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JIM GUNTER, Justice.
| Appellant Scott Blake appeals from the circuit court’s denial of his motion for new trial. Appellant initially appealed the denial to the court of appeals, which af firmed, Blake v. Shellstrom, 2012 Ark. App. 28, 388 S.W.3d 57, reh’g denied (Feb. 12, 2012), and this court granted his petition for review. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. E.g., Hempstead Cnty. Hunting Club, Inc. v. Ark. Pub. Serv. Comm’n, 2010 Ark. 221, 384 S.W.3d 477. On appeal, appellant argues that the circuit court erred in denying his motion for new trial based on juror misconduct and an insufficient verdict. We affirm.
This case arises out of a personal-injury action brought by appellant against appel-lees Jonathan Shellstrom, Robin Whitten, and Metropolitan Property and Casualty Insurance Company. Appellant and ap-pellees Shellstrom and Whitten were involved in a three-vehicle |2automobile accident that occurred on Highway 66 in Stone County on May 5, 2008. In a legal passing zone, appellee Whitten attempted to legally pass appellant just as appellee Shellst-rom pulled out of his driveway directly into the path of appellee Whitten. Appellees collided, causing appellee Whitten’s vehicle to strike appellant’s truck. Appellant and his passenger son were injured and sued appellees for their injuries.
During a two-day jury trial held on January 13 and 14, 2011, appellant’s physician testified that appellant had a sublaxation of the vertebrae in his neck, suffered a decreased range of motion of the cervical spine of ten to fifteen percent, and that his injuries are permanent. Appellant testified that his neck “pops” and that he suffers from low-level pain and stiffness.
Prior to and during the trial, the parties thoroughly argued whether the fact that appellant had health insurance could be introduced into evidence. The trial judge ruled that so long as appellant did not “open the door,” appellees would be prohibited from putting on evidence of, or referring to, appellant’s health insurance coverage. Accordingly, no evidence was introduced that appellant’s ' medical expenses were paid by a third party. Instead, appellant gave uncontroverted testimony that, as a result of the accident, he incurred $2089 in lost wages and $8284.85 in medical expenses. Appellant’s physician testified that appellant would need to have epidural steroid injections, every one to three years, for the rest of his life and that these injections cost $2400.
The case was submitted to the jury on interrogatories and a general verdict form. The jury returned a verdict in favor of appellant against appellee Shellstrom in the amount of |s$10,400. Appellant’s son received a verdict against appellee Shellst-rom for $10,000. The circuit court entered final judgment on February 2, 2011.
On February 4, 2011, appellant filed a motion for new trial pursuant to Arkansas Rule of Civil Procedure 59. In that motion, appellant asserted that he was entitled to a new trial based on jury misconduct, insufficient damages, and a verdict contrary to the preponderance of the evi-dénce. Attached to the motion were the affidavits of Keith Huyard and Rebecca Brown, who served as- foreperson and juror respectively in appellant’s trial.
Brown’s January 19, 2011 affidavit reads as follows.
I am Rebecca Ann Brown who served as a member of the jury in the above styled case. At the close of the case, the members of this jury retired to the jury room to reach a verdict(s). During the course of that deliberation at least two of the jurors stated emphatically that they had been federal employees and knew as a matter of fact that Scott Blake, working as a postmaster .for the federal government, would have health insurance by reason of his employment which would cover most if not all of his medical bills. At one point during the deliberations I wrote a note directed to the judge asking whether or not the jury should consider health insurance in our deliberations regarding Scott Blake’s medical bills. That note was passed to the foreman of the jury but was never delivered to the bailiff to be given by him to the presiding judge.
The verdict which was returned by the jury did not take into consideration that medical expenses incurred by Scott Blake in the past and to be incurred by him in the future because of the statements made by one or more of the jurors to the effect that those medical bills incurred and to be incurred by Scott Blake would be paid by health insurance furnished to him by his employer, the U.S. Postal Service. I and one other juror did not sign the verdict form since it was our belief that it was not in accordance with the evidence produced in the case and contrary to the instructions of law given by the Court.
Huyard’s January 27, 2011 affidavit reads as follows.
I am Keith Huyard and was the foreperson of the jury in the above styled case. At the close of the case, the members of this jury retired to the jury room to reach a verdict(s). During the course of that deliberation at least two jurors stated emphatically | ¿that they had been federal employees and knew as a matter of fact that Scott Blake, working as a postmaster for the federal government, would have health insurance by reason of his employment which would cover most if not all of his medical bills. By reason of this, the jury felt that the medical bills being claimed by him, both past and future, would be paid by insurance. Further, the jury felt that the reason Mr. Blake had not received the epidural injections was that he did not want or need to get them and not because he could not afford them.
There is no question in my mind that had the jury not believed that Scott Blake had health insurance which would cover his medical bills, both past and future, a much larger award would have been given to him.
At one point, juror Rebecca Brown passed a note to me to be given to the bailiff which in turn was to be given by the bailiff to the Court asking whether or not the jury should consider health insurance in our deliberations regarding Scott Blake’s medical bills. This note was not given to the bailiff by me in that I told the jury that, in my opinion, the Court would not answer the question posed but would simply tell us to return a verdict based on the facts in evidence and the law given to us. After I told the jury that, a vote was taken and we all agreed that there was no need to give the nqte to the bailiff to be taken to the Court.
Simply put, the verdict which was returned by the jury did not take into consideration the medical expenses incurred by Scott Blake in the past and to be incurred by him in the future because of our belief that those bills would be paid by health insurance. furnished to him by his employers, the U.S. Postal Service.
From these affidavits, appellant argued to the trial judge that (1) the jury’s consideration of appellant’s health insurance was misconduct sufficient to require a new trial and (2) the $10,400 awarded in damages was unrealistic, illegitimate, and not based on the evidence. Appellee Shellstrom opposed appellant’s motion asserting that (1) the juror affidavits were inadmissible under Arkansas Rule of Evidence 606, (2) the general verdict form precluded any review of the jury’s findings on damages, and (3) appellant waived his right to complain on this point by failing to request the collateral-source instruction, AMI Civ. 2215, and poll the jury. Appellee Whitten, against whom no verdict was entered, adopted ap-pellee Shellstrom’s argument that the juror affidavits were inadmissible. Appellee Whitten also |smaintained, however, that even if the trial judge were to grant a new trial based on juror misconduct, the no-liability verdict in favor of appellee Whit-ten should be allowed to stand and the new trial be granted only as to appellee Shellst-rom. Appellee Metropolitan adopted Shellstrom’s response in its entirety.
On March 3, 2011, the trial judge held a hearing on appellant’s motion for new trial. No testimony was received, and the parties orally argued their respective positions. At the close of the hearing, the trial judge indicated that he was not yet ready to rule on the motion and stated that he would issue a written order after further consideration. On March 11, 2011, appellant filed a notice of appeal noting that his motion for new trial was deemed denied as of March 7, 2011, pursuant to Arkansas Rule of Civil Procedure 59(b). On March 16, 2011, the trial judge entered a one-sentence order denying appellant’s motion for new trial.
For his first point on appeal, appellant asserts that the jury’s consideration of his employer-provided health insurance in calculating his damages entitled him to a new trial under Arkansas Rule of Civil Procedure 59(a)(2). Initially, appellant observes that there was no evidence presented at trial of the existence of insurance coverage or the payment of insurance benefits. He then reasons that several jurors’ statements assuring fellow jurors that appellant’s past and future medical expenses would be paid by his insurance company was extraneous information that influenced the jury to reduce its damages award. Appellant contends that this introduction of extraneous information into deliberations rises to the level of jury misconduct and that the trial judge erred by denying his motion for new trial.
| ^Appellees, on the other hand, argue that the juror affidavits attached to appellant’s motion for new trial were the fruits of an improper inquiry into the jury’s verdict and therefore inadmissible under Arkansas Rule of Evidence 606(b). Alternatively, appellees maintain that even if the juror affidavits are admissible, they are merely speculative assertions insufficient to show a reasonable possibility of prejudice. Finally, appellees also assert that appellant should not be heard on this point because he failed to request that the trial judge instruct the jury on the collateral source • doctrine. Accordingly, appellees contend that the trial judge acted within his discretion in denying appellant’s motion for a new trial.
Arkansas Rule of Civil Procedure 59(a)(2) provides that juror misconduct is a proper basis for granting a new trial. See Dodson v. Allstate Ins. Co., 345 Ark. 430, 441, 47 S.W.3d 866, 873 (2001). The decision whether to grant a new trial under Rule 59(a)(2) is discretionary with the trial judge who will not be reversed absent an abuse of that discretion. Id. The burden of proof in establishing jury misconduct is on the moving party who must demonstrate that a reasonable possibility of prejudice has resulted from the misconduct. Sunrise Enters., Inc. v. Mid-S. Rd. Builders, Inc., 337 Ark. 6, 11, 987 S.W.2d 674, 676 (1999). Prejudice in such instances is not presumed. Id.
Although juror misconduct may require a new trial, the evidence of that misconduct must be admissible under Arkansas Rule of Evidence 606(b). That rule is entitled “Inquiry Into Validity of Verdict or Indictment” and provides as follows:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as ^influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.
Ark. R. Evid. 606(b) (2012). The purpose of Rule 606(b) is to attempt to balance the freedom of the secrecy of jury deliberations with the ability to correct an irregularity in those decisions. State v. Osborn, 337 Ark. 172, 175, 988 S.W.2d 485, 486 (1999) (citing Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 748 S.W.2d 143 (1988)). The rule discourages harassment by losing parties attempting to set aside the verdict; encourages free and open discussion among jurors; reduces incentives for jury tampering; promotes verdict finality; and maintains the viability of the jury as a judicial décision-making body. See id. at 175-76, 988 S.W.2d at 486-87 (citing 75B Am.Jur.2d, Trial § 1900 (1992), revised at 75B Am.Jur.2d Trial § 1625 (2007)).
Appellant contends that the jurors’ interjection of.insurance coverage into deliberations falls under the “extraneous prejudicial information” exception of Rule 606(b) and was therefore admissible in support of his motion for new trial. Ap-pellees counter that the jurors’ statements regarding appellant’s health insurance was not extraneous information but rather speculative beliefs based on their own pri- or knowledge and life experiences. Therefore, appellees maintain that the affidavits run afoul of Rule 606(b)’s prohibition on inquires into the effect of anything upon a juror’s mind or emotions.
Our most recent decision interpreting the extraneous-information exception is Witherspoon v. State, 322 Ark. 376, 909 S.W.2d 314 (1995), the relevant facts of which are as follows. Bonita Witherspoon served as a juror in the capital murder trial of Ledell Lee. Id. at 377-78, 909 S.W.2d at 315. After the jury reported that it was deadlocked, with Witherspoon casting the sole vote for acquittal, the circuit court declared a mistrial. Id. at 378, 909 S.W.2d at 315. Shortly thereafter, the prosecution filed a motion for contempt alleging, inter alia, that Witherspoon failed to disclose that she possessed independent outside knowledge of the case and that she knew Lee’s family and several of the witnesses. Id. At Witherspoon’s criminal contempt trial, the trial judge allowed the other jurors to testify about what Wither-spoon said throughout the capital murder trial and during deliberations. Id. at 381, 909 S.W.2d at 317. On appeal, Wither-spoon argued that the jurors’ testimony was inadmissible under Rule 606(b). Id. at 382, 909 S.W.2d at 317. This court disagreed, noting that the rule’s extraneous-information exception “allows jurors to testify that one or more members of the jury brought to a trial specific personal knowledge about the parties or controversy or acquired such knowledge from sources outside the courtroom during the trial or deliberations.” Id. at 382, 909 S.W.2d at 317-18 (emphasis added).
In a similar vein, this court’s decision in Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 748 S.W.2d 143 (1988), explained that the extraneous-information exception applies when information derived from an outside source is disseminated to the jury. In Watkins, two farmers alleged that a seed dealer negligently commingled and mislabeled seed. Id. at 291, 748 S.W.2d at 143. Following a defense verdict, the plaintiffs moved for a new trial, proffering a juror’s testimony that two jurors made disparaging comments about the plaintiffs’ attorney |9in the presence of the entire jury. Id. at 291, 748 S.W.2d at 143-44. The trial judge denied the motion, finding the testimony inadmissible under Rule 606(b). Id. at 291, 748 S.W.2d at 143. On appeal, the plaintiffs argued that the juror’s remarks fell under the extraneous-information exception. Id. at 293, 748 S.W.2d at 144. In affirming, this court held that extraneous prejudicial information is meant to encompass outside information, such as a radio newscast or newspaper account, being brought to the attention of the jury. Id. (citing B. & J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984)).
Although Witherspoon and Watkins provide us with the right question, namely, whether the jurors’ statements that appellant’s medical expenses would be paid by his employer-provided health insurance was information from an external source, they do not directly answer it. Indeed, other jurisdictions have considered the question and have reached different conclusions. Compare Marr v. Shores, 495 A.2d 1202, 1205 (Me.1985) (juror’s statement that plaintiffs medical bills were paid by his health insurance was part of deliberative process and not extraneous information) and Miller v. Breidenbach, 520 N.W.2d 869, 871 (N.D.1994) (juror’s discussion of automobile insurance was an internal aspect of deliberation, not an external effect on the jury) with Buisker v. Thuringer, 648 N.W.2d 817, 822 (S.D.2002) (juror who learned of defendant’s liability insurance from a state trooper and then relayed that fact to the jury had interjected extraneous information into deliberations) and Tapia v. Barker, 160 Cal.App.3d 761, 766, 206 Cal.Rptr. 803 (1984) (jurors’ belief that plaintiffs damages for lost wages should be reduced by whatever income plaintiff received from disability or unemployment benefits was misconduct).
1 ^Ultimately, however, we are persuaded that the affidavits do not fall within the extraneous-information exception. Despite the fact that the jurors claimed to know “for a fact” that appellant’s medical expenses would be paid by a third party, the statements remain bare, speculative assertions. Furthermore, those assertions were not derived from an external source, but instead were based only on several jurors’ own personal experiences.
We observe that this holding comports with both Witherspoon and Watkins, supra. Unlike Bonita Witherspoon, the jurors did not disseminate their personal knowledge of the specific facts of the case to the jury. Like the jurors in Watkins, the deliberations involved only the beliefs of the twelve jurors and were not tainted by information derived from an outside source. Finally, we also observe that the jury is a unique institution in our system of government and that the rationale underlying Rule 606(b) counsels in favor of protecting the sanctity of that institution under these circumstances.
For his second point on appeal, appellant argues that the trial judge should have granted him a new trial because the jury award was obviously insufficient. Specifically, appellant maintains that his past medical expenses and lost wages totaled $10,374.68 and that the jury’s award of an additional $25.32 for future medical expenses and for past and future pain and suffering is unrealistic and illegitimate. Appellees counter that the jury was free to weigh the evidence and determine the amount of damages that appellant should be awarded.
Arkansas Rule of Civil Procedure 59(a)(5) provides that error in the assessment of recovery, whether too large or too small, is a proper basis for granting a new trial. See Garrett v. Brown, 319 Ark. 662, 666-67, 893 S.W.2d 784, 787 (1995) (citing Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994)). In reviewing the adequacy of a jury’s award, this court will sustain the trial court’s denial of the motion for new trial unless there is a clear abuse of discretion. Id. An important consideration in this analysis is whether a fair-minded jury might reasonably have fixed the award at the amount advocated by the appellant. Id.
We agree with appellees that it would be improper to question the jury’s weighing of the evidence. On one hand, appellant was seriously injured in the accident and surely suffered pain. His physician testified that his back condition is permanent in nature and that he would require regular steroid injections for the rest of his life. On the other hand, appellant testified that he suffered from a relatively low level of pain, went back to work very soon after the accident, and equivocated as to whether he would continue to seek steroid-injection therapy.
We view the facts in the light most advantageous to appellees. Luedemann v. Wade, 323 Ark. 161, 166, 913 S.W.2d 773, 776 (1996). Obviously, the jury may properly assess witness credibility, and there is no strict mathematical formula to be applied in personal-injury cases. See id. at 166-67, 913 S.W.2d at 776; Kempner, 318 Ark. at 437, 885 S.W.2d at 894. Furthermore, we have frequently held that when it is impossible to know the basis for the jury’s verdict, we will not question or theorize about the jury’s findings. E.g., Tyson Foods, Inc. v. Davis, 347 Ark. 566, 578-79, 66 S.W.3d 568, 576 (2002); Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997); Jefferson Hosp. Ass’n v. Garrett, 304 Ark. 679, 804 S.W.2d 711 (1991). Here, damages were awarded on a general-verdict form. Accordingly, this court has no means to understand the jury’s calculation of damages, and we decline to 112indulge in assumptions.
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JOSEPHINE LINKER HART, Judge.
| T Sarah Jean Madden appeals from an order of the Sebastian County Circuit Court changing custody of her now eight-year-old daughter, B.M., to her ex-husband, Aaron Madden. On appeal, she argues that the trial court erred by finding (1) a material change of circumstances, (2) that it was in the child’s best interest to change custody, and (3) failing to consider Aaron Madden’s credibility. We affirm.
Sarah married Aaron on July 11, 2003, and lived with him until they separated on December 8, 2005. B.M. was born on August 30, 2004. While Sarah was married to Aaron, she had custody of two other children who are B.M.’s half-siblings, who, at the time of her mother’s separation from Aaron, were ages four and six. As per their agreement, the parties’ May 5, 2006 divorce decree awarded Sarah custody of B.M. subject to Aaron’s visitation every other weekend and every Wednesday.
|20n April 27, 2010, Aaron filed a petition seeking a change of custody and asking the trial court to find Sarah in contempt for violating the divorce decree. Aaron alleged that Sarah had “abandoned” B.M. by leaving her with Sarah’s parents and was currently cohabitating with a romantic partner in the presence of the minor child when the child went to her residence on “weekend visits.” Further, Aaron alleged that B.M. was not receiving appropriate medical care while in her grandparents’ home, and B.M. lacked a “present, attentive parent to meet her physical, emotional, and educational needs.” He also asserted that Sarah should be found in contempt for her refusal to disclose her true residences. Aaron obtained an ex parte order giving him temporary custody. Sarah did not oppose the order. B.M. remained in Aaron’s custody through the petition’s hearings, which began on April 14, 2011.
Aaron testified that all the visitation exchanges took place in Van Burén at the home of Sarah’s parents. Sarah was rarely present; he saw her approximately four to six times in a year. In November 2009, he surmised that Sarah no longer lived there. Subsequently, he spoke with David Cole, the father of one of Sarah’s other children, who had also noticed the absence of Sarah at the visitation exchanges. Aaron then discovered from utility records that Sarah had a residence in Bentonville. Ultimately, he concluded that Sarah had left B.M. with her parents, and he sought a change of custody.
Aaron asserted that Sarah left B.M. with her parents for long periods of time when she moved to New York and to Bentonville. He noted that Sarah’s other children were living |3with her parents when he married Sarah. Aaron complained that since their divorce, Sarah had not provided a home for her children and that she had lived away from them for several months at a time. She had also failed to provide health insurance for B.M. as required by the original custody order. By comparison, since his divorce, he never missed a single visit with his child, and he had been “physically and emotionally present” in his child’s life at all times. He noted further that when he had attempted to communicate by telephone with B.M. while the child was in her mother’s custody, he was never successful. Sarah would usually tell him that B.M. was asleep, even when it was 5:30 in the afternoon.
Aaron further testified that he maintained contact with B.M.’s teacher in the preschool program that she attended. He attended all of B.M.’s performances and her graduation, but he did not recall seeing Sarah in attendance. He claimed that he had a close relationship with his daughter in which he not only played with her, but also tended to her physical, medical, spiritual, and academic needs. According to Aaron, B.M. gets along well with his new wife’s children, who are twelve and eleven years old. He also promotes B.M.’s contact with his extended family, which B.M. enjoys. Aaron stated that he had a stable job as a commercial plumber with set hours from 7:00 a.m. to 3:30 p.m., Monday through Friday, with no weekends, overtime, or late hours. He is required to be on call, but that is only one week out of six. His annual salary of $32,000 allows him to provide for B.M. financially. His routine involves picking B.M. up from the local Boys and Girls Club when he gets off from work, making dinner, and helping B.M. with her homework. Aside from the rare instances when he is called out on an after-hours service call — at which point B.M. would be in the care of his |4new spouse — he is physically present in his home anytime his child needs him.
On cross-examination, Aaron admitted that prior to his taking emergency custody of his daughter, she was clean, healthy, and doing well in school. He nonetheless stated that Sarah was not “a good mom,” because she was not physically present and it was B.M.’s grandparents who were taking care of her. According to Aaron, save for the purchase of a single t-shirt, Sarah did not provide any financial support for B.M. during the year he had her pursuant to the ex parte custody order, yet he had paid all his child support. He also allowed B.M. to talk with Sarah by phone at least once or twice a week.
Shannon Davis, B.M.’s first grade teacher, testified that B.M. was an A student, with very good school attendance. Based on her test scores, B.M. was an average student. Davis stated that she got to know both of B.M.’s parents, but Aaron was far more involved in B.M.’s school activities. She stated that B.M. appeared to be a “generally happy child,” who “does not seem to carry any weight or burdens.” Regarding Sarah, Davis stated that she had met Sarah in person, had email contact with her, and did not have any “concerns” about her.
Gabriel Edmonds testified that he married Sarah on December 6, 1997, and they divorced on June 1, 2000. By agreement of the parties, Sarah got custody of M.E.E. He noted that all visitation exchanges took place at his child’s grandparents’ house for at least the last three or four years. According to Edmonds, Sarah was very rarely there — he estimated that he saw her more iii the past year than he had in the previous eleven years combined. He stated that prior to M.E.E. getting her own telephone, communication with his daughter while she was in her mother’s custody was “nearly impossible.” Edmonds asserted that since 2008, Sarah Rhadnot provided a home for M.E.E., and that she refused to tell him where she was living. He noted that he did a Google search and discovered a listing for Sarah Madden Photography in Bentonville. Her website included pictures of all three children. Edmonds also discovered career links and online resumes stating that Sarah lived in Valley Cottage, New York, and a gay-rights petition that listed Sarah’s address as Bentonville.
David Cole testified that he was married to Sarah on August 26, 2000, and divorced on September 80, 2002. By agreement of the parties, Sarah got custody of J.C., who at the time of the divorce, was just over a year old. He asserted that Sarah had not provided a home for her children and was not physically present in their lives for much of the time. He claimed that J.C: had been living with his grandparents “forever.” Cole stated that all the visitation exchanges took place at the grandparents’ house, and J.C. stated that he was living with them. He noted that Sarah seemed to have relationships that were “two-year cycles,” which have been emotionally difficult for J.C. Cole asserted that, since obtaining temporary custody of J.C., he had facilitated contact between his child and the other half-siblings, and. he pledged to continue to do so if he was granted permanent custody.
All three of the children testified. B.M. stated that the temporary-custody arrangement was going well and that she would be happy living with either her mother or her father. She stated that she did not want to pick, but, without being able to give a reason, testified that she preferred living with her mother. She thought she got along with her stepbrother and stepsister equally well with how she got along with M.E.E. and J.C. B.M. denied that her mother lived in New York, but confirmed that Sarah lived in Benton-ville with Jen “for awhile.” She noted |fithat her mother was present when she went to bed, but only “sometimes.”
J.C. testified similarly. He stated that he did well living with his father as well as living with his mother. He noted that there were times when his mother was not around, but denied knowing anything about Sarah living in New York. He also stated that, for a time, Sarah lived in Bentonville with Jen. J.C. stated that he preferred to live with his mother because he missed his half-siblings.
M.E.E. testified that she desired to live with her mother because she wanted to be united with her half-siblings. She noted that her father and his wife were in the process of getting a divorce. She denied living at her grandparents’ house, ássert-ing that she stayed there only when her mother went to work. According to M.E.E.,. her mother only went to New York “for- a vacation.” She also claimed that her mother “didn’t really ever live in Bentonville.”
Michelle Madden, Aaron’s new wife, testified that she had a good relationship with B.M. She stated that she had never met Sarah and only saw her at visitation exchanges a few times over a more than three-year period. She admitted that she lived with Aaron after they got engaged, but regretted that moral lapse. Michelle testified that the family regularly attends church. Michelle noted that telephone communication with B.M. was very difficult when Sarah had custody. Since Aaron obtained temporary custody, Michelle stated that they have facilitated contact with J.C. so that B.M. could maintain a relationship with her half-sibling.
Sarah denied that she ever resided in Bentonville. She claimed that she signed an apartment lease in April 2009 for her girlfriend, Jen, who at the time was busy taking nursing boards in New York. She claimed that she lived with her parents and visited Jen only on the | .¿.weekends and occasionally during the week. When confronted by the utility bills, the gay-rights petition, the apartment lease, and her photography-business website, she asserted that she was not being truthful when she represented that she resided in Benton-ville — she called them “pure lies” — but insisted that she was telling the truth in court. She was also confronted with a second lease in December 2009, after Jen had already relocated to Bentonville. Sarah asserted that she did not live in that apartment either. She similarly dismissed her signature on the application for utilities at the new apartment. She also testified that during the visitation exchanges, she was dropping off one or more of her children and merely left one or more of the others to be picked up at her parents’ house.
Sarah testified that she regretted her decision to go to New York. She claimed that her motivation for going there was to find a higher-paying job after she was laid off from Auto Master. She hoped that her employment in New York would enable her to keep the house on Quarry Road in Van Burén and retire some credit-card debt. Sarah admitted that she spent a total of six months in New York, but claimed that she returned to Van Burén to visit her children three times. She also admitted that she never informed the fathers of the move, but denied ever telling the children to lie about her residence. She acknowledged that she did not divulge her change of residence to the fathers because she feared a custody battle.
Sarah asserted that she had custody of the children for their entire lives and that they have always done well in school. She stated that since J.C. and B.M. were in the custody of their fathers, she noted a change in their personalities. B.M. had become “cold” and J.C. had become “an angry boy.” Sarah claimed that the children have expressed regret about not living | ¿with their other half-siblings. According to Sarah, she currently resided at a townhouse in Van Burén, having moved there directly from her parents’ house. After returning from New York, she accepted short-term employment in Fayette-ville and Bentonville, but merely commuted to these jobs. Most recently, she worked for the post office in Van Burén, but she terminated her employment because she anticipated that her position would be moved to Fayetteville. Sarah stated that she is currently unemployed, but maintains her apartment because she is in a “committed, serious relationship” with Jen. Jen makes $70,000 and takes care of her bills even though they do not currently live together.
Sarah’s mother, Jan Evans, testified that the children had always lived with their mother; she only babysat them. She claimed that the fathers would pick up the children at her home because it was “simpler.” Jan also claimed that she would wait for Aaron to drop off B.M. while Sarah and Sarah’s father would pick up the other two children. Jan stated that Sarah’s move to New York was prompted by her desire to save her home. She asserted that the fathers never asked where Sarah was. Jan admitted that Sarah leased an apartment in Bentonville when she returned from New York, but claimed that Sarah continued to live with her and the children in Van Burén. She did note that Sarah visited Jen every weekend and sometimes during the week. She asserted that Sarah “handled the mothering and the parenting.” Jan also claimed that the attitudes of J.C. and B.M. had changed since they were in their fathers’ custody, and M.E.E. seemed “lonely.”
Robert Baker Evans, Sr., Sarah’s father, also testified that Sarah never left the children at his home to be cared for. Regarding picking up the children, he claimed that Sarah would |9pick up one and he would pick up the other, while his wife waited at home for the third. When Sarah went to New York, he would pick up one, while Jan picked up the other, and Aaron dropped off B.M. He also claimed that Sarah never lived in Bentonville but would usually visit on the weekends. He stated that Sarah was currently living in her own apartment in Van Burén. He also opined that the children had “changed drastically physically and mentally.” M.E.E. was depressed, J.C. was “very angry and rebellious,” and, although B.M. seemed “normal,” he had observed her crying for her sister.
Jennifer “Jen” Sarrubbo testified that she lives in Van Burén at a different address than Sarah. She stated that she met Sarah online while she was living in New York. Jen asserted that she was in a “committed” relationship with Sarah; although Arkansas does not recognize the union, she married Sarah in Iowa. Jen confirmed that Sarah lived with her in New York for six months, but claimed that Sarah was trying to “save her house for her and the kids.” She introduced checks showing that she had paid the utility bills for the Bentonville apartment. She claimed that she had a very good relationship with Sarah’s children and that the children did not question her relationship with Sarah. She also tes tified that the children acted differently since the fathers had obtained temporary custody. Jen confirmed that Sarah was not currently employed, but stated that they shared her income and the apartment was paid for out of a “joint account.”
The trial court found that there had been a material change in circumstances. It made the following findings:
a. The Plaintiff has engaged in numerous short-lived relationships and marriages;
b. The Plaintiff has failed to maintain a residence of her own;
l,nc. The Plaintiff has had her children reside in the care of her parents;
d. The Plaintiff moved to New York in 2008 without the children and lived there for a period of six (6) months;
e. The Plaintiff failed to notify the Defendant of her move to New York;
f. The Plaintiff is engaged in a homosexual relationship of which the children are not fully aware and do not understand; and
g. The Plaintiff rented an apartment in ' Bentonville, Arkansas and established utility served [sic] at the residence in or about April 2009 while the children remained in the care of her parents in Van Burén, Arkansas.
The trial court then found it was in the best interest of B.M. to be placed in Aaron’s custody. The trial court’s findings included Sarah’s lack of stability evidenced by her “multiple, shortlived relationships; failure to maintain her own residence; inconsistent and short-lived employment, and entry into a homosexual marriage not recognized by the State of Arkansas.” It also found that while the child resided with Aaron for over a year pursuant to the temporary-custody order, she was “happy and well adjusted.” Additionally, the trial court found that Aaron was stable and in a stable relationship. Sarah timely filed a notice of appeal.
At the outset, we acknowledge that it is axiomatic that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the trial court or were not known by the trial court at the time the original custody order was entered. Id. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id. The reasons for requiring these more [^stringent standards for modifications than for initial custody determinations are to promote stability and continuity in the life of the child and to discourage the repeated litigation of the same issues. Id.
Sarah first argues that the trial court erred when it found a material change of circumstances based on a change in her behavior. She contends that her temperament and intention to use her parents’ house for visitation exchanges existed at the time she was awarded initial custody. We disagree.
Sarah’s argument concedes the undisputed fact that she left her children in the care of her parents for six months while she moved to New York, but asserts, without any authority that this action was “moot.” She similarly fails to properly address the trial court’s finding that she continued to leave her children with her parents while she rented an apartment in Bentonville. Although she couches this portion of her argument in terms of there being insufficient proof to support this finding, we disagree. We acknowledge that she disputed the proof presented by Aaron, but given our deference to the superior position of the trial court to determine the credibility of witnesses, we cannot say that this finding is clearly against the preponderance of the evidence. We hold that the trial court did not err in finding a material change of circumstances.
Sarah next argues that it was not in the child’s best interest to change custody when it was not shown how any changes in her situation had affected or would affect the child. She asserts that even if it were true that she had “multiple short-lived relationships,” there was no evidence that they harmed the child. She notes that B.M. performed well on standardized tests, | iaand she introduced pictures of herself interacting with a happy child. Further, citing Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625 (2003), she asserts that Aaron’s “now stable lifestyle” cannot alone be the basis for justifying a change in custody. However, while she concedes that Aaron’s job and marriage may be “considered globally” with other factors, they do not “carry enough weight” to justify a change of custody. Sarah also argues that the trial court should have given B.M.’s relationship with her half-siblings “more weight” given the fact the three children were raised together. While she acknowledges that in Atkinson v. Atkinson, 72 Ark.App. 15, 32 S.W.3d 41 (2000), this court held that keeping siblings together cannot be the sole reason for a custody decision, and that in Eaton v. Dixon, 69 Ark.App. 9, 9 S.W.3d 535 (2000), we said that the prohibition against separating siblings absent exceptional circumstances does not apply with equal force to half-siblings, she nonetheless argues that “the effect of tearing a family apart must carry some weight in this case.” We find this argument unconvincing.
The issue in this case is whether it was in B.M.’s best interest to be placed in the custody of a full-time natural parent, or with one who has repeatedly shown that she would leave her children with their grandparents so that she could further her own romantic interests. While we do not intend to in any way disparage the effort put forth by Jan and Robert Evans in raising Sarah’s children, the fact remains that Sarah chose to absent herself from her children for at least weeks at a time, interrupting her new life only for weekend visits with her children. The law presumes that a fit, natural parent should have custody of his or her children, rather than the children’s grandparents. See Munn v. Hudson, 2011 Ark. App. 775, 2011 WL 6226117.
| ,?iWe are mindful that the trial court’s custody decision will significantly affect a very bonded group of half-siblings. Certainly this fact weighed against the change of custody. However, we must assume that the testimony of the fathers that they were sensitive to this fact and had made efforts to maintain contact between the half-siblings was properly weighed by the trial court.
Finally, Sarah argues that the trial court failed to properly consider Aaron’s credibility. While she notes several points where the trial court could have found Aaron less than credible, we are not persuaded. In the first place, as noted previously, we generally defer to the trial court’s superior position to determine the credibility of a witness in child-custody cases. More importantly, however, this case did not turn on Aaron’s credibility but the credibility of Sarah and her parents. Despite initially trying to minimize the amount of time she was away from her children, when confronted by contrary evidence, Sarah conceded that she left her children with her parents to move to New York. Likewise, regarding what appears to be a similar abandonment of her children when she moved to Bentonville, the trial court had to decide between her denials in court, albeit corroborated by her parents, and the contrary representations that she had made on the business website, gay-rights petition, apartment lease, and utility bills, in addition to the testimony of her own children, J.C. and B.M.
Affirmed.
WYNNE and GRUBER, JJ„ agree.
. Notably, Sarah has two other children, by two other men, from two other marriages. Those other men, Gabriel Edmonds and David Cole, petitioned for change of custody at the same time that Aaron filed his petition. All three petitions were tried in the same proceeding. | [
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CLIFF HOOFMAN, Judge.
| TAppellant Samuel Christopher Lands appeals from his convictions for second-degree murder and first-degree battery, for which he received respective sentences of 360 months and 240 months. His sentences were also enhanced due to his use of a firearm during the commission of the offenses, for a total of 840 months’ imprisonment. On appeal, Lands argues that there was insufficient evidence to support his convictions because he proved by a preponderance of the evidence that he suffered from a mental disease or defect at the time of the crimes. We affirm.
On April 19, 2010, Lands was arrested and charged with first-degree murder, attempt to commit murder, and the use of a firearm during the commission of the offenses. He then filed a notice of defense, raising the issue of his fitness to proceed and notifying the State that he intended to rely on the defense of mental disease or defect. Lands was found fit to proceed to trial, and the eight-day jury trial began on May 17, 2011.
| ¡^According to the evidence presented at trial, Lands was conditionally released from the Arkansas State Hospital on April 4, 2007, following a judgment of acquittal by reason of mental disease or defect in connection with previous charges of battery, escape, resisting arrest, and fleeing. Lands was released under Act 911, and after first being housed at Birch Tree Communities, he transferred to Community Counseling, Inc. (C.C.), in Hot Springs and was placed in a group home with three other residents, including Ronnie Bradley. Scott Fleming was the house manager for the residents and assisted with transportation, groceries, laundry, and cooking. The conditions of Lands’s release included such provisions as taking his medications as prescribed, submitting to random drug screens, and meeting with his counselors. When in compliance, Lands was permitted to have his own vehicle, and he also attended classes at a community college, where he obtained a heating and cooling certification. He was also allowed to apply for passes to leave the group home and visit his family.
On April 18, 2010, Lands returned to the group home from a weekend visit with his family in Sherwood. The next morning, two of Lands’s roommates, Roderick Jones and Sedrick Edmonds, were awakened by gunshots outside the home. When Jones went to investigate, he found Scott Fleming lying on the ground and Ronnie Bradley sitting on a bench, both shot. Ed-monds ran from the house and saw Lands driving away in the C.C. van.
Ronnie Bradley testified that, on the morning of April 19, 2010, he and Fleming were |sin the living room of the group home when Lands entered the room and started shooting. Bradley stated that he was shot twice and that Fleming was shot multiple times. Bradley testified that Lands searched for and found the keys to the C.C. van, then drove off before the police arrived. Melissa Brown, who was the house manager for the women’s group home across the street, testified that she heard the gunshots and ran outside to find Fleming lying on the concrete outside of the men’s home. She stated that Lands was standing nearby with a gun and that he demanded to know where her keys to the van were located. She told Lands where the keys were and then ran to secure her group home and call 911. After the 911 operator instructed Brown to go and check on Fleming’s injuries, she found that Fleming was not breathing and that Lands had already driven away. It was later determined that Fleming had been shot thirteen times.
A “be on the lookout” bulletin was issued for Lands and the C.C. van, and soon afterward, Lands was apprehended by Corporal Chad Staley with the Arkansas State Police. Staley testified that Lands immediately pulled over and put both hands out the driver’s side window. According to Staley, Lands was calm and aware of what was happening. Lands did become agitated at one point during the drive to the police station because he thought it was too hot in the car; he demanded that the air conditioning be turned on and began to kick at the vehicle door when he thought his demand had been ignored. Staley stated that Lands was compliant, however, when they arrived at the police station.
Lands’s parents testified that Lands was a happy and caring child up until his teen years. At that point, Lands’s mother, Linda, stated that he became erratic and uncontrollable. She Leventually took him to Bridgeway Hospital, where he was diagnosed as bipolar and given medication. Although Lands was “perfect” when he was on his medication, Linda testified that she could not force him to continue taking the medicine and that the police and the juvenile court became involved after his behavioral problems persisted. After Lands turned eighteen and the juvenile court lost authority over him, he lived at home with his parents until he committed the offenses in 2006 for which he was acquitted by reason of mental disease or defect and eventually placed in the C.C. group home.
In the months before the April 2010 incident, Linda testified that she had noticed a change in Lands and learned that his medication was slowly being decreased. She stated that Lands had become more argumentative and angry and that on the weekend prior to the murder, he started cursing when there was a dispute over the television. His father, Fred, warned Lands that he would be taken back to the group home if he did not behave, and Lands subsequently calmed down and apologized. After Lands’s parents were notified of the murder, Fred discovered that his gun, which he rarely used, was missing from the top shelf of his closet and that the clip for the gun was also missing from his dresser drawer.
Courtney Bishop, who was Lands’s counselor at C.C., testified that he had been transferred to the facility in October 2007. Although Lands had been allowed to move into independent living quarters in December 2007, he subsequently tested positive for illegal drugs in August 2008 and again in June 2009. He was required to move back into a group home, lost his driving privileges, and had his passes suspended. Although Lands continually requested to move to Little Rock or to return to independent living, he was told that he had 15to first maintain at least one year of sobriety. Bishop stated that Lands nonetheless pushed the issue with staff and that he complained of being bored. She testified that his behavior was often oppositional and that she attributed this to his being in treatment, having to take medication, and not getting to move home. Lands maintained that he did not suffer from a mental illness and requested that his medication be reduced. He instead blamed his legal and behavioral problems on substance abuse. Although Bishop was aware of Lands’s prior diagnosis of bipolar disorder, she noted no signs of the disorder during the thirty months that he was at the facility and had previously expressed her concern that he had been misdiagnosed with Lands’s psychiatrist, Dr. Kenneth Vest. As a result of these discussions, Bishop testified that Lands’s medication was decreased starting in the fall of 2010 and that, at the time of the murder, he was not on his medications at all.
Chris Cox, another counselor at C.C., testified that Lands was in two of his therapy groups. Cox stated that Lands glorified his past drug use and that he did not think there was anything wrong with using illegal drugs. According to Cox, Lands did not think he needed to be in the Act 911 program and talked regularly about getting an early release. Cox indicated that Lands had a problem with authority and that he had a “bright future” if he could control those issues. Cox had seen no signs of delusions or psychosis in Lands, nor did he notice signs of bipolar disorder. Instead, Cox believed that Lands was antisocial.
In January 2010, Lands was given several psychological tests by Lynn Terry, a psychological examiner with C.C. The two personality tests were consistent, with one suggesting that Lands had a narcissistic personality disorder with sadistic and paranoid features, Land the other showing that he had an antisocial personality disorder. One of the tests also indicated a significantly heightened “drug dependence” scale. Terry stated that, although one of the tests had a bipolar scale, Lands’s results in that regard were insignificant and that the test also showed no signs of schizophrenia.
Lands’s psychiatrist at C.C., Dr. Vest, testified that at the time he started treating Lands, he had been taking Ability due to his prior diagnosis of bipolar disorder. Starting in January 2009, Dr. Vest stated that he began decreasing the dosage and that he adjusted the dose up and down several times due to Lands’s use of methamphetamine. In March 2010, Dr. Vest stated that Lands stopped taking his medication completely. During his treatment, Dr. Vest testified that he began to question whether Lands’s diagnosis was accurate because he witnessed no signs of bipolar disorder. Dr. Vest also saw no symptoms of schizophrenia. He suspected that Lands suffered from antisocial personality disorder and substance abuse, which he stated was confirmed by the results of the psychological testing.
Dr. Michael Simon, a forensic psychologist, testified that he evaluated Lands at the State Hospital in October 2006. At that time, Dr. Simon believed that Lands understood the charges against him, but that he may not have been able to work with his attorney based on conversations in which Lands insisted that his attorney had told him to flee during a pretrial appear-anee. Thus, Dr. Simon initially opined in 2006 that Lands was not competent to stand trial. After a later evaluation, however, in which Lands acknowledged that he was not thinking correctly on the day he fled the courtroom, Dr. Simon found that Lands was competent to stand trial but that he was not competent at the time of the offenses. Dr. Simon 17diagnosed Lands with bipolar disorder with psychotic features, amphetamine abuse, and with having antisocial personality traits.
After Lands was charged with Fleming’s murder and his Act 911 release was revoked, Dr. Simon stated that Lands was returned to the State Hospital, where he acted in an uncooperative and aggressive manner with the staff and other patients. According to Dr. Simon, it was the staffs opinion that Lands was not suffering from psychosis or a major mental illness but that he was only “acting out.” He then reevaluated Lands on several occasions in September 2010. During these evaluations, Lands denied committing the crimes and was angry, but Dr. Simon stated that there was no indication of mental illness or psychosis. From his evaluations and his review of Lands’s medical records, Dr. Simon ultimately concluded that Lands did not have a mental disease or defect. He further concluded that, even if Lands did suffer from a mental disease or defect, he was able to appreciate the criminality of his behavior and to conform his conduct to the requirements of the law. From Lands’s actions after the murder, where he fled in the van, disposed of the murder weapon, and did not talk to the police, Dr. Simon testified that this was evidence that Lands appreciated the criminality of his conduct. Also, the fact that Lands secretly obtained the gun from his parents’ home on his weekend pass, yet came back to the group home, hid the gun, and did not shoot anyone until the morning of the murder, indicated to Dr. Simon that he was able to conform his conduct. Further, Dr. Simon noted that Lands did not shoot Melissa Brown when he demanded the keys and that this was also evidence that Lands could conform his conduct to the requirements of the law. When questioned about why his opinion on whether Lands | ^suffered from a mental disease or defect had changed, Dr. Simon explained that his 2006 diagnosis was “somewhat equivocal” as to whether the symptoms were due to mental illness or drug use. He testified that it is difficult to differentiate between methamphetamine abuse and bipolar disorder and that he had originally opted to err on the side of getting treatment for Lands, who was only twenty years old at the time, instead of subjecting him to the criminal justice system.
Forensic psychiatrist Dr. Raymond Mol-den testified for Lands and found him fit to proceed to trial. However, Dr. Molden believed that Lands was affected by a mental disease or defect at the time of the 2010 offenses. From his review of the medical records and his two evaluations of Lands while in jail, Dr. Molden opined that Lands suffered from schizoaffective disease and that he was unable to conform his conduct to the requirements of the law. He was unable to reach an opinion as to whether Lands was able to appreciate the criminality of his actions because of a lack of evidence. Dr. Molden admitted that he had not spoken with Lands’s prior counselors at C.C., his parents, or Dr. Simon. He further admitted that he was not aware of many of the details of the crimes, such as Lands’s disposal of the murder weapon, and that he did not watch the videotape of Lands’s arrest. Although he stated that he disagreed with Dr. Simon’s conclusions, Dr. Molden acknowledged that there were frequent differences of professional opinion in his field.
At the conclusion of the trial, the jury rejected the affirmative defense of not guilty by reason of mental disease or defect and found Lands guilty of second-degree murder and first-degree battery. Lands was also found guilty of using a firearm during the commission of the J^ffenses and was sentenced to a total of 840 months’ imprisonment. He filed a timely notice of appeal from his convictions.
Lands argues that there was not substantial evidence to support his convictions for second-degree murder and first-degree battery because a preponderance of the evidence showed that he suffered from a mental disease or defect at the time of the offenses and thus did not have the required culpable mental states. According to Arkansas Code Annotated section 5-2-312(a) (Repl.2006), it is an affirmative defense to a prosecution if, at the time the defendant engaged in the conduct charged, he lacked the capacity as a result of mental disease or defect to (1) conform his or her conduct to the requirements of the law or (2) appreciate the criminality of his or her conduct. A defendant has the burden of proving the affirmative defense of mental disease or defect by a preponderance of the evidence. Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007). On appeal, we will affirm a jury verdict rejecting the defense of mental disease or defect when there is substantial evidence to support the verdict. Id.
Lands contends that there was no testimony offered to conclusively show that he was not suffering from a mental disease. He points to Dr. Molden’s testimony that he was still suffering from a mental disease or defect in 2010 and asserts that it was only when he was completely taken off his medication that the offenses occurred. Lands recognizes Dr. Simon’s testimony that he did not have a mental disease or defect but argues that it is “ironic” that his opinion changed from 2006 and notes that there is no cure for mental illness.
We agree with the State that Lands failed to meet his burden of proving by a | ^preponderance of the evidence that he suffered from a mental disease or defect sufficient to require acquittal. While Lands challenges Dr. Simon’s opinion, it is the jury’s duty to resolve conflicting testimony regarding mental competence, and the jury is entitled to believe the testimony of the State’s expert over that of the defendant’s expert. Id. The jury was therefore free to give credit to Dr. Simon’s testimony that Lands had no mental illness, or that he was able in any event to appreciate the criminality of his conduct and to conform his conduct in accordance with the law. Thus, there was substantial evidence to support the jury’s verdicts finding Lands guilty of second-degree murder and first-degree battery, and we affirm.
Affirmed.
VAUGHT, C.J., and ROBBINS, J., agree.
. Act 911 was enacted in 1989 and set forth statutory procedures to be followed subsequent to a defendant’s acquittal by reason of mental disease or defect, such as the procedures governing conditional release orders. | [
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Lawson Cloninger, Judge.
This is an appeal from a decree of the chancellor which granted the petition of appellee, R. A. Pickens, acting individually and as trustee of the B. C. Pickens trust, who sought to remove the appellant, Madelyn Ashman, as a co-trustee of the above-named trust. The trust was created by the last will and testament of the appellee’s father and has been in existence since 1932. Appellee has been a trustee since 1936, and appellant, who is appellee’s daughter, has been a trustee since 1961. The trust is involved in farming operations in Desha County where the appellee resides. The trust owns a 43% interest in R. A. Pickens and Son Company which runs a farm shop, a cotton gin and a commissary. It also handles seed, fertilizer and chemicals and the harvesting and marketing of crops. Gross sales of the company have averaged over $3.3 million for each of the last four years. The trust also owns a one-fourth interest in the partnership of R. A. Pickens & Son which owns approximately 9,713 acres of farm land.
The provision in the will providing for the appointment of trustees states in pertinent part:
When my son R. A. Pickens shall attain the age of 21 years, it is my wish and I hereby provide that he shall then become the fourth member of said Trustees of the Trust created by this Will, having equal voice and authority with each of the remaining three Trustees; and said Trustees shall continue to be four in number until a vacancy shall occur by death, resignation, or incapacity of one of the Trustees, after which there shall be three Trustees, INCLUDING my son R. A. Pickens so long as he may live; and after his death the third Trustee selected and appointed by the surviving Trustees shall be a son of said R. A. Pickens if he shall have a son surviving him who has attained his majority; and so on in the same manner during the existence of this Trust, the sound, adult male heirs of my body who have reached their majority, so long as they are available, shall be selected to fill vacancies occurring among said Trustees, so that at least one of said Trustees shall be of my own blood.
Appellant argues three points for reversal which can be reduced to one major point; namely whether the trial court erred in granting appellee’s petition to remove appellant as trustee. Appellant initially argues that the chancellor erred in considering a point not covered in the pleadings. Specifically, appellant argues that it was error for the trial judge to find that the evidence tended to establish the existence of hostility and an impasse between appellant and appellee. Rule 15(b) of the Rules of Civil Procedure states in pertinent part:
When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.
Arkansas appellate courts have recognized the power of the chancellor to treat the pleadings as amended to conform with the proof. Sorrells v. Bailey Cattle Co., 268 Ark. 800, 595 S.W.2d 950 (Ark. App. 1980).
The only issue to be determined is whether the chancellor abused his discretion in removing appellant as trustee of the trust. The removal of a trustee lies in the sound discretion of the trial court and its decision will not be overturned unless there has been an abuse of discretion. Festinger v. Kantor, 272 Ark. 411, 616 S.W.2d 455 (1981).
In the instant case, the chancellor specifically found that appellant was a long-time resident of New York City and the probability was that she would remain there. The court further found that the business of the trust was large-scale farming and that appellant was not qualified to make farming decisions. In fact, appellant had not participated in any of the trust activities other than occasionally signing papers. Lastly, the chancellor found that there was “a clear and unmistakeable enmity” existing between the parties resulting in an impasse as to the selection of a third trustee required by the trust terms. The evidence at trial indicated that when appellee’s son, Andrew, resigned as trustee, appellant refused to cooperate with appellee in the selection of the third trustee. Additional evidence was consistent with the chancellor’s findings. Appellant testified that she did not have any experience in the farming industry other than occasional gardening. Further, she stated that she had not participated in the decisions of the farming operations.
In Blumenstiel v. Morris, Executor, 207 Ark. 244, 180 S.W.2d 107 (1944), the Arkansas Supreme Court stated that removal of the trustee on the ground of non-residence or absence from the jurisdiction is proper only when the absence is of a prolonged character precluding proper attention to the trust or where, in addition to his absence, there is also a neglect of duty. Also in Blumenstiel, supra, the court adopted the rule that mutual hostility between the beneficiaries and the trustee is a sufficient ground for the court to remove the trustee if (1) the provisions of the instrument creating the trust require mutual interchange of ideas, and (2) if the hostility tends to defeat the purpose of the trust.
Applying the above rules to the facts in this case, there was evidence in the record to support a finding by the chancellor that appellant’s absence from the jurisdiction of the trust precluded proper attention to the trust. Appellant herself testified that she did not participate in the major decisions of the trust but only signed papers and documents when sent to her. Appellee indicated an interest in appointing a trustee who was knowledgeable and experienced in farming operations because he was in poor health and would not be able to make all the decisions much longer.
Further, there was evidence to support a finding that hostility between appellant and appellee tended to defeat one of the purposes of the trust; namely, the appointment of an additional trustee. Evidence indicated that appellant refused to cooperate with appellee in the appointment of another trustee. The trust required a mutual interchange of ideas in the appointment of the other trustee and thus met the requirements for removal stated in Blumenstiel v. Morris.
We hold that the chancellor’s decision in removing appellant as trustee was not an abuse of discretion.
Affirmed.
Mayfield and Cooper, JJ., agree. | [
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George K. Cracraft, Judge.
The appellant, Mary Gatewood, appeals from an order of the Circuit Court of Pulaski County upholding the action of the Little Rock School Board in terminating her employment as a teacher for unprofessional conduct which adversely reflected on the integrity of the district and its instructional staff. Although represented by counsel both before the Board and in the Circuit Court, she appears here pro se.
For reversal she urges that her termination was discriminatory, that it was based upon violation of a policy of which she had no knowledge and hence she was denied due process of law; that it was in retaliation for a grievance filed by her against her principal; and that the Board considered instances of her conduct not related to her classroom performance.
The appellee responds to each of these points urged as error, and in addition contends that the court should dismiss the appeal for appellant’s failure to abstract the record in accordance with Rule 9 of the Supreme Court and Court of Appeals.
We find the appellant to be in flagrant violation of our Rule 9 and that her appeal should be dismissed. Our courts have held that this rule applies to persons who elect to appear before this court pro se on appeals from the circuit court. Weston v. State, 265 Ark. 58, 576 S.W. 2d 705. In her initial brief appellant gave us no concise statement of the case as required by our Rule 9(b) and abstracted none of the pleadings, orders, testimony or exhibits referred to in her brief as required by our Rule 9(d). When this deficiency was brought to her attention by appellee’s brief, she filed what we treated as a motion to grant additional time in which to cure the defect by reply brief. In that motion she indicated that she had consulted counsel and had been advised of the requirements of the rule and consequences of failure to comply. We granted her a thirty day extension of time in which to bring herself into compliance. The reply brief, while supplying what we consider to be an adequate statement of the case, contains no abstract of the pertinent parts of the record. Our Rule 9(d) provides that when the court finds the abstract to be flagrantly deficient, the judgment will be affirmed for noncompliance with that rule. We find under the circumstances that this violation is of that nature. In Weston v. State, supra, the court stated:
Rule 9 does not exist as a snare for unwitting litigants or for those who appear before the Court, pro se. In fact, we are inclined to be more lenient in invoking Rule 9 in the cases of persons appearing pro se than in other cases. But the jurisdiction of this Court is limited to appellate jurisdiction only. Arkansas Constitution, Article 7, Section 4; Ark. Stat. Ann. § 27-2101. We do not try anew all litigation or come to the assistance of appellants, pro se or otherwise, by combing the record and re-writing their pleadings for them and re-shaping their prayers into some form of relief which this Court may grant. We look only to see if the record shows that the trial court committed an error prejudicial to the appealing party. To aid in a speedy determination of appeals we, along with most other appellate courts, have promulgated Rule 9(d) placing upon appellants the burden of furnishing an abstract of the record consisting of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents and other matters in the record as are necessary to an understanding of all questions presented to this Court for decision.
Notwithstanding our ruling with regard to Rule 9(d), we have carefully examined appellant’s arguments and the record presented to us and find no error in the action of the Board or the Circuit Court in affirming that action.
Ark. Stat. Ann. § 80-1264.3 (Supp. 1980) provides:
Any certified teacher may be terminated for any cause which is not arbitrary, capricious or discriminatory, or for violating the reasonable rules and regulations promulgated by the school board.
The record reflects that she was terminated by the suprintendent for unprofessional conduct adversely reflecting on the integrity of the school district and its staff. That unprofessional conduct was founded upon testimony, and her own admission that she had offered her students higher grades in exchange for their purchase from her of raffle tickets.
The record reflects that the school district had a written policy that prohibited employees of the school district from using their positions to solicit children or parents in projects which involve the expenditure of money for goods and services and the like. Although she denied knowledge of this rule, there was evidence that she was furnished a copy of it. Whether or not she was aware of it, dismissal for making that offer of higher grades in exchange for purchases of raffle tickets would not be arbitrary, capricious or discriminatory. Absent the regulation this conduct would be just cause for dismissal of a teacher.
While it was shown that appellant issued a correction statement to her students after the investigation was started and no tickets were sold to her students, it is clear that this improper offer was the basis for her termination, that all of the notices required under the so-called Teachers Fair Dismissal Act of 1979 were complied with, and that she was afforded procedural due process of law. She was represented by able counsel both before the Board and in the Circuit Court. We are convinced from the record, as found by the trial court, that she was discharged for her conduct with regard to raffle tickets and that her other arguments in support of reversal of that determination are without merit.
We affirm. | [
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Lawson Cloninger, Judge.
This is an interpleader action filed by Southern Farm Bureau Life Insurance Company, the insurer, in which the proceeds of a life insurance policy in the sum of $48,409.78 have been paid into court. The insured, Walter Calaway, Jr., was shot and killed by his wife, the appellee, Rose Marie Calaway, the primary beneficiary under the policy, and it is the contention of the appellant, Beatrice Calaway, the mother of the insured and contingent beneficiary under the policy, that the killing was under such circumstances as would disqualify appellee as beneficiary.
This appeal is from a finding by the trial court that the killing was justified and that appellee is entitled to the proceeds due under the policy. The only issue on this appeal is whether the findings of the trial court were clearly against the preponderance of the evidence.
The trial court was correct and we affirm.
At about 12:30 a.m., September 25, 1977, decedent arrived at his home, intoxicated, and he continued to drink beer until 4:30 a.m., at which time the fatal shooting occurred. During the intervening four hours, decedent alternately talked angrily about his parents, drank beer, and threatened, slapped, choked and kicked appellee. For a period of some fifteen minutes decedent played with a loaded .44 caliber pistol, pointing it at appellee and inquiring whether she was scared of it. Shortly after 4:00 a.m. decedent staggered from the dining room to the bedroom, then returned to the dining room door and told appellee to bring the gun to him. Decedent returned to the bedroom, lay across the bed, and had propped up his head on one elbow; appellee just stood by the bed, holding the gun. Her ankle had been broken, and she was told to stop limping, that there was nothing wrong with her. Appellee testified that decedent then told her that she just didn’t look bad enough; that he was going to pistol whip her and might as well kill her. Appellee stated that decedent was in the process of getting up when appellee closed her eyes, lifted the gun, and pulled the trigger. It is undisputed that appellee fired the shot, and that the shot was the cause of death. Appellee said she always did what decedent told her to do; that if she had disobeyed him or left the house he would have found her then or at a later time and would probably have killed her.
During the trouble the couple’s two children, ages 2 and 1, awoke and stood at the bedroom door crying. Decedent told the children that if they didn’t shut up he would whip them. Appellee put the children back to bed, and she stated that she was afraid to leave the children in the house with decedent, and that in her injured condition she could not take them with her.
Appellee testified that decedent had beaten her severely many times upon previous occasions, and that she was afraid of him. She stated: “I would not tell him it would hurt, he would just hit harder. Walter was the type of person that when he was drinking that if you didn’t do what he said when he said it then it was just too bad. He would light into me and just start hitting me with his fist and slapping me and kicking me, and this wasn’t just this time, it was years — years of it I mean — the time he shot my cat and shot the hole in the kitchen — I mean that he would do things like that when he was drunk. I was always required to do exactly what he said ...”
Following the incident, appellee was in the hospital eight days. Her injuries, medically verified, included fractures to her ankle, upper leg and jaw, swollen eyes, bruises on the face, arms, back, and throat.
In Couch on Insurance 2d, § 27:154 (I960), it is stated that a beneficiary who kills the insured under such circumstances that the act is justifiable, excusable, or lawfully committed in self defense, or under such circumstances that he has no criminal responsibility for his acts, is not barred from receiving the proceeds of the policy. Thus, the beneficiary is entitled to recover when he killed the insured while acting in self defense. Ark. Stat. Ann. § 41-507 (Repl. 1977) provides:
Justification. Use of deadly physical force in defense of a person.
(1) A person is justified in using deadly physical force upon another person if he reasonably believes that the other person is:
(a) committing or about to commit a felony involving force or violence; or
(b) using or about to use unlawful deadly physical force.
(2) A person may not use deadly physical force in self defense if he knows that he can avoid the necessity of using that force with complete safety:
(a) by retreating, except that a person is not required to retreat if he is in his dwelling and was not the original aggressor ...
It is settled law in Arkansas that when the beneficiary in a policy of life insurance wrongfully kills the insured, public policy prohibits a recovery by the beneficiary. Horn v. Cole, Administrator, 203 Ark. 361, 156 S.W. 2d 787(1941). In the case of Metropolitan Life Insurance Company v. Shane, 98 Ark. 132, 135 S.W. 836 (1911), the Court said:
The willful, unlawful and felonious killing of the assured by the person named as beneficiary in a life policy forfeits all rights of such person therein. It is unnecessary that there should be an express exception in the contract of insurance forbidding a recovery in favor of such person in such event. On considerations of public policy the death of the insured, willfully and intentionally caused by the beneficiary of the policy, is an excepted risk so far as the person thus causing the death is concerned.
A case almost directly in point with the case at bar is Pendergrass et al v. New York Life Insurance Company, 181 Fed. 2d 136 (1950), in which the United States Court of Appeals, 8th Circuit, in applying Arkansas law, found the homicide to be justifiable, and stated:
At this time the deceased was violent and abusive to cross-defendant. When in the bedroom the deceased struggled with the cross-defendant and attempted to choke her. She extricated herself from his hold and flung her body across his in an attempt to hold him on the bed. The deceased threw the cross-defendant to the floor. At that time she had an urge to run but the deceased, with an oath, then demanded his gun. The cross-defendant impulsively began to execute his command as she had done many times before. Just as the cross-defendant was handing the gun to deceased, the latter, with an oath, threatened to ‘kill’ or ‘get’ the cross-defendant. He made this threat as he was arising from the bed, and at that moment the cross-defendant pulled the trigger.
Appellant contends that the testimony of appellee is unworthy of belief, because of inconsistent statements between her deposition and the testimony at the trial. In his ruling, the trial judge made the following specific finding:
It is contended that she is unworthy of belief, because her statements to the Court conflict with those given in a pretrial deposition. When those statements relied upon are read in context and along with the whole deposition, the Court finds no inconsistency.
We agree with the trial court that appellee’s testimony, when read in context, is not inconsistent. In Digby v. Digby, 263 Ark. 813, 567 S.W. 2d 290 (1978), the Court stated:
While this Court considers the evidence on a chancery appeal de novo, it will not reverse the chancellor unless it is shown that the lower court decision is clearly contrary to a preponderance of the evidence. Particularly where the credibility of witnesses appearing before the chancellor is concerned, this Court attaches substantial weight to the chancellor’s findings on material issues of fact.
The trial judge believed the testimony of appellee, and we not only recognize the superior position of the trial judge to gauge the credibility of the witness, there is nothing in the record to cause this Court to doubt the truthfulness of appellee. Appellee was in her dwelling and she was not required to retreat from the home. Her testimony was that she feared for her life and the safety of the couple’s small children, and evidence given by decedent’s closest friend and drinking companion indicated that appellee’s fears were well founded. The companion testified that he had been present on a previous occasion when decedent had severely beaten appellee, and that he observed decedent severely punish the older child, a two-year-old girl, when the child did not perform as decedent demanded. On both occasions, the actions of the decedent were of such an extreme nature that the companion intervened and persuaded decedent to desist.
The trial court found, and we hold, that appellee had justification to reasonably believe that decedent was about to commit a felony involving force or violence or was about to use unlawful deadly physical force.
The decision of the trial judge is affirmed.
Cracraft, J., not participating. | [
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George K. Cracraft, Judge.
The appellant, Raymond E. Thomas, was charged by information with the crimes of burglary and theft of property of the value in excess of $100. On the date set for trial, but before the jury was empaneled, the prosecuting attorney amended the information to include an additional count charging the appellant with having been convicted of felonies on two prior occasions and seeking enhanced sentences under Ark. Stat. Ann. § 41-1001 (Repl. 1977). The appellant was found guilty of the two initial charges and thereafter additional testimony was taken on the “habitual offender” count. The jury returned a verdict which imposed enhanced sentences of ten years on the theft charge and fifteen years on the burglary. The appellant does not question the jury’s verdict of guilt on the initial charges of burglary and theft. This appeal challenges only the sentences imposed, and advances four points of error in support of his position.
The appellant first contends that the trial court erred in permitting the information to be amended on the date of trial to include the “habitual offender” charge. He urges that this denied him that notice and opportunity to prepare and defend required by due process. We find no merit to this contention.
The record reflects that before the jury was empaneled the court held an in-chambers hearing at the . request of the appellant’s attorney. The purpose of the hearing was to ascertain in the record that the appellant fully understood the possible consequences of his refusal to accept a plea bargain recommended by his counsel. In the course of that hearing counsel explained to appellant the sentences which a jury might impose on the basic charges and the possible effect of a jury’s finding of guilty on the amended charge of prior felony convictions. The appellant acknowledged that he fully understood the consequences and was steadfast in his refusal to enter the plea recommended by counsel. Neither appellant nor his counsel at that time made any objection to the amendment, requested a continuance or bill of particulars, or offered to make a showing of any prejudice resulting from that amendment. The first objection to the amendment was made after the jury had retired to consider its verdict on the basic charge; again no motion for continuance was made. Under the circumstances here present we find no error in permitting the amendment or in submitting the question to the jury.
Proper amendments of information are permitted at any time before a case is submitted to the jury so long as the amendment does not change the nature and degree of the crime charged and the accused is not surprised. Washington v. State, 248 Ark. 318, 451 S.W. 2d 449; Finch v. State, 262 Ark. 313, 556 S.W. 2d 434.
An amendment adding a charge under the Habitual Offender Act creates no new offense or independent crime, but simply allows evidence on which the punishment may be enhanced in the event of conviction of the basic charge, Finch v. State, supra. Although such amendments are permitted, the appellant would have been entitled to a continuance or a bill of particulars if he had requested it. As no motion for continuance or bill of particulars was made and there was no showing, or offer to show, at any stage of the proceedings that prejudice would or did result from the amendment, we cannot say that the trial court erred in permitting this amendment and submitting the matter to the jury. Finch v. State, supra; Washington v. State, supra.
The appellant next maintains that the trial court erred in admitting into evidence certified copies of orders committing the appellant to the Department of Correction upon pleas of guilty to the crime of robbery on two prior occasions. The appellant objected on grounds that there was no proper foundation and the documents did not show that the appellant had been represented by counsel or knowingly waived that right. Over appellant’s objection the docket sheets in the two cases were admitted for the limited purpose of showing that representation. We find no error.
In Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), the Supreme Court of the United States declared that where enhanced sentence is sought to be imposed, records of prior convictions which are silent as to representation of counsel give rise to a presumption that the defendant was denied that right. Our courts, recognizing that mandate in Klimas v. State, 259 Ark. 301, 534 S.W. 2d 202 (1976), declared:
It seems clear to us that when evidence, in whatever form, of a prior conviction is offered which is silent as to representation of the defendant by counsel or his waiver of the right of assistance of counsel, the state must first lay a foundation for its admission by evidence tending to show that defendant was, in fact, represented by counsel or that he had knowingly and intelligently waived his right to the assistance of counsel.
The clear purpose of the rule is to require that when a prior conviction is to be used for the purpose of enhancing punishment, the court must be convinced that the accused was not denied his constitutional right at the time of the earlier conviction.
The docket entries in question are as follows:
(Cause 10,567 — Robbery)
4-28-71 Plea of guilty as to Thomas
X Royce Weisenberger excused X
Plea taken under advisement X
Charles Potter appointed X
Same order as in 10,564 concurrent.
(Cause 10,564 — Robbery)
4-28-71 Plea of guilty as to Thomas
X Same order as in 10,567 X
Sentence of 15 years.
The captions on these sheets showed initial representation by Mr. Weisenberger, whose name was interlined and that of Mr. Potter substituted.
While these docket entries do not purport to recite all of the proceedings had at the time, they do demonstrate that the appellant was represented by Mr. Weisenberger when the plea of guilty was entered and that Mr. Potter was appointed to represent him before the plea was accepted and sentence imposed. Unlike Klimas and Burgett this record is not silent concerning legal representation. The testimony of the clerk and the docket entries certainly do not constitute that silence from which the presumption arises. Reeves v. Mabry, 480 Fed. Supp. 529 (W. D. Ark. 1979).
Ark. Stat. Ann. § 41-1103 (Repl. 1977) provides that a prior conviction for these purposes may be proved by “any evidence that satisfies the trier of fact beyond a reasonable doubt that the defendant was in fact previously convicted.” The question on appeal is whether there is substantial evidence from which a jury might have found those previous convictions. Elmore v. State, 268 Ark. 225, 595 S.W. 2d 218. Here the proof of prior convictions consisted of copies of orders of commitment from a court of competent jurisdiction, duly certified under seal. They were clearly admissible under Rule 902 (1), Uniform Rules of Evidence, and competent to prove prior convictions, provided the proper foundation for their introduction had been made. The foundation for their admission required in Burgett and Klimas was properly established by the docket entries of the court in those two cases. The docket entries so admitted into evidence were properly identified by the clerk of the court whose duty it was to keep and record such records. Under Rule 803(8), Uniform Rules of Evidence, such records of public officers are not hearsay. The trial court determined that the testimony of his clerk, based on docket entries made at the time, was proper for the jury’s consideration. We find no sound basis for holding the court’s determination in this regard to be erroneous. Reeves v. State, 263 Ark. 227, 564 S.W. 2d 503 (1978).
The appellant finally assigns as error the court’s exclusion of the prosecuting witness’s proffered testimony that he did not desire the appellant to be imprisoned for his crime. In his proffer of proof the witness stated that although he did not know the appellant, his wife had formerly been married to appellant’s brother by whom she had the two children now living in the witness’s household. He was concerned over the effect that imprisonment of their uncle might have upon these members of his household. The appellant contends that the evidence should have been admitted in mitigation of the sentence.
We agree with the trial court that the desires of the victim in this respect are not relevant to either the issue of guilt or of mitigating circumstances for the criminal act. In this case the guilt of the appellant was overwhelmingly proved by the evidence and freely and voluntarily admitted by him in a pre-trial statement. Criminal acts are punishable by law, not for the benefit or satisfaction of the victim, but for the protection of society as a whole. The enhanced sentence provided by our law for multiple offenders is afforded for the protection of that society against one whose prior punishment does not appear to have deterred his criminal acts. Conley v. State, 272 Ark. 33, 612 S.W. 2d 722 (1981).
We affirm.
Mayfield, C.J., Glaze and Corbin, JJ., dissent. | [
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James R. Cooper, Judge.
The appellant in this case was convicted of theft of property in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977 and Supp. 1979), and was sentenced to 20 years in the Arkansas Department of Corrections as an habitual offender. The appellant urges as grounds for reversal that the Court was in error in refusing to suppress a statement made by appellant in that he did not make a knowing and intelligent waiver of his right to counsel. Appellant also urges that the Court erred in refusing to give a requested instruction.
I.
THE COURT ERRED IN DENYING DEFENDANT’S (APPELLANT’S) MOTION TO SUPPRESS A STATEMENT TAKEN BY CAPTAIN GARY WILSON IN THAT HE DID NOT MAKE A KNOWING AND INTELLIGENT WAIVER OF HIS RIGHT TO COUNSEL.
The appellant was arrested on August 1, 1980, and was found to be in the possession of a stolen vehicle. He was later charged with theft of property and it was further alleged that he was subject to an extended term of imprisonment as an habitual offender under Ark. Stat. Ann. § 41-1001 (Repl. 1977). On August 5, 1980, the appellant gave a statement to Captain Gary Wilson of the Newport Police Department. In that statement he confessed to the crime with which he was charged and gave a detailed account of prior felony convictions going back to 1949. The record reflects that upon his arrest appellant was given his Miranda rights and he gave a confession to the officer who arrested him. The record also reflects that Captain Wilson advised him of his Miranda rights twice. The trial court denied a motion to suppress the statement given to Captain Wilson. The State did not use the statement given to Captain Wilson during its case in chief ón guilt, but following a verdict of guilty by the jury the State used the testimony of Captain Wilson to prove the prior felony convictions.
Ark. Stat. Ann. § 41-1003 (Repl. 1977) provides as follows:
Proof of previous conviction. — A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trier of fact beyond a reasonable doubt that the defendant was convicted or found guilty. The following are sufficient to support a finding of a prior conviction or finding of guilt:
(1) a duly certified copy of the record of a previous conviction or finding of guilt by a court of record; or
(2) a certificate of the warden or other chief officer of a penal institution of this state or of another jurisdiction, containing the name and fingerprints of the defendant, as they appear in the records of his office; or
(3) a certificate of the chief custodian of the records of the United States Department of Justice, containing the name and fingerprints of the defendant as they appear in the records of his office.
Under the statute cited above the State had several options as to the method it used to prove the prior convictions. Appellant does not complain that the State used an incorrect method, but complains that the circumstances required a conclusion that he could not have made a knowing or intelligent waiver of his right to counsel. It is clear that our law presumes that a statement made while in custody is involuntary and the burden is upon the State to show otherwise.Harvey v. State, 272 Ark. 19, 611 S.W. 2d 762 (1981); Earl v. State, 272 Ark. 5, 612 S.W. 2d 98 (1981); Buey v. State, 271 Ark. 768, 610 S.W. 2d 576 (1981). When we review the voluntariness of a confession, we must make an independent determination based on:
... the totality of the circumstances, with all doubts resolved in favor of individual rights and safeguards, and will not reverse the trial court’s holding unless it is clearly erroneous. Harvey, supra.
Essentially, appellant argues that because Captain Wilson knew, or should have known, that appellant was to be taken before the Municipal Judge for his first appearance within a few hours and that at that time the question of appointed counsel would arise, the statement should not have been taken. Appellant argues that because of this knowledge on the part of the police and the lack of knowledge on the part of the appellant, he could not have knowingly and intelligently waived his right to counsel.
The appellant states that it is clear that he needed an attorney at the time Captain Wilson interviewed him, but that is not a basis for reversal. It may be argued that any defendant who waives his right to counsel should not have done so and that he would have been better off had he had the services of a qualified attorney. There is no allegation raised by appellant that he was mistreated in any way, or that the length of time he had been incarcerated had anything to do with the voluntariness of his statement.
Having examined the circumstances and allegations raised we are unable to say that the finding by the trial court that the statement was voluntary is clearly against the preponderance of the evidence.
Appellant cites Sutton v. State, 262 Ark. 492, 559 S.W. 2d 16 (1977), as being practically on all fours. However, in Sutton, the indigent defendant gave a statement following his appearance at a preliminary hearing, but prior to the time when counsel was appointed for him. The Supreme Court in that case held that the record was insufficient to establish the fact that following his appearance at a preliminary hearing he had knowingly and intelligently waived his right to counsel. That case is clearly distinguishable from the situation here. However, we find that the case must be reversed and remanded on another related issue.
The Arkansas Supreme Court has held that where the proof of prior convictions does not indicate that the defendant was represented by counsel at the time of his prior convictions acceptance of such evidence is error. McCroskey v. State, 272 Ark. 356, 614 S.W. 2d 660 (1981).
In Klimas v.State, 259 Ark. 301, 534 S.W. 2d 202 (1976), the Arkansas Supreme Court stated:
It seems clear to us that when evidence, in whatever form, of a prior conviction is offered which is silent as to representation of the defendant by counsel or his waiver of the right of assistance of counsel, the state must first lay a foundation for its admission by evidence tending to show that defendant was, in fact, represented by counsel or that he did knowingly and intelligently waive his right to the assistance of counsel.
The State offered no evidence as to whether or not appellant had been represented by counsel on any of his seven prior felony convictions. The only evidence found in the record on this point is found in the testimony of appellant in which he indicated that on a manslaughter conviction his attorney and the prosecutor had worked out a plea agreement.
In Duke v. State, 266 Ark. 697, 587 S.W. 2d 570 (1979), the Supreme Court of Arkansas indicated that where the question as to whether or not appellant was represented by counsel on prior convictions was not raised in the trial court, the appellate court would not consider such an objection for the first time on appeal. In Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980), the Court emphasized that Arkansas does not have a “plain error” rule as is found under federal law, but pointed out that a possible exception to the Arkansas rule could be found in the Uniform Rules of Evidence, Rule 103 (d):
Nothing in this rule precludes taking notice of errors affecting substantial rights although they were not brought to the attention of the court. Ark. Stat. Ann. § 28-1001 (Repl. 1979).
It is clear a substantial right of appellant was involved here and that the admission into evidence of a prior criminal conviction which was constitutionally infirm under the standards of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R. 2d 733 (1963) is inherently prejudicial. Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967).
The judgment is reversed and the cause remanded for a new trial unless the prosecutor elects first to assume the burden of proving at a hearing that Addington was in fact represented by counsel in the earlier cases. Should that burden not be met, a new trial will be necessary.
II.
THE COURT ERRED IN REFUSING TO GIVE DEFENDANT’S (APPELLANT’S) REQUESTED INSTRUCTION NO. 1. (AMCI 4002)
Although we have reversed and remanded the case on another point in the event there is a new trial we feel it would be helpful to deal with the second point raised by appellant.
The instruction requested by appellant reads as follows:
The State must also prove beyond a reasonable doubt that defendant knowingly engaged in prohibited conduct. (AMCI 4002).
Definition
“Knowingly” — A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. (AMCI 4002)
The instruction given by the Court is as follows:
Edward Addington is charged with the offense of theft of property. To sustain this charge, the State must prove beyond a reasonable doubt that Edward Adding-ton knowingly took the property of another person with the purpose of depriving the owner thereof.
“Purpose”. A person acts with purpose with respect to the results of his conduct when it is his conscious object to cause the results.
“Knowingly”. A person acts knowingly with respect to his conduct when he is aware the conduct is of that nature.
Appellant does not argue that the instruction actually given by the Court is an incorrect statement of the law. Appellant does argue that there is more than one definition of “knowingly” contained in the various model instructions in use in Arkansas and that the instruction found in AMCI 4002 should have been used. Appellant correctly points out that the definition of “knowingly” under AMCI 2203 and AMCI 4002 are not the same. Further the appellant correctly points out that the State concedes that the requested instruction could have been given. We do not find error in the refusal of the trial court to instruct as requested by appellant.
In Byers v. State, 267 Ark. 1097, 594 S.W. 2d 252 (Ark. App. 1980), the Arkansas Court of Appeals stated:
... Where the subject matter of a requested instruction has been sufficiently covered by the instruction given, there is no error in the court’s refusal to give the requested instruction. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979).
A trial court is not required to instruct the jury on the law in every possible manner even though a correct statement of it may be prepared by the defense counsel. Butler v. State, 261 Ark. 369, 549 S.W. 2d 65 (1977).
... Instructions which are cumulative are not necessary.
In this case we do not find any incorrect statement of the law in the instruction given by the Court, and find no error in the Court’s refusal to instruct as requested. The additional instruction as to the definition of the word “knowingly” would have been cumulative and probably would have served to confuse the jury rather than to provide additional information to it.
Reversed and remanded. | [
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Donald L. Corbin, Judge.
This is an appeal from a jury verdict in the Circuit Court of Lonoke County awarding appellee, Jimmie J. Glover, $5,430.74 against appellant, Farm Bureau Mutual Insurance Company of Arkansas, Inc.
In September, 1978, Jimmie Glover and Earnest Hill (co-defendant below) reached an oral agreement whereby Hill was going to use a 1977 truck owned by Jimmie Glover on a trial basis to see if Hill would be interested in purchasing it. It was undisputed that Hill and Glover agreed that during the time the truck was being operated and tested by Mr. Hill, Mr. Hill would be responsible for its upkeep, including insurance. It is also undisputed that on September 19, 1978, Mr. Hill’s brother-in-law called appellant’s office in Lonoke and secured physical damage coverage on the truck in question. This coverage was placed with the appellant under Mr. Hill’s already existing policy of insurance which covered all of the fleet of trucks owned by Mr. Hill.
In October, 1978, Mr. Hill advised Mr. Glover that because of the condition of the truck, the price, the amount of the bank lien and other matters he was not interested in purchasing the truck and he was unwilling to go through with his initial proposal. The parties at that point reached a second agreement whereby Glover was to retain title to the truck, be responsible for all maintenance and upkeep thereon and was to haul minnows for Mr. Hill to Texas at the rate of $300.00 per trip.
Following an accident in the State of Texas, Mr. Glover contacted the Farm Bureau office and made claim under Mr. Hill’s policy. Farm Bureau, in the mistaken belief that Mr. Hill owned the truck, evaluated the claim and sent Mr. Hill a draft in the amount of $5,430.74. Farm Bureau obtained the draft back from Hill and refused to make any payment to Glover after discovering that Hill had no proprietary or ownership interest in the truck and because Mr. Glover had never been listed on the policy as an insured. Glover then brought suit against Hill and Farm Bureau Mutual Insurance Company.
At trial, after the plaintiff’s case was presented, the Court ruled as a matter of law that Hill had no insurable interest in the truck at the time, of the accident and granted Farm Bureau’s motion for directed verdict on this issue, The trial court submitted to the jury the question of whether Hill and Glover had an oral agreement requiring Hill to procure and maintain insurance on Glover’s truck. The jury returned a verdict in favor of Hill and against Farm Bureu Mutual Insurance Company. Thereafter, Farm Bureau filed a motion for a judgment notwithstanding the verdict, asserting that there was no substantial evidence supporting a theory of liability on which it would be liable to Glover; and further, that since the jury had found that Hill had not made any oral agreement with the plaintiff, as a matter of law, no recovery could be had against Farm Bureau. The motion was overruled. Farm Bureau then appealed to this Court. Hill is not a party to this appeal.
The Arkansas Supreme Court has stated that insurance proceeds are payable only to the person whose interest is covered by the policy, provided he has an insurable interest at the time of making the contract and at the time of the loss. See Barner v. Barner, 241 Ark. 370, 407 S.W. 2d 747; National Bedding and Furniture Industries, Inc. v. Clark, 252 Ark. 780, 481 S.W. 2d 690.
Tne jury was given the following instruction:
A contract is an agreement which creates an obligation. There must be competent parties, a subject matter, a legal consideration, a mutuality of agreement. Agreement is the, expression of two or more persons of a common intention to affect their legal relations. It consists of their being of the same mind and intention concerning the matter agreed upon.
The jury found as a matter of fact that there was no underlying agreement between Hill and Glover to purchase insurance. It follows that there was no basis upon which a verdict against Farm Bureau could be returned. When taken with the fact that the trial court ruled as a matter of law that on the day of the alleged accident Hill had no insurable interest in the truck, it follows that there is no basis for a judgment against Farm Bureau.
We would also point out the doctrines, of waiver and estoppel are not applicable in this case. Our Supreme Court has specifically held that in view of the strong public policy against enforcing insurance contracts in which there is no insurable interest involved, the doctrines of waiver and estoppel are completely inapplicable to create coverage which otherwise does not exist under the policy or to place therein a risk expressly excluded from the policy. Life & Casualty Insurance Co. of Tennessee v. Nicholson, 246 Ark. 570, 439 S.W. 2d 648 (1969); Batesville Insurance & Finance Co. v. Butler, 248 Ark. 776, 453 S.W. 2d 709 (1970).
This court has the power and duty to set aside a verdict totally unsupported by substantial evidence or unsupported by facts sufficient to support the award made by the jury. Coca-Cola Bottling Co. of Arkansas v. Eudy, 193 Ark. 436, 100 S.W. 2d 683; Midwest Bus Lines, Inc. v. Williams, 243 Ark. 854, 422 S.W. 2d 869 (1968).
Reversed and dismissed.
Mayfield, C.J., dissents.
Glaze, J., not participating. | [
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George K. Cracraft, Judge.
The appellant, Mack Financial Corporation, Inc., originally brought this action in the Circuit Court of Pulaski County against the appellee, Carter Oil Company, Inc., for the balance due it on an installment contract for the purchase of a truck which had been destroyed by fire. The appellee filed its answer and counterclaim alleging that the appellant had been at fault in the failure to procure insurance on the truck, denying its liability to pay the debt for that reason, and by way of counterclaim asking for damages in the amount of the difference between the debt sued on and the full value of the uninsured truck. The complaint named as co-defendants Fred S. James and Company of Arkansas, Inc. and the Home Insurance Company, alleging that the Fred S. James and Company of Arkansas, Inc., appellee’s insurance broker, had been negligent in the issuance of a policy of insurance ordered through it and for reformation of a policy of insurance issued by Home Insurance Company. The cause was then transferred to Chancery.
At the conclusion of the trial the chancellor dismissed the appellant’s complaint as to all of the defendants and entered judgment against the appellant in favor of the appellee on its counterclaim. The appellant does not appeal from the action of the chancellor in dismissing the complaint as to the co-defendants but contends that the chancellor erred in dismissing his complaint as to Carter Oil Company, Inc., and in granting the appellee judgment on its counterclaim.
The facts, as found by the chancellor, reflect that on August 30, 1975, Texarkana Mack Sales, Inc. sold a 1975 Mack truck identified as “No. 674” to 'East Texas Leasing Corporation. The transaction was financed by Mack Financial Corporation, the appellant herein. The East Texas Leasing Corporation in turn leased this truck to the Carter Construction Company, Inc. On April 1, 1977, Carter Oil Company (a separate corporation owned by the same principal stockholder) entered into an agreement with East Texas Leasing Corporation and Carter Construction Company, Inc. whereby Carter Oil assumed all the obligations of the East Texas Leasing and Carter Construction under the original installment contract. Both the original installment sales agreement and the transfer agreement place the obli gation of insuring the truck on the vendee, Carter Oil.
Prior to the date of the assumption the vehicle was insured by Home Insurance Company in the name of East Texas Leasing and Carter Construction, as owners, with loss payable to Mack Financial.
Three weeks prior to the execution of the transfer agreement Mack Financial, in accordance with an established policy, wrote a letter to both East Texas Leasing and Carter Construction informing them that the policy which covered the truck in question was due to expire on April 17th and requested that it be furnished with a copy of a renewal policy. A copy of this letter was sent to the Fred S. James Company, Carter Construction’s insurance broker. Again on March 31, 1977, the day before the transfer and assumption agreement was executed, Mack Financial sent a second letter to East Texas Leasing, Carter Construction and the Fred S. James Company, reminding them that the policy was due to expire and again requesting a copy of a renewal policy. On April 12th, prior to the expiration date of the existing policy but after the date of the transfer, Fred S. James Company, without knowledge of the transfer, forwarded its certificate to Mack Financial, certifying insurance on the truck but incorrectly listing Carter Construction as the insured. Upon receipt of the certificate, Mack Financial requested that the certificate be reexecuted with additional provisions. Mack Financial prepared such a certificate and furnished the same to Fred S. James Company for execution. This certificate prepared by Mack Financial erroneously listed East Texas Leasing and Carter Construction as the named insureds. No mention of the transfer of interest to Carter Oil was made. Fred S. James Company executed the submitted certificate showing Carter Construction as insured and returned it to Mack Financial on April 16th. The premium on the policy was charged to and paid by Carter Construction without discovery of the error. The premiums were subsequently refunded by Home Insurance.
On November 29, 1977, the truck in question was severely damaged by fire, and at the time of that loss it was still insured by Home Insurance policy showing Carter Construction as the named insured. Home Insurance denied the claim for the loss of the truck on the grounds that Carter Construction had no insurable interest in it and Carter Oil had no insurance upon it. There was evidence that while Home Insurance would and did insure this truck for use in construction business, it would not have insured a truck hauling oil or other flammables. Carter Oil’s other trucks were insured by another insurer.
In dismissing the plaintiff’s complaint with respect to all defendants the chancellor found that even though the duty to procure the insurance in accordance with the agreement was upon Carter Oil, Mack Financial had assumed that duty of notifying the broker and the insurer of the change of ownership and use, and that due to its negligence Carter Oil was entitled to redress. The chancellor found that the value of the truck at the time of the destruction exceeded the amount of the indebtedness against it by the sum of $5,495.47, and entered judgment for that amount for Carter Oil on its counterclaim.
Mack Financial contends that the trial court erred in its finding that they had undertaken to notify the insurance companies of the . change in ownership. They argued that the transfer agreement placed the burden upon Carter Oil to procure the insurance on the vehicle and that the action of the chancellor effected a variance upon the terms of the written instrument. We do not view the action of the chancellor as having that effect.
The chancellor did find that the contract imposed the duty upon Carter Oil but he found that the appellant, although not obligated under the transfer agreement to take action with regard to hazard insurance, undertook to do so, and having assumed the duty, its negligent course of conduct in the execution of that duty entitled Carter Oil to relief.
Mack Financial contends that it was not in the business of procuring insurance and did not attempt to do so in this case. It was their position that they only required that all collateral held by them be so insured and that the action of its agents in this case was taken merely to verify that coverage was in force. It further contends that Carter Oil was the party who attempted to insure the vehicle. Evidence in support of these positions was offered in their behalf.
There was, however, evidence before the court that Mack Financial had assumed the duty of assuring the insurance in the name of Carter Oil, upon issuing its own erroneous certificate of insurance. There was evidence, and the court found, that Mack Financial did prepare a formal certificate of insurance, submitted to Fred S. James Company, that showed the vehicle in question to be owned by Carter Construction rather than Carter Oil. The chancellor further found that an additional duty was imposed upon Mack Financial in the certificate of insurance prepared by it, to notify the insurer of any change in ownership or if an increase in hazard had occurred. This it failed to do. It was not disputed that Mack Financial had full knowledge of the transfer and failed to correctly communicate that fact to the insurer, and thereafter failed to discover or correct its mistake.
Mack Financial’s insurance clerk admitted that she made the mistake in preparation of the certificates and erroneously showed the ownership of the truck. Mr. Martin, president of Fred S. James Company, testified that it was normal procedure for Mack Financial in its dealings with him to give notice forty-five days prior to a renewal that they needed a certificate of insurance and that Mack Financial normally listed the insured and vehicles to be insured. The first person to contact Fred S. James Company is usually the lienholder. In this case they received several notices from Mack Financial showing the vehicle to be owned by the wrong corporation. Mr. Martin further testified that in issuing the certificate he relied solely on information furnished them by Mack Financial and that none was received from Carter Oil.
There was testimony from Mr. Carter, who was the principal stockholder in both of the Carter corporations, that in past dealings both Mack Truck Sales and Mack Financial had always assumed responsibility for getting the insurance issued and in force, and that Carter paid the premiums. In this case he left it up to Mack Financial and the Fred S. James Company to get the policy in effect.
Findings of the chancellor will not be reversed unless found to be clearly against a preponderance of the evidence, and since preponderance turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor in that regard. Hackworth v. First National Bank of Crossett, 265 Ark. 668, 580 S.W. 2d 465; Winkle v. Grand National Bank, 267 Ark. 101, 590 S.W. 2d 852.
We find no error in the chancellor’s decision denying Mack Financial recovery for its loss resulting from its own neglect.
Mack Financial further contends that the chancellor erred in entering judgment against it for the amount of Carter Oil’s equity in the truck, as if the insurance which ought to have been in force was in force. We agree.
While we hold that Mack Financial breached its duty and was negligent in not discovering that breach, we find a corresponding duty rested upon Carter Oil to make some inquiry and examination to determine if the insurance was in force. Had this loss occurred closer in time to the initial neglect of Mack Financial, a recovery of Carter Oil’s equity might well have been warranted based upon that initial reliance. However, a period of seven months expired between the error and the loss. Although Mack Financial was negligent in not discovering and correcting its error, this initial failure to correctly communicate the change in ownership and use of the truck did not fully and finally relieve Carter Oil of its duty to protect its own interest.
We hold that Carter Oil had a corresponding duty to-make reasonable inquiry and examination of its own records to determine that the truck was properly insured. Ordinary prudence demanded that it investigate to assure that the requested insurance was in force. The evidence shows that no effort whatever was made by Carter Oil to do so during the entire seven month period.
The counterclaim should be dismissed as without merit due to Carter Oil’s own neglect.
Affirmed in part and reversed in part.
Glaze, J., not participating.
Mayfield, C.J., concurs.
Cooper, J., dissents. | [
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JAMES R. Cooper, Judge.
The appellant entered a conditional plea of guilty to driving while intoxicated pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure. The appellant was fined $250.00, ordered to pay court costs of $403.00, and had his driver’s license suspended for ninety days- He was also ordered to complete an alcohol safety program and sentenced to one day in jail. On appeal, he argues that the trial court erred in denying his motion to suppress because the roadblock at which he was stopped was not implemented in a lawful manner. We disagree and affirm.
In reviewing a trial court’s decision to deny an appellant’s motion to suppress, this Court makes an independent determination based on the totality of the circumstances and will reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Roark v. State, 46 Ark. App. 49, 876 S.W.2d 596 (1994). We view the evidence in the light most favorable to the appellee. Beshears v. State, 320 Ark. 573, 898 S.W.2d 49 (1995).
The appellant was stopped at a roadblock on August 11, 1994, conducted by Springdale Police Officers Mike Bell and Mike Peters. Lieutenant John Lewis, supervisor and shift commander in charge at the time, authorized the roadblock, approved the site, and gave Officer Bell instructions on how to proceed. Lieutenant Lewis testified that he had previously participated in numerous roadblocks. He testified that he instructed the officers not to profile certain cars or certain people, and not to stop the cars at random. He testified that the officers had a set procedure on how they were going to conduct the roadblock and that he confirmed the plan.
The roadblock was set up in a road construction area near a junior high school where traffic was restricted to two lanes and the speed limit was reduced to thirty miles an hour. There had been reports of reckless driving and speeding in that area. Officer Bell testified that there were barrels guiding the traffic through the particular area and that they adjusted the barrels and their vehicles to facilitate the traffic flow. He testified that drivers had to negotiate the barrels before they set up the roadblock and that their presence increased visibility to the area. The officers carried flashlights and wore bright orange reflective safety vests with the word “POLICE” on them in large letters. The blue lights and headlights were activated on the two police vehicles utilized in conducting the roadblock.
Officer Bell testified that the purpose of the roadblock was to check the sobriety of the drivers and to check for valid vehicle registration, driver’s licenses, and insurance. He further stated that the purpose of the roadblock was discussed with Lieutenant Lewis. Every vehicle approaching the roadblock was stopped for a period of no more than thirty seconds, and every fifth vehicle was stopped for a more detailed check that lasted less than two minutes. Officer Bell testified that they explained to every vehicle what they were doing and asked every fifth driver for his driver’s license, registration, and insurance. The officers called in the driver’s license numbers, and the radio operator informed them if the licenses were valid and if there were any outstanding warrants. The radio dispatch logs indicated that the officers called in to check eighteen drivers’ licenses during the roadblock, which lasted for approximately one hour.
Officer Bell testified that he noticed the odor of intoxicants coming from the appellant’s vehicle and on the appellant’s breath when he stopped at the roadblock. He further testified that he saw a plastic cup in the console of the vehicle containing some ice and liquid. He stated that the appellant’s vehicle was not one of the fifth vehicles but that the appellant was detained for a further check because it appeared that he had been drinking.
The appellant makes some twenty objections to the conduct of the officers and the manner in which the roadblock was imple mented. We first address his arguments that the roadblock was unconstitutional under the Arkansas Constitution. The appellant contends that Article 2, Section 15, of the Arkansas Constitution provides greater protection against unreasonable searches and seizures than the Fourth Amendment to the United States Constitution. We dispose of this argument by noting that our Supreme Court declined to make such a finding in Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995).
A Fourth Amendment “seizure” occurs when a vehicle is stopped at a checkpoint. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). The question thus becomes whether such seizures are reasonable under the Fourth Amendment. Id.
In Camp v. State, 26 Ark. App. 299, 764 S.W.2d 463 (1989), we found the roadblock that was established for the purpose of checking driver’s licenses and vehicle registration was reasonable under the Fourth Amendment. The permissibility of vehicle stops made on less than reasonable suspicion of criminal activity must be judged in each case by balancing the effect of the intrusion on the individual’s Fourth Amendment rights against the promotion of a legitimate government interest. Camp, supra. In Sitz, supra, the United States Supreme Court held that a state’s use of sobriety checkpoints does not violate the Fourth and Fourteenth Amendments to the United States Constitution. The Supreme Court determined that the balancing analysis in Brown v. Texas, 443 U.S. 47 (1979), and United States v. Martinez-Fuerte, 428 U.S. 543 (1976), provided the governing framework for ascertaining the reasonableness of a sobriety-checkpoint seizure. In Brown, the Supreme Court stated:
Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.
A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.
443 U.S. at 50-51 (citations omitted).
Some of the various factors that have been considered in applying the balancing analysis include: the supervision of the individual officers in the field, the limited discretion of the officers in stopping vehicles, the amount of interference with legitimate traffic, the subjective intrusion on the part of the travelers, the supervisory control over the operation, and the availability of a less intrusive means of promoting the legitimate government interest. See Michigan Dept. of State Police v. Sitz, supra; Brown v. Texas, supra; Delaware v. Prouse, 440 U.S. 648 (1979); United States v. Martinez-Fuerte, supra; and United States v. Brignoni-Ponce, 422 U.S. 873 (1975). See generally, Annotation, Validity of Routine Roadblocks by State or Local Police for Purpose of Discovery of Vehicular or Driving Violations, 37 A.L.R.4th 10 (1985 & Supp. 1995).
The appellant argues that many of the factors required for a checkpoint to pass constitutional muster were absent or deficient in the roadblock in the case at bar. He relies on cases from other jurisdictions that have found certain factors, such as written guidelines, a local or statewide policy or program, advance publicity, data on site selection, and supervision at the site, to be constitutional prerequisites to a valid checkpoint. However, we find those factors to be merely relevant matters to be considered by a court in the overall balancing process. See e.g., People v. Banks, 6 Cal. 4th 926, 863 P.2d 769, 25 Cal. Rptr. 524 (1993); O’Kelley v. State, 210 Ga. App. 686, 436 S.E.2d 760 (1993); State v. Barker, 252 Kan. 949, 850 P.2d 885 (1993); People v. Cascarano, 155 Misc. 2d 235, 587 N.Y.S.2d 529 (1992). Thus, we conclude, after the requisite balancing test, that the roadblock in the case at bar did not constitute an unreasonable seizure under the Fourth Amendment.
Here, the roadblock was established for the purpose of determining that licensed and safe drivers were using the public roadway. “No one can seriously dispute the magnitude of the drunken driving problem or the State’s interest in eradicating it.” Sitz, 496 U.S. at 451. In Camp, we noted the importance of qualified drivers and safe vehicles using the highways and that we were not aware of a less intrusive means of making that determination. There is no evidence that the roadblock in the case at bar was established as a subterfuge for detection of any other criminal activity.
The roadblock was established at a construction area where the speed limit had been reduced and was conducted at a time when the traffic was light. The presence of the officers at the area did not create a traffic hazard or unduly interfere with legitimate traffic. The identity of the officers and the presence of their vehicles were obvious due to the identifying vests worn by the officers and the flashing blue lights. The motorists were only stopped briefly and this was a checkpoint stop rather than a roving patrol. Thus, the level of intrusion was slight. See Sitz, 496 at 452-453.
The officers did not make random stops using unbridled discretion but stopped vehicles based on an established procedure that was followed during the roadblock. The roadblock was authorized by the supervisor in charge at the time. Lieutenant Lewis stated that the roadblock was set up as a safety check point and not specifically for the detection of intoxicated drivers. Nevertheless, safety necessarily involves motorists who are not driving while intoxicated. The officers were veterans who were trained as part of the police program in handling driving violations. The data reveals that eighteen drivers’ licenses were checked and one arrest was made. This percentage is sufficient to show the checkpoint’s effectiveness. See id. at 455. Furthermore, after the appellant stopped and Officer Bell detected signs of intoxication, the officers had authority under Arkansas Rule of Criminal Procedure 3.1 to further detain the appellant.
Another of the appellant’s arguments is that the officers illegally detained the drivers and their passengers in an effort to run warrant checks on them. However, the officers testified that the radio dispatcher automatically checked for outstanding warrants when they called in the driver’s license numbers so it was not in fact a further detention in order to run warrant checks. Moreover, the rights secured by the Fourth Amendment are personal in nature, and the appellant does not have standing to challenge the seizure on the behalf of any passengers that may have been involved. See Jones v. State, 45 Ark. App. 28, 871 S.W.2d 403 (1994).
Thus, under these circumstances, we conclude that the roadblock was not conducted in a manner inconsistent with the appellant’s Fourth Amendment rights or that the limited intrusion on those rights, to the extent that the intrusion advanced the public interest, outweighed the promotion of society’s legitimate interest. Therefore, we find that the trial court did not err in denying the appellant’s motion to suppress.
Affirmed.
Pittman and Rogers, JJ., agree. | [
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Melvin Mayfield, Judge.
The Second Injury Fund has appealed a decision of the Worker’s Compensation Commission which held it Hable for all of appellee-claimant’s benefits above a nine percent impairment rating to the body as a whole. Appellant argues that the Commission’s finding that the second and third requirements which trigger Second Injury Fund liability were met is not supported by substantial evidence.
The claimant Floyd Darter contended he was permanendy and totally disabled. At the time of the hearing he was fifty-six years old, had a fifth-grade education, and had been given training in the mifitary equivalent to an eighth-grade education but said he couldn’t spell very well, although he could read “some.” Mr. Darter had worked for James River Corporation for almost seventeen years, when, on July 27, 1991, an eighty-pound hoist fell several feet and hit him on the head, left shoulder, and arm. He was off work for four days, treated conservatively, and went back to work. However, because of recurring pain, on July 29, 1992, surgery was performed on his shoulder by Dr. Steven Heim. Mr. Darter was off work for eight or nine weeks, then released to return to work with a permanent physical impairment rating of nine percent to the body as a whole, and a twenty-five pound weight restriction. Darter continued to work until June 10, 1993, when he quit and has not worked since.
While working for appellee James River, Darter had also sustained work-related injuries to his shoulder and neck in 1989 and had surgery for bilateral carpal tunnel syndrome. In addition, he had numerous non-work-related physical problems. While in the Army in 1959 Darter injured his lower back lifting a pot of potatoes, and he has had back problems which have continued to worsen ever since. He has been diagnosed with chronic obstructive pulmonary disease and degenerative disc disease in the cervical and lumbar spine. He also has severe hypertension that is difficult to control, tendinitis of the left shoulder, peripheral vascular disease with vascular insufficiency to the right leg which causes numbness and makes it difficult for him to stand or walk, and shortness of breath as a result of over forty years of smoking two packs of cigarettes a day.
Dr. L.R. Darden stated that Darter was totally disabled, and the administrative law judge agreed. The law judge also held that the appellee employer was only responsible for Darter’s nine percent physical impairment and that the Second Injury Fund was liable for the remainder of his disability. The Commission affirmed and adopted the opinion of the administrative law judge, and it is this decision that has been appealed.
In Mid-State Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988), the Arkansas Supreme Court set out the requirements for Second Injury Fund liability:
It is clear that liability of the Fund comes into question only after three hurdles have been overcome. First, the employee must have suffered a compensable injury at his present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compensable injury to produce the current disability status.
295 Ark at 5, 746 S.W.2d at 540. It is clear that the first hurdle was satisfied by the July 1991 injury. But the appellant Second Injury Fund argues that there is not sufficient evidence to support the Commission’s finding that hurdles two and three have been met.
We have consistently said that the findings of the Commission must be upheld unless there is no substantial evidence to support them and that we will reverse only if we are convinced that fair-minded persons with the same facts before them could not have reached the same conclusion arrived at by the Commission. Price v. Little Rock Packaging Co., 42 Ark. App. 238, 856 S.W.2d 317 (1993). And in the very recent case of Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158 (1996), the Arkansas Supreme Court, citing a previous case of that court, said that “substantial evidence exists if reasonable minds could have reached the same conclusion” as that reached by the Commission and that reversal is proper only if “fair-minded persons considering the same facts could not have reached the same conclusion.” Therefore, we examine the Commission’s findings in the instant case in keeping with the standards set out in the above cases.
As to the second hurdle set out in the Mid-State Construction case, the Commission found that Darter had high blood pressure, back problems, chronic obstructive pulmonary disease, shoul der problems, bilateral carpal tunnel syndrome, and vascular problems. Appellant contends, however, that these conditions do not meet the requirements of the second hurdle under Mid-State because they were either latent, arose after the date of injury, were injuries sustained while in the employment of James River, or were not substantial enough to constitute a disability or impairment. We agree.
Arkansas Code Annotated § 11-9-525(a) (3) (1987) provides:
It is intended that latent conditions which are not known to the employee or employer not be considered previous disabilities or impairments which would give rise to a claim against the Second Injury Fund.
In the case of Purolator Courier v. Chancey, 40 Ark. App. 1, 841 S.W.2d 159 (1992), we reviewed cases by both this court and our supreme court which had held that “latent” means that which is present without showing itself; hidden, concealed, or dormant. And we said that under the above statute: “An injury is latent until its substantial character becomes known or until the employee knows or should be reasonably expected to be aware of the full extent and nature of his injury.” 40 Ark. App. 6-7, 841 S.W.2d at 162.
The evidence in this case clearly shows that Darter’s chronic obstructive pulmonary disease (COPD) was not discovered until December 18, 1992, when a chest x-ray was made. This was more than a year after his July 1991 injury. The x-ray report states that no old films are available, but there is “apparent hyperinflation of the lungs suggesting COPD.” However, a lung biopsy was done on August 4, 1989, which revealed only a benign mass, and Darter was returned to work with no restrictions. Dr. Darden’s progress notes made in 1990 state that Darter is “a little short of breath and he coughs and his throat is irritated and his head feels stopped up.” However, the report also states that “his lungs don’t sound stopped up.” Although the doctor advised Darter to stop smoking, Dr. Larry Travis noted on June 24, 1991, that Darter was still smoking. Dr. Travis also found that Darter had gastritis and duodenitis but that there was “no evidence of ulceration” and that “the esophagus is normal.” The doctor also wrote on his progress record “no significant abnormalities noted other than he is very agitated and nervous.” And he gave Darter a prescription for Tagamet with one refill.
We do not believe there is substantial evidence to support a finding that the “substantial character” or the “full extent and nature” of Darter’s pulmonary disease was known when he was injured in July of 1991. Therefore, under the law his condition was latent at that time and it cannot qualify as a prior disability or impairment which would trigger Second Injury Fund liability in this case.
Also, Darter’s vascular problems were not diagnosed or treated until after his injury in July of 1991. It was not until July 19, 1993, that Dr. Rowland P. Vernon of the Holt Krock Clinic reported:
[Darter] had a peripheral vascular lab exam which suggests that he has bilateral femoral popliteal segment disease, worse on the right than the left by pulse wave form studies. And he has as well abnormal femoral pulse wave forms.
On exam, the patient has no femoral pulses to speak of. He has no pedal pulses. He has bruits all over his abdomen. He has been recently unable to work for some time.
It would be my impression that he needs to stop smoking and that he might reasonably be offered arteriography and possible aortoiliac bypass. He is indeed functionally impotent at this point and has been for some time. . . .
There is no evidence that Darter or his employer knew of this condition until after the 1991 injury. Darter stopped working on June 10, 1993. He was referred to Dr. Michael Standefer who examined him on June 29, 1993. Dr. Standefer’s record of that examination made no mention of a vascular problem or complaint. However, Dr. Standefer referred Darter to Dr. James S. Deneke and his report of September 28, 1993, states that Darter said his hips hurt “with walking even a block.” Dr. Deneke also reported that Darter had a history of “vascular insufficiency to the right leg.” This evidence falls short of showing that Darter was aware — or should have been — of the substantial character or the full extent and nature of his vascular problem until it was diagnosed by Dr. Vernon in July of 1993.
The employer, James River Corporation, argues that Dr. Larry Travis noted in his record of June 24, 1991, that Darter had peripheral neuropathy in his feet. But, as we have pointed out, that record also stated that Darter had “no significant abnormalities” other than he was “agitated and nervous.” The notation on the record made by Dr. Travis indicates that his finding as to Darter’s feet was based on “swelling.” Obviously this could result from working all day while standing on his feet, or from some other cause, and does not show that Darter knew or should reasonably be expected to aware of the substantial character or full extent and nature of the vascular problem that was found in 1993. Thus, we think that the substantial evidence shows this was a latent condition.
Also, the Second Injury Fund is not liable for injuries sustained during the employment by one employer. Riceland Foods, Inc. v. Second Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986); McCarver v. Second Injury Fund, 289 Ark. 509, 715 S.W.2d 429 (1986); Ark. Code Ann. § 11-9-525(a)(1) (1987). Darter’s 1987 shoulder injury, which was surgically repaired in 1992; his bilateral carpal tunnel syndrome, which was surgically corrected in 1991; and his right shoulder and arm tendinitis were all sustained while Darter was working for James River Corporation, and even though Darter said these conditions became worse after the hoist fell on him in July of 1991 they cannot support Second Injury Fund liability. See Chamberlain Group v. Rios, 45 Ark. App. 145, 871 S.W.2d 595 (1994).
Darter’s back condition and his high blood pressure were not sustained during Darter’s employment with James River or discovered after the 1991 injury; however, in Mid-State Construction, supra, the court said:
It is the substantial nature of the impairment which is emphasized, and the elements of compensability, none of which may have existed as to the particular claimant, merely assist the fact finder in his determination as to whether the former condition was sufficient in degree to constitute an impairment qualifying the claimant as one of the “handicapped” for whose benefits the statute was enacted.
295 Ark. at 6, 746 S.W.2d at 540 (emphasis added).
Although we view the evidence in the light most favorable to the decision of the Commission, that standard neither insulates the Commission from judicial review nor renders our function in these cases meaningless, and we will reverse the Commission when we are convinced that fair-minded persons with the same facts before them could not have reached the same conclusion arrived at by the Commission. Morgan v. Desha County Tax Assessor’s Office, 45 Ark. 95, 871 S.W.2d 429 (1994). When the “substantial nature” of Darter’s overall physical condition is considered, we do not think there is substantial evidence to support a finding that he was “handicapped” prior to his 1991 injury. There is evidence that at the time of his 1991 injury Darter was accustomed to working up to twelve hours per day and usually more than forty hours per week; he had no medical restrictions; and he consistently took physically strenuous jobs.
The appellant also contends that the third hurdle of Mid-State Construction has not been met in this case, i.e., that there is no substantial evidence to support the Commission’s finding that Darter’s pre-existing conditions and his 1991 injury combined to cause his current disability status. Again we agree. We note that Darter testified that he purposely took more physically demanding jobs because they paid more and did not normally include any paper work. Darter also testified that before his 1991 injury he worked long hours, sometimes as long as twelve to sixteen hours per day, and sometimes seven days per week. The safety coordinator for James River confirmed that Darter always did his job prior to his 1991 injury. Moreover, the coordinator testified that he had observed Darter working on the job for a number of years, and he never had to modify a job so that Darter could do it. We said in Arkansas Highway and Transportation Department v. McWilliams, 41 Ark. App. 1, 6, 846 S.W.2d 670, 673-74 (1993), that in considering whether an employee’s prior impairment combined with his last work-related injury to produce his current disability status, it was proper to consider his physical ability to work before his work-related injury. We think it also important that even after his 1991 injury, Darter continued to work for almost two years, before he quit. And it is not disputed that he was totally and permanently disabled after he quit.
Under the evidence in this case, we think fair-minded persons would find that Darter’s current disability arises from a combination of his latent conditions, his prior injuries sustained while working for James River, and his 1991 injury. In this connection we quote the following from the reply brief of the Second Injury Fund:
The Appellee/Claimant in its brief makes a puzzling argument. Claimant’s argument concerns the statement in the Fund’s brief that he worked 12-16 hour days prior to his injury. Claimant states that this is not a meritorious argument by the Fund, as he is not required to show that any prior conditions caused any loss of earning capacity. The puzzling part of this is that the Fund has never argued that Claimant needed to show a loss of earning capacity, nor does its brief even contain the words “earning capacity.”
The Fund’s argument is that the Appellee/Claimant, at the time of his injury, was capable of working long hours at heavy labor. As such, he was not one of the “handicapped” for whose benefit the statute was enacted. . . . Neither of the Appellees direcdy address this position.
We find that the Commission’s decision is not supported by substantial evidence; therefore, the Second Injury Fund is not liable for any compensation to which the employee Darter is entided.
Reversed and remanded.
Jennings, C.J., and Neal, J., agree. | [
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MELVIN Mayfield, Judge.
This is an appeal from an order of the Pulaski County Circuit Court which held that the appellant, Wal-Mart Stores, Inc., is “collaterally estopped from recovering any sums under the ‘tail coverage’ from the Arkansas Property and Casualty Insurance Guaranty Fund (Fund) and is bound by the Eighth Circuit’s opinion.” The appellee is the Administrator of the Fund and is also Ancillary Receiver of Transit Casualty Company.
In 1982, Wal-Mart, a self-insured employer, sought proposals for its workers’ compensation insurance. Carlos Miro, who was authorized to issue and place insurance on behalf of Transit Casualty Company (which is now insolvent), offered to provide workers’ compensation insurance coverage for all Wal-Mart employees for a flat and guaranteed premium of $3,500,000, which would not be increased regardless of losses. In addition to the workers’ compensation insurance coverage, “tail coverage” (retroactive coverage for Wal-Mart’s liability with respect to the period of time during which Wal-Mart was self-insured and which time period had already passed when coverage was purchased) would be provided for a guaranteed premium of $2,852,000. Wal-Mart accepted Miro’s offer. When Transit issued the policy, it contained a provision for computation of premium in accordance with the standard manual rates which are on file with the appropriate state regulatory agencies and which are multiplied by the estimated payroll to reach the premium. The policy premium was $3,500,000 as agreed, but to reach the premium guarantee, Wal-Mart’s payroll, reported to Transit as $547,000,000, was reduced on the face of the policy to $250,000,000.
Policy claims were far beyond expectations, and in January 1985, Transit requested an additional premium of $13,000,000. Wal-Mart filed a declaratory judgment action in an Arkansas federal district court seeking to enforce the policy as written. Transit answered and filed a counterclaim seeking to recover additional premiums in the amount of approximately $20,000,000. During the pendency of the action, a Missouri court entered an order of insolvency against Transit and appointed a receiver.
In an opinion dated July 6, 1987, the federal district court held, among other things, that the agreement under which Wal-Mart would pay a flat rate for workers’ compensation insurance was void and unenforceable. The district court refused to apply the doctrine of in pari delicto and “leave the parties where it found them” and held that Wal-Mart was liable for the sum of $16,772,144 in additional premiums for the coverage. The district court could find no basis, however, to hold that the “tail coverage” was not in compliance with the law and held that the “tail coverage” was fully enforceable according to its terms. Wal-Mart Stores, Inc. v. Crist, 664 F. Supp. 1242 (W.D. Ark. 1987).
Wal-Mart appealed to the Eighth Circuit Court of Appeals, and in an opinion dated December 26, 1988, the court of appeals agreed that the agreement was illegal and violated state law. The Eighth Circuit, however, applied the doctrine of in pari delicto and held that the district court should have denied relief on both Wal-Mart’s action for declaratory judgment and Transit’s counterclaim for payment of premiums. The Eighth Circuit reversed the decision of the district court with respect to Transit’s counterclaim and remanded to the district court with directions to dismiss the case without relief to either party. The opinion was silent as to the “tail coverage” except for a footnote in which the court stated that the portion of the district court’s decision holding that the “tail coverage” was a fully enforceable agreement binding on both parties was not challenged on appeal, and “we shall not discuss it further.” Wal-Mart Stores, Inc. v. Crist, 855 F.2d 1326 (8th Cir. 1988).
On August 19, 1991, the appellee filed a “Motion for Order Denying Claim of Wal-Mart Stores, Inc.” (No. 85-011593) in Pulaski County Circuit Court. The appellee stated that in January and February 1986 Wal-Mart made a demand for indemnification and loss adjustment expenses from the Arkansas Property and Casualty Insurance Guaranty Fund for claims arising under the Transit policies; that the appellee refused to honor the demands because the validity of the “tail coverage” was the subject of litigation in federal district court; that the “tail coverage” was ultimately declared to be part of an illegal agreement by the Eighth Circuit; that Wal-Mart failed to seek review of the Eighth Circuit decision; and that Wal-Mart is barred by res judicata and collateral estoppel from relitigat-ing the legality of the insurance contracts between it and Transit. The appellee stated that Wal-Mart had made a claim against the Fund for the “tail coverage” in the amount of $445,516.40. The appellee asserted that the Fund is responsible only for the payment of “covered claims” as defined by Ark. Code Ann. § 23-90-103(2); and that because, under the Eighth Circuit opinion, there is no valid policy of insurance, there are no “covered claims.” The appel-lee asked for an order denying Wal-Mart’s claim.
On August 21, 1991, the appellee filed a “Complaint and Motion to Transfer and Consolidate Actions” in Pulaski County Circuit Court (No. 91-4836). In the complaint, the appellee stated that, under the mistaken belief that Transit had insured Wal-Mart with valid and legally enforceable policies of insurance, the Commissioner had paid $221,702.02 to claimants and as claims adjusting expense until August 25, 1988, and an additional $31,031.03 since that date. The appellee stated that the Eighth Circuit had found the agreement illegal and asked for a monetary judgment in the amount of $252,733.05 together with prejudgment interest as allowed by law and attorney fees. The appellee also asked that case No. 91-4836 be transferred to Pulaski County Circuit Court, 7th Division, and that an order be entered consolidating case No. 91-4836 with case No. 85-011593.
On October 21, 1991, Wal-Mart filed a “Motion for Partial Summary Judgment” in both cases. Wal-Mart alleged it was entitled to partial summary judgment in No. 85-011593 because the federal district court held the “tail coverage” was properly issued and that policy enforceable according to its terms; that decision was not appealed to the Eighth Circuit; and the Eighth Circuit did not decide that issue.
On October 28, 1991, cases No. 91-4836 and 85-011593 were transferred to Pulaski County Circuit Court, 2nd Division, and the cases were consolidated.
On June 9, 1993, the appellee filed a motion for summary judgment in connection with the workers’ compensation insurance claims in case No. 91-4836, and on November 8, 1993, the circuit judge entered an order granting appellee’s motion for summary judgment in No. 91-4836. No appeal was taken from that order and we shall not consider it further.
On June 19, 1994, the circuit judge entered an order in No. 85-011593 granting the appellee’s “Motion for Order Denying Claim of Wal-Mart Stores, Inc.” in regard to the “tail coverage”. The circuit judge held that the Eighth Circuit found that Transit and the appellant were parties to an illegal agreement; that the “tail coverage” was part of that agreement; and that the Eighth Circuit dismissed the case, including the “tail coverage”, without relief to any party. The circuit judge held, therefore, that Wal-Mart is collaterally estopped from recovering any sums under the “tail coverage” and is bound by the Eighth Circuit’s opinion.
Appellant argues on appeal that the trial court erred in holding that, because of the Eighth Circuit’s opinion, it was collaterally estopped from recovering any sums from the Fund. Appellant contends that the Eighth Circuit opinion dealt solely with Transit’s counterclaim for additional workers’ compensation insurance premiums and had nothing to do with the “tail coverage.”
The doctrine of collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated by the parties in the first suit. Scallion v. Whiteaker, 44 Ark. App. 124, 868 S.W.2d 89 (1993). In the instant case, the issue of “tail coverage” was decided by the federal district court which held that the “tail coverage” was fully enforceable according to its terms. Wal-Mart Stores, Inc. v. Crist, 664 F. Supp. 1242 (W.D.Ark. 1987). Although an appeal was taken in that case, the finding with regard to “tail coverage” was not appealed from. Indeed, in Wal-Mart Stores, Inc. v. Crist, 855 F.2d 1326 (8th Cir. 1988), the Eighth Circuit stated that the district court’s decision regarding “tail coverage” was not challenged on appeal and “we shall not discuss it further.” Therefore, the decision of the federal district court was final on this issue and the trial court erred in holding that appellant was collaterally estopped by the Eighth Circuit’s opinion.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Cooper, Stroud, Neal, and Griffen, JJ., agree.
Jennings, C.J., dissents. | [
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John F. Stroud, Jr., Judge.
James Phillips was charged with possession of a controlled substance, methamphetamine. After a pretrial motion to suppress evidence was denied, Phillips entered a conditional plea of guilty under Ark. R. Crim. P. 24.3(b). He was sentenced to three years’ imprisonment with eighteen months suspended.
Phillip Hydron, a White County Deputy Sheriff, testified at the suppression hearing. He stated that on November 25, 1993, he was on patrol near Higginson when he saw a van stopped in the middle of the road. He said that the van appeared to have a problem, so he stopped to investigate. When appellant rolled down the driver’s side window, Officer Hydron smelled marijuana.
Officer Hydron asked appellant for his driver’s license, and appellant began flipping through his billfold to retrieve it. Hydron said that he saw a plastic package rolled up in appellant’s wallet. When asked what was in the package, appellant shrugged his shoulders. Then the officer asked about the smell of marijuana and appellant said that he and his buddy had smoked some earlier that day. Officer Hydron asked for the plastic package, and appellant gave it to him. There was what appeared to be marijuana inside the package. Hydron read appellant his Miranda rights and arrested him for possession of a controlled substance.
After he placed appellant in the patrol car, Officer Hydron conducted a search of the van. In a jacket, he found a pipe used for smoking marijuana. In another jacket, he found a syringe, a spoon, some cotton, and a white plastic package filled with white powder.
At the detention center, appellant was again advised of his rights. Appellant then gave a statement in which he admitted that the marijuana and the drug paraphernalia were his. He also admitted that the white powder was his and that it was methamphetamine.
Appellant argues that the trial court erred in refusing to grant his motion to suppress the evidence discovered by the officer because he had not been lawfully detained or arrested prior to the discovery of the marijuana in his wallet. He also argues that the evidence should have been suppressed because the searches of both his wallet and his van were unlawful.
In reviewing a trial court’s denial of a motion to suppress evidence, we make an independent determination based on the totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Roark v. State, 46 Ark. App. 49, 876 S.W.2d 596 (1994); Bond v. State, 45 Ark. App. 177, 873 S.W.2d 569 (1994).
We first address appellant’s contention that he was illegally detained by Officer Hydron. Appellant argues that Ark. Code Ann. § 16-81-204(a) (1987), Ark. R. Crim. P. 3.1, and the Fourth Amendment require that an officer must reasonably suspect that a person is committing, has committed, or is about to commit a crime before he can detain that person. However, not all personal intercourse between policemen and citizens involves “seizures” of persons under the fourth amendment. Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990). Likewise, not all personal intercourse between policemen and citizens involves a detention under Ark. Code Ann. § 16-81-204(a) (1987) and Ark. R. Crim. P. 3.1. See Thompson, supra; Adams v. State, 26 Ark. App. 15, 758 S.W.2d 709 (1988); and Ark. R. Crim. P. 2.2(a).
Although Officer Hydron testified that he would have been suspicious if appellant had attempted to leave after Hydron stopped and walked toward appellant’s van and that he would still have wanted to question him, the officer’s subjective intention is not dispositive of whether there has been a seizure. Whether a person has been seized within the meaning of the Fourth Amendment depends on whether, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Smith v. State, 321 Ark. 580, 906 S.W.2d 302 (1995) (citing United States v. Mendenhall, 446 U.S. 544, reh’g denied, 448 U.S. 908 (1980)). We find this reasoning persuasive and hold that this is also the standard to determine whether a person has been detained under Ark. Code Ann. § 16-81-204(a) (1987) and Ark. R. Crim. P. 3.1.
The result in this case is controlled by the holding in Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990), in which the Arkansas Supreme Court found that it was not a seizure under the Fourth Amendment for a police officer to approach a car parked in a public place to determine whether there was anything wrong. Just as in Thompson, supra, there is no evidence in the record indicating that the officer restrained the liberty of the appellant by means of physical force or a show of authority. Thus, there was no “seizure” under the fourth amendment and no detention under Ark. Code Ann. § 16-81-204(a) (1987) and Ark. R. Crim. P. 3.1 until after the van window was rolled down and Officer Hydron smelled marijuana.
Once appellant had rolled down the window and Officer Hydron smelled marijuana, the officer had a reasonable suspicion that the occupants of the van were committing, had committed, or were about to commit a crime. This authorized the officer to detain them for a reasonable time under Ark. R. Crim. P. 3.1 in order to verify their identification or determine the lawfulness of their conduct. Adams, supra. Thus, appellant’s claim that he was illegally detained is without merit.
Appellant’s second contention is that the trial court should have suppressed the evidence because the officer did not articulate any of the factors contained in Ark. Code Ann. § 16-81-203 (1987) as a basis for his seizing and searching the cellophane which he had observed in appellant’s wallet. Ark. Code Ann. § 16-81-203 allows police officers to conduct a warrandess search of a person who has been detained if he reasonably suspects that the person is armed and presendy dangerous to the officer or others. Although it is true that Ark. Code Ann. § 16-81-203 would not justify a warrandess search in this case, the plain-view exception to the warrant requirement rendered the warrandess search lawful.
Under the plain-view doctrine, seized evidence is admissible when the initial intrusion was lawful, the discovery of the evidence was inadvertent, and the incriminating nature of the evidence was immediately apparent. Bond, supra. As previously discussed, Officer Hydron’s intrusion was lawful. He stated that he noticed the cellophane package rolled up in appellant’s wallet when appellant was flipping through it to find his driver’s license; therefore, the discovery was inadvertent. The incriminating nature of the package was immediately apparent in light of the fact that the officer smelled marijuana, the fact that appellant admitted to having smoked marijuana earlier in the day, and the fact that a suspicious packet was rolled up in appellant’s wallet. See Washington v. State, 42 Ark. App. 188, 856 S.W.2d 631 (1993). Therefore, the trial court did not err in failing to grant appellant’s motion to suppress the marijuana.
Appellant’s final contention is that the trial court erred in refusing to suppress the methamphetamines seized when Officer Hydron searched the van and to suppress the confession given by appellant after his arrest. Appellant contends that the officer’s warrantless search of the van violated his Fourth Amendment rights because the officer did not articulate any reason to suspect that the van contained items subject to seizure or that the van contained weapons. This argument fails because an officer, incident to a lawful custodial arrest of the occupants of a vehicle, may contemporane ously search the passenger compartment and any containers found within the passenger compartment of the vehicle. Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995); Miller v. State, 44 Ark. App. 112, 868 S.W.2d 510 (1993).
Affirmed.
Mayfield and Neal, JJ., agree. | [
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Per CURIAM.
Nadine Schramm has appealed from a judgment in favor of Horace Piazza in the amount of $4,500. The record in this case has been filed with the clerk of this court, and appellant filed a motion asking that we stay proceedings on the judgment and accept a supersedeas bond in the amount of $4,500. We cannot approve a bond that has not been tendered, nor can we issue a stay until we approve the bond.
A supersedeas bond must be sufficient in amount to guarantee that appellant shall pay appellee “all costs and damages that shall be affirmed against appellant on appeal; or if appellant fails to prosecute the appeal to a final conclusion, or if such appeal shall for any cause be dismissed, that appellant shall satisfy and perform the judgment, decree or order of the trial court.” Ark. R. App. P. 8(c). These costs and damages include interest on the judgment and all costs and damages for delay that may be adjudged against appellant on appeal or which may result from dismissal or affirmance of the decision appealed. Appellee has filed a response to appellant’s motion suggesting that $5,500 would be an adequate amount to post as bond to cover the judgment, interest, and costs. We agree.
Appellant should file a supersedeas bond in proper form binding appellant together with a certificate of deposit, certified check, cash, bank money order, or corporate surety in the amount of $5,500 with the clerk of this court and then request approval of the bond and an order staying proceedings on the judgment. | [
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WENDELL L. Griffen, Judge.
Shannon Allen appeals his conviction in the Garland County Circuit Court following a jury verdict of guilty on the charge of burglary, and contends that the trial court erred by refusing his requested and proffered jury instruction for the lesser-included offense of criminal trespass. We reverse and remand this case for a new trial, because we agree with appellant that a rational basis was established for charging the jury regarding the lesser-included offense.
Appellant was charged with burglary in connection with his entry into a residence in Hot Springs, and his eventual departure (accompanied by his ex-wife) with a Super Nintendo game that belonged to the resident of the house. The prosecution presented its proof during the morning session of the one-day trial. At the noon recess, the trial judge and counsel for the parties considered the jury instructions to be given, and appellant’s counsel requested that the jury be instructed regarding the lesser included offense of criminal trespass. Counsel informed the trial judge that he expected the appellant to testify that appellant accompanied his ex-wife into the residence with the permission of the inhabitant, and that appellant did not know that she had the article that was allegedly stolen. However, the trial court denied appellant’s requested instruction. During the afternoon session, appellant testified as his counsel had predicted. Appellant contends that his proffered testimony warranted the requested instruction. The State argues that appellant should have renewed his objection to the jury instruction after his case-in-chief ended, and that the trial court’s denial of the instruction was not improper because the ruling was made based on the testimony heard to that point (when the jury instructions were discussed at the end of the prosecution’s case-in-chief during the noon recess). The State also urges that we affirm based upon its objection to appellant’s supplemental abstract.
Arkansas Code Annotated § 5-1-110(c) (Repl. 1993) provides that the court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged' and convicting him of the included offense. It is well settled that criminal trespass is a lesser-included offense in the crime of burglary. Graves v. State, 264 Ark. 564, 572 S.W.2d 847 (1978). It is not error for a court to refuse or fail to instruct on a lesser-included offense where the evidence clearly shows only one of two possible results — the defendant is either guilty of the greater offense or is innocent. Brown v. State, 321 Ark. 413, 903 S.W.2d 160 (1995). But error occurs when the trial court refuses to give a lesser-included-offense instruction where there is even the slightest evidence to warrant it. State v. Jones, 321 Ark. 451, 903 S.W.2d 160 (1995). A defendant is entitled to a particular jury instruction if a timely request is made, the evidence supports the proffered instruction, and the instruction correctly states the law. U.S. v. Hood, 748 F.2d 439 (8th Cir. 1984).
Based upon these principles, we hold that it was error to refuse the lesser-included-offense instruction. Although there was no evidence to support the lesser-included-offense instruction at the time of the noon recess when the instructions were discussed, the trial court had been alerted by appellant’s counsel that such evidence was forthcoming. That prediction, standing alone, would not have warranted the instruction because it was not evidence. However, the trial judge would have been prudent to withhold a ruling on the lesser-included-offense instruction pending presentation of the defense case. Because the subsequent testimony by appellant supported the proffered instruction and correctly stated the law, the trial court should have reversed its earlier ruling denying the lesser-included-offense instruction and included it in the charge to the jury.
The State’s contention that appellant should have renewed his objection to the jury instructions after he presented his case appears to be based upon the view that an objection to jury instruction is in the same procedural realm as a motion for directed verdict. There is a clear line of precedent holding that the motion for directed verdict must be renewed at the close of all the evidence in order for a party to preserve its challenge to the sufficiency of the evidence for appellate review. See, e.g., Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994); Henry v. State, 309 Ark. 1, 928 S.W.2d 346 (1992). It is equally clear that objections to jury instructions must be made either before or at the time that instructions are given. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993). Appellant made a timely objection to the trial court’s refusal to include an instruction on the lesser-included offense during the noon recess when the instructions were discussed. His counsel proffered an instruction on that offense when the instructions were discussed, and before they were given to the jury. Those actions were sufficient to inform the trial court regarding the appellant’s objection to the instructions that were to be given.
Although appellant’s supplemental abstract is objectionable to the State, it does contain those material parts of the record necessary to understand the issue presented for our review. Newton v. Chambliss, 316 Ark. 334, 871 S.W.2d 587 (1994). The sole point on appeal is whether there was a rational basis for a conviction of criminal trespass. Appellant’s abstracted testimony clearly demonstrates that he claimed to have no intent to borrow or steal the Super Nintendo game. That testimony was enough to permit the issue presented for our review to be understood.
Reversed and remanded.
Jennings, C.J., Mayfield, and Neal, JJ„ agree.
Pittman and Rogers, JJ., dissent. | [
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Melvin Mayfield, Judge.
Appellants, Jean Madden, d/b/a Madden Law Firm, and Gordon Humphrey, appeal from an order granting summary judgment in favor of appellee, Continental Casualty Company.
The appellee issued a Lawyers Professional Liability Insurance Policy to the Madden Law Firm for the period September 19, 1993, to September 19, 1994, covering claims made against the insured during the term of the policy. The policy provided that:
I. COVERAGE AGREEMENTS
A. We will pay all amounts, to our limit of liability, which you become legally obligated to pay as a result of a wrongful act by you or by any entity for whom you are legally liable.
IV. DEFINITIONS
“Claim” means the receipt of a demand for money or services, naming you and alleging a wrongful act.
“Professional services” means services rendered in your capacity as a lawyer, real estate title insurance agent, or notary public. This also includes your acts as an administrator, conservator, executor, guardian, trustee, receiver, or in any other similar fiduciary activity.
“Wrongful act” means any negligent act, error or omission in:
A. the rendering of or failure to render, professional services; or ... .
The policy also contained exclusions for other business enterprises and for fraud.
On April 22, 1994, Pete and Sherry Frandsen filed a complaint against appellants alleging that Pete Frandsen applied for a loan to develop certain real estate with Hillcrest Mortgage Company, Inc., which is owned by Jean Madden. Instead of making the loan, Madden entered into a business venture with the Frandsens and instructed Gordon Humphrey, her employee, to prepare the necessary paperwork. According to the complaint, Madden and Humphrey agreed to perform all legal work necessary to carry on the real estate development as Huckleberry Woods, Inc.
The complaint alleged that Madden and Humphrey undertook legal representation of the Frandsens, and it listed fifteen separate acts alleged to constitute either legal malpractice or fraud. In regard to malpractice, the complaint alleged that appellants undertook legal representation of the Frandsens, and, at the same time, undertook .to represent them in a joint business venture; that appellants failed to advise the Frandsens of their rights as corporate stockholders; that appellants breached their fiduciary duty to the Frandsens; and that appellants breached their duties as attorneys by failing to perform work promised. In regard to fraud, the complaint alleged that Madden set about a course of action to force them into bankruptcy and take their real property; that Madden made false representations to induce the Frandsens to enter into a business agreement in order to steal their property; and that Madden failed to change an incorrect property description in a deed.
The appellee declined to defend the lawsuit, and on June 14, 1994, the appellants filed a complaint for declaratory judgment seeking a determination that the appellee was liable on its policy; that appellee pay damages that might be awarded to the appellants; that the appellee owed a duty to defend in the lawsuit; and that appellants recover costs and attorney’s fees.
Both parties moved for summary judgment. In its motion for summary judgment, the appellee asserted that there is no coverage under the policy because the activities in question were not services rendered by Madden in her capacity as a lawyer and, alternatively, that her actions fell within policy exclusions for fraud and for actions taken in connection with another business enterprise. The appellee asserted that it had no duty to defend or indemnify appellants under the policy. The appellants’ motion for summary judgment asserted there were no genuine issues of material fact and that summary judgment should be entered in their favor as a matter of law.
On November 30, 1994, the trial court granted appellee’s motion for summary judgment on the basis that the actions alleged in the complaint did not constitute the performance of professional services of an attorney, and no attorney/client relationship was formed between either of the appellants and the Frandsens. The court stated that the fact that the complaint used the words “legal malpractice” is not determinative, and that neither coverage nor a duty to defend was triggered under the policy. ^
The court also found that, even if an attorney/client relationship existed, the allegations of fraud could not trigger coverage because of a policy exclusion. The court made no finding on. the applicability of the “business enterprise” exclusions.
The appellants argue that the trial court erred in granting summary judgment to the appellee because the complaint alleges sufficient acts of a legal nature to constitute coverage under the policy.
We first note that the declaratory judgment in this case was entered as a result of the court’s granting appellee’s motion for summary judgment. Summary judgment is authorized by Ark. R. Civ. P. 56(c) when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact.” Summary judgment is an extreme remedy and should be granted only when a review of the pleadings, depositions, and other filings reveal there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Baxley v. Colonial Insurance Co., 31 Ark. App. 235, 792 S.W.2d 355 (1990). In considering a motion for summary judgment the court views the facts in the light most favorable to the party against whom the judgment is sought; all inferences are drawn against the moving party; and when reasonable minds might differ as to conclusions to be drawn from the facts disclosed, a summary judgment is not proper. Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990).
The general rule is that the pleadings against the insured determine the insured’s duty to defend. Baxley v. Colonial Insurance Co., supra. The duty to defend is broader than the duty to pay damages and the duty to defend arises where there is a possibility that the injury or damage may fall within the policy coverage. Commercial Union Insurance Co. of America v. Henshall, 262 Ark. 117, 553 S.W.2d 274 (1977). The insurer must defend the case if there is any possibility that the injury or damage may fall within the policy coverage. Home Indemnity Co. v. City of Marianna, 291 Ark. 610, 111 S.W.2d 375 (1987). It is the allegations made against the insured, however groundless, false, or fraudulent such allegations may be, that determine the duty of the insurer to defend the litigation against its insured. Equity Mutual Insurance Co. v. Southern Ice Co., 232 Ark. 41, 334 S.W.2d 688 (1960).
Here, the appellee issued a Lawyers Professional Liability Insurance Policy to the Madden Law Firm for the period September 19, 1993, to September 19, 1994, covering claims made against the insured during the term of the policy. On April 22, 1994, a complaint was filed against the Madden Law Firm. The complaint alleged that the appellants undertook legal representation of the Frandsens and committed malpractice; that they had a fiduciary duty to the Frandsens due to the attorney/client relationship; that they breached their duties as attorneys by failing to perform work that they had promised to do; that they failed to properly describe real estate; and that they failed to advise the Frandsens of their rights as stockholders.
Therefore, based upon the filing of a complaint against the appellants during the policy term and upon the allegations of the complaint, we think the trial court erred in holding the appellee had no duty to defend appellants and in granting summary judgment for the appellee.
However, we cannot grant appellants’ request that we remand for entry of a summary judgment in their favor.
While the insured is entitled to a defense if there is any possibility that the injury may fall within the policy limits based upon the allegations of the complaint however groundless or false those allegations may be, Home Indemnity Co., and Equity Mutual Insurance Co., supra, whether the insurer has a duty to pay depends upon whether coverage actually extends to the facts established at trial. See Commercial Union Insurance Co., supra; American Home Assurance Co. v. Ingeneri, 479 A.2d 897 (Me. 1984). See also 7C John A. Appleman, Insurance Law and Practice, § 4684 at 83-84 (Berdal ed. 1979).
At this point in this case, we cannot determine whether appel-lee has a duty to pay. There are questions of fact as to whether the appellants’ actions are actions relating to the practice of law; whether an attorney/client relationship was established; and whether appellants’ actions fell within the policy exclusions.
There are situations in which declaratory judgment may be granted as to the duty to defend. See Travelers Indemnity Company v. Olive’s Sporting Goods, Inc., 297 Ark. 516, 764 S.W.2d 596 (1989), (declaratory judgment proceeding to determine the amount of coverage under the terms of a policy of insurance); American Policyholders’ Insurance Co. v. Cumberland Cold Storage Co., 373 A.2d 247 (Me. 1977) (declaratory judgment may be entered simultaneously as to both the duty to defend and the duty to pay when the case is based on such issues as nonpayment of a premium, cancellation of a policy, failure to cooperate, or lack of timely notice).
Here, however, because there are genuine issues of fact to be determined, a declaratory judgment based upon a motion for summary judgment was not proper.
Reversed and remanded for further proceedings consistent with this opinion.
Pittman and Griffen, JJ., agree. | [
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John E. Jennings, Chief Judge.
On November 25, 1992, Michael Perry was found shot to death in a park near his home in Marianna. Appellant, Rodney Lanes, was subsequently charged with capital murder in connection with Perry’s death. Lanes was found guilty by a Lee County jury of the lesser-included offense of second-degree murder and was sentenced to a term of twenty years imprisonment.
On appeal Lanes contends that the judgment of the trial court should be reversed because (1) the evidence is insufficient to support the conviction, (2) the court erred in refusing to suppress his statement given to police officers, (3) the court erred in admitting hearsay evidence, and (4) the attorney fee awarded by the trial court was so inadequate as to constitute an abuse of discretion. We find sufficient merit in appellant’s third and fourth points to require reversal.
When reversal is sought both on the grounds of the insufficiency of the evidence and for other errors that may have occurred at trial, we may not reverse and remand for “trial error” without first having considered the sufficiency of the evidence. Burks v. United States, 437 U.S. 1 (1978); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). This rule is based upon the Double Jeopardy Clause. Harris v. State, supra.
Evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or another. Kirkpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995). On appeal we view the evidence in a light most favorable to the State and look only to that evidence which supports the verdict. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). In determining the sufficiency of the evidence we consider all of the evidence, including that which was erroneously admitted. Burkett v. State, 40 Ark. App. 150, 842 S.W.2d 857 (1992).
At trial, James Sexton, an officer with the Marianna Police Department, testified that he investigated the Michael Perry murder scene on November 25, 1992. No one at the scene had seen anything. When the EMTs rolled the body over they found what appeared to be “crack.” Officer Sexton testified that Mr. Perry’s billfold was not found.
A statement given by appellant to police officers in April 1993 was admitted into evidence:
Fred and I went to Michael Perry’s shop and Fred talked to Michael. They went into Michael’s office and talked there. Fred came out and we left. It was after 10 p.m. when we left. We went up to the liquor store (Spirit of 75). On the way to the liquor store Fred said if GunTee don’t want to get it, do you want to get Mike. That’s Michael Perry. I told him nope because Michael and I grew up together. I told him if I wanted some dope, all I had to do was ask Michael and then not pay him because Michael would not do anything. We went to my sister’s house (Sharon Lanes) and I used the telephone. We left there and went by GunTee’s house. He wasn’t there so we went to the park and Fred parked the car next to the fence. We were facing Michael Perry’s mother’s house (Marine’s Street). Fred, got out of the car and met Michael halfway, then when they walked up to the car where I was sitting in the passenger seat. Michael handed me a one-half ounce rock. I looked at the rock and gave it back to Michael. Then he asked me was it straight, and I said yeah, and then he gave it back to me. He and Fred was talking and Michael told Fred how much he wanted for it. Fred said pay him Rodney and I patted my pockets and said with what and Fred said you ain’t got no money on you and then pulled a black pistol from his coat pocket and shot Michael. Michael put both hands up to his face and said please man don’t shoot me and was backing up toward the fence and Fred shot about three more times. Then Fred ran and got in the car and drove away towards Claybrook Court. I said you should not have did that. He just said fuck it. Fred turned around in the street and went back to see if Michael was dead and we couldn’t find him. We went to Walnut Grove Church and picked up Jerome and Chris and went to Forrest City. On the way to Forrest City just before you get to Haynes, Fred threw that pistol out the window. He threw it over the car into the field on my side of the car. We went to Jevena’s house at Forrest City and Fred and Chris dropped Jerome and me off and they [went] back to Marianna.
J.C. Aikens Jr. testified that on the night Michael Perry was killed he saw appellant and Fred Westbrook. They each had pistols, Westbrook a .38 and appellant a .22. Aikens testified, “I heard them say they were going to rob somebody, you know, take their money or something like. They mentioned Gun-T and Elias Hill and Michael Perry.”
Jerry Vest, an employee of the Arkansas Highway Department, testified that in January 1993, he found a .38 revolver in a ditch near Haynes and Forrest City. Ronald Andrejack, a firearms examiner for the Arkansas Crime Laboratory, testified that the bullet he received from the Marianna Police Department was fired from this same .38 revolver. Edna Malone, Michael Perry’s mother, testified that between 10:00 and 10:30 on the night in question Perry was counting out a “ball of money.” Soon after he went outside she heard three gunshots. At the hospital, she was given Michael Perry’s billfold and there was no money in it.
Kevin Caffey testified that on November 25, 1992, he saw Fred Westbrook and the appellant drive up together to Michael Perry’s pool hall. He testified that Westbrook went over and talked to Perry. Johnny Woodson, also known as “Gun-T,” testified that on November 25 Westbrook and appellant came to his house and Westbrook tried to sell him some drugs. He testified that he heard Westbrook ask appellant if he wanted a gun.
Dr. William Sturner, the state medical examiner, testified that he performed an autopsy on Michael Perry and that Perry died as a result of a single gunshot wound, which passed through his face, neck, and chest.
James Robinson, Michael Perry’s cousin, testified that he saw Westbrook and appellant in Little Rock the day after Perry was killed. He talked with appellant, who told him that Westbrook had shot Michael Perry. Over appellant’s objection, Robinson was also permitted to testify that Westbrook told him that appellant shot Perry. This evidence was admitted to show that Westbrook and appellant were each “pointing the finger at each other.” The court instructed the jury not to consider the statement for the truth of the matter asserted but did not further explain its relevance.
We hold that the evidence was legally sufficient to support appellant’s conviction of second-degree murder. On this lesser-included offense, the trial court correctly instructed the jury that the State had the burden of proving that appellant knowingly caused the death of Michael Perry under circumstances manifesting extreme indifference to the value of human life. See Ark. Code Ann. § 5-10-103 (Repl. 1993). The jury was also instructed on accomplice liability. As the State points out, factors relevant to determining whether a person is an accomplice include the presence of the accused near the crime, the accused’s opportunity to commit the crime, and association with a person involved in the crime in a manner suggestive of joint participation. See Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994).
Appellant next argues that the trial court erred in declining to suppress the statement he made while in custody. Appellant states that the original information was filed on March 9, 1993, charging him with the murder of Michael Perry. The State notes that although the original information is not contained in the record on appeal, appellant was charged sometime before April 2, 1993, because on that date, even though he had not yet been arrested, an attorney was appointed to represent him.
Appellant was arrested on April 28, 1993, and his first appearance was set for April 30. On April 29 he was interviewed in the Phillips County jail by Sergeant James Sexton of the Marianna Police Department and Investigator Barry Roy of the Arkansas State Police.
At the pretrial Denno hearing both officers testified that appellant’s statement was voluntarily given. Appellant signed a waiver of rights, acknowledging that he had the right to counsel and that he expressly waived that right. Indeed, no contention is made that the rights waiver was inadequate in form or content.
Investigator Roy conducted the interview, which lasted between one and two hours. After appellant first made a statement denying any involvement, Roy told appellant that it would be in his best interest to tell the truth. At this point appellant gave the statement that was subsequently admitted at trial.
Both officers testified that they were unaware that counsel had previously been appointed for appellant. Joe Perry, the private attorney appointed pursuant to the April 2 docket entry, testified that he had not talked to appellant before the April 29 interview. It is evident that appellant himself was unaware that an attorney had been appointed to represent him.
Custodial statements are presumed involuntary, and the State had the burden of proving otherwise. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). The State must therefore make a prima facie showing that the accused knowingly, voluntarily, and intelligently waived his right to remain silent. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). In reviewing the trial court’s denial of the motion to suppress, we make an independent determination based on the totality of the circumstances and reverse the trial court only if the decision was clearly against a preponderance of the evidence. Dickerson v. State, 51 Ark. App. 64, 909 S.W.2d 653 (1995). The credibility of the witnesses who testified to the circumstances surrounding appellant’s custodial statement is for the trial court to determine. See Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). Within the context of an independent review, our search focuses on whether the accused wished to remain silent, and gave such expression to that desire that any statements made thereafter in response to interrogation are in violation of Miranda v. Arizona, 384 U.S. 436 (1966). See Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992).
Appellant first argues that the statement was “the result of lengthy interrogation, threats of the death penalty, and only after Investigator Roy explained to Lanes it was in his best interests to give it.” We do not regard the interrogation as unduly lengthy, nor do we think the officers’ statement of the possible penalties for the crime with which appellant was charged constitutes a threat. Similarly, the officers’ statement that it would be in appellant’s best interest to tell the truth is not, in itself, objectionable. See Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995).
Appellant’s more serious argument is that principles announced in Michigan v. Jackson, 475 U.S. 625 (1986), require suppression of the statement. Michigan v. Jackson involved two consolidated cases. One defendant, Bladel, was arraigned on a murder charge and asked at his arraignment that an attorney be appointed. The Court appointed counsel and mailed a notice of the appointment to a law firm. Before the notice was received, police officers interviewed Bladel and, after advising him of his Miranda rights, obtained a confession.
Jackson, the other defendant, also asked that counsel be appointed for him during his arraignment on murder charges. The next day, before he had an opportunity to consult with counsel, police officers interviewed him and, again after advising him of his rights under Miranda, obtained a confession. In both cases the investigating officers were present at the arraignment.
In both instances the Michigan trial courts denied the defendants’ motion to suppress. The Michigan Supreme Court reversed, holding that the rule in Edwards v. Arizona, 451 U.S. 477 (1981), “applies by analogy to those situations where an accused requests counsel before the arraigning magistrate. Once this request occurs, the police may not conduct further interrogations until counsel has been made available to the accused, unless the accused initiates further communications, exchanges, or conversations with the police_The police cannot simply ignore a defendant’s unequivo cal request for counsel.” 421 Mich. 39, 365 N.W.2d 56 (1984).
The United States Supreme Court affirmed and in the course of its opinion said:
Indeed, after a formal accusation has been made — and a person who had previously been just a “suspect” has become an “accused” within the meaning of the Sixth Amendment — the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation.
The State points to another factual difference: the police may not know of the defendant’s request for attorney at the arraignment. That claimed distinction is similarly unavailing. In the cases at bar, in which the officers in charge of the investigations of respondents were present at the arraignments, the argument is particularly unconvincing. More generally, however, Sixth Amendment principles require that we impute the State’s knowledge from one state actor to another. For the Sixth Amendment concerns the confrontation between the State and the individual. One set of state actors (the police) may not claim ignorance of defendants’ unequivocal request for counsel to another state actor (the court).
Thus, appellant argues that an attorney had been appointed for him and the officers’ lack of knowledge of this is irrelevant. The critical difference, however, between Michigan v. Jackson and the case at bar is that in Jackson both Jackson and Bladel asked that counsel be appointed to represent them. Here, appellant made no request for counsel and was unaware that counsel had been appointed. In Moran v. Burbine, 475 U.S. 412, 422 (1986), the Court said, “Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” See also, Bussard v. State, 296 Ark. 556, 562, 759 S.W.2d 24, 27 (1988) (Newbern, J., dissenting). We conclude that the trial court’s determination that both the waiver and the statement were knowingly and voluntarily given should be affirmed.
Appellant next argues that the trial court erred in admitting the testimony of James Robinson to the effect that Fred Westbrook told him that appellant shot Michael Perry. We agree. Arkansas Rule of Evidence 802 provides that hearsay is generally inadmissible. “Hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ark. R. Evid. Rule 801(c). The State’s theory at trial was that this evidence was admissible to prove that both Westbrook and Lanes were “pointing the finger at each other.” This theory does not fit within any recognizable hearsay exception. And while it is true that the trial court instructed the jury not to consider the evidence for “the truth of the matter asserted,” the court did not explain to the jury why the evidence was otherwise relevant. Here the fact that the statement was made has no apparent relevance, apart from its content. Despite the court’s admonition to the jury, the statement was clearly inadmissible hearsay. See Davis v. State, 38 Ark. App. 115, 828 S.W.2d 863 (1992). Finally, given the nature of the other evidence in the case, we cannot say with any confidence that the error was harmless. The case must therefore be reversed and remanded on this point.
At the conclusion of the trial, the circuit court awarded appellant’s counsel, Mr. Lewis Etoch, an attorney’s fee of $3,500.00. In the past few years the applicable principles of law have become fairly clear. The trial court should determine fees that are just, taking into consideration the experience and ability of the attorney, the time and labor required to perform the legal service properly, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, the time limitations imposed upon the client’s defense or by the circumstances, and the likelihood, if apparent to the court, that the acceptance of the particular employment will preclude other employment by the lawyer. Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991); see also State v. Crittenden County, 320 Ark. 356, 896 S.W.2d 881 (1995). There is no fixed formula for computing attorney’s fees, and the appellate court will defer to the superior perspective of the trial judge to weigh and apply the factors set forth in Arnold v. Kemp, because of the trial court’s intimate familiarity with the proceedings and with the quality of services rendered. Price v. State, 313 Ark. 96, 98-A, 856 S.W.2d 10 (1993), (supplemental opinion denying rehearing); State v. Crittenden County, supra. The discretion of the trial court will not be disturbed on appeal in the absence of an abuse of that discretion. Price, supra; State v. Campbell, 312 Ark. 593, 851 S.W.2d 434 (1993). “Just compensation” does not mean full compensation in the sense that the trial court need not simply award fees based on the attorney’s customary hourly charges. See State v. Campbell, supra; Arnold v. Kemp, supra.
After trial Mr. Etoch presented a petition seeking attorney’s fees in the amount of $19,500.00. The petition recited that Mr. Etoch practiced law for more than five years in Helena; that he would customarily charge $110.00 per hour in a capital murder case; that he had tried more than fifteen felony criminal jury cases; and that he devotes a substantial amount of his practice to criminal law. Mr. Etoch submitted an itemized statement that shows a total of 138.75 hours expended in the case together with another itemized statement from his father, Mike Etoch, showing an additional 29 hours expended in assisting. He appended an affidavit from Jimmy L. Wilson, a Phillips County attorney, which stated, among other things, that the fee Etoch sought was fair and reasonable.
After the court awarded the fee, Mr. Etoch petitioned for reconsideration and the court entered an order:
Findings of Fact
Mr. Louis Etoch, appointed attorney for Rodney Lanes, has filed a “Petition for Reconsideration of Attorney’s Fees, Specific Findings of Facts and Conclusions of Law, A Request for A Hearing” and the Court finds:
Mr. Louis Etoch was appointed to represent Rodney Lanes.
Mr. Etoch represented Rodney Lanes at trial in Lee County.
Mr. Etoch’s request for fee is shockingly exorbitant, outrageous, totally unwarranted, and an example of gross unprofessionalism.
The trial transcript is replete with examples of the uncivil, irreverent and disrespectful conduct of Mr. Etoch. This uncharacteristic misconduct and patent disrespect for the court was considered when the attorney’s fee was set. The court did not intend to punish Mr. Etoch, but rather to try to teach him that disrespect for the authority of the court and unprofessionalism do not pay.
A good example was when the Court ruled on what would be permissible under Rules of Evidence No. 609 in Mr. Etoch’s cross-examination of a state’s witness. Mr. Etoch contemptuously ignored the rulings of the Court in direct violation of same.
An example of the misuse of the Court’s time was when Mr. Etoch caused the Court to hold a special hearing on the manner in which the venire was notified. This occurred after the trial. During voir dire, Mr. Etoch did not exercise all of the available peremptory challenges.
A few minutes of simple, preparatory research would have quickly revealed that a criminal defendant cannot complain of the jury composition if he does not exhaust his peremptory challenges; Brown v. State, 395 S.W.2d 344, 239 Ark. 909, cert. denied 86 S. Ct. 1985.
Arnold v. Kemp, 813 S.W2d 770, 306 Ark. 294 (1991), holds that the trial court should consider the following to determine compensation for attorneys representing indigent criminal defendants:
a.) experience and ability
b.) time and labor
c.) novelty and difficulty of issues involved
State v. Independence County, 850 S.W.2d 842, 312 Ark. 472 (1993), stated:
“In awarding fees to Messrs. Arnold and Allen for reasonably expended services, we do not mean that the trial court must simply award fees based on their customary hourly charges or fixed fees” and
“time spent on theories which are unfounded in fact or law, or those which have been repeatedly rejected by appellate courts, are presumptively noncompensable absent special circumstances.”
Conclusions
The trial court has both the right and duty not to allow an attorney to misuse valuable trial time.
The trial court has a duty not to allow an attorney to succeed in a course of action resulting in an unwarranted attorney’s fee.
The trial court has the right and duty to use the criteria set forth in Arnold v. Kemp, supra, in setting attorneys’ fees, and to also consider, when appropriate, the following additional criteria:
a.) professionalism
b.) respect for the Court
c.) proper use of trial court time
d.) courteousness
e.) contemptuous behavior
The previously set attorney fee of $3,500.00 is appropriate in this case.
To accede to Mr. Etoch’s request for a higher fee would be a serious mistake and encourage greed, avarice, and unprofessional conduct.
IT IS THEREFORE BY THIS COURT ORDERED THAT Mr. Etoch’s Petition for Reconsideration and other relief, be and the same is hereby denied.
We cannot say that the “additional criteria” considered by the trial judge in setting the attorney’s fee are not factors that the court may consider, although they were not among those mentioned by the supreme court in Arnold v. Kemp and subsequent cases. We do note that there is considerable overlapping among the additional factors considered by the judge.
We cannot say that the judge was wrong to factor in the apparently unnecessary hearing related to the jury panel. The trial court’s assertion that Mr. Etoch “contemptuously ignored” the trial judge’s ruling on the State’s motion in limine as to the scope of cross-examination ofJ.C. Aikens Jr. is somewhat less clear. But in any event the trial court’s finding of fact that Mr. Etoch’s fee request was “shockingly exorbitant” and an example of “gross unprofessionalism” is not supported by this record. Nor is the trial court’s finding that the record is “replete with examples of the uncivil, irreverent, and disrespectful conduct of Mr. Etoch.” To the contrary, the record as a whole demonstrates that Mr. Etoch generally conducted himself in a civil and professional manner throughout the trial.
We have come to the conclusion that the circuit court, in setting the attorney’s fee, focused too much on an isolated incident and not enough on those factors set forth by the supreme court in Arnold v. Kemp, supra.
We take judicial notice that Judge Wilkinson, after many years of honorable service, has now retired. Because the case must be reversed and remanded for a new trial, we likewise remand the question of an appropriate attorney’s fee and direct that the circuit court set the fee after conducting whatever hearing, if any, the court may deem necessary.
Reversed and remanded.
Mayfield and Neal, JJ., agree. | [
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JOHN E. Jennings, Chief Judge.
This is an appeal from an order of the Craighead County Chancery Court that appellant, Dennis R. Aikens, pay child support in the amount of $250.00 per month for the support of his son, Shon. For reversal appellant contends that the court erred in ordering him to pay child support because the child has reached majority and there was no showing of “special circumstances” and that the court erred in regard to the amount of support ordered. We agree with appellant’s first point and therefore need not address the second.
At the time of the hearing the parties’ son, Shon, had reached the age of majority and had finished one year as a student at the University of Arkansas. Shon is a music major and plays in the band, and when he goes on band trips must pay a portion of the cost of room and board. His mother testified that he had allergies and had to take allergy medicine. Shon testified that, at the time of the hearing in the summer of 1994, he was working forty hours a week as a cook at Hardee’s. Ms. Lee testified that although Shon received scholarships, while he was in school it cost her between $120.00 to $150.00 per month.
The chancellor ordered child support in the amount of $250.00 per month beginning September 1, 1994. The court specifically found that there was sufficient justification and need shown for the court to extend child-support payments until the child attended three additional years of college. Support was conditioned on continued enrollment and also upon the child having regular communication with his father.
In ordering child support the court took into consideration the limited amount of support the appellant had paid in the past; that the child had completed one year of school and was a member of the band; and that his extracurricular activities did not permit him to work part-time.
Arkansas Code Annotated section 9-14-237(a)(l) provides:
An obligor’s duty to pay child support for a child shall automatically terminate by operation of law when the child reaches eighteen (18) years of age or should have graduated from high school, whichever is later, or when the child is emancipated by a court of competent jurisdiction, marries, or dies, unless the court order for child support specifically extends child support after such circumstances.
This statute became effective August 13, 1993. Cases decided prior to the effective date of this act held that a parent may not be ordered to support a child who has reached majority absent special circumstances. See Elkins v. James, 40 Ark. App. 44, 842 S.W.2d 58 (1992). The parties to this appeal agree that Ark. Code Ann. § 9-14-237 did not abrogate these prior decisions. We need not decide that question because even if the statute does not supersede prior case law, the award of child support here cannot be sustained.
The question is what kind of circumstances will justify an award of support for a child who has reached majority. In Mitchell v. Mitchell, 2 Ark. App. 75, 616 S.W.2d 753 (1981), an opinion written by Judge Cloninger, we reviewed the existing decisions. We said:
A number of Arkansas cases have held that a parent has a legal obligation to contribute to the education of an adult child, but in every case so holding there has been a circumstance of special need. In Petty v. Petty, 252 Ark. 1032, 482 S.W.2d 119 (1972), the Court held that support should be continued past majority where the daughter was afflicted with epilepsy and was in need of specialized training to obtain employment. In Elkins v. Elkins, 262 Ark. 63, 553 S.W.2d 34 (1977), the father was required to continue child support payments as long as his handicapped adult child was in college. In Matthews v. Matthews, 245 Ark. 1, 430 S.W.2d 864 (1968), the Court ordered support continued for an eighteen-year-old child until she graduated from high school.
We also cited Riegler v. Riegler, 259 Ark. 203, 532 S.W.2d 734 (1976). There the supreme court said:
The question in the case at bar as to the youngest daughter is not whether appellant is morally obligated to assist her financially while attending college, but the question is whether he is legally obligated to do so under the evidence in this case.
The appellant’s daughter involved in the case at bar has reached her majority and is not physically or mentally handicapped. We conclude, on trial de novo, that the appellant should have been relieved of the legal obligation to support his youngest daughter after she obtained her majority and graduated from high school.
While we appreciate the chancellor’s motives in requiring support, we conclude that there is an insufficient showing of “special circumstances” to justify the award. In light of our holding on the first issue raised, appellant’s second argument is moot.
Reversed.
Robbins and Griffen, JJ., agree. | [
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JOHN B. Robbins, Judge.
On August 2, 1994, appellant Shuntae Ingram, twelve years old, was charged as being a delinquent for allegedly having participated in a capital felony murder. The State alleged that, on July 29, 1994, Shuntae attempted to commit aggravated robbery, and in the course of the felony caused the death of Susan Harris under circumstances manifesting extreme indifference to the value of human life. The day following this homicide, Shuntae gave a statement to the police. Shuntae later moved to suppress this statement on the grounds that he did not voluntarily, intelligently, or knowingly waive his rights prior to giving the statement and on November 18, 1994, a hearing was held on the motion to suppress. The motion to suppress was denied, and Shuntae was thereafter adjudicated delinquent and committed to the Department of Youth Services. Shuntae now appeals, arguing only that the trial court erred in admitting his statement into evidence.
A defendant may waive his right to remain silent and his right to counsel only if the waiver is made voluntarily, knowingly, and intelligendy. Miranda v. Arizona, 384 U.S. 436 (1966). Custodial statements are presumed involuntary and the State has the burden of proving otherwise. Johnson v. State, 307 Ark. 524, 823 S.W.2d 440 (1992). Factors to be considered in determining the voluntariness of a custodial statement are the age, education, and intelligence of the accused, the length of the detention during which the statement was given, the use of repeated or prolonged questioning, the use of mental punishment or coercion, and the advice or lack of advice of an accused’s constitutional rights. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). In reviewing the trial court’s denial of a motion to suppress a custodial statement, this court makes an independent determination based on the totality of the circumstances and will reverse the trial court only if the decision was clearly against a preponderance of the evidence. Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990). The credibility of the witnesses, who testify to the circumstances surrounding the defendant’s custodial statement, is for the trial court to determine. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).
When, as in the case at bar, the custodial statement at issue was elicited from a juvenile, certain additional precautions must be taken with respect to the juvenile’s waiver of his right to counsel. These are enumerated in Arkansas Code Annotated § 9-27-317 (Repl. 1993), which provides:
(a) Waiver of the right to counsel shall be accepted only upon a finding by the court from clear and convincing evidence, after questioning the juvenile, that:
(1) The juvenile understands the full implications of the right to counsel;
(2) The juvenile freely, voluntarily, and intelligently wishes to waive the right to counsel; and
(3) The parent, guardian, custodian, or counsel for the juvenile has agreed with the juvenile’s decision to waive the right to counsel.
(b) The agreement of the parent, guardian, custodian, or attorney shall be accepted by the court only if the court finds:
(1) That such person has freely, voluntarily, and intelligently made the decision to agree with the juvenile’s waiver of the right to counsel;
(2) That such person has no interest adverse to the juvenile; and
(3) That such person has consulted with the juvenile in regard to the juvenile’s waiver of the right to counsel.
(c) In determining whether a juvenile’s waiver of the right to counsel was made freely, voluntarily, and intelligently, the court shall consider all the circumstances of the waiver, including:
(1) The juvenile’s physical, mental, and emotional maturity;
(2) Whether the juvenile and his parent, guardian, custodian, or guardian ad litem understood the consequences of the waiver;
(3) Whether the juvenile and his parent, guardian, or custodian were informed of the alleged delinquent act;
(4) Whether the waiver of the right to counsel was the result of any coercion, force, or inducement;
(5) Whether the juvenile and his parent, guardian, custodian, or guardian ad litem had been advised of the juvenile’s right to remain silent and to the appointment of counsel.
(d) No waiver of the right to counsel shall be accepted in any case in which the parent, guardian, or custodian has filed a petition against the juvenile, initiated the filing of a petition against the juvenile, or requested the removal of the juvenile from the home.
(e) No waiver of the right to counsel shall be accepted in any case where counsel was appointed due to the likelihood of the juvenile’s commitment to an institution under § 9-27-316(d).
(f) All waivers of the right to counsel shall be in writing and signed by the juvenile and his parent, guardian, or custodian.
Officer Scott Armstrong of the North Little Rock Police Department testified that, at about 2:00 p.m. on July 29, 1994, Shuntae and his mother arrived at the police station for questioning. Using a standard Statement of Bights form, Officer Armstrong read each right to Shuntae, and Shuntae initialled and represented that he understood each right. Officer Armstrong stated that Shuntae was very attentive, did not appear to be under the influence of alcohol or drugs, and did not appear unwilling to waive his rights. Shuntae’s mother was present at all times during the explanation of Shuntae’s rights and during his statement, and prior to the statement she signed a rights waiver form and consented to him giving a taped account of the events of the previous day.
Officer Jim Chapman was also present during the questioning of Shuntae. He stated that he recorded Shuntae’s statement and that the statement was given without objection by either Shuntae or his mother. The taped statement lasted from about 4:51 p.m. until 5:31 p.m. According to Officer Chapman, Shuntae was not coerced and, as far as he could tell, his statement was voluntary. He further testified that he told Shuntae and his mother that they could have a lawyer, and that if they asked for a lawyer at any time he would stop the questioning. However, neither, requested a lawyer nor asked that the questioning be terminated.
Shuntae’s taped statement indicated that he had been involved in criminal activity on the previous day. He told the police officers that he and three other boys entered a North Little Rock residence in an attempt to rob a suspected drug dealer of drugs and money. According to Shuntae, he and the other boys tied shirts over their faces to hide their identity, and upon entering the house one of the boys pulled a gun and demanded money. The victim, Susan Harris, pulled a gun out of her purse in an attempt to defend herself, at which time a struggle ensued and Ms. Harris was fatally shot. After taking some money and drugs, the boys fled.
Shuntae’s mother gave testimony regarding the custodial interrogation, and stated that the officers asked her if it was all right for Shuntae to answer some questions, to which she replied, “Yes.” She testified that she wanted to know the truth, and advised Shuntae to tell the officers what had happened. Ms. Ingram acknowledged that she signed the waiver of rights form, that she was aware that anything Shuntae said could be used against him in court, and that the officers told Shuntae that he did not have to talk to them. She also admitted that the police never threatened Shuntae. However, Ms. Ingram stated that both she and her son were scared and nervous during the interrogation.
Shuntae testified on his own behalf, and acknowledged that he signed the rights waiver forms. He stated that the officers told him if he did not tell the truth he could get the electric chair, but further stated “[t]he police didn’t really threaten me.” Shuntae asserted that he did not really understand his rights when he waived them. However, he remembered the officers telling him that he did not have to talk to them and that any statement he made could be used against him in court. He testified that he decided to tell the police what had happened because his mother advised him to do so.
For reversal, Shuntae contends that his statement was erroneously admitted into evidence because it was not a product of a voluntary, intelligent, or knowing waiver of his constitutional rights. He asserts that he and his mother were nervous when they agreed to cooperate with the officers, and that neither folly understood his rights. Shuntae further points out that he was only twelve years old at the time of the interrogation, and that he had below average comprehension and reading skills. Dorothy Wooley, an educational examiner, testified that Shuntae could read and write, but only on about a fourth-grade level. Ms. Wooley also diagnosed Shuntae with Attention Deficit Hyperactivity Disorder (ADHD), and she testified that the impulsiveness associated with this disorder could have impacted his signing of the waiver form. Finally, Ms. Wooley concluded that “I do not believe Shuntae’s intellectual development is such that he could perceive the implications and consequences of signing [the] form after having it read to him.”
We find that the State satisfied the requirements of Ark. Code Ann. § 9-27-317 (Repl. 1993) and that, based on the totality of the circumstances, the trial court’s refusal to suppress Shuntae’s confession was not clearly against a preponderance of the evidence. Shuntae and his mother signed the requisite rights waiver forms and both acknowledged that they understood that Shuntae did not have to give a statement and that anything he said could be used against him in court. Although Shuntae testified that the officers threatened him with the electric chair if he refused to give a statement, the trial court was not bound to believe this testimony. Significantly, both Shuntae and his mother agreed that his statement was not coerced. Rather, the statement was given because Shuntae’s mother advised him to tell the truth. Moreover, the evidence shows that Shuntae and his mother were repeatedly informed of his right to an attorney, and that if this right was invoked the questioning would stop. The officers indicated that Shuntae gave the statement voluntarily and noted that he was calm and attentive during questioning. The questioning lasted about three-and-one-half hours, and Officer Chapman stated that during this time he would have given Shuntae periodic breaks, but none were requested. On these facts, we find no error in the trial court’s admission of the statement.
Shuntae makes much of the fact that he was only twelve years old at the time of his confession, possessed below-average mental abilities and was afflicted with ADHD. Nevertheless, Ms. Wooley acknowledged that he could read and write and the evidence showed that he had completed the sixth grade. Despite his alleged mental deficiencies, our supreme court has on numerous occasions upheld a suspect’s waiver of Miranda rights even when the suspect was determined to be intellectually impaired. See Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993); Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989). Although Shuntae was twelve years old, youth alone will not prevent a voluntary confession or a knowing waiver of constitutional rights. See Rouw v. State, 265 Ark. 797, 581 S.W.2d 313 (1979). We find that Shuntae’s age and mental capacity were factors to consider, but the trial court committed no error in concluding that these factors did not render his confession inadmissible.
Affirmed.
Cooper and Stroud, JJ., agree. | [
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JAMES R. Cooper, Judge.
The appellant in this probate case was the administratrix of the estate of her brother, Bennie C. Keown. Wilma Patón filed a motion for an order determining her to be the biological daughter of Bennie C. Keown. After a hearing, the probate judge entered an order on August 15, 1991, finding that Bennie C. Keown executed documents recognizing that Wilma Patón is his natural daughter; that Wilma Patón was in fact the natural daughter of Bennie C. Keown; and that Wilma Patón was therefore entitled to inherit from the estate pursuant to the provisions of Ark. Code Ann. § 28-9-209(d)(2) (1987). The appellant filed a motion to set aside the order, alleging that newly discovered evidence existed which tended to prove Wilma Patón was not the natural daughter of the decedent. The appellant also filed a motion to disqualify Henry N. Means III as attorney for the estate. After a hearing, the probate judge denied both motions. From that decision, comes this appeal.
For reversal, the appellant contends that the probate judge abused his discretion in refusing to set aside the order entered on August 15, 1991, and in denying the motion to disqualify Henry N. Means III as attorney for the estate. We affirm.
Arkansas Code Annotated § 28-1-115(a) (1987) allows a probate court to vacate or modify its orders at any time before the time for appeal has elapsed after the final termination of the estate. White v. Toney, 37 Ark. App. 36, 823 S.W.2d 921 (1992). By its terms, this statute permits such modification or vacation upon a showing of “good cause.” Ark. Code Ann. § 28-1-115(a), supra. The initial question in the case at bar is, therefore, whether the probate judge erred in failing to find good cause to vacate the order. We hold that he did not. The appellant’s present attorney argues that there is newly discovered evidence consisting of a burial instruction sheet in which the space to list children was left blank, and evidence to show that the decedent had a test revealing a low sperm count several years after Wilma Paton’s birth. The appellant’s new attorney filed a motion to compel Wilma Patón to submit to a blood test, suggesting to the probate judge that the decedent’s body could be exhumed so that tissue samples could be obtained for genetic testing. Although this zeal on behalf of new counsel is perhaps laudable, it nevertheless appears from the record that no satisfactory explanation was offered to show why this evidence could not have been obtained prior to entry of the order that the appellant seeks to have set aside. Accordingly, we hold that the probate judge did not err in failing to find good cause for vacation of the order determining Wilma Patón to be the daughter of the decedent. See Brantley v. Davis, 305 Ark. 68, 805 S.W.2d 75 (1991).
Next, the appellant contends that the probate court erred in denying her motion to disqualify Henry N. Means III as attorney for the estate. This motion was based on the fact that Mr. Means had previously represented the appellant in a highway condemnation suit in 1983.
Rule 1.9 of the Model Rules of Professional Conduct precludes a lawyer who has formerly represented a client from representing another person in “the same or a substantially related matter.” On this record, we cannot say that the probate judge erred in failing to find that the highway condemnation suit of 1983 was “the same or substantially related” to the determination of heirship at issue in the case at bar and, consequently, we affirm.
Affirmed.
Robbins and Stroud, JJ., agree. | [
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Terry Crabtree, Judge.
This appeal involves a family dispute over the funds in two savings accounts owned by Joseph Bosley, who died on February 3, 2001, at the age of ninety-two. Mr. Bosley, who was widowed, lived alone in his house in Little Rock and was relatively independent, although he relied on others to help him run errands. He drew social security benefits, and had savings accounts with Regions Bank and Bank of America. Mr. Bosley had several siblings, including appellants Mary Bosley and Willien Wesley, who lived in California. Mr. Bosley’s nephew, appellant Tommy Jones, who also lived in California, had Mary Bosley’s power of attorney. Appellee James Williams is the nephew of Mr. Bosley’s deceased wife and lives in Little Rock. Mr. Williams provided substantial assistance to Mr. and Mrs. Bosley before Mrs. Bosley died and a lesser amount of help to Mr. Bosley thereafter. Appellee Mary Módica is Mr. Bos-ley’s granddaughter, who lives in Texas. Mr. Williams and Ms. Módica are the beneficiaries of Mr. Bosley’s will, and Mr. Williams is executor of the estate.
In May 2000, Mr. Jones came to Arkansas and accompanied Mr. Bosley to Regions Bank and Bank of America, where Mr. Bosley placed Mary Bosley’s name as a joint tenant with right of survivorship on his savings accounts. Mrs. Wesley came to Arkansas in June 2000, and Mr. Bosley added her name as a joint tenant to those accounts while she was here. In November 2000, Mr. Bosley broke his arm and was hospitalized. He also had cancer and became too ill to live alone. While Mr. Bosley was in the hospital, Mrs. Wesley and Mr. Jones came back to Arkansas and removed some of the furniture from his house, changed the house’s locks, had Mr. Bosley’s mail forwarded to Mr. Jones’s residence in California, and terminated the utilities to Mr. Bosley’s house. They also had Mr. Bosley admitted to the Quapaw Quarter Nursing Home and Rehabilitation Center, where Mr. Bosley died the next February. Although the nursing home received some payments on his account, apparently from his social security benefits, a substantial sum remained unpaid. The nursing home was unaware that Mr. Bosley had approximately $100,000 in Savings. Immediately after Mr. Bosley’s death, appellants transferred the funds in the Bank of America account ($42,000) in equal amounts to Mary Bosley’s and Mrs. Wesley’s bank accounts in California.
Immediately after the funeral, appellees filed suit in the Pulaski County Circuit Court against appellants for injunctive relief prohibiting any further transfer of the funds and ordering the Bank of America funds to be returned. Mr. Williams also initiated the probate of Mr. Bosley’s estate, and Mr. Jones filed a claim for the money he had spent on Mr. Bosley’s funeral services. The cases were consolidated.
In his decision, the judge found that Mrs. Wesley and Mr. Jones were untruthful, “less than credible,” and deceptive. He found the testimony of Mr. Williams, Will Bosley (Mr. Bosley’s brother), Catherine Harper (Mr. Bosley’s niece), and Shirley Lewis (his neighbor for thirty years) to be credible. The judge found that appellants had exercised unauthorized and wrongful control of Mr. Bosley’s home and its contents. He also found that, when appellants communicated with the nursing home regarding Mr. Bosley’s assets in order to obtain Medicaid benefits, they deceived the nursing home by failing to disclose that Mr. Bosley had approximately $100,000 in savings. He further found that Mrs. Wesley and Mr. Jones had failed to pay the nursing home for Mr. Bosley’s care.
The judge also made the following findings, which are at the heart of the issues on appeal:
11. That Joseph “Joe” Bosley’s acts of adding Willien Wesley and Mary Bosley’s names to his savings accounts were gifts.
12. That Willien Wesley, Mary Bosley and Tommy Jones induced Joseph “Joe” Bosley to add the names of Willien Wesley and Mary Bosley to his savings accounts by promising Joseph “Joe” Bosley they would care for Joseph “Joe” Bosley at his home versus being placed in a nursing home.
13. That the relationship between Willien Wesley, Mary Bosley, Tommy Jones, and Joseph “Joe” Bosley was the sort of relationship that raises a legal or evidentiary presumption of invalidity of gifts.
14. That there is substantial evidence Willien Wesley, Mary Bosley, and Tommy Jones defrauded, coerced and/or took undue advantage of Joseph “Joe” Bosley to secure the gifts regarding the Regions Bank and Bank of America savings account funds.
19. That the Court finds that Joseph “Joe” Bosley, shortly before his death, realized he had been deceived into transferring his Savings Account to a joint account with a right of survivor-ship to Willien Wesley and Mary Bosley with the promise of maintaining Joseph “Joe” Bosley in home during his old age and/ or ill health, but Joseph “Joe” Bosley was too ill or frail to take the necessary actions to rectify the situation with his Savings Accounts by removing Willien Wesley and Mary Bosley’s names from the Regions Bank and Bank of America.savings accounts.
The judge found that appellees had sustained their burden of proof by clear and convincing evidence that the gift or transfer of the funds was obtained by the defendants as a result of undue influence, fraud, or overreaching or by a means condemned by law. He also found that appellees had sustained their burden of proving that the relationship between Mr. Bosley and appellants was
of such a nature as to raise a presumption that the gift in favor of [appellants] was obtained by an abuse of that relationship; that the [appellees’] proof shifted the burden of proof to the [appellants] to prove the legitimacy of the gift; and, the [appellants] failed to'meet their burden of establishing the legitimacy of the gift.
The judge entered judgment in the amount of $42,000 against appellants, ordered them to transfer all sums held in Regions Bank to Mr. Bosley’s personal representative, and enjoined them from removing the funds held in Regions Bank. The judge stated' that Mr. Jones’s claim against the estate for the funeral expenses would be offset and satisfied by the furniture and property appellants had removed from Mr. Bosley’s home without authority.
Arguments
Appellants make the following arguments on appeal: (1) the judge erred in denying their claim to the funds on the ground that they failed to establish a gift; (2) the judge erred in finding that a confidential relationship existed between Mr. Bosley and appellants; (3) the judge erred in shifting the burden of proving the validity of the gift to appellants; (4) there was insufficient evidence to prove undue influence, fraud, or overreaching on the part of appellants; (5) the judge erred in entering a judgment for the nursing home bill against Mrs. Wesley and Mr. Jones; (6) the judge erred in offsetting Mr. Jones’s claim against the estate for the funeral services with the furniture and property appellants had taken from Mr. Bosley’s house. Although we agree that the judge erred in applying the law of gifts, finding that Mr. Bosley had a confidential relationship with appellants, and shifting the burden of proof to appellants, reversal is not warranted for the reasons expressed below.
Whether a Gift Whs Made
Appellants contend that, because their claim to the bank accounts is based on their rights as surviving joint tenants, the judge erred in applying the rules of law relating to gifts. We agree. The law governing the validity of gifts inter vivos is well settled. The donor must be of sound mind, must actually deliver the gift with intention to vest immediate title, and the gift must be accepted by the donee. Burns v. Lucich, 6 Ark. App. 37, 638 S.W.2d 263 (1982). Ordinarily, in cases involving claims of undue influence or lack of capacity to make a gift, the burden of proof is upon one who attacks such a gift to prove that the donor lacked the capacity to give the gift or was unduly influenced. Id. However, a different burden of proof arises when it is shown that a confidential relationship existed between the donee and the donor. Id. Where special trust or confidence has been shown, a gift to the dominant party is presumed to be void, and the burden then rests upon the dominant recipient to show that he has not overreached the giver. Id.
We believe that, because Mr. Bosley did not release all future dominion and control over the bank accounts in question, an inter vivos gift was not proven, see Wright v. Union National Bank of Arkansas, 307 Ark. 301, 819 S.W.2d 698 (1991), and the judge erred in applying the law of gifts. We also note that appellants’ claim to the funds in these accounts is based on their rights as surviving joint tenants, not on their rights as recipients of a gift. It is settled law that claims based on survivorship rights are distinguishable from gifts. Coleman v. Coleman, 59 Ark. App. 196, 955 S.W.2d 713 (1997).
Whether There Was a Confidential Relationship
Appellants contend that the judge erred in finding that a confidential relationship existed because appellees failed to plead it. If evidence showing such a relationship had been introduced, it would be proper to consider the pleadings as amended to conform to the proof. However, such evidence is absent.
The evidence does not support the judge’s finding that appellants had a confidential relationship with Mr. Bosley. Relationships deemed to be confidential arise whenever there is a relation of dependence or confidence, especially confidence which springs from affection on one side and a trust in reciprocal affection on the other. Jones v. Balentine, 44 Ark. App. 62, 866 S.W.2d 829 (1993). A confidential relationship, however, is not established simply because parties are related. Wright v. Union Nat’l Bank of Ark., supra. It is apparent that Mr. Bosley’s relationship with appellants was no closer than it was with his other relatives. In fact, the overwhelming evidence showed that Mr. Bosley had little contact with appellants. There is no evidence showing any special trust or dependence on Mr. Bosley’s part or any position of dominance on the part of appellants. Accordingly, we hold that the judge’s finding that a confidential relationship existed is clearly erroneous and, therefore, the judge erred in shifting the burden of proof to appellants. As explained below, however, these errors do not require reversal.
Fraudulent Inducement
Appellants assert that the judge’s finding of undue influence, fraud, and coercion on the part of appellants is clearly erroneous. Although we agree that no coercion or undue influence was shown, the judge’s decision can be affirmed on the basis of fraudulent inducement. If the trial judge reached the right result in a traditional equity case, we will affirm even if we disagree with the judge’s reasoning. Wedin v. Wedin, 57 Ark. App. 203, 944 S.W.2d 847 (1997). As discussed above, only part of the judge’s decision is clearly erroneous.
In order to establish fraud, the party asserting it must prove by a preponderance of the evidence: (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) justifiable reliance on the representation; and (4) damage suffered as a result of the reliance. Golden Tee, Inc. v. Venture Golf Schools, Inc., 333 Ark. 253, 969 S.W.2d 625 (1998). The question of fraud is ordinarily one of fact. Godwin v. Hampton, 11 Ark. App. 205, 669 S.W.2d 12 (1984).
Appellants denied having promised to care for Mr. Bosley in his home in consideration for the addition of Mrs. Wesley’s and Mary Bosley’s names on the accounts. As mentioned above, however, the judge had no faith in Mrs. Wesley’s and Mr. Jones’s veracity. As the fact-finder, it was within the trial judge’s province to believe or disbelieve the testimony of any witness. See Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). Deference is generally accorded to the superior position of the judge to assess the credibility of the witnesses and the weight to be given their testimony. Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000).
By all accounts, Mr. Bosley was very “tight” -with his money. It is reasonable to conclude that he would not have added his sisters’ names to his savings accounts if they had not promised to take care of him in return. There is ample evidence to support the judge’s finding that appellants did make this promise. Will Bosley testified that when Mr. Bosley was in the nursing home, he told him that his sister had promised to stay in his house and take care of him if he signed over the money. Catherine Harper stated that, near the end of her uncle’s life,'she visited him in the hospital and he told her that Mrs. Wesley was coming to Little Rock to take care of him. Mary Módica also testified that Mr. Bosley had told her that his sister was going to take care of him. Mrs. Wesley admitted that the nursing home’s log book indicated that Mr. Bosley had told the administrator that Mrs. Wesley was staying at his house in Little Rock. Mr. Williams testified that, when he saw Mr. Bosley in the hospital, he said that he was going home to live with his sisters when he was discharged. He testified that after Mr. Bosley was in the nursing home, he asked Mr. Williams not to “throw him away” like his family had and that, although they were supposed to be in his house, they had gone back to California, and he “had been a fool.”
Additionally, evidence demonstrating that appellants never intended to follow through with their promise to care for Mr. Bosley in his home was presented. After Mr. Bosley’s sisters secured their names on his accounts in May and June 2000, they returned to California. Mrs. Wesley and Mr. Jones did not return to Little Rock until Mr. Bosley was in the hospital in the fall of 2000. Also, Mrs. Wesley and Mr. Jones changed the locks on Mr. Bosley’s house and disposed of a substantial amount of Mr. Bos-ley’s furniture when he was in the hospital. Obviously, they did not intend to take care of him in his home after that time. Indeed, appellants made no attempt to follow through on their promise to care for Mr. Bosley in his home.
As for justifiable rebanee, there is no question that Mr. Bosley added his sisters’ names to his savings account. Further, there is no dispute that, as a result of Mr. Bosley’s rebanee on his sisters’ promise, his estate had to file suit to recover his money. Also, Mr. Bosley did not receive the promised in-home care, and incurred substantial nursing home costs as a result.
Based on this evidence, the judge’s finding that appellants fraudulently induced Mr. Bosley to add his sisters’ names to the accounts is not clearly erroneous.
The Nursing Home Bill
Appebants’ fifth point on appeal is stated as fobows: “The trial court abused its discretion by entering a judgment assigning the outstanding nursing home bib for Quapaw Quarter Nursing Home and Rehabbitation Center to Wibien Wesley and Tommy Jones.” However, no such judgment is in the record on appeal. In his order, the trial judge simply noted that Mrs. Wesley and Mr. Jones had failed to pay the nursing home for Mr. Bosley’s care; he did not enter a judgment against them for this bib. At the trial, the judge stated that, regardless of whether the estate recovered the money, it would be responsible for the nursing home bib. This argument is, therefore, without merit.
Mr. Jones’s Claim Against the Estate
Appebants also contend that the judge erred in offsetting Mr. Jones’s claim for the funeral services, for which he paid, against the property that appebants had wrongfuhy removed from Mr. Bosley’s home. According to appellants, this is so because no evidence was taken as to the value of that property. Although we agree that no valuation evidence was admitted, the judge’s decision on this issue can be affirmed. The clean-hands maxim, which was obviously applied by the judge, bars relief to those guilty of improper conduct in the matter as to which they seek relief. Lucas v. Grant, 61 Ark. App. 29, 962 S.W.2d 388 (1998). Equity will not intervene on behalf of a party whose conduct in connection with the same matter has been unconscien-tious or unjust. Cardinal Freight Carriers, Inc. v. J.B. Hunt Transp. Serv’s., Inc., 336 Ark. 143, 987 S.W.2d 642 (1999). In determining whether the clean-hands doctrine should be applied, the equities must be. weighed. Estate of Houston v. Houston, 31 Ark. App. 218, 792 S.W.2d 342 (1990). It is within the judge’s discretion as to whether the interests of equity and justice require application of the doctrine. Grable v. Grable, 307 Ark. 410, 821 S.W.2d 16 (1991); Lucas v. Grant, supra. Further, a court of equity may fashion any reasonable remedy justified by the proof. Jones v. Ray, 54 Ark. App. 336, 925 S.W.2d 805 .(1996).
Although Mrs. Wesley testified that the property she and Mr. Jones removed from the house was run down and broken, Mr. Williams stated that Mr. Bosley’s furniture was nice and that the missing items included two lawn chairs, a freezer, all of the furniture in the guest room (a bed, a dresser, a mirror, a chest of drawers, a mattress set, and the lamps), the living room couch, lamps, and rugs, the kitchen table and chairs, and the hall cabinet. Given appellants’ fraudulent inducement of Mr. Bosley’s placement of his sisters’ names on his savings accounts and their wrongful control and disposition of Mr. Bosley’s personal property during his last illness, we hold that the judge did not abuse his discretion in treating Mr. Jones’s claim as he did.
Affirmed.
Stroud, C.J., and Robbins, J., agree.
Although pleadings are required so that each party will know the issues to be tried and be prepared to offer his proof, Rule 15(b) of the Arkansas Rules of Civil Procedure permits die amendment of the pleadings to conform to the evidence introduced at trial. Hope v. Hope, 333 Ark. 324, 969 S.W.2d 633 (1998). Issues not raised in the pleadings but tried with the express or implied consent of the parties are treated as though they had been pled. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 701 (1997). The failure of a party to move to have the pleadings conform to the proof does not affect the trial on the issue in question. Id. | [
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] |
John B. Robbins, Judge.
Appellant Arkansas Department of Human Services appeals the entry of an order of the Craighead County Circuit Court that found appellee Merle Haen, a certified nursing assistant, not to have abused an eighty-seven-year-old female resident of the Rose Care Nursing Home. DHS prevailed before the administrative agency on its complaint that such abuse occurred on May 15, 2000, resulting in Haen being placed on the Certified Nursing Abuse Registry. Haen appealed, and the circuit court reversed the agency decision, expunging Haen’s name from the abuse registry. This appeal followed, and DHS argues to us that the agency decision should be reinstated. We disagree and affirm the circuit court’s order.
This court’s review is limited in scope and is directed not to the decision of the circuit court but to the decision of the administrative agency. Arkansas Cont. Lic. Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001); Tomerlin v. Nickolich, 342 Ark. 325, 27 S.W.3d 746 (2000). Review is limited to ascertaining whether there is substantial evidence to support the agency’s decision. Tomerlin v. Nickolich, 342 Ark. at 331, 27 S.W.3d at 749; Arkansas Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998); Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). Substantial evidence is defined as “valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture.” Tomerlin v. Nickolich, 342 Ark. at 333, 27 S.W.3d at 751 (quoting Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 362, 994 S.W.2d 456, 461 (1999)). The challenging party has the burden of proving an absence of substantial evidence. Id. To establish an absence of substantial evidence, the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Id. The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Id. We review the entire record in making that determination. Arkansas Bd. of Exam’rs v. Carlson, supra. Administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. Tomerlin v. Nickolich, supra.
These standards are consistent with the provisions of the Administrative Procedure Act at Ark. Code Ann. §§ 25-15-201 to 25-15-214 (Repl. 1996). Under the Administrative Procedure Act, the circuit court or appellate court may reverse the agency decision if it concludes:
(h) [T]he substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-15-212(h) (Repl. 1996).
The allegations in this case were predicated on the laws found in Chapter 28 of the Code, titled “Abuse of Adults,” Ark. Code Ann. §§ 5-28-101, et seq. These laws were designed primarily to protect the health, welfare, safety, and dignity of elder Arkansans. In the definitions, “abuse” is defined as:
(A) Any intentional and unnecessary physical act which inflicts pain on or causes injury to an endangered or impaired adult, including sexual abuse; or
(B) Any intentional or demeaning act which subjects an endangered or impaired adult to ridicule or psychological injury in a manner likely to provoke fear or alarm[.]
Ark. Code Ann. § 5-28-101 (Repl. 1997). The administrative law judge specifically noted section 5-28-101 in her letter opinion and found that Mr. Haen negligently pushed the wheelchair of a nursing home resident, Ms. Shelby, into Shelby’s room, causing the wheelchair and Shelby’s foot to hit a wall. The judge further found that despite the small size of the room at the nursing home, this negligent act was not necessary and that Haen should have taken care to make sure that Shelby was placed in her room without causing harm to her or her wheelchair.
The evidence taken at the administrative hearing included the testimony of eyewitness Brenda Welch, whose mother was Shelby’s roommate at the Jonesboro, Arkansas, facility. Welch said that in May 2000, as she sat in a chair in her mother’s room, she saw Shelby’s wheelchair come through the door “pretty fast” and then hit the wall. Shelby cursed and cried out. Welch could not see who pushed the wheelchair in, and Shelby rephed that it was “that boy.” Welch asked Haen if he pushed her in, and Haen said that he did, expressed remorse, and said that they were shorthanded. Welch believed that Shelby had severe arthritis such that it hurt her to move or be touched based on her observations of Shelby constantly complaining. The nursing-home administrator testified that Haen was subsequently terminated, but not for this incident.
Haen presented two former employees to explain the working conditions at the nursing home and their experience with Ms. Shelby. Melissa Efird testified that Ms. Shelby suffered from arthritis and that she always “hollered” every time she was moved. Efird also said that the rooms were so small that it was difficult not to scrape the door with a resident’s wheelchair. John Green essentially echoed Efird’s testimony about Ms. Shelby and the difficulty of maneuvering wheelchairs in the rooms. Green added that Haen’s bedside manner was really good. There was a stipulation that additional witnesses, residents of the nursing home where Haen was currently working, would testify that Haen gave them good care. Haen then stated on the record that there was no evidence whatsoever that Ms. Shelby was injured. Haen also asked the ALJ to review the criminal reports that had cleared him of any wrongdoing and noted that Shelby was examined and found to be without injury and even said nothing was wrong with her foot.
Haen argues that the ALJ found Haen’s act to be negligent and unnecessary but that this does not meet the threshold statutory requirement to constitute abuse. Haen is correct. The ALJ concluded that Haen’s conduct “was abusive under Arkansas Code Annotated § 5-28-101(1),” without specifying which of the two definitions of abuse in § 5-28-101(1) she was applying. However, in the ALJ’s discussion of the case, she only refers to the definition of “abuse” contained in subsection (A) of § 5-28-101(1), i.e., “Any intentional and unnecessary physical act which inflicts pain on or causes injury to an endangered or impaired adult.” She further found that the appellant’s act was “not necessary.” The ALJ’s opinion does not evince that any consideration was given to whether appellant’s conduct would come within the definition of “abuse” contained in subsection (B) of § 5-28-101(1), i.e., whether this would be a “demeaning act which subjects an endangered or impaired adult to ridicule or psychological injury in a manner to provoke fear or alarm.” Nor did appellant contend on appeal to the circuit court or now before our court that subsection (B) was applicable. Consequently, our consideration is limited to a review of the findings and legal rationale announced by the ALJ.
Arkansas Code Annotated section 5-28-101 (1)(A) requires that the wrongful act be both “intentional and unnecessary.” Although an agency’s interpretation of a statute is highly persuasive, where the statute is not ambiguous, we will not interpret it to mean anything other than what it says. Social Work-Licensing Bd. v. Moncebaiz, 332 Ark. 67, 71, 962 S.W.2d 797, 799 (1998). Simply put, the ALJ did not make the requisite findings to support the violation she found. Therefore, substantial evidence does not support the agency decision.
DHS attempts to change the basis of the agency decision by arguing that the intent of this chapter in the Code found at Ark. Code Ann. § 5-28-102 would necessarily bring Haen’s act into the definition of abuse. The legislature recognized that “rehabilitative and ameliorative services are needed to provide for the detection and correction of the abuse, maltreatment, or exploitation of adults who are unable to protect themselves.” Ark. Code Ann. § 5-28-102(a). This section goes on to state that:
“Abuse, maltreatment, or exploitation” includes any willful or negligent acts which result in neglect, malnutrition, sexual abuse, unreasonable physical injury, material endangerment to mental health, unjust or improper use of an adult for one’s own advantage, and failure to provide necessary treatment, attention, sustenance, clothing, shelter, or medical services by a caretaker or by the impaired individual.
Id. at subsection (b). We agree that the overriding purpose is to protect the elderly and incapacitated from willful or negligent acts in general, but the specific section cited by the agency as found to be true was not supported by the findings that were made. Courts may not accept the appellate counsel’s post hoc rationalizations for an agency action; an agency’s action must be upheld on a basis articulated by the agency itself. Motor Vehicle Mfr. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983); AT&T Communications of Southwest, Inc. v. Arkansas Pub. Serv. Comm’n, 40 Ark. App. 126, 843 S.W.2d 855 (1992).
The agency decision is reversed, and the circuit court’s order is affirmed.
Bird and Griffen, JJ., agree. | [
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John Mauzy Pittman, Judge.
The appellant in this criminal case was a high school teacher. After reports that he had forced himself on some of his female students, he was charged with two counts of violation of a minor in the second degree and one count of violation of a minor in the first degree. After a jury trial, he was convicted of these offenses and sentenced to three years’ imprisonment. This appeal followed.
Appellant does not challenge the sufficiency of the evidence on appeal, but instead limits his arguments to two evidentiary matters. First, he asserts that the trial judge erred in allowing another student, D.C., to testify that appellant made sexual overtures to her at school that were very similar in their expression and circumstance to those described by the victims. Second, he asserts that the trial court erred in refusing to permit him to introduce a written, prior inconsistent statement by one of the victims. We find no error, and we affirm.
Three victims testified at trial. The first, M.M., testified that she was sixteen years old and had been in appellant’s Health class. At the field house, appellant would always tell her that she was pretty and that she should model. Sometimes he would ask her to stay after class, but she would not. One day in late October or early November, she found herself in the field house with appellant after the boys in her class had left. The lights were dim. Appellant came up behind her, leaned over her shoulder, ran his hands from her breasts to her stomach, and kissed her on the side of her face. When she tried to leave, appellant grabbed her arm and told her not to tell anyone because it would get them both in trouble.
The next victim, H.M., referred to three separate incidents regarding appellant. She testified that she was fifteen years old and had been in appellant’s Health class. Every time she looked up in class, she saw that appellant was staring at her. Appellant told her she was gorgeous as she was leaving the classroom or walking down the hall. The first incident occurred one day when appellant told H.M. that he needed to see her after class. She remained at her desk when her classmates left the room. Appellant turned out the lights and shut the door. H.M. was uncomfortable and walked behind appellant’s desk. Appellant approached her from behind and put his hand on her lower back. He told her that she should leave or they would both get in trouble. The second incident occurred on November 18. The fights went out in the school building during a storm and everyone was told to go outside. H.M. sat near the front of the classroom and was the last to leave. As she neared the doorway, appellant moved in front of her. She grabbed the shirt of the student in front of her as she left the room to avoid being cornered by appellant. The third incident occurred in the field house in late November or December. Appellant asked the class to help him put away football equipment at the field house. H.M. went to the field house and found herself alone in the equipment room with appellant. As she bent over to pick up a football helmet, appellant approached her from behind, placed his chest against her back, rubbed her arms, and kissed her. H.M. was frightened and left the room.
The third victim, K.P., also referred to three incidents regarding appellant. She testified that she was sixteen years old and that appellant had been one of the coaches at her school. The first incident occurred during the storm on November 18. K.P. had been in another teacher’s Biology class when the lights went out at school. The Biology class was dismissed. While K.P. was standing alone at the end of the hallway looking outside, appellant came up behind her, grabbed her waist, rubbed her side near her breast, and kissed her on the corner of the mouth. Appellant told her that she had better leave or they would both get in trouble, and that she should not tell anyone what happened. K.P. left, upset and crying. The second incident occurred in December when K.P. went to the field house to get a study guide from her biology teacher. After she left her teacher’s office and was entering the gym, appellant approached her, grabbed her by the waist, backed her up against the wall, held both her hands over her head with his left hand, stuck his right hand down her pants, and penetrated her vagina with his finger. He again told her that she had better leave or they would both be in trouble, and that he could lose his job over the incident. The third incident occurred in January. K.P. had left a schoolbook in appellant’s classroom. When she came to retrieve it, appellant grabbed her arm, rubbed her side and around her breasts, and told her that she had better leave.
K.P. felt frightened and ashamed, and did not tell anyone about the incidents until February 14, when two school officials, Mr. LaFargue and Ms. Adams, came to K.P.’s house and talked with her mother about rumored incidents at school. K.P. told her mother about the first and third incidents, but did not tell her about the second incident. It was arranged for the victims, their mothers, and school officials to meet at the police station. K.P. testified that she gave a written statement mentioning the first and third incidents, but omitting the second one. The statement specified that those were the only times appellant had molested her. K.P. further testified that she did not reveal the second incident in her statement because she did not feel that she could trust Mr. LaFargue and Ms. Adams. However, K.P. stated that, between February 15 and March 13, she talked frequently about the incidents involving appellant with another school official, Ms. Mitzi, and that on March 13 she told Ms. Mitzi about the second incident because she felt that she could trust her.
The State also introduced the testimony of another female student, D.C. She stated that she was eighteen years old and that she had been in appellant’s Health class the previous year. She testified that, in the autumn, she noticed that appellant had begun to stare at her, and that appellant began telling her that she was' attractive and had a nice body. She stated that appellant commented in Gym class about her breasts jumping out of her shirt, and that, while she was grading papers in appellant’s class one day, he rubbed her leg “a little too high” and told her she was doing a good job. Appellant was not charged with any offenses relating to his conduct toward D.C.
Appellant first contends that the trial judge erred in allowing D.C. to testify about appellant’s conduct toward her because it was not relevant to the offenses with which he was charged. We do not agree. Arkansas Rule of Evidence 404(b) prohibits evidence of other crimes, wrongs, or acts to prove the character of a person and to show that he operated in conformity therewith, but permits such evidence to be admitted for other purposes, including proof of motive, intent, preparation, or plan. The testimony of D.C. showed plan and modus operandi by demonstrating that appellant had gone through a similar sequence with all of the girls ■ — ■ involving compliments of a sexual nature, staring at them, attempting to get them alone —■ that preceded the actual assaults. This sort of antecedent conduct was held to be admissible in Hyatt v. State, 63 Ark. App. 114, 975 S.W.2d 433 (1998). Furthermore, it showed appellant’s depraved sexual instinct and proclivity for sexual predation upon young girls under his care. This goes to the heart of the pedophile exception to Rule 404(b), which permits evidence of a defendant’s sexual acts with other children when it is helpful in showing a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship, see Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994), and the pedophile exception is not limited to cases where all the victims are children in the same household — it has recently been declared to be applicable in classroom situations. Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002). The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Pickens v. State, 347 Ark. 904, 69 S.W.3d 10 (2002). There was no abuse of discretion in the present case.
Appellant next contends that the trial court erred in refusing to allow introduction of K.P.’s initial written statement, which did not mention the incident in which she was penetrated by appellant. We disagree. At trial, K.P. admitted that her testimony differed from her earlier written statement, and when a witness admits to having made a prior inconsistent statement, Ark. R. Evid. 613(b) does not allow introduction of extrinsic evidence of the prior statement to impeach the witness’s credibility. Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001).
Affirmed.
Hart and Gladwin, JJ., agree. | [
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John Mauzy Pittman, Judge.
This is an appeal from a DWT conviction after a bench trial. Appellant contends that the trial court erred in denying his motion to strike evidence of a breathalyzer test because the police failed to provide him with reasonable assistance in obtaining an additional test. We find no error, and we affirm.
Arkansas Code Annotated § 5-65-204(e) (Supp. 2001) establishes the right of a person tested for alcohol content at the direction of a law enforcement officer to have an additional test performed as follows:
(e)(1) The person tested may have a physician or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete chemical test in addition to any test administered at the direction of a law enforcement officer.
(2) The law enforcement officer shall advise the person in writing of this right and that if the person chooses to have an additional test and the person is found not guilty, the arresting law enforcement agency will reimburse the person for the cost of the additional test.
(3) The refusal or failure of a law enforcement officer to advise a person of this right and to permit and assist the person to obtain a test shall preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.
When a defendant moves to exclude admission of a test pursuant to § 5-65-204(e)(3), the State bears the burden of proving by a preponderance of the evidence that the defendant was advised of his right to have an additional test performed and that he was assisted in obtaining a test. See Kay v. State, 46 Ark. App. 82, 877 S.W.2d 957 (1994). Substantial compliance with the statutory provision about the advice that must be given is all that is required, Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985), and the officer must provide only such assistance in obtaining an additional test as is reasonable under the circumstances presented. Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985); Fiegel v. City of Cabot, 27 Ark. App. 146, 767 S.W.2d 539 (1989). • Whether the assistance provided was reasonable under the circumstances is ordinarily a fact question for the trial court to decide. Fiegel v. City of Cabot, supra. On appeal, the question to be decided is whether the trial court’s finding of reasonable assistance to obtain another test is clearly against the preponderance of the evidence. Kay v. State, supra.
The record in the present case reflects that appellant was driving his automobile on Interstate 630 when Trooper Bain observed appellant weaving and speeding. Trooper Bain stopped appellant and noticed that appellant’s face was flushed, his eyes were bloodshot, and he smelled of alcohol. After conducting and observing the results of three field-sobriety tests, Trooper Bain arrested appellant and transported him to the Pulaski County Jail for a BAC Datamaster test. Prior to the test, appellant was advised of his right under Ark. Code Ann. § 5~65-204(e) to have an independent chemical test performed at his own expense.
Trooper Robinson testified that he made contact with appellant at the Pulaski County Jail when Trooper Bain asked him to administer a BAC Datamaster test to appellant. Trooper Robinson further testified that, although appellant agreed to submit to the test, he did not take the test at first. After appellant had been observed for the requisite twenty-minute period and Trooper Robinson was preparing the machine to administer the test, appellant put a quarter in his mouth, requiring another twenty-minute period of observation before a valid test could be performed. After the second period of observation, Trooper Robinson again attempted to administer the test, but appellant would not blow into the machine as directed, and the test results were incomplete. After the second attempt, Trooper Robinson again explained the procedure to appellant and reloaded the machine. On the third attempt, appellant did comply with instructions and a valid result of .106 was obtained at 1:19 a.m.
Appellant requested an additional test. In response, Trooper Bain gave appellant a telephone book and told him that local hospitals could provide the test. Appellant was released, and he telephoned his sister at 2:00 a.m. Appellant’s sister picked him up at a nearby McDonald’s at 2:15 a.m. There is no evidence that appellant requested any additional assistance in obtaining an independent test, or that he had such a test performed on his release.
We think that the trial court could properly find, on this record, that appellant was at least passively uncooperative with regard to the BAC Datamaster test. He delayed the test substantially by putting a quarter in his mouth on the first try, requiring another twenty-minute waiting period, and then made inadequate efforts on the second test. A valid result was not obtained until the third attempt. In our view, this evidence of appellant’s uncooperative passivity is pertinent to the question of whether the police provided him with reasonable assistance in obtaining an additional test. Although appellant was informed that local hospitals could perform an additional test and was provided with a telephone book, there is no evidence that appellant requested any other assistance. Appellant makes much of the fact that he was not offered transportation to obtain an additional test, but we think this fact is of no significance in the absence of any evidence that appellant had selected a testing facility and requested to be transported there. Appellant’s behavior is in contrast to that of the appellant in Kay v. State, supra, who asked where he could obtain an additional test and was involved in attempting to arrange for an acceptable form of payment at that facility. Here, appellant did nothing except state that he wanted an additional test, asking no questions, making no effort to take advantage of the resources with which he had been provided, and requesting no additional resources. Given the evidence of appellant’s other passively uncooperative behavior and his failure to utilize the resources with which he was provided or request any additional help, we think that the trial judge’s finding that the assistance offered was reasonable was not clearly against the preponderance of the evidence.
Affirmed.
Robbins and Vaught, JJ., agree. | [
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Andree Layton Roaf, Judge.
Appellant Lamar Neill’s home was damaged by a fire, and he filed a claim with his homeowners’ insurance company, appellee Nationwide Mutual Fire Insurance Company. After finding out that Neill had previous fire losses that were not disclosed in his application, Nationwide denied Neill’s claim and filed an action for declaratory relief, seeking to void the policy. Neill counterclaimed for breach of contract and bad faith. The trial court granted summary judgment in favor of Nationwide based on the misrepresentation in the application and voided the policy. On appeal, Neill argues that the trial court erred in granting summary judgment to Nationwide and voiding the policy. We reverse and remand.
On November 18, 1993, Neill met with a Nationwide agent, Leon Anderson, to apply for homeowners’ insurance for a mobile home. According to Neill, Anderson asked him several questions and typed in Neill’s answers on the computer, such as whether he had ever been sued and whether he had ever filed bankruptcy. Neill testified in his deposition that Anderson did not ask him about any previous fire losses, or if he did ask him, Neill stated that he must not have understood the question because he would not have replied that he had no prior losses. After Anderson finished asking the questions, the application for insurance was printed out, and Neill testified that he signed it without reading it, as he assumed that it contained the answers he had given to Anderson. Above his signature, the application contained a clause that Neill declared that the facts in the application were true and that he was requesting the company to issue the policy in reliance thereon. It is undisputed that on that application, under a section titled “Past Losses,” the answer “None” was typed.
On April 16, 1997, Neill’s home was severely damaged by fire, and he made a claim for insurance benefits with Nationwide. In the course of its investigation, Nationwide learned from Neill that he had had three previous fire losses. Nationwide denied Neill’s claim, stating that he made a material misrepresentation in his application, and filed a complaint for declaratory judgment, seeking to have the policy declared void ab initio. The trial court granted summary judgment to Nationwide based on the misrepresentation, and Neill appeals from that ruling.
On appeal, Neill argues that the trial court committed reversible error in granting Nationwide’s motion for summary judgment, thereby voiding the policy. When reviewing orders of summary judgment, the appellate court need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Chambers v. Stern, 347 Ark. 395, 64 S.W.3d 737 (2002). If, after reviewing undisputed facts, reasonable men might reach different conclusions from those facts, then summary judgment should be denied. Plant v. Wilbur, 345 Ark. 487, 47 S.W.3d 889 (2000).
It is a well-settled proposition that where the facts have been truthfully stated by an insured to the soliciting agent, but by fraud, negligence, or mistake, the facts are misstated in the application to the insurer, the insurer cannot rely on the misstatements in avoidance of liability, if the agent was acting within his real or apparent authority, and there is no fraud or collusion on the part of the insured. Interstate Fire Ins. Co. of Chattanooga, Tenn. v. Ingram, 256 Ark. 986, 511 S.W.2d 471 (1974); General Agents Ins. Co. v. St. Paul Ins. Co., 22 Ark. App. 46, 732 S.W.2d 868 (1987); Time Ins. Co. v. Graves, 21 Ark. App. 273, 734 S.W.2d 213 (1987). However, in Carmichael v. Nationwide Life Ins. Co., 305 Ark. 549, 810 S.W.2d 39 (1991), the court also stated that a person is bound under the law to know the contents of the papers he signs and that he cannot excuse himself by saying that he did not know what the papers contained.
In Graves, supra, an insurance agent, who knew the Graveses and knew that Mrs. Graves had been operated on for cancer, told the insureds that he could provide her with coverage for her preexisting condition. The Graveses testified that the agent filled out the application and that they truthfully answered each question asked by the agent, but that they did not read the application before they signed it. One question asked on the application, whether the insured had previously been treated for cancer, was left unanswered. Subsequently, an amendment to the application was received by the agent containing the unanswered question. The amendment already had the word “no” typed on it, and the agent testified that he got Mr. Graves to sign it. The amendment stated that Mr. Graves hereby amends “my application.” Mr. Graves testified that the amendment contained his signature, but that he did not remember signing it. The court stated that the jury could have found that his signature did not constitute an untruthful statement as to Mrs. Graves’s pre-existing condition. Id.
In Ingram, supra, the agent asked Ingram questions and filled out the application, which Ingram signed. Although there were several questions answered incorrectly, Ingram testified that he answered each question that the agent asked correctly, so that the agent must have inaccurately recorded his answers. The court stated that Interstate was not entided to a directed verdict under the evidence in that case and that there was no error in instructing the jury that where the facts were truthfully stated to an agent, but by fraud, negligence, or mistake, the agent misstated the information, the company cannot avoid liability if the agent had authority and there is no fraud or collusion on the part of the insured. Id.
In Carmichael, supra, the insured’s beneficiary appealed from an order of summary judgment in favor of the insurer. The evidence showed that the agent asked questions and recorded Mr. Carmichael’s answers on the application. Mr. Carmichael then signed the application. Based on misrepresentations in the policy that Mr. Carmichael did not suffer from diabetes, the insurer refused to pay the benefits under the policy. The appellant, Mrs. Carmichael, argued that the agent must have failed to ask her husband the question or that the agent must have inaccurately recorded his answer, because her husband had suffered from diabetes for many years and would not have responded negatively to the question. However, the court stated that there was no evidence to sustain Mrs. Carmichael’s allegations and that the only person with personal knowledge of what transpired was the agent, because Mr. Carmichael had died. Id. The agent, in his affidavit, averred that he had asked every question on the application and that he had correctly recorded Mr. Carmichael’s answers. The court noted that Mr. Carmichael had signed a certification that the information in the application was true and stated that this was at least probative evidence of his misrepresentation. Id. Because Mrs. Carmichael offered no evidence to rebut any of the assertions made by the insurer, the court found that summary judgment was appropriate. Id.
Nationwide relies heavily on Carmichael, supra, in support of its argument that summary judgment was properly granted to them in this case. However, in Carmichael, the insured was not alive to testify as to the circumstances surrounding the application process, the agent testified that he had asked every question and correctly recorded the insured’s answers, and the appellant offered no other evidence to rebut the insurer’s assertion that the insured misrepresented a material fact in the application. As noted by the court, the appellant “would have the jury consider the credibility of a witness whose testimony is uncontroverted.” 305 Ark. at 553, 810 S.W.2d at 42. Here, Neill is able to testify and has testified that he was not asked about prior losses by the agent. In contrast, Nationwide has not presented evidence by its agent that the question was asked and answered incorrectly by Neill.
Pursuant to the foregoing authorities, we find that there is a fact question as to whether Nationwide asked and correctly recorded Neill’s answer about previous losses. The fact that Neill signed the certification that the information was true is merely probative evidence of his misrepresentation and not dispositive of the case. Thus, summary judgment in this instance was not appropriate, and we reverse and remand.
Reversed and remanded.
Pittman, Robbins, and Crabtree, JJ., agree.
Gladwin and Neal, JJ., dissent. | [
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John F. Stroud, Jr., Chief Judge.
Robert Boxley has appealed from a divorce decree entered by the Poinsett County Circuit Court in July 2001. He challenges the judge’s allocation of the marital debts and his refusal to confirm a commissioner’s sale of a portion of the marital personal property. We affirm the judge’s decision.
Robert married appellee, Kathy Boxley, in November 1986. Their daughter, Jennifer Paige, was born in December 1989. During most of the marriage, Kathy did not work outside of the home, and Robert supported the family by working as a farm and gin assistant manager. Robert has a college degree. Kathy does not have a high school diploma or a GED. At the time of trial, Robert’s bi-weekly salary was $1,615.38, with a net take-home pay of $1,141.79. At the trial, Kathy testified that she cleaned one house per week, earning $35, and that she was looking for full-time employment.
The parties’ only marital debts were owed to Robert’s mother, Ruby Jean Boxley. Between 1991 and 1994, Ruby loaned them $17,000 to remodel their house. In return, Kathy and Robert signed a handwritten, notarized document that stated: “We Robert and Lisa Kathleen Boxley owe Ruby Jean Boxley $17,000 on the property at 204 Woody. This is a promissory note to be paid at the time this house is sold. . . .” Ruby later paid their mortgagee $23,603 to release their mortgage. She also loaned them $24,486 for additional remodeling on their house and an additional $16,000 for a truck. Robert and Kathy did not sign any documents evidencing these debts. Robert and his mother both testified that these payments were loans that both parties had agreed to repay, not gifts. According to Ruby, the parties owed her $64,789 at the time of trial. Kathy admitted at trial that she had agreed to pay the $17,000 but denied having agreed to repay the other amounts.
The judge issued a letter opinion on June 6, 2001, which he supplemented on June 14, 2001. He found that Robert was entitled to a divorce on the grounds of general indignities and gave the parties joint custody of their daughter with Kathy to have primary physical custody of her. He ordered Robert to pay $100 per week child support and to provide health insurance for the child.
The judge ordered most of the parties’ marital personal property to be sold at public auction and the proceeds to be split equally. He awarded Kathy a one-half interest in that portion of Robert’s retirement account that had accrued during the marriage. The judge also permitted Robert to keep his non-marital property, which primarily consisted of a large amount of furniture. The judge directed that the parties’ real property be converted to a tenancy in common and awarded Kathy possession of the house so long as she has primary physical custody of the child. He directed that her right to possession will terminate upon the child’s reaching majority or graduating from high school, whichever is later; Kathy’s remarriage; Kathy’s permitting a non-relative to live there; or Kathy’s abandonment of the house. He directed Kathy to be responsible for ordinary maintenance and that the parties equally bear the cost of substantial repairs. He ordered Robert to pay for insurance and taxes on the house and to receive credit for one-half of such payments and for one-half of the monthly rental value of the house when it is sold.
In his June 6, 2001, letter opinion, the judge stated:
8. Marital debts: At issue are alleged marital debts which [appellant] contends are owed by both parties to Ruby Jean Boxley for monies advanced by Ruby Jean Boxley towards the pay-off of the marital home, for improvements to the marital home, and for the purchase/pay-off of the aforesaid marital vehicle. In this connection, the Court finds/concludes that on August 1, 1994, both parties executed an evidence of indebtedness to Ruby Jean Boxley for the sum of $17,000.00, which the Court determines to be a lien (as between the parties) on the aforesaid marital residence in the sum of $17,000.00, which lien is to be satisfied/paid at such time as the marital residence is sold prior to dividing the net proceeds of such marital residence sale between the parties. As relates to remaining monies advanced by Ruby Jean Boxley to the parties, the Court concludes that the parties are indebted to Ruby Jean Boxley as an unsecured creditor in the sum of $22,989.50 each. ($82,089.00 total advances less $17,000.00 secured to be paid when house is sold equals $65,089.00 less $19,110.00 payments made equals $45,979.00 divided by two equals $22,989.50 each).
In his June 14, 2001, letter opinion, the judge added:
6. REQUEST ON BEHALF OF RUBY JEAN BOXLEY FOR JUDGMENT: The Court declines to render an advisory Opinion as relates to the claim of Ruby Jean Boxley against either of the parties of this case. Ruby Jean Boxley is not a party to this case, has not intervened and this Court will not at this time, in this case, permit an intervention or render judgment in favor of Ruby Jean Boxley except as relates to the establishment of a lien on $17,000.00 of the proceeds of the ultimate sale of the marital home which has been previously addressed.
A commissioner’s sale of thirteen items of marital personal property, including the parties’ truck, was held on September 10, 2001. At that sale, Ruby bid a total of $8,450 for twelve of the items, including the truck. Her bid read as follows: “As payment of the bid price, she releases Robert Boxley and Kathy Boxley from paying her the sum bid, that to be deducted from the sums Robert Boxley and Kathy S. Boxley owe her, as adjudicated on the Court’s decree ofMay 1, 2001.” On September 20, 2001, the judge refused to confirm the sale, stating: “The Court does not consider the bid of Ruby Jean Boxley to conform to Arkansas law concerning purchasing property at public sale. The Court would not confirm the sale without the consent and approval of [appellee].”
Marital Debts
Appellant does not challenge any of the judge’s findings of fact, including his finding that, in addition to the $17,000 represented by the promissory note, the parties owe Ruby $45,979. In appellant’s first point on appeal, he argues that the judge erred in dividing this debt equally between the parties because, as the only party with an income, he will surely be required to pay the entire debt, which appellant asserts is inequitable.
Although the division of marital debt is not addressed in Arkansas Code Annotated § 9-12-315 (Repl. 2002), the judge has authority to consider the allocation of debt in a divorce case. Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993); Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998). In fact, this court has stated that an allocation of the parties’ debt is an essential item to be resolved in a divorce dispute. Ellis v. Ellis, 75 Ark. App. 173, 57 S.W.3d 220 (2001); Warren v. Warren, 33 Ark. App. 63, 800 S.W.2d 730 (1990). A judge’s decision to allocate debt in a particular manner is a question of fact and will not be reversed on appeal unless clearly erroneous. Anderson v. Anderson, supra.
Further, the allocation of marital debt must be considered in the context of the distribution of all of the parties’ property. See Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982). Arkansas Code Annotated section 9-12-315 does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). The statute vests the judge with a measure of flexibility and broad powers in apportioning property, nonmarital as well as marital, in order to achieve an equitable distribution; the critical inquiry is how the total assets are divided. Id. The overriding purpose of the property division statute is to enable the court to make a division that is fair and equitable under the circumstances. Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986); Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 443 (1990). The judge’s findings as to the circumstances warranting the property division will not be reversed unless they are clearly erroneous. Dunavant v. Dunavant, 66 Ark. App. 1, 986 S.W.2d 880 (1999). We will not substitute our judgment on appeal as to what exact interest each party should have; we will decide only whether the order is clearly wrong. Pinkston v. Pinkston, 278 Ark. 233, 644 S.W.2d 930 (1983).
A judge’s determination that debts should be allocated between the parties in a divorce case on the basis of their relative ability to pay is not a decision that is clearly erroneous. Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510 (1983); Ellis v. Ellis, supra; Anderson v. Anderson, supra. Given the disparity between Kathy’s and Robert’s earning powers, the allocation of debt in this case was not clearly erroneous. We affirm the judge’s decision to hold the parties equally responsible for the debt to Ruby.
Appellant also contends that the judge erred in finding each party separately liable for only one-half of the debt to Ruby because he had no authority to determine the validity of a debt to a third party who is not a party to the lawsuit. Appellant is correct that a judge has no authority to decide the validity of an obligation to a third party who is not a party to the divorce. Arnold v. Spears, 343 Ark. 517, 36 S.W.3d 346 (2001); Grace v. Grace, 326 Ark. 312, 930 S.W.2d 362 (1996); see also Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989). Third parties may be brought into, or intervene in, divorce actions for the purpose of clearing or determining the rights of the spouses in specific properties. Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981). As the judge noted, Ruby did not intervene in this action. Therefore, the judge had authority only to determine Robert’s and Kathy’s obligations, as to each other, in regard to this debt. We stress, however, that the judge did have the authority to allocate responsibility for this debt as between the parties.
Appellant also argues that this court should modify the decree to make all of the debt to Ruby, instead of only the $17,000, payable out of the proceeds of the sale of the house. We disagree. Although she could have required that she be granted a lien on the house simultaneously with making the loans or she could have intervened in this action to protect her interests, Ruby did neither. Additionally, Robert would have a claim against Kathy for any amount over his one-half share of that debt that he might be required to pay to Ruby and could seek the judge’s assistance in making Kathy meet her obligations under the decree.
The Commissioner’s Sale
In his second point, appellant argues that the judge erred in refusing to confirm the commissioner’s sale at which Ruby sought to purchase twelve items by granting the parties a partial release of her debt “which the court adjudicated that the parties owed the creditor.” Appellant also contends that it would be a waste of money and judicial effort to require Ruby to adjudicate this debt in a separate lawsuit. Arkansas Code Annotated section 16-66-413(a) (1987) provides that bids at commissioners’ sales may be made on three months’ credit, upon the purchaser’s giving of “bond and good security.” In subsection (b), that statute provides for the making of such bids in cash. It is clear, therefore, that Ruby, as a creditor seeking to bid with a credit against her unadjudicated claim, did not meet either provision of this statute. We affirm the judge’s refusal to confirm the commissioner’s sale.
Affirmed.
Jennings and Griffen, JJ., agree. | [
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John Mauzy Pittman, Judge. The
appellee in this tort case was driving an automobile that collided with two eight-year-old boys riding a bicycle. The boys were injured, and they and their parents sued appellee for negligence. At the close of trial, appellee moved for a directed verdict. The trial court granted the motion and dismissed the case. This appeal followed.
For reversal, appellants contend that the trial court erred in directing a verdict in favor of appellee. We agree, and we reverse and remand.
In reviewing an order granting a motion for directed verdict, we view the evidence in the light most favorable to the party against whom the verdict was directed. Allstate Insurance Company v. Voyles, 76 Ark. App. 334, 65 S.W.3d 457 (2002). If any substantial evidence exists that tends to establish an issue in favor of that party, then a jury question is presented and the directed verdict should be reversed. Id.
Viewing the evidence, as we must, in the light most favorable to the appellants, the record shows that appellee was driving her car on a residential street, on a school day, at approximately 4:00 p.m. Appellee knew that this was a residential neighborhood and that it was important to be cautious there because people frequently walk in the street. She testified that she saw two little boys riding a bicycle on the right side of the road. They were approximately two feet from the curb. Appellee was driving between fifteen and twenty miles per hour when she first saw the boys. There were no vehicles or anything else in the street that obstructed her view. Appellee applied her brakes but did not take evasive action. Approximately five seconds after first seeing the boys, she struck them with her vehicle. The boys were injured and taken away in an ambulance.
We think that the testimony recounted above constitutes substantial evidence of negligence. A driver is bound to be constantly vigilant for persons along a highway and exercise reasonable care to avoid injuring them. Thomas v. Newman, 262 Ark. 42, 553 S.W.2d 459 (1977). A motorist cannot rely upon the assumption that a child pedestrian will act with the same degree of care, caution, and circumspection or will remain in a place of safety or obey the rules of the road to the same extent he could if an adult were involved. Id. Significantly, although there was evidence that appellee had up to five seconds to react to the presence of the little boys and there were no other vehicles in the street, there was no indication that she either sounded her horn or took evasive action. See id.; see also Collett v. Loews, 203 Ark. 756, 158 S.W.2d 658 (1942). Furthermore, although appellee makes much of the fact that the boys did not testify at trial, the injured party is presumed to be free from negligence until the contrary is made to appear. Thomas v. Newman, supra.
The evidence introduced by the appellants was substantial evidence, and whether it was true or not was a question for the determination of the jury, not the court. Collett v. Loews, supra. We hold that the trial court erred in directing a verdict in favor of appellee, and we reverse and remand.
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Robbins and Crabtree, JJ., agree. | [
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John B. Robbins, Judge.
Appellant Sandra Frigon and appellee Gary Frigon were divorced by order of the Benton County Circuit Court filed on September 18, 2001. Appellant challenges the trial judge’s finding that a Unum Provident Disability Income Protection Policy, covering appellee effective during the 2001 calendar year, had no cash value and thus was not divisible between the parties as marital property. We reverse and remand.
We review domestic-relations decisions de novo on the record. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002). Although review is de novo, we will not reverse a finding of fact by the trial judge unless it is clearly erroneous. Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000). 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. Nielsen, supra. While the trial court’s findings of fact shall not be set aside unless clearly erroneous, conclusions of law are not given the same deference. Vowell v. Fairfield Bay Community Club, Inc., 346 Ark. 270, 58 S.W.3d 324 (2001). Accordingly, if the trial judge erroneously applies the law and an appellant suffers prejudice, the erroneous ruling should be reversed. Id.
During the marriage, the parties acquired a disability income protection policy covering appellee to protect against loss of his income if he became unable to perform the substantial or material duties of his occupation. The policy became effective on December 1, 1992, and was renewed annually; the premiums were paid semiannually. Therefore, the policy was effective year-to-year from December 1 through the following December 1. Appellee, a physician, made a claim in 1998 and was granted monthly benefits in the approximate sum of $12,000 per month during a four-month term of incapacity to work. At the time of the divorce hearing in July 2001, the policy was in effect for that year through December 1, 2001. The semiannual premiums had been paid with marital funds. However, there was no evidence that a disability claim was pending at the time of the final hearing in July 2001. Appellant argued to the circuit judge that she should be awarded property rights in the policy for 2001 should appellee become disabled during that year. Appellant also asked that the judge set child support and alimony on any disability income if appellee should become disabled under the policy.
In the order on appeal, filed of record on September 18, 2001, the trial judge ordered as follows:
No cash value is found to exist in connection with the disability policy, so the .Court finds nothing to divide. However, should the policy be activated, it may come into play for support purposes and not for a division of property, and at that time, a determination can be made as to the amount of income.
Appellant argues on appeal that even though monthly disability income benefits were a contingent and unliquidated asset, it was a marital asset nonetheless and subject to division. We agree.
Appellant cites to Bunt v. Bunt, 294 Ark. 507, 744 S.W.2d 718 (1988), as support for her position. In that case, the supreme court held that a personal-injury claim, which had accrued to the husband but which had not been made the subject of a complaint or offer of settlement, was “marital property.” To hold that a personal-injury claim is marital property only to the extent that it has become liquidated would place the claimant in the position of manipulating the claim so as to liquidate it after divorce and thus have the power to determine whether it is included in marital property. See id. See also Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986) (holding that a personal-injury judgment based on a structured settlement, part of which had been received and part of which was to be received in the future, was marital property).
We agree that this asset, a contract right in the form of a disability income protection policy, was undoubtedly a marital asset. That being the case, appellant was entitled to one-half of the value of any claim arising under the policy during the remaining term of the policy, i.e., through December 1, 2001. Alternatively, if the trial court awarded the policy wholly to appellee, the appellant was entitled to be reimbursed for one-half of the prepaid premium, i.e., for the seventy-four-day period from the date the divorce was entered, September 18, 2001, through December 1, 2001. In our view, justice is better served by a remand so that the circuit judge can determine which method accomplishes equity in this case. See Reaves v. Reaves, 63 Ark. App. 187, 975 S.W.2d 882 (1998).
Reversed and remanded.
Pittman and Hart, JJ., agree.
Appellant’s abstract and addendum are excessive as they encompass more testimony, pleadings, and exhibits than are necessary to an understanding of the question presented to us for resolution. See Ark. R. Sup. Ct. 4-2(a)(5) and (8). We decline in this instance to order appellant’s counsel to file a proper abstract, brief, and addendum, see Ark. R. Sup. Ct. 4-2(b)(3), but we caution counsel to adhere to the briefing guidelines in the future.
The Bunt case applied the law as it existed prior to the passage in 1987 of Act 676, which changed the definition of marital property to add certain exceptions for particular benefits. This Act was codified at Ark. Code Ann. § 9-12-315(b), and it excludes from the definition of marital property those benefits received or to be received from workers’ compensation claims, personal injury claims, or social security claims as are given for any degree of permanent disability or future medical expenses. Clearly, the disability income benefits at issue in the present appeal do not fall within that exception. | [
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Sam Bird, Judge.
A Washington County Circuit Court jury found appellant, Jose Luis Vergara-Soto, guilty of the offenses of possession of methamphetamine with intent to deliver and simultaneous possession of drugs and a firearm. He was sentenced to the Arkansas Department of Correction for 180 months for each offense, with the sentences to run concurrently. Vergara-Soto’s sole point on appeal is that the trial court erred in denying his motion for directed verdict on the charge of simultaneous possession of drugs and firearms because there was insufficient evidence to show that the handgun was “readily accessible for use.” We affirm.
Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Harris v. State, 73 Ark. App. 185, 44 S.W.3d 347 (2001). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001). Substantial evidence, whether direct or circumstantial, is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another, without resort to speculation or conjecture. Id. Only evidence supporting the verdict is considered. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000).
The evidence established that while Fayetteville police officers were conducting a search of another residence, Vergara-Soto was asked by the officers if he would consent to a search of his residence, and Vergara-Soto agreed to the search. Officer Mike Henderson testified that after the search of the other residence was concluded, he and the other officers followed Vergara-Soto three or four miles to his residence that was located in a trailer park. Henderson testified that when they arrived at the trailer park, Vergara-Soto gave him the keys to his trailer and that he and the other officers entered Vergara-Soto’s trailer and began to search. Vergara-Soto remained outside the trailer while the officers conducted their search. Craig McKee, a detective with the Fourth Judicial District Drug Task Force, testified that he searched through a pile of clothes in a bedroom of Vergara-Soto’s trailer and located a pair of jeans that had a bulge in one of the legs. When he picked up the jeans, a white sock that contained methamphetamine and a nine millimeter handgun fell to the floor.
Arkansas Code Annotated section 5-74-106(a)(l) (Repl. 1997) provides that no person shall unlawfully commit a felony violation of section 5-64-401 (Repl. 1997) (manufacturing, delivering, or possessing with intent to manufacture or deliver a con trolled substance) or unlawfully attempt, solicit, or conspire to commit a felony violation of section 5-64-401 while in possession of a firearm. Section 5-74-106(d) provides that it is a defense to the crime described in section 5-74-106(a) “that the defendant was in his home and the firearm was not readily accessible for use.”
In order to obtain a conviction under section 5-74-106(a)(1), the State must prove two elements: (1) that the defendant possessed a controlled substance and a firearm, and (2) that a connection existed between the firearm and the controlled substance. Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998); see also Manning v. State, 330 Ark. 699, 956 S.W.2d 184 (1997) (holding that some link between the firearm and drugs is required; mere possession of a firearm is not enough).
Vergara-Soto does not challenge the sufficiency of the evidence to prove that the methamphetamine and handgun were found together in his trailer. Nor does he contend that there was no connection between the methamphetamine and the handgun or that the handgun was not susceptible of use as a weapon. Rather, he argues that the evidence proved the existence of the defense provided by section 5-74-106(d), that he “was in his home and the firearm was not readily accessible for use.” We do not agree. In order to avail himself of this defense, Vergara-Soto had to establish, first, that he “was in his home” and, second, that “the firearm was not readily accessible for use.” Ark. Code Ann. § 5-74-106(d). Both of these elements must be established in order for Vergara-Soto to prevail on the defense. However, by his very argument, Vergara-Soto admits that he was not in his home; therefore, he has not fulfilled the first requirement in proving the defense.
The concurring opinion does not support our interpretation of the statutory defense provided in Ark. Code Ann. § 5-74-106(d), but, instead, interprets the statute’s first requirement, that the defendant be “in his home,” to mean that the defendant need not be in his home to avail himself of the defense. The concurring opinion suggests that the requirement that the defendant be “in his home” does not mean what it says, but that it actually means that the “possession” at issue, whether actual or constructive, must occur in the defendant’s home, whether the defendant is in his home or not. We find no basis in the language of the statute to support such an interpretation.
While we recognize that criminal statutes are strictly construed and any doubts are resolved in favor of the defendant, we are first and foremost concerned with ascertaining the intent of the General Assembly. Sansevero v. State, 345 Ark. 307, 45 S.W.3d 840 (2001). In statutory interpretation matters, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Langley v. State, 343 Ark. 324, 34 S.W.3d 364 (2001). In adopting section 5-74-106(d), the General Assembly obviously intended to create a very narrow exception to the crime of simultaneous possession of drugs and firearms where “the defendant was in his home and the firearm was not readily accessible for use.” We see nothing in this clear and unambiguous language that permits an interpretation other than, first, that the defendant must be in his home and, second, that the firearm is not readily accessible for use in order for a defendant to avail himself of the defense.
The concurring opinion apparently prefers to affirm this case on the basis of Vergara-Soto’s failure to establish the second element of the statutory defense, that the firearm was not readily accessible for use, citing Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000), in which the supreme court also took that ápproach. However, in Gilbert, while there was a dispute as to whether Gilbert was in his home or whether he actually resided elsewhere, there was no dispute that Gilbert was in the house where the drugs and firearm were located. Thus, the supreme court noted that, even if he had proved that he was in his home, Gilbert had failed to prove that the firearm (that was in an open case in the living room) was inaccessible for use; thus, he could not avail himself of the defense.
Gilbert is clearly distinguishable from the case at bar. Here, it is not disputed that the handgun was found in VergaraSoto’s home and it is not disputed that Vergara-Soto was not in his home when the handgun was discovered. Under these circum stances, clearly Vergara-Soto has failed to establish that he was “in his home,” as the statutory defense requires.
On the other hand, to hold, as the concurring opinion apparently would, that constructive possession of a firearm by one who is not present in his home when a firearm is discovered is equivalent to the firearm’s being “readily accessible for use,” is to eliminate the availability of the statutory defense to anyone, whether or not they are present in their home where drugs and firearms are discovered. Since constructive possession can be implied when contraband is found in a place that is immediately and exclusively accessible to the defendant and subject to his control, Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001), under the analysis employed by the concurring opinion, the known presence of illegal drugs and firearms in a defendant’s home would preclude the defendant from relying upon the statutory defense afforded by section 5-74-106(d), regardless of whether the firearm was readily accessible for use, thereby rendering the statutory defense a nullity.
However, we hold that where the evidence was undisputed that the methamphetamine and handgun were found together in a sock in Vergara-Soto’s trailer, and that Vergara-Soto was not in his home when the methamphetamine and handgun were discovered, the trial court did not err in denying VergaraSoto’s motion for directed verdict.
Affirmed.
Vaüght, J., agrees.
Roaf, J., concurs.
The concurring opinion says that the statutory defense contained in Ark. Code Ann. § 5-74-106(d) requires proof that the defendant was “in his own home”; however, the statute does not contain the word “own.” | [
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Josephine Linker Hart, Judge.
Appellants appeal from an order of the Arkansas Workers’ Compensation Commission granting appellee temporary total disability benefits and permanent partial disability benefits. Appellants argue that there was not substantial evidence to establish that appellee (i) suffered a right shoulder injury arising out of and in the course of his employment; (ii) was entitled to temporary total disability benefits; and (iii) was entitled to permanent partial disability benefits associated with a 3% permanent impairment rating. We affirm.
On September 3, 1999, appellee, as an employee of appellant Wal-Mart, was restacking pallets of bicycles when a pallet fell, hitting appellee’s right shoulder and pinning him against another pallet. Appellee testified that he suffered extreme pain, but after being pulled out from underneath the bicycles, he worked for most of the day. The next day, his shoulder was sore, but he continued to work. He testified that following the accident he notified his supervisor.
Appellee further testified that he continued to work from September 1999, until he was excused from work, according to medical records, on February 7, 2000. Appellee stated that, following the accident, his pain worsened, and he suffered numbness in the mornings and could not lift his arm, and in January 2000, he went to see a company physician about his shoulder. The doctor referred him to another physician, Jay M. Lipke. Dr. Lipke performed surgery on appellee, according to medical records, on February 14, 2000, and released him to return to work for limited or light duty on April 24, 2000. Appellee acknowledged that, after the September accident, he continued to work and receive a salary from his other job as a minister, even though from February to April the associate pastors performed the “major parts” of his job. He also testified that the only previous injury to his right shoulder was a fall on ice that occurred seventeen or eighteen years earlier, and he had never had any pain or soreness in his right shoulder prior to September 3, 1999.
According to a letter dated January 25, 2000, Dr. Lipke noted that appellee had “a large cyst over the right AC joint and pain with forward elevation and abduction to 90 degrees,” with x-rays showing “some degenerative changes of the right AC joint and no other abnormalities.” The doctor aspirated the cyst and opined that “his symptoms are related to AC osteoarthritis” and possibly could have “underlying rotator cuff pathology.” An MR.I was performed on February 3, 2000, which revealed (i) a “[l]arge chronic full thickness tear of the rotator cuff. . . with atrophy of all muscles involving the rotator cuff”; (ii) a “[sjuperior subluxation of the humeral head such that it abuts the undersurface of the acromion”; and (iii) a “[hjypertropic changes of the AC joint with a[n] associated ganglion cyst superior to the AC joint.”
Dr. Lipke, in his notes of February 7, 2000, stated that appel-lee’s “MR.I reveals evidence of a large chronic rotator cuff tear with proximal migration of the humeral head,” as well as a cyst “that emanates from the AC joint.” The doctor opined that appellee “would benefit from surgical intervention” as an attempt to “restore rotator cuff function if at all possible.” He also indicated that during the surgery he would “excise the cyst” and “resect the distal clavicle.” Surgery was performed on February 14, 2000, and in the postoperative report, Dr. Lipke noted that appellee had a “chronic irreparable rotator cuff tear” and “acromi-oclavicular osteoarthritis with synovial cyst.”
Dr. Lipke subsequently determined that, within a reasonable degree of medical certainty, appellee had “60% [permanent partial impairment] to the upper extremity” with “30% [to the] body as a whole,” that the impairment was based on objective data, but that the work injury was not the “major cause” of appellee’s impairment. In a letter to appellee dated April 20, 2000, Dr. Lipke stated, “I don’t feel the work-related injury is the major cause of your impairment.” He concluded that “[bjased on the size and chronicity (long standing nature) of the tear, I think this is something that happened prior to the work[-]related injury.”
On May 12, 2000, in response to a letter from appellants’ attorney, Dr. Lipke stated that “[t]he 30% rating to the body as a whole is based on a 50% impairment to the right upper extremity as a whole.” He further concluded that “[t]he 50% impairment to the extremity as a whole is based on loss of strength and motion due to the chronic rotator cuff tear.” On June 6, 2000, in response to a letter from appellee’s attorney, Dr. Lipke stated that appellee’s problems began with the work-related injury and that this injury “aggravated a pre-existing problem with the right shoulder (chronic rotator cuff tear).” Dr. Lipke further stated that, prior to the surgery, he felt that the work-related injury was the entire cause of appellee’s shoulder problems. He noted, however, that at the time of the surgery, appellee had a chronic rotator cuff tear that predated the work-related injury. He further stated:
I feel the work[-] related injury was an aggravating factor, or the straw that broke the camel’s back and this has added to his underlying shoulder problem. With this in mind, I would say the work[-] related injury added 5% impairment to his shoulder. In other words, 45% of his impairment would be related to the preexisting injury and 5% could be assigned to the work [-[related injury.
On August 21, 2000, in response to a letter from appellants’ attorney, Dr. Lipke stated that of the 50% impairment, 10% was caused by the work-related injury and 90% by the pre-existing condition.
On appeal to the Commission from the administrative law judge’s award of benefits to appellee, the Commission concluded that appellee established by a preponderance of the evidence that his “right shoulder difficulties were aggravated by, and thus causally related to, his employment.” The Commission further concluded that because Dr. Lipke opined that the compensable injury accounted for 10% of appellee’s total impairment, “the compensa-ble injury is the major cause of 3% of claimant’s total permanent impairment to the body as a whole,” and consequently, the Commission awarded permanent partial disability benefits on that basis. The concurring opinion noted that a 5% impairment to the right upper extremity is equivalent to a 3% impairment to the body as a whole. The Commission also awarded temporary total disability benefits from February 7, 2000, when Dr. Lipke excused appellee from work, to April 24, 2000, when the doctor released appellee to return to work. The Commission concluded that appellee’s employment as a minister during that time period did not preclude the award of temporary total disability benefits.
On appeal, appellants first argue that the Commission erred in concluding that appellee suffered a right shoulder injury arising out of and in the course of his employment. Primarily, they argue that appellee failed to establish a causal relationship between his employment and his injury.
A “compensable injury” is one “arising out of and in the course of employment.” Ark. Code Ann. § 11-9-102(4) (A) (i) (Repl. 2002). As the claimant, appellee had the burden of proving a compensable injury by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(JE)(i) (Repl. 2002). “Thus, in order to prove a compensable injury [the claimant] must prove, among other things, a causal relationship between his employment and the injury.” McMillan v. U.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (1997).
Appellee testified that he had no previous problems with his shoulder, that he was in pain following the accident, and that the pain worsened over time. Dr. Lipke attributed part of his impairment to the accident, concluding that the accident was the “straw that broke the camel’s back,” aggravating his underlying shoulder problems. While appellants point out reasons why the Commission could have discredited appellee’s testimony, the Commission found appellee to be credible and concluded that appellee proved by a preponderance of the evidence that he sustained an injury arising out of and during the course of his employment and that there was a causal relationship between his injury and his employment. “In determining the sufficiency of the evidence to sustain the findings of the Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence.” McMillan, 59 Ark. App. at 87, 53 S.W.2d at 908. Further, “it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony.” Id. Because the evidence establishes a substantial basis for the Commission’s decision, we affirm.
Appellants argue that because appellee worked as a minister and received full pay, he was not totally incapacitated from earning wages, and thus, appellee failed to establish that he was entitled to temporary total disability benefits from February 7, 2000, to April 24, 2000. We note that “[temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages.” Arkansas State Hwy. & Transp. Dep’t. v. Breshears, 272 Ark. 244, 247, 613 S.W.2d 392, 393 (1981). “‘Disability’ means incapacity because of compensable injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the compensable injury. . . .” Ark. Code Ann. § 11-9-102(8) (Repl. 2002). However, while appellee was able to earn wages as a minister during that period, as we explained in Stevens v. Mountain Home Sch. Dist., 41 Ark. App. 201, 203-04, 850 S.W.2d 335, 336 (1993), for the purpose of defining disability, “ ‘any other employment’ means any other employment in lieu of the one in which the employee was injured.” Because appellee was working both jobs when he was injured, his job as a minister was not “any other employment” undertaken in place of his employment at WalMart. Accordingly, we affirm the Commission’s award of temporary total disability-benefits.
Appellants further contend that the Commission erred in awarding appellant permanent partial disability benefits because Dr. Lipke opined that the compensable injury was not the major cause of appellee’s permanent disability or need for treatment. The relevant statute provides as follows:
(ii)(a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
(b) If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensa-ble injury is the major cause of the permanent disability or need for treatment.
Ark. Code Ann. § ll-9-102(4)(F) (Repl. 2002). “‘Major cause’ means more than fifty percent (50%) of the cause.” Ark. Code Ann. § 11-9-102(14) (A) (Repl. 2002). “A finding of major cause shall be established according to the preponderance of the evidence. . . .” Ark. Code Ann. § 11-9-102(14)(B) (Repl. 2002).
We note, however, that the Commission did not award permanent partial disability benefits based on Dr. Lipke’s conclusion that appellee had a 30% impairment to the body as a whole. Rather, consistently with Dr. Lipke’s findings, the Commission concluded that the compensable injury was the major cause of 3% of appellee’s permanent impairment to the body as a whole, and consequently, the Commission awarded permanent partial disability benefits on that basis. Dr. Lipke’s exacting testimony provided the Commission with a preponderance of evidence from which to determine that the compensable injury was the major cause of appellee’s 3% impairment. See Second Injury Fund v. Stephens, 62 Ark. App. 255, 970 S.W.2d 331 (1998)(holding that the “major cause” requirement was satisfied by evidence that an injury necessitated performance of surgery and that this surgery, at the site of a previous one, was the reason for the additional 2% impairment rating). We affirm the Commission’s award of permanent partial disability benefits.
Affirmed.
Robbins and Baker, JJ., agree.
We recognize that the 50% impairment figure differs from the 60% impairment figure mentioned above. The discrepancy, however, was not a basis for appeal. | [
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Larry D. Vaught, Judge.
This is an appeal from an order granting the State’s complaint for bond forfeiture against appellant in the amount of $10,000. Appellant raises two points on appeal: (1) that the trial court erred in entering a bond-forfeiture judgment against the surety because it did not follow the requirements of Ark. Code Ann. § 16-84-201(a)(1) (A) (Supp. 2001) strictly and exactly, and (2) that the trial court erred in entering a bond-forfeiture judgment against the surety because there was no proof in the record that the defendant had been notified to be in court on the dates he failed to appear. We agree with appellant’s first point and reverse.
On August 24, 1999, the State charged Jason McDonald with aggravated assault in Sebastian County Circuit Court. Appellant, Holt Bonding Company, posted an appearance bond for McDonald. McDonald was represented by a public defender. The trial court scheduled a hearing on the State’s petition to revoke bond for July 25, 2000, and notice of the hearing was sent to Holt Bonding. McDonald failed to appear at the July 25 hearing; the trial court’s docket entry noted the failure to appear and a bench warrant for McDonald’s arrest was issued on July 28. The court also notified Holt Bonding of a hearing scheduled for August 23, 2000. Again, McDonald failed to appear and his failure to appear was noted in the court’s docket. On August 25, 2000, the court sent a notice (filed August 28) to Holt Bonding to notify it of McDonald’s August 23 failure to appear. The notice provided that Holt Bonding had 120 days from August 28 to show cause as to why the bond should not be forfeited. *
A bond-forfeiture summons was sent to Holt Bonding on January 3, 2001, regarding McDonald’s failure to appear on August 23, 2000, and Holt Bonding was ordered to answer within 20 days. Holt Bonding responded that the requirements of Ark. Code Ann. § 16-84-201 were not strictly followed. A hearing was held on. February 7, 2001, and posttrial briefs were submitted. The trial court’s original order granting the forfeiture was entered on March 16, 2001, and an almost identical order was entered on March 23, 2001, ordering that the bond be forfeited and entering a judgment against appellant in the amount of $10,000. From that order, comes this appeal.
Appellant first contends that the trial court erred in entering a bond-forfeiture judgment against the surety because it did not follow the requirements of Ark. Code Ann. § 16-84-201(a)(1)(A) strictly and exactly. Arkansas Code Annotated section 16-84-201(a)(l)(A) provides:
If the defendant fails to appear for trial or judgment, or at any other time when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court may direct the fact to be entered on the minutes, and shall promptly issue an order requiring the surety to appear, on a date set by the court not more than one hundred twenty (120) days after the issuance of the order, to show cause why the sum specified in the bail bond or the money deposited in lieu of bail should not be forfeited.
Statutory service requirements, being in derogation of common-law rights, must be strictly construed, and compliance with them must be exact. Bob Cole Bail Bonds, Inc. v. State, 65 Ark. App. 1, 984 S.W.2d 78 (1999).
Appellant argues that it was not “promptly” notified pursuant to Ark. Code Ann. § 16-84-201 after McDonald’s first failure to appear in July 2000. The record below indicates that McDonald failed to appear on July 25, 2000, and that the court noted his failure to appear on its docket sheet. McDonald also failed to appear on August 23, 2000, a fact which the court also noted on its docket. On August 28, 2000, the court sent a notice to Holt Bonding informing that McDonald failed to appear on August 23.
In Bob Cole Bail Bonds, supra, this court addressed the issue of whether notice was “promptly” given within the meaning of Ark. Code Ann. § 16-84-201. In that case, a bond was posted on June 14, 1995, to ensure a defendant’s appearance. The defendant failed to appear on numerous occasions from August 23, 1995, to February 3, 1997. After the defendant’s first failure to appear on August 23, 1995, the trial court made a docket entry that an arrest warrant would be issued for failure to appear and included the words “Notify Bondsman.” However, an order requiring appellant to appear and show cause why the bond should not be forfeited was not entered until February 14, 1997, more than a year after the first failure to appear. Appellant received this notice by certified mail on February 18, 1997. Appellant argued that it was not “promptly” notified pursuant to Ark. Code Ann. § 16-84-201(a)(1)(A) because it should have been notified after the first failure to appear in August 1995. The trial court disagreed, and appellant appealed.
This court reversed, stating that once the trial court made the docket entry noting the defendant’s failure to appear, it was mandatory pursuant to the statute for notice to be promptly given to the surety. We went on to state that “[w]ithout designating a bright-line rule of what “promptly” means in this context, we find that the time lapse in this case cannot pass muster[.]” Id. at 4, 984 S.W.2d at 80.
In the present case, the July 25 failure to appear was noted in the court’s docket, but notice of the July 25 failure to appear was never given to Holt Bonding. Rather, Holt Bonding was only given notice of the August 23 failure to appear. According to Ark. Code Ann. § 16-84-201 (a)(1) (A) and Bob Cole Bail Bonds Inc., supra, once the trial court made the docket entry noting McDonald’s July 25 failure to appear, it was mandatory for notice to be promptly given of that failure to appear. The August 28 notice to Holt Bonding only notified it of the August 23 failure to appear, a fact which the State concedes. As stated previously, statutory service requirements must be strictly construed, and compliance with them must be exact. Bob Cole Bail Bonds, Inc., supra. Because the State failed to specifically notify Holt Bonding of McDonald’s July 25 failure to appear, we cannot say that the service requirements of Ark. Code Ann. § 16-84-201 were followed exactly, and we reverse on this basis. Further, we need not reach the other issues appellant raises in its first and second points of appeal because our decision on the first issue is determinative of the matter.
Reversed and dismissed.
Bird and Roaf, JJ., agree. | [
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Karen R. Baker, Judge.
This is an appeal from a decision of the Arkansas Workers’ Compensation Commission’s denial of appellant’s request for a change of physician. We hold that the Commission’s finding that the employer had fulfilled the obligation of providing adequate medical treatment, diagnostic testing, and consultation with specialists, under the provisions of Ark. Code Ann. § 11-9-508 (Repl. 2002), was not supported by substantial evidence. Arkansas Code Annotated section 11-9-514(a)(3)(h) (Repl. 2002) established an absolute, statutory right to a one-time change of physician under the Workers’ Compensation Act where the employer has contracted with a managed-care organization and has exercised the right to select the initial primary-care physician. The employer’s denial of the one-time change of physician as a matter of law fails to fulfill the obligation imposed by section 11-9-508. Accordingly, we reverse.
Facts
On January 4, 2000, appellant (while employed by Lennox Industries) reached for a coil weighing between thirty and fifty pounds that was stacked above his head. As he flipped the coil over to remove it from the stack, he injured his back. The injury was reported in a timely manner, and appellant was sent to Dr. N.B. Daniel.
Dr. Daniel diagnosed appellant with a lumbosacaral strain. Appellant requested and received a referral to an orthopedist (Dr. John Wilson). On January 27, 2000, Dr. Wilson diagnosed appellant with “mild sciatia.” Dr. Wilson also noted that appellant had “tenderness over the right sciatic notch,” and that his straight-leg raising was “mildly positive.” Dr. Wilson released appellant to return to work with no restrictions. On February 16, 2000, appellant returned to Dr. Wilson. After seeing appellant, Dr. Wilson noted:
[Appellant] was reassured that he does not have operative problems with his back and should attempt to continue his normal activities at work. He wanted an MRI done on his back and, quite frankly, without objective findings or radicular findings, I do not feel the study would be necessary. He seems a bit upset with me because of my position. At any rate, this gendeman has been released to return to his normal activities at work.
On February 22, 2000, appellant returned to Dr. Daniel, who reported:
On exam today he moves very well. . . My impression still is that he has a lumbosacral strain . . . [Appellant] has it in his mind that neither myself or the specialty physician, that I don’t personally know, don’t care about him and we are limiting services in that we haven’t done a MRI and we haven’t done a myelogram and we are not trying to really find out what is wrong with his back. He doesn’t believe me when I tell him that the likelihood of finding something abnormal on a MRI of his back, or a mye-logram is very small and even if we did find that he has for instance a bulging disc with the degree of symptoms that he has — nothing would be done therapeutically such as surgery, trigger point injection, epidural steriods, so forth, so forth.
Despite these two reports, appellant continued to request a MRI, and appellees eventually approved of the diagnostic test. Dr. Wilson performed the test and on March 9, 2000, reported that the findings revealed nothing “of an operative nature.” He also noted that the MRI showed early disc degenerative disease and again released appellant to return to work. On March 22,'2000, appellant presented to Dr. Wilson again. After the visit, Dr. Wilson reported:
I have advised [appellant] that he does not have an operative problem with his back and that he has some early degenerative disc disease and superimposed lumbosacral strain but certainly nothing that needs surgery and this is something that he should be able to work through. He asked for medication and related that he had been scheduled for a myelogram. When asked the circumstances of who was doing this, he said he was not supposed to tell me. At any rate, I do not suggest a myelogram. His MRI did not reveal anything of an operative nature.
On March 27, 2000, appellant returned to Dr. Daniel and was approved for an independent medical examination by Dr. Bruce Safman, which was conducted on April 12, 2000. Dr. Safman’s findings were consistent with Dr. Wilson’s. Additionally, Dr. Safman noted that appellant wanted to tape-record the examination and was not happy with the fact his degenerative changes were not related to the injury. Finally, on May 10, 2000, appellant saw Dr. Wilson again. Dr. Wilson reported “mild restriction of motion of the lumbar spine with tenderness,” “mild spasm,” and “early degenerative disk disease” and “significant herniation.”
On May 23, 2000, appellant (through counsel) requested a change of physician. The request was denied by appellee. Appel-lee responded that further medical treatment was not reasonable and necessary.
On October 4, 2000, the Administrative Law Judge, filed a pre-hearing order stating, in relevant part, “By agreement of the parties, the issues to be litigated at the hearing are limited to the following: Continuing medical treatment; change of physician; controversion and attorney’s fees. All other issues are reserved.” The parties stipulated that appellant suffered a compensable injury on January 4, 2000, that an employee-employer-carrier relationship existed on that date, that his compensation rate for TTD purposes was $371.00, and that Lennox was associated with a managed-care organization.
The ALJ fashioned her opinion around an analysis of “whether or not additional medical treatment is reasonable, necessary and related to the compensable injury.” Although she did not directly address the change of physician request in her findings, the opening sentence of her March 5, 2001, order states that “A hear ing was conducted to determine the claimant’s entitlement to payment of continuing medical treatment, a change of physician, and attorney’s fees.” The ALJ in its finding and conclusions found that the employer had fulfilled the obligation of providing adequate medical treatment, diagnostic testing, and consultation with specialists under the provisions of Ark. Code Ann. § 11-9-508. Further findings stated as follows:
1. The Workers’ Compensation Commission has jurisdiction of this claim in which the relationship of employee-employer-carrier existed among the parties on January 4, 2000, at which time the claimant sustained a compensable injury at a compensation rate of $371. Medical expenses and temporary total disability were paid.
2. The respondents have paid all appropriate benefits and expenses.
3. The claimant has failed to prove by a preponderance of the credible evidence of record that further medical treatment is reasonable, necessary, or related to the compensable injury.
The Full Commission affirmed these findings, and this appeal followed.
Appellant asserts two points on appeal: (1) Arkansas Code Annotated § 11-9-514 provides claimant employee an absolute right to a one-time-only change of physician, so long as he has not selected the initial physician, and (2) the Commission, by adopting the decision of the Administrative Law Judge, incorrectly placed a burden of proof upon the claimant employee • for purposes of deciding the issue of a change-of-physician request.
On appeal, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission and will affirm the Commission’s decision if it is supported by substantial evidence. See Ark. Code Ann. § 11-9-711(b)(4)(d) (Repl. 2002); Spencer v. Stone Container Corp., 72 Ark. App. 450, 38 S.W.3d 909 (2001); Superior Indus, v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to sustain a conclusion. Air Compressor Equip, v. Sword, 69 Ark.App. 162, 11 S.W.3d 1 (2000). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Geo Specialty Chem. v. Clingan, 69 Ark.App. 369, 13 S.W.3d 218 (2000).
Our analysis focuses on the issue of whether an injured employee is entitled as an absolute right to a one-time change of physician. Arkansas Code Annotated section 11-9-514(a)(3)(h) (Repl. 2002) provides a claimant with an absolute one-time right to a change of physician. The language in subsection (a)(3)(h) mandates that “where the employer has contracted with a managed care organization certified by the commission, the claimant employee, however, shall be allowed to change physicians by petitioning the commission one (1) time only for a change of physician.” (Emphasis added.) The Commission’s lack of discretion regarding the grant or denial of the employee’s right to a change becomes especially clear when considering the language of § 11-9-514(a)(1) and (2), which became null and void with the adoption of the managed health-care system in Arkansas. The now inapplicable section included the phrase “if the Commission approves the change,” which allowed the Commission the discretion to approve or disapprove any change of physician. See Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d (1996); Byars Const. Co. v. Byars, 72 Ark. App. 158, 34 S.W.3d 797, (2000) (requiring claimant to provide a compelling reason or circumstance justifying a change).
Appellee argues that appellant’s request for a change of physician is simply his effort to obtain additional treatment which the Commission found was not warranted upon the facts in this case and the provisions of section 11-9-508. However, even under the former standard where the Commission had discretion in granting a change-of-physician request, the healing period of an employee who had no initial choice of physicians at time of his injury, was of no significance in a proceeding by employee to have change of physician approved by the Commission. See Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).
The currently applicable subsection, (a)(3), contains no discretionary phrase regarding approval of the change, but simply states that the right to a one-time change “shall be allowed, by petitioning the commission.” Therefore, there is no discretion left to the Commission. The majority of the section deals with “how” the physician for this change will be selected, not “if” the physician will be selected.
The only suggestion of any type of discretion available to the Commission in the application of this statute is in the method by which one acquires such a change. The statute orders that one acquires the change by petitioning the Commission. The code section goes on to order that the Commission “shall” expedite the petition for change and that “a request for a hearing on a change of physician by either the employer or the injured employee shall be given preference on the Commission’s docket over all other matters.” (Emphasis added.)
Because we find that a one-time change of physician is mandatory, we hold that the Commission’s finding that the employer had fulfilled the obligation of providing adequate medical treatment, diagnostic testing, and consultation with specialists, under the provisions of Ark. Code Ann. § 11-9-508 was not supported by substantial evidence and accordingly reverse. We do not address appellant’s second argument in light of our reversal on the first issue. Therefore, we reverse and remand with instructions to order a change of physician.
Griffen and Vaught, JJ., agree. | [
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Robert J. Gladwin, Judge.
Appellant, Neil Williams, appeals from a decision by the Workers’ Compensation Commission denying his claim for benefits. For reversal, appellant argues that the Commission’s decision was not supported by substantial evidence. We affirm.
On December 25, 1998, appellant was working at Virco Manufacturing Company as an employee of Brown’s Sheet Metal, lifting heavy exhaust fans that weighed approximately 700 pounds each. He worked for about four hours at this task. Appellant went to the doctor on December 31, 1998, and was diagnosed as having a kidney infection. When the pain in appellant’s back persisted past the healing of the infection, he saw his regular doctor and several other doctors over the next two to three years for treatment of his back pain. Appellant sought workers’ compensation benefits, contending that he had injured his back when lifting the fans at Virco. The administrative law judge denied appellant’s claim. The Commission remanded the case to settle the record as to the deposition of appellant’s witness, Dr. Thomas Hart. Thereafter, the law judge filed a supplemental opinion that modified his findings of fact and denied appellant’s claim. The Commission affirmed and adopted the law judge’s opinion and findings.
The Commission concluded that there was nothing in the record to indicate that a specific-incident injury had occurred and that appellant had thus failed to meet his burden of proving the existence of a compensable injury. Although appellant claimed he injured his back while lifting the fans, he could not identify a specific incident or moment in time when he might have sustained this injury. According to appellant’s testimony, he suspected he had a kidney infection but could not tell if the pain he was experiencing was related to the kidney infection or if he had injured his back. Appellant stated that he assumed that because the fans were so heavy, lifting them must have been what caused his back to hurt. Appellant also acknowledged prior back injuries, occasions when he experienced low back pain severe enough to cause him to walk “in a crooked position,” and involvement in an automobile accident in 1993.
One of appellant’s co-workers testified that following the day’s work, appellant stated that he thought he might have pulled something in his lower back. Several physicians treated appellant, and their collective testimony established that appellant had degenerative disc disease of the lumbar spine and that he suffered multilevel annular disc disruption or annular tears.
In determining the sufficiency of the evidence to support the findings of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we will affirm if those findings are supported by substantial evidence. Winslow v. D & B Mech. Contr.s, 69 Ark. App. 285, 13 S.W.3d 180 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Commission. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). 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 it deems worthy of belief. Id. 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 con- elusions arrived at by the Commission. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002).
Viewing the evidence in the light most favorable to the Commission’s findings, the record shows that although appellant had suffered physical injury to his back, there is nothing to indicate that a specific-incident injury occurred other than appellant’s own testimony that he “thinks” an injury must have occurred while he was lifting the heavy fans at Virco. Appellant’s medical records clearly demonstrate the presence of degenerative disc disease. There were no eyewitness accounts of the alleged injury, and appellant’s own testimony is less than determinative; in fact, his testimony establishes that there was no specific incident of injury and that his claim of injury while lifting the fans is based solely upon his deduction that the injury must have occurred then because the fans were heavy.
Appellant’s witness, Dr. Thomas Hart, opined that regardless of appellant’s preexisting degenerative disc disease, the on-the-job lifting incident was the major cause of appellant’s current disability. The Commission noted that while Dr. Hart had objectively proven the existence of annular tears that were causing appellant’s back pain, he could only speculate as to the origin of the annular tears by relying on assumptions that had been furnished to him by appellant. The Commission found, in assessing the weight to accord Dr. Hart’s opinion, an over-reliance by the doctor on the appellant’s related history and accounts of an alleged job-related injury. The Commission further found that when subjected to cross-examination, the doctor’s responses were speculative as to the issue of causal relationship.
It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). The Commission has a duty to use its experience and expertise in translating the testimony of medical experts into findings of fact. Id. It is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or uncontroverted; and when it does so,' its findings have the force and effect of a jury verdict. Marrable v. Southern LP Gas, Inc., 25 Ark. App. 1, 751 S.W.2d 15 (1988). The Commission is not bound by a doctor’s opinion that is based largely on facts related by a claimant where the claimant’s own testimony is less than determinative. See Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).
In reviewing the Commission’s decision, the question is not whether the evidence would have supported findings contrary to the ones made by the Commission or even whether we would have reached a different conclusion upon the same facts; the question is whether reasonable minds could reach the conclusion made by the Commission. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999); Winslow v. D & B Mech. Contrs., 69 Ark. App. 285, 13 S.W.3d 180 (2000). When 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 us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Daniels v. Arkansas Dep’t of Human Servs. 77 Ark. App. 99, 72 S.W.3d 128 (2002). Here the Commission’s decision displays a substantial basis for the denial of relief, and we affirm.
Interspersed throughout appellant’s argument are references to his contention that the administrative law judge intentionally excluded a deposition transcript from the evidence in his case and his suggestion that the Commission aided the law judge in “covering up” his action by remanding the case for the law judge to settle the record and issue a supplemental opinion. We agree with the Commission that the unintentional error in excluding from the record the deposition of Dr. Hart was corrected by the remand and the supplemental order that made the deposition transcript a part of the record. As noted by the Commission, the law judge reviewed the evidence, including the testimony of Dr. Hart, and amended his findings accordingly. Any unfairness that might have existed was cured by the law judge’s consideration of Dr. Hart’s deposition upon remand. Appellant’s claims are without merit as he offers no facts or evidence to support his claims of prejudice, bias, or a cover-up.
Affirmed.
Pittman, Robbins, Bird, and Griffen, jj., agree.
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John Mauzy Pittman, Judge.
This appeal involves the
J construction of an easement deed. Appellants’ predecessors in title granted an easement to the city. The easement was specifically designated as being for two purposes: laying utilities on the easement and providing access to adjoining land that the city owned. Subsequently, the city allowed the construction of wireless communication equipment on the part of the city’s land that was accessed by the easement. The appellants sued for trespass and nuisance, arguing that the use made of the easement by defendants exceeded the rights granted to them by appellants’ predecessors in title. The trial court disagreed with this construction of the easement deed and granted summary judgment to appellees. This appeal followed.
For reversal, appellants contend that the trial judge erred in entering summary judgment for appellees; in denying appellants’ motion for summary judgment; and in failing to construe the easement as excluding the construction, maintaining, and servicing of cellular communications facilities. We affirm.
The record reflects that appellee City of Fayetteville built a water tower on its property adjacent to land owned by Dr. Carl Covey and his wife. In March 1987, the Coveys granted the City a “right-of-way grant” over their property. The deed granted to the City and its assigns “the right of way and easement to construct, lay, remove, relay, enlarge, and operate a water and/or sewer pipeline or lines, manholes, driveway and appurtenances thereto” across the Coveys’ property. The deed described the easement as “[a] permanent easement of 25 feet in width for the purpose of laying a water line and an access driveway, more particularly described as follows, to wit: a 25 foot ingress and egress access and utility easement” and set forth a metes-and-bounds description of its location. The deed also provided:
TO HAVE AND TO HOLD unto said Grantee, its successors and assigns, so long as such pipe line or lines, manholes, driveway and/or appurtenances, thereto shall be maintained, with ingress to and egress from the real estate first hereinabove described for the purpose of constructing, inspecting, maintaining and repairing said fines, manholes, driveway and appurtenances of Grantee above described, and the removal, renewal and enlargement of such at will, in whole or in part.
In October 1994, the City entered into an agreement with appellee Fayetteville MSA Limited Partnership, through its general partner, Alltel Mobile Communications of Arkansas, Inc., permitting the attachment of wireless communications equipment to the City’s water tower. The City also leased to Alltel the ingress and egress easement over the Coveys’ land. In 1998, appellants purchased the Coveys’ property, after Alltel had operated the wireless equipment and used the access easement for over three years. In October 1998, the City of Fayetteville entered into an agreement with appellee Telecorp Realty, LLC, that permitted Telecorp to construct a wireless tower adjacent to the water tower on the City’s property and to use the ingress and egress easement. The City and Telecorp assigned to appellee Southwest PCS, LP, the rights to locate cellular equipment on this tower and to use the easement.
Appellants sued appellees in May 2000 for trespass, nuisance, and inverse condemnation, alleging that appellees had exceeded the scope and intent of the easement. All parties moved for summary judgment, arguing that the right-of-way grant was unambiguous.
Alltel filed the affidavits of Dr. Covey and Burt Rakes, the City’s land agent who had negotiated with the Coveys for the right-of-way grant in 1987. Dr. Covey stated that it was his and his wife’s intent to give the City “the right to utilize the easement as a utility easement and as a driveway/access easement so that the City could have unlimited ingress and egress to its property for all lawful purposes.” He added that he had not intended to restrict the City’s access to its property “for any particular purpose.” In his affidavit, Mr. Rakes said that, by the right-of-way grant, the City had intended to obtain a utility easement and an access/ driveway easement, for all lawful purposes, to its property and that the Coveys had understood this. He also stated that “[t]he use of the access easement was not limited to the operation of a water utility system or any other specific purpose.”
On October 3, 2001, the trial judge entered partial summary judgment for appellees on the trespass and nuisance issues. She found that the easement “clearly and unambiguously grant[ed] the City an easement for an ingress and egress right-of-way and as a utility easement.” She also found that the use of the easement by the City and its assigns for access to the City’s property was within the scope of the grant. She reserved a decision on the inverse-condemnation issue.
Appellants again moved for summary judgment and requested clarification of the judge’s previous order. Appellants argued that, even if the judge had determined that the City’s easement was a right of way for utility purposes, the use of the right of way was limited to utility purposes, and cellular telecommunications businesses are not public utilities pursuant to Ark. Code Ann. § 23-1-101 (Repl. 2002). In support, they filed the affidavit of Sam Bratton, counsel to the Arkansas Public Service Commission, wherein he stated that the Commission does not regulate cellular communications businesses. In response, the City argued that the judge’s order made it clear that the grant conveyed an ingress and egress right of way and a utility easement and, therefore, Mr. Bratton’s affidavit was irrelevant. They also asserted that the grant of the ingress and egress easement was not limited in purpose.
Upon the motion of appellants, the judge entered an order on January 2, 2002, dismissing their claim for inverse condemnation with prejudice. On January 22, 2002, the judge denied appellants’ second motion for summary judgment, finding that the easement clearly and unambiguously granted the City an ingress and egress right of way to its property and a utility easement:
The Court finds that the ingress and egress right of way given to the City is not limited to the operation of a utility. . . . Even if this Court were to find that the easement is ambiguous, which it does not, the uncontradicted affidavits of Dr. Covey and the representative of the City that negotiated with Dr. Covey for the easement, Burt Rakes, state that the intention of the parties to the easement was to provide the City with a utility easement and an easement for ingress and egress for all lawful purposes.
Appellants bring this appeal from the October 3, 2001, January 2, 2002, and January 22, 2002, orders.
Appellants argue that the judge erred (1) in entering summary judgment for appellees; (2) in denying appellants’ motion for summary judgment; and (3) in fading to construe the easement as excluding the construction, maintaining, and servicing of cellular communications facilities. The first and second points will be considered together.
In summary-judgment cases, this court need only decide if the granting of summary judgment was appropriate based upon whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Id. All proof submitted must be viewed in a fight most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Id. On a summary-judgment motion, once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Welch Foods, Inc. v. Chicago Title Ins. Co., 341 Ark. 515, 17 S.W.3d 467 (2000). When a party cannot present proof on an essential element of its 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. Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988). Summary judgment is not appropriate 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. Lee v. Hot Springs Village Golf Sch., 58 Ark. App. 293, 951 S.W.2d 315 (1997).
Appellants contend that the right-of-way grant unambiguously limited its use to purposes relating to water utilities and did not permit its assignment for the purposes of constructing and servicing wireless-communications towers and equipment. In response, appellees argue that the judge correctly construed the grant as unambiguously conveying two different rights — a utility easement and an access driveway unrestricted in the purposes for which it can be used. Appellants further contend that, if the grant is ambiguous, the rules of construction should be employed and it should be construed against its drafter, the City. Appellees, however, point out that the unrebutted affidavits of Mr. Rakes and Dr. Covey prove that the parties intended the deed to convey an unrestricted access right of way in addition to the utility easement.
When interpreting a deed, the court gives primary consideration to the intent of the grantor. Winningham v. Harris, 64 Ark. App. 239, 981 S.W.2d 540 (1998). 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.
It is only in case of an ambiguity that a 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). Even then, the rule is one of last resort to be applied only when all other rules for construing an ambiguous deed fail to lead to a satisfactory clarification of the instrument and is particularly subservient to the paramount rule that the intention of the parties must be given effect, insofar as it may be ascertained, and to the rule that every part of a deed should be harmonized and reconciled so that all may stand together and none be rejected. Gibson v. Pickett, supra. In arriving at the intention of the parties, the courts may consider and accord considerable weight to the con struction of an ambiguous deed by the parties themselves, evidenced by subsequent statements, acts, and conduct. Wynn v. Sklar & Phillips Oil Co., 254 Ark. 332, 493 S.W.2d 439 (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.
A summary judgment may be based upon an unambiguous, written instrument. Barraclough v. Arkansas Power & Light Co., 268 Ark. 1026, 597 S.W.2d 861 (Ark. App. 1980). On our review of the record, we do not believe that a reasonable person could construe the deed as limiting the rights conveyed to uses relating only to water utilities, and we therefore hold that the trial judge was correct in finding the grant to be unambiguous and in construing it as conveying an unrestricted access right of way in addition to a utility easement.
Nor do we believe that the trial judge erred in finding that the City’s and its assigns’ use of the easement for access to the City’s property was within the scope of the grant. The owner of an easement may make use of the easement compatible with the authorized use so long as the use is reasonable in fight of all facts and circumstances of the case. Howard v. Cramlet, 56 Ark. App. 171, 939 S.W.2d 858 (1997); Hatfield v. Arkansas W. Gas Co., 5 Ark. App. 26, 632 S.W.2d 238 (1982). Two circumstances of the present case are particularly worthy of note: First, the telecommunications equipment was not placed on the easement, but on land belonging to the city. Second, the access easement by its very terms anticipated that traffic on the, easement might increase as the city developed its land, as indicated by the deed’s specific grant of the right to both construct and enlarge a roadway on the easement across appellants’ property. Given this language, we think that the deed unambiguously granted the city an access easement that anticipated expanded use, and that the trial court did not err in granting summary judgment to the appellees.
Finally, we also agree with the trial judge’s conclusion that it is irrelevant whether cellular communications businesses are included within the term “public utility” in Ark. Code Ann. § 23-1-101 (Repl. 2002). The definition of “public utility” in section 23-1-101 relates only to ratemaking by the Arkansas Public Service Commission. Additionally, it does not matter whether the uses to which the utility easement may be put do not include cellular telecommunications purposes, because nothing in the record limits the City’s right to permit the placement of and access to cellular towers and equipment on its land that is served by the contemporaneously granted access easement.
Affirmed.
Crabtree, J., agrees.
Robbins, J., concurs. | [
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Sam Bird, Judge.
Pursuant to Ark. R. Crim. P. 24.3(b), Charles Heaslet entered conditional guilty pleas in Lonoke County Circuit Court to charges of possession of methamphetamine, possession of drug paraphernalia, and conspiracy to manufacture methamphetamine in case number CR 99-543 and second-degree forgery in case number CR 99-554, after the trial court denied his motions to suppress the evidence found during the execution of two search warrants at his mobile home. On appeal, Heaslet argues that the trial court erred in: (1) denying his motion to suppress the evidence seized in CR 99-543 because the affidavit in support of the search warrant failed to provide a factual basis for authorizing a nighttime search; (2) denying his motion to suppress evidence seized in CR 99-543 because the trial court took improper judicial notice of the location and surroundings of his residence and violated the requirements of Ark. R. Crim. P. 13.2; (3) denying his motion to suppress evidence seized in CR 99-554 because the affidavit in support of the search warrant failed to provide sufficient facts to find probable cause. We agree that the trial court erred in refusing to suppress the evidence, and we reverse and remand.
On October 12, 1999, Deputy Steve Rich of the Lonoke County Sheriff s Office swore out an affidavit for a search warrant of Charles Heaslet’s residence. The warrant authorized a night time search, and the search was conducted on the same date the warrant was approved. As a result of the search, Heaslet was charged in CR 99-554-543 with conspiracy to manufacture a controlled substance, possession of drug paraphernalia, and possession of a controlled substance.
On November 10, 1999, Chief Brent Cole of the Carlisle Police Department swore out an affidavit for a second search warrant of Heaslet’s residence. After the warrant was issued and the search conducted, Heaslet was charged in CR 99-554-554, as a habitual offender, with five counts of forgery in the second degree.
1. CR 99-543
A. Nighttime Search
When this court reviews a trial court’s denial of a motion to suppress evidence, it makes an independent determination based on the totality of the circumstances, but will only reverse if the trial court’s decision was clearly against the preponderance of the evidence. Simmons v. State, 72 Ark. App. 238, 34 S.W.3d 768 (2000).
As a prerequisite to the issuance of a warrant for a nighttime search, the affidavit or other evidence presented in support thereof must set forth a factual basis that justifies a nighttime search. Langley v. State, 66 Ark. App. 311, 990 S.W.2d 575 (1999). Arkansas Rule of Criminal Procedure 13.2(c) provides that before a warrant authorizing a nighttime search is issued, the issuing judicial officer must have reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy.
Our supreme court has invalidated nighttime search warrants when the evidence presented in support of the nighttime search lacked facts supporting one or more of these exigent circumstances. See, e.g., Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991); State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991); Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990); State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980). In Richardson v. State, supra, the supreme court stated:
We have consistently held that a factual basis supporting a nighttime search is required as a prerequisite to the issuance of a warrant authorizing a nighttime search. . . . We have held conclusory language . . . unsupported by facts is insufficient to justify a nighttime search. . . . Given that there was nothing to give reasonable cause to believe the items specified in the search warrant would be disposed of, removed, or hidden before the next morning, issuance of the nighttime search warrant was in error.
Id. at 518-19, 863 S.W.2d at 576. In State v. Broadway, 269 Ark. 215, 218, 599 S.W.2d 721, 723 (1980), the supreme court held that “[a]n affidavit should speak in factual and not mere con-clusory language. It is the function of the judicial officer, before whom the proceedings are held, to make an independent and neutral determination based upon facts, not conclusions, justifying an intrusion into one’s home.”
In this case, the officers merely checked off the conclusory statements to establish reasonable cause. It is obvious that the affidavit form was drafted to reflect the requirements for reasonable cause as set out in Rule 13.2 because the language is basically the same. However, there were no specific facts presented to show that the place to be searched was difficult of speedy access, that the objects to be seized were in danger of imminent removal, or that the warrant could only be safely or successfully executed at nighttime. The affidavit only contained three statements in addition to the three checked conclusory statements. These statements provided merely that confidential informants had stated that Heaslet was making methamphetamine.
In Garner v. State, supra, the judge issued a nighttime search warrant and checked two boxes on the warrant that stated: “the place to be searched is difficult of speedy access” and “the warrant can only be safely or successfully executed at night time or under circumstances the occurrence of which is difficult to predict with accuracy.” In reversing the trial court’s denial of appellant’s motion to suppress, the Garner court stated:
[Cjonclusory statements [do] not suffice to establish the requisite factual basis for reasonable cause. . . . We, therefore, hold that the two statements “checked” were conclusory and unsupported by sufficient facts and, accordingly, did not establish reasonable cause for a nighttime search. Without sufficient factual premises, it was impossible for the municipal judge to make an intelligent finding of reasonable cause to justify a nighttime search.
Id. at 357-58, 820 S.W.2d at 449.
It is our duty as a reviewing court to ensure that the magistrate had a substantial basis for concluding that probable cause existed. U.S. Const. amend. IV; Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001). We hold that not only was the search warrant deficient under Ark. R. Crim. P. 13.2(c), but that probable cause was lacking to justify a nighttime search.
B. Good-Faith Exception
We now address the question of whether the police officers acted in good faith in executing this search warrant under United States v. Leon, 468 U.S. 897 (1984). In Leon, the Court held that the Fourth Amendment exclusionary rule should not be applied to exclude evidence obtained by police officers acting in reasonable reliance on a search warrant that is ultimately found to be invalid. We have held that an objective standard of good faith is not met when a police officer only presents suspicions regarding removal of contraband and the municipal judge only repeats the boilerplate language from Rule 13.2(c). See Richardson v. State, supra; Garner v. State, supra. We hold that, under the objective standard, a reasonably well-trained police officer would not have believed that probable cause existed to conduct a nighttime search based on the facts presented in the affidavit.
C. Judicial Notice
In denying the motion to suppress evidence, the trial court judge stated that he could not look to the testimony of Chief Cole as a basis for his ruling; instead, he could only look at those facts that appeared on the face of the affidavit. The judge then stated that the court took judicial notice that the location of Heaslet’s house was such that daytime access may be unsuccessful, unsafe, and that evidence may be destroyed. Arkansas Rule of Evidence 201(b) provides that “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resert [resort] to sources whose accuracy cannot reasonably be questioned.”
A court may take judicial notice of adjudicative facts in a criminal case, whether requested or not. Ark. R. Evid. 201 (c). However, “[c]are should be taken by the court to identify the fact it is noticing, and its justification for doing so.” Colonial Leasing Co. of New England v. Logistics Control Group In'l, 762 F.2d 454, 459 (5th Cir. 1985). The reasons the location of Heaslet’s house would call for a nighttime search were not appropriate to be judicially noticed in that it was not deducible from the record whether the facts were “generally known” or “capable of accurate and ready determination.” See Ark. R. Evid. 201(b). The judge merely stated that “the location of the farm is such that there might be a clear view . . . and therefore, a daytime approach might be unsuccessful . . . some of the evidence might be destroyed. . .” (emphasis added). In order that a matter may properly be a subject of judicial notice, it must be “known”, that is, well established and authoritatively settled, and uncertainty or difference of belief in respect to the matter in question will preclude judicial notice thereof. Taylor v. City of Pine Bluff, 226 Ark. 749, 294 S.W.2d 341 (1956). If a court takes judicial notice of any fact, it must be so notoriously true as not to be subject to reasonable dispute or must be capable of immediate accurate demonstration. Collier-Dunlap Coal Co. v. Dickerson, 218 Ark. 885, 239 S.W.2d 9 (1951). The facts judicially noticed by the court do not meet this requirement in that there is no proof that they are “notoriously true” or that they were “capable of immediate accurate demonstration.” See id. Because there was no justification provided, it appears that the facts judicially noticed were based upon the personal knowledge of the judge. “The personal knowledge of the judge is not judicial knowledge of the court, for there is no way of testing the accuracy of knowledge which rests entirely within the breast of the court.” Walker v. Eldridge, 219 Ark. 594, 595, 243 S.W.2d 638, 639 (1951). Facts that are within the personal knowledge of the judge are not subject to judicial notice, unless they fit within the two subcategories set forth in Rule 201(b). Because we have no evidence that the facts were generally known in the area and because the judge’s personal knowledge is not subject to cross-examination or review, see Ark. R. Evid. 605 (“The judge presiding at the trial may not testify in that trial as a witness.”), there was no proper basis for taking judicial notice.
D. Suppression of the Evidence
The next issue is whether the failure to establish reasonable cause with sufficient facts was such a substantial violation of the Rules as to warrant suppression of the evidence obtained. Ark R. Crim. P. 16.2(e) requires that the circuit court consider the following circumstances in determining whether a violation is substantial:
(i) the importance of the particular interest violated;
(ii) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful;
(iv) the extent to which privacy was invaded;
(v) the extent to which exclusion will tend to prevent violations of these rules;
(vi) whether, but for the violation, such evidence would have been discovered; and
(vii) the extent to which the violation prejudiced moving party’s ability to support his motion, or to defend himself in the proceedings in which such evidence is sought to be offered in evidence against him.
State v. Martinez, supra, Hall v. State, supra, and State v. Broadway, supra, all held that substantial violations occurred under Rule 16.2 due to failure to justify a nighttime search with sufficient factual information. The privacy of the citizens in their homes, secure from nighttime intrusions, is a right of vast importance as attested not only by our Rules but also by our state and federal constitutions. Garner v. State, supra. Intrusion without sufficient factual justification substantially violates our Rules, and previous cases have so held. Id.
II. CR 99-554
The affidavit in support of a search warrant in CR 99-554, dated November 10, 1999, contained six paragraphs of allegations. The first four paragraphs merely repeated the allegations contained in the affidavit for search warrant in CR 99-543. Paragraph five alleged that on November 8, 1999, a confidential informant told Chief Cole that Heaslet was forging checks using a glass table. Paragraph six alleged that on November 10, 1999, a confidential informant told Chief Cole that Heaslet was forging and cashing checks at a particular store and that Heaslet had again started making methamphetamine. Heaslet contends that the affidavit does not comply with Ark. R. Crim. P. 13.1(b) and is facially deficient for three reasons: (1) there is no reference to the time when the contraband was allegedly in his possession; (2) there is no reference to the place the contraband was seen; (3) there was no basis given for the confidential informant’s knowledge or reliability.
It is the uniform rule that some mention of time must be included in the affidavit for a search warrant. Hartsfield v. State, 76 Ark. App. 18, 61 S.W.3d 190 (2001). Although we have reversed cases based upon the failure of the search warrants to mention time, Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985), and Ulrich v. State, 19 Ark. App. 62, 716 S.W.2d 777 (1986), we have also held that time can be inferred from the information in the affidavit. See Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983); Fouse v. State, 73 Ark. App. 134, 43 S.W.3d 158 (2001). Time is crucial because a magistrate must know that criminal activity or contraband exists where the search is to be conducted at the time of the issuance of the warrant. Hartsfield v. State, supra. It is clear that the time that is critical is the time during which the criminal activity was observed. Id. Because most of the dates provided in the affidavit only reference the date the officer received a report and not when the activity was observed, these references are insufficient to establish á time frame during which the activities occurred. For a search warrant to issue, evidence, either direct or circumstantial, must be provided to show that the contraband or evidence sought is likely in the place to be searched. Yancey v. State, supra. Standing alone, circumstantial evidence that the suspect may be a drug dealer is not circumstantial evidence that anything is in his home. Id. Therefore, paragraphs five and six of the affidavit do not state that any criminal activity or contraband items were seen at Heaslet’s house and we cannot find that a link exists to support a search of his home.
When an affidavit for a search warrant is based, in whole or in part, on hearsay, the affiant must set forth particular facts bearing on the informant’s reliability, and shall disclose, as far as practicable, the means by which the information was obtained. Ark. Rule Crim. P. 13.1(b). A search warrant is flawed if there are no indicia of the reliability of the confidential informant. Fouse v. State, 73 Ark. App. 134, 43 S.W.3d 158 (2001). Furthermore, the conclusory statement, “rehable informant,” is not sufficient to satisfy the indicia requirement. Id. There is no fixed formula for determining an informant’s reliability. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). Factors to be considered in making such a determination include whether the informant’s statements are (1) incriminating; (2) based on personal observations of recent criminal activity; and (3) corroborated by other information. Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). Additionally, facts showing that the informant has provided reliable information to law enforcement in the past may be considered in determining the informant’s reliability in the present case. See Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998); Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Failure to establish the veracity and bases of knowledge of the informant, however, is not a fatal defect if the affidavit viewed as a whole “provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.” Ark. R. Crim. P. 13.1(b).
The affidavit in issue here makes no mention of the informant’s reliability. Because there are other factors that make the affidavit deficient, the affidavit viewed as a whole does not provide a substantial basis for a finding of reasonable cause to support a search warrant.
For the foregoing reasons, we hold that the circuit court erred in denying Heaslet’s motions to suppress. Accordingly, we reverse and remand with directions that all the evidence seized from Heaslet’s arrest be suppressed and that he be allowed to withdraw his guilty plea pursuant to Ark. R. Crim. P. 24.3(b).
Reversed and remanded.
Hart and Neal, JJ., agree. | [
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Wendell L. Griffen, Judge.
This is an appeal from an order granting custody of K.E.E., d.o.b. 10/15/96, to appellees Leslie and Robert McCracken. The case began as a contested adoption proceeding. The McCrackens sought to adopt K.E.E, who is Leslie’s great-niece. Appellant Margaret Smith, who is also K.E.E.’s great-aunt, had been named as the child’s guardian by virtue of unlimited letters of guardianship from Indiana. Smith, who did not have full-time physical custody of the child, contested the adoption and counterclaimed to adopt K.E.E. Because the circuit court determined that the notice to the biological parents was procedurally infirm, it denied both adoption petitions, treated the matter as a custody issue, and awarded custody to the McCrackens. Smith now appeals, arguing that because the case began as an adoption proceeding, the circuit court, sitting in probate, had no jurisdiction to enter an award of custody. We disagree and affirm the order granting custody of K.E.E. to the McCrackens.
Smith was appointed as K.E.E.’s guardian on December 10, 1999. Subsequently, the child stayed alternatively with her biological mother, Smith, and the McCrackens. On August 14, 2000, Smith executed a document stating that she transferred “temporary custody” to Leslie because it was unsafe for the child to be in the mother’s custody.
Leslie married appellee Robert McCracken in June 2002, and they filed a petition for adoption in Ashley County, Arkansas, on October 14, 2004. Attached to the petition was an affidavit in which the McCrackens stated: “[W]e need to have an order of custody so we can legally be responsible for the child.” They further indicated in the same paragraph their desire to adopt K.E.E.
In Smith’s answer to the adoption petition, she asserted that she was K.E.E.’s guardian and that she consented to the adoption of K.E.E. by the child’s maternal grandfather (who never filed a petition to adopt). She requested that the court deny the Mc-Crackens’ petition to adopt. A temporary hearing was conducted to determine in whose custody K.E.E. should remain until the hearing on the adoption petition was conducted. (At the time of the hearing, K.E.E. was staying with her mother.) During this hearing, the circuit court noted that a petition for adoption had been filed and that a request had also been made “for a hearing on custody.” The court stated that it set the temporary hearing on custody pending the final hearing only. At this point, Smith objected, asserting that because the matter was a probate matter, the “probate court,” being a court of limited jurisdiction, could not deal with custody issues. The court overruled the objection, citing to Amendment 80 of the Arkansas Constitution and to its belief that it could deal with temporary custody pending a final hearing in the case.
The court recognized the parties’ August 14, 2000 custody agreement and continued custody in appellees. In response, Smith filed a counterclaim for adoption, asserting that the biological mother had consented to Smith’s adoption of K.E.E.
The final hearing was held on May 10, 2005. Smith did not at this point challenge the circuit court’s jurisdiction to determine the issue of custody. The court heard testimony from various witnesses regarding who should be K.E.E’s legal custodian and whether either of the petitions to adopt should be granted. The court first responded to the parties in a November 3, 2005 letter, stating that it considered treating the matter as a guardianship, but due to the procedural infirmities regarding notice to the biological parents, it treated the matter as a custody issue. In its final order, the court dismissed both adoption petitions due to the procedural infirmities and expressly elected to treat the matter as a custody matter. It granted custody to the McCrackens and granted visitation to Smith.
The sole issue now before us is whether the circuit court had jurisdiction to enter a custody order once it dismissed the adoption petition. We affirm the order awarding custody to the McCrack-ens based on the express terms of Amendment 80, Administrative Order Number 14, and our previous holding in Moore, v. Sipes, 85 Ark. App. 15, 146 S.W.3d 903 (2004).
Smith’s main argument is that Amendment 80 to the Arkansas Constitution did not confer upon a trial court, sitting in the probate division, the “expanded jurisdiction” to treat a matter that began as an adoption matter as a custody issue. For support of this proposition, she cites to First National Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005) (reversing where the trial court improperly submitted an equitable issue to the jury because Amendment 80 did not alter the scope of a party’s right to a jury, which is limited to cases at law), and Arkansas Professional Bail Bondsman Licensing Board v. Frawley, 350 Ark. 444, 88 S.W.3d 418 (2002) (reversing where the circuit court enjoined a State licensing board, where no court of equity prior to Amendment 80 would have had the power to enjoin the board).
Smith correctly notes that the statute that defines the jurisdiction of probate proceedings includes adoption determinations but not custody proceedings. See Ark. Code Ann. § 28-1-104 (Repl. 2004). She also correctly notes that nothing under the adoption code, at Arkansas Code Annotated section 9-9-101 et seq., authorizes a circuit judge, sitting in the probate division in an adoption case, to make an award of custody if the adoption proceeding fails. Thus, Smith argues that because Amendment 80 did not expand the jurisdiction of probate courts, because probate courts are not expressly authorized to make custody determinations, and because adoptions are probate matters, the circuit court had no power to take any further action in this case once it dismissed the adoption petition. She asserts that “once the adoption proceedings were dismissed, the case was over.”
We disagree with Smith’s restrictive and erroneous characterization of the powers that may be exercised by a circuit court following Amendment 80. Amendment 80 merged in Arkansas what were once chancery and circuit courts into circuit courts, so that any circuit court would thereafter have jurisdiction “over all matters previously cognizable by Circuit, Chancery, Probate, and Juvenile Courts.” See Amend. 80 § 19(B)(1) (emphasis added). Amendment 80 § 6(A) provides that circuit courts are established as the trial courts of original jurisdiction of all justiciable matters not otherwise assigned pursuant to the Arkansas Constitution. Section 6(B) of this same amendment allows the division of the circuit court into subject-matter divisions and provides that any judge within the circuit may sit in any division.
In turn, Administrative Order Number 14 regulates the administration of circuit courts and established the following subject matter divisions: criminal, civil, juvenile, probate, and domestic relations. See Admin. Order No. 14(1)(a). This order defines “probate” to include adoptions and defines “domestic relations” to include custody. See id. However, Order 14(1) (a) also states:
the designation of divisions is for the purpose ofjudicial administration and caseload management and is not for the purpose of subject-matter jurisdiction. The creation of divisions shall in no way limit the powers and duties of the judges to hear all matters within the jurisdiction of the circuit court.
(Emphasis added.)
We are convinced that the purpose of Amendment 80 was to eliminate the artificial distinctions regarding a circuit court’s jurisdiction that Smith would have us reimpose. Pursuant to Amendment 80, circuit courts simply have added to their already existing jurisdiction as courts of law the equitable jurisdiction that chancery courts held prior to adoption of the amendment. See Cruthis, supra. As the Arkansas Supreme Court stated in regard to the passage of Amendment 80: “Jurisdictional lines that previously forced cases to be divided artificially and litigated separately in different courts have been eliminated.” Id. at 533, 203 S.W.3d at 91.
In other words, a circuit court may now exercise any act of jurisdiction that either a court of law or equity could have exercised prior to Amendment 80, and further, the designation of an action as a specific type of action does not prevent a circuit court from hearing any matter within the court’s jurisdiction that is properly raised to the court. In this case, the issue of custody was before the circuit court because the McCrackens requested custody of K.E.E., as well as the right to adopt her. Accordingly, the circuit court had the power to determine custody of K.E.E. after it dismissed the adoption petitions.
While Smith is correct that probate jurisdiction does not expressly include the power to make custody determinations, her argument ignores the fact that the circuit judge was not limited to probate jurisdiction in determining what the best interest of K.E.E. Rather, using its jurisdiction to determine adoption issues, it dismissed both adoption petitions. The dismissal of the adoption petitions did not somehow divest the circuit court of its jurisdiction to make the necessary custody determination regarding K.E.E., where the trial court recognized that the custody issue had been raised by the McCrackens in the affidavit attached to their petition for adoption, and where the trial court heard evidence that would allow it to make a custody determination. Clearly, the same evidence relating to whether either adoption petition should be granted based on the best interest of the child would also support a custody determination.
While our courts have not addressed the precise situation that we have in the instant case, this court has examined the relationship of Amendment 80 to probate and custody cases, in Moore v. Sipes, supra. We find that case to be dispositive of the issue in the instant case. In Moore, we explicitly rejected the argument that the “probate court” had no jurisdiction to enter a guardianship order because the case should have been determined as a juvenile dependency-neglect case or as a custody case. We noted:
Since the implementation of Amendment 80, circuit court jurisdiction includes all matters previously cognizable by circuit, chancery, probate, and juvenile court. . . . Probate proceedings, as well as juvenile and chancery proceedings, often concern matters of child custody and parental rights. Custody suits and guardianship petitions involving minors are similar in that each may limit parental rights and may award custody based on the best interest of the child. . . . Thus, custody determinations may be made in both types of cases. In numerous instances, our courts have made what amount to custody determinations involving minors in the context of a guardianship proceeding.
Id. at 20, 146 S.W.3d at 906-07.
The same reasoning applies here — if custody determinations may be made in conjunction with guardianship proceedings, they may just as readily be made in conjunction with adoption proceedings. Like guardianship proceedings, adoption proceedings are probate proceedings that necessarily impact matters of custody and parental rights — if an adoption petition is granted, a parent’s rights with regard to that child are forever foreclosed. However, if the adoption petition fails, as in this case, the circuit court must ultimately determine where the child is to live and which parties are responsible for the child’s well-being.
Because a circuit court has jurisdiction to determine custody issues, it is not required to keep a child and the would-be custodians in legal limbo until they file yet another petition requesting a custody determination. The dismissal of the adoption petitions in this case did not resolve the issue of the best interest of the child because the prior custody order the circuit court had entered in this case was a temporary order. Just as a circuit court retains jurisdiction over custody or visitation issues in a divorce case, see Stellpflug v. Stellpflug, 70 Ark. App. 88, 14 S.W.3d 536 (2000), the circuit court here retained jurisdiction over the custody issue that had not been resolved. It then exercised its jurisdiction to enter a custody order which, on the merits, is not challenged in this appeal.
Finally, the Cruthis case and Frawley case cited by Smith do not compel a different result. Those decisions merely stand for the proposition that after Amendment 80, a circuit court cannot exercise jurisdiction that no court of law or equity had prior to Amendment 80. Unlike those cases, the circuit court in this case was not attempting to exercise a power that no court of law or equity did not possess prior to Amendment 80. In denying the adoption petition, the circuit court here clearly exercised a power that probate courts had prior to Amendment 80; in determining custody, the circuit court clearly exercised a power that chancery courts exercised prior to Amendment 80. Via Amendment 80, a circuit court is now authorized to exercise either power or both, as the circuit court properly did here.
Affirmed.
Vaught and Roaf, JJ., agree.
The court also erroneously stated that “the legislature has specifically given the probate court the authority to grant visitation.” The error is two-fold. First, there are no longer any “probate courts” in Arkansas after the passage of Amendment 80, and second, probate proceedings, as defined under Arkansas law, do not expressly encompass visitation or custody determinations. See Ark. Code Ann. § 28-1-104 (Repl. 2004). Nonetheless, we affirm because the circuit court otherwise had jurisdiction to make the custody determination in this case.
Smith cursorily asserts that if the circuit court had jurisdiction to treat the issue as a custody issue, then the court should have awarded custody to her. However, she offers no support for this argument, and it is not part of her argument in her single-point heading. Hence, we do not treat it as a properly-preserved challenge to the sufficiency of the evidence supporting the circuit court’s order.
If we dismissed the custody order, the temporary order granting custody to the McCrackens and visitation to Smith would be the standing order in this case. Notably, Smith does not now challenge the circuit court’s jurisdiction to enter the temporary order. Further, she consistently requested “all other relief” to which she may be entitled and does not challenge the circuit court’s power to grant her visitation under either the temporary order or the custody order. | [
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Wendell L. Griffen, Judge.
In an order filed May 25, 2005, the Washington County Circuit Court terminated Lyla Benedict’s parental rights to her children; G.B. (born August 31, 1998), T.B. (born November 23, 2001), and D.B. (born March 26, 2004). Appellant appeals from the termination order, contending that the circuit court erred in finding that it was in the children’s best interests to terminate her parental rights. She also argues that the circuit court erroneously allowed hearsay testimony. We hold that the circuit court clearly erred in finding that termination of appellant’s parental rights was in her children’s best interests. Accordingly, we reverse the order terminating her parental rights.
Standard of Renew
An order terminating parental rights must be based upon a finding by clear and convincing evidence that termination of a parent’s rights 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. Ark. Code Ann. § 9-27-341(b)(3)(A) (Supp. 2005). The court must also find one of the grounds outlined in § 9-27-341 (b)(3)(B). In this case, the court based its termination order on subsections (b) (3) (B) (i) and (vii) :
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused 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 return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity ... to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.
(b) The department shall make reasonable accommodations in accordance with the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., to parents with disabilities in order to allow them meaningful access to reunification and family preservation services.
(c) For the purposes of this subdivision (b)(3)(B)(vii), the ability or incapacity to remedy or rehabilitate includes, but is not limited to, mental illness, emotional illness, or mental deficiencies[.]
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Causer v. Arkansas Dep’t of Human Servs., 93 Ark. App. 483, 220 S.W.3d 270 (2005). It is not a challenge to find a case stating that “a parent’s interests in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause of the Fourteenth Amendment.” Troxel v. Granville, 530 U.S. 57, 77 (2000) (Souter, J., concurring) (citing Washington v. Glucksberg, 521 U.S. 702 (1997); Santosky v. Kramer, 455 U.S. 745 (1982); Parham v. J.R., 442 U.S. 584 (1979); Quilloin v. Walcott, 434 U.S. 246 (1978); Wisconsin v. Yoder, 406 U.S. 205 (1972); Stanley v. Illinois, 405 U.S. 645 (1972); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923)).
However, courts are not to enforce parental rights to the detriment or destruction of the health and well-being of a child. Causer v. Arkansas Dep’t of Human Servs., supra. A heavy burden is placed upon a party seeking to terminate the parental relationship, and the facts warranting termination must be proven by clear and convincing evidence. Id. Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the allegation sought to be established. Id. This standard of proof reduces the possibility that a parent’s rights are terminated based on “a few isolated instances of unusual conduct or idiosyncratic behavior” and “impresses the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate terminations will be ordered.” Santosky, 455 U.S. at 764-65 (internal quotations omitted).
We do not reverse the circuit court’s finding of clear and convincing evidence unless that finding is clearly erroneous. Causer v. Arkansas Dep’t of Human Servs., 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. Yarbrough v. Arkansas Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006). This, however, does not mean that the appellate court is to act as a “super factfinder,” substituting its own judgment or second guessing the credibility determinations of the court; we only reverse in those cases where a definite mistake has occurred.
The law presumes that a fit parent acts in the best interests of his or her children. Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). While there is still reason to believe there can be a positive, nurturing parent-child relationship, the law favors preservation, not severance, of natural familial bonds. Santosky v. Kramer, supra. When DHS and the courts become involved in a child’s life, the purpose is not to sever the familial bonds but to assure that the child receives the guidance, care, and control necessary to serve his or her physical, emotional, and mental welfare. Ark. Code Ann. § 9-27-302(2) (Repl. 2002). Once a child has been adjudicated dependent-neglected, there is a presumption that DHS will provide services to preserve and strengthen the family unit. See Ark. Code Ann. § 9-27-327(a)(2) (Supp. 2005) (noting that a party recommending no reunification services has the burden of proving that such services should not be provided).
Termination of parental rights should only be the goal when “the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective.” Ark. Code Ann. § 9-27-341 (a)(3) (Supp. 2005). “Few consequences of judicial action are so grave as the severance of natural family ties. Even the convict committed to prison and thereby deprived of his physical liberty often retains the love and support of family members.” Santosky, 455 U.S. at 788 (Rhenquist, J., dissenting). Once the decision is made to terminate a parent’s rights, many resources that originally went to preserving the family unit go to making the separation of parent and child permanent. Lassiter v. Department of Soc. Servs., 452 U.S. 18 (1981) (Blackmun, J., concurring). For these reasons, termination proceedings are not meant to be taken lightly.
The fundamental liberty interest of natural parents 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. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.
Santosky, 455 U.S. at 753.
Background Facts
On March 25, 2004, the Fayetteville Police Department called the Arkansas Child Abuse Hotline and reported that appellant had called 911 but had hung up. The officers sent to appellant’s home reported feces on the bathroom floor, urine on the kitchen floor, clothes piled throughout the house, and no food in the house. There were no burners on the stove to prepare food, and gas was leaking into the home. G.B. had several scars on his chest. The next day, Investigator Amber Collins of the Arkansas State Police and DHS Investigator Monika Isenhower visited the home, where they found appellant crying and unresponsive to questions. Appellant’s home was untidy, with clothing piled on the furniture and beds. The one usable bed had no sheets or pillows. Dirty dishes were on the counter and in the sink. Appellant stated in an exasperated tone that she did not know how the house got so dirty and demanded to know how it happened. She also had trouble keeping track of the children in the home. Specifically, she was unaware of G.B.’s whereabouts until friends of appellant showed up with him after a trip to the park. DHS took custody of appellant’s three children.
‘On March 30, 2004, appellant voluntarily admitted herself to Washington Regional Medical Center; she was later placed in inpatient treatment at Vista Health, with a preliminary diagnosis of postpartum psychotic depression. The circuit court found probable cause for DHS to exercise custody of the children on March 31, 2004, and the parties stipulated to an adjudication that the children were dependent-neglected on April 23, 2004. In the subsequent adjudication order, appellant was ordered to take her prescribed medications, follow all discharge recommendations of Vista Health, participate in counseling, obtain a drug screen, and follow the DHS case plan.
The record of the review hearing on August 18, 2004, shows that appellant moved into a new, three-bedroom home and that DHS family service worker Trisha Burks had no concerns about the appropriateness of the home. Appellant regularly attended visitations, only missing a couple after she started working a late shift. She had been taking all of her prescribed medications and attending weekly counseling sessions at Ozark Guidance Center (OGC). Appellant also attended parenting classes on her own, but DHS was concerned that the classes were not age appropriate. Burks testified about the favorable impression she received concerning an incident that occurred while she was doing a home visit. During that visit, a neighbor came over and demanded that appellant let her use her van to pick up her husband from work. Appellant told the neighbor that she would be finished doing what she was doing and would then pick him up. The neighbor continued to push the issue, and appellant stood her ground. Burks testified that appellant showed assertiveness in that situation. Burks noted that appellant had done everything DHS had asked her to do and recommended a trial placement at home.
Christina Gupton, G.B. and T.B.’s foster mother, testified that the two children moved into her home on May 5, 2004. At that time, G.B. was withdrawn, distrusting, and spoke in two-word sentences. T.B. was very active and did not sleep through the night. Since that time, G.B. began speaking in full sentences, making eye contact, and initiating conversation. T.B. had calmed down and started sleeping through the night. The court also heard testimony from CASA volunteer Dick Fulton, who had visited Gupton’s home and recommended that the children not be returned to appellant. He wanted more information about appellant’s abilities to cope with the children.
The circuit court did not place the children back into the home, stating that it was not in their best interests. The court noted that the children had made great strides while out of the mother’s care. It recognized that the two older children had special needs and opined that it was inappropriate to place the children in the home to determine whether appellant could care for the children. The court ordered appellant to attend twelve hours of age-appropriate parenting classes, transfer her SSI benefits to the children for support of the children, and follow the other orders of the court.
By the November 4, 2004, review hearing, some of the visitations were taking place at DHS offices, while others were at McDonald’s. Burks testified that there was some concern during a visit at McDonald’s when appellant was letting an aide take care of the children; however, the visits were going well. Appellant had been in compliance with court orders, including completing parenting classes and maintaining a stable household. Burks recommended that John Benedict, appellant’s father, be allowed to supervise visitation. She also had no objection to the children visiting appellant at appellant’s home as long as appellant’s father was there to supervise.
John Benedict testified that he had observed two of the McDonald’s visits and that appellant interacted with her children. He stated that he was willing to supervise the visits. He testified that he visited appellant’s home a couple of days before the hearing and that the home was clean and physically safe.
Appellant testified that she had taken her medications, followed Vista Health’s discharge recommendations, participated in counseling, taken a drug screen, followed the case plan, took twelve hours of parenting classes, received a psychiatric evaluation and followed the recommendations, and called SSI to get the benefits transferred to the children. She opined that her decision-making abilities had improved.
Fulton testified that he visited appellant’s home on October 10, 2004, and that her home was a mess, with many things stacked up. He noted that there was some evidence of dishes being washed but that there was a lot of dirt. He opined that the condition of the home posed a threat to a small child. However, Fulton thought it could be appropriate if appellant’s father supervised the visits at home.
The court ordered that the children remain in DHS custody. It acknowledged that appellant was compliant with the court’s orders; however, it did not believe that appellant reached a point where she could meet the basic needs of her three children. It also ordered an additional nine hours of parenting classes. In the subsequent order, the court allowed appellant’s father to supervise visitations on Sunday afternoons and authorized additional visitation after school on Thursdays if those visits went well.
A permanency planning hearing was held on January 28, 2005. Fulton stated that he visited appellant’s home the previous day and testified that appellant had made tremendous progress since his last visit. While he was concerned that there were a lot of things stacked in closets, he opined that appellant’s home, if maintained, was appropriate for children. He was unsure if appellant could maintain the progress.
Appellant testified that she had attended nine additional hours of parenting classes and had continued counseling. She believed that she could handle her children. On cross-examination, appellant admitted that she had not kept her house clean but that she had been trying to keep it up. She stated that the unsupervised visits had been going well.
Dale Gupton, G.B. and T.B.’s foster father, testified that when he first met G.B., G.B. was a loner, but that G.B. grew out of it. G.B. had been struggling with reading at school, but his teachers had given positive comments about him. T.B. had not been exhibiting any unusual behaviors. He was receiving occupational and developmental therapy at the Richardson Center. Gupton stated that the visits with appellant had gone well, and he had not had any concerns about the children’s behavior when they returned from the visits. Otis Robinson, D.B.’s foster father, testified that D.B. was adjusting to his home and bonding with his foster family. He stated that D.B. does not go to appellant willingly when he is taken to visits and that D.B. is happy to see him when he is picked up from visits.
The court also considered a letter from Joshua Newman, a therapist at OGC, dated January 27, 2005:
In considering the progress of Lyla Benedict during the past seven months of counseling, there are several factors that I am looking at. Objectively, Ms. Benedict has kept her appointments with punctuality and has consistently verbalized an earnest love for her children. On several occasions she has reported the ways in which she is fulfilling the court’s requirements and is following the instructions from the Department of Human Services.
Many of the therapeutic goals developed on the day of her treatment plan have been met. Her acute symptoms are stabilized and she has increased her functioning level. Intellectual functioning appears to be stable, with some cognitive deficits. She has made mixed progress with some of her short-term goals, as evidenced by a limited ability to tie insights from different sessions together. She has shown willingness to process emotional and relational stressors in session, and has vocalized an interest in continuing counseling on a voluntary basis after her court requirements are over.
Subjectively, I have felt a difficulty communicating with Lyla at times and have wondered how well she makes connections between past events and present choices. We have explored relationship issues and she appears to have some defensiveness about her son’s fathers, while also recognizing some of the risky behavior that they have engaged in. Overall, she has become more open and more stable in mood, while making mixed progress on an interpersonal level.
At the end of the hearing, the court changed the goal of the case from reunification to adoption of the children and termination of appellant’s parental rights. The court found that appellant still lacked the ability to maintain a safe home and properly supervise her children. While the court acknowledged that appellant had made progress in obtaining short-term goals, it believed that appellant would be unable to achieve the long-term goals.
DHS and the attorney ad litem filed a joint petition for termination of appellant’s parental rights on February 8, 2005, and the termination hearing was held on April 27, 2005. DHS moved to dismiss the termination petition; however, the ad litem wished to continue with the termination proceeding. The court denied the motion, but it noted that DHS recommended reunification as the goal at the permanency planning hearing and that it was not recommending termination of appellant’s parental rights at that time.
Fulton testified that he continued to monitor visitation between appellant and the children since the permanency planning hearing. He noted that appellant’s home had vacillated between being clean and having a lot of “stuff’ everywhere. He did not observe any serious problems with the children, but he noted that G.C. tended to act out more when appellant was present. Fulton opined that G.C. simply wanted attention. He stated that he was recommending that appellant’s parental rights be terminated, although that was not his recommendation at the permanency planning hearing. He stated that, with appellant only having the children eight hours during the week, he had not seen enough evidence during those periods to justify returning them to her. On cross-examination, Fulton stated that he did not think that G.C. wanting more attention from appellant was a serious problem. He also stated his concern about appellant having custody of the children for a trial period, opining that appellant would need a lot of support in her home to do it. Fulton stated in his recommendations that appellant had not demonstrated the emotional or physical stamina to be a single parent to three boys and that the children play as if they are with “Aunt Lyla” rather than with their mother.
Brian Maniré, counselor at Jefferson Elementary, noted that G.B. attended Jefferson from August 18, 2003, until March 29, 2004. He referenced a letter he wrote dated April 22, 2004, wherein he recommended that G.B. repeat kindergarten. He noted that G.B.’s academic skills were slow to develop and that G.B. had experienced difficulty in the area of social development and work skills. Maniré stated that, from the first week of kindergarten, G.B. was unable to attend to tasks and sit still. G.B. would spit, flip off teachers and other children, and hit people. He called one of the adult aides “the b-word.” Maniré recounted several instances where G.B. would stick his hands down other student’s pants and other instances where he would lick other student’s ears. Maniré stated that appellant always responded to any requests to come talk to school officials; however, he had concerns about appellant’s ability to meet G.B.’s behavioral and academic needs.
Joshua Newman testified that he had been providing appellant with counseling for the previous two months. When he first started counseling her, appellant was going through an adjustment disorder, which Newman described as symptoms of an unstable mood and some disorientation. He also noted high levels of stress. Newman testified that appellant saw possible problems in interpersonal relationships. He noted that appellant would sometimes not answer the questions he asked and that she would have difficulty staying on track with the topic. Newman recalled the letter that he wrote to the court in January 2005. Regarding his statement about appellant’s mixed progress with short-term goals, Newman stated that appellant was growing in her sense of stability; however, there were some areas in boundaries and relationships where he did not see appellant gain awareness of some of the problems she was having. He opined that her severe symptoms in March 2004 were triggered by a combination of things, including a physical illness that occurred surrounding birth complications and the stress of D.B.’s birth. Newman estimated appellant’s GAF score to be 68. Her initial score was 55. Newman believed that appellant had the necessary skills and abilities to function as an independent adult, but he did not know if she had the skills and abilities to be an effective parent.
On cross-examination, Newman noted that he did not continue with Vista Health’s diagnosis of postpartum depression. He also no longer felt that appellant met the criteria for an adjustment disorder. Newman opined that appellant’s ability to handle herself socially depended upon the situation, but that her behavior for the most part was stable and improving. He stated that appellant was at borderline intellectual functioning and that her level of functioning was the same as it was when he first met her.
Richard Back, a clinical psychologist, testified that he met appellant on three different occasions: once for an evaluation of her social security and twice for the present litigation. The first time he saw her, he performed a WAIS intelligence test, which yielded a verbal IQ of 71, a performance IQ of 84, and a full scale IQ of 75. Back saw the results of an IQ test administered earlier that month at OGC, and the results were essentially the same as the one he administered two years prior. Back noted that his review of clinical literature indicated that a surprising number of borderline intelligent people who receive proper parenting training and counseling are capable of improving and providing appropriate parenting to their children. In other words, for people like appellant, Back stated that one should “give her training and then see what happens.” He stated that it was “time to find out if she can do it or not — if she can be an appropriate parent.”
Back stated that psychosis means “losing contact with reality and doing all sorts of bizarre and odd things.” He said that it is important to look at why that person is psychotic, and that psychosis results for one of three reasons: schizophrenia, bipolar disorders, and major depression. Back opined that appellant’s psychosis came from major depression. He stated that when he saw appellant, he saw no evidence of psychotic symptoms and no evidence of depression. He stated that it had been a year since appellant had an acute episode and that appellant had recovered from it. Back acknowledged that removing the children from foster care would be a disruption in their lives, but that the disruption would pay off if the natural parent can do the job. On cross-examination, Back acknowledged that he had never seen appellant with the children and that he could not form an opinion on her parenting without actually seeing her with the children. However, he reiterated his recommendation that the children be placed in the home for a trial period.
Nancy Webb testified that she began treating G.B. on September 17, 2004. She noted that G.B. was under control but a little hyper and anxious when she first saw him. During the diagnostic interview, she learned that G.B. had been oppositional, aggressive, and depressed. While in counseling, they worked on some of the anxieties and stress reduction. Webb opined that, if appellant’s parental rights were terminated, G.B. would be adoptable. However, she stated that she could not make a recommendation as to what is in G.B.’s best interest because she did not know appellant. Regardless of the result, however, Webb recommended that he needed to stay with mental health care, as he could easily slip back into oppositional, aggressive behavior.
Diane Krutcher, a case manager at the Richardson Center, testified that T.B. first entered the Richardson Center in August 2004. She stated that according to a developmental evaluation from the summer of 2004, T.B. had developmental delays and would require rehabilitation. She stated that she had seen problems in T.B.’s speech, problem-solving skills, and fine-motor skills. T.B. was also calmer and was able to ask for what he needed. Krutcher noted that the change could have also been attributable to age; however, she attributed the changes to having a stable environment.
Christina Gupton stated that, after the permanency planning hearing, G.B. had some sleeplessness and regression issues; however, those problems worked themselves out. Gupton stated that some of the behaviors manifested after visits with appellant, although they usually did not happen immediately after the visit. She believed that G.B. anticipated visits with appellant and that his emotional condition was good. T.B.’s behavior had not changed since the previous meeting. Gupton stated that appellant is consistently at McDonald’s to pick up the children for the visits, although recently she had been ten to fifteen minutes late. Occasionally, there would be behavior problems with G.B. during the visits, and one time, he wanted to come “home.”
Otis Robinson testified that, since the permanency planning hearing, D.B. had learned to walk. He noted that D.B. receives physical therapy, and there had been talk about speech therapy down the road. Robinson also noted that D.B. sings a lot, although no one knows what he is singing. Robinson noted that he had been in appellant’s house and that the house is cluttered. He noted that D.B. would often be dirty when he picked D.B. up from the visits. He opined that the home would not be good for D.B. because D.B. could get lost under something while playing with his brothers. Robinson was also concerned because there were people at appellant’s house that he did not know. He noted that D.B. had warmed up to appellant; however, he was still shy about the visits. D.B. had become more familiar with appellant, but he still looks forward to going back with Robinson when Robinson picks him up. On cross-examination, Robinson stated that he and his wife would try to adopt D.B. if appellant’s parental rights were terminated.
Patricia Burks testified that she visited appellant’s home once after the permanency planning hearing. When she saw the home, the condition was appropriate. There were no health or safety concerns, and while the house was cluttered, it looked better than it did originally. She testified that she had never seen the home when it was inappropriate or with any health or safety hazards. She noted that appellant was working two part-time jobs: one at Dollar General, where she worked twelve hours a week; and the other at the Arkansas Democrat-Gazette, where she worked one night a week for three hours. Burks recommended that the children be returned to appellant on a permanent basis and that, if that occurred, appellant’s father would babysit whenever appellant had to work nights and that appellant would quit the night job if necessary. On cross-examination, Burks testified that on the occasion where she visited appellant’s home, the children were well behaved.
Mark Owen, store manager at Dollar General, stated that he had no concerns about appellant’s intellectual functioning ability. He stated that appellant is always punctual for work and always does her tasks. He stated that he had also met appellant’s children and that appellant’s interaction with them is appropriate. He noted one instance where one of the children was about to go to another aisle on their own, to which appellant demonstrated control of that child while holding one of the other children.
John Benedict testified that he had observed all of the supervised visits from the previous November to the termination hearing. He believed that appellant was appropriate with the children. Benedict recalled the FINS petition filed in 2001. He noted that he filed the petition because he was concerned about appellant’s safety and the effect of others being around G.C., who was the only child at that time. He stated that the petition was filed for appellant’s safety and not because of her mental condition. Benedict noted that he owns appellant’s home and that he thought it was appropriate for raising three children. He also stated that he had made provisions for providing housekeeping and day care services for appellant if she received custody of the children. On cross-examination, Benedict testified that, when he filed the FINS petition, he was concerned that appellant would lose her housing. He was also concerned about appellant being influenced by others and appellant not providing regular meals to G.C. Benedict stated that he has continued to be concerned but that he has tried to provide enough support for her and believed that appellant could care for the children long-term.
Appellant testified that she had been going to counseling and following her counselor’s recommendations. She noted that she was taking Klonopin and Piroxican, an anti-inflammatory for her asthma, and stated that her medication helps with her stability and ability to cope. She stated that she had maintained a safe and clean home, although she does get behind on the laundry. She was willing to accept her father’s offer to have someone help her with the house. Appellant testified that she was ready to take her children home and that, if she needed help, she knew where to get it.
On May 25, 2005, the circuit court entered an order terminating appellant’s parental rights to her three children. It found that, despite reasonable efforts by DHS, appellant had not rehabilitated the conditions that caused the children to come into DHS care and that appellant had manifested an incapacity to meet the needs of the children. After noting the circumstances under which the children came into DHS care and recounting the testimony at the termination hearing, the circuit court concluded that appellant had not shown that she could put into daily practice what she learned from her parenting classes and from her counseling; that she could not make proper choices in dealing with interpersonal relationships, social skills, and parenting skills to keep the children safe; and that she continued to struggle financially. The court also found all three children to be highly adoptable.
Discussion
Unfortunately, appellant’s brief is unclear as to her specific arguments. Nowhere in her brief does appellant discuss the specific grounds under subsection (b) (3) (B) that must be proven in order to terminate an appellant’s parental rights. She cites subsection (b)(3)(B)(i), but does not explain how the circuit court erred in finding that despite a meaningful effort by DHS to rehabilitate the home and correct the conditions which caused removal, those conditions had not been remedied. She completely fails to address the circuit court’s ruling that appellant was incapable of remedying the conditions that caused removal of the children from her home. Further, in her main brief, appellant only states regarding the statutory bases for termination: “The ad-litem failed to prove by a clear and convincing standard that all three of the children were adoptable and the potential harm of the health and safety of the three children by continuing contact with their mother.” No specific argument is made in her main brief regarding the factors outlined in subsection (b)(3)(B); therefore, we consider any argument pertaining to those factors abandoned on appeal. See Marshall v. Madison County, 81 Ark. App. 57, 98 S.W.3d 452 (2003). Even if appellant’s citation to subsection (b)(3)(B)(i) constituted discussion of the subject sufficient for this court to rule upon it, appellant failed to address the court’s finding that she was incapable of remedying the conditions that caused removal. Appellant’s failure to address that ruling makes it unnecessary to consider the grounds under (b)(3)(B). See Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001) (holding that error in the circuit court’s finding that termination was warranted by the mother’s failure to support the children was harmless in light of the record supporting the finding that she failed to remedy the conditions that caused the children to be removed from the home). Therefore, the only preserved argument regarding the circuit court’s decision to terminate appellant’s parental rights is whether that decision was in the best interests of the children.
Nevertheless, we reverse the order terminating appellant’s parental rights. An overwhelming majority of the termination cases that come before this court involve parents who could not sustain efforts to remedy those problems that caused DHS to be involved in their cases or parents who manifest extreme indifference to the health, safety, and welfare of their children until the termination of their rights becomes imminent. Appellant does not fit either category. The evidence shows that she was having a psychotic episode when DHS took the children into their custody. Yet, the record shows that since that time, appellant has made consistent efforts to improve her parenting skills and get to a point where she can raise her children despite her mental deficiencies.
The Arkansas Code instructs that when considering the best interests of the children, the circuit court shall consider the likelihood that the children will be adopted and the potential harm that may arise from returning the children into the parent’s custody. See Ark. Code Ann. § 9-27-341 (b)(3)(A). The circuit court heard testimony that two of the three children were adoptable. However, both DHS and Back recommended that the court place the children in appellant’s home before making conclusions about appellant’s parenting ability. Fulton was the only person at the termination hearing who explicitly recommended that appellant’s rights be terminated; however, he based his opinion on simply not seeing enough evidence to justify returning the children to appellant’s custody. Meanwhile, appellant’s mental healthcare providers testified that appellant was overcoming her mental deficiencies to the point where she deserved a chance to be a parent to her children. Back opined that appellant needed to at least be given a chance to demonstrate her parenting abilities before the circuit court reached a decision regarding her parental rights. Finally, appellant made sincere efforts to comply with every order of the court. The only evidence of appellant’s failure to comply with the court’s orders was the evidence that appellant would sometimes neglect her housekeeping duties. However, there was no evidence that the condition of her home reached the dangerous level that warranted DHS intervention in March 2004.
The ad litem relies on several cases to support her argument that the circuit court’s ruling should be affirmed; however, none of them are persuasive. First, she cites Crawford v. Arkansas Department of Human Services, 330 Ark. 152, 951 S.W.2d 310 (1997), and Malone v. Arkansas Department of Human Services, 71 Ark. App. 441, 30 S.W.3d 758 (2000), for the proposition that a court can properly consider improvement in the children while in foster care in its decision to terminate parental rights. Indeed, appellant’s children showed improvement while in foster care. However, in both Crawford and Malone, the parents were incarcerated for significant periods of time and did little to comply with the orders of the court. That is not the case here. In addition, the circuit court never had an opportunity to see if appellant could maintain the progress made while the children were in foster care once they were returned to her care. If the ad litem’s reliance on these cases is followed, then a parent’s rights could be terminated simply because others can take better care of the children.
Next, the ad litem notes our decision in S. v. Arkansas Department of Human Services, 61 Ark. App. 235, 966 S.W.2d 919 (1998). Like appellant here, the mother in S. had an IQ in the mid-70s, and DHS was involved in the case due to environmental neglect. However, the parent in S. was resistant to the attempts to instruct her on meeting her children’s needs. Appellant has been nothing but willing to learn.
The ad litem cites Cassidy v. Arkansas Department of Human Services, 76 Ark. App. 190, 61 S.W.3d 880 (2001), where the lower court found the parent to be unwilling and unable to care for her children. The court in that case also heard testimony that the parent’s efforts to complete the case plan were insincere. Here, the evidence did not show that appellant was unable and unwilling; it only showed that she would need help in caring for the children — help that many others, including DHS, were willing to provide. Further, there is no evidence that appellant’s efforts to comply with the case plan were insincere.
Finally, the ad litem cites J.T. v. Arkansas Department of Human Services, 329 Ark. 243, 947 S.W.2d 761 (1997). There, the child testified that she did not feel comfortable around the mother, who was bipolar and had a drinking problem. The mother candidly admitted at the termination hearing that she was not ready to care for her child. Finally, the therapist could only recommend gradual integration of the child into the parent’s home. The present case is clearly distinguishable. The children were comfortable with appellant, and appellant testified that she was ready to take the children into her home and that if she needed help, she knew where to go. Further, while the lower court in J.T. was unwilling to allow for the gradual integration of the child into the parent’s home, there had been two years between DHS filing the petition for emergency custody and the order terminating the parent’s rights. Here, the length of time was only fourteen months. While fourteen months is more than the requisite time before a termination order can be entered, we do not interpret our statutes to mandate termination of parental rights as soon as the children have been out of their parent’s custody for over twelve months.
Clearly, the record shows that appellant was initially incapable of caring for her children and that her children were at risk. Throughout DHS’s involvement, appellant showed marked progress in her ability to provide a stable home. We hold that on this record, where appellant has by all accounts cooperated with the orders of the court, benefitted from the services provided by DHS, and shown objective improvement to the benefit of the children, the circuit court clearly erred in terminating appellant’s parental rights. Therefore, we reverse the order terminating appellant’s parental rights and order the circuit court to continue reunification services.
We conclude with a comment about the performance of the attorneys in this case. As previously stated, the brief filed on appellant’s behalf has not been helpful. Much of the argument reads more like a legal commentary on the proceedings rather than an argument supporting reversal.
We are even more disappointed with the attorneys for DHS and for the children. “A termination of parental rights is both total and irrevocable. . . . [I]t leaves the parent with no right to visit or communicate with the child, to participate in, or even to know about, any important decision affecting the child’s religious, educational, emotional, or physical development.” Lassiter, 452 U.S. at 39 (Blackmun, J., dissenting) (footnote citation omitted); see also Ark. Code Ann. § 9-27-341 (c)(1). Despite the seriousness of a termination proceeding, DHS’s attorney and the attorney ad litem treated the proceedings casually. Both DHS and the ad litem filed a termination petition, then counsel for DHS stood on the sideline while the ad litem carried the ball, despite the fact that DHS maintained the position that termination of appellant’s rights was not warranted in this case. Once termination proceedings were complete and appellant filed her appeal, counsel for DHS continued to distance themselves from the proceeding by opting not to file a brief in this case. This raises the impression that counsel for DHS did not view her role as advocate with the gravity that a termination of parental rights would seem to indicate.
Reversed and remanded.
Vaught and Roaf, JJ., agree.
The circuit court also terminated the parental rights to G.B.’s father and D.B.’s putative father. Those dispositions are not relevant to this appeal. Accordingly, information about those two individuals are not recounted here.
The circuit court did not cite the Arkansas Code provisions in its order, and appellant only cites subsection (b)(3)(B)(i) in her argument.
Newman explained that the GAF, or global axis of functioning, is a scale from the DSM-IV. The scale ranges from 0 to 100, with 100 being excellent and a level at which few people function. As one goes down the scale, one will have a decreased ability to function on a daily level. Newman stated that a person in need of residential treatment would have a GAF of about 50.
Back explained that the verbal IQ tests a person’s ability to utilize language, define words, understand spoken sentences, do arithmetic problems in his or her head, and understand the connection between similar words; whereas, the performance IQ has more to do with coordination.
For example, rather than hitting someone and saying,“Read me this book,” he would come up to a person and say, “Would you please read me this book?”
We do not know whether “home” referred to the foster home or elsewhere.
in her reply brief, appellant states:
The plain language of the statute provides that the court must find by clear and convincing evidence that termination is in the child’s best interest, and that despite meaningful efforts by DHS to rehabilitate the home and correct the conditions which caused removal, the conditions have not been remedied. In this case, neither the mother was proven unfit or was it proven that it in [sic] was in the children’s best interests to terminate the parental rights. In fact overwhelmingly the evidence showed the mother had remedied the conditions which caused removal.
Appellant’s Reply Brief at Arg.2-3. This is the first place on appeal that appellant has argued that she had remedied the conditions which caused removal. This court does not address arguments made for the first time in a reply brief. Ayala v. State, 365 Ark. 192, 226 S.W.3d 766 (2006); Maddox v. City of Ft. Smith, 346 Ark. 209, 56 S.W.3d 375 (2001).
We can reverse the termination of appellant’s parental rights without addressing the grounds under subsection (b)(3)(B). In Conn v. Arkansas Department of Human Services, 79 Ark. App. 195, 85 S.W.3d 558 (2002), the circuit court terminated the appellants’ parental rights solely based on the ground that their parental rights had been terminated to other children, a ground for termination under subsection (b)(3)(B)(ix)(a)(4). This court reversed because the circuit court failed to consider the child’s best interest, as required by subsection (b)(3)(A).
Webb testified that G.B. was adoptable, and Robinson testified that, if appellant’s parental rights were terminated, he and his wife would like to adopt D.B. No testimony was heard regarding whether T.B. was adoptable.
The circuit court seemed to also rely on the prior FINS petition filed in the case; however, we note that G.B. was never removed from the home (contrary to the circuit court’s assertions) and the FINS case was eventually closed.
While we do not address appellant’s hearsay arguments, we note that we only review errors that occur at the termination proceeding. See Lewis v. Arkansas Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005) (explaining in the context of a no-merit appeal that this court is precluded from reviewing adverse rulings from the adjudication, review, or permanency-planning hearings). | [
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John B. Robbins, Judge.
Appellant Franklin Harper sustained a compensable back injury while unloading a truck for appellee Hi-Way Express on January 2, 1992. Temporary total disability benefits and certain medical expenses were paid through May 25, 1992, at which time Hi-Way Express terminated compensation. Mr. Harper contended that he was entitled to additional temporary total disability benefits through September 7, 1993, and that he had a permanent impairment of either 5% or 10% to the body as a whole. In addition, he sought wage-loss disability in the amount of 50%. The Commission denied Mr. Harper’s claim in its entirety, finding that he failed to prove any entitlement to temporary total disability benefits beyond May 25, 1992. The Commission also ruled that any impairment rating was not supported by objective and measurable findings as required by Ark. Code Ann. § ll-9-704(c)(l) (Supp. 1993), and that as a result Mr. Harper was not entitled to compensation based on his alleged permanent impairment or for wage-loss disability. For reversal, Mr. Harper argues that the Commission’s denial of benefits for a permanent impairment is not supported by substantial evidence and resulted from a misapplication of the law. In addition, he contends that as a result of this erroneous ruling the Commission erred in refusing to consider wage-loss disability.
When reviewing decisions from the Workers’ Com pensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if supported by substantial evidence. Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980). A decision by the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).
Mr. Harper’s first argument on appeal attacks the Commission’s determination as to permanent impairment, and relies upon the opinions of Drs. Ronald Harris and Barry Cutler. Dr. Harris treated Mr. Harper and opined that he suffered from a 10% disability, while Dr. Cutler assigned a 5% permanent impairment rating. The examination conducted by Dr. Cutler included a positive straight leg raise. The examination conducted by Dr. Sheldon Meyerson, a neurosurgeon who reported to Dr. Harris, also included a positive straight leg raise. Mr. Harper asserts that these opinions were based upon objective and measurable findings and should have been accepted by the Commission.
The applicable portion of Ark. Code Ann. § 11-9-704(c)(1) (Supp. 1993) provides that “[a]ny determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” In Taco Bell v. Finley, 38 Ark. App. 11, 826 S.W.2d 313 (1992), this court interpreted the language of the statute and determined that the word “objective” meant based on observable phenomena or indicating a symptom or condition perceived as a sign of disease by someone other than the person afflicted. In Reeder v. Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992), we held that “determination” as used in the statute refers to the Commission’s determination of physical impairment and that the statute prohibits such a determination unless the record contains supporting “objective and measurable physical or mental findings.”
In the case at bar, the Commission (which adopted the ALJ’s opinion as its own) concluded that Mr. Harper failed to prove by a preponderance of the credible medical evidence that he is entitled to permanent partial disability benefits or wage-loss benefits. It is not clear as to what the findings of the Commission were which could constitute a basis for this conclusion. The portion of the ALJ’s opinion which addresses permanent disability benefits quotes from two medical reports. The first, written by Dr. Cutler on September 7, 1993, stated the following:
If I must give a percentage of rating, in view of the paucity of objective findings, I would give him a 5 percent rating.
The other medical report was prepared by Dr. Harris on November 5, 1993, and stated:
Mr. Harper remains totally disabled for his previous occupation as a truck driver as well as any non-sedentary work that requires no bending, lifting, pulling or pushing. He has approximately 10% disability to the body as a whole, accounting for his low back limitation and pain.
The ALJ then concluded with this statement:
After reviewing the other medical documents and in considering the provisions of A.C.A. § ll-9-704(c)(l), I find that the ratings assigned to the claimant by Dr. Cutler and Dr. Harris are not based upon objective and measurable findings.
A fair reading of this sentence is that the Commission disregarded the reports and opinions of these medical doctors because the Commission does not consider positive straight leg raises to constitute objective physical findings. If this is what the Commission did, it is in error. We held in Taco Bell v. Finley, supra, that “observations made by a doctor as a result of range of motion tests qualify as ‘objective physical findings’.” Although the Commission may have intended to mean something other than what we have interpreted its statement to say, we can arrive at no other reasonable interpretation.
We hold only that Ark. Code Ann. § ll-9-704(c)(l) does not require that either the opinion of Dr. Cutler or Dr. Harris be disregarded by the Commission. This case must be remanded to the Commission for further proceedings consistent with this opinion.
Reversed and remanded.
Rogers, J., concurs. | [
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John Mauzy Pittman, Judge.
This appeal is from a judgment entered by the Pulaski County Chancery Court that awarded appellee judgment on its complaint for foreclosure and also granted it judgment on all counts of the appellants’ counterclaim. Appellants assert eleven points on appeal. We find these points to be without merit and affirm.
In 1991, appellant Robert Kinkead owned an insurance agency known as the Kinkead Agency. Appellee, Union National Bank, made available financing to Kinkead’s insurance customers for their insurance premiums. Under this arrangement, Kinkead submitted premium finance notes signed by the insured and guaranteed by the Kinkead Agency to Union. Union then disbursed the loan proceeds to the Kinkead Agency to be used to pay the insurance companies writing the policies.
In July 1991, Union officials contacted Mr. Kinkead and set a meeting date after it discovered that some of the premium finance notes from the Kinkead agency were fraudulent. Neither Kinkead nor his wife, appellant Virginia Kinkead, attended the meeting or any of the subsequent meetings with the Union officials relating to this matter. Instead, attorney Webster Hubbell appeared on behalf of Kinkead but stated that he was there as a friend and not as an attorney. After the first meeting, it was decided that Kinkead would be given some time to arrange financing to pay off the notes owed to Union.
Kinkead was unable to procure outside financing, and at Hubbell’s request, Union agreed to refinance the money it was owed secured by certain collateral. Union then sent Hubbell loan documents for appellants’ execution which included a promissory note in the amount of $96,324.00; a mortgage on real property owned by appellants; and a collateral assignment of a contract for sale between Mr. Kinkead and Stevens-Dell & Associates, Inc. Before appellants executed the loan documents and mortgage, Union filed a criminal referral form regarding Kinkead’s fraud as required by 12 C.F.R. § 21.11. Neither Kinkead nor Hubbell was notified that the criminal referral would be filed. The note and mortgages were signed by both appellants on November 21, 1991. On July 15, 1992, Kinkead pled guilty to bank fraud, and at the pre-sentencing hearing, Kinkead’s attorney represented to the court that Kinkead had made restitution to Union by virtue of the November 21, 1991, note.
On October 15, 1992, Union filed its foreclosure action, contending that appellants failed to make the March 21, 1992, payment due on their note or any other payments required by the note thereafter. Appellants responded and counterclaimed. The central thrust of their counterclaim was that Union induced them to execute the promissory note and mortgages by representing that no criminal action would be taken against Robert Kinkead if the notes were paid by refinancing. They alleged misrepre sentation, breach of fiduciary duty, failure to make disclosures required by the Truth-in-Lending Act, and malice, and requested that the note, mortgages, and collateral agreement be rescinded; that all payments made on such note be returned to them; and that they be awarded punitive damages in the amount of $3,000,000.00. Union denied appellants’ allegations, and it affirmatively pled that the Truth-in-Lending Act did not apply to Union’s transaction with appellants; that the counterclaim failed to state facts upon which relief could be granted; and that the Kinkeads were barred from seeking relief under the doctrine of unclean hands. The matter proceeded to trial, at the conclusion of which the court granted appellee judgment on its complaint and all counts of appellants’ counterclaim and awarded attorney’s fees of $47,995.95. Appellants petitioned the court to amend its judgment, but that motion was deemed denied after thirty days. Appellants then filed their notice of appeal.
Appellants first contend that, because they sought punitive damages from appellee in their counterclaim, the chancellor erred in refusing to sever their counterclaim from appellee’s foreclosure action and transfer it to circuit court. In support of their argument, they rely on Rule 18(b) of the Arkansas Rules of Civil Procedure, which provides that “[t]he trial court may make appropriate orders affecting severance of claims and may transfer claims between courts of law and equity on appropriate jurisdictional grounds.” Appellants also rely on Toney v. Haskins, 7 Ark. App. 98, 109, 644 S.W.2d 622, 628 (1983), where this court stated: “Equity will not ordinarily enforce penalties and it has been held that one who appeals to a court of equity for relief waives the award of punitive damages as a matter of right.”
Although we agree that the chancellor has the power to sever and transfer a claim in an appropriate situation, we find no error in his failure to do so in this case. Regardless of whether a party is entitled to bring an action at law, the mere existence of that right does not deprive the equity court of jurisdiction, unless the legal remedy is clear, adequate, and complete. Weathersbee v. Wallace, 14 Ark. App. 174, 686 S.W.2d 447 (1985). Here, appellants’ counterclaim sought rescission of the promissory note, mortgages, and collateral agreement based on their allegation of fraud and violation of the Truth-in-Lending Act. An action to rescind under the Truth-in-Lending Act is an equi table proceeding. See Bank of Evening Shade v. Lindsey, 278 Ark. 132, 644 S.W.2d 920 (1983). Once a chancery court acquires jurisdiction for one purpose, it may decide all other issues. Pryor v. Hot Spring County Chancery Court, 303 Ark. 630, 799 S.W.2d 524 (1990); see Bright v. Gass, 38 Ark. App. 71, 831 S.W.2d 149 (1992).
Appellants’ second point concerns the chancellor’s refusal to compel Union Bank officials and its former attorney, David Duke, to testify regarding conversations that they held concerning the filing of the criminal referral. During depositions and at trial, appellee asserted that the attorney-client privilege protected these communications from disclosure to appellants. Appellants first contend that appellee did not meet its burden of showing the privilege applied. We disagree.
Rule 502(b) of the Arkansas Rules of Evidence generally provides that “[a] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential . . . communications made for the purpose of facilitating the rendition of professional legal services to the client. . . between himself or his representative and his lawyer or his lawyer’s representative. . . .” An attorney is incompetent to testify concerning any communication made to him by his clients, or his advice thereon, without his client’s consent, and the rule as to privileged communications between attorney and client extends to statements of each to the other. See Norton v. Norton, 227 Ark. 799, 302 S.W.2d 78 (1957). The burden of showing that a privilege applies is upon the party asserting it. Shankle v. State, 309 Ark. 40, 827 S.W.2d 642 (1992).
At trial, Union’s former attorney, Mr. Duke, acknowledged that the criminal referral form was discussed at meetings he held with Union officials and provided appellants with the dates of those meetings. Duke also testified that he was involved as a lawyer for Union and that he met with Union officials concerning the Kinkead matter. We find that this testimony was sufficient for appellee to meet its burden of showing that the privilege applied.
In regard to these same communications, appellants next argue that the communications were excepted from the attorney-client privilege because Arkansas Rule of Evidence 502(d)(1) provides an exception to the attorney-client privilege if the communication is in furtherance of the crime of fraud. Appellants contend that Duke and the Union officials conspired to commit a fraud by delaying the filing of the criminal referral form from late July 1991 until October 14, 1991. Under 12 C.F.R. 21.11 (1995), a national bank is required to “file an OCC Criminal Referral Form ... for any known or suspected criminal violation no later than thirty days after detection of the loss or known or suspected criminal violation.” Appellants argue that appellee’s delav in filing a criminal referral form was a violation of 18 U.S.C. § 371 and 18 U.S.C. § 1005.
We need not discuss these code sections because appellants have not provided this court with any citation to authority or convincing argument explaining how these code sections are applicable to this case. An assignment of error unsupported by convincing argument or authority will not be considered on appeal unless it is apparent without further research that the assignment of error is well taken. Smith v. Smith, 41 Ark. App. 29, 848 S.W.2d 428 (1993); General Elec. Supply Co. v. Downtown Church of Christ, 24 Ark. App. 1, 746 S.W.2d 386 (1988).
Appellants’ final argument concerning the attorney-client privilege is that appellee waived its right to assert its attorney-client privilege when it filed the criminal referral form, discussed the matter with the FBI, and produced a copy of the form for appellants in response to their motion for production of documents. We disagree. It is not the information or the opinion that is privileged, but rather the communication of them to the attorney in whatever form, and neither the requirement that the information also be provided to some other forum nor its divulgence in response will subvert the privilege. Courteau v. St. Paul Fire & Marine Ins. Co., 307 Ark. 513, 821 S.W.2d 45 (1991).
For their third point, appellants contend that the trial court erred in striking their second amended counterclaim, which added a claim based on the Equal Credit Opportunity Act and sought $10,000.00 in actual damages and punitive damages of $4,335,000.00. Rule 15(a) of the Arkansas Rules of Civil Procedure provides that amendments to pleadings shall be allowed in nearly all instances without special permission from the court except where, on motion of an opposing party, the court deter mines either that prejudice would result or that disposition of the cause would be unduly delayed, in which case the court may strike such amended pleading. See Odaware v. Robertson Arial-AG, Inc., 13 Ark. App. 285, 683 S.W.2d 624 (1985). The trial court is vested with broad discretion in allowing or denying amendments. See Cawood v. Smith, 310 Ark. 619, 839 S.W.2d 208 (1992). Here, the pleading was not filed until the day before the trial on the merits of this case began. Appellee argued that the inclusion of this claim at such a late date would require substantial additional research and discovery and would unduly delay the trial, which already had been twice rescheduled. We cannot find that the chancellor erred in holding that appellants’ pleading was untimely and would result in prejudice to appellee.
Appellants’ fourth point concerns the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq. This Act requires a lender to give written notice to the borrower that he has three days following any transaction that results in a mortgage on real property to notify the creditor that he elects to cancel, and, if the notice is not given, the right to cancel continues. See Bank of Evening Shade v. Lindsey, 278 Ark. 132, 644 S.W.2d 920 (1983). In this case, the disclosures under the Act were dated November 21, 1991, but they were not sent for appellants’ signature until November 27, 1991, one day after the three-day expiration period. Appellants therefore argue that the note, mortgage, and collateral agreement should be rescinded because Union did not timely send disclosures as required by the Truth-in-Lending Act.
The chancellor held that the Truth-in-Lending Act was not applicable after finding that all the transactions that led to the lawsuit were of a business nature and not a consumer or personal loan. Business loans are exempted from the Truth-in-Lending Act. See id. Appellants contend the chancellor’s finding that the subject transactions were of a business nature is in error because the undisputed evidence showed Kinkead used the money he obtained from the fraudulent notes for personal expenses.
It is the use of the money, property, or services that is the subject of any underlying credit transaction, and not the nature of the property given as security nor the subjective motivation of the mortgagor, that determines whether the credit transaction is exempt from the requirements of the federal Truth-in- Lending Laws. See Sims v. First Nat’l Bank, 267 Ark. 253, 590 S.W.2d 270 (1979). Where the evidence establishes that the proceeds of a loan were applied primarily to retire a business debt and purchase inventory, the loan is exempt from the Truth-in-Lending Act, and the fact that some checks may have been drawn on the account for personal purposes does not change the nature of the loan at the time it was made. See Winkle v. Grand Nat’l Bank, 267 Ark. 123, 601 S.W.2d 559 (1980), cert. denied, 449 U.S. 880 (1980).
Here, Leslie Wilfong, a Union official, testified that the $96,000.00 promissory note was made to appellants for the purpose of refinancing loans made to the Kinkead’s insurance agency. Even though Kinkead testified that he used funds from the fraudulent notes for his personal use, he represented to the bank that the loans were to be used to finance insurance premiums, and the proceeds from these loans were sent to The Kinkead Agency. “A lender should be able to rely on the sworn statement of a borrower as to his intended use of the loan proceeds. . . .” Briggs v. Capital Sav. & Loan Ass’n, 268 Ark. 527, 531, 597 S.W.2d 600, 603 (1980). An appellate court attaches substantial weight to the chancellor’s findings, and while the appellate court considers the evidence on a chancery appeal de novo, it will not reverse the chancellor unless it is shown that the lower court decision is clearly contrary to a preponderance of the evidence. Id. We cannot say that the chancellor’s finding that the transactions in question were of a business nature is clearly against the preponderance of the evidence.
Appellants’ points 5, 7, and 8 all concern the chancellor’s holding that appellee did not have a duty to disclose to appellants that it was required to file a criminal referral form and that a criminal referral form was in fact filed. Appellants argue that appellee’s failure to advise them that it was required to file the criminal referral form clearly demonstrates bad faith, breach of trust, and breach of fiduciary duty, and that appellee protected its own interests to the detriment of appellants.
In support of their argument, appellants cite Union National Bank of Little Rock v. Farmers Bank, 786 F.2d 881, 887 (8th Cir.1986), where the court stated:
Under Arkansas law, a party may have an obligation to speak rather than remain silent, when a failure to speak is the equivalent of fraudulent concealment. Such a duty of disclosure arises only where special circumstances exist. The duty arises “where one person is in position to have and to exercise influence over another who reposes confidence in him whether a fiduciary relationship in the strict sense of the term exists between them or not.” Absent such special circumstance, or affirmative fraud, a party must seek out the information it desires; it may not omit inquiry and examination and then complain that the other did not volunteer information.
Id. at 887 (quoting Hanson Motor Co. v. Young, 223 Ark. 191, 196, 265 S.W.2d 501, 504 (1954)) (citations omitted).
Although appellants argue that special circumstances existed here that created a duty of disclosure, they do not describe what those circumstances were. This court held in Marsh v. National Bank of Commerce, 37 Ark. App. 41, 822 S.W.2d 404 (1992), that generally the relationship between a bank and the customer is merely that of debtor and creditor and that the party claiming the existence of a confidential relationship has the burden of proving it.
Appellants also argue that Union’s delay in filing the criminal referral form and its foreclosure action demonstrate a breach of trust, breach of fiduciary duty, and bad faith. Specifically, appellants point out that, although Union filed the criminal referral form more than a month before appellants executed their note, mortgage, and collateral agreement to Union, Union made sure “it was ‘fully collateralized’ before any law enforcement agency had time to act” and that Union waited until after appellant was sentenced for his fraud conviction before it filed its foreclosure action.
Appellee admittedly did seek to protect its own interests through its actions. Nevertheless, appellants have not shown that those actions breached any duty owed to appellants or constituted bad faith. Appellants were represented by Webster Hubbell, who testified that he thought Kinkead had committed a crime, that he had contacted a criminal attorney, and that he never questioned Union officials regarding any criminal consequences. He also testified he had no reason to believe that Union had not dealt with appellees in good faith. The chancellor found that the parties dealt at arm’s length and that appellee did not owe them any fiduciary duty. From our review of the evidence, we cannot say these findings are clearly erroneous.
Also in connection with the criminal referral form, appellants contend that the chancellor erroneously determined that there was no evidence to support their allegations that David Duke and Union officials conspired to withhold information from appellants in order to coerce appellants to execute the note, mortgage, and other collateral in favor of appellee. We find no merit to this argument, as we have affirmed the chancellor’s holding that appellee did not have a duty to disclose to appellants that it was required to file the criminal referral form.
For their sixth point, appellants argue that the chancellor erred in finding that there was no evidence presented to show that Union acted with malice or reckless disregard as they alleged in count four. Count four involved appellants’ allegation that Union intentionally overstated the amount that was included in appellants’ promissory note and that it included sums from notes that were not in default nor “improper,” including appraisal costs, attorney’s fees, and title fees. Appellants also contend that Union did not advise them what made up the amounts included in the note until approximately one month after they signed the note and that Union returned payments it received from Kinkead’s insureds on the notes that were not obtained by fraud to the insureds rather than crediting them to the Kinkeads’ note. We agree that no evidence was presented to the trial court to support their complaint.
The undisputed evidence demonstrates that Union was following the directions given it by Hubbell, appellants’ agent, in preparing the note and other collateral. Leslie Wilfong testified that Hubbell decided what the amount of the monthly payment on the note would be, the seventeen-year amortization, and the collateral that would secure the note. Another Union official, Robert Whisnant, testified that, with regard to the amount of the note, Hubbell told him to include all of the notes and late charges in the note balance regardless of whether they were procured by fraud. This testimony was not disputed by Hubbell. There was also evidence that a breakdown of the note was provided to appel lants in December 1991, that they then made several payments on the note after the breakdown was provided, and that it was not until July 1992 that appellants first questioned the amount of the note with appellee. Silence or acquiescence in the contract for any considerable length of time amounts to ratification. Sims v. First Nat’l Bank, 267 Ark. 253, 590 S.W.2d 270 (1979).
Appellants also allege that Union made false representations that induced them to enter into the note and mortgage. Specifically, appellants assert that Hubbell told Kinkead on numerous occasions that he did not think a criminal charge would be filed against Kinkead if he repaid the fraudulent notes. There is no evidence, however, that any such representations were made to Hubbell or appellants by Union officials or its attorneys. In fact, Hubbell admitted in his deposition that no such representations were made to him and that he never discussed any criminal charges with the Union officials or its attorney although he thought Kinkead had committed a crime. Appellants admitted that they never had any discussions with Union officials and relied entirely on Hubbell to represent them.
There is also no merit to appellants’ claim that Union forced them to pledge their house as collateral. The undisputed evidence at trial was that Hubbell, appellants’ agent, offered the mortgage on their house to Union in order to obtain financing to repay the fraudulent loans.
Appellant Virginia Kinkead also argues that the note and mortgage should be set aside as to her because she was not liable on the fraudulent notes to the bank. The supreme court addressed a similar argument in Sims v. First National Bank, supra: “A mortgage by a married woman to secure her husband’s debts, whether they be existing debts or debts to accrue, is valid and enforceable. Consideration for the mortgage need not pass to the wife as consideration to the husband is sufficient.. ..” 267 Ark. at 263, 590 S.W.2d at 276 (citations omitted).
We do not address appellants’ contention that the chancellor erred in holding that over-collateralization is not a defense to the note because appellants have not cited any authority or made a convincing argument in support of this contention. See Smith v. Smith, 41 Ark. App. 29, 848 S.W.2d 428 (1993); General Elec. Supply Co. v. Downtown Church of Christ, 24 Ark. App. 1, 3, 746 S.W.2d 386 (1988). Furthermore, the evidence reflected that the amount of collateral Union received on its note was the amount offered by Hubbell on behalf of appellants. Therefore, appellants are not in a position to challenge the amount of collateral appellee obtained from them.
Appellants’ ninth point concerns the chancellor’s award of $47,995.95 in attorney’s fees to appellee. At the conclusion of the trial, appellee’s witness Wilfong testified that this amount had been paid by appellee to its attorneys through October 19, 1993. Appellant objected to the court’s consideration of attorney’s fees and requested a separate hearing. The chancellor denied appellants’ request but stated a motion for reconsideration could be filed and ordered appellee to supply appellants with a copy of its billing statements. Appellants then filed a motion to amend the judgment, which was deemed denied after thirty days.
Appellants contend that, even if Union was entitled to receive a reasonable attorney’s fee on its foreclosure action, it was not entitled to receive a fee for defending appellants’ counterclaim because their claims dealt primarily with federal statutes and tort. The supreme court held in Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992), that the Arkansas fee statute for civil actions does not embrace tort actions such as deceit. Relying on that case, appellants here argue that it was error to award appellee a fee for defending their claims.
We find that Stein v. Lukas, supra, is not controlling in this fact situation. In that case, the appellant’s complaint was brought on theories of deceit and breach of warranty. Here, although appellants made unsubstantiated allegations of tort in their counterclaim, the trial was basically an action for foreclosure. In Loewer v. National Bank of Arkansas, 311 Ark. 354, 844 S.W.2d 329 (1992), the supreme court affirmed an attorney’s fee award of $50,000.00 on a $130,851.00 judgment, where the appellee had sued on two promissory notes and the appellants counterclaimed for set-off of his debt because of the appellee’s conversion of his equipment. In that case, the appellants had also questioned the amount of attorney’s fees. The supreme court held:
Loewer also argues recoveries of attorney’s fees on promissory notes are limited to 10% of the principal and interest, relying on Ark. Code Ann. § 4-56-101 (Repl. 1991). This section simply recognizes that a provision in a promissory note for the payment of a reasonable attorney’s fee, not to exceed 10% of the amount of principal plus interest, may be enforceable as a contract of indemnity. We cannot interpret the Statute to limit the amount of attorney’s fees which can be awarded in an action to recover on a promissory note. Arkansas Code Ann. § 16-22-308 (Supp. 1991) clearly authorizes attorney’s fees to be awarded in an action such as this one.
Id. at 361, 844 S.W.2d at 334.
In determining a reasonable attorney’s fee, the court considers the character of the services, the time and trouble involved, the skill and experience required, the professional character, judgment, and responsibility of the attorney, the result achieved, the attorney’s own estimation of the value of his services, and an estimate of other attorneys who are familiar with relevant facts. See State Farm Fire and Casualty Co. v. Stockton, 295 Ark. 560, 750 S.W.2d 945 (1988). Considerable weight is given to the opinion of the judge before whom the proceedings have been conducted, Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993), and an award of an attorney’s fee will not be reversed absent an abuse of the trial court’s discretion. See Garner v. Limbocker, 28 Ark. App. 68, 770 S.W.2d 673 (1989).
Here, appellee furnished appellants and the court with a detailed summary of its billing statement. One counterclaim and two amended counterclaims were filed by appellants, and appellee had to defend against nine causes of action. Numerous depositions were also taken, and the chancellor sat through hearings and one trial. Based on the evidence before him, we cannot say that appellants have shown any abuse in the award of attorney’s fees.
Appellants contend in their tenth point that the chancellor erred in holding that the security that they offered was not adequate to stay execution of appellee’s entire judgment pending appeal. Inasmuch as we have affirmed the judgment in favor of appellee, the question raised by appellants is now moot, and we decline to address it. Aldridge v. Aldridge, 28 Ark. App. 175, 773 S.W.2d 103 (1989); see Logan v. State, 299 Ark. 550, 776 S.W.2d 327 (1989).
We also do not address appellants’ final point, that the chancellor erred in compelling them to file a schedule under Ark. Code Ann. § 16-66-221, because the schedule was in fact filed by appellants on May 12, 1994.
Affirmed.
Robbins and Rogers, JJ., agree. | [
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John Mauzy Pittman, Judge.
This is an appeal from a judgment of the St. Francis County Chancery Court, Juvenile Division. Appellant was convicted of theft of property, a Class A misdemeanor, was sentenced to three months unsupervised probation and was ordered to pay court costs of $35.00. Appellant contends that insufficient evidence was presented to support the conviction, that the delinquency petition failed to allege a criminal offense, and that his constitutional right of equal protection was violated. Only appellant’s sufficiency argument is preserved for appeal. We find no error and affirm.
In reviewing the sufficiency of the evidence in a delinquency case, we apply the same standard of review as in criminal cases. D. D. v. State, 40 Ark. App. 75, 842 S.W.2d 62 (1992). When the sufficiency of the evidence is challenged on appeal from a criminal conviction, we consider only the proof that tends to support the finding of guilt, and we view the evidence in the light most favorable to the State. Kennedy v. State, 49 Ark. App. 20, 894 S.W.2d 952 (1995). We will affirm if the conviction is supported by substantial evidence. Substantial evidence is that which is of sufficient force and character to compel a conclusion one way or the other without resorting to speculation or conjecture. Hardrick v. State, 47 Ark. App. 105, 885 S.W.2d 910 (1994).
A person commits theft of property if he knowingly takes or exercises unauthorized control over the property of another person, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a)(l) (Repl. 1993).
George Chapman, a security guard at Fred’s Department Store in Forrest City, testified that he observed appellant in the store with his mother and grandmother. Chapman said that he noticed that appellant’s mother handed appellant an umbrella from the store which he carried while in the store. Chapman stated he next saw appellant attempt to exit the store through an entrance turnstile which, to prevent shoplifting, moved only in one direction. Chapman testified that he told appellant that he could not exit there, and appellant turned back into the store. Chapman stated that he later observed appellant holding the umbrella in a checkout lane with his grandmother. When his grandmother completed her purchase, appellant left with her and was still holding the umbrella.
Josie Rogers, a cashier at Fred’s, testified that she checked out appellant’s grandmother and that appellant had the umbrella. Neither paid for the umbrella, and the grandmother indicated to her that appellant’s mother would pay for the umbrella when she checked out. No one paid for the umbrella.
Appellant argues that there is no evidence that he intended to steal the umbrella. We disagree. Intent is a state of mind which is not ordinarily capable of proof by direct evidence, but may be inferred from the circumstances. Tiller v. State, 42 Ark. App. 64, 854 S.W.2d 730 (1993). Appellant had attempted to leave the store with the merchandise through the turnstile. He did not remain in the store for his mother to pay for the umbrella, and he carried the umbrella when he left the store with his grandmother. We cannot say that there is no substantial evidence to support his conviction.
Appellant also argues that there was no allegation in the delinquency petition that he took the property with the purpose or intent of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a)(l) (Repl. 1993). Appellant raises this argument for the first time on appeal and we decline to address it. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Appellant’s abstract states that “the petitioner moved the court to quash the delinquency petition,” and that the court denied his motion to dismiss. We cannot tell from the abstract on what basis appellant moved to dismiss. It is well established that we decline to go to the trial transcript to reverse a case, and that the abstract constitutes the record on appeal. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994); Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). We note also that an objection to the sufficiency of an information must be made prior to trial. Meny v. State, 314 Ark. 158, 861 S.W.2d 303 (1993).
We decline to address appellant’s equal protection argument raised for the first time on appeal. Stewart, supra.
Affirmed.
Mayfield and Rogers, JJ., dissent. | [
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Bruce T. Bullion, Special Judge.
The claimant in this workers’ compensation case, Mr. Arlie Berry, suffered a compensable injury to both legs in March 1988. He filed a claim for benefits asserting that he was permanently totally disabled. The appellants contested this and, after a hearing, the administrative law judge found in an opinion dated September 18, 1992, that the claimant’s healing period ended on September 11, 1991, and that the claimant was permanently and totally disabled as a result of his compensable injury. No appeal was taken from this decision. Subsequently, a dispute arose between the appellants and the appellee Death and Permanent Total Disability Trust Fund concerning the date the claimant’s healing period ended. After considering arguments from both parties concerning the doctrines of res judicata and collateral estoppel, the Commission found that the unappealed-from decision of September 18, 1992, setting forth the end of the claimant’s healing period was final and controlling with respect to the present parties. From that decision, comes this appeal.
For reversal, the appellants contend that the Commission erred in finding that litigation was precluded regarding the end of the claimant’s healing period. In addition, the appellants contend that, if litigation is precluded regarding the end of the healing period, then litigation is precluded regarding all aspects of the decision of September 18, 1992. Finally, the appellants contend that the evidence does not support the finding that the claimant’s healing period ended on September 11, 1991. We affirm.
We first address the appellant’s contention that the Commission erred in finding that further litigation was precluded regarding the end of the claimant’s healing period. We note in this regard that the appellants were parties to the litigation which culminated in the decision of September 18, 1992, but that the appellee Death and Permanent Total Disability Trust Fund did not become involved until afterwards. The date of the healing period’s termination is significant with respect to the present parties because it determines the date upon which the Fund may commence taking credit against its maximum obligation to the claimant pursuant to Ark. Code Ann. § 1 l-9-502(b)( 1) (1987).
Although the appellant advances arguments relating both to the doctrine of res judicata and to the doctrine of collateral estoppel, we limit our discussion to collateral estoppel because we find it to be determinative. Collateral estoppel, or issue preclusion, bars relitigation of issues of law or fact which were actually litigated in the first suit. Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993). Four requirements must be satisfied for collateral estoppel to apply: (1) the issue sought to be litigated must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. Id.
We think that the requirements of collateral estoppel have been satisfied in the case at bar. The date on which the claimant’s healing period ended was determined by a specific finding in the prior litigation based upon evidence adduced therein. The administrative law judge’s order of September 18, 1992, was not appealed by any party within 30 days and therefore became final. See Rogers v. Darling Store Fixtures, 45 Ark. App. 68, 870 S.W.2d 776 (1994). Furthermore, the determination of the end of the healing period was essential to the judgment because the issue in the prior litigation was whether the claimant was permanently and totally disabled: a finding of permanent impairment necessarily entails a determination of the end of the healing period because permanent impairment is defined in terms of the permanent functional or anatomical loss remaining after the end of the healing period has been reached. Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994); see Thurman v. Clarke Industries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994).
The appellant also argues that the Fund may not assert res judicata and collateral estoppel because the Fund was not a
party to the earlier proceeding. We do not agree. Identity of parties is not required for the application of the doctrine of collateral estoppel. Crockett & Brown, P.A., v. Wilson, supra; Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993). Furthermore, the key question regarding the application of both res judicata and collateral estoppel is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993). In the case at bar, the earlier decision is being asserted against the appellants, who were in fact parties to the earlier action. Under these circumstances, we hold that the Commission did not err in finding that further litigation was precluded concerning the end of the claimant’s healing period.
Our resolution of the foregoing issue makes it unnecessary to address the appellant’s argument that the evidence does not support a finding that the claimant’s healing period ended on September 11, 1992. We note that the appellant has also argued that, if the decision of September 11, 1992, is held to be preclusive with regard to the end of the claimant’s healing period, then certain other aspects of that decision should also be binding on the Fund. However, because the Commission’s opinion contains no findings relating to the other aspects of the prior decision which are the subject of this argument, the issue is not preserved for appeal and there is nothing before us to review. See Odom v. Tosco Corp., 12 Ark. App. 196, 672 S.W.2d 915 (1984).
Affirmed.
Jennings, C.J., and Robbins, J., agree. | [
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Bruce T. Bullion, Special Judge.
The appellant in this ABC Board case, Conway Supper Club, Inc., filed an application for a private club alcoholic beverage permit. After a hearing on November 8, 1992, the Arkansas Alcoholic Beverage Control Division Board (ABC Board) granted the application. The appellees appealed to the circuit court which remanded to the Board for additional findings. Following remand, the circuit court reversed the decision of the Board and denied the permit. From that decision, comes this appeal.
For reversal, the appellants contend that the circuit court erred in remanding to the ABC Board to take additional evidence; in permitting issues relating to the legal validity of the nonprofit corporation and property ownership to be raised for the first time on appeal; in substituting its judgment for that of the ABC Board; and in finding that the Board’s decision was not supported by substantial evidence. We reverse.
We first address the appellants’ contention that the circuit court erred in remanding to the ABC Board for the taking of additional evidence. Arkansas Code Annotated § 25-15-212(f) (Repl. 1992) permits the circuit court to order that additional evidence be taken before the agency if the court finds that the evidence is material and that there were good reasons for failure to present it in the proceeding before the agency. The appellant asserts that, because the circuit court failed to make such findings, the order of remand was erroneous. We agree.
We have held that, when a party applies for leave to present additional evidence under Ark. Code Ann. § 25-15-212(f), the trial judge should first view the application for additional evidence to determine if the party was diligent; that the trial court may then in the exercise of its discretion conduct a hearing to determine if the additional evidence fits within the requirements of the statute; and that, if the trial court finds that under the requirements of the statute additional evidence should be taken, the trial court may then remand to the Board for it to hear the additional evidence. Marshall v. Alcoholic Beverage Control Bd., 15 Ark. App. 255, 692 S.W.2d 258 (1985). However, the trial court in the case at bar failed to make the requisite findings of diligence and good reasons in its order, but instead remanded to the Board for additional evidence to be taken concerning issues which had not been raised in the initial administrative hearing. In the absence of any finding that the statutory requisites had been satisfied, the trial court erred in remanding to the Board for additional evidence to be taken. See Woolsey v. Arkansas Real Estate Comm’n, 263 Ark. 348, 565 S.W.2d 22 (1978).
Given our resolution of the previous issue, the only question before us is whether the Board’s initial decision granting the appellant’s application is supported by substantial evidence. The rules governing judicial review of administrative decisions are the same for both the circuit and appellate courts and this review is limited in scope: administrative decisions will be upheld if supported by substantial evidence and not arbitrary, capricious, or characterized by an abuse of discretion. Fouch v. Arkansas Alcoholic Beverage Control Div., 10 Ark. App. 139, 662 S.W.2d 181 (1983). In determining whether there is substantial evidence, we review the entire record rather than merely the evidence supporting the Board’s decision. Id.
Arkansas Code Annotated § 3-9-222(f) (1987) provides that a private club permit may be issued upon a determination that the applicant is qualified and that the application is in the public interest. The qualifications required of an applicant are set out in Ark. Code Ann. § 3-9-202(10) (1987), which defines a “private club” as:
[A] nonprofit organization organized and existing under the laws of this state, no part of the net revenues of which shall inure directly or indirectly to the benefit of any of its members or any other individual, except for the payment of bona fide expenses of the club’s operations, conducted for some common recreational, social, patriotic, political, national, benevolent, athletic, or other nonprofit object or purpose other than the consumption of alcoholic beverages. The nonprofit corporation shall have been in existence for a period of not less than one (1) year before application for a permit, as hereinafter prescribed. At the time of application for the permit, the nonprofit corporation must have not less than one hundred (100) members regularly paying annual dues of not less than five dollars ($5.00) per member, and, at the time of application, must own or lease a building, property, or space therein for the reasonable comfort and accommodation of its members and their families and guests, and restrict the use of club facilities to such persons.
The Board found in its opinion of November 18, 1992, that the Conway Supper Club, Inc., was a legally incorporated nonprofit corporation qualified to hold a private club permit, and that it would be in the public interest to grant the application. The evidence before the Board at that hearing included testimony that the club was a nonprofit organization with approximately three hundred dues-paying members, and that a building with a small bar area and dining room would be constructed on the leased property. There was also testimony that the club proposed to operate a supper club therein for the benefit of its membership, with any excess revenues over cost being used for improvements, including a tennis court and swimming pool for the membership, and for donations to local charities. In addition, there was evidence that there were presently located in Faulkner County three organizations licensed to dispense alcohol by the drink, i.e., the Conway Country Club, the Cadron Valley Country Club, and the VFW Club, but that the appellant club’s membership could not afford the cost of the first two organizations and, not having participated in a foreign war, were not qualified for membership in the third club. There was also testimony that Faulkner County was a “dry” county, a majority of its citizens having exercised their right to prohibit the sale of alcoholic beverages by the package in that county, and that the club membership was therefore required to drive either to Little Rock or to Morrilton to have dinner and mixed drinks. Finally, there was testimony that no serious law enforcement or traffic problems were to be expected if the application was granted for a private club permit at the proposed location. Although there was evidence to the contrary on this latter point, on our review of the record as a whole we cannot say that the Board erred in granting a private club permit to the appellant club. Consequently, we reverse the circuit court’s decision and reinstate the Board’s decision granting the permit.
Reversed.
Jennings, C.J., and Rogers, J., agree. | [
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John E. Jennings, Chief Judge.
Appellee Vestal Wood filed suit to quiet title to approximately ninety acres of land in Crawford County, Arkansas. Appellants Gina Wood, Roger Wood, Jer-rie Wood Neal, and Doyle Wood answered, claiming an interest in the property. They appeal from the decree quieting title in Vestal Wood.
The parties are all grandchildren of George and Amanda Wood, who lived on and held title to the property in question. George and Amanda had nine children. George died in 1943. One of their children, Crawford Wood, cared for Amanda until she moved to Kansas City where she remained until her death in about 1953. Although it appears that no one lived on the property after some time in the 1950’s, Crawford paid the taxes and looked after the place until his death in about 1963.
The taxes for 1963 went unpaid, and the land was sold at tax sale. It was purchased by another of the Wood children, Elsie, and her husband Hugh Hays, who received three clerk’s deeds dated November 21, 1966.
Elsie and Hugh Hays never had any children. Sometime after Hugh’s death, Elsie delivered a warranty deed to the property to her nephew, appellee Vestal Wood, whose deceased father Estel was another one of the nine children of George and Amanda. That warranty deed was dated June 29, 1981, and was promptly recorded. Vestal Wood has paid the taxes on the property ever since 1981. In August 1993 appellee filed his petition seeking to quiet title.
Gina Wood, Jerrie Wood Neal, and Roger Wood are children of Ray Wood, who was one of the nine children of George and Amanda. Doyle Wood is appellee’s brother. None of the other descendants of George and Amanda named in the complaint filed an answer. Appellants claimed an interest in the property by inheritance and contended that any possession by appellee was with their permission and that the payment of taxes was for their joint benefit. They argued that any interest conveyed by the tax deeds to an heir of George and Amanda was for the benefit of all the heirs and was held in trust as a redemption.
At trial, appellee testified that he acquired title to the property by the 1981 warranty deed from Elsie, had paid taxes on the property since then, and that he considered the land his. He had granted easements to Southwestern Bell and to a neighbor for a road. He testified that he lived four miles from the property and visited the land about once a week. He had done brushhogging and “dozer work,” and allowed a neighbor to run some horses and cows on the land.
Appellee testified that some time in 1981 or 1982 Ray Wood asked appellee about having five acres of the property for Gina, and that appellee intended to see that Gina got five acres. Appellee then met Gina on the property, but testified that her request increased to ten, then fifteen, then twenty-two and a half acres. Appellee told her he would have to obtain a clear title before he could convey anything. Then appellee’s brother Doyle asked for a place to build but appellee refused Doyle’s request for forty acres. Appellee denied that he ever held the property “in trust” for any other family members. He testified that his Aunt Elsie was very precise in the handling of her affairs and would have put in writing any intentions regarding other family members. Elsie’s will left all of her estate, except for a $1,000.00 gift to a neighbor, to appellee. He testified that from 1981 on he considered the property to be his.
Appellant Gina Wood testified that when the taxes on the property were delinquent, her father Ray went to the courthouse to pay them and discovered that Elsie and Hugh Hays had already paid them and taken the tax deeds. Gina testified that Elsie visited her father’s home on many occasions and that she often heard them discuss the property. She testified that after Hugh Hays died, Elsie tried to turn the property over to her to take care of, but Gina felt that her aunt was upset over her husband’s death and that they should talk about it later. Gina was aware that Elsie gave a deed to appellee in 1981, but testified that she believed appellee was going to take care of it and “give all of the Wood family their part of the land.” Gina testified that right after Elsie died in January 1992 she and her sister Jerrie met appellee on the land and he told her that “he was still going to give me Daddy’s part of the land[.]” She testified that she and Jerrie and appellee all went to the attorney’s office together, and she provided names of all the heirs she was aware of, in an effort to help clear up the title so appellee could give her her share. Her father Ray died in June 1992. She testified that she heard nothing else from appellee regarding the property until he filed suit in 1993.
After hearing the testimony and considering the evidence, the chancellor found that title should be vested in appellee, stating:
The Court is satisfied that this property was not held in trust by him and that he has obtained title to this property by warranty deed and any challenge to his ownership of the property is barred by law at this time.
Appellants argue that as there was no finding of adverse possession, appellee’s claim is based solely upon the 1981 deed to him from Aunt Elsie. They argue that when Aunt Elsie purchased the property by tax sale in 1966 she did so as a tenant in common with the other heirs of George and Amanda. Appellants argue that her purchase at tax sale was no more than a redemption for the benefit of all the cotenants; as such, she acquired no more by purchase at the tax sale than what she already had, i.e., her undivided interest as a tenant in common. Appellants argue that the chancellor erred in holding “that appellee acquired his title by conveyance from his aunt, Elsie Hays, in 1981[.]” Appellants argue:
The only basis stated by the chancellor [in the decree quieting and confirming title in the appellee] is that appellee received a conveyance by warranty deed in 1981. This warranty deed was from an aunt who had purchased the property at a tax sale as a cotenant in 1966 and her purchase did not give her any title other than what she already owned.
A tenant in common is presumed to hold in recognition of the rights of his cotenants and this presumption continues until an actual ouster is shown. Baxter v. Young, 229 Ark. 1035, 320 S.W.2d 640 (1959). Since possession by a cotenant is not ordinarily adverse to other cotenants, each having an equal right to possession, a cotenant must give actual notice to other cotenants that his possession is adverse to their interest or com mit sufficient acts of hostility so that their knowledge of his adverse claim may be presumed. Hirsch v. Patterson, 269 Ark. 532, 601 S.W.2d 879 (1980). The statutory period of time for an adverse possession claim does not begin to run until such knowledge has been brought home to the other cotenants. Gibbs v. Pace, 207 Ark. 199, 179 S.W.2d 690 (1944). When there is a family relation between cotenants, stronger evidence of adverse possession is required. Ueltzen v. Roe, 242 Ark. 17, 411 S.W.2d 894 (1967).
When Elsie Hayes bought in the property at tax sale she acquired no additional rights as against her cotenants. See William v. Anthony, 182 Ark. 810, 32 S.W.2d 817 (1930). Such a purchase by a tenant in common amounts to a redemption and confers no right except to demand contribution from the cotenant. Holloway v. Berenzen, 208 Ark. 849, 188 S.W.2d 298 (1945). Her possession would be construed as the common possession of all the tenants in common until she did some act of ouster or notified the others that her possession was exclusive. Sanders v. Sanders, 145 Ark. 188, 224 S.W. 732 (1920). Similarly, when the appellee, Vestal Wood, who was also a cotenant, obtained the warranty deed from Elsie Hayes in 1981, he acquired no title to the interest of his cotenants. A tenant in common cannot acquire title to the interest of his cotenants by purchasing the property from a third party who bought at the tax sale. Johnson v. Johnson, 250 Ark. 457, 465 S.W.2d 309 (1971). Had Vestal Wood been a stranger to the title, rather than a cotenant, Elsie’s deed to him would have constituted color of title and his entry into possession would have commenced the running of the statutory period as against the other cotenants. Marshall v. Gadberry, 303 Ark. 534, 798 S.W.2d 99 (1990). Since Vestal Wood was a cotenant the deed to him from Elsie Hayes would not constitute notice of an adverse claim.
Mere lapse of time will not dissolve a cotenancy. Hollaway v. Berenzen, 208 Ark. 849, 188 S.W.2d 298 (1945). On the record in the case at bar we can find no acts on the appellee’s part sufficient to constitute the ouster required to commence the running of the statute of limitations. We therefore reverse the decree that quieted title in the appellee, and remand this case to the trial court for further proceedings in keeping with this opinion.
Reversed and remanded.
Pittman and Robbins, JJ., agree. | [
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Sam Bird, Judge.
Ernest Hendrickson appeals from a judgment of the Benton County Chancery Court. He contends that the court erred in its determination of the amount of back child support that he owed by rejecting his defense of equitable estoppel. Hendrickson further contends that the evidence supports the defense of equitable estoppel because it established (1) that Hendrickson timely paid support for four years until an agreement was made in June 1992 for appellee Tina Feast to forego child support in exchange for joint custody and the ability to claim their daughter as a dependent for income tax purposes; (2) that Hendrickson relied upon this agreement by providing food, clothes, housing, and other things directly to the children, by ceasing to claim their daughter as a dependent on his income taxes, by allowing Feast to live rent-free in a house he owned, and by foregoing modification of the child support award by court order; and (3) that Feast received the benefits of the agreement for nine years without objection. We reverse and remand for the trial court to consider the applicability of the doctrine of equitable estoppel.
Hendrickson and Feast were divorced by a decree filed on November 3, 1988, which incorporated a Child Custody, Separation, and Property Settlement agreement. Feast was awarded permanent primary custody of the two minor children, subject to Hendrickson’s right of reasonable visitation. Child support payments were fixed at $500 per month. By agreement between the parties, Hendrickson actually had physical custody of the children for approximately fifty percent of the time, although the visitation provision of the decree was never modified. The amount of child support, however, was modified twice. In 1989, the parties filed a joint petition requesting a reduction of child support to $300 per month, which the court granted. In 1991, the court granted the parties’ second joint petition to increase the child-support payment to $400 per month.
Testimony from Hendrickson, Rick Robertson, Feast’s husband during the time at issue, and Jared, the parties’ oldest child, reveals that around June 1992, Feast decided that since Hendrick-son had begun keeping the children fifty percent of the time, Hendrickson should no longer pay child support. In consideration of this new arrangement, Hendrickson agreed to allow Feast to claim their daughter, Miranda, as a dependent for income-tax purposes. Thereafter, Hendrickson supported the children by buying clothing and other items for them, taking them on vaca tions, and providing housing and food for them fifty percent of the time, instead of paying support in cash through the court clerk. Although this arrangement continued for nine years, until July 2000, the agreement between Hendrickson and Feast was never the subject of a court order.
On October 9, 2000, the Office of Child Support Enforcement filed a Motion for Contempt and Ex Parte Motion for Show Cause Order, seeking $41,200 in delinquent child support from Hendrickson. In his defense, Hendrickson contended that he relied upon the parties’ agreement that he was not to pay child support because the children were with him half the time and he supported them by providing housing, food, clothing, etc. In support of his position, Hendrickson pointed to the fact that Feast claimed their daughter as a dependent for tax purposes and made no demand that he pay any child support for nine years. Feast acknowledged that she had agreed in 1991 or 1992 that Hen-drickson did not have to pay a $900 judgment for delinquent child support that had been entered against him, but she denied that she had agreed to waive payment of future support. However, she admitted claiming Miranda as a dependent for tax purposes.
At the conclusion of the hearing, the chancellor concluded that in the absence of the entry of a court order modifying the divorce decree in conformity with the agreement of the parties, the agreement was not enforceable, and that appellant was liable for the entire amount of the arrearage in child support according to the amount set forth in the decree. Therefore, the court held that, as of February 21, 2001, Hendrickson owed $42,000 in child-support arrearages. We think that the chancellor’s refusal to consider the applicability of the doctrine of equitable estoppel was erroneous as a matter of law, and we reverse and remand for consideration of the applicability of that doctrine to this case.
In Roark v. Roark, 34 Ark. App. 250, 809 S.W.2d 822 (1991), this court addressed the issue of vesting of child-support payments, stating:
Once a child support payment falls due, it becomes vested and a debt due the payee. Arkansas has enacted statutes in order to comply with federal regulations and to insure that the State will be eligible for federal funding. ^These statutes provide that any decree, judgment, or order which contains a provision for payment of child support shall be a final judgment as to any installment or payment of money which has accrued. Furthermore the court may not set aside, alter, or modify any decree, judgment or order which has accrued unpaid support prior to the filing of the motion. While it appears that there is no exception to the prohibition against the remittance of unpaid child support, the commentary to the federal regulations which mandated our resulting State statutes, makes it clear that there are circumstances under which a court might decline to permit the enforcement of the child-support judgment.
Id. at 252, 809 S.W.2d at 824 (citations omitted). The commentary to the federal regulations, which mandated our Ark. Code Ann. §§ 9-12-314 and 9-14-234 states:
[enforcement of child support judgments should be treated the same as enforcement of other judgments in the State, and a child support judgment would also be subject to the equitable defenses that apply to all other judgments. Thus, if the obligor presents to the court or administrative authority a basis for laches or an equitable estoppel defense, there may be circumstances under which the court or administrative authority will decline to permit enforcement of the child support judgment.
54 Fed. Reg. 15, 761 (April 19, 1989).
The elements of equitable estoppel are (1) the party to be estopped must know the facts; (2) she must intend that her conduct shall be acted on or must so act that the party asserting estoppel has a right to believe the other party so intended; (3) the party asserting estoppel must be ignorant of the facts; and (4) the party asserting estoppel must rely on the other’s conduct to his detriment. Barnes v. Morrow, 73 Ark. App. 312, 43 S.W.3d 183 (2001); Arkansas Dep’t of Human Servs. v. Cameron, 36 Ark. App. 105, 818 S.W.2d 591 (1991). This court has affirmed the use of equitable defenses to prevent the enforcement of child-support orders, including arrearages. See Barnes v. Morrow, supra; Ramsey v. Ramsey, 43 Ark. App. 91, 861 S.W.2d 313 (1993); Arkansas Dep’t of Human Servs. v. Cameron, supra; Roark v. Roark, supra.
We applied the doctrine of equitable estoppel in Ramsey v. Ramsey, supra. There, Mrs. Ramsey dropped her son off at her daughter’s house and did not provide any support for him when he was out of her home. Mr. Ramsey relied on this conduct to his detriment by not making child-support payments to Mrs. Ramsey. Mr. Ramsey instead provided support directly to his daughter and to his son when his son moved in with him. As in the case at bar, Mrs. Ramsey waited several years before trying to collect past-due child support.
In the case at bar, the chancellor simply refused to consider the applicability of the doctrine of equitable estoppel, relying, instead, on his mistaken understanding that unless the agreement of the parties was incorporated in a modification to the divorce decree, the agreement was not enforceable. We hold that, under the evidence presented, it was error for the chancellor to refuse to consider the applicability of the doctrine, and we remand this case to the trial court for that purpose.
We should emphasize that, by this decision, we do not hold that the doctrine of equitable estoppel should be applied in this case. That is a decision for the trial court. We hold only that, under the facts of this case, the trial court erred in refusing to consider the applicability of the doctrine.
Reversed and remanded for further proceedings consistent with this opinion.
Neal, Baker, and Roaf, JJ., agree.
Pittman and Robbins, JJ., dissent. | [
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John B. Robbins, Judge.
Appellant Antonio Lenoir was convicted by a jury of first-degree murder and sentenced to thirty-five years in prison. Mr. Lenoir now appeals, raising four points for reversal.
Mr. Lenoir’s first argument is that he was denied a fair trial when the trial court excluded the testimony of his expert witness on cross-racial identification. His second argument is that the trial court erred in refusing his proffered jury instruction on the issue of cross-racial identification. Next, he contends that there was insufficient evidence to support the verdict. Finally, Mr. Lenoir raises three evidentiary issues. Under this point on appeal, he asserts that the trial court erred in excluding photographs of him, in granting the State’s motion to exclude evidence that purported to incriminate others, and in failing to exclude the testimony of a rebuttal witness who was present in the courtroom during trial. "We affirm.
The preservation of an appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors. Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Goodman v. State, 74 Ark. App. 1, 45 S.W.3d 399 (2001). In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998).
Officer George Pettigrew of the Wynne Police Department testified for the State. He stated that he received a call about a problem at City Liquor in Wynne at about 8:05 p.m. on September 23, 1997. Upon arriving at the scene, he found Joe Cannon, who was bent over on one knee and advised that he had been shot. Mr. Cannon was taken to the hospital by ambulance, and later died from the gunshot wound. At the scene of the crime, Officer Pettigrew asked Mr. Cannon’s wife, Patricia Cannon, to describe the assailant. Mrs. Cannon, who is white, described him as a light-complected black male, approximately 5’ 4” to 5’ 5” in height, and wearing a white t-shirt with red trim and light-colored pants.
Teresa Jones, who performed secretarial duties for the Wynne Police Department, testified that she became involved in the murder investigation. She stated that a few days after the murder, she showed Mrs. Cannon a book of photographs and that Mrs. Cannon identified Mr. Lenoir stating, “I know this is him because of his eyes.” Mrs. Cannon continued to examine the photographs, found an additional yet different picture of Mr. Lenoir, and again stated, “This is him.” Based on Mrs. Cannon’s identification of Mr. Lenoir, he was arrested.
Captain Oscar Wilson testified that he was the criminal investigator assigned to the case. He stated that he spoke with Mrs. Cannon and that she described the assailant as a black male who was 5’ 8” to 5’ 9”, and weighed 140 to 150 pounds. Captain Wilson placed Mr. Lenoir in a six-man lineup with other black males of similar description.
Captain Wilson testified that the lineup was in a room with a video system, but that the system malfunctioned. Thereafter, he directed Mrs. Cannon to look at the lineup through the window of a door, and she identified Mr. Lenoir. Captain Wilson obtained a warrant to search Mr. Lenoir’s sister’s residence because that is where he was arrested. During the search, the police found a white shirt with red trim in the living room among some dirty clothes, and Mrs. Cannon identified it as the shirt Mr. Lenoir wore on the night of the shooting. Captain Wilson acknowledged that the shirt contained the lettering “CHICAGO,” which was not mentioned by Mrs. Cannon when she described it earlier.
Mrs. Cannon testified about the murder. She stated that at about 8:00 p.m. on September 23, 1997, she was working at City Liquor and was arranging beer on some shelves while her husband was in the bathroom. She heard the door-chime ring, and when she turned around a man put a gun in her face and said, “Give me your money.” Mrs. Cannon stated that she recognized his voice because he was an occasional customer, and thought he was joking until he said, “I’m serious.” Mrs. Cannon testified that the man held her at gunpoint with the gun touching her forehead for about two minutes until Mr. Cannon emerged from the back of the store.
When Mr. Cannon came through the door, the assailant threw Mrs. Cannon to the floor and shot Mr. Cannon. He then told Mrs. Cannon to “get up and give me your money, or I’ll blow you away.” Mrs. Cannon testified that she told him to wait a minute until she regained her senses, and then walked to the cash register and opened it. The assailant then took all the money from the register and fled.
Mrs. Cannon recalled identifying Mr. Lenoir from the book of photographs and stated that when she saw his picture, “It turned me inside out and I lost it.” During the lineup procedure at the police station, Mrs. Cannon heard Mr. Lenoir state, “I did not shoot no one,” and she recognized that as the same voice that said, “Give me your money.” When she looked through the window at the lineup, all of the men looked at Mrs. Cannon except Mr. Lenoir, who initially did not look up. When he finally made eye contact, Mrs. Cannon identified him.
Mrs. Cannon also identified Mr. Lenoir as the murderer at trial. She testified:
I positively identified Antonio Lenoir. I am positive today. When I die and go to my grave, me and the good Lord knows I’ve got the right guy. I have never had a shadow of a doubt in over three years.
Mr. Lenoir testified on his own behalf and stated that he was in Parkin drinking beer with friends on the evening of the murder, and that he did not go to Wynne that night. He presented other defense witnesses who corroborated his testimony that he could not have committed the murder because he was in Parkin when it occurred.
We first address Mr. Lenoir’s argument that there was insufficient evidence to support his conviction for first-degree murder. He argues that there was an absence of evidence to connect him with the crime other than the identification by Mrs. Cannon, which he asserts was insufficient in light of the circumstances surrounding the murder and inaccuracies in the descriptions she gave to the police.
Mr. Lenoir notes that the incident occurred suddenly, that Mrs. Cannon admitted she was “in shock,” and that her view of the assailant was restricted because she was looking down the barrel of a gun. Based on these factors, he submits that she could not have been able to accurately identify the assailant.
Mr. Lenoir also makes reference to the fact that he is 5’ 6” and Mrs. Cannon described him at different times as being anywhere from 5’ 4” to 5’ 9”. Moreover, Mrs. Cannon described him as having short hair, and Mr. Lenoir maintains that his hair was not short at the time of the robbery. Mr. Lenoir has a missing front tooth and several tatoos on his arms and hands, and Mrs. Cannon did not mention any of those distinguishing features when talking with the police. As for the shirt that he allegedly wore, Mr. Lenoir notes that it says “CHICAGO,” but this fact was absent from Mrs. Cannon’s description of his clothing. Due to the suddenness of the crime and the inconsistencies and inaccuracies of Mrs. Cannon’s descriptions, Mr. Lenoir contends that there was no substantial evidence to support the jury’s finding that he was the person who committed the murder.
We hold that Mr. Lenoir’s conviction is supported by substantial evidence. The testimony of one eyewitness alone is sufficient to sustain a conviction. Wesley v. State, 318 Ark. 83, 883 S.W.2d 478 (1994). In this case, Mrs. Cannon identified Mr. Lenoir as the perpetrator by selecting him from a book of photographs and from a lineup, and she also identified him at trial. She testified that she was positive about the identification. Mr. Lenoir relies on the inaccuracies of her prior descriptions given to police officers. However, t-he appellate court does not weigh the evidence presented at trial or weigh the credibility of witnesses, as these are matters to be resolved by the finder of fact. See Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001). The jury credited the testimony of Mrs. Cannon, as it was entitled to do, and her testimony supported the jury’s finding that Mr. Lenoir was guilty of first-degree murder.
We next address Mr. Lenoir’s argument that he was denied a fair trial because the trial court excluded the testimony of his expert witness on cross-racial identification. He notes that in the first trial in this case, which resulted in a hung jury, the testimony of such an expert was permitted. In the subsequent trial resulting in conviction, Mr. Lenoir had retained John C. Brigham, Ph.D., an alleged expert on the problems with cross-racial eyewitness identification, but the trial court granted the State’s motion to exclude his testimony.
Mr. Lenoir asserts that, because the State’s case was based entirely on the identification by Mrs. Cannon, the expert testimony should have been admitted pursuant to Ark. R. Evid. 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Mr. Lenoir asserts that, as his expert testified in the first trial, the expert in this case would have testified that Caucasians have difficulty identifying African-Americans, and that victims of a crime tend to focus on the weapon if one is used. Mr. Lenoir further asserts that Mr. Brigham would have testified that there is no correlation, and can even be a reverse correlation, between the certainty of the witness and reliability of her testimony.
Mr. Lenoir acknowledges that there is no Arkansas law directly on point to support his argument. However, he cites Brodes v. Georgia, 551 S.E.2d 757 (Ga. App. 2001), where the Georgia Court of Appeals reversed appellant’s armed robbery conviction based on its holding that the trial court abused its discretion in excluding the testimony of an expert on the reliability of witness identification. In that case, the only evidence against the appellant was his cross-racial identification by the victims, and the court of appeals stated that the expert’s testimony about the effects of cross-racial identification, tendency of the victim who is being robbed to focus on the gun instead of the culprit’s face, and lack of relationship between a victim’s confidence and accuracy were not otherwise likely to be fully understood by jurors and were highly relevant. The court further held that the trial court’s erroneous exclusion of the expert testimony was not harmless because the only evidence of appellant’s involvement in the robbery was the victim’s eyewitness identification, and appellant’s sole defense was mistaken identity.
Mr. Lenoir also cites People v. Drake, 728 N.Y.S.2d (2001). In that case, the New York Supreme Court ruled that expert testimony on eyewitness identification was appropriate in appellant’s trial for numerous charges, including attempted murder. In reaching its decision, the court relied on several factors, including the violence and stress involved, the weapon used, and the cross-racial aspect of the identification of the appellant, and ruled that these identification issues might not be apparent to an ordinary person.
In the instant case, Mr. Lenoir contends that the identification made by Mrs. Cannon was suspect given the use of a weapon by the culprit, the stress involved, the short time that elapsed, and the cross-racial aspect of the identification. He argues that the testimony of his expert witness was essential to his defense and would have helped the jury understand the reliability of such an identification.
The trial court has discretion in the admissibility of expert-witness testimony, which will.not be reversed absent an abuse of discretion. Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998). We hold that the trial court did not abuse its discretion in refusing to admit Dr. Brigham’s testimony.
In reaching our decision we rely on Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). In that case, our supreme court declined an invitation by the appellant to follow cases from other jurisdictions, and held that the trial court did not abuse its wide discretion in excluding expert testimony about factors affecting the reliability of eyewitness testimony. The appellant in Utley v. State, supra, was convicted of aggravated robbery based on the testimony of the two victims. Although the crime occurred suddenly and quickly and appellant held the victims at gunpoint, our supreme court ruled that the effect of stress on the reliability of identification was easily understood by the jury without expert testimony, and that the testimony could have hindered the jury’s ability to judge impartially the credibility of and weight to be accorded the witnesses’ testimony.
Our supreme court in Utley v. State, supra, declined to follow other jurisdictions in reaching its holding on the admissibility of expert identification testimony, and in the case at bar we are not persuaded to follow the authorities cited by Mr. Lenoir. As sole judge of the credibility of witnesses, the jury was adequately equipped to consider Mrs. Cannon’s testimony in light of their own personal experiences and common sense and decide whether her identification was reliable. The exclusion of the expert witness’s testimony was not error.
Mr. Lenoir next argues that the trial court erred in refusing to give a jury instruction on the question of cross-racial identifica tion. At the close of the case, Mr. Lenoir proffered the following instruction:
You know the identifying witness is of a different race than the defendant. When a witness who is a member of one race identifies a member who is of another race, we say there has been a cross-racial identification. You may consider, if you think it is appropriate to do so, whether the cross-racial nature of the identification has affected the accuracy of the witness’s original perception and/or accuracy of a subsequent identification.
For his argument, Mr. Lenoir cites State v. Cromedy, 727 A.2d 457 (N.J. 1999), where the New Jersey Supreme Court held in a case of first impression that, in a rape case where a white victim identified her African-American assailant, it was error for the trial court to deny the appellant’s requested jury instruction on cross-racial identification. Mr. Lenoir argues that the proposed instruction in the present case would have helped focus the jury on the problems of cross-racial identification. He contends that the failure to give the instruction violated due process because the cross-racial eyewitness identification was the only evidence presented against him.
In determining if the trial court erred in refusing an instruction in a criminal trial, the test is whether the omission infects the entire trial such that the resulting conviction violates due process. Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001). We hold that refusal to give the instruction did not violate due process. In this case, the jury was instructed to weigh the evidence and credibility of witnesses in light of their observations and experiences, and the proposed jury instruction was not necessary for the jury to assess the testimony given by Mrs. Cannon. Mr. Lenoir has cited no binding authority to support his position on this issue, and we again decline to follow the authority he cites from another jurisdiction.
We now turn to the improper evidentiary rulings asserted by Mr. Lenoir. The first of these rulings was the trial court’s exclusion of proffered photographs of Mr. Lenoir that showed a small mustache, missing front tooth, and multiple tattoos on his arms and hands. He argues that these photographs were relevant and admissible to show distinguishing marks and features not men tioned in Mrs. Cannon’s descriptions to the police, thereby attacking the credibility of her identification testimony.
Admission of photographs rests within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of that discretion. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). The trial court’s refusal to admit the photographs was not an abuse of discretion because they were merely cumulative of other evidence and were thus properly excluded under Ark. R. Evid. 403. It is undisputed that, during his testimony, Mr. Lenoir displayed a missing tooth and his numerous tatoos to the jury, and in refusing to admit the photographs the trial court announced, “I am going to deny them as they show exactly what the defendant has shown the jury in person.” Moreover, even had the trial court erred in excluding the photographs, such error resulted in no prejudice, and we will not reverse an evidentiary ruling absent a showing of prejudice. See Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996).
Mr. Lenoir next argues that the trial court erred in granting the State’s motion to exclude the testimony of one of the investigating officers who, eighteen minutes after responding to Mrs. Cannon’s report of the shooting, found three males in close proximity to the liquor store. According to the officer, the males fled as he approached them. Mr. Lenoir contends that the jury should have been allowed to weigh the evidence of the other subjects’ possible involvement in the crime against the evidence presented by the State.
The testimony proffered by Mr. Lenoir was inadmissible pursuant to Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993), where our supreme court stated:
A defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but such evidence is inadmissible unless it points directly to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another’s guilt is inadmissible.
Id. at 75, 852 S.W.2d at 323 (citing State v. Wilson, 367 S.E.2d 589 (N.C. 1988)). In the instant case, there was no evidence that the three males were involved in the crime given that there was no evidence that they were ever present in the liquor store, and their identities or other information about them was never ascertained. The trial court did not abuse its discretion in excluding the testimony.
Finally, we address Mr. Lenoir’s argument that the trial court erred in failing to exclude the testimony of a rebuttal witness who had been sitting in the courtroom during the trial. He correctly asserts that Ark. R. Evid. 615 had been invoked,-which provides:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
After the defense rested, the State called the victim’s son, Joseph Cannon, Jr., as a rebuttal witness. Mr. Lenoir objected, but the trial court allowed the witness to testify, notwithstanding the fact that the witness was not excused by “the rule” and was present during the trial. Mr. Lenoir contends that Mr. Cannon’s testimony was opposite that of the defense’s alibi witnesses, was prejudicial, and should have been excluded.
We hold that any possible error in permitting Mr. Cannon to testify was rendered harmless by the rebuttal testimony of Deputy Larry Williams. Mr. Cannon testified that it was raining hard on the night of the murder, which contradicted Mr. Lenoir’s testimony in this regard. However, after Mr. Cannon testified, Deputy Williams also testified, without objection, that it was raining hard on the night at issue. Moreover, in the State’s case-in-chief, Officer Pettigrew testified, “It was raining steadily.” The admission of evidence that is merely cumulative of other evidence admitted without objection is not prejudicial. Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995).
Upon reviewing each of the points argued by Mr. Lenoir on appeal, we hold that no reversible error occurred. Therefore, his conviction for first-degree murder is affirmed.
Affirmed.
Hart and Baker, JJ., agree.
We attempted certification of this case to the supreme court pursuant to Ark. Sup. Ct. Rule l-2(b)(l)(5). The supreme court declined certification. | [
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LARRY D. VAUGHT, Judge
11Appellant William Vice appeals from an order of the Washington County Circuit Court (1) dismissing his claim for a credit for the overpayment of child support for his twenty-five-year-old daughter, Julia, and (2) requiring him to pay $62.00 per week in child support for his thirty-one-year-old disabled daughter, Lisa. He also appeals from a judgment awarding $2,694.70 in attorney’s fees- and costs to Julia and Lisa’s mother, appellee Dee Anna Vice. We affirm the trial court’s order and judgment.
William and Dee Anna divorced in 1994. The divorce decree ordered William to pay child support to Dee Anna for the benefit of Lisa, who was born with disabilities, and Julia. In 2007, an agreed order was entered whereby William agreed to pay child support in the amount of $122 per week for the parties’ minor child, Julia, and the postminority support of Lisa due to her special needs. William paid child support accordingly.
|?In May 2014, William filed a petition for termination of child support, alleging that Julia had reached the age of majority and that his child-support obligation for her had ceased. He also alleged that child support for Lisa should be terminated because in February 2014 he had begun to receive Social Security retirement benefits, and as a result, Lisa received Social Security dependent benefits on his record in excess of his child-support obligation. Dee Anna agreed that Julia had reached the age of majority; however, Dee Anna denied that William’s support for Lisa should be terminated.
At the hearing, William contended that he had continued to pay his child-support obligation for Julia well beyond the date she reached the age of majority; therefore, that obligation should be terminated. He also testified that he was no longer able to work full-time due to multiple medical conditions. He said that he was able to work only part-time, earning $3,000 per year. He stated that he did not believe that there was any job he could do given his physical condition and that he had not looked for other work. While he testified that he had been denied Social Security disability benefits, he stated that as of February 2014 he had begun to receive $909 in monthly Social Security retirement benefits. He agreed that Lisa has severe disabilities and needs care, but he claimed his child support for her should be terminated because she was receiving $553 per month in Social Security dependent benefits on his record, which was greater than his child-support obligation. He requested that his monthly child-support obligation be credited by $553.
|sDee Anna testified that Lisa was bom with spondyloepiphyseal dysplasia congenital. Lisa is also hearing impaired and cognitively and developmental^ delayed. She has had multiple surgeries- (including five spinal surgeries and one hip replacement) and therapies. According to Dee Anna, Lisa needs care and cannot be left unattended for extended periods of time. Dee Anna stated that she worked full time as a special-education teacher and- that while she was at work she hired' caregivers to stay with Lisa. Dee Anna further testified that she suffers from several health problems, including breast cancer and congestive heart failure.
Dee Anna stated that before William received Social Security retirement benefits, Lisa received $721 per month in Social Security benefits based on her disability. When William began to receive Social Security retirement, Lisa’s monthly disability benefit increased to $772. Dee Anna attributed $1,260 in monthly expenses to Lisa’s care. She testified that if William did not pay child support, the $772 per month Lisa received from Social Security would be insufficient to care for her and that she (Dee Anna) did not have the financial resources to cover the difference.
Syard Evans, the deputy CEO of the Arkansas Support Network, testified that he had been acquainted with Dee Anna and Lisa for fourteen years. He confirmed that Lisa’s disability affected her physical, cognitive, intellectual, and psychological functioning. He testified that $772 per month was insufficient to support Lisa’s needs.
Following the hearing, the trial court entered a letter opinion dismissing William’s request for a credit for the overpayment of child-support payments for Julia because he failed |4to plead it. The’ court didj however* find that William’s child-support obligation for Julia terminated as a matter of law. Relying on Guthrie v. Guthrie, 2015 Ark. App. 108, 455 S.W.3d 839, the court next found - that Lisa, based on her disability, needed support; that Dee Anna needed financial support to care for Lisa; and that William owed a duty to continue to support Lisa. Despite William’s testimony that he was no longer able to work full time, the court, pursuant to Administrative Order No. 10, imputed income of full-time minimum wage to him and ordered him to pay chart support of $62 per week for Lisa.
In a supplemental letter opinion, the trial court found that based on Arkansas Child Support Enforcement v. Hearst, 2009 Ark. 599, 357 S.W.3d 450, it was not permitted to consider William’s “Social Security Income (SSI) benefits” as income. It reiterated that William’s testimony that he was unable to work lacked credibility, it found that he was working below full earning capacity, it imputed a minimum-wage income to him’ for purposes of child support, and it again awarded a support-chart figure of $62 per week.
■ An order was entered on November 10, 2015, detailing the findings in the trial court’s letter opinions. On December 1, 2015, the court entered a judgment awarding Dee Anna attorney’s fees and costs in the amount of $2,694.70. This appeal followed.
William’s first point on appeal is-that the trial court erred in denying his request for a credit for the overpayment of Julia’s child support. He claims that his obligation to support Julia terminated' by operation of law, pursuant to Arkansas Code Annotated section 9-14-237, |fiwhen she reached the age of majority, and that he should receive a credit for all payments he made thereafter. However, the trial court did not reach the merits of this argument, finding that he failed to plead it. William does not address this finding on appeal.
A review of the record reveals that the trial court did not abuse its discretion in finding that the credit for the overpayment was not properly pled or litigated. William did not file a pleading requesting a credit for the overpayment of Julia’s child support. William’s first request, written or otherwise, for a credit was included in a brief filed the date of the hearing. Written pleadings are required so that each party may know what issues are to be tried and may thus be in a position to enter the trial with his proof in readiness, Urban Renewal Agency of City of Harrison v. Hefley, 237 Ark. 39, 40, 371 S.W.2d 141, 142 (1963) (citing Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439 (1950)).
We recognize that Rule 15(b) of the Arkansas Rules of Civil Procedure allows for the amendment of the pleadings to conform to the evidence introduced at trial. Barnett v. Gomance, 2010 Ark. App. 109, at 6, 377 S.W.3d 317, 322. The rule is liberal in its allowance of amendments to conform pleadings to proof and even eon- templates an amendment after judgment. Id., 377 S.W.3d at 322. In this case, however, William did not move to amend the pleadings to conform to the evidence.
Finally, if no amendment is made, it does not affect the trial of issues not raised in' the pleadings, as permitting the introduction of proof on an issue not raised in the pleadings constitutes an implied consent to trial on that issue. Id., 377 S.W.3d at 322. However, the evidence in this case demonstrates that the parties did not impliedly consent to the issue of a credit for the overpayment of Julia’s child support. William testified only that he had paid child ^support beyond Julia’s eighteenth birthday. His testimony did not include a request for a credit for the overpayment, and his attorney did not request a credit in closing arguments. No witness testified about the date on which Julia graduated from high school or reached the age of majority. There was no evidence establishing the amount of the overpayment. Because William did not file a pleading requesting the credit for the overpayment of Julia’s support, he did not move to amend the pleadings to conform to the evidence, and there is no evidence that the parties impliedly consented to the issue, we hold that the trial court did not abuse its discretion in finding that the credit for the overpayment was not properly piled or litigated.
William’s second point on appeal is that the trial court erred in computing his child-support payments. The trial court, relying on Guthrie and Administrative Order No. 10(III)(d), imputed a full-time minimum-wage income to him and ordered him to pay. chart support of $62 per week for Lisa. William. argues that the trial court erred in imputing income to him because the evidence was uncontroverted that he is unable to work full-time due to his failing health. .
We review the court’s imputation of income under the abuse-of-discretion standard. Guthrie, 2015 Ark. App. 108, at 11, 455 S.W.3d at 846. An abuse of discretion occurs when discretion is applied thoughtlessly, without due consideration, or improvidently. Id., 455 S.W.3d at 846.
|7In Guthrie, the trial court imputed income to a sixty-six-year-old retired noncustodial parent of a special-needs child who needed postminority care and found that the custodial parent needed financial support to provide that care. We stated that a court may, in proper circumstances, impute income to a payor, but determining the proper circumstances “is sometimes difficult.” Id., 455 S.W.3d at 846 (citing Grady v. Grady, 295 Ark. 94, 98, 747 S.W.2d 77, 79 (1988)). We further stated that our courts have voiced a reluctance to interfere with a payor’s personal life and career choices. Id., 455 S.W.3d at 846-47 (citing Grady, supra). But, by the same token, we recognized that a payor’s personal choices may have an impact on a custodial parent or a dependent child. Id., 455 S.W.3d at 847. We held that consequently, the payor’s choices cannot always take precedence over his or her obligation to earn income sufficient to provide support. Id., 455 S.W.3d at 847.
Based on Guthrie, we affirm the trial court’s imputation of income to William. It is- undisputed that Lisa is disabled and requires care past the age of minority. There was evidence that Dee Anna, who was working full time, required additional financial support to provide care for Lisa. Although there was evidence that William retired because he was no longer able to work full time based on his medical conditions, that evidence came from William, and the trial court did not find his testimony credible. The court stated, “No proof beyond the defendant’s testimony was offered to support his claims as to any of the alleged ailments.” The court further noted that William had been denied Social Security disability benefits and that he had not looked for any work. Therefore, we hold that the trial court did not abuse its discretion in finding that William was working below full earning capacity and in imputing fullHstime minimum-wage income to him pursuant to Guthrie and Administrative Order No. 10(III)(d).
Under this same point on appeal, William argues that the trial court erred in refusing to credit his child-support obligation with the $553 in monthly Social Security benefits Lisa received on his record. He relies on Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962), where our supreme court reversed the trial court’s order refusing to allow a sixty-five-year-old noncustodial parent a credit on his child-support obligation for the Social Security retirement benefits his minor child received. William’s reliance on Cash is premature.
Before William can be considered to receive a credit against his child-support obligation for the Social Security retirement benefits that Lisa receives based on his record, those benefits must first be counted in his income. In Szabo v. Womack, 2011 Ark. App. 664, 2011 WL 5220503, abrogated on other grounds by Szabo v. Womack, 2013 Ark. App. 198, 2013 WL 1232104, we held that a noncustodial parent was entitled to a credit against his child-support obligation for the Social Security disability benefits his dependent minor received after we held that these benefits were considered income to the noncustodial parent. See also Ark. Office of Child Support Enf't v. Hearst, 2009 Ark. 599, at 9-10, 357 S.W.3d 450, 455-56 (holding that Social Security disability benefits paid to dependent children of a noncustodial parent based on the noncustodial parent’s disability are considered income to that parent for the purpose of calculating child support). Significantly, in Szabo, the noncustodial parent’s first point on appeal was that the Social Security disability, benefits should have been counted in his income. Szabo, 2011 Ark. App. 664, at 3.
|9In the case at bar, William never argued that the Social Security benefit of $553 per month that Lisa receives on his record is income to him for purposes of calculating his child support. He did not list the $553 as income in his affidavit of financial means, and he did not argue to the trial court in his pleadings, briefs, or at the hearing that these benefits were income to him. On appeal, William has not argued or even mentioned that these benefits should have been counted as his income. Because William did not list Lisa’s $553 monthly Social Security benefit as income, never argued that it should have been included in calculations of his income, and it was not included in the trial court’s child-support-income computation, we hold that he cannot now claim a credit for it against his child-support obligation. Ac cordingly, we hold that the trial court did not abuse its discretion in denying William’s request for the credit against the child support he pays on Lisa’s behalf. We affirm on this point.
For his third and final point on appeal, William argues that the trial court abused its discretion in ordering him to pay Dee Anna $2,694.70 in attorney’s fees. He contends that the trial court lacked statutory authority to award attorney’s fees and that the trial court failed to consider the factors set forth in Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990), justifying the award. We disagree.
As a general rule, attorney’s fees are not allowed in the absence of a statute permitting their allowance. Artman v. Hoy, 370 Ark. 131, 137, 257 S.W.3d 864, 869 (2007). However, the Imtrial court has an inherent power to award attorney’s fees in domestic-relations proceedings, “and whether the trial judge should award fees and the amount thereof are matters within the discretion of the trial court.” Id. at 137, 257 S.W.3d at 869. Therefore, no statutory authority is required in this case. Further, an analysis of the Chrisco factors when considering attorney’s fees applications is no longer required in domestic-relations cases, Tiner v. Tiner, 2012 Ark. App. 483, at 16-17, 422 S.W.3d 178, 187. Due to the trial court’s intimate acquaintance with the record and the quality of services rendered, we usually recognize the superior perspective of the trial court in assessing the applicable factors. Fallin v. Fallin, 2016 Ark. App. 179, at 15, 492 S.W.3d 525, 534.
In the case at bar, the trial court was acquainted with the record, pre-sided over the hearing, reviewed the parties’ pleadings and briefs, and considered the evidence and arguments (including the motion for attorney’s fees and affidavit in support thereof); therefore, the court was in the best position to make a determination on the issue of attorney’s fees. A trial court’s decision related to attorney’s fees will not be disturbed on appeal absent an abuse of discretion. Artman, 370 Ark. at 137, 257 S.W.3d at 869. We conclude that the trial court did not abuse its discretion in awarding Dee Anna $2,694.70 in attorney’s fees and costs.
Affirmed.
Kinard and Gruber, JJ., agree.
. William testified that he suffers from type II diabetes, neuropathy in his feet, a blood disorder, high cholesterol, a rapid heartbeat, high blood pressure, and shoulder and back issues; that he has had three hernia surgeries, an aneurysm repair in his aorta, and knee surgery; and that he has only one kidney that functions at forty percent.
, Spondyloepiphyseal dysplasia congenital is an inherited bone-growth disorder that results in short stature (dwarfism), skeletal abnormalities, and problems with vision and hearing.
. On appeal, both parties point out that the trial court mistakenly characterized William’s Social Security retirement benefit as SSI. Dee Anna goes further in her brief, stating that the trial court was "entitled” to count William’s retirement benefit as income pursuant to Administrative Order No. 10(II)(a). However, she did not file a cross-appeal on this issue.
. Arkansas Supreme Court Administrative Order No. 10(III)(d) (2015) provides:
If a payor is unemployed or working below full earning capacity, the court may consider the reasons therefor. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a payor up to his or her earning capacity, including consideration of the payor's life-style. Income of at least minimum wage shall be attributed to a payor ordered to pay child support.
. Moreover, the benefits credited in Szabo and in Hearst were Social Security disability benefits paid to the dependent minor child based on the disability of the noncustodial parent. Here, the benefits attributable to William are Social Security retirement benefits. On the basis of her own disability, Lisa, an adult, was receiving Social Security benefits before William retired. When William retired, the government offset Lisa’s disability benefits with his retirement benefits to his disabled/dependent child. Whether the law treats these benefits identically to those in Szabo and Hearst was not argued and is not before us. | [
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Donald L. Corbin, Justice.
Appellant Troy Lee Dorn Jr. appeals the order of the Jefferson County Circuit Court convicting him of possession of a controlled substance with intent to deliver in violation of Ark. Code Ann. § 5-64-401 (Repl. 1997). On appeal, he argues that it was error for the trial court to deny his motion for a mistrial after the State improperly commented on his failure to testify at trial. This case was certified to us from the Arkansas Court of Appeals, as involving an issue that requires clarification or development of the law; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (b)(5). We find no error and affirm.
On or about June 15, 2000, members of the Tri-County Drug Task Force obtained a search warrant for a house located at 806 South Washington in Pine Bluff, which was owned and occupied by Appellant’s parents. At the time of the search, Appellant, his parents, and his girlfriend were all present. The search uncovered approximately thirty-four pounds of marijuana, weighing scales, a trash can containing items contaminated with marijuana residue, and approximately $14,000 in cash. When asked about the cash, Appellant admitted that it belonged to him. Appellant was subsequently arrested.
The next morning, Sergeant Kelvin Sergeant, a member of the Task Force transported Appellant from the Jefferson County Detention Center to the detective offices in order to interview him. After being advised of his Miranda rights, Appellant declined to make a statement and asked to speak with his attorney. Sergeant then began to fingerprint Appellant and, while doing so, informed Appellant that his parents and girlfriend could also be charged in connection with the search. Appellant denied that they had any involvement with the drugs.
While Sergeant was returning Appellant to the detention center, Appellant began to cry. Sergeant asked him why he was crying, and he responded, “Man, I f d up. I f d up.” He then asked to use Sergeant’s cell phone to call his girlfriend. Sergeant dialed the phone number and held the phone up to Appellant’s ear. Appellant then said to his girlfriend, “I’m not going to let anything happen to you. I’m not going to let anything happen to you. I f d up. I f d up.”
A jury trial was held on August 21, 2003. During the course of the State’s closing argument, the prosecutor argued that the State’s evidence against Appellant was uncontroverted. After he concluded his argument, counsel for Appellant asked for permission to approach the bench. Appellant’s counsel then asked the court to declare a mistrial because the State’s comment was an impermissible comment on Appellant’s failure to testify at trial. The. court denied Appellant’s motion. The jury subsequently found Appellant guilty as set forth above and sentenced him to a term of five years’ imprisonment in the Arkansas Department of Correction. This appeal followed.
For his only point on appeal, Appellant argues that the trial court erred in denying his motion for a mistrial after the State improperly commented on his failure to testify at trial by stating during closing argument that the evidence against Appellant was uncontroverted. Appellant further contends that it cannot be shown beyond a reasonable doubt that the statement did not influence the verdict. The State counters that Appellant’s argument is procedurally barred as his motion for mistrial was not made at the first opportunity. The State alternatively argues that the evidence was not of a type that could only be controverted by Appellant testifying and, thus, it was not error to deny the motion for a mistrial. We agree with the State that Appellant’s argument is not preserved for our review, but for a different reason.
In the present case, the record reflects the following colloquy:
[The State]: . . . Mr. Robinson breaks down different parts of the case, and he tried to make you not rely on your common sense. He tried [to] make you say, “Well, the State is just relying on the fingerprint, this one fingerprint. That’s the State’s whole case.” But don’t be confused, and don’t be misled because that’s not right. In addition to the print, in addition to the marijuana, in addition to the scales, in addition to the bags, in addition to the duffel bag, you have all of these statements, every single one of them where this defendant claimed responsibility for all of this marijuana. That is uncontroverted, absolutely uncontroverted.
And, ladies and gentlemen, I submit to you that the State has well proven that this defendant is a drug dealer and that he should be found guilty of possession with intent to deliver here in this county. Thank you for your time and attention.
[Defense Counsel]: May we approach?
The Court: You may.
[Defense Counsel]: While the jury is back in deliberation, I need to move for a mistrial on the argument of the prosecution.
The Court: All right.
Immediately thereafter, the court instructed the jury and deliberations began. Only after the jury began deliberating, did Appellant explain his basis for seeking a mistrial.
The law is well settled that motions for mistrial must be made at the first opportunity. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). The policy reason behind this rule is that a trial court should be given an opportunity to correct any error early in the trial, perhaps before any prejudice occurs. Id. Moreover, in order to preserve an argument for appeal, there must be an objection to the trial court that is sufficient to apprise the court of the particular error alleged. Ellison v. State, 354 Ark. 340, 123 S.W.3d 874 (2003). Thus, an objection must be both contemporaneous and specific. Id; Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002).
In the present case, even though Appellant moved for a mistrial almost immediately after the prosecutor’s comment about the evidence, he did not state any grounds in support of a mistrial at that time. Instead, he waited until after the jury was instructed and deliberations were underway. In short, he failed to apprise the trial court of the alleged error, thereby failing to give the trial court an opportunity to correct the alleged error. Thus, this issue is not preserved for our review.
Affirmed.
Thornton, J., not participating. | [
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Jim Hannah, Chief Justice.
This is an appeal from a decision of the Workers’ Compensation Commission that Guy Dixon was not an employee of the Salvation Army at the time he suffered injury. Based on this finding, the Commission denied worker’s compensation benefits. At the time of the injury, Dixon was enrolled in and performing duties assigned him in a Salvation Army alcohol rehabilitation program. Although Dixon suffered injury while oper ating a forklift, he was not operating the forklift in the performance of employment duties for the Salvation Army, but instead was engaged in work therapy as part of his rehabilitation program. We affirm the Workers’ Compensation Commission. This case is here on a petition for review from a decision of the Arkansas Court of Appeals reversing the Workers’ Compensation Commission. Dixon v. Salvation Army, 86 Ark. App. 132, 160 S.W.3d 723 (2004). Our jurisdiction is pursuant to Ark. Sup. Ct. R. 2-4.
Facts
Onjune 11, 2001, Dixon filled out an application asking the Salvation Army to admit him into its Rehabilitation Center. Dixon had been admitted to the Salvation Army alcohol rehabilitation program four times previously and was admitted again. Dixon agreed to the conditions of the program: that he attend services on Sunday and on Wednesday, that he live at the Rehabilitation Center for sixteen weeks, that he engage in forty hours of work each week, and that he receive a beginning stipend of seven dollars per week. Dixon also agreed to attend therapy such as Alcoholics Anonymous meetings.
On August 24, 2001, Dixon suffered injury while operating a forklift as part of his work therapy in the rehabilitation program. He was released from the program at that time because the Salvation Army had neither the facilities nor the resources to care for Dixon once he was injured. He was initially confined to a wheelchair. Later, he was able to use crutches and ultimately recovered.
On October 9, 2001, after Dixon was released from the Rehabilitation Center program, and after he recovered from his injuries, he was offered and accepted a full-time job with the Salvation Army. His duties included work that was similar to the work therapy he was provided while he was in the alcohol rehabilitation program. The Salvation Army has a practice of hiring past enrollees in its rehabilitation programs to fill full-time positions necessary to run the programs.
Standard of Review
Upon a petition for review, we consider a case as though it has been originally filed in this Court. Sharp County Sheriff’s Office v. Ozark Acres, 349 Ark. 20, 22, 75 S.W.3d 690 (2002). We view the evidence in a light most favorable to the Commission’s decision, and we uphold that decision if it is supported by substantial evidence. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). 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 conclusions arrived at by the Commission. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).
Employee Status
In this case, we must determine whether Dixon was employed by the Salvation Army at the time he suffered injury on August 24, 2001. The purpose of the Workers’ Compensation Act is to pay benefits to workers who suffer injury or disease arising out of and in the course of employment. Ark. Code Ann. § 11-9-101 (Repl. 2002).
Employment is defined in the statutes as “[e]very employment in the State in which three (3) or more employees are regularly employed by the same employer in the course of business. . . .” Ark. Code Ann. § 11-9-102(11) (Supp. 2003). The typical worker’s compensation case on employee status presents the question of whether a person is an employee or an independent contractor. See, e.g., Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001). In other words, the cases assume that the person is performing labor or services for the benefit of another, and the only issue is whether that person is performing services as an employee or an independent contractor. The facts in our case are different because it is not clear that Dixon was performing labor or services for the Salvation Army. Clearly, Dixon was performing labor or services, but he was performing them as part of the alcohol rehabilitation program in which he had enrolled himself with the laudable goal of freeing himself from his addiction to alcohol.
The question that must be answered is whether Dixon was performing labor and services for the benefit of the Salvation Army or for his own benefit. Typically, an employee is one who renders labor or services to another for salary or wages. Liberty Mut. Fire Ins. Co. v. Canal Ins. Co., 177 F.3d 326 (5th Cir. 1999). See also Colonial Ins. Co. of Cal. v. Am. Hardware Mut. Ins. Co., 969 P.2d 796 (Colo. 1998). According to Donald Montgomery, Salvation Army’s Drug and Alcohol Rehabilitation Program Director in Fayetteville, Dixon voluntarily entered a sixteen-week work-therapy program to assist him in gaining control over his alcohol addiction. Dixon was housed and fed at the facility at no cost as part of the program. Montgomery further testified that Dixon agreed to perform whatever work was assigned as a part of the program and that he agreed to attend therapy sessions and various meetings designed to assist him in his recovery.
Appellant cites Olsten Kimberly Quality Care v. Pettey, 55 Ark. App. 343, 934 S.W.2d 956 (1996), for the proposition that all this court need do in determining whether workers’ compensation benefits are due is decide whether Dixon provided a direct or indirect benefit to the work of the Salvation Army. The issue is a good deal more complicated than that.
The Salvation Army is a charity. Ramsey v. American Auto. Ins. Co., 234 Ark. 1031, 356 S.W.2d 236 (1962). It is a religious movement. People v. Sparks, 335 Ill. App. 3d 249, 780 N.E.2d 781 (2002). It collects and sells donated items to raise money to pay for its operations. See, e.g., Vaughn v. State, 289 Ark. 31, 709 S.W.2d 73 (1986). However, the Salvation Army is not in the business of selling used items. Rather it sells used items to pay in part for its religious and philanthropic programs designed to assist those in need in our society. It derives a substantial portion of its income from its investments. Coulombe v. The Salvation Army, 790 A.2d 593 (Me. 2002). Its adult rehabilitation centers are only funded in part by the sale of donated items. City of Lewiston v. The Salvation Army, 710 A.2d 914 (Me. 1998).
The Salvation Army operates adult rehabilitation centers in multiple states. Id. In California, the courts have made successful completion of Salvation Army drug rehabilitation programs a condition of probation. See, e.g., People v. Correll, 229 Cal. App. 3d 656, 280 Cal. Rptr. 266 (1991). In Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996), this court observed that the circuit court sentenced appellant to perform thirty hours of public service for the substance abuse program at the Salvation Army in Fayetteville. The nature of the Salvation Army rehabilitation program was described in United States v. Rutherford, 323 F. Supp. 2d 911 (E.D. Wis. 2004):
On December 26,2002, he entered a drug treatment program at the Salvation Army Rehabilitation Center in Dallas, Texas. He completed the program on May 1, 2003. Defendant complied with all requirements of the program, including passing random drag tests and attending numerous classes, such as Narcotics Anonymous, Alcoholics Anonymous, Relapse Prevention, Family Matters, Character Building and a host of others. Defendant attended Chapel every Wednesday and Sunday, and paid for his participation in the program by working as a floor person in a Salvation Army store.
Rutherford, 232 F. Supp. 2d at 912. According to Montgomery, Dixon performed well and made progress.
Dixon was promised and received a gratuity that began at $7.00 per week and increased by one dollar per week to a maximum of $20.00 per week. He did not receive hourly or other compensation based on labor or services performed. Dixon was paid an hourly wage after his injury when he was hired subsequent to recovery from his injury upon application for employment.
The sum Dixon was given while in the alcohol rehabilitation program was intended to allow him to purchase minor personal items he might need that were not provided by the program. Later after the injury, when he went to work for the Salvation Army, Dixon filled out an employment application and was paid a wage of about $7.00 per hour. At that point, he was an employee, but what is at issue is Dixon’s status at the time of his injury.
Where a person engages in conduct that might be considered work, but does it to further his own benefit rather than to further the benefit of another, the person is not an employee. Lance v. New Mexico Military Inst., 70 N.M. 158, 371 P.2d 995 (1962). In Joyce v. Pecos Benedictine Monastery, 119 N.M. 764, 895 P.2d 286 (1995), the court concluded that Joyce was not an employee entitled to workers’ compensation benefits where she was injured while carrying out work designed to facilitate her spiritual development as a novice preparing to join the monastery. Joyce received room, board, and $25.00 per week, and she indicated her motivation was the love she had for God. Dixon similarly received room, board, a nominal sum, worked as assigned to assist in his goal to free himself from alcohol, and was at the Salvation Army Rehabilitation Center out of a desire to improve himself.
The burden is on the claimant to show a causal connection between his or her injury and employment. C.J. Horner Co. v. Stringfellow, 286 Ark. 342, 691 S.W.2d 861 (1985). In order to qualify for workers’ compensation, there must be employment. Ark. Code Ann. § 11-9-101.
Schneider v. Salvation Army, 217 Minn. 448, 14 N.W.2d 4671 (1944), and Hall v. Salvation Army, 261 N.Y. 110, 184 N.E. 691 (1933), are cited by both parties in the briefs. Both cases involve injured persons who were employed by the Salvation Army to work and who received both wages and other compensation in room and board. The facts of these cases are not analogous to the facts of this case, where the work Dixon performed was temporary work therapy designed to assist him in overcoming his addiction. In Schneider, the Minnesota Supreme Court expressly stated that its decision did not affect earlier decisions finding no employment relationship where indigent men were given temporary work for the purpose of building up their stamina. In Hall, the claimant was “on the pay roll,” and received $3.00 per week plus room and board.
The parties also cite McBeth v. Salvation Army, 314 So.2d 468 (La. Ct. App. 1975). In McBeth, McBeth came to the Salvation Army as an alcoholic and entered the rehabilitation program just as Dixon did. McBeth was injured in an accident when he was working on a Salvation Army truck picking up discarded items. The discussion of the Louisiana Court of Appeals is helpful:
The Salvation Army is a Christian Protestant church and a nonprofit Georgia corporation. Every Salvation Army officer is an ordained minister. It has a Men’s Social Service Center in New Orleans which operates a rehabilitation program for homeless men with treatable handicaps. Most of those who come to the Center are alcoholics. They are given food, clothing, a place to sleep and a small weekly gratuity for such expenses as cigarettes, soft drinks, razor blades, etc. The gratuity varies and is dependent on the needs of each recipient; it is not based upon the type or amount of work he performs. There is no minimum allowance for beneficiaries but about $4.50 to $5 a week is considered sufficient for those newly admitted. In the case of alcoholics, for rehabilitation purposes The Salvation Army has found it inadvisable to give too much money. As a part of the rehabilitation program, all beneficiaries are required to do some sort of work to get their minds off their problems and as a matter of personal pride in themselves. The maximum given a beneficiary is $15 per week and for those who progress satisfactorily, it is possible to work up to employee status where they can earn a regular hourly wage, can accept outside employment and can live in the community rather than in the Center.
The Center in New Orleans is self-supporting. It obtains discarded items which are donated. These items are processed, refurbished and sold to the public. The program generates gross sales of approximately $450,000 per year, income derived from the donation of the discarded items and from the work of the beneficiaries and employees. The income so obtained pays for the operation of the Center, including the maintenance of the beneficiaries and employees, such as room, board and gratuities to the beneficiaries and salaries to the employees.
McBeth, 314 So.2d at 469-70. McBeth was denied workers’ compensation benefits. The court in McBeth held that the program was provided for McBeth’s benefit, and that he was not employed or rendering service to the Salvation Army. Likewise, Dixon was not in the employment of the Salvation Army at the time he was injured, and he is not entitled to workers’ compensation benefits. | [
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PER CURIAM
Lin 2012, a Sebastian County Circuit Court jury found appellant Aaron Flemons guilty of three counts of delivery of cocaine and one count of delivery of a counterfeit substance, and he received an aggregate sentence of 552 months’ imprisonment in the Arkansas Department of Correction. The judgment reflected sentence enhancements for Flemons’s habitual-offender status and, for the cocaine delivery charges, proximity to a church or park. The Arkansas Court of Appeals affirmed the judgment. Flemons v. State, 2013 Ark. App. 239, 2013 WL 1681775.
In separate proceedings later the same year, Flemons was also convicted of fleeing apprehension and leaving the scene of a personal injury accident in Sebastian County Circuit Court case number CR-ll-987, and he received an aggregate sentence of 360 months’ imprisonment that was to run consecutively to the sentences imposed in the earlier 12conviction. The court of appeals also affirmed that judgment. Flemons v. State, 2013 Ark. App. 280, 2013 WL 1857690.
Flemons filed timely pro se petitions for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2015) as to both judgments, and he later filed amended petitions in both matters. The trial court consolidated the proceedings, held a hearing on the petitions, and entered a single . order denying both petitions as amended. Flemons appeals that order. We affirm.
On appeal, Flemons’s first three points challenge the trial court’s denial of his motions for a continuance, for appointment of counsel, and for a copy of certain trial transcripts. Flemons first asserts that the trial court erred in denying his two requests for a continuance on the day of the Rule 37 hearing. Flemons contends that he was denied due process when the court failed to grant a continuance because he had been given incorrect information by the clerk’s office about the procedures for having subpoenas issued for his witnesses.
The general standard of review for an alleged error in denying a motion for continuance is abuse of discretion. Green v. State, 2012 Ark. 19, 386 S.W.3d 413. Arkansas Rule of Criminal Procedure 27.3 (2015) provides that a court shall grant a continuance only on a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case. The burden of establishing an abuse of the trial court’s discretion is the appellant’s, and, in addition to demonstrating that the court abused its discretion by denying the motion, the appellant must show prejudice that amounts to a denial of justice. Riddell v. State, 2011 Ark. 21, 2011 WL 291870. When a motion for continuance is 13based on a lack of time to prepare, we consider the totality of the circumstances, and a lack of diligence alone is sufficient cause to deny a - continuance. Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 (2007).
■ In this case, Flemons concedes facts that establish a lack of diligence, which is further supported by the record of the proceedings. The trial court granted two earlier requests for a continuance, one from each party. The second such order scheduled the hearing for February 12, 2014. Flemons admitted in a motion that he filed January 9, 2014, that he delayed taking any action to obtain witnesses or evidence because he had been confident that his motion for appointment of counsel filed in November 2013, would be granted, although it was not. He also asserted in his request to the trial court at the Rule 37 hearing that he had delayed action because of his unfounded belief that the pending motion for appointment of counsel would be granted. While he contends that he also delayed action because he wished to amend the petition, both petitions were amended in November 2013.
At that timé, Flemons was well aware of all allegations that he would need to support, and he was in a position to seek the necessary subpoenas. Instead, he apparently chose to gamble on the outcome of a pending motion, which he hoped would reheve him of that responsibility. As the trial court explained in its rulings on Flem-ons’s motions made the day of the hearing, his confusion over the clerk’s instructions for obtaining subpoenas may have justified some delay if Flemons had acted with diligence to obtain the subpoenas, after he had allegedly been given incorrect or confusing information in August 2013. Instead, Flem-ons did not act on that information until February 2014, shortly before the hearing date and moré than two months after he amended the Rule 37.1 petitions. Flem-ons’s lack 14of diligence as demonstrated by a delay of more than two months from the time that Flemons had fully formulated his claims was sufficient cause for the • trial court to deny the motions for continuance.
Flemons next alleges error in the trial court’s denial of his motion for appointment of counsel. Flemons contends that he was entitled to counsel to assist him in developing his claims for the Rule 37 proceedings under the- United States Supreme Court’s holdings in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) and Trevino v. Thaler, — U.S. -, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). This court has rejected the argument that Martinez and Trevino require appointment of counsel. Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259. The trial court has discretion to appoint counsel under Arkansas Rule of Criminal Procedure 37.3(b) (2015), and, in order to demonstrate an abuse of discretion by the trial court in declining to appoint counsel, an appellant must have made a substantial showing that his petition included a meritorious claim. Walden v. State, 2016 Ark. 306, 498 S.W.3d 725 (per curiam). Flemons did not make such a showing, and there was no abuse by the trial court in denying his motion for appointment of counsel.
Flemons also alleges error in the denial of his requests for a copy of the transcripts of his trials. Indigency alone does not require a trial court to provide a petitioner with free photocopying: Demeyer v. State, 2016 Ark. 9, 2016 WL 192696 (per curiam). To be entitled to a copy of a transcript or other written material at public expense, a convicted defendant must demonstrate to the court a compelling need for the transcript or other material to support a specific allegation contained in a timely petition for postconviction relief. Id. Here, Flemons pointed the trial court to no specific allegations for which there was a compelling need for material from the transcript in order to develop his arguments. He alleged that one | transcript was needed to identify inconsistencies in the confidential informant’s testimony, but he failed to explain how these inconsistencies would support any specific issue in his petition. Such vague, conclusory declarations did not provide a demonstration of the compelling need required in order to support granting a request for a copy of the transcript.
Flemons’s remaining points on appeal are claims that the trial court erred in denying postconviction relief by failing to find ineffective assistance of counsel. This court will not reverse a trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922; Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Turner v. State, 2016 Ark. 96, 486 S.W.3d 757.
When considering an appeal from a denial of a Rule 37.1 petition based on ineffective-assistance-of-eounsel claims, the sole question presented is whether, based on the 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 finding that counsel 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. Id.
Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set forth in Strickland. Rasul v. State, 2015 Ark. 118, 458 S.W.3d 722. Under that standard, to | ^prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced his defense. Mister v. State, 2014 Ark. 446, 2014 WL 5494016. Unless a petitioner makes both showings, the allegations do not meet the benchmark on review for granting relief on a claim of ineffective assistance. Houghton, 2015 Ark. 252, 464 S.W.3d 922.
Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Henington v. State, 2012 Ak. 181, 403 S.W.3d 55. A petitioner claiming deficient performance must show that counsel’s representation fell below an objective standard of reasonableness, and this court must indulge in a strong presumption that counsel’s conduct falls within, the wide range of reasonable professional assistance. Id. A petitioner has the burden of overcoming the presumption that counsel is effective by.identifying specific acts and omissions that, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.
Flemons initially asserts in only general, conclusory terms that the trial court committed error as to all of Flemons’s ineffective-assistance claims in his two petitions, reasserting his arguments in the previous points on appeal. For the reasons already noted, Flemons’s previously asserted claims fail. The remainder of Flemons’s argument in this first point alleging ineffective assistance of counsel consists of only conclusory statements. Alegations of bare conclusions do not overcome the presumption of trial counsel’s competence. Anderson v. State, 2011 Ak. 488, 385 S.W.3d 783. Where an appellant does not allege in what regard the trial court’s rulings on ineffective-assistance claims were clearly |7erroneous, his arguments fail because conclusory statements cannot be the basis of posteon-viction relief. Id.
In Flemons’s next point on appeal, he contends that trial counsel was ineffective because she failed to adequately investigate the procedures used by the drug-task-force- officers in conducting the controlled buys that resulted in the drug charges and convictions and because counsel did not, prior to trial, interview Greg Napier, the officer who conducted the search of the confidential informant (“Cl”) who carried out the controlled buys. Flem-ons alleged that counsel failed to obtain the relevant policies and that, had she done so, she could have more effectively cross-examined the witnesses and challenged the search procedures used. Flem-ons’s argument fails because he did not demonstrate that a more probing investigation would have changed the outcome of the trial.
A claimant must show that there is a reasonable probability that the fact-finder’s decision would have been different . absent counsel’s alleged errors in order. to meet the second prong of the Strickland test. Sales v. State, 2014 Ak. 384, 441 S.W.3d 883. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. In reviewing an assertion of ineffective assistance of counsel based on failure to investigate, a petitioner must describe how a more searching pretrial investigation would have changed the results of his trial. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. The burden is entirely on the claimant to provide facts that affirmatively support his claims of prejudice. Id.
As the trial court found, trial counsel thoroughly cross-examined the witnesses at trial concerning the procedures used to search the CL Counsel brought out a number of issues 1 ¿with the search methodology used, and Flemons did not show that pointing to any particular variation from an established policy would have made the challenge any more effective or that counsel would have learned anything of significance from an interview with the officer who conducted the search. As a consequence, Flemons failed to demonstrate a reasonable probability that the jury’s decision would have been different absent counsel’s alleged errors. Flemons therefore failed to meet his burden to demonstrate prejudice for his claim that counsel was ineffective for the failure to investigate.
In his next point on appeal, Flemons contends that trial counsel was ineffective for not raising a defense of entrapment and for not having the jury instructed on that defense. The trial court found that counsel had made a strategic decision not to pursue the defense.
Under Arkansas Code Annotated section 5-2-209 (Repl. 2013), a defendant may raise an affirmative defense that he was entrapped into committing an offense when a law-enforcement officer or any person acting in cooperation with a law-enforcement officer induces the commission of an offense by using persuasion or other means likely to cause a normally law-abiding person to commit the offense. The statute provides that conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. Ark. Code Ann. § 5-2-209(b)(2). This court has held that a defendant may request jury instructions on entrapment when there is sufficient evidence to support the instruction even though the defendant denies an element of the charge. Smoak v. State, 2011 Ark. 529, 385 S.W.3d 257. As noted in Smoak, the two theories of defense are inconsistent, however.
| flCounsel testified at the Rule 37 hearing that she made a strategic decision not to use an entrapment defense. She explained that she believed the defense was, as a practical matter, impossible to prove, and she indicated that she did not want to risk having evidence of Flemons’s past drug use brought in to counter an entrapment defense. Counsel brought out through testimony that the Cl had asked to meet at the park, and she testified that she believed that this evidence may have helped the jury conclude that the minimum enhancement for the proximity enhancements was appropriate. Counsel did not believe that there was sufficient evidence to support entrapment as to the delivery charges. Because no drugs or buy money were found in Flemons’s possession, she believed the innocence defense that she elected to utilize instead was a stronger defense.
When a decision by trial counsel is 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. Van Winkle v. State, 2016 Ark. 98, 486 S.W.3d 778. It is well settled that trial counsel’s decisions regarding what theory of the case to pursue represent the epitome of trial strategy. Id. Here, Flemons contends that the decision not to utilize an entrapment defense was not reasonable. He contends that it was not necessary for him to testify to present an entrapment defense, that his prior convictions may not have been admissible, and that, because evidence of entrapment concerning the proximity enhancement was admitted, the jury should have been instructed as to the defense.
Even if Flemons may have been entitled to a jury instruction on entrapment, his attorney was not ineffective simply for failing to request the instruction. This court has recognized that an “all-or-nothing” approach in the decision not to request instructions on | inlesser-included offenses is not unreasonable simply because the strategy fails. Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734. The circumstances here are similar. Counsel explained her reasons for not pursuing an inconsistent defense to what she believed was a relatively strong innocence defense. Flemons failed to show that a decision by trial counsel not to dilute the impact of a stronger defense with jury instructions on an inconsistent defense or the presentation of confusing argument about such a defense was unreasonable. The trial court, therefore,' was not clearly erroneous in denying postconviction relief on this issue.
In Flemons’s final point concerning the judgment on the drug charges, he alleges error by the trial court in finding that Flemons’s claim that the prosecutor withheld information concerning Officer Napier’s personnel file was not cognizable. Flemons contends that he was entitled to raise any constitutional issue in the Rule 37 proceedings. He was not.
With the exception of fundamental error that renders the judgment void and subject to collateral attack, it is not appropriate to raise trial error, including constitutional errors, for the first time in a Rule 37 proceeding. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). We have held allegations of prosecutorial misconduct to be the type of issue that should have been raised on direct appeal and therefore may not be raised for the first time in Rule 37 proceedings. Id. Direct challenges, including allegations such as prosecutorial misconduct, are not cognizable in Rule 37 proceedings. Wood v. State, 2015 Ark. 477, 478 S.W.3d 194. Even an allegation that evidence was withheld by the prosecution in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), may not constitute fundamental error that would render the judgment subject to collateral attack so as to be cognizable in Rule 37 Inproceedings if the issue was one that could have been raised at trial or on direct appeal. Frazier v. State, 2016 Ark. 55, 482 S.W.3d 305 (per curiam).
In this case, even assuming that Flemons’s claim that the prosecution withheld evidence could be construed as an allegation of fundamental error and not one that could have been raised at trial or on appeal, he included only conclusory statements in the petition without a factual basis sufficient to-raise a Brady violation. A petitioner under Rule 37.1 has the burden of pleading facts to support his claims, and conclusory allegations that are unsupported by facts do not provide a basis for an evidentiary hearing on the claim or for postconviction relief. Henington, 2012 Ark. 181, 403 S.W.3d 55. Flemons failed to identify any specific information that was contained in the personnel file, and he therefore failed to allege any factual basis in support of his claim that the file may have been used to impeach Napier. Such conclu-sory statements cannot be the basis of postconviction relief.
Turning to Flemons’s allegations of ineffective assistance of counsel concerning the judgment of conviction for fleeing apprehension and leaving the scene of a personal injury accident in case number CR-11-987, his first two points on appeal assert that trial counsel was ineffective for failing to timely object to Flem-ons’s appearing in front of the jury in restraints and for failing to request a cau tionary instruction in that regard. The record from the direct appeal indicates that there was a discussion between Flemons and the judge before the jury panel was brought in. Flemons notes that the judge encouraged him to change |i2into civilian dress but that there was no specific discussion of the restraints until a later conversation, after the State rested its case, concerning whether Flemons would testify.
During the Rule 37 hearing, co-counsel testified that she and the lead attorney had tried to persuade Flemons to change into civilian clothes before going into thé court room. They had explained that, if he would .do. so, there was a leg-brace restraint that should fit under the civilian clothes and would not be visible to the jury. Flemons refused, and he continued to refuse to change into civilian clothing when brought into the court room. After counsel objected to Flemons’s appearing in his jail clothes, without any mention of the restraints, the judge cautioned Flemons that his actions would be considered a waiver and that, because he had declined the invitation to change into civilian clothing, he would be considered to have chosen to appear before the jury “as he is.”
When Flemons was asked, after the State rested, whether he wished to testify, he initially responded that he could not do so because' he was shackled. After some discussion in which Flemons continued to be uncooperative in responding to questions, his attorney admitted that she had not previously objected specifically to the restraints and moved for a mistrial on the bases that Flemons was dressed in prison garb and that he .was in restraints. The motion was denied. Counsel then moved for an instruction regarding the jail attire, and the court agreed to provide one. The instruction given addressed both Flem-ons’s clothing and the restraints and cautioned the jury to disregard those facts during their deliberations.
In its order denying postconviction relief, the trial court, found that counsel had objected to the restraints and that Flem-ons had failed to demonstrate any prejudice from his | ^counsel’s failure to request a curative instruction on the restraints. The court also noted that Flemons should not be permitted to complain of prejudice resulting from his own willful behavior and commented that a failure to draw further attention to Flemons’s obstinateness may not have been beneficial but did not rise to the level of prejudice to support Flemons’s claim.
Even if, as Flemons maintains, counsel was late in objecting, to the restraints or failed to request an appropriate jury instruction, he has not demonstrated prejudice from those, actions, to satisfy the second prong of the Strickland standard. This court has held that a defendant cannot be allowed to abort a trial and frustrate the process of justice by his own acts. Britton v. State, 2014 Ark. 192, 433 S.W.3d 856. The evidence at the Rule 37 hearing was that Flemons refused to change into civilian clothing even after it was explained to him that this change would allow him to wear restraints that would not be visible to the jury. Flemons offers only his own irritation for being shackled as an excuse for his lack of cooperation, and, Flemons has not shown that, had counsel also timely objected to Flemons appearing before the jury in the restraints, the objection would have been any more successful than the motion concerning the jail clothing or the motion for mistrial. As for counsel’s failure to request that the cautionary jury instruction include an admonition about the restraints, the instruction did include such an admonition. Because Flemons failed to demonstrate that he was prejudiced by the alleged deficient performance, the trial court was not clearly erroneous in denying relief on these issues.
Flemons next asserts that counsel was ineffective for failing to investigate his mental state as a defense to the charges. On appeal, Flemons contends that counsel should have ludiscovered a determination by an administrative law judge that Flem-ons was disabled and had been diagnosed with impulse-control disorder. We need not address this issue.
In his Rule 37.1 petition, Flemons alleged that counsel had failed to adequately investigate the case, but Flemons did not include the argument raised on appeal in his petition. Flemons did raise the issue during the Rule 37 hearing, but, to the extent that Flemons may have sought to amend his petition during the hearing to include the new issue, he did not obtain the trial court’s permission to do so. See Adams v. State, 2013 Ark. 174, 427 S.W.3d 63 (holding that under Arkansas Rule of Criminal Procedure 37.2(e), the trial court had discretion to deny leave to amend a petition); see also Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999) (holding that the trial court did not abuse its discretion in denying an effort to amend on the day of the Rule 37 hearing in order to add a new claim). Even if Flemons had been granted leave to amend his petition to include the claim, he failed to obtain a ruling on it. Van Winkle v. State, 2016 Ark. 98, 486 S.W.3d 778 (holding that an argument was not preserved for appellate review and this court was precluded from review on appeal where the trial court had not provided a ruling on the argument).
In Flemons’s next point on appeal, he alleges ineffective assistance of counsel for failure to investigate and present mitigation evidence for sentencing. The trial court found that counsel had investigated and considered possible mitigating evidence and then made a strategic decision not to use that evidence. On appeal, Flem-ons contends that counsel did not conduct an adequate investigation in order to make such a decision and that counsel could have presented evidence of Flemons’s mental state as described in the disability | ^determination noted in the previous point by calling the doctor who had diagnosed him with an impulse-control disorder.
In cases where the defendant was not subject to the possibility of the death penalty, the failure to investigate, discover, and present mitigating evidence , is not deemed ineffective assistance of counsel. State v. Smith, 368 Ark. 620, 249 S.W.3d 119 (2007)., Although Flemons. received the maximum sentence possible on the charges in this case, the Strickland standard must nevertheless be satisfied, as with any other allegation of ineffective assistance of counsel for failure to investigate, and a petitioner must demonstrate that a more searching pretrial investigation would have changed the results of his trial, Wertz, 2014 Ark. 240, 434 S.W.3d 896. The trial court found that trial counsel had investigated mitigating evidence and made a strategic decision not to present any. As previously noted, when a decision by trial counsel is 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. Van Winkle, 2016 Ark. 98, 486 S.W.3d 778.
Flemons does not now dispute that counsel made an investigation of possible mitigating evidence or that counsel was aware of his diagnosis with an impulse-control disorder. Instead, he contends that counsel’s strategic decision not to further investigate this evidence and call the doctor who diagnosed him was unreasonable. Trial counsel testified that, in her professional experience, the twelve previous felony convictions that Flemons had at the time of this trial would have outweighed any mitigating evidence that may have been available. Specifically, she noted that evidence concerning Flemons’s diagnosis was not likely, in her professional opinion, to have been beneficial in this case and may instead | 1fihave been damaging. We cannot say that the trial court was clearly erroneous in finding that counsel’s decision fell within the wide range of reasonable professional assistance.
Flemons next alleges that appellate counsel was ineffective for failing to raise an argument on appeal challenging the sufficiency of the evidence based on the motion for directed verdict that was made on the fleeing charge. In the direct appeal, the court of appeals noted that the argument that had been made in the motion for directed verdict as to the fleeing-apprehension charge was different from the argument made for leaving the scene of an injury accident. Flemons, 2013 Ark. App. 280. On appeal, the argument as to both charges was that there was not sufficient evidence that Flemons drove the car. At trial, the argument concerning the fleeing-apprehension charge had been that there was insufficient evidence that the driver of the vehicle knew that his apprehension was imminent. Flemons is correct that the trial court erroneously found that the court of appeals had disposed of that argument on appeal.
Nevertheless, the trial court was not clearly erroneous to deny postcon-viction relief on this claim. We will affirm a trial court’s decision if it reached the right result, albeit for the wrong reason. Jones v. State, 347 Ark. 409, 64 S.W.3d 728 (2002). Counsel is not ineffective for failing to make a motion or argument that is without merit. Watson v. State, 2014 Ark. 203, 444 S.W.3d 835. Had appellate counsel raised the challenge to the sufficiency of the evidence that had been raised at trial, the challenge would have failed.
The testimony at trial was that three officers were conducting a sobriety checkpoint. When Flemons came to the checkpoint, one of the officers came up to the car and asked Flemons for his driver’s license. Flemons stated that he did not have it with him, and the 1^officer instructed Flemons to move to the right shoulder. Flemons pulled the car over, but as the officer approached it, he sped off. These facts are sufficient to establish that Flem-ons knew that his immediate arrest or detention was being attempted by a duly authorized law-enforcement officer, and a challenge to the sufficiency of the evidence on the basis raised in the motion for directed verdict would have failed if raised on appeal. See Ark. Code Ann. § 5-54-125(a) (Repl. 2016).
Finally, Flemons urges this court to reconsider its stance regarding cumulative error. This court does not recognize cumulative error in allegations of ineffective assistance of counsel. Turner v. State, 2016 Ark. 96, 486 S.W.3d 757. It is reversible error for the trial court to consider cumulative error in its analysis of claims of ineffective assistance of counsel under the Strickland test. State v. Hardin, 347 Ark. 62, 60 S.W.3d 397 (2001). A party asking this court to overrule a prior decision such as this has the burden of showing that our refusal to overrule the prior decision would result in injustice or great injury. Houghton, 2015 Ark. 252, 464 S.W.3d 922. Although Flemons contends that we have misinterpreted Strickland, he develops no argument in that regard. As we did in Houghton, we decline to overrule our previous decisions on this issue for that reason.
Affirmed.
. We may take judicial notice of the record from the earlier appeal without need to supplement the record. Adkins v. State, 2015 Ark. 336, 469 S.W.3d 790 (per curiam). At Flem-ons's request, the trial court admitted into evidence at the Rule 37 hearing the abstract from Flemons’s attorney’s brief on direct appeal in order to better illustrate these facts. | [
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PER CURIAM
|!Petitioner Alphonso S. Wilson is incarcerated in the Arkansas Department of Correction pursuant to a 2004 judgment reflecting his conviction for capital murder based on accomplice liability for which he was sentenced to life imprisonment without parole. This court affirmed Alphonso’s conviction as an accomplice to murder, concluding that sufficient evidence supported the conviction based on Alphonso’s taped confession that he had actively participated in the murder, together with his mother, Denise Wilson, and his brother, Charles Stevenson. Wilson v. State, 365 Ark. 664, 667, 232 S.W.3d 455, 458-59 | ¾(2006). Denise’s murder conviction was likewise affirmed by this court. Wilson v. State, 364 Ark. 550, 222 S.W.3d 171 (2006). Denise did not testify at the trial of Alphonso but she had provided statements to police implicating both of her sons in the murder. Id. at 552, 222 S.W.3d at 174.
Now before this court is Alphonso’s pro se application to reinvest jurisdiction in the trial court to consider a petition for a writ of error coram nobis based on an allegation that exculpatory evidence had been withheld by the State, In support of the allegation, an affidavit is attached to the petition, executed by Denise and stating that she lied about Alphonso’s participation in the murder. In the affidavit, Denise avers that the murder was committed by Charles at her encouragement, that Alphonso did not play a part in the murder because “it was already committed,” and that Alphonso did not have any idea that the murder was about to take place. Alphonso’s petition and the attached affidavit fail to establish a basis for coram-nobis relief. Alphonso has also filed a motion “for a belated reply.” Because there is no provision that allows a petitioner to file a reply brief to a response to a coram-nobis petition, the motion to file a belated reply brief is also denied. Ark. Sup. Ct. R. 2-l(a)(d) (2015).
We first note that a petition filed in this court for leave to proceed in the trial court'where the judgment was entered 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. Roberts v. State, 2013 Ark. 56, at 11, 425 S.W.3d 771, 778. A writ of |serror coram nobis.is an extraordinarily rare remedy. Howard v. State, 2012 Ark. 177, at 4, 403 S.W.3d 38, 42-43. Coramnobis proceedings are attended by a strong presumption that the judgment of conviction is .valid. Id. 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 and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Id. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Id.
The writ is allowed only under compelling circumstances ■ to achieve justice and' to address errors of the most fundamental nature. Id. We have held that a writ of error coram riobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Id.
Despite Alphonso’s allegation that exculpatory evidence had been withheld at the time of his trial, there is no .-evidence establishing that Denise provided any statement to investigators or the prosecutor exonerating either of her sons at the time all three were separately tried and convicted of capital murder. In fact, on appeal of her conviction, Denise did not dispute the facts established at her trial that the murder had been committed in concert with both sons, but she maintained that her participation in the crime was minimal such that her actions did not support her conviction as an accomplice. Wilson, 364 Ark. at 552-55, 222 S.W.3d at 174-76. In any event, the extent of Alphonso’s culpability in the crime based on what he knew or did not know or what he did or did not do at the time |4the crime was committed were facts that were surely known to him and could have been presented to investigators and at his trial through his own testimony. Instead, Alphonso, for reasons he fails to explain, provided a taped confession to investigators admitting to his knowledge and participation in the murder.
To the extent that Alphonso contends that the affidavit represents a third-party confession that Denise was Charles’s sole accomplice to the crime, it is a confession that was made over ten years after Alphonso’s conviction has been affirmed on appeal and therefore does not fit within the relief afforded by the writ. We have limited claims of third-party confessions to the period before affirmance of the judgment of conviction. Wallace v. State, 2015 Ark. 349, at 9-10, 471 S.W.3d 192, 198-99. This is so because the questions of fact, which invariably accompany an allegation of a third-party confession, demand prompt scrutiny. Id. (citing Brown v. State, 330 Ark. 627, 630, 955 SW.2d 901, 902 (1997)). We have explained that the mere fact that another person has confessed to a crime cannot, alone, be grounds for relief as such confessions are not uncommon and must be approached with some skepticism. Wallace, 2015 Ark. 349, at 10, 471 S.W.3d at 199. Assessing the merits of a third-party confession requires that all of the evidence be available and unimpaired by the passage of time so that the trial court’s examination can be exhaustive and decisive. Id. Our requirement that a claim of a third-party confession must be raised before affirmance serves to limit such claims to the time frame in which it is most likely that the trial court can determine with certainty whether the writ should issue. Id.
Furthermore, although Denise did not testify at Alphonso’s trial, her recent affidavit recants statements she made to police that Charles and Alphonso committed the murder. \5Wilson, 364 Ark. at 552, 222 S.W.3d at 174. A claim of recanted testimony, standing alone, is not cognizable in an error-coram-nobis proceeding. McArthur v. State, 2014 Ark. 367, at 5, 439 S.W.3d 681, 684 (2014) (citing Anderson v. State, 2012 Ark. 270, 423 S.W.3d 20 (per curiam)). We are not required to accept the allegations in a petition for writ of error coram nobis at face value. Goff v. State, 2012 Ark. 68, at 3, 398 S.W.3d 896, 898 (per curiam). We are likewise not required to accept at face value the allegations set forth in an affidavit executed over ten years later that recants statements made to investigators immediately following the crime.
Finally, Alphonso fails to establish that the statements set forth in Denise’s affidavit would have resulted in a different verdict. Taylor v. State, 303 Ark. 586, 594, 799 S.W.2d 519, 524 (1990). As set forth above, Alphonso was convicted based on his own admissions of guilt wherein he described his actions after his mother and brother had returned home and informed Alphonso that they had assaulted the victim. Denise states in her affidavit that the murder “had already been committed.” However, Alphonso admitted to police that, after the initial assault had been perpetrated by his mother and brother, Alphonso had returned to the scene of the crime where the victim lay unconscious but was still alive and that he aided his brother in finalizing the murder and assisted in disposing of evidence. There is nothing in the recent affidavit executed by Denise that disproves Alphonso’s description of the events that took place following the assault initially perpetrated by Denise and Charles. Alphonso has shown neither the type of fundamental error nor facts which would have prevented rendition of the judgment so as to warrant this court reinvesting | (jurisdiction in the trial court to consider a petition for writ of error coram nobis. Thomas v. State, 367 Ark. 478, 482, 241 S.W.3d 247, 250 (2006).
Petition denied; motion denied.
, Specifically, Alphonso told investigators that his mother, Denise, and his brother, Charles, had carried out the initial assault on the victim and returned home, at which point Alphonso became involved in the crime; that ■ Alphonso directed Charles to return to the scene and complete the murder as the victim was still alive; that he accompanied Charles to the scene and put on gloves and stood by while Charles inflicted the fatal wounds; and that Alphonso hid one of the murder weapons and disposed of keys taken from the victim’s home. | [
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Tom Glaze, Justice.
Appellant Brady Carter brings this appeal from his convictions of kidnapping, third-degree battery merged with first-degree terroristic threatening, and robbery. Carter argues that, at the bench trial of this case, the trial court erred in denying his motion for directed verdict, claiming the State’s evidence fell short in proving these convictions. We hold that the trial court correctly found the evidence sufficient to support the kidnapping and terroristic threatening convictions.
Carter also asserts that the State failed to prove either a robbery or an aggravated robbery conviction. However, the State, in its cross-appeal, contends the trial court misinterpreted this court’s holding in Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003), causing the trial court to erroneously reduce Carter’s aggravated robbery charge to the lesser included crime of robbery. We grant the State’s cross-appeal because the trial court erred when it concluded Smith was legal precedent which required the trial court to reduce the State’s aggravated robbery to robbery.
We first address the sufficiency of evidence issues Carter raises, because an appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors. Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). In reviewing the sufficiency of the evidence, this court views the evidence in a light most favorable to the State and considers only the evidence that supports the verdict. Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998).
As previously noted, this case was a bench trial, and in such trials, the trial judge is in a superior position to evaluate the witnesses and to weigh their credibility. Johnson v. State, 337 Ark. 196, 202, 987 S.W.2d 694, 698 (1999). Moreover, when the defendant takes the stand in his defense and offers his own account of the events, as Carter did here, it is well settled in this state that the factfinder may resolve questions of conflicting testimony and inconsistent evidence, and may choose to believe the State’s account of the facts, rather than the defendant’s. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000).
With these standards in mind, we consider Carter’s suggestion that the State failed to prove his kidnapping conviction. In Arkansas, a person commits the offense of kidnapping by intentionally restraining another person without his or her consent for the purpose of obtaining a ransom or reward, or for any act to be performed or not performed for the person’s return or release, or for inflicting physical injury upon them, including engaging in sexual intercourse, deviate sexual activity, or sexual contact. Ark. Code Ann. § 5-ll-102(a)(l) and (4) (Repl. 1997). “Restraint without consent” includes “restraint by physical force, threat, or deception[.]” Ark. Code Ann. § 5-11-101(2) (Repl. 1997).
At trial, the State presented the testimony of the victim, Albert McVay, who said that Carter robbed and kidnapped him on March 21, 2002. McVay testified that Carter came to his home with three other individuals, and, after duct-taping his mouth and arms, they forced him at gunpoint to accompany them to Carter’s home. McVay further testified that Carter robbed him of $2,040 cash that he had on his person. McVay maintained that Carter and his friends continually beat him from the time he was initially kidnapped until the time he was returned to his home. Although Carter eventually returned McVay to his home, McVay averred that before Carter left, he threatened to kill both McVay and his girlfriend, Stephanie Childress, who was not home when Carter and his friends confronted McVay. Carter also threatened to blow up McVay and Stephanie’s house if McVay failed to return with $2,000 more to Carter’s house by 8:00 a.m. the next day. Clearly, the evidence presented by the State supports the kidnapping conviction.
Carter next questions the State’s evidence that resulted in his first-degree terroristic threatening conviction. Arkansas Code Annotated § 5-13-301 (Repl. 1997) provides that a person commits the offense of terroristic threatening if, with the purpose of terrorizing another person, he threatens to cause the death or serious physical injury or substantial property damage to another person. On this point, Carter simply argues that the evidence against him was “highly suspect.”
In short, Carter challenges the veracity of the victim, McVay; however, as previously stated, a witness’s credibility is a question of fact for the trial court .Johnson, supra. Moreover, there was sufficient evidence presented at trial that Carter threatened to kill both McVay and Stephanie and to blow up their house if McVay did not later return to Carter’s home with more money. Because the trial judge was in the superior position to weigh the credibility of the evidence, Carter’s conviction for first-degree terroristic threatening is affirmed.
In his third point, Carter first asserts that the State failed to prove him guilty of either robbery or aggravated robbery. His contention on this point is without merit, because the State presented sufficient evidence to prove either offense. Under Ark. Code Ann. § 5-12-102(a) (Repl. 1997), a person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ or threaten physical force upon another. Aggravated robbery, on the other hand, occurs when a person commits a robbery while “armed with a deadly weapon” or if the assailant “represents by word or conduct that he is so armed or inflicts or attempts to inflict death or serious physical injury upon another person.” See Ark. Code Ann. § 5-12-103(a) (Repl. 1997).
Carter offered testimony and evidence at trial that conflicted with the State’s evidence. However, we review the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Jordan v. State, 356 Ark. 248, 254, 147 S.W.3d 691, 694 (2004); Wilson v. State, supra. As discussed above, McVay testified that Carter and his friends came to McVay’s residence, and, after duct-taping his mouth and arms, they forced him at gunpoint to accompany them to Carter’s home. Carter then took $2,040 cash that McVay had on his person. McVay maintained at trial that Carter and his friends continually beat him from the time they kidnapped him and until they returned him to his home. Before leaving, Carter threatened to kill both McVay and Stephanie and to blow up their home unless McVay returned to Carter’s home the next morning with $2,000 or more. After Carter left, McVay phoned the police to give them his account of what occurred. At trial, Officer J. P. Marriet, who investigated McVay’s report of events, testified that, although Carter did not admit to any of the other charges, Carter admitted to having beaten McVay. In addition, Stephanie and another friend, Stevie Owens, testified that, although they were not present when McVay was kidnapped, they did see McVay after he was returned to his house; he was wet, burned, bruised, bleeding, and scared.
Based on the foregoing evidence, the trial court specifically found that it believed McVay’s story that a gun was utilized during this criminal episode, and also found “there’s no question that blows to [McVay’s] face and [his] head, together with the abrasions and burn marks. . . constituted serious physical injury.” Although the trial court made these factual findings that supported the aggravated robbery charge, it cited this court’s recent decision of Smith v. State, supra, for the proposition that to prove aggravated robbery, the State was required to show the “gun” was used as a gun, and not as a club. The trial court held that, under Smith, it had no legal or statutory authority to convict Carter of aggravated robbery because the State failed to prove the element that Carter had employed his firearm as a firearm. We agree with the issue raised by the State on cross-appeal, namely, that the trial court erred in its interpretation and application of the rule of law established in Smith.
In Smith, the defendant was charged with the crime of first-degree battery under § 5-13-207(a)(1) and (7) (Repl. 1997). In the present case, Carter was charged with aggravated robbery, a crime which contains different statutory elements. To prove first-degree battery under § 5-13-207, the State must show the defendant had both the intent to cause physical injury to another person by means of a firearm and that such injury resulted. In the Smith case, this court had to determine whether the striking of a person with the butt of a pistol constituted first-degree battery; the State’s robbery statutes were not involved in Smith. By way of contrast, this case involves the aggravated robbery statute. In order to obtain a conviction for aggravated robbery, the State did not need to show that a deadly weapon was actually used upon McVay, but only that Carter either was armed or represented that he was armed when he threatened to harm McVay. Consequently, the aggravated robbery was complete when physical force was threatened. See Williams v. State, 351 Ark. 215, 225, 91 S.W.3d 54, 60 (2002). Therefore, the trial court’s application of Smith to the present matter was erroneous. The State presented evidence that unquestionably showed that Carter employed or threatened to employ physical force while he was armed with a deadly weapon. See §§ 5-12-103(a) and 5-12-102(a).
For the above reasons, we affirm Carter’s convictions on the sufficiency of the evidence; however, we reverse and remand the robbery conviction for further proceedings. See State v. Zawodniak, 329 Ark. 179, 946 S.W.2d 936 (1997) (when a trial judge makes an error of law rather than an error of fact, double jeopardy is not implicated). | [
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Betty C. Dickey, Justice.
Roger Brooks started chatting on the internet with a fourteen-year-old girl, who turned out to be a North Little Rock Police Officer, working undercover. After they had made plans to meet in North Little Rock to have sex, six officers of the North Little Rock Police Special Crime Unit arrested Brooks at Rivercrest School, Mississippi County, where he was a teacher, a coach, and vice-principal. The officers searched Brooks’s home and interrogated him in Mississippi County, pursuant to a valid search warrant from Mississippi County.
On November 3, 2003, the Second Judicial District Prosecutor, representing Mississippi County, charged Brooks with knowingly possessing or viewing photographs over the internet depicting sexually explicit conduct involving a child. Ark. Code Ann. § 5-27-602 (Supp. 2003). The pictures were found on the hard drive of a computer seized from Brooks’s house in Wilson, Arkansas. On December 23, 2003, the Sixth Judicial District Prosecutor, representing Pulaski County, charged Brooks with computer child pornography. Specifically, he was charged with using a computer internet service to either seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or individual believed to be a child to engage in sexually explicit conduct. Ark. Code Ann. § 5-27-603 (Supp. 2003). This charge was based on the internet chat conversations between Brooks and the North Little Rock Police female officer who pretended to be a fourteen-year-old girl.
On January 7, 2004, Brooks filed a motion to dismiss or, in the alternative, a motion to transfer his case from the Pulaski County Circuit Court to the Mississippi County Circuit Court. At a February 11, 2004 hearing in Pulaski County, the trial court took under advisement the defense motions challenging that circuit court’s jurisdiction. On May 3, 2004, the Pulaski County court granted Brooks’s motion to transfer his case to Mississippi County. On May 12, 2004, the Sixth Judicial District Prosecutor moved to rescind that court’s transfer order, or, in the alternative, to reconsider the court’s ruling.
At a June 1, 2004 hearing, the Sixth Judicial District Prosecutor asked the trial court to rescind its previous order to transfer the case, arguing that Pulaski County and Mississippi County had concurrent jurisdiction. Brooks argued that the trial court properly applied Arkansas Rule of Criminal Procedure 21.3 (2004), by ordering that all charges against him be joined and tried in the Second Judicial District. Judge Proctor granted the motion to transfer and stated, “I think it would put the state in a position where they could, if they decide to, take an interlocutory appeal. I tried to put the record in a position where it could be decided on appeal by the Appellate Court.”
The final order was entered on June 24, 2004, stating “upon consideration of the pleadings and corresponding law, the hearings held in this matter, and the arguments of counsel, specifically those related to Arkansas Rules of Criminal Procedure Rule 21 et seq. and Rule 23.1, the State’s motion is DENIED.” The State, on behalf of the Sixth Judicial District Prosecutor, argues: (1) that the trial court erred as a matter of law by purporting to transfer Brooks’s prosecution outside the judicial district where the offense was charged, or, (2) in the alternative, that this court should issue a writ of certiorari to review the trial court’s transfer order and invalidate it.
We first review whether this is an interlocutory or direct appeal. The trial court repeatedly and mistakenly refers to this as an interlocutory appeal in this colloquy during the final hearing.
The Court: All right. Okay. And also, if the State decides to take an interlocutory appeal, this is a final decision on the merits.
Ms. Raney: We have no more case left.
The Court: Rdght. So I think it would put the State in a position where they could, if they decide to, take an interlocutory appeal. I tried to put the record in a position where it could be decided on appeal by the Appellate Court.
Ms. Raney: And I appreciate that very much. And you have denied my motion to reconsider, and you have granted the motion to transfer or dismiss on the basis of motion to transfer, the defendant’s motion to transfer based on joinder, is that correct, which is the defendant raised on his motion?
The Court: Right. And I did not grant the motion to dismiss either. That has not been granted.
Ms. Raney: So it wouldn’t be an interlocutory because we now have no case in Pulaski County. That’s been taken away from us, correct? So it would be a direct appeal or cert., a motion for a cert. Is there anything else that I need to do to make my record? I guess I need to say I object.
Thank you for your patience, and I thank Mr. Banks for his patience.
The Court: Do we have one more or is that — all right. We’re adjourned then.
(Emphasis added.)
Despite the trial court’s misappellation, we find this was a final order, as the Sixth Judicial District Prosecutor indicated when she said, “we have no more case left.” This issue is properly before us under Arkansas Rules of Appellate Procedure — Criminal 3(c), which provides that this court review cases that involve the correct and uniform administration of the criminal law.
This court’s review of the State’s appeals is not limited to cases that would establish precedent. State v. Dawson, 343 Ark. 683, 38 S.W.3d 319 (2001); State v. Thompson, 343 Ark, 135, 34 S.W.3d 33 (2000); State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997). As a matter of practice, this court has only taken appeals “which are narrow in scope and involve the interpretation of law.” Id.; State v. Banks, 322 Ark. 344, 345, 909 S.W.2d 634 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. Id.; State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994). Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916). Where the resolution of the issue on appeal turns on the facts unique to the case, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000); State v. Guthrie, 341 Ark. 624, 19 S.W.3d 10 (2000).
In accordance with Rule 3(c), this court accepts the appeal by the State in this case because it is narrow in scope, involves the interpretation of the law, and involves the correct and uniform administration of justice which requires us to review this point.
This appeal raises the question of whether criminal proceedings can be transferred from one judicial district to another. This court has held that disposition of a criminal charge which occurs outside the territorial boundaries of the judicial district in which the charge was brought is void. State v. Circuit Court of Lincoln County, 336 Ark. 122, 984 S.W.2d 412 (1999). While a defendant in a criminal case may waive venue within the territorial boundaries of a judicial district, a defendant may not do so where charges have been filed in a county outside of those boundaries. Id. This court held that such an extraterritorial order by a circuit judge in a criminal case was void, and that jurisdiction for such an order could not be waived or conferred by consent. Id.
While it is true that both counties have jurisdiction in this case, the trial court lacked the authority to transfer to the Second Judicial District. The trial court did not have the power or authority to join or transfer a case outside of its jurisdiction. Such an order would bar a prosecutor from prosecuting crimes within his or her jurisdiction simply because a defendant would prefer a different district with concurrent jurisdiction. An accused is not entitled to a judicial review of the prosecutor’s filing an information charging him with an offense. Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). Each prosecutor in each district has the sole authority, with grand jury’s concurrent authority, to bring charges within that district. The Arkansas Constitution provides that the duty of charging an accused with a felony is reserved to the grand jury or to the prosecutor. State v. Knight, 318 Ark. 158, 884 S.W.2d 258 (1994). We have consistently held that a circuit judge does not have the authority to amend the charge brought by the prosecuting attorney. State v. Knight, supra; Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992); State v. Hill, 306 Ark. 375, 811 S.W.2d 323 (1991); State v. Brooks, 301 Ark. 257, 783 S.W.2d 368 (1990).
In Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999), this court held that the choice of which charges to file against an accused is a matter entirely within the prosecutor’s discretion. Transferring a criminal count from one prosecuting attorney’s district to another has the effect of impermissibly compelling the receiving prosecuting attorney to file charges in his district, or have no criminal prosecution at all. Here, the Second Judicial District Prosecutor could have exercised his authority within his jurisdiction by filing the criminal count at issue, but he did not; the Sixth Judicial District Prosecutor chose to exercise his authority instead.
Brooks cites Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986), as justification for joinder of the charges in Mississippi and Pulaski County. In that case, Cozzaglia was convicted of kidnapping in Washington County and was convicted of rape in Madison County. This court held that the trial judge should have granted appellant’s motion for joinder, and reversed and dismissed the rape conviction. Id. Cozzaglio could have been tried in either county for both offenses, but not separately on separate charges. Cozzaglio stands for the proposition that a defen dant’s motion for joinder of two or more offenses should be granted when they are within the same jurisdiction of the same court, for example, within Sixth Judicial District from Perry County to Pulaski County. However, this appeal involves charges not in different counties within the same district, but two separate districts. The duty of charging an accused with a felony is reserved to the grand jury and the Prosecuting Attorney. State v. Knight, 318 Ark. 158, 884 S.W.2d 258 (1994).
Ark. R. Crim. P. 21.1 (2004) states:
Two (2) or more offenses may be joined in one (1) information or indictment with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both:
(a) are of the same or similar character, even if not part of a single scheme or plan; or
(b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.
(Emphasis added.) This rule is permissive and not mandatory. Once Brooks was charged in the Sixth Judicial District, the trial court possessed no power to transfer the case outside the district. The trial court’s order is reversed and the case is remanded for prosecution in the Sixth Judicial District.
Since we reverse based on the trial court’s attempt to transfer the appellee’s prosecution outside the judicial district where the offense was charged, the State’s alternate argument that we issue a writ of certiorari is moot. The appellee’s motion to dismiss the appeal is denied.
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LARRY D. VAUGHT, Judge
bln this division-of-property dispute, appellant A. Powell Sanders argues that the Sebastian County Circuit Court clearly erred in awarding appellee Ann Kay Pass-more full interest in an account she held jointly with her mother; in finding that Passmore loaned him $40,991.50 and ordering him to repay the loan; and in inequitably dividing the parties’ • personal property. On cross-appeal, Passmore contends that, if we reverse the trial court’s distribution of the account she owned with her mother, then the trial court clearly erred in equally distributing the parties’ six retirement accounts. On direct appeal, we affirm in part and reverse and remand in part. We hold that the cross-appeal is moot.
The parties were married on June 7, 2003, and they had a son on May 26, 2006, The parties separated on April 3, 2012. On July 2, 2012, Sanders filed a complaint for divorce, and on July 16, 2012, Passmore filed an answer and a counterclaim for divorce.
12At a May 8, 2013 hearing, Sanders dismissed his complaint with prejudice, and the case proceeded on Passmore’s counterclaim. Passmore, a plastic surgeon, testified that she and Sanders married when they were in their thirties. She said they each had their own accounts when they married and that they kept their accounts separate during the marriage. She stated that before their marriage, she and her mother were joint owners of a checking account and a savings account. Pass-more stated that during her marriage her income was deposited directly into the savings account and then transferred to the checking account from which she paid the family’s expenses. Passmore requested that she be awarded all of these two accounts.
Passmore further testified that prior to the marriage she. and her mother were joint owners of a BKD Wealth Management Services account (BKD account). According to Passmore, she was an only child, her father was deceased,, and her mother used her retirement to support Passmore through college, medical school, and a five-year residency. She • testified that the BKD account was repayment to her mother for supporting her (Pass-more’s) medical education and that she wanted her elderly mother to have financial resources should her health deteriorate or if anything happened to Passmore. Passmore told the trial court that during the marriage she sporadically contributed to the account and that neither Sanders nor Passmore’s mother contributed funds to the account. The value of the BKD account was $468,561. Passmore requested that she be awarded all.of this account.
Passmore stated that before and during the marriage she contributed to her 401(k) plan valued at $509,346.53 and her two IRA accounts valued at $98,144.26. Additionally, she saidjjthat during the marriage she funded two IRA accounts for Sanders valued at $53,568.22. Passmore said that Sanders did not contribute any funds to these accounts. Passmore re quested that she be awarded full interest in her 401 (k) and her two IRA accounts.
Passmore also explained that she and Sanders owned a hobby farm that was not profitable. She asked that she be awarded the farm, horses, equipment, and any tax liability related to the business. She further sought repayment of loans that she claimed she had made to Sanders for his law firm totaling $43,991.50. Finally, Pass-more described various items of personal property owned by the parties and offered testimony concerning their value.
Sanders, a lawyer, testified that he contributed to the parties’ lifestyle much more than Passmore described. He stated that he and/or his law firm contributed financially to the marriage by purchasing vehicles and paying for insurance and taxes on some of their vehicles. He said that he paid for dinners out; phone, internet, and cable bills; groceries; a TV and sound system; a wine cellar; farm improvements; and family vacations. He also bought lavish gifts for Passmore during their marriage, including five fur coats, jewelry, shoes, and a watch. Sanders said that he demonstrated significant support and advancement of Pass-more’s career and that he played an integral part in running the farm by setting up the corporation, traveling to purchase horses and equipment, and paying .the farm manager’s salary. Finally, Sanders stated that during the marriage he purchased a separate home for $47,000 and spent money on his girlfriend by taking her on vacations, paying her utilities, and giving her cash and gifts. |4He also' told the court that he spent tens of thousands of dollars in marital funds for a health coach in Dallas and a life coach in Florida.
Sanders further stated that while married he contributed to his own IRA account valued at $7,889.11. He requested one-half of the marital portions of Pass-more’s 401 (k), her two IRA accounts, and the BED account. He denied that Pass-more’s payments to his law firm were loans. And he also disputed the value of several of the -items of personal property, claiming that there was debt associated with several of the items. He requested that the parties’ personal property be sold and the proceeds divided equally.
A divorce , decree was entered by the trial court on May 28, 2013, .granting Pass-more a divorce-based on general indignities, awarding her custody of the parties’ child subject to Sanders’s visitation rights, and ordering Sanders to pay child support. While the decree resolved several property issues, between the parties, the trial court reserved ruling on issues concerning the retirement and bank accounts, personal property, the farm business, and notes receivable, affording the parties the opportunity to resolve the issues on their own.
The parties were unable to agree, and on July 9, 2013, the trial court entered an order distributing and disposing of the remaining marital assets. Relevant to this appeal, the trial court found that Sanders’s IRA account and the two IRA accounts that Passmore had funded on his behalf were marital property to be divided equally between the parties. The trial court also found that Passmore’s 401(k) and two IRA accounts were partially nonmarital and marital property and awarded Sanders half of the marital portion of these accounts. The trial court next awarded Sanders $47,531 as his marital portion of the BED account. However, in the same order, the trial court found that the BED account and the checking and savings accounts | Kfchat Passmore jointly held with her mother were to be awarded to Passmore in full. As for the farm, the trial court awarded it and'its associated debt to Passmore, Sanders was -awarded sole ownership of the 2008 BMW, 2008 Harley Davidson, 2013 Yamaha , four-wheeler, 1982 Datsun, and 2002 Honda VTX. Passmore was awarded the 2008 Dodge truck and the Kubota tractor. The triql court ordered that the remaining personal property (a 1992 Master-Craft boat, an Airstream trailer, a Great Dane trailer, and a Peterbilt tractor) be distributed via a private auction between the parties using a sealed bidding procedure. 'Finally, the trial court " found that $40,991.50 in payments from Passmore to Sanders were loans and ordered him to repay them. On July 18, 2013, the trial court, sua sponte, entered an amended order identical to the original order except it deleted the finding that Sanders was entitled to $47,531 of the BKD account.
Sanders filed a motion for new trial, which the trial court denied on August 20, 2013. Sanders appealed. Our court dismissed the appeal, holding that because there was no final order, we lacked jurisdiction. Sanders v. Passmore, 2014 Ark. App. 237. On remand, the parties each filed motions to enforce the divorce decree. After a hearing, the trial court, entered a letter opinion finding that there was- no compelling "reason to change the distribution it had made in the amended order. An order was-entered on December 17, 2015. Sanders’s appeal and Passmore’s cross-appeal followed.
I. Motion to Strike
Passmore contends that Sanders’s reply brief contains arguments that were not included in his original brief; therefore, they must be struck. Specifically, she contends that Sanders argued in his original brief that the trial court must reverse its unequal distribution of |fithe BKD account and that in his reply brief he expanded his argument to include the checking and savings accounts. We agree.
An argument made for the first time on reply comes too late. Orintas v. Point Lookout Prop. Owners Assn. Bd. of Dirs., 2015 Ark. App. 648, at 2-3, 476 S.W.3d 174, 176. Unless the appellant opens the briefing with all its arguments for reversal, the appellee has no opportunity to respond to those arguments in writing. Id. at 3, 476 S.W.3d at 176. It is well established that we will not consider an argument made for the first time in a reply brief. Id., 476 S.W.3d at 176. Because Sanders raised new arguments in his reply brief, we grant Passmore’s motion to strike those arguments.
II. Direct Appeal
Sanders first argues that the trial court clearly erred in awarding Passmore full interest in the BKD account. While acknowledging that Passmore opened the account prior to their marriage, he argues that it is undisputed that she used marital funds to contribute to the BKD account.
Arkansas Code Annotated section 9-12-315 (Repl. 2015) governs the division of marital property. Section 9-12-315(a)(l)(A) provides that marital property is to be divided equally unless it would be inequitable to do so. If the property is divided unequally, then the court must give reasons for its division in the order. Ark. Code Ann. § 9-12-315(a)(l)(B). The code also provides a list of factors the court may consider when choosing unequal division. Ark. Code Ann. § 9-12-315(a)(l)(A)(i)-(ix).
Section 9-12-315 does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Copeland v. Copeland, 84 Ark. App. 303, 307, 139 S.W.3d 145, 149 (2003). The trial court is vested with a measure of flexibility-in apportioning the total assets held in the marital estate upon divorce, and the critical inquiry is how the total assets are divided. Id., 139 S.W.3d at 149. The trial court is given broad powers, under the statute, to distribute all property in divorce cases, marital and nonmarital, in order to achieve an equitable distribution. Id., 139 S.W.3d at 149.
This court reviews division-of-marital-property cases de novo. Id., 139 S,W.3d at 148. With respect to the division of property in a divorce case, we review the trial court’s findings of fact and affirm them unless they, are clearly erroneous or against the preponderance of the evidence. Skokos v. Skokos, 344 Ark. 420, 425, 40 S.W.3d 768, 771-72 (2001). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that.a mistake has been committed. Id. at 425, 40 S.W.3d at 772. In order to demonstrate that the trial , court’s ruling was erroneous, an appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. Id. at 425, 40 S.W.3d at 772. We give due deference to the trial court’s superior position to determine the credibility of witnesses and the weight to be given their testimony. Id., 40 S.W.3d at 772.
Citing Baxley v. Baxley, 92 Ark. App. 247, 250, 212 S.W.3d 8, 10 (2005), Sanders contends that the trial court’s unequal division .of the BKD account is not justified based solely on the circumstance that the marital funds had been earned by Pass-more and placed in a separately titled account. He also claims that the trial court merely recited the statutory factors in a conclusory. fashion and failed to explain why Passmore should get all of the account.
In Baxley, we reversed and remanded the trial court’s division of property where it was obvious from the trial court’s comments that it had awarded the appellee 100% of her [ Rretirement accounts—that she owned prior to marriage and into which she contributed marital funds—simply because she was the person who had earned the money placed into the accounts. Id., 212 S.W.3d at 13. However, unlike Baxley, the trial court in the case at bar did not base its unequal division of the BKD account in question solely on the fact that Passmore was the sole contributor. Instead, the trial court considered many of the statutory factors and explained why they supported its decision to award Pass-more full interest in the account.
The trial court found that the parties had not married until their late thirties, the marriage lasted only ten years, and during the marriage the parties kept their personal bank accounts and investments totally separate—they were not co-owners, or even authorized signatories, on each other’s accounts. Further, the trial court found that Passmore is a physician, Sanders an attorney, and both parties were well established in their professions with tremendous earning potential; that each party was a high-income earner; that neither party asked for alimony and neither party needed financial assistance from the other; and that neither party had any health issues that would impose any financial pressure. The trial court noted that the BKD account was owned by Passmore and her mother prior to the marriage and that the purpose of the account was to provide healthcare and living expenses to Passmore’s mother, who spent her personal retirement funds on Passmore’s medical education. The court found that Passmore is an only child, that her father is deceased, and that Passmore’s mother is single.'- Finally, the trial court found that Sanders did not contribute any funds toward the acquisition, preservation, or appreciation of the account.
Sanders maintains that the primary reason that the trial court awarded Passmore all of the BKD account was for the care of Passmore’s mother.' He argues that because she passed |9away several months after the amended order had been entered that reason is' no longer valid and the finding must be reversed. We disagree. As set forth above, the trial court considered multiple factors to support its' unequal distribution of the BKD account. On this record, it is deaf that the trial court considered the BKD account unlike other assets involved in this casé. Therefore, we hold that the trial court did not clearly err in awarding Passmore all of the BKD account. Accordingly, we affirm Sanders’s first point on appeal.
Sanders’s second point on appeal challenges the trial court’s finding that Passmore loaned him money for his law firm. At trial, Passmore testified that she had made three loans, totaling $43,991.50, to Sanders for the benefit of his law firm because he could not make payroll. She claims that one loan was made on November 17, 2009, for $28,991.50; a second was made on June 9, 2011, for $12,000; and a third was made on March 14, 2012, for $3000. Sanders did not deny receiving the $28,991.50 and $12,000 payments from Passmore for his law firm; however, he contended that there was never any agreement between the parties that they were loans that he would repay. He testified that the $3000 payment was Passmore’s contribution toward a family vacation. The trial court found that Passmore’s payments of $28,991.50 and $12,000—for a total of $40,991.50—were loans to Sanders for the benefit of his law film and ordered him to repay her. In reaching this conclusion, the trial court found that Sanders “did not present any competing evidence in connection with the loans.”
| ¶nPursuant to Fine v. Fine, 209 Ark. 754, 192 S.W.2d 212 (1946), there is a rebuttable presumption that Passmore’s payments to Sanders were intended to be gifts. To overcome the presumption, she must establish by clear and convincing evidence that the payments were not gifts. As in Fine, the evidence here is conflicting. Passmore argues that the conflicting evidence created a “he said/she said” credibility determination that the trial court made in her favor. However, our supreme court in Fine held that this type of equally conflicting evidence “falls short of that full, ‘clear and convincing’ effect which the law requires in order to establish the alleged [loan] agreement' and trust relationship sought to be established.” Fine, 209 Ark. at 759,192 S.W.2d at 214.
The only evidence to support Passmore’s loan-agreement claim was her testimony that she went to the bank with Sanders and was told how much money his firm needed, and she and Sanders agreed that she would loan him the money. Passmore conceded that there was no document to establish their loan agreements, that she did not write “loan” on any of her checks to Sanders when it was her practice to write on a check what it was for, that they did not discuss the payment of interest, and that she did not care to be paid back while they were married. There was no evidence that she demanded repayment during their marriage, just that “he ought to pay it back” because they were divorcing. This concession alone demonstrates that at the time she paid Sanders the money, she did not intend to be repaid. Further, Passmore did not present testimony from a bank representative to corroborate her loan-agreement claim, and she did not present evidence that she had requested security for the loans.
11 tFor these reasons, we conclude that Passmore failed to prove by clear and convincing evidence that she rebutted the presumption that her payments to Sanders were gifts. Accordingly, we hold that the trial court clearly erred in finding that Passmore loaned Sanders $40,991.50, and we reverse the portion of the amended order directing Sanders to repay her that amount.
Sanders’s final point on appeal is that the trial court clearly erred in ordering an unfair division of eleven items of their personal property. The trial court awarded Sanders five of those eleven items (the 2008 BMW, 2008 Harley Davidson, 2018 Yamaha four wheeler, 1982 Datsun, and 2002 Honda VTX), which the trial court found had a collective value of $61,475. The trial court awarded Passmore two of the eleven items (the 2008 Dodge truck and Kubota tractor), which the trial court valued at $48,400. The remaining four items were distributed to the parties via the private auction.
Sanders first claims that the trial court’s division of these eleven items was clearly erroneous because it significantly overstated the value of the 2002 Honda that he received; awarded him the 2008 BMW and the 2012 Yamaha, which were encumbered with significant debt; and awarded two items to Passmore that were free of debt. He claims that if the property and debt were properly valued, he was awarded personal property with a value of $11,000, which is less than one-quarter of the value of the personal property awarded to Pass-more.
We have long recognized that trial courts, in traditional equity cases, have broad powers to distribute the property in order to achieve an equitable division. Jones v. Jones, 2014 Ark. 96, at 6, 432 S.W.3d 36, 40. The trial court is vested with a measure of flexibility in apportioning the -total assets held-in the marital estate upon divorce, and the critical inquiry is how the total | ^assets are divided. Id., 432 S.W.3d at 40. The overriding purpose of the property-division statute is to enable the court to make a division that is fair and equitable under the circumstances. Id., 432 S.W.3d at 40. This court has observed that marital property cannot always be divided exactly equally and in kind. Id. at 6-7, 432 S.W.3d at 40. The property-division statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Id. at 7, 432 S.W.3d at 40-41. We will not'substitute our judgment on appeal as to the exact interest each party should have but will decide only whether the order is clearly wrong. Id., 432 S.W.3d at 41.
Here, there was conflicting evidence regarding the personal property. Passmore testified about the value of the items and supported her testimony with estimates from the NADA Guides and other estimates found on- the internet. Sanders’s valuation and indebtedness evidence was based solely on his testimony. Ultimately, the trial court awarded Sanders a greater portion of this property—he received items valued at $61,475 and Passmore received items valued at $48,400. In doing so, the trial court gave Passmore only two of the seven items—the two she needed for the farm, a business in which Sanders testified he had no interest. Sanders received the remaining five items.
Sanders complains of the debt associated with the 2008 BMW (his vehicle) and the Yamaha four-wheeler, yet he failed to present any documentation to support his indebtedness claims. Second, because the trial court awarded Sanders the greater share of these assets, it is possible that the court did take the indebtedness into consideration. Finally, while the allocation of marital debt is an essential item to be resolved in a divorce dispute and must be considered in the context of the distribution of all of the parties’ property, Arkansas |13Code Annotated § 9-12-315 and its presumption of equal division do not apply to the division of marital debts. Adams v. Adams, 2014 Ark. App. 67, at 16, 432 S.W.3d 49, 60. There is no requirement that the marital debt be subtracted from the marital assets to determine the “net” value of tlxe total award made to each party in all divorce cases. Id., 432 S.W.3d at 60. A determination as to how debts should be allocated between the parties will not be reversed unless it is clearly erroneous. Id, 432 S.W.3d at 60. We hold that Sanders failed .to demonstrate that the trial court’s decision is clearly erroneous.
Sanders also argues that the trial court clearly erred in requiring the parties to participate in a sealed-bid private auction to dispose of the boat, the Airstream trailer, the Great Dane trailer, and the Peterbilt tractor. The parties exchanged sealed bids for these four items. Sanders was the high bidder for the boat, and Passmore was the high bidder for the remaining three items. Based on the amounts bid, Passmore was ordered to pay Sanders $20,949.
Sanders now contends that the most equitable way to distribute these items would have been to sell them at a public auction and equally divide the proceeds. However, Sanders failed to preserve this argument for appeal. At no time below did Sanders object to the private auction. Instead, he willingly participated in the process, which took place in July 2013, the day after the amended order had been entered. Once the results of the private auction were released, Sanders did not object despite the- opportunity to do so. In August 2013, Sanders moved for a new trial. In October 2015, he filed a cross-motion to correct the amended order. He did not raise any objections to the private auction in either motion. A hearing was held ¡on November 30, 2015, on Sanders’s cross-motion, and Sanders’s counsel made no objection-to the private auction. In fact, at the hearing, the trial court stated that the amounts for the items | ¡¿involved in the private auction had been introduced without objection. Sanders’s first objection to the private auction comes in this appeal—nearly three years later.
Any error argued on appeal must have first been directed to the trial court’s attention in some appropriate manner, so that court had an opportunity to address the issue. Stacks v. Jones, 323 Ark. 643, 647, 916 S.W.2d 120, 122 (1996). Our court continues to adhere to the well-settled rule that issues not raised in the trial court will not be considered for the first time on appeal. Id. at 647, 916 S.W.2d at 122. We therefore hold that Sanders failed to preserve this argument, and we affirm the trial court’s division of the parties’ personal property.
III. Cross-appeal
Passmore contends that if we reverse the trial court’s distribution of the BED account, then we should reverse the trial court’s equal distribution of the parties’ six retirement accounts. The cross-appeal is moot based on our holding set forth above.
Affirmed in part and reversed and remanded in part on direct appeal; cross-appeal moot; motion to strike granted.
Harrison and Glover, JJ., agree..
. The checking account had a balance of $9,546.07, and the savings account had a balance of $141,647.23.
. Passmore also introduced expert testimony from a certified public accountant who offered testimony about the nonmarital value of the 401(k), the two IRA accounts, and the BKD account Passmore owned prior to her marriage.
. The trial court’s differential treatment of the BKD account and the parties’ six retirement accounts illustrates this point. The combined value of the retirement accounts is $480,718.32. The trial court equally divided the marital portions of the retirement accounts despite the fact that Passmore contributed nearly all of the funds ($472,829.21) to those accounts.
. Passmore also introduced several bank documents; however, these documents merely establish that she made payments to Sanders, which he does not dispute. | [
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Betty C. Dickey, Chief Justice.
Alan Taylor and Steven Hufstedler appeal a decision of the St. Francis County Circuit Court finding: (1) that appellants had no reasonable expectation of participation in the management and control ofBEIIFE, Inc.; (2) that the corporation’s by laws could be amended by the affirmative vote of fifty-one percent of the shares issued and outstanding; and, (3) that the actions of the appellants at the 2000 shareholders/board of directors meeting were a gross abuse of their discretion warranting their removal from the board of directors for a period of two years. Because this appeal involves an issue of first impression and issues of statutory construction, we have jurisdiction pursuant to Ark. Sup. Ct. R. 1—2(b)(1) and (6). We find no error and affirm the trial court.
Facts
Sometime in 1997, appellants Alan Taylor and Steve Hufstedler learned that Honda was planning to open a new franchise in Forrest City, Arkansas. Taylor is the general manager of J.T. Motorsports, which sells Honda motorcycles and ATVs, in Jonesboro, Arkansas. Hufstedler is also employed by J.T. Motorsports. Taylor’s father is the owner ofJ.T. Motorsports. Taylor currently has no ownership interest in J.T. Motorsports, but expects to inherit the business from his father. Honda has an internal rule which prohibits the ownership of adjacent Honda franchises. Because it, too, believed Taylor would inherit J.T. Motorsports from his father, Honda would not allow him to own the Forrest City franchise outright, and Hufstedler did not have the money to purchase it. Therefore, Taylor and Hufstedler needed a third party to participate in the franchise with them. Taylor and Hufstedler contacted appellee Michael Hinkle regarding the acquisition of the Forrest City franchise. Hinkle owned a business in Aubrey, Arkansas that sold used ATVs and provided some service work on AT Vs.
The three men formed BEIIFE, Inc., an Arkansas “S” Corporation, chartered for the sole purpose of acquiring and operating the Forrest City Honda franchise. Initially, Taylor and Hufstedler were to own 51% of the franchise, and Hinkle was to own the remaining 49%. However, due to philosophical differences as to how the business should be run (for example, Hufstedler said that he and Taylor were going to “go down there, stick it in them [the customers] and break it off’), Hinkle determined that he would not pursue the venture without a 51% interest and control of the corporation. Hinkle’s demand led to a meeting at the office of Jack Gentry, the corporation’s CPA, in November 1997. Following the meeting, the parties reached an understanding that Hinkle was to have a 51% interest in the company and that he would be in charge of the day-to-day operations of the Forrest City franchise. Later that month, Taylor filed BEIIFE’s articles of incorporation.
When the parties met with the Honda representative in December 1997 to sign the franchise papers, they were still arguing about ownership percentages. Honda came to the meeting with the original ownership percentages, and Hinkle refused to sign the papers unless he was given 51% interest. Due to all the disagreements, the Honda representative began packing up to leave the meeting. Because he feared that the deal was about to go under, Taylor agreed to allow the Honda representative to switch the percentages and give Hinkle 51%. Later that day, the parties ratified the articles of incorporation and adopted the corporate bylaws. Honda granted BEIIFE a franchise based on certain conditions. Hinkle was to continue to be the president of the corporation with the authority to make all dealership decisions, and any changes in ownership percentages or dealer manager required Honda’s prior written approval.
Although Hinkle, Hufstedler, and Taylor all agreed to contribute $10,000 each to capitalize the corporation, Hinkle was the only one who contributed any funds with which to start the business. Taylor refused to contribute because he got mad when Hinkle wound up with 51%. Hufstedler followed Taylor’s lead and likewise refused to contribute anything. Hinkle and his wife loaned the company over $70,000. In addition, because BEIIFE had no money for equipment, Hinkle had to borrow furniture, tools, equipment, and trucks from his business in Aubrey in order to equip the Forrest City Honda franchise. He leased all of this equipment to BEIIFE for $800 per month, less than it would normally cost to rent one of Hinkle’s trucks.
The Forrest City Honda franchise opened for business in 1998 and was an instant success. In 1998, the store had $2,900,000 in sales. The next year, the store recorded 4.3 million in sales. In 2000, the store did 5.1 million dollars worth of business, and the next year’s sales increased by $300,000. In 2002, the store made 6.5 million dollars in sales. Despite the financial success of the corporation, Taylor, Hufstedler, and Hinkle were in constant discord. Taylor and Hufstedler wanted to sell an in-house warranty, while Hinkle preferred a factory warranty. Taylor and Hufstedler wanted distributions with which to pay their taxes, whereas Hinkle wanted to reinvest the profits in the corporation. Taylor and Hufstedler’s goal was to maximize profits, but Hinkle did not think that maximizing profits to the point of gouging the customers was the proper way to do business.
The conflict reached critical mass at a January 2000 board of directors/shareholders meeting. Taylor began the meeting by passing around a checklist of items that he wanted put before the board, and he criticized Hinkle for not generating enough profits. Despite the requirements and conditions of the franchise agreements wherein Hinkle was to remain president and ownership percentages could not change without prior written approval from Honda, Taylor and Hufstedler ousted Hinkle as the president of BEIIFE and replaced him with Taylor. In addition, Taylor and Hufstedler passed a measure requiring the corporation to open a savings account with a Jonesboro bank and another authorizing the issuance of additional corporate stock, which could not be transferred to a non-shareholder. They also passed a measure allowing shareholders to purchase these shares up to their pro-rata ownership percentages, but the shares could only be purchased with cash, not with debt owed by the corporation. Before Taylor could move the corporation’s checkbook and mail from Forrest City to Jonesboro, Hinkle adjourned the meeting.
Shortly after the January 2000 board meeting, Hinkle filed this lawsuit seeking Taylor and Hufstedler’s removal from the board for gross abuse of discretion. He alleged their actions violated the Honda agreement, jeopardizing BEIIFE’s franchise. Although the parties originally sought the dissolution of the corporation, those claims were disposed of below, and thus are not before this court.
After a summary judgment hearing in December 2002, the trial court dismissed Hinkle’s claim for dissolution and lifted a previous stay order that had forced the parties to maintain the status quo. In January 2003, Hinkle noticed another stockholders/board of directors meeting, with the stated purpose of amending the bylaws: to remove the requirement that every director be a shareholder; to remove Taylor and Hufstedler as directors; and, to vote for directors. Tayior and Hufstedler responded with a new counterclaim seeking to enjoin Hinkle from amending the bylaws or removing them as directors, claiming that Hinkle’s actions were oppressive and violated their reasonable expectations of participating in managing BEIIFE. At the meeting, Hinkle voted all 51% of his shares and amended the bylaws, removing the requirement that directors be shareholders. He then voted his stock cumulatively and elected his wife, Janet, and himself to the board. She was the operations manager at the Honda dealership in Forrest City and had done the book work for Hinkle’s business in Aubrey. Taylor and Hufstedler pooled their votes to elect Taylor. Relying upon financial advice from Jack Gentry, BEIIFE’s CPA, regarding the reasonableness of compensation, Hinkle raised his salary from $39,000 to $75,000. Hinkle also increased the rent BEIIFE paid to Hinkle’s ATV for equipment and trucks by $2,700 per month, justifying that increase on solicited bids from third party vendors for the lease of like items. The amount quoted by those vendors was $9,491 per month for equipment and $801.82 per month for just one truck. In response, Taylor and Hufstedler sought a temporary restraining order to enjoin Hufstedler’s removal. The trial court denied the motion, noting that the issue could be revisited at trial.
Following a two-day trial, the court held that Taylor and Hufstedler’s actions at the 2000 board meeting constituted a gross abuse of discretion as directors and ordered their removal from the board for a two-year period. The trial court further held that neither Taylor nor Hufstedler had a reasonable expectation of participating in the management of BEIIFE, emphasizing that Taylor, Hufstedler, and Hinkle did not have an agreement about control. The trial court also held that Hinkle’s amendment of the bylaws was authorized by corporate documents and that all of the actions taken by the newly elected board were valid. This appeal follows.
Standard of Review
In bench trials such as this, the standard of review on appeal is not whether there is substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Ark.R.Civ.P. 52(a) (2004); Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002); Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001). 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. Sharp v. State, 350 Ark. 529, 88 S.W.3d 348 (2002). Disputed facts and determinations of credibility are within the province of the fact-finder. Sharp, supra; Pre-Paid Solutions, Inc. v. City of Little Rock, 343 Ark. 317, 34 S.W.3d 360 (2001).
Finally, a court considering a petition alleging oppressive conduct must investigate what the majority shareholders knew, or should have known, to be the petitioner’s expectations in entering the particular enterprise. Smith v. Leonard, 317 Ark. 182, 876 S.W.2d 266 (1994) (citing, In re Kemp & Beatley, Inc., 64 N.Y.2d 63, 473 N.E.2d 1173 (1984)). Majority conduct should not be deemed oppressive simply because the petitioner’s subjective hopes and desires in joining the venture were not fulfilled. Id. Disappointment alone should not be equated with oppression. Id.
Closely Held Corporations
Closely held corporations are unique creatures. Because of their small size, these corporations require “close cooperation” and “mutual respect” between shareholders. Meiselman v. Meiselman, 307 S.E.2d 555 (N.C. 1983). Shareholders in closely held corporations often reasonably expect their ownership to lead to a position in corporate management or corporate employment. McCauley v. Tom McCauley & Son, Inc., 724 P.2d 232 (N.M. Ct. App. 1986); see also, Action Cmty. Televison Broad. Network, Inc. v. Livesay, 564 S.E.2d 566 (N.C. Ct. App. 2002); Longwell v. Custom Benefit Programs Midwest, Inc., 627 N.W.2d 396 (S.D. 2001). As one court put it, “the shareholder in a close corporation considers himself or herself a co-owner of the business and wants the privileges and powers that go with ownership.” Mueller v. Cedar Shore Resort, Inc., 643 N.W.2d 56 (S.D. 2002). “Only in the close corporation does the power to manage carry with it the de facto power to allocate the benefits of ownership arbitrarily among the shareholders and to discriminate against the minority whose investment is imprisoned in the enterprise.” Meiselman, supra, at 559.
A limited market exists for the shares of closely held corporations because investors are extremely reluctant to buy a non-controlling interest when the majority shareholder wields the power to freeze out the minority. McCauley, supra. This limited market share means that the minority shareholders are powerless to vindicate their representative expectations by force and they have no way to escape a bad investment. Because of the potential for oppression, several jurisdictions recognize claims by minority shareholders to vindicate their “reasonable expectations.”e.g McCauley, supra, at 236. Construing Arkansas’s statute prohibiting “oppressive” conduct by directors, this state, in 1994, joined these jurisdictions. Smith, supra, (interpreting Ark. Code Ann.§ 4-26-1108(a)(1)(B)).
Reasonable Expectations
For their first point on appeal, Taylor and Hufstedler assert that the trial court erred in holding that they had no reasonable expectation in participation in the management of BEIIFE, Inc. We disagree. Despite the fact that the appellants intended to be in control originally, when they were to have 51% of the stock, any expectation of control of the corporation dissipated when Hinkle demanded 51% ownership and control of the day-to-day operations of the company, and both the parties and Honda signed the franchise agreement.
While Taylor and Hufstedler got Hinkle to promise to “consult” with them on all major decisions, indicating an expectation to have some say in managing the corporation, this does not demonstrate that they had an expectation of having an equal say in running BEIIFE, Inc. Furthermore, the minutes of the corporation’s annual meeting of shareholder and directors on January 5, 1998, reflected a subjective desire, rather than a reasonable expectation, of having an equal say in managing the corporation. The minutes in question stated:
The shareholders and directors next discussed ownership and voting requirements with respect to the corporation. It was noted that Michael Hinkle has 51% ownership interest, but that the minority shareholders and two directors would like for any decision to be based upon the decision of a majority of the existing shareholders and directors. Counsel for the parties was instructed to give further consideration to the issue.
In addition, there was a series of letters between Taylor and Hufstedler’s lawyer and Hinkle’s lawyer, which also showed that Taylor and Hufstedler only had a subjective desire of having an equal say in running the company. In a January 7, 1998 letter from Hinkle’s lawyer to Taylor’s lawyer, Hinkle’s lawyer wrote:
Michael Hinkle called me this morning and he told me that after thinking the matter over, he does not wish to relinquish 51% ownership in the corporation . . . Michael does assure me that he does not wish to be in a position of making any major changes or expenditures, but that he feels that he must be free to operate the business. As stated previously, he does agree to be required to give notice before any stockholder action is taken.
On May 13, 1998, Taylor’s lawyer wrote Hinkle’s lawyer and stated,
I originally forwarded to you a draft of the bylaw amendment back on February 11, 1998. I thought we were in agreement on this issue. It was my understanding that while Michael wanted to retain a majority ownership in the corporation, he was agreeable to corporate decisions being made by a majority vote of all three owners. The bylaw amendment is merely intended to accomplish this goal.
The bylaws already provide that only shareholders may be directors of the corporation. Currently, however, with his majority control, Michael Hinkle could conceivably amend the bylaws to delete this provision, then use his ownership to elect an outside director. All we are intending to do with the bylaw amendment is to make sure that all the owners will remain directors of the corporation, and that they will have an equal voice in any significant decisions regarding the corporate affairs (other than the decisions simply involving day-to-day operations of the business.)
On May 18, 1998, Hinkle’s lawyer responded by writing:
I think we have a misunderstanding about the bylaw agreement. The amendment to section five requires a two thirds majority of the outstanding and issued shares to pass any measure. This would defeat the entire purpose of Michael insisting that he own fifty-one percent of the outstanding shares.
Based upon the testimony and exhibits before it, the trial court, in a letter opinion, found that Hinkle went into this deal with the clearly-expressed intent that he would own 51% of the corporation and have control, and he was willing to lose the opportunity if he did not have that percentage and control. In addition, the trial court found that Taylor and Hufstedler decided to proceed with the business opportunity, perhaps believing that later they could get Hinkle to change his position, but this did not occur. As such, the trial judge determined that the appellants did not have a reasonable expectation of participation in management and control of the corporation. We hold that the trial court’s findings were not clearly erroneous, and we affirm on this point.
Amendment of Corporate Bylaws
At the January 22, 2003 meeting of shareholders and directors, the directors, inter alia, by a vote of Hinkle’s 51 shares for and appellants 49 shares against voted to amend Article IV, Section 1, of the bylaws. As a result, the requirement that a director be a shareholder was deleted. Hinkle was then able to use his majority of votes to install his wife, Janet, in Hufstedler’s place on the board of directors. Taylor and Hufstedler, meanwhile, pooled their votes in order to keep Taylor on the board. For their second point on appeal, Taylor and Hufstedler contend that the trial court erred in finding that Hinkle had the power to amend the corporation’s bylaws. Again, we disagree.
Article 5 of the articles of incorporation provides:
The power to amend or repeal the bylaws or to adopt a new code of bylaws shall be in the shareholders acting by a majority thereof and also in the board of directors acting by a two-thirds (2/3) vote of the directors.
(emphasis added). In their briefs to this court, Taylor and Hufstedler admit that this language could be interpreted as allowing Hinkle to amend the bylaws by a simple majority vote of shares, or, as requiring a vote of a majority of the holders of the shares. However, they argue that if this language is read in conjunction with the other sections of the bylaws and articles of incorporation, then it is clear that the articles can only be amended by a 2/3 majority of the shareholders. Specifically, they contend that Article 13 of the bylaws, alone, controls the amending of the corporate bylaws. Article 13 provides:
These bylaws may be altered or amended by a vote of the majority of the holders, in good standing, of the fully paid-up common stock at any annual or special meeting of the stockholders at which a quomm is present, but notice of the proposed change shall be given in the call of the meeting.
While it is true that, as a general rule, the specific provisions of a contract control the general provisions, see Pate v. Goyne, 212 Ark. 51, 204 S.W.2d 900 (1947), under the facts of this case, the appellants are mistaken.
In its order, the trial court cited Article 3, Section 5 of the bylaws, which states in pertinent part:
Only holders of fully paid-up common stock in good standing shall have or exercise voting rights. Each share of common stock shall have one (1) vote.
In addition to Article 3, Section 5 of the bylaws, the trial court relied upon Ark. Code Ann. § 4-27-1020, which provides in part:
A. A corporation’s board of directors may amend or repeal the corporation’s by-laws.
B. A corporation’s shareholders may amend or repeal the corporation’s bylaws even though the bylaws may also be amended or repealed by its board of directors.
Based upon its reading of both the articles of incorporation and § 4-27-1020, the trial court correctly interpreted article five to allow amendment of the bylaws by either the stockholders or the directors. The question then becomes whether, when amending the bylaws, the board of directors vote per shareholder or per share. The trial court determined the latter. We agree.
Article 3, Section 5 of the bylaws goes on to say:
A quorum shall be constituted when the person owning at least fifty-one percent (51%) of the outstanding and issued shares of stock, as indicated by the stock transfer register of the corporation, are in attendance. This quorum may transact the business of any meeting of the stockholders of this corporation, and a vote of the majority of such stockholders in attendance at such meeting shall be sufficient to pass or reject any properly proposed measure, except for the transaction of business which requires a different quorum or majority either by statute of this state or by the Articles of Incorporation of this corporation.
A quorum is defined by Article 3, Section 5 of the bylaws as the person owning at least 51% of the outstanding shares and issued shares of the stock. Appellants point to the apparent ambiguities between Article 3, Section 5, and Article 13 of the bylaws in asserting that any such ambiguities should be construed against the drafter, Hinkle, under the doctrine of contra proferentem. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). However, the Sturgis case went on to say that if there is an ambiguity, a court will accord considerable weight to the construction the parties themselves give to it, evidenced by subsequent statements, acts, and conduct. Id. It is well-settled that the polestar of contractual construction is to determine and enforce the intent of the parties. Harris v. Stephens Production Co., 310 Ark. 67, 832 S.W.2d 837 (1992). This rule trumps all others, even the doctrine of contra proferentem. Id. In ascertaining this intention, the court should place itself in the same situation as the parties who made the contract in order to view the circumstances as the parties viewed them at the time the contract was made. Asimos v. T.L. Rentals & Sons, Inc., 244 Ark. 1042, 429 S.W.2d 103 (1968); Sternberg v. Snow King Baking Powder Co., Inc., 186 Ark. 1161, 57 S.W.2d 1057 (1933).
In the case at bar, the copious correspondence between the parties’ attorneys indicates that the appellants certainly believed that Hinkle had the authority to unilaterally amend the bylaws. Skip Smith, Taylor and Hufstedler’s lawyer, in his May 13, 1998 letter to Bob Donovan, Hinkle’s lawyer, stated, in pertinent part:
The bylaws already provide that only shareholders may be directors of the corporation. Currently, however, with his majority control, Michael Hinkle could conceivably amend the bylaws to delete this provision, then use his ownership to elect an outside director.
After he acquiesced and allowed Hinkle to assume 51% ownership and control of the corporation, Taylor became angry and refused to help capitalize the corporation, despite an earlier agreement to do so. Furthermore, the long history of discord between the parties indicates that neither Taylor nor Hufstedler truly believed that it would take a 2/3 per capita vote to remove a board member, or carry out other major corporate actions. Accordingly, the appellants could not have reasonably believed their seats on the board of directors were protected by a requirement of per capita voting on amendments to the bylaws.
We have held that documents are to be construed in a manner which gives reasonable and sensible effect to all clauses of the contract, within the entire context of the agreement. Sturgis, supra. Based upon the four corners of the corporate contract and parties’ subsequent conduct regarding said contract, we cannot say that the trial court erred in finding that Hinkle’s actions at the January 23, 2003 shareholders meeting were authorized by the articles of incorporation. In fact, if one were to follow Taylor and Hufstedler’s argument to its logical conclusion, a person holding 98% of the shares in a close corporation could be subjugated to the will of other shareholders who collectively hold two percent, resulting in an absurd result. Accordingly, we affirm the trial court on this point as well.
Removal from the Board of Directors
Finally, appellants argue that the trial court erred in finding that Taylor and Hufstedler grossly abused their discretion, thus necessitating their removal from BEIIFE’s board of directors pursuant to Ark. Code Ann. § 4-27-809 (Repl. 2001). We hold otherwise.
At the 2000 board of directors/shareholders meeting, Taylor and Hufstedler voted to remove Hinkle as president of BEIIFE, and installed Taylor in his place. In addition, they passed a measure requiring the corporation to open a savings account with a Jonesboro bank, and another measure authorizing the issuance of additional corporate stock, which could not be transferred to a non-shareholder. They also passed a measure allowing shareholders to purchase these shares up to their pro-rata ownership percentages, but the shares could only by purchased with cash, not with debt owed by the corporation. Finally, they intended to move the corporation’s checkbook to Jonesboro, and they wanted to have the mail sent there as well, but Hinkle adjourned the meeting before these two measures could be voted upon.
Ark. Code Ann. § 4-27-809 provides, in pertinent part:
(a) The circuit court of the county where a corporation’s principal office (or, if none in this state, its registered office) is located may remove a director of the corporation from office in a proceeding commenced either by the corporation or by its shareholder holding at least ten percent (10%) of the outstanding shares of any class if the court finds that (1) the director engaged in fraudulent or dishonest conduct, or gross abuse of authority or discretion, with respect to the corporation and (2) removal is in the best interest of the corporation.
The issue is whether Taylor’s and Hufstedler’s actions constituted a gross abuse of discretion. It is well established that 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 the common language. When a statute is clear, we will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Cave City Nursing Home, Inc. v. Arkansas Department of Human Services, 351 Ark. 13, 89 S.W.3d 884 (2002).
Taylor and Hufstedler argue that all of their actions at the January 2000 board/shareholders meeting were authorized by corporate documents. The stock purchase agreement, item 19 on Taylor’s checklist for the January 2000 meeting, provided:
Motion that each shareholder buy Five (5) or up to their pro rata basis (as included in Article Tenth of the Articles of Incorporation of the corporation) of shares of common stock ofBEIIFE, Inc. These shares can be purchased for cash and not for any moneys owed to the shareholder by BEIIFE, Inc. Aso, all moneys from this stock sale must be placed in the above savings account at Mid-South Bank injonesboro, AR. This offer expires in thirty (30) days from today.
In support of his argument that this move was authorized, Taylor points to Article 4 of the articles of incorporation, which authorizes the corporation to issue 1,000 shares of stock. At the time the measure had passed, the corporation had only issued 100 shares of stock. Article 5 of the articles of incorporation allows the corporation to select a depository bank, and the appellants argue that they were within their rights to pick a bank in Jonesboro, rather than one close to the franchise. Next, the appellants point to Article 10 of the articles of incorporation, giving each shareholder a first right to purchase shares up to their pro rata percentage of ownership, a right which expires after thirty days.
Hinkle counters by saying that these measures violate the franchise agreement, which cannot be changed without Honda’s prior written approval. The franchise agreement provides, in pertinent part:
B.
Dealer covenants and agrees that this agreement is personal to dealer, to the dealer owner, and to the dealer manager, and American Honda has entered into this agreement based on théir particular qualifications and attributes and a continued ownership or participation dealership operations. The parties agree that the ability of the dealer to perform this agreement itself are both conditioned upon the continued active involvement in the ownership of dealer by the following person(s) in the percentage^) shown:
Name_Title_Percentage of Ownership
Michael Hinkle President 51%
Steven Hufstedler Shareholder 25%
Alan Taylor Shareholder 24%
C.
Dealer represents and American Honda enters into this agreement in reliance on the representation that Michael Hinkle exercises the functions of dealer manager and is in complete charge of the dealership operations with authority to make all decisions on behalf of the dealer with respect to dealership operations. Dealer agrees that there will be no change in dealership manager without prior written approval of American Honda. Such approval shall not be unreasonably withheld.
First, Hinkle asserts that the stock purchase measure would have forced him to have to purchase his pro rata percentage of stock or else he would no longer have maintained his 51% ownership interest. As stated above, per the franchise agreement, Hinkle is to remain 51% owner unless Honda gives prior approval to a change in the ownership percentages. In the case at bar, Honda gave no such prior approval.
Next, Hinkle points to the intended use of the money from the stock purchase agreement to highlight the alleged misconduct. Items 13 through 21 of the Taylor checklist at the board meeting say: that the stock will be sold; that a used inventory, floor planning and retail financing loan will be secured from Mid-South Bank; and that the stock sale proceeds will be placed in that bank. Taylor’s testimony at trial showed that the sale proceeds would be used to establish a deposit relationship with Mid-South Bank. The corporation would then borrow $100,000 from the bank. The loan proceeds would then be put back into the business, and then distributed out to the shareholders in order to give Taylor and Hufstedler some cash out of the corporation. Hinkle contends Taylor’s and Hufstedler’s purpose in voting for the measure was to generate some cash for themselves, i.e. to benefit their own self-interest, rather than the corporation’s best interest.
The trial court found that directors of any corporation owe to the corporation certain duties. First, a director owes the duty to act within the bounds of his authority. Second, a director must exercise a standard of care which an ordinary-prudent director of a similar corporation would exercise under similar circumstances. Finally, a director may not pursue his own interests in a manner which is injurious to the corporation.
While the trial court’s finding that the appellants had moved the mail and the checkbook from Forrest City to Jonesboro was in error, the appellants cannot show that they were prejudiced by that finding. We will not reverse absent a showing of prejudice. Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993). At trial, although he conceded that he could not own the Forrest City dealership, Taylor admitted that if he could wrest control from Hinkle, that would be a good thing for him. He also testified that he intended to take away all record-keeping or accounting-type functions, such as sales, expenses, profits, and that kind of thing, from Hinkle to his dealership in Jonesboro. Taylor admitted that he intended to take the checkbook to Jonesboro, and that he intended to shut down the mail and have it sent to Jonesboro as well. Taylor said that he did not think a person needed a checkbook to run a six or seven million dollar business. The appellants claim that their subjective desire to do several other things that would obviously hurt the corporation, such as moving the books, mail, and checkbook two counties away and keeping it from the person who was supposed to be running the corporation and the day-to-day operations, does not rise to the level of a gross abuse of discretion. We disagree. The appellants’ intent to do those acts, coupled with the actions that appellants did, in fact, carry out, more than constitute a gross abuse of discretion.
In its letter opinion, dated August 4, 2003, the trial court expressly ruled that:
Here, the Defendant,Taylor was quite candid in admitting that his actions were taken as a result of Plaintiff Hinkle’s insistence of having 51% of the corporation. The actions of the Defendants, described above, were retaliatory in nature. After acquisition of the Honda agreement the Defendants then became obstructive instead of supportive of the corporation. The court finds that these directors’ actions were contrary to the best interest of the corporation and that the path the Defendants decided to take jeopardized the corporation.
The court finds that the actions of these Defendants do constitute a gross abuse of their discretion and authority. Pursuant to A.C.A. 4-27-807 these Defendants are removed from the Board of Directors for a period of two (2) years.
Taylor and Hufstedler’s blatant violations of the franchise agreement, coupled with their clear intentions to commit other actions designed to wrest control away from Hinkle, are clearly injurious to the corporation, and such actions do, indeed, constitute a gross abuse of discretion. Based on the evidence presented in this particular case, we cannot say that the trial court abused its discretion in removing the appellants from the board of directors.
Affirmed.
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Per Curiam.
Appellant, Billy Dale Green, by and through his attorney, has filed a motion for a rule on the clerk. His attorney, Steven M. Harper, states in his motion that the record was tendered late due to a mistake on his part. We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
Therefore, the motion is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Jim Gunter, Justice.
Appellant, CarlJ. Freeman, appeals the order of the Columbia County Circuit Court appointing appellees, Bruce and Beth Rushton, as guardians of the person and estate of their grandson, Alec. Appellant argues only one point for reversal; the circuit court erred as a matter of law by granting custody to the child’s maternal grandparents instead of to him, the fit biological father. We affirm.
Alec was born on July 20, 1999. His mother, Jill Rushton, was never married to appellant. Jill and Alec lived with Jill’s parents, the appellees, after Alec’s birth. As a result of Jill’s request for Medicaid benefits, the State filed a paternity action against appellant in 2000. A judgment of paternity declaring appellant to be the child’s father was entered on February 8, 2001. Appellant was ordered to pay child support and was also awarded visitation. Although he did not take advantage of extended summer visits granted to him by the court’s visitation schedule, appellant otherwise has continued to pay support for and spend time with Alec as set forth in that order.
On February 23, 2003, Jill Rushton died from injuries she received in a car accident. The present guardianship case arose from that event. While Alec was visiting with appellant when the accident occurred, his home was still with the appellees. Appellant has never had custody of Alec. Four days after Jill’s death, appellees filed a petition for appointment of guardianship over Alec following the guidelines set forth in Ark. Code Ann. § 28-65-205 (Repl. 2004). Appellant filed an answer and later a motion to dismiss, requesting the court to dismiss the petition and reunite him with his child. While appellant did not file a “petition for guardianship” as such, it appears clear from the record that he sought to obtain Alec by virtue of the natural-parent preference found both in Ark. Code Ann. § 28-65-204(a) and in our long-established caselaw. The circuit court recognized this in its opinion, stating that despite appellant’s failure to file such a petition, it was nevertheless considering him to fill that role.
The circuit court granted appellees’ petition establishing a guardianship over Alec, setting forth the following findings of fact: (1) Alec has lived with appellees since his birth; (2) appellees have been responsible for seeing to and providing for Alec’s educational needs; (3) appellees have been responsible for Alec’s medical needs; (4) appellees have been responsible for seeing that Alec receives religious instruction and attends church on a regular basis; (5) appellant is a fit person to have custody; however, he has never had any extended time with Alec; (6) at the time of the hearing, it had been only three months since Alec’s mother’s death; and (7) Alec is a minor, a guardianship is desirable to protect his needs, and appellees are qualified and suitable to act as his guardians. The court concluded that the key factor in determining guardianship is the best interest of the child and found that it was in Alec’s best interest to continue to live and be raised in the home of his grandparents.
While the circuit court noted that Ark. Code Ann. § 28-65-204(a) grants preferential status to the parents of a child, it stated that this preference is only one factor the court must consider in determining who will be the most suitable guardian for the child. Relying on our decision in Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000), the opinion stated further that any inclination to appoint a parent or relative must be subservient to the principle that the child’s best interest is of paramount consideration. We agree.
We review probate proceedings de novo, but we will not reverse the decision of the court unless it is clearly erroneous. Blunt, supra; Amant v. Callahan, 341 Ark. 857, 20 S.W.3d 896 (2000). When reviewing probate proceedings, we give due regard to the opportunity and superior position of the circuit judge to determine the credibility of the witnesses. Id.
Appellant argues that the circuit court’s decision should be reversed, not because its findings of fact were clearly erroneous, but because the court erred as a matter of law in not following the natural-parent preference after finding that appellant was a fit parent. He argues that once a determination has been made in a guardianship proceeding that a parent is “fit,” as a matter of law, the circuit court must appoint that fit parent as guardian over his or her child. While we will not set aside a trial court’s findings of fact unless they are clearly erroneous, we do not afford the same deference to a trial court’s conclusions of law. Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004).
Before appointing a guardian, the circuit court must be satisfied that (1) the person from whom guardianship is sought is a minor or otherwise incapacitated; (2) a guardianship is desirable to protect the needs of that person; and (3) the person to be appointed guardian is qualified and suitable to act as such. Ark. Code Ann. § 28-65-210 (Repl. 2004). The natural-parent preference referred to by appellant derives both from our long-established caselaw in custody matters and from Ark. Code Ann. § 28-65-204(a). While the two preferences are similar, the preference at issue here is the statutory preference, Ark. Code Ann. § 28-65-204(a).
This case began when appellees filed a petition for guardianship. While appellant did not request guardianship in either his answer or his motion to dismiss, but requested merely to be “reunited” with his child, the circuit court indicated that it was nevertheless considering him to fill the role of guardian. As this is not an initial-custody or modification-of-custody case, but a guardianship case, the parties are governed by the preference set forth in Ark. Code Ann. § 28-65-204(a). Subsection (a) states that “[t]he parents of an unmarried minor, or either of them, if qualified and, in the opinion of the court, suitable, shall be preferred over all others for appointment as guardian of the person.” Id. Interpretation of a statute is a conclusion of law which we review de novo. Hartford Fire Ins. Co., supra.
While this statute, or its predecessor, has been the law since 1949, we have had very few opportunities to interpret it in the context of a parent versus a third party. The most recent case was Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000), relied upon by the circuit court in this case. The question in Blunt was whether guardianship of a child whose mother was killed in an amusement-park accident should lie with the maternal grandparents or the alleged biological father. While the parents were not married, and no paternity action had ever been filed, both the probate court and this court treated the appellant as the natural father for purposes of the case. The probate court appointed the maternal grandparents as permanent guardians, finding that appellant was “not suitable” to be the child’s guardian. In affirming, we said that
[preferential status may be given to the natural parents of the child under Ark. Code Ann. § 28-65-204 (Supp. 1999). This preference, however, is but one factor that the probate court must consider in determining who will be the most suitable guardian for the child. See Marsh, 15 Ark. App. 272, 692 S.W.2d 270. Indeed, any inclination to appoint a parent or relative must be subservient to the principle that the child’s best interest is of paramount consideration. See Bennett, 281 Ark. 414, 664 S.W.2d 476.
Blunt, supra.
Since we upheld the probate court’s finding that the natural father in Blunt was not suitable, we did not go further in interpreting the statutory language. In this case, appellant argues that because the circuit court found he was “fit,” it must, consequently, appoint him as his son’s guardian. We disagree.
It is in the trial court’s discretion to make a determination whether a parent is “qualified” and “suitable.” See Ark. Code Ann. § 28-65-204(a). Assuming such a determination is made, however, the analysis does not end there. This statute does not mandate appointment. It merely states that such a parent “shall be preferred over all others for appointment as guardian.” Id. We must assume that had the General Assembly intended to require appointment, it would have stated that a parent who is qualified and suitable shall be appointed as guardian. This statute does not do that. This statute merely grants a preference and does not negate the trial judge’s discretion to weigh all of the facts before him and to determine the credibility of the witnesses in making his determination of guardianship.
While this statute grants a preference to a parent, “qualified,” “suitable,” and “preferred” also incorporate our long-stated principle that the child’s best interest is of paramount consideration, both in custody and in guardianship situations. Blunt, supra; Grosser v. Henson, 357 Ark. 635, 187 S.W.3d 848 (2004) (Holding that while there is a natural-parent preference in custody cases, the preference is not absolute. The controlling factor is the best interests of the child. “Determining whether the child is to be better off with one party versus another is precisely what the court should decide. The natural-parent preference and the fitness of that parent are not the absolute determinants in custody-modification matters, as our case law makes clear.”); Henry v. Janes, 222 Ark. 89, 257 S.W.2d 285 (1953) (court determined in considering the best interest of the child, the natural-parent preference was overcome and changed custody from the natural father to the great-aunt and great-uncle).
Appellant cites Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988), for his argument that the natural-parent preference must prevail unless it is established that the natural parent is unfit. First, that case is a modification-of-custody case, not a guardianship case, governed by the case-law preference, found in not the statutory preference found in Ark. Code Ann. § 28-65-204(a). Furthermore, in Stamps, custody of the child had already been awarded to the natural mother, and the stepfather was attempting to have the custody changed to him. The trial court found that the mother was a fit and proper person for custody, but nevertheless changed custody of the child to the stepfather. We reversed. There had been no finding of a change in circumstances warranting a change in custody. Finally, in Stamps, granting custody would deprive the natural parent of custody, something she already had. In this case, appellant has never had custody. We also reiterated in Stamps that the preference is based on the child’s best interests.
In this case, the circuit court carefully considered the evidence and found that in spite of the statutory preference, it was in Alec’s best interest to remain with his maternal grandparents. After a de novo review of the record, we cannot say that the circuit court’s decision was clearly erroneous. We affirm.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING DELIVERED MARCH 10,2005
Per Curiam.
Rehearing is denied.
This appeal was certified to us from the court of appeals pursuant to Ark. R. Sup. Ct. 1—2(b) (5) and (6), as it involves significant issues needing clarification or development of the law.
While the circuit court made a specific finding that the appellees were qualified and suitable, it made no such finding about appellant.
We note also that in Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002), we recognized that a parent’s rights do not spring from a “bare biological connection” to the child, but must be born of a relationship to a child demonstrated over time. Michael H. v. Gerald D., 491 U.S. 110 (1989). | [
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ROBIN F. WYNNE, Associate Justice
hRandeep S. Mann appeals following entry of an order by the Crittenden County Circuit Court granting partial summary judgment in favor of Dr, Trent Pierce and Melissa Pierce as to liability for tort claims the Pierces brought against Mann. A. jury subsequently determined that the Pierces had sustained damages in the amount of $122,600,000, and the circuit court entered a judgment in that amount. Mann argues that the circuit court erred in applying the doctrine of offensive collateral estoppel in granting partial summary judgment on liability in favor of the Pierces. Our court of appeals certified this case to us. Thus, our jurisdiction lies pursuant to Rule 1—2(d) of the Rules of the Arkansas Supreme Court and Court of Appeals. We'affirm.
On the morning of February 4, 2009, Dr. Trent Pierce, who was then the chairman of the Arkansas State Medical Board (Board), was scheduled to travel from his home in West Memphis to Little Rock to attend a Board meeting. Before getting into his vehicle, Dr. Pierce noticed a spare tire leaning against it. When he moved the tire, an explosive device |9,(believed to be a grenade) hidden inside the tire exploded, seriously injuring Dr. Pierce. An investigation by the federal Bureau of Alcohol Tobacco and Firearms (ATF) eventually focused on Mann, a physician who had a long disciplinary history with the Board.-Mann revealed to ATF investigators that he owned a sizable collection of weapons, at least one of which was observed to be equipped with a grenade launcher. After the bombing, city workers discovered nine ty-eight grenades buried approximately 875 feet from Mann’s residence.
Mann was indicted and tried on several criminal charges in the United States District Court for the Eastern District of Arkansas in connection with the bombing and the various weapons discovered in or near his home. The government’s theory at trial was that Mann acted as part of a conspiracy of individuals to target Dr. Pierce due to his activities as chairman of the Board. Among the charges was one count of using and conspiring to use a weapon of mass destruction against a person or property within the United States and one count of aiding and abetting in the damaging or destruction of a vehicle used in an activity affecting interstate commerce by means of an explosive. Following a five-week trial that began in July 2010, Mann was convicted on those two counts as well as other charges. He was sentenced to life imprisonment in 2011. Mann was also ordered to pay restitution in the amount of $1,015,281.24.
On January 27, 2010, the Pierces filed a complaint that named Mann and three John Does as defendants. Count I of the complaint alleges that Mann committed the torts of assault and battery against Dr. Pierce. Count II of the complaint alleges civil conspiracy, specifically that Mann and several unknown individuals entered into an agreement for the | ^unlawful purpose of causing serious physical injury or death to Dr. Pierce. Count III alleges entitlement to punitive damages. In the complaint, the Pierces allege entitlement to compensatory damages for injuries to Dr. Pierce and loss of consortium by Melissa Pierce.
On December 26, 2012, the Pierces filed a motion for summary judgment as to liability" for compensatory and punitive damages. In the motion, the Pierces argue that Mann’s convictions should bar him from relitigating his liability for the injuries sustained by Dr. Pierce in the explosion. Mann opposed the motion for summary judgment, contending that the offensive use of collateral estoppel sought by the Pierces is not allowed in Arkansas except from a conviction for murder, that the general principles underlying offensive collateral estoppel do not support expanding its use in this case, that, the prior counts of conviction do not preclude any issue in this case, and that the use of offensive collateral estoppel is premature because Mann’s convictions are on appeal.
Following a hearing on the motion for summary judgment, the circuit court entered an order on December 19, 2013, in which it granted the Pierces’ motion for partial summary judgment as to liability. The circuit court determined that offensive collateral estoppel could be applied as a result of Mann’s criminal convictions if the requirements for the application of the doctrine as set forth in case law were present. The circuit court then determined that the requirements were present and granted the motion for partial summary judgment. A jury trial was held on the issue of damages. The jury awarded Dr. Pierce $12,500,000 in compensatory damages and $100,000,000 in punitive damages. The jury also awarded Melissa Pierce $5,000,000 in compensatory damages for loss of consortium and $5,000,000 in punitive damages. The total judgment awarded by the jury was $122,500,000. On May |423, 2015, the circuit court entered a judgment reflecting the jury’s award of damages. This appeal followed.
We must first address the notice of appeal. The notice of appeal shall designate the judgment, decree, order or part thereof appealed from. Ark. R. App. P.— Civ. 3(e) (2015). This court has noted that the procedural steps outlined in Rule 3(e) require only substantial compliance, provided that the appellee has not been preju diced by the failure to comply strictly with the rule. See Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996). Here, the notice of appeal is technically deficient because it does not designate the final judgment that awarded monetary damages to appellees, which is the only final, appeal-able order in the record, as the order appealed from. Although the notice of appeal states that Mann is appealing from the order granting partial summary judgment, which was entered over a year before the notice of appeal was filed, and does not reference the final judgment, the summary-judgment order was not a final, appealable order, and no appeal could be taken from that order until the final judgment was entered by the circuit court. The notice of appeal was filed within thirty days of entry of the final judgment. We hold that the notice of appeal substantially complies with Rule 3(e), as appellant appealed from the summary judgment order at the first available opportunity, filed a notice that was timely as to the final judgment, and there was no prejudice to appel-lees due to the failure of the notice to reference the final judgment.
Mann first argues that the trial court erred by improperly expanding the Zinger exception to the offensive-collateral-estoppel rule. We disagree. This court has approved the use of offensive collateral estoppel from a prior civil judgment. Johnson v. Union Pac. RR., 352 Ark. 534, 104 S.W.3d 745 (2003). In Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999), this court approved the application of offensive collateral estoppel to a conviction for murder. To date, offensive collateral estoppel has not been applied to a conviction for any other kind of criminal offense. Our reading of the opinion in Zinger reveals that there is no reason why it cannot be so applied. In Zinger, this court spent a great deal of time discussing how the view of the use of offensive collateral estoppel has changed in the majority of jurisdictions. In this discussion, we cited a number of cases from other jurisdictions in which convictions for offenses other than murder were given preclusive effect in later civil proceedings. In re Marquardt, 161 Ariz. 206, 778 P.2d 241 (1989) (possession of marijuana); Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal.2d 601, 25 Cal.Rptr. 559, 375 P.2d 439 (1962) (theft and filing a fraudulent insurance claim); Warmouth v. Delaware State Bd. of Exam’rs in Optometry, 514 A.2d 1119 (Del. Super. Ct.1985) (sexual assault); Aetna Cas. & Surety Co. v. Niziolek, 395 Mass. 737, 481 N.E.2d 1356 (1985) (burning property to collect insurance proceeds); Jordan v. McKenna, 573 So.2d 1371 (Miss. 1990) (rape); Aubert v. Aubert, 129 N.H. 422, 529 A.2d 909 (1987) (attempted murder). The opinion contains no indication that the doctrine was applied due to the existence of some special circumstance pertaining to a conviction for murder. Instead, the opinion in Zinger reflects the acknowledgment of a national trend, and there is no reason for the court to stand against that trend. We hold that offensive collateral estoppel may be applied to convictions other than ones for murder if the doctrine would otherwise be applicable under our case law.
Having determined that the doctrine may apply to Mann’s convictions, we must now determine whether it should apply to his convictions. The doctrine of collateral estoppel,J^or issue preclusion, bars the relitigation of issues of law or fact actually litigated by the parties in the first suit, provided that the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question and that issue was essential to the judgment. Powell v. Lane, 375 Ark. 178, 186, 289 S.W.3d 440, 445 (2008). The doctrine is applicable to preclude relit- igation of issues in state court that were previously decided in federal court. Palmer v. Ark. Council on Econ. Educ., 344 Ark. 461, 40 S.W.3d 784 (2001). Zinger recites the four requirements for the application of collateral estoppel: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have been determined by a final and valid judgment; and (4) the issue must have been essential to the judgment. 336 Ark. at 430, 985 S.W.2d at 741. In Johnson v. Union Pacific Railroad, supra, this court stated that application of the doctrine might be unfair (1) where the defendant is sued for small or nominal damages and may not have had incentive to defend vigorously; (2) where the judgment relied upon for estoppel is itself inconsistent with one or more previous judgments in favor of the defendant; and (3) where the second action affords the defendant procedural opportunities unavailable in the first action that could cause a different result. 352 Ark. at 545-46, 104 S.W.3d at 751 (citing Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)).
Mann argues that collateral estop-pel is not applicable in this case because the criminal trial did not determine the same facts the Pierces must prove in the civil trial. Among the convictions at Mann’s criminal trial was one for use of weapons of mass destruction. A person commits that offense if the person, without lawful authority uses, threatens, attempts or conspires to use a weapon of mass destruction against any person or property within the 17United States and such property is used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce. 18 U.S.C.A. § 2332a. In order to prove the alleged torts of assault and battery, the Pierces would have to prove that Mann intentionally placed Dr. Pierce in fear of immediate physical harm and (2) that he acted with the intent to cause harmful contact to Dr. Pierce and did so. AMI Civ. 418 and 419 (2015). .
Mann is correct to the extent that he contends that the elements of proof for his criminal charges and the elements of proof for the torts asserted by the Pierces do not line up completely. That means there exists the possibility of a set of facts whereby one could be found guilty of the criminal offenses for which Mann was convicted without the necessary elements for the torts of assault and battery having been decided. This case, however, does not present that set of facts. Here, in order to convict Mann, the federal jury was required to believe that he participated in a scheme whereby an explosive was secreted in a spare tire that was placed against Dr. Pierce’s personal vehicle in a manner such that, when it was moved, it would explode. This court has held that one is presumed to intend the natural and probable consequences of his actions. See Metcalf v. Jelks, 177 Ark. 1023, 8 S.W.2d 462 (1928). The natural and probable consequences of the actions that the jury was required to believe had either been taken or facilitated by Mann were that Dr. Pierce would be either seriously injured or killed. These facts prove the necessary elements of the tort Isdaims made by the Pierces, and there were no other facts adduced at the criminal trial that would have supported Mann’s convictions for the relevant criminal charges.
Mann also asserts that the Pierces cannot recover from him for civil conspiracy because he was convicted of involvement in a conspiracy, and the Pierces are not seeking judgment from “the actual tortfeasors.” However, his argument on this point consists solely of that statement and citation to a Comment to Arkansas Model Jury Instruction—Civil 714 which cites two cases from other jurisdictions that support Mann’s position and then states that Arkansas has not addressed the issue. Mann has failed to develop a convincing argument on this issue. It is axiomatic that this court will not consider arguments that are unsupported by convincing argument or sufficient citation to legal authority. Ganey v. Kawasaki Motors Corp., U.S.A., 366 Ark. 238, 244, 234 S.W.3d 838, 842 (2006). We decline to consider this argument.
Mann next argues that it would be unfair to apply offensive collateral estoppel in this ease because the civil action would afford him with procedural safeguards that were unavailable in the first trial. Specifically, he contends' that there would be available at a civil trial discovery in the form of deposition testimony that was unavailable at the criminal trial. There are multiple problems with this argument. First, Mann makes no assertion that the preparation for his criminal trial was incomplete. Also, given that the criminal trial lasted five weeks, it cannot be said that he lacked a full and fair opportunity to litigate his ^responsibility for the actions that led to Dr. Pierce’s injuries with a higher burden of proof than he would face in a civil trial. As the Illinois Supreme Court observed in American Family Mutual Insurance Company v. Savickas, 193 Ill.2d 378, 260 Ill.Dec. 682, 739 N.E.2d 445 (2000), the differences between civil and criminal litigation mitigate in favor of affording preclusive effect to criminal convictions in light of their reliability. Second, Mann gives this court no indication of what possible evidence would be available through depositions not taken in preparation for his criminal trial that would change the result. Mann also complains that there were charges in his criminal trial that were improperly joined. He successfully argued the improper joinder issue to the Eighth Circuit; however, that court found that he was not prejudiced by the improper joinder. See United States v. Mann, 701 F.3d 274, 291 (8th Cir. 2012). We do not see how the issue of improper joinder would prejudice him in the civil trial when it did not prejudice him in the criminal trial. Mann’s arguments regarding procedural safeguards are without merit.
Mann’s final argument is that application of offensive collateral estoppel is premature because the underlying case remains subject to reversal. We see no merit to this argument. As the Pierces note in their responsive brief, Arkansas follows the majority rule that a judgment is final for purposes of issue preclusion despite a pending appeal for a review of the judgment, unless the appeal actually consists of a trial de novo. John Cheeseman Trucking, Inc. v. Pinson, 313 Ark. 632, 855 S.W.2d 941 (1993). Mann was convicted and he appealed the substantive' nature of those convictions to the Eighth Circuit,' which affirmed. He is apparently seeking post-conviction relief, in which he necessarily cannot attack the factual |inbasis underpinning the verdict rendered by the jury in the criminal trial. As such, the jury’s verdict in the criminal matter should be given preclusive effect.
The order of the Crittenden County Circuit Court granting partial summary judgment in favor of the Pierces on the issue of liability and the monetary judgment entered against Mann are hereby affirmed.
Prior to oral argument in this case, ap-pellees asked this court to take judicial notice of the decision by the United States District Court for the Eastern District of Arkansas in which Mann’s postconviction claim for ineffective assistance of counsel was denied. In his response, Mann filed a supplemental motion to take judicial notice in which he requested that this court take judicial notice of his postconviction proceedings in federal court. The motions to take judicial notice are denied.
Affirmed; motions denied.
Goodson, J., concurs.
Wood, J., concurs in part and dissents in part.
Hart, J., dissents.
. We note that Mann’s argument does not address Melissa Pierce’s claim for loss of consortium separately from Dr. Pierce’s claims for assault and battery, nor does his argument address the torts of assault and battery separately. | [
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Jim Hannah, Chief Justice.
The First National Bank of DeWitt (FNB) appeals a judgment on a jury verdict and alleges that the circuit court erred in submitting an equitable issue for decision by the jury, in denying motions for judgment notwithstanding the verdict and new trial, and in failing to modify the jury verdict to conform to the jury’s intent. We hold that the circuit court erred in submitting to the jury the equitable issues contained in Count I of FNB’s Amended Complaint. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(1) and (b)(1).
Facts
This case involves money lent by FNB to Claude Cruthis, Catherine Cruthis, Bill Cruthis, Terry Cruthis, individually, and as partners of Cruthis Brothers, a partnership (Cruthis). The loans were used to fund farming operations. FNB lent Cruthis a total of $148,500 through six loans extended between 1993 and 1996. The loans were variously secured by personal and real property. In 1996, when Cruthis’s wheat and oat crop were planted and growing, Cruthis told the FNB that due to a lack of funds, operations would cease. Cruthis sold some but not all property in which FNB held a security interest and forwarded the proceeds to FNB. This did not satisfy the total loan obligation. FNB decided to protect its exposure on the outstanding loans by finishing Cruthis’s wheat and oat crops, which required an investment of more than $14,000. Wheat prices were rising during this time, and Cruthis approached FNB and asked that a portion of the future crop be committed to Bunge Corporation to obtain the higher price then available. FNB obligated itself to Bunge to acquire a higher price than might exist when the crop was actually harvested. However, Cruthis had previously obligated some portion of the crop to Riceland Seed Company d.b.a. Stratton Seed Company (Stratton). Cruthis alleges that only a small portion of the crop was promised to Stratton, and that there was more than sufficient grain to meet both the obligation to Stratton, as well as make an offer to Bunge. When it came time to harvest, Cruthis stopped FNB from harvesting the grain and delivering it to Bunge, threatened prosecution for criminal trespass, rented equipment, harvested the grain, and delivered it to Stratton. Stratton sold the grain and received funds in the amount of $50,618; Stratton issued checks for the $50,618 and delivered the checks to FNB, however, the checks were not cashed, were never negotiated and Stratton retains the $50,618 today. In 1998, Cruthis brought an action in Monroe County against FNB in conversion, interference with contract, and breach of fiduciary duty. The Monroe County case resulted in a dismissal of Cruthis’s complaint because it should have been brought as a compulsory counterclaim in the case before us, an already existing action filed in chancery court in Arkansas County on May 30, 1997. See First National Bank of Dewitt v. Cruthis, 352 Ark. 292, 100 S.W.3d 703 (2003). In the present action, by way of its Amended Complaint filed August 8, 2003, FNB sought restitution including an equitable lien, damages for breach of contract, damages for conversion, and damages for breach of warranty.
After dismissal of the action in the appeal noted above, Cruthis filed a counterclaim in the present action asserting causes of action for conversion, fraud and misrepresentation, tortious interference with contract, undue control and breach of fiduciary capacity. A jury demand was included in the counterclaim. Cruthis filed a motion to dismiss FNB’s action in chancery for failure to assert that there was no adequate remedy at law. By the time the court heard the matter, Amendment 80 had taken effect, and the chancery court had become a circuit court. The circuit court stated that there was merit to the claim that FNB failed to assert a lack of an adequate remedy at law and concluded that there was an adequate remedy at law. However, rather than dismiss the case, the circuit court stated that the case would be decided at law rather than at equity.
Following a jury verdict, FNB filed a motion for judgment not withstanding the verdict, or in the alternative, for a new trial. FNB alleged that there was a lack of substantial evidence supporting the jury verdict. More specifically, FNB argued that there was a lack of substantial evidence supporting the jury’s verdict that Stratton was not unjustly enriched. Alternatively, FNB argued for a new trial based on an error in the jury’s assessment “due to an erroneous conclusion as to the effect of their verdict form.”
Amendment 80
This case involves a question of whether the circuit court erred in trying the case as one at law rather than at equity. This implicates Amendment 80 to the Arkansas Constitution and its effect on jurisdiction formerly residing in circuit and chancery courts. Amendment 80 is now part of our constitution. In interpreting the constitution on appeal, our task is to read the law as it is written and interpret it in accordance with established principles of constitutional construction. Smith v. Sidney Moncrief Pontiac, Buick, GMC, Co., 353 Ark. 701, 120 S.W.3d 525 (2003); Brewer v. Fergus, 348 Ark. 577, 79 S.W.3d 831 (2002). It is this court’s responsibility to decide what a constitutional provision means, and we will review a lower court’s construction de novo. Id. We are not bound by the decision of the circuit court; 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. Language of a constitutional provision that is plain and unambiguous must be given its obvious and common meaning. Smith, supra; Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000); Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998). Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Id.
As we previously stated:
The passage of Amendment 80 on November 7, 2000 was a watershed event in the history of the Judicial Department of this state. Jurisdictional lines that previously forced cases to be divided artificially and litigated separately in different courts have been eliminated. This fundamental change naturally brings with it a whole host of issues, both theoretical and practical, concerning the form and structure of our court system.
In Re Implem. of Amend. 80, 345 Ark. Appx. 664, 47 S.W.3d 262 (2001). Amendment 80 to the Arkansas Constitution merged the chancery and circuit courts. Summit Mall Co. v. Lemond, 355 Ark. 190, 211, 132 S.W.3d 725 (2003); United Food & Com. Workers, Int. Union v. Wal-Mart, 353 Ark. 902, 120 S.W.3d 89 (2003). Section 6(A) of Amendment 80 to the Arkansas Constitution provides “Circuit Courts are established as the trial courts of original jurisdiction of all justiciable matters not otherwise assigned pursuant to this Constitution.” As a consequence of Amendment 80, courts that were formerly chancery and circuit courts are now referred to as circuit courts. Id. Because Amendment 80 states that circuit courts assume the jurisdiction of chancery courts, circuit courts simply have added to their already existing jurisdiction as a court of law the equitable jurisdiction which chancery courts held prior to adoption of the Amendment. Ark. Prof'l Bail Bondsman Licensing Bd. v. Frawley, 350 Ark. 444, 453, 88 S.W.3d 418 (2002). In other words, no new or expanded jurisdiction beyond that formerly existing in the chancery and circuit courts was created through Amendment 80. Rather, circuit court jurisdiction now includes all matters previously cognizable by circuit, chancery, probate, and juvenile court. See Amendment 80, § 19(B)(1); Administrative Order No. 14, §§ 1(a) and (b), 344 Ark. Appx. 747- 48 (2001). See also Moore v. Sipes, 85 Ark. App. 15, 106 S.W.3d 903 (2004).
Prior to adoption of Amendment 80, a choice had to be made by a plaintiff of whether it was best to file suit in chancery or circuit court. The clean-up doctrine was used to allow a chancery court to decide law issues because under that longstanding rule, once a chancery court acquired jurisdiction for one purpose, it could decide all other issues. Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371 (1996). The doctrine reached the point in recent years that unless the chancery court had no tenable nexus to the claim, this court would consider the matter of whether the claim should have been heard in chancery to be one of propriety rather then one of subject-matter jurisdiction. Douhitt, supra; Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). Further, it was possible to sever claims at law to be tried in circuit court. Tyson v. Roberts, 287 Ark. 409, 700 S.W.2d 50 (1985); see also Spitzer v. Barnhill, 237 Ark. 525, 374 S.W.2d 811 (1964).
There is no longer a need to elect in which court to file a lawsuit. See Clark v. Farmers Exchange, Inc., 347 Ark. 81, 89, 61 S.W.3d 140 (2001). However, as already discussed, Amendment 80 did not alter the jurisdiction of law and equity. It only consolidated jurisdiction in the circuit courts. Therefore, matters that could be submitted to a jury for decision and the matters that must be decided by the court remain unaltered.
The circuit court submitted this case to the jury, although FNB sought restitution and an equitable lien in Count I. FNB did not request a jury and argues on appeal that submission of restitution to the jury was error. Cruthis requested a jury in their counterclaim. Cruthis argues that it was not error to submit the case to the jury. The right to a jury trial set out in the Arkansas Constitution in Art. 2, Sec. 7 was unaffected by Amendment 80. All five Arkansas Constitutions have provided that the right to a jury trial “shall remain inviolate.” The 1868 and 1874 constitutions include the additional language that the right to a jury trial extends to “all cases at law.” This court has clearly stated that Art. 2, Sec. 7 does not assure the right to a jury trial in all possible instances, but rather in those cases where the right to a jury trial existed “when our constitution was framed.” Jones v. Reed, 267 Ark. 237, 248, 590 S.W.2d 6 (1979). See also McClanahan v. Gibson, 296 Ark. 304, 756 S.W.2d 889 (1988); Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987); Colclasure v. Kansas City Life Ins. Co., 290 Ark. 585, 720 S.W.2d 916 (1986); St. Louis I.M. & S. Ry. Co. v. Hays, 128 Ark. 471, 195 S.W. 28 (1917); Wheat v. Smith, 50 Ark. 266, 7 S.W. 161 (1888); Neel v. State, 9 Ark. 259 (1845). Further, the right to a jury trial “does not apply to new rights created by the legislature since the adoption of the constitution.” Henry v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987) (rev’d on other grounds by Act 293 of 1989). See also Lockley v. Easley, 302 Ark. 13, 786 S.W.2d 573 (1990). As this court stated in State v. Johnson, 26 Ark. 281, 289 (1870), “It has truly been said that a ‘Constitution is not the beginning of government,’ and that it is adopted with a knowledge that it is, and was made in harmony and consonance with the condition of the things existing at the time of its adoption.”
Because Amendment 80 left the right to a jury trial unaltered, the question presented is whether prior to adoption of Amendment 80, Count I could be properly submitted to a jury for decision. FNB argues that because restitution was sought in Count I, it was an equitable action that had to be tried to the court.
Restitution is founded upon the doctrine of unjust enrichment. Coley v. Green, 232 Ark. 289, 335 S.W.2d 720 (1960). Unjust enrichment is an equitable doctrine. Brookfield v. Rock Island Improvement Co., 205 Ark. 573, 169 S.W.2d 662 (1943). However, even though the doctrine is equitable, the issue of unjust enrichment has been submitted to the jury in circuit court where the assertion is wrongful retention of money because the cause of action “is one corresponding with the common law action of assumpsit for money had and received.” Arkansas Natl Bank v. Martin, 110 Ark. 578, 584, 163 S.W. 795 (1914). See also Hutchinson v. Phillips, 11 Ark. 270 (1850). “The action for assumpsit is one for the recovery of damages for the nonperformance of a simple contract. Such a contract may be express or implied, and the action is based on the breach thereof, and is therefore ex contractu.” Bertig v. Norman, 101 Ark. 75, 80, 141 S.W. 201 (1911). “In both the civil and common law, rights and causes of action are divided into two classes — those arising ex contractu (from a contract), and those arising ex delicto (from a delict or tort).” Helton v. Sisters of Mercy of St. Joseph’s Hospital, 234 Ark. 76, 85, 351 S.W.2d 129 (1961); quoting Black’s Law Dictionary 660 4th ed. (1951) (citing 3 Blackstone’s Commentary 117). The use of courts of law in such actions is illustrated by a discussion in Import Motors v. Luker, 268 Ark. 1045, 599 S.W.2d 398 (1980), where this court stated:
The right to recover the $5,000.00 is on the basis of the common law action of assumpsit. Assumpsit has its origin in relief anciently afforded by chancery in respect to an implied obligation arising by operation of law, and is grounded in equitable principle. In Hartford Accident & Indemnity Co. v. Benevento, 133 N.J.L. 315, 44 A. 2d 97 (1945), the court said the action of assumpsit has been extended:
To almost every case where an obligation arises from natural reasons, and the just construction of law, that is quasi ex contractu ... It lies only for money, which ex aequo et bono, the defendant ought to refund. . . This action is greatly favored by the courts. It is less restricted and fettered by technical rules and formalities than any other form of action. ... It approaches nearer to a bill in equity than any other common law action.
This concept is supported by United States v. Jefferson Elec. Mfg. Co., 291 U.S. 386, 54 S.Ct. 443; Holcomb v. Kentucky Union Co., 262 Ky. 192, 90 S.W.2d 25; Beauregard v. Orleans Trust Co., 108 Vt. 42, 182 A. 182; and Allen v. Mendelsohn & Co., 207 Ala. 537, 93 So. 416. In the latter case the court said:
Assumpsit is an action of an equitable character, liberal in form, and greatly favored by the court as a remedy ... no agreement is necessary; assumpsit will lie wherever the circumstances are such that the law, ex debito justitiae will imply a promise.
While an action of assumpsit, although based on equitable principles is an action at law, the law is well settled that when the chancery court has jurisdiction of a case for one purpose, it will retain jurisdiction to settle the rights of the parties arising out of the subject matter, Austin v. Dermott Canning Co., 182 Ark. 1128, 34 S.W.2d 773 (1931); Spears v. Rich, 241 Ark. 15, 405 S.W.2d 929 (1966). Unquestionably, this action for injunctive and other relief was one cognizable in equity, and therefore, the court has jurisdiction to do complete justice as between the parties.
Import Motors, 268 Ark. 1052-53. In Fite v. Fite, 233 Ark. 469, 345 S.W.2d 362 (1961), this court stated:
The decisive questions for decision are whether the trial court erred in submitting the issues to the jury on the principle of unjust enrichment, and whether the facts in this case sustain an application of that principle.
We find that the principle of unjust enrichment is more frequently applied in courts of Chancery, but as heretofore noted, it is also recognized in courts of law. It has been approved by this court as applied to a law court in the case of Arkansas National Bank v. Martin, 110 Ark. 578, 163 S.W. 795. This case was tried in Circuit Court of Garland County on dissimilar facts but involving the principle of unjust enrichment.
Fite, 233 Ark. at 472-73.
Thus, although unjust enrichment is an equitable cause of action, because it is based on the alleged breach of an implied contract, it may be heard in circuit court and may be heard by a jury. See, e.g., Fite, supra. However, we must reverse because restitution was not the only equitable remedy sought in Count I. FNB also sought an equitable lien on certain property. An equitable lien is a right to have a demand satisfied from a particular fund or specific property. Kane Enter. v. MacGregor, Inc., 322 F.3d 371 (5th Cir. 2003) (quoting Blacks Law Dictionary 934 7th ed. (1999)). An equitable lien has also been defined as a remedy that awards a nonpossessory interest in property to a party who has been prevented by fraud, accident or mistake from securing that to which he was equitably entitled. J. Lorimer v. Berrelez, 331 F. Supp.2d 585 (E.D. Mich. 2004) (quoting Senters v. Ottawa Sav. Bank, 443 Mich. 45, 503 N.W.2d 894 (1993). An action on an equitable lien was historically heard in chancery court because it is an equitable remedy. See Dews v. Halliburton Indus. Inc., 288 Ark. 532, 708 S.W.2d 67 (1986); Rose City Bottling Works v. Godchaux Sugars, Inc., 151 Ark. 269, 256 S.W. 825 (1922). Because an equitable lien was sought, the circuit court erred in submitting Count I to the jury, and because we reverse on this basis, we need not address the remaining issues.
Reversed and remanded. | [
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Jim Hannah, Justice.
Appellant Southern Farm Bureau Casualty Insurance (Farm Bureau) appeals from a jury verdict in Dallas County Circuit Court in favor of appellee Barbara Spears. Spears was driving a car owned by Jerl Saeler when a Coyote C-26 front-end loader, owned by the City of Fordyce and operated by Joseph Watson, collided with the vehicle. The jury found that Spears was entitled to uninsured-motorist coverage under an automobile policy with Farm Bureau, awarding damages in the amount of $15,188. Farm Bureau moved for judgment notwithstanding the verdict, which was denied.
On appeal, Farm Bureau argues that the circuit court erred in denying its motion for judgment notwithstanding the verdict because the jury delivered inconsistent verdicts and because Spears failed to meet her burden of proving that the front-end loader was an uninsured auto as defined in the insurance policy under which Spears was insured. In addition, Farm Bureau argues that the circuit court erred in instructing the jury that ambiguous terms in the insurance policy were to be construed against the insurer because Spears failed to present proof that the insurance policy contained ambiguous terms.
We hold that the circuit court erred in denying Farm Bureau’s motion for judgment notwithstanding the verdict and, accordingly, we reverse and dismiss. As this is the second appeal of this matter to this court, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (a) (7).
Facts
A full recitation of the facts was set forth in the prior appeal of this case. Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002) (Spears I). Here, we recite the facts that are pertinent to this appeal. In Spears I, Spears filed a complaint against the City of Fordyce, Joseph Watson, the operator of the front-end loader, and the Arkansas Public Entities Association (collectively referred to as “the City”), alleging that she suffered physical injuries and prop erty damages as a result of the negligence of the City of Fordyce and Joseph Watson. In addition, Spears claimed that she was entitled to receive benefits from Farm Bureau, based on an underinsured-motorist policy. The City filed a motion for summary judgment, arguing in part that the City was not required to carry liability insurance on the front-end loader because it was not a motor vehicle. Subsequently, Spears amended her complaint and alleged that in the event the circuit court determined that the City was immune from suit, she was entitled to recover the entire policy limits from an uninsured-motorist policy.
The circuit court granted the City’s motion for summary judgment, finding that the City was immune from liability except to the extent of coverage by liability insurance. Further, the circuit court found that insurance coverage was not required for the front-end loader because it was “special mobile equipment” pursuant to Ark. Code Ann. § 27-14-211 (Repl. 1994), and, as such, was not subject to registration with the State pursuant to Ark. Code Ann. § 27-14-703 (Repl. 1994).
Farm Bureau filed a motion for summary judgment, arguing that Spears’s claim for benefits from the uninsured-motorist policy was improper because the front-end loader was not an “auto” as defined in the policy. The circuit court granted Farm Bureau’s motion for summary judgment, finding that a front-end loader was special mobile equipment and was not a vehicle that was designed primarily to be used on public roads. Based on this finding, the circuit court concluded that Spears could not recover from the uninsured-motorist policy. In that case, we reversed and remanded the order of the Dallas County Circuit Court granting summary judgment in favor of the City of Fordyce, Joseph Watson, and the Arkansas Public Entities Risk Management Association.
Spears raised two points on appeal in Spears I. In her first point on appeal, she argued that the circuit court erred in determining that the front-end loader was “special mobile equipment” and, thus, not subject to registration with the State. We agreed and concluded that the appellants raised a genuine issue of fact as to whether the operation of the front-end loader on public roads was frequent and regular or merely incidental. See Spears I, 351 Ark. at 315, 92 S.W.3d at 44. Accordingly, we found that until this disputed factual question was resolved, it was impossible for us to determine whether the front-end loader is excepted from the statutory definition of “motor vehicle.” See id.
In her second point on appeal, Spears argued that the circuit court erred when it granted Farm Bureau’s motion for summary judgment. We held that the motion for summary judgment was premature, stating:
Specifically, we conclude that the issue of whether appellants may recover from Farm Bureau is not ripe for consideration until the issue of whether the City was required to carry insurance on the front-end loader is resolved. Because we have determined that this issue is not yet resolved, any consideration by the trial court of a motion for summary judgment in favor of Farm Bureau was premature, and any review by this court of the disposition of such a motion would also be premature. Accordingly, we decline to consider the merits of appellants’ second point on appeal.
Spears I, 351 Ark. at 315, 92 S.W.3d at 44.
After our reversal in Spears I, in a bifurcated trial, the jury found by a preponderance of the evidence that the front-end loader owned and operated by the City constituted “special mobile equipment” as defined in § 27-14-211. Farm Bureau moved for a directed verdict. The circuit court denied the motion and submitted to the jury the issue of whether Spears was entitled to recover damages from Farm Bureau through uninsured-motorist coverage.
The jury returned a verdict in favor of Spears and fixed her damages at $15,188.00. Subsequently, Farm Bureau filed a motion for judgment notwithstanding the verdict, raising the same arguments that it does here on appeal. The circuit court denied the motion, and this appeal followed.
Inconsistent Jury Verdicts
We begin by addressing Farm Bureau’s argument that the jury verdicts in this case are inconsistent because as a matter of law, once the jury determined that the front-end loader was “special mobile equipment” in Spears’s case against the City, it could not then determine that the front-end loader was an “auto” in Spears’s case against Farm Bureau. Specifically, Farm Bureau contends that upon the jury’s determination that the front-end loader was special mobile equipment, the question of whether or not the uninsured- motorist protection of the insurance policy applied was resolved because the front-end loader could not be both “special mobile equipment” and an “auto” at the same time. We disagree with Farm Bureau’s argument that the issue was resolved once the jury determined that the front-end loader was special mobile equipment in Spears’s case against the City. Rather, the issue of whether the front-end loader was special mobile equipment was the threshold issue in this case. Section 27-14-211 provides in part:
“Special mobile equipment” means every vehicle not designed or used primarily for the transportation of persons or property and incidentally operated or moved over the highways, including farm tractors, road construction or maintenance machinery, ditch-digging apparatus, well-boring apparatus, and concrete mixers.
(Emphasis added.)
Since municipalities are immune from liability and from suit for damages except to the extent that they may be covered by liability insurance, see Ark. Code Ann. § 21-9-301, and municipalities are not required to maintain liability insurance on special mobile equipment, see Ark. Code Ann. § 27-14-703, then a finding by the jury that the front-end loader was special mobile equipment means that the City was not required to maintain liability insurance on the front-end loader. At that point, Spears could recover from: (1) the City if, despite not being required to maintain liability insurance, it had insured the front-end loader, or (2) Farm Bureau, if the front-end loader was an uninsured auto under the insurance policy.
Still, Farm Bureau maintains that a vehicle which is deemed “special mobile equipment” and not a “motor vehicle” pursuant to § 27-14-211 cannot be deemed an “auto” under the insurance policy. Perhaps this would be so if the definition of “special mobile equipment” under § 27-14-211 were the same as the definition of “auto” as set out in the insurance policy. Flowever, that is not the case here.
“Special mobile equipment,” in relevant part, is “every vehicle not designed or used primarily for the transportation of persons or property and incidentally operated or moved over the highways. . . .” Ark. Code Ann. § 27-14-211 (emphasis added). The definition of “auto,” as set out in the insurance policy, is “a motor vehicle, semi-trailer or trailer designed primarily to be used on public roads.” (Emphasis added.) Clearly, a vehicle could be designed primarily to be used on public roads, even though it is not designed or used primarily for the transportation of persons or property over the highways. Therefore, we reject Farm Bureau’s argument that, as a matter of law, the front-end loader at issue cannot be both “special mobile equipment” under the Arkansas Code and an “auto” under the terms of the insurance policy.
Judgment Notwithstanding the Verdict
A circuit court is to evaluate a motion for judgment notwithstanding the verdict by deciding whether the evidence is sufficient for the case to be submitted to the jury; that is, whether the case constitutes a prima facie case for relief. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003). In making that determination, the circuit court does not weigh the evidence; rather, the circuit court is to view the evidence in a light most favorable to the party opposing the motion. Id. The standard of review for a motion for judgment notwithstanding the verdict is whether there is substantial evidence to support the jury verdict. Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture. Id. A motion for directed verdict at the close of all the evidence is a prerequisite to a post-trial motion for judgment notwithstanding the verdict. Ark. R. Civ. P. 50(b)(1).
In this case, the circuit court instructed the jury that Spears’s claim against Farm Bureau was based on an insurance policy for uninsured-motorist coverage, and that to prevail on her claim, Spears had the burden of proving: (1) that she sustained damages; (2) that Joseph Watson was negligent; (3) that such negligence was a proximate cause of Spears’s damages; (4) that an insurance policy issued by Farm Bureau for the benefit of Spears containing uninsured-motorist coverage was in effect at the time of the collision; and (5) that the front-end loader was an uninsured auto as defined in the insurance policy. Further, the circuit court stated:
You are instructed that an uninsured motorist provision of the policy under which Barbara Spears was insured, provided as follows:
Uninsured Motorist Coverage. This coverage will pay bodily injury damages, except punitive damages, that you are legally entitled to collect from the owner or driver of an uninsured auto. Bodily injury must be caused by an accident arising out of the operation, maintenance, or use of the uninsured auto.
You are instructed that the term auto, as used in plaintiffs automobile policy, means “a motor vehicle, semi-trailer or trailer designed primarily to be used on public roads.”
* * *
Farm Bureau argues that the circuit court erred in denying its motion for judgment notwithstanding the verdict because Spears failed to present proof that the front-end loader was an “auto” as defined in the insurance policy. Specifically, Farm Bureau contends that Spears failed to offer substantial evidence that the front-end loader was “designed primarily to be used on public roads.” Farm Bureau maintains that the focus of Spears’s proof at trial was the actual use of the front-end loader, as opposed to the purpose of the design of the front-end loader.
At trial, Joseph Watson, the operator of the front-end loader at the time of the accident, stated that the City used the front-end loader for cleaning ditches or making ditches, as well as clipping buildup on the side of the street and loading gravel and dirt. Fie further stated that the front-end loader was used frequently on the city streets. Watson testified that the front-end loader was designed for the purpose of “mov[ing] dirt.” Mayor William Lyon testified that vehicles such as front-end loaders are designed to be used “off the street.” No further evidence was presented concerning the purpose of the front-end loader’s design.
As stated previously, Spears had the burden of proving that the front-end loader was an uninsured “auto” under the insurance policy. We agree with Farm Bureau’s contention that the evidence presented at trial failed to prove that the front-end loader was “designed primarily to be used on public roads” and, thus, an “auto” as defined in the insurance policy. Since Spears failed to present sufficient evidence to prove that the front-end loader was an uninsured auto under the insurance policy, an essential element in this case, we conclude that there is not substantial evidence to support the jury’s verdict in favor of Spears. As such, we hold that the circuit court erred in denying Farm Bureau’s motion for judgment notwithstanding the verdict, and we reverse and dismiss. It is unnecessary for us to address Farm Bureau’s remaining arguments on appeal.
Reversed and dismissed.
Thornton, J., not participating.
Both Spears and Saeler, the owner of the vehicle Spears was driving, filed suit. For convenience, we refer only to Spears.
Spears does not appeal this finding.
Our resolution of the issue on this basis makes it unnecessary to address whether the font-end loader was uninsured. | [
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Per Curiam.
The Arkansas Department of Human Services (“DHS”) submitted a motion for rule on the clerk when the clerk of this court refused to accept the record tendered in this case. The record in this appeal includes a transcript that was prepared by Megan Smith. Ms. Smith was assigned as a temporary court reporter. Ms. Smith was not a licensed court reporter when the transcript was prepared. The clerk of the court correctly refused to accept the record. See Cranfill, M.D. v. Union Planters Bank, N.A., 354 Ark. 397, 123 S.W.3d 122 (2003). DHS moved that we accept the transcript as proffered in this case or that we remand this case to the trial court to settle the record. Appellees did not file a response.
We hereby remand this case to the trial court to settle the record. The specific facts of this case require a record to be lodged so that we can properly decide the case. In the interest of justice, we also direct the clerk of this court to accept the transcript if the attorneys for both parties certify by affidavit that the transcripts are true, accurate, and complete. Cranfill, supra.
Case remanded to settle the record. | [
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Jim Hannah, Justice.
The Arkansas Department of Finance & Administration (DF&A) appeals a decision of the Pulaski County Circuit Court entered after this case was remanded to the circuit court in Weiss v. McFadden, 356 Ark. 123, 148 S.W.3d 248 (2004) (McFadden II). DF&A argues that the circuit court erred in ordering a “front-end loaded” refund method for class members who retired after the lawsuit was filed in 1999, and that the circuit court erred in ordering a refund method for taxes paid prior to the lawsuit that was different than the refund method to be used for taxes paid after the lawsuit was filed.
The appeal in McFadden IIinvolved assertions by DF&A that the refund method fashioned by the circuit court was in error. Under the doctrine of law of the case, this same issue may not be raised again on the present appeal. Further, the decision of the circuit court to use a different refund method for taxes paid prior to filing the lawsuit in 1999 is not clearly erroneous. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(l) and (7).
Facts
This case concerns an attempt by DF&A to tax return of capital as if it were income. In Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003) (McFadden 1), this court held that the return to a retiree of after-tax contributions made to a retirement plan is not income subject to income tax because it constitutes return of capital rather than income. We further held that an income tax levied against after-tax contributions constituted an ad valorem tax in violation of Amendment 47 of the Arkansas Constitution. Therefore, the tax constituted an illegal exaction under article 16, section 13 of the Arkansas Constitution.
In McFadden II, this court held that the circuit court erred in failing to apply the voluntary payment rule in formulating its refund plan to benefits paid to retirees prior to the filing of the complaint in this case in 1999. This court further held that the circuit court did not err in refusing to apply 26 U.S.C. § 72 in fashioning the remedy in this case. The case was remanded for application of the voluntary payment rule.
Standard of Review
This case was tried with the circuit court sitting as the trier of fact. The standard of review on appeal is not whether there is substantial evidence to support the finding of the court, but whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Farm Credit Midsouth, PCA v. Reece Contractors, Inc., 359 Ark. 267, 196 S.W.3d 488 (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 firm conviction that a mistake has been committed. Farm Credit, supra. Disputed facts and determinations of credibility are within the province of the fact-finder. Id. At issue on this case is whether the circuit court erred in fashioning a remedy. In Lotz v. Cromer, 317 Ark. 250, 253, 878 S.W.2d 367 (1994), this court correctly stated that “ [i] n fashioning a remedy, a Chancellor has broad power, limited only to the extent that the remedy must be reasonable and justified by the proof.”
Law of the Case
In Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 69 SW.3d 383 (2002), this court discussed law of the case and stated:
The venerable doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. The doctrine serves to effectuate efficiency and finality in the judicial process. Frazier v. Fortenberry, 5 Ark. 200 (1843); see also, 5 Am. Jur. 2d Appellate Review § 605 (1995). We have said the following with regard to the law-of-the-case doctrine:
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. Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998). 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 of those which might have been, but were not,presented. Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994).
Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 346, 47 S.W.3d 227, 237 (2001). The rationale for the adherence to a strict application of the rule — the avoidance of the disorder and unpredictability that would follow a departure from the doctrine —■ has not changed.
Cadillac Cowboy, 347 Ark. at 970. The doctrine is conclusive only where the facts on the second appeal are substantially the same as those involved in the prior appeal. Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002). It does not apply if there is a material change in the facts. Id. In the case before us, there is no change of fact with respect to the retirees and their pensions. The only change on the present appeal is the application of the voluntary payment rule.
Front-End Loaded Method
The issue of whether the circuit court erred in applying a front-end loaded method to taxes paid after filing of the lawsuit in 1999 was already raised by DF&A in McFadden II. In McFadden II, this court stated that the appeal concerned “the refund mechanism fashioned by the trial court upon remand of Weiss I (McFadden I) as well as the issue of the constitutionality of Act 380 of 1991.” McFadden II, 356 Ark. at 126. This court also stated:
Both the appellee taxpayers and the DF&A proposed refund mechanisms as a remedy for taxes that had been illegally exacted from the appellees. The trial court opted for the appellees’ methodology, which allows retirees to recover the frill benefit of their after-tax contributions. The DF&A appeals this ruling, asserting that the trial court erred in (1) refusing to apply the voluntary-payment rule to any illegally-exacted taxes that were paid prior to the filing of the lawsuit in 1999, and (2) refusing to apply 26 U.S.C. § 72, which prorates recovery of after-tax contributions on federal tax returns.
Id. Therefore, according to this court in McFadden II, DF&A was appealing the circuit court’s decision on the refund method and alleged that the circuit court erred in adopting the “appellee’s methodology.” The “appellee’s methodology,” as noted in the opinion in McFadden II, was the “front-end loaded” method.
After considering the arguments of the parties, this court held in McFadden II that with respect to the refund method, “the trial court did not err in refusing to apply 26 U.S.C. § 72 to employment-related retirement plans.” Further we held, “Because the trial court erred in refusing to apply the voluntary-payment rule to illegally-exacted taxes paid in the years prior to 1999, we reverse and remand on this point with instructions to fashion a remedy consistent with this opinion.” McFadden II, 356 Ark. at 131. As the circuit court correctly stated in its May 13, 2004, Order Upon Remand: “The only issue remanded to this court was the application of the voluntary payment rule to illegally exacted taxes paid in years prior to 1999.”
Voluntary Payment Rule
There is no error in the circuit court’s application of the voluntary payment rule in this case where the refunds for taxes paid prior to filing the lawsuit in 1999 are handled differently than refunds for taxes paid after the lawsuit was filed. No authority is cited which requires the circuit court to utilize the same methods for both periods in this case. The circuit court was clearly attempting to exercise equity to assure that retired pensioners receive the refund due within a time frame that provides some reasonable form of actual relief. Some retirees may have passed away since this action was begun almost five years ago, and such retirees have been effectively denied relief.
There is no showing that the remedy ordered by the circuit court is unreasonable or not justified by the proof. Upon remand, the circuit court did precisely what it was ordered to do by this court in McFadden II. The findings of the circuit court are not clearly erroneous. We find no error and affirm.
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Betty C. Dickey, Justice.
This is an appeal of an order quieting title to ten acres of land in Newton County in the Arkansas Game and Fish Commission (AGFC). Carey and Patsy Wyatt occupied three of the ten acres under a 1998 quitclaim deed that contains the following description: “Part of the SE 1/4 of the NE 1/4 of Section 11, Township 15 North, Range 19 West, containing 3 acres, more or less.” In 2000, the AGFC received a deed conveying, “. . . that part of the SE 1/4 of the NE 1/4 containing 7 acres, lying West and North of Cave Creek; also a part of the NW 1/4 of the SE 1/4 lying on the north side of Cave Creek, containing 5 acres, more or less, and being in the aggregate of 52 acres, more or less. . . .”
Although the AGFC’s deed, on its face, conveyed seven acres, the AGFC interpreted the deed to convey the entire ten-acre tract lying north and west of the creek, based on the rule of construction that references to acreage in a deed are secondary to references to artificial and natural monuments. In 2001, the AGFC attempted to remove the Wyatts by filing a criminal trespass action. The Wyatts filed suit to quiet title in their three acres. The AGFC answered that the Wyatts’s title was void for lack of a definite description, and counterclaimed to quiet title in the ten acres.
On September 16, 2002, the AGFC filed a motion for summary judgment, arguing that its deed should be interpreted to convey all ten acres lying north and west of the creek. The AGFC argued that, if the deed’s reference to seven acres was removed from the description, the deed would describe the entire acreage lying north and west of the creek: “that part of the SE 1/4 of the NE 1/4 [containing 7 acres] lying West and North of Cave Creek.” The AGFC’s motion was accompanied by the affidavit of its own surveyor, Steve Parish, and the affidavit of another surveyor, William Cochrane, interpreting the legal description in the AGFC deed as transferring all of the land in the SE 1/4 of the NE 1/4 lying north and west of the creek. The AGFC also argued that if it were not the titleholder of the ten acres by virtue of its deed, it was entitled to ownership by adverse possession.
The Wyatts, recognizing the infirmity in their own deed, responded to the motion by abandoning their quiet-title action and instead challenged only the AGFC’s ability to quiet title in the ten acres on the strength of its deed. They asserted that the AGFC’s deed was indefinite because it failed to identify which seven of the ten acres lying north and west of the creek were being conveyed. The Wyatts further argued that the AGFC was not entitled to have its deed reformed to reflect a conveyance of all ten acres lying north and west of the creek.
After a hearing, the trial court granted summary judgment to the AGFC, deleting the deed’s reference to seven acres, and changing the words “that part of the SE 1/4 of the NE 1/4,” to, “All of the property.” The court then entered an order interpreting the land description in the AGFC’s deed as follows:
All of the property lying West and North of Cave Creek in the SE 1/4 of the NE 1/4 of Section 11, Township 15 North, Range 19 West, Newton County, Arkansas.
The trial court did not address the AGFC’s claim for adverse possession, having ruled in the AGFC’s favor on the deed. The trial court based its decision on Dierks Lumber and Coal Co. v. Tedford, 201 Ark. 789, 146 S.W.2d 918 (1941) and Scott v. Dunckel Box & Lumber Co., 106 Ark. 83, 152 S.W.1025 (1912).
The Arkansas Court of Appeals reversed the trial court, noting that the issue was one of law and ruling that the trial court had erred in reforming the deed rather than interpreting it. The court of appeals held that, because the creek is only a directional indicator of where the seven acres are located, the AGFC deed did not describe the conveyance by reference to the creek but by reference to the seven acres. Characterizing the deed as containing an indefinite “part” description, the court of appeals held that there were no monuments to elevate over acreage and the AGFC’s deed was void for indefiniteness. The court of appeals remanded for the AGFC to pursue its claim of adverse possession, which the trial court had not reached.
The AGFC petitioned this court for review, arguing that monuments control over references to acreage, and contending that the court of appeals decision reversed precedent. When this court grants a petition for review, we consider the matter as if the appeal had been originally filed in this court. Neill v. Nationwide Mut. Fire Ins., Co., 355 Ark. 474, 127 S.W.3d 484 (2003); BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001).
A trial court may grant summary judgment 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. Craighead Elec. Coop. Corp. v. Craighead County, 352 Ark. 76, 98 S.W.3d 414 (2003); Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002). Once the moving party has established a prima facie case showing 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 its motion leave a material fact unanswered. Id. 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. Craighead Elec., supra; Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998).
In this case, the Wyatts argue that the trial court erred in interpreting a deed which grants seven unspecified acres in a ten-acre tract to actually encompass the entire ten acres, and changing the legal description to reflect ownership of all ten acres, to the detriment of the Wyatts, who peacefully possessed three acres in the same tract pursuant to a deed purchased for value.
This court does not consider the legal description contained in the Wyatts’s deed because the Wyatts abandoned their quiet-title action and instead challenged only the AGFC’s ability to quiet title in the ten acres on the strength of its deed. In an action to quiet title, the plaintiff must recover on the strength of his own title and not on the weakness of the defendant’s title. Wyatt v. Wycough, 232 Ark. 760, 341 S.W.2d 18 (1960).
The AGFC legal description at issue in this case reads:
The SW 1/4 of the NE 1/4, 40 acres, more or less; that part of the SE 1/4 of the NE 1/4 containing 7 acres, lying West and North of Cave Creek; also a part of the NW 1/4 of the SE 1/4 lying on the north side of Cave Creek, containing 5 acres, more or less, and being in the aggregate of 52 acres, more or less, all in Section 11, Township 15 North, Range 19 West, all in Newton County, Arkansas.
According to the AGFC, the language of the deed should be read to omit the words, “containing 7 acres” lying West and North of Cave Creek. We agree.
Here, the trial court actually reformed the deed to read, “All of the property lying West and North of Cave Creek in the SE 1/4 of the NE 1/4 of Section 11, Township 15 North, Range 19 West, Newton County, Arkansas.” (Emphasis Added). However, before an instrument can be reformed, it must appear that it fails to express the agreement of the parties because of a mutual mistake or mistakes on one side and fraud and inequitable conduct on the other. See Jeffers v. American Pioneer Life Insurance, 256 Ark. 332, 507 S.W.2d 713 (1974). Neither party is entitled to such reformation because neither fraud nor mutual mistake was pled or proven. In the present case, the trial court reformed the deed by adding and substituting language such as “all” for “that part.” Although the trial court ruled in favor of the AGFC on the basis of reformation, it was error to do so. Nonetheless, the trial court is affirmed because it was correct for another reason. Releford v. Pine Bluff School District No. 3, 355 Ark. 503, 140 S.W.3d 483 (2004). In short, the legal description in the AGFC’s deed is not void for vagueness because it can be read and interpreted to identify the disputed property.
In Scott v. Dunkel Box & Lumber Co., 106 Ark. 83, 152 S.W.1025 (1912), a deed passed title to 100 acres, more or less, but the actual acreage conveyed was about 254 acres. This court held that the discrepancy between acreage as given in a deed and that which appellant claims does not alone render the deed void. This court stated:
The most general terms of description employed in deeds to ascertain the things granted are: (1) quantity; (2) course and distance; (3) artificial or natural objects and monuments. And whenever a question arises as to description, the terms or objects most certain and material will govern. Therefore quantity yields to course and distance, and course and distance to artificial and natural objects. A call for quantity in a deed must yield to a more definite description by metes and bounds. The quantity of land conveyed is generally mentioned in the deed; but, without an express averment or covenant as to quantity, it will always be regarded as a part of the description merely, and it will be rejected if it be inconsistent with the actual area of the premises, if the same is indicated and ascertained by known monuments and boundaries. It aids, but does not control, the description of the granted premises. Our own court has said of the words “more or less,” when used in the description of land conveyed, that they are words of precaution, intended to cover slight or unimportant inaccuracies, but that they do not control an otherwise good description.
Id. (Internal Citations Omitted).
This court held in Turner v. Rice, 178 Ark. 300, 10 S.W.2d 885 (1928), that the acreage mentioned in a government call of lands, even without the words “more or less,” does not control or dominate the description. Wherever one is granted land by government call, he takes the whole of the call without reference to the amount of acreage added to the description. Id. “In other words, if one is deeded the northeast quarter of any particular section containing any particular number of acres, he would take the whole quarter section, irrespective of the number of acres mentioned.” Id. at 303.
Later, in Tedford, 201 Ark. 789, 146 S.W.2d 918, citing Scott and Turner, this court held that in the absence of an express averment or covenant as to quantity, the quantity mentioned in the deed does not control the description of the granted premises. The applicable rule is that where the instrument contains words of qualification, such as “more or less” or words of similar import, the statement of quantity of acres conveyed is a mere matter of description, and not of the essence of the contract, and the purchaser takes the risk of quantity, there being no fraud or gross mistake. Hays v. Hays, 190 Ark. 751, 81 S.W.2d (1935). The mention of quantity of acres, after a certain description of the subject by metes and bounds, or by other known specifications, is but a matter of description, and does not amount to any covenant, or afford ground for the breach of any of the usual covenants, though the quantity of acres should fall short of the given amount. Id. In Hays, the court wrote, “whenever it appears, by definite boundaries, or by words of qualification, as ‘more or less’ or as ‘containing by estimation,’ or the like, that the statement of the quantity of acres in the deed is mere matter of description and not of the essence of the contract, as a general rule, the buyer takes the risk of the quantity, if there be no intermixture of fraud in the case.”
The applicable general rules are not in dispute. Where land is sold “in gross” or where the legal description is qualified by the words “more or less,” the buyer takes the risk of the quantity, in the absence of fraud. Clover v. Bullard, 170 Ark. 58, 278 S.W.2d 645 (1926). The law does not look solely to the quantity of the shortage but also to all other relevant facts and circumstances. Hays, supra; Birch-Brook. Inc. v. Ragland, 253 Ark. 161, 485 S.W.2d 225 (1972). A deed will not be held void for uncertainty of description if by any reasonable construction it can be made available. Gipson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974). A description of land is sufficient if the descriptive words in the deed furnish a key of identifying the land conveyed. Davis v. Burford, 197 Ark. 965, 125 S.W.2d 789 (1939). A deed is not void for uncertainty if the land can be located by the description used. Tolle v. Curley, 159 Ark. 175, 251 S.W. 377 (1923).
Since it can be determined what part of the property is being conveyed, the trial court correctly concluded that the acreage mentioned in a deed does not control the description of the granted premises, but must yield to the land described by a monument, whether natural or artificial. Tedford, supra. Here, the phrase “that part” in the description references the phrase “lying West and North of Cave Creek,” so that the specific location of the grant is easily ascertainable. The deed grants “that part” of the SE 1/4 of the NE 1/4 that lies West and North of Cave Creek. In this instance, that part of the quarter section lying West and North of Cave Creek contains ten acres. It is of no consequence that the stated acreage, seven acres, is incorrect. In Turner v. Rice, this court rejected an argument that the description was insufficient to identify and locate the land simply because the mentioned acreage was incorrect. Similarly, here, the phrase “containing 7 acres” is not controlling because the description is otherwise sufficient to identify the land. Consequently, the deed is not void.
Moreover, if the phrase “that part” modified the phrase “containing 7 acres,” this court’s precedent would dictate a similar result. As stated previously above in Tedford, supra, the court interpreted the phrase “that part of the Northwest Quarter Southeast quarter, containing 25 acres lying east of the Center Point and Caddo Gap road” as “containing 25 acres, more or less . . .” Id. at 791-92, 146 S.W.2d at 919. Where the instrument contains words of qualification, such as “more or less,” or words of similar import, the statement of quantity of acres conveyed is a mere matter of description. Hayes, supra; Scott, supra.
While the phrase in question in this case does not expressly contain the words “more or less,” the phrase is substantially similar to the phrase “containing 25 acres” in Tedford, supra, which is interpreted to mean “containing 25 acres, more or less.” Here, too, the phrase could be interpreted to mean, “That part of the SE 1/4 of the NE 1/4 containing / acres more or less, lying West and North of Cave Creek.” Thus, under Tedford, the deed’s legal description can be interpreted to identify the ten-acre tract as having been conveyed to the AGFC.
Affirmed as Modified.
Even though the "Wyatts’s deed was abandoned, they were in possession when the suit was filed and are therefore in a position to question the title asserted by the AGFC. Irby v. Drush, 220 Ark. 250, 247 S.W.2d 204 (1952). | [
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Annabelle Clinton Imber, Justice.
This case involves the judicial review of a decision by Appellant Arkansas Tobacco Control Board (“the Board”) to deny the petition of Appellee Santa Fe Natural Tobacco Company (“Santa Fe”) for a retail cigarette and tobacco permit for its New Mexico and North Carolina locations. The Board based its denial on its interpretation of Ark. Code. Ann. §26-57-203(11) (Repl. 1997) as requiring a physical location in Arkansas for the sale of cigarettes. The only issue in this case is the propriety of the Board’s interpretation of that statutory provision, which issue is a matter of first impression for this court. Thus, we have jurisdiction pursuant to Ark. Sup. Ct. R. l-2(b)(l).
The Arkansas Tobacco Control Board issues and renews retail cigarette licenses pursuant to The Tobacco Act, Ark. Code. Ann. §§ 26-57-201 et seq. (Repl. 1997). As Santa Fe is a licensed wholesaler of cigarettes in Arkansas, it sells cigarettes to retailers in Arkansas, who then sell the cigarettes to consumers. Since 1996, Santa Fe has also been licensed as a retailer in Arkansas and has sold cigarettes to Arkansas smokers by direct mail. In 2001, however, the Board denied Santa Fe’s application for renewal of its retail cigarette permits, stating that the Board staff had discovered that Santa Fe’s locations were not in Arkansas, and the company was in violation of the Board’s interpretation of § 26-57-203(11) as requiring a physical counter location in Arkansas. Santa Fe filed an action in Pulaski County Circuit Court seeking judicial review of the Board’s decision and a declaratory judgment on the constitutionality of the statute. The circuit court found that the Board incorrectly interpreted the statute as limiting retail sales to physical locations in the state. The court further held that an interpretation of the statute as barring direct-to-consumer sales of cigarettes would violate the dormant Commerce Clause of the United States Constitution. The Board filed a timely notice of appeal. We agree with the Board’s interpretation of section 26-57-203(11) and reverse the circuit court.
This case turns on an analysis of Ark. Code Ann. § 26-57-203(11) (Repl. 1997), which defines retailer as “any person who purchases tobacco products from licensed wholesalers for the purpose of selling them over the counter at retail to consumers.” The Board contends the phrase “over the counter” in this provision requires cigarette retailers to sell from a physical location in Arkansas. Sante Fe, on the other hand, argues that such an interpretation is contrary to the common interpretation of the phrase “over the counter” and is a violation of the dormant Commerce Clause. We review issues of statutory interpretation de novo. Brewer v. Fergus, 348 Ark. 577, 79 S.W.3d 831 (2002).
1. Statutory Construction
The basic rule of statutory construction to which all interpretive guides must yield is to give effect to the intent of the Legislature. American Casualty Company v. Mason, 312 Ark. 166, 647 S.W.2d 392 (1993). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. 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. Bank of Eureka Springs v. Evans, 353 Ark. 438, 109 S.W.3d 672 (2003). We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. When a statute is ambiguous, we must interpret it according to the legislative intent. Id. Our review becomes an examination of the whole act. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. We also look to the legislative history, the language, and the subject matter involved. Id.
In this case, we must discern the meaning of the phrase “over the counter” as applied to cigarette sales. Although a definition of the phrase is not included in the Act, “over-the-counter” is defined in Webster’s Third New International Dictionary (2002) as:
1 a : not traded on an organized securities exchange : traded in direct negotiations between buyers and sellers or their representatives : unlisted b : not effected on an organized securities exchange
2 : capable of being sold legally without the prescription of a physician, dentist, or veterinarian.
Id. at 1611. Clearly, the dictionary applies the phrase “over-the-counter” to only the sale of stocks or securities (in part 1) and drugs (in part 2). These definitions, when applied to the sale of cigarettes, are ambiguous. Thus, we must try to discern what the legislature intended when it passed the statute.
To reiterate, in determining the legislative intent, we review the entire act and reconcile the provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Bank of Eureka Springs v. Evans, supra. Notably, the statute repeatedly suggests retailers will be located within Arkansas. First, section 26-57-203(7) defines “manufacturer” as “any person who produces any tobacco product for sale and includes, but is not limited to, importers and distributors who deal in tobacco products as manufacturers and who are required under this sub-chapter to sell only to licensed wholesalers or licensed retailers located in Arkansas.” Ark. Code Ann. § 26-57-203(7) (Repl. 1997) (Emphasis added). Section 26-57-203(19) allows an Arkansan doing business in an adjoining city to qualify as a wholesaler if “that person is regularly engaged in the sale of tobacco products to licensed retailers within Arkansas . . . .” Ark. Code Ann. § 26-57-203(19) (Repl. 1997). Section 26-57-234(a)(6) directs the retailer to allow inspection of “his stock of merchandise and premises, including any room or building used in connection with his business.” As such, the statute additionally indicates that the legislature intended for retailers to conduct sales from a location within the State, as inspection of merchandise and premises of retailers outside the state would be a difficult task for the Arkansas Tobacco Control Board. Ark. Code Ann. § 26-57-234(a)(6) (Repl. 1997).
Furthermore, notwithstanding Santa Fe’s argument to the contrary, the inclusion of an explicit residency requirement for wholesalers in the original drafting of the statute does not necessarily suggest that the legislature did not intend a residency requirement for retailers. In fact, noting the fundamental differences in retailers and wholesalers, the legislative silence actually lends more credibility to the Board’s interpretation. The underlying rationales, such as the ability to collect taxes and inspect goods for contamination, which compelled the legislature to enact a residency requirement for wholesalers, are just as powerful when applied to retailers. However, arguably, the legislature could have assumed retailers would be physically located in Arkansas, making an explicit statement on the residency of a retailer unnecessary, and in fact redundant. In 1977, when the statute was enacted by the legislature, such an assumption would have made sense. It is only after the technological developments of the last twenty-five years that new and different avenues for the marketing of goods to consumers have emerged. In 1977, when the statute was originally drafted, consumers would simply drive to their local grocery store or gas station to purchase cigarettes. Unlike modern-day consumers, consumers in 1977 were not given the option to e-mail or fax an order to an out-of-state retailer. By contrast, the legislature would have been aware that it was possible and even probable that wholesalers would be located outside of the state and would ship goods into the state to retailers for sale. Thus, while the legislature made a specific residency requirement for wholesalers, we conclude based on our review of the entire statutory scheme that there is also an implied residency requirement for retailers.
2. Dormant Commerce Clause
Santa Fe also argues that a requirement making retailers sell cigarettes from physical locations within Arkansas violates the dormant Commerce Clause of the United States Constitution. The Commerce Clause of the Constitution empowers Congress to “regulate Commerce . . . among the several states,” U.S. Const. Art. 1, § 8, cl. 2, and “has long been recognized as a self-executing limitation on the power of the States to enact laws imposing substantial burdens on [interstate] commerce.” South-Central Tim- her Dev., Inc., v. Wunnicke, 467 U.S. 82, 87 (1984). The United States Supreme Court has adopted a two-part test in analyzing state regulations under the dormant Commerce Clause. When a state statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, the Supreme Court has generally struck down the statute without further inquiry. Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573 (1986). However, when the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Thus, the first crucial question in the instant case is whether requiring retailers to have a physical location inside the state discriminates against interstate commerce.
As Santa Fe correctly notes, we have twice previously struck residency requirements for tobacco wholesalers as unlawfully discriminating against interstate commerce. Wometco Services, Inc. v. Gaddy, 272 Ark. 452, 616 S.W.2d 466 (1981); Ragland v. McLane Company, Inc., 287 Ark. 216, 697 S.W.2d 892 (1985). In Ragland, we characterized the statute in question as facially discriminatory and stated, “the statutory scheme under consideration is not merely a burden on interstate commerce,.it brings tobacco commerce to a halt at our.borders. ...” Id. at 218, 697 S.W.2d at 894. In contrast to the residency requirements for wholesalers, a residency requirement for retailers would not “bring tobacco commerce to a halt at our borders,” as out-of-state wholesalers such as Santa Fe can sell their products to in-state retailers. Moreover, out-of-state retailers can simply establish a physical location within Arkansas from which to sell cigarettes. Thus, as opposed to the provision in Wometco and Ragland where the Santa Fe cigarettes could not have been for sale in Arkansas, the current provision still allows the cigarettes to be sold in Arkansas and merely regulates the sales of all cigarettes.
Furthermore, the statute applies equally to in-state retailers and out-of-state retailers. In its July 19, 2001 Order, the Board stated, “Only sales that are made face-to-face can provide the protection that is intended by these statutes.” Thus, any sale of cigarettes in the state of Arkansas must be made in a face-to-face transaction at a physical location. All retailers, both in-state and out-of-state, will be required to maintain a physical location in Arkansas and to conduct all their sales from that location. As the statute regulates in-state and out-of-state retailers equally, we hold that it is not facially discriminatory.
Moreover, the statute does not discriminate against interstate commerce in its effects. Though the Supreme Court has recognized that a facially-neutral statute can still be discriminatory if its effects discriminate against out-of-state retailers, Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333 (1977), the Arkansas statute does not suggest such discrimination. In Hunt, the Court was faced with a North Carolina statute that mandated that all graded apples follow the USDA grading system. While, as here, the statute applied evenhandedly to interstate retailers and in-state retailers, the North Carolina restriction placed a large burden on Washington State retailers, who used a different grading system and would be forced to conform to the North Carolina system by one of several costly methods or not grade their apples sold in North Carolina. Furthermore, as Washington had adopted an arguably superior grading system, the North Carolina regulation operated to “strip from the Washington apple industry the competitive and economic advantages it ha[d] earned for itself through its expensive inspection and grading system.” Id. at 351. Because North Carolina apple growers and dealers were already using the USDA grading system, the law had no effect on their practices. Due to this disparate impact against the Washington apple dealers, the Court found the state “ha[d] the practical effect of not only burdening interstate sales of Washington apples, but also discriminating against them.” Id. at 350. Conversely, the Arkansas statute at issue in this case places the same burden of maintaining a physical location on all cigarette retailers. While it is true that out-of-state retailers like Santa Fe who previously did not have a physical location will now be forced to set up such a location, the same is true of any Arkansas retailers who does not have a physical location. Similarly, neither Arkansas nor out-of-state retailers who have established physical locations will be affected by the Board’s interpretation. The statute does not have a disparate impact on out-of-state retailers but affects all retailers who do not currently maintain a physical location, regardless of their classification as in-state or out-of-state. We therefore hold that the statute does not discriminate in its effects.
Because the statute is neither facially discriminatory nor discriminatory in its effect, we must follow the balancing test stated in Pike v. Bruce Church, supra. In Pike, the Supreme Court stated,
Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.
Pike v. Bruce Church, 397 U.S. at 142. Here, the legislative purpose can be found in Ark. Code Ann. § 26-57-202, which establishes the legislative findings and purposes. Section 26-57-202 states:
(a) It is recognized, found, and determined by the General Assembly that:
(1) The Surgeon General of the United States has determined that the smoking of cigarettes is detrimental to the health of the smoker;
(2) The Arkansas General Assembly had already recognized this hazard many years ago when it enacted § 5-27-227 regulating the sale of tobacco to minors, §§ 20-27-201 — 20-27-703 establishing a policy for public smoking, and this subchapter to provide for close supervision ad control of the sale of cigarettes and other tobacco products;
(3) The state has a very valid governmental interest in preserving and promoting the public health and welfare of its citizens; and
(4) It is the responsibility of the General Assembly to enact legislation to protect and further this essential governmental interest.
(b) It is therefore the intent of this subchapter to:
(1) Provide for the close supervision and control of the licensing of persons to sell cigarettes and other tobacco products in this state in order to assure that cigarettes and other tobacco products distrib uted in the state are fresh, not contaminated, and are properly taxed, stamped, stored, and distributed only to persons authorized to receive these products; and
(2) Impose licenses, fees, taxes, and restrictions on the privilege of dealing in or otherwise doing business in tobacco products in order to promote the public health and welfare of the citizens of this state and to protect the revenue collection procedures incorporated within this subchapter.
Ark. Code Ann. § 26-57-202 (Repl. 1997). As this section notes, the legislature has advanced an interest in the protection of minors from being sold cigarettes illegally. Though we previously denounced this interest in Wometco, supra, and Ragland, supra, as not a legitimate aim of the statute, the legislature has enacted significant changes in the statutory scheme since those cases were decided. For example, the legislature created the Arkansas Tobacco Control Board, which is charged with the responsibility of promulgating regulations for the proper enforcement and implementation of the tobacco laws, including licensing of wholesalers and retailers. Ark. Code Ann. § 26-57-256 (Repl. 1997). Additionally, amendments to the Arkansas Sales to Minors Act have instituted increasingly stringent requirements to curb the sale of cigarettes to minors and to punish violations of the Act. In 1991, the legislature made significant additions to Ark. Code Ann. § 5-27-227, which originally contained only one provision reading, “It shall be unlawful for any person, other than the parent or guardian, to give, barter or sell to a minor under eighteen (18) years of age, tobacco in any form or cigarette papers.” Ark. Code. Ann. § 5-27-227 (Repl. 1987). The 1991 amendment added the following six sections:
(b) It shall be unlawful for any person who has been issued a permit or a license under the Arkansas Tobacco Products Tax Act of1977, § 26-57-201 et seq., as amended, to fail to display prominently, at each retail sales counter or each vending machine, a sign that meets the following requirements:
(1) The sign shall contain in red lettering at least one-half inch (1/2") high on a white background “IT IS A VIOLATION OF THE LAW FOR CIGARETTES OR OTHER TOBACCO PRODUCTS TO BE SOLD TO A PERSON UNDER THE AGE OF 18” and
(2) The sign shall include a depiction of a pack of cigarettes at least two inches (2") high defaced by a red diagonal diameter of a surrounding red circle
(c) It shall be unlawful for any manufacturer whose tobacco products are distributed in this state and any person who has been issued a permit or license under the Arkansas Tobacco Products Tax Act of 1977, § 26-57-201 et seq., to distribute free samples of any tobacco product or coupons that entide the holder of the coupon to any free sample of any tobacco product;
(1) In or on any public street or sidewalk within five hundred feet (500 ft.) of any playground, public school, or other facility when such facility is being used primarily by persons under eighteen (18) years of age for recreational, education, or other purposes; or
(2) To any person under eighteen (18) years of age.
(d) (1) Except as provided in subdivision (d)(2) below, it shall be unlawful for any person who owns or leases tobacco vending machines to place a tobacco vending machine in a public place. For purposes of this subdivision, “public place” means a publicly or privately owned place to which the public or substantial numbers of people have access.
(2) Tobacco vending machines may be placed in restricted areas within a factory, business, office, or other structure to which members of the general public are not given access; in permitted premises which have a permit for the sale of [sic] dispensing of alcoholic beverages for on-premises consumption which restrict entry to persons age twenty-one (21) or older; or places where the vending machine is under the supervision of the owner or an employee of the owner.
(e) Any person who violates any of the provisions in this section shall be deemed guilty of a misdemeanor and subject to the following penalties:
(1) A fine of one hundred dollars ($100) for the first violation;
(2) A fine of two hundred fifty dollars ($250), plus revocation and suspension of the permit or license to distribute or sell tobacco products from the site and vending machine for seven (7) days where the violation occurred, for a violation occurring within two (2) years of the first violation
(3) A fine of five hundred dollars ($500), plus revocation and suspension of the permit or license to distribute or sell tobacco products from the site and vending machine for not less than one (1) month nor more than six (6) months, for a third violation occurring within two (2) years of the first violation;
(4) (A) Afine of one thousand dollars ($1,000), plus revocation and suspension of the permit or license to distribute or sell tobacco products from the site and vending machine for not less than nine (9) months nor more than eighteen (18) months, for each additional violation occurring within two (2) years of the first violation;
(B) Upon any revocation or suspension of a permit or license under the provisions of subsection (f) of this section, the person shall not be issued any new permit or license to distribute or sell tobacco products during the period of suspension or revocation.
(f) In addition to the penalties in subsection (e) of this section, upon the fourth or subsequent violation of subsection (a) within a two-year period, all of that person’s licenses or permits to distribute or sell tobacco products at all sites, locations, and vending machines shall be suspended or revoked and shall not be renewed for a period of not less than nine (9) nor more than eighteen (18) months. Further, that person shall not be issued any new permit or license for not less than nine (9) nor more than eighteen (18) months. It shall be a defense to the penalty imposed under this subsection if the person affirmatively demonstrates that the person has an effective system in place to prevent violations of the prohibition of subsection (a).
(g) The person convicted of violating any provision of this section whose permit or license to distribute or sell tobacco products is suspended or revoked shall, upon conviction, surrender to the court all such permits or licenses, and the court shall transmit those permits and licenses to the Director of the Department of Finance and Administration to suspend or revoke, and not renew, the person’s permit or license to distribute or sell tobacco products, and not to issue any new permit or license to that person for the period of time determined by the court in accordance with this section.
Ark. Code Ann. § 5-27-227 (Supp. 1991). This amendment constituted a dramatic expansion of the Act. The added sections — the requirement of a prominent sign, the addition of a fine for a violation of the Act, and location restrictions for vending machines ■— are all aimed at decreasing access to cigarettes for minors. These substantial changes to the statutory scheme signify an appreciable shift in the import of the legislative purpose of preventing the sale of tobacco to minors. Moreover, the legislature has shown its dedication to this purpose by continuing to strengthen the regulations that discourage the sale of tobacco to minors. In 1999, the legislature amended section 5-27-227, making several notable changes to the law. Ark. Code Ann. § 5-27-227 (Supp. 1999). For example, the amended section makes it unlawful for any person to provide tobacco products to minors, whereas the old section excepted parents and guardians. Ark. Code Ann. § 5-27-227(a). The new section also holds minors themselves accountable, by making it unlawful for minors to use, possess, purchase or attempt to purchase tobacco, with limited exceptions for minors acting within the scope of their employment. Ark. Code Ann. § 5-27-227(b). Most significantly, the 1999 amendment removed the notation that violations were “misdemeanors” and provided harsher penalties for violations. Ark. Code Ann. § 5-27-227(i)(l). Under the most recent version of the statute, the minimum fine is two-hundred and fifty dollars ($250), and the two-year period for measuring cumulative violations has been increased to four years. Ark. Code. Ann. § 5-27-227(i)(l) (Supp. 2003). Thus, since 1985, the statute has grown from a one-section prohibition on sales with an exception for parents or guardians of the minor to a complete statutory scheme with harsh fines and penalties that holds retailers, parents and guardians, and the minor accountable. It is impossible to look at these legislative changes without recognizing that the governmental interest in protecting minors from cigarettes has changed since our decisions in Wometco, supra, and Ragland, supra. In enacting the foregoing amendments to the Arkansas Sales to Minors Act, it is clear that the legislature has explicitly expressed a substantial governmental interest in the prevention of sale of tobacco to minors.
Santa Fe further argues that the Board’s interpretation will not significantly curb the purchase of tobacco by minors. When evaluating a facially-neutral statute, however, the only question is whether the regulation is rationally related to the achievement of the statutory purpose. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463 (1981). As in Minnesota v. Clover Leaf Creamery, the appellees in this case do not seem to challenge the theoretical connection between the direct sale of cigarettes and minors’ access to tobacco. Instead, they are challenging the em pirical evidence presented at the Board hearing, arguing that direct sales are not a primary method used by minors to purchase cigarettes. Yet, “states are not required to convince the courts of the correctness of their legislative judgments.” Minnesota v. Clover Leaf Creamery, Co., 449 U.S. at 464. Here, Santa Fe only requires the purchaser to submit a photocopy of the front and back of a government-issued identification as verification of age. Even Santa Fe’s vice-president of distributing admitted it would be easy for a minor to simply submit a photocopy of a fake identification. While there was testimony that only two percent of underage smokers purchased cigarettes through this manner, the legislature nonetheless has the right to take measures to close off that avenue for minors. Id. at 466 (“This Court has made clear that a legislature need not ‘strike at all evils at the same time or in the same way. . . a legislature may implement [its] program step by step . . . adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.’ ”). Likewise, the Second Circuit Court of Appeals, when addressing a similar statute, has noted that, “the prevention of even this small percentage of cigarette sales to minors constitutes a putative local benefit that is sufficient to survive the Pike balancing test.” Brown & Williamson Tobacco Corp. v. Pataki, 320 F.3d 200, 217 (2d Cir. 2003).
Having recognized the governmental purpose and benefits, we now turn to the burden this interpretation places on interstate commerce. Although we recognize that the Board’s interpretation will place some burden on retailers, we do not believe this burden is sufficient to invalidate the statute under the dormant Commerce Clause. Though there was testimony that the Board’s interpretation would “severely hamper [Santa Fe’s] ability to market [its] product in Arkansas,” Santa Fe cigarettes are currently carried by at least 40 retailers within Arkansas. In this case, the burden on commerce is notably less than the burden in Exxon Corp. v. Maryland, 437 U.S. 117 (1978), where the Court upheld a Maryland gasoline regulation, despite evidence that the requirements would force at least three refiners to stop selling entirely in Maryland. Here, Santa Fe cigarettes will still be available and sold in Arkansas. Based upon the Supreme Court’s holding in Exxon, we conclude that this burden is not sufficient to outweigh the State’s significant interest in limiting the sale of cigarettes to minors. Accordingly, we hold that the Board cor rectly interpreted Ark. Code Ann. § 26-57-203(11) to require cigarette retailers to sell face-to-face and such interpretation does not violate the dormant Commerce Clause. The decision of the circuit court is therefore reversed.
Circuit Court Reversed; Arkansas Tobacco Control Board Affirmed.
Brown, J., concurs.
Similarly, the cases cited by Sante Fe on the common usage of the phrase “over the counter” are all cases dealing with the sale of stocks or drugs.
Consequently, Santa Fe’s argument that the Board’s interpretation allows retail permit holders to ship cigarettes directly to consumers is unfounded. | [
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ROBERT J. GLADWIN, Chief Judge
| jAppellant Gregory Scott (Greg) appeals the July 10,2015 order of the Pulaski County Circuit Court, which divided the remaining money in the Jane B. Scott Family Trust (Trust) and found that Greg’s brother, appellee Walter Scott, while in violation of the in terrorem clause of the Trust, would not be penalized because Greg was also in violation of the clause. On appeal, Greg argues that the trial court erred in (1) denying his motion to deem facts admitted; (2) refusing to punish Walter for violating the in terrorem clause; and (3) awarding him only $11,750 for labor and materials. We affirm in part and reverse and remand in part.
Walter filed a petition for accounting against Greg on August 13, 2009, as co- trustee of the Trust, which had been established by their mother. He alleged that Greg had repeatedly made decisions regarding Trust assets without proper input or permission from him -as required by the Trust. Greg, responded with an emergency petition for sale of the 12family home, alleging that Walter had agreed to transfer the home to Greg in exchange for $130,000 from the estate, and Walter had received the money, and had cashed the check but would not sign the deed over to Greg. Greg ceased work on the house for a time but began improvements on it again without an agreement from Walter. He also claimed that Walter’s filing for an accounting was an adverse. action against the Trust, invoking the in terrorem clause, alleging that Walter already possessed all of the information on the Trust.
The clause states:
Should any person mentioned herein but excluded from distribution, or any beneficiary, including any beneficiary under powers of appointment exercised herein, become an adverse party in the administration of Grantor’s Estate or Trust, including the valuation and distribution of Grantor’s Estate, such person shall forfeit his or her entire interest and his or her issue’s interest in Grantor’s Estate or Trust inherited from Grantor, and such interest shall pass as part of the residue of Grantor’s Trust Estate; provided, however, that if such person is a beneficiary of the residue, his or her ' interest shall be divided proportionately among the other beneficiaries of the residue. This paragraph shall not be construed to limit the appearance by any beneficiary as a witness in any proceeding for the probate of Grantor’s Will or the administration of Grantor’s estate or Trust, nor to limit his or her appearance in any capacity in a proceeding for con- • struction of Grantor’s wishes.
An order was filed on March 7, 2011, wherein Greg and Walter agreed to sell the home; Greg would provide the accounting; Walter would review it and obtain his own accounting if necessary; both would provide proof of payments made to Taylor Galusha (Walter’s daughter and a beneficiary of the Trust); Greg would retain the right to attempt to collect his costs and labor for remodeling the house; and both would provide proof of their expenses.
Taylor moved to intervene as a necessary party. She was granted intervention by order filed December 9, 2011. She filed a complaint on December 16,2011, alleging that she was entitled to $50,000 under the Trust; that she wanted an accounting; that a] 3 declaration that the IOU she was forced to sign by Walter and Lani, his wife, was void; and that Walter should be removed as cotrustee.
On ■ March 9, 2012, Greg filed requests for admissions against Walter, and on that same date, Greg filed his second amended response and amended counterpetition, alleging that Walter had not paid the real property taxes on the family home and that Greg had paid $8000 for insurance, termite coverage, electricity, gas, and water. for the home since 2004. Greg also sought reimbursement for refurbishing/remodeling the family home, and he alleged that Walter had violated the in terrorem clause by filing an unnecessary petition for an accounting, alleging that the accounting petition was filed “solely as a pretext to litigate with less financially advantaged beneficiaries with the intent of holding them hostage with litigation until they settle under terms unpermitted by the Trust just to obtain funds they are entitled to.”
On April 2, 2012, Walter’s attorney filed a “Notation of Forwarding Plaintiffs Responses to Requests for Admission to Defendant’s Counsel,” stating that the responses were sent to Greg’s attorney, Su san Gunter, on that date. On October 27, 2014, an order for substitution was filed, substituting R. David Lewis for Susan Gunter as Greg’s attorney.
On January 16, 2015, Greg filed a motion to deem facts admitted, alleging that Walter’s failure to deny the requests for admissions deemed them admitted. He cited Duncan v. Olive, 2014 Ark. App. 152, 2014 WL 792030, and Hardesty v. Baptist Health, 2018 Ark. App. 731, 431 S.W.3d 327, both of which hold that it was not an abuse of discretion for the trial court to deem admitted the requests for admissions when the responses were not filed as required under the applicable rules of civil procedure. Walter responded that he had timely submitted |4his response to Greg and that Greg’s lawyer had received them. Greg replied that it was of no consequence whether his attorney had received them, it mattered only that Walter did not file his responses. The trial court filed an order on April 10, 2015, stating that the notice filed on April 2, 2012, in which Walter alerted the trial court that the responses had been served, complied with the filing notice required by the rules; thus, the motion to deem facts admitted was denied.
The trial began on April 13, 2015, but did not conclude until June 22, 2015. On May 1,2015, Greg filed a motion to remove Walter as cotrustee, alleging that he had violated his duty as trustee, placed his own interests above his duties as trustee, and that he thought Walter would continue to frustrate the intent of the trust. Attached to the motion were portions of- the' transcript from the partial trial held on April 13. On May 7, 2015, Walter filed a motion to strike, stating that “the pleading portion of this case was closed by the Court when this matter was set for trial on April 13, 2015.”
During the trial, Greg testified as follows:
They’re the receipts for the materials that I purchased to upgrade Oaklawn to get it in a sellable shape. I paid those myself out of my personal account. The approximate total of the expenses is $12,000. I installed a new stained glass door, tiled the bathrooms, replaced wallpaper and painted walls, ceilings, and cabinets, installed new countertops, sink, faucet, refitted the cabinets with new hardware, hinges and pulls, replaced the vinyl flooring with a ceramic tile floor, re-sheet rocked the bathroom, installed a new whirlpool, electrical work and plumbing. I paid $800 for the Jacuzzi tub. I installed a bathroom vanity, upgraded the lights on the ceiling and above the vanity with new light fixtures and installed a new toilet. I also added a new sink and toilet to the bathroom in the master bedroom. I put in a set of French doors. I also put in a deck ... I spent 465-470 hours on the house ... I charge twenty five dollars per hour for everything I do ... I was working on a Trust asset which was not in good enough shape to sell ... My labor is 470 hours at twenty-five dollars per hour which is somewhere right under $12,000. The materials I used on the house was approximately $12,000. The total for materials was $11,404.46.
LThe trial court’s order of July 10, 2015, recites the history of the case and sets forth the in terrorem clause. The order also lists the items placed in evidence by both parties, including that
Greg introduced copies of invoices from Home Depot and other places showing the amounts of money he had spent on Jane’s house as well as an exhibit showing bills he had paid for Jane’s house, including North Little Roek Electric, Arkla Gas, Central Arkansas Water, a termite control service, State Farm In surance, and a lawn maintenance service.
The trial court ruled that Taylor was to receive $13,000 from the remaining $126,761.73 left in the Trust and that she did not owe Walter any money. The court directed that the CPA bill of $3365 be paid; that Greg would receive credit for “the maintenance and upkeep on Jane’s house in the sum of $12,945.13.... Greg shall be given credit in the sum of $11,750 for labor and expenses on Jane’s house.” Walter was given credit for the $4000 he spent on his mother’s funeral. Finally, the trial court found that Walter had violated the in terrorem clause but that he “did not do so in order to hurt his brother, Taylor, or the Trust assets, so he will not be penalized for his violations.” The trial court held that neither Walter nor Greg abided by their mother’s wishes or the terms of the Trust, “so the in terrorem clause violations would apply to both Walter and Greg if the Court were going to enforce it.” The trial court ordered that the remaining money be divided between Walter and Greg and the estate closed.
Greg filed a motion for reconsideration on July 15,2015, and the trial court did not rule on it. Greg filed a notice of appeal on September 9, 2015. This appeal timely followed.
Ifil. Requests for Admissions.
The Arkansas Rules of Civil Procedure provide as follows:
All papers after the complaint required to be served upon a party or his attorney shall be filed with the clerk of the court either before service or within a reasonable time thereafter. The clerk shall note the date and time of filing thereon. However, proposed findings of fact, proposed conclusions of law, trial briefs, proposed jury instructions, and responses thereto may but need not be filed unless ordered by the court. Depositions, interrogatories, requests for production or inspection, and answers and responses thereto shall not be filed unless ordered by the court.
Ark. R. Civ. P. 5(c)(1) (2015).
Greg contends that the trial court erred in failing to deem facts admitted when Walter failed to file his responses .to Greg’s requests for admissions. The trial court’s order found sufficient compliance with the Arkansas Rules of Civil Procedure because, Walter’s counsel alerted the court and opposing counsel on April 2, 2012, that the responses had been served. Greg contends that nothing in Rule 36 of the Arkansas Rules of Civil Procedure, which governs requests for admissions, states that substantial compliance is sufficient. He cites Duncan, supra, and Har-desty, supra, in both of which this court held that it was not an abuse of discretion for the trial court-to deem admitted the requests for admissions at issue.
Our standard of review applicable in discovery matters is set forth as follows:
A trial court has broad discretion in matters pertaining to discovery, and the exercise of that discretion will not be reversed by the appellate court absent an abuse of discretion that is prejudicial to the appealing party. Deering v. Supermarket Investors, Inc., 2013 Ark. App. 56, at 7, 425 S.W.3d 832, 836. To have abused its discretion, the trial court must have not only made an error in its decision, but also must have acted improvidently, thoughtlessly, or without due consideration. Id.
Hardesty, 2013 Ark. App. 731, at 4-5, 431 S.W.3d at 330.
17Walter contends that there was no abuse of discretion. We agree; The trial court duly considered that Greg had an opportunity to cross-examine Walter re garding the requests for admissions; the trial court, stated in a footnote “that the bulk of the Requests have been admitted by the Plaintiff”; and the trial court considered that Walter’s notice of submission of responses filed on April 2, 2012, alerted the court and opposing counsel that responses had been served on all counsel of record. Accordingly, we hold that the trial court’s finding that Walter had complied with the Arkansas Rules of Civil Procedure was not an abuse of discretion.
II. In Terrorem Clause
Our standard of review in trust cases was set forth as follows in our recent case Holliman v. Johnson, 2016 Ark. App. 39, at 6-7, 480 S.W.3d 903, 907-08:
The exclusive jurisdiction in cases involving trusts, and the construction, interpretation, and operation of trusts are matters within the jurisdiction of the courts of equity. Rose v. Rose, 2013 Ark. App. 256, 427 S.W.3d 698; Winchel v. Craig, 55 Ark. App. 373, 934 S.W.2d 946 (1996). Arkansas appellate courts have traditionally reviewed matters that sounded in equity de novo on the record with respect to factual and legal questions. Rose, supra; In re Ruby G. Owen Trust, 2012 Ark. App. 381, 418 S.W.3d 421. A finding by a circuit court in an equity case will not be reversed unless it was clearly erroneous. Id.
Cason v. Lambert, 2015 Ark. App. 41, at 4, 454 S.W.3d 250, 253-54
[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 viewing all the evidence is left with a definite and firm conviction that a mistake has been committed. Id. We also give due deference to the superior position of the chancellor or circuit • court to view and judge the credibility of the witnesses. Id.
In re Estate of Thompson, 2014 Ark. 237, at 6, 434 S.W.3d 877, 881
IsGreg claims that it was error for the trial court to not punish Walter because he violated the in terrorem clause. The trial court determined that, because Walter did not violate the clause in order to hurt Greg, Taylor, or the Trust’s assets, he would not be punished. Further, the trial court found that Greg did not abide by the terms of the Trust. Greg argues that, during cross-examination, Walter admitted that, when he refused to give Taylor the money she asked for unless she gave him an IOU, he became an “adverse party” to the Trust. Greg argues that the trial court added a condition to the in terrorem clause that did not exist—that in order to forfeit one’s interest, the trustee had to violate the in terrorem clause in order to hurt his brother, Taylor, or the Trust assets. Further, Greg contends that the record does not support the trial court’s finding that Greg did not abide by his mother’s wishes or the terms of the Trust. He argues that Walter never accused him of violating the in terrorem clause and nothing in the record showed that he had violated the terms of the Trust. Therefore, Greg insists that the clause should be enforced against Walter.
Walter contends that his actions regarding a possible violation of the in tenvrem clause were predicated on Greg’s actions. Based on our de novo review, we hold that the trial court’s finding regarding the in terrorem clause is not clearly erroneous. Greg’s actions in contesting the request for an accounting, and the characteristics of the lawsuit that were conveyed -in the pleadings and during the trial, support- the trial court’s determination that neither Walter nor Greg abided by their mother’s wishes or the terms of the Trust. Giving due deference to the trial court’s .superior position to view and judge the credibility of the witnesses, we affirm the trial court’s decision to not enforce the in terrorem clause against Walter.
13III. Labor and Expenses
Greg contends that the uncontroverted proof was that he spent labor valued at $11,750, and materials in the amount of $11,404.46. But, the trial court made an award for labor and • materials' of only $11,750. He 'argues that there has to be evidence to support an award or the award should be set aside. Walter contends that the value of any work done by Greg to the Trust property is within the sound discretion of the trial court based on the evidence presented. He submits that there was no clerical error. He contends that the trial court provided Greg with adequate compensation for his labor and expenses.
We disagree. Arkansas statutory law provides explicitly for a trustee’s reimbursement of expenses, providing that “a trustee is entitled to be reimbursed out of the trust property ... for reasonable expenses that were properly incurred in the administration of the trust[.]” Ark. Code Ann. § 28—73—709(a)(1) (Repl. 2012); see also Rose, supra. Further,
[i]n an appeal from a bench trial, where we are unable to determine the basis for the trial court’s award of damages, we may remand for the limited purposes of clarifying the method used to determine damages and to correct any erroneous calculations.; See Glover v. Woodhaven Homes, Inc., 346 Ark. 397, 57 S.W.3d 211 (2001).
Pruitt v. Dickerson Excavation, Inc., 2010 Ark. App. 849, at 8, 379 S.W.3d 766, 772. The trial court awarded the uncontrovert-ed amount submitted by Greg for his labor costs but ignored the uncontroverted amount submitted for reimbursement for materials. Without an explanation of the trial court’s reasoning, and in light of the trial court’s reference to expenses incurred at Home Depot, we cannot know whether the court, intentionally awarded the exact labor costs but excluded the entire amount of materials when the court awarded $11,750 for “labor and expenses.” Accordingly, we reverse and remand for further consideration of the award for. “labor and expenses.”
11 (Affirmed in part; reversed and, remanded in part.
HOOFMAN and BROWN, JJ., agree. | [
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Annabelle Clinton Imber, Justice.
This is an appeal from .an order by the circuit court denying class certification under Rule 23 of the Arkansas Rules of Civil Procedure. The appellants in this appeal are Barbara Mittry, who is the personal representative of the Estate of F.K. “Bill” Mittry, deceased, and Joseph fiarvey, as representatives in their individual capacities and of all others similarly situated. The appellee is Bancorpsouth Bank, formerly known as First United Bank (Stuttgart). On April 5, 2001, Bill Mittry filed a class-action complaint against the appellee for breach of fiduciary duty, gross negligence, and breach of contract as a result of a separate lawsuit initiated and pursued by the appellee at a time when it served as trustee in connection with the issuance and sale of bonds to the 'public to help finance improvements by four development districts in the city of Maumelle (the “Maumelle Bonds”). First United Bank v. Phase II, et al., 347 Ark. 879, 69 S.W.3d 33 (2002). According to the allegations in the complaint, which Harvey later joined, the appellee’s pursuit of the litigation caused a decrease in the secondary market sale price that appellants received when they sold their bonds, thereby causing them to sustain a financial loss. The appellants sought class certification of a class ofMaumelle bondholders “who (a) purchased their bonds before April 5, 1998, and (b) sold their bonds between April 5, 1998 and October 7, 2002.” In its answer, the appellee denied any liability to the bondholders.
Shortly after the filing of the complaint, Mittry filed a motion to certify class and the parties proceeded with discovery. In late 2003, the appellants amended their complaint and motion to certify the class. On April 8, 2004, after a hearing on the issue of class certification, the circuit court denied the appellants’ motion for class certification. That ruling is the subject of this interlocutory appeal. We review a circuit court’s denial of class certification under an abuse-of-discretion standard. Fraley v. Williams Ford Tractor & Equip., 339 Ark. 322, 5 S.W.3d 423 (1999); USH Check Cashers of Little Rock, Inc., v. Island, 349 Ark. 71, 76 S.W.3d 243 (2002).
The crux of the appellants’ appeal concerns whether the proposed class satisfies the predominance, numerosity, and superiority requirements under Ark. R. Civ. P. 23 (2004). In certifying a class action under Ark. R. Civ. P. 23, the circuit court must certify that the following conditions are satisfied:
(1) The class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of a class, and (4) the representative parties will fairly and adequately protect the interest of the class. Ark. R. Civ. P. 23(a). Additionally, the court must find that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Ark. R. Civ. P. 23(b).
Fraley v. Williams Ford Tractor & Equip., 339 Ark. at 333, 5 S.W.3d at 430. Here, the circuit court’s order denying class certification states in relevant part:
[T]he questions of law and fact common to the members of the proposed class do not predominate over any questions affecting individual members, and a class action is not superior to other methods for the fair and efficient adjudication of the controversy.
Although facts and legal issues may be common to the class, the heart of Plaintiffs’ claim is based upon the contention that a court action by the defendant caused low bond prices and a diminished sales price. The proposed class consists of approximately nineteen (19) sales of unrated bonds in odd lots by brokers in over the counter transactions during a period of changing interest rates. Given the individual question of causation relative to these sales, joinder and individual determination would be the superior method of achieving fair adjudication. The numerosity requirement is not satisfied and joinder is not impracticable.
The appellants appeal the circuit court’s order, arguing that the circuit court abused its discretion when it determined that the predominance, numerosity, and superiority factors were not satisfied. We affirm the circuit court.
As stated above, Rule 23(b) provides that an action may be maintained as a class action if the prerequisite requirements of Rule 23(a) are satisfied, and the court finds that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members” and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Ark. R. Civ. P. 23(b) (2004) (emphasis added). With regard to the predominance requirement of Rule 23, we must decide if the issues common to all plaintiffs “predominate over” the individual issues. Baker v. Wyeth-Ayerst Laboratories, 338 Ark. 242, 992 S.W.2d 797 (1999).
In concluding that the predominance factor was not satisfied in the Baker v. Wyeth-Ayerst Laboratories case, we noted the admonition by the Sixth Circuit Court of Appeals that a court should “ ‘question the appropriateness of a class action’ where ‘no one set of operative facts establishes liability, no single proximate cause equally applies to each potential class member and each defendant, and the individual issues outnumber common issues.’ ” Baker v. Wyeth-Ayerst Laboratories, 338 Ark. at 247, 992 S.W.2d at 800. (citing Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988)). Similarly, in Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991), class certification was proper because the common issues of the defendant’s conduct and causation predominated over and could be resolved prior to addressing the individual and less difficult issues of damages and injuries. This court reiterated in Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995), that a case with “numerous individual issues” can be better resolved on a case-by-case basis.
In contrast, the claim of misrepresentation was the “common linchpin” of every class member’s case in BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000), and the resolution of that issue predominated over potential individual issues. Moreover, in SEECO, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997), because the alleged scheme to defraud royalty' owners was the “overarching issue” and the starting point in resolving the matter, there was no abuse of discretion by the circuit court in certifying the class. Once again, the predominance issue was satisfied in F & G Financial Serv., Inc. v. Barnes, 349 Ark. 420, 82 S.W.3d 162 (2002), where the “overarching common questions” were whether the check casher’s transactions were loans with interest accruing and whether those transactions violated the Arkansas Constitution. Finally, in Williamson v. Sanofi Winthrop Pharm., 347 Ark. 89, 60 S.W.3d 428 (2001), we concluded that class certification is not appropriate when “the questions on which the case turns” are not common to each class member.
In the instant case, the “thrust” of the appellants’ complaint is that the appellee’s actions in pursuing the litigation in Pulaski County Chancery Court adversely impacted and depressed the secondary market prices that the appellants received for their Maumelle bonds and thereby caused their losses. On appeal, the appellants contend that there are common questions of fact and law in this case relating to: (1) the propriety of the actions and decisions taken by the appellee in deciding to file and prosecute the earlier lawsuit, such actions and decisions affecting the financial standing of each class member; (2) whether the appellee had contractual obligations to the bondholders and whether those obligations were breached; and (3) whether the appellee, in taking its actions and making its decisions, committed gross negligence and breached its fiduciary duties while acting as trustee for the bond issues. Even under the very categories listed by the appellants, however, individual issues predominate over the issues common to the class as the appellants would be required to establish that the appellee’s conduct was the proximate cause for the specific low price received by each member of the proposed class. In other words, there would have to be a review of each class member’s individual situation concerning the sale of his or her Maumelle Bonds. Because the over-the-counter market for municipal bonds is not a centralized exchange and offers no specific “market price” for such bonds, the price a class members obtained for his or her bonds would vary based upon at least eight factors that are unique to each seller’s transaction: (1) interest rates, (2) duration of marketing, (3) block size ofbond to be sold, (4) U.S. Treasury Bond rates, (5) the rating of the Maumelle Bonds, (6) publicity, (7) the broker, and (8) the seller.
The appellants state that the appellee’s causation argument is a “red herring.” They cite F & G Financial Serv., Inc. v. Barnes, supra, for the proposition that “challenges on the statutes of limitations, fraudulent concealment, releases, causation, or reliance have usually been rejected and will not bar predominance satisfaction because these issues go to the right of the class member to recover, in contrast to the underlying issues of the defendant’s liability.” F & G Financial Serv., Inc. v. Barnes, 349 Ark. at 432, 82 S.W.3d at 169 (citing SEECO, Inc. v. Hales, 330 Ark. at 413, 954 S.W.2d at 240). Their reliance on F & G Financial Serv., Inc. v. Barnes, supra, however, is misplaced. As mentioned earlier, in the F & G Financial Services case, we found that there were “overarching common questions” concerning whether the check casher’s transactions were loans with interest accruing and whether those transactions violated the Arkansas Constitution. The proposition cited by the appellants merely reaffirms that individual issues and defenses regarding the recovery of individual members cannot defeat class certification where there are common questions con cerning the defendant’s alleged wrongdoing which must be resolved for all class members. F & G Financial Serv., Inc. v. Barnes, 349 Ark. at 432, 82 S.W.3d at 169. (emphasis added). In the absence if such common questions, the F & G Financial Services case is not apposite.
The class in the instant case, as defined by the appellants, must consist of persons who sold their bonds over a particular four-year period. Furthermore, it is the appellee’s “actions and decisions affecting the financial standing of each class member” that the appellants propose as a common question. The circuit court correctly noted in its order that such questions center around the contention that the appellee’s participation in litigation caused low bond prices and a diminished sales price. As such, individual issues predominate over the issues common to the class because the appellants would be required to establish that the appellee’s conduct was the proximate cause for the specific low price received by each member of the proposed class.
For the above-stated reasons, we cannot say that the circuit court abused its discretion in ruling that the predominance requirement of Ark. R. Civ. P. 23(b) has not been satisfied. Because the circuit court’s order denying class certification can be affirmed solely on the predominance factor, we need not address the numerosity and superiority requirements under Rule 23(a).
Affirmed.
Gunter, J., not participating.
Mittry and Harvey bought certain Maumelle Bonds that they subsequently sold.
While the circuit court’s order reflects specific findings on the predominance, numerosity, and superiority requirements, the parties disagree as to whether the order includes a finding on the commonality requirement. Moreover, the order is completely silent on the requirement of typicality. In the instant appeal, however, the appellants do not contend that the circuit court’s order should be reversed because the court failed to set forth specific findings in regard to the Rule 23 elements following a request for specific findings of fact and conclusions of law under Ark. R. Civ. P. 52 (2004).
Although it is improper to consider the merits of the underlying lawsuit in the context of class certification, consideration of the elements of the underlying claim is important to determine whether any questions are common to the class and whether those questions will resolve the issue. Williamson v. Sanofi Winthrop Pharm., supra. | [
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DAVID M. GLOVER, Judge
_JjBy order entered April 7, 2016, our supreme court granted Patricia Garrett’s motion for belated appeal, and this appeal from the termination of her parental rights to her daughter, K.C. (d.o.b. 8-25-2010), followed. She challenges the sufficiency of the evidence supporting the termination, and she also contends she was not provided with adequate accommodation under the Americans with Disabilities Act (ADA) when she was denied more time to complete services. We affirm.
K.C. was taken into the custody of the Arkansas Department of Human Services (DHS) in July 2014. The trial court found probable cause to continue temporary custody following a July 29, 2014 hearing, and then, following an August 25, 2014 adjudication hearing, the trial court found the child was dependent-neglected. The trial court expressed its concern about Garrett’s drug use and ordered her to cooperate with DHS and undergo a psychological evaluation. Garrett’s refusal to submit to DHS drug screens and undergo an | intensive outpatient drug-treatment program was a continuing problem throughout the case. The goal of the case was changed to termination following a June 22, 2015 permanency-planning hearing. DHS filed a motion to terminate Garrett’s parental rights on July 9, 2015, and the termination hearing was held over two days—September 21, 2015, and October 26, 2015. The order terminating Garrett’s parental rights was entered November 9, 2015.
At the termination hearing, Dr. Paul Deyoub, a forensic psychologist, testified he had evaluated Garrett; she was forthright and cooperative; she had a history of substance abuse and major depression; and her test results demonstrated “very significant depression, personality problems,' substance abuse, difficulty coping, great deal of dependency, feelings of inadequacy, history of unstable abusive relationships, multiple hospitalizations for depression, major depression, methamphetamine abuse and alcohol abusé throughout her adult life.” He explained that for her to be an adequate parent, she would have to completely recover from her substance-abuse issues; she would require individual counseling, medication management, and ongoing outpatient treatment for substance abuse; and she would need to be observed for six months to a year to make sure she was no longer drug dependent, no longer needed in-patient mental health treatment, and could avoid abusive relationships. He further explained the child had observed Garrett being beaten by the child’s father. He stated if Garrett’s only problem were major depression, it could be properly managed and she could care for the child, but she also suffered from dependent-personality issues, substance-abuse problems, and poor relationship choices, which made parenting difficult.
|sThe trial court asked Garrett’s counsel if she was still refusing DHS drug screens. Counsel explained she had submitted to drug screening at the Counseling Clinic and she had one test through DHS very early on that was positive and then had refused others administered by DHS.
Kenneth Arnold, a substance-abuse coordinator and counselor, testified his therapeutic relationship with Garrett began on July 13,2015. He explained she was very attentive and participatory in group; she understood the necessary changes she has to make; she tested positive for methamphetamine when she first came into the program; she was screened every Monday and had received seven tests; and with the exception of the first test, the results had been negative. As of the hearing date, she had completed thirty-two hours of intensive outpatient treatment. Arnold described Garrett’s drug use as “moderate,” explaining that it had been severe in the past to the point she could not function. He stated she needed to continue the recovery process, but she had maintained sobriety during the three months she had been in the program. He expressed his belief she could maintain sobriety.
Kathleen Armstrong, an adoption specialist for DHS, testified she ran an adoption match for K.C. that came back with 162 possible adoptive family placements, and she felt she would be highly successful in identifying an appropriate family for the child, despite the child’s problems with aggression, self-abuse, temper tantrums, arid lying.
Boyce Barger, the child’s counselor, testified he had been seeing the child since the fall of 2014; the behaviors described by the adoption specialist had been treated with behavior-modification approaches; and there had been a dramatic reduction in the behavior. |4He attributed the results to the stability in the foster parents’ home. He said he would diagnose the child with adjustment disorder, anxiety, and neglect. He stated the child was very attached to her mother, spoke of her with affection, and wanted to live with her. He expressed his belief that if the child were moved into an adoptive home, her behaviors would restart and need to be addressed again. However, he also stated the child needed to be in a home that provided a very well-defined and appropriate structure with predictable outcomes and consequences for appropriate and inappropriate behavior; and she would need affection. He acknowledged he had not observed Garrett and the child interact, and he would not know if the child had an attachment disorder or like disorder with her mother unless he was able to observe them interact. Barger explained that there were no hard and fast lines where a patient is required to comply with a case plan before beginning family therapy; family therapy would be counterproductive when the case seems about to fall apart because a child needs permanency; and there was never any discussion with DHS about Garrett’s progress and the need for family therapy.
Craig Jones, Garrett’s licensed certified social worker and outpatient therapist, testified that her compliance had been bumpy; that it went from semicompliant to a long drought of noncompliance to improved compliance. He stated he began to see improved compliance around July 2015, which coincided with her admission into the intensive outpatient drug-treatment program. He explained that Garrett completed parenting and anger management early on but around January 2015, she became inconsistent with services; that she missed her initial intake evaluation for IOP services and then missed several counseling appointments; that she missed her psychological evaluation and a psychiatric Revaluation; that Garrett had not resumed her medication regimen as of August 30; and that he believed it was because she was without funds to pay for the medication (lithium). He said he did not recommend an increase in visitation because more progress needed to be made. He agreed with Dr. DeYoub’s opinion that she could potentially parent the child if she completed long-term drug-and-alcohol treatment and got her medication. He stated Garrett had expressed significant doubts about the validity of the drug tests performed by DHS; she agreed to take drug tests administered by other people, just not DHS; he believed her refusal to take the DHS drug test arose out of a feeling of powerlessness, things out of her control, and feeling threatened; and he attributed it to her mental illness, domestic violence, and her child being, removed. He stated she was beginning to overcome that sense of powerlessness; she needed to continue counseling, maintain her sobriety and medication and appointments; and he believed she could demonstrate her stability and willingness to improve with additional time. He acknowledged there were two or three times-over the course of the case that medication compliance became an issue; failure to maintain her medication regimen could have a profound impact upon her; lithium has a quick washout time in the sense that it does not take long to leave a person’s system and reduce its effectiveness; her severe depression returned without medication for a period of time; she has- issues dealing with stress; she is' redirectable and can calm- down with support; her stress-management capacities are somewhat limited; she shuts down and is tearful when stressed; there was one point when she stopped coming to see him because she believed that reunification was hopeless; she became reinvigorated and was doing what she was supposed to do to reunify with her child; some of the missed appointments at the beginning of the |Ryear were because of weather issues; and her medication regimen currently did not include the use of lithium. He said he believed increased visitation could start somewhere around December, and he thought six more months were needed to get to a trial home visit.
Erin Descoteaux, caseworker, testified she was assigned to the case at the end of August 2015; she had reviewed the file and ascertained that Garrett’s progress with the case plan was as follows: she completed parenting and anger-management classes; she participated in a drug-and-alcoho'l assessment as well as a psychological evaluation; she participated in intensive outpatient drug treatment and was still in counseling at the Counseling Clinic; she had her own home; she had Social Security income; she attended AA/NA meetings; and since the last hearing in September she had taken two drug screens for DHS, both of which had been negative. She stated the petition to terminate was filed on July 9, 2015.-She explained Garrett did not begin intensive outpatient-drug treatment until July 13, 2015. She stated counseling and outpatient drug treatment were the only two services that were not completed prior to the filing of the petition to terminate but that those-were the two most significant areas of concern. She said Garrett had appropriate housing and had been appropriate at visits with the child throughout the case, but she had not paid any child support. She stated she was aware Garrett was ■ submitting to drug screens at Counseling Clinic and she trusted those test results. She stated Garrett has mental-health issues. She acknowledged that DHS is subject to the Americans with Disabilities Act; that Garrett-had completed most of her services but they needed to see a long period of stability in her services, sobriety from all substances, stable mental health, and maintenance of her medications and counseling. She explained they had asked Garrett for names of relatives 17who might be able to take the minor child, and she provided her adult son’s name; there were no problems with his background checks, but he lived with her and they did not know if' he had the means to support the child" on his own. She acknowledged the child receives Social Security benefits from her mother, and those benefits would be considered when assessing "whether her brother could financially support her.
Garrett testified she visits with her child every Friday; she missed one visit because she was incarcerated for failing to appear on a shoplifting charge; she was not able to consistently participate in services because of transportation issues; she did not realize DHS would provide transportation; and she did not want to- start 'services if she could not be consistent and- did want to rely on other people two and three times a week. She explained she refused to take drug screens for DHS because she lost power in every part of-her life and the one thing she could grasp onto was her resent ment of DHS for doing this; it was not until she realized her child could be taken away forever that, she realized what she was doing was wrong; she realizes it was her fault the child was taken into care, not DHS’s; she has accepted responsibility, and it has helped her in counseling; she was more than willing to move out of her house so that her twenty-one-year-old son could have her daughter with him; and if things go well, and she is able to move back in, her son could be her support system. She stated her father was helping her son get a truck; she has family support; she speaks with her dad every day; and her sister originally took the child but brought her back when she got mad at Garrett because Garrett told her she was “going to beat her ass if she didn’t quit acting the way she was.” She said she got rides from DHS employees during the day, but did not realize they would assist her after hours until she learned of that service | Rat a staffing. She said she provides for herself financially from her disability and by selling items on eBay; she might have joked about getting money another way, but she was being sarcastic. She acknowledged she had violated the court’s order by refusing to submit to drug screens for DHS. She also acknowledged her son was taken from her care as a child; her mother had guardianship of him; and she got him back. She stated if the court gave her more time to get K.C. back, she would continue to cooperate; she feels she is making progress with Craig Jones; she also liked working with Ken Arnold; she has not used drugs for a while; and there was a time her services were delayed because Counseling Clinic burned and all the records had been lost.
During closing arguments, Garrett’s counsel commented, ‘Tour honor we did bring to your attention the Americans with Disabilities Act. While I agree that we did not make a request for reasonable accommodations to the Department, I do not think the Department can provide us with the one accommodation my client needs and that is a greater amount of time to complete services than the ordinary individual Would require. Only you' can order that accommodation and that is what we are requesting.”
For her first point of appeal, Garrett contends the trial court erred in granting the petition to terminate her parental rights. We disagree.
The trial court terminated the rights of both parents. This appeal involves only the mother. In pertinent part, the trial court found the following statutory grounds had been proved: 1) that the child had been adjudicated dependent-neglected and continued out of the parent’s custody for twelve months, and despite meaningful efforts by DHS to rehabilitate and correct the conditions that caused removal, those conditions had not yet | abeen remedied by the parent; 2) that the child had lived outside the parent’s home for.a period of twelve months, and the parent willfully failed to provide significant material support in accordance with the parent’s means; and 3) that other factors and 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 was contrary to the juvenile’s health, safety, and welfare and that, despite the offer of appropriate family services, the parent had manifested the incapacity and' indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevented placement of the juvenile in the parent’s custody. In addition, the trial court found that termination was in the child’s best interest, considering the likelihood the juvenile would be adopted and the potential harm to the health and safety of the juvenile caused by returning her to the parent’s custody.
Our review of cases involving the termination of parental rights is de novo. Harbin v. Arkansas Dep’t of Human Servs., 2014 Ark. App. 715, 451 S.W.3d 231. A trial court’s termination of parental rights must be based on factual findings proven by clear and convincing evidence. Basham v. Arkansas Dep’t of Human Servs., 2016 Ark. App. 232, 490 S.W.3d 330. We will not reverse a trial court’s ruling as to termination unless it is clearly erroneous. Id. In order to terminate parental rights under Arkansas law, a trial court must find that at least one statutory ground for termination has been established and that termination would be in the child’s best interest. Id. In determining the best interest of the child, the court must take into consideration the likelihood of adoption and the potential harm to the health and safety of the child that would be caused by return to custody of the parent. Id.; Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2015). Credibility determinations | inare left to the fact-finder. Harbin, supra. Only one statutory ground is necessary to terminate parental rights. Vail v. Arkansas Dep’t of Human Servs., 2016 Ark. App. 150, 486 S.W.3d 229.
Here, the trial court found as one statutory ground that KC. had been adjudicated dependent-neglected and continued out of Garrett’s custody for twelve months, and despite meaningful efforts by DHS to rehabilitate and correct the conditions that caused removal, those conditions had not yet been remedied by the parent. Another ground the trial court found was that other factors and issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrated placement of the juvenile in the custody of the parent was contrary to the juvenile’s health, safety, and welfare and that, despite the offer of appropriate family services, the parent had manifested the incapacity and indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevented placement of the juvenile in the parent’s custody.
We are not left with a definite and firm conviction the trial court made a mistake with respect to either ground. As previously mentioned, proof of only one ground is sufficient to terminate, making it unnecessary to discuss the remaining ground found by the trial court involving lack of material support. As noted by the trial court in its order, K.C. was removed from Garrett on July 25, 2014; Garrett tested positive in her first court-ordered drug screen, and then-refused to participate in the remaining DHS drug screens ordered by the court; she did not participate in DHS drug screening until October 2015, which even though it was negative, was performed after the petition to terminate had been filed; drug screens that are refused are deemed to be positive; Garrett’s therapist, Craig Jones, testified In he could not recommend increased supervised visitation until he had seen months of progress; and Dr. Deyoub opined that Garrett’s treatment needed to continue for a minimum of six months and as long as a year to prove she was stable, compliant with mental-health treatment, and not relapsing into substance abuse. The court found it unreasonable to have the child wait another six months to a year to see if Garrett was able to maintain her sobriety and her mental health. The trial court further found that at the time the child was removed, a hair-follicle test was positive for methamphetamine; that Garrett also tested positive for methamphetamine; that Garrett had refused the random DHS drug testing; that she only began outpatient drug treatment after the termination petition had been filed; that during the period from January 2015 to mid-July 2015, she participated in no drug treatment or NA/AA meetings, and only recently began complying with the medication-management regimen outlined by her psychiatrist; that K.C.’s behavioral issues were related to the neglect she suffered from the mother; that K.C.’s behavior had improved dramatically with appropriate behavior modification and stability received in foster care; and that no family-therapy sessions were undertaken because it would be counterproductive to do so when Garrett was not participating in the case plan and the case was about to fall apart, as explained by Mr. Barger. The trial court determined that Garrett’s lack of participation in services and consistent treatment indicated her incapacity or indifference to remedying the factors that prevented K.C,’s placement with her.
With respect to the trial court’s finding that it was in the child’s best interest to terminate Garrett’s rights, the trial court noted Cathleen Armstrong testified 162 families were interested in adopting a child with similar characteristics, and Armstrong anticipated | 12being highly successful in finding a match between the child and an adoptive family. The trial court further relied upon the testimony of Des-coteaux and Dr, Deyoub in demonstrating that the child would be at risk of potential harm if she were returned to Garrett. Again, we are not left with the conviction that the trial court made a mistake.
The intent of our termination statute is to provide permanency in a minor child’s life in circumstances where returning the child to the family home is contrary to the child’s health, safety, or welfare, and where the evidence demonstrates that the return cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. Harbin, supra, Ark. Code Ann. § 9-27~341(a)(3). The child’s need for - permanency and stability may override the parent’s request for additional time to improve the parent’s circumstances. Id. The issue is whether the- parent has become a stable, safe parent able to care for the child. Id, The court may consider the parent’s past behavior, and even full compliance with the case plan is not determinative. Id.
Garrett appears to have finally realized the seriousness of the case when the goal was changed to termination—July 2015. While from that point forward she seems to have applied herself to remedying her substance abuse and mental-health issues, her eleventh hour efforts were simply too late. See, e.g., Villanueva v. Arkansas Dep’t of Human Servs., 2014 Ark. App. 401, 439 S.W.3d 65. There was testimony from Dr. Deyoub that another six months to a year would be necessary to make sure she was no longer drug-dependent, could stay out of mental hospitals, and could avoid abusive relationships. The trial court was justified in balancing all of those factors against the child’s need for stability and permanence. Garrett has not convinced us that the trial court clearly erred in terminating her parental rights.
|1sFor her remaining point of appeal, Garrett contends the trial court failed to provide an adequate accommodation under the Americans with Disabilities Act when it refused to allow her more time to complete services. We do not address the issue because it was not preserved for our review. As demonstrated earlier in this opinion, Garrett never properly developed this ADA argument before the trial court nor did she receive a ruling on the issue. She is therefore prevented from raising it on appeal. Woodall v. State, 2011 Ark. 22, 376 S.W,3d 408. .
Affirmed.
HARRISON and VAUGHT,-JJ., agree. | [
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Annabelle Clinton Imber, Justice.
On June 2, 2000, Appellant Kirby Arbaugh, an employee of AG Processing, Inc., was shocked with 440 volts of electricity when he attempted to turn on the electrical switch to a feed-bag line. Appellees AG Processing, Inc. and Specialty Risk Services accepted the June 2 incident as compensable and paid related medical benefits. Arbaugh claimed that he sustained a compensable organic-brain injury, or in the alternative, a compensable psychological injury. Appellees controverted these claims and asserted that Arbaugh’s problems were psychological and preexisted the injury. Furthermore, they contended that his problems were not causally related to the June 2 compensable injury.
A hearing was conducted on March 20, 2002, before the administrative law judge (ALJ). In an opinion and order dated June 18, 2002, the ALJ determined that Arbaugh failed to prove by a preponderance of the evidence that his cognitive dysfunction and psychological problems were causally related to the June 2 incident; that Arbaugh failed to prove that his cognitive dysfunction and psychological problems arose out of and in the course of his employment; that Arbaugh failed to establish by a preponderance of the evidence the elements necessary to prove a compensable organic-brain injury; and that Arbaugh failed to establish by a preponderance of the evidence the elements necessary to prove a compensable psychological injury.
The Arkansas Workers’ Compensation Commission (“Commission”) affirmed and adopted the ALJ’s opinion, and Arbaugh then appealed to the Arkansas Court of Appeals. The Court of Appeals affirmed the Commission, holding that there was substantial evidence to support the Commission’s finding that Arbaugh’s problems were not causally related to the June 2 incident. Three dissenting judges would have reversed and remanded and instructed the Commission to enter an award of benefits for Arbaugh’s organic-brain injury. Arbaugh v. AG Processing, Inc., 86 Ark. App. 303, 184 S.W.3d 53 (2004). We granted a petition for review pursuant to Rule l-2(e) of the Arkansas Rules of the Supreme Court. Accordingly, we consider the case as though it had been originally filed in this court. Pifer v. Single Source Transp, 347 Ark. 851, 69 S.W.3d 1 (2002).
On appeal, this court views the evidence and all reasonable inferences therefrom in the light most favorable to the Commission’s decision and affirm that decision when it is supported by substantial evidence. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996) (citing Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158 (1996), and Plante v. Tyson Foods, Inc., 319 Ark. 126, 890 S.W.2d 253 (1994)). It is for the Commission to determine where the preponderance of the evidence lies; upon appellate review, we consider the evidence in the light most favorable to the Commission’s decision and uphold that decision if it is supported by substantial evidence. Georgia Pacific Corp. v. Ray, 273 Ark. 343, 619 S.W.2d 648 (1981). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Williams v. Prostaff Temporaries, 336 Ark. 510, 988 S.W.2d 1 (1999). There may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). It is exclusively within the province of the Commission to determine the credibility and the weight to be accorded to each witness’s testimony. Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989). 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 conclusions arrived at by the Commission. Freeman v. Con-Agra Frozen Foods, supra; White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999).
In addressing Arbaugh’s claims below that he suffered from both a psychological injury and an organic-brain injury, the ALJ noted that claims for mental injury or illness are governed by Ark. Code Ann. § 11-9-113(a) & (b) (Repl. 2002); whereas, organic-brain injury claims are treated as ordinary accidental-injury claims and governed by Ark. Code Ann. 11-9-102(4)(A)(i) (Repl. 2002). Section 11-9-113(a) sets forth the requirements for proving compensability of a “mental injury or illness”:
(a)(1) A mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee’s body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime of violence.
(2) No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychiatrist or psycholo gist and unless the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.
Ark. Code Ann. § ll-9-U3(a)(l)(2). Under section 11 — 9—113(b)(1), the employee may only recover twenty-six (26) weeks of disability benefits for a claim based on a mental injury or illness. In the case of an accidental-injury claim, section ll-9-102(4)(A)(i) defines a “compensable injury” as
[a]n accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic apphances, including eyeglasses, contact lenses, or hearing aids, arising 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.
Ark. Code Ann. § ll-9-102(4)(A)(i). With regard to Arbaugh’s organic-brain injury claim, the ALJ concluded that the following requirements must be satisfied to establish such an injury:
(1) proofby a preponderance of the evidence of an injury arising out of and in the course of employment (see, Ark. Code Ann. § ll-9-102(4)(A)(i) (Cumm. Supp. 1997); Ark. Code Ann. § 11-9-102(4)(E)(i) (Cumm. Supp. 1997); see also, Ark. Code Ann. § ll-9~401(a)(l) (Cumm. Supp. 1997));
(2) proofby a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death (see Ark. Code Ann. § ll-9-102(4)(A)(i) (Cumm. Supp. 1997));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing injury (see, Ark. Code Ann. § U-9-102(4)(D) (Cumm. Supp. 1997));
(4) proofby a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence (see, Ark. Code Ann. § 11 -9-102(4) (A) (i) (Cumm. Supp. 1997)).
As summarized earlier, the ALJ found, and the Commission affirmed and adopted, that Arbaugh failed to prove by a preponderance of the evidence that his cognitive dysfunction and psy chological problems were causally related to the June 2, 2000 incident or that they arose out of and in the course of his employment. The ALJ further found that Arbaugh failed to establish by a preponderance of the evidence that he had sustained a compensable organic-brain injury or a compensable psychological injury.
For his sole point on appeal, Arbaugh argues that no substantial evidence supports the Commission’s finding that his organic-brain problems were not a result of the electrical shock he received at work on June 2, 2000. To reiterate, in determining the sufficiency of the evidence to sustain the findings of the Commission, we must view the evidence in the light most favorable to the Commission’s decision and its decision must be upheld if it is supported by substantial evidence. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). In making our review, we recognize that the Commission, and not this court, determines where the preponderance of the evidence lies. Georgia Pacific Corp. v. Ray, supra.
The medical evidence supporting the Commission’s findings on the organic-brain- injury issue may be summarized as follows. Dr. John Towbin, a seizure-disorder specialist, testified that Arbaugh was referred to him because he was having “seizure-like events.” According to Dr. Towbin, the occurrence of a seizure involves abnormal activity in the cortex and creates a wave form on an EEG called a spike that is usually followed by a slow wave. Dr. Towbin proceeded to conduct video EEG monitoring of Arbaugh over two 24-hour contiguous periods of time during which Arbaugh experienced three seizure-like episodes. Throughout each episode, the EEG remained essentially unchanged. Dr. Towbin interpreted these test results to mean that the “seizure-like events” were non-epileptic and non-physiologic, but rather psychiatric in origin; that is, they were emotionally derived events and not events derived from brain pathology.
Dr. Towbin’s findings based on the EEG test data were consistent with his opinion that Arbaugh’s symptoms during the “seizure-like events” were atypical of seizures. Arbaugh described the episodes as beginning with a sudden feeling of fatigue followed by a numbness on the left side of his face and then a “pin and needles” feeling that would spread across his face and eventually down his entire left side. As explained by Dr. Towbin, fatigue would be common after a seizure, not at the beginning, and seizures usually cause some positive symptoms, such as movement, rather than negative symptoms, such as loss of function.
Furthermore, Dr. Towbin stated that while it was possible to have a seizure disorder as a result of electrical injury, he opined that it would be hard to have such an injury that is substantial enough to result in cortical injury so as to cause seizures without that electrical injury doing other physical damage, such as burns in the skin, spinal cord sequelae, cardiac sequelae, or other brain-related phenomena. In that regard, Arbaugh testified during the hearing that he had bruises on his back from when he fell after the accident and red lines on the back of his head. Plowever, during his deposition, he denied that he had any bruises or scratches after the accident. Likewise, in giving a history to Dr. Michael Morse on August 17, 2000, he reported no burns at the entry or exit site.
Dr. Gary Souheaver, a clinical neuropsychologist, evaluated Arbaugh’s medical records and data collected from 1997 forward. He noted that before the June 2, 2000 incident Arbaugh suffered from several major psychiatric disorders, including suicidal attempts, a diagnosis of bipolar disorder, and major depression disorder recurrent. He further noted a history of alcohol and methamphetamine abuse. The symptoms associated with these conditions included difficulties with concentration and memory, not being able to think clearly, and bizarre thinking. In addition, the records reflected two prior closed-head injuries, one which involved the loss of consciousness. Dr. Souheaver stated that such injuries produce symptoms of personality disorganization, memory complaints, concentration difficulties, ease of fatigueability, balance issues, and sometimes ringing in the ears. Based on his review of the medical records, Dr. Souheaver concluded that Arbaugh’s major diagnosis, both before and after the accident, was a differential between a bipolar disorder or a major depressive disorder recurrent. He saw no reason to resort to an organic-brain-disorder diagnosis because Arbaugh’s symptoms could not be attributed to an underlying brain disorder. Specifically, Dr. Souheaver noted an “out of pattern relationship for an underlying brain disorder” from the results of a battery of psychological tests conducted by other physicians, including Dr. Betty Back-Morse, after the June 2 incident. In his words, “to get a category score . . . as good as his score is just almost unheard of in a brain disorder.” Moreover, according to Dr. Souheaver, there are a number of reasons, such as depression or drugs, that a person can experience cognitive dysfunction without having a brain disorder.
Dr. Bettye Back-Morse, also a neuropsychologist, personally evaluated Arbaugh. While her testimony was favorable to Arbaugh’s claim, her analysis elicited criticism from Dr. Souheaver on grounds that she relied too much on history and what Arbaugh told her rather than objective data. In fact, Dr. Back-Morse acknowledged that she did not know whether Arbaugh had cognitive dysfunction problems before the incident on June 2, 2000. Dr. Vann Smith, another neuropsychologist, also evaluated Arbaugh and presented favorable testimony that Arbaugh suffered from moderate to severe impairment after the accident. Yet, he admitted that he did not know whether or not Arbaugh fell within the moderate to severe impairment range before the reported June 2 injury. Finally, Dr. Michael Morse, a neurologist, evaluated Arbaugh six times for his “spells” and neuropathy, a nerve injury in his arms. Dr. Morse was not able to say exactly what the spells were. In his opinion, the EEG and MRI of Arbaugh’s brain were normal. More importantly, he stressed that Arbaugh’s cognitive problems and history of mental illness were best addressed by other physicians; thus, as to those matters, he deferred to the neuropsychologists.
Once again, we have repeatedly stated that the credibility of any witness is a matter exclusively within the province of the Commission. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001); Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158 (1996). Because the record contains testimony and reports from medical experts that Arbaugh did not sustain an organic-brain injury during the June 2 incident, and that his organic-brain problems were not causally related to the incident, we are not convinced that fair-minded persons could not have reached the conclusions arrived at by the Commission. Accordingly, we must affirm the Commission’s decision as it is supported by substantial evidence.
Affirmed.
Arbaugh alleged that the injury resulted in seizure-like symptoms, cognitive dysfunction, depression, and anxiety.
Although Arbaugh contended before the ALJ that he suffered both a psychological injury and an organic-brain injury as a result of the electrical shock, he appears to have abandoned the psychological-injury argument on appeal.
As to the etiology of the psychiatric events experienced by Arbaugh, Dr. Towbin stated that not being a psychiatrist, he did not know whether to ascribe them to traumatic factors or to other life experiences.
As reflected in the record, Dr. Souheaver testified that he thought three of the diagnoses noted in Arbaugh’s medical records as of June 2000 (major depression recurrent, mild cognitive disorder (NOS), and bipolar disorder) may be relevant in this case; however, he could not say Arbaugh had more frequent or more severe episodes of depression as a result of the electrical shock on June 2. | [
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Betty C. Dickey, Justice.
The Department of Human Services (DHS) seeks a writ of prohibition to prevent the Marion County Circuit Court from enforcing an order that DHS perform a home study in Kansas. The petition is denied because the circuit court has rescinded its order.
At issue is the placement of a fifteen-year old child with the child’s biological aunt, living in Kansas. This aunt was being considered for legal custody through the Interstate Compact on the Placement of Children (ICPC). On March 11, 2004, the circuit court ordered a home study through ICPC. On June 25, 2004, the circuit court, expressing concern that the home study through ICPC had not been completed and citing a need to place the child immediately, issued an order requiring DHS to proceed to Kansas to perform a home study on the aunt’s home by August 11, 2004. Confirming from both the CASA worker and the attorney ad litem that there was no objection by DHS , the court stated:
The Court finds that it is imperative with [the child’s] upcoming discharge from treatment that we update his placement with [his] family in Kansas. The Court finds that the wheels of ICPC turn too slowly for that to happen in a timely fashion, so the Court has directed that DHS do a home study on the [child’s] family in Kansas. The Court finds that there is an availability of time and effort because DHS is already going to be in the State of Kansas for another matter, and the Court would direct that occur on that date. The Court would note that this has been with the compliance with the CASA worker... as well as with... the attorney ad litem in this case, is that right?
On July 7, 2004, DHS filed an application for stay of the order to do the home study in Kansas, arguing that the circuit court erred in ordering DHS to undertake an out-of-state home study. On August 6, 2004, DHS petitioned for a writ of prohibition and application for temporary relief with this court. On August 10, 2004, we stayed the circuit court’s order and directed the parties to submit simultaneous briefs on the issue. On August 11, 2004, the circuit court withdrew its previous order requiring DHS to perform a home study in Kansas, because the ICPC home study had been completed and had been received by the circuit court. The circuit court, awarding custody of the child to the aunt, stated:
At this point in time then the Court would withdraw previous orders made by the Court requiring the Department to do a home study in Kansas. It’s now been done by ICPC, so it’s probably moot anyway.
DHS now asks this court to issue a writ and order that: (1) DHS no longer be required to perform the out-of-state home study; and, (2) no contempt or enforcement proceedings may be undertaken in the circuit court. DHS contends that “the trial court has exceeded its power in this case, and should be prevented from enforcing the order, or punishing the Department or its caseworkers for violating an order that should have never been entered.” DHS argues that the circuit court must enforce the Interstate Compact on the Placement of Children, and that a circuit court does not have the statutory authority to order DHS to perform a home study in another state.
We need not address those arguments because the trial court has the inherent power to modify an order with or without notice to any party by motion of a party or on its own within ninety days of filing. Steward v. Wurtz, 327 Ark. 292, 938 S.W.2d 837 (1997); Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994). The power of a court to modify or set aside a judgment during the term it was entered, now ninety days according to Rule 60(b) , exists as an inherent power and outside of any rule or statute. Id.; Massengale v. Johnson, 269 Ark. 269, 599 S.W.2d 743 (1980); Cowan v. Patrick, 247 Ark. 886, 448 S.W.2d 336 (1969); Wright v. Ford, 216 Ark. 55, 224 S.W.2d 50 (1949). That authority exists so that courts may review and correct any mistakes, errors, or indiscretions that might have been committed during the term. Id.; Underwood v. Sledge, 27 Ark. 295 (1871).
Because the trial court has already acted and there currently is no act to prohibit, the petition is denied.
Denied.
Gunter, J., not participating.
This court notes that subject-matter jurisdiction can be raised at any time. Parker u Sebourn, 351 Ark. 453, 456, 95 S.W.3d 762, 765 (2003). It is well settled that subject-matter jurisdiction may not be stipulated by the parties and, “if lacking, cannot be induced simply because there is no objection.” Id.-, J. W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 352, 836 S.W.2d 853, 858 (1992).
After the 2000 amendment to the Rules of Civil Procedure, the power to modify or set aside a judgment during the term it was entered is now found at Rule 60(a). | [
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Donald L. Corbin, Judge.
This case involves a suit against a life insurance carrier for benefits under a $1,000 policy of life insurance on the life of Paul Cableton. The court ruled that the policy of life insurance was issued contrary to the laws of the State of Arkansas in that Paul Cableton did not consent in writing to the issuance of the life insurance policy insuring his life as required by Ark. Stat. Ann. § 66-3206 (Repl. 1980). We affirm.
The Court had some difficulty following the discourse of the parties’ briefs; however, We believe that the evidence introduced into the record reflects the following basic facts. The soliciting agent for appellee, Gulf Life Insurance Company, up to the time he took the witness stand at trial, had contended to appellee as well as to appellant that he had destroyed the application signed by a family member of appellant, for life insurance on Paul Cableton’s life and procured the signature of Paul Cableton on a second application. During the trial it became apparent that the agent had never obtained Paul Cableton’s consent or signature. There was no evidence in the record indicating that appellee had any pre-existing knowledge of this deception by their agent until the agent took the witness stand. Too, other than a clearly hearsay statement, there was no evidence that Paul Cableton had any knowledge of the life insurance policy.
Ark. Stat. Ann. § 66-3206 states as follows:
No life or disability insurance contract upon an individual, . . . shall be made or effectuated unless at the time of the making of the contract the individual insured, being of competent legal capacity to contract, applies therefor or has consented thereto in writing. . . [Acts 1959, No. 148, § 273, p. 418.]
Case law prior to 1959 sets forth the same policy that the legislature codified in Ark. Stat. Ann. § 66-3206 above. The case of Callicott v. Dixie Life & Accident Insurance Company, 198 Ark. 69, 127 S.W.2d 620 (1939), closely parallels the facts of the instant case. In Callicott, supra, the Court made the following statement:
It is contended, however, by the appellee, that the policy was void because the consent of the insured was not obtained; that the policy was taken without his knowledge or consent. The evidence conclusively shows this to be true, and this would make the policy voidable. One who takes out a policy of insurance on the life of his brother without the knowledge or consent of the latter, cannot maintain an action against the company on the policy. 14 R. C. L. 889.
It is against public policy to allow one person to have insurance on the life of another without the knowledge of the latter. It is not only the general rule that the consent of the insured must be had, but that is the rule in this jurisdiction, and this case is ruled by the case of Amer. Benefit Life Ins. Ass’n v. Armstrong, 183 Ark. 47, 34 S.W.2d 1082.
The passage of Ark. Stat. Ann. § 66-3206 codifies this policy and cannot be circumvented. The adherence to the policy of non-waiver of statutory law is best stated in Southern Burial Insurance Company v. Baker, 199 Ark. 468, 134 S.W.2d 1 (1939), wherein the Court stated:
If there is any point to § 14 of said Act 139 of the Acts.of 1925, we must follow the plain letter of the law and give due effect to this provision, or declare it unconstitutional and void. There is no room for construction, nor question of validity raised on this appeal. Truly, if we might say that the parties by their conduct could waive these provisions and their effect in this class of insurance, then there is no reason why the Legislature should have troubled about the enactment of this bit of legislation.
Case law since the passage of Ark. Stat. Ann. § 66-3206 has upheld the written consent provision. See Constitution Life Ins. v. Thompson & Son, 251 Ark. 784, 475 S.W.2d 165 (1972).
Affirmed.
Cloninger and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
This appeal is from an order by the chancellor correcting his prior order regarding child support payments due from the appellee to the appellant. The parties were divorced in 1976 and their three children were placed in the appellant’s custody. The appellee was ordered to pay child support in the amount of $133.00 per month per child. In January of 1980 the appellant went to California and left the children in the appellee’s custody. During this period, the two male children decided they would rather stay with the appellee. Upon the appellant’s return from California later that summer, a hearing was held in which the court gave the appellee custody of his two sons and the appellant was awarded custody of her daughter. The chancellor also awarded the appellant child support from the appellee in the amount “of $117.00 on the first and fifteenth of each month.” This was done on August 11,1980, but the order was not entered until January of 1981 — nunc pro tunc. The appellant accepted payments of $117.00 per month for a period of nineteen months. She then filed a petition for arrearages alleging that the August 11, 1980 order required the appellant to pay support in the amount of $234.00 per month, rather than the $ 117.00 per month. After taking testimony, the chancellor ruled that the order of August 11, 1980 was capable of more than one interpretation, and that he would correct it to reflect what he actually ordered in August of 1980, i.e., child support payments of $ 117.00 per month, payable in two equal installments on the first and fifteenth of each month.
For reversal, the appellant argues that the chancellor was without authority to modify the August 11, 1980 order because more than 90 days had elapsed since the filing of the decree and ARCP, Rule 60 (c) prohibits such modification after 90 days from the entry of the decree. We hold that ARCP, Rule 60 (c) has no application to the facts of this case and we affirm.
Our appellate courts have long recognized the inherent power of the courts of this state to enter orders correcting their judgments where necessary to make them speak the truth and reflect actions accurately. Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983). “This power, however, is confined to correction of the record to the extent of making it conform to the action which was in reality taken at the time. It does not permit the change of a record to provide something that in retrospect should have been done but was not done.” Id.
After reviewing the chancellor’s letter order in this matter, as well as the testimony at the hearing on the appellant’s petition, we find that the chancellor acted properly in correcting his order of August 11, 1980. He simply made his earlier order say clearly what he intended it to say when he made it. The evidence is overwhelming that he intended in August of 1980 to modify the appellee’s support obligation downward since the circumstances had changed in that the appellee now had custody of two of his three children.
Affirmed.
Mayfield, C.J., and Cloninger, J., agree. | [
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James R. Cooper, Judge.
Appellant, the widow of John DaCosse, filed suit in Baxter County Chancery Court against appellees, executor of his will and his children by a prior marriage, seeking specific performance of a contract to make a will, or, in the alternative, restoration to her position prior to the execution of the contract.
The facts are not disputed. Appellant and John Da-Cosse were married on September 14, 1977, the third marriage for each of them. Each owned property individually at the time of the marriage. In February of 1978, the deceased created a tenancy by the entirety by deeding his separate property to himself and his new wife. They acquired two two-acre tracts in both names at approximately the same time.
On October 25, 1978, John DaCosse filed suit for divorce against appellant. On October 27, 1978, he executed a will excluding appellant and leaving all his property to his children. On January 25, 1979, John DaCosse and appellant executed a “Reconciliation Agreement.” As part of the agreement, appellant was to convey to John DaCosse the interest in real estate and notes which she acquired by reason of his February, 1978 conveyance to her. The agreement further provided that “on or before April 18, 1979,” appellant was to transfer the balance in a particular savings account into a joint account with her husband.
Two days after the execution of the agreement, John DaCosse suffered a heart attack and was hospitalized for ten days. He returned home, but died March 9, 1979, without executing a new will. At the time of his death appellant had not transferred the funds into a joint savings account, but she did so later, prior to April 18, 1979, on the advice of her attorney.
This suit was filed to compel enforcement of the contract, or, in the alternative, to restore to appellant the property she conveyed to John DaCosse pursuant to the “Reconciliation Agreement.” The practical effect of either prayer for relief would be the same, that is, vesting ownership of all the real property of decedent in appellant.
The trial court made detailed findings of fact, and concluded that the “Reconciliation Agreement” was a two-part contract. The Court found that the first part, to be performed on January 25, 1979, required that appellant convey to John DaCosse all of his separate property which he had conveyed to her in February of 1978. The Court found that this portion of the agreement further provided that the parties were to forgive each other of any prior misconduct and resume living together. John DaCosse agreed not to give away or otherwise transfer any of the property conveyed to him without appellant’s written approval. The Court found that this part of the agreement was fully performed by both parties. The Court held that appellant, in exchange for her conveyance of the property to John DaCosse, received a halt to the divorce proceedings filed by him, a resumption of the marital relationship, the possibility of becoming sole beneficiary of John’s will on or before April 18, 1979, and the right to retain sole ownership of the savings account until she got the will. The Court further found that John DaCosse acquired his separate property back, was able to resume the marital relationship, and was willing to obligate himself to make a new will leaving everything to appellant within 90 days. The Court found good and mutual consideration for the-first part of the agreement, and that each party got what they bargained for as of January 25, 1979.
As to the second phase of the agreement, which was unperformed at the time of John DaCosse’s death, the Court found that it was conditioned on the couple living together for 90 days. John DaCosse, of course, had the option of making his will sooner if he desired. The Court found that John’s death, prior to April 18, 1979, extinguished his obligation to make a new will, and stated:
... just the same, in my opinion, as the obligation to make a new will would have been extinguished if prior to April 18, 1979, Jill had given John cause for divorce and they had separated before that date and before the making of the new will. In either event Jill then would be entitled to retain her half of the savings account money. (T. 426)
The Court believed, from all the evidence, and the terms of the contract itself, that appellant had-taken a calculated risk that both she and her husband would live harmoniously for at least 90 days following the reconciliation. The Court felt that there was a lack of mutuality of obligation in the event they were not living together on April 18, 1979.
Appellant transferred the money from her separate name to the joint account after John’s death and before April 18, 1979. The Chancellor attributed little weight to this transfer, since the funds were transferred to a joint account with right of survivorship.
The Court noted other language in the contract which stated:
The statutory rights of each of the parties in the estate of the other are hereby fully restored. (T. 427)
The Court interpreted this to mean that the parties intended to place themselves in the same position as they were in prior to their marriage, and that the only rights they would have in the other’s estate before April 18, 1979, would be their statutory rights. Based on that interpretation of the contract and the evidence, the trial court denied any relief to appellant. We agree with the trial court that appellant is not entitled to any relief.
When construing a contract in order to give effect to the intent of the parties, the court must consider the circumstances surrounding the making of the contract, the subject of the contract, and the situation and relation of the parties at the time of its making. Louisiana-Nevada Transit Co. v. Woods, 393 F. Supp. 177 (W. D. Ark. 1975). At the time appellant conveyed her interest in the property to her husband, she was aware of the existence of the earlier will which cut her out. She was represented by an attorney at that time and cannot claim that she did not know the effect of her actions.
The purpose of the 90 day delay in implementing the remainder of the agreement is unclear. The only testimony regarding its purpose is that of her attorney, who indicated that the delay was inserted to prove her faith in her husband. Appellant’s attorney drafted the “Reconciliation Agreement.” The Arkansas Supreme Court has held that when there is uncertainty or ambiguity in a contract and it is susceptible to more than one reasonable construction, then we must construe it most strongly against the party who drafted it. The reason for this rule is that the drafter of a contract is in a better position to convey a clarity in meaning by his choice of words and phraseology. Elcare, Inc. v. Gocio, 267 Ark. 605, 593 S.W. 2d 159 (1980). This rule has application in this case.
The appellant argues that the Court engrafted conditions and terms on the contract which were not included in it. We disagree. The parties had been married a short time (five months) when appellant created the tenancy by the entirety in his separate property; eleven months when the divorce action was filed, and only sixteen months when the reconciliation agreement was signed. There is no suggestion of any reason why all the terms of the agreement could not have been fulfilled in January of 1979, and, therefore, the parties must have had a reason for the delay. We believe, as did the Chancellor, that the reason was more substantial than that expressed by appellant’s attorney. We agree with the Chancellor that this portion of the agreement contemplated the parties living together harmoniously at least until April 18, 1979, and, if that occurred, John DaCosse intended to devise his property to appellant, and she intended to re-establish their joint ownership of the funds she had held as her own since the separation. To hold otherwise would require us to believe that the two contracting parties and their attorneys established a date for the performance of certain acts (execution of the will and transfer of funds) for no substantial reason.
Appellant had retained ownership of her separate property, and, from all the circumstances, it seems obvious that the parties were attempting to start over, "and to forgive the past. If their fresh start was successful, they intended to perform the additional acts agreed upon. We do not believe that the delay was unimportant to the parties, and we cannot agree that, from the time the agreement was executed, John DaCosse was irrevocably obligated to devise his property to Jill, regardless of their status during the ninety days, whether divorced, separated or happily cohabiting.
The appellant argues that, if the trial court is correct, no specific performance of a contract to make a will could ever be ordered against a personal representative because of the death of the obligor before performance. This position is incorrect, as there could easily be performance by the obligee which would require performance by the personal representative. Here, we agree with the Chancellor that there was no performance by the obligee which requires performance by the personal representative.
In chancery cases, we review the record de novo, but we will not reverse the findings of the Chancellor unless they are clearly erroneous or against the preponderance of the evidence, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Ark. Rules of Civil Proc., Rule 52; Andres v. Andres, 1 Ark. App. 75, 613 S.W. 2d 404 (1981); Hackworth v. First National Bank of Crossett, 265 Ark. 668, 580 S.W. 2d 465 (1979).
We have considered the arguments advanced by appellant as to enforcing the agreement, and the allegations as to errors committed in the trial court proceedings, but we find them to be without merit. We cannot say that the findings of the Chancellor are against a preponderance of the evidence, or that they are clearly erroneous, or that equity dictates a different result following de novo review by this Court, and therefore, we affirm.
Affirmed.
Cracraft, Cloninger, and Corbin, JJ., dissent.
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Donald L. Corbin, Judge.
John Beeler brought a claim pursuant to the Arkansas Workers’ Compensation Act, Ark. Stat. Ann. § 81-1301, et seq. Mr. Beeler sought corroboration of certain parts of his testimony through testimony of an employee of the Employment Security Division. The information Mr. Beeler sought was contained on an Employment Security Division form and supplied to the Employment Security Division by him.
Upon the refusal of the Employment Security Division to voluntarily appear, Mr. Beeler obtained a subpoena duces tecum directing an Employment Security Division employee to appear and bring Mr. Beeler’s record. The Employment Security Division moved to quash the subpoena and the motion was denied by the Administrative Law Judge. From that decision the Employment Security Division has taken this appeal. We modify the decision of the Workers’ Compensation Commission.
The issue before us is whether all information obtained by the Employment Security Division from an individual or employing unit is confidential and cloaked with governmental privilege pursuant to Ark. Stat. Ann. § 81-1114(1) (Repl. 1976). We note that the General Assembly of Arkansas amended Ark. Stat. Ann. § 81-1 Il4(/) by enacting Act 43 of 1981. However, this case involves the application of Ark. Stat. Ann. § 81-1114(/) before the enactment of Act 43 of 1981.
The Employment Security Division contends that the confidentiality of its records is based not on the right to privacy of the individual but on some form of executive privilege. We disagree with that contention.
Ark. Stat. Ann. § 81-lll4(i) (Repl. 1976) reads in part:
Except as hereinafter otherwise provided, information obtained from any employing unit or individual pursuant to the administration of this act, and determina tion as to the benefit rights of any individual shall be held confidential and shall not be disclosed or be open to public inspection in any manner revealing the individual’s or employing unit’s identity.
We recognize that the privilege of public officers and employees against being compelled to disclose communications made to them in matters affecting individuals depends largely upon statutory enactment. A statutory provision forbidding disclosure of public information, reports, records, documents or other matters by public officials and public employees is generally upheld. 81 Am. Jur. 2d, Witnesses, § 287, pp. 303, 304.
Ark. Stat. Ann. § 81-1114(7) (Repl. 1976) also provides as follows:
Any claimant (or his legal representative) shall be supplied with information from the records of the division, to the extent necessary for the proper presentation of his claim in any proceeding under this act with respect thereto; ...
This provision seems to recognize that a claimant seeking benefits under the Employment Security Division program has some right to information from this file but that his access to or use of the information is limited to proceedings under the Employment Security Act.
Appellant has cited no reasoning for such a limitation except “to protect the great bulk of information which is accumulated by the Employment Security Division and, in so doing, to insure the Employment Security Division’s ability to secure the information necessary for the proper administration of the Employment Security Law would not be impaired.”
The Arkansas Workers’ Compensation Act and the Employment Security Act are both social legislation to protect the interests of injured and unemployed workers. As such, the two acts should be construed as compatible and in aid of each other.
In the instant case, we construe the provisions of the Employment Security Law as codified at § 81-1114(7) (Repl. 1976) to be based on the right to privacy of the individual. We see no justification for the Employment Security Division to refuse to provide, pursuant to a subpoena duces tecum by the Workers’ Compensation Commission, information that was furnished by the claimant to the Employment Security Division. The protection of the statute was waived by the individual upon his requesting the information which he provided. The identity of the employing unit and other collateral information obtained by the Employment Security Division in the ordinary course of its business would be privileged information.
We modify the decision of the Workers’ Compensation Commission to allow the production of those written documents and information provided by the employee to the Employment Security Division; provided, however, the Employment Security Division shall delete all references to the identity of the employing unit.
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Tom Glaze, Judge.
This case is a boundary dispute between two adjoining landowners. Appellants initiated an action against appellees for ejectment in circuit court, requesting the court to compel appellees to remove two mobile homes situated on appellants’ property. Appellees defended the action below, affirmatively alleging adverse possession, acquiescence, laches, cancellation and reformation. On appellees’ motion, the case was transferred to chancery court where it was tried and decided. The chancellor found against appellees concerning all their affirmative defenses. In addition, the chancellor determined that although there was no dispute that appellant had legal title to the property in their deed, they failed to present a correct survey which located the corners of the property on the ground. Thus, since the chancellor was unable to determine if the appellees’ mobile homes were located on appellants’ property, he dismissed appellants’ complaint. Both parties appeal and, between them, raise six points for reversal.
We agree with the trial court’s holding that appellees failed to show evidence which would support any of the defenses they interposed at trial. Appellees offered no proof of mutual mistake to substantiate their claim of reformation nor did they attempt to join all the necessary parties in an effort to prevail on this theory. Of course, this failure on appellees’ part may well be due to their election to prove that they had acquired title to part of the appellants’ property by adverse possession or acquiescence, contradictory defenses to their claim of mutual mistake.
Concerning the adverse possession claim raised by appellees, one of the appellees, Arvilee Allen, testified at trial that he was not claiming the disputed property by adverse possession. Rather, Allen stated that he and appellant Carl Dicus agreed on where the property line was located. The other evidence in the record certainly supports the court’s finding (and Allen’s testimony) that no adverse possession claim was intended. The appellants and appel-lees were good friends and neighbors commencing when they purchased adjoining properties in 1962 and until 1978 or 1979, the years in which several surveys were conducted on the parties’ lands to determine property boundaries. Passage over appellants’ property to and from the appellees’ land was permitted without objection until 1979. In 1979, appellants had a survey prepared in connection with their attempt to sell their property, and it was not until this time that ill feelings and adverse claims began to surface between the parties. From the evidence, appellees failed to offer evidence to prove the requisite passage of time and intent to show they held any land adversely against appellants.
From the evidence, including Mr. Allen’s testimony, appellees’ main contention at trial was that appellants had agreed to a dividing line and appellees argue their two mobile homes were placed and are now located on their side of this agreed line. Whether or not an agreement was reached between the parties was certainly in dispute, and based on conflicting testimony and evidence, the chancellor held that no such agreement occurred. The chancellor’s finding on this issue of fact was not clearly erroneous or against the preponderance of the evidence, and consistent with Rule 52(a) of the Arkansas Rules of Civil Procedure, we will not set aside his finding. From a review of the record, we agree with the chancellor’s decision to deny relief on each of the claims asserted by appellee.
Concerning the chancellor’s decision to dismiss appellants’ complaint, we must disagree. Although appellants raise four points for reversal, we need only discuss one point, which we find is dispositive of the parties’ boundary dispute. The appellants and appellees purchased their respective tracts of property in 1962 from a common grantor, the uncle of appellee Margie Allen. The appellees bought nineteen acres and appellants purchased 1.5 acres located immediately west and adjoining the nineteen acre tract. The south boundary of the parties’ properties runs along Highway 7. The north boundary of appellees’ land is the quarter line. Appellants’ north line is bordered by a 3.2 acre tract owned by W. L. Stover and Richard Baker. This 3.2 acre tract was previously owned by appellees and they sold it to Stover and Baker in 1978. Like appellees’ tract, the north boundary of the Stover/Baker acreage is the quarter line. Stover also purchased a four acre tract in 1978, which is located immediately west of the tracts owned by Stover, Baker and the appellees. Its north boundary is the quarter line. All four of the tracts mentioned above are within the same quarter section and until 1978 when Stover and Baker purchased the 3.2 and four acre tracts, all of the tracts had been purchased without benefit of a survey.
In 1978, Stover and Baker hired Gary Whitfield, a registered land surveyor, to survey the 3.2 acre tract owned by appellees and also the four acre tract on the west. At the time of this survey, Whitfield showed appellees the corners of appellants’ property. Whitfield testified that the east line of appellants’ property ran through one of appellees’ mobile homes and a second mobile home was located entirely on appellants’ property. This apparently was the first clear indication anyone had that appellees may have mobile homes on the land of appellants. Based on the Whitfield survey, Stover and Baker purchased the 3-2 acre tract from appellees and the four acre tract from Golden Marine, Inc.
In 1979, appellants hired Whitfield to survey their tract which they decided to sell. Whitfield used the same points established in his 1978 survey, and his second survey again reflected that appellees’ mobile homes were on appellants’ land.
At trial, the appellees offered their own land survey expert, Boyd Cardin, who testified that Whitfield used the wrong bearings in establishing the west and east boundaries of the appellants’ tract because they do not parallel. Cardin stated that a survey should parallel the nearest section line, and Whitfield failed to do so in his 1978 or 1979 surveys. Whitfield testified that no one, including the Corps of Engineers, which had surveyed this same area many times, had previously established the section line on the ground, and to do so he would have to grid the entire section. The chancellor’s dilemma at this stage of the trial was: The legal description reflected in the deeds to all four adjoining tracts did not overlap and appeared accurate, but he determined it was impossible to establish the east and west boundaries of appellants’ tract on the ground because a section line had not been found or established. Without a more accurate survey, the chancellor found he could not locate the east/west boundaries or the location of the two mobile homes relative to such boundaries. He proceeded to dismiss appellants’ complaint.
The established rule of property is that the original United States Government survey is prima facie correct and surveys must conform as nearly as possible with the original government survey. Carroll v. Reed, 253 Ark. 1152, 491 S.W. 2d 58 (1973). In the instant case, none of the adjoining tracts had ever been purchased or sold relative to any survey until 1978, much less a survey which tied into points established by the United States Government. Under these facts, we find it unnecessary to require the parties to underwrite additional surveys to assure the north/south boundary lines are exactly parallel with the section line.
In 1978, the appellees relied on Whitfield’s survey when they sold Stover and Baker the 3.2 acre tract immediately north of appellants’ property. Whitfield testified that he shot the appellants’ east boundary line to Highway 7 and knew then that the two mobile homes encroached on appellants’ land. He informed the appellees of this fact and Whitfield said that they appeared satisfied with the survey. In any event, even appellee Arvilee Allen admits he conveyed the 3-2 acres based on the 1978 Whitfield survey. Thus, as early as 1978, Whitfield had established the corners of appellants’ property but did not set the southeast corner until his 1979 survey. Even though these corners are aligned with the lines and corners of the 3.2 acres sold by appellees in 1978, they now choose to disavow the points established by the Whitfield surveys. We believe that it would be inherently unfair to permit appellees to take these inconsistent positions, and we, therefore, hold that they are estopped from rejecting the Whitfield survey when they had relied on it only one year before their dispute arose with appellants. See, Omohundro v. Ottenheimer, 198 Ark. 137, 127 S.W. 2d 642 (1939), and also 31 C.J.S.Estoppel, § 116.
The guides to locating boundaries are set forth in McKinley v. Hilliard, 248 Ark. 627, 454 S.W. 2d 67 (1970), wherein the court, quoting from Ewart v. Squire, 239 F. 34 (4th Cir. 1916) stated:
In ascertaining location the guides in the order of importance are: (1) Natural objects; (2) artificial objects; (3) adjacent boundaries-, (4) courses; (5) distances; (6) quantity. But the rule is flexible, and it does not control against the intention of the parties as shown by the description taken as a whole ... The order of the importance of the guides is manifestly the more flexible when the description of subdivisions of a tract is ascertained by protraction and not by actual survey. [Emphasis supplied.]
Consistent with the foregoing guidelines, the record reflects that the tracts adjoining appellants’ property on the west, north and east sides have corresponding boundaries and descriptions. There are no overlaps or discrepancies in the legal descriptions of any of the four adjoining tracts. Moreover, under the Whitfield surveys, all of the adjoining owners have at least the same quantity of acreage called for in their'respective deeds. When appellees’ surveyor, Cardin, set out to check Whitfield’s surveys, it was his duty solely to locate the lines of the original survey where title to land has been established under a previous survey. He cannot establish a new corner, nor can he even correct erroneous surveys of earlier surveyors. McKinley v. Hilliard, supra.
We reverse and remand this cause with directions that appellants’ complaint be reinstated and a judgment be entered establishing appellees’ east boundary in accordance with the Whitfield surveys. Since the Whitfield surveys reflect that appellees’ two mobile homes encroach on appellants’ property, the court must also order the removal of the homes as prayed for in appellants’ complaint.
Reversed and remanded. | [
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John Mauzy Pittman, Judge.
The appellant, Picky Darnell Wilkerson, pleaded guilty on January 18, 1993, to burglary and theft of property and was placed on probation for a period of three years. In February 1994, the prosecuting attorney filed a petition alleging that appellant had violated several conditions of his probation. After a hearing, the trial court found that appellant had violated certain terms of probation, revoked his probation, and sentenced him to five years’ imprisonment in the Arkansas Department of Correction, with four years suspended on each charge. Appellant argues that the revocation petition should have been dismissed for failure to have a timely hearing. We affirm.
Arkansas Code Annotated § 5-4-310(b)(2) (Repl. 1993) provides that a revocation hearing shall be conducted within a reasonable period of time, not to exceed sixty (60) days after the defendant’s arrest. The record indicates that appellant was arrested for violation of probation on March 2, 1994. On May 2, 1994, a hearing on the revocation petition was continued to May 27, 1994, at the State’s request and without objection from appellant, to permit appellant to assemble his witnesses. At the May 27, 1994, revocation hearing, after all the testimony was presented, appellant moved to dismiss the petition on the basis of § 5-4-310 (b)(2) for lack of a speedy hearing. The court found that appellant waived his objection by failing to move for dismissal prior to the hearing and revoked his probation.
We agree with the trial court’s ruling. The State has a right to be notified prior to the hearing that a defendant will raise a speedy-hearing objection, and appellant waived his objection by failing to move for dismissal of the petition prior to the hearing. Summers v. State, 292 Ark. 237, 729 S.W.2d 147 (1987). In Summers, supra, the Arkansas Supreme Court applied to a revocation proceeding Arkansas Rule of Criminal Procedure 28.1(f), which states that a defendant’s failure to move for dismissal of a charge for lack of a speedy trial prior to trial results in a waiver.
Appellant’s counsel argues that he moved for dismissal as soon as he became aware that appellant’s March 2 arrest was for the probation violation, rather than on the underlying felony charges. However, counsel had access to this information prior to the hearing, and has not demonstrated a good reason why the motion was not filed before the hearing. Id. We find no error and affirm the revocation of appellant’s probation.
Jennings, C.J., and Robbins and Rogers, JJ., agree.
Cooper and Mayfield, JJ., dissent.
Melvin Mayfield, Judge.
I cannot agree with the majority opinion in this case. The opinion recognizes that Ark. Code Ann. § 5-4-310(b)(2) (Repl. 1993) provides that a revocation hearing shall be conducted within a reasonable period of time, not to exceed sixty (60) days, after the defendant’s arrest, but by reliance upon Summers v. State, 292 Ark. 237, 729 S.W.2d 147 (1987), the majority holds that the appellant failed to move for dismissal prior to trial and that this resulted in a waiver of the sixty-day hearing requirement.
The first problem I have with the majority’s thesis is that our examination of the issue involved should start with the appellant’s first appearance before the court after his arrest for violation of probation. This appearance was pursuant to an order setting a preliminary revocation hearing. The order shows it was signed by the judge on March 2, 1994, and the hearing was set for March 29, 1994.
At that hearing, as shown by the record and appellant’s abstract, the appellant was brought before the judge and the following proceedings, relevant to the issue now on appeal, occurred:
Court: All right, Mr. Wilkerson, one thing seems clear, you don’t have any ability to hire a lawyer, do you?
Defendant: No, sir.
Court: The Court’s going to appoint the public defender’s office to represent you, sir, in your revocation hearing set for May the 2nd.
Defendant: Now, what — That will be — A revocation is like to tell me if I’m violated.
Court: Yes, sir.
Defendant: Shouldn’t we go to trial first? I mean, I’m not trying to be smart, but —
Court: That’s up to the State. They may not be ready for you then. They may come back and file charges —
Defendant: But I’m sitting down there. I have no bail because it makes it look like, on paper, it makes it look like I’m A1 Capone. And I’m sitting down here in this jail house for what? They could hold me nine months, ten months,
Court: No, sir. They won’t hold you that long or they’re going to have to file on you.
Defendant: So the charges aren’t filed yet?
Court: The new felony charges that Mr. Wray has referred to apparently are not yet filed, at least I don’t know about them. The revocation petition has been filed and may well be amended before May 2nd. See, we don’t have to try the new charges before we have a revocation hearing on probation.
At this point we need to look at the dates involved. It appears from an exchange between the court and appellant at the beginning of the preliminary hearing that the appellant had been in jail in Hamburg, Arkansas, since March 2, 1994. However, at the revocation hearing it was stipulated — and this is clearly abstracted in appellant’s brief — that the appellant was arrested on March 1, 1994, at 9:40 p.m. The stipulation also agreed that appellant was arrested for probation violation only — pursuant to a telephone call by Debbie Hancock, probation officer.
This information is important because it shows that whether the arrest occurred on March 1 or March 2, sixty days from those dates would be either April 30, 1994, or May 1, 1994. Of course, the revocation hearing set for May 2, 1994, was set more than sixty days after appellant’s arrest regardless of whether the arrest was made on March 1 or March 2. However, April 30, 1994, fell on a Saturday and May 1, 1994, fell on a Sunday. Under Rule of Criminal Procedure 1.4 when the last day of the time period to do an act provided by a statute governing criminal procedure falls on a Saturday or Sunday the period shall run until the end of the next day which is neither a Saturday or Sunday, nor a legal holiday. Therefore, the revocation hearing held on May 2, 1994, was within sixty days after appellant’s arrest.
However, I do not believe that the time computation provisions of Ark. R. Crim. P. Rule 1.4 answers the question presented in this case. The simple fact is that the last day to hold the revocation was May 2, 1994, and the hearing was not held on that date. Instead, on the State’s motion, the hearing was continued until May 27, 1994, and appellant’s attorney did not object to the continuance. If there was a waiver of the sixty-day time limit for holding the hearing, it had to occur when the hearing was continued on May 2; therefore, the case of Summers v. State, supra, does not really apply to this case. That case held that a waiver of the time limit occurred because the State was not put on notice that the sixty-day statutory period would be invoked. The court said that this lack of notice prevented the State from having the opportunity to present evidence regarding whether there was a delay in returning Summers to Arkansas which would prevent the running of the time period. No such problem is involved in this case.
Actually, the case of Haskins v. State, 264 Ark. 454, 572 S.W.2d 411 (1978), relied upon by the State, is really more in point here. In Haskins there was no objection at all in the trial court to the fact that the revocation hearing was held more than sixty days after the arrest of Haskins. Here, of course, there was an objection — and motion to dismiss — but after the sixty-day period had run. The State in its brief recognizes that neither Summers nor Haskins really controls the present case, and its brief states, “These precise facts seem to constitute a case of first impression.”
When we start with the appellant’s first appearance before the court — the preliminary hearing provided by Ark. Code Ann. § 5-4-310(a) (Repl. 1993) to determine whether there is reasonable cause for further revocation proceedings — we see that the revocation hearing was set for the sixtieth day thereafter, as computed by Ark. Rule. Crim. 1.4. Thus, under the “precise facts” in this case, the crucial point, as to waiver of the time limit for holding the revocation hearing, was May 2, 1994, at which time the hearing was continued and reset for May 27, 1994, and it is a mistake to rely on Summers v. State and hold that the failure to make the motion until after the hearing started on that day constituted a waiver of the sixty-day time limit. The reasoning in Summers does not apply here because the sixty-day period had already expired by May 27, 1994.
Therefore, I think we must look to May 2, 1994, for our answer under the precise facts in this case. Now it is clear that a defendant has a constitutional right to counsel at a revocation hearing. See Furr v. State, 285 Ark. 45, 685 S.W.2d 149 (1985) (holding that under Mempa v. Rhay, 389 U.S. 128 (1967), counsel is required at every stage of a criminal proceeding where substantial rights of a defendant may be affected). The record and appellant’s abstract show that on May 2, 1994, the hearing began by the court announcing that “Ricky Wilkerson is in jail.” The State then informs the court that the State is anticipating filing an amended petition for revocation and asked for a continuance. The court then called for “response from the defense,” and appellant’s appointed attorney said, “I’ve got no objection to that, Your Honor.” The court then said, “All right, Reset May 27.”
Now the second problem I have with the majority’s decision in this case results from the fact that the appellant at the preliminary hearing was clearly unhappy with the fact that he was going to have to sit in jail until his revocation hearing sixty days later, and both the court and appellant’s counsel, appointed and present at the preliminary hearing, knew that. However, on May 2, 1994, while the appellant was in jail and not in court, the judge granted (and appellant’s counsel said he had no objection) a continuance and resetting which extended the sixty-day period in which to have the revocation hearing by a period of twenty-five days. One of two things seems clear to me: either counsel had a good reason for not objecting to the continuance, or he failed to provide effective assistance to appellant.
Both this court and our supreme court have looked to the rules providing for speedy trial of criminal charges for guidance in cases involving the application of the statutory sixty-day period for revocation hearings. See Lark v. State, 276 Ark. 441, 637 S.W.2d 529 (1982); Cheshire v. State, 16 Ark. App. 34, 696 S.W.2d 322 (1985). And in this regard, in the case of Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984), an appeal from the trial court’s refusal to grant post-conviction relief, the Arkansas Supreme Court held that the failure of appellant’s counsel to move for dismissal at the time the prosecution was barred by the speedy-trial rule constituted ineffective assistance of counsel. Even though the defendant had waived his right to a speedy trial and entered a plea of guilty, our supreme court said, “counsel at the time of the plea offered no testimony of trial strategy or other reason for the failure to assert the right to a speedy trial, and the appellant did not knowingly and intelligently waive his right to a speedy trial.” And based on the same reasoning, in Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986), the Arkansas Supreme Court granted post-conviction relief where the speedy-trial time had expired and concluded as follows:
We thus hold the failure to make the dismissal motion was ineffective assistance of counsel, the defendant suffered prejudice from it, and we have no alternative but to reverse the conviction and dismiss the case.
See also Clark v. State, 274 Ark. 81, 621 S.W.2d 857 (1981).
It is, of course, true that this case is not a Rule 37 post-conviction case. But under the precise facts in this case, I would hold that the appellant did not waive the sixty-day period for his revocation hearing. It is clear that he was not consulted about the matter when the State asked for a continuance on May 2, 1994. Since that was the last day of the sixty-day period and the State asked for the continuance, I would hold that because the record shows nothing from which we can find that the appellant actually knew that his attorney waived the right to have the hearing within the sixty-day period, his counsel’s waiver was not sufficient.
As the majority opinion states, appellant’s counsel argued to the trial court, after the motion to dismiss was finally made, that under the confusing circumstances present in this case, he made the motion to dismiss as soon as he became aware that appellant’s arrest was for probation revocation. I do not fault the trial court’s finding that this was not a good excuse. But I do think that the trial court should have granted the motion to dismiss because on the facts in this case the appellant did not waive the right to have his revocation hearing within sixty days of his arrest.
I would reverse and dismiss the petition for revocation.
COOPER, J., joins in this dissent. | [
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JOHN Mauzy Pittman, Judge.
The appellants, Dayton and Betty Moses, appeal from a chancery court order holding that the appellee, Ella Dautartas, proved adverse possession of land to which appellants hold legal title. We affirm.
The parties to this appeal own adjoining property in the Quinn’s Lake Park Subdivision in Garland County. Appellee filed a complaint in May 1993, claiming ownership by adverse possession to a narrow strip of land on the western edge of appellants’ property. Appellee asserted that she had utilized and maintained the area for over seven years and that a portion of a concrete drainage system she had constructed had been located in the area since 1985. No one resided on appellants’ property until appellants bought it in June 1992 and built a house. This action was filed after appellants built a fence in the disputed area.
It is well setded that, in order to establish title by adverse possession, appellee had the burden of proving that she had been in possession of the property continuously for more than seven years and that her possession was visible, notorious, distinct, exclusive, hostile, and with intent to hold against the true owner. The proof required as to the extent of possession and dominion may vary according to the location and character of the land. It is ordinarily sufficient that the acts of ownership are of such a nature as one would exercise over her own property and would not exercise over that of another, and that the acts amount to such dominion over the land as to which it is reasonably adapted. Whether possession is adverse to the true owner is a question of fact. See Walker v. Hubbard, 31 Ark. App. 43, 787 S.W.2d 251 (1990); Hicks v. Flanagan, 30 Ark. App. 53, 782 S.W.2d 587 (1990). Although this court reviews chancery cases de novo on the record, it does not reverse the decision of a chancellor unless the chancellor’s findings are clearly against the preponderance of the evidence, giving due deference to the chancellor’s superior position to judge the credibility of the witnesses and the weight to be given their testimony. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991); Appollos v. Int’l Paper Co., 34 Ark. App. 205, 808 S.W.2d 786 (1991).
Appellee, who purchased her property in 1972, testified that she and her son, Ray Dautartas, began living on the property in 1976. She stated that during the following years, she and her son utilized and maintained the disputed area by stacking lumber and roof shingles there, by mowing and raking the area, by burning leaves there, and by uprooting a tree in the area in 1982. Appellee also stated that her use of the area could be seen from the road and that there were no objections to the use. In addition, appellee presented bills dated in 1985 for the construction of the concrete drainage system, which curves around her garage and is partly in the disputed area. She testified that an underground pipe was later installed in the area to improve the drainage system. Ray Dautartas testified that he cut grass and raked leaves in the area and also used it as a storage area for firewood and shingles. He stated that the woodpile was approximately four feet high and sixteen feet long. Wade Spainhour, who surveyed the property for appellee, testified that he saw landscape timber and part of the drainage system in the area. He stated that appellee’s property to the east of the area was wooded with normal ground cover but that there was ground ivy in the disputed area, resulting in that area looking “different.”
Appellant Dayton Moses testified that he and his wife bought their property in May 1992 and built a house there. He stated that during the construction of the house, appellee complained that a construction worker had intruded on her property. He also stated that he did not see any maintenance or use of the disputed area by appellee. Mr. Moses testified that aside from trash such as cans, broken glass, dumped concrete, and a half-buried tire, the only thing he saw in the area was a tree that had been uprooted and a pile of dirt. He stated that when appellee offered to buy a portion of the disputed area, he refused to sell it. Appellant Betty Moses testified that she saw no sign of maintenance in the area.
James Stevens, whose grandmother owned the Moses’ property for many years prior to her death in 1990, testified that he gave the property a “cursory overview” every four months. He stated that he did not see stacks of wood and shingles or anything else unusual in the disputed area.
The chancellor, who viewed the property, stated in a letter opinion that pursuant to the survey presented by Mr. Spainhour and her inspection of the property, the concrete drainage structure clearly encroached on appellants’ property and had done so in excess of seven years. The chancellor stated that appellee and her son “presumed their encumbrances were proper and immediately took action when those encroachments were challenged by [appellants].” After discussing in detail the testimony presented at trial, the chancellor concluded that the evidence showed “that for over seven years the area in dispute was utilized by [appellee] with a clear, distinct and unequivocal intention that the disputed area belonged to her. Moreover, no one challenged the use of this land and, further, the existence of the underground pipe and concrete structure is not disputed.”
On appeal, appellants concede that appellee met her burden in showing adverse possession of “the two or three square feet of concrete in her garage drainage system that are obviously over the line.” Appellants argue, however, that appellee failed to show possession to the full extent of the land she claimed. The appellee, who makes her claim without color of title, responds that she presented sufficient evidence of her possession of the property and of her intent to hold adversely against the true owner.
The quantum of proof necessary for a trespasser to establish tide to land by adverse possession is greater where the trespasser has no color of title. DeClerk v. Johnson, 268 Ark. 868, 596 S.W.2d 359 (Ark. App. 1980). When one is claiming without color of tide, as appellee does here, she must show pedal or actual possession to the extent of the claimed boundaries for the required seven years. Id. Appellants appear to be arguing that appellee was required to place a structure or improvement on the disputed area. We do not agree. The difference between claiming adversely with and without color of title was discussed in Clark v. Clark, 4 Ark. App. 153, 632 S.W.2d 432 (1982), as follows:
One who enters adversely under color of title and actually possesses any part of the tract is deemed to have constructive possession of the entire area described in the document constituting color of title. St. Louis Union Trust Co. v. Hillis, 207 Ark. 811, 182 S.W.2d 882 (1944). Where one enters adversely upon an enclosed tract his possession of any part thereof is constructive possession of the entire enclosure. Kieffer v. Williams, 240 Ark. 514, 400 S.W.2d 485 (1966). Where, as here, one enters with neither color of title nor enclosure he is unaided by constructive possession and his claim is limited to that area over which he maintains actual pedal possession. DeClerk v. Johnson, 268 Ark. 868, 596 S.W.2d 359 (1980).
4 Ark. App. at 159-60, 632 S.W.2d at 436-37. Here, appellee claimed actual possession of the disputed area, not constructive possession.
In light of the total circumstances of this case, we find that the chancellor’s findings are not clearly against a preponderance of the evidence. The chancellor noted in the letter opinion that appellee’s son corroborated appellee’s testimony and stated:
Specifically, he testified that he worked on the property, cutting grass, raking leaves, cutting and hauling wood and also storing shingles for roofing on the disputed land. He testified that the pile of lumber and wood as well as the shingles were placed in broad daylight behind the garage on the now disputed property, and no one ever challenged his or his mother’s use of the land for those purposes. The woodpile was highly visible, he stated, for it was at least sixteen feet long and four feet high.
The chancellor also discussed Mr. Stevens’ testimony that there was no visible sign of encroachment on his grandmother’s property. Although the chancellor described the testimony as credible, she stated: “[H]owever, he was unable to deny the existence of the concrete drainage structure as well as the drainage pipe. These actual encroachments were over seven years old and were readily visible upon the Court’s inspection of the property.”
In the dissent’s view, this case must be reversed and remanded to cure a perceived inconsistency between the chancellor’s letter opinion and the final judgment. We find this view to be flawed in several respects. First, the chancellor’s findings in the letter opinion clearly did not constitute a judgment.
The decisions, opinions, and findings of a court do not constitute a judgment or decree. They merely form the bases upon which the judgment or decree is subsequently to be rendered and are not conclusive unless incorporated in a judgment or a judgment be entered thereon. They are more in the nature of the verdict of a jury and no more a judgment than such a verdict.
Thomas v. McElroy, 243 Ark. 465, 469-70, 420 S.W.2d 530, 533 (1967) (citations omitted). See also Mason v. Mason, 319 Ark. 722, 895 S.W.2d 513 (1995). A final determination of the parties’ rights was not made until the entry of the judgment. Second, the issue of any inconsistency between the chancellor’s letter and the final judgment was neither raised by objection or motion below nor raised by the parties on appeal. Even if the trial court were in error, it cannot be seriously argued that the case should be reversed because to do so would require the application of the “plain error” doctrine, which we do not have in Arkansas. Security Pac. Housing Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993); Lynch v. Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993); Pharo v. State, 30 Ark. App. 94, 783 S.W.2d 64 (1990).
The exact boundaries and description of the claimed area are presented in Mr. Spainhour’s survey, and this description was incorporated into the final judgment. Appellee and her son testified that their activities covered this area. The chancellor viewed the area and assessed the credibility of the witnesses, and the court’s finding that appellee proved actual possession to the extent of the claimed boundaries is not clearly against a preponderance of the evidence.
Affirmed.
Jennings, C.J., and Mayfield and Rogers, JJ., agree.
Griffen and Neal, JJ., concur in part, dissent in part. | [
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JOHN E. Jennings, Chief Judge.
Sheila Rohrer, the appellant, was employed by the appellee, Hart’s Manufacturing Company, Inc. In November 1990, she sustained an on-the-job injury and subsequendy filed a claim with the Arkansas Workers’ Compensation Commission. In December 1991 she was fired. The parties settled appellant’s workers’ compensation claim in December 1993 by way of joint petition. In August 1994 appellant filed suit in Clay County Circuit Court, alleging that she had been discharged in retaliation for the filing of her workers’ compensation claim and seeking damages. In January 1995 the circuit court granted summary judgment for the appellee, holding that the suit was barred by the language of the earlier joint petition and barred by Ark. Code Ann. § 11-9-107. We disagree and reverse and remand.
In 1991 the Arkansas Supreme Court decided Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991). There the court held that an employee has a common-law action against his employer who fires him for claiming workers’ compensation benefits. The court has since followed its decision in Baysinger. See e.g., Mapco, Inc. v. Payne, 306 Ark. 198, 812 S.W.2d 483 (1991); Leggett v. Centro, Inc., 318 Ark. 732, 887 S.W.2d 523 (1994).
In 1993 the General Assembly passed Act 796, which eliminated the cause of action for retaliatory discharge. The Act, as codified in Ark. Code Ann. § 11-9-107 (Supp. 1995) provides, in part:
Any employer who -willfully discriminates in regard to the hiring or tenure of work or any term or condition of work of any individual on account of the individual’s claim for benefits under this chapter, or who in any manner obstructs or impedes the filing of claims for benefits under this chapter, shall be subject to a fine of up to ten thousand dollars ($10,000) as determined by the Workers’ Compensation Commission.
A purpose of this section is to preserve the exclusive remedy doctrine and specifically annul any case law inconsistent herewith, including but not necessarily limited to: Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991); Mapco, Inc. v. Payne, 306 Ark. 198, 812 S.W.2d 483 (1991); and Thomas v. Valmac Industries, Inc., 306 Ark. 228, 812 S.W.2d 673 (1991).
Section 41 of the Act provides that “the provisions of this Act shall apply only to injuries which occur after July 1, 1993.” The Act also declared its effective date to be July 1, 1993.
In Tackett v. Crain Automotive, 321 Ark. 36, 899 S.W.2d 839 (1995), the supreme court was faced with the question of the meaning of the word “injuries” as used in section 41 of Act 796. A majority held that the date of the injury was the date the worker was discharged from employment. The dissenting justices argued that the date of injury was the date the employee suffered a compensable injury at work.
In the case at bar, appellant was discharged in December 1991, long before the effective date of the Act. Therefore, by its terms, it is not applicable to her cause of action. The fact that her suit for damages was not filed until after the effective date of the Act is not determinative.
We also agree with the appellant that her claim is not barred by the language of the joint petition filed in the workers’ compensation proceeding. The language in the joint petition relied upon by the appellee as a bar states: “It is further expressly understood and agreed by the parties hereto that if this joint petition be approved by the Commission, Claimant will have no other claim against Hart’s of Arkansas or Wassau Insurance Companies under the Arkansas Workers’ Compensation Act of any nature[.]” The short answer to the appellee’s contention is that appellant’s suit in circuit court is not a “claim under the Arkansas Workers’ Compensation Act.” Appellant’s cause of action for retaliatory discharge is not barred by the language of the joint petition. For the reasons stated the decision of the trial court is reversed and the case is remanded for further proceedings.
Reversed and Remanded.
Robbins and Griffen, JJ., agree. | [
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John Mauzy Pittman, Judge.
The appellant, Randall Lowe, appeals from an order of the Arkansas Workers’ Compensation Commission denying his claim for medical benefits and temporary total disability benefits. He contends that the administrative law judge’s opinion, which the Commission adopted as its own, fails to set forth sufficient findings of fact to support the decision and that any findings that were made are not supported by substantial evidence. We agree with the first of these points, and we reverse and remand for the Commission to make specific findings of fact.
When the Commission denies compensation, it is required to make findings sufficient to justify that denial. Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986). A satisfactory, sufficient finding of fact must contain all of the specific facts relevant to the contested issue or issues so that the reviewing court may determine whether the Commission has resolved these issues in conformity with the law. Id. The Commission must find as facts the basic component elements on which its conclusion is based. Cagle Fabricating & Steel, Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992). While the Commission may specifically adopt the findings of fact made by the administrative law judge, it is necessary under such circumstances that the administrative law judge have made sufficient findings. See Hardin v. Southern Compress Co., 34 Ark. App. 208, 810 S.W.2d 501 (1991); ITT/Higbie Mfg. v. Gilliam, 34 Ark. App. 154, 807 S.W.2d 44 (1991).
A finding of fact sufficient to permit meaningful review is a “simple straightforward statement of what happened.” Wright, 18 Ark. App. at 21, 709 S.W.2d at 109. Neither “a statement that a witness, or witnesses, testified thus and so,” id., nor language by the Commission that is merely “conclusory and does not detail or analyze the facts upon which it is based” will suffice. Cagle Fabricating & Steel, Inc., 309 Ark. at 369, 830 S.W.2d at 859. In the present case, the opinion adopted by the Commission consists almost entirely of a narration of the testimony followed by the statement that “[t]he claimant did not sustain an injury arising out of and during the scope of his employment on October 9, 1992.”
Although labeled a finding of fact, the quoted statement was a conclusion of law. See Cagle Fabricating & Steel, Inc. v. Patterson, supra. A claimant is entitled to know the factual basis upon which his claim is denied, Jones v. Tyson Foods, Inc., 26 Ark. App. 51, 759 S.W.2d 578 (1988), and cases lacking this degree of specificity will be remanded for a decision based upon a specific finding. Belcher v. Holiday Inn, 49 Ark. App. 64, 896 S.W.2d 440 (1995). Here, while it may be that the Commission determined that appellant, apparently the only witness to the alleged accidental injury, was not a credible witness, the opinion does not so state. As we are unable to determine the facts upon which the Commission relied in reaching its conclusion, we reverse and remand for the Commission to make specific findings of fact.
Reversed and remanded.
Cooper and Rogers, JJ., agree. | [
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John Mauzy Pittman, Judge.
Robert Kimble has appealed from a summary judgment entered for appellee, Pulaski County Special School District, in his wrongful discharge action. On appeal, appellant argues that his employment was not terminable at will. We disagree and affirm the circuit court’s decision.
Appellant was employed by appellee as a custodian at Mills High School in the 1991-92 school year. His written contract of employment provided: “The employment shall commence on the first day of August, 1991. Subject to the other terms of this agreement, the employment will be for a maximum of 233 days....” Under the “special conditions” listed in the contract, it was provided: “Both parties agree that this contract may be terminated at any time by either party by giving oral or written notice to the other party.”
In February 1992, the high school was damaged by fire. After the principal investigated the fire’s origin, he informed appellee that appellant had been negligent in his duties. Appellant was then notified by appellee’s superintendent that he was being recommended for immediate termination because he had ignored a fire alarm. Appellant was given a termination hearing on March 11, 1992, and was then discharged.
In February 1994, appellant filed this wrongful discharge action against appellee, alleging that he had been terminated in violation of his contract. He also sought recovery for certain tort claims.
Appellee moved for summary judgment, relying on Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982), wherein the Arkansas Supreme Court recognized that, generally, when the term of employment is left to the discretion of either party, or left indefinite, or terminable by either party, either party may put an end to the relationship at mil and without cause. In response, appellant stated: “Ark. Code Ann. § 6-17-1701, et seq., known as the Public School Employee Fair Hearing Act, is applicable to this case and has bearing on the question of ‘at will’ employment.” Although appellant abandoned his tort claims, he argued that questions of fact remained as to his breach of contract claim. In its reply, appellee argued that, although the Public School Employee Fair Hearing Act provides that school districts must offer minimum due process to employees recommended for termination, it has not modified the employment-at-will doctrine.
The circuit judge agreed with appellee, stating:
Plaintiff was employed by the Pulaski County Special District under a written employment contract, which provided for employment up to a maximum of 233 days, but also provided that both Plaintiff and the District reserve the right to terminate the contract at any time upon notice to the other party. Accordingly, Plaintiff’s employment with the District was “at will” and either party, Plaintiff or the District, was entitled to terminate the Plaintiff’s contract at any time and for any reason or no reason.
Summary judgment should be granted only when a review of the pleadings, depositions, and other filings reveals that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Johnson v. Harrywell, Inc., 47 Ark. App. 61, 885 S.W.2d 25 (1994). In considering a motion for summary judgment, the court may also consider answers to interrogatories, admissions, and affidavits. Muddiman v. Wall, 33 Ark. App. 175, 803 S.W.2d 945 (1991). When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. Johnson v. Harrywell, Inc., 47 Ark. App. at 63. In appeals from the granting of summary judgment, this court reviews facts in the light most favorable to the appellant and resolves any doubt against the moving party. Id. 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. Id. On appellate review, this court need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of a motion left a material question of fact unanswered. Id.
Appellant focuses his appeal on two arguments: (1) that his employment was not terminable at will because it was for a definite period of time; and (2) that the Public School Employee Fair Hearing Act has altered the employment-at-will doctrine.
Appellee concedes that the employment contract was for a definite term, even though it provided that appellant would be employed for a “maximum of 233 days.” We therefore need not determine the effect of the words “maximum of” in establishing whether the contract was for a definite term.
Arkansas Code Annotated § 6-17-1703 (Repl. 1993) provides:
(a) The superintendent of a school district may recommend termination of an employee during the term of any contract, or the nonrenewal of a full-time nonprobationary employee’s contract, provided that he gives notice in writing, personally delivered, or by letter posted by registered or certified mail to the employee’s residence address as reflected in the employee’s personnel file.
(b) The recommendation of nonrenewal of a full-time nonprobationary employee’s contract shall be made no later than thirty (30) calendar days prior to the beginning of the employee’s next contract period.
(c) Such written notice shall include a statement of the reasons for the proposed termination or nonrenewal.
(d) The notice shall further state that an employee being recommended for termination, or a full-time nonprobation-ary employee being recommended for nonrenewal, is entitled to a hearing before the school board upon request, provided such request is made in writing to the superintendent within thirty (30) calendar days from receipt of said notice.
Where statutory language is clear and unambiguous, the task of the appellate court is to follow the statute, not interpret it. Public Employee Claims Div. v. Chitwood, 324 Ark. 30, 918 S.W.2d 163 (1996). Generally, the law of this state is that ah employer or an employee may terminate an employment relationship at will. Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991). Under the employment-at-will doctrine, an at-will employee may be discharged for good cause, no cause, or even a morally wrong cause. Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991). Although the employment-at-will doctrine has been modified in some respects, as discussed below, Griffin v. Erickson, as it applies to this case, continues to represent the law of this state. There, the supreme court discussed the history of the employment-at-will doctrine in this state and stated:
It is generally, perhaps uniformly, held that when the term of employment is left to the discretion of either party, or left indefinite, or terminable by either party, either party may put an end to the relationship at mil and without cause. See cases cited in 56 Corpus Juris Secundum, Master-Servant, § 31, p. 412 and 53 American Jurisprudence 2nd, Master-Servant, § 17, p. 94. It has been stated generally that employment is held only by mutual consent, and that at common law the right of the employer to terminate the employment is unconditional and absolute. Jefferson Electric Company v. N.L.R.B., 102 F.2d 949 (1939).
Generally, a contract of employment for an indefinite term is a “contract at will” and may be terminated by either party, whereas a contract for a definite term may not be terminated before the end of the term, except for cause or by mutual agreement, unless the right to do so is reserved in the contract. Little v. Federal Container Corporation, 452 S.W.2d 875 (Ct. of App. Tennessee, 1969).
Our own cases have adhered to this principle, that either party has an absolute right to terminate the relationship. Miller v. Missouri Pacific Transportation Company, 225 Ark. 475, 283 S.W.2d 158 (1955), Moline Lumber Company v. Harrison, 128 Ark. 260, 194 S.W. 25 (1917), St. Louis, I.M. and S.R. Company v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897). Federal decisions applying Arkansas substantive law in this field are: Tinnon v. Missouri Pacific Railroad Company, 282 F.2d 773 (8th Cir. 1960); Cato v. Collins, 539 F.2d 656 (8th Cir. 1976), and Clark v. Mann, 562 F.2d 1104 (8th Cir. 1977). Nor does the fact that the employment is public rather than private alter the rule. Ruggieri v. City of Somerville, 405 N.E.2d 982 (Mass. 1980). Board of Regents v. Roth, 408 U.S. 564 (1972), and Mittlestaedt v. Board of Trustees of the University of Arkansas, 487 F.Supp. 960 (1980).
It is quite clear, therefore, that in the absence of some alteration of the basic employment relationship, an employee for an indefinite term is subject to dismissal at any time without cause.
277 Ark. at 436-37, 642 S.W.2d at 310.
In Newton v. Brown & Root, 280 Ark. 337, 658 S.W.2d 370 (1983), the court stated: “It is generally held that, when the term of employment is indefinite, or at will (terminable by either party), either the employer or the employee may put an end to the relationship at will and without cause.”
In Gladden v. Arkansas Children's Hospital, 292 Ark. 130, 728 S.W.2d 501 (1987), the supreme court modified the employment-at-will doctrine to provide that, where an employee hired for an indefinite term relies on a personnel manual or employment agreement that expressly states that he or she cannot be discharged except for cause, the employee may not be arbitrarily discharged in violation of such a provision. The court stated:
We do, however, believe that a modification of the at will rule is appropriate in two respects: where an employee relies upon a personnel manual that contains an express provision against termination except for cause he may not be arbitrarily discharged in violation of such a provision. Moreover, we reject as outmoded and untenable the premise announced in St. Louis Iron Mt. Ry. Co. v. Matthews, 64 Ark. 398, 42 S.W 902 (1897), that the at will rule applies even where the employment agreement contains a provision that the employee will not be discharged except for cause, unless it is for a definite term. With those two modifications we reaffirm the at will doctrine.
... We have come to the conclusion that an implied provision against the right to discharge is not enough. The firm rule at common law is that either party can terminate at will and while the rule has been criticized, 24 Arkansas Law Review 729, 93 Harvard Law Review 1816, we are unwilling to replace it with a rule that subjects the employer to suit for wrongful discharge whenever an employee is terminated.
292 Ark. at 136, 728 S.W.2d at 505. See also Mertyris v. P.A.M. Transport, Inc., 310 Ark. 132, 832 S.W.2d 823 (1992); Crain Indus., Inc. v. Cass, supra.
In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), the supreme court held that, if an employee is discharged for exercising a statutory right, or for performing a duty required by law, or the reason for the discharge was in violation of some other well-established public policy, it would recognize the employee’s wrongful discharge claim as an exception to the employment-at-will doctrine. Accord Webb v. HCA Health Servs. of Midwest, Inc., 300 Ark. 613, 780 S.W.2d 571 (1989); Koenighain v. Schilling Motors, Inc., 35 Ark. App. 94, 811 S.W.2d 342 (1991).
In Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991), the court held that an employer violates the public policy of this state in discharging an employee for making a claim for workers’ compensation benefits. In that case and in Leggett v. Centro, Inc., 318 Ark. 732, 887 S.W.2d 523 (1994), which followed it, the supreme court again stated that, when the term of employment in a contract is left to the discretion of either party, or left indefinite, or terminable by either party, either party may put an end to the relationship at will and without cause. In Tackett v. Crain Automotive, 321 Ark. 36, 899 S.W.2d 839 (1995), the supreme court recognized that, by Act 796 of 1993, the General Assembly had eliminated the cause of action for retaliatory discharge described in Wal-Mart Stores, Inc. v. Baysinger, supra.
Griffin v. Erickson was also cited in City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 154 (1994); Smith v. American Greetings Corp., supra; Proctor v. East Central Arkansas EOC, 291 Ark. 265, 724 S.W.2d 163 (1987); Bryant v. Southern Screw Machine Products Co., 288 Ark. 602, 707 S.W.2d 321 (1986); and Riceland Foods, Inc. v. Director of Labor, 38 Ark. App. 269, 832 S.W.2d 295 (1992).
We do not believe that the Public School Employee Fair Hearing Act has modified the employment-at-will doctrine. Both City of Green Forest v. Morse, supra, and Leggett v. Centro, Inc., supra, were decided after the statute was enacted; both of these cases indicated that a contract is terminable at will when the term of employment is left to the discretion of either party, or left indefinite, or terminable by either party.
Accordingly, we hold that, even though appellee admits that appellant’s contract was for a definite term, it was terminable at will by either party for any reason, provided notice and a hearing were given. In his complaint, appellant admitted that he was given notice of the reason for his termination and was provided with a hearing.
We find no error in the entry of summary judgment for appellee.
Affirmed.
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WENDELL L. Griffen, Judge.
This appeal arises from separate rape convictions of the same defendant, Johnnie Morris. On November 28, 1994, appellant Morris was convicted of the June 18, 1994, rape, battery, and kidnapping of Jane Doe . One week later, Morris was convicted of the February 17, 1994, rape of Mary Roe. The Roe rape, although it occurred first, was tried second.
Morris raises three points on appeal. First, he argues that the trial court abused its discretion when it allowed into evidence Jane Doe’s testimony about an alleged threat that Morris communicated to her the day after she was raped. Appellant also asks us to reverse the court’s denial of his motion in limine which sought to limit the scope of testimony from Jane Doe, his second victim, in the rape trial involving the attack on Mary Roe. Third, appellant asks us to correct an error in the judgment and commitment order that mistakenly listed the kidnapping charge as a Class Y, instead of a Class B, felony. We affirm the first two points and modify the judgment to reflect the appropriate felony class on the third point.
Jane Doe was raped at appellant’s residence on June 18, 1994. She reported the attack to the police, and an article concerning a reported rape appeared in a local newspaper the next day. At the rape trial, appellant’s counsel sought to exclude Doe’s testimony concerning a telephone conversation that appellant had with her after the newspaper article appeared. Appellant allegedly mentioned to her during the conversation that if she had reported a rape, and accused him, then he would be tried for murder rather than rape. Appellant objected to her testimony regarding his post-crime statements on relevancy grounds.
Evidence of post-crime conduct has been held relevant and admissible in a variety of contexts under Arkansas law. A defendant’s hostility and anger after the killing of his victim was held relevant to show intent. Segerstrom v. State, 301 Ark. 314, 783 S.W.2d 847 (1990). In a sexual-abuse case, evidence of the victim’s fear and repulsion after the attack was deemed relevant to the issue of consent. Skiver v. State, 37 Ark. App. 146, 826 S.W.2d 309 (1992). Even conduct of a defendant on the day of trial was relevant to show guilt. Morris v. State, 21 Ark. App. 228, 731 S.W.2d (1987). Objections to circumstantial evidence on grounds of irrelevancy are not favored because the force and effect of circumstantial facts usually and almost necessarily depend upon their connection with each other. Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 (1976).
The trial court did not abuse its discretion by admitting the testimony of appellant’s threat. Relevant evidence is evidence having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401. The fact that the threat occurred the day after the crime made it no less relevant to the issues of consent, intent, or guilt.
Because it was not an abuse of discretion to admit the evidence, we also hold that it was not an abuse of discretion to deny appellant’s motion for a mistrial. A mistrial is a drastic remedy to which resort should be had only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994). The denial of appellant’s motion for a mistrial is affirmed.
Appellant’s second point on appeal involves his motion in limine in the second (Mary Roe) rape case. He sought to present testimony from Jane Doe, the victim in the first rape case, that she was knocking on appellant’s bedroom window about the time of the Mary Roe rape, and that she heard nothing unusual. Appellant sought to present this testimony to show consent in the Mary Roe case, but wanted also to limit the testimony to avoid any reference Jane Doe might make to her own rape that occurred in the same bedroom five months later.
The trial court denied appellant’s motion in limine. Appellant then elected not to present testimony from Jane Doe. On appeal, appellant assigns error to the trial court’s denial of the motion, and he contends that he should not have been forced to make the Hobson’s choice between presenting testimony from a witness with both exculpatory and inculpatory information and presenting no testimony from that witness at all. However, the denial of a motion in limine, by its very nature, often leaves the proponent of the evidence with several choices, any of them potentially unfavorable. The proponent may decide to forego presenting any proof from the witness. He may decide to present the proof through another source deemed less damaging. Or, the proponent may decide to run the risk of the damaging testimony in the hope that the trier of fact will give it less weight than the testimony that is not damaging. This dilemma is not improper, however uncomfortable it may be for the party affected by it. Here, the court’s ruling did not deny a right or compel appellant’s decision one way or the other. Whether to put Jane Doe on the stand or not was a matter of trial strategy — a process that trial lawyers and their clients must undertake in every trial. It was not an abuse of discretion for the court to decline to immunize appellant from making that choice and facing its consequences.
For his final point, appellant urges us to correct the judgment and commitment order that listed appellant’s kidnapping charge as a Class Y felony. Appellant points us to Ark. Code Ann. § 5—011—102(b) (Repl. 1993) which classifies kidnapping as a Class Y felony “except that if the defendant shows by a preponderance of the evidence that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial, it is a Class B felony.” The jury specifically found that appellant voluntarily released Jane Doe “alive and in a safe place.” Appellant asserts, and appellee agrees, that the correct classification of kidnapping on these facts should have been Class B.
An error which relates only to punishment may be corrected by reducing the sentence in lieu of reversing and remanding for a new trial. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992). By statute, this court may also reverse, affirm, or modify the judgment or order appealed from, in whole or in part and as to any or all parties. Ark. Code Ann. § 16-67-325(a) (1987). Accordingly, we modify the judgment and commitment order to reflect kidnapping as a Class B felony in this matter. Otherwise, the judgment is affirmed.
Affirmed as modified.
Mayfield, J., agrees.
Pittman, J., concurs in the result.
The victims’ real names have been changed.
The trial court was obviously struck by the irony of the prospect of a rape victim testifying in defense of her attacker in a subsequent proceeding. The court characterized this turn of events as “unfair,” “misleading to the jury,” and “heinous” | [
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JAMES R. Cooper, Judge.
The appellant in this unemployment compensation case was employed by Leather Brothers, Inc., buckling dog collars. After the appellant had been so employed for approximately one and one-half years, her foreman advised her that her hours would be reduced to half time. The appellant worked eleven and one-half hours the following week and, after the conclusion of her last work day, informed her foreman that she had located a full-time job and was quitting. Subsequently, she filed a claim for unemployment benefits which the Board of Review denied on the ground that she had quit her last work without good cause connected with the work. From that decision, comes this appeal.
For reversal, the appellant contends that the Board erred in finding that she quit her last job without good cause connected with the work. We affirm.
Whether there was good cause for an employee to quit his job is a question of fact. Morton v. Director, 22 Ark. App. 281, 742 S.W.2d 118 (1987). In determining the sufficiency of the evidence to sustain the findings of the Board of Review, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings and affirm if they are supported by substantial evidence. Perdrix- Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Even when there is evidence upon which the Board might have reached a different decision, the scope of our judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
In the case at bar, the Board based its finding that the appellant lacked good cause for quitting on the appellant’s failure to make further inquiries concerning her decrease in hours. In this context we think it significant that the appellant’s supervisor originally informed her that the reduction in work hours was something that the employer wanted to “try,” and that it was the employer’s intention to move the appellant back to full-time employment after the week of half-time work.
“Good cause” depends not only on the good faith of the employee involved (which includes the presence of a genuine desire to work and be self-supporting), but also on the reaction of the average employee. Perdrix-Wang v. Director, supra; see McEwen v. Everett, 6 Ark. App. 32, 637 S.W.2d 617 (1982). Another element of “good cause” is whether the employee took appropriate steps to rectify the problem. McEwen v. Everett, supra. Given these considerations, we cannot say that the Board’s finding that the appellant quit without good cause connected with the work is not supported by substantial evidence.
Affirmed.
Pittman and Robbins, JJ., agree.
Rogers, Stroud, and Griffen, JJ., dissent.
Arkansas Code Annotated § 11-10-513 (1987) provides that an employee who left his last work voluntarily and without good cause connected with the work shall be disqualified for benefits. | [
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Josephine Linker Hart, Judge.
Magnet Cove School
District and Risk Management Resources appeal the order of the Arkansas Workers’ Compensation Commission, finding that the appellee’s average weekly wage should be calculated by dividing her salary by thirty-nine weeks and not fifty-two weeks. For reversal, appellants argue that the Commission erred by failing to divide her salary by fifty-two weeks. We disagree and affirm.
Appellee, Shirley Barnett, entered into an employment contract as a teacher with appellant Magnet Cove School District. The contract provided that appellee work 188 days during the nine-month period from August 1999 to May 2000 for a total salary of $26,500 to be paid in twelve monthly installments. During January of 2000, appellee sustained an injury to her left knee. Appellants accepted the injury as compensable and paid $339 each week for temporary total disability benefits and also paid $254 each week for permanent partial disability benefits based on an impairment rating of 14% to the lower extremity. Appellee challenged the award before the administrative law judge, contending that her average weekly wage was $718.08 based upon a salary of $27,000 earned over a period of nine months. Appellants contended that appellee’s average weekly wage was $508 based-upon a salary at the time of her injury of $26,500 paid over the fiscal year of fifty-two weeks. The ALJ determined that appellee’s average weekly wage was $679.49. This calculation was made by the ALJ dividing appellee’s total compensation of $26,500 by the thirty-nine weeks designated in appellee’s employment contract.
On appeal, the Commission adopted the findings and conclusions of the ALJ.
In reviewing a decision of the Workers’ Compensation Commission, this court views the evidence and all reasonable inferences in the light most favorable to the findings of the Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). These findings will be affirmed if supported by substantial evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). On an appeal from the Workers’ Compensation Commission, the question is not whether the evidence would have supported findings contrary to those of the Commission; rather, the decision of the Commission must be affirmed if reasonable minds might have reached the same conclusion. See Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001); Barnett v. Natural Gas Pipeline Co., 62 Ark. App. 265, 970 S.W.2d 319 (1998).
Appellants contend that the Commission’s determination of appellee’s average weekly wage was clearly erroneous. Appellants argue that appellee is paid over fifty-two weeks of the year, and therefore, it is against public policy for the Commission to award her benefits based upon her employment period of thirty-nine weeks. In support of this argument, appellants note that if appel-lee’s average weekly wage is based upon thirty-nine weeks, the payment she would receive computes to more than 66 2/3% of her wages as outlined in Arkansas Code Annotated section 11 — 9— 501(b) (Repl. 2002). That statute provides in pertinent part that “the total disability rate shall not exceed sixty-six and two-thirds’ percent (66 2/3%) of the employee’s average weekly wage . . . .” According to appellants, 66 2/3% of $26,500 is $17,675 and is the amount appellee would receive if granted temporary total disability benefits for a period of fifty-two weeks. Thus, appellee would, according to appellant’s calculations, receive more than 66 2/3% of her salary if her average weekly wage is calculated based on thirty-nine weeks, and she was to be awarded benefits for one year.
In its decision, the Commission found that appellee’s average weekly wage was $679.49, as calculated by dividing the total compensation of $26,500 by thirty-nine weeks in the designated nine-month period of employment pursuant to the contract of hire in force at the time of the accident. The Commission did note that appellee was paid in twelve installments over a period of fifty-two weeks. However, the contract only provided employment for 188 days of school during a nine-month period from August 1999 to May 2000.
The Commission also found appellants’ argument that appel-lee’s daily pay rate was $102 was inconsistent with the testimony of Rebecca Moore, district bookkeeper for the Magnet Cove School District. Moore testified that appellee would be docked $143.62 per day for each day she was absent and did not have any sick leave, vacation leave or other leave remaining. The Commission cited Bond v. Lavaca School District, 73 Ark. App. 5, 38 S.W.3d 923 (2001) (reversed on other grounds), for the proposition that the daily rate of pay for a school teacher is calculated by dividing the contract salary by the number of days in a regular school year.
Appellee testified that she was employed as a first-grade teacher with the Magnet Cove School District, and she was required by the terms of her contract to be at school 188 days during the 1999-2000 school year. Appellee stated that during the 1999-2000 school year, she missed work after her leave was exhausted, and her pay was deducted at a rate of $143.62 each day.
In sum, appellants seek to require this court to determine that appellee’s weekly income is based on the date she received her pay and not the date she earned the pay. We decline to do so. The contract provided for appellee to teach 188 days, and further that she would be docked $143.62 per diem for any absences during any leave-without-pay status. Further, Arkansas Code Annotated section ll-9-518(a)(l) (Repl. 2002) states that “compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment.”
We also note that appellee incurred the injury and took time away from work during the school year. The question of benefits during the remainder of the year or during a time period when the employee is not under contract to work is not presented in this appeal and, thus, is not addressed in this opinion. Based on the facts presented, we cannot say that the Commission’s decision was not supported by substantial evidence.
As a final matter, appellee states that this court does not have jurisdiction to hear an appeal from the Commission as the appellants are barred from seeking appellate review under the provisions of Arkansas Code Annotated section 6-17-1402(d) (Repl. 1999). Section 6-17-1402(d) states that the action taken by the Commission shall be final and binding on all parties and shall not he subject to judicial review. However, this statute, when read in conjunction with section 6-17-1401 (Repl. 1999) , only requires that school teachers who are injured while acting within the scope of their employment must file their claims under the Workers’ Compensation Act. The limitation set out in the statute provided that the Commission shall have exclusive authority to hear all work-related cases for employees of public schools, and that the Commission’s exclusive authority is not subject to judicial review. Therefore, the limitation does not preclude school district employees or their employer from seeking appellate review of the Commission’s decision.
We note that Arkansas Code Annotated section 11 — 9— 711(d) states that “the action taken by the commission with respect to the allowance or disallowance of any claim filed by a school district employee shall be subject to appeal to the circuit court as provided for in subsection (b) of this section.” Also, section 11-9-711(b) states in relevant part that a “compensation order or award of the commission shall become final unless a party to the dispute shall within thirty (30) days from receipt by him of the order or award, file notice of appeal to the Arkansas Court of Appeals, which is designated as the forum for judicial review of those orders and awards.” Although the two sections are obviously contradictory, we defer to our supreme court to resolve conflict.
Our supreme court has stated “[w]e decide the appellate jurisdiction of the Court of Appeals, not the legislature ... in Houston Contracting Co. v. Young, 271 Ark. 455, 609 S.W.2d 895 (1980), ... we found that the Court of Appeals was merely substituted for the Circuit Court as the first court to review an administrative order.” In Re: Amendment of Rule 29 l.d. of the Supreme Court and Court of Appeals, 288 Ark. 644, 704 S.W.2d 625 (1986) (per curiam). Therefore, this court has jurisdiction to address the merits of this case.
Affirmed.
Stroud, CJ., and Griffen, J., agree.
Appellants do not challenge the Commission’s determination that thirty-nine weeks approximates 188 days.
After a decision by the school board on May 8, 2000, her contract was amended to increase her salary by $500 for a total amount of $27,000.
The ALJ noted in his opinion that the total compensation was $26,500 rather than $27,000 because the contract in force at the time of the accident did not provide for the $500 increase because the school board did not take action to increase the contract price until May 8, 2000.
Arkansas Code Annotated section 6-17-803 (Repl. 1999) provides that Arkansas school districts may elect, at the option of the school board, to pay teachers either over the course of the ten-month school year or in twelve equal monthly installments.
Section 6-17-1401 (Repl. 1999) states that “workers’ compensation coverage as provided in § 11-9-101 et seq. shall be provided for personal injuries and death of officers and employees of public schools in this state.” | [
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Terry Crabtree, Judge.
This is an appeal from an order upholding the validity of a church meeting at which a majority of the congregation voted to dismiss appellant, Robert McCree, as their interim pastor. Appellant contends on appeal that the trial court’s decision is clearly against the preponderance of the evidence. We disagree and affirm.
This case involves a dispute within the New Mount Hebron Baptist Church in Camden, Arkansas. In April 2000, the church’s pastor and seventy-one of its members left to form a new, non-Baptist church. At that time, a majority of the congregation voted that the departing pastor and members would be allowed to take half of the church’s funds with them. A church meeting was held on April 14, 2000. Upon invitation, the meeting was conducted by Reverend E.A. Porchia, a moderator of the Ouachita Baptist District Association, an organization to which Mount Hebron Church belonged. At this meeting, a majority selected appellant to serve as the interim pastor. Later, a pulpit committee was formed for the purpose of finding a permanent minister.
Conflict arose almost immediately between appellant and members of the congregation. Chief among the problems was appellant’s decision to file suit to recover the money that had been given to the departing pastor and former members of the church. Another matter of concern was appellant’s decision to open another church bank account without consulting the membership or seeking its approval. A church meeting was held to address these and other concerns on May 9, 2001. A majority of those present voted to dismiss appellant as the interim pastor and to write the attorneys hired by appellant to inform them that the church had not authorized appellant to institute the litigation.
Appellant called a “special meeting” on May 12th. Reverend Porchia was again in attendance upon appellant’s invitation. Reverend Porchia advised the membership that the actions taken by them in the May 9 meeting were invalid on the ground that the meeting was not properly called because the meeting and its purpose were not announced for two weeks prior to its being held. As a result, the members voted to rescind appellant’s dismissal.
On July 24, another meeting was held at the church. Testimony was presented on behalf of appellees that the place, time, and purpose of the meeting were announced in church on two, consecutive Sundays by Willie Johnson, Chairman of the Board of Deacons. Witnesses for appellant stated that only one announcement was made by Deacon Johnson and that he did not state the purpose of the meeting in his announcement. All witnesses agreed, however, that after Deacon Johnson made an announcement, appellant called the proposed meeting “out of order” and declared that it would not be held. Nevertheless, thirty-seven members convened on the scheduled date. The meeting was conducted in the church parking lot because the doors to the church had been locked. A sheriff s deputy was called to the church, who had a phone call placed to appellant requesting that the doors be opened. Appellant advised, however, that the members had no business being there and that they should leave. In the parking lot, the members present unanimously voted to remove appellant as the interim pastor.
Appellant, however, refused to vacate the pulpit, and a few days later during a Bible study class appellant “silenced” those members who had been present at the July 24 meeting. It was said that a member who has been “silenced” is stripped of his or her voice in the church and is not allowed to vote on church matters.
In February 2001, a meeting was called for the purpose of selecting a permanent pastor. Some forty-five members were in attendance, and appellant was one of two candidates on the ballot. It is undisputed that appellant refused those members who had been silenced the opportunity to vote. Of the remaining twenty members who were permitted to vote, thirteen voted for appellant.
In June 2001, this lawsuit was filed seeking an order declaring that appellant was not the lawful pastor of the church and an injunction enjoining him from occupying the pulpit. An accounting was also requested. The trial court ruled that the meeting held on July 24, 2000, was valid, that appellant had been properly dismissed, and that any subsequent acts taken by appellant after that meeting, including the silencing of the members and his calling of the February 2001 meeting, were null and void. This appeal followed.
Flonoring the principle of keeping church and State separate, courts do not intervene to determine controversies relating to purely ecclesiastical or spiritual features of a church or religious society. Elston v. Wilborn, 208 Ark. 377, 186 S.W.2d 662 (1945). However, courts do not hesitate to assume jurisdiction when a schism affects property rights. Holiman v. Dovers, 236 Ark. 211, 366 S.W.2d 197 (1963).
Baptist churches are congregational churches in form and structure. Carter v. Phillips, 291 Ark. 94, 722 S.W.2d 590 (1987). In congregational churches, the affairs of a particular church are determined by the vote of the majority of the members of that church and not by some other hierarchical form of church government. Id. Each church is considered independent of any external authority with respect to its own affairs. Ables v. Garner, 220 Ark. 211, 246 S.W.2d 732 (1952). Our courts have followed the rule that where a minister of a congregational church is dismissed by the action of the majority of the church, and thereafter usurps the pastoral duties, the majority is entitled to an injunction to restrain him and to prevent him and his adherents from occupying and using the church without the consent of the majority. Rush v. Yancey, 233 Ark. 883, 349 S.W.2d 337 (1961).
On appeal, such cases are reviewed de novo, but the trial court’s findings will not be disturbed unless they are clearly against the preponderance of the evidence. Jones v. Bethlehem Baptist Church, 75 Ark. App. 152, 57 S.W.3d 217 (2001). Due deference is given to the superior position of the trial court to judge the credibility of the witnesses. Id.
In this appeal, appellant argues that the July 24 meeting was called in an improper manner. He bases his argument on testimony that meetings may only be called by the pastor, not by a deacon or any individual member of the church. It was further stated that, if the pastor refuses to call a meeting, then the members may override the pastor’s veto by voting to hold a meeting. Appellant contends that the meeting was invalid because, in light of his objection, there was no evidence that the members voted to have the meeting. We find no merit in appellant’s argument.
First, the trial court found that the meeting was properly called because the place, time, and purpose of the meeting were announced two weeks in advance and that this was the only requirement the majority deemed necessary to call a meeting. The trial court obviously rejected the testimony, as a matter of credibility, that there was an additional requirement that a majority must also meet and vote to call a meeting prior to the announcements. Even so, we note that there was testimony that a majority of the members did ask Deacon Johnson to call the meeting. Therefore, even accepting appellant’s view as to proper procedure, there was testimony that the procedure was followed. Moreover, the procedure appellant advocates came out of reference books used by the Ouachita Baptist Association. However, it is undisputed that the church membership had not specifically adopted those procedures and that the association had no authority over the church. Since the procedures appellant relies on had not been adopted by the church, and because the association cannot impose its own procedures upon the church, it cannot be said that the church was bound by the procedures appellant espouses. We further observe that appellant was elected to temporarily fill the vacancy in the pulpit. There was testimony that in that capacity appellant only had so much authority as the majority saw fit to give him. As shown by their actions, it is clear that the majority did not grant appellant the authority to prevent the calling of meetings and thereby allow him to occupy that position indefinitely, despite the will of the majority.
Affirmed.
Hart and Bird, JJ., agree.
The record, also shows that appellant silenced several other members who questioned appellant’s handling of church finances.
The financial records appellant provided disclosed that, in addition to his salary of $300 a week, appellant was paid a $3,000 bonus in February 2001. An expenditure of $4,500 was made for the purchase of a computer, which appellant kept at his home. Also, appellant’s wife was paid $271 a month for her services as church clerk and janitor. | [
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Sam Bird, Judge.
In this unbriefed employment security case, Allean Williams appeals the Board of Review’s denial of her claim for unemployment benefits. The Board based its decision upon a finding that Williams voluntarily and without good cause connected with the work, left last work due to a compelling personal emergency, but without making reasonable efforts to preserve her job rights. The Board affirmed the decision of the Appeal Tribunal, which affirmed and modified the department’s determination to deny benefits. We reverse and remand for an award of benefits.
The employer did not appear in the telephone conference before the Appeal Tribunal. Williams testified that her household consisted of herself, her disabled husband, her mentally retarded twenty-nine-year-old daughter, and her eighty-six-year-old father. She stated that her daughter was not able to do anything for herself, that her husband had undergone back surgery and could barely walk, and that her father, although mobile, was unable to care for himself because of his age. Williams said that she quit work when her babysitter of five years died and Williams took over the babysitter’s duties. She said that she had no one to care for her family at the time, and that she would not have left her job except for these personal issues.
Arkansas Code Annotated section 11-10-513 (Repl. 2002) provides that, as a prerequisite to receiving unemployment benefits, an employee is required to make every reasonable effort to preserve her job rights before leaving employment. Brooks v. Director, 62 Ark. App. 85, 966 S.W.2d 941 (1998). The statute reads in part:
(a)(1) If so found by the Director of the Arkansas Employment Security Department, an individual shall be disqualified for benefits if he or she voluntarily and without good cause connected with the work left his or her last work.
(b) No individual shall be disqualified under this section if, after making reasonable efforts to preserve his or her job rights, he or she left his or her last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification. . . .
On review of unemployment-compensation cases, the factual findings of the Board of Review are conclusive if they are supported by substantial evidence; but that is not to say that our function on appeal is merely to ratify whatever decision is made by the Board of Review. Boothe v. Director, 59 Ark. App. 169, 954 S.W.2d 946 (1997). We will reverse the Board’s decision when it is not supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
Williams testified that she initially asked personnel manager Mattie Bullock for a leave, and that Bullock told her to go to her supervisor about the matter. Williams testified that she then went to Reggie, her head supervisor; that Reggie would not give her the leave; and that she did not return to Bullock. Williams further testified that she had not been told about a Family Medical Leave, that she never had been given a personnel handbook, and that she could not file a grievance because she was not in the union.
The Board of Review viewed Williams’s failure to seek assistance after her supervisor denied her request as persuasive evidence that she did not make reasonable efforts to preserve her job rights. We disagree. We hold that reasonable efforts to preserve job rights would not have included Williams’s seeking authority above her supervisor under the facts of this case: she had been informed by the personnel manager that the leave had to be granted by the supervisor, she had tried that avenue, and there was no evidence of any policy directing her to pursue a particular chain of command. We therefore hold that there is no substantial evidence to support the Board’s finding that Williams did not make reasonable efforts to preserve her job rights.
Reversed and remanded for an award of benefits.
Robbins and Griffen, JJ., agree. | [
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Wendell L. Griffen, Judge.
Metropolitan National Bank (Bank) appeals from the trial court’s decision that it did not properly identify funds from accounts receivable of its customer, North Little Rock Materials (NLRM), in which the bank holds a security interest and which were deposited into NLRM’s account at the bank. As a result of the ruling, the trial court denied appellant’s motion to quash a writ of garnishment sought by appellee La Sher Oil Co., a judgment creditor of NLRM. The trial court stayed its order pending this appeal. We reverse and remand.
In 1998, the bank made a loan to NLRM and was granted a security interest in, among other things, NLRM’s inventory, equipment, accounts, accounts receivables, and the proceeds of those accounts. The financing statements were filed with the Pulaski County Circuit Clerk and the secretary of state. On April 15, 2001, the bank and NLRM entered into a work-out agreement where the bank agreed to loan an additional $100,000 to NLRM. A financing statement for this transaction was filed with both the circuit clerk and the secretary of state.
On April 24, 2001, La Sher obtained a $133,967.44 consent judgment against NLRM, which was filed on April 25, 2001. On May 18, 2001, La Sher had a writ of execution and a writ of garnishment issued against NLRM, which was served on the bank on May 23, 2001. The bank answered the garnishment on May 24, 2001, stating that the NLRM account had a balance of $34,358.46. On June 13, 2001, the bank amended its answer to the writ of garnishment to assert that it had a prior perfected security interest in the account because the account consisted of proceeds from NLRM’s accounts receivables. La Sher replied to the motion to quash, alleging that the security interest arose after the judgment was obtained and that not all of the funds in the account were proceeds from NLRM’s accounts receivables.
At the hearing on the bank’s motion to quash, Gary Griffin, executive vice-president of the bank in charge of lending, testified that the bank entered into a work-out agreement with NLRM in which the bank agreed to loan NLRM up to $100,000. The security interest granted to the bank covered NLRM’s accounts receivables and proceeds from those receivables. He also testified that, after the work-out agreement, he monitored NLRM’s account to insure that money from the receivables was placed into this account and appropriate bills were paid. He admitted that Sharon Tankersley made between two and four deposits of $10,000 each into this account and that funds from other companies affiliated with NLRM were also deposited into the same account. He testified that the account balance prior to the April 15 work-out loan was $11,349.69 and that the funds from the loan were deposited into the account in two deposits: $42,250.47 on April 20, and $57,749.43 on April 27. He testified that, on the date of the garnishment, the account balance was $34,358.46.
Sharon Tankersley testified that she worked in NLRM’s office, handling accounts payable and accounts receivable, paying bills, writing checks, and making deposits. She testified that she understood an account receivable of NLRM was money owed to NLRM by one of its customers and that payment of those receivables were “proceeds.” She testified that some affiliated businesses that were operated by her and her husband deposited money into NLRM’s account and paid some of its bills after the garnishment. She identified several deposit slips for bank deposits made by NLRM and recognized that the money was for payment on NLRM’s accounts receivables, totaling $82,232.23. She also identified two loans she made to NLRM totaling $13,000. She testified that NLRM was excluded from its offices and that, when she was allowed to return to the office, she found the records in disarray. She admitted that she did not have the supporting invoices for the deposit slips and that, without those invoices, it would be impossible to verify that the money came from collections of accounts receivables.
At the conclusion of the hearing, the trial judge requested briefs on whether the holder of a perfected security interest in the accounts receivables of a debtor loses that security interest in the proceeds from the receivables when they have been commingled in a bank account with other funds. The trial court found that, because Sharon Tankersley testified that she could not verify that the deposits were from accounts receivables without the supporting documentation, the bank failed to produce sufficient evidence to identify the funds in the account as coming from “proceeds” in which it had a security interest. The trial court denied the bank’s motion to quash the garnishment. This appeal followed.
The bank raises three issues on appeal: (1) that the trial court erred by imposing on it an erroneous burden of proof, inconsistent with the Uniform Commercial Code, to show that the funds were “identifiable proceeds”; (2) that the trial court erred in imposing on it a heightened burden of proof; (3) that the trial court erred in ruling that the deposits in NLRM’s account were not “identifiable proceeds” within the meaning of Ark. Code Ann. § 4-9-306 (1991). We hold that the trial court imposed an erroneous standard of proof when it concluded that the deposits in NLRM’s account were not “identifiable proceeds.” Consequently, we must reverse the judgment below and remand the litigation so that the trial court can decide the case using the proper evidentiary standard and applying what is known as the “lowest-intermediate-balance rule.”
The standard of review of a circuit court’s findings of fact after a bench trial is whether those findings are clearly erroneous. Ark. R. Civ. P. 52; Burke v. Elmore, 341 Ark. 129, 14 S.W.3d 872 (2000). 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. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998). Disputed facts and determination of the credibility of witnesses are within the province of the judge, sitting as the trier of fact. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998).
Arkansas Code Annotated section 4-9-306 (1991) does not define “identifiable proceeds.” Section 4-9-306(1) defines “proceeds” as “whatever is received upon the sale, exchange, collection, or other disposition of collateral or proceeds. . . . Money, checks, deposit accounts, and the like, are ‘cash proceeds.’” Section 4-9-306(2) provides that a security interest continues in identifiable proceeds, including collections received by the debtor. Section 4-1-103 directs that the Uniform Commercial Code be supplemented by “principles of law and equity.” Neither this court nor the supreme court has decided a case determining whether proceeds are “identifiable” under the Uniform Commercial Code.
However, it is established law that a secured creditor has the burden to trace and identify the funds as the proceeds from secured collateral. Ragland v. Davis, 301 Ark. 102, 782 S.W.2d 560 (1990). See also C.O. Funk & Sons, Inc., 89 Ill. 2d 27, 431 N.E.2d 370 (1982). When proceeds of a sale of collateral are placed in the debtor’s bank account the proceeds remain identifiable, and a security interest in the funds continues even if the funds are commingled with other funds. Anderson, Clayton & Co. v. First Am. Bank, 614 P.2d 1091 (Okla. 1980). The rules employed to distinguish the identifiable proceeds from other funds are liberally construed in the creditor’s favor by use of the “intermediate-balance rule.” Most courts that have considered the question have adopted this test. This rule provides a presumption that proceeds of the sale of collateral remain in the account as long as the account balance equals or exceeds the amount of the proceeds. The funds are “identified” based on the assumption that the debtor spends his own money out of the account before he spends the funds encumbered by the security interest. If the account balance drops below the amount of the proceeds, the security interest in the funds on deposit abates accordingly. This lower balance is not increased if non-proceeds funds are later deposited into the account. See 4 Ronald Anderson, Uniform Commercial Code § 9-306:30 at 233 (3d ed. 1999); Robert H. Skilton, The Secured Party’s Rights in a Debtor’s Bank Account Under Article 9 of the Uniform Commercial Code, 1977 So. III. Univ. L.J. 120, 140-43 (1977). The rule is analogous to the presumption which arises when a trustee commingles trust funds with his own. See Covey v. Cannon, 104 Ark. 550, 149 S.W. 514 (1912). If a presumption such as the lowest intermediate balance rule were not used, no funds placed in an account with funds from other sources could be “identified.”
The rule, which operates on a common-sense view that dollars are fungible and cannot practically be earmarked in an account, provides a presumption that proceeds remain in the account as long as the account balance is equal to or greater than the amount of the proceeds deposited. The proceeds are “identified” by presuming that they remain in the account even if other funds are paid out of the account.
C.O. Funk & Sons, 89 Ill. 2d at 31, 431 N.E.2d at 87.
The trial court ruled that the bank had not produced sufficient evidence to allow the account balance to be identified as coming from NLRM’s accounts receivables. Specifically, the trial court found that, “aside from Mrs. Tankersley’s testimony, the bank failed to produce evidence, such as NLRJVTs business records, that would conclusively establish that any of the funds deposited into the account were identifiable cash proceeds from NLRJVTs accounts receivable.”
We believe that the reference to the failure to “conclusively establish” that account funds were identifiable proceeds imposed an erroneous burden of proof on the bank. The trial court was referring to Tankersley’s testimony concerning her lack of the corresponding invoices. She also stated that, because NLRM was excluded from its offices, she did not have those invoices. Tankersley had firsthand knowledge of the checks listed in the deposit slips and could establish that the proceeds came from NLRM’s accounts receivables. See JAG Consulting v. Eubanks, 11 Ark. App. 232, 72 S.W.3d 549 (2002). The invoices would have added certainty to the evidence but were not required because La Sher offered no evidence that the deposits testified to by Tankersley came from sources other than accounts receivable. The bank’s burden of proof was by a preponderance of the evidence, meaning the evidence having greater weight or convincing force. See Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947).
Reversed and remanded.
Robbins and Bird, JJ., agree.
In 2001, the General Assembly adopted a new Article 9 to govern secured transactions, effective July 1, 2001. 2001 Ark. Acts 1439. The present case was commenced prior to July 1, 2001, and the prior version governs this case. See Act 1439, § 1(c). All references will be to the 1991 version of the statute unless otherwise noted. Former Ark. Code Ann. § 4-9-306 (1991) now corresponds, with modifications, to Ark. Code Ann. § 4-9-315 (2001).
See, e.g., Sony Corp. of Am. v. Bank One, 85 F.3d 131 (4th Cir. 1996) (applying West Virginia law); Ex parte Alabama Mobile Homes, Inc., 468 So. 2d 156 (Ala. 1985); ITT Commercial Fin. Corp. v. Tech Power, Inc., 43 Cal. App. 4th 1551, 51 Cal. Rptr. 2d 344 (1996); C.O. Funk & Sons, Inc. v. Sullivan Equip., Inc., supra; Ellefson v. Centech Corp., 606 N.W.2d 324 (Iowa 2000); Bank of Kansas v. Hutchinson Health Servs., 12 Kan. App. 2d 87, 735 P.2d 256 (1987); Conagra, Inc. v. Farmers State Bank, 237 Mich. App. 109, 602 N.W.2d 390 (1999); Fricke v. Valley Prod. Credit Ass'n 778 S.W.2d 829 (Mo. Ct. App. 1989); Michigan Nat’l Bank v. Flowers Mobile Home Sales, Inc., 26 N.C. App. 690, 217 S.E.2d 108 (1975); Anderson, Clayton & Co. v. First Am. Bank, supra. | [
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Josephine Linker Hart, Judge.
In this case from Benton County, the trial court granted summary judgment to Wal-Mart on five causes of action brought against it by appellant Gene Addington, a former employee; 1) the tort of outrage; 2) false-light invasion of privacy; 3) intrusion invasion of privacy; 4) defamation; and 5) negligence. Addington argues that summary judgment was inappropriate because genuine issues of material fact remain on each count. We affirm the grant of summary judgment on the outrage, false-light invasion of privacy, defamation, and negligence claims. However, we reverse and remand on the intrusion invasion-of-privacy claim.
Gene Addington is the former maintenance supervisor of Wal-Mart’s home office maintenance facility in Bentonville. In August of 1998, he was terminated when it was discovered that he was in possession of property that belonged to Wal-Mart. He later filed suit against Wal-Mart, alleging that, in conducting the investigation that led to his termination, Wal-Mart committed the above mentioned tortious conduct. To place his allegations in context, it is necessary to recite a history of the investigation and surrounding events.
On August 13, 1998, two Wal-Mart loss prevention officers, Jim Elder and Keith Womack, began surveillance of Bob Kitterman, an employee of Wal-Mart’s home office maintenance department. The surveillance led to the discovery that Kitterman and his son-in-law were in possession of tools and other property allegedly stolen from Wal-Mart. On August 17, another maintenance facility employee, David Clark, was interviewed with regard to stolen property. A subsequent search of Clark’s home resulted in the seizure of approximately 400 items that Wal-Mart contended were stolen from its facility. Thereafter, on August 20, 1998, Elder and Womack, along with personnel officer Melinda Hass, interviewed the other employees of the maintenance department. During the interviews, employee Hays Buenning admitted to being in possession of Wal-Mart property that he did not own. A search of Buenning’s home by Elder and Womack revealed several items allegedly belonging to Wal-Mart. Buenning was suspended, and he spoke with Addington on the phone that night, telling Addington that his (Buenning’s) house had been “ransacked.”
The next day, August 21, 1998, Womack conducted an interview with Addington. He asked Addington if he had any property that belonged to Wal-Mart. Addington admitted that he had some light poles in his yard that had been given to him by his supervisor Bob Murphy and a VCR and monitor that he had gotten from David Clark, though he was not sure if they belonged to Wal-Mart. According to Addington, Womack asked if they might go to Addington’s home to view the light poles. Addington agreed, and Elder and Womack followed him in a separate car. While they were en route, Elder called for a Benton County deputy to meet the men at Addington’s house, telling the dispatcher that stolen property from Wal-Mart was located there.
When the deputy arrived, Elder asked Addington to sign a consent form to allow a search of his home. Addington refused until he could speak with his wife, who was inside the home. After speaking with Mrs. Addington, who became very upset, Addington again communicated his refusal to sign the consent form, and he went back inside the house. The men stayed on the premises, however, and Addington observed Elder walking toward his shop building. Addington returned to the front porch and reiterated that he would not sign the consent. According to Add-ington, Womack said, “Well, we’ll just call the IRS and let them do the math.” During this same time frame, Elder said to Add-ington, “Gene, I can get a search warrant. I’ve already talked to someone.” Also, according to Mrs. Addington, Womack stated at some point that “we don’t need the media involved in this” or “we don’t need to get the media up here.” Addington went back inside, called attorney Paul Davidson, and told him that he was afraid that, if he did not consent to the search, his job would be in jeopardy. Davidson told him that, while he did not have to consent to the search, Wal-Mart could probably obtain a warrant and that, if he was convinced that refusal to consent would result in his termination, he should allow the search. At that point, Addington went back outside and signed the consent form. The time span between the parties’ arrival at the Addington property and the signing of the consent form was approximately thirty minutes. During this time, the deputy never spoke with Addington; he sat in his car in the driveway.
After Addington signed the consent form, Elder conducted a search of Addington’s shop with the deputy alongside him. Elder questioned Addington about where he had obtained various items. Addington explained where he had purchased the items and, once a satisfactory explanation was given, Elder mentioned it no further. However, Addington admitted that, in addition to the light poles, monitor, and VCR, he had some toilets and water heaters that he had removed from a Wal-Mart facility. Addition ally, he had a security camera, which he had purchased from a Wal-Mart vendor for $5.00, in violation of company policy. Elder confiscated the monitor and VCR and asked Addington to disconnect the camera and bring it with him to the office on Monday. Addington was suspended on the spot and later terminated. In all, five employees were fired as the result of this investigation. Wal-Mart’s handling of the investigation has led to several lawsuits being filed by the men accused.
After Addington filed the instant action in Benton County Circuit Court, seeking redress for outrage, false-light invasion of privacy, intrusion invasion of privacy, defamation, and negligence, discovery was undertaken. Thereafter, Wal-Mart filed a motion for summary judgment on each count in the complaint. The trial court granted the motion, and this appeal followed.
Our standard of review of summary-judgment cases is well established. We have ceased referring to summary judgment as a drastic remedy. Cumming v. Putman Realty, Inc., 80 Ark. App. 153, 92 S.W.3d 698 (2002). We now regard it simply as one of the tools in a trial court’s efficiency arsenal; however, we approve the granting of the motion only 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 no genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law. Id. The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Id. Where the evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ, summary judgment is not proper. Lee v. Hot Springs Village Golf Sch., 58 Ark. App. 293, 951 S.W.2d 315 (1997).
Our supreme court recently affirmed a jury verdict of $651,000 in compensatory damages and $1,000,000 in punitive damages on behalf of David Clark for invasion of privacy and defamation. See Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002). Although the circumstances in that case differ in many respects from the circumstances in this case, there are sufficient similarities to warrant our reliance on it in some respects, as will be explained later in this opinion.
We begin by addressing Addington’s argument that the trial court erred in granting summary judgment on his outrage claim. Addington argues that a fact question remains on his outrage cause of action because: 1) Jim Elder told him that he had been “under surveillance with people watching him from up in the trees”; 2) he was told that his co-worker Buenning was “a thief and a liar”; 3) Wal-Mart used the police to coerce him into signing the consent form; 4) Womack threatened him with the IRS; 5) Elder “made comments about stolen property” on Addington’s land; 6) Wal-Mart failed to investigate whether Addington had been given permission to take the fight poles home; 7) Elder and Womack refused to leave when Addington declined to consent to the search; and 8) there were “threats of search warrants.”
The supreme court has formulated four factors necessary to establish the tort of outrage: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous, was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) the actions of the defendant were the cause of the plaintiff s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Faulkner v. Arkansas Children’s Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002). Despite judicial recognition of this tort, the courts have addressed it in a cautious manner and have stated that recognition of it is not intended to open the doors of the courts to every slight insult or indignity one must endure in fife. See, e.g., Dillard Dep’t Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993). In particular, the courts have taken a narrow view of claims that arise out of the discharge of an employee. The reason is that an employer must be given considerable latitude in dealing with employees, and at the same time, an employee will frequently feel considerable insult when discharged. City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 154 (1994).
The type of conduct that meets the standard for outrage must be determined on a case-by-case basis. Crockett v. Essex Home, Inc., 341 Ark. 558, 19 S.W.3d 585 (2000). We require clear-cut proof to establish the elements in outrage cases. Id. Merely describing the conduct as outrageous does not make it so. Id. Clear-cut proof, however, does not mean proof greater than a preponderance of the evidence. Id.
The trial court ruled that the facts presented by Addington were not so outrageous or extreme as to go beyond all possible bounds of decency and further, that Addington’s symptoms did not constitute emotional distress so severe that no reasonable person should be expected to endure it. We agree with the trial court.
On the first of the eight factors alleged by Addington to support his claim, Addington has misrepresented his own deposition testimony. He testified that, when Elder, Womack, and Hass met with the maintenance employees on August 20, Elder “went through some of these techniques as how they do it and what they do, and a reference was made to people sitting in trees observing other people to watch them and all that.” Addington acknowledged that Elder did not say anyone was sitting in trees watching Adding-ton. Further, Addington said that nothing at the August 20 meeting made him mad or was considered by him to be inappropriate. On the second factor, Addington attempts to base his outrage claim on the fact that Wal-Mart labeled a co-worker a liar and a thief. Addington cites no authority, and we have found none for the proposition that insulting a third person may give rise to outrage. On factor number three, Wal-Mart’s use of the police for intimidation purposes is not well borne out here. Although a deputy was present when the consent to search was being offered to Addington, the deputy sat in Addington’s driveway while the controversy over the consent was going on. Addington stated that the only conversation he had with the deputy was when he eventually signed the consent form “to get rid of them.” Addington also stated that the deputy “never stepped foot on my grass or on my sidewalk.” Further, when the search took place, the deputy did not go into Addington’s home, although he did go into his shop.
On the fourth factor — the mention of the IRS — there is no question that a threat to notify the Internal Revenue Service is an intimidating technique, but we do not think it constitutes outrage. The reference to the IRS was vague in nature, and there was no evidence that Addington was particularly susceptible to a mention of the IRS. The “comments about stolen property” that Addington mentions in factor number five references Elder’s description of the security camera as stolen and Elder’s question to Addington, during the search of the shop, “where is the pallet of tools?” Accusations of theft, however, do not constitute outrage. See Dillard Dep’t Stores v. Adams, supra; Unicare Homes Inc. v. Gribble, 63 Ark. App. 241, 977 S.W.2d 490 (1998). As for Wal-Mart’s failure to investigate whether Addington had permission to take the light poles home, as alleged in factor number six, Wal-Mart did conduct an investigation, although it may have been incomplete. Wal-Mart asked Adding-ton’s supervisor if he had given Addington permission to take the poles, and the supervisor said “absolutely not.” It later developed that an employee said that she had overheard the supervisor giving Addington permission to take the poles. While this might constitute a lack of thoroughness by Wal-Mart, it is not the type of conduct that goes beyond all bounds of decency.
Regarding Elder and Womack’s failure to leave when Add-ington declined to sign the consent form, undeniably they were putting pressure on him by their continued presence. However, they never tried to enter his home or use physical violence. Finally, on factor number eight, we fail to see how the threat of obtaining a search warrant is outrageous conduct when Addington had already acknowledged that he had property belonging to Wal-Mart in his home and his attorney had likewise told him that Wal-Mart could probably get a warrant.
Whether each of the above factors is taken individually or they are considered as a whole, we do not believe Wal-Mart’s conduct rose to the level of that required for outrage. Although Wal-Mart’s conduct was aggressive and intimidating, it did not go beyond all bounds of decency, especially when we consider some of the conduct that employers in other cases have committed and not been held fiable. See, e.g., Faulkner v. Arkansas Children’s Hosp., supra (strained working relationships, a deliberate attempt to under mine the employee’s authority, and false accusations of shoddy work and mental illness); Stockton v. Sentry Ins., 337 Ark. 507, 989 S.W.2d 914 (1999). (cutting off dental benefits in mid-procedure and telling employee’s wife that employee was a “lazy s.o.b.” who wasn’t good enough for her); City of Green Forest v. Morse, supra (cursing and speaking angrily and inquiring into employee’s personal fife); Webb v. HCA Health Servs., 300 Ark. 613, 780 S.W.2d 571 (1989) (being verbally abusive, making derogatory remarks about employee to others, asking employee to falsify records, and misrepresenting cause for termination); Sterling v. Upjohn Healthcare Servs., 299 Ark. 278, 772 S.W.2d 329 (1989) (undermining employee’s authority, making false accusations of drunkenness and of falsifying job application, cursing employee, and asking others to report on employee). In light of our holding that Wal-Mart’s conduct did not transcend the bounds of decency, we need not address whether Addington sustained emotional distress so severe that no reasonable person could be expected to endure it.
Addington argues next that his invasion of false-light invasion-of-privacy claim should not have been dismissed by way of summary judgment. The right to recover for a false-light invasion-of-privacy claim is conditioned upon the complaining party’s demonstrating that (1) the false light in which he was placed by the publicity would be highly offensive to a reasonable person, and (2) that the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed. Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979), cert. denied, 444 U.S. 1076 (1980). The evidence must support the conclusion that the publisher had serious doubts about the truth of his publication. Howard W. Brill, Arkansas Law of Damages § 33-11 at 671 (4th ed. 2002). In false-light actions, the plaintiffs burden of proof is governed by the clear-and-convincing-evidence standard. Dodrill, supra.
Where the plaintiff is not a public figure and the publication is of matters of general or public concern, the plaintiff must prove actual malice by clear and convincing evidence. Dodson v. Dicker, 306 Ark. 108, 812 S.W.2d 97 (1991). Statements made with actual malice are those made with knowledge that the statements were false or with reckless disregard of whether they were false or not. Id.
Addington’s claim on this count is based on certain written and oral statements made by Jim Elder during the course of the investigation. During the drive from Wal-Mart to Addington’s home on August 21, Elder telephoned the police while en route and asked for help in retrieving “stolen property.” In Elder’s initial investigation synopsis, he stated that Addington “voluntarily admitted having possession of Wal-Mart merchandise at his house for which he had not reimbursed the company.” He also stated:
Addington admitted having light fixtures and poles on his property belonging to Wal-Mart. In addition, he stated that he still had a monitor and computer given to him by David Clark which he had not been paid for. He also admitted to being in possession of a VCR brought over by Clark. Addington stated that he had some toilets and (2) water heaters that he had removed from one of the Wal-Mart facilities during a remodel.
Elder furnished a copy of this report to the county prosecutor and to several persons within the company, all of whom it appears were either part of the loss prevention or the corporate fraud department. Finally, in a letter to personnel officer Melinda Hass, Elder stated that, during the August 21 interview, Addington admitted to having some items in his residence that were not paid for, and that, while at the residence, Addington gave Elder a recorder and monitor that belonged to Wal-Mart and had not been paid for, and a camera that he had purchased from a Wal-Mart vendor for five dollars.
Addington argues that these statements placed him in a false fight by insinuating that he was part of a theft ring and that he possessed stolen property. We disagree. First of all, the statements are not false, even when viewed in a fight most favorable to Addington. Addington admitted to having, on his property, toilets and water heaters that he had taken from Wal-Mart. He also said that the VCR “very well could have been Wal-Mart’s.” Finally, he admitted in his deposition that the statements in Elder’s case synopsis regarding the property he had was accurate. We also conclude that, even if Elder’s statements were subject to a more favorable interpretation to Addington, the statements were protected by a qualified privilege. A communication is qualifiedly privileged when it is made in good faith upon any subject matter in which the communicator has an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty. Wal-Mart Stores, Inc. v. Lee, supra. The privilege is lost if abused by excessive publication, where a statement is made with malice, or where a statement is made with a lack of grounds for belief in its truthfulness. Id. Whether a particular statement falls within the scope of a qualified privilege is a question of fact for the jury. Id.
Wal-Mart v. Lee is the case that involved Addington’s fellow employee David Clark. There, the supreme court held that similar communications by Elder fell outside the privilege because he had grounds to believe that Clark did not possess stolen goods. Such was not the case here. Addington’s supervisor had stated that he absolutely had not given Addington permission to take the light poles. Further, Addington admitted during the search to having the toilets and the water heaters, and he made the other statements attributed to him in the previous paragraph. Thus, unlike in Lee, the undisputed evidence in this case shows that Elder had every reason to believe that Addington possessed property that rightfully belonged to Wal-Mart. Additionally, Elder’s communications were made only to law enforcement officers and appropriate personnel within his own company. Addington simply has not shown that the qualified privilege was lost through excessive publication or malice. We therefore uphold the trial court’s grant of summary judgment on the false-light claim.
We likewise hold that the same qualified privilege applies to a portion of Addington’s defamation claim. The claim is partially based on the same statements made by Elder to law enforcement officers and Wal-Mart employees as set out earlier; it is also based on Wal-Mart’s statement in a letter to the Employment Security Division that Addington removed several items of company property without authorization. On this point, we note that it is an employer’s duty to make an accurate report to the Employment Security Department and, if made in good faith, the communication is privileged. See Dillard Dep’t Store v. Felton, 276 Ark. 304, 634 S.W.2d 135 (1982). Given our discussion of qualified privilege on the previous issue, we conclude that the same reasoning applies to these aspects of Addington’s defamation claim.
The remaining parts of Addington’s defamation claim concern Elder’s comment that the security camera at Adding-ton’s home was “stolen” and his question to Addington during the search of the shed, “where is the pallet of tools?” A viable action for defamation turns on whether the communication or publication tends or is reasonably calculated to cause harm to another’s reputation. Faulkner v. Arkansas Children’s Hosp., supra. The following elements must be proved to support a claim of defamation, whether it be by the spoken word (slander) or the written word (libel): (1) the defamatory nature of the statement of fact; (2) that statement’s identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant’s fault in the publication; (5) the statement’s falsity; and (6) damages. Id.
As for the stolen camera, there is no showing by Addington that anyone heard or could have heard this comment. In light of that, there is no evidence of publication or damage to reputation. Further, Addington can hardly say that he was damaged by such a comment when, in fact, he possessed items that were taken from Wal-Mart without authorization. As for the inquiry about the pallet, we fail to see how this question is defamatory. An actionable statement is one that tends or is reasonably calculated to cause harm to another’s reputation. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). Also, a defamatory statement must imply an assertion of an objective, verifiable fact; it should, for example, be capable of being proved true or false. See Faulkner v. Arkansas Children’s Hosp., supra. The question does not meet these criteria. Additionally, Addington could point to no damage to reputation other than his assertion that it had been harmed among the contractors with whom he did business, none of whom were present when this inquiry was made. We therefore affirm the trial court’s grant of summary judgment on the defamation count.
We turn now to Addington’s cause of action for intrusion invasion of privacy. Intrusion is the invasion by a defendant upon the plaintiffs solitude or seclusion. Wal-Mart Stores, Inc. v. Lee, supra. Arkansas courts have seldom adjudicated intrusion claims. Id. The tort consists of three parts: (1) an intrusion; (2) that is highly offensive; (3) into some matter in which a person has a legitimate expectation of privacy. Id. A legitimate expectation of privacy is the touchstone of the tort of intrusion. Id.
Wal-Mart argues here, as it did in Lee, supra, that there was not an intrusion because there was a consent to the search. Add-ington argues that a fact question remains as to whether his consent was freely and voluntarily given. We agree.
Though the validity of consent in a civil case does not involve a defendant’s motion to suppress evidence seized in a criminal case, the standard for determining valid consent in the criminal context is helpful. Lee, supra. Consent must be given freely and voluntarily to be valid. Id. It must be shown that there was no duress or coercion, actual or implied. Id. The voluntariness of consent must be judged in light of the totality of the circumstances. Id. In a civil case, the issue of whether consent was valid is a question of fact that must be decided by the trier of fact. Id.
In Lee, the supreme court upheld the jury’s verdict for David Clark on this count in a situation involving similar circumstances. As in that case, there are several particulars here that create a fact question on the issue of whether Addington’s consent was voluntarily given: the threat of the IRS (a factor in Lee); the fact that Addington declined to consent three times, yet Elder and the officer remained on the premises (which is more indicative of coercion than in Lee, where there was one request to consent made at the premises); Addington’s fear that he would lose his job if he did not consent (a factor in Lee); mention of the media, as testified to by Mrs. Addington (when she was aware that in Clark’s case, media coverage had been substantial); and the fact that Addington agreed to go to his home in the first place only to allow Womack to look at the light poles (similar to the situation in Lee). One factor that distinguishes this case from Lee is that, before signing the consent, Addington took the opportunity to consult with counsel. However, while Addington’s consultation with an attorney before signing the consent form is certainly a factor to be considered in determining the voluntariness of his actions, we do not deem it conclusive. By that point, Addington had already refused to consent three times and had been subjected to the other coercive actions. The totality of the circumstances, in particular the fact that Addington declined to consent three times before succumbing, leads us to conclude that a fact question remains as to whether his consent was voluntarily given.
The only remaining question on this issue concerns the effect of a federal court ruling in Addington’s previously filed 42 U.S.C. § 1983 action. The federal court ruled that, as a matter of law, Addington’s consent was voluntary. Wal-Mart, in a one-paragraph argument without citation to authority, argues that the federal court’s finding on this point is binding under the doctrine of collateral estoppel. Wal-Mart was likewise unable to provide supporting authority during oral argument.
This point is barely developed enough for our consideration, but we believe it is governed by our holding in Guidry v. Harp’s Food Stores, 66 Ark. App. 93, 987 S.W.2d 755 (1999). Guidry, who had been arrested for shoplifting, sued a police officer who worked for Harp’s in federal court for a section 1983 violation and for various state law tort claims. The federal court granted summary judgment to the officer on the basis that his arrest of Guidry was reasonable and thus he was entitled to qualified immunity. The court then declined to exercise jurisdiction over the state law tort claims. When Guidry filed those claims in state court against Harp’s, the federal court’s ruling was set forth by Harp’s as conclusive of the officer’s reasonableness. The trial judge agreed, ruling that the federal court determination had “knocked out the underpinning” of Guidry’s state law claims. We reversed on the basis that the type of analysis used by a court to determine the question of qualified immunity would be different from that used to determine tort liability. That reasoning does not apply here because the same analysis would be used to determine voluntariness of consent in this case as was used in the federal court case. However, Guidry went on to say that, where a federal court decides not to retain jurisdiction of state law claims, the plaintiffs right to litigate those claims in the future is reserved. That is the situation here. The federal court declined to exercise jurisdiction over the state law claims and thus implicitly preserved Addington’s right to litigate his state tort claims to their full extent.
Finally, we address Addington’s argument that summary judgment was inappropriate on his negligence claim. Addington’s complaint alleged that Wal-Mart negligently failed to investigate whether Addington possessed stolen property and negligently supervised its employee, Jim Elder. The trial court ruled that there was no basis for the negligent investigation claim and that Addington faded to submit evidence that Wal-Mart knew or should have known of some prior conduct by Elder that would have put it on notice that Elder was a danger to other persons.
In his brief, Addington relies on Elder coming out to Add-ington’s property under the guise of looking only at the light poles as evidence of a negligent investigation. While this fact may be relevant to Addington’s other claims, we fail to see how it constitutes negligence. In any event, we cannot conceive how Wal-Mart could be liable for negligently determining that Addington possessed stolen property when it is undisputed that he did possess Wal-Mart property without authorization. Addington simply makes no convincing argument on this point.
On the negligent-supervision claim, liability for this cause of action is based upon the unique relationship between employer and employee. Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001). Under this theory, employers are subject to direct liability for the negligent supervision of employees when third parties are injured as a result of the tortious acts of employees. Id. The employer’s liability rests upon proof that the employer knew or, through the exercise of ordinary care, should have known that the employee’s conduct would subject third parties to an unreasonable risk of harm. As with any other negligence claim, to prove negligent supervision, a plaintiff must show that the employer’s conduct was a proximate cause of the injury and that the harm to third parties was foreseeable. Id. It is not necessary that the employer foresee the particular injury that occurred, only that he or she reasonably foresee an appreciable risk of harm to others. Id.
The Aldrich case is consistent with the general line of cases on negligent supervision in that, before the supervisor is held liable, it must be put on notice that the person supervised poses a danger to third parties. See Regions Bank & Trust v. Stone County Skilled Nursing Facility, 345 Ark. 555, 49 S.W.3d 107 (2001); Maneth v. Tucker, 72 Ark. App. 141, 34 S.W.3d 755 (2000); Sparks Reg’l Med. Ctr. v. Smith, 63 Ark. App. 131, 976 S.W.2d 396 (1998). As Wal-Mart points out in its brief, there is no evidence that it had knowledge of any propensity by Elder to be overly zealous or aggressive in an investigation. Thus, there is no evidence that Wal-Mart could have foreseen that Elder might conduct himself in such a manner. We therefore affirm on this point.
The trial court’s grant of summary judgment is reversed and remanded on the intrusion invasion-of-privacy count and affirmed on all other counts.
Affirmed in part; reversed and remanded in part.
Griffen and Baker, JJ., agree.
There was evidence that Clark operated his own electronics repair business and had been asked by a supervisor to repair items for the Associates Store, which sold damaged merchandise to employees at a discount. There was also evidence that Clark had been told he could keep some items that were beyond repair. Clark informed Elder of this on the day of the seizure. | [
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John Mauzy Pittman, Judge.
The appellee in this workers’ compensation case was employed by appellant. His duties required him to load and unload trucks. While so engaged on approximately January 29, 2000, appellee tripped, fell from the loading dock into a truck tailgate, and injured his leg. Appellee promptly reported his injury to his supervisor, who treated his laceration. Appellee’s leg became increasingly swollen and painful over the next few days, but appellant refused to provide the medical treatment that appellee requested. Appellee, who had no medical insurance, could not afford to pay for the treatment that he required. Appellee continued working, with difficulty, until he was terminated by appellant on June 23, 2000. Approximately one week after his termination, appellee consulted an attorney and was directed to a physician who would treat him without requiring immediate payment. Appellee filed a claim for medical and temporary total disability benefits, asserting that he sustained a compensable injury to his left knee while in appellant’s employ. After a hearing, the Commission found that appellee suffered a compensable leg injury while employed by appellant; that appellant was responsible for all reasonable and necessary medical treatment provided in connection with that injury; and that appellee was entitled to temporary total disability benefits beginning June 24, 2000, and continuing through a date yet to be determined. From that decision, comes this appeal.
For reversal, appellant contends that the Commission’s award of temporary total disability benefits is not supported by substantial evidence and ignores the legislature’s mandate that the Workers’ Compensation Act be strictly construed. We affirm.
Our standard of review is well-settled: In determining the sufficiency of the evidence to support the findings of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we will affirm if those findings are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Commission. 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 it deems worthy of belief. American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998).
Appellant asserts that the evidence is not substantial because appellee’s physician did not state that appellee was in a “healing period.” We find this argument to be disingenuous. Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages; the healing period is that period for healing of an accidental injury that continues until the employee is as far restored as the permanent character of his injury will permit, and that ends when the underlying condition causing the disability has become stable and nothing in the way of treatment will improve that condition. Carroll General Hospital 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 and will be affirmed on appeal if supported by substantial evidence. Id. Here, although it is true that appellee’s physician did not use the precise term of art “healing period,” he did state that he was going to give appellee several weeks to work on improving his range of motion, and that if appellee’s injury had not improved, appellee would require arthroscopic surgery. This, clearly, is substantial evidence that appellee is within his healing period.
Appellant also argues that the evidence is not substantial because the Commission ignored the fact that there are no “offiwork” slips in the record, and ignored “credible” evidence that appellee had performed various types of labor on his farm after he was fired. We do not agree. These are matters of weight and credibility, and thus lie within the exclusive province of the Commission. American Greetings Corp. v. Garey, supra. Although it is true that appellee testified that he performed some isolated farm and household tasks following his injury, appellee’s testimony, which the Commission found to be credible, was that he was in pain, that he required help to perform his farm chores, and that he did so slowly and with difficulty. Such activity is not a bar to an award of temporary total disability benefits. 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. Pyles v. Triple F. Feeds of Texas, 270 Ark. 729, 606 S.W.2d 146 (Ark. App. 1980).
Finally, appellant contends that the Commission erred by failing to strictly construe Ark. Code Ann. § 11-9-521 (a) (Repl. 1996), which provides that employees who sustain scheduled injuries shall receive temporary disability benefits “during the healing period or until the employee returns to work, whichever occurs first.” Appellant argues that, because appellee returned to work after his injury, he is barred from receiving temporary total disability benefits for the period following his termination by appellant. We do not agree. Although it is true that the Workers’ Compensation Act must be strictly construed, Ark. Code Ann. § 11-9-704(c)(3) (Repl. 1996), even a strict construction of statutes requires that they be construed in their entirety, with each subsection relating to the same subject to be read in a harmonious manner. Maxey v. Tyson Foods, Inc., 66 Ark. App. 301, 991 S.W.2d 624 (1999). Furthermore, construction of the Workers’ Compensation Act must be done in light of the express purpose of that legislation, which is “to pay timely temporary and permanent disability benefits to all legitimately injured workers who suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom, and then to return the worker to the work force.” Ark. Code Ann. §11 -9-101 (b) (Repl. 1996). In light of the legislative purpose, it would be ludicrous to assume that the legislature sought to penalize workers who sustain scheduled injuries, or to deter such workers from making a good-faith effort to return to the work force following such an injury. Section 11-9-521 (a)’s brief reference to temporary disability benefits merely establishes the right of a worker who has sustained a scheduled injury to such benefits, and was clearly not intended to bar additional temporary total disability benefits following an unsuccessful attempt to return to the workforce. See Roberson v. Waste Management, 58 Ark. App. 11, 944 S.W.2d 858 (1997).
“Return to work” is not defined by the Act, and we think it would be a gross perversion of the purpose of the Workers’ Compensation Act to hold that appellee “returned to work” pursuant to § 11-9-521 (a) by continuing to report to work following his injury. In our view, appellee never left work. Appellee could not leave work — without being terminated for absenteeism — until he had been evaluated by a physician and given an off-work slip. Appellee requested medical care and evaluation, but appellant refused to provide it. No reasonable construction of the term “return to work” would permit an employer to coerce an injured worker to abandon his claim to temporary disability benefits by denying him reasonable and necessary medical treatment for an admittedly compensable injury.
Affirmed.
Bird, Baker, and Robbins, JJ., agree.
Neal, J., concurs.
Roaf, J., dissents.
As the dissent notes, Wheeler Construction Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001), recites the statutory language that an employee suffering a scheduled injury is entitled to compensation for temporary total and temporary partial benefits during the healing period or until the employee returns to work, whichever occurs first. However, Wheeler says nothing about what constitutes a return to work, or whether a worker who returns to work unsuccessfully regains entitlement to temporary benefits during a second period of rehabilitation following an injury, and as such is simply not relevant to the very different circumstances that arise in the present case. It is ludicrous to suggest that we are carrying out the legislature’s intent by affirming an award of benefits to Mr. Armstrong, who did not return to work simply because he was imprisoned, and reversing an award of benefits to the appellant in the present case, who requested but was refused the basic medical evaluation and treatment that would have permitted him to leave work without endangering his livelihood. Furthermore, while it is true that additional temporary benefits were ultimately denied in Roberson v. Waste Management, supra, that denial was based on the particular facts of the case. Insofar as the issue in the Roberson case was entitlement to additional temporary benefits following a return to work, and that the denial of those benefits was not grounded on a holding that such benefits are unavailable per se, but instead on a finding that Ms. Roberson’s subsequent medical problems were not work-related, that case strongly suggests that additional temporary benefits are, in fact, available in a proper case following an unsuccessful attempt to return to the workplace. | [
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John F. Stroud, Jr., Chief Judge.
Appellant, Rene Charles Taylor, was convicted by a Pope County jury of battery in the first degree. He was sentenced to serve two years in the Arkansas Department of Correction, with an additional three years suspended based upon the conditions that he live a law-abid ing life and obtain counseling, and he was fined $15,000. On appeal, he argues that the evidence is insufficient to sustain the verdict; that the trial court erred in refusing to instruct the jury on lesser-included offenses; and that the trial court erred by not declaring a mistrial or admonishing the jury based on comments made during the State’s closing arguments. We affirm.
Although Taylor’s state of mind was contested at trial in his motions for directed verdict, the other facts pertaining to the case were not seriously disputed except in Taylor’s testimony during the sentencing phase of the trial, which is not pertinent to the issues being appealed. The testimony at trial revealed that in January 2000, Dr. Carroll Don Johnson and his wife had rented a trailer from Taylor and his wife while remodeling their newly purchased home. Johnson borrowed Taylor’s backhoe to remove some stumps from his property, and he agreed that in return, he would purchase a swing set for Taylor’s daughter. Johnson also agreed to allow Taylor to use his condominium in Florida at some time. While Johnson had the backhoe, the windshield was broken when the exhaust pipe fell off the backhoe and struck the glass, and Johnson offered to repair the windshield.
In April 2000, Johnson and his wife moved out of Taylor’s property. On April 30, 2000, Johnson went to see Taylor about the repair of the backhoe windshield and the refund of his $250 rental deposit. When Johnson arrived at Taylor’s house, Taylor presented him with a document detailing all of their past “agreements” and asked Johnson to sign it. Johnson refused to sign the formal document, stating that he thought the two of them had a gentleman’s agreement. A disagreement ensued, and Taylor told Johnson to get out of his house. When Johnson got up to leave, Taylor rushed toward him and began pushing him; Johnson pushed Taylor back and hit him in the face with his fist, bloodying Taylor’s nose. When Johnson turned to leave again, Taylor jumped on his back and pinned him to the table; Johnson “nosedived” Taylor off his back and onto the floor, hitting Taylor so hard in the back of the head that he broke his hand. Johnson pinned Taylor to the ground; Taylor said, “I give”; and Johnson, after inquiring if Taylor was okay, got up yet again to leave. Johnson saw Taylor go to a cabinet, reach up, and come down with a pistol. Johnson ran past Taylor, pushing him in the back as he passed, and ran out the door. Johnson ran around the corner of the garage yelling for help, and he started running across a field toward Taylor’s in-laws’ house. When Johnson turned around, he saw Taylor at the end of the garage with a .22 rifle, and he saw three rounds “dance around his feet” as he ran. Johnson said there was a pause, and then there were four “bams.” He said that he saw one shot go in and come out of his leg, and another shot hit him in the buttocks. He continued to run until he was hit in his right side and was knocked down. Johnson said that he heard Taylor yell that he was going to kill him, and that he feared for his life. The wife of one man who heard Johnson’s calls for help called 911, and another man came to Johnson’s aid, helping him to move behind a house for cover and calling for an ambulance. Johnson was taken to the hospital, where he underwent exploratory surgery to rule out any internal injuries.
Although Taylor raises the issue of the sufficiency of the evidence as his last point on appeal, double jeopardy considerations require that we consider sufficiency of the evidence before the other points raised. Diemer v. State, 340 Ark. 223, 9 S.W.3d 490 (2000). A directed-verdict motion is a challenge to the sufficiency of the evidence. Ward v. State, 64 Ark. App. 120, 981 S.W.2d 96 (1998). When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). The test is whether there is substantial evidence to support the verdict, which is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id.
Arkansas Code Annotated section 5-13-201 (a) (7) (Repl. 1997) provides that a person commits battery in the first degree if, “with the purpose of causing physical injury to another person he causes physical injury to any person by means of a firearm.” Taylor argues on appeal that the evidence presented by the State did not show that he was trying to cause physical injury to Johnson when he shot at him with the .22 rifle. He contends that “merely firing the rifle in [Johnson’s] direction is insufficient” to prove that he purposefully shot Johnson, and he points to the fact that he did not use his larger .380 handgun as evidence that he did not have the purpose to injure Johnson.
This argument is unavailing. A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 1997). Intent can seldom be proven by direct evidence and must usually be inferred from the circumstances surrounding the crime; because of the difficulty in ascertaining a person’s intent, a presumption exists that a person intends the natural and probable consequences of his acts. Brown v. State, 54 Ark. App. 44, 924 S.W.2d 251 (1996). The jury is allowed to draw upon its own common knowledge and experience to infer intent from the circumstances. Id. Here, the evidence showed that Taylor fired multiple shots at Johnson, there was a pause during the time that the shots were fired, and Johnson was then hit by three bullets. When Taylor began firing a gun at Johnson, it was presumed that he intended the natural and probable consequence of his actions, which was that he shot Johnson. There is sufficient evidence to support Taylor’s first-degree battery conviction.
Taylor’s next argument is that the trial court erred by refusing to give the jury his proffered instructions for second- and third-degree battery, contending that those offenses were lesser-included offenses of battery in the first degree. Arkansas Code Annotated section 5-1-110(b) (l)-(3) (Repl. 1997) states that an offense must meet one of the following criteria to be considered a lesser-included offense: (1) it is established by proof of the same or less than all the elements of the greater offense; or (2) it consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or (3) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission. A trial court’s decision to exclude an instruction on a lesser-included offense will be affirmed only if there is no rational basis for giving the instruction. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001).
At trial, the judge instructed the jury that to convict Taylor of first-degree battery, the State must have proved beyond a reasonable doubt that Taylor, with the purpose of causing physical injury to Johnson, caused physical injury to Johnson by means of a firearm. Taylor’s proffered instruction on battery in the second degree stated:
If you have a reasonable doubt of the guilt of Rene Taylor on the charge of Battery in the First Degree you will then consider the charge of Battery in the Second Degree. To sustain this charge the State must prove beyond a reasonable doubt that:
Rene Taylor, with the purpose of causing physical injury to Carroll Johnson, caused serious physical injury to Carroll Johnson. OR
Rene Taylor recklessly caused serious physical injury to Carroll Johnson by means of a deadly weapon.
Definitions
“Serious physical injury” means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.
“Physical injury” means the impairment of physical condition or the infliction of substantial pain.
“Deadly weapon” means a firearm or anything manifestly designed, made, adapted for the purpose of inflicting death or serious physical injury or anything that in the manner of its use or intended use is capable of causing death or serious physical injury.
“Purpose” — A person acts with purpose with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.
“Recklessly” — A person acts recklessly with respect to the results of his conduct when he consciously disregards a substantial and unjustifiable risk that the results will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the defendant’s situation.
The proposed instruction for second-degree battery does not describe a lesser-included offense under Ark. Code Ann. § 5 — 1—110(b)(1) because both alternatives given in the proffered instruction require an additional element, serious physical injury, that is not required in the first-degree battery instruction that was given, which only requires physical injury when the injury is caused by a firearm. Likewise, the proposed instruction is neither a lesser-included offense under subsection (b)(2) because the offense is not an attempt offense, nor is it a lesser-included offense under subsection (b) (3) because it does not differ from the offense charged with respect to less serious injury to the victim to establish its commission.
Taylor’s proffered instruction on battery in the third degree stated:
If you have a reasonable doubt of the guilt of Rene Taylor on the charge of Battery in the First Degree and Battery in the Second Degree you will then consider the charge of Battery in the Third Degree. To sustain this charge the State must prove beyond a reasonable doubt:
That Rene Taylor, with the purpose of causing physical injury to Carroll Johnson, caused physical injury to Carroll Johnson. OR
That Rene Taylor recklessly caused physical injury to Carroll Johnson. OR
That Rene Taylor negligently caused physical injury to Carroll Johnson by means of a deadly weapon.
Definitions
“Physical injury” means the impairment of physical condition or the infliction of substantial pain.
“Deadly weapon” means a firearm or anything manifestly designed, made, adapted for the purpose of inflicting death or serious physical injury or anything that in the manner of its use or intended use is capable of causing death or serious physical injury.
“Purpose” — A person acts with purpose with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.
“Recklessly” — A person acts recklessly with respect to the results of his conduct when he consciously disregards a substantial and unjustifiable risk that the results will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the defendant’s situation.
“Negligently” — The term “negligently” as used in this criminal case means more than it does in civil cases. To prove negligence in a criminal case the State must show that defendant should have been aware of a substantial and unjustifiable risk that the injury would occur. The risk must have been of such a nature and degree that his failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involved a gross deviation from the standard of care that a reasonable person would have observed in his situation.
It is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by the slightest evidence; however, a trial court may refuse to offer a jury instruction on an included offense when there is no rational basis for a verdict acquitting the defendant of the charged offense and convicting him of the included offense. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). Where there is no evidence tending to disprove one of the elements of the larger offense, the trial court is not required to give an instruction on a lesser one; if after viewing the facts in the light most favorable to appellant, no rational basis for a verdict acquitting him of the greater offense and convicting him of the lesser one can be found, it is not error for the trial court to refuse to give an instruction on the lesser-included offense. Stultz v. State, 20 Ark. App. 90, 724 S.W.2d 189 (1987).
In the present case, there is no rational basis to give an instruction on the basis that Taylor recklessly or negligently caused physical injury to Johnson. Even viewing it in the light most favorable to Taylor, the evidence shows that he fired multiple shots at Johnson, pausing between some of the shots, and that Johnson was hit by three bullets. When Taylor began firing a gun at Johnson, it was presumed that he intended the natural and probable consequence of his actions, which was that he shoot Johnson.
The remaining alternative in the proffered instruction for third-degree battery is the same as the instruction that was given to the jury for battery in the first degree, with the exception that the first-degree battery required the use of a firearm. Although this alternative would be considered a lesser-included offense under Ark. Code Ann. § 5 — 1—110(b) (1), we hold that the trial judge did not err in refusing this portion of the proffered third-degree battery instruction based upon our supreme court’s holding in Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). In that case, the supreme court held that 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. Id.
In the present case, the only difference in the instruction for first-degree battery and that portion of the proffered instruction for third-degree battery that states “that Rene Taylor, with the purpose of causing physical injury to Carroll Johnson, caused physical injury to Carroll Johnson,” is the fact that for bat tery in the first degree, the injury must be caused by a firearm. There was no dispute that Johnson’s injuries were caused by a firearm shot by Taylor; therefore, Taylor was either guilty of battery in the first degree or he was innocent. For these reasons, there was no error in refusing to give the proffered instruction for third-degree battery.
Taylor’s last argument is that the trial judge erred in not granting a mistrial or admonishing the jury when the prosecutor, during the State’s closing argument, stated, “He [Taylor] never-said it was an accident.” Taylor requested a mistrial, arguing that the State had commented on his right not to testify. The State contended that he was referring to the statements made by Taylor in his call to the 911 operator. The motion for mistrial was denied, and the trial judge also declined to admonish the jury, stating that he did not believe that the statement deserved an admonishment. On appeal, Taylor argues that the prosecutor’s statement was an impermissible comment on his Fifth Amendment right not to testify.
The declaration of a mistrial is an extreme remedy and should only be granted when justice cannot be served by continuing the trial; mistrial is proper only where the error is beyond repair and cannot be corrected by any curative relief. Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). The circuit court has wide discretion in granting or denying a motion for a mistrial, and we will not disturb the trial court’s decision absent an abuse of discretion or manifest prejudice to the movant. Id.
In support of his argument, Taylor cites Doyle v. Ohio, 426 U.S. 610 (1976), for the proposition that the prosecution in a criminal case is prohibited from commenting on a defendant’s post-arrest, post-Miranda warning silence. However, a review of.the State’s closing argument indicates that the incident to which the prosecutor referred, Taylor’s call to and subsequent conversation with the 911 operator, occurred prior to his arrest and before he was Mirandized. Therefore, Doyle is not applicable in the instant case. See Cagle v. State, 68 Ark. App. 248, 6 S.W.3d 801 (1999). Furthermore, we find that the comment by the prosecutor during closing argument was not a comment on appellant’s right not to testify and that appellant’s interpretation ignores the context in which the comment was made. The trial judge did not err in denying Taylor’s motion for a mistrial and for an admonition to the jury.
Affirmed.
Jennings and Griffen, JJ., agree.
Until recently our caselaw required that an offense must meet three criteria to be considered a lesser-included offense: (1) it must be established by proof of the same or less than all the elements of the greater offense; (2) it must be of the same generic class as the greater offense; and (3) it must differ from the greater offense based upon the degree of risk to persons or property or upon grades of intent or culpability. See Goodwin v. State, 342 Ark. 161, 27 S.W.3d 397 (2000); Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999). The State noted in its brief that in Goodwin, supra, our supreme court recognized that there was a possible inconsistency between the case law and the provisions of Ark. Code Ann.-§ 5-1-110 (Repl. 1997) because the statute speaks in the disjunctive while the case law interprets the statute to read in the conjunctive. However, in McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), an opinion handed down on March 14, 2002, our supreme court addressed that inconsistency, holding that “the determination of when an offense is included in another offense depends on whether it meets one of the three tests set out in section 5-1-110(b)(3).” 347 Ark. at 921, 69 S.W.3d at 435. | [
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Karen R. Baker, Judge.
This is an action brought by appellee Misty Sparks for the wrongful death of her father, Robert “Grumpy” Long. Mr. Long bled to death on December 18, 1997, while he was a patient at the Baptist Medical Center in Little Rock. Appellee sued the hospital, the attending physicians, and appellant Arrow International (hereafter “Arrow”), alleging that their conduct proximately caused her father’s death. After settling her claims against the hospital and the physicians, appellee proceeded to trial against Arrow and received a $700,000 compensatory damage verdict. The jury apportioned twenty-five percent of the fault to Arrow, thus making it liable for $175,000 of the award. In addition, the jury held Arrow liable for 4 million dollars in punitive damages.
Arrow appeals from the verdict and makes four arguments. The first three involve evidentiary rulings by the trial court on the admission of expert testimony, the admission of prior, similar occurrences, and the exclusion of a witness’s deposition testimony. The fourth argument concerns the punitive-damage award. We find no error on any issue presented and therefore affirm the jury’s verdict.
Arrow manufactures a medical device called a percutaneous sheath introducer (PSI). The PSI facilitates the insertion of catheters into a patient’s body. The particular device at issue in this case is a two-piece apparatus. One piece is a long, straight sheath introducer, shaped something like a straw, with a lock on the end. The second piece has a valve that attaches to the end of the sheath lock and a clear plastic tube that dangles from a side port of the valve. The tube has a sealing cap on the end. When the PSI pieces are attached and implanted into a patient, the sheath introducer is placed in the patient’s vein, usually the jugular vein; the valve remains outside the patient, as does the side tube, which may be used for the introduction of fluids. If a catheter is threaded through the valve and sheath introducer, a catheter guard is often placed around the valve.
On December 11, 1997, Robert Long had a kidney removed at the White River Medical Center in Batesville, pursuant to a diagnosis of cancer. While there, a PSI was inserted into his right jugular vein to facilitate the use of a Swan-Ganz catheter, which monitored his cardiac output. On December 17, 1997, Long was transferred to Baptist Medical Center in Little Rock with the PSI still implanted and the Swan-Ganz catheter still attached. He was kept in intensive care for a period, but thereafter, his Swan-Ganz was removed, and he was transferred to a regular room. The PSI remained implanted, although it was not in use. According to the ICU nurse, she secured the valve and the side tube against Long’s body with tape before he was transferred.
On December 18, the floor nurse checked on Long at 2:40 a.m. and noted no problems. However, at 3:18 a.m., the nurse returned to the room and found a large pool of blood. Long was dead, having bled to death.
Appellee, as administratrix of her father’s estate, sued appellant on a products-liability theory, alleging that the two-piece design of the PSI was inherently dangerous and that the separation of the two pieces had caused Long to bleed to death. At trial, she advanced the theory that, when the catheter guard was removed from the PSI by turning it in a counter-clockwise motion, the valve, which likewise loosened in a counter-clockwise motion, inadvertently separated from the sheath, causing blood to flow from the separation point. Arrow defended on the theory that the bleeding occurred not from the point where the two pieces of the unit conjoined but through the side tube, from which Long had apparently removed the end cap.
To support its theory, Arrow presented the testimony of two nurses who said that, when Long’s condition was discovered, they saw blood coming from the side tube. Arrow also called Carl Bot-terbusch, the vice-president and general manager of its Cardiac Assist Division, who testified that, in his opinion, Long bled to death out of the side tube. Another of Arrow’s experts, Dr. Alfred Gervin, testified that it would have been possible for a patient to bleed to death out of the side tube in twenty minutes. To rebut this testimony, appellee called Dr. Brock Allen, who testified: “I do not think there’s any way that [Long] could have ever bled to death through this tiny hole with this small amount of pressure pushing the blood in that direction because it would have clotted before he ever lost his entire blood volume and died from that.” Arrow objected to Allen’s testimony on the grounds that he had no expertise in fluid mechanics and.his opinion had no reliable scientific basis, as required by Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993). The trial judge allowed Dr. Allen to testify, and for its first issue on appeal, Arrow contends that the admission of Allen’s testimony was error.
The admission of rebuttal evidence is within the sound discretion of the trial court, and we will not reverse absent an abuse of discretion. Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000). Further, if an opponent of expert testimony contends that the expert is not qualified, the opponent bears the burdén of showing that the testimony should be stricken. See Collins v. Hinton, 327 Ark. 159, 937 S.W.2d 164 (1997). With these standards in mind, we address Arrow’s first claim that Dr. Allen testified regarding a matter that was outside his area of expertise.
Arrow contends that Dr. Allen was not qualified to offer an opinion regarding blood flow through the side tube because he was not an expert in fluid mechanics. We disagree. While experts may not offer opinions that range too far outside their area of expertise, see, e.g., Brunson v. State, 349 Ark. 300, 79 S.W.3d 304 (2002), the opinion rendered by Dr. Allen did not require him to be an expert in any field other than the one in which he was unquestionably qualified, the field of medicine. Dr. Allen was an emergency room physician with approximately sixteen years of experience. He was familiar with the two-piece PSI and the diameters of both its tubes (2.8 mm on the sheath introducer and 1.6 mm on the smaller side tube). In his practice, he had used “triple-lumen” catheters with small diameters like that of the PSPs side tube. He explained to the jury that, based on his experience with the triple-lumens, which required the administration of a special solution to keep a patient’s blood from clotting, Long’s blood would have clotted before he bled to death through the side tube. He also told the jury about his consultation with another physician, Dr. Margaret Kuykendall, who also did not believe that Long could have bled such a large amount out of the small side tube opening. Finally, he testified that, in all his years of practice, he had never heard of a person bleeding to death through a tube like the side tube of the PSI.
Rule 702 of the Arkansas Rules on Evidence entitled “Testimony of Experts” reads:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
(Emphasis added.) The rule expressly recognizes that an expert’s testimony may be based on experience in addition to knowledge and training. Further, Ark. R. Evid. 704 permits an expert to rely, as Dr. Allen did, on information provided by others in the formulation of his opinion. See Killian v. Hill, 32 Ark. App. 25, 795 S.W.2d 369 (1990).
If some reasonable basis exists demonstrating that a witness has knowledge of a subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Brunson v. State, supra. There is a decided tendency to permit the fact-finder to hear the testimony of persons having superior knowledge in a given field, unless they are clearly lacking in training and experience. Killian v. Hill, supra. Dr. Allen’s experience as an emergency room physician and his attendant knowledge of blood flow through small tubes gave him an insight into the subject beyond that of the ordinary person. The fact that Dr. Allen’s testimony was not based on flow rates, viscosity, friction, or other scientific properties of blood flowing through a 1.6 mm opening, was a matter for the jury to consider in determining the weight to be accorded Dr. Allen’s testimony. The questionability of the factual underpinning of an expert’s opinion goes to the weight and credibility, rather than to the admissibility, of the opinion in evidence. See Killian v. Hill, supra.
Arrow’s other argument on this point is that Dr. Allen’s testimony did not meet the Daubert test of reliability. This test is derived from the landmark Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, supra, in which the Supreme Court established an inquiry to be conducted by the trial court when faced with the admissibility of certain expert testimony. As our supreme court explained in Farm Bureau Mutual Insurance Co. v. Foote, supra, in adopting Daubert, a trial judge must determine at the outset whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Farm Bureau Mut. Ins. Co. v. Foote, supra. This inquiry entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue. Id. A primary factor for a trial court to consider in determining the admissibility of scientific evidence is whether the scientific theory can be or has been tested. Wood v. State, 75 Ark. App. 22, 53 S.W.3d 56 (2001). Other factors include whether the theory has been subjected to peer review and publication, the potential error rate, and the existence and maintenance of standards controlling the technique’s operation. It is also significant whether the scientific community has generally accepted the theory. Id.
This preliminary assessment of reliability is known as the trial court’s gatekeeping function. See Wood v. State, supra. We observe that, in the more recent case of Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court clarified that the Daubert factors are not limited to scientific expert testimony but may be applied to testimony based on technical or other specialized knowledge.
Arrow argues that Dr. Allen’s testimony did not meet the Daubert test because it was not based on testing or other scientific method but was merely “anecdotal” and that the trial court, by allowing Allen’s testimony, failed to perform its gatekeeping function. However, we conclude that the Daubert inquiry, which seeks to determine the dependability of an expert’s methods, is of little value in the present case. First of all, our court has stated that the Daubert factors are applicable to “novel” scientific evidence, theory, or methodology. See Regions Bank v. Hagaman, 79 Ark. App. 88, 84 S.W.3d 66 (2002). Allen’s testimony in this case is not novel in any respect. Additionally, the Daubert and Kumho Tire opinions recognize that not all expert testimony is subject to the Daubert analysis. The inquiry to be made by the trial court is a flexible one, not a rigid one. See Daubert, 509 U.S. at 594-95; Regions Bank v. Hagaman, supra. Further, the Daubert factors neither necessarily nor exclusively apply to all experts or in every case. Kumho Tire, 526 U.S. at 141. The law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. Id. at 142; Regions Bank v. Hagaman, supra. Moreover, the factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony. Kumho at 150.
Dr. Allen’s testimony in this case was based on experience and observations rather than methodology, and his opinion was not buttressed by scientific or technical testing or analysis. We recognize that a Daubert inquiry may, in some instances, help to evaluate the reliability of experience-based testimony, Kumho at 151; however, a Daubert inquiry into the reliability of Dr. Allen’s testimony was not warranted in this particular case. Nevertheless, we note that the trial court conducted a reliability inquiry, out of the jury’s presence, to determine Allen’s experience and familiarity with blood flow and clotting. We conclude that the trial court did not abuse its discretion in admitting Dr. Allen’s rebuttal testimony.
The next issue concerns the trial court’s admission of thirty-six Medical Device Reports (MDRs), generated by Arrow pursu ant to federal law. Such reports record incidents of medical device malfunction and contain short but detailed descriptions of what happened in each case. Appellee initially planned to introduce approximately sixty reports of incidents that occurred between 1991 and 2000 in which a patient died or suffered serious injury when a sheath introducer disconnected from a valve in an Arrow two-piece PSI. The trial judge ruled that some of the MDRs contained incidents that were not substantially similar to the incident in this case, and he excluded some of the MDRs. However, he allowed the introduction of thirty-six prior incidents that occurred between 1992 and 1997. His ruling was based in part on the testimony of Dr. Margaret Kuykendall that a substantial similarity existed between the information contained in the thirty-six MDRs and the incident that occurred in this case.
The general rule with respect to the admissibility of evidence of similar occurrences is that they are admissible only upon a showing that the events arose out of the same or substantially similar circumstances. Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993); Houston Gen. Ins. Co. v. Arkansas La. Gas Co., 267 Ark. 544, 592 S.W.2d 445 (1980). The burden rests on the party offering the evidence to prove that the necessary similarity of conditions exists. Massey, supra. The relevance of such evidence is within the trial judge’s discretion, subject to reversal only if an abuse of discretion is demonstrated. Id.
Arrow argues that appellee did not meet her burden of proving that the thirty-six incidents reflected in the MDRs were substantially similar. However, Arrow does not tell us how the thirty-six incidents differ from the one in the case at bar. Although it was appellee’s burden below to prove the admissibility of the prior occurrences, it is Arrow’s burden on appeal to demonstrate reversible error. Collins v. Hinton, supra. In any event, we hold that the prior incidents are substantially similar and therefore admissible. Our review reveals that each prior incident involved the same Arrow two-piece PSI design as was used on Long. In each case, the two pieces disconnected at the valve, causing the patient to either die or suffer injury. Many of the reports contain words to the effect that the cause of the separation was unknown, although user error or the patient pulling out his catheter were sometimes suspected.
Although appellee did not prove that the circumstances in the prior incidents matched precisely with the circumstances of this case, exact identity of circumstances is not required for admissibility of prior occurrences. See Ford Motor Co. v. Massey, supra, citing with approval Four Corners Helicopters v. Turbomeca, S.A, 979 F.2d 1434 (10 Cir. 1992). Appellee did show that the incidents were substantially similar in that they involved the unintended separation of an Arrow PSI in such a manner that death or serious injury resulted. The reports themselves contained data sufficient to conclude that, in the prior instances, a patient died or was seriously injured when, for unknown reasons the PSI separated while the patient was hospitalized. Further, whether an occurrence is substantially similar depends on the underlying theory of the case. Massey, supra. Appellee’s theory was that the two-piece design was inherently dangerous and separated inadvertently. These prior incidents were introduced to show a propensity for the device to separate inadvertently. Finally, we note that appellee’s theory on her punitive-damages claim was that appellant was aware of the dangerous nature of the device yet continued to market it without a proper warning being given to users. The substantial similarity requirement is relaxed when evidence of other incidents is used to show notice or awareness of a potential defect. Massey, supra. We conclude that the trial court did not abuse its discretion in admitting the prior, similar occurrences.
We turn now to Arrow’s third argument regarding the trial court’s decision to exclude the deposition testimony of Sue Hyl-ton, the Risk Assessment Manager at Baptist Medical Center. Hylton stated in her deposition that Baptist decided to change from a two-piece PSI to a one-piece model because the one-piece model had a clamp on the side tube. Arrow wanted to use Ms. Hylton’s testimony to rebut appellee’s inference that Baptist switched from a two-piece PSI to a one-piece unit as a result of Long’s death. Appellee objected on the basis of hearsay. The trial court read the deposition and made a page-by-page ruling as to what parts of the deposition he would exclude. Arrow contends that the trial court, by. these rulings, prevented-it from offering Hylton’s testimony regarding the reason for the hospital’s switch to a one-piece device. In particular, Arrow argues that Hylton’s statements were not hearsay and that her deposition was admissible under Ark. R. Civ. P. 32.
As appellee points out, and our review confirms, the trial court in fact did not exclude all the portions of Hylton’s deposition that explained the hospital’s switch to a one-piece unit. The trial court did not exclude all portions of Hylton’s deposition explaining her desire to switch to a device with a thumb clamp. Thus, nothing in the trial court’s ruling prohibited Arrow from utilizing a pertinent part of Hylton’s testimony, and Arrow is therefore unable to demonstrate prejudice. We will not reverse a trial court’s evidentiary ruling absent a showing of prejudice. Belz-Burrows v. Cameron Constr. Co., 78 Ark. App. 84, 778 S.W.3d 126 (2002).
Finally, we address Arrow’s argument that its conduct did not merit an award of punitive damages and that the damages awarded were excessive. Arrow’s argument on this point asks only that we undertake a de novo review of the record in order to determine if the award of punitive damages in this case was unconstitutionally excessive.
A jury may be instructed on punitive damages when there is evidence that a defendant likely knew or ought to have known, in light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in reckless disregard of the consequences, from which malice could be inferred. See Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998); Dixon Ticonderoga Co. v. Win- burn Tile Mfg. Co., 324 Ark. 266, 920 S.W.2d 829 (1996). In reviewing a punitive award, we consider all circumstances, including: the extent and enormity of the wrong, the intent of the party committing the wrong, and the financial and social condition and standing of the defendant. See Routh Wrecker Serv. v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998). We review the proof and all reasonable inferences therefrom in the light most favorable to the appellee, and we determine whether the award is so great as to shock the conscience of the court or demonstrate passion or prejudice on the part of the trier of fact. Id. In addition, we consider whether the punitive award is excessive in light of the defendant’s conduct and as compared with the compensatory award. See BMW of N. Am. v. Gore, 517 U.S. 559 (1996).
In the present case, the jury awarded a total of $700,000 in compensatory damages of which Arrow was responsible for $175,000. The jury also awarded $4,000,000 in punitive damages attributable to Arrow, which had a net worth of $300,000,000. The evidence showed that in 1995 Arrow was aware, through various reports from the facilities using the two-piece product, of the problem with the two-piece PSI disconnecting, and had notice that numerous deaths and injuries had occurred that were associated with the use of the two-piece product. Further, in 1995 appellant decided to begin recommending the one-peice design, which it claimed was a safer product. Nevertheless, appellant failed to provide adequate and timely warnings to users of the two-piece device, until August 1997 and continued to manufacture and sell the two-piece PSI. Employing the above-mentioned standards, we find no basis for reversal or reduction of the punitive award.
For the reasons stated herein, we affirm.
Affirmed.
Bird and Vaught, JJ., agree.
In fact, Arrow’s counsel ably cross-examined Dr. Allen in this regard.
We use the term “MDR” in this case to include certain complaint logs prepared by Arrow as a prelude to filing an actual report.
Arrow argues that the trial judge erred in relying on Dr. Kuykendall to establish the admissibility of the MDRs, but our review of the record indicates that the doctor’s testimony was not the sole basis for the judge’s decision. In other words, the judge did not abdicate his responsibility regarding the admission of evidence to an expert witness.
The only prior incident we question is one that specifically states that the patient’s cause of death was not direcdy attributable to separation of the PSI device. However, this one incident out of thirty-six does not require reversal. | [
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John E. Jennings, Judge.
Benjamin Oliver was charged with first-degree murder in connection with the shooting death of George Dove. Prior to trial, the circuit court conducted a Denno hearing after Oliver moved to suppress a statement he gave to the police. The court ruled that Oliver’s statement was admissible and after a jury trial he was found guilty. Oliver was sentenced to sixty years in prison.
His sole argument on appeal is that the trial court erred in admitting his confession absent the testimony of a material witness. We agree and reverse and remand.
At the suppression hearing, Oliver testified that officers threatened to beat him with a “blackjack” or “billy club” during the course of the questioning. Detective Steve Knowles, who conducted the interview, testified at the suppression hearing. Detective Chuck Ray, who was also present, but took no significant part in the questioning, was not called as a witness.
In Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973), the supreme court held that:
[Wjhenever the accused offers testimony that his confession was induced by violence, threats, coercion, or offers of reward then the burden is upon the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence.
The court in Smith relied in part on People v. Armstrong, 282 N.E. 2d 712 (Ill. 1972).
In Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995), the supreme court restated the rule:
The State has the burden to produce all material witnesses who were connected with the controverted confession or give an adequate explanation of their absence. (Emphasis in original.)
The court in Griffin noted that since Armstrong the rule had been repudiated in Illinois. See People v. R.D., 155 Ill.2d 122, 613 N.E.2d 706 (1993).
There is no requirement that the issue of the State’s failure to call all material witnesses be raised in the trial court. Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001); Matthews v. State, 261 Ark. 532, 549 S.W.2d 492 (1977).
The question, then, is whether Detective Ray was a material witness. In Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996), the court said:
In determining whether a witness is “material,” this court has stated that there must be some connection between the witness and the alleged acts of coercion or an opportunity to observe the alleged coercion.
In Smith v. State, 256 Ark. 67, 505 S.W.2d 504 (1974), the court said:
The State’s evidence shows that Hale was present when Smith made the statement, and his name was signed as a witness at the end of the statement. It goes without saying that he was a material witness on the question.
The State relies on Hayes v. State, 269 Ark. 47, 598 S.W.2d 91 (1980). In Hayes the State called the two officers who were primarily responsible for conducting the questioning as witnesses at the Denno hearing. The State did not call Lieutenant Moore who was also present. The supreme court held that the State was not required to call Moore.
It is true, as the State contends, that Moore’s participation in the questioning was virtually the same as Detective Ray’s participation in the case at bar. The difference is that in Hayes there was no allegation of coercion or mistreatment, while here Oliver contends that he was threatened with physical violence.
In Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995), the court said, “There must be some connection between the alleged acts of coercion or an opportunity to observe the alleged coercion.” Id. at 214 (quoting Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979), cert. denied, 446 U.S. 938 (1980) (emphasis in Griffin)). The court in Griffin found that the absent witnesses (jailers) were not material because “they were not in a position to observe the alleged coercion.”
In the case at bar Detective Ray, while taking no significant part in the questioning, was in a position to observe the alleged coercion, and therefore it was error not to require that he be called as a witness. We agree with the State, however, that only a “limited remand” is required. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980); Burnett v. State, 71 Ark. App. 142, 27 S.W.3d 454 (2000); Guinn v. State, 27 Ark. App. 260, 771 S.W.2d 290 (1989). We remand the case to the circuit court for the purpose of conducting a new Denno hearing. If the trial court determines, at the conclusion of the hearing, that the statement was not given voluntarily, the court should suppress the statement and order a new trial. If the court determines that the defendant’s statement was voluntarily given, a new trial will not be required. See e.g., Burnett v. State, supra.
Reversed and remanded.
Robbins and Crabtree, JJ., agree. | [
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Larry D. Vaught, Judge.
Appellant, Tom Alfano, brings this appeal contending that the chancery court erred by setting child support at an amount that deviated from the presumptive amount set out in the child support guidelines without following the proper procedure. We agree and reverse.
The facts of this case are not in dispute. The parties were divorced on April 7, 1998. Custody of their minor child, Emily Alfano, was awarded to appellee, Kellie Dawn Alfano. Pursuant to the property settlement agreement, which was incorporated into the divorce decree, the parties agreed to the amount of child support to be paid by appellant. The child-support provision of the property-settlement agreement provided in pertinent part:
Husband will pay on the 1st day of each month beginning April 1, 1998 the sum of $750.00 per month as child support for the support, maintenance, and nurture of Emily until such time as he completes his residency program or June 1, 1999, whichever occurs first. Thereafter, Husband will pay to Wife on the 1st day of each month the sum equivalent to 17.5% of his income (after proper deductions consistent with the Supreme Court’s latest Per Curiam Order) for the support, maintenance, and nurture of Emily.
A review hearing of the child-support award was held on July 11, 2000, and appellant informed the court that he was relocating to Alaska and did not anticipate having any substantial income for six months while his patient charges were collected. In a September 15, 2000, order, the court found that there was sufficient evidence to impute income to appellant an amount sufficient to justify child support of $865, which was the amount appellant was already paying. The court ordered that the child-support issue was subject to adjustment at a review hearing to be held on February 1, 2001.
At the February 2, 2001, review hearing, the parties stipulated that appellant earned an average monthly income of $12,347.66. Appellant argued that the child-support amount should not be based on the 17.5 percent of his income agreed to in the property-settlement agreement, but should be reduced to 15 percent based on the presumptive amount set by the family-support chart, unless appellee justified an upward deviation. The chancellor ordered that appellant continue paying at the rate of 17.5 percent because the amount of support set by the child-support chart is a rebuttable presumption and the parties agreed to 17.5 percent. Based on the 17.5 percent rate, appellant was ordered to pay $2,160.84 in child support based on his average monthly income. From that decision comes this appeal.
The standard of review for an appeal from a child-support order has been recently set-out in McWhorter v. McWhorter, 346 Ark. 475, 480, 58 S.W.3d 840, 843 (2001):
We review chancery cases de novo on the record, and we will not reverse a finding of fact by the chancery court unless it is clearly erroneous. Ark. R. Civ. P. 52(a); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). In reviewing a chancery court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Hunt v. Hunt, 341 Ark. 173, [15 S.W.3d 334]. As a rule, when the amount of child support is at issue, we will not reverse the chancellor absent an abuse of discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). However, a chancellor’s conclusion of law is given no deference on appeal. City of Lowell v. M & N Mobile Home Park Inc., 323 Ark. 332, 916 S.W.2d 95 (1996).
The child-support issue in this case began with an agreement by the parties incorporated into the divorce decree. While the general rule is that the court cannot modify the parties’ contract that is incorporated into the decree, our courts have recognized an exception to this rule in child-custody and support matters and have held that provisions in such independent contracts are not binding. Warren v. Kordsmeier, 56 Ark. App. 52, 938 S.W.2d 237 (1997). The chancellor always retains jurisdiction over child support as a matter of public policy, and no matter what an independent contract states, either party has the right to request modification of a child support award. Id.
Appellant raises six issues on appeal in which he argues that the case should be reversed because the chancellor failed to follow the proper procedure in awarding child support by failing to refer to the most recent version of the family-support chart, to recognize the presumptive amount to be awarded pursuant to the chart, to make a written finding that the application of the chart is inappropriate or unjust, and to include a justification for the deviation.
The most recent version of the child-support chart, applicable to this case, is found at In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 331 Ark. Appx. 581 (1998). Section I addresses the rebuttable presumption created by the chart:
It is a rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the Family .Support Chart is the amount of child support to be awarded in any judicial proceeding for divorce, separation, paternity, or child support. The court may grant less or more support if the evidence shows that the needs of the dependents require a different level of support.
It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a specific written finding within the Order that the amount so calculated, after consideration of all relevant factors, including the best interests of the child, is unjust or inappropriate. Findings that rebut the guidelines shall state the payor’s income, recite the amount of support required under the guidelines, recite whether or not the Court deviated from the Family Support Chart and include a justification of why the order varies from the guidelines as may be permitted under SECTION V. hereinafter.
Id. at 582. Section V sets forth the relevant factors to be considered in determining the amount of support. Arkansas Code Annotated section 9-12-312 (a) (2) (Repl. 2002) also sets forth guidelines to be followed in setting the amount of child support:
In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.
Arkansas Code Annotated section 9-14-106 (Repl. 2002) contains language virtually identical to § 9-12-312 (a) (2).
At the conclusion of the review hearing, the chancellor stated that the statute required the court to refer to the chart and follow the, chart unless it found that it would be inappropriate to do so. The court found that it would be inappropriate to follow the chart under the circumstances and ordered appellant to pay at the rate of 17.5 percent. The written order provided:
The [appellant] argued that the 17.5% should be reduced to 15% based upon a presumption that the chart level of support should be applied unless [appellee] can show reasons for an upward adjustment in child support. That the Court finds the support set by the child support chart in the per curiam orders of the Arkansas Supreme Court are rebuttable presumptions and that since the parties’ [sic] agreed to the 17.5% and it was not ordered by the Court, then the [appellant] shall be required to continue paying at the rate of 17.5%.
In setting child support in accordance with the parties’ agreement, the chancellor failed to follow the correct procedures in deviating from the chart amount. The chancellor failed to make a specific written finding after considering all relevant factors, that the chart amount was inappropriate or unjust. Administrative Order No. 10 requires the chancellor to consider the deviation factors set out in Section V of Administrative Order No. 10 and include in his findings a justification of why the order varies from the guidelines. Instead, the chancellor relied solely on the agreement of the parties as to why the chart amount would be inappropriate. The provisions of the property settlement agreement with regard to child support do not compel a court to ignore the relevant factors to be used in arriving at a fair determination of support. While a chancellor may choose to base an award on the agreed amount, that decision must be made after following the proper procedure. Therefore, we must reverse because the chancellor did not strictly adhere to the requirements of the statute and Administrative Order No. 10. See Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991) (reversing the chancellor’s increase in child support where the appellate court was unable to determine whether the chancellor followed the correct procedure because there was no family support chart amount set out in the order and the order did not indicate whether the relevant deviation factors were considered). See also Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992)(holding that reference to chart amount being “unreasonable” was an insufficient explanation for rejecting chart amount since it is presumed to be reasonable).
Appellee contends that the chancellor was not required to make findings or reference the chart because appellant failed to prove a change of circumstances warranting a modification of child support. A party seeking modification of the child-support obligation has the burden of showing a change in circumstances sufficient to warrant the modification. Weir v. Phillips, 75 Ark. App. 208, 55 S.W.3d 804 (2001). There is a presumption that the chancellor correctly fixed the proper amount in the original divorce decree. Ross v. Ross, 29 Ark. App. 64, 776 S.W.2d 834 (1989). In Ross, we stated that when support has been previously set in a decree, a change of circumstances must be found before the § 9-12-312 is applicable. Arkansas Code Annotated section § 9-14-107 (c) (Repl. 2002) provides:
(c) An inconsistency between the existent child support award and the amount of child support that results from application of the family support chart shall constitute a material change of circumstances sufficient to petition the court for review and adjustment of the child support obligated amount according to the family support chart, after appropriate deductions, unless:
(1) The inconsistency does not meet a reasonable quantitative standard established by the state, in accordance with subsection (a) of this section; or
(2) The inconsistency is due to the fact that the amount of the current child support award resulted from a rebuttal of the guideline amount and there has not been a change of circumstances that resulted in the rebuttal of the guideline amount.
In Tucker v. Tucker, 74 Ark. App. 316, 49 S.W.3d 145 (2001), this court applied § 9-14-107(c) in upholding a modification of child support. Because the court found section (c) applicable and none of the exceptions applied, we could not say that the judge’s finding of a material change of circumstances was clearly erroneous. In the instant case, because there was an inconsistency between the existent child-support award (17.5 percent of appellant’s income) and the amount that resulted from the application of the chart (15 percent) and none of the exceptions applied, a material change of circumstances existed sufficient for appellant to petition the court for review and adjustment of the child support, contrary to appellee’s argument.
As a result of Ark. Code Ann. § 9-14-107(c), parties cannot with any security enter into agreements regarding child support that vary by even a small amount from the family-support chart. Although there are numerous reasons why parties would enter into such agreements, counsel for such parties should consider setting out in the support order reasons for the variance that would constitute a “rebuttal” of the chart and obtaining the approval of the trial court before entering into such agreements in the future.
We reverse and remand for the trial court to enter an order consistent with this opinion.
Reversed and remanded.
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Olly Neal, Judge.
This appeal is from the Pulaski County Circuit Court wherein the trial court terminated the parental rights of appellant as to S.B. and J.W., her two minor children. On appeal, appellant argues (1) the trial court lacked jurisdiction to terminate her parental rights; (2) the trial court erred by violating Arkansas law and her due process rights by failing to hold an adjudication hearing after the November 2000 probable cause hearing; and (3) the trial court erred in finding that there was sufficient evidence to terminate her parental rights. We affirm.
Appellant’s first contention is that the trial court lacked jurisdiction to terminate her parental rights because the court failed to hold an adjudication hearing following the November 9, 2000 probable-cause or emergency hearing. We disagree and affirm on this point.
Arkansas Code Annotated section 9-27-306 (Repl. 2002) establishes the extent of a juvenile court’s jurisdiction. Inter alia, it provides that the juvenile courts of this State shall have original, exclusive jurisdiction for proceedings in which a juvenile is alleged to be delinquent or dependent-neglected, those in which a family is alleged to be in need of services, and proceedings involving the termination of parental rights. Ark. Code Ann. § 9-27-306 (Repl. 2002).
Probable-cause hearings are limited to the purpose of determining whether probable cause existed to take a juvenile from the home and to determine whether probable cause still exists to protect the juvenile. Ark. Code Ann. § 9-27-315(a)(l)(B) (Repl. 2002). At the probable-cause hearing, the court is required to set the time and date for the adjudication hearing, which must be held within an absolute maximum of fifty days of the probable-cause hearing. Ark. Code Ann. § 9-27-315(e) (Repl. 2002). All other issues, with the exception of custody and services, shall be reserved for hearing by the court at the adjudication hearing conducted subsequent to the probable-cause hearing. Ark. Code Ann. § 9-27-315 (a) (2) (A) (Repl. 2002).
An adjudication hearing is held to determine whether the allegations in a petition are substantiated by the proof. Ark. Code Ann. § 9-27-327(a) (Repl. 2002). “The adjudication hearing shall be held within thirty (30) days of the emergency hearing, but may be continued for no more than twenty (20) days following the first thirty (30) days on motion of any party for good cause.” Ark. Code Ann. § 9-27-315 (Repl. 2002). Where the court has approved the return of a child to the mother, our supreme court has held that DHS retains legal custody of the child until the date on which the court enters an order permitting it to close its protective-services case and dismiss the action. See Moore v. Arkansas Dep’t of Human Servs., 333 Ark. 288, 969 S.W.2d 186 (1998).
In any case where there is probable cause to believe that immediate emergency custody is necessary to protect the health or physical well-being of a child from immediate danger, the court may issue an ex parte order for emergency custody. Ark. Code Ann. § 9-27-315 (Repl. 2002). Following the issuance of an emergency order, the court must hold a hearing to determine if probable cause to issue the order continues to exist. Ark. Code Ann. § 9-27-315 (Repl. 2002). At the emergency hearing, the court shall schedule an adjudication hearing. Ark. Code Ann. § 9-27-315(d)(1) (Repl. 2002). The use of the word “shall” in a statute means that the legislature intended mandatory compliance with the statute unless such an interpretation would lead to an absurdity. Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001).
Appellant went with her children into her probation officer’s office on June 4, 1999. The affidavit in support of the Petition for Emergency Custody provided that appellant was very tearful and irrational. “She was crying, yelling, screaming, and reading the Bible. The mom’s behavior was erratic. She started going down the hallways making lots of noise and disturbing court already in session.” Appellant was asked whether or not she. was on drugs, to which she replied that she was not and that they could test her. While being tested, appellant urinated in her panties and then did not put them back on. She tested positive for marijuana and possible PCP and was held in jail due to her behavior.
On June 15, 1999, a probable-cause hearing was held, at which time the trial court determined that probable cause existed to remove the children from the appellant’s custody and ordered that the children remain in DHS custody. On August 3, 1999, the court held an adjudication hearing and determined that the children were dependent-neglected. The court ordered that the children remain in DHS custody and ordered family services, including a psychological evaluation and random drug/alcohol screening for appellant.
In February of 2000, the trial court issued an order that allowed appellant to have unsupervised, overnight visitation with her children, and in the May 23, 2000 permanency planning hearing, the trial court returned custody of the children to appellant. In making this decision, the court provided:
I will order the return of the children. I have no problem doing that, but it would be premature for the Court to terminate its involvement. It would take a most unusual case for me to close it on the day that we return the children home because the proof of the pudding is what happens after the children get home. I can’t imagine a case where I would close it the first day we return the children home because I want to follow up and make sure that everything works. ... I would not remove the Court’s authority at this point. I’m at least scheduling us for one more review to make sure that things have actually gone well with the reunification. ... I am going to require DHS to maintain a protective-services file. I want at least one home visit every two weeks until we can come back to court and make sure that things are going well.
Further, the court, in the order, provided that jurisdiction was continued. The children remained in appellant’s custody until October 11, 2000, when DHS filed a Motion for Ex Parte Emergency Change of Custody, following an incident where Ms. Walters walked in front of cars with her youngest son, J.W. The children remained in DHS custody until the termination proceedings.
The court noted on several occasions that it would retain jurisdiction over the case. The probable-cause/emergency retaking of custody hearing was simply a hearing held to protect appellant’s rights with regard to whether or not the taking of the children into DHS custody was appropriate. Appellant was afforded that hearing on November 9, 2000, at which time the court determined that probable cause existed. During the hearing, the court stated “this is essentially a probable-cause hearing as to DHS’ removal.” It was unnecessary for the court to hold an adjudication hearing at this juncture because the children were already adjudicated dependent-neglected. Thus, we conclude that jurisdiction was proper.
In the alternative, appellant argues that the trial court erred by violating Arkansas law and her due process rights by failing to hold an adjudication hearing after the November 2000 probable-cause hearing. We do not reach the due process argument as it was not raised below. Failure to raise the challenge below is fatal to the appellate court’s consideration on appeal. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Even constitutional issues will not be considered when raised for the first time on appeal. Id.
Appellant’s final argument is that the trial court erred in finding that there was sufficient evidence to terminate her parental rights. 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. Dinkins v. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Arkansas Code Annotated section 9-27-341 (Supp. 1999) allows a court of competent jurisdiction to terminate the rights of a parent if
a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent.
Termination of parental rights is an extreme remedy and is in derogation of the natural rights of the parents; however, parental rights should not be allowed to continue to the detriment of the child’s welfare and best interests. Id. Arkansas Code Annotated section 9-27-341 (b)(3) (Supp. 1999) requires that “an order terminating parental rights ... be based upon a finding by clear and convincing evidence.” When the burden of proving a disputed fact is by clear and convincing evidence, the question that must be answered on appeal is whether the court’s findings that the disputed fact was proven by clear and convincing evidence was clearly erroneous. Dinkins, supra. “Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the allegations sought to be established.” Id.; see Wade v. Arkansas Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999).
In making its determination, the court duly noted that DHS failed to show a compelling reason to continue reunification; nor did it ask to terminate its petition. The court found that there were no compelling reasons to continue attempting to reunify the family, as it would be contrary to the children’s best interest, health and safety, and welfare to return them to the parental care and custody of their mother and the children had been out of the home well in excess of one year. The court relied in part on the testimony of Dr. Greg Kazinski who testified that, in his opinion, Walters could not adequately parent her children. We give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Anderson v. Douglas, supra.
Given our deferential standard of review, we are not left with a definite and firm conviction that a mistake has been made. The evidence reveals that the children have been out of the home over a year. Although Walters has made some progress, she is still not able to adequately care for her children. The trial court’s decision to terminate appellant’s parental rights was not clearly erroneous.
We affirm.
Pittman and Crabtree, JJ., agree. | [
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John Mauzy Pittman, Judge.
The appellant in this criminal case was convicted of DWI, fourth offense, and of driving on a suspended license. He was sentenced to twenty-four months in the Arkansas Department of Community Punishment. This appeal followed.
For reversal, appellant contends that the evidence was insufficient to support his conviction of driving while intoxicated, and that the trial court erred in admitting evidence of the breathalyzer test result. We affirm.
On appeal from a criminal conviction, we review the sufficiency of the evidence prior to the consideration of trial errors. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). We determine the sufficiency of the evidence by viewing the evidence adduced at trial in the light most favorable to the appellee, and the judgment is affirmed if there is substantial evidence to support the verdict. Id. Substantial evidence is evidence of sufficient force and character as to compel a conclusion one way or the other with reasonable and material certainty. Id.
Viewing the evidence, as we must, in the light most favorable to the appellee, the record reflects that Arkansas State Trooper Charles Watson noticed appellant standing in a yard, near appel lant’s vehicle, talking to a young woman. Trooper Watson knew appellant’s driver’s license was suspended. Because Trooper Watson expected appellant to drive his vehicle illegally, he continued to observe. Appellant did enter his vehicle and begin to drive. Trooper Watson pursued appellant and stopped him immediately, appellant turning into a driveway two houses away from where he began driving. When Trooper Watson approached appellant, he noticed an odor of intoxicating beverages about his person and observed an open beer can in his vehicle. After administering field sobriety tests, Trooper Watson took appellant into custody and administered a breathalyzer test that indicated appellant’s blood alcohol level was .207.
Arkansas Code Annotated § 5-2-403 provides, in pertinent part, that:
(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, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
The challenge to the sufficiency of the evidence in the present case is based on the unusual argument that the police officer was an accomplice to the appellant’s offense because he testified that he “knew” the appellant was going to drive illegally when he first saw him, but failed to take immediate steps to prevent him from doing so. Thus, the argument goes, the police officer, having a duty to prevent the commission of all crimes, was an accomplice to appellant’s crime; consequently, the evidence is insufficient because the only evidence against appellant was obtained from the police officer, an “accomplice” whose testimony must be corroborated for the evidence to be legally sufficient. We disagree.
This precise issue has not yet arisen in Arkansas. However, cases from sister jurisdictions with similar statutory provisions regarding accomplice liability indicate that accomplice lia bility under subsection (a)(3) arises only when a person with the legal duty to prevent the commission of an offense fails to do so with the intent to promote or assist the commission of the offense. See Porter v. State, 570 So.2d 823 (Ala. Crim. App. 1990); see also Powell v. United States, 2 F.2d 47 (4th Cir. 1924); see generally W. LaFave and A. Scott, Substantive Criminal Law § 6.7 (1986). There is no indication in the present case that Trooper Watson intended to promote or assist the commission of the offense. Furthermore, it is indisputable that the police officer in the present case did prevent the commission of the crime by apprehending appellant soon after he began driving. There is a difference between expecting that a crime is about to be committed and knowing that a crime is about to be committed. Here the police officer acted with reasonable speed to stop the offense once he was certain that it was being committed, and he cannot be considered to be an accomplice.
Appellant also argues that the breathalyzer test should not have been admitted into evidence because, although Trooper Watson testified that he observed appellant in excess of the twenty-minute period required by Arkansas Department of Health, Arkansas Regulations for Alcohol Testing § 3.40 (1995 ed.), he could not say with certainty that his watch was synchronized with the timer on the breathalyzer machine. Thus, appellant asserts, the State failed to meet its burden of showing that the officer complied with the regulation requiring that the test subject be observed for twenty minutes prior to the administration of the breathalyzer test.
We find no error. The decision to admit evidence is within the trial court’s discretion, and we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of that discretion. McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001). The question in the present case is essentially one of the degree of credibility and weight to be afforded the officer’s testimony that he observed appellant from 4:00 until 4:21. Given this testimony, the admission of the test result was within the trial judge’s discretion.
Affirmed.
Stroud, C.J., and Roaf, J., agree. | [
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Andre Layton Roaf, Judge.
Appellant Eugene Fields was convicted by a jury of driving while intoxicated, fourth offense, for which he was sentenced to six years’ imprisonment and fined $5000. On appeal, Fields argues that the trial court erred by permitting the State to: (1) use a prior unsworn statement without complying with the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510, et. seq., by failing to prove prior consent by one party to an intercepted telephone conversation; (2) impeach a defense witness with a prior unsworn statement; (3) argue hypothetical court rulings during closing argument; (4) argue that the burden of proof shifted to the appellant during closing argument; (5) provide the certified judgments to the jury in the punishment phase of the trial. Fields has failed to preserve his second, third, and fourth points for appellate review, and we conclude that his first and fifth points lack merit. Consequently, we affirm.
On November 15, 2000, Fields was arrested and charged with driving while intoxicated, fourth offense, after he was involved in an accident with his vehicle. Fields admitted that he was intoxicated, and the primary issue at the trial was whether Fields was the driver of the vehicle or a passenger.
Charles Taber, who worked for an industrial plant near the scene of the accident, testified as a witness for the State. On the evening of November 15, 2000, Taber saw a truck miss a curve in the road behind the plant and go off the road, hitting a park sign, a fence, and a tin shed. Taber called his supervisor and headed toward the truck. When he arrived at the truck, Taber testified that the truck was still running and that there was a man behind the steering wheel. Taber stated that the man got out of the truck and appeared to be disoriented. Taber testified that he did not see anyone else get out of the vehicle. When Taber asked the driver if he was hurt, the driver stated that he was not and began walking down the road, away from the accident. According to Taber, the driver was staggering and smelled of alcohol. Taber identified Fields as the driver of the vehicle.
Sonny Cameron, a security guard at the plant, testified that he was in the security office when he heard a loud crash. He went looking for the noise and discovered the truck on the other side of the back parking lot. Cameron testified that he talked to Fields and that Fields told him that he was not driving the truck, but that one of his friends that was visiting him had been driving. Cameron tried to convince Fields to go back to his truck, but Fields then took off running and a police officer caught him several blocks away.
Van Burén Police Officer Lance Dixon testified that he was called to investigate an accident possibly involving an intoxicated driver. When he arrived at the scene, Dixon encountered the plant security officer, who told him that the driver of the vehicle had taken off. Dixon drove around the block and found Fields staggering down an alley. According to Dixon, Fields stated that he was not driving and that a friend named “Billy Billy” was driving, but Fields could not answer any questions about who or where Billy Billy was. Dixon testified that he gave Fields several field-sobriety tests, all of which he failed. Dixon then arrested Fields and took him to the detention center, where Fields refused a blood-alcohol test. Dixon testified that while he and another officer were fingerprinting Fields, he stated that he “was just taking Billy home.” Deputy John McAllister, who was present when Fields was fingerprinted, also testified that Fields stated that he was just taking Billy home.
James Williams Cox testified as a witness for the defense. Cox stated that he was a longtime friend of Fields and that Fields called him Billy Cox. Cox testified that he lived in Texas, but that he was visiting in Arkansas on November 15, 2000, and that he went by Fields’s house at approximately 8:00 p.m. and found Fields and another man by the name of Benny in the garage. Cox testified that they had been drinking all afternoon. Cox stated that Fields wanted him to drive Benny home because he had ridden his bike to the house. Cox testified that he drove Fields’s truck, with Benny and Fields as passengers. According to Cox, they had dropped Benny off and were going back to Fields’s house when he ran the truck off of the road because of problems with the steering column, hitting the sign, fence, and shed. When he was not able to back the truck off of the fence, Cox testified that he left to try and find Benny to help. Cox stated that he never found Benny and that when he returned to the scene, the truck was gone and no one was there. Assuming that Fields had the truck towed, Cox testified that he walked back to Fields’s house and then drove back to Texas. Cox testified that he first heard that Fields was arrested a few days later, when Fields called him.
Fields testified that he and his friend, Benny Billy, had been drinking that day, so he asked Cox to drive Benny home. Fields stated that he had been having problems with his steering mechanism in the truck. After the accident, Fields testified that he walked off to try and find a phone to call a wrecker. When he was arrested by Officer Dixon, Fields testified that he continually told him that his friend, Billy, was driving, but that Dixon did not ask any other questions about Billy. When he stated to the officers that he was just taking Billy home, Fields testified that he meant that he was taking Benny Billy home, but not that he was driving.
Fields first argues that the trial court erred by permitting the State to use a prior unsworn statement without complying with the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §2510, et. seq. During the direct examination of Cox, he testified that he had given a statement to the deputy prosecutor in the case over the telephone. Although Cox stated that he was fairly truthful during that conversation, he also testified that he was not “exactly candid” on every issue that was discussed. On cross-examination, the prosecutor questioned Cox, without objection, as to the accuracy of several of the statements made during the phone conversation. After Cox testified that he went to Lee Creek Park to look for Benny immediately after the accident, he was asked whether he remembered telling the prosecutor over the phone that he had left the scene after the accident and walked back to Fields’s house. Cox testified that he did not remember making that statement and denied that the statement was made. The prosecutor, who was apparently reading from a transcript of the phone conversation, questioned Cox as to whether he had been asked on the phone where he went after the accident and as to what his response was at that time. Fields objected, and the following conversation occurred during a sidebar conference:
Defense Counsel: “I’m gonna ask that he quit waving this question and ask what he’s got in front of the jury.”
State: “I’ll play the tape for them.”
Defense Counsel: “No you’re not gonna play the tape, it’s illegally made.”
State: “It’s not illegal.”
Defense Counsel: “Yes it is. Are you gonna testify that one consented and disqualify yourself as an attorney in this case?”
State: “As long as one person can testify ...”
Defense Counsel: “. . . but you’re gonna have to testify you consented to it, you’re not a witness in this case.”
Trial Court: “Let’s not wave it around. I’m gonna permit him to cross-examine.”
The prosecutor proceeded to ask Cox if he remembered his response to the question of where he went after the accident, and Cox testified that he did not specifically remember. The prosecutor then started to read Cox’s response from the transcript, and Fields objected again, stating:
Defense Counsel: “Judge, he is standing there holding what is obviously a transcript reading from it, and I object to that.”'
Trial Court: “On the basis of what?”
Defense Counsel: “On the basis he’s demonstrating to the jury that he has got a transcript of this conversation.”
Trial Court: “Well if he has no problem with it . . .”
Defense Counsel: “I’ve got a problem with that.”
State: “It’s impeachment testimony.”
Defense Counsel: “You’ve got, you’ve got, he has ...”
Trial Court: “. . .what is it about it that you’re objecting to?”
Defense Counsel: “He’s making the jury believe he’s got a transcript of his conversation.”
State: “I do, I do have a copy and it’s on the tape.”
Defense Counsel: “Well it’s not, it’s an illegal tape.”
State: “No it’s not, as long as one party knows it’s recorded.”
Defense Counsel: “Is he gonna get on the stand and testify he consented to it?”
State: “As long as one party know it’s recorded.”
Trial Court: “Listen, lay that on the podium and ask him whatever you want.”
Next, during the re-cross-examination of Cox, the prosecutor questioned him as to whether he knew that he was talking to a deputy prosecutor on the phone and whether he knew that the conversation was being recorded. Cox testified that he did not know the prosecutor was recording the conversation. Fields then moved for a mistrial, arguing that this was the first time that the recording was mentioned in front of the jury and that it was improper to state to the jury that there was a recording made of the phone conversation. The State replied that it was clearly proper impeachment testimony, and the trial court overruled Fields’s motion.
Fields now argues on appeal that the trial court erred in allowing the State to disclose the statements Cox made during the telephone conversation without showing that one party consented to the conversation being recorded, in violation of 18 U.S.C.A. §2511 (West 2000). The State contends that this argument is not preserved for our review because Fields failed to object at the first opportunity or on the same basis that he now argues on appeal. We find that this argument is properly preserved. Although the State initially questioned Cox as to his statements made during the phone conversation without objection, it was not until it was apparent that the State was referring to a transcript of the conversation that Fields objected on the basis that the recording was illegal. Fields continued to object, arguing that the State could not prove consent, and then moved for a mistrial, when the fact that the conversation was recorded was mentioned in front of the jury. Even though Fields did not mention the exact statute that he now argues was violated, his objections were sufficient to timely apprise the trial court of the particular error alleged, which is all that is required to preserve an argument for appeal. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1999).
Nevertheless, we find that there is no merit to Fields’s argument that the recording was prohibited pursuant to 18 U.S.C.A. § 2511. The State argues that Fields does not have standing to challenge the recording of the phone conversation because he is not an aggrieved party. The State also argues that it was not unlawful to merely use the transcript for impeachment, where it was not admitted into evidence. Flowever, it is not necessary to decide these issues, as the recording was not prohibited under the plain language of section . Section provides that it is unlawful to intentionally intercept, disclose, or use the contents of any wire, oral, or electronic communication in violation of this statute. However, section 2511 (2) (c) states that “it shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.” Similarly, section 2511 (2) (d) states that it is not unlawful for a person who is not acting under color of law to intercept the communication where that person is a party to the conversation or has given his consent to the interception.
Cox testified that when the prosecutor, Marc McCune, called him, he was busy so he later returned McCune’s phone call. According to Cox’s testimony, McCune identified himself as a deputy prosecutor and Cox was aware that he was calling the prosecutor’s office when he returned McCune’s call. Cox further testified that he would assume that any conversation a person has with a police officer or other official investigating a case would be recorded. McCune then asked Cox, “You just didn’t know I was recording the phone call, did you?” Cox replied that he did not. Although Fields argues that it was not shown that McCune consented to the recording because he did not testify at the trial, McCune’s consent can be inferred from Cox’s testimony. Also, it can be inferred from this testimony that McCune was a party to the communication. Because it is not unlawful to intercept an oral communication where such person is either a party to the conversation or consents to the interception, Fields’s argument on this point has no merit.
For his second point on appeal, Fields argues that the trial court erred in permitting the State to impeach a defense witness with a prior unsworn statement. Fields asserts that the State was allowed to improperly impeach Cox by reference to the prior telephone conversation on at least six occasions. However, as the State argues, Fields’s argument is not preserved for our review because he at no time objected on this basis during the trial. While Fields did object to the use of the transcript based upon the lack of consent to the phone conversation being recorded, he did not argue that the State’s impeachment was improper under Ark. R. Evid. 613, as he now argues on appeal. In order to preserve an evidentiary challenge for appellate review, a party must object at the first opportunity. Brooks v. State, 76 Ark. App. 164, 61 S.W.3d 916 (2001). In addition, a party may not change the basis for an objection on appeal, but is bound by the nature and scope of the objection made at trial. Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001). Because Fields did not raise this argument to the trial court, we need not address the merits of his claim.
Fields argues in his third point on appeal that the trial court erred by permitting the State to argue hypothetical court rulings during closing argument. During his closing argument, Fields argued that the State failed to call two witnesses who could have potentially resolved the dispute about whether he was driving the truck that night. The State then responded in its rebuttal argument that Fields would have objected on hearsay grounds if the State had called one of those witnesses. Fields objected, stating that that was not proper argument in this case. The trial court overruled the objection, and the State then repeated that it would be hearsay. Fields objected again and stated that “we’re gonna have to make a better record on that.” The trial court then admonished the jury that the statements of the attorneys were not evidence and that they should base their decision on what they recall the evidence to be.
Fields contends that the argument by the State was improper because it was beyond the record and prejudicial. He asserts that the trial court’s rulings denied him the opportunity to emphasize that the burden of proof was on the State. The State contends that this argument is not preserved because Fields failed to state these grounds for his objection to the trial court. In order to preserve for appeal an argument as to comments made during closing argument, the objection must be specific enough that the trial court is apprised of the particular error alleged, and the party may not change the grounds for his objection on appeal. Cobbs v. State, 292 Ark. 188, 728 S.W.2d 957 (1987); Samples v. State, 50 Ark. App. 163, 902 S.W.2d 257 (1995). Because Fields failed to specify the grounds for his objection to the trial court, his argument is not preserved for appellate review.
For his fourth point on appeal, Fields contends that the trial court erred by permitting the State to argue that the burden of proof shifted to the appellant during closing argument. During the State’s rebuttal argument, the following statements were made by the prosecutor: “You heard the question of him. He talked to Ron Fields (Fields’s prior defense counsel), Charles Taber did, he talked to myself, and he got on the stand today and testified. There wasn’t any impeachment, there wasn’t any, well, don’t you remember saying this or now you’re saying that.” Fields objected, stating that the prosecutor was arguing that Ron Fields should have testified, when the prosecutor was aware that Mr. Fields now works for the federal government and could not be called as a witness. The trial court overruled Fields’s objection, and the State continued its closing argument and stated that there were no prior inconsistent statements by Taber and that it was “pretty clear what happened here.” Fields now contends that this argument shifted the burden of proof to him and was a comment on his failure to produce evidence. However, Fields did not make this argument below, and thus, this argument also is not preserved for our review. See Samples v. State, supra (where the defendant argued that the State’s closing argument improperly shifted the burden of proof to the defendant, but the court held that it was not preserved for appeal because the defendant did not object on that basis at trial).
Fields argues for his fifth point on appeal that the trial court erred in permitting the State to provide the certified judgments to the jury in the punishment phase of the trial. During the sentencing phase, the State introduced evidence of three prior DWI convictions by Fields. The trial court then informed the jury that there were three different convictions and admitted the certified judgments into evidence. The trial court asked the attorneys if anyone had a problem with the convictions being provided to the jury. Although Fields initially stated that he did not have a problem with that, he then objected after a discussion with the trial court. Fields argued that the judgments should not go to the jury room, as the trial court had “read those convictions and anointed those convictions from the bench.”
As the State asserts, Fields does not cite any authority for his argument that the jury should not have received certified copies of his prior DWI convictions. An argument that is unsupported by convincing argument or citation to relevant authority need not be addressed on appeal. Sanders v. State, 76 Ark. App. 104, 61 S.W.3d 871 (2001). Furthermore, the fact of prior DWI convictions is an element of the crime of DWI, fourth offense, and is to be determined by the jury. Hodges v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989). Although the trial court must determine the admissibility of evidence of the prior convictions, it is up to the jury to determine that the evidence establishes that element of the offense. Id. Thus, it was proper for the trial court to have provided copies of the prior convictions to the jury for their examination. Fields also argues that there was incorrect information contained in the judgments of the prior convictions; however, he did not object on this basis below, and thus, his argument is not preserved for appeal. Hutcherson v. State, supra. We also note that Fields attempts to argue in his reply brief that the trial court erred in informing the jury that he had three prior convictions and in reading from those convictions, because this had the effect of a binding instruction to the jury. This court does not address arguments raised for the first time in an appellant’s reply brief. Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611 (1999). As there is no merit to any of Fields’s arguments on appeal, we affirm.
Affirmed.
Stroud, C.J., and Griffen, J., agree. | [
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Terry Crabtree, Judge.
Appellant Tina Engle was injured on August 7,2003, while she was attending an offsite work event. Her claim for benefits was denied by the administrative law judge (ALJ), who determined that appellant had failed to prove that she sustained compensable injuries as defined by Ark. Code Ann. § 11 — 9—102(4)(B)(iii) (Supp.2005) because she was not performing employment services at the time of her accident. The Workers’ Compensation Commission affirmed and adopted the decision of the ALJ by an opinion filed November 30,2005. Appellant challenges the decision of the Commission, and she argues that it was error for the Commission to hold that she was not performing employment services at the time of her injury. Further, she contends that the Commission’s decision is not supported by substantial evidence. We reverse and remand the decision of the Commission.
At the time of her injury appellant was employed with appellee as the executive coordinator for Charlie Anderson, the vice-president of the account service department. Appellee Thompson Murray encouraged each department to have an offsite event annually or biannually to promote team bonding and to set goals for the department. As the executive coordinator, it was appellant’s responsibility to plan the offsite event for the account service department. Appellant met with Mr. Anderson to determine where the event would be held, what presentations would be delivered, and in what activities they would engage. During this meeting they reviewed a document prepared by Mr. Anderson entitled “Needed for Account Management Offsite,” which outlined the schedule, responsibilities, and activities planned for the two-day event.
The group was scheduled to meet at the office and the company-provided vehicles were to be loaded by 8:30 a.m. At 8:30 a.m., the group would watch a video of company CEO Andy Murray before departing from the office at 9:00 a.m. for Gaston’s Resort and Bull Shoals Lake. The schedule prepared by Mr. Anderson reflects that from 12:30 p.m. until 6:30 p.m. the group was going to be on a pontoon boat and WaveRunners at the lake. More specifically, the schedule directs that appellant was responsible for directing the group to the dock, checking in at the dock, nominating a driver for the boat, and obtaining a map of the lake with directions to a beach and “cliff/rocks to jump off.” Appellant was expected to keep the event running smoothly and handle unanticipated issues that might arise. Participation in the retreat was mandatory and participants were paid while attending the event.
On the morning of August 7, 2003, the group met, loaded the rented vehicles, and watched the video of CEO Andy Murray. In the video, Mr. Murray congratulated and thanked the team for their work over the past year. Mr. Murray encouraged the group to return with a refined sense of what it means to be a leader, to use the offsite event to “recharge,” and “most importantly have fun.” The group departed as scheduled and after arriving at Gaston’s Resort they went to Bull Shoals Lake. Appellant obtained maps of the lake as instructed by her supervisor so that they could find rocks or a cliff to jump off into the lake. After locating a bluff from which others were jumping, Mr. Anderson and another member of the team, Molly Anders, jumped from the bluff. While attempting a jump, appellant fell from the edge striking the rocks protruding from the cliff face below.
In appeals involving claims for workers’ compensation, we review the evidence in a light most favorable to the Commission’s decision and affirm the decision if it is supported by substantial evidence. Hapney v. Rheem Manufacturing Co., 341 Ark. 548, 26 S.W.3d 771 (2000). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Searcy Industrial Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). The court will not reverse the Commission’s decision unless it is convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id. When 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 us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Clardy v. Medi-Homes LTC Serv. LLC, 75 Ark. App. 156, 55 S.W.3d 791 (2001).
In order for an accidental injury to be compensable, it must arise “out of and in the course of employment.” Ark. Code Ann. § ll-9-102(4)(A)(i) (Supp. 2005). A compensable injury does not include injuries “inflicted upon the employee at a time when employment services were not being performed.” Ark. Code Ann. § 11-9-102(4)(B)(iii). By adoption of the ALJ’s opinion, the Commission reasoned that “employment services” are the activities and services “actually inherently necessary for the performance of the job for which the employee was hired. These activities must also either directly or indirectly advance the interest of the employer.” Further, the Commission found that because appellant was not “expressly directed by her employer to attempt to jump from the cliff on Bull Shoals Lake” it is “obvious that this activity was neither directly nor indirectly necessary for her to perform her job duties.” The Commission also held that the activity did not benefit the employer or advance its interests. We disagree.
An employee is performing “employment services” when he or she is “doing something that is generally required by his or her employer.” Pifer v. Single Source Transportation, 347 Ark. 851, 69 S.W.3d 1 (2002). 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. The test is whether the injury occurred “within the time and space boundaries of employment, when the employee was carrying out the employer’s purpose or advancing the employer’s interest either directly or indirectly.” White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). The strict construction requirement of Act 796 does not require that we review workers’ compensation claims and appeals as simply a matter of determining whether the worker was performing a job task when the accident occurred. Wallace v. West Fraser South, Inc., 365 Ark. 68, 225 S.W.3d 361 (2006) (citing Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001)). 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. Matlock, supra.
Appellant was indeed acting within the course of her employment and providing employment services at the time of her accident. The purpose of the offsite meeting was for employees to bond, refresh, set new goals, and have fun. As long as the participants were advancing the purpose of the meeting, they were furthering the interest of their employer. Moreover, because appellant was required to plan and facilitate the events, her job duties required an even more active participatory role. The company hosted the event, considered it mandatory, and paid employees to attend. Appellant’s supervisor compiled a schedule and list of responsibilities for her that included renting a boat, WaveRunners, and obtaining a map that included the locations of cliffs and rocks to jump off. It defies reason to assert that appellant was required by her employer to find a place from which to jump, but was not expected to participate in jumping. The employer designated a block of time during which employees were expected to engage in activities at the lake. The record before us supports the assertion that appellant was engaging in conduct permitted and anticipated by the employer; therefore, it was erroneous for the Commission to conclude that appellant was not engaged in employment services because the employer did not expressly direct appellant to jump from the cliff. Because we find there was not a substantial basis for the denial of relief, we reverse the Commission’s decision and remand for a determination of benefits.
Reversed and remanded.
Robbins, J., agrees.
Griffen, J., concurs. | [
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John B. Robbins, Judge.
This is the second appeal of this lawsuit filed by appellant, B. J. McAdams, against a veterinary clinic and its employees regarding harm appellant alleged came to his sixteen-year-old dog, Mr. T, during a clinic visit on February 14, 2000. Appellant contends that the trial court’s grant of summary judgment to the defendants/appellees constitutes reversible error. Appellant additionally contends that the trial court erred in refusing to recuse on this case. We disagree with his assertions and affirm.
This cause of action arose from the following chain of events. On February 14, 2000, appellant took his dog, not to his “regular” veterinarian, Dr. Richard Allen, but to the Vets & Pets clinic, asking for a routine steroid shot. The clinic required that appellant leave his dog there for a few hours. Appellant alleged that when he brought his dog into the clinic, the dog could walk, but when he retrieved the dog hours later, it could not walk. Appellant alleged that someone at the clinic physically restrained his dog in such a way as to break or fracture the dog’s spine. Appellant took the dog to specialist veterinarian Dr. Larry Nafe on March 7, 2000, and treated with Dr. Nafe intermittently for the dog’s paralysis and other maladies until the dog died in December 2000 of organ failure.
Appellant first filed his “Complaint for Malpractice and Negligence” in May 2001, which was dismissed upon a defense motion pursuant to Arkansas Rule of Civil Procedure 12(b)(6). Appellant appealed the dismissal of his complaint, and we reversed and remanded the case to the trial court. See McAdams v. Dr. Faulk, CA01-1350 (April 24, 2002). Treating all the allegations in the complaint as true, as is required in review of a 12(b)(6) motion, we determined that appellant had sufficiently stated a cause of action for malpractice and negligence on his own behalf, though we affirmed the dismissal of the action regarding the dog itself as a named party. See id.
After remand, appellant non-suited his case and refiled it alleging malpractice, res ipsa loquitur, and the tort of outrage, all based upon the same allegations of fact. In short, appellant asserted that his dog never walked again after the February 14, 2000 visit, which paralysis caused premature organ failure and death. When asked to name his expert witnesses via interrogatories, appellant responded with three: Dr. Richard Allen (the dog’s regular doctor), Dr. Kendall Faulk (the defendant doctor who treated the dog on February 14), Dr. Larry Nafe (the dog’s treating doctor for the remainder of the dog’s life).
One deposition was taken, that of Dr. Nafe, and the defense moved for summary judgment based upon his sworn testimony. Dr. Nafe had no expert opinion regarding the medical care provided by Dr. Faulk or the clinic, or whether that standard was breached in the clinic visit of February 14, because he had not seen those clinic notes. However, Dr. Nafe did opine regarding the cause of the dog’s inability to walk and ultimate death. Dr. Nafe stated that when he saw the dog in early March, blood tests confirmed that the dog’s spine was infected with a staph bacteria, that the infection predated the February 14 visit, that the infection led to a breakdown in the vertebrae causing paralysis, and that despite eventually obtaining control of the infection by use of antibiotics, the dog ultimately suffered heart failure and secondary kidney failure that were the cause of death. Dr. Nafe stated that there was no known scientific connection between heart and kidney failure and a staph infection of the spine.
The defense moved for summary judgment stating that appellant had the burden of proving the standard of care, a breach of the standard of care, and proximate cause of injury or death due to the breach of the standard. The motion alleged that appellant had failed on all those requirements, pursuant to the expert witness, Dr. Nafe. The defense also moved for summary judgment on the res ipsa loquitur claim and the outrage claim, both depending upon the validity of the medical negligence claim.
At the hearing, appellant first asked the trial judge to recuse and to disqualify opposing counsel because he believed that there was an improper personal connection between the attorneys and the trial judge. Both requests were denied. Thereupon, the trial judge heard argument on the motion for summary judgment. Defense counsel restated their position that to support a malpractice claim, appellant bore the burden to demonstrate the standard of care, a breach of that standard, and that the breach caused injury. Defense counsel also stated that appellant had no cause of action for res ipsa loquitur because there was a reasonable explanation for why the dog could not walk and eventually died that was not connected to any alleged assault or harm on February 14, 2000. Lastly, defense counsel argued that the outrage claim failed because it was dependent upon the negligence claims.
During the hearing, appellant was allowed to explain his side of the story, arguing essentially that because he had prevailed on appeal as to the first dismissal, then the defense was not entitled to a summary judgment. Appellant restated that he believed his dog barked while kept in the clinic on February 14 and that someone there physically restrained or choked the dog to cause injury to his spine, causing him never to walk again. The trial court granted the motion for summary judgment, dismissing the complaint with prejudice, by an order filed on August 16, 2005. Appellant moved the trial court to reconsider, in which appellant asserted that Dr. Nafe was not his expert witness. Appellant added in his argument that the defense was barred by res judicata from trying to have his complaint dismissed. The trial court denied the motion to reconsider, and a timely notice of appeal followed that order.
We now consider the order granting summary judgment to the defendants. The standard of review on a grant of a summary judgment is markedly different than that for grant of a 12(b)(6) motion to dismiss. 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 movant is entitled to judgment as a matter of law. Rice v. Tanner, 363 Ark. 79, 210 S.W.3d 860 (2005). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof to 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 its motion leave a material question of fact unanswered. Id. We review the evidence in a light most favorable to the non-movant, resolving any doubts and inferences against the movant. Id. We review the pleadings, affidavits, and other documents filed by the parties. Id.
In considering the medical malpractice claim, we are mindful that pursuant to Ark. Code Ann. § 16-114-209 (Repl. 2003), a plaintiff must provide, within thirty days of the filing of the complaint, an affidavit containing an expert opinion as to the standard of care in the particular specialty, the breach of that standard, and resulting injury. Failure to do so subjects the plaintiff to dismissal. However, this code section was amended in the 2003 legislative session to create this requirement; it does not apply to the present appeal because the alleged cause of action here occurred in 2000.
The law applicable to the present appeal requires that the plaintiff provide these three components of proof, and appellees argued in their motion challenging the existence of any of the three to support the medical negligence claim. Appellees did not present affirmative proof of the applicable standard of care required of a veterinarian in the February 14, 2000 visit or affirmative proof that the veterinarian complied with the standard of care. Indeed, Dr. Nafe refused to opine on Dr. Faulk’s professional care without having the medical records relative to that day. Without proof supporting the motion for summary judgment on the applicable standard or breach thereof, appellant was under no duty to rebut those two aspects of medical negligence. Compare Cash v. Lim, 322 Ark. 359, 908 S.W.2d 655 (1995) (discussing the principle that the burden does not shift in the absence of the movant offering proof on a controverted issue). However, appellees did present affirmative proof through Dr. Nafe that the cause of the dog’s inability to walk was a festering spinal infection that pre-dated the February 14 visit; that the defects in the dog’s spine made visible on x-ray were due to the effects of infection on the spine and the effects of old age; and that the dog’s ultimate death resulted from organ failure that Dr. Nafe said was unrelated to the infection. This constituted proof that challenged the proximate cause of appellant’s allegation of harm — that his dog was rendered unable to walk and ultimately died from a physical trauma inflicted at Dr. Faulk’s office that day.
The dissenting judge misconstrues appellees’ contentions when she states that appellees never challenged the third requirement of proof— that being proximate cause of alleged harm. No doubt, appellees asserted that Dr. Nafe did not provide proof that the dog affirmatively suffered harm at the hands of the defendants that would not have otherwise occurred. Dr. Nafe’s expert opinion about the cause of the dog’s paralysis and ultimate death was in direct conflict with the allegation ofphysical injury inflicted on the dog at Vets & Pets. Therefore, Dr. Nafe provided proof that harm did not come to the dog as alleged by appellant’s complaint.
In addition, we cannot agree with the dissenting judge’s belief that Dr. Nafe’s testimony was equivocal on the issue of what caused the dog’s inability to walk and eventual death. The deposition was more than sixty pages long. Read as a whole, Dr. Nafe’s opinion is definitive and within reasonable medical certainty. Dr. Nafe was not presented with the February 14 medical records. Instead, Dr. Nafe was given a history by Mr. McAdams about his suspicions of personnel man-handling his dog to keep the dog quiet. Mr. McAdams did not allege that Vets & Pets was responsible for introducing an infection into the dog.
Dr. Nafe examined the dog, x-rayed the dog’s spine which showed marked changes in the cervical region, ran blood tests on him, and confirmed the presence of staph bacteria in large quantities in the blood stream. The blood test confirmed with certainty the statistical probability that staph was growing. Dr. Nafe did not want to do a myelogram, because this test required direct needle contact with the spine, which might spread the infection. Dr. Nafe opined with certainty that staph infection was the cause of the discospondylitis, and opined with certainty that the discospondyli-tis was the cause of the paralysis. When asked if there was any other possible cause of the paralysis, Dr. Nafe responded, “No, I felt that that was the cause.” When asked if he had any suspicions that something happened to the dog three weeks earlier at Vets & Pets that would render the dog unable to walk, Dr. Nafe said that he could not know but that “on the radiographs, there was no evidence of fracture or dislocation or anything like that.” Dr. Nafe stated that while there was a spine problem, it was a degenerative and infectious trauma predating the February 14 visit. In concluding the deposition, the following pertinent questions and answers were given:
Q. It’s my understanding that the initial cause of the dog’s problems walking, in your opinion, was attributable to the discospondylitis that you observed from the radio-graphs; is that correct?
A. That’s correct.
Q. And then it’s your opinion that the dog ultimately died from kidney failure secondary to the cardiomyopathy; is that correct?
A. That’s correct.
Q. And it’s your opinion that there’s really no relation between those two conditions in this dog?
A. Well, you know, I mean, again, I don’t know of any studies that have suggested any kind of relationship.
Q. So the discospondylitis that you saw on the radiographs preceded February 14th, 2000 —
A. Right.
Q. — in your opinion?
A. Yes.
Q. So the infection had been building prior to that date?
A. Right, which is typical.
He had a severe spinal cord injury, and so that spinal cord was damaged, and it was damaged severely. And that’s the problem with him is his was much worse than many of them.
Q. But the damage was attributable to the discospondylitis?
A. Right.
Q. Not to some sort of external trauma?
A. Not that I can tell. Right. He had underlying disease present in his spine.
This sworn testimony rebuts appellant’s allegation that Vets & Pets fractured or broke his dog’s neck, leading to its paralysis and death.
With Dr. Nafe’s expert opinion regarding lack of proximate cause, appellant was duty bound to meet proof with proof, which appellant did not produce. Conclusory allegations would no longer suffice. Therefore, no material question of fact existed on causation, rendering summary judgment appropriate. The trial court did not err in entering summary judgment and dismissing that count.
Likewise, appellees were entitled to summary judgment on the claim of res ipsa loquitur. This doctrine may apply in medical malpractice cases if the essential elements are present. See Schmidt v. Gibbs, 305 Ark. 383, 807 S.W.2d 928 (1991). The general requirements are a duty to the plaintiff to use due care, an accident caused by something under the defendant’s control, the existence of an accident that in the ordinary course of things would not otherwise occur if the defendant used proper care, and an absence of evidence to the contrary. See id. In this instance, the missing element of plaintiffs proof here is the “absence of evidence to the contrary.” Appellant’s allegation that his dog suffered a traumatic injury to the spine causing paralysis and death was refuted by Dr. Nafe’s explanation to the contrary. Appellant was required to meet proof with proof to create a question of fact on this point, and he failed to do so. Summary judgment was appropriate for the res ipsa loquitur claim.
As to the tort of outrage, it was wholly dependent upon there being a valid negligence claim. Moreover, the tort of outrage is an extremely narrow tort, rarely recognized in Arkansas caselaw. It requires extreme and outrageous behavior not to be tolerated in a civilized society; it encompasses acts beyond all bounds of decency. See Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000). Given that the negligence claims were unsupported by any rebutting proof on the motion for summary judgment, we affirm the entry of summary judgment on the tort of outrage as well.
Appellant also raises on appeal an allegation that the trial court was biased against him and should have recused. He asks that we consider this impropriety in connection with the grant of summary judgment. We are not persuaded. The vast majority of instances appellant cites as evidence of bias against him by the trial judge are events outside the record on appeal. We do not consider evidence that is not included in the record on appeal. See Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001); Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000). To the extent that appellant claims that the trial judge should have recused, we review that decision for an abuse of discretion. See Searcy v. Davenport, 352 Ark. 307, 100 S.W.3d711 (2003). The decision whether to recuse is a matter left to the conscience of the trial court. Id. We discern no abuse of discretion in this instance. The fact that a judge has ruled against a party in prior litigation is not sufficient to establish bias, nor is the filing of a complaint by the movant with the Judicial Disability Commission. Id. Appellant has failed to present a record on appeal demonstrating that the trial judge was infected with such bias that he should have recused. We affirm this point.
Affirmed.
Pittman, C.J., Bird, and Glover, JJ., agree.
Crabtree, J, concurs.
Baker, J., dissents.
The named defendants were Melissa Curnayn, Tracy Warner, Dr. Lisa Faulk, Dr.W Kendall Faulk, Paul Winchester, Shondra Harris, and Vets & Pets. All the defendants were either owners, employees, nurses, or otherwise agents of the clinic.
Arkansas Code Annotated section 16-114-201(2) (Repl. 2006) includes veterinarians as medical care providers within the meaning of the Medical Malpractice Act. | [
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Andree Layton Roaf, Judge.
Clayton Kidd Logging Company (Clayton Kidd), appeals from an order of the Workers’ Compensation Commission. The Commission found that appeEee, Kevin McGee, is entitled to receive additional compensation for a compensable injury, in the form of weekly benefits pursuant to Ark. Code Ann. § 11-9-505 (Repl. 1996) because Clayton Kidd refused to aEow him to return to work. On appeal, Clayton Kidd argues that the Commission erred in awarding the additional compensation because McGee 1) quit or was terminated after returning to work, and 2) was not already receiving disability benefits as required for entitlement to the additional benefits. We do not agree with Clayton Kidd’s arguments and affirm.
On April 8, 1999, McGee sustained an injury to his lower back while employed as a log-truck driver with Clayton Kidd. McGee reported the injury when he went to work the next day, took a few days off, and went back to work driving the log trucks. According to McGee, on AprE 15, 1999, Clayton Kidd advised him that “they didn’t need him any longer.” However, Clayton Kidd claimed that McGee had been terminated for aflowing his wife to ride with him in the log truck after he was advised several times not to do so.
McGee was diagnosed with a lumbar sprain. Clayton Kidd controverted the claim, and the ALJ found that McGee had suffered a compensable injury arising out of and in the course of his employment. McGee subsequently sought additional benefits pursuant to Ark. Code Ann. § 11-9-505(a). However, the ALJ found that McGee was not entitled to such benefits. The ALJ relied on Davis v. Dillmeier Enter., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997), in which the supreme court determined that the “in addition to other benefits” provision in § 11-9-505(a) “does not apply to termination of employment or to a claimant not receiving weekly benefits for a compensable injury.” The Commission found Davis, supra, which was a discrimination case brought pursuant to the Arkansas CivE Rights Act, not applicable and reversed and remanded for a determination of whether McGee was entitled to the additional benefits in fine with the four-part test oudined by this court in Toney v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996).
On remand, the ALJ found that the requirements of Toney had not been met and again denied McGee’s request for additional benefits. The Commission once again reversed, noting that the ALJ had concluded that McGee’s termination was without reasonable cause. The Commission found that McGee had established that he returned to work, was capable of performing his work, was doing his pre-injury job at the time he was unreasonably fired, and there was work available within his restrictions at the time of his termination. The Commission held that McGee met all the elements of the Toney test to establish entitlement to § 11-9-505(a) benefits in the amount of $11,513 for his loss in average weekly wages during the one-year period in question. Clayton Kidd appeals from this order.
On appeal, Clayton Kidd argues that the Commission erred in finding that McGee is entitled to benefits pursuant to Ark. Code Ann. § ll-9-505(a)(l) because the statute provides for additional benefits only when an employer refuses to return an employee to work and when the employee is already receiving compensation benefits for disability. It contends that 1) McGee did not receive disábility benefits during the one-year period in question, and 2) he was terminated or quit. Clayton Kidd further asserts that both Davis, supra, and Toney, supra, support the denial of additional benefits to McGee.
When reviewing a decision of the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission and affirms that decision if it is supported by substantial evidence. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Substantial evidence is such evidence that a reasonable mind might accept as adequate to support a conclusion one way or another. Id. The Commission’s decision will not be reversed unless it is clear that fair-minded persons, presented with the same facts, could not have reached the same conclusion. Id.
Arkansas Code Annotated section 11-9-505 (a)(1) (Repl. 1996) provides that
Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee’s physical and mental limitations, upon order of the commission, and in addition to other benefits, shall be liable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of refusal, for a period not exceeding one (1) year.
Act 796 of 1993 mandates that the Commission and the courts construe the provisions of the Act strictly. Wheeler, supra. Strict construction is narrow construction which requires that nothing be taken as intended that is not clearly expressed and that the plain meaning of the language be employed. Id.
We agree that Clayton Kidd’s reliance on Davis v. Dillmeier is misplaced. In Davis, the supreme court construed the language in Ark. Code Ann. § ll-9-505(a)(l) as “providing benefits in addition to those workers’ compensation benefits already being received by the claimant.” The court further stated that such construction is evident because additional benefits are designed to provide the employee with a total amount equal to his average salary, thereby making the employee whole. However, the supreme court found that the statutory remedy for refusal to return an injured employee to work was not available to Davis because she had returned to work while she was receiving medical treatment and was terminated only after she had entered into a joint petition that fully concluded her claim for workers’ compensation. Accordingly, the court reversed the circuit court’s dismissal of Davis’s complaint against her employer for discrimination pursuant to the Arkansas Civil Rights Act. We agree with the Commission that Davis is not applicable to the case at hand.
However, this court has construed Ark. Code Ann. § 11-9-505 (a) in the context of a workers’ compensation case. In Toney v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996), we held that before Ark. Code Ann. § 11-9-505(a) is applicable, several requirements must be met. The employee must prove by a preponderance of the evidence 1) that he has sustained a compensable injury, 2) that suitable employment which is within his physical and mental limitations is available with the employer, 3) that the employer refused to return him to work, and 4) that the employer’s refusal to return him to work is without reasonable cause. This court further stated that “[i]n reviewing the pertinent sections of the Act, we find that the legislative intent that the injured worker be allowed to reenter the work force permeates the language of sections of the Act.” Id. at 230, 934 S.W.2d at 239. In addition, this court concluded that the period of refusal lasts not only until a position is filled, but continues as long as the employer is doing business not to exceed the one-year limitation for payment of additional benefits. Id.
Here, McGee was found to have a compensable injury. There was also suitable employment within McGee’s physical and mental limitations. Although he testified that he was in pain, McGee stated that he could continue doing his job. A few days after his injury, McGee returned to Clayton Kidd and was terminated. The Commission found that McGee’s testimony with regard to the circumstances of his termination was credible, that Clayton Kidd had in effect refused to return him to work by terminating him, that the refusal was without reasonable cause, and that McGee was not required to prove that his position remained unfilled for any particular period of time after the refusal. We cannot say that the evidence does not support the Commission’s findings, or that the Commission erred in its construction of the statute in question and its application of the relevant case law.
Affirmed.
Vaught and Bird, JJ., agree. | [
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Larry D. Vaught, Judge.
Appellant was convicted in a bench trial of possession of a controlled substance and possession of drug paraphernalia. He was sentenced to sixty months’ imprisonment, with thirty-six months suspended. Appellant’s sole contention on appeal is that the evidence of his constructive possession of the contraband was insufficient to sustain the convictions, and accordingly the trial court should have dismissed the charges against him. We agree.
On June 19, 2000, a vehicle driven by appellant entered into an area under surveillance by Faulkner County law enforcement. The area included a Quonset hut filled with a substantial amount of stolen property. The officers were instructed to stop any vehicle approaching or exiting the area and to identify any persons “that might have cause to be on the property.” Appellant arrived about 1:30 a.m. driving a vehicle belonging to his passenger, Darlene Abies. Deputy Brocker testified that he stopped the vehicle and checked appellant’s license. He noted that appellant had various charges (not warrants) including a weapons charge, and asked him and the passenger to exit the vehicle. A search of Ables’s person revealed a clear plastic bag which later tested positive for methamphetamine residue. However, the search of appellant produced no evidence of contraband.
Subsequent to the searches of both individuals, a canine search of the vehicle was performed and the dog alerted under the driver’s seat. A search under the seat revealed a pair of work gloves and inside one of the gloves was a ball of tinfoil containing methamphetamine. After the arrests, while being transported in the police car, Abies accused the officer of planting the drugs and the appellant joined her accusation. The appellant was tried before the court and was convicted of possession of a controlled substance and possession of drug paraphernalia (for the tinfoil).
Walker challenges the trial court’s denial of his motion to dismiss. A motion to dismiss, identical to a motion for a directed verdict in a jury trial, is a challenge to the sufficiency of the evidence. Dye v. State, 70 Ark. App. 329, 17 S.W.3d 505 (2000). On appeal of a denial of a motion for dismissal, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Peeler v. State, 326 Ark. 423, 932 S.W.2d 432 (1999). Circumstantial evidence is substantial if it is of sufficient force to compel a conclusion beyond mere suspicion or conjecture. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). Only the evidence supporting the guilty verdict need be considered, and that evidence is viewed in the light most favorable to the State. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999).
The cases are legion concerning constructive possession and joint possession of controlled substances. It is well settled that it is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000) (citing Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994)). Constructive possession requires the State to prove beyond a reasonable doubt that 1) the defendant exercised care, control, and management over the contraband, and 2) the accused knew the matter possessed was contraband. Boston v. State, 69 Ark. App. 155, 12 S.W.3d 245 (2000). Although constructive possession can be implied when the drugs are in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Dodson, supra. There must be some other factors linking the accused to the drugs:
Other factors to be considered in cases involving automobiles occupied by more than one person are: 1) whether the contraband is in plain view; 2) whether the contraband is found with the accused’s personal effects; 3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; 4) whether the accused is the owner of the automobile, or exercises dominion or control over it; and,r 5) whether the accused acted suspiciously before or during the arrest.
Mings, supra at 207, 884 S.W.2d at 600.
Although factors three and four were present in this case, neither of these factors established that appellant had knowledge of the presence of the contraband without resorting to speculation or conjecture. Each of the remaining Mings factors (plain view, whether the contraband is found in the accused’s personal effects, and suspicious acts of accused) indicate that the accused had direct knowledge of the presence of the contraband.
While the Mings factors offer guidance for our court in analyzing constructive possession cases, the mere presence of some of these enumerated factors does not relieve our obligation to determine whether a nexus between the accused and the contraband has been established. The link between the accused and the drugs must be sufficient to raise a reasonable inference of knowledge of the contraband. In Boston, supra, we reversed a conviction where the contraband was found in a suitcase in the trunk of appellant’s car where it could not be shown that he had knowledge of the contents of the suitcase. Similarly, in Miller v. State, 68 Ark. App. 332, 6 S.W.3d 812 (1999), we affirmed a conviction where (although none of the five Mings factors were apparent) the strong odor of burning marijuana was sufficient to establish that the appellant had knowledge of the drug, and concluded that it is the knowledge of the existence of the contraband that provides substantial evidence of constructive possession. Id.
Knowledge of the presence of the contraband is a well-established element of constructive possession which has been developed better in premises cases than automobile cases. In Franklin v. State, 60 Ark. App. 198, 962 S.W.2d 370 (1998), we reversed a conviction based on constructive possession where joint occupancy of a house was at issue. After analyzing the evidence the State offered, which allegedly linked appellant to the drugs, we found it to “fall short of demonstrating the degree of connection to the contraband or knowledge of its presence.” Id. at 203, 962 S.W.2d at 375 (emphasis added).
In the case at bar, appellant was in Darlene Ables’s car, and methamphetamine was found on her person and not on appellant. Additionally, the officer testified that appellant was cooperative and did not act suspiciously. The State offered only two links between appellant and the contraband: 1) that the glove was found on appellant’s side of the vehicle; and 2) that appellant was the driver of the automobile. Neither of these raise a reasonable inference that appellant had knowledge of the presence of the contraband. Therefore, there was no substantial evidence to sup port a finding of constructive possession, and we reverse appellant’s convictions and dismiss the charges against him.
Reversed and dismissed.
Hart, Bird, Griffen, Neal, and Baker, JJ., agree.
Stroud, C.J., Pittman, and Jennings, JJ., dissent. | [
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John E. Jennings, Judge.
The appellant, Debbie Daniels, appeals from the Commission’s order denying her claim for benefits based on a finding that the car accident in which she was injured occurred at a time when she was not performing employment services. Her argument on appeal is that the Commission’s decision is not supported by substantial evidence. We affirm.
The appellant was employed by appellee in the Division of Children and Family Services as a Social Services Aide II. Her duties consisted of transporting foster-care clients and completing paperwork related to the travel, as well as putting narrative reports into a computer. An estimated eighty percent of her job involved travel. When transporting clients, she used her own vehicle and was paid trwenty-eight cents per mile. Appellant had access to a cellular phone provided by appellee when she traveled outside of Pulaski County. Although it was not required by appellee, appellant had also purchased her own pager so that she could be reached while she was out of the office. Appellant testified that she was expected to be available to receive calls to transport clients at any time of the day. She also said that there were days that she did not get a regular lunch break. Appellant testified that, if paged during lunch, she would answer the page to find out what she was needed to do. She said that mileage was not claimed for travel on lunch breaks, unless a call was received during lunch for her to transport a client. Then, mileage was charged from the place of the lunch break to the destination.
Appellant worked in the office on the morning of September 10, 1999. She signed out for lunch at about noon. Before going home, she stopped to visit a client, but the client was not at home. Appellant then proceeded to her house where she ate a quick lunch. On her way back to the office, she was injured in a car accident. Appellant testified that she had not received a page or a call during lunch and that she was just returning to the office after her lunch hour. She claimed no mileage for this excursion.
The Commission determined that appellant’s claim was not compensable because she was not performing employment services at the time of the accident. Appellant contends that there is no substantial evidence to support the Commission’s decision.
In reviewing decisions from the Workers’ Compensation Commission, the appellate court views 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. Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001). Substantial evidence exists if reasonable minds could reach the same conclusion. Lee v. Dr. Pepper Bottling Co., 74 Ark. App. 43, 47 S.W.3d 263 (2001). When 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 us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Clardy v. Medi-Homes LTC Serv. LLC, 75 Ark. App. 156, 55 S.W.3d 791 (2001).
Arkansas Code Annotated section ll-9-102(4)(A) (Supp. 2001) defines “compensable injury” as “[a]n accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment.” Section 11 — 9-102(4)(B)(iii) provides that the term “compensable injury” does not include an injury that was inflicted upon the employee at a time when employment services were not being performed. The statute does not define the phrase “in the course of employment” or the term “employment services.” The supreme court has held, however, that we are to use the same test to determine whether an employee was performing “employment services” as is used when determining whether an employee was acting within “the course of employment.” Collins v. Excel Specialty Prods., 347 Ark. 811, 69 S.W.3d 14 (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 also Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002).
An employee is generally said not to be acting within the course of employment when he or she is traveling to and from the workplace. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). Thus, the “going and coming” rule ordinarily precludes recovery for an injury sustained while the employee is going to or returning from work. Lepard v. West Memphis Mach. & Welding, 51 Ark. App. 53, 908 S.W.2d 666 (1995).
There are exceptions to this rule. For instance, in Olsten Kimberly Quality Care v. Pettey, supra, the court applied the “traveling men” exception where the employee’s journey is considered part of the service or where travel is an integral part of the job. There, the court affirmed an award of benefits to a traveling nurse who was injured in a car accident en route to a client’s home.
Conversely, in American Red Cross v. Hogan, 13 Ark. App. 194, 681 S.W.2d 417 (1985), we reversed the Commission’s finding of compensability. In that case, the claimant was a nurse who worked in a mobile unit that traveled to various locations to collect blood donations. She was involved in a car accident one day on her way to meet the mobile unit at a designated location. We held that the going and coming rule precluded an award of benefits. See also, e.g., Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000).
In the case at bar, the appellant was not engaged in the service of transporting clients when the accident occurred, nor had she received a call from appellee directing her to perform that service. She was thus not engaged in work-related travel. Instead, she was simply returning to the office after lunch when the accident took place. Because appellant was going to the workplace, we cannot conclude that she was carrying out the employer’s purpose or advancing the employer’s interest, either directly or indirectly, when the accident occurred. The Commission’s decision displays a substantial basis for the denial of relief, and we affirm.
Stroud, C.J., and Griffen, J., agree. | [
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Olly Neal, Judge.
This is an appeal from the denial of a motion to suppress in the Craighead County Circuit Court, after which appellant entered a conditional plea of guilty for possession of methamphetamine and reserved his right to appeal the suppression denial. In denying the motion, the court held that the seizure of appellant was unreasonable under Ark. R. Crim. P. 3.1, but was proper under Ark. R. Crim. P. 2.2. Lamb was sentenced to thirty-six months of supervised probation. On appeal, appellant argues that the trial court erred when it held that his stop was valid and that his constitutional rights were not violated. We reverse and remand.
On July 17, 2000, at 11:45 p.m., Officer Cooper Taylor responded to a call at 1508 Overhill in Jonesboro, Arkansas. Mr. Ronnie Shaver reported a broken windshield on his vehicle. While taking the criminal mischief report at the home, the officer and Shaver noticed a slow-approaching truck, traveling southbound on Overhill, stop in the general vicinity of the intersection with Westwood. A passenger, later identified as appellant, stepped out of the vehicle and walked down the street going eastbound on Westwood. The time was approximately 12:15 a.m. on July 18, 2000.
Officer Taylor became suspicious when he noticed that appellant did not go directly into a residence. He testified that “Mr.'Shaver spoke to me about some problems with a residence south of his on Overhill. He was complaining about suspicious activity, a large number of vehicles in and out at all hours of the day and night.” Shaver indicated to Officer Taylor that he thought appellant could possibly have been involved with the mischief; therefore, the officer got into his vehicle and headed towards appellant to make contact. Taylor made contact with appellant, whereupon he requested to see some identification. Appellant, thereafter, produced a driver’s license. Officer Taylor ran a local check, discovering that appellant had a warrant for failure to appear. He then placed appellant under arrest and performed a search incident to that arrest. He found appellant in possession of a controlled substance, namely methamphetamine.
Taylor testified at the suppression hearing that one of Shaver’s neighbors, Mr. Thetford, heard a window break and saw a vehicle leave the scene. According to Thetford, there appeared to be two male passengers in a sports utility vehicle. Further, the officer testified that “I made contact with this individual because of a combination of my own observations and what Mr. Shaver had related to me. Due to the late hours, the reason I was there, Mr. Shaver’s indications to me, that the person did not go directly into a residence, and he was walking down a street, are reasons I made con tact with this individual.” Again on cross-examination, the officer stated that “I went up and detained Mr. Lamb because he got out of a vehicle and walked down the street, the time of night, it was a residential neighborhood, a crime had occurred prior to my contact with Mr. Lamb, and the statement that a male was involved.”
The trial court, in ruling on the motion to suppress, held that Lamb’s encounter with the police was not a valid stop under Arkansas Rule of Criminal Procedure 3.1. The trial court stated:
the interesting aspect of this stop is the fact that you are talking about midnight in a private neighborhood, a crime has been committed, without question, a crime has been committed. The defendant is within three hundred yards of the area where the crime has been committed. You have officers there who don’t know what happened. They have reports of two individuals about the crime. They have a bare suspicion by one of the persons that this gentleman may be involved, although there is really no basis for that.
Nevertheless, the court found that the officer had authority under Arkansas Rule of Criminal Procedure 2.2 (2001), “to do an investigatory stop of this defendant.”
In reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997); McDaniel v. State, 65 Ark. App. 41, 985 S.W.2d 320 (1999). Due deference is given to the trial court’s findings in the resolution of evidentiary conflicts and determinations of credibility. Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000).
Police-citizen encounters have been classified into three categories. The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997). Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the Fourth Amendment. Id. Rule 2.2 of the Arkansas Rules of Criminal Procedure allows an officer to make the non-seizure police-citizen encounter. The second permissible police-citizen encounter involves one where an officer justifiably restrains an individual who he or she has an “articulable suspicion” has committed or is about to commit a crime. Ark. R. Crim. P. 3.1 (2001); Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998). The final category is the full-scale arrest, which must be based on probable cause. Frette v. City of Springdale, supra.
Although the trial court found the encounter impermissible under Rule 3.1, it nevertheless held appellant’s encounter with Officer Cooper Taylor to be permissible under Rule 2.2. In part, Rule 2.2 provides:
(a) A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.
Ark. R. Crim. P. 2.2 (2001). The insertion of the word “otherwise” in the rule shows beyond question that the officer’s request for information must be in aid of the investigation or prevention of crime. Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998); Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980). “Seizure” occurs when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997). There is nothing in the Constitution that prevents the police from addressing questions to any individual; however, the approach of the citizen pursuant to a policeman’s investigative law enforcement function must be reasonable under the existent circumstances and requires a weighing of the government’s interest for the intrusion against the individual’s right to privacy and personal freedom, with due consideration being given to the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter. McDaniel v. State, 20 Ark. App. 201, 726 S.W.2d 688 (1987).
Based on the attending circumstances giving rise to the police-citizen encounter at hand, we hold that Ark. R. Crim. P. 2.2 is simply inapplicable in this situation, and that appellant’s stop constituted an impermissible stop and detainment under Ark. R.Crim. P. 3.1.
Rule 3.1 of the Arkansas Rules of Criminal Procedure (2001) provides that a law enforcement officer may stop and detain any person he reasonably suspects is committing, has committed, or is about to commit a felony. For purposes of this rule, reasonable suspicion means a suspicion based upon facts or circumstances which give rise to more than a bare, imaginary, or purely conjectural suspicion. Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989). An officer does not have to witness the violation of a statute in order to stop a suspect. Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994). The justification for an investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating a person or vehicle may be involved in criminal activity. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, 459 U.S. 882 (1982).
Among the factors to consider in determining whether an officer has grounds to “reasonably suspect” are the time of day or night the suspect is observed; the particular streets and area involved; any information received from third persons, whether they are known or unknown; the suspect’s proximity to known criminal conduct; and incidence of crime in the immediate neighborhood. Ark. Code Ann. § 16-81-203 (1987); see also Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999).
The facts presented in this case are akin to those found in Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998). In Stewart, an officer pulled over to a curb and asked the appellant to approach his patrol car simply because she stood on the corner in a high-crime area late in the evening. The officer in Stewart was not investigating a nearby crime or a tip from an informant at the time of the encounter, and on appeal, the supreme court held the encounter impermissible under Rule 2.2.
We recognize that the difference in this case is that officer was investigating a nearby crime. However, the problem lies with weighing the government’s interest for the intrusion against Lamb’s right to privacy and personal freedom, with due consideration being given to the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter. Here, similar to the circumstances in Stewart, Officer Taylor drove up next to Lamb and asked him for his name and identification. Nowhere in the record is it evidenced that when Officer Taylor approached Lamb, he told appellant that he was investigating a nearby crime and wanted to see if Lamb could provide any information.
Based upon the totality of the circumstances, the trial court properly ruled that the stop was not one that fell under Rule 3 because, taking into consideration the applicable fourteen factors, the factors present here to support a determination that Sergeant Cooper Taylor had “reasonable suspicion” to stop Lamb were the time of day, his proximity to the crime, and the fact that a crime had happened earlier. Although no exact number of factors are dispositive on the issue of “reasonable suspicion,” the facts suggest that the officer had no particularized, specific, or articulable reason to stop the appellant, but did so only based upon the fact that the victim, Shaver, who was in the house when the incident occurred, stated to the officer that the appellant could have “possibly” been involved. Further, the statement by. the neighbor only indicates that there were two men in a red and tan sports utility vehicle near the scene when he heard the windshield break. The officer testified that he saw a pickup truck, not a sports utility vehicle, containing appellant stop near the scene of the incident, and appellant emerged and began to walk on foot down the side-' walk and went toward no particular residence.
Because the police-citizen encounter here amounted to an unreasonable seizure under Ark. R. Crim. P. 3.1 when Officer Taylor detained Lamb, requested his driver’s license, and ran a local check on him, we reverse the trial court’s denial of the motion to suppress as it was clearly against the preponderance of the evidence and remand for trial.
Reversed and remanded.
Hart and Jennings, JJ., agree. | [
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