convincing evidence that the children have been subjected to aggravated circumstances in that there is little likelihood that services to the family will result in successful reunification. Ark.Code Ann. § 9-27-365(c)(2)(iv). The Court adopts in full Paragraph 3(c) of the Department’s Motion to Terminate Reunification Services, with the exception of the last sentence. Specifically, the juveniles have been out of the custody of the father, Calvin McHenry, since approximately 2009, when the juveniles were removed from the household of Calvin and Suzann McHenry due to the physical abuse of the mother, Suzann McHenry and adjudicated Dependent/Negleeted. As part of that case the juveniles were placed in the custody of the grandparents Albert and Joyce McHenry. The Juveniles were removed from the custody of Albert and Joyce McHen-ry on July 7, 2011, after allegations of environmental neglect, and were again adjudicated dependent/neglected. Although he was not explicitly included in the case plan, during the 21 month duration of that case, Calvin McHenry consistently attended hearings but did not request custody or make any significant attempts to regain custody of the juveniles up to the point where the Court terminated the rights of the custodians, Albert and Joyce McHenry, and the mother Suzann McHenry.
|fiThe trial court granted Calvin’s motion to dismiss as to the allegations contained in Paragraph 3(b)(i) and 3(b)(ii) of DHS’s motion to terminate services, which pertained, respectively, to sexual abuse and the fact that Calvin was a registered sex offender, and denied DHS’s motion to ter- mínate services on those grounds. The trial court ordered the immediate cessation of all reunification services and found that the children were in need of DHS services, that return of custody to Calvin was contrary to their welfare, and that continuation of custody in DHS was in the children’s best interest and necessary to the protection of their health and safely. The goal of the case remained adoption.
Summary of Testimony from Hearing on Termination of Services
Tosha Dixon, a family-service worker, testified at the hearing. She explained that “until approximately this summer,” Calvin had never specifically contacted DHS to request services; she did not believe he was sent notices for staffings before she was the case worker; she did send him staffing notices; and if he was present at the court hearings, he had the opportunity to hear how the case was going. She testified about the services offered and completed by Calvin, and also his compliance with things he was ordered to do.
She testified the children were doing well in their placements and the foster parents had expressed an intent to adopt. She explained the circumstances under which the children were removed from Su-zann’s and Calvin’s custody in 2009, which involved Suzann’s physical abuse of A.M., and stated the children had been out of Calvin’s custody since July 7, 2009 — almost four years — and during that time, Calvin had not made any significant attempts to request custody of his children. She expressed her opinion it was not likely further reunification ^services would succeed in returning custody to Calvin, and she based that belief in part on the fact that he relied on his parents to basically do what was best for his children; did not voice to DHS that he wanted to get his children back or ask what he needed to do to get them back; and she believed he simply turned over legal guardianship to his parents. She recommended the children remain in DHS custody and adoption be pursued.
On cross-examination, she acknowledged that previous case plans had not addressed Calvin as the father until she became the case worker; he was not provided any services other than visitation; but “he had ample opportunity to stand up in Court while he was here.” She acknowledged that “once I put him in the case plans and started providing the services to the Court order, he became very compliant. He’s done everything I’ve asked him to do.” She also acknowledged the psychological evaluation recommended that DCFS continue to work with Calvin. She acknowledged the investigations regarding Calvin for sexual abuse of A.M. had been concluded, and the allegations were unsubstantiated. She acknowledged Calvin had attended all of the hearings in the case.
Gracie Conner, licensed psychological examiner, testified about her treatment of A.M. Her testimony was merely proffered, was never heard by the trial court, and the trial court basically ruled in favor of Calvin on the sexual-abuse/inappropriate-comments grounds for termination of services. Consequently, it is not necessary for purposes of this appeal to set out her proffered testimony.
Calvin testified he had attended the hearings; he realized his parents were not complying with the case plan and that the course of the hearings was taking a turn; but he wasjjnot allowed an equal opportunity to express his own opinions at the hearings because the cases did not pertain to him. He explained his status as a registered sex offender, but because the trial court did not base its decision on that status, it is unnecessary to recount that testimony here.
Calvin’s attorney moved to dismiss. The trial court deferred ruling on the motion and continued the hearing until issues regarding the proffered testimony about the alleged sexual abuse could be addressed and decided.
The hearing reconvened on November 20, 2018. At the outset, the trial court reviewed the circumstances under which the earlier hearing had been continued and the decisions that had been made in the interim. Briefly, the court explained it had sustained Calvin’s objection to Conner’s testimony about what A.M. had told her because there was no hearsay exception that covered it, but the court had given DHS a window either to have A.M. testify live or to have DHS try to establish that A.M. was unavailable under Rule 804(b)(6) due to infirmity or incompetence or some other reason. DHS opted to have A.M. testify and requested a more informal setting, which the trial court accommodated. A.M. testified, but because her testimony played no role in the ultimate decision, we do not include it here.
Calvin’s attorney then renewed his motion to dismiss DHS’s motion to terminate reunification services, contending DHS had not met its burden because “the only testimony they have is that of the child, A.M., and that ... testimony [was] not credible.” The trial court heard arguments from all parties on the motion to dismiss. The trial court’s ultimate [¡decision has previously been set out in detail.
Points of Appeal
I.
Both of Calvin’s points of appeal challenge the sufficiency of the evidence. For his first point, he contends that the trial court erred in finding there was sufficient evidence to terminate reunification services to him on the basis there was little likelihood further services would result in successful reunification. We disagree.
Arkansas Code Annotated section 9-27-865(c) (Supp.2013) provides:
(c) An order terminating reunification services on a party and ending the Department of Human Services’ duty to provide services to a party shall be based on a finding of clear and convincing evidence that:
(1) The termination of reunification services is in the child’s best interest; and
(2) One (1) or more of the following grounds exist:
A) A circuit court has determined that the parent has subjected the child to aggravated circumstances that include:
(iv) A determination by a circuit judge that there is little likelihood that services to the family will result in successful reunification[.]
Calvin challenges only the trial court’s aggravated-circumstances finding, not the best-interest finding. Specifically, the trial court found:
[T]he juveniles have been out of the custody of the father, Calvin McHenry, since approximately 2009, when the juveniles were removed from the household of Calvin and Suzann McHenry due to the physical abuse of the mother, Suzann McHenry and adjudicated Dependent/Neglected. As part of that case the juveniles were placed in the custody of the grandparents Albert and Joyce McHenry. The Juveniles were removed from the custody of Albert and Joyce McHenry on July 7, 2011 after ^allegations of environmental neglect, and were again adjudicated depen dent/neglected. Although he was not explicitly included in the cáse plan, during the 21 month duration of that case, Calvin McHenry consistently attended hearings but did not request custody or make any significant attempts to regain custody of the juveniles up to the point where the Court terminated the rights of the custodians, Albert and Joyce McHenry, and the mother Suzann McHenry.
An action to terminate reunification services must be based on a finding of aggravated circumstances by clear and convincing evidence. Ark.Code Ann. § 9-27-825(h)(2)(C) (Supp.2Q13). In reviewihg the trial court’s evaluation of the evidence, we will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous. Chase v. Arkansas Dep’t of Human Servs., 86 Ark.App. 237, 184 S.W.3d 453 (2004). In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses, and in matters involving the welfare of young children, we give great weight to the trial judge’s personal observations. Id.
Calvin acknowledges that the children were placed with his parents in 2009 due to their mother’s physical abuse, and then removed from the grandparents’ custody in 2011 (because of environmental neglect in the grandparents’ home), with the goal being changed to adoption at the permanency-planning hearing on June 13, 2012. He argues, however, that DHS was never ordered to develop an appropriate case plan for him or to conduct a case-plan staffing for him or to provide reunification services for him until June 7, 20l3. He also notes that although he attended every hearing, he was not appointed counsel and he did not have any professional assistance to represent his interests until July 22, 2013.
He further argues that just four months after being ordered to do certain things, the case worker testified he had completed all of the things he had been ordered to do and had lipcomplied with everything DHS had asked of him. Even so, he notes his visitation was suspended pending an investigation on an allegation that was subsequently found to be unsubstantiated. He refutes the assertion he never requested custody of the children and never took the opportunity to stand up in court by arguing he was never allowed an equal opportunity to express his own opinions and was not advised of any services DHS could offer him at that time. He claims he did attempt to speak up in court and ask for custody but was denied the chance to speak because the case did not pertain to him, only his parents, who were the legal guardians at the time.
He argues that he is a truck driver by trade and that he could not be expected to know how to pursue or express his rights, but that he appeared at every hearing and attended visitation with his children. He states that his lack of “standing up in court” or requesting custody of his children was misconstrued and cited as a deficiency of such significance that it was the primary reason cited for terminating reunification services. He contends that it was his cooperation with DHS and the case plan and his deference to their authority and the court’s authority that resulted in his lack of aggressive action.
He finally contends case law does not provide an example where custodians were offered services for almost two years while a parent was excluded, and then that parent is joined into the case plan just days before the goal of the case is changed to adoption. He urges that by terminating reunification services just four months into the parent’s inclusion in those services is the same as fast-tracking termination of his parental rights.
While some of Calvin’s concerns are well-taken, we are simply not convinced the trial |n court clearly erred in concluding further reunification services would not result in a successful reunification. The children had been out of his care and custody for more than four years, and, with respect to each of the three children, that period of time was substantial. Moreover, while DHS was not without fault in its handling of Calvin’s role in this case, we cannot absolve him of responsibility. There was a period of time after the first case had been closed and before the children were taken from his parents when Calvin could have pursued avenues to regain custody of his children, but he did not — content for his parents to care for them. Once the case resulting in this appeal began, Calvin was not new to the system. He acknowledged not only attending the hearings but also being aware his parents were not following the case plan and the status of things was changing. Even if we were to accept his position that he tried to speak up in court and express his views, that does not explain why he did not pursue possible avenues for the return of his children with DHS personnel outside of court. Thus, while we agree he cannot be held accountable for knowing all of the “ins and outs” of DHS proceedings, it is clear he could have demonstrated a stronger interest in shifting custody to himself and finding out what he needed to do to make that happen. His attempts to engage in that effort came too late.
II.
For his remaining point of appeal, Calvin contends the trial court erred in denying his motion to dismiss DHS’s motion to terminate reunification services. He contends the trial court erred when it did not act on his oral motion to dismiss after A.M.’s testimony; that Conner’s proffered testimony concerning what she had been told by A.M. had been ruled ^hearsay and the hearing reconvened to hear testimony from the child; and that the trial court subsequently ruled the child’s testimony was not credible. Calvin’s argument might have merit if the trial court had granted DHS’s motion to terminate services based on the motion’s assertions of aggravated circumstances in the form of alleged sexual abuse by Calvin and/or his status as a registered sex offender, but the trial court did not. Rather, it specifically granted Calvin’s motion for a directed verdict with respect to those allegations, explaining:
All right, based on the evidence heard and considered back on October 9, 2013, and based on the evidence heard and considered today, judging the credibility of witnesses, reasonable inferences and other factors the Court’s required to consider in exercising the Court’s discretion, the Court partially grants Mr. Du-nigan’s motion for a directed verdict as to Paragraphs (3) (b)(1) and (3)(b)(2)(l). [Paragraph 3(b) of DHS’s motion to terminate reunification services alleged aggravated circumstances based on Calvin’s alleged sexual abuse and Calvin’s status as a registered sex offender.]
The Court really can’t reconcile the testimony of this eight-year-old regarding the time frames and what happened, you know, it very well could have happened but I just can’t find it even by a preponderance of the evidence and the Department’s required to prove no reunification services by clear and convincing evidence. Likewise, even if Mr. McHenry is a registered sex offender he explained the circumstances in that case, with that explanation in place the Court doesn’t find that, just being a registered sex offender under Arkansas law, in this particular circumstance, precludes Mr. McHenry from not having reunification services to his children, on that specific ground.
(Emphasis added.) The trial court then went on to deny Calvin’s motion for directed verdict regarding the little-likelihood-of-success ground asserted in Paragraph 8(c) of DHS’s motion to terminate services. Even so, the trial court specifically rejected the last sentence of Paragraph 3, subsection (c), explaining, “I’m looking at your Subsection C, aggravated circumstances, little likelihood, and the last sentence says, ‘Moreover, since Calvin McHenry has been included in the case plan he has not been compliant with that case plan.’ Well, Ms. 113Tosha Dixon’s testimony directly controverted that, I mean, according to Ms. Dixon’s testimony he’s complied with about everything it sounds like.” The trial court then specifically eliminated the allegation that Calvin was not compliant with the ease plan. The trial court’s decision to grant DHS’s motion to terminate services was thus based solely on its finding that there was little likelihood that further services would result in a successful reunification, and, even with respect to that ground for termination of services, the trial court rejected the allegation that Calvin had not been compliant with the ease plan. Accordingly, the trial court ruled in Calvin’s favor on the challenged items concerning allegations of sexual abuse, his status as a registered sex offender, and his compliance with the case plan. So, as a separate challenge to the sufficiency of the evidence, we find no merit in this point of appeal.
Affirmed.
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ROBERT J. GLADWIN, Chief Judge.
|! Appellant, Ahern Rentals, Inc. (“Ahern”), appeals from the July 12, 2013 order of the Faulkner County Circuit Court. Ahern argues that the circuit cdurt erred in dismissing its complaint against appellees, specifically claiming that its notice complied with the statutory requirements of Arkansas Code Annotated section 18-44~115(b) (Supp.2018) ill providing (1) a general description of the labor, service, or materials furnished, ahd (2) an amount due; and that it is entitled to assert its lien claim as a subcontractor in accordance with Arkansas Code Annotated section 18-44-101(a) (Repl.2003). We reverse and remand.
Ahern entered into a contract with White Water Builders, Inc. (“White Water”), a subcontractor to the contractor, appellee Salter Construction, Inc. (“Contractor”), to provide rental equipment in the construction of an improvement owned by appellee Centerstone Apartments of Conway, LLC (“Owner”). White Water failed to fulfill its payment | ^obligations to Ahern for the equipment used in the construction and subsequently filed for bankruptcy protection. Pursuant to section 18-44-115, Ahern timely provided Contractor and Owner with a severtty-five-4ay notice (“75 Day Notice”) of its intent to file a construction lien.
Ultimately, Ahern filed its complaint qn June 29, 2012, against Contractor, Owner, Washington International Insurance Company (“WIIC”), and Mareos J. Martinez, the guarantor of its cóntraet with White Water, to foreclose its lien and pursue a breach-of-guaranty agreement against Martinez. Appellees Contractor, Owner, and WIIC filed a motion to dismiss the complaint pursuant to pule 12(b)(6) of the Arkansas Rules of Civil Procedure on July 20, 2012, arguing that (1) Ahern is not an entity entitled to assert a lien as a rental-equipment company, (2) Ahem failed to provide a general description of the services provided in its 75 Day Notice as required by section 18-44-115(b)(6)(A), and (3) Ahern failed to provide an amount owed and unpaid in its 75 Day Notice as required by section 18-44-115(b)(6)(A).
Ahern responded to the motion to dismiss on August 6, 2012, and a hearing was held on appellees’ motion on June 24, 2013. From that hearing, and based upon the motions and pleadings of the parties, the circuit court granted appellees’ motion to dismiss Ahern’s complaint and entered its order on July 12, 2013. Ahern subsequently filed a motion for | ¡¡default judgment against Martinez on August 22, 2013, and the circuit court entered a judgment and decree against Martinez on September 24, 2013. Ahern filed a notice of appeal with respect to the July 12, 2013 order on October 15, 2013, after the judgment against Martinez had been entered, thus making the order final and appealable.
Initially, we address Ahern’s argument regarding its underlying entitlement to assert its lien claim as a subcontractor in accordance with section 18-44-101(a). Despite the lack of a specific finding by the circuit court on that issue, we presume that the circuit court reviewed the parties’ arguments and determined that Ahern is entitled to assert such a lien because the circuit court addressed the resulting issues related to Ahern’s 75 Day Notice. Because that determination is inconsistent with Ahern’s position and because appel-lees did not file a cross-appeal on this issue, we need not make an additional holding on this issue.
Lien statutes are construed strictly, as they are in derogation to the common law. May Constr. Co., Inc. v. Town Creek Constr. & Dev., LLC, 2011 Ark. 281, 383 S.W.3d 389; Simmons First Bank v. Bob Callahan Servs., Inc., 340 Ark. 692,13 S.W.3d 570 (2000). Strict construction requires that nothing be taken as intended that is not clearly expressed, and the plain meaning of the language employed should be used. May Constr. Co., supra. Even when statutes are to be strictly construed, however, they must be construed in their entirety, harmonizing each subsection where possible. Simmons First Bank, supra.
A circuit court’s interpretation of a statute is reviewed de novo and will not be reversed unless it is shown that the circuit court erred, and, absent a showing of error, the circuit court’s interpretations are accepted as correct. Simmons First Bank, supra; Bryant v. Cadena Contracting, Inc., 100 Ark.App. 377, 269 S.W.3d 378 (2007). The basic rule of statutory construction is to give effect to the intent of the drafting body. Bryant, supra. In reviewing issues of statutory interpretation, this court first construes a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. May Constr. Co., supra. When the meaning is clear and unambiguous, the court does not resort to the rules of statutory interpretation. Id.
I. Compliance Regarding Description of Labor, Senice, or Materials Furnished
The circuit court ruled in its order granting appellees’ motion to dismiss that Ahern’s 75 Day Notice “failed to give a general description of the labor, services, or material furnished by the Plaintiff, but rather listed that ‘equipment rental’ was provided.” The specific statute that governs this description provides:
(6) The notice shall contain the following information:
(A) A general description of the labor, service, or materials furnished, and the amount due and unpaid....
Ark.Code Ann. § 18-44-115(b)(6)(A). This subsection was reviewed by our supreme court in Ground Zero Construction, Inc. v. Walnut Creek, LLC, 2012 Ark. 243, 410 S.W.3d 579. The court held that the 75 Day Notice in that case did not comply with section 18^44-115 because it merely tracked the language of the statute without providing any description. Id. at 6, 410 S.W.3d at 582. The supreme court indicated, however, that the contractor could have included the description of work as set forth in its contract with the owner of the project to satisfy the statutory requirement for a general description, which stated that the work was for “construction of water and sewer for a commercial subdivision, Walnut Creek.” Id. at | ¡¡6-7, 410 S.W.3d at 582. The supreme court explained that the distinction was that the contractor “failed to include any description whatsoever in its lien notice,” and therefore failed to strictly comply with section 18^4-115(b)(6)(A).
Ahern claims, and we agree, that pursuant to Ground Zero, a lien claimant is statutorily required to provide only a general description of the work provided in order to strictly comply with the statute. Here, Ahern provided just such a description of the type of services provided to the construction project by expressly providing that the lien amount being sought was for “rental equipment” provided to a particular subcontractor. When compared to Ground Zero, supra, in which the supreme court held that the description of labor, service, or materials furnished listed as “in connection with sums owed and unpaid for labor and materials provided ...” was inadequate, but suggested that a listing of “construction for water and sewer ...” would have amounted to a sufficient general description, Ahern’s description of “rental equipment” is sufficiently descriptive to strictly comply with the statutory requirement to provide a general description of the labor, service, or materials provided.
Despite appellees’ assertion that Ahern’s description provided in its 75 Day Notice is “comparable to the description rejected” in Ground Zero, when the two are actually compared, Ahern’s notice accomplished something above and beyond the notice in Ground Zero. Ahern’s notice provided Owner with a general description of its service and additional information that enabled Owner to take steps to protect itself against loss, which is consistent |fiwith what appellees claim is the statute’s underlying objective, citing Ellis v. Fayetteville Lumber & Cement Co., 195 Ark. 385, 112 S.W.2d 613 (1938). Here, Ahern’s notice provided the “short, general description” of its services to which the supreme court in Ground Zero was alluding. Ahern described the service provided to appellees’ project as being “equipment rental,” while also complying with the other requirements in its notice by providing a description of the job to which the equipment rental service was provided, the name of appellees’ subcontractor that hired Ahern, and the amount being claimed. Accordingly, we hold that Ahern’s 75 Day Notice strictly complied with the statutory requirements.
II. Compliance Regarding Provision of Amount Due
Ahern’s 75 Day Notice contained the words “estimated price” in the amount of $29,800 as its description of the amount due and unpaid. When the final invoices were tallied and the “10 Day Notice” was subsequently provided to appellees pursuant to section 18-44-114 (Supp.2013), the final lien amount requested was for $27,451.78. Ahern maintains that the circuit court improperly held that Ahern’s 75 Day Notice did not provide an amount due and unpaid.
Ahern reiterates that section 18-44-115(b)(6)(A) states that the 75 Day Notice shall contain a general description of the labor, service, or materials furnished, and the amount due and unpaid. Ahern submits that the statute simply requires the claimant to state “the amount due and unpaid” in order to strictly comply, pointing out that there is no qualifying language that would invalidate the lien claim if the amount stated in the 75 Day Notice is different than the amount later sought in future notices or a complaint to foreclose on the lien. Nor is there |7any qualifying language in the statute that invalidates the lien claim if the amount sought in the 75 Day Notice includes amounts for profits, which are not lienable. See Hickman v. Kralicek Realty & Constr. Co., 84 Ark. App. 61, 129 S.W.3d 317 (2003) (holding that where a claimant seeks a lien on an amount more than the services, labor, or materials provided, the circuit court must determine the cost of the services, labor, or materials actually furnished and used in the project and disallow a lien for those items which are not lienable, such as profits).
In Hickman, supra, the claimant was not barred from pursuing its lien on valid amounts allowed for in the statute when it initially sought judgment for an amount more than it could claim in its lien. Id. Rather, it is the burden of the claimant to prove at trial whether he is entitled to the full amount sought in the lien claim. See Del Mack Constr., Inc. v. Owens, 82 Ark. App. 415, 118 S.W.3d 581 (2003). Additionally, there is no case law that invalidates a lien for claiming an amount different than what can be proved at trial as lienable. While acknowledging that the amount stated in Ahern’s 75 Day Notice is admittedly $2,348.22 more than what is claimed in its 10 Day Notice and affidavit of account, Ahem argues, and we agree, that the discrepancy is not fatal to its hen claim. We hold that Ahern strictly complied with the requirement of the statute by providing an amount due and unpaid, even if the initial amount provided in the 75 Day Notice was ultimately for more than it could prove as lienable.
Whether the amount stated in the 75 Day Notice can be proved at trial is not a requirement of section 18-44-115 when determining strict compliance. To interpret the plain language of section 18-44-115(b)(6)(A) to require the amount stated in the 75 Day |8Notice to be proved in full at trial in order to maintain a valid lien claim would be to imply something that is not expressly stated in the statute, and such an interpretation violates the rules of strict construction. Simmons First Bank, supra. The merits of whether the entire stated amount due and unpaid in the 75 Day Notice is lienable is an issue of proof to be decided by the trier of fact at trial, not through a Rule 12(b)(6) motion. Speights v. Stewart Title Guar. Co., 358 Ark. 59, 186 S.W.3d 715 (2004).
Furthermore, the intent of the 75 Day Notice to owners and contractors of a commercial construction project is to notify them that the claimant issuing the notice “is currently entitled to payment but has not been paid.” Ark.Code Ann. § 18-44-115(b)(4). The Arkansas General Assembly has expressly recognized that
[o]wners and developers of commercial real estate are generally knowledgeable and sophisticated in construction law, are aware that unpaid laborers, subcontractors, and material suppliers are entitled to assert liens against the real estate if unpaid, and know how to protect themselves against the imposition of mechanics’ and material suppliers’ liens.
Ark.Code Ann. § 18-44-115(b)(l)(A). Ahern claims that this is precisely why there is no requirement to provide a “pre-construction lien notice” to owners of a commercial construction project. Upon reading Ahern’s 75 Day Notice, appellees could, or should, have known not only who sent the notice, the amount that was being claimed, the type of services that were provided, and to which subcontractor those services were provided, but also that they could have paid the named claimant the amount stated in order to protect themselves from a lien claim.
laBased on our presumption that the circuit court determined that Ahern was entitled to assert his lien against appellees, and because we hold that Ahern’s 75 Day Notice complied with the relevant statutory requirements with respect to the description of the services provided and the amount due and owing, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
GLOVER and WHITEAKER, JJ., agree.
. When making a claim for a construction lien, section 18-44-1 i 5 provides for what is commonly referred to as the "75 Day Notice,” which is required to be given to the property owner and the contractor by subcontractors, service providers, material suppliers, and laborers within seventy-five days from the last day of labor, services, or materials provided to the project.
. Ground Zero, 2012 Ark. 243, at 2, 410 S.W.3d at 580. | [
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RITA W. GRUBER, Judge.
I;This case involves a sewer system that was not fully completed. In June 2004, appellant Roberts Contracting Company, Inc. (Roberts), agreed to build and complete a sewer system for appellee Valentine-Wooten Road Public Facility Board (VWR) by April 12, 2005. Although VWR agreed to obtain all necessary easements, it did not resolve disputes with two landowners until very late in the project. Those issues, along with wet weather and a contract dispute between the project engineer, Bond Consulting Engineers, Inc., and Pulaski County, delayed construction. More than a year past the original completion date, with at least one extension granted, Roberts walked off the job and VWR refused to pay all of Roberts’s last bill. The sewer system was not operational. Roberts sued |2VWR for breach of contract, and VWR filed a counterclaim for damages caused by Roberts’s failure to complete and repair the system. After a bench trial, the circuit court denied Roberts’s claim on the ground that it had not substantially performed, and awarded liquidated damages for the delay to VWR. Roberts then filed this appeal, and VWR cross-appealed. The issues we must decide are whether Roberts substantially performed; whether Roberts may recover for the work it did complete; whether VWR was entitled to liquidated damages; and whether the trial court awarded liquidated damages for the proper period of time. We hold that, although Roberts did not substantially perform, it is entitled to appropriate compensation from VWR, and that the court did not err in awarding VWR liquidated damages.
I. Facts and Procedural History
The contract provided that VWR would pay $2,088,166 for Roberts to build the sewer system, which was to be accepted by the City of Jacksonville, and that, if Roberts did not complete the work on time, it would pay $400 per day until completion. Roberts received an extension from VWR until October 20, 2005, but did not finish the job by then. By fall 2005, Roberts had installed and tested the sewer lines, and had installed five pump stations and the force-main pipes and related equipment. The disputes over the easements across the Pickens and Harris properties, however, had frustrated completion. The pump station on the Pickens property still lacked power, and Mr. Harris had damaged a force main on his property that Roberts had, at VWR’s direction, placed outside the easement. The |sPickens easement was finally settled in January 2006, but the Harris dispute was not resolved until May 2006. Further, Bond Consulting Engineers stopped its on-site supervision of the job in December 2005 after a dispute with Pulaski County over payment. The parties disagree about whether VWR’s failure to fulfill its obligations hindered Roberts’s ability to perform and whether VWR agreed to another extension until May 1, 2006. Roberts left the job at this time.
On May 16, 2006, VWR refused to pay Roberts the entire amount of a bill on the ground that it had not completed all of the work. The pay estimate indicated that retainage (from work already performed and partially paid) at that time was $104,408.30, and that Roberts had earned an additional $57,532.50, which had not yet been paid. Roberts refused to perform further and asserted that the purportedly incomplete work was not within the scope of the contract. It also claimed that its ability to perform had been hampered by VWR’s failure to perform its obligations. A video inspection performed by Jacksonville Waste Water Utility in November 2006, more than a year after the lines had been successfully tested, revealed numerous defects and debris in the sewer system. Roberts took the position that the problems in the lines had developed during the year-long interval between its completion of the lines and the taping.
Roberts sued VWR for breach of contract, alleging that it had substantially performed, and seeking $162,502.80. Roberts also sued Pulaski County, which was a party to the ^contract. Pulaski County was dismissed as a party and that portion of the case has not been appealed. VWR denied that Roberts had substantially performed and filed a counterclaim requesting actual damages for Roberts’s failure to complete the project. According to VWR, Roberts failed to perform the following contractual obligations: installing a working SCADA system for each pump station; adequately testing its work; completing the sewer system so that it could be accepted by the City of Jacksonville; and, after completing the system, submitting “as-built” drawings. VWR also asked for liquidated damages for delays caused by Roberts.
At trial, Roberts introduced the testimony of Cotton Roberts, the company’s president, who prepared the bid; Leigh Ann Pool, a program manager with Central Arkansas Planning and Development District, Inc.; Bradley Roberts, Cotton’s son, who works for Roberts and supervised this project; Thomas Bond, with Bond Consulting Engineers; Gregory Wood, an inspector for Bond; and Michael Bolin, a civil engineer. At the conclusion of its case, Roberts moved to amend the pleadings to conform to its proof of damages in the sum of $177,390.80. The court granted this motion. VWR presented the testimony of Mark Wilkins, a civil engineer with the North Little Rock Sewer Department; Robert Williams, the engineering construction manager for the Jacksonville Waste Water Utility; Josh Minton, the project engineer with Bond; and Frank Hood, VWR’s chairman. In rebuttal, | ¿Roberts presented the testimony of Brad Roberts.
II. The Circuit Court Ruling
The trial court issued a letter opinion finding that Roberts had not substantially completed the project; that the sewer system was not operational; that VWR had not yet received any benefit from the project; and that Roberts would not suffer forfeiture because it had been paid for the part of the job it had completed. The court noted that the pumping stations had not been tested or turned on because electricity was not provided to them, and that, by the “plain language” of the contract, Roberts had the responsibility for providing electricity. The court stated that Roberts was also required by the contract to provide the SCADA system. It further found that the contract required Roberts to provide the as-built drawings, although, if everything else had been accomplished, the court said that it would have found that Roberts had substantially complied. The court declined to determine whether clean-up was complete, noting the conflicting testimony on that issue. Because VWR offered no admissible evidence on the amount of damages required to repair the sewer system, the court declined to award actual damages to VWR. The court said that it would, however, award liquidated damages from May 1, 2006, which it found was the end of the final extension, to August 24, 2006, when Roberts filed this lawsuit.
The court entered a judgment incorporating these findings and denying Roberts’s | (¡request for damages because it had not substantially completed the project. In the judgment, the court directed Roberts to provide the SCADA system within 90 days, upon which it would be entitled to receive the contract price, and ordered it to provide VWR with as-built drawings. The court declined to rule on the clean-up work, or to award actual damages to repair the system to VWR, because the evidence was insufficient. The court also made the following findings:
[VWR] is entitled to liquidated damages on its counterclaim against [Roberts] in the sum of $46,400. [Roberts] seeks to set-off the liquidated damages awarded to VWR based upon progress payments owed to them. I have found that [Roberts] breached its contract with [VWR] by failing to complete the sewer project. When [Roberts] breached its portion of the contract, [VWR] was entitled to cease all of their contractual obligations to [Roberts] such as payments. Stocker v. Hall, 269 Ark. 468, 602 S.W.2d 662 (1980). The payments not required to be remitted by [VWR] would include the retainage and the $57,532.50 approved as evidenced by Plaintiffs Exhibit 22 (last page). Under a theory of unjust enrichment, [Roberts] seeks to recover funds withheld by [VWR] for work not yet completed. Brill’s Arkansas Law of Damages § 17-3 provides that “even if a contractor has not substantially performed, and even though he is the breaching party, he may be able to recover for the value of partial construction.” (Emphasis added.) In this case, I find that [VWR] will not be unjustly enriched if they are not required to pay for construction partially completed by [Roberts]. As [VWR] demonstrated, these payments served as retainage to ensure that 1) [Roberts] had money available to complete the project and 2) the work was actually completed. [VWR] will not be unjustly enriched because they are faced with completing a sewer project that has remained stagnant for months. The testimony was that, in addition to completing the sewage system, maintenance and repair work would have to be conducted in order to have the sewer system in working order.
These appeals followed.
III. Standard of review
|7In civil bench trials, the standard of review on appeal is whether the trial court’s findings were clearly erroneous or clearly against a preponderance of the evidence. Rooke v. Spickelmier, 2009 Ark. App. 155, 314 S.W.3d 718. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been committed. Id.
IV. Direct appeal
A. Substantial Performance
Roberts first argues that the trial court’s finding that it did not substantially perform its obligations under the contract was clearly erroneous, even though the system was not fully complete and operational. When a contractor is in default by having failed to complete the contract, he can recover in spite of his breach if his performance was sufficiently substantial. Cox v. Bishop, 28 Ark.App. 210, 772 S.W.2d 358 (1989). If omissions or deviations from the contract are inadvertent or unintentional; are not due to bad faith; do not impair the structure as a whole; and are remediable without doing material damage, substantial performance permits the contractor to be compensated, with deductions from the contract price. Id. “The doctrine of substantial performance is intended to protect the right to compensation of those who have performed in all material and substantive particulars, so that their right to compensation may not be forfeited by reason of mere technical, inadvertent, or unimportant omissions or defects.” 15 Samuel Williston, A Treatise on the Law of Contracts § 44:52, at 220-21 (4th ed.2000). The Restatement (Second) of Contracts § 241 (1981) ^characterizes this question as whether a failure of performance was “material.” A material breach is a failure to perform an essential term or condition that substantially defeats the purpose of the contract for the other party. AMI Civ. 2427 (2005).
Substantial performance cannot be determined by a mathematical rule relating to the percentage of the cost of completion. Cox, supra. There is no precise formula to use, Roberts & Co. v. Sergio, 22 Ark.App. 58, 733 S.W.2d 420 (1987), and the issue of substantial performance is a question of fact. Cox, supra. In determining whether performance is substantial, the following considerations are significant: (1) the extent to which the injured party will be deprived of the benefit that he reasonably expected; (2) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (3) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (4) the likelihood that the party failing to perform or offer to perform will cure his failure, taking account of all the circumstances, including any reasonable assurances; and (5) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing. Id.; see also 8 Arthur L. Corbin, Corbin on Contracts § 36.1 (rev. ed.1999).
Roberts challenges the trial court’s finding that VWR derived no benefit from the work that Roberts completed. It also argues that it was not required to arrange for permanent electrical power to the pump stations and asserts that VWR was obligated to make those arrangements, including the one on the Pickens property. As for the other unfinished work, | ^Roberts asserts that its other failures — not installing the SCADA system; not repairing the cut in the force main caused by Mr. Harris; not providing as-built drawings; and not repairing the problems disclosed by Jacksonville’s video — did not render its performance less than substantial. It was undisputed that the gravity lines, manholes, and force mains (except for the one damaged by Mr. Harris) passed all tests required by the contract in the fall of 2005, a year before the video tape raised questions about the quality of Roberts’s performance. It was undisputed that the specifications required a SCADA-system contractor to perform that installation; that Jacksonville wanted a SCADA system purchased and installed by the manufacturer with whom it had previously dealt; and that none of the SCADA-system funds held by VWR had been spent. It was also undisputed that the manufacturer of the pump stations had already been paid and was obligated to perform the tests on them, once the stations got permanent electrical power.
Roberts also urges us to recognize that some major delays were caused by VWR’s failure to settle the easement across the Harris property before May 2006 or to resolve the Pickens dispute before January 2006. We note that paragraph 5.1.2 of the contract expressly required VWR to obtain all land and rights-of-way necessary for the project before Roberts started work, but VWR failed to do so. Additionally, paragraph 7.1.5 of the contract, which stated that the engineer would provide a qualified resident observer to be on site at all times when the contractor was working, was not fulfilled after Bond stopped its on-site inspection in December 2005 because of a dispute with Pulaski County.
|10g. Breach of Contract/Interpretation
Before addressing whether Roberts’s purported breaches of the contract were material or sufficient to prevent its performance from being considered substantial, it is necessary to decide whether Roberts actually breached the contract. Roberts asserts that some of its purported omissions, especially arranging for permanent electrical power, were not even required by the contract.
An analysis of a breach-of-contract claim based upon the theory of substantial performance must begin with a determination of the contract’s terms. 15 Samuel Williston, A Treatise on the Law of Contracts § 44:54, at 228. When performance of a duty under a contract is contemplated, any nonperformance of that duty is a breach. Taylor v. George, 92 Ark.App. 264, 212 S.W.3d 17 (2005). It is a well-settled rule that the intention of the parties to a contract is to be gathered, not from particular words and phrases, but from the whole context of the agreement. Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365, 255 S.W.3d 424 (2007). The court is to give great weight to the construction of the contract given to it by the parties, Synergy Gas Corp. v. H.M. Orsburn & Son, Inc., 15 Ark.App. 128, 689 S.W.2d 594 (1985), and it may look to the conduct of the parties to determine their intent. Taylor, supra. When a contract is free of ambiguity, its construction and legal effect are questions of law for the court to determine. State Farm Fire & Cas. Co. v. Amos, 32 Ark.App. 164, 798 S.W.2d 440 (1990). Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Nash v. Landmark Storage, 1LLC, 102 Ark.App. 182, 283 S.W.3d 605 (2008). The determination of whether ambiguity exists is ordinarily a question of law for courts to resolve. Magic Touch Corp. v. Hicks, 99 Ark.App. 334, 260 S.W.3d 322 (2007).
The trial court concluded that the contract unambiguously required Roberts to provide the SCADA system and the electrical power, and that Roberts’s failure to perform both of these obligations rendered its performance less than substantial. As for the permanent electrical power, we disagree. We conclude that this portion of the contract was ambiguous and the parties’ course of performance demonstrated that they intended for VWR to be equally responsible with Roberts in arranging for permanent power. Taylor, supra.
Paragraph 3.1 of the contract, which set forth Roberts’s responsibilities, provided in subparagraph 3.1.1:
It is understood that unless otherwise specifically stated in the contract documents, the contractor shall provide and pay for all materials, labor, tools, equipment, water, light, power, transportation, superintendence, temporary construction of every kind, and all other services and facilities of every kind whatsoever necessary to execute, complete, and deliver the complete project within the specified time.
Brad Roberts testified that he interpreted the contract as simply requiring Roberts to provide temporary power to the pump stations. Roberts’s expert witness, Michael Bolin, testified that “it’s always the owner who provides the power....” Although Josh Minton testified that the responsibility to provide power lay with Roberts, the parties’ course of performance showed a joint effort to obtain power. Indeed, the parties acted as though the responsibility lay with both sides and required mutual cooperation. In the end, because of misunderstandings and 112miscommunication, electrical power to the remaining pump stations was not completed. We therefore hold that the trial court’s finding that Roberts was solely required to provide the permanent electrical power was clearly erroneous.
VWR does not dispute that Roberts completed at least 90% of its work. By November 2005, Roberts had installed and tested the pipe and manholes required by Schedule I of the contract. It also installed the force-main pipe and related equipment, as well as five pump stations, set forth in Schedule II. We note that VWR approved the May 16, 2006 pay estimate reflecting that Schedule II of the contract was 100% complete, except for connecting to the Jacksonville pump stations, which (the evidence showed) Jacksonville was not yet ready to complete. The evidence demonstrated that Roberts’s failure to complete the testing was, at least partially, excused by VWR’s failure to timely acquire all of the necessary easements and to help get electrical power to the other pump stations. A property owner and VWR board member, Mr. Harris, dug up and with a chain saw damaged a force main that was installed where VWR and Bond had instructed Roberts to place it, outside the easement. Additionally, there also was no permanent power to the pump station on the Pickens property, where VWR failed to secure the easement until long after it was needed. As a result, neither the force main nor the pump station could be tested. In light of VWR’s failure to fully perform its own obligations, we cannot say that Roberts materially breached the contract in regard to permanent electrical power.
Although the SCADA system was an “alternate bid,” which Brad Roberts stated was | ^something that Roberts would “help” VWR with, there was testimony that the parties understood that it was Roberts’s responsibility to purchase the system for installation, and the total bid awarded included this purchase item. The trial court, therefore, did not clearly err in ruling that the SCADA system was Roberts’s responsibility. But it was undisputed that the SCADA system was not essential to the sewer system’s operation. The pump stations could be monitored manually. We therefore cannot agree that the SCADA system’s omission was a material breach or rendered Roberts’s performance less than substantial. Roberts conceded at oral argument, however, that VWR was entitled to recover from Roberts $9750, the amount of the system’s price increase that occurred during the delay. This concession filled the gap in VWR’s proof on the cost to VWR of completing the contract on this issue. As discussed below, that amount will be off-set against the damages awarded to Roberts. VWR will be responsible for arranging the SCA-DA system’s installation.
Although Roberts was required to supply the as-built drawings, its only role in that process was to serve as a conduit. Bond Consulting Engineers was to prepare the drawings, and Roberts was to then deliver them to VWR. The trial court found as much in its final order. We therefore hold that no material breach occurred on the as-built drawing.
Nevertheless, we cannot say that the trial court’s finding of fact that Roberts did not substantially perform is clearly erroneous. The court found that Roberts breached the' contract because it did not complete the project. When Roberts walked off the job, VWR did not yet have the benefit it expected, a working sewer system. This is the first significant consideration determining substantial performance. Cox, 28 Ark.App. at 213, 772 S.W.2d at 359. “[A] high degree of difference in form and usefulness may be decisive on the question of substantial performance .... ” 8 Arthur L. Corbin, Corbin on Contracts § 36.7, at 347. We conclude that this consideration carries great weight in this case. A working sewer system was the essence of this contract. Unlike in the City of Whitehall v. Southern Mechanical Contracting, 269 Ark. 563, 599 S.W.2d 430 (1980), this case was not about which party was legally responsible for problems and costs incurred along the way to an operational sewer system. This sewer system was more like a building that — though much work had been done on it — could not be occupied and used when the contractor abandoned the job.
Roberts throwing its hands up and leaving the project is another significant consideration. Cox, 28 Ark.App. at 213, 772 S.W.2d at 360. While VWR fell short in cooperating on permanent power, Roberts walked out rather than continuing to push to resolve this important issue. There was no likelihood of Roberts curing, another factor that weighed against a finding of substantial performance. Cox, 28 Ark. App. at 213, 772 S.W.2d at 359. Next, because Roberts was paid for almost all of its work along the way — more than 1.8 million dollars — the scope of the contractor’s potential forfeiture was relatively small. Id. The remaining factor pointed both ways: hypothetically, VWR could have been compensated for the lost benefit with cost-of-completion and cost-of-repair damages; in this ease, however, VWR’s proof on those issues failed. Without question, Roberts’s work on the sewer sys tem was considerable. Based upon the record as a whole, and the settled law about the significant | ^considerations in determining substantial performance, however, we are not left with the definite and firm conviction that the circuit court erred in finding no substantial performance.
C. Value of the Benefit
While we agree that Roberts did not substantially perform, we do not agree that it can have no recovery:
Even if the contractor has not substantially performed, and even though he is the breaching party, he may be able to recover for the value of partial construction. Relying on the restitutionary principle of unjust enrichment, the breaching contractor may recover for the value of the benefit received and retained by the owner.
1 Howard W. Brill, Arkansas Law of Damages § 17:3, at 296 (5th ed.2004); accord Pickens v. Stroud, 9 Ark.App. 96, 658 S.W.2d 146 (1983). “If the defective performance, though less than ‘substantial,’ has conferred benefits on the defendant in excess of the defendant’s injury, the defendant may be under a quasi-contractual duty to pay that excess.” 8 Arthur L. Corbin, Corbin on Contracts § 36.1, at 334; see also Restatement (Second) of Contracts § 374 (1981).
As we have noted, VWR still has possession of the retainage, plus the earned-but-unpaid funds, as well as the installed pipe, manholes, force-main pipe and equipment, and pump stations. Roberts’s labor and materials have been incorporated in VWR’s easements. Roberts, therefore, should be compensated for the work it performed that benefitted VWR. See 8 Arthur L. Corbin, Corbin on Contracts § 36.11. At the conclusion of Roberts’s case, the trial court granted its motion to amend the pleadings to conform to its proof of damages, in the sum of $177,390.80. Thus, Roberts proved the amount of damages to which it would have been entitled if it had substantially performed, which did not occur. Our next question, therefore, |16must be whether Roberts’s evidence was sufficient to establish the value of the benefit received and retained by VWR. We hold that it was.
“One of the primary ways to measure the benefit to the landowner is the market value of the contractor’s labor and materials.” Dan B. Dobbs, Law of Remedies § 12:20(2), at 461 (2nd ed.1993). In some situations, an unjust enrichment award may be based upon the payment due under the contract. Citing Dobbs, our supreme court has held that, if the party against whom an unjust enrichment claim is brought has not shown that the value of the benefit conferred is less than the payment called for by the contract, the contract price is some evidence of the value of the benefit conferred, and it is not error to base the unjust enrichment award on the contract price. Woodhaven Homes, Inc. v. Kennedy Sheet Metal Co., 304 Ark. 415, 803 S.W.2d 508 (1991). This view is set forth in 8 Arthur L. Corbin, Corbin on Contracts § 36.11, at 374:
In proving the reasonable value of a part performance, the contract price or rate of payment is nearly always admissible in evidence on the issue of value. If contract price is evidence of reasonable value, then contract price less damages will not greatly differ from reasonable value less damages.
VWR failed to establish its cost-of-completion-and-repair damages at trial. It has not cross appealed the trial court’s ruling rejecting its proffered evidence on these issues. And it offered no evidence that the value of the benefit conferred by Roberts’s completed work was less than the amount billed. The trial court reasoned that Roberts should not recover because VWR would incur costs in some amount to repair and complete the system. This reason is undoubtedly true, but not dispositive. VWR failed to quantify its injury. In the absence of any proof on VWR’s side of the scale, Roberts’s contract-based proof of the reasonable value of its l17services must prevail. We therefore hold that Roberts is entitled to the value of the work it did but for which it was not paid. As Roberts proved at trial, this amount was $177,390.80.
D. Liquidated Damages
Roberts further argues that the trial court erred in awarding VWR liquidated damages as compensation for the delay. We disagree. “The general rule governing liquidated damages is that an agreement in advance of breach will be enforced if the sum named is a reasonable forecast of just compensation for the injury, if the harm is difficult or incapable of accurate estimation.” Phillips v. Ben M. Hogan Co., 267 Ark. 1104, 1108, 594 S.W.2d 39, 41 (Ark.App.1980) (citing Hall v. Weeks, 214 Ark. 703, 707, 217 S.W.2d 828, 830 (1949)). Whether a provision is actually a liquidated-damages stipulation or a penalty is a question of fact. Id.; McIlvenny v. Horton, 227 Ark. 826, 302 S.W.2d 70 (1957). In American Bank & Trust Co. v. Langston, 180 Ark. 643, 22 S.W.2d 381 (1929), the supreme court upheld a liquidated-damages provision in a contract to construct a sewer system for an improvement district because the damages were uncertain and the amount stipulated was not unreasonable. VWR introduced sufficient evidence to show that Roberts was at least partially responsible for the delay and that it quit in May 2006. Accordingly, we cannot say that the trial court erred in upholding the liquidated-damages provision. As with the SGADA-system award, VWR may offset the liquidated-damages award against the amount it owes Roberts.
V. Finality of the Judgment
In its last point, Roberts argues that paragraphs 3 and 4 of the trial court’s decision, | mwhich provided that VWR could file further actions if Roberts did not provide the SCADA system and as-built drawings, violated the principles of finality of judgments. In light of our resolution of those two issues, we need not address this argument. Installing the SCADA, partly at Roberts’s expense, is now up to VWR. And VWR no longer needs Roberts to be the conduit for the as-built drawing from Bond Consulting Engineers.
Roberts also asserts that paragraph 5 of the decision, in which the court declined to rule on final clean-up work, ran afoul of Rule 13(a) of the Arkansas Rules of Civil Procedure. This Rule requires that a pleading shall state as a counterclaim any claim, which at the time of the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim. Morsy v. Deloney, 92 Ark.App. 383, 214 S.W.3d 285 (2005). Although we agree that VWR’s claim for final clean-up work was required to be brought in a compulsory counterclaim pursuant to Rule 13(a), we see no finality problem. VWR failed to meet its burden of proof on what the final clean-up work will cost. We construe this part of the trial court’s decision as one on the merits against VWR.
VI. Cross-appeal
In its cross-appeal, VWR argues that the trial court erred by starting the liquidated-damages period too late and ending it too soon. VWR first argues that liquidated damages should have started on October 20, 2005, the last day of the only contract extension VWR says it granted, instead of May 1, 2006. We disagree. There was evidence in the record that the parties informally agreed to extend the date of completion to May 1, 2006. Josh Minton sent a letter to Brad Roberts on May 2, 2006, stating that “the deadline for completion of this 119project was May 1.... ” That date was also stated in a “punch-list” letter from Minton to Roberts as the final date that Roberts could finish numerous items that did not require power at the pump stations.
The circuit court’s decision on the end date for liquidated damages was not reversible error either. The parties’ contract specified no end date for the liquidated-damages period, perhaps because VWR and Roberts assumed that all the work would be done at some point by someone. It never was. The liquidated damages must stop accruing at some point or they will become a penalty, which our law does not allow. McIlvenny, supra. The general rule requires these damages to be a “reasonable” forecast of just compensation. Phillips, supra. And when parties omit a necessary period of time from any contract, the law implies a reasonable period of time in the contract. See generally, AMI Civ. 2423 (2006). Ending the period of liquidated damages on the date that this action was filed was reasonable. It was consistent with the policy of encouraging parties to settle their disputes in a timely manner. Unlike in the usual case, no replacement contractor was engaged to complete this job. We reject VWR’s argument that it was entitled to liquidated damages through the date of trial. When both parties shifted their energies into litigation instead of completing the sewer system, it was reasonable to stop the clock on liquidated damages. We therefore cannot say that the trial court’s findings on this issue were clearly erroneous.
VII. Conclusion
In the direct appeal, we affirm the trial court’s finding that Roberts was required to provide the SCAJDA system; award VWR $9750 for the SCADA system’s price increase; affirm |20the trial court’s finding that Roberts did not substantially perform; reverse the trial court’s denial of Roberts’s claim for $177,390.80; and affirm the trial court’s award of liquidated damages to VWR. The awards to VWR may be set off against the award to Roberts. On the cross-appeal we affirm the trial court’s determination of the reasonable period for liquidated damages. Accordingly, we remand this case for the entry of a judgment in keeping with this decision.
Affirmed in part, reversed and remanded in part, on direct appeal; affirmed on cross-appeal.
GLOVER and MARSHALL, JJ., agree.
. The contract provided that retainage would be released upon acceptance of the Certificate of Substantial Completion.
. The SCADA system electronically monitors a pump station. It does not operate it. Roberts bid $12,650 for each of the five SCADA units to be installed, for a total of $63,250.
. Though the trial court referred to Roberts’s efforts under the contract as not having "substantially completed” the project, the precedent discusses similar efforts in terms of substantial performance.
. VWR has not appealed from the trial court's ruling on its failure to establish actual damages. | [
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JIM GUNTER, Justice.
I, Appellant Stark Ligón, the Executive Director of the Office of Professional Conduct (OPC), appeals the order of the Supreme Court Committee on Professional Conduct (the Committee) finding that David Rees violated Rules 1.2(d) and 8.4(c) of the Rules of Professional Conduct (the Rules). This appeal is one of four involving David Rees, submitted to this court for decision and handed down this same day. See Ligon v. Rees, 364 S.W.3d 28, No. 09-556; Ligon v. Rees, 364 S.W.3d 7, No. 09-559; Ligon v. Rees, 364 S.W.3d 1, No. 09-560. On appeal in this case, appellant argues | ?that the Committee erred in (1) not implementing a more substantial and appropriate sanction for Rees’s misconduct, (2) failing to make findings on two alleged rule violations, and (3) finding no violation of Rule 1.5(a) in Count C.l of the complaint. Appellee David Rees cross-appeals and argues that the Committee erred in not granting his motion to dismiss for failing to prosecute in a timely manner. Because this appeal involves the discipline of attorneys, this court has jurisdiction under Ark. Sup.Ct. R. 1-2(a)(5). We affirm on direct appeal and cross-appeal.
On November 14, 2006, appellee was notified by mail that a complaint had been filed against him with the OPC in the name of a former client, Johnny Lee Ford. According to the complaint, appellee had represented Ford in 1995 on a murder charge that was tried to a jury twice and resulted in a hung jury both times. Appel-lee’s fee for this representation was $25,000, of which Ford only paid him $5,000. On March 6, 1999, Ford was injured in an automobile accident, and appel-lee agreed to represent him on a 40% contingency-fee basis. On April 23, 1999, appellee filed suit on behalf of Ford against Donald Jones and his minor son, who was driving the vehicle that struck Ford’s backhoe, and Farm Bureau made a policy-limits offer of $100,000 to settle the case. The defendant’s attorney, Bill Bris-tow, also told appellee that his client could give appellee another $25,000. Appellee encouraged Ford to go along with a scheme against his medical creditors, in which the creditors would only be told about the $100,000 recovery. Appellee and the Fords signed an undated “settle ment sheet” based on $100,000 in April 1999. The settlement showed appellee taking a fee of 38%, instead Rof 40%, and also showed appellee recovering additional fees, specifically the $20,000 from the earlier criminal case and $1500 from a custody case. Under this arrangement, the total percentage of fees that would be taken by appellee was actually 55%, which the complaint alleged was clearly unreasonable.
While appellee was representing Ford, Ford also consulted with another attorney, Kent Rubens. Ford ultimately terminated appellee’s representation, and Rubens became Ford’s attorney in the automobile-accident suit. Rubens amended the complaint to add the passenger in the car with Jones as a defendant on a joint-venture allegation. Rubens eventually negotiated a $200,000 settlement and gave appellee notice of the settlement and a hearing on September 19, 2003, at which he could pursue an attorney’s fee lien claim. Ap-pellee’s claim was for a fee lien of $32,000, but after the court found that he had no statutory fee lien on Ford’s recovery but could pursue a quantum meruit claim, ap-pellee dropped all claims to a fee on the Ford case and agreed not to appeal.
The complaint alleged violations of the following Model Rules of Professional Conduct: Rule 1.1, which requires a lawyer to provide competent representation to a client; Rule 1.2(d), which provides that a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent; Rule 1.5(a), which requires a lawyer’s fee to be reasonable; Rule 4.4, which requires that, in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person; and Rule 8.4(c), which requires that a lawyer not engage in conduct | ¿involving dishonesty, fraud, deceit, or misrepresentation. The OPC also sought costs for the investigation and hearing of the proceedings in this case, fines, and restitution.
Appellee filed a response on March 19, 2007, in which he denied any wrongdoing under the Professional Rules of Conduct. After a proposed discipline by consent, which encompassed this complaint and three other complaints, was rejected by this court on May 8, 2008, the complaint was sent to the Committee on Professional Conduct-Panel A. Appellee was notified in a letter dated July 25, 2008, that the panel found that his conduct had violated the Rules of Professional Conduct. Appellee requested a de novo public hearing, pursuant to Section 10.D.3 of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (the Procedures), on August 11, 2008. The Ford complaint, along with the three other complaints, were set for hearing on February 3-5, 2009.
On January 9, 2009, appellee filed a motion to dismiss the Ford complaint. Appellee argued that the OPC received the original complaint in this matter, filed by Kent Rubens, on or about December 9, 2003, but waited three years before filing a complaint against appellee in December 2006. Appellee argued that this delay was not justified, was prejudicial, and rendered him incapable of adequately defending himself against the charges, most notably because Rubens died in 2008, so appellee contended that he had no chance to depose or cross-examine him. Rubens was also in possession of original tape recordings between appellee and Ford, which is part of the evidence offered against appellee, and appellee intended to question Rubens regarding the authenticity, accuracy, and chain of custody of the |firecordings. Appellant responded on January 12, 2009, arguing that appellee had waived these arguments by not previously moving to dismiss in response to the complaint. Appellant also argued that appellee had failed to demonstrate any difficulty in preparing a defense and thus failed to show that any delay was prejudicial. At a prehearing conference held on January 13, 2009, the panel chairman announced that the motion would be denied “because there is no statute of limitations.” There was also some discussion of whether the Committee would announce sanctions after deliberating each case separately or would wait until all four cases had been deliberated before imposing sanctions. The chairman stated that, although it seemed logical to wait until all the cases were over to impose sanctions, it appeared that the rules required the Committee to make the sanctions decision after each case. So, unless the parties agreed otherwise, sanctions would be imposed after each case was decided. On January 28, 2009, an order was entered consolidating these rulings made in the prehearing conference.
The public hearing on the four complaints began on February 3, 2009, and the Ford complaint was the first to be heard. After hearing testimony from numerous witnesses and closing arguments from counsel, the Committee took the complaint under advisement and stated that it would reconvene in the morning to announce a decision. The next morning, February 4, 2009, it was announced that every decision was unanimous among the panelists, and that the panel had found violations only of Rules 1.2(d) and 8.4(c). The Committee also announced that it was accepting ap-pellee’s motion that the Committee not look at sanctions until after the conclusion of all four of the cases. On February 5, 2009, after all four cases had |sbeen heard, the Committee announced that the sanction in the Ford case would be a six-week suspension plus costs.
A written order was entered on February 23, 2009, in which the Committee explained that, while appellee had testified at the hearing that the purpose of the settlement sheet was to show Ford how a settlement worked, “the evidence is conclusive that the purpose of preparing the settlement sheet was to show Mr. Ford’s medical creditors, who had approximately $117,000 in liens, that only $100,000 was available for the settlement.” Thus, the Committee found that appellee had violated Rules 1.2(d) and 8.4(c), in that he advised Ford to go along with a scheme he devised by which the medical-lien claimants would be told that only $100,000 was recovered in his suit. The Committee found no violations of Rules 1.1, 1.5(a), or 4.4. The Committee ordered that appel-lee’s law license be suspended for forty-two days, effective on the date the order was filed with the Clerk of the Arkansas Supreme Court. Appellee was also ordered to pay $1,022.82 in costs for the hearing. On March 16, 2009, the OPC filed a notice of appeal, and on March 26, 2009, appellee filed a notice of cross-appeal.
Our standard of review when reviewing decisions of the Arkansas Committee on Professional Conduct is de novo review on the record, and we affirm the Committee’s actions and findings unless they are clearly erroneous. Gillaspie v. Ligon, 357 Ark. 50, 160 S.W.3d 332 (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 17mistake has been committed. Ligon v. Stewart, 369 Ark. 380, 255 S.W.3d 435 (2007). Due deference is given to the Committee’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Stilley v. Supreme Court Comm. on Prof'l Conduct, 370 Ark. 294, 259 S.W.3d 395 (2007).
For his first point on appeal, appellant asserts that the forty-two-day suspension imposed by the Committee was not appropriately or proportionately substantial or severe. Much of appellant’s argument on this point consists of short summaries of ten other attorney disciplinary actions, including one from Oklahoma, to use as a comparison. These ten other cases, in which the attorney received a more severe punishment than appellee did in the present case, involved various levels of serious misconduct and, in most cases, also involved a larger number of violations. Appellant also asks this court to consider several “aggravating factors,” including (1) an alleged conversation between appellee and Ford, in which appellee stated he was going to “kick his [Ford’s] ass,” and (2) the possible impropriety of conversations between appellee and Judge Burnett about the judge’s possible employment with him after he retired.
In response, appellee argues that we should reject appellant’s suggestion that we compare the sanction in this case to sanctions in other cases and should instead focus on the facts of the present case. Appellee also notes case law in which this court rejected such use of comparison in attorney-discipline cases. In Colvin v. Comm. on Prof'l Conduct, 309 Ark. 592, 832 S.W.2d 246 (1992), this court stated
^Appellant recognizes that, upon a finding of a violation of the Model Rules, the Committee may suspend him. He alternatively argues that, even if the Committee’s decision that he violated the rule is affirmed, it should be modified to conform to precedents established by the Committee. Without authority or convincing argument he asserts that the sanctions made public and published “in the larger state newspapers and the Arkansas Bar Journal” should be considered as precedent and applied to this case. The argument is without merit for a number of reasons. First, there is reason to question the validity of appellant’s statistics used in his argument because he uses statistics compiled from only August through October of 1989. Second, subject to certain exceptions, confidentiality of all communications, complaints, formal complaints, testimony, and evidence based upon a complaint is absolutely privileged. As a result, the facts of each Committee decision made public are not revealed or made known to this court for any consideration or determination of precedential value. Third, even if the statistics were valid, we have stated in the context of criminal law that we will not reduce or compare sentences that are imposed within statutory limits. In the civil context of damages awards, a comparison of awards made in other cases cannot be relied on as a measure of excessiveness. Thus, we reject the argument.
Id. at 594-95, 832 S.W.2d at 247-48 (internal citations omitted). See also Clark v. Supreme Court Comm. on Prof'l Conduct, 320 Ark. 597, 898 S.W.2d 446 (1995) (rejecting appellant’s argument that punishment was excessive and stating that when the Committee’s action was within the range of sanctions for a violation of a provision of the Model Rules, we affirmed the Committee’s decision). Appellee contends that, under the facts and circumstances of this case, the sanction imposed was adequate. And finally, appellee argues that appellant requested no consideration of the “aggravating factors” below and should be barred from doing so on appeal.
Section 17(E)(2) of the Procedures provides that when the Committee finds that an attorney has violated any provision of the Rules, the Committee is authorized to suspend the attorney for a period up to but not exceeding five years. We find that appellant has failed to | demonstrate that the Committee’s action of imposing a six-week sanction in this case was clearly erroneous, and pursuant to Colvin, supra, we reject appellant’s suggestion to compare this sanction with sanctions imposed in other cases. We therefore affirm the sanction imposed by the Committee as it is within the range of sanctions authorized for a violation of a provision of the Rules. See Clark, supra.
On his second point on appeal, appellant argues that eight separate counts were contained in the complaint, but the Committee only announced decisions on five of those counts. This is factually incorrect; appellant claims there is no decision on Count C.2, but the Committee clearly announced on page four of its order that it found no violation as alleged in Count C.2. Appellant is correct, however, that there was no announced decision on Counts B.2 and E.2. The Committee decided that, having found a violation of Rule 1.2(d) in Count B.l, it would not vote separately on Count B.2, and having found a violation of Rule 8.4(c) in Count E.l, it would not vote separately on Count E.2. Count B.2 alleged a violation of Rule 1.2(d) in that appellee attempted to set up a settlement on the basis of a total recovery of $100,000 for Ford in which appellee’s nonlien claims would receive preference over the general medical creditors; Count E.2 alleged a violation of Rule 8.4(c) in that appellee engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation when he attempted to set up such a settlement. Appellant suggests that, on this court’s de novo review, we should find that the above counts were proven and impose further sanctions accordingly.
Iioln response, appellee argues that appellant failed to obtain rulings on the above counts, so the argument is not preserved for our review. See Wilson v. Neal, 382 Ark. 148, 964 S.W.2d 199 (1998) (refusing to address appellant’s arguments on appeal because he did not raise them below or seek a ruling from the court in a disbarment action). After the Committee had announced its findings, appellant did not request a ruling on the above counts, inquire as to why no ruling was made, or file a motion to modify the findings or otherwise obtain a ruling. We agree with appellee that we have no ruling on this argument and, thus, find that it is not preserved for appellate review. We also note that, as appellant himself has recognized, there is no requirement in the Procedures that the Committee issue a ruling on each and every count in the complaint.
For his final point on appeal, appellant takes issue with the Committee’s ruling that there was no violation of Rule 1.5(a), which requires a lawyer’s fee to be reasonable. Appellant argues that, by charging nonrelated fees of $20,000 and $1500 in the proposed settlement agreement of Ford’s personal-injury suit, appel-lee was “improperly making his law firm a preferred creditor of Ford over the rights and financial interests of medical providers who had cared for Ford in his 1999 injury.” The fact that appellee “lowered” his fee claim to $32,000 after the case had settled “clearly” shows that his attempt to get the nonrelated fees was inappropriate and excessive under Rule 1.5(a).
In response, appellee notes that the actual sum of fees collected for all of his representations of Ford were minimal: $5,000 for two murder trials and no fee at all for his |nwork on the personal-injury case. Appellee also points to witness testimony that stated that the fees charged were reasonable and somewhat low in some cases. Appellee also argues that appellant seems to be mixing his allegations of misconduct. Appellant argues a violation of Rule 1.5(a) based on the alleged attempt to defraud a lienholder, but whether a fee is unreasonable under the rule is a determination made regarding the attorney’s conduct toward the client, irrespective of the interests of third parties.
Considering the deference given to the Committee’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony, Stilley, supra, coupled with the fact that appellee ultimately collected very little in fees from Ford, we find that appellant has failed to show that the Committee’s decision on this point was clearly erroneous. Thus, we affirm on this point.
On cross-appeal, appellee argues that it was error for the Committee to deny his motion to dismiss. Appellee acknowledges there is no statute of limitations for violations of the rules of professional conduct, but argues that where an accused suffers from prejudice from a prosecutorial delay, the action should be dismissed. Appellee bases this argument on criminal law, and specifically cites Scott v. State, 263 Ark. 669, 566 S.W.2d 737 (1978), in which this court stated
Apparently the court and the prosecutor assumed that because there is no statute of limitations for murder, charges can be filed at any time.... Just because the statute of limitations does not run on a murder charge does not mean that a person can be brought to trial at any time. The prosecution cannot delay simply for the purpose of gaining a tactical advantage over the accused.
yld. at 673-74, 566 S.W.2d at 740 (internal citations omitted). This court stated that if it could not be shown that the State had good cause for its delay in filing charges, then the charges should be dismissed, and we remanded to give the State an opportunity to explain the delay.
Appellee argues that his case parallels the Scott case. Appellant was first notified of appellee’s alleged violations in December 2003, via a letter from Kent Rubens , but the complaint was not filed until December 2006. Appellee contends that such a delay was unjustified and unduly prejudiced him. Appellant offers no explanation for the delay, and appellee was substantially prejudiced, most notably because Rubens died in November 2008, and appellee was therefore unable to cross-examine him at the hearing on these charges. Appellee argues that the delay significantly interfered with his ability to defend himself.
In response, appellant first asserts that appellee’s cross-appeal is moot because ap-pellee has already served his suspension and paid the costs imposed on him by the Committee’s order. With regard to the three-year delay in filing the complaint, appellant cites generally to the “substantial” demands on the “time, limited staff, and resources of the Office of Professional Conduct.” And, other than the Rubens matter, appellant claims that appellee makes no specific allegation of any actual prejudice. Appellant also notes that ap-pellee requested a public hearing in this matter on August 11, 2008, and Rubens did not pass away until November 2008. Appellant argues that appellee could have deposed Rubens within that |13period of time, in preparation for the hearing, but he did not do so. Appellant also asserts that the Rubens material is mostly opinion, and the substantive factual matters set out by Rubens were verified by other proof in the record.
In reply, appellee argues that appellant has still not provided a satisfactory explanation for the delay and suggests that, by timing the filing with the three other complaints, it may have been a tactic to increase the likelihood of the finding of a violation by the Committee. Appellee also reiterates that without the three-year delay, Rubens would have been required to testify before the Committee, and appellee would have had the chance to cross-examine him regarding several important matters, including (1) any bias Rubens had against appellee and (2) why Rubens told Ford to tape-record his conversations with appellee. Finally, appellee contends that his cross-appeal is not moot, because whether there was a valid sanction imposed in this case will affect the outcome of other cases, as a lawyer’s prior disciplinary record can be considered when sanctions are imposed. Appellee also notes that any finding of an ethical violation is a permanent blemish on an attorney’s record, both in the eyes of the court and the professional community.
We agree with appellee that the cross-appeal is not moot. We also find that appellee has failed to demonstrate that the Committee’s denial of his motion to dismiss was clearly erroneous, and specifically, that appellee failed to show any prejudice in the delay to the extent that it was reversible error not to dismiss. Therefore, we affirm on this point.
Affirmed on direct appeal; affirmed on cross-appeal.
BROWN, J., concurs.
. All references to the Rules herein refer to the rules in effect in 2003, as an attorney can only be charged with violating a rule that was in effect at the time of the alleged misconduct. Sexton v. Supreme Court Comm. on Prof'l Conduct, 295 Ark. 141, 747 S.W.2d 94 (1988). We note that the 2003 versions of Rules 1.2(d) and 8.4(c) are identical to the 2009 versions.
. This original 2003 letter is not a part of the record; however, Rubens references this letter in his 2006 affidavit, which is part of the record. | [
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ROBERT J. GLADWIN, Judge.
11Appellant Bobby Ayers appeals the June 22, 2009 decision of the Arkansas Workers’ Compensation Commission finding that Ayers failed to prove that he sustained a compensable injury to his lumbar spine. On appeal, Ayers contends that the Commission’s decision is not supported by substantial evidence. We affirm.
Statement of Facts
At the hearing before the Administrative Law Judge, Ayers contended that he sustained a compensable lumbar-spine injury on July 30, 2007, and underwent spine surgery at the Veteran’s Administration Hospital in Little Rock, Arkansas, on January 22, 2008. He claimed that Domtar Industries and Liberty Mutual Insurance (Domtar) should pay for that surgery. He also claimed that he was entitled to temporary-total-disability benefits from November 5, 2007, to a date to be determined, all associated medical benefits, and attorney’s fees. He | ¡.argued that Domtar would not be entitled to an offset under Arkansas Code Annotated section 11-9-411 (Supp. 2009).
Domtar contended at the full hearing that Ayers first reported a pop in his mid-to-upper back; that he was then treated and released for that condition and later went to the VA Hospital and had surgery at a different location on his back; that Ayers’s condition was not the result of an injury at work but was a low-back condition degenerative in nature and preexisting. Domtar contended that, should the claim be found compensable, it would be entitled to an offset for the payments now coming from the VA.to Ayers pursuant to Arkansas Code Annotated section 11-9-411.
Ayers, age thirty, testified that he served in the Marine Corps for approximately four years after high school and then received an honorable discharge. While in the Marine Corps he developed problems with his low back:
Q Now, you also testified that during the time that you were in the Marines you developed some physical problems that were not the result of a specific injury but just — you started to have back problems, correct?
A Yes.
Q Did you receive any kind of back treatment while you were in the service?
A Yes.
Q And was that at the L5-S1 level of your back?
A Yes.
Q And did you have an MRI done or any kind of diagnostic testing while you were in Hawaii?
|SA Yes.
Q' And do you know what the results of the testing were?
A I believe they said it was a bulging disc.
Q At that level that we spoke of?
A Yes, L5-S1.
Q Did you receive any kind of treatment like therapy or injections for that?
A Yes.
Q Did you have access to medical treatment while in Hawaii?
A Yes.
Ayers qualified for a service-related disability of forty percent awarded for problems with his back, knee, and stomach. As a result of his forty-percent disability from the military, he started receiving, and still receives, $1,136.00 per month from the VA. After leaving the military in 2000, he took some time off work and then worked for some construction companies and worked for the Sevier County Road Department before going to work for Domtar Industries sometime in 2002. The parties stipulated that Ayers sustained a compensable thoracic-spine injury on July 30, 2007, and Ayers testified as follows regarding the incident that lead to his stipulated compen-sable thoracic-spine injury:
Q What happened on that day that would cause you to feel like you injured yourself?
A Well, I had to push a roll into a machine and I had already pushed in six — no, five rolls. On the sixth one, it’s in the very back and you don’t have anywhere to put your foot or nothing against, you’ve just got to kind of push it in. [4When I pushed it in, something popped in my back.
Ayers claimed that the same incident that caused his compensable thoracic-spine injury also caused him to have a compensable lumbar-spine injury. Dom-tar controverted the lumbar-spine injury in its entirety.
Ayers testified that in the weeks prior to July 30, 2007, he reported to a VA doctor at the Texarkana Clinic with complaints about his low back. As a result of his encounter with the VA doctor, he was prescribed muscle relaxers. He testified that between his appointment at the VA sometime in July of 2007, and July 30, 2007, he was taking muscle relaxers for his low back.
On August 16, 2007, Ayers underwent an MRI of the lumbar spine on the orders of neurologist Dr. Steven Cathey. Dr. Joseph Robbins read Ayers’s August 16, 2007 lumbar-spine MRI and opined the following:
Subligamentous protrusion at the L5-S1 level which, combined with the right fa-cette hypertrophy, causes primarily mild to moderate right L5 foraminal narrowing. There is no severe root impinge ment or significant encroachment upon the thecal sac. No acute disk extrusion.
Dr. Cathey did not recommend surgery, but prescribed physical therapy. Dr. Cathey released Ayers for work on November 5, 2007. Ayers then went to Dr. Dennis McDonnell, who performed surgery at L5-S1 on January 22, 2008. When Ayers continued to complain, McDonnell recommended that Ayers might benefit from another surgery at L5-S1.
The Administrative Law Judge found as follows:
It is clear to this examiner that the L5-S1 disc protrusion opined by Dr. Robbins is |fimarkedly similar to the L5-S1 “bulge” that the claimant testified he had while in the Marine Corps. Once again, the claimant testified that his L5-S1 bulge was confirmed by MRI while he was in the military and as a result combined with other conditions which lead to his 40% disability compensation he now receives from the Veterans Administration.
It is clear to this examiner that the claimant had a preexisting problem at L5-S1 level for several years prior to working for Domtar and that it is equally as clear that the claimant continued to have those problems immediately up to July 30, 2007. The claimant’s preexisting lumbar back condition was such a problem that the claimant had to seek medical treatment mere days prior to the July 30, 2007, incident where the claimant sustained a stipulated thoracic spine injury.
In making my determination that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable lumbar spine injury on July 30, 2007, I do not disregard Heritage Baptist Temple v. Robinson, 82 Ark.App. 460, 120 S.W.3d 152 [150] (2003), which states that employment circumstances that aggravate preexisting conditions are compensable. I simply do not find that the claimant aggravated his preexisting lumbar back condition. The medical evidence does not support any objective medical finding of any new injury, or aggravation to the claimant’s preexisting lumbar back condition as required under our Act. The only objective findings relate to preexisting conditions without evidence of new injury. Therefore, I find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable lumbar spine injury while working for Domtar Industries on July 30, 2007. The claimant has the burden of proving the job relatedness of an alleged injury, and in this case the claimant has failed to meet his burden.
The Commission affirmed and adopted the decision of the ALJ. This appeal followed.
Standard of Review
Typically, on appeal to this court, we review only the decision of the Commission, not that of the ALJ. Daniels v. Affiliated Foods Sw., 70 Ark.App. 319, 17 S.W.3d 817 (2000). In this case, the Commission affirmed and adopted the ALJ’s opinion as its own, which it is permitted to do under Arkansas law. See Death & Perm. Total Disab. Trust Fund v. Branum, 82 Ark.App. 338, 107 S.W.3d 876 (2003). Moreover, in so doing, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. Branum, supra. Therefore, for purposes of our review, we consider both the ALJ’s order and the Commission’s majority order.
Our court set forth our well-settled standard of review in workers’ com pensation cases in Neal v. Sparks Regional Medical Center, 104 Ark.App. 97, 101-02, 289 S.W.3d 163, 167 (2008) (citations omitted):
When reviewing a decision of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm. Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. A substantial basis exists if fair-minded persons could reach the same conclusion when considering the same facts.
Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission, and when there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief.
Discussion
Appellant contends that the Commission failed to consider the objective-medical 17finding of his diminished right-ankle reflex. He claims that Dr. Cathey and Dr. McDonnell both diagnosed him as having an absent right-ankle jerk reflex. Further, he claims that his MRI done in November 2007, at the VA indicated the presence of an extruded fragment of disc material from the L5-S1 disc that had broken off, was impinging on the thecal sac, and was migrating downward. He contends that these new objective findings were not considered by the Commission. He argues that once those objective findings were established, the Commission can appropriately consider the non-medical evidence of his subjective complaints of increased symptoms pursuant to Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).
He claims that the evidence is clear that he sustained an aggravation of his preexisting lumbar-spine condition while at work on July 30, 2007. He cites Oliver v. Guardsmark, 68 Ark.App. 24, 3 S.W.3d 336 (1999), for the proposition that an aggravation of a non-eompensable condition by a compensable injury is itself compen-sable. Further, he contends that an aggravation is a new injury resulting from an independent incident. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). Finally, he claims that the Commission’s failure to discuss his improvement following the surgery is in error. See Hill v. Baptist Medical Ctr., 74 Ark.App. 250, 57 S.W.3d 735 (2001).
In upholding the Commission’s decision, we point out that Dr. Cathey notes the lack of right-ankle reflex, but further opines that “I suspect this is an old finding in view of the fact that straight leg raising is negative bilaterally.” There was nothing before the |8Commission to indicate that the injury Ayers received was caused or aggravated by the compensable injury he received. The fact that appellant was on medication for his lower back at the time of the injury, coupled with Dr. Cath-ey’s recommendation, constitutes substan tial evidence that appellant did not receive a compensable injury to his lower back on July 30, 2007. Therefore, the Commission had before it substantial evidence to deny Ayers’s claim, and accordingly, we affirm.
Affirmed.
HART and BROWN, JJ., agree. | [
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RITA W. GRUBER, Judge.
11 This lawsuit is about a dispute over the ownership of a .849-acre parcel of land in Union County. Appellant Rex Thurlkill, the record owner of the property, appeals from an order of the Union County Circuit Court quieting title to the property in ap-pellees Nancy Webb Wood, Trustee of the Wood Family Irrevocable Trust, and The-lon Wood (the ‘Woods”). The circuit court found that an old fence line — located approximately 164 feet east of the boundary described by Mr. Thurlkill’s deed — had become the boundary by acquiescence between the parties. We find no dear error and affirm the circuit court’s order.
Mr. Thurlkill is the record owner of land in Union County, more particularly described as follows:
All that portion of the Northwest Quarter of the Northwest Quarter of the Northwest Quarter of Section 2, Township 19 South, Range 15 West, Union County, Arkansas, lying West of Iron Mountain Road, LESS AND EXCEPT the South 15.0 acres, being 8.466 acres more or less.
12Mr. Thurlkill acquired the property in 1992 from his father, Percy, who had operated a grocery store on the property since 1954. When Mr. Thurlkill took over the property in 1992, he rebuilt the old store and continued to operate it.
The Woods own the fifteen acres directly south of Mr. Thurlkill’s property, excluded in the description set forth above. They also own forty acres west of Mr. Thurlkfll’s property. Thus, they share common boundaries on the south and west sides of Mr. Thurlkill’s land. The dispute in this case is over Mr. Thurlkill’s western boundary line and the Woods’ eastern boundary line.
Mr. Thurlkill filed a complaint seeking to quiet title in the disputed property based on his record ownership. The Woods responded and filed a counterclaim seeking to quiet title in the same property under the theories of adverse possession and boundary by acquiescence. After a bench trial, the circuit court entered judgment dismissing with prejudice Mr. Thurl-kill’s complaint and granting the Woods’ counterclaim for quiet title under the theory of boundary by acquiescence. Mr. Thurlkill filed this appeal.
An action to quiet title sounds in equity. Putman v. Cox, 2009 Ark.App. 304, at 1, 2009 WL 1076825 (citing Walker v. Peay, 22 Ark. 103 (1860)). We review matters that sound in equity de novo on the record with respect to questions of both law and fact, but we will not reverse a trial court’s fact findings unless they are clearly erroneous. Id. (citing Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003)). A finding of fact by a trial court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court 13viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Ward v. Adams, 66 Ark.App. 208, 210, 989 S.W.2d 550, 551 (1999). In reviewing a trial court’s findings of fact, the appellate courts give due deference to the trial court’s superior position to determine witness credibility and the weight to be accorded their testimony. Steele v. Blankenship, 2010 Ark. App. 86, 377 S.W.3d 293.
Mr. Thurlkill challenges the circuit court’s finding on appeal, contending that there was insufficient evidence to prove mutual recognition of a boundary by acquiescence. He argues that there was no intent or agreement regarding the boundary suggested by the Woods and that the fence, which Mr. Thurlkill contends never existed, does not exist today.
Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and thus apparently consent to that line, it becomes the boundary by acquiescence. Myers v. Yingling, 372 Ark. 523, 527, 279 S.W.3d 83, 87 (2008). A boundary line by acquiescence is inferred from the landowners’ conduct over many years implying the existence of an agreement about the location of the boundary line; in such circumstances, the adjoining owners and their grantees are precluded from claiming that the boundary so recognized and acquiesced in is not the true one, although it may not be. Id. A boundary line by acquiescence may exist without the necessity of a prior dispute. Harris v. Robertson, 306 Ark. 258, 813 S.W.2d 252 (1991). Although neither the mere existence of a fence nor one party’s subjective belief that a fence is the boundary line will sustain a finding of acquiescence, express recognition or agreement between the parties is not necessary. Boyster v. Shoemake, 101 Ark.App. 148, 152, 272 S.W.3d 139, 143 (2008). Tacit acceptance |4will suffice, and silent acquiescence is sufficient where mutual recognition of the boundary line can be inferred from the conduct of the parties over a period of years. Id.
Two surveyors, Chris de France and Samuel Paulus, testified that the origin of the mistaken boundary in this case is an anomaly in the General Land Office Plat filed in 1845. Mr. Thurlkill’s northern boundary line, running east and west, is not only a section and quarter line but is also part of a line separating Township 19 South from its adjacent unit to the north, Township 18 South. The east and west sides of these township blocks are formed by range lines running north and south and spaced at even intervals from the fifth principal meridian. Due to the curvature of the earth, however, range lines converge as they run north, and thus the distance between the lines decreases. To make up for this decrease, the east-west township lines must be shortened, or offset, in order to. fit the same number of sections and quarters into the smaller space. This causes certain sections to have less than the standard 640 acres. The offset in the lines and corners and the length of the offsets are noted in the 1845 government plat, entered as an exhibit at the hearing. Important to this case, when such an offset is made, the section and quarter lines do not share common corners with the adjacent sections and quarters to the north or south, which results in an offset corner.
The government plat and Mr. de France’s survey indicate that an offset of 164.12 feet to the east from Mr. Thurlkill’s northwest corner to the southwest corner of the adjacent tract to the north in Township 18 South exists. The owner of the north tract in Township 18 South is Guy Webb, who marked his corner with a tall four-inch pipe and ran his fences north, west, and east from that corner. Unaware of the offset and in the mistaken belief that |fiMr. Webb’s southwest corner was also a common corner among these parties — that is, Mr. Thurlkill’s northwest corner and the Woods’ northeast corner — the Woods and their predecessors ran their fence south from that tall pipe, or offset corner. Thus, the fence was not on the record boundary line but rather 164.12 feet east of the record boundary line. But neither of the parties in this case was aware of the 164 — foot offset long established by the government plat.
Appellee Nancy Wood testified that in 1926 her father-in-law, Benjamin Franklin Wood, purchased 40 acres west of what is now Mr. Thurlkill’s property. Until 1971, he lived on the property and used it for farm land and to raise timber. Nancy married Benjamin’s son, Thelon, in 1953, and the 40 acres was eventually conveyed to the Wood Family Irrevocable Trust. Thelon purchased 15 acres due south of Mr. Thurlkill’s property in 1957, which was also eventually conveyed to the Wood Family Irrevocable Trust.
Nancy testified that she remembered a fence on the disputed boundary line being in existence in 1953 and remembered helping the Wood family harvest corn from a field right next to the fence. The disputed area was terraced for farming at that time under a contract between Benjamin Wood and the Union County Soil Conservation District, which required Benjamin to adjust terraces to meet district specifications. In the late 1950s, Benjamin planted pine trees on the disputed property through a program with the U.S. Department of Agriculture. The Woods introduced receipts to show that they harvested timber on the property in 1986, 1995, 1996, and 1999. And photographs showed rotting stumps on the disputed tract.
| (¡Guy Webb testified that a fence had run south, between the Woods and Thuri-kill tracts, from the tall four-inch pipe since at least the 1960s. He said it was a net wire fence and looked as if it had been there for some time when he first saw it in 1960 or '61. He said there were terraces on the Woods’ side of the fence.
A tornado in 2005 destroyed part of the fence. Keith Jolly testified that in 2005 he harvested some damaged trees near the corner of the Webb, Wood, Thurlkill tracts. He said there was a fence running north and south from the Webb property to a tall pole, the four — inch pole, and that the fence continued south between the Wood and Thurlkill properties. He flagged the old fence row — which he testified was “fairly easy” to find in the trees— between the Wood and Thurlkill tracts and paid Mr. Thurlkill for the trees on his side of the fence. Mr. Jolly testified that, when he delivered the check to Mr. Thurlkill, Mr. Thurlkill said he did not know he had any timber back there.
Mr. Thurlkill denied that there was ever a fence and testified that the twelve-to-fourteen foot fence from the tall pole was just to stop the four-wheelers from getting on his property. He testified that he was paid for timber harvested on the property after the tornado as record owner of the property. He also testified that the Woods never harvested timber from his land and Mr. Thurlkill claimed that his father had timber harvested in 1987 or 1988, but there were no receipts to prove it.
The circuit court found by a preponderance of the evidence that the parties and their predecessors had occupied their respective tracts based on their mistaken belief that the tall four-inch pipe corner was their common corner. Only after recent surveys revealed the |7mistake did Mr. Thurlkill object to the location of the boundary line. Accordingly, the circuit court quieted title in the Woods to the disputed property under the theory of boundary by acquiescence. After a de novo review of all the evidence in this case — including the 1845 government plat, the surveys, and the testimony of the parties and various neighbors — we cannot say that the circuit judge clearly erred in this finding, and we affirm the court’s judgment.
Affirmed.
MARSHALL and BAKER, JJ., agree. | [
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ROBERT J. GLADWIN, Judge.
| Appellant Steven Washington appeals his conviction by a Jefferson County Circuit Court on charges of breaking or entering, theft of property, and battery in the second degree, for which he was sentenced to five years’ probation, fines, and community service. He challenges the sufficiency of the evidence supporting the convictions and also argues that he was justified in using force to stop the repossession of his automobile. We affirm.
Facts
On July 15, 2008, appellant was at his residence, the Crown Inn Motel, located at the intersection of Fifth and Walnut in Pine Bluff, Arkansas. On that date, Shelby Lee Ward, a repossession agent for Central Arkansas Recovery, attempted to repossess appellant’s maroon Jeep from that location. Appellant protested the repossession, and evidence indicates that appellant came out of the motel room and was “screaming and cussing and hollering” at Mr. | ¡Ward. Appellant then opened the passenger-side door of the tow truck and jerked Mr. Ward’s keys out of the vehicle. Upon discovering that he was unable to remove the Jeep from the lift, appellant approached and struck Mr. Ward several times on the hand and arm with a “Club” brand steering wheel theft-protection device.
An information was filed on August 27, 2008, alleging that appellant committed the following offenses: breaking or entering, in violation of Arkansas Code Annotated section 5 — 39—202(a) (1) (Repl.2006), by breaking into the tow truck; theft of property with a value of $500 or less, in violation of Arkansas Code Annotated section 5-36-103(a)(l) (Supp.2007), by knowingly taking unauthorized control over the tow-truck keys with the purpose of depriving Mr. Ward thereof; and battery in the second degree, in violation of Arkansas Code Annotated section 5-13-202(a)(2) (Supp. 2007), by, with the purpose of causing physical injury to another person, causing physical injury to Mr. Ward by means of a deadly weapon other than a firearm.
A bench trial was held on May 6, 2009, during which Mr. Ward testified to the events. Joe Spadoni, Mr. Ward’s stepson and owner of Foster Towing and Central Arkansas Recovery, also testified for the State. He responded to the incident after receiving calls about appellant’s actions. Officer Greg Will of the Pine Bluff Police Department was the final witness in the State’s case in chief. He testified regarding his response to the scene of the incident, including appellant’s initial denial that he had Mr. Ward’s keys as well as his subsequent admission and recovery of the keys from, or near, a trash can in appellant’s room |son the third floor of the motel. At the conclusion of his testimony, the State rested. Appellant’s counsel moved for directed verdict on all three counts, which were denied by the circuit court.
Appellant then testified on his own behalf. He testified that Mr. Ward did not identify himself and that he was simply attempting to get his belongings out of the back of the truck. He denied yelling and cussing at Mr. Ward and claimed to have hit the end of the truck with the Club rather than striking Mr. Ward. He acknowledged reaching into the tow truck, taking the keys, and putting them into his pocket, but claimed that he never left Mr. Ward’s presence with the keys.
At the conclusion of appellant’s testimony, his counsel rested and renewed the motions for directed verdict on the same grounds. Additionally, counsel asked the circuit court to consider the affirmative defense, actually a justification defense, for the use of physical force in defense of premises or property or to prevent or terminate the commission or attempted commission of a criminal trespass, pursuant to Arkansas Code Annotated section 5-2-608 (Supp.2007). The motion was again denied.
The circuit court found appellant guilty on all three counts, specifically finding that appellant’s testimony was “somewhat unbelievable.” Appellant was sentenced as previously set forth, and the judgment was entered on May 27, 2009. Appellant filed a timely notice of appeal on June 15, 2009, and this appeal followed.
I. Sufficiency of the Evidence
U(A) Standard of Review
When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. White v. State, 98 Ark.App. 366, 255 S.W.3d 881 (2007). Only evidence supporting the verdict will be considered. Id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Graham v. State, 365 Ark. 274, 229 S.W.3d 30 (2006). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Credibility determinations are made by the trier of fact, who is free to believe the prosecution’s version of events rather than the defendant’s. See Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001).
(B) Discussion
Arkansas Code Annotated section 5-39-202(a)(l) provides that a person commits the offense of breaking or entering if for the purpose of committing a theft or felony he or she breaks or enters into any building, structure, or vehicle. Regarding theft of property, Arkansas Code Annotated section 5 — 36—103(a)(i) provides that a person commits theft of property if he or she knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner of the property. Additionally, Arkansas Code Annotated section 5-13-202(a)(2) deals with battery in the second degree and provides in pertinent part that a person commits battery in the second degree if, with the purpose of causing physical injury 1sto another person, the person causes physical injury to any person by means of a deadly weapon other than a firearm.
Appellant argues that the circuit court erred in denying his motions for directed verdict because the State failed to present sufficient evidence to establish the necessary elements for the three offenses charged. He focuses on his intent at the time of the incident as he recounts the facts from his perspective. Appellant points out that Mr. Ward acknowledged at trial that at the time appellant was yelling, cussing, and grabbing the tow-truck keys out of the ignition, appellant “could have been” indicating that the vehicle belonged to him. Appellant also submits that Mr. Ward knew that appellant had the keys to the maroon Jeep he was attempting to tow because he saw appellant get into the vehicle and start it in an attempt to remove it from the tow-truck lift. Appellant also construes Mr. Ward’s testimony to indicate that he was aware that, if someone comes out and claims ownership of the vehicle being towed, he is required to leave and attempt the repossession at a later time if there is a chance the peace would be breached.
Appellant challenges the State’s contention that it was his intent to enter the truck belonging to Central Arkansas Recovery and remove the keys from inside in order to deprive Mr. Ward of those keys and, consequently, use of the truck. He argues that the State’s theory has no basis in reality and maintains that the only reasonable conclusion that can be drawn from the facts is that he entered the truck and removed the keys in an attempt to stop Mr. Ward from repossessing his Jeep. He suggests that, even if one could draw the conclusion that | fihe entered the truck and removed the keys for the purpose of depriving Mr. Ward of his property, two equally reasonable conclusions exist; accordingly, the fact-finder was left to speculate in deciding the case. Appellant asserts that this renders the proof insufficient to sustain the convictions for both breaking or entering and theft of property.
Appellant’s argument fails because it does not address whether he committed the offenses of breaking or entering and theft of property, only whether he was justified in committing them. Based upon the record before us, there was substantial evidence presented from which the circuit court could determine that appellant, for the purpose of committing a theft or felony, broke into Mr. Ward’s vehicle. Substantial evidence also exists to support the finding that appellant knowingly took and exercised unauthorized control over Mr. Ward’s tow-truck keys with the purpose of depriving Mr. Ward of them.
As to the second-degree battery charge, appellant notes that Mr. Ward testified that, when appellant was swinging the Club at him, Mr. Ward was attempting to prevent appellant from letting the Jeep down from the tow-truck lift. Appellant submits that two equally reasonable conclusions can be drawn from the facts: (1) appellant’s intent was to cause physical injury to Mr. Ward; or (2) appellant’s intent simply was to get his Jeep off of the tow-truck lift and stop Mr. Ward from repossessing it. He asserts that the State failed in its evidentiary burden and that the battery conviction should be reversed.
The State correctly indicates that this court does not apply the “no other reasonable inference” standard as part of the appellate review. With regard to the credibility of witnesses |7and inconsistencies in witness testimony, it is the province of the circuit court, not the appellate court, to evaluate witness credibility and to resolve any conflicts in the evidence. Resolution of conflicts in testimony and assessment of witness credibility is for the finder of fact. Loy v. State, 88 Ark.App. 91, 195 S.W.3d 370 (2004). The circuit judge determined that there were not two equally reasonable conclusions, specifically finding appellant’s testimony “somewhat unbelievable.” Clearly, she credited Mr. Ward’s version of the events. In this case, the trial court, as the finder of fact, found the testimony of the State’s witnesses to be more credible than the testimony of appellant and resolved any conflicts in the testimony in the State’s favor; this court is bound by these determinations.
Considering the evidence that supports the verdict, including appellant’s eventual equivocation as to whether he struck Mr. Ward — “To my knowledge, I did not hit him. I never intended to hit him” — we hold that there was substantial evidence presented to support the circuit court’s determination that, with the purpose of causing physical injury to Mr. Ward, appellant caused physical injury to Mr. Ward by means of a deadly weapon other than a firearm, specifically, the metal Club.
We affirm on this point as to all three counts.
II. Justification in Use of Force
|sArkansas Code Annotated section 5-2-608(a) covers the defense of premises justification, and provides that a person in lawful possession or control of premises or a vehicle is justified in using non deadly physical force upon another person when and to the extent that the person reasonably believes the use of non deadly physical force is necessary to prevent or terminate the commission or attempted commission of a criminal trespass by the other person in or upon the premises or vehicle. Appellant states that it is undisputed that Mr. Ward appeared at the motel where appellant was living and attempted to repossess the maroon Jeep owned by appellant.
He cites Manhattan Credit Co. v. Brewer, 232 Ark. 976, 341 S.W.2d 765 (1961), in which our supreme court stated that a conditional seller’s right to possession of the goods sold on default of the buyer may be exercised without recourse to the courts by retaking possession provided it can be done peaceably. In Brewer, the owners had their vehicle repossessed from their home after specifically informing the repossession agent that they protested. The agent took the vehicle to a nearby gas station, and the Brewers followed him, with Mr. Brewer reaching in the repossession agent’s truck and turning off the ignition. The court determined that this protest was sufficient to uphold a verdict of conversion in favor of the Brewers. The supreme court also noted in that case that the Brewers clearly could not have pre vented the agent from driving away with their automobile without having to exercise force to prevent it.
IsAppellant maintains that the testimony from both Mr. Ward and him supports the use of force employed by him to prevent the conversion and trespass of his property — the maroon Jeep. Under these circumstances, as in Brewer, appellant submits that he was justified in using non deadly force to stop the attempted repossession.
The circuit court specifically found that, because appellant’s version of the events was unbelievable, appellant did not have a justification defense. The State submits that because any reasonable person would, and the circuit judge indicated that appellant did in fact, realize that Mr. Ward was acting on behalf of a repossession agency, he could not have been acting on a reasonable belief that he was preventing a criminal trespass. See, e.g., Oaklawn Bank v. Baldwin, 289 Ark. 79, 709 S.W.2d 91 (1986) (holding that generally, it is not a violation of Arkansas law to repossess a vehicle from the driveway of an owner as long as it can be accomplished without a breach of the peace). We agree.
Regarding appellant’s reliance on Brewer, the facts are distinguishable from the instant case. There, the repossessor responded to the Brewers’ actions by turning the ignition back on, which started the motor, and beginning to back out of the gas station, causing Mr. Brewer to have to get out of the way. Additionally, the agent then drove away with the automobile. The supreme court held that a repossession could amount to a conversion when accompanied by force or threats of force. Brewer, supra. There is no evidence before us to indicate that Mr. Ward similarly used force against appellant or threatened appellant with force. The record contains substantial evidence to support the circuit court’s determination that appellant |10committed second-degree battery against Mr. Ward and that he was not justified in using physical force in this situation.
Affirmed.
HENRY and BROWN, JJ., agree. | [
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JOSEPHINE LINKER HART, Justice.
hThe State of Arkansas appeals from an October 20, 2013 Pulaski County Circuit Court order dismissing second-degree battery and second-degree assault charges that were pending against Derrick Lamont Thomas. The charges arose from an April 6, 2011 incident at the Arkansas State Hospital, where Thomas had been committed for a mental evaluation by court order in a separate criminal case. These charges involved the doctor who was conducting the mental evaluation and a security guard employed by the State Hospital. Although the charges had been filed on May 2, 2011, in August 2011, the circuit court suspended proceedings pending a mental-health evaluation. Despite Thomas’s initial lack of cooperation, on May 31, 2012, the State Hospital determined that he was unfit to proceed to trial on the battery charges. On appeal, the State argues that the circuit court’s dismissal of the battery charges violated Arkansas Code Annotated section 5 — 2—810(c)(2) (Supp.2011), 12and the separation-of-powers doctrine.
At the hearing on Thomas’s motion to dismiss the battery charges, Dr. Mark Peacock, a forensic psychiatrist and member of the UAMS faculty, testified that he had been tasked with conducting a pretrial mental evaluation of Thomas. He noted that Thomas had a lengthy history of involvement with the criminal-justice system and the mental-health establishment. Dr. Peacock diagnosed Thomas with paranoid schizophrenia and intermittent-explosive disorder. He opined that Thomas was not fit to stand trial because he was unable to understand the criminal proceedings or effectively assist his trial counsel in his defense. Dr. Peacock “deferred” answering the question of whether Thomas was legally responsible for his conduct at the time he committed the offenses. Nonetheless, Dr. Peacock did not believe that Thomas could be restored to competency.
Thomas concluded his case with the testimony of Nicholas Ward, Thomas’s therapist at Dayspring, an inpatient mental-health facility. According to Ward, Thomas was placed at Dayspring pursuant to a five-year civil commitment entered in 2009. Ward opined that Thomas was unfit to stand trial because he could not effectively assist his attorney with his defense. He specifically noted that Thomas was unable to consistently describe the incident that caused the charges to be filed.
The State presented no evidence. Arguments of both Thomas’s counsel and of the State focused primarily on the circuit court’s authority to grant Thomas’s motion to dismiss pursuant to section 5-2-310(c)(2). The posthearing briefs request ed by the circuit court addressed this point of contention. On October 30, 2018, the circuit court dismissed the | ¡¡battery charges. On November 22, 2013, the State filed a motion to reconsider. In addition to its contention that dismissing the charges violated Arkansas Code Annotated section 5 — 2—310(c)(2), the State asserted that the circuit court’s dismissal of the charges violated the separation-of-powers doctrine. The circuit court did not act on the motion to reconsider. On November 27, 2013, the State filed a notice of appeal in which it asserted that it was appealing the dismissal order.
As a threshold matter, we consider whether the State has properly brought its appeal pursuant to Ark. R.App. P.-Crim. 3 (2007). This court decides appeals brought by the State in criminal cases only when the issue is “narrow in scope” and involves the interpretation of law. State v. Cherry, 2014 Ark. 194, 2014 WL 1776015. We do not permit State appeals merely to demonstrate the fact that the circuit court erred. Id. We dismiss appeals that do not present an issue of interpretation of the criminal rules with widespread ramifications, or those appeals where the resolution of the issue turns on the facts unique to the case or involve a mixed question of law and fact. Id. Likewise, we dismiss appeals that only raise an issue of the application, not interpretation, of a criminal rule or statutory provision if it does not involve the correct and uniform administration of the criminal law. Id. The issue before us is one of statutory interpretation. Moreover, there are no disputed facts; the allegation of circuit court error is solely a matter of law. Also, because this case does not turn on idiosyncratic facts, our decision is potentially one of widespread application. See State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992). Thus we hold that this is a proper State appeal.
On appeal, the State argues that the circuit court’s dismissal of the battery charges |4vioIated Arkansas Code Annotated section 5-2-310(c)(2) and the separation-of-powers doctrine. It acknowledges that under section 5-2-310(c)(2), a circuit court has the statutory authority to dismiss criminal charges pending against a defendant who was previously found to be incompetent to stand trial; however, the plain language of the statute so empowers the circuit court to dismiss the charges only after the court determines that the defendant has regained fitness to proceed. The circuit court erred in this case because there was no requisite finding that Thomas had regained competence to stand trial. We find this argument to be compelling.
On appeal, we consider statutory interpretation de novo and give no deference to the circuit court’s interpretation. State v. Martin, 2012 Ark. 191, 2012 WL 1548076. The first rule of statutory construction is to construe a statute just as it reads, giving the words their ordinary and usually accepted meaning. Smith v. Simes, 2013 Ark. 477, 430 S.W.3d 690. In construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. State v. Colvin, 2013 Ark. 203, 427 S.W.3d 635. Statutes relating to the same subject must be construed together and in harmony, if possible. Id.
Arkansas Code Annotated section 5-2-310 is found in the chapter of our criminal code entitled “Principles of Criminal Liability.” It is in the subchapter entitled “Mental Disease or Defect.” Also in that subchapter is section 5-2-302, entitled “Lack of fitness to proceed generally,” which proscribes proceeding against a criminal defendant who is incapable of un derstanding a proceeding or effectively assisting his or her defense counsel. | ^Subparagraph (b) of section 5-2-302 likewise forbids a circuit court from acquitting such an unfit defendant.
Section 5-2-310, entitled “Lack of fitness to proceed — Procedures sdbsequent to finding,” gives a circuit court various powers to deal with a criminal defendant who has been found unfit to stand trial, including releasing the defendant if he is not a threat to himself oh others. However, nowhere in this section is a circuit court given the authority to dismiss charges against an unfit defendant. Id. In the case before us, the circuit court invoked subparagraph (c) as authority to dismiss the charges against Thomas. This was error.
The plain language of section 5 — 2—310(c) states:
(c)(1) On the court’s own motion or upon application of the department, the prosecuting attorney, or the defendant, and after a hearing if a hearing is requested, if the court determines that the defendant has regained fitness to proceed, the criminal proceeding shall be resumed.
(2) However, if the court is of the view that so much time has elapsed since the alleged commission of the offense in question that it would be unjust to resume the criminal proceeding, the court may dismiss the charge.
The plain language of subparagraph (c) involves only the situation in which a criminal defendant has regained his or her fitness to stand trial. Such was the case in Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992), the primary case relied on by Thomas at the circuit court hearing. Mauppin is therefore clearly inapplicable to the case before us and was not cited in Thomas’s brief on appeal. Here, there was no evidence that Thomas had become competent to stand trial. In fact, Dr. Peacock opined that Thomas would not regain competence. Accordingly, the circuit court was not confronted by a situation in which lfiCriminal proceedings against Thomas were expected to be resumed.
Subparagraph (c)(1) establishes the due-process requirements for restarting a criminal proceeding after a defendant has been found incompetent to stand trial. It is only after the circuit court has found that a defendant has “regained fitness” that criminal proceedings may be resumed. Id. At that point the circuit court is empowered by subparagraph (c)(2) to abort the resumption of proceedings in the interest of justice. Having determined that the circuit court improperly construed Arkansas Code Annotated section 5-2-310(c), we reverse and remand this case for further proceedings consistent with this opinion. Having found merit in the State’s statutory-construction argument, we find it unnecessary to consider the State’s separation-of-powers argument.
Reversed and remanded. | [
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WAYMOND M. BROWN, Judge.
[[Appellant Maurice Higgins appeals the February 10, 2009 corrected and substituted order of the Pulaski County Circuit Court finding that a constructive trust should be placed on the property located at 14416 West Baseline Road. Appellant argues that appellee lacked standing to bring the lawsuit, that the issue of constructive trust is barred by laches, and that the evidence did not meet the burden of proof of full, clear and convincing evidence as required in a constructive trust involving real property. We find no error and affirm.
Appellee was married to appellant’s brother for a number of years. They were divorced by a decree entered on January 14, 1991. Paragraph nine of the decree stated that appellee was given possession of the marital home located on West Bam-bie Road in Little Rock, Arkansas. Ap-pellee remained in possession of the home and paid Jim Walter Homes | .¿every month until the house was paid off. Once the house was paid off, appellant contacted appellee and asked her to send him the payoff letter, which she did. Appellee subsequently sent appellant a quitclaim deed, which was never signed. Controversy arose when appellee’s ex-husband placed four out of five acres for sale and the buyer wished to purchase the entire tract, including the house located at 14416 West Baseline Road. Appellant agreed to sell the property, including the house, and ap-pellee filed a complaint in Saline County. The complaint was eventually transferred to Pulaski County. A hearing took place on January 29, 2009, on the issue of constructive trust.
Charlie A. Higgins Jr. testified that he was the brother of appellant and ex-husband of appellee. According to Charlie, he had a trailer next to his grandmother Lela Higgins’s five acres of land on West Baseline Road. At some point, he became in terested in building a home, and he and appellee went to Jim Walter. According to Charlie, once Jim Walter discovered he had a bankruptcy, he could not get financing. Charlie testified that he called appellant, who agreed to get the deed and the mortgage in his name. Charlie stated that Jim Walter prepared a deed and had him and his grandmother sign it. Charlie testified that he and appellee were able to get the house after appellant had signed for it. According to Charlie, he and appellee picked out a home, and the home was constructed in six weeks by one worker. Charlie stated that the house he purchased was a shell home and only ninety percent of the home was completed by Jim Walter. Charlie testified that he and appellee had the rest of the house fixed or completed, including carpet and linoleum put down, the paneling and | ¡¡inside doors put up, the cabinets built, the well and septic tank put in, the ceiling insulation and spackling applied, the air conditioner and heat put in, the lights fixed, the ceiling fans and fixtures put in, and bricks placed around the foundation. Charlie stated that they also had to tear down an old house located on the property and dispose of it. Charlie testified that they spent at least $15,000 on the house and that his mother put about $12,000 into the house. According to Charlie, appellant did not take part in picking the house and he did not pay for any of the improvements, or anything else, other than having the deed and the mortgage placed in his name. Charlie testified that he and appellee paid the notes on the house until their separation; following the separation, appellee made the payments until the house was paid off. Charlie said that appellant contacted him when he and appellee decided to get divorced and told Charlie that he (appellant) hoped Charlie was not going to put “Betty and them outdoors.” Charlie stated that the divorce decree gave the house to appellee and that he did not have any claim to the house. Charlie testified that the first time appellant saw the house was in 1988, when he went to his aunt’s funeral and stayed at the house. Charlie testified that appellant never sent him any document or anything stating that he and appellee were only renting the house.
On cross-examination, Charlie stated that the court in the divorce action did not make him quitclaim his interest in the house to appellee. At that point, appellant moved to have the case dismissed, arguing that appellee did not have any ownership interest in the house and therefore did not have standing to bring the suit. The motion was denied. Charlie testified |4that he came into ownership of the house because his aunt and grandmother wanted him to have it. Charlie stated that his grandmother did not deed him the house and that he did not have a deed ownership. Charlie said that he signed the deed with his grandmother because he was wondering why his name was not anywhere on the document if he was just getting a co-signer. Charlie acknowledged that the mortgage indicated that the final cost of the house was $89,136. Charlie testified that he paid the taxes on the property all the time and when he asked appellant to help with taxes, he never did. Charlie stated that he paid the taxes on the property to “keep from losing it.”
Appellee testified that she had lived in the house at 14416 West Baseline Road for twenty-two years. She stated that she paid Jim Walter every month and that she never paid any rent to appellant. Appellee testified that, although she was not present when Charlie and appellant had a discussion about the house, she knew what was going on. Appellee stated that she went with Charlie to Jim Walter to see about building a home. According to ap-pellee, Charlie had bad credit and needed a co-signer, so he asked appellant to be a co-signer. Appellant stipulated that appel-lee had made all the payments on the house. Appellee testified that she paid the property tax every year and submitted receipts into evidence. According to ap-pellee, appellant never helped with the house payments, the insurance payments, or the tax payments. Appellee stated that when she paid the house off, she received a congratulations letter in the mail. Appel-lee subsequently received a call from appellant asking if the house had been paid off and instructing her to mail the payoff letter to him, which she did. According |fito appellee, appellant told her that he would sign a quitclaim deed, but never did. Appellee testified that she made a lot of repairs to the house over the years and that she never asked appellant to help pay for any of them. Appellee stated that she never claimed anything about the house on her taxes because her preparer told her that it would not make a difference. According to appellee, appellant was not there during the construction of the house; however, he went there for his aunt’s funeral. She stated that she considered the house to be her and Charlie’s house.
On cross, appellee stated that she did not move out of the house when she and Charlie were divorced. She testified that she took care of Charlie and appellant’s grandmother; however, she denied that there was a deal with appellant that she could live in the house and make the payments and take care of their grandmother. Appellee testified that she did not remember the State taking the land for taxes and that appellant had to redeem the property. Appellee also stated that she did not remember having to repay Jim Walter for taxes they paid on her behalf. At the conclusion of appellee’s case, appellant made the following motion:
For the record, your Honor, I would like to renew my objections to Ms. Higgin’s [sic] standing. I’d like to renew my laches argument, and this doesn’t fall under a constructive trust. Nobody even owns this property. I’m not sure anyone has a deed to this property. There are so many heirs, and none of these deeds seems to be valid to me. I am asking the Court to dismiss this case.
The court denied the motion.
The deposition testimony of appellant was admitted into evidence. In that testimony, appellant stated that he came to own the lot in question because his grandmother wanted him | fito have part of a five-acre parcel and deeded it to him. Appellant stated that the deed was signed by his grandmother Lela Higgins and a Charlie Higgins; however, he stated that at the time the deed was signed, his grandfather was dead. According to appellant, the Charlie Higgins who signed the deed in 1985 did not own the property. Appellant testified that his grandmother was ninety-seven or ninety-eight and in failing health when the deed was signed. Appellant stated that Lela wanted him to have the property because he lived in California but would make trips to Arkansas to see about her. Appellant testified that he was preparing to move back to Arkansas to take care of his grandmother and that was why he had the house built. Appellant stated that he did not build the house for appellee and Charlie to live in. Appellant testified that appellee was not involved in the conversation he had with Charlie. According to appellant, he allowed appellee and Charlie to move into the house so that it would not be vacant and because appellee was helping take care of his grandmother.
Appellant testified that he made arrangements with Charlie about the house, and those arrangements were that Charlie and appellee could stay in the house, but they had to make the payments and keep the taxes paid. He also stated that he told Charlie that he could make whatever improvements he wanted to the house. Appellant testified that Charlie and appellee made the payments but that they paid the taxes every now and then. According to appellant, the property was placed for sale and he had to catch up on the taxes. Appellant stated that Charlie instructed appellee that she had to move out of the house when they separated but that he (appellant) told appellee she could remain in the house until her son reached eighteen. 17According to appellant, the only thing he required of appellee was to keep up the payments and the taxes. Appellant stated that appellee had spoken to him a few years ago about buying the house from him, and he told her she could if she could find a way to move it off of the land. According to appellant, they never had another conversation about appellee buying the house. Appellant testified that he called Charlie when he found out that there were for-sale signs on the property. Charlie denied knowing anything about it so appellant did some research and found that Charlie had listed four acres for sale, but the agent wanted to sell the whole five acres, including the house. Appellant stated that he told the agent he had no problem with it if it would help his brother. Appellant testified that he found someone to represent him in the sale and that he was subsequently sued by appellee. Appellant stated that his grandmother deeded him the five acres because she wanted him to move back to Arkansas. He also stated that his grandmother did not deed the property to anyone else. Appellant testified that he had served in the military for twenty years and that he made trips to Arkansas “kind of on a regular basis[.]”
On cross-examination, appellant stated that he moved to California permanently in 1955. Appellant testified that he had been stationed in other areas of the United States and even spent time in Vietnam, but he returned to California in 1972 and had been a resident since that time. Appellant stated that before 1985, Charlie lived next door to the five-acre tract in a trailer. Appellant testified that Charlie was not involved with “talking to Jim Walter Homes before construction started.” He stated that he went back and forth during the ^construction of the house and that he did not know, however, if there was a salesman present during construction or how many men were sent out to build the house. According to appellant, the house was “livable” when Jim Walter put it up. Appellant acknowledged that appellee and Charlie made all the payments to Jim Walter but stated that the payments were made in lieu of rent. Appellant testified that he was informed by Jim Walter that the mortgage had been paid off. Appellant stated that he did not make any improvements on the house and that he did not claim the income on his taxes. He acknowledged that he had received a quitclaim deed in the mail but did not know where it came from. Appellant stated that he did not respond to the deed.
On redirect, appellant stated that he made a deal with Charlie that Charlie would pay Jim Walter instead of paying rent. Appellant also stated that Charlie was responsible for the taxes as part of the deal. Appellant testified that the home was prefabricated and was not built on site. According to appellant, the house was brought to the property in sections.
On re-cross, appellant stated that he paid what the law required him to pay— ten dollars to make the deed legal. He insisted that appellee and Charlie paid the mortgage in lieu of rent. According to appellant, appellee and Charlie did not pay taxes more than three times.
The trial court entered a corrected and substituted order on February 10, 2009, finding a constructive trust. In that order, the court found appellee’s and Charlie’s version of events credible as to why the mortgage was placed in appellant’s name. The court found that | ;iappellee paid all the taxes on the property except one payment made by appellant during the course of the litigation. The order further stated,
6. The defendant has lived in California since 1972. He had made no plans to move to Arkansas, and the Court does not find his deposition testimony credible that he planned to move to Arkansas and live in the subject property some day.
7. The plaintiffs ex-husband and the defendant were brothers and were in a confidential relationship when the defendant agreed to help his brother and the plaintiff enter into a contract to build a home. The defendant accepted title to the property and signed the mortgage with Jim Walters [sic] Home for the benefit of his brother and the plaintiff.
8. Therefore, the Court finds that the plaintiff has proven by clear, cogent and convincing evidence that a constructive trust should be imposed on the subject property, and the defendant is ordered to convey title to the property to the plaintiff.
This appeal timely followed.
Appellant argues three points of error: (1) appellee lacked standing to bring the suit, (2) constructive trust is barred by laches, and (3) the evidence does not support a finding of a constructive trust.
Arkansas Rule of Civil Procedure 17(a) states, “Every action shall be prosecuted in the name of the real party in interest.” It is well settled that “[a] real party in interest is considered to be the person or corporation who can discharge the claim on which the allegation is based, not necessarily the person ultimately entitled to the benefit of any recovery.” Forrest Constr., Inc. v. Milam, 345 Ark. 1, 11, 43 S.W.3d 140, 147 (2001). In the instant case, appellee is the real party in interest. The 1991 divorce decree granted appellee possession of the marital home located on West Baseline Road. Additionally, Charlie testified that he held no claim |into the property and considered it appellee’s. Therefore, for purposes of this lawsuit, appellee was the real party in interest and as such, she had standing to bring suit against appellant.
Next appellant argues that the issue of constructive trust is barred by laches. The doctrine of laches is based on a number of equitable principles that are premised on some detrimental change in position made in reliance on the action or inaction of the other party. Jaramillo v. Adams, 100 Ark. App. 335, 268 S.W.3d 351 (2007). Laches or estoppel does not arise merely by delay, but by delay that works a disadvantage to the other. Id. So long as the parties are in the same position, it matters little whether one presses a right promptly or slowly. Id. In the instant case, the trial court’s final judgment and order made no reference to appellant’s defense of laches. This court will not consider laches on appeal when the matter was not brought to the attention of the trial court for a ruling. Button v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987). The burden to obtain a ruling is with the mov-ant, and issues left unresolved may not be relied upon on appeal as they are waived. Id.
Finally, appellant argues that there was no evidence to support a finding of a constructive trust. According to appellant, he and appellee did not share a confidential relationship. However, it must be noted that the trial court did not find that appel- lee and appellant shared a confidential relationship. The order stated that the confidential relationship was shared between appellant and his brother, Charlie, appel-lee’s ex-husband.
A constructive trust is an implied trust that arises by operation of law when equity demands. Tripp v. Miller, 82 Ark. App. 236, 105 S.W.3d 804 (2008). These trusts are imposed |1Tagainst a person who secures legal title by violating a confidential relationship or fiduciary duty, or who intentionally makes a false oral promise to hold legal title for a specific purpose and, after having acquired the title, claims the property for himself. Wrightsell v. Johnson, 77 Ark. App. 79, 72 S.W.3d 114 (2002). The basis of a constructive trust is the unjust enrichment that would result if the person having the property were permitted to retain it. Tripp, supra. To impose a constructive trust, there must be full, clear, and convincing evidence leaving no doubt with respect to the necessary facts, and the burden is especially great when title to real estate is sought to be overturned by parol evidence. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996).
Although we review traditional equity cases de novo, the test on review is not whether we are convinced that there is clear and convincing evidence to support the trial court’s findings but whether we can say that the trial court’s findings are clearly erroneous. Statler v. Painter, 84 Ark. App. 114, 133 S.W.3d 425 (2003). 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 was made. A.R. v. Brown, 103 Ark. App. 1, 285 S.W.3d 716 (2008).
The trial court found appellee’s and Charlie’s testimony credible that appellant received the deed and had the mortgage placed in his name because Charlie’s credit was bad due to a prior bankruptcy. Appellee and Charlie made all payments on the mortgage, paid for all improvements, paid the insurance, and paid the property tax. The only thing appellant did |12was accept title to the land and put the mortgage in his name. Once the mortgage was paid off, appellee presented appellant with a quitclaim deed for the property, with which appellant did nothing. Subsequent to appellant’s inaction, appellee filed a claim against appellant and ultimately received judgment in her favor. Based on our standard of review, we cannot say that the trial court was clearly erroneous. Therefore, we affirm.
Affirmed.
VAUGHT, C.J., and GLOVER, J„ agree.
. The parties agree that this should be West Baseline Road and that this was a scrivener’s error. | [
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COURTNEY HUDSON HENRY, Judge.
| T Appellant David Ashcroft appeals the adjudication order entered by the Pulaski County Circuit Court finding that his two children are dependent-neglected. For reversal, he argues that the trial court’s finding of dependency-neglect is clearly against the preponderance of the evidence and that the trial court erred in limiting cross-examination of his son, C.A. Appellant also contends that the trial court erred in denying his motion for a continuance. We find no merit in any of appellant’s arguments and affirm.
Appellant and his wife, Teri Ashcroft, are the parents of two sons, C.A. and M.A., whom they adopted as infants. Both boys are eleven, but M.A. is slightly older. C.A. is shearing and speech impaired, and he attends the Arkansas School for the Deaf in Little Rock. On April 16, 2009, C.A. informed a teacher that appellant had touched him in an inappropriate manner. The teacher alerted the principal, who then summoned the school counselor. Following her conversation with C.A., the counselor placed a call to the child-abuse hotline. As a result, an investigator with the Crimes Against Children Division of the Arkansas State Police interviewed C.A. that afternoon at the school. C.A., through a sign-language interpreter, reported that appellant touched his private parts either while drying C.A. after a shower or while waking him in the mornings. C.A. also advised that he told his mother about appellant’s improper behavior.
That evening, personnel from the Arkansas Department of Human Services (DHS) visited the home to conduct a safety assessment. The employees learned that appellant was the children’s primary caretaker because Teri was ill with lupus. They placed a seventy-two-hour hold on the children because appellant, the alleged offender, was in the home and because they had concerns about Teri’s failure to protect C.A. and her apparent inability to care for the children. The trial court entered an emergency order removing the children from the home and later found probable cause for the children to remain in DHS custody.
The trial court scheduled the adjudication hearing for June 2, 2009. The hearing was not completed on that date, and the trial court continued the remainder of the hearing to June 10, 2009. The court heard the testimony of C.A.’s teacher, the school principal, and the counselor about the various disclosures that C.A. made to them about the alleged abuse. In |saddition, these witnesses related that C.A., a fifth-grader, was a good student who possessed average intelligence and who did not exhibit any behavioral problems. Also, the witnesses acknowledged that the school showed the students a film on the topic of “good touches” and “bad touches.”
Craig Taylor, who conducted the safety assessment of the home, testified that appellant provided for the boys’ everyday needs and that Teri appeared weak and used a cane due to her illness. Appellant was more fluent in sign language than either Teri or M.A., and consequently, appellant did most of the communicating with C.A. Taylor stated that Teri denied knowing anything about the abuse and that she said, if C.A. told her about it, she might have misunderstood because she was not adept at using sign language. Taylor testified that Teri displayed an accusatory attitude toward appellant during the visit and that Teri advised him that she and appellant “had not had a marriage in years.” Taylor opined that C.A. was old enough to dry himself without assistance after bathing.
Lakeshia Hendricks, the investigator with the state police, testified that she completed her investigation on May 14, 2009, and that she made a true finding substantiating the allegation of sexual abuse perpetrated by appellant. Hendricks did not substantiate a finding of neglect against Teri because of her limited ability to communicate with the child.
C.A. testified with the assistance of two interpreters, Laney Yates and Flint Fears. Prior to C.A.’s testimony, Yates informed the court that she was a full-time staff interpreter for the Administrative Office of the Courts and that she was certified by the Arkansas Supreme Court 14and by the Registry of Interpreters for the Deaf. She said that Fears was a deaf specialist and a native interpreter of American Sign Language. Yates testified that they worked together as a team and that this facilitated the interpretation process by having both a hearing and a deaf interpreter work in tandem.
C.A., who is five-feet, seven-inches tall and weighs 150 pounds, testified that appellant touched him inappropriately when appellant awakened him in the morning or while drying him after a shower. C.A. stated that the abuse happened three to five times between the years 2001 and 2009 and that two incidents took place in his bed and that two incidents occurred in the bathroom. C.A. testified that, on one occasion, appellant came into the bathroom and said that he wanted to help dry him. C.A. testified that appellant grabbed his buttocks in the process. C.A. said that, in April 2009, he was in bed when appellant touched his head, torso, hip, groin area, and “all over the front.” C.A. also said that appellant lightly touched his penis multiple times. C.A. stated that some of the touches were through his clothing but that others were not. He testified that the touches made him feel uncomfortable and that he had learned that he was not supposed to be touched in that manner. C.A. said that he told his father to stop. Finally, C.A. stated that he understood the gravity of the situation and that he was being “completely honest” with the court.
Appellant testified that C.A. was a heavy sleeper and that it was often difficult to wake him in the morning. Appellant described a routine in which he first attempts to awaken C.A. by turning the light switch on and off. He said that, if that does not wake C.A., he rubs C.A.’s Rhead. If C.A. still does not stir, appellant said that he pulls back the covers and scratches C.A.’s back, rubs his shoulders, and pats C.A. on his underwear-clad bottom. Appellant further testified that it was necessary for him to help C.A. with drying after a shower because C.A. would not dry himself completely. Appellant stated that he had never touched C.A. in a sexual manner. He surmised that C.A. wanted to live in the dorm at school and that C.A. accused him of abuse to fulfill that desire. Appellant also speculated that C.A. did not comprehend the difference between good touches and bad touches.
M.A. testified, as did Teri. M.A. stated that appellant had not touched him inappropriately, and he said that he did not believe C.A.’s allegation of abuse. Teri testified that C.A. never told her that appellant had touched him in a way that made him feel uncomfortable. She hoped that the allegation was not true but stated that, if she had to choose which one was being truthful, she would choose C.A. because appellant had lied to her about having an extramarital affair. The trial court also heard the testimony of two witnesses who vouched for appellant’s good character.
In the adjudication order, the trial court found that appellant touched C.A. inappropriately on his buttocks and penis. The court observed that C.A. was too large to be helped with drying. The court also found it relevant that C.A. and appellant were the same size and that appellant admitted that he helped C.A. with drying after a shower. In finding C.A.’s testimony truthful, the court noted that evaluating the child’s credibility presented a special challenge because his testimony was elicited through interpreters. However, the court | fifound that it was able to assess C.A.’s demeanor, and the court was persuaded that the child was being truthful because of the forcefulness with which he recounted certain events. The trial court noted that there were conflicts within C.A.’s testimony, but the court found that C.A. was credible despite the inconsistencies, which the court attributed to the fact that C.A. does not possess normal communication skills. The court also found that C.A. made an effort to communicate appellant’s behavior to Teri and that she failed to protect the child. Finally, the court believed M.A.’s testimony that appellant did not touch him inappropriately, but the court found M.A. to be at risk of harm for the same abuse suffered by C.A. Appellant brings this appeal from the adjudication order. Teri has not appealed this decision.
Appellant’s first argument on appeal is that the trial court erred in finding that he sexually abused C.A. Essentially, he argues that C.A.’s testimony was not worthy of belief Appellant points to inconsistencies in C.A.’s testimony and also argues that his testimony was rendered unreliable by the use of two interpreters. Appellant concedes that he may have accidentally touched C.A.’s private parts when drying him or waking him, but appellant argues that he did not touch C.A. for the purpose of sexual gratification.
Adjudication hearings are held to determine whether the allegations in the petition are substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(l) (Repl.2009). A dependent-neglected juvenile includes a child who is at substantial risk of serious harm as a result of sexual abuse. Ark. Code Ann. § 9-27-303(18)(A)(iii) (Repl. 2009). The term “sexual abuse” includes sexual contact by a caretaker to a person younger than eighteen years of age. Ark. Code Ann. |7§ 9-27-303(51)(C)(i). Under the juvenile code, “sexual contact” means any act of sexual gratification involving touching, directly or through clothing, of the sex organs, buttocks, or anus of a juvenile, or the breast of a female juvenile. Ark.Code Ann. § 9-27-303(52)(A)(i). Direct proof that an act was done for sexual gratification is not required if it can be inferred that the desire for sexual gratification was a plausible reason for the act. Rounsaville v. State, 374 Ark. 356, 288 S.W.3d 213 (2008).
Dependency-neglect allegations must be proved by a preponderance of the evidence. Ark.Code Ann. § 9-27-325(h)(2)(B) (Repl.2009). We will not reverse the trial court’s findings from a dependency-neglect adjudication unless they are clearly erroneous. Brewer v. Arkansas Dep’t of Human Servs., 71 Ark.App. 364, 43 S.W.3d 196 (2001). In reviewing a dependency-neglect adjudication, we defer to the trial court’s evaluation of the credibility of the witnesses. Id. This deference to the trial court is even greater in cases involving child custody, as a heavier burden is placed on the circuit judge to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interests of the children. Hardy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 751, 351 S.W.3d 182.
Before addressing appellant’s argument, we must consider the attorney ad litem’s contention that appellant’s challenge to the finding of dependency-neglect is moot. The ad litem asserts that the finding of dependency-neglect will not be affected by appellant’s argument because Teri did not appeal the adjudication order. It is true that the focus of an adjudication hearing is on the child, not the parent, and that a finding of dependency-neglect may occur | ^without reference to which parent committed the acts or omissions leading to the adjudication. Broderick v. Ark. Dep’t of Human Servs., 2009 Ark. App. 771, 358 S.W.3d 909. That is not to say, however, that one parent’s decision not to appeal necessarily renders the other parent’s appeal moot. A case is moot when any decision rendered by this court will have no practical legal effect on an existing legal controversy. S.F. v. Ark. Dep’t of Human Servs., 101 Ark.App. 236, 274 S.W.3d 334 (2008). In this case, the trial court found that- appellant sexually abused C.A. This finding formed the basis of the trial court’s ruling that the child was dependent-neglected. On appeal, appellant challenges the finding that he was the perpetrator of the abuse, and if he were to prevail, our reversal would undermine the basis for the finding of dependency-neglect and thus impact the course of the proceedings below. Moreover, we have held that a parent’s failure to appeal the rulings made in an adjudication order precludes appellate review of those rulings in an appeal from a subsequent order. Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005); White v. Ark. Dep’t of Human Servs., 2009 Ark. App. 609, 344 S.W.3d 87; Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722; Causer v. Ark. Dep’t of Human Servs., 93 Ark.App. 483, 220 S.W.3d 270 (2005). For these reasons, we do not consider the issue moot. Consequently, we hold that Teri’s decision not to appeal does not prohibit appellant from seeking review of this matter.
Turning to the merits of appellant’s argument, the trial court expressly found C.A.’s testimony to be credible, even in light of inconsistencies in his testimony. The court observed the child’s demeanor and found that the child was truthful in stating that appellant ^inappropriately touched his private parts. Because of his disability, C.A. communicates by using sign language, and by necessity the parties were required to elicit his testimony through interpreters skilled in that field. Appellant voiced no objection or concerns about this process, and we are unable to conclude that C.A.’s testimony was inherently unreliable based on the use of interpreters. Given our deference to the trial court in such matters, we are not willing to second-guess the trial court’s determination that C.A. presented credible testimony. As noted above, direct proof of sexual gratification is not necessary in that such a purpose can be inferred from the circumstances. C.A. stated that appellant touched him inappropriately on his genitals and buttocks in a manner that made him feel uncomfortable. We are not persuaded that the trial court’s finding of sexual abuse is clearly against the preponderance of the evidence.
Next, appellant contends that the trial court erred in limiting his cross-examination of C.A. The record reflects that C.A. testified at the end of the day on June 2 and at the beginning of the hearing on June 10. On June 10, the court began the hearing with its questioning of C.A. However, before the hearing commenced, the court made it clear to the parties that any follow-up questioning was not to be a repetition of questions previously asked and answered by the child, who was extensively and exhaustively examined by the parties on the previous hearing date. During appellant’s recross-examination of the child following the court’s questions, the court interrupted the examination when it considered appellant’s counsel to be questioning the child about matters that he was examined upon at the prior hearing. Specifically, counsel questioned the child as to whether the abuse occurred while appellant was |inwaking him in the mornings. Nevertheless, the court allowed counsel to ask the question, and the child answered it.
Appellant complains on appeal that the trial court erred by limiting his cross-examination, claiming that the trial court deprived him of due process. Appellant did not raise an objection at the hearing on this or any other basis. We have long held that we will not consider evidentiary arguments raised for the first time on appeal, and we decline to do so here. Ark. Dep’t of Human Servs. v. Jones, 97 Ark.App. 267, 248 S.W.3d 507 (2007).
Appellant’s last point is that the trial court erred in denying his motion for a continuance. Appellant moved for a continuance at the outset of the June 2 hearing seeking additional time to obtain the investigatory file and audiotaped interview of the child from the state police. The trial court denied the motion. The trial court noted the statutory time constraints for holding an adjudication hearing and observed that it was his task to determine what took place and that whatever information might be found in the file would be of little benefit.
The granting or denial of a motion for continuance is within the sound discretion of the trial court, and that court’s decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Jones-Lee v. Ark. Dep’t of Human Servs., 2009 Ark. App. 160, 316 S.W.3d 261. Additionally, the appellant must show prejudice from the denial of a motion for continuance. Smith v. Ark. Dep’t of Human Servs., 93 Ark.App. 395, 219 S.W.3d 705 (2005). By statute, dependency-neglect hearings are required to take place within sixty days |nof the probable cause hearing. Ark.Code Ann. § 9-27-327(a)(2) (Repl.2009). This time frame is mandatory, rather than discretionary. See Neves da Rocha v. Ark. Dep’t of Human Servs., 98 Ark.App. 386, 219 S.W.3d 660 (2005).
We find no abuse of discretion. Given the statutory time limit, a trial court has little latitude in postponing an adjudication hearing. The record also reflects that the state police completed its investigation on May 14, almost a month before the adjudication hearing. In terms of diligence, appellant did not state when he made the request to the state police for the file and audiotape, nor did he disclose what efforts he made to procure them. We also note that the trial court did not finish the hearing as anticipated on June 2 and that a week elapsed between the first and second trial dates. The record does not show that appellant made any further effort to obtain the desired information between the two hearings. In addition, appellant has demonstrated no prejudice from the denial of the motion. For these reasons, we conclude that the trial court did not err in denying the motion for a continuance.
Affirmed.
PITTMAN and BAKER, JJ„ agree.
. Appellant filed several notices of appeal that were not timely. However, the supreme court granted appellant's motion for a belated appeal. Ashcroft v. Ark. Dep't of Human Servs., 2009 Ark. 461, 2009 WL 3162287. | [
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RITA W. GRUBER, Judge.
| ¶Appellant Anita Brewer and appellee Timothy Smith are the parents of a child born out of wedlock on June 28, 2006. An order of paternity was entered on April 4, 2007, as well as an uncontested order providing for child support and visitation. This appeal is from an order entered on December 23, 2008, granting appellee’s motion for a change of custody to him. Appellant contends that the trial court erred in determining that there was a material change of circumstances and that it was in the best interest of the child to award custody to appellee. We find no error and affirm.
From the time the order of paternity was entered in this case until the hearing on appellee’s motion for change of custody, the parties experienced significant problems with appellee’s exercise of visitation with the child. On June 15, 2007, appellee filed a petition for specific visitation, contending that appellant had repeatedly and purposely denied his rights |2of visitation. On August 15, 2007, the court entered an order setting forth appellee’s specific rights to visitation and the rules governing certain of the parties’ interactions concerning the child, including, for example, that neither party would have overnight guests of the opposite sex when the child was present.
The parties continued to experience conflict over appellee’s visitation, and on October 24, 2007, the trial court heard ap-pellee’s motion for contempt, filed in September 2007, and found appellant in contempt for denying visitation. The court questioned whether appellant had “the best interest of the child at heart” and warned that, if appellant denied visitation again, the court “in all likelihood” would order a change of custody. The court withheld sentencing on the contempt.
In March 2008, appellee filed another petition for contempt, alleging that appellant was still denying him visitation. He also requested a change of custody. The court held a hearing on the second contempt petition on April 9, 2008, and again found appellant in contempt. The court sentenced appellant on both the previous contempt and on the second contempt to serve forty-eight hours in the county jail and to pay appellee’s attorney’s fee of $500.
The trial court heard the petition for change of custody on August 15, 2008. Testimony at trial indicated that appellant had between two and four residences in a trailer park since the child was born in June 2006 and that, in contrast, appellee had owned and lived in a condominium in Germantown, a nice suburb of Memphis, for eighteen years. A Tennessee child services’ employee, who responded to allegations filed by appellant, testified |sthat appellee’s home was immaculate and that the child had her own room appropriately decorated for a little girl her age.
Appellant admitted that she and her boyfriend had spent the night together several times in the presence of the child in direct violation of the court’s previous order. Appellant also testified that she was employed forty hours a week as a security officer at the time of trial, but she admitted that she had held at least seven different jobs during the past five years. Appellant stated that she had two other children in addition to the minor child at issue in this case. Her older daughter, who was seventeen at the time of trial, dropped out of school when she was fourteen and moved in with her grandparents. She had not finished high school and was, at the time of trial, engaged to be married. Appellant’s son was nineteen or twenty at the time of trial, also had not completed high school, had moved out of appellant’s home sometime during high school, and had criminal convictions as a minor and an adult. Appellant also stated that she had just started attending church after the petition for change of custody was filed and that she had never really attended church before the past few months.
Finally, Officer Selgyna Brown of the Memphis Police Department testified by deposition that appellant was aggressive and accusatory during the visitation exchanges. She testified that appellant yelled at appellee in front of the child, accused him of child abuse, and reported to her that appellee was drunk, which he was not. Appellant also made numerous child-abuse complaints about appellee to the Memphis Police Department, the Ger-mantown Police Department, the Critten-den County Sheriffs Office, the rape and sexual abuse crisis |4agencies, and the Tennessee Department of Children’s Services, and all of the allegations were unfounded.
Appellee testified that he was self-employed, had flexible work hours, attended church regularly and took the child with him when she visited, and made arrangements with families from his church for assistance with the child when needed. He also testified that he attended two parenting classes: one four-hour class ordered by the court and one thirty-hour class recommended by his church.
On December 4, 2008, the court sent a twelve-page letter to the parties setting forth in great detail its findings and conclusions. The court determined that there had been a material change in circumstances since the last custody order — that is, the date the order of paternity was entered. The court found that, since that time, appellant admitted she had spent the night with her boyfriend in the presence of the child at least twice in direct violation of prior court orders. The court also recognized that appellant had twice been found guilty of contempt for denying visitation on numerous occasions. Finally, the court noted that appellant had made numerous allegations against appellee of sexual and physical abuse, all of which had proven unfounded. Moreover, appellant had subjected the child to numerous unnecessary physical examinations in an attempt to prove these allegations. The court referred to Officer Brown’s deposition testimony in which she stated that appellant continually cursed, screamed, and accused appellee of inappropriate activity in the presence of the child.
| fiThe court then found that it was in the child’s best interest to live with appellee and, accordingly, changed custody to him. In its letter, the trial court set forth a very detailed analysis of its considerations, including an analysis of appellant’s physical-abuse contentions against appellee. In essence, the court determined that appellant’s success, or lack thereof, in raising her other two children — neither of whom graduated from high school, both of whom moved out of her home when minors, and both of whom had a criminal arrest or conviction — indicated a lack of parenting skills. The court also noted that appellant had moved around, had an unstable employment history, and had emotional problems with respect to appellee’s visitation, demonstrated by her defiant attitude, outbursts during visitation exchanges, and repeated denial of appellee’s right to his court-ordered visitation. On the other hand, the court observed that appellee was self-employed with flexible work hours, attended church on a regular basis with the child, owned his own home in which he had lived for eighteen years, and had demonstrated to the court his willingness to abide by the court’s orders by attending not one, but two, parenting classes. The court found that appellee had a more stable home life, was more stable financially, would set a better example for the child, and would put more emphasis on the child’s education and the importance of graduating from high school. The court also found that appellant was not credible and that appellee was more believable and more likely to foster visitation with the noncustodial parent in the future.
In the letter’s closing paragraph, the court directed appellee’s attorney to prepare an order reflecting the court’s ruling. On December 28, 2008, the court entered an order |fiawarding custody to appellee, finding that there had been a material change of circumstances and that it was in the child’s best interest for appellee to be awarded custody subject to the right of appellant to exercise visitation. This appeal followed.
In reviewing child-custody cases, we consider the evidence de novo, but we will not reverse the trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003). A finding is clearly against the preponderance of the evidence when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Davis v. Sheriff, 2009 Ark. App. 347, at 2, 308 S.W.3d 169. We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. Carver v. May, 81 Ark.App. 292, 296, 101 S.W.3d 256, 259 (2003). We have often stated that we know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Id.
In deciding whether a change of custody is warranted, the trial court must first determine whether there has been a material change in circumstances of the parties since the most recent order of custody. Davis, 2009 Ark. App. 347, at 2, 308 S.W.3d 169. If that threshold requirement is met, the court must then determine who should have custody with the sole consideration being the best interest of the child. Id.
Appellant challenges both of the court’s findings: that there has been a material change 17of circumstances since the most recent custody order and that it was in the child’s best interest to change custody to appellee. With regard to the material change in circumstances, appellant argues that the last order entered in the case was the second order finding appellant guilty of contempt and sentencing her for both contempt petitions. Appellant misunderstands the law. Custody shall not be changed unless there has been a material change of circumstances “since the last order of custody,” Davis, 2009 Ark. App. 347, at 2, 308 S.W.3d 169 (emphasis added), not since the last order in the case.
Turning to the evidence in this case, we cannot say the court’s finding of a material change in circumstances is clearly erroneous or clearly against the preponderance of the evidence. Appellant was twice found guilty of contempt for denying visitation to appellee since the most recent order of custody was entered. She also admitted that she spent the night with her boyfriend in the presence of the child on several occasions in direct violation of court orders entered since the last custody order was entered. The court found that appellant’s repeated failure to comply with its previous orders for visitation constituted a material change in circumstances. The court also found appellant’s repeated, unfounded allegations of physical and sexual abuse and her angry, accusatory, and inappropriate conduct during exchanges of the child for visitation were a material change in circumstances since the initial custody order. We hold that the court’s decision was not clearly against the preponderance of the evidence. See, e.g., Sharp v. Keeler, 99 Ark.App. 42, 256 S.W.3d 528 (2007) (holding that the mother’s repeated refusal to allow father visitation when she decided |svisitation was not in the child’s best interest, and her refusal to follow the trial court’s directives, constituted a record of continued alienation that was a material change of circumstances); Swadley v. Krugler, 67 Ark.App. 297, 999 S.W.2d 209 (1999) (holding that the mother’s repeated and unfounded accusations against the father of sexual abuse toward parties’ child constituted a material change in circumstances).
Finally, we hold that the court’s finding that it was in the child’s best interest to change custody to appellee was not clearly against the preponderance of the evidence. The court’s letter set forth in great detail its reasons for concluding that it was in the child’s best interest to change custody to appellee. The court found ap-pellee to be a more credible witness, a more stable parent, and a better example for the child. The court determined appel-lee had a more stable home life and was more financially stable than appellant. The court also found that appellee was more likely to foster visitation and a good relationship with the other parent. Finally, the court did not believe that appellant put the interests of the child before her own personal interests.
For the foregoing reasons, we hold that the trial court’s decision changing custody to appellee was not clearly erroneous, and we affirm its decision.
Affirmed.
GLOVER and BROWN, JJ., agree. | [
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PER CURIAM.
|,In 1991, petitioner Steven Laron McArthur was found guilty by a jury of capital murder in the death of Rodney Spence in 1990. He was sentenced to life imprisonment without parole. We affirmed. McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992).
Petitioner has now filed a pro se petition in this court requesting that jurisdiction be reinvested in the trial court so that he may proceed with a petition for writ of error coram nobis. A petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Hooper v. State, 2014 Ark. 16, 2014 WL 197785 (per curiam).
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Cromeans v. State, 2013 Ark. 273, 2013 WL 3179379 (per curiam). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. McDaniels v. State, 2012 Ark. 465, 2012 WL 6218480 (per curiam). We have held that a writ of error coram nobis is available to address certain errors that are found in one of four categories: insanity at |2the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Charland v. State, 2013 Ark. 452, 2013 WL 5968924 (per curiam); Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. McFerrin v. State, 2012 Ark. 305, 2012 WL 3366058 (per curiam); Cloird v. State, 2011 Ark. 303, 2011 WL 3135958 (per curiam). The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Wright v. State, 2014 Ark. 25, 2014 WL 260993 (per curiam); Williams v. State, 2011 Ark. 541, 2011 WL 6275431 (per curiam). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771; Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)).
In his petition, petitioner raises three grounds for the writ. To understand the claims, a brief summary of the facts of the case is necessary. On January 21, 1990, a hunter discovered the body of sixteen-year-old Rodney Spence in Lonoke County. Spence had been shot twice in the head at close range. Spence’s father testified at petitioner’s trial that, on the afternoon of January 20, 1990, Spence had left his parents’ home with the understanding that he would be home by 10:00 p.m. that night. Spence was driving a 1986 red Ford Ranger. Spence’s uncle testified that he saw Spence later that evening, and Spence said he was going to Cabot, Arkansas. When Spence did not return home by 10:30, his parents reported him missing. His body was discovered the next day.
|aOn January 23, 1990, a patrolman with the Piano Texas Police Department pulled over a red Ford Ranger with Arkansas plates after hearing a national broadcast to be on the lookout for the vehicle. Donald Hawley, the driver of the truck, informed the Texas authorities that he and petitioner had been in Cabot, Arkansas, the past weekend and stayed at petitioner’s girlfriend’s apartment. Hawley stated that petitioner had left the apartment for a while on Saturday, and, when petitioner returned, he was driving the red truck, which Hawley and petitioner drove to Texas. The Piano police executed a search warrant on petitioner’s sister’s apartment where they found a gun in a nightstand drawer. At trial, the parties stipulated that the gun was the weapon that had been used to shoot Spence.
Donald Hawley eventually pled guilty to capital murder and testified at petitioner’s trial. Hawley testified that petitioner had approached Spence in the parking lot of a grocery store in Cabot. According to Haw-ley, he and petitioner arranged for Spence to give them a ride to a liquor store and Spence drove them to two liquor stores and a convenience store. When Spence went inside the convenience store, petitioner informed Hawley that he was going to ask Spence to drive them to a friend’s house and instructed Hawley to act sick when petitioner prompted him to do so. Petitioner then directed Spence to drive to a remote location whereupon petitioner told Hawley to feign sickness. When Spence stopped the truck, petitioner and Hawley got out of the truck on the passenger side. Spence also got out of the truck, and petitioner asked Spence for assistance in getting Hawley back into the truck. Hawley then stepped around to the rear of the truck, aimed a gun at Spence, and instructed Spence to lie on the ground and empty his pockets. Hawley testified that petitioner said, “Well, shoot him,” and Hawley shot Spence |4in the head. As the two men carried Spence’s body away, petitioner stated that Spence was still alive. According to Hawley, petitioner said that he did not want to see Spence suffer, and petitioner fired a second shot into Spence’s head. After killing Spence, Hawley and petitioner took Spence’s truck and left for Texas.
As his first ground for the writ, petitioner asserts that he has two pieces of new evidence. The first is an undated letter from Hawley to petitioner’s family in which he admits to testifying falsely that petitioner fired the second shot and explains that he only did so to avoid the death penalty and to obtain a promise of favorable treatment by the prison authorities. The other new evidence is a transcript of a pretrial discussion between Hawley and his attorney. In the statement, Hawley said that he fired both shots and also states that, when he and petitioner got to the spot where Spence’s body ultimately was found, petitioner told Spence to stop the truck because Hawley was going to be sick. Hawley said in the statement that the feigned sickness was planned ahead of time and that petitioner told him to shoot Spence after Spence got out of the truck because Spence was a witness and could send them to prison. Petitioner contends that this statement was never disclosed to the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
With respect to the undated letter from Hawley to “Mrs. McArthur,” the letter does not indicate that petitioner was not present when the shooting occurred or otherwise contradict Hawley’s testimony concerning the plan to trick the victim into going with Hawley and petitioner. Rather, it is essentially a recantation of Haw-ley’s testimony that petitioner fired one of the shots into Spence’s head. As such, the letter is not a ground for granting a writ of error |Bcoram nobis. A claim of recanted testimony, standing alone, is not cognizable in an error-coram-nobis proceeding. Anderson v. State, 2012 Ark. 270, 423 S.W.3d 20 (per curiam) (citing Jackson v. State, 2010 Ark. 81, 2010 WL 1006491 (per curiam)); Smith v. State, 200 Ark. 767,140 S.W.2d 675 (1940) (holding that the writ was not available to afford relief on the ground that the principal witness against the accused had recanted and that others since the accused’s conviction had confessed to the crime); see also Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990) (A witness’s recantation of part of his trial testimony was not a ground for the writ as recantation of testimony did not fit within the remedy.).
As to Hawley’s statement to his attorney that petitioner alleges was withheld from the defense, failure to disclose evidence favorable to the defense in violation of Brady, if established, is cause to grant the writ. Pitts, 336 Ark. 580, 986 S.W.2d 407. In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court revisited Brady and declared that, when the petitioner contends that material evidence was not disclosed to the defense, the petitioner must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” 527 U.S. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). In Strickler, the Court also set out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler, 527 U.S. 263, 119 S.Ct. 1936; Buchanan v. State, 2010 Ark. 285, 2010 WL 2210923 (per curiam).
Petitioner has not established a Brady violation with respect to Hawley’s statement. First, |fihe offers no substantiation for the claim that ⅞6 prosecution was aware of the statement ahd concealed it from the defense. Secondly, even if the prosecution was aware of the statement, it was not favorable to the defense to the degree that petitioner }las demonstrated that the outcome of the trial would have been different had the defense had the statement at trial. The law in Arkansas makes no distinction between the criminal liability of a principal and án accomplice. Ark.Code Ann. § 5-2-402(2) (Repl.2006). We have held that under the accomplice-liability statute, a defendant may properly be found guilty not only of his own conduct but also of the conduct of his accomplice. Winters v. State, 2013 Ark. 193, 427 S.W.3d 597 (citing Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991)). When two or more persons assist one ¡another in the commission of a crime, each is an accomplice and criminally liahle for the conduct of both. Id. Ah admission by one does not exculpate the other. Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001). It is the petitioner’s burden to show that the outcome of the proceeding wpuld have been different had the statement been provided to the defense, and the incriminating material contained in it supports Hawley’s testimony about petitioner’s role in the crime with the exception of whó fired the second shot. Petitioner’s failure to show that the prosecution was aware of the statement and his failure to establish that the outcome of the trial would have been different had the statement been available to the defense defeat petitioner’s claim of a Brady violation.
Petitioher further asserts that the State’s withholding qf evidence that was exculpatory and could have been Used to impeach the State’s witnesses caused his counsel to be ineffective and, further, that there were other instances in which counsel was ineffective that did not pertain Uto the allegedly withheld evidence. We do not find that petitioner has established that he was prejudiced by the State’s withholding of any particular evidence. Moreover, allegations of ineffective assistance of counsel are outside the purview of a co-ram-nobis proceeding. Mason v. State, 2014 Ark. 288, 436 S.W.3d 469; Wright, 2014 Ark. 25 (citing State v. Tejeda-Acosta, 2013 Ark. 217, 427 S.W.3d 673); Watts v. State, 2013 Ark. 485, 2013 WL 6157325 (per curiam). Such claims are properly raised in a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. A petition for writ of error coram nobis is not a substitute for raising an issue under Rule 37.1. Mason, 2014 Ark. 288, 436 S.W.3d 469; Travis v. State, 2014 Ark. 82, 2014 WL 689056 (per curiam).
Petitioner next argues that the writ should issue because his conviction was based on testimony known by the State to be false. The argument is largely based on petitioner’s claim that Hawley fired both shots and that the State withheld Hawley’s statement admitting to having done so, thus violating Brady. As stated, the allegation concerning Hawley’s statement does not rise to a Brady violation. Petitioner has not shown that there was some fundamental flaw in the proceeding against him that warrants granting the writ. See Evans v. State, 2012 Ark. 161, 2012 WL 1223773 (per curiam).
To the extent that the assertions concerning the allegedly false testimony could be considered claims that the evidence was insufficient to sustain the judgment, issues concerning the sufficiency of the evidence or the credibility of witnesses are not cognizable in coram-nobis proceedings. Philyaw v. State, 2014 Ark. 130, 2014 WL 1096201 (per curiam). Those issues are to be settled at trial, and, when appropriate, on the record on direct appeal. Id.; Sims v. State, 2012 Ark. 458, 2012 WL 6061927 (per |scuriam). Finally, petitioner asks that counsel be appointed to represent him in his coram-nobis proceeding. As we find no merit to the petition, the motion is denied.
Petition and motion denied. | [
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DAVID M. GLOVER, Judge.
|! This is an appeal from an order terminating the parental rights of Amy Villa-nueva to her two children, M.V. (d.o.b.ll- 23-2004) and A.V. (d.o.b.1-16-2008). Amy Villanueva’s counsel has filed a motion to be relieved and a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131,194 S.W.3d 739 (2004), and Rule 6-9(i) of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas. She contends that there are no issues of arguable merit to support the appeal. She reports that there were no objections made during the termination hearing; her brief discusses in detail the trial court’s adverse ruling in granting the termination itself; and she explains why it does not provide a meritorious ground for reversal. The clerk of our court sent copies of the brief and |2the motion to be relieved to Amy, informing her that she had the right to file pro se points. She has not done so.
This case originated with a child-abuse hotline call on July 30, 2012. Amy was located on August 3, 2012. She admitted “smacking” M.V. on the back of his head for “messing with” his little brother, smoking marijuana occasionally, taking methamphetamine a few days earlier (she tested positive), being arrested and convicted for possession of methamphetamine and drug paraphernalia on June 22, 2012, and failing to attend drug court in July. The children were removed from her custody on August 3, 2012, with a seventy-two-hour hold. Emergency custody was granted on August 6, 2012, and the probable-cause order was entered August 13, 2012. The two children were adjudicated dependent-neglected on October 3, 2012, following a hearing. The State filed a petition to terminate on August 7, 2013, alleging that the children had been out of the home for twelve months and despite meaningful efforts by the Department of Human Services (DHS) to rehabilitate the parent and correct the conditions that caused removal, those conditions had not been remedied. The termination hearing was originally scheduled for October 31, 2013. It was not actually held until November 22, 2013. Amy entered an intensive outpatient-treatment program on August 28, 2013. The children had remained out of her custody, and, other than a mistaken visitation early in the case, she had not been able to visit them because she had not passed the required three drug screens in three weeks. She also had not attended drug court. At the time of the termination hearing, she had several negative drug screens in the period just prior to the hearing, she obtained housing with her boyfriend the night before the hearing, and she had | sheld a job for approximately eight weeks. She had completed only eight of the twelve required parenting hours prior to the termination hearing.
Following the hearing, the trial court terminated Amy’s parental rights, finding that DHS had proved by clear and convincing evidence that the children had been out of the home for more than twelve months and that, despite meaningful efforts by DHS, Amy had not remedied the conditions that led to removal, and it was in the children’s best interest for her parental rights to be terminated. In addition, the trial court found that other factors had arisen since the original petition was filed, showing that Amy had mental-health issues that she was not adequately addressing.
We agree with counsel that grounds for termination were sufficiently proved, and that there was sufficient evidence to show that it was in the children’s best interest for Amy’s parental rights to be terminated because the children were both “highly adoptable,” and the potential for harm was clear. The family-service worker testified that the children were highly adoptable, and the potential for harm if they were returned was evident from the lack of any effort until the eleventh hour to improve the conditions that led to their removal. What efforts Amy made came only when termination was clearly on the horizon.
Our review of the record and the brief presented to us convinces us that counsel has complied with the requirements established by the Arkansas Supreme Court for no-merit motions in termination cases, and we hold that the appeal is wholly without merit. Accordingly, we affirm the order terminating Amy Villanueva’s parental rights and grant counsel’s motion to withdraw.
|4Affirmed; motion to withdraw granted.
GRUBER and WHITEAKER, JJ., agree.
. The parental rights of the father, Michael Villanueva, were also terminated, but he has not appealed. | [
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ROBERT J. GLADWIN, Chief Judge.
11 This is an appeal froto the termination of appellant’s parental rights to her son, D.D. We affirm.
D.D. was born on September 11, 2010, at twenty-four-weeks gestation, weighing less than two pounds. D.D.’s health was extremely fragile, including a bilateral brain hemorrhage, reflux, and dysphasia, which required that he be fed through a gastros-tomy tube. After an extensive stay at Arkansas Children’s Hospital (“ACH”), D.D. was released for follow-up at the High Risk Newborn Clinic. However, after appellant had missed several appointments, the hospital contacted the Arkansas Department of Human Services (“ADHS”) and made a report of medical neglect. In March 2011, a twenty-day petition for dependency-neglect was filed to ensure appellant’s cooperation with ACH.
|2On April 1, 2011, appellaht took D.D. for a checkup, and ACH reported that there were no concerns. However, at the next appointment, on April 22, 20Í1, D.D. was admitted to ACH for failure to thrive after having lost one pound and seven ounces since the April 1, 2011 appointment. D.D.’s removal from appellant on April 27, 2011, by ADHS was promoted when ACH reported to the hotline that D.D., a medically fragile child, had been admitted for failure to thrive, and that appellant had not been able to articulate how DJD.’s feedings were to be mixed.
On June 29, 2011, D.D. ivas adjudicated dependent-neglected due to medical neglect. Appellant was ordered to complete a myriad of services, including a psychological evaluation, and medical training relevant to D.D.’s cohdition. The case proceeded through multiple review and permanency-planning hearings, with some progress by appellant noted by the circuit court. The direction of the case changed at the September 11, 2012 permanency-planning hearing, where the circuit court noted in its order that (1) appellant had missed numerous medical appointments where she would have had the opportunity to learn information that would be necessary to care for D.D.; (2) appellant had missed six scheduled visitations where she could have put into practice skills necessary for D.D.’s care; and (3) appellant had not secured “reliable transportation.” The circuit court authorized ADHS to pursue termination of appellant’s parental rights to D.D.
ADHS filed a petition for the termination of appellant’s parental rights on November 26, 2012. But on February 12, 2013, ADHS sought to dismiss its petition because appellant had obtained a driver’s license and a vehicle, independent housing, and the caseworker noted Rthat her “whole demeanor” had changed since the petition for termination had been filed. The worker further testified that appellant had been undermined by the foster parents. The circuit court rejected the caseworker’s testimony, finding that the foster parents had been “good and responsible.” Appellant’s therapist also testified that she had made “significant progress.” In the end, over the attorney ad litem’s objection, the circuit court dismissed ADHS’s petition.
On February 14, 2013, the circuit court entered an interim order, noting that ADHS was seeking to have appellant’s mother assist in D.D.’s care, and ordered ADHS to refer her for a psychological evaluation. ADHS began overnight visitations of D.D. with appellant, but the ad litem did not approve and filed a petition for termination on behalf of D.D. on February 25, 2013. A hearing was held on that petition on May 14, 2013. The circuit court terminated appellant’s parental rights pursuant to an order filed on July 11/2013, based on the statutory ground found at Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) (Supp.2013), where the child has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. The court also based the termination on a second statutory ground, commonly referred to as the “subsequent issues” ground, from Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a). Appellant concedes that D.D. is adoptable; accordingly, any deficiency of the circuit court’s adoptability finding has been waived. Friend v. Ark. Dep’t of Human Servs., 2009 Ark. App. 606, 344 S.W.3d 670 (affirming termination, including best-interest finding, when appellant conceded juvenile was adoptable). Appellant filed a timely notice of appeal from that order on July 23, 2013.
Appellant argues that there was insufficient evidence to demonstrate that was not competent to provide appropriate care for D.D., or that returning him to her care was contrary to his health, safety, or welfare. Because we are satisfied with the decision of the circuit court and the accompanying quantum of evidence and findings supporting its order, we affirm by memorandum opinion. In re Memorandum Opinions, 16 Ark.App. 301, 700 S.W.2d 63 (1985). The circuit court’s decision to terminate appellant’s parental rights to D.D. is not clearly erroneous and is affirmed in all respects.
Affirmed.
VAUGHT and BROWN, JJ., agree. | [
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PER CURIAM.
hln 1999, petitioner Leonard Noble was found guilty by a jury of residential burglary and rape and sentenced as a habitual offender to an aggregate sentence of 900 months’ imprisonment. The Arkansas Court of Appeals affirmed. Noble v. State, CR-00-587, 2001 WL 1092820 (Ark.App. Sept. 19, 2001) (original docket no. CACR 00-587).
Petitioner has now filed a pro se petition in this court requesting that jurisdiction be reinvested in the trial court so that he may proceed with a petition for writ of error coram nobis. A request for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Burton v. State, 2014 Ark. 44, 2014 WL 346988 (per curiam); Charland v. State, 2013 Ark. 452, 2013 WL 5968924 (per curiam).
A writ of error eoram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Cromeans v. State, 2013 Ark. 273, 2013 WL 3179379 (per curiam); Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The writ is allowed only under compelling circumstances to achieve justice and |ato address errors of the most fundamental nature. McDaniels v. State, 2012 Ark. 465, 2012 WL 6218480 (per curiam). We have hekj. that a whit of error coram nobis is available to address certain errors that are found ip one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to tjie crime düring thfe time between conviction and appeal. Charland, 2013 Ark. 452, 2013 WL 5968924; Cromeans, 2013 Ark. 273, 2013 WL 3179379; Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). The function of the writ is to secute belief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition Of judgment. McFerrin v. State, 2012 Ark. 305,2012 WL 3366058 (per curiam); Cloird v. State, 2011 Ark. 303, 2011 WL 3135958 (per curiam). The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Williams v. State, 2011 Ark. 541, 2011 WL 6275431 (per curiam). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771; Carter v. State, 2012 Ark. 186, 2012 WL 1435672 (per curiam); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)).
As grounds for the writ, petitioner states that he has been trying diligently to acquire evidence that was suppressed by the prosecution that wquld show that he is actually innocent of the offenses. A claim of evidence wrongfully suppressed by the State fits within one of the four categories fob coram-nobis relief under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Failure to disclose evidence favorable to the defense in violation of Brady, if established, is cause to grant the writ. Pitts, 336 Ark. 580, 986 S.W.2d 407.
lsIn Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court revisited Brady and declared that, when the petitioner contends that material evidence was not disclosed to the defense, the petitioner must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” 527 U.S. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). In Strickler, the Court also set out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler, 527 U.S. 263, 119 S.Ct. 1936; see also Buchanan v. State, 2010 Ark. 285, 2010 WL 2210923 (per curiam). Here, petitioner has not demonstrated that there was specific evidence favorable to the defense that was suppressed by the State or that he was prejudiced.
As grounds for the claim that the State withhekj favorable evidence from the defense, appellant states that the defense filed a motion for discovery in 1999 seeking any report or statement of experts, including results of physical or mental examinations, scientific testing, and comparisons, but the prosecutor deliberately suppressed the evidence requested. As proof that the evidence was kept from the defense, petitioner has attached to his peti tion a copy of a report prepared by the sheriffs office that reflects that the victim was taken to a hospital to be examined for indications of a sexual assault in 1998. He goes on to contend that there was no substantial circumstantial evidence adduced at trial to establish his guilt, no testimony about evidence of rape from any medical staff member, and no DNA evidence. He further contends that the victim was unable to identify him as the rapist, a witness for the State said he was not 14the rapist, the State crime laboratory report and rape kit did not reveal a “match up,” and there was no sign of rape on the victim’s body. While petitioner argues that these statements are proof that the State withheld evidence, he merely alleges that his attorney requested the evidence and the State withheld it without explaining what specific evidence was hidden from the defense.
If appellant is referring to the victim’s hospital records, appellant alleges only that the records would have shown that the doctor could find nothing wrong with the victim. There were references at trial to the rape kit obtained at the hospital following the attack, indicating that the fact that the victim was examined at a hospital was known to the defense at the time of trial. Appellant does not allege that the hospital records contained particular exculpatory information that could not have been secured by the defense because the State had somehow concealed it. Again, to merit relief on a claim of a Brady violation, a petitioner must demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the information been disclosed at trial. Williams v. State, 2011 Ark. 541, 2011 WL 6275431 (per curiam). In order to carry his burden to show that the writ is warranted, petitioner must demonstrate that the State had specific evidence that would have been sufficient to have prevented rendition of the judgment. See Harris v. State, 2010 Ark. 489, 2010 WL 5059552 (per curiam). Appellant’s vague allegations of withheld evidence are insufficient to meet that burden.
To the extent that the assertions concerning alleged suppression of exculpatory evidence by the State could be considered claims that the evidence was insufficient to sustain the judgment, issues concerning the sufficiency of the evidence are not cognizable in coram-nobis | r,proceedings. Philyaw v. State, 2014 Ark. 130, 2014 WL 1096201 (per curiam). Issues pertaining to the sufficiency of the evidence are to be settled at trial, and, when appropriate, on the record on direct appeal. Sims v. State, 2012 Ark. 458, 2012 WL 6061927 (per curiam).
Petition denied. | [
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PER CURIAM.
|Jn 2006, appellant Kedrick Trevon Dar-rough, Sr., was found guilty by a jury in the Drew County Circuit Court of possession of cocaine with intent to deliver and possession of marijuana with intent to deliver. Under an enhancement for a subsequent controlled-substance conviction, he was sentenced to 840 months’ and 240 months’ imprisonment to be served consecutively. The Arkansas Court of Appeals affirmed. Darrough v. State, CR-07-223, 2007 WL 3088253 (Ark.App. Oct. 24, 2007) (original docket no. CACR 07-223). He then timely filed in the trial court a verified pro se petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (2006). The trial court denied the petition, and this court affirmed. Darrough v. State, CR-08-357, 2008 WL 4672296 (Oct. 23, 2008) (unpublished per curiam).
On February 24, 2014, appellant, who is incarcerated at a prison facility in Lee County, filed in the Drew County Circuit Court a pro se petition for writ of habeas corpus pursuant to Act 1780 of 2001, as amended by Act 2250 of 2005 and codified at Arkansas Code Annotated sections 16- 112-201 to -208 (Repl.2006). The trial court denied the petition, finding that it ^contained no allegations that the judgment in appellant’s case imposed an illegal sentence or was illegal on its face or that the trial court lacked jurisdiction in the case. Appellant timely lodged an appeal in this court from the order, and the appel-lee now asks that the appeal be dismissed on the ground that the habeas petition stated no ground for relief that would invest jurisdiction in the trial court to consider it.
The appellee’s motion is granted inasmuch as it is clear from the record that appellant could not prevail on appeal. An appeal from an order that denied a petition for postconviction relief, including an appeal from an order pertaining to a petition for writ of habeas corpus, will not be permitted to go forward where it is clear that the appellant could not succeed on appeal. See Fortier v. Hobbs, 2014 Ark. 209, 2014 WL 1856743 (per curiam).
In his petition, appellant first alleged that there was scientific evidence to demonstrate that he was actually innocent of the offenses of which he was convicted, but he made no statement as to the nature of the scientific evidence. He also alleged that his sentence was illegal on the ground that it was not subject to enhancement because he was a first-time offender.
Act 1780 of 2001, as amended by Act 2250 of 2005, in effect on the date that appellant filed his petition, provides that a writ of habeas corpus can issue based on new scientific evidence proving a person actually innocent of the offense for which he was convicted. Ark.Code Ann. § 16-112-201; Ferrell v. State, 2014 Ark. 242, 2014 WL 2158136 (per curiam); King v. State, 2013 Ark. 133, 2013 WL 1279079 (per curiam). Here, appellant failed to state that there was any specific evidence to be tested. For that reason, the petition was wholly without merit if considered pursuant to sections 16-112-201 to -208.
laThe appellee notes that the allegation in the petition that the sentence was illegal could have been considered under Arkansas Code Annotated sections 16-112-101 to -123 (Repl.2006). Under sections 16-112-101 to -123, a petition for writ of habeas corpus can be filed on the ground that a judgment of conviction is invalid on its face or that the trial court lacked jurisdiction over the cause. Strong v. Hobbs, 2013 Ark. 376, 2013 WL 5519972 (per curiam). If appellant intended for his petition in which he alleged that the sentence imposed on him was illegal to be a petition under that statute, his petition should have been filed in Lee County where he was in custody.
Arkansas Code Annotated section 16-112-105 requires that certain procedural requirements be met by a petitioner asking a court to issue a writ of habeas corpus, including the requirement that the writ must be directed to the person in whose custody the prisoner is detained. Ark.Code Ann. § 16-112-105(b)(l). Additionally, the writ should be issued by a court that has personal jurisdiction over the defendant. Meraz v. State, 2013 Ark. 419, 2013 WL 5775668 (per curiam); Borum v. State, 2011 Ark. 415, 2011 WL 4635043 (per curiam). Otherwise, although a court may have subject-matter jurisdiction to issue the writ, a court does not have personal jurisdiction to issue and make returnable a writ of habeas corpus when the petitioner is in another county. See, e.g., State Dep’t of Pub. Welfare v. Lipe, 257 Ark. 1015, 521 S.W.2d 526 (1975); Johnson v. McClure, 228 Ark. 1081, 312 S.W.2d 347 (1958); State v. Ballard, 209 Ark. 397,190 S.W.2d 522 (1945).
In the present matter, appellant was incarcerated in Lee County when he filed his petition, and the records of the Arkansas Department of Correction ds of the date of this opinion indicate that he remains in that county. As appellant was not in custody ih Drew County when he filed his petition there, the Drew County Circuit Court did not have personal | Jurisdiction to effect his relief from custody. See Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). Therefore, if the habeas petition was intended to state a ground for relief under sections 16-112-101 to -128, this appeal is also subject to dismissal on the basis that the habeas petition was filed in the wrong court.
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JIM GUNTER, Justice.
| tAppellant Tamera Troeskyn appeals from an order of the Arkansas County Circuit Court denying her petition to terminate guardianship. She asserts on appeal that Ark.Code Ann. § 28-65-401 (Repl.2012), is unconstitutional as applied to her because it impinges on her fundamental liberty interest with respect to the care, control, and custody of her child; that the circuit court erred in denying the petition to terminate the guardianship; that the circuit court erred in granting a motion for psychological evaluation; and that the circuit court erred in admitting the records and reports of Lesa Doan and Dr. Steven Shapse into evidence. We assumed jurisdiction over this case as one involving issues of federal constitutional interpretation pursuant to Ark. Sup.Ct. R. 1 — 2(b)(3).
S.H. was born on July 1, 2005, to Scott Herrington and Tamera Troeskyn when Tamera lived in Minnesota. Thereafter, Tamera moved to Stuttgart, Arkansas, into a house with Scott next door to his parents, Donna and Larry Herrington. On August 19, 2008, the |2Herringtons filed a petition for guardianship of S.H., alleging that Tamera had been granted primary physical custody of S.H. on April 21, 2008, and that since that time, she had cohabita-ted with persons of the opposite sex; was unemployed; had moved her residence at least six times since January 1, 2008; had been kicked out of her current home at least once; had made statements indicating that she wanted to move back in with the Herringtons to provide stability for S.H.; and had recently been released from drug rehabilitation. An ex parte emergency temporary order of guardianship, indicating that Tamera had subjected the minor child to unstable living conditions by cohabitating with members of the opposite sex and had no visible means of supporting the child, was entered on August 20, 2008. On October 1, 2008, the court entered a temporary order of guardianship continuing the Herringtons’ appointment as guardians of S.H. In the order, the court ordered unsupervised visitation for Tamera, supervised visitation for Scott, and mandatory drug testing for all parties to the action. The order noted that Tamera had recently married Tory Brickey.
At a hearing held on November 8, 2008, Tamera, who appeared pro se, consented to a permanent guardianship. Scott had waived appearance and consented to the guardianship previously. The court entered an order of guardianship on November 24, 2008, noting that Tamera had recently instituted divorce proceedings against Tory Brickey and that she was again residing with Scott. The order stated that “by agreement of the parties” the guardianship of S.H. was granted to the Herringtons.
On June 25, 2010, Tamera filed a petition to terminate guardianship asserting that the guardianship was no longer necessary; that it was in S.H.’s best interest for the guardianship |ato be terminated; that Tamera was withdrawing any consent she had given to the establishment of the guardianship; that Tamera was a fit parent who was ready and willing to care for S.H.; that failure to terminate the guardianship would violate Tamera’s common-law and constitutional rights to parent; that the guardianship statutes, specifically Ark.Code Ann. § 28-65-401, violated due process under the Fifth and Fourteenth Amendments to the United States Constitution and article 2, sections 8 and 21 of the Arkansas Constitution because the statutes do not require proper consideration of parental rights; and that because Tamera lived in Minnesota, termination of the guardianship was appropriate under Ark.Code Ann. § 28-65-401(b)(2). The Herringtons responded to the petition to terminate, denying Tamera’s claims, and filed a motion for psychological evaluations claiming that Tamera’s psychological fitness and ability to parent were in question. The Herringtons asked the court to direct that all interested parties — Larry, Donna, Tamera, and Tamera’s mother, Marcia Dally — submit to a psychological evaluation. Tamera objected to a psychological evaluation on the basis that she had not put her mental condition in controversy and that the Herringtons failed to show good cause to require an examination. Alternatively, Tamera asked the court to also require a mental evaluation of Scott Herrington and to allow Tamera to be evaluated near her home in Minnesota. The circuit court granted the motion for psychological evaluations.
|4The court held a hearing on the petition to terminate on April 8, 2011. Tamera testified that she lived in Minnesota in a house that she shared with her sister and that she worked as a certified nursing assistant in an elder-care facility. She acknowledged that she had agreed to the guardianship in 2008 and admitted that at that time, her life was unstable, she was not working, she lived with the Herring-tons, and she could not provide for S.H. financially. Tamera stated that when she consented to the guardianship, she believed that once she was stable, the guardianship would be terminated. Shortly after the permanent guardianship order was entered, Tamera moved back to Minnesota. On several occasions after the move, she visited S.H. in Arkansas and S.H. came to Minnesota to visit. However, after filing the petition to terminate the guardianship in August 2010, it became difficult to contact the Herringtons and schedule visitation. Tamera stated that since filing the petition, she was allowed to visit S.H. for about a week in February 2011. Tamera testified that she was not taking illegal drugs and had been voluntarily taking random drug tests in Minnesota.
Dr. Steven Shapse, who performed the psychological evaluation of Tamera, testified that he did not find any “red flags” with regard to her ability to be a fit par ent. Dr. Shapse stated that he followed standard procedure in conducting the evaluation, including a comprehensive interview, a battery of standardized tests, a consultation with Tamera’s current therapist, and a written report summarizing his evaluation. He testified that nothing in his findings suggested Tamera suffered from a mental health condition that would impair her | ^ability to parent, and she did not suffer from a major mental illness. Additionally, there was no indication of poor impulse control and nothing to suggest she was not within a normal spectrum of well-functioning individuals.
Larry Herrington testified that he and his wife, Donna, had been S.H.’s guardians for nearly three years and that during that time, S.H. had been potty-trained, learned to read and write, and participated in dance classes. He testified that in his opinion, S.H. had bonded with him and his wife. He stated that Donna took S.H. to school most mornings and picked her up; Donna also took S.H. to the majority of her doctors’ and counseling appointments. He testified that S.H. had been allowed to visit Tamera in Minnesota but that after the visits, S.H. was often distressed. Larry admitted that he was communicating less frequently with Tamera than he had been the year before and that he had purposefully decreased Tamera’s visitation with S.H. because her counselor had recommended that she not travel to Minnesota. He felt that Tamera was inconsistent and not prepared to be a parent.
Lesa Doan, a licensed social worker, testified that she had provided counseling services for S.H. since March 5, 2010. Doan stated that when she first saw S.H., she was clingy and had trouble using the restroom. Over the past year, she had made progress and developed better self-esteem. However, Doan noted that she became concerned in April 2010 after S.H. returned from a Minnesota visit and had three difficult bowel incidents. Doan stated that S.H. became more clingy during this time. Doan recommended to Larry that Tamera’s visits with S.H. take place in Arkansas and invited Tamera by letter to participate in S.H.’s therapy. Doan testified that additional setbacks included the manifestation of fear and threatening themes | ^during S.H.’s play therapy. Doan stated that once S.H. started school in the fall of 2010, she became more independent and outgoing. In her opinion, Doan believed it to be in S.H.’s best interest to continue living with her guardians.
At the close of the testimony, the court took the matter under advisement. On July 13, 2011, the circuit court entered an order denying the petition to terminate the guardianship, finding that as applied in this case, Ark.Code Ann. § 28-65-401(b)(3) was not an unconstitutional violation of due process under either the federal or state constitution; that Tamera carried the burden of proof in the termination proceeding; that the guardianship of S.H. was still necessary; and that termination of the guardianship would not be in her best interest at this time. The court ordered that Tamera’s visitation with S.H. be expanded as much as possible to create a stronger bond between mother and daughter, giving explicit instructions for such expansion, and that Tamera begin cooperating and participating in S.H.’s therapy sessions to whatever extent possible. Tamera filed a timely notice of appeal from the circuit court’s order on August 9, 2011.
I. Constitutionality of ArkCode Ann. § 28-65-4.01
In her first point on appeal, Tamera asserts that, as applied to her, the guardianship termination statute, codified at Ark.Code Ann. § 28-65-401, is uneonstitu- tional because it impinges on her fundamental liberty interest with respect to the care, custody, and control of her child as articulated in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Although Tamera contends that the statute violates due process as provided in both the federal and state constitutions, her argument focuses on the substantive due-process component of the | .¡.Fourteenth Amendment, and she makes no Arkansas-specific argument. Tamera urges this court to hold that a parent does not surrender her fundamental liberty right in raising her child when she agrees to a guardianship and cites cases from several states as persuasive authority. Moreover, Tamera argues that public policy supports the protection of a fit, natural parent’s constitutional liberty interest where that parent has agreed to a guardianship because it encourages a parent who may not be able to care for a child temporarily to seek what is in that child’s best interest yet still enjoy the presumption when she petitions to terminate that guardianship. Tamera avers that because Ark.Code Ann. § 28-65-401 impinges on a fundamental right, it is subject to a strict-scrutiny analysis. Even assuming that the state has a compelling interest in protecting children, Tamera contends that such an interest can be adequately protected by placing the burden of proof on the opponent of termination.
In their response, the Herringtons assert that although a parent has a fundamental liberty interest during an initial guardianship proceeding, the parent does not enjoy the full privilege in a proceeding to terminate that guardianship. They maintain that the present case is distinguishable from Troxel because Tamera has relinquished custody to nonparent guardians. The Herringtons advocate a rational-basis standard for reviewing the constitutionality of the termination statute. Further, they submit that a parent does not give up all constitutionally protected rights when consenting to a guardianship but that the parent does relinquish the parental presumption to control the care and custody of the child. The Herringtons cite Graham v. Matheny, 2009 Ark. 481, 346 S.W.3d 273, as the seminal Arkansas case on the issue of guardianship termination.
|sThis case presents us with an issue of first impression with regard to the application of a parent’s fundamental right to the care, control, and custody of his or her child within the framework of terminating a consensual guardianship. In Arkansas, all guardianship proceedings are governed by statute. Ark.Code Ann. §§ 28-65-101 to -604 (Repl.2012). Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. Paschal v. State, 2012 Ark. 127, at 8, 388 S.W.3d 429. If it is possible to construe a statute as constitutional, we must do so. Id. Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. Id.
A guardian is “one appointed by a court to have the care and custody of the person or of the estate, or of both, of an incapacitated person.” Ark.Code Ann. § 28-65-101(3) (Repl.2012). Before approving a guardian for a minor, the court must be satisfied that the guardianship is desirable to protect the interests of the minor and the person to be appointed guardian is qualified and suitable. Ark.Code Ann. § 28-65-210 (Repl.2012). The Arkansas General Assembly made clear that, in the case of original guardianship actions with respect to children, natural parents enjoy a preference in the law. Ark.Code Ann. § 28-65-204(a) (Repl.2012). Once established, a guardianship may be terminated by court order after notice as required by the court where the guardianship is no longer necessary or for the best interest of the ward. Ark.Code Ann. § 28-65-401(b)(8); see also Graham v. Matheny, 2009 Ark. 481, 346 S.W.3d 273 (clarifying the standard for courts in guardianship-termination proceedings).
In Linder v. Linder, we recognized a parent’s fundamental liberty interest in the care, |9controI, and custody of his or her child:
The Fourteenth Amendment provides in relevant part that “[No state shah] deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. 14 § 1. This language has been interpreted over the years to have both a procedural and substantive component. The substantive component of the due process clause protects “those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997).
One of the substantive components that has emerged from the Fourteenth Amendment’s guarantee of due process of law is the hberty right of a parent to have and raise children. Several cases from the United States Supreme Court have dealt with the contours of this right as it has emerged over recent decades.
348 Ark. 322, 342, 72 S.W.3d 841, 851 (2002). The Linder court analyzed in depth the holding of the United States Supreme Court in Troxel v. Granville, wherein Justice O’Connor, speaking for four Justices in a plurality decision, summarized the Court’s approach to governmental intrusions on the parent-child relationship:
[T]he interest of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply |innor hinder.” Id., at 166, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645.
In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children .... In light of this extensive prec edent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
Troxel, 530 U.S. at 65-66, 120 S.Ct. 2054. Moreover, the Supreme Court has recognized a parent’s fundamental liberty interest even in cases where the child is not in the parent’s custody. Santosky v. Kramer, 455 U.S. 745, 758, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (a parent’s “fundamental liberty interest ... in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State”). It is “ ‘plain beyond the need for multiple citation’ that a natural parent’s ‘desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right.’ ” Id. at 758-59, 102 S.Ct. 1388 (quoting Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). In Linder, we adopted the Troxel plurality’s ruling that a fit parent is presumed to be acting in a child’s best interest. Linder, 348 Ark. at 350-52, 72 S.W.3d at 856-58; see also Troxel, 530 U.S. at 68, 120 S.Ct. 2054; Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979).
It is manifest that prior to the installation of the guardianship, Tamera, as S.H.’s natural mother who had not been deemed unfit, was entitled to the presumption that she was acting in the child’s best interest. However, in this case, we must determine whether Tamera retained that fundamental right, and consequently, the presumption, when she consented to the guardianship and gave up custody of her child. Although we have never addressed the issue, the overwhelming majority of jurisdictions that have considered it have held that |nparents do not relinquish their fundamental liberty interest upon consenting to a guardianship. See, e.g., In re D.I.S., 249 P.3d 775, 781-82 (Colo.2011) (concluding that where the parent had consented to the guardianship and now sought termination of it, the trial court was required to give “special weight” to the parent’s decision to terminate); In re Marriage of Dafoe, 324 Ill.App.3d 254, 257 Ill.Dec. 761, 754 N.E.2d 419, 423-24 (2001) (“[I]n order to retain custody of a child [through a guardianship] over the superior right of the natural parent, a third party must demonstrate good cause or reason to overcome the presumption that a parent has a superior right to custody, and the third party must also show that it is in the child’s best interests that the third party be awarded the care, custody, and control of the child.”); In re Guardianship of L.L. & J.L., 745 N.E.2d 222 (Ind.Ct.App.2001) (although based on the common-law doctrine of natural-parent preference, addressing constitutional implications in holding that the nonparent third party bears the burden of overcoming the natural-parent presumption by clear and cogent evidence); In re Guardianship of Zachary Blair, 662 N.W.2d 371 (Iowa Ct.App.2003) (upholding guardianship statutes as constitutional where they clearly establish preference for placement with natural parent, require a finding that the natural parent is unsuitable and not qualified prior to placement with a third party, and burden is always on nonparent to rebut the natural-parent presumption in initial guardianship appointment, modification, and termination); In re Guardianship of Williams, 254 Kan. 814, 869 P.2d 661 (1994) (relying on longtime common-law parental-preference doctrine to reverse denial of petition to terminate where natural parent had not been deemed unfit); In re Guardianship of Jeremiah T., 976 A.2d 955 (Me.2009) (recognizing a parent’s constitutional right to care and custody of a child and | j Requiring guardian to prove that natural parent is unfit and continuing guardianship is in the best interest of child); In re Guardianship of D.J., 268 Neb. 289, 682 N.W.2d 288, 246 (2004) (holding that the best interest of the child is subject to the overriding principle that the relationship between parent and child is constitutionally protected); In re Guardianship of Reena D., 163 N.H. 107, 35 A.3d 509 (2011) (based solely on state constitutional grounds, joining the majority of jurisdictions that Troxel rights apply where parent has consented to guardianship and placing burden of proof on guardians opposing termination); In re Guardianship of Barros, 701 N.W.2d 402 (N.D.2005) (concluding that because a natural parent has a fundamental right to custody, in a termination-of-guardianship proceeding, natural parent must prove by a preponderance that conditions requiring guardianship have been removed and then burden shifts to guardians to rebut presumption that parental custody is in the best interest of the child); Boisvert v. Harrington, 173 Vt. 285, 796 A.2d 1102 (2002) (recognizing that a parent’s fundamental liberty interest requires that, in seeking to terminate a guardianship, the parent enjoy a presumption that his or her custody is in the child’s best interest); In re SRB-M, 201 P.3d 1115 (Wyo.2009) (concluding that constitutional protection of a parent’s fundamental right to parent required a finding of parental unfitness in order to continue an established guardianship over a parent’s objection). But see In re Guardianship of L.V., 136 Cal.App.4th 481, 38 Cal.Rptr.3d 894 (2006) (holding that parents who are not participating in the day-to-day parenting of the minor are not entitled to constitutional protections and that the test in termination proceedings is the best interest of the child); In re Guardianship of M.R.S., 960 P.2d 357 (Okla.1998) (holding that where a natural parent seeks termination of a consensual guardianship, the presumption |13that termination is in the best interest of the child does not arise until the natural parent proves that the impediments that led to the guardianship have been removed and the court is satisfied that parent is fit and placement with the parent would not be harmful); Grant v. Martin, 757 So.2d 264 (Miss.2000) (holding that where a natural parent voluntarily relinquishes custody of a minor child, including guardianship, that parent forfeits the right to rely on the common-law presumption in favor of the natural parent); Blair v. Badenhope, 77 S.W.3d 137 (Tenn.2002) (holding that where a parent consents to awarding custody to a nonparent, the parent cannot later petition to change custody and claim a superior right as a natural parent).
Several of the states that have applied the Troxel presumption in proceedings to terminate a consensual guardianship have done so to serve important public-policy concerns. For instance, the Colorado Supreme Court explained,
An important characteristic of a guardianship by parental consent is that parents have exercised their fundamental right to place their child in the custody of another for purposes of furthering the child’s best interests. Failure to accord fit parents a presumption in favor of their decision to terminate a guardianship established by parental consent would penalize their initial decision to establish the guardianship and deter parents from invoking the guardianship laws as a means to care for the child while they address significant problems that could impair the parent-child relationship or the child’s development.
In re D.I.S., 249 P.3d at 783 (internal citations omitted); see also In re Guardianship of D.J., 682 N.W.2d at 246; In re Guardianship of Reena D., 35 A.3d at 513-14. In Devine v. Martens, we expressed similar public-policy concerns. 371 Ark. 60, 74, 263 S.W.3d 515, 526 (2007) (“Just as the Arkansas Juvenile Code recognizes the efforts of parents in dependency-neglect actions to improve their homes and parenting skills, we should encourage and recognize such | ¶ improvements by parents in guardianship actions.”).
We align ourselves with the majority view and hold that parents who have not been found unfit do not relinquish their fundamental liberty interest in raising their children by consenting to a guardianship and, thus, they are entitled to the Troxel presumption in a proceeding to terminate that guardianship. We resolve that this conclusion best comports with the constitutional right of parents, the temporal nature of guardianships, and public policy.
Next, we must turn to whether the termination statute at issue, as applied to Tamera, violated her fundamental right to the care, control, and custody of her child. A statute that infringes on a fundamental right is subject to strict-scrutiny review, and the statute cannot survive unless “a compelling state interest is advanced by the statute and the statute is the least restrictive method available to carry out [the] state interest.” Paschal, 2012 Ark. 127, at 11-12, 388 S.W.3d at 437; see also Linder, 348 Ark. at 347-49, 72 S.W.3d at 855-56.
Although the circuit court stated in its order that it “firmly believe[s] it is both the natural and preferable order of things that a child should be raised by her parents,” it made clear that in “the final analysis, [the child’s] best interest must be the court’s primary concern.” It is evident from the court’s findings that Tamera’s status as natural parent was afforded no weight in the decision. Rather, the best interest of S.H. was the controlling factor in deciding whether to terminate the guardianship, and the circuit court specifically saddled Tamera with the burden of proving both that the guardianship was no longer necessary and that termination was in S.H.’s best interest. Tamera was required to carry this burden irrespective of the fact that her fitness had never been at issue and she had consented to the initial | ^guardianship. As such, even assuming that the termination statute advanced a compelling interest of protecting children who had become stable in their guardianship environment, the statute was not applied to Tamera in the least restrictive available method where there was no weight given to her decision to terminate despite the presumption that she acts in her child’s best interest.
Therefore, we hold that the application of Ark.Code Ann. § 28-65-401 in this instance violated Tamera’s constitutional right. A natural parent who has not been deemed unfit is entitled to the presumption that he or she is acting in the child’s best interest, even after consenting to a guardianship. Therefore, when a natural parent, who has not been deemed unfit and who has consented to a guardianship, files a petition to terminate that guardianship, that parent must put forth evidence that the guardianship is no longer necessary. Once the court is satisfied that the conditions necessitating the guardianship have been removed, the guardians shoulder the burden of rebutting the presumption that termination is in the child’s best interest. We reverse and remand for the circuit court to address Tamera’s petition in light of our holding.
II. Denial of Petition to Terminate Guardianship
Because we hold that the guardianship-termination statute is unconstitutional as applied to Tamera, we need not address whether the circuit court clearly erred in finding that the guardianship was still necessary and that termination of it was not in S.H.’s best interest.
III. Psychological Evaluation
Next, Tamera argues that the circuit court erred in granting the Herringtons’ motion 116for psychological evaluation over her objection. Specifically, she asserts that the court’s order was not authorized by Rule 35 of the Arkansas Rules of Civil Procedure because her mental condition was not in controversy and good cause was not shown. She relies principally on Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), the pivotal case construing the substantially similar Federal Rule of Civil Procedure 35(a).
A trial court has broad discretion in matters pertaining to discovery, and the exercise of that discretion will not be reversed by this court absent abuse of discretion that is prejudicial to the appealing party. Loghry v. Rogers Group, Inc., 348 Ark. 369, 72 S.W.3d 499 (2002). To have abused its discretion, the circuit court must not only have made an error in its decision, but also must have acted improvidently, thoughtlessly, or -without due consideration. Chapman v. Ford Motor Co., 368 Ark. 328, 245 S.W.3d 123 (2006). Arkansas Rule of Civil Procedure 35 provides in relevant part:
(a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical examination by a physician or a mental examination by a physician or a psychologist or to produce for the examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.
Ark. R. Civ. P. 35(a) (2011). In Schlagen-hauf, the Supreme Court explained,
Rule 35, therefore, requires discriminating application by the trial judge, who must decide, as an initial matter in every case, whether the party requesting a mental or physical examination or examinations has adequately demonstrated the existence of the Rule’s requirements of “in controversy” and “good cause,” which requirements, as the Court of Appeals in this case itself recognized, are necessarily related. This does not, of course, mean that the movant must prove his case on the merits in order to 117meet the requirements for a mental or physical examination. Nor does it mean that an evidentiary hearing is required in all cases. This may be necessary in some cases, but in other cases the showing could be made by affidavits or other usual methods short of a hearing. It does mean, though, that the movant must produce sufficient information, by whatever means, so that the district judge can fulfill his function mandated by the Rule.
379 U.S. at 118-19, 85 S.Ct. 234 (1964) (internal citations omitted).
In their motion, the Herringtons alleged that Tamera was unstable and that an examination was necessary to assess her mental and emotional capabilities prior to allowing the ward to be returned to her custody. They submitted that Tamera had “exhibit[ed] behaviors which bring her psychological fitness, and ability to parent into question.” As examples, they listed Tamera’s relationship history, including a short six-month marriage, moving in and out of homes with men to whom she was not married, and her failure to communicate with S.H. for a six-week period. Although the allegations asserted in the motion are not especially demonstrative of mental instability, the circuit court found that psychological evaluations would be “beneficial to the court in reaching a decision on the ultimate issues in this case, i.e., the best interest of [S.H.]”
In this instance, the circuit court failed to make the appropriate finding required by Rule 35 to warrant psychological evaluation—namely, that Tamera’s mental condition was in controversy and that the Herringtons had shown good cause to warrant an invasive psychological examination. Rather, the circuit court simply found that having a psychological evaluation would be beneficial to the court. Although it may be argued that the mental health of parents or guardians is always an issue in cases involving the placement of children, we conclude that the circuit court abused its discretion where it did not apply the correct legal |1sstandard in evaluating the motion for psychological evaluation. As such, we reverse and remand on this issue.
IV. Evidentiary Issue
For her last point on appeal, Tamera maintains that the circuit court erred in admitting into evidence the written report of Lesa Doan summarizing her clinical involvement with S.H. and the written report of Dr. Shapse after his psychological examination of Tamera. She claims that those written documents constituted inadmissible hearsay, that the Herringtons provided no basis for an exception to the rule, and that the admitted evidence prejudiced her because the circuit court relied extensively on information from those reports in its written order denying the petition to terminate. The trial court has broad discretion in its evidentiary rulings; hence, the trial court’s admission of evidence will not be disturbed on appeal unless there has been a manifest abuse of discretion. S. Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112, 118 S.W.3d 525 (2003).
As a threshold matter, we note that Tamera never formally objected to the introduction of Dr. Shapse’s report. Although the circuit court noted in its order denying the petition to terminate that Tamera was reluctant to introduce the written report, she failed to lodge an objection when the report was offered into evidence. The record reflects that after Tamera called Dr. Shapse on rebuttal, the court inquired as to whether Tamera wanted to offer Dr. Shapse’s written report into evidence, and the following colloquy occurred:
HeRringtons’ Attorney: Well, Your Honor, I was under the impression the Court had the psychological anyway. So, I mean they were forwarded here first, I assume. I know the ones on Mr. and Ms. Herrington were. I don’t know about Ms. Troeskyn’s.
[ 19Tamera’s Attorney.- No, Your Honor. Obviously that’s, you know, why we had Dr. Shapse here because the report itself, in my view, was hearsay.
Court: Well, you don’t want to put his report in?
Tamera’s ATTORNEY: I think we covered in evidence—
Court: Okay. All right.
Tamera’s Attorney: testimony the pertinent portion of the—
Court: That’s fíne. When I go back and review my notes and exhibits it is often very helpful to the Court to be able to go and review a written report, assuming that the testimony that has been given concerning the report is the same thing that is in the written report. Tamera’s Attorney: If the Court — Your Honor, I will be glad to introduce— Court: I am not going to tell you how— what to do—
Herringtons’ Attorney: I would move for the introduction of the psychological evaluation of Ms. Troeskyn, as Defendant’s Exhibit Number Two for today. Does the Court have a copy or do I need to provide my copy?
Herringtons’ Attorney: Or do you have an extra copy?
Tamera’s Attorney: I have one somewhere.
Thereafter, Dr. Shapse’s written report was introduced into evidence.
"Unless a party has no opportunity to object to a ruling of the court, an objection must be made at the time of the ruling, and the objecting party must make known to the court the action desired and the grounds of the objection. Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989). Here, although Tamera indicated it was her belief that the written report [ 2nconstituted hearsay, she failed to timely object when the report was offered into evidence. It is well settled that this court will not consider arguments raised for the first time on appeal. Ford Motor Co. v. Ark. Motor Vehicle Comm’n, 357 Ark. 125, 161 S.W.3d 788 (2004). Thus, we are precluded from reviewing the merits of her argument as to Dr. Shapse’s report.
As to Lesa Doan’s report, Tamera did make a timely and specific hearsay objection to its introduction. She claimed that because Doan was present to testify, her report was hearsay, that the Herringtons failed to articulate a proper exception to hearsay, and that it was error for the circuit court to allow the written report into evidence. While we agree that the report constituted hearsay, we hold that the admission of the report does not warrant reversal. Where hearsay evidence is improperly admitted, but the same evidence is properly admitted through another source, there is no reversible error. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995). We will not reverse a circuit court’s admission of evidence in the absence of a showing of prejudice. Aka v. Jefferson Hosp. Ass’n, 344 Ark. 627, 42 S.W.3d 508 (2001). Here, Tamera was not prejudiced from the admission of the report itself because Doan testified at length during the hearing with regard to the contents of the report. As to any statements made by S.H. that were included in the report, those statements were not hearsay because they were not offered for the truth of the matters asserted but to show the basis for Doan’s conclusions and recommendation. Therefore, we affirm on this point.
Reversed and remanded in part; affirmed in part.
CORBIN, BROWN, and GOODSON, JJ., concur in part and dissent in part.
. The Attorney General was notified of the attack on the constitutionality of the guardianship statute as required by Ark.Code Ann. § 16 — 111—106(b) but declined to intervene in the action.
. The hearing was continued twice on behalf of the Herringtons over Tamera's objection. | [
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JOSEPHINE LINKER HART, Judge.
This is a suit on a promissory note and guaranty. The Lonoke County Circuit Court granted summary judgment to ap-pellee, Murphy Oil USA, and awarded Murphy $179,998.63, which included accrued interest, and attorney’s fees of $37,857.12, jointly and severally against appellants, U.S. Fuel International, Inc.; Troutman Oil Co.; and Toby and Jodie Troutman. On appeal, appellants contend that the circuit court erred (1) in not finding that the appellants were relieved as signers and guarantors of the note because of a novation; (2) in finding that the Trout-mans’ response to summary judgment did not extend the time for Troutman Oil to respond to summary judgment; (3) in finding that the guarantee of an “underlying agreement” obligated the guarantors to pay when the underlying agreement is not defined or shown by exhibits; and (4) in awarding attorney’s fees because there was insufficient evidence to support such an award. Finding no error, we affirm.
US Fuel is a subsidiary of Troutman Oil. Toby Troutman was the president of both corporations. On November 9, 2005, Toby Troutman and Jodie Troutman executed a “Guaranty of Payment and Performance and Indemnity Agreement” (Guaranty Agreement) with Murphy whereby they personally guaranteed payment by U.S. Fuel “dba Troutman Oil Co., Inc.” The Guaranty Agreement referred to the purchase of petroleum products or merchandise from Murphy by U.S. Fuel as the “underlying agreement.” It also stated that it was an absolute and continuing guarantee that applied to all obligations owed by U.S. Fuel at the time that the Guaranty Agreement was executed, as well as future obligations created after that time. The Guaranty Agreement further provided that
no renewal, extensions or rearrangements or any other indulgence with respect to [US Fuel’s] Obligations, ... no release of or substitution for any security or other guaranty now or hereafter held by Murphy for payment of [US Fuel’s] Obligations, ... no release of [US Fuel] or of any other person primarily or secondarily liable on [US Fuel’s] Obligations, ... (including any maker, endorser, guarantor, or surety), no delay in enforcement of payment of [US Fuel’s] Obligations, ... and no delay, omission or lack of diligence or care in exercising any right or power with respect to [US Fuel’s] Obligations, or any security therefor, including impairment of collateral, or guaranty thereof or under this Guaranty, shall in any manner impair or affect the rights of Murphy or the duties and/or liabilities of [the Troutmans] hereunder.
The Troutmans waived any suretyship defenses they might have. The Guaranty Agreement also stated that
no amendment, modification, termination or waiver of any provision of this Guaranty, nor consent to any departure by [the Troutmans] therefrom, shall in any event be effective unless the same shall be in writing and signed by Murphy, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
The expiration date of the Guaranty Agreement was December 31, 2019, unless either party terminated the agreement pri- or to that date.
On January 28, 2009, Toby Troutman, as president of U.S. Fuel, executed a promissory note in favor of Murphy in the amount of $188,541.25. Monthly payments of $5000 were to begin on February 1, 2009, and continue through January 1, 2010. A balloon payment of $128,541.25 was due on February 1, 2010. If payments were made as scheduled, no interest would be due; otherwise, interest would be charged from the date of the note and based on the Federal Reserve Discount Rate plus five percent. The note also provided for payment of attorney’s fees.
On August 31, 2009, Murphy sued U.S. Fuel, Troutman Oil, and the Troutmans, alleging that U.S. Fuel had defaulted on the note and that the Troutmans’ Guaranty Agreement applied to this obligation. Murphy sought payment of $162,541.25, costs, pre-and post-judgment interest, and attorney’s fees.
The Troutman defendants answered, denying the material allegations of the complaint. They averred that U.S. Fuel was a Nevada corporation and that its charter had been revoked. They also asserted that Troutman Oil had never purchased goods from Murphy. The Troutman defendants also alleged that there was no underlying agreement, that the Guaranty Agreement did not apply because it did not mention a note, and that the note sued upon did not exist at the time of the execution of the Guaranty Agreement.
Murphy later amended its complaint against U.S. Fuel and the Troutman defendants. In addition to the original allegations, it also alleged that a second guaranty agreement had been executed in September 2006 whereby Troutman Oil guaranteed payment for purchases made by U.S. Fuel. The Troutman defendants again answered, incorporating their earlier answers. They also denied the existence of the two guaranty agreements and the note.
Murphy filed a motion for summary judgment against all of the defendants. In addition to a supporting brief, Murphy also submitted an affidavit of Laura Brown, the general manager of Murphy’s credit department. Brown set forth the .Guaranty Agreement, the note, and the payments made on the note. She stated that balance due as of the date the complaint was filed, August 31, 2009, was $162,541.25. The balance had grown to $179,998.63 as of the filing of the motion for summary judgment.
The Troutmans, but not Troutman Oil, timely filed a response to the motion, asserting that the “underlying agreement” was not established and that the issue of liability on that agreement was an outstanding issue remaining for trial. Several months later, on June 7, 2011, the Troutman defendants, including Troutman Oil, filed an amended response to the motion to assert that the note worked a no-vation so as to substitute for the prior obligations up to that point. They also asserted that the Troutmans’ guaranty did not apply because the note was Rnot in existence at the time of the guaranty. They further asserted that Troutman Oil was not liable for the note. The amended response was also captioned a cross-motion for summary judgment. Attached as an exhibit was the affidavit of Toby Troutman, who stated that Troutman Oil did not make any purchases from Murphy and did not sign the note.
The Troutman defendants also filed an answer to the amended complaint. The amended answer stated that the Troutman defendants “incorporate their prior answers as filed in this Court with the exception that [they] allege novation as [Murphy] pointed out in its June 21, 2011 brief that novation had not been pleaded.” Murphy raised the issue of Troutman Oil’s response not being timely because it did not originally respond to Murphy’s motion for summary judgment.
At the hearing on the motion for summary judgment, the Troutman defendants argued that the 2009 note worked a novation as to the Troutmans’ personal guaranty. The circuit court ruled from the bench, denying the claim that a novation occurred. The court granted summary judgment against U.S. Fuel and the Trout-man defendants. In its written order, the circuit court found all the defendants jointly and severally liable to Murphy in the sum of $179,998.63, which included accrued interest. The court also awarded Murphy attorney’s fees and costs of $37,857.12. The Troutman defendants timely filed their notice of appeal.
On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Harvest Rice, Inc. v. Fritz & Mertice Lehman Elevator & Dryer, Inc., 365 Ark. 573, 231 S.W.3d 720 (2006). We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
For their first point, the Troutman defendants argue that the execution of the note by U.S. Fuel worked a novation so that the Troutmans’ personal guaranty was extinguished. The circuit court found that a novation had not been established.
“Novation” is the substitution by mutual agreement of one debtor, or one creditor, for another, whereby the old debt is extinguished, or the substitution of a new debt or obligation for an existing one, which is thereby extinguished. Barton v. Perryman, 265 Ark. 228, 577 S.W.2d 596 (1979); Harrison v. Benton State Bank, 6 Ark.App. 355, 642 S.W.2d 331 (1982). The burden of establishing a novation is upon the party claiming it. McIllwain v. Bank of Harrisburg, 18 Ark.App. 213, 713 S.W.2d 469 (1986). For there to be a novation, it is necessary to show an intent on the part of the creditor to release an old debtor and substitute a new debtor. Id. There must be a clear and definite intention on the part of all concerned that such is the purpose of the agreement. Id.
The novation argument in this case fails. First, the Guaranty Agreement specifically provided that any modification must be in writing and signed by Murphy. The letter relied on by the Troutman defendants to support their argument expresses Murphy’s intention that the Trout-mans remain liable when it asks the Troutmans for their personal financial statements. Moreover, the Troutmans agreed that there would be no release or substitution of their guaranties, or release of U.S. Fuel’s obligations except by payment. Such a provision does not discharge the guarantor and will be honored. Morrilton Sec. Bank v. Kelemen, 70 Ark.App. 246, 16 S.W.3d 567 (2000). The Guaranty Agreement broadly covered all obligations by U.S. Fuel at the time of the execution of the Guaranty Agreement or thereafter incurred.
In their second point, the Troutman defendants argue that the response to the motion for summary judgment filed by Toby and Jodie Troutman should inure to the benefit of Troutman Oñ. We disagree.
In support of their argument, the Troutman defendants cite several cases dealing with the “common defense rule,” whereby an answer asserting common defenses will inure to the benefit of other, non-answering defendants so as to prevent the entry of default judgments against them. See, e.g., Liberty Life Ins. Co. v. Forsythe, 25 Ark.App. 147, 752 S.W.2d 305 (1988). However, this is not a situation where the “common defense rule” applies because it is not the failure to timely respond to the motion for summary judgment that led the circuit court to grant the motion. Rather, summary judgment was granted because the circuit court concluded that it was clear that there were no genuine issues of material fact to be litigated and that Murphy was entitled to judgment as a matter of law. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969).
Unless the court reduces or enlarges the periods upon a showing of good cause, the party against whom a motion for summary judgment has been made must serve a response and any supporting materials within twenty-one days after service of the motion. Ark. R. Civ. P. 56(c)(1). Supplemental supporting materials may not be submitted after the time for serving a reply, unless the court orders otherwise. Id.; see also Foscue v. McDaniel, 2009 Ark. 223, 308 S.W.3d 122. If a response or reply is untimely, the court need not consider it. Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598, 210 S.W.3d 101 (2005).
The Troutman defendants next argue for their third point that the circuit court erred in granting summary judgment to Murphy because the “underlying agreement” was never defined or established by the evidence. There is no merit to this argument because the “underlying agreement” was defined in the Guaranty Agreement in the following language:
for the farther consideration that Murphy sell and deliver to: US Fuel International Inc. ... (herein referred to as “Purchaser”), on such basis ... as may, from time to time, be set by Murphy, petroleum products and/or merchandise in such quantities as said Purchaser may, from time to time, order from or contract for with Murphy (hereinafter sometimes referred to as the “Underlying Agreement”)....
Counsel for the Troutman defendants recognized as much in the hearing on the motion for summary judgment.
For the fourth and final point, the Troutman defendants argue that the circuit court erred in awarding Murphy its attorneys fees. Specifically, they argue that there was no evidence as to the factors our supreme court set forth in Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). We disagree.
An award of attorney’s fees will not be set aside absent an abuse of discretion by the circuit court. Estate of Coan v. Gaughan, 2010 Ark. App. 616, 378 S.W.3d 201. While the decision to award attorney’s fees and the amount awarded are reviewed .under an abuse-of-discretion standard, we review factual findings made by the circuit court under a clearly erroneous standard of review. Id.
Murphy’s attorney submitted an affidavit with its motion that averred that the attorney had been licensed to practice for seven years and that the total fee requested was $35,637.50, together with costs of $2,219.62. After the Troutman defendants raised the issue of evidence to support the Chrisco factors, counsel for Murphy submitted a reply and a supplemental affidavit setting forth evidence to support those factors. Here, the Trout-man defendants focus on whether there is evidence to support an analysis of the Chrisco factors rather than the reasonableness of the fees. It is only in their reply brief that they acknowledge the supplemental affidavit filed by counsel, and, then, only to argue that evidence is still lacking on some of the factors. Due to the circuit court’s intimate acquaintance with the record and the quality of service rendered, we typically recognize the superior perspective of the circuit court in assessing the applicable factors. Phi Kappa Tau Hous. Corp. v. Wengert, 350 Ark. 335, 86 S.W.3d 856 (2002). Under these circumstances, we cannot say that the circuit court abused its discretion in its award of attorney’s fees.
Affirmed.
PITTMAN and WYNNE, JJ„ agree.
. Although U.S. Fuel is listed as an appellant, it appears that all the arguments are being made on behalf of Troutman Oil and the Troutmans. We sometimes refer to Troutman Oil, Toby Troutman, and Jodie Troutman collectively as the Troutman defendants.
. The second guaranty agreement is actually referring to a "Certificate of Corporate Resolutions,” which provides that the board of directors of Troutman Oil adopted a resolution on September 19, 2006, whereby Trout-man Oil unconditionally guaranteed payment of all purchases made by U.S. Fuel, whether evidenced by open account, trade acceptance, note, or otherwise. The resolution also referred to U.S. Fuel as a subsidiary of Trout-man Oil.
. Attached to Murphy’s reply to the Trout-mans' response is a letter from the Troutmans to Murphy. The letter states that both U.S. Fuel and Troutman Oil ceased doing business as of December 31, 2007. The letter also advised Murphy that the Troutmans were terminating their obligations under the Guaranty Agreement. | [
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JOHN B. ROBBINS, Judge.
|; This is the second appeal in this case. Appellant Paul Schmidt brought an action against appellee Gary Stearman, Sr., for conversion, trespass, and the tort of outrage. In the first trial, the trespass and outrage counts were dismissed by directed verdict, and the conversion count went to a jury, which found in favor of Mr. Stear-man. Mr. Schmidt appealed, seeking a new trial on his conversion claim, and reversal of the directed verdicts on trespass and outrage. Mr. Schmidt further assigned error to the trial court’s exclusion of certain evidence and its refusal to give two of his proffered jury instructions.
In the first appeal, Schmidt v. Stearman, 98 Ark. App. 167, 253 S.W.3d 35 (2007), we affirmed the directed verdicts on trespass and outrage, and we also affirmed the trial court’s evidentiary rulings and refusal to give the proffered jury instructions. However, we reversed |2and remanded for a new trial on Mr. Schmidt’s conversion action on the basis that the elements of conversion were proven beyond dispute, and thus the jury’s verdict in favor of Mr. Stearman was not supported by substantial evidence. We recognized in the first appeal that there was evidence that the converted property had been returned to Mr. Schmidt, but we nonetheless held that this would not have negated the conversion. We explained:
Thus, the jurors in this case, if they gave credence to the Stearmans’ return of the property, were constrained to fill out their verdict form in favor of Schmidt on conversion but award a reduced amount, possibly zero, in damages. The return of property could not support the jury’s outright finding in favor of Stearman, which amounts to a finding that no conversion took place.
98 Ark. App. at 177, 253 S.W.3d at 43.
Pursuant to our instructions on remand, a new trial was held only on Mr. Schmidt’s conversion claim. At the conclusion of the second jury trial, the jury found in favor of Mr. Schmidt on his conversion claim and awarded $500 in compensatory damages and $1000 in punitive damages. Unsatisfied with these awards, Mr. Schmidt now brings this second appeal.
For reversal, Mr. Schmidt raises three arguments. First, he argues that the trial court erred in precluding him from introducing evidence of the fair market value of his five dogs and that Mr. Stearman had shot and killed them on the property where the conversion occurred. Next, Mr. Schmidt takes issue with some of the trial court’s comments made in the presence of the jury. Finally, Mr. Schmidt contends that the trial court erred in allowing | ajury instructions on the statutes pertaining to unlawful detainer and criminal possession of real property. We affirm.
We set forth the elements of conversion in our first opinion as follows:
Conversion is a common-law tort action for the wrongful possession or disposition of another’s property. Buck v. Gillham, 80 Ark. App. 375, 96 S.W.3d 750 (2003). The tort of conversion is committed when a party wrongfully commits a distinct act of dominion over the property of another that is inconsistent with the owner’s rights. Id. The intent required is not conscious wrongdoing but rather an intent to exercise dominion or control over the goods that is in fact inconsistent with the plaintiffs rights. Id. A person can be held liable to the true owner of stolen personal property for conversion notwithstanding that he or she acted in the utmost good faith and without knowledge of the true owner’s title. Id.
Schmidt, 98 Ark. App. at 173-74, 253 S.W.3d at 41.
The testimony in the second trial was substantially the same as the first trial with regard to Mr. Schmidt’s conversion claim. Mr. Schmidt lived on a 458-acre farm in Washington County, which he leased from Farm Services Agency (FSA) for a five-year period ending in February 2003. However, Mr. Schmidt continued to occupy the property and lived in the house after expiration of the lease, pursuing administrative remedies to enforce what he believed was an agreement by FSA to allow him to repurchase the farm. Those efforts would ultimately prove unsuccessful. In July 2004, FSA quitclaimed the farm to Travis Stearman, the son of appel-lee, Gary Stearman. Mr. Schmidt considered this sale unauthorized and stayed on the land.
There was disputed testimony as to whether Mr. Schmidt had agreed to pay Travis Stearman rent after Travis Stear-man bought the property. Mr. Schmidt denied any such ^agreement. However, Travis Stearman testified that Mr. Schmidt had agreed to pay $200 in monthly rent, which was never paid. As a result of the rent not being paid, Travis Stear-man decided to pursue eviction proceedings against Mr. Schmidt. At his son’s request, Gary Stearman hired an attorney and a process server, and the process server posted an eviction notice on Mr. Schmidt’s house on February 23, 2005. The notice informed him that he must vacate within twenty days or litigation would be commenced seeking his forcible removal.
Mr. Schmidt testified that he was initially unaware of the eviction notice, and that he and his girlfriend, who also lived on the property, went on vacation. Before doing so, they left food for Mr. Schmidt’s five dogs, and the dogs could drink from a nearby spring. When Mr. Schmidt returned in early or mid-April, Mr. Schmidt had to restore the electricity and water to the house, which had been cut off. It was then that Mr. Schmidt found the eviction notice. Mr. Schmidt contacted his attorney, who wrote a letter to Gary Stear-man’s attorney on April 15, 2005, advising that Mr. Schmidt had not agreed to pay rent, that he had a right to live on his homestead, and that he considered the sale of the property to Travis Stearman illegal.
Mr. Schmidt testified that he and his girlfriend went on another short trip and returned on April 17, 2005. When they returned, Mr. Schmidt discovered that nearly 100 items had been removed from his house. He testified that the house had been “trashed.” Mr. Schmidt contacted the sheriff and expressed his suspicion that Gary Stearman was involved, but the sheriff considered it a civil matter and did not arrest Mr. Stearman. Mr. Schmidt made an | sitemized list of everything allegedly taken with fair-market values for each item, and while he conceded that some of the items had been returned to him, he estimated the aggregate value of the unre-turned items at $122,000.
Gary Stearnian admitted that he arranged for the personal property to be removed. However, he indicated that he did so only because it appeared that the farm had been abandoned. Gary Stearni-an told his ex-wife, Teresa Stearnian, that she could help herself to any items on the property and that he intended to doze the house down. He also acknowledged that he had a mechanic remove a tie rod from an old Mack truck on the property. Mr. Schmidt estimated the value of the tie rod at $500. Mr. Stearnian testified that the only removed item that he personally had in his possession was the tie rod, and that when he found out that Mr. Schmidt was still living there he advised the sheriff that all of the items would be returned to Mr. Schmidt.
Teresa Stearnian testified that she took three truck loads of personal property from the farmhouse based on Gary Stear-man’s representation that the property had been abandoned. Ms. Stearnian stated that when she went there the house appeared abandoned, as there was no place to sleep or sit and it was in disarray. She said that she would not have entered the property and taken the items had she known that it was not abandoned, and that she was embarrassed when she found out that Mr. Schmidt wanted the items back. According to Ms. Stearnian, she only took about one-fourth of what Mr. Schmidt claimed had been removed, and she maintained that she returned everything that she had taken.
| Jn the previous trial, Gary Stearman testified that, upon finding the property in what he thought was an abandoned condition, he shot and killed Mr. Schmidt’s five dogs. He explained that he killed the dogs because he did not want to see them starve, and also because he feared that the dogs might turn wild and cause problems. At the conclusion of the first trial, the trial court granted Mr. Stearman’s motion for directed verdict on the issue of conversion of Mr. Schmidt’s dogs because Mr. Schmidt failed to introduce any evidence of the value of the dogs. This directed verdict was not challenged in the first appeal.
In this appeal, Mr. Schmidt’s first argument is that the trial court erred in precluding him from introducing evidence of the fair market value of his dogs and the fact that Mr. Stearman shot and killed them. Prior to trial, Mr. Stearman filed a motion in limine to exclude such evidence, and the trial court granted the motion. The trial court reasoned that because a directed verdict was entered in the first trial on the issue of the conversion of the dogs, and that the directed verdict was not appealed, the conversion of the dogs could not be relitigated in the second trial. The trial court further excluded evidence about the shooting of the dogs pursuant to Arkansas Rule of Evidence 403, on the basis that any probative value of the evidence was substantially outweighed by the danger of unfair prejudice.
A trial court is accorded wide discretion in evidentiary rulings, and will not be reversed on such rulings absent an abuse of discretion. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999). Mr. Schmidt proffered evidence of the fair market value of his dogs, and asserts that the trial court abused its discretion in refusing to admit such evidence along with the fact that |7Mr. Stearman killed them. Mr. Schmidt concedes that at the conclusion of the first trial the trial court properly directed a verdict as to conversion of the dogs because there was no evidence of the value of the dogs. However, he maintains that this does not preclude such proof on retrial, because the evidence and testimony at the second trial may differ from that of the first trial. In addition to proving his conversion claim as to the dogs, Mr. Schmidt argues that this evidence should have been admitted on the issue of punitive damages to show Mr. Stearman’s malicious intent. Moreover, Mr. Schmidt submits that evidence of the shootings was relevant to show that he was afraid of Mr. Stearman and explained why he moved out of the farmhouse after the conversion.
We hold that the trial court properly refused to allow Mr. Schmidt to pursue his conversion claim regarding his dogs in the second trial because that issue was foreclosed by the law-of-the-case doctrine. The doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). The doctrine serves to effectuate efficiency and finality in the judicial process. Id. It provides that a decision of an appellate court establishes the law of the case for trial upon remand and for the appellate court itself upon subsequent review. Id. On the second appeal, the decision of the first appeal becomes the law of the case and is conclusive of every question of law or fact decided in the former appeal, and also those that might have been, but were not, presented. Id.
| sIn the first jury trial a directed verdict was entered against Mr. Schmidt concerning his claim of conversion of his dogs. He appealed from the order arising from the first jury trial, raising multiple arguments but not challenging the directed verdict as to conversion of the dogs. Therefore, this issue was conclusively decided and could not be relitigated on remand in the second jury trial.
Furthermore, we do not agree that the trial court abused its discretion in finding that any relevance in Mr. Stear-man’s shooting of the dogs was substantially outweighed by the danger of unfair prejudice. Mr. Schmidt contends that the shootings were relevant on the issue of punitive damages. However, in the absence of an award of compensatory damages for the underlying cause of action, punitive damages are improper. Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988). Because Mr. Schmidt was not entitled to any compensatory damages on his claim for conversion of the dogs, neither could he recover any punitive damages for that claim. And we fail to see the relevance of Mr. Schmidt’s alleged fear of Mr. Stearman or Mr. Schmidt’s decision to vacate the farmhouse as regards this conversion action. Evidence that Mr. Stearman killed the dogs would have been prejudicial, and we hold that the trial court did not abuse its discretion in excluding the evidence on its finding that any relevance was substantially outweighed by the prejudice.
Mr. Schmidt’s second argument is that the trial court made objectionable comments in the presence of the jury that warrant reversal. During redirect examination of Mr. Schmidt, he was asked whether he thought he had a legal right to be on the property. | flMr. Stearman objected to the question, saying that it was clear as a matter of law that Mr. Schmidt had no right to be there. The trial court overruled Mr. Stearman’s objection, and stated, “Well, I’m going to let him testify if he thought he had a right to be there.... But the property has been sold and he hasn’t paid any rent on it and ... I don’t think he had a legal right that has been shown to this court to be there. But go ahead.”
Mr. Schmidt challenges the trial court’s comments, citing West v. State, 255 Ark. 668, 672, 501 S.W.2d 771, 774 (1973), where the supreme court wrote:
In a jury trial there is probably no factor that makes a more indelible impression on a juror than the attitudes, statements and opinions of the trial judge. To them, his word is the law. The trial judge should always preside with impartiality and must be cautious and circumspect in his language for it is the jury that is the sole judge of the facts and the credibility of witnesses. Because of his influence with the jury, remarks by the trial judge may tend to prejudice a litigant by destroying the weight and credibility of testimony in his behalf in the minds of the jury. Although the judge may not intend to give an undue advantage to one party, his influence may quite likely produce that result. (Citations omitted.)
Mr. Schmidt asserts that the trial court’s comments were improper, and that the comments intimated to the jury that Mr. Schmidt’s testimony as to why he was on the property was of little, if any, value.
We hold that Mr. Schmidt’s challenge to the trial court’s comments is not preserved for review because he made no objection at trial. A contemporaneous objection is required to preserve an issue for appeal. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). It was Mr. Schmidt’s burden to ask for a curative instruction. See Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003). Moreover, a mistrial motion is to be requested when the error is beyond | inrepair and cannot be corrected by any curative relief. Robinson v. State, 363 Ark. 432, 214 S.W.3d 840 (2005). In the present case, Mr. Schmidt did not request an admonition or a mistrial when the trial court made its comments, nor did he make any objection that the trial court’s comments were an improper comment on the evidence. Therefore, this argument is not preserved and we need not address it.
Mr. Schmidt’s remaining argument is that the trial court erred, over his objection, in giving jury instructions on the unlawful detainer statute and the criminal possession of real property statute. These jury instructions provided:
A person shall be guilty of an unlawful detainer if the person shall, willfully and without right, peaceably and lawfully obtain possession of any property and hold it willfully and unlawfully after demand made in writing for the delivery or surrender of the possession thereof by the person having the right of possession, his or her agent or attorney.
Any person who shall rent any dwelling house or other building or any land situated in the State of Arkansas and who shall refuse or fail to pay the rent therefore when due according to contract shall at once forfeit all right to any longer occupy the dwelling house or other building or land.
If, after ten days’ notice in writing shall have been given by the landlord or the landlord’s agent or attorney to the tenant to vacate the dwelling house or other building or land, the tenant shall willfully refuse to vacate and surrender the possession of the premises to the landlord or the landlord’s agent or attorney, the tenant shall be guilty of a misdemeanor.
A party is entitled to a jury instruction when it is a correct statement of the law, and there is some basis in the evidence in giving the instruction. Pettus v. McDonald, 343 Ark. 507, 36 S.W.3d 745 (2001). Mr. Schmidt contends that these instructions were erroneously^given because Mr. Stearman never filed an unlawful detainer action, nor were any criminal charges filed against Mr. Schmidt.
We will not reverse a trial court’s decision to give a jury instruction unless the trial court abused its discretion. Graftenreed v. Seabaugh, 100 Ark. App. 364, 268 S.W.3d 905 (2007). We hold that there was no abuse of discretion in giving the two instructions at issue here. These instructions were correct statements of the law as they tracked the statutory language of Ark.Code Ann. §§ 18-60-804(2) and 18-16-101(a) and (b)(1) (Repl.2003). Moreover, there was some basis in the evidence to give these instructions because the lawfulness of the respective parties’ legal right to possess the real property bore on the issue of punitive damages. The evidence did not demonstrate that an unlawful detainer action or misdemeanor charges were ever filed against Mr. Schmidt, and this was emphasized in Mr. Schmidt’s counsel’s closing argument to the jury. But it is evident that there may have been grounds for such civil or criminal proceedings given the evidence adduced at trial, and we affirm the trial court’s decision to give the jury instructions.
Affirmed.
HART and HENRY, JJ., agree. | [
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RITA W. GRUBER, Judge.
11 This is an appeal by an employer, Jonesboro Care & Rehab Center (the “Center”), from a decision of the Arkansas Workers’ Compensation Commission awarding benefits to Ronna Woods. On appeal, the Center contends that substantial evidence does not support the Commission’s finding that Ms. Woods was performing employment services at the time she fell and sustained her injury. We agree. Accordingly, we reverse the Commission’s decision.
I.
Ms. Woods worked for the Center as a certified nursing assistant. She typically worked the 10:00 p.m. to 6:00 a.m. shift. During working hours, she was allowed two fifteen-minute breaks and a thirty-minute break for a meal. The Center also required its employees to attend in-service seminars for instruction on every other Friday. These seminars, which were held in the dining hall, coincided with the dates employees received [2their paychecks. The Center paid employees one hour’s wages for their attendance at the seminars.
On Friday, October 24, 2008, Ms. Woods attended a regularly scheduled training seminar in the dining hall. The meeting lasted twenty to thirty minutes and, at its conclusion, the director of nursing instructed the employees to form a line to receive their paychecks and to complete paperwork for a flu shot. The Center maintained a smoking area for its employees outside the dining hall. Instead of standing in line, Ms. Woods decided to smoke a cigarette in the designated area while waiting for the line to shorten. After a few moments, she decided to go back inside because it was chilly. With a lighted cigarette in her hand, Ms. Woods walked over to a trash can to discard her chewing gum and then fell onto the concrete pavement, fracturing her left humerus.
Ms. Woods filed a claim seeking medical and temporary total disability benefits to a date yet to be determined. The Center controverted Ms. Woods’s claim in its entirety, asserting that the injury occurred when she was not performing employment services. The law judge awarded benefits, finding that Ms. Woods was performing employment services at the time of the injury because:
[T]he claimant was in the process of returning to the dining room, after having taken a cigarette break, while waiting for the line of employees, which had formed to complete documents and receive paychecks, to thin. The claimant had not received her paycheck nor had she clocked out at the time of her accidental injury. Further, the claimant had completed her smoke break and was returning to pick up her paycheck at the mandatory meeting at the time of her accident.
The Center appealed this decision to the Commission, which affirmed and adopted the law kludge’s opinion as its own. This appeal followed.
II.
For reversal, the Center contends that the Commission’s decision is not supported by substantial evidence. The Center argues that the injury sustained by appellee did not occur while she was performing employment services.
In order for an accidental injury to be compensable, it must arise out of and in the course of employment. Ark.Code Ann. § 11 —9—102(4)(A)(i) (Supp.2009). A compensable injury does not include an injury that is inflicted upon the employee at a time when employment services are not being performed. Ark.Code Ann. § 11 — 9—102(4)(B)(iii). An employee is performing employment services when he or she is doing something that is generally required by his or her employer. Dairy Farmers of Am., Inc. v. Coker, 98 Ark.App. 400, 255 S.W.3d 905 (2007). We use the same test to determine whether an employee is performing employment services as we do when determining whether an employee is acting within the course and scope of employment. Parker v. Comcast Cable Corp., 100 Ark.App. 400, 269 S.W.3d 391 (2007). The test is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer’s purpose or advancing the employer’s interest, directly or indirectly. Id. Moreover, the issue of whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008).
In reviewing decisions from the Workers’ Compensation Commission, we view the ^evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Johnson v. Latex Constr. Co., 94 Ark.App. 431, 232 S.W.3d 504 (2006). Substantial evidence exists if reasonable minds could reach the same conclusion. Sivixay v. Danaher Tool Group, 2009 Ark.App. 786, 359 S.W.3d 433. However, our standard of review must not totally insulate the Commission from judicial review because this would render this court’s function meaningless in workers’ compensation cases. Bohannon v. Walmart Stores, Inc., 102 Ark. App. 37, 279 S.W.3d 502 (2008). We will reverse if the Commission’s decision is based on an incorrect application of the law. Wallace v. W. Fraser S., Inc., 365 Ark. 68, 225 S.W.3d 361 (2006).
The sole issue in this appeal is whether appellee was performing employment services at the time of the injury. We turn to the case law to determine when an employee is deemed to be performing employment services. It is clear that injuries sustained by employees during restroom breaks and while employees are on their way to and from restroom facilities are considered compensable. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002); Collins v. Excel Specialty Prods., 347 Ark. 811, 69 S.W.3d 14 (2002); Matlock v. Ark. Blue Cross Blue Shield, 74 Ark.App. 322, 49 S.W.3d 126 (2001). In addition, injuries sustained by employees during a required break which benefits the employer are compensable. See, e.g., Dearman v. Deltic Timber Corp., 2010 Ark.App. 87, 377 S.W.3d 301 (reversing Commission’s denial of benefits where the entire factory shut down for all of the employees to take their |flrequired breaks at the same time, and those breaks directly advanced the employer’s interest). We have also recently held that an injury is compensable when it is clear that the injury occurred during a break that was solely to benefit the employer, even if the break was not required. Hudak-Lee v. Baxter County Reg’l Hosp., 2010 Ark.App. 121, 2010 WL 475354.
In Hudak-Lee, the employee was injured when she missed a step while stepping outside the hospital where she worked to keep herself alert after observing a sleeping patient in a quiet, dark room. We determined that there was no evidence that she stepped outside the hospital for any purpose related to her own personal comfort or convenience — she was not going to her car, she was not going to get something to eat or drink, she was not eating or drinking at the time, she was not smoking, and she was not visiting with anyone. Holding that the only evidence in the record demonstrated that Hudak-Lee was walking in the cold night air to try to refresh herself solely for the benefit of her employer, we reversed the Commission’s denial of benefits.
Finally, injuries sustained by employees who are “on call” during break or who are performing both employment services and personal services are compensable. See, e.g., Kimbell v. Ass’n of Rehab Indus. & Bus. Companion Prop. & Cas., 366 Ark. 297, 235 S.W.3d 499 (2006) (holding employee was advancing his employer’s interest by having conversation with client of employer when he fell during a smoke break and reversing Commission’s denial of benefits); White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999) (holding employer gleaned a benefit from appellant remaining near his work station during a break to | (¡monitor machines, which was a requirement of his job duties, and therefore, appellant was performing employment services); Ray v. Univ. of Ark, 66 Ark.App. 177, 179, 990 S.W.2d 558, 560 (1999) (finding appellant performed employment services when her employer received a benefit from appellant’s presence during her lunch break by the requirement that she leave her break if a student needed her assistance; she was injured when she slipped on salad dressing while reaching for a snack from the cafeteria for her own consumption).
In this case, rather than waiting in line as directed by her employer, Ms. Woods was taking a smoke break. There is no evidence that the break was required by her employer; indeed, there was no evidence that she was even authorized to take a break. In fact, her coworker, who also took a smoke break, characterized the smoke break as an “unscheduled break.” Furthermore, there is no evidence from the record that Ms. Woods was “on call” during this break or engaged in any activity from which her employer derived a benefit. The break was purely personal.
The fact that Ms. Woods was smoking during this break is not determinative. Compare Kimbell v. Ass’n of Rehab Indus. & Bus. Companion Prop. & Cas., 366 Ark. 297, 235 S.W.3d 499 (2006) (holding injury that occurred during a smoke break was compensable where employer gleaned some benefit from employee’s conversation with customer during break), with McKinney v. Trane Co., 84 Ark.App. 424, 143 S.W.3d 581 (2004) (holding injury that occurred on way to smoke break was not compensable where employee was involved in nothing generally required by his employer and employer gleaned no benefit from employee’s |7break). In this case, appellee just as easily could have been eating an apple or drinking a soda. The critical fact is that Ms. Woods was not where she was supposed to be or doing what she was directed to do. Accordingly, we hold that the Commission’s finding that Ms. Woods was performing employment services is not supported by substantial evidence and we reverse its decision awarding benefits.
Reversed.
GLADWIN, GLOVER, MARSHALL, and BROWN, JJ., agree.
HART, ROBBINS, KINARD, and BAKER, JJ., dissent. | [
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ROBERT J. GLADWIN, Judge.
11 This appeal follows the June 3, 2009 decision of the Workers’ Compensation Commission (Commission) affirming and adopting the December 29, 2008 opinion of the Administrative Law Judge (ALJ), finding that appellant George Hill failed to prove by a preponderance of the evidence that he sustained a compensable right-shoulder injury on November 8, 2007. The Commission found that appellant failed to prove by a preponderance of the evidence that his right-shoulder injury arose out of and in the course of his employment with appellee/employer LDA Leasing, Inc. (LDA). Appellant argues that the Commission erred in its interpretation and application of the law regarding the determination of whether he suffered a compensable injury during the course and scope of his employment. We affirm.
| ¡.Facts
Appellant was a truck driver for LDA on November 8, 2007. On that day he picked up a pre-loaded trailer of processed chickens in Athens, Alabama, and delivered them to a Pilgrim’s Pride plant in Natchi-toches, Louisiana. Appellant testified that he arrived at the plant somewhere between noon and 1:00 p.m. that afternoon.
Upon arrival, appellant was assigned a loading dock where he waited while Pilgrim’s Pride employees unloaded his trailer. The unloading process could last between thirty minutes and three hours, but appellant was only allowed to record fifteen minutes in his log book for unloading. Appellant could be terminated for unhooking and taking the tractor from the trailer section of the truck for his convenience during unloading, and he was responsible for the truck and its contents at all times.
While waiting for his truck to be unloaded, appellant decided to go to the restroom. Upon exiting the restroom, appellant stopped to get some crackers out of a vending machine located in the Pilgrim’s Pride “snack room.” While pushing the button for his snack crackers on the vending machine, appellant’s feet slipped out from under him, and he fell down between two picnic-style tables, striking his right elbow and arm. Appellant’s fall occurred somewhere between 3:00 and 3:30 p.m.
After falling, appellant returned to his truck to lie down, but his pain was too severe. He asked directions to the nurse’s station. Appellant knew he had hurt his right-upper arm “pretty bad” and told the nurse that he may have dislocated his arm. The nurse told appellant | 3that he did not have a dislocated shoulder, gave him three heating pads for the pain, and instructed him to go back to his truck. The nurse did not document appellant’s visit.
After using the heating pads, appellant’s arm started to feel better. He then sat up in the driver’s seat until his truck was unloaded and left the Pilgrim’s Pride facility between 4:00 and 5:00 p.m.
Appellant filed a claim seeking compensation benefits, and LDA controverted the claim contending that appellant was not performing employment-related services at the time of his injury. A hearing was held before the ALJ on October 2, 2008, at which time appellant argued that the specific issue of law in controversy was whether his injury occurred during the course and scope of his employment. He contended that it did and that appellees unjustifiably withheld workers’ compensation benefits to which he was entitled.
The ALJ filed an opinion on November 8, 2007, stating that appellant failed to prove that he sustained a compensable right shoulder injury on November 8, 2007, specifically finding that appellant failed to prove by a preponderance of the evidence that his right shoulder injury on Novem ber 8, 2007, arose out of and in the course of his employment with LDA. Appellant filed a timely notice of appeal on January 27, 2009, and on June 3, 2009, the Commission issued an opinion affirming and adopting the ALJ’s opinion. Appellant filed a timely notice of appeal on June 11, 2009, and this appeal followed.
|/This case is similar to one recently decided by this court. In Jonesboro Care & Rehab Center v. Woods, 2010 Ark. App. 236, 374 S.W.3d 193 we reiterated the applicable statutory law and standard of review with respect to the relevant issue in the instant case:
In order for an accidental injury to be compensable, it must arise out of and in the course of employment. Ark.Code Ann. § 11 — 9—102(4)(A)(i) (Supp.2009). A compensable injury does not include an injury that is inflicted upon the employee at a time when employment services are not being performed. Ark.Code Ann. § 11 — 9—102(4)(B)(iii). An employee is performing employment services when he or she is doing something that is generally required by his or her employer. Dairy Farmers of Am., Inc. v. Coker, 98 Ark. App. 400, 255 S.W.3d 905 (2007). We use the same test to determine whether an employee is performing employment services as we do when determining whether an employee is acting within the course and scope of employment. Parker v. Comcast Cable Corp., 100 Ark. App. 400, 269 S.W.3d 391 (2007). The test is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer’s purpose or advancing the employer’s interest, directly or indirectly. Id. Moreover, the issue of whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008).
In reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Johnson v. Latex Constr. Co., 94 Ark. App. 431, 232 S.W.3d 504 (2006). Substantial evidence exists if reasonable minds could reach the same conclusion. Sivixay v. Danaher Tool Group, 2009 Ark. App. 786, [359] S.W.3d [433], However, our standard of review must not totally insulate the Commission from judicial review because this would render this court’s function meaningless in workers’ compensation cases. Bohannon v. Wal-Mart [Walmart] Stores, Inc., 102 Ark. App. 37, 279 S.W.3d 502 (2008). We will reverse if the Commission’s decision is based on an incorrect application of the law. Wallace v. W. Fraser S., Inc., 365 Ark. 68, 225 S.W.3d 361 (2006).
Woods, 2010 Ark. App. 236, at 3-4, 374 S.W.3d at 196-98.
The sole issue in this appeal, as in Woods, is whether appellant was performing employment services at the time of his injury. We turn to the case law to determine when 15an employee is deemed to be performing employment services. Arkansas courts have held that injuries sustained by employees during restroom breaks and while employees are on their way to and from restroom facilities are compensable. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002); Collins v. Excel Specialty Prods., 347 Ark. 811, 69 S.W.3d 14 (2002); Matlock v. Ark. Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001). Additionally, injuries sus tained by employees during required breaks that are found to benefit employers have also been found to be compensable. See, e.g., Dearman v. Deltic Timber Corp., 2010 Ark. App. 87, 377 S.W.3d 301 (reversing Commission’s denial of benefits where the entire factory shut down for all of the employees to take their required breaks at the same time, and those breaks directly advanced the employer’s interest). This court also recently held that an injury is compensable when it is clear that the injury occurred during a break that was solely to benefit the employer, even if the break was not required. Hudak-Lee v. Baxter County Reg’l Hosp., 2010 Ark. App. 121, 2010 WL 475354 (finding there was no evidence that the employee deviated from her job duties for any purpose related to her own personal comfort or convenience).
Injuries sustained by employees who are “on call” during break or who are performing both employment services and personal services have also been found to be compensable. See e.g., Kimbell v. Ass’n of Rehab Indus. & Bus. Companion Prop. & Cas., 366 Ark. 297, 235 S.W.3d 499 (2006) (employer’s interests advanced by employee having conversation with client of employer when he fell during a smoke break); White v. Georgian-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999) (employer’s interests advanced by employee remaining near his | (¡work station during a break to continue his duty to monitor machines); Ray v. Univ. of Ark. 66 Ark. App. 177, 179, 990 S.W.2d 558, 560 (1999) (employer’s interests advanced by employee’s presence in cafeteria during her lunch break and the requirement that she leave her break if a student needed her assistance).
In this case, appellant specifically testified that his primary job duties during the unloading process were to be at the truck to make sure that no damage was done to the vehicle, that the load was properly accounted for, and to be ready to move the truck at a moment’s notice when it was unloaded. It is undisputed that appellant deviated from his return to the loading dock following a restroom break to purchase snack crackers from a vending machine in the plant’s “snack room.” While the record is not clear on the exact location of the “snack room,” the evidence before us indicates that, while in route from the restroom, the “snack room” is located in a separate room, behind at least one set of doors. There is no evidence that appellant could either see his truck from the snack room or be seen by the dock employees in the event there was a problem with unloading the truck. The ALJ stated in his opinion that was affirmed and adopted by the Commission that
the act of the Claimant pushing the vending machine buttons cannot be said to directly or indirectly advance the interests of his employer. In fact, since the Claimant left the immediate area of his truck, it could easily be said that the Claimant was doing the direct opposite of what was in his employer’s interests. The Claimant’s turn around testimony shows that it was in the interests of his employer for the Claimant to be at the truck to make sure that no damage was done to the vehicle, that the load was properly accounted for, and to be ready to move the truck when it was unloaded.... Therefore, I find that the Claimant’s actions were in contravention to his employer’s interests and find that the Claimant’s injury to his shoulder did not arise out of and in the course of his employment.
|7In addition to looking at whether the injury occurred within the time and space boundaries of the employment, and when the employee was carrying out the employ er’s purpose or advancing the employer’s interest either directly or indirectly, courts have also looked to whether or not the injured employee was engaging in activities required by the employer. See Ray, supra (stating that whether an employer requires an employee to do something has been dispositive of whether that activity constituted employment services). In the instant ease, appellant clearly indicated that he was not doing anything that was required of him at the time he fell. Regarding whether it even was physically possible for him to have been carrying out his job requirements at the time of the injury, appellant testified as follows:
Q. Jody, were you assisting at all in unloading the truck?
A. No, I was not.
Q. Were you supervising, at all in unloading that truck?
A. No, I was not.
Q. In fact, what you were supposed to do is simply stay there to — because you were responsible for what might have happened to your trailer, or what — making sure that all the produce go — or the product got on and off the truck accurately; is that right?
A. I was — I was responsible for my equipment.
Q. Okay. And if you left the truck and decided you were going to go to the other end of the plant, and they need you to move the truck, they don’t need to have to track you down; is that right?
A. No, they don’t.
Q. They need you to be there when they’re ready for you to move that truck in case they have another one to come and—
|SA. That’s correct.
Q. —load up?
A. That’s correct.
We acknowledge appellant’s argument that his mere presence on the premises somehow benefitted LDA, but hold that this situation is distinguishable from a scenario in which he injured himself while watching the truck or sitting in the cab as required by LDA. Instead, he injured himself while doing just the opposite of what was required.
The Commission is bound to examine the activity appellant was engaged in at the time of the accident when determining whether or not he was performing employment-related services. See Conner, supra. See also Smith v. City of Fort Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004) (holding that the critical inquiry is whether the employer’s interests were being directly or indirectly advanced by the employee at the time of the injury). Here, appellant was not advancing LDA’s interests in any way at the time he was operating the vending machine away from the area in which his truck was being unloaded.
We distinguish the facts in this case from Ray, supra, because, although the employee’s injury in that case was found to be compensable in large part because she was required to stay in the vicinity of the cafeteria during her break, here, appellant admitted that he was not in the vicinity of his truck — his sole source of responsibility — when his injury occurred. Additionally, in White, supra, the employee’s injury was found to be compensable because he remained in a position where he could monitor his machine while taking a smoke break in |flan undesignated area. In contrast, appellant was not even in a position where he could have discharged the sole task required of him at the time. While in the break room, he could not have seen his truck had someone hit it; he could not have seen any damage inflicted upon the products being unloaded; and he was not in an area where he could have determined whether someone needed him to move the truck for any reason. .
The case is similar to McKinney v. Trane Co., 84 Ark. App. 424, 143 S.W.3d 581 (2004), in which this court ruled that an injury suffered during a smoke break, when no other job responsibilities were being carried out, was not compensable. In response to arguments similar to those made by appellant, the court stated:
McKinney argues that the activities and situation of this case are similar to those constituting “employment services” in White v. Georgia-Pacific Corp., supra, and Ray v. University of Arkansas, supra. He points to his testimony that he felt an obligation to report or take care of anything askew that he might observe during his break, and that he returned from break-time activities more refreshed and better able to complete his work. We do not find such an analogy. The claimant in Ray was required to aid students on her break, and the claimant in White was forced to remain near his immediate work area in order to monitor machines and immediately return to work if necessary: in each case the employer gleaned benefit from the worker performing, or standing ready to perform, specific activities while on break. McKinney, on his way to his smoke break, was involved in nothing generally required by his employer and was doing nothing to carry out the employer’s purpose; thus, the employer gleaned no benefit from his activities on break. See Pifer v. Single Source Transp., supra. We reject McKinney’s argument that his left-knee injury was compensable because it occurred during a paid break taken pursuant to a union-negotiated contract. Thus, we affirm the Commission’s finding that the jump and landing that caused the injury did not occur at a time when the claimant was performing employment services.
McKinney, 84 Ark. App. at 429, 143 S.W.3d at 585. Appellant’s decision to deviate from his route back from a restroom break to stop in the break room for an unspecified period of time is similar to the decision of the employee in McKinney. He was not in a position to perform any of the duties required of him by LDA while in the break room. Accordingly, we hold that the Commission’s decision is affirmed.
Affirmed.
KINARD and GLOVER, JJ., agree. | [
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LARRY D. VAUGHT, Chief Judge.
11 Appellants Linda and Cliff Price argue two main points on appeal in this land-sale case. First they claim that the trial court erred in its decision to admit the testimony of an expert witness for appellees Jerrie and Walter Willbanks who was not identified during the discovery; second they argue that the trial court erred in its conclusion that the writing was an enforceable land contract. We see no reversible error and affirm the decision of the trial court.
This case involves a written agreement entered into by the parties concerning a tract of real property. According to the Prices, on February 23, 2005, they entered into preliminary negotiations to sell a portion of their land to the Willbankses. The Prices claim that their “hastily drafted” agreement merely “memorialize^] the privilege of the Willbankses to come onto [the Prices’] property [to care for the Prices’ horses] as well as the future intent of the Prices to possibly sell land to the Willbanks[es].” The Willbankses claim that the contract was not preliminary in nature and that it did in fact memorialize the land-sale agreement between the two loparties. The writing in question states:
LAND CONTRACT
THIS CONTRACT IS BETWEEN WALTER AND JERRY WILLBANKS & CLIFF AND LINDA PRICE I CLIFF AND LINDA PRICE BOUGHT 30.24 ACRES FOR 60,000.00 DOLLARS, PAYMENTS 600.00 (595.00) DOLLARS A MONTH.
WALTER WILLBANKS AND JERRY WILLBANKS WHO TAKE’S CARE OF OUR LIVE STOCK (HORSES). WILL HAVE TO MOVE ON THE 30.24 ACRES IN ORDER TO RUN THE RANCH..
THEY WILL BE BUYING 15 ACRES OF SAID LAND..THEY WILL BE BUYING THE AREA MENTION IN THIS CONTRACTOR WHICH IS THE FRONT HALF OF THE PROPERTY NORTH/SOUTH WITH GRAND AVE.. WITH EAST/WEST HARTZEL LAND AND EAST/WEST OF GRIFFITH LANE ... ADDRESS IS 502 SOUTH GRAND MCRAE, AR. WE THE OWNER AND SELLER CLIFF AND LINDA PRICE WILL BE SELLING TO THE BUYER WALTER AND JERRY WILLBANKS THE SAID 15 ACRES FOR 300.00 PER MOTH (handwritten notation of “$30,000 total”), IF THEY DEFAULT ON PAYMENTS AFTER 90 DAYS IT WILL BE RETURNED TO THE SELLER WHICH IS CLIFF AND LINDA PRICE ... IN THE EVENT OF UNFOR SENT PROBLEM CODY WILLBANKS CAN COMPLETE..THIS CONTRACT..
THIS IS JUST A ROUGH DRAFT..IN-CASE SOMETHING HAPPENS TO THE OWNER.. WALTER AND JERRY WILLBANKS WILL BE PER-TECTED..
SIGN: CLIFF PRICE DATE 2-23-2005
SIGN: LINDA PRICE DATE 2-23-2005
SIGN WALTER WILLBANKS DATE 2-23-2005
SIGN JERRIE WILLBANKS DATE 2-23-2005
On July 18, 2007, the Prices filed an action for ejectment and unlawful detainer against the Willbankses. On November 7, 2007, the Prices filed a motion for summary judgment asserting that the writing was not a land contract because it lacked a legal description of the real | sproperty and was missing essential terms. Following a hearing in October 2008, the trial court ruled that the proof did not support a writ of prohibition (as ultimately requested by the Prices). The Willbankses filed a counterclaim for declaratory judgment and specific performance on October 13, 2008.
A hearing on the Willbankses’ counterclaim was scheduled for November 24, 2008. At this hearing, the Willbankses called surveyor Kenneth Hazlewood as an expert witness to testify about how he used the property description in the writing to perform a survey on the fifteen acres of property. The Prices objected to the witness being called, claiming that they were not put on notice of his testimony through discovery. The trial court allowed the testimony but afforded the Prices a recess to become familiar with the survey that Hazlewood had prepared. On December 8, 2008, the trial court issued an order granting the Willbankses the relief they requested. That order is the subject of this timely appeal.
At the outset we note that this case was heard as a bench trial, so we must consider only whether the trial court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Crooked Creek III, Inc. v. City of Greenwood, 352 Ark. 465, 101 S.W.3d 829 (2003). Further, when there is testimony in conflict on the issue of whether the parties agreed to the terms of a contract, a factual question arises that is to be determined by the trial court. Country Comer Food & Drug, Inc. v. Reiss, 22 Ark.App. 222, 227, 737 S.W.2d 672, 674 (1987). And, a factual finding will not be reversed so long as there is evidence to support the trial court’s finding. Id., 737 S.W.2d at 674.
We first consider the Prices’ primary point on appeal — the validity and effect of their |4self-titled “Land Contract.” They argue that the document was not a contract; the Willbankses counter that it was. These converse positions are both predicated on a mutual understanding of Arkansas law requiring that a contract include these essential elements: (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations. Simmons v. Simmons, 98 Ark.App. 12, 15, 249 S.W.3d 843, 846 (2007). The Prices argue that the contract is void because it did not reflect a mutual agreement. In support of their argument, the Prices claim that the writing was not a contract because it did not include an interest rate, did not mention performing a survey, and did not mention the payment of taxes. They also argue that their use of future-tense language (“we will be selling” and “they will be buying”) and the phrase “[t]his is just a rough draft, .incase something happens to the owner. Walter and Jerry Willbanks will be perteeted” is proof that they did not manifest an intent to contract for the sale of the land. In response, the Will-bankses testified that they believed they were buying the property and would receive title once they paid the $30,000 by virtue of their $300 monthly payments.
We believe that the trial court’s resolution of the matter was both logical and consistent with the common principles of installment-land contracts. Our law does not favor the destruction of contracts because of uncertainty, and courts — when possible — are to construe a contract in a manner that gives effect to the reasonable intentions of the parties. Dziga v. Muradian Bus. Brokers, Inc., 28 Ark.App. 241, 245, 773 S.W.2d 106, 107 (1989). Here, the precise language of the “Land Contract” includes the following substantial provisions: (1) the names of all parties involved, (2) the payment method, (3) the intent to sell the “front half’ of the original Rtract to the Willbankses, (4) a detailed description of the fifteen acres to be sold, (5) the price per month and the total purchase amount to be paid by the Willbankses, (6) a provision for breach and termination of the contract, and (7) the dated signatures of all the parties involved. There is no doubt that the writing contains sufficient mention of the terms and conditions of the sale, the price to be paid, and the time for payment as required by our laws. See Van Dyke v. Glover, 326 Ark. 736, 743, 934 S.W.2d 204, 208 (1996).
However, the writing must also contain a property description that is adequate to satisfy the statute of frauds; but if a writing furnishes a means by which the realty can be identified, it need not describe the property with the particularity required for deeds. Boensch v. Cornett, 267 Ark. 671, 674, 590 S.W.2d 55, 57 (Ark.App.1979). Further, although extrinsic evidence may not be used to add or change a deficient description, it may be used to decipher or make intelligible the terms of the contract so long as the writing itself provides the key to the description. Id., 590 S.W.2d at 57. Here, the Prices’ description of the property contains a particular address located in a particular town in the state of Arkansas, which is the only tract of land that could be the subject matter of the agreement. It also describes the streets that border the property and the particular area (“front half’) of the property at that address. As such, because the key to the description was contained in the “Land Contract” itself, the trial court properly used the legal description of the Prices’ warranty deed as extrinsic evidence to make the terms of the contract both intelligible and satisfactorily precise to satisfy the statute of frauds.
| (¡As to the Prices’ claim that the contract fails for lack of mutuality, our laws require that if uncertainty or ambiguity exists within the terms of a contract, or if it is susceptible to more than one reasonable construction, then the courts must construe the contract most strongly against the party who drafted it. Elcare, Inc. v. Gocio, 267 Ark. 605, 608, 593 S.W.2d 159, 161 (1980). In this case, arguably, the Prices’ future-tense language coupled with the “rough draft” disclaimer created an ambiguity as to whether a second document was anticipated or forthcoming. However, no subsequent document was drafted and the parties’ “Land Contract” was not rescinded. In fact, both parties operated and executed under the stated contract terms. As such, any ambiguity about whether the future-tense language meant either that another writing was anticipated or that title would be tendered at a future date (after payment in full) must be construed against the drafters — the Prices. There are other indicators suggesting a manifestation of mutual assent — the title of the document, the essential terms contained in the writing, and the conduct and acts of the parties in performance of the contract for multiple, consecutive years. As such, because the decision of the trial court was neither clearly erroneous nor clearly against the preponderance of the evidence, we affirm.
The Prices also argue that they were prejudiced by the Willbankses’ failure to disclose their surveyor as an expert witness. Certainly Arkansas Rule of Civil Procedure 26(e)(1) imposed a legal duty on the Willbankses to supplement their discovery responses relating to the surveyor’s testimony. “A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not | .¡otherwise been made known to the other parties during the discovery process or in writing.” Ark. R. Civ. P. 26(e). The Willbankses acknowledge their Rule 26 duty to supplement (and concede then-breach of duty) but argue that their failure to supplement did not prejudice the Prices.
We are persuaded by the argument. Although inadequate discovery responses can amount to an act of “constructive fraud,” the facts of this case did not produce a prejudicial result. See Battles v. Morehead, 103 Ark.App. 283, 288-89, 288 S.W.3d 693, 697-98 (2008). Here, the testimony of the undisclosed witness involved an issue that was ancillary to the main question before the court — whether a land-sale contract existed. Furthermore, the trial court did not utilize the survey in deciding whether the property description contained in the writing was sufficiently precise for the writing to qualify as a valid land-sale contract under the statute of frauds. Rather, the trial court used the evidence relating to Hazlewood’s survey of the property to prepare its order of declaratory judgment and specific performance after it concluded that the “Land Contract” was in fact a valid contract for the sale of land. Additionally, the Prices were given an opportunity to review the survey during trial. In sum, although the Will-bankses failed to comply with our discovery rules, because no prejudice resulted, we affirm on this point.
Affirmed.
GLOVER and MARSHALL, JJ„ agree.
. The writing is reproduced — verbatim—as drafted by the Prices.
. It is worthy of note that this amount is exactly half of the price paid per month and half of the total purchase price paid by the Prices when they purchased the original 30.24-acre tract. | [
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DAVID M. GLOVER, Judge.
| [In this divorce case, both parties appeal from certain aspects of the Craighead County Circuit Court’s decree. Appellant Arnold Gilliam raises five points for reversal concerning the division of marital property and debt and the award of alimony and attorney’s fees to appellee Jamie Gilliam. Appellee raises one point on cross-appeal concerning the calculation of appellant’s income for child support and alimony purposes. We affirm on direct appeal and on cross-appeal.
The parties married in 1986 while appellant was attending medical school. Two children were born during the marriage, a daughter who had reached majority by the time of trial and a son who was fifteen. The son suffers from dyslexia. After the birth of the parties’ daughter, appellee did not work outside the home. The parties separated in 2005. Appellee |2filed her complaint for divorce on September 22, 2005. Appellant filed an answer and counterclaim.
A temporary order was entered on December 14, 2005. That order awarded temporary custody of the children to ap-pellee, and appellant was ordered to pay child support of $3,200 per month. Appellant was also ordered to pay spousal support of $1,500 per month, the debt on the parties’ vehicles, and the mortgage debt on the parties’ marital residence. Appellee was awarded temporary possession of the marital residence. The court deferred the issue of attorney’s fees and suit money until the final hearing.
Trial was held in the case on October 2 and 10, 2007. After hearing the testimony of witnesses, viewing the documentary evidence, and receiving briefs from the parties, the circuit court issued a letter opinion on November 30, 2007. Appellant was awarded a divorce on his counterclaim on the basis of eighteen months’ separation. Appellee was awarded custody of the parties’ son. After commenting that calculating appellant’s income was difficult because appellant was not self-employed, the court found appellant’s income to be $15,895 per month. The court stated that the presumed amount of child support was $2,384 per month. However, the court set appellant’s support obligation at $2,400 per month. Based on the disparity in the par ties’ incomes and the fact that appellee had not worked outside the home, appellant was ordered to pay all of the minor child’s medical and dental expenses until the later of when the child graduated from high school or reached his majority.
|sThe court found that the parties’ marital residence was surrounded by forty-two acres. The property was appraised as being worth $330,000 the week before trial and was encumbered by three mortgages totaling $296,260. The court awarded ap-pellee exclusive possession of the residence until the later of the minor child reaching majority or graduating from high school. At that time, the property would be sold with the proceeds divided equally between the parties. Appellant was ordered to continue making the three monthly mortgage payments on the property, and was to be reimbursed out of the sales proceeds for the payments on the second and third mortgages.
The court awarded appellee one-half the value of appellant’s interest in the medical practice. The court noted that the parties presented conflicting evidence as to the value of this interest. Appellee’s net valuation was $100,131, while appellant’s net valuation was $88,162. The court found that appellant had various retirement accounts totaling $394,458 that were marital property. Appellee was awarded one-half of this amount.
Appellant was awarded his vehicle and was to be responsible for the debt on that vehicle, as well as the debt on the vehicle purchased for the parties’ daughter. Ap-pellee was awarded a 2007 Toyota Corolla, a 2000 Ford F350 pick-up, two horse trailers, a tractor, and a riding lawn mower. She was to be responsible for the debts on these items. The court noted that there was little information as to the value of these vehicles. However, based on the facts, circumstances, and situation of the parties, the court found this to be an equitable distribution.
|4The court found that two horses were the separate property of appellee, other horses were the separate property of the children, and that appellant had sold one of the horses to raise money for the purchase of a vehicle for the parties’ daughter. Appellee was awarded approximately $1,700 as her share of the proceeds from that sale.
The parties were found to have made a division in kind of the horses and certain weapons and hunting equipment. The court found that it was equitable to divide these items pursuant to the agreement. The court also noted that there was very little evidence as to the value of these items. Certain items of personal property, primarily furniture and household items, were then awarded to the parties and to the children.
Appellee was found to be a dependent spouse who had not worked outside of the home during the marriage. The court considered the division of property and other factors before concluding that appellee should be awarded alimony of $2,700 per month. Appellant was ordered to pay all marital debts unless otherwise assigned. Finally, the court awarded appellee an attorney’s fee of $12,000.
The court later modified its letter opinion to provide that appellant would be entitled to be reimbursed for all of his payments on the debt on the marital-residence property from the date of divorce until the date of sale. The court also recalculated appellant’s income to be $14,129 per month. Based on this new income calculation, appellant’s new child-support obligation was $2,065 per month, and alimony was $2,400 per month. The court’s written decree was entered on March 14, 2008.
| ^Appellant filed a motion for a new trial on March 27, 2008, contending that the court’s findings regarding the division of property and marital debt were against the preponderance of the evidence, and that the decisions to award appellee alimony and her attorney’s fees were abuses of the court’s discretion.
Appellant filed his notice of appeal from the decree on April 14, 2008. Appellee filed her notice of cross-appeal on April 28, 2008. The circuit court denied appellant’s motion for new trial by order entered on April 28, 2008. Appellant amended his notice of appeal to include the denial of his motion for new trial on May 27, 2008.
For his first point, appellant argues that the circuit court erred in awarding alimony to appellee. Appellant contends that the circuit court should have awarded appellee rehabilitative alimony for a short period of time to enable her to re-enter the workforce instead of permanent alimony. Appellant also argues that the amount of the award was excessive.
The purpose of alimony is to rectify the economic imbalances in earning power and standard of living in light of the particular facts of each case. Kuchmas v. Kuchmas, 368 Ark. 48, 243 S.W.3d 270 (2006). The primary factors that a court should consider in awarding alimony are the financial need of one spouse and the other spouse’s ability to pay. See id. The circuit court may also consider other factors, including the couple’s past standard of living, the earning capacity of each spouse, the resources and assets of each party, and the duration of the marriage. Johnson v. Cotton-Johnson, 88 Ark.App. 67, 194 S.W.3d 806 (2004). We adhere to no mathematical formula or bright-line rule in awarding alimony. Valetutti v. Valetutti, 95 Ark.App. 83, 234 S.W.3d 338 (2006). The circuit court may make an award of alimony that is reasonable under the circumstances. Kuchmas, supra. The decision whether to award alimony lies within the sound discretion of the circuit court, and we will not reverse absent an abuse of that discretion. Cole v. Cole, 89 Ark.App. 134, 201 S.W.3d 21 (2005).
The circuit court in this case considered the financial circumstances of both parties as well as appellant’s greater earning power, the fact that appellee wanted to go to nursing school to become a registered nurse, and the property division. The court also made the award modifiable upon a change in circumstances. Given these factors as well as appellee’s age (forty-three at the time of trial); the length of the marriage (twenty-one years); appel-lee’s testimony that appellant insisted that she stay home and raise the children; the lifestyle that the parties enjoyed; and ap-pellee’s absence from the full-time job market for nearly twenty years, we cannot say that the circuit court abused its discretion in the award of alimony.
We discuss appellant’s second, fourth, and fifth points together because they all relate to the division of the marital estate and marital debt. In his second point, appellant argues that the circuit court divided the marital property and debt in an unequal fashion in favor of appellee. Appellant’s fourth point is that he should not be required to wait until the parties’ son reaches his majority before the marital residence is sold and the proceeds divided equally. In his fifth point, appellant argues that the circuit court erred in refusing to give him credit for the payments he made on the marital debts during the course of the divorce proceedings. The central theme of appellant’s arguments under these points is that the circuit court made |7an unequal division of the marital property by ordering appellant to pay most of the marital debt, including the mortgage payments on the marital resi dence, and by waiting until the parties’ son reaches majority or graduates from high school before ordering the marital residence sold and the proceeds equally divided.
We review division-of-marital-property cases de novo; however, we will affirm the circuit court’s findings of fact unless they are clearly erroneous, or against the preponderance of the evidence; the division of property itself is also reviewed, and the same standard applies. Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. In order to demonstrate that the circuit court’s ruling was erroneous, the appellant must show that the circuit court abused its discretion by making a decision that was arbitrary or groundless. Id.
Under Arkansas Code Annotated section 9-12-315, all marital property shall be divided equally between the parties unless the circuit court finds such a distribution would be inequitable. See Ark.Code Ann. § 9-12-315(a)(l)(A) (Repl. 2008). Section 9-12-315, however, does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Williams v. Williams, 82 Ark.App. 294,108 S.W.3d 629 (2003). In the present case, the circuit court did not state that it was making an unequal division of the marital property, but merely listed how the property should be equitably divided. Appellant attempts to demonstrate how the record supports his contention |sthat an unequal division was made by listing the marital residence and retirement accounts that were undeniably divided equally, together with the horse trailer and camper appellee received without listing the weapons that he received as part of the property division. As the circuit court noted, there was scant evidence in the record as to the value of the personal property. Of course, the burden is upon the appellant to bring up a record sufficient to demonstrate that there was error below. McLeroy v. Waller, 21 Ark.App. 292, 731 S.W.2d 789 (1987). As we consider the evidence that is in the record, however, the circuit court could have found it was making an equal division of the property. The circuit court is not required in every case to mechanically divide the marital property in kind. Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982). We will not substitute our judgment on appeal as to the exact interest each party should have but will only decide whether the order is clearly wrong. See Page v. Anderson, 85 Ark.App. 538, 157 S.W.3d 575 (2004). It is not.
Even if we could say that the circuit court made an unequal division of the marital property, that is still a result authorized by section 9-12-315. While section 9-12-315 requires the circuit court to consider certain factors and to state the basis for an unequal division of marital property, it does not require the court to list each factor in its order or to weigh all factors equally. See Page, supra. Here, the circuit court complied with the statute when it stated the factors it considered in concluding that the division of the parties’ personal property was equitable.
UThe allocation of marital debt must be considered in the context of the distribution of all of the parties’ property. Bailey v. Bailey, 97 Ark.App. 96, 244 S.W.3d 712 (2006). However, we have held that Arkansas Code Annotated section 9-12-315 and its presumption of equal division does not apply to the division of marital debts. Rudder v. Hurst, 2009 Ark. App. 577, 337 S.W.3d 565; Williams, supra; Ellis v. Ellis, 75 Ark.App. 173, 57 S.W.3d 220 (2001). There is no requirement that the marital debt must be subtracted from the marital assets to determine the “net” value of the total award made to each party in all divorce cases. Williams, supra. A determination that debts should be allocated between the parties on the basis of the relative ability to pay is not a decision that is considered clearly erroneous. Rudder, supra. The evidence of record shows that appellant’s ability to pay far exceeded that of appellee. We are thus unable to say that the circuit court’s allocation of marital debt was clearly erroneous.
Finally, the circuit court has wide discretion in awarding either party the possession of the home, and the award of possession of the home is subject to such terms as the court deems to be equitable and just. Schumacher v. Schumacher, 66 Ark.App. 9, 986 S.W.2d 883 (1999); Hodges v. Hodges, 27 Ark.App. 250, 770 S.W.2d 164 (1989). Appellant’s argument is that the effect of this decision is to either increase his child-support obligation or his alimony obligation to more than one-third of his net monthly income. However, this ignores the fact that the court provided that appellant will recover all of his payments made on the mortgage debt between the entry of the decree and the date of the sale. Appellant will not | monly recover the payments he makes in the interim, he will also share in any increase in the equity of the property.
Appellant’s third point on appeal is that the circuit court’s decision to award appellee $12,000 in attorney’s fees was excessive. He argues that appellee failed to properly document her request. He also argues that appellee spent time pursuing the divorce on fault-based grounds when the court ultimately awarded the divorce to appellant upon eighteen months’ separation. The circuit court has the inherent power to award attorney’s fees in domestic-relations proceedings, and whether the circuit court should award fees and the amount thereof are matters within the discretion of the circuit court. See Miller v. Miller, 70 Ark.App. 64, 14 S.W.3d 903 (2000). In making this determination, the circuit court must consider the relative financial positions of the parties. Jablonski v. Jablonski, 71 Ark.App. 33, 25 S.W.3d 433 (2000).
The circuit court is in a better position than this court to evaluate the services of counsel. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). During the hearing on the motion for a new trial, appellant noted that there was no proof before the court as to the amount of the fees sought. Appellee’s affidavit of financial means presented at trial listed the amount owed appellee’s attorney at approximately $11,000. Her attorney stated in response to a question by the court at the hearing on the motion for a new trial that the amount requested was $20,000. The circuit court may use its own experience as a guide and can consider the types of factors set forth in Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990); but, it need not conduct an exhaustive hearing on the amount of attorney’s fees because it has presided over the proceedings and gained familiarity with the case and the services rendered by the attorney. See Paulson v. Paulson, 8 Ark.App. 306, 652 S.W.2d 46 (1983). Further, this court has not strictly required documentation of time and expense in a divorce case where the circuit court has the opportunity to observe the parties, their level of cooperation, and their obedience to court orders. See Deaton v. Deaton, 11 Ark.App. 165, 668 S.W.2d 49 (1984).
We do not believe that the circuit court abused its discretion in deter mining the amount of the attorney’s fee. The court noted the disparity in income between the parties in deciding to award appellee alimony. Disparity in incomes is a relevant factor for the circuit court to consider, but standing alone it will not justify an award of attorney’s fees. Davis v. Williamson, 359 Ark. 33, 194 S.W.3d 197 (2004). The court also considered other proper factors including the experience and ability of the attorney, the time spent at trial and during post-trial motions, and the results obtained. See Chrisco, supra. The circuit court also noted that appellant was not fully cooperative during discovery concerning his income and assets. See Deaton, supra. Presumably, the court considered appellee’s attempt to obtain the divorce on fault grounds when it reduced the requested fee from $20,000 to $12,000.
As her sole point on cross-appeal, appel-lee asserts that the circuit court erred in calculating appellant’s income for child-support purposes. She contends that appellant’s income is $20,913 per month, instead of the $14,129 found by the circuit court.
|12We must first determine whether we have jurisdiction to hear appellee’s cross-appeal. Appellant filed a motion to dismiss appellee’s cross-appeal in which he argues that the notice of cross-appeal was untimely. Although we denied the motion on July 29, 2009, appellant raises the issue again in his brief in response to appellee’s argument on cross-appeal. We have jurisdiction over the cross-appeal.
Arkansas Rule of Appellate Procedure-Civil 4(a) provides that, except as otherwise provided in subsequent sections of this rule, a notice of appeal shall be filed within thirty days from the entry of the judgment, decree, or order appealed from. The rule also provides that a notice of cross-appeal shall be filed within ten days of receipt of the notice of appeal. Arkansas Rule of Appellate Procedure-Civil 4(b)(1) provides that, upon the timely filing in the circuit court of a motion for new trial under Ark. R. Civ. P. 59(b), the time for filing the notice of appeal shall be extended for all parties and that the notice of appeal shall be filed within thirty days from the entry of the order disposing of the last motion or the deemed denial of the motion. Arkansas Rule of Appellate Procedure-Civil 4(b)(2) provides that a notice of appeal filed prior to the disposition of a motion for new trial, or another of the motions listed in Rule 4(b)(1), shall be treated as filed on the day after the entry of an order disposing of the motion.
In the present case, the circuit court entered its divorce decree on March 14, 2008. Appellant filed his motion for new trial on March 27, 2008. He then filed his notice of appeal from the decree on April 14, 2008. The circuit court denied appellant’s motion for new trial 11son April 28, 2008. Under Rule 4(b)(2), the April 14 notice of appeal was treated as filed on April 29, 2008, the day after the circuit court entered its order denying the motion for new trial. Appellee’s notice of cross-appeal was filed on April 28, 2008, shortly after the entry of the order denying the motion for new trial, and cannot be untimely.
We now turn to the merits of the argument. This argument affects both the award of child support and the award of alimony. Our standard of review for an appeal from a child-support order is de novo on the record. Parker v. Parker, 97 Ark.App. 298, 248 S.W.3d 523 (2007). As a rule, when the amount of child support is at issue, we will not reverse the circuit court absent an abuse of discretion. Id. It is the ultimate task of the circuit court to determine the expendable income of a child-support payor. Id. This income may be different from income for tax purposes. Cole, supra.
The circuit court ultimately found appellant’s monthly income to be $14,129. Based on this figure, the court fixed appellant’s child support at $2,065 per month. Appellee argues that the circuit court erred in calculating appellant’s income because appellant is able, according to appellee, to hide income under the guise of “overhead” prior to the calculation of his income. She points to testimony that appellant was participating in a voluntary, deferred-compensation program. Appellant was contributing approximately $26,000 to this program. If he had not participated, this money would have been paid to appellant. In calculating appellant’s income, the circuit court, at appel-lee’s request, added $2,500 of deferred compensation back into appellant’s year-to-date income. This, therefore, seems to | ube a case in which the circuit court did what it was asked to do. An appellant (here, appellee) may not complain on appeal that the circuit court erred if she induced, consented to, or acquiesced in the circuit court’s position. Parker, supra.
Appellee also argues that the circuit court should have averaged the income shown in appellant’s recent tax returns. The child-support guidelines suggest that income should be averaged only for self-employed persons and the circuit court found that appellant was not self-employed as that term is used in the guidelines. Appellee has not demonstrated that the method employed by the circuit court was clearly erroneous. It is her burden to demonstrate reversible error. Parker, supra.
Affirmed on direct appeal; affirmed on cross-appeal.
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WAYMOND M. BROWN, Judge.
| Appellee William B. Jones sustained a compensable back injury on June 6, 2005, while working for appellant R.C. Landscaping (RCL). Jones’s injury occurred when a tractor rolled over him, breaking his back in multiple places. He sought additional benefits and a hearing was held before the Administrative Law Judge on April 23, 2008. The parties stipulated that Jones’s healing period ended on October 25, 2005. They also stipulated that Jones suffered an eleven-percent impairment to the body as a whole. The issues litigated at Lthe hearing were the amount of Jones’s permanent physical impairment; wage loss/permanent total disability; second-injury fund liability; and controverted attorney’s fees. The ALJ issued an opinion on July 10, 2008, finding that Jones had suffered a seventeen-percent permanent physical impairment to the body as a whole; that Jones was permanently totally disabled; that the Second Injury Fund was liable for the payment of permanent total disability benefits; and that Jones was entitled to attorney’s fees. The Second Injury Fund appealed the ALJ’s decision to the Arkansas Workers’ Compensation Commission. The Commission reversed the ALJ’s decision. In its April 7, 2009 opinion, the Commission found that Jones failed to prove that he was permanently and totally disabled but that he proved wage-loss disability in the amount of forty percent. The Commission also found that the Second Injury Fund had no liability.
Appellants RCL and its insurer, Fir-stComp Ins. Co., appeal the Commission’s decision, raising three points for reversal: 1) that the Commission’s opinion offers no true majority opinion from which this Court may conduct a meaningful review; 2) that the Commission erred in finding that Jones was entitled to forty-percent wage-loss disability; and 3) that the Commission erred in finding that the Second Injury Fund had no liability for wage-loss disability. Jones cross-appeals, contending that the Commission erred in finding 1) that he was not permanently and totally disabled and 2) that he was only entitled to wage-loss disability in the amount of forty percent. We affirm the direct appeal and cross-appeal.
|sIn reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. It is the Commission’s function to determine witness credibility and the weight to be afforded any testimony. The Commission must weigh the medical evidence and, if such evidence is conflicting, its resolution is a question of fact for the Commission. The Commission’s resolution of the medical evidence has the force and effect of a jury verdict. Jones testified that he was sixty-one years old; that he had a seventh-grade education; that he had “done mostly foundry work”; and that his back was preventing him from going back to work. He acknowledged that he had drawn Social Security before going to work for RCL due to a head injury received in a car accident. According to Jones, RCL was aware that he was drawing disability. Jones stated that since the June 6, 2005 injury, he has difficulty standing longer than fifteen minutes, lifting anything, and kneeling. Jones said that he had not worked since the injury and that he did not know of any type of work he could do. On cross-examination, Jones stated that he injured his head between 1959 and 1960. He said that due |4to his head injury, his “memory is vague.” However, he testified that prior to the 2005 compensable injury he was able to fill out applications and read and write “pretty good.” Jones stated that in November 2004 John Miles was overseeing his money from Social Security. According to Jones, his head injury prevented Social Security from sending the funds directly to him. He stated that he currently lives alone but that his nephew and his nephew’s wife come daily to check on him and make sure he has what he needs. Jones testified that he burns things when he cooks because he forgets about them. He told the ALJ that his back is worse compared to October 2005. Jones further testified that his doctor told him that he could not go back to work; that Randy Carroll told him that he could not return to work; and that he would have returned to work had Carroll allowed him. According to Jones, he injured his head when he was about fourteen or fifteen years old and he was able to do “all kinds of work since then[.]” He stated that he did not have any trouble working until his compensable injury. Jones said that his memory problems started after his compensable injury; however, he testified that his “back is the main problem [he has] in getting around and working.”
Randy Carroll testified that he owned RCL and that he was aware that Jones was getting Social Security when he hired him. He stated that Jones wanted to come back to work but that Jones could not produce a doctor’s note releasing him back to work. According to Carroll, he was never aware that Jones was released by his doctor to return to work without any restrictions. Carroll stated that Jones never came to him after October |s2005. Carroll testified that had Jones presented him with a doctor’s release, Jones would have had a job at the same rate of pay he had in the past.
On cross-examination, Carroll stated that he had known Jones since the 1970s when Jones worked for Carroll’s father. He stated that Jones worked for him in some capacity for three and a half to four years. On re-cross, Carroll stated that Jones was “always physically able to perform the job duties.”
Heather Taylor testified that she was a vocational counselor at Systemedic Corporation. She stated that she was asked to perform a rehabilitation evaluation on Jones. According to Taylor, she reviewed reports from Dr. Kornblum and the deposition testimonies of Jones and Carroll. Taylor opined that Jones was physically capable of working but that his mental defects caused her some concerns:
I read a report from Dr. Kornblum that indicated that by the end of 2005, he did not anticipate any permanent work restrictions. I’ve not seen anything to indicate any restrictions from a doctor that indicate that he is unable to work. The only statement I see about being disabled from Dr. Simard is that it says “the patient is disabled secondary to that injury.” I don’t see anything related to functional abilities. This would have been in October of 2007. As we sit here today, I am not aware of any actual functional restrictions that were placed on Mr. Jones as far as his back injury is concerned_As far'as his back injury, since Dr. Kornblum released him -with no restrictions, he would be able to do these jobs from a physical standpoint. I did have some concerns from a mental standpoint in that he had very significant mental deficits.... Poor memory and significant cognitive components would be the greatest barrier in returning to work.... None of the things ... would be related to his back injury.
Taylor stated that she referred Jones to Dr. A.J. Zolten for neuropsychological testing and that based on the report she received from him, she did not make any vocational recommendations for Jones. Taylor also stated that Dr. Zolten ordered a CT scan for Jones. Taylor opined that Jones would not be successful in returning to the work force. She stated |fithat from a physical, standpoint, Jones could possibly do unskilled labor, but that he possessed mental deficiencies that were potential barriers.
On cross-examination, Taylor stated that she had reservations about Jones returning to work due to his “significant mental problems.” She testified that she did not know if Jones’s mental problems were worse since his compensable injury. She stated that she believed Jones “had a very good employer that was willing to work around his deficits.” When asked about Dr. Simard’s October 5, 2007 report, Taylor stated that if she were going to rely on an opinion that Jones was disabled secondary to his compensable injury, she would have to “ask the doctor if there were any functional abilities that [Jones] could perform or whether or not [the doctor] was indicating that [Jones] was totally disabled from work.” She further stated that she would like to have clarified Dr. Simard’s report with him, but that she was never furnished that report.
On redirect, Taylor stated that she could have ordered a functional capacity evaluation in this case but she did not because Dr. Kornblum stated in his report that he did not anticipate permanent restrictions.
Jones’s deposition testimony was admitted as evidence. In the deposition, Jones testified that he never had any neck and back injuries prior to his compensable injury in 2005. According to Jones, he began receiving disability after he fell off of a porch and broke his jaw about twenty years ago. He stated that he did not know if the fall caused brain injury or how it affected his mind. Jones said that his head “is all right right now, but [he] get[s] a little confused.”
|7RCL’s first point on appeal is that there was no true majority opinion from which to conduct a meaningful review. RCL cites Wright v. American Transportation for its proposition that the “Commission is obliged to make findings and conclusions with sufficient detail and particularity to allow the Court to decide whether its decision is in accordance with the law.” RCL contends that the Commission’s opinion failed to do so, and must be reversed.
Commissioner Bell authored an opinion, which reversed the ALJ’s decision. In that opinion, Commissioner Bell stated that Jones was not permanently and totally disabled. Commissioner McKinney concurred with Commissioner Bell that Jones was not permanently and totally disabled. Commissioner Bell’s opinion granted Jones forty-percent wage-loss disability and Commissioner Hood concurred with this decision. Commissioner Bell’s opinion also stated that there was no SIF liability and Commissioner McKinney concurred. Two out of three commissioners agreed that Jones should receive forty-percent in wage-loss disability, that Jones was not permanently and totally disabled, and that the SIF had no liability. Therefore, RCL’s claim that there was not a majority opinion in which to conduct a meaningful review is without merit.
Next, RCL argues that substantial evidence does not support the Commission’s award of forty-percent wage-loss disability to Jones. Jones argues on cross-appeal that the Commission erred in awarding him only forty-percent wage-loss disability and by denying him permanent total disability.
|sThe wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. When a claimant has an impairment rating to the body as a whole, the Commission has the authority to increase the disability rating based upon wage-loss factors. The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other factors affecting wage loss, such as the claimant’s age, education, and work experience. Motivation, post-injury income, credibility, demeanor, and a multitude of other factors are matters to be considered in claims for wage-loss disability benefits in excess of permanent physical impairment. A claimant’s lack of interest in pursuing employment with his employer and negative attitude in looking for work are impediments to the full assessment of wage loss.
Commissioner Bell’s opinion denied Jones permanent total disability but it granted him wage-loss disability in the amount of forty percent:
The claimant is age 62 and has very little formal education. The claimant testified that his reading and writing ability are very limited. The claimant’s work history includes primarily unskilled labor....
In January 2008, the vocational consultant noted the claimant’s work history of unskilled manual labor in addition to the claimant’s limited academic abilities. The vocational consultant opined that the claimant “has no transferable skills, as he has only performed unskilled labor his entire working life.... it is my opinion that his 19chances of returning to the workforce with another employer are very poor. Therefore, I am not recommending a vocational rehabilitation plan for Mr. Jones.” Nevertheless, the consultant also opined that the claimant “does not appear to have any permanent physical limitations as a result of his 6/05 injury-Mr. Jones told me he is ‘done with’ working and does not think he can do much anymore.”
The claimant informed the vocational consultant that he did not intend to try and return to work. The Full Commission notes the claimant’s testimony in 2006 that he did not intend to return to work. The record in the present matter demonstrates that the claimant is not motivated to seek suitable employment within his physical abilities. Dr. Korn-blum did not assign any permanent physical restrictions. The claimant’s lack of interest in returning to work and his negative attitude are an impediment to a full assessment of the claimant’s wage-loss disability, and his demonstrated lack of motivation can be considered by the Commission. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). The vocational consultant opined that the instant claimant had the physical ability to return to work, albeit apparently not with the respondent-employer. The claimant has proved that he sustained 40% wage-loss disability in addition to 17% anatomical impairment. The claimant did not prove by a preponderance of the evidence that he was permanently and totally disabled as a result of his compensable injury.
Commissioner Hood wrote an opinion concurring with the grant of forty-percent wage-loss disability. Substantial evidence supports the Commission’s award of forty-percent wage-loss disability benefits. Accordingly, we affirm the Commission on this point. Substantial evidence also supports the Commission’s conclusion that Jones was not permanently and totally disabled. Therefore, we affirm the Commission on this point also.
Finally, RCL argues that the Commission erred in finding that the Second Injury Fund had no liability. For the Second Injury Fund to be liable under workers’ compensation law, three hurdles must be met: 1) the employee must have suffered a compensable injury at his current place of employment; 2) prior to that injury, the employee must have had a permanent partial disability or impairment; and 3) the disability or impairment must have Imcombined with the recent compen-sable injury to produce the current disability status. The Second Injury Fund is obligated to provide compensation for any disability greater than the disability resulting from the earlier injury and the anatomical impairment caused by the second injury. According to Commissioner Bell’s decision, Jones’s injury did not give rise to Second Injury Fund liability:
There is no probative evidence before the Commission demonstrating that pri- or to the compensable injury the claimant had a permanent partial disability or impairment. The Full Commission rec ognizes Dr. Kornblum’s June 24, 2005 notation, “PSH: Unknown cranial procedure — MVA,” Dr. Kornblum’s notation of an unknown cranial procedural is not probative evidence demonstrating that there was a prior permanent partial disability or impairment. During the May 26, 2006 hearing before the Commission, there was no indication in the claimant’s lengthy detailed testimony that he was suffering from a “mental deficit” resulting from a prior permanent partial disability or impairment. The claimant testified that he began receiving Social Security disability in the 1980’s after falling from a porch and breaking his jaw. There is no evidence before us demonstrating that the claimant had a permanent partial disability or impairment involving his jaw. Nor is there any evidence demonstrating a “mental deficit” as a result of the claimant’s fall from a porch.
Dr. Zolten opined that the claimant had limited cognitive abilities but noted, “He has a remote history of a possible closed head injury, but I do not think that this is contributory to his current functioning right now.” A CT of the claimant’s brain was taken on April 17, 2008. This diagnostic test showed ischemic change in the white matter, a “possible remote” cerebrovascular accident, and “no evidence for an acute intracranial event or hemorrhage.” Neither Dr. Zolten’s report nor the CT of the brain are probative evidence demonstrating that the claimant had a prior disability or impairment involving his brain. Nor does the record show that the claimant had “mental deficits” resulting from a motor vehicle accident.
|n Even if there was a permanent partial disability or impairment prior to the compensable injury, which the evidence before the Commission does not demonstrate, there was no proof that a disability or impairment combined with the recent compensable injury to produce the claimant’s current disability status. The claimant expressly testified that he considered himself unable to work “on account of my back.” We note the claimant’s testimony of record at the April 5, 2006 deposition that a possible remote head injury “doesn’t affect me” with regard to the claimant’s ability to return to work. Neither the claimant’s testimony nor the documentary evidence before us demonstrates that there was a “combination” producing the claimant’s current disability status.
Commissioner McKinney wrote an opinion concurring with Commissioner Bell’s conclusion that there was no SIF liability. According to Commissioner McKinney, “the evidence is crystal clear that the claimant’s disability status is due to his prior head injury and not due to his work-related injury with the respondent employer.”
The commissioners explained why the Second Injury Fund was not liable, and substantial evidence supports this decision. Therefore, we affirm.
Affirmed on direct appeal; affirmed on cross-appeal.
VAUGHT, C.J., agrees.
PITTMAN, J., concurs.
. The compensability of appellee’s injury was adjudicated in a March 26, 2006 hearing before the Arkansas Workers’ Compensation Commission.
. Dr. Jeffrey Kornblum’s note for that date indicated that Jones should avoid any lifting over thirty pounds through the end of the year and that he should also avoid any shoveling through the end of the year.
. There was no appeal of Jones’s seventeen-percent impairment rating.
. Foster v. Express Pers. Servs., 93 Ark. App. 496, 222 S.W.3d 218 (2006).
. Jivan v. Economy Inn & Suites, 370 Ark. 414, 260 S.W.3d 281 (2007).
. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003).
. Id.
. Jim Walter Homes v. Beard, 82 Ark. App. 607, 120 S.W.3d 160 (2003).
. 18 Ark. App. 18, 709 S.W.2d 107 (1986).
. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000).
. Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201 S.W.3d 449 (2005).
. Id.
. Henson v. Gen. Elec., 99 Ark. App. 129, 257 S.W.3d 908 (2007).
. Logan County v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005).
. Rice v. Georgia Pacific Corp., 72 Ark. App. 148, 35 S.W.3d 328 (2000).
. id. | [
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RITA W. GRUBER, Judge.
| Appellant Jimmie Carpenter sued ap-pellees, Rory and Kathy Layne, for conversion and for collection of money he contended that he loaned to appellees. After a hearing, the circuit court found that all payments made to the Laynes were authorized and, therefore, that there was no conversion and that all money loaned by Mr. Carpenter to the Laynes had been repaid in full. We find no clear error and affirm the trial court’s order.
Mr. Carpenter, an eighty-two-year-old man, was married to Mr. Layne’s step-grandmother until she died in 2003. Mr. Carpenter and Mr. Layne did not have much contact, however, until 2001. In 2001, while the Carpenters were living in California and Mr. Layne was living in Arkansas, Mrs. Carpenter called Mr. Layne to ask him if he would come and help her take care of Mr. Carpenter while he was recovering from a broken hip. Mr. Layne spent part of November and December in California. Mr. Layne testified that, 12while he was in California, he told the Carpenters that he would like to be able to buy “his own place” and that they expressed their willingness to help.
Shortly after Mr. Layne returned to Arkansas, he called Mr. Carpenter and told him that he had found some property. Mr. Carpenter gave Mr. Layne $50,604 in January 2002, and Mr. Layne used the money to buy 33.5 acres of land, on which he put a house trailer. Mr. Layne testified that Mr. Carpenter did not mention repayment of the money, and Mr. Layne did not sign a note or mortgage. Several weeks later, the Carpenters told Mr. Layne that they wanted something in writing to ensure that if something happened to him, they would get the $50,000 back. Mr. Layne prepared a will stating that, in the event he predeceased the Carpenters, “I wish to return to them the amount of $50,000 from my estate before any other requests.” He sent the will to the Carpenters, and nothing more was said about the money until this lawsuit.
Mrs. Carpenter passed away in December 2003, and Mr. Carpenter began calling Mr. Layne “crying, complaining, and depressed.” Mr. Layne testified that Mr. Carpenter asked him to move to California. Mr. Layne said that he could not, but he told Mr. Carpenter that he could move to Arkansas and he would help him. In February 2004, Mr. Carpenter had a power of attorney prepared for Mr. Layne and mailed it to him. In April 2004, Mr. Carpenter stayed with Mr. and Mrs. Layne to see if he wanted to move to Arkansas. He decided to move and bought a lot in Greenwood on which to build a house. He returned to California for several months, sold his home, and then lived with the Laynes for four |amonths while his house was being completed.
Both Mr. Carpenter and Mr. Layne testified that, between 2004 and 2006, Mr. Carpenter loaned the Laynes money to pay for various repairs and improvements to Mr. Layne’s property. Mr. Layne also testified that, from 2004 through 2006, he helped Mr. Carpenter with chores around his house. On May 18, 2006, Mr. Carpenter was diagnosed as being legally blind. After he became legally blind, Mr. Carpenter took Mr. Layne to Arvest Bank and had Mr. Layne’s name added to his account. Mr. Layne began helping Mr. Carpenter pay his bills. Mr. Layne also testified that Mr. Carpenter stopped driving and that, if he needed to go anywhere, either he or Mrs. Layne would take him. In March 2007, using his power of attorney, Mr. Layne had his name added to Mr. Carpenter’s account at Farmer’s Bank. The parties dispute whether Mr. Carpenter authorized this action. Up until this point, Mr. Layne had not written any checks on Mr. Carpenter’s account that benefitted him or Mrs. Layne.
Mr. Layne testified that, in May 2007, he spoke with Mr. Carpenter and Bea Stadler, a friend of Mr. Carpenter’s, about Ms. Stadler’s suggestion that Mr. Carpenter be put in a nursing home because he could not take care of himself. Ms. Sta-dler testified that this conversation occurred in May 2006. In any ease, Mr. Layne testified that he offered, instead, to take care of Mr. Carpenter for $25 per hour. Mr. Layne testified that Mr. Carpenter said it was a good idea; Mr. Carpenter testified that Mr. Layne offered to take care of him for $15 per hour and he told Mr. Layne that he wasn’t interested in that. Mr. Layne testified that he |4began taking care of Mr. Carpenter and paying all of his bills in May 2007 under an agreement with Mr. Carpenter that he would pay him $25 per hour. Shortly thereafter, he and Mrs. Layne realized that $25 an hour was too much given the number of hours Mr. Layne was devoting to Mr. Carpenter’s needs and agreed that $2,000 a month was fair. He testified that he and Mr. Carpenter thereafter agreed on the flat rate of $2,000 per month.
Mr. Layne testified that Mr. Carpenter would stack his mail in sorted piles on his kitchen table and that he and Mr. Carpenter would sit down at the table together and pay bills. He testified that he wrote 99% of the checks on both the Arvest and the Farmer’s accounts. Mr. Layne stated that he wrote the $2,000 check each month to his wife because she did most of the banking in his family. He testified that he never discussed making the checks payable to Kathy Layne because Mr. Carpenter never asked. “Everything was on the table and we just paid bills. I would just tell him that I was getting paid.” He also testified that Mr. Carpenter was very careful about watching his business and that he would read the bills and bank statements in his viewer. In addition to the monthly checks to Mrs. Layne for $2,000, there were several checks for other amounts payable to Mr. Layne. Mr. Layne explained a check in the amount of $500 on June 5, 2007, as a gift from Mr. Carpenter because Mr. Layne was not working and was behind on his bills. He explained a check in the amount of $650 as additional money from Mr. Carpenter to pay insurance that was due that Mr. Layne did not have money to pay. A check payable to Mr. Layne in the amount of $2,400 was the monthly $2,000 plus $400 for a pallet of pellets for which Mr. Carpenter 15was reimbursing Mr. Layne. He testified that a check to Barling Boat Sales in the amount of $327.69 was for a GPS for his boat. He said that he and Mr. Carpenter were looking at some things in the boat store and that Mr. Carpenter bought it for him because he liked to fish.
With regard to the alleged loans, Mr. Layne testified that Mr. Carpenter loaned him $6,466: $5,000 to put in a driveway and sidewalk, $266 for additional brick work, and $1,200 for siding. He testified that he and his wife repaid the money that Mr. Carpenter loaned to them in installments of $200 per month and then in installments of $400 per month between April 2004 and April 2006, when the loan was paid off. Mr. Layne introduced can-celled checks and his wife’s recorded ledger to support this testimony. He testified that Mr. Carpenter acknowledged in April 2006 that the loan was paid off and that the parties were on good terms. He testified that the alleged loans for which Mr. Carpenter was seeking repayment had been gifts: $50,000 for the land; $7,000 for siding, which Mr. Carpenter paid directly to the siding contractor; $4,500 for brick work, also paid directly to the contractor; and $4,000 to $5,000 in other gifts. He testified that none of the loans were put in writing and that Mr. Carpenter did not mention these alleged loans until he filed a complaint.
Mrs. Layne testified that she would occasionally go with her husband to Mr. Carpenter’s when they were paying bills. She said that when they arrived, the bills would be on the kitchen table in sorted piles: junk mail, bills, and bank statements. She said that Mr. Carpenter would say that he had looked through the bank statements with his magnifying viewer and would put them in his black notebook. Then he and Mr. Layne would discuss Ifithe bills and pay them. Mr.Carpenter might get out his magnifying glass to look, Mr. Layne would write the checks, and they would put them in envelopes. She testified that Mr. Carpenter would tell her from time to time that she should take the checks to the bank because he did not like them lying around. With regard to the loans, she testified that they had borrowed $6,466 from Mr. Carpenter; that she kept a ledger documenting the loan and the installment payments; and that the loan was paid in full in April 2006. She testified that Mr. Carpenter had not demanded money for repayment of alleged loans from April 2006 until he filed a complaint two years later.
Ms. Stadler testified that Mr. Carpenter told her from time to time that he gave money to Mr. Layne. She said it was apparent that he trusted Mr. Layne. She also testified that Mr. Layne would drive Mr. Carpenter from Greenwood to visit her in Harrison three or four times a year. She testified that Mr. Carpenter paid for her to take a trip to Alaska with him.
John Phillips, a friend of the Laynes, testified that he had been with Mr. Carpenter at the Laynes’ for dinner once. He said he got the impression from Mr. Carpenter that he had paid for the new concrete, brick work, and siding at the Laynes’ home as a gift. He said after he moved away, he often called Mr. Layne and Mr. Layne would be driving Mr. Carpenter to the doctor in Little Rock or taking him to Harrison. He said that he thought Mr. Layne spent a considerable amount of time with Mr. Carpenter.
Mr. Carpenter denied that he agreed to pay Mr. Layne for his help. He also denied that Mr. Layne was taking care of him. Rather, he said that Mr. Layne came to the house |7only about four times per month to help him. He often called Mr. Layne, he said, because he wanted to “see ■how he was” and “just chit chat with him.” He admitted that he would also call him to set up an appointment for Mr. Layne to drive him to the doctor or to the grocery store about once a week. He testified that he did not authorize Mr. Layne to become a signator on his Farmer’s Bank account and that he had no idea Mr. Layne was writing cheeks to Mrs. Layne on that account. He denied authorizing any of the checks written to Mr. or Mrs. Layne or on their behalf. But he did admit that he gave gifts to people “all of the time.” He said that when Ms. Stadler’s granddaughter needed a car, he gave her $2,000 to help. He also testified that he gave gifts of money to his friend, Mr. Ballard. He said that he bought Mr. Layne a full bedroom set and gave him a $1,000 rifle. While Mr. Carpenter admitted on cross-examination that the $50,000 he gave to Mr. Layne for the property was not a loan but a gift, he denied that any other money he spent on the Laynes’ home was a gift. At the close of Mr. Carpenter’s case, the court granted the Laynes’ motion to dismiss Mr. Carpenter’s claim regarding this alleged $50,000 loan.
With regard to the other allegedly unpaid loans, he testified that he kept track of his loans to Mr. Layne on a piece of paper, introduced as an exhibit at trial. In addition to the amounts listed by the Laynes on their document detailing the loans and payments, Mr. Carpenter contended that amounts of $1,961.72, $2,816, and $500 for brick work at the Laynes’ home were loans, not gifts as Mr. Layne contended. He also listed as a loan the amount of $4,500 for a driveway that Mr. Layne claimed was a gift. Finally, Mr. Carpenter | ^contended that $7,996 for siding was not a gift, as Mr. Layne claimed, but a loan. Mr. Carpenter did not recall telling Mr. Layne that only $1,200 of that amount was being loaned and that the remainder was a gift. Finally, his explanation for why payments stopped in early 2006 without his making further demand for payment on the Laynes was that Mr. Layne lost his job with the mining company and could not afford to make payments at thát time. He said that he assumed payments would resume once Mr. Layne began working.
On March 5, 2008, after returning from eating together, the parties came to an impasse. Mr. Carpenter confronted Mrs. Layne with a cancelled check made out to her on his account and accused her of stealing from him. She denied any wrongdoing and left Mr. Carpenter’s house. Mr. Layne attempted to remind Mr. Carpenter of their alleged agreement, but he was unable to reconcile with him. The parties have not spoken since that day.
Mr. Carpenter then filed a complaint against the Laynes, alleging that they had converted $22,049.09 from his bank accounts and that they had failed to pay back $61,077 loaned to them by Mr. Carpenter. After a bench trial, the trial court entered a judgment on May 13, 2009, finding against Mr. Carpenter on both claims. Specifically, the court found that Mr. Carpenter worked for forty years as a bookkeeper at Edison Electric, had been financially successful, had accumulated assets, and thus was knowledgeable about financial affairs. The court found that Mr. Carpenter requested Mr. Layne’s help with his affairs, agreed to pay him $2,000 each month for his services, and was aware of the $2,000 monthly Rpayments written by Mr. Layne. The court also found that Mr. Carpenter had a history of making gifts to others in addition to the Laynes. The court found that, although a fiduciary relationship existed between Mr. Carpenter and Mr. Layne, Mr. Layne did not put Mr. Carpenter in a position of fear, exercise a controlling influence over him, or overreach Mr. Carpenter in any of their financial dealings. The court also found that Mrs. Layne was not involved in any of the financial dealings with Mr. Carpenter and granted her motion to dismiss the claims against her. Finally, the court found the testimony of the Laynes persuasive and found that the money loaned to them by Mr. Carpenter had been repaid in full. Accordingly, the court dismissed the case. Mr. Carpenter brought this appeal.
Our standard of review on appeal from a bench trial is whether the trial judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 249, 961 S.W.2d 729, 733 (1998); Ark. R. Civ. P. 52(a). We view the evidence in a light most favorable to the appellees, resolving all inferences in favor of the appellees. See McSparrin v. Direct Ins., 373 Ark. 270, 272, 283 S.W.3d 572, 574 (2008). Disputed facts and determinations of the credibility of witnesses are within the province of the factfinder. McQuillan, 331 Ark. at 249, 961 S.W.2d at 733.
Mr. Carpenter’s first point on appeal is that the trial court erred in finding that Mr. Layne did not unduly influence Mr. Carpenter or convert Mr. Carpenter’s money from his bank accounts. We note first that Mr. Carpenter’s complaint did not allege undue influence. |1f)The trial court did make a finding, however, that although a fiduciary relationship existed, Mr. Layne did not put Mr. Carpenter in a position of fear, exercise a controlling influence over Mr. Carpenter, or overreach him in any of their financial dealings. The court found that Mr. Carpenter was strong-willed and self-reliant and that he was aware of all of the financial transactions between the parties.
It is undisputed that the parties were in a fiduciary relationship: a person who holds a power of attorney is an agent, and “a fiduciary relationship exists between principal and agent in respect to matters within the scope of the agency.” Dent v. Wright, 322 Ark. 256, 261, 909 S.W.2d 302, 304 (1995). But there is no undue influence in the transfer of property “when there has been no showing that the donees said or did anything to put the donor in a position of fear or that they committed fraud on her or overreached her in any way.” Id. Mr. Carpenter never testified that he was afraid of Mr. Layne. Further, we find no clear error in the trial court’s finding that the parties entered into an agreement pursuant to which Mr. Carpenter would pay Mr. Layne $2,000 per month for his services and that Mr. Carpenter was aware that Mr. Layne was writing these checks each month.
Mr. Carpenter also argues that the court erred in finding that Mr. Layne’s actions were authorized. Conversion is a common-law tort action for the wrongful possession or disposition of another’s property. McQuillan, 331 Ark. at 247, 961 S.W.2d at 732. One commits the tort of conversion when he wrongfully commits a distinct act of dominion over the property of another which is inconsistent with the owner’s rights. Dent, 322 Ark. at 262, 909 S.W.2d at 305.
In this case, Mr. Layne had authority to write checks on both accounts because he held a power of attorney and was a signator on both accounts. Mr. Layne testified that he and Mr. Carpenter agreed that he would be paid $2,000 each month as payment for his help. Mr. Layne also testified that the additional amounts given to him or Mrs. Layne were gifts from Mr. Carpenter. Although Mr. Carpenter disputed this testimony, the court apparently believed Mr. Layne. The testimony of an interested party is taken as disputed as a matter of law. Ester v. Nat’l Home Ctrs., Inc., 335 Ark. 356, 981 S.W.2d 91 (1998). Further, where the pivotal issue is the credibility of interested parties whose testimony is in direct conflict, we defer to the trial judge’s determination. Taylor v. George, 92 Ark.App. 264, 271, 212 S.W.3d 17, 23 (2005). The trial judge, as the finder of fact, found the testimony of Mr. Layne to be more credible than the testimony of Mr. Carpenter and resolved any conflicts in the testimony in Mr. Layne’s favor; we are bound by his determinations and hold that his finding was not clearly erroneous.
For his next point on appeal, Mr. Carpenter contends that the trial court erred in dismissing his claim against Mrs. Layne for the checks written to her. A motion to dismiss is identical to a motion for a directed verdict in a jury trial and is a challenge to the sufficiency of the evidence. Drummond v. Shepherd, 97 Ark. App. 244, 246, 247 S.W.3d 526, 528 (2007). On appeal, we review the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable 112inferences deducible therefrom. Id. A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Id. Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Id.
In this case, the court granted Mrs. Layne’s motion to dismiss because it found that Mr. Carpenter dealt only with Mr. Layne and that Mrs. Layne did not have anything to do with the alleged conversion of funds or the loans to Mr. Layne. Mr. Layne was responsible for putting her name on the checks. Both Mr. and Mrs. Layne testified that Mrs. Layne was not part of the conversation when Mr. Carpenter and Mr. Layne agreed upon payment for services; Mr. Carpenter denied that any conversation had taken place. There was no testimony that Mrs. Layne wrote any of the checks or got involved in any of Mr. Carpenter’s finances. The testimony established that the checks were made out in her name as a convenience. Finally, Mr. Carpenter himself testified that he dealt with Mr. Layne and loaned money to Mr. Layne. Mr. Carpenter made no showing that Mrs. Layne had any involvement in the alleged conversion or that he loaned her any money. Therefore, it was not error for the trial court to dismiss the claim against Mrs. Layne.
Finally, Mr. Carpenter contends that the trial court erred in dismissing his claim against the Laynes for repayment of outstanding loans. Once again, the court heard conflicting testimony on this issue and reviewed conflicting documentary evidence. Resolution of conflicts in testimony and assessment of witness credibility are for the finder of fact. Loy v. State, 88 Ark.App. 91, 195 S.W.3d 370 (2004). The court found the Laynes’ testimony regarding the loans persuasive. We hold that the court’s finding was not clearly erroneous.
Affirmed.
VAUGHT, C.J., and GLOVER, J., agree. | [
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LARRY D. VAUGHT, Chief Judge.
| TThis is a legal malpractice case filed by Charles Grassi, Sr., against appellees James Hyden and his firm, Hyden, Miron & Foster, PLLC. Grassi appeals from the circuit court’s entry of judgment on a directed verdict for appellees. We affirm.
In the late 1990s, Hyden and Grassi discussed Grassi’s options regarding the disposition of his majority interest in Pierce-Grassi Lumber Company, Inc., in Crossett, upon his retirement. One of the options they discussed was the formation of an Employee Stock Ownership Plan (ESOP), which would purchase Grassi’s shares in the corporation. When an owner of a business creates an ESOP, he sells his shares to the ESOP, which borrows money for the purchase. The | {.business makes annual contributions to the ESOP, which uses the money to retire the debt; over time, the debt is repaid, and the employees have separate retirement accounts containing shares in the business. ESOPs must be created in compliance with the Internal Revenue Code, which mandates that the annual contributions to the ESOP cannot exceed twenty-five percent of the W-2 compensation of employees who are eligible to participate in the plan. The allocations must be sufficient to service the debt.
Following Hyden’s advice, Grassi entered into a purchase agreement with the business and the ESOP on June 2, 1999. Grassi sold 380 shares of the corporation to the ESOP in exchange for $725,900. The First National Bank of Crossett financed the sale with a loan of $625,000 to the corporation, which loaned that amount to the ESOP. The corporation paid for the balance of the purchase with contributions to the ESOP. First National Bank took a security interest in Grassi’s investment account containing the $725,900. In this transaction, Grassi transferred his remaining shares of stock to the corporation in exchange for a promissory note in the amount of $439,100.
For a few years, the lumber company managed to make all of the payments, but it was forced to close in 2004. Grassi liquidated his investment account securing the loan to First National Bank to repay that debt. Not only did Grassi lose over $260,000 to First National Bank, he could not collect the unpaid balance due on the promissory note from the business. Gras-si then filed suit against appellees, asserting negligence by Hyden in advising him to sell his shares of the company to the ESOP.
|aGrassi testified and presented the testimony of Hyden; Wyck Nisbet, a Little Rock attorney; David Rodgers, of Rodgers Financial Group, where Grassi invested the proceeds of the sale; Nenda Burch-field, who worked for the lumber company from 1976 until it closed and succeeded Grassi as president; Glenn Borkowski, an attorney; and Mary Jane Grassi, appellant’s wife. Hyden testified at length about ESOPs in general and how this ESOP was created. He stated that the first step is to see if the contributions based on a percentage of the payroll will be sufficient to service the debt. To that end, he asked a lawyer in his firm, Bor-kowski, to prepare a feasibility study in April 1998. Borkowski’s feasibility study included five possible scenarios. According to Hyden, he did not actually use the study “other than to see basically, are we in the ballpark.” He said that he did not “look to see if any of these particular scenarios were ‘workable’ ” and that he did not think that they were applicable or helpful to the actual ESOP that they established. Hyden stated that he later ran his own feasibility study in his head. He said that, although he reviewed Borkow-ski’s feasibility study “early on,” he did not review it thereafter: “I have previously said that none of these scenarios would work — none of the scenarios that Mr. Bor-kowski ran is applicable to what occurred with the Pierce-Grassi Lumber Company.” Hyden emphasized that the study had nothing to do with the business of the lumber company and said that he had not intended to give Grassi any business advice. He also said that they did not discuss the ability of the company to service all of the debt.
Wyck Nisbet testified about the general process of creating an ESOP, and stated that a feasibility study is a critical part of deciding whether to form one. He explained that there are 14 strict statutory and regulatory rules governing ESOPs and that the cost of starting and maintaining an ESOP is high because it requires a lot of legal time:
If you have an ESOP go bad, the problems are terrible. I never want to set up an Employee Stock Ownership Plan for a client when I think there is an unreasonable degree of possible failure — ability to meet the loan obligations. When you have an ESOP, you have employees that their retirement futures— the stock of the company is their retirement. You normally don’t want to take chances on an ESOP, or I do not. I have seen many attorneys who won’t even set up an ESOP. That is because of the high risk of things going wrong. They are high maintenance because most people do not understand all the technical rules that are associated with maintaining an Employee Stock Ownership Plan.
Nisbet did not testify that Hyden had fallen below the standard of care. He said: “If Mr. Hyden, in looking at all the information available to him, felt that the ESOP was going to be a successful arrangement and recommended it, he was doing what I would do.” He continued: “I don’t have any basis to believe that if Mr. Hyden had thought that the ESOP wouldn’t work, he would have gone ahead with it.” He also did not know if this ESOP adversely affected the lumber company’s profitability.
At the conclusion of Grassi’s case, appellees moved for directed verdict on the grounds that Grassi had not provided any expert testimony as to the standard of care; that Hyden fell below that standard; or that his alleged negligence caused any harm to Grassi. Grassi’s attorney argued that he had satisfied the burden of proof by introducing the testimony of Nisbet and Borkowski, and asserted that expert testimony was not necessary because this case fell within the “common-knowledge” exception. He contended that this case did not require any expert testimony to the effect that a lawyer has an obligation to disclose information to his client in | ¡¡making decisions. Counsel for appellees responded that no expert had testified that the feasibility study showed that this particular ESOP was not feasible or showed whether Hyden actually relied upon the feasibility study. She pointed out that none of Gras-si’s witnesses had linked the feasibility study to this particular ESOP or had testified that Hyden had fallen below the standard of care. She argued that whether such a study indicates if it is feasible to go forward with a particular ESOP is a very complex subject that is not within the common understanding of a jury.
The court granted the motion for directed verdict on the ground that, because this subject was not within the common knowledge of the jury, Grassi should have produced expert testimony. After the circuit court entered judgment on the directed verdict for appellees, Grassi brought this appeal.
In determining whether a directed verdict should have been granted, we review the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Scott v. Cent. Ark. Nursing Ctrs., Inc., 101 Ark.App. 424, 428, 278 S.W.3d 587, 590 (2008). A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Scott, 101 Ark.App. at 428, 278 S.W.3d at 590. Stated another way, a motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury’s verdict for the party to be set aside. Id. at 428, 278 S.W.3d at 590. Where the evidence is such that fairminded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Id. at 428, 278 S.W.3d at 590-91. | (¡Substantial evidence is evidence of sufficient force and character to induce the mind of the fact finder past speculation and conjecture. Id. at 428, 278 S.W.3d at 591.
Grassi argues on appeal that the trial court erred in directing the verdict in favor of appellees because the feasibility study demonstrated that the cash flow available to the ESOP was not sufficient to service the debt incurred by the ESOP, and that Hyden advised him to enter into the transaction without disclosing the adverse implications of the study. He contends that expert testimony was not neces sary at trial because this issue was within the common-knowledge exception to the rule requiring expert testimony in legal-malpractice cases.
An attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of a client. Barnes v. Everett, 351 Ark. 479, 485-86, 95 S.W.3d 740, 744 (2003). To prevail on a claim of attorney malpractice, a plaintiff must prove that the attorney’s conduct fell below the generally accepted standard of practice and that such conduct proximately caused the plaintiff damages. Barnes, 351 Ark. at 486, 95 S.W.3d at 744. To prove damages and proximate cause, the plaintiff must show that, but for the alleged negligence of the attorney, the result in the underlying action (in this case, the failure of the business) would have been different. Id. at 486, 95 S.W.3d at 744. In this respect, a plaintiff must prove a case within he must prove the merits of the underlying case as part of the proof of the malpractice case. An attorney is not liable to a client when, acting in good faith, he or she makes mere errors of judgment. Id. at 486, 95 S.W.3d at 744.
Our case law has consistently held that the attorney’s conduct must be measured against the generally accepted standard of practice. Barnes v. Everett, 351 Ark. 479, 486, 95 S.W.3d 740, 744 (2003). Such a measurement plainly requires expert testimony as to what the standard of practice is, unless the trial court determines that such testimony is not necessary because the case falls within the common-knowledge exception to the rule. Barnes, 351 Ark. at 486, 95 S.W.3d at 744; AMI Civ. 1510 (2009). Other courts have said that this exception applies when “the conduct claimed to be negligent is so clear it can be recognized or inferred by a person who is not an attorney.” Benton v. Nelsen, 502 N.W.2d 288, 290 (Iowa App.1993). In Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474, 480 (3d Cir.1979) (applying Pennsylvania law), the federal appellate court said that expert testimony would be required “except where the matter under investigation is so simple, and the lack of skill so obvious, as to be within the range of the ordinary experience and comprehension of even non-professional persons.”
We agree with the circuit court that the “common-knowledge” exception did not apply and that expert testimony was necessary in this case. Nisbet’s testimony alone was sufficient to show that expert testimony was needed. He testified about the many restrictions placed on ESOPs by the Internal Revenue Code and described them as “high maintenance.” Borkowski’s testimony about the intricacies of forming an ESOP also demonstrated the need for expert testimony. Additionally, Burchfield was ignorant about ESOPs before this one was created. She stated: “I did not know what an ESOP was until Mr. Hyden explained to everybody what an ESOP was.” She said that, when she went to the bank to apply for the loan, she brought Hyden |swith her so he could explain the transaction. Burchfield testified that Hyden met with her, Grassi, and others before the closing because they “wouldn’t have known what to do.” Grassi also explained that, before Hyden told him about the ESOP option, he knew nothing about ESOPs: “He gave me a magazine article and I tried to read it. I still didn’t understand anything about ESOPs.” Additionally, Grassi produced no evidence that the feasibility study predicted that the ESOP that was actually created fourteen months later might not work. Nothing in the evidence, therefore, established the standard of care or showed that Hyden breached it. The circuit court did not err in directing a verdict for appellees.
Affirmed.
KINARD and GRUBER, JJ., agree.
. The parties filed a motion to transfer this case to the Arkansas Supreme Court. The motion was denied on May 14, 2009.
. In medical-malpractice cases, the supreme court has indicated that a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it are examples of asserted negligence lying within the comprehension of the jury. Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996). | [
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ROBERT J. GLADWIN, Judge.
| Appellants Lloyd Lee and the Estate of Mark Medlock appeal the order entered by the Pulaski County Circuit Court on July 3, 2007, granting appellees’ motion for partial summary judgment and the subsequent order entered on May 7, 2009, granting appellees’ motion against all parties as to any and all remaining claims. On appeal, appellants argue that the circuit court erred by granting summary judgment because genuine issues of material fact exist. We affirm.
Facts
On or about September 5,1996, Bolán & Lee, PLC, entered into a purchase agreement with Bob Bolán, Inc., for the purchase of Robert M. Bolan’s accounting firm. The thirty-plus page agreement included various payment provisions for equipment, software, ^client files, and Bo-lan’s services, among other things. Paragraphs six and seven set out payment terms upon the sale of the business to a third party or upon a lump-sum payment to the seller, respectively, by appellants.
Paragraph eight of the purchase agreement set out a requirement that Lee and Medlock take out and maintain a life-insurance policy in their names to secure the purchase of the business, with Bolán listed as the sole beneficiary. The policy was required to have an initial value of $600,000 in the first year of the contract, with the value to decrease in value by $40,000 each year thereafter.
Medlock died on or about June 10, 2003. Sometime in July 2003, the company that issued the life insurance policy set forth in paragraph eight of the purchase agreement paid the policy proceeds, valued at that time at $440,000, to Bolán, personally. As of that date, paragraph seven’s lump-sum purchase provision provided for a total payment of $293,007.48 to Bolán as full satisfaction of the contract. Because of the discrepancy in the amounts due under paragraphs seven and eight, Lee and Med-lock’s estate sued Bolán for the $143,993 difference, alleging that they, personally, were entitled to certain proceeds from the insurance policy at issue. A myriad of pleadings followed, including the addition of various parties. Bolán died on February 16, 2006, and the circuit court subsequently substituted Brett Bolán in his ca pacity as executor of the estate of Bolán in place of Bolán.
On or about October 31, 2006, Bolán filed a motion for partial summary judgment, to which appellants responded on or about January 19, 2007. The response included an|3affidavit from Lee attempting to construe the purchase agreement. Ap-pellees filed a reply on January 31, 2007, stating that the affidavit should not be admitted as it was a violation of the parol-evidence rule. Also on October 31, 2006, Bolán filed a counterclaim for an accounting and damages.
Appellants filed another amended complaint on or about January 19, 2007, that added two new defendants, Susan K. Bo-lán, Bolan’s sister, and S.O. Bryant Company, LLC d/b/a Cool Timber Mobile Home Park and Legion Hut Mobile Home Park, a business Bolán owned with his sister. The second amended complaint alleged that these two new defendants were engaged with Bolán in the fraudulent conveyance of the insurance proceeds at issue in this case because, prior to his death, Bolán transferred the life-insurance proceeds to S.O. Bryant Company, LLC, despite the pending lawsuit over those funds.
Susan Bolán and S.O. Bryant Company, LLC filed a motion to dismiss on or about February 6, 2007, and Bolán filed an answer to the second amended complaint and a motion for partial summary judgment— claiming that the purchase agreement clearly and unambiguously provided for payment to him of the entire $440,000, on the same date. The circuit court held a hearing on the motion for partial summary judgment on or about June 14, 2007, and by letter dated June 15, 2007, the circuit court ruled in favor of appellees. On or about July 3, 2007, the circuit court entered an order granting appellees’ motion for partial summary judgment.
Appellants subsequently filed two separate notices of appeal, and docketed two separate |4appeals with this court: Lloyd Lee and Estate of Mark Medlock v. Robert Bolan, Susan Bolan, and S.O. Bryant Company, LLC, No. CA08-683; and Lloyd Lee and Estate of Mark Medlock v. Robert Bolan, Susan Bolan, and S.O. Bryant Company, LLC, No. CA08-684. The two appeals were later consolidated at appellants’ request. Also, at appellants’ request, the consolidated appeal was dismissed for lack of a final order and remanded for further proceedings on December 10, 2008.
On remand, the parties filed additional pleadings, and on or about May 7, 2009, the circuit court entered an order granting the remaining appellees’ motion for judgment as a matter of law against all parties as to any and all remaining claims. The order was granted without a hearing, as no hearing was requested. On or about June 4, 2009, appellants filed a notice of appeal naming Robert M. Bolán, Susan K. Bolán, and S.O. Bryant Company, LLC, as the party defendants. Although no notice of appeal was filed by Lee & Medlock, PLC, the successor in interest to Bolán & Lee, PLC, the original contracting purchaser, and Bob Bolán, Inc., was never named in any notice of appeal as a party against whom the appeal had been lodged, although that entity was the original seller, we hold that for purposes of this appeal, the proper parties are before the court. This appeal followed.
Standard of Review
The standard of review for summary-judgment cases is clear:
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Once a moving party has established a prima facie entitlement to summary judgment, the opposing „ party must meet proof with proof and ^[¿demonstrate the existence of a material issue of fact. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable minds might reach different conclusions from those undisputed facts. On appeal, we determine if summary judgment was appropriate based on whether the evi-dentiary items presented by the moving party in support of its motion leave a material question of fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party.
Jackson v. Sparks Reg’l Med. Ctr., 375 Ark. 533, 539, 294 S.W.3d 1, 4-5 (2009). Additionally, this court may not engage in a “sufficiency of the evidence” determination in summary judgment cases. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998).
Even when there is no material dispute as to the facts, summary judgment is not proper “where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might be drawn and reasonable minds might differ.” Thomas v. Sessions, 307 Ark. 203, 208, 818 S.W.2d 940, 943 (1991). The court must determine whether “reasonable minds” could draw “reasonable” inconsistent hypotheses to render summary judgment inappropriate. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). In other words, when the facts are not at. issue but possible inferences therefrom are, the court must consider whether the inferences can be reasonably drawn from the undisputed facts and whether reasonable minds might differ on those hypotheses. Id.
Discussion
Appellants’ argument, at its core, is that the inconsistency in the various payment terms of the purchase agreement creates a genuine issue of material fact to be litigated. MoreoverjJ^they urge that there is evidence that the parties had inconsistent inferences arising from the agreement sufficient to defeat summary judgment.
It is undisputed that various provisions of the purchase agreement provide for alternative payment structures and amounts for the sale of Bolan’s business to Lee and Medlock. Appellants assert that problems arose from the triggering of two or more of those provisions that occurred upon Medlock’s death. They allege that the provision in paragraph seven, providing that Lee and Medlock could purchase the business by paying a lump sum of $450,000, less any payments that had already been made pursuant to paragraph four of the purchase agreement, was triggered. At the time of Medlock’s death, Lee and Medlock had made significant payments pursuant to the terms of paragraph four, to the extent that the remaining lump-sum payment amount at that time would have been $293,007.48. Appellants submit that, under paragraph seven, their payment of that lump sum would have wholly satisfied the terms of the purchase agreement.
The second, and conflicting provision, is contained in paragraph eight of the purchase agreement, requiring Lee and Med-lock to purchase and maintain a life-insurance policy made payable to Bolán upon the death of either Lee or Medlock during the term of the purchase agreement. At the time of Medlock’s death, the policy amount was $440,000.
Appellants argue that a conflict arose because, upon Medlock’s death, the payment of the entire $440,000 more than satisfied the remaining debt under the purchase agreement as set forth in paragraph seven. Despite that fact, Bolán kept the total amount of the life-jinsurance7 policy proceeds, claiming he was due a windfall of $146,993, the difference between the total amount paid and the amount still owing under paragraph seven. Appellants argue that this is in direct conflict with the terms of paragraph seven. Appellants contend that these inconsistencies within the purchase agreement, when read as a whole, required the circuit court to deny the motion for partial summary judgment. We disagree.
Appellants acknowledge that the initial determination of the existence of an ambiguity rests with the court. Fryer v. Boyett, 64 Ark.App. 7, 978 S.W.2d 304 (1998); Wedin v. Wedin, 57 Ark.App. 203, 944 S.W.2d 847 (1997). When a contract is unambiguous, its construction is a question of law for the court. Rowland v. Faulkenbury, 47 Ark.App. 12, 883 S.W.2d 848 (1994); Moore v. Columbia Mut. Cas. Ins. Co., 36 Ark.App. 226, 821 S.W.2d 59 (1991). A contract is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. See Fryer, supra; Singh v. Riley’s, Inc., 46 Ark.App. 223, 878 S.W.2d 422 (1994).
In determining whether a contract’s terms are ambiguous or susceptible to more than one equally reasonable construction, the court must harmonize different clauses of a contract, and should not give effect to one to the exclusion of another even though they seem conflicting or contradictory, nor adopt an interpretation that neutralizes a provision if the various clauses can be reconciled. See Byme, Inc. v. Ivy, 367 Ark. 451, 241 S.W.3d 229 (2006). The object is to ascertain the intention of the parties, not from particular words or phrases, but from the entire context of the agreement. See Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). The courts cannot make a contract for the parties, but can only construe and enforce the contract that they have made. Alltel Corp. v. Sumner, 360 Ark. 573, 203 S.W.3d 77 (2005).
The circuit court found, and we agree, that there are no ambiguities in the purchase agreement, as a matter of law. In Alexander v. McEwen, 367 Ark. 241, 239 S.W.3d 519 (2006), our supreme court stated that
[t]he first rule of interpretation of a contract is to give to the language employed the meaning that the parties intended. In construing any contract, we must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the parties themselves viewed it. It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement.
Id. at 244, 239 S.W.3d at 522 (internal citations omitted). The circuit court followed this procedure in the instant case. There was a dispute as to the meaning of a contract term, and the circuit court initially performed the role of gatekeeper, determining first whether the dispute may be resolved by looking solely to the contract or whether the parties relied on disputed extrinsic evidence to support their pro posed interpretation. See Multi-Craft Contractors Inc. v. Perico Ltd., 96 Ark.App. 138, 239 S.W.3d 33 (2006). The construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence. Id.
When contracting, parties express their intention in a written instrument in clear and 19unambiguous language. It is the court’s duty to construe the written agreement according to the plain meaning of the language employed. Pittman v. Pittman, 84 Ark.App. 293, 139 S.W.3d 134 (2003). Different clauses in a contract must be read together and construed so that all of its parts harmonize, if that is at all possible, and it is error to give effect to one clause over another on the same subject if the two clauses are reconcilable. See Multi-Craft, supra. Because the purchase agreement is not ambiguous as a matter of law, there is no genuine issue of material fact concerning payment of the insurance proceeds, the dollar amounts at issue, or a question of any “windfall” to Bolán.
Although the purchase agreement must be read as a whole, we set out the disputed paragraph eight in its entirety:
Bolán and Lee, PLC will acquire and keep in force for a period of ten (10) years from the date of this agreement a life insurance policy in the original amount of Six Hundred Thousand Dollars ($600,000.00) insuring the lives of Lloyd F. Lee and Mark C. Medlock. The amount of life insurance in force shall decrease Forty Thousand Dollars ($40,-000.00) on each anniversary date of this agreement. Robert M. Bolán, or his estate, shall be the named beneficiary of the policy. In the event that either Lee or Medlock die and the proceeds of the policy are paid to Bolán or his estate, all sums owed by Bolán and Lee, PLC, are canceled.
Pursuant to paragraph eight of the purchase agreement, and upon the death of Medlock on June 10, 2003, the insurance company paid all policy proceeds to Robert Bolán, in accordance with his designation as the sole beneficiary of the insurance policy. On the face of the purchase agreement, and, indeed, on the face of the insurance policy, there simply is no ambiguity: Robert M. Bolán, alone, was entitled to all of the proceeds of the insurance policy.
| T (Although appellants contend that paragraph eight conflicts with paragraph seven, which provides for a lump-sum payment if made by appellants, we hold that the provisions do not “contradict” each other, but rather set out two alternative forms of satisfaction of the obligations under the purchase agreement. In this instance, it was the provision in paragraph eight that was triggered upon Medlock’s death.
The circuit court referred in its opinion letter of June 15, 2007, to another applicable paragraph of a separate provision of the purchase agreement, the “Insurance Maintenance Agreement.” That provision, in the relevant part of paragraph two thereof, requires Bolán and Lee PLC, to obtain a life insurance policy “for the purpose of insuring that Robert M. Bolán and Bob Bolán, Inc.’s interests as set forth in the master agreement ... are protected in the event of the death of ... Mark C. Medlock. Said policy will be payable upon the death of ... Mark C. Medlock and shall be payable to Robert M. Bolán.” That same paragraph further provided for cancellation of the insurance policy if Bo-lán and Lee, PLC, paid all sums due under the master agreement. Lee and Medlock both signed this insurance maintenance agreement as well as the master purchase agreement.
We agree that there were three different “prices” that might have satisfied the obligations owed to Bob Bolán, Inc., as the seller, pursuant to the provisions of paragraphs six, seven, and eight of the purchase agreement. All of the individuals involved in the transaction were accountants and understood the ramifications of the various provisions, the loss or gain of interest on unpaid balances, reduction of various amounts to present value, and 1 ltthe tax consequences that would result. The purchase agreement, when read as a whole, provides that the total purchase price paid could vary substantially, depending on the timing of the “payment” and the circumstances under which it was made.
Paragraph eight is not another provision for the “lump sum” payment of certain parts of the purchase agreement, and it does not conflict with the “lump sum” payment provision set forth in paragraph seven. We hold that Medlock’s death did not trigger paragraph seven at all, and based upon our review of the record, neither Lee, the estate of Medlock, Bolán and Lee, PLC, nor Lee & Medlock, PLC, ever claimed that any of them made a “lump sum” payment of their moneys to Bob Bolán, Inc., or that they separately paid the equipment and receivables note also provided in paragraph seven. It is undisputed that the insurance proceeds were paid to Robert M. Bolán, personally, directly from the insurance company, and not from any of the above-named individuals or entities. Additionally, no funds were paid to Bob Bolán, Inc., as a result of Medlock’s death. Appellants could have maintained their own separate life insurance agreements, or they could have provided in the agreements that they would be secondary, contingent, or co-beneficiaries on the insurance policies that they themselves took out on their own lives. See Pittman, supra. However, they failed to do so.
Additionally, we note that appellants’ interpretation of paragraph seven would have this court ignore two separate clauses in paragraph seven, (1) the “client list, client file” payments described were limited to the amounts of paragraph four, and (2) the “equipment and receivables note” language, which is a reference to paragraph two and the separate | ^promissory note contained in that provision. We also cannot ignore the limitation of the phrase “[a]s an inducement to pay in a lump sum an amount to satisfy the amounts owed for the client list, client files, client records, etc., which are the subject of paragraph 4 of this agreement ...” also set forth in paragraph seven. The same phrase is not included in paragraph eight; accordingly, paragraph eight is not thereby limited in payment amounts. We construe the purchase agreement in such a way as to give effect to each phrase and clause in paragraph seven of the purchase agreement, as well as paragraph two of the insurance maintenance agreement, just as the circuit court did in its letter ruling as follows:
After having reviewed the two referenced documents executed by the parties, I am of the opinion there is no ambiguity in the contract. The Agreement for Sale specifically sets out various methods, formulas and details of the payments to be made by the buyers and sellers. These provisions are very clear and easily capable of understanding. The provision for the payment of the insurance proceeds is also unambiguous and clear in its meaning.
Finally, we note that paragraph fourteen of the purchase agreement has an integration clause, which precludes the use of parol evidence in the determination of the meaning of the purchase agree ment. The circuit court specifically found that
[t]he intent of the parties is not relevant as the contract plainly speaks for itself. The parties could have easily provided for a net payment or balance owed payment in the event of death, but did not do so. The parties did not contract otherwise. To have the court now make a new contractual provision, which could easily have been inserted at the time of contracting, is improper. I cannot and will not make a new contract for the parties.
We hold that the circuit court’s analysis was correct on this issue. The affidavit of Lloyd Lee is not to be considered, as parol evidence is admissible only if an ambiguity exists. See Singh, supra. In the absence of fraud, accident, or mistake, a written contract merges, and thereby extinguishes, all prior and contemporaneous negotiations, understandings, and verbal agreements on the same subject. Ultracuts Ltd. v. Wal-Mart Stores, Inc., 843 Ark. 224, 33 S.W.3d 128 (2000). But even then, parol evidence may not be admitted to alter, vary, or contradict the written contract. Id.
We hold that there were no genuine issues of material fact to be litigated, as the purchase agreement was unambiguous as a matter of law, and that appellee was entitled to judgment as a matter of law. Accordingly, we affirm.
Affirmed.
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DONALD L. CORBIN, Justice.
I, Appellant City of Rockport appeals the order of the Hot Spring County Circuit Court finding substantial compliance with certain annexation requirements set forth in ArkCode Ann. § 14-40-2002 (Supp. 2009). On appeal, Rockport argues that the circuit court erred in concluding that sewer services were provided, accepted, and in place or that the parties took substantial steps to cause the requested sewer services to be provided, accepted, and in place in accordance with the statutory requirements. Additionally, Rockport argues that the circuit court erred in failing to recuse where there was an appearance of impropriety. We find no error and affirm.
Aaron Wright and Leann Wright-Welch (“landowners”) own real property that was located within the incorporated limits of the city of Rockport prior to 2001. They sought |2to detach from Rockport and be annexed into the city of Malvern on or about May 11, 2001, pursuant to section 14-40-2002, the statutory provision governing detachment and annexation. As part of the statutory process, the landowners requested Malvern to provide city services, such as sewer, fire protection, street-sweeper service, police protection, animal control, and services from the municipal water department. Malvern adopted Resolution No. 09-01 accepting the Wright-Welch property and committing to make the requested services available. Thereafter, Rockport filed suit in circuit court seeking to have the annexation set aside. The circuit court upheld the annexation, and this court affirmed that decision. See City of Rockport v. City of Malvern, 356 Ark. 393, 155 S.W.3d 9 (2004) (Rockport I).
On August 28, 2008, Rockport filed a complaint for declaratory judgment, averring that the deadline, pursuant to section 14 — 40—2002(b)(2)(B)(iii), for Malvern to provide the requested services expired on or about March 11, 2005, twelve months from the date this court affirmed the annexation in Rockport I. In its complaint, Rockport asserted that Malvern failed to provide, or take substantial steps to provide, the requested services, particularly sewer service, to the Wright-Welch property. Thus, according to Rockport, Mal-vern’s failure to comply with the statutory-time provision required a finding that the annexation was void as of March 11, 2005. Further, Rockport sought a court order requiring Malvern to remit to it the full amount of all sales-tax collections and other revenues collected by Malvern since March 11, 2005, that would have otherwise been collected by Rockport had the annexation never occurred. Malvern filed an answer denying the claims asserted by Rockport and also | .¡asserting several affirmative defenses, including res judicata or collateral estoppel, statute of limitations, acquiescence and laches, waiver, and unjust enrichment.
Prior to trial, Rockport also filed a motion requesting the circuit court judge to recuse. In seeking recusal, Rockport asserted that the judge had served as city attorney for Malvern for a number of years and had also represented private clients against Rockport in similar annexation issues. Thus, according to Rockport, there existed an appearance of impropriety. Following a hearing on the motion, the circuit court entered an order denying the motion to recuse.
A bench trial was subsequently held on August 21, 2009. Carl Wheatley, an employee with Malvern Water Works, testified that there was not a sewer main on the Wright-Welch property but that there was one within twenty yards of that property. Wheatley also testified that between March 11, 2004, and March 11, 2005, there had been no work done to connect that main sewer to the property. On cross-examination, Wheatley explained that there was no other work that the city needed to do to have the sewer line in place for the landowners and that the next step to get the property connected to the sewer line was with the landowners.
Steven Northcutt, mayor of Malvern, also testified. He testified that when a landowner annexes into the city, the city provides the requested services. According to Northcutt, there are requirements for landowners who want sewer service once they are annexed into the city. He explained that in this case, the landowners have taken steps to tie |4onto the sewer line, including going to the planning commission and meeting with a code enforcement officer.
Len Dawson, the code enforcement officer for the city of Malvern, testified that Leann Wright-Welch approached him in 2005 and asked for information about building apartments in Malvern. She brought plans for developing the property at issue here, and the two discussed water and sewer, fire protection, setbacks, streets, roads, cul-de-sacs, and building layout. Dawson also stated that he and Wright-Welch talked about sewer service and that he advised her to use a four-inch gravity-flow drain pipe to service most, if not all, of the apartments. Finally, he stated that the city of Malvern had no additional steps to take to provide sewer service because it was up to the landowners to request a connection.
Wright-Welch testified that she sought to have her property annexed into Malvern because the services she needed were not available in Rockport. She explained that she had architectural plans dating back to 2002 and that she is continuing to develop her plan for that property. She stated that she has discussed connecting to the sewer line with Malvern city employees. According to Wright-Welch, once it is determined what kind of line is needed, where it has to be placed, and all engineering specifics are completed, she will re quest and pay for a connection to the sewer line. She stated that she has taken the appropriate steps to make the sewer line accessible between her property and the city’s manhole. Wright-Welch testified that she exchanged easements with the owner of an adjoining property, thus, allowing her to access the sewer line or any other needed utility. This easement was executed in ^February 2004. Wright-Welch also testified that she has spent nearly $50,000 to hire architects, engineers, soil-sample people, and others in developing the property.
Following the bench trial, the circuit court entered an order on September 25, 2009, making the following findings:
6. The Court finds that Malvern has sewer service to the property provided and in place by having a functioning sewer main within 60 feet of the property line. The landowner has not requested nor paid the connection fee for the service. The landowner has significant input on the type of sewer service needed to best develop the property. Mal-vern may not dictate the type of sewer service the landowner receives nor compel the landowner to pay the expense of connecting a sewer line that is not suited to the requirements of the development.
7. The Court finds that all necessary services required by statute are provided and in place. The Court finds that Malvern has accepted the property and committed to provide the services. The landowner has accepted services from Malvern. Malvern has substantially complied with the statute and is able to connect sewer immediately upon request of the landowner.
Thus, the circuit court denied Rockport’s request for a declaration that the annexation was void. This appeal followed.
As its first point on appeal, Rockport argues that the circuit court erred in finding that sewer services were “provided, accepted, and in place” where it was undisputed that the sewer system did not reach the landowners’ property and the landowners have not requested a connection or paid a connection fee. Similarly, Rockport asserts that the circuit court erred in finding that there has been substantial compliance with the requirements of section 14-40 — 2002(b)(2)(B)(iii). Malvern argues to the contrary that Rockport’s proposed reading of the | ^statute is incorrect and that the evidence established that there had been substantial compliance with the statute.
The standard of review on appeal from a bench trial is not whether there is substantial evidence to support the findings of the circuit court, but whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. See, e.g., El Paso Prod. Co. v. Blanchard, 371 Ark. 634, 269 S.W.3d 362 (2007). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed. Id. Facts in dispute and determinations of credibility are solely within the province of the fact-finder. Id.
Further, we review issues of statutory construction de novo, as it is for this court to determine what a statute means. Johnson v. Dawson, 2010 Ark. 308, 365 S.W.3d 913. In this respect, we are not bound by the circuit court’s decision; however, in the absence of a showing that the circuit court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Id.
In 1999, Act 779 of 1999, now codified at Ark.Code Ann. §§ 14-40-2001 to -2002 (Supp.2009) (the “Detachment-Annexation Statutes”), was enacted to provide the pro cedure for the annexation of land into an adjoining municipality in order to obtain municipal services. Specifically, section 14-40-2002 provides the criteria that allows. a landowner to seek to detach from one municipality and be annexed by another. This section further sets forth requirements dictating when and what actions must occur for the other municipality to annex 17certain land and states the procedure for what happens if the statutory requirements are not satisfied. It provides in relevant part as follows:
However, if the requested services are not provided, accepted, and in place within twelve (12) months after the property is accepted by the annexing jurisdiction or substantial steps are not taken to provide, accept, and have the services in place within this time period, then the detachment and annexation shall be void and all property returned to its original jurisdiction.
Ark.Code Ann. § 14-40-2002(b)(3)(B)(iii).
■ In the instant case, it is undisputed that Malvern has provided a sewer line that is approximately twenty yards from the Wright-Welch property. City officials from Malvern testified that the city had taken all necessary steps to provide sewer service. The evidence also demonstrated that while sewer service was not operational, there were substantial steps taken to accept and have those services in place. As previously set forth, the landowners obtained a utility easement, which is necessary for them to access and eventually connect to the sewer line. There was testimony from Wright-Welch regarding the expenditure of substantial funds to architects and engineers to assist in the development of the property, including a determination of what type of sewer connection will be required. In addition, city officials testified that the landowners were engaged in continuous efforts to develop the property.
There is simply no merit to Rockport’s argument that Malvern has not complied with its requirement to provide sewer service because there is no sewer line on the property. Nothing in the statute requires the sewer line to be physically on the property. The statute requires that it be provided, and the evidence presented was that it was common practice for |sMalvern to provide a sewer line that the landowners could then connect to. Likewise, the statute makes no requirement that the requested service be in use; rather, it must be accepted. Here, there is evidence that the landowners have substantially complied with the requirement that they accept the service, including testimony that the landowners obtained a utility easement to access the sewer line. Moreover, there was evidence that the landowners had met with code enforcement officers and hired architects and engineers to aid in developing the property, including a determination of what type and where to place a connection to the sewer line. As to “in place,” Rockport would have that phrase equate to the services being “in use,” which conflicts with a plain reading of the provision.
Even if we were to conclude that there was some ambiguity within this provision, we still cannot say the circuit court erred in finding substantial compliance. Where a statute is ambiguous, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. City of Maumelle v. Jeffrey Sand Co., 353 Ark. 686, 120 S.W.3d 55 (2003). We may also look to the emergency clause to determine legislative intent, id. The purpose section of the Detachment-Annexation Statutes provides as follows:
It is the purpose of this subchapter to assist landowners to obtain municipal services by making the services reasonably available. However, nothing in this subchapter shall relieve a landowner from the obligation to pay regular fees and costs for connecting to services or from the obligation to pay the regular cost of the services.
Ark.Code Ann. § 14-40-2001. As we recognized in Jeffrey Sand,
|4t]he purpose and objective of the statute is to provide a mechanism by which a landowner may obtain services. The emergency clause of Act 779 of 1999 identified aggrieved landowners as those currently being “inadequately served by the municipality in which [the lands are] located where the needed services exist in a bordering municipality.” 1999 Ark. Acts 779, § 6 (emergency clause) (emphasis added). This language indicates that the remedy the legislature sought to provide was to give the landowner a means of obtaining services to the property.
Id. at 694, 120 S.W.3d at 59.
In the prior appeal where Rockport challenged the initial annexation, this court noted that “it is completely reasonable to conclude that sewer service is necessary to ‘maximize the use and value of [one’s] property.’” Rockport I, 356 Ark. at 401, 155 S.W.3d at 15 (quoting Ark.Code Ann. § 14-40-2002(b)(1)(A) (Supp.2003)). The evidence presented here indicated that Rockport was still not able to provide sewer service to the property at issue. And, while the services Rockport is able to provide is not a determining factor in whether there has been substantial compliance in providing, accepting, and having services in place, it does impact our analysis from the standpoint that a rigid interpretation of section 14-40-2002(b)(3)(B)(iii), such as the one advanced by Rockport in this case, would defeat the legislative intent of this statutory scheme. In other words, accepting Rockport’s stringent analysis and voiding the annexation, in light of all the evidence that the landowners are attempting to develop their property and need Mal-vern’s city’s services to do so, would defeat the statutory purpose of section 14-40-2002 and would also lead to an absurd result. It is axiomatic that this court will not interpret a statute in a manner that defeats its legislative 110purpose, nor will we interpret a statute to lead to an absurd result. Jeffrey Sand, 353 Ark. 686, 120 S.W.3d 55.
In sum, considering the evidence presented and being mindful of our standard of review, we cannot say that the circuit court erred in finding that there has been substantial compliance with the requirements of section 14 — 40—2002(b)(2)(B)(iii) that the sewer service be provided, accepted, and in place within twelve months.
As its final point on appeal, Rock-port asserts that the circuit court erred in failing to recuse where the judge had served as city attorney for Malvern and had also represented parties adverse to Rockport in previous litigation. This prior representation, according to Rockport, goes beyond the possible appearance of impropriety. Rockport further asserts that it met its burden of demonstrating bias and the appearance of impropriety. Malvern counters -that the circuit court did not abuse its discretion in denying the motion to recuse where Rockport made no allegation of actual bias or prejudice.
In support of its recusal argument, Rockport relies, in part, on the Code of Judicial Conduct. Rule 1.2 states as follows:
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
In Ark. Code Jud. Conduct R. 1.2 (2010). Rule 2.11 governs the issue of judicial disqualification and lists, among the bases for disqualification, instances where the judge served as a lawyer in the matter in controversy or served in governmental employment, and in such capacity, participated personally as a lawyer concerning the proceeding. Ark. Code Jud. Conduct R. 2.11 (2010). Rockport goes beyond asserting an appearance of impropriety and argues that the impartiality of the circuit judge might reasonably be questioned.
The rule is long established that there is a presumption of impartiality on the part of judges. Searcy v. Davenport, 352 Ark. 307, 100 S.W.3d 711 (2003); City of Dover v. City of Russellville, 346 Ark. 279, 57 S.W.3d 171 (2001). A judge’s decision to recuse is within the circuit court’s discretion and will not be reversed absent an abuse of that discretion. Searcy, 352 Ark. 307, 100 S.W.3d 711. The party seeking recusal must demonstrate bias. Bradford v. State, 328 Ark. 701, 947 S.W.2d 1 (1997). Further, this court has noted that, unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for implied bias, and the mere fact that a judge has ruled against a party is not sufficient to demonstrate bias. See Searcy, 352 Ark. 307, 100 S.W.3d 711.
Even if we were to ignore our longstanding rule that bias must be demonstrated, see, e.g., Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999), we cannot agree with Rockport’s assertion that the circuit court erred in denying the motion to re-cuse. Even though the circuit judge served as city attorney for Malvern before taking the bench, he did not represent Malvern in the instant, or a prior, annexation suit. While the judge did represent private |12Iandowners in a similar annexation suit against Rockport before taking the bench, that prior litigation concerned the issue of whether Malvern’s initial annexation was valid. The circuit judge did not represent the current landowners nor did he represent other landowners in the instant suit regarding whether Malvern had complied with the statutory requirements imposed after an annexation occurs. Thus, where there was no allegation of actual bias, nor any demonstration by Rockport of prejudice, we cannot say that the circuit court abused its discretion in denying the motion to recuse.
Affirmed.
BROWN, J., concurs.
. Although named as defendants in Rock-port's complaint for declaratory judgment, neither Wright nor Wright-Welch have filed a brief or otherwise taken any action in the instant appeal.
. Although Rockport’s motion to recuse, and now its argument on appeal, refers to Canons 2(A) and 3(E)(1), new canons were adopted by this court and became effective, July 1, 2009. See In re Ark. Bar Ass’n Petition to Amend Code of Jud. Conduct, 2009 Ark. 238 (per curiam). Because Rockport Hied its motion to recuse on July 30, 2009, the amended version of the Code of Judicial Conduct governs. As such, the provision formerly codified in Canon 2 is now found within Rule 1.2, and the provision formerly codified within Canon 3(E)(1) is now found within Rule 2.11. | [
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LARRY D. VAUGHT, Chief Judge.
| Appellant Hughes School District (District) appeals the decision of the Arkansas Workers’ Compensation Commission finding that appellee Peggy Bain was entitled to temporary-total-disability benefits from September 10, 2002, to May 11, 2006. The District contends that there is a lack of substantial evidence supporting the decision. Bain cross-appeals, arguing that the Commission’s decision that she failed to prove that she was permanently and totally disabled was not supported by substantial evidence. We affirm the direct appeal and the cross-appeal.
In March 2001, Bain was employed as a teacher at Hughes High School. She was the head of the science department and taught biology, advanced biology, human anatomy and physiology, physical science, and earth science. Due to significant right-knee and low-back injuries, and surgeries for both, Bain used crutches to ambulate at school.
|2On March 16, 2001, Bain sustained an admittedly compensable injury when she attempted to break up a physical altercation between students. As a result of the incident, Bain had surgeries on her right knee (April 17, 2001) and low back (May 2002), which became the subject of a hearing before an administrative law judge (ALJ) on October 1, 2004. Thereafter, the ALJ issued an opinion finding, among other things, that Bain failed to prove that she suffered a compensable injury to her right knee; that she proved that she suffered a compensable injury to her low back; that she was entitled to temporary-total-disability benefits from March 17, 2001, to at least September 9, 2002 (which was the latest medical evidence submitted by either party at that time ); and that she was entitled to continued medical treatment for her compensable injury. This opinion was affirmed and adopted by the Commission on September 1, 2005, which the parties in the instant case stipulated was the law of the case.
The District paid Bain benefits per the Commission’s opinion; however, the District controverted medical and temporary-total-disability benefits after September 9, 2002. The record reflects that Bain did not receive the medical treatment recommended by Dr. Bridwell in September 2002, and that Bain did not receive any medical treatment for her compensable injury until May 11, 2006, when she was seen by Dr. Reza Shahim as part of an independent medical evaluation requested by the District. In his report, Dr. Shahim concluded that Bain had not reached maximum medical improvement. Based on this opinion, the parties stipulated that Bain reached the end of her healing period on May 11, 2006. Dr. Shahim also recom mended ^additional medical treatment, including an MRI, x-rays, and a referral for a pain pump. He issued Bain a ten-percent impairment rating, which was accepted and paid by the District. Appellee Second Injury Fund (Fund), which all parties agreed was responsible for the payment of permanent benefits beyond the payment of the impairment rating, accepted a thirty-percent wage-loss disability. However, Bain contended that she was entitled to additional TTD benefits from September 10, 2002, to May 11, 2006, and permanent-total-disability benefits. The District controverted the request for TTD benefits, and the Fund controverted permanent-total-disability benefits.
At the hearing, Bain testified that since September 9, 2002, she had been in constant pain and had no quality of life. She described complications that she had as a result of the low-back surgery, including a hernia in her abdomen and bladder incontinence. She testified that she took multiple prescription medications for pain, which caused double vision, an inability to concentrate, and drowsiness. She was not able to sleep for eight hours continuously, she was not able to stand or sit for extended periods of time, and she used a walker to walk long distances.
Bain also stated that she had not returned to work since the date of the incident. She said that she neither returned to the District seeking work nor sought work elsewhere. She stated that she was not interested in vocational rehabilitation. The only job she wanted to return to was teaching, and it was her belief that she was unable to perform that job. She stated that she drew retirement-disability and social-security-disability benefits. The ALJ, in his opinion, found that Bain was entitled to TTD from September 10, 2002, to May 11, 2006, and that she was permanently and totally disabled. The Commission affirmed the TTD award, but reversed the 14permanent-total-disability award, finding that Bain was instead entitled to a thirty-percent wage-loss disability. From this decision, both the District and Bain have appealed.
The standard of review concerning the sufficiency of the evidence in workers’ compensation cases is as follows:
On review, this court will affirm if the Commission’s decision is supported by substantial evidence. To determine if the decision is supported by substantial evidence, this Court views the evidence in the light most favorable to the Commission’s findings and affirms if reasonable minds could have reached the same conclusion. Where a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires the reviewing court to affirm the Commission if its opinion displays a substantial basis for the denial of relief. The injured party bears the burden of proof in establishing entitlement to benefits under the Workers’ Compensation Act and must sustain that burden by a preponderance of the evidence. The provisions of the Workers’ Compensation Act were formerly construed liberally. However, Act 796 changed the former practice and mandated that the Commission and the courts construe the provisions strictly.
Dearman v. Deltic Timber Corp., 2010 Ark.App. 87, 377 S.W.3d 301, 2010 WL 306993. On direct appeal, the District argues that substantial evidence does not exist to support the Commission’s decision that Bain proved that she was entitled to additional TTD benefits.
When an injured employee is totally incapacitated from earning wages and remains in her healing period, she is enti- tied to temporary-total disability. Luten v. Xpress Boats & Backtrack Trailers, 103 Ark.App. 24, 30, 285 S.W.3d 710, 714 (2008). The healing period ends when the employee is as far restored as the permanent nature of her injury will permit; if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Id., 285 S.W.3d at 714. Conversely, the healing period has not ended so long as treatment is administered for the healing and alleviation 1 sof the condition. Id., 285 S.W.3d at 714. The determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Id., 285 S.W.3d at 714.
The District argues that while Bain was within her healing period from September 2002 to May 2006, she was not totally incapacitated from working. The District points to evidence that Bain made no effort to return to work and that there is nothing in the record to support her contention that she was unable to work during that time. The District cites the testimony of Bain that she was not aware of any medical records stating that she was unable to work, and the District notes that Dr. Bridwell in September 2002, did not take Bain off work or issue any restrictions. Finally, the District relies upon the surveillance video, which illustrated that Bain was very capable of functioning, despite her testimony to the contrary.
We hold that the Commission provided substantial evidence to support its decision to award the additional TTD. The Commission found that Bain suffered a compensa-ble injury to her low back on March 16, 2001; that she was diagnosed with a lumbar strain; that she suffered an approximate forty-percent anterior subluxation of L5 on SI; that she had surgery on her lumbar spine on May 9, 2002; and that Dr. Bridwell examined her on September 9, 2002 (just four months after the back surgery) and recommended additional medical treatment, some of which were not performed. The Commission also cited the testimony of Bain that she could not work during this time frame. It further relied upon Dr. Shahim’s report that Bain had not reached maximum medical improvement as of May 11, 2006, and that she was entitled to a tenjpercenh impairment rating. Finally, the Commission relied upon the parties’ stipulation that Bain’s healing period ended May 11, 2006.
While there is no medical record stating that Bain cannot work during this period— and it is her burden to prove this element — we also note that there is no medical record stating that she can work. The lack of medical evidence on this issue is due to the District’s decision to controvert Bain’s medical treatment after the September 2002 visit with Dr. Bridwell. The District should not be permitted to argue that there is a lack of medical evidence to support Bain’s claim when it was the District that cut off that medical treatment. See Luten, 103 Ark.App. at 30, 285 S.W.3d at 715 (holding that where employer refused medical treatment, it cannot later rely on that refusal to assert that the employee did not receive treatment to heal and alleviate his condition). We also note that the surveillance video was taken in April and May 2008, which is outside the relevant time frame of this issue. Accordingly, we affirm on direct appeal.
Bain argues on cross-appeal that there is a lack of substantial evidence supporting the Commission’s decision that she is not permanently and totally dis- abled. The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Henson v. Gen. Elec., 99 Ark.App. 129, 134, 257 S.W.3d 908, 912 (2007). The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant’s age, education, and work experience. Id., 257 S.W.3d at 912. Objective and measurable physical or mental findings, which are necessary to support a determination of “physical impairment” or anatomical disability, are not necessary to support a determination of wage-loss disability. Id., 257 S.W.3d at 912. To be 17entitled to any wage-loss-disability benefit in excess of permanent-physical impairment, a claimant must first prove, by a preponderance of the evidence, that he or she sustained permanent-physical impairment as a result of a compensable injury. Id., 257 S.W.3d at 912. Other matters to be considered are motivation, post-injury income, credibility, demeanor, and a multitude of other factors. Id., 257 S.W.3d at 912-13. The Commission may use its own superior knowledge of industrial demands, limitations, and requirements in conjunction with the evidence to determine wage-loss disability. Id., 257 S.W.3d at 913.
The Commission found that Bain failed to prove that she was permanently and totally disabled but awarded her a thirty-percent wage-loss disability. In so finding, the Commission acknowledged that Bain was fifty-eight years old, holds an undergraduate degree in education, and primarily worked as a teacher. The Commission found that she suffered a compensable back injury, had surgery, and was issued a ten-percent impairment rating for that injury. The Commission noted that no physician stated that Bain was physically or mentally unable to return to work as a teacher. The Commission specifically found that Bain’s testimony that she was currently incapacitated was incredible. Instead, relying upon the surveillance video, the Commission found that she was not physically incapacitated and that she was unmotivated to return to work. We hold that this is substantial evidence supporting the Commission’s decision denying Bain permanent and total-disability benefits and affirm on cross-appeal.
IsAffirmed on direct appeal; affirmed on cross-appeal.
KINARD and GRUBER, JJ., agree.
. On September 9, 2002, Dr. Keith Bridwell recommended a pelvis x-ray, a bone-scan study, a sed rate and CRP study, and an MRI.
. The parties stipulated that Bain’s healing pertad ended May 11, 2006.
. The surveillance video demonstrated that Bain was able to water her lawn and shrubs by pulling a hose across it and that she was able to spend more than forty-five minutes cleaning out her minivan, which required her' to stand, walk, step up and down, bend, lift, and reach. | [
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DAVID M. GLOVER, Judge.
LThe principal issue in this case is whether the tax sale of a severed mineral interest, not subjoined to the surface assessment, is valid. The circuit court found that the mineral interest had been assessed and forfeited improperly and quieted title in the appellees. We are thus confronted with the same situation in which we found ourselves when we decided Blackburn v. Cline, 8 Ark.App. 108, 650 S.W.2d 588 (1983). As in Blackburn, we affirm the circuit court.
Facts
Appellants Selrahc Limited Partnership and Katina Peevyhouse trace their claim to a November 1973 tax deed. The property was sold for 1970 taxes. One group of appellees, referred to as the “Morgan defendants” or “Morgan heirs,” claim some of the mineral interests | ?as the heirs of Quincy A. Morgan and Mabel May Morgan. The Morgan claim dates from 1928. Appellee Dana Mansfield, one of the grandchildren of Wilbur J. Mansfield, claims another part of the mineral interests. Appellee Seeco, Inc., is a producer who leases the mineral interests from the other appellees.
Appellants filed suit seeking to quiet title to the mineral interest in themselves. The petition asserted that appellants, or their predecessors in title, had paid all property taxes on the mineral interests since 1979, and that the Van Burén County Assessor had maintained the assessment records on the mineral interests by indexing them according to section, township, and range, making the mineral interests identifiable by tract. Appellants additionally sought to have Arkansas Code Annotated section 26-26-1112 (Repl.1997), purporting to eliminate the subjoinder requirement, given retroactive application. Appellees filed separate answers to the petition in which they denied the material allegations. The Morgan heirs and the Mansfield heirs both filed counterclaims seeking to quiet title to their respective mineral interests in themselves.
Appellees also filed a motion for summary judgment, which asserted that appellants’ tax title was void as a matter of law. In their brief in support of the motion, the Morgan heirs asserted that the Van Burén County Assessor did not maintain the mineral-assessment records immediately following the same tract’s surface assessment, and submitted an affidavit from Trina Jones, the current Van Burén County Assessor, to that effect. In response, appellants |ssubmitted Jones’s deposition in which she stated that her affidavit was not entirely accurate. Jones testified that both the surface interests and the mineral interests are indexed in a single volume by section, township, and range. However, she indicated that the surface assessments are in one section of the book, while the mineral assessments are in a different section. As far as Jones knew, the mineral assessments had never been subjoined to their respective surface assessments.
The circuit court entered an order granting summary judgment to appellees. The court relied on the Sorkin v. Myers, 216 Ark. 908, 227 S.W.2d 958 (1950), line of cases and noted that this was a rule of property that the circuit court was without power to change. The court rejected appellants’ invitation to apply Arkansas Code Annotated section 26-26-1112 retroactively, noting that the deeds at issue predated the enactment of the statute. The court later entered a final judgment pursuant to Arkansas Rule of Civil Procedure 54(b). This appeal timely followed.
Standard of Review
Normally, we determine if summary judgment is proper based on whether evidentiary items presented by the moving party leave a material fact unanswered, viewing all evidence in favor of the nonmoving party. Hisaw v. State Farm Mut. Auto. Ins. Co., 353 Ark. 668, 122 S.W.3d 1 (2003). However, in cases such as this where the parties do not dispute the essential facts, we simply determine whether the moving party was entitled to judgment as a matter of law. Jackson v. Blytheville Civ. Serv. Comm’n, 345 Ark. 56, 48 S.W.Sd 748 (2001).
14Arguments on Appeal
1. Subjoinder Requirement
Appellants first argue that the circuit court erred in finding their tax deed void because the manner in which the Van Burén County Assessor maintained its records did not deprive the original owners of due process. As appellants point out, the first mention of the requirement that the mineral interest be listed immediately below, or subjoined to, the surface interest is found in Sorkin, supra. There, the supreme court said that mineral interests had been listed in a special book with the names of the owners listed alphabetically. The court noted that a deputy in the county clerk’s office had testified that it was not possible to find a particular mineral interest in the book without checking the entire list of almost four thousand names, and that this resulted from the fact that there was no order or system with reference to the land calls. The court then observed that Ark. Stat. Ann. § 84^402, now codified as Ark.Code Ann. § 26-26-702 (Repl.1997), provides that the county clerk shall make and deliver to the assessor, in books prepared for that purpose, an abstract of lands; that in listing acreage he shall commence with the lowest number of township and range in the county, and in the northeast corner of each township; and that he shall then proceed numerically with all the sections, townships, and ranges. After calling attention to the statutes dealing with the assessment of mineral and timber interests severed from the fee, the court stated,
The minerals, being primarily an interest in the land, are severable only because the legislative authority has made them so; yet for taxing purposes they are so closely related to the realty that ownership identification and accuracy make it well-nigh imperative that the mineral listings be subjoined to the land assessments.
Sorkin, 216 Ark. at 912, 227 S.W.2d at 960 (emphasis in original).
| ¡Appellants argue that the Sorkin court did not state that subjoining was absolutely necessary and that its holding was really based on the fact that the listing procedures used made it difficult to find the assessment status of any particular mineral interest. Some support for that position can be found in Davis v. Stonecipher, 218 Ark. 962, 239 S.W.2d 756 (1951), the next case in which the court considered the matter. The Davis court held a tax title void, noting that the same erroneous method existed of arranging the names of the owners alphabetically, rather than arranging the land by section, township, and range. Nothing was said in that • case about the necessity of subjoining the mineral listing to the surface assessment, and again, nothing was said about such a requirement in Smiley v. Thomas, 220 Ark. 116, 246 S.W.2d 419 (1952). The requirement, however, was mentioned in Stienbarger v. Keever, 219 Ark. 411, 242 S.W.2d 713 (1951), although the opinion indicates that the real vice in the assessment procedure may have been the failure to list the mineral interests in the order of section, township, and range. In Adams v. Bruder, 275 Ark. 19, 627 S.W.2d 12 (1982), there is a more definite requirement of subjoining, but the opinion notes that the mineral interests were not listed by section, township, and range. The supreme court followed Adams in Hurst v. Rice, 278 Ark. 94, 643 S.W.2d 563 (1982). In Walker v. Western Gas Co., 5 Ark.App. 226, 635 S.W.2d 1 (1982), this court held that the case was controlled by Adams.
In Blackburn, supra, the mineral interest was forfeited for 1931 taxes. The min eral interests were listed by section, township, and range in the same book as the surface interests. The appellants in that case argued, as appellants do here, that subjoinder was not absolutely required by the statutes. Nevertheless, this court affirmed:
|6We recognize the force of the appellants’ argument.... But we are faced with two problems. First, we do not agree that the present-day regulations of the Assessment Coordination Division can affect the assessment of mineral interests in 1931. Second, even if we agreed with the appellants’ argument as to the effect of the cases discussed above, we are faced with the Arkansas Supreme Court decision of Garvan v. Potlatch Corporation, 278 Ark. 414, 645 S.W.2d 957 (1983).
In that case the court cited three of the cases discussed above, Adams, Ste-inbarger [Stienbarger], and Sorkin, and said, “Those cases all hold that when a separate assessment is made for mineral interests, the assessment must be ‘subjoined’ to the fee assessment.” The opinion defines the word “subjoined” and states, “The separate assessments must be listed individually immediately after each respective fee or surface interest.” Thus, the question of whether the subjoining of surface and mineral rights is absolutely necessary is not open for us to decide in this case.
8 Ark.App. at 110-11, 650 S.W.2d at 590. This language is equally applicable to the present case.
After this court’s opinion in Blackburn, the supreme court addressed and rejected an argument similar to the one appellants make here — that subjoinder is not required where the mineral interests were listed separately, but also were listed by section, township, and range. Dawdy v. Holt, 281 Ark. 171, 662 S.W.2d 818 (1984). The court stated,
The appellants also point out that, unlike the case in Sorkin, the assessment method used did not deprive the taxpayer of due process of law, obscure the information from the taxpayer, prejudice the taxpayer, or burden an easy determination by an owner of his tax status at a given time. Our cases have taken a clear direction for years in this matter and if any change is needed, as the appellants suggest, it is a matter for the legislature.
Id. at 174, 662 S.W.2d at 819.
As part of this point, appellants also argue that the supreme court’s departure from a due-process rationale for the subjoinder rule in Dawdy and Garvan constitutes an unconstitutional violation of the separation-of-powers doctrine. However, the issue is not preserved for our review because the circuit court did not clearly and specifically address the |7issue. To preserve an argument for appeal, even a constitutional one, the appellant must obtain a clear ruling below. Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002).
2. Retroactive Application of Section 26-26-1112
In their second point, appellants argue that section 26-26-1112 should be retroactively applied to the present case because it was in effect at the time the circuit court made its decision. The legislature accepted the supreme court’s invitation in Dawdy and enacted Act 961 of 1985, now codified at Ark.Code Ann. § 26-26-1112, which provides that “[c]ounty as sessors may maintain separate records for severed mineral interests if the records are maintained by legal description of the surface estate in the same manner as records of the estates are maintained.”
The supreme court acknowledged section 26-26-1112 in Gilbreath v. Union Bank, 309 Ark. 360, 830 S.W.2d 854 (1992), but declined to apply it retroactively. This court, like the circuit court, cannot overrule a decision of the Arkansas Supreme Court. Osborne v. Bekaert Corp., 97 Ark. App. 147, 245 S.W.3d 185 (2006). We also cannot ignore the fact that the tax forfeiture at issue occurred in 1970, long before section 26-26-1112 was enacted. Gil-breath involved an assessment and forfeiture that occurred in 1981. Moreover, this court in Blackburn refused to apply an administrative regulation similar to section 26-26-1112 to a 1931 tax assessment.
Appellants also argue that section 26-26-1112 was a “curative act” designed to | ^overcome the subjoinder problem. The issue is whether the legislature intended it to be a curative act. Surely it had this issue in mind, given that the Act was passed in such close proximity to the supreme court’s Dawdy decision, and Dawdy invalidated a tax deed. On the other hand, if the legislature had intended the Act to have retroactive application so as to render tax deeds valid, it could easily have said so.
3. Equitable Arguments
For their third point, which they characterize as an alternative basis, appellants argue that principles of equity and estop-pel preclude appellees from defeating their record title. The basis for the argument is that appellees have acknowledged that they have not paid property taxes on the mineral interests for more than thirty years. The supreme court rejected this very argument in Adams, supra.
Affirmed.
GLADWIN and BROWN, JJ., agree.
. The motion for summary judgment was filed by the Morgan heirs. It was adopted or supported by the other appellees.
. This court has considered the authorities contained in appellants’ post-argument motion to cite additional authorities on this issue. However, we are not persuaded that the issue has been preserved. | [
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JOHN B. ROBBINS, Judge.
| TWest Memphis Adolescent Residential, LLC (WMAR), brings this appeal from the Crittenden County Circuit Court’s grant of summary judgment in favor of appellees J.T. Compton; Jayco Acquisition & Holding, Inc.; Plantation Homes of Crittenden County, Inc. (Plantation); Crymes Home Health, Inc. (Crymes); Ray Boeckmann; Jeannie Boeckmann; and Dayspring Behavioral Health Services, Inc. (Dayspring), on WMAR’s breach-of-contract 12and tort claims. WMAR raises two main points, each with several subpoints. We affirm in part and reverse and remand in part.
J.T. Compton controlled two Arkansas residential-care facilities-Plantation, in West Memphis, and Crymes, in Forrest City. In 2002, WMAR was a start-up mental-health-services provider that had not yet received its accreditation. In February 2002, it entered into lease agreements with Plantation and Crymes to provide mental-health services at their facilities. The period of each lease was for one year, with two one-year options to renew under the same or comparable terms. Either party could terminate these leases at any time with thirty days’ notice. The leases also provided that the use and occupancy of the leased premises by WMAR was subject to the terms and conditions of the lease and to reasonable rules and regulations for the use thereof as prescribed from time to time by the lessors. WMAR began providing services at the facilities in March 2002.
In June 2002, WMAR entered into -written services contracts with Plantation and Crymes. The contracts provided that they would remain in effect until cancelled. Both agreements provided that they “may only be canceled by either party by giving thirty (30) days written notice.” The original typed number (30) in the provision was partially interlined and replaced with a numerical “60” that appeared to be initialed by Ray Boeckmann on behalf of Plantation and Crymes, and Rick Draper on behalf of WMAR.
|aAlso in June 2002, WMAR entered into an agreement with Jeannie Boeckmann to be its clinical services director at the facilities. The relationship was stated to be that of an independent contractor and was for a period of one year, unless otherwise terminated. The contract could be terminated for cause at any time. It could also be terminated without cause upon thirty days’ notice.
As part of its start-up phase, WMAR also entered into an agreement, common in the field at the time, with Dayspring for Dayspring to provide Medicaid billing services and assist WMAR in obtaining the accreditation it needed to submit bills to Medicare under its own name. This agreement included a provision that, for a period of five years after the termination or nonrenewal of the agreement, WMAR would not provide rehabilitative services in any county in which Dayspring was providing services at the time of the agreement, or in any county contiguous to those counties. The provision also stated that, during the term of the agreement, WMAR would not expand its services beyond certain listed counties. The agreement stated that it could not be terminated at any time without cause unless there was the written mutual consent of both parties. The agreement also included another termination provision that either party could terminate the agreement by providing ninety days’ written notice to the other party.
During the first half of 2002, Compton had been attempting to find a buyer for the facilities after an earlier sale fell through. Jean-Ann Boschert of Counseling Consultants, Inc. (not a party), had an interest in purchasing the facilities because of her familiarity with them when her company had been the treatment provider there before being replaced by WMAR. |4In June 2002, Ray Boeckmann, Jeannie’s husband, was hired by Compton to serve as facility administrator. Beginning in the summer of 2002, the Boeckmanns and Co-nipton discussed a purchase of the facilities by Ray Boeckmann. The Boeckmanns and Conipton entered into an agreement, dated August 7, 2002, for the sale of the real estate. The transaction closed on August 22, 2002, with possession to be delivered on September 1, 2002. Boeckmann and Dayspring later entered into a contract for Dayspring to provide mental health services to the residents.
On August 30, 2002, WMAR filed suit against appellees asserting tort and contract claims. The complaint alleged that appellees were engaged in a conspiracy to defraud WMAR and obtain benefits through fraud and tortious interference with WMAR’s contracts with the various appellees. The complaint further alleged that appellees sabotaged WMAR’s business by making false statements, depriving WMAR and its employees of access to the facilities, and by hindering performance of their own contracts with WMAR. The complaint sought a declaration of WMAR’s rights under the two leases and the two service contracts, as well as compensatory and punitive damages. The various appel-lees answered, denying the material allegations of the complaint.
On April 5, 2005, Dayspring filed a motion for partial summary judgment on WMAR’s tort claims. On April 13, 2006, the Conipton appellees filed a motion for partial |fisummary judgment on the claims involving improper notice to WMAR. The Boeckmanns filed a motion for summary judgment.
After a hearing, the circuit court granted the various motions for summary judgment filed by appellees. The pertinent language from the court’s order is as follows:
[Appellees] had every right to improve their economic circumstances, even though it be to the detriment of [WMAR]. The existence of a contract between [WMAR] and [appellees] does nothing to alter that fact, unless the contract includes a clause that forbad them from competing with [WMAR]. The court has found no such clause, and is loath to write such a provision into the contract when the parties themselves did not do so.
The court issued a second order clarifying that it had found no support for the contention that appellees had breached the various contracts. On October 10, 2008, the court entered an order dismissing WMAR’s complaint with prejudice. This appeal followed.
Arguments on Appeal
I. Breach of Contract
When performance of a duty under a contract is due, any nonperformance is a breach. Restatement (Second) of Contracts § 235(2) (1981). Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement. Cantrell-Waind & Assocs. v. Guillaume Motorsports, Inc., 62 Ark. App. 66, 968 S.W.2d 72 (1998) (quoting Restatement (Second) of Contracts § 205). Moreover, a party has an implied obligation not to do | (¡anything that would prevent, hinder, or delay performance. See generally Community Bank of N. Ark. v. Tri-State Propane, 89 Ark.App. 272, 203 S.W.3d 124 (2005).
First, WMAR concedes in its briefs that it asserted no contract claims against either Ray Boeckmann or Jayco Acquisition & Holding. Therefore, they are entitled to summary judgment on the contract claims.
Second, we also find that summary judgment was appropriate as to some of WMAR’s breach-of-contract claims against Dayspring. In discovery, WMAR admitted that it had no evidence that Dayspring mishandled its claims. It is also undisputed that Dayspring sent two letters to WMAR indicating that Dayspring considered the agreement between the two parties to still be in effect.
We reach a different conclusion as to WMAR’s dispute over whether Dayspr-ing was withholding a larger percentage of funds than the parties agreed to in their contract and that this dispute was an attempt by Dayspring to destroy WMAR’s business. The agreement between WMAR and Dayspring provided that WMAR would pay to Dayspring a manage ment-utilization fee of 15 percent gross of all WMAR’s Medicaid billings until such time as WMAR elected to bill its own services and to reimburse Dayspring for all data-processing charges incurred on behalf of WMAR, including EDS charges, which were $0.17 per billing item. Once WMAR began billing its own services, the rate paid to Dayspring would be reduced to 13 percent at the beginning of the next month. Scot Canfield, CEO and part-owner of WMAR, testified that Dayspring was supposed to withhold 15 percent of the 17amount received for WMAR’s billings, but that Dayspring was withholding between 30 percent and 50 percent of WMAR’s billings. Whether a breach of contract has occurred is a question of fact. Worch v. Kelly, 276 Ark. 262, 633 S.W.2d 697 (1982).
We also hold that the summary judgment should be reversed as to the Compton appellees on WMAR’s breach-of-contract claim against them. WMAR argues that it was given insufficient notice as to the termination of its leases with the Compton appellees. It also argues that the Compton appellees breached their agreements, both the leases and the services contracts, by placing restrictions on WMAR’s ability to access its patients.
The sale of the facilities to Ray Boeck-mann did not, of itself, terminate the lease. Prince v. Alford, 173 Ark. 633, 293 S.W. 36 (1927). The provision allowing WMAR to renew the leases runs with the land and is enforceable against the Boeckmanns. Prince, supra. Thus, the sale of the facilities by Compton to the Boeckmanns could not terminate WMAR’s leases to the facilities without proper notice being given to WMAR.
There are too many unanswered questions for us to say with certainty that the Compton appellees did not breach their leases and services contracts with WMAR. See Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993). It is undisputed that J.T. Compton sent an August 1, 2002 letter to WMAR, stating that he was terminating the “contract” as of August 30, 2002. However, Mr. Canfield testified that he did not receive this letter until August 14, 2002. Moreover, it is unclear what “contract” Compton was referring to because there were four such agreements between his entities and WMAR. Adding to the uncertainty |sis an August 16, 2002 followup letter by Compton’s attorney clarifying the August 1 letter. The August 16 letter stated that the sixty-day-notice period in the services contracts was unauthorized and that thirty days’ notice was sufficient.
It is also unclear whether WMAR was allowed to return to the facilities after an August 21, 2002 incident where police were called because a WMAR employee was attempting to remain on the premises in violation of a memorandum Ray Boeck-mann issued the previous day, directing that, effective immediately, all WMAR personnel will leave the premises no later than 4:30 p.m. and that they would not have access to the facilities on the weekends. The leases allowed the Compton appellees as lessors to make reasonable rules and regulations for the use of the leased property. The services contracts, however, do not contain a provision allowing the facilities to make rules that limit WMAR’s access to the patients or otherwise interfere with WMAR’s ability to provide services. Therefore, we reverse the summary judgment in favor of the Compton appellees on WMAR’s breach-of-contract claims and remand for further proceedings.
II. Breach of Fiduciary Duty
WMAR next argues that appel-lees breached their contracts with WMAR by breaching their fiduciary duties to WMAR. Before there can be a breach of a fiduciary duty, a fiduciary relationship or a confidential relationship must exist. Contracting parties do not necessarily owe fiduciary duties to each other. See Evans Indus. Coatings, Inc. v. Chancery Court of Union County, 315 Ark. 728, 870 S.W.2d 701 (1994). WMAR does not explain what relationships |9of trust or confidence were developed with the various appellees because of the agreements. The circuit court could properly determine that none of the appellees owed a fiduciary duty to WMAR and, therefore, summary judgment was proper on this part of WMAR’s claim.
III. Breach of Implied Covenants of Good Faith and Fair Dealing
WMAR also contends that there are factual issues in dispute as to whether appellees breached their contractual duties of good faith and fair dealing. Arkansas law, however, does not recognize a separate tort cause of action for breach of those implied covenants. Preston v. Stoops, 373 Ark. 591, 285 S.W.3d 606 (2008). The Preston court restated that Arkansas case law only recognizes the tort of bad faith against insurance companies. WMAR does not address Preston despite Dayspring’s reliance on it. Because Arkansas law does not recognize the cause of action WMAR brought against the appel-lees, they were entitled to judgment as a matter of law.
IV. Tortious Interference with Contract
Finally, WMAR argues that the circuit court erred in granting summary judgment on its claims for tortious interference. We disagree.
Arkansas has recognized wrongful interference with a contract as an actionable tort for over a century. See Mahoney v. Roberts, 86 Ark. 130, 110 S.W. 225 (1908). The elements of tortious interference that must be proved are (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or | ^termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Crockett v. C.A.G. Invs., Inc., 2010 Ark. 90, 361 S.W.3d 262. It is also required that the defendant’s conduct be at least “improper” for a valid tortious-interference claim. Id. Arkansas law also recognizes a privilege to compete, and the scope of this privilege is broad:
In short, it is no tort to beat a business rival to prospective customers. Thus, in the absence of prohibition by Statute, illegitimate means, or some other unlawful element, a defendant seeking to increase his own business may cut rates or prices, allow discounts or rebates, enter into secret negotiation behind the plaintiffs back, refuse to deal with him or threaten to discharge employees who do, or even refuse to deal with third parties unless they cease dealing with the plaintiff, all without incurring liability.
Office Machines, Inc. v. Mitchell, 95 Ark. App. 128, 234 S.W.3d 906 (2006) (citing Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 77, 671 S.W.2d 178, 181 (1984) (quoting W. Prosser, Law of Torts, § 130 (3d ed.1971)). The Kinco court also adopted the following definition of the circumstances under which competition will justify interfering with another’s business expectancy:
(1) One who intentionally causes a third person not to enter into a prospective contract relation with another who is his competitor or not to continue an existing contract terminable at will does not interfere improperly with the other’s relation if (a) the relation concerns a matter involved in the competition between the actor and the other and (b) the actor does not employ wrongful means and (c) his action does not create or continue an unlawful restraint of trade and (d) his purpose is at least in part to advance his interest in competing with the other.
283 Ark. at 78, 671 S.W.2d at 181-82 (quoting Restatement (Second) of Torts, § 768 (1977)). Our supreme court has noted that tortious interference with business expectancy is Indistinguishable from the privilege to compete. Stewart Title Guar. Co. v. American Abstract & Title Co., 363 Ark. 530, 215 S.W.3d 596 (2005); see also Hayes v. Advanced Towing Services, Inc., 73 Ark. App. 36, 40 S.W.3d 800 (2001). The supreme court has adopted the factors in Restatement (Second) of Torts § 767 (1979), for guidance about what is “improper” interference with the performance of a contract. Mason v. Wal-Mart Stores, Inc., 333 Ark. 3, 969 S.W.2d 160 (1998); see also K.C. Props. of N.W. Ark., Inc. v. Lowell Inv. Partners, LLC, 373 Ark. 14, 280 S.W.3d 1 (2008).
According to WMAR, appellees acted “improperly” because they were motivated, in part, by greed; they conspired to act in concert to force WMAR out of business; and they recruited WMAR’s employees to staff their new business. We hold that none of these allegations established that appellees acted improperly.
In Mason v. Wal-Mart Stores, supra, the supreme court held that allegations that the defendant in a tortious-interference case was motivated by “greed” could easily be replaced by allegations that the defendant’s objective was motivated by a desire for profits and thus not improper. 333 Ark. at 14, 969 S.W.2d at 166. The fact that appellees engaged in secret negotiations for the sale of the facilities and for other contracts without informing WMAR is also not improper. Kinco, supra. The allegations that appellees recruited WMAR’s employees is likewise not improper in the absence of a contractual provision prohibiting those employees from going to work for one of WMAR’s competitors. Office Machines, Inc. v. Mitchell, supra. WMAR has failed to show that appellees did anything more than engage in | ^privileged competition. The circuit court, therefore, did not err in granting summary judgment on the tor-tious interference claim.
For the benefit of the appellate bar, we note that WMAR has included many unnecessary documents in its addendum, such as multiple copies of the various contracts and leases; motions to dismiss and orders denying the motions; motions and orders on discovery disputes; motions in limine; scheduling orders; orders extending the time to respond to summary judgment motions; and protective orders. None of these documents were necessary to the arguments made on appeal. They total more than 150 pages of an addendum that contains 742 pages. Under Supreme Court Rule 4 — 2(a)(8), the contents of the addendum are to be limited to only those items necessary to an understanding of the issues on appeal or our jurisdiction. We have pointed out that an abstract and addendum can be deficient for containing too much material, as well as too little. See American Transp. Corp. v. Exchange Capital Corp., 84 Ark.App. 28, 129 S.W.3d 312 (2003); Miller v. Hometown Propane Gas, Inc., 82 Ark.App. 82, 110 S.W.3d 304 (2003).
Affirmed in part; reversed and remanded in part.
GRUBER and HENRY, JJ., agree.
. On occasion, we will refer to J.T. Compton, Plantation, and Crymes collectively as the Compton appellees. When such a reference is made it refers to all three entities.
. Dayspring and the Boeckmanns both filed motions to dismiss prior to filing their answers. Those motions were denied by order entered on May 9, 2005. No issue about that disposition is raised in this appeal.
. In addition to the notice of appeal from the October 10 order, WMAR also filed two “protective” notices of appeal, one from each of the earlier orders. Each notice was timely. | [
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PER CURIAM.
hAppellant Rickey C. Strain, Jr., was convicted by a Jefferson County jury of first-degree murder and was sentenced to 300 months’ incarceration in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed. Strain v. State, 2009 Ark. App. 99, 2009 WL 898117 (unpublished). Appellant then filed a petition for review in this court, which was denied. Strain v. State, CR 09-219 (Ark. May 14, 2009) (unpublished per curiam order).
Appellant subsequently filed in the trial court a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009), in which he argued that trial counsel had been ineffective for failing (1) to make a complete and thorough argument for a directed verdict, (2) to seek the appropriate jury instructions regarding accomplice liability, (3) to seek severance of appellant’s trial from his codefendant’s trial, and (4) to properly ar gue that a witness’s prior inconsistent statement could not be considered by the jury for the truth of the matter stated. That petition was denied following an evi-dentiary hearing, and appellant now brings the instant appeal of that denial. Because appellant has not established that the circuit court’s denial was clearly erroneous, we affirm.
12This court does not reverse a denial of postconviction relief unless the circuit court’s findings are clearly erroneous. Reed v. State, 2011 Ark. 115, 2011 WL 913208 (per curiam). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. In an appeal from a trial court’s denial of post-conviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Carter v. State, 2010 Ark. 231, 364 S.W.3d 46 (per curiam); Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam). Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Reese v. State, 2011 Ark. 492, 2011 WL 5589268 (per curiam) (citing State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007)). Under the Strickland test, a claimant must show that counsel’s performance was deficient, and the claimant must also show that the deficient performance prejudiced the defense to such an extent that the appellant was deprived of a fair trial. See id.
With respect to the requirement that prejudice be established, a petitioner must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and an appellant has the burden of overcoming this | ^presumption by identifying specific acts or omissions of trial counsel that, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Carter v. State, 2011 Ark. 226, 2011 WL 1896765 (per curiam).
For his first point on appeal, appellant argues that trial counsel was ineffective for failing to make a complete and thorough motion for directed verdict, which prevented the appellate court from ruling on the sufficiency of the evidence. In its opinion affirming appellant’s conviction, the Arkansas Court of Appeals found that appellant’s insufficiency-of-the-evidence argument was not preserved because trial counsel’s directed-verdict motion “[did] not specifically state how the evidence was insufficient or even mention what element of the crime was not proven.” Strain, 2009 Ark. App. 99, at 4, 2009 WL 398117. Trial counsel’s motion was conclusory and, in effect, only argued that there was not any evidence “that could be used against these two defendants.” Arkansas Rule of Criminal Procedure 33.1(a) (2009) specifies that a motion that merely states that the evidence is insufficient does not preserve for appeal issues relating to a specific' deficiency, such as insufficient proof on the elements of the offense.
According to appellant, had counsel made a more specific motion for directed verdict — pointing out that no witnesses had testified that appellant had fired a gun, that there were inconsistencies between one witness’s police report and his testimony at trial, and that another witness was a crack dealer with a lengthy arrest record — “[t]he circuit court would have granted a dismissal or a reduction on such grounds and, if not, the appellate court would have reversed and dismissed.”
To prevail on a claim of ineffective assistance of counsel based on counsel’s failure to | ¿preserve an issue for appeal, a petitioner must show that, had the issue been preserved, the appellate court would have reached a different decision. See generally Smith v. State, 2010 Ark. 137, 361 S.W.3d 840 (per curiam) (appellant required to establish actual speedy-trial violation to show ineffective assistance based on counsel’s failure to preserve speedy-trial issue for appeal); Sparkman, 373 Ark. 45, 281 S.W.3d 277 (failure to preserve issue of suppression of a custodial statement for appeal was ineffective assistance where statement was actually taken in violation of Sixth Amendment right to counsel). In the instant case, therefore, appellant must demonstrate that the appellate court would have found that the evidence adduced at trial was insufficient to support a conviction and would have overturned his conviction for that reason.
This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Norris v. State, 2010 Ark. 174, 368 S.W.3d 52 (citing Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004)). The appellate court reviews the evidence in a light most favorable to the State and considers only the evidence that supports the verdict. Id. (citing Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002)). This court affirms a conviction if substantial evidence exists to support it. Stone, 348 Ark. 661, 74 S.W.3d 591. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001).
Here, appellant’s conviction was supported by evidence that he and his code-fendant were driving through the area shortly before the murder occurred, that one of the witnesses had purchased cocaine from appellant and his codefendant, that the same witness subsequently | .^spotted “the same two people that [he] had met just prior to this kicking the crap out of someone, and then [he] saw them shoot,” that a second witness identified both appellant and the codefendant as the men who beat the victim, and that the second witness placed both defendants near the victim when the fatal shots were fired. Based on this, it is clear that the conviction was supported by substantial evidence, and counsel was accordingly not ineffective for failing to preserve the sufficiency-of-the-evidence issue for appeal. The trial court was therefore not clearly erroneous in denying relief on this point.
Appellant’s second argument on appeal is that trial counsel was ineffective for failing to request three specific jury instructions: (1) the “mere presence” jury instruction, AMI Crim.2d 404, which would have informed the jury that the mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make one an accomplice; (2) an instruction based on Arkansas Code Annotated section 5-2-406 (Repl.2005), which would have specified that appellant was only criminally liable for the degree of the offense that was consistent with his culpable mental state or his accountability for an aggravating fact or circumstance; and (3) an instruction based on Arkansas Code Annotated lfisection 5-2-403, which would have altered AMI Crim.2d 401 to require that the jury determine whether appellant was acting with the requisite mental state for a murder conviction in order to hold him liable as an accomplice to that murder.
According to appellant, these instructions, both collectively and separately, would have established that appellant could not be convicted solely based on his presence at the murder scene, that the State had to prove some specific intent to cause the murder in order to convict appellant therefor, and that appellant could only be convicted of a degree of homicide that matched his personal culpability. Appellant argues that omitting these instructions fell below a reasonable standard of care, and there was no strategic or tactical reason for leaving this omission. Further, appellant argues that prejudice is established under Strickland because there is a reasonable probability that appellant would have been acquitted or convicted of a lesser offense had these instructions been given.
Regarding the “mere presence” instruction, we have repeatedly held that it is implicit in the accomplice-liability instruction — which states that a party must solicit, advise, encourage, coerce, aid, agree to aid, or attempt to aid the principal to commit the crime — that mere presence or acquiescence at the crime scene is not enough. See Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002) (citing Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999)); Galloway v. State, 330 Ark. 143, 953 S.W.2d 571 (1997); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997); Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996). We have also held that where, as here, the defendant presented no evidence that he was merely present at the scene, and other evidence adduced at trial demonstrated that the defendant was a participant in the crime, the “mere ^presence” instruction is not warranted. See Webb, 326 Ark. 878, 935 S.W.2d 250. Additionally, failure to give the “mere presence” instruction when requested cannot be reversible error where, as here, AMI Crim.2d 401 was given. See Henderson, 349 Ark. 701, 80 S.W.3d 374. Even assuming arguendo that the “mere presence” instruction might have been warranted in the instant case, it follows logically from our holding in Henderson that trial counsel cannot be ineffective for failing to request an instruction that is “implicitly include[d]” in instructions that were given. See id.
As to the instruction based on Arkansas Code Annotated section 5-2-406, appellant argues that he was entitled to that instruction as a matter of law based on our holding in Jones, in which we noted that “fs]ection 5-2-406 addresses the situation where two or more defendants are charged and tried together and where the degree of each defendant’s culpability may differ.” 336 Ark. 191, 984 S.W.2d 432 (citing Blann v. State, 15 Ark.App. 364, 695 S.W.2d 382 (1985)). However, we have also held that, “although [section 5-2-406] is a correct statement of the law, it is not a model jury instruction^] and ... it is unnecessary to give it when its substance is covered by other instructions.” Wilson v. State, 364 Ark. 550, 222 S.W.3d 171 (2006) (citing Ventress v. State, 303 Ark. 194, 794 S.W.2d 619 (1990)); see also Wallace v. State, 270 Ark. 17, 603 S.W.2d 399 (1980); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). Furthermore, non-model jury instructions are to be given only when the circuit court finds that the model instructions do not accurately state the law or do not contain a necessary instruction on the subject at hand. Jackson v. State, 359 Ark. 297, 197 S.W.3d 468 (2004).
In the instant case, the jury was instructed as to what the State had to establish to convict | ^appellant and his code-fendant of capital murder, first-degree murder, second-degree murder, and manslaughter. With respect to first-degree murder, for which they were both ultimately convicted, the jury was instructed that “the State ... must prove that, with the purpose of causing the death of Wade Miller, they caused the death of Wade Miller.” The jury was also told that “a person acts with purpose ... when it is his conscious object to engage in conduct of that nature or to cause such a result.” The jury was instructed on the meaning of accomplice as well. After being so instructed, the jury determined that appellant was not guilty of capital murder, but that he possessed the requisite mental state to be convicted of first-degree murder. Clearly, then, the fact that an instruction based on section 5-2-406 was not given was not in error, as its substance was covered by other instructions.
Additionally, we note that, to show prejudice under Strickland based on trial counsel’s failure to request a specific instruction, the United States Supreme Court has held that an appellant must establish that it was “reasonably likely that the instruction would have made any difference [in the outcome of the trial] in light of all the other evidence of guilt.” Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). Here, presented with all of the aforementioned evidence of guilt, the jury convicted appellant of first-degree murder, and that conviction was supported by substantial evidence. Appellant has provided nothing other than bare conjecture that an instruction based on section 5-2-406 would have resulted in an acquittal or a conviction on a lesser charge, and, as such, he has not established prejudice under Strickland as defined in Berghuis.
The third instruction that appellant argues that trial counsel should have proffered was |flan instruction based on Arkansas Code Annotated section 5-2-403, which would have altered AMI Crim.2d 401 to require that the jury determine whether appellant was acting with the requisite mental state for a murder conviction in order to hold him liable as an accomplice to that murder. Appellant seems to overlook, however, that the jury was instructed as to the mental state required for each of the degrees of homicide. They then considered the evidence presented at trial and found that he had the requisite mental state for a first-degree-murder conviction. Appellant does not explain how, had trial counsel asked for an instruction based on section 5-2-406, the outcome would have been different. If appellant had the culpable mental state to be convicted of first-degree murder, that would not change simply by instructing the jury that appellant had to have that same culpable mental state to be convicted as an accomplice to first-degree murder. See Whiteside v. State, 2011 Ark. 371, 383 S.W.3d 859 (citing Lawshea v. State, 2009 Ark. 600, 357 S.W.3d 901) (holding that there is no distinction between principals and accomplices insofar as criminal liability is concerned). Appellant therefore cannot establish prejudice on this claim, and counsel was not ineffective under Strickland. See Berghuis, 560 U.S. 370, 130 S.Ct. 2250. Furthermore, because none of the arguments regarding trial counsel’s failure to request certain instructions was meritorious, the circuit court was not clearly erroneous in denying relief based on these arguments.
For his third argument on appeal, appellant argues that trial counsel’s failure to seek severance of appellant’s trial from that of his codefendant amounted to ineffective assistance of counsel. Specifically, appellant claims that the facts of this case weighed heavily in favor of severance, that there was no strategic reason not to move for a severance, and that there is a | Reasonable probability that appellant would have been acquitted if he had been tried separately. In its order denying postconviction relief, the circuit court determined that the defenses were not antagonistic to one another, as neither defendant blamed the other for the shooting, both based their defenses on the lack of credibility of the witnesses and failure of the state to present sufficient evidence to support a conviction, and none of the evidence brought forth by either defendant tended to inculpate the other defendant. As such, the circuit court held that appellant had not established prejudice under Strickland. We agree.
Generally, the decision about whether to seek a severance is one of trial strategy and is not grounds for postconviction relief. See Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000) (citing Coston v. State, 284 Ark. 144, 680 S.W.2d 107 (1984)); see also Kemp v. State, 348 Ark. 750, 74 S.W.3d 224 (2002). This is true even where two defendants are represented by a single attorney. See Harrison v. State, 371 Ark. 474, 268 S.W.3d 324 (2007). Unless the defendants’ conflicting trial strategies go to the essence of the defenses and are so great that both defenses cannot be accommodated by the jury, severance is not required, and counsel cannot be ineffective for failing to request it. See Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999).
In the instant case, appellant argued that trial counsel should have moved for a severance because the codefendants’ defenses were antagonistic to one another inasmuch as “it should have been argued that [appellant] had no involvement even if [his codefendant] had.” Any argument based on what strategy of defense should have been used, however, is without merit, as trial counsel’s decisions regarding what theory of the case to pursue represent the epitome of trial strategy. Flowers v. State, 2010 Ark. 364, 370 S.W.3d 228 (per curiam) (citing Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006)). It is accordingly not a proper basis for relief under Rule 37.1. Id. (citing Smith v. State, 2010 Ark. 137, 361 S.W.3d 840 (per curiam)).
Appellant also argues that the facts of the case supported severance under Williams because the evidence was difficult to segregate; appellant had no criminal record, but his codefendant did; and the evidence was stronger against the co-defendant. See Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999) (delineating seven factors a court is to consider when deciding whether severance is warranted). Appellant does not specify why the evidence was difficult to segregate, and this conclusory argument will not warrant post-conviction relief. See Payton v. State, 2011 Ark. 217, 2011 WL 1805340. Likewise, although he cites to our decision in McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983), appellant does not explain how the factors that he identified established that he was “unduly jeopardized by a joint trial.” We are not persuaded by appellant’s conclusory allegation that, had the trials been severed, there is a reasonable probability that he would have been acquitted, and the circuit court was not clearly erroneous in determining that appellant failed to establish prejudice under Strickland.
Appellant’s final point on appeal is that trial counsel was ineffective for failing to properly argue that a witness’s prior inconsistent statement could be considered by the jury for the truth of the matter asserted. At trial, a witness testified that he did not see the earlier altercation between the defendants and the victim, but that, apparently, appellant was not involved in that fight because he was in the codefendant’s car. The witness was then presented with his earlier statement to police, in which he averred that appellant had been involved in the altercation. Appellant argues that trial counsel was ineffective for failing to object to the introduction of this [^statement or ask for a limiting instruction, which he argues he was entitled to, as this was a prior, un-sworn inconsistent statement. According to appellant, the failure to ask for this instruction or to object to the statement outright resulted in the jury’s considering the prior statement for the truth of the matter asserted rather than solely going to the credibility of the witness. The circuit court denied relief on this point, finding that the writing was not introduced into evidence, that the witness merely used it to refresh his memory, and that trial counsel cross-examined the witness regarding the discrepancies.
Arkansas Rule of Evidence 613(b) (2011) prohibits the introduction of extrinsic evidence of a prior inconsistent statement unless the person who made the statement is given a chance to explain the inconsistencies and the opposing party is given an opportunity to cross-examine the witness as to the prior statement. Here, however, the prior statement was not introduced into evidence, so the strictures of Rule 613(b) do not apply. Instead, the witness merely used the prior statement to refresh his memory, and he then testified once his memory was refreshed. Such situations are governed by Rule of Evidence 612(a), which required that the actual written statement be produced at trial and appellant be given an opportunity to cross-examine the witness regarding the statement, both of which occurred here.
Trial counsel cannot be ineffective for failing to make an objection or argument that is without merit. Flowers, 2010 Ark. 364, 370 S.W.3d 228; see Johnson v. State, 2009 Ark. 552, 2009 WL 3681646; Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). Because appellant did not establish that there was any basis upon which trial counsel could have objected to the prior statement being used in the manner in which it was, and because he did not establish that there was any relevant limiting | ^instruction that appellant should have sought, appellant accordingly failed to demonstrate that any objection to the statement or request for a limiting instruction would have been meritorious, and he thus failed to establish that the circuit court was clearly erroneous in determining that his trial counsel was not ineffective. See Flowers, 2010 Ark. 364, 370 S.W.3d 228.
Based on all of the foregoing, we determine that none of the arguments advanced by appellant was meritorious, and the circuit court did not clearly err in finding that trial counsel was not ineffective. Therefore, the circuit court’s order denying postconviction relief is affirmed.
Affirmed.
. In his original Rule 37.1 petition, appellant raised an alternative argument on this first point, asserting that, had counsel’s directed-verdict motion included a motion to reduce the charges to negligent homicide based on the lack of evidence presented, the charge would have been reduced. The circuit court did not provide a ruling on this argument, and appellant properly filed a motion seeking a ruling, which the circuit court also denied. Failure to obtain a ruling on an issue precludes our review of that issue on appeal. Sykes v. State, 2011 Ark. 412, 2011 WL 4635021 (per curiam). However, while we stress that the circuit court should have provided a ruling on the omitted issue, we note that, even had the issue been preserved for our review, because the first-degree-murder conviction was supported by substantial evidence, the omitted argument would not have provided relief, | [
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COURTNEY HUDSON HENRY, Judge.
| Appellant Jason Martin, a police officer employed by the Brinkley Police Department, appeals an order entered by the Monroe County Circuit Court denying his motion for summary judgment. For reversal, Martin contends that he is entitled to qualified immunity on the claims brought against him by appellees Brooks Hallum and Sharon Hallum. We agree that appellant is protected by immunity on all but a battery claim asserted by Sharon. Therefore, we affirm in part and reverse in part the denial of summary judgment.
The record reflects that Brooks and his wife, Tamara Hallum, are the parents of a daughter, D.H., who was five years old in May 2006. At that time, Brooks and Tamara were separated. On May 7, 2006, Brooks and Deborah Harding, a caseworker for the Arkansas Department of Human Services (DHS) in White County, entered into a safety plan with [2regard to D.H. According to this plan, Brooks agreed to supervise the child at all times and to prevent the child from being in the presence of D.F., Tamara’s sixteen-year-old son from another relationship. Further, the plan recited Brooks’s understanding that, if he did not follow the plan, the child would be taken into protective custody by DHS.
On May 8, 2006, Brooks filed an ex parte motion for emergency custody of D.H. in a divorce action that Brooks had filed against Tamara in 2004 in the Lonoke County Circuit Court. In this motion, Brooks requested custody based on the allegation that D.F. had sexually abused D.H. Deborah Harding provided an affidavit to support the motion, stating that an examination of the child at Arkansas Children’s Hospital confirmed that the child had been sexually abused and that the safety plan was put into place based on the recommendation of the law enforcement officers who were investigating the allegation of abuse. Harding added that, if an emergency order were not entered, DHS would have no choice but to place a seventy-two-hour hold on the child. On that same day, the Lonoke County Circuit Court entered an ex parte order placing custody of D.H. in Brooks. The court allowed Tamara supervised visitation and directed that the child have no contact with D.F.
On May 15, 2006, the Lonoke County Circuit Court conducted a hearing on the custody matter. As reflected by an order entered on May 17, 2006, the court set aside the ex parte order granting Brooks custody and dismissed the divorce action for improper venue and for failure to prosecute under the provisions of Rule 41 of the Arkansas Rules of Civil Procedure.
laThe events that gave rise to this litigation occurred on May 16, 2006, the day after the custody hearing but the day before the Lonoke County Circuit Court entered its dismissal order. That afternoon, D.H. was playing in a softball game in Brinkley, which is in Monroe County. Before the game ended, Brooks left the ballpark to attend to a business matter. Brooks’s departure left the child in the care of Sharon, his mother. Tamara and her sister, Tracy Johnson, called the Brinkley Police Department and asked specifically for Officer Martin to meet them at an apartment complex near the ballpark. Consequently, the dispatcher sent Officer Martin to the complex. The two women informed Officer Martin that they wanted to visit Tamara’s child at the ball field and that they expected trouble.
This prediction came true. In Sharon’s presence, Tracy picked up D.H. and gave her to Tamara. Sharon and Tamara then engaged in a tug-of-war over the child. Officer Martin intervened and eventually gave D.H. to Tamara, who proceeded toward the apartment complex. Sharon followed, as did Officer Martin, who was joined by off-duty police officers Arnold Leon and Ed Randle, who happened to be at the ballpark. When Tamara arrived at the apartment complex, she and D.H. entered a black truck. As Tamara was driving away, a truck driven by Brooks struck the front of the black truck. The officers arrested Brooks on charges of driving on the wrong side of the road, assault, and endangering the welfare of a child. The officers also assembled Tamara, D.H., and Sharon at the police station and summoned DHS as well. DHS took D.H. into protective custody, and she remained in foster care pursuant to orders of the juvenile court in Prairie County until January 23, 2007, when |4the court awarded Brooks custody. A district court ultimately dismissed the three charges levied against Brooks.
Thereafter, Brooks and Sharon filed suit against Officer Martin, asserting civil-rights claims against him in his individual capacity, as well as simple tort claims. Specifically, Brooks alleged on behalf of D.H. that Officer Martin violated her civil rights by filing false charges against Brooks for the purpose of depriving him of custody. Brooks also asserted that Officer Martin violated his civil rights by arresting him without probable cause. In addition, Brooks alleged that Officer Martin engaged in a conspiracy with Tamara and Tracy to deprive him of custody by arresting him without probable cause. Further, Brooks asserted claims of malicious prosecution and abuse of discretion, based on the absence of probable cause for his arrest. Sharon alleged that Officer Martin violated her civil rights by using excessive force against her during the incident. She also asserted a claim of battery.
Officer Martin filed a motion for summary judgment claiming entitlement to qualified immunity as a city employee pursuant to Arkansas Code Annotated section 21-9-301 (Repl.2004). Brooks and Sharon resisted the motion, and the parties relied on affidavits, depositions, photographs, and a videotape of the incident to support their respective positions.
According to Officer Martin’s deposition testimony, when he met Tamara and Tracy at the apartment complex, he inquired as to who had custody of the child. He said that the women told him that Tamara and her husband were separated but that there were no papers | .^establishing custody in either parent. Officer Martin stated that he advised them that he could not become involved in a custody dispute but that he would keep the peace if trouble erupted. Officer Martin then positioned himself by the concession stand at the ballpark. According to Officer Martin, he heard screaming and saw Tamara and Sharon trying to take D.H. from one another. Officer Martin stated that he told them to calm down but that they continued to fight over the child. He said that he took the crying child in his arms for her own safety. Officer Martin stated that, as between the mother of the child and a grandmother, he handed D.H. to Tamara, who began walking back to the apartment complex. Officer Martin testified that Sharon remained hysterical and that she kept trying to grab hold of the child, saying that she had custody papers in her vehicle. Officer Martin said that he repeatedly told Sharon to back off and to retrieve the papers she claimed to possess.
In her deposition, Sharon testified that Tracy picked up D.H. and hugged her and that all was well until Tracy walked away with D.H. and gave her to Tamara. Shar on admitted that she tried to physically regain control of D.H. from Tamara. She said that Tamara called to Officer Martin, who then grabbed her arms. Sharon denied, however, that she was reaching for D.H. when Officer Martin pulled her away from Tamara. She testified that she told Officer Martin that she had custody papers in her vehicle and that Martin advised her to get them.
Sharon further testified that Officer Martin allowed Tamara to leave with D.H., despite her protestations. Sharon said that she followed Tamara to the apartment complex 16and that Officer Randle stopped her from opening the door of the black truck. In terms of her injuries, Sharon testified that Officer Martin grabbed and squeezed her arms several times, and she submitted photographs showing large bruises on her upper arms. She stated that she suffered from depression as a result of the incident and that her doctor had prescribed medication as treatment for that condition.
By deposition, Brooks testified that he received a phone call from his brother, who alerted him that Tamara was taking D.H. away in a black truck. He said that he rushed to the apartment complex and that he blocked the pathway of the black truck with his vehicle, a white truck. Brooks stated that he struck the black truck because, in his haste to recover D.H., he exited his truck without placing the ignition in the park position. Brooks further testified that he had a copy of the safety plan with him and that the social worker who came to the police station was willing to allow him to take custody of D.H. He said that Officer Martin, however, told the social worker that he could not exercise custody because of the charges lodged against him.
In an affidavit, Officer Randle stated that he was watching a game at the ballpark when he heard loud voices. He saw Officer Martin and Sharon walking at a hurried pace and that Sharon appeared to be arguing with Officer Martin. Officer Randle said that he followed them to the apartment complex and observed Sharon yelling at someone in a black truck and pulling on the door handle. He stated that he and Officer Martin kept Sharon from opening the door of the black truck. Officer Randle said that he spoke with Tamara and told her that 17she could leave in order to restore peace. He stated that, as Tamara was leaving in the black truck, a white truck crossed the center line and collided with the front of the black truck. Officer Randle said that Brooks jumped from the driver’s side of the white truck and over the hood of the white truck and started pulling on the driver’s door of the black truck. He said that he and Officer Martin pulled Brooks away from the black truck and placed him under arrest for vehicular assault.
At the hearing on appellant’s motion for summary judgment, the parties provided the court with a videotape of the incident that Tracy filmed after she handed D.H. to Tamara. The tape begins at a point where Officer Martin is holding the child. Sharon is seen moving from side to side and grasping at the child’s arms. Officer Martin passes D.H. to Tamara, and Sharon continues to grab for the child. The tape also captures Officer Leon trying to keep Sharon away from Tamara and the child, and Sharon is shown pushing Officer Leon. Tamara then begins to move away. Sharon attempts to block her path, and Tamara yells for the officers to get Sharon away from her. The tape shows Officer Martin pull Sharon to the side and off camera. Next, the tape shows Officer Martin and Sharon walking together at a distance from Tamara. Then, Tamara and the child begin to run. Throughout the tape, one can hear someone yelling at Sharon that “the papers were thrown out and you know it.” Next, the tape captures Sharon standing near the black truck as it leaves the area. Following this, the tape shows the aftermath of the collision. Brooks’s truck is not damaged, but the |8front bumper of Tamara’s truck is dented in the center. Brooks’s truck is also positioned directly in front of Tamara’s truck that is stopped in the right lane of traffic.
The trial court issued a letter opinion denying appellant’s motion for summary judgment. The court found that summary judgment was not appropriate because material facts remained in dispute. Officer Martin has appealed the subsequent order entered by the trial court denying the motion for summary judgment on his claim of qualified immunity.
On appeal, Officer Martin contends that he is entitled to qualified immunity as a matter of law on all of the claims asserted against him and that the trial court erred by denying his motion for summary judgment. Ordinarily, the denial of a motion for summary judgment is neither reviewable nor appealable. See City of Fayetteville v. Romine, 373 Ark. 318, 284 S.W.3d 10 (2008). However, that general rule does not apply where the refusal to grant a summary-judgment motion has the effect of determining that an appellant is not entitled to immunity from suit. Gentry v. Robinson, 2009 Ark. 634, 361 S.W.3d 788. The rationale justifying an interlocutory appeal on this issue is that the right to immunity from suit is effectively lost if the case is permitted to go to trial. Simons v. Marshall, 369 Ark. 447, 255 S.W.3d 838 (2007).
Officer Martin’s claim of qualified immunity is based on Arkansas Code Annotated section 21-9-301, which provides:
(a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be | ¡¡immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.
(b) No tort action shall lie against any such political subdivision because of the acts of its agents or employees.
In cases involving immunity under section 21-9-301, we apply the same analysis that is utilized when addressing the issue of qualified immunity of state employees under Arkansas Code Annotated section 19-10-305 (Repl.2007). Romine, supra. Also, qualified immunity under Arkansas law is akin to its federal counterpart and rests on the same principles as federal law. See Baldridge v. Cordes, 350 Ark. 114, 85 S.W.3d 511 (2002).
The purpose of qualified immunity is to allow public officers to carry out their duties as they think right, rather than acting out of fear for their own personal fortunes. Greiner v. City of Champlin, 27 F.3d 1346 (8th Cir.1994). Toward this end, police officers have qualified immunity from liability in their individual capacity unless they violate a clearly established right of which a reasonable person would know. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A motion for summary judgment based upon qualified immunity is precluded only when the plaintiff has asserted a constitutional violation, demonstrated that the constitutional right is clearly established, and raised a genuine issue of fact as to whether the official would have known that the conduct violated that clearly established right. Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005). Whether the officer is immune ordinarily should |inbe decided by the court long before trial, Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991), or else much of the benefit of the rule will be lost. Greiner, supra.
Of course, our courts have repeatedly held that summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Gentry, supra. On appellate review, we determine whether summary judgment was appropriate based on whether the eviden-tiary items presented by the moving party in support of the motion leave a material fact unanswered. City of Farmington v. Smith, 366 Ark. 473, 237 S.W.3d 1 (2006). We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Brt, supra. Our review focuses not only on the pleadings but also on the affidavits and other documents filed by the parties. Dodson v. Taylor, 346 Ark. 443, 57 S.W.3d 710 (2001). In viewing the evidence in the light most favorable to the party resisting the motion, we are not obliged to ignore incontrovertible evidence that is depicted on a videotape. Wallingford v. Olson, 592 F.3d 888 (8th Cir.2010) (citing Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)).
The issue of whether a party is immune from suit is reviewed de novo on appeal. Romine, supra. Whether summary judgment on grounds of immunity is appropriate on a particular set of facts is purely a question of law. Gentry, supra. Although the determination of whether there is a genuine issue of material fact is a question of law under these |ncircumstances, it is a legal question that sits near the law-fact divide. Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
We first address the propriety of summary judgment with regard to the claims presented by Brooks. Several of Brooks’s claims are based on the Arkansas Civil Rights Act of 1993, while others involve claims of malicious prosecution and abuse of process. Each of these claims, however, are premised on the assertion that Martin lacked probable cause to arrest him for either driving on the wrong side of the road, assault, or endangering the welfare of a child. The right not to be arrested or prosecuted without probable cause is a clearly established constitutional right. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). However, an arresting officer is entitled to qualified immunity if the arrest was objectively reasonable, and officers of reasonable competence could disagree on whether the probable-cause test was met. Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).
Probable cause exists if “at the moment the arrest was made ... the facts and circumstances within [a police officer’s] knowledge and of which [the officer] had reasonably trustworthy information were sufficient to warrant a prudent man in believing” that the person arrested committed the crime with which he was charged. Baldridge, 350 Ark. at 120-21, 85 S.W.3d at 515 (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). As this standard makes clear, there need not be actual probable cause for an officer to be shielded by qualified immunity, as an objectively reasonable belief that there was probable cause is 112enough. Id. Also, probable cause may be based on the collective knowledge of police officers, and therefore, need not rest solely upon the information of the officer who actually makes the arrest. Ray v. State, 304 Ark. 489, 803 S.W.2d 894 (1991).
Here, one of the charges lodged against Brooks was for driving on the wrong side of the road. Arkansas Code Annotated section 27-51-301(a) (Supp.2009) provides that, subject to certain exceptions not applicable here, a vehicle shall be driven upon the right half of the roadway. In his affidavit, Officer Ran-dle stated that the vehicle driven by Brooks crossed the center line of the road and collided with the front of Tamara’s black truck. By his own admission, Brooks stated in his deposition that he blocked the pathway of the black truck. The videotape also places Brooks’s vehicle on the left side of the roadway. Thus, the indisputable facts show that Brooks drove on the wrong side of the road in contravention of section 27-51-301(a). Therefore, probable cause existed for Officer Martin to arrest and charge Brooks with a violation of the statute. We need not decide whether there was probable cause for Brooks’s arrest on the other charges. Once probable cause exists for an arrest on one offense, it is immaterial whether there was probable cause for arrest on any other offenses. See Baldridge, supra. Because the undisputed facts demonstrate probable cause for Brooks’s arrest, Officer Martin was entitled as a matter of law to qualified immunity on the claims asserted by Brooks, and the trial court erred in failing to grant Officer Martin’s motion for summary judgment.
[ lsTurning to Sharon’s claims, she alleged that Officer Martin violated her rights under the Arkansas Civil Rights Act by employing excessive force against her. She also asserted a claim of battery. At the outset, we hasten to hold that Sharon’s battery claim survives the motion for summary judgment. The supreme court has consistently held that section 21-9-301 provides city employees with immunity from civil liability for negligent acts but not for intentional acts. See Romine, supra; Brt, supra; Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). Battery is an intentional tort. See Adams v. HLC Hotels, Inc., 328 Ark. 108, 941 S.W.2d 424 (1997). In oral argument, Martin’s counsel questioned the distinction that is made between intentional and negligent acts and argued that the legislature intended for city employees to be immune from claims involving intentional torts as well. Counsel acknowledged, however, that this argument was not raised below. As a rule, we do not address issues that are raised for the first time on appeal. Stanley v. Hogan, 2010 Ark. App. 107, 2010 WL 374386. Thus, we affirm the order of summary judgment on Sharon’s battery claim.
Proceeding to a discussion of Sharon’s civil-rights claim, the right to be free from excessive force is a clearly established right under the Fourth Amendment’s prohibition against unreasonable seizures of the person. Crumley v. City of St. Paul, 324 F.3d 1003 (8th Cir.2003). Thus, excessive-force claims are analyzed under the Fourth Amendment’s standard of reasonableness, which requires a careful balancing of the nature and quality of an intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The test is 114whether the amount of force used was objectively reasonable under the circumstances. Id. Further, as an objective inquiry, it is made without regard to the officer’s underlying intent or motivation. Samuelson v. City of New Ulm, 455 F.3d 871 (8th Cir.2006). The issue is judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight. Graham, swpra. This standard includes allowance for the fact that “officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary.” Id. at 396-97, 109 S.Ct. 1865. Therefore, not every push or shove violates the Fourth Amendment, even if such actions may later seem unnecessary in the peace of a judge’s chambers. Id. Circumstances such as the severity of the crime, whether the suspect posed a threat to the safety of the officers or others, and whether the suspect is resisting arrest are all relevant to the reasonableness of the officer’s conduct. Crumley, supra. Injuries that are attributable to a plaintiffs own actions do not demonstrate excessive use of force by police. Greiner, supra. And, if the complaining party’s injuries are likely explained by his or her own actions, the allegations cannot create an issue of material fact as to whether the officer used excessive force. Brandt v. Davis, 191 F.3d 887 (8th Cir.1999). Also, a de mini-mus use of force is insufficient to support the finding of a constitutional violation. Crumley, supra (holding that injury was considered de minimus where tight handcuffs caused bleeding); see also Wertish v. Krueger, 433 F.3d 1062 (8th Cir.2006) (holding that minor scrapes and bruises and a less-than-{permanentls aggravation of a bad shoulder were de minimus injuries); Greiner, supra (holding that severed tendon was a de minimus injury).
Viewing the facts in the light most favorable to Sharon, we accept as true the predicate facts that Officer Martin grabbed Sharon’s arms multiple times and that his actions left large bruises on her arms. The question we must decide is whether it was objectively reasonable for Officer Martin to restrain Sharon with that degree of force. Sharon acknowledged in her deposition that she attempted to forcibly remove the child from Tamara’s arms. Without question, the videotape also shows that Sharon continued grasping for the child and blocking Tamara’s exit and that she disobeyed the officers’ commands to refrain from that behavior. We believe that it was objectively reasonable for Officer Martin to employ some force to protect the child and to diffuse the volatile situation. While the evidence demonstrates that Sharon experienced some degree of physical injury in the form of bruising, her own struggles prompted Officer Martin to take action, and the evidence does not indicate the kind of harm that rises above the level of a de minimus injury. Sharon’s own actions and the fact that she sustained only a slight injury conclusively undermine her claim of excessive force. Accordingly, we hold that, as a matter of law, the facts do not support a claim of excessive force. While Sharon also contends that she suffered from depression, damages for this type of harm cannot be considered without first establishing that she was subjected to excessive force. In sum, we reverse the trial court’s refusal to grant the motion for summary judgment on this claim.
11fiAffirmed in part; reversed in part.
PITTMAN and BAKER, JJ., agree.
. The supreme court has identified one difference between the immunity granted under section 19-10-305 and that accorded under section 21-9-301. While the former includes an element of malice, the latter does not. Romine, supra.
. See Arkansas Code Annotated section 16-123-105(a) (Repl.2006). | [
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WAYMOND M. BROWN, Judge.
liAppellee Finova' Capital Corporation sued appellants All Creatures Animal Hospital and Marion Smith, D.V.M., alleging that the hospital had breached a lease of certain office equipment. The Garland County Circuit Court entered summary judgment in Finova’s favor. The hospital now appeals, raising five points for reversal. We affirm.
On March 31, 1994, the hospital entered into a written lease for office equipment manufactured by Recomm International Display Corporation (“Recomm”). Fino-va’s predecessor-in-interest provided financing for the transaction and was assigned Recomm’s rights in the transaction. In 1996, Recomm and its affiliated companies filed for Chapter 11 bankruptcy protection in United States Bankruptcy Court for the Middle District of Florida. |2The hospital was one of over 12,000 lessees of Recomm’s equipment. In March 1996, the bankruptcy court enjoined all lessors and lessees from pursuing claims against one another.
A debtor’s plan of reorganization was filed. The plan included a modification of the agreements between Finova and its lessees, which provided for several lease-payment options. The bankruptcy court entered an order confirming the reorganization plan on May 13, 1998. The confirmation order released Finova from all claims that otherwise may have been raised by the lessees in connection with the matters occurring prior to the June 80, 1998 effective date of the confirmation order.
On June 30,1998, Finova sent the hospital a letter, which advised it of the modifications to their lease agreement and presented them with options to pay the amount owed under the lease as modified. The hospital failed to select a payment option and was deemed to have selected “Option 4,” which obligated the hospital to pay the balance due over a period of time. On May 31, 2002, Finova filed suit in the Pulaski County Circuit Court, alleging that the hospital was in breach of the modified agreements and was, therefore, liable to Finova in the amount of $12,868.91.
The hospital filed a motion to dismiss based on improper venue in Pulaski County and the running of the statute of limitations. By agreed order, the case was transferred to Garland County Circuit Court. Thereafter, the hospital amended its motion to dismiss so as to withdraw the statute of limitations as a defense.
On October 26, 2006, Finova filed its motion for summary judgment against the Ishospital. Finova also filed the affidavit of Ellen Brandt, a portfolio manager, in which she set out the history of the transaction and Recomm’s bankruptcy. Brandt also averred that the hospital made nineteen payments prior to the bankruptcy filing, that the hospital had failed to make any payments under the modified lease, and that the hospital owed $12,868.91.
In response, the hospital contended that there were two issues of material fact: whether the hospital had received proper notice of the bankruptcy proceedings and the amount owed under the lease. Attached to the response was the affidavit of Marion Smith stating that the hospital had not received any of the notices of the bankruptcy case, that the payout history attached to Brandt’s affidavit was inaccurate, and that the hospital did not owe the amounts claimed in Brandt’s affidavits because some payments had been made. The affidavit of Paul Hogue was also submitted. Hogue stated that he could not, under any scenario, verify that Finova’s calculation of the amount due of $12,868.91 was accurate. He also said that Finova may have calculated interest on interest in determining the amount due, which he opined violated the Arkansas Constitution’s prohibition against usury. Finally, Hogue said that he had not had access to the raw data on which Finova’s calculations were based.
The motion for summary judgment was heard before Judge David Switzer in July 2008. The main issues argued were whether the hospital was bound by the bankruptcy court’s confirmation order and the amount owed by the hospital. The court ultimately denied the motion based on its finding that there was an unresolved legal issue — whether the hospital had been served with process in the bankruptcy case. The court reserved the right to revisit the issue 1 /‘if and when” the parties file supplemental motions and briefs on the issue. The court also indicated that, if the hospital was bound by the confirmation order, summary judgment would be granted for Finova.
Finova filed a “Supplemental and Additional Motion for Summary Judgment” on November 19, 2008. The motion was identical to the earlier motion. Copies of the earlier affidavits submitted by Ellen Brandt and Marion Smith were attached to the motion, as was a copy of the order denying the earlier motion. In its response to the supplemental motion, the hospital asserted that Finova had not addressed the inaccuracies in Brandt’s affidavit such as payments being posted to the account prior to Finova’s acceptance of the lease or the hospital’s claim that the lease was usurious.
The circuit court held a hearing on the supplemental motion for summary judgment on December 15, 2008. The hearing focused on the notice issue left unresolved from the prior hearing. The hospital argued that Ellen Brandt’s affidavit could not show that the hospital had been served because Brandt was not the party who mailed the notices from the bankruptcy court. The circuit court found that the hospital was bound by the confirmation order from the bankruptcy court and granted the motion for summary judgment. The court also found that the hospital’s usury defense had to be resolved before the bankruptcy court.
On January 9, 2009, the circuit court entered its written order granting summary judgment to Finova. The court found that Finova had resolved the legal issue that had been left 1 r,unresolved in the earlier hearing and was entitled to judgment as a matter of law. The court awarded Finova judgment of $12,868.91, together with attorney’s fees of $2,573.78. The court also awarded both pre- and postjudgment interest.
On January 20, 2009, the hospital filed a motion for reconsideration, asking the court to reconsider its decision on the usury issue. The hospital also asserted that the statute of limitations began to run when the bankruptcy court entered its order approving the reorganization plan and barred the action. The circuit court denied the motion for reconsideration by order entered on January 22, 2009. This appeal timely followed.
Summary judgment may be granted only when there are no genuine issues of material fact to be litigated. Greenlee v. J.B. Hunt Transp. Servs., 2009 Ark. 506, 342 S.W.3d 274. The moving party is then entitled to judgment as a matter of law. Id. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
For its first point, the hospital argues that the circuit court erred in granting summary judgment because Finova’s claim was barred by the statute of limitations. The hospital has | ^waived this issue by withdrawing the statute of limitations as a defense.
The statute of limitations is an affirmative defense that must be specifically pled to be considered by the circuit court. See State Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005). When the affirmative defenses listed in Ark. R. Civ. P. 8(c) are not pled, the circuit court errs in considering them. Id. The hospital filed its motion to dismiss and asserted that the statute of limitations barred the claim. However, the hospital later filed an amended motion to dismiss in which it withdrew the statute of limitations as one of its defenses. The ■withdrawal of the defense constituted abandonment of that defense.
The hospital’s second point concerns the propriety of summary judgment and the hospital’s defense of usury. In its argument, the hospital asserts that there were material issues of fact as to whether the lease was usurious.
The hospital failed to raise a genuine issue of material fact so as to preclude summary judgment. The hospital failed to offer any proof as to what the maximum rate of interest was either at the time of the contract or at the time of the bankruptcy court’s confirmation order. The burden is on the party claiming usury to prove it. Girley v. Wood, 258 Ark. 408, 525 S.W.2d 454 (1975); Davidson v. Commercial Credit Equip. Corp., 255 Ark. 127, 499 S.W.2d 68 (1973). Paul Hogue stated in his affidavit that the interest on the lease may have violated the Arkansas Constitution’s prohibition against usury by calculating interest on interest. Hogue also said he did not have access to the raw data on which Finova’s calculations were based. An affidavit that is equivocal or uncertain is insufficient to create an issue of material fact so as to |7preclude summary judgment. Brunt v. Food 4 Less, 318 Ark. 427, 885 S.W.2d 894 (1994). Moreover, the hospital did not attempt to obtain the underlying data so that Hogue could make a definitive calculation.
For its third point, the hospital argues that Finova’s supplemental and additional motion for summary judgment was barred by res judicata. Res judicata applies only where there has been a final judgment on the merits. Here, there had been no final judgment. Until the entry of a final judgment, the circuit court is free to revisit the issue of summary judgment. See Looney v. Looney, 336 Ark. 542, 986 S.W.2d 858 (1999) (setting out the elements of res judicata and holding that the application of res judicata to further proceedings in the same lawsuit is inappropriate). In this case, the court granted summary judgment after resolving the legal issue of whether the hospital had been properly served in the original bankruptcy case. In such circumstances, the second motion is not barred by res judicata. Head v. United States Fid. & Guar. Co., 247 Ark. 928, 448 S.W.2d 941 (1970); Clark v. Progressive Ins. Co., 64 Ark.App. 313, 984 S.W.2d 54 (1998).
The hospital’s fourth point is that the circuit court erred in granting summary judgment because there is an issue of material fact. However, the hospital does not identify what that issue might be. The alleged issue arose in 2006 when Finova’s counsel sent the circuit court a letter cancelling a scheduled hearing on the motion for summary judgment because the then-attorney for the hospital had created an issue of fact. The letter did not state what that issue was. Without knowing what the issue is, we cannot say the circuit court erred in granting summary judgment | Sbased on a finding that there were no issues of fact to be determined. The burden was on the hospital as the appellant to bring up a record sufficient to demonstrate that the circuit court was in error. Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999). The hospital has failed to meet its burden. Therefore, we have no choice but to affirm on this point.
Finally, the hospital argues that summary judgment was improper because Finova failed to comply with Ark. R. Civ. P. 56. The hospital first argues under this point that Finova never responded to its claim of usury. As the hospital points out in its argument, Rule 56 does not require the party seeking summary judgment to respond to the opposing party’s submission. Instead, Rule 56 requires the party opposing summary judgment to respond and demonstrate that material issues of fact remain. See Flentje v. First Nat’l Bank, 340 Ark. 563, 11 S.W.3d 531 (2000).
The hospital also argues that Finova submitted copies of the notices that were sent to the hospital, which were not file marked or otherwise certified, and argues that this did not comply with Rule 56. Rule 56(e) provides that sworn or certified copies of all papers referred to in affidavits shall be attached. Although the hospital raised this issue in its response to Finova’s supplemental motion, the issue raised at the hearing on the motion was somewhat different. The issue raised at the hearing was not that the documents were not sworn or certified; rather, the issue was that the affiant was not the person who actually mailed the documents to the hospital and was relying on the statements contained in the certificates of service. It is well settled that an appellant may not change the grounds for objection on appeal but is limited by the scope and ^nature of the objections and arguments made at trial. City of Benton v. Ark. Soil & Water Conservation Comm’n, 345 Ark. 249, 45 S.W.3d 805 (2001).
Affirmed.
HENRY and BAKER, JJ., agree.
. Because Smith pleaded no guarantor's defenses, we refer to the appellants, collectively, as the hospital.
. Judge David Switzer left the circuit-court bench on January 1, 2009, and was replaced by Judge Lynn Williams, who entered the order from which this appeal was taken. | [
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LARRY D. VAUGHT, Chief Judge.
| ¶ Appellant Perry Mack brings this appeal challenging the order of the Jefferson County Circuit Court granting appellee Union Pacific Railroad Company’s motion to dismiss Mack’s complaint with prejudice based on Arkansas Rule of Civil Procedure 41. Mack argues that the |2trial court erred in its interpretation and application of Rule 41. We affirm.
On July 9, 2008, Mack filed a complaint in the District Court of Harris County, Texas, against Union Pacific under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., alleging that he was injured by Union Pacific’s negligence while working in the course and scope of his employment. After Union Pacific filed a timely answer and the parties conducted discovery, Union Pacific filed a motion to dismiss for forum nonconveniens. Mack responded to Union Pacific’s motion. Thereafter, he filed his own motion to dismiss without prejudice. Mack’s motion to dismiss was granted by order of the Texas court.
On December 4, 2009, Mack refiled his cause against Union Pacific in Arkansas, in the Jefferson County Circuit Court. Union Pacific answered Mack’s complaint and also moved to dismiss it, alleging that Mack’s summons was defective because it stated that Union Pacific, a foreign corporation, had twenty days to answer the complaint instead of thirty. Union Pacific argued in its motion that it was entitled to a dismissal with prejudice, based on Rule 41(b) of the Arkansas Rules of Civil Procedure, due to Mack’s prior voluntary dismissal of the Texas case.
At the hearing on Union Pacific’s motion to dismiss, Mack argued that the two-dismissal rule of Rule 41 did not apply because the first dismissal in Texas was not taken unilaterally by Mack; rather, the dismissal was the result of a joint agreement between Mack and Union Pacific. IsMack contended that a strict or literal application of Rule 41 was not warranted. Union Pacific countered that Rule 41’s two-dismissal language applied because there was no evidence of a joint agreement between the parties; rather, all of the evidence in the record demonstrated that the Texas dismissal was voluntarily requested and obtained by Mack.
At the conclusion of the hearing, the trial court found that Mack’s summons was defective and that dismissal of Mack’s complaint was appropriate under Arkansas Rule of Civil Procedure 4(i) because a corrected summons was not timely served. Despite the language in Rule 4(i) that a dismissal be without prejudice, the trial court dismissed Mack’s complaint with prejudice. The trial court appears to have relied on Rule 41(a) to dismiss with prejudice:
The rule is plain. It says, a voluntary dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, which is the case ... unless all parties agree by written stipulation that such dismissal is without prejudice. In this case there is no written stipulation that [this case is] dismissed without prejudice. So, with the plain reading of Rule 41 ... the Court has no choice but to order that [this case is] dismissed with prejudice. And that will be the order of the Court.
An order was entered on March 15, 2011, stating that for “all of the reasons stated by the court on the record at the hearing, this case is hereby dismissed with prejudice.” A week later, on March 22, 2011, the trial court entered a second order that stated “[a]fter reviewing the pleadings and upon the argument of counsel, this Court finds that Union Pacific’s Motion to Dismiss is well-founded and hereby grants the motion and dismisses the Complaint with prejudice.” ^Because the trial court’s second order granted Union Pacific’s motion to dismiss, it appears to have relied on Rule 41(b), not Rule 41(a), for its dismissal with prejudice. Mack timely appealed.
Mack argues on appeal that the trial court erred whether it relied on either subsection (a) or (b) of Arkansas Rule of Civil Procedure 41 in dismissing his Arkansas complaint against Union Pacific with prejudice. In Jonesboro Healthcare Center, LLC v. Eatan-Moery Environmental Services, Inc., 2011 Ark. 501, 385 S.W.3d 797, our supreme court was recently presented with the question of whether, under Rule 41, the trial court’s dismissal, without prejudice, of a complaint for improper service was error where there had been a prior dismissal of the cause for lack of subject-matter jurisdiction. The court noted that generally, a Rule 41(b) dismissal is reviewed under the abuse of discretion standard. Jonesboro Healthcare, 2011 Ark. 501, at 3, 385 S.W.3d at 799 (citing Wolford v. St. Paul Fire & Marine Ins. Co., 331 Ark. 426, 435, 961 S.W.2d 743, 748 (1998)). However, the supreme court held that because it was construing a court rule, the appropriate appellate review was de novo. Id., 385 S.W.3d at 799 (citing Kesai v. Almand, 2011 Ark. 207, 382 S.W.3d 669). Accordingly, our review of the instant case is de novo.
When we construe a court rule, we use the same means and canons of construction that we use to interpret statutes. Jonesboro Healthcare, 2011 Ark. 501, at 3, 385 S.W.3d at 799. In considering the meaning and effect of a statute or rule, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id., 385 S.W.3d at 799. The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the drafting body. Id., 385 S.W.3d at 799. In ascertaining the drafter’s intent, we often examine the history of the statute or rule involved, as well as the | ¡^contemporaneous conditions at the time of their enactment, the consequences of interpretation, and all other matters of common knowledge within the court’s jurisdiction. Id. at 3-4, 385 S.W.3d at 799.
Mack first argues that the trial court erred in dismissing his complaint with prejudice based on Rule 41(a). Subsection (a) of Rule 41 provides that a voluntary dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed an action based on or including the same claim — unless all parties agree by written stipulation that such dismissal is without prejudice. Ark. R. Civ. P. 41(a)(2). Mack contends that the trial court’s dismissal with prejudice based on Rule 41(a) was error because he did not unilaterally voluntarily dismiss his action in Texas. Rather, he posits that the Texas case was dismissed upon agreement by the parties; therefore, the written-stip ulation exception contained in Rule 41(a) should have been applied.
To the extent the trial court relied on subsection (a) of Rule 41 to dismiss Mack’s complaint with prejudice, such reliance was error — but not for the reasons asserted by Mack. We hold that Rule 41(a) is inapplicable to this case because subsection (a) requires that both dismissals be made on the motion of the plaintiff. Ark. R. Civ. P. 41(a). It has been held that where one of two dismissals is on the motion of the defendant and not the plaintiff, Rule 41(a) is not applicable. Carton v. Missouri Pac. R.R. Co., 295 Ark. 126, 128, 747 S.W.2d 93, 94 (1988).
In the case at bar, the second dismissal was not on Mack’s motion. The record establishes that Mack did not file a motion for nonsuit in the Arkansas case. No order of nonsuit was entered by the trial court. A nonsuit is not effective upon filing; a court order is necessary to |figrant a nonsuit and the judgment or decree must be entered to be effective. Blaylock v. Shearson Lehman Bros., 330 Ark. 620, 624, 954 S.W.2d 939, 941 (1997); Ark. R. Civ. P. 41(a)(1). Union Pacific requested the dismissal based on Mack’s defective summons and his failure to timely serve a corrected summons. The trial court orally granted Union Pacific’s motion to dismiss on these grounds, and the trial court’s second order expressly stated that it was granting Union Pacific’s motion to dismiss. Because one of the two dismissals at issue in this case was on the motion of Union Pacific, neither Rule 41(a) nor the written-stipulation exception found in Rule 41(a) apply.
While Rule 41(a) does not apply to the case at bar, we hold that Rule 41(b) is applicable. Subsection (b) provides that an involuntary dismissal, where “there has been a failure of the plaintiff to comply with these rules” (the Arkansas Rules of Civil Procedure), is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits. Ark. R. Civ. P. 41(b). The trial court’s grant of Union Pacific’s motion to dismiss was an involuntary dismissal under Rule 41(b) due to Mack’s failure to comply with Rule 4(i). Construing Rule 41(b) just as it reads, giving the words their ordinary and usually accepted meaning in common language, the involuntary dismissal is with prejudice because this case had been previously non-suited by Mack in Texas. Arkansas case law supports our interpretation. Trusclair v. McGowan Working Partners, 2009 Ark. 203, 306 S.W.3d 428 (holding that, pursuant to Ride 41(b), the involuntary dismissal of the appellant’s complaint based on a defective summons that misstated the proper time in which to respond and the failure to timely serve a corrected summons should have been with prejudice where the appellant had previously voluntarily |7dismissed the same case); Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003) (same); Bakker v. Ralston, 326 Ark. 575, 578-79, 932 S.W.2d 325, 327 (1996) (stating that “[ajppellees’ failure to [timely] serve [a]ppellant was a failure to comply with Rule 4(i), or ‘a failure of the plaintiff to comply with these rules’ as provided in Rule 41(b); such a failure resulted an involuntary dismissal pursuant to Rule 41(b). Because these cases had previously been dismissed, Rule 41(b) requires that the second dismissals operate as adjudications on the merits”).
The facts in the instant case are very similar to those in Trusclair, Sidney Moncrief, and Bakker. Mack, like the plaintiffs in those three cases, nonsuited his first case, then refiled his second case. His second case was involuntarily dismissed because he failed to timely effectu ate service with a proper summons. Like the supreme court in Trusclair, Sidney Moncrief, and Batcher, we rely on Rule 41(b) and hold that the second dismissal operated as an adjudication on the merits because of Mack’s prior nonsuit. Therefore, pursuant to Rule 41(b), we affirm the trial court’s dismissal with prejudice of Mack’s second complaint against Union Pacific.
Mack urges us to not apply Rule 41(b) based on his argument that the Texas case was not dismissed voluntarily or involuntarily. He argues that the Texas case was dismissed at the request of and as a favor to Union Pacific and that the dismissal was a joint agreement between the parties that operated as a stipulated dismissal. In support of his argument, Mack relies on Smith v. Washington, 340 Ark. 460, 10 S.W.3d 877 (2000). In Smith, the plaintiffs first complaint in federal court was dismissed after a joint stipulation of dismissal without prejudice was executed by the parties pursuant to Federal Rule of Civil Procedure 41(a)(1), and an order was entered in federal court dismissing the plaintiffs claim without prejudice. Smith, 340 Ark. at 462, 10 S.W.3d at 879. The plaintiff filed a second complaint in state court but voluntarily nonsuited it. Id., 10 S.W.3d at 879. After the plaintiff filed a third complaint against the defendant mirroring the second complaint, the defendant moved to dismiss the cause with prejudice based on Rule 41(a). The trial court agreed and granted the motion to dismiss with prejudice. Id., 10 S.W.3d at 879.
On appeal, the plaintiff argued that the joint stipulation entered into by the parties in the federal case did not constitute a voluntary dismissal for purposes of the two-dismissal rule of Rule 41(a)(2). Id., 10 S.W.3d at 879. Our supreme court agreed, holding that the joint stipulation demonstrated that the plaintiff did not unilaterally dismiss her action. Rather, the dismissal was by agreement by the parties. The supreme court further held that where a defendant acted in combination with the plaintiff in obtaining a joint dismissal by stipulation of a claim, and received benefit from that action, that defendant could not assert that the plaintiff should be barred as a result of the stipulated dismissal from filing a later claim. Smith, 340 Ark. at 466, 10 S.W.3d at 881. Therefore, the supreme court held that the dismissal by stipulation entered into by the parties to conclude the federal action was not a voluntary dismissal by the plaintiff under Rule 41(a)(2), and that the second filing of her state-law claims was not barred by the two-dismissal rule of Rule 41(a). Id., 10 S.W.3d at 881.
Smith has no application to the case at bar. First, Smith was decided in the context of the written-stipulation exception found in Rule 41(a). As set forth above, Rule 41(a) does not apply in this case because that subsection requires two voluntary dismissals on the motions of the plaintiff. Here, one of the dismissals was involuntary. Second, unlike Rule 41(a), Rule 41(b) has no written-stipulation exception; therefore, the Smith analysis has no relevance in this context. And third, assuming arguendo that the Smith analysis applies to Rule 41(b), unlike the facts in | Smith, where there was a joint stipulation signed by both parties and filed with the court, there is an absence of evidence in the record supporting Mack’s argument that the dismissal in Texas was anything other than his unilateral voluntary dismissal. The pleadings demonstrate that Mack alone moved for a voluntary dismissal of his Texas case. The order of dismissal in the Texas case stated that the dismissal was based on Mack’s motion. There is an absence of pleadings in the record establishing a joint agreement between Mack and Union Pacific to dismiss the Texas case. The only evidence Mack points to for support of a joint agreement is an affidavit submitted by his attorney that on its face establishes that Mack voluntarily dismissed his Texas case to avoid having it involuntarily dismissed on Union Pacific’s motion. For all of these reasons, Mack’s reliance on Smith v. Washington is misplaced.
Therefore, we hold that the trial court did not err in dismissing Mack’s complaint with prejudice under Rule 41(b) of the Arkansas Rules of Civil Procedure. Accordingly, we affirm.
Affirmed.
ABRAMSON and HOOFMAN, JJ., agree.
. Arkansas Rule of Civil Procedure 41 provides:
(a) Voluntary Dismissal; Effect Thereof.
(1) Subject to the provisions of Rule 23(e) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.
(2) A voluntary dismissal under paragraph (1) operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice.
(b) Involuntary Dismissal. In any case in which there has been a failure of the plaintiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court’s docket. A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.
Ark. R. Civ. P. 41(a), (b).
. Rule 4(i) provides: “Time Limit for Service. If service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court's initiative.” Ark. R. Civ. P. 4(i).
. Mack does not challenge either of these findings on appeal. | [
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ROBIN F. WYNNE, Judge.
|, Gerald Stockstill appeals from the Lo-noke County Circuit Court order that terminated his parental rights to his son D.S.2, who was then nine years old. He argues on appeal that the circuit court erred in finding that his-son was adoptable, that his son would be subject to potential harm if placed in his custody, and that the “subsequent factors” ground for termination had been proved by clear and convincing evidence. We find no clear error and affirm.
The Arkansas Department of Human Services (DHS) removed D.S.2 and his two younger siblings from their mother’s custody in May 2012. In the probable-cause order, appellant was ordered to submit to paternity testing as to D.S.l and D.S.2. In the | ¡.adjudication order, the court found (and the mother stipulated) that the children were dependent-neglected due to inadequate supervision and environmental neglect. The goal of the case was set as reunification.
At a review hearing on September 25, 2012, the results of paternity testing were introduced into evidence and appellant was found to be the father of D.S.2. The court ordered that appellant would not have any visitation with D.S.2 until he completed parenting classes, and “then the court will entertain an agreed order as to his visits.” The court noted that appellant had started parenting classes.
The review order entered following a December 18, 2012 hearing makes no men tion of appellant other than to include a drug screen as one in a list of items received into evidence, and he was apparently not present for that hearing. Appellant was present for the February Í2, 2013 review hearing, and at that time, a certificate of completion for appellant’s parenting classes was entered into evidence. The court found that he had completed parenting classes and submitted to random drug screens and home visits, The court stated that his visits were to be addressed at the next hearing. At the next hearing on April 16, 2018, appellant was granted supervised visits once a week for one hour. The court stated in its order, “Any outburst and the visits shall cease immediately.”
The next hearing was the permanency-planning hearing on April 30, 20Í3. At that time, the mother testified that she wished to voluntarily relinquish her parental rights, and the court changed the goal of the case to adoption. As to appellant, the court made the following findings: he had completed parenting Classes, had submitted to and had negative drug screens and had visitation with D.S.2; appellant did not have a home of his own arid 18only had part-time employment. The court apparently increased his visitation to supervised visits twice a week for an hour and a half per session.
On June 3, 2013, DHS and the attorney ad litem filed a joint petition for termination of parental rigjits. As to appellant, the petition alleged that under the “subsequent factors” statutory ground he had been established to be the legal father of D.S.2, did not have appropriate housing or sufficient income to care for his child, and had not appropriately addressed his anger issues. At the termination hearing on October 22, 2013, Lakisha Tatum testified that she had been the Lonoke County DHS family-service worker assigned to this case since it was opened in May 2012. She- testified that appellant came to the probable-cause hearing in May 2012 and to the initial staffing. There was a period of time when DHS lost contact with appellant for a couple of months. Under the case plan, he was to obtain and maintain employment and maintain stable housing. During this case, appellant went through periods of unemployment, then worked part-time at Hardee’s before obtaining his current job at Southern Tire Service. As for housing, he was living with roommates at the time of the hearing, and Tatum testified that she did not believe it would be suitable for a child. She acknowledged that appellant had submitted to drug screens and that drugs had not been an issue in the case; she also testified that he had completed parenting classes. She | testified that appellant did not currently have transportation and that he had missed several visits, some before and some after he had gotten his new job. Tatum testified that appellant had anger and animosity toward everyone involved in the case, which caused a barrier to working with DHS and making progress. She stated that D.S.2 already had some anger and aggression issues and it was important for him to have a controlled, calm environment. Tatum testified that she did not feel that appellant was a fit parent at this time and that D.S.2 should not have to wait any longer for permanency. Under cross-examination by appellant’s attorney, Tatum testified that the only anger issue referenced in the court reports was the same incident in the April 4, 2018 staffing; appellant had been offered no services to address anger issues. Tatum testified that she had not personally been to appellant’s residence, but the issue she had with it was that there was not a separate bedroom for D.S.2. She testified that she was relying on the secondary case worker for information regarding the home and the missed visits. Tatum testified on recross by the attorney ad litem that the reason it took so long for visitation to begin after the DNA results had been obtained in July 2012 was appellant’s failure to attend hearings and failure to actively participate in the case.
Appellant testified that he had lived in a house in Judsonia with the homeowner since June 2011 under a verbal lease. He testified that he rented a room and that there was currently another bedroom available. Appellant stated that he had been unable to afford a residence of his own previously, but his new job would allow him to obtain his own residence after the first of the year. Regarding his participation in the case, he explained that he had missed the hearings in June, July, September, and December 2012 because of transportation issues and work conflicts; furthermore, he believed at that time that the | ¡¡mother would be getting the children back. He testified that he began truck-driving school in July and currently made good money as a transfer truck driver, working from 6:00 a.m. to 4:00-5:00 p.m. Monday through Friday. He testified to the close relationship between the siblings and the reasons why he had not seen his son since 2009 or established paternity before it was established in this case.
Lisa Martin, a White County family-service worker, testified that she was the secondary case worker assigned to appellant in December 2012. She testified that the house appellant lived in was a two-bedroom, with the owner occupying one bedroom and appellant sleeping on the couch; the second bedroom had recently become available because the owner’s daughter had gone to jail. The only issue Martin had with the home was with cigarette smoke; it was otherwise appropriate. She testified that appellant planned to move to his own home before the homeowner’s daughter moved back to the house. She testified that no background check had been performed on the homeowner/roommate because she had not received a request for one, but it was not appellant’s responsibility to get a background check. She testified that appellant had missed a couple of visits the past summer because he overslept, and he missed other visits because he had just started a new job and could not take time off. Regarding any anger issues, Martin testified that she had heard appellant vent frustration but he had never demonstrated anger, even verbal anger. She testified that appellant had obtained his CDL or “certified licensed driver” status; she believed he had sufficient income to rent a home for himself and D.S.2 in Judsonia. She testified that appellant was not deficient in any of the four items in the case plan — drug screens, stable housing and employment, and parenting classes.
[(¡An adoption specialist testified that all three siblings were currently placed together in a foster home and that a search revealed ten families that were available to adopt a sibling group of three. There were no apparent factors that would prohibit adoption.
In the termination order entered December 3, 2013, the circuit court made the following findings:
The Department has proven by clear and convincing evidence the following grounds:
c.As to Gerald Stockstill, under Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juveniles to the custody of the parent is contrary to the juveniles’ health, safety, or welfare and that despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juveniles to the custody of the parent. Subsequent to the filing of the original petition, Gerald Stockstill was established to be the legal father of [D.S.2], Gerald does not have appropriate housing or sufficient income to care for [D.S.2]. He also has not appropriately addressed his anger issues.
8.The Court specifically finds:
a. The children have been out of the home of their parents for eighteen (18) months.
b. This ease started in May of 2012, yet Gerald Stockstill did not get actively involved in this case until February of 2013.
c. Mr. Stockstill does not have stable housing.
d. Mr. Stockstill missed visits with [D.S.2] because he slept late.
e. There were two DHS caseworkers trying to help Mr. Stockstill.
They consistently visited the home and gave advice on corrections that were needed to make the home appropriate for [D.S.2]. Mr. Stockstill failed to heed the advice given and 18 months into this case still does not have stable and appropriate housing for [D.S.2].
f.The Court finds that Gerald Stockstill could have gone out last week and rented a place appropriate for his child, but did not do it and as of the date of this termination hearing, does not have a suitable home for his child.
9. In making this determination to grant the petition for termination of parental rights in this case, the Court has considered the potential harm, specifically addressing the effect on the health and safety of the juveniles caused by returning the juveniles to the custody of their parents. The Court finds that return of the juveniles |7to the custody of the parents could harm the juveniles’ health and safety because the parents are not appropriate to care for the juveniles. The parents do not have an appropriate lifestyle. The parents are not a fit and proper parent for the juveniles. It is in the best interests of the children that parental rights be terminated.
10. [D.S.2, D.S.l, and A.H.] are adoptable and are very likely to be adopted.
It is from this order that appellant appealed.
Our standard of -review in termination-of-parental-rights cases is well settled. When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Osborne v. Ark. Dep’t of Human Servs., 98 Ark. App. 129, 252 S.W.3d 138 (2007). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Id. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. Pursuant to Ark. Code Ann. § 9-27-341(b)(3), the facts warranting termination of parental rights must be proved by clear and convincing evidence. Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Id. When the burden of proving a disputed fact in equity is by clear and convincing evidence, the question that we must answer on appeal is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. We must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations. Id.
| ^Termination of a parent’s rights must be based on clear and convincing evidence that it is in the best interest of the children, considering the likelihood that the children will be adopted if the parent’s rights are terminated and the potential harm caused by returning the children to the custody of the parent. Weatherspoon v. Ark. Dep’t of Human Servs., 2013 Ark. App. 104, 426 S.W.3d 520; Ark.Code Ann. § 9-27-341(b)(3)(A). The court must also find one of the grounds outlined in Arkansas Code Annotated section 9-27-341(b)(3)(B). In this appeal, appellant challenges the trial court’s finding of best interest, both as to D.S.2’s adoptability and as to the potential harm of placing him in appellant’s custody, and also argues that DHS failed to prove the “subsequent factors” statutory ground by clear and convincing evidence.
Regarding adoptability, appellant points out that the adoption specialist did not indicate whether she had input data regarding the characteristics of these particular children when she ran her search, and that the case worker testified that the children “will be adoptable” with “counseling for a long period of time.” This court has held that adoptability is but one factor that is considered when making a best-interest determination and that no factor must be established by clear and convincing evidence; rather, after consideration of all factors, the evidence must be clear and convincing that termination is in the best interest of the children. Smith v. Ark. Dep’t of Human Servs., 2013 Ark. App. 753, at 5, 431 S.W.3d 364, 367-68 (citing Renfro v. Ark. Dep’t of Human Servs., 2011 Ark. App. 419, at 6, 385 S.W.3d 285, 288). Here, DHS presented evidence from a case worker, an adoption specialist, and the CASA volunteer that the children were adoptable, and appellant has not demonstrated any error on this point.
| ^Appellant also challenges the court’s finding that D.S.2 would be subject to potential harm if placed in his custody. Essentially, he points out the ways that he complied with the case plan and the fact that he and his son had a bond. He also finds fault with DHS’s handling of his case. However, given appellant’s uncertain housing situation, missed visitation, and failure to participate in the early part of the case, we cannot say that the trial court clearly erred in finding that D.S.2 would be subject to potential harm if placed in appellant’s custody.
Finally, appellant argues that DHS failed to meet its burden of proving the “subsequent factors” statutory ground. He contends that he was “lumped in” with the other parents in the termination order as being unfit, but he acknowledges that the primary case worker had provided such testimony. Regarding the services offered to him, appellant contends that DHS failed to communicate with him about the case, he was not appointed counsel until late in the case, the quality of the documentation by the primary case worker in the court reports was poor, and there were services that he could have been offered but was not. He takes particular issue with the court’s findings regaining his housing, income, and failhre tp address his anger issues. We might be inclined to agree with certain narrow points appellant raises. For example, despite maintaining that appellant had “anger issues” based on the staffing incident in April 2013, DHS apparently never offered appropriate services to address those issues, such as anger-management classes. However, prior to the termination hearing, appellant did not attempt to challenge multiple findings by the circuit |incourt that DHS had offered appropriate family services. His failure to challenge those findings precludes us from now reviewing them on appeal. Fredrick v. Dep’t of Human Servs., 2010 Ark. App. 104, at 11, 377 S.W.3d 306, 312.
We find no clear error, and we affirm the termination of appellant’s parental rights.
Affirmed.
HIXSON and BROWN, JJ„ agree.
. Initially, appellant was named the putative father of both D.S.l (born in 2006) and D.S.2 (born in 2005), but paternity testing revealed that he is the father only of D.S.2.
. Handwritten portions of the order arp illegible.
. Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) (Siipp.2013) provides:
That other factors or issues arose subsequent to the filing Of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent.
. He seems to argue that the secondary case worker should have been found more credible. | [
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LARRY D. VAUGHT, Chief Judge.
| TAppellant Royce Pace appeals the order of the Lawrence County Circuit Court granting summary judgment in favor of appellee Dean Davis. The trial court dismissed Royce’s claims for negligent en-trustment, negligence, and punitive damages. On appeal, Royce argues that the trial court erred in granting summary judgment because there were genuine issues of material fact on those claims. We affirm.
The complaint filed by Royce on January 21, 2009, tells the story of a love triangle among Royce, his ex-girlfriend Ki-ala Downing, and Kiala’s fiancé Michael Davis (Dean Davis’s son). According to Royce’s complaint, on January 2, 2009, while Kiala and Michael were engaged, Royce and Kiala engaged in consensual sex. On January 8, 2009, Royce received text messages and phone calls from Michael asking Royce to meet to talk. Later that evening, Royce reluctantly agreed to meet Michael at a boat landing on the Spring River. |2When Royce arrived, Michael was standing outside of his truck. Royce pulled up next to Michael and rolled down his driver’s side window. Michael then threw a bottle inside Royce’s vehicle and began striking Royce in the face, breaking his nose and lacerating his face. As Royce drove away, Michael went to his vehicle, retrieved a nine-millimeter handgun, and fired two shots at Royce. One of the bullets struck Royce behind his right ear. Royce sought medical treatment immediately, and Michael was apprehended by law enforcement soon thereafter.
Royce’s complaint alleged causes of action against Michael and Kiala for assault and battery and sought punitive damages. Royce filed an amended complaint on August 4, 2009, adding Dean as a defendant. Against Dean, Royce asserted negligence and negligent-entrustment causes of action for giving Michael the gun he used to shoot Royce. On June 17, 2010, Royce filed a second amended complaint against Michael and Dean, alleging negligence against Michael, negligence and negligent entrustment against Dean, and punitive damages against both.
In September 2010, Dean filed a motion for summary judgment. Dean admitted that approximately six months prior to the shooting, he gave a gun to his son for protection ^because Michael had voiced some concern about his safety at the apartment he lived in at college. However, Dean argued that there were no facts supporting the allegation that Michael was incompetent, inexperienced, or reckless or that Dean knew or should have known that his son was incompetent, inexperienced, or reckless; therefore, he owed no duty to Royce as a matter of law. Dean also argued that Royce’s punitive-damages claim should be dismissed as a matter of law because it could not be supported by a negligence cause of action. Following a hearing, the trial court granted Dean’s motion for summary judgment stating, “the issue here is whether there is proximate cause.” On May 19, 2011, an order was entered by the trial court dismissing Royce’s claims against Dean with prejudice. It is from this order that Royce appeals.
Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Collins v. Morgan, 92 Ark.App. 95, 101, 211 S.W.3d 14, 19 (2005). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Id,., 211 S.W.3d at 19. We no longer refer to summary judgment as a “drastic” remedy and now simply regard it as one of the tools in a trial court’s efficiency arsenal. Id., 211 S.W.3d at 19. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id., 211 S.W.3d at 19-20. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. at 101-02, 211 S.W.3d at 19-20. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. at 102, 211 S.W.3d at 20.
Royce first argues that the trial court erred in granting Dean’s motion for summary judgment on his negligent-entrustment claim. He argues that the evidence shows that Michael was an “underage,” “immature,” “troubled young man” with “a history of violence” with his fiancée; drug-abuse problems; and “a history of psychiatric illness,” including “counseling for depression and anxiety.” Royce further argues that Dean knew or should have known of his son’s problems; therefore, Dean was negligent when he gave Michael a gun and told him to use it for protection.
There are no cases in Arkansas addressing the issue of negligent entrustment of a firearm. However, on many occasions our courts have considered the negligent en-trustment of an automobile. In this context, we have held that the elements of negligent entrustment are (1) the entrus-tee was incompetent, inexperienced, or reckless; (2) the entrustor knew or had reason to know of the entrustee’s conditions or proclivities; (3) there was an en-trustment of the chattel; (4) the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the defendant; and (5) the harm to the plaintiff was proximately or legally caused by the negligence of the defendant. Mills v. Crone, 63 Ark.App. 45, 49, 973 S.W.2d 828, 831 (1998).
No duty arises on the part of the entrustor in the absence of facts supporting the incompetence, inexperience, or recklessness of the entrustee and the en-trustor’s knowledge |5of the incompetence, inexperience, or recklessness. The first element of negligent entrustment must be established first and, “[a]bsent evidence of the [entrustee’s] incompetence as a driver before the accident, there could be no basis for a trial court’s finding that factual discrepancies existed regarding allegations” of negligent entrustment. Ponder v. Gorman, 94 Ark.App. 159, 162, 227 S.W.3d 428, 430 (2006). Proof of the en-trustee’s incompetence or recklessness may be made by introducing evidence of his general reputation or evidence of specific acts. Ark.-La. Lumber Co. v. Causey, 228 Ark. 1130, 1133, 312 S.W.2d 909, 911 (1958); see also Henry Woods, Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional Liability, 20 Ark. L.Rev. 101 (1966).
The significance placed upon the first element of a negligent-entrustment case was demonstrated in Ponder v. Gorman. There, the appellant was injured in a motor-vehicle accident caused by the appel-lee’s son, who was driving a vehicle given to him by the appellee. Appellant’s negligent-entrustment claim was based upon evidence that the appellee’s son failed to maintain a regular work schedule and had smoked marijuana, which the appellee knew about. In affirming the summary judgment entered by the trial court, our court held that the appellant failed to present evidence of incompetence. Id. at 162, 227 S.W.3d at 430. The evidence demonstrated that at the time of the accident, appellee’s son was eighteen years old and held a valid Arkansas driver’s license; he had never received a traffic citation; he had never been involved in a motor-vehicle accident; he had never been arrested; he did not receive a traffic citation for the accident with appellant; and there was no evidence that he was under the influence of alcohol or other drugs at the time of the accident. Ponder, 94 Ark.App. at 163, 227 S.W.3d at 430. “[W]e cannot deem [appellee’s] son’s failure to maintain a regular work schedule as evidence that appel-lee’s son was in the habit of driving under the influence of marijuana. Nor can we find that appellee’s knowledge of his son’s use of marijuana was evidence that his son habitually operated a vehicle under the influence of the substance.” Id. at 162-63, 227 S.W.3d at 430.
When analyzing Royce’s allegations of negligent entrustment of a firearm to the above-stated principles of negligent en-trustment, we must affirm the trial court’s grant of summary judgment. As a matter of law based on the record before us, Royce failed to create a fact question on the issue of whether Michael was incompetent, inexperienced, or reckless with firearms. Significantly, the record is completely devoid of evidence of specific acts demonstrating that Michael, prior to the incident in question, behaved in an incompetent, inexperienced, or reckless manner with a firearm. As such, Royce has been forced to focus on proving the first ele ment of negligent entrustment by presenting evidence of Michael’s general reputation of incompetence, inexperience, or recklessness. Royce has failed to do this.
|7The evidence is undisputed that Michael was not a minor or “underage” when Dean gave him the gun or when the shooting occurred. Michael was nineteen. The evidence is also undisputed that Michael had “grown up with guns” and had been a hunter all his life. Michael was a properly licensed hunter and had completed a hunter’s-safety course. Thus, while Michael had no experience with the particular gun he used to shoot Royce, Michael was not a novice or inexperienced with firearms.
Further, there is no evidence in the record that at any time prior to the shooting in this case Michael behaved recklessly. The evidence presented was that prior to this incident, Michael had no criminal history and had never been arrested. There was no evidence that Michael had been in trouble at school or involved in any physical altercations. Royce testified that Michael had never been violent with him prior to the incident. While Royce argues that Michael had a “history of violence with Kiala,” Kiala’s only testimony on this point showed that on one occasion Michael slapped her books out of her hands after she pushed him when she tried to leave his house.
Lastly, there is no evidence of incompetence. The record is devoid of evidence that at the time of the shooting Michael was under the influence of drugs or alcohol. Ponder, 94 Ark.App. at 163, 227 S.W.3d at 430; Fleming, 656 F.Supp.2d at 773. Royce contends that Michael had a history “of psychiatric illness.” The record reflects that in 2007 (more than a year prior to the shooting), after Michael left home for college, he was prescribed medication for depression and/or anxiety. There is no evidence that Michael received any counseling prior to the shooting. Royce also argues that Michael abused steroids. However, there was |8no evidence that Michael had steroids in his system at the time of the shooting or that steroids rendered him incompetent in any way on the date of the shooting. Ponder, 94 Ark.App. at 162-63, 227 S.W.3d at 430. On this record, Royce has failed to present a fact question on the first element of a negligent-entrustment claim.
Assuming arguendo that Royce did present proof of Michael’s incompetence, inexperience, or recklessness, he failed to present proof that Dean knew or should have known of Michael’s proclivities. The evidence demonstrates that Michael possessed the gun for approximately six months prior to the incident giving rise to this lawsuit. During that time, there is no evidence that Michael used the gun in an inexperienced, incompetent, or reckless manner. The evidence was in fact undisputed that Michael had never used the handgun prior to the incident involving Royce. Dean testified that Michael was an experienced and responsible hunter, and there is no evidence to the contrary. There is no evidence that Michael told Dean, or anyone else, that he was planning on using the gun to shoot Royce. Additionally, Dean and Michael both testified that Dean did not know about Michael’s steroid use until after the shooting. Prior to that time, Michael denied steroid use to his parents. Finally, on the evening of the shooting, the evidence showed that Dean had |9dinner with Michael and Kiala, and Michael was fine. There was simply no evidence presented that Dean knew or should have known of Michael’s alleged incompetent, inexperienced, or reckless proclivities.
Based on the evidence presented, we conclude that, as a matter of law, Royce failed to establish the first and second elements of negligent entrustment. Courts in other jurisdictions that have addressed negligent entrustment of a firearm support our holding. In Fly v. Cannon, 813 S.W.2d 458 (Tenn.Ct.App.1991), summary judgment was affirmed in a negligent-entrustment claim in favor of a grandmother who had given her eighteen-year-old grandson a gun that he used to shoot his cousin, who the grandson thought was an intruder. The record was void of evidence indicating that the grandson had ever been irresponsible in the use of any of his firearms prior to the incident or that the grandmother had knowledge of any irresponsible conduct on the part of her grandson in connection with the gun in question or any of the other guns that he owned. Fly, 813 S.W.2d at 461. Evidence that the grandmother had concerns that her grandson was sometimes belligerent and hostile and that she was worried that she had lost control of him in no way gave the grandmother knowledge that her grandson might act irresponsibly with his firearms. Id.
Likewise, in McBrayer v. Dickerson, 192 Ga.App. 725, 386 S.E.2d 173 (1989), summary judgment in a third-party claim for negligent entrustment of a firearm was upheld. In McBrayer, one fourteen year old gave a gun to another fourteen year old, and the latter accidentally shot a third party. The evidence was uncontroverted that the entrustee knew how to operate the pistol, and there was no evidence that the entrustee had ever been reckless with | infirearms, much less habitual in that vice. McBrayer, 386 S.E.2d at 173. Moreover, evidence that the entrustee was a below-average student and on some occasions had entertained himself by throwing rocks at cars did not demonstrate his incompetence or habitual recklessness with firearms. Id.
Finally, in Kennedy v. Baird, 682 S.W.2d 377 (Tex.App.1984), the trial court granted summary judgment in a negligent-entrustment case against a father who had given his twenty-year-old son a rifle, which the son used to shoot two victims. In affirming summary judgment, despite evidence that the son had pushed a fifteen-year-old boy down on one occasion and that the son had a reputation for having a violent temper, the Texas appellate court held that the plaintiffs failed to prove the father’s actual knowledge of his son’s propensity to commit the act complained of or to use the rifle dangerously. Kennedy, 682 S.W.2d at 379.
In sum, having concluded that Royce failed to satisfy the first and second elements of negligent entrustment, we hold that the trial court did not err in granting summary judgment on that cause of action.
Royce also argues that the trial court erred in granting summary judgment of his negligence claim. The essential elements of a cause of action for negli gence are that the plaintiff show a duty owed and a duty breached, and that the defendant’s negligence was approximate cause of the plaintiffs damages. Scott v. Cent. Ark. Nursing Ctrs., Inc., 101 Ark. App. 424, 434, 278 S.W.3d 587, 595 (2008). The issue of duty is always one for the trial court and not for the jury. D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 463, 986 S.W.2d 836, 840 (1999). If no duty of care is owed, summary judgment is appropriate. Holloway v. Stuttgart Reg’l Med. Ctr., 62 Ark.App. 140, 142, 970 S.W.2d 301, 302 (1998).
Royce contends that Arkansas courts have consistently held that third parties who negligently provide firearms to a person who thereafter uses the firearm to inflict injury are subject to suit for then-own independent acts of negligence. He relies on two cases, Franco v. Bunyard, 261 Ark. 144, 547 S.W.2d 91 (1977), and Cullum & Boren-McCain Mall, Inc. v. Peacock, 267 Ark. 479, 592 S.W.2d 442 (1980). These cases are distinguishable.
In Franco, the issue presented was whether a store negligently sold a firearm to an escaped convict who used the gun to murder two victims and wound a third. Franco, 261 Ark. at 145, 547 S.W.2d at 92. Summary judgment was entered in favor of the store, but reversed on appeal by our supreme court based on the argument that the store violated federal statutes and regulations relating to the sale of guns, which was evidence of negligence. Id. at 147-48, 547 S.W.2d at 92-93. Franco is inapplicable to the instant case as Royce has not alleged or developed the argument by citation to authority that Dean violated any state or federal statutes or regulations. We will not consider an issue if the appellant has failed to cite to any | ]2convincing legal authority in support of his argument. Walters v. Dobbins, 2010 Ark. 260, at 6-7, 370 S.W.3d 209, 213.
In Cullum, the appellee was shot by a man who purchased a gun from a store. The appellee (and his wife) alleged negligence on the part of the store, and a jury agreed, awarding the appellees damages. One of the points on appeal raised by the store was that the trial court erred in failing to direct a verdict on the appellees’ negligence claim. Cullum, 267 Ark. at 480, 592 S.W.2d at 443. Our supreme court affirmed on this point, holding that the evidence presented was sufficient to submit to the jury. The evidence on which the court relied was testimony that the purchaser said he wanted the gun to “blow a big hole in a man” and that the purchaser was acting suspiciously when he was making his purchase. Id. at 481-82, 592 S.W.2d at 444.
The facts in the case at bar are distinguishable from those in Cullum. Dean gave the gun to Michael six months before the shooting occurred. There is no evidence that Michael used the gun during that time. There is no evidence that Michael said anything to Dean (or anyone else) about using the gun to shoot Royce. Finally, Dean testified that he had dinner with Michael and Kiala the night of the shooting and that Michael acted normally. As a matter of law, the evidence in this case fails to establish that Dean owed a duty to Royce. Accordingly, we affirm the grant of summary judgment on the negligence claim.
11sRoyce’s final argument is that the trial court erred in granting summary judgment on his punitive-damages claim. Because we conclude that the trial court’s summary-judgment order on the issues of negligent entrustment and negligence should be affirmed, this third point appeal is moot.
Affirmed.
GRUBER and GLOVER, JJ., agree.
. Royce had a friend named Amanda Green accompany him, and Kiala was with Michael.
. Kiala answered Royce's complaint and filed a counterclaim against him for assault, battery, and the tort of outrage. However, her counterclaim against Royce and his complaint against her were both dismissed by separate orders entered by the trial court on March 25, 2010.
.On March 9, 2011, an order was entered by the trial court dismissing Royce's lawsuit against Michael with prejudice. The order reflects that Royce and Michael reached a settlement.
. See also Fleming v. Stifolter, 656 F.Supp.2d 764 (W.D.Tenn.2009) (applying Arkansas law) (granting summary judgment in negligent-en-trustment-of-a-jet-ski claim based on a lack of evidence of incompetence, inexperience, and recklessness where the evidence was that this was not the entrustee’s first occasion to use a jet ski; there was no evidence that the entrus-tee had not reached the age of majority; while the entrustee had not operated the type of jet ski involved in the accident, it could not be said that he was a novice who lacked the training and experience necessary to use it; there was no evidence that the entrustee was under the influence of any drugs or alcohol at the time of the accident; and there was no evidence that the entrustee had operated the jet ski in a reckless manner).
. If Dean had known of his son’s steroid use prior to the accident, such evidence in this case would not likely create a question of fact on the issue of Dean's knowledge of Michael’s incompetence. Ponder, 94 Ark.App. at 163, 227 S.W.3d at 430 (holding that the entrust- or's knowledge of the entrustee's use of marijuana was not evidence of incompetence, where there was no evidence that the entrus-tee was under the influence of alcohol or drugs at the time of the accident).
. We acknowledge that while the summary-judgment order offered no explanation for the dismissal of Royce's lawsuit, the trial court at the summary-judgment hearing appeared to have granted the motion based on its conclusion that there was a lack of evidence of proximate causation. Nevertheless, we can affirm a ruling of a trial court if it reached the right result, even though it may be for a different reason. Almobarak v. McCoy, 84 Ark.App. 152, 154, 137 S.W.3d 440, 441 (2003).
. Royce merely makes vague and conclusory references to the fact that Dean gave his "underage” son a gun in violation of "federal law.”
. Again, we can affirm a ruling of a trial court if it reached the right result, even though it may be for a different reason. Almobarak, 84 Ark.App. at 154, 137 S.W.3d at 441. | [
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PER CURIAM.
hOn January 16, 2014, petitioner Oscar W. Stanley filed a petition in the Sebastian County Circuit Court, Fort Smith District, seeking to proceed in forma pauperis. He said in the petition that he wished to proceed as an indigent with a petition for declaratory judgment in a civil matter and that the respondent was Ray Hobbs, the Director of the Arkansas Department of Correction. The circuit court denied the petition on the ground that the proposed pleading did not state a colorable cause of action. Petitioner timely filed a notice of appeal from the order and tendered the record on appeal to this court. Now before us is petitioner’s pro se petition seeking leave to lodge the appeal without paying the filing fee required to lodge an appeal in a civil matter.
The record tendered to this court contains only the petition to proceed in forma pauperis filed in the circuit court, the order denying the petition, and the notice of appeal. Rule 72 of the Arkansas Rules of Civil Procedure conditions the right to proceed in forma pauperis in civil ^matters upon, among other things, the court’s satisfaction that the alleged facts indicate a colorable cause of action. Brown v. Sachar, 2013 Ark. 319, 2013 WL 4779689 (per curiam); Boles v. Huckabee, 340 Ark. 410, 12 S.W.3d 201 (2000) (per curiam). A colorable cause of action is a claim that is legitimate and may reasonably be asserted given the facts presented and the current law or a reasonable and logical extension or modification of it. Brown, 2013 Ark. 319. As grounds for his request to proceed without paying a filing fee, petitioner states the following:
The sentencing phase record of the case cause (Sebastian Co.-Arkansas) Circuit Court (No. CR-12-321) is so dispositive of the fact that the terms of the plea agreement as stated by court and entered into by this afficant [sic] petitioner has not and is still not being met per the “judgment & commitment order” supplied to the Ark. Dept, of Correction-by the (Sebastian Co.-Ark.-circuit court clerk) failure to adhere to the plea agreement is grounds to void the plea!
Based on petitioner’s statement, we cannot say that petitioner has established a color-able cause of action that is legitimate and may reasonably be asserted given the facts presented and the current law or a reasonable and logical extension or modification of it. Where no fundamental right is involved, filing fees do not violate due process. Brown, 2013 Ark. 319 (citing Partin v. Bar of Ark., 320 Ark. 37, 894 S.W.2d 906 (1995)). Petitioner has not demonstrated that he should be allowed to proceed without paying a fee to lodge an appeal.
In his motion, petitioner also contends that he is entitled to proceed in forma pauperis because he is unable to pay the costs associated with the proceeding and the petition is not being brought for a frivolous or malicious purpose. The statement also does not constitute a showing of a colorable cause of action.
If petitioner desires to proceed with an appeal from the order that denied his motion to proceed in forma pauperis, he is responsible for remitting the required filing fee at his expense | swithin thirty days of the date of this opinion. See Brown, 2013 Ark. 319; see also Young v. Black, 366 Ark. 198, 234 S.W.3d 284 (2006) (per curiam).
Motion denied. | [
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PER CURIAM.
|TIn 2009, appellant Ronald E. Robinson was found guilty by a jury of two counts of attempted first-degree murder and two counts of first-degree battery. He was sentenced, with an enhancement for committing a felony with a firearm, to an aggregate term of 1620 months’ imprisonment. The Arkansas Court of Appeals affirmed. Robinson v. State, 2010 Ark. App. 772, 2010 WL 4637772.
After the court of appeals issued its mandate on appeal, petitioner timely filed in the trial court a pro se verified petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). The court entered an order denying the petition on December 28, 2011. Petitioner did not timely file a notice of appeal from the order and sought leave from this court to proceed with a belated appeal. The motion was granted on the ground that appellant had not been informed that the order had been entered as required under Rule 37.3(d). Robinson v. State, | ⅞2013 Ark. 46, 2013 WL 485669 (per curiam).
On appeal from the order, appellant first argues that the trial court erred by denying Rule 37.1 relief without holding an evidentiary hearing and by adopting the law and reasoning contained in the State’s response to the Rule 37.1 petition in its order. We find no error.
Arkansas Rule of Criminal Procedure 37.3 (2013) provides that an evidentia-ry hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the petitioner is entitled to no relief. Anthony v. State, 2014 Ark. 195, 2014 WL 1716538 (per curiam); Lemaster v. State, 2013 Ark. 449, 2013 WL 5968938 (per curiam); Ea-son v. State, 2011 Ark. 352, 2011 WL 4092485 (per curiam); Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam). When it denies a Rule 37.1 petition without an evidentiary hearing, 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.” Ark. R.Crim. P. 37.3(a); see Eason, 2011 Ark. 352; Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189 (“[W]here no hearing is held on a Rule 37 petition, the trial court has an obligation to provide written findings that conclusively show that the petitioner is entitled to no relief.”). Here, the trial court’s order adopted the law and reasoning for denying the petition that were contained in the State’s detailed response to the petition. As the response covered the issues raised in the petition, and this court may affirm the denial of a Rule 37.1 petition, regardless of the adequacy of the order, if we can determine from the record that the petition was wholly without merit or when the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted, we find that the order was adequate. See Anthony, 2014 Ark. 195; see also Lemaster, 2013 Ark. 449; Montgomery, 2011 Ark. 462, 385 S.W.3d 189. From a preview of the order, the State’s response, the record, and the briefs filed in this appeal, appellant has not demonstrated that the trial court erred in denying the petition or in doing so without holding a hearing.
All the claims for relief contained in the Rule 37.1 petition were allegations that appellant did not have effective assistance of counsel at trial. This court has held that it will reverse the trial court’s decision granting or denying postconviction relief only when that decision is clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.
When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Taylor v. State, 2018 Ark. 146, 427 S.W.3d 29.
The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Pursuant to Strickland, We assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not fuiictioning as the “counsel” guaranteed the petitioner by the Sixth Amendment Lto the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). A petitioner making an ineffective-assistance-of-counsel claim tnust show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). There is a strong presumption that trial counsel’s conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoming this presumption hy identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W,3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam). Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. The petitioner must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618 (per cu-riam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sehtencing. Id. 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. Id. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697,104 S.Ct. 2052. As points for reversal of the order, appellant reiterates the claims raised |5in the Rule 37.1 petition. Initially, he argues that counsel should have made a more effective motion for directed verdict that included pointing out that the State failed to offer forensic proof that appellant fired a weapon. Specifically, appellant contends that the motion for directed verdict, which was founded on the argument that there Was no credible evidence that appellant was the shooter, should also have included the fact that appellant’s fingerprints were not on the bullets or the shell casings and that no test existed that could show that appellant was the assailant in the case.
When it is asserted that counsel was ineffective for the failure to make a motion or argument, the petitioner must show that the motion or argument would have been meritorious because the failure to make an argument that is meritless is not ineffective assistance of counsel. Conley, 2014 Ark. 172, 433 S.W.3d 234 (citing Mitchell v. State, 2012 Ark. 242, 2012 WL 1950257.). The victims, Michael Walker and Eric Washington, testified at trial that they were sitting in a car when appellant and Jeff Traylor arrived in another car. Shots were fired at the victims, and both victims sustained multiple gunshot wounds. Both men identified appellant as having shot them. Jeff Traylor also testified for the. State that he was present when the shooting occurred but did not participate in it. A witness for the defense testified that he saw Traylor shoot at the victims but did not see appellant shooting.
Here, the victims identified appellant as the assailant, and their credibility was a matter for the jury to assess. Green v. State, 2013 Ark. 497, 430 S.W.3d 729. It is evident from the verdict that the jury accepted the victims’ account of the incident as being more credible than the evidence adduced by the defense. In light of the victims’ identification of appellant, it | ficannot be said that a motion for directed verdict based on the failure of the State to produce proof of appellant’s fingerprints on the bullets and the shell casings or based on the lack of a forensic test tying appellant to the shootings would have produced a favorable ruling on a motion for directed verdict. Appellant did not meet the Strickland standard for establishing ineffective assistance of counsel in that he did not show that counsel’s conduct with respect to the motion for directed verdict'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
Appellant next contends that counsel was remiss in not impeaching Jeff Traylor’s testimony at trial. He alleges that, prior to trial, an unnamed investigator taped an interview with Traylor in which Traylor said that appellant was not with him when the shootings occurred. Appellant faults counsel for not procuring a tape of the interview and using it to impeach Traylor’s testimony when Traylor said at trial that appellant was with him, and that he (Traylor) fired none of the shots.
The transcript lodged on direct appeal reflects that counsel for appellant questioned Traylor about a prior inconsistent statement that he had given to Peter Briggs, who identified himself as an investigator, in which Traylor said that appellant was not present with him when the shots were fired. Assuming that it is the statement to Briggs that appellant referred to in his petition, he has not shown that a tape was made; but, in any event, Traylor admitted at trial to having made the statement that was favorable to appellant’s defense, explaining that appellant was his friend and that he had lied to the investigator to help his friend. Counsel also questioned Traylor at length on whether Traylor was changing his story in hopes of helping himself with [7respect to charges that had been filed against him. In light of the examination of Traylor by the defense on his prior statement, appellant has not shown that counsel erred in not producing a tape of the statement, if one indeed existed. Appellant did not allege that there would have been any information on the tape that was different than the information revealed in the questioning of Traylor. In light of counsel’s examination of Traylor at trial, appellant failed to make a showing of prejudice with respect to the statement to the investigator.
Moreover, even if there was a tape of the interview, the manner of questioning Traylor could have been a mere matter of trial strategy. The questioning of a witness is largely a subjective issue about which seasoned advocates could disagree. An approach that may prove effective in one instance may fail entirely in another. Counsel is allowed great leeway in making strategic and tactical decisions. Ellis v. State, 2014 Ark. 24, 2014 WL 260991 (per curiam); Leak v. State, 2011 Ark. 358, 2011 WL 4092217 (per curiam). We have repeatedly held that matters of trial strategy, even if the strategy proves improvident, are not grounds for granting postconviction relief. Prater v. State, 2012 Ark. 164, 402 S.W.3d 68; Fretwell v. State, 292 Ark. 96, 728 S.W.2d 180 (1987) (per curiam). Nevertheless, the decisions must be based on reasonable professional judgment. Clarks v. State, 2011 Ark. 296, 2011 WL 3136042 (per curiam); Leak, 2011 Ark. 353. Here, appellant did not establish that either counsel’s questioning of Traylor or counsel’s failure to produce a tape of Tray-lor’s statement was anything more than an issue of trial strategy that, considering the fact that Traylor admitted to having exonerated appellant in the statement, did not prove improvident. Clearly, appellant |Rdid not show that the strategy was outside the bounds of reasonable professional judgment sufficient to undermine confidence in the outcome of the trial.
Appellant’s next ground for reversal of the order is the claim that counsel was ineffective for failure to adequately support his motion for a continuance based on the State’s failure to give timely notice that it intended to call “Mr. Harris” as a witness. He contends in his brief, as he did in the Rule 37.1 petition, that he “believes that further review and investigation will likely uncover supporting facts that have yet to be addressed.”
On direct appeal, appellant argued that the trial court erred in denying the motion for continuance on the ground that counsel did not have the opportunity to investigate James Harris’s criminal history. The court of appeals held that the defense was not prejudiced by the denial of the motion, noting that the trial court permitted appellant’s attorney to examine Harris and learn that Harris’s suspected criminal conviction did not show up in national crime databases because Harris was a juvenile when the offense was committed. Moreover, the defense elected to call Harris as a witness for the defense. The transcript of the trial lodged on direct appeal reflects that Harris testified that he did not see appellant shooting at the victims but that he did see Traylor doing so. The court of appeals concluded on direct appeal that the evidence provided by Harris was sufficiently exculpatory that it could not be said that any prejudice accrued to the defense by the denial of the motion for continuance.
Appellant also demonstrated no prejudice to the defense under the Strickland standard. The mere statement that more information, presumably about Harris’s background, might have been uncovered had the motion for continuance been granted is speculative and not a ground |9for postconviction relief. Harris’s testimony was exculpatory to the defense, and speculation about what might have been uncovered does not support a determination that counsel was ineffective under Strickland. See Anthony, 2014 Ark. 195.
As his fourth point on appeal, appellant asserts that counsel was ineffective for “failing to offer support” for his request for a jury instruction on second-degree battery as a lesser-included offense and for not “federalizing” the issue to allow for subsequent review of the issue in a habeas-corpus proceeding in federal court. On direct appeal, appellant argued that the trial court’s denial of his request for an instruction on second-degree battery as a lesser-included offense to first-degree battery was reversible error. The court of appeals held that there was no error because appellant’s defense was that he did not shoot the victims, and there was no basis for an instruction on second-degree battery when appellant claimed he was entirely innocent. Appellant contended in the Rule 37.1 petition that counsel should have consulted with him before choosing innocence as a defense, but he did not explain what theory should have been adopted by the defense. Neither his mere suggestion that there might have been a better theory on which to base a defense or his bare statement that counsel could have made a better argument for second-degree battery as a lesser-included offense demonstrated that counsel erred in some specific way.
With respect to appellant’s assertion that counsel had an obligation to “federalize” the request for jury instruction on second-degree battery, appellant offered no persuasive argument that counsel made some error at trial that deprived appellant of his right to effective assistance of counsel. The claim is entirely too vague to establish a ground for granting relief.
|1ftAs his final point for reversal, appellant contends that counsel should have objected when the trial court ordered that appellant’s sentences be served consecutively as recommended by the jury. Appellant raised the issue on direct appeal of whether the trial court erred by not exercising its discretion to consider imposing concurrent sentencing, but the court of appeals declined to address the issue as the issue was not preserved for appeal.
While the jury here recommended consecutive sentencing, whether a sentence is ordered to run consecutively or concurrently is a matter entirely within the province and discretion of the circuit court. Walton v. State, 2013 Ark. 265, 2013 WL 3179376 (per curiam). Appellant’s statement in the petition that counsel “unreasonably failed to object” to the consecutive sentencing is not a ground on which to grant postconviction relief because it is entirely devoid of any explanation of the factors on which an objection could have been based. When a petitioner under the Rule fails to explain what factual substantiation counsel could have advanced to the court in favor of a concurrent sentence, he has not established that counsel was ineffective. Ewells v. State, 2010 Ark. 407, 2010 WL 4264502 (per curiam); see also Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918 (per curiam).
After a thorough review of the matter, we do not find that appellant met his burden under Strickland of overcoming the presumption that counsel was effective. For that reason, appellant did not establish that the trial court’s decision was clearly erroneous.
Affirmed.
. Petitioner was represented in the Rule 37.1 proceeding by an attorney, but counsel was relieved after the order was entered and before petitioner filed his notice of appeal.
. Counsel for appellant called Briggs as a witness and inquired about Traylor’s statement to him, but the State objected that the statement was hearsay, and the objection was sustained.
. Counsel for appellant filed a posttrial motion asking for reconsideration of the sentence on the sole ground that the court's decision that the sentences be served consecutively was too harsh. The record on direct appeal does not contain an order on the motion, indicating that it may have been deemed denied. | [
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BRANDON J. HARRISON, Judge.
| Margaret Jones appeals the Arkansas Board of Review’s decision to deny her unemployment benefits. The issue is whether Jones was discharged from Packers Sanitation for misconduct; if she committed misconduct, then she gets no benefits. But she did not engage in misconduct when she missed four days of work due to an undisputed illness that the employer knew about from the get go. So we reverse the Board’s denial and remand for an award of benefits.
I.
Margaret Jones worked at Packers Sanitation from May 2011 until she was fired in October 2013. The circumstances of her firing were addressed during an Appeal Tribunal hearing in December 2013.
Jones was the only party who testified during the hearing, and she told the hearing officer that she was discharged because her employer said that she left work without | permission. Jones said that she left work because she was sick and that a manager, Andre Johnson, was in the hallway when she was vomiting. Although she did not tell her immediate supervisor that she was leaving due to illness, Jones said that she told Johnson that she was ill and needed to go home and that Johnson held a position superior to Jones’s immediate supervisor. The record does not contain a written attendance policy.
That Jones became hi at work is essentially undisputed. For when Jones told the hearing officer that a co-worker saw her vomiting and could testify what happened, the hearing officer replied: “Well, you’ve already testified to that, and your testimony is credible, so you don’t need a witness for that.” Jones was absent four days, and she testified that she called in each day she was absent. Nothing in the record contradicts Jones’s memory that she kept her employer informed about the basic course of her illness.
Packers Sanitation told Jones that she needed to bring a doctor’s excuse with her when she returned. Jones admittedly did not produce a note. According to Jones, her doctor would not accept her insurance because she had not met her deductible; and she could not otherwise afford the $200 visit.
The Appeal Tribunal’s decision, which the Board adopted, stated:
The claimant was discharged by the employer for leaving her work without permission. The claimant provided testimony that although she did not notify her immediate supervisor, she did notify his supervisor. The claimant was absent for four days and failed to provide a doctor’s excuse as advised by the employer. By being absent for four days without providing a doctor’s excuse, the claimant’s actions were not in the best interests of the employer. Therefore, the claimant was discharged from last work for misconduct in connection with the work.
_b.II-
The employer must prove misconduct by a preponderance of the evidence. Grigsby v. Everett, 8 Ark.App. 188, 191 649 S.W.2d 404, 406 (1983). Arkansas Code Annotated section 11-10-514(a) (Repl.2012) provides in part:
(2) In cases of discharge for absenteeism, the individual shall be disqualified for misconduct in connection with the work if the discharge was pursuant to the terms of a bona fide written attendance policy with progressive warnings, regardless of whether the policy is a fault or no-fault policy.
(3) (A) Misconduct in connection with the work includes the violation of any behavioral policies of the employer as distinguished from deficiencies in meeting production standards or accomplishing job duties, and
(B) Without limitation:
(i) Disregard of an established bona fide written rule known to the employee; or
(ii) A willful disregard of the employer’s interest.
Our easelaw has long interpreted misconduct to include: “(1) disregard of the employer’s interests, (2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer has a right to expect of his employees, and (4)disregard of the employee’s duties and obligations to his employer.” Nibco, Inc. v. Metcalf, 1 Ark.App. 114,118, 613 S.W.2d 612, 614 (1981). But mere unsatisfactory conduct, ordinary negligence, or good-faith errors in judgment or discretion are not misconduct unless they are of such a degree or recur so often as to manifest wrongful intent, evil design, or an intentional disregard of the employer’s interests. Maxfield v. Dir., Ark. Emp’t Sec. Dep’t, 84 Ark.App. 48, 129 S.W.3d 298 (2003).
[ 4Whether an employee’s behavior is misconduct that justifies the denial of unemployment benefits is a question of fact for the Board to decide. Garrett v. Dir., Dep’t of Workforce Servs., 2014 Ark. 50, 2014 WL 495124. This court affirms the Board’s decision if it is supported by substantial evidence. Id. Substantial evidence is relevant evidence that reasonable minds might accept as adequate to support a conclusion. Id. We view the evidence and all reasonable inferences in the light most favorable to the Board’s findings. Id. Even if the evidence could support a different decision, we ask only whether the Board could have reasonably reached its decision based on the evidence presented. Id.
III.
The Board’s decision that Jones was ineligible for benefits because she failed to get a doctor’s note to excuse her absences is unreasonable. Similar legal ground has been plowed before. In Walls v. Director, Employment Security Department, 74 Ark.App. 424, 49 S.W.3d 670 (2001), for example, we reversed the Board’s misconduct determination because the evidence showed that, while employee Walls had violated the employer’s written policy requiring notice of absences, there was no evidence that employee Walls ever intentionally violated the rules so as to manifest a wrongful intent or evil design. And in Oliver v. Director, Employment Security Department, 80 Ark.App. 275, 94 S.W.3d 362 (2002), we reversed the Board’s denial of benefits when employee Oliver telephoned her employer every day to inform it that she could not work. The employer considered the absences unexcused because of the lack of documentation or because Oliver had exhausted her available FMLA hours. We held that the illness-related absences were beyond Oliver’s control and that no evidence supported a finding that Oliver had willfully | .^disregarded the employer’s interest, intentionally disobeyed workplace rules, or “any similar actions manifesting misconduct.” Id.
Like Oliver and Walls, Jones’s absences were due to a bout of illness that was beyond her control. Her employer knew why she initially left the workplace when Jones notified a ranking supervisor. As for the lack of a doctor’s note, we hold that Jones’s inability to produce the doctor’s excuse her employer requested does not amount to misconduct in this case.
The Board’s denial is reversed, and the case remanded for an award of benefits.
Reversed and remanded.
GRUBER and WOOD, JJ„ agree. | [
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PER CURIAM.
|TIn 2007, appellant Carl Lee Linell, Sr., filed a pro se petition for judicial review in the county where he was incarcerated in the Arkansas Department of Correction (“ADC”). Appellant brought the petition pursuant to Arkansas Code Annotated § 25 — 15—212(b)(3), which is contained within the Administrative Procedure Act (“APA”), currently codified as Arkansas Code Annotated §§ 25-15-201-217 (Repl. 2002 & Supp.2007). Therein, appellant sought review of ADC actions, policies, and procedures that appellant contended violated his due-process rights under the Fourteenth Amendment of the United States Constitution. The appellee filed a motion to dismiss the petition, and the trial court granted the motion with prejudice. Appellant has lodged a pro se appeal here from the order.
12This appeal arises from four major disciplinary charges filed against appellant while incarcerated. The charges allege that on December 17, 1999, appellant violated disciplinary rules 06-1 (demanding/receiving money or favors or anything of value in return for protection against others, to avoid bodily harm, or being informed upon), 05-3 (assault — any willful attempt or threat(s) to inflict injury upon the person of another), 04-3 (rape or forced sex act), and 17-1 (any act or acts defined as felonies or misdemeanors by the State of Arkansas).
A hearing was held in January 2000, and appellant was found to have committed the violations. Appellant then appealed the decision. On March 27, 2000, the appellee affirmed the ruling and found that appellant “failed to provide any additional evi dence that would warrant modification or reversal of the hearing officer’s decision.”
As punishment for the violations, appellant received thirty days of punitive isolation, forfeited 365 days of good time credits, and was reduced from Class III inmate status to Class IV status. He also contends that after completion of the punitive isolation punishment, he was assigned to administrative segregation “for several months” by the Unit Classification Committee and then released into the general prison population in mid-2000.
Subsequently, in 2005, ADC enacted a policy that was based on the federal Prison Rape Elimination Act of 2003. The ADC Prison Rape Elimination Act (“PREA”) |?,supported a zero-tolerance standard regarding incidences of rape in ADC facilities. The act established a mechanism whereby any inmate who had been found guilty of the disciplinary charge of rape would be considered by the Unit Classification Committee as eligible for assignment to segregated single-cell housing.
As an exhibit attached to the petition for judicial review, appellant presented an ADC Administrative Segregation Review form dated January 10, 2007. The form indicated that appellant had initially been assigned to segregated housing on May 11, 2005, which was the date that the ADC PREA policy took effect.
The form also indicated that in January 2007, the Unit Classification Committee found appellant to be “a threat to the security and good order of the institution” as well as a PREA inmate. On those bases, the Committee approved appellant’s continued segregation from the general prison population.
Appellant then sought disclosure of the basis for his PREA-inmate status. In response, the VSM (Varner Maximum Security Unit or Varner Super Max) Classification Officer, Revonna Walker, informed appellant that his PREA status was based on the conviction for the rape that occurred in 1999.
In April and May 2007, appellant filed three grievance complaints pertaining to various allegations. Initially, the warden ruled that appellant’s grievances concerned | ¿disciplinary matters, racial discrimination accusations, and multiple other issues that were unsubstantiated and untimely raised. Appellant appealed from the warden’s determination.
On August 17, 2007, the deputy director issued decisions that denied appellant’s appeals on the same bases as the warden’s initial denial, and further found that appellant had failed to comply with the page limitation set for grievance forms. The deputy director specifically held that appellant was complaining about matters that occurred in 1999, 2000 and 2005, and that the time to file grievances from those matters had since expired.
Thereafter, on October 22, 2007, appellant filed the petition for judicial review of ADC’s actions in circuit court. In the petition, appellant sought a review of the 1999 major disciplinary form and subsequent determination by an ADC hearing officer that appellant violated four major disciplinary rules. Appellant’s petition focused specifically on ADC’s claim and determination that appellant violated Disciplinary Rule 04-3, rape or forced sex act. He also asked the court to scrutinize the March 27, 2000 ruling that upheld a hearing officer’s decision that appellant violated Disciplinary Rule 04-3.
Appellant further asked that ADC decisions regarding his status as a PREA inmate be reviewed. Appellant was initially designated as a PREA inmate and assigned to segregated housing on May 11, 2005. On January 10, 2007, ADC continued appellant’s PREA-inmate designation. Thereafter, appellant’s grievances concerning myriad issues, [ including an objection to segregated housing for PREA inmates, were denied at the highest level of the grievance process on August 17, 2007.
In addition to review of ADC’s actions, appellant sought a declaration that ADC violated appellant’s constitutional rights, an injunction against ADC directing it to refrain from unlawfully punishing appellant in the future, a reversal of his conviction for rape and expungement of the offenses from his ADC record, a release from PREA housing and restoration of all privileges.
The circuit court dismissed appellant’s petition because the court found that appellant’s petition was prohibited by the Administrative Procedure Act. Under the APA, judicial review is generally not available to an “inmate under sentence to the custody of the Department of Correction.” Ark.Code Ann. § 25-15-212(a). The ADC’s administration of prisons “has generally been held to be beyond the province of the courts.” Clinton v. Bonds, 306 Ark. 554, 557, 816 S.W.2d 169, 171 (1991). Nevertheless, section 25-15-212(a) has been interpreted to not preclude an inmate’s assertion of an “infringement upon [his] constitutional rights.” 306 Ark. at 557, 816 S.W.2d at 171-72.
Here, we need not reach a determination of whether appellant’s claims fit within the exception to section 25-15-212(a) that has been elucidated by Clinton v. Bonds, supra. Even if the question were to be answered in the affirmative, appellant would still be precluded | nfrom seeking judicial review of ADC’s actions pursuant to the APA as the petition was untimely filed.
In the last decisions issued by the ADC, the deputy director found that appellant’s grievances were untimely as they pertained to matters that occurred in 1999, 2000 and 2005. In the petition and on appeal, appellant does not address that aspect of the August 17, 2007 rulings. Instead, appellant appears to have utilized the grievance procedure to “boot strap” matters that occurred in 1999, 2000, and 2005 into rulings issued in 2007. Indeed, appellant’s arguments focus almost exclusively on the matters that occurred in 2005 and before.
Moreover, section 25-15-212(b)(l) of the APA requires that petitions for judicial review be initiated “within thirty (30) days after service upon petitioner of the agency’s final decision.” The record on appeal supports the conclusion that the October 22, 2007 petition was filed more than thirty days after appellant was served with copies of the ADC’s final decisions. While appellant may not have been served with copies of the final decisions on August 17, 2007, the record reflects that appellant was served with copies of the decisions no later than September 8, 2007. On that date, appellant signed the petition for judicial review. Even if we accept September 8, 2007, as the date of service, the petition was not filed until October 22, 2007, which is more than thirty days after service upon appellant of|7ADC’s final decisions.
In sum, appellant failed to rebut the untimely filing of grievances about matters that occurred in 1999, 2000 and 2005. Also, the record supports the conclusion that the petition for judicial review was filed more than thirty days after appellant was served with copies of the August 17, 2007 rulings issued by the ADC. Appellant is therefore precluded from seeking a remedy under the Administrative Procedure Act. Ark.Code Ann. § 25 — 15—212(b)(1).
Affirmed.
. Appellant notes that he is not eligible to earn good time credits because he has been sentenced to life imprisonment without parole.
. The Act is codified as 42 U.S.C. §§ 15601— 609 (Supp. III 2000).
.The original grievance forms were not included as exhibits to the petition for judicial review.
. Although PREA-status review may apparently be performed periodically or at specific intervals, and appears to be continuing in nature, appellant brings only these two dates to our attention. Also, he did not provide any information about the review process.
. By resolving this matter based on the statute of limitations, we make no determination as to the validity of any claims raised by appellant, constitutional or otherwise.
. Appellant’s petition to proceed in forma pauperis was denied and the trial court entered an order on September 11, 2007, requiring the tender of an initial partial filing fee in the amount of $59. The order authorized and directed the circuit clerk to file appellant’s petition upon receipt of the initial partial filing fee. Nothing contained in the file demonstrates that the clerk received the initial partial filing fee before October 22, 2007. | [
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WAYMOND M. BROWN, Judge.
I,At a bench trial, Michael E. Jackson was convicted of internet stalking of a child and was sentenced to two years’ imprisonment, followed by three years’ suspended imposition of sentence. Jackson challenges the sufficiency of the evidence to support the conviction, claiming that the State failed to show that he believed that he was chatting online with a fourteen-year-old girl. He also argues that the trial court erred in admitting transcripts of the conversations between him and the police officer posing as a fourteen-year-old, contending that the conversations were inadmissible hearsay and were not properly authenticated. We affirm.
In October 2007, Detective Brian Williams of the Conway Police Department posed as fourteen-year-old Misty Webb while using the Yahoo Instant Messenger program. The |2terms and conditions of the program require users to be over the age of eighteen. To circumvent this requirement, Williams listed Webb’s age as 100. On October 15, 2007, Webb received a message from Jackson, who was using the name “James Smith.”
During Williams’s testimony at trial, the State sought to introduce transcripts of the conversations between Webb and Jackson. Jackson objected, arguing that the transcripts were inadmissible hearsay and that they were not properly authenticated. In response, Williams explained that the program had an option where one could save transcripts of specific conversations. He testified he created a folder with the suspect’s name on it and saved conversations and any pictures the suspect sent in that folder. He explicitly denied altering any of the conversations. Williams claimed that the transcripts were authentic because he was present when the conversations were taking place and because Jackson admitted that he was the one chatting with Webb. The court overruled Jackson’s objection and admitted the transcripts into evidence.
The first communication between Webb and Jackson occurred on October 15 and 16, 2007, but there was no significant conversation. The two spoke again on the afternoon of October 17. Webb indicated that she had just returned from school. Jackson asked her if she was still in high school; Webb replied that she was in the ninth grade. He then asked Webb for a picture; he received a picture of someone age-regressed to appear fourteen years |sold. About ten minutes later, Jackson asked Webb if she was a virgin. Webb replied that she was. She followed up by stating that she was fourteen years old. The conversation ended about ten minutes later.
Jackson contacted Webb again at 1:55 p.m. on October 29, 2007. He asked her why she was not in school, to which she replied that she was done at school at 1:45 p.m. Two minutes later, Jackson asked Webb if she performed oral sex. He then asked Webb about her parents. Webb told him that her mother was at work and that her father was in Chicago. Jackson then immediately asked Webb if she wanted to perform oral sex on him. As the conversation proceeded, Webb asked Jackson if he had ever been with a fourteen-year-old before, to which Jackson replied no. Jackson then wrote that he was thinking about whether Webb would tell someone. Jackson told Webb to meet him at the Taco Bell and that they would have oral sex in the bathroom of the Taco Bell. At 3:15, Jackson told Webb that he was walking out of the door. At that time, Williams advised other detectives that Jackson would be going to the Taco Bell. He gave officers a description of Jackson and told them that Jackson would be arriving in a white car.
Detective Mike Welsh positioned himself at a gas station near the Taco Bell. While there, he saw a white car traveling north. The driver was later identified as Jackson. When Jackson first appeared, he started to turn left into the Taco Bell, but then continued northbound. Jackson then turned into the gas station, exited the car, went inside the store, and then returned to his car. He drove around the area, but he eventually pulled into the |4Taco Bell parking lot, sat there for a short period of time, and then left.
Jackson returned to his computer at 4:25 to talk to Webb. The two talked until 5:02, when Welsh and other officers arrived at Jackson’s home. Jackson’s girlfriend answered the door, but Jackson later talked to police and admitted that he had been talking with a fourteen-year-old on the computer. Later during an interview at the Conway Police Department, Williams asked Jackson to read the conversations dated October 29, 2007, and sign the pages if they accurately depicted the conversation. Every page of that transcript is signed. While Jackson was signing the transcript pages, Williams asked Jackson if he knew Webb was fourteen. Jackson replied that he did.
At the close of the State’s case, Jackson moved for dismissal. He reasserted his objections to the admissibility of the transcript. He also argued that the State failed to show that he was attempting to solicit a child fifteen years of age or younger into a meeting for the purposes of sex. The court denied his motion. Jackson then testified in his own defense. At the conclusion of Jackson’s testimony, the court stated that it was denying Jackson’s motions again. After taking a few days to consider the case, the court found Jackson guilty of internet stalking of a child. It sentenced him to two years in the Arkansas Department of Correction, followed by three years’ suspended imposition of sentence.
First, Jackson challenges the sufficiency of the evidence to support the conviction. When considering a challenge to the sufficiency of the evidence, we consider the evidence in the light most favorable to the State, considering only the evidence in favor of the guilty | verdict, and affirm if the conviction is supported by substantial evidence. Mitchem v. State, 96 Ark.App. 78, 238 S.W.3d 623 (2006). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Baughman v. State, 853 Ark. 1, 110 S.W.3d 740 (2003). Circumstantial evidence may constitute sufficient evidence to support a conviction, but it must exclude every other reasonable hypothesis other than the guilt of the accused. Whitt v. State, 365 Ark. 580, 232 S.W.3d 459 (2006). The question of whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the trier of fact to decide. Id.
Under Arkansas Code Annotated section 5-27-306(a)(2)(C) (Supp.2007), a person commits internet stalking of a child if the person being twenty-one years of age or older knowingly uses an internet service to seduce, solicit, lure, or entice an individual that the person believes to be fifteen years of age or younger in an effort to arrange a meeting with the individual for the purpose of engaging in deviate sexual activity. Internet stalking of a child is a Class B felony if the person attempts to arrange a meeting with an individual that the person believes to be fifteen years of age or younger, even if a meeting with the individual never takes place. Ark.Code Ann. § 5-27 — 306(b)(1).
A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Gikonyo v. State, 102 Ark.App. 223, 283 S.W.3d 631 (2008). Because intent cannot be proven by direct evidence, the fact finder is allowed to draw upon common knowledge and experience to | Binfer it from the circumstances. Id. Because of the difficulty in ascertaining a defendant’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his or her acts. Id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
Jackson argues that the State presented insufficient evidence showing that he believed that he was talking to someone fifteen years of age or under. He argues that the evidence only shows that Webb identified her age once, on October 17, 2007, and that this page of the transcript did not contain his signature. He also relies on Yahoo’s policy requiring users of its instant-messaging program to be at least eighteen years of age.
The evidence presented by the State is sufficient to show that Jackson believed that he was talking to a fourteen-year-old girl. During the conversation on October 17, 2007, Jackson asked Webb if she was still in high school, to which Webb replied that she was in the ninth grade. On October 29, 2007, Jackson asked Webb why she was not at school, which showed that he believed Webb to be a ninth grader, not an adult. He also asked Webb about her parents. When Webb asked Jackson if he had ever been with a fourteen-year-old girl, he replied no. When the two were making arrangements, Jackson was concerned that Webb might get him in trouble. Finally, when questioned by police, Jackson admitted that he was talking to a fourteen-year-old on the internet and that it was wrong. Accordingly, we affirm on this point.
17Jackson also challenges the admissibility of the transcript of the conversations between him and Webb. He contends that the transcripts were inadmissible hearsay and that they were not properly authenticated. The admissibility of the transcripts is reviewed under the abuse-of-discretion standard. See Brunson v. State, 368 Ark. 313, 245 S.W.3d 132 (2006).
Proof of authenticity as a condition precedent to the admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Ark. R. Evid. 901(a). Authenticity may be satisfied by testimony of a witness with knowledge that the matter is what it is claimed to be. Ark. R. Evid. 901(b)(1). To prove authenticity of evidence, the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003). The fact that a party proponent supplied the authentication does not go to the admissibility of the document, although it may go to the weight of the evidence. McDermott v. Strauss, 283 Ark. 444, 678 S.W.2d 334 (1984).
Jackson cites several cases in support of his argument that the transcripts were not properly authenticated. Most of the cases are irrelevant, as they go to the hearsay issue, not the authentication issue. The only precedent worth discussing is St. Clair v. Johnny’s Oyster 8& Shrimp, Inc., 76 F.Supp.2d 773, 774-75 (S.D.Tex.1999), where the district court discussed the admissibility of an unidentified piece of evidence from the internet:
Plaintiffs electronic “evidence” is totally insufficient to withstand Defendant’s Motion to Dismiss. While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity of the alleged contentions that Plaintiff wishes to rely upon in his Response to Defendant’s Motion. There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in Fed. R.Civ.P. 807.
The present case is distinguishable from St. Clair. There, the court was commenting on a piece of evidence authored by an unknown source taken from an unidentified place on the internet. In this case, the evidence in question was produced by the detective and the defendant, as evidenced by Williams’s testimony and Jackson’s signature on a portion of the transcript. The authentication problems with a random page on the internet are absent when the parties who produced the document are present in court. To have the chat room transcripts admitted, the State needed only demonstrate a reasonable probability that the evidence had not been altered in any significant manner. Williams’s testimony and Jackson’s signature on the October 29 transcript satisfied that burden.
Jackson also argues that the statements were inadmissible hearsay; however, we [flr ejected a similar argument earlier this year. In another internet-stalking case, Dirickson v. State, 104 Ark. App. 273, 291 S.W.3d 198 (2009), the appellant sought to exclude transcripts similar to those in this case. With respect to the statements made by the appellant, we held that the statements were admissions by a party-opponent and were not hearsay (citing Ark. R. Evid. 801(c)). As for the officer’s statements, we held that they were not hearsay because they were admitted to put the conversation into context, not to prove the truth of the matters asserted. As we did in Dirickson, we reject Jackson’s hearsay arguments.
The court did not abuse its discretion in admitting the chat room transcripts. We affirm on this point as well.
Affirmed.
VAUGHT, C.J., and KINARD, J., agree.
. In his argument, Jackson insinuates that the police doctored the transcripts. We found nothing in the record showing this to be the case.
. To the extent that Jackson makes a hearsay argument, the precedents are irrelevant because those precedents discuss the admissibility of the evidence in question under the business-records exception to the hearsay rule, which is inapplicable to this case. | [
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PER CURIAM.
[i Edward Lee Carter was found guilty by a jury of aggravated robbery in violation of Arkansas Code Annotated § 5-12-102(a) (Repl.2006), and he was sentenced to 360 months’ imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed, and its mandate was issued on November 10, 2009. Carter v. State, 2009 Ark. App. 683, 2009 WL 3384382. Also on November 10, 2009, appellant filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). That petition was denied by the trial 12court on December 4, 2009, without an evidentiary hearing, and appellant timely filed an appeal in this court from that denial. He subsequently filed the motions for photocopying at public expense, for extension of time in which to file his brief, for access to the record, to amend his previous motion for access to the record, and to amend his motion for extension of time in which to file his brief that are now before us.
Before we address appellant’s motions, however, we must determine whether a petition for postconviction relief is timely when it is filed on the same day that the court of appeals issues its mandate, inasmuch as a circuit court lacks jurisdiction to rule on a petition filed before the mandate is issued. See Doyle v. State, 319 Ark. 175, 176, 890 S.W.2d 256, 257 (1994) (per curiam) (citing Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993)). We hold that it is timely.
Where a direct appeal is taken following a conviction, “a petition claiming relief under this rule must be filed in the circuit court within sixty (60) days of the date the mandate was issued by the appellate court.” Ark. R.Crim. P. 37.2(c) (2009); see Tillman v. State, 2010 Ark. 103, 2010 WL 682271 (per curiam). The time limitations in Rule 37.2(c) are jurisdictional in nature, and, where they are not met, a trial court lacks jurisdiction to grant post-conviction relief. DeLoach v. State, 2010 Ark. 79, 2010 WL 569742 (per curiam) (citing Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989)); see also Croft v. State, 2010 Ark. 83, 2010 WL 569744 (per cu-riam). If a trial court lacks jurisdiction due to a petitioner’s violation of the time limits in Rule 37.2(c), this court likewise lacks | ¡jurisdiction to reach the merits of the petition for postconviction relief on appeal. See Lawhon v. State, 328 Ark. 335, 942 S.W.2d 864 (1997) (per curiam).
The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. See State v. Britt, 368 Ark. 273, 244 S.W.3d 665 (2006) (quoting Crawford v. State, 362 Ark. 301, 208 S.W.3d 146 (2005)). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. The plain meaning of the word “within,” as it is used in Rule 37.2(c) is “between the beginning and end of [a period of time], in the course of, during.” The Oxford English Dictionary (2d ed.1989) available at OED Online, http://dictionary.oed.com/cgi/entry/ 50286345 (last visited March 9, 2010). Thus, Rule 37.2(c) requires a petition for postconvietion relief under Rule 37.1 to be filed between the beginning and end of the sixty-day period following the appellate court’s issuance of its mandate.
This court has held that a mandate is effective as of its date of issuance. See, e.g., Barclay v. Farm Credit Servs., 340 Ark. 65, 8 S.W.3d 517 (2000). Accordingly, the trial court regains jurisdiction as of the date the mandate is issued by the appellate court rather than the date the mandate is filed in the trial court. See generally Doyle v. State, 319 Ark. 175, 890 S.W.2d 256 (1994) (per curiam). The purpose of Rule 37.2(c) is to impose a deadline for filing a petition under Rule 37.1; if the period for calculating that deadline begins on the day the mandate is issued, it is axiomatic that the period in which a petitioner may file his Rule |437.1 petition begins on the same day. Accordingly, in the instant case, appellant filed his petition for postconviction relief on the day the sixty-day limit imposed by Rule 37.2(c) began to run, and we hold that this petition was timely.
We turn, then, to appellant’s motions for photocopying at public expense and for access to the record. Specifically, appellant, who claims he is indigent, seeks a copy of the brief-in-chief that his attorney filed in appellant’s direct appeal, a copy of the opinion issued by the court of appeals, and a copy of the record so that he may complete his brief-in-chief, and he requests that all copies be provided at public expense.
While we have consistently held that indigency alone does not entitle a petitioner to photocopying at public expense, see, e.g., Gardner v. State, 2009 Ark. 488, 2009 WL 3235627 (per curiam), we need not consider whether appellant is otherwise entitled to such copies because it is clear that appellant could not prevail on his appeal. An appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Stuart v. State, 2009 Ark. 492, 2009 WL 3235534 (per curiam) (citing Bunch v. State, 370 Ark. 113, 257 S.W.3d 533 (2007) (per curiam)). Accordingly, we dismiss the appeal, and the motions are moot.
In an appeal from a trial court’s denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Watkins v. State, 2010 Ark. 156 (per cu-riam), 362 S.W.3d 910; see Jamett v. | State, 2010 Ark. 28, 358 S.W.3d 874 (per curiam). Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). Under the Strickland test, a claimant must show that counsel’s performance was deficient, and the claimant must also show that this deficient performance prejudiced his defense so as to deprive him of a fair trial. Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam). As to the prejudice requirement, a petitioner must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Watkins, 2010 Ark. 156, 862 S.W.Sd 910; Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Sparkman, 373 Ark. 45, 281 S.W.3d 277.
Appellant raised four grounds for relief in his original Rule 37.1 petition, arguing that trial counsel was ineffective for failing to investigate the security system or speak to a store representative concerning the alleged theft at the Wal-Mart where the crime occurred, for failing to interview or call witnesses whose testimony could have impeached the testimony of the State’s two witnesses, for failing to obtain and submit a surveillance video from the aforementioned Wal-Mart, and for failing to challenge the jury-selection process as not presenting a fair cross-section of the community. All four arguments are unavailing inasmuch as appellant did not demonstrate the requisite prejudice under Strickland.
Appellant’s first two claims can be summarized as arguing that, had trial counsel ^performed the allegedly omitted actions, the State could not have established that appellant was guilty of theft, and appellant would therefore also not be guilty of robbery. As was explained in the opinion on direct appeal, however, this is an incorrect statement of the law concerning aggravated robbery. In rejecting appellant’s suffieiency-of-the-evidence argument, the court of appeals explained that a defendant can be convicted of robbery even if no property is actually taken because the emphasis is on the express or implied threat of physical harm to the victim. Carter, 2009 Ark. App. 683, at 1. While there was substantial evidence that appellant completed a theft, the State was not required to prove the actual accomplishment of a theft, only the purpose to do so coupled with the threat made to the victim. Id. at 3. The threat was established by the testimony of the victim, Salli Redding, who stated that she witnessed appellant place merchandise down his pants while in the store and that, when she confronted appellant in the parking lot regarding the theft, he pulled a gun and pointed it at her. Id. at 2-3. Redding’s testimony regarding the presence of a gun was corroborated by the State’s other witness, Jessica Brewer. Id.
Because the State was not required to prove that the alleged theft had actually been accomplished, appellant’s arguments that trial counsel was ineffective for failing to investigate the security system at Wal-Mart, for failing to talk to a Wal-Mart representative regarding the theft, and for failing to interview other alleged unnamed witnesses regarding the theft cannot provide a basis for relief. Appellant has failed to establish a reasonable probability that, had counsel performed those acts, the outcome of appellant’s trial (i.e., his conviction for | aggravated robbery) would have been different.
Appellant’s third argument was that trial counsel was ineffective for failing to obtain a surveillance video from Wal-Mart that would have shown appellant in the parking lot and would have shown that he did not pull a gun. In the order dismissing appellant’s Rule 37.1 petition, the trial court found that part of appellant’s defense strategy was to point to the lack of any video evidence that he had a firearm. Where a decision by counsel was a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then such a decision is not a proper basis for relief under Rule 37.1. Smith v. State, 2010 Ark. 137, 361 S.W.3d 840 (per curiam); McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam); Johnson v. State, 2009 Ark. 460, 344 S.W.3d 74 (per curiam). There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. McCraney, 2010 Ark. 96, 360 S.W.3d 144; Johnson, 2009 Ark. 460, 344 S.W.3d 74.
Here, appellant does not demonstrate that a decision to rely on the lack of positive video evidence as part of the defense to the aggravated robbery charge could not have been the result of reasonable professional judgment on the part of trial counsel. To the extent that his argument focuses on possible videotape evidence regarding whether he pulled a firearm, we note that there is an important difference between an absence of proof and actual proof |sof absence. Even if it appeared in a surveillance video that appellant did not have a gun, the testimony of both witnesses was that appellant did in fact display one. Thus, the issue was one of witness credibility, and it would have been for the jury to resolve the conflict. The trier of fact is free to believe all or part of any witness’s testimony and may resolve all questions of conflicting testimony and inconsistent evidence. Rounsaville v. State, 374 Ark. 356, 288 S.W.3d 213 (2008).
Judicial review of counsel’s performance must be highly deferential, and a fair assessment of counsel’s performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from counsel’s perspective at the time. Johnson, 2009 Ark. 460, 344 S.W.3d 74. Therefore, even if we were to assume that the video evidence appellant refers to actually exists, we cannot say that counsel’s decision not to obtain the tape and, instead, to rely on the State’s lack of video evidence as part of appellant’s defense could not have been the result of professional judgment. This is true even if the strategy proved improvident in the end. See Lee v. State, 2009 Ark. 255, 308 S.W.3d 596.
Finally, appellant argues that trial counsel was ineffective for failing to challenge the jury-selection process as not presenting a fair cross-section of the community. A fair-cross-section claim asserts that a distinctive group in the community was systematically excluded from the jury pool. Miller v. State, 2010 Ark. 1, 362 S.W.3d 264. Appellant argues that the 19ratio of African Americans to Caucasians in Garland County, Arkansas, is roughly fifteen percent, which, according to appellant, means that six of the forty persons in the venire should have been African American as well. Instead, appellant asserts, the selection process is “skewed toward Caucasians who live in the Hot Springs Village,” in violation of appellant’s Sixth Amendment rights. Appellant does not provide any proof that the selection system is skewed, nor does he further support his argument with citation to relevant case law. The burden is entirely on the appellant to provide facts that affirmatively support his claims of prejudice; neither con-clusory statements nor allegations without factual substantiation are sufficient to overcome the presumption, and they cannot form the basis of postconviction relief. Watkins, 2010 Ark. 156, 362 S.W.3d 910. We need not consider an argument, even a constitutional one, when a claimant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Id.
Based on all of the foregoing, it is clear to this court that appellant could not prevail on his appeal. We therefore dismiss the appeal, and appellant’s pending motions are accordingly moot.
Appeal dismissed; motions moot.
. Appellant then filed an amended Rule 37.1 petition on November 30, 2009; however appellant did not seek leave of the court to file an amended petition as required by Arkansas Rule of Criminal Procedure 37.2(e) (2010), and the trial court’s order does not reflect that the amended petition was ever considered. We therefore only consider the initial Rule 37.1 petition in determining whether appellant pleaded grounds sufficient to support relief under Rule 37.1.
. To the extent appellant’s argument focuses on possible videotape evidence as it relates to the theft, he cannot show prejudice for the reasons already discussed. | [
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DAVID M. GLOVER, Judge.
| Appellant, Monty Stidam, was convicted by a Benton County jury of rape and sexual assault in the second degree. The victim was Stidam’s three-year-old nephew, J.S. Stidam was sentenced to the Arkansas Department of Correction for forty years and twenty years respectively, with the sentences to be served consecutively. On appeal, Stidam contends that the trial court erred in denying his motions for directed verdict; in admitting what he deems unreliable, testimonial child-hearsay statements made by the victim; and in denying his motion to suppress his custodial statement. We affirm Stidam’s convictions.
I. Trial Testimony
At trial, Linus Shockley, J.S.’s father, testified that Stidam was his half-brother, and that at the time of the incident, his family lived about fifty yards away from where Stidam and |2their mother lived. Shockley stated that on the day in question, December 3, 2007, he and J.S. had gone to his mother’s house to visit, and that Stidam was the only person there. Shockley said that he asked Stidam to watch J.S. while he went back to his house to get something to eat; that he had left J.S. with Stidam “a lot” before; that he was gone for about five minutes; and that when he returned, the television was on in the living room but Stidam and J.S. were not in the room. He said that he went to Stidam’s room; that the door was closed; that he opened the door; and that Stidam jumped up, pulled his pants up, and ran out the door. Shockley testified that the first thing he saw when he opened the door was Stidam standing up; that Sti-dam’s pants were down “a little below” his bottom; that J.S. was lying on the bed; that Stidam appeared to be aroused; and that J.S. was scared, upset, and crying. When he asked J.S. what was going on, he stated that J.S. told him that Stidam “humped” him. Shockley said that J.S. was crying when he told him that Stidam “humped” him, and that as a result of that statement, Shockley called the police.
Benton County Sheriffs Office Corporal Diane Spain testified that she met Shockley at the Rogers Police Department; that he told her what happened at that time; and that it was decided to take J.S. to St. Mary’s Hospital. She said that she, Shockley, his wife, and J.S., all went into the exam room at the hospital; that the doctor came in and asked J.S. what Stidam had done to him; and that J.S. told the doctor that Stidam had “humped” him. Spain testified that this was the first time she had heard that statement; she said that Shockley and the doctor had talked outside the exam room, but she did not overhear their conversation. Spain said |sthat Shockley appeared to be in shock, but that he was calm and very matter-of-fact. Spain also repeated those facts Shockley had earlier related.
Debra Sensor, a registered nurse and a certified sexual-assault nurse examiner, testified that she performed an acute-rape kit on J.S. and that there were no findings on that exam; however, Sensor stated that was not unusual, as less than ten percent of children will have any signs of trauma after a sexual assault. Sensor explained that the anus is very elastic, and the absence of physical injury did not mean that there was no penetration.
Dr. Kristi Kaemmerling, the attending physician in the emergency room at the time J.S. was taken to the hospital, testified that prior to talking to J.S., she spoke with Shockley, who reported to her that Stidam had “humped” J.S. Dr. Kaemmer-ling testified that she then went in and talked to J.S., who told her that his uncle had “humped” him. Dr. Kaemmerling said that she performed a general physical exam but did not notice any overt physical trauma.
Jeremy Felton, a criminal investigator for the Benton County Sheriffs Office, testified that he was contacted regarding a possible sexual-assault victim, and he arranged to meet the Shockleys at the Children’s Advocacy Center. Felton stated that J.S. would not go back to talk to him, but that a medical exam was performed on J.S. and Felton spoke with his parents. Felton, likewise, repeated Shockley’s testimony based on his interview of Shockley.
Felton testified that after speaking with Shockley, he contacted the men’s mother, who told Felton that Stidam might have gone to Missouri. He said that a warrant was issued for Stidam on December 20, 2007, and that he was arrested in Barry County, Missouri, on January 2, 2008. Felton testified that he drove to Missouri on January 3 to interview Stidam; |4that he was not dressed in his uniform or carrying his gun at the time of the interview; that Stidam was wearing handcuffs during that interview; that prior to interviewing him, he read Stidam his Miranda rights; and that he then conducted an interview. Felton testified that Stidam signed the Miranda warnings. Felton said that Sti-dam was eighteen at the time of the interview; that he was unaware that Stidam had a criminal history; and that Stidam’s answers were “weak.” Felton denied that he lied to Stidam during the interview, but he did say that he phrased the questions in a certain way. Felton stated that he told Stidam that he had talked extensively to Shockley and J.S., and Stidam told him that he just wanted to get the interview over with and go home.
The transcript of Felton’s interview with Stidam indicated that Felton read Stidam’s rights to him, and that Stidam stated that he understood each one. Stidam also agreed to answer Felton’s questions without an attorney being present. At first, Stidam stated that he just wanted to “get this over with”; Felton told Stidam that he just wanted him to be honest with him, to which Stidam replied that he was being truthful. Stidam denied that his pants were around his thighs when Shockley walked in; he also denied that he was pulling up his pants or that he had an erection. Stidam eventually admitted during the interview that he touched J.S. in a “non-right” way, but he denied that he took J.S.’s clothes off. He denied touching J.S.’s penis. Stidam then told Felton that he knew he could not make him believe him because two other people had already told him something different. Stidam then told Felton that he began touching J.S. everywhere inside his pants and that he got an erection, and that was when Shockley came into the room and began asking if Stidam had been touching J.S. and | ¡¡threatening to kill him. Stidam said that he did not make J.S. touch him; that he was not masturbating during this time; and that he did not pull his own pants down and begin rubbing himself. However, Stidam said that he touched J.S.’s butt and felt his anus, but he denied sticking his finger or his penis into J.S.’s anus. Stidam then admitted that he stuck his finger into J.S.’s anus for about five seconds, although he could not say which finger or how far he penetrated. Stidam said that aroused him, he got an erection, he was touching himself, Shockley came in, and Stidam “flipped out.” Stidam said that he “humped” J.S. once, and that he stuck his penis inside J.S.’s butt.
After the State rested, Stidam moved for and was denied a directed verdict. Sti-dam then testified in his own defense. He stated that he was nineteen years old; had a ninth grade education, although he was in special-education classes; and understood the charges against him. He denied raping or sexually assaulting J.S. Stidam said that Shockley came into his bedroom and asked what he was doing, to which he replied, “nothing.” He said that Shockley then told him that if he found out that he had done something to his kid, he would kill Stidam. Stidam said that he continued to say “no,” but Shockley continued asking, so he left.
Stidam said that Officer Felton interviewed him in the Barry County jail; that he was in handcuffs at the time; that he remembered Felton reading him his Miranda rights; that he did not understand that he did not have to talk to Felton; and that he thought that when Felton told him that he had a right to an attorney, he meant that he had the right to an attorney when he went to court. Stidam said that he was truthful with Felton at first when he asked if he did anything and he told him “no,” but that Felton just kept on and on, | fi“torturing” him, so he finally told Felton what he wanted to hear because Felton kept telling him that he knew he had done it. Stidam testified that he did not do anything to J.S., but that he had admitted to Felton that he had touched J.S.
On cross-examination, Stidam testified that he had taken J.S. to his bedroom to watch television, and that he was in the middle of changing the channel when Shockley walked in the room. Stidam said that his pants were down a little because he was getting dressed; he said that he had an erection because he had just woken up and had to go to the bathroom. Stidam said that J.S. was on the bed watching television, and that his pants were not down. He said that he guessed that Shockley asked him if he had touched J.S. because he had an erection.
Denial of Directed-Verdict Motions
At the close of the State’s ease, in his motion for directed verdict, Stidam argued that the State had failed to prove beyond a reasonable doubt that Stidam engaged in deviate sexual activity with J.S. and that J.S. was less than fourteen years of age. He also argued that his confession was coerced and was not corroborated; that the State presented no physical evidence; that the State did not explain what “humping” meant; that statements made by J.S. were hearsay that should be excluded; and that he was not given the right to confront J.S. This motion was denied.
|7After Stidam’s testimony, in his renewal of his motion for directed verdict, Sti-dam stated that the State had failed to prove that he had raped J.S. because it had failed to prove that he engaged in deviate sexual activity and that J.S. was less than fourteen. He also argued that the only evidence presented consisted of two highly unreliable statements; that there was no physical evidence to corroborate the confession; and that Stidam’s right to confront witnesses was violated. This motion was again denied.
This court treats the denial of motions for directed verdict as a challenge to the sufficiency of the evidence. Hull v. State, 96 Ark.App. 280, 241 S.W.3d 302 (2006). In Terry v. State, 366 Ark. 441, 442, 236 S.W.3d 495, 496-97 (2006) (citations omitted), our supreme court set forth the standard of review for challenges to the sufficiency of the evidence:
We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. When reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in a light most favorable to the State and considers only the evidence that supports the verdict. We will affirm a judgment of conviction if substantial evidence exists to support it. Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Circumstantial evidence may constitute substantial evidence to support a conviction. The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. The question of whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the jury to decide. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict.
A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Ark.Code Ann. § 5-14-103(a)(3)(A) (Supp.2009). “Deviate sexual activity” is defined as “any act of sexual gratification involving |sthe penetration, however slight, of the anus ... of a person by the penis of another person; or the penetration, however slight, ... of the ... anus of another person by any body member ... manipulated by another person.” Ark.Code Ann. § 5-14-101(l)(A) and (B) (Supp.2009).
On appeal, Stidam argues that the State failed to prove that there was any penetration of J.S. by him because there was no physical evidence of penetration when he was evaluated by Debra Sensor or Dr. Kaemmerling. We cannot reach the merits of this argument because Stidam did not make the particular argument he makes on appeal to the trial court. At trial, Stidam argued that the State failed to prove that he engaged in deviate sexual activity with J.S. While penetration is one component of deviate sexual activity, Stidam did not argue below what he now argues on appeal — that if penetration had occurred, there would have been physical signs of the penetration, and because there were no physical indications of penetration, the State failed to show penetration. In order to preserve a challenge to the sufficiency of the evidence, a defendant must make a specific motion for a directed verdict that advises the trial court of the exact element of the crime that the State has failed to prove. Pratt v. State, 359 Ark. 16, 23, 194 S.W.3d 183, 187 (2004). For this reason, Stidam’s sufficiency challenge is not preserved for our review.
Admission of Child Hearsay Statements
Stidam also argues that J.S.’s statements to his father and Dr. Kaem-merling that Stidam “humped” him were unreliable and testimonial, and should have been excluded. He further argues that allowing the statements violated his right to confront witnesses.
| gCiting Arkansas Rule of Evidence 804(b)(7)(A), Stidam argues that child hearsay is presumably unreliable. Sti-dam’s reliance upon this hearsay exception is misplaced. The hearsay exceptions under Rule 804 apply only when the declar-ant is unavailable. In this case, the trial court never declared J.S. to be unavailable as a witness; therefore, the hearsay exception upon which Stidam relies has no application. Rather, the trial court found that J.S.’s statements to his father and Dr. Kaemmerling were hearsay exceptions under Rule 803(2) (excited utterance) and Rule 803(4) (statement for purpose of medical diagnosis or treatment), where the availability of the witness is immaterial. Stidam does not challenge the trial court’s determinations that the statements fall under these particular hearsay exceptions on appeal. Furthermore, because J.S. was never declared to be unavailable as a witness, Stidam could have called J.S. as a witness to cross-examine him about his statement; however, he chose not to do so. Stidam had an opportunity to confront J.S. and chose not to do so; therefore, his confrontation challenge is unpersuasive.
II. Suppression Hearing Testimony
At the hearing on the motion to suppress his confession, Officer Jeremy Fel-ton’s testimony was almost identical to his testimony at trial. However, Felton additionally testified at the suppression hearing that after he read Stidam his rights, he never told him what to say, but only told him that he wanted him to tell the truth. Felton said that Stidam seemed calm and collected during the interview, that he did not notice Stidam shaking, and that Sti-dam did not seem nervous while he was being read his Miranda rights.
ImOn cross-examination, Felton said that he had the rights form turned toward him, so he just filled in what answer Stidam gave him; although he did not have Sti-dam initial each right, Stidam did sign the rights form. Felton said that Stidam seemed to understand everything and never paused or wavered. Felton said that the interview was about forty-five minutes long; that he was not wearing a gun; and that he was not in uniform during the interview. He said that Stidam was eighteen, and Felton was unaware of Stidam’s educational background at the time of the interview. Felton admitted at the suppression hearing that he had lied to Sti-dam during the interview when he told him that he had personally spoken with J.S. and J.S.’s father. Felton said that he was insistent on getting the truth out of Sti-dam; that he had determined that Stidam was lying at the beginning of the interview; and that at the end of the interview Stidam said that he had raped J.S. Felton said that all he wanted was the truth, and that he did not want Stidam to make anything up or say something just to please him; however, Felton testified that he determined that Stidam was lying because his story did not match what Felton wanted to hear.
Dr. Robin Ross, a psychiatrist, testified at the hearing that she evaluated Stidam on April 23, 2008; that he was cooperative and was able to look at her; that he had normal speech and no abnormal motor activity; and that he was able to give appropriate answers to questions. Dr. Ross said that in Stidam’s account of the offense, he said that the deputy kept making him mad and “going on and on,” so he just thought he would agree with everything the deputy stated.
[^Finally, Media Shockley, Stidam’s mother, testified. She stated that he completed ninth grade, but his mentality was at grade-school level. She said that Sti-dam was in resource classes all through school. Stidam’s IQ was stipulated to be 80. The trial court denied Stidam’s motion to suppress his statement. Stidam now argues that this denial was in error.
Denial of Motion to Suppress Confession
Statements and confessions made in police custody are presumed to be involuntary, and it is the State’s burden to prove that such a confession was voluntary and that the defendant knowingly and intelligently waived his Miranda rights. Diemer v. State, 340 Ark. 223, 9 S.W.3d 490 (2000). In Jordan v. State, 356 Ark. 248, 256-57, 147 S.W.3d 691, 696 (2004) (internal citations omitted), our supreme court held:
In order to determine whether a waiver of Miranda rights is voluntary, knowing, and intelligent, this court looks to see if the statement was the product of free and deliberate choice rather than intimidation, coercion, or deception. In other words, did Appellant waive his rights with “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” In order to make this determination, this court reviews the totality of the circumstances surrounding the waiver including the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of the detention; the repeated or prolonged nature of the questioning; the use of mental or physical punishment; and the statements made by the interrogating officers and the vulnerability of the defendant. This court will reverse a trial court’s ruling on this issue only if it is clearly against the preponderance of the evidence.
Stidam points out that he was only eighteen at the time he gave his statement, that he had only completed the ninth grade, and that his IQ was 80. He argues that Officer Felton read his rights quickly, and that he never explained what each right meant. Stidam argues that the statement was a product of coercion and deception, as Officer Felton lied to him about 112talking to J.S. and Linus Shockley. Stidam argues that after being continually told that he needed to be honest, he finally said that he had done something just so the interview would end. He also contends that his statement indicates a complete lack of knowledge, as he did not know what finger he used to penetrate J.S.’s anus, how far he inserted it, or how far he inserted his penis in J.S.’s anus.
Stidam was advised of his constitutional rights prior to the beginning of the interview, he signed the rights form indicating that he understood those rights, and he agreed to talk to Officer Felton without an attorney present. Officer Felton testified that he was not in uniform or wearing a gun when he interviewed Stidam, and that Stidam did not appear to be nervous during the interview. The interview lasted only forty-five minutes, and in his statement, Stidam admitted that he had touched J.S. in a “non-right” way and that he had inserted both his finger and his penis into J.S.’s anus.
A low intelligence quotient, by itself, will not render a waiver of the Fifth Amendment privilege against self-incrimination involuntary. Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989). The fact that Stidam was eighteen, had an IQ of 80, and had only a ninth-grade education does not warrant suppression of his statement. See Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). Although he was only eighteen, the testimony was that Stidam was read his constitutional rights, waived them, and agreed to speak with Officer Felton. The interview was not unduly lengthy, and there was no evidence presented that Stidam was promised anything in return for making a statement or that he was coerced into making a statement. While it is true that Officer Felton lied to Stidam about having spoken with J.S. 118and Linus Shockley, law-enforcement officers are permitted to use psychological tactics and coercive statements so long as such are not calculated to obtain an untrue statement and the defendant’s will is not totally overborne. Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998). Here, although Officer Felton told Stidam that he had talked to J.S. and Linus Shockley when he had in fact not done so given the totality of the circumstances, we cannot say that Stidam’s statement was involuntary or coerced, or that Stidam did not knowingly and intelligently waive his Miranda rights.
Affirmed.
GLADWIN and KINARD, JJ., agree.
. Although Stidam made directed-verdict motions with regard to both the second-degree sexual assault allegation and the rape allegation at trial, on appeal he only challenges the sufficiency of the evidence to support the rape conviction; therefore, any sufficiency argument with regard to the second-degree sexual assault conviction has been waived. | [
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DAVID M. GLOVER, Judge.
| Appellant, Theodis Smith, was convicted by a jury of first-degree murder in the death of his three-year-old niece, L.D., who was living with appellant and his wife, Angela, in their home at the time of her death. He was sentenced to twenty-five years in prison. On appeal, he argues that the trial court erred in failing to grant his motions for directed verdict. We affirm the conviction.
The Testimony
At trial, Kimberly Ratliff, a neighborhood friend, testified that on November 29, 2005, she went to appellant’s home after lunch to visit Angela; that before she and Angela left to pick up their other children from school, Angela gave L.D. a bath and got her dressed; and that when they left around 2:30 p.m., L.D. remained at the house with appellant and she Rseemed to be doing fine. Ratliff said that on the way home, appellant called Angela and told her to come home. Angela dropped Ratliff off, but soon returned to Ratliff’s home holding L.D. and telling Ratliff she needed help because L.D. was not breathing. Ratliff testified that at that time, she believed L.D. was still alive because when she began CPR efforts, there was a mucus-type substance coming out of L.D.’s mouth. According to Ratliff, she wrapped L.D. in towels from her dryer because L.D. was cool to her touch; then she and Angela took L.D. to the hospital. Ratliff testified that she never discussed what happened with Angela because Angela kept saying that she did not know what had happened.
Ratliff testified that while they were on the way to the hospital, she received a phone call from appellant, and she gave the phone to Angela, but she did not know what appellant said to Angela. Ratliff said that when they got to the hospital, L.D. was taken by hospital staff; that she and Angela were placed in a private room; that when the doctor came to see them, Angela did not tell him what had happened; but that Angela told the police officer who arrived at the hospital that L.D. had fallen off a trampoline and hurt herself. Ratliff said that she initially agreed with that story, but that she eventually told the officer that it was a lie. Ratliff learned that L.D. died while she was still at the hospital, but she said that she did not know what caused L.D.’s death.
Rachel West, another friend of the family, testified that she saw appellant and Angela about once a week. She said that on November 29, 2005, Angela called her about 2:30 p.m.; that she went to Angela’s house about forty-five minutes later; that when she arrived, Angela was alone and was upset and crying; that appellant drove up in his mother’s vehicle; and that |3she noticed that Angela seemed to be more upset after appellant arrived. West testified that she did not speak to appellant as she left, but as she walked past him and Angela, she heard appellant tell Angela, “It’s too late. She’s already dead.” According to West, when she walked by the car, she saw L.D. in the backseat, and it looked as though she was sleeping. West said that when appellant made the statement, he was acting “agitated,” and she thought that he was just being cruel to Angela; however, she said that when she learned the next morning that L.D. had died, she went to the police department to give a statement.
Angela Smith’s testimony differed in some respects from the testimony of Kimberly Ratliff and Rachel West. She stated that L.D. had lived with her and appellant off and on for about two months. She said that on November 29, 2005, Ratliff had come to her home before lunch; that L.D. was at the house during that time; that appellant was there sleeping; that before she and Ratliff left to pick up the children at school, she bathed and dressed L.D., woke appellant up, and left L.D. at the house with him; and that at that time, L.D. was playing and acting normal. She testified that while she was picking up the children, appellant called and told her to call his sister and to hurry up and get home. Angela said that when she arrived home, appellant was holding L.D.; that it appeared that L.D. had had a seizure; that L.D. was “out of it”; and that it was obvious that there was a problem. Angela stated that appellant did not say anything, but he put L.D. in the car. Angela denied that Rachel West had been in the house, and she denied that appellant told her that L.D. was dead or that it was “too late.” Angela testified that appellant told her to take L.D. to the hospital, but he did not get in the car with her.
14Angela also denied that she took L.D. into the Ratliff house, testifying instead that Ratliff came to the car and then took L.D. into the house. Next, Angela denied that Ratliff gave L.D. CPR, stating instead that she was the one who gave CPR and that Ratliff just sat there and let her choke on the way to the hospital. Angela denied that she told hospital personnel that L.D. had fallen off a trampoline, but instead told them that she thought L.D. was having a seizure. Angela further stated that she did not talk to appellant until she was already at the hospital, and she denied that appellant had told her what to say. Angela said that when she gave L.D. a bath, she was acting normal, and she did not notice bruises on L.D.’s body or face, only old welts on the back of her legs and a scratch on her back. Angela denied that she or appellant ever whipped L.D.
Randi Marshall, a certified nursing assistant, testified that she knew appellant and Angela Smith through Kim Ratliff, and that she knew L.D. from the times L.D. had been at Ratliffs house playing. On the day L.D. died, Marshall had gone to Ratliffs house to pick up her daughter; when she arrived, she saw L.D., saw that she was unconscious, and saw that her eyes were rolled back in her head. Though Marshall did not know whether L.D. was breathing, she stated that she told Angela and Ratliff that they needed to take her to the hospital. Marshall established that when she left the house, she saw appellant walking down the street, she asked him what was happening, and he responded that he did not know. Appellant asked to use her phone; she did not know who he was talking to on the phone, but she heard him ask “if she had called her mom and dad yet” and something to the effect of “did she say what I told her to say” or “tell her to say what I told her to say.” Then Marshall Rstated that appellant handed her phone back to her and continued walking down the street.
David Ellington, a Pine Bluff police officer, testified that he responded to a call on November 29, 2005, at Jefferson Regional Medical Center involving a child who had arrived at the hospital unconscious. Upon arrival, Ellington visited with Angela, who told him that she had taken the children to Ratliffs house and that L.D. had fallen outside and was not moving. Pine Bluff Police Sergeant Ricky Hill also responded to the hospital regarding the death of L.D. He said that he was told to go to appellant’s house to look for where L.D. had supposedly fallen off a trampoline, but that he did not find a trampoline there.
Hill interviewed appellant at the police station regarding L.D.’s death. He said that appellant began the interview acting normal, but once the taped interview began, appellant’s demeanor changed and he blurted out things like he had “f* * *ed up” and he had “done things that he can’t fix.” Hill specifically asked appellant about L.D., and appellant told him that he had whipped L.D. with a belt for wetting the bed; that she fell down on the floor; that he told her to get up and go take a shower; that after that, she came back and fell on the floor again; that she was having trouble breathing; and that when she did not get up off the floor, he scooped her up, put her in the car, and left. Hill recalled that appellant told him that he saw a state trooper, so he ran a red light, thinking that the trooper would pull him over and would help him; however, when the trooper did not pull him over, appellant turned around and drove back to the house. Hill testified that appellant said that L.D.’s breathing had changed at that point; that when he arrived at the house, he told Angela to call someone for help; that Angela left with L.D.; and that he stayed at the house.
| (¡Sherry Wheeler, a registered nurse at Jefferson Regional Medical Center, testified that Angela told her that L.D. had collapsed outside while playing near a trampoline and would not get up, and when she checked on her, L.D. was not breathing. She said that Angela told her that she had tried to breathe for L.D.; that L.D. had coughed up mucus; that they tried to perform CPR on the way to the hospital; and that L.D. appeared to be choking on something. Wheeler testified that Angela said that L.D. was on no medication, had no medical history, and had no known allergies. Wheeler stated that she took this information to the ER physician. She also testified that a rape kit was collected for L.D., and that there were hairs in L.D.’s groin area that appeared to be pubic hairs, which were collected and placed in an envelope.
Dr. Janet Curry, the ER physician who attended L.D. on the date of her death, testified that when L.D. was brought in, she was in full arrest, meaning that she did not have an adequate heartbeat, did not have a pulse, was not breathing on her own, and was cold and blue. Dr. Curry testified that L.D.’s core temperature was 82.8 degrees, and that a normal core temperature would be about 99.6 degrees, which indicated that L.D. had been cold for a long period of time. Dr. Curry noted that L.D. had bruising around the lips; a hematoma above the right eye; semicircular injuries on her right forearm along with abrasions in that area; abrasions on the side of her neck; burns on her back that were mostly old and healing, but one with a small amount of abrasion; and an avulsion (missing tissue) just below the left great toe.
17Once L.D.’s clothes were removed, Dr. Curry said that she noted hairs in L.D.’s genital area, which she specifically identified as pubic hairs. Dr. Curry testified that she would not typically expect to find pubic hairs in the genital area of a three-year-old child. She noted that L.D.’s genital area appeared to be very damaged, with the skin rubbed off in places; abrasions to the anterior portion of the perineum; the vaginal opening significantly enlarged with bloody mucus material running out of it; and her rectal area appeared to be dilated. Dr. Curry testified that she performed a rape kit on L.D., including the collection of rectal and vaginal swabs, and the pubic hairs found on L.D.
Pine Bluff Police Department crime-scene technician Cathy Ruhl testified that she collected evidence from appellant’s house after L.D.’s death, including a blue/ green quilt and a blue/gray print comforter taken from L.D.’s bed, and a white down comforter from a mattress in the living room.
Edward Vollman, a forensic serologist at the state crime lab, testified that he did not find any semen on the vaginal or rectal slides and swabs, nor did he find semen on the perianal swabs, but that he did find semen on the pubic swabs, as well as on the blue/gray print comforter taken from L.D.’s bed. Vollman said that he found blood but no semen on the blue/green quilt taken from L.D.’s bed, and both blood and semen on the white down comforter taken from the living room.
Chantelle Taylor, a trace-evidence analyst at the state crime lab, testified that the hair found on L.D. was both head hair and pubic hair, that the head hair was microscopically 1similar to L.D.’s, and that the pubic hair was microscopically similar to the known pubic-hair sample of appellant.
Mary Robnett, the CODIS administrator for Arkansas and a DNA analyst at the state crime lab, testified that the semen stains found on the white down comforter and on the blue/gray print comforter taken from L.D.’s bed were from appellant, and that he was the only person in the world who could have that DNA profile. She said that the white down comforter had a mix of more than one individual’s DNA on it, that appellant could not be excluded from that mixture, and that a Y-chromosomal DNA profile matched appellant, but that it was paternally related, so it would also match appellant’s father or brothers. She said that there was semen on the pubis swab taken from L.D., but that the only DNA profile was consistent with L.D. She explained that sometimes with pubis swabs, the male DNA is masked and overpowered by the female DNA, and there is not enough male DNA to obtain a profile. Robnett stated that she was also able to obtain a partial Y-chromosome DNA profile from the pubic hair submitted in the rape kit, and it matched appellant’s Y-chromosomal DNA profile, but that the Y-chromosome DNA profile would also be the same for his father or brothers.
Dr. Daniel Konzelmann, an associate medical examiner at the state crime lab, performed L.D.’s autopsy. During the autopsy, he noted multiple bruises, scrapes, and superficial cuts on L.D.’s face and neck area, including bruises across the right side of the forehead, on the right cheek, and on the left lower cheek and upper neck areas. He noted that upon reflecting the scalp, there were multiple bruises in the subcutaneous tissue that were |9not visible on the skin itself. There were scrapes and discolorations on the upper part of the thorax, as well as some older injuries that were healing. He found multiple scrapes, bruises and scars of varying shapes and sizes on the abdomen area, and the genitalia had what appeared to be a clear, dried stain over the pubis area. He stated that the mons overlying the upper part of the labia had a reddish discoloration to them, and there were two small lacerations of the hymenal ring, an abrasion inside the labia minors, and multiple small punctuate hemorrhages surrounding the urethral orifice. He testified that when the hymenal ring is lacerated, it implied that there had been penetration, although he could not say by what. He also said that the abrasions of the inner labia indicated that something had been in that area, but he could not say what it was. He noted there were numerous nondescript scars on the front and back of L.D.’s thighs, as well as linear and curved discolorations over the lateral lower legs, thighs, and buttocks. There were two bruises over the back of the right lower leg that were visible on the skin’s surface, as well as a bruise over the mid-left lower leg, an irregular large bruise over the front of the right thigh, and a bruise over the front of the right hip. Dr. Konzelmann found five bruises in the tissue covering the skull. He explained that in darkly pigmented children (L.D. was African-American), bruising of underlying tissue can be difficult to see on the skin, so in cases where abusive trauma is suspected, incisions are made in the arms, legs, belly, back, and buttocks to look for underlying injuries that are not obvious from the skin itself. According to Dr. Konzelmann, L.D.’s upper left arm, when incised, indicated bruising in the tissues underlying the skin, and it continued from the upper back of the arm to the lower part of the arm, where the bleeding extended into the muscle | initself. He stated that the bruises were caused by a blunt-force type of injury, and that it required significant force. Pursuant to his examination, the upper right arm showed three areas of bruising, and the buttocks and lower back indicated extensive bruising, as well as the right lower leg, all consistent with blunt-force trauma. He said that these injuries were not typical injuries associated with parental discipline or falling off a trampoline one time.
Dr. Konzelmann also found that L.D. had suffered a closed-head injury; when he’ removed the skull cap, he found a thin subdural bleed over the surface of the brain, which indicated that a significant blow had occurred that ruptured blood vessels, and that L.D. had died before significant blood could collect in that area. He testified that he also found bleeding in the central brain spaces called the lateral ventricles, which are normally filled with clear spinal fluid, and he offered that this was from a significant blunt-force injury. He also found thin, black blood clots over the back of the right occipital brain lobe, which was another area of subdural bleeding.
It was Dr. Konzelmann’s opinion that a child who suffered these blunt-force trauma injuries would not have been able to continue to play all day, that she would have become lethargic and eventually passed out. He said that the manner of death was a homicide, and that the cause of death was a closed-head injury, with a contributory cause of multiple recent and healed cutaneous injuries. He said that the head injury did not occur in a vacuum, and the number of injuries and the fact that some were recent and some were scarred was evidence that this was an ongoing process and not just a one-time incident. He was of the ^further opinion that his findings and the examination of her genitalia were consistent with sexual assault.
The State rested after Dr. Konzelmann’s testimony. Appellant moved for a directed verdict, which was denied. Appellant recalled Ratliff to the stand to question her about whether she had a trampoline, to which she responded that she did. Appellant then rested and renewed his directed-verdict motion at the close of the evidence, which was again denied. Appellant now brings this appeal.
The Sufficiency Arguments
Appellant argues that the trial court erred in denying his motions for a directed verdict. He argues that there was insufficient evidence linking him to the crime of murder in the first degree, and there was insufficient evidence that he was involved in the offense for which he was tried and convicted. We disagree.
A person commits first-degree murder if he knowingly causes the death of another person fourteen (14) years of age or younger at the time the murder was committed. Ark.Code Ann. § 5-10-102(a)(3) (Repl.2006). In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence, direct or circumstantial. Dunn v. State, 371 Ark. 140, 264 S.W.3d 504 (2007). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Circumstantial evidence may constitute substantial evidence to support a conviction; guilt can be established without direct evidence, and evidence of guilt is not less because it is | ^circumstantial. Id. For circumstantial evidence to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide, and the jury’s determination will not be disturbed unless the jury reached its verdict using speculation and conjecture. Id. The weighing of evidence and witness credibility are matters left solely to the discretion of the jury. Id.
Appellant argues that the State’s case was premised on five points of evidence that do not link him to the crime: (1) semen collected from L.D.’s pubis; (2) semen found on the comforters at home; (3) a pubic hair found on L.D.’s genitalia; (4) a statement purportedly made by appellant that she [L.D.] was already dead; (5) and a second statement purportedly made by appellant to his wife to say what he told her to say.
Appellant first argues that the State was unable to prove that the semen on L.D.’s body was his semen. He also argues that the fact that semen was found on comforters located in his home proved nothing criminal. He then contends that the pubic hair matched either him or one of his paternally related male relatives, such as his father or his brothers, who could not be eliminated, and that the hair could have been transferred indirectly from any number of sources. He next contends that the statement that L.D. was already dead could have indicated that he believed her to be dead after witnessing a seizure, and that the statement did not connect him to the murder. Appellant finally argues that the statement that he told his wife to say what he told her to say did not link him to any crime, and that there was evidence that | ^neither he nor his wife ever laid a hand on L.D. We find none of these arguments meritorious.
Angela had bathed and dressed L.D. right before she left to pick up the other children from school. Angela’s testimony was that there were no bruises or scratches on L.D. except for some old welts on the back of her legs and one scratch on her back. L.D. was left in appellant’s sole care, and according to Angela and Kim Ratliff, L.D. was fine when they left. Appellant called Angela while she was picking up the children and told her to hurry home, and L.D. was unconscious when she arrived. Rachel West testified that appellant was not at the house when she arrived, but came home soon after, and she heard appellant tell Angela that it was too late, that she was already dead. West then saw L.D. in the back seat of the vehicle appellant was driving, and she was not moving. After L.D. had been taken to the hospital, appellant borrowed Randi Marshall’s phone, and Marshall overheard him comment “tell her to say what I told her to say.” Angela told people at the hospital that L.D. had fallen outside while on a trampoline, something that Angela denied saying.
L.D. was cold and blue upon her arrival at the ER, and she did not have a pulse and was not breathing on her own. Her low core temperature indicated that she had been cold for a long time. A rape kit indicated pubic hair on L.D.’s genitalia, and that pubic hair was found by Y-chromosome profiling to match appellant and any of his paternally related male relatives. However, there was no testimony that appellant’s father or his brothers had been around L.D. Furthermore, L.D. had taken a shower right before Angela left her with appellant, and the pubic hair was found on L.D.’s genitalia. Semen was found on the swab |Mfrom L.D.’s pubis; while it was not conclusively matched to appellant, again, L.D. had just taken a shower right before being left alone with appellant. Furthermore, appellant’s semen had been found on a comforter on L.D.’s bed.
The trauma to L.D.’s body was immense, including both new and old injuries. The medical examiner testified that L.D. could not have sustained such blunt-force trauma injuries and continued to play like a normal child, that she would have become lethargic and passed out. The medical examiner was also of the opinion that L.D. had been sexually assaulted.
Furthermore, upon being questioned at the police station, appellant became agitated and nervous and stated that he had “f* * *ed up” and “done things he could not fix.” He admitted that he had whipped L.D. with a belt for wetting the bed and that she had fallen down and had trouble breathing. Although he said that he put L.D. in the car and had gone for help, he turned around and went home again, and Angela was the person who took L.D. for help.
A jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002). While all of this evidence is circumstantial, taken together it constitutes substantial evidence that appellant was the person who killed L.D. See Burley, supra (sufficient evidence that appellant committed second-degree murder when she was sole care giver of child during time injuries were inflicted).
The “Other Causes" Argument
115Appellant further argues that there are other causes that could have led to L.D.’s injuries, such as falling on her own; suffering previous seizures and a seizure on the day in question; falling from a trampoline; and rough-housing with her brother. We need not address these multiple contentions, as appellant never made this argument below and it is therefore not preserved for appeal. Stone v. State, 371 Ark. 78, 263 S.W.3d 553 (2007). Furthermore, appellant’s attorney conceded during his directed-verdict motion that the State showed ample proof that L.D. “died from blunt-force trauma caused by another person.” Appellant cannot now argue in good faith that L.D. died from an accident or other cause.
Affirmed.
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ROBERT J. GLADWIN, Judge.
| [Appellant R.J. Chiodini sued his neighbor, appellee David Lock, claiming that Lock constructed a fence that breached a long-accepted boundary line and encroached on Chiodini’s land. Following several discovery disputes and the denial of Chiodini’s motion for summary judgment, the circuit court held a bench trial and ruled against Chiodini. In this pro se appeal, Chiodini argues that the court erred in its discovery rulings, in denying his motion for summary judgment, and in entering the final decree. We affirm and remand with instructions for the court to amend its final decree to include a specific legal description of the boundary at issue.
|2I. Background facts
Chiodini and Lock each own large tracts of land in Stone County. Lock’s family has owned his land for over fifty years. Chiodini’s property, which lies south of Lock’s, was previously owned by the Ira Thomas family, who sold it to Luke Elliott in 1995. Elliott sold the land to Chiodini in 2003. For many years, parts of an old fence existed near the properties’ common border. In the mid-to late 1990s, Lock built a fence that ran somewhat parallel to, but south of, the old fence line. According to Lock, he obtained a survey and built the new fence on the actual border line, which his neighbor, Luke Elliott, agreed to. Later, Lock fenced another area near the common border, creating a small area for hay storage.
When Chiodini bought Elliott’s property, he walked the area with his GPS unit and concluded that there were discrepancies between the placement of Lock’s new fences and the true border represented by the old fence. He therefore determined that Lock’s new fencing encroached on approximately three acres of his land. On December 21, 2005, Chiodini sued Lock seeking ejectment, removal of the new fences, damages for trespass, an injunction, and an order establishing a boundary by acquiescence in accordance with the old fence line. Several discovery disputes ensued, and the circuit court ruled in Lock’s favor on all of them. Chiodini then filed a motion for summary judgment, which the court denied. The case went to trial and the circuit judge, sitting as fact-finder, refused to establish a boundary by acquiescence. Chiodini filed a timely notice of appeal, and this appeal followed.
| C.II. Discovery rulings
Chiodini served Lock with two sets of discovery during the first four months of the case. The first set was served on December 30, 2005, along with the summons and complaint, and it consisted of forty requests for admission, twenty-one interrogatories, and eight requests for production of documents. The second set, consisting of twenty-five requests for admission, fifteen interrogatories, and eight requests for production of documents, was served in late April 2006. After Lock responded to some of the discovery, Chiodini filed numerous motions, asserting that the responses were late or inadequate. Chiodini asked the court to deem the requests for admission admitted; to compel Lock to provide additional answers to the interrogatories and requests for production; and to prohibit Lock from introducing at trial matters contained in his discovery responses. Judge Tim Weaver conducted several hearings and issued bench rulings on Chiodini’s motions but recused before any written orders could be entered. Thereafter, Judge Stephen Choate heard the case and entered a series of orders on August 20, 2007, denying Chiodini’s motions and prohibiting him from conducting further discovery. Chiodini contends that the court’s rulings were in error and that Lock should be sanctioned for discovery violations. Our standard of review is well established. The trial court has wide discretion in matters pertaining to discovery and a trial court’s decision will not be reversed absent an abuse of discretion. Parker v. S. Farm Bureau Cas. Ins. Co., 326 Ark. 1073, 935 S.W.2d 556 (1996). An abuse of discretion occurs when discretion is applied thoughtlessly, without due consideration, or improvidently. Oldham v. Morgan, 372 Ark. 159, 271 S.W.3d 507 (2008).
A. First set of discovery
Answers to Chiodini’s first set of discovery were due on February 13, 2006. See Ark. R. Civ. P. 33(b)(3), 34(b)(2), and 36(a) (2009). On January 26, 2006, Lock’s attorney, Mitch Cash, mailed responses to the interrogatories and requests for admission to Chiodini. The responses show that Lock answered twenty interrogatories and objected to one and that he denied those requests for admission asking him to characterize the old fence line as a boundary between the properties. On March 3, 2006, Chiodini notified Cash that the responses he received were unsigned. Cash quickly forwarded signed copies, explaining that he “was having health problems at the time” and had undergone surgery on January 27, 2006.
On April 20, 2006, Chiodini filed a motion to compel more responsive answers to two of the interrogatories. Attorney Cash was in the process of withdrawing from the case, but Lock’s new attorneys filed additional responses on May 9, 2006. Chiodini then filed another motion to compel, complaining that the responses did not repeat each interrogatory before answering as required by Ark. R. Civ. P. 33(b)(2) and that the responses were signed by Lock’s attorney rather than by Lock himself. Judge Weaver held a hearing on June 28, 2006, and directed Lock’s attorneys to “have him sign everything.” Five days after the hearing, Lock filled “Substituted Responses to Plaintiffs 1st Set of Interrogatories,” which contained answers or objections to all twenty-one interrogatories, signed and verified by Lock (although the verification mistakenly referenced the requests for admission).
On July 12, 2006, Chiodini again asked the court to order Lock to sign and verify his original answers to interrogatories. He also asked that the requests for admission be deemed admitted based on Lock’s failure to provide signed responses within forty-five days of service. With regard to the admissions, Lock answered that attorney Cash’s failure to send signed responses on January 26, 2006, was the result of Cash’s illness, which constituted excusable neglect. Judge Weaver held a hearing on the motions, but the excerpt of the hearing, which Chiodini has provided as the record on appeal, does not reveal whether the judge ruled on the motions. However, when Judge Choate took over the case, he denied Chiodini’s motions, finding that Judge Weaver ruled from the bench that Lock’s interrogatory responses were “complete, adequate, and in compliance with [Rule 33]” and that Lock’s responses to the requests for admission were neither deficient nor late.
We first address Chiodini’s argument regarding the interrogatories. He contends that Lock was required to sign and verify the original answers to interrogatories and not merely provide new, substituted responses. We disagree. Arkansas Rule of Civil Procedure 26(e) (2009) permits a party to “amend” discovery responses, and in fact imposes a duty to do so if the party learns that the responses are incomplete or incorrect. Furthermore, Chiodini has not convinced us that receiving substituted answers to interrogatories more than two years |fibefore trial affected his ability to conduct additional discovery or to prosecute his case. Chiodini cannot obtain reversal unless he can demonstrate prejudice resulting from the substituted responses. See generally Keenan v. Am. River Transp. Co., 304 Ark. 42, 799 S.W.2d 801 (1990). Compare Coulson Oil Co. v. Tully, 84 Ark.App. 241, 139 S.W.3d 158 (2003) (affirming a circuit court’s imposition of sanctions where the defendant supplemented a deliberately untrue response one month before trial, which impeded the plaintiffs ability to depose a witness). We therefore find no error on this point.
Chiodini argues next that the circuit court erred in not deeming the requests for admission admitted. A requested matter is admitted unless, within thirty days after service of the request (or within forty-five days if the request was served with the complaint), the party to whom the request is directed serves on his opponent a written response or objection, signed by the party or his attorney. Ark. R. Civ. P. 36(a). Clearly, Lock’s initial, unsigned re- sponses did not comport with Rule 36(a)’s requirement that responses be signed by the party or his attorney. See Womack v. Horton, 283 Ark. 227, 674 S.W.2d 935 (1984). However, a circuit court may, upon motion, grant additional time to answer requests for admission, even if the time for answering has expired, based on excusable neglect. See Ark. R. Civ. P. 6(b)(2) (2009). See also Borg-Warner Acceptance Corp. v. Kesterson, 288 Ark. 611, 613, 708 S.W.2d 606, 607 (1986) (holding that Rule 6(b)(2) applies to requests for admission and 17provides “broadly for extensions of time to respond in instances of excusable neglect”). In the case at bar, Lock pleaded excusable neglect based on his attorney’s illness during the time he sent the unsigned responses.
Our supreme court has not favored a party’s filing late responses in instances involving ordinary office distractions, Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987), or secretarial error. Barnett Rest. Supply, Inc. v. Vance, 279 Ark. 222, 650 S.W.2d 568 (1983). However, the particular facts of each case must be examined and, when the facts warrant, acceptance of late responses is required. Gibson v. Gibson, 87 Ark.App. 62, 185 S.W.3d 122 (2004); Belcher v. Bowling, 22 Ark.App. 248, 738 S.W.2d 804 (1987). Our court has also taken into consideration whether the party who propounded the requests was prejudiced by a late response. See Belcher, 22 Ark.App. at 251, 738 S.W.2d at 806.
In the present case, we cannot say that the circuit court abused its discretion in refusing to deem the requests admitted based on a late response. Counsel’s illness, which required surgery on the day after the unsigned responses were sent, could be considered by the court as a legitimate, extraordinary distraction leading to excusable neglect. Furthermore, counsel did not simply ignore the requests or demonstrate a lack of diligence; he responded to the requests in a timely fashion but simply neglected to sign them. Upon being told of the omission, he immediately sent signed responses. Compare Adams v. Moody, 2009 Ark. App. 474, 324 S.W.3d 348 (affirming a finding of a lack of excusable neglect where a party claimed illness and filed several motions over a two-month period seeking extensions of time to file Ran answer but did not file an answer during the two-month period). Moreover, we cannot see how Chiodini was prejudiced by the unsigned responses, given that he received signed copies of the responses very early in the lawsuit and only a few days after he notified Cash of his mistake.
Chiodini also argues that Judge Choate erred in finding that Judge Weaver heard the motion to deem the requests admitted and issued a bench decision on the motion. We cannot ascertain all that occurred below with reference to Judge Weaver’s rulings because Chiodini designated only excerpts from Judge Weaver’s hearings. It is the appellant’s burden to bring up a record sufficient to demonstrate error. Judkins v. Duvall, 97 Ark.App. 260, 248 S.W.3d 492 (2007). In any event, we view Judge Choate’s ruling as correct on the merits.
B. Second set of discovery
Chiodini propounded a second set of discovery in April 2006. His requests for production sought, among other things, copies of the fronts and backs of certain checks and receipts or invoices from establishments that sold fencing material and had transacted business with Lock be tween 1995 and 2001. Within thirty days, Lock provided copies of the fronts of the requested checks. However, he objected that the other materials were “too numerous to copy.” Lock did not answer the interrogatories or requests for admission within thirty days. Citing Lock’s late or nonresponsive answers, Chiodini filed motions to compel regarding the requests for production and the interrogatories, and he asked that the requests for admission be deemed admitted.
IsAt the June 28, 2006 hearing conducted by Judge Weaver, Lock’s attorneys provided Chiodini with copies of the backs of the requested checks and promised that Chiodini could view the materials that were too cumbersome to copy within a few days. They also promised that Chiodini would have responses to the interrogatories within a few days. Shortly after the hearing, Lock filed “Substituted Responses to Plaintiffs 2nd Set of Interrogatories” and provided Chiodini with 152 documents contained in the attorneys’ files. Judge Choate would later rule that Lock’s answers to the interrogatories were “complete, adequate, and in compliance with [Rule 83]” and Lock’s provision of the requested documents rendered any nonconformity with the discovery rules moot.
On appeal, Chiodini argues that Lock’s answers to the interrogatories were “an attempt to replace previously verified responses and change answers.” However, the record indicates that, despite Lock’s designating his answers to the second set of interrogatories as “substituted,” he filed only one set of answers to the second set of interrogatories. Chiodini also argues that Lock’s answers to both the first and second set of interrogatories were unresponsive. He points out that some of the answers simply cited a long narrative set forth in a previous answer and that other responses did not provide the information requested. We are not impressed with many of Lock’s responses and agree that some of them were less than forthcoming. However, again, Chiod-ini has not convinced us that he was prejudiced by these alleged discovery violations or that reversal is warranted. As the appellant, he bears the burden of demonstrating reversible error. Arrow Int'l, Inc. v. Sparks, 81 Ark.App. 42, 98 S.W.3d 48 2003. Likewise, his complaint that he received a “jumble of documents” in response to his requests for production fails to persuade, given that the record does not reveal precisely what documents he received or how the responses affected his ability to conduct the lawsuit. Chiodini cites Calandro v. Parkerson, 333 Ark. 603, 970 S.W.2d 796 (1998), where our supreme court affirmed the circuit court’s imposition of sanctions on a plaintiff who gave evasive and nonresponsive answers to discovery. However, in its affirmance, the supreme court deferred to the circuit court’s discretion on matters involving discovery sanctions, and we likewise defer to the circuit court in this case.
Regarding the requests for admission, Judge Weaver refused to deem them admitted because Chiodini had not filed the requests with the circuit clerk as required by Ark. R. Civ. P. 36(c). However, Judge Weaver ordered Lock to answer the requests within five days, and Lock did so. Later in the proceedings, Judge Choate also refused to deem the requests admitted, ruling that the time for Lock’s response did not begin running until Chiodi-ni filed the requests.
Rule 36(a) of the Arkansas Rules of Civil Procedure provides that each matter contained in a request for admission is admitted unless answered or objected to “within thirty days after service.” Rule 36(c) provides that requests for admission “must be filed in a separate document so titled and shall not be combined with interrogatories, document production requests, or any other material.” See also Ark. R. Civ. P. 5(c)(1) (2009) (stating that all papers subsequent to the complaint, which are required to be served on a party or his attorney, shall |nbe filed with the clerk of the court either before service or within a reasonable time thereafter). The circuit court interpreted Rule 36(c) to mean that the time for responding to requests for admission runs from the date the requests are filed. Chiodini claims that the filing requirement in Rule 36(c) is independent of Rule 36(a)’s statement that requests for admission are deemed admitted unless answered or objected to “within thirty days after service.”
Chiodini presents an interesting question. However, we decline to rule on the precise issue of whether the response time under Rule 36 runs from the date of service or the date of filing. Instead, we conclude that, under the circumstances of this case, the circuit court did not act improvidently, thoughtlessly, or without due consideration in its resolution of the situation. We note first that the requests would have reached attorney Mitch Cash at approximately the same time he was seeking to withdraw from the case. Lock obtained new representation, and it was unclear at the hearings if those attorneys had received the requests or, if so, when they received them. Further, Chiodini was unquestionably required to file the requests for admission under Rule 36(c) and Rule 5(c)(1). He neglected that requirement at his peril for more than sixty days. He therefore should not be heard to complain that the circuit court exercised its discretion to extend Lock’s response time for an additional five days from the hearing date.
112Chiodini also contends that some of Lock’s responses were insufficient because they simply “denied” the request without explanation. Rule 36(a) provides that responses shall “specifically admit or deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter.” Under this rule, “denied” is an acceptable response. See Watkins & Newbern, § 23:2, at 468.
C. Protective order prohibiting further discovery
On July 3, 2006, Lock filed a motion for a protective order concerning Chiodini’s attempt to subpoena a witness, Ira Thomas, for deposition. The motion recited that the court had admonished Chiodini at the June 2006 hearing about making it difficult to schedule a deposition and that, two days after the hearing, he subpoenaed Thomas, an elderly and infirm resident of Mountain View, to attend a deposition in Heber Springs. The motion also asserted that Chiodini appeared at Thomas’s home, asked him to sign a piece of paper, and became “demanding” when Thomas refused. Further, the motion stated that Chiodini persisted in filing motions to compel despite Lock’s provision of documents, interrogatory responses, and responses to requests for admission as or dered by the court. Lock sought a protective order that, among other things, required the Thomas deposition to be held in Mountain View, prohibited Chiodini from further discovery without making application to the court, and shielded Lock from “further annoyance, undue burden, and undue expense.” Judge Weaver | iasigned an order that scheduled Mr. Thomas’s deposition in Mountain View rather than Heber Springs and prohibited Chiodini from seeking further discovery. The order was filed later in the case.
Chiodini argues, without elaboration, that the court’s order hindered him from obtaining meaningful discovery in preparation for trial. However, at the time Judge Weaver signed the order, Chiodini had filed two sets of discovery and had received responses. His argument does not reveal what more he would have done, had the ban not been in place. Furthermore, the court’s order apparently arose out of a situation in which Chiodini was harassing an elderly witness and had continued to file motions to compel and motions for reconsideration, despite having received responses to discovery and court rulings on all discovery matters. We therefore see no abuse of discretion warranting reversal.
Based on the foregoing, we affirm the circuit court’s discovery rulings. In light of our holding, we deny Chiodini’s request to remand the case for imposition of sanctions against Lock.
III. Denial of summary judgment
On May 9, 2008, Chiodini filed a motion for summary judgment, arguing that the old fence line constituted a border by acquiescence as a matter of law. The circuit court held a hearing on the motion, during which Lock called witnesses to testify. Chiodini objected, arguing that it was improper for Lock to supplement his response to the summary-judgment motion with live testimony and that he was not prepared to cross-examine witnesses. The [ ucourt overruled Chiodini’s objection and allowed Lock and his mother to testify that the old fence did not represent a boundary line and that the new fence constructed by Lock was within the true boundary line. At the conclusion of the testimony, the court denied Chiodini’s motion for summary judgment, ruling that fact questions remained to be decided. The court also stated that, even if it was wrong to allow live testimony at the hearing, any error was harmless because the testimony revealed nothing that was not already a part of the record in the form of affidavits. Chiodini argues for reversal that 1) the circuit court improperly allowed oral testimony at the summary-judgment hearing, and 2) Lock failed to meet proof with proof in responding to the motion for summary judgment.
Chiodini is correct that Ark. R. Civ. P. 56 (2009) does not permit supplementation by oral testimony of the pleadings, depositions, admissions, interrogatories, affidavits, and so forth, that a court may consider in ruling on a motion for summary judgment. Mathews v. Garner, 25 Ark. App. 27, 751 S.W.2d 359 (1988). However, as the court itself observed, the testimony from David Lock and his mother revealed little more than what was contained in their affidavits attached to Lock’s response to the motion for summary judgment. Our review of the affidavits bears this out. We therefore see no ground for reversible error. In any event, the denial of a motion for summary judgment is not subject to review on appeal, even after there has been a trial on the merits. Bull Motor Co. v. Murphy, 101 Ark.App. 38, 270 S.W.3d 350 (2007).
11fiIV. Final decree
On September 29, 2008, the case was tried to the court sitting as fact-finder. Chiodini’s predecessor in title, Luke Elliott, testified that when he first purchased the property, he understood that its northern border ran along an old fence line, and he passed that understanding on to Chiodi-ni. Elliott further testified that, in 1999 or 2000, Lock told him that he planned to survey the border and construct a new fence thereon. Lock then built a new fence south of the old fence line, and Elliott said that he accepted that fence as being on the surveyed border. However, Elliott stated that, based on Lock’s admission in discovery that the survey was conducted by an unlicensed person, Lock misrepresented the situation.
Jerry Perry, another land owner in the area, testified that there had been an old fence line on his property since at least 1979, which joined the old fence line at issue in this case. Perry said that he always considered the old fence to be his boundary line. However, he said that he had not commissioned a survey of the area along his boundary.
David Lock testified that he obtained his land in 1989 from his father, who had purchased the property in 1958. According to Lock, an old fence existed on the property in 1958, but it was used to separate livestock rather than serve as a border. Lock stated that no one knew where the true border line of the property was. Lock testified further that he built some fences in the 1970s that were close to the old fence, which was now deteriorated, but that those fences were not understood to represent boundaries. Lock said that he built what 11fiwas being referred to as the new fence in 1995 or 1996, not in 1999 or 2000 as Luke Elliott had testified. He also said that Elliott never claimed that the old fence line was the border.
Gene Gorton testified that he performed a survey of the common boundary line between Chiodini and Lock. The survey, which was conducted in either 2003 or 2005, is difficult to interpret but appears to reflect that Lock’s new fence does not encroach on Chiodini’s land. Gorton said that Chiodini asked him to set a re-bar in the old fence line and to draw a straight line to a tree corner, but Gorton could not locate a fence in between those marks.
Chiodini testified that he was not willing to be bound by a survey because the old fence line represented a boundary by acquiescence. He admitted that Lock had told him that he (Lock) and Elliott had agreed that the new fence “would be the line.” However, Chiodini said that their boundary did not make sense based on his GPS observations.
Ira and Imogene Thomas, who owned Chiodini’s property before Luke Elliott, testified that they never knew where their northern boundary was and that they did not tell Elliott where a dividing line was. Lock’s mother, Bonnie Lock, testified that she was never aware of the boundary line between the northern and southern properties. Mrs. Lock stated that the old fence that Chiodini wanted to claim as a boundary was just “an old torn down fence” that “doesn’t make any straight line.” She said that she never recalled anyone saying that the old fence was the boundary line.
117Janice Lock, David Lock’s wife, testified that she prepared a diagram of the area around the old fence line. She stated that there was “not much” fencing in some areas and that there were places where one could walk in between the fence. Donald Lock, David’s uncle, testified that there were fences “all over” the Lock land and that no one ever treated the old fencing as a border. He said that David built a new fence on the boundary line in 1996.
On December 11, 2008, the court entered an order denying Chiodini’s claim for a boundary by acquiescence. The court ruled that Chiodini failed to prove by way of words, actions, or conduct a tacit agreement between landowners regarding a boundary line, other than the “new fence,” which Chiodini denied was a boundary. The court then quieted title in accordance with the Gorton survey.
Chiodini argues on appeal that the evidence does not support the court’s refusal to establish a boundary by acquiescence. Our standard of review is whether the circuit court, sitting as fact-finder, clearly erred in its ruling. DC Xpress, LLC v. Briggs, 2009 Ark. App. 651, 343 S.W.3d 603. We give due deference to the superior position of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony. Id. Further, it is within the province of the trier of fact to resolve conflicting testimony. Id.
When adjoining landowners silently acquiesce for many years in the location of a boundary and thus apparently consent to that line, the result is a boundary by acquiescence. Brown v. Stephens, 2009 Ark. App. 614, 2009 WL 3029308. A boundary by acquiescence is usually represented by a fence, a turnrow, a lane, a ditch, or some other monument tacitly accepted as visible | l8evidence of a dividing line. Id. An express agreement to treat a fence as the dividing line is not required. Instead, a boundary line by acquiescence is inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. Id. Acquiescence need not occur over a specific length of time, although it must be for a long period of time. Id.
In the present case, Lock and several other witnesses, including his family members and the Thomases, who once owned Chiodini’s property, testified that they did not consider the old fence to be a boundary line and that they were not sure where the boundary line between the two properties was located. Many of these same witnesses also testified that the old fence was used to contain cattle rather than to declare a border and that the old fence was too run down to be considered a border. Under these circumstances, we cannot say that the circuit court clearly erred in ruling that Chiodini failed to prove a tacit acceptance among landowners of the old fence line as a boundary. Chiodini argues that Lock admitted during his testimony that some of his interrogatory responses were inaccurate. However, this went to Lock’s credibility, which was a matter for the circuit court to decide. DC Xpress, supra. In any event, Lock was not the only witness at the trial who denied the existence of the old fence as a boundary line.
We therefore affirm the circuit court’s final decree. However, we remand with instructions for the circuit court to amend its order to include a specific legal description of the boundary at issue. See Garringer v. Garringer, 2010 Ark. App. 297, 374 S.W.3d 769. Even 119though the court’s order mentions the Gorton survey, the order must describe the boundary with sufficient specificity that it can be identified solely by reference to the decree. Boyster v. Shoemake, 101 Ark.App. 148, 272 S.W.3d 139 (2008); Adams v. Atkins, 97 Ark.App. 328, 249 S.W.3d 166 (2007).
Affirmed and remanded with instructions.
HENRY and BROWN, JJ., agree.
. Chiodini petitioned the Arkansas Supreme Court for a writ of certiorari with regard to the discovery orders, but the writ was denied. Chiodini v. Lock, 373 Ark. 88, 281 S.W.3d 728 (2008).
. The record does not reveal what became of the request for production of documents.
. Chiodini asserts that the responses must also be verified by a party, but that requirement was deleted from Rule 36 in 1983. In re Amendments to the Rules of Civ. Proc., 279 Ark. 470, 651 S.W.2d 63 (1983); David New- bern & John J. Watkins, Civil Practice & Procedure § 23.3, at 469 (4th ed.2006).
. Chiodini argues that Lock was not prejudiced by his failure to file the requests. However, we cannot reach that conclusion with certainty, given that a filing might have provided Lock’s attorneys with additional notice of the requests. We therefore do not consider this argument as a ground for reversal.
. Chiodini cites Smith v. Goodyear Tire & Rubber Co., 261 Ark. 541, 543, 549 S.W.2d 798, 799 (1977), for its statement that, where a fact cannot be admitted, the reasons must be set forth in detail. However, Smith was decided before our adoption of the Rules of Civil Procedure and we decline to accord it any weight on this issue. | [
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ROBERT L. BROWN, Justice.
| ,This is a workers’ compensation case. Appellant John Pearson appeals from an order of the Workers’ Compensation Commission (the “Commission”) reversing the decision of the Administrative Law Judge (the “ALJ”) and denying, with one commissioner dissenting, Pearson’s claim for benefits because he failed to prove that he sustained a compensable injury to his left-great toe.
The Arkansas Court of Appeals first heard this appeal and reversed the Commission’s decision on the ground that Pearson had established a claim for a rapid-repetitive injury. Pearson v. Worksource, 2011 Ark. App. 751, 387 S.W.3d 274. We granted appellee Worksource’s petition for review. When we grant review following a decision of the court of appeals, we consider the appeal as though it had been originally filed in this court. Tyson Poultry, Inc. v. Narvaiz, 2012 Ark. 118, 888 S.W.3d 16.
|2We vacate the opinion of the court of appeals and reverse the Commission.
Pearson, who was diagnosed with diabetes mellitus in October 1995 and is insulin-dependent, was employed by Worksource, a staffing company, on June 8, 2009. On that date, Worksource had temporarily assigned Pearson to work for Macsteel, which is engaged in the processing and distribution of steel. At the hearing before the ALJ, Pearson testified that he had no problem with his left-great toe that morning prior to going to work. He explained that his employer had outfitted him with a pair of steel-toe “metatarsal” boots that he wore to work that day and that within a couple of hours of working, his left-great toe began to bother him and his foot continued to be sore over the course of the day. When he came home from work that night and took off his boots, he noticed a blister on the side of his left-great toe.
Pearson stated, in addition, that his job duties that day had included taking steel out in large bundles to the yard to cool under fiberglass blankets. Depending on where the bundles were to be placed in the yard, he had to walk from one end of the yard to the other to cover and uncover the bundles. He testified that he walked back and forth across the yard all day, moving his feet “over and over” in order to walk from place to place. He added that he was required to cover the bundles as quickly as possible so that he had to walk fast and “hot step it” to complete his task.
Pearson testified that he believed his boots contributed to the development of the blister because he could feel the edge of the steel toe rubbing and pressing against his left-great toe. Pearson also testified that he reported his injury to his employer and asked if he could get |3a wider pair of boots. He was told that he could not be provided a replacement pair of boots but that he could purchase his own.
On June 17, 2009, Pearson had a routine appointment with his general practitioner, Dr. James Saunders. Pearson reported the problem with his toe. In his notes, Dr. Saunders -wrote that Pearson had “developed an ulceration on his medial left big toe from using work boots,” that it had a “purulent discharge,” and that Pearson had been “using topical antibiotic ointment and the redness and swelling ha[d] decreased in the last couple of days.” Dr. Saunders diagnosed Pearson as having diabetic peripheral neuropathy type II and cellulitis.
Next, Worksource sent Pearson to Dr. Terry Clark on July 30, 2009, who diagnosed him with “diabetic ulcer and celluli-tis of the left great toe” and returned him to work with the restriction that he alternate standing, sitting, and walking as he could tolerate with no pressure on his left-great toe. Dr. Clark noted that Pearson had been “working with some steel toed boots that according to him were too narrow.” Dr. Clark referred Pearson to a podiatrist, Dr. John Wright, who evaluated Pearson on July 31, 2009, and wrote that Pearson had a “Wagner’s Grade 3 ulceration on the plantar medial aspect of the left hallux.” He also noted “purulent drainage ... erythema and swelling of the left hallux.” Dr. Wright debrided necrotic tissue from the ulceration and drained it. He advised Pearson to return in three days for further treatment and for more tests to ensure that there was no indication of osteomyelitis.
On August 20, 2009, a physician’s note from Dr. Wright read that Pearson had a “severe infection in his left foot,” that it was possible his foot would have to be amputated, [4and that it was necessary to admit him. Pearson was admitted to Summit Medical Center on August 20, 2009, and on August 21, 2009, Dr. Travis Goodnight, a general surgeon, performed surgery on Pearson’s left-great toe, which included an “[i]ncision and debridement of left great toe of the skin and subcutaneous tissue and bone.” His postoperative diagnosis was “[I]eft great toe osteomyelitis, cellulitis and abscess.” Dr. Goodnight saw Pearson again on September 15, 2009, and reported that the wound was healing but that he had “[ejarly osteomyelitis of the left great toe” and that there was still a “possibility of losing his toe.” Dr. Goodnight continued Pearson on antibiotics and returned him to light-duty work as of September 21, 2009, as long as he did not have to stand for longer than thirty minutes at a time. As of October 29, 2009, Dr. Goodnight reported that Pearson was doing well, that he had a new job working at the Waffle House, and that his wound was ninety-nine percent healed.
The ALJ found that Pearson had established that he had sustained a compensable injury to his left-great toe, either as an accidental “specific incident” injury or as an injury caused by rapid-repetitive motion. The Commission reversed the ALJ’s decision and found that Pearson failed to prove he had sustained a compensable injury as a result of either a specific incident or rapid-repetitive motion. Specifically, the Commission found that Pearson had failed to prove the occurrence of an injury that was capable of being identified by a specific time and place of occurrence because Pearson’s testimony was that his left-great toe began to bother him within a couple of hours of working and that his left foot became sore “over the course of the day” on June 8, 2009.
| fiThe Commission further found that nothing in Pearson’s medical record supported a finding of a specific-incident injury. The Commission distinguished this court’s holding in Cedar Chemical Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008), on the basis that “neither the documentary evidence of record nor the instant claimant’s testimony demonstrate that there was a specific incident identifiable by time and place of occurrence” and because there was “no expert opinion from a treating physician stating that the claimant had sustained an ‘acute injury’ or an injury resulting from a specific incident identifiable by time and place of occurrence.” The Commission, as a final point, found that Pearson failed to prove that he had sustained an injury as a result of rapid-repetitive motion because the record failed to show that his “left great toe ‘rubbed’ against his work boot in a rapid repetitive manner” or “that the ‘hot step’ described by the claimant ... constituted rapid repetitive motion involving his left great toe.” One commissioner filed a dissenting opinion in which he found that Pearson proved both an injury as a result of a specific incident and an injury as a result of rapid-repetitive motion.
Our standard of review for workers’ compensation claims is clear. We view the evidence in the light most favorable to the Commission’s decision and af firm the decision if it is supported by substantial evidence. | Hudak-Lee v. Baxter Cnty. Reg’l Hosp. & Risk Mgmt. Res., 2011 Ark. 31, 378 S.W.3d 77. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission. Id. As the claimant, Pearson bears the burden of proving a compensable injury by a preponderance of the evidence. Ark.Code Ann. § ll-9-102(4)(E) (Repl. 2012).
Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008). When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and determine the facts. Id. The Commission is not required to believe the testimony of the claimant or any other witness but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id.
Pearson’s sole point on appeal is that substantial evidence does not support the Commission’s finding that he failed to prove by a preponderance of the evidence that he sustained a compensable injury to his left-great .toe and that reasonable minds could not agree with the Commission on this point. Pearson claims that under the facts of his case, his injury is compensable as either a specific-incident injury or as one caused by rapid-repetitive motion and that the Commission erred in not awarding him benefits for his injury.
A compensable injury, as defined in our statutory code, is
(i) An accidental injury causing internal or external physical harm to the body ... |7arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence; (ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is: (a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition....
Ark.Code Ann. § 11-9-102(4)(A) (Repl. 2012). Furthermore, “[a] compensable injury must be established by medical evidence supported by objective findings, which are findings that cannot come under the voluntary control of the patient.” Ark. Code Ann. § 11-9-102(4)(D), (16).
In its decision that Pearson failed to prove the occurrence of an injury that could be specifically identified by time and place of occurrence, the Commission relied on Pearson’s testimony that his left foot became sore over the course of the June 8, 2009 work day; that his left-great toe started bothering him within the first couple of hours of working on June 8; and that he believed that he developed the blister from walking in steel-toe work boots that rubbed his left-great toe. The Commission specifically wrote that “[t]here was no part of claimant’s testimony from which [it] could conclude that the claimant injured his left great toe as the result of a specific incident identifiable by time and place of occurrence.” Moreover, in distinguishing the instant case from Cedar Chemical Co., the Commission found that “neither the- documentary evidence of rec ord nor the instant claimant’s testimony demonstrate that there was a specific incident identifiable by time and place of occurrence.” We disagree.
In Edens v. Superior Marble & Glass, this court noted that “a strict construction of 18[section 11 — 9—102(4)(A)(i) ] does not require, as a prerequisite to compensability, that the claimant identify the precise time and numerical date upon which an accidental injury occurred. Instead, the statute only requires that the claimant prove that the occurrence of the injury is capable of being identified.” 346 Ark. 487, 492, 58 S.W.3d 369, 373 (2001). In Edens, the claimant testified that he injured his back while lifting marble but that he could not be specific about the day the incident occurred. Id. We reversed the Commission’s decision to deny him benefits to the extent that its decision was based on Edens’s inability to provide the exact date of his injury.
In a later case, Cedar Chemical Co., we affirmed the Commission’s finding that the claimant had suffered a compensable knee injury resulting from a “specific incident” where the claimant testified that his job required him to travel three flights of stairs between five and eight times during a twelve-hour shift; that he noticed pain in his knee at one point while descending the stairs; and that several hours later, the pain worsened to the point that he could not bear weight on that leg. 372 Ark. at 234, 273 S.W.3d at 473. The claimant in Cedar Chemical Co. could not identify a precise moment when the injury occurred. Instead, he could only point to when he first felt pain and explain that his pain worsened throughout the course of the day. We said in that case that “[sjimply because [the claimant’s] injury is unexplained does not render it noncompensa-ble.” 372 Ark. at 240, 273 S.W.3d at 478.
Pearson testified, in the case before us, that his employer provided him with a pair of steel-toe work boots and that he wore them to work on June 8, 2009, where he was required to walk across a yard multiple times carrying bundles of steel. He often did this at a quick |flpace. He testified that within a couple of hours of working, his left-great toe began to bother him; that he had not felt any pain or soreness in his left toe that morning before work; that he could feel the edge of the steel toe rubbing and pressing the area where his left toe was sore; and that after getting home and taking off his boots, he discovered a blister on his left-great toe. Pearson further testified that he informed his employer of the problem and requested wider boots. Because of these circumstances, both Dr. Saunders and Dr. Clark made medical notes to the effect that Pearson reported that he had acquired the blister from wearing steel-toe work boots. The fact that Pearson could not identify the exact moment that the blister emerged and became visible because he was wearing a boot is not determinative. Rather, “the statute only requires that the claimant prove that the occurrence of the injury is capable of being identified.” Edens, 346 Ark. at 492, 58 S.W.3d at 373.
There is no indication in the Commission’s opinion that it discounted Pearson’s testimony or found him not to be credible. Rather, the Commission simply decided that based on his testimony alone, it could not conclude that his injury was the result of a “specific incident.” It appears that the Commission, without analysis, determined that because Pearson’s injury (the blister) may have gradually worsened over the course of the work day, it could not be categorized as a specific-incident injury. In other words, without evidence of a specific, isolated, immediate incident causing his injury, the Commission concluded that Pearson was not entitled to benefits. And yet, what Pearson presented to the Commission, if believed, would constitute a compensable injury as a result of a specific incident that occurred while doing his job in light of Edens and Cedar Chemical Co. Because the Commission clearly | ]flbelieved Pearson, it was unreasonable for the Commission to conclude that Pearson did not suffer an injury as a result of a specific incident on June 8.
This case is different from Weaver v. Nabors Drilling USA, 98 Ark.App. 161, 253 S.W.3d 30 (2007), where the claimant experienced an onset of tingling and numbness in his hands after “mixing mud” with his hands, and an MRI later revealed that the claimant suffered from two herniated discs. In that case, the court of appeals affirmed the Commission’s denial of benefits because the claimant proved only that he had an injury and felt pain at work; he did not establish that a specific incident occurred at work. Id. Likewise, this case is unlike Hapney v. Rheem Mfg. Co., 342 Ark. 11, 26 S.W.3d 777 (2000), where this court affirmed the Commission’s denial of benefits as a result of a specific-incident injury where the claimant’s own testimony was that she did not know how she injured her neck, she could not point to anything specific that caused the injury, and she failed to report to her physician that her pain was associated with any specific incident.
In sum, there is an obvious, direct correlation in the instant ease between the injury Pearson claimed he suffered at work (the blister) and the specific incident that he maintains caused that injury (repeatedly walking across the field while wearing ill-fitting work-supplied boots). This is not an “unexplained injury.” Pearson explained that within a couple of hours of starting work, he felt pain in his left-great toe. He further noted that his foot continued to be sore throughout the day. He ultimately discovered that the rubbing and pressing of his steel-toed work boot while walking to perform his work duties, though not identifiable as to the precise time the blister visibly emerged, caused him to form a blister on his left-great toe. Inin short, reasonable minds could not disagree on the incident that caused the injury.
Because we hold as we do, that the injury resulting in a blister was caused by a specific incident, it is unnecessary for this court to address the rapid-repetitive-motion claim for a gradual-onset injury, which was the basis upon which the court of appeals reversed the Commission.
Decision of the Workers’ Compensation Commission reversed and remanded; opinion of the court of appeals vacated.
. Although the Commission writes in its decision that a "treating physician in Cedar Chem. Co. had opined that the claimant sustained an "acute injury,” that fact is not supported by the plain language of our opinion. Although the word "acute” is used twice in the majority opinion, in neither instance is it used to quote any findings or diagnosis made by the claimant's treating physician. | [
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